Graduation address given by the Hon Dennis Mahoney AO QC

The Hon Dennis Mahoney AO QC gave the following occasional address at the Faculty of Law graduation ceremony on 24 May 2002.

Graduation address

Chancellor, Pro Vice Chancellor, and members of the University. You have this morning done me great honour. The degree you have conferred upon me - the degree of Doctor of Laws (Honoris Causa) - is a prestigious honour. To receive such an honour from the University of Sydney is a particular honour. The University of Sydney was Australia’s first University. I believe that it is still Australia’s first University. But more significantly, it is my University. To be so honoured by one’s own University is an honour indeed.

I had the privilege of studying at this University with great men: John Anderson, John Passmoor, Percy Partridge, Alex Mitchell and of course Julius Stone. They were great men, capable of clear and incisive thought, who took their students with them to the edge of knowledge.

But they were not merely great men; they were great University men. They saw it as their duty to search for the truth and to articulate it...whatever the consequences. They saw that as their duty because they were members of the University. And they said what was true often when it was politically incorrect - less than popular - to do so. John Anderson’s stand for his views in the nineteen thirties is part of the history of this University. Partridge taught me and others the deficiencies of socialism and communism when Joseph Stalin was the vogue and criticism of communism was popular with those who fanned public opinion. Julius Stone’s great work changed Australian understanding of the law. He did this when the then Sydney establishment thought otherwise. And he paid a price for it. Of course there were others who have stood for the truth. There are people outside the Universities as well as within them who seek the truth and say what it is whatever the consequences. The men with whom I studied were University men, because they saw the function of a University to be not merely to speak the truth but to protect it ... to protect the truth and to police it. They saw it as their function and their duty to do this by generating a climate of contempt for those who say what is not true and who should know better - to create a climate of contempt and to police it, publicly.

Protection of the truth is, I believe the essential function of a University. If it is not it is nothing, nothing more than a place for training the untrained.

What is the relevance of this to a degree of Doctorate of Laws and to those who have graduated and become lawyers?

I say this because Law is under attack and something should be said about it.

The attack is not merely the understandable reaction of those who read of the Law in a newspaper - do not like what they read of it - and react accordingly. Newspaper readers are not expected to realise that the media does not - in the nature of things it cannot - present accurately the issues which affect the law. To that extent the media should not be blamed for what it does. The present attack is more fundamental and so more dangerous. lt not merely attacks the Law; it attacks respect for the Law.

The distinction is important. Law is not merely an incidental to a good society; it is at the heart of it. For a good society two things are essential: Law and sewerage. Without sewerage we are dead. But without Law a good society simply cannot function. If we are not controlled by Law we will be controlled by those who have power: the power which comes from the State - from wealth - from combinations and from the gutter (and the guns and the drugs that are there). And that is not a good society.

But Law cannot exist without respect for the Law. Unless there is respect for the Law, Law cannot function, it cannot do what it is to do. Law cannot be imposed by force or by the gun; history has shown that. lt is respect for the Law that enables the Law to do what it does: maintain order control power and distribute rights fairly. ln our society - if we respect the Law - we will make it clear to the others that also must respect the Law and must obey it. That is the way - the only way - that Law can operate.

At the moment we have respect for the law. But it did not come easily. It is not a gift from above. lt must be won and when won it must be protected. We have it in our society only because - at cost and sometimes with blood, it has been built up over three hundred years and more.

But it can be destroyed and destroyed in a generation. Respect for the Law, as with any institution, will be lost if people are persuaded of two things: that Law does not produce the results that it should; and that those who represent the law, the lawyers, do not do what they should. And it is that which is now being said and why respect for the Law is under attack.

I find it strange that this is the attack which is being made, because, in our society, we are fortunate. Our Law, as a social mechanism, works well; and the standard of the efficiency and the conduct of the lawyers is high. I do not mean by this that the Law and the lawyers are perfect: of course they are not. I do not mean that there is not a need to adapt and to change the Law to serve the changing needs of our society: of course there is. I am speaking in terms that sensible people will understand. The Law is not perfect: you can give me an example of where the Law does not work perfectly and I can give you two more. But only an adolescent criticises an institution because it is not perfect or is not functioning perfectly. (Unfortunately, in some, adolescence continues even into old age). The question which the sensible person will ask of an institution is: given that it inevitably, has defects, does it (according to the standards of its own age and with its given sources) function as well as an institution can be expected to function? By such a test, we in Australia can be proud of what we have achieved in our Law. And we should be proud of it. What justification do I have for saying that? I could examine step by step each part of the legal system.

There is not time for that. Let me say three things. Law is not a matter of juggling concepts. lt is a hard practical discipline. I have had experience of how our Law operates, perhaps more experience than most. (I am young but I have been young longer than most of those who talk of these matters). I have seen the practical operation of the Law for fifty years and more: as a practising lawyer, as a Judge, and (as I may say) as a critic of it. I have seen how it operates among legislators and officials, such as Mr. Laurie Glanfield, the Director General of the Attorney Generals Department, who is here today. (For ten years as Chairman of the Commonwealth Remuneration Tribunal I dealt with the remuneration of Prime Ministers, parliamentarians, and the senior public officials and I saw what they did in the law). I have seen from within the facts, and not the fictions, of judging and what is done by such Judges as Justice Mason the President of the Court of Appeal who is here today. (As Chairman of the Australian Institute of Judicial Administration I helped change the functioning of the judiciary and the courts). I have also seen the Law and the lawyers of other countries. I have seen them at close quarters and I can compare their Law with ours. I was Chairman with the Chief Justice of India and then of the Philippines of the Judicial Section of the lawyers association of Australia and Asia.1 have been concerned with the functioning and the administration of the Law in jurisdictions in Asia, Europe and USA. Having seen other systems in operation I can say that our system of Law compares well and better than well. I would
prefer to live under our system of Law rather than theirs.

And our Law has adapted to change. Law must change to adapt to the changes in society. Our Law has done so. In my generation, the Law here has changed more than in the previous three hundred years. If those who are concerned with the administration of the Law are allowed to do what they do, with knowledge and experience, that change will continue.

If Law be as I have said, why the present attack? Why is respect for the Law now being called into question? I can understand attack upon the Law by those who see Law a restraint upon the exercise of their power, who see it as standing between them and money. They, like the poor, are always with us. And knowing them, we can understand why they would attack the Law.

I find it more difficult to understand the attack upon the Law by the others, those who depend on the protection of the Law for the kind of society that we enjoy, for their position in it, and indeed for the survival of their right to criticise it. If you cut down the protection which respect for the Law gives, there will be nothing between them and what will come from unrestrained power and from the gutter. And, as Thomas More said, that wind blows cold. I do not make judgments as to why those who attack the Law (and attack it accurately as they do) do what they do. Some do what they do from the highest motives and are mistaken in what they do. But I am conscious that it has been said that as one attacks an institution one attracts notoriety and attention to oneself. Such an attack can achieve a notoriety for and draw an attention to those who do it which they would not have otherwise. It was said long ago that one may attract notoriety by chipping at the ankles of the great.

But attack upon respect for the Law is a serious matter. It is too serious a matter to be stifled and so tolerated as merely an attempt, a legitimate attempt, to achieve circulation, ratings or cheap applause. It is permissible to criticise the Law. Respect for the Law may be put in issue - of course it may. But those who do so have a responsibility: a responsibilty to understand what is at issue, to know what image they may do by distortion and to be accurate in what they say. In this regard, accuracy is not a virtue, it is an obligation. At present accuracy is something which is often wanting and damage is being done accordingly.

What, then should be done? Is there a responsibility on the Universities and on those whom they graduate? What is the responsibility of the thinking class to deal with those who, in attacking the Law and respect for the Law, have less than a full regard for the truth, who will say whatever suits their purpose or will attract cheap applause? It may be said that nothing need be done because truth is an acid and in the long run it will burn those who mishandle it. That is not enough. In the meantime and unless something is done now, we and respect for the Law will be dead. A lawyer and a University person will of course feel contempt for the contemptible. But I believe that there is now a greater obligation. Truth, and the attack upon respect for the Law, cannot be allowed to go by default or be dealt with merely by private disapproval. But what can be done? We do not have, nor should we have, control of what is said or the means of saying it. So what is it possible to do? Those who attack respect for the Law are entitled to say what they want to say; in a democratic society that is their right and we must defend that right. But they are not entitled to say it if by saying it they put at risk and do damage to more fundamental values. More accurately, they are not entitled to expect approval of what they say; they must expect the contempt of those who understand the damage that they do and why they are doing it. I believe that a University can, and should, create a climate of contempt for those who say what is not true and who should know better. I believe that a university person, a lawyer, now has an obligation to create and to actively and publicly such an attitude to that is being said. That is something that can be done. Unless it is done, respect for the Law will cease to exist within the general community and the thinking class will cease to be entitled to the benefits of it. What of this University? I believe that contempt for the contemptible was part of the ethos of this University as I knew it to be. I believe that that is still the ethos of this University - at least, Chancellor, I hope that it is. Chancellor, there is a story told of a former Chancellor of this University. A speaker asked him; “Chancellor, for how long I speak?” The Chancellor replied: “My dear fellow/what a question to ask! You are our honoured guest. You must speak for as long you wish. There is only one thing. In ten minutes we will all go off to lunch. But you speak for as long as you wish”.

Chancellor I would not wish to keep you from your lunch. I thank you for the honour which you have done me by conferring on me the degree of Doctor of Laws.