Robert Hayes, 1942-2011

”He was the epitome of the radical romantic” … Robert Hayes was the antithesis of an ivory tower academic and no great friend of the big end of town.

As a dashing and brilliant lawyer, Robert Hayes made his mark on Australian society over more than 40 years by battling some of its least glamorous issues on behalf of its most neglected and discounted citizens.

He was one of the first crop of Australian lawyers to emerge from university training with a PhD (Monash University, 1973). Although his first job was in teaching at Monash, his life project – through his students and directly – was to have an impact on the way that the law engaged with society in the real world.

Robert Alexander Hayes was born on January 12, 1942, and grew up in Melbourne. in 1971, it was a combination of instinct, brilliance and mischievousness that had him recruited to Sydney to help to establish Australia’s most revolutionary law school, at the University of NSW. As a young academic, he had also taught at Canada’s McGill and Toronto universities, where he later held visiting professorships.

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When he took time out to practise as a barrister, Hayes’s advanced qualifications attracted the derision of some senior NSW lawyers, to whom intellectualism remained a threat. One of his early students at UNSW, Stuart Littlemore, recalls the treatment received by Hayes at Liverpool District Court, from the demanding judge Ernie Knoblanche. Rejecting a submission from counsel for a co-accused, Judge Knoblanche turned to the new advocate and observed: ”That’s unless Dr Hayes has something academic he wishes to contribute.”

Such was the attitude towards those presenting as too sharp of mind.

An expert in defamation, Hayes was recruited in 1980 as a full-time commissioner of the Australian Law Reform Commission. There he rescued its wayward four-year-old inquiry into privacy law, in time for its chairman, Michael Kirby, to deliver the historic three-volume, 1400-page report in the last days of 1983.

As Kirby remembers it: ”Hayes marshalled a big team of commissioners, consultants and a broad national dialogue to hammer out the fundamental principles of a new national law on privacy protection in the age of computers … [a] major, national legal achievement.”

Despite his intellectual pedigree, however, Hayes was no great friend of the big end of town. As Littlemore describes it, he alternated – depending on the circumstances – between describing himself as the son of a struggling tradesman, and as the son of a highly successful builder, ”quite able to send his sons to a GPS school in Melbourne [Scotch College]”.

He saw the role of a critical lawyer as being to reserve the most acerbic and uncompromising analysis for the most privileged. The more powerful you became in society, the less you should be trusted. He was to instil the same instinct in two generations of Australian law students, across seven universities including also the universities of Queensland and new England and his final home, the University of Western Sydney.

Some of his most lasting impacts stemmed from personal experience, after his daughter was born with down syndrome. With his first wife, Susan (nee Morgan), he wrote a trail-blazing book, Mental retardation: law, policy and administration (1982), transforming legal and policy attitudes by insisting that intellectually impaired people be visible and respected as human beings and citizens. according to Kirby, its impacts reached well beyond mental impairment: ”This became a mantra for all minorities in Australia.”

After Hayes had returned to UNSW and a period as senior member of the federal Administrative Appeals Tribunal, this focus led in 1990 to his appointment, aged 48, as president of the NSW Mental Health Review Tribunal. He held the key post for 10 years, during which time he remarried, to Elayne Hoole, in 1991.

As a law lecturer, Hayes was popular for his humour, style and directness. He confronted career-hungry students with the reality that conflicts over the rights and duties of citizens were often sordid and tragic, and rarely glamorous. his torts lectures began with stories of children being packed off to school by their mother, with fresh egg-and-lettuce sandwiches in their bags, only to mown down by a negligent driver or crushed by a falling building: ”terrible … imagine it … egg and lettuce everywhere”.

Littlemore described Hayes’s jokes as ”execrable … they owed a lot to the Benny Hill school of humour, only not so intellectually difficult”. according to a close friend, Suellen Bullock, Hayes explained his fondness for flying business class because, ”you have attractive women bringing you drinks and responding when you press a buzzer … in a modern marriage there is very little of that nowadays”.

As president of the Mental Health Review Tribunal, however, Hayes’s efforts in the least glamorous areas of the law reached their peak. Striving for fairness, dignity and care for citizens confined to the custody of the state as a result of mental illness – including those once labelled as ”criminally insane” – he led the last line of defence for some of the most misunderstood, marginalised and forgotten members of society.

Hayes collaborated with Michael Eburn to produce Criminal law and procedure in new South Wales (2002), now in its third edition. He remained involved in many community services, including the Intellectual Disability Rights Service and as chairman of Charmian Clift Cottages, a residential program for mothers with mental illness and their children.

Between 2002 and 2004, Hayes had further close engagement with legal practice, as director of studies for the NSW Bar Association. This appointment coincided with more rigorous standards of clinical and continuing legal education. according to Littlemore, ”we were fortunate indeed to have the right man in the right place at the right time … Robert put in place a very high standard of performance that has been upheld, and we are all in his debt”.

During his final academic appointment, at Western Sydney, Hayes continued his research and advocacy on liability, detention and treatment of the mentally ill, in partnership with psychiatric experts. in 2008, with Matthew Large, Chris Ryan and Olav Nielssen, he wrote in the Journal of Medical Ethics on ”the danger of dangerousness” as a criterion for treatment without consent under mental health legislation, when what was needed were criteria that focus on a patient’s capacity to refuse treatment: ”Dangerousness criteria unfairly discriminate against the mentally ill, as they represent an unreasonable barrier to treatment without consent, and they spread the burden of risk that any mentally ill person might become violent across large numbers of mentally ill people who will never become violent.”

With other authors, including Nielssen and Large, Hayes wrote in 2009′s Psychiatry, Psychology and Law on justifications and rationalisations for the civil commitment of sex offenders. While criticising preventive detention as unscientific, unethical and impractical, he showed his grip on the world by acknowledging a ”political reality … that these laws are unlikely to ever be repealed. Hence we also consider how the laws should be applied”. Hayes was the antithesis of an ivory tower academic.

In his later years, Hayes and Elayne established a much-loved second home in the Provencal village of Murs. in early 2010, not long before his diagnosis as terminally ill, he won the affection of a final cohort of French students in a common law master class at the Aix law school of the Universite de Provence.

To Littlemore, Hayes was ”the epitome of the radical romantic … a practical form of radicalism. It was achievable”.

Robert Hayes is survived by Elayne, children Josie, Andrew, Claudia and Edward, and grandchildren Eliza, Lorenzo and Leonard.

A. J. Brown

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