Alternative Law Journal
ANDREA DURBACH[*] argues passionately that the insidious trend towards undermining the separation of powers and public confidence in notions of government accountability and transparency presents critical challenges for human rights advocacy and activism.
There is something deliberately or, at best, indifferently awry within the province of justice when a Federal Court judge and the Federal Attorney General respond to the plight of human beings fleeing repression and persecution in search of a safe life, with two diametrically opposed assertions about the role of lawyers in protecting rights.
In the oft-quoted dictum from the judgment of the Full Federal Court, despite the findings against the applicant refugees, Justice Robert French said:
The counsel and solicitors acting in the interests of the [asylum-seekers] in this case … have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the executive accountable for the lawfulness of its actions. In so doing … they have served the rule of law and so the whole community.
The Federal Attorney General at the time, the Hon Daryl Williams MP, however, chose to characterise the provision of appropriate legal assistance to the desperate Tampa refugees, many of whom are now lawful and productive citizens of New Zealand, as ‘promoting unlawful activity’.
While the view of the former Attorney General was, with respect, a foolish and unsupportable allegation, it nonetheless served a very important function which is dangerously at odds with the role and responsibility accorded to the highest legal officer of the land: that of undermining the legitimacy of lawyers as agents of justice, as potential conduits to rights. It was a function executed again one year later with the peddling of base allegations and innuendo about the personal conduct of one of our most eminent High Court judges and human rights partisans. The Attorney General was reticent in coming to the defence of Justice Michael Kirby or the High Court and appeared content, by his silence, to be complicit with the Prime Minister and Senator Heffernan in maintaining a slanderous attack on the integrity of a judge and, by implication, the institution he serves. The stance that the Hon Daryl Williams cowardly adopted was curiously in contrast to the contents and tenor of an article he published a few years before in the 1999 University of Technology Sydney Law Review in which he wrote:
We must bear in mind that there is a great deal at stake for our community if public confidence in the judiciary is unnecessarily eroded by sensational, personalized attacks.
Our remarkably stable democracy can be attributed in no small part to the community’s acceptance of the legitimacy of our courts to maintain the balance between the executive, the legislature and the community.
It is that balance between the executive, the legislature and the community — and sitting increasingly uneasily in-between — the judiciary, which is of gnawing concern to me when I approach the topic of ‘Human Rights Advocacy and Activism’. There was a time in this land (and indeed, in the land of the great stars and stripes power which we so slavishly ape) — and every now and then, that time shows its slim hand — when democratic leaders trumpeted the judiciary as the arm of government which, in the words of Justice French, could be confidently invoked ‘to hold the executive accountable for the lawfulness of its actions’; when individuals and organisations committed to the protection and advancement of rights, and to checking arbitrary, oppressive and unlawful state power, might look to the judiciary — as they might to that dinosaur, a robust and effective opposition — as offering some protection to the citizen ‘against the leviathan of the modern state’ (in the words of Justice Deane in the 1983 High Court decision, Baker v Campbell).
‘Judicial review of the lawfulness of action by officers of the Commonwealth was regarded at Federation’, reminded Chief Justice Gleeson in a speech marking the anniversary of the first sitting of the High Court of Australia, ‘as an essential protection of the rights of citizens and the States’. Such reminding was indeed required, as only a year earlier, when the courts resisted a blow to that protection consequent upon the government purporting to oust their power to review immigration decisions post-Tampa, our current Attorney General, the Hon Phillip Ruddock MP, recklessly accused the courts of ‘finding a variety of ways and means to deal themselves back into the review game’ despite, protested the Attorney, ‘the High Court of Parliament [legislating that] decisions of the [Refugee Review] Tribunal should be final and conclusive’.
Concerned that ‘members of the public might see the Minister’s statements as an attempt to bring pressure on the Court’ in relation to Federal Court appeal proceedings to which the Attorney General was a party at the time, Chief Justice Michael Black invited Mr Ruddock to offer an explanation for his vocal observations. Through the Commonwealth Solicitor General, the Attorney General reassured the Court that he respected the fundamental importance of the separation of powers. ‘It would have been more revealing to learn what he understood by that’, asserted an editorial of The Age newspaper in relation the proceedings:
His [the Minister’s] defence that [his remarks] had been misconstrued and were directed at the Federal Opposition, not the court, was lame. Mr Ruddock and a disturbing number of his colleagues have a history of attacking judges whose rulings frustrate them — in areas ranging from immigration to native title to industrial relations — and the Federal Court, in hinting at contempt proceedings, was signalling a broader concern. Indeed, the Attorney General’s reluctance or inability to defend the courts and restrain his colleagues may have spurred some judges into intemperate responses.
‘Caught in the crossfire’, said The Age, ‘is public confidence in the institutions of government.’ Maintaining the integrity of these institutions was a concern raised by a High Court judge when single women won the right to in vitro fertilisation in the Federal Court and the Federal Attorney General gave the Catholic Bishops’ Conference a fiat in subsequent High Court proceedings which sought to overturn the Federal Court decision. In response, Justice William Gummow of the High Court remarked:
The Attorney General seems to take the view that it is part of his role to undermine the structure of the federal judicature.
It is an inevitable disappointment of democracy that decisions made by government and the judiciary can never please all the people — even some of the time. Indeed, it is a feature of a mature and strong democracy that decisions of the courts will not accord with government interests. In a documentary called ‘Law and Freedom’ about the first few years of the new South African Constitutional Court, which interprets the South African Bill of Rights, President Mandela is interviewed in relation to an early decision of the Court in mid-1995 which struck down one of his initial proclamations as the country’s first democratically elected leader. ‘The Constitutional Court’, said President Mandela, ‘is the final arbiter on matters of this nature. They have pronounced themselves very clearly. And I will defend any decision which they make whether (or not) it is against my own interests, against my own wishes.’
It is often hard as lawyers representing clients in need of redress and protection from the state, to explain to them why the courts have not found in their favour. Hard enough when a court has reached that decision in accordance with the law, and demonstrated substantive and procedural fairness. It is a much tougher task to explain judicial processes and outcomes and instil confidence in a legal system when government leaders, in particular, the highest judicial officer amongst them, show a cavalier disdain at best, and contempt at worst, for the very institutions — structural and procedural — which offer some protection to those within the reach of the state. It is a dangerous and short-sighted strategy on their part — albeit somewhat infectious — which erodes the legitimacy of law as the independent protector of rights and freedoms in the eyes of those who seek both its sword and its shield. And it is a strategy which sweeps rising tides of supporters, as Clive Hamilton’s work so acutely demonstrates, when government misleads and deceives, equating self-interest with national interest, parading injustice for the few as opportunity for the many and trivialising respect for ethical, moral and legal values and principles in honour of cynicism.
This is the backdrop against which human rights advocacy and activism in contemporary Australia must fight to find its voice. A backdrop where those who are entitled to declare and claim their rights are hard-pressed to sustain a confidence in the institutions charged with their enforcement. And where those charged with the enforcement of rights, confront an erosion of their powers and a belittling of their role. As a lawyer convinced that the struggle for rights can effectively be fought through the use of law, my concern is that we not only resist incursions on substantive human rights through our advocacy and our activism, but that we resist incursions on the power and independence of the institutions through which those rights are declared, interpreted and enforced. This is not only the imperative of Presidents of Bar Associations and the International Commission of Jurists, but of lawyers across all disciplines, judges and civil society.
As human rights lawyers, it is our duty, through the cases that we bring, to demonstrate to our judges the impact of dispassionate conduct and intrusive laws on ordinary lives. It is also our duty to educate civil society about the impact on their lives of the erosion of the separation of powers and the diminution of government accountability and transparency, of the absence of participation in government decision-making and the narrowing of judicial power.
Having declared my belief in the practice of law as an effective means of securing rights, I want to conclude by saying that my work as a lawyer both in South Africa and in Australia, has taught me that for change to come, for rights to take hold, one must learn to ride the waves, to pull back from the courts as sites of change when political forces fear the power of courts and undermine their role; and when judges cling cautiously to narrow interpretations or rejections of rights on technical grounds. Charles Epp, in his study of rights revolutions in America, Canada, India and the United Kingdom, argues that successful rights revolutions depend as much on ‘support structures for legal mobilisation’ (such as human rights legal resource centres and community legal centres) ‘as they do on variables such as favourable constitutional conditions, a sympathetic judiciary, and public rights consciousness’. It is during so-called ‘court down-time’ when the work of support structures for legal mobilisation — the preparatory and complementary work with civil society in nurturing ideas, the careful gathering of testimony, building cross-sectoral alliances, crafting policies and campaigns and conceptualising cases — can be critical to the success of the next wave of judicial endeavour.
‘Compassion’, wrote Susan Sontag in her book, Regarding the Pain of Others, ‘is an unstable emotion. It needs to be translated into action, or it withers.’ It is a steady translation of compassion into action, a commitment to the enduring value of institutions and a determined belief in humanity’s capacity to change — in the face of crude attempts to denigrate rights and human dignity — which ultimately create the space for rights to break through and for integrity to triumph.
[*] ANDREA DURBACH is Director of the Australian Human Rights Centre and an Associate Professor in the Faculty of Law, University of New South Wales.
This Brief was first given as a speech to the ‘Human Rights Advocacy and Activism’ seminar jointly convened by the Human Rights Law Resource Centre Ltd and the Public Interest Law Clearing House (Vic) Inc on 25 May 2006 in Melbourne.
© 2006 Andrea Durbach
 Ruddock v Vadarlis  FCA 1329; (2001) 110 FCR 491 .
 David Marr and Marian Wilkinson, Dark Victory (2003) 155.
 Statement by the Judicial Conference of Australia (signed by the Honourable Justice Simon Sheller (Chairman)), ‘The Honourable Justice Michael Kirby AC CMG’ (April 2002) <http://www.jca.asn.au/docs/kirby.html> 26 July 2006.
 Daryl Williams, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 7 University of Technology Sydney Law Review 25. See also Daryl Williams, ‘Judicial Independence and the High Court’ (1998) 27 University of Western Australia Law Review 140.
 (1983) 153 CLR 52, 120.
 The Honourable Chief Justice Murray Gleeson, Banco Court, Supreme Court of Victoria, 6 October 2003 <http://www.hcourt.gov.au/speeches/cj/cj_6oct.html> at 26 July 2006.
 Quoted in Frank Brennan SJ AO, ‘The Limits of Judicial Review in Migration Decisions: An International Perspective’ (Paper presented at the Migration Institute of Australia Limited Victoria State Conference, Melbourne, 12 November 2003) <http://www.uniya.org/pdf/brennan_12nov03.pdf> at 26 July 2006, 5.
 Ibid 6, quoting ‘Text of Statement made by Chief Justice Black of The Federal Court of Australia’, NAAV of 2001 v MIMIA (N265 of 2002), NABE of 2001 v MIMIA (N282 of 2002), Ratumaiwai v MIMIA (N399 of 2002), Turcan v MIMIA (V225 of 2002), MIMIA v Wang (S84 of 2002), 3 June 2002.
 ‘Court contest is far from settled’, The Age (Melbourne), 6 June 2002, 6.
 Re McBain; Ex parte Australian Catholic Bishops Conference  HCA 16; (2002) 209 CLR 372.
 David Marr, ‘The Law according to Poor Daryl, QC’, Sydney Morning Herald (Sydney), 19 January 2002.
 Clive Hamilton, ‘What’s Left? The Death of Social Democracy’ (2006) 21 Quarterly Essay 1.
 Charles R Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (1998).
 Geoff Budlender, ‘Public Interest Law: The South African Experience’ (Paper presented to the FLAC Conference, Public Interest Law in Ireland — the Reality and the Potential, Dublin, 6 October 2005) <http://www.flac.ie/news/GBudlender_FLAC_061005> at 26 July 2006.
 Susan Sontag, Regarding the Pain of Others (2003).