Sydney University Law School was in the city centre, in a grim, squalid old building opposite the courts. 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’ – the smallest room in the building, converted from a men’s toilet, which had four chairs and a settee.10 Australia did not have a single female judge until Roma Mitchell was appointed in South Australia in 1965, although Britain was no better. I have enormous respect for the women who did suffer this suffocating sexism in the legal profession and came through: the two finest examples are Mary Gaudron, the first woman on the Australian High Court, and Brenda Hale, until 2017 the only woman on the Supreme Court. They have long been my legal heroines, and 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. 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 Supreme Court for most countries in 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 the ridiculous colonial arrangement in 1949. Why did Australia not finally pull the imperial plug until 1986? 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 its 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 top Australian lawyers connived in for too many years.
So far as teaching was concerned, the law school was really a dictation factory. Its students, after a full-time first year, had to do three years as an ‘articled clerk’ with a firm of solicitors in order to be permitted to practise after getting their law degree. They took lecture notes 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. In contrast, a good lawyer must have the ability to apply statutes and reports available to hand to a particular case. The true test of legal ability is not how much law you can remember, but how you devise arguments and solutions in applying it. I took up the cause of ‘open book’ exams, which would require creative thought rather than regurgitation. This was, I noticed when I visited on my CIA trip, how Harvard Law School was beginning to teach. There, instead of force-feeding submissive students dictated lecture notes, these were supplied a week before each class, which took the form of a role-playing exercise in which students were assigned parts and required to participate in unfolding scenarios, displaying their reasoning faculties as well as their understanding of the law. It was a way of teaching the most important lesson of all – how to apply book-learnt knowledge. This ‘Socratic’ method of teaching did not catch on in Sydney, however, where lecturers preferred to stand and deliver their wisdom by reading from typed notes, or from textbooks they happened to have written. They might just as well have sent us a tape recording.
I learnt the bread-and-butter subjects in this way, about contracts (the bargains that the law will enforce), tort (civil liability – in car-crazy Australia, 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: nothing about the fundamental (and fascinating) 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 did offer 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 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. 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 run a borstal back in Britain, 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.11 There were many of them at the time – against abortion, homosexuality, gambling, drunkenness, vagrancy, drugs, prostitution, pornography and any form of artistic licence – 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 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 will 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 (a distant relative), 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 Sydney to pay off police to avoid prosecution.
It was particularly galling as 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 idiocy that 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. A Sydney impresario 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 state government announced that Hair would be banned. He thought that this would win approval, and votes, from an electorate in which churchgoers outnumbered theatregoers.
But just a few weeks after his threat, Princess Anne, the eighteen-year-old daughter of our beloved Queen, saw the show in London and went on stage to dance with the cast. There were photographs of her in all the newspapers. The government went into crisis mode – to maintain the ban on Hair would imply serious criticism of the morals of the royal family, something even more unthinkable than on-stage nudity. Calculating, no doubt correctly, that there were more royalists than there were prudes in the state’s electorate, the government withdrew the threatened ban and the impresario made a fortune from Jim Sharman’s production, which played for years to plane-loads of sex-starved Melburnians at a theatre in Kings Cross.
When, some time later, I had the opportunity, I told Princess Anne (no one else would) how she had struck a blow for artistic freedom in Australia, and she could scarcely believe it: ‘Can people really be so silly as to ban a musical?’ In Australia in the ’60s, they certainly could.
Imbued with my new-found knowledge of criminology, showing how prohibition drives up the price of harmless pleasures, profits a criminal sub-culture and corrupts law enforcement, I joined the Council for Civil Liberties, an engaging group of liberty-conscious lawyers and academics who would spend weekends roasting pigs (wearing policemen’s hats) at a country property and distributing information, in a badly typed newsletter, about the latest police atrocities. It was the cops, of course, who were making most money out of the legislature’s inability to distinguish between sin and crime: the vice squad operated as God’s police, punishing various forms of immorality outside lawful matrimony, while on a vast subterranean level actually allowing it to flourish – for a fee, which was incorporated into its cost. We had laws against drinking in pubs after 6 p.m. (which was time for ‘the six o’clock swill’) but everyone knew where to buy a drink after hours; we had laws against prostitution, but in laneways off Kings Cross hundreds of sex workers were permitted to ply the trade, molested only by policemen they hadn’t paid.
There was so much wrong with the law I studied in the ’60s that it seemed impossible to practise it without agitating for its reform, or else going into politics to try to change it. Perhaps the worst aspect, in the sense that it affected so many law-abiding people, was the difficulty of ending a broken-down marriage. Thanks to the pernicious influence of the churches, especially the dogmatic teaching of the Catholic Church that marriages were made in heaven to last for ever, divorce was difficult, lengthy and expensive, and destructive of any post-separation collaboration (e.g. over the kids) because it required proof of a ‘matrimonial crime’ – in most cases, adultery. There had to be evidence of stains on the sheets, weekends with a blonde in Surfers Paradise or illicit passion in a car parked on a bush road and photographed in grainy silhouette by a private detective up the nearest gum tree. Relationships rarely recovered from this sort of divorce, unless both parties collaborated (which they frequently did) in committing perjury. There were lots of unhappy marriages, until 1975, when the Whitlam Labor government took divorce (but not consequent financial arrangements) out of the courts and made it a formality after one year’s separation – a process much more civilised than family law in Britain today, which still requires in most cases an admission of a ‘matrimonial crime’ of adultery or unreasonable behaviour. (The failure of British politicians to remove the requirement to make allegations of fault in order to obtain a divorce within reasonable time is not just evidence of sloth or pusillanimity: it demonstrates a deliberate refusal by representatives of the people to recognise the needs of people they are meant to represent.)12
The major flashpoints for Australian university protests in the ’60s were capital punishment, Vietnam and discrimination against Aboriginals. The death penalty was by now confined to Victoria, where truculent politicians had to be threatened by the High Court with imprisonment for contempt before they forbore, in 1962, from hanging a mentally ill man. They succeeded, five years later, in marching an escaped convict to the gallows. He had been captured in New South Wales, and we protested somewhat vainly outside the Victorian Tourist Office in Sydney (for Victorians in the ’60s, the world was small). Books written about these cases, and the work of the courageous counsel who fought to save their clients’ lives, lodged in my mind – they became sources of learning and of inspiration when I became the leading death row defender in the Privy Council between 1975 and 1995.
The case which had the most lasting influence on me was that of Rupert Max Stuart.13 It took place in 1959 in South Australia, fiefdom of another long-serving reactionary premier, Thomas Playford. I briefly recount the Stuart story to explain why it fascinated a student who encountered many of its problems when he came to practise law in Britain and elsewhere. In particular, the problem of how to tell whether ‘confessions’ made in police cells are true.
The raped and murdered body of nine-year-old Mary Hattam was found in a beach cave near Ceduna, in far-west South Australia, in 1958. Rupert Max Stuart was arrested two days later. He was an ‘outsider’, briefly in town for work on a travelling carnival, and he was Aboriginal – a peripatetic member of the Aranda people of Central Australia. During an interview with police – unrecorded – he was stripped naked and at the end signed a typewritten statement in precise, educated English, confessing to the crime. This was the only basis for his prosecution.
The local press was hysterical about the awfulness of the crime and shared the police confidence in Stuart’s culpability; the judge summed up for a conviction and the South Australian Court of Appeal dismissed Stuart’s appeal. The prosecutor was so convinced of Stuart’s guilt that he later said, ‘I would have hanged him myself; he’s nothing but an animal.’ The young defence lawyer was a solicitor inexperienced in murder trials, without legal aid to obtain expert testimony. The most important evidence came after the trial, from anthropologist Ted Strehlow, a professor who knew more about the Aranda people and their language than any other white Australian. He said that Stuart could not possibly have used the language or the sentence structure of the so-called confession. The High Court refused to order a new trial because the evidence had not been obtained in time, and the Privy Council showed no interest in the case (it never did at this time in cases involving capital punishment). However, when dismissing the appeal, the High Court did note that ‘certain matters in this case give us cause for concern’, a statement that inspired Rohan Rivett, editor of Adelaide’s The News, to launch a campaign to reprieve Stuart. His proprietor, the young Rupert Murdoch, approved. The campaign increased circulation and increased the pressure on Playford to stay Stuart’s execution until after an inquiry. Playford decided that this should take the form of a three-judge Royal Commission, chaired by Sir Mellis Napier (the Chief Justice of South Australia, who had rejected Stuart’s appeal) and including the trial judge. This was outrageous – two of the three judges were being invited to review their own decisions – but it shows the complacency of reactionary figures like Playford, who believed he could get away with appointing the Adelaide legal establishment to investigate its own behaviour.
In the meantime, Stuart’s supporters had paid for Sydney’s top QC, Jack Shand, to appear before these biased judges. As he was cross-examining a policeman, suggesting that the confession had been bashed out of the naked and terrified Aboriginal, Napier refused to allow his questions. Then, in the most electrifying moment in Australian legal history, Shand dropped his books loudly on the desk, said that he would no longer by his presence lend legitimacy to a biased tribunal, and walked out. (This is something I have always wanted to do, and have occasionally been tempted.) Shand took a risk – he was lucky not to have been jailed for contempt of court. His action actually saved his client’s life – by emphasising to the world that the tribunal was a fix. It surprised no one when it upheld Stuart’s conviction, but because Shand had demonstrated its bias, its report did not provide the excuse for Stuart’s execution that Playford had intended when he set it up. He was forced by a public outcry to commute Stuart’s sentence.
The main casualty of the saga was its hero, Rohan Rivett, who then began a campaign for Stuart’s release from prison. This would not boost the circulation of The News, reckoned young Rupert, so he sacked one of the great heroes of Australian journalism. As for the other Rupert, he served many years in prison before he was let out, but he went on to become an elder of the Aranda people and chair of the Central Land Council, in which capacity he welcomed Queen Elizabeth when she visited in 2000. Asked on television whether he’d murdered Mary Hattam, Stuart replied, ‘Some people think I’m guilty and some people think I’m not. Some people think Elvis is still alive, but most of us think he’s dead and gone’ – which most people took to mean ‘no’.
The Stuart case lodged in the minds of law students of my generation through a remarkable and moving series of paintings by David Boyd. For my money (literally – I bought one of them, as did John Mortimer), they are among the most important pieces of Australian political art, confronting, as they do, ashen-faced judges with the Neolithic masks of defendants to whom their system cannot deliver justice.
The lessons of the Stuart case were, firstly, that you could not try Aboriginals by the procedures of the law of England. Stuart could not read or write, yet at no stage had he been supplied with an interpreter, in court or in the police station. Whether or not he had been bashed, his wordperfect confession was obviously unbelievable. No lawyer, social worker or Aboriginal protection officer had been present at his interview and the very fact that he had ended up naked in the interview room demonstrated the need for a tape recording of his alleged confession. There was no ‘equality of arms’ – his defending solicitor was inexperienced and outclassed by the senior Crown prosecutor. And, most fundamentally, both in police station and in court, a defendant was overwhelmed by white authority figures asking aggressive questions to which the easiest response was to acquiesce.
By the time I came to practise law, a decade after the Stuart case, those problems remained, not only for Aboriginals but for vulnerable people in Britain and elsewhere. We urged solutions such as tape recordings (and, later, video recordings) of police interviews, improvements in legal aid and support for Aboriginal suspects when they were questioned about serious crimes. The need for these reforms was exemplified by a case we took up in 1969 – that of Nancy Young, an Aboriginal woman convicted by an all-white, all-male jury and sentenced to three years in prison for the manslaughter of her baby, who died – probably of scurvy – on the insanitary Aboriginal reserve in Cunnamulla, a town serving the rich cattle country of south-west Queensland.
The trial was in many ways a grave miscarriage of justice, from the moment bail was set at a ridiculous amount ($1,000 when Nancy was earning $6 a week), to the judge’s summing up, which invited the jury to convict because Nancy had not given evidence (on her counsel’s advice, who feared she would be overawed and overwhelmed and simply acquiesce to questions asked in cross-examination by a white authority figure). There was no credible evidence that she had malnourished her four-month-old child, who appeared to have died of disease, and the prosecution failed to obtain expert medical evidence which might support its case of deliberate neglect. This case was weak enough – the local hospital had not provided prompt or proper treatment when Nancy had brought the child in from the squalor of the reserve where Aboriginals were obliged to live, out of sight and out of mind. Aboriginal child mortality was six times that of white children, and Nancy’s prosecution was a reflection of racist attitudes in the town, which assumed that the fault belonged to Aboriginals for the refusal by authorities to provide them with proper housing and health conditions.
I was outraged, and organised public protest meetings.14 The public defender belatedly obtained some expert evidence from the state’s top paediatrician, who concluded that it was reasonably possible the death had been caused by a birth deficiency that was no fault of Nancy’s and had been hastened by incorrect treatment at the hospital. This, we thought, would be fatal to a conviction that had to be proved beyond reasonable doubt, but, almost inconceivably, three cloth-eared judges on the Queensland Court of Appeal refused to hear it. It was a shameful performance, and it attracted the attention of an ABC programme, which proved that the baby’s death was not caused by Nancy. The chairman of the local council expressed sentiments that would have been shared by other whites, both in the town and in the jury room: ‘Aborigines, I think, have the motto “Something for nothing”. They don’t get very much for nothing, I’ll admit that too. I think you’ll find if you poke down there in their reserve, they are pretty happy in their environment.’ The programme ended with a close-up of the baby’s rough grave, with a table of unacceptably high Aboriginal infant mortality rates superimposed.
The effect was so powerful that the disgraced Queensland judicial establishment had to act: a new Court of Appeal bench was hastily rustled up and a petition for Nancy’s pardon referred to it, with a statement by another expert confirming the evidence disregarded at the earlier appeal. Nancy was declared not guilty and released from jail a week before she would have completed her sentence – with no compensation for her wrongful imprisonment.
The Nancy Young case, and the extraordinary behaviour of the Queensland judges, was too outrageous to be allowed to rest in the obscurity that the second Court of Appeal verdict was designed to secure. I wrote articles which drew comparisons with the Stuart case and stressed the need for Aboriginal legal services and changes in court procedures to give Aboriginal people a chance of a fair trial. It was an important lesson: justice will not be done unless injustice is seen to be done. Judges are experts in twisting facts and manipulating legal doctrines and at giving good impressions of fairness that can fool the public – when they go wrong, it takes journalists working with lawyers prepared to speak out to unravel the errors.
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 invited me to join the board of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (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 historic 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 Botany Bay 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, but the problem was that my prestigious law firm made a point of not doing criminal work. I raised this with its senior partner; 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 its corporate clients were threatened with prosecution, the firm learnt to do criminal law quickly enough to keep them.
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The law – and its practitioners – gave the poor no access to justice, so with like-minded colleagues in 1970 I drew up plans for a legal service, to be operated by law students under the supervision of a qualified solicitor. 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. The society pointed out that its members did a lot of charity work – which was true, though 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 we were proposing. We sent some photographs of them to the Law Society Journal, suggesting that they might be more informative than cartoons.
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.
The star performer, the greatest celebrity in the common law world ever to grace a student dinner, 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, i.e. 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 bread rolls at me now.’ This 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 popstar, 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. 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 reactionary. He could never allow a trade union to win,15 or a prisoner or a gay person or even a woman (El Vino’s wine bar that refused to serve women was not discriminating against them; it was merely showing ‘gentlemanly courtesy’). He adjudged that a trainee schoolteacher could not complain about unfair expulsion when found to have a man in her room, since ‘promiscuous girls’ 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 law his sanctimonious judgments had to be appealed. Eventually, in 1982, I had the sad but necessary task of taking an action that forced 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 metaphysical 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.
It was a burden to do articles of clerkship at the same time as your university course, and the student law society urged the abolition of articles and their replacement by a six-month ‘skills course’ after you took a degree. Nonetheless, I had an interesting few years working for Allen Allen & Hemsley, which served the nation’s corporate titans, its newspaper moguls (notably Sir Frank Packer and Rupert Murdoch) and its commercial giants: they sought the firm’s 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 how much of the harbour 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 the best firm in town. But there was no alternative, and I listened intently to my first lesson 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 – has become 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 conservatives, curiously in Australia called 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’ (defamation) 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, 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 literary 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 of corruption against a Labor candidate was not for the public benefit because it was only a small electorate.
In due course we were allocated to work for a partner, and mine acted for Gordon Barton, an eccentric businessman I dubbed ‘the fast buccaneer’. He had left his law course to run a trucking company, then an airline, and now was setting up mutual funds and other financial products to finance radical newspapers and a political party that urged withdrawal from Vietnam. He was one of the very few – perhaps the only – multimillionaire in the country who could qualify as a radical libertarian. My role in his empire was street-level but not insignificant. I had to take the prospectus for each new company or fund for registration at the Companies Office. The officials on the desk had to be persuaded that the glossy brochures with front-cover pictures of the Harbour Bridge and part-finished Opera House were not in fact representations that Barton’s ‘Fund of Funds’ actually owned these prime pieces of real estate. I was successful in over-the-counter advocacy and soon Gordon and I were meeting for coffee. He did his best to seduce me away from the law, offering me the editorship of one of the newspapers he was planning. I resisted Gordon’s blandishments – I still had starry-eyed trust in law as a lever for social progress.
I did not stay long in Gordon’s turbulent corporate milieu, but he and his partner, Mary-Ellen, were warm and generous friends over the years. They bought Ken Tynan’s large house in Kensington, where the Spycatcher conspiracy was plotted (see Chapter Thirteen). For some years they ran an almost overnight delivery service – TNT Air Express – between Sydney and London, and they came to my fortieth birthday party at my home in Islington with forty dozen reasonably fresh Sydney rock oysters. The guests, who had not experienced the delicacy, were overwhelmed – as was I, by their kindness. They had a Sydney home – a mansion on the harbour with a large and comfortable boathouse said to have been used for assignations by Prince Philip. They made it available for me to use for some weeks when my assignations with Kathy Lette excited the interest of gossip columnists: we could look out on the loveliest view in the world, without the world looking in. Back in the late ’60s, my work during the day for Gordon had to be balanced with student political activities and – I had almost forgotten – attendance at law school.
Busy practitioners were in the main too busy to impart much learning by lectures. One exception was Trevor Martin, a civil liberties barrister who taught the law of evidence and was fascinated by its intellectual challenges. He would obsess over the ‘best-evidence rule’ – an archaic principle developed before the invention of the photocopying machine which prohibited the introduction of a copy if the original – the ‘best’ evidence – was available. It did not seem relevant and after I left uni I never thought of it again, until a quarter of a century later, in London, when I found myself defending some American musicians with odd names – Dr Dre, Ice Cube and so on – who were members of a group called N.W.A. – Niggaz Wit Attitudes. The tabloids called them ‘Niggaz Wit Mansions’ and incited Scotland Yard to seize their album, which had reached Britain in the form of 100,000 cassette tapes. The police were pretty confident of their case under the Obscene Publications Act, and they served us with their evidence in the form of a transcript of N.W.A. songs – ‘To Kill a Hooker’ and so on. My wife almost threw up – ‘How can you possibly defend them?’ This must never be said to a barrister, because it will always elicit the response ‘Just watch me.’ In no time I had found an expert witness who opined that N.W.A. was producing ‘street journalism’ for the public good. I doubted, however, that the three elderly magistrates would have the street wisdom to appreciate it, and Scotland Yard were already preparing to have the cassettes crushed and dumped somewhere in the North Sea.
The point when the prosecutor proffered to the court the transcript of the lyrics was the moment when memory suddenly flashed back to Trevor’s lectures twenty-five years before, and I jumped up: ‘Objection. This evidence is inadmissible. Under the best evidence rule, you cannot find N.W.A. obscene by reading a transcript of their lyrics: you must listen to the original article – the cassette tape – which is the best evidence.’
After a mad scramble in old textbooks, the court had to agree, and called on the prosecution to play a confiscated cassette. So confident were the police of victory that they had not bothered to bring a cassette player to court, and a ghetto-blaster had to be borrowed from a passing black youth. The N.W.A.’s cacophony resounded through the court for about ten minutes, until the chairman, hands over his ears, shouted, ‘We can’t understand a word! Case dismissed. With costs.’ (The last two words are always the sweetest.) N.W.A. – Ice Cube, Dr Dre and the others – went on to chart-topping success in the UK and everywhere else. This case is still the source of my street cred: when I visit youth centres, kids sidle up to me and ask with awe, ‘Didn’t you defend Ice Cube?’ The case did not make it into the movie Straight Outta Compton, but perhaps it will be seen in the sequel.
* * *
I made, quite unconsciously, my greatest contribution to changing Australian minds about human rights while editing my last edition of the law school magazine. One of the most heated questions of the moment was whether Australian sporting bodies, particularly rugby union and cricket, should continue to play against racially selected teams from South Africa. Opposition came from small anti-apartheid groups, whose demands were dismissed by sports administrators and politicians alike, with the mantra ‘We don’t mix sport and politics.’ In 1970, Australians were looking forward to rugby Tests the following year – a rematch after the Wallaby tour of South Africa in 1969, and then a Test cricket series. That was when I bumped into James Roxburgh, a law student from my final year who had played in the Australian team on the 1969 South African tour. He said that he had been deeply shocked by apartheid, and expressed some qualms about playing against the all-white Springboks again. Maybe we could discuss it? He seemed keen, and then reluctant, and then asked if he could bring a friend. In fact, he brought four more Wallabies. I settled them down in the Law School Library, took out a tape recorder and asked some questions.
The session lasted several hours, and the information they vied with each other to impart was chilling. Their four months’ experience of apartheid went beyond the segregated ‘whites only’ and ‘blacks only’ signs which met tourist eyes in buses, lavatories, hospitals, post offices, restaurants and park benches. These young men had witnessed the personal degradation of apartheid. The secret police had been on their tail whenever they attempted to meet non-whites; they had been carpeted by the team manager, who’d passed on a warning from the police that they would only harm black people by trying to fraternise with them. Whenever they played, the blacks and ‘Cape Coloureds’ would be herded into the worst seats, behind the goalposts, from where they would barrack loudly for Australia. The players were left in no doubt that South African government officials and sporting bodies were using the Australian tour as propaganda, as an Australian endorsement of apartheid. They had discovered that not only were blacks prohibited from selection for international sporting teams, but they were denied the opportunity to participate even in rugby-club training. One of the players put the case succinctly: ‘An Australian tour hardens existing attitudes and strengthens the hand of advocates of sporting apartheid, because it implies Australia’s approval of that system … You have to understand how big sport is there, how much it means to the country’s image.’
I came to the crunch – would they play against racially selected South African teams again? They later said they had not decided, before the interview, to make any sort of joint declaration, but when put on the spot they were driven by the logic of their earlier answers to say ‘no’. It was a big statement – it would mean sacrificing their places in the next Australian side. But all of them said it, firmly and individually.
They had presented the most powerful case for stopping political football, emphasising their sincerity by ruling themselves out of selection. It was a decision that had news value, and the editor of The Australian got to hear of it and offered to publish. The interview was given headline publicity, and it shocked Australian rugby union to the core. Its officials threatened to blacklist the young men and end their careers, and tried to suggest that words had been put in their mouths by some communist agitator. The boys stood by their opinions I had recorded in the interview and accepted speaking engagements to repeat them. For the first time, Australians were provided with information about sporting apartheid from those whose views about it deserved the greatest respect – players who had directly experienced it and had sacrificed their own future in an attempt to end it.
The rugby tour went ahead at the insistence of Australian officials without action by a lily-livered conservative government. On the other side, the leader of the Labor Party, Gough Whitlam, announced that he favoured a ban, and the leader of the trade unions, Bob Hawke, actually imposed one on the Springboks’ travel arrangements, forcing them to charter planes, trains and automobiles to get around the country. Peter Hain came out from England to inspire the protests, and my dear friend Meredith Burgmann (many years later, president of the NSW Legislative Council) was in the forefront of the disruptions, showing extraordinary courage: she was dragged from the pitch by police, beaten up by angry fans and actually jailed by a benighted Sydney magistrate.
It took a great Australian sportsman – indeed, the greatest – to end the sordid business of supporting apartheid. Sir Don Bradman was chairman of the Australian Cricket Board: he read my interview with the Wallabies and began a curious correspondence with Meredith Burgmann, arguing out the case for and against sporting contracts with Africa. She seemed to convince him, because he cancelled the Test series due to be played later in 1971, writing, ‘We will not play them until they choose a team on a non-racist basis.’ Australia did not officially play cricket with South Africa for the next twenty-two years, until it allowed the selection of black sportsmen.16
In campaigning against racism and advocating the end of apartheid, withdrawal from Vietnam and lifting of censorship, as with so many other causes in the ’60s, we were on the right side of history. It didn’t feel like it at the time: we’d grown up in a society with its mind firmly closed and a police-bashing in store if you wanted to open it too far. Fast forward half a century, from the stultified post-war era to our present multiracial, multicultural, vibrant society, and perhaps we students can take some credit for the change, although success came in large measure because of the moral bankruptcy of the conservatives. Progressive reforms were welcomed by most and turned out to have none of the dire consequences our enemies had predicted. Dinosaurs still roam the earth, with an instinctive inhumanity that prevented progress for so long on gay marriage or, in Australia, the constitutional recognition of Indigenous people and ending the sufferings of refugees in offshore detention centres. They are, however, much less formidable than the opposition we faced in the ’60s. Had we been vouchsafed, as students in 1967, a view into the society of 2018, we would have been amazed and delighted – there has been real change as well as plus ça change.
* * *
In 1962, my parents had acquired a small block of land in Longueville, a quiet bayside suburb in Sydney, inhabited mainly by doctors and elderly but comfortably-off widows. Tennis ace John Newcombe lived around the corner, Nicole Kidman would later live up the road, and overlooking the ferry wharf was the house of Jane Perlez, a girl of my own age with whom I bonded on the city bus. She was to become one of the world’s best journalists. She began as a cadet on the Australian newspaper, working there until its proprietor, Rupert Murdoch, sacked the editor for writing anti-Vietnam editorials. She left for New York, vowing never again to work for a Murdoch paper, and soon made her name as city editor and ballet critic for the Post and media columnist for the Village Voice. Then Murdoch came to town and took over both papers and, true to her vow, she resigned, giving up fame and power for a column in the small-circulation Soho News. Eventually she was taken on by the New York Times, where she still reports from Kenya, Pakistan, China or wherever – her by-line on a story is a guarantee of its accuracy. I would later spend a lot of my working life defending journalists and became friends with the older generation of Australians – Phil Knightley, Bruce Page, Tony Delano (whose daughter married my brother Tim) and Murray Sayle – but I always admired Jane, the girl on the bus.
Our small family house in Lucretia Avenue is still there: it was where I would always come home, several times a year, for forty-five years, to kiss my parents and go to sleep in a small bedroom full of memories. I was at its desk, working on an essay one fine afternoon in 1967, when the ABC radio news announced that ‘a very important frogman’ had disappeared off Portsea, a beach near Melbourne. It was some hours before it could bring itself to verify the frogman as Australia’s Prime Minister, Harold Holt, whose body was never recovered (he was probably ‘taken’ by a shark, although conspiracy theorists still claim he was taken aboard a Chinese submarine). It was in the room opposite – the laundry – where I heard from my ashen-faced father of John F. Kennedy’s assassination. JFK had saved us from the Cuban Missile Crisis and I can’t think of any politician for whom I have had such total trust – I was only sixteen, and far away from his faults.
Longueville has changed now – the widows have been winkled out and replaced by lawyers, and the big houses at the end of the point are being bought by wealthy Chinese, but it still radiates the calm that comes from water and gum trees and genteel prosperity. In my teens I would venture along the wooden planks of the harbour pool, watching the vapour trails of the big jets landing and departing, their engine whoosh punctuated by the tinkling of masts in the bay. I had no doubt I would depart on one of them – but I had yet to decide how, and whence.
* * *
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 else 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. The subject that was novel was ‘blue-sky law’, 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, as it led the world in analysing the sociological impact of law. The easiest and cheapest way to get there as a postgraduate was to win a scholarship, and, serendipitously, a new scholarship had just been announced, with requirements that seemed to fit perfectly. A successful career in student politics was said to be a qualification, whereas the venerated Rhodes scholarship was usually confined to those who played rugby, had attended private schools and did not cause trouble. In any case, Rhodes led 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 Cecil Rhodes: a name, so I thought, I could proudly bear throughout my life.
There was much in the study of law in Australia that was also tempting me to England. Certainly there were more exciting developments in the US, but London was where judges made our law, and where the English Law Lords decided our final appeals, in the quaint old Downing Street courtroom of the Privy Council. Interesting, to my juvenile legal mind, was the fact that the Privy Council’s reach extended to most other countries in the Commonwealth – it was still the final Court of Appeal for Singapore, Hong Kong, Malaysia, New Zealand, Mauritius and most Commonwealth countries in Africa. That meant it had a broad deathpenalty jurisdiction, as capital punishment was still in full swing in most former colonies of the British Empire.
John Kerr introduced me to Garfield Barwick, the Chief Justice who had been Australia’s premier advocate before becoming Menzies’s Attorney General. It was a small dinner party, and Kerr encouraged Barwick to tell this wide-eyed student about his exploits in Downing Street before the judicial time lords of the Empire.
Sir Garfield told me what appeared to be his favourite story, the one about ‘thirteen little Malaysians’. They were all communists sentenced to death for subversion, who had appealed to Her Majesty’s Privy Council to stop their executions. Twelve of them had the sense to retain Barwick, who appeared for them in Downing Street to take a very short and very technical point about the validity of the arrest warrant, which the barrister for the thirteenth appellant, who made a florid appeal about the iniquity of the death penalty, did not bother to take. When the judgment came down, Barwick’s argument had succeeded and his twelve clients were released. The thirteenth, whose case was the same in every way, failed in his appeal and was hanged. Everyone at the table laughed – that’s what happens when you don’t retain Barwick. I found the story shocking but also intriguing – so you win human rights cases not by emotional rhetoric but by becoming a good lawyer. Maybe one day I could persuade these mighty lords of English justice to strike down death penalties because they were legally as well as morally wrong? That would mean I would have to go for postgraduate study in Britain.
The Barwick story did make a necessary point, for those who seek to practise human rights law. It is that a solid grounding in common law and professional practice is essential equipment for success. So many bright-eyed and bushy-tailed idealists think they can jump into human rights work after a quick law degree, but if they want to make a difference they really must first learn techniques and technicalities, and all the tedious precedents which may eventually be shaped by the advocate into arguments for change. They must be able to absorb the history of the subject, and be solidly grounded in the ethics that animate legal practice. They must learn how to interview potential witnesses, how to keep a case file in order and how to keep themselves from penury – and to keep their lips sealed in lifts and lavatories.
* * *
The scholarships funded by the will of Cecil Rhodes were meant to identify ‘the best men for the world’s fight’ – not the best women, who were not allowed to compete in those days. Cecil had a dubious background, initially having made his fortune by starting a rumour that a company (in which he held shares) had found gold, and then selling his shares before the rumour turned out to be untrue. His behaviour contributed to the Boer War and his subsequent conduct in the Cape was politically questionable and morally unscrupulous, but he had won posthumous acclaim by donating his fortune to bring to Oxford scholars from countries as diverse as America, Australia, India, Jamaica and Germany – by 1970, about seventy a year in all, including one from each Australian state. A Rhodes scholarship was well funded, and came with guaranteed entry to an Oxford college. I decided to try for the New South Wales scholarship. The word around town was that my state’s selection committee was overly impressed by the ‘manly’ sport of rugby union and avoided ‘political’ candidates. I had played tennis for the university and I had played student politics, so I applied without any great expectation of success. I was, however, shortlisted and summoned to attend, with other candidates, the seven-man selection committee, which would convene at Government House under the chairmanship of Sir Roden Cutler.
My recent part in the acquittal of Sir Roden’s alleged tomato assailant did not bode well, and as the appointed hour approached I lingered over urgent corporate work in the office and misjudged the time it would take to walk to Government House. I was not aware that the selection would involve seven candidates rotating around the seven selectors, ten minutes with each, before being asked to withdraw while the committee deliberates on their choice. (These days, candidates are forced to eat a four-course meal with their selectors, presumably so their table manners can be taken into account.) The panel comprised three former Rhodes scholars, three leading businessmen and Sir Roden, who was tapping his wooden leg in impatience as I arrived a minute or so after the musical chairs had started. I had to think quickly to explain my tardiness. The excuse worked in my favour. I had this important commercial client, you see, who needed immediate and urgent advice, and although it might mean ruining my chances of a Rhodes, I was bound by my professional code to put my client’s interests first. The businessmen certainly liked this explanation, which had an element of truth. Another selector was a professor of English, with whom I had a hilarious conversation about the Leavisite split in the English department at Sydney – it was he who characterised it as a fight between ‘the maddies’ and ‘the dullies’. His was the only laughter in the large, lounge-chaired sitting room of Government House, and I felt I had one definite ally. But last came a man I knew only by reputation, and his reputation, as a university vice-chancellor, was not favourable to student politicians. His name was Zelman Cowen.
To my surprise, he was a delight, and we struck up a most animated conversation about the role of law in improving society. He was obviously testing me but I saw no reason to dissemble – my goose, I assumed, had already been overcooked by my tardiness. He was provocative and I allowed myself to be provoked. When the whistle blew to signal the end of the last inquisition (Sir Roden was nothing if not military), the seven candidates lined up and trooped out, leaving the selectors to decide over tea and cakes. I felt annoyed with myself – had I not underestimated the walk to Government House, I might have been in with a chance. But I need not have worried. I learnt later that Sir Zelman had been my greatest advocate, his arguments overcoming what I assume were Sir Roden’s doubts. Many years later, when Zelman was appointed chairman of the British Press Council, his most ardent critic would, ironically, be the man he had sent to Britain. The Press Council was paid by the press barons to pretend to discipline tabloid journalists. I wrote a book denouncing it as ‘a confidence trick which now fails to inspire confidence’, to which Zelman replied, ‘Mr Robertson shouts with reason.’ Neither of us, however, managed to reform the body before a committee of inquiry came to the same conclusion, and it was wound up.
My scholarship elicited some comment in the press about the selection of an ‘unorthodox’ candidate, by which they probably meant a state schoolboy who did not play rugby. The main news was about the Queen’s next visit: she would be sailing into Sydney on her yacht Britannia, and Princess Anne would be with her. There would be a royal luncheon on the boat, and to the usual array of state ministers always eager to suck up to the royals were added a number of gold-medal-winning sportsmen and the 1970 New South Wales Rhodes scholar. I was intrigued by my first gold-embossed invitation, and, my republicanism notwithstanding, I brushed aside my younger brother Tim’s insistence that I wear a political anti-pin – anti-apartheid or anti-Vietnam or anti-conscription, I cannot remember which. I was not going to exploit the royal visit, like everyone else. I was going to graze with the dinosaurs, and I did not want to frighten them off.
The guests were arranged in a semicircle in the Britannia stateroom for the fabled meeting with the Queen. There were fifteen of us, and she stopped at each person to ask a few of her trademark questions: ‘Have you come far?’ ‘Isn’t the weather nice?’ I was at the end of the semicircle and watched her performance: the smile, for which she had injections to strengthen her cheeks, was a marvel. It would stay in place for five minutes, then it would start to slip. When it reached a certain level, she would make a movement with her shoulders, and literally hitch the smile up. The exercise was repeated a few times as she progressed around the semicircle. I thought her a real pro.
At lunch I was seated next to Princess Anne, and we discussed LGBT rights. Seriously, forty years before that acronym came into being. Our topic was a recent English court decision in the case of April Ashley, née George Jamieson, who had joined first the Merchant Navy and then a Parisian drag cabaret before having gender reassignment surgery and becoming a model. She wanted the gender on her birth certificate changed, but the judge refused. It caused a lot of controversy, and Anne was on the side of reforming the law to uphold trans rights. I suggested she might undergo a transgender operation herself so that she could inherit the throne (she was last in line below her wimpish younger brothers, Andrew and Edward). She quite liked this idea. We compared notes about Hair. She could not believe the stupidity of the state government in threatening to ban it, and laughed when I told her that by dancing on stage during the London run she had influenced the turn-around. If Charles did eventually lose the throne – by becoming a Methodist or Catholic or plant-worshipper of some kind – I thought for a moment that Anne would make a very acceptable head of state for Australia.
After the lunch, we were escorted out to the wharf for what was, for some guests, the really important part of the occasion: having our photographs taken for the gossip pages of the Sunday newspapers. I could scarcely believe I would be pictured along with the socialites I had pilloried and satirised for years. ‘If you can’t lick ’em, join ’em,’ I joked to the Olympic gold medallists on either side as we posed for the Sun-Herald photographer, who assured us that the picture would be in the next edition. It was, I have to admit, with some anticipation that I opened his paper a few days later. The gold medallists were pictured all right, guests of the Queen on Britannia, but there was no sign of the man in the middle. The Rhodes scholar had been carefully airbrushed out of the photo: presumed intellectuals did not belong on Sydney’s social pages. It was a neat reminder of my nation’s real priorities.
Leaving Australia was always a matter of contemplating return – my generation did not have the despair with which some expatriates renounced the dreary country of the ’50s. The leading silk at the Sydney Bar, Bill Deane, offered me the chance to ‘read’ with him on completion of the Rhodes scholarship, and I gratefully accepted. He invited me to dinner at his house, and showed me an Aladdin’s cave of books – his ambition was to become a novelist, rather than to go on to become a judge. So, actually, was mine, and I watched his career with interest as he became instead a federal and then a High Court judge and then Governor General. It is likely that his brilliant judicial career, exploring ‘implications’ in the Australian constitution favouring democracy and freedom of political speech, has been more important to the nation than any additions he might have made to its literature. The instinct of the cobbler, to stick to his last, is right for most of us. I have sometimes been tempted to do something different – to make a home on an island and write a novel, to become a TV chat-show host, possibly to become an honoured placeman in some establishment or other. The fact, sad but true, then hits home: I am nothing more or less than a jobbing barrister, and should content myself with that lot. It’s not a bad one.
But it can be a hard one. Bill pulled from his library a book for me to read on the voyage to England. It was QB VII, by Leon Uris, the lightly fictionalised account of the defamation case that was brought against him by a former Auschwitz doctor he had exposed in his earlier work Exodus. It contained one of the most glowing tributes ever to be paid to a member of the Bar: in the middle of the trial the author walks at midnight in the Temple, where barristers in London have their offices, worried sick about the outcome that could lose him his money and his reputation. He suddenly sees the lights on in the room of his own advocate, and is filled with awe at a professional who could so relentlessly dedicate himself to another’s cause. Gerald Gardiner, Lady Chatterley’s great defender, was that counsel (his junior, Louis Blom-Cooper, was burning the dawn oil). His room was known as ‘the lighthouse’ long before Uris saw its beams and identified with awe the obsessive commitment which is a barrister’s most overlooked yet most valuable quality. Did I possess it? The book left me in no doubt that the course I had chosen would not be easy, and that sacrifices made for a good client would need a different rationale when made for a bad one. That I had yet, in my own mind, to find.
And so to farewell. There would be no tears at my departure: brother Graeme was glad to be rid of me, brother Tim excited at my prospects, and my parents proud that I was leaving as a Rhodes scholar. My girlfriend seemed resigned – she had, I suspect, a more reliable prospect in mind. There was one piece of parting advice, from my mentor Michael Kirby (an older student politico and later a High Court judge), which made an indelible impression. He took me aside and wagged his finger. ‘Let me make this prediction. You will stay in England and be a great success at the English Bar, until the day you appear in the highest court – the House of Lords. As you address the Law Lords, you will not be able to resist that temptation of yours to make a joke. And that will be the end of your career.’
I lived in fear of Michael’s Delphic warning for many years, and never made jokes when appearing in the House of Lords. But in 2010, when the Law Lords were transferred to the new Supreme Court and I was called upon to address them in their first case, I could not resist. I was appearing for The Times and The Economist and other papers concerning an appeal against secret justice – the use of acronyms to hide the identity of parties to litigation. As I came into the court I noticed its list for the next three months, full of ABCs and XYZs. So I began by saying, ‘Your first-term docket reads like alphabet soup.’
It wasn’t a very funny joke, but it caused a flutter in the audience and the sound of indrawn breath. It was hard to tell the judicial reaction until they handed down judgment some weeks later. It began, ‘Counsel challenged us in opening by saying that our first-term docket read like alphabet soup…’ It was official: the Law Lords, now they are Supreme Court justices, appreciate humour. The case is known as the ‘Alphabet Soup’ case, and it has served as a precedent for the occasional joke from the Bar table, although not yet for a funny one.
Notes
10 I never dared to venture into this tiny space – the description is by Mary Gaudron, quoted in Pamela Burton, From Moree to Mabo: The Mary Gaudron Story (Perth: UWA Press, 2010), pp. 45–6.
11 G. Hawkins and N. Morris, The Honest Politician’s Guide to Crime Control (Illinois: University of Chicago Press, 1969).
12 In 1996, the House of Commons passed a Bill to remove the need for allegations of fault, but it was never implemented. As recently as February 2018, the Justice Secretary, an obscure commercial solicitor named David Gauke, said he was ‘studying the evidence for change’ but would not ‘rush to a conclusion’ – see Francis Gibb, ‘Justice Secretary pledges to review divorce laws’, The Times, 5 February 2018, p. 4.
13 See Ken Inglis, The Stuart Case (Melbourne: Black Inc., 2002).
14 See G. R. Robertson and J. C. Carrick, ‘The Trial of Nancy Young’ (Australian Quarterly, June 1970), pp. 34ff.
15 For an example see Sir Louis Blom-Cooper QC, Power of Persuasion (London: Hart Publishing, 2017), p. 341.
16 See Larry Writer, Pitched Battle: In the Frontline of the 1971 Springbok Tour of Australia (Sydney: Scribe, 2016), pp. 56–70.