A letter to Sydney Law students
Getting arrested is certainly one way for someone like me to get people’s attention, ‘someone like me’ being a white, middle class, male law professor; we don’t get arrested, at least not in public. People who get arrested in public are usually the ‘other’; not white, not middle class, not professional. To the extent it is noticed at all, the arrest of people of that profile is often accepted as the way that things are .
Obviously (I hope), I didn’t get arrested to get attention, or deliberately at all. I was observing the protest, and saw police conducting themselves in a way that, as a citizen and a lawyer, I could not let go unchallenged. When I saw police assaulting peaceful protesters and taking their property, I asked them ‘why?’. That was enough to become a victim of assault myself.
Colleagues observed wryly that I was taking ‘engagement’ in my teaching and research to excessive lengths, but my arrest was in fact a teaching moment in many ways. The circumstances raise immediate issues of law enforcement and police accountability. And then – for questioning, analytical, critical minds such as those you have developed during your law degree studies – other issues follow: the exercise of power, the role of administrative law, and freedoms of speech and movement, for example.
You have refined the art of issue identification over the past few years, so you may have spotted another issue in what I said above; what little you retain from studying my course The Legal Profession may have been stirred by my saying that I challenged the police because I am a lawyer.
I can’t say my being a lawyer was a conscious, let alone considered, reason for my acting as I did. Rather, I think that my instinctive response to what I saw happening came in large part from an ingrained sense of having a duty to the administration of justice (ring any bells?). We can – and next time I teach The Legal Profession we will – discuss what the scope of that ‘administration of justice’ duty is, but my experience suggests that it can encompass a duty to restrain the states’ excessive and inappropriate use of force.
There are ways and ways of a lawyer’s acting to restrain abuse of power (public and private); you don’t have to seek out and confront police misconduct. In a more lawyerly way, you will be getting out your admin law notes and wishing you had paid more attention in classes on merits review and judicial review, and going through your civil procedure and equity notes to remind yourself of remedies such as prerogative relief and estoppel. You may even be living the mooter’s dream, on your feet in an appellate court arguing for constitutional limits on the exercise of state power.
As a teaching moment, the arrest can take inquiring minds other directions. One is law reform. We can ask, for example, when and why did the NSW police get pre-emptive arrest powers? When and why did the Ombudsman’s Office lose jurisdiction over police complaints? And, looking ahead, we can ask whether and how new reforms could roll back those earlier reforms.
Another direction for inquiring minds to take is access to justice. For these purposes, let’s say that ‘justice’ comprises a remedy for assault and wrongful arrest, and a disciplinary response to police misconduct. How accessible is justice of that sort? Answer: not very. On a range of considerations, I am a very well resourced plaintiff/complainant. If there is a remedy to be had and an accountability mechanism to be engaged, then I should be able to do it. But I was actually challenged to work out what the pathways to justice are, even with the invaluable help of Redfern Legal Centre and volunteering criminal law barristers. I was further challenged by the time, stress, and financial risk that I faced in pursuing justice.
Despite my well-resourced status, getting access to justice is beyond me. But at least I had the capacity (and help) to work that out. Other protesters who were assaulted and arrested can’t necessarily get even that far, and that is probably true too for many young people, homeless people, Indigenous people, migrants, and people with a disability, who more frequently have negative interactions with police.
Issues such as these – restraining abuses of power, pursuing law reform, ensuring access to justice – matter to many people, lawyers or not. But I think they matter in particular to lawyers, even to the extent that a lawyer has a duty to address them. This arises for those of you who will take your law degree into practice, but it is also a special awareness that all of you have, simply for having studied law.
The formal rules of the profession do not specify a lawyer’s duty to restrain abuses of power, pursue law reform, and ensure access to justice; the formal rules imagine a lawyer only as in the service of a client, and as an ‘officer of the court’. Despite the grandeur of the admissions ceremony, you will find that the oath of office on being admitted as a solicitor of the NSW Supreme Court is very modest in its scope:
I will truly and honestly conduct myself in the practice of a legal practitioner of the Supreme Court of New South Wales and I shall faithfully serve as such in the administration of the laws and the usages of that State according to the best of my knowledge, skill and ability.
That conveys to me an admirable but narrow and quite passive role for a lawyer in society; I think of it as a bottom line. Is that really all a law degree enables you to do? Is that really all you’ve been studying for? Quite what ‘more’ you want to do with your law degree is up to you, but making a professional contribution to people’s peace, fulfilment and happiness is an option.
My colleague Kim Economides has long been a champion of a lawyers’ version of the medical practitioners’ Hippocratic Oath. An example he gives is the oath that new lawyers take in Brazil:
I promise to work as a lawyer with dignity and independence, to respect ethics, professional duties and responsibilities, to uphold the Brazilian constitution, the democratic legal order, human rights, social justice, fair and expeditious procedures, and the reform of both legal culture and legal institutions.
Compare and contrast. Lawyers in Brazil aim higher, and expect more of themselves, than do lawyers in NSW or, to be fair, than than do lawyers in common law jurisdictions generally.
You are bound to have personal and professional learning moments in life-after-law-school, and you have, at least, the legal knowledge and analytical mind to get something out of those moments. The more time you can make for thought and reflection the more you will keep learning about yourself and your place in the world. I hope for you and for all of us that you feel able, when you have the opportunity, to use what you know to restrain abuses of power, pursue law reform, and ensure access to justice. Go well.
Originally published in Blackacre, Sydney University Law Society, 2021, as ‘Being Arrested: A Badge of Honour’