THE LAST WORD

… symbiosis; n; 1 Living together. 2 Biol. An interaction between two dissimilar organisms living in close physical association; esp. one in which each benefits from the other. 3 transf & fig. A relationship or association of mutual advantage between people, organisations, etc.

For centuries, barristers and solicitors in most legal professions based on the English model have had a mutually beneficial symbiotic relationship. It largely still exists in Australia, but it is breaking down. Clear, but not immutable, demarcation lines existed between the two branches of the legal profession. Barristers traditionally provided specialist advocacy and advice to solicitors’ clients. Solicitors, although permitted and qualified to be involved in litigation, generally left in-court advocacy to members of the Bar, particularly in the higher courts. Non-litigious transactional work was the preserve of the solicitors’ branch. The demarcation lines for courtroom work were informally enforced like union demarcation lines. Writing in the Spring 2017 edition of Bar News, the journal of the New South Wales Bar Association, the Association’s new President, Arthur Moses SC thoughtfully raises some of the existential issues facing the Bar. The NSW Bar is ageing and in numerical decline. He writes that one-third of practising barristers are over 60 years of age, and in past 14 years the total number of practising barristers has risen only by 221 whereas the numbers of practising solicitors has risen by 13,400. Work upon which new barristers learnt their skill – such as drawing pleadings, pleas, mentions, notices of motion and shorter hearings – are kept in-house by solicitors, particularly in the larger firms. Most civil matters are sent to mediation which may not have counsel present. Many cases settle at mediation. Many junior barristers in the civil jurisdiction can achieve years of practice without having regularly been in court – examining witnesses and orally persuading judges to see the merit of one’s case. Written submissions may be drafted by the solicitors, some of which may be settled by counsel. Moses correctly opines that the administration of justice is better served by an independent Bar, and enhanced by the efficient conduct of litigation by virtue of the specialisation of barristers as advocates. To be a specialist, one needs regularly to practice and to hone one’s skills. Professional golfers need to hit thousands of golf balls and play under match pressure as much as possible. Boxers staying out of the ring for too long can suffer from “‘ring’ rust”. It is the same in skilled callings like the Bar.

One of the cornerstones of the Bar is the so-called “cab rank rule”: in principle, a barrister is obliged to accept a brief in his or her area of speciality, if available, and if the agreed brief fee will be paid. Solicitors can pick and choose their clients. Lawyers do get typecast, and some barristers can technically wriggle out of inconvenient or potentially career embarrassing matters. Some are known for their plaintiffs’ practices, some for their predilection to act for the defence. John Mortimer’s eponymous character, Horace Rumpole, did not prosecute. However, the purist at the Bar, complying with its best traditions, will put personal business concerns aside and act for the despised, rapacious, traitorous and violent members of our society to ensure that a fair trial ensues and justice is seen to be done. One great attribute of a skilled advocate is the capacity, experience, and preparedness to act on either side of the Bar table. A lot of large firms of solicitors tend to act for one side of the register. A year or so ago a friend, a senior mining executive, needed a solicitor to sue his employer, a mining company. I asked a solicitor of a large international law firm with many clients in the mining industry whether he had a conflict to advise my friend. He replied that his firm could not act for him, not because of a conflict but because his firm only acted for corporations. I asked”: “What, you don’t act for someone with a pulse?” “Correct!” he replied. It is not in the public interest for lawyers to decline briefs with the result that the best advocates may be tied up by large corporate or governmental interests. Our democracy has an interest in having skilled representation available to individuals and organisations – whether popular or not!

Jeffrey Phillips, SC State Chambers, Sydney

WORKPLACE REVIEW   

 Tiberius with a Telephone the life and stories of William McMahon

by Patrick Mullins

 Scribe Melbourne London 2018

“McMahon to me is a contemptable little squirt”

“A dreadful little man”

Sir Robert Menzies provided this character assessment to the journalist, David McNicoll.

Despite this opinion, McMahon was not destined to spend his time as a backbencher observing political power from the foothills.  Instead, Menzies made McMahon a Minister within two years of his entering Parliament.  He went on to become Australia’s longest serving Minister (22 years) and then Prime Minister.

Patrick Mullins’ magisterial biography of over 665 pages explains this paradox.

William McMahon was born in 1908; his father was a solicitor.  In 1913 his father stood for the New South Wales State seat of Camperdown.  He was soundly beaten by the brother of his article clerk.  This ended his father’s political career.

McMahon’s mother died when he was nine.  He was then raised by relatives.  As Mullins notes, it was lonely childhood, isolated from his siblings, kept from his father, moving from school to school. He learned to rely on himself and to follow his own desires.  This would explain much of his behaviour in later life.

After graduating in Law from Sydney University, he joined the legal firm Allen Allen & Hemsley.  There he was mentored by the legendary Norman Cowper.  He had hoped to go to the Bar, but having suffered from hearing loss he gave up that ambition.

He was well regarded as a solicitor and he was made a partner of that firm.

During WW II he rose to the rank of Major, but was not posted overseas as a result of his hearing disability.

In 1947 he bumped into an old friend in Phillip Street, Jack Cassidy QC, a leading senior barrister.  Cassidy was seeking Liberal pre-selection for the Federal Seat of Lowe.  He was supposed to be speaking at a Liberal function but was due in court and could McMahon speak on his behalf at the meeting.

McMahon made such an impression that he was talked into standing for pre-selection.  He won the pre-selection, stood and won the seat (please check whether he stood against Cassidy in the pre-selection).

Cassidy let bygones be bygones and was knighted by Prime Minister John Gorton in 1968 as one of the great advocates of his generation.

McMahon was elected to Federal Parliament in 1949.  In 1951 he was made Minister for the Navy and Minister for Air.  Later he held the position of Minister for Social Security.

During this time he had formed a friendship with Country Party Parliamentarian, John McEwen to the point of them both going to the theatre and dining together.  However, when McMahon became Minister for Primary Industries their friendship came to an abrupt end.  McEwen believed that McMahon butted into areas sensitive to the Country Party without deferring to McEwen.

Readers will be particularly interested in McMahon’s period as Minister for Labour and National Service. His permanent head was Henry (Harry) Bland who had dominated the Department even before his appointment as Head in 1952.  Although Bland thought McMahon had ‘absolutely no feel for industrial relations and never understood them’, this was not the public perception.

He successfully took on the Waterside Workers’ Federation which impressed his colleagues.

On Menzies’ retirement,  Harold Holt became Prime Minister, and McMahon defeated Paul Hasluck for the Deputy Leadership of the Liberal Party.

As Deputy Liberal Leader, McMahon could choose his own portfolio.  He chose to become Treasurer.

McEwen was  leader of the Country Party and Minister for Trade.  He was a protectionist.  McMahon inclined towards free trade.  Their enmity deepened.

On Holt’s disappearance whilst surfing at Cheviot Beach, McMahon as Deputy Leader, was assumed to be the natural successor.  However, McEwen announced that the Country Party would not serve under McMahon.

McMahon did not stand for the leadership which allowed John Gorton to win the ballot against Paul Hasluck.  The relationship between Gorton and McMahon was poisonous.  McMahon ultimately became Prime Minister as a result of Malcolm Fraser’s dramatic resignation as Defence Minister and his attack on Gorton.  As Prime Minister, McMahon was facing a revitalised opposition led by Gough Whitlam.  McMahon was short, Whitlam tall;  McMahon had a faint voice, whereas Whitlam’s was confident and sure; McMahon was bald, whereas Whitlam had a full head of hair.

Mullins details the forces lined up against McMahon and his efforts to respond.  When McMahon announced the election date as 2 December 1972, Whitlam responded that it was the anniversary of the Battle of Austerlitz, when Napoleon defeated a significant combination of nation states.

In the 1972 election, the Labor candidate in the seat of Lowe standing against McMahon was Bill Fisher QC.  One of the co-editors of this journal was later thanked by Fisher for helping William McMahon win the election who won it on preferences flowing from the Democratic Labor Party candidate Emily Bannon. Fisher went to be counsel assisting in Woodward Royal Commission into drugs, a Supreme Court judge and then President of the Industrial Commission of New South Wales.

After his defeat by Whitlam, McMahon remained in Parliament until 1982.  He was on hand when Whitlam at the 1975 election met his Waterloo eleven days after the 170^th anniversary of the Battle of Austerlitz.

The end of 23 years of Coalition government was not inglorious.  It was not a landslide.  Whitlam’s majority was only eight.  An additional 1,917 votes spread across five seats would have seen the McMahon government retain office.

When McMahon retired in 1982 he backed the then Bulletin journalist, Malcolm Turnbull, to replace him as Liberal candidate; however, Turnbull never nominated.   A university contemporary of McMahon, Sir Richard Kirby, President of the Australian Conciliation and Arbitration Commission, had watched McMahon’s advancement.  He recognised qualities in the man of persistence, a readiness to fight, discipline and a capacity for hard work.  Others may not have seen that. Kirby said:

“People used to say Billy’s far too well dressed to be able to pass exams.  Billy will never go into politics, his manners are too good.”

Later they said:

“Billy will stay on the backbench, he’s too much a dilettante ever to make the ministry.  Billy was a magnificent fighter – literally.  He could box like a thrashing machine and was as game as hell.  But people seemed to overlook that.”

Mullins has shown a deep understanding of the period and the important players in that significant era in Australian history.Like a good novelist Mullins  captures the mood of the era well.  McMahon followed the old lawyers’ habit of safeguarding papers.  There were 27 filing cabinets of papers and files in his office in the Westfield Towers. Mullins’ labours were Herculean and more challenging than cleaning the Augean stables.

By Malcom Kerr, who was the Liberal Member for Cronulla from 1984 to 2011 and practised at the NSW Bar.

Here is my column , called Last Word published in the Winter edition of Thomson Reuters’ Workplace Review

Schmahkritik, (n) (German), 20^th century; abusive criticism.

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As this edition of Workplace Review goes to press we are coming to the end of a very long election campaign. Election campaigns have long since been a competition of ideas or plans for the future of the nation. Slogans or three- to four-word tag lines repeated ad nauseam have become the major parties’ lingua franca of campaigning. Please don’t expect elections to reveal novel, well thought-out policies. Such, need to be the stuff discussed over cheese and cheap wine and by twenty dollars-an-hour focus groups before an unveiling. Modern electioneering is devoid of new ideas and reduced to beauty parades, controlled meetings a la North Korea, gaffes, “gotcha” moments and, alas, schmahkritik.

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