I can recall in 1991 on the occasion of my first visit to Russia, from which my father had fled on horseback in 1930 leaving his parents and his brother and sister for ever, an episode occurred which has echoed in my mind ever since. My wife and I were in a park in Leningrad, as St Petersburg was called then. It was a glorious summer’s day in July and two Russian friends had taken us to a park for a picnic. We walked past massive old oak trees and under their dark shade along a gravel path, which wound through the vast grassy parkland. Everything was a bright green of the kind you never see in Queensland. In a mimicry of those clichéd love scenes in movies, in which the lovers skip hand in hand over green grass in slow motion, I took my wife’s hand and we plunged over the grass while I bellowed out a tune, I forget what now, but perhaps the theme from Love Story or some such. I was brought round roughly from this foolishness by my Russian friends who dragged us off the grass and back onto the path. “You can’t go on the grass,” they said. I looked around. There was no ‘Keep off the grass’ sign. Why can’t I go on the grass? “Because you can’t”. I observed that there was no sign saying I couldn’t do so. “No, no,” they insisted. “If it is permissible to tread on the grass there would be a sign giving such permission.”
There, in a brief and otherwise inconsequential human interaction evoking the entirely spontaneous and otherwise mundane reactions of the people involved, is a demonstration of the visceral state of belief of two sets of people brought up within two distinct sets of culture, tradition and history. A lesson in constitutional law as a part of the make-up of a human being.
It had amused me a great deal when I had read, long ago, the catalogue of civil rights which had been conferred upon citizens of the Soviet Union by their written constitution. Those rights were every part the equal of those guaranteed to citizens of the United States of America and of which there is, as you know, no written equivalent in our own country. Of course, those rights were never exercised by anyone in the Soviet Union and, perhaps, there were indeed no legal or practical means to have enforced them anyway.
Why is it then, that in a country which had a written constitutional guarantee of full civil rights, two of its citizens behaved with such an instinctive appreciation that they lacked any such rights; while the two citizens of another
country, who had never enjoyed the benefit of any written guarantees of civil liberties at all, acted in accordance with a fundamental assumption that they possessed such liberties in full and that liberty under the law means, at least, that any act is permitted if it is not expressly forbidden by a valid law? Research required by a proposed constitutional challenge has required me to read again the history of the development of our constitutional system from Magna Carta to the enactment of our own Australian Constitution and to the present day.
Freedom, I learned, is the product of civilization, not an inherent attribute of nature. A society will evolve not by deciding upon a set of common laws to obey but by a spontaneous willingness on the part of a group of people to conform to the same standards of conduct. From this habit of principled conformity will evolve an articulation of rules of self-discipline - not to steal, not to murder, not to commit incest and so on.
Such a society will, over the course of time, also determine that there must be some things that nobody has power to do. From this it will follow that minorities will submit to laws conceived by the majority because the majority is prepared to submit itself to those same sets of laws. In due course habituated patterns of law making, voluntary and cheerful obedience to laws justified by the visible application of laws equally to everyone, will result in the evolution of legal institutions of an enduring kind – a legislature, courts, an executive acting in accordance with the rule of law. It is an unshakeable willingness on the part of all of us to conform to these fundamentals which has resulted in our stable constitutional democracy; everything else is just ink on paper.
When it is seen, then, that institutions such as courts, are really nothing more and nothing less than a combination of people who share a common appreciation of expected behaviour and a common knowledge and recollection of how to behave, some of that knowledge being cultural and ingrained and some of it taught as a body of formal scholarship, it may be accepted that an institution has, for just those reasons, an enduring vitality. It is hard to destroy a group. A single person will find it hard to destroy an institution comprised of numerous people engaged in patterns of repeated behaviour guided by devotion to a principle. A single rotten apple will not, in fact, taint anyone else because the others are repelled by the stench.
Nevertheless, there is no guarantee that any such institution is invulnerable to harm. Our personal concern as lawyers – whether we are lawyers in actual practice or like you, lawyers in the making – is principally with the courts. Any Australian lawyer who in due time gains a sense of his or her place in the long British, and shorter Australian, tradition of the administration of justice
will come to take for granted that the system generally works, that it is not corrupt nor corruptible and that those who work within it, by and large, are trying to do their best in accordance with proper principle as they see it. Indeed, I believe that to the extent that we take these things for granted and are right for doing so at the particular time, it is proof that these institutions are functioning properly and proof of their enduring strength. They would hardly be stable and abiding institutions if we had to be constantly worried about them.
However, life is not perfect and threats exist. Fortunately in this country, threats to the integrity of the courts do not arise from criminal behaviour on the part of outsiders or those who work within the system itself. Corruption induced by money or threats of harm to judges or lawyers is unknown. Threats to integrity are more likely to arise from the consequences of a defective personality which is driven not by principle but by selfish ambition or an unhealthy desire for power or prestige. In the case of people on the outside of the system, like politicians with power or influence in such matters, we can add as a potential source of harm a lack of proper education or relevant experience, an absent sense of history and an inability to understand what underlies the need for integrity in public office and why appointing friends just because they are friends to important posts won’t work.
People like these draw strength when they misbehave from the timidity and apathy of lawyers who seek a quiet life but who ought instead be reacting with zealous rage. A willingness to harm our precious institutions makes fools of each one of us and we should be strident in our objection to being made fools. The end of liberty in the sense in which we enjoy it in Australia is not now on the horizon and I do not believe that it ever will be. An end to our liberties of a sudden kind could only be brought about by a cataclysmic event and we, as a people, are not prone to initiate or to take part in cataclysms.
The danger does not lie there. It lies, rather, in a gradual erosion of liberty by the glacially slow elimination of rights and privileges, whether by political or by legal acts, or by the failure or refusal of those who are under a duty to act in accordance with expected standards to do so for reasons of a personal kind. Habitual rejection of principled conduct by any of us who serve the ends of justice will, in time, affect people’s expectations and faith in the system which we serve. I believe that we live in a country in which we expect and require that people be appointed to positions of power because they will do what is right and not in order that whatever they do is, for that reason, to be taken to be right. However, that could change and we can find ourselves working in a legal system staffed by political flunkies or friends of political flunkies.
Appointments made for irrelevant purposes, out of mere friendship or to serve some perceived political goal, degrade our system of justice at its foundation because, by definition, an absence of merit in an appointment means an absence of necessary technical skill or personal integrity.
If politicians persist in degrading the quality of our institutions without objection from the rest of us, our ingrained customary belief in our freedom to walk on Australian grass, the product of centuries of thought, work and sacrifice, will be replaced by a cynical, depressing and correct expectation that the grass is reserved only for the feet of those with the right connections.
The only possible way to prevent something like this happening is for those of us whose lives are lived around or within the institutions of the law, particularly lawyers, to react with loud outrage whenever we sense any intrusion upon our precious ways of life. We have examples of such principled reactions easily to hand. The journalists who, in 1986, wrote the articles and TV documentaries which compelled even a corrupt government to establish a commission of inquiry were such people. The lawyers who worked within the resulting commission, the Fitzgerald Inquiry as it came to be known, were also such people. The report of that commission, which I have been re-reading for the reason I have explained, is worth studying even today and a great deal of it has once again become highly relevant, unfortunately so. The lawyers and law students who work for free on difficult cases to defend the rights of asylum seekers (or refugees as they were called when my own parents came here from a refugee camp in the Philippines in 1949) are also of that kind. In fact, any person who feels compelled merely to write a letter to a media outlet, by a sense that an important public principle has been violated, is also in that category.
Malice, ignorance and selfishness hate the embarrassment of publicity. What all of the protectors of liberty have had in common, from Tom Paine to the lawyers who at the present time act without hope of personal gain for indigent clients oppressed by executive action, is that the remedy they seek always involves a public vindication of rights. They welcome bringing the issues into the public eye upon the grounds of reasoned principle; their opponents hate it.
And what of you, the law student?
I believe that the moment when you begin to regard yourself as a full participant in the administration of justice and a defender of its institutions comes when you decide it has come. It can be now or it may be never. But one thing is true: you do not need a degree or a practicing certificate to consider yourself qualified to be one of those at the barricades.
And you do not need to be a highly experienced lawyer to have a significant effect. In 1977 it was a law student (not me, although I wish it had been) who initiated a private prosecution against the Premier of Queensland alleging a conspiracy to pervert the course of justice. He lost the case, he could hardly have won it, but he won the point: a demonstration that the law applies to everyone equally and that anyone is free to approach the courts for a remedy. And, moreover, he demonstrated that if you have a point to make in defence of liberty and the law you will often find that you are not alone but that others, perhaps powerful others, will come to stand with you if you are prepared, at first, to do it alone.