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Three Law Deans — and what they Teach of Deanship

Published online by Cambridge University Press:  01 January 2025

Michael Kirby
Michael Kirby*
Affiliation:
Justice of the High Court of Australia (1996-2009). Distinguished Visiting Fellow (ANU)
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Abstract

In this article, the author honours three former Deans of Law of The Australian National University: Jack Richardson, Harry Whitmore, and Michael Coper. His remarks are derived from three speeches he gave in 2012: the 2012 Harry Whitmore Memorial Lecture, the 2012 Jack Richardson Memorial Lecture, and an address to The Australian National University's 2012 Law Alumni Dinner on the occasion of the retirement from the Deanship of Michael Coper. Jack Richardson and Harry Whitmore were pioneers of Australian administrative law. Michael Coper, a constitutional lawyer whose views were shaped by his family's direct experience of Nazism, served as Dean for a record term of 15 years. The author reflects on the life stories of these three Law Deans, and derives some conclusions on the nature of the office of Dean of Law in a modern Australian University.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 3 , September 2014 , pp. 589 - 610
Copyright
Copyright © 2014 The Australian National University

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References

1 Kirby, Michael, ‘The Reasons for Administrative Reasons: Osmond revisited’ (Speech delivered at the Council of Australasian Tribunals 2012 Harry Whitmore Memorial Lecture, Federal Court of Australia, Sydney, 3 May 2012).Google Scholar

2 Kirby, Michael, ‘Jack Richardson: The First and Perfect Ombudsman’ (Speech delivered at the Australian Corporate Lawyers’ Association and DLA Piper Lawyers 2012 Jack Richardson Memorial Lecture, National Portrait Gallery, Canberra, 12 September 2012).Google Scholar

3 Kirby, Michael, ‘Michael Coper, Law and Transition’ (Speech delivered at The Australian National University Law Alumni Dinner Address 2012, National Portrait Gallery, Canberra, 20 November 2012).Google Scholar The first two of these three speeches may be found at <http://www.michaelkirby.com.au/images/stories/speeches/2000s/2012>.

4 There have of course been many other eminent ANU Law Deans, including Harold Ford, Patrick Atiyah, Leslie Zines, Douglas Whalan, Don Greig, David Hambly, Dennis Pearce, and Tom Campbell. It is hoped that, in the future, tributes to them and other leading legal scholars will be published.

5 Constitutional Alteration (Aboriginals) 1967 (Cth). See Blackshield, A R and Williams, G, Australian Constitutional Law and Theory (Federation Press, 3rd ed, 2002) 1306.Google Scholar

6 The proposal achieved amendments to s 51 (xxvi) of the Constitution as well as deleting s 127.

7 Cf Richardson, J E, ‘Reform of the Constitution: The Referendums and Constitutional Convention’ in Evans, G J (ed), Labor and the Constitution 1972-5 (Heinemann, 1977), 76.Google Scholar

8 Garran, Robert, Prosper the Commonwealth (Angus & Robertson, 1958) 139.Google Scholar

9 Commonwealth, Administrative Review Committee Report, Parliamentary Paper No 144 (1971); Commonwealth, Final report of the Committee on Administrative Discretions, Parliamentary Paper No 317 (1973). See also Cole, R W ‘The Public Sector: The Conflict between Accountability and Efficiency’ (1988) 47 Australian Journal of Public Administration 223, 224.CrossRefGoogle Scholar

10 Commonwealth Ombudsman, Annual Report (2010-2011) <http://www.ombudsman.gov.au/pages/publications-and-media/reports/annual/ar2010-11/forward.html#professor-jack>.

11 Part V (ss 47-58). The composition of the ARC is set out in s 49 of the Act.

12 His appointment and the earlier establishment of the ARC were noted in (1997) Reform 34.

13 Typical of his insightful analysis was his examination of ‘defective administration’ and of what conduct is ‘unreasonable or unjust’. See Commonwealth Ombudsman, 3rd Annual Report 1979-80 (AGPS, Canberra 1980), 18-19.

14 Commonwealth Ombudsman, ‘Minister pays tribute to Australia's first Ombudsman, Professor Jack Richardson’ (Media Release, 27 June 2011) <http://www.ombudsman.gov.au/media-releases/show/182>

15 At this point of his Richardson Lecture, the author went on to discuss the history of the early days of the Administrative Review Council: see above n 2.

16 A case in point is the long saga of efforts to open up marriage to sexual minorities: Commonwealth v Australian Capital Territory (2013) 250 CLR 441.

17 Mason, A F, ‘The Kerr Report of 1971: Its Continuing Significance’, (Speech delivered at the Harry Whitmore Lecture, Sydney, 19 September 2007).Google Scholar

18 Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447.

19 Kirby P and Priestley JA; Glass JA dissenting.

20 Public Service Board of NSW v Osmond (1989) 159 CLR 656. See Taggart, M, Osmond Judicial Review of Administrative Action in the 1980s – Problems and Prospects (Oxford University Press 1986) 53.Google Scholar

21 Pettitt v Dunkley [1971] 1 NSWLR 376.

22 See, eg, R. v Secretary of State for the Home Department; ex-parte Doody [1994] 1 AC 531.

23 See, eg, Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817; Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3. See also Oriental Daily Publisher v Commissioner for Television and Entertainment Licensing Authority, HKCFA, 25 November 1998.

24 Kirk v Industrial Court (NSW) (2010) 239 CLR 531,577 [83]. The majority of the Court there observed that, in at least some cases, the failure of an administrative tribunal could constitute failure to exercise jurisdiction inviting relief under traditional principles of judicial review.

25 Mason, A F, ‘Democracy and the Law: The State of the Australian Political System’ (2005) 43 Law Society Journal 68, 60.Google Scholar

26 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 503-4 [70] per Kirby and Callinan JJ.

27 D Harding, ‘Professor Harry Whitmore’ (1982) 5 University of New South Wales Law Journal, 189.

28 Mason, above n 17.

29 Campbell, Enid and Whitmore, Harry, Freedom in Australia (Sydney University Press, 1966).Google Scholar See Harding, above n 27, 190.

30 Which A V Dicey had suggested was a feature of civil law but not of common law countries. See Dicey, A V, The Law of the Constitution (Macmillan, London, 1959), 328.Google Scholar

31 Whitmore, H, ‘Australian Administrative Law – A Study in Inertia’ (1963) 36 Australian Law Journal, 255.Google Scholar For a later perspective, see Whitmore, H, ‘Administrative Law in the Commonwealth: Some Proposals for Reform’ (1972) 5 Federal Law Review, 7.CrossRefGoogle Scholar

32 Benjafield, Robert, Principles of Australian Administrative Law (Law Book Company, 1966)Google Scholar

33 Mason, above n 17.

34 Ibid 2.

35 Cole, W, ‘The Public Sector: The Conflict between Accountability and Efficiency’ (1988) Australian Journal of Public Administration, 223.Google Scholar

36 Administrative Appeals Tribunal Act 1975 (Cth), s 22(1); Administrative Decisions Judicial Review Act 1977 (Cth), s 13(1).

37 Mason, above n 17, 5 citing Willheim, E, ‘Recollections of an AG's Department Lawyer’ (2001) 8 Australian Journal of Administrative Law 151, 162.Google Scholar

38 At this point of his Whitmore Lecture, the author went on to discuss Osmond's Case and the long and contentious history of the duty to give reasons: see above n 1.

39 Yeats, WB, ‘He Wishes for the Cloths of Heaven’ in Yeats, WB, Collected Poems (Macmillan, 2nd ed, 1982) 81.Google Scholar

40 Coper, Michael, ‘Opening Remarks’ (Speech delivered at Dinner to Mark 60th Anniversary of the Commencement of the Nuremburg War Crimes Trials, Canberra, 19 November 2005).Google Scholar

41 Mary Coper (Fritz's wife and Michael's mother), Something to Remember Me By (unpublished memoir, 1986 & 1994) 33.

42 Buergenthal, Thomas, A Lucky Child – A Memoir of Surviving Auschwitz (Profile Books, 2007), 2Google Scholar (original: Ein Glückskind) (Fischer Verlag 2007).

43 Coper, above n 40, 3.

44 Obituaries: Mary Coper, Sydney Morning Herald (Sydney), 20 February 1999, 88.

45 Ibid 3. Curiously, however, he continued to listen to the music of Richard Wagner on recording and on the radio, resolving the dilemma posed by Wagner's anti-Semitic writings, and the use to which they were put by the Nazis, in the same way as Stephen Fry: see Fry, Stephen, Wagner and Me (Wavelength Film Productions, 2010), <http://www.wagnerandme.com/Wagner_%26_Me/About.html>; <http://www.imdb.com/title/tt1683519/>.Google Scholar

46 Ibid 3-4.

47 The word was used in a conversation with the author. For the author's own experience, see Kirby, M D, ‘The Graduating Class of Sydney Law School 1962 – Talented, Lucky, Unquestioning’ (2012) 36 Australian Bar Review, 189, 193.Google Scholar

48 Kirby, M D, ‘A.R. Blackshield and Australian Constitutional Realism’ (2013) 11 Macquarie Law Journal 7Google Scholar (inaugural Blackshield Lecture, Macquarie University, 19 October 2012).

49 Including Jacobs J. Mason CJ, Murphy J, Deane J, Gaudron J, Gummow J, Gleeson CJ and the author. Irving, H, Mowbray, J and Walton, K (eds) Julius Stone: A Study in Influence (Federation Press, 2012).Google Scholar

50 Indian Constitution, Art 301. See, eg Automobile Transport (Rajasthan) Ltd v State of Rajasthan [1963] SCR 49, 521 per Das J citing Duncan v State of Queensland (1916) 22 CLR 556, 573 per Griffith CJ. See also [1963] SCR 491 at 545 per Subba Rao J and at 575 per Hidayatullah J. Cf The State of Bombay v R.M.D. Chamarbaugwala [1957] SRC 874 at 906-907, per Das CJ.

51 Coper, Michael, ‘Freedom of Trade in India and Australia: Introductory Thoughts on the Nature of Judicial Choice’ (1970) 10 Jaipur Law Journal 1-37.Google Scholar

52 Marion Dixon, 30 Up – The Story of the UNSW Law School 1971-2001 UNSW, Sydney 2001, 9,83, 108, 115.

53 R F French, at UNSW 40th Anniversary Dinner, 2012. The seven original appointees were Dean Hal Wootten QC, Professor Garth Nettheim, Professor G Garbesi, Mr A R Blackshield, Mr M Coper, Mr Richard Chisholm and Dr R Hayes.

54 He was the youngest invited speaker at Gareth Evans’ major conference in 1976 following the dismissal of the Whitlam Government in 1975: see Evans, G (ed), Labor and the Constitution 1972-1975 (Heinemann, 1977).Google Scholar

55 Encounters with the Australian Constitution (CCH Australia, 1987), reviewed by me at (1987) 10 UNSW Law Journal 280. See also Coper, M, Freedom on Interstate Trade under the Australian Constitution (Butterworths, 1983).Google Scholar And in the 1990s see Coper, M and Williams, G (eds), How Many Cheers for Engineers? (Federation Press, 1997)Google Scholar; Coper, M and Williams, G (eds) Power, Parliament and the People (Federation Press, 1997)Google Scholar. He also published several books on the decisions of Justice Lionel Murphy: Blackshield, T, Brown, D, Coper, M and Krever, R (eds) The Judgments of Justice Lionel Murphy (Primavera, 1986)Google Scholar; Coper, M and Williams, G (eds), Justice Lionel Murphy, Influential or Merely Prescient? (Federation Press, 1997).Google Scholar

56 (1988) 165 CLR 360. He was led by Keith Mason QC SG and R Sackville.

57 T Blackshield, M Coper and G Williams (eds) The Oxford Companion to the High Court of Australia (Oxford University Press2001).

58 Ibid 108-9.

59 M Coper, F Wheeler and J Williams, ‘The Private Life of a Public Institution: Oral History and the High Court of Australia’, XVI International Oral History Conference, Between Past and Future: Oral History Memory and Meaning, Prague, Czech Republic, July 2010 (unpublished conference paper).

60 Michael Coper, ‘Law Schools and Legal Education: What is Really Important?’, Plenary Keynote, Australasian Law Teachers Association (ALTA) Annual Conference, Legal Education for a Globalised World, University of Sydney, July 2012; <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2132209>; <http://www.youtube.com/watch?v=DMiK1y9k6ao>.

61 Coper, Michael, ‘My Top Ten Tips for Good Deaning’ (2012) 62 Journal of Legal Education 70-80; <http://www.swlaw.edu/pdfs/jle/jle621coper.pdf>.Google Scholar

62 Dellora, Daryl, Michael Kirby: Law, Love & Life (Penguin Viking, 2012)Google Scholar; Kirby, Michael, A Private Life: Fragments, Memories, Friends (Allen & Unwin, 2011).Google Scholar

63 At the end of the Alumni Dinner Address, the author discussed the appointment to the High Court of Australia of the Court's 50th and newest Justice, The Honourable Patrick Keane, that appointment having been announced that very day: see above n 3.

64 Al-Kateb v Godwin (2004) 219 CLR 562, 611 [135] , per Gummow J ,t 577 [20], per Gleeson CJ , and at 617 [153], per Kirby J . Cf 584 [46] per McHugh J, 643 [241] per Hayne J, and 659 [291], per Callinan J. See also Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1.

65 Fardon v Attorney-General (QLD) (2004) 223 CLR 574, 645 [188], per Kirby J ).

66 Richard Grunberger, A Social History of the Third Reich, quoting from the Hamburger Fremdenblaat, 6 June 1943.

67 Thomas v Mowbray (2007) 233 CLR 307, 411-413 [297]-[303]. Per Kirby J; 453-459 [427]–[443], and per Hayne J.

68 Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 195.

69 Thomas v Mowbray (2007) 233 CLR 307, 484 [530] per Callinan J. Cf(2007) 233 CLR 307, 422 [386] per Kirby J. (‘I did not expect that, during my service, I would see the Communist Party case sidelined, minimised, doubted and even criticised and denigrated in this Court’). See also Kirby, M D, ‘Australian Law after 11 September 2001’ (2001) 21 Australian Bar Review 253.Google Scholar

70 Kirby, M D, ‘The Rule of Law Beyond the Law of Rules’ (2010) 33 Australian Bar Review 195.Google Scholar

71 Mabo v Queensland [No.2] (1992) 175 CLR 1 at 42, per Brennan J. (Mason CJ and McHugh J concurring).

72 Kirby, M D, ‘Judicial Stress and Judicial Bullying’ (2013) 87 Australian Law Journal 516, 524.Google Scholar

73 Kirby, M D ‘J.L Goldring, Legal Education and a Most Unusual Occupation’ (2014) 38 Australian Bar Review 120.Google Scholar This is a further memorial lecture by the author on an Australian Law Dean (University of Wollongong), delivered on 18 October 2013. Professor Goldring was earlier recruited as a lecturer in law at the ANU (1972-77). He instituted surveys on the social background of Australian law students.

74 Kipling, Rudyard, ‘A School Song’ in Prelude to Stalky & Co (Macmillan, 1899).Google Scholar