The Victorian Bar is the body of lawyers who practise law as barristers. It descends from the English body that together with the English judges built the common law that we have inherited.
The common law underlies the English constitution, the rule of law, our political order, and our justice system. If you took the English Bar and Bench out of the history of England and its colonies like us, you would not recognise what was left. I have no idea, but I do know that the role played by English lawyers in shaping every aspect of the English body politic is what distinguishes it, and those like us who derive from it, from the rest of the world.
The Victorian Bar is considering making a statement about the proposed referendum on the Voice. Some barristers oppose that course. I have received two group emails expressing that opposition. Neither writer indicated his view on the proposed referendum. Each just opposes the Bar making any statement. They say that the ‘independence’ of the Bar may be compromised if it is seen to be expressing a ‘political’ view.
I will say what my position on the proposed referendum is. I think it is very right and proper that the people we now know as the First Nations should have a voice deriving from our constitution in the governance of the nation. When I first read the proposal, I could not understand how any sensible person could in good faith oppose it. What passes for debate since has confirmed me in that opinion.
There are two other issues. Now that the proposal is there, I think that its rejection would set back for about two generations the cause of reconciliation in this nation and in its standing in the world.
And the opposition is being driven by what I may refer to as the usual suspects in our politics and the media – those who thrive on conflict and denial, and who like to appear as champions of the people – and who also claim to be ‘conservative’. For them, any kind of ‘progress’ is anathema. They have a splendid determination to stay on the wrong side of history. And they overlook the first obligation of any opposition. What answer do you have that best suits our community?
So – what does the ‘independence’ of the Bar entail? I am not sure. The Bar and the Bench are integral to the justice system as we know it. We are forever reminded that barristers owe a duty to the court. We are not nearly as dependent on government funding as the doctors – putting the judges to one side for this purpose – but many at the Bar, not least among those who run it, have hopes for some form of preferment from one or another organ of government – and very many of them conduct themselves accordingly.
If the notion of the Bar not being dependant on government means anything, it must I think mean that barristers as a group or individually will not allow themselves to be pushed round by government – or any other source of power, like a church, trading corporation, trade union, or political party or faction.
But it cannot mean that the Bar should not criticise a government, or a political party aspiring to govern, for proposing a course that it considers is inimical to the best way of balancing legal rights and obligations across the community as a whole.
The issue gets far murkier when you go to the second broad plastic term of the opposition – ‘politics’.
Someone – it was probably Aristotle – said that man is a political animal. The Greeks would say that, because people lived in a polis. We say it because we must talk about the way we get on with each other. We are different to a rhinoceros or a bull terrier, or one of those dilapidated foxies that yap at our heels. We talk about getting on with each other. That is called politics. Then we make rules. That gives us the law. Then we get people learned in the law to advise us, and act for us, and, if they are so appointed, to decide our disputes according to law.
Why should you seek to preclude a body that represents lawyers from expressing a view on a proposed law? What if the government said ‘We will legislate to make judges subordinate to parliament? Or to abolish trial by jury? Or the rule of law? Or democracy?’
Well, do people say that the Bar should not express a view on an issue where the two major parties have conflicting positions? That cannot be right. That would entail that the rights of the Bar, and the interests of the community, would depend on decisions made within one or another political party, or faction, and quite possibly by people who have not been elected to any parliament.
The Bar has an interest, and in my view an obligation, to comment on proposals to change the law on any number of issues that have been the subject of party-political disputes. Such as the death penalty; same sex marriage; euthanasia; mandatory sentencing; the ambit of discrimination laws; legal aid; divorce; superannuation; taxation; a proposed Bill of Rights – and so on.
If people say that the advice of the Bar is respected on some issues, and that such respect may be diminished if the Bar expresses a view on the proposed referendum, can they tell us what such issues are, on which we may properly opine, and why such opinions are not being expressed on ‘political’ issues?
The point seems to me be that the rights and obligations of the Bar, and the correlative interests of the community, should not be defined simply by the application of a label, especially one as ‘porous’ as ‘political’, when applied to a notion as nebulous as ‘independence.’
And that is especially so here because so many people regret that so few chose to turn the best interests of our First Nations people into a party-political issue. In my view, those politicians and their flag bearers should be deeply ashamed of themselves.
The hostility of such people is curious. They are heavily into ideology, which just does not wash here or in England, and they trade – yes, trade – on conflict and division. They bang on and on about freedom of speech and religion, and they use code terms like ‘woke’ and ‘virtue signalling’ and ‘cancel culture’, but they are quick to upbraid anyone who departs from their line. Those who joined in what looked like a latterday pogrom against Stan Grant may well now support a push to ‘cancel’ the Victorian Bar.
And it does not help that their front man is a politician not previously noted for his breadth of vision, or his seeking to advance a fairer Australia.
The time has long since passed when trading corporations and representative bodies could be bullied out of taking a position on moral or political issues, like same sex marriage or climate change, when those bodies got sick of the failure of government to do anything at all about them.
The interest of the community in knowing what are the views of the legal profession on a legal issue is all the greater where palpable nonsense is being put about by those who should know better, and we the people have allowed ourselves to be scared or bluffed out of implementing most necessary changes to our laws far too often in our short history.
And the role of bodies representing the legal profession in dispelling forensic claptrap is critical given the reticence among former judges and the enforced silence of current judges.
The ultimate issue is simple. Should our constitution allow the original owners of this land a right to be heard in its government?
Our aboriginal peoples did not ask people from the other side of the world to come on to their land. With the help of the gun, the bottle and the bible, we nearly wiped them out. The one indisputable benefit of the British occupation has been the arrival of the rule of law.
A central part of what we used to call ‘natural justice’ is the right of people to be heard before a government moves against them. That has been part of the law of England since 1215. It came out here with the first fleet. It is central to our conception of civilisation. It simply passes my understanding how any person, let alone a lawyer brought up in the common law, could now seek to deny that right to the original Australians. In the name of Heaven, have they not suffered enough?
It is emphatically not the role of ‘conservatives’ to rip up a millennium or so of our history. Had our ancestors in the law adopted the posture that lawyers should stay out of politics, we would not now be worrying about how to deal with the Stuart Kings. We might be asking if we should meet with the last Angevin king at Runnymede in order to strike a political deal that might change the course of the history of the world. We would be still fumbling in the dark, like those at the back of Plato’s cave.
In my view, we should respect the right of the Victorian Bar to be heard on the issue to be put before the people of Australia in the proposed referendum on the constitution.
The Voice – common law and the rule of law – obligations of a profession.