Speech by Justice Logan – UQLS Annual Drinks with the Profession

The Society must be in robust, good financial health! I make that observation as its sometime Treasurer. I held that office in 1978. To hold a function like this then would have been quite a leap of faith and not just financially. Organised engagement with the practising profession was rare enough amongst the academic staff in 1978, let alone the student body. I commend the Society on its initiative.

1978 was for me a memorable year and not just for the welcome relief that comes from completing “The Paper Chase”.¹ My wife and I were then fellow law students and residents in neighbouring colleges. That happy coincidence provided occasion for what has proved an enduring friendship that later matrimony has not diminished! Another highlight was an appearance which “The Ghost Who Walks”, that great pulp fiction character, “The Phantom”, made on campus that year.

“HECS” did not then exist but “TEAS”, Tertiary Education Assistance Allowance, did. Many on campus considered it to be manifestly inadequate. That provoked a large campus rally which evolved into a street march. Street marches without the permission of the Police Commissioner, then the notorious Terry Lewis, were illegal. This march did not have a permit.

As the march, protest banners flying, progressed along Sir Fred Schonell Drive towards the campus boundary a large group of blue uniformed police assembled, many lines deep, across that road, just outside the boundary. When the head of the march was about 400 metres away from the police lines, a white utility came from a side street and halted between the two. From it descended The Phantom, fully costumed and four (not so) pygmy bearers, whose resemblance to certain law students was not completely disguised by their hessian lap laps and a liberal full body coating of brown boot polish! The bearers hoisted The Phantom up onto an improvised sedan chair, the seat of which looked curiously similar to those then to be found in the Law Library. They carried him down to the marchers. There, just short of its first rank, they deposited him. In a loud voice The Phantom proclaimed, “Stop! I have kept the peace in the jungle for 400 years. Disperse and go back to your caves!” The march did indeed stop. Having achieved this, The Phantom strode up the Drive, escorted behind by his pygmies. They stopped just short of the police line. This is what The Phantom then said. “Disperse Blue Wambesi! I have kept the peace in the jungle for 400 years. I have no need of your assistance.” At that point, the senior police officer read the “Riot Act” proclamation not to the marchers who remained halted, gazing now in amazement as events unfolded, but to The Phantom and his pygmy bearers. As I recall, and I was an observer, that inspired piece of street theatre diffused tensions completely.

The choice of “The Shadow Lounge” brings to mind another great pulp fiction character, “The Shadow”. That association makes this an apt venue for a legal professional function. “The Shadow” was a character created in the 1930’s, a crime fighting vigilante who had power to cloud men’s minds so they could not see him. He began life in print and later in that decade became the subject of a radio drama series. Much later, in 1994, Alec Baldwin reprised the role in a film of that name. Each episode in the radio series was introduced by a narrator who gravely intoned, “Who knows what evil lurks in the hearts of men? The Shadow knows!” The narrator concluded each episode with this reminder, “The weed of crime bears bitter fruit. Crime does not pay…. The Shadow knows!”

It is not only The Shadow who knows what evil lurks in the hearts of men. In the course of a memorable address to the Women Lawyers’ Association of New South Wales and the Law Society of Newcastle in 2005 The Hon Michael McHugh AC, then a Justice of the High Court observed:

Given the breadth of legal and factual issues that come before the Court, I am always amused to hear or read statements that the Justices of the High Court live in an ivory tower deciding abstract questions of law and have no understanding of the real world. There is almost no aspect of human behaviour that does not come before the Court either in appeals or special leave applications. The Court does not of course see witnesses but it reads the evidence they give. And over the range of cases that come before the Court that evidence reveals just about the whole spectrum of human behaviour. You would not have to be on the High Court for very long before you concluded that the only limit to human evil, depravity and dishonesty is physical impossibility. Nor would you have to be there very long before you concluded that there is no limit to human gullibility.²

Though the High Court judges do not live in an ivory tower, they do occupy a special place in our judicial hierarchy. Whether the roles in the Australian judicial hierarchy may be described in a way which once commended itself to a Lord Justice of Appeal in relation to the then hierarchy for England and Wales is moot — The job of a trial judge is to be quick, courteous and wrong. That is not to say that the role of the Court of Appeal is to be slow, rude and right, for that would be usurping the role of the House of Lords!³

I refrain from stating that there is exact Australian analogy for two reasons:

• firstly and perhaps venally, the High Court has presently reserved judgement in two cases in which I was either a trial or appeal judge, so I form part of their Honour’s “statutory prey”⁴ ; and

• secondly, there being no permanent Commonwealth intermediate appellate court, I regularly sit in both original and appellate jurisdiction and so would have to confess to a form of judicial schizophrenia were I to concede that the roles here were indeed as stated.

What I can record is that the encounter with the spectrum of human behaviour is not confined to High Court judges or even just to the judicial branch of the profession. All members of the profession come to encounter the evils, great and small, civil and criminal, that lurk in the hearts of men. That is often what lurks behind the distilled prose of the law reports that grace the shelves at the Law Library or, ever increasingly these days, the databases of cyberspace.

The difference between pulp fiction and fact is that in our country those evils are addressed not by vigilantes, however well intentioned, but by the rule of law in public courts presided over by independent judicial officers in which litigant in person or legal representative each has a right of audience. Events unfolding around the world today serve increasingly to remind us just how precious the inheritance is that has given us that system.

None of the other learned professions participate as intimately and essentially, via the duty owed to courts⁵ and pervasively in a branch of government as does the legal profession; in our case, in the judicial branch of government.

Redress of evils apart, the legal profession daily gives the rule of law its practical operation in applying legal principles in the solution and facilitation of a myriad of personal and commercial dealings.

In all of these aspects of professional life there is much satisfaction to be had in the service of civilised society.

As members and prospective members of the profession we have a duty to protect and enhance our system of justice according to law and in God’s good time to hand it over to our successors. There are many ways of doing this.

Insistence on judicial appointment on merit is one. Assistance in the professional entry and development of worthy young men and women, whatever their background may be, is another. So, too, is continuing adherence to standards of ethical professional conduct, which includes undertaking at reduced or even no fee one’s share of worthy cases for the disadvantaged. Yet another is by deploying our skills by engagement not only in administering the affairs of the profession but also in a host of voluntary roles in the wider community.

May this function also make its contribution to fulfilling that duty. In this a Latin maxim still has a role to play. In vino veritas!

Footnotes

1. John Jay Osborn’s “The Paper Chase”, Houghton Mifflin, 1971, a novel based on a student’s experience at the Harvard Law School at that time, which was faithfully adapted into a film of that name in 1973, had many powerful parallels for my generation of students at the University of Queensland Law School.
2. http://www.womenlawyersnsw.org.au/FileUpload/WORKING_AS_A_HIGH_COURT_JUSTICE.pdf
3. Asquith LJ, ‘Some Aspects of the Work of the Court of Appeal’ (1950) 1 Journal of the Society of Public Teachers of Law 350 at 350.
4. Ibid.
5. As to this, see, recently, The Hon Marilyn Warren, AC, Chief Justice of Victoria, The Duty Owed to the Court: The Overarching Purpose of Dispute Resolution in Australia, Speech delivered at the Bar Association of Queensland Annual Conference, 6 March 2011, http://www.supremecourt.vic.gov.au/wps/wcm/connect/justlib/Supreme+Court/resources/3/c/3c87ba8045ff93b8bc85bf3676cca658/Chief+Justice+QLD+Bar+Assoc.pdf