This is an interview with the Honourable John Ronald Mansfield, AM QC by Lindy McNamara and the date is the 9th of November 2018.
John, can we start with your full name and date of birth please?
Well, you've got my name, and the 25th of August 1946.
And the names of your parents?
Ronald Evans Mansfield, that's my father, and my mother was Phyllis Mary Thomas.
Have you lived in Adelaide all your life?
Yes, lived in Adelaide all my life.
What did your parents do? What was their background?
They were both brought up in Adelaide. Mum — they were an Irish Catholic family, Dad in a sort of Catholic/Protestant family. He'd served in the Second World War as a pilot officer flying Wellington bombers. He went to CBC and then, after the war, he studied at night and became an accountant. He died quite young, at the age of 50, in 1970. My mum was brought up in Adelaide. She worked during the war in the post office receiving the telegraphs advising of the deaths of soldiers. Her job was to sit there at night and receive the messages and turn them into a telegram, with others, and then they would get delivered to the next of kin the next day saying, "Sorry to tell you …" That was pretty stressful.
That was a tough job to do.
I think once I was born in 1946, and my parents had two other children younger than me, and I think my mum didn't work after that until after my dad died.
So, your mum basically brought you up by herself?
Yes, she was a home mother. My father was working, and had a second job on some nights. We lived in a flat before I can much remember, down at Glenelg, and then we built what was, in effect, a Housing Trust home in Wattle Park — then the outskirts of Wattle Park and the outskirts of the suburbs just over Hallett Road. So there was little east of our house apart from a teacher's college that had been there a long time. Since then Wattle Park has filled up, all the hills have been developed. When I was a little tacker, we'd just run around the paddocks to the east of us.
Was your whole schooling at St Ignatius?
I went to Loreto until grade two, because there wasn't any grade one or two at St Ignatius, and then after that I went to St Ignatius for the whole of my schooling. That was a very new school then. It had only started about two or three years before and the campus was all at Norwood, the whole of the junior and senior schools in what is now a very small space, and was then a small space, but it didn't seem so small.
What are your memories of your school years? I think I read somewhere where you spoke about the fact that you weren't always the first person chosen for the team?
I was just an average kid.
What was the influence of the Jesuits on you?
Well, that's a very interesting question that you could talk about a lot. We had some good teachers and we had some bad teachers, or not so good teachers, but that is a view formed in hindsight, like at every school. The good teachers were quite inspiring. At that particular time, there were a lot more Jesuit trainees than there are now and the process of training a Jesuit involved, once you left school, doing two years of work in what they call humility, three years university degree and four years of theology, and then you taught at a school such as ours. So, these guys were about 24–25 coming to teach us and they were all young and inspirational and energetic and idealistic. So, they were pretty inspirational, that group of people. Some of them didn't stay to be priests and some of them did, but a lot of them became quite good friends with the kids they were teaching, and still are to a degree.
Some of the classmates that you had were quite a band of luminaries that went on to go into the legal profession with you.
Yes, I think that was probably just coincidental in a way. There was a middle-class or lower middle-class lot of families from that area because it was the outer suburbs. We got kids from the sort of slightly north east, and so there were a lot of Italians and Poles: a lot of people who come to Australia in families after the war. It was a good mix of kids.
For an average student, how did it come about that you decided to study law?
I studied law because my father wanted to be a lawyer and never had the opportunity to do it. When he came home from the war, he didn't have the money. He went into the services straight after school — I think he was a clerk, but pretty much straight after school. Then he had a family, so he had to get a job, and then he studied at nights and worked part-time doing other things just to get enough to survive.
How was law for you, then? Was it a good fit?
Yes, it was a good fit. I mean, it's consistent with the Jesuit philosophy or the teaching philosophy we had about people being treated equally, and a strong sense of what is right and wrong. I found it very congenial and I was quite good at it.
University days were happy days?
Yes. We had a very small law school. Our intake, I think, was about 60 or 70, so it was very small and the number of students in the whole law school was relatively small, so we knew each other quite well. We knew our lecturers quite well. We had a lot more student contact with lecturers than they do now, and once again we made some friends from our group, who are teachers and who are still friends. We have a 50-year reunion next year of those admitted in 1969.
Can you remember their names?
The principal one that most inspired us, that we most have contact with, is John Keeler, because he stayed — he's retired — but also Michael Detmold, Michael Harris, Brent Fisse, Michael Trebilcock and Ivan Shearer.
Have you remained in contact with a lot of the people who you went through university with?
Yes, quite a lot, because a lot of them did become lawyers. A lot of them stayed in Adelaide, so in a small profession, you continually have contact with them.
According to the record, you graduated in 1967?
You were articled to Kelly and Co, is it?
Did you have some good mentors while doing your articles?
My first principal, John Kelly, was a very inspiring man. He had Parkinson's disease and he died while I was still articled to him, but he was just a great teacher, and he was very erudite. Kelly and Co was sort of the Catholic firm in Adelaide at the time. He was just a wonderful teacher, and a wonderful life teacher and values teacher and all that, so I was really lucky to be exposed to him.
What were some of the values that he instilled in you that you took with you?
Most of the things were thinking about other people, treating everybody equally, not thinking you're better because you're a lawyer — because you're not. Everyone has strengths and weaknesses and everyone is entitled to a fair go. Then, when he died, I was articled to John Perry, who subsequently became a Supreme Court Judge and was equally an inspiring but rather younger person. John Kelly was good friends with John Bray, who became the Chief Justice, and a man called Max Harris, who you might have heard of. They used to drink at the Sturt Arcade Hotel occasionally. So, that was a very intellectual little group. In a sense that inspired some interest in literature on my part.
Yes, because I notice — we'll get to that later, but obviously you've been a collector of historical books for a long time.
A little bit.
Moving along with your legal career, you were admitted on March the 4th 1969, and you joined Alderman, Clark, Ligertwood and Rice, and became a partner?
Yes. Well, not straightaway. Quite quickly, but that was quite commonplace in those days, that you become a partner quite quickly.
What type of work were you were doing with the firm?
I was doing the gophering thing, and that was small stuff. There was a lot more small litigation because lawyers’ fees weren't, as I understand it, as significant a component of doing things as they now are.
That firm had a very broad practice because each of the partners had areas of expertise and, somehow or other, I came to get involved with the litigation side of it, and they had a number of insurance companies. They had a partner called Phil Rice (who was sort of a general lawyer with broad interests, including criminal law), so I did cases with him. I just did litigation, and then the firm started to concentrate on workers' compensation litigation, and that's what I did for quite a few years.
Plenty of court work?
Yes, court virtually every day — probably because we didn't have a separate Bar in those days, it was just starting. Chris Legoe, who started it, started it probably in the late 60s or early 70s, but it was two or three people only. It wasn’t uncommon to get a barrister to appear in your cases from another firm, and after a while that's what people started to ask me to do. So then I thought, Oh well, I might do it a bit more full-time. The separate Bar was then growing, so I went to the Bar in 1979.
What was that like? Did you know that you would be able to make a living out of that?
No, but you sort of had a reasonable degree of confidence that you would, and I expected to get some work from my firm, because somebody had to do it anyway. And I did, but it was, for a little while, fairly car accident, personal injury, and insurance-type work.
Was this with Hanson Chambers?
So, that's where you went to work?
Yes. As you evolve into doing other things and get recognised for doing certain things moderately well, you get more work.
What were those things that you got recognised for?
Over time, I got recognised because I knew a bit about what was then the Trade Practices Act and now the Competition and Consumer Act, because that only came into force in 1975. I had an interest in that for some reason, so I probably got to know it as quickly as a lot of other lawyers around Adelaide. Then commercial litigation was growing, because there were a lot of cases in the 80s as a consequence of the financial crash. There were claims against auditors for not doing a good job, and that sort of thing. I was doing those, and so I got in more in that area and less in the other areas. I did some criminal work while I was at the Bar, but I didn't get enough time to keep doing that, so I stopped doing that and the more immediate trade practices and just general commercial litigation work was my main practice area.
Were there any cases of note during that time that took a lot out of you?
I wouldn't tell you if it did. We've all done good ones and bad ones, but I think you just do your best and work as hard as you can and you work with very good people often, I’ve found.
Some good mentors for you during that time?
I mean, obviously you were carving your own career.
Yes, and I worked with other Senior Counsel. Phil Rice I worked with a lot when I was in the firm, and then subsequently. He was a person who was one of those intuitively brilliant people who knew human nature, and that's a great asset as a barrister — or as a human really — to understand where other people are coming from, because if you can understand why they're doing what they're doing, or at least try to — nobody ever knows anybody else perfectly — but if you understand or think you understand where they're coming from, you can shape your process and your management of the case in relation to that. Either your own clients or someone else's — your opponent's clients. Just to make sure it comes out as best it can. I did that.
It sounds like a good lesson for any young lawyer to follow.
Yes. There's some very nice stories about that, but I won't tell you them now.
So, 1985 you were made a QC?
Was that a surprise?
It was, sort of. Your peers are being made QCs at about the same time, so it wasn't like, Wow, I didn't want this. You've got to say, Oh, that's a nice thing.
Was it a time for reflection though? From your beginnings in law, where you were, by your own admission, just an average student, you’ve then reached a certain standard in your own profession. Was it nice to be recognised?
It is a status I never dreamed of. It's very nice to be recognised. It's an incredible honour. But I think people in the profession know where you stand in relation to others and you can tell from a quality of work whether people think you're doing a good job.
We were a much smaller profession, so one of the things which I'm sure all the people you talk to of around this generation have told you, it was an incredibly lucky generation in terms of progress in the law, because the Second World War had taken out a lot of the legal profession, so it was a very small profession and the opportunities to do work were much greater. Now, as you said a while back, it's very hard to get a job, even if you're really clever. Whereas, it was almost routine that if you wanted to, you could get a job after you got admitted, because you were in articles, so you knew the local profession and the local lawyers knew you. Everyone knew pretty much who everyone else was, and then the opportunities to do the hard work were much easier to get, because there was so few of us, relatively speaking. It was small Bar in those days, it was developing, so it was just a different world. When you look back and think, How did I get there? It was a lot of luck and it was being in the right place at the right time.
I'm sure talent came into it as well.
Well, yes, but there's lots of people now with similar or much better talents that don't have the opportunities that I had to get where I got to.
Another key thing on your CV is being involved in the State Bank Royal Commission. Can you talk a bit about how that came about, and the work that you were involved with?
Well, that took quite a while and it was very tiring and exhausting. I was lucky to do it, because it's so interesting. In a sense it's a dream job, and it probably was for all the barristers who were involved in it. The collapse of the State Bank wasn't too good a thing. I got asked to be the counsel assisting. I had a friend and a person I very much admire — Simon Lane — who was my co-counsel or junior counsel and we had a good team of lawyers working on that. But it was a different exercise, because not many people do them, at least in that scale. You don't really know where to start, so it was really a very big consultation process too. Sam Jacobs QC, who was the Commissioner, had his guiding hand on all of it, because he had vast commercial law experience as a barrister and as a judge.
I'd had another mentor in the legal profession, called Bob Fisher, who was also a very eminent Queen's Counsel, and he went on to the Federal Court. Both of those people helped me along and taught me a lot. When you think about how you do commercial litigation and how you manage it, it took quite a lot to organise and pull it all together, and then, as you're working as a team, you develop themes, and then you consult with all the other people that are involved, for other interest groups or other people to see where their themes are, and it sort of evolves. So, it evolved into the Royal Commission Report.
Was it a big learning process for you?
Well, yes. Everything you do, you learn from, so the bigger the matter, in a sense the more you learn. You learn from your opponents, and in State Bank we had some very good counsel who you learnt from. You learn from the people you deal with. So, I think we got a pretty good idea about what went wrong, and why it went wrong.
That was a two-year process?
Yes. It's a big chunk out of my working life and very demanding in terms of time.
Very long hours indeed.
Then, in 1996, tell me how it evolved that you got the call to ask you whether you would take the position as a Judge of the Federal Court?
When I'd been in the Law Council, one of the people who was a couple of years ahead of me in that process and had been the President, was a man called Daryl Williams, who was, at that stage, the Federal Attorney. He and I knew each other, not in an intimate way but as lawyers. A vacancy emerged in Adelaide because Cathy Branson, who is also a friend of mine, decided she wanted to move from Adelaide to Sydney, and she was already on the Federal Court. So, there was that vacancy and I got asked to do it. So I did.
Did you have to think about it for long? Had you considered going into the judiciary?
Not really. When you start as a law student, you don't think you'll ever get a job, and when you get a job, you don't think you'll ever be any good at it. Then, as you get to be quite good at it, you don't think — you never expect anything really.
If someone had said to me when I was at school or when I started law that I would end up there, I wouldn't have even thought it was within my dreams. So, having been asked, the answer was yes. I was very pleased to take it, because the Federal Court, in a sense, was the natural home for the use of my technical skills, because that's the sort of work I did. I also had a more Australia-wide perspective than a lot of others, because I'd been President of the Law Council and seen the Australia-wide issues. Because I'd been working so hard that was also an opportunity to give more time to the family. So, it fitted a lot of things at the time, yes.
What was the adjustment like, suddenly being on the other side of the bench?
A pretty lonely life. I think everyone would tell you that, but in Adelaide, when I was appointed, we had Maurice O'Loughlin and John von Doussa as the other judges and they couldn't have been more supportive and helpful. Maurice died soon after he retired. John is still going and is still a very good friend. And Cathy, who was here and left us for Sydney, she’s remained a very good friend. Then, in that Court, it is a very collegiate court, both under Michael Black and now James Allsop, so you get to know the other people and you’ve almost got sort of shared backgrounds without knowing each other. So, you get a lot of companionship, friendship and camaraderie out of that process, and that’s quite good.
I was reading about your involvement with Native Title law during your time on the Court. You had 145 judgments in Native Title and there were 24 court decisions during that time. Can you explain how the interest in Native Title originated?
It’s an opportunity which you take. When I started, Maurice O’Loughlin was the Judge for the Northern Territory. He worked at the Federal Court. South Australia has had a long history of dealing with the Northern Territory. I was actually a QC in the Northern Territory as well, because I practiced up there quite a lot.
When he was about to retire, I asked if I could take over that mantle, which I was able to do. It’s now done in a different way, but this was then.
The Native Title Act had come in in 1993, and the claims from about early 2000 were transferred from the National Native Title Tribunal to the Federal Court because of the limited jurisdiction the Tribunal had that the High Court told them about. It meant we suddenly had this big influx of responsibility for deciding those cases. A large number of them, not surprisingly in the earlier stages, were in the Northern Territory. So, I inherited all that and became interested in it, particularly in relation to the management of those cases, because they were very difficult and they were happening all around Australia.
A number of Judges who did the same as me got very interested in it and did it well. There was a previous and ongoing body called an Aboriginal Land Commissioner under a separate piece of legislation called the Aboriginal Land Rights (Northern Territory) Act 1976, where there had been some experience of a parallel procedure. The former Chief Justice of the High Court, who at the time was on our Court, Robert French, had been the President of the National Native Title Tribunal for a few years after it was established when that Act came in. It was just a group of Judges who had the opportunity to become involved in it, and as soon as you become involved in it, and know more about it, it becomes something you can do well and usefully. My retrospective shame is that I didn’t know enough about it before. We didn’t learn about it at school. We didn’t learn about Aboriginal rights much, if at all. We didn’t learn about it at university. So, it was really a coincidental thing, apart from those lawyers who did criminal law and had a developed social conscience in that area that led them to work with Aboriginal groups from the early 1970s, when indigenous rights were starting to grow and the sort of disgraceful things which our legal system was imposing on Aborigines was being exposed and evolving away from that. But those people were working there in the 1970s, 1980s, and I admire them immensely.
They were trailblazers, really, in some respects.
Really spectacular people. There’s a significant number of men, and some women, who did that and who are still around the place.
To understand the claims being made by the indigenous groups, you had to go out and meet with the Aboriginal communities. Did you go and talk to them on their land?
No. The claims came into the Federal Court, and because Judges don’t create the cases – I can’t just say I’m going to do this. You’ve got to have a case and then you have to address the issues in the case. So, you can only do what each case gives you the opportunity to do.
All of these were very early-day cases, but because it was a relatively informed and relatively coherent group of Aboriginal communities in the Northern Territory, because they’d had the Land Rights Act up there operating since 1976, they were probably more structured and more aware. A lot of the testing that was done under the Native Title Act was done in the Northern Territory. That’s really where I was lucky to do it, and then you start learning more, appreciating more, and doing what you do. We got more issues to address in terms of testing of things, and we did more than perhaps in other parts of Australia because the communities were more coherently structured and there were more exposed rights under the Land Rights Act. So, it was just luck again, and then you choose to do it and you take the opportunities.
You obviously had a real interest in it as well.
Oh yes. I don’t know anybody who does that work, or has had the opportunity to be exposed to the work, who doesn’t see how important it is.
Were there any cases during that 20-year period that really impacted on you, that you felt very strongly about? Or you were perhaps concerned for the groups before you?
Some of them went for a long time.
I was just reading about the Barngarla People on the Eyre Peninsula who went through the courts for nearly 20 years.
Well, the short answer to your question is that I don’t really like to talk about individual cases by name, because all of them have different issues and different rights and different people. You have to do what you think is right according to the law and to the people.
But I have to say that the first trial case I did under the Native Title Act, which is sometimes called the Alyawarre case, or the Davenport Murchison Ranges case, was a fantastic introduction to the more elegant and sophisticated nature of Indigenous communities than I’d ever dreamt possible. I think anyone who has done that, as you learn the structures of societies and the anthropological material, you actually see it at work. They are wonderfully sophisticated communities. So, that’s a great privilege. That really sets you right in a way to understand what you’re dealing with, and part of the process which I inherited was the concept of hearing evidence on country. So, if you did have a case involving some Aboriginal people, everyone who has done it sees that, particularly for the remote community people, they are much more comfortable on their country, telling their stories and giving their evidence at that place in an informal way, than they are sitting in a court room, or any room. So, like sitting here talking to you would not equally be as difficult, but there’s no colour. It’s just a different capacity to communicate and different enthusiasm.
Did you feel it a privilege to go out and talk to them on their country?
Yes, absolutely. And I think, to the credit of the States and Territories, they acquiesced in that and progressively became very supportive of it. So now it’s a routine procedure. Within a few years it became quite routine. My main current activity is the Aboriginal Land Commissioner for the Northern Territory, so I am still doing that.
That’s still ongoing?
Besides Native Title, competition law was something that you were quite strongly involved with?
One of the regular and significant litigants in the Federal Court was the ACCC. That work broadly divides into consumer litigation and competition litigation. And because of my interest in the trade practices, and I again had a degree of knowledge about that, I got to hear some trials about it. That was just random because the cases are randomly allocated. Probably a bit less randomly but still moderately randomly allocated in Full Courts. So you get to maintain your expertise about that. The Australian Competition Tribunal was a creature of statute as well and it was prescribed that the President of that Tribunal had to be a Federal Court Judge, and then it had Deputy Presidents who were also Federal Court Judges, and they rotated. I suspect because of my interest in it, I became the Deputy President, and then, when someone else left, I was invited to be the President and I did that for about five or six years.
2011 to 2017 I believe. It’s good to get that on record.
That’s an area of great interest too. That area made me very interested in economics: what economists can say and can’t say, and that then leads you to econometrics and those things where there’s more sophisticated modelling. I got quite interested in that, and still am. And you go to conferences regularly, so you’ve got two or three conferences around Australia every year, about that, and some international ones. So, you put a lot of effort into keeping up on the knowledge on that, because it is very technical.
You retired in 2016 due to age?
Yes, old age.
How would you like your time as a Federal Court Judge to be remembered?
I was hardworking and courteous, moderately good. Yes, I think that would be about right.
I’m just going to throw a few other things out there that you’ve been involved with and then we’ll get onto your involvement with the Law Society.
Helping to set up some court systems in the South Pacific and South East Asia, how did that —
Oh, that’s a bit overstated.
Or involvement with that, perhaps?
Probably. The activities of the Federal Court were through what we call the International Development Committee, which I got onto. Australia and New Zealand have always, or at least for a very long time, had an interest in supporting the Pacific jurisdictions, in the South Pacific in particular, and we provided Judges to their Courts of Appeal on invitation, both Australia and New Zealand.
We provided quite a number of Judges to Fiji until the coup, both Australia and New Zealand and then those Australia-based judges resigned. So, we, as a Court, did that. I was interested in that, and I’ve always been interested in the Pacific, as you probably looked up with my book interests. One of my favourite writers is Somerset Maugham, because of his time spent in the Pacific. A lot of his stories are written around the Pacific. So, I went to every two years to the Pacific Judicial Conference of the Pacific Judges. Australia and New Zealand would provide some support and provide some speakers on invitation, and it was run by the Pacific Courts. As a result of going to one of those, I was asked to sit on the Court of Appeal in Vanuatu, which I still do.
That’s a nice warm climate to go to in the middle of winter.
Yes. Some others in the Federal Court sit in Tonga. Some Australian Judges who were in the Federal Court sit in the Solomon Islands Court of Appeal. A number in Fiji until recently. Nauru, until recently, in different circumstances. New Zealand supports Cook Islands and some other smaller islands. So, it sort of works.
Over that more recent period, AusAid, as it then was, became more specifically engaged in providing support for those Courts as well, as part of their aid, so it was a bit more structured and specific about how the judicial education program was run. In the last 10 years or so, the Federal Court has provided the structure (which NZAid supports) for the educational support to Judges and the Justice systems in those countries, but that’s been largely not Judge driven. There are some programs they run which Judges still help in, supporting, but fundamentally it’s much a broader structure than that.
Let’s move on to your time with the Law Society, the Bar Association and the Law Council.
Too many committees.
According to the records, you started your involvement with the Law Society when you were admitted and you were part of the Public Relations Committee. Does that sound right?
It’s news to me. It’s not in my memory, if it’s right.
Okay, well, in total it says that you’re on 11 committees and on the Council for nine years.
Yes, that sounds about right.
You were Chair of the Professional Conduct and Practice Committee for many years, and, of course, President in 1988–1989?
Why was it important — because you obviously were pretty busy at the time?
I can’t remember what it was that made me get involved in the Law Society, but it was a terrific thing to do.
In fact, I think there was a thing called the Legal Aid Committee when I started practice. The Law Society used to provide legal aid to the community. I don’t know if anyone’s ever written it up, but it was entirely voluntary and it was administered by the Law Society. It was very demanding and it was done all for nothing. I think that’s how I first got involved, because someone asked me if I would be prepared to help them. There weren’t too many people available to do it. I don’t know how many people were asked, but I was asked, and that involved spending one night a week going through all the applications for legal aid made to the Law Society, to assess them and then work out whether they should get aid and on what terms and to who they should go.
So, that was the sort of level of involvement that my first memory is, with a number of other senior or moderately senior lawyers, who were senior to me. That’s how I got involved, I think, and I found that sort of quite important because there was no other legal aid. It was only when the Whitlam Government came in and introduced the Australian Legal Aid Office, as it was first called, and started to take over and institutionalise some legal assistance, that that Committee went away. So, I think that’s how I got involved with the Law Society.
Were you involved in the Legal Aid Commission when that got up and running here?
Ultimately I was, but not in the early days.
During your year as President, can you remember some of the main issues that you were facing at the time?
You’ll have to remind me.
I think one of them was that you did an advertising campaign to raise awareness about the legal profession within the wider community.
Yes, it’s like that French saying, which I won’t give you my French version: The more things change, the more they stay the same. If you look at agendas, they haven’t changed too much over the years. They’ve become more technical and a bit more complex, but it’s still the same issues. We all tried very hard. We all felt that the legal profession wasn’t properly understood.
Do you think it is today? Do you think the average person out there would know what is involved?
No, not much better, I don’t think, because people mostly only have contact with a lawyer in times of trouble, and then they only have contact with a lawyer once.
The opportunity to spread a sense of understanding about what lawyers do and how conscientious they are, or mostly are, how hard they work, or mostly work, and the fact that a lot of them work for relatively little money — all of that’s not understood.
As a result of the developments in the 1980s, particularly with the financial crisis and then the big accounting firms becoming bigger, and then the big law firms becoming bigger, and then time charging and all that, it’s changed very dramatically, so that, in a sense, that’s quite alienating to most of the community.
When I started practice, in my firm we charged by the item of the work we did. But we also weighed it up like that and said, How much was involved? How much can this person afford? And you cut it down, you never put it up. You might have worked out it was a dollar a letter or whatever, and then you worked it down to just what it was. Although, I suspect there were very rich lawyers, even then. There weren’t a lot of them in the way there are now, I think, but I might be wrong.
Does that horrify you to think how people are charged now by members of the legal profession?
I don’t understand how it can work so well with the community as a whole, but it is typical of the community as a whole. So, lawyers don’t charge more than other professions. It’s just we seem to have sort of gone up the scales as with all the professions. I mean, medical, if people go to the doctor. GPs are okay, but if you go to a specialist, unless you’ve got insurance, a lot of people just can’t afford it.
And too many people cannot afford lawyers. How do you say to someone who is earning $60,000 a year or $80,000 a year, “I want $20,000 of your money now, to produce a result, but I’m not sure what the result will be”?
I think the idea that there are rich lawyers for the rich and poor lawyers for the poor is more established now than it was in those earlier days, because that divide wasn’t quite there. And there are many highly paid lawyers who do a lot of pro bono work. It was when the big cases started to happen, which I got involved in, suing auditors for millions, that things changed a bit. There’s not much point in me looking back on that and saying, how if at all, I would or could change the system; it’s just how we’ve evolved.
Looking at your time as President, you purchased the new premises for the Law Society. Can you recall that? I think just the Waymouth Street, was that the one where you went into then?
Yes, someone else was managing that. Brian Withers was managing that. So, I supported him in whatever he did, but I didn’t get too deeply involved in it.
You had a stint as Chair of the Bar Association. Can you recall what happened during that time?
No. Once again, the agendas were all pretty much the same. The Bar Association, when I started practising, the work of lawyers was boundaried by the States. There was very little transference. Then that gradually got broken down and now it’s encouraged to be a national profession. We’re all a bit slow in getting into that sort of final structure, but it is, in practical terms, a national profession.
You were involved with that as the President of the Law Council?
Yes, I was keen on that.
In 1993, 1994 you were President of the Law Council and that was one of the key items on the agenda. How hard was it to convince others of what you believed should be the case?
There were some very tense meetings, but I remember the meeting where eventually the principles were first adopted for a national legal profession, in concept, which was during my time, and it’s moved forward from there in leaps and bounds really. It was one of those things that had to happen. People were giving up vested interests, or coming from vested positions with greater or lesser degrees of insight and greater or lesser degrees of generosity and practicality, and it had to happen and just happened when I was in the Chair, when that sort of combination of events got to a crisis or peak. Then it evolved quite slowly, but it’s been progressing.
One of the problems we had when I was doing that process was because the Law Council was “owned” by its constituent bodies, which were all the State Law Societies, and then it became the State Law Societies and the State Bar Associations. The South Australian Bar Association or Western Australian Bar Association and Tasmanian Bar Association have only become members of the Law Council discreetly over the later years, because earlier they didn’t have the numbers to be eligible. So, the numbers have all changed, and then, within that structure, we had what we call sections of the Law Council, which were the areas of practice, which were business law, family law, criminal law, et cetera. And in the Business Law section, there were all the big firms. So, they were saying, “We’re not getting enough of a say in this process, because we have to go through New South Wales Law Society and Victoria Law Society.” And that’s made up of a lot of little practices as well as the larger firms. So, the whole range of interests was sort of merging or clashing, as it were. There have been big structural changes since my time, and they seem to have worked that out now.
Yes, I would have imagined that when you were President there would have been some quite heated discussions.
Oh, there were strong views, yes.
The other thing that I think is important, or was important to me, is that I was on both the Legal Aid Committee of the Law Society and the Legal Aid Committee of the Law Council for a good many years. I spent a lot of time there, which was, in a sense, also an introduction to the disadvantaged and particularly the Aboriginal disadvantaged. The Law Council Committee was an interstate body, and even though we were not a national profession at that time, that Committee was very national in its perspectives and we were all confronting the change by the introduction of the Australian Legal Aid Office and the Legal Services Commission, trying to support them and get more money for legal aid and trying to work out where the needs were. Lobbying as far as we could. That was a really important committee and a very rewarding committee, and the people who were on that, who I shared that with, were all incredibly committed and inspiring people. Brian Withers was one of the very active members of the committee.
Does it concern you that there’s still that problem of getting funding for legal aid in this day and age?
It’s too big a question, because one other thing since the national profession emerged is the extent to which the lawyers in Australia provide pro bono services for which they get relatively little recognition. One of the things which emerged is the pro bono budgets which the big firms have. Those who are in big firms where they have these higher daily rates do a huge amount of pro bono work virtually for nothing, both in the Pacific region as well as within Australia. Now everyone responded in a way that they thought was most appropriate and that, in a sense, covers a lot of legal needs which are not conventionally within the Legal Services Commission. I suppose the difficult question is, if the Government, as it did in Whitlam’s time, wants to be the provider of and accountable for legal aid, then they should provide the resources to run it. More recently, governments have said, “We’re not responsible for legal aid,” so they’ll provide you with some resources but we don’t have to provide you with resources that meet the demands. Now we’re seeing progressively, as Judges, how much less work is supported by lawyers through legal services, so much of the civil work is not supported. Most of the migration work is not supported. It’s all done pro bono or with relatively little reward, and lawyers have just stepped up and done it, because it’s that conscience within the profession which I think is a shared and wonderful feature.
It must be heartening to see that that’s still there.
I’m pretty proud of being a lawyer. When you know how much people do feel about that, and even the people who you might say are at the top of the earnings chain still have that conscience and would — if you’re running a big firm and you’ve got to pay the rent — it’s a very difficult job in its own way. It’s a business. But they still have the capacity and the time to do that or put in structures that enable that to be done. So, that firm is doing its share.
Maybe there needs to be another public awareness campaign like you had when you were President, focusing on that in this day and age.
It is an ongoing process.
Now, just going back to yourself, you’ve had a few awards bestowed upon you over the years. Can you talk about the member of the Order of Australia 2009? How did you feel when you found out that was coming your way?
Honoured. They’re incredible privileges, but they’re a product of what you can do because other people support you, and particularly families. That is because we do a lot of things which take you away from family. So, it’s good, it’s a great honour and you feel very privileged. I think there are a lot of people who do a lot of things that never get recognized and you’ve got to remember them too.
How did it compare to the Brian Withers Award in 2011, which is an accolade from your peers?
I didn’t expect that at all, so that was very satisfying as well. I didn’t expect either of those awards, but as a sort of a symbol of recognition, that’s a very flattering one.
You just mentioned your family before — you’re married to Kate?
Yes. Have they all gone into —
No lawyers. Okay.
They would ask: Why do you want us to work as hard as you did? Why do we want to work as hard as you did?
That’s a fair point, I guess.
That’s what they said. And it is a fair point.
Yes. So, a lot of sacrifices from your family to enable you to do what you’ve done. It’s been an important part of the journey. And juggling.
Yes, very much so. You have that structure behind it, yes.
I would imagine, in those early years, trying to juggle a young family and take on all those other cases — that’s a big ask.
And all of that. Yes.
We need to talk about the fact that you’re on the Board of the Art Gallery. Is that still the case?
But you were at one time?
Yes. I got on the Board of the Art Gallery because, in the Law Society, we had an annual meeting with the media. One particular week we’d had a meeting and one of the people who came was a woman called Winnie Pelz, who was, at the time, I think, the Head of Department of Arts. That very Saturday morning, Kate and I were reading the Saturday Advertiser and she said, “You’re boring. Why don’t you do something outside the law?” So, I looked up and there was this advert that said: Are you interested in a State Board? And this is while I was practicing still. It was just before I was appointed a Judge. So, rather than applying, I rang up Winnie, because I’d sat next to her just two days before, and said, “I’m interested in this, but I don’t want to get on the Australian Dance Theatre, really, because I just don’t have a rapport with that.” She said, “Would you like to go on the Art Gallery Board?” And that’s how it happened. It was fantastic. It’s been a fantastic interest. I always liked the Art Gallery, but it’s the sort of thing you’re either on the inside or the outside, or you have to work to get on the inside, in the sense of people thinking about you.
So, I was put on, and then once you’re into that system, you see how many other people are doing brilliant things. The system with the Art Gallery Board was, and still is, that you get two three-year rollovers, which I did. At the end of that, I was asked to Chair the Foundation, which I did for another nine years, until I decided I could not do it properly as I was so busy.
Can you talk about the interest in collecting historical books?
Well it started with Somerset Maugham, because I told you of my interest in the Pacific, and then, for some reason I can’t remember, I was talking to a person who had a book collection. I love books, I’ve always loved books, and I was shown a book collection in Sydney which was sensational. First editions, and then you learn about what should be important to a collector — you have to have a dust cover and it’s got to be in prime condition, ideally signed, and ideally an association with something to do with a person. So, that’s how my interest developed out of that. I started to collect Somerset Maugham books because I liked them. And then I started to make sure that, when I got them, they were first editions. And then I started to look for signed first editions, of which I have a reasonable collection. I’m not going to keep it much longer because that’s just a hobby.
It’s almost like a work of art though in itself, isn’t it?
Yes, it is; that’s the thing. Then I started to collect all of David Malouf’s books. Some of his quite early editions weren’t readily available. And because it involved me in the Art Gallery, when Christopher Menz was the Director, I went to a party at Christopher’s place just before an Adelaide Festival started and David Malouf was there. I had a coffee with him the next day and brought in all my David Malouf books that hadn’t been signed by him. So, I got a full set of David Malouf signed first editions and had a lovely chat to him. He’s a lovely man.
That was fortuitous. When you’re collecting books, how do you go about finding the missing books within the editions?
Oh, it’s just fun looking through the internet mainly, or Michael Treloar used to look for me. When I was collecting Somerset Maugham, people around Australia would know, the booksellers would know, because I’d go on asking, and then you’d have a chat about it. So, I’d say, “I’ve got one of these, do you want it? I’ll send you a message?”
Yes. So, when you travel, if you go overseas, is it one of your favourite things to go into an old book store?
It used to be, yes. I started, but didn’t go more than about a year, collecting first editions of the first hundred books printed in Australia.
How many did you get?
This was when I was at the Bar. About four only. And I no longer have them. But we were in San Francisco and I went into a book shop and there was a copy of Cook’s Journals. There’s only a small print run in the world. And there was a copy of Cook’s Journals. It was quite a lot of money — much more than I could afford. And then this American walked in and said, “Have you got any old books that are really significant?” And the bookseller said, “Yes, I’ve got Cook’s Journals here and X here.” “I’ll take them all.” He didn’t care about the price.
What about other hobbies and interests or sports?
When you get a family, you haven’t got time for organised sporting, because you enjoy the family. I played a bit of golf, but not much, except on holidays. I did like walking, and I like the Norwood Football Club, as you know.
I’ve been going to Norwood since I first went with my dad in the early 1950s.
And still get out there most weeks?
I’m still a member. No, I don’t get to see every game — Friday nights are not good because I can’t take the grandchildren. Saturday afternoons are good, because I can take the grandchildren then.
How many grandchildren do you have?
So, now in your retirement years, you’re not just sitting back and doing nothing.
I say I’ve retired.
What are you doing with yourself?
I’ve been a bit too busy to settle down yet. I’ve done a few government inquiries, which have taken more time than I liked, and I’m doing the Land Commissioner work, which has, again, taken a lot of time just at the minute because I’m trying to finish some things.
I like going out for lunch with friends, spending more time with my wife, and we travel. We have two children who live in New York. So, we’re going there next week for two weeks.
Reflecting on nearly fifty years since your admission next year…
1969. Yes, 50 years.
What are your reflections on being a lawyer and being a member of the legal profession for so long?
I think my views would be shared by most of those people. We’re an incredibly lucky generation and we were lucky to be educated in a way that encouraged us to take the opportunities that we have had, and most of us have taken. To have had moderately good health all the way through and a good family is a great joy. So, you wish you could provide that for your family and the current generation, but it is much harder for them.
And your advice for a young lawyer?
Go for it. Know yourself and then go for it. See, you have to have a sense of values, don’t you? Whatever your values are — I’m not saying mine are right or wrong, but everyone has their own sense of values. Within that, then you have to decide where you want to go and how hard you want to run. A lot of people would compromise a career for family. It is a difficult balance, and harder now because, generally, both partners have significant careers.
Times are different.
When I started working, my wife worked for the Public Service for a Judge, and when we had our first child she was obliged to retire. You couldn’t stay in the Public Service. So, what an improvement we have now. On the other hand, most partners in marriage now work together and struggle to buy a house.
Different times. So different that people in my position — you have to let go, don’t you?
Well, on that note, thank you so much for your time this morning. It’s been great talking to you.