MONASH
UNIVERSITY FACULTY OF LAW
VALEDICTORY
DINNER 29 NOVEMBER 2000
RETIREMENT
OF PROFESSOR LOUIS WALLER AO
SIR
LEO CUSSEN PROFESSOR OF LAW, MONASH UNIVERSITY
The
Hon Justice Michael Kirby AC CMG
I
ORIGINS
The retirement of a Foundation Professor of one of
the nation's leading law schools, is a notable event for
the law. The retirement of Professor Louis Peter Waller
marks a watershed in legal education in Australia.
We should therefore remember his many notable achievements
and contributions. These are recorded in the minute
of appreciation adopted by the Faculty Board in a handsome
tribute recording his work as a scholar and teacher from
1956 to the dawn of a new century.
As that minute, composed by Professor Richard Fox, records:
"He is the most senior
of the Professors of Monash University, having been appointed
on 1 June 1965. This represents over thirty-five
years of service to the Faculty and the University.
... For over three decades Professor Waller has served
this Faculty with distinction and enhanced its reputation.
... [T]his Minute records the Faculty's gratitude to him,
our personal affection for him, and the high regard in
which he will always be held by generations of his students".
Although all of these tributes are deserved, the
gratitude clearly travels beyond Monash University, its
law faculty and students. For Louis Waller's service
was to an even larger cause - that of law and justice
and of humanity.
How did this come about? To answer that question,
it is necessary to go back to the beginning. The story
began long before his appointment to Monash in 1965.
Indeed it was long before he commenced his academic career
in the University of Melbourne in 1959. Come back
with me to Siedlce in Poland, on 10 February 1935 when
the young Peter Louis Waller was born to his parents, Jack
and Hilda. It was an extremely dangerous time to bring
into the world a Jewish boy. It was specially dangerous
in Poland, soon to be engulfed by occupation and a fearsome
barbarity. Siedlce is 100 kilometres east of Warsaw.
As the crow flies, it is about a 150 kilometres from Lodz.
Closer still, and to the north-east, was a sleep vacation
spot known as Treblinka. Within five years of the
young boy's birth, these names, and the names of other Polish
towns, would be written indelibly, in blood, on human history.
Happily for Australia, for scholarship, for the law
and for humanity, Jack and Hilda Waller were able to escape
from the advancing peril. In 1938, the year of the
Anschluss, they left Poland. They came to Australia.
Most of Louis Waller's family, who stayed behind, perished
in the Holocaust. Reflecting on his gifts, of nature
and of spirit, we must remind ourselves of the catastrophic
loss to humanity that occurred to those who did not escape.
I do not doubt that this thought has weighed on Louis Waller,
as it should on us. The thought should encourage those
who are lawyers, especially, to dedicate their lives (as
Louis Waller had done) to the rule of law, to constitutionalism,
to fundamental human rights and the defence of the vulnerable.
When I visited Europe earlier this year I went to
the Netherlands. There, four years after Louis Waller,
my partner, Johan, was born. Like any child of those
times, he too is haunted by the memories of the Occupation,
oppression and deprivation. In Amsterdam I visited
the Jewish Museum. It has been rebuilt on the site
of two Synagogues, vandalised during the war. In it
are collected the humble memorabilia of centuries of the
peaceful lives of Jewish families who sheltered in the Netherlands
under protective laws dating back to the Dutch Republic.
As they usually do, my footsteps took me to the Ann Frank
Huis on the Prinsengracht. There are found the reminders
of a family on the side of Europe opposite to Siedlce, who
nearly escaped but were betrayed in the closing days of
the Occupation. It is impossible to visit that place
without tears. On the wall is a photograph of the
President of the Constitutional Council of the Netherlands
at the time the German Occupation began, Mr Visser.
He was removed from office because he was a Jew. Under
that a photograph of a scene, near the Central Station,
to round up Jews, is a salutary instruction:
"People of the Netherlands.
This was not done only by the Germans, by foreigners.
It was done by Netherlands policemen, farmers, storekeepers.
We must look into ourselves for the explanation and not
only blame others".
A book at the exit of the Huis records the names
of 105,000 Jews of the Netherlands who did, after the War,
not come back to that peaceful and tolerant kingdom.
For curiosity, I looked to the name "Waller".
There were two by that name recorded in the seemingly endless
lists - each name a microcosm of a whole world of personality,
experiences, feelings and suffering. It is a book
that records evil that later generations must not forget.
Tyrants and sadly not only tyrants, hate difference.
Their hatred has often been turned on Jews. But, as
Hitler's tyranny showed, it can also be targeted at other
minorities: communists, gipsies, homosexuals, religious
dissidents, the physically impaired, in short those vulnerable
to populist campaigns amongst the fearful. Sadly,
some of these attitudes persist even to our own time.
We must be alert to them. We should never forget the
lessons of the oppression. Lawyers, especially, have
a duty to stand up and to align themselves with justice
and fundamental human rights defended by law. That
gives nobility to our calling.
In November 2000 I set out for Quito in Ecuador.
My function was to participate in a meeting of the International
Bioethics Committee of UNESCO. It was a meeting whose
subjects were, I know, of the greatest fascination for Louis
Waller. The ethical acceptability of research on embryonic
stem cells. The limitations necessary upon intellectual
property protection of undifferentiated gene sequences.
The rights of people with genetic "disabilities"
in the age of the Human Genome Project. Public education
about the intricate and sensitive issues presented by genomic
discoveries.
As I left Sydney, Johan pressed into my hands a book
he had just acquired. He urged me to read it on the
long journey across the Pacific and across America.
It is a book by Christopher Browning, Nazi Policy, Jewish
Workers, German Killers.
Somewhere over the ocean, after reading again of
the Lodz ghetto, of the methodical processes of extermination
and the seemingly chaotic chances that made the difference
between survival and death, I came upon an arresting passage
of this book. It was written to the author by a Jewish
survivor, born not far from Louis Waller's birthplace, but
ten years earlier. The letter tells the story more
powerfully than I can:
"As a fifteen year
old Jewish boy, I was sent by the Judenrat as a punishment
to my father to do maintenance work in the headquarters
of the German Police. The town then called Auschwitz
had no running water. I carried water and polished
their boots until March 1941 when the whole Jewish population
had to leave. The whole police company came from
the town of Waldenberg in Silesia. I came across
men that in my opinion could not hurt a fly. Walter
Stark, Max Maetzig ... and so on. Two of them were
willing to make out false papers and send me as a Pole
to work in Germany ... As faith wants it, in October 1944
I was taken to the KZ Waldenberg. In January 1945
we were taken to dig so-called ... anti-tank ditches ...
on the outskirts of town ... One evening going back to
the camp a child was playing on a sidewalk. I recognised
him as Horst Maetzig, who I met with his parents in Auschwitz.
His father Max Maetzig was one of the policemen.
Of course, you know we were guarded by SS. I could
not help it as we lined up with the boy, I exclaimed Horst.
He took a look and ran away. The next day he was
standing there with his mother Elisabeth, and [she] just
nodded with her head. I appreciated that now very
much. For the next two months, she and the boy stood
there, it was a tremendous boost for my morale.
I will never forget it".
As we remember Louis Waller's origins, and the frightful
suffering and his most fortunate escape, we should also
remember Horst and Elisabeth. The duty which morality
requires, and the law at its best protects, is standing
up. Of being brave when it is painful and even dangerous.
Of just being there to show human solidarity and respect.
In a life, such as Louis Waller has lived, it is not enough
to begin with his academic laurels. To understand
him, and the wellsprings of his humanity, it is essential
to journey back to Siedlce.
Louis Waller is another product of the famous University
High School in Melbourne. Australians should not undervalue
their public schools. Often, as in my own case, they
are the medium that ensures true equal opportunity, on intellectual
merit, of children of parents with modest means.
In the 1950s Louis Waller attended the University
of Melbourne where he graduated in 1956 and repaired to
Oxford University where, in 1958, he took his honours degree
in law. He returned to Melbourne and became that most
lowly of academics, a tutor. By the end of the 1950s
he had risen to senior lecturer in law at the Melbourne
law school. Justice Kenneth Hayne was one of a class
of 120 law students who in 1962 enjoyed the stimulus of
this gifted teacher. His subject was Introduction
to legal method. He taught the subject with texts
and cases after a methodology introduced in that law school
by Professor Zelman Cowen. He would wander around
the classroom as he lectured and contemplated which hapless
student victim he could tax with his next question.
Watching Justice Hayne at work during a hearing in the High
Court, I have sometimes wondered where his technique of
interrogation originated. I need wonder no further.
At the time Louis Waller was teaching the fledgling
Kenneth Hayne, Gareth Evans and other charges at the Melbourne
law school, a new University was being established in Melbourne.
It was named after General Sir John Monash, a Jewish Australian,
a gifted soldier and a graduate in arts, engineering and
law of Melbourne University.
Following adoption of the idea in 1958, the new campus was
formed in the rural suburb of Clayton, named suitably enough
(for lawyers anyway) after John Hughes Clayton, an English
solicitor who set up his plate in Melbourne in the middle
of the nineteenth century. The story of those early
days is told in Peter Balmford's essay on the foundation
of the Monash Law School.
Because of his strong friendship with Professor David
Derham, foundation dean, it was unsurprising that the young
law teacher should have been invited to move with Derham
to Monash and to help create the new school. According
to Justice Hayne, Louis Waller was an "electric"
law teacher. His students speak of his remarkable
capacity to inspire, stimulate and fascinate the mind about
the quandaries of law. But he was also a considerable
writer. He designed, wrote and refined texts and case
materials.
With Professor Peter Brett at Melbourne University he published
the first Australian casebook for teaching of criminal law.
It was an antidote to "the more expository and dull
English texts which were then in general use".
It drew on interdisciplinary sources. It explored
United States as well as Australian and United Kingdom authority.
Criminal law in Australia would never be the same.
In an essay written years later,
examining the puzzles of biotechnology and law, Louis Waller
was to reflect on the advantage which he had enjoyed in
participating in the resolution of the early problems of
biotechnology:
"When Alfonzo the
Wise, King of Castile, studied the Ptolemaic system, seven
hundred years ago, he commented: 'Had I been present
at the Creation, I would have given some useful hints
for the better ordering of the Universe'. Alfonzo
spoke with the arrogance of hindsight. We now are
'present at the Creation' and upon us rests, unequivocally,
the obligation to effect the best ordering of this new
universe".
In terms of the Monash Law School, Louis Waller,
like King Alfonzo, was present at the Creation. He
showed no arrogance; but much wisdom. Above all, he
elevated study of the discipline of criminal law to the
high standing which it should enjoy in law teaching.
In the past, criminal law had often been denigrated, especially
in some parts of the practising legal profession and judiciary.
Doubtless this was because criminal cases could not usually
command the best and most fashionable talent of the Bar.
Such talent was commonly conserved for the large commercial
disputes which, all too often, represent little more than
complicated debt recovery.
It is not often that I feel confident to speak for
a unanimous High Court of Australia. But for Louis
Waller's consistent and sustained contribution to the teaching
and analysis of criminal law, I consider that all Justices
would express thanks to him. It is perhaps a measure
of his legacy, in this regard, that one sees the growth
in the consideration by the High Court of criminal law,
procedure and sentencing in recent years. Anyone in
doubt of this should contrast the number of cases concerned
with those subjects in the previous consolidated index to
the Commonwealth Law Reports, and those in more recent
editions. Citizens of Australia undoubtedly consider
that criminal law is one of the most important tasks assigned
to practising judges and lawyers. In this respect,
citizens are rarely wrong. The criminal law defines
the kind of community we live in. It distinguishes
our form of society with that of oppressive and autocratic
lands where the state, in the name of suppressing crime,
suppresses much liberty as well.
It was Louis Waller who brought this point home to
me twenty years ago, soon after we first met in law reform.
He will not recall this incident; but it had a profound
corrective effect on my thinking. Although I was never,
like Justice Hayne, formally his pupil, Professor Waller
taught me a lesson fundamental to the criminal law which
is still with me.
In about 1980 I was invited to record on video film,
for a purpose that I cannot now remember, a model charge
to a jury in a criminal case. I fear that I was chosen
for my familiarity with cameras and television lights rather
than with the basic principles of criminal law. I
read my script with suitable gravitas. But I did so
uncritically. In the script, I was required, at one
point, to tell the jury: "It is for you to decide
whether the accused is guilty or innocent". Wrong.
Louis Waller saw the film. Gently, but insistently,
he wrote to correct my error. It is not the
jury's function to decide the guilt or innocence of the
accused. Their function is to decide whether the Crown
has proved the accused guilty, and done so beyond reasonable
doubt.
This is the very essence of our accusatorial system.
It is central to our liberties. It defines the kind
of society we are. It keeps the power of the state
in check. It is often misunderstood. But it
should not be misunderstood by lawyers, still less by judges.
Since that exchange, I have never forgotten this
vital lesson. Our criminal justice system is accusatorial.
Its search is not, as such, for guilt or innocence.
It is for whether the prosecution hes proved the accused
to be guilty. If it has not, the accused may be guilty
or innocent in fact. But the jury must return the
verdict of not guilty which, conventionally, is treated
as a holding of innocence. In recent decisions in
the High Court, I have had occasion to participate in decisions
expressing the correct doctrine.
I hope that I have repaired my eggregious default.
Meanwhile, at the Monash law school, Louis Waller
began to reach out to international projects. His
fame spread. He was much in demand as a Visiting Professor
in overseas faculties or as a scholar in residence -
as he was between 1972 and 1974 with the Law Reform Commission
of Canada. But soon, the boundaries of his scholarship
were to be stretched in a direction that could not have
been contemplated, even at the time when he assumed his
chair in law at Monash University.
In 1982, Professor Waller's reputation as a jurist
led to his appointment as Law Reform Commissioner of Victoria.
He filled that post with distinction. When, in 1984,
the Parliament of Victoria established a Law Reform Commission
for the State, it was natural that Professor Waller should
be invited, as he was, to chair the Commission. It
contained lawyers of considerable distinction, including
Justice Gobbo, future judges Frank Vincent QC and Anthony
Smith, Jocelynne Scutt, Mr Leigh Masel and other distinguished
members.
The Attorney-General of the day, Mr Jim Kennan, said
that he was considering giving the new Commission a standing
reference on the impact of science on the law. This
indication was a tribute to the special reputation which
Professor Waller had already earned, as Law Reform Commissioner,
by his participation in a Committee established by the Victorian
Government in April 1982, known formally as the In Vitro
Fertilisation Committee and informally as the Waller Committee.
It happened that the leading research in Australia
on in vitro fertilisation (IVF) was taking place in Victoria.
Indeed, it was occurring at Monash University under the
leadership of two academics of high distinction, Professor
Carl Wood and Dr Alan Trounson. There were calls for
a moratorium on the use of donor sperm and eggs in Victoria's
IVF programmes. The sensitive task of designing the
law that should govern this new technique was entrusted
to Professor Waller and his colleagues.
Acting with remarkable speed, the Waller Committee, within
six months, released a summary of its views on the use of
donor gametes. Later, the Government lifted its moratorium
on the use of donor sperm and eggs.
Such was the confidence in the recommendations of the Committee
that the Attorney-General told hospitals and others, involved
in IVF techniques, to follow the Waller proposals pending
the adoption of legislation which, it was expected would
become the model for the entire nation by endorsement of
the Standing Committee of Federal and State Attorneys-General.
Predicably enough, the recommendations of the Waller
Committee attracted praise
and criticism.
Professor Waller had entered a field of strong emotions,
deeply held beliefs and sharp differences. The field
of bioethics demanded leadership of rare delicacy that would
seek out and take into account, so far as possible, the
points of view of all sections of the community. Professor
Waller was to discover (as many have done since) that reconciling
the irreconcilable opinions on such topics is difficult
and often impossible.
In Ecuador, the International Bioethics Committee
of UNESCO rediscovered this lesson in November 2000.
Recent scientific research suggests that the peculiar utility
of the earliest cells of human life are to be found in the
human embryo, often superfluous to IVF use. Such cells,
known as "stem cells" are pluripotent, and thus,
it is hoped, prone to adaptation to take over the task of
damaged or diseased cells that have deteriorated or been
destroyed. The potential of this discovery for the
treatment of diseased heart muscles of those who have suffered
myocardial infarction is thought to be significant.
The potential for the use of such stem cells in the treatment
of Parkinson's Disease and diabetes, as well as a host of
other conditions, is under current scientific investigation.
Yet some religions teach that the embryonic cells represent
a human life in potential. If this is so, should the
law forbid such experiments out of respect for human life?
Does the earliest human embryonic cell warrant legal protection?
Studies of religious doctrine on such topics shows
a great disparity of opinion. Whereas Roman Catholic
and Orthodox branches of the Christian religion generally
adhere to the notion that human life begins at the moment
of conception, Jewish Biblical and Talmmudic law is commonly
taken to consider that human status is only acquired progressively
during foetal development and not at fertilisation of the
ovum by sperm. Genetic materials outside the uterus
have no legal status in Jewish law, for they are not even
part of a human being until implanted in the womb.
Even then, during the first forty days, their status is
not that of a formed human being.
Islamic teaching reflects a similar view that the
embryonic journey to personhood is a developmental process.
Ensoulment, that demands religious and legal protection,
does not take place until after three periods of forty days,
ie at 120 days or at the turn of the first trimester.
Still other religious views pick different times on the
journey of embryonic cells, including the moment when the
"primitive streak" first appears, in the earliest
outline of the spinal column, 14 or 15 days after the original
moment of conception.
Some humanists take a view that extra uterine cells are
available without limitation for experimentation and use -
being no more than microscopic bodily fluids and part of
nature's profligate creation of life. They are thus
available to science for the reduction of human pain
and premature death.
To say the least, finding a path through these differing
views of belief and non-belief is a mighty challenge for
morality and for law in the future.
By his work in public committees, Louis Waller contributed,
in highly practical ways, to innovative and humane legislation
which, for a time, led the world and has become a model
for many other jurisdictions.
He wrote with diligence and patience for specialist bodies
and to promote lay understanding of the issues at stake.
His work in this area attracted great interest and much
commentary within the legal profession
and beyond. In a way that he would certainly not have
anticipated at the beginning of his life's journey, Louis
Waller became a most respected leader in an innovative and
most difficult area of legal discourse.
He never lost his interest in other topics of legal
concern. The quandaries of criminal law frequently
attracted his enquiring mind.
But so did other issues of public law relevant to the maintenance
of the rule of law in a democratic and rights-respecting
society.
Louis Waller writes as he lectured. Words are
not wasted. His skills of communication are signalled
by a deft pen that can express an arresting thought in economic
language that demands that the reader read on. Take,
for example, the opening of an essay describing the law
and in vitro fertilisation:
"What has Lewis Carroll
called 'the love-gift of a fairytale' in common with Article
16 of the Universal Declaration on Human Rights?
Both, I suggest, refer to an ideal and a value we still
cherish in our society. Fairytales, properly so
called, end in the golden haze where hero and heroine
'live happy ever after'. Those who read or hear
them conjure up from that irreplaceable expression an
idyllic prospect of wedded bliss and family life.
The Universal Declaration employs language apparently
more precise ... [but] I suggest that what is really embodied
therein is an ideal and a prohibition".
Or take this essay on victims of crime:
"It is a mark of
this age to mark the ages. Generations, decades,
and even smaller periods of time are readily labelled.
There is a temptation to follow the fashion and describe
our age as the age of the victims of crime ..."
Or consider this opening to an essay on another sensitive
subject:
"My subject is abortion
and the law: the law in the books, and the law in
action. It is abortion de lege lata and abortion
de lege ferenda - the law today, as laid down,
and what tomorrow may bring. ... A study of the
law relating to abortion will remind us of the well known
antiphony in the Interment Service in the Book of Common
Prayer:
In
the midst of life we are in death'
A contemporary graffito
employed the same thought: 'Life is a terminal disease -
sexually transmitted'".
The boy from Siedlce in Poland is the master of the
English language. He deploys it with graphic skill.
And that skill extends from the lecture hall to the printed
page. We are the beneficiaries.
Louis Waller, who has proudly born the name of the
Sir Leo Cussen professor, after one of the greatest of Australia's
judges, is no fullstop. Nor is he a semicolon.
He is a questionmark. An exclamation mark. A
couple of brackets. And many books and pages yet to
be filled.
He continues to serve as Chairman of the Infertility
Treatment Authority of Victoria, a post he has held since
1995. He has also, since 1997, been Chairman of the
Appeals Committee of the Royal Australasian College of Surgeons.
Lately, he has assumed the important role of Chairman of
the Advisory Committee of the Australian Centre for Jewish
Civilisation within Monash University. This body will
promote an understanding in Australia of this country's
huge debt to its Jewish citizens.
He is an example of the best of legal scholarship
and teaching in Australia. As a Justice of the High
Court, as a fellow citizen, and as a lawyer, I do him honour.
And I also honour his wife and life's companion, Wendy Waller.
Important work lies ahead - for the challenges of law
and the puzzles of biotechnology and the eager faces of
another generation of expectant law students, thirst for
his leadership. I have no doubt that he will respond.
I feel a sure conviction that, whenever he is needed, like
Horst and Elisabeth, he will be there.
