In Conversation with Felicity Gerry QC

Professor Felicity Gerry, QC has dedicated much of her life to advocating for vulnerable individuals in both Australian and international courts amidst sensitive topics such as genocide, terrorism and modern slavery.

Felicity is an international QC, at Carmelite Chambers, London and Crockett Chambers, Melbourne, defending in serious and complex criminal trials and appeals. She’s also Professor of Legal Practice at Deakin University where she lectures on topics including modern slavery, terrorism and war crimes.

Felicity writes for LexisNexis on the Sex Work and Children chapter of Bourke’s Criminal Law.

Here, she chats with LexisNexis about human rights, the Rule of Law concept, her brilliant career, and life as a barrister in the middle of Victoria’s COVID-19 lockdown. We discover what and who inspires her to action and the challenges of staying true to yourself in a male-dominated profession.

Q. What drives your passion to progress human rights in Australia?

A. The easy answer is there is no Bill of Rights in Australia. Your passion is to argue for a national Bill of Rights but there's really only so much you can do. One person taking on the world sometimes gets a bit exhausting.

But I tend to be driven by those dangers of injustice which can arise from errors of law, from unfairness, from discrimination and prejudice.

Those concepts are fundamental freedoms which are intrinsic to human rights. They ought to be intrinsic to the whole of the law if we're recognising the importance of treating people with equality and dignity and respect.

I hate it when I see areas of law go wrong and people suffering injustice, particularly when it's influenced by policy and politics.

Q. What comes to mind when you think about the rule of law concept? How does that impact your work?

A. Last year I was involved in a submission to the High Court of Australia on implying the rule of law into the Australian constitution. That’s a little footnote in history because of course that didn't happen.

Because I tend to bring cases that are quite challenging, I commonly think about the rule of law.  I particularly like this quote from Justice Brennan:

“The rule of law is a system which is appropriate to serve the people of a society, it provides a stable order, it is free from the vagaries of personal whim or influence. Power is controlled not by the dictates of powerful people but by ‘a subtle and elaborate system’. Western societies boast of the rule of law but traditional societies may also be governed by the rule of law although colonization and the impact of western civilisation have reduced the number of traditional societies and have replaced or at least modified their legal systems. Legal systems necessarily vary from place to place, from people to people, for each system must respond to local culture and conditions. But whatever be the character of a legal system, the rule of law is the underpinning of peace, order and freedom.”

I think I agree with Justice Brennan that you have to recognise the society that you live in, that it's made up of diverse peoples, that the law is a subtle and elaborate system, but the underpinning is peace, order and freedom.

Personally, I strive to research and understand the underpinnings of the common law legal system in which I work. This sometimes requires research over 500 years of law. In at least three significant cases I have uncovered sound legal arguments for modern legal problems all of which traverse issues of freedom – perhaps allowing me the title of the Queen of Ancient remedies!

Q. Who or what has influenced you the most – while growing up and currently?

A. [I’m talking to you] in the week that Ruth Bader Ginsburg has died so I don’t think I can answer your question without mentioning her. She was a big influence and I knew about her when I was at school long before I wanted to be a lawyer. She suffered discrimination but still made her mark on the development of law – I don’t think just in the United States but across the world really to look at the sorts of decisions she was involved in as an advocate and later as a judge.  She's phenomenally inspiring for women lawyers.

Then of course when I became a barrister… there were very few women leading barristers and very few women ahead of me.  So I have to say I was most influenced by two male Queen's Counsel in England when I was a junior barrister.  But what's interesting… is what was it about them that influenced and inspired me. When I think about it they were both men from backgrounds that were not privileged.

One of them… he was an enormous influence on me because he was so noisy and I'm noisy.  His name was James Hunt.  I asked him… “How am I going to do in this profession?  How do you cope with that?”  He said, “No great circus ever crept into town”, which I thought was a wonderful expression. I think if he hadn't said that to me, I might not have become as noisy. Now in my chambers in Melbourne I've got circus pictures and circus ornaments and things in my room that remind me of the circus and some of my juniors come and visit me in what they call the circus.

The other one was a chap called Stephen Coward QC. Most people know him because he defended the murders of the children in Soham in Norfolk in England which was a very shocking case. He defended the lead defendant Ian Huntley. He also appears in numerous cases relating to murder and manslaughter and complicity in murder or manslaughter and all of his submissions were correct but ignored. The law took a wrong turn for some 30 years in England and Wales, which was corrected in a case that I was involved in called R v Jogee.  Although he wasn’t from a privileged background, he was a brilliant lawyer.  I do think he was an enormous influence on me, certainly in more recent years.

Finally, I can't answer this question without mentioning Frances Oldham, Queen's Counsel, in England and Wales, who was my former female Head of Chambers, who was and is still my greatest supporter, even in Australia. I'm still in touch with her.

Q. What has been the greatest struggle for you?

A. My decision to keep my Essex accent [is a struggle] because I feel that that has meant that I've had to work twice as hard to be heard. Less so in Australia. People sort of like my accent here, but it has been very difficult to keep going sometimes.

I've got some quite decent heritage in my family, but people judge you on your accent and your appearance and I currently have an Essex accent and purple hair. I quite like that challenge to everybody, as to what a barrister really looks like, but I think that was the one that's made it hardest for me. It probably would have been easier for me to fake an upper-class cut-glass accent. But I didn't want to be fake, I'd rather be me.

Q. What have been the main challenges during the past few months while in lockdown  and how have you addressed them?

A. COVID-19 has come with significant lock down in Melbourne for me, six months effectively with very little respite so you get lockdown fatigue. I'm very productive but as a result there's a huge email deluge. Every conversation is by email which makes for a very hefty inbox every day.

I've done a high level of pro bono work in lockdown, particularly because courts aren't sitting. Obviously, I help people wherever I can. It has given me an opportunity to do some projects that are very worthy that I like to contribute to, but it is a different way of working.

I've had to find ways to cope with it – generally playing scrabble, online scrabble and online Pilates at the moment so I've worked just as hard if not harder than usual.

I've also had my children at home which has been a great pleasure having us all together, but we've had to do 18th birthday parties, 21st birthday parties and tackle Year 12 which has been really hard for my daughter. We’ve just had to make the best of it.

I'm missing all the interaction with friends and all my pleasures that I take in collecting, interior design and antiques and things like that.  I'm missing my normal life so I shall be glad to get back to that.

Q. What will you be working on in 2021?

A. I've been in Australia for eight years now so I'm working on international law, projects and cases around genocide, international torture, developing a challenge to international illegal logging and obviously contributing to the law that applies particularly to trafficked women and children in Syrian camps – who I just genuinely think if they're citizens they ought to be repatriated and legal processes should happen in the jurisdiction that they're from. I'm really interested in driving those types of cases and projects that make international law work in a domestic setting.

I generally do cases when the courts are up and running on terrorism, homicide, sexual offending – so whatever the briefs bring as I go along.

Then quietly over the last five years I've actually been doing my PhD on forced criminality and the non-punishment of trafficked persons who commit crime. Most people will know about that because I was involved in the case of Mary Jane Veloso who was on death row in Indonesia for drug trafficking and raised her position as a victim of human trafficking. That interaction between crime and non-punishment of trafficked persons I think is really interesting. It's almost defending every woman on the planet so I'm hoping to get that over the line in 2021.

I've got quite a lot to do really and I'll always be busy. ;I tend to make work for myself but those sorts of topics I think are fascinating. I'm interested in them as well as hoping that they are the sorts of areas where we can make changes in the way that we do things.

Whether it's the application of current law or the generation of new systems to deal with modern situations, I hope to contribute to all of those areas as well as my day-to-day practice as a barrister - and the teaching that I do obviously. I love the teaching of the students and the topics that I get to teach are really interesting. So, carrying on with what I do normally is obviously going to happen in 2021 – but I hope more face-to-face than online.

In this podcast, Felicity Gerry talks about her passion for human rights, the Rule of Law concept, her brilliant career, and life as a barrister in the middle of Victoria’s COVID-19 lockdown. We discover what and who inspires her to action, perfecting the Zoom wave and the challenges of staying true to yourself, even with an Essex accent and purple hair.

Listen to the full interview with Professor Felicity Gerry QC