Ian McClelland Barker
Ian Barker QC, former president and life member of the New South Wales Bar Association, died on 19 December 2021.
In a rich and varied life, he rose from being an articled clerk to solicitor-general of the Northern Territory and then a pre-eminent jury advocate at the New South Wales Bar.
Ian’s career in the law began in 1952 with his articles of clerkship at Dairy Farmers Co-operative. In 1954 he began two years of National Service, during which Ian says he ‘formed an uneasy alliance with the .303 rifle’. He joined a small law firm in Katoomba and finally passed the Solicitors Admissions Board exam before his admission in 1960. In the following year he moved to Alice Springs, where a large part of his practice consisted of defending Aboriginal men and women charged with homicide. This was before the advent of the Aboriginal Legal Service and Ian worked for little or no remuneration. Few of his clients understood the language spoken in the courts and it was because of these experiences that Ian played an important role in the formulation of the ‘Anunga Rules’, which established guidelines for the interrogation of Aboriginal people in custody. It was during his time as a junior solicitor in the Alice that his career was forged. In 1963 the partner in his firm retired to Adelaide, leaving him as the only legal practitioner between Port Augusta and Darwin. This was also the time when Ian acquired an abiding fascination for the Northern Territory. Over many years he would write vividly about its rugged landscape, its brutal history, and the absurd manifestations of racial discrimination and segregation, such as the regulations governing bathing at Darwin’s Lameroo Baths. Ian would sometimes give an eyewitness account of Darwin in the aftermath of Cyclone Tracy, from Boxing Day 1974 when he picked his way through the ruins of the flooded court complex:
Murphy’s proposal was to nationalise the legal profession in the NT by making every lawyer an employee of the Legal Aid Office.
Ian persuaded him to discard the idea.
Court 4 contained a large and exceedingly dead turkey; I never learned why. It was clearly not sheltering from the storm. I sloshed my way upstairs and looked into the chief judge’s chambers. Two young people were copulating on his desk, so I left again…It was not something of which Sir William Forster would have approved, so I didn’t ever tell him.
One week after the cyclone, Attorney General Lionel Murphy flew to Darwin and met with Barker to discuss the future of the NT legal profession. Murphy’s proposal was to nationalise the legal profession in the NT by making every lawyer an employee of the Legal Aid Office. Ian persuaded him to discard the idea. Ian had moved to Darwin in 1970 and became one of the founders of the NT Bar. He took silk in 1974. The Northern Territory was granted self-government in 1978 and following an invitation from the chief minister, Paul Everingham, Barker was appointed as the Territory’s first solicitor-general in July of that year. It was in that capacity that he played a critical part in the creation of Kakadu National Park as a dual-listed UNESCO World Heritage area. Ian resigned as solicitor-general in July 1980 and moved to Sydney. He returned to the Territory in 1982 to prosecute Lindy Chamberlain for the alleged murder of her baby Azaria at Uluru in August 1980. Lindy Chamberlain described Ian as being ‘a shortish man with stooped shoulders, grey curls ringing a bald pate, and an insecure furtive way of hanging his head and peeping up at you from under his lashes’.1 The Chamberlain Case is now part of Australian folklore. It continued to excite curiosity and occasional debate on the part of the media, biographers and legal historians. Ian maintained a studied silence during numerous interviews, including one for the Bar Association’s own oral history program. He did, however, write an article on ‘Forensic science and the dingo’ in the Summer 1987 edition of Bar News, in which he described the problematic result of a controlled experiment to determine what a dingo would do in circumstances postulated by the defence in the Chamberlain Case.
For his entire time at the New South Wales Bar Ian practised out of Frederick Jordan Chambers. He defended Lionel Murphy, Abe Saffron, John Marsden and assisted the inquest into the shooting of Warren Lanfranchi. He represented the former ALP national secretary, David Combe in the Hope Royal Commission.
At the height of his career, Ian was acclaimed as one of Australia’s great jury advocates, but for those who were fortunate enough not to be cross-examined by him, he will long be remembered for his style of writing, which was at times witty but always erudite. He was a frequent contributor of letters to the editor and op-ed articles. He combined personal anecdote, legal comment, references to history and literature, and a deep commitment to an individual’s legal rights, no matter what that person’s antecedents may have been.
Ian was elected president of the New South Wales Bar Association in December 1997 following a turbulent period in the life of the organisation. He was a calm, guiding hand at the head of the Bar Council table. He was assisted at the time by the newly appointed executive director, Philip Selth, and the two became close friends. Ian quickly became an outspoken defender of judicial independence. This was a time of frequent and often strident accusations of ‘judicial activism’ following the High Court’s decisions in Mabo and Wik. There was an apparent unwillingness on the part of the attorney-general at the time to speak up in defence of judges. It was also a time when columnists such as Paddy McGuinness, Evan Whitton and Mike Carlton would criticise the adversarial system of justice, sentencing, legal professional ethics and other fundamental tenets, such as the separation of powers. Ian also worked tirelessly for an increase in the funds available for legal aid, for compensation to victims of motor vehicle accidents and injured workers, as well as opposing the growth in the appointment of acting judges.
Soon after his term as president, and following the attacks of September 11, Barker made informed criticisms of Australia’s anti-terrorism laws and the treatment of David Hicks and Mamdouh Habib by the Australian Government. He also spoke out against Australia’s treatment of asylum seekers. The touchstone of Barker’s advocacy on these matters was always that the rule of law must be applied equally, not only for the benefit of the most powerful, but also for marginalised and unpopular members of the community.
Barker was appointed as a life member of the Bar Association in 2001 and retired from the New South Wales Bar in 2017.
By Chris Winslow
1 Lindy Chamberlain-Creighton, Through my eyes: The autobiography of Lindy Chamberlain-Creighton, Bowden, SA, 2004, p. 235.