Interview conducted by Juliette Brodsky
Q: Peter Hanks QC, thank you for agreeing to be interviewed for List G Barristers. I’d like to start with a little bit about your background and where you grew up.
A Ok, so I did my law degree in Sydney and I started in 1959. I was working full-time for the state government in their legal office, but the law school was in the centre of the city.
Q Yes, in Phillip Street.
A That’s right.
Q The building doesn’t exist anymore – it’s been pulled down.
A It was a very old building – one in Phillip Street and one in Elizabeth Street and they were joined together in some odd way. But that’s where I did my law degree, (and) then I went overseas to America to do postgraduate work. I came back to an academic job at the University of Sydney, found it really tedious –
A Very old-fashioned degree, very inflexible. I was offered a job at Monash, which was a new law school and that was very exciting. So, I came down here in ‘69.
Q Was Professor Louis Waller there, at Monash University?
A Yes, he was, and Enid Campbell who I’d known in Sydney, and lots of other people. So, I was at Monash then for twenty five years. I was approaching my 50th birthday and I thought “Do I really want to keep doing this?” Because it was very easy for me, teaching – not very challenging.
Q Not even with the most challenging of students?!
A No, they were all pretty good – I got on very well with students. I was a good teacher, I think, but I wanted to do something that would stretch me, and something that I could keep doing. In those days, you had to retire when you got to 65. I was looking down this barrel towards that age, and I thought if I go to the Bar, I can choose my own retirement age. So I came here at the age of 50 and I’ve loved it, ever since.
Q Well, of course, you came with a wealth of knowledge.
A About a particular area, yes.
Q Constitutional law.
A Yes, and administrative law as well. And lots of people who knew me, former students, I got quite a bit of work from them. I loved it.
Q Was there something in your nature that was itching for a little bit of the hands-on approach to the law, after having written about it so extensively in the areas that you mentioned?
A I don’t know about that – I’d never really had that urge. I’d had six years working in a solicitor’s office while I did the degree, and before I started my degree, so I knew a bit about the practical side.
Q Which solicitor was that?
A State Crown Solicitor.
Q So, what years were you there?
A I started there in ’58. Immediately after leaving school. I couldn’t start my law degree, I was too young.
Q Ah, so tell me – where did you go to school and what age did you finish school?
A I went to Sydney (Boys) High.
Q A selective school.
Q And you finished at 15 or something, did you?
A No, I was 16, but the law school said you had to be 17 on the first day of term, and I missed out by three weeks. So, I had to wait another year.
Q So what did you do in that year?
A I worked for the State Crown Solicitor – a fresh-faced 16-17 year old, handling my own files and things. Nothing terribly exciting, but it was good.
Q Was it a broad-ranging area that you got to work in?
A No, it was all motor vehicle accidents for the state government insurance office.
Q Did they call it “crash and bash” up there? I know they did down here.
A Yes, they did. It was all basically personal injury, in the District Court.
Q Did that start any nascent interest in injury? You were much later to work on Comcare.
A Not that I’m aware of, because it was never part of my academic interest after that. I quite enjoyed practice, but I enjoyed more being an academic. I thought it was a luxury to be able to work on things that interested me and not my clients.
Q Can I ask you a bit about Sydney University law school – who was lecturing there in those days?
A When I was a student? Well, there was Pat Lane, Julius Stone, Tony Blackshield, a fellow called Ilmar Tamello. A Polish fellow who came out for a few years called Alexandrowicz (who) taught a course on international organisations. David Benjafield, Bill Morison, Frank Hutley, Tony Mason, Ken Jacobs. All those people went on to the (NSW) Court of Appeal or the High Court.
Q Professor Julius Stone wrote a book on jurisprudence -
A “The Province and Function of Law”.
Q I was told it was a very complicated book that not many understood. Was that true?
A It was dense, but it was intelligible.
Q Was he an influence for you?
A He never taught me, but some of his disciples taught me, like Tony Blackshield. I don’t think Julius taught me. Ilmar Tamello – people like that who were disciples or even acolytes of Julius taught me. I’m trying to remember – he might have taught one third of the jurisprudence course.
Q He was Challis Professor of Jurisprudence, I understand.
A He was, and head of that department – a position that was effectively created for him after some reactionaries on the (University) senate blocked his appointment as dean back in the very early 50s.
Q Did that have to do with his interest in free-thinking?
A No, it had to do with the fact that he was a Jew.
Q A lot of anti-Semitism then. What about constitutional law and administrative law – who, if anyone then, influenced you?
A Well, administrative law didn’t exist as a subject, but Pat Lane taught constitutional law. I think he probably did influence me. I always found it fascinating, although Pat was a bit of an eccentric.
Q In what way?
A You could describe him as intensely theoretical, not very practical – that’s my view of him. He had a remarkable memory which he liked to show off in class. He could tell you what part of a page a particular passage came from and from what volume in the Commonwealth Law Reports. He was the best exposure I had, the only exposure I had, to constitutional law. The person who really influenced me was someone who didn’t teach at Sydney (University) but who taught at ANU, though in fact he didn’t really teach, was Geoffrey Sawer.
Q He wrote “Federation under Strain”.
Q An interesting man - tell me about him.
A A complete humanist, I would say – a lovely man with wide-ranging cultural interests. Tremendously supportive and friendly to everyone who came in contact with him. A friend of mine, Michael Coper who in fact was one of my students at Sydney, wrote a short sketch on Geoffrey Sawer that was published in the Federal Law Review – it was an amazingly acute study of him.
Q Geoffrey Sawer was very influential for the late (former Governor of Victoria) Richard McGarvie, who felt (Sawer’s) views were important for understanding the way our constitution worked, and in particular the notion of conventions. Would you agree?
A I think Geoff understood the intersection between law and politics so well. He wrote a two volume study called “Australian federal politics and law”, published by Melbourne University Press. It started in 1901 and I think the first volume went to 1929 and the next volume went to 1949 and then it stopped, which is perhaps unfortunate. But it does explore that intersection between politics and law which is really powerful, I think.
Q You said before he was a very strong influence on you. What were the elements of his thinking that had some bearing on what you were later to write – you yourself being a prolific author?
A I think the notion that constitutional law operates in a political setting. In order to understand it – constitutional law – you need to understand contemporary politics. You need to understand what was happening in politics at the time that the (High) Court was dealing with things like bank nationalisation, for example. You have to understand it didn’t come out of some abstract debate. Or the uniform tax cases. The first one in 1942 – you need to understand that this was the culmination of attempts by the central government to gather more revenue, at the height of the Second World War. That political – indeed geopolitical – setting is an important part of understanding what happened. Critically, the case was argued in the High Court, I think the day before the Battle of Midway, which in retrospect turned out to be the turning point of the Pacific War, but no-one knew that at the time. The pressure on Australia from what was seen to be the Japanese advance in the Pacific and the need to marshal Australia’s resources to meet what was seen to be at the time a strategic threat, was really powerful.
Q How acute do you think the awareness of the intersection between law and politics has been among judges, particularly in the High Court, over the years?
A I think they’re all aware of it, although some of the judges have not wanted to acknowledge it, overtly. From my conversations with judges, they are very aware of it.
Q Because I suppose depending on who you talk to, some say that you don’t necessarily take into account the context – you look at the words on the paper.
A I think that’s an illusion.
Q Now, that’s interesting. Tell me why.
A Well, it’s self-delusion.
Q I’ve heard some being quite fierce about that view.
A Words have no innate meaning – they are just scratches – they are like graffiti. They only have meaning because of context. To my mind, the real-world context is critical. You need to know what the context is, and the contest is, that the court is really being asked to resolve. It’s dressed up as debate about the meaning of these seven words or twenty-seven words. But that’s dressing. Underlying that is something really powerful.
Q I imagine you would have heard, Peter, over the years, something approaching disappointment over the way the Australia constitution is worded and framed. Our constitution was once described (by Justice Keane) as a “little brown bird” of a document, compared to the higher-falutin’ principles, for example, of the American constitution.
A Well, it was a document designed to achieve a particular objective, which was to bring together the potentially competing political interests of the six colonies – so that’s what it was designed to do. You would know that in the Convention Debates, there were occasional attempts by some of the more idealistic people there to put things into the constitution that went beyond that. So, you’ve got freedom of religion in section 116, but that’s an oddity.
But generally speaking, it was a much more practical, less ideologically-driven objective that they were seeking to achieve. But even that apparently limited objective has an acute public policy and political dimension. Dividing revenue between the states and the Commonwealth at one level looks like nuts-and-bolts practical stuff, but it very much sets the framework within which political power can be exercised – and is exercised. The conception was initially that the Commonwealth would rely on customs duties and excise duties for its revenue and nothing else. The states would continue to levy land tax and various other forms of tax, and a tiny amount of income tax that everyone imagined was feasible. The states would have continued to be substantially independent financially and fiscally, because they had major sources of revenue. The only revenue that the Commonwealth would have would be those special forms of tax on commodities around which tariff policy was debated – free trade and protectionism. These were big issues in the (18)90s: would Australia pursue free trade or protectionism? And there were radically different views in Victoria and New South Wales. Victoria was more protectionist and New South Wales was more free trade because Victoria had secondary industry which needed protection. New South Wales was more a rural economy and therefore more interested in free trade. The states from 1901 were seen as major players in public spending and that started to erode obviously with the First World War when the Commonwealth got into collecting income tax for the first time. It changed dramatically in the Second World War when the Commonwealth said, “We need the money”. They said, “give us the income tax – we’ll collect all of it, you’ll collect none” and did all that through legislation, and the High Court said “Yes, you can do that”.
Q And cases like, I imagine, Engineers helped pave the way for that ability of the Commonwealth.
A That was an obvious shift in the way the wind was blowing in 1920.
Q So, you’re painting a picture here of the context and the changing context throughout which our constitution has had to operate. I’m very interested, though, that despite all this, (the constitution) remained a very bare bones document. You said before “words are scratches”, yet I interviewed someone who said we would not be able to make law or at least interpret law unless we can go by the meaning of those words, and those words alone (in law) - not the context. There seems to be a split.
A I’m very skeptical about that. It just doesn’t happen. You can pick up a piece of paper and you can take the Macquarie Dictionary and say “those are the only sources I’ll look at – I won’t look at history. I won’t look how society is currently organised – I’ll ignore that”. That seems to me to be an impossibly narrow way to look at law, which is a human construct. It’s a means of social organisation. We’re not dealing with tablets of stone that are brought down from Mount Sinai; we’re dealing, as I say, with a human construct that’s been put together for a particular purpose. To ignore the fact that it’s a human construct and why it was put together and what it was meant to do and achieve, when you come to calculate how it should operate in practice, seems to me to be wilfully blind and dangerous.
Q Your book “Constitutional Law in Australia” has been reprinted many times. When did you first develop your understandings? Did they evolve during your years in academe or because of observing when we had the Dismissal which was a famous testing of the reserve powers and the like?
A That was a cataclysmic occasion in 1975, but my ideas had evolved before that, partly through working with Jack Fajgenbaum, with whom I wrote another book, back in 1972 and then working with Geoff Sawer from time to time. That was pretty influential.
Q I’d like to quote for you the late Colin Howard QC – this book (“Australia’s Constitution”) was written in 1978 – I wonder if he would change his views now. He said “I think that the influence of the High Court upon the working of the Constitution although ultimately of profound importance, tends to be exaggerated by lawyers when it comes to everyday life”. What do you make of that, because I don’t know that’s the case – the High Court has had tremendous influence in its interpretation of the constitution.
A Well, I do, too. Colin – he was a very interesting man. He was a criminal lawyer. I can remember, probably in 1967 or 68 while (I) was still in Sydney, Colin published a text on constitutional law – this criminal lawyer. Pat Lane said to me this was an amazingly good book. It was published by the Law Book Company… maybe it tells us here what else he wrote…. (LEAFING THROUGH BOOK)
Q You can see it’s a well-thumbed book.
A That’ll be it – “Australian Federal Constitutional Law”. It was a really good book: lucid, fairly technical but concise, clear.
Q He makes a point of saying that (clarity) was his intention.
A But I challenge the idea of the High Court’s reading of the constitution having no practical effect, if that’s what he’s saying – it can’t be right.
Q No, because we’ve since come to see huge ramifications of High Court decisions.
A There’s many strategic shifts in the way that government operates in Australia and many of them are the product of the judgments of the High Court. The Uniform Tax Case is the most acute example, but there are many others.
Q There was the particular case of Senator James Webster, just prior to the constitutional crisis in 1975 – you would know it well.
A Barwick’s judgment.
Q This judgment came back recently to haunt us again and was seen as a very narrow ruling.
A It was effectively overruled by the Full High Court in one of those many section 44 cases.
Q (Section 44v) was to do with pecuniary interests.
A That’s right – the fellow whose family trust owned a building in a shopping centre, which the Commonwealth rented, and the question was whether he had an indirect pecuniary interest in a contract with the Commonwealth. In the Webster case, he was a senator at a time when the Senate was quite narrowly divided between the government and the opposition, as was proved in October-November 1975. The question rose (I think the Senate actually referred this question to the High Court) whether Webster was disqualified because he was the principal shareholder in a hardware business that had a standing contract to supply screws and nails to a Commonwealth department. It came up in the High Court and Barwick said he’d deal with it by himself. He came down with a very narrow ruling, saying that (Webster) was only a shareholder and that the interest in the contract was between the company and the Commonwealth – ignoring the language of section 44 which talked about a direct or indirect pecuniary interest.
Q So that’s a classic example of black letter reasoning.
A It is, but the funny thing about black letter reasoning is that you’ve got a particular way of reading those words and you say that it’s “black letter reasoning”, and someone else has got another way of reading them, and it’s also “black letter”. Because the words don’t have a single meaning.
Q No, that’s right.
A That case was a very good illustration of that, because the language in that paragraph of section 44 referred to a direct or indirect pecuniary interest – and that is certainly capable, as a matter of ordinary language, of referring to the interest that a shareholder has in the profitability of the company in which the shareholder holds the shares. So, to appeal to literalism or black letter reasoning seems to me not to go very far.
Q Dick McGarvie felt there was a disappearing of conventions in the interpretation of our constitution. At the height of recent debate over our constitution (in 1998), there was a big split in the discussion over the Head of State powers. Some believed they should be codified – to have words that would pin down powers – whereas others like McGarvie felt they were best exercised through conventions, understandings, rather than codifying what behaviours were ok and what weren’t.
A There’s a degree, I think, to which you can codify some of these things, but you can’t hope to do it completely. It’s just not possible. The way humans interact is full of infinite variety. As soon as you set down twenty-seven rules about how they’re supposed to interact, they’ll find that those rules are inadequate – they don’t cover every situation or every circumstance. People will inevitably and plausibly claim that they need to step outside that strict framework from time to time in order to do their job or interact effectively. That’s how conventions evolved. Conventions are habits –
Q And they are understandings, I would have thought?
A They are habits of behavior that are rational and that have a rational justification. It’s conventional, for example, that the Governor General acts on the advice of the ministers. That’s a convention but it’s rational because ultimately the Governor General doesn’t have much choice but to do that. If the person holding that office didn’t accept advice from their ministers, the ministers could make government impossible. They could quit. That’s the sanction that they have – they’d resign and then who would control parliament to ensure that money was voted to allow the business of government to go on? We call it a convention but it’s a convention that has an extraordinarily powerful force behind it.
Q It has teeth.
A That’s true of very many, if not all conventions.
Q When I studied political science years ago, ours was a system described as a “Washminster” system. How much are we “Minster” and how much are we “Wash” these days?
A I think we’re still more “Minster”. Politically, power still does reside in the parliament. There’s a continuing tension between the parliament and the executive, but the executive is formed out of the party that controls the House of Representatives. The tension is there in the sense that there are levers that the executive can pull to manipulate what goes on inside parliament. That’s very true of the Westminster system as well, but certainly not true of what happens in Washington.
Q You must be watching that with great interest.
A In America, you’ve got two quite distinct sources of political power. This is what the Americans were looking for: they wanted to strictly separate power between the executive and legislature so there could be constant checks and balances. Sometimes you couldn’t achieve anything, but that was a deliberate part of the design. Here, because we’re more heirs of the Westminster system, the executive government is given quite considerable power over the parliament, but it works in both directions and the ultimate power lies with the House to get rid of the government. That would rarely happen, but it’s there.
Q When you came to the Bar, you said you started at a later age. Normally barristers start as fresh young things. How was it for you starting later – what was it like?
A I had no idea what to expect. I thought I’d have to do a bit of the ordinary run-of-the-mill stuff – in fact my first brief was in the Frankston Magistrates Court. My second brief was in the High Court as junior to David Jackson. I thought “that’s good - maybe that’s where my career will be”, but I didn’t get another High Court brief for six years.
Q What was the matter that you appeared in?
A A case called Precision Data v Wills – it was a chapter 3 type case – a challenge to the work of the takeovers panel.
Q Were you consciously hoping to get as wide a practice in as many areas as possible?
A No, I didn’t want to do trusts or commercial law or crime or family law – I didn’t want to do that. I wanted to do what I liked – public law. I’ve been very lucky – it’s effectively all I’ve ever done. There’s a massive amount of work around it, a lot of variety. I’ve done a lot of work for the Tax Office, the Victoria Police, the federal environment minister, the department of social security – and cases against all those people.
Q Would you say public law is an area that’s really expanded in recent years?
A I do. Very much.
Q Did it exist at all in the 60s or 70s as such?
A In the 60s, not really. The courts were obviously doing work - what I call judicial reviews of decisions made by ministers, but it wasn’t actively taught at the universities. It was really somewhat under-developed in a practical sense as well, until a lot of reforms that occurred during the 70s. So, the creation of the AAT, the ADJR Act – those were significant reforms. Freedom of information – all of these are reforms from the 70s and they’ve expanded the public law armoury dramatically.
Q Do you see any people in particular who were responsible for spearheading that kind of work?
A Yes, there were. Interestingly, John Kerr wrote a report for the government before he became Governor General, which was influential.
Q I was told that Sir John Kerr had a very great interest in administrative law, which is not a well-appreciated side of him.
A He worked in industrial law and anyone who works in industrial law would have developed the skill of going off to the original jurisdiction of the High Court to get prohibition to stop the Arbitration Commission from doing something. That happened quite a bit.
Q So, Sir John Kerr had some role then, you say, in the evolution of public law in Australia?
A Absolutely. There’s a report called the Kerr Report which urged the creation of the Administrative Appeals Tribunal, which was a pretty dramatic reform.
Q What are your own thoughts about Kerr?
A Too much of a judge, not enough of a political realist. He, I think, was used to the notion that if there was a crisis, someone should act decisively, like a judge, and resolve it. And then he found himself in the middle of the 1975 crisis over supply and he persuaded himself – I think, prodded by his friends – that he should solve it. And then he got Garfield Barwick to help him understand how he could do that. He ought to have stepped back, allowed politics to solve it, which it would have.
Q There’s a school of thought that he also relied on the thinking by Doc Evatt in his book “The King and His Dominion Governors” – do you know about that?
A No, I don’t know about any connection between them.
Q Are there any examples of public figures in your mind, Peter, that actually manage the balance well between being a jurist and being a politician?
A (Sir) Ninian Stephen would be a good example – another man of immense cultural insights. But he was never faced with the crisis that Kerr had to deal with, so he wasn’t tested. It’s hard to believe that he would have made that mistake.
Q Did you read with anyone when you came to the Bar?
A Yes, I did, but I didn’t have to. I was an academic, and there was a rule that if you told the Bar that you’d only ever practise “in the area of your expertise”, you didn’t have to do the readers’ course. But I thought I wasn’t sure of what my area of expertise was, so I did the readers’ course and I read with James Judd who later became a Supreme Court judge.
Q Did you pick up any special advice from James?
A “If you’re ever doing a case against Ron Merkel, don’t talk to him.”
A Because he’ll talk you into settling it in his client’s favour!
A Ron is very, very persuasive. I’ve told Ron that a few times when I’ve been opposed to him – “James told me never to talk to you, Ron”.
Q What’s your own style as an advocate – how would you describe your style?
A Not flamboyant. I hope – reasonably precise. The sort of work I do is mainly talking to judges; it’s not cross-examining people. It’s not dealing with masses of fact, generally, although occasionally I do cases like that, but for the most part I do appeals - sometimes before a single judge, but mostly three or five judges. Almost always, the work I do involves analysis of legislation, so one has to be pretty systematic about that. Hopefully clear. My style might be characterised as dry.
Q But necessary – we’re talking about the infrastructure of public policy in essence.
A Yes, that’s right.
Q How did you come by List G – when you started at the Bar, was List G your first clerk?
A When I decided to come to the Bar, List G did not exist. I was having a conversation with Chris Maxwell, a friend, and I said “I’m thinking of coming to the Bar next year”. He said, “We’re setting up a new list with Ron Castan’s secretary.” “Great,” I said. “I’ll be in that”. I knew and admired Ron Castan immensely. He was a superb person, very smart, great understanding of politics. So that’s how it happened. List G initially was sitting on the first floor of Douglas Menzies Chambers over on the corner of Little Bourke and William Street - I can remember going into the office there and talking to people about cases I might be doing that day – and then the List came over here to Owen Dixon West.
Q And it’s a list that’s built a very particular profile in areas of law which encompass yours.
A Yes, public law is one of its strengths, along with commercial law.
Q It’s interesting what you said about the emergence of public law. Now you can’t imagine public life without it – and yet, as you say, it didn’t really exist in the past. It comes back to what you said before about context. Is it fairly new, with regard to the High Court, to consider all decisions in terms of “words, context and purpose”? Is that a recent innovation?
A Well, this is an approach to reading statutes. I don’t think it’s modern – I think it’s been articulated more clearly but I think that approach to understanding what this section or these sets of sections mean and how they interact with each other – that’s critical. I think it’s always been driven by “let’s understand what the purpose of the legislation is”. It’s not operating in a vacuum – it’s designed to regulate a particular type of conduct, or to achieve an objective that’s important. I don’t think it’s just modern.
Q Staying with our theme of words, quite a number of years back, you published an article on Aboriginal policy. In the years since you published that article –
A How many years would that be?!
Q Thirty years – you highlighted a number of very important themes that continue to resonate even now. Last year, the Reconciliation Council released a report asking for recognition of indigenous peoples in the constitution, and then-prime Minister Malcolm Turnbull repudiated it, saying it wasn’t consistent with the values of a majority of Australians in the majority of states. Indigenous people like Pat Dodson described this as a “kick in the guts”. In view of the article that you wrote all those years ago, would words in the constitution that acknowledge indigenous peoples be what’s really called for now? There’s that school of thought and then there’s others who feel that words won’t make a material difference to the situation for indigenous peoples anyway.
A My view is that acknowledgement (in the constitution) is correcting a lie: Australia is built on a lie. It’s a fundamental part of what we need to do but it can never be the end – it would be empty if that was all it was. I do think it’s essential that the indigenous people be given some degree of political power. That’s very challenging – you can see how that would be presented by mischievous people as undermining our political institutions, not accepting that, like all political institutions, the new one would function. There’d be compromises. If we gave indigenous people a means of pulling levers that produced things – in other words, gave them power – that would be a powerful way of correcting the lie on which Australia is based.
Q Could we perhaps follow the example of what was done in South Africa? There doesn’t seem to be much appetite (here) for seeing what other countries have done very successfully.
A I’m sure that’s right. If we look at our own developments and land rights is a very good example – with the Mabo case, the Court said we’ll give indigenous people power over land, which is a huge economic resource. We’ve worked that through – the Native Title Act has developed ways in which to operationalise that principle. Now there are indigenous peoples throughout Australia that own their own land. The land has come back to them. That’s a source of power for them and the rest of us deal with that. If you’re a big mineral company and you want to rip some minerals out of the ground, you have to negotiate with the owners of the land. This leads to an agreement, the agreement is honoured and we get on with it. I can’t imagine why it will be any different if we gave indigenous peoples political power.
Q But it would come down to acknowledging, as you say, that lie and that’s something that (some) people stick at, don’t they?
A Well, there was huge opposition to land rights. There was huge criticism of the Mabo judgment.
Q Which Ron Castan was instrumental in arguing so successfully.
A Absolutely. It’s Ron’s case. Ron did it with Bryan Keon-Cohen, but it was Ron’s case really. He paid for it – he put his money into it. He didn’t just do it pro bono – he paid for the research assistants and the other people who worked on it.
Q That’s an example of a conviction lawyer.
A Oh, absolutely.
Q Would you see yourself as a conviction barrister?
A Not so much. I really love doing cases for people who aren’t government and doing cases for nothing, but I don’t do all that many of them. But you know, I’ve got convictions.
Q Let’s talk briefly about Comcare. Did you feel you got to exercise some of those convictions and understandings in the review you did? There was a lot of (media) attention paid at the time – 2013 – when you handed down your review of Comcare and made a number of recommendations.
A Some of those have been implemented. In fact, I did that review for Bill Shorten. Bill is a former student.
Q His mother was at the Bar.
A Ann Shorten, yes. His mother won the university Supreme Court prize at Monash. Very bright woman, but she did law after him. But yes, there’s been some changes to the SRC Act, as it’s called. One of the funny things about doing that report – since I did it, I’ve been doing more work in the courts about the Act and I keep finding things that I completely missed.
Q Like what?
A Problems with the drafting of the Act from the beginning, throwing up very difficult conundrums.
Q Did you provide an example of how you felt it should have been drafted?
A What we did was to look at a number of themes and to recommend how particular parts of the Act be changed. But we did it all within a limited period of time and I keep discovering bits we didn’t look at.
Q Mind you, it seems to be one of those areas where the more you look for things, the more they keep coming anyway. It might never have been the kind of Act you can tie up with a pink bow.
A It’s one of the most immensely contested, complex areas of legal work. The idea is essentially to prevent workplace injuries, although the Act doesn’t actually pay much attention to that – it’s more the Occupational, Health and Safety Act that does that – but to deal with the immediate consequences of injury in a way that doesn’t bankrupt the fund. There’s this huge financial tension. Running the fund isn’t like a sieve; but (it’s) using the money in the fund in a practical way to help people recover from their injuries.
Q The most difficult (injuries) to ascertain, I know, are psychological or perceived psychological detriment.
A Well, they’re certainly the most expensive areas for the fund. That particular Act focuses very much on white collar workers. It was originally designed for people who work in the public service so they’re white collar, by and large. There were a few people out digging ditches for the Post Office, but the majority were desk workers. As it’s evolved, psychological injury has been the most common form of claim and they’ve proved to be the most difficult injury in terms of recovery.
Q Did you feel you came up with a way of gauging the extent of psychological injury?
A We can only assess injury, I think, through some form of medical supervision or intervention, but I don’t think you have an objective standard. You have to take the advice of experts. Now, the difficulty with that as we all know is that some experts become expert at assisting people, while others become expert at resisting people. And it turns into a contest.
Q So, where are things at now with Comcare? Bill Shorten of course could be prime minister by May.
A I imagine he will be – as far as one can predict anything
Q (Comcare) would largely have had bipartisan support.
A Largely, but some of the things I recommended weren’t popular with employers and some weren’t popular with unions. I had the difficult task of walking down the middle, looking for compromises that would have a practical implementation. What we call the Comcare scheme is a bit of a mis-description, because it’s drawn in a lot of employers who do not have any connection with the public service. Linfox, Optus and the National Australia Bank – just to take those three examples – they have a very big presence. They are self-insurers, but they operate under that legislation and it has great advantages for them. Previously they would have had to operate under seven or eight different compensation schemes around Australia, and now they’ve got a single one. So, there’s been that transformation. But still, all workers’ compensation cases are contests between the interests of workers and the interests of insurers.
Q Are you still working on that area? Have you continued to provide recommendations along those lines?
A Yes, I’m waiting for the Full Court to hand down judgment in a case I argued in November, in Brisbane. I’ve got three more cases coming up, two of which I’m doing for Comcare and one of which I’m doing against them. I’ve got another case I’m waiting to come down that I argued in June, a case I did against Comcare. It’s still a significant part of what I do.
Q Yes, no rest for the wicked. You spoke before about the advantages of coming to the Bar - are you envisaging staying here as long as you can?
Q That’s the beauty of being at the Bar – unlike being a judge, you can stay as long as you like. Do you see yourself doing arbitration work?
A No, I envisage myself doing this: giving advice and appearing in court occasionally.
Q Do you have any other aspirations while you’re here at the Bar?
A Just enjoy life. I go away pretty regularly. My partner and I bought an apartment in Rome seven years ago, and we go there three times a year.
Q Does it strike you as interesting that Andrew Inglis Clark, one of our constitution’s chief architects, was very influenced by an Italian revolutionary, Giuseppe Mazzini?
A Oh, Mazzini.
Q (Mazzini) was advocating for the unification of Italy and talking about a European parliament over a century before it happened. Can you imagine that - our constitution might have been influenced by what was happening in Italy.
A How interesting. Was Mazzini a Piedmontese? He was certainly northern Italian.
Q Could have been - I’m not sure exactly. Andrew Inglis Clark was a big fan – had a picture of him in every room of his house, I believe.
A He wouldn’t have been involved in the Resorgimento – I think he might have died by then. There were some pretty smart politicians from Piedmont who engineered the whole thing so that the House of Savoy could take over as kings of Italy. They manipulated the whole process and elbowed Garibaldi out of it.
Q No doubt. I was thinking of it because of the links between that and Federation. It seems like a long bow to draw – does that interest you as a writer on the constitution?
A Yes, I love history - I find European and Italian history fascinating.
Q Can I ask, in conclusion, the significance of the striking indigenous painting you have behind you?
A Well, it’s by a person called (Wakartu) Cory Surprise – I’ve got a few of hers.
Q Does that have a name or a meaning?
A No, no name. It is a drawing of country – it’s a map.
Q A map of Australia or a map of -?
A A map of the person’s country.
Q I see.
A I assume that what we’re looking at is tracks – it’s not a perfect representation. There’s another indigenous piece behind you – it’s by Stumpy Brown. That’s pretty stunning as well.
Q What’s that a representation of - do you know?
A They’re all views looking down at country, and therefore there’s an element of mapping about them, but neither you nor I can understand them.
Q I’m sure there’s something that can be drawn from all this, with regards to perhaps a future constitution for Australia.
A Well, I draw good humour. I love the colour.
Q It’s very vibrant.
A And this painting here - by another Sydney-based painter - is called “Papunya - Bird’s Eye View”. I can smell the dust.
Q Do you think in conclusion, Peter, that yours is a bird’s-eye view of our legal-political landscape? Would that be a fair way to summarise your life’s work?
A Some of the stuff I’ve done is from that perspective. But obviously when you work at the Bar as an advocate, that’s not a bird’s-eye view. It’s something really close-up, which can be frustrating because you don’t get to see the full picture. When you go to court for a particular client, your task is to get an answer to a very narrow question. Judgment is reserved – that’s the end of it. It’s very different from the sort of work involved in writing a book where you do have that much broader perspective and you do take a bird’s-eye view. I’m not sure what the proper metaphor for being an advocate is, but it’s not a bird’s-eye view.
Q No, it’s down in the entrails, perhaps.
A Yes. And you’ve got a very narrow perspective.
Q You’ve had the benefit, though, of being able to work in both.
A I have – I’ve been very lucky.
Q Well, Peter Hanks, thank you very much.
A Juliette, it’s been lovely to talk to you. Thanks.