Alternative Law Journal
Melbourne barrister, Ian Freckelton, has recently retired as one of the Directors and long-term committee member of the Alternative Law Journal. The Editors take this opportunity to thank him for his contribution to the development and management of the journal over 17 years. Ian has been an active participant in the wider Australian legal scene for many years, and we invited him to talk about some of these aspects of his life.
Bronwyn Naylor and Melissa Castan
Bronwyn Naylor and Melissa Castan teach law at Monash University.
How do you describe your occupation(s) these days?
I'm a barrister through and through, between five and seven days a week. After 12 years it is still what inspires and excites me. If I'm not in court I drive everyone around me crackers. Appearing to give voice to what people want said on their behalf, getting to know them and understanding their situation, communicating those things in a meaningful and personal sense to a decision-maker, effectively arguing for people's entitlements, interweaving all of that with rigorous legal analysis, is a wonderful challenge. For me it is living, breathing law, redolent with the traumas and pain and mistakes of human fallibility. The task of the barrister is to imbibe sufficient of that to be able to portray it, but still to retain sufficient detachment to give sound legal advice that evaluates the prospects of litigants' success technically correctly. Only then can strategy be formulated to optimise the circumstances of the litigant. The tactical process of following through a case from relatively early stages, which more and more is within the bailiwick of the barrister, is also very intellectu ally and personally demanding. I love it.
Can you trace your 'career path' or directions your career has taken?
I started work as a raw graduate in a Sydney corporate law firm in the early 1980s and fast concluded that my studies at university had been in vain and that the solutions to life's problems did not reside within the law. I was profoundly depressed at the logistical ad vantages that the well-heeled, those at the upper end of town, had in any legal disputation. And I was there, a part of it all! One of my early tasks was to advise whether the partners of a global company could successfully alienate their assets so as to avoid liability for their tortious conduct. I applied all of my best research efforts to the question and wrote what I thought at the time was an accurate piece of advice. I re ported that it was too late; there was nothing the partners could do. They should think about bankruptcy. I must have communicated to my allotted mentor in the firm my perception that this seemed to be a just result, anyway. He let me know that the partners would not be considering bankruptcy, that my attitude left something to be desired and that I did not seem to have much of avocation in corporate law. I felt crushed at the time, but he was right and I decided that night to leave and 'discover life'.
I opted to get a 'real' qualification. I commenced a year's course in therapeutic massage, funded by teaching monks Lati and Greek at a Sydney seminary. Teaching had never previously been an aspiration but the pupils were keen to learn the little I had to impart and the surf beaches were close by. Life was good and I enrolled in post graduate Anglo-Latin study and by night tried to teach myself Sanskrit and organised to learn the lute.
Then occurred what completely changed my rather diverse and satisfying non-legal lifestyle. I was offered a job to finish a small project at the Australian Law Reform Commission. I was very diffident about this because the waves at the time were good, I was finally starting to understand Vedic grammar and my experience with the law had not been positive.
However, I was lured by the reputation of the ALRC and came to work in the most wonderful conditions on the Evidence, Aboriginal Customary Law, and Contempt projects. The ALRC was an extraordinary and inspiring training ground in the early 1980s-the heyday of institutional law reform in Australia. First of all, there was the very active, hands-on presence of Michael Kirby, and also two people who became men tors for me, Tim Smith (now Smith J of
the Victorian Supreme Court) and Michael Chesterman of UNSW. Lionel Murphy was very much involved too, Geoffrey Robertson would appear, Jocelynne Scutt had just left. Sir Maurice Byers would critique one's work at consultancy meetings and diverse interdisciplinary input informed all of the research and analysis. And the ALRC recommendations were almost always implemented. From Tim Smith I learned (haltingly and bucking a lot of the way) the importance of ordered thinking, rigorous analysis and openness of reasoning processes -intellectual accountability, I suppose. From Michael Kirby and Michael Chesterman I learned passion for the law and respect for its potential as an instrument of social change. I acquired an enthusiasm for what legal process and legal analysis could accomplish in terms of social justice and the potential for giving a voice and an awareness for those who are suppressed and alienated by the 'system'.
After about five years, it was time for my phase as a full-time researcher to end. I felt too theoretical. I accepted an offer to be counsel assisting the Police Complaints Authority of Victoria with Hugh Selby. It took me closer to prac tice and introduced me to another aspect of the potential for oppression - poor quality policing. It was a steep learning curve in the full glare of the media. The Police Complaints Authority had a bright and very short life, from 1986 to 1988. It antagonised the Victoria Police, unnerved the government and emerged, to my mind at least, as one of Australia's first really independent ombudsman-type bodies that tried to address systemic problems of violence and corruption. I think that the curious tale of the PCA remains instructive not just historically but as a guide for others who want to investigate and work against resistance to outside scrutiny within police forces.
I moved from the Authority to the Victorian Bar, at first mostly doing Magistrates and County Court criminal defence work. More latterly, I have diversified into a lot of plaintiff compensation and personal injury work, as well as coronial administrative law and general appellate matters, especially criminal. At the moment I am appearing for a series of mentally ill people who had been detained at the Governor's Pleasure and are seeking release from detention and supervision. I am also working on cases about people who have hanged themselves in Victoria's new private prisons, for refugees appealing to the Federal Court from decisions to deport them, and for plaintiffs seeking compensation arising from the collision between the Melbourne and the Voyager.
In 1993 I was asked to be the editor of the Journal of Law and Medicine, which I continue to look after. I am also the Editor-in-Chief of Psychiatry, Psychology and Law, which is the journal of the Australian and New Zealand Association of Psychiatry Psychology and Law of which I am a past president. Both have now evolved into significant international periodicals with large readerships. Although the continuing process of moulding and keeping them dynamic is quite time consuming, I find this one of the most rewarding of my roles.
In a decision-making capacity, I served on the Social Security Appeals Tribunal between 1989 and 1993 and more latterly on the Mental Health Re view Board, the Psychosurgery Review Board and the Psychologists Registration Board in Victoria. Although this is a step away from advocacy, my basic trade, I enjoy this side of legal work immensely. Again it fuses the potential for making the legal system accessible to ordinary people, who have faced problems, with the challenge of correct but humane legal assessment of authority and statutory interpretation.
What do you see as some current challenges in legal practice?
The legal system is changing at a dramatic rate so flexibility for its practitioners is a vital quality. In terms of coercing it, though, into being relevant and accessible, into serving the needs of its consumers, there is much to be done by practitioners, commentators, judges, tribunal members and politicians. It is not just change management that is required; it is more than anything to ground it in .humanity and values that are both acceptable to the community and give leadership in ways which protect the vulnerable and intrude as little as necessary on rights and freedoms.
What do you do in academia?
By night (only) I do some teaching, mostly to postgraduates. It is very stimulating. I am currently an Adjunct Professor of Law and Legal Studies at La Trobe University, a Professor of Psychological Medicine and an Honorary Professor of Forensic Medicine at Monash University, and a Fellow in the Department of Criminology at Melbourne University. I generally teach in intensive health law programs, criminal law/criminology courses and in areas to do with expert evidence and complex civil litigation. I also conduct work shops around Australia with my colleague from the PCA, Hugh Selby, for the AMA and for forensic accountancy firms on being an expert witness.
You've written extensively on expert evidence, and I believe you are writing books on coronial law and criminal injuries compensation law. What do you see as key issue(s) in these areas?
For expert evidence, the challenge for the law is to utilise the fruits of non-legal disciplines accurately and more fully than they have been in the past. An extension in the areas of compensation and death auditing is coming to grips with the legal issues posed by illness, injury and disease and under standing the processes of causation of each of the phenomena so that they can be avoided, where possible in the future, and so that those who are culpable can be identified. Compensating those who are injured or bereaved in a com munity-acceptable way is an important issue too with which we are only still only starting to come to grips. Those who have been harmed through no fault of their own by the criminal conduct of others, especially those who have been sexually abused when young and those who are the victims/survivors of domestically violent relationships, are at last being identified as particularly in need of better health and financial recognition. But the recognition is imperilled by bean-counters looking for ways of pruning governments' exposure to expenditure.
What do you see as some of the highs and lows of your time with the Legal Service Bulletin/Alternative Law Journal? Do you have any thoughts on possible future directions for the journal?
I vividly remember the sense of optimism and purpose with which I emerged from Legal Service Bulletin meetings in Sydney at George Zdenkowski's kitchen table in 1983-84. The Alt.LJ, the Legal Workers' Group, the ALRC were all part of a dramatic process of reform and modernisation of Australian law. Much has changed in the two decades and the path toward constructive change is now not so easily discerned and commitment to reform no longer inspires young lawyers so readily. A task for teachers of law and mentors of recent graduates is to inspire them to build a perspective of the bigger socio-legal picture into their practice, to appreciate their opportunities for contributing to the reform process by use of their experience and their insights. The Alt.LJ, as the major alternative source of perspective on the legal system, is a vital source of such momentum. Its challenge is to keep reinventing itself so that it is and is seen to be relevant to a wide cross-section of those interested in the legal system.
You have a partner and young children: how do you manage the competing demands (and pleasures) of career and family?
I am asked that a lot. It's the hardest challenge, I think -a question of balance and juggling different commitments and keeping a sense of perspective on what is most important. For me that is my family and friends. With flexibility, everything else sort of fits in around, in the crevices and holes that life permits - at least most of the time. Without a satisfying personal life, though, everything else would seem very barren. Professional achievements would be hollow.
Where do your 'outside' interests currently lie?
Music. I live in a very musical household. Running and swimming, at least on Saturdays and Sundays. Supporting the renaissant Tigers in AFL and ARL. I'd like to update my massage skills. Planning for trips to far-flung locations. I try to spend time overseas every year and have travelled in Northern Africa, throughout many parts of the Himalayas, recently climbed on Mt Popacetapetl in Mexico, visited Greenland, went snowboarding on the volcanic snow fields of Iceland, spent time with my family in Umbria. The time in Iceland was very exciting because I spent five years long ago studying Old Icelandic and it was wonderful to teach about bioethics and the law at the University in Reykjavik and to visit the sites of Njal's Saga etc.
Is there anything, in terms of job or occupation, you would rather be doing?
No. I am fortunate to have a wonderfully diverse professional life. You are talking to a contented and stimulated person. My career has taken me to places already that I had never dreamed of. I have no specific plans or ambitions. The ride has been exciting so far and it is relatively early days yet, in spite of the passage of the dreaded 40th birthday, so I am looking forward to the future in an unstructured way.