There are many things of importance to me, but I gathered that I should direct myself to something that was not too far detached from my working life.

In his introduction to “the Lawyer’s Calling”, Joseph Allegretti recalled explaining to a friend that he was writing a book examining what it meant to be a Christian lawyer. There was a long silence, before his friend said, “Joe, what will you do with the rest of the page?”

The concern Allegretti’s friend entertained is neatly encapsulated in the exclamation of a law student to his professor, after hearing the result of a hard case: “but that’s not just”, to which the Professor’s reply was: “If you wanted to study justice, you should have gone to Divinity School”.

These responses, I am afraid, are not uncommon. There are many who believe that there is a fundamental contradiction between adherence to, and enforcement of, a system of legal order laid down by a secular authority, and loyalty to the dictates of conscience and faith, particularly where it can be seen that the legal code, or some portion of it, is morally indefensible or unjust.

While immediately disheartening, concern of this kind causes one to ponder whether there is in fact anything to be written on the page which Bill Crews has given me. It so happens that there is a matter of principle of which I would wish to speak, and an area of significance for which it has a contemporary relevance.

In drawing my thoughts together, I have reflected over the century that is about to close. That century has been one that has seen two world wars, countless local conflicts, the Great Depression, the emergence of totalitarian political regimes, atrocities long ignored by the United Nations, in Rwanda, Uganda, Ethiopia, the former Yugoslavia, Cambodia and Indonesia, the coining of the terrible euphemism, “ethnic cleansing”, and the reality of nuclear holocaust.

The century has also been one enlivened by enormous strides in medical science and communication technology, by the experience of the moon landings, by Glasnost, Perestroika, the fall of the Wall, and the collapse of communism, by the growing awareness of the humanising value of civil rights, of equality and of tolerance in matters of race, religion and gender, and by the shaky beginnings of the enforcement of the Geneva and Genocide Conventions as seen in the arrest of General Pinochet, and the recent NATO and United Nations actions in Kosovo and East Timor, the first occasions on which there has been military intervention, not for commercial or territorial advantage, but for ethical principle alone. These events are shadowed to a degree by the reluctance of some nations to extend their full co-operation in the prosecution of those guilty of crimes against humanity, and to establish a permanent International Criminal Court of Justice, but they provide at least a glimmer of hope.

At midnight on 31 December 1999, this century will, according to popular although not scientific measurement, come to an end. So far as we in this country are concerned, the new Millennium will approach us from the East that night at a rate of 15 degrees of longitude per hour. For some, this will be the time of Armageddon. For others, it will be an occasion on which the technological explosion of this century will fail due to the ignorance and greed of those who programmed the new age.

I am prepared to take my chances that the world will continue, and that any technological hiccups will be insignificant and temporary. I am not, however, prepared to enter the next century with any sense of complacency about the willingness of the Justice system to take a principled stand on issues that matter. In the text I previously mentioned, Allegretti suggested that the practice of law should be seen as part of a spiritual journey in this world, and that lawyers of conscience can, consistently with their faith, allow personal values and beliefs to penetrate and govern their work. The task, as he sees it, is to apply those values with an awareness that they can be an influence for the improvement of society, and with the understanding that one remains accountable not just to a secular authority, but also to a spiritual authority - a philosophy not far removed from Lord Coke’s rejoinder to King James , “Not under man, but under God, and the law”.

The model, as he sees it, is one that requires a human face and presence to be placed upon those who enter the justice system - to take account of the fact that they are likely to be people in turmoil and pain who seek help, as well as people whose freedoms and privileges are at risk, either because of their own conduct, or the conduct of others. No longer can any of those people be comfortably dismissed as files, or as ciphers to be manipulated according to the dictates of law, or of executive decisions, that may be arbitrary and unfair.

Illustrations are manifold of those judges who have placed blind obeisance to the authority of the day, and to its code, before their own principles, and in this way become party to the perpetuation of terrible injustices.

One need only think of the judges in Nazi Germany, most notably Roland Freisler, the infamous President of the National Socialist Peoples Court, whose rantings have been so vividly captured on film, as he consigned those, who had the courage to resist, to death by strangulation for treason.

The response of the defence attorney for Professor Kurt Huber in the White Rose trial, when he stood during the proceedings, cried “Heil Hitler” and asked, as a loyal German, to be released from the case, a request readily accepted by Freisler, stands as a permanent indictment of all who would place self advancement and rigid adherence to the system of the day, before personal conscience and faith. Disgracefully, the judges of Nazi Germany took no collective stand against the removal from the Bench of their Jewish colleagues, 643 of them in 1933 alone, the passing of the Nuremburg race laws, or the other horrors of this era. The only known occasion on which they collectively stood up to Hitler was when they wrote a letter to him complaining of a proposed alteration in their pension rights.

Can anything more be said of the majority of judges in South Africa, who remained silent, in the face of government sanctioned murder, banishment and detention, during the years of apartheid; of the judges in Chile and Argentina who averted their eyes during the years of the juntas; of those despised former judges in Eastern European countries who despatched “telephone justice” - in accordance with a call on the eve of the case as to how the State wanted it decided; and of those judges today in countries within our own region who have allowed their office to be bent to satisfy the dictates of their political masters?

There have been those who stood their ground, most noticeably those who have been in the dissent in cases involving the most acute of moral dilemmas. For example Justice Daniel of the United States, who had the courage to dissent in the Dred Scott case in the 1850’s, the majority opinion in which supported the withdrawal of judicial protection from slaves, and directly contributed to the Civil War. His resistance stands in stark contrast to that of the majority of the antebellum Judges who, despite their personal opposition to slavery, subjected their consciences to legal and formalistic abstractions in enforcing the laws legitimising slavery, including the fugitive slave laws under which those who made good an escape were rounded up and returned to their brutal masters.

In South Africa, there was the late Justice John Didcott, whose passionate belief in justice, and whose contempt for those lawyers and judges who were apologists for the gross abuses of human rights committed in that country, left him shining as a beacon. In a memorial ceremony following his death, at a special sittings of the Constitutional Court to which he had been appointed by Nelson Mandela, he was described as a friend of the weak, the bullied, the disempowered and the oppressed seeking protection from repression and tyranny. The vision which sustained that image, it was said, helped South Africa rescue so much from the law which was ageless, just and noble from that which was arbitrary, capricious, wicked or crass, a rescue which proved crucial for a defensible and stabilising transition to a constitutional democracy.

Didcott above all retained a sense of humour, amid the absurdity of executive policy of the day. When confronted with a proclamation, issued by the Minister of Sport under the Group Areas Act, that made it an offence for a disqualified person (read ‘a black person’) to spend a “substantial period of time” in a designated group area, a proclamation issued to prevent a multiracial cricket club from playing in the leagues, it was his advice that those batsmen who reached a century could be prosecuted, while those who went for a duck could not. The solution was that they should bowl brilliantly, bat very badly, and not stay for tea.

Then there was Judge Frank M Johnson, a judge appointed to the District Court Bench in Montgomery, Alabama, in 1955, a time when the struggle against segregation had just begun. Before his work on the court was done, a cross was to be burned in his yard, his mother’s house was bombed in the mistaken belief that it was his, he received death threats, he required constant protection from US marshals, and he survived a vote of the Alabama House of Representatives to ask the US Congress to impeach him.

His decisions made him one of the most hated men in the South thirty years ago, as he re-wrote State laws to allow black citizens to vote; fashioned new forms of relief to let black children go to white schools, over the defiant opposition of Alabama Governor George Wallace, who branded him as an “integrating, scalawagging, carpetbagging liar”; desegregated public transportation, and demanded and received assurances from the President, Lyndon Johnson, that orders of his Court would be enforced. In 1961 he took on the Ku Klux Klan by restraining them, and the City, from further violence after the assault, at the Greyhound bus terminal in Montgomery, of the freedom riders who had arrived from the Northern states to bolster local civil rights demonstrations. In 1965, he sanctioned resumption of a voting rights march from Selma to Montgomery which had earlier been interrupted by officially sanctioned assaults and abuses of rights by State lawmen, and even allowed it to block portion of US Route 80. He also brought to an end, by one decision, the literacy requirements for registration as a voter which had been rigidly enforced in relation to blacks but ignored for whites. Today he stands as one of the most revered figures in the history of jurisprudence of that country.

There have been others, some of whose names occupy barely a few lines in written memory, and whose stand on principle led to dismissal, a prison cell, or worse. The Centre for the Independence of Judges and Lawyers, established by the International Commission of Jurists, issues an annual report “Attacks on Justice - The harassment and persecution of Judges and Lawyers”. Its reading is grim fare for those countries where the hold of justice, in the full sense of that word, is at its most tenuous.

It is unlikely that any judge in this country will ever face the fate or the pressures those judges endured. At most they risk having their decisions ridiculed by ill informed politicians, as was the case with the Mabo and Wik decisions, or of being dismissed as judicial activists or lawmakers. For those who do face, in their judicial capacity, moral dilemmas of the kind that emerged in Nazi Germany, that existed under apartheid and segregation, that arose when the military, in conjunction with the police and militia, at Santa Cruz and other places in East Timor, chose to act in defiance of the law, let them listen well to what Solzhenitsyn wrote in the First Circle:

“What is the most precious thing in the world? It seems to be the consciousness of not participating in injustice. Injustice is stronger than you are, it always was and it always will be; but let it not be committed through you.”

I have not in my fifteen years on the bench had to face any serious moral dilemma of the kind which has confronted those expected to enforce truly unjust laws. I would hope that should the occasion arise, I could embrace the philosophy proposed by Allegretti, and practised by those I have mentioned.

I have, however, had the opportunity through the Royal Commission, and later as a Delegate to the Drug Summit, to step outside the shackles of judicial office and to speak somewhat more directly than otherwise might have been the case, with a class of persons who risk injustice in this country at the hands of those who would cling to the hard letter of the law, and to harsh policy.

It will be no surprise that the persons I have in mind are those who have succumbed to the scourge of drugs, a legacy for which the second half of this century must answer, lest we condemn those in the new millennium to an ever spiralling cycle of addiction, crime and destruction. My dealings in this area have been not only with users, but with those whose corrupt conduct dances in and around the drug trade, and those who would write off its victims as flotsam, or they might prefer as jetsam thrown overboard in the hope that they might sink and leave the rest of us safe on the vessel.

When I began the practice of law, the use of drugs was practically unknown in this country. With the advent of the psychedelic sixties and the visits of servicemen on R and R during the Vietnam war, all that changed. The siren call of Timothy Leary, “Turn on, tune in and drop out” was beguiling, and our young rushed to the mind altering substances of the day, as well as to the designer drugs which have followed in their wake.

It is now too late, and no good purpose would be served, in trying to determine why that was so - whether it was due to disillusionment and despair over the failure of society to maintain the opportunities for education and employment that once were there, a reaction to the Asian war, or out of the growing importance of self and the relaxation of personal standards that a more egocentric and consumer oriented society has encouraged.

The reality is that drug abuse has become endemic. Recent importations of heroin and cocaine in quantities in excess of 100 kg, the discovery of clandestine amphetamine laboratories of some magnitude, show that to be the case as does the rising proportion of those in custody for drug related offences. The mortality figures for injecting drug users, and the time ambulance crews spend administering Narcan, similarly point up the problem.

The failure of the threat of imprisonment to halt the drug trade, and the empty rhetoric of the phrases “War on Drugs” and “Zero Tolerance”, an exercise now costing the USA $115 billion per year, are all too apparent.

If one thing stood out from the Royal Commission, it is that organised crime has changed to centre itself on drugs - an activity that it once eschewed - and that the trade in those substances was the single most important feature in taking otherwise decent and honest police off course.

What of the victims? Sadly, those that I saw informally, and still see today in a more official capacity, are young, basically decent and desperate to get off their drug habit. One is entitled to a degree of cynicism when such views are expressed post arrest, but those who are close to the scene, who have worked in the back streets of Kings Cross and in the refuges - people like Father Chris Riley of Youth Off the Streets, Dr. Alex Wodak, Tony Trimmingham, and the brave Sisters of Charity who dared to try, will testify to their genuineness and need.

The assertion that their plight is one of self choice, and that the only way to deter them and others, is the strict legal punishment model, comes from those who have not been anywhere near the front line. It comes from those who do not appreciate the combination of circumstances and forces that take young people into this seedy world - physical and sexual abuse as children, broken homes, absence of education, lack of employment, early and unnecessary imprisonment for minor forms of criminality, peer pressure and the natural inquisitiveness and rebellion of youth.

No one suggests that they should be given the slightest encouragement to believe that drug abuse is acceptable, or that there is merit in experimentation. Nor can anyone question the need for preserving the strictest regime of the law for those who import, manufacture and supply drugs. But do we need to impose the same rigours on those whose youth, innocence, natural inquisitiveness or dysfunctional background have set them on this route, from which it is so hard to retreat?

The harsh reality is that law enforcement is effective in encouraging addicts out of the market, only when there is somewhere to go. At present there are nowhere near enough places for treatment and rehabilitation. Paradoxically, it is much cheaper and easier to find and buy drugs than it is to obtain treatment.

The theory behind zero tolerance, that to force up the price of drugs will keep users out of the market, has a claim to logic, but the theory has proved empty in practice. On the supply side, the market forces in this country, estimated to represent an annual market in the order of $14 billion, ensure that to be so.

Drugs remain as available on the streets as ever. What is in fact happening, despite significant seizures and arrests, is that they have become cheaper, and the age of first use has decreased.

Having ventured into the front line, I am convinced that there is a proper role for the law and for the judge, to balance strict law enforcement against the purveyors of this evil, with an approach that accommodates conscience and compassion. For those who have another view, I urge them to speak to users, such as the twelve year old girl in a funny little hat who told me during the Royal Commission of her experiences in being introduced to a world of vice to feed an addiction, of the rejection and lack of support she had experienced. She came as close as anyone during that Inquiry to reduce me to tears. Bar a miracle her life was going only one way. I do not know where she is today, but I fear the worst.

It was with that experience that I announced my public support for the proper trial of initiatives such as licensed injection rooms, not to facilitate the supply and use of drugs or as a soft option, but to provide a safe environment in which counselling, rehabilitation and medical issues can also be addressed by properly trained staff. It was with that experience that I have lent my support to Drug Courts, which can divert minor offenders from prison to institutional or outpatient rehabilitation and supervision; the continued provision of needle exchanges; the rigorous trialing of opiate antagonists such as naltrexone; and if all else fails, even heroin trials. None I see as soft options, or as sending a message that drug use is acceptable. Each calls for a good deal of effort and co-operation by the user.

It was also with that experience that I have publicly said that those who have not been to the front line, into the streets, the doss houses, the gaols and juvenile detention centres, cannot, in all conscience, claim to understand the problem or offer any sensible solution to it. Until we trial the alternatives, not even those of us who have been there, can really claim to know the answers.

There are those who say that judges have no business expressing such ideas - that they should quietly apply the law and policy set by others without question or protest. I do not believe that Judges can successfully complete their spiritual journey by silence on an issue such as this.

I am reminded of the fine words of Wilfred Owen in his Anthem for Doomed Youth, words penned during the Great War:

“What passing - bells for those who die as cattle?

Only the monstrous anger of the guns

Only the stuttering rifle’s rapid rattle

Can patter out their hasty orisons.”

Today the issue of particular concern to me is that of illicit drug use. Into the next century it may well be something else.

To risk one final quotation, let me turn to something said very recently by Christophe La Maison, the captain of the French Rugby team following its inspirational victory over the All Blacks - “We won above all because we dared”.

It is my hope that there will be judges into the next century who are prepared to dare, to listen to their consciences and their faith, and to take a stand against the unjust laws and policies of the secular state. At least let them not allow injustice to be committed in their names.