The Newman Government’s anti-bikie laws

Media Release

Below is a transcript of a speech given by the Hon Justice JA Dowsett of the Federal Court of Australia to graduating students at the QUT Faculty of Law’s graduation ceremony on Monday 9 December, 2013.

We would like to draw your attention to the portion of Justice Dowsett’s address which is highlighted. These words from Justice Dowsett illustrate superbly the inherent danger of Premier Campbell Newman’s so-called anti-bikie laws, which we believe are an attack on our fundamental right of freedom of association.

Chancellor, Vice Chancellor, Professor Humphrey, new Graduates, Ladies and Gentlemen,

I am very pleased to be sharing this important occasion with you. That so many young people (and perhaps a few not so young) dedicate themselves to the study of the law demonstrates the critical role which it plays in our democracy. I shall say a little more about that subject, but before doing so, I want to acknowledge the efforts which have led to our being here today. Obviously, the day belongs to the new graduates. I acknowledge your great achievements and congratulate you upon them.  I acknowledge also the support and assistance offered by your families and your teachers. I congratulate and thank them. Few gifts can be as valuable as a good education. I shall return to that theme.

First, I want to say something about the role of the law and lawyers in a democratic society. No doubt many of you have, from time to time, thought about this question. Those of you who continue in the law will probably revisit it in the years ahead. In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ said at [49]:

Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, “socially derivative and non-autonomous”. As Professor Honoré has pointed out, it is axiomatic that “all laws are laws of a society or group”. Or as was said earlier, in Paton’s Jurisprudence, “law is but a result of all the forces that go to make society”. Law and custom arise out of and, in important respects, go to define a particular society.  In this context, “society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.

Recognition of this fundamental proposition, that there is no law without society and no society without law, suggests a much more important role for the law and for lawyers than often appears to be the case. In effect the law is the adhesive cement which holds society together and, at the same time, reflects and defines its character. In particular an authoritarian legal system will bespeak and foster an authoritarian society. A liberal democratic legal system will bespeak and foster a liberal democratic society. In this context, the law is not merely the written words which reflect or prescribe legal rights and duties, and the methods for recognizing and enforcing those rights and duties. The legal system also consists of the institutions and people who make it work, the courts, the judges and practising lawyers, and, I think, those who teach and research the law, the legal academics if you like. The ethos of the law – its traditions and values, and those of its institutions and people – are also part of the overall legal system.

Those of us, who are trained in the law, and enjoy a statutory monopoly in its practice, have a duty to the law and to the society which has produced it, and which is defined by it. The content of that duty may not always be obvious, but some aspects are beyond dispute. In a liberal democratic society, the law is expected to be clear, to protect personal safety, to protect basic rights, including property rights and to meet basic perceptions of fairness. In being fair, we must often seek to uphold the rights of the successful, to enjoy the fruits of their success and, at the same time, protect the less successful from exploitation. It is not always an easy combination. It is our duty to ensure that the law fulfils these basic expectations. To the extent that we can, we must seek to ensure that legal services are available to those who need them. We should champion the cause of legal aid and the availability of pro bono legal assistance.

I do not propose to say much about the ways in which we go about our day-to-day work. Rather, I want to suggest that as lawyers, and regardless of whether we practise or not, we have the capacity and, I believe the duty to keep an eye on our society and our law, so as to ensure that neither moves away from the fundamental principles to which I have referred. This is not a function for which you will be paid. It may, on occasions cause upset and discomfort. It may cause you to take unpopular public positions with respect to particular issues. However, if the lawyers do not speak on behalf of the law and the society which it defines and regulates, who will?

I want to suggest to you a few areas of our society and its government which need watching and/or protecting. The first is simply “government”, in all its forms and branches. Whilst I have no doubt that most politicians and public servants are well-motivated, experience demonstrates that the gap between government and the people can sometimes be extreme, although not always obviously so.

Distance can blunt a politician’s sensitivity to the effects of legislation and political decisions on other people. Governments and parliaments frequently do things which appear to have short-term beneficial effects, sometimes for the people, sometimes for the politicians, but actually threaten fundamental values in our society. Or they fail to recognize the full extent of the adverse consequences for some groups within society, particularly those who are less vocal or less well represented in the corridors of power.

As lawyers we not only know the law. We also become very familiar with the ways in which it affects people’s lives and interests. Despite public references to lawyers and ivory towers, the reality is that collectively, we see the actual consequences for individual citizens and society, a view which government often does not have. The law is the instrument by which most government policies are implemented. We should not be afraid to speak out, particularly if we see threats to groups within society, or to the values which the law upholds. You have no doubt heard the words of Pastor Niemöller concerning the rise of the Nazis in Germany:

  • First they came for the communists, and I did not speak out because I was not a communist;
  • Then they came for the socialists, and I did not speak out because I was not a socialist;
  • Then they came for the trade unionists, and I did not speak out because I was not a trade unionist;
  • Then they came for the Jews, and I did not speak out because I was not a Jew;
  • Then they came for me and there was no one left to speak for me.

You might also like to keep an eye on judicial independence. Of course I have a vested interest in that subject. In this company I probably do not need to explain or justify the notion of judicial independence.  Judicial independence does not belong to the judges or the lawyers. It is the right of each citizen that the law be applied by an independent judiciary which does not owe allegiance to government or to anybody else.

Although judges have substantial decision-making power, we have no real power when it comes to enforcement of our decisions or, for that matter, protection of our own independence. We rely on public support for, and acceptance of our work. In particular, we rely on the support and acceptance of the legal profession. All lawyers have a duty to respect judicial independence, and to educate others as to its importance. The judicial process is, at least superficially, at odds with some aspects of modern egalitarianism. It may appear odd that one person should be able to decide on the rights and obligations of another, an unelected person at that. It is too easy for a would-be critic to write off the judicial process, as not reflecting society’s values. My thesis is that the law reflects more basic and more permanent social values and norms. It is because the process is so little understood that it needs your protection.

Finally, I suggest that you should continue to be interested in education. For as long as a person is capable of rational thought, his or her education continues, or at least it should. The storehouse of human knowledge and experience is almost infinite in size. The pleasure of exploring it is immeasurable. Your education to this point has really been designed to prepare you for life-long learning.

I suggest, too, that you be watchful concerning the quality of education in our society. I am not sure that government decision-making in this area always recognises its fundamental importance or the truth of that well-known aphorism “If you think education is expensive, try ignorance”. As citizens we should concern ourselves with ensuring that governments recognize the importance of education and fund it accordingly.

We must also insist that as a society, our educational goal is the preparation of young people for life, not simply imparting vocational skills. Knowledge of the collective experiences and achievements of our civilization allows us to appreciate our place in society, and to contribute to its future.

Once again, I congratulate the graduates and those who have helped them to this point in their lives. I wish you all well and thank you again for inviting me to help you celebrate.