Stephen Loosley

Special Counsel, Minter Ellison Lawyers
BA(Hons) (UNSW), LLB(Hons) (UTS), FAICD

Stephen Loosley addressed graduates from the Faculty of Law at the Great Hall, City campus, Monday 4 May 2009, 10.30am.

About the speaker

Stephen Loosley is Special Counsel with Minter Ellison, Lawyers. Stephen is an alumnus of UTS.

Stephen was the General Secretary of the NSW branch of the Australian Labor Party for the period 1983 to 1990 prior to being elected to the Australian Senate in 1990. During his term, he served as Chairman of the Joint Standing Committee on Foreign Affairs. He also served a term as Australian Labour Party National President for the years 1991 to 1992.

Currently, Stephen is the Chairman of the Committee for Sydney; chairs the Australian Strategic Policy Institute in Canberra; and is a member of the Board of the European-Australian Business Council.

In addition, Stephen also serves on the boards of:

• the Partnership Executive of the National Rugby League;
• Thales Australia;
• the Australian-American Leadership Dialogue; and
• Sydney Writers Festival.

Stephen is also a Member of The International Institute for Strategic Studies (London) and a Fellow of the Centre for International Legal Studies (Salzburg).

Stephen has contributed to the books 'Australian-American Relations: Looking Toward the Next Century' by William T. Tow and 'The Wran Era' by Troy Bramston. He is a contributor to the review pages of 'The Australian' and is a commentator on Australian and American politics for Sky News and SBS television.

Speech

Australian Democracy and our law

Distinguished guests all

Note Neville Wran story of the commencement address at Yale.

This morning I would like to make a few brief observations about the value of the study and practice of law in the Australian Political, Economic and Cultural Fabric.

We are very different to the Americans, with whom we so often compare ourselves, as do a great many other people in western developed countries.

The most striking difference between the United States and Australia is that the Americans have tended to settle their historical differences by the shedding of blood.

In Australia, we tend to talk the issues out and arrive at a broad consensus.

Let me illustrate.

The Declaration of Independence and the US constitution are the products of the revolutionary war. The revolutionary war was more bitterly fought between Americans than is ever really acknowledged. The popular history is of red coats and patriots. The reality, as registered by the tens of thousands of Americans who fled to Canada after the revolutionary triumph, is altogether different.

From Lexington and Concord to Bunker Hill and eventually to Yorktown, the courage of the American Revolutionary Soldiers was never in doubt. But not all Americans saw issues in the way in which the founding brothers perceived and framed them to be. It was a war characterised by divided communities and deeply political division.

The tradition of conflict determining America's national symbols continued in the war of 1812 which produced the anthem, from the siege of Fort Machinery at Baltimore. Francis Scott Key, the author, literally saw the stars and stripes still flying the morning after the anticipated surrender of the fort to the British navy. The battle continues to resonate in the words of the anthem, The Star Spangled Banner.

The most violent conflict in which Americans have ever been engaged of course is the Civil War and it is in the trenches at Petersburg that the flag itself is confirmed. The brilliant historian Shelby Foote once made the observation that prior to the civil war people referred to "the United States are". After 1865, reference was always made to "the United States is".

Australia crafted a very different political, legal and indeed cultural fabric. While American lawyers drafted revolutionary declarations or emancipation proclamations, Australians talked important issues out generally for more than a decade.

Our constitutional conventions begin in 1889 and a document is confirmed at Federation in 1901.

The status of the Commonwealth is confirmed during the war in 1942, when the Statute of Westminster, available to Australia for a decade, following passage by the House of Commons in 1931, is finally embraced.

And then there is the national anthem. Gough Whitlam changes the anthem to Advance Australia Fair and Malcolm Fraser proceeds to change it back. Bob Hawke, has the anthem confirmed at referendum in1984. Again a period of 12 years passes before we arrive at a resolution of a significant element in the national cultural statement. So it will prove to be with the republic. We will talk it out.

Given our capacity to deliberate at length and to arrive at a consensus, there is a particular place for those versed in the law in contributing to the best possible outcomes. Indeed, it was this desire to work from a solid and fundamental understanding of our legal traditions and our legal imperatives that took me into the study of the law at uts, in the year 1993.

At the time I was a member of the Australian senate, serving in the Keating government. My interests primarily were in the areas of foreign affairs, defence and trade.

But I had never forgotten the advice of one of the great premiers of nsw, bill mckell, who went on to serve as governor general under Ben Chifley, that a grounding in the law was invaluable to those who are serious about government service.

To begin, a legal education makes an mp a better legislator. It is that simple in terms of increasing the understanding not only of the form of the law which is being proposed but the consequences of its passage.

Second, a legal education affords an mp a much better appreciation of Australia's role in the world and the significance of international law. It is fashionable in some quarters to ridicule the great international instruments, from the international covenant on civil and political rights (iccpr) through to the framework agreements which created the international tribunals that have called war criminals to account in places as different as Bosnia and Rwanda. But these are the best means developed so far by which humanity endeavours to establish standards and to furnish the set of principles by which all men and women can aspire to live in a just and harmonious world.

True, sometimes we get it wrong and the flaws and the follies make it seem less than worthwhile. The Durban conference is a classic example. But often we get it right. One only has to look at the recent reaction in Khartoum to see the impact of an international indictment.

Finally, a legal education is perhaps the best general education it is possible to receive, as the chief justice Anthony mason once remarked to me after a lunch at parliament house. It is excellent preparation for most professions and particularly for an mp, charged with finding practical solutions to problems and challenges that confront our citizens. It is not necessary to reinvent the wheel in politics and government. The law is an excellent guide in establishing this with certainty.

Even in particularly challenging times of great stress, as we have witnessed over recent years with the long war, the law can be an invaluable guide to appropriate behaviour. We have seen elsewhere that the temptation is only too real when societies are reeling from the predators of terrorism, to discard fundamental commitments to liberty and natural justice and to rely upon less than savoury responses in dealing with those suspected of pursuing barbaric ends.

Australia has not yet lost its way but in certain respects it has been a close run thing.

Our democracy would be better served for the future if we were to codify fundamental notions of rights and obligations for each and every citizen. In short, I am talking about Australia embracing a bill of rights. I am pleased to say that in my own thesis at the uts law school I canvassed certain options for an Australian bill of rights. True, the landscape in 1996 was not particularly promising and there are perhaps increased numbers of obstacles that have arisen in more recent times but nonetheless the objective of an Australian bill of rights is unquestionably worth the effort.

A bill of rights needs to be entrenched in our constitution. As many of you are aware, early drafts of an Australian constitution incorporated a bill of rights along the us model. Only fragments of this original thinking remain as in the clause which guarantees freedom of religion in our constitution.

And now the current attorney general has put the issue squarely back on the agenda, asking for views on an Australian bill of rights. And there is debate at the levels of the states and territories.

There is no question in my mind that the us bill of rights has proved to be a bulwark against government encroachments upon liberty and that this has had impact not only in the united states but widely beyond. Moreover, as the bill of rights has been interpreted by successive us supreme courts, it has extended the rights of protection to citizens in areas as disparate as guaranteeing freedom of speech; protecting against illegal search and seizure and insisting upon legal representation for an accused. And decisions such as Miranda have assumed landmark status in ensuring due process in the American criminal justice system.

Similarly, the European court of human rights has acted consistently to guarantee the protection of fundamental rights and liberties within the member states of the eu. For practical purposes, it banned torture as early as 1978 in a ruling on British security forces' interrogations of ira suspects in Northern Ireland. There can be no question either that if some of the abuses which occurred or as have been reported at Abu ghraib and Guantanamo bay were practised on American soil, then the Supreme Court would have outlawed such misbehaviour as well.

So a bill of rights is unquestionably worth having as part of our democratic framework. And it falls to lawyers to be vigorous and articulate advocates of such a document forming part of our constitutional foundations. An opportunity missed in 1901 need not be missed for all time.

Moreover, there is real value in having an Australian bill of rights work under the international framework of the iccpr. Consistent statements of our values, reflected in our behaviour, are important means of arguing for an improved climate in human rights around the globe. Many documents, like the old soviet constitution, guarantee human rights in theory. It is only by the determined enforcement of laws which guarantee human rights in practice that humanity ultimately advances. Australia already plays a role as a signatory to virtually all the international conventions. We could play a greater role if our domestic politics and governance enshrined a bill of rights as a core part of our democratic culture.

This brings me to the final point I wanted to make this morning. For all the critics, the practice of law in Australia is overwhelmingly an honourable profession. It is honourable in a commercial as well as in a political or social sense. It affords the basis not only for our liberty but for our prosperity.

But beyond the day to day observations and contests; the resolution of issues before the courts and the endeavours of our parliaments to legislate on new issues, there is an unquestioned quality of Australian law that is often overlooked.

This is its ability to inspire.

Inspiration is to be found in the judgements of our highest courts, from harvester to wik; from the decision of the high court in the communist party dissolution case to the rejection of the doctrine of terra nullius. Inspiration is to be found in the great debates by which Australians move forward from a federation and the commonwealth to an eventual republic. And inspiration is to be found when our laws, such as our electoral laws, are cited in other parts of the world as true models of excellence.

So I conclude this morning on this thought. Unlike many other countries, Australians do not go to war over differing ideas or divisive issues. We discuss them. Paul Keating once referred to the Australian parliament as the great clearing house for ideas and he was absolutely right. And in that contest of ideas Australian law as it evolves and Australian lawyers as they are engaged have an absolutely critical role to play. It is a challenge to participate to the fullest extent of your ability, be motivated by ideals which we all share and which reflect both our experience and our aspirations for the future.

Thank you.