Hello and welcome back to the Australian Law Student Podcast. I'm your host Oliver Hammond
and welcome to the start of Season 2 in 2024. We're excited to launch a new season after an
incredible first one where we had the privilege of sitting down with exceptional guests who offer
profound insights into the law. I hope this first episode also doesn't disappoint. As is the case
with all our political guests though, our obligatory disclaimer. At the Australian Law
Student we strive to present a broad array of views about the law and society as a whole.
We are by no means politically affiliated and strive for political neutrality at all times.
Now with that out of the way, let's proceed. In this episode I was honoured to be invited to
NSW Parliament House for a conversation with Alistair Henskins, the Shadow Attorney-General
of NSW. Alistair has an impressive legal and political background, including his time as a
barrister and a member of the NSW Legislative Assembly. Our discussion delves into his journey
into law and politics, the challenges he has faced and his vision for the future of the legal
landscape in NSW and Australia. This conversation promises to be both enlightening and
thought-provoking.
Alistair, thank you so much for joining with me today. You began your professional journey as a
commercial solicitor and then a barrister. Reflecting on your political career, what was
the journey like and can you share any anecdotes that have shaped you and even changed your view
on the law and perhaps its role in society? Yeah, great to be on the podcast and thanks
for inviting me on. Look, I wanted to be a lawyer from quite a young age and excuse me and your
listeners for having a bit of a hard time. I'm not a lawyer. I'm not a lawyer. I'm not a lawyer.
We're cold this morning, so my voice might be a bit croaky. It's not a hangover. I wanted to be a
lawyer from a young age and to some degree, that was a reflection, I think. My best friend's father
was a solicitor, so I think that had an influence on me. I was also, I had an interest in politics
from a young age and obviously, I was aware that many of the leading politicians in the Federation
like Sir Robert Menzies and so on had been lawyers, so that was, I guess, a bit of an interest. I
didn't think that I would be a politician, but I just was interested in politics and thought
law would be good for that. But one of the things that I obviously like about the law and knew even
from a relatively young age was the way in which lawyers could actually help people in very
difficult circumstances and for some of them in their lowest moments of their life actually
fight for justice. And so one of my favourite cases as a lawyer, which I actually mentioned in
my maiden speech, was when I got to represent my high school maths teacher in a case. He had
cataracts in his eyes and he went and had a cataract operation and he was blinded in that
operation. So he had to retire as a school teacher. He was legally blind because of the size of the
cataract in his other eye.
He just, you know, was legally blind and he'd been totally blinded in the eye that had been
operated on. And so he came, he sort of came to me, he was in a pretty low air, but sort of heard
inform me from other people that he'd had this really bad outcome and that he'd had to retire
as a school teacher. And so he came along to me and it was a really hard fight. We really struggled
to get any doctors that would give evidence against another doctor as an expert witness.
So it took a long time.
Even, you know, by the time we could get an expert, almost the limitation period had expired
and it was a huge battle, but, you know, it was amazingly, and we had a series of barristers too.
So the first barrister we had as our senior counsel was Ian Callinan, who became a high
court judge. Then he was appointed to the high court. So then we had, we then briefed Stephen
Wormsley, who was the junior counsel in Rogers and Whittaker for Mrs. Rogers. And then he got
appointed a judge. So third time lucky, I then briefed a barrister. I was, I was junior counsel
by this stage. And we then got in a silk. So I had the case as a solicitor. Then I became a barrister.
Excuse me. I handed it over to one of my partners who looked after it. He briefed me as junior
counsel. And then I suggested we got George Anarti Casey now, who was on my floor and had done a lot
of personal injuries.
And then he gave me the case and I was the second of four.
So you had a lot of good cases for the GIO in his earlier phases of barrister. He's probably the
preeminent building and construction lawyer in Australia now, and that was where he spent a lot
of his practice towards the end of his career. But he came in, we had a mediation in front of
St Lawrence Street, and we're able to settle it on very favourable terms.
That has to be one of the, I think the greatest coincidences. I think we've ever had on this
podcast where you've had a team of lawyers, where two of them have been appointed as judges in the
You were asked to do your thesis and you were very happy to do it.
in the same trial and i guess from a personal point of view you know he was my math teacher
from year nine to year 12 and was you know mass i did three in a mass and and that was kind of
a good mark and helped me get into law so i just felt um a really nice circle and i was able to
help him in his hour of need yeah yeah and i suppose that personal connection i think is often
lost amongst lawyers i think if you can't have you don't have people skills then you don't have a
chance with clients you don't have a chance with yeah helping people in that way generally speaking
though i found that it's not a good idea to represent someone that you know yeah yeah as a
general proposition yeah sure sure but he was at such a low ebb and the battle was so hard in terms
of getting an expert witness that would support his case of negligence that um i i it was actually
quite important that he had someone in his in his court that would really persevere because probably
to be honest there were probably two or three occasions when when we've got unhelpful expert
reports and so on where we could have easily given up the fight yeah he was very um determined
to seek justice and so look that was um that was a highlight but you know the the other there are a
number of other cases that i did which which i'll just talk about very briefly i represented chris
harcher who was a former minister in the farrell government uh before the icac and he had been
um attacked in the opening address by jeff watson in an entirely unfair way um he'd been front page
he was the central person of interest in a donations inquiry against the liberal party
he lost his political career he his reputation was massively damaged but at the end of the inquiry
there was no evidence to find him corrupt and he was not found corrupt and there was a
reference to the dpp about a minor matter where the dpp exercised their discretion not to do
anything about it there was a high question about whether that reference should have been made to
the dpp at all so at the end of the day never any restoration of his of his reputation but obviously
incredibly important to represent him
the world was saying that he had done something wrong yeah um and you know a good example of where
the presumption of innocence is and can be entirely trashed through that process you know
and and the and you know the vitriol that was directed towards barristers representing people
in that inquiry by both the commissioner and council assisting was extreme and difficult
uh but as a lawyer when you stand up for people who are being unjustifiably attacked
that is when you feel like you are most valuable to the community a lot of people make lawyer jokes
and say terrible things about lawyers uh one of my partners i remember when it was a partner in a
law firm in newcastle said uh everybody hates lawyers but they all like their own lawyer
i think that's a very that's a very true statement and i think
to i suppose you talked you touched on something their reputation and i know that um susan kiefel
i think is famous he has said something about one of the most important assets for a lawyer
is their reputation and speaking of that how do you think in i suppose you have the the court
system itself but then you also have the court of public opinion i think some critics would say well
you know well and good that sometimes people their reputation can is perhaps tarnished you know and
that sort of thing the legal standard at times might not reflect what the majority of people
think and so i suppose yeah just to play a bit of devil's advocate then then um what do you have to
say about that i suppose in relation to sort of um the publicity behind things well legal standards
are there for a good reason because they drive reliable decision making and fair decision making
and so if um if there's a damage to your reputation through an accusation which is not
by evidence to make a finding of wrongdoing against you that is incredibly unfair the
difference the difference between say a court process and an icac process for example is that
in a court process there will be or may be damaging evidence going along the way but that is
seen to be process with the ultimate decision being the thing that is ultimately reported
in a high process
and that's ultimately what the public accept as being the truth what happens in icac is it's
actually around the wrong way the major publicity and icac is very good in new south wales at
promoting promoting its accusations all the publicity is actually at the beginning before
the evidence is actually heard um and so and and there's
much less reporting around and and you know you know chris archer which i represented back in 2014
before i came into politics um there were other people found corrupt so the focus was on the people
that were found corrupt none of them liberals by the way the only people that were found corrupt in
that inquiry are actually labor mps so the the publicity was all around people found corrupt
and not around the people who were not found corrupt
so that's um that that's where and and of course in other states the icac process is is is in
in private so the hearings are in private so what they do is more like a conventional court case
they publish the outcome and that's when the public get to hear the outcome i think that's
it's a bit of a concern in terms of how it operates in terms of people's reputation because
um as as your reputation is very important yeah yeah um and it's incredibly important to your
capacity and a whole lot of other things yeah yeah yeah i suppose i'm taking a step now away
from um i suppose your life as a as barish and representing um cases what was your i suppose
stepping what was your pathway like into politics from becoming barish into politics
look i had never worked as a political staffer um i had so uh although i'd been a member of the
liberal party for many years before i was ultimately pre-selected i didn't particularly
aspire to being a politician i had a great career as a as a barrister doing interesting cases that
were uh extraordinarily well remunerated i so the transition was was probably more difficult than
some who have more experience in the day-to-day in politics um but there are some basic skills
of a lawyer and particularly a barrister and a politician
which are very common and i would say they are as follows firstly as a lawyer you have to be
client orientated and sensitive to your client's needs and wants and best interests and as a
politician your clients now become your constituents so that's quite similar and if you have a
a kind of a customer service ethos from um your practice as a lawyer then that will transfer over
the second thing is that there's a lot of public speaking as a politician and obviously as a
barrister or or as a solicitor you get the opportunity to do quite a bit of that so that's
a very transferable skill and the third thing is particularly as a barrister perhaps more so than
necessarily solicitor there's a lot of statutory reading of statutes and interpretation of statutes
and that is incredibly helpful as a legislator
when you're reading government bills um and analyzing them and considering um what how
they're likely to be interpreted by the courts and therefore whether the bill actually reflects
the intention yeah behind it but i suppose you've spoken about some of the skills that lawyers can
bring into politics and now an observation that's often made by people in the media and members of
the public is that politics is dominated a lot by people who have come from legal backgrounds
or have had legal training what do you think about this do you think about the legal background
i think that this is a is advantageous for politicians and that's why we see the high
numbers um and that perhaps or is there is there a um is there a case to be made for people who
aren't from the legal background that have a place in politics as well well i think um being
involved in politics is a natural extension of being a lawyer because in a sense as a practicing
lawyer you're involved in the administration of you know the the administration administration
the practical side of the law and as a politician you're involved in the policy formation and the
making of law there's a natural relationship between the two you do need a range of people
in politics there's no doubt about that so you don't want a parliament full of lawyers but
certainly having lawyers around i mean your critical thinking skills and your logical
thinking skills that you obtain and problem solving as a lawyer is very helpful as a lawyer
you're involved in getting technical you know accessing technical information processing and
understanding it being able to use it certainly as a barrister i did a lot of technical cases
where i'd have expert witnesses so that gives you some skills in terms of learning about a whole
lot of areas and diverse areas in a critical way and that's very helpful as a politician what you
know whether you are an expert in the area or not you can always rely on other people
who are experts and critically evaluate what they're saying to you and of course you have
some skills to resolve conflicts in expert opinion which is often the case in the court system and
also in political life so i think there are a range of skill sets that lawyers have which are
beneficial the other thing i would say is there are a lot of people with law degrees in politics
there are not too many that have actually practiced at a high level in the law
and and there is a difference between the two
just because they have a legal training it doesn't mean that they're necessarily other than a person
with a qualified law degree it doesn't mean that they're really what i would call a true lawyer
which is someone that not only has a law degree but has actually practiced widely as a lawyer
and i suppose i think i remember someone who told me i think it was a previous boss of mine he said
that a lot of politicians all politicians are lawyers but not all lawyers are politicians and
it's i think that in politics you are using basically um almost a lot of people who are
almost all of the same reasoning skills and the sort of legal analysis as a law
you're right it's very transferable i suppose now we've reached the time in the podcast but we'll now
transferable i suppose now we've reached the time in the podcast but we'll now
move on to some set questions which were written lighter and um used to um for our audience to gain
a better understanding and perhaps a relationship with you and i'll move on to the first one rainy
your favorite subject in law school and and why i really like criminal law
i really like criminal law
and i was a great fan of ron paul of the bailey and i don't know if uh it's probably past your
probably past your generation,
but there was a great program in the 1970s and 80s
called Rumpol of the Bailey,
which was modelled on an idealistic maverick lawyer,
probably a kind of a rake of his time,
English barrister,
who actually the starring character
was actually an Australian actor called Leo McCurne.
But it was written by John Mortimer,
who was a second generation barrister in London,
who effectively chose a less remunerative career
as a criminal barrister
because he liked representing the individual against the state.
And so he was an old-fashioned lawyer in that sense.
I think a lot of people who love criminal law
like it for that reason,
the idea of being able to stand up for the little man,
And I think that's a really important part
and I think a really important desire amongst lawyers,
especially once they go on to practice criminal law.
Moving on to the second question,
what's one habit you believe has been pivotal
to your success in the legal field?
Look, I think diligence and hard work and consistency.
There's no doubt that to be a good lawyer,
at times you have to put everything in your life
behind your work.
I'm not saying all the time
and I'm not saying that that's good to do it
too much of the time,
but there's certainly periods where to be a good lawyer,
you've really got to focus and work.
And I've had a number of those moments in my life
where I've had big cases,
usually interstate cases.
I did the, as a junior barrister,
I was in the hearing at first instance
all the way to the high court
in a trade practices case called NT Power Generation
and the Power and Water Authority,
which was actually a little kind of small business person.
Well, you know, I had a lot behind him,
a single business person trying to take on
a monopoly publicly owned utility
who was denying him access to the electricity market
to be able to sell to consumers in the Northern Territory
at a price which would have been substantially lower
than the public monopoly.
That was a case that I was briefed in,
a two-week case in the Northern Territory
that went for five months.
And I had a young family at the time,
so that was pretty hard.
As a younger lawyer,
when I was only 27 without any children and unmarried,
I did a big defamation case in Brisbane,
which was a 12, 13-week trial in front of a jury,
12 weeks of evidence.
They were out for a week before they delivered their verdict.
But that found that a businessman called Sir Leslie Teese
had been bribing the Premier of Queensland
on a large scale and on many occasions.
That was the finding of truth.
It was a defamation case for Channel 9
and A Current Affair.
There are times when you are required
to kind of put your life on hold a bit
and those interstate cases are hard
because you kind of lose contact with your friends and family
and all the rest of it.
But you learn so much out of them
and you develop so much as a lawyer
and you have great war stories as a consequence.
Yeah, yeah, yeah.
I think a lot of lawyers perhaps are a bit scared
to take that next step.
In doing something like that,
going interstate or going even international,
that sort of thing.
But we have talked to people in the past
who've done things like international law
and have talked about how rewarding it is
to practice in different jurisdictions
and that sort of thing
and the experiences that they can have from that.
I would say this,
that the thing that I've learned,
as a lawyer, you tend to be quite conservative,
but every career risk I took always paid off.
So I started a big commercial law firm.
I was offered a partnership in a small law firm in Newcastle.
A lot of people thought I was crazy to do that,
but I went and did that.
I got great experience,
experience that I never would have gotten in a big law firm.
And then I took another risk
and came back to Sydney and became a barrister
and that was also a big risk, but it paid off.
So going into politics was a big risk too.
So, you know, if you want to do interesting things
and lead a rewarding life,
you've got to be prepared.
You've got to be prepared to take some calculated risk.
You don't want to just take crazy risks,
but, you know, calculated risks.
And moving on to the last question now,
do you have a book or a movie that's significant to you
and one you'd recommend to students?
I think a question sort of singling out one.
Look, as a lawyer,
I used to really enjoy reading Gresham books.
Very, very, very good,
particularly on a plane or a journey or whatever,
because you just sit down and read the whole thing.
Also, I used to love,
actually, Basil Rathburn and Sherlock Holmes.
I've got the complete works of Sherlock Holmes,
so I used to quite like.
So I tend to go through binges,
but, you know, if law students are interested in that,
if they're interested in becoming a barrister,
I think reading John Mortimer books on Rumpole,
there are a number of omnibus, Rumpole of the Bailey.
Rumpole is a play on words.
And they just allow you to reflect on what a rump is
and what a hole is.
And so they're very good.
And they're a very good reflection, I think,
of the life as a barrister and the characters who are in your chair.
Yeah, yeah, that makes sense.
Well, Alastair, thank you so much for joining me today.
We've reached the end of the podcast.
So thank you very much.
And good luck with the Australian Law Student.
I think this is a great idea.
All the best for the rest of the year.