2018 Selden Society lecture series—the Hon Justice Keane AC on the Irish convict doctor—Dr O’Doherty

2018 Selden Society lecture series—the Hon Justice Keane AC on the Irish convict doctor—Dr O’Doherty


Welcome to the third in this year’s Selden
Society lecture series and the second annual Lord Atkin lecture. The subject of tonight’s
lecture is Dr Kevin O’Doherty, the Irish doctor who delivered the baby who was to become Lord
Atkin. Fortuitously, serendipitously all parties concerned in that venture had the foresight
for the birth to take place just across the road in Tank Street some 151 years ago. I
need not say much about our speaker tonight. He is well known to all of us. He was Solicitor
General for 13 years, a member of the Court of Appeal for five, Chief Justice of the federal
court for three and since 2013 a Justice of the High Court of Australia. That history
alone qualifies him to speak on almost anything but tonight he adds his Irish heritage to
make a truly formidable combination. Please welcome Justice Keane. [APPLAUSE] Thanks very much Glenn. Ladies and gentlemen
and colleagues. On 28 November 1867, Mrs Mary Atkin was delivered of a son in Tank Street
on North Quay, on the site as Glenn said where the Commonwealth Law Courts now stand. In
the register recording the child’s birth he is named “James Richard”, but he became famous
as Dick Atkin, more formally, Lord Atkin of Aberdovey. As this lecture is the second Atkin Oration,
it’s appropriate at the outset to say something about Lord Atkin to explain why we Queenslanders,
who go about our lives 12,000 miles away from where Lord Atkin made his name, why we find
his life a subject for celebration indeed celebration now on an annual basis. Dick Atkin travelled to Wales from Queensland
when he was only three years old. He was raised there by his mother and grandmother. He won
scholarships that enabled him to study at Oxford University. After graduating from Oxford,
he became a barrister. As a junior barrister, he lacked connections in the law and briefs
were slow to come. But, Atkin’s brilliance and capacity for hard work were eventually
recognised. He became a successful barrister and judge, indeed, he was arguably the
most influential English judge of the 20th Century. Young Dick Atkin had returned to Wales because
his younger brother, the third boy born to Mary, and his father was sickly, and it was
thought that he would have better prospects in the old country than in the new frontier
of Queensland. His father, Robert, had stayed on in Queensland. These were the kind of harsh
separations that were typical of attempts to make a life at the edges of the Empire
in the 19th Century. Robert Atkin died in 1872, and so young Dick
Atkin never saw his father again after his return to Wales. But the judgments that Dick
rendered as Lord Atkin of Aberdovey are suffused with the same liberal outlook that his parents
inculcated within him and a lasting adherence to the cause of the people as opposed to the
interests and privileges of the rich and powerful. The very existence of this lecture series
shows that Queensland’s lawyers are inordinately proud of Dick Atkin’s Queensland origins.
It might be thought that, given his very brief time as a Queensland resident, it is distinctly
unreasonable – even churlish of us – to claim Dick Atkin as one of our own, but we
Queenslanders acknowledge no equal when it comes to churlishness. In fairness though
the connection with Queensland was not all that exiguous. Indeed the Queensland connection
helped establish Atkin’s career at the Bar. By an extraordinary coincidence, the child
who would become Dick Atkin’s wife, Lucy Hemmant, was also born in Brisbane, within 12 days
and within 100 yards of where Dick had been born. Her father, William Hemmant, had been
very successful as a merchant in Queensland and returned to England where he built a grand
house, that he called “Bulimba”. Dick Atkin met Lizzie Hemmant while he was studying at
Oxford. It was at “Bulimba” that William Hemmant introduced his son-in-law to Norman Herbert
Smith, the eponymous founder of the firm now known as Herbert Smith Freehills. It was Smith
who sent Atkin his first briefs and put him on the road to success with a steady flow
of work. More broadly, our geographical and historical
links with Dick Atkin are but superficial aspects of the deeper, more important, cultural
and intellectual connections of the common law tradition. Lord Atkin’s judgments remain
an inspiration for all of us who share a commitment to the more humane aspects of our common law
inheritance, suffused as those judgments are with an intellectual adherence to the great
humanitarian ideal of fraternity. Lord Atkin’s famous judgment in Liversidge
v Anderson was a ringing blow for liberty and equality under the rule of law. And just
as importantly for those of us who speak the language Shakespeare spoke, for the integrity
of the English language itself. But it’s for his decision in Donoghue v
Stevenson, delivered in 1932, that Dick Atkin is most celebrated. This great decision, in
its proclamation of the neighbour principle, was a masterpiece of the synthesising technique
of the common law in the service of notions of compassion and fellow feeling which, though
imminent in the common law, have sometimes struggled to be heard. The post-modernist school of critical legal
studies advance the view that the common law has developed only by decisions which deliberately
break with the past. Of course they claim Atkin as a hero, in particular because of
his observation in another case that when “ghosts of the past stand in the path of justice
clanking their mediaeval chains the proper course for the judge is to pass through them
undeterred”. But, in truth, the genius of Dick Atkin, and
indeed the genius of the common law, is to reconcile the doing of justice today and legal
continuity with the justice done yesterday. Because if the decisions of today are no more
than the erasing of yesterday’s errors, like cases will not be decided alike, the idea
of equality before the law would be betrayed, and the common law would not be worth much.
It certainly would not be worth fighting for. To the extent that there was something new
in the decision in Donoghue v Stevenson, it was its articulation of the neighbour principle
that unified the cases in which an obligation to exercise reasonable care for others had
been held to exist. This principle has its inspiration in the deepest values of the Judeo-Christian
ethic that, in many ways, each of us is indeed our brother’s keeper. The articulation of
the neighbour principle is, it is fair to say, the most eloquent statement by the common
law, always so vigilant and successful in the protection of liberty and equality, of
its commitment to fraternity as well. Some Australian lawyers are uncomfortable
about our ongoing reliance upon English decisions to elucidate the common law as it develops
here, but even the most nationalist of them would not be so churlish as to deny the legitimacy
of ongoing reference to Donoghue v Stevenson as an important legal landmark, or to decline
to celebrate the continuity of the legal tradition of all the English speaking peoples. Within
that tradition, even though we may not be neighbours, we do remain brothers and sisters.
And that is certainly something worth celebrating. And with that introduction may I turn to the
subject of this evening’s lecture. The register recording Dick Atkin’s birth
records that his father’s name was Robert Travers Atkin, and that Robert’s birthplace
was County Cork in Ireland. The register also records that young Dick Atkin had been delivered
by a Dr O’Doherty, who happened to be one of the most eminent surgeons then in practice
in Queensland. Dr Kevin Izod O’Doherty had been born in Dublin in 1824. And so Robert
Atkin and Dr O’Doherty were both Irishmen, but, as we will see, they were very different
kinds of Irishmen. O’Doherty became a personal friend and political ally of Robert
Atkin in the Queensland Parliament where they both sat as liberals of the Gladstonian variety.
That they were friends was remarkable, to say the least, not only because Robert Atkin
was a Protestant and Dr O’Doherty a Catholic at a time when that mattered a lot, but also
because Dr O’Doherty was a convicted criminal. Nineteen years before he delivered young Dick
Atkin, Kevin O’Doherty had been convicted of “compassing to levy war
against Her Majesty, the Queen”. At the time of his conviction, Kevin O’Doherty was a medical
student about to sit for his final examinations. He had become involved in the Young Ireland
movement, and was arrested because of his co-editorship of the “Irish Tribune”. It was
for articles published in the “Irish Tribune” that he was charged and ultimately convicted. In passing sentence upon O’Doherty, Mr Justice
Crampton observed, “I have never read any publications more dangerous, more wicked,
more clearly designed to invite insurrection, rebellion and revolution than those publications
which emanated from your press and of which you have been ascertained by the verdict of
your jury to be the guilty publisher.” His Lordship went on to conclude, “Under these
circumstances, the Court feels called on to pronounce upon you the sentence that you be
transported for ten years.” As was the practice, his Lordship permitted
O’Doherty to say a few words. O’Doherty said that, “he was influenced by but one feeling,
and had but one object in view. He felt deeply for the suffering and privations endured by
his fellow countrymen and desired by every means consistent with a manly and honourable
resistance to put an end to those sufferings.” O’Doherty was convicted only at his third
trial. Twice before, juries of his fellow Dubliners had refused to convict him. O’Doherty
went on to say significantly, that on this third occasion, “out of twelve jurors permitted
to be sworn there was not one Roman Catholic”. That was history’s curse, the fundamental
division that made fellow-feeling between two kinds of Irishmen virtually impossible. O’Doherty was transported to Van Diemen’s
Land with other members of the Young Ireland movement. He was granted a Ticket of Leave
in 1850 when he began work as a pharmacist in Hobart. In May 1856 he received a pardon,
and resumed his medical studies and qualified as a Fellow of the Royal College of Surgeons
in Ireland in 1857. Until the work of Daniel O’Connell bore fruit,
Irish Catholics had suffered from legal disabilities, including their exclusion from parliamentary
office, the judiciary, and the executive government. Indeed, they were excluded from holding commissioned
rank in the armed forces of the United Kingdom, to which they supplied about a quarter of
the personnel who were required to do the anonymous dying on behalf of the Empire. And
even when Irish Catholics were not under direct legal disability, they were actively discriminated
against in all walks of life except the operation of public houses and horse racing, the legacy
of which remains with us today in Australia. Only after O’Connell’s successes did the legal
profession become open again to the Catholic Irish. Some Irish Catholics, whether out of genuine
admiration for English success in the arts of government or some more base motive, made
no bones about their admiration for the British. In the late 19th Century, Mr Justice William
Kenny, who tried the famous Childs murder case which attracted the attention of James
Joyce in Ulysses, was generally regarded as an impartial judge, but he was famously desperate
for acceptance among the Protestant Ascendancy. Timothy Healy, the leader of the Bar of Dublin
at the turn of the Century, said of Justice Kenny, “He would have given anything except
his immortal soul to be a Protestant.” Kevin O’Doherty was definitely not that sort of
Irishman. O’Doherty was convicted in November 1848.
The date itself indicates that his reference, at his sentence, to the sufferings of his
fellow countrymen was not to some general grievance about seven hundred years of foreign rule,
but was to the circumstance that in the years from 1845 a population of approximately eight
million people had been reduced to about five million through starvation and emigration
to avoid that fate. The British government at Westminster was
pleased to call this event “The Famine”. But as George Bernard Shaw later pointed out,
one cannot have a famine if there is actually plenty of food to eat, but the government
allows it all to be exported. At this time in Victorian Britain, inspired
by the likes of Lord Macaulay, people were congratulating themselves on the British genius
for government limited by law. That genius had been previously given a particularly rigid expression
in the checks and balances of the US Constitution which had been so designed to prevent bad
government that they were apt actually to prevent government altogether. The enthusiasm
for limited government may readily degenerate into “laissez-faire” and the exclusion of
compassion from government and the loss of the idea of fraternity. Experience, and not
only the experience of the distant past, shows that the ideal of fraternity struggles for
practical effect under the US Constitution. At the time when Kevin O’Doherty came to manhood,
the genius of the English speaking peoples for limited government was of no help to the
millions of Irish who starved during the famine. It can, I think, be said without any fear
of contradiction that not one of these wretched folk ever paused, in his or her dying moments,
to express their satisfaction that the government at Westminster, by which they were governed,
was a government limited by laws. It must be rare, if not indeed unique, in
human history that the laws and governance of a country have so catastrophically failed
to secure the peace and welfare of a people. It’s hardly surprising that many of these
people reacted in anger and despair against the very idea of government. In the United
States, Patrick Joseph Lee, an Irish immigrant arriving at the Boston Docks, spoke for these
people when and we know this from his grandson, as he looked around, he exclaimed, “If there’s
a government here, I’m agin it.” In this country, that burning rage against governmental authority
found expression in the myths surrounding the Eureka Stockade and Ned Kelly. In stark
contrast, Kevin O’Doherty chose to seek better government than to damn the very idea of government. It is hardly surprising that many of the Irish
came, like Kevin O’Doherty, to the view that only Home Rule could ensure that this sort
of cataclysm represented by the famine did not happen again. In pressing the cause of
Irish rule for Ireland which gave rise to the offence of which O’Doherty was convicted,
he was giving voice to the opinion that skill in the arts of government is of much less
importance than identification with the governed, and that identification with the governed
can only be guaranteed by ensuring that the government is of and by the people. Coming to Queensland. Dr O’Doherty married
Eva Kelly, who was famous in her own right as a poet, an Irish nationalist she was,
“Eva of the Nation”. He was encouraged to come to Queensland by Bishop O’Quinn, with
whom he had been associated at St Vincent’s Hospital in Dublin. O’Quinn enthused O’Doherty
with his vision for setting up large numbers of struggling Irish families in Queensland
where he hoped they would become successful farmers. Dr O’Doherty arrived in the Colony
about a year after O’Quinn. For four years, O’Doherty lived and practised medicine in
Ipswich, then regarded, according to The Queenslander, as “the intellectual and industrial capital
of the colony”. O’Doherty came to Brisbane in 1865 with the “flowing tide of progress”. He was elected to the Legislative Assembly
in 1867. By then he was one of Brisbane’s leading surgeons. He was an early president
of the Queensland Medical Society. He was an inspiring exemplar of the ethics of Hippocrates.
He gave generously of his time and talent, carrying out extensive work on an honorary
basis at Catholic hospitals in Brisbane. He was no narrow sectarian. He was one of
the founding trustees of the Brisbane Grammar School. When the school was opened in 1868
by Governor Blackall, O’Doherty made a speech in which he was critical of the failure of
the school to invite both the Catholic and Anglican Arch Bishops of Brisbane to the opening.
That contretemps didn’t stop him serving as a trustee and sending his sons to BGS. And so, while O’Doherty was in no way a Catholic
bigot, he was a staunch defender of the dignity of those who had for centuries been denied
that dignity as a matter of state policy. And he evidently thought that religion at
its best should be a unifying force within the community and a well-spring of generosity
and compassion. While he was in the Legislative Assembly,
Dr O’Doherty maintained a very busy private medical practice. Nevertheless, he obviously
gave great satisfaction to his constituents as their representative for the seat of North
Brisbane because he was not challenged during the period of the great struggle that he and
others in the Liberal interest conducted against the “Black Soil Squatters”. After that bitter
struggle subsided, when Samuel Griffith emerged as the dominant force in Queensland politics,
O’Doherty sat for twelve years in the Legislative Council. In addition, he actively campaigned
against the avowedly sectarian attempts such as those by a French priest, Fr Paul Tissot, to solicit
the votes of Catholics for a Catholic candidate for Parliament. I should, perhaps, explain here that when
one speaks of the squattocracy in Queensland in the mid-19th century, one is speaking of
a very different political grouping than the graziers and farmers who later came to be
responsible for producing the agricultural wealth of the State. This latter group tended
to be politically conservative, but they were decent honest people. At the time of separation from New South Wales,
the squattocracy who dominated Queensland’s politics were speculators who had strong associations
with shady moneyed interests in Sydney from whom the taint of the Rum Corps had not entirely
lifted. These “Black Soil” squatters, as they were known, were said by Professor Jenks to
have “laid claim to some enormous areas which they did not attempt to cultivate.” Sir Stephen
Roberts says that they “sat down and raided the properties of respectable settlers. They
may even have been drink-sellers with no live stock at all, the distinguishing feature of
the genus was dishonesty and locating themselves on ground to which they had no title.” An unlikely friendship. As to the possibility,
and indeed the necessity, of better government, responsible to the needs of the governed,
Robert Atkin was of a like mind with Dr O’Doherty. But of course as I’ve mentioned there was
that division that had to be bridged before these different kinds of Irishmen could work
together to build a better society than they had known in the old country. From his earliest
time in the colony, O’Doherty had taken a strong stand against the kind of sectarian
division that blighted his homeland. Speaking at a St Patrick’s Day Dinner in 1863, he said
of the religious strife in Ireland that “no blight more emasculating ever fell upon my
country.” This speech led to a letter to the editor of the Brisbane Courier which asserted
that O’Doherty had “proved by his own argument that the best use to put an Irishman to was
to expatriate him for his country’s good.” Robert Atkin was, as I have said, a Protestant
from County Cork. I should pause here to say that, ordinarily, this circumstance could
have been expected to make for a level of bitterness between Catholic and Protestant
that would have made the friendship between Atkin and O’Doherty impossible. Cork is, of
course, the southern-most of the Irish counties. Because of its strategic value by reason of
its proximity to France and Spain, the English in the time of Elizabeth I decided to plant
a colony in Cork, it was the only county outside Ulster where they did so in such a
comprehensive way. As a result, relations between Protestant planters and the dispossessed
Catholics was particularly fraught. They were to remain that way well into the 20th Century
when Cork was a particular hotbed of Republican sentiment. During the war of indpendence,
the Black and Tans burned Cork city. Michael Collins, the leader of the armed struggle
during the war of independence, was a Cork man, as were many other leaders of the rebellion.
We can be quite confident that Robert Atkin had been brought up within a most virulent
strain of sectarianism. As we will see, this blinkered background did not define him. Robert Atkin had met Mary Ruck, who was Welsh,
in Dublin. They were married in London in 1864. They came to Australia, partly for Robert’s
health and partly to seek their fortune. After some misadventures in business in Central
Queensland, Robert came to Brisbane where he worked as a journalist. The register recording
his son’s birth describes Robert’s occupation as “Editor”. In 1868 he was elected to the Queensland Legislative
Assembly as the member for Clermont. As I have said he stood against the Black Soil
squattocracy. And in this, he stood four-square with Kevin O’Doherty. In 1872, when a smallpox epidemic threatened
the Colony, O’Doherty introduced the first Public Health Act passed by the Queensland
Parliament. The Act established a Central Board of Health with authority over quarantine,
vaccination, drainage, sanitation, and food purity. He and the other medical men on the
Board campaigned, with little success it must be said, for the powers conferred on the colonial
government by the Act to be deployed to clean up Brisbane’s drains to prevent the recurrence
of infectious disease. Despite his initial lack of success, O’Doherty thus initiated
in the Parliament the first steps of progressive development of health care as a project of
the Queensland Parliament and the idea that the health of the citizenry was a fundamental
responsibility of government. That idea would, in the next century, see
Queensland become the first Australian State, and the first province in the British Empire,
to introduce a system of free public hospitals. Dr O’Doherty’s idea that the health of the
community is the responsibility of the Parliament continued to grow in Queensland with a special
zest. A completely free hospital service for in-patients and outpatients without the application
of any means test was introduced in Queensland in 1944. In this, Queensland was a leader.
While other States followed, with the assistance of the Chifley government, with the return
of the Menzies government in 1949 all the States except Queensland reinstituted public
ward charges to increase revenues. Queensland maintained its free hospital system. Both
under conservative and Labor party governments. The State retained its free hospital system
despite its enormous cost because the governments believed that politically it could not afford
to change the system. The legislature in which O’Doherty and Atkin
served passed laws for the building and operation of railways. In America, the railways essential
for the economic progress and prosperity were built on the initiative of wealthy individuals
like Vanderbilt and Jay Gould. In the Australian colonies, the very different economic circumstances
meant that these great works of nation-building could only be undertaken by governments, and
active governments at that. The Queensland legislature in which Atkin
and O’Doherty served was also active in promoting public education. When O’Doherty’s
advocacy of state aid for denominational schools was rejected he refused in protest to serve
on the Board of Education to which he had been appointed. And in 1873, he declined to
nominate again for Parliament. In the longer term, the popular issues for
which Robert Atkin and Kevin O’Doherty were advocates, would when harnessed to the strength
of organised labour in the early decades of the 20th century, establish a social democracy
that would be the marvel of the English-speaking world. And in 1922, Queensland became the
first province in the English-speaking world to abolish the death penalty. Dr O’Doherty also campaigned, without immediate
success, for the establishment of a University of Queensland which would from the
outset include a medical school. Robert Atkin, whose health had never been
robust, suffered severe injuries in a fall from a horse. It seems that he never properly
recovered. His ill-health forced him to resign from Parliament in March 1872 a little before
O’Doherty on the basis that he would be succeeded by the rising barrister Samuel Griffith.
Robert Atkin died two months later. He was thirty-two years old. Can I say something now about the sectarian
problem in the Australian colonies. It is probably fair to say that, in the mid-19th
Century, the divisions between convict and free-settler and Protestant and Catholic were
the two principal sources of social tension between the white colonists in Australia.
The friendship between O’Doherty and Atkin rose above these social and sectarian differences.
Their friendship, and the achievements that flowed from it, serve as an ongoing reminder
that social and cultural differences, that may seem eternal and unbridgeable, can be
bridged by education, good will and mutual respect. That it was possible to be a faithful member
of one’s Church and to respect those of a different faith, or indeed those of no faith
at all, was demonstrated by the very fact of their personal friendship as well as by
their public alliance. This was not an easy point to make at that time. Indeed, so far
as the sectarian divide was concerned, it was a real force for bad until after the Second
World War. Robert Atkin and Kevin O’Doherty co-founded
the avowedly anti-sectarian Hibernian Society of Queensland on 7 September 1871. When O’Doherty
stood down as President, he was succeeded by Robert Atkin. The assumption on which the
Society was founded was that decent people of good will could advance the common good
while at the same time remaining faithful to the faith of their fathers. Shortly after Robert Atkin’s death, the Hibernian
Society erected a public memorial to his life which still stands at Sandgate. The inscription
on the monument describes how Robert Atkin was distinguished in his journalism, and in
his work in the legislature, by “large and elevated views, remarkable powers of organisation,
and unswerving advocacy of the popular cause, his rare abilities were especially devoted
to the promotion of a patriotic union among his countrymen, irrespective of class or creed,
combined with a loyal allegiance to the land of their adoption.” It is difficult to imagine that these words
were written by anyone other than Kevin O’Doherty in honour of his friend. And one suspects
that O’Doherty’s unwillingness to continue in the colonial legislature until 1873 was,
at least in part, an emotional response to the death of his friend and political ally. If I might pause here for a word for our
sponsor to say that the preservation of the monument of Robert Atkin should be a matter
of public interest as a manifestation of our abiding regard for the values of inclusiveness
in our community. On the occasion of the founding of the Hibernian
Society, Dr O’Doherty stated that its first aim was to “destroy the most serious of all
barriers to a complete solidarity among his countrymen, religious prejudice and party
antipathy”. O’Doherty explained that the Society was open to Irishmen of all religions. He
expressed his agreement with the basis on which Queensland was to be governed and his
hope that a similar government would be granted to Ireland. “We are here” he said, “thank
God, completely independent of that discord among our countrymen at home. Here the British
Constitution is not an empty name.” Now it has to be said that he was overly optimistic
in stating that Queensland was completely free of sectarian discord. And although it
would be well into the next century before his optimism was truly justified, Queensland
did break down the sectarian barriers more quickly than some other States. When Murray
Gleeson was sworn in as Chief Justice of New South Wales in 1987, Gough Whitlam said to
him that “twenty years ago someone with your name couldn’t have been appointed to this
position.” It is significant that by 1967, 20 year earlier Queensland had already had
three Catholic Chief Justices, McCawley and the two Macrossan’s. Notwithstanding friendships and alliances
like those between Atkin and O’Doherty, O’Doherty’s people were, for a long time, a highly visible,
and frequently uncomfortable, minority in this country. The Catholic Irish encountered
difficulties in finding employment in business and the professions. Difficulties in obtaining
employment as solicitors in private firms led to the over-representation of the Irish
in the Crown Law Office and at the Bar. This over-representation at the Bar would reach
its ultimate expression in the late 1980s and 1990s when Anthony Mason, Gerard Brennan,
Bill Deane, Mary Gaudron, Michael McHugh and John Toohey all served together on the High
Court. My generation is the last to have experienced
the ugly reality of the sectarian divide between Catholics and Protestants. When I attended
St Columba’s Convent at Wilston in the late 1950s, we used to engage in taunts with the
children from the Wilston state school on the way to and from school. On occasions,
when mutual taunts did not seem to be enough, we actually threw stones at each other. In the 1960s, there were still law firms in
Queensland who employed only Catholics or only Protestants. But, almost as if by miracle,
around about the time I began my time as an articled clerk in 1974, the last vestiges
of this sectarianism had gone. They just disappeared. No one cared anymore. I suppose that these differences
simply couldn’t survive the comradeship of the Second World War and the general prosperity
that ensued. For more than a hundred and fifty years, however, the possibility of the peaceful
integration of the Catholic Irish into the mainstream of Australian society seemed to
be distinctly problematic. The process of integration took generations. And that’s
not surprising. The Irish were a difficult people to integrate. Over the medieval walls of the city of Galway
on the west coast of Ireland was a sign it read, “From the fury of the O’Flaherties,
Lord Protect Us.” We had O’Flaherties at my school. They were very wild. With the benefit
of hindsight, I can understand what the good burghers of Galway were worried about. Apart
from being very wild, the O’Flaherties were also tall and attractive to women. I resented
them on all these grounds. But once you got to know them, you realised that Wilston was
a better place for having them. The problems of Irish integration were much
greater than the eccentricities of particular families. The Catholic Irish in Australia,
a quarter of the population at the outbreak of the First World War were at best ambivalent
in their support for the Empire in that war. Under the leadership of Archbishop Daniel Mannix,
they were implacably opposed to the two referenda on conscription which the Commonwealth government
proposed to support it. The Irish were sullen participants in Empire Day celebrations, before
the second World War, if they participated at all. And they were often slow to stand
for “God Save The Queen” when that was our National Anthem. But after a few generations of awkwardness,
this once abject people thrived in Australia as they have thrived nowhere else. Today we
can look back and see that the contribution of the Irish to the public life of this country
is something worth celebrating. Some people in this room may remember their excitement
when John Kennedy became the first Irish-Catholic President of the United States in 1960. By
that time, Australia had had four Irish-Catholic Prime Ministers:
Scullin, Lyons, Curtin and Chifley. And in the United States, Kennedy remains unique
while, in Australia, we have added Keating to our tally. And so, in a socio-cultural
sense, O’Doherty’s people have been so conspicuously successful that they are now an entirely indistinguishable part of the Australian people. In the four generations since the passing
of Kevin O’Doherty, his people have become so successfully assimilated into the Australian
community that it was, for some decades, before the success of multiculturalism, commonplace
to describe Australia as an Anglo-Celtic country. I acknowledge that this description was also
a nod to our Scots and Welsh immigrants. And while we might not now describe our characteristic
cultural mix in this way, the fact remains that we are a better place for the migration
of these people. Just as we are a better place for each successive wave of immigrants who
have enriched our cultural life since the war. Dr O’Doherty’s later years. In 1885, Dr
O’Doherty returned to Ireland where for a time he served as MP for North Meath in the
House of Commons. I understand that it’s been said that in the Imperial Parliament he sat,
as the representative of “The Irish National Party of Australia”. He sat with Charles
Stuart Parnell and supported Gladstone’s bill for Home Rule. He returned to Australia briefly
to get his affairs in order. A banquet was organised in his honour in Brisbane, but it
was boycotted by the local establishment. The boycott is a salutary reminder that an
advocate for the cause of the people was not necessarily popular with the people who mattered.
The Brisbane Courier was strongly anti-Home Rule in its editorial policy, it exulted at the snub
administered to O’Doherty by the great and the good. And so, even at that early stage,
the Courier was astute to stake out its honoured place firmly on the wrong side of history. After the defeat of the Home Rule Bill in
Westminster, and Gladstone’s resignation as Prime Minister, O’Doherty returned to Australia
in 1889. He had been invited to run for a further term in the House of Commons, but
declined this honour because, it would seem, of his straitened financial circumstances. After returning to Australia, O’Doherty served
for a time as Secretary to the Board of Health, but he became blind. He eventually died, in
absolute penury, at Milton in July 1905. He was eighty years old. Kevin and Eva O’Doherty lived extraordinary
lives, full of endeavour and energy pitted against extraordinary adversity. And in the
end, their lives were concluded in personal tragedy, even more sad than the untimely death
of Robert Atkin. The O’Doherties had four sons and one daughter. Each of their sons
died, one by one, in the 1890s. There was no male grandchild to carry on the O’Doherty
name, but happily Kevin and Eva are survived today by two great-great-granddaughters and
their families who live in the United States. Eva O’Doherty lived until 1910. Her only surviving
child, a daughter, and her only grandson lived with her. Her death in 1910 meant that, at
least, she was spared the knowledge that this grandson would be killed fighting in the Australian
forces in France during the Great War. The lessons. It might now be said that the story of Australia’s
Irish is a story of a different time and of a people that no longer exist. And that would
be true, in that Irish Australians are no longer a visibly distinct social grouping.
That this is so speaks to Australia’s success as a melting pot, the world’s most successful
multi-cultural nation. But there is also no doubt that some of us in this room are who
we are because of the courage, the ambitions and the achievements of Kevin O’Doherty’s
people. The American historian, Henry Adams, himself
the son and grandson of men who had been President of the United States, writing at the beginning
of the 20th century, described politics as “the systematic organisation of hatred”. The
history of Queensland, and indeed Australia, from the late 19th century to the early 20th
century showed that Adams was unduly cynical about democratic politics. In the context
of the politics of the British Empire of the late 19th and early 20th century, no hatreds
had been as thoroughly organised as the sectarian divide between the Irish of the Orange and
those of the Green. British Imperial policy promoted the policies
of plantation and division since the 16th century. That policy was, as Conor Cruise
O’Brien said, “one of the worst things one gentle people has ever done to another”. To
this day the sectarian division of the Irish blights the lives of those who live in the
six counties. But even the most well organised of hatreds can be disrupted, and the example
of Robert Atkin and Kevin O’Doherty shows that the most powerful disruptive agent is
friendship, and, in a more abstract sense, fraternity. Or as Robert Atkin’s son Dick
would put it, “neighbourliness”. The contribution made by Robert Atkin’s kind
of Irishmen, the decent, thoughtful Protestants, who saw the oppression of the majority of
their countrymen in their own land as an injustice that had to be righted at home and not exported
abroad, has been somewhat overshadowed by the numbers and the noise of Kevin O’Doherty’s
Irish and the O’Flaherties. But the alliance of these decent men claimed this country for
ordinary people from the twin evils of the British Imperial policy of divide and rule,
and the grasping land jobbery of the Bunyip aristocracy from Sydney. Dr Samuel Johnson said that “the Irish are
an honest race, for they seldom speak well of one another.” It will be obvious that I
have enjoyed very much this evening’s opportunity to speak well of the Irish. But, in doing
so, I have also spoken honestly. Under the leadership of the O’Doherties and the Atkins,
both kinds of Irish embraced the practice of the value of fraternity that make us one
people dedicated to doing justice to each other within our nation. The truly revolutionary value of fraternity
has flourished in Australia as a powerful antidote to individualism which, in its coldest
version, sees society as nothing more than a chaos of social atoms, free and equal to
be sure, but bound only by prudent bargains made ever more anxious by the stresses of
living in a stressful environment. In only a couple of generations the alliance
of Protestant liberals like Atkin and the Catholic Irish like O’Doherty would, without
bloodshed, create governments of and by ordinary people that in turn promoted the
growth of a society that became the envy of the world. The parliamentary achievements of these early
Queenslanders are of abiding importance to us for two broad reasons. First, they show
that even the most virulent cultural divisions can be defeated at least in this most lucky
country. And secondly, those achievements are strong evidence to counter the fashionable
cynicism about politics and the democratic process. Disillusionment with the political process
among our younger people is a special concern, as I know from my own experience. Each year
the brilliant young lawyers who act as associates to the judges, almost without exception, express
their ambition to work in the field of human rights. This usually means working within
the judicial process to improve the lives of the less fortunate of our fellow citizens.
In this regard, none of my associates has ever expressed an ambition to enter parliament. Given the brutality of the political process,
the polarisation of views that forecloses reasonable debate and respectful disagreement,
and the eye-crossing banality of so much of what passes for political debate under the
pressure of the 24-hour news cycle, one can understand the attractions of arguing for
one’s client’s rights in the open, polite and reasonable atmosphere of a court where
decisions must be justified in public by comprehensive and coherent reasons. But the attractions
of openness, fairness and rationality offered by the judicial process can’t alter the
reality that the grant of the positive rights that make life worthwhile is necessarily within
the gift of parliaments. One cannot escape the truth that the positive
rights that are the concrete expression of the great human and political principle of
fraternity are possible only if taxpayers are willing to pay for them. Even the very
greatest judges, even a Lord Atkin, cannot hope to give full justice to the expression
of the value of fraternity in our public life. Judges can’t impose or spend the taxes that
raise the money to educate our children, to care for our sick and aged or the veterans
of our nation’s wars, or to build the infrastructure necessary to our prosperity, or to conserve
our environment. Within our constitutional tradition it is Parliament that provides the
process whereby that willingness is expressed. As E G Whitlam QC MP said, “If we are to
have economic equality of opportunity, which is the next stage in the advance of liberty,
we must have effective parliamentary government and, accordingly, dispense with fetters on
Parliament rather than contrive them.” In the end, cynicism about politics is an
expression of a lack of faith in our fellow citizens. It comes readily to those who have
no idea of history. If we know nothing of the heroes of the past, we can be forgiven
for believing that the mediocrity of the present is our destiny. Those familiar with Australian history, with
the story of the likes of Robert Atkin and Kevin O’Doherty, for example, know that cynicism
about the human capacity for fraternity and what our parliaments can achieve to give effect
to that ideal is an unjustifiable form of misanthropy that we do not need and cannot
afford. Thank you for your attention. [APPLAUSE] As many of you would have expected we’ve been
taken on a wonderful journey tonight from Ireland to Australia and back. Through the
famine, the predations of the squattocracy in Queensland and more favourably the work of
Atkin and O’Doherty in areas such as public education and health which remains a shining
moment in our early history. O’Doherty deserves to be much better known than he is and Justice
Keane has in his usual clear and close historical survey raised an awareness of him
which I hope continues to grow. Judge we have a cornucopia of gifts for you tonight through
some minor misunderstandings but I will just say of
generosity of spirit and I’m sure you’ll enjoy some of them. Would you please thank Justice
Keane again. [APPLAUSE] The next in the Selden series concerns Barwick
his place in the pantheon. It will be presented by the Honourable John Dowsett on the 25 of
October in this courtroom. Please join us for refreshments in the gallery. Good evening.

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