Hello and welcome back to the Australian Law Student Podcast.
I'm your host, Oliver Hammond, and in today's episode, guest Nicholas Hodgkinson had the
honour of speaking with Justice Ian Jackman of the Federal Court.
His honour is a distinguished figure in Australian law, with his career being a testament to
his profound legal acumen.
In this episode, he discusses his journey from practising barrister to a Federal Court
judge and shares his experiences with mentors and the involving nature of the law.
He offers invaluable advice for those pursuing a career in law, focusing on the skills and
qualities necessary for success.
This is definitely a discussion you won't want to miss.
So, without further ado, sit back, relax and enjoy the podcast.
Hello everyone and welcome to another episode of the Australian Law Student Podcast.
I'm Nick Hodgkinson, one of the usual host Oliver's colleagues, and I'm taking this
episode as a one-time interviewer.
The better news is that I'm joined by none other than the Honourable Justice Jackman
of the Federal Court of Australia.
Your Honour, thanks for agreeing to speak with us.
How are you this morning?
Very well, thanks, and my pleasure to be with you.
Great, thank you.
So, the first question, Your Honour, you've been involved in numerous high-profile cases,
both while serving on and before coming to the bench.
Could you share any pivotal or formative experiences that have influenced the course of your career?
Well, I can't disclose confidences, and most of the interesting work in cases happens confidentially,
but I can talk about my very good fortune in having some outstanding mentors, particularly
in my early years at the Bar.
I was an associate to Bill Gummo when he was on the Federal Court before he went to the
High Court, and that was a tremendous year in which I learned a great deal, and Bill
Gummo was very kind in introducing me to a lot of practitioners who, in turn, became
very good mentors themselves.
I then read with Brett Walker when he was a barrister.
That was a year of about 10 years standing, so bear in mind, this is a long time ago.
We're going back about 35 years, and Brett was a very kind and generous mentor to me
during that year of readership.
And then I had the very great fortune of doing some work with Dyson Hayden when he was a
Silk, and that became a very important relationship in my career, and we did a lot of cases together.
A lot of advice work together, and became very good friends.
And I remain very good friends with all three of those mentors who really did shape me and
my approach to the law very profoundly.
I went straight to the Bar after university, and so it was very important to me that I
had some outstanding mentors to guide me in those early years.
And no fledgling barrister could have been more fortunate than I was in having those
three people as my mentors.
And so following on from that, for students and young lawyers aspiring to become barristers,
what key skills and attributes would you recommend they develop in order to excel at the Bar
or in the legal profession more generally?
I used to advise my own readers.
That there were three essentials, which I call the three A's.
You have to be able, you have to be affable, and you have to be available.
And unless you've got all three, you're really not going to make it at the Bar.
You see a lot of young barristers who might have two of the three qualities, but are lacking
one of those critical ingredients, and they tend to fall by the wayside.
So in terms of ability.
You need a very sound knowledge of the law.
You need a retentive memory.
You need immense powers of concentration because there's a great deal of reading, and cases
tend to be won and lost on matters of detail.
You've got to be affable because people have to enjoy working with you, and they're simply
not going to brief you unless they enjoy working with you.
The Bar is an individual profession.
You need a strong instinct for being a team player.
And so looking at university years as a preparation for the Bar.
It helps if you play a team sport, or if you pursue cultural activities like plays, or
playing music in an orchestra, or singing in a choir, which all involve teamwork, because
that develops your affability, which for many people comes naturally, and for other people
is something to be worked on.
And then the third of the A's is that you have to be available.
And especially in the early years at the Bar, you can't say if you're given an urgent matter
on a Friday afternoon.
And so, a lot of times, a lot of times the time has been that I'm not willing to go
and do something that I'd love to do, which is the way I am today.
So that's kind of a good example of that.
And then the fourth of the A's is, and this is a good example of the stuff that you read
And I'm going to read them all out of the things and I'm going to take a look at the
works which I've got to play, which I've got to write.
You really need to have a strong instinct and a strong sense of being able to learn what
is that you do have a lot of time.
One of the shortcomings of the bar
is that you're starved for time and you've gotta prioritise
and unless you put your professional obligations first
or near to the first of your priorities,
then you're not going to convey to the solicitors
who want to brief you that you are available
to do their work.
This third question is slightly different
and perhaps more focused.
Earlier in this year in ASIC and Web3 Ventures,
Your Honour decided not to impose a penalty
acknowledging the respondent company's reliance
More broadly, how can Australia effectively encourage
innovation in emerging sectors such as blockchain
and cryptocurrency while ensuring that businesses
operate in compliance with the existing regulatory schemes?
It's a very good question
a particular aspect of a broader philosophical question
on which I think a number of judges are divided.
Innovators have to be confident that the law
is going to respect their autonomy in circumstances
where they seek legal advice
and they act consistently with it.
And innovation often means that
the legal position isn't entirely clear
and innovators are in a difficult position.
They are not lawyers themselves, typically,
and they've got to be able to act with confidence
on the basis of legal advice which they are given,
even where the issues are problematic because the laws were,
I think, drafted with different technology in mind,
but it is a fundamental aspect of the rule of law in my view
that people in the commercial community and in the community
generally must be able to rely upon lawyers.
One of the desiderata of the rule of law, of course,
is that laws must be published but that doesn't just mean
that the laws have to be published in ever so many copies
of statutes or textbooks or cases, it also means that people must have access to well-qualified
lawyers who know their way around the books and who are available without undue expense
to give them advice.
But the Web 3 case which you're asking me about does raise a very acute problem and
there are decisions, including by the full federal court, to the effect that whether
somebody has sought and obtained and followed legal advice is really not a relevant matter
when it comes to the question of imposing a civil penalty on them.
Now, it can't be a relevant matter when it comes to whether, as an objective matter,
they've contravened the law, but I regard it as a highly significant matter when it
comes to imposing a civil penalty.
And I don't think that the civil penalty regime should be applied adversely to people
who have acted responsibly in seeking advice, obtaining it, and then subsequently following
And I think it's important that innovators understand that the courts will respect their
autonomy in that way.
And now for the fourth question.
As some of our listeners would be well aware...
Most law schools now prescribe mandatory legal theory units that explore the broader
philosophical and societal context of the law.
In your Honour's experience, are these theoretical perspectives relevant to practical work at
the bar and on the bench, or do they remain primarily academic in nature?
That is a tricky question and a great deal depends, of course, on exactly what kind of
legal theory one is studying.
But I think legal theory does have a potential to...
make a practical impact on the way that judges certainly decide cases.
We've just touched on an example, Web3 Ventures, which is very much informed, by my view, of
the rule of law and the importance of availability of legal advice and the autonomy of people
in the commercial community, which all stems from my own legal philosophy.
A lot of jurisprudence does seem to have primarily a theoretical impact.
But, even then, I think it's important that people who are going to spend their lives practising
law or, later on, deciding cases as judges, should have some kind of a philosophy about
what the point of it all is.
saddens me to think that a lot of legal practitioners will spend 40 odd years of
their lives without ever really reflecting on what the point of the
legal system is why do we have a legal system what is a legal system what is
law what is a good legal system that is what are the criteria by which a legal
system is in good shape and I think developing a philosophy in relation to
those matters makes one's life as a lawyer rather richer and more
fulfilling even if one can't actually point to a practical consequence of
having developed that philosophy okay I will just ask you now for standardized
questions and we put these to all of our guests on the podcasts
the first is could you share a subject which you found the most compelling
during your time in law school either undergraduate or postgraduate and why
that subject resonated with you well I won't surprise you to hear having dealt
with the questions that we've already dealt with that jurisprudence for me was
the most exciting and interesting subject now I studied law at Oxford both
as an undergraduate and as a postgraduate
doing the BCL and jurisprudence at Oxford was taken very seriously and I
was very fortunate in my choice of college which was University College
that we had probably the three most influential legal philosophers of the
20th century in that college all at the same time Herbert Hart had retired as
the professor of jurisprudence but he was given rooms in the college in his
retirement and he was in the college most days came to a lot of college
dinners and he was very good company and he could stop him in the quadrangle
and ask him a question if you wanted and he would happily stand there and and
answer even if it was freezing cold Ronald Dworkin was the then professor of
jurisprudence at Oxford he had a number of other commitments outside Oxford so
he wasn't there all that often but I met Ronald Dworkin on several occasions and
dazzling and most inspiring professor in face-to-face discussions in this sort
of seminar setting especially postgraduate setting and my personal
tutor was John Finnis and I was very fortunate to have him as my
jurisprudence tutor not just because he was a fellow Australian but because he
profound and distinctive philosophy of law and to have the opportunity of a
mental workout with someone of John Finnis's outstanding ability was one of
the really great pleasures of Oxford as far as I was concerned so perhaps
unusually because not very many Australian students would picture
jurisprudence as their most compelling or exciting subject
but for me jurisprudence really stood head and shoulders above the others in
that very special context in Oxford which I was fortunate to experience
okay is there a particular book or film that's had a significant impact on you
and that you would recommend to law students or young lawyers
well staying with the theme of jurisprudence Herbert Harts the concept
of law is an absolute must read it's a relatively easy read because it's
written in quite colloquial English, and for those like me who are fortunate to have known
Herbert Hart, you can hear his voice in the pages when you're reading it. It's only a
couple of hundred pages long, and it is one of the great philosophical works of the 20th
century, in my view. It really revolutionised jurisprudence, but it did so in a way which
is very accessible and very enjoyable to read. He has many interesting analogies, like chess
and cricket, and so if you find that the prose is getting a little too dense, you're never
far away from an analogy which will liven up the subject matter. But I think it is an
absolute must-read. In fact, I'd recommend that students read the concept of law before
they start studying law.
If they've missed the boat there, then it's never too late to read it. It's still in print
and selling very well for the benefit of Herbert Hart's estate.
And I'd also recommend John Finnes's Natural Law and Natural Rights, which is a more difficult
book to read, but tremendously insightful, very tightly and densely written, but with
many quite brilliant observations, which one is not likely to find in many other philosophical
So they're the two books that I would put at the top of my list. I don't know that anybody's
ever tried to buy the film rights to either book, but the books themselves are most, most
rewarding, and I recommend them strongly.
Did you always aspire to serve as a judge, or were there other career paths you considered
before your appointment to the bench, or perhaps even before going to law school?
Before going to law school, I was rather attracted by the diplomatic corps, and I
thought that would be a very enjoyable way to spend my life. And then I thoroughly enjoyed
the study of law, and decided that I would become a barrister. And I loved the bar so
much that I really put off the decision to come to the bench for many years. And although
I did always have at the back of my mind that I wanted to be a lawyer, I didn't have the
back of my mind an ambition of becoming a judge. I was quite happy to defer it, because
I enjoyed the cut and thrust of the bar a great deal. And one's never sure about making
a change to one's lifestyle, and whether it will leave one just as fulfilled and satisfied
as the life that one is used to.
But I'm pleasantly surprised by that.
I'm pleasantly surprised by the fact that I have thoroughly enjoyed judicial work. It
takes a little bit of time to get used to the rhythm of it, because one doesn't have
the highs and lows of the bar. But once one accustoms oneself to the very different rhythm
and pace of the work, it is tremendously satisfying. And so I'm very pleased that I took the step.
You've mentioned that you had some important mentors.
You mentioned that you had mentors earlier in your career during this conversation. But
is there a piece of advice that you've received that stands out to you and that you'd like
to share with our listeners?
I think the piece of advice that I'd give everyone is that while one can certainly admire
the work of other people and find some exemplars to follow, as I did, fundamentally you have
to be true to yourself.
And if you're true to yourself, then you'll be amazed at the results. So yes, follow the
lead of outstanding mentors, but don't try to be somebody that you're not. And accept
your own strengths and limitations and work within those. And then I think you'll be seen
to be a person of your own.
Thank you very much for joining us.