Legal ethics, Kant and Adam Smith

Author: Ken Parish

Legal ethicist Neil Watt has a rather depressing article at Richard Ackland’s “Justinian” about the glacial pace of progress towards nationally consistent solicitors’ rules aimed at achieving uniform ethical standards for Australian lawyers:

I expected everyone around that table to be committed to the best of ethical standards free of self-interest. I expected members of an ethics committee to understand the importance of principle and to ensure the rules we wrote were based on the best of these. I expected us all to reach for something better than mere minimum standards. I expected us to ensure any interstate agreement didn’t become an exercise in ethical compromise – a mad dash to mediocrity.

I discovered, after three years of battles over principle, that my idealism was misplaced. …

Mostly we had battles over what the law would allow rather than what was the right thing to do. And there’s the difference between ethics and law. Law states what we must do, while ethics is about what we ought to do.

A committee charged with providing ethical leadership to the solicitors of Australia shouldn’t be focussed on what we can get away with, but what is in the best interests of the profession and the people we serve.

To do that effectively we have to divorce ourselves from self-interest, and there lies the rub. …

Perhaps imagining that it is even possible for an entire industry/profession (or even its leadership) to divorce itself from self-interest is the problem here.

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Austin Asche Oration - Keane CJ -

Free speech, hate speech and human dignity

Federal Court Chief Justice Pat Keane

[Actually first published 21 October but post-dated in order to manipulate front page placement sequence in WordPress]

The audience at last night’s Austin Asche Oration witnessed an address by Federal Court Chief Justice Pat Keane which some might label as courageous in a Sir Humphrey Appleby sense. Without ever mentioning Bromberg J’s recent decision in Eatock v Bolt, Keane CJ cut to the heart of the central issue of controversy in current public debate.  That is, whether and how the law might appropriately balance the competing public interest imperatives involved in protecting freedom of political communication while simultaneously restraining socially destructive hate speech.

Gay marriage conscience vote only first step

There has been a lot of discussion about the political prospects of a gay marriage law being enacted by Australia’s Parliament in the wake of last weekend’s ALP resolution adopting it as policy and allowing MPs a conscience vote.  Although a bill recognising gay marriage is still fairly unlikely to pass, it isn’t completely impossible if Tony Abbott also allows Coalition MPs a conscience vote (as former leader Malcolm Turnbull is advocating).

However there’s been much less discussion about whether the Commonwealth even has the constitutional power to legislate for gay marriage. There are doubts about this depending upon one’s favoured approach to constitutional interpretation.  In the United States “originalism” is the most widely favoured approach to interpreting the Constitution. although there are more versions of originalism than most people have had hot dinners.

The Commonwealth has constitutional power to make laws with respect to “marriage”.  See Constitution s 51(xxi).  But what is a “marriage”?  Does it include a same-sex union?  A polygamous union?  A de facto relationship, heterosexual or otherwise?  A union between whomever that isn’t for life? It is now clear that “marriage” does not include a de facto relationship.  See Russell v Russell (1976) 134 CLR 495.  However it does include a union legally terminable after 12 months separation and “irretrievable” breakdown (the latter essentially established by the former).

There’s no doubt what the vast majority of the “Founders” understood when they used the expression.  They meant a union for life between a man and a woman.  They didn’t mean a union between two blokes or two women.  They would have agreed emphatically with Paul Keating’s trenchant observation that “two jokers and a cocker spaniel don’t make a family”.  But does that necessarily circumscribe what “marriage” should mean today for constitutional purposes?

In Australia theories of constitutional interpretation tend to generate rather less heat than the US, possibly in part because we don’t have a Bill of Rights where differing interpretative approaches may yield radically differing outcomes on subjects involving deep ideological disagreements.

Polarised debate on the NT Intervention

There’s a very noisy left-leaning opposition group to the Gillard government’s modified version of the NTER or Indigenous Intervention (which Minister Macklin has variously renamed “Closing the Gap” or “Stronger Futures”).  No doubt they’re sincere in their opposition to current policy, but their rhetorical style is shrill to say the least.

If you read only publications like Crikey or the Fairfax press, you might well be convinced that the Gillard government’s Indigenous affairs policies are just cynical, racist paternalism.  A typical example is a piece in today’s Crikey newsletter by Dr Hilary Tyler and Paddy Gibson.  It deals with some of the research underpinning the Commonwealth’s recently released 400-page evaluation of the NTER, in particular the Community Safety and Wellbeing Research Study.

The reasons why opponents of current policies might wish to discredit this research are apparent from a brief perusal of the executive summary: