Chambers would like to congratulate Mr Tobin on his 50th anniversary of joining The NSW Bar.
Past and current floor members celebrated with Mr Tobin and His Honour Judge Colefax SC opened the event. Mr Tobin took questions about his time at The Bar.
Below is a copy of Mr Tobin’s speech:
Farewell Remarks to the Floor
The lyfe so short, the craft so long to learn.
Eugenie was keen for me to say something which might be of value to newer members of the floor, and those of more recent call to the bar. So Bede has arranged for a Q&A session after my remarks … whenever that might be.
In my own experience as a barrister, so much knowledge and experience are absorbed like a sponge from colleagues, mainly but not exclusively in chambers. At Friday lunches or afternoon sessions that end the week, war stories are traded, and glowing descriptions offered of how the speaker bested his opponent – whether that be the opposing barrister, the witness, or better still the judge. The nice thing is that we never – well hardly ever – lose. And from that, you quickly appreciate that a certain native cunning is a close cousin to good court craft.
In the late 90’s the Bar marked the 50-year call of the eminent silks Chester Porter, Frank McAlary, and Tom Hughes. The proceedings are published and can be found on Austlii. The occasion was introduced by Barker QC, President of the Bar, as an essay in ‘bare-knuckle, forensic fighting’; but to me there seemed to be a lot more ducking and weaving than punching.
In the day, the listing system often failed to give you firm dates and times. If that was rough on clients, it was even worse on junior counsel being led by errant silks. Sitting in the Senate hearing room during the inquiry into Justice Lionel Murphy of the High Court and waiting for your leader to appear is one level of anxiety. It becomes much sharper when you realise that you are the third slot in turn to cross examine Lionel, and still no leader. At least in my second Supreme Court case, with Doug Staff QC leading John Traill and myself (until John was ‘called away’ for the final couple of days), Doug Staff gave me the tip before lunch that he wanted to get away to the country and I just might have to take over the closing address in reply. The opposing counsel was Murray Gleeson QC.
In the event, neither terror came to pass.
Happily, youth is nothing if it is not optimism informed by ignorance. Without which none of us would have survived.
Take the story of Governor Thomas Dewey of York who lost against President Truman in the 1948 presidential election. At one stage on election night, one newspaper even mistakenly called it for Dewey. After that disappointment, he returned to the practice of law on Manhattan and joined a famous New York law firm as its most famous partner.
One Saturday morning Dewey called the office to find an associate to do some work for him. After getting a young associate on the phone, Dewey explained at some length the work he needed to be done and the fact that he needed it done immediately.
The associate told him very politely that she could not possibly do any more work over the weekend, because she had a project she was already working on which had to be completed by Monday.
Dewey could hardly believe his ears. He asked the associate, “Do you know who this is?” When the associate replied that she did not, he told her,” This is Thomas Dewey.”
After a pause, she asked,” Do you know who this is?”
When Dewey replied he did not, the associate quietly hung up the phone.
But cunning or optimism, bombast or smiley charm only go so far. The great antidote to our fears of the unknown has always been the support of fellow barristers.
Unfortunately, one of the casualties of the pandemic and the disruptions of the last few years has been an erosion in the opportunities to mull over problems with colleagues.
This has taken place alongside one of the great changes in the law over the past half century: the vast increase in statute law and administrative tribunals, with a concomitant shrinking of the role of common law judges in making the law.
A decline in understanding of the common law and its role in the administration of justice has resulted. At his swearing-in as Chief Justice of NSW, the Hon. James Spigelman said:
We are the inheritors of an 800-year-old tradition which represents one of the most extraordinary constructs. The common law and the adversary system – a manifestation of the power of Socratic dialogue – is one of the greatest mechanisms for the identification of truth and the maintenance of social stability that has ever been devised…The judgments of this court are part of a broader public discourse, by which our society and polity affirms its core values, applies them and adapts them to changing circumstances.
Sir Owen Dixon, Chief Justice 1952-1964, was once described by the Honourable Jim Spigelman as heading “one of the greatest common law benches of history”. In saying that, he was aware of the competition: the House of Lords, the US Supreme Court, the Supreme Courts of the Dominions, the Privy Council, and other faithful remnants of the twilight of Empire.
In 2019 a new edition of Jesting Pilate, Sir Owen Dixon’s speeches and extrajudicial writings, was published. It was edited by the Honourable Susan Crennan and the Honourable William Gummow, both recently retired from the High Court.
In those speeches and writings, Dixon spelled out to US lawyers among others his understanding of how the common law is the foundation of Australia’s written Constitution. In brief, the liberties of the subject under the Westminster system are by implication part of the Constitution. Without the common law, we would have no democratic, representative government as the defining feature of the Federation. The common law provides for us the protections which in the US are to be found in their Bill of Rights. On this view, a decline in our grasp of the common law and our reverence for it is a threat to the constitutional order.
Let me provide a couple of examples from recent times of how disdain for or ignorance of the common law threatens basic liberties.
- In the 1990s, the Victoria Police used a barrister named Gobbo as a secret informer to betray the professional confidences of her clients in criminal cases. This went on for years. When it reached the High Court, in AB v CD  HCA 58, the judges held her conduct was a fundamental and appalling breach of her obligations as counsel to her clients and her duties to the court. Likewise, they found that the police were guilty of reprehensible conduct in knowingly encouraging her to do so and were involved in sanctioning atrocious breaches of the sworn duty of every police officer.
- Following a Royal Commission 2018-2020 and the Nettle inquiry 2021-2023, the Victorian DPP seems to have concluded that there was nothing to see here. When shown the evidence gathered by the Honourable Geoffrey Nettle, she decided not to prosecute. Without her decision to prosecute, no one will answer for this debasement of the fundamental principles of the criminal justice system. Only the acerbic condemnation of the High Court remains. Thus, the rights to a fair trial, handed down from Magna Carta and the Bill of Rights 1689, and enshrined in the common law, are lost.
That example concerns the criminal justice system at the state level. In my view, just as egregious a flouting of the rule of law has been underway at the highest level in the federal government.
- In the lead up to the last federal election, the then Prime Minister appointed himself to a portfolio in order to reverse its minister’s decision (to do with offshore drilling) and thus pander to the wishes of the voters in what was shaping to be a swing seat.
- He seems to have caught the bug and so he compounded his wrongdoing by secretly appointing himself to several other ministries which already had sworn-in ministers of state administering them. Only his shadowing the health minister was known about. Secrecy hid the rest.
- The Governor-General signed off on this string of violations of the Westminster system and the constitutional conventions of Cabinet Government. After all, he received emails from one or other of the dozens of staffers in the PM’s office telling him what they wanted done. There is no record of his having questioned the propriety or the legality of these measures.
- Did the Governor-General overlook his oath of office to “do right to all manner of people after the laws and usages of the Commonwealth”? Apparently, the Governor General, who had at the time 8 years in vice-regal office, seemed to think that he had no option other than to do what he was told. Again, secrecy hides all.
- The essence of the problem seems to be that neither David Hurley, nor his staff, nor the Prime Minister, nor his staff, nor the public service, had the slightest investment in what constitutes the laws and usages of the Commonwealth. If they had, this disregard of constitutional law could not have happened. So much for the right of the monarch’s representative to query and question. So much for the robustness of the common law.
Speaking personally, this conduct strikes me as egregious a violation of the Constitution as Gobbo’s was of the rule of law.
You would be justified in protesting: what are we supposed to do about that? It is a valid question to which I will attempt a brief response.
First, all of us who have been admitted to practice took an oath in the following terms: “I will truly and honestly conduct myself in the practice of a barrister of the Supreme Court of NSW and I shall faithfully serve as such in the administration of the laws and usages of this state according to the best of my knowledge, skill and ability.”
Judges, ministers of state, lawyers in their roles as ministers of the justice system are all pledged to uphold those laws and usages. That assumes of course a duty to know what the usages and laws are.
As Dixon saw it, the barrister stands between the power of the state and the freedom of the citizen. The role of the bar is to challenge the assertions of power made by the state and, on behalf of clients, insist that acts of governments are permitted by the written and the common law. That much did Dixon’s judgement in the 1951 Australian Communist Party Case teach us.
Secondly, the initiative taken by the floor with the active involvement of the Clerk to run regular CPD’s on the floor given by floor members has been a great boon. It has been accompanied with a willingness to invite outside speakers with something to say about the enduring role of the common law in our institutions.
Thirdly, it is a challenge to work hard to preserve and expand the collegial side of chambers which is the heartbeat of the profession. For, as I said earlier, I think exchanges with fellow practitioners are central to the way we learn and master our profession.
I would like now to record my heartfelt thanks to the Clerk and to you, and all my floor colleagues over the years, for the friendship and intellectual rigour which comes from being members of a floor of barristers. I won’t try to spell that out now. I think you will understand.
Let me conclude then these 50 years, rather wistfully, with what Chaucer wrote:
“The lyfe so short, the craft so long to learn.”
It so happens that Chaucer was talking about the art of love. But we all know what he had in mind.
T K Tobin
21 July 2023