ETHICS AND THE LAW

WEEK 2 TUTORIAL
1. View the report about Baby Asha from the Drum (introduced in
the week 1 lecture) at
http://www.abc.net.au/news/2016-02-23/the-drum-tuesday-february23/7194090
(locate the recording from approx. 15-21 mins

2. Read the following article and answer the following questions:

a) Who are the main players in this story?
b) What is the story about? Ie what are its main facts?
c) What legal and ethical questions (issues) are raised by the story?
d) You be the judge: Do you think the doctors have acted illegally?
Unethically?
3. Consider the broader implications of this story for policy and possible law
reform: view the video exerpt from Q & A on the last page.

Baby Asha: Balancing the law with

civil disobedience
OPINION
By Michael Bradley
Updated 25 Feb 2016, 7:44am

PHOTO: Baby

Asha is both cute and innocent. The second of those words is actually relevant. (Supplied)

If Asha were in your safekeeping and you had to make the personal
choice between complying with a law which would place her in
harm's way, and defying that law, what would you do? Michael
Bradley writes.
In 1890, the State of Louisiana passed the Separate Car Act, mandating
that railways provide segregated carriages for black and white passengers.
On June 7, 1892, Homer Plessy, a mixed race man, bought a ticket on the
East Louisiana Railroad and boarded a "whites only" car in New Orleans.
He was arrested and fined $25.
Plessy's case went all the way to the US Supreme Court. The Court's 7 to
1 decision (Plessy v Ferguson) upheld the validity of the Louisiana law, on
this basis:
We consider the underlying fallacy of the plaintiff's argument to consist in the
assumption that the enforced segregation of the two races stamps the colored
race with a badge of inferiority. If this be so, it is not by reason of anything found
in the act, but solely because the colored race chooses to put that construction
upon it.

This doctrine of "separate but equal" that underpinned the practice of racial
segregation remained the law in the United States for about 60 more years
before the eventual victory of the Civil Rights movement.
This is not of merely historical interest, trust me. In these present days of
increasingly harsh law-making, history has lessons to teach.
Recently, the doctors at Lady Cilento Hospital in Brisbane refused to
discharge Baby Asha because she was to be returned to Nauru. Writing on
The Drum, Terry Barnes says that these doctors are "simply vigilantes
intent on taking the law into their own hands." Instead of acting as they did,
"dressed up as noble civil disobedience against unconscionable law and
policy, those who reject our border protection and mandatory detention
policies should take their views to the ballot box."
The nub of Barnes' argument is this: those who oppose the current asylum
seeker regime must "accept that equality before the law comes before any
one individual's plight, no matter how cute and innocent they may be."

On the other hand...

Using a little child as a political football is a manipulative and irresponsible act. Instead of taking the law
into their own hands, asylum seeker activists should voice their concerns at the ballot box, writes Terry
Barnes.

The bit before the comma is a correct statement of a principle of the rule of
law; for society to function, we all must accept the primacy of the law of the
land over our personal preferences. (The bit after the comma seems a
curious snipe at a one-year-old).
The practical application of this principle has two qualifications: first,
sometimes laws conflict with each other, making it not quite so easy to just
go along; and, secondly, sometimes the law itself must give way to our
higher duty to what is unquestionably right. Strange thing for a lawyer to
say, but there is plenty of evidence for this messy complication.
On the first point, it is entirely wrong to say, as Barnes does, that the
doctors who refused to discharge Asha were acting solely on conscience,
engaging in civil disobedience or defying the law.
If they had based their refusal on their disagreement with the
Government's policy, then Barnes would be right. But they didn't. The
doctors said that, in compliance with their overarching duty to their
patients, they reached the conclusion that allowing Asha to be returned to
Nauru would place her in an unsafe and unhealthy environment, and that
therefore they could not discharge her. Whether they were factually right or
wrong, they had every legal right to form that view and to act on it.
Accusing them of grandstanding is misplaced.
But what about when the law is clear, and to resist it is unlawful? I picked
the Plessy v Ferguson case because surely nobody apart from outright
racists would disagree that the law which it affirmed, along with the
principle underpinning it, were fundamentally wrong.
"Separate but equal" is as discredited a concept today as slavery and
torture. Yet, like both of those, it was the law of the land in a democratic
society for a very long time, and it only ceased to be so because citizens of
that society consciously resisted it. Homer Plessy, like Rosa Parks, put

conscience before law; he broke the law deliberately for the purpose of
advocating its reform in the higher cause of humanity.
If everyone always behaved as Barnes would have it, the Rocks precinct in
Sydney would today probably include no heritage buildings; it was the
"green bans" imposed by building unions, in direct defiance of the law as it
then stood, which saved those buildings from the demolition and
redevelopment that the then state government planned. It wasn't an issue
that was ever likely to change the outcome of an election, but it did have
permanent consequences. Looking back, most of us would say we only
wish more of Sydney's heritage architecture had been spared the wrecking
ball.
Of course, the opponents of civil disobedience have a point; what would
happen if we all felt free to choose with which laws we would comply and
which we wouldn't? Anarchy, indeed. It's equally true that many bad laws
are only apparently so with the benefit of long hindsight; as I've said
before, almost nobody thought racial equality was an actual thing until
relatively recently, so Homer Plessy really was a radical in his time.
However, some laws are patently bad, and the test of this is not their
popularity with the electorate. The law that says Asha must be returned to
Nauru is a bad law, in my opinion. It is unprincipled, amoral and directly
damaging to an innocent human being. The rationale for its maintenance,
which is purely and simply to deter other people from getting on boats, is
morally and ethically bankrupt. That's my opinion. It is an opinion shared
by a minority of Australian voters.
If Asha were in my safekeeping, and I had to make the personal choice
between complying with a law which will directly, not hypothetically, place
her in harm's way, and defying that law, I don't know what I'd do. Blind
compliance with the law is not a defence to crimes against humanity, nor
should it ever be a satisfactorily complete answer to our own consciences.
Yes, Asha is both cute and innocent. The second of those words is actually
relevant and I'd choose not to ignore it.
Michael Bradley is the managing partner of Sydney law firm Marque
Lawyers, and he writes a weekly column for The Drum. He tweets
at @marquelawyers.
Topics: government-and-politics, federal-government, immigration, law-crime-and-justice

How can we improve the plight of refugees on

Nauru and Manus Island?
http://www.abc.net.au/news/2016-02-16/q-and-a-looks-at-lock-outlaws-negative-gearing/7169734