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Steely-eyed advice takes courage: Hayne

Steely-eyed advice takes courage: Hayne

By Karin Derkley

Climate Change Corporate Social Responsibility  


Lawyers need to give courageous and "steely-eyed" advice to their clients, whether they are a law officer advising a minister of the crown or a solicitor advising their client, former High Court judge Justice Kenneth Hayne said at the Zelman Cowen Centre Oration last week.

"There emerged at one time a view among some practitioners that their primary task was to ease the way for their client, to do what their client wished to do," he said in his live-streamed speech on 'Trust, confidence and public institutions'.

"That's an accurate, but partial statement of their obligation. Often it is incumbent on the lawyer to take one step firmly back, look at overall what is proposed, and say either: No, you can't do that because it's contrary to law, or say: You might do that and it might not be a breach of the criminal law, but I can tell you your reputation will be shot if you do it."

Giving that form of steely-eyed advice takes courage, he conceded, "and it may see the client in a huff gathering the papers up and storming out of the office. And that is going to make for interesting discussion at the next meeting of partners, isn't it? But there comes that time and you've got to do it”.

Mr Hayne said public trust in institutions, including government, has been "damaged, even destroyed" in recent years, as sloganeering has replaced reasoned debate. That explained why difficult issues of public policy have increasingly been referred to royal commissions and other external inquiries.

"Frequent use of independent commissions of inquiry may suggest that governmental structures can now deal effectively only with the immediate emergency and cannot deal with the larger issues that face us."

Mr Hayne pointed to climate change, Indigenous recognition and whether democratic institutions were operating as they should as three issues in which reasoned debate about policy has been supplanted by "three or four word slogans".

"We have seen the proposal for an Indigenous Voice that emerged from the Uluru Statement from the Heart caricatured as a claim to a third House of Parliament," he said. That was despite the Honourable Murray Gleeson, former Chief Justice of Australia, making clear that what is proposed is a voice to Parliament, not a voice in Parliament.

"Describing what is sought as a 'third House of Parliament' may be a convenient slogan for opponents of the proposal but it is simply false. The Voice would advise Parliament. It would have no power to take any legislative step."

Similar levels of sloganeering and peddling of false and misleading ideas have been seen in Australia's response to climate-related issues, he said. "We see climate-change portrayed as a matter of ideological belief rather than as a matter of scientific observation and extrapolation."

At the core of sloganeering and misinformation lies "an unwillingness to grapple with truth", he said. "Those who will not now grapple with the truth will not do that until they feel compelled to do so by those upon whom they depend for success.”

"If those within the institutions of government seek to lead by resorting only to slogans, others must do whatever can be done to provide reasoned and respectful debate, based in truth, for all to see and judge . . . We must not be content with hearing only what we want to hear. We must recognise how uncomfortable the truth can be.”

Mr Hayne also pointed out that both company directors and regulators play a role in ensuring that companies behave appropriately. "For a time there has been an idea that corporations exist for the sole purpose of enhancing shareholder value as measured by share price . . . This I think is a narrow view of directors’ duties. Directors have broader duties than that. Directors and managers need to have a longer term horizon than where will the share price be and what will the profit number be three months or 12 months hence?"

While the role of regulators is commonly regarded as bringing perpetrators to book when there is a breach of fundamental standards, they also had a role to "nudge, to point out, to lead, in effect to teach" companies that their duties go beyond making a profit, he said.

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