Hal Wootten in his prime looked like Clark Kent, and he was indeed a kind of Superman, a “giant,” a “towering figure” to obituarists. An exceptionally long life was even more exceptionally packed with activity and achievements legal, intellectual and political.
And Wootten could write. A selection of his prose by two of his successors as Dean at the celebrated UNSW law school is a homage to the founding father and a tour of his life and works, a miscellany of speeches, reports, essays, submissions on matters ranging from the Orr and Stuart cases (causes célèbres of the 1950s) to independence for PNG to problems in finding truth in evidence. On legal education (as founder of a “revolutionary” law school), on freedom of the press (he resigned as chairman of the Press Council in protest at governmental toadying to Murdoch), on Israel and Palestine (aged eighty-six he spent months in Ramallah and supported the development of Palestine’s embryonic legal system), on the legal profession itself (he chaired the Law Reform Commission) and on many other things, Wootten wrote incisively, often eloquently.
Wootten’s capacity to think, to listen and to stare complexity and the imponderable in the face were most powerfully deployed when he wrote about relations between black and white in Australia. He was one of a crop of white intellectuals for whom the rising Aboriginal defiance of the 1950s and 1960s came as a revelation and a life-changing experience, compellingly described in his own case in an essay for Inside Story. The lawyers followed the anthropologists along this path, and they were followed by the historians. Mostly these disciplines fuelled each other, but sometimes not. The Cubillo case of 1999–2000 was the occasion of a particularly bitter falling out between the law and the historians, and it was Wootten who had the last and definitive word.
Lorna Cubillo and Peter Gunner were “stolen children.” They brought a claim in the Federal Court for damages and compensation against the Commonwealth as responsible for the (Northern Territory) institutions involved. Thanks not least to an extensive scholarly literature detailing almost every conceivable aspect of child removal, the case seemed strong, and much hung upon it: waiting on the outcomes were more than 2000 claims by “stolen children” and their children. But Cubillo and Gunner lost. The presiding judge found that while “numerous writings” tell of “a distressing past,” the claim had not been established; neither claimant was entitled to compensation or damages. The case was appealed to the full bench of the Federal Court and lost; the High Court refused to hear an appeal.
Among the many outraged by the decision were two prominent historians who had been called by the claimants as expert witnesses. Both published accounts of the bruising experience of cross-examination and an aggressive assertion of their discipline’s dubious epistemology and negligible claims to objectivity. One of the historians went on to co-edit a volume on the case and the many issues arising, one of no less than four such. The co-editors of another of the four declared Cubillo to be an elegy for both “a redemptive legal historiography” and for “the stolen generations who relied upon it in their quest for justice.” The law and redemptive history, they concluded, are “epistemologically incompatible.” The Australian Academy of the Humanities joined in, convening a national symposium on “Proof and Truth: The Humanist As Expert.” Wootten was, of course, asked to contribute.
Wootten loved the law in its every aspect, from its majesty as the ultimate arbiter of justice to its nit-picky black-letter reasoning. By the time he addressed the academy’s symposium he had been a solicitor, barrister, legal educator, Supreme Court judge, royal commissioner and law reform commissioner. He had also been deeply involved in the Aboriginal cause (he was, among other things, a moving spirit in establishing Australia’s first Aboriginal Legal Service) and had read, written and thought about anthropology, history and epistemology. He was unique in having a foot in all camps, and in his capacity to explain each to the others. More: he could see them and the circumstances of their contest from the outside.
Wootten began by telling the historians that in claiming to be seekers after truth superior to the courts they were coming at the problem from the wrong direction. The problem was institutional rather than epistemological, and more political than either. Yes, the courts and their servants the lawyers are often ill-equipped by background, experience and training to comprehend the issues brought before them. And yes, in the search for the truth the courts may encounter contingencies that deflect, override or force compromises in their search. In a not-very-oblique reference to “Cubillo,” he pointed out that judges may have to grapple with lost records, faded memories and witnesses dead before the case is brought. As for expert witnesses wounded by the questioning of their expertise, judges know from long experience that experts “may lie, exaggerate, get carried away by current excitements, contradict each other, allow prejudice or sympathy to colour their evidence, overestimate the certainty of their knowledge, or mistake the latest intellectual fad for the final discovery of the truth.”
Every culture has a way of resolving disputes; none is perfect. In our culture it is the courts that do the deciding, and decide they must. They, unlike the scholars, have an inescapable responsibility. “The professions first do it, then think about it,” he observed wryly. “The more virginal humanities think about it, but don’t do it.”
The problem behind the problem in this unfortunate case, Wootten continued — and here his capacity to analyse is supported by his breadth of mind and largeness of spirit — the fundamental problem lies in the “relegation” to the courts “of the search for an acceptable outcome to our country’s relations with its Indigenous people.” The Aboriginal search for redress in the taking of land and of children “should never have been subject to adversarial judicial determination in the first place.”
Wootten has often been called “brilliant,” which of course he was, but his brilliance was more than a mental capacity. In the course of his life his intellect fused with boundless energy, growing confidence and broadening sympathies to form a distinctive compound. It belonged to him, and to his times. He was shaped first by the disciplines of a humble family finding its way through depression and war and then by the optimism of the long boom that culminated in the “glorious” 1960s. Australia seemed set to become a real social democracy; the collapse of empire promised the liberation for subject peoples, including Australia’s Aboriginal peoples. It was no surprise that a university should then turn to a lawyer of progressive mind to establish a law school, or for him to want its graduates to remember always “those on whom the law bore harshly.”
The seachange marked by Whitlam’s demise in 1975 produced an Australia and a world very different from those of Wootten’s hopes. Thirty-five years on from founding the UNSW law school he gave a lecture there in a series bearing his name. (He liked to joke that the series was eponymous not posthumous.) Wootten was a doer and an encourager not a whinger, but his lecture’s recurring theme: life should not be about getting and spending, and nor should the law. The law is a service to the whole society, a defender of the foundational principles of fairness and justice, a calling “where integrity and independence are vital.”
No doubt “the professional spirit” endures in many of the law’s practitioners, he allowed. But firms employing 1000 lawyers “on a business model to generate income for equity partners”? In a society that increasingly “judges people by their economic achievement”? Wootten saw that the gamekeeper had been turned; the law was becoming a poacher too. •
Living Greatly in the Law: Hal Wootten’s Selected Writing and Speeches
Edited by David Dixon and Andrew Lynch | UNSW Press | $39.99 | 304 pages
