Beauty as a Foundation for Justice

The federal government uh doesn't seem able to keep its finger out of anything. Far too much intrusion by central government. We have laws now which say that if I am offended or insulted, that is unlawful and I can take you to a court. You know, it's going to be very difficult to have religious freedom if there are other religions that uh don't believe in the tolerance of other religions. We've got that in Australia, but one's not allowed to talk about it. No Christians are regarded as orthodelts. You can't talk about Christian beliefs. Jewish people will find it difficult when they can't get to their synagogues. It's this internationalism. We can't remove judges once they pass the law. And if they take on the role of giving the law, they arrogate to themselves the role of our legislature, who defines law for us on our behalf. So the the point is a human rights act shifts that constitutional compact, that separation between the three arms of government, which has been enshrined in our constitution because of the wisdom of our forefathers in pulling apart authority over us. What's so remarkable about the Australian Constitution and why should we actually have at least a working knowledge of it ? It's my privilege today to talk to two people who understand the law. Judge Ian Callanan is a former justice of Australia's highest court, the High Court. He's been an ad hoc judge of the International Court of Justice and a Royal Commissioner of several national and state inquiries. He's also been a board member of many art galleries. Had a time on the ABC board, which he may or may not care to talk about. He's a member of the Council of the National Gallery of Australia , also a novelist and playwright who's written quite a few books. Mark Fowler, who's also been writing books, is principal of Fowler Charity Law and Adjunct Professor associate professor at the University of Notre Dame and the University of New England, which is where he actually first trained. His book Beauty and the Law has just been published. Ian can, I start with you, somewhat tongue in cheek? Are you a lawyer first and then a playwright and a novelist, or a novelist and a playwright and then a lawyer? Well, it depends on what time you ask me that question. Uh look, when I was about twelve, mm my ambition was to be a Test cricketer and a novelist. Now I wasn't nearly good enough to be a Test cricketer. Uh and of course um it was impractical to be a novelist. So I put creative writing on the shelf for about uh three or four decades and came to it. So I I'd like to think of myself as both, if I may. Well there you go. Can I ask you both? We take the law for granted, I think, in this country. Give us a feel for how we came to develop what we call the law in Australia today, the undergirding of our essential freedoms uh and our commitment to justice. Well well we we brought with us with the first white settlement uh British law and uh was about a year or two after um Lord Mansfield had declared that uh no man in England could not be a free man and uh th that was uh not only the law that w came, but uh also it was the sentiment, I think. And uh we were very, very well served by our practising lawyers of the uh nineteenth century, and in particular those who wrote the Constitution . Th they were uh well inform ed not only about uh British law, but also very well informed about uh United States constitutional law. And that's why we got uh I think the brilliant uh the brilliant uh uh really novel uh institu tion that we do have, the the Constitution, which is a blend of uh I think the best of British and and the best of United States. Many perspectives, Mark? Yes. Um Well, Judge, I I recall you made the comment in the WorkChoices decision of um 2006. You said that constitutional interpretation and and you're quoting Robert Menzies in this, you might recall, um constitutional interpretation is a mixture of statutory interpretation, history, and political philosophy. And that was a very accurate claim and Robert Menzies' claim, but as as the judges just said, um our constitutional fathers, founding fathers, if we can use that s rather American term, if you look back to the debates, they saw themselves as um uh the beholders of an inheritance from the English. Very much so. So a lot of the debate you can see in util itarian terms that the the democratic structure is in the servants service of utility and the um you know greatest pleasure for the most, but you can also see a lot of Burkean philosophy, for example , so particularly the idea that we should not uh legislate from abstract principles. That rather so Burke's great critique of Rousseau and the French Revolutionaries, they are imbibing uh his wisdom actually a lot of our constitutional founders. And we often think of him we're I mean, most Australians aren't concerned about the constitution whatsoever, in a way that the the Americans are, for example, and they take their republic very seriously following Montesquieu and his understanding that really Montesquieu's great understanding, and this is where the Americans took the idea of the separation of powers, but Montesquieu observing England in dividing power between the legislature, the executive and the judiciary. The idea which then was inherited by our founding fathers, if I can use that term again, was this separation flowing from the idea, John, that you've heard possibly the phrase, you know, power corrupts absolute power corrupts absolutely. Lord John Acton talking about his own church, interestingly enough. That was about covet of church. But um so his so his comment was parcelizing authority to ensure that power does not corrupt and therefore we all um are subject to tyranny. And so this idea was what was imbibed by our constitutional fuzz and Burke's critique of the French Revolutionaries. And we can really say, and coming back to the comment that constitutions are founded on a bedrock of political philosophy. Burke's critique of Rousseau really sets up the modern um dichotomy that is that uh we can say is enshrined in political philosophy of the modern age since seventeen eighty nine. And it's the idea summarized by um Oakshot very well, Michael Oakshot, you might have heard of, but he was obviously drawing on um Burkean principles. And he said that the great distinction is between present laughter and future utopian bliss. And Burke was, as you know, Berg's idea was that we proceed from the love of the local, that which is tangible to us, that which we love from family, association, friendship. We proceed from that to the love of the nation. But whereas the Rousseau ian idea that he was critiquing, which the French Revolutionaries put into practice, was the idea that Burke called un universal benevolence, so a top down abstract principle that is applied to localities without particular concern for the locality or particular regard for the unique dynamics of the locality. And this was Burke's great critique, and this was drawn upon by our founding fathers, and part of the reason why we didn't end up with the US Bill of Rights, they specifically considered a Bill of Rights and rejected it. And in doing so, they were imbibing these Burke and ideas that we don't want abstract top-down philosophical maxims, rather we want to build from the bottom up. So present laughter as opposed to future utopian bliss. And as I said, that enshrines what is modern political p hilosophy, the di the dichotomy, two main schools of it. This is boy lectures. Uh there were five lectures I gave one. Um but the keynote was given by an Australian economist who works and teaches in America, uh, Justin Justin Hoffer. And he argued that Australia is, if we only realised it, the greatest country in the world because we have the best institu tions in the world . You just made the point though that they're not of much interest to people. We don't pay much attention. So you've touched on the constitution. It's surely key amongst those institutions. What's so remarkable about the Australian Constitution and why should we actually have at least a working knowledge of it? I think that sometimes uh it it doesn't matter. As long as there's a consciousness that the institu tions of it are operating properly and fairly. w one doesn't have to have an intimate knowledge of the Constitution, I think, to be aware of it. And uh I I think that can be demonstrated by the uh results, for example, of the Republic referendum and also the the more recent referendum. In both of those obviously the the majority of the electorate was convinced that the uh constitution was working satisfactorily and that the proposed changes uh would endanger that uh would endanger the Constitution . Of course it's better if people have a an education about these matters, but you've touched upon something that uh I think is very important. When I was at Cooper East State School, one of the subjects was civics . And and we were taught about the levels of government, and uh in an elementary way we're given some The government's own work uh actually shows that less than half of Australians have had what could be described as a civic education of any stand as. That's very different to America. Now they're in turmoil at the moment over whether they are really inheritors of their own uh revolution or whether it's the French Revolution it seems these days, but they're very conscious of their founding forefathers and what they were thinking. Uh and uh we don't seem to be equally I doubt whether many Australians could name their early leaders or the framers any of the framers of the Constitution. Well I I don't think any of them would know about Barton. I mean Barton was an absolute hero of the Federation Movement and of the Constitution. To his Prime Minister of Australia, uh I I think uh uh he he and the others uh there was a collective genius Griffiths and uh Griffith was a towering intellect. He was a Queenslander, wasn't he? Yes, he was born in Wales. He was uh but he came here when he was very young. He was a very confident man. When he was nineteen he applied to be headmaster of the Ipswich Grammar School, which was the f the first grammar school in uh Queens land . Is it's uh I think it's as well but he didn't get it because he did he achieved a great deal more . So there and the draw on not only the British heritage, I would imagine as you've touched on, observing what had happened in Europe, Mobrule, the the framers of the American Constitution were very worried about how you balance freedom with the dangers of mob rule, Alexander Hamilton particularly conscious of it. He was the author of a lot of their Federalist papers and what have you. So what was uppermost in their minds as they set out. It's a dry and dusty document. Presumably, just to get your thinking going, I'm thinking it's about ensuring the equality of all before the law. Uh no distinction, which is, I think, why Australians in the end said no to the voice, no categorisation. And it's about parceling power so that you can restrain mob rule. Would they be the sort of the things that were uppermost in their mind as they tried to work out how to put this together? I I think they would have they would have assumed it was uh they w would have assumed it and they would have assumed it safely. They they would have thought that uh there there's no question that we can have a const itution that would enable mob rule. Uh we will establish institutions, you separate judiciary you One one of the great points of contention or one of the things that they grappled with is how do we take our English heritage as they saw themselves to be the inheritors of, and how do we bring it into a federated model? Yes. And that's why they looked to the US. That was the relevance of the US. And so because in in to explain to the listeners, a federated model in the sense that we have colonies, former colonies, there was no national government prior to nineteen oh one. So these colonies were devolving powers to this new national body. And in doing that, again it proceeded from the idea that cor um absolute power corrupts absolutely that we should again pull apart power, so the states will be a counterweight to centralized power in now Canberra. Um so their great conundrum was how do we take the unwritten constitution of the English that, this great love and savouring of of freedom that the English are known for, which Montesquieu was observing from the continent when he came up with the separation of powers. How do we take this English heritage and bring it into a federated model. And there were many that um were actually quite opposed to striking law down in black and white, because as soon as you you write down a law you take away freedom by that. So there was that inheritance. Well that's the argument s of rights. Right. And so to come to the Bill of Rights, they were concerned about the American model because of Marbury and Madison, which is um the ruling of the Supreme Court that the Supreme Court could override and and nullify um the will of the people through the legislature. And so they didn't want that circumstance and they knew it wasn't the case in the in um England. So this is a contemporary question for Australians. There was a Commonwealth Parliamentary Inquiry, the Parliamentary uh Committee, a Joint Committee on Human Rights, in the last term of government, received a referral from the Labour government as to whether there should be an Australian Human Rights Act and the recommendation was that there should be and the proposed act was annexed to the committee's report. This is a matter for the current Attorney General that Mark Dreyfus was the attorney at the time, uh Michelle Rowland's now the attor ney. So the big issue, part of the reason why they rejected the hu the Bill of Rights model, is that it moves power from the our elected representatives who we can replace as you faced elections every three years, you had accountability when you were um as a politician, John. But of course, judges aren't accountable to the people. And so Francis Bacon, again part of the English heritage, the philosopher judge, but not he didn't meld the two, but um said in sixteen oh one um that the role of the judiciary is just decare , to declare the law, not just dare, to give the law. And if they take on the role of giving the law, they arrogate to themselves the role of our legislature, who defines law for us on our behalf. And we can't remove judges once they pass the law. So th the point is a human rights act shifts that constitutional compact, that separation between the three arms of government, which has been enshrined in our constitution because of the wisdom of our forefathers in pulling apart authority over us. It's not an Australian example, but Roe versus Wade is surely an illustration of the point that you're raising about people not taking care of the law, rather than making law when it's not their job and they're not accountable and the US Supreme Court, in its very controversial decision to overturn it , was not actually judging abortion as an issue so much as I understand it, as saying the wrong people made this decision, unaccountable people, judges made this decision. Correct. Do you elect politicians to make those decisions on your behalf and then if they get it wrong, you can get rid of them? Correct. That it that decision, the recent decision, just handed back power to the states. Yeah. Where it should never have ide ally where you you've got a proper separation of powers, that's where the decision should always have been made in the first place, one way or the other, correct. John, why what has distorted though that balance ? Is uh thought him its intrusion by central governments. Now I hesitate to say that to a deputy distinguished deputy prime minister of Australia. But uh the the federal government uh doesn't seem able to keep its finger out of anything. We we we touched on education . Uh you uh you only have to look at the syllabus and the the impulse awards have having a uh one syllabus fits all for the whole of the country. You don't get any uh competitiveness between the states. I I really don't know what uh what federal government can contribute to education . I I I think that's uh been a distorting factor. And that's not a judicial factor, that one, no, there are plenty of distortions from I think unwise judicial decisions, but but this is a political mistake by the federal government in my view. Of both colours. Yes. Um I I I'm sure that's right. I d I don't argue with it. I think that's right. Well you only have to look at the burgeoning uh bureaucracy and and the duplicating uh bri bureaucracies. You're always going to need uh some people to administer affairs in a state. Th there's no need for I don't know how many people work in the education department in Canberra, but uh It's a large number. Yes. Um you know, we've seen a lot of controversy around whether the constitution was fair to indigenous people . Uh and I was intrigued the other day, uh you know, uh a mother said to me my boy was most distressed to learn that um uh in his classroom in a country school in New South Wales that aborigines had been defined under the Flora and Fauna A ct. Didn't specify whether it was a state or a federal act or whatever. Because if you go under the ABC's fact checker, you'll find there was never any such act, didn't exist. But that does beg the question as to the citizenship's uh uh uh uh uh standing of indigenous people in the constitution. That's been something I think that plays on people's minds and I think is often misrepresented. My understanding is that it's sought to be fair and reasonable by uh their understanding of the issues of the day and the complexities of federation. It's uh it's another area where emotions can run away in an age where there's a lack of an understanding of a historical perspective. And I made the comment to the mother, well, your young fellow might like to know that in fact in New South Wales is the biggest state at that time, indigenous men no women had the vote uh at that time in any West ern country, but indigenous men got the vote uh in uh New South Wales two years before America ended slavery. And that's not known. And uh people are genuinely surprised because these things are not brought out. Back to the Constitution. Could you improve it? Any views on what you do, Ma? Anything you could do to improve it? Well we certainly wouldn't be adding a Bill of Rights to it. Because the c the basic problem is that a Bill of Rights there's two engine runes in a Bill of Rights. One is the these abstract principles of freedom of speech and freedom of privacy and freedom of religion, something I've been very interested in, freedom of association and something we have these freedoms, and it sounds wonderful. We all have these freedoms. And then there is a separate the other engine room is but we can limit those freedoms in some fashion, and this is all coming from international covenants, particularly the international covenant on civil and political rights. But as soon as a legislature says you courts must, and this is the proposal, courts must interpret all Commonwealth legislation according to this Human Rights Act. And that human rights act brings in principles from Strasbourg and from New York . So there's a question of ceding of sovereignty in the question of an Australian Human Rights Act, which as I said we may well be debating here. So when we've got these two engine rooms, one's the if I go into a court and I say, Judge, I have a right to freedom of privacy, the judge has to say, got that abstract notion I have to give concrete application to in this set of circumstances before me. So the judge is filling in this broad and abstract principle and applying it and hence making law your state again, right? So this is where Francis Bacon's original idea of the settlement which our constitutional fathers brought on board in their rejection to the Bill of Rights model , being full aware of this, this is where this new proposal that we would would bring on a human rights act really runs contrary. And the other engine room is a limitation, so I claim the right to privacy as a litigant. Well the judge has to tell me what is a reasonable or necessary limitation if the government's intruding on my privacy. So again, an abstract principle that has to have concrete application, hence the judge is determining the content of law. Whereas our common law and our our the uh the English system we inherited is very much that parliamentary sovereignty determines each circumstance as it arises. So the key point to make is in this debate I'm just keen to focus on Big John because it could well be a defining debate of this current term of parliament in Australia. And the key argument that's often made is we don't we're the only Anglophone democracy that doesn't have a Bill of Rights. That's not necessarily a bad thing in itself. Um and the real point to be made is that we do not need to have a bill of rights in order to acquit our international obligations. We can acquit those obligations under the covenants we've signed up to by implementing direct legislation. And an illustration is the UN's um uh human rights committee, they do these periodic reviews of Australia every five years. And in a couple of recent ones they've said you don't have a Commonwealth protection against religious discrimination. And this was a debate that consumed the the last term of Parliament before in the Morrison government, whether we should have a religious discrimination bill . So implementing that bill would actually meet that lacuna, that gap in our current law in our obligations internationally. We don't need a human rights act, which is this abstract broad principles that we must apply to concrete circumstances and hence gift to judges the right to make law . For example, we've got a bill of there is human rights legislation here now . No nobody could seriously suggest that uh Queensland people are more free now than they were before it. In fact, if anything , uh well they're worse off because uh there'll be uh sh there'll be a monitoring of conventional behaviour and uh what will become the norm will be, as you say, Mark, uh something devised by a judiciary. But uh we only have to look at the situation on the ground as it were. Take to New South Wales the recently an injunction uh recently the Supreme Court of New South W ales held that uh uh under the implied freedom of speech that the High Court invented, uh uh people could uh disrupt uh the whole community . Uh y you could uh uh d demonstrate in an intimidatory way outside a synagogue. Uh the the freedoms, in fact, the the t endency of a lot of this legislation is curtailment rather than enlargement of freedom. The point to be made there is that because judges determine that it'll take judges to unwind it. It's hard why can't a parliament unline? A parliament could Yeah, I should write new law. Yeah, exactly. To have turned on sorry, I should really tell. You need a referendum to get rid of the implied freedom that the High Court devised quite unnecessarily and arbitrarily in finding an implied freedom of political discourse. Because practically everything can be characterized in a political way. And and that's the concern. The the things we're talking about here, like rights of privacy, religious freedom, rights of association, they are policy matters that our elected representatives should be determining for us, not unelected representatives that we can't unwind it . Except as you said, through exercise of statutory power, or legislative power I should say. But there are even limitations on that 'cause the body of law, it's not an easy thing to unwind the common law. It's a blunt instrument to incur win with uh legislation No, I'd like to make a point here, John, which is a point I make um in the book somewhat. And it's tracing the thought that, you know, we often say that politics is downstream of culture. But we rarely appreciate and you have done so in the work Jewish Decision and Sing and Commonwealth and others, but so we say that politics is downstream of culture. We don't pick up often that culture is downstream of philosophy and how much the world we live in is contingent in the sense that it didn't have to turn out this way. So we are a liberal uh political democracy, so we are the inherit ors of the liberal tradition, which was in many senses a response to the religious wars and in the sixteen hundreds. And so we had founders like John Locke coming up with, you know, ideas of separation of power and Montesquieu then riffing off that. But the liberal ideal being the idea of autonomy, that my autonomy and the exercise of it is what brings absolute freedom. And that's that idea was a reaction to the political philosophies that preceded it, which were both from the tradition of Jerusalem and from Athens. This is a school of philosophical thought sort of tra cing through Nietzsche um and Kierkegaard that the Western project is can be understood as the merger of two traditions that were opposing, Jerusalem and Athens. That's a Jerusalem being the tradition of love expressed through the Judeo-Christian heritage, sacrifice, service, and then a relation with a spiritual other. Um and then Athens being the tradition of reason and courage. And these two traditions are entwined in what we now live in in a way that is opposing to each other. They actually are irreconcilable. And Leo Strauss's great idea is that has brought about the dynamism of the West . So our current political philosophy, liberal political philosophy, with the curtailing or with the introduction of postmodernism, which I'll mention in a second, is a response to the thought that was common between those two ancient traditions that there is such a thing as a common good and we can hold it together as a polity, a common good can bring a people together, right? So liberalism, if you look at founders like John Locke and um Hobbes, they all say we cannot ascrib toed a common good anymore. We have to throw out that principle. And we have to found a political philosophy on the idea of autonomy, freedom. And then Locke, you know, contributed to that the idea of toleration. Well, this is what um the constitutional founders in the US went about um setting into practice, right? The idea of autonomy as the founding principle for a political philosophy. But in their time they understood, and Locke, Locke was um, you know, he was very much focused on education leading to virtue. And so the founders of the American Constitution well understood if we're going to constitute a republic and remember that was a very revolutionary idea, truly revolutionary idea, 'cause you're in a in a world which is casting against the ancient regime, right? And latter feudalism . So they understood, as Montesquieu understo od, that a republic has centrifugal forces within it which can pull it apart, and it needs a unifying principle. And remember they're positing a republic against monarchical systems, where they're the the unifying principle was the feudal system, the aristocrats, the barons, and so on. So we forget how contingent our world is in many senses, right? This is all the flow of historical effects. Um, but it's also showing that philosophy leads to culture, culture leads to law. So what the the founders, if you look at the Americans, they were very aware of these centrifugal forces that can pull apart a republic. Montesquieu said, Because of that, the only virtue within a republic is republican virtue. So he said we have to enforce unity. And it was actually a subtle critique that Montesquieu was offering in the 1700s . But Rousseau, reefing off Montesquieu, extended that principle to say things like the general will, so to reason, the period of the Enlightenment. So reason, human reason, we have everything in our own capacities to solve every problem that presents to us. So human reason and this is again, this is uh Burke's critique of Rousseau, but that human reason expressed through the general will being the parliamentary will, if a member of our community doesn't follow it, we will impose that will upon them, and we are doing in so doing, we are doing nothing but forcing them to be free. So in this this the the French have taken a particular traverse, and that was Burke's critique, why we need to move from the ground up, not from universal benevolence. So the turning to the American founders, they understood that if we're going to found a principle on autonomy, we must have autonomy exercised with virtue. So Madison, he said that in um he said famously in the Federal's papers 51, he said that if we were uh a community of angels we would need no government. If we were a community that was ruled by angels we would need no separation of powers. But we're neither and hence we need that pulling apart of authority again to check and balance one another. And they also well understood that if there if this autonomy is not accompanied by virtue, this will pull apart the Republic. So it could just can I conclude by bringing it forward the liberal principle into postmodernism. Friedrich Nietzsche, the sort of seminal forefather of postmodernism, he rejected that idea absolutely, that there could be a common good. He he he said famously that, you know, the philosopher, in the in the Greek tradition, they expressed that, Plato certainly expressed that through the fact, and I picked this up in the book, that there is a relation between what is true, what is good and what is beautiful. And that relation can found a community. That's what his republic was. And we can perhaps go in that little further. But Nietzsche reacted against that to say, he said if the fulf the philosop if the philosopher says there is a relation between the true and the good, we will oppose him. If he adds and the beautiful, we will thrash him. And these were the seminal thoughts of postmodernism. Now to come to your question about discrimination law , Solzen itson, picking up on Nietzsche, writing in his Nobel Peace Prize lecture of nineteen seventy, which he couldn't accept because he was in communist Russia . So he had to deliver it by post . He said that the idea that there is no truth, which is the postmodern idea, that and even if there is a truth, we can't apprehend it. That idea, when it's deployed politically , necessarily leads to the conclusion that all that unites us is power, the the the raw exercise of power. Because let me just un explain that for you . So if we do think that there is no truth but for my truth, then nothing is left to me but to ensure that I activate that truth in my world. And to do that is an exercise of power if I encounter someone who doesn't agree with it . Okay . So postmodernism, and this is what Dostoevsky saw, clearly, and this is what Solzhenitsyn saw in commenting on Dostoevsky. So postmodernism leads us to nothing but power. And this is why the postmodern schools are so interested in power, Foucault and and others. Because if I truly believe there is no truth but mine, I have to realize it. Right? To to assure my own integrity. Where this comes to the law, so Dos so so Solzinitz in in his Nobel Peace Prize lecture, he said the idea that there is no universal truth is leading to Dostoyevsky's devils ruling over the world. And I encourage your listenership to read the devils. But and what we are left with is a world that is remmed and brived by power. So post modernism leads to these enclaves where people aggregate around their form of truth and then must assert it. So this is now, I said that philosophy infused is culture, culture and views is politics. If I can just take the illustration of vilification on this is how contemporary these issues are. Um and Charlie Kirk, what's happened there is demonstrating the full realization of these principles, I think, where people, their truth must prevail, otherwise there's a form of harm, if it doesn't. So we now have in Australia a number of proposals in discrimination statutes, which um are sections that regulate vilification. And it used to be that vilification in accordance with the international code. So this is speech that is harmful or abusive to a person. And someone can go to court and say the person who said that harmed me in some way. The international standard, which is in Article 20 of the ICCPR, it says it's incitement to hostility, violence or discrimination. But we have laws now which say that if I am offended or insulted, that is unlawful and I can take you to a court for that. So there's a gran ite dropping of the bar . But the new, more recent proposal is that the determination of who has been offended or insulted is not according to any general principle. It's the principle of the group, the person of which is a So there's there's legislation for the Queensland Parliament which is proposing this at the moment. So to come back to Dostoyevsky and Solzenitsyn, if the idea that there is no truth drives us into these enclaves and we must realize that truth through the just radical exercise of power. This is what the courts are being asked to do through these laws. So the judge is asked to determine whether someone has been offended or insulted according to their subjective will view, the member of that particular group. So what we're leading to is Solzhenitson's picking up on Hobbes the war of all against all through our law. So philosophy determines culture , culture determines law . And I'm sorry, I'm I'm yet to see people that are picking up these threads. sources of this and uh there's something I was going to talk about, uh internationalism. The the way in which we sign up to these inter international instruments. I can't believe it. We don't have to sign up to those sorts of instruments to have a good government in this country and freedom we we never needed it. But we seemed to pick up the pen at the drop of a hat. And y and you had the High Court, of course, uh in T O's case saying in respect of an international instrument that we'd signed up to that had not enacted into law that uh the decision of the the political decision and perfectly correct one for a depot deportation order was invalid because the decision maker hadn't taken into account uh the the international agreement that we'd signed . But but we go beyond that now. We we're enacting stuff into law and once you enact the law of another jurisdiction, you you start following the decisions of that other jurisdiction, so you you're losing a national auto autonomy to and we do it every time we sign an inst ational instrument. We we forfeit some of our national autonomy . You're painting a picture of a culture that has changed massively , and that is playing impacting our politics. Our politics is fractured. People miss this because the Australian community is fractured. with the things that distinguish us rather than the things that we have in common, which I think's particularly unwise at a time, frankly, of international danger. The things we have in common are pretty important. We want Australia to be safe. We w toante bed free and we wanted to be prosperous. And plainly we now have a line against the Spanish people who don't believe in any of those things for us. And they're very powerful and very aggressive. They think we're degenerate and weak and divided and ripe for overtaking. So we've got this very, very fractured politics at a very dangerous time, but you're saying that cultural um radical individualism, for want of a better word, a layman's term, is feeding into on the sort of deify the principle of autonomy. We've got to find measures to curtail that. And this was the great concern of the US founding fathers. This is why they were so focused on virtue. And this concern that the Republic will pull itself apart, which Rome shows Where now virtue is if it's right for me, it's right for me. Quite right. And but we there must be no reference to any exterior No no no calling on exterior reference points. It's all internal. And and this is the this is the the core again a question of philosophy, what defines freedom? And there's a general acceptance that, well should be, the general acceptance that not all exercise of my autonomy is good for me. Right? And and um Kierkegaard says this, will he he he does it through the institution of marriage. He says, you know, marriage is a is a perfect irony that through my self sacrifice, I gain freedom. The commitment to one an another person for all of my life and serving that person, I gain freedom. So that's a it's a beautiful irony. Um but also to come back to your your question, John, of what brings us together, I want to offer a comment on Australia uniquely. Um and it's actually hasn't been picked up that I've seen, but Australia is actually only the only polit ical community on the face of the planet that was founded on convicts apart from Rhone. So the Roman Empire was the only other society founded by convic ts. And um I picked I I drew this this together in reading Augustine's City of God. So his great critique of c city of God, he he the basic thesis, or one of the many thes es, but the basic thesis is that founding myths matter for political societies. So Rome, when Romulus and Remus founded their little village that was Rome,. um Um they realized they need to populate it. So they called out to the surrounding regions, all the criminals, those that are facing you know, punishments, come and and we'll forgive your punishment. But what we will do is we will base our society on the principle of bloodlust and and that will make us the society that will dominate the world in an empire. And so what they did is they called in all the criminals and they realized they needed females. So we then had um the event this is all mythos of course, but well we we think is mythos, but um we then had the event of the rape of the Sabine. So all of these criminals went to the local one of the local villages and carried off all the young women and raped them, and that was the populating of Rome, and that was the founding myth of Rome. So Augustine's great critique of Rome is that founding myths matter, so these convicts founded this community on the principle of bloodlust and overcoming, and that's how we'll get an empire. But if we contrast that with Australia, the only other society that's been founded by convicts, Charles Darwin, of all people, um, had a great insight on the Australian project. I don't know if you've heard this before, John, but in eighteen thirty six he he came to Australia on the Beagle and he travelled around, he went out to Bathurst, I think it was, and he said that there's a remarkable thing happening here. It' Charless Darwin. He said these former vag vagabonds, is the word he used, are being reformed. And there's a founding of a great civilization here. And we remember that of course Lochman Macquarie was quite controversial, one of our first governors, um, in inviting convicts or former convicts to his table. And there was a realisation that practically if we're going to found a community, we need to get people out and deploy them to build this community together. And that's you know we share this settless society with the the Yanks. But um the point being that whereas Augustine's critique of Rome was the the founding myth was this bloodlust , our founding myth was what we now express as the fair go, that people will be transformed. So in the question of what do we have in common, we share that in common today, don't we? Even with multiculturalism. The idea is that if we all pull up and get the elbow grease in, you will make a contribution to our nation. I think it's a it's just not an analogy I've seen drawn between us and Rome as the only two societies founded by convicts, and they both went in very different So move us uh on a bit. Minister Malcolm Turnbull actually publicly said that defending religious freedom was even more, quote, important to him than same-sex marriage. Here we are a decade on, uh, and there's no the parlance have been absolutely unobled to decide. Gridlocked. What does that say? What does it mean? Well well John, I uh was surprised. I think the statistics are that um fewer than fifty Well you know it's going to be very difficult to have religious freedom if there are other religions that uh don't believe in the tolerance of uh of other other religions And and we've got that in Australia, but one's not allowed talk about it . Uh Christians are regarded as infidels by by uh some religious groups. I mean th the y y you can 't talk about Christian beliefs. Uh Jew uh Jewish people will find it difficult when they can't get to their synagogues. And uh we uh uh and and the word patriot today uh is a word that one has to be careful about using. And again is it's this internationalism and uh I think Derrida and the other philosophy is uh yes. You know, my truth, the air truth is the truth, and deconstruct and will construct something in its place. There's a lot to be pessimistic about. As you remarked in singing the Commonwealth, um people like Jacques Derrida who the basic idea postmodern philosopher but applying in linguistics, the idea that a word doesn't have a true meaning because I I the speaker, you know, had a subjective meaning and the hearer I hear it subjectively. You made a comment in this thing in Commonwealth, you know, that words we should not be reinterpreting um in any sense lightly. And you were talking about constitutional interpretation, again , not just dare. But to answer your question, John, um about religious freedom and and maybe perhaps to tie it back into the conversation we had earlier about um our constitutional settlement. So we said that our our founders very much esteem the British heritage. What's unique about the British heritage? People, as I said before, like Montesquieu and many others, what is it this curious English love of freedom? If you're look back into the deep sort of dark mists of time, I d this is again my thesis. I picked it up in the PhD and this is not actually well appreciated at all. And my area is charity law in in practice. So if you look back to the medieval period, um Harold J. Berman, in his masterful law and religion, Harvard Professor, he looks at the separation of powers in the feudal period. Again, there's absolute power, corrup ts absolutely. That there were separate jurisdictions. There were the King's Court, there was the Ecclesiastical Court, um there was the Baronial Courts. Exactly. So this this was the bedrock of our project and and and of English freedom, his love of freedom. So it was a a parcelisation again of jurisdiction where you have these conflicting jurisdictions which overall enhance freedom. So Mc you want to say something? Well you know, the competition between equity and the common law and the equity was based upon Christian principles to a large extent, to a conscience, acted on the conscience. And it was acting on a Christian conscience. Yeah. So this idea, John, of this pulling apart of authority, can I just move forward to at that time the ecclesiastical courts has not actually been picked up. So if you looked at the continental system at that time as opposed to the English, the ecclesiastical court, the court of the church, had a vast uh a g a a much greater jurisdiction down on the continent. So there was this separation of church and state in the medieval sense. So matters in uh concerning wills and estates went to those courts, and matters concerning charity matters went to those courts in a way that didn't happen on the continent. So there was this independence, this strong independent ecclesiastical jurisdiction, which was the church. And moving forward to twelve fifteen, Magna Carta. Judge I noted I don't know if you noted at the celebration, the eight hundredth celebration, I did a piece for can't remember where it was now, but I wrote on um the the fact that the first cause of the Magna Carta was completely overlooked at the time, declares that the English Church shall be free. And what was that annunciating? Recalling that the barons, when they revolted against King John, uh they went to Archbishop Stephen Langton to prosecute the case. So it was the church that prosecuted the case. They all congregated around him, and the first call was that said the English Church shall be free was effectively saying that the king will not appoint our bishops. Um and so we move forward to time of Yesminster. You've seen the Yeah it's uh the one of my favourite episode yes that's right where uh where Fag is absolutely astounded that there is an atheist bishop. Is that right? Doesn't it ? Well uh somebody said he he's uh the Church of England, typical Church of England. Doesn't believe in God. Yes that's right. It's not line. So my point being, John, when our founders in Australia esteemed this English heritage, they were esteeming this independence of the church that was distinct from the continent. Right? And Magna Carta, that was part of that English church shall be free. We will not have kings determine our leadership. And today, effectively, anti-discrimination law is the modern expression of this clash. And indeed SCOTUS the um US Supreme Court cited the Magna Carta's first cause when they determined the right of a religious school to appoint its teachers in twenty twelve in the Hosanna table decision. So these long lasting principles, they continue to apply . But moving forward, coming to our own time, this this idea is very much part of our Australian constitutional heritage. The idea that my religious conviction will compel me to defy tyranny. And the history of the West, I mentioned before that the contest between Jerusalem and Athens, certainly the Jerusalem tradition, there's this idea of the prophets from the wilderness contesting with secular authority because my conscience compels me to do so. So the the High Court said in the famous Scientology case decision in nineteen eighty three, our Australian High Court, Mason and Brennan, they describe religious freedom as the paradigm freedom. It's a bit like the chimary in the coal mine. You know, it's a base rock freedom. And if we can't express our conscience against tyranny, you know, that's uh they are saying because it's the paradigm freedom, that has effect for all other freedoms, as you said, your question. Can I then, as we seek to wind up , come rather late to uh the book you've written, um Beauty and the Law uh if uh if if John Rawls spoke of justice as as fairness, you're implying that beauty might be fairness. What's the thesis? Tell us. Okay. Okay. So I want to not be too abstract for your listeners. So I'm gonna be as concrete as I can. So there is this idea again running through the tradition of Jerusalem and Athens that beauty is in commun ication with other forms of truth and what is the good. And it comes from Plato, that idea. And when what do I mean by beauty? I'm thinking, for example, it's it's that which is lovely uh and an illustration is I some years ago when my daughter was two, we were here in Brisbane where I used to live, um, on the Kangaroo Cliffs, and it was sunset , and the sun was setting and it was lighting up the river below us and the um the buildings or the windows of the buildings. And I picked up my two-year-old daughter and I said, Look, darling at this, and the look on her face was one of absolute amazement as a two-year-old. And she was communing with something or something innate to her was appreciating something beyond pure materi ality. And if I can express it this way, Wordsworth and Coleridge. They you might have heard of this C. S. Lewis's famous um illustration. So Wordsworth and Coleridge, the two poets are going for a walk together and they come across a a waterfall. There's two tourists at the waterfall. And one of the tourists says, Isn't it pretty? And then the other tourist says, No, it's sublime. And Coleridge agreed with the assessment that it's sublime, meaning that it's in communication with something that's beyond the pure material. And so the Enlightenment told us there is nothing but science, pure materiality, and the romantics responded to that, to say no there is something more. And indeed , when as I said earlier, Nietzsche said, if the philosopher tells us there's a relationship between what is true and what is good, um, then we will oppose them, but if they also add what is beautiful, we will thrash them. And again, as I said, that's the seminal thought of postmodernism. So what I'm doing in the book, I'm exploring how is it that C. S. Lewis, he said, he summarized it this way, the nature the nature of beauty. He said, after the sunset fades, thinking of my daughter again, after the symphony ends, we have this moment of illusion, sometimes he calls it, wherein we're communion with the eternal. We know that there is something more than the material. And Roger Scrooge and the English philosopher describes it as, you know, beauty makes us feel at home in this world. So it's the acknowledgement that when I see something beautiful, there's something sublime in that. It's in a communication with something that's true and good. And Christ, Jesus Christ, when so that idea of true good relations from Athens, from Jerusalem, Jesus, you might recall when the woman shortly before his crucifixion poured burial oil on his feet and she was reprimanded there was un discomfort there from those in the room, 'cause apparently it was socially inappropriate. Jesus said, Do not reprimand her, leave her alone. She has done a beautiful thing. It's the only time he used the word beauty in the Gospels with meaning. And the word he uses is the Greek word for beauty. And what he's saying there is she has done something that is in communion which with if he's using the Greek notion, and we can't be ser certain of that, but if he's using that notion, he's saying she has done something that is in communion with what is eternally fitting and good for this moment . She alone saw what's coming this week, this weekend, which was his death. between what's beautiful and what's true and good, and Nietzsche sets himself up against that. So what I'm exploring in the book is what does the law do with these great philosophical undercurrents? And if I might if I might say, you know, um there's there's a religious element to this . So Harry Styles, I mentioned previously that um, you know, politics flows from culture, but culture flows from philosophy. Harry Styles in his um one of his current hits, and I know this because I've got teenagers, but one of his songs is, in this world, it's just us. You know it's not the same as it was. And he repeats that on and on. In this world, it's just us. You know it's not the same as it was. That's a claim of philosophy. It's a claim of postmodern philosophy. Is basically saying God is dead and we killed him. But he goes on in the same song to say here and he gives us, whether he's conscious of it or not, he gives us a case study in where postmodernism goes. The idea that I have no communion with something that is other than the material. I am just materiality, pure materiality. Um he says I'm sitting alone, no one's calling, my dad's not calling, I might as well just pop another p ill. And that's what's been fed into our children's minds at the moment. In this world, it's just us. You know it's not the same as it was. And so Kierkegaard, he set himself up against that idea. If I can just conclude with him, Kierkegaard, so he said that if it truly is that this world is nothing but a brief moment in time, a material moment where I exist and then I collapse into this void that is inescapable, a giant moor of a beast he calls it, into which I escape, then we have nothing left to us but despair. And that's what Harry Stiles is is giving us in that perfect case study of postmodernism's effect. But then Kiku ga goes on and he says this is why it is not despair. This is why because, God gave us the poet, the orator, and the hero. So what Kierkegaard's claiming back against materialism and back against the Enlightenment and back against postmodernism is that the poet will declare beauty to us. And it's interesting, the notion of beauty has tripped up many philosophies uh through the Western intellectual project, um, postmodernism certainly being one as I've just been describing. We might also say Kant's theories were tripped up by beauty. So he Kant also said he was the Nietzsche called Kant the great delayer, because Kant said we can't actually know absolute truth. We just must proceed on the basis that we can't. But he then said an aesthetic sense is available to all of us, so we can all appreciate beaut y. And that was revolutionary at the time. Prior to that, beauty was the sole preserve of the nobility. And that thought the French Revolutionaries put into practice, this is how philosophy feeds into practice again, by establishing the Louvre , the first ever publicly available modern gallery. So can't he admitted there was an aesthetic sense that was universal to everyone, but he said, But we can't know absolute truth. So beauty's tripping him up. And maybe if I just conclude with this, Solzhenitsyn also said that through the works of the likes of Tolstoy and Dostoevsky, the Soviets banned the gospels and the reading of the Bible, for example, but they could not ban Tolstoy and Dostoyevsky. And so what Solzanitsyn said again in his Noble Peace lecture, and I explore this in the book, he says that if those three great trees of the good, the true and the beautiful, which are in relation, so the sunset tells me there's something more than me, and it's in communion with what is eternal is the idea. Right? And postmodernism is the antithesis of that idea, as Nietzsche says. So Solzhenitson says if the two trees of the true and the good are stifled in their growth, then perhaps beauty will prevail and rise above to reveal all three to us. And he is saying that and he was in the Soviet system at the time . He was saying Dostoevsky and Tolstoy will continue to declare to us what is true and good through beauty, through literature. So John to summarize, what I'm doing in the book is answering what does this mean for the law? And I argue that the law enters into these debates between postmodernism and liberalism and beauty and true and the good, and declares on the side of a relation between beauty and the true and the good. And I explore that in various areas of law, charity law, planning law and the criminal law. And maybe I'll just finish with the criminal law. So what I say, and I'm I'm taking a comment from Tom Bradbury here in the Supreme Court. Tom Bradbury said recently at the Samuel Griffith Society lecture that the courts have been administering disputes well before liberalism, well before postmodernism. And we're concerned with two things: what happened and who did it effectively. And what I say in the book is that in our judicial system, that harnesses the inside of postmodernism. Because there's a kernel of truth in all philosophies that have prevailed in the way that postmodernism has. So the kernel of truth is that I experienced this event, which I am seeking justice over, according to my subjective worldview. And the respondent experienced it according to their subjective worldview. Postmodernism says everything is subjective, we can't know truth. So those two truths are brought to the courtroom. But the court prevails against postmodernism, I say, because it takes that truth, harnesses that truth, and declares in response to the claim of injustice that there is such a thing as justice, and we will declare it Well what you've said is right in the sense that the courts do search for an ide al and an ideal of justice. Even though we can't always know what is the right result. But it's a it's touching upon what else you said, um it really is a presumption to think we can know absolute truth and absolutely everything was simply a presumption . And the other thing it touched upon that that uh approached to what you believe in, unless you believe in beauty and related things , really uh you are they use John Bunyan's words in Pilgrim's Progress, you're in a slough of despond, I think. Is that the phrase? I don't know it was . You know, i it is despair. I i is it right that uh I I'm not Catholic, but Catholics believe that despair is a seed. I don't know, I'm not a Catholic I it's certainly to be it'd be deplored, I think . So if everything's a futility uh what's it matter what you believe or what you do? You don't believe in something, you believe in nothing. Well this is what I'm endeavouring to claim back against postmodernism in the book. Well, we've had a very interesting conversation. Ian I know because a couple of them have told me that young people have drawn on you as a mentor uh as they've considered their legal careers. What do you say to a young person who comes to you and says, I want to make a difference ? Can I do it through the law ? Well, I I I always say to them, uh don't lose uh your idealism . But you'll have to be pragmatic on occasions, but but don't l don't whatever you do lose your idealis m. Uh there's still uh and be proud of what you do. Lawyers are not well regarded, in fact they rank fairly low, I think, and whenever they talk about uh take polls upon trust. You know, you w what you're doing is very useful. I I can remember I had a particularly good master when I started at the bar and uh he was a very moral man and uh he, I think, I'd like to think, instilled in me the idea that uh we we were instruments of justice even as a barrister, and we had to be rest rained, we had to do the best we could for our clients, but within well defined uh boundaries and morality and propriety and courtesy were critically important Thank you both very much.