9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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THE SEARCH FOR PERFECTION AND THE LAW

The Hon Justice Michael Kirby AC CMG *

A Caravan Of Anniversaries

This is the anniversary of the day on which, three weeks ago, I set out down the Champs Elysées in Paris. The cavalcade of vehicles left the headquarters of UNESCO and moved relentlessly towards the Elysée Palace. At the bottom of the magnificent promenade that leads from the Arc de Triomphe, the cars swung to the left to a street near the Palais Royal towards a courtyard familiar from the television. There, outside the residence of the President of the French Republic, the vehicles pulled to a halt.

The participants walked to the staircase lined with French soldiers, standing at attention in a triangular format, wearing the ceremonial uniforms of the republican soldiers of France. Into the Palace we moved - a place of chandeliers and glass, of marble and crimson curtains. There in a grand ballroom we waited the arrival of Jacques Chirac, President of the Republic. But you must be patient. Before I tell of the reasons that had brought us to his presence, I must go back to other anniversaries in other times and other places.

Exactly fifty years ago at this moment, Queen Elizabeth II was preparing to depart from Buckingham Palace on the journey up the Mall to Westminster Abbey to be crowned Queen. It was a somewhat dull and rain-swept day in London. But nothing could dampen the enthusiasm of the crowds waiting to cheer the young Queen and Head of the Commonwealth. It was virtually at this time, in advance of the commencement of the Coronation ceremony, that two of the greatest exponents of the English language took to the airwaves on the BBC. One of them was the Australian Prime Minister, Mr Robert Menzies. Whatever differences existed in Australia about his policies, no Australian questioned his command of the language. His speech, for the nations of the Commonwealth, was an outstanding one. But even it was eclipsed by an example of perfection joined together in history and language in the person of the Prime Minister of the United Kingdom, Sir Winston Churchill.

I remember as a young boy sitting by the radio (for there was no satellite television in those days) listening to the old warrior leader announcing the beginning of a new era: "Great have been the reigns of our Queens". Note that Churchill did not say "The reigns of our Queens have been great". His poetic sense demanded a juxtaposition of the adjective. It sent a thrill across thousands of miles to his youthful listener. In those days we relied on our imaginations to conjure up the scenes and images of a ceremony of a thousand years as Queen Elizabeth prepared to dedicate herself to her duties.

A few days earlier, another moment of perfection had arrived with the banner headlines "Britain on Top of the World". Edmund (immediately to be Sir Edmund) Hilary and Tensing Norgay, his Sherpa guide, became the first humans to reach the peak of Mt Everest, the highest mountain in the world. It was an achievement of human courage and determination. In terms of mountain climbing and, indeed, the struggle between man and nature, it was another moment of perfection. Tensing is no more. Everest is littered with the debris of later climbers. But Hilary and Tensing were first. And last week Sir Edmund Hilary, the New Zealander, returned to Mount Everest to remember the event of which he was a central actor fifty years ago.

As the Queen entered the Abbey, the choir struck up the thrilling sounds of the traditional anthem I Was Glad, with music by William Byrd. If ever there was a moment of musical perfection, in the combined force of language, sound and circumstance, this was it. Followed quickly by Zadok the Priest and the Coronation Anthems of Handel, it heralded intense moments of musical and spiritual perfection. Anyone of my age who listened, and so participated, in those hours fifty years ago has an indelible memory of them. In the fifty years since, whatever one's constitutional views, it cannot be doubted that the young Queen has faithfully kept the promises she made that day.

One of Queen Elizabeth's ancestors, King George III, was not so careful in his performance of the duties of a modern monarch. In fact, the errors of his reign were directly linked to the establishment of the Australian colonies. But for the loss of the American settlements in the Revolution of 1776, it is unlikely that the British would have had the motivation to establish their penal settlements around the coast of New Holland. The Australian continent, like all the rest, would probably have been settled piecemeal by European nations. Instead, we who come from Australia to Greece live in the only continent on earth that is governed under the one Constitution, speaks the one language, shares (substantially) the one set of civic values.

Centenary of the High Court Of Australia

The Constitution of which I speak was created and took effect a little more than a century ago. But 2003 is yet another anniversary. Fifty years ago this October, the High Court of Australia was established with a sitting in Melbourne on 6 October 1903. The hundredth anniversary of Australia's apex court is another occasion to remember. The countries of the world that can boast a similar constitutional stability and a century of independent, uncorrupted, able judges, can be counted on the fingers of two hands.

Recently, the Chief Justice of the United States remarked on the inventions of the founders of the American Republic and of the influence that their quest for a "more perfect union" of governance has had throughout the world. Those founders have often been described as he most wise exemplars of democracy since the times of the ancient Greeks. Of their five inventions, most have been followed by the nations established since 1776. Most of them (but not yet Australia) have followed the republican form of government. And yet, in essence, the Australian governmental system is one of republican substance in a monarchical form. The written Constitution adopted at Philadelphia is the unquestioned model for the Australian Constitution. The federal structure there espoused is the model for our federal government, and for many others since. The establishment of a national court with the unquestioned power to arbitrate the great constitutional issues is one that we have copied from the Americans who went before. Only the fifth invention, that of an Executive President, has not gained wide acceptance throughout the world. In truth, when we look on that less than perfect attribute of government - concentrating so much power in the hands of a single individual - we see continuing reflections of the monarchy of King George. Our governmental system may have its faults; but they are more easily and swiftly corrected than those of the Executive Presidents of the American type.

In the fifty years since the establishment of the High Court of Australia, there have been moments of failure and others of banality and indecision. But when the tests have really been important, the High Court has served the Constitution and the people of Australia well. Sometimes its decisions can be described as attaining as much perfection as the law offers.

One such moment, which I would regard as one of the highest pinnacles in the century of the High Court's work, occurred in 1951. The Menzies government came to office in 1949 with a mandate to respond to the perceived Communist threat. The Communist Party Dissolution Act was passed through the Federal Parliament. Its validity was immediately challenged in the High Court. By six Justices to one, with only Chief Justice Latham dissenting, the Court upheld the challenge of the Australian Communist Party to the validity of the law. It struck down the attempted parliamentary dissolution of the Communist Party and the attachment of civil penalties to its members and affiliated organisations [1]. It was a marvellous moment in our constitutional life. Without a written bill of rights, the entitlements of freedom of speech and freedom of assembly were upheld. Moreover, they were defended in the face of widespread electoral support for the efforts of the Menzies government. That government immediately took a proposal to the electors to change the Australian Constitution by referendum to ensure the validity of the ban on the Communist Party. Boldly and bravely, but by a whisker, the Australian people rejected that attempt. This was another near perfect moment in Australia's constitutional story. Nowadays few, if any, would defend the attempt to ban the Communist Party - just as few, if any, would defend the earlier endeavour of the Chifley Labor government to nationalise the banks. With the years come wisdom. But of political leaders great wisdom is required at the time of the happening of events. Such wisdom rarely arises out of the numbers of opinion polls or the imagination of political spin-doctors.

A brilliant addition to the Australian Constitution was insisted upon by our founders. It was the inclusion in the powers of the High Court of Australia of a jurisdiction to grant constitutional relief against officers of the Commonwealth whose conduct, or failure to act, amounts to a misuse or neglect of their powers and jurisdiction. This is the provision of section 75(v) of the Constitution. It may be little known outside legal circles. Yet it is a crucial provision of Australia's constitutional charter. There is no exact equivalent in the constitutions of the United States, Canada or many other lands. It was the provision, assuring direct and immediate access to the High Court, that was invoked by those who successfully challenged the validity of the law against the communists.

No Black Holes of Law and Justice

As we look, in contemporary circumstances, at the detention for many months without trial of Australian, British and other foreign prisoners in the United States Naval Base in Guantanamo Bay in Cuba, we can at least reassure ourselves that such an apparent immunity from accountability to the civil courts could not occur Australia. So long as officers of the Commonwealth were involved in the activities impugned before the Court, the constitutional provision will render them accountable, wherever they may be. When called upon, they would have to answer to the Constitution and to the rule of law that it enshrines. This is an important attribute of our Constitution. It is precious and it is the duty of the High Court of Australia to maintain and safeguard its effectiveness [2].

Each year I am privileged to attend a conference on constitutional law at Yale Law School in the United States. Present are judges from other apex courts throughout the world. Lord Chief Justice Woolf is there from England. So is Justice Breyer of the Supreme Court of the United States. So is President Aaron Barak of the Supreme Court of Israel.

At the meeting in September 2002 some of the foreign participants referred to their anxiety about the Guantanamo Bay position. Naturally, Justice Breyer said nothing for that question may one day come to his Court, brought by a party with appropriate standing to raise a challenge to the immunity claimed by the government of the United States from legal accountability for things done to alien prisoners in that place.

Lord Chief Justice Woolf spoke of the principles of administrative accountability developed in recent times by the English courts. I described the principles enshrined in s 75(v) of the Australian Constitution. But the most telling comment was made by Justice Barak. Spare a thought for a judge, sitting in an ultimate court, whose duties must be performed in the midst of dangers and conflicts and high passions.

Justice Barak added his expression of concern about the claim that the aliens detained in the United States military facility in Guantanamo Bay were outside the legal supervision of the courts of the United States. He had reason to know the dangers that unaccountable power can produce. As a child, he had only survived the Nazi invasion of his homeland, Lithuania, when he was hidden in a hessian bag and smuggled out of danger. Ultimately, he found his way to Israel where he now presides over the Supreme Court.

The lesson that Justice Barak urged from his life, and that of his people, was, as he put it: "There must be no black holes". He pointed out that Nazi Germany was truly a land of laws. There were laws about everything. They controlled the minutiae of daily life. But in respect of certain critical matters there were "black holes". These were the places where the law did not run. These were the segments of life where the courts were powerless. The rule of law was silent.

Justice Barak described an urgent application that he had recently heard as duty judge one Saturday in Jerusalem. A telephone request was made for an immediate injunction to prevent officials of the Israeli government from expelling to Lebanon a group of Palestinian prisoners. On their behalf, a lawyer claimed the protection of the law of Israel. There must be no black holes.

The bus carrying the prisoners was on its way to the border. Israel is a small land and the journey would be completed in half an hour. The legal arguments were put. The Israeli Court was urged to keep out of the business of government. There must be no black holes. President Barak issued an interim injunction. The Israeli government and its officials obeyed. The bus turned around a few kilometres from the border. The prisoners were brought under the supervision of the courts. The government and its officials were rendered answerable to the rule of law. There must be no black holes.

In Australia, in respect of the conduct of federal officials, there need be no black holes. The Constitution safeguards us from whatever may be seen as the defects of its American predecessor. In our constitutional quest for perfection, we have surely fallen short of the ideal. It is very difficult to change our constitutional text. But in the protection that is given, including to minorities that are sometimes unpopular - communists, refugees, homosexuals and others - those who serve the Commonwealth must always be in a position to justify and support with law their use of coercive or other powers. In this respect, there are no black holes.

Perfection and the Genome

Whilst the preparations for the Queen's Coronation were being carefully prepared by the Lord Chamberlain, and the Queen was learning the words of her Coronation Oath by which she promised to uphold the laws and constitutions of her peoples, another event of great significance was happening in Britain. This was the discovery at Cambridge earlier in 1953, of the structure of the basic molecule of life: DNA. The two scientists at Cambridge who were the first to describe that structure were the American James Watson and the Englishman Francis Crick. Working in the famous Cavendish Laboratories at Cambridge they came to realise that the medium by which characteristics are passed from one generation of a species to another is arranged on a double helix. This structure was described in February 1953 in the scientific journal Nature [3]. It was truly an astonishing moment in mankind's quest for perfect knowledge of the world and how it is made up. Amazingly enough, the significance of the discovery was not at first realised.

The story of the discovery of the structure of DNA by Watson and Crick is like a scientific detective story. In the United States, Dr Linus Pauling, one of the greatest minds of the twentieth century, had already made an important breakthrough in describing the structure of the molecule keratin. He conceived the structure of DNA as a triple helix. Watson and Crick knew this was wrong. In part, their insight in this regard came from viewing a radiograph taken by another distinguished scientist, Rosalind Franklin working in laboratories of the King's College in London. When Watson saw Franklin's famous radiographic image, he knew at once that the triple helix was inaccurate. This confirmed the postulate that he and Crick had conceived that the genes were arranged on a double helix. The publication of their discovery ultimately produced a revolution in biology. It will also have profound effects on the law and on society.

One result of the realisation of the structure of DNA was the institution of a global search for the identity of the genes that determine the elements of all living matter. In turn, this search produced an extraordinary cooperative effort of scientists throughout the world in the form of the Human Genome Project. By 2001 the first provisional draft of the human genome was completed. Initially it had been thought that there would about 100,000 genes. It is now known that the number is much smaller: approximately 30,000. The most extraordinary discovery is that the differences between the genome of human beings and the higher forms of animal life, especially the chimpanzees and great apes, is tiny. Those species share about 95% of human genes.

The meeting that had taken me to Paris and my encounter with President Chirac was a meeting of the International Bioethics Committee (IBC) of UNESCO. This is an international body, which is engaged in many of the legal, ethical and social issues that arise from the advances in biological knowledge. In 1997, as a result of the work of the IBC, the Universal Declaration on the Human Genome and Human Rights was adopted. In 1998, that instrument was unanimously endorsed by the General Assembly of the United Nations. Yet it represents only the beginning of a legal response to the puzzles of genomic science. Now the IBC must try to find common ground for responding to the many urgent problems that are presented by the Human Genome Project:

  • Should it be lawful to patent a genomic sequence, or is this a "discovery", not an "invention" warranting, as such, no intellectual property protection?
  • Should employers, insurers or the state be entitled to access to one's genomic data or should such data be protected as private and if so with what exceptions?
  • Should it be lawful to eliminate certain genes from a human being and if so according to what principle and with what exceptions protective of the diversity of the human gene pool?
  • Should it be permissible to manipulate the genes of future generations by interfering in the "germline" or should genetic alterations be restricted to living individuals?
  • Should transgenic experiments involving the growing of human organs in other animals be permitted or does this open the way to the viruses of other species in respect of which humans have no established immunities?
  • Should therapeutic and reproductive cloning of the human species be permitted or prohibited and if so according to what principle?

Needless to say, it is extremely difficult to secure agreement between scientists, lawyers, ethicists and governmental officials on these and the many other problems that bioethics must now tackle. The difficulties can be traced, in part, to economic advantages that many feel will attend the advancing knowledge about human, animal and plant biology and the enlarged capacity of our species to control and direct its future and the future of the environment. But in addition to economics, there are moral and ethical questions about which there are deep divisions in human society. Some of these divisions can be traced to religious doctrine and upon them religions rarely speak with a single voice.

A good illustration of this may be found in the use of embryonic stem cells, thought by scientists to be specially useful because of the capacity of such cells to adapt to different functions, as needed, in the human body. Some branches of Christianity teach that human life begins at the moment of conception and thus demand that all experiments with embryonic cells must cease. Judaism generally recognises that the embryo is entitled to protection after 28 days. Most branches of Islam accept that "ensoulment" of the human embryo occurs after three months. Hinduism and its related religions affords protection to the foetus only after birth. Similar divisions exist in non-religious philosophies. Where the world speaks with so many voices, it is difficult indeed to secure legal agreement. Yet to prevaricate and to do nothing is to make a decision. It is to accept that scientists can proceed with their experiments without the control of human institutions and values.

Law and our Future as a Species

So this is what I was travelling to the Elysée Palace to say to President Chirac. He was ushered by his minders into the Grand meeting room. We, the members of the IBC, stood and he walked around the table greeting us each individually. Here was a politician with an appreciation that the issues of biotechnology and of bioethics were important political, economic and moral issues. For him, this was not simply a matter of lobby groups and special interests. For President Chirac, this was a central point of what contemporary politics was about.

He sat at the table and I saw his keen eyes flicking from the list of the names of the participants to their faces and back again. He began with words of welcome to the Director-General of UNESCO (Mr Kiochiro Matsuura) and an insistence that our meeting was not ceremonial but a working session for the exchange of ideas. I wondered if a similar meeting would take place with a Head of Government and Head of State in an Anglophone country.

When it came to be my turn to speak, I congratulated the President for his interest in the topics of the IBC's concern. These truly are the concerns that stretch beyond three years or five years or eight years of political office. These are the concerns of a troubled century with many other problems to distract political leaders.

To reassure the President that he had correctly perceived an important topic, I drew to his notice an article published earlier in the month by Sir Martin Rees, Royal Society Professor at Cambridge, Fellow of King's College and Astronomer Royal of Great Britain. Writing in the New Scientist [4] on "The Final Countdown", Rees argued that the advances of science of our time present crucial challenges to human values. Unless those values could be assured, and effectively and safely protected in certain actual and potential technologies, a real issue was presented as to the survival of the human species.

In short, Rees asked the question whether, by the inventiveness of the human mind, we would reach a point in the evolution of the human species in which it would be empowered to destroy itself.

Clearly, the splitting of the atom and the advances of nuclear physics in the twentieth century, the development of weapons of mass destruction and the armourments of war has put into the hands of humans one means of obliterating the species from the earth. That would truly be a development of evolution that would be show that the human species had been flawed. Rather like the dinosaurs that eventually outlived their capacity to exist on earth. Must it be so?

It is not only nuclear and other weapons of mass destruction that worry Rees. In his writing he mentions also the advances in robotics with capacities of artificial intelligence destined soon to surpass that of humans. He describes the concerns attending the "Promethean" creation of "quark matter" - the result of crashing together atoms of lead or gold with a consequent compression converting them into a form of matter that may only have existed in the first microsecond of cosmic history. Yet most of Rees' attention is addressed to biological developments and the acceleration of experiments without appropriate controls upon the humans performing them.

These thoughts were fresh in the minds of the IBC members as they looked across as President Chirac in his palace. On the preceding day, the IBC had been addressed by one of the leading genomic scientists of China, Professor Henry Yang, concerning the developments attending the SARS outbreak in that country. When asked about the causes of SARS, Professor Yang had identified four possibilities - one of which was a man-made catastrophe. The jumping of viruses from one species to another is an urgent problem. It takes on an urgency as scientists jockey to mix the cells of different species.

In relation to these concerns - which lie at the heart of the future challenges of science and technology to our legal systems - or even to the very notion of law - Sir Martin Rees has some cautionary words to say:

"We now face some difficult decisions. In view of our current scientific and technological capacities, what is the safest and most responsible way to develop them further? Humanity is more at risk than at any earlier phase in its history, and this is a critical time. Our future as a species may depend on the choices we make in the next hundred years".

President Chirac called for a copy of Rees' article. These are not the views of an eccentric scientist on the fringe of science. These are the views of a man at the very heart of the scientific establishment. They are not to be mocked but thought through carefully. They are not the entertainment of Matrix. They are the business of the future of law and governance and the human species.

In the quest for scientific perfection we must assure the survival of human dignity and human rights. Yet the role of human beings in the future of our planet is an issue that demands technical, political and popular consideration. It is complicated. But for the sake of the species we must find ways to tackle these problems quickly and effectively.

A Kaleidoscope of Ideas

I come to the end of this kaleidoscope of ideas. I have followed the thread of Ariadne to lead me through the maze. I hope, like Theseus, I have avoided the Minotaur. The quest for perfection is the product of an evolutionary human desire to improve the species and the world. It has produced reassuring institutions, as I believe the High Court of Australia is. It has produced strong constitutional and legal principles. It has given rise to wonderful moments as perfect as humans can make them, such as the ascent of Everest and the choir bursting into the anthem at Westminster Abbey. It has produced astonishing discoveries of science and marvellous inventiveness. But it has also produced many puzzles and dilemmas, wrongs and dangers. A number of them challenge the future of law.

Looking out at the blue Aegean in Rhodes we may be tempted to think that the moments of perfection are accelerating. But the truth is that the moments of challenge are coming thick and fast. In the midst of daily cares, it is easy to miss the horizon in a natural concentration on the problems of the moment that we can readily resolve. The advantage of a conference such as this is that it takes away from our daily cares and responsibilities. It requires us to look further, far beyond the horizon. And to contemplate how our society, its laws and our world can cope with the search for perfection as it takes our species into new and unknown times.

* Justice of the High Court of Australia.

1 Australian Communist Party v The Commonwealth (1951) 83 CLR 1.

2 cf Plaintiff 157/2002 v The Commonwealth (2003) 77 ALJR 454 at 473-474 [98]-[104].

3 J D Watson and F H C Crick, "A Structure for Deoxy-Ribose Nucleic Acid" (1953) 171 Nature 737.

4 New Scientist, 3 May 2003, 30.

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Copyright 2003. Greek/Australian International Legal and Medical Conference.
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