Speech by the President at the University of Notre Dame Australia for the 2023 Michael O’Dea Oration

The 2023 Michael O'Dea Oration

Delivered by Judge Gerard Phillips¹

President, Personal Injury Commission of New South Wales

The Lawyer in the Public Square

University of Notre Dame Australia, Law School Prizegiving Ceremony, Broadway Campus, Monday 8 May 2023

Professor Francis Campbell, Vice-Chancellor of the University of Notre Dame Australia, Governors of the University, Professor Quinlan, Dean of the Law School, Faculty Members, Students, Ladies and Gentlemen. In particular I acknowledge Mr Michael O’Dea, the distinguished lawyer after whom this Annual Oration is dedicated. I also acknowledge any of our indigenous brothers and sisters present here this evening.

Firstly, can I offer my congratulations to all you prize winners this evening. The study of law is not easy, nor is it meant to be so. You should be proud of what you have done and achieved. Doubtless behind every student here tonight is a loyal bunch of family, friends, partners and sundry hangers on who have all encouraged and helped you along the way. Make sure you tell them how much you appreciate their support, because it is true, we do nothing by ourselves.

I have had the pleasure of knowing Michael O’Dea for over 35 years. Indeed, he gave me my start in the law back in 1987. This was in the days before mobile phones, so Mike called home and my mum answered what was the only telephone in a house with a family of five kids. He asked to speak to me as he wanted to offer me a job as a solicitor and mum immediately said, “he’ll take it”. The rest as they say is history, he has been a good friend and colleague ever since.

For that reason, but not only for that reason, it is a great honour to have been asked by the University to deliver the 2023 Michael O’Dea Oration.

The subject of this oration tonight is the Lawyer in the Public Square. Part of the reason for that choice is that Michael O’Dea is a shining example of such a lawyer, but more on that later. Another reason is the immense privilege that is bestowed on those who practise the law. With that great privilege comes great responsibility.

The legal skills that you have learnt at this University, and which will be honed in practice, will uniquely equip you to participate in a wide range of public debates. Indeed, as a citizen you may have a duty to positively contribute. You will see things that you passionately believe should change and you will have the knowledge and skills needed to try and effect that change.

Think of the current scope of such issues subject to public debate:

(a) The Indigenous Voice to Parliament

(b) Climate change

(c) The role of anti-corruption commissions in the legal system

(d) Sentencing – we are all familiar with that well-known sentencing commentator, the talk-back radio host

(e) Religious freedom

(f) The metes and bounds of hate speech

(g) The role played by press or commentators which may adversely affect the conduct of a criminal trial

There are other topics, but these are particularly controversial at present.

My injunction to you all tonight is to get involved in these debates, but to do so respectfully, cognisant of your role as a lawyer, and the authority it brings you in the eyes of the public. I want to talk to you tonight about how you might go about doing that.

Shireen Morris, a Senior Lecturer at Macquarie Law School and for seven years a senior policy adviser to the Cape York Institute, wrote the following in 2018 and I think it gives anyone engaging in public debate a great direction to follow.

The best thinkers, when dealing with vexing policy, legal and political problems, take on board the legitimate concerns of their opponents, learn from them, and forge a new and better synthesis position. They find the elusive ‘radical centre’ between competing philosophies. Finding the radical centre requires both parties to shift. This requires humility and intelligence – for the smartest people know they cannot be right on everything, and even their rightness can be refined. The insights of others, bringing different life experiences, can open our minds – if only we have the courage to hear what others say.²

Wisdom”, Morris argues, “comes not from arguing in echo chambers and dismissing different views – it comes from hearing and understanding those with alternative perspectives and learning something from them.³

The remarks I am about to make are consistent with these themes.

Your influence and power as a lawyer extends broadly. All the issues I just mentioned are at the intersection of law and political debate. Opinions are often sought from lawyers as a result. Frequently opinions – including among lawyers, but also among the general public – on these issues are highly contested, emotions can run high, and these days one runs the ever-present risk of cancellation for expressing a view or opinion which may differ from the prevalent or popular position. Such arguments are often more about disputed values rather than facts or principle. Cancellation then has all the professional and personal ramifications that can follow this modern form of non-judicial punishment.

Such cancellation is generally anathema to the manner in which lawyers should be expected to conduct themselves. It is contrary to the notion of a liberal democracy like the one we enjoy.

I should also add that merely because you are a lawyer does not make you “correct”. Indeed, if there is one thing lawyers can generally agree on, it is disagreement. Your method of debate should therefore be characterised by humility, rather than professional arrogance.

In that regard, in a recent speech to an Admission Ceremony in Newcastle, the Chief Justice of this State said:

In this context, I wish to emphasise the importance of civility. Aspects of the law, especially if you are involved in the litigation side of practice, are confrontational. … It is essential that you maintain your detachment, balance and good humour, remembering at all times that you are members of a profession and not a business.”⁴

I wish to associate myself with those remarks. They are a vital starting point for any lawyer who intends to engage in public debate.

Aside from civility, there are several other matters you might wish to consider before becoming involved in public debates. One is the instructive examples that history can provide you. I wish to point out two.

The first is Michael O’Dea himself. Many of you will not know his eminent background. Mike was a Partner of the firm Carroll and O’Dea for some 43 years. Carroll & O’Dea has been in existence for over 120 years and is one of the finest firms in the profession. Mike fought for justice every step of the way for his clients, whether they were shearers or large institutions. Indeed, that firm owes much of its continued good name to him. It certainly does not owe it to my fumbling attempts at being a junior lawyer!

But just as importantly, Mike has been one of the leading contributors to the civic life of this city and this state. For a time, Mayor of North Sydney, on the Boards (and frequently the Chairman) of Sacred Heart Hospice and St Margaret’s Hospital, Christian Brothers Advisory Board and the Board of the Mater Hospital at North Sydney to name a few of his many contributions. These were all roles that from time to time required Mike to enter the public square to advance and debate the institution’s role in the community.

Michael engaged in public life professionally and courteously. When expounding an opinion, invariably he had investigated and obtained the facts so that any position he put was firmly based in the reality of the situation. Gratuitous attacks upon opponents did not occur.

We all have much to learn from Michael.

The second example I wish to point out to you is a really remarkable man named John Hubert Plunkett. ⁵Plunkett was this State’s 4th Solicitor-General and 5th Attorney-General. He held the latter office for over 20 years. His was a life of immense contribution. Plunkett was also involved in:

(a) The grant of responsible government to NSW, and he served as the second President of the Legislative Council;

(b) The foundation of the University of Sydney, of which he served as ViceChancellor from 1865 to 1867;

(c) The foundation of St Vincent’s Hospital;

(d) Juries, on which he was essential in allowing emancipated convicts to serve;

(e) Public schools in this State – he was the first President of the National Schools Board, and

(f) Inaugural Council Member, St John’s College, University of Sydney.

Plunkett maintains most of his modern relevance for his role in prosecuting the perpetrators of the Myall Creek Massacre. The case involved the slaughter, in cold blood, of at least 28 unarmed indigenous Australians. Against public opinion at the time, he fearlessly prosecuted eleven of the perpetrators. ⁶A not guilty verdict followed initially after the jury had deliberated for “about a quarter of an hour”.⁷ Undeterred, Plunkett requested that the perpetrators be held in custody pending a second trial.⁸ He re-prosecuted seven of the perpetrators in front of a jury who were subject to immense intimidation. Guilty verdicts followed and the seven men were hanged.⁹

This was one of the very few times that those who committed atrocities in the early days of settlement in Australia were brought to justice. Plunkett made sure it was so. And doing so involved standing up in the public square, unafraid, and discharging his office to do what was right. One thing is certain – this action took courage.

That might have been enough. But Plunkett’s perhaps more lasting contribution came in respect of his opposition to sectarianism, and his promotion of tolerance in the early Colony of New South Wales. Plunkett was a Catholic and was one of the first Catholic holders of high office in the British Empire. Indeed, part of his motivation for emigration from Ireland to New South Wales was the hope of greater tolerance.

That was presumably his motivation when he stood in St Mary’s Cathedral on the evening of 4 August 1857. He called for liberty and tolerance. The laws of England “set class against class, and religion against religion”, Plunkett claimed. By contrast, in New South Wales, “instead of having any hostility against each other, we all run in the same race, and wish success one to another.”

Those were aspirational and enlightened sentiments then. It is a matter of some regret that they now seem to be aspirational once again, in light of perennial attacks from certain quarters at people of certain faiths.

Plunkett’s involvement in public debate could thus be characterised as defined by remarkable foresight and a genuine sense of charity towards all people. And he put such values into practice, ensuring that different religious denominations were treated equally by the State,¹⁰ and that the early educational institutions of this State were unmediated by religious tests for entrance, as had blighted the great English Universities.¹¹ If you were to get involved in public debates in this spirit, you would have nothing to fear.

To turn now to more mundane matters you might wish to consider before engaging in public debate, I refer to the Legal Profession Uniform Law Australia Solicitors Conduct Rules 2015. You will all be familiar with these as I imagine you had to suffer through courses about them. But they are important, and I want to emphasise why.

You should all be familiar with rule 3.1: A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. What this means is that you are not the mere mouthpiece for your client. Your duty to the Court prevails over your duty to your client. Your duty to the administration of justice is wide and designed to be so. In terms of legal drafting the word “paramount” is about as strong as it gets.

Equally, I am sure you are familiar with rule 4.2: be honest and courteous in all dealings in the course of legal practice and rule 4.4: avoid any compromise to [your] integrity and professional independence.

So much should be straightforward. There is a further rule, however, which I think throws up some more interesting issues. That is rule 5.1:

5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise, which—

5.1.1 demonstrates that the solicitor is not a fit and proper person to practise law, or

5.1.2 is likely to a material degree to—

(i) be prejudicial to, or diminish the public confidence in, the administration of justice, or

(ii) bring the profession into disrepute. (emphasis added)

The words I emphasised – “in the course of legal practice or otherwise” – are as broad as they are sound. And they are intended to be so. They reflect the immensely privileged position that lawyers occupy in the minds of the general public, and they recognise that this privileged position is not limited by the strict bounds of “legal practice”. In essence, they ensure that solicitors cannot use their professional status without the obligations that come with it. I should add that a similar rule applies to barristers.¹²

So, as a lawyer, you have the same rights as every other citizen to engage in political or public activities, but it is circumscribed by this professional obligation.

What does this obligation – not to bring the profession into disrepute – mean? It is not well defined in case law on the subject, presumably because the ways in which one could bring the profession into disrepute are limited perhaps only by one’s imagination. A recent case, however, instructively points out that breaching other rules repeatedly – such as failing to be honest and courteous, or compromising your independence and integrity – can amount to bringing the profession into disrepute.¹³

As another case noted, “the use of insulting language or behaving offensively towards members of the public is not conducive to the maintenance of the good name of the profession”.¹⁴ If only such rules applied to all on Twitter.

The Court went on to note that, while free speech was (obviously) a paramount virtue, it was:

not inconsistent with those rights to place limits on professional behaviour, provided, such limits are compatible with a solicitor’s duty to his or her client, to the Courts and the public and can be justified in a free and democratic society.¹⁵

As you engage in public debates then, your touchstone should be whether you are promoting that “free and democratic society” of which the Court spoke. The contributions of Michael O’Dea and John Hubert Plunkett certainly did so. In my experience, contributions such as ad hominem attacks and blind partisanship tend not to be so.

On that note, can I leave you with four points that might guide you on the way. I suggest that it should generally be very easy to stay within the rules, but the circumstances in today’s polity makes this much harder.

(a) First, an opinion must have a basis in fact or legal principle. There is no right to make baseless assertions, especially where those assertions impugn the character or motives of others. There is a real contest in the world today between the truth and the lie. As a legal professional you cannot involve yourself in lies, half-truths or obfuscations. The fact that you may be advocating for something you think is right does not permit conduct or behaviour contrary to the Rules. The means does not satisfy the end.

(b) Second, opinion must be expressed in a way befitting the profession you are a member of. That is, after all, the effect of the Rules.

(c) Third, the art of persuasion should be learnt and practised with great courtesy. You will find that not only does it make you a better person, but it will also make you a better advocate.

(d) Fourth, remember it is always easy to be a critic. There is always plenty of room for the critic in the cheap seats. Remember, it is not the critic that counts, as a famous speaker once said.16 The honour accrues to the person in the arena taking part. If you want to make a genuine contribution, you should advocate solutions. In my experience, these people tend to garner support.

If you do participate in public debates, expect to be challenged and even personally criticised. Take it in good humour. If you are sure of your position do not be bullied out of it. Rather, gain support by the strength of your argument and by the way you conduct yourself.

Can I finish where I started, which was to encourage you all to get involved in public debates? You have all had the immense privilege of attending a university as fine as this one. You will have a higher degree that will arm you with knowledge not generally existent in the broader community. You should not let this institution down, and I hope the ‘guardrails’ I have suggested tonight will help you along the way. I wish you every success in your future endeavours.

In principio erat verbum. Thank you.

[1] I acknowledge the assistance of Mr J Lerner BA LLB (Hons) in the research and drafting of this speech.

[2] Today’s Tyrants, the Kapunda Press 2018, Chapter 8, p 100.

[3] Op cit, p 99

[4] The Hon Justice AS Bell, ‘Admission of Lawyers’ (Speech, Newcastle, 24 February 2023)

[5] As to whom, see generally John N. Molony, An Architect of Freedom (Australian National University Press, Canberra, 1973)

[6] R v Kilmeister (No 1) [1838] NSWSupC 105.

[7] Ibid.

[8] Lyndall Ryan, “a very bad business”: Henry Dangar and the Myall Creek Massacre 1838 at 14:

[9] R v Kilmeister (No 2) [1838] NSWSupC 110.

[10] See Church Building Act 1836 (NSW).

[11] See, e.g. Sydney University 1850 (NSW) recital; Sydney Grammar School Act 1854 recital.

[12] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 8(a) and 8(c).

[13] Council of the New South Wales Bar Association v de Robillard [2021] NSWCATOD 207, [242].

[14] Solicitor’s Statutory Committee (15 July 1987) in Law Society of New South Wales re Constantine Karageorge (Karageorge) cited in Lander v Council of the Law Society of the ACT [2009] ACTSC 117, [35].

[15] Lander v Council of the Law Society of the ACT [2009] ACTSC 117, [38].

[16] Citizen in a Republic delivered by President Theodore Roosevelt at the Sorbonne, Paris, 23 April 1910. Often referred to as the ‘Man in the Arena’ speech.