Brian Walters is the Greens Party candidate for Melbourne. He is also a barrister and SC.
Recently, it has come to light that Walters has investments in QLD coal interests and represented a coal company over the workplace death of a union delegate at a mine.
These facts are not smears. Neither Walters nor the Greens Party apparatchiks that run his PR have denied the facts – instead they deny the inferences that come from the facts. That Brian Walters was obligated to take the case defending the coal company on the grounds that the “cab rank principle” applied.
The “cab rank principle“, as I understand it is:
the obligation of a barrister to accept any work in a field in which he professes himself competent to practise, at a court at which he normally appears and at his usual rates
On this principle, people accused of even heinous crimes can receive legal representation.
The Greens Party is an organisation that holds other people to high standards of ethical behaviour. Brian Walters says that:
Our political system is the way we arrange the community’s conversation about the use of power.
He also writes:
The rule of law is not so much about having laws – even tyrants have laws – as having checks on the exercise of power. Nazi Germany had laws – and a lot of them – but no one would argue that it was a society subject to the rule of law. A central feature of the rule of law is that it allows the courts to stand between the citizen and the government and to determine disputes between them. Courts provide a check on the exercise of governmental power that protect the citizen from arbitrary abuse of power.
Now, I would say that a point Walters is making about tyrants and the rule of law is that there are bad laws which are abuses of power. In tyrannical societies, people without power suffer at the hands of those with power. In such a society, a despised person may not receive legal representation. Without the “cab rank principle”, our legal system would collapse as rapists, murderers or holocaust deniers are unable to be represented in court.
The powerful will always be able to pay for legal representation – in a liberal democratic society like Australia or in a tyrannical society. The cab rank principle it seems to me, is intended for those without power or privilege – and certainly not corporations or companies – who are typically able to foot the bill.
A rule – the cab rank principle – that is blindly followed can lead to perverse outcomes. A rule by itself needs values behind it. If its intent is to provide representation to those that could not ordinarily get it, should it be arbitrarily followed in a way that gives representation to those who could afford it without the need to refer to the cab rank principle? Should people who can afford a private limo be taking up places in the cab rank?
If the point of our political system and legal system is about the arrangement of power as Walters argues, where does that leave him?
One of the ways we make a contribution to the world is through our choice and pursuit of a career. Whatever choice we make, our vocation has more importance than the pay packet attached to it: it is a way of getting to know ourselves and the world, and of helping others. I believe a vocation should build the world into a better place.
The vocation you take is a way to know someone. It should make the world a better place. Ethics are important.
“You could make up excuses, but my ethics mean that if you have subscribed to the ethics of my profession you have to stick by them.”
On that criteria, should Brian Walters have prioritised the “ethics” of the cab rank principle above his ideal of “building the world into a better place”? Are arbitrarily applied rules worse than not following those rules if to do so would lead to an unethical outcome, or an outcome that violated your ethical standards?
It is clear that many lawyers do not subscribe to the “cab rank principle” when to do so would seriously undermine their own values. For example, several Labor-aligned lawyers refused to take on Patrick Stevedores during the waterfront dispute in 1998. Similarly, Peter Faris QC refuses to take on clients accused of rape, Nazism or terrorism, on ethical grounds.
Brian Walters says that the courts provide a system to prevent the arbitrary exercise of power by government over citizens. He is unfortunately silent about the arbitrary use of power gained through wealth (the power of corporations) on citizens.
Hiding behind the “cab rank principle” as an ethical shield at the expense of your other stated values and morals – using your vocation to build the world into a better place – is hypocritical. Furthermore, Walters – who is forced to accept the brief – is profiting handsomely from the “cab rank principle”.
The fact that the legal profession has come out to defend Walters is hardly surprising. It is in their interests to perpetuate the “cab rank principle” as many would rely on it as their own moral shield. Lawyers are long practiced at defending things they don’t really believe in.
Walters argues that:
We have a choice in governing our society – a choice between some having unbridled power – the rule of the despot, the rule of whim – and a society with clear laws which provide checks to the exercise of power – the rule of law. it is, at heart, the choice between tyranny and democracy.
What he ignores – perhaps deliberately – is that the real unchecked exercise of power comes from those with wealth against those without.
Walters says that:
The suggestion by Labor that I should pick and choose is a suggestion that I should behave unethically and that the rule of law does not matter.
Is it not more ethical to stand up to a law – or Bar Rule – that would result in unjust or unethical outcomes? To say “no” to a case that fundamentally opposed your own ethics?
Real life is not like Boston Legal, where you can sit on the balcony at the end of the episode and talk yourself through some kind of ethical catharsis.
For someone seeking public office, belonging to a political party that has firm principles, standards and ethics, surely greater judgement is needed than to just accept such briefs? The fact that so many otherwise ethical people came out in defence of Walters – the same people who would abjectly condemn a Labor-aligned lawyer or candidate for the same offence – demonstrates the hypocrisy of this situation.
It demonstrates that the Greens Party are just another political party, willing to turn themselves into sophistic knots to justify when one of their own does something unjustifiable.
Brian Walters also seems to be willfully misusing the term “rule of law” in his rebuttal of criticism. He states that Labor effectively does not believe in the rule of law because of questions raised about the ethics of accepting a coal company as a client.
This is of course nonsense peddled by someone who is trying to avoid the substantive question while constructing a straw man.
The Rule of Law (an elusive concept) is defined by the UN as: “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws”. It is the notion that everyone is accountable to the law – even agents of the government, like police and Ministers. It also includes things like fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
I cannot for the life of me see how “picking and choosing” becomes “the rule of law does not matter”.
Of course, Brian Walters is a lawyer. He is used to making spurious arguments in defence of things that he does not really believe in.
It is a pity that Walters does not stand by his ethics. When using the maxim of judging someone by what they do, not what they say, Brian Walters fails. He says that ethics, power and making the world a better place are important.
But what he does is defend coal companies in cases where a union delegate has died on the job.
Perhaps the many human rights and pro bono cases he takes are his own recognition of this fact – perhaps he is trying to assuage his guilt.
Just a note on renowned Greens Party lawyer Jeremy Sear’s defence of Walters (available at the Crikey Blogs site). Sear is obviously defending the “cab rank principle” – as you would expect a lawyer to do. Sear argues that Walters should be excused from any charges of unethical behaviour on the basis that he’s just “following the rules“. Despite this, Sear is vehemently critical of the idea of anything impinging on someone’s ability to express their views – such as the binding caucus.
That said, there’s something fundamentally insincere about running for either of the major parties, since their platforms are so broad and contradictory and you know that you may well be forced to vote against what you believe by party discipline anyway – so it’s disingenuous to pretend to the voters that you’ll stand up for your own personal beliefs when you know you’ll throw them away when ordered to by your colleagues who may be from the opposite wing of the party.
Of course, for a lawyer seeking public office, it’s just “following the rules”. For a person in the major parties, it’s “fundamentally insincere”. On the one hand, you have a “cab rank principle” being used as ethical cover by Walters for defending a coal company, and on the other, MPs from major political parties are insincere for being “forced to vote against” what they believe.
Sear holds everyone, except for Greens Party candidates, by very high ethical standards. But being a lawyer, he is prepared to argue against what he believes to defend Brian Walters.
Now, there is plenty of wriggle room here. Hall writes (and by quoting him I do not endorse his blog, his views or his politics since I know nothing about him or his writings except this one post):
In essence our learned friend is claiming that his profession is some sort of grand debating society that is obliged to argue that black is white if the brief demands it and that by doing so the cause of justice is very well served because everyone gets the best possible defence. Well that is rather noble and even worthy of praise but I can’t help thinking that he is rather gilding the lily when he suggest that a brief can never be declined“The point is that he’s not entitled to refuse the brief just because it’s from a coal company,”he says and by the rules that certainly is superficially true but looking at the rules themselves its clear that there are enough caveats and legitimate reasons that a brief may be declined that would allow a barrister to wriggle out of the “obligation” to accept any brief should they really want to.
Additionally, just because Brian Walters is a Greens candidate and lawyer, doesn’t mean he should be immune to scrutiny or questions about how his profession jibes with his personal ethics.