Rather His Own Man

by Geoffrey Robertson

  My efforts to highlight the deficiencies that produced the wrongful convictions of Nancy Young led me to meet Faith Bandler, a warm and wonderful woman of Islander heritage who spearheaded support for the 1967 referendum which at long last classed her as Australian by removing the words in the constitution that had excluded Aboriginals from counting as people of this country. She invited me to join the board of FCAATSI, which was leading the struggle to end nationwide discrimination in wages and employment, and beginning to talk about land rights, at a time when state and local governments, ever receptive to the demands of developers, were moving Aboriginals off their homelands to make way for white settlers. At the 1970 FCAATSI conference I gave a paper on ‘Aborigines and the Law Courts’, in which I had become something of an expert as a result of Nancy’s case: it surprised me that notwithstanding the large numbers of Indigenous people processed by the law courts over the twenty-three years of my life, there were not more lawyers to have made this injustice their study.

  By then I had begun acting pro bono for some Aboriginal families at La Perouse who’d been threatened with eviction for non-payment of rent, writing letters repeatedly assuring the minister for Lands that these families were earnest in their promises to pay rent in the future. In reality, of course, they saw no reason to pay to live on land they believed was their own, and I came to see their point of view. I was also asked to act for Aboriginals arbitrarily arrested by police at Redfern, but the problem was that my firm, Allens, made a point of not doing criminal work. I raised this with its senior partner, Sir Norman Cowper; he sucked his pipe for a moment and then explained the facts of legal life: ‘Why, lad, it’s like this. We just couldn’t have criminals sitting in our waiting rooms alongside corporate clients like Mr Packer and Mr Murdoch and the Board of Mineral Securities.’ He intended no irony, but in a few years’ time, when the mining bubble burst and many of Allens’ corporate clients were threatened with prosecution, the firm learnt to do criminal law quickly enough to keep them.

  That was why a group of final-year students formed Community Legal Aid Services (CLAS) to help not only Aboriginals but also any other citizens unable to obtain legal services because of poverty or lack of interest by solicitors. Jim Spigelman conducted an important study on unmet legal need in Sydney; Peter Tobin and Eddy Neumann spent weeks in magistrates courts collecting proof of how the poor were disproportionately denied bail; and we drew up plans for a Redfern Legal Service, to be operated by law students under the supervision of a qualified solicitor.8 The plans were submitted to the Law Society, to no effect: the editor of its journal sarcastically called for cartoons to illustrate our efforts. Such was the resistance of a wealthy, uncaring profession to evidence that its services were not accessible by the poor. The society pointed out that its members did a lot of charity work – which was true, but usually for their churches or golf clubs – and they saw no reason to change their rules to allow the establishment of a legal aid clinic for poor people.

  The fact that the law was thought – by lawyers – to have no business helping the poor was partly because there was no movement in this direction at Oxbridge, where narrow-minded dons showed no interest in the social role of their discipline. America – Harvard, in particular – was another matter. The ‘War on Poverty’ in the US had already produced 850 neighbourhood law centres which helped the unemployed to deal with rent demands, hire-purchase commitments and immigration disputes, while thirty-six US law schools were offering precisely the community legal aid services that CLAS was proposing. (We sent some photographs of them to the Law Society Journal, suggesting that they might be more informative than cartoons.)

  We turned back to the Law Faculty, demanding that it teach an optional course in Poverty Law, with a syllabus modelled on courses being offered by top American universities, translated to Australian conditions. But we underestimated the opposition, particularly from the powerful full-time academics besotted with Oxbridge and suspicious, even frightened (like Sir Stephen Roberts, during the Max Humphreys affair), of radical developments on US campuses, such as black power demands to teach black history. Were we demanding they teach ‘black law’ to help Aboriginals? We had a lot of support, interestingly enough, from far-sighted part-time practitioners – lecturers such as Gordon Samuels and Zeke Solomon, who promised to turn up to a faculty meeting (something they rarely attended) in order to vote. Nevertheless, just days before the meeting, the numbers looked very tight. The key vote was that of the professor of Commercial Law, who had not declared a position. I led a student lobby – Jim Spigelman, Alan Cameron, Denis Harley, David Marr, Sue Armstrong – to confront him with the value of Poverty Law.

  ‘I have an aunt,’ he said, ‘who lives in reduced circumstances. She would not like to be thought of as living in poverty.’

  ‘Suppose we called it “Law and Social Justice”?’ I said, thinking quickly. ‘Would your aunt very much mind that?’

  ‘No, I suppose she wouldn’t,’ he mused.

  After a fractious faculty meeting, Law and Social Justice was approved, on his casting vote. It was taught by Tony Blackshield and Upendra Baxi, and it flourished. We had to wait a few years for our community legal service, but finally it was set up in Redfern in 1977 by some CLAS mates who had graduated and gone to teach at the more enlightened new law department at the University of New South Wales. By this time, Melbourne had beaten us to the punch – the Fitzroy Legal Service had already opened. Both soon established themselves as essential services, giving the opportunity for a basic universal human right: access to justice.

  For all these well-meaning efforts, I should not give the impression that fun was off the agenda. The student Law Society organised balls – grand events at Luna Park, where dinner-jacketed judges of the future drunkenly bumped each other in dodgems or swung wildly over the harbour in aerial rides. When our guests were real judges, we would hold balls at the Trocadero and moodily smooch to restrained cover versions of Beatles hits. Then there was the infamous Law dinner, where inebriated students bawled out songs about the slavery of articled clerkship and threw bread rolls at the distinguished speaker.

  In 1968 I invited a great legal curiosity – Australia’s first, and at that time only, woman judge. Roma Mitchell took it in good part, and endured a song, the lyrics of which I had written in Her Honour’s honour. Those lyrics – of ‘Arrivaderci Roma’ – have now, fortunately, been lost.

  The star performer, the greatest celebrity in the common law world ever to grace our student dinners, was Lord Denning. He was, by the time he visited Australia in 1967, a jurisprudential phenomenon whose decisions updating old laws of contract and tort we had all read (they were, unlike most legal judgments, eminently readable) and admired. By this time he was Master of the Rolls (the head of the civil division of the Court of Appeal) and at the height of his powers. He was also an impressive speaker. At the dinner, he opened by announcing, ‘I am Master of the Rolls, so you can throw your rolls at me now.’ This completely disarmed his audience, and he proceeded to tell a number of weak jokes before elaborating on his controversial credo: ‘I must do justice, whatever the law may be.’

  I must say that he seemed a charming old English gent, and I was regretful that if I ever made it to the English Bar it would probably be too late to appear before him. He toured the Australian legal circuit like a pop star, soaking up the adoration of a colonial profession still in awe of every word in his judgments.

  When I did start appearing in the English courts, a decade later, Tom Denning was still Master of the Rolls. This surprised everyone – he was in his eighties, but not bound by a retirement age: ‘I have every virtue except resignation,’ he had announced. That was because, sadly, all the adoration had gone to his head. The after-dinner credo ‘I must do justice whatever the law may be’ was irresponsible enough (judges are there to apply the law as it is, not as they think it should be), but he had started to twist it to suit his own prejudices, which turned out to be extremely reactio
nary. He could never allow a trade union to win, or a prisoner or a homosexual or even a woman (a wine bar that refused to serve women was not discriminating against them, it was merely showing ‘gentlemanly courtesy’). He adjudged that a schoolteacher could not complain about unfair expulsion when found to have a man in her room, since ‘promiscuous women’ were not fit to teach. He had gone from being the great ornament of the common law to its great embarrassment. When I did appear before him, it was usually for a client he disliked: before they could get justice according to actual law, his sanctimonious judgments had to be appealed. Eventually, in 1982, I had the sad but necessary task of forcing him to resign. He wrote a book in which he repeated some scuttlebutt about black jurors being untrue to their oaths by acquitting black defendants in a political trial, and on their behalf I wrote a ‘letter before action’, threatening to sue him for libel. He admitted the offence and resigned immediately.

  By the end of my academic studies, I had to decide just what sort of law I wanted to practise. I was aiming for the Bar but was wary of legal argument as a means to establish truth. My final-year dissertation took the form of a Socratic dialogue, set ‘in a meadow in some jurisprudential cloud-cuckoo land’, between Chaïm Perelman (a philosopher who thought legal rhetoric had probative value), Clive Cicero QC (an amalgam of the great Roman advocate and Clive Evatt, the most cunning QC at the Sydney Bar), and Jerome Frank, an acerbic US judge renowned for his scathing attacks on lawyers and their courtroom tricks. The other participant in the play (which was heavily influenced by Waiting for Godot) was ‘the reasonable student’, i.e. me. It analysed the common forensic fallacies and wondered whether they might nonetheless help juries towards a justifiable verdict. It would never make it into production, but at least I seem to have discerned that the art of judging is the ability to reject arguments that are good in favour of arguments that are better.

  There was not much point in going to the Bar unless you aimed to become a QC – a Queen’s Counsel, in those far-off days when we stood (I usually sat) for the Australian national anthem, ‘God Save the Queen’. But there was one problem: the top silks were those adept at constitutional law, who could argue before the judges of the High Court the interpretation of placitum this and placitum that of the Australian constitution. Now, try as I might, and I did try hard, I could not bring myself to love or even to like the Australian constitution. I did my best. I returned to the Mitchell Library to read all the Federation debates. They were between men who were not real Australians; they were unevolved Australians. I looked at them in the 1901 photographs – they were British to their bootstraps, or at least from their bowler hats to their brogues. And they talked, as if they were British, about the need to keep the Privy Council as Australia’s final court of appeal, so British judges could safeguard British investments. The only discernibly ‘Australian’ spirit uniting them was not a belief in human dignity but a fervent desire for racial purity. Our founding fathers thought like Pauline Hanson. An attempt made at the 1898 Melbourne convention to inject into the draft of the Australian constitution those great US guarantees of equality and due process was rejected after Isaac Isaacs (much later the first Australian governor-general) warned of the ‘danger’ of ending discrimination against Chinese workers, while Western Australia’s premier, Sir John Forrest, openly spoke of the ‘great feeling’ Australians had against ‘coloured peoples’. Henry Higgins, later a High Court judge, assured Sir John that by rejecting the US equal rights clause he could ban Asiatics whenever he liked, or confine them to specific areas or jobs, or deport them: discrimination that was ‘simply based on colour and race’ would be unchallengeable. Aboriginals were mentioned only as a sub-human species, much like kangaroos that threatened the crops.

  What should distress modern Australians, in addition to the virulence of the racism which infected these founding fathers, is the fact that it blinded them to the advantage of adopting, like the US, a code of universal human values, a bedrock of principles upon which Australian law could develop logically and humanely. Thus Australia was endowed with a supreme law – its constitution – which lacked any systemic protection for citizen liberties. Australian constitutional law is mainly about demarcation of state and federal power – a matter of no relevance to anyone outside Australia and largely incomprehensible to anyone within it (other than constitutional lawyers).9

  The reason a charter of rights matters is that without an organising system based on universally recognised values, Australian law is becoming inaccessible and incomprehensible. It’s a jumble of statutory rules and precedents extrapolated from a forest of looseleaf casebooks and (increasingly) torrential computer print-outs. The essential quality of law – citizen understanding leading to citizen trust – is being lost. On a sociological level this means that the law makes inadequate contribution to culture and to national identity. There is nothing about human liberty in our constitution that we can point to with pride, or happily invite our children to recite.

  In my final year, something surprising happened. I came top in tax. The intellectual chess played between taxpayer and taxman intrigued me. There were ethical dilemmas – the distinction between tax avoidance and tax evasion, for example; there were sociological and economic implications for governments which believed that growth would come through tax cuts or that a more equal redistribution of wealth would result from tax hikes on the wealthy; but most interesting were the implications for international businesses operating in countries with different tax regimes, or none at all – one such dodge is now called ‘transfer pricing’. The subject that was novel was ‘blue sky law’, which ‘applied’ over large areas of the globe where the taxman had no jurisdiction. I toyed with the idea of doing a doctorate on the subject, publishing it as the first book in the field, and becoming a barrister expert in international tax law, a subject that would be lucrative enough for me to spend time, free of charge, defending Aboriginals and dissidents and others in peril in the courts. It was a nice idea, adapted from Robin Hood, but would require a further course of study, preferably at an overseas university.

  Harvard was the obvious choice. It led the world in analysing the sociological impact of law. The easiest and cheapest way to get to Harvard as a postgraduate was to win a scholarship. And, serendipitously, a new scholarship had just been announced, with requirements that seemed to fit perfectly. Even a successful career in student politics would be an asset, whereas it would be a handicap for the more venerated Rhodes Scholarship, which rated ‘ability at manly sports’ and would probably look askance at students who had caused mischief. Besides, Rhodes took you only to Oxford – this brand new scholarship would take me directly to Harvard Law School. The drawback? It was called the Robert Gordon Menzies scholarship. I asked myself whether I could really go through life bearing the name – a Robert Menzies scholar – of the man responsible for sending my schoolmates off to be killed in Vietnam. In a rare moment in which I put ideology above self-interest (and which I have since sometimes regretted), I decided not to apply for a Menzies scholarship. I would take my slim chance with Rhodes – a name, so I mistakenly thought, that could be proudly borne for the rest of my life.

  7

  The Queen and I

  My law career had really began in 1966, at the very bottom of the very top law firm in the town. Allen Allen & Hemsley served the nation’s corporate titans, its newspaper moguls (notably Sir Frank Packer) and its commercial giants: they sought its services to raise share capital, satisfy prospectus requirements and, above all, to avoid tax. Articled clerks worked from strip-lit cubbyholes, running errands for partners who worked in large offices with unimpeded harbour views. (In Sydney, your rank in the legal profession may be judged by the extent of the harbour that can be seen from your office window.) It was a privilege to be given the opportunity to grasp the lower rung of this establishment ladder – the competition was intense, and some thought it amusing that a leader of the campaign to abolish articles of clerkship should be
so keen to accept them when offered by Allens. But there was no alternative; the three-year service in articles was compulsory for entry to the profession, and I listened intently to my first talk on professional behaviour: never talk in lifts, or in lavatories.

  My first year was taken up with the duties of a filing clerk, running all over town to deliver documents. I developed the ability to cross a busy road, irrespective of traffic lights, without being run over. This skill – the first an articled clerk learns – became an irrepressible instinct, to the terror of partners, children and old ladies I have helped across the street. Other tasks were easier and sometimes instructive. For three months I was seconded to sit as the most junior member of the Allens team, billed at many times my menial salary, on the case of American Flange v Rheem Australia, the nation’s longest running lawsuit. It was all about the flange on a drum, with our American clients holding a patent which Rheem had allegedly infringed. The evidence was mind-numbing and I would occasionally nod off, to be shaken awake by an American Flange executive who feared that my drowsiness might be fatal to his company’s case. The only memorable moment came from the habit of the opposition silk of consuming half a bottle of champagne at the mid-morning adjournment. His solicitor solicitously kept it in a specially cooled bag under counsel’s desk: one morning the cork popped and hit the startled judge on the nose. At this point, everyone woke up.

  More courtroom enjoyment was to be had in defamation trials. We acted for Consolidated Press, Sir Frank Packer’s mouthpiece for the Liberal Party. Its role was to defame Labor MPs, who would sue with the help of Clive Evatt, the go-to QC for ‘defo’ plaintiffs. Sir Frank insisted on being represented by Antony Larkins QC, the monocled epitome of upper-class English taste: I would run with the brief to his junior, David Hunt, who did all the work. Evatt was cunning, and ‘the Lark’ would fall into the traps he carefully laid before working-class juries. For example, when addressing them, Evatt would deliberately misquote Shakespeare: ‘A rose by any other name would smell the same’. Larkins would jump up to correct him – ‘“Would smell as sweet”, Your Honour’. Cue Evatt telling the jury that he was just a poor Australian worker, like them, who did not have the learning of his colleague, but who did know a libel when he saw it. In those days, newspaper defendants not only had to prove the truth of their allegations, but also that they were published for the public benefit. In one case, I heard Evatt persuade a jury that making true allegations against a Labor candidate was not for the public benefit because he was only running in a small electorate.