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From the Law School to Politics

Address by Professor the Hon Gareth Evans AC QC to 1960s Alumni Reunion, University of Melbourne Law School, 22 November 2012

Things were a bit different in the 1960s. The look of the place for a start, certainly at the beginning of the decade: you’ll remember the Law Library in the old Quadrangle being full of young men all wearing short hair, tweed jackets, skinny ties, grey trousers and brown suede shoes; with  the girls wearing angora twin-sets and tweedy skirts, and big hair. In the case of the men I don’t think flares and long hair gained much traction until years later (and certainly Law always lagged some distance behind Arts in this respect) – although in the case of the girls, as the decade progressed, the skirts rather rapidly grew shorter, and the hair even bigger and stickier.

In my later Senate years my nemesis Bronwyn Bishop remained something of a throwback to those days, with a beehive that could have resisted a Hamas rocket attack: I can remember a colleague, musing about what she put on her hair, saying “If I knew what it was I certainly wouldn’t be wasting it on my hair’.

And there was the pace of the place. Things were a bit slower in the University generally as well as the Law School. I think fondly of the long conversations I had over tea and biscuits, when I was President of the SRC in the mid-60s, with that delightful gentleman Sir George Paton – previously Professor of Jurisprudence, and Vice-Chancellor for nearly 30 years, until 1968.

As one of my predecessors put it:  “Of all the people I’ve ever met holding exalted positions, he’s the only one I’ve ever come away from feeling he’s wasted my time”

I seem to remember the pace also being a bit less manic academically than it has since become. There certainly wasn’t quite the same financial and institutional pressure there is today to plough through the course in minimum time. There is a great story which captures all this – which bears retelling even if you’ve heard it a few times, which I suspect most of  you have – told about Zelman Cowen, who was Dean until 1966:

It involved a perennial law student (I don’t think here tonight) who ambled his way through the course failing more subjects than he passed each year— until finally just one compulsory subject stood between him and his degree, Constitutional Law II, in which Zelman was the lecturer. That was a subject, however, in respect to which this student's ignorance seemed to remain impenetrably boundless – he’d already failed it four times.

Zelman decided that it was time to temper justice with mercy and get the laggard out of everyone's hair once and for all.  So he told the tea-room he had decided to give him a supplementary oral exam, in which he would ask the student just one question: ‘Is there a Section 92 in the Australian Constitution?' 'But', said someone, 'What if he says No?'. 'Well then', said the great man, 'I will reason with him'.

Zelman of course was a wonderfully exuberant and inspirational figure, who had given the School a lot of its character and reputation and was certainly one of my inspirations for playing the public policy role I later did.  It has to be acknowledged that he did not lack self-confidence, one manifestation of which was his constant and exuberant use of the first person pronoun.

So much so that when he later became Provost of Oriel College, Oxford in the 1980s, he and his delightful wife were known around town as ‘Anna and the King of I am”.

There were quite a few other inspirational figures around the Law School in those days, but few I think commanded more complete affection than Harold Ford, whose death just two months ago at the age of 92 was very widely mourned around the profession -  not just for his monumental contributions to the law, and this Law School where he was Dean for seven years after Zelman, and a Professor for decades more, but because he was such a genuinely lovely bloke.

Even for those like me, for whom Company Law and Equity were just about my least favourite subjects in the entire course, Harold was hugely popular for his lecturing style, which – while also catering for the aficionados – slowed down regularly to almost dictation pace to enable the key bits to get into the notes, and with a bit of luck the heads, of the sluggards and the deeply uninterested.

I have to say in this respect, and you’ll tell me if I’ve got it wrong, I don’t think a huge number of us were driven all that much by intellectual fascination with the law. I think the  overwhelming majority of us did law because we wanted to practice it: or thought we wanted to or, perhaps more often, knew our parents wanted us to. 

There were a few of us who did law for other reasons: that it would look good on our CVs if we 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.

Maybe things changed a bit in the later 1960s, with the Vietnam War – when for many, with conscription, the absolutely perfect cause arose, marrying high principle with naked self-interest.

But in the early to mid-60s, when I was around, 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 really very central to anyone’s thinking. There were some professors and lecturers who showed signs of a social conscience, but this was hardly a mainstream preoccupation.

And certainly for the annual Law Student Society conference (as I hope Phil Cummins for one won’t mind me recalling), a rather bigger preoccupation than social justice was who would win that year’s Harry Curtis Trophy – a fur-lined jockstrap – as the perpetrator of the year’s worst social atrocity.

I can’t pretend that at the time I myself 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 non-criminal 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 with a scholarship;  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 or Mercantile Law.

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 in 1970 to lecture in the Law School, 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 heady days of 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 also appointed me to join Michael Kirby as one of the inaugural Australian Law Reform Commissioners.

This was 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 by the incoming Attorney-General Bob Ellicott, having stood as a Labor candidate in 1975 and been a rather noisy opponent of the Kerr-Fraser constitutional coup (or Kerr-Mason-Fraser coup as I’m afraid we now have to say).

I went to the Bar full-time for a couple of years before I finally entered the Senate in 1978, mainly to demonstrate to my rather sceptical peers that I wouldn’t actually starve if forced to practice law rather than just talk and write about it. Most of that time I spent doing rough and tumble industrial work

- with probably 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…’.

Although I was inveigled into talking to you this evening on the specific subject of ‘A Lawyer in Politics’, I have to confess that 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 finally realised the dream of becoming Attorney-General in 1983-84.

This wasn’t exactly what I had anticipated. I came to the role with huge enthusiasm, with the background before politics that I’ve described, and a quite successful period as Shadow Attorney-General for nearly three years in the early 1980s, mainly spent persecuting across the chamber Peter Durack as Attorney-General, a very nice man who didn’t really deserve it, and trying to persecute Garfield Barwick, who I think (though some of you will disagree) most certainly did deserve it.

When I was sworn in, 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, in particular, as I’m afraid you’ll all remember:

-- 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 Bob Hawke’s expression, a great ‘wank’.

I won’t burden you with too much more autobiography

– these occasions are for talking and drinking and trying to remember which unrecognisable  grey-haired wrinkly is some-one who forty-plus years ago you used to know.

Just to say this.  For most of the years which followed – certainly from the late 80s onward –I have been much more preoccupied, and hopefully a little more successfully, with international than domestic issues, as Foreign Minister for nearly eight years to 1996; after politics 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.

What’s interesting in retrospect is how many of my international preoccupations during the last 25 years -- including my efforts on nuclear non-proliferation and disarmament, and to generate a more effective global response to genocide and other mass atrocity crimes – have 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 change on things about which I care deeply.

And I’m sure that’s the case for a great many of you in this room, who have had many and varied careers  and experiences since we all worked our way along that winding trail from ILM to Con Law II. 

I’m not sure I fully appreciated at the time the rigour and quality of the education at this Law School, and the professional values it instilled in me, and the importance of the personal relationships that were forged there.  But looking back now, from this vantage point 40-50 years later, I do appreciate that experience, do value it, and am very proud of my status as an alumnus of this great School.

And I think I can say, looking around this room this evening, that’s true for everyone here.