Atticus Finch was a character created by the journalist Harper Lee in her Pulitzer Prize winning novel To Kill a Mockingbird. When the book was made into a film, Gregory Peck won an Academy Award for his portrayal of Atticus. It was his finest performance. Like Harper Lee’s own father, Atticus Finch was a small town lawyer in the southern United States. When Atticus agrees to take on, pro bono, the case of a black man charged with raping a white woman, he knows he is entering troubled waters in the racist south. At one stage he sits outside the local jail, armed with a shotgun, in order to protect his client from a racist lynch mob.
Atticus Finch not only defended his client, but took on the whole town’s racism – the only way to properly do his job. His character is an inspiration.
The Federal Attorney-General, Philip Ruddock MP, held up the example of Atticus Finch in a recent article in the Australian in which he attacked pro bono lawyers, saying that, ‘an increasing shade of moral vanity colours pro bono work’. In particular, Mr Ruddock attacked lawyers for attempting to effect ‘broader social and political change’.
But Atticus Finch defended his client – not just in court, but against the deep seated racism that allowed his client to be charged. Protecting his client from a lynch mob, and confronting the locals with their own racism, was indeed attempting to effect broader social and political change.
Mr Ruddock thinks that lawyers should stay out of the ‘political fray’. He complains:
Of 28 media releases issued by the Law Council of Australia this year, 24 entered the political fray. Eight were devoted to David Hicks. Not one was related to the push to create a national legal profession.
Mr Ruddock is right to be sensitive about lawyers speaking out over the treatment of David Hicks. Mr Ruddock has publicly supported the inhumane treatment of David Hicks in Guantanamo Bay. Not just Germany and Britain, but Saudi Arabia and even Afghanistan, have objected to the military tribunals set up by the United States for Guantanamo Bay detainees. The US never subjected its citizens to this process. Only Australia – the relevant minister being Mr Ruddock – has supported the subjection of it citizen to such a travesty of real legal protection, falling far short of the norms of justice understood by every civilized country.
Mr Ruddock recently suggested that if David Hicks wanted a speedy trial, he should plead guilty; thus providing us with the spectacle of the first law officer of the Commonwealth trashing the presumption of innocence.
Mr Ruddock also attacked Julian Burnside QC, saying:
Some lawyers assume they are gifted with unique insights into the appropriate moral content of the law. Consider this address by Julian Burnside: ‘Plainly, the Government understood (border protection) would be electorally popular among the large number of Australians who had responded positively to far-Right racist political programs. The struggle for justice fell on to the shoulders of a few lawyers.’
Julian Burnside was speaking about the Tampa case. In the Tampa case, Mr Ruddock was the relevant Minister when Australian troops were used to prevent asylum seekers – at gunpoint – from approaching the courts to vindicate their rights. As the Full Federal Court held, the lawyers spoke in court for those who were perforce voiceless, and in so doing acted in the highest traditions of the law. By contrast, Mr Ruddock has:
• attacked the judiciary, having been required to explain himself to the Full Federal Court in May 2000; • undermined and reduced funding to legal aid and community legal centres; and • introduced legislation, such as the National Security Information Act, which is calculated to prevent the courts properly deciding whether government power has been exercised lawfully.
Doing pro bono work is part of the tradition of the law. It is a fundamental professional and ethical obligation. It is often very hard work.
We have a choice as a nation. We can be governed by powerful people whose decisions and actions are not subject to any limits – the rule of the despot – or we can have a society where precise laws apply to powerful and weak alike – the rule of law. It is, in essence, the choice between tyranny and democracy. Mr Ruddock may not like having his actions scrutinized by the courts, but that is precisely what the rule of law is all about.
Despite Mr Ruddock’s complaints, we need pro bono work more than ever – because the actions of leaders like Mr Ruddock have undermined the core value that all lawyers understand – the rule of law. And it is up to citizens – including lawyers – to keep governments accountable.
Mr Ruddock, in statements to overseas journalists, has blamed our Indigenous people for their own level of disadvantage in Australia. He has said that prior to European colonization Aborigines had no knowledge of the wheel and no experience of a more advanced civilization. He claimed that this low level of development may explain why the Indigenous population is still disadvantaged today.
Perhaps, after all, Mr Ruddock has more in common with the racist lynch mob than he does with Atticus Finch.
Brian Walters SC is the immediate past president of Liberty Victoria