Law

In 1988 the Hawke government put a constitutional amendment to a referendum. On the recommendation of the government’s Constitution Commission, we were invited to vote to enshrine guarantees of trial by jury, property rights, and freedom of religion. The proposition was rejected by all states. There is nothing surprising in that. We almost always do vote against constitutional amendment because the politicians of the right have always succeeded in persuading us that the original document (a free trade agreement between the federating colonies) is perfect and, in any case, any proposal for change is a left-wing plot to deprive her majesty’s loyal subjects of their common law freedoms.

In the days when every Australian law student studied legal history, one of the famous cases we were taught was about James Somerset. Taken from Africa, probably in his early teens, Somerset, in 1749, was by the laws of Virginia made a chattel of his master, Charles Steuart. Twenty years later, Steuart took Somerset to England, where he continued to serve as a slave for two years until, in October 1771, he fled his bondage. Steuart had Somerset seized and put on board a ship bound for Jamaica, there to be sold in the slave markets. Abolitionists rushed to the King’s Bench in London, where they obtained a writ of habeas corpus. This required the ship’s captain to bring Somerset to court with a justification for his detention. Fortunately, the presiding judge was Lord Mansfield, who declared that slavery did not exist in England. He uttered the famous order: ‘Let the black go free.’ The law of England was too pure and no slave could live in it. Habeas corpus was the remedy.

The federal government’s intervention in Aboriginal communities in the Northern Territory is, above all, an exercise of power. It illustrates for all to see that the government can interfere with the smallest details of domestic life in a blatantly discriminatory way, regardless of Australia’s international obligations and professed belief in racial equality. It declares to the world that adult Aborigines can be treated like children. Both the present and previous government would argue, in a time-honoured way, that it is for the communities’ own good.

Roma Mitchell came first in nearly everything. Not only at school and university, but in becoming Australia’s first female OC, Supreme Court judge, Boyer Lecturer, university chancellor and state gover­nor. But she had no inside track to success. Her father was killed in World War I, her mother survived on his pension and the generosity of friends, and Roma and her older sister were taught by the Sisters of Mercy for nothing.

‘I am really only an oppositionist, distrustful of power wherever I see it,’ wrote Jack Barry (1903–69) in 1951; and perhaps his oppositional instincts held him back from the heights of power to which he sometimes aspired. Instead, this biography argues, his impact was that of ‘a public intellectual before the term was invented’.

The cover design for this book features a painting by Indigenous artist Johnny Bulun Bulun. It is an appropriate choice, given that it was this artist who in 1988 spearheaded the first major action in an Australian court against the unauthorised reproduction of Aboriginal works for commercial purposes, and in so doing set a precedent in establishing the existence of copyright in Aboriginal art. The case concerned the use of works of art on T-shirts. It was followed by one against the Reserve Bank of Australia, which had reproduced an Aboriginal image on the bicentennial $10 note without permission, and the famous ‘carpets case’ against a company that imported carpets made in Vietnam that contained some well-known Aboriginal artworks in their design.

William Willshire was Officer in Charge of the Native Police in Central Australia from 1884 to 1891, when he was charged with the murder of two Aborigines. He was acquitted, but was regarded by his superiors from then on as something of a liability, ending his career in an uneventful posting in Cowell on the Yorke Peninsula. He wrote three books about his life as an outback hero, glorifying himself as an anthropologist and sentimental champion of the people he had policed with ignorant brutality.

Chester Porter QC retired as a barrister in June 2000. Several weeks previous, the Bar Council appointed Porter a life member of the New South Wales Bar Association ‘for his exceptional service to the Bar Association and the profession of law’. The Council’s decision was unanimous (I know this because I wrote the minutes of that meeting). There was, and is, no dispute that Porter was one of Australia’s foremost advocates. Porter retired from the Bar, but not from passionately advocating justice for those caught up in our criminal justice system, including those members of society many of the community would be happy to have rot behind bars.