Obituaries

Obituary by Mick Dodson & David Allen

"As a young man, I remained naively unaware of the existence of the Aboriginal people of this land and of the policies and practices that had been in place since first settlement, and that were still in place in the 1940s, 50s and 60s. Nevertheless, it troubles my conscience now that it took me until 1971 to really commence to see that the determination not to stand by and see the Jewish people downtrodden and persecuted, was meaningless if I was standing by and seeing another oppressed people downtrodden and persecuted within my own country."

Speech by Ron Castan Indigenous-Jewish Forum Monash University November 1998

Ron Castan AM QC is finished. His spirit lives. His own words stand as testament to the kind of man he was, and why our loss is so deep and our grief so profound. Ron was a remarkably decent man whose heart and conscience always guided his intellect. Indigenous Australians have lost a champion: the entire country has lost a treasure.

His generosity and commitment to the human rights of Aboriginal and Torres Strait Islander peoples was legendary and very few individuals have been so successful in translating personal commitment into precise legal effect.

For almost 30 years Ron played a leading role in some of the most significant Australian litigation involving the rights of Indigenous peoples: Mabo, Koowartha, Tassie Dams, Onus & Franklin are but a few of the most well known cases to which he brought the power of his considerable legal skills and the grace of his personality. In 1971, Ron became the founding secretary of the Victorian Aboriginal Legal Service. In 1982, the Mabo case was begun with Ron as senior counsel. He was by our side in the political struggle in the 1993 negotiations to honour Eddy Mabo and the others who had fought so hard to secure our land rights. He was there again, full of energy, in 1998, when Indigenous peoples together with our friends and allies were trying to minimise damage to native title during the Howard Government's amendments fiasco. Ron was always there.

While the justice of a cause should win a case, it cannot do so without the catalyst of human energy and advocacy. Ron gave the energy of his life and channelled his immense ability into the cause of justice. Not only for Indigenous Australians. As he said, justice is meaningless if it is not extended to all and a belief in justice is empty unless it is expressed in action.

Our hearts are weeping with the loss of such a man and such a friend. But our loss can rate little against the sorrow of his wife Nellie, his brother George, mother Annia, his children - Melissa, Lindy and Steve and grandchildren. We offer our deepest condolences.

Reproduced with thanks from Indigenous Law Bulletin October 1999, volume 4, issue 24.

 

Obituary by The Hon Justice Michael Kirby AC CMG

15 November 1999

To Honour the Memory of the late A R Castan AM QC

 RON CASTAN REMEMBERED

 LET WORLDS COMBINE

"Let these two worlds combine.
Yours and mine.
The door between us is not locked.
Just ajar"

We reach into poetry to express our thoughts about the life and work of Ron Castan. There is something in poetry and music - in their rhythms, rhymes and harmonies - which help us to transcend ordinary expression. So I reach for the poem of Jack Davis, an Australian Aboriginal poet2. It is a poem written for the worlds of Aboriginal and non-Aboriginal Australians. But it applies equally to the worlds of Jews and Gentiles; men and women; Anglo-Celts and later migrants; gays and straights; old and young. The worlds which Ron Castan shared with all of us:

"There is no need for the mocking
Or the mocked to stand afar
With wounded pride
Or angry mind.
Or to build a wall to crouch and hide.
To cry or sneer behind.
Your world and mine
Is small.
The past is done.
Let us stand together,
Wide and tall
And God will smile upon us each
And all
And everyone."

I can remember the first time that I met Ron Castan. It was in Sydney in the 1980s. It was at a function organised by the Friends of the Hebrew University of Jerusalem, to which he was to devote much time. He was already a leading member of the legal profession of Victoria. He came to the Sydney dinner as the newly elected President of the Council for Civil Liberties. I think the organisers had expected only one of us to accept. But we both did. Each of us spoke about issues touching liberty.

As I watched Ron Castan make his address - with fire and passion combined in equal measure with intellect and feeling - I asked myself: who is this restless spirit? Who is this radical man so different from my Sydney stereotyped image of a Melbourne Silk - with their envied rosettes and their studied politeness? I could see that I was in the presence of a man with a mission.

As I looked at Ron Castan he seemed to be a person on the fast track for appointment to the senior judiciary. When it was announced in late 1995 that Sir William Deane would be the next Governor-General, it could easily have happened that Ron Castan might have been appointed in his lace to the High Court of Australia. Justice Deane was, after all, a leading expositor on the Court of the law as it affected Aboriginal Australians. Ron Castan was the leading advocate in the well of the Court for Aboriginal reconciliation through law. So the call could readily have gone to him. But on 14 December 1995 the Federal Attorney-General telephoned me. History had another plan for Ron Castan.

Everyone in the law knows that the common law system shares its laurels between the judges and the advocates. It is advocates, as much as judges, who shape the destiny of the common law. By their imagination, learning, courage and forensic skills, advocates create the agenda and map the course of the greatest legal developments. Ron Castan was to be one of the most important of the cartographers. His legacy is indelible.

Before my arrival on the High Court, he had already made his mark in important cases such as Salemi3, a decision in the field of migration and administrative law. In my time on the Court I saw him in many cases, large and small. He appeared in the Levy Case4 to advocate the extension of a constitutional immunity from legislation that would inhibit free speech and public debate. The last case in which he appeared before the Court was of quite a different character. It was the Figgins Case5 which concerned little more than the land law of the State of Victoria. It had climbed to the High Court through the decisions of an arbitrator, a single judge and the Victorian Court of Appeal. Ron Castan won that case. There was no real passion about it. It was just technical land law. It is important to understand this about him. He was a fine, skilful and knowledgeable lawyer. He had the talents to make the most technical questions come alive.

Yet the biggest contribution which Ron Castan made to the shape of Australia's law, on the brink of a new century, was in the great cases which restated the legal relationship between Australia and the Aboriginal and Torres Strait Islanders whose forebears were in this land before the settlers came. In two hundred years time, and more, they will still talk of Mabo6. There was no more radical design than that which Ron Castan conceived with his colleagues to rewrite 150 years of settled land law. It was a plan breathtaking in its boldness. It challenged fundamentals. It did so in an area traditionally resistant to change in every legal system - rights in land.

How easy it might have been for the Court to have taken a tiny step, a mere toehold towards a new legal principle. To have held that there was something special in the Murray Islands off the coast of Queensland. To have held out the hope that later, in a hundred years perhaps, a larger and wider principle would emerge in the manner of the common law - from precedent to precedent, as Tennyson said. But instead, the Court, beckoned by the advocacy of Ron Castan and those of like cause, rewrote the major premise. In a moment, 150 years of terra nullius was cast aside. A new chapter in the legal rights and national dignity of Australia's indigenous peoples was begun.

Mabo was decided before I joined the High Court. But soon after I arrived came a new test, equally important, in the Wik Case7. This was the case in which the idea written in Mabo was to be extended beyond theory into practice. This was the claim to push the Mabo principle into highly practical relevance in the vast areas of our continental country over which pastoral leases had been granted. Ron Castan helped to conceive the idea of Wik and to draft its pleadings. In the end he was not its advocate but his mind was present in the concept. The Court was narrowly divided and as is known, the Wik succeeded by the narrowest of margins: four Justices to three8. When in two hundred years lawyers and others in Australia talk of the critical turning points in our law, Mabo and Wik will surely be amongst them. And then they will talk of the advocates who conceived, supported, organised and achieved these successes, Ron Castan will be remembered.

He was, of course, always a slightly mischievous advocate. Years ago, when the practice of court dress in Australia began to change, the High Court laid down the rule that barristers appearing at its table should dress in the manner approved by the Court by which they were admitted. In his last case before the High Court, a message was sent to the Justices by Ron Castan. It was received moments before the hearing began. Could he please have permission to appear in Court without a wig? Somewhat provocatively he added, "In the same manner as the Justices themselves". Ashen faced, we passed his note one to the other. One Justice, I will not reveal her identity, suggested that we could scarcely insist upon the wearing of a wig when we had abandoned it ourselves a decade earlier. As sometimes happens (you may have noticed) there was a difference of opinion amongst the Justices. There were dissenting voices. But the message went back: "If you wear the rosette, you wear the wig". As we sailed into Court, there was Ron Castan at the podium with rosette and wig firmly in place; and a large smile to greet the Justices. 

THE LESSONS OF LIFE

As we reflect upon Ron Castan's remarkable career, we are bound to ask why he became the man and the advocate he was. Why did he not just take the highly profitable path of the commercial silk, with fat briefs packed with trust deeds and conveyances in vellum? What rescued Ron Castan from the life of elaborated debt recovery, which is what most of the biggest commercial cases really involve? A life such as his demands that we answer these questions for they are important for an understanding of the law as a profession:
The first lessons he learned in life were from his parents. From his late father Mossie and his mother Annia, now in her nineteenth year. I am glad that she is present to hear the praise of her son and the love and respect which so many held for him. The values which his parents, Russian Jewish immigrants, instilled in him lasted all his days. His forebears and those of his wife Nellie teach us the fearful losses which the world suffered in the Holocaust and the high moral obligation we have to prevent its repetition, whether in large and small ways. This the young Ron would have come to appreciate. These were lessons that endured.

As a Jewish boy at the Carey Baptist Grammar School in Melbourne he learned what it was to be different. Each one of us is different. At school, I too found that I was different. A civilised life teaches that difference is the glory of the human species. As the mind of Ron Castan, schoolboy, was formed, it came to appreciate the richness to be absorbed from different cultures and different identities. Avidly he kept his mind open; and he did so to the end.
In his professional life it was open-mindedness that helped him to take the leap of the intellect that was to prove so critical in the Mabo Case. In Lae in Papua-New Guinea in 1973, led by Bill Kearney QC, he took part in a claim by two groups of indigenous peoples against the Crown. They sought to assert their title to land in the districts of their ancestors. Lionel Murphy once told me that the greatest thoughts that ever occurred in the law happened by serendipity. They do not occur by the processes of logic. They do not emerge by linear reasoning. They spring into the mind from the most unusual sources and at the most unexpected times. And let it be acknowledged that there are real merits in a judge or a lawyer having as a spouse or partner a person who is outside the charmed circle of the law. This is certainly true in my case with my partner Johan. It was also true in Ron Castan's case with his wife Nellie. Nellie has escaped the seductive wiles of the law. When she and Ron Castan were talking about the claims of the native peoples in Papua-New Guinea, she demanded to know why a similar claim could not be mounted for the Aboriginal peoples of Australia. Patiently, Ron Castan began to give the reasons. A Privy Council decision. A hundred and fifty years of case law. Accepted legal doctrine. Statutory provisions enacted on that hypothesis. On and on went the reasons. But Nellie's persistent questioning entered Ron Castan's conscious and unconscious mind. How valuable it is to have someone say: "You are a prisoner of your own absurd hypotheses! Think again! Challenge received wisdom when the world has moved to another plane! Escape the prison of your mind!" This Nellie did and Ron Casten listened. In two hundred years the role of Nellie Castan and of other questioners will be acknowledged. We should all question received wisdom. Sometimes it was right and wise for the time in which it was propounded. Sometimes, viewed with contemporary eyes, it is seen to rest on dubious foundations9.
Ron Castan also learned lessons from his work in civil liberties. In his work with disadvantaged people. Drug dependent citizens. Gays and lesbians. Victims of race hate and official oppression. His mind ventured beyond Australia. He became concerned in the rights of the Tibetan people and made a true friendship with His Holiness the Dalai Lama. At the time of his death, he was studying ways in which he, and other Australian lawyers, could support the re-building of the rule of law in East Timor after its act of self-determination. His was a mind alert to discrimination and disadvantage in all of its manifestations everywhere.

But possibly the most profound lessons were learned once Ron Castan became the advocate general for Aboriginal and Torres Strait Islander people. From them he learned lessons of spirituality, forgiveness and the never-ending quest for reconciliation. But he also learned of the demand for justice, of a determination to achieve fairness and of the affront to our history which would never be quietened until the wrongs of the past were corrected. He felt the injuries to the indigenous people with a special sensitivity because of the injuries that had been done to his people in Europe in his lifetime which too many ignore or even deny.

And then, in the small circle of his family, he learned the lessons of intimate love. From Nellie, his wife, from his children Melissa, Lindy and Stephen, and from his six grandchildren who were the joys of his last days. None of us, however close, ever enters that special private space of a person's closest family. It is in that space that Ron Castan still lives. He is alive in the genes and in the hearts of those he left behind. Kath Walker, Oogeroo of the Nunuccal, explained, in a very Aboriginal way, the manner in which love and sorrow are entwined. She called her poem simply "Song"10:

"Life is ours in vain
Lacking love, which never
Counts the loss or gain.
But remember, ever
Love is linked with pain.
Light and sister shade
Shape each mortal morrow
seek not to evade
Love's companion Sorrow,
And be not dismayed.
Grief is not in vain,
It's for our completeness.
If the fates ordain
love to bring life sweetness,
Welcome too its pain."

ABIDING STRENGTHS

I asked colleagues to define the abiding strengths of Ron Castan. The answers they gave differed.
Some searched in the memory for his intellect. He was very clever. He was quick on his feet. He won the Supreme Court Prize, you know. He was well organised. He was a good technical lawyer. All of these things could be seen deployed in the well of every court in which he appeared.

Some preferred to identify his professional skills. He was courageous, a wonderful thing in an advocate. He was bold, as Patrick Dodson has averred. He was in many of the big cases. This gave him the intellectual capital and the skills which are irreplaceable and which can only be gained from experience. He was very canny and wily. He was imaginative. He made the judges, his opponents and ultimately all Australians, think freshly.

Some referred to his personal qualities. His heart and mind were in gear. He had a rare capacity to bring warring factions together. He looked at judges with a smile as they sent thunderbolts that seemed to destroy an argument. Never dismayed, Ron Castan deftly avoided most and occasionally lobbed a thunderbolt in return.

But for me the essence of him is not intellectual. It is not professional. It does not even lie in his sterling personal qualities. Judges and advocates come and go and all of these qualities, in different proportions, are common enough. The essence of him was something spiritual. He had a very big spirit. It was big enough for the Jewish people and the immigrant communities from which he himself had come. It proved big enough to embrace the indigenous people whose true champion he was to be. It was big enough for drug dependent people, down and outs and those who were politically incorrect. It was big enough for his gay and lesbian fellow citizens. It proved big enough for Tibetans, far away, denied their own homeland. It was big enough for the East Timorese and for our Indonesian neighbours, struggling to embrace constitutionalism. It was even big enough (as the Levy Case11) shows to include ducks and other animals. For Ron Castan, all sentient beings, shared the planet. All life was precious. From his parents' knees to the end, he exhibited that element which was taught to him as a child as Chesed - the Hebrew word for God's loving-kindness in which all of His creatures have a chance to share. Share, Ron Castan, certainly did. His was a spiritual journey of love unbounded

And we so cherish Aaron Ronald Castan. Member of the Order of Australia. One of Her Majesty's Counsel learned in the law. Honorary Doctor of Laws. Australian citizen concerned about justice for all. Friend to the Aboriginal and Torres Strait Islander peoples of Australia. Foe to discrimination. We salute his memory. We will keep it as a beacon before us. And lawyers will keep it bright before them, as an example of the best that the legal profession in Australia offers.

Spoken at the Koorie Heritage Trust Inc Dinner, Melbourne, 15 November 1999

 

Obituary by Bryan Keon-Cohen QC

18 November 1999

Bryan Keon-Cohen QC is a member of the Victorian Bar, an Adjunct Professor of Law, Monash University, and now works as the Principal Legal Officer, Mirimbiak Nations Aboriginal Corporation, the Native Title Representative Body established for Victoria under the Native Title Act 1993 (Cth). He was Ron Castan's junior in Mabo and other High Court cases during 1982-1998; and was Secretary of the VCCL (now Liberty Victoria) during Rons term as President.

By any standards, Ron Castan was a remarkable man. His activities and interests spread far and wide across the nation's legal, commercial, political, artistic and philanthropic life - not to mention his family, and his prominent place amongst the Jewish community of this country, and overseas. Indeed, so wide were his activities, I doubt whether anyone beyond his wife Nellie, and immediate family, is familiar with them all. His contribution in all these spheres was outstanding - as was acknowledged in 1993 with the conferral of his AM, and as has now been recalled in a number of glowing obituaries since his untimely death on 21 October last.

But most of all, it was Ron's personal qualities that endeared him to his many friends, colleagues and associates. Blessed with acute intelligence and formidable abilities as a negotiator and lawyer, he was nevertheless unassuming in nature, always kind and considerate to others, especially those in need, always ready to hear and discuss ideas - however speculative or bizarre - and devoted to the purging of injustice wherever he saw it. To me, he demonstrated the highest principles of his faith, his profession, and of caring humanity. He showed us through his daily work and relationships, what a human being can achieve for the betterment of the community. We are all in his debt.

For readers of this journal, Ron epitomised the spirit and practice of law reform, the practice of pro bono law, and support for the underprivileged. Ron graduated from the Melbourne University Law School with the Supreme Court prize in 1961; obtained a masters degree at Harvard, commenced practice at the Victorian Bar in 1966, and took silk in 1980. He comfortably traversed, as a pre-eminent counsel of his day, both taxation, commercial and constitutional law, on the one hand, and 'poverty law' issues - discrimination, indigenous rights - on the other.

Over a working-relationship at the Bar of some 17 years, I observed his pro bono and public interest activities first hand on many occasions. Many beat a path to his door and once Ron was convinced that there was a proper argument to put - all be it one that no-body had thought of before - he would take on the issue, and think about the fees (if any) later. Over and over again, impecunious litigants were assisted in the superior courts through his wisdom and judgement, negotiation skills, and formidable advocacy - especially in the High Court. Indeed, it can be confidently said that without the different but vital contributions of both Eddie Mabo and Ron Castan, the Mabo cases would never have survived their ten-year torturous course - let alone succeed. The same observation applies, in my experience, in relation to many other Federal Court and High Court matters. Through countless contributions both financial and intellectual over two decades, Ron kept these cases alive - and often won.

At the Bar, Ron had a great sense of advocacy as the art of persuasion: conferences with him inevitably concluded with ruminating about how this or that Justice of the High Court might respond to particular arguments - a topic which fascinated him. He was convinced that one should always remember that judges, however elevated, also read the newspapers and are human: one must, in appellate as in most other forms of advocacy, choose words and structure the argument with great care to appeal to this judge or that - particularly in difficult cases where judges had choices. Having said that, his style was loquacious, engaging, and oftentimes not at all reflective of his notes! And above all, he was a creative lawyer, seeking to adapt and develop established doctrine in a life-long search for justice.

He thrived on the cut and thrust of intellectual debate, especially in the High Court, and, in later years, was really not terribly interested in appearing elsewhere. This was the Court which, to him, really mattered in terms of the development of legal policy and principle. And of course, the tragedy is (like another outstanding Victorian lawyer of his generation, Sir Leo Cusssen, 80 years previously) that he was never appointed to take his rightful place on that court. For the past decade, nobody in the lifts of Owen Dixon (where the most important assessments are made - and re-made) doubted that his elevation was overdue and fully warranted. As Justice Kirby acknowledged in a heartfelt speech at a Melbourne dinner in Ron's honour recently, one of several such opportunities arose with the resignation of Sir William Deane in November 1995 - yet 'the call' came to Kirby J, who took his seat in February 1996. But this tragedy (that is, Ron's non-appointment), if tragedy be the right word, is the nation's loss: Ron was far too busy, and too interested in his many and varied pursuits, to worry about this obvious error made by those in high places who make such decisions, an error which persisted for a decade or more.

Another intriguing element in Ron's professional life, to my mind, is that though he accumulated vast experience and a deep understanding of legal principle across many fields, and though he, as a Silk, actively drafted, re-drafted and settled often voluminous submissions with his juniors (in Mabo, the final written submissions comprised six volumes), and though he wrote and delivered many speeches in many forums, he did not write a lot in the academic, technical, or journalistic sense - for example, in journals such as this. Ron was in his element when discussing ideas, particularly new and difficult ones, with others: not for him the isolated writer's garret to ponder and record. This too I regret, for he wrote well, and with passion.

But relief was at hand - or so we thought. Just before his untimely death, Ron was beginning to mutter about taking a few months off somewhere convivial - of course with his beloved family and bicycle close at hand - to write his memoirs. This would have made fascinating reading - a bit like a modern version of Sir Owen Dixon's varied career. Some insights into the operations of the nation's senior levels of law, commerce, and politics might, for example, have been revealed, not to mention much heterogeneous exotica. A 30-year association with the Dalai Lhama; working with Sir Maurice Byers SG QC and Attorney- General Gareth ('Biggles') Evans in the Dams case in 1982; the resurrection, as President, of the Victorian Council for Civil Liberties during the 1980s; the workings of the Australian Constitutional Commission from 1986-1988; and of the Board of Governors of the Hebrew University in Jerusalem, which University annointed him Doctor of Laws; think tanks' thinking in the USA; lessons learnt through hearing discrimination cases as a sitting member of HREOC (the Brandy case for one); sitting as co-chairman of the National Inquiry into Racial Violence in 1989; bicycle riding around Victoria, the Grand Canyon or in China; assisting young artists with grants and encouragement; building family homes (sequentially) in Kew, South Yarra, and latterly, Somers; and much much more - especially the rich panoply of family and friends who were always close at hand, and close to his heart.

Perhaps others can now pursue these various tasks - but I fear nobody can do it quite like Ron. He is greatly missed, he is irreplaceable, but his work and personal example will, I'm sure, inspire many to carry on regardless.

One of his last published speeches, Castan, R., 'Land, Memory and Reconciliation', (1999) 11 Without Prejudice 3-10, delivered by his daughter, Melissa, to a forum organised by the Koori Research Centre and the Australian Centre for Jewish Civilisation at Monash University in October 1998.