Civil Disobedience and Admission to Practice

As per Legal Profession Act 2004 (Vic) s 1.2.6(1)(a), an applicant for admission is required to satisfy the Board of Examiners that they are of good fame and character. In assessing such a test, the Board can consider ‘whether the person has been found guilty of an offence in Australia’ (s 1.2.6(1)(c)).

Wendy Bacon is a journalist, academic and activist campaigning for free speech. In 1979, she applied to the Barristers Admission Board to be admitted to practice. As discussed in the text book and in class, she was rejected for admission due to her willingness to break the law. As Justice Reynolds stated in the case, the decision was:

‘a question of whether a person who aspires to serve the law can be said to be fit to do so when it is demonstrated that in the zealous pursuit of political goals she will break the law if she regards it as impeding the success of her cause.’

Such a decision brings up the question of civil disobedience and the requirements for admission. Civil disobedience, as John Rawls points out, can be defined as a ‘public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change of law or government policies.’[1] Australia, like many other western democracies, has a long history of civil disobedience, including the aboriginal rights movement, the women’s rights movement and the environmental movement. Many of these activists have pointed to a deep respect and commitment to the rule of law that compelled them to engage in civil disobedience to fight against unjust laws. As such, the act of civil disobedience does not entail a sense of disrespect for the law but indeed is foundational to a thriving pluralist liberal democracy.[2]

As Wendy Bacon herself has argued, ‘most of the freedoms we have today would not exist if people, often supported by progressive lawyers, had not confronted authority and broken unjust laws.’[3]

Thus, civil disobedience is not the disrespect for the law, but a deep conviction to ensure that the system of democracy and freedom is fair and just for all. I believe it is sometimes necessary to break the law in order to progressive and improve the law.

What do you think? Should Bacon have been admitted? Should those who engage in civil disobedience be denied admission to the legal profession? Do we want lawyers who will uphold the law no matter what the cost, or those who will fight to change the law when it is unfair?

Do you think Wendy Bacon should be admitted now, 35 years after she first applied? Wendy Bacon suggested on twitter she may apply again:

[1] Kimberley Brownlee, ‘Civil Disobedience’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2013, 2013) <http://plato.stanford.edu/archives/win2013/entries/civil-disobedience/&gt;.

[2] Asher Hirsch, ‘Rainbows in the Court Room: How the Law Can Protect Our Environment’ <http://castancentre.com/2013/03/25/rainbows-in-the-court-room-how-the-law-can-protect-our-environment/&gt;.

[3] Mary Bacon, ‘I Fought the Law …’ The Sydney Morning Herald, 22 November 2003 <http://www.smh.com.au/articles/2003/11/21/1069027327368.html&gt;.

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