What happens when former property conveyancers who have probably never set foot in a court room take over the helm of legal affairs in Australia? The Rule of Law is thrown out the door.
If secular liberal democracy had a sacred cow, the Rule of Law (let’s call it ‘RoL’ for short) would be it. Yet now we see the Commonwealth Attorney-General, supported by the Prime Minister, seeking to create an environment where RoL would effectively become a rule of parliamentarians.
At present, Mr Howard is beating his chest, trying to reinforce his conservative credentials by insisting that all Australians be ruled by the same law. On the surface, Howard’s call is almost a truism. But in practice, it represents a fundamental assault on RoL. Howard seeks to overturn decades, if not centuries, of Common Law consensus on the status of customary law.
Even at the height of colonial rule, English Common Law has always respected and recognised customary law. The Common Law was flexible enough to provide a framework within which various forms of traditional law could apply.
My ancestors were ruled under the British Raj, whose law made room for traditional Sunni and Shia Muslim legal traditions, not to mention Hindu and Sikh customs. These covered such diverse areas of ‘personal law’ as marriage and divorce to inheritance.
We all know conservatives are supposed to respect the status quo, even when seeking its reformation. Even Keith Windschuttle’s version of history tells us of two dominant sets of civilisations in Australia. One has been here for around two centuries, the other for more centuries than Sir Don could dream of scoring. It saddens me to see an allegedly conservative Prime Minister defame what is clearly the cultural status quo of Australia.
I’m not suggesting Jackie Kelly drop the fancy dress and do a corroboree-on-ice. But the fact remains that those of us claiming to be conservative have no business pretending that 200 centuries of Aboriginal customary law can be tossed out by the Rule of Men in Dark Daggy Suits.
So how did we get to a stage where even scions of the Melbourne legal establishment are beginning to find Howard’s rhetoric on Aboriginal cultures distasteful? Perhaps a history lesson is in order.
Back in 1994 I was working in one of Blacktown’s larger law firms in Sydney, doing legal aid work down at the Local Court . It was my first legal job. I was having a great time.
In those days, Blacktown was still safe ALP territory. It was a tough area, and my boss and most of the staff were the sort of people Paul Keating would call ‘true believers.’
One day the receptionist put a call through to me from Canberra. Later, she related the conversation she had with the Member for Bennelong and Shadow Spokesman for Industrial Relations:
He: Hello, it’s John Howard here. I was wondering if I could speak to Eerfin.
He: Eerfin Yoo-suff.
She: Oh, you mean Irfan Yusuf. Can I ask who’s speaking?
He: It’s John Howard.
He: John Howard.
She: [a little suspicious] Are you a solicitor, sir?
He: Well, I used to be once. But now I spend a lot of time in Canberra.
The receptionist sounded somewhat enthused when she buzzed me. ‘I think he said he’s John Howard. If it’s who I think it is, tell him we vote Labor here.’
Thanks to Emo.
Howard wanted to meet for dinner. Some 12 months earlier, I had joined the Bankstown Young Liberals. Perhaps not a very smart choice given that our Federal MP was the tough Labor PM who ruled the roost at a time when the best the Libs could come up with was ‘the things that batter’. My branch President was all excited about our dining with Howard.
Howard had followed some of the work we had done in various ethnic and religious groups. He knew we had hosted a reception for two Bosnian parliamentarians and had even held a fundraiser for Imran Khan’s cancer hospital (which Phillip Ruddock attended).
From memory, it was a Tuesday night. We met Howard at an Italian Restaurant on Pittwater Road in Gladesville. My very conservative Indian mum was most excited at the prospect of my dining with her local MP. She wanted a simple message conveyed to him: ‘Tell him vee vaant more famlee valiyooh! Too many dye-vorse hapuning!! It no good!’
But Howard wasn’t interested in a middle-aged conservative Delhi Mughal woman’s family values rant. He wanted me and some other NESB-type students from the Macquarie University Liberal Club to set up a new multicultural branch for him.
The new branch would resurrect the old Boronia Park branch. It wouldn’t be an ‘ethnic special branch’ but a solidly conservative branch with plenty of different-coloured faces and lots of unpronounceable names.
Within three months, we held our inaugural meeting at the North Ryde RSL Club. I was there with my parents and other members of the family. There was also a healthy contingent from the Macquarie Uni Liberal Club and the Macquarie Uni Law Society. The meeting was chaired by John Howard himself.
The branch was formed, but needed the support of the Gladesville State Electorate Conference. There was some vocal opposition, notably from an ex-Liberal staffer who complained about setting up a branch full of ‘Afghans.’
Howard knew he could rely on us to get him some great photo ops. We organised a dinner for him in late January 1996 at a Chinese restaurant across the road from the Bankstown Sports Club (where Keating’s famous ‘true believers’ speech was delivered).
We managed to get around 200 bums of all different colours, ethnicities and religions on seats. Tony Abbott was MC for the night. All the cameras were there. Howard was seen shaking hands with leaders from Sydney’s Thai, Vietnamese, Chinese and Middle Eastern communities. We even took him for a stroll through the Bankstown Sports Club.
The date of the dinner was significant for reasons that weren’t apparent to us at the time. Earlier that day, Opposition Leader Alexander Downer had resigned. The following Monday, Howard would be drafted to the leadership. Within months, he would defeat Paul Keating.
It seems my friends and I from the failed Boronia Park branch were involved in Howard presenting himself to the electorate as someone whose views on Asian immigration and multiculturalism had changed since he made his famous comments in 1988.
But if his recent comments are anything to go by, John Howard is back to where he came from. His current posturing on sentencing offenders represents a return to the days when Australian culture was a distinctly English Protestant affair.
Howard’s apparent enthusiasm for a return to monocultural Australia is also compromising something he as a former solicitor should be keen to protect the Rule of Law.
At that dinner back in 94, I couldn’t help but ask Howard what sort of law he practised. I asked him whether he did any legal aid work, any bail applications or pleas, or contested AVO hearings. It turned out Howard’s area of practice was conveyancing and leasing.
No one should be done any favours in the pursuit of justice. But all of us have the right to place our individual circumstances before the court when being sentenced for a crime. That includes unique cultural factors. A judge can accept or reject the exp
lanation. But the accused has the right to put it.
Perhaps if Howard spent less time drawing up property contracts and more time defending Australians before Her Majesty’s courts, he might have a better understanding of such matters.
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