ORAL HISTORIES INTERVIEW
Honourable Chris Sumner AM
By Lindy McNamara on 29 April 2016
This is an interview with the Honourable Chris Sumner AM, by Lindy McNamara. The date is the 29th of April 2016. Chris, if we could start with your full name and date of birth.
Christopher John Sumner. 17 April 1943.
Where were you born?
I was born in Melbourne.
And your parents’ names?
Edward John Sumner and Margaret Helen Sumner, nee Bettess.
What did your parents do for a living?
My father was a bank official, a country bank manager eventually. My mother was initially a hairdresser and then home duties, and community activist.
So you moved around a bit during your childhood then?
A lot. We were in Melbourne during the war but we’re a South Australian family. I came back from Melbourne when I was about four and spent some time in Bute in the north, six months or so. Then Plympton, Marion Road, then Ways Road, Manningham, and then my father was posted as the Manager to Manoora, again up in the mid north, for one year. He then went to Lyndoch as the Manager during my high school years from 1956 to ’59 and then he was moved to Tanunda.
At the end of ’59 I came down to Adelaide to finish High School and Leaving Honours, and thereafter university and for all six years I was at Lincoln College, one of the university colleges.
Where did the interest in law stem from?
It was purely by chance. Funnily enough I didn't have any deep abiding interest in law. In fact, once I had moved to the Barossa Valley I got an interest in agriculture. I initially thought I might do a Roseworthy diploma in agriculture, which I actually think I got a scholarship for at one point, but that interest waned after a while, particularly after I came to Adelaide to do Leaving Honours. I wanted to go to university. I didn't really know what to do. I went to a vocational guidance officer and they said, “You could try economics or law or something like that”. I don't know whether I should be ashamed to admit it or not but I chose law because I was attracted by the idea of automatic supplementary examinations which they allowed in law school, and that’s what I fell into.
So it was really pure chance that I ended up in law, but on reflection it was a good decision for me because while I didn't enjoy so much the academic pursuit of law, I certainly found practice interesting and satisfying. And it is, or can be, a helping profession, so you’re in a position where you’re able to assist people who are in trouble.
Probably academically my biggest interest was in the arts side of things, and history and politics.
You did a double degree?
I did a double degree, that’s right. But that’s how I ended up in law; it was really chance, and in retrospect, probably good luck.
When you were at university, were there other people that would still be in the legal profession today that you became friendly with?
Yes, I suppose the main one who I was very close friends with is Peter Eriksen, who’s a barrister. He and I shared a room at Lincoln College in 1961 and started law together in 1961, and we’ve remained close friends. I was a direct contemporary of Michael Abbott and the late Jeff Hackett-Jones who died recently. Peter Eriksen would’ve been my closest friend at university, and then subsequently John Bannon came to the law school and I got to know him through student politics in about 1963/’64. We were very close friends of course for the whole of that period and we worked together in politics as well. Well, in student politics to start with.
How did the interest in politics evolve?
I’m not really sure. I didn't have an abiding interest in it at any particular time, but I can remember I was always interested in history and politics, apart from the digression into agriculture at one stage.
On the maternal side of the family, my mother’s father was Ernest William Bettess and he was a local potentate in Bute, the chairman of the Council and the power company up there. His politics were fairly conservative so I didn't end up where I did because of him, but perhaps he did spark my interest in politics. I have a recollection of one the late 1950s federal elections where Doc Evatt was giving his policy speech on the radio somehow and my grandfather was a bit deaf sitting there with his ear cupped to the speaker and, “Bloody communist, bloody communist”. So whether that put me on the track of politics or my interest in politics -
You did say your mother was a bit of a community activist –
Well not an activist, I used that word probably loosely; she was involved in community activities but not in a political sense, so CWA and the bowls club and the tennis club. Particularly when they were in Tanunda for another 14 years, she took on community activities.
As far as I was concerned the Labor side of the politics was more of an intellectual conversion at university in the early 1960s influenced by, at an individual level, personality level, people like Dunstan and Whitlam, and issues of race, equal opportunity, Aboriginal disadvantage and general educational opportunity, equality. And international development of course; I went to India the end of 1963 for three months and that was a pretty ‘in your face’ experience. The levels of poverty and difference between the wealthy and the poor were quite striking, and it had an influence on the way I thought about how economic relations in the world should be better organised to overcome the international development problems and the disparity of income and wealth and the production of a more equal, fairer society.
So that was, I guess, an intellectual conversion, but perhaps my grandfather sparked the initial interest in politics. It’s hard to say, but I definitely had an interest in politics, and an academic interest was more in politics and perhaps constitutional law and government law and that sort of thing. But I managed to get through the other law subjects but I didn't actually find the study of the law particularly interesting as legal study, but I did find the study of politics and history interesting and I actually did better at it than I did the law.
In those early days at uni, were you thinking more along the lines that one day you would go into politics or did you see yourself being a lawyer for your career?
No. By the mid ‘60s as I was getting closer to admission and I’d been involved in the Labor Party and the ALP club and student politics and the 1965 state election campaigns. I guess it was always in the back of my mind that I could go into politics, and then I ran in the Federal seat of Boothby in 1969, State election in 1973 which I didn't win - they were not really winnable seats - but put my toe in the water to keep the options open. If it hadn’t happened I would’ve gone on and continued in the law because once I got into the practice of the law in articles in 1966 I enjoyed the practice of the law.
Who were you articled to?
I was articled to Lawrie Stanley, LJ Stanley of Stanley & Partners. His partner was Brian, his son, who’s an Industrial Court Judge, and then Terry McRae joined the firm and it became, I think, Stanley McRae & Co. Terry became a Speaker of the House and a member of parliament, he got into parliament in 1970. And there was Brian St Leger Kelly who ended up as a District Court Judge and Master. So they were the five when I was first there.
I was a salaried partner once I got admitted, so on the letterhead, but just paid a salary which was the practice in those days.
And the type of work that you were undertaking?
It was an industrial labour firm. In fact it had quite a pedigree. It shut down quite a few years ago now, but the firm originally was Denny, Daly & Stanley. Daly was a Labor member of federal parliament and Bill Denny was a state Member of Parliament and Attorney General as well, and Laurie Stanley joined that firm. So this was the success of that firm. And of course Tim Stanley was Laurie’s grandson who’s now on the Supreme Court bench.
It was an industrial firm and worked for trade unions to a substantial extent. There was pure industrial law which Laurie involved himself in and Terry McRae took a prominent role in, and then there was the industrially related law workers compensation and personal injuries and that sort of thing, which Brian Stanley mainly did. That’s where I ended up doing most of my work, plus bits and pieces. In those days you did pretty well everything, so we had a probate practice and we had a UJS court debtors practice. It’s just what the article clerk ended up doing, and of course the article clerk could appear in the local court in those days.
How did you find that?
Pretty daunting I must say. I’m not sure people always got the best representation from the amateurs that some of us article clerks were, but at least they got some representation. It was certainly good experience. You were thrown into the deep end, perhaps a bit more than you should’ve been but that was the way things worked.
Back then obviously the profession was much smaller?
And you knew basically everyone in the profession?
We knew pretty well everyone, yes. There weren’t too many people that you didn't know.
Is there someone you would consider your mentor in the early days?
I’d have to say Laurie Stanley and Terry McRae. Outside that, later on I developed a lot of admiration for Elliott Johnston about his legal practice. We did have some stars around at the time; John Bray of course was very highly regarded for his intellect and general approach to I suppose small “l” liberal issues.
How long did you stay with the firm?
I did articles there and then I was a salaried partner. In 1970 I left and did the grand tour from Adelaide to London, overland as far as we could, with my partner at the time - girlfriend I suppose - Melanie Beresford and another lawyer who’s died now, Bill Latimer. We travelled as a trio up through Timor and Indonesia and Cambodia just after the coup that removed Prince Sihanouk and presaged the beginning of the Cambodian Civil War, and the Khmer Rouge and all that. You couldn’t go overland through Burma so we flew from Thailand to Calcutta with one night in Rangoon, and then from Calcutta, Northern India it was overland up and through the Khyber Pass to Afghanistan, Iran, and Turkey to London. Then I hired a car in London and did the grand tour around Europe and the UK and Ireland and then came back through the US, New York and down to Mexico, the Yucatan Peninsula and Guatemala and then home. That took me about 13-14 months.
Did that change your perception on a lot of things?
Not really, no, I don't think so. It was a fascinating time. The idea perhaps was to go and work in London, a lot of young lawyers did, and my good friend John Waters QC who was an Adelaide graduate and became a QC in Darwin, he was over there working for a law firm. But somehow or other I didn't get stuck into it in a firm, and I don't know why in retrospect. In some ways I wish I had done a couple of years work over there, it would’ve been very interesting. I do know at some point I was asked whether I was coming back by Stanley & Partners so I thought well I’ll go home.
So I didn't do the standard couple of years over there working in a law firm, but that would’ve been a good thing to have done I think. I came back and rejoined Stanley & Partners in 1971. At the end of 1972 the Whitlam government won the election. It was a time when people were saying it’s a good opportunity to look and see how politics works.
I’d won the pre-selection and stood for the Labor Party for the Boothby seat in the 1969 Federal election and then state seat of Torrens, in 1973. Mick Young, the ALP State Secretary, encouraged me to take a job with Senator Reg Bishop, the Minister for Veteran Affairs in the Whitlam Government in early 1973. I left Stanleys again for that 12 months, but that didn't really work out all that well. It was a good time to be in Canberra and very interesting, but I didn't have any real work to do because of the way that Reg Bishop conducted himself as a Minister, which I’m not critical of in any way, but as it turned out there wasn't really a job for someone of my qualifications.
Did that put you off federal politics?
No, not really. We had to travel fairly regularly. I finished with Reg Bishop at the end of December 1973 and went overseas. I only intended to go overseas for a short time, but that’s when I got caught up in Italy for eight months and studied Italian at the University for Foreigners in Perugia, which I’d only intended to do for a month or so.
Had you already studied Italian at school?
Not at school, but I’d studied at the WEA. After I came back from my big grand tour I studied Italian at the WEA.
What drew you to Italian?
Being very practical, we had a lot of Italian clients. One of our clients was the Italian Vice Consulate here, so we had a large number of Italian clients. The reason I really wanted to do it was because when I travelled in the first occasion I got fascinated with the notion of communicating with people in another language. I thought this is a very interesting concept, so I thought well I’ll study Italian. I didn't get very far at the WEA because it’s just too difficult. I’d heard about Perugia so I thought I’ll call into Perugia and signed up for one month, it was $10 for the month for the tuition fees. The dollar was very strong, accommodation was cheap and I ended up staying there eight months. I did the preparatory course and the intermediate course and two months of the final course, the superior course.
I came out speaking pretty well. When I got into parliament in 1975 Don Dunstan asked me if I would be involved with the liaison with the ethnic minority communities and that was I think because he knew I spoke Italian. I was able to speak in public meetings in Italian. In fact when the President of Italy came here in 1988, I gave the opening speech in Italian. I got reasonably confident, and it was a good experience.
And you liked the Italian lifestyle?
It was a good experience. I kept staying and I think I’d actually been preselected for the Legislative Council by then. At some point I think people thought it was time I came home. So I did come home towards the end of 1974. ‘72 was the election, ’73 was Reg Bishop, ’74 was Italy and at the end of 1974 I went back to Stanley & Partners. Then in July ’75 the early election was called by Don Dunstan over the railways issue, the sale of the state railways to the commonwealth which had been blocked in the upper house. I’d been preselected on that ticket and it was the first full franchise ticket for the Legislative Council. So again I left Stanleys, and got into the Legislative Council, but I did continue my association with them when I was a backbencher. I remained part of the firm, I used to go in once a week as you were able to do in those days –
So you were able to do that?
Do a bit of law in those days, yes. I continued to do that right through until I became Attorney-General.
How did you find life in politics initially? You’d gone from the security and safety of a law firm and now suddenly you’re in a totally different arena. How did that sit with you?
I’d been really knocking around in politics and Labor politics since mid 1960s and I’d run for two seats and I’d been a member of a sub-branch, I’d been a delegate to the state convention so it wasn't something I went into cold. In some ways, again like the serendipity of why did I do law, I was preselected number six on the Legislative Council ticket in 1975, and that was the first year of the full adult franchise and the proportional representation system where the Council was split into two - you had 11 elected one year and then another 11 elected three years later. It was six out of 11, so we had to get a reasonable vote to get six in. I only just scraped over the line as it turned out, because it was the early election that got mixed up in the 1975 kerfuffle over the Whitlam government. All the scandals came up and Dunstan had to make a big appeal that this was a state election and he shouldn’t be smeared by the Whitlam government.
We only won in the House Assembly with the independent in Port Pirie, Ted Connolly. He became the Speaker and he gave the majority to Dunstan to keep in government. But in the Legislative Council, this resulted as a bit of a quirk in the system - number six, me, I got in. It was a bit odd.
But no, I didn't find that transition difficult at all. If you’re a lawyer and you’re interested in public policy and administrative law and constitutions and governance generally it’s a pretty easy transition to make I think. I was given the job of being involved in ethnic affairs and that gave me a real focus, even though I was in the Upper House and didn't have an electorate. Dunstan resigned in early 1979 so then –
So you worked with him for a while?
I wasn't in his Cabinet no, but I was in parliament with him, yes. I was just thinking about this the other day that I then became leader of the government in the Upper House. I’d jumped from number six on the ticket who’d just got in, to the top and I think I got that without even having to face a ballot because it was obvious that I was going to get that job, I had the numbers to get it.
After that I don't think I faced a ballot ever to continue as Leader of the Labor Party in the Upper House, which was again I suppose luck or chance that things turned out that way. By then I’d had my four years as a backbencher at least in government, then became Leader of the government and Attorney-General in 1979.
Then we had an early election, another one in September 1979 and we lost, that’s when Tonkin came in and I went into opposition during the Tonkin period, but I was still a frontbencher, Leader of the Opposition.
How did you find being in opposition as opposed to being in government?
It was pretty traumatic to start with because I’d only had four and a half months from May until mid-September to be Attorney-General and of course all that was new.
So that was in ’79 when you were first appointed?
Yes. I had that period of four and a half months. Once you come into a new job like that you’re flat strapped dealing with issues, getting on top of things, so you work very, very hard. Then Des Corcoran called this early election which I wasn't very happy about at the time and said so, but he went ahead with it and we lost disastrously, ended up with only 10 seats. Then we had all the kerfuffle of getting John Bannon in as Leader of the Opposition. But we were quite a good opposition I think if I could say, a lively opposition.
Then there was the recession in late 1982 and we were lucky enough to get back in after one term in opposition which is quite unusual, and from then on I became Attorney-General and stayed Attorney-General from December ’82 through till December 1993.
The longest serving Attorney General?
Yes, that’s right.
I think you still hold that record?
I think that’s right.
So that was through till 1993 when Lynn Arnold became Premier and we had the election, that was the State Bank election and that was one that we got wiped out.
Through the ‘80s you were working alongside John Bannon?
Yes, for the most part as Premier.
Was that a good relationship?
You’d known each other in uni days?
Yes, yes. No we didn't fall out in any way, we remained good friends all through that time. We had some differences of opinion as you would expect on matters. But John was a very good Premier in running a cabinet, he was very consultative and involved people in the process. As a general rule he wasn't a sort of one man band or someone like that as perhaps some other Premiers or Prime Ministers have been. He was easy to work with. Perhaps in retrospect perhaps he was too easy to work with, I don't know.
In your role as Attorney-General, what are some of the highlights during that time, in your view?
I think the Splatt Royal Commission doesn't actually get the credit that it deserves generally because although it led to the pardoning of Splatt because of deficiencies in the forensic evidence, we were very fortunate to get Carl Shannon QC who’d been a District Court Judge in New South Wales. He did an excellent job even though, as with these things, he thought he’d only be here for three months but it took him 12 months to finish it, but he did an excellent job.
Actually it led to major reforms in this area, in particular separation of the collection and assessment of forensic science evidence between the police and independent scientists, and that led to the establishment of the Independent Forensic Science Centre. I know there’s been some problems since with the pathologist bloke Dr Manock, but the fact was that up until that time the police were quite heavily involved in the collection of forensic evidence, and in fact it was one of the problems in the Lindy Chamberlain case that a lot of that forensic evidence was collected and assessed by the police.
This was important not just for the individual concerned, obviously in court for Splatt, but it was important because it set the scene for a complete revolution in the way scientific evidence in criminal court cases was collected and assessed, so it was done by scientists. I did understand that in the von Einem case the forensic evidence stood up to connect von Einem with the Kelvin lad, and the defence weren’t able to question it or challenge it in any significant way. Maybe the changes led to the evidence being more scientifically credible and to stand up better in subsequent cases than might’ve happened previously. I know there’s been other issues since, but as a general principle this was the model that was then adopted around Australia. It’s the only sensible model; you can’t have police or people employed by the police being involved in the collection and assessment of evidence.
It was a legacy from your time.
Yes. Shannon did a good job and after that we put these structures in place. It’s a bit sort of, I don't know how to say, not high level sexy if you like, but it was in terms of public policy. But it was actually important and probably doesn't get the credit that it deserves.
Was there a lot of interest from the public at the time in the Royal Commission?
Yes, massive. The Legal Services Commission had commissioned a report that Frank Moran had done, I think, but Trevor Griffin was very reluctant to take on the Royal Commission or any independent enquiry when he was Attorney-General. We actually promised to do it before the 1982 election. Stewart Coburn from the Advertiser was running a very vigorous campaign about Splatt and his innocence. So we set up the Royal Commission and away it went.
Looking back do you think you were a very proactive Attorney-General?
I think so, yes. Yes, I think that’s right. We did quite a lot in a lot of areas, and that was one that I think was important. You mentioned there Johnston’s appointment.
You were talking about Elliott before being influential for you, and his appointment to the Supreme Court was obviously at the time quite controversial?
Well no, it wasn't actually, that's the point about it which I’d like to make.
The Dunstan government weren’t prepared to do it, and I think Dunstan was a bit spooked by what happened in 1969 over his recommendation to be appointed QC, and part of the argument then was, “This is not a judicial appointment as Queens Counsel and it’s a professional accolade and he’s not being appointed to the Bench”. I think that was one of the arguments Dunstan used at the time. He felt a bit spooked by it I think, so he wasn't going to appoint him to the Bench. I raised it with the Corcoran cabinet very informally and they weren’t prepared to do it. So when our turn came and the vacancy came up, I gave it another run with the Bannon cabinet.
Because you thought he was an obvious choice?
He had been the leader of the Bar for 10 years or so, de facto leader of the Bar if you like. If it hadn’t been for his political opinions he would’ve been appointed probably in the mid ‘70s sometime I would’ve thought on pure merit and competence. So anyhow, I was very gratified by the supporting cabinet, there was not any real opposition, most people were very enthusiastic which was great. One, I think, sort of demured but not much. So that was great. Having got their approval, I thought now comes the tricky part. I thought I’d start with the Law Society. I rang David Wicks QC who was the President of the Law Society and a reasonably conservative disposition I think he would admit, and most people would acknowledge. I said, “Dave, I just wanted as a matter of courtesy to tell you that we’re appointing Elliott Johnston to the Supreme Court Bench” and he said something like, “That’s fantastic, it should’ve happened years ago”.
Really, so that surprised you?
Yes, I’m cooking with gas here, I thought, and then gradually I raised it with a couple of other people. Roma Mitchell, I know she was very enthusiastic. Then when the appointment was announced - I can’t say I wasn't apprehensive about it - it turned out to be absolutely fantastic. It got universal accolades.
It was one of those wonderful coincidences where you do the right thing ethically, because he deserved appointment on merit grounds, but it was also a good thing to have done politically as well because it was greeted with pretty good universal acclamation, got in the Advertiser and that.
Quite extraordinary - from 1969, that’s only what are we talking here - by the time he got appointed - ‘85 I think it was or thereabouts, so in 15 years the change in attitude and the change of perceptions about Elliott. He had to think about it a bit because he was 65 and he couldn’t get a pension because he hadn’t time on the Bench.
Yes, he’d only had five years on the Bench then.
You needed seven, I think, to qualify for a pension. But anyhow, he did in the end obviously take it and did a good job. Then he went on and did the Royal Commission into Aboriginal Deaths in Custody subsequently, and did the final report on that, took over from Jim Muirhead QC who started it off. In the end that was a good thing to have done.
Any others you’d like to mention that you still are particularly pleased with the outcome of something you may have instigated as Attorney General?
I have to say I think we had a reasonably active policy agenda; there was substantial electoral reforms, complete rewriting of the Equal Opportunity Act and to bring in sexuality as a grounds for discrimination which hadn’t been in the original Sex Discrimination Act. We had a complete review of liquor licensing laws which actually set up the liberalisation of liquor licensing to allow for the cafe society which Don supported; outdoor dining and all that and he’s usually associated with those reforms; and he kicked it off with the Royal Commission after 1965 into the Liquor Licensing Act. We did this major reform again in the mid 1980s and tried to loosen up the system, and it was really those changes that allowed the kicking off of a much more flexible approach to cafe dining and all the rest of it.
It must warm your heart in March when you walk down Rundle Road and Rundle Street, seeing people dining everywhere and the festivals going on?
Yes that’s right. Of course there’s been more liberalisation since, but that one (1980s) I think was quite key in kicking along the general approach that Dunstan had established.
The other work where I think we probably did more than most other states, at least initially, was in the victims of crime area. I think it’s probably fair to say that we led Australia in that area of trying to enhance the rights of victims of crime in the criminal justice system both for information, and importantly in having victim impact statements which –
To give them a voice in court?
Yes. The effect of the criminal behaviour on a victim would be put formally before the court. At the time that was seen as reasonably radical, particularly by the defence lawyers. Indeed it didn't get universal acceptance even by the prosecutors I seem to remember at the time.
For what reason?
I don't know. I think they were just a bit worried about all these people in there whinging to them. Paul Rofe was the Crown Prosecutor. I can’t say he was opposed to it, but when you try and change things there’s always some –
“Why do we need to change it?”
Yes. If you look at the principle; there were no separate waiting rooms, the victims were there just as a witness. All the focus was on the offender and no doubt prosecutors thought well that’s my job and not to specifically look after the victim, but in fact now they embrace it wholeheartedly.
The current DPP Adam Kimber, he spoke recently where he praised the victim’s reform. They’re still subject to some controversy at the edge of this and they always will be, most public policy positions are. But anyhow, we did that, and I became involved in the World Society of Victimology. I went to the UN Congress in Milan in 1985 which established the declaration of the rights of victims of crime and abuse of power. I was the leading spokesperson on that for the Australian delegation.
So South Australia was the first one to implement rights to the victims?
Yes. That was in August or September 1985 I think. I came back in October and introduced the full package into parliament in late 1985, which had an administrative declaration of victims’ rights and made it clear that the effect on the victim was a factor that had to be taken into account. Even though that was always at common law the case, the issue was whether or not the judge had the sufficient information to take into account the effect of the crime on the victim at the time of sentencing. The victim impact statements were designed to make sure that the judge had all that information and could take them into account.
Just going back to that time, can you recall once that was implemented, some cases that followed where it was first introduced where they were given statements? I’m sure it would’ve brought coverage from the local media?
I can’t recall any specific cases, no.
But it was well received?
I think eventually it was well received, yes. There was some reluctance in the police as well. Often a lot of these things come back to resources you see, because if you’re going to have a victim impact statement it means the police have got to do more work. The victim’s declaration also had provision for more information to be provided about the case so that they had a right to be kept informed. That sounds lovely and it is lovely, but it all takes time and the police have to do more work and the prosecutors have to do more work.
There was objection from the defence Bar, the defence profession, but probably not all that great anyhow I don't think. The objections within government revolved around the extra resources that might be needed and this was something new and why is it necessary.
It looks like you’d think it wasn't a very difficult thing to do, that surely it’s a no-brainer that victims should be given a better say in the criminal justice system, but the fact is that up until that point they weren’t and there was resistance in some quarters to some of the things that we tried to do.
But anyhow, we did it and I think that was one of the major things that I was involved in. Sometimes I think people in politics overstate what they do, because I think a lot of public policy gets done because the time for that particular public policy has come so it often doesn't matter that much.
It’s just an evolution of time?
It’s an evolutionary thing and it sometimes doesn't matter which party happens to be in government at the particular time that this issue comes up, that they all take credit for it.
To be fair in this area, the Liberal Party was very supportive of it all.
The other thing about that, there’s still a bit of an issue because I was on the radio the other day about it is we imposed a victims of crime levy and that was the first time that that has happened in Australia. It’s still the only place in Australia that has a victims of crime levy which has established a dedicated fund to provide compensation to victims. Connected to the victims policy was also the comprehensive crime prevention policy which we put to the 1989 election. It was a community crime prevention policy which said you can’t just rely on imprisonment and higher sentences to deal with crime, you’ve got to look at social issues and look at also situational crime prevention, how can you make houses and streets safer and this sort of thing.
So that was a major policy, again linked to victims of crime in ’89. The Liberal Party’s Trevor Griffin was very supportive, as I’ve said, of the victims’ policies. He was also very supportive of the crime prevention policy and after 1993 they continued it. It wasn't until Michael Atkinson became Attorney-General in 2002, it was largely scrapped.
What sort of changes was seen in the community as a result of that policy, making things safer?
An example I suppose is that local governments were funded to develop crime prevention policies. They go out and assess an area and say, “You’d be better off with a light here”. There was, I think, a proposal for better locks to be provided for elderly people. There was information about the fear of crime. Often it’s thought elderly people are more likely to be victims of crime than other people; that’s not true and most victims of crime are young males between the age of 18 and 25. If you’re elderly, you’re very unlikely in fact to be involved in criminal behaviour as a victim.
Probably it’s more likely to be in the media because of it.
Yes, but the perception is it’s the other way around. So information to people; and there were funds made through a crime prevention fund that went out to local government to deal with those, and sometimes to deal with social issues. I can’t recall any of them at the moment, but some of the Aboriginal issues with youth were part of that crime prevention program as well, because as we know the Aboriginal people are more highly represented in the criminal justice system and the jail system than other people.
During your time as Attorney, were the jails almost at capacity at that time, because obviously there’s an issue now?
No, the imprisonment rate was much lower then than what it is now. The policies have changed, and they really changed with the Labor government in 2002, law and order campaigns, they weren’t really interested in community crime prevention.
I’m not saying community crime prevention is an answer to everything, but just putting people in jail is not the answer either. You’ve got to have a balance, and that’s what we tried to do. I think that was quite innovative at the time. In fact it was taken up by the Commonwealth government; they had a community safety program, and they still have I think a community safety fund or funds; all those things I’ve been talking about that looks at particularly vulnerable groups in the community and provides funding for voluntary agencies to try and assist them.
The policy around that really changed as I said from the election of the Rann government, and with Michael Atkinson as Attorney General, he didn't have any interest in this stuff at all. He was interested in the victims so he continued that, but the crime prevention stuff, I don't think he was interested in so they really severely cut the funding for that. Funnily enough, I think Kevin Foley (Treasurer) later regretted that.
Was it frustrating for you after leaving the role to perhaps see the good work you’d done be undone in some situations?
In some areas it was, yes. I think that was an area that I was disappointed in, yes.
One of the things we tried to do in the late ’80s, and Frank Blevins was Deputy Premier and Minister of the Correctional Services at one stage, was try to get our prison systems to accord with the UN guidelines on prison numbers. I think we actually met those guidelines in the late 1980s, but you wouldn't meet them now. I don't think anyone cares about them now either.
You can look also at the whole tenor of the Mitchell Report which was a report done in the 1970s at the behest of Attorney-General King, and that recommended a whole lot of changes to criminal law. A lot of them were changes that these days would be just totally unacceptable. They were more pro-offender, more about rehabilitation, more about rights of offenders, those sorts of things.
We assessed those when I came - that’s another thing we did, Matthew Goode who’s a criminal law lecturer from the Law School came and worked in the Attorney-General’s Department and he did an assessment of all those. Some of those were implemented and some of them didn't. One that we did was a complete rewrite of the Sentencing Act which we did in about 1988. We codified the criteria that would be taken into account in sentencing an offender so people could look and know what things you took into account when you were sentencing someone to jail. One of the criteria was that imprisonment should be a sentence of last resort and that’s still in the Act. I think it’s largely got ignored.
Do you think it’s overlooked?
Yes, because the community ambience around these things has changed quite dramatically. In fact really there was a notion that we should be trying to rehabilitate offenders. Things that started in the 19th century with how they believed people reform and the Benthamites and the enlightenment all the rest of it which continued right through until the years 2000 but people in power these days aren't the slightest bit interested in it. The community attitude to these things has changed. We were still in that zone, if you like, where we were looking at criminal behaviour in terms of what can you do to stop it and what can you do not just by imprisonment but by rehabilitation and proper prison conditions and all the rest of it.
Have the communities become a bit desensitized to the whole process?
I think the community attitudes have changed. I don't think you’d get anyone actually now getting up and making the argument for the alternative policies, even though if you need a new prison it’ll cost you $150m, and that’s $150m you haven't got for a school or a hospital or whatever. Whether that’s necessary in order to achieve your community safety objectives is the issue, and I’m not sure that it is, just in terms of the pure vengeance and the public wanting their eye for an eye approach et cetera. So that was another area, victims and the crime prevention, the Mitchell Report.
I guess one of the things that I did, which was important to me anyhow, was in the Crown Solicitors Office itself within the Attorney-Generals Department. I recommended the appointment of Cathy Branson as Crown Solicitor and head of the Attorney-General’s Department after Graham Prior was made a Judge of the Supreme Court in 1985. He had been the Crown Solicitor for a number of years. Cathy was the first woman appointed as a CEO of a government department in South Australia. That wasn't an easy decision because there was a very competent Deputy Crown Solicitor Jim Cramond who later went on to be Chief Magistrate, but he expected I think to become Crown Solicitor. I made this decision, sort of rash decision you do in youth, and thought on merit Cathy Branson was probably a better person for the job, and she was a couple of rungs below the top at the time she was appointed.
How was that received?
I think it was received okay in the Crown Solicitors Office generally, but obviously Jim understandably wasn't that happy. He then went back to the Magistracy and became Chief Magistrate, so he had a good career and Cathy went on to be a Federal Court Judge and Chair of the Human Rights Commission so she had a good career as well. I think that was an adventurous decision; I think it was the right decision. She was really a very, very good lawyer but also a very good administrator and I think we got a Crowns Solicitors Office together that was a pretty good office.
How big was the team back then? It’s quite large now.
Yes, I can’t remember exactly. She was able to encourage John Doyle to come in as Solicitor General, so we had a pretty good team. We had Brad Selway who was one of the best constitutional academic and practical lawyers around, he’d been in the Crown all his life. The other thing I did, which subsequently got dismantled, was I linked the Crown Solicitors Office and DPP salaries to external judicial positions. The Solicitor General was a Supreme Court and the DPP was a District Court Judge, and the Assistant Crowns were Magistrates so whenever the judicial jobs went up, they got all their increase in salary as well. The idea was we can make sure we get good people into the Crown, and I think it worked. After I left it all got dismantled because it was obviously something that’s completely anathema to a public service board and normal industrial relations processes.
I think we did manage to put together a pretty good office and Cathy ran a good show. John was obviously an excellent Solicitor General. Brad was a star and became Solicitor General afterwards. We ran some major constitutional cases before the High Court on the Section 92 case, the Cole v Whitfield case in 1988 in which we interpreted Section 92 which was very important, took it away from the emphasis as a general free enterprise protection and interpreted it more as an anti-protectionist, free trade measure, not a section that supported free enterprise. That was a major reinterpretation of Section 92, and John led the case on that with Brad.
We also played a major role in trying to get Section 90 reinterpreted, that’s the excise power which gives the commonwealth government exclusive power over excise, and the High Court interpretation has always been very broad which has meant that states have not been able to impose sales taxes or GST type taxes.
If the interpretation was narrower by the High Court, which is what we argued the founding fathers really had in mind, then the states would be able to impose a GST type sales tax. We played a major role in putting that case together. In the end we lost after a number of preliminary cases. The final case we lost, the states lost four/three in the High Court, but had that case been won then states would have the capacity to impose GST type taxes, and that’s one of the big problems with the federation at the moment. The States also lost even the semblance of these franchise taxes that we imposed, or franchise fees in the final decision of the High Court on Section 90. I think that occurred in the late ‘90s when of course John Howard ran with his GST proposal to give all the GST to the states anyhow. That was the way the commonwealth dealt with the fact that the states couldn’t at any stage impose a sales tax.
That was all pretty important, and we only lost by one vote on the High Court, but Brad and John worked very closely on all that. We were trying to get John Doyle’s name up there as a possibility for the High Court. I can go into that if you like.
He had a very illustrious career once he went to the Supreme Court here.
Yes he did. I do remember on the Section 90 case that I got a call from Lynn Arnold who was the Premier and he’d been rung by Jeff Kennett in Victoria and said, “You’ve got to drop off this case because we’re going to lose all our capacity to tax anything”. Lynn accepted and I said, “Look, the capacity of the states to impose decent taxes at the moment is pretty non-existent. We’ve got to do all these artificial franchise fees and what have you for cigarettes and petrol and all the rest”, and I said, “Let’s give it a go and see what happens. If we win it’ll be a big win. If we lose we’re not going to be a lot worse off”.
So there was pressure on you.
Yes. Had we won it would’ve been labelled a major reorientation of state federal relations and would’ve given the states greater capacity to raise their own funds. That’s one of the major complaints about the federation which we’ve seen in recent times where federal government raises all the money and the states spend all the money. So that was important, and Brad did a lot of the legwork on it because it was his area of expertise, and John did a great job in court.
Were there any other cases of policies that were unsuccessful during your time that you really had hoped would go ahead?
I suppose I had some losses on the way through. I can’t remember what they were now.
Towards the end of your time in politics the State Bank collapse Royal Commission had taken place? Do you want to give any comments about that?
I could go on with that for quite a while I suppose. Obviously it was a big down point in the history of the Bannon government as well as the history of the state for that matter. I wasn't personally involved and didn't know about it until very much towards the end, but yes obviously it was a major disaster which has thrown a bit of a shroud over a lot of the other things –
The Bannon government, yes. It’s virtually impossible to deal with it in a short interview. It was obviously quite traumatic for John Bannon himself, but he soldiered on, took the responsibility for it and then went on and had a post political career that was, as we’ve seen recently with his death last year, a very illustrious post political career.
The reasons for how it ended up that way are multifarious. Anyone who tries to say, “It was all Bannon’s fault”, it’s just off the mark. That’s where I take issue with Jacobs Royal Commission Report because I think that was unfair at a personal level to John Bannon. He mustered the most pejorative language that he could get together to prepare his report, and I don't think he took enough account of the evidence that was subsequently put before the Auditor General’s Report, the Ken MacPherson Report, when he made his findings.
Those findings at the political level were made by Jacobs without the benefit of the Auditor General’s Report. And yes, I think they were unfair. I think they were over the top and I think in the end they didn't actually accord with the evidence. To try and say, “It was all Bannon’s fault” is just wrong. He had to take the political responsibility, he had to take a substantial amount of the responsibility for it, but checks and balances all the way through have failed. It was rather unfortunate because the Royal Commission was set up so that the Auditor General would do his enquiry and he would report to the Royal Commissioner, and the Royal Commissioner would do his final report taking into account what MacPherson had found as the Auditor General. The Auditor General enquiry got bogged down so Jacobs went on with our approval to do the high level stuff if you like and produce a report without the benefit of that, of all the ins and outs of what happened in the bowels of the bank that the Auditor General was investigating.
So that didn't work out and that was partly the way it was constructed and then the bad luck of the fact that the Auditor General didn't get his report out quickly enough because we couldn’t have Jacobs hanging around for two or three years before he did his report, that wasn't the way it was supposed to work. In retrospect it probably should’ve been structured in a different way. There probably shouldn’t have been one Royal Commissioner, there should’ve been a panel and someone who had a little bit of experience of the rough and tumble of the commercial world and the political world for that matter. But anyhow, that wasn't to be. So the Jacobs Report came out, or the first one at least was before the Auditor General’s report.
When you look at it all in perspective, you look at Ken MacPherson who was quite scathing, as he should’ve been, about the bank board and the managing director and the auditors and just about everyone else. If you look at his report with the final report of John Mansfield, then it gives a much more balanced view of things, which I think actually impliedly contradicts what Jacobs found, or his more extreme findings, at least, about the role of Bannon. Which is not to say that John Bannon didn't have a role in it because he did have to take responsibility as well. But I thought Jacob’s overall findings were unfair and didn't accord with the evidence.
The whole thing cost $35m, the enquiry, and a lot of it was taxpayers paying the managing director and board to try and get off the hook, and others as well, which in one sense is a bit obscene because they all ran for cover. Instead of fronting up and taking their responsibility, no it wasn't any of their responsibility. MacPherson certainly destroyed their case and found that they were, and that the processes and the board and the director and managing director were just dreadful.
Ironically, when we were setting it up, the bloke from JP Morgan who came over and assessed the bank just before its collapse problems were announced, and I had a discussion. I said, “When I have a Royal Commission what do you think?” and he said, “Well it’s not a good idea really to have a Royal Commission while you’ve got an operating bank” and I said, “Well you’ve got to have it” and he said, “Oh well fair enough, but it won’t find anything, it’ll just find that this bank went down the old fashioned way”, which after $35m and all the toing and froing was exactly what it did find - that they overcommitted themselves in loans that weren’t properly secured. So JP Morgan had done his enquiry and given me the result in one sentence.
But the community pressure was that there had to be an investigation.
There had to be an investigation, I’m not arguing about that. I’m just saying in retrospect the Royal Commission didn't really find out a lot more than what JP Morgan had assessed at the time. I know that checks and balances failed. One of the odd little things about it too was that looking around for the Royal Commission I approached Maurice O'Laughlin who was a Judge of the Federal Court at the time before Jacobs and I said, “Could you do this?” He said, “I’d like to but I was on the committee that appointed Tim Marcus Clark”, because he was part of the amalgamation committee. So The Royal Commission probably should’ve been set up a bit differently, it got out of kilter.
In the end it was a terrible time for John Bannon in particular, I’m talking about personally, and the government and the state of course obviously. One thing I suppose that still annoys me a little bit is you still get that, “State Bank nearly bankrupted the state”, well that’s actually not true. You heard it when John Bannon died at his funeral and all the publicity around it. One of the really ironical things is that at the time we came to government in ‘82/’83, the state debt was 23.5 percent of gross state product. By ‘89’/90 before the collapse it got down to 15.4 percent, so despite all that careful husbanding during the decade the collapse put it back up to 23 percent. But the debt was no worse at the end of the period than it was when we came in. And of course it was much less than it was under the old Playford time, but of course that’s no excuse for the losses because the argument about debt is you use it to invest in infrastructure, increase productivity et cetera. But it’s just overstated in saying it nearly bankrupted the state.
The other thing is that the gross figure of $3.2b ignores the fact that the Government set up a bad bank/good bank process and the bad bank recovered $1.2b anyhow I think. Plus the good bank before it was sold off was profitable, it was making $80m a year on housing loans anyhow. But that sort of perspective you can only do really historically, you can’t do it in the heat of the moment.
So your political career went through to ’94?
Your resignation from politics, what prompted that?
I went back after the ‘93 election into the Legislative Council as Leader of the Opposition and I stayed there for eight months. I was 51. I had to make a decision whether I was going to stay in parliament and I probably could’ve, although I’d been there 20 years so there was a bit of pressure to move on. At a personal level I probably could’ve done just the policy and parliamentary work but the relentlessness of the public side of things and the functions, I thought I really don't want to keep doing this. I’d been the Minister of Ethnic Affairs for a long time and the pressure on your private time in that area is quite relentless. Enjoyable, one of the best things I did, I have to say that, in the 1980s.
But by the time it got to ‘93/’94, I thought if I stay another few years in the job, what other opportunities are likely to come up? So I thought well no, it’s time to bite the bullet, so that’s the reason - I’ve had 20 years. I was able to get the job on the National Native Title Tribunal as a member which I took in May ’95, so after about six months, or October I think it was I resigned from parliament, October ’94. So I then had 17 years on the Native Title Tribunal which was again a fantastic experience.
Despite the work you were doing?
It was set up after the Mabo case by national legislation, so it was a national tribunal that had registries in most states of the country. It was designed to provide information, it was designed to register claims for native title which was the registrar’s function, it was designed to mediate claims so when claims were put in, it was designed to try and avoid litigation over all these claims because there was large numbers of them, it was all over the country. Well, not at that point it wasn't because pastoral leases hadn’t been included, but anyhow it was to mediate native title claims and to conduct arbitrations about whether mining and other developments should go ahead, so-called future acts, acts done in the future, grants of mining leases and compulsory acquisitions for certain purposes.
So it was mediation about claims, mediation about developments, and then if the mediation about developments failed and agreements were not reached then there was an arbitral process which you could have single members or you could have a panel with three. My work was a mix of all that.
That would have been interesting.
Yes it was and I hadn’t anticipated that when I first got the job. I knew what I was going into but I didn't know exactly what I would be doing. Justice French, now Chief Justice, was President of the Tribunal and the future act work was just getting going, particularly in Western Australia. He asked me whether I would be responsible for that work, so that’s what I did right from the word go. I was responsible for putting in place all the procedures and hearing some of the initial cases about whether a grant of a mining tenement should proceed over native title land where there was an application made for a mining lease, mediation failed, then the mining company could come to the tribunal for a determination as to whether the mining lease should be granted, not granted or whether conditions should be imposed et cetera.
And even though it was in the tribunal setting I’m gathering it was quite tense negotiations?
It could be, yes, goodness. Some of the meetings were really lively, yes, and that’s putting it mildly. But in the arbitral side, well you are acting as an administrative tribunal so sort of a quasi court. I tried consciously not to make it as formal as a court process, but for the big cases, particularly the big early cases, we’d have rafts of lawyers and QCs.
Were you based here at Adelaide?
Yes. I was based in Adelaide because it was a national tribunal and most of my mediation or claim work was in Adelaide. The future act work and the mining work was in Western Australia so I spent about 50 percent of my time in Perth. I used to go to Perth a couple of weeks a month, particularly while all this was being set up. It was also a process for the grant of exploration licences or so-called expedited process that we had to make decisions about as well, plus the whole administrative structure to put it all in place. Then some initial test cases set out what the law was in these areas and we just followed. Some of them went up to the Federal Court for correction and that was fine because we were operating in a completely new environment. In a sense I was very fortunate because this was a completely new area of law and we were on the ground floor, and I am particularly at the ground floor in this future act area. As I say, initial test cases, and it took me all round the country.
Out into the country?
Yes, we had hearings out in the country. Some of them in country golf clubs and community halls. One of them I remember we had on the main street at Jigalong under a tree.
You would have got to learn a lot more about the Aboriginal culture?
It was a privilege in two senses, of being able to involved at that level with the law that was just starting off and being involved in the creation of it et cetera; but also it was a great privilege to go and travel the country and meet so many people that are Aboriginal claimants from all over the country. Getting to know them, getting to know the culture and also their extraordinary personalities and generosity; it was amazing.
I guess you weren’t having to use your Italian skills?
No, no. I kept up the Italian, I can still speak Italian.
You retired from that position as Deputy President in 2012, is that right?
Yes. I was appointed in 1995 by the Keating government and that was for five years. Then five years later I was actually appointed Deputy President by the Howard government along with Fred Chaney who you might remember, he was appointed at the same time as me. We were both members and then we were both appointed Deputy Presidents after five years, and I kept the Deputy President spot until I retired. The reason that I think I got the gig of the Deputy President because I’d been doing this future act work.
You were saying before that you were still doing mediations?
A very small amount. The Federal Court asked me to finish off a mediation as a private mediator in one of the claims that I’ve been involved in in South Australia – the Far West Coast claim. That was the first claim, and others there that are pretty small, pretty minor. Yes, I’ve kept my finger in the pie a little bit.
As I say, I was very privileged, it was a tremendous experience. It was a great experience meeting a lot of different people from all over the country, Aboriginal people, getting to know all the South Australian Aboriginal people from pretty well every corner of the state. One of the things which probably hasn’t been documented enough, it probably never will be, which was an extraordinary experience and came about because one of the things that wasn't anticipated by the Native Title Act, was the level of intra-indigenous disputation and overlapping claims.
In South Australia there was a big spaghetti bowl of overlapping claims up in the centre - from the west coast, Coober Pedy, down to Port Augusta - and before you can actually proceed with a claim, to mediate a claim you’ve got to solve the overlapping claims, otherwise you can’t proceed.
You’ve got to unravel that before you can get to it.
Yes. If you go to mediate a settlement it’s got to be done that way. This was a major problem that the SANTS, South Australian Native Title Service who were the native title representative body, so they’re the body that represent native title claimants. Parry Agius, who was the CEO, came to us with a proposal to have a massive mega mediation and he was going to, and he did, get involved with senior people from the Pitjantjatjara lands, from Oak Valley, Maralinga Lands, from Tjuntjujara which is across from the Western Australian border, and some others around, and bring the six or seven, might’ve been more, groups together in one big community meeting to try and resolve the overlaps and use the influence and knowledge of the law, of the senior people to assist in that process.
There would’ve been language barriers between the different groups as well?
Not really. For most of them the language would’ve been Pitjantjatjara (Western Dessert), or people could understand Pitjantjatjara and that’s closely related to it. So we weren’t dealing with two Aboriginal languages, we weren’t dealing with the Adnyamathanha language which is different - a Lakes language - because most of them spoke English. There was an interpreter there for the Pitjantjatjara so we weren’t really involved with different Aboriginal languages. But it was all confidential of course. It was a mediation. We all convened at a place called Spear Creek outside Port Augusta which is a caravan park. It’s got some cabins and the proprietor was happy to have this group. At various stages we would’ve had 250 people there, some of them camped there.
How long did that process take?
It took seven days. SANTS were involved, and because we had the statutory responsibility to mediate we had to run it in conjunction with SANTS, so we set up a steering committee. We put four members on it, we had anthropologists, we had our geospatial people because one of the big things in native title is working out exactly where the boundary is going to be once you’ve reached an agreement. So they were there. Once we’d worked through an agreement on a map they would go away and prepare the map and put the boundary on it and bring it out and do the agreement and people would sign the agreement. As you can appreciate there were inma and traditional ceremonies at one point. It was quite an extraordinary experience I have to say.
For the most part, we resolved the overlaps which then enabled the claims to proceed. Didn't resolve them all, there were a couple that lingered, but eventually they did all get resolved. As an exercise, it was extraordinary to be involved in that. Pity it couldn’t be written up in more detail, and I don't think it ever would. There were reports done on it in the Tribunal archives, but they can’t go into all of what happened because it was a confidential mediation. But big crowds and a big opening ceremony and we then split up and said, “We’d try and resolve this overlap” and had a particular member going to that overlap and another member to another overlap and we sequenced them out over the seven day period. I haven't spoken much about that so this has given me an opportunity to do it, and it was something very rewarding.
I don't think anyone else really would’ve had that experience and full marks to Parry Agius and SANTS for getting them together. I think they tried to replicate it later in a couple of areas in Western Australia, but I don't know that it ever really worked.
One of the issues, of course, going back to the arbitration side, was whether or not the tribunal would ever say no to the grant of a mining lease, and in the early days we were criticised for not saying no. That was, I think, some of the time because the groups were poorly represented, some of the times because they just had put together poor evidence about the native title rights and interests and sites that were being affected, because that’s one of the criteria that we take into account.
I did eventually get to the point where I did say no to two grants. One was Lake Disappointment outside Jigalong which I found was a really – they wanted to mine the lake and I forget what the Aboriginal name of it is now but anyhow, but I found that was just a sensitive site and mining shouldn’t go ahead without the approval of the native title holders. Then another one in Davenport Murchison up near Cue where there was a proposal again for a mining lease to be granted and I said no to that as well, again on the basis that there were just too many sites around that area for it to be done without the Aboriginal people agreeing to it. So there were a couple in the end where we said no, and personally I think that’s how it was supposed to work.
There were supposed to be times when the interests of the Aboriginal people either in the effect on their native title rights and interest, how they’re exercising their native title rights and interest, the effect on any sites that they had, their way of life, where that in the balance should be taken into account to say ‘no’ rather than allow the mining to go ahead.
However where evidence about that was less important or where it was clear that the mining could avoid the site or you could do something, you could impose conditions to enable the mining to go ahead and still keep Aboriginal interests intact. If we were able to do that then the mining lease would be granted. In a lot of cases they were granted. I think it worked the way it was supposed to work. I’d like to think that anyhow. It was very interesting because a lot of it was done out on country and you were hearing evidence from Aboriginal people and anthropologists et cetera and having to make a decision similar to a court.
So that was where I ended up after parliament, so that was good.
Shall we move on to your Law Society involvement?
Had you been a member of the Law Society from –
Yes, from day one, 1968. From the moment I was admitted, I’ve paid my dues.
You’ve been quite vocal over the time. When you were mentioning before about the fused profession when the plan was to separate the profession in South Australia, you were quite vocal at the time?
I think my position on this is sometimes misrepresented because I never had any objection to people if they wanted to go off and practice as independent barristers. If that’s what they chose to do I had no issue with that. What I didn't want to happen, and what I’m still opposed to, is moves to formalise it and end up with a de facto division of the profession, which is what we are tending to move to more which I think is a retrograde step, and I still think it’s a retrograde step. All I wanted was to keep it as flexible as possible so if people wanted to voluntarily decide I’m going to set up chambers and I’m going to be a barrister, well that’s fine. If they wanted to be a barrister and solicitor in private practice and do barristers work mainly but still be a solicitor, they should be allowed to do that. If they wanted to basically be a barrister but still see clients directly without having to go through a solicitor they could do that.
I just wanted maximum flexibility. I did not want a rigid division of the profession as they have in New South Wales and Queensland. That was my only argument, but it tended to be somewhat misrepresented so that people would say what you’ve said to me which is not entirely accurate.
I’m certainly in favour of the fused profession. I’m opposed to dividing the profession either legally or in a de facto sense. I’m in favour of maximum flexibility for people to practice once they’re admitted as lawyers in the manner in which they wish to, and that governments or authorities should not give preference to barristers for appointment to the courts and the like. In other words, if you’re a barrister and solicitor in the fused profession, or even if you’re a solicitor in the fused profession and you’re competent enough, then you should be eligible for appointment to the Bench. You shouldn’t be excluded.
What worries me is that the Bar Association now wants formal recognition. Governments will look to the Bar only to make their appointments, and the people who choose to practice in firms or even practice as barristers but don't join the Bar Association and do the Bar exams, that they will be treated as a lesser person than people who do become a formal part of the Bar. There shouldn’t be any preferment on the basis that you’re a barrister, except on a competence basis, that’s fine, but there are solicitors who can take judicial appointments as well, or other appointments. It’s just a matter of common sense to me; we had a good system and I don't think we should change it. It’s not like the old system produced duds. On our Bench in the 1970s was Bray, King himself, Justice Bright, Mitchell, Zelling (he went to the independent Bar eventually) but they were all products of the fused profession.
I don't actually think in my experience either that barristers necessarily make the best judges because being a judge in my view it’s not just a matter of being learned in the law. I think a very substantial qualification for being a judge is whether you’ve got an innate sense of fairness and sometimes barristers, because they’ve been in an adversarial system all their lives and used to arguing the toss, don't actually make the transition to being judges all that well. I don't think that you’ve got to be a barrister in order to be appointed to the Bench. So this is my argument.
Elliot Johnston for instance, he had his own firm and he loved his firm and he didn't support this division of the profession. He said you can still be a barrister in a firm and you get the best of both worlds, if you wanted it; if you don't want it that’s fine.
I also think that from an access to law perspective, it’s a negative. Everyone’s talking about access to the law and you’ve got a good system that works and all of a sudden you’re going to divide it and you’re going to have to employ two people to do the same job instead of one. This doesn't make any sense to me. So the costs increase. Elliott Johnston’s firm for instance, he was a very highly regarded barrister in the firm and a whole lot of other firms that operated in the ‘60s and ‘70s had a highly regarded barrister. People could walk in off the street and get the best legal advice in town.
Because if a junior practitioner didn't know what the score was, well they could wander down and get advice from a top QC. I think it’s a mistake to formalise it, and it hasn’t been formalised yet, but that’s why I resisted in my correspondence. I had set out here in correspondence, if you want it, with the Attorney General most recently about it. It was really the one serious disagreement I had with Len King. I didn't have a lot of disagreements with King. He was an excellent Chief Justice, ran a really tight ship and we had pretty good relationships, but on this issue he was very pro the independent Bar and I couldn’t understand why a former Labor Attorney-General concerned with access to justice would be wanting to take moves that in fact reduce access to justice and increase costs. But it all revolved around the issue of whether you could be appointed a QC and remain in a firm of solicitors.
It gets a bit complicated but it’s important to this debate. When I became Attorney-General in 1979 he said to me, at one of our first meetings I think, “I intend to require an undertaking that appointees to silk, Queens Counsel, have to give an undertaking they will only practice at the separate Bar and not in firms” which they’d previously been able to do. I should’ve been a bit more alert but I said, “Well I suppose that's a decision for you”. Anyhow he did it. Subsequently I thought this was a wrong decision so we then passed legislation which said that sort of undertaking was null and void. After that he then introduced another undertaking which said that, “You can still be appointed QC but you can’t use the title if you stay in a firm in any correspondence or any public way”, so you can’t use the QC title to advertise –
So I’ll give you the title but you can’t actually use it?
Yes. Now to my way of thinking this was actually wrong. It was using an artificial device to get around what parliament had said is the law and it was actually quite wrong to do it, especially wrong for a court to do it. But then I left the job and I think John Doyle continued to pressure the Attorney General about it. Eventually Atkinson actually changed the legislation to sanction this second undertaking which to my way of thinking was an undertaking designed to avoid the intention of the parliament. Now these are harsh words I know, and something like that is now in the rules of Court. The Supreme Court still accept this totally dodgy undertaking and they won’t do anything about it.
You can understand where my concern about that comes from, because once you have that sort of undertaking or requirement then it discourages people being a QC and remaining in a firm, and once you do that then you’re tending towards a de facto separation of the profession.
If you give preferment only to barristers, then if you give recognition to the Bar Association for certain purposes, then you end up in a de facto division of the profession which in my book is not in the public interest. I’ll go back to the Poverty Commission in the late 1970s where Julian Disney at the Poverty Commission said that this decision about QCs was inimical to access to the law and cheaper justice. To put it at its worst, it’s a make work proposal for lawyers. Again that’s pretty hard stuff, but it’s true. There was no justification for this. Now they would say, “You get better legal representation because they’re better skilled” but in my view that could always be dealt with in a different way. You could still be quite skilled as a barrister as all those people I’ve mentioned while still operating in a firm. You didn't have to be at the independent Bar to have that level of skills. A lot of judges now anyhow complain that the trials are too long, the barristers go on too much, they take too many technical points.
And legal costs has been one of the issues that you’ve been outspoken about as well hasn’t it? That people often can’t afford to have access to justice. They have the access to justice but they can’t afford it.
Where did this quote come from, do you know?
That’s a good question, and I think it was from an article in the Bulletin.
Right. Well, legal costs is a massive problem. I’m just not sure what you can do about it. The sorts of things we tried to do - well Legal Aid obviously was an important aspect of that in the late 1970s, the Whitlam government, and then the establishment of the Legal Services Commission here whenever that occurred, late ‘70s/early ‘80s, but that depends on funding from government, and here as in the UK recently it’s an easy spot to make cuts. The establishment of the Aboriginal Legal Rights movement, legal advice service, that’s all supposed to help improve things for Aboriginal people but statistically it hasn’t because there’s now more Aboriginal people per capita in jail or as a proportion in jail now than there was even at the time of the Aboriginal Deaths in Custody Royal Commission.
So, Legal Aid, you can try that. We did things with interpreting by mandating interpreters for people who couldn’t speak English in police interviews and in courts, which just used to be a casual arrangement. Again that was designed to assist with access to justice or equality in the justice system; it didn't deal with the issue of costs so much. The Litigation Assistance Fund which I had to approve, which was a proposal that came up from the Law Society, but it still required the government to approve it, or required me to approve it which I did, and even though there was some considerable resistance to that from the Legal Services Commission at the time because they wanted the money and this was slicing off some of the Guarantee Fund money, and I think that’s generally been regarded as a reasonable success story in providing access to people who wouldn’t otherwise had it. We did introduce contingency fees and they were reasonably constrained contingency fees, but they’re not the total answer and they’re a bit controversial as well.
At a general policy level, in the consumer area, tribunals were set up instead of courts, so there was the Residential Tenancies Tribunal and what eventually became the Commercial Tribunal for consumers to make complaints and get their issues dealt with in a less formal way. All these administrative tribunals, whether they’re the Native Title Tribunal or these sorts of tribunals, they’re supposed to make the law more accessible because you end up in a less formal environment I suppose; but you still have a degree of formality about them and in a lot of them, and quite rightly, legal representation is important. I suppose you can say you can’t have legal representation so there’s going to be less costs and it’ll be more affordable, but then there’s a problem of your case being properly heard and it’s a real dilemma what to do about it. It’s my view, and it’s a sad thing to say, but someone with deep pockets has got a better chance of getting what they want out of the justice system than someone who hasn’t got deep pockets, and frankly they can game the system, and they do.
It’s the way of the world really, isn’t it?
I think it’s the adversarial system partly that causes this. Judges are sometimes not tough enough because they’ve all been barristers so –
Everyone wants a day in court?
Yes, and well he’s a barrister and he’s put this point, maybe it’ll be appealed against. You get a bit of nervousness from judges because there’s even greater oversight now than what there used to be. Cases are longer so how can you fork out money for any case that’s going to go five days. Even middle class people - forget the poor - the middle class person who gets involved in a nasty dispute has got terrible trouble finding the money to take a court case. So there are things that are being done but it’s really got quite an intractable –
There’s no easy answer to –
I don't think it’s got any better, I have to say. I think it probably has got worse, as I say, more trials, longer. For Aboriginal people it’s even worse. I suppose they’re poor so they do get some semblance of legal representation, but they still end up in prison at a much greater rate than other people. I saw somewhere recently that even for the same offences Aboriginal people end up in jail more than non-Aboriginal people. I know we did set up I think an Access to Law Committee at one stage that came up with a whole bunch of recommendations. The other area of course we promoted was ADR, Alternative Dispute Resolution, mediation et cetera, and again that’s controversial because people say, “People don't get their day in court and they’re forced to compromise through a mediation process”.
It must save them some money undertaking that process, as to going to Court?
Yes, and I think that’s happening a lot. In the best of both worlds everyone would have enough money to have a full case in court, but that’s not going to happen so you’ve got to find mechanisms to deal with it. But it’s not easy and it’s certainly not getting any easier. As governments are withdrawing taxpayer funding from Legal Aid, it’s getting even more difficult I think.
Shall we switch to how do you keep yourself occupied in sort of retirement now? You were talking before that you enjoyed bushwalking.
Yes. I’ve travelled a lot. I was always interested in travelling. In 1963/’64 in India, in 1970 the grand tour and then Italy in 1974 for eight months. Then I travelled quite a lot when I was in government when I could. Took leave quite a bit. But yes, post on the tribunal I’d travelled around Australia.
So my interests, I do enjoy travelling and since I retired, where have I been? Patagonia, Dolomites in Northern Italy, I did the Haute Route from Chamonix in Zermatt trekking. Prior to that my wife and I trekked in Nepal and the trek around Mont Blanc, but she broke her leg in Italy a few years ago so that didn't help so she’s a bit constrained now. Cinque Terre, a walk in Tuscany. As I said I did the Coast to Coast in the UK a couple of years ago.
You and Suzanne were married in what year?
Good point. 1978.
And two children, is that right?
No. The other thing I really enjoy too, we enjoy food and wine so a lot of the travel involves going to restaurants and doing wine tastings and that sort of thing, pretty heavily into that. My wife’s an excellent cook so that helps.
Looking back on your career, it was a pretty good choice initially to take that path down to studying law?
Well I guess objectively, even though I came to it by chance a bit, I can’t regret where I ended up. I had a career in private practice, I had a career in parliament, I had a career on the tribunal, all of which were pretty interesting and I think that for the most part it was enjoyable in all those spots. In every job you have issues and problems of various kinds. In a bureaucracy like the tribunal you’re dealing with a bureaucracy which has got its own problems and in parliament obviously you’re in conflict situations often which can be a bit nasty from time to time. I enjoyed private practice, the people you meet, camaraderie. So yes, even though it was a bit lucky, it was certainly a very good career I thought. Can’t really complain, can I? I shouldn’t. I got lucky in terms of getting into parliament too, just. My career in parliament, I had all but four years on the frontbench
You were in the thick of it.
Some people go into parliament and spend 20 years as a backbencher either because they’re in opposition or because they’re not favoured by the ‘powers that be’ to get a ministerial position. That shouldn’t be that frustrating I suppose because being a parliamentarian and representing people is a very important role to play in a democracy in society, but I could imagine for some people 20 years in parliament and it’s all in the backbench and you want to be a minister could be a disappointment, but in that sense I was lucky. The biggest negative which I haven't mentioned is when I got attacked in the late 1980s about so-called associations with the Mafia and that was pretty unpleasant to say the least. That was some alliance of the media and the opposition at the time.
Dealing with the media is all part and parcel of being in the public eye isn’t it?
There’s the good and the bad isn’t there. How did it impact you and your family?
Very badly. I ended up in a mental hospital for a few days. You don't need all the details on it. I thought one of these days I might –
But obviously that was in the media?
Oh yes, yes. That was not a good scene. I think in retrospect I was probably a bit too thin-skinned about it. If I was reflecting about it, maybe I was too thin-skinned to go into politics, I don't know.
Maybe that was your caring nature and your social conscience.
I don't know. Anyhow the point is you do have to have a fairly thick hide, but then again if your hide’s too thick you don't really do the job because you’re not sensitive to what you should actually be doing, so it’s nice to get the compromise right. But for a period there I didn't, so yes, I took these things a bit too personally.
At that time did it cross your mind to think it’s too much and I’ll resign?
No, not really.
You still wanted to push on?
It was a short term thing when I got back into parliament, much to the surprise of the opposition, I’ll add. At the time they thought they’d probably done me in. But no, I didn't really – not for that reason anyhow. I wanted to move on later because I thought I’d been there long enough. I guess that was really the major negative. I enjoyed the Ministerial meetings, the Attorney-Generals meeting, the state/federal state stuff. It was good. I’m not going to go into it now but I might write about it one day.
Yes, maybe that’s in your future memoirs.
Yes. But it was because I spoke Italian and because I had connections to the Italian community because I’d met a couple of people in innocent circumstances that were less than desirable. There was leaks from police quite malicious leaks in National Crime Authority at the time, and from police sources, which shouldn’t happen but which happened at the time with law enforcement agencies. A whole lot of information, which was patently wrong, was fed to the media, and they took it on and yes, all ended up in tears, for a short period of time.
Thank you Chris for spending some time chatting with me today. There’s nothing else that we need to cover do you think?
I’m just having a quick look through here.
I’ll just close the interview now and we’ll reconvene if we need to.