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Law Articles & Essays

Where we come from

The Bar is obviously a place of privilege and opportunity. We practise our craft with considerable independence, and with special access to the inner workings of justice. It is at the opposite corner of experience to the subjugated circumstances of the refugee.

My parents arrived in Australia in 1951 as stateless Jewish refugees from Poland. Opportunity fell the way of their sons, who both ended up at the Bar.

When I came to the Bar in 1988, it had a proud legacy of Jewish membership—not least Isaac Isaacs, Morris Ashkenazy and Bill Kaye, then a senior Supreme Court judge. In the contemporary period of leading counsel, Alan Goldberg, Ron Merkel, Ray Finkelstein, Ron Castan, Jeff Sher, Mark Weinberg and Stephen Kaye (son of Bill) come to mind. The first three just mentioned took judicial appointments at the Federal Court, while Mark Weinberg took appointments first at the Federal and then at the Supreme Court. Stephen Kaye also took an appointment at the Supreme Court. Ron Castan had a celebrated career as the instigator of, and lead counsel in, the Mabo case. Jeff Sher was a model of the fearless courtroom advocate. Jewish advocates had a natural and welcoming home at the Victorian Bar. They were nurtured in the practice of learning and argument from the earliest age by demanding forebears who, in a number of cases, knew all about loss and prejudice.

George and Colin Golvan and their mother Helen at the ceremony for George taking silk in 1991George and Colin Golvan and their mother Helen at the ceremony for George taking silk in 1991

This picture did not emerge without some hardship. The Irish Catholic and Jewish lineage at the Bar can well be seen as a response to the problems of prejudice in firms of solicitors in their day—fortunately, a day that to my reckoning is well behind us. The meritocratic nature of the Bar meant that it held obvious attractions for those improperly excluded from opportunities in practice as solicitors. That experience helps to understand the emergence of Jewish barristers in the period since the Second World War.

Speaking for myself, if I had to say what it was like as a young (or older) Jewish barrister at the Bar, I would say it was fine. Have I experienced prejudice or discrimination? No. To the contrary, I have experienced only courtesy and understanding from courts and opponents in, for example, managing clashes with important Jewish festivals—like adjourning for Yom Kippur. Have I heard about other Jewish barristers facing discrimination? No. Am I being naïve? I don't think so (and certainly hope not!) with respect to Jewish barristers, but I wouldn't be quite as sanguine about discrimination against other minority groups. George and Colin Golvan and their mother Helen at the ceremony for George taking silk in 1991.

The emergence of barristers from non-establishment— including immigrant—backgrounds directs attention to the predicament of groups that are still establishing their presence at the Bar, for instance, barristers of Chinese ethnic backgrounds, with two such members of our Bar taking silk in 2018. It is extraordinary to think that this recognition has only just occurred.

In turn, we are now seeing the emergence of barristers from Muslim backgrounds and the first barrister from a black African background. The wheels of diversification turn slowly as the opportunity of the Bar becomes apparent and accessible to the latest bunch of the bright and able pushing at the doors of privilege and opportunity.

The position of Indigenous barristers at our Bar is especially worthy of consideration. Mick Dodson practised as a barrister for a short period in the late 1980s. He tells the story of how he could not get work. Due to the considerable efforts of the Bar, starting with Stephen Kaye, the Bar commenced a mentoring program for Indigenous law students in the mid-2000s and has for some years had a number of Indigenous barristers. There is still a long way to go to achieve a proper balance of Indigenous members amongst our ranks, but progress has been made.

One final thought: does ethnic and racial diversity at the Bar matter, including proper representation of Indigenous members? In a city as diverse and integrated as Melbourne, and with a Bar concerned about presenting a representative face to the community, in my view, the answer is obvious.

First published in The Victorian Bar News, June 2019.