“The life of a barrister is, and should be, a passionate and accountable life.”
I am a barrister, a Queen’s Counsel, working from Melbourne but doing cases throughout Australia. And ‘by night’ I am a Professorial Fellow of Law and Psychiatry – a Professor – at the University of Melbourne.
Two subjects that have fascinated me since the time I was at school have been law and medicine. When I studied at the University of Sydney in the late 1970s and 1980s, I did a combined Arts/Law degree. However, I decided to transfer to medicine at the end of first year, along with a good friend of mine. I was none too inspired by my first law subject.
All the arrangements were made, and then my friend was killed by a truck. It took me some time to come to terms with the tragedy and by that time I was in my second year of law and the momentum, along with some of the impetus for change, had been lost.
The two degrees, including Honours in English and Latin, took six years and I secured a job at a large city law firm, which was what many law students aspired to then, as now.
After a few weeks, I realized I was not interested in that type of corporate work.
I didn’t like the people and I didn’t like the work. I didn’t fit into the big firm culture and its values. So I left and started post-graduate study in English and Latin, mostly for want of other options.
At the same time, I did a Diploma of Therapeutic Massage, which used an entirely different part of my brain and was practically useful – everyone left me feeling more comfortable, perhaps not cured, but better. It was very rewarding to be able to have such an effect on people in pain or discomfort.
I still think of it as a profession that I can fall back on!
Next, because of the subjects I had studied, I was offered a job teaching Latin and Greek to trainee priests at a seminary on the hillside outside Manly. It was a little tricky, as the job required teaching New Testament and Early Church Father Greek, whilst the Greek with which I was most familiar was the ancient Greek of Homer, Sophocles and Demosthenes.
However, I adapted and managed it after a fashion, because I needed an income in order to fund study and surfing. I surfed a lot back then! It was a great time: studying things I enjoyed, learning to be a masseur, teaching Latin and Greek, and spending plenty of time in the water, and even starting to do climbing internationally.
And then I was contacted by an acquaintance saying that the Australian Law Reform Commission (ALRC) wanted someone to undertake some editing work on a small project to do with law reform. I did it for extra cash for a surfboard. It was very straightforward and I finished the job quickly.
As a result of that, Justice Michael Kirby, who was the head of the ALRC and a very charismatic and inspirational figure, offered me a job to be a Law Reform Officer doing legal research for the ALRC.
The Commission was an extremely influential body: 87% of its recommendations at the time made their way into the law of Australia.
Yet I said “no” because I was having too much fun with my life at the time. But I was then reminded on Justice Kirby’s behalf that should I take the role, I was likely to be appointed a Senior Law Reform Officer within about twelve months, earning triple what a new graduate at a big solicitor’s firm would earn.
That made me suspend my dislike of the legal world, and I took the position. I am glad I did. I spent five happy and highly formative years at the ALRC under Justice Kirby’s mentoring. Much later I was to edit a festschrift in his honour, a large collection of essays about his career – Appealing to the Future: Michael Kirby and His Legacy.
As promised, I was promoted to a senior position within a year, and participated in the writing of reports to reform the law in relation to the adducing of evidence in the courts of Australia, changing the law to do with contempt of court and also to do with aboriginal customary law.
So, it was a very interesting time – a formative period being guided by some of the foremost law reform minds in the country.
And the reports had major input into the law throughout most of Australia.
After around five years, I was offered a role to be Counsel Assisting the Police Complaints Authority (PCA) of Victoria, a body established by parliament to investigate police corruption and misconduct. I moved from Sydney to Melbourne to do the job.
Again, these were very interesting times. It was the first occasion allegations of police corruption and misconduct had been assertively followed up and analyzed from the outside, and the Victoria Police were not used to such scrutiny, nor to dealing with the consequences of adverse findings against individual police members.
We would follow up complaints received by the Authority, and investigate them, using coercive powers, often needing to interrogate the police officers.
If the complaint proved valid, there were adverse findings (tabled in Parliament) with the potential for police to be disciplined. As you can imagine, my work was not appreciated by many within the police force.
Perhaps because we did too energetic a job, perhaps because we were too uncompromising and insensitive in how we went about the process, the PCA quickly became politically unwelcome, and I became extraordinarily disliked by members of police forces throughout Australia.
I learned much from the experience.
The PCA was a complex and controversial body and it was closed down by parliament within two years in 1988. I had to consider my options, and decided to stay in Melbourne and to enter practice as a barrister, although I had not been to university or school there and had few connections.
It was a real career gamble.
Although I had worked at quite senior legal levels as a lawyer, and had already written my first books (on expert evidence, and on policing), I had not actually practised law as a solicitor, so had negligible practical knowledge or skill.
I started out doing little cases in suburban magistrates’ courts to build up my experience. Because of the notoriety I received through my work at the PCA, people assumed I knew a lot about criminal law, which in fact I didn’t. But as the work from legal services and Victorian Legal Aid came in, I learned as I went.
I was fortunate relatively early to be briefed as counsel for the Council for Civil Liberties (as it then was) and for families of persons fatally shot by police in very high profile inquests and then in a big case involving the State’s removal of children from a cult, the Children of God.
That was a fascinating experience in which I learned a great deal about “coercive persuasion”, the psychological pressures which can result in young people being lured into membership of unorthodox, often religious, organisations and then adopt surprising views and lifestyles, afterwards finding it very hard to leave and reintegrate into the general community. It was an example of legal issues having enormous and complex ramifications for social issues such as parental rights, religious freedom and lifestyle choice.Hard and often irreconcilable conflicts of human rights when issues such as children‘s wellbeing and safety are added to the mixture.
The Children of God case lasted for two years and contributed to my starting to become better known as a barrister.
I had the advantage of working with a legendary barrister, Frank Costigan QC, famous from being the Royal Commissioner in relation to the Painters and Dockers. He became a great mentor for me in my career at the Bar.
As the years passed, my cases became more substantial and more challenging. For the first fifteen or so years of my work as a barrister, I did mostly criminal work, and some children’s and human rights work.However, I still retained a strong interest in medicine, so eventually I moved into doing mostly personal injury and medical negligence cases for plaintiffs and for defendants, later on administrative law and human rights cases.
In fact, much of my work as a barrister over the last thirty years has involved a connection between law and medicine.
Many of my criminal cases involved a considerable amount of expert evidence, which is an area of particular interest to me, about which I have written a number of books. I have appeared in many of the major coroners’ inquests around Australia over the past two decades and I have done quite a deal of advisory work to do with law and health.
I prosecute and sometimes defend health practitioners and lawyers when allegations of misconduct or impairment are made against them. Examples have been the disciplinary case against “Dr Death”, Jayant Patel, in Bundaberg in Queensland, and Australia’s second longest disciplinary case, involving a chiropractor, Malcolm Hooper who provided hyperbaric oxygen therapy to patients in Melbourne.
I have been editing the Journal of Law and Medicine for twenty five years and also the journal, Psychiatry, Psychology and Law, both of which I founded. So, these are my interweaving interests and activities that inform much of what I do as an advocate.
There is something raw and fundamentally meaningful about the way in which health issues and the law intersect.
The law plays a crucial role in how health practitioners are allowed to practise – the standards that they’re expected to adhere to, and strict rules about what they can and cannot do. This may be true for any regulated industry, but what is distinctive in the relationship between law and medicine is that it is involves questions of life and death, disease and impairment – morbidity and mortality.
I am very committed to a stream of thinking called therapeutic jurisprudence, which is an attempt to build a bridge between health and social sciences and the law.
Health and law often have an uneasy relationship.
Too often health professionals see law as an obstruction, an impediment to practice. Frequently lawyers do not understand much about the pressures faced by psychiatrists, psychologists, surgeons, general practitioners. Therapeutic jurisprudence is a lens through which the health sciences can be viewed by lawyers and a way of facilitating constructive exchange between health practitioners and lawyers.
It attempts to incorporate therapeutic considerations in the way in which laws are written (and reformed), interpreted and implemented. Much of my professional life has been devoted to enhancing this interaction and discourse between health practitioners and lawyers.
I have done a great deal of fascinating work related to the regulation of health professionals.
Aside from individual defence and prosecution cases, I have held positions on the Medical Practitioners Board of Victoria and the Psychologists Registration Board, as a lawyer board member.
Such boards play a role in regulating the 14 registered health professions in Australia.
In the past they received and also adjudicated upon complaints, occasionally removing doctors, dentists, nurses and others from practice, temporarily or long term, or imposing conditions. Now it is independent tribunals that perform this function.
I hope my perspective is balanced by reason of being an advocate, a tribunal member and an academic. I strive for rigorous accountability, but try to exhibit an empathy in recognition of the challenges of practice that require doctors, for instance, to grapple with confronting issues such as abortion and euthanasia, “agony of the moment’ decisions during surgery, and allowing or disallowing parents to decline life-sustaining treatment for their ill children.
An aspect of work in which I have been fortunate to be able to contribute is that I have sat as a decision-maker on ten different tribunals – to do with doctors, psychologists, teachers, out-of-home carers, people seeking social security benefits, and persons who lose their liberty by reason of mental illness.
I still sit on Victoria’s Mental Health Tribunal. Somewhat to my surprise, I discovered that I really enjoy chairing hearings and writing decisions: running hearings with sensitivity and empathy so that people get a fair go, are enabled and encouraged to say what they can, and then explaining to parties why the outcome is as it is.
My work has often presented issues that were acutely challenging to me at a personal and an ethical level.
I have had to think deeply about where I stand on questions such as whether people should be allowed to die with dignity at a time of their choosing or utilizing the help of others, such as their doctors, whether people should be able to have access to forms of medication that are not lawful, whether the law needs to change in fundamental ways to enable provision of new kinds of treatment, whether cloning of embryos ought to be allowed, whether people should be allowed to select the gender of their offspring, what should be the constraints of health tourism.
As an example, I recently spent some time as a Commissioner at the Victorian Law Reform Commission running its reference (given by government) on medicinal cannabis.
It involved consulting people throughout Victoria, reviewing the state of knowledge about the efficacy or otherwise of medicinal cannabis, assessing its risks, and then making recommendations to the government about whether cannabis ought to be legalized for therapeutic purposes.
It was a fascinating exercise.
It involved meeting people who claimed that their illnesses, or their children’s, had been helped by a drug which at that stage was illegal. I met countless children, who their parents said at community forums, had been assisted in their epilepsy by the medication.
It involved evaluation of the clinical literature in respect of the effectiveness of medicinal cannabis for conditions such as terminal cancer, nausea and vomiting after chemotherapy, wasting as a consequence of HIV, chronic pain, multiple sclerosis and a variety of paediatric epileptic conditions.
We formulated just over forty proposals for change.
Two days after the government received them, they accepted all of the recommendations and implemented the Access to Medicinal Cannabis Act 2016. That is in the process now of being operationalized throughout Victoria. The influence of the Commission report has spread throughout Australia and I am now a member of the Australian Advisory Council on Medicinal Cannabis which advises the Commonwealth government on such matters.
In 2007, after 19 years at the Bar, I was appointed a Senior Counsel, now known as a Queen’s Counsel. A QC is a person appointed by the Chief Justice of the Supreme Court as a high performing advocate deserving the title as a leader at the Bar. It denotes a barrister who undertakes major cases in the courts, usually with a junior barrister, often in the Supreme Court or the Court of Appeal or the High Court.
It is a transformative step in the life of a barrister, and much sought after. About a dozen barristers are “given silk” each year in Victoria.
Essentially, what it meant for me was that the complexity and profile of my court cases increased significantly, and I was able to do highly challenging and more substantial work as an advocate.
A recent example of my work as a QC was to lead a large and very committed legal team in a high profile human rights case challenging whether children could lawfully be confined in a high security adult prison – at Barwon outside Melbourne.
It was real David and Goliath exercise.
We represented the children, many of them from Africa, against the government (including the Solicitor-General and Crown Counsel of Victoria) and broke new ground in making Victoria’s Charter of Human Rights and Responsibilities have teeth – genuinely work to protect vulnerable people’s rights.
Interestingly, I have come full circle in relation to police since my PCA days investigating allegations against them and forming a very antagonistic relationship with the Victoria Police in the 1980s.
In recent years, I have been consistently briefed by police forces to represent their interests in major cases throughout Australia.
One of these cases involved representing the NSW Police in the Lindt Café inquest in Sydney. The role of the inquiry was to explore the circumstances under which Man Monis, who claimed to be an ISIS terrorist, was able to take eighteen people hostage in the middle of the city. Three people died – Monis and two of his hostages.
The community needed to understand through the coroner’s investigation whether police had responded appropriately, whether the siege could have been handled better, and whether there were lessons to be learned for the management of future terrorist incidents. Furthermore, the families of the two deceased hostages victims had many grievances which they wanted to ventilate publicly in relation to the conduct of the NSW Police response to the siege.
The inquest, which was the largest and most expensive in Australian history, lasted two years.
The extremely challenging situations which police often find themselves in require them to make split-second decisions under enormous pressure. The stakes are very high, and the role of discharging a weapon if you are a police officer is a thankless one. Deaths at police hands take a terrible toll on all involved, including those who actually discharge the firearm, those who authorize such action and those who are affected by what is done.
It is the ultimate exercise of force by the State. My role in the Lindt Café inquest was to enable the many police involved in responding to the siege to explain what decisions were taken and why, as well as the pressures to which they were subject at that time – to give some insight into the complex decision-making processes where a man armed with a gun and purporting to have a gun is threatening to kill multiple hostages to the glory of Allah.
My relationship with the police continues, and I am currently representing them in Melbourne’s Bourke Street Mall inquest, where six people were killed and 27 injured by a vehicle being driven onto them in inner city Melbourne, and the Brighton terrorist inquest.
All through my career, there have been difficult cases that demanded much both professionally and personally.
Often, I am dealing with traumatized people and becoming engrossed in tragic or reprehensible actions. Every case is fascinating in terms of its human elements – why people have acted as they have – whether motivated by psychopathic ideas, whether mentally ill or whether they have just lost perspective because of the effects of drugs or pressures or vulnerabilities personal to them.
However, I think I have a good temperament for dealing with this sort of work.
I try to stay reasonably emotionally detached from the circumstances of cases. I am not my client’s friend, confidant or psychologist. They need me to give them sound, professional advice about what best they can do legally, taking into account the full circumstances of the case.
Generally, I am able to compartmentalize work away from my family life.
Ironically though, my wife is a doctor, so she very well understands what I do and the pressures I am under.
She is incredibly supportive. In addition, my daughter and son are in the process of graduating as a doctor and a lawyer respectively, so the family is evenly divided into members of the medical and legal professions. It will be up to the little one still in high school to break the balance! But it does mean that I have a supportive family unit that understands the work that we all do.
Another challenge that barristers have is the haphazard nature of our work.
To start as a barrister is always tricky, because life as a member of counsel is erratic. The flow of work is never predictable and never guaranteed. It can be fantastic at times and really hard at others. It is the ultimate Darwinian environment – you are only as good as your last case, which means that it is as close as you get to a meritocracy but there is no place to hide if skills diminish or confidence wanes. Cash flow can also be extremely erratic.
I hate losing.
For me, there’s always a great deal of soul searching afterwards, reviewing my work and decisions, whether the case should have been presented better or differently. I think that’s a mark of a reflective practitioner, a characteristic in a barrister that is very important. If the outcome does not matter to the barrister, then they should not be representing clients. It is, and should be, a passionate and accountable life.
I am well paid to be extremely well prepared and utterly committed to arguing a case for a client, whether it be a corporate or institutional client, a governmental one or an individual.
Each deserves a complete commitment, if necessary night and day, and that is what I try to deliver.
However, I have learned to focus on the professional job that needs to be done and not prejudge – a good lesson for life generally, to celebrate the good times, not to be preoccupied for long by the bad ones, and to move on quickly to the next challenge, which, for a barrister, can be the next case the next day.
There are times when inevitably you get negative impressions about the client, such as when they have done something reprehensible, or when they are a member of a socially unacceptable cohort, and the challenge is to make sure that those considerations do not contaminate the quality of the professional work or the advocacy done on their behalf.
What I try to do is give clients honest and straightforward feedback about their case and how it is likely to be received, and thereby enable them to make an informed decision in their own best interests about the arguments to be advanced on their behalf and, if it is a criminal case, whether they would be best placed to plead guilty or not guilty.
It is much the same as a doctor giving options to a patient about whether to have a mastectomy or a lumpectomy or chemotherapy.
It’s important for lawyers to give to our clients the chance to make a considered and informed decision because it’s they who will do time in jail, bear adverse media publicity or have to pay large sums of money if their case does not work out as they hope it will.
So, clear and honest, forthright communication that is non-judgmental and without airs or graces, but taking into account the full context of their circumstances, in which their legal problem is usually just one component of their issues, is very important.
It is also vital, and every client’s entitlement, however unpopular they are, that they get the highest quality legal representation from people who are experienced and prepared to provide them with a voice which otherwise they would not be able to summon on their own behalf.
Another aspect of my career over the last thirty years has been my writing and teaching work.
I wrote my first book in 1987.
I was approached by Oxford University Press (OUP), again because of my work for the Australian Law Reform Commission. They requested a book about expert evidence. It involved doing research in relation to cases and issues where experts played a role in the courts, both criminal and civil, the big issue being what kind of evidence ought to be admitted and what sorts of people are to be regarded as “experts”.
The difficulty with expert witnesses who are very specialized, knowledgeable and articulate, is that jurors tend to defer to them. This is not a problem if the experts are right. But sometimes they are completely wrong or their methodology does not justify the conclusions that they reach.
The high profile Chamberlain, Eastman and Splatt scandals are examples of where expert evidence in Australia has gone awry.
So, my first book was concerned with the processes of ensuring that expert witnesses are made suitably accountable – so that they are cross-examined effectively; otherwise we have miscarriages of criminal justice and civil justice.
I felt confident taking on the OUP task, as it already related to the formal law reform work that I was doing at the time. It was interesting and enjoyable to forge my own project and be able to put those kinds of issues in the public domain, and thereby facilitate debate and potentially change the practice and the ways in which courts function.
Getting my first book published was very exciting.
I still vividly remember going into the Queen Elizabeth building in Sydney, into the Oxford University bookshelf, and seeing my book there. It was a wonderful, wonderful thing for a young lawyer to see and it probably gave me a zest for continuing to write.
In more recent times, I have relived the feeling seeing my book on Scholarly Misconduct in the OUP bookshop in Broad Street in Oxford.
Later, when I came to Victoria, I started writing and publishing on issues to do with policing. I commenced with articles for various publications, then contributing chapters for other people’s books, then eventually more of my own books.
In 1993 I was asked to start the Journal of Law and Medicine, and in 1994 another journal, Psychiatry, Psychology and Law and my interest in health law developed further from there, as did my writing on related subjects.
There have been all manner of other books (and over 600 articles and chapters) on criminal law, law and medicine, law and mental health, coronial investigations, therapeutic jurisprudence, the concept of causation, criminal injuries compensation, administrative law, regulation of health practitioners, and badly behaving academics. I am currently working on a book on Quackery and the Law.
With the wisdom of hindsight, perhaps I should have spent less time being absorbed in my preparation for cases, writing scholarly pieces on my computer, and deciding cases that I have heard as a tribunal member, and more time interacting with my colleagues.
Not that I have become remote from them, I hope, or that I am antisocial, but I have been very busy with the combination of things that I do.
It may have been more advantageous to me if I had spent more direct time with solicitors and others outside court. But, I’m not a great one for spending time in pubs or schmoozing with people. I prefer to let my work speak for me rather than trying to promote myself. And ultimately I have loved each aspect of my tasks in courts, tribunals, lecture theatres or public addresses and have been determined to do them as well as I possibly could. This involves compromises.
Perhaps due to my writings, I got my first appointment as a Professor of Law in my 30s, which was very exciting for me. I have since had a number of professorships in different universities. Currently I function as a Professorial Fellow of Law and Psychiatry at Melbourne University, Forensic Medicine at Monash University, Law at La Trobe University and in Health Law at the Queensland University of Technology.
I lecture in health law and human rights, mental health law and regulation of health practitioners to post-graduate students.
I am also a co-director of the Master’s program in Health and Medical Law at Melbourne University, which means I help building the curriculum and guiding the evolution of the course.
I teach in seminar form to people who already have degrees in medicine, law or other related disciplines. The seminars are really stimulating, because they are cross-disciplinary, allowing the students from different backgrounds to have meaningful input and discourse. So, I confess I learn a great deal from them.
I hope some of them learn something from me as well!
My aspiration is that students come away from my courses with a range of insights, a broadened vision. I want the health practitioners to gain an understanding of the culture of the law, of legal structures and of the broader societal repercussions of their clinical decisions.
And for the lawyers, I want them to acquire a better appreciation of how clinical life works, and the decision-making and traumas and pressures that bear upon those who are actually delivering services. My latest book on Tensions and Traumas in Health Law is directed toward such objectives.
This year I was awarded a Doctor of Laws degree which is what is called a higher doctorate. Only half a dozen of these degrees (as against the honorary LLDs) have been awarded by the University of Melbourne in the last forty years, so it was a great honour to receive it.
I am content with how I have constructed what is a complex professional life.
After three decades I still love my work and, just about every day, am excited to be going in to chambers. I have sat on many different tribunals as a decision-maker. I have been a professor in a number of different universities, written many books and edited journals and given more than six hundred professional addresses in more than 30 countries, some of them quite exotic – I have just returned from giving talks in Oxford, Amsterdam, Tbilisi, Baku and Prague – a rewarding experience.
The scholarly side of my life is extremely stimulating and international.
However, the main thing that I do is to represent people in the courts.
I think I have learned to do it a great deal better by what I have learned in the scholarly domain and also in a decision-making capacity as a tribunal member. So, I wouldn’t change any of the complex tapestry of my professional life even though it is an unusual combination of aspects of work as a lawyer.
I intend to keep doing what I do, hopefully for another couple of decades.
I enjoy immensely what I work at. The life of a barrister is extremely unpredictable. I don’t know what I shall be doing next but that is part of its allure. I may receive a call to represent someone in the Supreme Court tomorrow or even this very evening. So, it is endlessly stimulating and interesting and challenging. I hope to continue to do major cases in the superior courts, to keep making decisions as a tribunal member, to keep teaching, and to keep writing.