Author: Christopher Craigie SC, Date: 21/08/2009 Venue: University of NSW Law Graduation
Chancellor, Dean, members of the University, graduates, ladies and gentlemen. Thank you for this very welcome opportunity to speak at my old university on such a happy occasion for the faculty of law and particularly for its latest graduates. I congratulate them on what will, I am sure, be a memorable day, marking as it does so much in terms of a significant personal achievement after years of effort. Congratulations are also due to the many proud and supportive parents, partners and friends, without whom the journey would have been more arduous or perhaps in some cases even not completed. I am conscious that there will be amongst the graduates today an infinite mix of personal backgrounds. That mix includes some people whose degree in law will supplement other qualifications and build upon prior career experience. Not all the graduates will necessarily follow paths leading to the traditional modes of legal practice. For all however, whether destined to practice in a firm, at the bar, within a commercial enterprise, in a department of state of elsewhere, it is a time to contemplate what your essential role as lawyers will mean for you and the community. For all the kindness of those who have invited me to speak, I am sure that I have not been invited here today solely because of my own rather undistinguished and faint footprint left here as a student, sometime last century. I suspect that it is far more likely that I am here to stand as an object lesson of what can happen to a person, of whom it can be fairly said- all he has done since leaving here over thirty years ago is to make a living from crime. So, at least in part, I am here as something of a curiosity. This status I happily embrace. One of the striking things about the profession of lawyers is that we tend to say, if asked what we do, “I am a lawyer”. Note; we say this is what we are, not just what we do. In terms of self-image it comes, (hopefully) second to the descriptors that define our personal relationships, as “son, daughter, husband, wife, father, mother”, etc. The self-identification is not just about one’s work but is a statement that raises a whole set of expectations, principally that as a lawyer one will have a particular and disciplined mode of thinking and of acting. This, rather than the clients or the interests that one represents or advises from time to time define the core of what one is about as a lawyer and the persona one has as the member of a profession, and an honourable one at that. Honour is not an old fashioned concept. It conveys amongst others things, integrity and a commitment to diligent and ethical conduct. In practical, even modern commercial terms it is one of the things that makes lawyers valuable to our society. The honourable nature of the profession is typified by what it requires of us. Apart from a competent knowledge of the law and its principles, the honourable nature of the profession is shown in a shared understanding that there are those things that we may do and those that as lawyers we simply do not do. This positive professional ethos is both instinctive for the good lawyer and embodied in the kinds of rules that govern our conduct and inform any reasonable expectation of us. The letter of those rules can be complex, their spirit is not. I know of no more succinct expression of the honourable spirit of the profession than the motto of the New South Wales Bar Association, “Servants of all, yet of none”. It is equally applicable to all reaches of the profession. Consider the somewhat inspiring challenges of carrying out this charge, that we should serve all but be servants of no one: It entail that one is to be fearless, vigorous but no mere mouthpiece for either the state or the individual. The aspect of the role as a servant of justice has expression in a number of places. Again, by way of example; in both the New South Wales barrister’s rules and in the equivalent national advocates’ rules promoted by the Law Council as the standard for ethical advocacy. I refer in particular to what the rules have to say about duties to a client and the consistency of that rule with other rules, protocols and unwritten traditions relating to one’s duty to the Courts; the latter embracing a primary duty to justice and to one’s own standing as a member of an honourable professional. The notion of the honourable profession and an honourable approach binds defender and prosecutor alike. Reflective of this and in addition to professional rules of conduct for lawyers as prosecutors, in each state, territory DPP and for Commonwealth Director of Public Prosecutions there is a shared approach to ethical prosecution. The honourable approach in this context embodies the strong view that the machinery of the state is not to be brought to bear against an individual lightly or capriciously but only if there is:
- a prima facie case
- a reasonable prospect of success and
- only then, due consideration having been given as to whether it is in the public interest to prosecute.
This three stage test is the core of those applied by each state and territory and by every DPP and is contained in the Prosecution Policy of the Commonwealth. I recently reviewed the policy and while some unrelated changes were made to other parts of the policy, the crucial test has once again been affirmed and approved by the Attorney General. So I say that with emphasis; and referring to just those few examples of both the letter and spirit of professional ethics, wherever and in whatever status practiced, it is indeed an honourable profession that you enter upon. There is a burden and a duty that comes with this status of being a member of such a profession. The burden is that, despite the high expectations of our profession (and in part because of it), it has never been unfashionable for popular culture to be negative about lawyers. The traditional negativity in popular culture once focussed primarily on the remuneration of lawyers. The contemporary version more typically sees us, at best as a necessary evil, and at worst as some kind of self-perpetuating and a self-absorbed priesthood of arcane cant and double-talk. I would like to suggest that one duty for us all as lawyers is to have a proper understanding of the unique capacity that each lawyer has to maintain or to undermine the rule of law. We can have a direct impact upon either by our conduct and according to whether or not we carry out our professional tasks with competence, dignity and whether we, ourselves act according to law. This role rests with all lawyers, whether working in the courts administering civil justice between individuals or facilitating the processes of criminal justice between individuals and the state. Notably it can be quite powerful, even in a social setting when one is asked the classic questions, as to “how can you act for someone whom you know is guilty”? A blunt or cynical answer can in turn entrench cynicism and promote a view, not only that all lawyers are amoral but that we have merely a legal system and not a justice system. When explained and exemplified at its best a lawyer’s role as part of the rule of law is far removed from the stereotypes of much popular culture, unsatisfying though this may be for people comfortable with those stereotypes. I have spoken primarily of the criminal law; that being the only area of the law wherein I feel entitled to speak with first-hand knowledge, if not with any degree of pretended superior wisdom. I trust that what I have had to say will nonetheless be of interest and value, whatever area of the law you enter upon. I am sure that it will at least be a topic of conversation upon which you will be pressed in many instances, the moment that people discover that you are a lawyer and regardless of whether you are a conveyancer, corporate specialist or appellate silk. I understand that one has some licence on this occasion and without any express or implied warranty as to efficacy, to indulge oneself by imparting advice. This is a great and dangerous temptation, speaking as one does, to those who have grown up and been trained in a different world, who are by and large younger, quite possibly much smarter than I was, but at least they are not able to argue back. So may I convey these few suggestions that may be of some assistance in your professional lives? Firstly, that you strive to maintain an open mind about your career destinations. If you are fortunate enough already to be on a particular and clearly mapped path to fame and fortune that is fine and I wish you well. But if the opportunity presents, do not ignore the possibility of such “happy accidents” as may see you diverted to a place not contemplated within the wildest of your present dreams. Who knows, you may perhaps find yourself in a public office or in an area of the law not immediately seen as your first preference or in an area of your perceived academic strengths at this point of your training and experience? Do understand, embrace and advocate for the attractive and entirely rational shades of grey inherent in the apparent contradictions in a system designed for human beings. Those supposed contradictions are in many instances merely the reflection of justice as designed for a tolerant society. Lawyers in their public and private interactions need to defend them with vigour, understanding and confidence. If the opportunity offers to shape or inform the policy makers, seize the opportunities for genuine reform. Be aware also of the distinction between reform and mere change. Black humour about the law may be amusing but it sits ill with most lawyers. Avoid cynicism but, by all means, embrace that great Australian virtue of healthy scepticism. Even in your social interactions, be the calm, patient and informed voice against intolerant or undisciplined thinking particularly that which falls unworthily from educated people on the subject of law and order. If the opportunity and privilege of practicing in criminal law presents, whether as a privately retained, salaried, pro-bono defender or a prosecutor, be neither a poacher nor a game keeper –simply strive to be an honourable and ethical lawyer within the estate of the law. In your professional practice you may frequently find yourself interacting with people under great stress, or indeed suffering profound distress. In some instances those people will be experiencing the worst time of their lives. Your dealings with people in such circumstances across a desk or in a conference will stay with them for good or ill. It will also determine their view of you and of the wider profession. The outcome of the encounter is as much down to your human touch as to your required skills in the law. Lastly, to love the law is good, but before that and above all, be certain to love justice. I wish you all long and satisfying careers. Thank you.