Page 1 of 15 ESSAY #3 THE DIMINISHING RETURNS OF COMPLEXITY: THE DESTRUCTION OF PEACE, HEALTH & THE ENVIRONMENT FOCUS: THE ADVERSARIAL JUSTICE SYSTEM – AN ABERRANT HEALTH, HUMAN RIGHTS & WORKPLACE ENVIRONMENT This document is: http://poisoningandlegalaction.com.au/essays/essay3‐diminishing‐returns‐of‐complexity.pdf by Murray Thompson (BAppSci Environmental Health with Distinction 1998, Hons I Social Ecology 1999, Sociology PhD Postgraduate student: University of Western Sydney) PO Box 5761 South Windsor NSW 2756 Australia 2 August, 2010 Email: email@example.com Web sites: http://poisonedpeople.com http://poisoningandlegalaction.com.au How far along a path do we proceed as a species, culture and civilization before it is conceded that we are not advancing and are, rather, engaged in an embrace with degenerative and fatal processes? This Essay examines the adversarial justice system and its contribution to com‐ pounding world problems. A previous letter/essay I authored was titled: EXHAUSTED PESTICIDE POISONING VICTIM FURTHER ABUSED BY LEGAL PROCESS. That essay has been developed further and can be found at: http://poisoningandlegalaction.com.au/essays/essay2‐legal‐process‐abuse.pdf. In this earlier essay I introduce myself and my then 8‐year old son as duel victims of severe pesticide poisoning that occurred in 2000/2001 in my current NSW Dept. of Housing (DOH) unit. This arose when two highly toxic termite pesticide treatments that I had specifically prohibited were forced upon me. The termiticide is called Biflex, a synthetic pyrethroid termiticide containing Bifenthrin. I described my utter exhaustion through multiple negative health impacts that followed the pesticide applications.1 As well, I emphasized the fur‐ther insult of 6+ years (and still going) of litigation against a recalcitrant DOH utterly unwilling to admit to any level of negligence. I understand my case will likely be extended by 1‐2 years through appeals if I win my 2 week trial set for 15th November 2010 in the Supreme Court in Sydney, Civil List. Justice Mark Weinberg: “Whatever else can be said, no case, no matter how complex it may seem, should be allowed to run for months and sometimes years” (Justice Weinberg 2008:17). I received a response to that essay from the Office of the Legal Services Commissioner. The Commis‐sioner’s sympathetic reply noted my concerns regarding litigation being used as a weapon, and the need for legal cases to be independently monitored. The Commissioner’s letter included an eye‐opening and blunt FACT SHEET #18 titled: OPPOSING LEGAL REPRESENTATIVES (Office of the Legal Services Commissioner, 2005). Thus began my education in the adversarial system of justice. I have evaluated this FACT SHEET, 1 Body‐wide joint pains (polyarthralgia); incoordination; massive fatigue; dizziness; muscle spasms/pain; markedly di‐minished eyesight; hearing loss; immune dysfunction; lung congestion; considerable heat sensitivity and intolerance; EMF sensitivity (Electromagnetic Frequency radiation from TVs, mobile phones, machinery); SPERM (motility & mor‐phology) IMPACTS; chronic: headaches, tinnitus, fatigue, kidney stones, gastric reflux, nosebleed, skin irritation, bone density loss, eye discharge; and actual brain damage (defined in brain MRI and Ceretec/SPECT scans) and mem‐ory/organization/sequencing dysfunctions that destroyed my University of Western Sydney Sociology PhD thesis progress, and which have made me largely incompetent, work‐wise. I am slow, inefficient, and prone to considerable errors in all manner of judgements. The effect of these exposures on my emotions (especially fear and anger) has been catastrophic. Finally, I am left with a permanent condition called Multiple Chemical Sensitivity (MCS), a profound sensi‐tivity and negative reaction to chemical odours and medications (including vaccinations).
Page 2 of 15 added my personal observations, and arrived at a constellation of ‘weird science’ concepts expressed by the civil and criminal adversarial justice systems. According to the Hon Wayne Martin, Chief Justice of Western Australia, “the Australian legal system is generally perceived to be out of touch, expensive, slow, technical, complex, and in many respects incomprehensible” (Justice Martin 2008:3). I see the FACT SHEET as briefly and clearly outlining major dysfunctions in our adversarial system of jus‐tice, with the implications of these problems deepening further into a hodgepodge of extremes and con‐tradictions. It says (my emphasis): your legal representative can be expected to say or do things which go against the interests of other parties, and other parties’ legal representatives can be expected to say or do things which go against your interests. You cannot interfere in the professional relationship between another party and their legal representative… You can only complain about an opposing legal representative’s course of action if you have evidence that they are not acting on instructions, or are acting on instructions that they know are untrue or unethical (Office of the Legal Services Commissioner, 2005). Firstly, I wish to assert that the two bulleted points above represent a massive, in situ and accepted dys‐function. That is, the framing of a monumental waste of time and resources via sets of Plaintiff‐Defendant dichotomies at war. This institutionalized combat should not exist in a truly enlightened soci‐ety. They represent a ridiculously complex and immature striving for supremacy inside a commercial sys‐tem carrying the taint of vested interests. They also signify stitched‐up and prejudiced rules coddling precious corporate egos and greedy attitudes obsessed with an endless summer harvesting of legal fees: the expanding legal task and elastic accounting (Justice Allsop, 2008:2) of the legal system. How did the legal system configure for itself so much benefit? This formalized schoolyard scrap and grab mentality generates a long‐winded and exhausting process that conveniently maintains a profitable rage while dancing away from the genuine responsibilities that are demanded by the succinct elucidation of simple truth. “…truth should be the objective of the system” (Justice McClellan 2008:4). Secondly, my legal case has been purposely extended leaving me exhausted, sicker and poorer. If a mon‐eyed opponent plays with you using unethical and abusive tactics, then where does that ‘legal’ system stand in terms of truth and error, good and evil? “It is error alone which needs the support of government. Truth can stand by itself.” rd (Thomas Jefferson, 1743‐1826, 3 American President). “It is error only, and not truth, that shrinks from inquiry.” (Thomas Paine, 1737‐1809, Anglo‐American political theorist, writer) My personal WW2 of litigation against the DOH leaves me with the distinct impression of “a failure of the system” (Justice Allsop 2008:3) and leads me now to question competence and ethics in both govern‐ment and the legal system.2 I do not see any evidence of the mythical “THERAPEUTIC JURISPRUDENCE” inside an adversarial legal workplace that continues to abuse me to a point where I have considered suicide! The FACT SHEET hints at a compound series of flawed premises upon which the legal process appears to be based. I offer below simple points of contention drawing out the defective nature of these premises, along with disturbing additional material: 2 “The first key to wisdom is constant and frequent questioning, for by doubting we are led to question and by ques‐tioning we arrive at the truth”. Peter Abelard, French philosopher, priest; 1079‐1142).
Page 3 of 15 1. Generally: while theoretically harnessing “the power of self‐interest on each side to unearth the best evidence” (Law Reform Commission of WA, no date:25), legal teams, in seeking to establish protection for their clients, may ultimately generate an unavoidable and powerful investment in skewed bias in terms of the essential nature of the argument put forth. For example, we may be left with “percep‐ tions of bias in experts who give evidence” (Justice McClellan 2008:18). This manipulation of knowl‐ edge and interpretation can occur to a point where the argument structures a fabricated story, a pic‐ ture of events and analyses that may not even manage to resemble the somewhat disappointing “ap‐ proximate truth” (Law Reform Commission of Western Australia, no date:25) that seems to be the rather mediocre goal of the adversarial system. But there is no need for protection and bias if we view the unencumbered truth as being most important. In my case, there exists an abject denial that one can be poisoned from a termiticide application, even though the generation of my symptoms was almost immediate upon exposure to the pesticide vapours entering my unit. You have to wonder at what level intellect is operating when so‐called scientific professionals don’t even seem to recognize the easy mobility and toxicity of solvents as a component of some pesticides. Points 3. c. and d. provide ideas here. 2. Put another way, and looking toward a more ideal concept of resolving the issue of lying conflict3, legal teams should not be bound to protect their clients vigorously. This is because protection at all costs automatically invests in an institutionalized form of Obsessive Compulsive Disorder (OCD). This disor‐ der ultimately frames the compulsion to protect the client‐investment from the unpalatable or difficult historical truth of a matter, while enhancing the reputation of the legal firm via a status‐enhancing win. However, if we were to imagine a more efficient and less deceitful legal workplace environment in which to settle disputes, there would be no investment on any level to protect and no corporate profile to defend, advance and polish. There would be no compulsion to win because there would be no schizophrenic and antagonistic legal dichotomy creating opposing realities. The very existence of separate law firms “seeing themselves predominantly as part of big business” (Justice Weinberg 2008:23; quote taken slightly out of context), and exposed to the temptations of “volume litigation” (Justice Allsop 2008:2) is, in the very first instance, a formative insult to what should be the compara‐ tively neutral and incorruptible process of uncovering the unencumbered truth within a simple com‐ posite (non‐dualistic) format. 3. Further toward addressing this profound error, the OCD and income imperatives to protect clients, generate fees, and win the legal brawl ensures that ethical abuses will be accepted and perpetuated inside the legal process: 3 “In an adversarial system creating business is best done by creating + maintaining conflict and unfortunately in our society this appears to be supporting the liar” (The Richard Hillman Foundation, 2008 [online]. Article: Only VICTIMS Cry Out! Source: http://www.rhfinc.org.au/article/familylaw.html. Accessed: 18th March, 2010).
Page 4 of 15 a. The Defendant wastes time and resources attacking the injury victim’s character, minimizing or denying documented and measurable injury, and serving, sometimes, pointless subpoenas that do not even remotely relate to the litigation issue. b. Experts’ current and beneficial evidence can be destroyed inside a trial in an infantile attack by the opposing side. Lies can win if the attack is dexterously waged (see Justice McClellan’s take on this4). Today, this is especially apparent in terms of “a system that requires us to treat others as adversaries and to battle each other in ineffective dehumanizing formalized forums… [where] we all become casualties of the system and each other” (Redgwell 2009). The degenerative trend of today’s (legal) “declining standards” (Justice Weinberg, 2008:1) is obvious here, along with an inevi‐ table and almost universal ““erosion of faith” in the adversarial system” (Justice McClellan 2008:6)5. c. Further, the Defendant in a chemical injury case might hire bias: medical/science professionals who suspiciously declare that chemicals or chemical applications cannot poison people.6 More smoke, mirrors and bad science wasting time and failing to address the horrible truth of major is‐ sues (such as the growing worldwide tsunami pandemic of pesticide‐induced diseases7). d. More specifically in terms of the dumbing down of knowledge in my legal case, medical/science experts can lazily appeal to strange forms of amazingly inclusive ‘scientific’ logic that interprets unmonitored chemical/pesticide behaviour as magically acting precisely according to inflexible chemical doctrines of remarkable immobility in soil and impossibility in terms of human poison‐ ing. This magic excludes current research showing clearly that chemicals or their extended vapours move8 and that termite chemical barrier applications kill termites beyond the physical placement of 4 “I have previously written of the reluctance and, for many, the complete refusal of experts to give evidence in an adversarial trial where as they perceive it, probably correctly, the objective of the parties, or perhaps one of them, is not to identify the true position but to reward a winner in a contest. They refuse to subject themselves to a process where a skilful advocate is briefed to destroy the expert’s opinion, who is confined to answering the advocate’s questions which have been carefully crafted to expose the client’s case and obfuscate or deny the opponent’s position. Whatever be the benefits of the adversary process, we ignore the response of contemporary experts at the risk of the loss of public con‐fidence in the civil justice process.” (Justice McClellan 2008:19) 5 Citing himself in an earlier article: “ADR – An Introduction”, Speech delivered to the Chinese National Judges’ Con‐ference, China, in April 2008, wherein he cited Sir Anthony Mason (the former Chief Justice of the Australian High Court), “The Future of Adversarial Justice”, a paper given at the 17th AIJA Annual Conference on 6‐8 August 1999. 6 Of interest here: “Helen Seabrook, of Unisearch, an offshoot of the University of NSW, says it is part of her job to negotiate with lawyers who pressure an expert to "modify a choice of phrase and emphasis in the report". She does not find lawyers manoeuvres unethical. "It is very rare that you cant find a solution that the expert will find ethically ac‐ceptable."” (Bacon 2003) Also see: 1. http://www.secretariat.unsw.edu.au/acboardcom/minutes/cor/CORm8_04.pdf [p. 3]; 2. http://www.audit.nsw.gov.au/publications/reports/financial/2005/vol2/18‐0454_University%20of%20New%20South%20Wales.pdf [p. 57]; 3. http://www.aph.gov.au/Senate/Committee/EET_CTTE/completed_inquiries/2002‐04/research_agencies/report/d01.htm (do word search on: “conflict of interest”; and 4. http://www.auqa.edu.au/qualityaudit/reports/auditreport_unsw_2006.doc [p. 16]. This document is no longer available online. My downloaded copy of this document states on page 16: “The Audit Panel notes the introduction of a University Conflict of Interest Policy, a revised Protected Disclosures Policy and revised grievance procedures as evi‐dence of organisational follow‐up from issues raised by the investigation of allegations of research misconduct, includ‐ing a recommendation for the appointment of a University Grievance Manager. While the matter in relation to research misconduct has been finalised, the University is awaiting a report from the NSW Ombudsman on its management of complaints prompted by the particular case.” All accessed: August 2009. 7 "Hundreds of thousands of people are dying around the world each year from the effects of the use, or misuse, of pesticides" (Konradsen, van der Hoek, Cole, Hutchinson, Daisley, Singh & Eddleston 2003:249‐261). “Another 200 chemicals are known to cause clinical neurotoxic effects in adults [p.2167]… Solvent neurotoxicity in adults is well known from acute poisoning cases and from occupational studies [p.2172]… The five substances recog‐nised as causes of developmental neurotoxicity show similar patterns in the development of scientific documentation of their risks. This pattern of discovery started in each instance with recognition of adult neurotoxicity, typically in people with occupational exposure, and of episodes of acute, high‐dose poisoning in children. The combined evidence suggests that neuro developmental disorders caused by industrial chemicals has created a si‐lent pandemic in modern society. Although these chemicals might have caused impaired brain development in millions of children worldwide, the profound effects of such a pandemic are not apparent from available health statistics. Addi‐tionally, as shown by this Review, only a few chemical causes have been recognised so the full effects of our industrial activities could be substantially greater than recognised at present. The consequences of a pandemic of developmental neurotoxicity extend beyond descriptive data for incidence and prevalence of clinically diagnosed disorders.1,3 Increased risk of Parkinson’s disease97 or other neurodegenerative dis‐eases98 is a further potential consequence of the pandemic” [p.2174] (Grandjean & Landrigan 2006). 8 “…it is only recently that it has been generally recognized that there is a second contaminant transport process which will occur even through a very low hydraulic conductivity clay liner: that process is chemical diffusion… diffusion
Page 5 of 15 the pesticide.9 These ‘experts’ fail to recognize what a Google search can uncover: that pesticides penetrated my unit’s highly porous concrete slab underlying two joined units10 (this being why my elderly neighbour almost died in 2001 with numerous bouts of bronchitis and double pneumonia requiring hospitalization). “The possibility of gaps or cracks in the slab that may have allowed penetration of the product or its vapours into the interior of your unit cannot be discounted…” (APVMA Adverse Experience Reporting Program Letter/Report, 28 July 2004). My legal team and associated science/medical professionals are steadfastly attempting to elucidate this INCONVEN‐ IENT TRUTH, not repudiate it with magical fantasies based in unscientific bias. 4. Ever noticed? Within any adversarial system or framework institutionalized OCD engineers a massive and wasteful paper shuffling exercise on two ridiculously opposing and combative fronts. In politics two main parties shuffle advertising and waste precious dollars. In the legal system we first notice un‐ cooperative “discovery and preliminary matters” (Chief Magistrate Judge Grimm [USA], 2008:2)11 re‐ sulting in years where arguments and positions are advertised. Interestingly, very deep sociological aspects of this fanaticism may be viewed subliminally and ontologically as a neurotic and inadequate ‘purification’ device: a religious‐like obsession with scrupulosity framed inside detailed and burden‐ some activity ultimately generated as a function of almost primal guilt. This unavoidable and unre‐ solvable guilt springs from an uncomfortable awareness of a cascade of formative, developmental and normalized inadequacies within a toxic legal framework. This type of phenomenon is a widespread occurrence within human society. 5. My injured health status (pesticide poisoning) was not immediately and intelligently factored into the genesis and functionality of the legal inquiry process in my case when it started. Nor does the legal system appear to be capable of therapeutically doing so. As a result, the original problem of the De‐ fendant’s indifference, negligence and failure of Duty of Care (not acting appropriately on the basis of repeated health alerts), the subsequent negligent deployment of pesticide on two occasions, my mounting shock as a result of these ‘invasions’, and the consequent generation of a raft of compound‐ ing physical and psychological injuries all became synergized and absorbed by a further insult, this be‐ ing MY DEATHLY ENSHROUDING AS A POISONING AND BRAIN DAMAGED VICTIM INSIDE A PROCESS THAT NOW FAILS TO RECOGNISE AND COMPENSATE FOR AN AGGRAVATED AND LAYERED HEALTH EVENT: LEGAL STRESS AMPLIFYING POISONING SYMPTOMS AND PSYCHOLOGICAL SHOCK LAYERED OVER THE STRESS OF POISONING AND SHOCK AMPLIFYING POISONING SYMPTOMS. When bureauc‐ racy attacks! Error overlays error, insult binds to insult, incomprehension follows incomprehension, and scrambled complexity builds on scrambled complexity. A dynamically flawed legal system takes an injury, and then magnifies it further via stupidly mandated argument and ‘protection’ inside an ex‐ hausting and insanely expensive fee‐harvesting process x 2. Shades of Bleak House and justice delayed and denied12, while I have also suffered a ‘minor’ stroke on top of all my poisoning symptoms and out‐ comes (and been prescribed Aspro Protect)! But, who cares if the litigant is that compromised? Cer‐ may be the dominant contaminant transport mechanism in a well‐constructed clay liner. Furthermore, contaminants can escape from a waste disposal site, by diffusion through a liner, even if water flow in the liner is into the landfill” (Rowe, R.K. 1994). 9 “Termites were killed in bifenthrin treatments, and this suggested the movement of the chemical from treated into untreated sections. Su & Scheffrahn (1990) reported the movement of a pyrethroid (tralomethrin) from treated sand to the agar layer in their experiment against R. flavipes, causing high mortalities even though the termites did not reach the treated area. Many other researchers also reported the role of vapour phase in their experiments. Ebeling & Pence (1958) noticed that the vapour phase of chlorinated hydrocarbons had penetrated into areas beyond the treated soil and was killing the termites… Although bifenthrin has low volatility when applied on dry soil, it possesses a higher mi‐gration potential in wetter conditions (Fecko 1999). The movement of the termiticide (and emulsifier) was probably facilitated by water solubility (Smith & Rust 1990; 1991) and vapor pressure (Su et al. 1982; Smith & Rust 1990; 1991). When the vapor pressure is high enough, some of the termites might have satisfactory amounts of toxicant deposited on the cuticle. Penetration of the toxicant through the cuticle will slowly affect the termites without direct termiticide contact (Su et al. 1982; Smith & Rust 1991). This may explain the death of the termites in the untreated section.” (Yeoh & Lee 2007) 10 "Though fairly impervious to water movement, concrete is easily penetrated by vapors and solvents. It is also prone to cracking. For these reasons, the Environmental Protection Agency (EPA) believes that concrete alone may not provide an effective barrier to pesticide movement and has proposed that concrete in pesticide secondary con‐tainment structures be sealed or coated to reduce its permeability." (Broder & Nguyen 1995) 11 Note also: “It has recently been estimated that in one case currently being brought in the Federal Court, the cost of discovery alone will exceed $20 million. That is both outrageous and intolerable. It matters not in the least that the parties to that litigation are large corporate entities, presumably able and willing to ensure that they leave no stone unturned in pursuing their interests.” (Justice Weinberg, 2008:10). 12 “The phrase ‘justice delayed is justice denied’ applies to all aspects of the legal system…” (P. Dodd [solicitor] 2009.
Page 6 of 15 tainly not a legal system that blunders monstrously and monolithically toward its light at the end of the black tunnel imposed upon me. At least I still have half a brain to think with and help rationalize the unending trauma. 6. Almost anything can be justified within a precious legal framework because the “professional relation‐ ship” between each client and their legal representatives has in real terms been placed above ethics and health. What the legal process accepts as normal, and what the combatants can potentially do, has established as a format superior to basic ethics, human rights and a form of Duty of Care that ap‐ pears all but invisible to the process. What is apparent here is an in‐built dispensation for the ‘holy’ professional relationship and elongated litigation process. This is not dissimilar to stating that God is on your side… Therefore, if a legal system is dependent upon justifying itself, then that system will tend to disregard most other concerns. It wants what it wants because it sees itself as being more im‐ portant than anything else. Elevated. Worse still, pathological justification within authority structures leads ultimately to forms of fascism.13 7. Further, the formative design flaws in the adversarial legal process have ultimately made possible and legal: PROTECTED (even required) psychological abuse or bullying of the opponent across the inflamed legal divide. This dangerously verges on PROTECTED assault and a repudiation of essential human rights. SUICIDES ARISE OUT OF THIS ADVERSARIAL PERVERSITY!14 What if a legal team actually hoped for a suicide in order to make their opposition go away? That these gross dysfunctions exist as realities or potentials and are, at least in part, encouraged and used by the adversarial justice system, should be a source of absolute outrage amongst all thinking persons. This demonstrates the dysfunc‐ tional realities and pathological potential of a negative and destructive system reliant upon the estab‐ lishment and preservation of conflict. 8. If you know that a chemical or other injury makes a person suicidal, and if you hide behind a legal process that allows you to call a Plaintiff a liar, a miscreant or worse; and if you prolong legal action (thus making the extended process into an abusive prison sentence) because a government depart‐ ment’s bottom line is more important than human physical or mental health, or life; then how can this not be called fascism? ‘Professional’ fascism? This is just one way in which complexity falls over itself. 9. More generally, the adversarial legal system enables too many to participate in bad character: legal dummy spitting over minor or inappropriately amplified issues, comments and insults resulting in too many suing too many.15 Add to this the prominent catastrophe of the well funded stifling of opinion and activism through suing opponents. Then arises the consequent exhausting, bankrupting and de‐ struction of those sued.16 What we are witnessing in the above and other general examples of liti‐ 13 “In very broad terms, there can be said to be two main concerns that have been debated in this journal: the "what" and the "how" of lawyers ethics. The first of these focuses on the content of lawyers ethics, both empirically and nor‐matively, examining issues such as whether lawyers should act for any client irrespective of the morality of their objec‐tives, …how far lawyers should go in pursuing client interests, …how to reconcile conflicts of interest, …whether there should be limits to the lawyers duty of confidentiality, …how to safeguard clients money …and how best to ensure ac‐cess to justice… The second concern of legal ethics raises the question of how to ensure that lawyers actually uphold whatever norms are regarded as appropriate; or, for those who recognise that there are no categorically correct an‐swers to ethical dilemmas, with the question of how to ensure that lawyers at least care about and are committed to acting morally.” (Nicolson, D. & Webb, J. 2004) 14 For example, the Canadian “government has already been presented with studies linking the adversarial system of justice to suicides by parents going through it” (Eckert, T., 2003). Also: “The Equal Parenting Network estimates that as many as 100 people (mostly dads) suicide each year as a direct result, and another 200 people (mostly dads) suicide each year as an indirect result, of the injustice and prejudice against fathers, and against non‐custodial parents due to the Family Court system and the Child Support Agency regime… These factors together with the lies and distortions of truth generated in an adversarial system, not to mention the huge legal fees and the extended period of stress and un‐certainty, constitute a powerful driver of suicide and murder‐suicide” (Equal Parenting Network, 2007). 15 See: http://www.dallasfortworthinjurylawyer.com/2009/01/california_to_rescue_good_sama.html#more in terms of rescuers being sued (Malik, S. 2009). Also: “On 14 December 2004, Gunns filed a 216‐page, $6.3‐million claim against a group of conservationists and or‐ganisations who became known as the Gunns 20. The writ was an extraordinary document that sought to sue a penni‐less grandmother who had opposed logging in her district; a national political leader, Senator Bob Brown; a doctor who had raised public‐health concerns about woodchip piles; prominent conservationists; Australias leading wilderness‐conservation organisation, the Wilderness Society; a film‐maker; and several day protesters.” (Flanagan, R. 2007). Is this not an example of disguising motives “by the formalities of justice” (Gibbon, E. 1776); ‘justice’ used as a litiga‐tion weapon in favour of corporate fascism? 16 How do we arrive at “a fair process between parties who may have unequal resources”? (Justice McClellan 2008:14). Also: “despite strenuous efforts currently being undertaken, there will be little, if any, improvement in access
Page 7 of 15 gant immaturity and fascism is the wrecking of the ‘democratic’ fabric of society and a disturbing contribution to a growing environmental holocaust. This pathological burden of fractious and totali‐ tarian corporate litigation ultimately establishes the repudiation of truth17 by suppressing information, education, freedom of speech, and environmental recovery (especially when truth is cocooned inside a settlement). In other words, “legal gamesmanship in tricks of discovery and trial tactics that weaken the prospects of getting to the truth” (Justice Rudolph J. Gerber, no date). The legal process, then, has become so warped and loaded that it has misrepresented denial and repudiation as discovery, and turned inquiry and true justice into a TV power‐play money game. It has made the defamation of medical professionals, corporate sponsorship and bias in science and medicine, the failure of legal process Duty of Care, litigation fascism and human rights abuses, the suppression of PEACE, and pre‐ vention from education… legal. “The abnormal has become normal” (McGraw, P. 2010). What a monumental internal contradiction for a society that espouses, today, so much aversion for ra‐cism, totalitarianism, environmental damage, bad sports behaviour, vandalism, inordinate bank profits, golden handshakes, and paedophilia! Hiding contextual truth from an argument is fraud. Repudiating truth is book burning. Promoting arguments and conflict for the sake of making money… is industrial and political18. How did the legal system manage to abrogate Duty of Care on all levels? This obscene en‐cumbrance that denies medical context and essential human rights means that: THE LEGAL SYSTEM HAS ASSUMED AUTHORITY OVER NATURE AND HUMAN RIGHTS IN BECOMING A VAST WORKPLACE ENVIRONMENT THAT CHOREOGRAPHS THE ABUSE OF HUMAN DEMOCRATIC, EDUCATIONAL, ETHICAL, FINANCIAL, MENTAL AND PHYSICAL HEALTH! Therefore, our adversarial system is ultimately a functionally illegal, incomprehensible, unethical, inhu‐mane, inefficient and destructive way of conducting an investigation. The imperatives to advance and extend conflict, and create and substantiate stories, makes justice a game19 resulting in the stripping of real context from real situations and issues. Games delude and destroy. We are paying the burdensome price of “a highly regulated and complex society [that] cannot function without a capacity to obtain qual‐ity legal advice” (Justice Weinberg 2008:9; footnote 2). HOWEVER, if our society is complex and degen‐erate (typical features of most empires before they implode20), and if the legal process is likewise overly “complex” (as Justice Martin noted previously) and corrupted from the obsessive and unmanaged “dimin‐ to justice” (Justice Weinberg 2008:4). “Questions of access to justice and fairness may be mentioned and inadequacies lamented but the identified problems are accepted as incapable of an effective response” (McClellan 2008:6). 17 “The trouble with lying and deceiving is that their efficiency depends entirely upon a clear notion of the truth that the liar and deceiver wishes to hide. In this sense, truth, even if it does not prevail in public, possesses an ineradicable primacy over all falsehoods” (Arendt, H. 1969). 18 See: Keen, no date: “trade may also fuel war by providing incentives for violence and the means of carrying out vio‐lence.” 19 “This highly paid, upstanding member of the community said “if I am defending a bloke I want to make life difficult for their witnesses”. He went on to argue “I’m not there to find the truth … no one’s there to find the truth”. An adver‐sarial legal system is never going to force people to behave well” (Biggs, 2009). 20 Like “the Western Roman Empire [that] could no longer afford the problem of its own Existence” (Tainter, 2006:97). Also see: An Eruption Of Reality: Has our society become too complex to sustain? (Monbiot, 2010).
Page 8 of 15 ishing returns to complexity [that] have made societies vulnerable to collapse” (Tainter 2006:94, citing Tainter, 1988, 1999), then WHERE IS THIS “QUALITY” EXPECTED TO BE FOUND? “We cant avoid the fact that the adversary system of jury trial does make jus‐ tice a game, in which sometimes the worst team wins, because it has a dream team of lawyers, or because theres something gone wrong in the jury room, or because the judge is biased” (Geoffrey Robertson QC, 1998). Danger to all is perpetuated because we are internally culturally embattled and conflicted via legal, politi‐cal and economic adversarialism.21 We are unable to learn from error because adversarial conflict ‘pro‐tects’, repudiates and hides truth. This general political child of the human condition has typically estab‐lished as cycles of historical degeneracy leading to collapses of whole civilizations. Because we can’t in‐controvertibly learn across generations, we are now immersed inside a miasma of critical and compound‐ing civilisation‐scale problems. “…we are increasingly confronted with complex, interconnected social and envi‐ronmental problems that span disciplines, knowledge bases and value systems” (Emeritus Professor Valerie Brown AO, BSc MEd PhD 2010). We are under siege by a plague of modern physical and psychiatric disorders arising out of displaced and shattered natural environments. Public health on a planetary scale is threatened. We are now toxico‐logically and psychiatrically handicapped through destructive human activities, including worldwide chemical poisoning22 and insane adversarial systems attacking employment, freedom of thought, know‐ledge and generational learning. We are “monitoring our own extinction” (Professor Stuart Hill, 1999, pers. comm.) because locking up knowledge about chemical toxicity inside legal settlements (or by way of threats) is advancing generational amnesia. KNOWLEDGE THAT COULD SAVE LIVES AND REPAIR AND ADVANCE CIVILIZATION IS BEING LOCKED AND LOST INSIDE COMBATIVE LITIGATION. THIS REPRESENTS A SOCIOLOGICAL EXTINCTION LEVEL EVENT AND MORE… “History shows that degeneration of the criminal justice system contributes greatly to the downfall of states, and is a sign of rot within a political system” (Aulich 2006). "...in the absence of the truth, all of us stand helpless to defend ourselves, our families and our health" (Erin Brockovich) (http://www.brockovich.com/philosophy.html) There is more at stake inside this legal issue than we can possibly imagine. We need a better way to dis‐cover fuller, context‐dependent truth.23 TRUTH is what matters, not protecting clients, winning argu‐ments, establishing careers, or multiplying fees on the crucible of an injured litigant’s misery. We need to be thinking INTEGRATIVELY on deep ontological levels. We should be aiming for a global society with more peaceful systems of politics, economics and justice, and a better prospect of truth, understanding, health and sustainability: “mutualism replac[ing] adversarialism.” (Karlberg & Ronald 2004) 21 “Robert Kagan has described the American approach to regulation as “adversarial legalism” to reflect a legal style that is more complex, formal, adversarial and costly than that of other countries. He attributes adversarial legalism to a “vicious cycle.” While “Americans want government to do more,” government is also “mistrusted.” Thus, “Americans seek to achieve their goals by demanding more of government while controlling it still further.” Bureaucracies, as a result, are “constrained by formal requirements and buffered by threats of litigation and judicial review.”2” (Shapiro, 2002) 22 "Pollution causes some people to commit violent crimes: In our myopia, weve neglected this obvious possibility. Yet a rapidly expanding body of research shows that heavy metals such as lead and pesticides decrease mental ability and increase aggressiveness" (Hatherill, 1999). 23 “Rosenbaum calls for a "morally inspired transformation of the legal system," a "massive attitude adjustment" that would replace the sterile formality of the law with conscience and spirituality.” (Reed Business Information, no date).
Page 9 of 15 We cannot continue to fight – legally and in any other domain – the way we do now, and somehow expect to prosper and survive as a species. Please write or email me should you wish to offer any advice or comments regarding my manifold con‐cerns. Murray Thompson, BAppSc Environmental Health with Distinction 1998 (Australian Institute of Environ-mental Health [NSW] Division Award for Best Overall Graduating Student), Hons I Social Ecology 1999, Cur-rent Sociology PhD Postgraduate Student: University of Western SydneyNOTE: This essay or a notification of the online location of this essay has been sent to numerous other recipients (see: http://poisoningandlegalaction.com.au/letters/essay3complexity‐letter‐recipients.htm). REFERENCES Abelard, P. [Peter; French philosopher, priest; 1079‐1142], in Your Ultimate Success Quotation Library [computer soft‐ware] 2004. (www.cybernation.com). Allsop, J. [Justice; President, Court of Appeal NSW] 2008 [online]. Complex Litigation [Edited transcript], Conference on the Australian Justice System in 2020, National Judicial College of Australia, 25 October 2008. Source: http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2008/Sydney%20conf%2008/Allsop%20paper%20revised.pdf; accessed: 8th April 2010 Arendt, H. [1906‐1975, German‐born American political philosopher], 1969. ‘Lying in Politics’, Crises of the Republic. Harcourt Brace Jovanovich, Inc , New York. Aulich, S. [Graduate of the Lazarski School of Commerce and Law in Warsaw (Master of Laws) and the George Washing‐ton University Law School (LL.M.)] 2006 [online]. THE CORROSION OF THE AMERICAN CRIMINAL JUSTICE SYSTEM, in The Europen Courier, September 23, 2006. Source: http://europeancourier.org/CriminalJustice_9_23_06.htm; accessed: 25th April 2010. Bacon, W., 2003 [online]. A Matter of Opinion: If your expert witness wont support your case, you can just change his report or get another expert. Wheres the justice in that, Wendy Bacon asks. Date: 06/07/2000. [p. 4] Source: http://www.acij.uts.edu.au/archives/profprac/Amatterofopinion.pdf; accessed: 18th March 2010.) Biggs, B., 2009 [online]. Love, s*x, pride and morality. ONLINE opinion: Australia’s e‐journal of social and political de‐bate. The National Forum. Source: http://www.onlineopinion.com.au/view.asp?article=8950; accessed: 18th March, 2010. Broder, M.F. [Agricultural Engineer] & Nguyen, D.T. [Corrosion Specialist] 1995 [online]. ‘INTRODUCTION’ in Coating Concrete Secondary Containment Structures Exposed to Agrichemicals. Land and Water Sciences Environmental Re‐search Center, Muscle Shoals, Alabama 35662, June 1995, Tennessee Valley Authority; accessed: August 2009. Source: http://www.osti.gov/bridge/purl.cover.jsp;jsessionid=9B60667EE878CBC7004A31B58ED998B6?purl=/236249‐iW80zX/webviewable/. Brown, V. [Emeritus Professor Valerie Brown AO, BSc MEd PhD] [Editor] 2010. Tackling Wicked Problems. Through the Transdisciplinary Imagination. Eds. Valerie A Brown, John A Harris, Jacqueline Y Russell. Earthscan, June 2010. Source: http://www.publish.csiro.au/pid/6548.htm; accessed: 3 May 2010. Dodd, P. [solicitor] 2009. Augmenting the role of the Coroner to enhance suicide prevention: Submission to Senate Community Affairs Committee Inquiry into suicide in Australia. 27th November. Public Interest Advocacy Centre Ltd. Level 9, 299 Elizabeth Street, Sydney NSW 2000. Source: http://www.piac.asn.au/publications/pubs/09.11.27%20PIAC%20Suicide%20Sub.pdf; accessed: 20th April 2010.
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Page 13 of 15 http://idisk.mac.com/chowyang/Public/091.pdf, accessed: August 2009) See: http://poisonedpeople.com/bifenthrin.htm.