Wednesday 3rd February, 2022
Legal Laneway Breakfast Address
Victoria Law Foundation
Law and Conscience: Anchoring Our Humanity in Our Professions
Thankyou to the Victoria Law Foundation for the invitation to speak with you all and to your esteemed speakers.
I’ve been encouraged by this morning’s focus on women’s rights, gender equality and representation, sexual harassment and am pleased to see that as a profession and Foundation, you are collectively giving what the brilliant, strong and transformative young Australian, Grace Tame might call a ‘side-eye’ to gender discrimination.
2021 was so difficult in many ways but also brought incredible hope and I would say cultural progress through the strength of so many extraordinary Australian women, Grace foremost.
How magnificent it was to see a principled young woman demonstrate such authenticity and truth-telling in the face of power.
I hope that you are inspired by Grace, I certainly am, and bringing our full selves to work and making choices every day that refuse to do harm and demonstrate strength in the face of institutional power are the subject of my comments this morning.
I am joining you from the land of the Gadigal People of the Eora Nation in NSW, otherwise known as Wiradjuri, acknowledge that this land was never ceded, pay respects to elders past and present and consider the Uluru statement the manifestation of Indigenous Australia’s right to self-determination under the Declaration on the Rights of Indigenous Peoples.[1]
I hope you all support it individually and institutionally.
In the short time we have together, I am going to remind you of the awesome power in your hands, appeal to you to use your terribly powerful skills to lift people up, protect them and ensure as far as possible that harm comes to no-one and challenge you to interrogate your own work and that of the entire profession, and I’ll provide a few important examples.
My own legal education was nothing less than arduous.
It took several attempts over many decades, from 19 to 50 years of age punctuated by a professional sport and broadcasting career. The application of logic and legal reasoning, understanding of precedent and legal historical development was so powerful, however because it showed me the foundational power that lawyers have to shape all aspects of society, the criticality of the rule of law and that law is entirely neutral.
It is the practitioners, the writers and defenders of laws who are not neutral.
Laws can be written and applied for better, and worse.
Environmental law, transnational taxation and tax havens, laws that discriminate, that incarcerate kids as young as 10, that enable constraints and hoods on Indigenous kids, that stole a generation, that created Robo-debt are all written, by someone.
The world is scampering to redress climate action and the belching of emissions, the great Pacific garbage patch, deforestation, all of which are enabled by laws. Someone had to write the laws for indefinite detention of innocent refugees, I’d imagine while justifying to themselves how they were ‘just doing their job’.
But your profession changes lives, for the better, and worse and we’re all accountable for the actions we take and consequences we create.
I’d like to encourage you to give more thought and take responsibility for the laws that you write or defend and contend that conscience must play a part in all our professional lives. We are people first, professional actors second and this is too often forgotten by us all.
And that you place a strong sense of human equality, compassion and solidarity with others at the centre of all your work. That we all do, in fact.
If it hurts someone, some family, some community or minority and offends our good conscience, shouldn’t we refrain?
Equally, of course, we now have marriage equality, women’s reproductive rights, anti-discrimination, climate justice cases all around the world, assisted dying laws, progress on treaty here in Victoria and many other wonderful examples of positive change.
At a time in history when every sector of society is being scrutinised for the social impact it creates, whether on people or the planet, I know there are many of you who are interrogating your own profession, your own employers, your own work to ensure that it sits comfortably within your sense of self.
In my field, sportspeople are considering their human rights impact and whether we should look away from the abuse of Uyghurs in China during the Olympic Games or migrant workers in Qatar building the FIFA World Cup for which the Socceroos are aiming to qualify.
Fossil fuel company employees are contemplating whether they can carry on separating their personal views and good conscience from their professional work, and a new generation of Australians are bringing their full selves including their compassion to their daily work environment, refusing to separate who they are, from what they do.
‘Do no harm’ is as good a principle as any to underpin the amazing work that you do and extraordinary power that you possess.
Martin Luther King talked about the moral imperative to disobey unjust laws in correspondence to fellow clergymen in 1963:
I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for the law.[2]
Can I suggest that the same might apply to your work, and to all our lives?
That by refusing to write, apply or perhaps even obey laws that offend a sense of human solidarity, that patently hurt, demonise or marginalise others, contribute to carbon emissions, global warming or damage the planet, you are ‘in reality expressing the very highest respect for the law?’
I will of course not lecture you on legal philosophy as you are at the interface between theory and practice, but I would like you to know from personal experience and from the mouths of my loved refugee friends, like Kurdish artists, poets and singers Mostafar Azimitabar and Farhad Bandesh who each lost 8 years of their young lives to Australia’s offshore prison regime, their mental and physical health, their connection to family, friends that perished, that there is a very real human cost to many of Australia’s present laws.
As many of you will know, these days I spend much time advocating for various social causes including the rights of refugees and asylum seekers and against the deadly policy that has cost innocent lives, whether extinguished, or broken from both inside and out.
There are of course still 33 men from Manus Island locked interminably in the Park Hotel in Carlton in their 9th year of detention, all of whom could sorely do with your advocacy and your skill.
Any law that tortures innocent people, or at a minimum constitutes cruel, degrading and inhuman treatment and 9 years detention certainly qualifies for that definition as judged by the International Criminal Court[3] is an offence to human conscience and yet it is written and enforced by humans against all good conscience.
‘I was just doing my job’ is not going to wash with future generations facing rising seas and temperatures, wild weather and mass human displacement. Our primary job as people, surely, is to put the wellbeing of all first, not to do harm, and to make a positive contribution in everything we do, not only to wash our guilt away with Foundations, donations and endowments.
Covid at least taught us that for all the edifice and infrastructure of society, all the institutions and hierarchies, we need each other, if only to strengthen the social chain between us that, if broken, directly affects us all.
That our actions have consequences which are often unintended, often entirely unseen and that our responsibility as social actors, not individual glory hunters, is to do as much good, and as little harm as humanly possible and this often takes courageous decisions about how and where we expend our capabilities.
My last few years has seen great personal and professional change brought on largely by a determination to free innocent people whose only crime was to flee persecution at a time in Australian political history when their value as political pawns is at an all-time high. There is a professional cost, but the alternative cost to one’s sense of human solidarity and what we might call a soul is far, far greater.
I have resolved to finish my working life, and life, with a sense that I did what I could for those in need, at whatever cost is necessary. The privilege afforded me by sport provides the platform and obligates me to expend my social capital for others and I hope you will feel the same way.
Many of you have immense professional and social capital that, if used to encourage improvement in Australia’s treatment of Indigenous kids, refugees, the impoverished can make tremendous positive impact.
You, and I, we all just need value the impact on people more than our career. It is difficult to say because we are so deeply conditioned and incentivised otherwise and far more difficult to bring to life but I assure you it is much, much more fulfilling.
The refugee’s lives are measured in votes, not breaths, and I have committed to do whatever I can not only to free them from their political purgatory, but to encourage us all to see others as equals, to look past colour and gender, religion and ethnicity to acknowledge the basic rule of life that if we mistreat and torture innocent people, it is us that are the victims as we lose our very sense of compassion, empathy and humanity.
Each time we treat others as less than human, in the case of refugees as nothing more than animals, we lose a piece of our own inner self and, collectively our national soul. Step by step, policy by policy, amendment by amendment we descend until nothing is impossible.
Not locking up an innocent family from Biloela who have the right to legal appeal, not forcing incredible self-harm from people who threw themselves on our mercy, not deaths, not self immolations, nor criminalising Indian-Australians desperate for the safety of their own land.
Nothing becomes impossible.
But so, too can we list up our higher selves, the better sense of our national identity by committing to do better, not to demonise people, to speak and act out against human rights abuse and the intent to implement laws that dehumanise people. And in that critically important pursuit, you all hold the greatest power in your professional capacity, collective solidarity and willingness to uphold standards that politicians cynically destroy.
Law is neutral, but laws are not neutral.
They are written, prosecuted, defended for better, and worse.
As we contemplate our personal contributions in 2022, please keep in mind the foundational importance of human dignity, basic standards of treatment for all and that a country is defined not by its greatest achievements, not it’s sporting conquests or bravery on the battlefield, but by who it leaves behind, doesn’t care about, disregards, demonises and marginalises.
We are defined by our lowest common denominator, not highest. By those without a voice.
Australia must be better in very many respects, all of which are touched by, if not predicated on the law.
You make a very real difference every, single day in your profession.
For better, and worse.
The most noble of professions, or most dangerous to the vulnerable, voiceless, marginalised.
It’s up to you.
Please bring your conscience and your sense of shared humanity to your profession, every day.
Thankyou.
Craig Foster AM
[1] https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
[2] https://www.jfklibrary.org/sites/default/files/2020-04/Birmingham%20Letter%20Excerpts%20for%20Activity.pdf.
[3] https://ecre.org/australias-offshore-detention-regime-in-breach-of-international-law/#:~:text=In%20a%20letter%2C%20the%20International,not%20prosecute%20the%20Australian%20government.