Rather His Own Man

by Geoffrey Robertson

  It was very exciting. I could not wait to Pan-Am across the Pacific, landing in Fiji at night and watching as friendly brown faces approached me from the tarmac. I had left White Australia.

  I remained in Suva for a few days, staying with an Indian family, who explained their fears about the discrimination against them, imposed by indigenous chiefs (an issue which was to bring me back to Fiji as their counsel many years later). Then it was off to Hawaii to join my group of Asian student leaders.

  There were thirteen of us, assembled under the wing of a benign Scout-leader type called Phil. Some were not very political, and I suspected they had a familial relationship with corrupt rulers. I remember the sad face and sage advice of Hien from South Vietnam, who probably had to go through ‘re-education’ a few years later as the result of this trip, and Shig, a jolly Japanese youth who was later to make a fortune in steel. My best friends were Kiwi, an obsessively nationalist Singaporean, who rose high in Singapore Airlines before falling out with Lee Kuan Yew, his former idol, and Sarwano Kusumaatmadja, an Indonesian given to frequent laughter which showed the gaps in his teeth. He became a particular friend, and in years to come I watched with admiration his political career in Golkar (the ruling party) as he fought to combat the corruption that had become endemic in his country.

  Then it was onwards to California, to begin our three-month indoctrination into the values of the ‘greatest country in the world’. Our first stop was at the Santa Cruz campus of the University of California, set in the mountains and, unlike Berkeley and UCLA, not known for much student activism. So the CIA reckoned it was a safe place for us to start, not realising that the reason for the lack of protests was less the conservatism of Santa Cruz students than the fact that most were spaced out on drugs, a habit that had not really hit the campus at Sydney (and certainly not its Law School). The very first night of our arrival featured a lecture on the subject by none other than Timothy Leary, the former Harvard professor who had become the guru of dropping out. He spoke about the ‘philosophy of ultimate pleasure’ and how psychedelic drug-taking resulted in the ‘suspension of conditioning’, so that the individual could enjoy ‘real thought, real decisions, real love and real life’. He struck me as a salesman and of no great intellectual rigour (too many fried brain cells, perhaps), but what was extraordinary was the street erudition of his audience. Their questions – sometimes of a technicality that even he could not answer – showed that recreational drugs would be here to stay. By early 1969, ‘Timothy Leary Dearie’ (as he had been saluted by ‘Let the Sun Shine In’ in Hair) was becoming passé. I introduced myself after the lecture and begged an interview for Honi Soit and he agreed: no doubt this Johnny Appleseed of hallucinatory drugs saw Australia as fertile territory for propagating mind expansion. I bothered him the next lunch-time with questions that he thought naïve (they probably were) while he ate a steak that had been specially prepared for him by his acolytes, ‘peppered’ with some undoubtedly illegal substance. Later he had to flee America after escaping prison following conviction on drug charges and took refuge in Algeria. He eventually returned and when he died, aged seventy-five, his ashes were put in a satellite and released, appropriately enough, in space.

  We were soon whisked to Harvard, where I met the dean of the Law School (to which I was minded to apply) and caught up with an old friend, Nick Greiner, at the Business School (when he returned to Australia I was master of ceremonies at his wedding). Then on to Washington, where CIA connections brought us an audience with the House Minority Leader, Gerald Ford. We were unimpressed: he had a face out of a gangster movie and seemed a bit slow – he did not know where or what ‘Far-East Asia’ was. But three nights in New York were well spent: I went to a performance of Hair (which had just been threatened with a ban in Sydney by the Askin government) and I discovered the Met. Il Trovatore was playing, an opera which, as someone remarked, needs only the five best singers in the world. The Met could afford them – Leontyne Price, Grace Bumbry, Luciano Pavarotti, Sherrill Milnes and not forgetting Ezio Pinza, the most thrilling of all because he had been the dubbed voice singing ‘Some Enchanted Evening’ in the movie of South Pacific. The Met, with its amazing Chagall stained glass, was my New York mecca ever after. On my last night I had a ticket for Adriana Lecouvreur, with Renata Tebaldi and the reigning tenor, Franco Corelli. Alas, he had to cancel to fly to his father’s sick-bed in Italy, to be replaced at the last minute by a relatively unknown Placido Domingo. I heard him there first!

  The CIA tour took us around the country – from the bears of Yellowstone to the Colorado canyons to the wooden bridges of New Hampshire. We marvelled at the beauty of America, and occasionally at the ugliness of some of its people: when we came across Ku Klux Klanners in the South and visited the Texas A&M (Agricultural and Mechanical) University, with its massive collection of guns donated by old ‘Aggies’ – an example of how deeply entrenched the Davy Crockett instinct is in American culture.

  The planned highlight of our visit was a one-month ‘homestay’ with a typical American family in a typical American town. The place the CIA had carefully chosen, to impress on us the virtues and superiority of the American way of life, was Sarasota on the Mexican Gulf shore of Florida. This was indeed a pretty nice place – lots of spacious houses with motor launches on its numerous quays. It had the state art museum funded by the Ringling circus family (the town had been winter home for the circus), a nice little opera company, innumerable tennis courts (and later the celebrated Bollettieri Tennis Academy, where my son was to train) and plenty of fast-food delights to dazzle us Far-East Asians, who had yet to be colonised by McDonald’s.

  My ‘typical American family’ was that of Milt and Judy Rubenfeld, proprietors of the local light shop. It comprised Paul, a quirky seventeen-year-old, whose bedroom I shared for the month; Abby, his very serious teenage sister; and a somewhat fractious younger brother. The latter, in this typical American family, later did time for armed robbery in the local penitentiary, while Abby became a distinguished attorney with a lesbian partner and children in Texas. But I like to think of Paul as the most typical of all.

  Paul Rubenfeld became an actor, taking the stage name Paul Reubens. He appeared in some Cheech & Chong movies and then developed his own almost immortal character, Pee-Wee Herman, to the delight of children around America, and indeed throughout the world. But Pee-Wee’s biggest adventure came when he returned to Sarasota to see his parents, dropped into one of its gay cinemas and was arrested by an undercover cop for – well – scratching himself. His career immediately came to a total and cataclysmic end. He was treated as if he had betrayed a generation of American children.

  Some time after Paul’s fall, I reconnected with Judy. Hugh Grant had just been caught, at the height of his Hollywood fame, receiving oral sex from a prostitute in a public place near Sunset Boulevard. ‘Times have moved on – the scandal hasn’t ended Hugh’s career,’ I said. ‘Maybe they can now forgive Paul.’ She cackled with laughter and shook her head. ‘Geoff, you still don’t understand America!’

  Did the CIA get its money’s worth out of my three-month indoctrination? Not if you believe the Washington Times, in which I was listed in 1999 (by John Bolton, no less, later Bush’s ambassador to the UN) as one of his country’s intellectual enemies because of my arguments that the US should be bound by international law. But however forcefully I may criticise its foreign policy, the ugliness of its gun culture or its responsibility for some of the world’s poverty and conflict, I have never faltered in my general acceptance of America’s leadership of the free world – a result, I suspect, not of my youthful CIA sponsorship but of my knowledge about the alternatives. As for Paul, he is a delightful man who has entertained my actor son and may soon make a comeback. I hope he does, although it will be too late for me to retitle this book How the CIA Made Me Sleep with Pee-Wee Herman.

  6

  Freedom Rides

  I still feel slightly queasy when students tell me that rea
ding one of my books inspired them to study law. ‘Then I probably ruined your life’ is my knee-jerk response. I thought, back in 1966, that I might have ruined mine when I arrived at Sydney University Law School. It was not part of the sunny, spacious quasi-Gothic campus a couple of miles from the city centre; it was in the city centre in a grim, squalid old building opposite the courts in Phillip Street. Although many of the country’s best lawyers had passed through, it was essentially a place for students to mug up quickly on legal procedures before being turned loose on the public as practitioners. In a four-year law course, you had only the first year full time; thereafter, if you were lucky, you obtained ‘articles of clerkship’ with a firm of solicitors, for whom you worked, often as poorly paid slave labour, for the next three years, attending lectures early in the morning before the courts opened and late in the afternoon once they had closed. This was convenient for the barristers who walked over the road to give lectures, although their busy practices left them little time for involvement in law-school life. The Dickensian system was set up for the short-term pecuniary benefit of the solicitors’ profession, and I quickly became involved in the campaign to abolish articles, which succeeded in 1970, just as I finished my own. (They were replaced by a skills course, offered by a college which everyone would attend after their final exams.)

  A new law school on the campus was our other objective, which took much longer to realise (it did not open until 2009). We had to work in cramped conditions at what we termed ‘Phillip Street Tech’. We had a dean who was a drunkard, teaching Roman law at an early hour before delirium tremens set in. Our most memorable character was Ron, the disabled lift driver who told dirty jokes as he navigated his vehicle to the higher floors of the narrow building. His stories were often interrupted by a male shout from the back: ‘Lady in the lift, Ron’ – the few women who ventured into law at the time had to be protected from smut. They were on their way to the ladies’ common room – one of the smallest rooms in the building, converted from a men’s toilet, which had four chairs and a settee.1 Australia did not have a single female judge until Roma Mitchell was appointed (in South Australia, of course) in 1965. I have enormous respect for the women who did suffer this suffocating sexism at Sydney and came through, such as Mary Gaudron (who took the university medal and later became the first female High Court judge), Helen Coonan, and Francesca Macartney, now Beale (who went on to a career as a media lawyer in the US and now has a cinema named after her in New York). They needed psychological strength as well as intellect to cope with constant belittling.

  The first surprise about Australian law circa 1966 was its Anglo-centricity. In the sixty-five years since Federation, Australia had produced the finest judge in the common-law world, Sir Owen Dixon, and judges, academics and jurists to rival most of the judicial minds in Britain. But English judges were venerated, and their (often narrow and narrow-minded) decisions always followed. This was because English Law Lords, who sat in England’s highest court (the House of Lords Judicial Committee), also sat as Australia’s highest court, the Privy Council, the ultimate court for most countries of what was then the British Commonwealth (now just the Commonwealth). Traditionally, on granting independence, Britain would insist on retaining control of a new nation’s legal system by requiring it to allow a final appeal to the Privy Council. It did so with Australia in 1901, and with Canada, which got rid of this ridiculous colonial arrangement in 1949. Why did Australia not do so until Gareth Evans and Lionel Bowen pulled the imperial plug in 1986? Menzies, of course, loved the royal link – it was Her Majesty’s Privy Council that in his view should continue to rule her Australian subjects especially after it struck down the Chifley government’s attempt to nationalise the banks. And it was beloved by generations of top corporate solicitors and barristers, whose clients paid large fees for them to travel first class to London, stay at the Savoy and spend a few days inviting English Law Lords, who knew nothing about Australia, to reverse a decision already expertly made by our own High Court. Although I was subsequently to appear frequently in the Privy Council, rubbing shoulders in its robing room with leaders of the Sydney Bar, I never felt that the justice they obtained from bored English Law Lords was half as good as the justice they had already received back home. It was a genteel scam, really, that our top lawyers connived in for too many years.

  So far as teaching was concerned, the Law School was really a dictation factory. Busy clerks would take notes of lectures before rushing off to their offices, later regurgitating them for examiners, whose marks depended on how many of their own words they could recognise in the exam papers. I learnt the bread and butter subjects in this way, including Contracts (the bargains that the law will enforce), Torts (the law involving civil liability – in New South Wales mainly how to recover compensation for negligent road accidents) and Real Property (i.e. conveyancing land and houses). As for Legal History, it stretched from Anglo-Saxon times to 1485: there was nothing about the history of law in Australia, which does have some interest, and nothing about the fundamental developments in legal principles in the seventeenth century, when battles against royal absolutism secured, among other things, the independence of the judiciary, the abolition of torture and the emergence of parliamentary sovereignty. When I came to study this period many years later, I found it so fascinating that I wrote a book, The Tyrannicide Brief, about the achievements of regicides and levellers – the brave and inspired people who turned England, briefly, into a republic. British legal historians had largely ignored this crucible period (1649–60) and Australian academics had followed their royalist lead.

  For all these failings, the Law School had two internationally renowned departments that offered some inspiration. One was the school of Jurisprudence, headed by Professor Julius Stone, which leavened the school’s obsession with teaching black-letter law by introducing students to the modern American realist school of jurisprudence, which argued that law is what officials do in fact, rather than what law books say they should do. Stone had been a fixture at the Law School since the war, and had taught several generations of New South Wales judges how they could introduce policy into their decisions about the meaning of the words in statutes. He was a genial, pipe-smoking, patriarchal figure when I arrived, by which time his own had passed – he gave us only one lecture, to remind us to read his books. They were enormous (his footnotes took up half of each page), but his work on sociological jurisprudence – i.e. that law has social consequences – had an impact at schools in the US, although not so much in England. (I lugged one tome of 1500 pages to Oxford so I could proudly boast of having studied under Julius Stone; my tutor laughed and asked how long it had taken to read his footnotes.) But his questioning spirit pervaded the study of jurisprudence and its teaching by Tony Blackshield and Upendra Baxi: to them I owe much of my understanding of legal theory. Stone was a great figure, shamefully treated by the university because he was Jewish – its professorial board deliberately held meetings on Jewish holidays so he could not attend.

  The other department with international recognition was Criminology, headed by a warm, down-to-earth Englishman, Gordon Hawkins, and his student-friendly assistant, Duncan Chappell. Gordon had worked as an assistant governor in the English prison system, and promulgated a ready cure for much of the crime in New South Wales: remove all the criminal laws that punished matters of private morality.2 There were many of them at the time – against abortion, homosexuality, gambling, drunkenness, vagrancy, drugs, prostitution and pornography – and they spawned real crime when corrupt police took bribes, as they regularly did, to allow them secretly to flourish. I had, while studying philosophy, become an adherent to the views of the nineteenth-century English thinker John Stuart Mill and the principle of his book On Liberty: ‘The sole end for which mankind is warranted in interfering with the liberty of action of any of their members is self-protection … the only purpose for which power can rightfully be exercised over any member of a civilised community against his wil
l is to prevent harm to others.’

  The range of victimless crimes on the statute book had made Sydney a sick and secretive city, full of two-up schools, abortion clinics paying off the police, public toilets where nice young constables scratched themselves and arrested anyone who showed an interest, and so on. The ironies abounded: Sydney’s leading abortionist, Geoff Davis, and others of his trade flew to Bangladesh at the behest of the World Health Organization and the International Planned Parenthood Foundation in 1971 to perform late-term abortions for thousands of local women who had conceived through rape by Pakistani soldiers during the genocide in Bangladesh. Davis and his colleagues were hailed there as heroes and awarded medals, before they returned to Australia to pay off police to avoid prosecution.

  It was particularly galling that in Britain, where these laws had originated, they were being dismantled by the Labour government elected in 1964, largely by my Lady Chatterley hero, now the Lord Chancellor, Gerald Gardiner. But in Australia we remained more British than the British wished to remain, partly through the malign influence of Christian churches and churchmen. They had no direct political power, but politicians were in awe of their influence over voters and dared not upset them. If you want just one example of the absurdities I raged against, take the case of Hair, the smash-hit musical I had seen on Broadway, with lyrics touching upon sex, drugs and rock ’n’ roll, and thirty seconds of on-stage nudity at the close of Act I. Sydney impresario Harry M. Miller bought the rights and hired the innovative Jim Sharman to direct it. The churches and public moralists of the time manufactured outrage and in 1969 the chief secretary of the massively corrupt Askin government – a sour galoot named Eric Willis – threatened to ban the show. He thought that this would win approval, and votes, from an electorate in which churchgoers outnumbered theatregoers.