ORAL HISTORIES INTERVIEW
The Honourable John Doyle AC QC
By Lindy McNamara on 16 June 2017
This is an interview with the Honourable John Doyle AC QC, former Chief Justice of South Australia, by Lindy McNamara. The date is the 16th of June 2017.
John, can we start with your full name and date of birth?
John Jeremy Doyle, born 4th of January 1945.
Where were you born?
Adelaide.
And the names of your parents?
John Malcolm Doyle and Mary Margaret Doyle, but she was always known as Cushla.
In your early years, whereabouts were you living?
For the first four years or so, with my maternal grandparents at Rose Park. Then briefly I think it was in a house at St Georges that my father sort of built himself. Then in 1951/1952 my father was in the railways and was transferred to Mount Gambier. Then 1953/1954 at Peterborough where he again was transferred. And then Adelaide where I went to St Ignatius from Year 5 and completed my schooling. So, 1955 onwards in Adelaide.
You’re quite an outstanding scholar, I believe – a Dux of St Ignatius?
Yes.
And the Brothers out there were -
Priests. Jesuits. They’re either Priests or trainees to be Priests.
So there were Seminarians and -
Yes, well I’m not sure if the Jesuits called them Seminarians, the Jesuits ran their own training process. So they would have been young men who were at various stages of that training process. Scholastics is what they were called, that’s right.
Did they have a strong influence on you? You have obviously had a strong faith throughout your lifetime.
Yes, I think so. Yes, I think the Jesuits thought – perhaps more than some orders – they were a little bit radical and so they taught you to question things perhaps more than some orders did. I don’t think there is much doubt they had an influence on me. I guess probably whatever school you go to, if it is a reasonably good school, that is going to have an influence on you.
The decision to study law at university, how did that come about?
As you probably know, in those days, university was very relaxed. If you passed your matriculation, you could really do any course you wanted to. I think there might have been some restrictions on medicine, but other than that you just did whatever you wanted to do.
I was not really sure, but I did not fuss too much because I knew whatever I decided, I could just enrol. I think I was thinking of doing an Arts degree, but not sure where that would lead. Then for some reason, I’m not really sure what it was, I decided I would enrol in law. I was not someone who was planning all along to be a lawyer, I just decided law rather than Arts and, as I said, I just enrolled and that was it.
And some of your classmates that you went through law school with that would be notable?
That is coincidence because I am actually going to lunch today with a group I have lunch with three or four times a year who did law with me, and in connection with our Golden Jubilee, I have got a list of people with me that I was taking along to the lunch
There is Jeff Anderson, who was a – I don’t know if he was a Chief Magistrate, but he was a Deputy Chief Magistrate perhaps and Master of the Supreme Court, Judge of the District Court; David Angel, who became a Judge of the Supreme Court of the Northern Territory. And there are various names here who are practitioners around the place - Jon Gregerson, who became a very senior Solicitor – he will be at the lunch. Jim Beatty, quite a notable Solicitor in Sydney. They are probably the main ones that spring to mind. Stephen Gerlach, Chair of Santos for a number of years; Andrew Ligertwood, an academic and a close friend of mine; Brian Withers, who became a Master of the Supreme Court; Robert Lawson, who was at the Bar as a Barrister and then a politician, Attorney-General in the Liberal government for a short time. They are the main ones that come to mind.
Quite an illustrious group that you went through with?
Yes.
You obviously excelled at law?
Yes, I enjoyed it.
It was a good fit for you?
It seemed to suit me. Yes, it did suit me. But I think also – and I have said this to plenty of people – I think I was well-organised and I think a lot of academic success depends on how well-organised you are and whether you do your revision in a good manner and that sort of thing. So I think, to some extent, my results would have reflected the fact that somehow or other, I had the knack of organising myself and not leaving things to the last minute.
You finished your studies in 1966 and then you were awarded a Rhodes Scholarship, is that correct?
That’s right, yes.
So the next two years you were overseas or just for the year?
I was awarded the scholarship at the end of 1966, but I think, technically, I then became the scholar for 1967, because I started at Oxford in September 1967, so I would have been an Articled Clerk in 1966 and 1967, but went to Oxford before I had finished my time as an Articled Clerk. So then I was in Oxford for the latter part of 1967, all of 1968 and to the middle of 1969. And then I got married over there to my wife and then we stayed in London for three or four months and came back to Adelaide in about February 1970.
What was your experience at Oxford?
Oh well, it was fantastic. Oxford is a great university, a very picturesque place. I think it opened up new horizons for me, having been born and bred in South Australia, to go to a world-class university where there were students and graduates from countries all around the world, and in the field of law among these world leaders in their areas. I think I would say it was a transforming experience. It just opened my eyes to much broader horizons.
On your return to South Australia, you were admitted in 1970?
Yes, 1970. I had to go back into Articles because I had not done the full two years.
Who were you doing Articles with?
The firm was, in those days, Kelly O’Loughlin White and Canny, and I was articled to Michael White, who became a Judge of the District Court in perhaps in mid-1976 - before I had finished my Articles there, he was appointed to the District Court and so my Articles were transferred to John Perry, who later became a Supreme Court Judge, as did Michael White.
I was admitted, I think, in late 1970.
And you stayed with Kelly & Partners?
Yes, I stayed there until mid-1976 I think it was. I just can’t remember whether I left there on the 30th of June 1976 or 1977 – I think it was 1976 – and went to the Bar with some friends. We set up new Chambers. At that stage, the only Chambers were Bar Chambers and we rented a building in Carrington Street – so not far from Bar Chambers.
This was Hanson Chambers?
Hanson Chambers. We chose the name because, in those days, that end of Pulteney Street, down to South Terrace, was called Hanson Street - and he was also a former Chief Justice - so we chose that name.
Initially it was Anderson Doyle Quick – Tim Anderson, me and David Quick. Then a few years later, we rented the other half of the building and were joined by Derek Bollen, John Mansfield and Jonathan Wells. Jonathan Wells is still there. Derek Bollen became a Supreme Court Judge and is now deceased. John Mansfield became a Federal Court Judge and retired a year or so ago.
There must have been interesting conversations between you all?
Oh yes, we had a lot of fun together and it was a good atmosphere. Six people is a good size. Those of us who were not in Court or were in Court not too far away, we would always get together for lunch just in the back room there and had a bit of a chat about what we were doing or idle chit-chat.
In your early years as a lawyer, what were your areas of interest or the type of work that you were doing with Kelly?
From an early stage, I was more interested in Court work. I was never particularly interested in things like probate. Being a very Catholic firm, they did not take on clients for divorce so I never really did any family law – I did not particularly want to anyhow. So I suppose I was doing general commercial litigation. Kelly & Co had quite a big Licensing Court practice – that’s liquor licensing – because they acted for the Australian Hotels Association. So, gradually, I was weaned onto that and when John Perry went to the Bar, I took over that work. That took up a fair bit of my time. So probably a general litigious practice with quite a big dose of Licensing Court work.
During that time, you were also lecturing and tutoring at the Adelaide Uni?
Yes. I am a bit hazy now on the subjects. Certainly, Procedure was one of them. And I think, in due course, I became the only one and I became the Lecturer in Procedure. I think I also did some tutorials in, possibly, Evidence, possibly Trusts. I am a bit hazy, but there were other subjects where I did tutoring.
So you were kept fairly busy, and I would imagine your household was quite busy. Did you have any children at that stage?
Yes. My wife worked when we came back. She was a Social Worker and she was in the Department of – well, it had various names, I think, the Department of Community Welfare, Department for Social Welfare – but our first child was born in October 1971; then another one in March 1973 and the next one was 1975, the middle of the year. So Marie went back to work on and off. I think probably at that time, number three, she might have stopped working altogether. Later, she returned to work, but there was a period when she stopped working.
We were also living in St Mark’s College until just after the third one was born, just through coincidence. When we first came back, we were staying with my grandmother. Ivan Shearer, who was a Lecturer in Law, called in to see me and said, “What about coming to St Mark’s?”, and I said, “Well, we are house hunting really”, and he said, “Well, come until you buy a house.” We finished up staying there about four years. So that also was something I was pretty actively involved in.
I became what was called the Dean. My main responsibility was filling in for the Master when he was not around, and also keeping an eye on the students. I was the one who would stay up late at night when the students were partying on and the Master could go to bed. That quite suited me because I was still at the age where I enjoyed staying up late partying on. So it was a pretty good life, actually, for three or four years.
In those early years of your career, who were mentors for you?
Michael White was a mentor in the sense that he supervised my work for some time, but also took an ongoing interest. And I think, in various ways, he always took an interest in me and would invite me occasionally to family functions and things, me and Marie. So he certainly had an influence.
John Perry, to whom I was assigned, had quite an influence in terms of approach to work. Later, when I was lucky enough to get some work – I think when I was still at Kelly & Co – junioring Brian Cox, who was then the Solicitor-General, that was very good work to be involved in and I learnt a lot from working closely with Brian Cox. They are the two or three that spring mainly to mind. There may be others who I will remember as we go along but they were certainly influential. Another one was Rod Matheson.
When you went to the Bar and went into Chambers, what sort of work were you doing then as a Barrister?
Well at the start, doing whatever we could get because, you know, we were starting from scratch. Luckily, we got a fairly good flow of work. Tim Anderson had quite a big background in personal injury work, coming from Ward & Partners who did a lot of the compulsory third party work. So, first of all, there was overflow from him because he could not do it all himself. There were two or three other firms that supported us that I did not really know much about, but they sent work to us.
So I think at the start, a bit of licensing, not a lot; a fair bit of personal injury, but the areas I was always interested in were probably commercial litigation and constitutional law, although there was not much of that around. But probably also administrative law. Gradually I suppose I cultivated the areas I was interested in, and gradually eased out of personal injury work, although I probably always did a bit of it. I did not do much licensing work, but I did a bit of it. But gradually building the practice, of commercial litigation and administrative law and a bit of constitutional law.
So then in 1981, at the quite young age of 36, you were appointed a QC?
Yes.
That was a significant milestone for you.
Yes, I think it was. I remember it was Rod Matheson who suggested I should apply – and he is another one who was a mentor, in the sense that I learnt a lot from him, but also I think he took a real interest in my career. I don’t think I had been thinking really of applying, but he, as I said, tapped me on the shoulder and said, “You ought to.” I think probably he realised that there were others around about my age who might well be applying and I think his point was if they are applying, you might as well. As it happened, there were two of us appointed that same day. The other one was David Angel, who had been in my year at law and who, although he now lives in Melbourne, last time this group I’m going to lunch with today had lunch together, he came across for that lunch. So I still see David a bit.
It probably was a bit unusually young. I was 36 years of age. But I think because of World War II, there was actually a gap in the profession, there was a shortage of people, or a shortage of good people, and it meant in my day if you were not made a Partner within two or three years of being in a firm, you would usually move on. In other words, it was really a kind of a seller’s market if you regarded yourself as selling yourself. I think, in normal times, I do not think I would have got Silk at the age of 36, but there was a bit of a gap there. Len King, who was then Chief Justice, was certainly wanting to encourage the growth and I suspect he had in mind to get some younger people appointed and boost the numbers at the Bar that way.
At that point of your career, were you quite happy doing your work as a Barrister – because I notice that in 1986 you went on to become Solicitor-General?
Yes.
So you were quite happy in private practice at that point?
We were having the time of our lives really. Certainly, the first few years, we always had fun together, we were having the time of our lives and making quite a good income. So I was quite content doing what I was doing.
How did the job as Solicitor-General come about?
The Solicitors-General were Andrew Wells, he was the first one, then Brian Cox, then Malcolm Gray, then me. Malcolm moved to Sydney and so the position was vacant. Someone contacted me – it could have been Cathy Branson who, if she wasn’t Crown Solicitor was quite senior in the Crown Solicitor’s office; it might have been the Attorney himself. But someone like that approached me and said, “What about accepting an appointment as Solicitor-General?” and that would have been in early 1986.
I actually thought about it quite briefly and said no because it was going to be quite a stepdown in income and I was perfectly happy doing what I was doing. So I said no and I really thought no more about it.
I would have known that no one had been appointed, and about four or five months later, one morning Cathy Branson called in - she used to walk to work from the south-eastern corner of Adelaide - and she said, “The Attorney asked me to ask you one more time will you accept the appointment?”. As far as I can remember, I didn’t say yes then and there, but I just felt yes, well actually I wouldn’t mind giving it a crack. So just as I almost out-of-hand said no the first time, almost out-of-hand I said yes the second time.
What changed your mind, do you think?
I am not sure, to be quite honest. I think I might have realised if I wanted to get into the area of constitutional law in a significant way, that was the only way to do it. I could get some at the private Bar, but I would never get the experience in the High Court that I would as Solicitor-General. So that was one factor.
I think the other factor was you had almost complete freedom – in other words, if you did not want to do a case for the Crown, the Solicitor-General could say, “Well, I do not think it is appropriate for me to do that.” Obviously there were certain hopes that you would do things. But anyhow, I saw that as the way to get more High Court work. I do not know if I realised it would be an excellent way to get experience in crime. It was, because I did a lot of criminal appeals, but I am not sure whether that was in my mind at the time or not.
Other than that, I think I realised that as you rise through the ranks, you tend to get more and more tied up in long mega cases and I didn’t like those cases and I thought well I don’t want to be in a position where I am either having to knock them back or, for fear of then losing too much work, have to take them on even though I don’t want to do them.
So, you know, I am not really clear, but not having thought about it in the interim, I sort of almost straightaway said yes.
And did it pan out the way that you thought?
I am not sure it did. In fact, it was much better than I thought. I have still got the letter somewhere at home that I wrote when I wrote to accept the appointment. I found when I looked at it, sometimes to my surprise, I said I wanted to be at liberty to quit, I think I said after one year or after two because I thought well maybe I will not like this.
In the end, I stayed there nine years and thoroughly enjoyed it. But that letter indicates I must have been a bit unsure whether it would suit me or not, because the Crown in those days, it did not have a particularly good reputation and I was a bit unsure about the people I would be working with and that sort of thing. In fact, they were excellent.
I think I did have just a slight niggling doubt and I covered it by saying that I did not want any complaints if, after a year or so, I decided I wanted to go back to the Bar.
Did you get that exposure with constitutional law that you were looking for?
Yes. It was an era when, rightly or wrongly, there were a couple of what they called ‘Activist Chief Justices’ – Mason for much of that time; I think it was Brennan after Mason. The High Court were doing a lot of significant decision making at that time. I think they encouraged the growth of the role of the Solicitors-General because it meant they were getting, in effect, a group of specialists which probably never existed before – there were Solicitors-General who were doing the bulk of the High Court work in their respective States whereas previously a lot of that work had been done in Sydney or Melbourne at the private Bar, the Crown briefed out. But starting about my time, the Solicitors-General started doing that work themselves and so it did develop expertise and quite a strong relationship with the Court. The Court knew that if we intervened that they would get economically presented arguments that would help them – because sometimes the parties arguments were limited. We provided a wider perspective.
So a real think tank of great minds coming together?
Yes, yes.
What are some of the cases of note that you recall back in those days?
Well, I am really hopeless - people say to me at times, “Remember this case and that case?”, and I’ll say, “I have not got a clue.” And particularly I have had people say, “Do you remember that humorous remark you made?”, and I have got no idea.
I appeared in a lot of significant cases, but just one that stands out was within about six to eight months of me being appointed, Cole v Whitfield, in which the Court undertook a review of all the cases on Section 92 and set the law relating to Section 92 on a completely different tack. That was a very significant case because it involved the High Court abandoning probably sixty years of decision making to go in a new direction.
Other than that, there were quite a significant amount of criminal appeals, a lot of constitutional cases and a fair number of general common law cases that the Crown was involved in. As Solicitor-General, as I said, if you say, “You know, I think I should do this case”, well then you do it. And because it wasn’t quite the experience in terms of Barristers at the Crown in those days, it suited the younger ones to be able to junior me and learn from junioring me.
And during those years obviously you were working for a government body. Your involvement with the government was a completely different culture than what you were used to.
Yes, it was. I think it was pretty much what I expected. I was very lucky in my time. I think Kim Kelly might have been Crown Solicitor for a short time or maybe just became CEO of the Attorney-General’s department, but Kim was both a good friend and a very able lawyer and administrator.
And then, as Crown Solicitor, there was Cathy Branson, who was a very strong Crown Solicitor, and Brad Selway, who was a very strong Crown Solicitor and a real expert in constitutional law. He was junioring me. I learnt a lot from Brad.
Having a very good CEO of A-G, Kim Kelly, and very strong Crown Solicitors, Cathy and Brad, meant that I did not really get drawn into some of the more nitty-gritty government-type stuff. I took the view that that was not really for a Solicitor-General anyhow. But in some States, the Solicitor-General had almost become a kind of confidante of the Attorney-General. Well, I did not want to be in that position, and they actually saw that as more of the role of the Crown Solicitor, not being a confidante, but a day-to-day advice to the Attorney.
So I was never sort of buried in paper, checking advices to the Attorney on this and that; they let me focus on the cases I was doing, and that suited me fine.
Who was the Attorney at the time?
When I was appointed, it was Chris Sumner and then when Labor lost office, it was Trevor Griffin as Attorney for a number of years. Trevor Griffin was Attorney when I was appointed Chief Justice and remained Attorney for a number of years after that.
And that leads us on to being appointed Chief Justice. Tell me how that evolved - was it a matter of a phone call or a few discussions over lunch? What happened?
Len King was retiring in 1995. Everyone knew that was coming up. So I would have realised the issue had arisen or would arise. I then decided at about that time that I was going to accept any judicial appointment that was offered and if none was offered, go back to Hanson Chambers. Having done the job of Solicitor-General for nine years, particularly with the constitutional work, there was a lot of theoretical stuff there – a bit like moving chess pieces around on a board – and I was just starting to think well is this real life or is this some intellectual activity that we’re all enjoying that isn’t real life. I just started to feel a bit restless.
So, as I said, I’d made a pretty firm decision that by the end of the year I was either back to Hanson Chambers or on the Bench somehow or other. I think I probably said to Kim Kelly that I would be interested and he would have passed that on to the Attorney. Whether I said that I was planning to quit anyhow by the end of the year, I’m not sure. I don’t recall any interviews with the Attorney, Trevor, but I must have had one. And I certainly had a talk to Kim about what I thought were the key issues for whoever was appointed the next Chief Justice. All I can remember is Trevor Griffin saying, at some stage, that it was coming up, the issue was coming before Cabinet, it would have been the following Monday or Monday week, if I would like to hang around after work, he thought he would be back from there by about 5.30pm or 6.00pm and he would let me know what happened. And he came back and said well you have got it. So I am ninety-nine percent sure I never submitted a letter of application, never filled-in an application form. I think it was all word-of-mouth, just said yes I would be interested and these are the sorts of things I think the new Chief Justice needs to focus on.
And what were some of those things that you were proposing?
I still might have the list at home somewhere. I had come to realise, although not fully, that the Courts needed to work more with the media. That was certainly a bit of a focus of mine – that we needed to make more of an effort to explain to the people what we were doing and how the law worked. Because I think up until then, the idea of a Chief Justice fronting a press conference or going on radio, just couldn’t even do it and some thought you could not and should not. So I think I had a sense that that needed to change. There might have been some aspects of the Court’s administration authority, which was the administrative support. I had a bit of an interest in how that might be made to work a bit better.
At that time, before you took over, was Court administration under the control of the Chief Justice?
No. The Court’s Administration Authority, as a statutory body, was established – it first came into operation in mid-1994 or early 1995. I think I signed an Annual Report which covered the end of Len King’s time and the beginning of my time, and that was either the first Annual Report of the CAA or it might have been the second. In other words, it probably was one year under Len and then the second year partly Len/partly me. But I do remember the media being an issue. There were some aspects of the administration through the CAA that I had a few thoughts on. There were certainly other issues but, to be honest, I cannot remember them.
I think the last time I looked at the list, if it is still there, I was actually quite surprised though because on my list about two-thirds, looking back, I saw were spot-on; the other one-third, they were just sort of ideas of someone who did not really know what the job involved. And probably soon after being appointed I would have realised well that third, forget about them, they were not good ideas; but the other two-thirds were probably reasonable ideas.
When you started on the Bench, was it what you expected?
Oh yes, pretty much. It was a slightly unusual experience because these things vary with the composition of the Court. When I joined the Court, there was Bruce Lander, who was about my age; I think John von Doussa had already gone to the Federal Court, but I think apart from Bruce and me, almost everyone there would have been five to ten years older than me, and some of them ten to fifteen years older than me.
Because you were 50 when you were appointed?
Yes, that’s right.
So you were quite young?
Yes. They were very good and it worked all right, but it is a little bit intimidating initially to be working with Judges like Brian Cox and Rod Matheson who had been kind of mentors of mine and a good deal older. So that was an interesting experience. But basically, it was what I expected. If you are at the Bar, you get to see what a Chief Justice does, and because of being President of the Bar Association twice and Chair of the Legal Services Commission, that gives you some inkling of what the Chief Justice does sort of in the more administrative area. Yes, it was as expected.
What was the best advice given to you when you first started in the job?
I am not sure anyone gave me any. I was listening to a program the other day on the ABC where a guy said, he was in the building trade and he said, “The only piece of advice he got from his foreman was don’t scratch your head with a nail gun.” I really do not remember any particular piece of advice. I mean, there were a few practical tips. I remember Brian Cox saying, “If you’re doing a criminal trial and you get to the point where you’re not sure what the answer is to some point that arises”, he said, “Just adjourn because they can’t go on without you, so just say you’re adjourning and walk out of Court and think about it quietly and, if necessary, ring someone” and I used to either ring Brian Cox or Kevin Duggan.
I can’t remember any particular pieces of advice. I know I decided quite early on not to interfere too much and also – I think some Judges have a bit of a tendency to try and get Counsel to agree with them – I would ask questions that might expose whether their thinking was sound or not, but I made it the practice of never trying to corner Barristers by getting them to agree with me. It didn’t worry me too much whether they agreed or not, as long as I understood what their argument was. I think it’s the old story, you know, keep your eyes open, your ears open and your mouth shut in the early months.
One thing I did learn quite quickly was something I had criticised Len for – I always felt there were times when Len could have written more on topics than he did and could have written a bit of an essay, perhaps in the Kirby style. Within a few months of being there, I realised that I agreed with Len, because if you write unnecessarily the next thing you find a year later, someone cites it to you and you think, “Well, why did I say that?” You know, there was no need to say it. I hadn’t thought it through fully because I just thought I could elaborate a bit. So that’s one thing I did learn and came to agree with Len – don’t write on things that you don’t really need to write on, just decide the case and move on.
How do you think you went with becoming more prominent in the media? Was that a success?
I think it probably surprised me a bit and probably surprised a number of people. I wasn’t what I’d call shy, but I never had any interest in trying to maintain a media presence. It was just that when I came to the conclusion that the only way of trying to maintain public confidence in the Courts was, as far as possible, to tell people what we do and why we do it. And so in the early stages I did quite a bit of talkback radio, I spoke to quite a lot of community groups – Lions, Rotary, all that sort of thing. I think that was an important thing. I think it was successful.
I think I was right in saying and thinking that you can reach thousands of people if you go on talkback radio for half an hour. You can go to a Rotary Club and all-up it takes you two or three hours getting there, doing it and getting home, and you might reach 30 or 40 people. If you manage talkback radio the right way, or just interviews on radio, which I also did, you can reach a lot of people. I don’t think I could prove in any way that it changes people’s attitude to the Courts - I think it probably would have helped - but I think people did register that the Chief Justice was coming on air and could be asked questions and so I think we got good spin-off from that. I couldn’t prove that the Courts would have been worse-off if I hadn’t done it, but I think intuitively it helped.
What was the general public’s biggest criticism was of the judiciary – that they were out of touch or - ?
No, number one was always sentencing – too lenient. And sometimes, obviously, sentencing is too lenient, but most members of the public didn’t understand how we did it – which I can accept because it’s not simple.
So number one was always sentencing. Number two was usually you’re out of touch and then linked to something like sentencing again or something else. But the fact that you can say what you say demonstrates you must be out of touch. So you’ve just got to take that. We got that a lot from Members of Parliament too. So probably those two – out of touch and too lenient. Other than that, you know, it was just a mix of things and often I think it gave me an opportunity just to explain things that were worth explaining.
Were there any cases of note that you recall where there was a big backlash from the community and you had to step in and perhaps explain why the decision had been made?
I think paradoxically if a particular case was generating a lot of heat, that would generally be a signal don’t get involved with it. Because coming on air - I can’t talk about this particular case, I’m coming on air to talk generally - when every caller is going to be ringing about the case because it’s the flavour of the moment. And so that was what I actually advised other Chief Justices – I said if there is a case like that, wait about three months and then go on air and arrange with the presenter to ask you a question not about case X three months ago, but a question which raises the same topic and then you can give it a run without getting into the situation where you seem to be sitting on appeal on radio on the case.
There were lots that caused stirs. There were some where, at times, the Attorney, when it was Michael Atkinson, joined in the criticism of the Courts in a manner that we were unhappy with. There were times when the Premier did – in particular, Mike Rann. I guess one of the most contentious cases was the case of the young man who shot a newsagent – I’ve just forgotten his name.
Nemer?
Yes, Nemer. That caused big ructions. And that was the matter where I had to go and say to the Premier, you know, I really ask you to tone down what you’re saying, you don’t seem to understand that it shakes confidence in the judiciary. It’s one thing to say the sentence is too lenient, but to start saying that proves that the Judge or Judges at large don’t know what they’re doing, it’s just a totally illogical way to approach it. So that’s one that stands out.
Without really remembering names, probably there would be perhaps a bit less than one a year that would cause a major stir. As I said, I would not usually go public while the stir is happening because it’s almost impossible then to avoid questions about the actual handling of the case.
How was your relationship with the Attorney and the government? Did you find it frustrating at times?
Yes I found it frustrating when, as I thought was the case, the Attorney not only did not back the Courts, but was joining in the criticism and when I thought criticism was unfair – that was a bit galling. But generally, pretty good relationships with Trevor Griffin over a number of years. He was good. Michael Atkinson was a very different sort of person but, as I said, I got on well with him. From time to time, we had issues over him or Members of the Parliament I thought criticising the judiciary inappropriately. I think Atkinson was the Attorney when I finished, so he would have been the last one. Oh no, sorry, John Rau - I think John Rau must have been Attorney for a few years and I got on well with him.
Did you find the admin side of things frustrating in the role?
No. It was frustrating that the Courts couldn’t get the funds they needed. There’s still the problem with the Supreme Court building, which is probably the biggest frustration in my life, because for 17 years - probably for about 15 of them - we were trying to get the government to do what it should do in relation to the Courts and we couldn’t and still can’t. But I actually enjoyed the administration.
You know, a lot of people said to me, “You must hate it”, and I said, “No, I don’t hate it at all, I find it quite interesting.” You come to realise that the administration is what supports the Court. So, to me, you can’t realistically say as Chief Justice, “I’m interested in what happens in the Courts, I’ll leave the administration to the administrators” because the administration affects how all the Courts work so you’ve got to take an interest in it. I think, in my time, the relevant Chief Judges took the same view and so did the Chief Magistrate. So we were sort of all singing off the same sheet in that respect.
What did you find the most difficult aspect of being Chief Justice?
A difficult one was always when a Judge was copping some heat in the media and the Judge wanted me to speak out and protest, and I was saying to the Judge or to the Judges, “It’s not the right time”, or, “I don’t think it’s appropriate” because there’s no doubt that there would be times when they thought that was due to weakness on my part. So, in effect, you could see in their eyes, they’re thinking, “Well, you’re just not prepared to do what you should do.” Whereas I had fairly firm views about the danger of getting down in the gutter with the government. I remember Murray Gleeson said something like, you know, “When you get down in the gutter with the government inevitably whoever wins, both of you come out with mud all over your clothes.” So I was cautious in that respect.
The problems with the Supreme Court building really got me down. You know, you just feel, in a way, a bit of a failure if after 15 years you can’t achieve it, or 17½ I think I had. And yet you look around Australia and various Chief Justices have been able to talk their governments into quite substantial expenditure. So, in a way, I felt, well, I just haven’t done well enough there. But the fact is, since I left, still the situation is the same.
Other than that, I don’t think there was really much I found frustrating or problematic. I don’t think I spent as much time going around talking to the Judges just saying, “How are you going?” – I probably should have done more of that. I was saying to someone the other day from an early stage of my appointment, somehow or other, the light went on in my head that a Chief Justice had what I call a pastoral role. And I was saying to someone the other day, when I first used that term I think some people thought I had lost the plot – thinking what is he doing talking about the Chief Justice having a pastoral role. So, paradoxically, I think I was one of the first to start talking about it, but looking back, I think I actually should have done more than I did do. But it’s something that is quite time-consuming. If you say well you should pop-in on each Judge once a month, that means, you know, 12 or 13 occasions and then you’ve got to find them when they’re there and have a yarn without being under pressure and possibly spend an hour with them and, you know, that adds up. So even once a month, it’s a little bit tricky. But I still think I probably should have done more of that. Later as it happened, through the Council of Chief Justices, I got quite involved in pushing for much stronger judicial professional development programs. I was the first Chair of the National Judicial College and so I got quite involved in that.
There is really no preparation for becoming a Judge, other than you’re in there one day.
That’s right. And particularly for the Chief Justice, you arrive and, in my case, there was a memo from Len - he obviously took the view that he would just leave it to me to contact him if I wanted any help. He didn’t say, “I’m going to come in once a week and see how you’re going”, and that suited me. I did contact him from time to time. But as you say, you arrive and while I think as a Barrister you’ve got a fair idea of what is involved in being a Chief Justice in Court, and while you probably do know reasonably well what it involves out of Court, you don’t fully understand what it will be. And the admin, while I was happy to do it and liked it, there was more of that than I’d realised. So I just set myself the target of trying to clear my desk at the end of every day and not let the admin build-up.
Just going back to the state of the Supreme Court building - in 2011 you unfortunately had an accident where you were hit by a scooter in France while you were out running and you were using a wheelchair there for a while and you couldn’t actually access the Courts.
No. I sort of could, but I had to drive into the carpark and my tippy had to come and put me in the wheelchair, because I was using a wheelchair initially. We had to go down and up steps which meant we just had to bounce down and bounce up them, which was actually quite uncomfortable. And then getting to the Court rooms was just not feasible initially while I was in a wheelchair. You know, wheelchair access just didn’t work for the Courts.
I think when I was on crutches, I was then able to get into Court and so I did sit when I was on crutches, but even that was tricky because, again, you had to go up steps, there weren’t ramps. There was always the risk of tangling up you crutch in your robe as you went up or down steps. You had to really watch you didn’t trip on your own robes.
In the ten weeks I spent in a wheelchair, I learnt a lot about disability and about the difficulty of just reaching for door knobs, doors that open towards you and are quite heavy, how you have to shuffle around the end of them while you’re trying to hold them open, getting to the toilet – all sorts of things, both in the Courts and in other places. I got a real eye-opener as to what it is like to be disabled.
In 2012, I guess it would be fair to say that people were shocked when you announced that you were retiring early at the age of 67?
Yes.
You had been diagnosed, as we found out, with Parkinson’s at that time?
Yes.
Was that a catalyst for the decision?
Not really. I think I had been saying to people that I didn’t intend to go to age 70. They probably thought, “Oh, he’s just saying that” because some Judges tend to say, “I’m going to retire early” and never do. But I think I had said I was going to retire early. I had about 2½ years to go.
I think I had sort of decided that this was going to be my retirement year anyhow, but when I was diagnosed with Parkinson’s in about March I think of that year, I thought there’s not much point hanging on, so I announced that I was quitting as from I think about May or June. It was only a catalyst in the sense that but for that I think I probably would have retired towards the end of the year or, at the very latest, early the next year. But having got the Parkinson’s diagnosis, I thought oh well I’ll go as promptly as is practicable.
So people were shocked in a way, but I think at least a few of my friends, when they thought about it, would have realised well he did actually say he wasn’t going to stay on right to the end. I’d been there 17-odd years and I actually think and thought it’s good for the Court to have a change and it’s good for me to move on. There were other things I was interested to do, so I moved on. It wasn’t moving to inactivity, it was just a change.
Looking back now, what would you consider to be your legacy or what would you hope you’ll be seeing as your legacy as Chief Justice?
I think the growth of judicial professional development. I think I could say I had quite a big influence on that, both within our Courts here and Australia-wide through the National Judicial College.
I think in a number of respects, I’ve followed Len’s approach, which would have been to encourage Judges to write judgments that deal with what they need to deal with and move on and not write essays.
I think I probably improved the listing system for the Full Court and the Court of the CCA. I think that benefitted from a slight change of approach. Although we had a lower volume of cases after a few years than we had right through Len’s time. But from the time of my appointment, almost from the time, I managed differently without going into detail, the listing of cases in the CCA and the Full Court.
I think I probably encouraged a slightly more pastoral aspect within the Court as a whole. I set up what was called a buddy committee, a small committee comprising a Judge, a Magistrate and a District Court Judge, which any Judge could go in, in anonymity, and talk about problems they’re having and things like that.
I think Len probably, by and large, ran a tighter ship than I did. I think because I was younger, you know, I didn’t expect that everyone would call me “Chief” or “Sir”, but encouraged the use of the first name and that sort of thing. So I think I probably relaxed things in a way that it was time to do, the times were changing. But I don’t think there’d be a single thing I’d say that was my legacy because, in a way, when you look at it, I think one Judge after another, one Chief Justice after another, you’re basically all going along the same track.
It would be remiss of me not to talk about your involvement with the Law Society, and you mentioned previously that you’ve been President of the Bar Association twice. In your early years, you were a member of the Law Society Council?
Yes. Have you got a note there of how long I -
1972 to 1979.
Yes. For some of that time, query all, I would have been what was called a junior practitioner. I enjoyed the Law Society work.
And I was also for a number of years on the Legal Aid Committee, as I recall it, and involved in endless negotiations with the government over the setting-up of the Legal Services Commission. I was one of the founding Commissioners and became Chair about a year before I was appointed Solicitor-General, I think. I took the view that I couldn’t really be Chair and Solicitor-General because there might be a conflict between the roles, so I stepped down.
But I was involved on the [Law Society] Council. I think I got quite involved in their program of seminars for rural practitioners. I think for two law conferences which in those days were I think every three or four years and they were a really big thing, I chaired the papers committee, which was quite a big job, actually. They were probably some of the main activities. But the big one, for me, was Legal Aid. I think I was on the Library Committee as well, if I remember rightly.
That’s right, you were for two years maybe or it might have been longer than that.
Of course, over the years, you have been awarded a number of honours. There was a 2002 Companion of the Order of Australia and the Centenary of Federation Medal the following year. What were your thoughts when you received those? Was it a big honour for you?
The Centenary of Federation Medal – I was always a bit unsure exactly how that came to be - but, you know, numbers of people got that, and that was I think very much a case of you’re in a certain job, one of these medals is going to that job, so you’re getting one. I have to say, I don’t know that I’ve ever worn it. I’m not sure if I’ve seen anyone wear it. It sort of just disappeared.
The AC, that’s a great honour, I suppose the present day equivalent of the knighthood. Again, in all honesty, I’d have to say there’s a bit of an element that if you’re Chief Justice, you’re probably going to get it. I probably got it relatively early in my time as Chief Justice. So it was a great honour, but I saw it more as reflecting the importance of the judiciary. I don’t think I would point to any single thing and say I got it because I did this or that. I presume I got it because the people who sponsored it thought I was doing, overall, a good job. But I’ve always felt, in some ways, honours like that, there’s a bit of an over-representation of people like me who you could say well, he should have done all those things; I mean, what’s the Chief Justice there for if he or she doesn’t do them all? And I’ve always felt that maybe there are more people in the community who really make sacrifices and go that extra mile who I’d like to see recognised a bit more than people like me. But it’s very pleasing to get an award like that.
And Honorary Doctorates from Flinders Uni and Adelaide University?
Yes. I think the Flinders one probably reflected the fact that I was on the Council there for I think 14 years and I was Pro-Chancellor for a number of years, which means the Chancellor chairs the Council meetings, so when the Chancellor wasn’t there, I would chair Council meetings or represent them.
The Adelaide one probably reflected more of the fact, I suppose, that I was an ex-student of Adelaide Uni and had done quite a bit of teaching and had been on the faculty for a number of years – I can’t remember how many. So that probably reflected the link through me being a student there and those sorts of things.
I noticed when you received your Doctorate from the Adelaide University, it was also in the same celebration as when your daughter, Hannah, graduated from law, is that correct?
Probably. I’d forgotten that. Now you mention it, that’s probably right.
That was in 2008. So that leads us on to the role that your family have played in your success in your career. Obviously, your wife, Marie, has been a great support?
Yes. I think, as I’ve said, she really sacrificed her career for mine. She was the one who stopped work to look after children when there were the three little ones and then she went back to work and then a bit of a pattern of back to work, stopping again. Also, when I was appointed Chief Justice, or not long after that, she retired from full-time work. I can’t remember whether at some stage she might have done a bit more, but anyhow, in that sense, she really sacrificed her career for mine and also, you know, she runs a very tight ship in the family and so, in many ways, not that I was not connected with what the children were doing, what I mean is there weren’t any particular problems because Marie always had it under control and she had always thought about it. I didn’t have to do too much thinking about it if we were on an outing or going somewhere. All I had to do was sort of be ready at the front door and she’d have everything packed and ready to go. She’s really the rock on which my career was based and on which the family was based. Having five children, that’s been a great experience.
And four of those children have followed your footsteps into the law?
Yes, that’s an interesting thing. Miriam is the one who is a teacher, but the other four all did law. They did double degrees and I think in each case they all thought that their career would be in the area of the other degree, but as they did law, they changed their minds.
Where are they all now? What are they doing?
Well in order of age – Rachel is in Melbourne at the Bar. She was Associate to Darryl Dawson, High Court Judge, who lived in Melbourne, and so she was developing a bit of a base there, so after her time as an Associate she stayed there. She’s a QC, and I think doing very well and very busy.
Sam, the next one, did law in Adelaide. He went to Oxford on a Commonwealth scholarship and did the BCL, the same as I did. He was at the Bar for a number of years and became a Supreme Court Judge about a year ago I think it was, it might be a bit more.
Miriam is the teacher. Ben’s the next one. We had three close together and then about a seven year gap to Ben. He’s at the Bar now and doing very well, doing the same work as me really – commercial, constitutional and some appellate work in the criminal area.
And then after about another seven years, Hannah came along and she’s in a firm. I would have suggested she should have a crack at the Bar, but I think she likes the work she’s doing and doesn’t seem to have any particular desire to get up on her feet herself, although she does it a bit. I think she finds a bit more flexibility in her set-up in a firm – she’s got three children – a bit more flexibility in the firm than she would have if she was at the Bar and I think that’s a factor. I wouldn’t be surprised, had she not had children, she would have gone to the Bar right from the start, but I think that she finds the firm gives her a bit more flexibility in terms of coming and going.
And you have been a good role model in a work/life balance - you’ve obviously kept yourself very fit over the years?
Yes.
When you were Chief Justice, what would your normal weekly exercise regime involve?
I took up bike riding I think in about 2001 or 2002. I can’t quite remember why I took it up but prior to that, I would have been running three to four times a week and on Saturdays with a couple of friends and that would be a big run – we’d do two to two and a half hours, probably 30 to 35 kilometres, and not really think much about it. These days, I do that on a bike and I think it’s not a bad effort, but I think how did I do that on foot. So prior to the bike riding, it would have been running, quite strenuous or long distance running in several marathons. So running probably four to five times a week, most of it early morning, like leaving home at 6.00am, once a week starting about probably 9.00am and getting home at about 11.00pm.
Then when I took up bike riding it varied a bit – still much the same regime really. These days of course, I’m not running at all now. When I first started bike riding, I think I probably rode two to three times a week and ran two to three times a week. By then I was Chief Justice and so I was getting plenty of activity and fresh air that way. Then when I broke my leg, I realised I’d have to stop running, which I did. Now I’ve been bike riding two to three times a week, not quite the same distances, and ever since I broke my leg, I’ve been going to a gym a couple of times a week and I ride there and back as well. So I’m actually exercising six days a week, but even the days I go to gym, I ride there and back, so that’s 45 minutes per session and the ride there and back.
I think from what I see of other people with Parkinson’s, if you come off a base where you’ve been reasonably fit, it’s so much easier to work at the things that help you deal with Parkinson’s. In other words, it’s no problem doing the exercise part of it, but you’ve got to learn the techniques and what I need to do. Whereas for people who don’t come off a base of reasonable fitness, there are real problems doing the exercises. If the exercise involves getting on the floor and they have trouble getting up, their balance isn’t as good, you know, their joints just don’t move as well. I have no doubt it’s helped me, both generally to be getting plenty of fresh air and exercise, but with the Parkinson’s it’s helped too.
You’ve been quite free in speaking out about your Parkinson’s. Are you still on the Board with Parkinson’s SA?
Yes, I’m on the Board of Parkinson’s SA and, as of a few months ago, on the Board of Parkinson’s Australia as the South Australian representative.
Is part of that being a high profile identity that is raising awareness?
I’ve just said to them I am happy do whatever you want me to, within reason, to speak to groups and promote the fact that it’s nothing to be ashamed about. Because there are people who still, when they get it, they try to conceal it. One woman I was talking to at a group at Victor Harbour I think, she said that for something like seven or eight years until quite recently, she’d never been able to get her husband to one of these events and, in fact, he basically didn’t want to go outside the house. He just didn’t want anyone to see that he had Parkinson’s. And, you know, that I find a bit odd, but also sad because I suppose I’m trying to say look, what’s the problem, you can talk about it, there’s lots of people in the same room here who have got it. In fact, I could never really see that – there’s no stigma that I can think of attached to it. It’s just that if you get it, you know, if you’ve got a bad tremor or something, it’s a bit embarrassing, but all you have to say is, “Well, I’ve got Parkinson’s, that’s why my hand shakes.” I guess that’s really been - apart from feeling I should put back into the community - that was one way I could, by helping the organisation, as a kind of high profile person I can to some extent to sell the message that it’s nothing to shut away in a cupboard. Don’t worry about it, it never worried me.
And in your retirement, are there other things that are keeping you busy? I know that you’re a diehard Norwood supporter – are you still getting to games?
Yes, I still go to their home games, most of them, not all of them.
I’ve been learning French at Alliance Francaise since I retired. It’s a hobby as much as anything else, but I still go once a week for three or four semesters a year. I read a lot more fiction now. I also forget things when people ask me what do I do and then I realise well I’ve forgotten that.
I’m still involved with judicial education, not in a big way, but in a modest way, and still have an interest in that. Every now and then they’ll ask me – well, for a number of years, they did ask me to do a regular session at the Judicial Orientation Program on judicial ethics and judicial conduct. I’ve handed that on now, but I’m still on the group that runs a program called Dialogues, we put the program on most years, which is aimed at Judges who are around about at the midpoint of their career and we don’t deal directly with legal topics but we try to give them a couple of days away where we stimulate their thinking. So the part of it that I, with a Queensland Judge, am involved in is I think very interesting and what we do is we look at Germany, Nazi Germany, and this time around, South Africa, and we’re saying well let’s look at these places. We get experts in in the relevant history. And the fact is the judiciary sort of failed in both places. So we figure out why did it fail, what might have made the difference and if the same thing occurred here would the judiciary knuckle down to the government or would they stand up. So, you know, I find that interesting and it is relevant to what we’re doing in a way, in the sense that it makes them think about what might happen in a sort of catastrophic situation.
We usually have a couple of good sessions on information technology – what’s the latest, what can you think about. We’ve got into a bit of a habit of having a session which works really well on neurology and, in particular, the research that is sort of suggesting that in some way you’re not destined to be a criminal, but there may be certain genetic factors that could cause you to behave in a way that leads you into crime. Obviously if that was proven to be so, it might really shake up the whole notion of sentencing because we sentence on the basis that you are responsible and you haven’t got genes that contributed to you doing what you did, whereas some of the research is suggesting that genes might have a contribution.
I’m on the Press Council, which actually can be quite time-consuming – that’s the Australian Press Council which deals with print media and social media to the extent they deal with news and current affairs. We don’t deal with television – that’s a different body. There are two Vice-Chairs of that, and I’m one of the two Vice-Chairs, and that can be quite time-consuming.
What else? I read quite a lot of fiction now that I didn’t have time to read before. Probably when I go home I’ll think about other things.
And you obviously have grandchildren that keep you busy now too?
Yes, we’ve got 15 grandchildren – four in Melbourne and the rest here. So they take up quite a bit of our time. We do school pick-ups. Not the traditional babysitting, more the sort of pick-ups and minding and perhaps if they’re sick, you know, and their mothers and fathers are both at work and so they might come to us for the day. So we do a lot of that and we see a lot of our family, the ones who are in Adelaide. There wouldn’t be many weeks go by that we don’t call in on them or they call in on us.
I’m sure there’s some rigorous debates at the family dinner table when you all get together?
Yes, although it’s more about the children and the noise they make when we’re all together. On Saturdays when I go riding, I ride with Sam, my son who is the Judge now, and we talk a lot, some of it just gossip and what’s happening, but from time to time we talk about legal issues. But the reality is, when the family gets together, it’s not really an environment we can talk about serious things because there are children of various ages crawling, shouting, yelling, and we’ve got to keep an eye on them.
Organised chaos.
Yes. I’m sure there are a couple of things I’ve forgotten, but I’m sure they’ll come back to me. So when I look at the transcript, I’ll give you a ring.
You can add them in. Thank you so much for spending some time with us today. It’s been very interesting.