Supreme Court of Tasmania

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Address for Opening of the Law Year (Tasmania)

Fr Frank Brennan SJ AO
St David’s Cathedral Hobart
2 February 2007

Tomorrow marks the 40th anniversary of the last state authorised execution in Australia. We are all the better as a society for having abolished capital punishment. I remember well that fateful 3 February 1967. I was twelve years old, having just been promoted to the large dining room at my country boarding school. Breakfast started at 7.45am. The din of 300 boys at table was always deafening. For the first and only time in my five years at the school, a handful of senior boys called for a minute’s silence at 8am to mark the hanging of Ronald Ryan in Melbourne Jail. As Ryan dropped, you could hear a pin drop in faraway Toowoomba, Queensland. The recollection still brings goose bumps. This was wrong. It should never happen again. How could a nation do this? All Australian jurisdictions then abolished the death penalty. My adolescent moral sensibilities found resonance in public debate, law reform and policy change. Values and principles mattered.

Ten years later, I had studied law and politics in Brisbane. The Queensland Premier Joh Bjelke-Petersen announced, “The day of the political street march is over.” He told student activists not to bother applying to the police for a permit; they would not get one. For two years, police then exercised their discretion wrongly in accordance with the premier’s wishes. 2,000 people who went to the barricades were arrested. Ultimately there was a change of government and the law was amended, guaranteeing the right of public assembly. Public political protest bore results. Arguments about civil liberties affected the policies of at least one of the major political parties. Moral wrongs could be put right. The actions and opinions of young people mattered. Even in the wake of Sir Joh’s populist politics, values and principles mattered.

We lawyers find deep consolation in those words of Isaiah chosen by Luke to mark the commencement of Jesus’ public preaching in his home town:

The Spirit of the Lord is on me, because he has anointed me to preach good news to the poor. He has sent me to proclaim freedom for the prisoners and recovery of sight for the blind, to release the oppressed, to proclaim the year of the Lord's favour. (Lk 4:18)

In hindsight, we give all but universal approval to legal changes such as the abolition of the death penalty and the recognition of the right to assemble peaceably. But we often overlook how outspoken and unpopular a minority of citizens had to be in order to enliven the pubic conscience, how courageous individuals had to be so that they might be true to their conscience regardless of the prevailing orthodoxy of the establishment or public opinion of the day.

Those of us who are Christian are happy enough, with our fellow humanists and adherents of other faiths, to give notional assent to the fine scriptural sentiments about justice, pleased that

with righteousness he will judge the needy, with justice he will give decisions for the poor of the earth (Is 11:4)

But what is asked of us as lawyers and as citizens whose legal training imposes added community obligations? Once we move beyond the platitudes of justice and peace, how are we to act in society, in a fallen world while maintaining the religious hope that

The wolf will live with the lamb,
the leopard will lie down with the goat,
the calf and the lion and the yearling together;
and a little child will lead them.

The infant will play near the hole of the cobra,
and the young child put his hand into the viper's nest.(Is 11:6,8)

At the 1988 Yale Conference on Australian Literature the late Professor Manning Clark lamented:[1]

A turbulent emptiness has seized the inhabitants of the ancient continent. No one has anything to say. Like other European societies, Australians once had a faith and a morality. Then they had a morality without a faith – the decades of the creedless puritans. Now most of the legal restraints of the old morality have been taken off the statute book. Everything is up for examination.

Jesus was on safe ground with the home crowd for as long as he espoused the lofty sentiments of Isaiah. He won the approval of all, and they were astonished by the gracious words that came from his lips.(Lk4:22) But things took a sudden turn for the worse once he started grounding those sentiments, reminding the locals about their history and their situation. Every optimistic preacher speaks in the hope that it needn’t necessarily be so: In truth, I tell you, no prophet is ever accepted in his own country.(Lk 4:24) Once the message is grounded in our local situation, we too become enraged, springing to our feet and hustling the preacher out of the town, or at least hoping he is on the next flight back to the mainland. And they took him to the brow of the hill their town was built on, intending to throw him off the cliff.(Lk 4:29)

We come to St David’s Cathedral today to be consoled and challenged, to be realistically downhearted about the state of our world and polis, and to be spiritually uplifted for another year of service and commitment to doing justice according to law, without fear or favour, cognisant of the duties imposed on our respective branch of the profession whether we be judge, barrister or solicitor, prosecutor or defence counsel.

The pragmatic, consequentialist ethic in contemporary Australia has long wreaked havoc on outsiders not meriting our respect, but now we risk it’s turning on us. Just think of our tolerance of long term immigration detention without court order or supervision, or even without independent bureaucratic oversight, until Cornelia Rau (one of us) ended up in the bureaucratic web of detention for the good of national security and border protection.

Here in Australia we now jump too quickly from talk of Australian values (which at their best are usually universal humane values wrapped in the flag) to an assessment of consequences. Our politicians are now fond of telling us that those of us who are unelected may have a role in discussing values but then it is up to the elected politicians simply to assess the consequences of a law or policy, presuming that it is the consequences alone that will determine the rightness of wrongness of the action. Over the summer break, we have been entertained to a spirited discussion about the place of religion in law and politics with the protagonists Tony Abbott and Kevin Rudd. Last weekend Tony Abbott told the young people in his party:

Preferring that troops not be sent overseas to fight, that environmental benefits did not have to be weighed against economic cost or that unauthorised arrivals might not need to be detained is hardly a uniquely Christian characteristic. It's human nature to avoid decisions of this type. Christians are called to seek the good in people but not to ignore human weakness or assume evil has ceased to exist. That's why there is no single, authoritative Christian position on the Iraq war, climate change, or border protection. On these issues, what mostly matters is what's likely to work out for the best in an imperfect world.

No, on an issue like war it is not mostly a matter of what’s likely to work out for the best in an imperfect world. We are required to judge the morality of war not just by its consequences. There are conditions to be fulfilled for a just war, principles to be applied – conditions which have never been fulfilled in the case of the Iraq war, and principles which have not been articulated or distinguished by government. This is not a war which is becoming wrong because of its consequences. It is a war which was wrong from the beginning, because the novel US doctrine of pre-emption is contrary to the longstanding principles of just war espoused by Christians, humanists and other religious persons over the centuries. While our government purported to join a coalition of the willing for the removal of weapons of mass destruction, we now know that the captain of the coalition was committed to regime change whether or not there were weapons of mass destruction. Paul Wolfowitz has since admitted, “The truth is that for reasons that have a lot to do with the U.S. government bureaucracy, we settled on the one issue that everyone could agree on which was weapons of mass destruction as the core reason.”

We cannot just jump from values to consequences. “What’s likely to turn out for the best in an imperfect world” is not simply what is best for the majority or what the electorate will wear, regardless of the cost to the minority or to the individual without government or majority support. We lawyers have an obligation to remind our fellow citizens, including our elected politicians, that there are principles which preclude some courses of action no matter what the political or utilitarian calculus. Our religious convictions help to inform our values. But it is not simply a matter of then choosing between outcomes on the basis of consequences. From our values, we derive certain principles which are to be applied regardless of the consequences of an action. Our social obligation as lawyers is to do the hard intellectual work involved in articulating principles derived from values, then reconciling conflicting principles and conflicting rights with reasoning which is transparent and public.

Even if the security of Australia were to be enhanced by detaining David Hicks in inhumane circumstances for five years without trail, that does not make his detention right. Lawyers who have strenuously opposed his long term detention without trial are not simply playing politics or making utilitarian calculations about the short term maximum personal satisfaction of the majority of citizens. They are standing up for a principle which is derived from our values – a principle which is to be respected if we are to maintain a democratic nation state under the rule of law. Persons should not be detained for years on end without charge and without trial. Persons should not be detained in circumstances which could provide decision makers with an incentive to convict so as to justify, excuse or rationalise long term detention. Persons should not be detained in circumstances likely to render them psychiatrically abused, with the pre-trial detention being designed to be more punishing than humane punishment for even the most egregious of crimes. These are principles to be espoused fearlessly by our government for the protection of all Australians whether they be you, me or David Hicks, and wherever they may be..

If we are to espouse unpopular principles to populist government bent on consequentialist policies, we must first be seen to be the most principled of professions. In our first reading from the prophet Isaiah we heard, “Uprightness will be the belt around his waist, and constancy the belt about his hips.”(Is 11:5)

The AWB affair has revealed the immoral and unacceptable behaviour of many of our senior, well paid executives. But there has been little attention paid by the media, or by us lawyers, to the Commissioner’s adverse observations about the senior, respected lawyers who were involved. I am not referring to those eminent persons who gave legal opinions which were carefully circumscribed in accordance with the tortuous, limited instructions they were given, having been asked to advise on the assumption that “payments were made pursuant to bona fide commercial arrangements”.

The solicitors for AWB played a critical role in facilitating AWB’s non-cooperation with the inquiry. Admittedly, even though AWB had stated in its annual report that it would co-operate fully with the inquiry, it was not legally obliged to cooperate with the inquiry. It decided on a PR strategy of claiming full cooperation while working with their lawyers on a strategy of non-cooperation. AWB’s lawyers had collated the key statements by witnesses more than a year before providing the inquiry with a series of statements which “were of no use to the Inquiry”. The Commissioner noted that “AWB’s lawyers were…in a position to provide useful statements had they wished to do so”. When the Commissioner expressed public dissatisfaction with this non-cooperation in January 2006, senior counsel for AWB submitted that the commissioner’s concerns were unreasonable and that he was conducting the inquiry unfairly. Senior counsel claimed that there had been insufficient time to draw up adequate witnesses’ statements and that there was “restricted availability of the documents”. The Commissioner had no option but to accept these reasons. It was only later once an unsuccessful attempt was made at legal professional privilege that it emerged that “AWB had collated much of the relevant material more than 18 months before the inquiry began, yet chose not to produce it to the Inquiry until compelled to do so, and then not in its assembled form”. The Commissioner found that the “reasons advanced by (senior counsel) for the absence of cooperation were not factually accurate”. Presumably senior counsel and/or his instructing solicitors knew this at the time the submissions of unreasonableness and unfairness were put.

The public is left with the perception that in a royal commission, lawyers (even senior counsel) have no duty other than the representation of their client’s perceived self interest even if such representation involves material misrepresentation of the facts and even if the lawyers know of and facilitate their clients’ dishonesty before the commission. In such a commission, do we as a profession have a duty to the commission and to the public? Or are we simply well paid clever people available to dishonest clients assisting them to hoodwink and misguide the commission and the public?

Let’s pray at the opening of this law year, that we, as a profession, may well serve our clients and our legal institutions, and that we, as legally trained citizens, might assist the nation to conduct itself according to principles informed by values consistent with our finest religious traditions. Enunciating principles and resolving the conflict of principles to our intellectual satisfaction and in accordance with conscience, we might ensure that before the law, there is neither Jew nor Greek, slave nor free, male nor female.(Gal 3:28) We Christians might then be sustained in the hope that all might one day be one in Christ Jesus.(Gal 3:28)

We pray that on us “will rest the spirit of Yahweh, the spirit of wisdom and insight, the spirit of counsel and power, the spirit of knowledge and fear of Yahweh”. (Is 11:2)

[1] M. Clark, Speaking out of Turn, Melbourne University Press, 1997, p. 143