Julian Burnside QC is one of 4 Victorians whom I know to have had Wikipedia entries as barristers. The others are Mark Dreyfus QC, Lex Lasry QC, and Peter Faris QC. (Are there any others?) Julian Burnside has become a writer, Mark Dreyfus a federal politician, and Lex Lasry a judge of the Supreme Court. All but Peter Faris were in Latham Chambers with me.
Now Julian Burnside has written a new book, Watching Brief. Here’s an extract published in The Age. I almost bought it in the bookshop today, but then I thought of all the other books I have to read, and I’d just bought The Legal Mystique (1982, Angus & Robertson) by Michael Sexton and Laurence Maher (‘drugs’ is not an entry in the index) to add to my collection of books about the legal profession. The collection’s coming along nicely since yet another legend of Latham Chambers, Jeff Sher, gave me a little manila-covered book by W.W. Boulton, B.A., Secretary to the General Council of the [English] Bar, published by Butterworths in London in 1971: Conduct and Ettiquette at the Bar. And a friend of mine has promised to permanently lend me Gifford’s Legal Profession; Law and Practice in Victoria. I figured I’d probably buy and read Andrew Fraser’s memoirs before Julian’s latest. But I might change my mind about that, because I imagine Fraser’s is the more interesting, but Burnside’s the better written. In fact, I suspect the writing in Burnside’s is to die for.
Because of the book, he’s on the media circuit. Here’s his interview with Monica Attard. His reference to a ‘marijuana cigarette’ brings to mind by far the most interesting contribution to the Peter Faris debate, which was the Law Institute’s President’s quip to the press that most barristers wouldn’t even know what cocaine is. But Monica, I’m not at all sure that the Bar is investigating whether Mr Faris is a fit and proper person to be a barrister; where did you get that from?
This is what Burnside said on Peter Faris:
‘MONICA ATTARD: Now, what do you make of the Victorian Bar Association’s investigation into the comments by another of, another barrister – one of your colleagues – Peter Faris?
JULIAN BURNSIDE: Look, I’m curious about it actually. I only learned about it in the last day or so and I’m a little bit surprised. I’m disappointed by what I’ve read about statements attributed to members of the bar’s executive but then, I don’t know all the facts.
So I’m, I personally don’t have a problem with Peter saying the sorts of things that he’s said. I don’t agree with him but I don’t have a problem with him saying them.
MONICA ATTARD: Of course he’s talking about lawyers who take drugs. Do you think he has a public duty to bear witness to that?
JULIAN BURNSIDE: No because he has already said that he is not bearing witness to anything because all he’s doing is speaking about anecdotal material that he’s received. Now, any lawyer knows that anecdotal evidence is usually pretty unreliable. So, you know, no. I don’t think he has, I certainly don’t think he has an ethical obligation to raise the matters that he’s raising but neither does he have an ethical obligation to keep quiet about it.
MONICA ATTARD: Because there are people in the professions upon whom the general public rely and lawyers are amongst them. If these people do indulge in drugs, I would have thought there is a great public interest in standing up and facing that. Would you agree?
JULIAN BURNSIDE: I would agree with that with one qualification and the qualification is if it’s affecting their professional performance.
MONICA ATTARD: And if it’s not, not to worry about it?
JULIAN BURNSIDE: Well, yeah, to be honest. If it’s not affecting their performance well then I don’t think that there’s a particular public interest in the matter. I mean, the public certainly has an interest in knowing that they’re getting a proper professional performance from any professional they engage but if a lawyer or a doctor or an architect or an engineer has odd private habits that don’t affect their professional performance, well then I don’t think that the public has an interest in knowing about that apart from the prurient interest of learning facts like that about people they don’t know.
MONICA ATTARD: So if we have lawyers breaking the law there’s no public interest in discussing that or knowing about it?
JULIAN BURNSIDE: Well, if you take that to its extreme you’d say that the public should be concerned about every lawyer who speeds or gets pinged for .05 and so on down the line. I mean I understand your point but I guess it’s a question of degree.
MONICA ATTARD: And taking drugs is at which end of the scale then, if you put them on the scale of the crimes that you’ve just spoken about?
JULIAN BURNSIDE: I suppose the only proper answer to that is that you look at what the Parliament has set by way of penalties in order to assess the Parliament’s view of the seriousness of various crimes.
MONICA ATTARD: And I assume, though, that the crime for drug taking would be greater than the crime for speeding, greater than the penalty for speeding?
JULIAN BURNSIDE: Um, well I’m not sure. It’s not my area of law but I think if you’re caught smoking a marijuana cigarette, you’d probably get off lighter than if you’re caught driving over .05. Now…
MONICA ATTARD: But if you’re caught taking cocaine, for example, presumably you’ll get more than you’d get for speeding?
JULIAN BURNSIDE: That may be so. It would depend on the speed I suppose but I mean, there have been cases reported in the press over the years of people caught possessing or using cocaine or heroin or amphetamines and this and that, and they get $1,000 fine. Now it’s, you know, a person who is caught at, say, .07 or .08 would heave a sigh of relief if they got off with a $1,000 fine.
In fact, it’s a curious thing, if we are concerned about the effect on a person’s performance, it’s a curious thing that there’s such a disparity in the treatment of alcohol abuse and the abuse of other drugs. Now I know that one answer to that obviously is alcohol is legal and tobacco is legal but a lot of medical opinion which suggests that the society’s response to drugs ought to be slightly differently calibrated.
MONICA ATTARD: Does it strike you as odd that the Victorian Bar Association, which presumably, you know, upholds freedom of speech as a central tenet, was investigating whether he was a fit and proper person to be a member of the association…
JULIAN BURNSIDE: It did surprise me.
MONICA ATTARD: …for speaking his mind?
JULIAN BURNSIDE: It did surprise me.’