An Interview with Hon Justice Tricia Kavanagh

Former Justice of the Industrial Court of New South Wales; Former Deputy President, NSW Industrial Relations Commission

It's a gorgeous autumn morning in Palm Beach as we overlook the idyllic vistas of Pittwater. Yet Tricia Kavanagh is hard at work on a bank holiday at her desk while her husband Laurie Brereton, once one of the most combative politicians of his generation, potters around their waterfront garden.

The day before they had 40 guests for a barbecue lunch. But, as the retired judge points out when she rises to pick up discarded sweet wrappers from the lawn, most of the visitors had been their brothers and sisters, their children and many grandchildren.

Retired and busy as ever

The Honorable Justice Dr Tricia Kavanagh may have retired from the Industrial Relations Commission of NSW in June, 2012 after 14 years. But she's as busy as ever.

Two high profile cases have seen her name more prominent in the newspapers than ever. First she was called in to represent the embattled former Speaker of Federal Parliament, Peter Slipper, in the sexual harassment case brought by James Ashby, a former member of his staff.

Then she found herself at the centre of a massive rugby league scandal after the then-board of the Cronulla Sharks asked her to carry out an internal review of the circumstances which led to doping charges which now threatens the club's very existence.

For most of her life, Kavanagh has prided herself on being a quiet achiever, "flying under the radar" as she puts it, particularly given her husband's public profile. "The Sharks case has ruined all that," she laughs. "Not a lot of people knew what I've done until now."

The Slipper case

The Slipper sexual harassment case (separate from the charges he faces in the ACT Magistrates Court over the alleged misuse of Cabcharge payments) came out of the blue. "Mr Slipper had sacked all his lawyers and the judge had been very cross with him because he hadn't turned up for a hearing," she recalls. "I was asked to represent him at the mediation, which was very different from being the mediator!"

The Federal Government, controversially, had already settled with Ashby, but Slipper - who has been forced to resign as Speaker over the scandal - was determined to hold out. "I remember walking in for the mediation in the Federal Court and feeling the sense of relief from all the other parties that Mr Slipper was actually being represented."

She argued against a significant settlement. "To me, it was an employment case. The young gentleman had only been employed for three months. It was my view that the texts during the employment period were different to the earlier ones where there had been some frolicking."

The Federal Court dismissed Ashby's case in December 2012, agreeing and finding the charges were "vexatious and an abuse of the legal process". That judgement is currently on appeal.

Drugs in sport

As for the other high profile case, Kavanagh, a former deputy chair of the Australian Sports Anti-Drug Agency (ASADA), was overseas on 7 Feb, 2013. That's when the Federal government broke the stunning news that a 12 month investigation by the Australian Crime Commission, supported by ASADA and the Therapeutic Goods Administration, had unveiled major crimes in Australian sport.

One of the key findings was that peptides, hormones and illicit drugs - some not approved for human use - had been administered to players, sometimes by sports scientists, high-performance coaches and sports staff. Within days, Cronulla Sharks had been identified as one of the Australian Crime Commission's main targets.

"I got a call from the Sharks directors who asked to come and see me," Kavanagh explains. "Within an hour of listening to what they had to say I told them they may have a big problem. Within four or five days, I'd found out the whole shocking story, which has still not come out."

She's finalising her report as we speak and cannot talk further about the details, except to say that she helped the players get their own independent lawyer, separate from those representing the football staff accused of condoning the controversial methods used by sports scientist Stephen Dank, and the club itself.

Such murky sagas as the Slipper case and the Sharks scandal seem a world away from Kavanagh's first job - as a rural school teacher in Cootamundra. She was born in Sydney the daughter of a publican and "a country girl", both proud of their Irish heritage. Kavanagh was educated initially as a boarder at the Dominican Covent, Moss Vale before moving in her teenage years to Our Lady of the Sacred Heart in Kensington.

There she was introduced to another "classic Irish" family, the Breretons, whose daughters attended the school though it would be several years before she paid any attention to their brother. Teaching was an obvious career for a woman in that era, and Kavanagh says she enjoyed her time in the classroom. But in late 1967 she went overseas - an experience that would change her life irrevocably.

She'd planned to base herself in London as most young Australians did. But she stopped over in New York to visit family, including a cousin who was vice-president of NBC. "I just landed in Central Park West and stayed," she explains. It was the late sixties and feminism was emerging as a force for social change.

By the time she returned to Sydney in 1970 Tricia Kavanagh had become a political activist. "I joined the Labor Party, where I met Laurie and Paul Keating and all those other young people," she recalls. "And I assisted a group of young women who were writing the party's child care policy which was later adopted by the Whitlam government."

"There was no long day care, or after school care, or holiday care back then. The child care committee included Ann Symonds, who became a member of the NSW upper house, Jeannette McHugh, who became the Federal member for Phillip, Anne Gorman, a social worker, and Winifred Childs, a psychiatrist. They were all interesting women who went on to achieve in their own right."

As a result of that work, Kavanagh moved to Canberra from 1973-5 as one of three full time members appointed by the Whitlam Government to the Interim Children's Commission, helping to establish a range of children's services and advising the government on children's rights.

She also began working in the trade unions movement initially for the Shop Assistants Union which was then amalgamated into the Australian Workers Union. That involved her appearing in court regularly, and by the time the Whitlam government fell in 1975, Kavanagh had realised she wanted to be was a barrister specialising in industrial law.

The University of Technology, Sydney (or the NSW Institute of Technology as it was then) was the only faculty offering law as a part time course. Though she'd applied to study at the University of NSW, she withdrew her application, deciding part-time study was a better route for her - something she has never regretted, and recommends to others.

"I was in the first enrollment of the law course," Kavanagh says proudly. "There were about 140 of us who enrolled, and by the time we graduated, there were about six. There's a photo of us somewhere. I achieved an Honours degree, so I became the first UTS graduate of law."

Classes were held in old Anthony Horden department store. "It was entirely derelict," she says. "It used to flood each time it rained." But the lecturers, led by the enthusiastic Dean, Geoffrey Bartholomew ("an interesting personality and a brilliant mind"), were highly motivated. And many of Kavanagh's part-time colleagues were already working in some area of the law - perhaps as police prosecutors or for the Attorney-General's office.

The course was meant to take six years, the first four of which were compulsory subjects. But, with her customary application, Kavanagh had finished all the compulsories in the first two years. "They hadn't noticed that I'd done all the compulsories, so when I went to ask what options I could chose, it turned out they hadn't any. Geoffrey Bartholomew said, 'You can do Jurisprudence (the philosophy of law) with me.' So we did it one-to-one in the pub, and I passed with distinction."

She had reasons for being committed. She and Laurie had married in late 1975 and she was expecting her first child (Anthony) in 1978 while she was at law school. (Spotting she was pregnant, the Dean made her get a letter from her doctor advising she would still take the exams: "The doctor wrote, 'If she says she'll do it, she'll do it.'")

But she also knew from her trade union work (which she continued while she was at UTS) that she was in a hurry to become a barrister, rather than take the traditional route of becoming a solicitor for a few years first. "I went straight to the bar when I graduated," she says. "It was pretty brazen, wasn't it? I was fortunate to be briefed by the trade unions immediately."

But as her husband's political career took off in the Neville Wran's NSW government - Brereton was Minister for Health from 1981-4, Minister for Roads from 1983-87, Minister for Public Works from 1984-87 and Minister for Employment in 1984 - Kavanagh's opportunities in industrial law began shrinking for fear of a perceived conflict of interest. Many of her potential cases were in health, transport and employment.

"It was always going to be difficult in Industrial Law so I transferred to Common Law, which included industrial accidents and injuries" she says. "It was a practical decision and I never regretted it, but my love was always Industrial Law."

Kavanagh built up a profitable practice in Common Law, but began counting the days she could move back to Industrial Law once her husband moved to the Federal arena in 1991, becoming Paul Keating's Minister for Industrial Relations and Minister for Transport from 1993-96.

When Keating lost office to John Howard in 1996, Laurie Brereton became the Shadow Minister for Foreign Affairs (a position he held until 2001). "When Laurie became Shadow Foreign Minister it gave me the opportunity to go back to where my heart was: Industrial Law. So I spread the word around and soon I had built a nice little practice in Industrial Law. That's when I was given the opportunity to join the Bench.

"I'd had earlier opportunities to become a judge. But I had turned them down." By the time she was sworn in as NSW's newest Industrial judge in June 1998, Kavanagh was also an expert in the area of sports' antidoping laws.

A decade earlier, "Graham Richardson (the controversial Hawke government minister turned media pundit) rang me," she recalls. "He was Minister for Sport and he said, 'We've got bipartisan support to set up a sports antidoping agency and I'd like you to keep an eye on it.' I turned him down several times. "But he said, 'Look, you know how Australia feels about its sports stars. If this goes bad, a government could fall.' "That was very perceptive of him if you think what's happening in sport in 2013."

What was launched as the Australian Sports Drug Agency in 1990 and is now recast as the Australian Sports Anti-Drug Authority (since 2010) led Kavanagh - who is not a natural sports fan - to a new passion. "We were trailblazers at ASDA," she says. "Australia, France and Canada led the way in setting up an international anti-doping system. "As a result, I collected all this primary research material. Frankly my chambers floor became full of files about sports doping and drugs."

"One evening I actually tripped over the files and hurt my shin. I remember going down in the elevator and rubbing my shin, thinking, 'Some young academic is going to use these files as raw material for a doctorate one day.' When I got home, the house was empty. Laurie was in Canberra and the boys (Christopher is five years younger than Anthony) were boarding at Riverview College."

"I could have sat up all night advising in Common Law, cases but I realised the law was absorbing me too much. So I decided: You know what? I'll write those files up myself." Again, she enrolled at UTS, this time for a doctorate. Her thesis was entitled: Drugs, Sport and the Law, an Australian Perspective - the need for an International Court.

Before completing her doctorate, Kavanagh happened to be chatting to John Coates - head of the Australian Olympic Committee - at a function in Canberra. Kavanagh told him she'd done some research work in sports doping, and felt sanctioning could no longer be left to individual countries which had a vested interest in their best athletes continuing to perform. Coates took note. Kavanagh was appointed a member of the Australian bid team for the 2000 Olympics and - by then one of the founding arbitrators of the International Court of Arbitration for Sport - became the Australian judge nominated on the Court's panel for the Sydney Olympics.

"I've been sitting on doping appeals, sanctions and various selection disputes since 1994," she says. If everything else in Kavanagh's life seems too good to be true, in 2003 she underwent one of medicine's most hazardous operations: a liver transplant. "I had a medical condition which made me very large," she explains. "I looked like I was nine months pregnant for over five years. I used to wrap myself up in shawls and carry on."

Though she was in pain, physically and emotionally, she continued going to work each day until one morning in April 2003 she was anaesthetised, not knowing if she would wake up. "When I did wake up they said, 'We didn't do it.'" That must have been devastating? "It was difficult, but I went to work and didn't tell anyone."

Five months later, Kavanagh got the second call that a donor's liver was available. This time she woke up to good news. "I think I only missed two months' work," she says, as if that was important. "Now I feel marvelous. I am so grateful I simply take one tablet in the morning, and another at night."

It's time for her to get back to work on the Sharks report. Within a few days, her name will again be on the front and back pages. When she retired from the Bench, she must have expected to be able to relax on public holidays. Instead, she's as busy as ever. But, frankly, she probably wouldn't want it any other way.

Words: Steve Meacham April 2013