Diocesan Newsletter

Annual Law Service

On the 19th August, Bishop Michael hosted the annual Law Service at St Joseph’s Cathedral and was joined by other denominational pastors.  Fr Frank Brennan SJ AO presided for the celebration.  The service was attended by the honourable Chief Justice Bowskill, the honourable Justice Crow, Magistrates, Members of the Rockhampton Bar, Members of the Central Queensland Law Association, Members of the Queensland Police Service, Corrective Service Officers and others associated with the Administration of Justice in Queensland.

Fr Frank is familiar with Rockhampton.  His father, Gerard Brennan, grew up in Rockhampton and went on to a distinguished law career, finally seeing him in the highest legal office in Australia: Chief Justice of the High Court of Australia. Following is Fr Frank’s homily for the celebration.

The Homily

2 Corinthians 4:7-15; Psalm 71; Matthew 20:20-28

It is a great privilege for me to be invited to deliver the homily at this annual law service in Rockhampton where my grandfather after whom I am named was the resident Supreme Court judge for 22 years from 1925 – 1947. Rockhampton was home for my father all the years before he went to university. It was here that my father was first introduced to the law.

The Saturday before last, I had cause to reflect on one of the key moments in my father’s life in the law. I attended the rugby at the Suncorp stadium in Brisbane. The Springboks were playing the Wallabies. They thrashed us. I found myself amongst a crowd of South African supporters. There they were, black and white together, cheering on the Springboks, black and white together, on the field. In front of me were six black South Africans, some of whom had travelled all the way from Darwin. They were so happy and so proud of their team. Last time I was in Brisbane when the Springboks played was in 1971. I was a first year law student. The scene was so different. The premier had declared a state of emergency. The Springbok team was all white. No blacks allowed. Apartheid was the order of the day. The clashes between police and demonstrators were nasty. The Vice-Chancellor of the university Sir Zelman Cowen oversaw a group of us law students as legal observers.

My father had recently returned from the 16th Legal Convention of the Law Council of Australia held in Melbourne. Opening the conference, Lord Diplock had said: ‘The common law works empirically and works mainly by nudges. It is not often that one gets the epoch-making case, it is not often that the opportunity occurs of saying, as Lord Mansfield could, “the air of England is too pure for any slave to breathe, let the black go free.” There are great opportunities from time to time – Donoghue v. Stevenson, Hedley Byrne, the Dorset Yacht case. But in so many more there is the opportunity of giving a little nudge which sends the law along the direction that it ought to go, the opportunity of saying what the law ought to be.’

Dad was vice president of the Queensland Bar. Giving things a little nudge, he wrote a letter to the editor objecting to the tactics being adopted with the declaration of a state of emergency permitting the trouble free playing of a rugby game by the all white Springbok team. That night he came home and told Mum and me that he had been confronted at lunch by one of the doyens of the Queensland Bar, who told him: ‘That’s it, Brennan. Now you’ll never be a judge.’ He matter of factly said to us: ‘Well so be it.’ But that wasn’t it at all. Within a decade he was a Justice of the High Court of Australia. In the spirit of our first reading from Paul’s second letter to the Corinthians, my father, like all of us back then in 1971, was surrounded by difficulties on all sides; but he was never cornered. He saw no ready answer to the problems of apartheid, sport and politics, but he did not despair. He may have faced a touch of persecution from the legal establishment for his views or indeed for having been his father’s son, but he did not feel deserted.

Eleven years after his appointment to the High Court he wrote a judgment which fell into the Lord Mansfield class of decisions – the culmination of many nudges by many lawyers and Aboriginal advocates over the decades. Just this month the Solicitor General of the Commonwealth in his submissions to the High Court of Australia described the main decision in the Mabo case as ‘momentous’. He said it is ‘the greatest judgment of one of the great Judges of this Court, Sir Gerard Brennan’. In the light of today’s gospel from Matthew, we might say that this proud son of Rockhampton was no son of Zebedee. He had no mother or father to push his cause for judicial preferment. He came to serve.

When he took the oath as Chief Justice of Australia, he reflected on the promise to ‘do right to all manner of people according to law without fear or favour, affection or ill-will’. He said this oath ‘precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be. It forbids any judge to regard himself or herself as a representative of a section of society. It forbids partiality and, most importantly, it commands independence from any influence that might improperly tilt the scales of justice. When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with the law. That is the way in which right is done without fear or favour, affection or ill-will. Judges sometimes appear to be remote, belonging to what have been described as “the chill and distant heights”. In the doing of justice that must be so. Justice is not done in public rallies. Nor can it be done by opinion polls or in the comment or correspondence columns of the journals.’

As a nation, we are still emerging from the scarring and divisive effects of last year’s referendum on the Aboriginal and Torres Strait Islander Voice. The national 40:60 defeat, and the overwhelming 32:68 defeat here in Queensland, has left many First Nations Australians feeling cornered, despairing, deserted and knocked down. And who can blame them? So I ask of you, the legal profession: Did we as lawyers do enough to warn about the folly of a constitutional referendum without a people’s convention, without a constitutional commission, without a parliamentary process designed to win bipartisan support?

We lawyers know that we won’t ever amend the Constitution unless we first get most members of parliament on board, and unless we can assure the public that there is nothing to fear, and that there is no unresolved legal complexity and uncertainty. That’s the case whatever the subject of any proposed amendment. And when it comes to amending the Constitution to recognise the First Australians, there will be no point unless the key Indigenous leaders are advocating the change with one voice. Though they were devastated by the 2023 defeat, these leaders had sufficient hope to declare in the midst of their despair: ‘We have faith that the upswelling of support through this Referendum has ignited a fire for many to walk with us on our journey towards justice.’ We need to kindle that fire and continue that long journey.

Together as judges, barristers, solicitors, police officers, corrective service officers and administrators of justice, as the little nudgers of law and justice, we pray with the psalmist:

O God, give your judgement to the king,
to a king’s son your justice,
that he may judge your people in justice
and your poor in right judgement.

For he shall save the poor when they cry
and the needy who are helpless.
He will have pity on the weak
and save the lives of the poor.

Listen at https://soundcloud.com/frank-brennan-6/rockhampton-law-service