The office of New South Wales Solicitor-General is a life appointment. May Michael Sexton continue to hold it for as long as he finds it fulfilling and may he continue to publish books as readable and compelling as his recent memoir
Michael Sexton SC (left) has been the Solicitor-General of New South Wales since 1998. It is therefore fitting he should devote the first chapter of his memoir, On The Edges of History, to a description of what that office involves. Mary Gaudron held that same office before her appointment to the High Court in 1986 and Sexton quotes her as saying of the position, “It’s the best job going in the law”—an opinion Sexton is prepared to endorse, having been persuaded by it into accepting the appointment. He admits that not everyone in the legal world welcomed his appointment, as he had been at the Bar for only fourteen years. Furthermore he “had also been an academic and a writer—not a traditional path to this post”.
As the principal adviser to the New South Wales government Sexton is required to represent it in litigation before the High Court, the Federal Court and the New South Wales Court of Appeal. As for High Court appearances he has this to say even of cases where all states are represented and of the same mind:
Such consensus at the Bar table does not, however, make the judges of the High Court any easier to confront. On major cases all seven judges sit, often interrupting each other to fire questions at the barrister standing below at the lectern in the centre of the long Bar table. That lectern is one of the loneliest spots in the legal world. It revives all the terrors of the classroom; experienced silks can be reduced to incoherence under this onslaught. The number of judges that normally sit in any other appeal court is three; the High Court can be by far the most intimidating forum in the country.
I found this observation very depressing. The great Sir Owen Dixon, appointed to that Court in 1929 and its Chief Justice from 1952 to 1964, strongly disapproved of that style of judicial interrogation and tried as best he could to discourage it. How sad it is that his example has been so conspicuously disregarded!
Another arresting statement is worth quoting:
What I found striking, however, in the job of Solicitor-General, where I could not help being aware of the prevalence of crimes, like housebreaking and street assaults, that most affected ordinary members of the community, was that many—not all—members of the legal profession and law schools refused to admit these facts.
Sexton’s elaboration of this statement makes dismal reading. I leave it at that, realising that this does scant justice to this chapter as a whole. Another interesting chapter, “Crime and Punishment: Counsel for the Prosecution”, describes his experience—unusual for a Solicitor-General—in being involved “in the appeal courts rather than at the original trial, in some of the most sensational criminal cases in New South Wales in recent decades”.
The families of both of Sexton’s parents, in his words, “represented the story of Irish migration to Australia in the middle of the nineteenth century”. The Sextons hailed from County Clare on the west coast of Ireland. I can trace one of my lines of descent from that same county but my antecedents were Church of Ireland. One of Sexton’s great uncles on his father’s side was one of 238 settlers who in July 1893 joined William Lane’s expedition to found the colony of New Australia in Paraguay. He did not sojourn there for long. But the rest of his family’s disposition to be footloose ended with their arrival in Victoria. Not so in the case of the author!
Sexton was the only child of a father and mother aged respectively forty-five and almost forty-four when he was born on September 24, 1946. He gives an interesting account of his childhood and youth. Although his parents sent him to Roman Catholic schools in Melbourne, their religious observance, while steadfast, was less fully committed than that of others of that communion. His father, a lawyer in the Commonwealth Public Service, as Sexton recounts, “had been asked to become involved with the Movement but had resisted”. Sexton emerged from his secondary schooling as something of a swot and a skilled debater and wasted no time in engaging in controversy as an opponent of the Democratic Labor Party and of Australia’s commitment to the defence of South Vietnam. Among others, he took on the Rev. Eric Darcy, spiritual adviser to the Movement and a future Archbishop of Hobart. Sexton and Darcy were subsequently thrown together as tutors at Newman College after Sexton had graduated as a Bachelor of Laws with Honours.
Towards the end of 1970, shortly after he had been admitted to practise, Sexton received an invitation which diverted him from his proposed course of admission to the Victorian Bar. And not for the last time! He was appointed associate to Sir Edward McTiernan, who had been appointed to the High Court in 1930 and became its Senior Puisne Justice in 1952. That venerable judge, then aged seventy-eight, was based in Sydney. This appointment gave Sexton “the opportunity to see the country’s best advocates arguing all the major cases before the court”. At the same time he was highly critical of decision-making in that jurisdiction. As he put it in a book he co-authored in 1982, The Legal Mystique, and which he quotes in this book: “After tolerating and encouraging the maximum inefficiency in the presentation of a case the High Court then compounds this by the way it goes about producing a decision.” He is prepared to acknowledge some improvement since he made that criticism but “[t]here is still … too much over-lengthy and repetitious oral argument by some barristers”.
Sexton records that towards the end of 1971 he was ready to leave the brash environment of Sydney and return to Melbourne but Sir Edward asked him to remain his associate for another six months and join him on a visit to London where he was to sit on the Judicial Committee of the Privy Council. Sexton records:
Amongst the cases upon which McTiernan sat as a judge were a number of appeals from murder trials in the West Indies and Hong Kong. Despite the abstruse legal arguments, conducted by members of the English Bar in Oxbridge accents, these were life and death decisions. A sentence of hanging had been imposed after the guilty verdict and would be carried out unless the appeal was successful. This was an early lesson that, even in the most important cases, a court can usually decide quite plausibly for either side and it is often a small point that tips the result in one direction or another.
There followed a great deal of inter-continental travel which is vividly described. One stop-over was Munich at the time of the Black September attack on the Israeli quarters in the Olympic village. When he returned to London, contemplating once again a return to Melbourne, a letter was waiting for him from the University of Virginia offering him a place in its law school to do a master’s degree and some scholarship funds as well. Sexton accepted the offer in the knowledge that this might be the “last chance to pick up the threads of life in Melbourne”.
Sexton graduated LLM from the University of Virginia, but the wonder is that he achieved this, given his racy account of his doings apart from the purely academic. A job was organised for him in the Washington headquarters of a prominent union. I am not sure that he quotes J.F. Kennedy correctly in describing Washington as “a city of northern efficiency and southern charm”. Rather I believe the statement was “a city of northern charm and southern efficiency” and that could not have been intended as a compliment. But few would disagree with Sexton that it is a city of great beauty. As a distraction, this was also the summer of Watergate. And there were visits to Philadelphia and New York and much travelling throughout the country.
In 1974 Sexton decided to return to Australia but his journey took several months travelling to London and then to Cairo to make an overland journey through Iran, Afghanistan, Pakistan and India. He recorded:
While sitting in a café in Calcutta, I read an article in an English newspaper about the Whitlam government. Canberra sounded like a place of high excitement. And the government sounded like a complete shambles. Both turned out to be right.
Sexton’s first base in Canberra was the Attorney-General’s Department in a section of the Advisings Division which was considered to have the department’s best and brightest lawyers. He found himself out of sympathy with his superior officer and highly critical of the department’s procedures. Nearly a decade later a future Liberal deputy leader, Neil Brown QC, a minister in the Fraser government who acted as Attorney-General for three months, registered the same criticisms and expounded them to the Prime Minister. Sexton’s lengthy quotation of Brown’s views left me wondering if much has changed since. In this atmosphere Sexton once again contemplated returning to Melbourne to practise at the Bar, but Lionel Murphy’s appointment to the High Court “had a large, if unintended, impact” on his life.
Murphy’s successor as Attorney-General, Kep Enderby, invited Sexton to join his personal staff—“the start of an exciting year but not a very smart career move” because he was “now regarded by the department with suspicion bordering on hostility”. I have to admit that I found the chapter dealing with this episode more fascinating than the others, as its title should attest: “The Great Crash: Inside the Whitlam Government”. In passing I should mention that in 1979 Sexton published a book, Illusions of Power: The Fate of a Reform Government, which was reissued in 2005 as The Great Crash: The Short Life and Sudden Death of the Whitlam Government. Yet this chapter loses nothing in drawing heavily on these books and also on Sexton’s chapter, “The Dismissal”, in The Whitlam Legacy (2013) edited by Troy Bramston.
Sexton writes with affection of Kep Enderby; not so of Gough Whitlam, who emerges from this chapter and others in this book with a less than certain grandeur. While Sexton deals severely with the sustained opposition to the Whitlam government’s reforms by organised interest groups, non-Labor state governments and a hostile Senate, he is prepared to concede that during his time in Canberra, “[m]any of the government’s failings were of its own making”. While in the Attorney-General’s office he found that there “were certain to be plenty of interesting and sensitive matters coming across my desk”, this flow was against a bleak background. As he put it, “By the middle of 1975 the government’s position was parlous.”
Although Sexton saw quite a bit of the Secretary of the Attorney-General’s Department, Clarrie Harders, one identity who from his account seems not to have crossed his path was the Solicitor-General, M.H. (later Sir Maurice) Byers QC for he is mentioned not once. Sexton does mention that Enderby “never made any reference to ASIO affairs”. So there is no reference to a matter discussed by Dr John Blaxland in The Official History of ASIO 1963–1975. Enderby passed on to a Canberra Times journalist, Jack Waterford, a number of telephone interception documents which ASIO’s Director-General had provided him, together with brief notes of the reasons in each case.
And this brings us to the blocking of the Budget in the Senate by the coalition parties and the dismissal of the Whitlam government. Sexton identified a problem for Fraser and the coalition parties in the absence of “precedents to suggest what might happen if the government refused to call an election”. Sexton then asked: “Why not wait eighteen months until there would be an election anyway?” I shall return to that consideration later. But the statement on precedents was the closest Sexton would come to acknowledging that Whitlam’s response to the denial of Supply was without precedent, as Whitlam must surely have been aware. Sir John Kerr emphasised this in an article in the Bulletin, September 3, 1985, which is worth quoting at some length:
The government of the country must go on. It cannot go on without supply appropriated by parliament. Therefore a government denied supply must either resign or go to an election. This must follow regardless of which house denies supply.
In 1975 there was nothing new in this. The right of the Senate to deny supply and the fact that the necessary consequence of this was resignation of the government or an election were made clear on many occasions before 1975.
Mr Whitlam himself on several occasions before September-October 1975 had, either implicitly or explicitly, acknowledged this.
He did this:
• In 1958 and 1959 in signing the Report of the Joint Parliamentary Committee on Constitutional Review.
• In June 1970 in debate on the States Receipt Duty (Administration) Bill.
• In August 1970, when the ALP, under Mr Whitlam’s leadership, decided to vote against the budget in the Senate to try to force the Gorton government to an election (this failed because the Democratic Labor Party did not vote with them).
• In his campaign opening speech for the 1970 half-Senate election.
• In April 1974 in the House of Representatives.
• In his letter in April 1974 seeking a double dissolution after the Senate had made it clear supply would be denied to force such an election.
• In his foreword to the 1975 parliamentary paper in which that letter was printed.
• In March 1975 when he said that “if there is again a refusal of a supply bill there will certainly be an election”.
• In his various comments to me before September 1975 such as on August 25 at Admiralty House—to the effect that if supply were denied there would be an election in December.
It is beyond doubt that in 1970, Mr Whitlam had accepted, and in 1974 acted upon, the principle that the Senate could deny supply and that a government must then resign or go to an election. This was not questioned at the time by academics, politicians or journalists. By September-October 1975, Mr Whitlam had changed his tune. So had some of his supporters. But the Constitution, which I had a duty to execute and maintain, had not changed.
An important detail relating to the 1975 constitutional crisis has receded in the consciousness of many commentators. It is simply this. Bill Hayden as Treasurer presented the Appropriation Bills which comprised the 1975 Budget to the House of Representatives on August 19. On August 21 Malcolm Fraser as Leader of the Opposition announced that the coalition parties were prepared to allow those Bills to pass through Parliament. And this was despite the fact that the appointment of Albert Field to fill a Senate casual vacancy on September 9 had given the Opposition senators the numbers to defer consideration of those Bills. On the face of it then, Fraser was content to wait until the Parliament ran its course and victory seemed assured. There was a saving clause about extraordinary and reprehensible circumstances justifying a reversal of that position.
Then on October 10 the High Court, dividing four-to-three (McTiernan, Mason, Jacobs and Murphy, with Barwick CJ and Gibbs and Stephen dissenting), upheld legislation providing for the Australian Capital Territory and the Northern Territory to be represented in the Senate by two senators each. It is widely believed that this case was wrongly decided. This decision threw the Opposition into something of a panic over electoral concerns. In the Court’s decision Lionel Murphy’s judgment was vital in securing a majority. Some argued, persuasively in my view, that he should have recused himself because of his close involvement in that legislation as Attorney-General. Had he done so the Court would have divided evenly with the Chief Justice’s casting vote yielding a majority four-to-three invalidating that legislation. In that event Fraser and the opposition parties might well have stuck by the original decision to allow the Appropriation Bills to pass through the Senate.
On May 18, 1974, an election for both houses was held pursuant to a double dissolution which was granted in conditions already described. On that same date four referendum proposals were put to the electors and rejected. There is one proposal I would emphasise as a clear indication of the Whitlam government’s intentions. Misleadingly titled Democratic Elections, it continued: “An Act to alter the Constitution so as to ensure that the Members of the House of Representatives and of the Parliaments of the States are chosen directly and democratically by the People”. The vital issue was that electoral boundaries were to be drawn not on an equality of electors but of population. In this way an electoral malapportionment strongly favouring the Labor Party would have been entrenched in the Constitution if that referendum proposal had been carried. It is hardly surprising that the coalition parties suspected the Whitlam government of attempting to achieve a comparable malapportionment by ordinary legislation. A Bill for the redistribution of electoral boundaries was twice rejected by the Senate because the Opposition parties were satisfied that the legislation was so skewed in Labor’s favour as to prevent the coalition parties from winning the next election even with a comfortable majority of the two-party-preferred vote.
The High Court’s decision on the territories senators alerted the Opposition to certain risks affecting any election called for half the Senate before July 1976. In such an election the newly elected territories senators would take their seats immediately the results were posted while the newly elected senators from the states would not do so until July 1976. The coalition parties feared that if the four senators, instead of dividing two-to-two for Labor and the coalition, might divide three-to-one in Labor’s favour if as they feared the maverick Liberal John Gorton who perversely announced his readiness to support the twice-rejected redistribution was elected as one of the ACT’s senators. In this way the Whitlam government would be given a temporary Senate majority until July 1976, enabling them to pass their redistribution. It was for that reason that the coalition parties decided to deny Supply in the Senate when the Appropriation Bills were introduced there on October 16. Their strategy was to force an election for the House of Representatives on the existing boundaries and to avoid an election for half the Senate alone at all costs. Rex Connor’s resignation on October 14 after the loans affair resurfaced provided the coalition parties with the extraordinary and reprehensible circumstances to justify their decision to deny Supply.
In the second week of October a statement had been issued by four of the country’s leading professors of constitutional law who argued that the rejection of the budget bills by the Senate “would be likely to do irreparable damage to the parliamentary system as we have known it” and “would be an act which future generations would have cause to regret”. This was one of the early shots in the propaganda war but it received a great deal of publicity. The shadow Attorney-General, Senator Ivor Greenwood, placed a lengthy question on the Senate notice paper, seeking information from the Attorney-General as to who had prepared the letter and who had paid the costs of sending it around the country to be signed by the various academics. The answer was that I had organized the statement and the relatively minor costs of circulating the document had been met by the government. There was nothing improper in this but I was not looking forward to being in the spotlight when the information was provided and seeing Enderby, who had not been involved, possibly embarrassed. Greenwood’s question was never to be answered.
Sexton was obliquely to get a guernsey in Sir John Kerr’s Bulletin article (quoted above) with his reference to academics who seemed untroubled by Gough Whitlam’s numerous acknowledgments of the Senate’s power to force an election by denying Supply and “the irreparable damage to the parliamentary system” he might have inflicted if his past attempts to force an election by that very method had proved successful.
Sexton’s appointment to Enderby’s private office ceased when Enderby ceased to be Attorney-General on Remembrance Day 1975. Rather than return to the Attorney-General’s Department, where he sensed he would be unwelcome, Sexton accepted a lecturing appointment at the University of New South Wales Law Faculty where he arrived in the middle of 1976 at the very time I went to London on a six-month sabbatical from the UNSW School of Political Science. Appointed a Lecturer, he was promoted to Senior Lecturer in 1979, and abandoned full-time academic life in 1984 when he was called to the Sydney Bar. So he was finally claimed by that brash hoyden of a metropolis which he had frequently compared so unfavourably to his native Melbourne. One is tempted to ask how his career would have been favoured if he had not been distracted so many times from his intention to return to Melbourne.
The dismissal of the Whitlam government in 1975 has been kept alive, as the recent publication The Dismissal, by Paul Kelly and Troy Bramston, attests. In my judgment their book, which Professor David Flint reviewed in Quadrant in January-February 2016, is gravely flawed, but that has not prevented it from being widely welcomed by the Whitlam cheer squad.
Sexton was involved in an anti-Kerr demonstration in August 1976. He joined twenty or so young lawyers who attended the annual luncheon organised by the Sydney University Law Graduates’ Association to be addressed by the Governor-General. Sexton and his fellow disaffected staged a walk-out when Sir John rose to speak. The incident received front-page treatment in an evening newspaper and a furious Sydney Morning Herald editorial the following day. Sexton recounts that twenty years later “there were still members of the judiciary and other lawyers who held this against me”.
Sir Anthony Mason’s role in advising the Governor-General comes in for some criticism which to my taste is extravagant. Sexton, in outlining Mason’s conduct, dismisses it as “extraordinary” and “a clear abuse” of his “position on the High Court” and as constituting “a complete confusion about judicial functions and responsibility”. Readers of Quadrant might form a different view. I refer them to the June 2013 issue at pages 77 and 78 for the quoted contributions to this debate by Professor Don Markwell and Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney. Professor Markwell declared: “a Chief Justice—State or Commonwealth—has given advice on almost every major exercise of the reserve powers in Australia this [past] century”. And Professor Twomey:
Not only was it not “unprecedented” or “unconventional” for a High Court judge to have advised a vice-regal representative on the extent of his or her powers back in 1975, but it is actually quite hard to find an occasion when judges have not been involved in advising on the reserve powers.
The Governor-General’s dismissal of the Whitlam government was not contested in the High Court and there was not the remotest possibility that it would be. The vice-regal exercise of a discretionary power is non-justiciable. Sir Anthony Mason’s advice should be judged solely on its quality, which was far superior to the truly lamentable advice the Governor-General received from the Whitlam government, principally from the Solicitor-General. Still, adding one more identity to demonise to Sir John Kerr and Sir Garfield Barwick has been wholly in character given the predilection of Whitlam’s claquers and partisans.
On settling in Sydney in 1976 Sexton involved himself in Labor politics in his local branch in Clovelly. This branch was one of about a dozen in the federal electoral division of Phillip which the Liberals had held from 1958 to 1961, from 1963 to 1972, and from 1975 to 1983. He gives a vivid description of “the way that the factional system operated in the Sicilian world of the NSW Labor Party”—a system dominated by the Centre Unity Group loosely categorised as right-wing and the Steering Committee acknowledged as left-wing. Most branches in Phillip were dominated by the Steering Committee. When in the first half of 1982 pre-selections were organised for Labor candidates in federal seats, Sexton made a decision, which years later still seems puzzling to him, to contest the pre-selection for Phillip as a candidate unaligned with either faction. This meant challenging the unsuccessful candidate in the 1980 election, Jeanette McHugh, who was running again with the backing of the Steering Committee. As Sexton recounted, he thought she was not a strong contender:
There was an element of bloody-mindedness in standing against someone I thought had little to contribute to public life. This was an expensive self-indulgence. I at once exposed myself to enormous hostility from a large section of the Labor Party in New South Wales.
It was a stiff price to pay for being defeated in the pre-selection ballot by 184 votes to 74. The rest of the chapter includes an account of how he fared subsequently. He accepted that his prospects of being pre-selected for a winnable seat were abysmal but he forged an alliance with Bob Carr which in the ultimate proved of benefit to him.
Sexton’s involvement in Labor politics was not to prove the only time he led with his chin. In 1982 a book he co-authored with a contemporary from the Melbourne Law School, Laurence Maher, was published with the title The Legal Mystique: The Role of Lawyers in Australian Society. He outlines its thesis in this book and declares that he:
was not quite prepared for the hostility that followed publication in June 1982. It did not help that the book received a lot of publicity after it was launched by Justice Murphy of the High Court, himself a controversial figure in legal circles …
One judge was prepared to respond. Justice Frank Hutley of the NSW Court of Appeal launched a 5000 word attack in Quadrant … At least he was prepared to put his views on record. Most of those who shared his opinions were not interested in the notion of public debate.
I in turn questioned whether the joint authors were “interested in the notion of public debate” from their peremptory dismissal of Frank Hutley’s contribution in a letter to Quadrant, so in a subsequent letter I took up cudgels on the judge’s behalf, perhaps more vigorously than was wise.
In 1984 Sexton decided to abandon full-time academic life and be admitted to practise at the Sydney Bar. This was a courageous decision because he would be joining newly admitted barristers who were in their mid-to-late twenties, which was the customary age for admission. Sexton by contrast was in his thirty-eighth year. Two requirements on his admission were to find chambers and a junior barrister with whom he could read as a pupil in his first year. In his quest for chambers, he says The Legal Mystique “continued to cast a long shadow”. After three years in the less than fashionable University Chambers he moved to the Fourth Floor of Selborne Chambers on the other side of Phillip Street. As Sexton recounts:
Another floor that I had applied to join at about the same time rejected the application after one of its barristers circulated photocopies of selected pages from the book to his colleagues. I did not know which pages but I knew the result.
Sexton was much more fortunate in his choice of a “pupil master”, a designation which has since been altered to “tutor” as being less sexist. He was accepted as a pupil or a reader in 1984 by T.K. Tobin, who became a Queen’s Counsel the following year. Terry Tobin, like Sexton, was a Melbourne law graduate who found himself a niche at the Sydney Bar. I have known Terry for a lot longer than Sexton has and I count him as a valued friend. Sexton has written admiringly of Terry as having “one of the sharpest minds in or out of the law” and being “a formidable advocate”. As barristers practising in media law—defamation, contempt, breach of confidence—the two were frequently paired together as leader and junior. They co-authored Australian Defamation Law and Practice.
In 1998, on his third application, Sexton was appointed a Senior Counsel, a designation dating from the early 1990s for those taking silk. (Those earlier appointed as Queen’s Counsel could retain that label, as most of them did.) Of the applicants applying for silk at the time of Sexton’s first two applications he remarked: “It was true that most of the other applicants had been at the Bar longer than I had but only a few had done as many cases by themselves.” And what cases! His last two chapters indicate their range: “The Human Factor: Victims of Law and Medicine” and “Free Speech: Theory and Practice”.
The victory of the Labor Party led by Bob Carr in the New South Wales state election in 1995 broadened Sexton’s horizons in an unexpected way. Towards the end of that year of victory, Sexton was offered the post of Chairman of the State Rail Authority by Brian Langton, the Minister for Transport. Sexton recounts: “I agreed and, during the next three years, periodically moved into a completely new world”, which he describes vividly enough. And then in 1998 came the offer from Jeff Shaw QC, Bob Carr’s Attorney-General, of the position of Solicitor-General. It is not necessarily churlish to remark that his political involvement and connections served to overcome those factors telling against that appointment which I cited at the beginning of this article.
The office of New South Wales Solicitor-General is a life appointment. May Michael Sexton continue to hold it for as long as he finds it fulfilling and may he continue to publish.
J.B. Paul, who taught at a Sydney university for many years, is a long-time Quadrant contributor.