All are one before the law


All are one before the lawThe 40th anniversary of the last state-authorised execution in Australia has recently passed. We are all the better as a society for having abolished capital punishment. I remember well that fateful day on the 3rd 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 subsequently 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 poorly, in accordance with the premier’s wishes.

Two thousand people went to the barricades and 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.

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.

Once we move beyond the platitudes of justice and peace, how are we to act in society?

All are one before the lawAt the 1988 Yale Conference on Australian Literature, the late Professor Manning Clark lamented,

"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."

The pragmatic, consequentialist ethic in contemporary Australia has long wreaked havoc on outsiders not meriting our respect, but now we risk it 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 witnessed a spirited discussion between Tony Abbott and Kevin Rudd about the place of religion in law and politics. 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. 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 joined a 'coalition of the willing' to remove 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. (Former deputy Secretary of Defence) 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."

All are one before the lawWe 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 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 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.

Let’s pray that, as a profession, lawyers will well serve their clients, and our shared legal institutions, and that as legally trained citizens, they 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 (Galatians 3:28).

This text is an edited extract of an address for the opening of the law year at St David’s Cathedral, Hobart, 2 February 2007 .



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Existing comments

It's hard to belive that Joh B-P ruled Queensland for so long. But then again, Pauline got 22% of the vote in 1998, so maybe not that hard to believe...

Peter Moss | 06 February 2007  

I start to flinch every time i hear the words 'australian values' mentioned, like we have the market on what is right, good, just and fair cornered.

Ann | 06 February 2007  

In "All one before the law" I think that Frank has got it right. However what worried me about one of his recent pronouncements was his inference that it is unethical to discrimanate against politicians, i.e. not vote for them,if voters didn't like where their politicians stood on matters of'personal morality'. Did I misunderstand him? I'm more than happy to be undeceived.

Claude Rigney | 06 February 2007  

Might I undeceive Claude Rigney by referring him to my recent book "Acting on Conscience" (University of Queensland Press, 2007) at p. 84 where I state: "In a democracy, we must start with the presumption that the individual citizen is free to vote for the candidate or party of their choice for whatever collection of reasons or intuitions they wish. There is no point in political philosophers moralising about what factors ought and ought not to influence a prospective voter. Such philosophers may draw up a list of criteria which satisfy them and their circle in their assessment of the relative merits of voters.

But in a democracy, we do not need to expend much energy on making moral assessments of voters and their voting intentions. Such energy is better directed at assessments of those who are elected and of those other citizens who are appointed to positions of public trust requiring them to act in the public interest."

frank brennan | 07 February 2007  

What is the 'Australian Values'? Has a survey ever been taken to establish what it is and if so, then was it ever validated?

It is quite easy to use these terms to support a particular bias, but does the 2000 people who protested against Joh's anti-march law or the wise words from Professor Manning Clark reflect the actions and words of the majority of Australian?

No, I think that it reflected some thoughts by some people, at that particular time - the majority or all? Definitely not.

Barry Leacy | 07 February 2007  

On 3rd February, 1967, I was in Darwin when Ronald Ryan hanged. I had just moved up there from Melbourne, where I was living during at the time of Ryan's escape from Pentridge and during the subsequent police search, capture and trial. Being a journalist I had a certain closeness to the event. One of my best friends, the journalist Jack Ayling, was very close to the Ryan family and became deeply affected as the time of the hanging approached. He received an official invitation to attend the execution but refused because of his emotions and passed the invitation to Ron Saw who wrote a very moving description, which may have had much to do with the fact that it was the last hanging.

What I really want to say here is that Father Brennan has just scratched the surface of what is happening to our society, the sickness that seems to be affecting all of us like a fatal disease.

From the way young people mutilate their bodies with tattoos and rings inserted into their anatomy to the mass indiscriminate systematic slaughter of human beings that is taking place in certain parts of the world, to the matter-of-fact acceptance of torture as a fact of life, to the excitement of the obscene videos of Saddam Hassein being killed, it seems to me that civilisation has ceased to exist, that humanity is regressing into a the primitive state of our pre-history ancestors.

I have had happy and satisfying life and I never been one to despair but at seventy-five years of age I cannot help
looking forward with some sense of gladness and relief to the fact that I may not have to endure the anguish of the 21st century very much longer.

Rod Lever | 27 February 2007  

What was Ronald Ryan's crime?

Casey Collins | 29 June 2007  

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