BAQ 2023 Annual Conference Keynote Address: How Things Have Changed
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The Honourable Patrick Keane AC KC
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Tuesday 21st February, 2023
BAQ 2023 Annual Conference Keynote Address: How Things Have Changed
The following is the Keynote address from the Honourable Patrick Keane AC KC at the Bar Association of Queensland Annual Conference on 3 March 2023.
Colleagues,
Human beings derive enormous satisfaction from solving problems. If it may be said that it is the exercise of our capacity to solve the problems that life on our planet throws up that has defined us as a species, then the satisfaction we derive from solving problems is integral to our evolutionary success. It is just as well that we enjoy problem solving so much, because we are the only species that actively goes out and creates problems that we then have to solve. And the most difficult problems that we create are with each other.
Except for the use of force, as in war, or other forms of organised violence, there is no exercise of problem-solving on a societal scale that is more demanding or rigorous or intense than litigation. Solving problems peacefully, honestly and reasonably is what our profession does. And that is hard on us. To help peacefully to solve the problems that beset our fellow citizens is also great privilege. It is a privilege that is jealously guarded. Our community takes care to ensure is exercised only by those who can be trusted not to abuse it. And so we have been organised within our legal tradition over the last thousand years into the profession of the Bar, a profession that in our tradition, encompasses the judiciary which is also an organ of the State.
I have had the privilege of participating in the problem-solving work of our profession now for the best part of fifty years. I am honoured to have been asked to open your conference this year by saying something about the changes I have observed in the work of our profession over that time.
It is, I think, worth taking a moment at the beginning of our conference first to celebrate some of the respects in which our profession finds itself working within a more just society than it was fifty years ago, and then to say something about the challenges to our profession that have emerged, and to suggest that the need to meet those challenges has not changed the essential things that make the work of the advocate worthwhile.
“The arc of the moral universe is long, but it bends towards justice”
To start the conference on an upbeat, I want to mention some of the profound societal changes that affect us as lawyers and citizens and that have been overwhelmingly for the good. It is only right and proper that we should remind ourselves that cynicism about the possibility of improving the quality of justice is quite misplaced. Things can, and do, get better. And this should give us heart. As Martin Luther King Jr., an upbeat guy if ever there was one, famously said: “The arc of the moral universe is long, but it bends towards justice”[1]. There are a number of respects in which that great insight has been vindicated in this country over the last half‑century particularly with a focus on our justice system.
We are undoubtedly a fairer, and happier society and profession than we were in the mid‑20th Century when there were no women judges, no non‑Anglo‑Celtic judges, and very, very few women lawyers, or non‑white lawyers.
In the 1970’s, so far as the Queensland judiciary were concerned, it is most unlikely that the idea that diversity might be a good thing occurred to anybody. If it occurred to anybody at all, began and ended with the tacit understanding that one in four Supreme Court judges should be a Catholic. This understanding, observed without controversy was the legacy of the Irish‑Catholic domination of the Labor Party governments that held office in Queensland from 1915 to 1957, with the exception of the three years of the Moore Liberal government at the beginning of the 1930s. During those years, Irish Catholics constituted about a quarter of the State’s population. No one would even have thought about this protocol since 1980. But when we debate today the need for greater diversity on the Bench, and people make the strong points that the courts are not representative institutions and that the legitimacy of the courts derives from the legal expertise and other qualities of those appointed to the role, it may also be said with equal force, at least in historical terms, that it has been recognised that it socially desirable that the courts before whom the citizenry are judged should look like the citizenry. In that way, we reduce the risk that the judiciary may be perceived, as it probably was for much of the 19th Century by most of Queensland’s white settlers, as the enforcement arm of the ruling class and, from the point of view of indigenous Queenslanders, as that of an occupying power. However that debate stands at the current time, there can be no doubt that our courts are much more diverse than was the case for most of the 20th Century and that this is a good thing.
The angry old men who seemed to dominate the Bench in my first decade at the Bar have been replaced almost entirely by more temperate souls. In my first couple of decades at the bar, magistrates and judges were all men and white – many were older than their years, and some of them seemed to be always angry about things that could only be guessed at, that only rarely had much to do with competence, or lack thereof, of the lawyers appearing before them. They presided over their courts with a brutality that called to mind Churchill’s description of the Royal Navy in the time of Nelson as a place of “rum, sodomy and the lash”.
Many of the senior barristers I knew dreaded the phone call from the Attorney‑General offering them a judicial appointment.
I should be clear that I am not suggesting that all of the judges of those times exhibited these behaviours – it just seemed that way. That was because the unpleasant ones even though there were only a tiny handful of them, made life for lawyers so very unpleasant. Unfortunately, these unpleasant judges set the general mood, even though the vast majority of judges were thoroughly decent men and a pleasure to appear before. One consequence of this unpleasantness was that no barrister wanted to risk being like them; which meant that few of us actually wanted to be a judge if being a judge could make one so unhappy. Many of the senior barristers I knew dreaded the phone call from the Attorney‑General offering them a judicial appointment; and that reluctance was not just about money and the voluntary choice of a life of genteel poverty.
To put that unpleasantness into a broader perspective, it should be said that the business of conflict resolution is inherently very stressful. Litigation, is simply awful for those engaged in it as litigants. In an address to the Association of the Bar of the City of New York in 1921, Judge Learned Hand said: “After now some dozen years of experience, I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death”[2]. That great judge was speaking at a time when it was a momentous, and rare, thing to haul one’s fellow citizen into court. At that time, litigation was generally regarded as something to be dreaded, and it was rare for law‑abiding citizens to have anything to do with the courts. Now, it is not uncommon to see someone hauled into the courtroom for having made an allegedly defamatory statement on their Instagram story[3]. And our rights conscious fellow citizens demand access to justice I will say something more about that later.
While litigation is usually most stressful for those who are the parties to the conflict, it is also very stressful for those individuals who are tasked with resolving the conflicts. In most situations of social conflict, at least one of the parties is being unreasonable; often both are. Reconciliation of their positions may sometimes seem to the judge to be something beyond human wisdom, and the frustration engendered by that perception is not rendered any more bearable when the parties or their lawyers seem unable to take a hint as to the likely outcome of the contest.
Now, we all agree that bullying behaviour is simply unacceptable, even when it is a symptom of an understandable desire for greater efficiency, or even a cry of pain from a fundamentally decent soul in torment. There can be little doubt that the change in the atmosphere in our courtrooms is due in no small part to the greater diversity of our judges. But having said that, we should, I think, also acknowledge that there was a serious and important reason for some of the anger of the old male judges apart from problems of testosterone, ill‑health and poor diet. That reason is endemic to the courts as the community’s principal conflict resolution mechanism.
So in defence of the angry old male judges I have spoken about, it is fair to say that they were, in their own mid‑20th Century way, howling at human folly and unreasonableness. They were giving voice, albeit in a most unhelpful way, to an understandable human reaction to the difficult, sometimes excessive, demands placed upon the peacemaker by their unreasonable fellow citizens. But we now recognise that judicial strategies for coping with the stresses involved in the role of peacemaker must not include sharing our pain with the people we are trying to help.
And, I am very much of the view that things have got better. Although not everyone thinks so. In 2018, the Age newspaper reported that more than 856 respondents to a survey of the Victorian Bar Association’s members in relation to health and safety claimed to have been bullied by a judge or magistrate in a courtroom. The survey concluded that judicial bullying was the biggest issue of concern when barristers were asked to detail how their working life could be improved – outranking even the timely payment of fees. Two-thirds of the female barristers who responded to the survey reported that they had been bullied from the Bench, while 58 per cent of their male counterparts claimed that they had also been subjected to demeaning or humiliating remarks. The most common form of bullying was said to be “grossly discourteous and disrespectful behaviour from the Bench.” – rudeness, sarcasm and shouting.
Now I have to say that I wonder whether the results of this survey reflect cultural issues peculiar to Victoria, and Victoria is peculiar. While no one should play down the problem of bullying in any professional context, we need to keep things in perspective, and to recognise that instances of judicial bullying, the judicial bully does not any longer set the prevailing mood.
On International Women’s Day in 2019, Baroness Hale of Richmond gave an interview to The Times of London in which her Ladyship said:
“My impression is that judges are now a great deal more courteous and patient and respectful of everybody in front of them, both lawyers and litigants, than when I was at the Bar.”
I have to say that Lady Hale’s view is very much my own. Her Ladyship went on to say:
“Being an advocate requires considerable courage. You’ve got to stand up t the court, to your opponents, your clients – and it requires courage to overcome the inevitable stage fright of appearing in court.”
I agree with Lady Hale about that as well. The need for advocates to be courageous is something that is no less essential today than it was 50 years ago – or, for that matter, 500 years ago. Stage fright or lack of preparation, an absence of judicial sympathy for your plight, and the rigorous expression of righteous frustration with your performance has never been, and should not be, mistaken for judicial bullying.
We are also undoubtedly a happier and freer and more compassionate profession (and society) than we were when I first began my time as an articled clerk. Then, in Queensland, gay people were treated as criminals and were persecuted by the police with social licence to do so. The courts were slower to see the grave injustice in this than was society at large. That was the case both here, and in the United States.
We are also undoubtedly a happier and freer and more compassionate profession (and society) than we were when I first began my time as an articled clerk.
In 1986, the Supreme Court of the United Statesdecided in Bowers v Hardwick[4], by a 5-4 majority, that a Georgia statute that made sodomy a crime was not unconstitutional. One of the majority justices was Lewis Powell. In a conference with his fellow Justices about the case, he remarked that he had never met a homosexual. Justice Harry Blackman said in response: “Look around your chambers”. And, of course, one of Justice Powell’s then clerks was gay, as were several of the young men who had previously worked for him.
One of those clerks was Mr Paul Smith who, in 2003, argued and won the landmark case of Lawrence v Texas[5] which over‑ruled Bowers v Hardwick. And in January 2013, Mr Paul Smith stood before Chief Justice Roberts and applied, successfully, for the admission to the Bar of the Supreme Court of the United States of about 30 members of the National LGBT Bar Association. The lawyers stood, and the Chief Justice gave his customary cordial welcome to new members of the Supreme Court Bar.
I mention this episode not simply to give us all a feel‑good moment, and to make the point that we have all come a long way from a time of what was, in retrospect, an irrational and terrible repression. I want to make the additional point that it is something worth celebrating that we, in Australia, did not need a Supreme Court to overturn as unconstitutional a statute made by the people in order to remedy social injustice. Holding that a statute is invalid because it is unconstitutional is not something to be done lightly. It is, after all, the negation of the will of the people expressed through their elected representatives.
When now we contemplate the overturning of Roe v Wade[6], and the implications of the US Supreme Court’s reasons for doing so in relation to the other rights based on constitutional notions of privacy, it throws into sharp relief the fragile basis of those rights founded as they are on the philosophical outlook of a handful of judges. When one considers the decisions of the Supreme Court that “solve” broadly political problems, one may be inspired or depressed by the outcomes, depending on one’s political outlook. But whatever one’s views about the outcomes in these decisions, one cannot help noticing from an Australian perspective, that in these momentous cases, the outcome was not one which we would expect to be the product of a judicial decision rather than a decision of the representative branches of government. The American dependence on the courts has contributed to the evident infantilisation of American politics at the federal level, and, in turn, to the more intensive politicisation of the Supreme Court itself.
Again and again over the last 50 years I have been reassured of the vibrancy of Australian democracy where issues of great controversy ‑ such as marriage equality ‑ have been decided by our people rather than by the courts. The contrast with the United States ‑ our cultural lodestar in so many respects ‑ is remarkable and comforting. Representative politics in that nation is so sclerotic, and has been in this state for so long, that issues that divide political parties are now routinely resolved by the Supreme Court because the political process is incapable of resolving them, marriage equality again being the most obvious example. Abortion law is another: the Supreme Court had to discover in the silences of the Constitution a right to abortion, the limits of which it has struggled subsequently define. Here, our Parliaments chosen by the people have addressed the problem on the basis of a broad social consensus expressed in the representative institutions of our democracy.
Again and again over the last 50 years I have been reassured of the vibrancy of Australian democracy where issues of great controversy ‑ such as marriage equality ‑ have been decided by our people rather than by the courts.
In the Washington Post, former Justice John Paul Stevens, speaking of his experience on the Supreme Court, said: “It happens so often that you have to get used to losing”. Even America’s highest judges seem naturally to think in terms of winning or losing. In contrast, in Australia, judges do not have to get used to losing. It is still, I think, a universally accepted tenet of our professional ethos as judges that there is nothing in the contest for us to lose. We are not seeking to achieve any political agenda: we are not appointed with that in mind; and that is certainly not how we see our role.
In Australia, we have not yet accepted that the work of our courts is simply politics by another means. The approach of the Australian judiciary has been at once more modest in its view of the role of the judiciary as the provider of solutions to society’s problems, and more respectful of the democratic values implicit in the notion of “the people” than that of our US counterparts.
In the United States, issues about judicial appointments divide political parties and the nation. There, the political branches of government, already seriously weakened by deep divisions of interests and values, have been further drained of vigour and resolution by an environment which both holds them captive and polarises their constituencies even more deeply in a way that has not yet blighted our public life. We need to avoid a judicial slide into political partisanship. CNN’s exit polling at the 2016 US Presidential election disclosed that, for the 56% of those who voted for the Republican candidate, Supreme Court appointments were the most important factor in their vote, with only 37% saying that this issue was not important to them at all[7]. The Republican candidate at that election well understood the state of affairs reflected in these figures. Indeed, his appreciation of the point was a major part of his political strategy. He told a rally in July 2016 that even if conservative voters didn’t like him, they would have to vote for him anyway. “You know why?” he asked: “Supreme Court Judges”, he answered[8]. And in this regard, as President, he proved as good as his word, appointing Supreme and Federal Court judges to resounding applause from his political base.
An area of our national life that we cannot celebrate concerns reconciliation with Australia’s indigenous people. This issue has not been resolved by the courts, and ultimately it cannot be. Mabo[9], the great landmark that it was, did not even begin to address the problems of historical dispossession of indigenous Australians from their traditional lands where dispossession was total, Mabo offered no remedy. What is better now than 40 years ago is that there is a broad societal awareness that we need reconciliation with Indigenous Australians, and our good and decent people are going about just that in their democratic way.
Technology
All the societal changes I have spoken about are important; but for us as lawyers and citizens of Australia and the world, the most significant change over the last 30 years has been in relation to the extent and intensity of our social interaction with each other through technological advances. The extent to which we are now so closely and intensely associated by technology means that the lives we are now living are like nothing in previous human experience. The closest analogy I can think of from the past is with the lives of the citizens of small ancient cities, like the Athens of Socrates, villages in which every citizen knew the business of every other citizen. And subject to intervention by authoritarian states such as China and Russia, this new global village does not respect national borders. In this ecosystem, the opportunity for privacy – the right just to be left alone – is rapidly disappearing.
The technological advances that began in the 20th Century have aggravated, rather than mitigated, the problem of distinguishing between the public and the private aspects of our lives. In earlier and simpler times, people knew that they were crossing the line between the private and the public when they entered the agora or the forum or the town hall, or even when they appeared on television, to engage in debate. The physical fact of the public location of the activity both marked the activity as a matter of public concern and helps to ensure a minimum level of civility.
The coming of the digital age has, in large part, erased the gentling effect of physical prompts to civility. Civility is an indispensable virtue of democracy. It is the virtue that helps us to accept the unsatisfactory possibility that we may not be right about an issue, and that those who think differently may nevertheless be decent and honourable, and not to be despised.
Civility is an indispensable virtue of democracy.
Online communication, for all its intensity and ubiquity, is an isolated and isolating activity conducted without the ordinary social constraints provided by the physical presence of another human being and the possibility of provoking an uncivil reaction. The Information Revolution has largely removed these physical markers. Without these physical cues, there is a need to articulate a stable theoretical basis for drawing that crucial boundary between the private and the public. This need becomes at once more imperative and yet more difficult.
The problems that technological change will continue to create, combined with the concomitant wholesale and willing abandonment of privacy as a bedrock societal value, mean that the development of solutions to those problems will be the great challenge for your generation and the next. We cannot even say that we know what those changes will be, not with any certainty. Only one thing is certain. You will not be able to hide from the problem. You will not be able, for example, to emulate Justice Louis Brandeis of the Supreme Court who reacted to the introduction of the telephone at the beginning of the 20th Century by refusing to have one in his home and refusing to use the one that was installed in his chambers.
Changes in Workload
Substantial changes have been taking place in the nature of the work coming before courts in Australasia, with our courts being called upon more and more to regulate the exercise of power, whether by the State or by our fellow citizens over each other, to an extent that would have been unthinkable when I began my career in the law. Changes in the workload of the courts reflect the broad tide of cultural change that is itself reflected in the changing expectations held by our fellow citizens of what the courts can, and should, do for them. On the civil side, the litigation that we oversee reflects the demands of a diverse, prosperous and rights‑conscious people who are determined to have their own way and to enlist the power of the State to do so.
The great change since the 1960s has been the rise of “access to justice” as a mantra of public policy. Litigation is now widely regarded as a good thing – even something to be encouraged as a matter of public policy – as class actions provide a mechanism for the enforcement of consumer protection laws where the executive government is not sufficiently resourced to do so.
In one sense, it may be said to be a credit to the judicial institutions which we serve that the community has simply assumed that all kinds of social questions are amenable to solution by the courts. The open-ness and fairness and reasonableness of our courts make them attractive places for our fellow citizen to press their claims on each other.
And so the judicial branch of government, and our profession, is busier than ever before in areas of social concern with which we did not previously grapple as an institution of government.
Domestic Violence
For reasons at which we, as lawyers, can only guess, issues of domestic violence and the sexual abuse of children are now among the major calls upon the time and resources of our courts. Great challenges have been presented to this generation of lawyers and judges by the revelation of the extent of these problems in institutions, but more often within the family. The courts are at the front line of these challenges. During most of the time that I was at the Bar, these problems were largely invisible. Domestic violence was ignored, not just by the police and the courts, but by society at large: no one wanted to be involved in a “domestic”.
The instinctive reaction in all liberal democracies in which these problems have come to light has been to bring the power of the State to bear upon perpetrators through the machinery of the criminal law. Whether the criminal law is the instrument of State power best equipped to effect that solution has not seriously been debated. But whatever instrument were to be chosen to address the issue, it is inconceivable that the courts would not have some supervisory role. The fact is, however, that the courts have become the front line where our communities seek to resolve these issues.
When I began my time in the law, the problems of domestic violence and the sexual abuse of children were kept secret and out of the courts by the intimidation practised by the perpetrators and the sense of helplessness of their victims. While the very power imbalance between perpetrator and victim that allowed these crimes to be committed in the first place also helped to keep the crimes private, it must be acknowledged that a significant contribution to shielding perpetrators of these crimes from the criminal law was also made by rules devised by ancient authorities, like Sir Matthew Hale, regarded as the great sages of the common law, such as the need for corroboration of a female or child complainant.
For a long time, these long established rules seriously impeded the prosecution of offenders in cases where complainants were willing to come forward. These rules were rigorously enforced by the courts for a significant part of my professional life, in deference to the long‑standing scepticism of the great sages of the common law about the reliability of the evidence of complainants in cases of sexual assault.
Legislatures lost patience, both with judicial scepticism about complainants in sex cases, and with the assumption that judges are possessed of a wisdom about where the truth might lie in such cases that surpasses the understanding of everyone else. And that was fair enough. Why would one think that people in the privileged position of judges, who have, almost axiomatically, enjoyed privileged and nurturing upbringings, know more about the dark horrors of intra‑family child abuse, than everyone else? It certainly is not because we had any professional training in these matters. And to the extent that these assumptions were characteristically made by appellate courts, rather than by judges at the coal face, those assumptions were not grounded in practical experience.
We can now, I think, accept that the difficulty of the courts, especially the appellate courts, in letting go of the assumptions that we inherited from those we venerated as the great sages of the common law, as to the inherent mendacity of women and children and as to the superiority of judicial wisdom about these aspects of human behaviour, have not been our superior courts’ finest moments. With the benefit of hindsight, the Royal Commission into Institutional Responses to Child Sexual Abuse, and the numerous taskforces and working groups of domestic and family violence, only the most reactionary traditionalists now harbour any concern that justice has not been well served by the retreat from these hoary assumptions led by our legislatures.
Rights‑conscious citizens
Until well after the Second World War, for most of the populace, courts were engines of social control, not social expression. The courts were institutions primarily concerned with the maintenance of the peace, to maintain order among the more rambunctious of our citizens. Not for nothing was the Magistrates Court then known among ordinary people as the “Police Court”.
Today, our confident and rights‑conscious citizens have a very different attitude to the courts. There can be no doubt that the zeitgeist has been captured by the demand for access to justice and that it is the courts that are expected to provide it. The notion that litigation is a necessary evil, not to be promoted by the courts – whose sole role was to resolve disputes – has been replaced by the premise that litigation is to be encouraged as the necessary means to ensure access to justice.
In my time, the demand upon the State to provide dispute resolution services overwhelmed the capacity of the ordinary courts. Quasi‑judicial tribunals such as QCAT were called into existence because, as those of us who were in practice as lawyers 30 years ago know, the ordinary courts were simply incapable of coping with the need for resolution in the vast range of disputes affecting our citizens that now require determination by organs of the State.
In the last 50 years, all our lives have become dependent upon exercises of State power through administrative decisions which are, as often as not, apt to confer benefits and privileges that improve the quality of the lives of our citizens. Now an extensive body of administrative law serves to ensure that the administrative apparatus of the modern State meets the responsibilities which its citizens demand of it.
We should not view the proliferation of administrative tribunals with alarm. Rather, that proliferation is an expression of the success of our society in showering rights upon our citizens in a way that could not have been imagined even in 1970, and of our community’s determination to ensure that those rights are meaningful in improving the lives of our citizens.
A pathology of these happy developments, though, has been the development of a litigation culture in which every reverse or grievance is perceived as an occasion to seek orders from a court. While the role of the judiciary taught to me at law school was the impartial quelling of controversies between citizens, or between citizens and other organs of the State, the courts are now being drawn, inexorably, into a broader role as the synthesisers of concord within the community. By the beginning of the last decade of the 20th Century, the pursuit of the access to justice by our rights-conscious fellow citizens drove a litigation explosion.
… the courts are now being drawn, inexorably, into a broader role as the synthesisers of concord within the community.
We barristers at the time enjoyed the financial benefits of this explosion of litigation: personal injuries, building cases, planning and local government and commercial cases all boomed so that the Queensland Bar was busier than it had ever been. Delays and backlogs became endemic, especially in the Supreme Court. The public became understandably impatient with the delays, and in the 1990’s for several years a Ligation Reform Commission comprised of members of the newly established Court of Appeal sought to stream line litigation. The UCPR was a major reform that emerged from this era.
The courts responded heroically, but the problems were effectively resolved only by the emergence of alternative dispute resolution and the introduction of QCAT. And the emergence of these solutions to the problems generated by the rights explosion changed radically the nature of practice at the Bar. Trials became even more rare than in the bad old days of the great delays as mediation became even more effective. It has been, for at least a quarter of a century, the availability of ADR which has allowed the Courts to manage their work load and incidentally to empower our fellow citizens themselves to resolve their disputes. The Bar has had to develop different skills as a result.
All this means, however, that today’s barristers spend much less time actually in court than we did back in the day. And the growing emphasis on specialization within the solicitors’ branch of the profession has meant that solicitors value advice on their specialty only from barristers who are equally expert in their particular field. So there are fewer all-rounders today than even three decades ago when every one of the dozen or so acknowledged leaders of the Queensland Bar was an all-rounder.
But some things don’t change. Queensland’s barristers are still, in my experience, second to none. That is certainly so in relation to civil work. Our criminal bar leads the nation as it has since it was inspired by the likes of Casey and Brennan and Cuthbert and Sturgess and Spender.
Queensland’s barristers are still, in my experience, second to none.
The great specialist skill is still advocacy. Advocacy is not just the confidence to stand up and fight a case in court; real competence is much more than self confidence. It is also the knowledge and skill to make the argument that persuades. Even, or maybe especially, in the context of ADR, the succinct but compelling argument is as valuable as it ever has been in any court. And it is made by a person sufficiently independent of the client to command the respect of the other side.
As Sir Harry Gibbs put it, the job of an advocate is to say what can be said for the client, and to say it well. That is still the essence of the barrister’s task.
It is not just because the work of the Bar is so well rewarded that you in this room have found yourselves drawn into the all-consuming demands of this life. Rather, it is because it can be the most exciting and fulfilling work available to us problem solvers. It is still true to say, as Sir Gerard Brennan said to the Australian Bar Association in 1996:
“A life at the Bar [is] replete with its triumphs and tragedies, its wins and its losses, the friendships forged and battles fought, the long nights of reading and the flashes of inspiration that sometimes fail in their application. The Bar captures the mind and governs the life of those who join it. Its rewards are sometimes financially parsimonious. It is a profession to be entered only by those who have a passionate desire to be a barrister. But that is the best of all reasons. For those, the experience of practice does not disappoint.”
It has long been my view that only we barristers really understand the intensity of the pressures involved in doing what we do. Even our nearest and dearest have only a rough idea. But there are some others who can make an educated guess. They are all the other lawyers, solicitors and academics who choose not to be advocates. That choice reflects, to some extent at least, just how hard it can be to say what can be said for the client and to say it well. It is hard to be the tip of the spear and the hard point in the shield; but so long as we retain the adversarial mode of dispute resolution they will be necessary features of our particular system of problem solving. But if you enjoy solving problems of the most difficult kind you wouldn’t want to do anything else.
Thank you for your attention.
[1] Martin Luke King Jr paraphrased that from a sermon delivered by an abolitionist minister, Theodore Parker, in 1853. He said, “I do not pretend to understand the moral universe. The arc is a long one. My eye reaches but little ways. I cannot calculate the curve and complete the figure by experience of sight. I can divine it by conscience. And from what I see I am sure it bends toward justice.”
[2] Capper, “Maintenance and Champerty in Australia – Litigation in Support of Funding!” (2007) 26 Civil Justice Quarterly 288 at 290-291.
[3] See BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111.
[7] Bump, ‘A quarter of Republicans voted for Trump to get Supreme Court picks – and it paid off’, The Washington Post (June 26, 2018), available at <https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/>.
[8] ‘America’s highest court needs term limits’, The Economist (September 15, 2018), available at <https://www.economist.com/leaders/2018/09/15/americas-highest-court-needs-term-limits>.
