The Honourable Patrick Keane AC KC, Author at Hearsay

Address to the Queensland Bar Practice Course in Brisbane on 28 May 2015 by the Honourable Patrick Keane AC KC.

In Memoriam, the Honourable Patrick Keane AC KC presented the inaugural Bruce McPherson CBE Memorial Lecture on ‘Christian Inspiration and Constitutional Insights‘ on 21 March 2024 at the Banco Court, Supreme Court Brisbane, QEII Courts of Law.

Dedication

In an address to honour the memory of Bruce Harvey McPherson, it is entirely appropriate to speak of inspiration. For all those who had the great good fortune to benefit from McPherson’s deep learning, his wit and wisdom, and above all, his dedication to the doing of justice according to law, Bruce McPherson was truly an inspiration. Many lawyers of my generation who heard McPherson QC argue a case in court, or who read the learned, insightful, and beautifully expressed judgments of McPherson J, tried to emulate him, especially those of us who had the privilege of working with him at the Bar or on the Bench.

Bruce McPherson was the most erudite lawyer in Queensland; and amongst Australian lawyers, only he could have written a book of the depth and breadth of his classic text on company liquidation. After serving for ten years as a Justice of the Supreme Court, he was a foundation member of the Queensland Court of Appeal established in 1991. His judgments did much to establish that Court’s reputation as one of the strongest courts in the common law world.

Bruce McPherson’s great legacy to those he inspired was his insistence that our courts should seek to do justice according to law. This did not mean that the law should not change: McPherson was a great law reformer. As a member and later leader of Queensland’s Law Reform Commission, the Trusts Act and the Property Law Act are abiding reminders of his success as a law reformer. He was deeply concerned that justice should be done under laws that were kept fit for purpose, but he was equally concerned with how changes in the law that should be achieved. The great contemporary contrast with his view was that of Lord Denning.

For McPherson, the cardinal judicial virtue was not a passionate commitment to doing what one finds personally agreeable, but fidelity to the rule of law.

Lord Denning was known for his passion for justice; to the extent of not letting the law get in the way of justice as he saw it. Lord Denning was greatly influenced by William Temple, the Archbishop of Canterbury, whom he described as “one of the greatest thinkers of the [20th] century.”[1] In Denning’s book The Road to Justice[2] he described how taken he had been with an address by Archbishop Temple to the Inns of Court Temple began with the words:

“I cannot say that I know much about the law, having been far more interested in justice.”

Temple’s observation was quite amusing; but there was, in its cavalier insouciance, an encouragement to those judges who find the law less merciful or generous than they think it should be to use their office to something about that. Denning was very much Temple’s disciple. McPherson, in contrast, was sceptical of judges who were disposed to regard their instinct for justice however passionate, as a surer guide to a just decision than the law of the land.

For McPherson, the cardinal judicial virtue was not a passionate commitment to doing what one finds personally agreeable, but fidelity to the rule of law.

McPherson insisted that the rule of law binds the judges as firmly as it binds the people and the other branches of government and the people. Just as legislative and executive power are limited, there are limits to the scope of judicial competence, Judges should not, under the guise of deciding what the law is, determine what the law should be where that involves usurping the authority of the people’s representatives to decide political questions of the kind that divide political parties. He was firmly of the view that justice is not a matter of judicial benevolence or of second guessing the legislative efforts of the elected representatives of the people. Bruce did not approve of the jurisprudence of the warm inner glow.

Doing justice according to law can be hard on people who feel that they are entitled to more from their fellow citizens. It can also be personally unsatisfying to the judge. But the wisdom of McPherson’s modest view of the proper scope of judicial power is apparent in the convulsions wrought in the United States by popular outrage on all sides of politics, against decisions on political questions by a judiciary that is seen to act as a super-legislature. To this point I will return at the conclusion of my remarks.

Introduction

It is a lament familiar in much contemporary discourse that, in liberal democracies of the West, Christian values and Christian institutions are waning in strength and influence to the detriment of their communities. Whatever merit there may be in these laments, they are, it seems to me, missing a bigger picture. We should be mindful of, and appreciate, the extent to which the constitutional arrangements of the liberal democracies in Australia and the United States actually embody an understanding of the relationship between the private individual and the community and its public institutions that is distinctly Christian in its inspiration. The civic life of our democracies is conducted within, and shaped by, this framework; and that remains the case whatever the level of Church attendance.

Our modern liberal democracies are, of course, multi-faith and multicultural communities. Church attendances may be in decline, and the influence in our public life of Church hierarchies and organisations may have declined over the last fifty years. But, if one considers the big picture one can see in the constitutional arrangements of Australia, and our cultural lode star, the USA, that central aspects of the Christian message have been absorbed and implemented in ways that permanently differentiate our liberal democracies from the alternatives, whether they be democratic, autocratic, or theocratic.

We should be mindful of, and appreciate, the extent to which the constitutional arrangements of the liberal democracies in Australia and the United States actually embody an understanding of the relationship between the private individual and the community and its public institutions that is distinctly Christian in its inspiration.

Before going further, I must acknowledge that crucial elements of the Christian message about which I wish to speak reflect ideas associated with school of Hillel as part of the rich intellectual heritage of the Jewish people. I also acknowledge that, as a matter of history, the absorption of which I speak was neither linear nor smooth: ambiguities in, and inconsistencies between, aspects of Christian thought roiled the lives of Christian peoples, and of their unfortunate neighbours, for nearly two millennia. Atrocities committed in the name of Christianity have shamed humanity with violence, bloodshed, intolerance, and greed. All that said, it remains true to say that, in the history of ideas, while the classical models of democratic Athens and republican Rome provided the basic ideas for the political architecture of democratic government in the West, the “liberal” element of liberal democracy embodies a distinctly Christian understanding of the relationship between the individual and the State, between the private and the public lives of its citizens.

The United States and Australia are characterised as liberal democracies, because their constitutions establish a system of government that postulates the individual as the basic moral unit of society, and the equal dignity of each individual without regard for difference in wealth or social position. The State’s legitimate role in the private life of the individual is limited by these postulates. This understanding finds its characteristic expression in constitutional provision for limited government, and the maintenance of these limits by the separation of governmental power between the legislative, executive and judicial organs of government.

Over the centuries Christian communities endured absolute monarchy and, in medieval times, tendencies to theocracy. That experience would eventually lead, with Christian inspiration, to the embrace of the notion that only the people themselves, recognising the equal voice, could be relied upon as the guarantor of the limits on the power of the State.

Paul and Augustine

Democracy as rule by the people originated, as the word itself suggests, from classical Greece – and Athens in particular. But the Athenian conception of democracy was very narrowly based. It also exhibited a strong totalitarian tendency. So did the civic life of the Roman Republic and Empire. In these models of government, there was little recognition of the private life of the individual. People, even those who consoled themselves with Stoic resolve, lived their lives in public. The value of their lives depended upon the accretion of wealth and social status. The closest synonym to the Latin word dignitas was “reputation” or “honour”. The dignitas of Julius Caesar was entirely a matter of his aristocratic lineage and the honours he won: and it completed by in his posthumous public recognition as a god.

Christianity was, from its earliest moments of self-consciousness, concerned with the salvation of the individual, as a creature of inherent value, beloved by God as if there were nothing else; this without regard for differences of wealth or social status. And once Paul emerged victorious in his contest with the more inward looking Jerusalem-based followers of Jesus, the Christian message became a mission to all humankind.

The foundational ideas that pursuit of his or her salvation is the destiny of each individual and that each individual is of equal value in that regard, derive, not from any classical Greek or Roman model, or indeed from any other branch of Western philosophy (save, as I have said, for the school of Jewish thought associated with Hillel). They are a peculiarly Christian message.

Over two thousand years, Christians regularly went to war with each other over what fidelity to the Christian message required of them. The writings of St Augustine of Hippo were the source of much of what was inspiring in the Christian message. They were also the source of much of the contention. It was no coincidence that Martin Luther was an Augustinian priest.

Apart from Paul, Augustine was the most important of the early Christian thinkers. His great self-revelatory work, The Confessions, became for the next fifteen hundred years, the most influential book in Christendom apart from the Bible itself. In it Augustine eloquently affirmed the central importance of the personal relationship between God and the individual. And when Augustine spoke of his Church as “Catholic” he was reaffirming Paul’s view of the universality of the Christian mission.

Yet, for St Augustine, we humans are so deeply flawed by the tendency to evil associated with original sin that we cannot hope to find our way to salvation outside the teachings of the Church. While the pursuit of salvation centred on an intensely personal relationship between each human soul and God, imperfect humans needed the help of Christ’s church to establish and maintain the connection. Augustine’s view was that, as a matter of love, an erring soul should be compelled, by force if necessary, to adhere to the Church’s teachings. Once Christianity allied itself with the Roman Imperial State and its successors in Europe, the tension between these aspects of Augustine’s thought became, for a long time after the decline of Roman rule in the West, a matter of life and death for Christians; and, unfortunately as well, for those with whom Christians came into contact.

Liberty

Augustine, in De Civitate Dei, Book XIX, said:

“[B]y nature, as God first created us, no one is the slave either of man or of sin.”

In the history of ideas, and in the fullness of time, the noblest contribution of Christianity to the history of the world, was its part in the abolition of slavery and the slave trade.

Of course, liberty was important to the ancient Greeks and Romans. In the republican Rome of Cicero, the idea of liberty was valued so highly that the preservation of liberty could be invoked as a complete justification of the assassination of the Republic’s leading citizen. But this was a special kind of liberty; it was not a notion of freedom from subordination to others. Nor was it a universal entitlement; it had nothing at all to do with ordinary people. Rather, it was a matter of social status within the community that allowed the superior man to achieve honour and reputation by participating in the government of that community. And, I say “man” advisedly.

In the brilliant societies of classical Greece and Republican Rome, almost no one was simply free. All but the aristocratic elite were subject to a tangle of personal constraints that were fixed by one’s social status which was almost invariably a function of wealth. Most importantly, classical Greece and Rome were slave societies. Classical Greece and Rome could not have functioned without the enslavement of a large segment of the population. This most brutal form of subordination of the weak by the strong was essential to the glory that was Greece and the grandeur that was Rome.

Slavery had been part of the human condition from before the time that humans began to keep historical records. The Greeks and Romans regarded slavery as the natural state of affairs; their philosophers did not suggest otherwise. For Aristotle, it was obvious that enslaved people were born, to be slaves. Slavery as an institution reached an apogee of sorts under Imperial Rome. People enslaved by the Romans were put to work at the oars of their ships, and in their mines, and on their huge farms, to maintain Roman wealth and power. These enslaved people were worked to death in enormous numbers. People kept as domestic slaves by the Romans were regarded as chattels who were routinely subjected to the sexual demands of their owners. Within classical Roman culture, the rape of enslaved people by Roman masters was actually celebrated, as we know from the frescoes which cheerfully adorned the villas of the Roman aristocracy.

As St Augustine explained in De Civitate Dei[3], God, in creating man with dominion over nature “did not intend that His rational creature, who was made in His image, have dominion over anything but the irrational creation – not man over man …”

Central to Augustine’s thought were the ideas that God loves each and every one of us as if there were no one else; and the idea that each of us shares the tendency to evil associated with the idea of original sin. When Abraham Lincoln famously declared in the course of the Peoria debate with Stephen Douglas in 1854, that “no man is good enough to rule over another man without that other’s consent,” that insight resonated powerfully with his audience because they shared the belief that every individual has his or her personal moral destiny, and, that humans are too imperfect to presume to take responsibility for the moral destiny of another.

The great liberating idea at the root of the Christian message was:

“You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbour as yourself”. Luke 10:25-27

In the New Testament, as in the Old, slavery is referred to as an entirely unremarkable institution. For most of the long centuries after Augustine, Christians continually proved themselves to be no less as enthusiastic in the enslavement of their fellow humans than anyone else, especially when it came to the conquest and settlement of what they were pleased to call the “New World”. It took a long time for the message that no Christian could, in conscience, allow the enslavement of another individual equally beloved by God to be achieve sufficient resonance to become the basis for a political program of abolition. But when it did, it was not the classical thinkers like Aristotle or Cicero, or natural law theorists, or “philosophes” of the Enlightenment whose ideas marshalled the forces that ended the slave trade and slavery in Western Europe and the United States. It was the recognition by the mass of politically articulate Christians that to hold another human being in bondage was simply inconsistent with the Christian obligation to do unto others as we would have them do unto us. As a matter of historical fact, it was the Christian message, championed by remarkable people like William Wilberforce, that led to the political agitation which led to the abolition of the slave trade after the Napoleonic Wars, of slavery in Europe. The cause of Abolition in the United States was a Christian endeavour nonetheless because the people on the other side were also Christian.

The abolition of slavery was not a manifestation of some coherent and comprehensive project of universal human rights to be enforced by the civil power. Christ’s Kingdom was emphatically not of this world. The inspiration was that to hold another human in bondage was, when one thought about it, evidently and emphatically inconsistent with loving one’s neighbour. And one’s neighbour is, as the parable of the Good Samaritan shows, any other person who comes within one’s power to help or harm.

In the history of ideas, and in the fullness of time, the noblest contribution of Christianity to the history of the world, was its part in the abolition of slavery and the slave trade.

It might fairly be said that Christians took a long time thinking about this. But the time did come when enough of them felt duty-bound to do something about it; and when they did, the influence of Augustine’s thought was apparent. By 1776, Thomas Paine had a wide, receptive, and almost entirely Christian audience for his “plain truth” that “all men being originally equals”, and that being so, it was simply absurd to suggest that God had granted to any person, or that person’s heirs, the right to rule over others, whether as slaves or subjects.[4] Montesquieu, to whom the American Founders looked for guidance, observed, in a famous piece of sarcasm, that “enslaved Africans could not possibly be human beings because if they were, it would follow that we ourselves are not Christians.”[5]

Thomas Jefferson, Benjamin Franklin and the other authors of the Declaration of Independence proclaimed that it was self-evident that all men had been created equal and enjoyed, by virtue solely of being so created, an inalienable right to life, liberty, and the pursuit of happiness. Note here, that the trio of inalienable rights was not John Locke’s “life, liberty and property: the “pursuit of happiness” was apt to comprehend the moral destiny of the individual’s pursuit of her or his moral destiny.

The Declaration of Independence asserted that these truths were “self-evident.” But that was simply not so: “these truths” would have been regarded as arrant nonsense by Aristotle and Plato and Cicero and Caesar and Constantine, by the barons who forced King John to sign Magna Carta, and, frankly, by the vast majority of the white populations of the southern colonies in North America.

One might pause here to observe that there is at least a serious question as to the historical accuracy of the assertion by those who propounded the US Constitution that they were truly united as “We the People”. There were deep differences between the hardy self-reliant Puritans of the New England colonies and the slave-owning aristocracies of the South. In this regard, before the Convention which proposed the Constitution for adoption by the American people, George Washington had written: “We are either a United People or we are not. If the former, let us, in all matters of general concern, act as a nation … If we are not, let us no longer act a farce by pretending to it.” His more clear-eyed fellow Virginian, James Madison, saw things differently. Madison saw the division between the colonies by reason of “their having or not having slaves” as a lethal threat to the unity of the new nation.[6] Time would prove that Madison had the right of it.

I would suggest that the confident assertion in the Declaration of Independence that “these truths” were self-evident, i.e. as a matter of natural reason, was calculated deliberately to mask the essentially Christian origin of the propositions it espoused. In Thomas Jefferson’s original draft of the Declaration of Independence, he had written: “We hold these truths to be sacred and undeniable …” When Jefferson showed his draft to Benjamin Franklin and John Adams, they suggested the crucial alteration from “sacred and undeniable” to “self-evident”. This self-conscious expedient to avoid any suggestion of an appeal to a religious foundation for these rights reflected a wariness of the debilitating divisions of Christian sectarianism.[7] In this spirit, Thomas Jefferson had earlier claimed:

“our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry.”[8]

Later, in 1797, John Adams, as President, would assert with a straight face that “the Government of the United States is not, in any sense, founded on the Christian religion.”[9]

While the subtle editorial change in the Declaration expressly to appeal to “natural reason” helped to sustain the appearance of religious neutrality on the part of the Founders, the source of the inspiration for the Declaration’s was the same for Jefferson, Franklin and Adams as it had been for John Locke whose followers they were. John Locke would write in his Second Treatise of Government, that all men were born into a state of “equality, wherein all the power and jurisdiction is reciprocal, no one having more than another”, each “equal to the greatest, and subject to no body”.[10] Locke too, may have appealed to natural law and reason, but it was the echoes of Augustine that resonated with his readers.

The truth about the Christian source of the Declaration’s inspiration might have been masked; but it could not be denied. In the 1858 debates between Abraham Lincoln and Stephen Douglas on the question whether negroes in the United States were as entitled to the same benefit of the rights enumerated in the Declaration of Independence as any white person, Lincoln referred to the fact that Thomas Jefferson was a slave owner but reminded his audience that Jefferson had said on the subject of slavery that “he trembled for his country when he remembered that God was just.”[11]

Separating Church and State: Public and Private

“Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.” Matthew 22, 22

The message of Matthew 22 is not only that the State has no legitimate claim upon the religious life of the individual but also that the public life of an individual should be kept separate from his private religious convictions. That is the message that John Kennedy invoked in 1960 when he famously explained to sceptical Protestant voters that he was not the nominee of the Catholic Church for President of the United States, but rather the nominee of the Democratic Party who happened to be a Catholic.

I suggest that the adoption by the United States in 1791 of the First Amendment’s prohibition of governmental preference for one form of religious observance over another as a condition of participation in the governance of the Republic was in no way a repudiation of Christianity as the religion of the vast majority of Americans; rather it was an affirmation of basic Christian values reflected in Matthew 22. The same may be said of S116 of our Constitution which relevantly followed the First Amendment in this respect.

In the State religions of classical Greece and Rome, the purpose of religious observance was a matter of public concern, to placate the gods to keep the city safe and prosperous. The same had been true of the more ancient cities of the Near East since the birth of civilisation. The primary concern of Christianity on the other hand was the salvation of the individual independently of the life of the city or the Empire. St Augustine famously asked rhetorically: “What does it matter to a dying man under what form of government he lives so long as it does not compel him to sin or to give him scandal.” Of course, experience would later show that, if the government demands obedience by a dying man to a particular view of religion on pain of death at the hands of the government, the answer to Augustine’s rhetorical question is that it matters a lot.

In the closely associated lives of the populations of the cities of classical Greece and Rome, everyone knew everyone else’s business. And as the proper worship of the gods was thought to be essential to the public welfare, there was little room for the notion that there could be things that belong to the gods that were not also of vital concern to the community and the responsible authorities. It was in this very context that the charge of blasphemy was brought against Socrates. It was also this mindset that prompted the testing of Jesus by the Pharisees tested Jesus which elicited the radical proposition in Matthew 22.

Socrates did not seek to defend himself against the charge of despising the gods by asserting his right as an individual to his own opinion about the gods and what they required of him. Such an assertion would have made no sense to him, or to his fellow citizens, or to the citizens of classical Rome. They were all dependent socially and indeed psychologically upon the communal life of their city. Plato tells us in the Apology that Socrates refused the opportunity to escape into exile because, as a child of his city’s laws as he described himself, he could not imagine the possibility of a worthwhile life outside them. And equally for the Pharisees who tested Jesus, the notion of a moral choice by an individual independent of the approval of their community made no sense.

The political philosophy that Plato developed in his reaction to what he saw as rule by the mob he despised did not include any notion of a private life of one’s own. His philosophy was one of totalitarian aristocracy; rule by grim guardians who would decide comprehensively what is best for the rest of us, whether we liked it or not, in every aspect of our lives. In Plato’s cheerless republic, there was no place for poets.

The limits to the legitimate authority of the State over matters of private belief were illustrated by the author we know as St Luke in Acts 18: 12-16. While St Paul was living and teaching in Corinth:

“When Gallio was proconsul of Achaia, the Jews with one accord rose up against Paul and brought him to the judgment seat, saying,

‘This fellow persuades men to worship God contrary to the law.’

And when Paul was about to open his mouth, Gallio said to the Jews,

‘If it were a matter of wrongdoing or wicked crimes, O Jews, there would be reason why I should bear with you. But if it is a question of words and names and your own law, look to it yourselves; for I do not want to be a judge of such matters.’

And he drove them from the judgment seat.“

In the bilious anti-Semitism of the inveterately pro-Roman author of Luke we have one of the earliest statements of the insight which, eighteen centuries later, would come to prevail as an axiom of liberal democracy. That is, that the private religious beliefs of citizens are of no legitimate interest to the State.

While the attitude on the part of the Roman Imperial state expressed by Gallio was no doubt welcomed at the time by Christians as members of what was then a small and often persecuted sect, it would prove to be otherwise after Christianity was established as the State religion of the Empire. Scant attention was paid to Matthew 22 while the power of the Church was ascendant in the world as an institution enjoying State sponsorship. The temptation to deploy the power of the State to crush the perceived enemies of the true faith would prove irresistible.

In the 4th Century AD, Constantine took the Church into alliance with the State to bolster the legitimacy of imperial rule; and in 381AD the Emperor Theodosius made Christianity the official religion of the Roman Empire. These world-changing acts of political expediency meant that the idea that the private or inner life of the individual was a realm separate from the public life of the governed would be muddled or ignored for more than a millennium. Countless lives would be lost in civil strife over religious beliefs. But the force of the idea that there was a separation between the public and the private that required that religious belief should not be coerced by the State never disappeared entirely from the Christian conscience.

In the late 8th Century, the English monk, Alcuin of York, Charlemagne’s chancellor, objected to his master’s attempt to force the conversion of the Saxon tribes to Christianity by fire and sword. Alcuin said: “Faith arises from will not from compulsion.”[12] He was speaking of the individual will of each convert who had to be allowed to make up his or her own mind. Alcuin went on to say:

“Let peoples newly brought to Christ be nourished in a mild manner, as infants are given milk – for instruct them brutally, and the risk then, their minds being weak, is that they will vomit everything up.”[13]

Marsilius of Padua, writing in the 14th Century, observed:

“That no one is commanded in evangelical scripture to be compelled to observe the commands of divine law by temporal penalty or punishment.”[14]

The tensions generated by the claim of the individual to pursue her or his own salvation and the institutional claim of the Church that there is no salvation outside its discipline were both creative and destructive. The alliance between the Church as an institution and the nascent European States that emerged from the remains of the Roman Empire helped to generate and direct the energies that produced the glories of medieval art and architecture. In medieval Europe, armies of people in religious orders bound by vows of poverty, chastity and obedience cleared forests, raised flocks, tended vines, and traded in wool and wine and books. They built hospitals to care for the sick and the needy. They also educated Europe’s children, staffing its schools and its glorious universities. Thus, they made education available beyond the ranks of the aristocracy and thereby doomed aristocracy as the dominant social class. They were the indispensable instrument in the recivilising of Europe, and making it prosperous. They exemplified much of what was best in humanity.

On the other hand, and tragically, the horrors of the Inquisition and of the wars of religion were also provoked and justified by a zeal that was itself peculiarly Christian. The Inquisition holds a particular fascination for the modern mind. To us, it is obvious that to burn a person who happens to disagree with you on a matter of religious belief is not to uphold a principle of good government; it is simply to burn a person.

The horrors of the Inquisition were driven by the willingness of the Dominicans who made up its staff to act upon the mandate St Augustine drew from words used in the parable of the banquet recorded in Luke 14.15-24, “compel them to come in so that my house may be filled”. On this view, if one loves one’s neighbour, one does not allow him or her to go freely on his or her own way in error, because that way lies eternal perdition. And so love requires that the erring soul be brought back, by force if necessary, to the true path within the Church’s teaching. And, unfortunately for large numbers of people in southern Europe during the high Middle Ages, the Dominicans loved them very much. The Inquisition reminds us that atrocities that we might ordinarily expect to be committed by deranged and blood-thirsty tyrants can also be committed by earnest and well-meaning bureaucracies.

In Europe, after the Reformation, the claims of religion were still ruthlessly enforced by the State, and so remained a source of misery for Europe’s people. Thomas Hobbes, the most sober thinker in England at the time of the First Civil War, identified the disruption and cruelty of that war as having been caused by “nothing other than the quarrelling about theological issues.”[15]

The beauty of the Christian insistence upon the separation of Church and State was not grasped by the politically articulate in Europe until the catharsis of the Thirty Years War in the 17th Century and the exhaustion of sectarian zeal that followed the bloodshed. In the 18th Century, the seed in Matthew 22 fell on fertile ground by then well manured with the blood of Christians. At that time, Frederick the Great of Prussia spoke for a broad Christian consensus in Europe when he said that “everyone must be allowed to go to heaven in his own way”[16].

Once this is accepted it is easy to speak of the individual’s pursuit of salvation as the pursuit of happiness. While this understanding of the Christian message in Matthew 22 may have been a long time coming, the necessity for the separation of Church and State was embraced as an essential feature of our constitutional law in the First Amendment of the US Constitution and in s 116 of our Constitution.[17]

Importantly in this regard, John Locke, in A Letter Concerning Toleration published in 1689 proceeded from the postulate that the individual is the fundamental moral unit of society to reason that because individuals entered into social relations with others to ensure their physical security, the social contract between individuals in no way impinged on an individual’s freedom to worship according to his or her own lights. Locke said:

“The care of souls is not committed to the civil magistrate any more than to any other man … [because] his power consists only in outward force, but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.”[18]

In contrast to the classical view of the Greeks and Romans that the community was the basic moral unit, Locke’s focus on the “inward persuasion of the mind” of the individual believer resonated particularly with his Protestant readers because it was a central element of their common experience of their Christian faith.

Ironically, and as an example of the contingent nature of the flourishing of the Christian seed in Matthew 22, while the Americans were adopting the First Amendment, Revolutionary France was nationalising the Catholic Church, and embarking upon the Terror.

For Robespierre and the Jacobins, the Terror was the instrument of the virtuous wielded in the name of the General Will to ensure that the governed, who could not be trusted to know what was truly good for them, would be forced to be free.

Robespierre was, notwithstanding his Jesuit education, a disciple of the distinctly un-Christian Jean Jacques Rousseau, one of the most awful people ever to have told other people how to live their lives. Rousseau’s theory was that men are inherently good by nature and that human happiness would blossom if only the chains of corrupt social institutions could be removed. If men were set free of bad laws by the rule of the virtuous who alone truly grasped the General Will, then everyone would enjoy the rights with which they had been endowed by nature and which were now being proclaimed by the virtuous revolutionaries. Robespierre said:

“The Declaration of Rights is the Constitution of all peoples, all other laws being variable by nature, and subordinated to this one.”[19]

In this spirt of sunny optimism, the Revolution proceeded to eat its children.

Limited Government

If one takes seriously the notion that an individual may owe different and separate obligations to Caesar and to God, it must follow that the claims upon us of those who claim to speak for God or Caesar are to be limited to their proper spheres of authority. That necessarily raises questions as to the drawing of boundaries between what is owed to Caesar and what is owed to God. The drawing of these boundaries posed momentous challenges. Matthew 22 created a focus for contention but did not designate an arbiter to resolve the question. The experience of divinely appointed monarchs, whether in alliance with or opposition to church bureaucracies, proved to be disastrous disappointments.

As the issues created by the propositions in Matthew 22 were characteristically Christian, so ultimately, was the solution. Ultimately, the Christian communities of the West would repudiate both Constantine’s takeover of Christianity, and attempts at reverse takeover of the State by the Medieval Church in favour of a constitutionalism that would recognise the power of people of each community to exercise ultimate control of the limits upon government.

Limited Government, and Equal Dignity

“There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female; for you are all one in Christ Jesus.” Galatians 3:23

Aristotle in Politics III, Chapter 6 accepted that the authority of all the citizens is the ultimate check on the political power of the government of the State, but his view of citizenship was very narrow. In Politics III, Chapters 1, 3 and 7 he described a citizen as one who participated in civic government excluding women, boys, foreigners and slaves. But for Thomas Aquinas, those excluded from citizenship by Aristotle were indeed “citizens in a certain sense”.[20] And after Aquinas, Marsilius of Padua, writing in the early 14th Century, would declare: “That only the universal body of the citizens or its prevailing part is the human legislator …” and that “only the legislator or someone else by its authority can give a dispensation from human laws.”[21]

As a matter of historical fact, the practical success of this element of the Christian message was, of course, highly contingent on circumstances of time and place. One illustration of this point that would have appealed to Bruce McPherson involves a comparison between Magna Carta and the Declaration of Arbroath.

Despite the involvement of Stephen Langton, the Archbishop of Canterbury, in the drafting of Magna Carta there was little evidence of Christian inspiration in the instrument itself. It was, in large part, calculated to preserve the feudal privileges of a tiny fraction of the population, the Norman barons, against encroachment by the Angevin kings.

If we take, for example, the famous promise in cl 39 that “no free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land“, we can see that this promise offered no comfort to the unfree people, i.e. the villeins, who made up at least half, and perhaps even four‑fifths, of the population[22]. The Norman barons remained free to treat their villeins, who were Englishmen, as they pleased.

In cl 40, the King famously promised: “To no one will we sell, to no one will we deny or delay, right or justice.” This did not help the villeins, or indeed even free men, in the courts of the barons: it afforded no protection against the arbitrary power of the barons who held their own courts and administered their own justice in them.

In any event, Magna Carta had little real effect in the development of constitutionalism. In an address to the Friends of the British Library, Jonathon Sumption observed that, before Sir Edward Coke in the 17th Century, English ideas of limited government owed more to Aristotle and Thomas Aquinas than to Magna Carta. It was Coke who developed a myth of Magna Carta as an original expression of the special English genius for constitutional government. Lord Sumption made the telling point that in Shakespeare’s play “King John”, there is not even a mention of Magna Carta or of the incident at Runnymede in June 1215.

An instrument which was much more significant as a marker of the development of the constitutionalism in that it explicitly asserted the voice of the people as the ultimate limit on government was the Scottish declaration of independence, formally known as the Declaration of Arbroath, of 1320. The Declaration was a letter to the Pope urging his Holiness to lift the interdict on Scotland which Edward II of England had procured from Rome after the great Scots victory under Robert the Bruce at Bannockburn. The interdict was intended to restore Scotland to the dominion of the English King. Scottish churchmen, in particular Bernard, the Abbott of Arbroath wrote the Declaration in terms that were explicitly Christian in their inspiration. The text expressly adopted and adapted the passage from Galatians: “There is neither weighing nor distinction of Jew and Greek, Scotsman or Englishman.”

The Declaration said of King Robert that:

“Him, too, divine providence, his right of succession according to our laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our Prince and King …

By him, come what may, we mean to stand.“

The Declaration went on:

“Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom – for that alone, which no honest man gives up but with life itself.“

This was an explicit statement that the authority of the King came, not as God’s anointed, but from the people he ruled, and what the people had given, they could take back. The Declaration thus ” proclaimed a doctrine that the king ruled by consent of the ruled.”[23]

And it did so in terms that enable one to understand why Bruce McPherson was so proud of his Scottish heritage; and why the rest of us can be proud to be human beings.

John Locke would complete his great work of political philosophy Two Treatises of Government, during the period of extreme political tension that resulted in the expulsion of James II in the Glorious Revolution of 1688. The dangers were such that Locke kept his great work secret for a long time, referring to it when communicating to his friends as De Morbo Gallico that is “Concerning the French Disease”[24]. In this regard, he was not just making a Francophobic allusion to syphilis; he was referring to government by absolute monarchy personified by Louis XIV of France. In the Two Treatises of Government, Locke, like Bernard of Arbroath, proceeded from the Christian premise that people are all born free and equal in dignity to the conclusion that the people have the right to choose their governors, and indeed to depose an anointed monarch who had forfeited their trust and thus their allegiance.

The Constitutions of Australia and the United States would embody these insights establishing limited governments in which ultimate sovereignty reposes in the people[25].

The Separation of Powers

In the thinking of Locke and Montesquieu the constitutional notion of the separation of powers emerged in order to ensure observance of the limits placed upon legitimate government. The conception in which each branch of government must be checked and balanced by the other branches of government in order to maintain constitutional limits on the power of the State recalls Augustine’s pessimistic view of human nature. Montesquieu observed that the objective of the separation of powers was not efficiency – autocracies are often very efficient – but the protection of the liberty of the governed by preventing the concentration of governmental power to restrict individual freedom and the retrospective imposition of greater control.[26] John Locke explained in his Two Treatises of Government[27]:

“for the same Persons who have the power of Making Laws, to have also in their hands the power to execute them … they may exempt themselves from Obedience to the Laws they have made, and suit the Law, both in its making and execution, to their own private advantage.”

This is the careful pessimism of Augustine in contrast to the optimism of Rousseau. More recently, Jeremy Waldron has said, if the processes of making, adjudicating upon and enforcing laws is in the same set of hands, those hands may “direct the burden of the laws they make away from themselves.”[28]

The conception in which each branch of government must be checked and balanced by the other branches of government in order to maintain constitutional limits on the power of the State recalls Augustine’s pessimistic view of human nature.

A major difference between the practical working out of similar arrangements in Australia and the United States relates to the role of judicial power in giving effect to limits on the powers of the State, and in particular in the case of the United States in the respect of the extensive guarantees of privacy, both express and implied, in the US Bill of Rights. With us, elected representatives of the people in their Parliaments take the leading role in the drawing of the line between Church and State, and between the public and the private. In the United States, the Supreme Court in fixing the content of the broad language of the Bill of Rights has come to exercise the role of a super-legislature. The exercise of this role by the Supreme Court has, in recent years, deeply unsettled the political balance outraging people on the both right and left of politics in turn.

In consequence of the unavoidably political nature of the decision-making of the US Supreme Court in interpreting the Bill of Rights, the appointment of federal judges has become a highly charged political issue in the United States. CNN’s exit polling of the 2016 US Presidential election disclosed that, for 56% of those who voted for the Republican candidate, Supreme Court appointments were the most important factor in their vote, with only 37% saying that this issue was not important to them[29]. The Republican candidate himself well understood the rage reflected in these figures, and he was astute to exploit it to the full. It was a major part of his political strategy. He told a rally in July 2016 that even if his conservative constituents didn’t like him they would have to vote for him anyway. “You know why?” he asked: “Supreme Court Judges”, he answered.[30] And in this respect at least, he did not disappoint his constituents.

Conclusion

To return to the lamented decline in the influence of Christian institutions and values, with which we began, if one looks beyond the numbers physically assembled in church each Sunday, it might be argued that the freer, more equal, and more compassionate society in which we live is a compelling manifestation of the enduring and ongoing success of the Christian message.

As to the waning influence of Christian institutions, it may be said that since the time of Constantine‘s takeover in the 4th Century, the record of Church bureaucracies of all denominations has sometimes been less than inspiring. For some it may even call to mind the observation that “the simplest way to explain the behaviour of any bureaucratic organisation is to assume that it is controlled by a cabal of its enemies”[31].

It might also be said that when engaged Christians speak of “Christian values”, there have always been differences between them as to what those values actually mean in practice. Franklin Roosevelt said of the social welfare program of the New Deal that it was “as old as Christian ethics, for basically its ethics are the same … It recognizes that man is his brother’s keeper, insists that the labourer is worthy of his hire, and demands that justice shall rule the might as well as the weak.”[32]. I suspect that many Republican voters in the United States at that time would have disagreed with FDR; and I have little doubt that the bulk of today’s Evangelical Christians who enthusiastically support the Republican candidate for President would regard FDR’s words as wicked heresy. For many other Christians it may seem a world-class irony that American Evangelicals might well re-elect as their President a proud and untroubled stranger to the most basic Christian notions of continence and compassion.

However…difficult it may be to draw the practical line between the things that are Caesar’s and the things that are God’s, between the public and the private, it is the recognition that there is a line that must be drawn, and respected that is the big point. That …is what distinguishes liberal democracies from totalitarian societies both of the left and right, from autocracies and from theocracies who claim to speak for God in the civic life of their communities.

However that may be, and however difficult it may be to draw the practical line between the things that are Caesar’s and the things that are God’s, between the public and the private, it is the recognition that there is a line that must be drawn, and respected that is the big point. That this line must be drawn, by the people, and respected, by the State is what distinguishes liberal democracies from totalitarian societies both of the left and right, from autocracies and from theocracies who claim to speak for God in the civic life of their communities. Of that we should be constantly mindful.

The tensions between the individual right to self-realisation and the claims of the community are profound. They necessarily fall to be resolved by each generation. In liberal democracies like the USA and Australia, that resolution occurs within a political framework shaped by the evolution of a distinctly Christian understanding of the relationship of the individual with the State and the equal dignity of each individual in his or her search for happiness. Liberal democracies may struggle in their response to the conflicting demands of their people, and they may enjoy differing degrees of success. But the inspiration abides.

President of the Queensland Christian Lawyers’ Society, David Cormack, wrote in respect of the above lecture:

The Queensland Christian Lawyers’ Society and the Australian Christian Legal Society had the privilege and honour of hosting the inaugural Honourable Bruce McPherson CBE memorial lecture on 21 March 2024 in Banco Court, Brisbane.

President Debra Mullins AO, Chaired. The Honourable Geoffrey Davies AO delivered a statement on behalf of Mrs McPherson. Mrs McPherson recounted that Bruce was born in 1936 in a small mission hospital in Melmoth, South Africa. Later, he attended Cambridge University, where he met his first wife, an Australian, and Bruce migrated to Australia to marry her. At that time, South Africa was under apartheid, and it was not an environment in which Bruce wanted to raise his family. Bruce lectured at the University of Queensland and completed his PhD in “The Law of Company Liquidation”, the basis of the seminal text first published in 1968. The honour board at the University of Queensland states that Bruce’s PhD was the first in Law.

Mrs McPherson recounted that it was widely thought that the thesis was worthy of an LLD, which Bruce ultimately received as an honorarium. Bruce left the University of Queensland and went to the Bar.

In practice, Bruce would decline to raise his fees despite solicitors begging him to do so, otherwise, (they believed) their clients would think he was no good. Bruce was a prime example of “the Protestant work ethic” and would not be dissuaded about his fees.

Mrs McPherson recalled Bruce lecturing her in the winding-up part of company law, and she went on to instruct him as an articled clerk in Canfield Pastoral Company v Dixon. With fondness, Mrs McPherson retold that love blossomed, and they were eventually married in 1975 at the Ann St Presbyterian Church, where she still worships. That same year, Bruce took silk and, in 1982, was appointed to the Supreme Court.

Mrs McPherson stated that Bruce was never happier than when immersed in the law and took great pride in writing his judgments, which he did in longhand. Bruce steadfastly refused to use a computer. Mrs McPherson recounted that Bruce was a heavy smoker, and when the Supreme Court issued a prohibition on smoking in the building, Bruce, as Senior Puisne Judge, made a rule that he could smoke in his chambers. However, smoking since the age of eighteen caught up, and Bruce was ordered by his doctors to give up and died peacefully in his sleep in 2013.

In closing, Mrs McPherson noted that Bruce’s interests were varied and included history, literature, reading, classical music (except Wagner), light opera, archaeology, astronomy, ornithology, volcanology and gardening.

Mrs McPherson expressed gratitude to those attending and said Bruce would be smiling.

David Cormack, President of the Christian Lawyers’ Society, welcomed and thanked attendees, including the Chief Justice and the Honourable Susan Kiefel AC KC, for their attendance.

The lecture’s genesis followed the Queensland Christian Lawyers’ Society’s 20th anniversary in 2020 and a review of its history, in which it was recalled that its inaugural President was the Honourable Bruce McPherson CBE, a position he held until he retired from the Queensland bench in 2006.

Mr Cormack stated his personal interest was sparked when he learned McPherson was from South Africa, the same country of origin as Mr Cormack.

Mr Cormack stated that McPherson’s legacy and contribution to the law are immense, as demonstrated by the persons in attendance at the lecture. Furthermore, it was notable that a festschrift on his retirement in 2006, entitled “Justice According to Law,” was published with a foreword by the Honourable AM Gleeson. It was the first for a Queensland judge.

Mr Cormack reflected that the speaker, the Honourable Patrick Keane AC KC, wrote in Hearsay on McPherson’s passing that in twenty years’ time, barristers will still cite McPherson’s judgments for their lucid and authoritative statements of principle, which was indeed well underway.

Mr Cormack noted that, in addition to judicial positions, McPherson served from 1969 as a member and chairman of Queensland’s Law Reform Commission until 1991. In 1988, the Queen’s Birthday Honours list awarded McPherson the Commander of the British Empire (CBE) for his service to law reform.

Mr Cormack remarked that McPherson was proud of his Scottish ancestry and by dint of being a Presbyterian. McPherson was actively involved in the Presbyterian Church and was its chairman of trustees for the Peirson Memorial Home for Children since 1988. A trust which continues its work today.

Mr Cormack remarked that McPherson’s donated papers to the Supreme Court Library include a speech to the Elders and Managers of the Presbyterian Church at Wavell in 1990. The topic was the “Church and State in Australia” and specifically about “Render to Caesar the things that are Caesar’s and to God the things that are God’s”. A topic as relevant today as it was when it was said 2000 years ago.

Mr Cormack reflected that much more could and ought to be said about McPherson’s humanity, numerous published works, role as Chairman of the Supreme Court Library collection subcommittee, member and international vice-president of the Selden Society, Chairman of the Judicial Conference of Australia, Acting New South Court of Appeal judge, member and one of the deputy presidents of the Administrative Appeals Tribunal, judge of the Court of Appeal of the Solomons Island and judge of the Fiji Court of Appeal, but not tonight.

Mr Cormack concluded that the Queensland Christian Lawyers’ Society is grateful and humbled that McPherson was their president.

The Honourable Patrick Keane AC KC delivered the “Christian Inspiration and Constitutional Insights” lecture. It reflected McPherson’s legacy and perspective and his Honour stated:

“For McPherson, the cardinal judicial virtue was not a passionate commitment to doing what one finds personally agreeable, but fidelity to the rule of law…. He was firmly of the view that justice is not a matter of judicial benevolence or of second guessing the legislative efforts of the elected representatives of the people. Bruce did not approve of the jurisprudence of the warm inner glow… But the wisdom of McPherson’s modest view of the proper scope of judicial power is apparent in the convulsions wrought in the United States by popular outrage on all sides of politics, against decisions on political questions by a judiciary that is seen to act as a super-legislature.”

In this vein, the paper addressed “the extent to which the constitutional arrangements of the liberal democracies in Australia and the United States actually embody an understanding of the relationship between the private individual and the community and its public institutions that is distinctly Christian in its inspiration”.

* Formerly a Justice of the High Court of Australia. Non Permanent Justice of the Court of Final Appeal of Hong Kong.

[1] A.T. Denning, “The Influence of Religion” in The Changing Law (London, Steven & Sons Ltd, 1953) 99 at 107.

[2] (London, Stevens & Sons Ltd, 1955) at 1-3.

[3] In XIX.

[4] Thomas Paine, Common Sense (Philadelphia. R. Bell, 1776) at 12.

[5] Montesquieu, quoted by Paul Strathern in Ten Cities That Led the World: From Ancient Metropolis to Modern Megacity, Hodder & Stoughton, 2023 at 76.

[6] Max Farrand (ed) The Records of the Federal Convention of 1787 (1937) Vol 1, 486.

[7] Joseph J Ellis, The Cause: The American Revolution and Its Discontents, 1773-1783 Liveright Publishing Corporation, 2021, at 86-87. See also Jill Lepore, These Truths: A History of the United States WW Norton & Company, 2018, at 98-99.

[8] Jill Lepore, These Truths: A History of the United States, WW Norton & Coy, 2018 at 132-133.

[9] Jill Lepore, These Truths: A History of the United States WW Norton & Company, 2018, at 200-201.

[10] John Locke, Second Treatise of Government and A Letter Concerning Toleration,ed Mark Goldie; Oxford University Press, 2016 at 4, 63.

[11] Jill Lepore, These Truths: A History of the United States WW Norton & Company, 2018, at 278.

[12] Alcuin Letters 113.

[13] Alcuin Letters 113.

[14] Marsilius of Padua, The Defender of the Peace ed Annabel Brett Cambridge Texts in the History of Political Thought, Cambridge University Press, 2005 at p 548.

[15] J. Healey, The Blazing World: A New History of Revolutionary England, Bloomsbury Publishing, 2023 at 258.

[16] Robert Zaretsky, Boswell’s Enlightenment, Cambridge MA, and London: (Harvard University Press 2015) 132, 145.

[17] Section 116 of the Constitution provides: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

[18] John Locke, A Letter Concerning Toleration (New York: Macmillan Publishing Company, London: Collier Macmillan Publishers, 1950) 18.

[19] Tom Holland, Dominion: The Making of the Western Mind, Little, Brown, 2019, p386.

[20] Thomas Acquinas, In octo libros politicorum Aristotle’s exposito, ed, R M Spiazzi (Turin, Mariotti, 1966) p.120 (in 225).

[21] Marsilius of Padua, The Defender of the Peace,ed Annabel Brett Cambridge Texts in the History of Political Thought. Cambridge University Press, 2005 at pp 548 and 548.

[22] Jenks, “The Myth of Magna Carta”, (1904) 4 Independent Review 260 at 268.

[23] Ibid at 188.

[24] Jonathan Hesley, The Blazing World: A New History of Revolutionary England, Bloomsbury Publishing, 2023 at 394.

[25] Constitution, Ss7, 24, 94 and 125.

[26] Montesquieu, The Spirit of the Laws, Thomas Nugent (trans) (1873), Bk II, Ch 6 at 171-174.

[27] Locke, Two Treatises of Government, Peter Laslett (ed), 1988 at 364.

[28] Waldron, “Separation of Powers in Thought and Practice” (2013) 54 Boston College Law Review, 433 at 446.

[29] https://edition.cnn.com/election/2016/results/exit-polls.

[30] The Economist September 15, 2018 at 20.

[31] Robert Conquest’s third law of politics, quoted in Mick Herron, Slough House, Baskerville, 2022.

[32] Jill Lepore, These Truths: A History of the United States,WW Norton & Coy, 2018 at 430.

It occurs to me that the topic of my address might be a little misleading. As someone who has been a judge for only eight years, and was an advocate for twenty-seven years before that, my view from the bench is still very much framed or shaped by my experience as an advocate.

In the thirty-five year period that I have been involved in the practice of the law, large changes have taken place to the dynamics that drive the conduct of advocacy in our Courts.

Culturally and structurally, the example of the United States has affected the practices of the legal profession, and of the Courts, just as they have influenced our economic and social life more generally.

But while there has been great change, we have succeeded in retaining a central feature of our system of administration of justice which distinguishes us from the United States. That feature is the notion that lawyers are officers of the Court and that as such, their first duty is to the Court and, through the Court, to the administration of justice.

In the highly successful television program “Rake”, the protagonist Cleaver Green of Counsel, speaking of the work of a barrister, says: “It’s all bullshit, mate; it’s just smoke and mirrors.”

He sounds entirely like the cynical lawyers of American legal TV dramas. And I suppose we all know some hard-bitten cynics who do take this view of the administration of justice. But happily, I do not think that it is a view which characterises the Australian legal profession or the Bench.

Only someone who doesn’t actually practise law could think that Cleaver Green’s attitude is representative of the legal profession in Australia.

Producers of popular television programs and journalists, who wear their world weary cynicism as a badge of honour, are, of course, free to say what they like. In doing so, they are unconstrained by the discipline imposed uniquely on lawyers by the pressure of argument in open court where error and hyperbole are quickly corrected. Actually doing the business is important to an understanding of what it reveals about those who are doing the business.

There is a story about Talleyrand, the great survivor of the French Revolution, which illustrates my point.

One of the five-man Directory which ruled post-revolutionary France before the coup which brought Napoleon to power, was Louis-Marie de la ReveilliÃ¨re-LÃ©paux. He was an intellectual who had founded a new religion which he called “theophilanthropy”. He gave a public lecture on his new religion which was attended by Talleyrand. Afterwards, Talleyrand said to him:

“… I have just one observation to make to you. Jesus Christ, in order to found his religion, was crucified and rose from the dead. You should try to do the same.”

And so I am confident that you, as people who are actually trying to do the business, do think about what you do as something in which duty is more important than self-promotion and that you are not tempted to think that a failure to do your duty by the system does not really matter because the system “is all smoke and mirrors”. That, after all, is why you are at this conference.

Instead of the cynicism of Cleaver Green, I would commend to you the words of Sir Maurice Byers, who was one of the most successful advocates ever to appear in the High Court. He said of the role of the advocate:1

“When we appear before the courts, we are engaged in the administration of justice and thus owe to the courts in this ministerial undertaking a duty which prevails over our duty to our client. The practice of the law is thus radically and essentially different from the practice of other professions or callings. We participate and they do not in the administration of justice to the same extent as the judge, though our function differs.”

Civility

While I was at the Bar, I acted on a number of occasions for and against litigants from the USA. On most occasions, the American client was represented by an in-house lawyer. Invariably, at the end of each case, the in-house lawyer for the client would comment that they were very impressed with the civility which prevailed in our courts, not because it was quaint and olde-worlde, but because it meant that the solution of the legal problem at hand was plainly the sole focus of the proceeding, and the civility of the debate meant that arriving at the best solution was more likely.

The civility which prevails in our courts is an enduring outward sign of the co-operative view of the administration of justice in which the advocates for each side act as officers of the Court, duty-bound to assist it. This is a radically different model from a system in which advocates may engage in any conduct, it seems, short of an actual crime, to advance the client’s interests.

Sir Nigel Bowen, at the foundation of the Federal Court in the mid-1970s, stated that his ambition for the Court was that it should be a Court of “excellence, innovation and courtesy”.

It must have struck many lay people at the time as odd that a judge would think to express the hope that a court should be courteous: surely it should go without saying that a court should be courteous.

While that might be so now, it was not necessarily so when Sir Nigel was speaking.

I can certainly vouch from my own experience as a fledgling lawyer in the 1970s that the Courts were sometimes unpleasant places to appear for advocates.

In those days, of course, they were universally presided over by men. These men were usually very angry — about something, which usually eluded everyone else. Those courtsÂ were occasionally so unpleasant as to put one in mind of the Royal Navy of Nelson’s era, described by Winston Churchill as a place of “Rum, sodomy and the lash!”

That, happily, has certainly changed. The increasing numbers in which women have taken their place on the bench has obviously been an important influence for the good.

But even in those somewhat more fraught times, judges were conscious that the transparency and rationality of judicial decision-making processes were values of the highest importance. That judicial decisions are made by a disinterested person, on the basis of evidence and arguments fully and fairly ventilated in open court, is essential to the maintenance of public confidence.

And it is now almost universally acknowledged in the superior courts of the Commonwealth that civility on the part of the judges is good policy because the performance of the legal profession is unlikely to be at its best or most helpful if it is being hectored by the bench.

Judges know that skilled lawyers are the most important resource available to the courts in doing justice, and we need to help them to be heard, not to make their difficult and important job even harder.

The explosion of legislation and regulations has been another important change in the dynamics of the justice system over the last four decades. The predominance of legislation as the source of law means that statutory interpretation is more the focus of the judicial function now than the judicial development of the common law. One consequence of this development is that there is less scope for the emergence of judicial figures as dominant forces in legal development.

We are now less likely to see the emergence of a hero judge, such as an Atkin or a Denning or a Dixon. Even the most forceful judicial personalities are less likely to feel the need to demonstrate that they are the smartest person in the Courtroom and destined for a place in the history books with the great lawyers of past centuries.

At least, that is the case in Australia. I was surprised, recently, to see a newspaper report of a serving American judge making a speaking tour to promote her autobiography. In the course of this triumphal progress, her Honour expressed the modest hope that her judicial opinions would be regarded in future decades as among the best produced by any judge of her Court.

By and large, I think that it is fair to say that in Australia our judges’ feet have generally been kept firmly on the ground by the constraints of our egalitarian democracy and an ethos of judicial modesty.

As for the history books, the best any of our judges can hope for, in terms of what people might say about us in three or four decades into the future is: “Isn’t it remarkable that he’s still sexually active.”

This morning I will mention a number of aspects of advocacy which bear upon the maintenance of the relationship of mutual confidence between Bench and Bar which is central to our mechanism for the doing of justice. To the extent that there is a unifying theme to what I hope are helpful hints, it is the idea that we are all, judges and advocates, engaged in a mutually respectful cooperative enterprise which is not all “bullshit and smoke and mirrors”.

Trials

Thorough trial preparation has always been essential. It is even more so by reason of the technological revolution. The worst failure of which an advocate can be guilty is a lack of preparation.

From the point of view of the judge, the unprepared advocate is less than useless because of their potential to unwittingly mislead the court. That is especially so in trials where there is a large volume of documents. The greatest assistance an advocate can provide is to reduce and refine the evidence which the judge must digest to decide the case.

The abundance of documents to which critical human intelligence has not been applied before trial is one of the greatest problems for trial courts. The worst advocacy I have ever seen occurred in a long trial where the advocates opened the case by meandering through a bundle of documents — whether physically or electronically — with a view to seeing if there were any documents which the judge might think were interesting.

The process of discovery has become so burdensome that it has spawned a separate industry to help lawyers cope with it. The lawyer who can marshal the crucial documents is highly valued by the judges. The best advocate ensures that the force of the documents which most strongly support the client’s case is not hidden under bushels of dross.

The second worst thing I have seen in an advocate at a trial is a refusal by Counsel for the defendant or respondent of an invitation by the Court to open his side’s case immediately after, and in response to, the plaintiff’s opening. Such a refusal can only be explicable by poor preparation. No advocate worth his or her salt would pass up the opportunity to restore the balance which you must assume has been tilted, albeit provisionally, in favour of your opponent’s case.

Mediation

Can I return to mediation. The involvement of specialist advocates in mediation is a phenomenon of the last two and a half decades.

There are still advocates in practice who regard it as a badge of honour that they refuse to attend mediations. But the vast majority recognise that it is a great thing to help litigants resolve their disputes without the need for a trial. The clients get to keep their dignity and exercise their autonomy rather than have the solutions to life’s problems imposed on them by others. Just as importantly, they save time, money and distraction.

Once again, thorough preparation is essential if advice is to be clear, responsible and effective.

It may well be that some advocates, especially the younger ones, may feel that heavy involvement in mediation is dulling your forensic edge. If you do feel that your court craft needs some polishing because you aren’t getting to court as often as you would like, my advice would be to go and sit in on a criminal trial in the Supreme Court. And especially, if you are struggling with the discipline of being concise and relevant, go and watch some criminal appeals in the Court of Appeal. You will see masters of relevance in action.

Speaking parochially for a moment, it was my experience on the Court of Appeal that one of the glories of the Queensland Bar is the quality of the advocacy in criminal appeals.

Written Arguments

A great change in the dynamics of advocacy over the last three decades has been the shift towards written as opposed to oral argument, both at first instance and on appeals. When I commenced practice at the Bar in 1978, all appeals were argued entirely orally. It was only in 1979 that the Supreme Court formally advised the Bar that counsel might properly assume that the appeal judges had actually read the judgment under appeal.

The presentation of an entirely oral argument required a very special skill in identifying accurately, but concisely, the arguable errors in the decision below and then developing in a coherent way the arguments which were apt to make good the challenge to the judgment below.

For the advocate, trying to present an entirely oral argument could be a trying experience, even for experienced advocates, as they struggled to articulate their arguments coherently, and with precision.

Today, written outlines are essential to the ability of the court to cope with its workload. In this environment, an advocate who attempts to articulate an argument for the first time in oral submissions should expect an unpleasant reaction from the court. Coherence, which is obviously desirable, will be hard to achieve amidst all the shouting.

Many of us find it easier to follow and assess an argument on the written page than by listening to the spoken word. And, in any event, the process of question and answer which takes place at the oral hearing is much more focused by reason of the written outlines. Written outlines have seen an end to what I call the Jericho strategy of advocacy which was frequently used in the days of purely oral argument. This strategy involved counsel talking around and around the problem without committing to any particular proposition until a judge expressed enthusiasm for a particular sentence. Counsel would then exclaim how clever the judge was, that he had put the point much more clearly than he could ever do, and with that blast of the trumpet, the walls of judicial resistance tumbled and counsel triumphantly resumed his seat.

This strategy was employed by the more oleaginous advocates; but it was very successful. Happily it is no longer viable.

I will now make a few brief specific points about written arguments, both at first instance and on appeal.

Point 1

A good advocate will not regard the preparation of the written outlines of argument as a mere formality or a chore which has to be done, and which is of minor significance in comparison to the oral argument. Written submissions afford you a great opportunity to shape the judges’ view of the case. It is an opportunity to persuade: such opportunities are not to be wasted. The production of written argument means that a different form of preparation is necessary for the oral part of the argument. It requires that the advocate has mastered the factual material in the case, and the legal arguments involved, to such a degree that the advocate can respond concisely and precisely to questions from a Bench which has been “warmed up” by the written outlines.

In oral argument, against the background of written submissions, there is no room for the advocate to “build up speed” or to talk one’s way into the answer. But there is great scope for the counterpunch — which is the most effective form of argument — to go straight for the weak point in your opponent’s case as has been exposed in his or her written outlines.

The production of an effective written outline takes time: you must devote time to that work; you cannot hope to do it on the fly. You cannot hope to sit back in your chair and allow your eyes to roll back in your head and talk to your dictaphone.

Do not present the court with a written outline which has obviously been dictated and not revised with typos and gaps left for the solicitor to complete. The solicitor, of course, will not realise that he needs to complete the outline and will file it as you have sent it to him. In such a case, both the barrister and the solicitor should be ashamed of producing it. The lawyers should fairly expect to be ordered to pay the costs of a losing case which has been presented in this way.

At the practical level, you should expect to do at least two drafts and then leave the final draft for a day or two to let it settle in your head and on the page. This kind of process of iteration is necessary to make your argument read as simply and coherently as possible.

You may even find that you need to do more than two drafts to articulate your points as crisply as they can be expressed. Remember, it is a piece of English prose. The compelling but relaxed prose of F. Scott Fitzgerald was usually the product of 18 or 19 drafts.

One way to ensure that sufficient rigour is brought to the task is to have the outline looked at by a fresh mind which has not been contaminated by previous attachment to the case. The best advocates use their time with the lawyers assisting them to anticipate the curial interrogation process and to adjust the outline accordingly. This, of course, was the skill which made John Roberts, now Chief Justice of the US Supreme Court, famous as the most able appellate advocate of his generation.

You must resist the temptation to try to avoid moving into what Sir Anthony Mason called the “critical grey area” in the case where the difficulties abide.2 That is the area where the case will be decided. It is much better to recognize the difficulty in your case and say what you can about it when you are able to put your argument as well as it can be put, than to hope against hope that no-one else will notice.

The thing about the system is that the higher you go, the more different pairs of eyes look at the case and the less likely it is that no-one will notice the problem in your case. There is no nastier experience for an advocate than being chased around the court by several judges energized by the thrill of pursuing a problem which they think has not been identified.

Articulating your argument in writing is also a useful discipline. If you find it difficult to put your argument in writing, the most likely reason is that your side’s case is flawed. If you can’t articulate your case in two or three sentences, you will struggle to persuade others. And you should be advising your client that there is a problem.

If you have not drawn to your client’s attention a flaw in its case so as to afford the client the opportunity of resolving the case on the best available terms, your problems may not be limited to a day of less than the usual degree of job satisfaction.

Point 2

As to my second point, in cases where the issues depend on the operation of complicated legislative schemes, such as the WorkCover legislation or the Personal Injuries Proceeding Act 2002 (Qld), or taxation legislation of any kind, you should not assume that a precise elaboration of the legislative scheme for the benefit of the Court is unnecessary. You must set the context for the arguments you wish to agitate; you should not assume that the court does not need to be told of the context.

An allied point I would make here is that if the relevant statutory regime has inter-State analogues, you should not assume that the issue of present concern has not been addressed by the courts of that State.

You should make sure that you know whether or not your issue has been considered by another court. This may seem like such an elementary point that one should not have to mention it. Sadly, it is necessary to mention it.

Point 3

The efficacy of written submissions depends on each member of the court having read them before the oral argument begins. In the early days of the shift towards written submissions, barristers often formed the impression that some members of the court might not have actually read, much less comprehended, the written submissions.

Whether or not these suspicions might once have been justified, I can offer an assurance from my personal experience that this is certainly not now the case.

Nevertheless, you have to be able to provide context to your answers for those members of the Court who may be struggling to see how the answer you are making fits into the context of the case. The best way to do this is to begin your written outline with a precise and concise statement of the issue or issues on which the case turns.

Sir Owen Dixon said: “I have always thought that the clear definition of the exact question to be … decided is a most important factor.”3 Bear in mind in formulating the issues for determination on appeal the need for a precise identification of the issue. A precise identification of an issue does not necessarily mean a narrow statement of the issue.

Whether the issue should be put broadly or narrowly will depend on your assessment of the strengths and weaknesses of your case. If your strength is in a black letter legal proposition, your precise definition of the issues might be quite narrow, but if you need to appeal to broader discretionary considerations, your statement of the issues may need to be broader.

There is now a formal requirement in the Practice Directions of many courts that the issue said to arise on the appeal be identified with precision.

This requirement draws upon the greater experience with written argument in the courts of the United States. Bryan A Garner, in “A Dictionary of Modern Legal Usage”, 2nd Ed (1995) at 471, said: “[t]here is no more important point in persuasive and analytical writings — and certainly no point that is more commonly bungled – than framing the issue”. Garner says that the statement of the issue should be no more than 75 words in a format of “statement, statement, question”, or “premise, premise, conclusion”.

By way of example, one would write:

“The appellant was injured in the course of his employment. His injury was, however, suffered away from his place of work and was inflicted by a third party. Was the appellant obliged to comply with the procedural requirements of the Workers Compensation and Rehabilitation Act 2003 in order to bring an action against that third party?”

Point 4

So far as the formal presentation of written argument in a complex appeal is concerned, clarity of statement requires clarity of structure. The structure will vary depending on whether one is concerned with issues of fact or law.

Sir Owen Dixon offered an interesting insight in a letter to Lord Morton of Henryton. He said that the great risk of making a “very good argument very clearly, [is] that a critical mind reflecting upon it might get to the unexplored foundations of the case and then heaven [knows] how we should get on.”4

Of course, that also means that you and your client may be forced to confront the soft part of your case.

William of Occam, rather than St Rita, should be the patron saint of advocates. Simplicity of statement has a force all of its own.

The most frequent complaint of judges about advocates is that they run too many points.

No advocate I have seen wielded Occam’s razor with the skill of Murray Gleeson. He would always pare his case down to the propositions essential for his best argument; and he would not clutter his good argument by presenting it festooned with the distraction of less compelling arguments. This approach requires skill, courage and confidence.

Point 5

An allied problem is the excessive citation of cases, both at first instance and on appeal.

In relation to appeals the problem is particularly acute in appeals against the assessment of damages and in applications for leave to appeal against sentence. I have sat on hearings in these kinds of cases in which dozens of cases were cited as if multiple citations were a badge of merit.

It may impress solicitors and clients to show them outlines festooned with citations, but it is likely only to antagonise the bench. We are, by virtue of our self-flagellatory sense of judicial responsibility, burdened by the need to address the cases cited to us to explain why each case is unhelpful to the argument for which it is cited.

Any advocate worth his or her salt must be able to decide what is the best authority in support of a proposition of law which is part of his or her case. It is because you are expected to have that ability that you have been retained to argue the case.

Unless there is doubt as to whether that proposition is securely established, it should not be necessary to cite multiple cases. No-one should think that the argument gains force from the citation of other cases which are no more than examples of the application of the proposition.

Just as handing up ten copies of the Courier-Mail does not make the story more true.

As Lord Diplock said in Lambert v Lewis:5

“The citation of a plethora of illustrative authorities, apart from being time and cost-consuming, presents the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase.”

Point 6

My next point is concerned with appeals against findings of fact. The controlling aspect of the presentation of a written outline on appeal is an appreciation of the constraints upon a successful challenge to a finding of fact by the trial court.

You must be thoroughly familiar with the constraints which limit the scope for an appellate court to overturn a finding of fact, especially if that finding depends on an assessment of the demeanour of the witnesses at trial.

You must understand the difference between seeking to persuade an appellate court to reach a different ultimate conclusion of fact from the primary facts and seeking to persuade the court to come to different findings of primary fact, especially where questions of credibility of witnesses are involved.

If you wish to persuade the appellate court to come to a different finding of fact, you should identify and articulate with precision the particular finding of fact you are seeking to challenge. Remember that, because of the constraints that apply, the narrower the finding you need to dislodge, the less your difficulty will be. On the other hand, your challenge must not be so narrow as to leave the ultimate conclusion adequately supported by other facts.

You should show that you understand and accept the discipline of the test you are trying to satisfy. You must then marshal the bits of the evidence on which you want to rely together with, if relevant, any statements from the reasons of the trial judge which show the judge’s misappreciation of facts that are common ground, or weak or inconsistent reasoning.

It is essential that you take the time and trouble to do this in your written outline: it is very difficult to do in oral argument unless the error is so obvious that it hardly needs any demonstration at all.

Point 7

Think about whether you need to put in a written submission in reply. Don’t put in a written submission in reply just because the timetable set by the Registrar contemplates that there may be submissions in reply.

Where the appeal involves an attack on findings of fact, it is likely that there will be a need to tidy up the state of play concerning the evidence. But otherwise you may think that the best course is to reserve your response for oral argument.

Point 8

More and more often you are likely to encounter an unrepresented litigant on the other side: usually the unrepresented litigant will be an appellant. When you are opposed to an unrepresented appellant, you may think that the argument sought to be pursued is hopeless.

But you should not assume that you do not need to make as full a response as you would if the other side had legal representation.

In fact, you may need to be even more on your guard than usual. The Court may be confused about some issue raised by the litigant in person. You should ensure you clarify the position, and bear in mind that you may need to be able to do that because the litigant in person may, even with the best will in the world, confuse the court.

You should expect that the court will look to you to bring order out of chaos. And you should expect that the Court will require you to display courtesy and calm in dealing with even the most exasperating of unrepresented litigants. Everyone before the Court is entitled to be treated with dignity even if they seem to be busily engaged in giving it away.

You should expect that the Court will look to you to state precisely and fairly the reason why the point sought to be agitated by the litigant in person is without substance.

Point 9

Where you seek to adduce new evidence on appeal, you must ensure that your outline makes that intention clear and addresses the criteria for the admission of new evidence on appeal.

And bear in mind that, practically speaking, once you take that course, you are flagging to the court your own appreciation that the best outcome you expect for your client is a retrial. If for some reason that is not so, then you need to articulate the reasons why.

Conclusion

It will, I hope, be apparent that what I have been talking about is a collaborative process between judge and advocate. As I have said, it is essential that it should be mutually respectful. Just as the process requires a degree of judicial restraint to allow the advocates to do their job, so it requires a level of self-effacing commitment to the task on the part of the advocate.

It has been a long time since the words “self-effacing” and “American lawyer” have appeared in the same sentence. But the problem of self-promotion has spread even to the English Bar.

For some years now profiles of barristers have been published by various sets of barristers’ chambers in London. One example, which is now a few years old, emanated from Essex Court Chambers. This set evidently contains some very superior barristers indeed. Let me read to you a short sample of what they say about themselves, or what their clerks let them say about themselves.

One paragon of the English Bar is the “fierce” Andrew Hochhauser QC who “comes across as prickly”, which is apparently only a “symptom of the fact that Andrew ‘takes great pride in his work'”. He is “one of the best cross-examiners around”. He comes across “as urbane and civilized until you unleash him – then he becomes a Rottweiler”. He is said, with scant respect for the function of the judge in the cases in which he appears, to be “good for cases where you want to rough up the opposition”.

In relation to banking law, Gordon Pollock QC is described as Chambers’ “Headline grabber” and “a contender for any huge case”.

In commercial litigation generally Mr Pollock’s blurb describes him as “the Bar’s most frightening barrister” – “revered as a formidable cross-examiner”, who “scares everyone rigid because he’s so aggressive and dominant”. He is, the PR machine guarantees, “a first rate gunslinger” who is “never afraid to take on the weakest cases” and “often turns the opposition’s spines to jelly”.

Imagine allowing people to publish this sort of rubbish about you to the world. Much worse, however, would be if you actually believed it to be true: because you might actually see your cases as being all about you, and your relationship to the headlines. That will become manifest in your dealings with your opponents and the Bench.

As it happens, Mr Pollock QC was leading Counsel for the plaintiffs in the infamous Three Rivers Case [2006] EWHC 816. That case went for many years. At the end, it turned out that the case Mr Pollock was presenting had no basis. Mr Pollock was, during all this time, it seems, true to the image conveyed in his chambers profile. Justice Tomlinson observed: “Mr Gordon Pollock QC was only occasionally rude to me …”

Of course, advocates can’t be expected to be shrinking violets.

Of the need for barristers to have a “well-padded vanity”, Sir Maurice Byers said:6

“What in other professions might be considered a blemish, even a disqualification, is in a barrister an essential attribute: lurking behind the diffident smile of the shyest junior is a conceit of Napoleonic proportions. Unless this was so, how could one survive in this most competitive, independent and gladiatorial of professions?”

But civility between the Bench and the Bar is the formal expression of this ethos of a selfconscious modesty and restraint, which is one of the hallmarks of true dedication to the administration of justice.

The willingness to spend unglamorous hours in preparation, organising the evidence and sifting out the irrelevant, minimising the time spent in court and focusing on the client’s case and not one’s self, are all really no more than an appropriate respect for one’s craft and for the doing of justice to which that craft is essential.

And it is because of that that the judges continue to wish you well.

Thank you for your attention.

The Hon Chief Justice Pat Keane

The Byers Lectures 2000-2012 Eds Perram and Pepper 2012, The Federation Press, at p 9.
Mason AF “Vale Sir Maurice”. Eulogy delivered at the Memorial Service for Sir Maurice Byers, St Mary’s Cathedral, Sydney, 8 February 1999. See The Byers Lectures 2000-2012, Eds Perram and Pepper (2012) The Federation Press at p 302.
Ayres, “Owen Dixon”, 2003 The Miegunyah Press, p 49.
Ayres, “Owen Dixon”, 2003 The Miegunyah Press, p 44.
[1982] AC 255 at 274.
Perram and Pepper at 298.

A paper presented at the 2009 W.A. Lee Lecture in Equity on Monday, 2 November 2009.*

I am honoured to have been asked to deliver this year’s W.A Lee Lecture. Tony Lee has been, for four decades, a highly-regarded and much-loved teacher of equity to generations of lawyers in this State. In the 1970s Tony taught me Equity and later Succession; and in the early 1990s I had the privilege of serving with him on the Queensland Law Reform Commission where he was a bottomless well of erudition.

Last year’s lecture in this series in honour of Tony Lee was given by Justice Michael Kirby. His Honour’s thesis was that to the extent that it is still not generally accepted in Australia that the doctrines of equity have mingled generally with the rules of the common law, that is only because that desirable outcome has been obstructed by what his Honour described as the isolationism of some Australian equity scholars and judges. This isolationism was said to stand in the way of the development of a single coherent body of legal principle.

Justice Kirby argued that the development of equity in Australia has been blinkered and inconsistent with the underlying principles of equity by reason of this isolationism, and that Australian jurisprudence should follow the lead of the Supreme Court of Canada in mixing and matching equitable doctrines and legal rules in order to achieve more perfect justice.

Justice Kirby’s lecture was, rightly, received with great acclaim. I know that Tony Lee enjoyed it immensely.

I hope that Tony won’t mind if tonight we carry on the discussion and that I introduce a note of scepticism. I suggest that to see differences between fundamental equitable principles and the rules of the common law which stand in the way of a unified theory is not to take a blinkered view but to recognise some things which seem to have vanished from sight in the Canadian jurisprudence.

Specific issues

Justice Kirby’s paper drew on the paper delivered at Oxford in March 2001 by Professor Andrew Burrows.1 Professor Burrows made the point that, because there are some categories of case where common law and equity may co-exist coherently while there are other categories where they may not, we need to get down to specifics in order to distinguish one category from the other, in any meaningful way.

Justice Kirby referred to four specific examples of his complaint, first, to the refusal of the High Court in Breen v Williams2 to hold that the fiduciary obligation of a doctor to his patient encompassed the provision of the doctor’s notes of the patient’s previous treatment, and secondly, to the failure of the High Court to deploy the concept of fiduciary obligation, as have Canadian courts, as a means of vindicating the claims of indigenous occupants of land in Australia.

I pause to say that there can be no denying that Canadian jurisprudence has embraced with enthusiasm the notion of fiduciary duty. I am told that Sir Anthony Mason has said that in Canada there are three types of persons: those who have been held to be fiduciaries; those who are about to become fiduciaries; and judges.

Justice Kirby’s third specific complaint concerned the failure of Australian courts to follow the Canadian lead in awarding exemplary damages for breach of equitable obligations.

Justice Kirby’s fourth specific complaint concerned the High Court’s refusal in Farah Constructions Pty Ltd v Say-Dee Pty Ltd3 to accede to the view that the liability for receipt of trust property should now be based strictly on a restitutionary approach under which the liability of the recipient may be established without the need for notice of the breach of trust to the recipient. This is not a particularly good example of the superiority of the Canadian jurisprudence. In relation to recipient liability, the Supreme Court of Canada in Citadel General Assurance Co v Lloyds’ Bank Canada,4 a case decided ten years before Farah Constructions, explicitly rejected a strict restitutionary approach and insisted that dishonesty on the part of a third party recipient of trust property is essential to liability to the beneficial owner.

I was inspired to pursue my theme, not by a concern to defend the authors of Meagher, Gummow and Lehane – that would be impertinent – but by Justice Kirby’s confidence that, in the fullness of time, the soundness of his views would be vindicated by his disciples, of whom there are many, amongst today’s law students. Whether the particular outcomes he supports in his lecture are to be welcomed and whether they might better be achieved by legislation, I express no view. I seek only to say that the essential values and principles of equity do not support those outcomes.

The Big Picture

As I say, I am not concerned with whether the Canadian outcomes are to be preferred in terms of broad notions of justice: I am concerned rather with whether the Canadian approach is driven by a more faithful adherence to the essential principles of equity than is exhibited by Australian courts.

To this end I want to try to present the differences as part of a Big Picture. And the Big Picture is of human selfishness, and the extent, and standards by which, individual self-interest, especially in trade and commerce, is to be restrained by the courts.

We are a rights-conscious society: the essence of a right is the entitlement to have our own way and to have others accept that entitlement. When we look at this Big Picture we can, I think, more readily see that there are reasons for differences between equitable doctrines and common law rules especially in relation to the regulation of business.

I will begin with a brief reflection upon the medieval origins of equitable doctrines in the court of Chancery. I hasten to acknowledge that I respect a central feature of the argument of Kirby J which was, of course, that the past should not control the future. (I am also particularly mindful that Justice Michael McHugh once described Roddy Meagher, one of the authors of Meagher, Gummow and Lehane, as one of the finest minds of the 16th Century.)

But, after all, Justice Kirby did invoke Sir Anthony Mason’s view that equity’s “ecclesiastical natural law foundations” is one feature which equips equity better than the common law “to meet the needs of the type of liberal democratic society which has evolved in the twentieth century.”

Sir Anthony Mason also referred in this connection to equity’s concern with “standards of conscience, fairness, and equality … as well as its discretionary approach to the grant of relief.” We cannot, without some degree of inconsistency and contradiction, accept the starting point which establishes equity’s mission and method, and deny the conclusions which flow from that starting point.

I suggest that from a reflection upon the “natural law ecclesiastical foundations of equity” three modern resonations emerge: equity operates by way of exception to the legal order of the realm, equity is more concerned to restrain the exercise of rights than to promote them, and the notion of “conscience”, which is of central importance to its mission, is not about the state of mind of the defendant.

I will then turn to address the specific problems addressed by Justice Kirby. In relation to them, I suggest that:

(a) as to fiduciary obligation, the conscience of equity does not impose the heavy burdens of selflessness demanded of a fiduciary upon a person who has not voluntarily entered into a relationship which involves those burdens;

(b) so far as fiduciary obligation as a source of native title is concerned, Canadian legislation created the possibility of a fiduciary obligation on the Crown, whereas radically different legislative regimes in Australia denied that possibility;

(c) as to the recovery of exemplary damages, the conscience of equity does not support windfalls for plaintiffs and it is not in the service of the demands of public policy that a defendant be punished as a deterrent; and

(d) as to liability for receipt of trust property, if liability for receipt of trust property is to be imposed on a stranger for the benefit of a plaintiff who has chosen to deal through a fiduciary, actual dishonesty on the part of the stranger is necessary to justify equitable intervention to relieve the plaintiff.

The natural law ecclesiastical foundations

The institution of the trust developed in England as a result of the work of the clerics who, until the Reformation, constituted the Chancellors and the Masters of Chancery.5 It was only under the Tudors that Chancery was transformed into the High Court of Chancery.

The mindset of the late medieval and early modern clerics who established equity’s mission was formed within an intellectual tradition, articulated most authoritatively by Thomas Aquinas, which accorded primacy to the idea of the person as opposed to the individual.6 Within this tradition the emphasis was upon the community as a society of persons in relationship with each other and, of course, with God, rather than a multitude of atoms bound together only by prudent bargains struck at arm’s length. This tradition was concerned with the social responsibilities of individuals, not their rights.

When we speak of Thomas Aquinas, it is worth reminding ourselves that Aquinas looked to Aristotle, referring to him simply as “the Philosopher”. Aristotle regarded an even-handed willingness to refrain from insisting upon the full measure of one’s legal rights as a very great social virtue. He called this virtue “epieikeia”. In Latin it was “aequitas” and in the slower Anglo-Saxon tongue “equity”. It would be surprising if a concept that entered the history of ideas as an idea of virtuous self-restraint should have developed into a driver of the expansion of rights.

We know that not long after the Conquest, Chancery had taken it upon itself to ensure that trustees conscientiously performed their duties. Oliver Wendell Holmes thought that the trust as an institution of the law of England had its origins in the customs of the Germanic tribes.7 However that may be, we know that the use, or the trust, was being deployed in England at the time of the Crusades to protect the heirs of those who took the Cross against the depredations of those who stayed home.8

Warriors travelling to the Crusades needed to be able to ensure that their lands, and their children’s inheritance, would be defended by trustworthy persons against those who would supplant them by force. In the kleptocracy which was Norman England, these were heavy burdens indeed. Chancery insisted that trustees resist the ordinary human temptation to self-interested behaviour in discharging their heavy burdens.9

The principal concern of the common law judges, from Bracton onwards, was with the nascent conception of sovereignty and the exercise of rights by the government and the governed.10 The conscience of equity inherited from Chancery is a collection of standards of conduct which reflect different ethical considerations from those which inform common law rules of tort and contract. The common law dealt, and still deals in, rights which can be enforced against the world. Common law remedies were available as of right: Magna Carta promised no less. In this legal landscape, Chancery’s intervention was necessarily exceptional.

The King’s judges who administered the common law were principally focused upon the external aspects of land ownership. That is because it was the person who was seised of the land from whom feudal service, including, importantly, military service, was expected. The notion that a person could have the benefit of ownership of land without the burdens of feudal service was inconsistent with, and indeed potentially subversive of, an essential aspect of the structure of the nascent state. It was the opposition of the common lawyers to the subversive effects of the trust which led ultimately to the Statute of Uses in 1536.11

It is also worth noting that the clerics who staffed the medieval Chancery, unlike the judges of the courts of common law, were not dependent upon the jury to supply it with the factual basis for the decision of a case. Until the time of Francis Bacon, Chancery followed a practice of examining witnesses to inform the conscience of the court. This practice may have derived from continental procedures: that would hardly be surprising because in both cases procedures of the confessional were part of their professional lives: resort to examination of the parties in order to get at the truth of a dispute and to reconcile them with the conscience of the court did not involve a creative leap.

Chancery was flexible. As reconciliation after sin could be made conditional upon the doing of penance, so relief in equity could be made conditional on the plaintiff conforming to the requirements of conscience.

Holdsworth says, the “power and jurisdiction [of Chancery] increased as the rules of the common law grew ever more fixed; and the result was that the strictly medieval conception of equity had a longer life in England than in any other country in Europe, and a history which was quite unique.”12

By the fifteenth century the Chancellors were sufficiently independent that they were prepared “to satisfy the demands of conscience even though their action involved a dispensation with the rigid rules of law.”13 Importantly, the clerical chancellors of this period did not act by reference to considerations of public policy but to “the principles of scholastic philosophy, and to the rules of the civil and canon law which had given to those principles a technical shape and a practical application to the solution of legal problems.”14

Of course, too much should not be made of the influence of medieval Catholic moral philosophy on the Chancellors and their clerical staff. Chancery also drew upon canon law, mercantile law and had the benefit of argument from the common lawyers who argued cases in Chancery.15 It has been a long time since an English Lord Chancellor has cited Thomas Aquinas. Professor Birks was probably right to say that “[f]rom the time of Lord Nottingham [1673 – 1682] if not before, the value which served as equity’s guiding light, was legal certainty.”16 But the intellectual inheritance of Chancery had modern ramifications in terms of the Big Picture.

When equity did intervene to prevent unconscientious conduct, it was not concerned solely with the conduct of the defendant. Chancery required conscientious behaviour by plaintiffs as well. This point of view finds one modern expression in the maxim that the person who seeks equity must come with clean hands.17

Modern resonations

Three modern resonations of the legacy of Chancery are to be noted here. First, a desire to vindicate a legal right is not sufficient to engage the conscience of equity; indeed, when that conscience is engaged, it is often to restrain the exercise of legal rights. Secondly, the entitlement to equitable relief can be made to depend on the plaintiff conforming to standards of conscientious behaviour. Thirdly, Chancery sent no mission to the merchants to seek to regulate trade and commerce. It gave relief appropriate to protect the integrity of fiduciary relationships where it found them, but, until the Canadian Awakening, it did not seek to construct them.

Engaging the conscience of equity

In 1853 in Clough v Ratcliffe,18 Knight-Bruce VC famously said: “Nakedly to declare a right, without doing or directing anything else relating to the right, does not, I conceive, belong to the functions of this Court.”

This is a statement of the long established attitude of equity, not merely a reflection of pre-Judicature Act practice and procedure. The point is not merely that infringement of a legal right did not of itself lead to the intervention of equity. The plaintiff had to be able to stake a claim on the conscience of equity; and merely having one’s legal rights infringed would not do.

A strong illustration of this point is provided by the cases which made it clear that equity would not allow a borrower of moneys to take advantage of money lending statutes which made certain loans illegal for the protection of the borrower unless the borrower was willing to “submit to the repayment of the moneys borrowed remaining unpaid”.19

Even where the money lending legislation rendered the loan agreement and securities void, equity would not grant relief to a borrower – not even a declaration of invalidity – unless the borrower was willing to act in good conscience by offering to repay the moneys borrowed. The borrower might have a legal right under the statute to be relieved of the loan but the assistance of a court of equity would only be available if the borrower was prepared to make restitution of the loan moneys.

As Sir Owen Dixon explained in Mayfair Trading Co Pty Ltd v Dreyer,20 the ability and willingness of a plaintiff to restore the defendant as a pre-condition of equitable relief to give effect to a legal right was one of the “basal considerations determining in a court of equity the plaintiff’s equitable title to relief”.21 The plaintiff’s rights, and the public policy reflected in the legislation which conferred those rights, simply were not sufficient to engage the conscience of equity.22 It was only when the legislation made it clear that the borrower should be entitled to relief without doing equity that equity’s insistence on conscientious behaviour by the borrower was overcome.

In Langman v Handover,23 Dixon and Rich JJ identified this insistence on mutuality and fair dealing as expressed in the maxim that a person who seeks equity must do equity. Their Honours said:24

“In the important judgment which Wigram VC gave upon the maxim that he who seeks equity must do equity, in Hanson v Keating ((1844) 4 Ha 1; 67 ER 537), after instancing the necessity imposed upon a plaintiff in a bill for an account, of submitting himself to account in the same matter, and in a bill for specific performance, of submitting to perform the contract, he proceeds ((1844) 4 Ha, at pp 5, 6; 67 ER 537) :– ‘In this, as in the former case, the Court will execute the matter which is the subject of the suit wholly, and not partially. So, if a bill be filed by the obligor in an usurious bond, to be relieved against it, the Court, in a proper case, will cancel the bond, but only upon terms of the obligor refunding to the obligee the money actually advanced. The reasoning is analogous to that in the previous cases. The equity of the obligor is to have the entire transaction rescinded. The Court will do this, so as to remit both parties to their original positions: it will not relieve the obligor from his liability, leaving him in the possession of the fruits of the illegal transaction he complains of.’ In such cases the equity is founded, not upon the necessity of protecting the party’s legal rights, but upon his willingness to resign them in order that he may be restored to the position he occupied before he embarked upon the transaction which turns out to be unlawful.”

Another illustration of this point is afforded by equity’s long-standing unwillingness to grant specific performance of a contract of personal service. At the practical level, this reluctance was explained to be based on perceived difficulties in supervision of the court’s orders. At the deeper level of principle, it was grounded in a concern about the unfairness, in terms of mutuality, of compelling an employer to continue the employment of a person in whom the employer had lost confidence.25 Justice would best be served in such a case by leaving the parties to their remedies in damages at law.

And in the area of estoppel, in The Commonwealth v Verwayen,26 Deane J recognised that an attempt by a plaintiff to set up an estoppel by conduct might itself be “unconscientious” because that remedy would be disproportionate to any detriment which the plaintiff might suffer if the estoppel were rejected. Such a result could, his Honour said, be defeated by attention to the plaintiff’s position. Deane J supposed:

“a case in which the party claiming the benefit of an estoppel precluding [the defendant’s] denial of [the plaintiff’s] ownership of a million dollar block of land owned by [the defendant] would sustain no detriment beyond the loss of one hundred dollars spent on the erection of a shed if a departure from the assumed state of affairs were allowed (cf, eg, Ramsden v Dyson (1866) LR 1 HL 129 at 140 – 141; Sheridan v Barrett (1879) 4 LR Ir 223 at 229 – 230).”

Deane J suggested that in this hypothetical case, “the payment of, or a binding undertaking to pay, adequate compensation would preclude a finding of estoppel by conduct.”27

The conscience of equity

The late Professor Birks was sceptical as to whether the modern law of equity can be said to owe anything of significance to the views of 14th Century Roman Catholicism as taught by Thomas Aquinas.28 But Professor Birks regarded as radically unacceptable the notion that the idea of conscience should now develop by the application of intuitive and subjective understandings of the difference between good and evil.29

Professor Birks may have had in mind the following passage from the reasons of McLachlin J (as her Ladyship then was) in Soulos v Korkontzilas:30

“A judge faced with a claim for a constructive trust will have regard not merely to what might seem ‘fair’ in a general sense, but to other situations where courts have found a constructive trust. The goal is but a reasoned, incremental development of the law on a case-by-case basis.”

It is, I think, possible to accept that the standards enforced by equity have evolved since the fourteenth century without acceding to the view that the conscience of equity is no more than the subjective view of the individual judge as to what is fair or reasonable in any given case. The remedial tail of the constructive trust should not wag the doctrinal dog of good conscience. And most importantly the constructive trust may be a construct of the courts but the relationship which involves these burdens must be voluntarily assumed in fact.

In Pomeroy, (with Scott on Trusts, surely the greatest American textbook on equity), it is explained that the “‘conscience’ which is an element of the equitable jurisdiction came to be regarded, and has so continued to the present day, as a metaphorical term, designating the common standard of civil right and expediency combined, based on general principles and limited by established doctrines, to which the court appeals and by which it tests the conduct and rights of suitors – a judicial and not a personal conscience.”31

In this conception, the conscience of equity is a repository of values and standards whereby the conduct of suitors is tested. It is not concerned simply with whether the conduct of a defendant is reasonable or fair.

Equitable intervention in commerce is exceptional

Chancery never set out to provide general regulation of dealings in the market place, being more concerned with real property. Chancery did not set out to correct the clear eyed and hard hearted perception of the common law that loss suffered in trade or commerce “is often no more than one of the ordinary consequences of participation in a market economy.”32

The common law regards the aggressive pursuit by a trader of his or her commercial interests as legitimate so long as it is conducted honestly and with reasonable care for those at risk of harm if reasonable care is not shown. In a market economy “rivalry between participants is an essential and defining feature: rivalry in which each participant seeks to maximise its profit and market share at the expense of all other participants in that market.”33

In our law of contract, the right of self-interested action, even when it operates unreasonably or unfairly at the expense of others, is embodied in the “traditional common law approach” conveyed by the maxim caveat emptor.34

In trade or commerce a relationship in which one is obliged to disregard one’s own material interests for the benefit of another person is obviously exceptional. This is the standard of behaviour which equity required of a fiduciary. And there was no reason to insist on adherence to that standard save where there was voluntarily assumption of the responsibility for the interests of another which brought with it the extraordinary obligation of selflessness.

Different interests and ethical standards

We can readily recognise radical differences between the standard of absolute loyalty required of a fiduciary and the standard of reasonable care in negligence and reasonableness in the law of contract.35 These differences ought to provide a warning to resist the human urge to see patterns which suggest an underlying unity of concepts. To elide these differences in pursuit of a common standard of fair and reasonable behaviour is to fail to recognise that the rules of equity and the common law reflect radically different views of the legitimacy of human selfishness and of occasions for its control.

In some respects the duty owed by a fiduciary to the beneficiary of that duty is more onerous than the common law duty to take reasonable care, and in some respects it is less rigorous. In one sense, the strictness of the fiduciary obligation surpasses that involved in the concept of reasonable care. The great cases of Keech v Sandford,36 Regal (Hastings) Ltd v Gulliver,37 and Boardman v Phipps38 establish that a fiduciary must disgorge a profit made from the sale of property acquired by reason of an opportunity which arose in the course of the fiduciary relationship even though the beneficiary could not or would not have taken up the opportunity. In none of these cases could it sensibly be said that the fiduciary failed to avoid causing harm to the beneficiary much less that the fiduciary had failed to exercise reasonable care to do so.

A person who owes a duty of care in negligence is obliged to do only what is reasonable not to harm the other, and he or she is entitled to give effect to his or her own selfish interests in that regard; indeed, the determination of what is reasonable in the context of tort law can only be made by taking into account the cost to the person of the steps necessary to ameliorate the risk of harm to the other and deciding whether the risk is such that the incurring of the expense is reasonably warranted.

A classic example of a fiduciary relationship is that between employer and employee. It is the employee who owes the fiduciary obligation to the employer. That is because it is the employee who deals with third parties and with the employer’s assets on behalf of the employer. The employee voluntarily agrees to subordinate his or her interests to those of his or her employer in representing the employer to third parties. But it has never been thought that the fiduciary obligation is owed both ways. The duty which the employer owes the employee is one to take reasonable care to avoid causing the employee harm. It is imposed on the employer as part of the social cost of doing business. As Lord Atkin said in Donoghue v Stevenson:39 “… liability for negligence … is … based upon a general public sentiment of moral wrongdoing for which the offender must pay.”

The employer’s obligation extends only so far as the foreseeable risk of harm extends. Altruism has very little to do with the duty to take reasonable care imposed by the law of tort. In sharp contrast, the fiduciary obligation leaves no room for any sort of self-interested calculation so far as the subject matter of the obligation is concerned: the fiduciary is absolutely required to deny his own interests in favour of the person for whose benefit he must act. And in equity, it is the insistence upon mutuality of conscientious behaviour by claimants, rather than the common law notion of foreseeability, which serves as the principal brake upon what would otherwise be an ever expanding proliferation of liabilities.

The fiduciary obligation is absolute, subject to the knowing consent of the beneficiary, because nothing less is regarded as a sufficient protection for the interests of the beneficiary against the powerful temptations of self-interest. The fiduciary obligation is a special exception to the acceptance of selfishness as a fact of life. The common law recognises the legitimacy of selfish behaviour so long as it is honest and reasonable. Equity was not so liberal where it found a fiduciary relationship; but its intervention was exceptional.

The burdens of the obligation of self-abnegation upon a trustee are heavy. Why would it be thought to accord with conscience to impose those burdens upon a person who had not freely and deliberately accepted them?

Another way of looking at it is to say that it would be a violation of mutuality in a relationship and contrary to the conscience of equity for the soi-disant beneficiary of a fiduciary duty to assert an entitlement to the benefit of an objection of self- abnegation against a person who has not willingly accepted the corresponding burden.

While the obligation is absolute, the strict claims of conscience are confined to a voluntary undertaking in respect of a particular subject matter. It is as much the law in England as it is in Australia that a fiduciary obligation can only exist with respect to a given right or interest.40 In practical terms, the less weight one gives to this consideration, the more the grant of remedies in rem, such as a constructive trust over property, is apt to create commercial uncertainty and to cut across the rateable distribution of assets in bankruptcy and corporate insolvency. The circumstances in which the rateable distribution of a debtor’s assets to its creditors can be trumped by the imposition of a constructive trust should be extended only for compelling reasons which will not expose the courts to the reproach that they are increasing the hazards of carrying on an honest business.

If there is no relationship between people engaged in commerce beyond common participation in the market, there is no occasion for the enforcement of rules appropriate to a relationship of voluntary self-abnegation.41

If one loses sight of these differences, coherence and certainty suffer.

In the Supreme Court of Canada in LAC Minerals Ltd v International Corona Resources Ltd, it was said:42

“There are few legal concepts more frequently invoked but less conceptually certain than that of the fiduciary relationship. In specific circumstances and in specific relationships, courts have no difficulty in imposing fiduciary obligations, but at a more fundamental level, the principle on which that obligation is based is unclear. Indeed, the term ‘fiduciary’ has been described as ‘one of the most ill-defined, if not altogether misleading terms in our law’.”

I make two comments on this passage. First, the conceptual uncertainty as to what is meant by a fiduciary relationship is resolved to a large extent if one accepts that the fiduciary obligation is indeed an incident of a relationship of dependency which the parties have, in fact, voluntarily brought into existence: it is not an obligation which is deemed to exist because it is thought to be fair or reasonable in all the circumstances.

To regard a fiduciary obligation as something to be imposed where it is thought fair and reasonable to do so,43 rather than a consequence of a voluntary acceptance of a relationship involving self-abnegation in respect of a particular subject matter, is not to develop equitable principle but to break radically with it.

Secondly, this passage serves to remind us to the need to be careful about the terms in which we discuss a particular legal problem. When Canadian or American lawyers discuss issues other than the fiduciary obligation of loyalty, such as, for example, the obligation of good faith as between parties to a contract, they still tend to use the terminology of fiduciary duty. These differences of terminology can be confusing: the attachment of the label “fiduciary” to the contractual obligation of good faith adds nothing of substance to the implied term of contract, long recognised in Anglo-Australian law, that every contract obliges each party to do all things reasonably necessary to ensure that the other party obtains the benefit of its bargain.44 And it is also undesirable that these differences in terminology can give rise to questions such as whether equitable remedies, such as the constructive trust, should be available for breach of contract.

Breen v Williams

In his 2008 Lecture, Justice Kirby singled out for special criticism the decision of the High Court in Breen v Williams45 in which it was held, contrary to his Honour’s dissenting view in the New South Wales Court of Appeal, that a doctor was not duty-bound to give a patient access to records created by the doctor. The High Court declined to follow the decision of the Supreme Court of Canada in McInerney v MacDonald46 that a patient is entitled to reasonable access to examine and copy the doctor’s records.

In McInerney v MacDonald,47 La Forest J delivered the judgment of the court. His Lordship’s reasons are not susceptible to summary statement. There are a number of propositions which lead to the conclusion. These include the proposition that “when a patient releases personal information in the context of the doctor-patient relationship, he or she does so with the legitimate expectation that these duties will be respected.”48 The duties in question were said to be “the duty of the doctor to act with utmost good faith and loyalty, and to hold information received from or about a patient in confidence”.

La Forest J relied upon a line of United States cases49 as indicating that a doctor owes his or her patient a duty “to act with the utmost good faith and loyalty”,50 and went on to hold that “the fiduciary qualities of the relationship extend the physician’s duty … to include the obligation to grant access to the information the doctor uses in administering treatment.”51

It was also said that “the fiduciary duty to provide access to medical records is ultimately grounded in the nature of the patient’s interest in his or her records … The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient’s interest in and control of the information will continue.”52

The conclusion was that “in the ordinary case, these records should be disclosed upon the request of the patient unless there is a significant likelihood of a substantial adverse effect on the physical, mental or emotional health of the patient or harm to a third party.”53 As to how and by whom this balancing exercise is to be performed, La Forest J went on to say that: “This general rule of access is subject to the superintending jurisdiction of the court.”54 The idea that one cannot know the content of the conscience of equity in advance of a decision of the court suggests that we are in the realm of subjective assessment rather than principles and standards.

This reasoning draws upon a range of concepts such as confidentiality but the conclusion is essentially founded on the concept of legitimate expectations, the extent of which is to be determined on an ad hoc basis by the court. It has to be this way, of course, because what is encompassed by legitimate expectation can only be known when the court declares that the expectation is indeed legitimate.

At work here is the unifying tendency to treat the conscience of equity as equivalent to what is fair or reasonable in a particular case. This unifying tendency can operate only if one puts to one side considerations of mutuality which require a fiduciary to sacrifice his or her own interests only insofar as he or she has voluntarily assumed that burden. The demand might be reasonable, but that doesn’t make it equitable of the plaintiff to make it.

The issue in question in McInerney v MacDonald was not whether the patient was entitled to information about the patient’s condition but whether the patient was entitled to the doctor’s records concerning the patient. Those records were made by the doctor. The doctor was not acting as the patient’s confidential secretary to keep a record of the patient’s thoughts. The patient had not bargained to be given the records on request. They are, as La Forest J recognised, the property of the doctor.55 The doctor was not seeking to put the records to some use to the detriment of the patient which might engage the conscience of equity.56 It was the patient who was asserting a claim upon the doctor’s property, and upholding that claim was at odds with equity’s fundamental respect for property rights. So what was it that engaged the conscience of equity to trump the doctor’s property rights?

It should also be borne in mind that a doctor’s records will not consist only of information provided by the patient. They can be expected to contain comments by the doctor about the patient, or statements by others about the patient. These comments may be necessary for the exercise of reasonable skill and care in the provision of professional advice and treatment about the patient, but by no stretch of the imagination can they be described as “belonging to the patient”. Both the doctor and his or her sources of information may have legitimate interests in preserving confidentiality between them, especially in respect of information which might confuse or alarm the patient or even give rise to claims by the patient against others,57 for reasons entirely unconnected with the quality of the medical treatment or advice given to the patient.

Thirdly, information is not property. As Lord Upjohn said in Boardman v Phipps:58 “It is normally open to all who have eyes to read and ears to hear.” In Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2),59 Deane J (definitely not an equity isolationist) said that the rational basis of equity’s jurisdiction to protect information “does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained.” The question is whether the circumstances of the acquisition of information are such as to attract an obligation to deal with it in a particular way.

It tends to skew the relationship by imposing on the doctor an obligation to provide his or her own records to his or her patient for purposes entirely unconnected with the provision of medical treatment or advice. Is it really in accordance with good conscience on the part of the patient to require access to records of a doctor’s enquiry of others to enable the patient to bring an action for defamation against them? Is such an idea likely to be conducive to cooperation by third parties with the doctor whose concern is only to heal the sick?

These questions might be thought to raise questions of principle and policy sufficient to justify the reluctance of courts in Australia and England to impute to a doctor a willingness to assume an obligation to imperil himself, or others, where the doctor has not agreed to, and has not been paid to, subordinate his or her interests in this way.

Ironically, La Forest J, in his later judgment in Hodgkinson v Simms,60 recognised that, while claims related to undue influence, unequal bargaining power, duty of care and fiduciary duty will often arise “side by side”, the focus of the fiduciary principle is to “monitor the abuse of a loyalty reposed …” But in McInerney v MacDonald,61 there was no abuse of an obligation of loyalty on the part of the doctor. He was not seeking to deal with his own property to the disadvantage of his former client. There was no more than a refusal to provide the doctor’s records for purposes other than the patient’s ongoing medical treatment. There was no “equity” which, as a matter of conscience, was apt to trump the doctor’s legal rights to undisturbed possession of his own property? The plaintiff required the information for no better reason than to be informed about her previous treatment. The “equity” she asserted consisted of mere curiosity at best. At worst, it was a fishing expedition for grounds to sue her former doctor, or someone else.62 One cannot help thinking that her case ought to have been for pre-pleading discovery in aid of an action for negligence.

In summary, I suggest that this divergence between Canadian and Australian case law is to be understood on the basis that the Canadian approach reflects the sloughing-off of constraints which are fundamental to equity’s historic mission.

The Fiduciary Obligation and Native Title

Justice Kirby in last year’s lecture expressed regret that what he described as the “isolationist” perspective of equity lawyers in Australia had the consequence that “the earlier injustices to the traditional property interests of indigenous communities in Australia [were not] more quickly repaired.” Justice Kirby referred to the circumstance that, in Canada, “reasoning by analogy from the other more confined and propertied relationships, a doctrine was fashioned that accepted that the Crown owed indigenous peoples fiduciary obligations …”

With all respect to his Honour, it was not the blinkered view of Australian equity lawyers which obscured recognition of native title, but the insertion of the local legislature between the Crown and indigenous people.

Generally speaking, fiduciary obligations arise from a relationship existing voluntarily between the parties, one of whom has undertaken to act in a transaction on behalf of the other. Statute can create the fiction that such a relationship exists between strangers. That is what happened in Canada so far as native title is concerned. It is not what happened in Queensland.

The provisions of s 30 and s 40 of the Constitution Act of 1867 (Qld) empowered the local legislature to determine the basis on which land in the colony would be allocated.63 These provisions gave the colonists, through the colonial legislature, the power to determine independently of Westminster the legal basis on which the settlement and occupation of land in the colony would proceed. The representatives of the colonists in their legislature could effectively ignore the concerns expressed by the Imperial Government at Westminster, through such luminaries as Earl Grey, as to the displacement of the indigenous occupants of the land.

Prior to the establishment of the separate colony of Queensland, Earl Grey, Queen Victoria’s Secretary of State, had made it clear in his despatches to Sir Charles Fitzroy, the then Governor of New South Wales, that indigenous occupants of land opened up by settlement for pastoral purposes were not to be excluded from the land. In Earl Grey’s despatch of 11 February 1848, his Lordship said of the occupation of land by settlers for pastoral purposes:

“I think it essential that it should generally be understood that leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such land as they may require within the large limits thus assigned to them, but that these Leases are not intended to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil except over land actually cultivated (or fenced) in for that purpose.”

In Earl Grey’s despatch of 6 August 1849 to Governor Fitzroy, his Lordship again emphasised that the Crown’s intention in granting rights of occupation of pastoral runs to settlers was “to give only the exclusive right of pasturage in the runs, not the exclusive occupation of the Land, as against Natives using it for their ordinary purposes.”

The intention of the Imperial Government at Westminster reflected not only an element of humanity and common decency; it was of a piece with a policy of enlightened self-interest in seeking to ensure the peaceful expansion of British “imperium”, which could not be achieved if settlers were allowed to leave indigenous populations with no choice other than that of being “hunted into the sea” or of armed resistance.64

The Australian Constitutions Act 1842 (Imp) provided for some of the rudiments of self-government in New South Wales, but the disposition of Crown Lands in the colony, and the revenue raised thereby, were kept beyond the reach of the legislative representatives of the colonists. The disposition of the “waste lands of the Crown” remained in the executive control of the Crown.65 That position was confirmed in 1847 by Sir Alfred Stephen, the Chief Justice of New South Wales in Attorney-General v Brown.66 And the revenue raised from the disposal of the waste lands of the Crown enabled the executive government to fund the administration of government in the colonies.67

Section 30 of the 1867 Act reflected the decision by the Imperial Parliament at Westminster in s 2 of the New South Wales Constitution Act 1855 (Imp) to vest in the representative legislature in the colony both the control over the disposition of the waste lands of the Crown and the disposition of the proceeds of such dispositions.

The effect of sections 30 and 40 of the 1867 Act in Queensland was to ensure that the settlers through their representatives in the colonial legislature could fix the terms on which the waste lands of the Crown could be made available for settlement and the uses to which the revenues so raised might be put. In this way the local settlers were given exclusive power to pursue the internal development of the new colony and to fix governmental priorities in terms of the expenditure of public moneys. The vesting of these powers in the local legislature marked the real birth of Queensland as a political entity with the substantial responsibility for the peace, order and good government of the people of the colony. It also boded ill for the indigenous occupants of the colony.

The representatives of the settlers did not continue the policy of humane and enlightened self-interest towards the indigenous people of the colony which had previously been advocated by Earl Grey. It was not until the decision of the High Court in Mabo v Queensland (No 2)68 that the rights of occupation of the indigenous inhabitants were recognised.

The vesting of responsibility for land distribution in the local legislature meant that the notion of a fiduciary relationship between the Crown and indigenous peoples as a basis for a theory of native title reflected in the decision of the Supreme Court of Canada in Guerin v The Queen69 had no scope for operation in the colony. The critical significance of the circumstance that the Crown’s power to dispose of land subject to indigenous occupation within the colony was displaced in favour of the local legislature can be seen when one considers the reasons for decision in Guerin v The Queen70 by Dickson, Beetz, Chouinard and Lamer JJ. These reasons were delivered by Dickson J.

His Lordship summarised the basis for regarding the Crown as subject to a fiduciary obligation to Indian bands in the following terms:71

“… the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.

The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.

An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the Band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognized in the surrender provisions of the Indian Act. The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians.”

Their Honours said of the Royal Proclamation of 1763:72

“The Royal Proclamation of 1763 reserved ‘under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid’ (R.S.C. 1970, Appendices, p, 123, at 127).”

The terms of s 30 and s 40 of the 1867 Act stand in marked contrast to the Royal Proclamation of 1763. The majority in Guerin v The Queen recognised that the interest of the Indians “in their lands is a pre-existing right not created by Royal Proclamation” or any other executive order or legislative provision, but emphasised that “the personal and usufructuary right” of the Indians in lands traditionally occupied by them “stemmed in part from constitutional arrangements peculiar to Canada”.73

In this regard, the Indian territory had been vested by s 109 of the 1867 Constitution in the Crown in right of the Provinces subject to the interests of the Indians. Then their Honours went on to say:74

“Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown’s original purpose in declaring the Indians’ interest to be inalienable otherwise than to the Crown was to facilitate the Crown’s ability to represent the Indians in dealings with third parties. The nature of the Indians’ interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.”

The basis on which the majority concluded that the Crown owed fiduciary obligations to Indian bands makes it clear that the fiduciary obligation depended upon the direct relationship between the Crown and Indian bands as against those who might seek to acquire lands in respect of which the Indians had a traditional personal right. Their Honours said:75

“The concept of fiduciary obligation originated long ago in the notion of breach of confidence, one of the original heads of jurisdiction in Chancery. In the present appeal its relevance is based on the requirement of a ‘surrender’ before Indian land can be alienated.

The Royal Proclamation of 1763 provided that no private person could purchase from the Indians any lands that the Proclamation had reserved to them, and provided further that all purchases had to be by and in the name of the Crown, in a public assembly of the Indians held by the governor or commander-in-chief of the colony in which the lands in question lay. As Lord Watson pointed out in St. Catherine’s Milling, supra, at p. 54, this policy with respect to the sale or transfer of the Indians’ interest in land has been continuously maintained by the British Crown, by the governments of the colonies when they became responsible for the administration of Indian affairs, and, after 1867, by the federal government of Canada. Successive federal statutes, predecessors to the present Indian Act, have all provided for the general inalienability of Indian reserve land except upon surrender to the Crown, the relevant provisions is the present Act being ss. 37-41.

The purpose of this surrender requirement is clearly to interpose the Crown between the Indians and prospective purchasers or lessees of their land, so as to prevent the Indians from being exploited. This is made clear in the Royal Proclamation itself, which prefaces the provision making the Crown an intermediary with a declaration that ‘great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians ….” Through the confirmation in the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties, Parliament has conferred upon the Crown a discretion to decide for itself where the Indians’ best interests really lie. This is the effect of s. 18(1) of the Act.

This discretion on the part of the Crown, far from ousting, as the Crown contends, the jurisdiction of the courts to regulate the relationship between the Crown and the Indians, has the effect of transforming the Crown’s obligation into a fiduciary one. Professor Ernest Weinrib maintains in his article The Fiduciary Obligation (1975), 25 U.T.L.J. 1, at p. 7, that ‘the hallmark of a fiduciary relation is that the relative legal positions are such that one party is at the mercy of the other’s discretion.’ Earlier, at p. 4, he puts the point in the following way:

[Where there is a fiduciary obligation] there is a relation in which the principal’s interests can be affected by, and are therefore dependent on, the manner in which the fiduciary, uses the discretion which has been delegated to him. The fiduciary obligation is the law’s blunt tool for the control of this discretion.

… [W]here by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary’s strict standard of conduct.”

In Canada it was the power of the Crown, through the executive government, to affect native title in disposing of land to third parties which was identified by the Canadian Supreme Court as providing the conceptual basis for the existence of the fiduciary relationship between the Crown and indigenous peoples which might secure indigenous rights.76 That possibility was foreclosed in Queensland by the terms of s 30 and s 40 of the 1867 Act, and the Land Acts made pursuant thereto.

There was never any basis on which the Canadian approach could have been applied in Australia, and in Queensland in particular. It is hardly surprising that the idea that a fiduciary relationship between the Crown and the indigenous occupants of land afforded a sound basis for the recognition of native title in Queensland commended itself to only one member of the High Court in Mabo v Queensland (No 2).77

In the pursuit of the development of the colony, “new forms of land tenure” were devised by the legislature “to meet the peculiar conditions and wants of the colony”.78 Looking back from the historical vantage point of Mabo v Queensland (No 2), we can say that the representatives of the colonists of Queensland in the local legislature used the powers conferred by s 30 and s 40 of the 1867 Act to establish a legal framework for the colonial settlement and economic development of Queensland which reflected the colonists’ ambition for the development of the productive capacity of the Colony and the enhancement of the prosperity of its new settlers. This ambition they pursued through their legislature with a single-minded frontier mentality in which there was no concern for the indigenous inhabitants who were to be displaced. They acted upon the assumption that the forms of land tenure devised by them would operate according to their tenor, notwithstanding any disruption which would inevitably be caused to indigenous occupation of the land. It was an assumption which time would prove to be unfounded.79

Exemplary damages

In his 2008 Lecture, Justice Kirby criticised the New South Wales Court of Appeal which decided by majority in Harris v Digital Pulse Pty Ltd80 that exemplary damages were not available for breach of fiduciary duty. Justice Kirby commended the approach of Mason P, who dissented in that case, who saw a compelling analogy between the common law of tort and breaches of fiduciary duty and an underlying common principle which warranted the availability of punitive damages.81

With great respect to Justice Kirby and Mason P, I would suggest that there are powerful reasons for denying the availability of exemplary damages for breach of fiduciary duty. These reasons go beyond considerations of history and precedent.

In Norberg v Wynrib,82 McLachlin J (as her Ladyship then was) supported an award of exemplary damages for breach of fiduciary duty reasoning by analogy with contract and tort. In Canada, exemplary damages are available for breach of contract, and the concept of fiduciary obligation has been closely associated with tort. In Australia, it has long been settled that exemplary damages are not available for breach of contract.83 Accordingly, in Australia one cannot reason to the availability of exemplary damages via an analogy with the law of contract. And to the extent that, as we have seen, the essence of the fiduciary obligation is to act in the interests of another in consequence of the free acceptance of such an obligation, the analogy with contract is much more compelling than the analogy with tort.

And in any event, with great respect to McLachlin J, the difficulty of achieving a coherent synthesis between the rules of the law of tort, or contract for that matter, and the principles of fiduciary duty is reflected in her Ladyship’s acknowledgment in Norberg v Wynrib84 that:

“The foundation and ambit of the fiduciary obligation are conceptually distinct from the foundation and ambit of contract and tort. Sometimes the doctrines may overlap in their application, but that does not destroy their conceptual and functional uniqueness.”

The Chancery conscience is against the idea of inflicting punishment for its own sake.85 As Kirby J said in Maguire v Makaronis:86 “The purpose of equity’s relief is not punishment.” It is that antipathy which, for example, is reflected in equity’s longstanding opposition to the enforcement of penal bonds,87 and its insistence that an erring fiduciary should receive a proper allowance for his or her expenses where he or she is obliged to give an account of profits.88

That the punishment of miscreants may be good public policy is beside the point. Subject to statute, equity is not concerned with the enforcement of public policy but with the restoration of the parties to the position that should have obtained between them had the requirements of conscience been observed.

As Spigelman CJ explained in Harris v Digital Pulse Pty Ltd:89 ” Equity is concerned with the conscience of both parties” and in balancing what is just between the parties, it “is oppressive to impose burdens on a defaulting fiduciary which go beyond any benefit that he or she has received or any detriment suffered by the beneficiary” while “it is not just for a beneficiary to receive a benefit in the nature of a windfall not reflecting any detriment suffered or benefit which the beneficiary ought to have received.”

One can test the consistency of an award of exemplary damages with fundamental equitable principle by considering whether a court would enforce a contract containing an express provision for the making of a punitive payment in the case of breach. There can be no doubt that such a contractual provision would not be enforced.90 Before the passing of the Judicature Act, a court of equity would have restrained an action at law to enforce such a provision.

In his dissenting judgment in Harris v Digital Pulse Pty Ltd,91 Mason P argued in support of the view that “equity readily trumpets its punitive/deterrent intent” when it strips a miscreant fiduciary of profits. But to say this is, with respect, to mistake the purpose of equitable doctrines and the facts which engage them with their incidental effects.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd

The Supreme Court of Canada in Citadel General Assurance Co v Lloyds’ Bank Canada92 took the same line as the High Court of Australia in Farah Constructions Pty Ltd v Say-Dee Pty Ltd in insisting upon an element of dishonesty if a recipient of trust property is to be held liable for that receipt.

I propose to confine my discussion of the decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd to the criticism by Justice Kirby of the evident reluctance of the High Court to accede to the restitutionary notion that liability for the receipt of trust property should be established without the need for knowledge on the part of the recipient of the breach of trust which has led to the receipt. It is the element of knowledge which makes recipient liability fault-based. There are good reasons in terms of the fundamental values of equity why the liability should be fault-based rather than absolute.

We are concerned here with the first limb of the famous statement by Lord Selborne LC in Barnes v Addy.93 It is worth setting out what his Lordship said at some length because the passage shows the importance of the voluntary assumption of responsibility by the defendant. His Lordship said:

“Those who create a trust clothe the trustee with a legal power and control over trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees.”

Lord Nicholls of Birkenhead has said that liability based on “the mere fact of receipt” should be accepted because it recognises “the endurance of property rights”,94 but the property rights of a beneficiary of a fiduciary relationship have never been more enduring than the willingness of courts to require the fiduciary to adhere to obligations voluntarily undertaken. Lord Parker of Waddington, widely acknowledged as one of the great equity judges of the 20th Century, famously explained that equity, starting from the recognition of personal obligations in respect of property, gave remedies which had proprietary consequences.

Thus, equity’s refusal to interfere with the rights of a purchaser of property in good faith without notice and for good consideration was marking out the boundary at which a plaintiff asserting an equitable claim could not, in conscience, be allowed to assert it. This rule embodies the fundamental concern of equity, not only with the conscience of the defendant, but with ensuring conscientious dealing by all parties.

Under the first limb in Barnes v Addy, strangers to a trust are not to be made constructive trustees unless they have made themselves trustees – de son tort, as it is said. In other words, they must have deliberately intermeddled with property in a way which would be regarded as legitimate only if they had lawfully assumed the responsibilities of trustee. That was the view of Stephen J with whom Barwick CJ agreed in Consul Development Pty Ltd v DPC Estates Pty Ltd.95

In Westdeutsche Landisbank Girozentrale v Islington London Borough Council,96 Lord Browne-Wilkinson rejected the possibility that a recipient of a legal interest in property could be fixed with the obligations of a trustee for the true owner while ignorant of the acts which might offend conscience.

Similarly, in the Queensland Court of Appeal in Port of Brisbane Corporation v ANZ Securities Limited (No 2),97 McPherson JA, with whom the other members of the Court agreed, held that it would be “offensive to notions of equity and common sense to hold [a defendant] liable for a supposed breach of trust as trustee for [the plaintiff] at a time when it had never undertaken and was not aware that any such obligation existed”.98

Lord Goff of Chieveley, the doyen of restitution lawyers, recognised the strength of the view that the ethical concerns embodied in equitable doctrines may not be able to be shoehorned into the common law categories collected under the rubric of the law of restitution. In Westdeutsche Landisbank Girozentrale v Islington London Borough Council.99 Lord Goff said:

“Ever since the law of restitution began, about the middle of this century, to be studied in depth, the role of equitable proprietary claims in the law of restitution has been found to be a matter of great difficulty. The legitimate ambition of restitution lawyers has been to establish a coherent law of restitution, founded upon the principle of unjust enrichment; and since certain equitable institutions, notably the constructive trust and the resulting trust, have been perceived to have the function of reversing unjust enrichment, they have sought to embrace those institutions within the law of restitution, if necessary moulding them to make them fit for that purpose. Equity lawyers, on the other hand, have displayed anxiety that in this process the equitable principles underlying these institutions may become illegitimately distorted; and though equity lawyers in this country are nowadays much more sympathetic than they have been in the past towards the need to develop a coherent law of restitution, and to identify the proper role of the trust within that rubric of the law, they remain concerned that the trust concept should not be distorted, and also that the practical consequences of its imposition should be fully appreciated. There is therefore some tension between the aims and perceptions of these two groups of lawyers, which has manifested itself in relation to the matters under consideration in the present case.”

As Lionel Smith said in his article “Unjust Enrichment, Property, and the Structure of Trusts”:100

“The strict liability approach would contemplate that a plaintiff need only allege that a bank received trust property, not that the bank knew or should have known of the trust; with no more than that, the bank would be required to prove its good faith as a defence or to account for what it has done with this money. In other words, there is no procedure which a bank, be it ever so honest, can adopt in order to ensure that it is not prima facie liable for the receipt of trust funds. Prima facie liability implies potentially extended periods of expense and uncertainty when litigation is pending; and of course it throws on the defendant the risk that even though the elements of some defence are present, they cannot be proved to the satisfaction of the trier of fact. Although there may be no difference in the classroom between fault-based liability and strict-liability with defences, there is a great difference in the courtroom.”

Third parties who deal with fiduciaries deal with persons with the indicia of title to the asset in question, e.g. possession or control or registration. It is for the very reason that the equitable rights of the beneficiary in respect of the property are not apparent to third parties that equity accords protection to the bona fide purchaser for value against the claims of the beneficiary. A watering down of that protection will not come without cost.

In 1999 in Barclays Bank plc v Boulter,101 the House of Lords held that it would be unreasonable to adopt a rule which would require banks to establish a defence in every case where a third party exercised undue influence on the bank’s customer. Such an outcome is undesirable as a matter of policy: a rule which produced such a result would be described in economic terms as inefficient.

Much earlier, in Manchester Trust v Furness,102 Lindley LJ said:

“… as regards the extension of the equitable doctrines of constructive notice to commercial transactions, the Courts have always set their faces resolutely against it. The equitable doctrines of constructive notice are common enough in dealing with land and estates, with which the Court is familiar; but there have been repeated protests against the introduction into commercial transactions of anything like an extension of those doctrines, and the protest is founded on perfect good sense. In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of constructive notice to commercial transactions we should be doing infinite mischief and paralyzing the trade of the country.”

Moreover, to accept that an internal misapplication of company funds by the company’s directors could result in a co-ordinate liability in the company’s bank where the bank had no notice at all of the misapplication would be to delete the internal management rule from our company law.103

Of course, if a recipient still retained the funds when it received notice of the breach of fiduciary duty, it would be obliged to disgorge them, but that would be because it was a recipient of trust property with actual notice of the claim of the true owner.

The objection is not founded merely on economic or pragmatic considerations. It is contrary to equity’s sense of social responsibility to allow a remedy to a plaintiff who has chosen to deal with strangers through an agent against a stranger who has acted honestly without notice of the agent’s breach of trust. If a third party deals honestly with an errant fiduciary that third party should not find itself fixed with a liability co-ordinate with that of the defaulting fiduciary to the injured beneficiary: the third party has never accepted the obligation of self-denial to fiduciary or beneficiary.

Furthermore, within the category of unjust enrichment, the liability to disgorge the amount received is measured not by the defendant’s promise – as is the case with breach of contract; nor by the extent of the plaintiff’s injury – as is the case with tort; but by the extent of the defendant’s unjust enrichment at the expense of the plaintiff. The pursuit of the unearned windfall cannot be squared with the requirements of conscience so far as the plaintiff is concerned.

Conclusion

In relation to the specific problems of fiduciary obligations and exemplary damages, the Australian courts have shown a more faithful regard for the fundamental principles of equity than our Canadian counterparts.

The ethical values of individual restraint, mutuality and social responsibility at play within the framework bequeathed by Chancery differ from the individualism and the universalism of the common law. To regard equitable doctrines as modular, so that they may be mixed and matched with common law rules so as to expand the scope of the judicial branch of government’s regulation of self-interested action is to fail to appreciate these differences.

It may also be said, in terms of the Big Picture, that it is a troubling feature of the unifying tendency that it seems to work only one way. There is a marked absence of examples of liabilities being avoided by the fusion of law and equity.104 The proper development of the law does not mean an inevitable broadening and intensification of judicial intervention in the commercial life of the community. A question-mark must hang over any idea of an evolution which involves an ineluctable expansion in the liabilities imposed by the courts upon honest citizens.

Is it necessarily a good thing that arm’s length transactions in the commercial life of the community should be subject to regulation in accordance with standards of behaviour devised for the regulation of relationships of trust and confidence which are distinctly not arm’s length relationships? Is such a development a sound expression of the values of modern commercial life? Equity never set out to bring to heel what John Maynard Keynes described as “the uncontrollable and disobedient psychology of the business world”.

Today’s law students may well take a different view. They may, as judges or legislators, ultimately usher in the millennium which Justice Kirby envisages; and that may or may not be a good thing. But no-one should labour under the misapprehension that it will have much to do with the fundamental values and principles of equity.

* This article was first published by Thomson Reuters in the THE AUSTRALIAN LAW JOURNAL, P A Keane, THE 2009 W A LEE LECTURE IN EQUITY: THE CONSCIENCE OF EQUITY, February 2010, Volume 84, No 2.

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Andrew Burrows, “We Do This At Common Law But That In Equity” (2002) 22 Oxford Journal of Legal Studies 1.
(1996) 186 CLR 71.
(2007) 230 CLR 89 at 144 – 159 [120] – [158].
[1997] 3 SCR 805.
WS Holdsworth, A History of English Law: Vol IV, 276 – 283.
Harold J. Berman, “The Christian Sources of General Contract Law” in John Witte, Jr. and Frank S. Alexander (eds), Christianity and Law: An Introduction (2009) 133 – 134.
WS Holdsworth, A History of English Law: Vol IV, 410 – 411.
A case discussed in Bracton’s Note Book for the year 1224 involved one Robert who, before going to the Holy Land, committed land he held to his brother Wydo ad opus puerorum suorum, i.e. to the use of his sons. From this, and other notes like it, we get a sense, both of the historical reasons for the development of such an institution, and for the heavy burdens which trusteeship cast upon a trustee.
The efforts of the clergy who staffed the Chancery in the development of the trust as a device for separating legal ownership of and from its beneficial ownership were not entirely disinterested: the device of the trust also allowed mendicant orders, such as the Franciscans, to hold the benefit of land consistently with the vows of poverty taken by individual members of the order. The idea that moral rectitude and legality of conduct were not necessarily co-extensive was very familiar to those responsible for the foundations of equity. In the 13th Century, William of Occam, the English Franciscan (who invented the famous razor), spent much intellectual energy and ink defending the poverty of the Franciscans against Pope John XXII. In his Opus nonaginta dierum (William of Ockham, Opus Nonaginta Dierum in JG Sikes and HS Offler (eds), Opera Politica II (1963) 375 – 858), William argued that conduct could be morally right without having any place within the systems of legal justice. An act could be regarded as just in a moral sense, but neither just nor unjust in a legal sense. Moral justice and legal right were quite separate concepts. This distinction reflects a clear appreciation of the distinctions between natural and positive ideas of justice and between the Chancery and the common law, between private conscience and public policy.
WS Holdsworth, A History of English Law: Vol IV, 279.
Austin W. Scott, Jr, Scott on Trusts: Vol I (3rd ed, 1967) 7 – 21.
WS Holdsworth, A History of English Law: Vol IV, 279.
WS Holdsworth, A History of English Law: Vol IV, 276.
WS Holdsworth, A History of English Law: Vol IV, 276.
Harold J. Berman, “The Christian Sources of General Contract Law” in John Witte, Jr. and Frank S. Alexander (eds), Christianity and Law: An Introduction (2009) 133.
Peter Birks, “Equity, Conscience, and Unjust Enrichment” (1999) 23 Melbourne University Law Review 1 at 22.
Bridgewater v Leahy (1998) 194 CLR 457 at 494 [125].
(1853) 1 De G & Sm 164; 63 ER 1016 at 1023. See also Bromley v Holland (1800) 5 Vis Jun 610; 31 ER 766 at 769 – 770.
Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 at 452. See also Hanson v Keating (1844) 4 Hare 1; 67 ER 537; Jervis v Berridge (1873) LR 8 Ch App 351 at 358; Lodge v National Union Investment Co Ltd [1907] 1 Ch 300; Langman v Handover (1929) 43 CLR 334 at 345, 356.
(1958) 101 CLR 428 at 452 – 456.
Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428 at 454.
Cf Bridgewater v Leahy (1998) 194 CLR 457 at 494 [125].
(1929) 43 CLR 334 at 353 – 354.
(1929) 43 CLR 334 at 353 – 354 (citations footnoted in original).
Visscher v Giudice (2009) 258 ALR 651 at [54].
(1990) 170 CLR 394 at 441.
I am indebted to the discussion of this problem by Mr J D McKenna SC of the Queensland Bar: John McKenna SC, “Remedies in Estoppel” in Aladin Rahemtula (ed), Justice According to Law: A Festchrift for the Honourable Mr Justice BH McPherson CBE (2006) 167 esp at 195–201.
Peter Birks, “Equity, Conscience, and Unjust Enrichment” (1999) 23 Melbourne University Law Review 1 esp at 20 – 21.
Cf Elders Pastoral Ltd v Bank of New Zealand [1989] 2 NZLR 180 at 185 – 186; Soulos v Korkontzilas [1997] 2 SCR 217 at [26] – [35].
[1997] 2 SCR 217 at [35].
John Norton Pomeroy and Spencer W. Symons (ed), A Treatise on Equity Jurisprudence, Vol I (5th ed, 1941) 94 [57].
Perre v Apand Pty Ltd (1999) 198 CLR 180 at 299.
Perre v Apand Pty Ltd (1999) 198 CLR 180 at 229.
Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd (In Liq) [2002] ATPR 41-864, 44,800.
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666; Mackay v Dick (1881) 6 App Cas 251 at 263; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607.
(1726) Cas temp King 61; (1726) 25 ER 223.
[1967] 2 AC 134N.
[1967] 2 AC 46 esp at 109.
[1932] AC 562 at 580.
Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384 at 409; New Zealand Netherlands Society “Oranje” Inc v Kuys [1973] 1 WLR 1126 at 1129 – 1130; In re Goldcorp Exchange Ltd [1995] 1 AC 74 at 98.
Some in the USA assert (Jordan v Duff and Phelps Inc, 815 F 2d 429 (7th Cir, 1987), cert dismissed 485 US 901 (1988)) that fiduciary obligations subsist between majority and minority shareholders in a company. This view leads to results which are distinctly counter-intuitive. In these cases the majority shareholders have acquired valuable rights of property, usually at considerable expense to themselves, in accordance with the terms of the constitution of the corporation. The minority shareholders acquired their shares on the same footing. The members of the majority and minority as shareholders act in their own interests as such at arm’s length from each other. In their contest for the bigger slice of the corporate pie, the act is in reliance, not upon mutual trust and confidence, but upon the rights conferred by the constitution of the corporation. It is the corporate constitution which establishes the rights which each shareholder acquires as such, e.g. in relation to voting in meetings of the corporations. To impose on the majority an obligation to act in the interests of the minority and contrary to their own interests is, as a matter of commerce, absurd. Conscience does not require this level of self-sacrifice. If a minority shareholder can oblige a majority shareholder to act as such in the interests of the minority shareholder, the value of the investment involved in becoming a majority shareholder would be diluted. Asserting one’s privileged position under the corporate constitution is not against conscience because no-one could have expected that one was disposed to sacrifice the benefits that one has paid for in the interests of someone else who has not paid for those benefits but who, on the contrary, looms as a rival for control of the company. It will be understood, of course, that I am not here talking about the exercise of powers by directors: they are, of course, under fiduciary obligations to consult only the interests of the company in the exercise of their powers. But shareholders are not. The corporate constitution may limit the scope for selfish conduct by shareholders, but these contractual limitations are imposed by contract as a necessary reflection of the fundamental understanding of all involved that each shareholder can fairly be expected to exercise his or her rights as such exclusively for his or her own benefit.
[1989] 2 SCR 574 at [24].
Cf Soulos v Korkontzilas [1997] 2 SCR 217 at [26] – [44].
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605 – 606.
(1996) 186 CLR 71.
[1992] 2 SCR 138 esp at 150.
[1992] 2 SCR 138.
[1992] 2 SCR 138 at [20].
Cf Emmett v Eastern Dispensary and Casualty Hospital, 396 F 2d 931 (DC Cir, 1967); Cannell v Medical and Surgical Clinic, 315 NE 2d 278 (Ill, 1974).
[1992] 2 SCR 138 at 148 – 149.
[1992] 2 SCR 138 at 150.
[1992] 2 SCR 138 at [22].
[1992] 2 SCR 138 at [36].
[1992] 2 SCR 138 at [39].
[1992] 2 SCR 138 at [14], [38].
Cf W v Egdell [1990] Ch 359 at 389, 415, 419; Breen v Williams (1996) 186 CLR 71 at 111.
Cf Sidaway v Board of Governors of Bethlem Royal Hospital & Maudsley Hospital Board [1985] AC 871 at 904.
[1967] 2 AC 46 at 127.
(1984) 156 CLR 414 at 438.
[1994] 3 SCR 377 at 406.
[1992] 2 SCR 138.
Cf Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; Schreuder v Murray (No 2) [2009] WASCA 145.
Section 30 provided relevantly: “… it shall be lawful for the Legislature of this colony to make laws for regulating the sale letting disposal and occupation of the waste lands of the Crown within the said colony.” As to the meaning of the phrase “waste lands of the Crown”, see Attorney-General for New South Wales v Williams [1915] AC 573. Section 40 provided relevantly: “The entire management and control of the waste lands belonging to the Crown in the said Colony of Queensland and also the appropriation of the gross proceeds of the sales of such lands and all other proceeds and revenues of the same from whatever source arising within the said colony including all royalties mines and minerals shall be vested in the Legislature of the said colony.”
Cf “Annual Report of the Northern Protector of Aboriginals for 1900” in Queensland Votes and Proceedings: Vol 4 (1901) 1329 – 1337.
Enid Campbell, “Crown Land Grants: Form and Validity” (1966) 40 Australian Law Journal 35.
(1847) 2 SCR (NSW) App 30.
In re Natural Resources (Saskatchewan) [1932] AC 28 at 38; Wik Peoples v Queensland (1996) 187 CLR 1 at 172 – 173.
(1992) 175 CLR 1.
[1984] 2 SCR 335 at 376.
[1984] 2 SCR 335 at 375 – 388.
[1984] 2 SCR 335 at 376.
[1984] 2 SCR 335 at 377.
[1984] 2 SCR 335 at 379 – 380.
[1984] 2 SCR 335 at 382.
[1984] 2 SCR 335 at 383 – 384.
Mabo v Queensland (No 2) (1992) 175 CLR 1 at 202 – 203.
(1992) 175 CLR 1.
AC Millard and GW Millard, The Law of Real Property in New South Wales (1905) 5 – 6; cf TP Fry, Freehold and Leasehold Tenancies of Queensland Land (1946) 29.
Mabo v Queensland (No 2) (1992) 175 CLR 1.
(2003) 56 NSWLR 298.
(2003) 56 NSWLR 298 at 335 – 336 [195].
[1992] 2 SCR 226 at 298.
Butler v Fairclough (1917) 23 CLR 78 at 89; Whitfield v De Lauret and Co Ltd (1920) 29 CLR 71 at 81; Gray v Motor Accident Commission (1998) 196 CLR 1 at 6 – 7.
[1992] 2 SCR 226 at 272.
Vyse v Foster (1872) LR 8 Ch App 309 at 333; Spence v Crawford [1939] 3 All ER 271 at 289; Palmer v Monk (1961) 80 WN (NSW) 107 at 110; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 109 – 110; Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 56.
(1997) 188 CLR 449 at 496.
Bridge v Campbell Discount Co Ltd [1962] AC 600 at 632.
Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 at 111, 114, 115, 123; Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557 – 562.
(2003) 56 NSWLR 298 at 311 – 312 [52] – [61].
Cf Jobson v Johnson [1989] 1 WLR 1026 at 1040.
(2003) 56 NSWLR 298 at 330 – 333 [160] – [178].
[1997] 3 SCR 805.
(1874) LR 9 Ch App 244 at 251 – 252.
Lord Nicholls of Birkenhead, “Knowing Receipt: The Need for a New Landmark” in William Cornish, Richard Nolan, Janet O’Sullivan, and Graham Virgo (eds), Restitution, Past, Present and Future: Essays in Honour of Gareth Jones (1998) 238.
(1975) 132 CLR 373 at 408.
[1996] AC 669 at 705.
[2003] 2 Qd R 661 at 679.
This view involved a departure from the approach of the New South Wales Court of Appeal in the earlier case of State Bank of New South Wales Ltd v Swiss Bank Corporation ((1995) 39 NSWLR 350) where it was held that a recipient of property who could reasonably have undertaken enquiries to establish the true beneficial ownership of the property but did not, was held liable to make good the plaintiff’s loss. McPherson JA ([2003] 2 Qd R 661 at 674 – 675) relied upon the view expressed by Sir Frederick Jordan CJ in Oxley v James ((1938) 38 SR(NSW) 362 at 375) that “in commercial transactions … means of knowledge are not actual knowledge”. On this view, so long as a recipient acts in good faith and does not wilfully shut his or her eyes to matters which will reveal actual fraud or impropriety, there can be no liability to the beneficial owner in equity or in restitution.
[1996] AC 669 at 685.
(2000) 116 Law Quarterly Review 412 at 434.
[1999] 1 WLR 1919 at 1925.
[1895] 2 QB 539 at 545.
Cf BCCI (Overseas) Ltd v Akindele [2001] Ch 437 at 455 – 456.
Cf Soulos v Korkontzilas [1997] 2 SCR 217 at [26] – [45].

The following is the Keynote address from the Honourable Patrick Keane AC KC at the Bar Association of Queensland Annual Conference on 3 March 2023.

Colleagues,

Human beings derive enormous satisfaction from solving problems. If it may be said that it is the exercise of our capacity to solve the problems that life on our planet throws up that has defined us as a species, then the satisfaction we derive from solving problems is integral to our evolutionary success. It is just as well that we enjoy problem solving so much, because we are the only species that actively goes out and creates problems that we then have to solve. And the most difficult problems that we create are with each other.

Except for the use of force, as in war, or other forms of organised violence, there is no exercise of problem-solving on a societal scale that is more demanding or rigorous or intense than litigation. Solving problems peacefully, honestly and reasonably is what our profession does. And that is hard on us. To help peacefully to solve the problems that beset our fellow citizens is also great privilege. It is a privilege that is jealously guarded. Our community takes care to ensure is exercised only by those who can be trusted not to abuse it. And so we have been organised within our legal tradition over the last thousand years into the profession of the Bar, a profession that in our tradition, encompasses the judiciary which is also an organ of the State.

I have had the privilege of participating in the problem-solving work of our profession now for the best part of fifty years. I am honoured to have been asked to open your conference this year by saying something about the changes I have observed in the work of our profession over that time.

It is, I think, worth taking a moment at the beginning of our conference first to celebrate some of the respects in which our profession finds itself working within a more just society than it was fifty years ago, and then to say something about the challenges to our profession that have emerged, and to suggest that the need to meet those challenges has not changed the essential things that make the work of the advocate worthwhile.

“The arc of the moral universe is long, but it bends towards justice”

To start the conference on an upbeat, I want to mention some of the profound societal changes that affect us as lawyers and citizens and that have been overwhelmingly for the good. It is only right and proper that we should remind ourselves that cynicism about the possibility of improving the quality of justice is quite misplaced. Things can, and do, get better. And this should give us heart. As Martin Luther King Jr., an upbeat guy if ever there was one, famously said: “The arc of the moral universe is long, but it bends towards justice”[1]. There are a number of respects in which that great insight has been vindicated in this country over the last half‑century particularly with a focus on our justice system.

We are undoubtedly a fairer, and happier society and profession than we were in the mid‑20th Century when there were no women judges, no non‑Anglo‑Celtic judges, and very, very few women lawyers, or non‑white lawyers.

In the 1970’s, so far as the Queensland judiciary were concerned, it is most unlikely that the idea that diversity might be a good thing occurred to anybody. If it occurred to anybody at all, began and ended with the tacit understanding that one in four Supreme Court judges should be a Catholic. This understanding, observed without controversy was the legacy of the Irish‑Catholic domination of the Labor Party governments that held office in Queensland from 1915 to 1957, with the exception of the three years of the Moore Liberal government at the beginning of the 1930s. During those years, Irish Catholics constituted about a quarter of the State’s population. No one would even have thought about this protocol since 1980. But when we debate today the need for greater diversity on the Bench, and people make the strong points that the courts are not representative institutions and that the legitimacy of the courts derives from the legal expertise and other qualities of those appointed to the role, it may also be said with equal force, at least in historical terms, that it has been recognised that it socially desirable that the courts before whom the citizenry are judged should look like the citizenry. In that way, we reduce the risk that the judiciary may be perceived, as it probably was for much of the 19th Century by most of Queensland’s white settlers, as the enforcement arm of the ruling class and, from the point of view of indigenous Queenslanders, as that of an occupying power. However that debate stands at the current time, there can be no doubt that our courts are much more diverse than was the case for most of the 20th Century and that this is a good thing.

The angry old men who seemed to dominate the Bench in my first decade at the Bar have been replaced almost entirely by more temperate souls. In my first couple of decades at the bar, magistrates and judges were all men and white – many were older than their years, and some of them seemed to be always angry about things that could only be guessed at, that only rarely had much to do with competence, or lack thereof, of the lawyers appearing before them. They presided over their courts with a brutality that called to mind Churchill’s description of the Royal Navy in the time of Nelson as a place of “rum, sodomy and the lash”.

Many of the senior barristers I knew dreaded the phone call from the Attorney‑General offering them a judicial appointment.

I should be clear that I am not suggesting that all of the judges of those times exhibited these behaviours – it just seemed that way. That was because the unpleasant ones even though there were only a tiny handful of them, made life for lawyers so very unpleasant. Unfortunately, these unpleasant judges set the general mood, even though the vast majority of judges were thoroughly decent men and a pleasure to appear before. One consequence of this unpleasantness was that no barrister wanted to risk being like them; which meant that few of us actually wanted to be a judge if being a judge could make one so unhappy. Many of the senior barristers I knew dreaded the phone call from the Attorney‑General offering them a judicial appointment; and that reluctance was not just about money and the voluntary choice of a life of genteel poverty.

To put that unpleasantness into a broader perspective, it should be said that the business of conflict resolution is inherently very stressful. Litigation, is simply awful for those engaged in it as litigants. In an address to the Association of the Bar of the City of New York in 1921, Judge Learned Hand said: “After now some dozen years of experience, I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death”[2]. That great judge was speaking at a time when it was a momentous, and rare, thing to haul one’s fellow citizen into court. At that time, litigation was generally regarded as something to be dreaded, and it was rare for law‑abiding citizens to have anything to do with the courts. Now, it is not uncommon to see someone hauled into the courtroom for having made an allegedly defamatory statement on their Instagram story[3]. And our rights conscious fellow citizens demand access to justice I will say something more about that later.

While litigation is usually most stressful for those who are the parties to the conflict, it is also very stressful for those individuals who are tasked with resolving the conflicts. In most situations of social conflict, at least one of the parties is being unreasonable; often both are. Reconciliation of their positions may sometimes seem to the judge to be something beyond human wisdom, and the frustration engendered by that perception is not rendered any more bearable when the parties or their lawyers seem unable to take a hint as to the likely outcome of the contest.

Now, we all agree that bullying behaviour is simply unacceptable, even when it is a symptom of an understandable desire for greater efficiency, or even a cry of pain from a fundamentally decent soul in torment. There can be little doubt that the change in the atmosphere in our courtrooms is due in no small part to the greater diversity of our judges. But having said that, we should, I think, also acknowledge that there was a serious and important reason for some of the anger of the old male judges apart from problems of testosterone, ill‑health and poor diet. That reason is endemic to the courts as the community’s principal conflict resolution mechanism.

So in defence of the angry old male judges I have spoken about, it is fair to say that they were, in their own mid‑20th Century way, howling at human folly and unreasonableness. They were giving voice, albeit in a most unhelpful way, to an understandable human reaction to the difficult, sometimes excessive, demands placed upon the peacemaker by their unreasonable fellow citizens. But we now recognise that judicial strategies for coping with the stresses involved in the role of peacemaker must not include sharing our pain with the people we are trying to help.

And, I am very much of the view that things have got better. Although not everyone thinks so. In 2018, the Age newspaper reported that more than 856 respondents to a survey of the Victorian Bar Association’s members in relation to health and safety claimed to have been bullied by a judge or magistrate in a courtroom. The survey concluded that judicial bullying was the biggest issue of concern when barristers were asked to detail how their working life could be improved – outranking even the timely payment of fees. Two-thirds of the female barristers who responded to the survey reported that they had been bullied from the Bench, while 58 per cent of their male counterparts claimed that they had also been subjected to demeaning or humiliating remarks. The most common form of bullying was said to be “grossly discourteous and disrespectful behaviour from the Bench.” – rudeness, sarcasm and shouting.

Now I have to say that I wonder whether the results of this survey reflect cultural issues peculiar to Victoria, and Victoria is peculiar. While no one should play down the problem of bullying in any professional context, we need to keep things in perspective, and to recognise that instances of judicial bullying, the judicial bully does not any longer set the prevailing mood.

On International Women’s Day in 2019, Baroness Hale of Richmond gave an interview to The Times of London in which her Ladyship said:

“My impression is that judges are now a great deal more courteous and patient and respectful of everybody in front of them, both lawyers and litigants, than when I was at the Bar.”

I have to say that Lady Hale’s view is very much my own. Her Ladyship went on to say:

“Being an advocate requires considerable courage. You’ve got to stand up t the court, to your opponents, your clients – and it requires courage to overcome the inevitable stage fright of appearing in court.”

I agree with Lady Hale about that as well. The need for advocates to be courageous is something that is no less essential today than it was 50 years ago – or, for that matter, 500 years ago. Stage fright or lack of preparation, an absence of judicial sympathy for your plight, and the rigorous expression of righteous frustration with your performance has never been, and should not be, mistaken for judicial bullying.

We are also undoubtedly a happier and freer and more compassionate profession (and society) than we were when I first began my time as an articled clerk. Then, in Queensland, gay people were treated as criminals and were persecuted by the police with social licence to do so. The courts were slower to see the grave injustice in this than was society at large. That was the case both here, and in the United States.

We are also undoubtedly a happier and freer and more compassionate profession (and society) than we were when I first began my time as an articled clerk.

In 1986, the Supreme Court of the United Statesdecided in Bowers v Hardwick[4], by a 5-4 majority, that a Georgia statute that made sodomy a crime was not unconstitutional. One of the majority justices was Lewis Powell. In a conference with his fellow Justices about the case, he remarked that he had never met a homosexual. Justice Harry Blackman said in response: “Look around your chambers”. And, of course, one of Justice Powell’s then clerks was gay, as were several of the young men who had previously worked for him.

One of those clerks was Mr Paul Smith who, in 2003, argued and won the landmark case of Lawrence v Texas[5] which over‑ruled Bowers v Hardwick. And in January 2013, Mr Paul Smith stood before Chief Justice Roberts and applied, successfully, for the admission to the Bar of the Supreme Court of the United States of about 30 members of the National LGBT Bar Association. The lawyers stood, and the Chief Justice gave his customary cordial welcome to new members of the Supreme Court Bar.

I mention this episode not simply to give us all a feel‑good moment, and to make the point that we have all come a long way from a time of what was, in retrospect, an irrational and terrible repression. I want to make the additional point that it is something worth celebrating that we, in Australia, did not need a Supreme Court to overturn as unconstitutional a statute made by the people in order to remedy social injustice. Holding that a statute is invalid because it is unconstitutional is not something to be done lightly. It is, after all, the negation of the will of the people expressed through their elected representatives.

When now we contemplate the overturning of Roe v Wade[6], and the implications of the US Supreme Court’s reasons for doing so in relation to the other rights based on constitutional notions of privacy, it throws into sharp relief the fragile basis of those rights founded as they are on the philosophical outlook of a handful of judges. When one considers the decisions of the Supreme Court that “solve” broadly political problems, one may be inspired or depressed by the outcomes, depending on one’s political outlook. But whatever one’s views about the outcomes in these decisions, one cannot help noticing from an Australian perspective, that in these momentous cases, the outcome was not one which we would expect to be the product of a judicial decision rather than a decision of the representative branches of government. The American dependence on the courts has contributed to the evident infantilisation of American politics at the federal level, and, in turn, to the more intensive politicisation of the Supreme Court itself.

Again and again over the last 50 years I have been reassured of the vibrancy of Australian democracy where issues of great controversy ‑ such as marriage equality ‑ have been decided by our people rather than by the courts. The contrast with the United States ‑ our cultural lodestar in so many respects ‑ is remarkable and comforting. Representative politics in that nation is so sclerotic, and has been in this state for so long, that issues that divide political parties are now routinely resolved by the Supreme Court because the political process is incapable of resolving them, marriage equality again being the most obvious example. Abortion law is another: the Supreme Court had to discover in the silences of the Constitution a right to abortion, the limits of which it has struggled subsequently define. Here, our Parliaments chosen by the people have addressed the problem on the basis of a broad social consensus expressed in the representative institutions of our democracy.

In the Washington Post, former Justice John Paul Stevens, speaking of his experience on the Supreme Court, said: “It happens so often that you have to get used to losing”. Even America’s highest judges seem naturally to think in terms of winning or losing. In contrast, in Australia, judges do not have to get used to losing. It is still, I think, a universally accepted tenet of our professional ethos as judges that there is nothing in the contest for us to lose. We are not seeking to achieve any political agenda: we are not appointed with that in mind; and that is certainly not how we see our role.

In Australia, we have not yet accepted that the work of our courts is simply politics by another means. The approach of the Australian judiciary has been at once more modest in its view of the role of the judiciary as the provider of solutions to society’s problems, and more respectful of the democratic values implicit in the notion of “the people” than that of our US counterparts.

In the United States, issues about judicial appointments divide political parties and the nation. There, the political branches of government, already seriously weakened by deep divisions of interests and values, have been further drained of vigour and resolution by an environment which both holds them captive and polarises their constituencies even more deeply in a way that has not yet blighted our public life. We need to avoid a judicial slide into political partisanship. CNN’s exit polling at the 2016 US Presidential election disclosed that, for the 56% of those who voted for the Republican candidate, Supreme Court appointments were the most important factor in their vote, with only 37% saying that this issue was not important to them at all[7]. The Republican candidate at that election well understood the state of affairs reflected in these figures. Indeed, his appreciation of the point was a major part of his political strategy. He told a rally in July 2016 that even if conservative voters didn’t like him, they would have to vote for him anyway. “You know why?” he asked: “Supreme Court Judges”, he answered[8]. And in this regard, as President, he proved as good as his word, appointing Supreme and Federal Court judges to resounding applause from his political base.

An area of our national life that we cannot celebrate concerns reconciliation with Australia’s indigenous people. This issue has not been resolved by the courts, and ultimately it cannot be. Mabo[9], the great landmark that it was, did not even begin to address the problems of historical dispossession of indigenous Australians from their traditional lands where dispossession was total, Mabo offered no remedy. What is better now than 40 years ago is that there is a broad societal awareness that we need reconciliation with Indigenous Australians, and our good and decent people are going about just that in their democratic way.

Technology

All the societal changes I have spoken about are important; but for us as lawyers and citizens of Australia and the world, the most significant change over the last 30 years has been in relation to the extent and intensity of our social interaction with each other through technological advances. The extent to which we are now so closely and intensely associated by technology means that the lives we are now living are like nothing in previous human experience. The closest analogy I can think of from the past is with the lives of the citizens of small ancient cities, like the Athens of Socrates, villages in which every citizen knew the business of every other citizen. And subject to intervention by authoritarian states such as China and Russia, this new global village does not respect national borders. In this ecosystem, the opportunity for privacy – the right just to be left alone – is rapidly disappearing.

The technological advances that began in the 20th Century have aggravated, rather than mitigated, the problem of distinguishing between the public and the private aspects of our lives. In earlier and simpler times, people knew that they were crossing the line between the private and the public when they entered the agora or the forum or the town hall, or even when they appeared on television, to engage in debate. The physical fact of the public location of the activity both marked the activity as a matter of public concern and helps to ensure a minimum level of civility.

The coming of the digital age has, in large part, erased the gentling effect of physical prompts to civility. Civility is an indispensable virtue of democracy. It is the virtue that helps us to accept the unsatisfactory possibility that we may not be right about an issue, and that those who think differently may nevertheless be decent and honourable, and not to be despised.

Civility is an indispensable virtue of democracy.

Online communication, for all its intensity and ubiquity, is an isolated and isolating activity conducted without the ordinary social constraints provided by the physical presence of another human being and the possibility of provoking an uncivil reaction. The Information Revolution has largely removed these physical markers. Without these physical cues, there is a need to articulate a stable theoretical basis for drawing that crucial boundary between the private and the public. This need becomes at once more imperative and yet more difficult.

The problems that technological change will continue to create, combined with the concomitant wholesale and willing abandonment of privacy as a bedrock societal value, mean that the development of solutions to those problems will be the great challenge for your generation and the next. We cannot even say that we know what those changes will be, not with any certainty. Only one thing is certain. You will not be able to hide from the problem. You will not be able, for example, to emulate Justice Louis Brandeis of the Supreme Court who reacted to the introduction of the telephone at the beginning of the 20th Century by refusing to have one in his home and refusing to use the one that was installed in his chambers.

Changes in Workload

Substantial changes have been taking place in the nature of the work coming before courts in Australasia, with our courts being called upon more and more to regulate the exercise of power, whether by the State or by our fellow citizens over each other, to an extent that would have been unthinkable when I began my career in the law. Changes in the workload of the courts reflect the broad tide of cultural change that is itself reflected in the changing expectations held by our fellow citizens of what the courts can, and should, do for them. On the civil side, the litigation that we oversee reflects the demands of a diverse, prosperous and rights‑conscious people who are determined to have their own way and to enlist the power of the State to do so.

The great change since the 1960s has been the rise of “access to justice” as a mantra of public policy. Litigation is now widely regarded as a good thing – even something to be encouraged as a matter of public policy – as class actions provide a mechanism for the enforcement of consumer protection laws where the executive government is not sufficiently resourced to do so.

In one sense, it may be said to be a credit to the judicial institutions which we serve that the community has simply assumed that all kinds of social questions are amenable to solution by the courts. The open-ness and fairness and reasonableness of our courts make them attractive places for our fellow citizen to press their claims on each other.

And so the judicial branch of government, and our profession, is busier than ever before in areas of social concern with which we did not previously grapple as an institution of government.

Domestic Violence

For reasons at which we, as lawyers, can only guess, issues of domestic violence and the sexual abuse of children are now among the major calls upon the time and resources of our courts. Great challenges have been presented to this generation of lawyers and judges by the revelation of the extent of these problems in institutions, but more often within the family. The courts are at the front line of these challenges. During most of the time that I was at the Bar, these problems were largely invisible. Domestic violence was ignored, not just by the police and the courts, but by society at large: no one wanted to be involved in a “domestic”.

The instinctive reaction in all liberal democracies in which these problems have come to light has been to bring the power of the State to bear upon perpetrators through the machinery of the criminal law. Whether the criminal law is the instrument of State power best equipped to effect that solution has not seriously been debated. But whatever instrument were to be chosen to address the issue, it is inconceivable that the courts would not have some supervisory role. The fact is, however, that the courts have become the front line where our communities seek to resolve these issues.

When I began my time in the law, the problems of domestic violence and the sexual abuse of children were kept secret and out of the courts by the intimidation practised by the perpetrators and the sense of helplessness of their victims. While the very power imbalance between perpetrator and victim that allowed these crimes to be committed in the first place also helped to keep the crimes private, it must be acknowledged that a significant contribution to shielding perpetrators of these crimes from the criminal law was also made by rules devised by ancient authorities, like Sir Matthew Hale, regarded as the great sages of the common law, such as the need for corroboration of a female or child complainant.

For a long time, these long established rules seriously impeded the prosecution of offenders in cases where complainants were willing to come forward. These rules were rigorously enforced by the courts for a significant part of my professional life, in deference to the long‑standing scepticism of the great sages of the common law about the reliability of the evidence of complainants in cases of sexual assault.

Legislatures lost patience, both with judicial scepticism about complainants in sex cases, and with the assumption that judges are possessed of a wisdom about where the truth might lie in such cases that surpasses the understanding of everyone else. And that was fair enough. Why would one think that people in the privileged position of judges, who have, almost axiomatically, enjoyed privileged and nurturing upbringings, know more about the dark horrors of intra‑family child abuse, than everyone else? It certainly is not because we had any professional training in these matters. And to the extent that these assumptions were characteristically made by appellate courts, rather than by judges at the coal face, those assumptions were not grounded in practical experience.

We can now, I think, accept that the difficulty of the courts, especially the appellate courts, in letting go of the assumptions that we inherited from those we venerated as the great sages of the common law, as to the inherent mendacity of women and children and as to the superiority of judicial wisdom about these aspects of human behaviour, have not been our superior courts’ finest moments. With the benefit of hindsight, the Royal Commission into Institutional Responses to Child Sexual Abuse, and the numerous taskforces and working groups of domestic and family violence, only the most reactionary traditionalists now harbour any concern that justice has not been well served by the retreat from these hoary assumptions led by our legislatures.

Rights‑conscious citizens

Until well after the Second World War, for most of the populace, courts were engines of social control, not social expression. The courts were institutions primarily concerned with the maintenance of the peace, to maintain order among the more rambunctious of our citizens. Not for nothing was the Magistrates Court then known among ordinary people as the “Police Court”.

Today, our confident and rights‑conscious citizens have a very different attitude to the courts. There can be no doubt that the zeitgeist has been captured by the demand for access to justice and that it is the courts that are expected to provide it. The notion that litigation is a necessary evil, not to be promoted by the courts – whose sole role was to resolve disputes – has been replaced by the premise that litigation is to be encouraged as the necessary means to ensure access to justice.

In my time, the demand upon the State to provide dispute resolution services overwhelmed the capacity of the ordinary courts. Quasi‑judicial tribunals such as QCAT were called into existence because, as those of us who were in practice as lawyers 30 years ago know, the ordinary courts were simply incapable of coping with the need for resolution in the vast range of disputes affecting our citizens that now require determination by organs of the State.

In the last 50 years, all our lives have become dependent upon exercises of State power through administrative decisions which are, as often as not, apt to confer benefits and privileges that improve the quality of the lives of our citizens. Now an extensive body of administrative law serves to ensure that the administrative apparatus of the modern State meets the responsibilities which its citizens demand of it.

We should not view the proliferation of administrative tribunals with alarm. Rather, that proliferation is an expression of the success of our society in showering rights upon our citizens in a way that could not have been imagined even in 1970, and of our community’s determination to ensure that those rights are meaningful in improving the lives of our citizens.

A pathology of these happy developments, though, has been the development of a litigation culture in which every reverse or grievance is perceived as an occasion to seek orders from a court. While the role of the judiciary taught to me at law school was the impartial quelling of controversies between citizens, or between citizens and other organs of the State, the courts are now being drawn, inexorably, into a broader role as the synthesisers of concord within the community. By the beginning of the last decade of the 20th Century, the pursuit of the access to justice by our rights-conscious fellow citizens drove a litigation explosion.

… the courts are now being drawn, inexorably, into a broader role as the synthesisers of concord within the community.

We barristers at the time enjoyed the financial benefits of this explosion of litigation: personal injuries, building cases, planning and local government and commercial cases all boomed so that the Queensland Bar was busier than it had ever been. Delays and backlogs became endemic, especially in the Supreme Court. The public became understandably impatient with the delays, and in the 1990’s for several years a Ligation Reform Commission comprised of members of the newly established Court of Appeal sought to stream line litigation. The UCPR was a major reform that emerged from this era.

The courts responded heroically, but the problems were effectively resolved only by the emergence of alternative dispute resolution and the introduction of QCAT. And the emergence of these solutions to the problems generated by the rights explosion changed radically the nature of practice at the Bar. Trials became even more rare than in the bad old days of the great delays as mediation became even more effective. It has been, for at least a quarter of a century, the availability of ADR which has allowed the Courts to manage their work load and incidentally to empower our fellow citizens themselves to resolve their disputes. The Bar has had to develop different skills as a result.

All this means, however, that today’s barristers spend much less time actually in court than we did back in the day. And the growing emphasis on specialization within the solicitors’ branch of the profession has meant that solicitors value advice on their specialty only from barristers who are equally expert in their particular field. So there are fewer all-rounders today than even three decades ago when every one of the dozen or so acknowledged leaders of the Queensland Bar was an all-rounder.

But some things don’t change. Queensland’s barristers are still, in my experience, second to none. That is certainly so in relation to civil work. Our criminal bar leads the nation as it has since it was inspired by the likes of Casey and Brennan and Cuthbert and Sturgess and Spender.

Queensland’s barristers are still, in my experience, second to none.

The great specialist skill is still advocacy. Advocacy is not just the confidence to stand up and fight a case in court; real competence is much more than self confidence. It is also the knowledge and skill to make the argument that persuades. Even, or maybe especially, in the context of ADR, the succinct but compelling argument is as valuable as it ever has been in any court. And it is made by a person sufficiently independent of the client to command the respect of the other side.

As Sir Harry Gibbs put it, the job of an advocate is to say what can be said for the client, and to say it well. That is still the essence of the barrister’s task.

It is not just because the work of the Bar is so well rewarded that you in this room have found yourselves drawn into the all-consuming demands of this life. Rather, it is because it can be the most exciting and fulfilling work available to us problem solvers. It is still true to say, as Sir Gerard Brennan said to the Australian Bar Association in 1996:

“A life at the Bar [is] replete with its triumphs and tragedies, its wins and its losses, the friendships forged and battles fought, the long nights of reading and the flashes of inspiration that sometimes fail in their application. The Bar captures the mind and governs the life of those who join it. Its rewards are sometimes financially parsimonious. It is a profession to be entered only by those who have a passionate desire to be a barrister. But that is the best of all reasons. For those, the experience of practice does not disappoint.”

It has long been my view that only we barristers really understand the intensity of the pressures involved in doing what we do. Even our nearest and dearest have only a rough idea. But there are some others who can make an educated guess. They are all the other lawyers, solicitors and academics who choose not to be advocates. That choice reflects, to some extent at least, just how hard it can be to say what can be said for the client and to say it well. It is hard to be the tip of the spear and the hard point in the shield; but so long as we retain the adversarial mode of dispute resolution they will be necessary features of our particular system of problem solving. But if you enjoy solving problems of the most difficult kind you wouldn’t want to do anything else.

Thank you for your attention.

[1] Martin Luke King Jr paraphrased that from a sermon delivered by an abolitionist minister, Theodore Parker, in 1853. He said, “I do not pretend to understand the moral universe. The arc is a long one. My eye reaches but little ways. I cannot calculate the curve and complete the figure by experience of sight. I can divine it by conscience. And from what I see I am sure it bends toward justice.”

[2] Capper, “Maintenance and Champerty in Australia – Litigation in Support of Funding!” (2007) 26 Civil Justice Quarterly 288 at 290-291.

[3] See BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111.

[4] (1986) 478 US 186.

[5] (2003) 539 US 558.

[6] (1973) 410 US 113.

[7] Bump, ‘A quarter of Republicans voted for Trump to get Supreme Court picks – and it paid off’, The Washington Post (June 26, 2018), available at <https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/>.

[8] ‘America’s highest court needs term limits’, The Economist (September 15, 2018), available at <https://www.economist.com/leaders/2018/09/15/americas-highest-court-needs-term-limits>.

[9] Mabo v Queensland [No 2] (1992) 175 CLR 1.