Opening of Law Week 2017 speech by Bevan Warner 'Valour, Values and Voltaire'

Opening of Law Week 2017 speech by Bevan Warner 'Valour, Values and Voltaire'

Thursday, 11 May 2017

2017 Opening of Law Week speech by Bevan Warner

Victoria Legal Aid Managing Director Bevan Warner's Opening of Law Week address, Wednesday 10 May 2017, County Court of Victoria

Heading off to the County Court to be part of the acknowledgements to kick off Law Week. In thinking about what I would say, I found myself reflecting on patriotism, prejudice and the different historical trajectories that the United States and Australia have taken and their variable approach to human rights. Rights need to be balanced and community pressures to shift them in all sorts of different ways is what makes the law lively. Here is what I will say.

Telling the truth

When I was a kid, my dad said I should always tell the truth.

Of course, getting to the truth is a function of this Court – Victoria’s busiest trial court.

What does the evidence say happened? Who is to blame and what is their level of culpability?

What to do about the truth, is a function of the law. Remonstration, compensation, fine or harsh punishment?

In truth, all the possible permutations for solving a neighbourhood dispute, a commercial dispute or assigning criminal responsibility are a product of what we in the ‘legal industry’ call the ‘rule of law’.

This brings me to this evening’s gathering to launch and celebrate Law Week. Law Week is an important exercise in making the law accessible to everyday people – people who don’t work in the law – but whose lives are shaped by it – and whose attitudes and actions at the ballot box – help shape it. It is after all, the people’s law.

Indigenous recognition

Soon it will be National Reconciliation Week.

This year will mark 50 years since the 1967 referendum, where Australians cast their ballots in overwhelmingly numbers to recognise Aboriginal and Torres Strait Islander people in the Census, paving the way for voting rights in a land that was always theirs. It also marks 25 years since the historic 1992 Mabo High Court decision which rejected the great untruth or legal fiction of terra nullius.

The Wurundjerri people who I acknowledge this evening were certainly here first. That is a historical truth. They have always been here and they did not cede their land. They are part of a proud and living culture.

Constitutional recognition of this truth will not detract from our identity as a nation. A suitably framed treaty may offer even more tangible outcomes to address the impact of the fiction, that Australia was not inhabited when the First Fleet arrived. Both would strengthen a collective national pride in our living, cultural inheritance.

Patriotism

There has been a fair bit of national pride indeed patriotism on display in Australia, the United States and in France in recent weeks. In fact, Marine Le Pen described the choice before French voters as one between, ‘patriotism and globalism’. She lost, but commanded one-third of the popular or populist vote.

Closer to home, a friend and colleague returned just last week from his first trip to the United States. He went for a month, taking his kids.

I anticipated tales of Presidential excess, but he returned jubilant and inspired. Inspired by the country’s historical champions, giants like Martin Luther King and Abraham Lincoln. Heroes sprung from a nation with a history and response to internal conflict that is very different to ours.

Whatever you might think of the United States; its raw power, its race relations, its politics, its penchant for patriotism, the income inequality or their creativity and capacity for innovation – it is certainly a vivid and vibrant ‘rule of law’ democracy.

As I listened to my friend reflect on America’s history and heroes, I began to recognise the prejudices I carry about American politics, for example their gun control laws, and to re-think my own cultural narrative.

Reflections on America – A History of Struggle

Both America and Australia have Indigenous cultural ancestries dating back tens of thousands of years and both nations bear the enduring scars of colonialism. But our countries have had different historical trajectories.

The United States saw the arrival of a boatload of people fleeing religious persecution, while the First Fleet of convicts washed up on Australian shores as economic cast offs from a privileged order, unprepared to pay the costs of their imprisonment.

A decade before Australia became Britain’s penal dumping ground, the United States was cutting its ties with the Declaration and subsequent War of Independence. As the Third Fleet sailed into Sydney Cove, the United States was ratifying its Bill of Rights. And as our Constitutional drafters debated the machinery of representative democracy, already a generation of Americans had survived a civil war to end slavery and lived out the dream of Lincoln’s Emancipation Proclamation.

Australian identity developed in a very different way

In Australia, our history has generally lacked grand declarations of equality. Although the Eureka rebellion at Ballarat in 1854 coined a flag and the following phrase:

'we swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties'

we have generally failed to properly acknowledge the battles with Aboriginal and Torres Strait Islander people and as a nation we still find it difficult to examine our own dark past.

Of course, we have also done some excellent and good things. We were second (behind New Zealand) to provide women with the vote. But instead of enacting a Bill of Rights, our constitutional drafters were more concerned with the threat of revolution, omitting express rights to assemble, to protest and to criticise governments.

Perhaps it’s because of this history that Australia does not celebrate a human rights culture or ‘the rule of law’; that Australians so easily disparage and dismiss elites, including judges and lawyers as being out of touch and that we shy away from people who are expert in their field. In fact, the received wisdom from my dad about anyone foolish enough to label themselves expert, was this note of disparaging caution:

‘X is the unknown quantity and Spert is a drip under pressure’.

Why is it uniquely Australian that we don’t approve of people who get too big for their boots? What explains our tall poppy culture that needs to keep individuals in check – to not be too successful or become too outspoken. Why do we ask for evidence of what works but so easily ignore it?

I ask these questions because who we are is what we talk about and what we do.

Some politicians of late have taken to talk about Australian values, the most fashionable being free speech. Yet in the same breath, these same politicians criticise those among us, who dare to exercise that free speech, to share an unpopular opinion on Anzac Day?

Free speech enthusiasts often conjure up French enlightenment writer Voltaire as basis for their unrestrained free speech views, but selectively omit his assessment of prejudice – prejudices, Voltaire reminded us, ‘are what fools use for reason'.

Hypocrisy and blinding prejudice aside, events all around the world past, present and future, remind us that ‘rights’ underpinned by the ‘rule of law’ is not something that can be taken for granted. Rights can change, slip away and the balance can be altered with an authoritarian regime or through the slip of a legislative pen. Rights have been fought for, fought over and will fire everyday conversation as they should.

Victoria Legal Aid and our community legal centre and private practitioner partners agitate for fair laws, to be applied fairly, every day. We do this on behalf of our community but we recognise we must also take the community with us in these endeavours. This is why we are a proud supporter of Law Week.

Law Week – we need to grow our community

As a nation, we have much to be proud of – we have popular support for government health care and welfare. We have a strong propensity to help others, to volunteer – from surf lifesavers to firefighters and pro bono legal services. We have welcomed people from around the globe and helped them to make their home here. But these strengths are endangered by the prejudices inherent in all of us.

What we deny others diminishes us all.

Take Bail for instance. Yesterday Victoria’s Bail Laws were front page of the newspaper. The balance of presumptions around Bail is set to change. Although we can’t remand our way to perfect public safety we are poised to tilt the balance in that direction. There will be social and economic costs of some order. Of what order we are yet to see. What transpires will be a function of the law as drafted and the way in which these new laws are implemented and applied.

Law Week is our chance to band together in non-partisan ways to communicate broadly the virtues of our laws and the systems in which they are made and enforced. It is our chance to face uncomfortable truths about our cultural traditions and to maturely inform our future trajectory, while still celebrating past achievements.

Whether you have a penchant for flag waving or flag burning should not make a difference.

A vibrant legal fraternity exists in Victoria to support the rule of law from which the entire community benefits. Rights protections could be strengthened, but won’t be if the community is not informed or engaged enough to care.

For Law Week to fulfil its promise we must reach out and invite the community to care about everyone’s legal rights and how access to the promised protections of the law can make for better justice, every day.

It is on that basis that I commend Joh Kirby and her team at the Victoria Law Foundation on its line-up of activities this year.