Reflections on the law and other things by a lawyer in autumn
There’s more to history than ‘accidental judgments and casual slaughters.’ It is the story of life and my life at least would be useless without it. There are two things to remember. First, history is a collection of biographies. Secondly, the better the story is told, the better we can follow it. Let me give examples from two new biographies that I am currently (October, 2020) reading – Haldane, by John Campbell, and Hitler, Downfall by Volker Ullrich. When in second year law, I decided to concentrate on French and Russian biographies and legal history, I think the first book I read was a biography of Lord Haldane – who was a lot more than a lawyer and Lord Chancellor. He was – wait for it – a philosopher. He had studied in Gottingen as well as Edinburgh. He claimed to understand Hegel – and very few people – let alone an English lawyer – have tried that one on. (Kant must have seemed a breeze after that.) In The Philosophy of Humanism, he said ‘It is in the quality of the struggle to attain it, and not in any finality we suppose ourselves to have reached and to be entitled to rest on, that truth consists for human beings.’ English lawyers don’t talk like that – neither do English philosophers. Haldane said about Adam Smith that he ‘had a perception that abstract propositions, however carefully stated, can express only one aspect or side of things, and are therefore wanting in truth, a quality that belongs to what is concrete alone.’ That statement might be said to represent the upshot of English philosophy for that century. The author refers to Haldane’s ‘ability to hold a range of opinions in harmony’ – the hoped for benefit of a liberal education. Haldane was in government with giants – Asquith, Lloyd George, and Churchill – that now leave us feeling glumly small. He was of course on first name terms with Einstein, Keynes, Laski, and Russell. And Natty. Nathaniel Rothschild. Disraeli may have advised him that if you want to run an empire, it helps to have an in with the Rothschilds. You never know when the Crown might need fast cash in steep amounts. Like when the Empress of India picked up the Suez Canal. Haldane was instrumental in arming England for the Great War and he laid foundation stones for MI5, MI6, the LSE, Imperial College, and the ‘redbrick’ universities. And with Asquith, Lloyd George and Churchill, he launched the Welfare State in England.
Now, from the second book comes hubris touching on madness.
‘It will be a mass attack in the grandest style,’ Hitler and Goebbels agreed. ‘No doubt the most enormous that history has ever seen. The example of Napoleon will not be repeated.’ The dictator and his propaganda minister did not find it at all ominous that the start of Operation Barbarossa fell on the same day that the French emperor had crossed the river Neman with the Grande Armée 129 years earlier.
That was on 24 June 1941.
‘Our situation bears a horrible resemblance to that of Napoleon in 1812’, the tank group commander Colonel-General wrote on 12 December. ‘The Russians were right that the winter put a halt to us.’
Hitler was infatuated with Wagner’s Gotterdammerung, The Twilight of the Gods, but he was the sole author of his own demise. The Russian resistance was demonic because the master race was engaged in a war of annihilation. Then after Pearl Harbour, Hitler declared war on the United States. He told Goebbels the U S posed ‘no acute threat.’
They cannot change anything about the situation on the Continent. We are sitting secure in Europe, and we are not going to let the reins be taken from our hands.
For the second time in history, the Russian peasant soaked up the evil coming from Europe with their blood. This whole chapter is almost unbearably brutal. About twenty million Russians would die in the conflict – about seven million of them were civilians. Slavs were as disposable as Jews. ‘This gigantic expanse must of course be pacified as quickly as possible, and this can best be achieved by shooting everyone who even looks at us the wrong way.’ The Nazis subjugation of the Russians would make the Spartans treatment of the helots look benevolent. Only God could assess the degrees of evil. The next chapter is ‘The Road to the Holocaust.’ In my view, anyone claiming to be civilised needs to come to terms with evil. To understand humanity, you need to try to understand inhumanity.
In 1985, the Victorian government briefed me to draw up a bill for an act of parliament. It was, I think, the first time that the government had gone outside for the work ordinarily done by parliamentary counsel. The subject might fairly be said to have been tricky. This was a Labor government led by a prominent Labor lawyer, John Cain, that was proposing to legislate to bring under the control of government all fees charged by lawyers. For obvious reasons, some care would need to be taken in framing this law. People had to be free to contract out of the law – as you would expect – and it would be scrutinised by some of the best legal minds to see how the law might be complied with – or avoided. This was at the time when ‘plain English’ drafting was in vogue – and gender neutrality was politically mandatory. It was not easy trying to comply with the various wishes of government. On one occasion I told them that they might have a choice – did they want something that might look pretty – or something that didn’t look so good but had a sporting chance of working? I found the whole exercise to be very enlightening. It meant that I had to be very careful that any preconceptions I had – and it would be odd if I had had none – did not interfere with my work. I was there to give effect to the wishes of the client – no matter what I personally thought of those wishes. In other words, I had to be intellectually honest. This was a good experience to have for drafting generally. The work was a bit harder then – before computers made drafts so malleable – and it taxed my then secretary mightily. I was just about to sign off when the government lost interest and called the project off. I gather that what was called ‘the big end of town’ – quite possibly in the form of Alan Cornell, the man about to be become the senior partner of Blake & Riggall – had persuaded Mr Cain and others that this kind of government imposition might be bad for business – and not just the business of lawyers.
In 1985, the year I turned forty, some kind of mid-point, I suppose, I took two decisions that changed the whole shape of my career and life. One was to accept appointment on a sessional basis to run the division of the tribunal that the Victorian government was setting up to hear and determine state tax cases. The other decision was to leave the bar and go back to Blake & Riggall, which I was aware was likely to merge with Dawson Waldron in Sydney. Things change. Before I went back to Blakes, I insisted on meeting all the partners – then about eighteen, I think. When I left the merged firm of Blake Dawson in 2002, it had about four hundred lawyers all round Australia and in England. That was about the number of lawyers at the Victorian bar when I first signed on in 1971. Now (October, 2020) there are about 2400 at the bar – subject to the ravaging by the Covid virus. The two moves were related, and I have been very fortunate with that relation. I had decided that I did not want to go the bench – which at that time was the ultimate object of most barristers of merit. (That is no longer the case.) But being appointed to a tribunal, to hear and determine cases that involve seriously fine legal issues, meant that I could in my own time, more or less, experience just how that kind of forensic inquiry works. It throws great light not just on how advocacy from the bar table leads to adjudication from the bench, but on your whole understanding of the law. And going back to the other side of the profession also completely alters your outlook on the legal world. From spending so much of your time resolving conflict, you can use your knowledge of the law and people to help them come together – with a view to avoiding conflict. It’s like going from negative to positive. And the two changes blended so well to change my outlook and life. I was very fortunate. Each move led to a change of aspect that any trial lawyer would derive great learning from. If travel broadens the mind, so does a simple change of course – especially a change of hemisphere.
The new Tax Division of the AAT inherited a back-log from its predecessor in 1985. It took about six months to clean that up. From then on, I could manage the list as I wished. State tax cases are not like federal cases- which often involve shockingly complex legislation and equally complex schemes to get around it. State tax cases often involve easy looking questions that can be very hard. What is a debenture? What is a covenant? What is a charity? What is a contract of employment? When does a contract for the sale of land become binding? What kind of breach of contract enables the other side to walk away? There were two issues in getting the new tribunal working in this area. One was that the legislation setting up this new role for the AAT was part of a whole new package of reform of administrative law that greatly improved the rights of people in dealing with their government. But there were old cases, some in the High Court, that gave revenue officers the chance to argue that the new dispensation did not apply to tax. The results appalled a common lawyer like me, but it took three or four years of very hard grind to pull them around. On some occasions, the atmosphere got very tense. More than one tax commissioner sent a heavyweight silk down to say that I had not understood their practices and that I had said things that had sadly offended them. On one occasion I had to get the Solicitor-General, Hartog Berkeley, QC, to tell them to pull their heads in. They gradually came around, and this was I think a reform that worked. The other problem came from the prevailing attitude to the conduct of litigation. This was in the era (1985 plus) where the new regime of the court control of litigation was coming to new heights. I thought this practice was making the process a lot more complicated and expensive, and using up so much time of both judges and lawyers. Instead of judges doing so much to orchestrate a process, I thought they should get the parties into the ring for trial as soon as possible, and then control the hearing very firmly. After a year or two we got the following model. The Crown would refer its disallowance of an objection to an assessment to us. I would say that we would resolve it within six weeks. I would fix a hearing date in about four weeks’ time. There would be no prior hearing or directions or witness statements. We would usually finish the hearing before lunch. If necessary, I would fix times for the examination of witnesses and submissions. I would try to give my decision on the next working day. We applied that model to most cases for about fifteen years. A lot of lawyers grizzled, groaned, protested, and appealed. I never heard a complaint from a litigant. The Crown appealed as of course and as of right almost every case they lost. They had a legitimate interest in getting a ruling from the Supreme Court. In the end, three of mine were dealt with by the High Court. I have never understood why decent judges get so uptight about what happens on appeal from them. It never troubled me. As often as not, I did not even get to hear to hear about it. I was intent on expedition – fairness, of course, but at a properly controlled speed. Lord Mansfield knew the truth. Most delay in litigation comes from the lawyers. No litigant with a good case wants delay. Delay suits those with power and wealth. In 1215, the English Crown acknowledged that justice delayed is justice denied. In my, view the fall from grace of our trial lawyers and systems has come from our failure to deal with delay. It is partly a failure of nerve and partly a sustained flirtation with the inquisitorial – which as a matter of simple but long history is not the way we practise the law. Well, all that in me sounds like a broken record – but it does hurt other people more than me.