Professor Frank Brennan SJ addresses the Queensland Law Society dinner, 21 February 2014, 30 years on from his book Too Much Order with Too Little Law.
Mr Ian Brown, President of the Queensland Law Society, Members of the Society, Chief Justice de Jersey, Justice Susan Kiefel, Senator the Hon George Brandis, the Hon Jarrod Bleijie, Your Honour Chief Judge Patsy Wolfe, Judge Tim Carmody, ladies and gentlemen:
I join with you in acknowledging the traditional owners of the land on which we meet. In doing so, I note that before Mabo such an acknowledgement was rare. But since then community attitudes have been informed by the thinking of our High Court which in developing and applying the common law found that Aboriginal Australians had title to land which pre-existed the assertion of sovereignty by the British Crown and which survived that assertion. That is the firmer legal and social foundation for our relating nowadays.
I congratulate you Mr Brown on your election as president of the Queensland Law Society. These are challenging days in Queensland for taking on this role. President Margaret McMurdo recently had cause to pay tribute to your predecessor Ms Annette Bradfield who had 'presciently raised members' concerns' about some amendments to the criminal law 'which, she argued, transferred judicial power to the executive government' and which were later found 'to be beyond Queensland's legislative power and invalid'. President McMurdo rightly expressed pride in your predecessor's independence.
I had cause to reflect on this independence recently when reading the news of Stephen Keim SC and the complications of his having been offered a government brief in a politically uncontroversial matter in an area of law in which he is known to be expert. Stephen and I first got to know each other when we started secondary school sharing a dormitory in Toowoomba almost a lifetime ago. I have therefore long had cause to watch his career as an independent counsel of the Queensland Bar. On withdrawal of the brief without coherent explanation, I contacted him with a reminiscence. Forty-two years ago there was a state of emergency declared in this city while an all white Springbok rugby team played against the Wallabies. I was a first year law student at the University of Queensland at the time. On 2 August 1971, the Vice President of the Queensland Bar published a letter in The Australian saying:
The contemporary discussion of law and order has been overlaid with other issues: apartheid and football (as to which there is little disagreement), politics and protest (as to which there will always be disagreement). The fact remains that law and order are essential to a civilised community…When legitimate protest degenerates into unlawful disruption, governments are invited to assume powers of doubtful legality, and to condone unlawful actions by police. When governments do not exercise their powers honestly and fairly and with statesmanship, they invite disruptive expressions of protest. In either case both the rulers and the ruled attack the concept of law and order. Is it not time for both to examine their consciences?
When attending the Bar common room for lunch that day, a senior silk told the Vice President that there was now no prospect of his ever being a judge. That Vice President happened to be my father. He did end up a judge — being appointed twice by the Fraser government and finally to the chief justiceship by the Keating government. There is a place for conscience and courage in the law, especially when the prevailing political orthodoxy of those who exercise legislative or executive power is contrary to one's deeply considered assessment of human rights and human dignity.
As Chief Justice, Sir Gerard Brennan when speaking at Bond University had cause to observe:
Montesquieu had pointed out that 'there is no liberty, if the power of judgment be not separated from the legislative and executive powers'. Hamilton, following Montesquieu, described an independent Judiciary as 'the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws'. In this country, the separation of judicial from legislative and executive power and the separation of the judges from political activity have been rigorously maintained by the High Court. The separation of the political powers from the judicial power and the repositories of those respective powers from one another guarantees not only the independence of the Judiciary but the appropriate responsibility for the exercise of those powers.
He went on to explain:
Responsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people. The people can bring influence to bear on the legislature and the executive to procure compliance with the popular will. But a clamour for a popular decision must fall on deaf judicial ears. The Judiciary are not politically accountable. The Courts cannot temper the true application of the law to satisfy popular sentiment. The Courts are bound to a correct application of the law, whether or not that leads to a popular decision in a particular case and whether or not the decision accords with executive policy.
The second last time there was a new Supreme Court building opened in this city was September 1981. The then Chief Justice Sir Charles Wanstall reflected:
[King] James regarded himself in authoritarian terms as the embodiment of the Divine Right to dictate, but his Chief Justice, Lord Edward Coke, boldly responded to this assertion in words that have become immortal: 'Sire, you are under God and the law.' And so commenced the struggle for the independence of the judges that was won in England in 1701, when the Act of Settlement finally established it. Today, the people of Queensland, the inheritors of that fundamental and priceless constitutional principle, will recognize in this simple ceremony its symbolic restatement as their enduring right.
Last time a new Supreme Court building was opened in this city, your present Chief Justice Paul De Jersey recalled these words of his predecessor on receiving the key to the court from the Attorney-General. The Chief Justice said, 'This symbolic act thereby emphasizes the independence of the judiciary from the other branches of State authority, the legislature and the executive.' This evening, both the Chief Justice and the Attorney-General honour you all by their presence.
Back in 1981, there had been controversy here in Queensland, as there has been recently, about the exercise of executive and judicial power. The then governor was not a lawyer, but a very savvy Navy Commodore, Sir James Ramsay. Opening what proved to be a very unsatisfactory court building, he very satisfactorily stated the relevant principle:
We, in this country today, can be grateful that our predecessors, the colonisers of this land, brought with them and instituted the practices of English law. For it is a dynamic system. It can, and must, and will evolve to solve and meet the changes in social, industrial and international relationships taking place in the world today. 'Law and order' is one of today's important political issues. There is a danger however that we try to achieve too much order with too little law, by bypassing the processes we have inherited from those eight centuries of experience and hard fought battles against tyranny. The people of Queensland look to the law to defend their rights.
That year I was spending a brief time at the Victorian Bar. Over the previous years while studying theology and philosophy, I spent my vacations coming here to Queensland to appear in the Magistrates' Court defending protesters who had fallen into the web of legal regulations being wrongly applied to thwart public protest at the whim of the then premier. I was briefed to appear because it was difficult for young barristers here to take the briefs because there was a directive within crown law that those appearing were never to receive any government work. I remember on one occasion running into a mate from law school days who by then was a judge's associate. He is now a respected Supreme Court judge so I will not name him. He told me that he had just been up to crown law trying to fix up his pay. He met a magistrate who unloaded rather freely. The magistrate said that he was tied up in the 'expletive deleted' demonstrator court: 'We have this flash Jesuit from the south who has come putting all sorts of legal arguments which we cannot understand. But that's not the worst of it. When we reject his submissions, he is just so 'expletive deleted' polite.' I returned to Melbourne that weekend well-satisfied, though troubled that my advocacy was not sufficient to render comprehensible the points being made about onus of proof and the prosecution's undue reliance on averment provisions.
Reflecting on the experience in the demonstrator court, I wrote my first book, drawing the title Too Much Order with Too Little Law from the insightful remarks of the Queensland governor. I was honoured to have the book launched by Bill Pincus then President of the Bar.
Three decades on, Queensland once again has a premier who finds some political advantage in skewing the balance between law and order, impugning the integrity and vocation of the legal profession. He has described defence lawyers as hired guns. I understand litigation is now pending. No doubt the Premier will retain the services of competent paid counsel. Following upon the Premier's claim that defence lawyers 'will see, say and do anything to defend their clients', I was heartened to read the remarks by Justice Peter Applegarth to a jury being empanelled in your splendid new Supreme Court building:
[T]he lawyers who appear before you in this case and the lawyers who appear in all the cases in this building have high duties, duties to prosecute to the best of their ability, duties to defend to the best of their ability, duties to represent the interests of those who they appear for.
But they have higher duties. And they're demanding. And I'm pleased to say that in this country we have, with very rare exceptions, lawyers who will put their duty to the court and their duty to justice higher than the interests of their clients and winning a case.
Undoubtedly there are many challenges confronting our elected leaders in dealing with violent crime and with pathological sex offenders. But long-term sustainable solutions must be based on respect for judicial independence and for the role of the legal profession. Having chaired the National Human Rights Consultation in 2009, I am convinced that Australia's exceptionalism in failing to legislate comprehensively for the protection of human rights will put increasing pressure on the relationship between the three branches of government. Responding to that pressure, our courts are now isolated from courts elsewhere, including those in the United Kingdom which are constrained and directed by Strasbourg and their own Human Rights Act. In the UK, the Tories long concerned about the influence of Strasbourg are no longer suggesting the repeal of their Human Rights Act but the passage of a new Bill of Rights which will include the principles of the European Convention on Human Rights. Our courts are less able to profit from the cross-fertilisation of ideas from other equivalent jurisdictions such as the UK, New Zealand, Canada and the USA.
Once we investigate much of the contemporary discussion about human rights, we find that often the intended recipients of rights do not include all human beings but only those with certain capacities or those who share sufficient common attributes with the decision makers. It is always at the edges that there is real work for human rights discourse to do. Speaking at the London School of Economics on 'Religious Faith and Human Rights', Rowan Williams when the Archbishop of Canterbury boldly and correctly asserted:
The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.
No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:
As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.
Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly, it may be very difficult to maintain a human rights commitment to the weakest and most vulnerable in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally. In the name of utility, society might not feel so impeded, limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection. Nicholas Wolterstorff says, 'Our moral subculture of rights is as frail as it is remarkable. If the secularisation thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.'
Marking the 60th anniversary of the UN Declaration of Human Rights, the late Irish poet Seamus Heaney said:
Since it was framed, the Declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system. The articulation of its tenets has made them into world currency of a negotiable sort. Even if its Articles are ignored or flouted — in many cases by governments who have signed up to them — it provides a worldwide amplification system for the 'still, small voice'.
The concept of human rights has real work to do whenever those with power justify their solutions to social ills or political conflicts only on the basis of majority support or by claiming the solutions will lead to an improved situation for the mainstream majority. Even if a particular solution is popular or maximises gains for the greatest number of people, it might still be wrong and objectionable. There is a need to have regard to the wellbeing of all members of the community.
The late Professor Louis Henkin, arguably the US's most outstanding international human rights lawyer of the twentieth century, neatly summarised the varying perspectives on the origin and basis of human rights, espousing the centrality of the idea in any society committed to freedom, justice and peace for all:
Although there is no agreement between the secular and the theological, or between traditional and modern perspectives on human beings and on the universe, there is now a working consensus that every man and woman, between birth and death, counts, and has a claim to an irreducible core of integrity and dignity. In that consensus, in the world we have and are shaping, the idea of human rights is an essential idea.
'Human rights' is the contemporary language for embracing, and the modern means of achieving, respect and dignity for all.
At his swearing in to the High Court last year, Justice Patrick 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.
Soon the Attorney General will toast the Queensland legal profession. I join with your president in saluting those who will be receiving their 50 year membership pins and the President's Medal, as well as the winner of the firm Equity and Diversity award. I applaud especially those who have been attentive to the 'still, small voice'. In the challenging times ahead here in Queensland may all members of the profession including those who have already given 50 years of service to the community take to heart President McMurdo's recent comments to the newly admitted practitioners:
As members of the legal profession, together with the assistance of an independent judiciary, you play an institutional role in Queensland's precious democracy. The independent legal profession operates as a check on the abuse of executive power and ensures that every citizen has access to the rule of law which provides equal justice for all, regardless of gender, race, skin colour, religion, sexual preference, power or wealth.
May this continue to be the case in the Sunshine State no matter what the prevailing ethos of executive government or the populism of the parliament. Without your independence and attention to conscience, the arc of the moral universe will be skewed away from justice when our elected leaders think they can maintain order without law. Together, performing their respective roles, and respecting the roles of others, elected politicians, unelected judges and professional lawyers can deliver that most valuable social good — justice according to law, for all persons. Despite our differences, let's all support each other in discerning and then playing our part in the midst of present controversies.
Fr 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.