Wilcox, Murray; Burton, Tess --- "Stickybeak: No Stranger to Controversy" [2007] AltLawJl 5; (2007) 32(1) Alternative Law Journal 16

STICKYBEAK
No stranger to controversy

Justice Murray Wilcox retired from the Federal Court in October 2006 after 22 years on the bench. His final decision was the interim judgment in the Single Noongar case. However Justice Wilcox has presided over many other historic cases including the dispute between the Maritime Union of Australia and Patrick Stevedores.

He spoke with Tess Burton, a native title lawyer from Western Australia.

Q: Many of the media reports commenting on your retirement characterised you as being ‘no stranger to controversy’. You said in your farewell address to the Federal Court that ‘I’ve never been good at shutting up’. Would you describe yourself as a controversial figure?

Of course I am aware of a few controversies, but what I do feel important is to sometimes say what needs to be said. I am a strong believer in the view that judges should not express political opinions and throughout the whole of my time as a judge I refrained from doing that. Obviously judges, like most people in the community, have political opinions and they express them privately amongst family and friends, but I think you do not do so publicly because it tends to undermine the perception of the court as independent. But, on the other hand, if in a case it appears that there is something wrong with the system, such as the administration of the court, and that can sometimes happen, or the administration inside a government department and it is borne out by the facts of the case, providing that you have gone into it thoroughly enough to know what you are talking about, I think that we ex-judges have a duty to the public to say so. If the material is there to justify a comment on the way the system is operating then I think judges should be prepared to make that sort of comment.

Q: One thing I have been struck by in reading your judgment in Single Noongar, and listening to your media interviews, is that you seem very aware of your audience and place a lot of emphasis on communicating very clearly and directly.

Well, I think that is an important thing for judges to do. Traditionally there has been an attitude in the law that it acts in some mysterious way and if non-lawyers don’t understand it, well that’s their problem. I believe that attitude is changing. I certainly have never accepted that attitude. My view is that judges are there to serve the community, they are paid for by the community, the courts are quite expensive to run, and I think the community is entitled to have judges who will appreciate the need for proper communication of what they are doing. They should tell the litigants what is going to happen, what the litigants can expect when they come to court, as it is a very difficult and challenging thing to be a litigant in the court. Judges should realise this. I think it is necessary to set peoples’ minds at ease as best you can, make them feel that they are understood and part of the system and then you should explain to them why you have made rulings and why you’ve made particular decisions. It doesn’t mean they will be happy with it — somebody’s got to lose — but I think it is very important they understand why it has happened. I think that the mystique of the law is changing and it is about time it disappeared forever.

Q: In their media comments as to their reasons for appealing the Single Noongar decision, both the Commonwealth Attorney-General and the Western Australian Attorney-General pointed to what they see as an uncertainty in native title jurisprudence. In your opinion, is the law of native title unclear?

The High Court has taken some trouble to map out the principles of native title and perhaps the most useful cases in terms of precedents are the Yorta Yorta and the Ward decisions. The High Court went further than simply dealing with the facts that arose in those particular cases and, as is the normal thing for appellate courts, they sought to lay out a set of principles and said a lot of things that I personally have found very useful. Since that time, they have tended to refuse special leave in native title cases. I think the High Court itself takes the view that they have had a pretty good go at laying down the principles.

Are there uncertainties? There are always uncertainties in the application of understood principles to new factual situations and it is the job of the lower courts to try to do this. If they get it wrong, that is why you have an appeal process. I myself don’t think that the principles are unclear. What exactly the Western Australian government and the Commonwealth government have in mind I don’t know. They didn’t say. Let’s leave it at that.

Q: Recently you commented that, while state governments have a legitimate interest in the connection materials presented by native title claimants, they are ‘over-demanding in the detail that they require’. To what extent is this a consequence of a mediation process in which native title parties seek recognition of their rights from respondent parties whose rights are assured?

I don’t know that it matters whether it is being mediated or is a matter of direct negotiation. But if state governments — and here let me make it clear that I am talking about all state governments and certainly not particularly Western Australia — if a state government is in effect saying that ‘we can’t discuss in any meaningful way an out of court settlement unless you come along here and you can sort of prove to us every detail your case’, then the burden of getting a negotiated agreement for an applicant is enormous because the detail of a native title case is normally quite voluminous. It involves evidence from a considerable number of people and very detailed evidence. In the Noongar case there were 30 Aboriginal witnesses, which I think is a lower number compared with many cases, but even so, the task of assembling that evidence would have been enormous because you have to cover a huge variety of pieces of information. If you have to do that at the negotiation stage, considering that the cost and the time taken will be extensive, the processing of the claim is going to be extremely slow. Sometimes I have thought, surely a relatively quick look at a group of people would say ‘look, we don’t know exactly who is descended from who here, but we know this is a recognised Aboriginal group as far back as we have any knowledge of it and we are confident that the claim group making the claim is the right group’.

Q: You have said that you found the historical accounts of the Noongar people made for compelling reading. What was it that made the historical material so fascinating for you?

I think it was because they were so direct and they — the people that I read at length, who are the people that are quoted extensively in my judgment — were good observers. They were interested in the Aboriginal people that were there at the time, they got to know some of them, some of them very well. Generally, they tended to take an intelligent interest in the Aboriginal community and they did not judge people in the sense that ‘this is wrong, this does not accord with our views’. Of course what they described, they described through their own European outlook and it was inevitable that they would have looked at things through their own experiences. But they weren’t preachy, they described what happened and generally didn’t make any moral comments on it.

It’s the directness and freshness of their accounts which makes them quite compelling. It was like you were able to go back in time and take a look at what was going on around you. I just thought that I got a pretty good impression of the garrison at King George’s Sound, and then the earlier years in the Swan Valley, and a little further abroad outside the Swan Valley and then even in the Wheatbelt in the later part of the nineteenth century. I spent a lot of time reading those accounts and in fact I had constantly to rein myself in. I was really enjoying it, but I knew that I would have been spending time reading things I didn’t have to deal with in the judgment.

Q: You have been around the legal profession for 40 years and a judge for 22 years…

More than that, it is 50 actually. I started as an articled clerk, 52, no 53 years ago. Yes, it is a long time.

Q: And quite enviable really. Would you be able to comment on some of the most significant changes to the legal profession and practice of the law that you have observed over this time?

There have been enormous changes in the technology. As I commented in my farewell speech, when I started as an articled clerk in January 1954, there was no such thing as email of course, there was no Internet, there were not even computers being used in any commercial or business context. There were no fax machines, there weren’t even good duplicators. You had smudgy duplications; when you tried to photocopy something, it looked like an answer to a FOI question. So basically materials had to be typed. When a brief for a barrister was prepared, a typist had to copy the documents that would go in the brief. Two articled clerks had then to check it by one reading it to the other. This was terribly time-consuming. The result was that the instructing solicitors were extremely careful about what documents they decided to put into the brief. It was a very tight selection process that went on when preparing a brief for counsel. The result was that the amount of paper that was used in a case was much less than it is today.

One of the downsides of photocopy machines, which are wonderful, is that there is a tendency just to copy everything that is remotely concerned with the case. It comes up on a trolley with 20 lever arch folders to barristers’ chambers and the barristers often, and I think wrongly, just try to shove it all into court. This is a very unfortunate tendency. The good thing about the old system was that it imposed that tight selection at an early stage. These technical changes, although in one sense they are wonderful, do impose challenges for legal practice in terms of how they are to be used without being abused and without imposing additional burdens on the profession.

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