On the Edges of History

A graduate of the law schools of the universities of Melbourne and Virginia, Michael Sexton SC, spent some years as an academic lawyer before taking up practice at the NSW Bar. Since 1998 he has been Solicitor General for New South Wales. He writes in his recently published memoir On The Edges of History, “When I took the post of Solicitor-General I did not imagine that criminal cases would absorb a great proportion of my time.” To reflect on some of his unique experiences of politics and law in the latter part of the twentieth century and beyond, Michael Sexton addressed The Sydney Institute on Tuesday 22 September 2015.

ON THE EDGES OF HISTORY

MICHAEL SEXTON

This book is an attempt to look at some fragments of history in Australia’s post-war years in which I have been personally involved or have written about or both in some cases.  I was born in 1946 so my life has run with those post-war years.

The book starts with my present role as NSW Solicitor General but then goes back to the start and looks at my family background, including the adventures of my great uncle, Jim Mooney, who was one of the organisers of William Lane’s expedition to found New Australia in Paraguay in 1893.  Most of the settlers, including Lane and Mooney, eventually returned to Australia, although there are still some descendants of the original group in Paraguay.  This might be taken as an example of quixotic behaviour in the family over many years.

I grew up in Melbourne in the 1950s but in a Catholic family that was not a supporter of Mr Santamaria’s Movement. This was a relatively unusual situation and made us something of outsiders in this otherwise close-knit community. In his excellent new biography of Santamaria, Gerard Henderson places the greatest responsibility for the Labor split in 1955 on Labor leader, H V Evatt.  This is no doubt correct, but Santamaria nevertheless played a considerable role in these events and my objection to his part in modern Australian history is his contribution to breaking the electoral cycle so that there was a period of one-party government for 23 years.  Irrespective of what one’s political views might be, this seems highly undesirable and was responsible for a lot of economic and political problems over this period and after.

I spent the second half of the 1960s at Melbourne University Law School. Gerard Henderson and I were direct contemporaries but did not meet during that period when Gerard was heavily involved in political activities and I was spending most of my time on the tennis court. As Gerard would recall, however, Melbourne University, and particularly the law school, was far from a hotbed of student radicalism. Many of the law students wore jackets and ties and had correspondingly conservative political views. Almost all the students that I knew were in favour of the war in Vietnam as was a majority of the community.  I will say something more about Vietnam a little later but support for the war in the general community did not begin to fall away until the late 1960s when it was clear that the conflict was going badly for the Americans and their allies.

After law school, I went to work for one of the justices of the High Court – Sir Edward McTiernan – and this required a move from the quasi-European world of Melbourne to the more Australian style of Sydney – not necessarily a compliment!  When McTiernan went to sit as a judge on the Privy Council in London in mid-1972, I went with him but stayed in Europe afterwards and then went to the University of Virginia law school in the United States. In mid-1973 I was working in Washington in a building a block from the White House while, inside the White House, President Nixon was desperately trying to stem the tide of Congressional investigations into the Watergate burglary and other scandals surrounding the presidency.  This was an extraordinary time in American politics and I can recall watching, with my American friends, the broadcasts of the Congressional hearings as they unfolded day by day.

When I came back to Australia in late 1974, I went to work in the federal Attorney General’s Department. But, in early 1975, I moved into the Old Parliament House on the staff of the Attorney General, Kep Enderby, who had taken over that role when Lionel Murphy was appointed to the High Court. The book recounts my personal experiences with the tumultuous events of that year, culminating in the removal of the government by Sir John Kerr on 11 November 1975. In 1979, I had a book published on the Whitlam period under the title Illusions of Power. I was, of course, sympathetic to the government because of the way that it had been removed from office but it was impossible to discuss some of the events of that period, for example the Loans Affair, without being highly critical of Whitlam and some other ministers.  Whitlam made it clear to me that he resented some of these criticisms and I was not especially popular with his many admirers on the Labor side of politics.

As to the way in which the government was removed from office, I have expressed the view in the book that Kerr’s failure was not to warn Whitlam of what he was contemplating. This would not have been a particularly pleasant conversation, of course, but, if he had taken the high ground in this way, the outcome would have been quite different for Kerr and he would not have been destroyed in the way that he was.  I doubt that there was any likelihood of Kerr being dismissed but, even if that had happened, he would have been a hero and not a villain. We now know that Kerr had been considering what might happen as early as August 1975 and that he had been advised in the weeks preceding the government’s removal by one of the justices of the High Court – Sir Anthony Mason. I don’t suggest that Kerr was not in a difficult position or that he was the instigator of the crisis – the instigator was Malcolm Fraser and some of his colleagues who could not wait until the next election when the government would certainly have been annihilated at the polls. But Kerr mishandled his role as Governor General and paid a very high price for his misjudgement.

Illusions of Power was reissued with a new final chapter in 2005 to mark the thirtieth anniversary of the events of November 1975. Its original launch in 1979 was by Bob Hawke, then president of the ACTU. The launch, in 2005, was done by Paul Keating so I think I can claim the rare distinction of having the same book launched by both Hawke and Keating who, of course, by 2005 were on far from friendly terms with each other.

In 1981, Laurence Maher and I brought out a book on the legal profession – The Legal Mystique. In many ways we were not saying anything particularly dramatic, for example, that although courts tended to portray their decisions as inevitable, it was often just as open to find for the other side and the subjective views of the judge sometimes played a role in all of this. The book provoked quite a bit of anger in the legal profession, particularly on the part of some judges, not helped by a front page story in the Australian Financial Review about the book under the headline “Why judges are biased”.

The next book provoked even more controversy – War for the Asking: Australia’s Vietnam Secrets. It dealt with a period in late 1964 and early 1965 when the Americans – and then the Australian government – effectively made the decisions that led to the Vietnam involvement over the next decade. The book was partly based on highly-classified material that had never, up to that time, been made public. The publishers and I were well aware that the book could – almost certainly would – be the subject of a court restraining order if it was publicised in advance so it was put into the bookstores without any advance publicity and news stories published on the morning that it became available.

There was an investigation in Canberra, but ultimately the decision was made that no action would be taken. The point of the book was to show that, far from being pressured into the decision to commit Australian troops by the Americans, the Menzies government actively sought an invitation from Washington to take part and in fact exerted what pressure it could on the administration in Washington to step up the conflict in Vietnam. Opinions can differ, of course, as to these decisions, although I would argue that it was clear at the time – not just in hindsight – that the war could not be won by the politically limited means that were available to the Americans and so it proved.

These books were written while I was an academic in the law school at the University of New South Wales but in 1984 I left the law school for the Bar where I was to practise for the next fourteen years. A lot of my practice was in media law and my largest client was the ABC, although I acted for other defendants and for many plaintiffs over the years. In the case of the ABC, however, I spent a great deal of time at the studios that were then in Gore Hill, particularly providing legal advice in advance of Four Corners programs. There is a lot to be said for trying to deal with legal problems in defamation and contempt prior to publication in an effort to avoid costly and time-consuming litigation after publication.  Sometimes litigation occurred anyway but often not. Perhaps the most famous of the Four Corners programs from those years was Chris Masters’ The Moonlight State in 1987 that dealt with police corruption in Queensland and set off a chain of events that eventually led to the collapse of the Bjelke-Petersen regime. In addition to television programs, I provided legal advice on many books, films, radio programs and even music recordings.

My experiences with media law made me particularly conscious of the importance of freedom of speech in Australia and I have discussed in the book how successfully, or otherwise, this value is maintained by the laws of defamation and contempt. In recent years, I have had a lot to say – too much no doubt for some people – on the subject of s18C of the Federal Racial Discrimination Act which, quite wrongly in my view, makes publications unlawful on the basis that they are offensive or insulting to some groups in the community.

Another large component of my practice was acting for government regulatory bodies and particularly the Health Care Complaints Commission which deals with complaints about medical practitioners in New South Wales. The best known of the cases I was involved in for the Commission involved Dr Geoffrey Edelsten and continued for the best part of a decade. Dr Edelsten was struck off the role of medical practitioners in the late 1980s and eventually went to prison in the early 1990s because of two matters that had emerged in the course of the hearings before the medical tribunal. During this period I also spent eighteen months in the Chelmsford Royal Commission which investigated the use of deep sleep treatment in the Chelmsford Private Hospital on Sydney’s upper North Shore – a rather harrowing exercise for someone who had never been exposed to the problems of mental illness in our society.

I have dealt in the book with what seem to me to be some of the more intriguing cases that I had at the Bar but one of my favourites is the case that had its origins in the Profumo affair of 1963. This was a wonderful English scandal with sex, spies, lords and ministers all involved. It cost the Secretary of State for War, John Profumo, his job and perhaps the Conservatives the next election in 1964. The only person who faced criminal charges out of all of this was Stephen Ward who was charged with living off the earnings of prostitutes. Ward took his own life in the course of the trial before the jury’s verdict was returned. A book published in 1987 and serialised in the Sunday Times in England and the Australian in this country suggested that Ward had been framed by the police officers in charge of the case.  The officer second-in-charge was John Burrows, who had later immigrated to Australia and worked with the Australian Federal Police, becoming something of a hero when he disarmed a man armed with a knife at Sydney Airport who was holding a young girl hostage.

I appeared with Terry Tobin QC for Burrows in proceedings that were commenced in the NSW Supreme Court in relation to these publications and my researches led to an intricate knowledge – subsequently of no use whatsoever – of English politics in the early 1960s. Our opponents, whose clients obviously had much greater resources than ours, spent some time in England on a similar exercise and we were suitably envious. Ultimately, however, the case was settled without going to trial and Burrows received a considerable sum of money from the defendants.  We were looking forward to the trial because we thought it would be impossible for the other side to prove the truth of these allegations – and that could be the only defence in this kind of case – but naturally the interests of our client came first and a reasonable settlement of an action is always better than a trial.

During my early years at the Bar, I spent quite a bit of time in the world of politics on the Labor side. I was a delegate to state and national conferences and a member of policy committees in the New South Wales branch, including being chairman of the Defence and Foreign Affairs committee. I spent time in meetings with Hawke, Hayden and Keating and I have expressed some views in the book about these very different characters. I also provided legal and other advice to Bob Carr over the time that he was leader of the Opposition in New South Wales. I was interested in a political career in the form of the Senate but, as for many of my contemporaries, that did not happen, although I don’t have any regrets about spending some time in that world. As the book perhaps demonstrates, however, it is not a world for the faint-hearted.

One of the most interesting exercises from the political world that I took part in occurred in 1988 when I went with former South Australian premier, Don Dunstan, to Fiji to compile a report for the ALP National Executive on the aftermath of the coup in 1987 that had removed the elected government.  Dunstan was a remarkable character and when Premiers’ conferences had been held in Canberra in the 1970s, observers of those events often remarked that he was the most impressive of all the politicians present, whether State or federal. We spent a week together travelling around Fiji, talking mostly with members of the deposed government because the new administration had placed a ban on its members speaking with us. In the evenings over dinner Dunstan recounted fascinating stories from the worlds of law and politics that were not in the public domain. I must say that I formed the view that it would take a long time for the scars to heal from the events of 1987 and the truth is that in many ways that has still not occurred in Fiji.

In the early 1990s I was a member of the national committee of the Australian Republican Movement. I don’t think that I am noted for excessive modesty but there was no shortage of powerful egos in this group, including Malcolm Turnbull as chairman, David Hill, Donald Horne and Tom Keneally. It was not easy to get a word in at meetings of the committee. Ultimately the push for a republic failed at a plebiscite in 1999, largely because of divisions on the republican side. I have explained in the book that I have always favoured the so-called minimalist solution to this question with a president being substituted for the Governor General and having essentially the same role. I think that such a president should be appointed by the federal parliament but there is obviously support in the community for the proposition that he or she should be the product of popular election.  This has the potential, in my view, to set up a rival to the prime minister and lead to significant political problems, quite apart from the likelihood of an elected president coming from the ranks of game show hosts or ageing movie stars.  I am not sure how this problem can be solved and it has rather affected my own enthusiasm for the republican movement.

One of the other difficulties with the constitutional change that would be required for Australia becoming a republic is that quite a number of people would like to use the opportunity for a whole series of other constitutional changes. This would make it much more difficult, in my view, to have the change to a republic approved but there are other objections to some of these ideas. Over the years I have written quite a bit about proposals for a bill of rights in Australia and I have dealt with this again in the book. My objection to a bill of rights – whether constitutionally entrenched or in a statute – that it is simply a transference of economic, social and political questions to unelected judges. Those issues don’t become legal issues by being handed over to the courts.  They remain economic, social and political issues but ones that are now decided by the courts instead of the parliament.

This has already happened in Victoria and the ACT. At one time, almost a decade ago, it seemed that a bill of rights would be enacted in most of the states and at the federal level. This push was successfully resisted but the proponents of a bill of rights are relentlessly active. They include most of the legal professional bodies, many academic lawyers and the staff of human rights organisations. Most of these persons, it might be noted, are publicly funded to carry out these campaigns.  The problem is that there is really no countervailing force to this dedicated group who spend considerable amounts of time lobbying governments around the country.

There is a proposal that a bill of rights be enacted by the new Queensland government and, needless to say, it has been flooded with submissions from these groups advocating the introduction of such a statute. A cynic might say that these lawyers have a financial interest in its enactment. A bill of rights does generate substantial litigation but these groups have a strong belief that courts are better qualified than parliaments to decide the important questions in our society.  It is easy to point out the deficiencies of a parliamentary democracy but as Churchill was inclined to say, that is only until one considers the alternatives.

In 1998 I took up the post of NSW Solicitor General, remaining a barrister but with only one client, that is, the NSW government. This post seems to be mysterious to many people so I might say something briefly about it. Its very title is in some ways confusing because the role is carried out by a barrister but one who is called a solicitor!  The office had its origins in England of the fifteenth century and still in England and in Australia the Solicitor General is the Second Law Officer of the Crown after the Attorney General who is the First Law Officer. There is a Commonwealth Solicitor General and one for each State and each of the two Territories. In Britain the Solicitor General is a member of the House of Commons and so a politician as well as a lawyer.

The Solicitor General is essentially the government’s chief legal adviser. In theory, of course, this is the role of the Attorney General but it is now unusual to have an Attorney General who has practiced law for any length of time before going into politics and electoral and parliamentary duties leave little real time for attending court or working on advices. So the Solicitor General appears in court in major cases for the State of New South Wales, particularly but not only constitutional cases in the High Court, the Court of Appeal and the Federal Court. In addition, a major part of the job is dealing with requests for legal advice from the Attorney General, other ministers, departments and government agencies. This might often be a question of statutory interpretation, for example, as to whether a government body has the power to do something that it wants to do under legislation but almost any area of law can arise, including such diverse fields as contracts, negligence, taxation, charitable trusts or mining law.

It might be thought that constitutional cases in the High Court reflect a struggle over powers between the Commonwealth and the States but this is generally not so. It was so for some decades after the war but the combination of the Commonwealth’s financial dominance and the High Court’s expansive reading of Commonwealth powers under the Constitution has made those contests largely a thing of the past.

The only real exception in recent times was the states’ challenge to the Howard government’s Work Choices legislation in 2006. The states’ challenge was rejected, as any first year law student could have predicted but this was a political and not a legal exercise. Most constitutional cases now involve a challenge to federal or State legislation by individuals complaining about the impact of the legislation in question on themselves, often in areas of law enforcement, such as police powers or anti-terrorism measures. In these circumstances it is usual to find the Commonwealth and the States, represented by their various Solicitors General, all in agreement at the Bar table in the High Court supporting the relevant legislation. Occasionally, there is a breakdown in this united front but not very often.

When I took up the post of Solicitor General I did not imagine that I would be spending a great deal of time on criminal law but it comes up frequently in my work and I have been involved – in the appeal courts rather than at the original trial – in some very well-publicised cases in New South Wales over recent years. Quite a number of these cases involved the relatively small group of persons who was sentenced before real life terms were introduced in 1989 but whom the government of the day was determined not to release from prison.  Challenges were mounted to the legislation implementing this government decision by Allan Baker and Kevin Crump who had abducted Virginia Morse from a family property in Western New South Wales late in 1973 and finally killed her. Another challenge was mounted by two of those convicted of killing Janine Balding in 1988 after she had been abducted from a railway station. All of these cases went to the High Court but all of the challenges were ultimately unsuccessful.

Two other appeals in which I was involved for the Crown that received a great deal of publicity were those involving Kathleen Folbigg and Bruce Burrell. Mrs Folbigg was convicted of killing her four children in 2003 and the question was whether these deaths could have been classified as cot deaths. Mr Burrell was convicted of kidnapping and murdering Kerry Whelan in 1997 after she was last sighted leaving a car park in Parramatta.  The body has never been found but Burrell’s conviction was upheld on appeal as was that of Mrs Folbigg.

In recent times in New South Wales the Independent Commission Against Corruption has generated a great deal of legislation and litigation.  I have been involved in two cases in the High Court this year concerning the ICAC. The first was a challenge to the cancellation of a number of coal licences following hearings last year by the ICAC as to how those licences were awarded. That challenge was unsuccessful. The second case was a challenge to legislation validating some of the actions of the ICAC after the High Court had held that the ICAC had exceeded its powers in conducting an investigation into a Crown Prosecutor, Ms Margaret Cunneen SC. It was also unsuccessful.

To go back to the start then, the things that I have talked about tonight I hope give some idea of the material that is dealt with in the book and how it covers some aspects of legal, literary and political life in Australia over the post-war period.  We inevitably lose a great deal of historical material with the passage of time but I have tried here to preserve a record of some of the events that I have seen at first hand or written about myself.