20 June 2013, Parliament House, Professor Rosalind Croucher, President, Australian Law Reform Commission.
Sections of the CHASS National Forum 2013 are available for viewing via YouTube. Professor Croucher’s presentation begins at 11.35 mins.
In my contribution towards today’s forum on civility, and in this panel discussion on the ‘borders of civility’, I will focus on two themes: being ‘civil’ in the sense of ways of communication; and being ‘civil’ in the sense that participation is a key to civil society—being ‘civil’ is being ‘civic’, participating in the body politic. In the last part of my comments I will use these themes to connect with the work of the Australian Law Reform Commission (ALRC).
To expound upon the ‘borders’ of civility requires an initial reflection upon what ‘civility’ itself is. When I first started to peel the layers off this particular onion I started a quick search of the broad areas of discourse in which the idea of ‘civility’ is a recurring theme.
The word itself—‘civility’—has its etymological links to civilitas (L), about civil government. Civil, with respect to citizens, means befitting a citizen. It slides easily into words and concepts such as being ‘civilised’, being ‘polite’, courteous. Reflecting their etymological roots, ‘Courtesy was for the court; gentility was for the gentry; civility is for all citizens’.
The motto of Minnesota encapsulates civility’s opposite: Civilitas successit barbarum — civilisation succeeds barbarism.
Last Sunday morning, 16 June, on one of those morning TV shows, Gretel Killeen was speaking on the topic, ‘Has Society Lost its Civility?’ a number of incidents were mentioned in the introduction: the racial slurs on the AFL player, Adam Goodes; a disgruntled fan spitting on Canterbury Bulldogs player Ben Barba; ‘menugate’; a journalist asking the Prime Minister was her partner gay; during Origin game one, Blues skipper Paul Gallen ‘swinging’ at Maroons Nate Myles; and the revelations about sexist conduct in the Army. Others could be added—and immediately leap to mind: an accused refusing to stand in court for a magistrate; a parliamentarian being called a ‘fat man’;another mocked for wearing the uniform of a lifesaver, speedos. (We could go on …..)
Then driving home one night last week I heard two journalists commenting upon recent events, referring, in contrast, to the speeches given by John Howard and Kevin Rudd when Howard was defeated in the 2007 federal election. This was described as ‘a masterpiece of civilised discourse’. A salute from the victor to the vanquished and vice versa.
The idea of civility — and its converse — are clearly topics of the moment. There are layers in civility that are distinctly political — befitting a citizen. There are also layers in civility that are about modes of behaviour and conduct that shade into words and concepts of etiquette, protocols of behaviour, decorum and so on.
Randomly pulling things off one’s bookshelf (as one does on occasions like these when asked to comment upon subjects somewhat broader than one is usually asked to do) I found the Who’s Who Guide to Protocol, helpfully compiled by David Ford and published in 2001. It ‘helps you learn from example’ with digrams, checklists, anecdotes and tips ‘to make you feel more comfortable and confident about protocol’ (front flyleaf). It is really a most useful resource. From flags (and the flying and precedence thereof), to the way to remember the hierarchy of British Imperial honours (eg CMG – Call Me God; KCMG – Kindly Call Me God; GCMG – God Calls Me God), to the appropriate etiquette for visits by the Royal Family and seating plans for Vice Regal Occasions, all such matters are part of the broad umbrella of civilised conduct.
The mores and rules of social interaction in a formal sense tap into a deep sense of how civilised people behave. After barbarism comes civilisation, and all the many nuances of civilised behaviour. Warfare is translated into sporting engagements. State of Origin. The Ashes. The World Cup. These are the civilised expressions of intertribal warfare of barbaric times.And even in warfare one can recall iconic ‘civilised’ moments: enemy fighter pilots displaying ‘chivalry’ in saluting each other;the ‘Christmas truce’ in no-man’s land on the Western front during World War I.Even in warfare there are bounds on the uncivil—the UN Convention against Torture and the ‘Geneva Convention’ against barbarity in war.
For lawyers, the literature on codes of ethics — and the mannered practice of the profession — is full of the language of civility. ‘The legal profession cares about civility’ – is how Alice Woolley of the University of Calgary Faculty of Law began her article in the 2008 volume of the Osgoode Hall Law Journal entitled, ‘Does Civility Matter?’ A speech delivered at the Opening Assembly of the Annual Meeting of the American Bar Association in August 2011, titled ‘Fostering Civility in Public Discourse’, spoke of the values and concerns shared by lawyers, in this case across Canada and the Unites States, and that civility was an important aspect of it.Indeed it was the focus of the entire address. Thirty years earlier Chief Justice Warren Burger spoke of civility within the legal profession as ‘really the very glue that keeps organized society from flying into pieces’.
The former Chief Justice of New South Wales, James Spigleman AC, used many occasions to speak publicly about civility and the legal profession, and more generally.
In speaking at the Opening of Law Term Dinner, 2006,Spigelman identified what he called ‘the origins of one of the great strengths of Australian society’ – ‘our extraordinary capacity for the integration of disparate groups into a cohesive, tolerant and inclusive society’.
By civility I do not refer, or do not only refer, to matters of etiquette and manners. The core element of civility is the manifestation of respect for other persons. In Asian societies such respect is manifest in the courtesies involved in giving “face” to others. In the Western tradition, civility has long been accepted as a public virtue manifest in signs of respect to strangers in language, etiquette and in tempering the assertion of self-interest.
With respect to lawyers and lawyering, respect is the essence of the ‘tradition of civility’ in the legal profession, recognised as ‘a fundamental ethical obligation of a professional person’. Spigelman contrasted the ‘decline in civility apparent elsewhere in society’—such as the Cronulla riots—and exhorted his audience to continue the tradition of civility of the legal profession as ‘well recognised rules of proper conduct’.
Turning from these general observations, let’s now focus on the specific topic of our forum: what, then, are the borders on civility? Let’s reframe that question as: what happens when one is uncivil. The flip side surely lies in consequences. Here one can imagine a sliding scale, depending on how hard-edged that border is defined within the structures of a civilised democratic state.
If you are rude, offend someone, or breach the nuanced expectations of etiquette or social graces, you might not get asked again. So uncivil may have been your transgression that you are struck off all the guest lists of the friends of the friend you offended. You are banned from a club, a sporting team; suspended for a match, a season, for life.
You may be excommunicated or expelled from a religious group.
You may get struck off a roll of practitioners.
You may go to jail.
The hardest borders on civility lie in law.
But one should also pose questions in testing the borders that we impose, whether through social convention or through law. Because by testing the borders we affirm the commitment—civilisation follows barbarism. Do we go too far in condemning incivility? (I note here the discomfort expressed in proposing the extension of the consolidated Commonwealth anti-discrimination legislation to conduct found ‘offensive’).Do we become too precious? Prudish? And therefore intolerant—if not the antithesis of ‘civility’, intolerance is certainly a word that does not sit within the concept of civility in a democratic state.
In her Boyer lectures in 1995, entitled ‘A Truly Civil Society’,Eva Cox referred to the work of Hannah Arendt, a German Jewish philosopher who fled Hitler. Arendt argued that being fully ‘human’ involves what she called the ‘vita activa’—public life. Drawing from this, Cox said that as civil societies are civic societies, we, as citizens, must take some responsibility for changing what we do not like. Namely, to counter incivility requires participation. This requires ‘building social capital’—including trust, cooperation and goodwill. If people disengage with the civil process there is no longer ‘a truly civil society’.
Perhaps one can say, too, that there is then even a step towards a return to barbarism.
The ALRC’s contributions to civility
I will now turn my attention to my experience of civility in a process that has been much of my life for the past six and a half years: namely, that of law reform. I see that process as a particular expression of civility in its commitment to and practice of consultation. In this very specific context it is a powerful expression of civilised communication. It is based on trust, cooperation and goodwill—the ‘social capital’ to which Eva Cox referred.
The conversation begins in civility by acknowledging the traditional custodians of the land as part of our respectful processes, and today I do so again: acknowledging the Ngunnawal and Ngambri peoples, and paying my respects to their elders, both past and present and acknowledging Indigenous guests attending today.
The conversation continues as consultation—a commitment to which is the hallmark of ALRC practice. And it is a mode that is based on respectful, engaged and continuing conversation. It is extremely civil.
The standard pattern of work is to produce two community consultation documents—an Issues Paper and a Discussion Paper—before proceeding to a final report with recommendations for reform.These are used as the basis for staged community participation. For example, during the 2011–12 year, the ALRC undertook 157 consultations across every state and territory, and over 2,400 submissions were received, most of them in the Classification inquiry. A Commissioner leads an inquiry, supported by part-time Commissioners. It is the Commissioner who leads the consultations all over the country—a particular mark of respect to the many people who become involved in our inquiries.
The ALRC’s commitment to consultation I would describe as a demonstration of civility in the context of law reform. It is characterised by reflective listening and openness to the widest range of views on the subject marked out by the Terms of Reference for each inquiry. It is demonstrated in the feedback given to the ALRC by stakeholders and, for example, by Advisory Committee members.
With respect to the composition of the Advisory Committee for the Classification Inquiry, in response to a survey of members regarding their experience, one comment was that ‘the committee was well constructed and largely representative of the stakeholders’. Another remarked that the Commissioner in charge of the inquiry ‘was always responsive to me when needed as a stakeholder’.
Another example comes from a recent submission made to the recently released Discussion Paper for the Copyright inquiry:
‘What initially impressed me about the Discussion Paper was its respect for all point of view, even the crazy ones. It was sympathetic, nice, polite and politically neutral at every turn.’
The process works. And we continue to reflect on how to improve it — how to continue the conversation, as we put it.
In April 2011, the Senate Legal and Constitutional Affairs References Committee delivered its report in conclusion of an inquiry into the ALRC. The Committee said that the work of the ALRC is ‘widely respected’, with a ‘high rate of take-up by government’: [2.18]. It also referred to evidence given by witnesses who outlined to the committee ‘the high regard in which the ALRC inquiry process is held’. The Committee cited the example of Mr Edward Santow, CEO of the Public Interest Advocacy Centre (PIAC), which is particularly pertinent:
I would say that we do not always agree with the ALRC. PIAC is a human rights oriented organisation. We do not feel that we get an easy ride with the ALRC. Indeed, while we agree with many of its recommendations, there are some that we very strongly disagree with. Nevertheless, we have long respected the integrity and processes that the ALRC carries out. ([2.20])
I regard this as a fine salute, indeed.
Perhaps I can conclude with some observations: that respect for the integrity of another —whether an individual, an organisation or a nation; and respect for process — the commitment to and practice of listening, reflective analysis and communication through fair and balanced reporting; are the true hallmarks of civility, particularly in the context of law and law reform. It is a different space from that of the manner of greeting and place settings for the Royal Family, but it expresses a kindred sentiment.
And it is a process that facilitates participation in a civil society—through a distinct lens—and in that way manifests a particular aspect of the vita activa to which Eva Cox drew our attention. A civil society is a civic society and to counter incivility requires participation. This is where the ALRC creates a particular space in civil society.
 I am also Professor of Law, Macquarie University—on leave for the duration of my appointment at the ALRC. The views in this presentation are my own and not those of the ALRC.
 Christopher Bryant, quoted by Martin Krygier in his Boyer lecture on ‘The Uses of Civility’, published separately as ‘Wherefore art thou, civility?’ (1998) 70(1) Australian Quarterly, 38 at 42.
 See, eg, http://www.heraldsun.com.au/sport/afl/adam-goodes-gutted-after-13-year-old-girls-racial-slur-who-called-the-sydney-champion-today-to-apologise/story-fni5fan7-1226650256245.
 See, eg, http://www.dailytelegraph.com.au/sport/nrl/manly-fans-accused-of-spitting-on-and-abusing-canterbury-bulldogs-players-following-round-14-game/story-fni3gnk1-1226664165473.
 As explained on Wikipedia: http://en.wikipedia.org/wiki/Menugate.
 See, eg, http://www.theaustralian.com.au/media/fellow-shock-jocks-turn-on-sattler-over-tim-mathieson-gay-question/story-e6frg996-1226663661833.
 See, eg, http://www.dailytelegraph.com.au/sport/nrl/nsw-skipper-paul-gallen-on-report-after-letting-the-fists-fly-at-queeslands-nate-myles/story-fni3fqyo-1226658109585.
 See, eg, http://www.abc.net.au/news/2013-06-14/chief-of-army-fires-broadside-at-army-over-email-allegations/4753208.
 See, eg, http://www.dailytelegraph.com.au/news/accused-rioter-mohammed-issai-issaka-berated-in-court-after-refusing-to-stand-for-magistrate-jacqueline-milledge/story-fni0cx4q-1226646584711.
 See, eg, http://au.news.yahoo.com/thewest/a/-/breaking/17574958/she-called-me-fat-hockey/.
 And the UN: The United Nations is both a participant in and a witness to an increasingly global civil society. More and more, non-governmental organizations (NGOs) and other civil society organizations (CSOs) are UN system partners and valuable UN links to civil society. CSOs play a key role at major United Nations Conferences and are indispensable partners for UN efforts at the country level. NGOs are consulted on UN policy and programme matters. The UN organizes and hosts, on a regular basis, briefings, meetings and conferences for NGO representatives who are accredited to UN offices, programmes and agencies.
 See, eg, http://www.dailymail.co.uk/news/article-2245472/Amazing-tale-WWII-pilots-encounter-German-flying-ace-saluted-American-plane-let-fly-safely-instead-shooting-down.html.
 See, eg, http://en.wikipedia.org/wiki/Christmas_truce.
 (2008) 46 Osgoode Hall Law Journal 175.
 S N Zack, ‘Fostering Civility in Public Discourse’ (2011–2012) 18 Dispute Resolution Magazine 22.
 Referred to in ibid, 22.
spigelman_speeches_2006.pdf, at 124–129.
 See, eg, James Spigelman’s Human Rights Day Oration 2012: http://www.smh.com.au/opinion/political-news/freedom-of-speech-warning-on-bill-20121210-2b5pj.html
 In the third of his Boyer lectures, Professor Martin Krygier explores the idea of civility and refers to Christopher Bryant’s remark that civility ‘remains a fundamentally democratic idea’: Between fear and hope: Hybrid thoughts on public values, Boyer Lectures 1997, ABC Books, 63. The lecture was also published as ‘Wherefore Art Thou, Civility?’ (1998) 70(1) Australian Quarterly 38.
 See, eg, http://www.crcresearch.org/files-crcresearch/File/cox_95.pdf.
 See a summary at: www.alrc.gov.au/law-reform-process.