Ladies and gentlemen and Professor Lessig, we are very lucky to meet on this day in this wonderful building and to have had such a fantastic session this morning. I mean, I missed the first couple of speakers because I had to attend an Australia Day Council Breakfast in Sydney (which is one of those awful American traditions that seems to be spreading to our country) and then came down here, but I came in time to hear the tremendous talk given by Professor Zines and also by Professor Sterling and I think we were very fortunate to have heard their input.

I knew all of those people – I knew Sir John Spicer – I appeared before him as a young barrister quite often when he was the Chief Judge of the Commonwealth Industrial Court. He was a very fine and very temperate judge and he had some very angry judges who would sit with him. I attended his funeral in Toorak and he was a very fine and intelligent man. I knew Sir Nigel Bowen – he was my Chief Judge when I was appointed to the Federal Court of Australia and he was a considerable intellectual property lawyer. And I knew Bob Franki, just as Franki, who was a very courteous (and as John Gilchrist and I were saying) a very dignified person who if he gave his word, that was it. And I was very glad to hear a tribute paid to Lindsay Curtis who was truly one of the most fantastic officers of the Commonwealth that I ever worked with.

When I was appointed Chair of the Law Reform Commission back in 1975, Lindsay was the officer of the Commonwealth Attorney General’s Department who worked with me and he was truly a brilliant man and a really hard worker. He helped to get the Law Reform Commission established. He helped to get the Administrative Review Council established. He himself worked with John Ewen in drafting the Administrative Decisions Judicial Review Act (the ADJR Act) which is one of the most influential statutes of the Commonwealth in bringing the rule of law to a reality in our country.

His daughter is Lyndal Curtis, whose name you would have heard quite often on the ABC. She contacted me recently to say would I record something for her children so that they would know what a magnificent person Lindsay was, who died too young? So I’ll tell her of what was said about him today, because we should remember these 108wonderful civil servants who give their all, and are anonymous, but they are really very influential in our nation.

Now, two little comments, if I may, just very briefly before we get into the business of this session. Number one, I would say to Ben Atkinson, don’t change your script about the source of the constitutional power in relation to the original, or the second Copyright Act. Though the imperial rulers of Australia no doubt thought that all the colonial parliament out there in Australia was doing was implementing their will.

There is an alternative theory which has gained force during the course of the last century, that of the sovereignty of the people of Australia being the source of the Constitution, and their having voted in the referenda for it, that the source of the power of the Federal Parliament to do anything lay in the sovereignty of the people of Australia, and in the constitutional document of this country, and that therefore, in incorporating the imperial Act, they were doing what they thought was appropriate for the people of Australia, and the sovereignty of Australia.

Ben, you can put a footnote – I will let you put a footnote. There is an alternative theory about the source of the imperial statute in Australia, but don’t ever give away, ever – ever give away the sovereignty of the people of Australia.

Now the second point is, when I walked in, did you see this? I was sitting down humbly and quietly after my address this morning, and Leslie Zines said “some judges in this country, a minority view, take the view that the Constitution is a living document”, and then pointed at me! Now, if you look at what judges actually do in the High Court – if you look at what they did on the meaning of the word “jury” – I mean they didn’t go back and say “well only men can sit in juries in federal trials, only people of property can sit in juries” – they updated it. Was that originalism?

If you also look at Sue v Hill1 about a subject of the Queen, there is no doubt that in 1900, a subject of the Queen would have been a subject of the Queen, and that would have been it, and therefore, by saying, well, this was a subject of the Queen in the United Kingdom and that [therefore] she was disqualified from being a member of the Parliament of the Commonwealth, then that was not an originalist view. This is a debate they have in the United States – I’m telling you Professor Lessig, we have it here, and there are some who adhere to the view that you have got to go back to that original text. They don’t actually have to have 1776 dictionaries in this country, only 1900, but it’s not what they do, and therefore, we’ve got to keep our eye on what is actually done. I didn’t want that to pass. I just want you to have the benefit of my views on that.

109It was fantastic to hear Adrian Sterling in his tribute to Lindsay Curtis. Telling of Attorney General Bowen. Telling that this was legal, not political. I hope no-one in the room believes any of this is legal, not political. And saying the motto of this Conference – I took a note – tremblingly I wrote down “easy access with easy licensing”. I would suggest there may be an alternative theory, and I think this might be closer to the view of our speaker.

This is, “easy access with justifiable licensing”, because there is a question as to what is the justifiability of licence. See, we don’t want lots of easy licensing for unjustifiable purposes. We want easy, maybe easy technical, licensing, but only in circumstances where there is a true public interest, and I thought that that was the whole purpose of this conference to be talking about thinking again, conceptually and freshly, about what is the purpose of intellectual property law, and copyright law in particular. I really found the session this morning terrific.

Now, this afternoon, we have one of the great gurus of the intellectual property law world, Professor Lessig of Stanford, previously at Harvard and at Chicago, the great universities of the United States of America, the writer of all of those books that you know. I was the first to quote him in the High Court of Australia in an extended footnote, and also, I quoted Brian Fitzgerald. That’s why he loves me, just because I quoted him. What wonderful leaders we have here with Sam Ricketson and really fantastic people who think through and look deeper at these issues.

I had the privilege to go to a conference at King’s College in London and the keynote speaker was Lawrence Lessig, and he came along and he really conveyed two really original ideas to my mind and did it very, very clearly, as he will now do today.

The first was the idea of code, and how we are talking about a very important issue which has puzzled me since my law reform days. In this age of rapid technology and changes in biotechnology, information technology, and so on, how can a parliament keep up? The somewhat sobering news that Lawrence Lessig brought was, well, in part, that that is a question that has been bypassed, because now, often with information technology, and the multinational corporations that control it, the law is effectively embedded in the technology, and the local legislature is not always capable of changing how it works. The universality of the technology, which is what Professor Sterling was talking about, is really controlled by this phenomenon, and “code” is his word for it. I thought that was a really important point.

Professor Lessig really gave a fantastic presentation of the ideas that he has to the conference in London and I’m sure he is going to do so again today. So, without further ado, I would invite Professor Lessig to come forward, and to present, and then we are going to have an interaction afterwards, so that there will be a real dialogue at this meeting.