Thematic: Contemporary Issues Facing the Australian Legal Profession

Speech on launch of UNSW Law Journal

Justice Anna Katzmann [1] 26 November 2014

RTF version RTF version - 85 kb

It is a great privilege to have been asked to write the foreword for the thematic component of this issue of the Law Journal and to launch it. I am very fond of my alma mater. I congratulate the authors and the editor on producing a splendid publication. I hope it is widely read. It deserves to be.

It is a curious thing the book launch, even more curious, perhaps, the journal launch.

I say curious because the first meaning of launch given in the Oxford English Dictionary is "the action or an act of lancing, a prick". That is, lancing comma prick. The comma is obviously important. In 1596 Spense wrote in Hymme Heavenly Love "What hart can feele least touch of so sore launch". The OED lists a couple of other obsolete meanings before referring to the action or process of launching a vessel, missile, spacecraft, glider or the like. It was not until 1997 that the OED added the meaning: "The placing of a new product on the market; the publicity event at which this takes place" and the first reference to a book launch that the editors picked up appears to have been in 1983.

As book launches go, this is a rather orthodox one, tame indeed. It began in the customary way with finger food and alcohol. And it is in an office building. The organisers could have opted for something more adventurous. In 2010 Tom Clancy, for example, launched his novel Dead or Alive with a crack team of four Red Devil paratroopers storming the Tower of London through clouds of orange smoke to deliver the first four copies to yeoman warders at the Tower where they were guarded in the yeoman gaoler's office overnight before the official release the next day. Each copy was signed by the author and enclosed in an aluminium case with a Swiss army knife, an engraved silver bullet and customised Army dog tags which were later auctioned on-line to raise money for the Parachute Regiment charity. Inspired by an article on professional funeral wailers in China, the same year the American author Jennifer Belle launched her book, The Seven Year Bitch, by hiring actresses to read it on the New York subway and at several city landmarks and laugh uproariously as they did so. That earned her publicity in the New York Times including a video on the paper's website, the story was then sent into the Twittersphere, and lots of people blogged about it. Kathy L Patrick, a hairdresser and the owner of a hair salon and bookstore known as Beauty and the Book issued a challenge on Facebook, saying that if she sold 1,000 copies of My Orange Duffel Bag, she would colour her hair orange. The authors did the same. Orders for the book apparently flooded in. Kathy sold 331 copies on the first day and reached her target in less than a month and she did as she vowed she would.

It can't be beyond the imagination of law students to come up with an innovative way to promote the next issue of the law journal. I dare you.

And so to this issue. I congratulate the editors for their decision on the theme. It is important that we periodically reflect on the challenges that face us for we cannot address them without it. Both Melissa in her editorial and I in my foreword offer our perspectives. As I wrote, many of the issues that are live today have always plagued us. The high cost of litigation, for example, is one perennial. So, too, delay, although the days of Bleak House are surely behind us. Recently, our Chief Justice, James Allsop, in a speech, hosted by the UNSW Law Faculty at a rival law firm, spoke of the issues in the context of judicial case management and suggested that the problem of litigation costs and delays may be as old as the law itself. He quoted from Gibbons' Decline and Fall of the Roman Empire, first published in 1788. Gibbons referred to the Roman advocates "who filled the Forum with the sound of their turgid and loquacious rhetoric". He said that, for the most part, they were "ignorant and rapacious guides, who conducted their clients through a maze of expense, of delay, and of disappointment from whence, after a tedious series of years, they were at length dismissed, when their patience and fortune were almost exhausted".

As might be expected, this edition of the journal canvasses a range of subjects of contemporary interest and significance.

If you have been reading the newspapers lately, however, you could be forgiven for thinking that the most pressing issue affecting the profession or, at least, the bar, is whether senior counsel should be called queen's counsel. The issue was considered sufficiently important to warrant the organisation of a ticket against the incumbent leadership, which had declared itself in favour of maintaining the status quo. The Australian newspaper thought it was sufficiently newsworthy to attract a front page story, to which the sub-editor gave the rather unseemly title of "Royalists fight to restore QCs after Bar room brawl". The most apt description of this cataclysmic event, however, appeared in Richard Ackland's on-line legal magazine, Justinian, under the heading: "Visigoths invade the temple".

The reputed organiser of the ticket was reported in The Australian as describing the restoration of the royal moniker as a "crucial" reform, necessary if the Bar was going to "regain its competitive edge". The proposition being advanced is that NSW will be left behind if it does not fall in behind its counterparts in Queensland and Victoria, whose yearnings for past glories have seen the overwhelming majority of senior counsel opt for the monarch's blessing.

In particular, it is seriously suggested that NSW senior counsel will suffer a significant detriment competing for work in Hong Kong and Singapore in both litigation and arbitration unless they are rebadged.

One of the finest silks in the country, who has not been handicapped by his post-nominals, Bret Walker SC, described the argument as ridiculous, pointing out that it was at odds with the experience, derived over more than two decades, that whether one was an SC, rather than a QC, had no impact on an advocate's success. He said that the argument contained "an extraordinary adverse implication about the wisdom and acumen of these unnamed individuals who make briefing decisions, be they clients or solicitors or lawyers abroad". And he noted that none of the leaders of the legal profession in Asian countries with common law traditions were QCs!

Of course, such a change would require legislative amendments. The taking or using of a name, title or description like Queen's or King's Counsel or her or his Majesty's counsel by someone who is not entitled to take or use it may give rise to an offence under the Legal Profession Act 1994 (Cth); see ss 15 and 16. So all this nonsense requires the approval of the Government, which has yet to be persuaded that a change is in the public interest.

In Mr Walker's opinion (which accords with the position the Bar Association has hitherto taken) it would neither be dignified nor proper for the profession to approach the Government to change the law.

Where this zeal for a return to the past has come from is frankly beyond me. It beats me why the preferment of the government of the day is a better indication of the ability of a barrister than the approbation of one's peers after extensive consultation with both branches of the profession and the judiciary. Given that this is a referral bar, the notion that any solicitor would not understand that whether a person is a QC or an SC says nothing about his or her ability is unfathomable. If, which I very much doubt, there is any misunderstanding about the difference between a QC and an SC (whether in Australia or overseas), it can easily be dispelled.

Bret Walker suggested that this was more about "golf-club hankerings". Richard Ackland referred to it as self-aggrandisement. The breakfast team on radio 2UE described the agitators for the restoration of the royal title as "tossers and tosspots" and "plain old wankers". As the Right Honourable Francis Urquhart MP would have said, you might very well think that. I couldn't possibly comment.

Mercifully, this edition of the UNSW law journal ignores this distraction. Instead, it concentrates on issues which are important and which have contemporary relevance. I don't propose to repeat what I wrote in the foreword but, never one to miss an opportunity, I do want to make a number of points about one of the issues covered in some of the articles and to which I devoted some space myself. That is the issue of lawyers' mental health, a particular hobby horse of mine, and the TJMF Psychological Best Practice Guidelines published by the Tristan Jepson Memorial Foundation of which I am a director.

First, until relatively recently the professional associations, law firms, university law schools and the courts paid scant regard to the psychological wellbeing of lawyers and law students, grossly underestimating or undervaluing its importance. In the two year period in which I was president of the NSW Bar, during which I championed the issue, six barristers took their own lives. Countless others battled with anxiety and a variety of mood and substance abuse disorders. In all likelihood, the situation was worse in the solicitors' branch of the profession where the vast majority of lawyers have much less control over their workloads. Over the last decade, however, there has been a growing awareness of the magnitude of the problem, much of it driven by the work of the Foundation.

Second, while work is not always (or even generally) the cause of these disorders it may exacerbate or accelerate their onset.

Third, addressing the issue of mental health is a no-brainer. As the Mental Health Commission of Canada points out, adopting a standard can help organisations improve their productivity, financial performance, risk management, employee recruitment and retention of employees.

Fourth, the Guidelines I mentioned earlier were adapted from the Canadian national standard which, in turn, was based on extensive research conducted by the Centre for Applied Research in Mental Health and Addiction, an internationally renowned interdisciplinary research centre located within the Faculty of Health Sciences at Simon Fraser University in Vancouver.

Fifth, I should acknowledge the support the Foundation has always received from UNSW Law School. Before the Foundation was established in 2009, it sponsored the annual lecture and it, together with the UNSW Law Society, is a signatory to the Guidelines. So, too, are the journal's three premier sponsors: Allens Linklaters, Herbert Smith Freehills and, of course, our hosts, King & Wood Mallesons.

Sixth, while they are not a panacea, the Guidelines go some part of the way to addressing the concerns that Professor Parker raised in her article. They are not prescriptive. Rather, they are designed to assist employers to set standards against which they may measure their commitment to the welfare of their employees. They identify the workplace factors that can contribute to a psychologically healthy workplace. They include an environment in which there is a culture of trust, honesty and fairness, where employees support each other, where there is effective leadership, where civility and consideration for others prevail, in which there is some flexibility for staff and employees are encouraged and supported in the development of all their skills, including their emotional skills, and their efforts are recognised and appropriately rewarded, where staff have some control over how they organise their work, where their views are respected, and where they can freely communicate their concerns to management.

Seventh, I would not be surprised if national standards similar to the Canadian model are introduced in this country at some stage in the future. After all, the cost of mental ill-health, like physical illness or disability, is a substantial burden for business and the community at large. Prevention is always a better option than treatment or palliation. Wouldn't it be good if the legal community were seen as leaders in the field?

I look forward to a time when law firms compete for staff and business by advertising their work practices as ones which are designed to keep their workforce in the best of mental health, when employees in those firms sing the praises of their employers for their attention to their welfare, when psychological safety receives the same level of attention as physical safety, when smart young lawyers are not consigned to months on end of discovery or other tedious or menial tasks, when employees are encouraged to be open with their supervisors about the stresses under which they are placed, and when those who report unsafe work practices or mental disorders are thanked, even praised, for doing so, not criticised, rebuked or stigmatised, and when legal employers are acclaimed for their empathic approach to their staff.

I am pleased to launch this issue of the UNSW Law Journal. May it stimulate the discussion of truly contemporary issues in the legal profession, not merely in the academic community, but amongst practitioners as well, and may it inspire the profession to make the safety of the legal workplace a priority.

[1] Judge of the Federal Court of Australia and Additional Judge of the Supreme Court of the Australian Capital Territory.