Rule of Law: Robin Speed Memorial Address
Given by Mr Sofronoff KC
Part 1: Introduction
– The speaker Mr Sofronoff KC
– Why has the Rule of Law arisen in human existence?
Mr Sofronoff KC 
Margaret Cunneen SC introduced Mr Sofronoff KC at the Rule of Law: Robin Speed Memorial lecture by saying:
Ladies and gentlemen, it is axiomatic that the courts exist to vindicate the rule of law. These are the words of our esteemed guest, one of the most eminent jurists and one of the most brilliant barristers Australia has ever produced. The Honorable Walter Sofronoff KC, who pays us the great honor this evening of delivering the second rule of law, Robin Speed Memorial address.
There can be no liberal democracy in the absence of the rule of law, and the rule of law as it is understood in such a polity requires the existence of independent judges so says Mr Sofronoff, who was as a Justice of the Supreme Court of Queensland and the President of the Queensland Court of Appeal from 2017 to 2022, the archetypal independent judge. Former Queensland, Chief Justice Holmes said when Walter Sofronoff was farewelled from the court, that he was one of those rare all rounders in the profession who can turn his hand to anything and perform it at a rare level of excellence. Well, an all rounder, all right, and not just in the law.
He flies Tiger moths. He writes film scripts, plays guitar and drums, as well as the Rolling Stones, and he drives Ferraris. He’s a member of the panel of the International Court of Appeal of the Federation International Intermobile, which hears appeals from International Motor Sports participants. Before he was a judge, Mr. Sofronoff was a barrister for almost 40 years, 30 as silk as Queens Council, which included 10 years in the position of Queensland Solicitor General. He served as the president of the Queensland Bar Association, which is a testament to the respect in which he is held by the Bar. And to his leadership ability, he practiced in all areas of the law, including of particular interest to me, in crime.
His advice to defense barristers includes the elegant and efficient exhortation “Just contest your point. There’s just one thing. Many points don’t really matter. Illuminate that one point then it is for the Crown to prove everything. As a defence counsel, one has only one point.” In a 2015 address to the Criminal Lawyers Association of the Northern Territory, he said, “we speak of the barrister’s duty to the court. However, I think we really mean the barrister’s duty to the rule of law. This can be seen from the occasions when it will be the barrister’s duty to challenge the court itself.”
Walter Sofronoff’s unwavering and lifelong commitment to the rule of law comes in part from his upbringing in a Russian household. His father was a Cossack who escaped Siberia on horseback in the 1930s. When he was a fledgling barrister, Walter’s mother was nonplussed when he told her he was representing someone who was suing a government instrumentality. “Can you do that?” she asked. Mr. Sofronoff has said of his father, he had experienced order under tyranny, the kind you achieve by obedience. But what he wanted as a refugee, and what he found here was order of a different kind. And by order, he really meant the rule of law.
When he represented the Wik peoples in the High Court Land rights case of 1996, Justice Michael Kirby said that it was the best opening argument he had ever heard, it was powerful; electric. He did not squander that historic moment, utterly fearless and steadfastly above politics or legal fashions. Mr. Sofronoff KC conducted the Grantham Floods Commission of Inquiry in 2015. In 2022, he presided over the Inquiry into forensic DNA testing in Queensland and uncovered numerous irregular practices, which had impeded the course of justice in criminal cases in particular over many years.
And last year, as we probably all know, Mr. Sofronoff was handed what might be seen as something of a poison chalice. The Board of Inquiry into the Criminal Justice System of the ACT. But as he might say himself, drawing from his late father’s wisdom, good luck, bad luck, too early to tell.
That the hearings of the Board of Inquiry were live streamed, and they were viewed, as we all know, by many, many thousands of people for weeks. And in this way, many people, not just lawyers, came to learn of the brilliance of Walter Sofronoff. My friend and colleague Steven Whybrow SC, who was called as a witness in the inquiry, having represented Mr. Bruce Lehrmann at Bruce’s criminal trial, told me how he had prided himself on being the the type of lawyer who could identify the tree in the forest. But as, as Steven told me, Walter Sofronoff can see the hair on the caterpillar, on the leaf, on the tree, in the forest immediately.
And it was not just his razor sharp intellect and his percipience, it was other things like his even temperament and indeed his empathy that people observed and admired.
Why has the Rule of Law arisen in human existence?
In his address, Mr Sofronoff KC questioned the place of the Rule of Law within human nature:
“I am glad in this country we take for granted the Rule of Law because it meant it is well established. It is not a life or death matter. Pretty much everyone in this country assumes its existence, believes in it and expects others to believe in it. Most do not know the details of it or even that it has a name.
Why has this idea arisen in human existence? Why did this idea arise?
Is it part of human nature? Could it be part of being human? Is the Rule of Law part of human existence? Why does this arise and come from?”
Part 2: Understanding DNA and Altruism
“I did the DNA Inquiry and I have to tell people about it now as I feel an urge to unburden myself of the knowledge”
– Mr Walter Sofronoff KC
How do you get co-operation?
Mr Sofronoff considered the ways societies co-operate:
“Community living requires co-operation. You can get co-operation in a variety of ways and one of the ways you can get co-operation is through violence. So in some old civilisations, and some modern communities, that is the way you get co-operation. If you do not co-operate, I will kill you. Or I will kill your family and then I will kill you. Pretty quickly you will get the level of co-operation you will need.
You can also get co-operation by persuasion. We have language and the power of reasoning so we can obtain co-operation by persuasion. Why did animal’s evolve to co-operate? It is useful, but why did they do it?”
A lesson from sociobiology:
Selfishness beats altruism within single groups.
Altruistic groups beat selfish groups
Part 3: Threats from Within
Impact on DNA and the lesson in Sociobiology for the Rule of Law
Mr Sofronoff KC then concluded:
“Co-operative societies do better than ones in which dog eat dog. The most complicated social structures that exist, ours, are made from very high levels of cooperation involving adherence to detailed principles and rules. And these principles and rules must take account of the fact that an instinct for altruism is not universally manifested.
It largely is manifested, but not always. Otherwise, you wouldn’t need laws…
The idea of a cooperative society may be instinctive and it may be reinforced by culture, or it may be, hampered by culture, but it’s still just a seed.”
An assumption of the Rule of Law in Australia
“The lawyers who drafted our Constitution didn’t see any need to refer to any of these things: No separation of powers, no Bill of Rights, no mention of responsible government, no mention of free speech, no mention of independence of judges, the impartiality of judges or the Rule of Law.
They did assume, and it never arose for discussion as a matter that had to be written down in some form.”
Education Video
Mr Walter Sofronoff KC spoke to the team at Rule of Law Education Centre and provided further explanation about how the Australian Constitution and its unstated assumptions hold our government accountable.
Impact on the Rule of Law in Australia
“Wherever people come from, they are all essentially the same. And it can be proven by close, detailed examination of us humans. That is both so in terms of our physical makeup and in terms of our behaviour. Institutions such as courts and parliaments are groups of people like that who, as members of a group become judges, police etc.. people who, as members of that group, share a common appreciation of their expected behaviour. They expect it, they intend to deliver it themselves, and they expect it to be delivered by others.”
“And if they’re doing things for the same purpose, generally in the same way, according to the same assumptions, well, by goodness, it’s a institution and it has a continuing vitality. It will survive.”
Threats to the Rule of Law in Australia
“I do not believe that there is any imminent risk to our way of life in anything of which I’m conscious here. I do not believe that there are any risks to our way of life in terms of the rule of law from the inclusion of immigrants.
The risks that we face are much more subtle. I think that they are internal. They are risks that arise from the activity of people who have particular personalities, no doubt, genetic, and their personalities- some of them are narcissists, some of them are zealots. They’re all ignorant of the things.
The danger lies in those sorts of people. None of those sorts of people are going to lead a revolution or try to promote a sudden change in the way that our system of government works. What those sorts of people do is to intrude incrementally so that damage is done. And if it’s allowed to be done, it may be done so many times that we become habituated to it.
We need impartial judges. We need judges who are independent of the executive. What we mean is judges who are independent of politics.
A judge has no right to conduct a trial according to his or her own special ideas of what a fair trial to look like in order to achieve some idiosyncratic personal aim. A judge who seeks to conduct a trial that way is incrementally damaging the rule of law. Moreover, a judge who enters the political arena to advocate policy about how trial should be conducted generally, or in specific circumstances, is also in engaging in activity that is unbecoming a judge, because a judge must remain impartial and independent. And as soon as you wed yourself to publicly to a policy that you advocate, you become a politician. So that’s the kind of danger you have. ” ..
“We have to be able to, in our democracy, vote for the people that we want to vote for. That means that we have to have the information that we need in order to make a proper judgment about who we should vote for. That is called free speech.”
“You need political discussion. And political discussion is often harmful to reputations and hurtful. But you need that because that is essential. One of the things that you need to know about as a citizen is what the government is doing. And one of the things that most governments would rather you not know is what the government is doing. So they have laws correctly to ensure the public servants and other agents of government ought not to speak about government affairs…
There are many things that ought to be kept confidential in government work, but some things ought not. And they are often things that the government would wish to ensure are never known, although they ought to be.
So here’s the thing. The continued existence of our constitutional democracy depends upon citizens being promptly and accurately informed about the doings of government. Much of that information, perhaps in many cases, all of that information, is information that’s obtained by journalists and communicated by journalists. Much of the work of government is confidential, as I’ve said, and even some of that is information that is obtained and communicated by journalists.
There ought to be restrictions upon the ability of journalists to get some information, but in other cases, there ought not be. And so, a government that seeks to restrain journalists’ access to information wrongly, is by that means encroaching upon constitutional democracy, the operation of the rule of law, because it precludes knowledge that would guide voters in the decisions that they’re going to make about the future.”
Education Video
Mr Walter Sofronoff KC spoke to the team at Rule of Law Education Centre and about an independent judiciary and separation of powers.
He says about totalitarian regimes, judges “not only apply the law but are also faithful to the policy of the government. Now once you allow that, then judges are no longer independent and impartial, they are agents of the government in executing government policy”
Conclusion
“We are all the same where it matters. The respect in which we are all the same, despite cultural differences, means that any threat to the rule of law will not come from interaction between groups and, and offensive, attacks upon our, our system of governance by some group or some outsiders coming.
It will come from wrongheaded narcissists and zealots here who have ideas about what ought to happen, that they don’t appreciate conflicts with these essential principles that ought to be eternal.
My view is that our institutions, because they actually consist, they have a name, there might be a building, there’s a statutory structure to them, and to a degree, a physical structure, but they’re constituted by people.
And those institutions, I would put this forward without much risk of being proved wrong almost all unanimously consist of people who hold the same assumptions as we do. To the extent that they do not, they are strong enough to withstand the assaults that are occasioned by them.
The thing to watch are the incremental intrusions into those courts, the court practices that reflect our beliefs, not some, fear of, a large gross assault by a lot of people or by some outsiders.”
What is the Rule of Law: Robin Speed Memorial Address?
What does the Rule of Law Education Centre do?
Education Videos
Mr Sofronoff KC also sat down with one of our paralegals Kate, to chat about rule of law issues aligned with the curriculum and our resources.
These include: