This is an interview with Morry Bailes by Lindy McNamara. The date is the second of June 2017.
Morry, can we start with your full name and date of birth?
Charles Morland Bailes, and my date of birth is the 24th of September, 1965.
Have you always gone by the name ‘Morry’?
I started life as Morland. That was my mother’s preference. But my mother died when I was six, and somehow between then and now – I’m not quite sure how it happened - I became Morry.
When I applied for my job, for my first and only job in the law, at what was then Tindall Gask & Co, I went in to the interview following one of my colleagues, who had been interviewed before me, and introduced myself as Charles. They said ‘aren’t you Morry? The person that we interviewed before said you were Morry.’ So I just gave up at that point, and thought I would just be Morry for the rest of my life.
What were your parents’ names?
My father was Harold, he was a Yorkshireman. My mother was Florence, she was from the West Coast of Scotland. I got a good flavour of Britain from the beginning of my childhood. My mother, as I said, died when I was six, and my father remarried. He had strokes and heart attacks, and eventually died when I was 12. So I was actually raised by my stepmother Ann, who was a strictly religious woman, and as hard as nails, but I benefited enormously from being raised by her.
Do you have other siblings?
I have natural siblings. I have an older sister, who lives in Sydney. She is part of what is known as the Plymouth Brethren, and I haven’t seen her since I was six. She won’t associate with the family. It’s a Christian cult, I suppose.
Very fundamental?
Yes, a fundamental Christian cult. My older sister is 15 years older than I am, the next one is 13 years older I think - she lives in the Adelaide Hills here, and I see her regularly. I have a brother 11 years older than me, who was the greatest influence on me. He won a scholarship from Adelaide Uni and did a PhD in the UK and stayed. His name is Howard, and I see him every time I go to London.
Were you brought up here in Adelaide?
I was. The remainder of my siblings were born in London, because my parents moved to London. I was the only one born here. I have some step-siblings as well, but it’s probably a bit complicated to try to explain all that.
Where did you go to school?
I was originally at Edwardstown Primary, and I then went to Cumberland Park Primary.
When my father remarried Ann, they sold both their respective houses and bought in Millswood. I wanted to go to Unley High School where all my siblings had gone, but my stepmother asked me to go to Vermont Technical High School, where her eldest daughter was, and then subsequently the remainder of my step-siblings. I was really disappointed by that, but that’s where I went.
I cycled to school about three kilometres there and about three kilometres back every day. Ultimately it was a good school. It was a small school. It closed because it shrank below a viable population. It was a technical school, so unbelievably I did ask my stepmother – well, it seems unbelievable now - in about Year 10, whether I could become a metalworker. She said to me ‘don’t you want to do what your brother has done?’, in reference to Howard, who by that stage had his PhD and I agreed to that. So, I went on and did what was then Matriculation.
What made you decide to study law?
At about the same time I wrote to my brother and said ‘I would like to do exactly what you’ve done, and study’. He did majors in English and History, then went on with Victorian militarism as a subject for his PhD, and has remained a military historian. He wrote back to me from London and said that he wondered whether I could apply my interest in humanities to law. I think - 11 years older than me - he’d realised that although an academic-style existence is very interesting, it doesn’t necessarily pay the bills in quite the same way as a profession does. And the minute I read that, I became very, very excited, because I’d never even contemplated doing law, it just wasn’t something that people at my station, going to the school that I went to, were ever told about. We were not encouraged to do anything other than consider trades, or jobs as bank tellers, and so forth. It just seemed that at that point in time, we were encouraged to do other things.
So I became very excited, and then very motivated toward the end of Year 11, and during Matriculation, to work as hard as possible so that I could get the marks to do it.
You were a bit of a groundbreaker from Vermont?
Interestingly, there are others. There’s a guy called David Bevan who was the year above me, who is on the ABC every morning.
Matt and Dave?
Yes, Matt and Dave.
Another guy, Steven Halliday, became a senior advisor to the Labor Party. So there are others. An interesting school. Mind you, in my year was a murderer as well. So it was a mixed bunch, as it were.
What about uni days?
I didn’t enjoy uni all that much because, coming from a public school I discovered on walking in to the Adelaide Law School - the only law school then in South Australia - that it seemed to be dominated, or what seemed to proliferate, was a lot of pearls and a lot of pink and blue jumpers. I just wasn’t used to the private school scene, I suppose, so I didn’t quite fit into the group.
I found it quite tough academically. However, I never failed a subject, I never did a supplementary examination. I became more relaxed during the course of the degree, up to the point when I graduated and did the Graduate Diploma of Legal Practice. We started that in what used to be a nurses’ building out at Frome Road. They moved us, half way through, to Peel Street. I think it was when the Law Society was just taking over the course.
There were 99 of us who went in, and I got on really well with them, and realised that even though we’d come from different walks of life, they were all great and from that moment forth, I started really enjoying the company of my colleagues.
When I eventually walked into a law firm to do some work experience, I was excited. I think I spent the first 10 years of my career just being excited about the fact that I was a lawyer.
During Year 10 we were invited to do work experience when we were in secondary school. I applied, and was given some work experience at the Legal Services Commission for two weeks. I think the first week and a half I had to just do filing. Then for the last two days, a criminal lawyer took me to the Adelaide Magistrate’s Court and I found it exhilarating. I found it so exciting. It was actually the first time I’d been exposed to the law, but I did nothing like a clerkship during the degree and so forth. It was work experience and what might be described now as a ‘placement’ in the PLT course that led me into Barristers’ chambers and firms. I can’t remember the chambers, I think it might have been – no, it wasn’t Murray Chambers. I can’t actually remember the chambers I went to.
I did a stint of work experience at what is now Minter Ellison, in those days it was Baker McEwen, and they offered me a job. I’ve got a slightly embarrassing letter that I wrote back to them saying that I desperately wanted to be a criminal lawyer, so thanks but no thanks! Which is probably insane.
Anyway, I ultimately did my last lot of work experience at Tindall Gask & Co. I think I applied for the job at Tindall Gask beforehand and it seemed logical that I should go and do my work experience there. I just couldn’t believe I was in a firm. I was entranced by opening legal files, legal matters, entranced by everything to do with the law. When I walked in, everyone smoked. I used to smoke – not through enjoyment so much, as social obligation so I immediately, on getting the job, ran out and got myself an ashtray and set myself up in my office. I had to scratch myself – I couldn’t believe it.
That was in 1987?
Yes. ‘88 was when I started, ‘87 was the GDLP year. And ‘88 was when I actually started the job, in January ‘88. We were admitted I think in December 1987. It was around that period.
You are probably the only lawyer in Adelaide that is still at the firm that they started with!
Actually, interestingly, there’s a couple at Lynch Meyer that are still there, and Marcia Waters who started at our firm the same day that I did. But yes – it’s a rarity, even at my time of graduation. Interestingly enough, it’s a point of pride in our firm that a lot of people started here, and stayed here. At least, when they arrive, they don’t leave.
Some of my partners, in fact, started here. Tim White started here, Barney Gask started here – mind you, his father was Richard, a founder of the firm. Gary Allison turned up after having practised for a couple of years at Clelands and stayed. And many of the other people – Amber Sprague, with whom I work, started here, and Jane Miller. We pride ourselves in the culture of the firm – the fact that people hang around proves it. Though during my time, there have certainly been ups and downs, usually due to interpersonal relationships and so forth, and in work load. It’s not always been easy, but I’ve hung it out.
What sort of work were you doing in those early days?
The interesting thing about the firm was it was actually an insurance firm. When it was begun by Colin Tindall and Richard Gask, they both came from an insurance background, and so we did insurance. I came into the firm and it was an insurance firm. It was doing predominantly workers’ compensation and defence work, although there were other types of claims.
The great thing in those days was that you could act one day for a defendant insurer and the next day for a plaintiff claimant, so long as there wasn’t a conflict - so long as the entity or company, the person you were suing was not insured by one of your insurance clients - and that gave a great mix. What’s gone now is the fact if you act for the Workcover Corporation, for example, you are prevented from acting for plaintiffs. So plaintiff law has become blinkered, and defendant law has become blinkered. Whereas we grew up in an environment doing both.
Did you have a preference for either?
No, not really. This sounds callous, but I’ve always viewed the law as a business as well as a profession and ultimately when we became a plaintiff firm, it wasn’t driven through ideology, it was a business decision. When I entered the firm, I said that I wanted to do criminal law, and I was I guess making a concession or a compromise in coming to an insurance firm. That sounds very impolite or that I was self-important, but in fact out of the 99 of us who were in the GDLP, virtually everyone got a job. It was more on our terms than the employers, in those days.
Anyway, I said I wanted to do criminal law, and they said that Greg Howe, then a partner, would often mix it up down at the Magistrate’s Court doing guilty pleas for drink driving matters, and so forth, so that’s what I did. I then continued doing criminal law, and that ultimately led me to be able to act for a number of associations, including correctional officers and police and so forth. So I ultimately did plaintiff work for injured people. Injured coppers, injured correctional officers, and others. But I mixed it up with this criminal and industrial practice, and that is to this day what I do.
Are you still inspired by the law? Do you still have that enthusiasm that you did back in the eighties?
No. On a personal level, I find it quite tough to engage in day to day practice. Some of my colleagues just continue, but I’ve learnt in myself that I can get easily bored, and I’ve got to continue to occupy my mind or I’ll go mad. So ultimately I was able to turn my enthusiasm toward the firm, recognising that we are an important profession, but treating it like a business, and it’s grown a great deal, and grown organically and become a much bigger but very solid firm.
That said, my enthusiasm for and understanding of the importance of law in civil society has only grown. I am lucky enough to be able to publish from time to time, and I think it’s extremely important that we tell the community, and the body politic, just how important law is - that we underscore the importance of the separation of powers, the independence of the courts, and so forth. I’ve not for one moment lost my enthusiasm to preach the gospel about those aspects of the law.
You became Managing Partner at TGB in 2002, is that correct?
Yes. Too early, frankly. Brendan Connell was the then managing partner, and then pulled stumps in what I at the time thought was early. I was 36. I spent the first couple of years fluffing around, not really knowing what I was doing, to be frank. But it’s a learnt art.
We’ve got a curious situation in our firm, where we don’t have a set term or a cyclical appointment of managing partners. In fact, I am only the third managing partner in the 47 years of the firm. Russell Harms was the first. He started during the seventies, when Richard and Colin recognised that they needed someone with some financial nous and management nous. He was the managing partner for a long period of time. Then, as I mentioned, Brendan. Then I took over, and I remain managing partner, which is an unusual model, but it allows you to grow into the role.
I recognise that you can’t do it forever - but after Brendan left, I guess having a former managing partner around probably makes it harder, but once he left the partnership I could then essentially do more what I thought was good for the firm, and we’ve grown quite dramatically since then.
How many lawyers when you first came here to TGB?
I reckon it became smaller. I think some left. It would have been in the order of 10 or 11 lawyers. It was partner-heavy.
I started with three employed people. They were all in my year. Marcia Waters, who became a partner with me, though she’s since resigned from the partnership and works part-time in the firm. Carolyn Batt, who continues to practice, but she went to London for a long time, and was only with us for a couple of years, and me. And the rest were partners. I think there were six or seven partners. Ultimately a number of them left – Russell Harms went to the Bar, Greg Howe left, and we probably ultimately became slightly smaller than that.
We could have just stayed there, frankly, if we hadn’t thought about things. There’s a number of firms around town that I look at and think, well, they were us. I think I might have voted at this point in time, but I didn’t really understand the significance of our decisions. I regard myself as a bit of a later bloomer, so I learned eventually.
So what happened was that Ron Bentley separated from his wife, the late Angela Bentley, and had a large plaintiff practice in motor vehicle accident stuff. He actually joined the firm six months after I did, on the first of July, I think, 1988. At about the same time as the Workers’ Compensation Act was changed. The ‘71 Act was repealed in favour of the Workers’ Rehabilitation & Compensation Act 1986. That also created the WorkCover Corporation, and we had to choose – did we tender for the Corporation’s work, and be prevented from acting for plaintiffs, or did we just abandon our insurance roots and become plaintiff lawyers? With Bentley coming into the firm with so many plaintiff matters, we changed.
And that was the shake-up point, when some people left – Bas Sparreboome went on to be an insurance lawyer elsewhere. We actually lost some people, and it was a pivotal moment in the firm. However, Bentley became my mentor. I wasn’t actually practicing in the same areas of law, but I’ve said often that Bentley taught me everything that you should do and everything that you shouldn’t do in life. In any event, he was a big personality. He eventually was named, so it became Tindall Gask Bentley, and we began plotting a course in a different direction. As I said, Brendan Connell was then the managing partner, so that went for seven years, leading up to the point in time when I became the managing partner. We’d set a course by then.
What we ultimately did, though, was we said that there was a vulnerability to being only a plaintiff firm, and said that a long time ago - and this resonates with the latest CTP work that I did with the Law Society - we thought there would be a move to a no-fault scheme in CTP. We thought that would have an effect on our practice. And we weren’t thinking so much of workers’ compensation at the time. But essentially, we understood that tort law was always subject to legislative change. So we diversified. It’s an old-fashioned idea, I’m not sure that people necessarily in firms now adopt this, it’s more a question of choosing speciality again, if you’re a smaller firm, being more of a specialist firm.
But we firstly worked very hard on our family law area. In South Australia people are surprised to learn we’ve got about, at this point in time, 20-odd family lawyers, and they all practice exclusively in family law, bar a couple in the regions.
What sort of percentage would that be of your work here?
It is our second largest area after the plaintiff area. It was through design, and we worked very hard on that; and then we recognised that succession, or wills and estates, and estate planning was a rising area. I think there are some interesting demographic reasons why these things happen. People are obviously older, but we’re also more wealthy, so when it comes to family law, I analysed it and thought it was a rising area because people have got more to squabble about, but also people understood their legal rights better. With regard to estate planning and so forth, we’re an aging population, also a wealthier population, and so there’s something in disputation – inheritance disputes is something to argue about, but on the positive side, we can say it’s the minority of matters. People usually just want to plan properly for their estates.
We recognised those as rising areas, so we concentrated on that as well. And we continue with that philosophy, because we have taken both areas that we weren’t necessarily concentrating on and concentrated on them, as well as looking at other geographic areas where we could be represented. And so, more lately, I started acting for the Western Australian Police Union and the Northern Territory Police Association, and that’s led us to open successful offices in Perth and Darwin. So it’s much of the same philosophy.
I don’t think business is all that hard. I don’t have a great deal of sympathy for the lawyer who throws their hands in the air and says ‘woe is me, because there’s been some tort reform’, if they haven’t imagined that coming in the first place, and done something in anticipation of it.
And so at Tindall Gask Bentley – how many lawyers would they be employing now?
We have the pleasure of joining with Mason Westover Homburg, who are a Murray Bridge firm, on the first of July, and also we’ve got someone else starting, so I think that we would probably have in the vicinity of about 70 lawyers now, and about 120, 125 staff. I always look at that with some pride, because my view about being an equity partner in a firm like ours is that you are a custodian of something that will survive you, having been given it by the people who started it, and that a whole lot of your staff are employed as a result of the growth of the firm. That said, it’s all because of clients; all because clients walk through the door and entrust their legal matters to us. So it begins and ends, after our obligation to the administration of justice, it begins and ends with our clients. So the two most important things to me, after our obligation to the administration of justice, are our clients and our staff.
And of course, this beautiful building that you sit in every day, is another one of your legacies of your time as managing partner?
Well, actually, it was a personal project. The original building was a two storey one, and I owned a percentage of it, having stumbled into that as I’ve managed to stumble into most things in life. Then one day I wanted to do something else, and I realised the bank wouldn’t recognise the collateral of the building because there were four of us, I think, who owned it. So I went in to the other three and said ‘I think it’s worth this, would you like to buy me out?’ And then said ‘if you want to sell me your bit at that price I’ll buy you out’. A week later I came home to my wife a little shame-faced, and said ‘we’ve bought the building’. And we had a mini heart attack.
I ended up owning the whole of it, then we grew out of it. So I spoke to the then partners and said I would forgive the rent owed by the firm if the firm moved out, but pre-committed to move back in again. That was a plan conceived before the 2008 global financial crisis. It didn’t seem quite so shiny immediately after the collapse of Lehmann Brothers. I’ve still got the newspaper of that day in my records to remind me of how horrible things can get. Anyway, banks that were one day going to give Mel and I the money weren’t the next. So we knocked a couple of storeys off it, concentrated on making it work, and got it up. So it’s something that my wife and I own, and lease to the firm, and it’s one of the hardest things I’ve done in life, but also one of the most enjoyable. I never imagined I’d become a commercial developer but I had a willing tenant, and if you surround yourself by people who actually know what they’re doing, it’s possible.
Let’s move on to your work with the Law Society, because that’s filled up a lot of your time in recent years. According to our records, you joined in 1988, but it wasn’t until 2009 when you became a member of the Council. How did that come about?
I’m slightly embarrassed, because the Law Society was just there. You joined because in our firm everyone joined, and the firm paid your fee. To this day, for all of the lawyers that we talked about before, the firm pays every single one of their memberships. It was not an expectation, it was just one of those things.
Aside from attending the odd function and so forth, it was our professional association that I never really gave a great deal of thought to, until John Goldberg was the President, and the Society had started a lunch meeting of what we would describe as ‘large firm managing partners’. I add now being exposed to some of the national firms, that none of the firms in South Australia are large by eastern board comparison - but in any event, our large firms used to meet, and John as a member of a large firm, Cowell Clark, challenged us at the table one lunch, and said that we, as a bunch of managing partners, were the very people who ought to take an interest in the Council of the Law Society, and because I seem to have an incapacity to say no, or at least I get overly enthusiastic about just about everything, I said ‘that sounds great’.
I didn’t realise that Goldberg, of course, had run back to the then Executive Director and CFO and said he had a live one, as it were. The Society was very close to the firm so the next time I walked down Waymouth Street, Jan Martin, the then Executive Director, just happened to pop out and start circling me like a shark, and Stephen Hodder, who ultimately became the Executive Director then the Chief Executive Officer, did the same. And Goldberg also lined me up. So I had filled out a nomination form for Council, before I knew it. That’s how I stumbled in. Like most things in life – although I’ve got better at planning – not particularly planned, and I’m embarrassed by the fact that I didn’t give the Society more attention as a younger lawyer, because I now recognise its great value.
So were you surprised in those early days on the Council of some of the issues that were being handled by the Law Society?
Yes, it was a complete eye-opener. In fact, my advice to anyone in the profession is to understand better what the Law Society does. It has so many roles, regulatory and membership. I now understand it completely. I don’t think I was equipped to make some of the decisions we were asked to make, quite frankly, and new Council members should probably recognise that. But it was just everything.
It also made me understand the importance of an elected role, and the need to represent the Society's agreed policy and what you thought was the majority opinion, or at least take into account membership opinions. When I ultimately became President, my litmus test was what is our policy and ‘what would the majority of the profession think on this point?’ So I didn’t represent - and I don’t think you can in an elected position - represent my own view. I think you’ve got to go with agreed policy and what you think the majority of the profession would want you to say.
Before you became president, obviously you were treasurer then vice-president, and president-elect. During that time, were there some major issues you were involved with that stick out in your mind?
Yes. I got into the Treasurer’s position relatively early, and then there was an interesting situation – Jane Schammer, now a Judge at the District Court, was appointed a Magistrate and it left a gap, and there was a debate about who would take that. In any event John White, I think, was behind me. I was facing the prospect of this build at Light Square, and so I spoke to John and said, essentially, would you like to leapfrog? So he became President before I did, but was never Treasurer. I went in to each of the office holders – I was glad about that, because as you say, there are a number of significant issues that arose for the Society during that period of time, and had I missed one of those years as an office holder, I would have missed some of what was going on.
Also, I realised, ultimately stepping into the Presidency, that I had an enormous amount to learn, and it took every one of the days that I spent in each of those offices to properly understand the whole of the Society. There was the move from Waymouth Street to North Terrace that I was involved in. I remember one of the early meetings, James Jarvis from Finlaysons was vice-president, and we sat around in one of the rooms on Waymouth Street and spoke about some of the challenges facing the GDLP course, which ultimately led to my being involved with others in a discussion with the Adelaide Law School about a joint venture to deliver the GDLP between the Law School and the Society. And a number of other significant things. I was involved at a point in time when Jan Martin did not renew as Executive Director, and it was then necessary to appoint a new Executive Director. That title was ultimately changed to Chief Executive Officer, and I was intimately involved in that. I thought there were some significant structural architectural things that occurred, and it was quite an exciting time. There was a lot to do.
So then leading up to 2014, or October 2013 when you first took over as President, that was a very busy year for you?
It was. So the now Chief Executive Officer said to me that there was a view that the presidential term should be amended to start on the first of January and end on the 31st December, in order to accommodate the Law Council of Australia year, which is the same, and that someone, had to do October through to December - 15 months instead of 12 months - and would I do that. I said sure, no problem. It didn’t seem a big deal. Although I confess after having done it for 12 months, by the time I got to October 2014 the remaining three months felt like I was serving out a non-parole period.
It is a very intense job, and I was mentally and physically exhausted by that stage. But then again, the last three months was possibly the best, because Christmas was coming up, you know the role is expiring, and what I found probably the greatest part of the president’s job – meeting the profession - was in full swing. You’d got to know people by then. What I mean by that is there is an expectation that you will attend regional conferences, regional drinks and suburban drinks and so forth, and so just the ability to meet your colleagues within the profession, because it’s a very collegiate profession, was wonderful. Whereas when you’re tucked up in your firm you’ve got no opportunity to do that. I thought that it was the greatest thing of all. And people recognised you for the fact that you were President and it was a state election year, so we probably got more air play than usual. And I thought that part was fantastic.
The year ended in the centenary of the annual dinner, and we cheekily invited Geoffrey Robertson QC from Doughty Chambers in London, about a year before, in late 2013, and incredibly during 2014 he accepted. We did so using a scholarship because he was able to deliver an oration or a lecture at the Law School, and then he came along to the annual dinner and spoke. We did it at the Adelaide Town Hall. My memory of those dinners was that the best ones were at the Town Hall, so I asked whether it could be held there again, and we booked it out. All the people from the Law Council were in town for the Director's meeting – I wasn’t then on the executive, so they were all able to come along. I started to enjoy that part of the presidency.
That was quite a coup for the Law Society to get him there.
Yes, it was. My advice to any future President is if you want people to come to your annual dinner, get a superstar as a speaker.
In those social gatherings, where you were meeting with other lawyers around the city and in the rural areas, did they appreciate what the Law Society was doing for them? Were they aware of what the Law Society was doing for them?
Yes. I think the people who come along are, and I think the Law Society is there probably more for small and medium law businesses and sole practitioners than perhaps the bigger firms. The bigger firms can, to an extent, look after themselves.
But that said, I’m much in admiration of big firms who have high or complete Law Society membership – I’ve mentioned ours, but I single out Minter Ellison, for example, where all lawyers are members of the Law Society. I think the responsibility of big firms is to recognise that we need to empower the one professional association that has the ability to speak on behalf of the entirety of the profession.
I actually now regard it as an obligation to be a member of the professional association, and I think big firms have an obligation to recognise that. But that said, there is a huge advantage to the smaller end of town, if I can use that term without being disrespectful. And so a lot of the people I saw that I didn’t normally interact with, were sole practitioners and small partnerships, and I think that they really saw the value of the Law Society. It was the people who didn’t come along that I wondered about, and would like to convince.
Let’s go on to some of the big issues that you were dealing with during that 15 months. Obviously you were in the media quite a bit, because there were some big issues during that year. Mandatory sentencing was one - the opposition’s mandatory sentencing.
Yes. I compliment both the government and the opposition going into the 2014 election, because the temptation for either of them could have been to respond to a climate in Australia at the time, which still pervades to this day, though perhaps it’s not quite as aggravated, that there should be mandatory sentencing.
It was the era when people were very concerned about the ‘one punch’ situations and rightly so, but I am a vehement believer in the fact that investing the judiciary with discretion is the only equitable and fair way in which to sentence a person for a criminal offence, because mandatory sentencing takes away the capacity to take into account individual circumstances. It’s essentially a decision by parliament to involve itself in the sentencing process in every single matter of a particular ilk that comes before the courts, knowing nothing of the individual circumstances. There are some classic examples from the US, who interestingly are well into the process of undoing mandatory sentencing because it led to over-representation of people in prison, of terrible travesties with regard to mandatory sentencing. Anyway, both parties held the line.
I’ve got to say that since then the government has introduced a version of mandatory sentencing in that you can’t now suspend sentences in certain circumstances, which is a sort of sneaky way to make someone go to jail when a Judge might otherwise suspend a sentence. But we still have a relatively benign environment in South Australia, not so in some of the other states. That was a potentially big issue, but I admire both the current Attorney-General and the then-shadow Attorney-General and their respective parties, for not going there.
One of the big issues that you were dealing with during not only that year, but afterwards, was the compulsory third party reforms. Can you speak about why that was so important for the Law Society to take a stand, and perhaps some of the negotiations that you had with the government?
Yes, it was 2013 and I was President-Elect. What was proposed was a huge erosion of, until then, a common law right to sue in negligence for your injuries arising from a motor vehicle accident. Whereas we were quite open to tweaks and changes because law ought to be improved on, if people were perceived to be being over compensated at the bottom end of the scale, so to speak - I always had a view that they probably under-compensated the upper end of the scale with very serious injuries -we were perfectly open to speaking about the bottom end. However, what was embarked upon by the government was a wholesale alteration. The first iteration, a green paper, suggested a ‘no fault’ scheme. What in fact happened was the state of South Australia had signed an inter-governmental agreement with the federal government that in order to receive NDIS funding, it would introduce a ‘no fault’ scheme. But ultimately what happened was the ‘no fault’ scheme was introduced only in respect of catastrophic injuries, and the Society’s research showed that was about 10 – 15 such motor vehicle accidents per annum resulting in catastrophically injured people who, for example, have quadriplegia, paraplegia, brain damage, and so forth. So the most seriously injured. And the Lifetime Support Scheme was established.
The upside was that it was ‘no fault’, so that if it was your fault that the accident happened and you were injured, you were still able to go into the Lifetime Support Scheme. And even though I have a personal philosophical view that an individual ought to be in charge of their own life and the Lifetime Support Scheme essentially takes that away from a person who might otherwise be perfectly able to look after themselves if they’re mentally competent, the public argument was never to be won. So we simply embraced the Lifetime Support Scheme.
However, what the reform then did was to emasculate dramatically every entitlement to an injured person who wasn’t catastrophically injured. To this day, our government continues to talk about the Lifetime Support Scheme, and that might be now 100 people, some of whom are in it temporarily not permanently, but there’s probably six or seven thousand people per annum who have an injury that is not catastrophic, and it’s those tens of thousands of people who have lost out.
In what was probably a first for South Australia, the big firms got together through the Society. An executive committee was formed comprising members from the Society and also the South Australian Bar Association and the Australian Lawyers’ Alliance (SA), that is still a standing committee to this day. We very aggressively sought to educate the South Australian public as to what was going on, and we got to a point leading up to the election of being quite active in placing advertisements and billboard ads, letter drops and so forth. It was probably the first time that we engaged in a political way with a campaign that was run. The comforting thing for the Law Society was it was not a Law Society campaign, it was a campaign orchestrated by the compulsory third party – the CTP - Executive, and that was a joint venture between interested people within the Society, the Bar Association and the Australian Lawyers’ Alliance, so it’s always stood apart from those Associations in a way.
You were the chair of that CTP Executive?
I was. And it was funded in large part by the large firms. In fact we used little membership money. There was a small contribution but in any event the money was raised by larger firms and I chaired the committee. I can’t look back at it and say that it was a success to the extent that the reforms were unwound and Angela Bentley, now deceased, at the time said she was sure it was the precursor to the privatisation of the Motor Accident Commission, and she was 100 per cent right. So we didn’t necessarily see those events joined - the current Treasurer claims that they were independent events, but I don’t believe it for one moment. I think it was the precursor of the privatisation of the MAC that the Treasury had wanted to do for probably 20 years.
With the formation of this Executive, was the government surprised by the reaction? Or were they expecting a bit of a stoush?
Oh, I think they expected a stoush. Lois Boswell, who later became the Chief Executive Officer of the Lifetime Support Scheme and has moved on, I think, to be a chief executive officer of another public sector department, who was a former staffer to the Premier, was appointed the chief negotiator for the government. And I was appointed the chief negotiator for the profession, I suppose. They were interesting days. Lois and I met first over a glass of wine in a little bar in Waymouth Street. She was a wily and capable operator. However, we negotiated and there was no doubt that we avoided – what was originally on the table, a complete disaster, and what we ended up with what was a moderate disaster but we were able to successfully push back some of the more radical aspects of the reform. I’ll never know, I’m not that experienced, as to whether or not that was something that they were always prepared to give and that we were just a pawn in the game, but we negotiated as hard as we could. I took every point back to the CTP Executive. It was debated by experienced solicitors and barristers. It was pretty full on, and it went for weeks and weeks, in fact months and months, it was really intense.The then Presidents of SABA, Patrick O'Sullivan QC and Australian Lawyers' Alliance were both members. It was incidentally the beginning of an excellent relationship with Patrick O'Sullivan who I greatly admire.
I also felt an enormous responsibility because every claimant in the future was going to be affected by these reforms, lawyers would be affected, and it was a huge weight of responsibility, so I was trying to share it with the CTP Executive as much as possible, and agreed to nothing without taking it back to them. But there were some significant discussions, thresholds, where they should sit, the way in which the ISV would work and so forth – the ISV is the injury scales value. And all number of significant matters. Things like, we got an appeal to go to the District Court from decisions that you didn’t like within the Lifetime Support Scheme, rather than having it just administratively reviewed which is not necessarily the best way to go. We tried to introduce judicial intervention as much as possible. That’s just one of many, many topics we covered.
On a personal level, it was obviously an intense few months. What sort of hours were you working? You also had your responsibilities here at TGB?
Well, as to the Presidency, I resolved that an alcoholic drink didn’t pass my lips for the first 10 or 11 months. I just decided I couldn’t afford to be anything other than able to concentrate every moment of the day. I used to work in the day, get home, sit on the couch, work until about 11pm, go to bed, get up, quite often with a radio interview early in the morning, and do it over.
I was at the time looking down the barrel of renal failure because of an inherited condition, which was leading to being tired. I didn’t really recognise, at the time, that it was probably as significant as it was. Kidney failure was described by another person to me, who had it, as being like the frog in the water that starts to boil. It doesn’t really recognise what’s going on. But I recognise it now, because then on the weekend, I had to just sleep half of Saturday, just to get over the week to start it again. However, I was utterly committed. I thought that it was the greatest privilege I’d ever been given, and there was no way I wasn’t going to do it to the very best of my ability. I would have been mortified and embarrassed if people – ultimately about my presidency, said it was ‘okay’, or they were faint in their praise. I just could not tolerate the thought. I gave it everything I possibly could.
What about some of the other issues. Obviously you had your plate pretty full on CTP, but there were other issues that you were campaigning for during 2013 and 2014?
Yes. Going into each state election, the Society sits down and makes its list of what’s important to the profession and to justice. Certainly a big ticket item was, and remains so, is the parlous state of the state courts, in particular the old Supreme Court building. I spoke to one Judge about the Sir Samuel Way and he quite likes it. It’s a bit antiquated, but nothing like the old Supreme Court building. I thought we’d got there, actually, because there was a PPP – a public private partnership or the like proposed, where half a billion dollars would be spent. And I really thought we were going to get there, but things economic in this state took a turn for the worse, and we didn’t get it, and we still wait to this day. That was a big issue.
I always took the view, and I spoke vociferously about the plight of victims of crime and the fact I thought they were under-compensated in the Victims of Crimes Act. More particularly, and I can’t bring exact numbers to mind, but there was something like a couple of hundred million dollars in the Victims of Crime fund that’s raised through levies on people who commit criminal offences and road traffic offences, that wasn’t being spent on victims of crime. My view was its there to make the state balance book look good, but my view was that ought to be expended on compensating victims of crime. There have been some changes to the Victims of Crimes Act, but I was very vocal every time I could on that issue, and wrote about it.
The President of the day gets the opportunity to write in the Advertiser on a weekly basis. That was actually tough going for 15 months, coming up with a salient topic every week. My view about that was it needed to be relevant to that moment. So I know some Presidents try to think in advance what to do. I wrote mine every week based on a current event, or a matter that was immediately relevant, and I wrote them all myself bar one I think. I got a hand with one that was about, I think, copyright, and it was a humorous one around Christmas-time. But aside from that, I wrote every single one myself by hand and I now publish in InDaily and I write every single one of my articles. Through Points of Law, commenting on contemporary issues pertaining to justice and the law, they were often picked up by talkback radio stations, and a lot of what I found I was talking about I could set the agenda for by writing Points of Law, and it would be noticed.
Do you think that was important for the community as a whole, to understand what the profession is about and what they’re trying to achieve?
I received the greatest email just a few weeks ago from a teacher who teaches legal practice or whatever it’s called at secondary school level. Legal studies. A legal studies teacher contacted me and said please continue to write, or contribute, to InDaily because quite often I use your columns and give them to my class to read, and we debate them. It was just at a point where I was thinking ‘this is getting really exhausting’, and it was a great thing to hear. Because I am in total agreement – the importance of the law and those things I said before, the separation of powers, the independence of the judiciary, the capacity to keep Executive government in check, the balance that the Westminster system gives us between the three arms of government, and having the body politic properly understand that, and the role of the law, is vital in this day and age, more vital than ever before. In a day and age where we are potentially eroding or attempting to erode independence, and giving too much power to parliaments and the executive - unwittingly sometimes - on the basis that we need to be concerned about security. Rightly so, but those things need to be checked by the judicial arm of government. To have people understand that properly and truly is a very, very important thing.
Looking back on your time as President – what would you like to think was your legacy?
First of all I don't believe in legacies. But I had this view; I’ve acted for trade unions and associations throughout my career. The greatest compliment that was paid to me was by then-Treasurer Jack Snelling, now the Health Minister, who described me when speaking to Leon Byner I think on 5AA as the representative of the ‘Lawyers’ Union’! And that was my finest moment.
I took a view that we are not a union, obviously, because we have employers and employees, but we are a collective. I’m a huge believer in the collective, because the profession is a collective, and its voice is the Law Society. I thought that, and spoke to people about the fact the Society needs to be less retiring and more aggressive in promoting the interests of justice but also the legal profession. I don’t know whether that remains.
The other thing is – and you can’t be shy about this - if the Society is going to speak on behalf of the legal profession it needs to do so by engagement with the media in all its forms, alternate and mainstream. We just cannot not be in the media. Those who are media shy or retiring, ought not to consider being Presidents. You’ve got to get out there, and you’ve got to sell the message. It’s the twenty-first century way. It just must be done.
It goes with the territory?
Yes. And I hope that I was able to place the Society in a higher profile position so that subsequent Presidents are approached more by the media than what has happened in the past.
You are no longer on Council at the Law Society?
There is a convention that once you’ve finished holding office, you leave. The interesting thing is that in the Law Institute of Victoria I am told, they just recycle Presidents back onto Council. I think that’s actually an unhealthy thing. I don’t think someone should stay on Council forever, even if they don’t climb into the office-holdings. So I think we’ve got probably a structural question in our rules, where if you climb into the office-holding position, the convention is that once you’ve completed that, you leave Council. Whereas if you just remain an ordinary councillor you can stay there forever and ever and ever.
The other thing I wanted to do actually, during the Presidency, and I think I succeeded, is to make being on Council important enough that we’d have a contest every time. Because it upset me, when I learnt, that people need to be being cajoled to get onto Council. It happened because I think the profile of the Society rose enough that there is now a contest. And if there’s a contest for Council positions, it means that it’s valuable. It gives value to being on Council, so a contested election is a good thing. I think we were also able to achieve that. I think it ought to be sought after and it also throws up the best of our profession.
So now, I believe you’re now the president-elect of the Law Council of Australia?
Yes. Another accident – although I’ve got to thank Stephen Hodder, the current Chief Executive of the Law Society. There’s a bit of a tradition in the Law Council amongst constituent bodies. The constituent bodies are the Law Societies and Bar Associations and one other directorship, because it’s a company, which is Law Firms Australia, that used to be the large law firm group. They represent the largest nine firms in Australia and other big firms. There’s a bit of a tradition of the Chief Executive Officers trying to get their person up into the Executive of the Law Council. So they’re almost pseudo-campaign managers, I suppose, in a way. I don’t want it to sound that crass, but frankly the Law Council is a bit of legal politics. It just is.
I had no idea what I was going to at the first directors’ meeting, and remember sitting there thinking ‘what is this all about?’. The Law Council is an interesting beast, because it is created by its constituent bodies but restrained by them. It’s not a top-down organisation. In other words, it wasn’t formed and then said ‘let’s create some branches’. The existing constituent bodies, the Law Societies and Bar Associations, said it might be a good idea if we had a peak body sometime after federation, to deal with federal and international issues. And the significance of that is that they don’t permit what they perceive as the tail wagging the dog. You’re not entitled, in the Law Council, to come in over state issues and so forth, unless you’re invited. Equally, there was no single voice amongst the legal profession speaking to the federal Attorney-General and dealing with federal issues pertaining to the federal courts and the like, and because as a federation we’ve become more and more concentrated on the Commonwealth and the importance of the federal government has grown and grown, so I think has the relevance of the Law Council. The very same challenges that I described to you about the Law Society of South Australia faced the Law Council of Australia.
I’ll make a couple of remarks about that. The Law Society has a very good brand in South Australia. If you stop someone on the street and you say ‘what’s the Law Society of South Australia?’ you will get a similar response to if you say ‘what’s the AMA’, the doctors’ association. Everyone knows it. It’s a very known brand, it’s been around for over 130 years. But if you say what is the Law Council of Australia they’ll look at you blankly. And part of it is the architecture I described, but also part of it was we weren’t investing in our brand. I expressed that view early. I can’t claim credit for it, it was simply a view. But we’ve had successive Presidents, Stuart Clark last year, Fiona McLeod SC from Victoria Bar this year, dramatically lift the profile of the Law Council of Australia in media, and we’ve done so because of the efforts of public affairs and policy people back in the Secretariat of the Law Council, which is in Canberra.
Anyway, I conducted myself as a Director as I would conduct myself elsewhere, was sufficiently liked or sufficiently accepted, to run successfully for the Executive of the Law Council. The Executive comprises three ordinary members and three office-holders. I’ve referred to the previous electoral system for the Law Council Executive as corporate hunger games. You go in, a number of people have nominated, a number of people are going to lose, and you’ve got to vote in rounds, where one by one people get knocked out until the winners stand.
I actually had the primary hand in amending that system of voting. I complained about it, was given the job, and so I went to John Williams, now Pro Vice-Chancellor, former Dean of the Adelaide Law School, and a colleague of his in the politics department, the Dean there Clem McIntyre??, and we collectively drew up a new form of voting for the Law Council which is by a preferential ballot system, and it takes the agony out of the vote.
So I was going for an ordinary position. I kept on tying with a person who was already on the Executive, Chris Kendall from Western Australia who’d been a President there, and is now appointed to the AAT. Matt Keogh, who’s now a federal member in Western Australia, who was then-President of the West Australian Law Society, ran around the table to the directors, whispering in everyone’s ear ‘put the West Australian first and put me second’, and he said that to me – let’s just get Chris up, and you can come next. So I was slightly irritated because I could have been what’s described as the senior ordinary member straight up. Anyway, it’s just my competitive streak. I came in second. A guy called Ian Brown came in third, and then Chris was appointed to the AAT. Ian was appointed, and I was the last left standing, so I ran successfully for Treasurer the next year.
Right – so you’ll be President next year?
Yes. I have the same trepidation as with the Law Society. It’s a similar feeling, but for slightly different reasons. The sense I had becoming Law Society President is ‘what right do I have to occupy this great office?’ Am I up to it?
With regard to the Law Council, and I’m sure for every President going into it, it’s a similar feeling, but also aggravated by the fact that South Australia, I’ve recognised, is a very small jurisdiction by comparison to New South Wales, Victoria, to a lesser degree Queensland, although it’s a very large jurisdiction as well. And so it’s a challenge of being familiar enough with the requirements of some of those bigger constituent bodies from the eastern board, being in touch and in tune with what they will require. They all have different personalities. I’ve learnt that there are different cultures in every state and every legal profession in every state. Or legal professions, I should say in the eastern states, because they have the solicitor and the barrister professions, which adds another layer of interest. I think I could be better prepared for it, put it that way.
Do you think there is any one challenge facing the legal profession as a whole throughout Australia in years to come?
I couldn’t say one. I think there are many, but just to pick a couple – I think for the Bars, the challenge is that some of the larger firms are doing a lot of the work in-house and not briefing out. In our firm, and we’re not large by eastern board standards, we habitually brief out and I think there’s a huge advantage in doing that. That said, I’ve been counsel in my own jury trials and so forth, and it sounds contradictory, but I think that if you’re in a fused profession and you’re admitted as a solicitor and barrister, you ought to do as much advocacy as you possibly can, particularly as a younger lawyer. But that aside, I think that’s a huge challenge for the Bar.
As to the solicitor profession, if I can describe it like that, in other words ‘the firms’, I think the challenge is the changing nature and shape of professional services and I’ve published quite a bit about this. I’m the Chair of the Law Council’s Future of the Law Committee. It’s quite a difficult subject to get your head around, but the shifting sands of how professional services – not just within our profession and our industry - will be delivered, is significant. I see the twentieth century as having changed industrial production, and I see the twenty-first century as changing the way in which we will seek services, including professional services, and I think that’s an enormous challenge. There will be winners and there will be losers. The importance of the law will continue, but that’s what I think is a huge challenge.
But of course, the Law Council also has a constitutional requirement to uphold the rule of law, the administration of justice and so forth, and governments will get away with what they can, of either persuasion, and irrespective of who sits as the government in Canberra, the Law Council on behalf of that important third arm, the judiciary, and on behalf of the profession and in turn the people of Australia, have got to hold politicians to account.
Just finally wrapping up – in 2013, you won the Brian Withers award?
Yes.
What were your thoughts on that? How did you feel?
Incredulous. I still don’t really think I deserve it. I think it was probably ultimately in recognition of the CTP work, but of course that was an executive committee. It was incredibly time-consuming. It was really a year of – it was relentless. On the other hand, I was the President-Elect, that’s why I felt a bit uncomfortable about it. But anyway – it sits proudly in my office, and it’s not something that I will easily forget.
And just talking about all the hours that you’ve put in over the years, you’ve obviously got a very understanding wife, Melanie, and two young boys, Charlie and Hugo. Could you just explain the very unique gift that was given to you by your wife?
I mentioned the fact that I was suffering renal failure because I was diagnosed at 18 with polycystic kidney disease, which is an inherited condition that ultimately damages the kidney and your renal system. Probably about seven years ago now I was with my treating renal physician, and he said ‘five years from now you might need to think about having a transplant’. I remember walking home shell-shocked. I said to Mel that this is what I’ve been told. The prospects for someone suffering kidney disease if it gets to that stage, is that without transplant, you go onto dialysis. That ultimately leads to ever more debilitating circumstances and ultimately death.
So as soon as you’re on dialysis, you go on a transplant list. But the best you can hope for, usually, is a cadaver transfer, and they’re not quite as good. The live donor transplant is better, and the doctors say that if you do it before you go on dialysis, so a pre-emptive transplant, the results are better still. So my wife said ‘it’s okay, you can have mine!’ And I said thank you all the same! First of all, what are the chances of a match, and I don’t know that I could do that. And she tells me later that what she had in mind was that if she wasn’t compatible, she’d read about setting up chains of people where you donate to an unknown person and so forth. These things happen. So she was determined that it should happen. We were tested, ultimately, and amazingly enough, she was not just a match, but a good match in a blood type and genetic sense.
And so two years ago we both had an operation, and she gave me a kidney. It was the scariest moment of my life, because I was in denial I think. I remember a couple of weeks out speaking to one of the physicians at the Royal Adelaide Hospital and saying ‘do I really have to do this?’ He looked at me and said ‘you look like a person who’s suffering end stage renal failure’. I just hadn’t seen it myself. Since then I’ve got colour back in my face and so on, and I now feel the energy that I didn’t before, and realised that what he said was true.
Anyway, the scariest moment was when I had to stay overnight beforehand. I had a tube put into my aorta to give me drugs during and following the operation, which was really unpleasant. And I spent that night in the Royal Adelaide Hospital – I slept, amazingly enough, probably because for once, I wasn’t thinking about work. Anyway, my wife came the next morning and we saw each other briefly, then she went into surgery. About 9.00am I was sitting in my room and I realised she must be in surgery. And it was at that point in time that I thought to myself ‘I can’t turn back now’. It’s impossible! And about two o’clock that afternoon, one or two o’clock, I was wheeled in. It takes a long time – there’s one surgeon working on her, and one surgeon working on me. They’re incredibly skilled, as are the physicians. It takes five or six hours to get it out, and five or six hours to get it in again.
I was in recovery at about 8.00pm that night, wheeled back into the same ward where Mel was. I saw her briefly, I was pretty zonked, but I saw her briefly going back to my room. Then she was out – they get them on their feet. But my wife is one who just wants to get going. So I think she was out within the minimum time – a couple or three days, she was at home. She was bringing me food, coming in by taxi and giving me food, because with the greatest respect the RAH food is as bad as it always has been. I was out after five days. My partners graciously gave me eight weeks to recover, and I think I was coming back to work after six. It turned out to be, probably for Mel and I, one of the best moments in our lives. We sat on the couch together. She said beforehand that she thought that I was going to drive her mad, but we just sat there and laughed and cried and realised that life was going to go on. I’m a very lucky person. But also in admiration of the level of care that we received at the renal unit. I know there’s a lot said about our health system that isn’t complimentary, but there is a lot to be said about the fact that it’s outstanding as well.
I also want to say that there are huge family sacrifices to be made being an office holder in a representative association and I wish to acknowledge what it has cost my family without whose support these things are simply not possible.
Well on that note - such a lovely end to the story, thank you very much Morry!
My pleasure. I hope I didn’t go too long!