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Equipping students for moral argument

Frank Brennan |  30 September 2013

Professor Lyman Johnson's paper 'Corporate Law professors as Gatekeepers', which I am told provides the theme for this conference, concludes with the observation: 'The simple point for corporate law professors in law schools, then, is this: We have a responsibility to help our students, who are training to be business lawyers, understand what the law does (and does not) really say about corporate purpose and what new scholarly work has to say about human motivation that challenges the simplistic self-interest view of neo-classical economics, and we should identify for them the host of factors shaping current thinking about these key subjects. Only then can they be best positioned to have both a broad understanding of the corporation's legal and social role, and to provide genuinely sound counsel to future clients.' If corporate law professors have a role in explaining human motivation beyond self-interest and in developing a broad understanding of the corporation's social role, that presumably is because all law teachers have a role in developing a broad understanding, or at least discussion, of the social role of the State, community groups and individuals.

Earlier Johnson quoted a paper by Professor Tom Ulen, entitled 'The Impending Train Wreck in Current Legal Education: How we might teach law as a scientific study of social governance'. Ulen insisted on the need 'to teach empirical methods including the role of interviews and surveys, how to design and conduct experiments, what constitutes a regressive analysis and how to read results.' The Dean of the University of St Thomas published his own paper from that same conference on legal education entitled: 'Maybe we should fly instead: three more train wrecks'.

Thomas Mengler, the Dean of St Thomas, identified three other train wrecks for legal educators. The first wreck he saw coming was treating a law school as a graduate school only. He asked how we can opt to make legal scholarship more useful for the legal profession and for legal practice. He wrote: 'I have difficulty understanding how our students are better off with a permanent faculty comprised predominantly of professors who have never worked as licensed attorneys.' He wanted to see faculty who had got their hands dirty.

His second train wreck is the one which captures my attention: 'Professional schools without professionalism'. He quotes the 2007 Carnegie Foundation Study 'Educating lawyers: Preparing for the Profession of Law': 'Much of law school's pedagogical activity presumes that issues of professionalism are somehow, somewhere being handled'. Yet the study notes that 'law schools shape the minds and hearts of their graduates in enduring ways'. The Carnegie study found that it was a 'surprisingly prevalent' perspective amongst faculty that 'it is indoctrination even to ask students to articulate their own normative positions'. 'Contrary to usual thought in the legal academy, law school education can and should help students discern their own moral compasses and professional ideals'. He wanted to see faculty who were at home with moral argument adept at helping others set their moral compass personally and professionally.

The third train wreck: one size fits all — pricing ourselves out of the market — we need 'enough flexibility to encourage the development of different models of legal education than the research-intensive model'.

How then to assist our students articulate their normative positions in a pluralistic democratic society in which social views are always changing, in which our politics are in flux, and in which moral judgments are being made against a backdrop of varying world views? Let me offer a few personal reflections from battles of the past — Aboriginal land rights — and battles of the present — asylum and refugee policy.

Back in the 1980s, big business was a strong opponent of Aboriginal land rights here in Australia. You will recall the mining industry's strong campaign against Brian Burke's proposals in WA and Bob Hawke's suggestion of national land rights. It was thought to be bad news for business. Business had minimal contact with Aboriginal leaders and their supporters. I daresay most of the in-house lawyers for mining companies shared and helped shape the view of their corporate masters.

The ground changed when the law changed with the High Court's decision in Mabo in 1992. One business leader Hugh Morgan from Western Mining decided to play hardball even impugning the integrity of the High Court, fighting the Keating government which was proposing to legislate certainty for Aboriginal landowners and miners. For some years thereafter, commentators Hugh Morgan and Ray Evans agitated about what they perceived as the Catholic thinking behind the High Court's Mabo decision. The suggestion was that the majority of judges who had been educated at Catholic schools must have allowed their Catholic perspective or values to influence their decision because it was inconceivable to these good Protestant gentlemen how else the court could have reached such a decision. They were particularly concerned that the lead judgments were written by Justice Brennan 'regarded as a conservative Catholic' and by Justice Deane, 'a Catholic of some standing'. Their anxiety was heightened by my relationship to Justice Brennan. Hugh Morgan offered public advice that I should have been particularly conscious of my father's standing, 'and sensitive to the implications of remarks which could quite incorrectly, give rise to suggestions of influence'. At the commencement of the Mabo proceedings back in March 1988, my father made a statement from the bench:

I have informed counsel appearing in this case that my son Fr Frank Brennan SJ is an adviser to the Australian Catholic bishops on matters relating to the land rights of Aboriginal and Islander peoples and that he is actively engaged in a ministry to these peoples. As this matter raises for consideration the question whether Islander people enjoy traditional rights with respect to land, not being rights arising under a statute, it is appropriate that the information I have given counsel should appear on the public record.

Counsel offered no comment and neither did the likes of Evans and Morgan until four years later when the litigation was well complete. I regarded my father's statement as an excess of judicial scrupulosity. Morgan was convinced that 'in Mabo, and all that followed from it, we are engaged in a struggle for the political and territorial future of Australia'. Evans discerned a 'Gnostic heresy which seized the collective minds of the High Court'. By 1999, Evans was publicly lamenting that 'Justice Brennan not only sat on the case but wrote the lead judgment, despite the fact that, in Australia, his son was, and has been for a decade, one of the most active and influential advocates for the revolutionary policies which were embodied in the Mabo judgment.'

After Mabo, the new CEO of CRA (Rio Tinto) Leon Davis decided to break from the pack and to take a different approach. I had been given a fair drubbing over the years by some of the mining executives, especially in Western Australia where they liked to label me one of the wise men from the east — not a compliment when delivered in front of a Perth audience. In 1995, I was living briefly in the Philippines and I was contacted by CRA asking that I deliver the after-dinner address to their senior executives at their annual retreat at Sanctuary Cove. I thought this was not a good idea. It could spoil everyone's dinner. But I was assured that the new CEO wanted to be seen to be making a difference. By the time I arrived for the dinner, The Australian's Bill Leak had published a wonderful cartoon of an Aboriginal warrior at sunset standing on one leg with his spear and leaning on Davis saying, 'Bugger me, next it will be Johnny Howard.' I was asked to present the framed original of the cartoon to Davis at the end of my address. The audience did not know what the gift wrapped package was. I invited Leon to come forward and leaned on his shoulder. There were shocked looks in the audience as I presented the gift and said, 'Bugger me, next it could be Johnny Howard.' Davis thought it was the right thing to do — recognizing native title and moving his company to work with traditional owners. He could not guarantee a higher return to shareholders in the short term. But he thought there might be some commercial advantage in the longer term in stealing the march on their competitors in coming to deal efficiently with the reality of native title. Whatever of the short or medium term business advantages, he thought this was simply the right thing to do. It was the appropriate moral response of business.

The morality of business demands that we have concern not just for the short term returns for shareholders. We can also consider medium and long term returns with attention to the triple bottom line — economic, social and environmental.

It makes sense for business to have an eye to the protection of human rights at home and abroad. Human rights are within the moral purview of business. I well recall one of the first submissions we received when I chaired the National Human Right Consultation for the Rudd Government in 2009. Though there were some raised eyebrows, I welcomed the submission our committee received from Telstra, one of Australia's largest companies, arguing for enhanced protection of human rights. Telstra submitted to us:

Large and small companies, whether shareholder-based, family-centred, multinationals, NGOs or organisations established for charitable purposes, occupy a core part of most democratic economies, including Australia. In Australia and elsewhere, such organisations are often involved (sometimes publicly, sometimes privately) in: standing up for the rights of the oppressed; correcting injustices; trumpeting opposition to government oppression; and exposing corruption. Companies reflect the combined interests of individuals; and, for the most part, individuals support the protection of each others' rights. Not only do corporations therefore play an integral role in protecting and promoting human rights values, there is nothing particularly remarkable about corporations (including an organisation like Telstra) contributing to discussion about a human rights framework.

I completed my initial legal training at the University of Queensland when Sir Joh Bjelke-Petersen was Premier. When I was a first year law student in 1971, Petersen declared a state of emergency at the time of the rugby tour by the all-white Springbok team. I knew this was wrong. In 1977 Petersen had declared that the day of the political street march was over. The right of public protest was not to interfere with the right of ordinary Queenslanders to drive and shop at leisure. I knew this was wrong too. My thesis focused on issues to do with human rights, law and order. It became my first book, Too Much Order with Too Little Law. At the time I was also completing my philosophy and theology studies in preparation for ordination as a Jesuit priest. I became convinced that law and morality are related, or should be in any robust pluralistic democratic society. Back in 1971 when Sir Joh Bjelke Petersen declared the state of emergency under provisions of the Transport Act for the Springbok Rugby Tour, most of my law lecturers stood silent, while Sir Zelman Cowen as Vice Chancellor wrestled publicly with the morality of what was being done in the name of the law. Years later, Gough Whitlam was wondering aloud with me about the great number of social reformers who came out of Queensland in the early 1970's. I told him the answer was simple. We all had something to react to. We developed strong ideas about what was right and wrong in the public square. It was not enough just to say, 'This is the law of the land and you will obey it.'

Earlier this year, I had the pleasure of attending to wonderful swearings-in of two old friends. First, James Allsop was sworn in as Chief Justice of the Federal Court of Australia. Back in 1981 I served briefly as associate to Justice William Deane on the Federal Court at the same time that James was associate to Sir Nigel Bowen, the first Chief Justice of the Federal Court. Members of the legal profession attested James's integrity and keen moral sense as well his profound knowledge of the law. Phillip Boulten SC, President of the New South Wales Bar, quoted Allsop's recent judgment in Karim in relation to the mandatory sentencing of a hapless crew member on an asylum seeking boat. Allsop J had written:

Here, in relation to these offences, an illiterate and indigent deckhand pondering his or her incarceration for five years for a first offence could legitimately conclude that, at a human level, he or she had been treated arbitrarily or grossly disproportionately or cruelly ... Once again, existing authority precludes such notions informing reasoning to a relevant legal consequence.

While briefly acknowledging the many splendid things said about him, Allsop dedicated his remarks to the role of the courts and the expectation that judges work hard and diligently. He noted that the Federal Court is at the cutting edge of justice according to law, in relation to contested issues such as asylum and native title. Quoting my old judge, Justice Deane, he noted that even in the more routine jurisdiction of bankruptcy, the diligent judge needed to have an eye to the human story of the law. Deane J had written in Kleinwort Benson v Crowl, 'with his customary insight into human affairs and lucid prose':

In the bankruptcy lists of this country, creditors generally seek the bankruptcy of honest, albeit unbusinesslike or naive, people to whom bankruptcy represents a pronouncement of failure and humiliation attended by the fear of unknown consequences and punishment. The lives of many such people are affected by the efficiency, competence, civility and justness of the work of the Federal Magistrates' Court and the Federal Court of Australia. It is a heavy responsibility.

Allsop went on to speak about the Federal Court's role in determining native title cases:

It is thus at this point that I recognise the custody of this country since ancient times by the first peoples of the nation. The work of the court under the Native Title Act places the court at the head of one aspect of the reconciliation of our history as one nation, Indigenous and non-Indigenous, and of the reconciliation of the conflict and injustice of the past and present. The resolution and recognition according to law of the long-existing rights of the indigenous peoples of this country is not only important to them as litigants but also for the nation as a whole.

It is part — only one part — that must be said of the creation of a new national legacy built on justice and respect within the framework of the laws of Australia and not upon dispossession. I do not suggest that this has been achieved; far from it. But the court has an important role to play in the just application of the laws of the Commonwealth in this ongoing process as part of the attempt by the people of this nation to create and maintain the bonds of a just society. Such a society is one in which the court is looked at by all Australians as their court, where they will receive justice that is conformable with their conceptions. The court's responsibility is therefore a heavy one in that national task.

Justice conformable with the community's conceptions. This provides a challenge and a broader remit for the legal academy than just the teaching of law. Do we not have our role in shaping the community's conceptions of justice as well as shaping laws conformable with justice so that we might all be the better for administering justice according to law?

Next day Patrick Keane, Allsop's predecessor on the Federal Court, was sworn in as the newest Justice of the High Court of Australia. Pat and I were mates at Queensland University. We were admitted to the bar on the same day — he just ahead of me because of his understandably superior academic results.

Mr J. Catanzariti, President of the Law Council of Australia, complimented Keane on his universal perspective taken on all matters in litigation. He praised Keane for his ability to include the moral and human dimensions of any question while always respecting the rule of law. He referred to the contentious litigation about alcohol availability on remote Aboriginal communities. When on the Queensland Court of Appeal, Justice Keane had observed, 'The legislature is not subject to the constraints which are inherent in the judicial process. The legislature is able to vindicate the interests of the women and children of Aurukun and Kowanyama who were not represented in this Court. The Court should recognise that its ability responsibly to set aside the balance struck by the legislature between competing human rights is limited by the very nature of the judicial process.' From the bar table, there was also reference to Keane's 2010 speech at Monash University when he described the Book of Deuteronomy as 'an example of a shared national morality that inspires its people to be generous, even to strangers. The idea is that we should treat everyone who comes within our borders, including complete strangers afflicted by misfortune, not just with respect and dignity, but with generosity, because we too have - at some time - been ourselves saved, without any particular merit on our part, from the misfortunes which are part of the human condition.''

At his swearing in, Justice Keane took some comfort that the Australian judiciary were not a social elite as in some other countries, being drawn from the egalitarian democracy shaped by those Australians of the Depression and War eras who provided selflessly and generously for the education of their children. He invoked Martin Luther King who said, 'The arc of the moral universe is long, but it bends toward justice.' With a touch of nationalistic pride, Keane opined that it bends more sharply in that direction here in this part of the southern hemisphere because of the egalitarianism of our forebears.

It's more than 30 years since I appeared in court. But as a priest in the public square agitating issues of social justice I have found my legal education to be of enormous benefit wrestling with the relationship between law and political morality, law and social justice. I know that many of my legal contemporaries are basically legal positivists who think that most of the moral issues regarding the law are to be determined by elected politicians rather than by unelected judges. I have long been of the view that no lawmaker can escape acute moral questions when determining how to administer justice according to law and how to shape the law so that it maintains resonance with community values. I know there is so much more to law than what goes on in the courts.

For all lawyers, there is no doubt about our duty to our client, our duty to the court. What about our duty to the law? Our duty to society? Our duty to the common good? Do lawyers individually and collectively have an ethical duty to contribute to the development of laws which recognise human rights, uphold the common good, and enhance the community's commitment to justice for all? I think they do.

The great jurisprudential thinker Ronald Dworkin died in February. In his penultimate book, Justice for Hedgehogs, he wrote: 'The justice we have imagined begins in what seems an unchallengeable proposition: that government must treat those under its dominion with equal concern and respect. That justice does not threaten — it expands — our liberty. It does not trade freedom for equality or the other way around. It does not cripple enterprise for the sake of cheats. It favours neither big nor small government but only just government. It is drawn from dignity and aims at dignity.'

Especially on issues at the cutting edge of law and justice, it is not only politicians who carry a responsibility to shape law consistent with moral principles. For example, Australian law is in better repair given the majority judgment of the High Court in Mabo. And yet, I have the highest regard for the intellectual integrity of Justice Dawson, the sole dissentient, who wrote in Mabo:

As I have said, any traditional land rights which the plaintiffs may have had were extinguished upon the assumption of sovereignty by the Crown over the Murray Islands and any fiduciary or trust obligation that might otherwise have existed in relation to such rights is precluded by the terms of the relevant legislation. Accordingly, if traditional land rights (or at least rights akin to them) are to be afforded to the inhabitants of the Murray Islands, the responsibility, both legal and moral, lies with the legislature and not with the courts.

When native title came on for debate in the Australian parliament, as our elected politicians wrestled with how to make Mabo workable for all land users, including miners and developers, Senator Brian Harradine who held the balance of power in the Senate said, 'This parliament comes second place because it was the High Court that showed us the way. It was the Mabo decision that showed us the way. That really is to the shame of the parliament ... The parliament had to be almost dragged screaming to face reality because of the High Court decision. To me, that is shameful. To have acted sooner would have been the appropriate thing to do.'

The moral conscience of law makers, whether politicians or judges, has a place. It was the High Court which helped the nation face what Justices Deane and Gaudron described as 'the conflagration of oppression and conflict which was…to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame'. Some citizens trained in the law are able to assist with the public discussion about contested issues while the law takes shape in the courts and in our parliaments. I have been very privileged to have the time and opportunity to do so. I would hope that many of your graduates will be equipped to do likewise.

Sometimes our conscientious judges think they are bound by statutes which do not permit of humane interpretation. All Australian lawyers are now familiar with the bold assertion by Justice Hayne in the 4-3 decision of the High Court upholding mandatory detention of asylum seekers, if need be for life. In Al Kateb, Hayne J said,

It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non-citizen came to or remained in this country without permission.

He went on to say:

To adopt and adapt what Judge Hand said [in United States v Shaughnessy]: 'Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.'

Australian jurisprudence in this area of the law is still an unprincipled mess. Some of us in the community have a role to play in calling all lawmakers whether elected politicians or unelected judges to greater coherence. Justice Allsop told the 36th Australian Legal Convention in Perth last year:

Australia must ensure that its law has both clarity and a resonance with international standards and practice … If Australian law is unclear or opaque, it will be less likely that it will act as a reference point for courts of other countries, thereby diminishing the standing of the jurisprudence of this country.

Judi Moylan who was a fearless Member of the House of Representatives on the asylum issue remained consistent in opposing the policies of the Howard and Gillard governments. Opposing amendments introduced by the Gillard Government and supported by the Abbott Opposition on 27 November 2012, she said:

What really concerns me is that this legislation places these people out of reach of the Australian legal system and casts doubts as to whether any review process will ever be available to them. Our democracy is underpinned by the rule of law, which requires, as a minimum, access to judicial review of administrative action, the right to a fair trial, the right to private communication with a lawyer and access to the courts. This bill is a crack in each of those foundation stones of our democracy. That is why people out there ought to be concerned about the passage of such legislation in unseemly haste in this place. We should ask the question: who or what will protect these people from processing errors? Who or what?

All Australians trained in the law are called to be ethical in the public square in this pluralist, democratic society, within the federation, with a constitutional separation of powers, but without a charter of rights, having opinions on hotly contested issues impinging on the rights and dignity of unpopular, powerless minorities. Dworkin's last words in his penultimate book sum it up: 'Remember, too, that the stakes are more than mortal. Without dignity our lives are only blinks of duration. But if we manage to lead a good life well, we create something more. We are a subscript of our mortality. We make our tiny lives diamonds in the cosmic sands.' That's why I enjoy being a lawyer and a priest agitating for the human rights of all, even in the very secular Australian domain.

Knowing that a future Abbott government would be very punitive in its treatment of boatpeople and suspecting that Labor would try to match its opponents in this last election, I attempted to outline a proposal for the medium term aimed at stopping the boats during the next Australian Parliament when I spoke at the National Asylum Summit on 27 June 2013, the morning after Kevin Rudd was re-elected leader of the Labor Party and Prime Minister. I tried to set out the ethical and legal preconditions for Australia being able to turn back the boats. Many refugee advocates were upset with me for conceding that any such theoretical discussion could occur. I knew that we were headed for a dreadful election campaign at the end of which Tony Abbott would be elected with the simplistic promise that he would stop the boats. The only unresolved issue was how far the Labor Party would go in chasing him to the bottom of the precipice, thereby rendering itself morally neutered in the new Parliament.

Except for Sri Lankans, most of those arriving by boat come not directly from their country of persecution but via various countries with Indonesia being their penultimate stop. There is an understandable bipartisan concern in the Australian parliament about the blowout of boat arrivals to 3,300 per month. An arrival rate of that sort (40,000 pa) puts at risk the whole offshore humanitarian program and distorts the migration and family reunion program. Thus the need to ensure that those risking the perilous sea voyage are in direct flight from persecution being unable to avail themselves adequate protection or processing en route in Indonesia. If they were able to avail themselves such services in Indonesia, the Australian government would be entitled to set up disincentives and to return them safely to Indonesia. If that number were in direct flight from persecution, the Australian government would be justified in setting up measures providing only temporary protection and denying family reunion other than on terms enjoyed by other migrants. But I don't think that would be necessary. It should be a matter not of taking the sugar off the table but of trying to put the sugar out of reach except to those in direct flight from persecution.

In June, I was responding to Jeff Crisp, the Head of the Policy Division and Evaluation Service of UNHCR in Geneva. With a refreshingly international and humanitarian lens, Jeff raised three questions:

Why has the enforcement and deterrence agenda become so dominant?
What have been the consequences of that agenda for refugee protection?
Can alternative (and better) approaches be found?

In my response to these questions, I said I wanted to apply 'a national Australian political lens as we all stare down the barrel of a new government likely to be elected in two months time with a commitment and a mandate to stop the boats which are arriving in numbers we Australians have not known before.'

I have become well used to separating out moral outrage from policy discussion and calibration on this issue. It was after my first visit to the Woomera Detention Centre in 2002 when I went to Canberra to meet with Minister Philip Ruddock, one of my government contacts warned me that they were sick of the moral outrage from the churches and other advocacy groups. I was urged to keep cool. I kept cool until Easter that year. I then wrote to the minister:

My three hours in the detention centre on the evening of Good Friday convinced me that it was time to put the message to you very plainly despite its public unpopularity and despite your government's immunity to moral outrage: 'Minister, this is no place for kids.' When children end up in the sterile zone against the razor wire with tear gas and batons around them in Australia, it is time for all parties including the Commonwealth government to stop blaming others and to effect policy changes so that it can never happen again.

In the end, the government did apologise to the mother of the seven year old boy whose bruises I had seen after he had been hit with a baton and tear gas.

When the rights of a despised minority are being trampled by government implementing a popular policy driven by fear, our law graduates whatever their paid professional roles should be well placed to contribute to social and political change given their commitment and insights into justice according to law.

Eleven years after John Howard and Philip Ruddock had instituted the post-Tampa measures, Kevin Rudd as newly re-elected prime minister announced on Friday afternoon, 19 July 2013, that he had spent much of the week with his Immigration Minister Tony Burke in discussions with the PNG government. He announced his PNG Solution whereby all boat people headed for Australia would be moved to PNG for processing and ultimate resettlement with the guarantee that they would never reach Australia.

I had been in Myanmar out of reach all that week. I landed in Sydney on the Saturday morning. My first telephone conversation was with Paris Aristotle, the refugee advocate who had been a member of the Houston Expert Panel. Paris said to me, 'Frank, you are never to leave the country again without permission.' I phoned my online publisher at Eureka Street and disturbed his weekend telling him that I needed to publish my assessment of the PNG solution by 3pm. I settled in at the Qantas Club, wrote a draft, sent it to my publisher, and asked him to hold it until I landed in Brisbane having time in flight to consider what I had written. I landed, phoned and cleared the article for publication. Two hours later I entered the prime ministerial study and was able to say that I had already published my view on the new policy. Kevin and I, being friends, agreed that we had our distinctive tasks and duties to perform. The piece was firm but restrained, sparing the moral outrage.

I then followed up with a public lecture during the election campaign in which I outlined how the boats might be stopped ethically and legally in the medium term. In the medium term, I think the only way to stop the boats ethically is to negotiate a regional agreement with Indonesia and Malaysia. I admit that this would take a considerable period of time, a good cheque book, and a strong commitment to detailed backroom diplomatic work avoiding the megaphone diplomacy which has marked this issue of late. Many of the law professors expert in the field of refugee law find such suggestions ethically unacceptable, legally untenable or unworkable.

They find my next suggestion even more problematic. In the short term, the boats can only be stopped with some sort of 'shock and awe' campaign. Could such a campaign ever be ethically justified? I think there are some useful parallels in ethical discourse about the use of nuclear weapons and nuclear deterrence, and about the justification, if any, for the use of torture. My quandary for the legal academy is: do we have anything to contribute to this discussion about short term attempts to stop the boats? Or is our legal and ethical realm so elevated as to be a world of discourse foreign to that being pursued by all major political parties and their advisers in Australia at the moment? Is our collective academic fate the impotence of the pure?

The major political parties in Australia are now strongly committed to stopping the boats. During the recent election campaign, Messrs Rudd and Abbott were keen to demonstrate that each was more decisive, determined, and punitive than the other. They were ad idem on the end to be achieved; the only thing they wouldn't do was embrace the other's means for achieving the end of stopping the boats. In the first of the election debates, Tony Abbott said, 'We will salvage what we can from the arrangements that Mr Rudd has made with PNG' and Kevin Rudd contesting Abbott's assertion that he would turn back the boats because it is rarely safe to do so said, 'If we didn't think that problem existed we'd have a different approach'.

During the election campaign, I set out six recommendations for the way forward trying to give the 'shock and awe' response greater ethical coherence following upon some parliamentary scrutiny. (1) Whoever is elected Prime Minister on 7 September 2013 should introduce a bill to Parliament detailing the measures aimed at stopping the boats, thereby putting beyond legal doubt the shock and awe measures implemented on the eve of the election campaign and locking in the major political parties so that petty party point scoring might cease. The debate on the bill will allow both sides of the Chamber to purge themselves of the hypocrisy that has accompanied Labor's unctuous condemnation of John Howard's Pacific Solution and the Coalition's unctuous condemnation of Julia Gillard's Malaysia Solution. The bill would undoubtedly win the support of all major political parties. It should list a cocktail of deterrent measures including all those agitated by both major political parties. The new government should then commit to: (2) an increase in the humanitarian quota; (3) a negotiated agreement with Indonesia and Malaysia aimed at upstream improvement of processing and protection; (4) an ethical reassessment of the plight of those who came after 19 July 2013 without notice of the new shock and awe policy bearing in mind the admission by Minister Tony Burke on 22 August 2013: 'First week after the announcement, the figures remained very high, but let's not forget those figures include people who are already at sea'; (5) a pledge to care for unaccompanied minors who arrive in Australia's territorial waters until they can be safely resettled or safely returned to their family or to the guardians in transit from whom they were separated; and (6) safeguards, including a transparent complaints mechanism, in PNG and Nauru consistent with the safeguards recommended by the Houston Panel for both Pacific processing countries and for Malaysia under the Malaysia Solution.

I would hope that our law schools will be accessible venues for those wanting to debate these issues in future, just as they were the places to discuss Aboriginal land rights and the limits of self-determination when I was an undergraduate. Law, politics, and public morality all have their place. Law teachers need to encourage the cross-fertilisation of ideas so that justice according to law remains a laudable objective for all persons within the jurisdiction. Its about much more than individual rights and non-discrimination. We must always be considering the common good, the public interest, group rights as well as individual rights, and the legitimate aspirations of those who are so 'other' or so vulnerable as not to count in the political calculus or judicial reasoning. That's why we need a robust legal academy. Thanks for all you are doing to educate the next generation of judges, members of parliament, and citizens who will both think outside the square of present orthodoxy in pursuit of the universalism which alone guarantees protection of those both inside and outside the square, and have the prudence to know when the square needs to be redrawn.


Frank Brennan headshotFr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He presented the above lecture 'Law teachers as gatekeepers of law, public morality and human rights: Equipping our students for moral argument in a pluralistic legal environment' at the Australian Law Teachers Association Annual Conference 2013.

 



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