Interview conducted by Juliette Brodsky
Q Well, Julian Burnside QC, thank you very much for making time to be interviewed by List G Barristers.
Q There’s a lot to get through in a reasonably short time, but I want to start, if I may, with a quote that I saw in one of your books. It’s the American Judge Oliver Wendell Holmes, who said “A word is not a crystal, transparent and unchanging, it is the –“
A “- Skin of a living thought which changes its meaning, according to the circumstance and the time at which it is used.”
Q That’s right. You mentioned that in your book in the context of a Supreme Court case over in the US, Dred v Scott. I was thinking, it also says something of your life, how your career unfolded, your preoccupation with words and also your involvement with justice.
A Perhaps –
Q Especially the sense of “the skin of a living thought” – I thought that summed it up somewhat.
A It’s a very skilful metaphor. My interest in words comes from much more personal origins. My Fair Lady was the big thing when I was a kid –
Q “Why can’t a woman be more like a man?”
A That one – yes. My parents’ marriage was breaking up and my father reminded me very much of Rex Harrison and Dad loved “My Fair Lady”, so, you know, it got in my skin.
Q He says a lot - Professor Henry Higgins - about words. You would have seen “My Fair Lady” when you were a teenager?
A I saw the film later – I think I’ve seen it on stage. The musical comes from the play Pygmalion by Shaw. Henry Higgins is based on Henry Sweet who was a philologist in the 19th century, and a very unpleasant man apparently. I think Rex Harrison managed to soften it a bit.
Q Are you a Shavian? Are you fond of Shaw’s plays?
A That perhaps overstates it. I think (Shaw) was very gifted. I’m not sure I’ve seen too many of his plays, but yes, I think he’s great.
Q You mentioned growing up in rather fraught circumstances. I’m also interested in the topic of injustice. You talked about how, as a child, you constructed a beautiful model ship. I’m looking at one here in your chambers, which I take it you didn’t construct?
A No, I’m looking after it for a friend and taking good care of it!
Q But it’s what you refer to in your book as the “Cutty Sark incident” and it had to do with your brother.
A Well, there’s a bit of background. Because my parents’ marriage was breaking down, it was very tricky. My brother had been very sick as a young child and we were told it was appendicitis. He had an appropriate scar – it was a very big scar, and when Mum and Dad’s marriage was breaking down, it was very difficult for Mum. So she had lots of very strict rules, and being a dork, I used to follow the rules scrupulously, and never got thanked for following the rules, and didn’t really expect to. But Ian, who had a very sunny disposition, tended to break the rules and he didn’t get in trouble for it.
The high point-low point of all of that was the Cutty Sark incident where I had made this model ship – because I was a dork, and like kids back then, I used to make model ships, model aeroplanes and so on – and the Cutty Sark was a really, really good model. I came home one day and found that Ian had been playing war games with it on the compost heap and had burned it to the waterline. I was absolutely enraged because it represented a huge amount of work and it was a very beautiful thing, and he didn’t get told off for it. All of this added to a growing sense of injustice. He was being treated differently to the way I was being treated, and it just seemed unfair. Kids notice injustice much more readily than grownups do. Now, what’s odd about that is that I think that’s the origin of my sense of injustice, and the importance of justice. But then when he was 20, Ian broke another rule. He went to Geelong by train, couldn’t be bothered waiting for the train on the way back and decided to hitch a ride home. We’d grown up with two very strict rules: “no crew-cuts (this was not long after the end of WWII, and Americans weren’t really popular) and no hitch-hiking” - those very strict rules. Anyway, the driver who picked him up was pretty hopeless, ran off the road on a bend and Ian was killed. It was only after Ian died that Mum told us that what we’d been told was appendicitis was in fact a rare form of cancer, of which eight cases were known at that time. Four had survived to puberty, but four had not. I think my sense of injustice would have been very different if I’d known that, because…it kind of makes sense: you favour the one who’s under a death sentence.
Q Did you have the opportunity later to ask your mother why she omitted to tell you this?
A No, no… I don’t think Mum was very keen on me, to be honest, because I was much more like my father than was good for me.
Q Hardly your fault, of course.
A Well, Dad had picked me as the bright one of the litter. I think I thought like him, my interests were like his and I was very different to my brother and sister. And that was not a good career move.
Q Your father was a urologist, and a prominent one in his day. I know for a while you took an interest in his work, but then there was a decisive incident when you decided perhaps being a doctor was not in your life plan.
A Ha, ha! When I was a kid, Dad used to take me to operating theatre with him, have me scrub up and gown, and put on gloves. I remember one particular occasion when he was doing a ureterolithtomy: which is removing a stone from the ureter, which is the tube that goes from a kidney to the bladder. The operating site is masked off with pale green sheets and there’s a sort of yellowy substance put over the skin, and then he cuts through the skin and the fat and stabs his way through the abdominal muscles. It’s all just abstract colours and things. Then he found the ureter, and found the stone, and said, “Reach in and you can feel the stone”. So I reached in and felt the stone and all of a sudden, instead of just being an abstract pattern of red, yellow and green, it was all warm and slimy and human. Clearly it must have affected me, because a nurse came and gently guided me to a chair and that was the end of the career (as a doctor).
Q I can well understand. Your father, though - he must have suffered a bit of post-war trauma, do you think?
A Dad was in the Changi POW camp from the fall of Singapore until the end of the war. Oddly, from reading his diary, which he kept every day in the camp, my impression was that Changi actually was the making of him. He started off as the only son in a very rich, upper-class Toorak family, very prominent, and through the diary, you can see him gradually become an egalitarian. He really was. So it was a remarkable transformation; I think he came out of Changi better than when he went in.
Q Did he happen to encounter Sydney Piddington in Changi? Sydney did ESP experiments.
A He did, he did. In fact, he was one of Syd Piddington’s experimental props or subjects. Syd Piddington would have his subject (that would be my father) sitting on a chair opposite him. There would be a bookcase at the back of the stage. Someone from the audience, chosen literally at random, would come up and choose a book, at random, would open it at random, take it across to Syd Piddington who would stare at the page very carefully, and then my father would start speaking the words on that page. The trick was that the person who’d chosen the book had to walk past my father in a particular way and he taught himself to take a mental snapshot of the open page, and could read the text from the mental picture. He’d lost the knack by the time I was born and old enough to understand what all that was about, but it was a remarkable thing. In Changi, people developed these astonishing skills, because it helped.
Q So, he was an ESP expert, in a way...
A Well, except that it was nothing to do with ESP – it was a trick. It looked convincingly like ESP because who on earth would think you could take a mental picture of an open page and read from the mental picture? And he did.
Q That’s interesting to know about your father. Your mother was a nurse behind enemy lines at the time?
A Yes, she was a nurse in Bougainville, with the Red Cross, behind Japanese lines. I don’t know much detail of it. There are no great stories that I’m aware of.
Q And she didn’t choose to share them with you.
A Well, either there are no great stories or she didn’t choose to share them.
Q You mentioned being a bit of a dork, which sounds a bit unkind to yourself. You did well at school, but again there was an experience of injustice, I believe, which had to do with sporting prizes - at Melbourne Grammar.
A Ah yes. I think I surprised everyone. At the end of Year 12, I got four prizes and two scholarships. I got colours for swimming, diving and rugby. I was a champion diver in the school and had been competing in open competitions since sub-intermediate (which was like Year 9) and I was in the First XV Rugby, but I got second colours for both sports because they were not regarded as first colour sports and that struck me as pretty unfair.
Q A sportsman is a sportsman.
A I think they’re probably more enlightened now, but back then, the only sports you could get first colours for were cricket, rowing and football. “Real football“, not rugby!
Q You write about a German teacher, too, who you said was very unpopular –
A Yes, Mr Bland.
Q Yet he spent a lot of time with you.
A Mr Bland was one of those teachers who was quite strict and not at all popular. He wasn’t a person who you could immediately gravitate to. Anyway, he was a German and French teacher. I had him for German for three or four years. When it came to matriculation, which was what we called Year 12 back then, I wanted to do French, German and art and a couple of other subjects, but French and art clashed. I think it’s because art was regarded as a bit of a fig leaf for dumb kids from rich families, I’m not sure –
Q Or dangerous and radical kids, perhaps.
A Er, not a lot of those. I wanted to do art because I thought art was interesting and the art teacher was very entertaining and art classes clashed with French, so I thought “Well, I’ll do French by myself”. So Mr Bland, to his credit (I was doing German with him), offered to set me French homework every week and to mark it, and we’d get together from time to time and talk it through. At the end of Year 12, I won the French prize and the German prize, all really to Mr Bland’s credit. I realised a year or so later that I’d not taken the trouble to thank him for going out of his way. I think in my childish way, I thought “Oh well, he’s a teacher, he’s been teaching me; that’s what they do, it’s their job”. The more time passed, the worse I felt.
When I was in my first or second year of law, there was a terrible aircraft accident out of London. Mr Bland’s wife was on the plane and she died. I felt very sorry for Mr Bland. I realised that too much time had gone past – the more time went past, the more difficult (thanking him) was. It sort of disappeared. A few years ago, a magazine I had never heard of wanted me to write a paragraph about an early achievement. So I wrote about winning the French prize, Mr Bland and all this and that. A week later I got an email from a guy who said that he was Mr Bland’s son-in-law. He’d seen the article, had taken and shown it to Mr Bland who was in a nursing home, aged 93, and Mr Bland remembered it and was very happy to see it, and died two weeks later. And I thought “at least I managed to close the circle, just in time”.
Q I’m glad you did.
A So am I.
Q So, at that time, you weren’t especially entertaining notions of becoming a lawyer – you went to university and did economics, as well as law.
A I didn’t have the faintest idea of what to do at the end of Year 12. I’d got accepted into four or five faculties at Melbourne and Monash and I didn’t really know. They were diverse things – engineering, commerce and so on. A former boyfriend of my sister was a bloke I liked. He was doing law at Monash, so I thought “Well, I’ll do law at Monash – then I’ll know someone at least, so I won’t be too lonely”. I never actually saw him, but that’s why I did law.
I had vague ideas of being an artist because I really was interested in art, but I wanted an income as well. Back then, being a management consultant was very fashionable, so I thought “that’s a possibility”. That’s when I decided to do an economics degree. I majored in economics and accounting. I did that in the hope that I would at least get a grownup job when I finished, but then in my second-last year at university, I was asked to join the Monash intervarsity mooting team for a competition in New Zealand. Given that I’d never even been to Tasmania, a free trip to New Zealand was unbelievably exciting. I won the Blackstone cup as the best individual mooter, and that was pretty good. The Chief Justice of New Zealand had been the presiding judge at the final moot and at the drinks-prize-giving thing at the end, he asked me what I was going to do. I said, “I think I’m going to be a management consultant” (I didn’t dare tell him I wanted to be an artist). Anyway, I said I was going to be a management consultant, and he said, “You should go to the Bar”. So that was my career planning; that’s what made me think I’ll go to the Bar. But I didn’t even know what going to the Bar meant.
At the end of that year, another member of the team, Bill Wallace gave me for Christmas Irving Stone’s biography of Clarence Darrow, which was a remarkable book – so enlightening. I didn’t know what it was like to be an advocate, but Clarence Darrow really set me on fire. He was a sensational, remarkable man. I never saw Clarence Darrow in action obviously – he’d died in the late 1930s or early 40s.
Q What was it about Darrow’s style that spoke to you? You’ve written that he had a clear sense about the injustice of situations….
A He went to the heart of things and he spoke in plain language. He said once that words should be like clothes, they should fit the person they’re designed for. That’s pretty good. He said in the Loeb and Leopold plea which was his great, famous plea against the death penalty – it was two very bright young men who’d been convicted of a very nasty, deliberate, cold-blooded murder – he painted a word picture for the judge of what it would be like on the morning of their execution. He said they’d be woken in the dark hours before dawn, they would be shackled hand and foot. They’d be taken to the execution chamber where a hood would be pulled over their heads, a noose placed around their necks, the trapdoor would be released and they would fall until the rope broke their fall. He said, “If they are to die like that, it will be by your cool, deliberate, premeditated act.” That’s really taking it up to the judge – I think that’s fantastic advocacy. That was in 1924.
Q By comparison, in Victoria, we had the last person to be hanged in the late 1960s – Ronald Ryan –
A Ryan, 1967.
Q Did you take an interest in that case at that time?
A Only a passing interest. By a strange twist of fate, a good friend of mine now is Barry Jones who led the campaign against capital punishment back then. Even though he failed in the immediate task, he succeeded: because Ryan was the last person executed in Australia. Bit by bit, the states stopped executing people, and bit by bit, they got capital punishment off the books.
Q It was said that (former Victorian premier) Henry Bolte wanted to make an example of him.
A That was because of the Tait case. He’d been frustrated by the Tait case a few years earlier and was absolutely determined to kill Ryan. I should have developed my contempt for politicians earlier.
Q Yes, because I believe you were a conservative voter, weren’t you?
A Well, I still think I’m a conservative person: I don’t think a respect for decent treatment of human beings is radical. It’s conservative, actually.
Q At the time, in your student days, you voted Billy McMahon and then Malcolm Fraser –
A Voting for Billy McMahon is a horrible thought, isn’t it?
Q I’m sure you had a good reason!
A No, it was just total indifference. I was born in 1949 – that’s the year Robert Menzies started his record run as PM. There was a Liberal government in Canberra from the year I was born until the year I graduated from university. Because it was at the end of ’72 that Whitlam was elected. I grew up in a Liberal-voting family, breathing Liberal air, so I voted Liberal out of habit. Maybe because my mother expected me to… Total indifference - I couldn’t have cared less.
Q You weren’t unusual in that regard, but you did have Gough Whitlam to thank for deferring conscription –
A Well, my birthday had come out of the ballot. That process of being conscripted struck me as a bit unfair. But I voted against Whitlam in 1972, even though he had promised to end (conscription) – I was completely lacking in self-interest (and insight) – ha ha.
Q So, just while you were at university, do you recall any particular professors that you admired?
A Oh, Louis Waller. Absolutely, pre-eminently. Louis Waller was spectacular. I may have the details of this recollection wrong, but back then in your first year, you did criminal law because that’s a way of keeping kids interested. Early in the criminal law course, there is the case of the Queen against Dudley and Stephens. Dudley and Stephens and two other people, a cabin boy and a man called Brooks (I think) had been cast adrift when the yacht they were on sank, on its way to Australia. They were stranded for a long time and they were all very, very weak. All they had for provisions was two cans of something horrible - tinned cabbage - so they were doing it pretty badly and the cabin boy in particular was very weak. Dudley and Stephens proposed that they should draw lots to see who among the four would be sacrificed and eaten by the others, to make sure that someone survived. Brooks would have nothing to do with it, the cabin boy drew the short straw and Dudley and Stephens ate him. They were rescued not long afterwards, and they were charged with murder. The question was whether necessity is a defence to murder. It’s the sort of case that is designed to capture young kids’ interest in the law.
Anyway, Louis Waller was the lecturer and he was also my tutor. In the tutorial, shortly after the lecture about Dudley and Stephens, Louis started the tutorial by saying that some event associated with it had happened in a particular year. He said “What other event of great importance happened in that year?” We were all sitting around: what the hell is this? It was the publication of one of Charles Darwin’s books (probably The Descent of Man, 1871) and we spent most of the tutorial talking about the theory of evolution and the way that had revolutionised thinking in the 19th century. I would attribute to that tutorial my sense that the law is deeply embedded in the community: it’s not just this great force that hovers above us all, sending down lightning bolts. I think that’s probably where it comes from.
A Louis was a really, really great teacher. Probably the best teacher I’ve had, anywhere any time.
Q So, you had formed by then – and thanks to Sir Richard Wild (who you mentioned before – the Chief Justice of New Zealand) – an ambition to go to the Bar or you were thinking maybe be a solicitor first?
A No, no, this was first year law – I was still thinking of being an artist! This was before I’d picked up economics. But I was obviously a dork, and conscientious, wanting to do my best at this thing I’d embarked on, so what I could learn was good.
Q You described yourself as a “late developer” so that was probably consistent. Following university, what happened then? Were you still a little undecided or were you by then resolved to embark on your life’s course?
A When I was in New Zealand, I had decided to become a barrister without really understanding what that was about, but because of Ian’s death when hitch-hiking, I decided to spend a year after university hitch-hiking around Europe, so I did that. I thought I’d give fate a fair chance at me, and it missed.
Q You were feeling guilty, were you, about his death?
A No, I thought, “do I believe in fate or do I believe in common sense?” I thought well, there’s one way to test it and so I spent a year hitch-hiking. I really travelled on the cheap; I was sleeping in forests and I think my budget was something like $25 a week, including the fares across to Europe and back. When I got back to Australia, I think I had $8 left. I then did articles and at the end of my year of articles, I had $10. So I thought I’d better do a year as a solicitor because I figured I’d need more than $10 to live on! I did a year as a solicitor in order to make the money so I could go to the Bar.
Q Where did you do articles?
A I did articles at Lander and Rogers who were then just a small Queen Street firm, directly opposite the RACV club, at 140 Queen Street – they’re now a very big, glossy firm, one of the high-rise buildings in Bourke Street. I made no secret of the fact that I was going to the Bar, which I did at the start of ’76.
Q And that’s when you signed the Bar Roll. You read with Peter Rendit, (who later became a Judge in the County Court). What did you mostly learn from Peter while you were his pupil?
A Did I learn anything from him? That’s an interesting question. How best to describe him. Peter was one of those people who was agreeable and friendly to everyone he met. He was generous with his time. I chose to read with Peter because he’d lectured me in ethics during my articles year, and he seemed like such a nice person, I thought, “He’ll be someone to read with”. Probably not the brightest way to choose who you read with, but I’ve never regretted it for a minute. And it was Peter who, while I was reading with him, told me I should start collecting vintage Portuguese port. He knew that I had a bit of an interest in wine, and he said “Vintage Portuguese port needs to be cellared for a long time, so now’s the time to start collecting it”. I thought that’s good advice, so I started collecting it, bottle by bottle, when I could afford it. But before I started collecting it, I read some books about it (because I’m a dork) and one of the books I read was by Sarah Bradford – it was called “The Story of Port”. Sarah Bradford clearly knows port pretty well, and her book had tasting notes at the back, of various great ports that she had drunk. The book had been written in the late 60s-early 70s and one of the tasting notes was a wine she had drunk in the early – mid 60s, the so-called Cockburn’s Waterloo Port: vintage 1815. So 150 years later, she drank it and her note, as I recall, said that it was “a bit faded, but still drinking well”. And I thought, “That’s the one for me”. I really like the idea that you can have wine which was vintaged while Beethoven was still writing his late quartets, and it can still be drunk.
Q Did you ever get to taste anything of that vintage?
A Not of that vintage, no.
Q What was the earliest?
A Probably 1963, because there were still ‘63s around when I started collecting. I have hunted around for port that was vintaged when Beethoven was writing his late quartets and so far I haven’t found anything. But I think my life will be complete when I can get a bottle of port, vintaged when Beethoven was writing his late quartets, have some friends (who are a string quartet) around, have them play the relevant late quartet and share the wine with them. Then I’ll be ready to go.
Q There’s a mission for the Victorian Bar! I’ve seen a lot of the early Bar News – in your spare time, you used to take photographs for it and wrote the odd article. You do write articles all the time for the Bar News, mostly on etymology. So that was just something that you volunteered to do?
A Yes, photography was something I was always very enthusiastic about. I had spent a huge amount of time at university taking photographs – in fact, I thought that the field of art I’d like to get into was photography. I used to make some pocket money by taking photographs of friends racing their cars (at Calder and places like that). More recently, since I married Kate, one of the friends that I have made is Bill Henson. I’m kind of glad I didn’t go into photography because I wouldn’t be able to take photographs as well as he does.
Q But not necessarily as controversially either.
A Ah, actually the controversy was completely confected by the woman whose name I’ve forgotten. That in turn led to another interesting exercise in writing. I got a call from Louise Adler who was then running Melbourne University Press – they were producing a series of little books: “On this”, “On that”…. They are really not books, just 20,000 word essays. She said, “Would you write a book on liberty?” I remember saying to her, “J.S. Mill did that – I’m not going to try and compete”. But I was interested in the fact that art is privileged, and Bill was going through all this crap – I said, “Privilege is an interesting subject; I’ll write ‘On Privilege’”. So I did. Privilege has a number of different aspects, including in the arts. That in turn had an interesting follow-on. I observed at one point that art introduces us to “the shimmer of the numinous”, which I thought was quite a good expression. Anyway, Kate and I were at a function a few years later. A young woman introduced herself and said that she’d read “On Privilege” and liked it, and was particularly struck by the phrase “the shimmer of the numinous” – so much so she’d had it tattooed on her shoulder.
Q How nice!
A Which is probably the best crit I’d ever had.
Q We haven’t mentioned that your wife Kate Durham is an artist.
A She is.
Q (Back in your early years at the Bar) I imagine the arts were far from your mind in many respects. You were acting, as you put it yourself, for “the big end of town”, or you gradually grew your practice to do so.
A Well, the thing is – having stumbled into law the way I did, thinking I’d like to be another Clarence Darrow, because I had majored in economics and accounting, I found myself briefed by the Tax Office. Because I understood spreadsheets and accounting easily enough –
Q And you had computer skills.
A That came a bit later, in the late 70s. I was comfortable looking at balance sheets and so on, and that took me a long way from the arts and up towards the big end of town.
Q It was to become very important in the 80s and 90s, which is when you were doing a lot of that “big end of town” work.
A Well, the 80s was (a time of) the takeovers boom and corporate collapses. Mind you, art was never too far from my thinking because once I had an income, I started buying paintings.
Q You became a collector. There wasn’t a Readers’ Course when you started at the Bar – that came a few years later. How did you develop your advocacy skills? You were already a good debater. Did Peter Rendit provide you with tips or did you pick up your approach from observing others in court?
A I suppose just by watching…. I don’t know how people develop advocacy skills.
Q Certainly practice helps.
A The Readers’ Course is good. Because I had mooted a lot at university, I was accustomed to standing up and talking – some people find that a terrifying idea. I don’t.
Q Was there anyone you’d observed during those years whose approach you admired? I’m just thinking of interesting characters you met during your early years at the Bar.
A During the early years - let me think ….. The advocates that really impressed me were John Walker, who I was junior to.
Q I’ve interviewed John Walker - was that in the counterfeit $10 bill case?
A No…. it was one of the very early prosecutions of a bloke who’d been promoting a tax avoidance scheme - the Black Box case (DPP v Stephen Baker). John was a tall man with a good voice and a commanding presence in court, typical of the criminal bar, actually. But also Brian Shaw impressed me – a very different character – Cliff Pannam…. Yes….
Q Who was your clerk when you first started?
A My first clerk was Doug Muir. It’s a funny thing – I went to the Bar in ’76; most of my friends at university had gone to the Bar in ’73. Unlike them, I did an extra year, because of picking up my economics degree a bit late, partly because I spent a year overseas and partly because I spent a year as a solicitor. The Bar had increased in size dramatically and they all warned me that the Bar had grown so big, the time for going to the Bar was past. No prospects anymore. So that was daunting. And Doug Muir’s list had been established because of this rapid growth of the Bar. Doug Muir’s list became Glenda McNaught’s list, (which) subsequently became List G.
Q So you’ve really been with this list all along?
A Pretty much. I’ve had the same secretary (Sue Henderson) most of this time too, so I’m not very adventurous.
Q With Doug Muir, how was it dealing with him in those early years? Were you scratching around for work, or were you a busy young junior?
A No, no, no. Back then, I had a very slow start at the Bar, I’d say. Back then, of course – this is way before mobile phones – you had a telephone that was connected to the clerk’s office and you dared not leave your room in case the phone rang, if you weren’t there … well, someone else gets the brief. But I wanted to use the time constructively, so I started reading accounts of famous trials and famous lawyers. I’ve actually got a pretty good collection of books about famous trials and famous lawyers. I thought if I have to sit in my crappy little room waiting for the phone to ring, I might as well be learning stuff. I can’t go and watch people in court, so I’ll read about the great people in court.
Q We haven’t got time to talk about all your cases, but you acted for a number of prominent businessmen including the late Alan Bond, well after you attained silk in 1989. I read an interesting expression and I wonder if it sums up many of your clients then – at the criminal bar, you’re dealing with mostly rogues; when you’re at the civil bar, you’re dealing with people whose memory is unreliable.
A Ha, ha!
Q That must ring a bell for you with regard to the late Alan Bond!
A That may be a bit unfair for Bond. Alan Bond is one of the very few people I’ve acted for who I’d say was truly charismatic. Terrible witness, not a good memory, although I suspect he was not dishonest. I think he was one of those people, a bit like Donald Trump, whose understanding of what is true is what suits him at the moment. Not conscious lying or anything like that – just what’s the right thing for the moment.
Having said that, it’s an invidious thing to categorise clients. A few years ago, I was briefed to act for the footballer James Hird at the AFL Tribunal. I didn’t know who he was, didn’t know the name at all. I have no interest in football whatever. So from a standing start, with no prior conceptions about James Hird, by the end of my involvement in that case, I was convinced he was the most honourable person I’d ever acted for. He’s a really, really decent man.
Q Mind you, though, when acting for people, it is incumbent on barristers to believe their client, or at least have a strong conviction that you can do the work for them. That is important, isn’t it? I’ve had others say that to me.
A It’s useful, but it has its limits. I remember a case I did quite a long time ago for a state government department. They’d been sued by a bloke who (was) born schizophrenic. His particular form of schizophrenia was a voice telling him to jump; it was very, very highly focused. Having grown up with this, he had enough insight to know when the voice was getting too insistent. He would check himself into a mental hospital and ride it out. At one point, the voice was getting a bit insistent and it was during the Kennett years, when Kennett was saying community treatment was the way to deal with all this. So this guy goes along to a mental hospital that he’s accustomed to going to. He might have been alerted that something was wrong when they put him in an upstairs room, but didn’t think about it. After being there, being treated, for a couple of weeks, one morning, he goes down to the day room where there was one nurse on duty and tells her, “I’m going out for a walk”. She says “fine”. He wanders out, there’s no fences, no gates and he wandered down the hill to an overpass over the Tullamarine freeway and he jumped. He landed on the freeway - that didn’t kill him. He got run over twice and that didn’t kill him but it left him a high quadriplegic.
So I’m briefed, not long before trial, to act for this government department, who he had sued. Towards the end of the conference – there were one or two doctors, a public servant – I said “What really puzzles me about this is that the voice was still telling this guy to jump, even after two weeks on treatment”. They said, “Well, look - just between you and me, we were giving him a placebo.” I said, “You’ve got to be kidding. You’ve got to pay him a lot of money”. I was not prepared to accept for one minute that they should rely on that. I said, “If this comes out, you’ll look worse than Dr Mengele at Auschwitz”. They said “Well, we don’t have to give him that much because schizophrenics don’t have very long life expectancy.” I said, “Well, have you read the material? Apparently doing what the voice said has resolved his schizophrenia. You’ve got a high quadriplegic who’s quadriplegic because of your misbehaviour, and he’s going to live a normal life. So give him a lot of money.” And they did. So, I wasn’t prepared to believe them for a minute. I thought, they need to face reality.
Q That’s very revealing of your approach. Do you have a kind of homing instinct for when people in effect are not being honest or concealing something?
A I don’t know: all I can say is there’s been cases where I’ve thought someone was dishonest. I may have missed a million cases where they were being dishonest and I didn’t notice.
Q I’d like to ask you briefly about Ok Tedi. I gather from reading your books, it was a bit of a turning point for you as a barrister. It was a David and Goliath battle at the time, and as you’d well remember, it was about the dumping of mining waste, tailings and even cyanide into a river system in Papua New Guinea.
A Actually the tailings dam burst and flooded the Ok Tedi river with tailings of various things including cyanide. I don’t think that was a turning point – it was a case with some interesting legal aspects.
Q It’s an interesting case from an economics point of view because we’re talking about negative externalities, if you like, caused by the dumping of poisonous substances into the river. Wasn’t it one of the first cases to prove this was affecting the villagers?
A It was pretty early, and interestingly BHP, who’d run the mine, took a very unusual defence. They said “There can’t be a claim for economic loss because these people have a subsistence lifestyle. They don’t use money”. That got knocked out very fast. But the big exciting point in Ok Tedi was - the case had been puddling along for a while in the interlocutory stages, and the solicitor rang me one morning and said, “There’s a big problem. The PNG government has just passed a law which makes it a criminal offence for Ok Tedi natives to sue BHP for the destruction of the Ok Tedi and Fly rivers.” It gave them 30 days to get out, in which case they wouldn’t be guilty of an offence and they also made it a criminal offence for lawyers to act for them. With no get-out clause. So we were all guilty of a criminal offence by acting for the Plaintiffs. The solicitors very diligently managed to find a Word document which was a draft, word for word, of the legislation that ultimately passed, and it had on it the word processing footer of BHP’s Melbourne solicitors. So we brought contempt proceedings against BHP. That ran for a week because they stood their ground and made us prove everything. That was pretty exciting.
Q Another high profile case, which is 20 years ago, is the MUA (Maritime Union of Australia) case.
A Oh, the MUA case – that was an exciting case.
Q That was. Before we go into the details of the case, did the ABC Television program "Bastard Boys" accurately characterise what happened?
A Pretty much. It’s a long time since I’ve seen it. In the first episode, they concentrated quite a lot on Josh Bornstein’s emerging romance, about which I know nothing, but the strange thing was that the second episode was drawn substantially from transcripts in the court hearings. It was an out-of-body experience for me, because I recognised my own voice, the way I put words together. It was very weird to see someone else, on screen, being me. I didn’t have that impression in the first episode where Rhys Muldoon who played me was there. But in the second episode when he was using my words - it felt very odd. I thought it was pretty accurate.
Q I can well imagine. I recall it, of course, because it was all about Patricks (Stevedores) wanting to bring in a non-unionised workforce. Former ACTU secretary Greg Combet described it as Australia’s biggest industrial dispute in the post-second world war period. It was a very intensive brief.
A It was pretty intense, especially given that I knew nothing about industrial law. It was interesting because we first went into the Federal Court on the 7th or 8th of April: the Tuesday before Good Friday. There was a break for Easter, then we resumed and then we got a judgment. They appealed that to the Full Court of the Federal Court the next day and then we won that. Then they sought Special Leave to appeal to the High Court. We got judgment from the High Court after a four day special leave application, sitting seven judges. We got judgment from the High Court on the 3rd of May, less than a month after we’d gone into the Federal Court. Which was unbelievably fast.
A Really, it was just a rocket – it was fantastic.
Q Was that when you started to change your view about politicians? A lot of it then was about what the Howard Government had brought in (in terms of workplace legislation).
A I must say until the MUA case, I’d thought politicians were just dull people doing a boring job, but necessary. I mean, I understand about the supremacy of Parliament and all that. It had never occurred to me that they would act dishonestly. It was a turning point in the sense I began to think I wouldn’t want to trust politicians too much.
Q Though the Tampa case a couple of years later, which you were highly involved in, was to probably catalyse your feelings even further. Did it lead to your views about the erosion of values in Australia?
A Well, sort of indirectly. Tampa was interesting. I got briefed in it by a bloke who had previously briefed me on behalf of Carlos Cabal, the fugitive Mexican banker. When the Tampa standoff started, he devised a very clever case theory and asked me if I would take the case. I said “Oh yes”. Not because I knew anything about refugee law, which I didn’t, or maritime law, which I didn’t, but because I feel the heat. Here we had 400 people on the steel deck of a ship in the tropical sun, and I thought, “That must be miserable – we can’t let that happen”. It never occurred to me that it would blow up the way that it did.
Q What was the (case) theory that you alluded to a moment ago?
A I can’t remember!
Q It sounded intriguing.
A It was based on section 189 of the Migration Act, which said in substance that if an officer thinks that a person who is a non-citizen is in the migration zone and is trying to enter Australia, then they must be taken into detention and remain in detention until etc. Now, they were in the migration zone, it was pretty obvious that they were trying to enter Australia at Christmas Island and so his theory was, they should be brought ashore and detained. That argument succeeded at first instance. Interestingly, the judgment of Justice North in that case was handed down in Melbourne at 2.15 in the afternoon of September 11 2001. Eight hours later, the attack on America happened, and everything changed. Later that week, the case went to the full Federal Court on appeal, and on appeal, the Commonwealth won – 2:1, which was disappointing.
But the Tampa case was interesting. It had consequences for the balance of my career. My understanding of economics was useful. Obviously I was appearing pro bono and what you discover is that when the price of a thing falls to zero, demand goes vertical. So I found myself being asked to do more and more refugee cases, pro bono. That was fine. I could have walked away from the whole thing, but Kate was very offended by what Australia had done. She said, “This is not the way Australia is, Australians are hospitable, most Australian houses have a spare room. We should set up Spare Rooms for Refugees, offering free accommodation for refugees”. That is the way artists think.
So, she kept me at it and kept me at it. In May the following year, I got a phone call one Sunday night from Kon Karapanagiotidis who, in the middle of 2001, had set up the ASRC (Asylum Seeker Resource Centre), which does a really wonderful job. Kon had been looking after the refugee claim of a family from Iran – a mother, father and two daughters. After a year or so in Woomera, they were all in a pretty bad way but especially the 11 year-old girl.
Q Is this the girl that tried to hang herself?
A Yes. They’d moved the family to Maribyrnong so she could get the daily psychiatric help she needed but after a few weeks in Maribyrnong, nobody had come to see her. While her parents and younger sister were off having dinner – she tried to hang herself with a bed sheet. She was taken to hospital with her mother and two ACM guards, so as a matter of legal analysis, they were in immigration detention. Kon went to the hospital at about half past nine that night and said to the guards he just wanted to speak to the mother to see if there was anything he could do to help. They said “no, you can’t see her because lawyers’ visiting hours in immigration detention are 9 – 5”. They sent him away. He then rang me at home at 10 o’clock that night. I will never get over how offended I was that we could behave like that: we mistreat a child until she tries to kill herself and then we would turn away someone who’s trying to offer simple help.
Q You’ve written about visiting places like Baxter – you’ve described, and it’s horrible to read, how people who are there physically but they are shredded inside. They have no sense any longer of where they are or who they are, almost.
Q It’s really fuelled a lot of your writing. I want to ask you with reference to a phrase I’ve heard over the years: “when there is no remedy, there’s no rights”. In the context of the work you’ve done for refugees, do you think about how there can be a remedy? Because if anything, since that time, things have got no better. It’s more punitive.
A It’s more punitive. Yes, I try to think about remedies, but unfortunately – given our constitutional framework – there’s very limited scope for remedies.
Q Which is why you’ve talked about the need for a Bill of Rights?
A Partly. I think governments would work their way around a Bill of Rights. They ostensibly assess all new legislation against a statement of rights and of course, if we get a statutory bill of rights at federal level, there’s nothing to stop them from sidestepping that. Only a constitutional bill of rights would prevent it from happening. And we will not see a constitutional bill of rights in this country in my lifetime – that’s for sure.
Q Yes, and given our history of voting “no” at referendum –
A People don’t understand why human rights are important because in Australia, people’s human rights are never at risk. Why would you go to the trouble of changing the constitution for the benefit of Muslims, boat people…that’s the way people think, unfortunately.
Q I interviewed a retired judge who said that he didn’t see the need for rights, because our system of common law over the years that we have is sufficient to protect what he described as “human liberties”, rather than rights. What do you make of that argument?
A Well, I think it’s nonsense, because the common law can be and is overridden by the laws passed by Parliament. If the Parliament decides it wants to be vicious in relation to one group, it can be. One of the things that really alarms me at the moment about what’s going on with Peter Dutton –
Q Who’s in the news as we speak.
A Who’s in the news as we speak - the theory is he’s going to make a push to be PM. Peter Dutton on the 23rd of June this year was told that bringing a particular person or group of people from Manus to Australia for medical treatment would be the compassionate thing to do. And he said, people need to understand that years of hard work could be undone by a single act of compassion. Even five years ago, I wouldn’t have believed that a senior parliamentarian could argue against compassion. The fact is, that in any system, if parliamentarians are willing to trash the rights of any group of innocent human beings, then no innocent human beings are safe, you know?
Q It’s a slippery slope.
A Oh, a very dangerous slippery slope. You’ve just got a piece of legislation which says, until 19th July 2013, anyone who came to Australia by boat must be put in detention and remain in detention until they get a visa, or until they’re removed from the country. After 19 July 2013, they will get shunted off to Nauru or Manus, where most of them have been there now for five years, having committed no offence whatever. They’re dying, killing themselves. We bring applications in the Federal Court to bring children who are trying to kill themselves – we bring those applications in the Federal Court to have those people brought to Australia for the medical treatment which the Nauru system cannot offer. And Peter Dutton briefs people to go along and say no, you shouldn’t do it. It’s just breathtaking.
But there’s a very interesting English case. It was a test of some legislation, which I think followed the bombing attack in London. It said that if a person was a suspected terrorist (not convicted, but suspected) and if they were a refugee so they couldn’t be removed from the country, then they could be held in detention for up to 12 months to “preserve the life of the nation”. “Preserve the life of the nation” is the get-out clause in their Human Rights Act, which mirrors in other respects, the European Charter of Human Rights, which is a necessary condition of being a member of the EU. The question went to the House of Lords: is this valid legislation? 8 to 1, they said No. Lord Hoffman finished his speech by saying “the life of the nation is less threatened by terrorism than by laws like these”. Now, there you have people suspected of being terrorists, who would be locked up for 12 months. We’ve got innocent people not suspected of anything at all, locked up for five years. In fact, there’s a case I’m involved in at the moment – a bloke who’s been locked up in Christmas Island for eight years. Eight years. He’s stateless, they can’t send him anywhere, he hasn’t got a refugee claim and they’ve got no coherent plans about what to do with him. So, he’s just locked up. As far as they’re concerned, he can be locked up for life.
Q A little like David Hicks a number of years ago – different situation of course.
A Different situation, but a good analogy because what happened with Hicks, I think, is a lot of Australians thought, “Look, he’s a bit of a dickhead, he may have done something wrong but whatever, five years is about enough. Now it’s time to let him go”. And that’s when the policy over here changed. I’m beginning to think – and maybe I’m too optimistic – but I think we may be at a similar turning point like that with the treatment of refugees. I think a lot of people in the community are now thinking, “These people have been locked up, mistreated, they’re killing themselves. Maybe it’s about long enough. Maybe we should stop”.
Q It makes me wonder – you’ve written extensively about the importance of a fair go and how it seems to have disappeared over the years. In reading that, I wondered - what about the right to a fair hearing? Do you think that’s been in effect what’s eroded in all this?
A No. I have great confidence in our court system. Even when there are judgments that I don’t like or agree with, I still think our judges are diligent and honest – they understand the idea of a fair hearing. But when people are simply locked up because they’ve come to Australia seeking asylum, they don’t get a hearing at all.
Q That’s what I was thinking. Yes.
A They just get locked up. But you see, since the trial judgment on Tampa on the 11th September 2001, John Howard started calling boat people “illegal” and pushing them away was “border protection”. I reckon a lot of Australians now think “They’re criminals and we’re being protected from them”. It would make sense if it was true, but it’s not true. A thing that really, really offends me is that we’ve got parliamentarians who are willing to lie to the public, because lies win votes.
Q You’ve done your best to present as many of the counter-arguments publicly as possible – you were president of Liberty Victoria and would have made the most of that time. You also made, I noticed, a documentary, “Border Politics”.
A Well, I didn’t make it, some film-makers made it.
Q You featured in it.
A I should explain, I have no financial stake in that film at all. Maybe I’m overly sensitive – I get attacked on social media too much – but I‘ve never received any money for anything to do with refugees. And I don’t have a financial stake in “Border Politics”.
Q Well, I wasn’t going to ask about your receiving money – I was going to ask: do you feel it achieved some impact?
A People tell me that it has. Personally, I’m not convinced. But I think I’m not wasting my time…. I was greatly taken by something that Arundhati Roy wrote, when she said that “a thing once seen cannot be unseen”. I completely agree with that. And she said, “if you’ve seen a great moral wrong, to remain silent is as much a political act as to speak against it”. So, for the very first time in my life, I became political because I had seen something I couldn’t unsee – namely that little kid trying to hang herself. Do you know, when she tried to hang herself, she spent 12 months in the child and adolescent mental health unit at the Austin Hospital until she was assessed as well enough to go back into detention? And they put her back in detention.
Q The terrible thing, too, is that this is a bipartisan problem because it was Labor that introduced mandatory detention.
A Yes, though I have spoken to people who were part of the Keating government and who never imagined the detention system would work like that. Whether they’re honest is hard to know. I think Labor’s great fault is that, while they’ve never called boat people “illegal”, they’ve never contradicted the Coalition calling boat people “illegal”. I think that they should have. If they had, then there would have been a real parliamentary debate about “what are we doing to these people, that lot call them illegal, this lot says they haven’t committed any offence - well, if they haven’t committed any offence, let’s not do this to them”. I don’t know what you have to do to persuade them to act decently.
Q The other case I’d like to ask you about – where I get a sense of your getting something of your own back – is the case of Trevorrow in 2006, where an indigenous man in Victoria sued the state of South Australia for damages on the basis of unlawful removal by the then Aboriginal Protection Board.
A He’d been born on the Coorong in South Australia, but he’d moved across to Victoria – I think he lived in Bairnsdale. Bruce (Trevorrow)’s case and the MUA case are the two that I value the most in my career. Bruce was born at One Mile Camp, Meningie on the Coorong in November 1956. I remember (Christmas) 1956. I was just a kid in short pants, but I remember it pretty clearly! One Mile Camp was just a collection of humpies, one mile outside Meningie because in 1956, South Australia, it was illegal for Aborigines to live nearer than one mile to a place of white settlement, unless they had a permit. On Christmas Day the following year (1957) when he was 13 months old, he got very sick. Anyway, Bruce was taken to a hospital in Adelaide, diagnosed with gastroenteritis, treated properly. A week later he was better, and a week after that, he was given away to a white family who lived in suburban Adelaide. That didn’t play out very well. The Department actively prevented his mother from finding him –
Q And she was writing to them, wasn’t she?
A She wrote to the Department saying, “How’s my boy going and when can he come home?” They wrote back saying, “he’s doing quite well, but the doctors say he’s not well enough to come home yet”. They’d already given him away.
Anyway, when Bruce was about 9 or so and showing some personality problems, he was taken to the Child Guidance Clinic, which had recently been set up in Adelaide. Their founder, who was still alive, gave evidence to the trial, as I remember. He had notes he had taken at the time, which said back then, aged 9, Bruce “appeared to have no idea of who he was or where he belonged”. Up to the time of the trial, Bruce had had a number of low-level criminal offences and every time he committed a crime, he’d be sent off for psych assessment. All the psych assessments said he had no sense of who he is or where he belongs. Surprise, surprise. Eventually, he was found by the Supreme Court of South Australia to have been unlawfully taken, to have suffered as a consequence and he was awarded damages. He’s still the only Stolen Generation person to have been found to be unlawfully taken and to be awarded compensation.
Q Through your efforts.
A Well, through the efforts of the team.
Q Yes. I was interested though – in acting for him, you argued about the damage the lack of maternal contact did to him during those formative months of his life. Had you been reading about John Bowlby who wrote about maternal attachment –
A I had. I was already aware of Bowlby’s work. I only got into the case relatively late because my predecessors (in the matter) had been appointed to the bench. It was funny, because in the first directions hearing I went to, the trial judge, Tom Gray, who was a pretty formidable judge looked at me benignly and said “Oh, your predecessors in the brief have had interesting career moves”. I smiled at him and said, “Well, I’m not expecting a call from Mr Ruddock!” Because Ruddock was then the Attorney-General and had been Immigration Minister. Anyway, I was aware of Bowlby’s work. The state of South Australia took every point against us, including that (Bruce) hadn’t been harmed by it. Bowlby had done work on children removed from London during the Blitz. He concluded in a very, very famous report that between the ages of about 9 months and 5 years, if a child is removed from their primary carer, they will inevitably suffer harm and the only question is whether the harm they’re being spared from is greater or lesser than the harm that they’re going to suffer. Probably the only significant point in the decision, because the rest of the decision turned on the particular facts – the only really important point in the case was that Justice Gray held that Bowlby’s work was known to the state of South Australia, or should have been, and that it was something they should have relied on. A very important finding, and it’s kind of intuitively right. People understand by instinct. I remember in my research, the state of South Australia, the parliament of South Australia had been investigating the removal of Aboriginal children back around the turn of the 19th-20th century and parliamentarians on both sides said, “We all understand how damaging it is to take a child from their parents”. Instinct tells you that. So that was a very important case.
And I must say it was the Trevorrow case that made me think again about what has happened in this country with white settlement. In Melbourne, especially, whenever you go to a public event, the person in charge will always start off with an official acknowledgement of the traditional custodians of the land – “we acknowledge the elders of this land, past, present and emerging” (whatever that means) - and I think: Why don’t we also acknowledge that our ancestors took the land from them and caused great harm, and then doubled the harm by taking their children from them? We harmed them terribly and we haven’t any coherent ideas about what we’re going to do to fix the damage we caused. Aboriginal people are regarded by most Australians, I think, as no-hopers. Well, look around and take a lucky guess what the cause might be.
Interestingly, we didn’t get judgment in that case until August 2007. I remember thinking, “Gee, he’s taking a long time – he must be stitching us up”. So, I was thrilled when we got a good decision. Later that year, Kevin Rudd became PM for the first time, and he announced that the first act of the new government would be an apology to the Stolen Generations. He wanted some Aborigines in the public gallery. Bruce had two brothers, Tom and George Trevorrow, who were both Ngarrindjeri leaders – they’d never been taken from their parents and they’d become leaders of their community. Tom and George Trevorrow were both invited to be in the public gallery – Bruce wasn’t invited. So, we sent a little reminder saying, actually he’s the only guy to have been found to be a member of the Stolen Generation – so what about it? They hurried out an invitation to him and he got there, but he died on the 20th June that year, 2008. Just short of his 52nd birthday, because he was ruined.
Q Yes…. I understand it was argued by the Crown that some of his claim for damages – such as loss of spirituality – was “not compensable”, as they said, under the law. How did you refute that argument, because that’s very central to all that you’re speaking about here?
A The process of calculating damage was very difficult. The judge really struggled with it, I think. Because, standing back – who could say what life he might have led, but for the things that happened to him when he was 13 months old? Who can say what is the monetary value of things like loss of spirituality and so on? To be honest, I can’t remember what arguments I made about any of that stuff.
Q At the time of this interview’s recording, you’re going to be giving a lecture very soon to Monash University, on the collapse of public values. There’s been a lot happening for you over the years, you’ve been involved so many cases. You’re a Living National Treasure despite what the Howard Government might have felt about you. In 2004, you were made a Living National Treasure. I have two final questions: one to do with the collapse of public values as you see it, and two - about whether you’ve thought about forming your own political party?
A Absolutely not. I have no interest in politics. I’ll be 70 in the middle of next year and that’s far too old to be involved in a political party of any sort.
Q But you are a late developer, you said!
A That’s true.
Q This could be the time?
A Maybe. I don’t expect to live to older than 73. Not enough time for that. Before he died, I was working with Malcolm Fraser on the formation of a new party, which was going to be specifically for younger people, but guided by the grey hairs. No. I have no interest in being in politics at all. Not in my own party, not in anyone else’s party – not at all. I think our political system doesn’t work very well, to be honest.
Q What about the collapse of public values? Is it a permanent collapse, as you see it?
A I – is it permanent? It depends. I mean, we’ve got Donald Trump in charge of America –
Q Which you didn’t foresee some years ago – no-one did.
A No – well, who would?
Q It was a black swan event.
A We did have Tony Abbott as PM in Australia – even now, it’s hard to imagine that… the possibility of Peter Dutton becoming Prime Minister. These are not good signs, but whether it’s unprecedented, I have no idea. I was not paying attention before that – I’ve not studied politics. I really hope it’s not permanent. I have great confidence in Australians generally – I think we’re better than this. We can do a lot better than we’re doing at the moment. The fact that the Coalition can go about winning votes by lying about the mistreatment of innocent human beings – that worries me a lot. The fact that they dog-whistle about Muslim culture worries me a lot. Fraser Anning’s recent (maiden) speech provoked the right response from both major parties, but it’s interesting that Bob Katter clearly thought that there would be a political benefit in Fraser Anning speaking the way he did. Bob Katter came out and actively applauded –
Q He said something about “solid gold”.
A He said, “Solid gold…I one thousand percent agree with him”. Horrifying. I frankly think his reference to the “final solution” which was the headline point was absolutely appalling, and yet in a funny way, not as bad as the fact that he was arguing against the migration to Australia of anyone from other cultures – black Africans, Muslims…. they were all going to be excluded. Watching Bob Katter when he was interviewed about that, when it was put to him that his grandfather was born in Lebanon, he arked up and said “He was an Australian!” Well, yeah, durr – he became an Australian, that’s true. Lots and lots of Australians born in other countries have become Australians, so get over it. But if Fraser Anning has his way, no-one would be allowed to come to Australia unless they were from good Anglo-Celtic stock.
Q You mentioned in your book about the balance between authority and freedom being compromised if any of three conditions is satisfied: when effective political opposition is absent or so weak as to enable government to ignore electoral retribution; when in times of civil or war emergency, people cede to government greater than usual powers; and when the press, the media, is weak or compliant. Are all three conditions as you see it now happening in Australia?
A Not the second – we’re not at war. Even the Vietnam war wasn’t war in the sense I had in mind. If the country’s under attack as it was during the second world war, and as England unquestionably was – that’s the sort of case I was thinking of. But the first and third conditions are present. I mean, it’s really interesting to see the push to bounce (Malcolm) Turnbull and get (Peter) Dutton in is being run by News Ltd. News Ltd really advanced the case for Donald Trump.
Q Brought to you by Fox News, and as we know, it’s a former Australian behind that.
A That’s true. Kate and I were on pretty good terms with Dame Elisabeth Murdoch and we were invited to her 100th birthday lunch at Cruden Farm. I figured in advance that Rupert would probably be there and I thought, common courtesy says I have to have something nice to say to him when I’m introduced to him. It’s not an easy task, but then I thought back to the start of his career: he was the owner of the Adelaide Advertiser, it ran the campaign to save Max Stuart from the gallows. Although Rohan Rivett was the journalist, he couldn’t have done what he did without Murdoch’s backing.
Q Though wasn’t Murdoch flirting with communism (during the 1950s)? He was very briefly left-wing.
A Yes, well, in any event – when I was introduced to him, I said I wanted to compliment him on the work he did on the Max Stuart case. He looked at me as though he didn’t have the faintest idea of what I was talking about!
Q You’re joking.
A No, he really just went blank. Now I don’t know whether he remembered it or whether he’s rubbed it out of his mind, or perhaps he just didn’t want to engage in conversation with me!
Q He obviously knew who you were.
Q In conclusion, Julian, a few minutes ago I almost got a hint that you weren’t considering continuing to practise. Is that right? You never considered going on the bench, for example, in the past –?
A Heh, heh.
Q Or did you?
A I always thought going on the bench was the ultimate ending point of a barrister’s career. I always thought that would be a nice thing. Of course, it’s traditionally the sacrifice you make at the end of a prosperous career. By the time I started being approached to go on the bench, I’d already got involved in the refugee thing. I thought there are several ways of giving things back, and if I take a job on the bench, I’ll have to shut up. And I’m not going to. And now of course, I’m far too old to be appointed because they need 10 years out of you and the best they could get (from me) is six months.
Q But you have left a legacy – your preoccupation with justice has been very much a contributor, if you like, to our understanding of justice.
A I would like to think that’s true, but I can’t assess that.
Q So, what now for you? Just keep working for as long as you can?
A It’s very hard to know. Kate has the view that such authority as I might have in speaking publicly depends in part on the fact that I’m a practising advocate. I can understand that. On the other hand, I sometimes think that maybe it’s time to … give it away. We’ll see.
Q I would think you’d have plenty to occupy you – even if you decided to retire.
A I’ve got lots of other interests, yes, and I would like to spend more time pursuing those interests. On the other hand, I really want to do all I can, to try and fix up what I see as being a disfigurement of the Australian character.
Q Well, Julian Burnside, thank you very much for speaking with List G.
A Thank you.