A Fair Go Under the Law
ADDRESS AT A SERVICE FOR THE COMMENCEMENT
OF THE LAW TERM AT ST MICHAEL’S CATHEDRAL, WOLLONGONG
29 January 2002
A FAIR GO UNDER THE LAW
When I was asked to give an address at a service to mark the commencement of the Law Term I asked myself the question: what is the purpose of such services? Why has the legal profession developed a tradition of commencing its working year with religious services rather than with some sort of secular pomp and ceremony? Why do we all come to this Cathedral today?
Each of us has one or more good reasons, but can I suggest that, for many of us, one of those reasons is the felt need to affirm – to ourselves, as lawyers, and to the community in general – that the law, in its content and in its everyday application, is firmly founded on the ethical values which lie at the heart of all of the great religious traditions of civilized societies.
In today’s reading from the Gospel, we heard a story that has been familiar to most of us from childhood: the parable of the Good Samaritan. The moral of the story is, likewise, familiar: do unto others as you would have them do unto you. But, on closer examination, there is a great deal in this parable which is of especial significance to problems facing our society today and how we expect the law to deal with them.
You would have noticed that Jesus gave us this parable in response to a question from a lawyer. The lawyer had asked what was necessary to achieve eternal life. Jesus’ answer was: observe the law. The law is: love God and love your neighbour as you love yourself. Seemingly, very simple. The lawyer was abashed: he had asked a question to test Jesus, perhaps hoping to show him up as a fool or a heretic, but Jesus had said: you already know the answer.
But the lawyer, like all lawyers, did not like to appear a fool. He did not want to leave Jesus with the last word. He engaged in what we, as lawyers, often do. He quibbled over definitions. “Ah,” he said, “but what do you really mean by neighbour?”
And so Jesus gave the parable of the Good Samaritan as a legal definition of the word “neighbour” – a little bit longer than most definitions you’ll find in the Income Tax Assessment Act 1936, but a million times clearer.
There are five characters in the parable: the traveller who is attacked by robbers, the priest, the Levite, the Samaritan and the innkeeper. We are told a little bit about four of the characters and Jesus’ audience would have known a lot more about them as familiar stereotypes. The priest is a person of high position in society, educated in the law, a pillar of the Establishment. One would expect him to behave in accordance with recognised ethical and legal standards of conduct. The Levite is a subordinate official of the Temple in Jerusalem, also a person of position in the community. One would expect him to behave in a manner which is a cut above the standards of the ordinary uneducated person. The innkeeper would have been the type of man most innkeepers are today. Then there is the Samaritan.
The Jews despised the Samaritans as heretics and the Samaritans returned the favour with interest. Even worse, this particular Samaritan was obviously a trader: he had a donkey; he was well provided for the journey, having wine and oil; he had money for the innkeeper and promised to pay any additional expenses for the care of the wounded man on his return. Right-thinking Jews at that time regarded traders as cheating scoundrels and Samaritans were especially known as successful traders. As soon as Jesus mentioned a Samaritan, and a trader at that, his audience, in a knee-jerk reaction of prejudice, would have conjured up a stereotype picture of a shifty-looking man, with glittering, rapacious eyes, and of swarthy appearance. A stereotype picture often evoked by prejudice in our own community today when the media refers to “a person of Middle Eastern appearance”.
But what are we told about the man who is attacked by robbers? Absolutely nothing at all: Jesus says only: “a man was going down from Jerusalem to Jericho”. The word the gospel writer uses for ‘man’ is the Greek word ‘andros’, which equally means ‘human being’ or ‘person’. The text can be read: ‘a person was going down to Jericho’. Whether that person was a Jew, a Samaritan, a Roman, a rich man, a poor woman, a good person or a bad person does not matter. The law, Jesus was saying, was to be applied indiscriminately to every human being.
And what was that law? “Love your neighbour”, that is, every person, “as yourself”. Clearly, “love” is not intended to mean a romantic attraction. Most of us would not say that we feel that way about ourselves. What we do feel about ourselves is that we are, each one of us, worthy of respect, that we have a basic human dignity and that we are entitled, at the very least, to “a fair go”. And in particular, we feel that, whether rich or poor, whether influential or without influence, the law should be applied to us without discrimination. That equality of respect and treatment is the law to which Jesus is telling us every human being is entitled.
The character of a society is expressed in the laws which it makes and in the way in which that society applies and enforces those laws. The sense of ‘fair go’ which is characteristic of Australian society is expressed in laws which discourage discrimination on the ground of race, religion and sexual identity and in laws which encourage equal opportunity for all.
But a society behaves just like the individuals who constitute it. We are all capable of acting inconsistently. We can rush to save our neighbour’s house from the bushfire, selflessly risking our own safety without a second thought, and yet a week later, when the neighbour’s New Year’s Eve party goes past midnight, we can call the police to stop what we regard as an intolerable interference with our peace and quiet.
And so it is with the laws which we, as a society, have developed to express our sense of justice and ‘a fair go’. They can be there on the statute books, all right, but sometimes fear, intolerance or lack of understanding of the facts lead us, as a society, to deny those laws effective operation.
The issue which has most tested the character of Australian society in the last year is that of the refugees, the so-called boat people. As we all know, for many years Australia has had laws which determine the status of those seeking asylum and whether or not they are entitled to remain in this country. The Commonwealth Migration Act, the 1951 Convention Relating to the Status of Refugees, and a multitude of ancillary and facultative legislation and regulation provide the legal machinery whereby these decisions can be made. The vast majority of these laws were in existence long before the so-called “Tampa crisis” became an election issue last year. The laws were there on Australia’s statute books because this country agreed with many other countries that these laws were a fair and humane response to the plight of refugees as well as being fair in the interest of the country concerned. In other words, Australia perceived these laws as giving both refugees and the people of Australia ‘a fair go’.
But when ships and small vessels, often unseaworthy and dangerously overloaded with people seeking asylum, are forced out of Australian waters so that those on board will not be able to invoke the laws of Australia to determine whether or not their claims for refugee status are genuine and whether or not Australia must perform the legal obligations which it has undertaken under the international Convention on Refugees, then we must seriously ask ourselves what is happening to the character of our society. We have laws on the statute books to give both refugees and Australians a ‘fair go’ but we make sure that the refugees cannot receive the benefit of those laws. We are condoning the principle that the law can apply to those we like or approve but that it is all right to deny the law to those whom we dislike.
Well, some might say, why shouldn’t a society deny the law to those it dislikes? Obviously, there are quite a few people who are crooks, cheats, bludgers, queue-jumpers, trouble-makers or otherwise far more trouble to the rest of us than they’re worth. Why should we allow them access to the legal system when they’ll only abuse it, using clever lawyers to get their own way?
There are quite a few answers to that question. A Christian would be able to say, quite simply, that Christ teaches us that every person should have the benefit of the law because each of us is equally important in God’s sight.
A lawyer would appeal to self-interest. If the law is only for the benefit and protection of those in our society who are liked and approved, who and what will protect us if we have the misfortune to become disliked and the mob turns against us?
The lawyer might also answer: is our system of justice really so inadequate that it cannot tell the good from the bad and the genuine from the false? In other words, whether it be an asylum seeker’s claim for refugee status or anybody else’s claim to a legal right, do we not trust our own system to make a correct and fair decision? Why cannot we allow the law to resolve the problem, as it is designed to do?
If the truth is our society fears that if the law is allowed to apply to these asylum seekers, many will be permitted to stay and we just don’t want them here, then let us be frank about it. Let us say openly to the rest of the world: we are going to change the law; Australia is no longer going to be bound by international conventions or treaties on refugees. But let us not, for the sake of our own self-respect, pay lip service to the principle that our laws apply to all indiscriminately while we remove from the jurisdiction of our courts those who appeal to our laws for protection and while we detain others like criminals for months and sometimes years without applying the law to decide their status as refugees. That lip service to principle is the sort of hypocrisy for which Jesus condemned the priest and the Levite who, rather than confront the issue whether to apply the law ‘love your neighbour’ to the wounded traveller in the ditch, crossed over to the other side of the road.
So I return to the question with which I started: what are we doing here today?
May I suggest that, in coming to this service to celebrate the commencement of the Law year and in listening once again to the parable of the Good Samaritan, we reaffirm our commitment as Christians, as lawyers and as Australians, to that fundamental principle of human dignity which the law embodies and which Christ teaches: that every person is entitled to a fair go under the law.
Justice George Palmer
Supreme Court of New South Wales
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