Pivotal Moments, Legal Insights, and the Future of Innovation | Justice Ian Jackman

Hello and welcome back to the Australian Law Student Podcast. I'm your host Oliver Hammond and in today's episode guest Nicholas Hodgkinson had the honour of speaking with Justice Ian Jackman of the Federal Court. His honour is a distinguished figure in Australian law, with his career being a testament to his profound legal acumen. In this episode, he discusses his journey from practising barrister to a Federal Court judge and shares his experiences with mentors and the evolving nature of the law. He offers invaluable advice for those pursuing a career in law, focusing on the skills and qualities necessary for success. This is definitely a discussion you won't want to miss. So without further ado, sit back, relax, and enjoy the podcast. Hello everyone and welcome to another episode of the Australian Law Student Podcast. I'm Nick Hodgkinson, one of the usual host Oliver's colleagues, and I'm taking this episode as a one time interviewer. The better news is that I'm joined by none other than the Honourable Justice Jackman of the Federal Court of Australia. Your Honour, thanks for agreeing to speak with us. How are you this? Morning. Very well. Thanks and my pleasure to be with you. Great. Thank you. So the first question, your Honour, you've been involved in numerous high profile cases both while serving on and before coming to the bench. Could you share any pivotal or formative experiences that have influenced your the course of your career? Well, I can't disclose confidences, and most of the interesting work in cases happens confidentially, but I can talk about my very good fortune in having some outstanding mentors, particularly in my early years at the bar. I was an associate to Bill Gummo when he was on the Federal Court before he went to the High Court and that was a tremendous year in which I learnt a great deal and Bill Gummo was very kind in introducing me to a lot of practitioners who in turn became very good mentors themselves. I then read with Brett Walker when he was a barrister of about 10 years standing. So bear in mind this is a long time ago. We're going back about 35 years and Brett was a very kind and generous mentor to me during that year of readership. And then I had the very great fortune of doing some work with Dyson Hayden when he was a silk, and that became a very important relationship in my career. And we did a lot of cases together, a lot of advice, work together, and became very good friends. And I remained very good friends with all three of those mentors who really did shape me and my approach to the law very profoundly. I went straight to the Bar after university. And so it was very important to me that I had some outstanding mentors to guide me in those early years. And no fledgling barrister could have been more fortunate than I was in having those three people as my mentors. Excellent. And and so following on from that, for students and young lawyers aspiring to become barristers, what key skills and attributes would you recommend they develop in order to excel at the bar or in the legal profession more generally? I used to advise my own readers that the there were three essentials, which I call the three as you have to be able, you have to be affable and you have to be available, and unless you've got all three, you're really not going to make it at the bar. You see a lot of young barristers who might have two of the three qualities but are lacking one of those critical ingredients and they tend to fall by the wayside. So in terms of ability, you need a very sound knowledge of the law, you need a retentive memory, you need immense powers of concentration because there's a great deal of reading and cases tend to be won and lost on matters of detail. You've got to be affable because people have to enjoy working with you and they're simply not going to brief you unless they enjoy working with you. So although the bar is a an individual profession, you need a strong instinct for being a team player. And so looking at university years as a preparation for the bar, it helps if you play a team sport or if you pursue cultural activities like plays or playing music in an orchestra or singing in a choir, which all involve teamwork because that develops your affability, which for many people comes naturally and for other people is something to be worked on. And then the third of the A's is that you have to be available and especially in the early years at the bar, you can't say if you're given an urgent matter on a Friday afternoon to appear the following Monday, that you'd rather prefer to spend the weekend with friends or family or watching a footy game. If you're serious about your career, then your professional obligations really have to come first. And that's a state of mind which might come uneasily to a lot of students because one of the great things about university is that you do have a lot of time. One of the shortcomings of the bar is that you're starved for time and you've got to prioritise and unless you put your professional obligations first or near to the first of your priorities, then you're not going to convey to the solicitors who want to brief you that you are available to do their work right, OK. This third question is is slightly different and perhaps more focused. Earlier in this year, in ASIC and Web 3 Ventures, Your Honour decided not to impose a penalty acknowledging a respondent company's reliance on legal advice. More broadly. How can Australia effectively encourage innovation in emerging sectors such as blockchain and cryptocurrency, while ensuring that businesses operate in compliance with the with the existing regulatory schemes? It's a very good question and it it is a particular aspect of a broader philosophical question on which I think a number of judges are divided. Innovators have to be confident that the law is going to respect their autonomy in circumstances where they seek legal advice and they act consistently with it. And innovation often means that the legal position isn't entirely clear. And innovators are in a difficult position. They are not lawyers themselves typically, and they've got to be able to act with confidence on the basis of legal advice which they are given even where the issues are problematic because the laws were drafted with different technology in mind. But it's a fundamental aspect of the rule of law, in my view, that people in the commercial community and in the community generally must be able to rely upon lawyers. One of the desiderator of the rule of law, of course, is that laws must be published. But that doesn't just mean that the laws have to be published in ever so many copies of statutes or textbooks or cases. It also means that people must have access to well qualified lawyers who know their way around the books and who are available without undue expense to give them advice. But the the Web 3 case which you're asking me about does raise a a very acute problem. And there are decisions, including by the full federal court to the effect that whether somebody has sought and obtained and followed legal advice is really not a relevant matter when it comes to the question of imposing a civil penalty on them. Now, it can't be a relevant matter when it comes to whether as an objective matter they've contravened the law. But I regard it as a highly significant matter when it comes to imposing a civil penalty. And I don't think that the civil penalty regime should be applied adversely to people who have acted responsibly in seeking advice, obtaining it and then subsequently following it. And I think it's important that innovators understand that the courts will respect their autonomy in that way. Sure. And now for the 4th question. As some of our listeners would be well aware, most law schools now prescribe mandatory legal theory units that explore the broader philosophical and societal context of the law. In your Honours experience, are these theoretical perspectives relevant to practical work at the bar and on the bench, or do they remain primarily academic in nature? That is a tricky question, and a great deal depends of course, on exactly what kind of legal theory 1 is studying. But I think legal theory does have a potential to make a practical impact on the way that judges certainly decide cases. We've just touched on an example, Web 3 ventures, which is very much informed by my view of the rule of law and the importance of availability of legal advice and the autonomy of people in the commercial community, which all stems from my own legal philosophy. A lot of jurisprudence does seem to have primarily a theoretical impact, but even then, I think it's important that people who are going to spend their lives practising law or later on deciding cases as judges should have some kind of a philosophy about what the point of it all is. And it rather saddens me to think that a lot of legal practitioners will spend 40 odd years of their lives without ever really reflecting on what the point of the legal system is. Why do we have a legal system? What is a legal system? What is law? What is a good legal system? That is, what are the criteria by which a legal system is in good shape? And I think developing a philosophy in relation to those matters makes 1's life as a lawyer rather richer and more fulfilling, even if one can't actually point to a practical consequence of having developed that philosophy. OK. I will just. Ask you now for standardized questions and we put these to all of our guests on the podcasts the 1st. Is could you? Share a subject which you found the most compelling during your time in law school, either undergraduate or postgraduate, and why that subject resonated with you. Well, it won't surprise you to hear, having dealt with the questions that we've already dealt with, that jurisprudence for me was the most exciting and interesting subject. Now I studied law at Oxford both as an undergraduate and as a postgraduate doing the BCL and jurisprudence at Oxford was taken very seriously and I was very fortunate in my choice of college, which was University College, that we had probably the three most influential legal philosophers of the 20th century in that college all at the same time. Herbert Hart had retired as the professor of jurisprudence, but he was given rooms in the College in his retirement. And he was in the college most days, came to a lot of college dinners. And he was very good company. And he could stop him in the quadrangle and ask him a question if you wanted, and he would happily stand there and and answer, even if it was freezing cold. Ronald Dworkin was the then professor of jurisprudence at Oxford. He had a number of other commitments outside Oxford, so he wasn't there all that often, but I met Ronald Dawkin on several occasions and he was a a dazzling and most inspiring professor in face to face discussions in this sort of seminar setting, especially postgraduate setting. And my personal tutor was John Finnis and I was very fortunate to have him as my jurisprudence tutor, not just because he was a fellow Australian, but because he has a very profound and distinctive philosophy of law. And to have the opportunity of a mental work out with someone of John Finniss's outstanding ability was one of the really great pleasures of Oxford as far as I was concerned. So, perhaps unusually, because not very many Australian students would pick jurisprudence as their most compelling or exciting subject, but for me, jurisprudence really stood head and shoulders above the others in that very special context in Oxford which I was fortunate to experience. OK. Is there a particular book or film that's had a significant impact on you and that you would recommend to law students or young lawyers? Well, staying with the theme of jurisprudence, Herbert Hart's The Concept of Law is an absolute must read. It's a relatively easy read because it's written in quite colloquial English. And for those like me who are fortunate to have known Herbert Hart, you can hear his voice in the in the pages when you're reading it. It's only a couple of 100 pages long and it is one of the great philosophical works of the 20th century. In my view. It really revolutionised jurisprudence. But it did say in a way which is very accessible and very enjoyable to read. And he has many interesting analogies like chess and cricket. And so if you find that the prose is getting a little too dense, you're never far away from an analogy which will liven up the subject matter. But I think it is an absolute must read. In fact, I'd recommend that students read the concept of law before they start studying law. But if they've missed the boat there, then it's never too late to read it. It's still in print and selling very well for the benefit of Herbert Hart's estate. But. And I'd also recommend John Finniss's Natural Law and Natural Rights, which is a more difficult book to read, but tremendously insightful, very tightly and densely written, but with many quite brilliant observations, which one is not likely to find in many other philosophical works. So they're the two books that I would put at the top of my list. I don't know that anybody's ever tried to buy the film rights to either book, but the books themselves are most rewarding and I recommend them strongly. Did you always aspire to serve as a judge, or were there other career paths you considered before your appointment to the bench, or perhaps even before going to law school? Before going to law school, I was rather attracted by the diplomatic corps and I thought that would be a very enjoyable way to spend my life. And then I thoroughly enjoyed the study of law and decided that I would become a barrister. And I loved the bar so much that I really put off the decision to come to the bench for many years. And although I did always have at the back of my mind an ambition of becoming a judge, I was quite happy to defer it because I enjoyed the cut and thrust of the bar a great deal. And one's never sure about making a change to one's lifestyle and whether it will leave one just as fulfilled and satisfied as the life that one is used to. But I'm pleasantly surprised by the fact that I have thoroughly enjoyed judicial work. It takes a little bit of time to get used to the rhythm of it because one doesn't have the highs and lows of the bar, but once one accustoms oneself to the very different rhythm and pace of the work, it is tremendously satisfying and so I'm very pleased that I took the step. You've mentioned that you had some important mentors earlier in your career during this conversation, but is there a piece of advice that you've received that stands out to you and that you'd like to share with our listeners? I think the piece of advice that I'd give everyone is that while one can certainly admire the work of other people and find some exemplars to follow, as I did, fundamentally you have to be true to yourself. And if you're true to yourself, then you'll be amazed at the results. So yes, follow the lead of outstanding mentors, but don't try to be somebody that you're not and accept your own strengths and limitations and work within those. And then I think you'll be seen to be a person of integrity, which is really fundamental to success in our profession. Excellent. Justice Jackman, thank you very much for joining us. My pleasure.