The changing face of the law across generations

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In July 1863, 153 years ago, the David McIver, a migrant ship, arrived in Hervey Bay carrying 404 immigrants, there having been only one death at sea but also nine births on the 107-day voyage from Liverpool in England.

Margaret Hornagold, Cathedral College student Terrence Sullivan and Frank Brennan after the official launch of Law Year at St Joseph's Cathedral in Rockhampton.My great great grandmother Annie Doyle was on board with her five children, including my great grandfather Martin. Annie was an Irish widow. I suspect she was unable to stay on her farmland in Kilkenny once her husband died. And under the law as it was, there was no way she could have inherited any land. She had to look further afield.

Except for the US Civil War, I daresay she would have headed for somewhere like Boston where many indigent Irish had previously gone following the Great Famine seeking a new life.

It must have been a very bold decision to set out for the other side of the world alone, and with her five children in tow. No doubt, the availability of land grants here in the new colony of Queensland would have been incentive for going all that extra distance.

Hervey Bay is a very expansive but shallow bay sheltered from the Pacific Ocean by the majestic Fraser Island. On 6 July 1863, the crew of the David McIver spent the day searching for a channel until it was anchored in four fathoms of water.

Some of the crew got into a boat and made for the shore at Urangan. They came ashore and found two Aborigines. I presume they were males. Those two men then without protest accompanied the crew in the boat and showed the crew the way to Captain Jeffrey's Admiralty Survey Camp. The David McIver was only the second migrant ship ever to come into Hervey Bay and here were two Aborigines happy to extend a helping hand to complete strangers who must have looked very strange indeed.

One Aboriginal was then commissioned to send word to Maryborough 40 km away. That Aboriginal walked and ran all through the night to bring word of these new arrivals. A pilot was then dispatched. Within two days, a steamer named Queensland arrived, towed the David McIver to White Cliff on Fraser Island, and then received the disembarking passengers to transport them up the Mary River to the port of Maryborough where they arrived on 9 July 1863.

I know nothing more about those Aborigines who played their part in the safe arrival and settlement of my forebears. I happily acknowledge my family's debt to them even 153 years later.

 

"Looking into our own hearts and identifying with the plight and ideals of our clients, we can shape the law to reflect more completely the ideal of justice."

 

On my first visit here to Rockhampton in 1982, I met one of the Munns family from Woorabinda. Mr Munns said to me, 'Brennan. Are you any relation to that Judge Brennan?' I knew he was referring to Annie's grandson Frank Tenison Brennan who had been the Supreme Court judge here in Rocky from 1925 to 1947. Without thinking and rather proudly I answered, 'Yes, he was my grandfather. In fact, I am named after him.' Mr Munns drily observed, 'Yeah, we used to call him 30 days!' It was only later that I thought '30 days' was fairly benign, given the jurisdiction of the Supreme Court in those days, and given the relationship between Aborigines and the post-colonial law back in the 1920s and 1930s.

This morning, Margaret Hornagold has welcomed us to country here in this cathedral together with the local church leaders of the Catholic Church, the Anglican Church and the Uniting Church. I take pride in the fact that Judge Brennan's son, my father, is here with us today. He was instrumental in the High Court's Mabo decision which recognised the Aboriginal relationship with land, affirming that Aboriginal rights to land pre-existed colonisation and survived the assertion of sovereignty by the British crown. Native title would have existed on the land granted to the Brennans and the Geraghtys who settled in and around Maryborough in the late 19th century. To this day, you can visit the National Trust Brennan and Geraghty Store in Maryborough. The law has adapted and changed, as it should, and as it will continue to do.

When he was sworn in as one of the Queenslanders on the present High Court, 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. Let's hope that it might bend most sharply here on the Tropic of Capricorn.

Through the prophet Jeremiah, Yahweh promises the people a new covenant: 'I will put my law within them and write it on their hearts.' As legal practitioners, we know that we can rarely if ever accord perfect justice. But we can do our part to ensure the delivery of justice according to law. Justice must always seek right and counter wrong. We know that the law cannot counter all wrongs and it cannot protect every right. In helping to shape the common law or in legislating our statutes, we can help reform the law so that it more readily coheres with the community's sense of what is right and wrong. But we know that the law will never protect everyone, including the most vulnerable. Seeking the right architecture for justice, we do not need to look too far abroad or beyond ourselves. Looking into our own hearts and identifying with the plight and ideals of our clients, we can shape the law to reflect more completely the ideal of justice.

Jesus proclaims the well-known Beatitudes: 'Blessed are those who hunger and thirst for justice, for they will be satisfied. Blessed are those who are persecuted for righteousness, for the kingdom of heaven belongs to them.' Unless we the practitioners of the law hunger and thirst for justice, our clients will not be satisfied and our society will be the lesser, failing to espouse justice according to law. Legal practitioners, and not just their clients, should expect occasionally to be persecuted for justice as we know that no legal system can deliver perfect justice, and those with political and economic power will sometimes oppose it. Perfect justice for all will be assured only in another time and in another place, what we Christians refer to as the kingdom of heaven. On our earthly pilgrimage, each of us is encouraged to hear what God asks of us in Micah's theme: 'to live justly, to love tenderly, and to walk humbly with our God'.

Under our constitutional arrangements in Australia, it is not only judges and parliamentarians who are the lawmakers. The makers of the ultimate law are we the people of Australia who alone are able to amend our Constitution, the highest law of the land. At the moment, that Constitution does not mention Aborigines and Torres Strait Islanders. It makes no acknowledgement of country such as that offered by Margaret Hornagold this morning. It makes no acknowledgment of native title as did the High Court in Mabo. It makes no acknowledgement of the prior occupation of those Aborigines who greeted the crew of the David McIver 153 years ago. Next year marks the 50th anniversary of the amendment to the Constitution which took out the adverse references to Aborigines. Following our recent election, we are assured at least six, and possibly seven, members of our national parliament who proudly claim an Aboriginal or Torres Strait Islander heritage. They are represented in all parties and none. How good it would be if our elected Aboriginal politicians could come together across party lines and propose an amendment to the Constitution which recognises them — an amendment which wins the approval of their mob, an amendment which wins approval of their fellow parliamentarians, and an amendment which wins approval of a majority of Australians in a majority of states.

As lawmakers enacting the law written on our hearts we can follow what Paul told the Corinthians was the more perfect way — the way of love which 'always protects, always trusts, always hopes, and always perseveres'. Let's commit ourselves to bending that arc of the moral universe of right and wrong lovingly towards justice in all our professional doings in the legal year ahead.

 


Frank BrennanThis is the homily Frank delivered in St Joseph's Cathedral Rockhampton last week for the annual ecumenical service for lawyers.

Pictured: Margaret Hornagold, Cathedral College student Terrence Sullivan and Frank Brennan after the official launch of Law Year at St Joseph's Cathedral in Rockhampton.

Topic tags: Frank Brennan, Margaret Hornagold


 

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It was great to catch up with Margaret and to meet Terrence. Margaret was interviewed by the local paper after the service and told them: ‘Father Frank was here and worked very closely with members of the Aboriginal and Catholic Council and others in really developing that social justice framework for what was happening in Queensland at that time and there was some wonderful stories and wonderful friendships that were made during that time that still exist. I am also a law graduate so I was really pleased to come along and do that acknowledgement as well as catch up with some old friends such as Fr Frank Brennan. I think I will come back because I really see the stance of the church and the stance of the law, and how aboriginal people move between the two and the influence that they have both had on institutions from where Aboriginal and Torres Strait Islander people fit and stand within this country, have long been some corner stones in some ways but we still need to clean up that inner area where we are all sitting in at the moment.’ Back in the ‘80s I had worked with Terrence’s grandfather Percy Powder who was chairperson of the Woorabinda Aboriginal Community Council. It was unimaginable back then that one of Percy’s grandchildren would be completing secondary school and preparing to go to university to study music.
Frank Brennan SJ | 24 July 2016


Thank you Fr a Frank for this powerful homily. I pray that the present members of Parliament will certainly put your words into action. For my part I will write to the Members and ask that thus be done. I will quote from your homily please. Cheers & thanks Rita
Rita Cusavk | 25 July 2016


Hello Frank, I hadn't heard the story of your family's initial reception in this country or of the two hospitable Aboriginal men. Says it all, really! Please God we will learn from that example. So simple. So prophetic. Thank you. Keep well, and my regards to your father. Morag
Morag Fraser | 25 July 2016


Wonderful account and a sensible argument in favour of Constitutional change. However, we must observe that it's to contemporary Australia's shame that the same welcoming hand is not offered to those in distress and seeking our protection - 150 years of so-called cultural and social development notwithstanding. Our treatment of asylum seekers and Australian first nations people is appalling. Witness tonight's story on ABC 4Corners on the brutality of the NT Government ( led by a man of aboriginal heritage !) towards children in care. We, the people have to demand change, now.
John and Trish Highfield | 25 July 2016


Rev. Your Brennan history is fascinating . Really enjoy Eurekastreet. Met a friend of yours. Wayne Aitkinson , thought you were wonderful, His wife's background is amazing. Going back in our history to Henry Gratten and the Guinness connection. Take care , hope to be in Rome for close of year of Divine Mercy. Won't have a bottle of wine with me 'tho. Máire
Máire O' Donoghue | 25 July 2016


If we are to go the way of 'Recognition' (as Frank would, I think, prefer) rather than 'Treaty', then I think they it is important that the form of recognition be drafted and approved by our 'First Nations' people before it is put to the rest of us for adoption. It' important, I think, that whatever goes to a referendum is not some watered-down version of what our native people really want.
Ginger Meggs | 26 July 2016


A beautiful homily, Frank, particularly because of the story of your family that it contains. I am reading it from Italy and wishing, to adapt your words, that our political leaders might, before I return, look into their own hearts and identify with the plight and the ideals of people who have sought asylum here so they could shape the law to reflect more completely the ideal of justice. Secondly, your story of the 'David McIver' backs up Larissa Berendt's "Finding Eliza", where she exposes the mischievous and dishonest stories that Eliza Fraser told about the aboriginal people who had saved her and those shipwrecked with her; stories that allowed Patrick White to make the greatest error of his life, attributing cannibalism to Aboriginal people in "A Fringe of Leaves".
Joe Castley | 27 July 2016


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