Justice Gummow Reflects on His Time on the High Court

By Martin Clark

On Friday 13 September 2013 I was lucky enough to spend an hour interviewing Professor William Gummow AC about his time on the High Court of Australia (1995–2012).

Professor William Gummow AC retired in October 2012 from the High Court after 17 years on the bench. Prior to that he sat on the Federal Court for ten years, and before that had been an influential and highly-regarded member of the Sydney Bar, a partner at Allen Allen and Hemsley, and also lectured part-time at the Sydney Law School from 1965 until 1995. He is now Professor of Law at the Sydney Law School and the Australian National University.

In this extensive interview, Professor Gummow discusses a wide range of topics, including the  similarities and differences between the judges and processes of the High Court of Australia and other apex courts around the world, his views on advocacy before the High Court, and changes in the legal profession. He also offers his thoughts on the enduring importance of several great Australian judges, including Sir Owen Dixon, Sir Victor Windeyer, Sir Garfield Barwick and Sir Nigel Bowen.

MC: Professor Gummow, thank you for joining us.

WG: Thanks for having me.

MC: Professor Gummow, how would you describe your time on the High Court?

WG: Challenging and interesting. One must like writing judgments; if you don’t enjoy the task of writing judgments you’re in deep trouble. Barristers like arguing cases, which is different from deciding them. In an ultimate court there is an added dimension in that the result is directed not just to the parties, but also to the wider operation of the law. It’s also a fact that a number of the High Court judgments on general law matters are looked at in other countries. All of these aspects add to the interest and the challenge.

MC: What in your opinion differentiates the High Court of Australia from superior or apex courts in other countries; the UK Supreme Court, the Supreme Court of the United States, and the Supreme Court of Canada in particular?

WG: A number of matters, really. Unlike the Supreme Court of the United States, the High Court hears appeals in general law matters, and not necessarily with any federal element at all. This means the judges have to be widely versed in the law to carry out their task properly.

Secondly, the UK Supreme Court doesn’t have to deal with a federal system as we understand it. But it also has European courts looking over its shoulder. In a way, it is no longer the ultimate court of appeal in many matters in the United Kingdom, with which I think the British have some difficulty getting to grips.

The Supreme Court of Canada is different again. They do of course have a federal system, and they are a general court of appeal, but they also have not only a common law system, but a French system in Quebec. So they have an advantage over us, in the sense that they are naturally comparativists. They have judges from the civilian French tradition as well as those from the common law tradition, and there is some interaction between them.

On the other hand, the Canadians don’t have a Bar as we do. The UK Supreme Court obviously has. The Supreme Court of the United States doesn’t really have an appellate Bar as we understand it. I knew Professor Charles Wright, who was the author of a leading book on federal jurisdiction in the United States and head of the American Law Institute. People used to say he’d appeared before the Supreme Court, I think, 21 times in his long career, and this was regarded as something of a record. In Australia, Mr David Jackson, for example, would appear probably in 10 appeals or so every year. So there’s that difference in terms of the relationship between those who argue the cases and the bench.

Another distinction is important. High Court judges right from the outset, I think beginning with Sir George Rich, when they were at the Bar had also been law teachers. This, I suspect, has had a significant effect on their judgment writing. That’s true to a much, much lesser degree in the United Kingdom than here. So, for example, there was a rule in the United Kingdom that only the writings of dead scholars were cited in court. This limitation was never accepted in the High Court, from the earliest times. So there’s been a quite different method of thought.

What all of the apex courts have in common is a limited number of appeals and a complex filtering system, so they only get a few cases rather than many. On the other hand, unlike the other three courts, the High Court does have an active original jurisdiction, and a lot of its important cases start off in the original jurisdiction and get referred into a Full Court. It means, for example, the Malaysian Solution case [Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32] was brought into the High Court and decided quickly. The Americans took years to get the Guantanamo issues before the Supreme Court [see, eg, Boumediene v Bush, 553 US 723 (2008); Hamdan v Rumsfeld, 548 US 577 (2006)]. There may be a mentality in the United States Supreme Court that says ‘things might blow over in the meantime if you don’t get too involved’. We haven’t taken that view. So the original jurisdiction is a very important and, I think, enables the High Court quickly and decisively to deal with important constitutional issues which arise with some urgency. This is important for the Court’s position in the structure of government.

MC: Another central distinction between the Supreme Court of the United States and the High Court of Australia in litigation is the presence of seemingly endless amicus briefs …

WG: Yes …

MC: That come from academics, corporations in some instances. I think in the Kiobel case [Kiobel v Royal Dutch Petroleum Co, 569 US ­­­__ (2013)] there were 80 or so [see here and here]. Do you think that’s a good practice?

WG: Well, I don’t know how many of them get read. I think a lot depends on who writes the brief. So, for example, a friend of mine who’s a leading academic in fiduciary law in the United States prepared an amicus brief in a case they had about four years ago on the fiduciary aspects of their ERISA scheme [Employee Retirement Income Security Act 1974, Pub Law No 93-406, 88 Stat 829]. This is the employee retirement scheme, a federal statute [Metropolitan Life Insurance Co v Glenn, 554 US 105 (2008)]. I know that got read, because of her eminence! But I suspect a lot of the others don’t hit the judges desks, for some reason or other …

MC: Or are filed away by the clerks?

WG: I suspect so! And I think a lot of them must be very burdensome to read, because they’re pushing a view. They’re not really an amicus curiae at all, they’re a de facto party. With an amicus you’re looking for a certain amount of balance. We have had a system, of course, for some time. There’s a decision from the period when Sir Gerard Brennan was Chief Justice about when we accept an intervener and when we accept an amicus

MC: Kruger? [Kruger v Commonwealth [1997] HCA 27]

WG: Yes; the difference being that interveners become parties and are at risk for costs for one thing, and they have to have a sufficient interest in the matter to support their intervention. Amicus briefs are much more detached, as it were, from the instant litigation. On the other hand, the High Court quite often gets amicus briefs from, say, the Human Rights Commission, which can be helpful. They file the application to be admitted, and with the application they file the draft of what their submissions would be. So sometimes they don’t get leave to present orally but their written material is accepted. So I think it probably works out quite well, but we don’t get hundreds: I think that would be terrible.

MC: Speaking of oral submissions, advocacy before the High Court is, I’d imagine, an incredibly nerve-wracking and painful experience for most counsel …

WG: Well, I’m not sure that that should be right. I did a lot of work when I was a junior with Sir Maurice Byers, who was probably the most famous High Court advocate of his age. He said to me that when he was first doing appeals before the New South Wales Full Court, he couldn’t get them on to a sufficiently high wavelength! And when he first appeared before the High Court in 1948 or ’49, suddenly there were people with whom he could communicate. So I think it’s a question of getting on the right level, and not having a re-run of what you’ve done in the court below; whinging and whining about what went wrong.

In the early 1980s I was with Sir Maurice and Mr Gleeson in an important tax case. Sir Maurice was arguing and the bench seemed engaged; it was at a level of considerable abstraction. Gleeson had a very ordered turn of mind, and he whispered to me and said ‘what’s he saying to them? What’s he doing?’ I said, ‘he’s telling them to lift their game so that they’re up to his game’! And it was working too! What he was really saying was ‘you know, and I know, and we don’t need to tell the other side’. So it’s a great art, really. Charm plays a large part of it, which is not sufficiently appreciated, I suspect, and a certain nimbleness on one’s feet. The important thing in preparation is to ask, to yourself, in advance ‘what are they likely to ask? What am I going to say if they spring this or that or the other thing on me?’ It’s dangerous to think, ‘well I’ll steer away from that’ and hope that we can skim over it, because the ice may break and you’ll fall through.

I don’t think it’s particularly nerve-wracking. It is more difficult now, in the sense that there’s less time. High Court cases used to be longer than they are now. I think that has some downsides to it, but I can’t see that reversing. Counsel do have less time than they used to have; there’s less time, for example, to read out passages as they still seem to do in the UK Supreme Court. We had more time in the Full Federal Court for appeals. So some of them would go for three days there would go for one day in the High Court. Much more compression of thought is required.

Another problem is that the High Court is always eager to hear from the ‘next generation’ of counsel. They know the present generation. They’re interested in the next generation and the generation after the next one. They’re always eager to hear from counsel who are smart and starting off. There’s less of that now unfortunately.

Solicitors think they have to get some known, big-name, but the Court is likely to say ‘oh not you again’. Whereas they say, ‘it’s Mr Brown or Ms Smith, they’re very bright’. They might have got special leave for example, and this happened several times, in my experience. We said ‘we’re granting special leave’ — words to the effect of ‘this counsel is good!’ And then they turned up on the appeal with some well-known leader. The client is paying more money, and the Court isn’t as cheerful as it would have been.

MC: And you thought that counsel appearing in the special leave hearing would have done just as good, if not a better job?

WG: Of course! I mean there may not be a lot of money involved, there may be an interesting, difficult legal point.

MC: Do you think time constraints operate to bring the Court straight to the issues that are at the core of the appeal?

WG: Yes, because the reduction in the time has been balanced by more intensive preparatory material. That case I was talking about with Sir Maurice that had Mr Gleeson in it, the only submissions the Court would have had before would have been was a five page hand up, on the spot. That put enormous pressure on the bench. That’s been alleviated by the scheduled filing of submissions that are meant to be pretty comprehensive.

MC: And do you think that approach helped you prepare for hearings much more effectively?

WG: Oh yes, and quite often some point would emerge that was not fully developed in the written stuff, and we’d have the registrar write to them to say ‘well, what about this? We’ll be assisted, on the hearing, if you’ve thought about this’. That wouldn’t have happened in the past. They’d have just been sprung, and it certainly would have been a nerve-wracking experience! So that’s been an improvement. The High Court has also, in the last twenty years or so, expected counsel in their submissions to alert us to the current state of relevant authority in the other apex courts. This is quite important, and doesn’t happen in, say, the UK.

MC: It has been said before that some judges can feel like hearing material from comparator jurisdictions on one day, and ignore it or not want to hear any arguments based on what might be perceived to be irrelevant materials, on another. Do you think that’s the case?

WG: Depends on the material, of course and on how cogent it is. There’s limited scope for this in intermediate courts I think. It’s a different ballgame because of the different character of their decisions.

MC: And of course the costs question always lurks in the background.

WG: Yes it does, that’s right. On relationships with foreign courts, it’s important to appreciate that the High Court has very close relationships at two levels. The first is with the Supreme Court of India. The Court meets them every two or three years, either here or in India. It’s important to appreciate the Indian Constitution. Although it’s much longer than the Australian Constitution, and relatively easy to amend, in its bones it has quite a bit of inspiration from the Australian Constitution, for example, ss 118 and 92.

The second cooperation is quadripartite. It’s an initiative of Chief Justice McLachlin of Canada. This in 2007 produced a conference in Ottawa, attended by Chief Justice Gleeson, Justice Hayne and myself, Chief Justice Elias of New Zealand, Justice McGrath and Justice Tipping. We discussed various doctrinal matters, the common law in particular, subjects of common interest giving rise to litigation in all three countries. The next meeting was in 2010 in New Zealand, and the last meeting was in 2012 in Australia. The next will be, I think, in 2015 in Hong Kong. The Hong Kong judges unfortunately were unable to attend the last meeting, but they’ll be the host for the 2015 meeting. This is a very useful method of free discussion, just with the judges there, on matters of doctrinal interest. There’s a program prepared, dealing with matters of substantive law which are of common interest. We all learn from one another by that sort of a process.

These are initiatives which certainly didn’t exist in past times. There was very little interaction, for example, between Australia and Canada, and very intermittent interaction with any other common law jurisdiction. So all of this has been a change during my time on the Court, which I think is extremely beneficial, and it’s probably not as deeply appreciated outside as it is inside. I’m sure that process will continue as things go forward.

MC: At these conferences, are there particular areas of the law that tend to crop up more often?

WG: Yes; tort, and public law, and specifically administrative law and judicial review of executive action. The Canadians, for example, don’t have an ADJR Act [Administrative Decisions (Judicial Review) Act 1977 (Cth)]. They have to manage with the prerogative writs. So we’ve had an enormous advantage since we’ve had the ADJR Act, though it has been frittered away by Parliament cutting chunks out of it and putting them in other structures. Tort tends to be a common problem, also fiduciaries. Criminal law too: the Canadians have a federal criminal code — we’ve now got a federal criminal code [Criminal Code Act 1995 (Cth)], so that makes it a useful subject for discussion too.

MC: What do you aim to do when you ask questions of counsel during a hearing?

WG: Well one aspect of questioning from the bench, and this goes back to what you were saying, is in fact not to make things difficult for counsel, but to assist them, in the formulation of what would help them. And that’s not always appreciated. Too many counsel have the impression that every question has a malign intent. That’s not true. On the other hand, there will be occasions where counsel are not facing up to the real problem in their case. Procedural fairness requires it to be put to them if they’re going to lose on it. So that can be nerve-wracking.

But a lot of these matters should get sorted out at the special leave stage. Quite often in the course of the special leave application, the grounds will change somewhat, or the applicant will be given special leave to appeal, but on terms that they reformulate their grounds of appeal, to clarify or crystallise them. That’s quite an important aspect of having an oral special leave hearing. They don’t have oral special leave hearings in the UK or in the US, and they have them very rarely in Canada, so that’s another important distinction.

Now of course there’ll be more judges on the appeal than on the special leave hearing, but nevertheless, there will have been this opportunity — a first opportunity — to refine the issues.

MC: How do you think about prominent past benches of the High Court?

WG: It was different in Sir Garfield Barwick’s day. He had what Sir Maurice called a ‘jovial brutality’, which is a pretty accurate description. But on the other hand, you have to bear in mind that in Barwick’s day, the Court had an enormous number of appeals as of right. You only had to have a common law case with £1500 or $3000 at stake — unbelievable really — and you had an appeal as of right. If you look at old volumes of the Commonwealth Law Reports at the back there’ll be dozens of appeals which they more or less had to do on the spot, and which were of no general legal significance at all. That was a huge burden on them. One of Barwick’s great achievements was to advocate, successfully, for the introduction of the special leave system which we now have. The Court would have broken down without it.

And they also had an enormous burden in his day in the original jurisdiction. They used to try all the tax cases, for example. That’s why there are so many High Court tax cases in that era. You’d go from the Board of Review to the High Court, or you’d go directly from the Commissioner to a single judge. So they’d come to Melbourne, they’d sit for three weeks, they’d hear two weeks of appeals, a number of which would be these rather meretricious appeals, then the third week they’d break up and two of them would hear single justice matters.

I first got to know High Court practice in this era when at Allens I used to instruct in intellectual property matters. These would be done before single justices.

MC: How many of these matters would they hear?

WG: Sometimes the original jurisdiction cases would go for more than a week; they’d be hearing a complicated patent infringement, for example.

MC: That’s astonishing; it’d never happen today.

WG: No, no. So they were enormously overworked. How they managed to achieve their reputation at the same time was amazing. They were uniquely overburdened. It really was only alleviated with the creation of the Federal Court and without that goodness knows what would have happened. That’s associated with Barwick’s activities.

We also wouldn’t have the Court building in Canberra; he had the drive to achieve that. It’s these matters for which he can be remembered, far in advance of his actual writing. He didn’t write well. I don’t know why really. But he didn’t write all that clearly, which is unfortunate. But in argument he was right on the ball, of course.

He told me once, the first time he went to the High Court was in the 1930s, when he was one of these bright young barristers, and they used to get their foot in the door because of the original jurisdiction work. And he turned up and the presiding judge was Sir Hayden Starke; a notoriously terrifying figure. Starke said to him ‘you haven’t got a case, you haven’t got a case!’ and Barwick said ‘yes I have, if you’ll quieten down and let me tell you!’ Starke laughed; he just wanted to have a fight really. He thought it was terrific, and they got on like a house on fire after that. Barwick was rather the same, he just loved having a fight. He enjoyed having the fight: he didn’t want boring one-sided activity.

Gibbs was completely different of course. Other judges — Gibbs and Mason — served with Barwick. Mason had been his junior in various cases. So I think their ways of running the Court were reactions to Barwick, in a way — tempered by the furnace in which they had lived, I think, in earlier times. Sir Gerard Brennan joined in the Court in 1981 I think it was, to replace Barwick. Barwick said to him; ‘you’d better find someone to agree with for a couple of years, and then you should know enough to write your own judgments’. I don’t think any Chief Justice would say that to a new judge today. Certainly, Sir Gerard never said it to me! There’s been a general amelioration from that harsh world. It goes back to the 1930s I suppose in Barwick’s case: they were tough people. They came up through the Depression.

MC: Do you think that Barwick drew a lot of inspiration from Sir Hayden Starke, or do you think he was just cantankerous by nature?

WG: Oh certainly cantankerous by nature. At the Bar in the early 1930s, they had so little work. He told me once that they had so few briefs in chambers during the Depression, that when a brief came in all the barristers on the floor would have a go at it, just for something to do. That’s how hard it was. Only one of them would get paid — but to keep their brains ticking, they’d all have a go at it.

One of those characters had been [Sir Cyril] Walsh, a somewhat retiring person, and the trial judge in the Wagon Mound [No 2] [Overseas Tankship (UK) Ltd v The Miller Steamship Co [1967] 1 AC 617]. To Barwick’s credit, he got him on the High Court. Barwick had an eye for these things.

MC: Tell us about your own approach to the process of judgment drafting, circulation and conferencing.

WG: Well that’s changed over time, I think under the influence from the judges from the Federal Court. This is one of the significant developments in the High Court in the last twenty years or so. Brennan, Deane, Toohey; they were all from the Federal Court. At the present time, Justice Crennan, Justice Kiefel and Justice Keane were on the Federal Court and of course the Chief Justice was on the Federal Court for many years; we worked together on the Federal Court. So there’s always been three, sometimes four members of the High Court who have come from the Federal Court.

And that involves the influence of another significant figure who isn’t properly understood, which is Sir Nigel Bowen. Sir Nigel was younger than Barwick, but was more or less a rival of Barwick in many cases. He was of a completely different temperament. He was Attorney-General under Menzies when he was leader of the Bar. Attorneys-General were absolutely pre-eminent barristers: Ellicott was another one, and Barwick had been Attorney-General too. Eventually, when the Federal Court was set up under Prime Minister Fraser, Ellicott I think was Attorney-General. Sir Nigel as first head of the new Court introduced from the beginning what I think was something that hadn’t really been done before: in the Federal Court we always used to meet after every appeal we’d heard. And we would circulate drafts. There were only three judges, which is easier than five or seven. But it’d be difficult because the judges would be from all across the country, as the High Court is. So it was necessary for them to meet before they dispersed. There was a much more collegiate approach to the whole operation, which I think in the long run has proved very significant.

So if you want to ask myself or Chief Justice French how they learned to be appellate judges, it was from Sir Nigel. Now, when I first came to the High Court we only met once a month or so. We didn’t have any meetings after hearings. That changed with time, to the present system, which involves meetings before each sitting, and at the end of each appeal hearing, just to see where the Justices are going. Now, that’s probably been the most significant change in many years. It’s said, for example, going back to Starke, that he wouldn’t tell them — I can’t quite believe it’s true — that they’d turn up to deliver their judgments and they didn’t know what he was going to do! So that’s been a considerable change. I understand that it’s followed in the intermediate appellate courts throughout the country.

MC: Ideally, how do you think judicial conferences work well, or usefully? By that I mean, there are many competing priorities: of judges airing disagreements, attempting to formulate where majority lines of opinion might lie, and so on. Is it too different in every case to draw any broad principles?

WG: Yes, it’s different in every case. Of course there aren’t any violent disagreements or people shouting at each other — it’s meant to be a conversation between scholarly people, within certain parameters. Someone else can see something which comes out of the argument that you hadn’t quite seen the full weight of, and vice versa. Quite often, it’s not at all clear what the majority is going to be at all. That’s not worked out immediately in many cases, because, by definition, if they aren’t hard cases, they shouldn’t be there. It’s all a fairly congenial activity, in my experience.

MC: Is there a judge from the past, either from Australia or overseas, that you would say you admired most?

WG: From the United Kingdom, I think Lord Wilberforce, probably one of the last great English judges. On the United States Supreme Court, the second Justice Harlan, I think, and Justices Souter and Breyer to some degree as well.

In Australia, the judges who seemed pre-eminent at the time don’t always stand the test of time. I think Isaacs stands the test of time — probably an exhausting person to have to deal with — Dixon stands the test of time, but in a very subtle way. Often you get the impression that he’s writing deliberately opaquely. He’s more or less saying, ‘I understand this, but no one around me does — but at some time in the future someone will understand it’. Hopefully he gets borne out.

In more modern times, Sir Victor Windeyer, stands out. Not a very forceful person on the bench at the time. My co-author, R P Meagher, said of Windeyer that he wasn’t dim-witted, but he was slow-witted. There were fireworks going off all around him, but he wouldn’t be joining in on the fireworks. People tended to underrate him at the time. But in fact his judgments have probably lasted better than his colleagues of the period. This is partly because he had a wider experience of life. People forget that he was in the War, he was a brigadier with the Australian troops at the siege of Tobruk. He knew more about his fellow Australians than most High Court judges.

Once, I was going up to the High Court, then at Taylor’s Square in Sydney, when I was an articled clerk at Allens to file a document. The registry used to shut at 1pm on a Friday in those days, which was a trap of course. You’d be told to take a taxi if you needed to hurry. And the driver said, ‘where are you going?’, I said ‘the High Court’, ‘oh!’ he said and off he went. The taxi driver was an old digger, he’d been in Tobruk with Sir Victor. The men thought he was terrific. He said the reason why the morale was so good among the Australians, and the British morale much less so, was that the Australian officers — Windeyer insisted — the officers and men had the same food, and they lived together in the desert in their dugouts. That wasn’t true of the British, who preserved their rank system, their class system, no matter what. It’s a revealing story.

Sir Victor also had the belief that things have to change if they’re to remain the same …

MC: Did you have any specific cases in mind?

WG: Yes, the Professional Engineers case [Re Professional Engineers’ Association [1959] HCA 47] is worth reading. He traces the development of the Constitution, and he said that anyone who grew up in the period knew that the First World War was going to change everything. In other words, it was going to increase federal power, because people had become accustomed to the Commonwealth, which was running the war, and they expected it to continue running things in the peace too. Likewise with the Depression, when that came.

I suppose you might say that because Sir Victor understood the past he wasn’t intimidated by it. Some of the others were intimidated by it because they didn’t understand it. He understood its limitations and its advantages, its uses and its non-uses. He had a sense of continuum, but a continuum that changed without a revolution, which he saw as the genius of our system. This is pretty remarkable actually. So the Americans venerate a revolution. We don’t, we don’t have a revolution to venerate, just a legal evolution.

MC: On the use of history in court cases and High Court judgments specifically, do you think that history has been used well in recent decades? There has been some turn to the Convention debates and drafting histories. Do you think someone like Sir Victor had a better approach to historical material?

WG: Don’t forget that in his day they weren’t allowed to look at the Convention debates.

MC: Of course.

WG: Amazing really. I think he didn’t like that. But they were constrained, they had constrained themselves: Barwick in particular, and Dixon too. I think for fear that what would appear about s 92, for example, wouldn’t necessarily support the Dixonian construction of s 92. A great achievement of the Mason era was to break down that inhibition, and thereby reformulate s 90 and s 92. The earlier justices had got themselves in terrible strangulations over the excise power too. So in that way, the use of history simplified the constitutional system, to the general advantage.

‘Strict and complete legalism’ is an expression used from time to time with which to beat Dixon. I think it’s misunderstood. It’s uttered in 1952 during the height of the Cold War, after the Communist Party case [Australian Communist Party v Commonwealth [1951] HCA 5]. Now the Menzies government, of course, lost the Communist Party case, but I don’t think the government of the day then went public criticising the Court; what they set about was getting a referendum, which in turn failed.

I think the outcome would have been a source of some satisfaction for Dixon. He had been in the United States from 1942 to 1944, at a time when the United States Supreme Court had been coping with the New Deal, and there had been the ‘switch in time that saved nine’. There had been appointments by the Roosevelt administration specifically designed to advance the course of the New Deal. Dixon would have seen dangers in that.

So Dixon was anxious that the High Court avoid those dangers by bringing to the resolution of these disputes, something that the political system didn’t otherwise have. He speaks of ‘strict and complete legalism’ in resolving federal conflicts. The judicial system had some characteristics which the purely political process didn’t have. You wouldn’t further the Court’s position by turning it into a political branch. And I think that’s what’s happened in the United States. Lawyers and commentators say, ‘this Justice was appointed by that administration’. Chief Justice Gleeson got some analysis done: he only found one case in which the High Court had divided along what you might call ‘political’ lines based on the appointment of the judges, where they had split accordingly: it was a case about some anodyne New South Wales statute!

So that’s some vindication of Dixon’s idea. He was trying to — whether he wholly succeeded or not, I don’t know, but I don’t think it’s turned out too badly — he was saying, well we can bring something else to this adjudication. The Americans have … well, their first Constitution failed because they had a civil war, don’t forget, then they really had a second Constitution after the civil war and then that was coming unstuck in the New Deal, and it still goes on. We want to avoid that situation.

Dixon wasn’t saying that the Court was blind to what was going on outisde, which has been the popular academic criticism. I think probably less criticism now, but it was a popular criticism in the 1980s.

MC: As lamentable as some of the other political aspects of the US Supreme Court are, especially their appointments process, one of the upshots is that there is significantly more public engagement with the work of the Court, and — to some extent — understanding of what it is that the Court does.

WG: Yes, though, ‘understanding’ and ‘engagement’ — that’s the trouble!

MC: Contrasting that with the High Court of Australia, hardly anyone can name a single justice of the Court.

WG: Good! They shouldn’t be public figures, really, other than for what they write. They are pretty unexciting people really, not ‘hero judges’!

MC: Anonymity is a good thing?

WG: Well a certain amount of anonymity, yes. I don’t think the general public is all that interested in umpires. This is a comforting sign. If things were terribly wrong, they would get interested.

MC: Now that you’ve moved back to academia, do you still closely follow the work of the Court?

WG: Well you have to if you’re teaching — you’d be delinquent if you didn’t! I think too many academics, if I may say so, and as Justice Gordon was saying last night, just look inside their own silo. That’s wrong, in the sense that at any one time there’ll be some ideas running across High Court cases in all sorts of silos, which will have a linkage. For example, tax lawyers would do anything except look at a criminal case — and in fact there are quite a lot of financial fraud cases that are quite useful if you’re construing a tax statute — so you’ve got to be right across the whole thing I think.

MC: On that point, at last night’s Tax Lecture you offered a lament for the overspecialisation of lawyers, and made a strong case for general principles informing specific areas of the law. Do you think that’s a problem coming from law schools, or law firms?

WG: Law firms, I think.

MC: What do you think drives it?

WG: I don’t really understand it, actually — they seem to think that it assists their promotion to their clients, that they’ve got these people who are operating in very narrow, intensive areas. But that’s not right. It’s also a product of the push from big firms to get people in a silo, generating big costs, as soon as possible, rather than trying to spend a few years spreading them around. I know they have so-called ‘rotations’, but I doubt whether that produces good results. So when there’s a downturn, these people are stuck and they can’t go to another area.

MC: What kind of advice would you give to young lawyers to avoid that problem?

WG: Go to a medium sized firm. From what I hear, more and more corporations are working this out for themselves; that they think there’s over-servicing by the big firms and over-charging as a result. CEOs and lesser executives wish to have a partner who they can go to, who will really be hands on, with the appropriate young people helping him or her. They really want a partner who is hands on. The age of the mid-tier firms is probably going to be upon us.

MC: Do you have any thoughts on the international partnerships that many of the bigger firms in Australia have been engaging in recently?

WG: Well I don’t really understand the mechanics of it. I’m not sure whether they’re real partnerships or some sort of contractual relationship short of partnership. I think we’ve been seen by the English particularly, as their business contracts, as the gateway into Asia. That seems to be our use for them. They’re not doing it out of philanthropy.

MC: One of the other major changes in the law and legal profession in recent years, and certainly over the span of your career, is the rise of the number of statutes, and the areas of the law regulated by statute. What issues associated with that did you see recurring in the High Court? Were they problems of drafting?

WG: I think it’s unfair to criticise the drafting, in the sense that, two things have happened. First, I suspect the Office of Parliamentary Counsel in the Commonwealth is not as powerful as it used to be. In particular, they get impossible time constraints put on them. Secondly, I suspect they get inadequate briefs from the policy people as to what they are meant to be doing. So I think when we complain about modern statutes, we have to not blame the drafters so much as the system under which they’ve got to operate.

We had a case which is worth looking at, called the Phonographic case [Phonographic Performance Company of Australia Ltd v Commonwealth [2012] HCA 8] last year, about the compulsory licensing provisions in the Copyright Act 1968 (Cth). We were lucky enough to have put before us all the drafting materials inside the Commonwealth that preceded the enactment of those provisions. It was a unique snapshot. Sir Nigel was Attorney at the time. It was very high class stuff: they thought about it all. And when it went up to Cabinet — even at the policy level the pros and cons were very clearly laid out — it was a sort of text book as to how things should be done. So it’s no accident that the Copyright Act 1968 (Cth) was a great success, because all this thought had gone into it. That doesn’t necessarily happen today, as we saw yesterday with the Charities Act 2013 (Cth). I suspect that was insufficiently thought out.

Judges will always complain of course, but they wouldn’t be too good at drafting themselves, I suspect. There are some modern statutes that are very well drafted and run very smoothly. Sometimes they don’t attract a great deal of attention, because people only like to criticise the ones that aren’t so good. Two that stand out are the Admiralty Act 1988 (Cth), and the Foreign State Immunities Act 1985 (Cth). Both proceeded from reports from the Australian Law Reform Commission [here and here], presided over in those days by Professor James Crawford. Those are two excellent statutes that have received a lot of application without a great deal of trouble. It’s interesting to know, however, that they both proceeded outside the ordinary procedures of Parliamentary Counsel, and the ALRC didn’t have the time pressures that people are subjected to today.

MC: Now that you’re back at the Sydney Law School, what are your plans? Any specific research projects or new books?

WG: Lecturing and scholarship. We’re doing a new edition of the Meagher Gummow and Lehane’s Equity: Doctrines and Remedies, but that’ll take some time.

MC: I’d imagine, yes; the long-awaited fifth edition. Any doctrinal debates you’re aiming to weigh in on?

WG: Not really — depends a bit on what you mean by doctrinal debates — you can make helpful observations in particular areas, I think, but there’s no use in being too polemical. At any rate, it’s probably at too high a level to be polemical — polemical debates are usually at a very low level.

MC: Finally, what else does the future hold?

WG: I’ve no idea!

MC: Professor Gummow, thanks very much for joining us.

WG: Thanks very much for having me.

AGLC3 Citation: Martin Clark, ‘Justice Gummow Reflects on His Time on the High Court’ on Opinions on High (2 October 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/10/02/clark-gummow/>.

Martin Clark is a Research Fellow at Melbourne Law School.

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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

One thought on “Justice Gummow Reflects on His Time on the High Court

  1. What an enlightening interview! I’m glad that Professor Gummow granted it, one of the best High Court judges we have had in my opinion, and very smart questions from Martin Clark.

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