Born at the Right Time Read online

  I assumed that it was unlikely that I could keep pace with the bright students sitting near me in those big classes or around smaller tutorial tables. To my great surprise, however, I did not disgrace myself. I was over the moon when I came first in British Constitutional History, then a compulsory law subject. I think that my family was both pleased and relieved that I seemed to be doing all right as a tertiary student.

  During my five years at Monash, a good number of students volunteered to read to me. Ironically, it was usually the busier students who found the time to read, perhaps because they were good time managers. It was easier to find students who were willing to read to me more lively material, such as criminal law or tort cases (tort is a civil wrong, such as someone falling over and hurting themselves in a shop because the shop owner failed to make sure something that had spilt onto the floor had been mopped up). It was much harder to seek out students to read property law, which was a little dry. The amount of reading required in my history and politics subjects was enormous. I really had to rely as much on my memory as I did on reading texts.

  One of my student friends, Ian MacDonald, walked on steel sticks because when he was a teenager a rifle accidentally discharged and injured him. He and I would cooperate in obtaining photocopies of court judgments or, as lawyers call them, case law. We would go to the law library very early on a Saturday morning and we would walk around together. Ian would find the law reports we needed and I would take them down from the shelves; with his guidance I would carry them to the photocopier. Ian would make two photocopies of the relevant cases. I then asked family and friends to read the photocopies onto tape for me.

  I believe that the urge to give and to share is part of our essence as humans. It is of equal importance to know how to graciously receive help. Occasionally, it’s a two-way street, with both parties giving and receiving.

  I felt this reciprocity very strongly with Mrs Ruth Pennycook, and later with her husband, Graham. In 1968, their son Roger was conscripted into the army and sent to fight in Vietnam. To take her mind off the dangers in which Roger found himself, Ruth asked if she could read material onto tape for me. Ruth read me a great deal of the recommended books for the American history course I took that year.

  Ruth and I reflected on more than one occasion that year that we were helping one another through complex periods in our lives. Roger came back from Vietnam unscathed, and Ruth and Graham continued to read for me onto tape throughout the remainder of my studies at Monash, and even during the early years of my career as a young academic.

  I typed my essays and assignments on an ordinary typewriter. As I couldn’t read back what I had typed, I had to learn to be rather careful and to ensure that my sentences were well constructed. Of course I could ask a reader to read back the typescript to me, but I couldn’t read back paragraphs as I typed them. Obviously, it was essential to train my memory so that I could instantly recall every sentence of the article or chapter that I was drafting on a standard typewriter. The layout was QWERTY, with no braille marking on the keys.

  I also typed my exam answers. I did this in a separate room so as not to disturb the rest of the class. The Law School had my exam papers brailled for me, which made things easier, especially in fourth and fifth years. Also, in order to be fair, I was given some extra time because my braille reading was slower than the speed of an average student reading with their eyes. However, a small amount of time was deducted because at ninety words a minute my typing speed was faster than that of the average hand writer. I thought this process was very fair, and I did not wish in any way to be given advantages over my class colleagues.

  During my time as an undergraduate, the Law School changed from a system of closed-book to open-book exams, which meant students could take books and notes into the exam room and consult them during the exam. Open-book exams did not assist me at all, because I had no way of consulting anything.

  I actually believe that closed-book exams are a better form of testing than are open-book or take-home examinations. When closed-book exams are supplemented with essay or memo writing, good students inevitably gain a superb grasp of the relevant areas of law under study. Much intellectual work is bound up with diagnosis and classification; just as good doctors need to have sufficient knowledge to diagnose patients, this is equally true for the good lawyer. Computers now enable us to speedily obtain relevant information at the push of a button.

  I may be a little old-fashioned, but I believe that cultivating memory is an important aspect of intellectual development. Closed-book examinations aid students in stimulating their capacity to recall relevant information. It is our memory that aids us in diagnosing problems. It is our memory that triggers us to find the appropriate legal information to strengthen or to diminish the diagnosis.

  When the new law building was opened at the beginning of my second year in 1968, a small room off the law library was set aside for me and for another blind student, Cate McKenzie. Cate commenced her studies in law and arts that year. Over the course of our degree Cate and I became great mates. We shared a good deal of tape-recorded material. Cate went on to have a successful career at the office of the Victorian Parliamentary Draftsman. She now sits on the Victorian Civil and Administrative Tribunal.

  I have been asked whether or not I found it useful to tape-record lectures. The answer is: yes and no. In later years I did use a small Philips cassette recorder to tape-record lectures. Some lectures at that time were nothing more than the lecturer reading out their notes, which were full of substantial information on the law being studied. It was invaluable to tape-record those lectures, and I spent many hours transcribing detailed notes from these recordings.

  In first year, I actually brailled out my notes, but I realised that this method was rather slow. In later years, I would type out my notes, but then I had no way of reading back what I had written. At the end of term I would ask Mum or a friend to read my notes onto tape so that I could refer to the tape recording when revising the course.

  Other lectures were more interactive in form and so were not worth tape-recording. However, I found the question-and-answer Socratic-method lectures far more interesting. This is because I learned that it is only through discussion, and through testing arguments, that one can truly plot the bounds and metes of legal rules and principles. After all, I could find most of the relevant information in the textbooks; but discussion was invaluable because it really gave me a feel for the law and for its application.

  Just as it is almost impossible to learn to play the cello simply by reading about how to play it in a book, the same is true for studying law. Of course it is possible to read textbooks, the Acts of the parliaments and the legal decisions of the courts. However, in my view, teachers help to put everything into context. Discussing the law and testing propositions is a little like practising a musical instrument. It puts flesh on the legal bones of the law. I think that we often downplay the value of good class interaction and discussion, and the role of well-prepared and enthusiastic teachers. When I became a lecturer, I found that these penetrating discussions, where propositions were tested and dissected, often taught me as much as they instructed my students.

  After three years of studying law at Monash, I graduated with a Bachelor of Jurisprudence and the Supreme Court Prize. At that time, David Derham, the then Dean of the Monash University Law School, had made it a rule that students who came straight from school could no longer study for a straight Bachelor of Laws degree, as was the case at other law schools. Many students chose to study for Bachelor of Arts or Bachelor of Economics degrees alongside their law studies. I had chosen to do a Bachelor of Jurisprudence degree, which focused on law but required the completion of a series of arts or economics subjects. It was a choice that allowed me to take history and politics courses.

  Abraham Wexler, the extraordinary science teacher I had had during high school, suggested that when I went to university I should at the very least take a history and philosophy
of science subject. At Monash University I took his advice and enrolled in a course on scientific thought. I gained a great deal from this.

  Especially in the later years, I drank a lot of bad coffee and cheap wine and had very stimulating conversations with the fellow students who gave up so much time to read to me. At that time the Vietnam War was at its height, and Australia had backed the United States by sending troops to that war-torn country. Like many of my fellow students, this seemed to me the wrong approach and I became a strong opponent of the war. During those years I became disillusioned with the narrowness of Australia and of the limited vision of our conservative governments, which had been in power for far too long. Countries such as Sweden and Canada were showing us the way forward. In contrast Australia seemed to me to be trapped in a 1950s time warp.

  Those conversations made up the majority of my socialising. Occasionally I went with other students to the pub for lunch. I didn’t have a girlfriend, which was perhaps a little unusual in those days.

  Through Melbourne Legacy, I had been introduced as a teenager to the Lord Somers Camp and Power House. This is a largely Victorian institution that began with summer camps in 1929. These camps were known colloquially as ‘Big Camp’. They were designed for boys in their late teens from divergent backgrounds in an attempt to teach them some life skills. Nowadays there are Big Camps for slightly younger boys as well as girls.

  During my final high-school year and university years, I attended the week-long Big Camps each January. These were held in the Lord Somers Camp at Somers on Port Phillip Bay and Westernport Bay. During my university years I worked on the staff, either on the camp newspaper or playing music on the camp radio system, which was transmitted via speakers mounted throughout the camp buildings. In January 1972 I took up the senior staff position as editor of the daily newspaper, the Somers Times.

  This was my only experience of summer holidays. As a family, we could not afford to go anywhere special; by the time I moved on to higher education, my brothers were working and had other interests. My membership of Lord Somers Camp and Power House introduced me to a much broader group of friends and acquaintances and gave me a deeper feel for Australian life.

  I am occasionally asked how I came to be a labour lawyer. The short answer is that, aside from my natural affinity with Australia’s labour law history of fairness, it was by accident. In early 1970, when I was discussing my law subjects for that year with Lawrie McCredie, who was now one of my lecturers, he suggested that I might like industrial law. These days, industrial law is known as labour law. The lecturer was Harry Glasbeek.

  Harry was born in Belgium in 1935. As a child he survived Hitler’s Holocaust because Harry, his parents and small sister were hidden on a French farm until the liberation. They migrated to Australia in 1949 to get as far away from Europe and its anti-Semitism as possible. Harry is now an elder statesman of labour law. He and his wife, Sandra, are among our dearest friends. I recognised Harry’s teaching to be truly inspiring; of equal importance, I found that labour law fitted me like a glove. Labour law brought together the law, history, politics and social justice. It spoke to me because of my background.

  After two weeks of Harry’s classes, I knew with that rare sort of clarity, even though I was just twenty-one, that my professional life would be as a labour lawyer. For me, the rules governing behaviour and outcomes in the workplace are almost as important as are the legal rules that govern our personal relations and intimate actions. A country that has fair and just places of work is usually a happy and productive nation. Labour law showed me that laws could play their part in adjusting and improving social relations, and I wanted my life to be part of this process.

  What struck me about labour law was its fairness, its view that we should be looking after everyone in the community and making it a more egalitarian society.

  At the beginning of the twentieth century, Australia and New Zealand embarked upon a significant social experiment: they chose to use judges to set out the minimum wages and maximum hours for all categories of menial workers. No other nation at that time had tried arbitrated rulings to redistribute the profits from capital down to the workers.

  For the first three-quarters of the twentieth century, this method of setting wages, and terms and conditions of employment ensured that Australia was truly more egalitarian than most other nations. This system enabled ordinary workers and their families to share in the productivity gains of the nation. It wasn’t perfect: for example, this mechanism focused on male bread-winners, which meant that women and Indigenous Australians received less-favourable treatment. However, looking back at this time, it was a successful experiment in redistributing wealth and made Australia into the nation it is today.

  During Harry Glasbeek’s classes, I became entranced by the judgments of Justice Henry Bournes Higgins, who was the second President of Australia’s federal labour court. In particular, his Harvester Decision of 1907 showed me the power of the law to improve the lot of ordinary workers.

  The Harvester Decision came before the labour court due to the concerns of a number of factory owners. They were asking to be exempted from an excise imposed by the government of the day on farming equipment. The only way to escape this excise tax was to prove the farming equipment was made in Australia and the workers who made it were paid a ‘fair and reasonable’ wage. The relevant Act did not actually say what a ‘fair and reasonable’ wage was; instead, a senior judge was to decide whether a manufacturer paid their workers such a wage.

  Out of the 112 factories keen to be considered for an exemption from the excise tax, Justice Higgins chose a harvester manufacturer that employed a large number of workers. Justice Higgins then set about gathering evidence of the cost of living, which he described as ‘the normal needs of the average employee, regarded as a human being living in a civilized community … the amount that has to be paid for food, shelter, clothing, for an average labourer with normal wants, under normal conditions … a condition of frugal comfort estimated by current human standards.’ The judge decided the ‘average labourer’ was a male worker supporting a wife and three children.

  Justice Higgins heard evidence about the cost of living, such as rents in the area where the workers lived from a land agent and the cost of meat from a butcher. He also heard evidence from a number of working men’s wives about their household budgets. One wife couldn’t feed her husband meat for three days every week when he held a different job with a different employer. As far as the wages paid by the harvester factory, Justice Higgins noted that ‘even in the case of total abstainers and non-smokers’, the then wages of most of the workers he considered for this case would be stretched very far indeed to cover things such as electric light bills, boots, insurance, train fares and school supplies.

  In the end, Justice Higgins declared the harvester factory did not pay fair and reasonable wages to its workers. In settling labour disputes by conciliation and arbitration, Justice Higgins used this Harvester standard to increase the minimum wages of the menial workers who came before the labour court.

  Our labour laws have changed since 1980, in large part owing to increased trade, globalisation, advances in information technology and other factors. Conciliation and arbitration have been largely swept aside and replaced by collective bargaining. However, the aims of these laws remain the same. Again, I may seem a little old-fashioned, but I have always taken the view that there is a natural divergence of interests between the owners of capital on the one hand and, on the other hand, the employees and contractors who perform labour to support themselves and their families.

  For me, the significance of this period of my education was that I had found a subject that would fascinate me for the rest of my life. This helps explain why I would seek to expand my knowledge base beyond Australia.

  5

  Studying Overseas, and Being Helped by Prisoners

  By my fourth year of university studies I began to think hard about what I might do after u
niversity. I really would have loved to have been a barrister and to appear in court on behalf of clients. However, I realised that my inability to read would be an enormous handicap. I could imagine my barrister opponents showering me with documents at the last minute, which would put me at a great disadvantage. If I were studying law today, with all the information technology that is now available in the form of portable text readers, I am sure I would have become a barrister.

  I reflected on what I could do to minimise my reading difficulties. It seemed to me that I might have a successful career as a legal academic, teaching labour law at a university. I reasoned that I could have the material read to me before I began each lecture and I could use my skills to teach students the legal principles.

  The major obstacle that then confronted me was to be able to convince a university to hire me. The usual way of becoming a legal academic then (as now) was to undertake postgraduate studies in law, preferably at a distinguished overseas university. During my fourth year, when I studied advanced constitutional law under Professor Geoffrey Sawyer, he generously offered to assist me if I wanted to do a PhD at the Australian National University in Canberra. This was an extraordinary gesture from a famous scholar. However, I thought that an overseas qualification would give me better opportunities in the academic labour market than would an Australian doctorate. This was almost fifty years ago, and in those days the cultural cringe about all things local still operated in the collective Australian mind.