Interview conducted by Juliette Brodsky
Q I’d like to start, Dr Jessup, with a quote from (Justice) Felix Frankfurter. He said the fundamental role of the advocate is “not to enlarge the intellectual horizon – his task is to seduce, to seize the mind for a predetermined end – not to explore paths to truth”. Now, I’m interested, to begin with, in your reaction to that because from what I’ve read of your career, in many ways you did a great deal to enlarge the intellectual horizon in your time as an advocate and as a judge.
A Well, in what you’ve just quoted, there’s a lot of truth but there’s also the risk of getting a false impression. The advocate shouldn’t be driven to explain things in a way which is misleading apropos the truth, or apropos history or apropos previous cases. On the other hand, the advocate under our system is under no obligation to make the other side’s case for them. Often that’s a tricky ethical divide between avoiding misleading the court in relation to something you have said, on the one hand, and feeling under an obligation to search the body of law to find the underlying truth which is adverse to you, on the other hand – which you don’t have to do. But as a judge, you do have to do that and that’s one of the differences between advocacy and adjudication. I know that one approach to judging is that you would say, well you just decide the case purely within the four corners of what is put before you. I should say that’s the foremost principle of judging but it is not the only one. Sometimes, doing that will lead to an obviously bad outcome and sometimes you simply have to say, “Well there are other things here that need to be looked at”.
Q Did you arrive at that soon after you became a judge, or had you long before reached that understanding, of the difference between advocacy and being a judge?
A It wasn’t something that gelled in my mind as such; I answered that in terms of your question and drawing upon my instinctive feeling about these things. But something which I felt when I was on the Court as a judge was that a lot of advocates would follow a set of tracks which were directly leading to the outcome which they wanted, and the opponent or opposing counsel would follow a corresponding but opposite set of tracks going in the other direction, and these tracks would never meet each other. It’s the judge’s task to resolve this because both sides can’t be right. You can’t have parallel tracks running in opposite directions in a case which has to have one correct outcome. It’s the judge’s job to work out why they’re not actually parallel; where they cross, who’s right and who’s wrong. I must say the advice I always give to young people at the Bar is, it’s easy to identify strong points, neat points, clever points that take you to your destination. But in a sense, that’s a cheap way of doing things because you don’t confront your demons. You must, in your own mind at least, work out what’s weak in your case – that is to say, where your tracks get interfered with by a proposition coming in from the side or from head-on. You’ve got to deal with that, or at least be prepared to deal with it.
Q It’s interesting – a judge I interviewed not long ago said sometimes a problem for young advocates is that they behave like “amateur truth-seekers” and try for all manner of possible, clever questions, etc. You’re saying it’s an economical, and particularly a focused approach that ultimately helps what they’re doing.
A Well – yes, it’s a matter of experience in terms of how much you go into something which gets into the realm of universal truth. Often you read a judgment which is full - absolutely full - of erudition and background on how the law developed in a particular way and why it did, and usually you’re able to say “That’s the first case of this kind that the judge has actually done.” You’re actually going on his or her journey of exploration, which most people who work in this area of law would already know. Whereas a judge who is well on top of the subject would know exactly how much or how little to say to decide the case, without doing violence to years and years of jurisprudence, which you really don’t need to set out in every case. It’s a bit of a pity that so much of our first instance work these days at all levels is now over-finessed. It slows decision-making down and it sometimes just complicates things.
Q Why do you think it is over-finessed?
A Well, it’s not a question that can be easily answered, I’m afraid. It’s partly institutional, partly intellectual, it’s partly a thing in the profession and partly personal pride, I suppose. But we hear a lot about the pressures on the judiciary – I was reading in the paper about them only the other day. Well, I can’t say I would join in on any of those complaints, but then maybe I had an easy ride. Maybe the circumstances in which I was placed as a judge enabled me to do what I thought was necessary, but no more, and in some cases, it was an enormous lot. But generally speaking, no. Maybe in other courts – and I know nothing about family law – perhaps that’s where the issues lie.
Q So you’re referring to the proposed merger between the Federal Circuit Court and the Family Court?
A Not specifically, but maybe in that context. I just read somewhere in the paper that judges are saying they are over-burdened. It might have been something in the Victorian hierarchy, but where it comes from doesn’t matter. My only observation is that I think there is an increasing tendency to want to get it right. It was Hartog Berkeley –
Q He passed away a while ago.
A - yes, who was never a judge. I was in conversation with him once, with a couple of other people and a few glasses of wine, I should add, in case there’s any misunderstanding. He said, apropos the length of time people had to wait to get a judgment out (and I’m going back about fifteen-twenty years), he said judges at first instance aren’t employed to get it right, they are employed to make a decision. If it’s the wrong one, someone might want to take it on appeal. I don’t agree with that obviously, and no judge who actually has to do the job would be doing it properly if they didn’t aim to get it right. But coming back to your question, there is so much available now in the electronic space, so many decided cases, and cases at all levels. In the federal area where I did most of my work, all the Federal Circuit Court judgments are now available on Austlii and perhaps other places too. The Federal Court itself – there’s a huge tendency, I think and not a very happy one - for judges to find a few words, half a line, a quarter of a paragraph, in someone else’s reasons and they think “Oh, that’s relevant here” – stick it in, discuss it - that sort of thing. Then people say, “we’ve got too much work to do” and “the judiciary’s under a great deal of pressure”. Maybe they wouldn’t be under so much pressure if they tried to simplify their task.
Q It’s interesting you say this because I know you had a great deal to do with the electronic file approach that was adopted in the Federal Court, and the digitisation of work there. You were a pioneer, I believe, in this. It seems to me you had an understanding early on of the potential for how things could be simplified – streamlined, as it were – the better to assist judges, but it may be for some judges that it hasn’t helped? Perhaps they find it distracting - there’s too much coming at them from a different way now. Do you think that might be a problem - maybe not for yourself and people who were early adopters?
A There’s so many different things I could say in response to that little spiel. The first is, no, I didn’t have anything to do with the introduction or development of the electronic court file, except at the level of the judges themselves. Now I can’t tell too many tales out of school – but the idea for the file, the design of the file, the origination of the file, the system itself – all of that was done within the registry of the Court under the supervision of the Chief Justice, who I think at the time was Pat Keane, but it might have even started earlier. The point was, it was really only when the ECF was about 80% ready to go, that the registry said, “Now we’ll put this before the judges – this is where we want to go”. Basically, it was an efficiency thing, a cost-saving thing, and I think it was a major factor in the Federal Court itself being able to keep much better within its budget than other courts that we read about. There was a judges’ sub-committee dealing with the ECF. I was on that committee and may have been the convenor of it for most of the time. It fell to me, mostly, at judges’ meetings, to advance the case in favour of going electronic.
As you might imagine, there were many reservations about this – justifiable reservations - which were all taken into account and led to improvements in what we had in the course of development. So that was my role. I certainly am not an electronic whiz or anything, but I have been using what I would call consumer electronic files (that is to say, ordinary word processing, spreadsheets and accounting software) over many years. If that makes me computer-literate, I suppose I plead guilty to that. Secondly, it’s a fact that at least half the judiciary, I would think, is reluctant to use electronic resources as their main way of working. I’ve got to be careful of how far I go in crossing this line of things that were really in-house at the time. I can say that it was a pretty big factor, in selling the electronic court file to the judges in the Federal Court, to be able to assure them that this wasn’t going to affect their work. This was only going to be an electronic file which replaces the old paper file, which is accessible to you if you needed it. It provided a platform which would make it much simpler to introduce electronic resource utilisation in court proceedings. For example, the statement of claim would not be on a piece of paper. Now if a judge wanted to print out the statement of claim, fine. If another judge didn’t want to and simply wanted to have an electronic resource on his or her laptop or iPad, they would swing it across, out of the file as an electronic artefact, and it would never see the inside of a printer. That’s obviously the way of the future, and you can see how by building a strong electronic platform at the administrative level, it gives you a base upon which to introduce things into actual court proceedings if the judge wants to. That’s what I would say about that.
Q Thank you for clarifying that. Listening to you just now, how long, do you think, have you been interested in the intersection between efficiency and effectiveness? I wonder, particularly in light of the fact that your first two degrees were in law and economics.
A No. Efficiency and effectiveness are not things that I’ve ever been interested in, as such – they almost go without saying. First of all, I wanted to do and practice law. The reason I did economics was because a couple of people whose opinions I respected at the time said, “You’ll find in the timeframe you’re going to be working that a law degree isn’t going to be enough.” Monash was offering a combined degree, which was one of the early innovations at the time. “You should go for a combined degree - do economics as well”, so that’s why I did it.
Q Who were those people who gave you that advice?
A Really my father.
Q What did your father do for a living?
A He was what was then called a personnel manager.
Q A predecessor to HR.
A Yes, exactly.
Q That’s interesting.
A So he had a lot of contact with people who worked in the conciliation and arbitration system, with awards, with unions and those sort of things. Through the conversation that he brought home, I developed an interest in this, and I directed such electives as I had available to me in my undergraduate degree towards that space.
Q So he really, in a sense, almost set you on your life’s course.
A Yes, I think he did.
Q Was there another person as well who was influential for you in that time?
A To choose what to enrol in?
A Oh well, no-one at school. I didn’t have any teachers that pushed me in that direction. In fact, quite the opposite.
Q Why, what did they say?
A It was implicit - the teachers really didn’t - I think we might have had one session of career guidance. The master discussed the results of my test with my parents and they told him that I intended to do law. He asked, was I sure about that? They said they thought I was, and he said, “Don’t close his mind to other things – has he thought about forestry?” Well, where he got forestry from, I have no idea. This of course was decades before forests as such became a subject of interest in their own right, which they are now. At the time, the suggestion I might do forestry almost became a family joke. I decided I wanted to do law for myself, although from my father’s observation, it was a very good way of earning a crust. He himself had never had any tertiary education, being a returned soldier with very little education before he went off to war. I think he was very anxious that I should get a good education at tertiary level.
Q You went to Malvern Grammar and then Scotch College. When you mentioned forestry before, I happened to be researching a former alumnus of Scotch College who went on to become headmaster of Knox Grammar School and then Wesley (College). Neil MacNeill was passionately concerned with setting up forestry schools in Victoria in the 1940s. He died suddenly at the age of 53, so I don’t know if that ambition was ever realised.
Q I don’t suppose that’s why that teacher was thinking in terms of forestry - it’s the nearest I can get to Scotch College and a forestry connection!
A I can assure you if this particular teacher were alive now, he would not in any way be approaching an environmentalist. He was concerned with using the land in the most productive way, regardless of what happened to be growing there.
Q With Monash University, I take it Dr Louis Waller was running the law school?
A No, he wasn’t the dean – it was David Derham. I went to Monash in the second year of the law school and Derham was the founding dean of that school. Louis Waller was there – my only contact with him was that he taught criminal law in what was normally the first year, but for me because I did a combined degree, and had to split my first year up into economics subjects and law subjects, I didn’t do crime until the third year. But that’s when I had something to do with Waller.
Q Were there lecturers who were particularly influential for you?
A Oh, Derham himself, undoubtedly. There was a subject which at Melbourne (University) was called Introduction to Legal Method. In the new Monash Law School, it was called The Legal System. It was basically a kind of a primer, I suppose, for the way the law works, especially the common law. Mostly people wouldn’t have got anything like that at school at all, unlike mathematics, languages, economics, geography, etc, that you might be learning at university, where you would know from school what they’re talking about. The actual mechanism of the law as a kind of working artefact within society was something that people would never have encountered, and so this first year subject was taught in all universities. Anyway, the way Derham taught that just blew me away. At the time I didn’t realise it, but it just floated my boat in every possible way. Without being aware of it at the time, I obviously found what I wanted to do. The idea of developing principles from decided cases and the taking of actual facts from cases and why they went that way rather than some other way – it would now be called “interactive”. They all did this. They taught by telling students what cases and subjects they’d be discussing next time, at the next lecture. Most of us didn’t bother to do the necessary reading, but some did.
Q Yourself included?
A I did it to some extent, but no, I was not good in that respect.
Q So, what kind of a student were you? I know you were eventually to share the Supreme Court prize with Mark Weinberg –
Q Justice Weinberg. What kind of a student were you?
A I don’t think I’m the best person to answer that. I was what would now be called a nerd.
Q It sounds a little harsh.
A Oh, no. In the later years, I was a hard worker and spent a lot of time in the library. In class, I wouldn’t say I was any different from most other people although probably I participated a bit more than some others.
Q I mentioned Mark Weinberg just before – were the two of you friendly or more rivals perhaps at that time?
A Neither actually. I think Mark started a year behind me. We ended up doing the final year at the same time, but because I did honours in economics, that was an additional year for me. So, what was my fourth year at Monash was an honours year in economics – I might have squeezed in one law subject as well. Honours in law was slightly different – it was something you did as an additional stream or subject really, as you went along, whereas honours in economics was an honours year. People in the economics faculty really didn’t want me to be doing any law at all in that year. I may have got away with one minor law elective. Anyway, that explained why I was at Monash for six years and Mark would have been there for five. Our classes never really overlapped.
Q So what impelled you, then, to eventually go to the London School of Economics to do your PhD?
A There’s two questions there: what caused me to do postgraduate studies and why the LSE? Well, having been beavering away for six years at Monash, it occurred to me that it would be nice to go overseas for a while and that if I could get a scholarship somewhere, it would pay for at least some of it. In the last couple of years at Monash, that caused me to be more conscientious about work, and I did get a scholarship. Why the LSE?
Q It was a leading school of economics at the time.
A Yes, well, that was one of the things, because I was going to do law, not economics, although it turned out to have a bit of crossover. In our industrial law class at Monash, there was a time when they brought a professor over from the LSE, a chap called Cyril Grunfeld, to give a class on something – I can’t remember what it was. I think afterwards we got a chance to meet him and shake his hand, etc. So, I thought at least that’s someone I’ll know. So, he supervised my PhD.
Q Ah. Now, your PhD, I believe, was on the operation of industrial relations law on trade unions in Britain and Australia, so you got the opportunity to do a comparative study.
Q Was it he who suggested the topic, or had you already formulated the idea for yourself, largely?
A Well, the title of it is not really very revealing. The kind of things that were starting to interest me, perhaps in my last year and then in my year of articles which came between, was the question of when industrial action – strikes and things – when they take place, and if the law says they shouldn’t have taken place, then the question is: who is to blame? Who do you sue? How is the union, for example, made liable vicariously – for want of a better word – for what was done on the shop floor? In 1972, which was my first year (at LSE), there was a major judgment by the House of Lords on this very question. It was a leading case and made under pressure at the time – it was in all the newspapers, there were big dock strikes, particularly in Liverpool. That got me interested in the subject. I thought, well if the union is not liable for it, is there anything else that’s liable? After all, a union is only an association of people, and in the UK at the time, (unions) weren’t incorporated. Maybe branches, maybe shop committees? In my thesis, I looked at all these different levels of groupings within the union and how the law comes to terms with where the responsibility should lie, for something that was done, which is either not lawful or civilly actionable.
Q What did you ultimately propose by way of answer to those questions?
A I didn’t really propose anything. No, no, it wasn’t a “here is the answer” type of thesis, sadly perhaps. I ended up having two supervisors: Cyril Grunfeld was the legal one and he suggested that I should have a second supervisor from the industrial relations faculty. So, a chap called Ben Roberts who was the professor of the faculty of industrial relations, which was outside the law department - he actually did have an influence on the non-legal dimension of the thesis, which turned out to be only one chapter (possibly two). He wanted me to go in that direction, so I did.
Q I wonder if you found or thought that solutions to such questions come from more an interdisciplinary approach, along the lines of what you were describing?
A No, that never occurred to me – I’m not suggesting it’s a bad idea. I wasn’t really sure this was a problem and solutions-type context at all– I just wanted to reveal the way the law has dealt with these things – I’m not sure that even today, there’s a “single problem” or a “single solution”. These days, the matter is dealt with legislatively, but in those days certainly in Australia and the UK, it wasn’t at all.
Q A little after your time there, things were to become very active on that level, with Mrs Thatcher only two or three years later.
A Of course when I was there, Ted Heath was prime minister and that was very active. In fact, I had the opportunity of going to a number of court cases in what was then the National Industrial Relations Court. Because I was based in London, and it was sitting in London, it was very convenient. The whole Heath thing was very much the Conservative Party’s first attempt to deal with what had been called “the British disease”. In a word, it was basically shop stewards doing what they liked and then when someone tries to hold the union accountable, the union says “we’re not responsible for this – these people are working people, they decide what they want to do, it’s not our job to keep them under our thumb”. It’s all very different now. I don’t know very much about Thatcher’s laws but I’m not sure that she had her greatest reforming impact at that level. That’s a subject for another discussion.
Q You mentioned articles before – you did articles with the late Hon. Stephen Alley. He was at the Australian Conciliation and Arbitration Commission, and a prominent industrial relations lawyer – was he influential for your thinking?
A He was a very good leader at the practice level – he wasn’t an intellectual man. I don’t mean that disparagingly. He was a hands-on operator, the best industrial solicitor on the employer side in the country. Everyone spoke warmly about him. He was enormously influential on the development of my understanding of how the practice of law operates, which is exactly what articles should be for.
Q You say he was warmly regarded - what were his talents?
A Alley’s talents? He was down to earth. He would never over-finesse – if there was an obvious answer to a problem, that was his answer, and his clients loved him for that. He was a hail-fellow-well-met person, very gruff. Very blunt, completely to the point. You knew exactly what you were dealing with – there was no sub-text. He was an honest, straight-shooting person and everyone loved him for it.
Q Did you encounter other interesting industrial relations lawyers?
A Yes, of course I did, because we were briefing counsel on a regular basis. I did articles in ’71 so I was admitted in February or March ’72. I didn’t go overseas to London until October ‘72, so there was six months when I’d finished articles and worked six months at the same firm as a junior solicitor.
Q This is Moule, Hamilton and Derham?
A Yes. The ones who stood out to me at the Bar (were) because we were briefing them a lot: Ian Douglas, Keith Marks, Pat Dalton, Michael Dowling, Bob Gilbert, Don Ryan, Neil Brown…there’d be others who I came across and worked with or against…. John Button. Sadly, there weren’t too many barristers that worked regularly in the industrial relations jurisdiction on the union side of things because the unions tended to do their own tribunal work. The firms that did the industrial relations work for the working men and women were Maurice Blackburn, Slater and Gordon, Holding Redlich, Ryan Carlisle, Needham and Thomas and probably a couple of others. They tended to have their roots in workers’ compensation. That was the main income flow that they got – and by doing that work, they would get picked up to do industrial work whenever it came along.
Q So, what was instrumental in your decision to go to the Bar, rather than choosing to be a solicitor working in that side of industrial relations law?
A Look, it’s very easy to give an answer to that question which may be misleading. Words like “instrumental” – they are very easy to use in an historical context. When you’re actually just doing something, you don’t think “Oh, that’s instrumental”. The truth of the matter is that when I was at school, probably back in year 9 or year 10, I got the idea that being a barrister would be a bit neat.
I now tell people, including you, that this all went back to a TV show from the BBC called Boyd QC which had Michael Denison in the title role. It was in black and white, before colour television. It was a half hour program, about a silk in a set of chambers at the Inns of Court in London. The narrator was this silk’s clerk, so you actually got to understand that these people were silks, they had junior barristers, they had clerks, they got instructed by solicitors. It was usually crime – the first 15 minutes of the half hour was the background to the case. The clerk, acting as narrator, would explain that there was some scallywag who’d been picked up by the police for doing something he may or may not have done, and so he eventually ended up in Boyd’s chambers. The second half of the half hour was the case in court: you had examination, cross-examination, you had the judge on the bench, and it did something for me – that program. I liked the fact that it was very close to realistic. I didn’t know then what realistic was, but it certainly looked it. I liked the idea that Boyd sometimes lost, unlike other heroes. The other hero in that era was Perry Mason, an American show that went for an hour and I didn’t like that one bit. I didn’t like the way that Perry Mason wandered around the courtroom and got right up and leaned on the witness box – have you ever seen Perry Mason?
Q I have – bits of it, on YouTube.
A I used to watch Perry Mason out of interest, just to see what I didn’t like about it. But that’s what made me think of going to the Bar. It wasn’t at the stage of having my eyes closed to everything else. It’s true to say that that was a very long-term objective which I knew might or might not come about. When I was at school, the short-term objective was to get through, go to university, get a degree, do articles – you don’t actually think beyond the next corner of the road, you with me?
So when I was over in London, being there two years took me out of my milieu, all the people I’d met in practice. I didn’t correspond with anyone – I corresponded occasionally with Alley (longhand letters of course) but other than that, I was living and working for two years in the academy. My supervisors would have been very keen for me to get a job in the academy in the UK. They said there were a number of jobs there. Yet with my wife who was my constant support in those days – and still is – we got to miss Australia, and we decided that we did want to come back. I thought I’m going to need a job – I didn’t want to get off the plane and think “Gee, I’m unemployed”. So I looked around (now this is 1974 I’m talking about – Gough Whitlam, inflation at 12-14 % percent), and I saw there was a position advertised as a senior lecturer on a salary of $14,000 a year, which to me seemed a fortune. I mentioned it to Stephen Alley in one of my letters to him and he wrote back and said that I should know that $14,000 wasn’t much money in Australia. So, that brought me up very short and I didn’t apply for that position. So I did come back without any work. After a fortnight of looking at couple of positions and speaking with a couple of people, I even put in an application with a firm of solicitors in Caulfield. The fellow rang me up and said “I’m sorry – we don’t want someone as well-qualified as you are – it won’t be good for you and it won’t be good for us”. My wife and I discussed it and thought we could live on her income for 12-18 months, so I went to the Bar.
Q What was your wife doing at the time?
A She was what would now be called a PA. It was also then called a PA.
Q And so you came to the Bar. Now, I believe you read with Stuart Murdoch.
A I did.
Q I’d be interested to know how you were introduced, and how you came to be under his wing.
A My extracurricular passion when I was at university and also afterwards was motor sport, and particularly car rallies or car trials as they used to be called. In those days, it was a matter of having a map with a set of instructions and going around the country and finding a checkpoint. There were often arguments and protests about people being docked points for missing a checkpoint and sometimes it got very complicated. I knew a lot of people who were reasonably high up in the motor sport fraternity. In those days, it wasn’t a sorority. Stuart had then, and still has, a passion for beautiful machines – I won’t go into that. He had done some legal appellate work for people involved in motor sport and then there was an event which was a round of the Australian Rally Championship. This was a pretty big deal. I was friendly with one of the navigators in one of the other cars who was declared a winner of an event. Someone else protested and the stewards for the event reversed the results. This chap wanted to appeal. There was a thing called the Australian Motor Sport Appeals Court and the navigator asked if I could look after it for him. When I say “him”, it was General Motors whose team he was part of. I was the solicitor – I was doing articles at Moule Hamilton and Derham and I spoke to my principal Steve Alley who said, “Sure, you can do that”. So, I briefed Stuart to appear before the court, and we won and restored this man’s trophy. And so I got to know Stuart.
Q What was he like as a master?
A Oh, fantastic. He was a common lawyer, nothing whatsoever to do with industrial relations, which was the direction in which I was intending to go. It was so valuable for me because he was in the County Court (where he subsequently became a judge) most days of the week. He had a very, very traditional, old-style common law practice. That is to say, 8.30 – 9 o’clock every morning, he’d be in his chambers in conference. He’d have a solicitor there, the witness there, he’d go off to court, and I’m just taking all this in. As a master, he wasn’t the sort of person to sit me down and say “this is what you do”; it was up to me to ask questions and he always had a straight answer for it.
Q Were there particular techniques he deployed that you thought could be instructive for you?
A No, I just observed the way he and his opponents went about their work in court – that was what was valuable.
Q Your early years at the Bar – I’m thinking mid-late 70s – what was it like for you? Were they busy years for you?
A Well, yes, and no. I was working hard when the cases came along, but there were blank spots when there was no work. The reason for that is I wasn’t on a clerking list which had any so-called floating work. I would love to have done, in my early years, a lot of non-industrial stuff – you know, low-level magistrates’ court “crash and bash”. I did a few of those items. I’m sure others have explained this to you: there were other clerks whom the solicitors would ring up, and say, “I would like a barrister from your list to appear in such-and-such court the day after tomorrow in this type of case” and the clerk would say “Mr Bloggs will fit the bill”. That’s floating work - the solicitors in effect would go to the clerk first. I almost never got that. The work that I got was almost exclusively either when the solicitor rang me directly or the solicitor rang the clerk and said “We want Jessup because we’ve got a case we need him in”. Mine wasn’t the practice where the meter was ticking over. I’d get in a case, and often they would be good cases where there’d be good time in them, but also periods when you did little or nothing. There was also a lot of opinion work that had to be done. I mean, I might be just writing an advice for three weeks which turned out 12-13 pages. But of course in your early years, you don’t have natural confidence about whether you’re right or wrong, and you’ve got to do a lot of work probably just to write a few sentences. So, you asked me whether they were busy days; that’s why I said the answer’s really yes and no. They were busy when the work was there, but they weren’t otherwise.
Q You really were, then, specialising early on.
Q It sounds as though you would have liked a broader practice?
A Undoubtedly. I was always well aware of the truth of the fact that if you operated narrowly, then it wasn’t going to be right in the long term. You had to have experience of all of the ordinary court craft, the knockabout court experiences that people had. In retrospect, I think I probably didn’t do too badly in getting that kind of experience, but still I would have valued more of it earlier on in the piece. But you see, these days, the junior industrial bar is very different from the way it was in our time.
Q In what way do you think, primarily?
A Well, the Conciliation and Arbitration Commission used to operate in the settlement of industrial disputes. It was a completely different constitutional foundation for the legislation to the one we’ve got now in the Fair Work Act and there was a lot of work in the Commission. As it happened, almost coincident with when I joined the Bar, the Full Bench came up with a new set of wage fixing principles and what the Commissioners would and wouldn’t do with all the awards they had. That created a fair bit of work. There weren’t a lot of barristers that got involved in that – but I did do a lot of work in the Commission and in similar tribunals in those earlier years so that tended to fill up the time.
Q And furthered your niche.
Q When you mentioned before “writing opinions”, did you do any devilling for Stuart Murdoch?
A No. I only heard that expression years later.
Q Would you have enjoyed that?
A I suppose so. Devilling is basically research, isn’t it – looking up things?
Q Yes and being a bit provocative, too – a sounding board.
A I had done two years’ research and if I didn’t look at the back end of another law report after my thesis, it would be still once too many times. In the pre-electronic days when you were writing a PhD thesis, you spent not hours but days in dusty little libraries, truly choking on the dust, blowing the dust off the top of old books you’d get down to see if there were something there, and there usually wasn’t. No, I don’t know whether I would have enjoyed doing that.
Q I happened to come across a photo of you online, with striking State Electricity Commission workers. It was a newspaper photo, black and white, probably taken by the Age at the time. I was wondering about that particular case.
A The SEC was one of my earlier, better clients, so it could be one of a number of cases. There was a significant SEC dispute, which was running, I think, 1977- early 1978.
Q That’s roughly about the time when the photo was taken.
A I haven’t seen that photo – I’d like to show it to my grandchildren.
Q You’re in the background.
A Well, that dispute got a bit willing. The brown coal deposits in the La Trobe Valley generated not only a community, but a whole way of living, thinking, whole way of interacting - there was a real insider-outsiders’ mindset about whether you lived in the Valley. It was a company town, there were a series of company towns: Yallourn, Morwell, Moe, etc – just about everyone worked for the SEC or for contractors to the SEC. There were SEC industrial awards that kept the Commission busy on a very regular basis. About that time, they were building one of the newer power stations – it might have been the new Loy Yang power station. At that particular time, they had a lot of contract work being done in the La Trobe Valley, building work as distinct from the SEC’s normal operations, and to run these huge electricity generating plants, you had to have massive metal trades workshops. You had fitters and turners and all sorts of classifications. Metal trades were very powerful down there, and (this is descriptive, not pejorative) they had a couple of “Pommy shop stewards”. One was called George Wragg and the other was Sammy Armstrong. They were the best-known ones - they always got into the media.
Q They were probably very good organisers, too.
A Oh, tremendous. They absolutely ran the shop. The metal trades workers employed by the contractors were getting paid more than the people employed by the SEC and they were saying “surely you can pay your own people as much as you engage the contractors to pay their people”. The SEC said “Come on, we’re a government body – we can’t shell out that much money – everyone else is going to want that”. So the government had a coordinating body for industrial relations that made sure no-one got too much out of line. There was a strike by maintenance workers. Maintenance workers fix things. When they go on strike, nothing stops working – it’s like a mechanic who fixes your car – for the most part, it doesn’t break down. Electricity kept being generated. That went on for about 10-12 weeks. But there were little breakdowns being fixed and people saying “Who did that? Who welded that? That shouldn’t have been done – we’re on strike!” It caused all sorts of tensions and in a company town, they’re particularly volatile. Ultimately, we had proceedings in the Conciliation and Arbitration Commission.
Q How interesting. Do you think this in any way contributed to the eventual breakup of the SEC?
A It was in an era of deregulation. All of this happened subsequent to Hawke and Keating deregulating the economy and floating the dollar. It happened in the years of Jeff Kennett, who also claimed to inherit a budget that was a hair’s breadth from bankruptcy. I don’t think the industrial background and the Pommy shop stewards were a big factor in themselves. But take the railways for example – they said there’s a lot of big companies around the world that run the railways better than the government. I think the idea of getting experienced private operators into various slices of these things – the Electricity Commission shrunk back into being just a regulatory body – that was in the currents at the time – but the industrial relations record of the SEC didn’t help.
Q Were you developing an understanding of the archaeology of workplace relations?
A Well, I do understand the archaeology, but at the time, I didn’t think along those lines. The ALP conference is currently formulating an industrial relations policy, or a fair work policy which could have really substantial implications. The Work Choices was a revolutionary set of rules. Look, in the 1970s – sorry, 80s, I was just doing the work.
Q During those years, you had three readers.
A Yes, I did.
Q Who all went on to do very well. When did you have your first reader – it would have after about seven or eight years at the Bar?
A No, it was ten years’ minimum at the time. I wouldn’t have had my first reader until after 1985, and I took silk in late ‘87, which meant I couldn’t have readers anymore in those days. So that’s why there were only three readers.
Q I suppose I’m mainly interested to know a bit about the Bar as a place to work - what it was like in those days. Where were your chambers for example?
A They were in Latham in 500 Bourke Street.
Q With Jeff Sher (QC).
A Yes, and John Emmerson. I shared with John Emmerson.
Q Now John Emmerson bequeathed an amazing library (to the Bar).
A I never saw that. He kept that at home. He was next door to me for about 25-26 years and we didn’t live in each other’s pockets. We shared a secretary; there was a vestibule between two rooms and that’s where the secretary was. We worked in different areas. He occasionally did some work in my area: in fact, at one point, my father was John’s witness. John had a case in the Supreme Court that involved my father’s company and related to trade unions in some indirect way. Whether he actually gave evidence, I don’t know – it might have been settled. What was the Bar like? Well, very different to what it is now.
Q In what sense?
A The regulatory framework was much more traditional. The competitive practices were much more conservative and traditional. When I was at the Bar, you did not advertise. You never went to a solicitor’s office. You never spoke about any case that you had been in. If it was suggested that you should give some commentary, like on some current affairs program about some legal issue, you’d have to get the permission of the ethics committee. You certainly never did any work unless you were instructed by a solicitor. When I started at the Bar, we had the two-thirds rule. You know what that is?
A We still had the two-counsel rule right up until not long before I went to the (Federal) Court. So, the practising landscape was very different.
Q When did you first get elected to the Bar Council?
A In ‘88.
Q So by the time the talk about the Victorian Law Reform Commission’s report on restrictions on legal practice came along, you’d been there four years -
A Is that what’s it’s called?
Q Yes. There was a period that the Bar was about to enter – this legal turbulence which was also happening elsewhere, I noticed. There were similar developments in other states. In NSW, there was talk of fusing the two branches of the legal profession: barristers and solicitors. I believe in NSW (then-Premier) Neville Wran killed it off fairly quickly, basically telling his Attorney-General, Paul Landa, at the time that this was never going to happen unless the president of the (NSW) Bar Association agreed to it.
A Well, I don’t know anything about that at all. But as you know, in Victoria, we’ve always had a profession which is fused on paper but divided in practice. Mostly. There’s always been solicitors that have done their own appearance work, and I was used to it because in the Industrial Relations Commission, solicitors regularly appeared. One of Steve Alley’s great strengths, particularly towards the later years of his time at Moules, is that he would do his own appearance work. And then other solicitors at Moules did their own appearance work. I myself never got terribly affronted by that fact; it was just something that you lived with. I knew that to earn my fees and get a job, I had to be better than what the solicitors themselves could do, if they sent along someone to court. But NSW being divided, legally, I thought was a bit of a sidebar to the whole thing. As to the Law Reform Commission, I would have thought it was less than four years.
Q I think by 1992, it had come into full focus.
A Didn’t I become (Bar Council) chairman in about September-October 1992?
Q Yes. 1992 – 1993.
A So 12 months prior to that, it would have been Andrew Kirkham. That’s when it was really happening.
Q That’s right, at its height - yes.
A But to be quite honest with you, it was in development in the 18 months before that when David Harper was chairman. Now (Bill) Gillard was chairman from September ’88 – it was 18 months (to be chairman) in those days – until about March ‘90. Harper went from March ‘90 to September 1991. Then Kirkam took 12 months after that – he didn’t want to do 18 because it was becoming too hectic. I must say, I can distinctly remember the whole Trade Practices thing under Harper – I would say it was definitely on the front burner, perhaps not boiling over just yet, but on the front burner from 1990 at least. I gave all the hard copy papers I had to the Bar office – after a time, I felt there wasn’t any point keeping them in my chambers, all the memoranda and things from before the days of email. I’ve still probably got a lot of stuff that relates to that period.
Q You worked hard in representing the Bar’s point of view. I remember vividly in 1992 a submission by think tank, the Tasman Institute – they made a submission to the Law Reform Commission’s report – their report was titled (and I could be paraphrasing them here) something like “The Monopolistic Practices of the Victorian Bar”.
A That doesn’t surprise me.
Q That was a prominent submission to the Law Reform Commission’s report and drew a lot of ire from the Bar Council at the time.
A Absolutely – that would be consistent with my recollection. But to be honest with you, Juliette, most of the stuff was in writing and I’d need to know dates and events to get a point of reference for taking the matter much further. When was the Victorian Law Reform Commission’s report?
Q Well, now, I’ll have to check that…
A I thought there might have been two reports – a draft report and then a real report. One report they issued was embarrassingly bad and didn’t have any defenders. We were the subject of interest, to put it mildly, by a number of institutions all of whom appeared to be antagonistic to the way we carried on our profession – the Victorian Law Reform Institute, the Trade Practices Commission, the Tasman Institute - though they might have been commissioned by the Victorian Law Reform Commission. I’m sure when Harper was president, we had a full-day meeting with representatives of the Trade Practices Commission, sandwiches, everything. They were really nice and intelligent people. The Victorian Law Reform Commission – I wouldn’t have said that – I thought they were pretty trashy actually. But the Trade Practices Commission sent along really intelligent people and you got the sense they were strongly listening to what we were saying and understanding it, and realising that they would have to have something pretty good if they wanted to dismiss what we were saying.
Fundamentally, what it came down to was that we weren’t anti-competitive because under Victorian law, we were a voluntary association at the time, and we had no monopoly on appearance work. This was an argument the NSW Bar couldn’t make. Any solicitors, we said, could do barristers’ work – they could appear in court, they could advise people. Secondly, we only did work from solicitors, so who better to decide whether we should get the work or not? That was our argument and they never really dispensed with that argument. I left the Bar Council in late 1993, and I don’t know anything about what happened since then, but over the next five years after that, my observation from a distance is that the Bar Council converted from being a rigid, traditional, defensive body to being a body that thought “We’re going to have to be PC. We are going to have to appear to move with the times, we’re going to have to be progressive and modern”. All the things which we had traditionally felt were not part of the function of a barrister.
Q Do you feel that was a move for the better on the whole?
A I don’t know. Looking at it in retrospect, I think it was inevitable, so I suppose it was better to do it voluntarily rather than to have a much less palatable outcome imposed on you by people who didn’t know what they were doing. No, I think it was probably the right thing to do. It was an evolutionary thing. These were arguments we had to have, and the Bar has now put itself in a strong position. It is a wonder to me to see how its strengths and traditions are so healthy, within a totally different regulatory environment.
Q It gives you hope for the future of the Bar.
A I don’t think there is any issue about it at all anymore. At the time, we thought we were defending the Bar. We were probably just keeping its nostrils above the waterline until someone came along with some floaties.
A Well, just look around you. It’s a totally different way of operating but it’s now, I think, completely in sync with the commercial and litigious world in which it operates, and the clients that it serves. It is quite flexible. You’ve still got people at the Bar who operate in a very traditional way; silks who would never appear without a junior. If I hadn’t gone to the Court, that would still be my position. I never appeared without a junior. And now, of course, having come back from the Court, I won’t appear at all, so it’s not a question I’ll ever have to confront. I think if it’s a case in court, if you need to engage a silk, then it must be important enough to have the silk assisted by a junior member of the Bar. That’s a position which I know a lot of people still hold.
Q Certainly tribute was paid to you at the time. Do you feel your main contribution as Bar Council president was the defence of the Bar such that it became in due course the more fluid institution that you’re describing?
A Well, I don’t want to re-write history, particularly from my own perspective. I was wanting the Bar to be more adaptive. So, it wasn’t defence in the sense that we were going to hold this piece of land and dig our trench, come what may. It was more a way of preserving what we valued and adapting ourselves to the new environment. I remember I wrote when I was president an editorial or Chairman’s Column, in Bar News. I said “Sometimes the Bar is like someone floating in a slowly moving river, with their eyes mostly closed, like a hippo, and every now and then they open their eyes and see “Oh, the landscape’s different – I must have been going somewhere.” The point I was trying to make was, “we are going somewhere – it’s not something over which we have any control; but what we can do is to take control over where we will be placed in that somewhere that we’re going to find ourselves in”. Now I wasn’t talking about the regulatory or the anti-competitive aspects of the Bar; I was talking about technology. I remember computers were then well and truly established by that time. I think email must have been coming in by then – electronic communications were definitely going to be important.
Q Emails really got going in the mid 90s – the earliest known form of the internet was in the 80s, but widespread adoption got going at least in ’96-97.
A We were talking about Owen Dixon Chambers East and whether it would be feasible to wire it, and how much it would cost because it was originally built in the 1950s. It was going to be very expensive. One thing I recall thinking at about that time was “it won’t be long before this all happens wirelessly. No sooner do we spend a king’s ransom on putting wires through this building, than someone will have found a way of doing it without any wires.”
Q The CSIRO came along with Wi-Fi.
A Yes, exactly.
Q You were right.
A I remember as (Bar Council) chairman, I appointed a committee of which Julian Burnside was the convenor, and gave the committee the remit of identifying the challenges which the Bar would face over the next five years and in what areas, and what might be done to anticipate those things. Because Burnside was one of the earlier gurus about the internet at the Bar, I thought that he would have a lot to say about that, but he didn’t have much to say about that and the report wasn’t very valuable.
Q So the SWOT you hoped for didn’t materialise.
A It didn’t materialise, no. From recollection, what they did was talk to all the clerks and found out who was joining and who was leaving.
Q That’s a very different kind of report.
A Yes, perhaps I didn’t make it clear enough. Anyway, there you are.
Q You didn’t want to talk in any detail about your cases (for this interview), but I wanted to ask you briefly about appearing for the National Crime Authority at one stage. That body no longer exists – it’s been superseded. I’m interested to know about that kind of work – it was different, I take it, to your normal area of specialisation?
A Over most of my time at the Bar, I did a bit of Commonwealth work in what was then administrative law. No-one then would say they were a “human rights lawyer”. These days, it’s human rights, etc. I think I did one of the earliest migration cases - before Ninian Stephen in the High Court, I was opposed to Gavan Griffith. You know the ADJR Act – the Administrative Decisions Judicial Review Act?
Q Not in detail.
A Well, it provides for a court challenge to administrative decisions. Well, it was before that Act came in, and it was rather quaint. Gavan Griffith was wanting prohibition and certiorari, and things like that. So, it was in that type of legal context, that I then picked up a number of briefs over quite a long period of time from the Commonwealth. I think I was one of the people that they briefed for legal challenges to administrative decisions. It wasn’t crime. Sometimes the administrative decision happened to be made by the Minister for Migration, or whatever they were called at the time – at other times, it was made by other government bodies and gurus. This particular decision which was challenged in John Elliott’s case …. the actual decision was made by a member of the Victorian police, but under Commonwealth legislation. It probably would have been a decision not made under Commonwealth legislation but in any event, it involved the NCA which was named as a respondent to the proceeding. So I got briefed in that role. I didn’t regard it as a criminal-type case. The NCA just happened to be the body that made the decision under which the challenge was made.
Q You did quite a number of appearances before the High Court, I believe.
A Probably as many as most people who’d been at the Bar thirty years, but a few, yes.
Q Were you subject to intensive questioning that was unexpected?
A I don’t know about unexpected.
Q Or unsettling perhaps?
A Well, undoubtedly this one was - the last High Court case I did just before I was appointed to the Federal Court – we ended up losing. We had given them the outline of our argument which had all the points of detail in it, and I had two main streams of argument (there were some subordinate arguments, but two main streams of argument). One was an administrative law challenge to something which the Industrial Relations Commission had done or proposed to do. One related to legality under the legislation and the other related to the validity of the legislation. So what we were effectively saying was that the legislation did not permit them to do this, or if it did permit them to do this, then it was unconstitutional. That was the order in which I intended to run these arguments: first of all, the statute, and then say on the other hand if we were wrong about what the statute says – if the statute says what the other people say it says - then it was unconstitutional.
Well, one of the members of the High Court - I think it was (Justice) Hayne – if it wasn’t Hayne, it was (Justice) Gummow - said to me, “It strikes me as strange that you’re dealing with the statutory argument first. The constitution comes first, surely, and only if the constitution permits you to pass the Act, is there any need to consider whether the Act is what the Act says”. I said, “That’s a fair point, but it’s not the way I wanted to run it”. Now the reason I wanted to run it – I couldn’t say – was because I thought the statutory argument was stronger and I wanted to make that the main part of my argument. I simply said, “It could have been done either way, but you’ve got our outline, you can see which way we’re going, and I’ll come to that in a moment.” And they wouldn’t let it go: “I’m finding it hard to follow if you do it that way”. In the end, I said “Right-o, ok. Turn to page 25.” And we did the second part first and the first part second.
Q Did that destroy the strength of what you were doing?
A No, it didn’t destroy anything but by then I knew I was hopelessly up the spout because the truth of the matter was, they weren’t interested in the statutory argument and I knew the constitutional argument was not going to be a particularly strong one.
Q So it was unfortunate that Justice Gummow took that line.
A Yes. Gummow and Hayne.
Q When you were appointed to be a Federal Court judge, were you seriously entertaining notions of going on the bench at the time?
A I don’t know what you mean by “entertaining”. I was quite happy to stay at the Bar. I suppose it’s always something that’s at the back of your mind – it might or might not come about. When I was asked, it took me about 24 hours to make a decision - I discussed it with people, my family. I don’t think at the time I was entertaining the thought of going on the bench.
Q And you enjoyed the transition?
A It wasn’t a problem at all - absolutely seamless.
Q You had a great deal of work to do when you went on the bench. You took on board quite a number of activities to do with the workings of the Court.
A But all the judges - I wasn’t taking on board more than what would be typical, I would think. There’s a lot of committee work, not only in that Court, but in any Court. I wasn’t out in front of the field in that area by any means.
Q Can I ask you a little about being a founding member of the Australian Labour Law Association and how that came about?
A It was driven by a chap called Richard Mitchell at Melbourne University. He really had everything – he had all his ducks in a line as to how he would do it procedurally. We went up to a meeting at Melbourne University and I suppose we went through the necessary motions to found an association, and that’s all there was to it.
Q I guess what I’m really asking is whether there was some need or gap in the field – an absence that it was filling?
A I think there was, because the Industrial Relations Society which had existed for many years and had corresponding societies in the other states and territories, had lawyers as one of the area of practitioners which they’d attracted. The IRS had five different areas: employer representatives, union representatives, the professions – which meant the lawyers – academics and people in government service like the regulators. The IRS brought all these people together and it was rather nice, but inevitably the conversations, the papers that were given and the seminars were not sufficiently focused on law as such to provide any kind of technical interest or challenge to lawyers. The Labour Law Association, as they call it, would hopefully do that.
Q There’s certainly some interesting challenges, not in the legal sense, that have arisen in recent years. I’d be interested in your thoughts on the casualisation of the workforce – sometimes known as the “gig economy”.
A Funny you should ask that – it’s been exercising my mind a bit recently. I’m not sure that my views are really sufficiently developed yet to be categorical about anything. What exactly do you mean by “casualisation”?
Q I suppose in essence not having access to the full palette of employees’ rights.
A You realise that has always been the circumstance? There was a major case in the Industrial Relations Commission in 2000 in which they looked at all of the things that casual people got and didn’t get, and they fixed the loading at 25%. If you take a particular worker who’s covered by an award or an enterprise agreement, the casual rate is 25% higher than the permanent.
Q That’s true.
A That’s to compensate for the worker not getting annual leave, not getting sick leave, not getting public holidays, and also for what’s described as the intermittency of a casual’s working life. The casual, in addition to that, gets long service leave. You would think, how can a casual get long service leave? Well, because the Victorian statute says he must. So, if a casual works for a particular company in, shall we say, 1990 and works a couple of times a year intermittently – 2 or 3 days each time - over the next 15 years, they have to get long service leave or payment in lieu. And there’s a very complicated formula, but basically they get the best of all worlds. It’s calculated on the average of your earnings over the last two years, or the last five years, or over the total period – whichever is the highest – that average is then factored into giving you a certain amount of leave. So, in addition to being 25% ahead, you get long service leave. Additionally, of course, you get superannuation, which is 9 and a half percent on the rate which is already being brought up by 25%. A full time worker would get their superannuation calculated on the base rate, whereas a casual worker gets it calculated on what they receive as a casual. Now, I’m struggling with the concept that being a casual - if you do it with your eyes open, you know what you’re doing and that’s the way you want to work – should be regarded as one of the social evils which we have to confront these days.
Q There has been a slew of reports recently, though, of casual workers being underpaid –
A Oh, underpayment’s a different thing.
Q I know, although it has been attached to this issue. Do you think it’s the job of unions to better educate people on their rights and entitlements, if they’re casual workers? I accept that many of them might be non-unionised.
A It’s the role of unions to educate their members. Whether they should take a wider social function of educating people who aren’t their members – I don’t think you would ever say it’s their “role” in the sense of falling short of their responsibilities. If I was a union officer, I would certainly want to make sure all of my members had access to the latest information on these things. I think most of the big unions do – they would have industrial officers who are usually legally qualified who the members can ring on the hotline with questions, and it’s usually dealt with.
Q You had eleven years on the bench and I was reading some of the tributes to you – they all seemed to be hinting you were going to retire, but that hasn’t been the case.
A Well, I did see what it was like to be in retirement for 6-8 months, and decided I’d come back to the Bar. I didn’t want to make that decision immediately because it might be the wrong one. I wanted to feel the living environment of being in retirement and while it is nice, ultimately it’s unsatisfying.
Q Intellectually unsatisfying?
A Yes. Also, you miss the companionship. I found I was coming in to have lunch with my mates at the Bar at least once a week. I felt if that’s what I’m doing, I might as well get chambers.
Q I believe you did a degree in wine science, because of your vineyards.
A Oh, yes, I did at Charles Sturt (University) at Wagga.
Q How much is producing wine an art versus a science, or vice versa in your experience?
A It’s more of a science than it is an art. I would have thought the word “art” is a rolled-up metaphor for things coming under the heading of experience and know-how. That is, someone that doesn’t know anything of the science – she or he could still make a good wine, because all the old winemakers did. But for someone who hasn’t got that, the chemical rules for making wine is a bloody good place to start. You’ll inevitably get experience on top of that, like getting a sense of how much a particular additive needs to be put into a fermentation at a particular stage, how things are travelling, what something should smell like…so that’s great. I had to do residentials twice a year, so my wife and I didn’t get many other holidays in that period. The time when I could excuse myself from practice at the Bar, I would go up there for a fortnight or so, work in the lab and do all that sort of thing.
Q Perhaps that long-ago career adviser was a bit off the mark – he should have said biochemistry.
A Could have – yes. It was well worth doing, and valuable to me when I was doing some patent cases when I was on the Court.
Q Are you doing a lot of arbitration work now?
A No, I haven’t done any arbitrations yet. I’ve done a bit of mediation but that type of work hasn’t yet come to me.
Q Your decision to come to List G?
A I used to be on a list with a clerk called Calnin. That only lasted a year and then I got a clerk called Duncan – you’ve heard of Wayne Duncan?
A I stayed with Wayne Duncan’s list until he retired and then I took that opportunity to move over to (List) G, which I thought in terms of the balance of practising areas that their counsel were found in, it was a better kind of fit for my kind of practice than was Duncan’s List.
Q Are there particular things you still want to do in terms of your contribution to jurisprudence or any related area of the law, Dr Jessup?
A Well, I would like to do some writing and I am quite happy to do seminars in the CPD space, so I’ve done that. In terms of practice, arbitration is something (that) if it came along, I would find quite rewarding – that’s an experience which I would like to have.
Q You said writing – what kind of writing?
A Legal writing.
Q For a moment, I thought you were planning on fashioning a career as a fiction writer!
A Hell no. No, no, I mean research – I had something published a couple of months ago. Funny you should mention casuals – it’s very interesting you put that question to me in exactly the form you did, because what you describe as “casualisation” – you could put “isation” on the end of any word and make it sound like a demon. I’ve been looking at early stuff on casuals since pre-1920 to see what they did then. Whether I’m going to get anything out of that, but it’s fascinating - just to do the research.
The early president of the Court, Justice Higgins – he was dealing with timber workers - particularly people who worked out in the bush, felling trees, hauling them to the sawmill and all the different classifications within the sawmill. He said, “There’s something in this industry which I’m not impressed with – that’s employing people and then whenever they’ve finished a particular job, you put them off. They might not even get a day’s work. Then when you’ve got another job, you put somebody else on.” He said, “This industry should be one in which weekly employment is the rule.” He wasn’t saying there was anything wrong with employing people as casuals – he was saying there was something wrong without giving them a loading and recognising them as casuals – not even giving them a day’s work. On the other end of the spectrum, people mightn’t be casuals, but they might be part-timers. They might be employed two or three days a week, but they don’t get any loading. They get annual leave of course, but that’s only a leave away from work for two days each of the four weeks’ annual leave. So, is that ideal? Some people would say no, but others would say “hang on, that’s exactly what we do with job sharing”. Job sharing is very fashionable because it helps young mums get back into the workforce.
A Flexibility. I don’t know - there doesn’t seem to me to be any ideal way of skinning this particular cat. There are some circumstances which call for people to get the extra loading and to have a bit of time to themselves. What might be causing the problem is the nominal casualisation of full-time workers – there was a case decided six months ago where people are employed by labour hire companies to do full-time work. So they work in the mines of Western Australia or Queensland – they might in fact work a six day week, but they’re described in their contracts as casuals and they don’t get any annual leave or anything else. I’m going on now way beyond your remit. Sometimes it’s done under an enterprise agreement which isn’t 25%, it might be less, and you have to ask, how does that enterprise agreement pass the “better off overall” test? It’s been in the news with Coles and Woolworths and other retailers who’ve made a bad muck-up of their enterprise agreement and people would be better off under the award.
Q Maybe it might fall to you to come up with a better way of calibrating that advice?
A I’m sure they wouldn’t want my advice on that, but my thinking and advice would be: don’t do anything until you know exactly what the problem is, what the evil is. Make sure you take the right medicine.
Q That seems to be the perfect point at which to conclude this interview. Thank you, Dr Jessup.
A Thank you very much.