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LIV 160th: The barrister boycott

LIV 160th: The barrister boycott

By Simon Smith


In the third of a four-part series historian Simon Smith looks at a remarkable episode in legal history, the rebellion by barristers against amalgamation.

From 1838, when solicitors first arrived in Melbourne, the denial of rights of appearance in the Supreme Court rankled. That remained the exclusive province of expensive, bewigged barristers. Over the next 50 years there were numerous legislative attempts to break the monopoly but all failed until the passage of the of the Legal Profession Practice Act 1891

Known as amalgamation, it gave the 640 solicitors then in practice in Victoria (including 120 LIV members), the right to appear in the Supreme Court and barristers, the right to practise as solicitors. The educational pathway to admission became the same.

Meanwhile, the estimated 82 men who practised as barristers mounted a rear-guard action against the implementation of the amalgamation legislation. As with previous reform attempts, it threatened their monopoly, prestige and incomes. The public purpose of the legislation, in making justice affordable, did not trouble them; they organised a boycott. John Forbes, who has examined the period in some detail, has called it “one of the most remarkable episodes in Australian legal professional politics".1 The rebellion was led by senior barrister Dr John Madden with the assistance of Isaac Isaacs and Henry Bournes Higgins. All three would go on to attain high judicial office.2 They actioned their plan within a week of the grant of Royal Assent and on 30 November 1891 a sub-committee presented plans for a Bar Association based on a set of 29 rules. Fifteen barristers attended. This is the first time the Victorian Bar seriously organised.  All barristers were formally asked to sign what amounted to a pledge to support the boycott. Not to join would see them ostracised. 

The boycott plan opened with much press attention. It was aimed at freezing out solicitors who might don wig and gown to appear in the Supreme Court as amalgams, as they came to be derisively called by the association. Further, any firms of solicitors who wanted access to association barristers would have to abandon plans to employ in-house solicitor/advocates or independent amalgams. 

Central to the plan, in the view of Isaac Isaacs, was to win the support of the top tier firms of the day such as Gillott, Croker and Snowden, Blake and Riggall, Davies and Campbell or Malleson, England and Stewart. If these firms could be persuaded, directly or indirectly, not to champion non-association advocates, then the Act would fail and barristers would preserve their monopoly position.

The formation of the Association and its boycott plans was of course a contempt in the face of the new legislation. It was in effect, a strike. There was irony here as it had been the leaders of the Bar who had been among the most antagonistic towards striking trade unions during recent maritime and other great strikes. However, the government did not intervene. Attorney-General William Shiels, himself a barrister and future premier, made a number of statements to parliament disapproving of the boycott but could only assure honourable members that if evidence came to hand, he would authorise prosecutions for conspiracy. It never happened. 

For its part, the full Institute Council met promptly when news of the boycott first broke and resolved that the Institute would not recognise the new association. Just over a week later they reported to members at the annual general meeting. It was a passionate meeting where long-established tensions between the “upper branch” and the “lower branch” were on show. Members expressed their personal feelings on the issue. 

The barristers were combining “to take the bread out of other men’s mouths”, “[we should] not put up with dictation from any body of men, no matter how high a value they put on themselves”, and “. . . the bar had shown a patronising superiority which was to be deeply regretted". The Institute next convened a general meeting of the profession to sound out the views of non-members. Once more, these were uncomplimentary of the Bar. The view was expressed that it was a mistake to lay quietly by in the expectation that the Bar Association would fail as “deep down in the hearts of [its] members was the feeling that they were of a superior porcelain, whilst attorneys were hardly clay, but mere dirt". The meeting confirmed the decision not to recognise the association, but decided “not to take any aggressive action”.3 It was a strategic mistake.

Significantly, as it turned out, the Christmas/New Year break then intervened. When the profession came back from holidays, the association softened its public profile. In February, the association formally announced its disbandment.4 Unstated was the fact that they had won the battle. There was no need to further provoke the general public or establishment lawyers. The campaign had lasted just a few weeks.

Certainly, there had been criticism from the press including the satirical Melbourne Punch. Even the emerging Trades Hall Council condemned the boycott action. However, it is unlikely that this criticism was the major influence in the decision to disband. In reality the Bar had won, as the leading firms had declined to champion amalgams in the face of the aggression of Madden and his cohort. 

They clearly decided that they did not need the aggravation or the loss of access to senior counsel. However, in the country centres, the legislation did work, as it simply ratified the de facto fusion that had operated there for some time. 

Over a century later this “remarkable episode” has moved into history as both branches settled into what has essentially been a peaceful co-existence. Certainly, Forbes excepted, it has received cursory attention from historians. Both published histories of the Victorian Bar give a benign analysis of the Bar’s role in the period. As Forbes notes:

Forde is amused by the manner in which “the leaders in both branches allowed the Act to be a dead letter". Dean blandly observes that “owing to the ingenuity resource and the will, the practical result was nil". If the boycott was not conducted with great discretion at the time, it has certainly been presented with discretion ever since.5

Dr Simon Smith is the author of Solicitors and the Law Institute in Victoria: Pathway to a Respected Profession 1835-2019, to be released later this year.

1. John Forbes, The Divided Legal Profession, 1979, 115.

2. Madden would become Chief Justice of Victoria (1893-1918); Isaac Isaacs, Chief Justice of High Court (1930-1931) and Henry Bournes Higgins, High Court Justice (1906-1929).

3. “The barristers boycott”, The Age, 22 December, 1891, p5.

4. “The barristers boycott: collapse of the Bar Association”, The Age, 6 February, 1892, p10.

5. Forbes, 122 quoting Forde, J, 308-309 and Dean, A, 101.

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