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Sackville, Justice Ronald --- "Occasional address by Justice Ronald Sackville on the award of LLD (Honoris Causa) by the University of New South Wales" (FCA) [2002] FedJSchol 8

Occasional Address by Justice Ronald Sackville on the Award of LLD (Honoris Causa) by the University of New South Wales
17 May 2002


Chancellor, Deputy Vice Chancellor, Dean and Members of the Faculty of Law, Graduates, Families and friends of the Graduates:


It is now more than twenty years since I participated officially in a graduation ceremony at this University. In 1981, as one of my last acts as Dean of the Faculty, I announced the names of the graduands, just as Professor Trakman has today. I felt a mixture of pride at the achievements of the students and of the staff of the Faculty (then only ten years old), together with a pervasive sense of trepidation lest the next name on my list not match the expectant face whose possessor was about to ascend to the stage.


I would have regarded it as a very great privilege to return to the University simply to have been invited to speak to you, the graduates, at this ceremony. To be invited to speak as the recipient of the highest award the University can confer is not only a demonstration of Peter’s Law, that the unexpected always happens, but a deeply moving honour.


I have been particularly moved by the fact that it was my colleagues on the Faculty of Law who saw fit to recommend to the Council of the University that I should be honoured in this way. I can only conclude that twenty years is sufficient time for those on the Faculty who knew me as a colleague to forgive and forget; and, for those who did not, to erroneously equate advancing age with merit.


The gap between then and now is graphically illustrated by that splendid publication “Thirty Up: the Story of the UNSW Law School 1971-2001”. The book includes a number of ancient photographs obviously collected by someone who wished to wreak revenge for some grievous wrong inflicted in the early days of the Law School. Among them is a picture on page 144 of a rather wild-looking man with a black moustache and a profusion of unkempt jet black hair. O how times have changed.


I hope you will not think it excessively immodest of me to suggest that the photograph brings to mind Thomas Gray’s description of the Bard:


“On a rock whose haughty brow
Frowns o’er old Conway’s
foaming flood,
Robed in the sable garb of woe,
With haggard eyes the Poet stood;
(Loose his beard, and hoary hair
Stream’d, like a meteor, to the
troubled air)...”.


This is a day not to honour those with haggard eyes or even sabled garbs of woe but to celebrate the achievement of each and every graduate in this room. We live in an age that tends to undervalue the ceremonial, at least in the traditional as distinct from the Oscars sense of the word. The history of the law and Universities is closely intertwined; perhaps for that reason both have long recognised the importance of ceremonies to mark important milestones in professional life. You are entitled to feel a great sense of satisfaction that your hard work and dedication have been rewarded by a degree that is acknowledged within the legal community and outside as of the highest quality.


I want particularly to commend those who have received higher degrees. You deserve special credit for meeting the intellectual and personal challenges presented by post-graduate work and making the sacrifices those challenges require.


And it is a day to acknowledge the contributions made by parents, partners, family and friends to the success of today’s graduates. You, too, are entitled to feel a full measure of pride and joy in their achievements, tempered by the thought that you should not necessarily assume that this marks the end of your contributions to their welfare.


I took up my position at the University thirty years ago, in 1972, the year of the second intake of students into the Faculty. If you have any doubt that you will experience profound changes during your working lifetimes, consider the Australia of that time. The country had entered the 23rd year of unbroken Coalition rule at federal level. Although the post-war era of relative economic and social stability was about to end, an entire generation had grown up, been educated and were well into their careers (it was, after all, a time of virtually full employment), without ever having experienced a change of national government.


The White Australia policy had been formally abandoned less than seven years before I arrived at the Law School. It is hardly surprising, then, that the composition of the entering class of 1972 was markedly different to the composition of today’s graduating class. Feminism had only just begun to make her voice heard, although not everyone was listening. The audience certainly did not include every male on the Faculty.


In 1972, the wonders of technology had barely begun to register. The computer age was under way, but for most University staff their knowledge of computers was limited to a rumour that a very large and very expensive machine occupied several rooms in the central administration building. If this contraption did exist, its capacity was undoubtedly a tiny fraction of a laptop today. Research meant library work with real books and records: dusty, time-consuming and frustrating. The first edition of the Property casebook, which appeared in 1971, was typed, as my wife will remember, in manuscript on manual and, wonder of wonders, electric typewriters, assisted by some cutting and pasting (which meant just that). The proofs were printed from plates typeset by tradespeople whose skills and jobs, like those of so many others, have long been overtaken by the march of progress.


The age of globalisation was in the future. In particular, international law was generally regarded as a discipline of interest to inveterate optimists who could envisage, despite the seemingly permanent state of conflict between the two superpowers, a utopian era of world peace imposed by a supra-national authority. International law seemed to have little relevance to the practice of law, let alone to the daily lives of Australians. In the year 2002 it is not only those who have graduated in international law who will have to become familiar with international treaties and norms. Even tax lawyers will spend much of their time analysing international agreements.


The relics of our colonial past remained. It would be 14 years before the Australia Act finally abolished appeals to the Privy Council from Australian courts and otherwise completed this country’s long journey towards independence (subject only to the unfinished business of replacing a hereditary monarchy).


It would be another twenty years before Mabo recognised native title although in retrospect it can be seen that the Gove Land Rights Case, decided in 1970 set the stage for acknowledging the claims of traditional Aboriginal peoples to their lands. The Trade Practices Act, the Family Law Act and even the Federal Court of Australia Act had not yet been enacted.


Those who remember the new and vibrant Law School of those days tend to focus on the innovations in teaching and on the spirit of inquiry that characterised the institution – small classes, the use of Socratic dialogue, the emphasis on the role of law in society. These were characteristic of a different educational culture than had previously existed in Australian Law Schools. They remain ideals that are worth fighting for vigorously, even in the age of the managerialist University and perpetual financial constraints.


There was, however, something equally important that emerged in the first decade of the Law School’s life. By luck or design the staff included teachers and scholars with a wide range of interests and divergent ideologies. A number saw their mission as reforming the law to meet the needs of what had become a rapidly changing society, and to protect the interests of vulnerable groups in the community; some went further and argued that the law was an instrument of oppression and was incapable of piecemeal reform at least without structural societal change; others preferred to concentrate on exploring the principled development of what is sometimes described – disparagingly and inaccurately – as black letter law. Some even professed to straddle all ideological boundaries; they were called Deans.


The critical point is that the members of the Law School agreed to function as a genuine community of scholars. Ideas were debated; disagreements were strong and even profound. The great Honours debate aroused passions usually confined to religious schisms. Even so, differences of opinion were not only tolerated but encouraged. Without overly romanticising the period, I think it can be said that academics and students alike felt free to pursue their own interests and causes, secure in the knowledge that work of high quality would be respected and valued, regardless of whether it met preconceived notions about the role of law or legal scholarship. The factionalisation and bitter conflict that have sometimes affected other academic institutions never came to pass.


This to my mind was and is the fundamental strength of the Law School. There is much discussion about the idea of a University and indeed whether it makes sense to talk about the “essence of a University”. But whatever else a great University stands for, its functions must include providing the freedom to challenge society’s prevailing orthodoxies (although you will not find this confirmed by a reading of the latest Discussion Paper, entitled Higher Education at the Crossroads). There are few institutions in our society, especially in these populist times, which afford a home for those who question values and practices that the community, including its elected representatives, take for granted. There are even fewer institutions whose members can afford to take a long-term view of complex social issues. The ideas that emerge from a process of sustained research and contemplation may be incomplete or plain wrong. Often they will attract not only opposition but deep antipathy, perhaps ridicule. Yet without novel and challenging ideas – good, bad and indifferent – our society stagnates.


It might be thought that there are few parallels between academic criticisms of prevailing social and political orthodoxies and the work of lawyers. Challenging orthodoxy is doubtless not a recipe for universal acclaim, but why do lawyers, of all people, need to challenge orthodoxy?


Yet it cannot have escaped your attention that lawyers seem to attract a disproportionate share of community hostility. It has been most recently manifested in the current frenzy blaming the courts and lawyers for the crisis in liability insurance. But this could easily be duplicated by other examples of what sensitive lawyers, admittedly not a common breed, might characterise as irrational anti-lawyer prejudice.


Sometimes of course criticism of the legal profession is warranted. The transformation of some law firms into business units apparently dominated by the pursuit of profit creates issues that the legal profession has not yet adequately addressed. Surprisingly enough, not all judicial decisions are models of perspicacity and insight. (I speak here, of course, of Courts other than the Federal Court.) If we are just the tiniest bit introspective, we must acknowledge that lawyers and the courts bear considerable responsibility for an unsustainable system or, more accurately, systems of accident compensation, that are in a state of terminal confusion. By way of mitigation, however, I should point out that it is equally true that certain lawyers identified the problems long ago and offered perfectly workable solutions. I invite you to read the reports of the New South Wales Law Reform Commission from the early 1980s on a no fault accident compensation scheme for transport accidents. The current crisis has not crept up on us unannounced.


Leaving aside the well-founded criticisms, there is a particular reason why lawyers are fated to endure unpopularity. It derives from the misconception, widely adhered to in this country that democracy means nothing more than the will of the majority as expressed at any given time, whether at the ballot box, opinion polls, or through the media. That misconception explains why critics of judges so often employ the pejorative adjective “unelected”. Of course judges are unelected. They are also unremovable, except for proved misbehaviour or incapacity. As many commentators have pointed out, these elements of our system are not for the personal benefit of individual Judges. They are protections for the benefit of the community, recognising that Judges must uphold the rule of law, an essential pillar of our democratic system.


One fundamental reason why lawyers and courts frequently are the targets of opprobrium is that their job frequently requires them to uphold the rights of unpopular or even decidedly unpleasant individuals or causes. Decisions of this kind rarely generate an enthusiastic public response. A judge who sets aside a deportation order made against a convicted heroin dealer, on the ground that the decision-maker has breached standards of procedural fairness, is not endorsing heroin dealing as a worthwhile enterprise. He or she is upholding a fundamental value of our system, namely that a person’s liberty, even that of a convicted heroin dealer, is not to be denied without a fair hearing unless Parliament expressly provides otherwise. A judge who, after considering the relevant principles or guidelines, imposes what media commentators might regard as a lenient sentence on an offender, is not trivialising the suffering of the victims or undermining the will of the people; on the contrary, the judge is attempting to administer justice impartially according to law. A court which interprets the language Parliament has used in a statute in a manner at odds with the construction preferred by the executive government of the day, is not slapping democracy in the face, but discharging the core functions of an independent judiciary. The lawyers who argue fairly for these results are not subverting democracy: they are strengthening it.


A lawyer who does his or her job properly must even be prepared to risk incurring the serious displeasure of clients. It may fall to a tax lawyer, for example, to advise her client that what the client is proposing cannot or should not be done. A litigation lawyer may have to tell his client that the case is doomed to failure. Such forthright advice is not always welcome. Indeed, advice of this kind may seem, at least in the short run, to be contrary to the lawyer’s financial interests. Nonetheless, there may be no alternative if the lawyer is to discharge his or her professional responsibility.


In short, part of the equipment you need to be a successful lawyer, whether as an academic, in private practice or elsewhere, is not only integrity, but the courage to risk unpopularity where circumstances require it. I am not suggesting that you should endeavour to become as unpopular as possible. I am suggesting that unpopularity is a professional hazard; it is the price to be paid for independence. This is not inconsistent with personal satisfaction or, for that matter, the material rewards that often accompany a successful legal practice. On the contrary, part of the satisfaction of being a lawyer is knowing that you have the ability and professional responsibility to exercise independent judgment. This is a great privilege, denied to most people in their working lives.


One of the most profound differences between 1972 and 2002 is the latter day ascendancy of economics. In 1972, although it is hard to believe, the first edition of Posner’s Economic Analysis of the Law, had yet to appear. But there are some things that economics cannot buy. Despite the apparently relentless forces of the market place, there remains something special about universities and about the law. However annoying and imperfect each may be, and however difficult it may be for the productivity experts to work out whether they are efficient, they remain essential components of a democratic and civilised society.


I congratulate you once again on your achievements and wish you every success in your careers and, equally important, every satisfaction in your personal lives. I once again thank the Faculty and the University for the profound honour bestowed upon me.


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