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“Religion and the Rule of Law in These Troubled Times” Opening Service for the Law Year, St Paul's Cathedral Melbourne, 4 February 2002.

Isaiah 43:16-21
Psalm 119: 57-64
Mt 5:21-26

It is a fine tradition that we gather to pray at the commencement of the law year. But public manifestations of faith and religious convictions are becoming more difficult for many Australians. I have just returned from 18 months work in East Timor where public prayer and acknowledged dependence on God is common place in the midst of such suffering and loss. I well remember the mass in the Dili Cathedral in thanksgiving for the work of INTERFET. Bishop Belo was presiding. At the end of the mass, Major General Cosgrove spoke. He recalled his first visit to the cathedral three months earlier when he was so moved by the singing that he realised two things: first, the people of East Timor had not abandoned their God despite everything that had happened. Second, God had not abandoned the people of East Timor. As he spoke, I was certain that despite the presence of the usual media scrum, not one word of this speech would be reported back in
Australia. It was unimaginable that an Australian solider would give such a speech in Australia. If he were an American general, we would expect it. Here in Australia, the public silence about things spiritual does not mean that spirituality is not present animating and inspiring the moral actors of our society including lawmakers (whether they be politicians or judges) and legal practitioners. Practised both in the art of distinguishing law, policy, and morality, and in the discipline of separating our roles from our personal dispositions, we are delighted to join the psalmist this morning in praying together and publicly: "Though the cords of the wicked ensnare me, I do not forget thy laws. I am a companion of all who fear thee, of those who keep thy precepts." (Ps 119:61,64) Let us reflect on religion and the rule of law in these troubled times.

When admitted as a barrister and solicitor of the Supreme Court of Victoria in 1978, my affidavit stated that I was resident at Campion College, Kew. I mused at the time that Edmund Campion, hung drawn and quartered at Tyburn on 1 December 1581, 18 months after his return to England when he had presented to the Dover port authorities as a jewellery merchant, would have marvelled at how things had changed. Before Campion had fled to the continent seeking ordination as a Catholic priest, he had been ordained a
deacon in the Established Church and had even given the speech of welcome at Oxford when Queen Elizabeth had visited in 1566. I can only presume that he would join with all of us in taking delight that a Jesuit now be invited to preach in the Anglican cathedral for the opening of the law year. We lawyers of diverse religious traditions and none need to concede that Campion had no reason to think well of the legal system which had wrongly convicted him of conspiracy against the life of the Queen. His dying declaration was, "If you esteem my religion treason, then I am guilty; as for other treason I never committed any. God is my judge." Though no lawyer now would defend the legal processes applied by the State to the person of Campion and his ilk, we could still debate the politics and high policy of the time that placed the sovereignty of the state and the popular will of the people (or at least the populist sentiment of the majority or the personal preferences of the powerful) above the rights and dignity of the one who happened to be different, the "Other" in their midst.

Nowadays, I have cause to step into chambers or a legal office only a few times a year. The response to the usual greeting, "How are you?" is inevitably, "Busy, very busy. Yes I am well." Lawyers are the only people I know who start any description of their professional and personal life with a universal declaration of "busyness". It is usually a sign of how all embracing ones profession is in ones life. Sometimes we know it can also be a polite and nervous acknowledgment of the uncertainty and risk of practising a profession which is the clients' last resort in difficult economic times, and of the confidential demands of a profession dedicated to resolving conflicts which cannot be the content of superficial social
discourse. No matter what the initial disposition of our clients or the availability of public funds, we ought to have a professional commitment to treating litigation as a last resort, urging our clients "first be reconciled to your brotherŠ. Make friends quickly with your accuser, while you are going with him to court, lest your accuser hand you over to the
judge
". (Mt 5:25)

As lawyers, we are privileged to be able to view any conflict from all sides. As reconcilers, we seek justice, truth, mercy and love. Jesus' articulation of the new law which we have heard in this morning's gospel from the Sermon on the Mount is an impossible prescription but an appealing ideal. Whichever side of the bench we are on, which ever side of the bar
table, we have all been angry with one of our peers at some time, and we have definitely expleted, "You fool" if not in open court, then when we return to the camaraderie of chambers. This morning we gather in this cathedral, and like the Jews in the Matthean Christian community who still came to the temple to bring their gifts to the altar, we must pause and remember not those against whom we have a grievance, gripe or grudge but
those who have a grievance, gripe or grudge against us. To commence this law year with a pure heart and an open mind we should attempt to be reconciled to the one who feels wronged by us. This is a big ask. It is so much more than the old law and the established norms of social discourse and propriety. It is the new law of Jesus put before us so that we might truly bring reconciliation where there has been none and to make things new. "So if you are offering your gift at the altar, and there remember that your brother has something against you, leave your gift there before the altar and go; first be reconciled to your brother, and then come and offer your gift." (Mt 5:23-24)

As lawyers in a democratic society espousing a commitment to the rule of law, we have a role not only as personal reconcilers but as the architects of a legal system which can bring reconciliation and justice to all those who are subject to the jurisdiction. Members of our profession must be heard in the public forum when political conflicts relate to the liberty, dignity and rights of the person against the power of the State. To raise ones voice is not necessarily to seek membership of the chattering classes or of any other elite. Difference of opinion from commentators who read the public mood can assist society's ultimate quest for reconciliation and justice for all persons. Action such as Mr Eric Vadarlis's litigation in defence of the Tampa rescuees was as the Federal Court so rightly said a matter of high public importance, raising questions concerning the liberty of persons who were unable to take action on their own behalf to determine their rights. It was not as the State proposed an attempted, unwarranted interference with the executive power central to Australia's sovereignty as a nation. There are times when lawyers inspired by the law of the Old and
New Testaments are called to put themselves on the line publicly even in the midst of political controversy.

The consoling and optimistic Deutero-Isaiah directs his words to the Chosen People in exile. They are to be liberated by Cyrus, a foreign king. In their isolated detention in Babylon, a foreign place, they constantly hark back for the consolation of the Exodus when Yahweh made a path for them through the waters and then drowned their enemies in the sea. But they are chastised: "Remember not the former things, nor consider the things of old.
Behold I am doing a new thing; now it springs forth, do you not perceive it? I will make a way in the wilderness and rivers in the desert
." (Isaiah 43:19)

Having recently returned to Australia, I happened to be in the Woomera Detention Centre last week when the government's Immigration Detention Advisory Group visited and met with hunger strikers. They were the first persons wearing the government mantle who were perceived to be listening and understanding after months of silence, absence, delay, and public abuse of these people as criminals during an emotive election campaign. They acknowledged that the majority of Hazara inmates fear persecution back home no matter who is in government. These asylum seekers want fair, quick and transparent determinations because they are confident that any fair-minded person would accept that they are refugees. There was I contemplating the words chosen for today's service in this splendid cathedral in the heart of Melbourne: "I give water in the wilderness and rivers in the desert, to give drink to my chosen people". (Isaiah 43:20)

I am amongst a minority of Australians who presently believe that a blanket detention policy and the Pacific solution are morally reprehensible as well as being impractical in the long term. I live in a democracy where that is not the prevailing public opinion nor the moral assessment of our lawmakers. Given that detention is an integral component of the
government's present border protection policy, it is essential that the time delays, uncertainties, and psychological trauma exacerbated by the events of September 11 and the federal election now be put behind us as quickly as possible. Because of those events, every inmate in Woomera (including the bona fide refugees) will have spent an additional five months in detention - five months of despairing isolation which drove people to sew their lips so that they might be heard. They are now to be heard. Surely it is time for government and the community to respond with a renewed commitment to a determination process which is "fair, just, economical, informal and quick". Now that the election is over, surely it is time for government and all major political parties to concede that asylum seekers are not criminals and that their detention should not be any more dehumanising, isolating or remote than the detention imposed upon convicted criminals.

It will not be too long before protracted detention of children in the heated isolation of Woomera (our Siberia) will be seen to be a moral obscenity especially when some of them have fathers living here in Melbourne, happy to resume their parenting responsibility. If the media were allowed inside the one kilometre fence to show ordinary Australians the sight of women with little children behind razor wire in the middle of the desert, many Australians would surmise that there must be a better way. In helping the community set its moral compass, we lawyers should continue to draw attention to the jurisprudence of other countries which are not so susceptible to our Australian isolation and hysteria on these matters. The UK Court of Appeal last October had to consider the lawfulness of detention
of Kurdish asylum seekers for more than ten days while their applications were processed. The Court of Appeal noted the UK government's policy decision "that, in the absence of special circumstances, it is not reasonable to detain an asylum seeker for longer than about a week, but that a short period of detention can be justified where this will enable
speedy determination of his or her application for leave to enter
." Though conceding that "the vast majority of those seeking asylum are aliens who are not in a position to make good their entitlement to be treated as refugees", the Court of Appeal went on to state its unanimously held belief "that most right thinking people would find it objectionable that such
persons should be detained for a period of any significant length of time while their applications are considered, unless there is risk of their absconding or committing other misbehaviour." Let's pray for those lawyers keeping watch at Woomera, Curtin and Port Hedland.

Praying for God's help and guidance at the commencement of this law year, may the Australian legal profession be able to assist us in the resolution of conflicts which cloud Isaiah's vision of water for those in the wilderness and rivers in the desert. May we be the professional exemplars, leaving our gift here at the altar and daily acting in the hope that before we return to this place next year we might be able to be reconciled to our brother or sister, making friends with our accusers (Mt 5:25). What will distinguish us in this year of professional service is not the achievement but the hope which informs our efforts to provide a service to the nation - justice and reconciliation for all, without fear or favour, whether they be one of us or "the other" in whom we see reflected something of ourselves
and of God. "The earth, O Lord, is full of thy steadfast love; teach us thy statutes."
(Ps 119:64)