This profile first appeared in the Herald on January 10, 2009
Sandy Hollow is so small a town it rarely has managed to field a cricket team. Stephen Gageler recalls his one childhood year the required 12 boys were mustered.
"To give you an example of my sporting prowess, I think I was 12th man in this cricket team. I once got 'man of the match' for stopping the ball with my body."
That he tells this story speaks volumes about Gageler, the skinny, sickly kid from the Upper Hunter Valley who would rise to become one of Australia's eminent barristers and, since September, the Commonwealth Solicitor-General.
At 50, Gageler, the son and grandson of sawmillers, is the Australian Government's second law officer, after the Attorney-General. He is the Government's legal adviser and represents it in cases of significant litigation in Australian and international courts. By all accounts, the state school-educated Gageler rose to this position despite - or because of - his extraordinary modesty.
"He has always been extremely modest," says Sir Anthony Mason, the former chief justice of the High Court, where Gageler served as his associate at 23. Australia's top judge knew instantly he had recruited "an outstanding legal mind".
Outstanding, and yet, "he was never one to stand on ceremony", says Paul Daley, Gageler's law clerk for 18 years while he was at the bar in Sydney. Staff "idolised" him. "He was so sought after that he ended up with one of the best practices in Australia, but he'd go and queue up to get his own coffee. He'd never ask anyone else to do it."
Stephen Gageler, SC, was indeed sought after. His client list included: Betfair (he demonstrated to a full bench of the High Court the finer points of placing an online bet on a horse or AFL team); the Humane Society (fighting the Japanese whale hunt); the ACT Government (advising that the Howard government's proposed anti-terrorism detention powers were unconstitutional); and John Howard (telling the Australian Electoral Commission that the then prime minister had no legal obligation to declare as a pecuniary interest a function he hosted at Kirribilli House).
"No political allegiances that I know of," David Jackson, QC, a fellow constitutional law expert, says. "He's straight up and down, which judges admire."
Jackson believes Gageler's success helps to dispel an old myth. "Often people say the bar is a place for silvertails. I think he helps to challenge this misconception. It is a surprisingly egalitarian place, where people are chosen on merit. It doesn't matter where people went to school."
Stephen Gageler went to school at Giants Creek Primary, a one-teacher shack about three kilometres from Sandy Hollow, population 150. They would bring in a second teacher if the school reached a "trigger point of 20 or 30 students", which wasn't so often. Gageler went on to Muswellbrook High, where he says he received a "superb education".
The Solicitor-General greets the Herald on the 17th floor of the Law Courts Building in Sydney's Queen Square, where he has an office next door to the Attorney-General, Robert McClelland. Gageler works here three days most weeks. On the other two, more if needs be, he commutes to Canberra.
Here we will discuss Gageler's passion for taekwando, in which he is a black belt. A photo opportunity, perhaps? It would give our page a lift. The Solicitor-General agrees; yes it would. But he has a keen sense of decorum. The answer is no.
We will also discuss his Christianity, his family and his opinions - or the few that he is now free to air - on the constitution, on judicial activism and on the role of judges. For one thing, Gageler insists, judges do make law, not merely apply it. And, frankly, he finds it a little "embarrassing" that we are still having this debate in the 21st century. But first, a detour to Sandy Hollow.
Gageler, his two brothers and a sister were raised on a four-hectare property that contained a sawmill and two houses, one for their family and one for their grandparents. The business, C. Gageler and Son, was his grandfather, Clive, and his father, John.
"I had a few odd jobs around the sawmill," Gageler recalls. "Sharpening tomato stakes. I used to bag sawdust for the local butchers."
At 12, he worked at the nearby Richmond Grove vineyard. "There isn't much I haven't done with a grape: planting, pruning, weeding." He and his brother would collect rocks from the ploughed rows between the grape vines. "It's the hardest job I've ever had," Gageler says.
"My father, I suppose, was a small businessman, and my mother was a hairdresser. They were very hard-working people. They put a very high value on education. Honest, hard-working people and, yes, I'm the product of that sort of background."
The Gagelers were Anglican, but "not strongly … We'd go to church once, once a quarter, in a little slab-hut church."
At 15 or 16, for reasons he cannot recall, he decided he might want to be a lawyer. "My only contact with lawyers was one visit from the family solicitor." Certainly, he never imagined becoming the Solicitor-General. "I don't think I would have had any concept of what it was. Indeed, my grandparents had no concept of what university was."
Master Gageler thought he might prefer to be a barrister although, again, he had no idea what a barrister did. Fortuitously, a barrister bought the property across the road from Giants Creek Primary.
"It turned out it was Bryan Beaumont, who became a distinguished judge of the Federal Court. I went to see him at the farmhouse and he was very gracious. A pimple-faced 17-year-old kid, who had no idea about the world, turned up and Bryan invited me to come and sit with him in his chambers in Sydney some time."
Gageler did. Beaumont advised he get a law degree, get a few years' experience, get a master's degree, then turn up at the bar. "I remember ringing him about 10 years later and saying, 'I've done all that. Here I am.' "
AT THE Australian National University, Gageler found his life-long loves: the law, economics and Carla, who would become his wife. He studied economics and law and his stellar performance would help open doors, most notably Mason's.
Mason, he says, was "hugely important … I was greatly influenced by him, greatly inspired by him. It was a great privilege."
The Mason court was widely seen as an era of judicial activism, a time when judges were concerned with human rights and freedoms, and a period when they rejected strict legalism. It included the Franklin Dam case and landmark judgments such as the Mabo native title ruling and Australian Capital Television versus the Commonwealth, in which the High Court established an implied right to freedom of political communication, although freedom of speech is not spelt out in the constitution. But Mason detests the phrase "judicial activism".
"I regard that as a term of abuse," he told the Herald. Gageler agrees: "It's terminology that I intensely dislike." Rather, he has described the Mason court as a "romantic" period, by which he means "it was a time of great creativity and development in the law".
"It's nonsense to say a judge doesn't make law. Absolute nonsense," Gageler says. "And I find it embarrassing to be having a national debate on that subject in Australia in 2008 given that I thought this had been settled 70 or 80 years ago."
He argues common law, by its very nature, must evolve as civil society evolves, and so must be modified by the decisions of judges. And statute law, though made by parliaments, "can never be entirely prescriptive" and requires the interpretation of judges as specific cases arise.
"The question is how they should make law, and there I think I'm relatively conservative. That is, I think a cautious, incremental approach to the law is appropriate. Now, does that make me an 'activist' because I acknowledge that judges make the law? No, I think it makes me a realist. But being a realist does not mean that one automatically supports radical change. I don't."
Philip Ruddock, when immigration minister, said judges who wanted to involve themselves in the political process should "resign from the bench and stand for Parliament". And the former Nationals leader, Tim Fischer, attacked the High Court for judicial activism over Wik, another native title decision.
Michael Kirby, the outgoing High Court judge, called politicians and commentators who criticised activist judges "bully boys" and said the idea that judges only apply the law was a "noble lie".
Gageler concurs with Kirby on the last bit: "But he wasn't saying anything new. That's the oddity of this current debate. I mean, Lord Reid was saying it back in the 1970s in England. The Americans said it in the '30s. The Germans were saying it 30 or 40 years before that … So I'm certainly with Kirby acknowledging openly - and thinking it is a necessary acknowledgement - to say that judges make law."
So we've got that clear. Gageler is much more circumspect when it comes to expressing his view on matters of current controversy. What might be the big constitutional cases that he will be required to fight for the Commonwealth? The Murray Darling and water allocations? Climate change? He really shouldn't say. But as David Jackson, QC, puts it, when the big cases arise - and they do - it is the Solicitor-General who has to "carry the baby" for the Government.
GAGELER was 28 and already married to Carla, a teacher, when he completed his master's at Harvard. He was 30 when he went to the bar in Sydney, where he thrived in constitutional, administrative and commercial law for the next 20 years, until his appointment as Solicitor-General in September last year.
Like Jackson, he believes the bar is an "extreme meritocracy".
Gageler concedes, however, that he was probably naive. "I never saw myself as being in any way underprivileged. I never saw there being any barrier to me doing whatever I wanted to do. If I look back on it now, I could say yes there was, but I was never conscious of it at the time, and that was probably a blessing."
There were other blessings. The Gagelers live with their daughter, 20, and sons, 18 and 16, on Sydney's Lower North Shore. "My wife is a very committed Catholic. We attend mass as a family each week, even though I'm not Catholic. I'm Anglican, but not low church … It would be overstating it to think of me as a strong Christian. I try to uphold Christian values, but … I'm certainly not evangelical in my outlook."
He can blame Carla too for another conversion of sorts: taekwando.
"I did it at university for about 18 months and ended up getting a broken nose and a broken arm in pretty rapid succession, and I began to think, this is becoming ridiculous."
But his wife wanted their boys to take up the sport. In his early 40s, Gageler was collecting the boys from their classes, watching for the last 20 minutes or so, when he decided to give it another go.
Within three years he was a black belt. Again, the modesty: "But look, anyone can be a black belt. It's no big deal. If any one went along, with average flexibility, after three or four years they could be a black belt."
Last year he took his sons to South Korea for two weeks for a taekwando training camp. He spends two hours every Saturday and Sunday in training. He might go for a run during the week, but on those days he leaves home for work at 7am and rarely returns before 7.20pm. He will often continue working into the night. These hours are an improvement on his days at the bar.
Gageler admits he may not always have "got the balance right", but he has tried to compensate with good family holidays. Last year they skied in Japan.
His mentor, Mason, is still working at 83, on the Hong Kong Court of Final Appeal. He is a visiting fellow at ANU's law faculty. When asked for anecdotes about Stephen Gageler, he could offer none. Only praise, and lots of it.
"I have no tales of scandal," he said.
We weren't especially asking for scandal, but one suspects none could be offered because none exists.
The story Here comes the High Court judge ... with a black belt first appeared on The Sydney Morning Herald.