Guest Speaker's Remarks at the Australian Government Solicitor Alumni Launch

Brisbane

It was the spanish philosopher, George Santayana, who observed, "Tthe one who does not remember history is bound to live through it again." that famous aphorism appears on a plaque at auschwitz concentration camp, and deservedly so.

The enduring wisdom in it has many other applications. This event is one of them; for it explains why it is a pleasure to be invited to make some brief remarks at this inaugural function.

One of the extolled benefits of the AGS alumni program is that it will "Provide an opportunity to network with business colleagues, reconnect with former colleagues and communicate with the AGS". If they were the sole benefits, i would have declined the invitation to attend, much less to speak. Chapter iii judges do not "network" with any solicitors in these senses.

There are though other reasons for the AGS alumni to be formed, which include legal training and seminars. It is the opportunity via such professional associations to ensure that lessons from history are remembered that makes attendance apt for a judicial officer.

One of the strengths of the english bar lies in the opportunity offered, via continued judicial membership of one of the several inns of court, for a transfer of inter-generational learning and experience. That transfer is a two way process. No-one has ever suggested that, for example, cause for apprehended bias existed on the basis of a shared membership of lincoln's inn on the part of a judge and counsel.

If one truly understands, as everyone here should, the responsibilities of those who act for a model litigant, no similar cause for apprehended bias can exist.

Such an understanding was instilled almost by osmosis, but in reality by informal mentoring and example, in my time in what was then known as the commonwealth crown solicitor's office. All of what is now spelled out in the legal services directions^[1] was once a given.

Such are the resources of the modern nation state that an understanding of those responsibilities has never been more important. I am not sure that it is as widely understood ;in government as it should be just how important it is to have a repository of that ethos in government. At the federal level, we have reached the stage in public administration where our country's first law officer does not have within her department a large pool of practical expertise upon which directly to draw for advice.^[2] that was not so in my day. There are innumerable benefits for an attorney in a crown law or AGS office, not the least of which concern advice based on direct experience in relation to judicial and tribunal appointments.

The organisation of the civil service is a matter for the executive government. There are doubtless virtues in contracting out but it would be folly not to acknowledge that there are vices. Lessons learned in undertaking legal work for one department of government can and often do have a whole of government application. The risk with an over fragmentation of the provision of commonwealth legal services is that such whole of government lessons are lost to history. I see this occurring from time to time when exercising judicial power.

Yet another risk, ever present with in-house departmental lawyers, is "client capture" and with that a loss of the objective detachment that should attend the provision of any legal advice. Here again, the crown law office of my day fostered such an ethos. It led to tension at times within government, but that was a necessary tension. Imprudently instituted or defended legal proceedings can be the cause of oppression and a waste of public and private resources.

None of this is to say that i view my time with the commonwealth crown solicitor's office with rose coloured glasses. For example, i well remember the terrible embarrassment that attended the publication of an interim report of the costigan royal commission^[3] I was then acting in charge of the prosecutions section. For some time afterwards every second telephone call i answered was from some associate in private practice inquiring as to whether i had blonds, brunettes or redheads available and at what price!^[4]

The very first commonwealth public servant was a member of the attorney-general's department, Sir Robert Garran GCMG, QC. He became secretary of the department at a time when that office was combined with that of solicitor-general. He was a fine public lawyer and a great australian. In old age, he wrote his memoirs. When I joined the commonwealth crown solicitor's office I was encouraged by my another great public lawyer, John Gierke, to read them. I did and was the better for it. I encourage you to do the same. He entitled his memoirs, "Prosper the Commonwealth". In its own way, this association can and should contribute to that prosperity.

^[1] http://www.ema.gov.au/www/agd/agd.nsf/Page/LegalservicestoGovernment_LegalServices Directions 2005

^[2] See, generally, Report of the Review of the Procurement of Commonwealth Legal Services, 2009: http://www.ag.gov.au/Documents/REPOR1'°/4200F%20THE%20REVIEW%200F%20COMMONWEALTH%20
LEGAL%20SERVICES%20PROCUREMENT.PDF

^[3] Royal Commission into the Activities of the Federated Ship Painters and Dockers Union, 4th Interim Report, Volume 1 (Royal Commissioner Mr FX Costigan QC), Australian Government Publishing Service 1982

^[4] Ibid. See also Bereave v Hermes (1983) 67 FLR 186 and, on appeal, Bercove v Hermes (No 3)
(1983)74 FLR 315