Rather His Own Man

by Geoffrey Robertson

  In due course we were allocated to work for a partner, and I manoeuvred myself into a role assisting Graham Cooke. He was a careful and conscientious solicitor, and he had to be – his job was to keep Gordon Barton, with whom he had studied at Sydney University, out of prison. Gordon saw the law as a way to batter open doors closed during the dreary years of Menzies bureaucracy. He had become, as I joked, ‘the fast buccaneer’, expanding from his trucking company into merchant banking through Tjuringa (Aboriginal for ‘sacred totem’) Securities to set up mutual funds and other financial products.

  My role in the Barton empire was street-level, but not insignificant. I had to take the prospectus for each new Tjuringa company or fund for registration at the Companies Office. If I could persuade the officials that the glossy brochures with front-cover pictures of the Harbour Bridge and partly built Opera House were not in fact representations that Tjuringa’s ‘Fund of Funds’ actually owned these prime pieces of real estate, Graham breathed a sigh of relief – his client was still on a slim leash of legality.

  Soon Gordon and I were meeting for coffee, and he did his best to seduce me away from the law, offering me the editorship of one of the radical newspapers he was planning to launch to support his new Australia Party. I referred him to Richie Walsh (whom he lured from what would otherwise have been a great career in advertising) to edit Nation Review. I resisted Gordon’s blandishments – I still had starry-eyed trust in law as a lever for social progress.

  I did not stay long in Gordon’s turbulent corporate milieu, but he and his partner, Mary Ellen, were warm and generous friends over the years. They occupied Ken Tynan’s lovely house in Kensington, where I met Francis James, styling himself as ‘James the butler’, and where the conspiracy to publish Spycatcher was hatched. For some years they ran an almost overnight delivery service – TNT Air Express – between Sydney and London, and they came to my fortieth birthday party with forty dozen reasonably fresh Sydney rock oysters. The guests, who had not experienced the delicacy, were overwhelmed – as was I, by their kindness. They had a Sydney home – a mansion on the Vaucluse waterfront called Loch Maree, with a large and comfortable boathouse said to have been used for assignations by Prince Philip. They made it available for me to use for some weeks when my assignations with Kathy Lette excited the interest of gossip columnists; we could look out on the loveliest view in the world, without the world looking in.

  As vice-president of the student Law Society I did not abandon demanding abolition of articles of clerkship. In 1968 I published with Denis Harley some damning evidence in our ‘Guide to Articles’: 20 per cent of clerks received no training at all over their three years, while 60 per cent would receive no training in commercial law – because they were articled to firms that did not do commercial law. Many solicitors exploited these students (if they were well-built rugby players, as debt collectors). Our research conclusively established that over one hundred qualified students would each year fail to join the profession.

  The Law Society was forced to act, and did so under the leader ship of an Allen’s senior lawyer, Alan Loxton, called ‘the Boy Scout’ by his more cynical partners. The reform of the system of professional training of lawyers in New South Wales owed much to Loxton’s belief that all who sought to enter the profession should have an equal opportunity to do so, and he insisted that his own firm must do the right thing by its clerks. He had chaired the committee which had chosen me, and eventually he allowed me to work in his room and on his matters. He may not have approved of my later activities (‘I suppose you will become as infamous as Germaine Greer,’ he once wrote) but he was a good scout and conscientious teacher and we got on well.

  My student politicking and work for Gordon Barton meant I missed many lectures – I borrowed the notes of a friend with good handwriting – but I made an exception for Trevor Martin, a civil liberties barrister who taught the law of evidence and was fascinated by its intellectual challenges. He would obsess over the ‘best evidence’ rule, an archaic principle developed before the invention of the photocopying machine which prohibited the introduction of a copy if the original – the ‘best’ evidence – was available. After I left uni I never thought of it again, until thirty years later in London when I found myself defending some American musicians with odd names – Dr. Dre, Ice Cube and so on – who were members of a group called N.W.A. – Niggaz Wit Attitudes. The tabloids called them ‘Niggaz wit Mansions’ and incited Scotland Yard to seize their first album which had reached Britain in the form of 100,000 cassette tapes. The police were pretty confident of their case that the cassettes were indecent imports, and they served us with their evidence in the form of a transcript of N.W.A. songs – ‘To Kill a Hooker’ and so on. My wife almost threw up – ‘How can you possibly defend them?’ This must never be said to a barrister, because it will always elicit the response ‘Just watch me’. In no time I had found an expert witness who opined that N.W.A. was producing ‘street journalism’ for the public good. I doubted, however, that the three elderly magistrates would have the street wisdom to appreciate it, and Scotland Yard was already preparing to have the cassettes crushed and dumped somewhere in the North Sea.

  The point when the prosecutor proffered to the court the transcript of the lyrics was the moment when memory suddenly flashed back to Trevor’s lectures thirty years before, and I jumped up: ‘Objection. This evidence is inadmissible. Under the best evidence rule, you cannot find N.W.A. obscene by reading a transcript of their lyrics, you must listen to the original article – the cassette tape – which is the best evidence.’

  After a mad scramble in old textbooks, the court had to agree, and called on the prosecution to play a confiscated cassette. So confident were the police of victory that they had not bothered to bring a cassette player to court, and a ghetto-blaster had to be borrowed from a passing black youth. N.W.A.’s cacophony resounded through the court for about ten minutes, until the chairman, hands over his ears, shouted, ‘We can’t understand a word! Case dismissed. With costs.’ (The last two words are always the sweetest.) N.W.A. – Ice Cube, Dr. Dre and the others – went on to chart-topping success in the UK and everywhere else. This case is still the source of my street cred: when I visit youth centres, kids sidle up to me and ask with awe, ‘Didn’t you defend Ice Cube?’ The case did not make it into the movie Straight Outta Compton, but perhaps will be seen in the sequel.

  My parents were blessed with a third son, Tim – later, he too went into legal practice, becoming my Sydney brother-in-law – and in 1962 they acquired a small block of land in a tiny suburb just below Lane Cove and built a house on it. Longueville was a quiet place, inhabited mainly by doctors and elderly but comfortably-off widows, although for a while Brett Whiteley’s family lived next door – my mother would tut-tut at the sight of him holding hands with his young girlfriend as they walked down the lane to the tidal pool. There were others of interest: John Newcombe lived around the corner, Nicole Kidman would live up the road with her family, and overlooking the ferry wharf was the house of Jane Perlez, a girl my own age with whom I bonded on the city bus. She was to become one of the world’s best journalists. She began as a cadet on the Australian, working there until Murdoch sacked the editor for writing anti-Vietnam editorials. She left for New York, vowing never again to work for a Murdoch paper, and soon made her name as city editor and ballet critic for the Post and media columnist for the Village Voice. Then Murdoch came to town and took over both papers, and true to her vow she resigned, giving up fame and power for a column in the small circulation Soho News. Eventually she was taken on by the New York Times, where she still reports from Kenya, Pakistan, China or wherever – her by-line on a story is a guarantee of its accuracy. I would later spend a lot of my working life defending journalists and became friends with the older generation of Australian newshounds – Phil Knightley, Bruce Page, Tony Delano (whose daughter married my brother Tim) and Murray Sayle – but always admired Jane, the girl on the bus.

&nb
sp; Our small family house in Lucretia Avenue is still there: it was where I would always come home, several times a year, for forty-five years, to kiss my parents and go to sleep in a bedroom full of memories. I was at its desk, working on an essay one sun-drenched afternoon in 1967, when the ABC radio news announced that ‘a very important frogman’ had disappeared off Portsea – it was some hours before the frogman was verified as Australia’s prime minister, Harold Holt. And it was in the room opposite – the laundry – that I had heard from my ashen-faced father of John F. Kennedy’s assassination. JFK had saved us from the Cuban Missile Crisis and I can’t think of any other politician for whom I have had such total trust – I was only sixteen, and far away from his faults.

  Longueville has changed now – the widows have been winkled out and replaced by lawyers, and the big houses at the end of the point are being bought by wealthy Chinese, but it still radiates the calm that comes from water and gum trees and genteel prosperity. In my teens I would venture along the wooden planks of the harbour pool, watching the vapour trails of the big jets landing and departing, their engine whoosh punctuated by the tinkling of masts in the bay. I had no doubt I would depart on one of them – but the time had come to settle upon a destination.

  For all the attractions of Boston (Harvard) or California (Berkeley and Stanford), the study of law in Australia was also tempting me to England. Certainly there were more exciting developments in the US, but London was where judges made our law, and where the English Law Lords decided our final appeals, in the quaint old Downing Street courtroom of the Privy Council. Interesting, to my juvenile legal mind, was the fact that the Privy Council’s reach extended to most other countries in the Commonwealth – it was still the final court of appeal for Singapore, Hong Kong, Malaysia, New Zealand, Mauritius and most Commonwealth countries in Africa. That meant it had a broad death-penalty jurisdiction, as capital punishment was still in full swing in most former colonies of the British Empire.

  John Kerr introduced me to Garfield Barwick, the chief justice of the High Court, who had been Australia’s premier advocate before becoming Menzies’ attorney-general. It was at a small dinner party, and Kerr encouraged Barwick to tell this wide-eyed student about his exploits in Downing Street before the judicial time lords of the Empire. Sir Garfield told me what appeared to be his favourite story, the one about ‘thirteen little Malaysians’. They were all communists sentenced to death for subversion, who had appealed to Her Majesty’s Privy Council to stop their executions. Twelve of them had the sense to retain Barwick, who appeared for them in Downing Street to take a very short and very technical point about the validity of the arrest warrant, which the barrister for the thirteenth appellant, who made a florid appeal about the iniquity of the death penalty, did not bother to take. When the judgment came down, Barwick’s argument had succeeded and his twelve clients were released. The thirteenth, whose case was the same in every way, failed in his appeal and was hanged. Everyone at the table laughed – that’s what happens when you don’t retain Barwick. I found the story shocking but also intriguing – so you win human rights cases not by emotional rhetoric but by becoming a good lawyer. Maybe one day I could persuade these mighty lords of English justice to strike down death penalties because they were legally as well as morally wrong? That would mean I would have to go to Britain for postgraduate study.

  The Barwick story did make a necessary point, for those who seek to practise human rights law. It is that a solid grounding in common law and professional practice is essential equipment for success. So many bright-eyed and bushy-tailed idealists think they can jump into human rights work after a quick law degree, but if they want to make a difference they really must first learn technique and technology. The practical skills I learnt from Alan Loxton and Graham Cooke were the secret of such success as I have had. Plus my grounding in the jurisprudence of Sir Owen Dixon – study of his work provided me with a forensic hinterland that always came in useful.

  I became less enamoured of Dixon – as a man rather than a legal mind – when I learnt more about him. Back in the fifties, the British Lord Chancellor tried to develop the Privy Council as a real Commonwealth human rights court, with judges from African and Caribbean countries sitting alongside English and Australian judges. Dixon wrote him some disgraceful letters, to the effect that he could not bear to sit alongside a black judge. He seemed to suffer from pathological racism.

  Menzies had appointed him to the critical wartime position of Australia’s ambassador to Washington, but in 1943 he unpatriotic-ally undermined Dr Evatt, our foreign minister, who came begging the US to supply more planes and soldiers to fight the Japanese. Dixon reached out to Eleanor Roosevelt through their mutual friend, the US Supreme Court justice Felix Frankfurter, warning of Evatt’s temperamental ‘irritations and conflicts’. There was ‘no occasion for any new or special concern regarding Australia’ advised Dixon, who supported the ‘Save Europe First’ policy by which American forces and equipment would mainly be directed to the war against Germany rather than Japan.1 The cathedrals of Europe were, apparently, more important than preventing a Japanese invasion of Australia, whose exposure to it was ‘inescapable’. My father was, at that time, risking his life in the skies of the South Pacific, heavily dependent on American air cover, and it struck me that Sir Owen might have been a traitor to Australia as well as a racist. But his legal mind was second to none.

  The scholarships funded by the will of Cecil Rhodes were meant to identify ‘the best men for the world’s fight’ – not the best women, who were not allowed to compete until 1977. Cecil had a dubious background, initially having made his fortune by starting a rumour that a company (in which he held shares) had found gold, and then selling his shares before the rumour turned out to be untrue. His behaviour contributed to the Boer War and his subsequent conduct in the Cape was politically questionable and morally unscrupulous, but he won posthumous acclaim by donating his fortune to bring to Oxford scholars from countries as diverse as America, Australia, India, Jamaica and Germany – by 1970, about seventy a year in all, and one from every Australian state. A Rhodes Scholarship was well funded, and came with a guaranteed entry to an Oxford college. I decided to try for the New South Wales scholarship in preference to the Menzies award. The word around town was that my state’s selection committee was overly impressed by the ‘manly sport’ of rugby union and avoided ‘political’ candidates. I had played tennis for the university and been an outspoken SRC president, so I applied without any great expectation of success. I was, however, short-listed and summoned with other candidates to appear before the seven-man selection committee that would convene at Government House under the chairmanship of Sir Roden Cutler.

  My recent part in the acquittal of Sir Roden’s alleged tomato assailant did not bode well, and as the appointed hour approached I lingered over urgent corporate work in the office and misjudged the time it would take to walk to Government House. I was not aware that the selection would involve seven candidates rotating around the seven selectors, ten minutes with each, before being asked to withdraw so the committee could make its decision. (These days candidates are forced to eat a four-course meal with their selectors, presumably so their table manners can be taken into account.) The panel comprised three former Rhodes scholars, three leading businessmen and Sir Roden, who was tapping his wooden leg in impatience as I arrived a minute or so after the musical chairs had started. I had to think quickly to explain my lateness. My excuse worked in my favour. I had this important commercial client, you see, who needed immediate and urgent advice, and although it might mean ruining my chances of a Rhodes, I was bound by my professional code to put my client’s interests first. The businessmen certainly liked this explanation, which had an element of truth. Another selector was a professor of English at Macquarie University, with whom I had a hilarious conversation about the Leavisite split in the English department at Sydney – he characterised it as a fight between ‘the maddies’ and ‘the dullies
’. His was the only laughter in the large, lounge-chaired sitting room of Government House, and I felt I had one definite ally. But last came a man I knew only by reputation, and his reputation, as vice-chancellor of the University of New England, was not favourable to student politicians. His name was Zelman Cowen.

  To my surprise, he was a delight, and we struck up a most animated conversation about the role of law in improving society. He was obviously testing me but I saw no reason to dissemble – my goose, I assumed, had already been cooked by my tardiness. He was provocative and I allowed myself to be provoked. When the whistle blew to signal the end of the last inquisition (Sir Roden was nothing if not military), the seven candidates lined up and trooped out, leaving the selectors to decide, over tea and cakes. I felt annoyed with myself – had I not lingered over that urgent work, I might have been in with a chance. But I need not have worried. I learnt later that Sir Zelman had been my greatest advocate. Many years later, when Zelman was appointed chairman of the British Press Council, his most ardent critic would, ironically, be the man he had sent to Britain. The Press Council was paid by the press barons to pretend to discipline tabloid journalists. I wrote a book denouncing it as ‘a confidence trick which now fails to inspire confidence’, to which Zelman replied, ‘Mr Robertson shouts with reason.’ Neither of us, however, managed to reform the body before a committee of inquiry came to the same conclusion as I had, and it was wound up. My last encounter with Sir Zelman was on Hypotheticals, when I teased him about the advantages of a knighthood. ‘Does it help to get you a table at an overbooked restaurant? A speedier service from Telecom?’