How does one reconcile the euphoria felt at the toppling of the Berlin Wall and tearing down of the statues of Lenin and Stalin at the fall of the evil and totalitarian communist Soviet Union, and the disgust at the defacing of the Randwick statue of Captain Cook and in Ballarat, the statues of former Prime Ministers John Howard and Tony Abbott? 

There is of course a difference in a popular uprising overthrowing one of the most undemocratic and oppressive regimes of the 20th century, and the current spate of property damage occurring in some cities in Australia.

We are a democracy and whilst to change things can take time, if a majority agree a statue or effigy may cause offence it can be removed. To overthrow the former Soviet Union there was really only ever one way, and it was never going to be at the ballot box. And importantly it was the will of the majority. 

We are very fortunate to live in a democracy. Winston Churchill’s oft-used description aptly sums it up. He said: ‘No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’

As a lawyer, the point to democracy – the reason it works, the reason we accept the bad with the good, and the way in which we fight to protect it – is the rule of law.

I fundamentally disagreed with (ACTU Secretary) Sally McManus when she said, ‘I believe in the rule of law when the law is fair and the law is right. But when it’s unjust I don’t think there’s a problem with breaking it.’ The inherent problem with that argument is who decides what is ‘unjust’, if it is done without the sanction of law? 

 The rule of law requires us to go to the ballot box and lawfully choose our representatives that most reflect our beliefs, so that the will of the majority determines our future policy and law until we next return to vote again. The courts are there to ensure that law passed by parliament is within power and lawful. In my book there is no other way but to abide majority rule. To tolerate minorities, however well motivated, breaking law in order to defy the majority is wrong. 

 It is also true that a revisionist view of history fails to understand the nuance of history and evolution of law. Law is ultimately the sum of what the majority in the community at any one time wants it to be. Law changes as societies’ values change.

Most Australians do not want images of our former leaders defaced, and likewise that of the intrepid explorer who in the Age of Enlightenment studied and mapped the east coast of our country. It is not to say that every belief held by our predecessors is one with which every Australian will respect or agree, or that as times change our views won’t also. But nothing is achieved through damaging property. 

 Society only works with tolerance for others beliefs. It does not work when a minority acts on what might be understandably felt frustrations by engaging in property damage. Perhaps it is best summarised by NSW Assistant Commissioner Mick Willing who after the Captain Cook attack said: ‘People are entitled to their views, but you’re not entitled to commit crimes.’

 For this is what it is, plain and simple. It is criminal damage to publicly owned property. 

 There is no special offence of property damage involving historical monuments, unless it falls into a particular heritage category. We do as a society treat damaging property pretty seriously in the law. There are some quite high maximum penalties.

Notwithstanding, it maybe time to create a specific offence of damaging monuments of historical significance, in the hope we may deter those who through engaging in damaging public property, seek to make a point by confecting outrage. It is a particularly egregious crime more so for what it seeks to do to our history. 

The present protests stem from concerns about racism. Because the United States is involved, the ghost of slavery is not far away, reminding us all of it’s recent history that played such a role in the American Civil War. Statues of Confederate leaders and generals have been targeted in the same way. 

Slavery is repugnant and it is not only a thing of the past. ISIL used it, and there is good reason the Australian Government—to its lasting credit—passed The  Modern Slavery Act in 2018. But it has also sadly been a feature for all of human history to this very day. And it’s taint reaches to touch most historical figures and peoples. What then qualifies itself for cultural destruction? 

I have a hazy recollection that a few Romans owned slaves, so obviously the Roman Forum and Colosseum ought to go; Sir Isaac Newton had shares in the Royal African Company, so let’s burn his books; Athenian citizens had slaves too, so the Parthenon next. Further, are our protestors aware that many African monarchs had their own slaves and co-operated with the European traders; that many freed slaves acquired their own? 

To tie this back to the law, it is all important that the rule of law prevail. Protesters may consider they are doing what is right, but attempts to erase history are terribly dangerous. How else are we to remind ourselves of the fundamental principles on which good law is made if we have erased our past? As Santayana said, ‘Those who cannot remember the past are condemned to repeat it…’. 

The most terrifying element of Orwell’s 1984 is the re-writing of history on a daily basis to a point where what had actually occurred a day, a week, a year before was lost. And with it goes our ability to evaluate what is right and wrong, what should be lawful and unlawful, and on what to base our lawmaking. 

 That is because we need to remember events such as the Holocaust in order to counter any and all types of racism and racial profiling. To know and to be able to recall the repugnance of slavery, and to apply it to law in the modern context, to hold corporations to account for how, where and from whom they source their goods, materials and services.

And above all, to defend the rule of law, based on an understanding of the whole pantheon of human history, without which we are lost, and will throw away, with all its imperfections, democracy as we know it. 

The wonderful thing about law is that it is alive and ever changing, such that in a democracy there is never a need to break it when all we need to do is shape it. 

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

Disclosure: Morry Bailes is a member of the Liberal Party.

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