Jeff Sher interview 18 November 2009

I would like to turn to an area of your work which I think you would probably yourself be most entitled to feel very proud of, and that is the work you've done for Aboriginal land rights. This is perhaps lesser known to those outside the Bar, a lesser known aspect of the work that you've done over the years, but would you like to tell us a little bit about the Kenbi case and what led up to it and your role in it?

Sure. Okay. When I took silk I did quite a few town planning cases and I think I got a bit of a reputation. I mean, it's funny how you get reputations but some people thought I was a town planning expert. If they'd asked me, I would have said, "Go somewhere else." Somebody up in the Northern Territory, a Victorian practitioner, apparently had heard of me being a town planning expert. What happened in the Kenbi case, which was a land claim made by the Larrakia, who are the traditional owners of the area near Darwin; they lodged a land claim back in 1978, I think, and the land that they claimed, you can't claim land if it's part of a town, and what the Northern Territory government had done was to proclaim vast areas around Darwin, Alice Springs, Katherine and Coober Pedy, I think, not Coober Pedy, whatever, as part of those towns. I mean, Darwin ended up being about the size of London, and they'd done it through regulations. What they did was they took the legal point that this was land in a town that was being claimed, albeit it was in a peninsula which you had to get to either by a four or five hour drive or by a boat over quite a long distance, and it came on before a guy who ended up in the High Court, I've forgotten his name, (a) very nice judge, very clever judge, and they'd said to him...

Toohey.

Toohey, yeah, John Toohey. Very pleasant man to appear before. I argued part of this case before him. He had been, it had been submitted to him that this was land in a town and couldn't be claimed. In response, the counsel then briefed for the claimants had said, "Well, the regulations were made for an ulterior purpose and they weren't bona fide and therefore they could be set aside." Toohey had said, in accordance with old authority in the High Court, you can't challenge the Governor in Council. It's like challenging the Queen or the King or whatever and you can't do that. So he'd effectively thrown it out. He said, "You can't claim this land." Somebody had told the Northern Land Council that there was a guy in Melbourne called Jeff Sher who knew about town planning and you've got a town planning problem here so you'd better ask his opinion, get a second opinion. It came down to me. (I'd) Never heard of the Northern Land Council and the Aboriginal Land Rights Act or whatever, and I had a look at it and recommended that they seek prerogative relief in the High Court. When we got to the High Court, again it was a very smart junior, one of my skills was picking good juniors, I had a fellow called Bruce Oslington, who's now a leading silk in Sydney, a very good lawyer, Bruce. He'd raised with me in discussion, he said, "Why don't we challenge this old law about not being able to attack the Governor in Council? I mean, you can attack his advisers, you can attack everyone, but why shouldn't you be able to attack the Governor in Council?" So we ran this point in the High Court and won. So here we are years later with the ability to attack these regulations. If you think that was the end of it, you've got another think coming, because what then happened was (that) we went in front of John Toohey and we said, "We want you to make an order for discovery", which you're probably familiar with - it's how you get access to documents on the other side. We said, "We want you to order the Northern Territory government to make discovery of all their papers in relation to making these regulations." The Northern Territory, who were represented by the then solicitor-general and a very good barrister from Sydney whose name escapes me for the moment, he became a Federal Court judge, terrific guy, they said, "You can't get discovery of a lot of these documents because they're covered by legal professional privilege." Right off the top of my head, because I knew a bit about the laws of evidence, I said, "No, it's covered by the crime and fraud exception. You can't protect documents created in the pursuance of crime or fraud and this is sufficiently fraudulent to justify the description". Toohey upheld the argument and he said, "You've got to make discovery of all these documents." Well, they took that to the High Court where they lost. So now we had an order for discovery and they had to discover all the documents. Well, out they came. Can I tell you that amongst the files they discovered was a file entitled "How to defeat land claims" and they had made these regulations to defeat the land claim, that was the whole purpose of the regulation. Well, that then came on before the-then Aboriginal land commissioner who was the successor to Toohey and to argue the matter, I was going up to Darwin to argue this matter and licking my chops at this at last, and I got jammed in Melbourne and Frank Costigan took over my brief. Of course he had a wonderful time and we won that argument. So the regulations go out: this is years after the claim's made, and now we've got the land claim on foot. Well, it's ultimately been heard, but it's taken years. I think it took over 20 years for that land claim to be heard and of course a lot of the original claimants died. Anyway, as a result of acting for the Northern Land Council in that case, they started to brief me in other cases. I did the Katherine Gorge land claim. I did another claim for the Jawoyn mob in the land contiguous to the Katherine Gorge National Park. I did other cases for Aboriginal interests. I worked for them on and off over about a ten-year period. I went out bush with them. I camped out with them. I got to know a lot of the black fellows. One of my client's name was King George and they were real, fair dinkum Aussies. I mean, they were the true-blue, indigenous Australians and it was a privilege to act for them actually.

If you could, would you have chosen to maybe continue to broaden your practice in that area, if things had been different?

Well, I worked for them for ten years. It's funny, I used to charge them about a quarter of the fee I would charge if I charged at all in Melbourne and they used to think I was outrageously expensive even at that level. I didn't give up working for them for any financial reason, but I got older and it's tough working in Darwin. I mean, you don't pick the right time of year to go up there. It's hot. Going out bush, living off the land, camping out and all that, I found it very physically demanding, and I think I got to the stage of my life that I thought I'd done enough physically. I think by the time I stopped working for them, I probably was well in my 60s, yeah.

Do you feel there's enough members of the Bar now carrying on in that spirit, in the way you've approached things?

I don't really know, but I can say this, that at the time I was doing work for Aboriginal interests, there were a lot of Victorian barristers. It's to the credit of this Bar, and a lot of guys became judges subsequently because they had the right attitude. Frank Vincent, John Coldrey, Geoff Eames, oh, an endless number, Dyson Hore-Lacy, David Parsons, Ross Howie… These were top people.

What do you think was peculiar to the culture of the Bar that you think engendered this spirit in so many of these people?

I don't think it was so peculiar to the culture of the Bar. I think it was just that these were decent people. I mean, there are a lot of people around for good causes. One of the things that I found, and I'm not going to name any names, is there are lot of people who are colloquially referred to as "do-gooders" and they're often third-raters. I think when I got up there, there was a lot of mediocre legal advice being given to the Northern Land Council and, without being immodest, when Ron and I started working for the two land councils, I think the quality of the advice they got was a lot better. In Alice Springs where a lot of these guys I've named were working in criminal stuff, the quality of the defence of Aboriginals in the Alice Springs area improved out of sight. I think it's important that people from the Victorian Bar keep this up.

Conducted for the Victorian Bar oral history project by Juliette Brodsky, and filmed by Stewart Carter on 18 November 2009