Contents 2 Editor’s note 3 President’s Column 4 Letter to the Editor BarThe JOURNAL of the NewsNSW BAR ASSOCIATION 5 Opinion Summer 2005/2006 Restricting access to justice Aboriginal people and access to civil law remedies 17 Recent developments High Court cases Bar News Editorial Committee Family Relationship Centres Andrew Bell (Editor) 21 Looking north Keith Chapple SC Arthur Moses The Indonesian response to the so-called ‘War on Terror’ Chris O’Donnell 30 Addresses David Ash Michael Kearney The 2005 Sir Maurice Byers Lecture Matthew Darke 36 Features Christina King The banality of evil: Observations of the International Criminal Tribunal for Rwanda Jodi Steele Appointments and disappointments: The Hight Court & the US Supreme Court Chris Winslow (Bar Association) Steven Rares SC (Adviser) 44 Courts Federal Magistrates’ Court: A successful experiment Comonly asked questions about the Federal Magistrates Court of Australia Design and production 25th anniversary of the Land & Environment Court Elephants and the law Weavers Design Group A century of change at the Children’s Court www.weavers.com.au 59 Practice / professional conduct Freezing orders hot up Advertising Complaints under the Legal Profession Act 2004 To advertise in Bar News visit www.weavers.com.au/barnews 75 Personalia or contact John Weaver at Readers 2005 Weavers Design Group The Hon Justice Michael McHugh AC at [email protected] or phone (02) 9299 4444 75 Appointments The Hon Justice Susan Crennan The Hon Brian Preston Cover The Hon Justice Peter Graham Genocide memorial site guardian, The Hon Justice Richard Edmonds Danielle Nyirabazungu, close to the The Hon Justice Paul Brereton skulls of the people killed during the 1994 genocide in the church of 87 Vale Nyamata, Rwanda, where 10,000 The Hon Justice Bryan Beaumont AO people were slain. Terence Keaney Photo: AFP photo / Gianluigi Guercia Anthony John Enright / News Image Library The Hon Justice Graham Hill The Hon Justice Peter Hely ISSN 0817-0002 99 Crossword by Rapunzel Views expressed by contributors to 100 Book reviews Bar News are not necessarily those of the New South Wales Bar Association. 108 Clerihew 109 Sporting Bar Wombat tour Contributions are welcome and NSW Barristers v Victorian Bench and Bar should be addressed to the Editor, Andrew Bell 113 Coombs on Cuisine Eleventh Floor Wentworth/ Selborne Chambers 180 Phillip Street, Sydney 2000. (c) 2005 New South Wales Bar Association DX 377 Sydney This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent amendments, no part may be reproduced, stored in a retrieval system or transmitted by any means or process without the specific written permission from the copyright owner. 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It is fully furnished, cycling in Provence's premier dining and including a library of art books, CDs and wine growing region. For tariff and bookings phone Elayne Hayes at 0418 276 595 or e-mail her at [email protected]. The website is www.theprovencalexperience.com. Editor’s note The deaths of Justices Bryan Beaumont, upon the court’s workload, it does invite for debate the Graham Hill and Peter Hely in the five question of the optimal size of the High Court. That, together months since the last edition of Bar with the mode of appointment to the court, is a topic likely to News have rocked the profession. Each, attract attention with the relatively imminent retirements of in his own different way, was an Callinan J, Gleeson CJ and Kirby J. Solicitor General Sexton outstanding lawyer and dedicated to the SC’s paper on appointments provides an interesting historical profession, the wider community, the and comparative focus. Federal Court and the rule of law. Bryan In the current issue, we publish Justice Gummow’s Sir Maurice Beaumont’s extensive contributions in Byers’ lecture on ‘Statutes’, thus ensuring that all lectures in all of those fields were the subject of an this distinguished series have been published in the Bar Bar News appreciation contained in the last edition of . Graham Association’s official journal of record. We also publish an Hill’s contributions (apart from his almost 17 years’ service on important opinion piece by Anna Katzmann SC on the subject the Federal Court) were largely but by no means exclusively of ‘Restricting access to justice: changes to personal injury through his commitment to legal education. He had lectured laws’. Colin McDonald QC continues in his tradition as our continuously at the University of Sydney Law School for 38 correspondent from the Top End with a feature on Indonesian years far exceeding the length of service of any other courts and terrorism. Peter Skinner writes of his visits to permanent or part-time member of the Law Faculty. Having Rwanda and the work of the war crimes tribunal. Arthur Moses been the beneficiary of a number of university scholarships has also written an informative account of the work (ever- after his stellar undergraduate career, he was truly one who expanding) of the Federal Magistrates Court. more than repaid the opportunities which had been afforded to him both by the University of Sydney and the scholarships Incoming Bar Association President Michael Slattery QC he was awarded. And then there was Peter Hely. Unlike Justices writes his first column. Slattery QC replaced Ian Harrison SC Beaumont and Hill, who were appointed to the Federal Court as president of the association in November 2005. Every in the 1980s, Justice Hely’s appointment only came in 1998. member of the association should applaud Harrison’s service to Prior to then, he was rightly described as a ‘colossus’ of the the Bar, comprising not only his many years on Bar Council, his NSW Bar. He was also dedicated to the profession, serving for 10 years as a member of the executive and his last two years as many years on Bar Council. president, in particular. In what is, in effect, a two year term, few would appreciate the hours of time daily given, without With the retirement of Justice McHugh from the High Court, recompense, to the association and the profession. Harrison’s the entire Australian legal community has lost the services of speeches, both at swearings in and other occasions, have been a one of its finest judges. From the perspective of the NSW Bar, highlight for their combination of humour and sincerity. But Justice McHugh was and is held in enormous and genuine members should not overlook the fact that, speech-making affection. He has continued to be, in his 21 years on the Bench, apart, there is a vast array of other obligations to which the an inveterate supporter of the Bar. He has remained committed president must attend. In what is an undoubtedly a position to its values and institutions, and has been and, one trusts, will where it is not possible to please all of the people all of the continue to be a popular presence around Phillip Street. In a time, Harrison’s efforts and dedication to the task are warmly somewhat surprising ‘tradition’, the High Court does not acknowledged. honour retiring puisne judges with a farewell ceremony in Canberra. In lieu thereof, an informal farewell occurred on 7 On a final note, the last edition of Bar News carried an opinion October 2005, the last day on which Justice McHugh sat in piece by Barker QC and Toner SC in relation to the cases of Sydney as a member of the full bench on special leave day. His Mamdouh Habib and David Hicks, to which Attorney-General remarks on that occasion together with those of Hughes QC on Ruddock responded. It is an objective fact that a further six behalf of the Bar are reproduced in this issue. Interestingly, on months have passed and Mr Hicks still awaits a trial in the that day, two special leave benches were convened in Sydney, United States. Whatever the merit or substance of the charges an indication of the growing volume of the work of the court. against Mr Hicks, it defies one’s deepest sense of justice that This was a theme touched upon by Justice McHugh in his the charges are yet to be prosecuted. It is a scandal which only speech ‘Working as a High Court justice’ to the Newcastle Law grows larger.