The impact of COVID-19 on access to legal services – By Leigh Swift, Peter Gardiakos & Tessa Cartledge

Native title work a ‘privilege’

LINDY MCNAMARA

Respected for his specialist knowledge in Native Title land claims, former Federal Court Judge John Mansfield AM QC says one of the “great privileges” of his work was learning first hand about the “wonderfully sophisticated” Indigenous communities in the Northern Territory.

Appointed to the Bench in 1996 - only a few years after the Native Title Act was enacted - Mr Mansfield delivered 145 judgments and 24 court decisions on land title claims in his 20 years on the Federal Court.

While not wishing to go into detail about specific cases, in an Oral History recorded for the Law Society he spoke warmly of learning about the various Indigenous communities and being able to hear evidence “on country”.

“I don’t really like to talk about individual cases by name, because all of them have different issues and different rights and different people. You have to do what you think is right according to the law and to the people,” he said.

“But I have to say that the first trial case I did under the Native Title Act, which is sometimes called the Alyawarre case or the Davenport Murchison Ranges case, was a fantastic introduction to the more elegant and sophisticated nature of Indigenous communities than I’d ever dreamt possible.

“As you learn the structures of societies and the anthropological material, you actually see it at work. They are wonderfully sophisticated communities. So, that’s a great privilege.”

“That really sets you right in a way to understand what you’re dealing with, and part of the process which I inherited was the concept of hearing evidence on country.”

“So, if you did have a case involving some Aboriginal people, everyone who has done it sees that, particularly for the remote community people, they are much more comfortable on their country, telling their stories and giving their evidence at that place in an informal way, than they are sitting in a court room, or any room.”

In the wide-ranging interview, Mr Mansfield spoke fondly of those who had helped shape him in his early days. They included the “inspirational and energetic and idealistic” young teachers at St Ignatius’ College and John Kelly, the principal at Kelly and Co where he did his articles, and who sadly passed away from Parkinson’s disease during this time.

“He was just a wonderful teacher, and a wonderful life teacher and values teacher and all that, so I was really lucky to be exposed to him,” he recalled.

“Most of the things (he instilled in me) were thinking about other people, treating everybody equally, not thinking you’re better because you’re a lawyer, because you’re not. Everyone has strengths and weaknesses and everyone is entitled to a fair go.”

Admitted to the legal profession in 1969, Mr Mansfield began working for Alderman, Clark, Ligertwood and Rice, with most of his time spent “gophering” and eventually in the courtroom.

Ten years later he decided to join the Bar.

“Over time, I got recognised because I knew a bit about what was then the Trade Practices Act and now the Competition and Consumer Act, because that only came into force in 1975.”

“I had an interest in that for some reason, so I probably got to know it as quickly as a lot of other lawyers around Adelaide. Then commercial litigation was growing, because there were a lot of cases in the ‘80s as a consequence of the financial crash.”

Commenting on his appointment as a Queen’s Counsel in 1985, Mr Mansfield said it was a status he “never dreamed of ” and described how the legal profession in Adelaide was a different beast then.

“It’s very nice to be recognised. It’s an incredible honour. But I think people in the profession know where you stand in relation to others and you can tell from a quality of work whether people think you’re doing a good job.”

“We were a much smaller profession then...it was an incredibly lucky generation in terms of progress in the law, because the Second World War had taken out a lot of the legal profession, so it was a very

Judge John Mansfield AM QC small profession and the opportunities to do work were much greater.”

“It was almost routine that if you wanted to, you could get a job after you got admitted, because you were in articles, so you knew the local profession and the local lawyers knew you. Everyone knew pretty much who everyone else was, and then the opportunities to do the hard work were much easier to get, because there was so few of us, relatively speaking.”

“It was a small Bar in those days, it was developing, so it was just a different world. When you look back and think, how did I get there? It was a lot of luck and it was being in the right place at the right time.”

His workload as a barrister increased in the early ‘90s when he was involved in the State Bank Royal Commission.

“I was lucky to do it, because it’s so interesting. In a sense it’s a dream job, and it probably was for all the barristers who were involved in it.”

“The collapse of the State Bank wasn’t too good a thing. I got asked to be the counsel assisting. I had a friend and a person I very much admire - Simon Lane - who was my co-counsel or junior counsel and we had a good team of lawyers working on that.”

“But it was a different exercise, because not many people do them, at least in that scale. You don’t really know where to start, so it was really a very big consultation process too.”

“Sam Jacobs QC, who was the Commissioner, had his guiding hand on all of it, because he had vast commercial law experience as a barrister and as a judge.”

“I’d had another mentor in the legal profession, called Bob Fisher, who was also a very eminent Queen’s Counsel, and he went on to the Federal Court. Both of those people helped me along and taught me a lot.”

“When you think about how you do commercial litigation and how you manage it, it took quite a lot to organise and pull it all together, and then, as you’re working as a team, you develop themes, and then you consult with all the other people that are involved, for other interest groups or other people to see where their themes are, and it sort of evolves.”

“So, it evolved into the Royal Commission Report.”

He admitted the lengthy process was “very tiring and exhausting” and when he was approached to join the Federal Court the decision to accept was easy.

“If someone had said to me when I was at school or when I started law that I would end up there, I wouldn’t have even thought 4 JUNE 2020 AND 16 JULY 2020

Joint Rules Advisory Committee

Tim White (President), Alexander Lazarevich (Chair of the Civil Litigation Committee) and Philip Adams represented the Society at meetings of the Joint Rules Advisory Committee. The Uniform Court Rules, which commenced in the civil jurisdiction on 18 May were the major topic considered. The Civil Litigation Committee provided a detailed list of questions and suggestions relating to the Rules, for the June meeting. it was within my dreams. So, having been asked, the answer was yes,” he said.

“I was very pleased to take it, because the Federal Court, in a sense, was the natural home for the use of my technical skills, because that’s the sort of work I did. I also had a more Australia-wide perspective than a lot of others, because I’d been President of the Law Council and seen the Australia-wide issues.”

“Because I’d been working so hard that was also an opportunity to give more time to the family. So, it fitted a lot of things at the time.”

Aside from his extensive work on Native Title claims, Mr Mansfield’s expertise in the area of trade practices saw him serving as President of the Australian Competition Tribunal from 2011 to 2017.

Retiring as a Federal Court Judge in 2016, Mr Mansfield said he hoped to be remembered as “hardworking and courteous, moderately good”.

Included in his long list of career achievements was a term as President of the Law Society in 1988/89 and serving on numerous committees for the Society over the years. As President of the Law Council

Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the LCA

Tim White (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings, which were held via videoconference. Key topics of discussion included Professional Standards Schemes and legislation; LCA finances and budget including the capitation fee paid per constituent body member; sexual harassment in the legal profession (prompted by the High Court’s report in in 1993/94 he oversaw the adoption, in concept, of the principles for a national legal profession.

“The other thing that I think is important, or was important to me, is that I was on both the Legal Aid Committee of the Law Society and the Legal Aid Committee of the Law Council for a good many years.”

“I spent a lot of time there, which was, in a sense, also an introduction to the disadvantaged and particularly the Aboriginal disadvantaged.”

“The Law Council committee was an interstate body, and even though we were not a national profession at that time, that committee was very national in its perspectives and we were all confronting the change by the introduction of the Australian Legal Aid Office and the Legal Services Commission, trying to support them and get more money for legal aid and trying to work out where the needs were.”

To read more about Mr Mansfield’s outstanding career, as well as his love for family and passion for collecting historical books, go to

www.lawsocietysa.asn.au B

A roundup of recent Society meetings & conferences

ROSEMARY PRIDMORE, EXECUTIVE OFFICER

DIALOGUE relation to complaints against the Hon Dyson-Heydon AC QC) with a number of actions and projects agreed; lessons learned from COVID-19 including changes that should continue; and support for a Federal Human Rights Charter.

2 JULY 2020

Meeting with Safeguarding Task Force

Society representatives Tim White, Dr Anna Finizio (Policy Lawyer) and Natalie Wade met with the Safeguarding Task Force following the Society’s submission to the Task Force in relation to its Terms of Reference and the Community Visitor Scheme Bill introduced by Ms Nat Cook MP. B August 2020 THE BULLETIN