Colin Golvan AM KC

Q: I understand that you came to the Bar in 1988. But your first career was as a journalist and playwright. Can you tell us about that and what led you to change course?

A: When I finished my law degree in 1979, I planned on a career in writing and journalism. This came following my involvement in student journalism. I co-edited the Farrago (the university newspaper) at Melbourne University in 1976. I also wrote a play about Charlie Chaplin titled The Tramp’s Revenge which was staged at the Union Theatre at the University and subsequently by the Playbox Theatre (today Malthouse Theatre) where I was appointed as the playwright in residence. I worked as a journalist for the Associated Press, based in Tel Aviv, in 1982–1983, covering the first Lebanon War. I subsequently wrote a work of fiction (Theatre Daze, published by Allen and Unwin) and the play Eichmann in Haifa (staged by the Melbourne Theatre Company). In the 1980s and early 1990s I produced and presented a number of radio documentaries and plays for ABC Radio National, including a six part series on Jewish migration to Australia after the Second World War, which was published in book form by the ABC under the title The Distant Exodus.

It was a diferent time and support for the arts was comparatively generous. It seems like a fairytale now. But it was still difficult to make a living as a writer. I was married with two children and a mortgage and so economic reality caused me to change direction and pursue a career in the law while at the same time working on my knowledge of IP with an LLM at Monash University. I was lucky enough to get a position with Phillips Fox and Masel (now DLA Piper) which was establishing its IP practice at the time under the management of an excellent principal Alan Kirsner. While I was working as a solicitor I was involved in a lot of litigation. It seemed quite theatrical so I thought “I can do that. I can write scripts. I can be a star in one of my own productions”. So I went to the Bar. It proved to be a little bit harder than I had appreciated as an observer. 

Q: You read with former High Court of Australia Justice, the Hon Susan Crennan AC KC. What was that like?

A: I was very privileged to read with Sue Crennan. I was the only reader to complete a full reading period with her as she took silk so quickly. In fact, she had to get permission from the Bar Council to take a reader as she was under 10 years at the Bar when I was planning to start with her. I had no comprehension at the time that I would be reading with a future High Court judge, and I imagine nor did she. Sue was a gifted teacher in the craft of advocacy. She also emphasised the importance of enjoying what we do and the friendships we make with professional colleagues, as well as aspiring to a satisfying career both inside and outside legal practice. She was an important role model in how to balance one’s personal and professional life.

Editor: That’s not always something that barristers do successfully.

A: It can be done, in fact it should be done. In the end, barristers don’t have the sort of careers that people memorialise. They need to keep an eye on what is happening before and after the work day.

Sue was a first-rate barrister – not least when I first met her as a senior junior (having been introduced to me by my mentor at Phillips Fox and Masel, Alan Kirsner), but also a critically important guide when guidance was in peak demand. Fortunately, as she took silk so quickly, I was able to take over at least part of her very busy junior practice, as well as having the good fortune to work with her as a very junior barrister. I did also get to see her from the vantage point of the Bar table as a judge of the Federal Court of Australia and the High Court – she remained ever wise and good natured throughout.

Q: What have been your major areas of practice?

A: Copyright, Designs, Trade Marks, Trade Practices, Australian Consumer Law (and some Patents).

Looking back now, I realise that I have appeared in hundreds of cases covering almost every conceivable fact scenario relevant to these areas of practice – ranging from lettuce crispers, parts lists for petrol and radiator caps, Kylie Minogue, Dr Martens shoes, Darrell Lea chocolates, yellow pages telephone directories, house plans, fashions of all descriptions, technology for propagating root growth in plants, managing mining wastes and so on. In IP we get to cover a potentially vast array of industries, brands and creative or inventive ideas, and we engage with other disciplines and hopefully learn something which stays in the mind about how non-lawyers think – it can be liberating.

I have cross-examined probably thousands of witnesses. It always has a degree of drama in it, like a search party being sent out to discover the truth – of course, not infrequently the truth was there as being told, but not always. I had a special interest in the foibles of witnesses. I am a child of Holocaust survivors, who had especially elevated street smarts which, for them, was the difference between life and death. They managed to survive the Second World War in hiding in Poland under assumed identities. It was hard not to pick up some cautionary messages from them that have helped me when setting eyes on a witness and searching for the error or slippage in their evidence, whether unintentional or otherwise. To this day, I have thankfully not experienced being cross-examined myself. I am sure I would struggle to remember all the caveats about giving evidence that as counsel we hand out to witnesses.

Q: You were (amongst) the first to use IP law to protect Indigenous Cultural and Intellectual Property (“ICIP”) in Australia. And you have recently written a book about that experience Protecting Indigenous Art: From T-Shirts to the Flag. What drew you to this work?

A: I explain the origins of my involvement in the Introduction to my book. I have always felt a strong affinity for Indigenous arts and artists. Their craft and artistry (and warm and engaging manner) have always stayed with me. It is not hard to get caught up in Indigenous stories of our ancient land, which are depicted with such intensity, vision and often good humour. There is no other contemporary artform in Australia with the energy and creative vision of our Indigenous arts. There is also no precedent in the Western arts world for an Indigenous artform to achieve the
prominence and recognition of our Indigenous arts. This point is well exemplified by the fact that an Indigenous artwork is one of the national flags of Australia.

I love the way in which Indigenous arts teach us so much about the land we live in, and there is so much more to learn based on the great history of stories being told. The artform brings to our Western table a complex way of understanding the stories of the land. As the child of refugees who were welcomed to Australia, the focus on welcome in Indigenous culture has always resonated with me. I like being welcomed. I think that the practice is sound and should be encouraged.

Indigenous stories can be likened to the stories of Greek, Roman or Egyptian mythic cultures, except in each of these cases, such cultures are long past. The story tellers of our Indigenous cultures live amongst us. While there is much about Indigenous art which remains a deep mystery to me, one thing I do know is that we can do a lot more to properly understand or appreciate the value and wisdom of the artform.

I am pleased to have played the role I have in assisting in the protection of the artform, framing as my starting point the special grounding in copyright I received as an undergraduate at Melbourne University from Sam Ricketson, and then followed by the Masters course I took in copyright at Monash University, taught by Janice Luck, in which I was also very fortunate to have as a guest teacher the famous American copyright scholar Melville Nimmer, who was a visiting teacher at Monash when I did the course. It was not hard, with my interests, and the teaching I received, to make copyright a special focus in my legal practice. I also took inspiration from David Catterns KC and others with whom I had the privilege to work. Copyright was the area of law to which I was drawn from the outset. I knew that I would love it and hoped that it would look after me as well (as it has done).

Q: IP law clearly has its limitations when it comes to protecting ICIP. Do you have any thoughts about the Australian Government’s plan to introduce standalone legislation to protect ICIP?

A: While I have been a strong supporter of copyright as an effective means for protecting Indigenous art, I agree that an ICIP approach, involving a form of self-determination about how Indigenous IP should be acknowledged and protected, is important and should be adopted. At the same time, there are some very significant challenges in managing the issue of ownership of rights which I know is under careful review.

Q: You were the founding Chair of the visual arts copyright collecting society Viscopy (now part of Copyright Agency) and have been actively involved with a number of arts organisations. Do you have any thoughts about acriticial intelligence (“AI”) and what it means for creators?

A: To me, AI properly managed presents a significant licensing opportunity for copyright collecting societies such as Copyright Agency. IP is in a constant state of challenge and review. AI presents a new challenge to copyright. I would like to see copyright owners and licensees move to an arrangement where AI usage can be licensed under management. It is very helpful to see that the Federal Government has recently endorsed this approach. For text and images, Copyright Agency would be the obvious manager. In that regard, I also note that there are special
opportunities under Australian copyright law which are not available under United States (“US”) copyright law, in particular the distinction between fair dealing (in our law) and fair use (in the US). It may well be that Australia provides a suitable jurisdiction for getting the AI copyright usage issue resolved, as I would suggest with licensing, whether by individual copyright owners, or more realistically given the scale of AI, by representative organisations.

Q: You have played an important role in mentoring others (notably Dr Terri Janke) and on promoting diversity at the Victorian Bar. Why has that been important for you?

A: The mentoring of Indigenous law students and graduates is important in enabling opportunities in circumstances where the conventional paths to progress in professional practice are generally not open – i.e. family, school, social connections. The Bar has played a model role, in association with the Courts, in creating opportunities for Indigenous law graduates through mentoring. Many of the Indigenous law students with whom I have dealt are natural advocates and prime candidates for successful careers at the Bar. Indigenous lawyers remain vastly under-represented in practice and especially at the Bar. We have made some inroads but do need to do better. Mentoring has and continues to play a key role. It plays a part in managing Indigenous disadvantage by enabling opportunities, in this case for Indigenous law students, in a field in which we can make a real difference as supportive professional mentors and colleagues. I have long come to understand that a particularly useful way forward in resolving the black-white dilemma in Australia is for those who wish to provide support and assistance to start by “staying in their lane” and working on a problem the solution for which is within reach based on experience and skill.

A special call out for Dr Terri Janke, who I first met as a law student helping out with the running of some copyright infringement cases in the 1990s. It has been a special privilege for me to work with her over many years, and it is fantastic to see her now as the pre-eminent practitioner in Indigenous cultural rights, having founded the leading practice in the field Terri Janke and Associates, which has employed quite a number of Indigenous lawyers.

Q: You have been an active member of IPSANZ over many years. What do you think that IPSANZ offers the IP profession?

A: I have enjoyed many IPSANZ conferences and seminars both as a participant and presenter. Collegiate practices are very important. Legal practice, especially at the Bar, can be monastic at times, so it is good to reach beyond our day-to-day work environments, share ideas and, most importantly, socialise with colleagues. The importance of the collegiate aspects of practice cannot be underestimated. We draw from each other as teachers, fellow students, supporters and friends. We very much need groups like IPSANZ to help maintain professional standards and to provide social interaction which invariably takes us out of the comfort zone of colleagues in nearby rooms to engage with colleagues in our cities, as well as interstate and New
Zealand. There is much to be said for a broad Australia-New Zealand perspective on practice in a field such as ours.

Q: Would you like to share any reflections on your career with our readers?

A: The Bar is the best professional occupation I know – showing my bias here. You get the best part of the case to manage. You have the privilege of complete independence and the chance to work with colleagues of considerable ability (as solicitors and members of the counsel team) to achieve the best possible result in the fairest and most appropriate way. Of course, people love you when you win. You can have an impact on the course of the law. You also have a major impact on people’s lives. Clients entrust us with the resolution of disputes that often seem to them intractable. We do need to fully recognise that trust. For many clients, the case we run for them might be the only experience they will have of court in a lifetime.

Some of the most important cases I know were shaped and given life by barristers – not least Mabo in the hands (and imagination) of the late Ron Castan AM QC.

Integrity is precious and valued – hard won reputations can easily be lost. Camaraderie has been a special feature of my time at the Bar, not least with opponents – who we try to beat up and then share a laugh and plenty of good times. Hard to beat.

I do link such insight as I have been able to bring to my practice with my love of the arts and writing, in particular. There are two things I would say about that linkage. First, as barristers we are in the persuasion business. It is hard to beat a riveting stage performance as a guide on how one goes about persuading/seducing an audience. Secondly, storytelling is an essential part of good advocacy. I have always thought that top advocates are fantastic at crafting a story around their cases. This of course has the desired outcome of a successful finding.

Q: You have continued to write and teach while practising at the Bar. Now that you are stepping away from practice, how do you plan to spend your time?

A. I have been very pre-occupied with giving many talks in connection with the publication of my new book. It has been a special thrill to have had the book published, and I am still in the glow of thinking that I must have another book in me. These experiences have a way of playing tricks on you. Of course, there is family, travel and Melbourne itself. I have to confess that I have slipped into a non-working frame of mind without the least hesitation. At the same time, I cannot be more grateful for the experience I have been privileged to have as a member of the Victorian Bar and the IP Bar in particular.

Q: Anything else?

A: You are going to have bad days as a barrister, when everything that should have gone well in fact goes badly – try to be kind to yourself.

Interview by Fiona Phillips
Published in the Intellectual Property Society of Australia and New Zealand Forum, December 2025 - https://www.ipsanz.com.au/IPSANZ/Web/IP-Forum/Overview.aspx.