If Asha were in your safekeeping and you had to make the personal choice between complying with a law which would place her in harm's way, and defying that law, what would you do? Michael Bradley writes.

In 1890, the State of Louisiana passed the Separate Car Act, mandating that railways provide segregated carriages for black and white passengers.

On June 7, 1892, Homer Plessy, a mixed race man, bought a ticket on the East Louisiana Railroad and boarded a "whites only" car in New Orleans. He was arrested and fined $25.

Plessy's case went all the way to the US Supreme Court. The Court's 7 to 1 decision (Plessy v Ferguson) upheld the validity of the Louisiana law, on this basis:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced segregation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

This doctrine of "separate but equal" that underpinned the practice of racial segregation remained the law in the United States for about 60 more years before the eventual victory of the Civil Rights movement.

This is not of merely historical interest, trust me. In these present days of increasingly harsh law-making, history has lessons to teach.

Recently, the doctors at Lady Cilento Hospital in Brisbane refused to discharge Baby Asha because she was to be returned to Nauru. Writing on The Drum, Terry Barnes says that these doctors are "simply vigilantes intent on taking the law into their own hands." Instead of acting as they did, "dressed up as noble civil disobedience against unconscionable law and policy, those who reject our border protection and mandatory detention policies should take their views to the ballot box."

The nub of Barnes' argument is this: those who oppose the current asylum seeker regime must "accept that equality before the law comes before any one individual's plight, no matter how cute and innocent they may be."

The bit before the comma is a correct statement of a principle of the rule of law; for society to function, we all must accept the primacy of the law of the land over our personal preferences. (The bit after the comma seems a curious snipe at a one-year-old).

The practical application of this principle has two qualifications: first, sometimes laws conflict with each other, making it not quite so easy to just go along; and, secondly, sometimes the law itself must give way to our higher duty to what is unquestionably right. Strange thing for a lawyer to say, but there is plenty of evidence for this messy complication.

On the first point, it is entirely wrong to say, as Barnes does, that the doctors who refused to discharge Asha were acting solely on conscience, engaging in civil disobedience or defying the law.

If they had based their refusal on their disagreement with the Government's policy, then Barnes would be right. But they didn't. The doctors said that, in compliance with their overarching duty to their patients, they reached the conclusion that allowing Asha to be returned to Nauru would place her in an unsafe and unhealthy environment, and that therefore they could not discharge her. Whether they were factually right or wrong, they had every legal right to form that view and to act on it. Accusing them of grandstanding is misplaced.

But what about when the law is clear, and to resist it is unlawful? I picked the Plessy v Ferguson case because surely nobody apart from outright racists would disagree that the law which it affirmed, along with the principle underpinning it, were fundamentally wrong.

"Separate but equal" is as discredited a concept today as slavery and torture. Yet, like both of those, it was the law of the land in a democratic society for a very long time, and it only ceased to be so because citizens of that society consciously resisted it. Homer Plessy, like Rosa Parks, put conscience before law; he broke the law deliberately for the purpose of advocating its reform in the higher cause of humanity.

If everyone always behaved as Barnes would have it, the Rocks precinct in Sydney would today probably include no heritage buildings; it was the "green bans" imposed by building unions, in direct defiance of the law as it then stood, which saved those buildings from the demolition and redevelopment that the then state government planned. It wasn't an issue that was ever likely to change the outcome of an election, but it did have permanent consequences. Looking back, most of us would say we only wish more of Sydney's heritage architecture had been spared the wrecking ball.

Of course, the opponents of civil disobedience have a point; what would happen if we all felt free to choose with which laws we would comply and which we wouldn't? Anarchy, indeed. It's equally true that many bad laws are only apparently so with the benefit of long hindsight; as I've said before, almost nobody thought racial equality was an actual thing until relatively recently, so Homer Plessy really was a radical in his time.

However, some laws are patently bad, and the test of this is not their popularity with the electorate. The law that says Asha must be returned to Nauru is a bad law, in my opinion. It is unprincipled, amoral and directly damaging to an innocent human being. The rationale for its maintenance, which is purely and simply to deter other people from getting on boats, is morally and ethically bankrupt. That's my opinion. It is an opinion shared by a minority of Australian voters.

If Asha were in my safekeeping, and I had to make the personal choice between complying with a law which will directly, not hypothetically, place her in harm's way, and defying that law, I don't know what I'd do. Blind compliance with the law is not a defence to crimes against humanity, nor should it ever be a satisfactorily complete answer to our own consciences.

Yes, Asha is both cute and innocent. The second of those words is actually relevant and I'd choose not to ignore it.

Michael Bradley is the managing partner of Sydney law firm Marque Lawyers, and he writes a weekly column for The Drum. He tweets at @marquelawyers.