A Lawyer in Politics
Address by Professor the Hon Gareth Evans AC QC to Attorney-General’s Department ‘Talking Heads’ Series, Canberra, 26 July 2012
There is a certain irony in me talking to you on the subject of ‘a lawyer in politics’. The part of my long public policy career that I’d probably most like to forget is precisely the time that my career as a lawyer and as a politician most coincided, when I was in charge of this department as Attorney-General in 1983-84!
This was not what I had anticipated. I came to the role with huge enthusiasm, having been Shadow Attorney-General for nearly three years, and having been engaged for many years – as I’ll talk about in a little more detail – in civil liberties, law reform and constitutional change issues as a civil society activist, academic, consultant to the Whitlam government, and law reform commissioner. I had a fully worked up list of 54 action priorities for my first two years, covering among many other things a national Bill of Rights, a constitutional referendum on fixed term parliaments, a no-fault accident compensation scheme, major changes to the FOI, Family Law and Trade Practices Acts, establishment of a Director of Public Prosecutions, reform of defamation laws, regulation of insurance agents and brokers, companies and securities legislation and changes to ASIO.
It was a heady mixture of left-over projects from the Whitlam-Murphy years and a number of bees in my own bonnet, and certainly left the Department of the day rather gasping, though I have to say they rose to the challenge marvellously. I was bold enough to suggest a couple of weeks into the job that I and my friend Michael Kirby, still head of the Australian Law Reform Commission, ‘would be to law-making what Butch Cassidy and the Sundance Kid were to law-breaking’.
Alas it was not to be. Although we did a number of good things my term was a fairly short and inglorious one, troubled by a miscellany of things that went spectacularly pear-shaped, like the photographic evidence-gathering flights over the Tasmanian Dam site – meant to be unnoticed at 30,000 feet but in fact, as a result of a miscommunication in Defence, swooping in at 500 feet and frightening the hell out of every living creature in the vicinity! And my very involuntary involvement in the Coomb-Ivanov affair, which rather sullied my civil liberties credentials, to the extent for example that my efforts to move toward effective legislative protection of privacy led to the press in Sydney sponsoring for years afterwards annual ‘Gareth’ Awards for the year’s worst invasion of free speech…
But the biggest problem was that my colleagues in government, starting with the Prime Minister, were utterly preoccupied – understandably enough – with our huge economic agenda – and basically not very interested in anything I was doing. They weren’t very willing to give me the acres of legislative time a major law reform program demanded, and in some cases became more than a little unhappy about some of the things – like tougher FOI legislation – that I did manage to slide through in the early days. What I was on about might have been great stuff for Opposition – and it was – but in government it was, if you’ll excuse my then leader’s expression, a ‘wank’.
But I did live through a few more incarnations to tell a few more tales, and – as I hope I’ll make clear – my legal training and instincts have always been an important part in defining the issues with which I’ve been concerned, and the way in which I’ve tried to go about addressing them: in particular as Foreign Minister, head of the International Crisis Group and chair or member of various high level international panels, addressing a multitude of international law (including in particular international human rights law and international humanitarian law, and disarmament issues), and as deputy leader and leader of the government in the Senate, carrying the debate on a huge range of domestic legal issues, probably most memorably the legislation implementing the Mabo decision whose 20th anniversary we have just celebrated.
I should perhaps say now in relation to that Native Title Act debate back in 1993 that – while mine was really only a bit-part at the end of the process, not to be compared with the 12 gruelling months put into getting the legislation that far by Paul Keating personally and those working with him, including a wonderful cast of Indigenous leaders – getting the final vote on that Bill two minutes before midnight just a couple of days before Christmas, after carrying the debate through 238 amendments and 52 hours, then the longest parliamentary debate ever on a single bill, with the packed Senate galleries cheering and stamping and whistling in a totally undignified parliamentary scene that I don’t think has ever been repeated before or since – was absolutely the most moving and exhilarating moment of my parliamentary life.
When something happens as big as this, that mattered as much as this did to so many people treated so badly for so long, it makes up for an awful lot of other frustrating or desolate or embarrassing or ugly parliamentary moments – and I certainly had more than my share of those over 21 years.
But let me begin at the beginning. When I first started studying law, back in ancient times – in the early ‘60s – law students looked a little different from the way most do now: the guys all wore short hair, tweed jackets, skinny ties, grey trousers and brown suede shoes; the girls angora twin-sets and tweedy skirts; the only redeeming feature being that hair grew longer and skirts dramatically shorter as the decade progressed. The overwhelming majority of my contemporaries did law because they wanted to practice it: or thought they wanted to or, perhaps more often, knew their parents wanted them to. For some of them it wasn’t so much law as such, but that it was a professional degree – and medicine was out because they couldn’t cope with the maths or the blood.
There were a few who did law for other reasons: that it would look good on their CVs if they decided to go into business, or diplomacy or maybe even politics; and even a handful who thought that – wherever else they ended up – it might at least be useful to have the rigorous intellectual training, in logical and linear thinking, that a law degree then, as now, was rather optimistically thought to involve. But I don’t think there was anybody much who did law because they were passionate about public policy, about social and institutional change, about serving the community, and saw law – and a legal training – as a vehicle for achieving it.
I can’t pretend that at the time I had any very clear, let alone radical, vision of what I wanted to do with my own law degree. As a working class kid from a respectable family I grew up without any exposure to the legal profession whatsoever. I did law basically because I could – because I had the marks to get in, because it was a flash professional degree that didn’t involve cutting people up or drilling teeth, and because (when combined with Arts) it went on long enough for me to have a great time at university. Which I duly did, paying far more attention to student politics, and all the other familiar student distractions of the ‘60s, than I ever did to Property, Mercantile Law or Equity.
The rather leisurely character of that student age is best characterised by the (true) story still told of Zelman Cowen, who was then my Dean and later went on to later national greatness as a healing Governor-General in the aftermath of the comprehensively appalling Sir John Kerr. It involved a perennial law student who ambled his way through the Melbourne course some five decades ago, about the time the Faculty here was founded, failing more subjects than he passed each year— until finally just one compulsory subject stood between him and his degree, Australian Federal Constitutional Law. That was a subject, however, in respect to which this student's ignorance seemed to remain impenetrably boundless.
Contemplating yet another dismal examination performance, the lecturer asked the Dean of the Faculty how might it be possible to temper justice with mercy and get the laggard out of everyone's hair once and for all. After pondering a moment, Zelman came up with a solution of unimpeachable simplicity and elegance: 'Give him a supplementary oral examination and ask him just one question: Is there a Section 92 in the Australian Constitution?' 'But', said the still justifiably sceptical lecturer, 'What on earth do I then do if he says No?'. 'Well then', said the great man, 'you must reason with him'.
Back in those law school days, in the early 60s, the idea of law as a vehicle for human liberation, for protecting human dignity and advancing human security in the broadest senses, and not as a source of limitation or constraint – not just something you practised as a technical vehicle for the rational management of personal, business and property affairs and community safety – was not then central to anyone’s thinking. There were some professors and lecturers who showed signs of a social conscience, and of whom I took some notice, but this was hardly a mainstream preoccupation. And it certainly didn’t feature very largely on the program of law student society conferences, or at least not Melbourne’s: the annual preoccupation for us, as I recall it, was who would win that year’s Harry Curtis Trophy – a fur-lined jockstrap – as the perpetrator of the weekend’s worst social atrocity.
It was a time when books and plays were banned, people were still being legally executed, abortion was completely illegal, there were no administrative law protections worth the name, racial or sexual discrimination or land rights legislation was undreamed of, and there were no Aboriginal legal services or community legal services as we would now recognize them. Law reform commissions, if they existed at all, worked on cutting edge issues like negotiable instruments and cattle trespass.
I cut my own teeth as a law reformer – and as someone who gradually came to the belief that law and a legal training could be harnessed in the cause of great public policy developments – mainly through my involvement, as a campus rather than law school activist, on issues such as anti-censorship, anti-capital punishment, abortion law reform and anti-apartheid. A little bit later, as an articled clerk in a small city law firm which had previously given as much attention to social justice as it had to hunting elephants, I generated a number of near heart-attacks among the partners after persuading them to take on some extravagant but doomed litigation, which became a considerable media cause célèbre at the time, on behalf of the teenage son of a mud-brick dwelling artist from Eltham who had been expelled from school because his hair was too long (closer to his waist, I have to concede, than his collar).
And it was in this period, and the years after, that I really started to get concerned about indigenous people – and particularly kids – breaking out of the cycle of criminality and neglect to which they had been condemned by generations of legal mismanagement, which led later to my involvement in establishing the Victorian Aboriginal Legal Service.
But I guess my real awakening to the sense that a legal career could involve something a bit more emotionally satisfying than sorting out drainage easements came after my return from study in Oxford, to take up a job for the next six years as a lecturer in law at Melbourne University, teaching constitutional and a variety of civil liberties-law related courses as well as torts – and in an environment where I had the time and, as an academic, some credibility (those were the days!) – to work on changing public attitudes and political directions.
I also had the benefit of being reasonably close to the action in Canberra, where during the Whitlam Government I worked as an adviser on human rights issues to Attorney-General Lionel Murphy, closely involved with the team drafting the ill-fated Human Rights Bill and the rather more successful Racial Discrimination Act, and on the emerging issue of Aboriginal land rights. Murphy appointed me to join Michael Kirby as one of the inaugural Australian Law Reform Commissioners, an experience which I enjoyed hugely – particularly the major work we did on criminal investigation law and practice – until I was purged for political incorrectness, having stood as a Labor candidate in 1975, by incoming Attorney-General Ellicott.
One of the most memorable features of those Commission days were the regular bouts of verbal fisticuffs I had with Sir Gerard Brennan, as he later became – a delightful man and a splendid High Court Chief Justice – over the text of the criminal investigation report, with Gerry accusing me, not entirely without foundation, of being an academic lawyer obsessed with high-minded civil libertarian principles which a stint in the real world of criminal law practice would knock out of me!
The need to demonstrate that I could actually cut it in the practice of law, as distinct from talking about it, led me then to full-time practice at the Bar for a couple of years before I finally entered the Senate in 1978. I had cases in just about every jurisidiction from the Broadmeadows Childrens Court to the High Court – feeling, I have to say, much more at home in the latter – but spent most of my time doing rough and tumble industrial work, with one of my most memorable instructions coming from the Builders Labourers Federation head, Norm Gallagher: ‘Son, I just want you to keep talking for two days – I don’t care what you say: I just want you to tenda-wise them…’.
So this is the background that I brought to the position of Attorney-General when I finally got there in 1983 – with the results that I’ve already talked about: and I bear a little bit of the scar tissue to this day!
For most of the years which followed – certainly from the late 80s onward –I have been much more preoccupied, and a little more successfully, with international than domestic issues, first as Foreign Minister for nearly eight years to 1996, then as President and CEO of the International Crisis Group for ten years after 2000, and throughout that time, and since, as a member of various international policymaking commissions and panels and advisory boards.
While law-related issues have been a recurring element in a whole variety of problem areas on which I worked – for example the need to have much more effective rule-of-law delivery as core components of peacekeeping and peacebuilding missions, and the need to somehow reconcile the competing claims of peace and justice when trying to resolve conflicts – there are two big policy issues I have pursued more than anything else during this period, trying to eliminate mass atrocity crimes (with the birth and evolution of the ‘responsibility to protect’ docrine), and trying to eliminate the threats posed by nuclear weapons.
Both of these areas have been characterized by a failure of both international law and international policy to protect those who should be protected, and my mission in life has been to at least try to energise a much more effective response by the international community. There’s much more to say about the extent to which there is anything to show for those efforts – and I think that, despite Syria, we are doing better on the atrocities than the disarmament front – but perhaps we can save that for the discussion period.
The last point I want to make about my own law experience is that although my international preoccupations over the last two decades have been primarily general policy-focused rather than specifically legal, the foundations for both the atrocity crimes and nuclear efforts, and just about every other international reform I have been pursuing, have always been essentially legal in character. What has driven me is a total commitment to a rule-based international order, not least when it comes to human protection issues, and my comprehensive distaste for the sheer moral indecency of conducting international life either without principled standards, or with double standards.
That distaste, I have to say, remains unsuppressed despite years now of tramping diplomatic corridors and sitting around international conference tables, not to mention all the rigorous insensitivity training I received in twenty-one years of Australian party and parliamentary politics.
Expressing that distaste doesn’t always win one friends in high places, domestically or internationally, but I’ve never minded living a little dangerously when it comes to trying to engineer reform on things about which I care deeply. I hope that at least a little of that spirit lives on here in the Attorney-General’s Department, which – while no doubt it finds some ministers and governments more responsive than others – has a long and fine tradition of coming up with creative solutions to intractable problems, and giving frank and fearless advice. May that tradition continue.