Supreme Court of Tasmania

Remarks for Opening of the Tasmanian Legal Year 2013, Church Service at St David’s Anglican Cathedral, Hobart

1 February 2013

Luke 10:25-37 – The Good Samaritan

It’s a pleasure to be here in Hobart’s beautiful Anglican cathedral for this important service. I was very pleased to be asked by the Chief Justice to speak, and thank him for the opportunity.

Before I start, I’d like to acknowledge the traditional owners of this land theMuwinina people - to pay respect to those that have passed before us and to acknowledge today’s Tasmanian Aboriginal community who are the custodians of this land.

The opening of the legal year church service dates back to the Middle Ages, when judges gathered in Westminster Abbey to pray for guidance for the year ahead. Hundreds of years later, the tradition continues. For me at least, there is something very appealing about praying for guidance! Like our Medieval colleagues, I’m sure we all recognise that our work is often difficult and demanding. We need to expertise to do it well. But as the Good Samaritan story shows, expertise alone is not enough. The lawyer had knowledge, but more was required.

In fact, the story points to our need for a bigger vision of our role. One that goes beyond knowledge. One that gives purpose and sustains our work. I suggest that seeing our lives inthe law as a form of public service can be this vision. This morning, I want to encourage you to reflect on this vision of law as public service. I hope that it will guide you in the year ahead.

I’m now in my 20th year as a lawyer. And I’ve spent most of that time exploring what it means to be engaged in law as public service. But I should confess that service through law was for many years the furthest thing from my mind. A strong sense of natural justice has motivated me from my earliest memories. A good friend in primary school was the daughter of Irish migrants. She had a lovely Irish lilt, which some of the other children didn’t appreciate. She drew the attention of the school bully and was cruelly teased. I still remember the bemused outrage I felt, that something as ordinary as the way she spoke would single her out for such treatment.

So the idea that where people act unfairly, this must be challenged, was something that I latched onto early and never really let go of. But I didn’t connect that with law. So I was pretty surprised when my careers counsellor suggested that I apply to law school – and even more surprised to get in! Unfortunately – and with apologies to the law professors here today - law school was a disappointment … I found a great deal of it very dull! And worse than that, it felt disconnected from the reality of people’s lives. There seemed to be a big gap between facing down bullies and learning about the law of 19th century shipping, or about boilermakers and the Constitution. Even working out how that snail got into the bottle held limited appeal! I struggled and often thought of giving up.

But I had also volunteered at community legal centres, first in Fitzroy in Melbourne and then in Marrickville and at the Kingsford Legal Centre in Sydney. Those experiences were crucial in helping me realise the connection between the law and the daily struggles of disadvantaged people. I met lawyers who worked at firms or at the Bar during the day, and who then volunteered their time pro bono in the evening. It was a revelation. I glimpsed a fresh vision of the law, anchored in service.

I carried this vision into my early legal practice. At Phillips Fox in Sydney I was involved in pro bono work for the Stolen Generations. At Clayton Utz in Melbourne I combined construction litigation with pro bono work and the coordination of the firm’s pro bono program. I came to believe that the best lawyers were those who approached their professional practice with this vision of law as public service. Many of them did pro bono work as their way of living this out. I remember one of the toughest litigation partners in the firm – he struck fear into the heart of every grad lawyer – explaining how his belief in access to justice – and his pro bono work - motivated and sustained his commitment to the law. It was enormously satisfying to support lawyers like him in this work.

My legal practice forged in me a persistent belief in the power of law as public service. For me, this has been manifest through pro bono work. So now, at Public Interest Law Clearing House, I’m living my dream job! When Sir Anthony Mason launched PILCH in 1994 he said that we are about “enhancing the quality of our public life and the workings of our democratic form of governance.” PILCH nurtures the vision of law as public service through pro bono. We provide lawyers with practical ways of acting on this vision.

We connect disadvantaged people who need legal services with lawyers who will act for free. And we have programs for specific groups – the homeless and seniors, and not for profit organisations. We also advocate to improve laws, policy and practice which cause or perpetuate disadvantage.

This is a practical example of law as public service. But it’s rarely easy or glamorous. Many clients don’t just have a legal problem. They often struggle with illness, homelessness, and relationship breakdown. Their legal problems can be time consuming to resolve. Despite this, we see lawyers rise to the challenge time and again. There are countless stories – let me tell you just one.

Tracy endured 9 years of abuse at the hands of a violent partner. She finally summoned up the courage to leave, but soon found herself struggling with depression. To make matters worse, she became ensnared in the debts of her former partner. The banks, unable to recover their money from him, turned their efforts to Tracy. She had no money to repay them. Facing homelessness, her situation was desperate. Happily for Tracy she found her way to PILCH. And we referred her to pro bono lawyers. With their help, she was able to repay the debts and recover money owed to her by her former partner. She’s now in stable accommodation and starting to rebuild her life.

Not all of you will be able to help individuals like Tracy. But there are opportunities to use your skills for public service in different ways. Like uncovering unjust laws and seeking to change them. Last year, PILCH was approached by a young couple who were renting a house. They were very distressed – they had received a letter from the State Revenue Office demanding that they pay almost $40,000, being the unpaid land tax on the property. They were astonished – the debt was owed to the government by the property owner. How could they be liable for it? PILCH connected them with land tax specialists. They found that an obscure section of the Land Tax Act did in fact give the government the right to claim unpaid land tax from a tenant, if they could not recover it from the landlord. It was an extraordinary and unjust law. The lawyers wrote to both the SRO and the AG, pointing out the unfairness of the law and suggesting that common sense should prevail. I’m pleased to report that in this case – with a little prompting from the Herald Sun! – the SRO withdrew the demand. But just as importantly, an amendment to the Land Tax Act is in progress. Those land tax lawyers had the satisfaction of applying their skills in the service of the public good. No Victorian tenant will again be subject to such absurd and unjust law.

And of course, pro bono service is not possible for everyone. But all aspects of the legal life can include public service. Legal academics play a crucial role in forming young lawyers. You can plant and nurture the public service ethic. You can ensure students understand the importance of both the service of individual clients – and the broader public good which comes from effective law and policy. For politicians, judges and court administrators, the ideal of public service is deeply embedded in your role. I’ve got no doubt that it is a strong driver in accepting the call to serve in parliament and the courts. And I’m sure it shapes the way you work every day.

These stories – and others I’m sure you can think of – are example of lawyers using their professional skills in public service. But despite this, lawyers aren’t always held in high esteem. The abundance of lawyer jokes testifies to the low view that many have of us. I’m sure you’ve heard many of these jokes. One of my favourites – “Scientists are now using lawyers instead of rats in their experiments. Apparently there are some things that a rat just won’t do”. Even two millennia ago we can detect a somewhat critical tone in our gospel reading towards one expert in the Jewish law.

In the episode, Luke presents the lawyer as coming to ‘test’ Jesus. At first there is a seemingly straightforward question (v25) ‘What must I do to inherit eternal life?’ Jesus’ response also seems straightforward. He asks the lawyer to summarise the Law on which his expertise rests. The lawyer replies with two commandments from the Decalogue: ‘love God’ & ‘love neighbour’.

Jesus commends his answer. Yet the commendation is not enough for the lawyer. As we are want to do, he picks apart the meaning of Jesus’ response. Verse 29 says - ‘But wanting to justify himself [the lawyer] asked Jesus, ‘And who is my neighbour?’

Defining and dissecting the law was an obsession for these experts. The law’s meaning and purpose was often found in increasingly ‘precise’ exposition. Now Jesus was not averse to employing details of the law in debate. He often used his own exegesis in rebuttals to opponents. But here he responds to the lawyer by lifting his sights from the technical details to the ideal of the Law.

The famous story of the Good Samaritan that follows moves the debate from one of formal, black-letter law to the law’s very reason and purpose. Jesus takes the debate beyond technical definitions to an aspiration that is both an ideal and an everyday, practical imperative. The answer to the lawyer’s question, ‘who is my neighbour?’ is both simple and profound. The story shows it is…everyone.

In the story Jesus takes a despised class of person – a Samaritan – to highlight the true intent of the commandment of loving neighbour. Jesus contrasts the Samaritan’s behaviour with that of two people who were esteemed and highly-regarded, at the top of the social ladder. They rationalise their evasion of the commandment to love one’s neighbour. It turns out to be the Samaritan who shows care and mercy to the injured pilgrim, who is a Jew. The Samaritan understands the purpose of the law better than its priests. His actions extend the scope of neighbour beyond religious, cultural and social barriers. In other words, the Samaritan shows that a neighbour is potentially anyone.

Jesus’ reply to the lawyer’s definitional question about who is his neighbour gives the lawyer no excuse for further technical debate. Rather it leaves a personal challenge. Look at how Jesus closes the encounter.

36 “Which of these three do you think was a neighbour to the man who fell into the hands of robbers?” 37 The expert in the law replied, “The one who had mercy on him.” Jesus told him, “Go and do likewise.” 

Jesus understood that both the Law and the ideals underpinning it matter. We need higher ideals to give flesh to the bones of the Law. For those of us in the law, public service is one of those essential ideals. Like the lawyer in the story we sometimes need a prod to lift our vision from the letter of the law to its spirit and ideal. 

After Tracy’s case was over, she praised her lawyers for – in her words, their “kindness, understanding, patience and tenacity…” These are qualities I see in so many of the lawyers who work with PILCH, and who I’ve known during my years in the law. These qualities are a response to the circumstances of each individual client. But I believe they are also qualities that are sustained by the power of that important idea – law in the service of the public. Tracy also said that her lawyers “helped to restore a little faith in the legal system.” I suspect that it worked both ways – that for those lawyers, helping Tracy also reminded them of the public service vision of their vocation.

Today is an opportunity to renew this vision. I encourage us all to ground our work in the law as public service. Let this vision guide you in the year ahead as you take up your different roles in the justice system – as advocate, teacher, legislator, administrator or judge.

Thank you.

* Special thanks and acknowledgement to my husband, Rev. Angus McLeay, who provided the exegesis of Luke 10: 25 – 37, the Good Samaritan story.