Friday, 21 June 2024
The Australian Club, Sydney
Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales

Bujari Gamarruwa, Diyn Babana, Gamarada Gadigal Ngura

In greeting you in the language of the Gadigal, Traditional Owners of these lands and waterways, I pay my respects to their Elders past, present, and emerging.

Thank you for your invitation to speak tonight. It has provided me with a challenge, particularly given the distinguished speakers at past dinners, but it has also given me an opportunity to distil my thoughts on the topics suggested by Father Anthony: character and courage in public life; the importance of faith in public life or current challenges in public life.

As these topics are interrelated, I have used them to reflect on the performance of public duty, in my case, first as a judge and secondly as Governor of NSW.

I shall start with what may be an heretical proposition: that, faith does not and should not dictate the performance of a secular public role. In placing this proposition at the centre of my remarks, I recognise there may be some public roles where this does not apply or not at least in such an unnuanced way. But the more I thought about it, the more correct I consider the broader proposition to be.

However, as it is wisest to speak on what one knows I will confine my remarks to what I do know.

The proposition I have advanced is well illustrated in the case of a judicial officer, where the start and end point of the performance of judicial duty is the judicial oath to “do right to all manner of people according to law, without fear or favour affection or ill will”. It is a centuries old oath found across most judicial systems, certainly those in the western tradition. 

The application of the oath to a faith-based argument can be illustrated by the following hypothetical example: parenting orders are sought by a married couple of mixed-faith: one parent, an adherent of the Hindu faith, is insistent on the child being raised in all its faith aspects, including that the child be a vegetarian. The other parent disagrees, most particularly in respect of the requirement that the child be vegetarian. The presiding judge is an adherent of the Hindu faith, a not far-fetched proposition in our increasingly diverse judiciary. The facts reveal the best interests of the child will be served if placed with the non-Hindu parent.

The obligation of the judge, in accordance with the judicial oath, is to make the determination “according to law”. That would require the care of the child be placed with the non-Hindu parent, despite the judge’s own religious belief.

This example is simplistic but explains the point and lends itself to easy extrapolation to other situations. However, life in general, and court cases in particular, are rarely so simple.  Cases which come before the courts tend to involve difficult factual, emotional, religious, social and sometimes medical issues.

A not infrequent example involves parental refusal for a child to have a blood transfusion.

Let me give you a real example. A seriously ill adolescent was in urgent need of a blood transfusion to counteract severe anaemia associated with ongoing chemotherapy treatment. The parents refused consent to the blood transfusion, it being against their belief as Jehovah’s Witnesses. The young person had stated his intention to pull out any tubes or other medical equipment should he be forced to undergo a blood transfusion.   The primary judge ordered that a transfusion could be administered.

When the case came on appeal the young person was 4 months shy of his 18^th

There was a raft of authority throughout the common law world, some conflicting, as well as local statutory provisions that required consideration. For the Court, the starting point was respect for individual autonomy, including religious beliefs. 

However, where a child is involved, there is a competing consideration, namely, the state’s interest in the preservation of life, which is at its highest in relation to children and young people. There may also be a question, as there was in this case, of the young person’s decision-making competence.^[1]

On its face, this case could have been decided either way. On appeal the Court is concerned with legal error and in upholding the primary judge’s decision, found no error of law.    However, the consequence was a family’s legitimate beliefs were overruled by the Court. 

One can hypothesise the Court’s consideration in that case to the beliefs of a range of different religions; or you could put yourself in the position of the Court of Appeal – and ask what if the primary decision had been determined the other way? What would your obligation be having regard to your beliefs and in the context of your judicial oath?

Another example relates to testamentary disposition. The Court was asked to determine the validity of a provision in a will which left the residuary estate to his children, who were Jehovah’s Witnesses, on condition they became Catholics within 3 months of his death.  The condition was held to be valid.  Justice Kunc, a previous speaker of this series, turned to principle which required the Court to give effect to the intention of the testator unless the provision was unlawful or invalid.  Obviously, a provision dependent on killing someone would not survive judicial scrutiny.  But in the more mundane world of most judicial decision making, if the provision was uncertain, then it would have been struck down.

Justice Kunc found helpful precedent in a Northern Irish case which held the use of the word “catholic’ in a will, on its plain meaning, meant “Roman Catholic,” thus putting paid to the argument that the provision was uncertain because it could have been a reference to any of the churches in the Catholic tradition – e.g. the Coptic or Maronite churches.

I doubt a professed atheist could have come to a different conclusion.

A third example: the case of Norrie decided by the High Court 10 years ago. It was not the first case involving the question of a person’s sex, but I refer to it because it illustrates the wide legal meaning that word has: no longer, necessarily, having a binary meaning of male and female. 

At its heart this case involved a simple question of statutory construction. Norrie, after sex re-assignment surgery, had applied to have her, as she preferred to be called, sex registered on the birth certificate as ‘non-specific’ but it was registered as female.   The High Court held as a matter of construction that the legislation, in referring to sex, recognised a person’s sex may be indeterminate.^[2]  It would have been different if the legislation had referred to a person of the ‘opposite sex’.

These 3 cases were decided by the application of established common law principles, regardless of what one’s personal or faith-based view might be. The first was different from the other two in that there was a judicial discretion involved. It also needs to be noted that in Norrie there was no discretion in the legislation that gave the Registrar General, the holder of a public office, a discretion as to how Norrie’s sex should be registered.

Regardless of the jurisprudential differences, these cases illustrate judicial decision making in a world of diverse views, practices and beliefs, which may require the judge to make decisions which do not accord with their religious beliefs or the Church’s teaching.

I suggest, however, that in doing so the judge is not acting against conscience, or to put it another way, acts with a clear moral conscience – were it otherwise the judge would be offending the oath to “apply the law”. If the judge is unable to do that, there are 3 options: not accept judicial office; resign (both of which might seem brutal); or a third option is to recuse oneself, but there are reasons why that is problematic.  My point, however, is just as the application of principle is the answer to every judicial determination, the judicial oath frames the performance of one’s judicial duty.  

It is not often one speaks of courage in judicial decision-making. Again, that is because, the anchor of judicial duty is the judicial oath. However, there were two cases last century in which, notwithstanding adherence to the judicial oath, indeed because of it, courageous decisions were made. One was the Communist Party Case^[3]. The other, with which you are undoubtedly familiar, was Mabo No 2.^[4]That case determined Australia was not at the time of European settlement terra nullius, literally ‘nobody’s land’. That was a misconception, both factually and legally.  Terra nullius was a European principle of international law meaning without a settled system of law and/or without a settled form of agriculture. In Mabo, this meaning was referred to as the modified doctrine of terra nullius.    

The judgment of the High Court, particularly that of Sir Gerard Brennan, is, in my estimation, a case of judicial courage, captured in the remarks of the Chief Justice of Western Australia who said Mabo “was and remains the definitive expression of the common law’s reckoning with its own history as it concerned aboriginal interests in land.”

The Chief Justice quoted directly from the judgment where Sir Gerard said: “no case can commend unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system”.^[5]

At first blush, Sir Gerard’s observation might seem contrary to that which I have been most insistent, the obligation of a judge to “apply the law”. Reference to “the values of justice and human rights” is not the natural language of common law jurisprudence.  However, it was Sir Gerard’s brilliance in understanding the depth of the common law and in drawing upon its traditions, articulating a jurisprudentially sound basis which enabled him to “adopt rules that accord with contemporary notions of justice and human rights [without fracturing] the skeleton of principal which gives the body of our laws its shape and internal consistency”. 

Mabo was criticised as socially divisive. Reactions ranged from jubilation to hatred to fear, real and imagined.  Meetings were held.  Eddie Mabo’s headstone was desecrated. Media coverage included headlines such as ‘black land grabs’, ‘West[ern] Australia plots to stop Mabo claims’ and ‘Mabo - a legal vacuum’.   Prime Minister Keating, initially jubilant by May 1993 was referring to a ‘legal mass’ stating “he was quite sure the High Court did not understand the ramifications of the decision.”  In NSW, Premier Fahey announced the intention of the NSW Parliament to legislate to protect beaches and parks from Mabo-style claims.

The Western Australian President of the Pastoralists and Graziers Association said in a public speech to the Australasian Law Students Association that Mabo was the worst disaster since the Second World War. The debate over the Native Title Bill was the longest ever debate in the history of the Parliament, and, to say the least, was heated.^[6]

In many ways, the implications of Mabo are still being played out. However, at the very least, it corrected an error which seriously impacted the lives of Indigenous Australians.  Without that step, we would still be a long way from where we are now.  

Judicial life is now behind me. However, as Governor, I have once again taken an Oath of Office – indeed I had the privilege of taking that oath on the bible of Bishop Polding, held in the archives of the Catholic Archdiocese of Sydney.  In the Oath of Allegiance, I swore “that I will be faithful and bear true allegiance to [the sovereign and their] Heirs and Successors according to law”^[7].

It is a truism that the role of Governor has changed from its 1788 autocratic rule; through to the establishment in 1824 of the Legislative Council, a nominated body but in which resided in the Governor the sole right to introduce legislation (I’ve wondered in jest why they took that gubernatorial power away); to a role now defined by the 3 C’s: constitutional –the raison d’etre of the position; ceremonial and community.

From the outset, I have appreciated it is a privileged position. Most importantly, I experience on a daily basis the importance that people be and feel valued.   There are challenges in the role: the most significant is identifying the political line across which I must not step.   For the most part that is not difficult and, indeed, I have been known to remark the position is ‘all status and no power’.   On one level that is true, as except in the case of a constitutional issue, I act on the advice of the Ministers of the day. However, having made that remark to the now President of the Upper House, he responded, “you’d be surprised at the amount of soft power you have”.  I have come to understand the insight in that statement.

However, I perform the role at a time when society is becoming increasingly polarised, and I can be asked to make public statements or attend events which might be political or which would offend another section of the community. It can be delicate.  In looking at our society, there is a concern, even a risk, that rather than being a successful multicultural nation, as we so often proudly claim, we are becoming a country of nations. 

Language can be fraught. I was corrected recently for using the word Aborigine - the correct terminology is First Nations or Indigenous.  Aboriginal is acceptable but just. In our experience, however, not all Aboriginal people want to be called Indigenous – they are proud to be Aboriginal or indeed, an Aborigine.

There are those ‘gotcha moments’ one reads about in the press when a politician is asked to define a female. One university’s student union’s rules refer to women with the spelling: wom*n.  

The earlier emanation of ‘the language wars’ seem innocent by comparison: remember the outrage at the use of the appellation “Ms”, or having to say ‘him and her’ and the hostility of the grammatical purists to using the so called ungrammatically correct ‘their’ was something to behold.

Being a proponent that language shapes thinking and perceptions, I have a concern that wholesale abandonment of long used terminology may mask what in reality is a form of ‘cancel culture’, without regard to the risks, including medical risks, in the use, for example, of solely non-gendered terms.

This role has also made me think deeply about community. Priding ourselves as a cohesive multicultural community, I eschew the use of terms such as ‘minorities’.    This ties in with the observation of a risk of Australia becoming a country of nations. I have two related concerns in this regard.  

Minority rights are sometimes asserted without due allowance for the rights of others. The second and related point is that the label ‘minorities’, can be divisive – providing the fracture point as it were.  I prefer to see society as a community with ill-defined edges - or perhaps amorphous edges is a better description - where at different times people have different needs; calling for dialogue, understanding and action, rather than the metaphorical shouting match from opposite view points.   

Which brings me to my final point, so the floor can be opened up for discussion, and that is I’m not sure whether its age, experience, or the times in which we live, but it is easy to be disconsolate about the current state of affairs, both nationally and internationally. We’ve had Robodebt, big accounting firms not understanding a conflict of interest, and physical damage to property as a form of protest.

I could of course talk about Donald Trump who said he ‘could stand in the middle of Fifth Avenue and shoot someone and [he] wouldn’t lose any voters’, demonstrating and, I think, unleashing a disregard for the rule of law in one of the largest democracies in the world. The same point can be made about a convicted felon possibly becoming the President; the move to the far right in Europe; a media which at times assumes rights which transgress institutional interests and personal rights; the dark side of social media; and there is always the question of why the Wallabies can’t take a trick.

But I don’t want to end on a depressing note so I will conclude by returning to the judicial oath. The centrality of the oath to the performance of one’s judicial duty was explained well by a US Circuit Court Judge, William H Pryor Jr^[8]. He cites 4 ways in which his faith mattered in the performance of his office: first, (and I would add foremost)  it informs his understanding of his judicial oath;  it was the basis of his moral duty to obey the law; it inculcated a duty ‘to serve the moral enterprise of democratic governance and the rule of law’; and finally it informed  his performance as a judge to be honest’.   In brief it was the moral compass by which he performed his duty. 

[1] X v The Sydney Children’s Hospital Network [2013] NSWCA 320

[2] Registrar v Norrie [2014] HCA 11

[3] Australian Communist Party v The Commonwealth [1951] HCA 5.

[4] Mabo v Queensland (No 2) [1992] HCA 23.

[5] Mabo [1992] HCA 23; (1992) 175 CLR 1, 30.

[6] https://mabonativetitle.com/info/somePoliticalRamifications.htm

[7] Constitution Act 1902 (NSW), s9A. See Oaths Act 1900 (NSW), Schedules 2 and 3 for the form of the Oaths.

[8] Chief Judge of the United States Court of Appeals for the Eleventh Circuit.