LAW COUNCIL OF AUSTRALIA

32ND AUSTRALIAN LEGAL CONVENTION

CANBERRA, 11 OCTOBER 2001

AUSTRALIAN LAW - AFTER SEPTEMBER 11, 2001

The Hon Justice Michael Kirby AC CMG*

            It is an honour to be asked to address the opening plenary session of the Centenary of Federation Australian Legal Convention. 

LOOKING BACK

            My first such convention was also in Canberra - in 1975.  I had just been appointed to judicial office.  The Governor General, Sir John Kerr, opened the session[1] reminding Australian lawyers of their links to the world, to the Commonwealth and to their region symbolised through Lawasia[2].  The Prime Minister, Mr Whitlam, quoting Tacitus, praised his government's many legal achievements, including the establishment of the Law Reform Commission.  He too took a global outlook[3]:

"I believe we want a world in which the rights of citizens, rich or poor, are effectively protected by a vigorous legal profession, in which the mechanism of the law remains a primary and effective instrument for social justice".

            As was common in those times the opening address was given by an English Law Lord, Lord Cross of Chelsea.  It was about legal aid.  He seemed to lament that law students were too law abiding.  He thought that an "admixture of the heady wine of the social sciences with the sombre diet of the law might not come amiss"[4].  The topics of the conference touched on subjects still relevant.  Unmet needs for legal services[5]; teaching legal skills[6]; a State[7] and tax[8] planning.  Hints of the future were found in papers of automation of conveyancing[9], updating court procedures[10]; the rights of women and children under the coming new family law[11]; environmental law[12] and some closing self-scrutiny about what was wrong with the adversary system[13].

            I knew, or came to know, most of the speakers whose papers are found neatly printed in the Australian Law Journal of 1975.  The distinguished judges (like Lord Cross, Sir Richard Blackburn and Sir Richard Eggleston) have laid down their wigs and most have died.  The leading lawyers have become judges and many have retired or died.  Some of the problems presented then have been solved; most have not.  New problems have arisen.  Of all the judicial officers who held office when we convened in Canberra then, only Kemery Murray (at the time a judge of the District Court of South Australia) and I are left.  When Canberra's turn comes around again, the anxious concerns of the law and of Australia and of the world will still be there.  The law gives its practitioners many things.  But one of the chief of these is a sense of history and of perspective.  For we are companions in a long journey.  Our legal tradition boasts an almost unbroken chain of eight hundred years.  It has many imperfections, and we will speak of them.  But it also has great strengths.  These will mostly go unsaid.  But at the beginning, we should reflect upon them.

THE AGENDA

            These conventions have changed over the last quarter century.  Specialised meetings have sprung up.  Yet this is still the only occasion that brings together the entire judiciary and legal profession to address issues of common concern.  Looking at the programme it is interesting to observe the continuing themes and those that are new.  The examination of topics of special interest to young lawyers, a breakfast of Australian women lawyers, those working for equal opportunity and with indigenous legal issues present aspects of the legal profession almost totally missing from the last conference in Canberra.  Legal aid, family law, business law and legal admission and training are still on the agenda as is access to justice.  The innovation of the State of the Judicature Address will be continued in the closing session, this time given for the second time by Chief Justice Gleeson.  Back in 1975 the news about the High Court related to the announcement of the intention to go ahead with the building of the Court's home in Canberra[14].  There was also an editorial about "five New South Wales judges on the High Court"[15].  The comment was not entirely favourable.

            However, it is the centenary of our national Constitution that sets the theme for most of the plenary sessions.  They will address the challenges of cooperative federalism; the issues of constitutional reform relating to republicanism and the role of the States and the topic of basic liberties and whether we can forever hold out against the almost universal idea of entrenched and fundamental constitutional rights.

            It was inevitable and appropriate that the planners of this conference should decide that its overall theme would be woven into reflections about our hundred year old Constitution.  At this time and in this place that topic really chose itself.

            Yet it does seem difficult to enliven a lot of interest amongst the Australian population about their Constitution, what it says and how it works.  This point is made in a new book by Melissa Castan and Sarah Joseph that affords "A Contemporary View" of the Constitution[16].  Summing it up, they say:

"A perusal of the Australian Constitution reveals it to be pragmatic rather than an inspiring document.  … The desire to federate did not evolve from a desire to be free from the colonial master … The colonies predominantly wished to federate for practical reasons rather than revolutionary reasons.  This may be contrasted with the decolonisation experience of the United States where a war of emancipation was fought to eject the British.  One result of this contrast … was that the drafters of the US Constitution were much more concerned with issues of emancipation and freedom from oppression.  … Freedom of the individual was not a major concern of the drafters of the Australian Constitution [which] adhered more closely to the British tradition of parliamentary sovereignty and trust i the rule of law.  The Constitution essentially reflects the contemporary attitudes of the drafters and the persons in power in the colonies, White, wealthy men.  Indeed, in most colonies only men were permitted to vote on whether to adopt the draft Constitution ... Indigenous Australians had no input ... Women we also largely excluded from the Convention Debates [so that] the Constitution reflects a gendered [male] view of the 'essentially federal matters' that deserved explicit attention.  Whereas public, external 'male' concerns such as defence, trade and commerce and external affairs were addressed … the chief concerns of women of that time, such as social welfare reform, the welfare of the family and domestic 'private' sphere were in the main omitted and therefore left constitutionally unregulated within the States' domain".

            For all that, the seeds of new ideas were there in the Constitution awaiting discovery.  Because at Federation women had secured the right to vote in South Australia and Western Australia, s 41 became a suffragette measure.  It guaranteed all persons with a State franchise of the right to vote in federal elections.  Moreover, the inclusion of the federal power over "external affairs" afforded unexpected means by which federal involvement in areas of private law could be expanded beyond the wildest dreams of the suffragettes and other social welfare reformers of 1900[17].

            Every lawyer knows of the ongoing debate about the principle that should govern constitutional interpretation.  Should it be performed with a dictionary frozen in the language and concepts of 1900?  Or should it move with the times[18]?  Different justices of the High Court have had different views on this and sometimes different opinions in different cases[19].  But that great judge, Sir Victor Windeyer, said that it was inevitable that each generation would look at the text and see in its sparse words the meanings apt for the time they lived in[20].  Given the great difficulty of achieving formal constitutional change[21], it is just as well that the High Court has, over the century, looked creatively at the document put in its charge.  Had this not been done, our Constitution would have remained the instrument for giving effect only to the aspirations of rich white males of the nineteenth century.  Fortunately, we have done better than this.  That success must be placed at the door chiefly of the Parliaments of Australia that enacted laws, sometimes pushing the envelope, to respond to the needs of their time.  But lawyers can also take some credit.  If you look at the great cases of the first century of the Constitution, most of them, we can say, with the wisdom of hindsight represented the right decision for Australia and its people.  The Engineers' Case[22]; Barge's Case[23]; the Defence Powers Case in time of War[24]; the Bank Nationalisation Case[25]; the Communist Party Case[26]; the Tasmanian Dams decision[27]; and to these I would add the Native Title Cases[28] - although that chapter is by no means complete and it is not strictly a product of constitutional law.

[29]

            It was natural that the rich, confident white males of the 1890s who designed the Constitution should reject the notion of a Bill of Rights.  In a largely monochrome society, isolationist, somewhat racist and imperial - it was to be expected that unalloyed faith would be placed in the elected Parliaments of the nation to protect civil liberties.  Generally speaking, this faith in our democracy has worked.  Give us time, and our elected Parliaments will usually work their way towards just laws that reflect respect for minorities because that is the kind of majoritarian rule that the Constitution envisages.  Over the century we have indeed made great strides.  We have at last begun to address the wrongs to the indigenous people of Australia.  We have reformed many laws that disadvantaged women.  We have provided protection against stereotyping on the grounds of disability.  Within recent weeks federal legislation to abolish compulsory age retirement has been introduced.  Alas it will be of no benefit to High Court Justices.  Most of us are members of some minority or disadvantaged group.  The laws against homosexuals were still firmly in place in 1975.  To this day, serious disadvantages persist in the law and work injustice.  If you have been on the receiving end of injustice in the shape of law (or if someone close to you has suffered in that way) you do not like it.  It helps you to see that the law can sometimes be an instrument of oppression, even in our much blessed country.  This is why, many consider that Australia needs a constitutional Bill of Rights.  After all, even Britain, now itself less monochrome, has national legislation[30] and is subject to the European Convention on Human Rights and the Strasbourg Court that upholds it.  If Australians were to accept this idea, the precedents of Canada, New Zealand and the United Kingdom seem the safe way to go.  This would involve first enacting such a measure as a statute.  The attempt to go directly to constitutional incorporation seems too bold for Australian tastes.

            Before September 11, 2001 there were plenty of topics for us to talk about at this Convention.  Puzzling, serious concerns of the Australian legal profession and judiciary.  The papers were full of our topics.  Headlines proclaimed "Uproar" over judges' pay[31]; but the source of the uproar depended on who you spoke to.  The editorials called for opening up of courts, with cameras filming the third branch of government as they do many activities of the others[32].  Chief Justice Gleeson demurred[33].  Proposals for a National Judicial College seemed to be progressing in the right direction but at a stately pace[34].  The establishment of the Federal Magistrate's Service has created a new operating chapter 3 court for the first time since the Federal Court and  Family Court of Australia were set up soon after the last Canberra Convention[35].  The question of a judicial code of conduct or guidelines for our expanding judiciary is on the agenda[36].  Many practical topics crowd the stage:  professional insurance indemnity; professional immunity from suit[37]; the role of lawyers as financial advisers[38]; our contribution to the establishment of a new justice system for East Timor[39]; proposals for a new code or restatement of contract law to fit the age of informatics[40].  The list is virtually endless.  Were the times different, we might reflect with greater enthusiasm upon them.  But here we meet in the aftermath of astonishing events that seem to have changed much about the world, its economy, its confidence and its legal systems.

            It is impossible for Australian lawyers to collect in Canberra and to proceed in these next few days as if nothing has happened.  It is impossible for us to see our Constitution as if it speaks only to Australia and Australians.  It speaks of us to the world[41].  It is impossible to pretend that the comfortable topics of the legal profession have the same priority as this moment.  It is necessary for us to reflect upon the moment.  But to do so keeping our priorities and viewing recent events in the context which our Constitution, our institutions, our law and our tradition of human rights demands that we take.

A CENTURY OF TERRORISM

            It is crucial to realise that the last century - during which Australia's Constitution matured - was a century of terrorism.  It was not always called that.  But from the early days - from the anarchists and communists of the early years, that was the reality.  It struck home within the British Isles, in the midst of war, in the Easter Rebellion that arose in Dublin in 1916.  Not a year of the century was free from terrorism.  Mahatma Gandhi deployed a very skilful combination of peaceful resistance and political showmanship ultimately to lead out of the British Empire the jewel in the crown.  Mohammed Ali Jinnah did the same with Pakistan.  Nelson Mandela carried forward over many decades his leadership of the African National Congress, modelled on that of India.  What did these three leaders have in common?  All were lawyers.  All were gifted communicators. 

            Other "terrorist" movements were led by people who honed their skills on the battlefield - Mao Tse-tung, General Giap, Ho Chi Min, Jermo Kinyata.  All around the world, as the old European empires crumbled, terrorists struck home.  They did so against the autocratic Soviet and German and Nazi empires at the cost of fearsome reprisals.  They did so against the relatively benign British empire in Palestine, Kenya, Malaya, Aiden and Cyprus.  They attacked the faded glories of France in Algeria and Vietnam.  The new empires were themselves attacked, as in East Timor, West Irian, Chechnya, Kosovo.  Terrorists mounted their separatist campaigns in Northern Ireland and Quebec.  Our own region has not been spared.  The successive coups in Fiji involved unconstitutional and violent means.  Bougainville and East Timor were uncomfortably close.

            Back in 1975, it was within living memory to recall the Cyprus campaign of General Grivas, a commander of no more than 250 Eoka terrorists with extreme right-wing nationalist sympathies, who ultimately drove 28,000 British troops from the island by destroying their political capability to wage war[42].  The same was the fate of the French in Algeria.  The same has not proved true of Northern Ireland.  Whereas the "Kolons" constituted only 2% of the French population, the overwhelming majority of the Muslims in Algeria had a common interest in forcing their increasingly French rulers to leave[43].  Eventually they succeeded.  But in Northern Ireland, there was always, and still is, a substantial number in the divided communities who found continuing connection with the United Kingdom acceptable and terrorism unacceptable[44].

            Why do the Red Brigades in Italy and the Barder-Mainhof faction in Germany fail to undermine liberal democracies when other groups succeed?  Are there any lessons for the law in the way different societies have tackled terrorism?  Are there lessons for us in Australia?  The story of Uruguay is instructive.  Before 1974, it was one of the few longstanding stable constitutional democracies of South America.  It had just adopted a strong constitution in 1967 which incorporated rule of law and human rights principles.  But then it suffered a serious economic downturn that threatened its welfare laws.  And on top of this it had to grapple with the challenge of a small determined band of terrorists known as the Tupamaros.  They resorted to indiscriminate acts of violence and cruelty that shook the Urangan society.  The citizens, and especially the military, began to look around them.  Coups had occurred in Brazil in 1964, in the Dominican Republic in 1965, in Chile in 1973.  In Uruguay in 1974 the generals struck.  One by one, after the coup, the constitutional guarantees were dismantled.  More than 5,000 civilians in a country of fewer than 3 million inhabitants were incarcerated to very long prison terms for having committed purely political offences.  Other detainees were kept in communicado.  Habeas corpus was withdrawn.  Immunity was granted to officials.  The country that had been known as the "Switzerland of Latin America"[45] fell into a period of escalating lawlessness.  At first, it had much public support out of fear of the Tupamaros.  But increasingly unaccountable power bred oppression.  The Tupamaros were defeated.  But it took fourteen years and enormous struggle to return to constitutionalism[46].  Even then there had to be amnesties for the military and other officials.  A deep scar was left.

            Australia has had nothing like the threats of terrorism in Cyprus, Algeria, Northern Ireland or Uruguay.  Naturally, everyone wants to keep it that way.  It is true that at the Commonwealth Heads of Government Conference in Sydney in February 1978 a bomb incident occurred and three people were killed.  This led to what one analyst called "the synthetic panic which gripped the government (and was exploited by the media)"[47].  Leading officials "accepted without question the assumption that there was a real and present [terrorist] threat in Australia"[48].  It led to inquiries[49] and legislation[50].  Justice Hope, the Royal Commissioner found, however, that there was little evidence that Australia's security organisations had the qualities of mind necessary for the "skilled and subtle task" of intelligence assessment"[51].  This was unsurprising.  Other inquiries into the special branch files of police in New South Wales and South Australia - the latter conducted by Justice Michael White[52] - found ludicrous biases in the identification of the supposed threat to our nation's security.  According to Justice White, all State Labour leaders became the subjects of index cards as "subversives".  As he put it "Like the Maggino Line all defences against anticipated subversion, real or imagined, were built on one side"[53].  This reflected the preoccupations of the FBI in the United States where the ratio of files on left versus right-wing organisations was a hundred to one[54].  The Police Commissioner defined subversion as "… a deliberate attempt to weaken public confidence in the government"[55].  Which is exactly what, in a democracy, the Opposition is supposed to do, does all the time and will be doing with rare abandon in coming weeks. 

            So if we ask why did terrorism succeed in Cyprus, Algeria but have only limited success in Ulster and Quebec and fail abysmally in Italy, America (and to the extent that it has occurred) Australia, the answers are complex.  But the most important one is that those societies that succeeded against terrorism refused to play into the terrorists' hands.  As the Rand Corporation's analyst, Brian Jenkins has pointed out "Terrorists want a lot of people watching and a lot of people listening and not a lot of people dead"[56].  They want publicity, the last thing that most perpetrators of non-political violence seek.  They form a symbiotic relationship with media and create media events.  Kidnapping, hijacking and suicide bombs introduce elements of high tension, as does indiscriminate brutality[57].  Of course, free societies must, do and will cover such events in their media - which is itself now adapted to vivid images and sites of death and suffering.  But keeping visual horror in perspective is an important clue to defeating terrorists at their game.  So is keeping one's perspective and analysing the reasons, beyond irrationality, that lie behind the acts of terror to see if some of them are just and need to be solved.  According to Justice Hope's review, between 1968 and 1977 16,052 deaths could be attributed to international terrorism[58].  Such losses, appalling though they are and worse still when they are multiplied, pale into insignificance beside other global causes of death.  The 36 million dead from HIV/AIDS, most of them in sub-Saharan Africa.  Dead to the general indifference of humanity.  The millions dying, mostly in developing countries, from nicotine addiction.  Millions in State-run wars and from hunger. 

            The countries that have done best against terrorism are those that have kept their cool, retained a sense of proportion, questioned and addressed the causes, and adhered steadfastly to constitutionalism. 

[59]

            Exactly fifty years ago, the Australian Constitution received what was probably its most severe test.  The enemy then was viewed as a kind of terrorist and widely hated throughout the land.  His ideas were subversive, methods threatening and goals alarming.  I refer to the communists.  Governments around the world rushed to introduced legislation to increase powers of surveillance, restrictions on democracy and deprivations of civil rights.  In South Africa, the Suppression of Communism Act became, before long, the mainstay of the deteriorating legal regime that underpinned apartheid and brought forth Nelson Mandela and the ANC "terrorists".  In Malaya, Singapore and elsewhere, the colonial masters introduced the Internal Security Acts.  Sadly, many of them remain in place, post-independence, to oppress dissident opinion.  In the United States of America the Smith Act was passed by the Congress to permit the criminal prosecution of members of the Communist Party for teaching and advocating the overthrow and destruction of the government.  The law was challenged in the courts of the United States.  The petitioners invoked the First Amendment guarantees of freedom of expression and assembly.  But in Dennis v United States[60], the Supreme Court, by majority, upheld the law.  The majority in 1950 confirmed the conviction.  They held there was a "sufficient danger to warrant the application of the statute … on the merits"[61].  Dissenting, Justice Black drew the line between overt acts designed to overthrow the government and punishing what people thought and wrote and said[62].  Those things were beyond the power of Congress.  Also dissenting, Justice Douglas acknowledged the "popular appeal" of the legislation[63].  But he pointed out that the Communist Party was of little consequence in America[64]:

"Communists in this country have never made a respectable or serious showing in any election.  I would doubt that there is a village, let alone a city or county or State which the Communists could carry.  Communism in the world scene is no bogeyman; but communism as a political faction or party in this country plainly is.  Communism has been so thoroughly exposed in this country that it has been crippled as a political force.  Free speech has destroyed it as an effective political party.  It is inconceivable that those who went up and down this country preaching the doctrine of revolution … would have any success.  In days of trouble and confusion, when breadlines were long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut by revolution might have a chance to gain adherents.  But today, there are no such conditions.  The country is not in despair; people know Soviet communism; the doctrine of Soviet revolution is exposed in all of its ugliness and the American people want none of it".

            In Dennis the law was upheld.  But a few months later a similar challenge came before our High Court.  There was no First Amendment.  There was no established constitutional jurisprudence on guaranteed free expression and assembly.  The judges, with one exception, had had no political experience; most were commercial lawyers whose professional lives had been spent wearing black robes and a strange head adornment.  An Australian battalion was fighting communists in Korea[65], the government had a mandate for its law.  Most Australians saw communists as the bogey-man - indeed their doctrine of world revolution and the dictatorship of proletariat was widely viewed as a kind of political terrorism.

            Chief Justice Latham, like his counterpart in the United States, upheld the law.  He quoted Cromwell's warning:  "Being comes before well-being"[66].  He said that his opinion would be the same if Parliament had legislated against Nazism of Fascism[67].  But the rest of the Court rejected the law.  Justice Dixon pointed out that:

"History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power … [T]he power to legislate for the protection of an existing form of government ought not to be … only to assist those holding power to resist or suppress obstruction or opposition or attempt to displace them in the form of government they defend".

== history, and not just ancient history, demonstrated how Executive Governments constantly sought to cloak itself with power to suppress the liberties of the individual[68].  It was for the courts to ensure that this could only be done within the law.  The Constitution afforded ample powers to deal with overt acts of subversion.  Proscribing a political idea and propagation of that idea was not enough. ==

            Given the chance to vote on the proposal to change the Constitution, the people of Australia, fifty years ago, refused.  When the issues were explained, they rejected the enlargement of federal power.  History accepts the wisdom of our response in Australia and the error of the over-reaction of the United States.  Keeping proportion.  Adhering to the ways of democracies.  Upholding constitutionalism and the rule of law.  Defending, even under assault, the legal rights of suspects.  These are the way to maintain the love and confidence of the people over the long haul.  We should never forget these lessons.  It would seem that in the United States, even in dark times, the lessons of Dennis and of Korematsu[69] are being remembered[70].  Every erosion of liberty must be thoroughly justified.  Sometimes it is wise to pause.  Always it is wise to keep our sense of proportion and to remember our civic traditions as the High Court Justices did in the Communist Party Case of 1951.

DENOUNMENT

            When the United States Supreme Court assembled on 1 October, for the first time since 11 September, the Chief Justice led everyone in the courtroom in a moment of silence in remembrance of the disasters in Virginia, New York and Pennsylvania.  "Our hearts go out to the families of the killed and injured", he said[71].  Sitting at the Bar Table was the Solicitor-General of the United States, sometimes called the "Tenth Justice" whose wife, Barbara Olsen, was a passenger in the plane that crashed into the Pentagon.  Our hearts too go out to all the victims.  To every victim of terror in every land.  And to those who suffer needlessly in every way.  But as lawyers, we can join in the words of Justice Sandra Day O'Connor.  Diverting from a function to launch a new Law School building in New York, she visited the World Trade Centre ruins and said[72]:

"We wish it were not necessary.  We wish we could put the clock back.  But to preserve liberty, we must preserve the rule of law".

            In the course of a century, we, the lawyers of Australia, have made many errors.  We have sometimes scorned those who, appearing for themselves, could not reach justice.  We have gone along with unjust laws and procedures.  We have been instruments of discrimination and it is still there in our books.  We have not done enough for law reform.  We have often been just too busy to repair every injustice.  Yet in some critical moments, lawyers have upheld the best values of our pluralist democracy.  In the future, we must keep it thus.  To preserve liberty, we must preserve the rule of law.  That is our justification and our challenge.