2025 Goldring Lecture University of Wollongong – Judge Andrew Haesler, District Court of NSW

GOLDRING LECTURE FINAL
Wallawaani
“Wallawaani”
Joanne Selfe of the judge’s Ngara Yura Program tells me that in Dharga/Dharawal “Wallawaani,” means “my grateful acknowledgment for your journey to this place.”
It’s not for me to welcome you to this place – that is for the People of this Country – thank you to Aunty Barb – but I say, “wallawaani” to express my gratitude to you all for coming.
Aunty Barb – I’m moved and honoured to have been welcomed by you and thank you for your welcome and you Wadi-Wadi – “yalunga”. On behalf of all those present for your generosity and dignity in reaching out the hand of friendship yet again. I hope we can do justice to your welcome in all our words today.
I acknowledge the traditional owners of the Country on which we meet, the Wadi Wadi and Dharawal. This place has, since forever, been looked over by the twin peaks – Djera (Keira) a teaching place, and Djembla (Kembla) a hunting place. Respect must be shown to the past, present and future custodians of those places, not simply spoken of. Respect can be shown by acknowledging the long history of the country on which we meet. And by acknowledging it was a land governed by laws; laws that nurtured country and people, well before the first colonists arrived and gave primacy to cutting the timber and digging the coal.
This place has held and nurtured my family for over 40 years.
I was asked to talk today about social justice and judging. I want to start with the three important reasons we have gathered here:
First, to honour Jack Goldring;
Second, to award the Jack Goldring Memorial Scholarship Fund; and,
Third, to acknowledge Sue Kirby and the many other generous sponsors of the fund and encourage others to donate to it.
Social justice is important to those three things. Jack ensured that social justice principles were baked into the Law School’s DNA. The scholarship in his name provides financial support for students with a demonstrated committed to social justice. And we always need more money.
As its founding Dean, Jack ensured that a key aim of the School of Law was a responsibility to contribute to the pursuit of social justice through policies, initiatives and programs designed to support equal opportunity into law for Indigenous students and or students from disadvantaged backgrounds.
Jack encouraged one such student, now a local Magistrate, to give up bricklaying and take up mature age entry. Magistrate Mark Douglass wrote this in the Judicial Officer’s Bulletin:
“My journey has been one less travelled, but it has taught me much about what it is to be a “successful” Aboriginal person in a country where any kind of recognised success for my people is a relatively recent achievement… Wollongong University was a place where I accessed many tools with which to make sense of the world I had occupied as a child and young man. I met many erudite people, academics like the late Jack Goldring … and others who encouraged me and whose knowledge stimulated me to think about social justice, to learn more and apply my own life experiences.”
This practical example powerfully illustrates the reason why social justice remains in, the Law School’s foundational principles.
But what has social justice got to do with judging? On one level – bugger all. No court has a social justice charter. Achieving social justice is not enshrined as a purpose of sentencing. But, as I hope to show today, striving for social justice is critical to being a good lawyer and you can’t be a good judge without being a good lawyer. Those principles shape our thinking, inform our values, and influence the way we interpret and apply the law. In short, they matter.
I also want to remind you of the times we lived in when the law school began. It was a period marked by significant social and political transformation, and the idea of embedding social justice into legal education was both bold and necessary.
I invite take you on short journey that explores how social justice principles, while having no explicit role in judging, do in fact help guide what judges do.
I want to raise the appallingly high rate of imprisonment of indigenous men and women in NSW, particularly of those on remand; people who have not been convicted of a crime.
I will take you to explicit statement of our highest court that forbids sentencing judges taking that appalling fact into account. And yet, I hope, to show you how a commitment to social justice can allow sentencing judges to from reason, and apply social justice, principles in a way that is entirely consistent with the rule of law.
“Stick to the knitting”
In a recent address to Western Australia’s Piddington Society, Chief Justice Stephen Gaegler told judges to “stick to the knitting” to “do law and only do law”. His Honour was not talking to a conservative think tank. He was talking to a group dedicated to ensuring all Australians had access to justice.
Commentators at the Australian newspaper interpreted this comment as “a veiled rebuke of a growing trend of activism from the bench,” implying this was left wing phenomenon. I do not believe this was his Honour’s intent.
The Chief Justice was talking about “orthodox legal method”. and “the maintenance of the rule of law”. He was not suggesting that law and lawyers had no role to play in shaping the fundamental issues our world – climate change and its twin; the growing disparity between those who have access to basic resources, food, shelter, security from violence; and those who do not.
The rule of law is not a narrow concept; it operates as a control against the abuse of the discretionary powers by an over-zealous executive. A Judge’s concern must focus on the legality not the merits of laws or executive action. Judge’s must maintain and enforce proper boundaries between the Parliament and the Executive and the courts.
Social justice, as a concept, is difficult to define with precision. It is often most visible in its absence. While no definition is ideologically neutral, few would oppose the idea that our legal community should work to reduce barriers to justice.
The Oxford Centre for the Study of Social Justice suggests that considering social justice in all human endeavours allows us to make practical judgments about both the ends—the common good—and the means to achieve it.
As a judge of the District Court, I am part of a hierarchy. I am subject to the direction—and sometimes the whims—of those higher up the judicial food chain. I am not supposed to make law. My role is to apply statute and precedent.
While social justice may play no formal role in my judicial decisions, it has shaped my career as a student (at UNSW), a solicitor (with Redfern Legal Centre, CAALAS, and Legal Aid NSW) and as barrister and Public Defender. I have tried to embed its principles, especially access to justice, into everything I do.
Jack Goldring and I come from the school of legal thought that rejects the notion that the rule of law is an abstract and objective concept. To the contrary – neither laws nor judges can be divorced from their social and historical context.
There was time a time, not so long ago, when UOW first began, when a “stick to the knitting” warning would have been directed at judges who dared to espouse social justice principles. In fact, the term social justice carried an inherent challenge to the status quo; a challenge to what I call the SPM the “stale pale male” legal profession.
Now to be fair, as a judge in 2025 I am open to the criticism that I have become a SPM. I accept that. In 1990 neither Jack nor I were SPMs.
The stale pale male judicial knitters of the time were not that happy with the new ways of teaching law embodied in UOW Law’s foundational principles. Most judges of the time knitted nothing fancy – plain stocking stitch jumpers were the norm. Occasionally, a Justice; Kirby might produce a cardigan in a nice pastel shade but that was it; nothing fancy. No indigenous or ethnic patterns.
Jack Goldring
It is 16 years since Jack died. He was only 66! Jack was my friend. I learned a lot from him. He talked me into running a course here in the early 90s. I was one of those who set the terms for the scholarship.
This is the 15th Goldring Memorial lecture. In the 5th Lecture, in October 2015, Professor Rosalind Croucher opened her remarks with sentiments I endorse:
“Each of us shares that deep sadness at the untimely loss to us all, and to Australia, of a great man … a ‘good man’.
Professor Croucher, like Senator Susan Ryan, who gave the second lecture, spoke of the “fine values” Jack lived by. Values that shaped his work, his teaching, and his vision for legal education. Jack believed in law as a tool for justice, not just order. He believed in the power of education to challenge inequality and empower change. His legacy lives on in the principles that continue to guide UOW Law, and in the lives of students and colleagues who were fortunate enough to learn from him.
In the third lecture, Michael Kirby also mentioned Jack, although the lecture was more about Justice Kirby.
Jack was acutely aware that there was a place in the universities for professional training as well as “purer” academic contemplation. He was well schooled by Professor Julius Stone. In a speech marking 10th Anniversary of UOW, Jack noted:
“Stone questioned the formalism that had dominated English legal scholarship (there was virtually no Australian legal scholarship) and his students became aware of the social dimensions of law and justice ….”.
Jack, as founding Dean, also took inspiration from Hal Wooten, the first Dean at UNSW. Jack also recognised the importance of the common law tradition and the rule of law. He knew the legal world was a practical place, that required skilled and knowledgeable workers conscious of their role as leaders in the community; “without knowledge of technical rules, no one can gain a proper understanding of the specific operations of the legal order, let alone change them”.
At the same time, Jack warned against discarding the formalist and positivist contributions to legal scholarship entirely. To do so, he argued, would be to “throw out the baby with the bathwater” – the title of one of his publications.
Change was necessary because professional socialisation by the established legal order created an inherent bias in the law that worked against the interest of the disadvantaged.
Jack was not one for shouting slogans. To effect political reform and redress unfairness in the law’s application and practice, required empirical evidence and then action based on that evidence.
Early in his varied academic career Jack began the first analyses of the make-up of the students then entering Australia’s law schools. He found the majority came from generally privileged backgrounds… bringing generally conservative opinions to their approaches as lawyers. His friends, UNSW Professors Chesterman and Weisbrot have asked the question whether recent innovations in teaching law have “changed the values of tomorrow’s lawyers from the patterns described by Goldring?” It is still worth asking that question.
With Jack’s guidance this Law School has taught law in its larger social context and prepared lawyers for practice. Jack saw no inconsistency in this. He was quite capable of talking and smoking his pipe at the same time.
A history lesson
Can I take you back to when UOW law was still a concept. Words like social justice were fighting words not the “polite meaningless” words they might appear today.
Now the 1980’s were different times. Three anecdotes to set the scene:
1. The president of the Law Society of NSW on visiting Redfern Legal Centre tried his best to be empathetic by blurting out, “it must be really hard working with people who lived below the property line.
2. I shared an office at Redfern Legal Centre with a young lawyer (who ended up on the High Court). Smoking was common in legal aid circles, so was poverty, she couldn’t afford cigarettes; so, a sign on her desk said, “thank you for smoking”.
3. The president of the Bar Association, Roddy Meagher, was reported as saying, “In the whole of Australia … there are only one or two legal academics of any value [but] multitudes … who scribble and prattle relentlessly about such non-subjects as criminology, bail, poverty, consumerism, computers and racism. These may be dismissed from calculation: they possess neither practical skills nor legal learning.”
Meagher’s comments are a gift that keeps on giving. But we need to be reminded of the atmosphere in the profession when UOW Laws’ foundational aims were drafted. As reported in the not particularly esteemed legal Journal Justinian in 1987, he said of “modern” judges:
“They will address any meeting, seminar, eisteddfod, jamboree or corroboree on land rights, the evils of fluoride, the dangers of the New Right, the assimilation of ethnics, penal reform… or any other subject of uplifting importance … Nowadays … The compassion industry is flourishing, and we are all fervently committed. We are infiltrated by bearded lesbians and invaded by the victims of discrimination.”
In 2004, prior to his High Court appointment, Dyson Heydon spoke at a dinner for the magazine Quadrant he said:
“Many modern judges think that they can not only right every social wrong but achieve some form of immortality in doing so. The common law is freely questioned and changed. Legislation is not uncommonly rewritten to conform to the judicial worldview. Judgments tend to cite all the efforts of their author’s colleagues, of other State courts, and American courts and Canadian courts and anything else that comes to hand. Often NO cases are followed, though ALL are referred to …”
I reject Meagher and Heydon’s thesis that the judges had become corrupted by what both called “judicial activism” with judges usurping their discretionary power to defeat the Rule of Law through the backdoor.
Now I don’t want in my implied (well actual) criticism to “throw the baby out with the bathwater”. Dyson Heydon was a committed adherent to the rule of law, and his judgments contain many erudite expositions of fundamental legal principle. We can criticise, even condemn a persons’ personal actions without cancelling them or refusing to debate their contribution to legal thinking.
After his appointed to the High Court, Justice Heydon, criticised his colleague Justice Gaudron for having the temerity to use the term “damaging public confidence” as a criterion of invalidity of legislation. When doing so His Honour asked; “does ‘public confidence’ have any more meaning than expressions like ‘social justice’ or ‘value to society’”.
My preference is to follow what another eminent Judge, John Basten KC, who wrote, “Even something as esoteric as statutory interpretation requires a judge to construe the language in the relevant statute or instrument … with an appreciation of social context and the previous law”.
An appreciation of social context involves an appreciation of social justice. It is something to be proud of and foster; but I accept that Judges are not meant to not apply social theories or their subjective opinions as “law”. That is not, we are told, good judging.
Sentencing
Sentencing is neither strictly logical nor rational; “… the only golden rule is that there is no golden rule”.
As far as possible, judges base their sentencing decisions on objectively established facts and the apparent logic of events. When a judge imposes a sentence on a fellow citizen, consistency in the identification and application of the relevant legal principles is required. Consistency requires application of orthodox principles. But the interplay of the considerations may be complex and on occasion even intricate. Where highly relevant considerations are incompatible the end result doesn’t require some kind of averaging out between them. There are circumstances in which one is entitled to be determinative.
Sentencing involves, “a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time.” The process, called “instinctive synthesis,” is not without its critics. Other more coherent and logically justifiable thesis have been put forward.
Judges don’t ignore victims of crime in this instinctive synthesis. Sometimes this synthesis can involve a terrible calculus. No more so than when a life is been taken, for example, after a homicide or fatal road accident.
No life can ever be equated with a period of imprisonment; no gaol term can return a loved one; and a life should never be measured simply by the punishment meted out to the offender. But apart from the right to make a Victim Impact Statement, that must be taken into account, victims play no other role in the sentencing process.
Indigenous overincarceration and the Bugmy case
An example of the injunction, “stick to the knitting,” is the need for sentences to involve “individualised justice”. This principle was spelt out explicitly in the 2013 High Court appeal by William Bugmy.
The defence in Mr Bugmy’s case attempted to get the High Court to take up the challenge of indigenous over incarceration. At present there are just under 13,000 people in NSW gaols. Thirty-two (32)% or 4,241 are Indigenous, and 44% of them are held on remand. This is, and must be, seen as an outrageous indictment of our justice system. As the Uluru Statement from the heart reminded us.
Courts have made some attempts to reduce Indigenous incarceration levels. We have trialled culturally specific court processes such as circle sentencing; and my court’s Waluma list, which involves indigenous elders in the sentencing process. But when it comes to measures which attempt to reduce levels of Indigenous imprisonment; proposals based simply on what those with power think might work more often than not operate to entrench power imbalances. Those power imbalances have been reinforced by legislation; such as harsher and harsher bail laws.
Bugmy
Bugmy, a Barkanji man, had suffered considerable social disadvantage and spent most of his adult life in gaol. He seriously injured a Broken Hill prison officer. His “lenient” sentence was increased by the NSW Court of Criminal Appeal. He took his case to the High Court.
Bugmy’s lawyers argued that when sentencing an Indigenous offender courts must take into account the high rate of incarceration of Indigenous Australians.
The High Court rejected this submission. The High Court told judges that until there is legislative change none of these truths can be taken into take into account by sentencing courts. They held there was no scope for sentencing judge to take into account this high rate of incarceration:
“Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice. An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence…The same sentencing principles are to be applied … in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.”
Rather than engage with the over incarceration tragedy, the High Court put considerable focus on a judge’s responsibility to take account the offender’s moral culpability for their crime. The majority judgment made the point that, as the effects of profound deprivation do not diminish over time, they are to be given full weight in the determination of the appropriate sentence in every case.
At the same time the Court affirmed that sentencing judges still had an obligation to take into account punishment and the theory of general deterrence; leaving to the sentencing judge the mitigatory relevance of diminished moral culpability.
What the High Court gives the High Court also permits be taken away.
The Court may well have said “profound deprivation was of undiminished relevance in sentencing” but sometimes a person’s background can have no impact at all.
An example comes from the appeal of Mark Mala Valera I argued in the NSW Court of Criminal Appeal. In 1998 Valera killed Mr Arkell our former Lord Mayor and another man, Mr O’Hearn. Valera received two life sentences. As a consequence, Valera is never to be released. This sentence was upheld on appeal despite evidence of Valera’s diminished moral culpability resulting from his youth, immaturity and history of traumas. His crimes were deemed so serious that no other lesser sentence was warranted. In fact, Justice Meagher (yes that Meagher) said; “one might be tempted to suggest that the circumstances of the present case call for a punishment a good deal more severe than mere life imprisonment.” The other judges of appeal (Bell and Wood) resisted the temptation to consider whether the case might have called for any more severe punishment than life.
Was the High Court in Bugmy court telling us social justice had no place in judging?
A closer analysis of what was said shows they were not. In Bugmy the Court, with their focus on moral culpability, made a subtle change to the rules about how judges go about their sentencing task.
Bugmy reaffirmed the law that everyone regardless of race or personal characteristics must receive a sentence proportionate to the harm done and the position of the offender while making it clear that some offenders, because of their youth, mental state or background of trauma, are entitled to a lesser sentence than others because of their reduced moral culpability.
As long ago as 1935, Chief Justice Jordan said that sentences had to accord with the “general moral sense of the community.” The “general moral sense of the community” could range from outrage to compassion, from vengeance to mercy. As a sentencing measure it is almost worthless. And it must be said proportionality or moral culpability, or social justice as sentencing measures are similarly protean or variable.
We do not live in an ideal world; but in an ideal world everyone involved in a sentencing hearing should be able to come away saying – “that decision was just.”
Unless compelled by legislation or settled principle, courts should not be an instrument of injustice. Sometime legislation or settled principle requires a sentencing judge harden their heart, but at one end of the spectrum still allows a judge to impose a merciful sentence.
Mercy or reasoned leniency
During the last century judges rationalised how what we now call “reduced moral culpability” by saying the community “values both justice and mercy”. A judge’s right “in special circumstances to avoid the rigidity of inexorable law” was said to be “the very essence of justice.”
Rather than speak of mercy I now prefer to use the term “reasoned leniency”.
Reasoned leniency provides a framework for a sentencing judge to explain why the harshness of the law can be moderated in an individual case and leniency afforded an offender. Reasoned leniency allows a judge to consider evidence that harsh punishment rarely acts to prevent crime and that in most case gaol impedes rather than encourages rehabilitation.
Reasoned leniency gives a sentencing judge a framework to explain why a lesser sentence is imposed by reference to evidence about such things as an offender’s history of trauma, mental or psychological impairment, youth and immaturity, disability or illness. And why it is not necessary to punish some offenders as harshly as might otherwise be the case. It avoids putting a moral or religious spin on what should be a reasoned discussion of the available evidence about the offender and the consequences of imprisonment.
Do social justice principles play any role in the administration of justice?
Can I return to my theme for the night, and pose question – do social justice principles play any role in the administration of justice by a court’s sentencing judgment?
In a strict sense the answer must be “no”.
Judges are obliged make principled decisions and follow and obey precedent – Judges are obliged to stick to the knitting. If I’m told by the High Court – Judge’s must not take into account the over incarceration of Indigenous Australians, I must not do so. If I’m told I must impose a mandatory minimum sentence; I must impose the mandatory penalty.
It is critically important that law be applied and enforced according to principle. A good judge is not an AI program – facts in – law out – dispute resolved. Judges and judging require, discretion and imagination. Nowhere is that more important when making sentencing judgments, a point I hope I’ve made clear.
While I disagree with Heydon on many things I agree that to ask a court to determine a case based on social justice principles, or their absence, would add another abstract consideration into the process. Although amorphous abstract terms can lead to incoherent reasoning. As indications, or guides, sentencing judges do use value laden terms to describe aspects of their reasoning process, but “social justice” is not one of them.
Conclusion
That said, it remains critically important that law be applied and enforced by good lawyers, and a good lawyer need to have a solid grounding in social justice principles.
We live in a world where the US Secretary of War (as he now styles himself) proudly boasted after the summary execution of sailors, said to be Venezuelan drug runners, that the US military would respond with “Maximum lethality not tepid legality. Violent effect not politically correct”.
“Tepid legality!”
When a senior official of a great power that, like ours is constitutionally committed to the rule of law, can make such a profoundly dangerous and ignorant comment all lawyers, all citizens of the world, must act to defend “tepid legality”.
Can I end by giving some advice; so typical of the SPM?
First: UOW Laws’ foundational principles remain relevant. Studying law at UOW should be inspiring. One reason we set up the scholarship was to encourage students to study and engage in activities consistent with those principles. And the evidence is in the many wonderful students who have received the award. Jack’s legacy lives on.
Second: Each era faces its own challenges. The poet WB Yeats in his cautionary poem, the Second Coming said, in 1914, the “darkness drops again”. History repeats. And history teaches us that in the main we fail to learn from history. If we don’t learn we will indeed end up with superior courts telling sentencing judges, as US Supreme Court Justice Alito was reported as saying recently – “a judge has a duty to enforce the law without mercy”.
Solutions to help avoid the darkness must be found. Robust laws; robust institutions of law and of learning can help but too often, to return to Yeats, “the best lack all conviction, while the worst are full of passionate intensity.”
The world in 2025 is different to that of 1914 or even the 1990s. The challenges this generation of lawyers and law graduates face are stark; the face of religious intolerance and racism has undergone subtle changes, but both still plague us. You are a less optimistic generation because you know more about what humans can do to each other and the planet. And what the science tells us about our climate either frightens the shit out of us or causes brains to freeze and deny the science.
As we deal with climate change, we will have to adapt our laws to deal with the loss of life and property that is to come. To maintain a civil society, we will require not only new laws but lawyers and judges to implement them. A frightened community often turns to the criminal law to provide some veneer of protection. And that protection often leads to harsher laws or old laws being enforced harshly.
There is a disturbing trend for parliaments to respond by enacting more and stricter laws; laws that overregulate and diminish our lives. Parliaments could pass laws directing judges to ignore social justice principles and to enforce the law without mercy. Regressive changes to the original and well considered Bail Act 2013 are an example. Recent, but now invalid, laws seeking to stifle public protest are another.
We can’t gaol our way to a solution, and we must not punish those who speak the truth to power. If new laws simply entrench the problem or are designed to preserve the property of the deniers, we are in trouble. The alternative is to continue to apply fundamental social justice principle as the basis for the legal decisions made by legislators and judges.
We can’t do that if we our lawyers did not learn and absorb social justice principles at law school, and we can’t do that if laws are enforced without mercy by judges who, when making their individual assessment of a case for sentence, have no concept of social justice to guide them.
To be a good judge you must be a good lawyer. The community correctly demands that judges be good lawyers, fair and impartial, that is, without partisanship or bias. Lawyers cannot become good judges without a solid grounding and understanding of social justice issues.
Jack Goldring was a very good lawyer and very good judge. His is a legacy that must live on.
“Yaloo”.
Thank you.