BOLD SPIRIT

JUSTICE James Wood's call to fellow judges "to dare, to listen to their
conscience and their faith and to take a stand against the unjust laws and
policies of the secular state" will alarm many people.

It should not. The old idea that parliaments make the laws and the judges
merely apply them has long been exposed as a "fairy tale" (Lord Reid's
phrase of 1972). Even earlier, lawyers became accustomed to seeing judges
as either "bold spirits" or "timorous souls" (categories suggested by Lord
Denning in 1951).

There is no end to debate over how judges interpret the law. But at least
nowadays, there is no real belief that the judges do not make law. The
justice system cannot work without a measure of creativity on the part of
judges when they interpret laws made by the people's elected
representatives in parliament. The questions have shifted to how far judges
can and should go. That is what should be asked when considering Justice
Wood's call to the consciences of judges who interpret the laws on illegal
drugs.

In the Ashfield Uniting Church on Sunday, Justice Wood did not spell out
how these laws should be interpreted at a time when, as he said, drug abuse
has become endemic.

But he spoke of the "failure of the threat of imprisonment to halt the drug
trade". He said law enforcement did not force addicts out of the drug
market unless they had somewhere to go for treatment and rehabilitation.
Most did not. Justice Wood also said the Police Royal Commission had
persuaded him to support the trial of licensed injection rooms, drug courts
to divert minor offenders from prison, needle exchanges, the use of
naltrexone and, "if all else fails", the provision of free heroin to addicts.

Justice Wood's thinking is clearly ahead of what politicians - with their
eyes nervously cast on the law-and-order constituency in their electorates
- - are prepared to agree on when they make laws in parliament. That, surely,
is the problem.

Few people have Justice Wood's wisdom and experience in this difficult
area. Yet laws made in parliament are most likely to reflect more of what
he calls the "empty rhetoric of the phrases 'war on drugs' and 'zero
tolerance'", and so be futile.

The appeal of this bold spirit to the conscience of fellow judges trying
drug cases "to balance strict law enforcement against those responsible for
this evil with an approach that accommodates conscience and compassion"
deserves support, not condemnation.