VICTORIAN BAR NEWS No. 126 ISSN 0159-3285 SPRING 2003

The Living Legends

Welcome: Pamela Tate Farewell: Justice Balmford and Judge Crossley The 2003/2004 Victorian Bar Council Women and the Law: Promoting Difference A Vote Against Judicial Elections The Fight Against Terrorism: One Step Forward, Two Steps Back Justice Cabaret: Life in Law Unveiling of Women Justices of the Supreme Court of Victoria Criminal Bar Association Dinner The Bar Care Scheme Reserve at the Victorian Wine Precinct The Basil Fawlty in All of Us Odd Connections Lush Family Gift hot book titles from the UK Visit www.lexisnexis.com.au/ukbooksale to take advantage of discounted purchase prices on selected UK books, saving you up to 15%, until 30 November 2003. Don’t miss out on this hot offer! CONTACT US Customer Relations Phone: 1800 100 161 Fax: 1800 800 122 Email: [email protected] Web: www.lexisnexis.com.au

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© 2003 Reed International Book Australia Pty Ltd trading as LexisNexis. LexisNexis and the knowledge Burst logo are trademarks of Reed Elsevier Properties Inc., and used under license. ABN 70 001 002 357 VICTORIAN BAR NEWS No. 126 SPRING 2003

Contents EDITORS’ BACKSHEET 5 The Rights of Spring CHAIRMAN’S CUPBOARD 7 Looking Back on a Year of Achievements ATTORNEY-GENERAL’S COLUMN 11 Making Courts More Accessible to the Working Public … and Practitioners Welcome: Pamela Farewell: Justice Farewell: Judge WELCOME Tate. Balmford. Crossley. 13 Solicitor-General: Pamela Tate FAREWELLS 15 Justice Balmford 16 Judge Crossley BAR COUNCIL MEMBERSHIP 18 The 2003/2004 Victorian Bar Council ARTICLES 20 Women and the Law: Promoting Difference 24 A Vote Against Judicial Elections 29 Living Legends of the Bar 38 The Fight Against Terrorism: One Step Forward, Two Steps Back NEWS AND VIEWS 42 Justice Cabaret: Life in Law 47 Unveiling of Women Justices of the Supreme Court of Victoria The 2003/2004 Victorian Bar Council. 49 The Bar Care Scheme 50 Criminal Bar Association Dinner 52 Reserve at the Victorian Wine Precinct 53 Verbatim 54 The Basil Fawlty in All of Us 56 A Bit About Words/Odd Connections 57 Lush Family Gift 57 CONFERENCE UPDATE LAWYER’S BOOKSHELF 58 Books Reviewed

Cover: The Living Legends of the Bar (See report on pages 29–37). Women and the Law: Unveiling of Women Justices of the Supreme Promoting Difference. Court of Victoria.

Justice Cabaret: Life in Law. The Basil Fawlty in Criminal Bar Association Dinner. All of Us.

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2003/2004 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee W *Brett QC, R.A. (Chairman) W Brett QC, R.A. B *Ray QC, W.R. (Senior Vice-Chairman) Charitable and Sporting Donations Committee B *McMillan S.C., Ms C.F. (Junior Vice-Chairman) D Riordan P.J. D *Fajgenbaum QC, J.I. Conciliators for Sexual Harassment and Vilifi cation G *Howard QC, A.J. B Curtain QC, D.E. F *Dunn QC, P.A. A *Shand QC, M.W. (Honorary Treasurer) Counsel Committee F *Dreyfus QC, M.A. G Crennan S.C., M.J. G *Crennan S.C., M.J. Equality Before the Law Committee D *Beach S.C., D.F.R. B Millane Ms F. F *Quigley S.C., Ms M.L. (Assistant Honorary Treasurer) Ethics Committee D *Jones. I.R. B McMillan S.C., Ms C.F. D *McLeod, Ms F.M. D *Riordan P.J. Human Rights Committee W *Neal D.J. D Fajgenbaum QC, J.I. R *Doyle, Ms R.M. Legal Assistance Committee D *Duggan, Ms A.E. G Howard QC, Anthony J. D *Gronow M.G.R. Legal Education and Training Committee B *Coombs, Ms D.J. B Ray QC, W.R. L Hannebery, P.J. Past Practising Chairmen’s Committee D *Connor, P.X. G Berkeley QC, H.C. D *Attiwill R.H.M. (Honorary Secretary) D *Moore Ms S.E. (Assistant Honorary Secretary) Professional Indemnity Insurance Committee G *Anderson, Ms K.J.D. (Assistant Honorary Secretary) A Shand QC, M.W. Professional Standards Education Committee Ethics Committee S Willee QC, P.A. B McMillan S.C., Ms C.F. (Chair) Victorian Bar Dispute Resolution Committee H Merralls AM, QC, J.D. S Martin QC, W.J. S Willee QC, P.A. Victorian Bar Theatre Company Steering Committee S Lally QC, W.F. A Derham QC, D.M.B. P Bartfeld QC, M. F Dreyfus QC, M.A. G Lacava S.C., P.G. H Lewis S.C., G.A. F Quigley S.C., Ms M.L. A Macaulay C.C. M Clelland, N.J. F Shiff, Ms P.L. G Judd, Ms K.E. D Riordan P.J.

VICTORIAN BAR NEWS Georgina Schoff, Paul Duggan, Peter Printed by: Impact Printing Editors A. Clarke, Nicola Gobbo, Victoria 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and Lambropoulos, Richard Brear (Editorial Brunswick Vic. 3056 Judy Benson Assistant) and Peter Lithgow (Book This publication may be cited as Reviews) (2003) 126 Vic B.N. Editorial Board Julian Burnside QC David Johns (Photography) Advertising Jack Rush QC Published by The Victorian Bar Inc. Publications Management Pty Ltd Graeme Thompson Owen Dixon Chambers, 38 Essex Road, Surrey Hills, 205 William Street, Melbourne 3000. Victoria 3127 Editorial Consultant Telephone: (03) 9888 5977 David Wilken Registration No. A 0034304 S Facsimile: (03) 9888 5919 Editorial Committee Opinions expressed are not necessarily E-mail: [email protected] John Kaufman QC, Olyvia Nikou S.C., those of the Bar Council or the Bar or of William F. Gillies, Carolyn Sparke, any person other than the author.

4 Editors’ Backsheet The Rights of Spring

N spring an editor’s fancy turns to thoughts of water. Thankfulness that Iwe have had some much needed rain over winter, with the bureau promis- ing even more over the coming months to spruce up our gardens and parks. Gratitude for the miracle of water into wine, though we doubt if that carries with it any exemption from the necessity of tasting fi rsthand the newly released vin- tages nor making regular excursions to Dan Murphy’s. Sheer astonishment, most of all, that very recently a piece of legis- lation has come into force amending the Water Act 1989 with provisions, penalties and offences that would send the produc- tion crew of The Castle into a frenzy of salivation for a sequel. TO EXPLAIN The Water (Irrigation Farm Dams) Act length the intention of the parliament, the property by the Commonwealth from the 2002 was assented to on 2 April 2002 Crown’s rights to water, and the common States or from a person can only be on just but the key provision that sends farmers’ law rights of farmers. He found (at para terms. Property rights are a cornerstone knees to water did not come into force 37) that the farmer had had for many of the law; surely rights to the water on until 1 July 2003. Whereas previously years the right to use rainwater and other your property are also rights which cannot under the Water Act 1989 a farmer could water that occurs or fl ows (otherwise than or should not be taken away without just use the water from rain or existing natu- in a waterway or bore) on land she occu- compensation. Not only is there no com- rally on her land as she saw fi t, section 8 pied, and had had the unqualifi ed right pensation in the Farm Dams Act, there of the Farm Dams Act had the effect of to appropriate for her own use surface is the creation of offences and penalties. requiring a farmer to obtain a licence if water not fl owing in a defi nite or regular The legislature has effectively created a she wished to take and use water from a channel. A landowner’s rights at common status offence, the offence of having water spring, soak or dam on her land for use law extended to rights exercised over on land unusable for commercial purposes other than domestic or stock use. To water, even though it interfered with a without a licence. It is a status offence take the water from these sources for neighbour’s expectations of water fl ow, in much the same way as the detainees prescribed purposes (including irrigation without any liability. But the clear inten- in detention centres are there for being in any shape or form, using water for non- tion of the legislature had been to severely “illegals”, many (most?) having commit- domestic crops, or washing down the fl oor reduce and restrict those rights, and even ted no offence other than the offence of of a dairy) without a licence will make the to deprive the farmer of her rights to rain- being desperate, stateless and homeless, farmer guilty of an offence under section water (para 57). What the legislature had escaping persecution and torture, being 63 of the Act, carrying a penalty of 20 done in one fell swoop was replace pre- a refugee awaiting the processing of their penalty units or imprisonment for three existing common law rights with statutory visa applications. months. Not unnaturally, a farmer would rights (paras 77 and 87) and restrict the No-one would seriously deny that the feel justifi ed in being aggrieved, even rights as described, imposing a corre- crippling drought of recent years and the outraged, at such a proposition. What of sponding regime of licensing, offences resultant water shortages have created a her rights? and penalties. What about compensation need for the State to manage water stor- But the scenario in the preceding para- for loss of a right? age and resources more stringently in its graph is not hypothetical. It is the fact sce- As the producers of The Castle might catchment areas. But licences? offences? nario of a case that came before Justice have scripted as a legal argument, this is penalties? where none existed before? Gillard∗ in the Supreme Court in May and not at all the right “vibe”. We know from A stripping away of rights by sleight of June this year. In the course of his reasons having seen the fi lm that the comic genius hand? Now what will The Castle team for decision His Honour discussed at some of that term lies in its unique encapsula- do with that in the sequel, The Farm? tion of the principles contained in sec- An angry mob of farmers with pitchforks *Ashworth v State of Victoria [2003] VSC 194 tion 51(xxxi) of the Constitution, which storming Spring Street as the Speaker (17 June 2003). provides that compulsory acquisition of strides out onto the steps to soothe them

5 with the promise of repeal of the offending in the job. Author of Fear Drive My Feet, and the Law: Promoting Difference”, Act in the Spring session of parliament? his compelling and unforgettable autobio- delivered at the inaugural Womens’ Sorghum sacks of compensation to boot? graphical account of an 18–20 year old’s Achievement in the Law Awards in May As Darryl Kerrigan would almost certainly experience of the Second World War in this year; marking of the occasion in which say, “You’re dreaming”. New Guinea as a patrol offi cer; director a photographic portrait of fi ve women jus- of Melbourne University Press during a tices of the Supreme Court of Victoria was NEW ESSOIGN TAKES FLIGHT period which published Manning Clark, unveiled, the second in a series of “Images In the last issue of Bar News the reopen- Brenda Niall, Elsie Webster and a small of Women in the Law”; recognition of the ing refurbishment and relaunching of the but signifi cant archive of the best scholar- generous gift donated to the Victorian Bar Essoign Club was prominently featured. ship in Melbourne over a quarter of a cen- by Lady Lush, widow of Sir George, on dis- Bar and Bench appear to have fl ocked in, tury; journalist and writer for the Age and play in the glass cabinet of the Bar Council if a typical day’s morning coffee and lunch Quadrant; wit raconteur and bon vivant; Chamber; and, on a light-hearted and scene alone is any guide. We have heard he will be sorely missed by many of us humorous note, a photographic rendition many members of the Bar freely confess around town. (But not, I suspect, by those of the Women Barrister’s Choir singing “I that they have been more frequently to seeking admission to the Supreme Court am lawyer” (to the tune of “I am woman”, the new Essoign Club in the past two with interesting “disclosures”.) the Helen Reddy 1970s feminist anthem) months than in the previous 20 years. The Have a long, happy and healthy retire- at the Justice Cabaret Life in Law evening team appears to have hit on a winning for- ment. Ancient person, ave atque vale. held last month. These, together with mula, an inviting space and much return some excellent articles by Mr Ashley custom. We hope the trend continues WOMEN WOMEN EVERYWHERE Halphen and Mr Yusef Zaman, to name onwards and ever upwards. … it’s enough to make you think. In this but two other fi ne contributions, we think issue of Bar News you will fi nd: a warm make a bumper spring issue of Bar News. SUPREMO RETIRES welcome to Pamela Tate S.C. on her As the factional warlords might even This September, Peter Ryan, the appointment as Solicitor-General for the concede, you need both wings to fl y. Secretary of the Board of Examiners for State of Victoria; an excellent, informa- Barristers and Solicitors in Victoria turns tive and though-provoking address by Her The Editors 80, and retires in October after 15 years Honour Justice Marilyn Warren, “Women

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6 Chairman’s Cupboard Looking Back on a Year of Achievements

Y first, and very pleasurable Robert also believed in the importance task as the new author of this of Continuing Legal Education, and his Mcolumn is to thank the previous term saw the launch of the Bar CLE Bar Council for its work over the past Program by Chief Justice Michael Black year. I particularly thank those who have in July 2002. left the Council for their notable service Hallmarks of Robert’s Chairmanship to the Bar. Justice Robert Redlich and were his energy, his dedication and com- Chief Judge Michael Rozenes resigned mitment to the independence of the Bar in October and November 2002 respec- and the critical importance of its role in tively following their well deserved and professional regulation, and his ready universally applauded appointments to smile and generosity of spirit. the Bench. Jeanette Richards resigned Jack Rush served on the Bar Council in June 2003 upon moving to Sydney; she for 13 years — 10 years on the Executive had served on the Council for six years, Committee, and 10 months as Chairman. including two years on the Executive His term saw the completion of the fi rst Committee, and before that she was the fl oor renovations and the commencement Honorary Secretary of the Bar for some of work on the 13th, 12th and 11th fl oors years. Jack Rush QC, Richard McGarvie — the fi rst of the three-fl oors-at-a-time and Kim Knights left in September. stage of construction, with the consequen- Richard McGarvie had served for six tial increased strain on available chambers years; Kim Knights for a year. Each one of accommodation. He worked closely with them contributed signifi cantly to the work Bar members affected by the construc- of the Bar Council, and their presence will the fi rst fl oor up, the execution of con- tion work, and with Barristers Chambers be missed. tracts, and the commencement of work on Limited, to assess and alleviate the situ- I congratulate and welcome to the the lifts and the fi rst fl oor. ation, both in relation to the construction Council Iain Jones, Rachel Doyle, Justin Robert believed strongly in the Essoign and the shortage of chambers. Hannebery and Paul Connor — all newly and the importance of the Bar having Jack was a great supporter of elected in the recent September 2003 such a facility in which members could Continuing Legal Education. During his elections. meet and mingle and entertain friends. term three-years’ CLE was introduced as The new Essoign is a very tangible legacy a requirement for those coming to the Bar LAST YEAR’S CHAIRMEN of Robert’s efforts — and, of course, of the in the September 2003 Readers’ Course Last year began with Robert Redlich as work of Tony Howard QC and his Essoign — and, after a survey to enable members Chairman. He resigned in October upon Development Committee. I am delighted to express their views and Jack personally being appointed to the Supreme Court. to see that the Essoign is continuing to meeting with the CLE Committee to dis- Jack Rush succeeded him and served the build on its initial favourable reception, cuss the matter, in June 2003 a unanimous best part of a full year’s term. Each was an and is attracting more and more new resolution of the Bar Council was passsed outstanding Chairman. members — a 60 per cent increase of 350 expressing in-principle support for the During each of their terms as Chairman, members since May. extension of a mandatory CLE require- the Bar Council was engaged in signifi cant ment to all members of the Bar. developments in the ongoing major issues Like Robert Redlich, he also strongly of legal professional regulation, profes- supported equality of opportunity at the sional indemnity insurance, continuing Bar and, in his last couple of weeks as legal education and, of course, the major I congratulate and Chairman, launched the media release renovation of Owen Dixon Chambers welcome to the Council of the Bar Equality Before the Law East, including the Bar’s substantial com- Committee Survey Report on Court and mitment to the new Essoign. Iain Jones, Rachel Doyle, VCAT Appearances by Women Barristers. Robert Redlich served on the Bar Justin Hannebery and Paul Jack Rush was articulate and forth- Council for over eight years, 14 months as Connor — all newly elected right in addressing current issues such Chairman. His term saw the fi nalisation of as the Commonwealth enquiry to review plans for the second stage of the renova- in the recent September the law of negligence; the critical role of tion of Owen Dixon Chambers East from 2003 elections. the Ethics Committee in professional

7 regulation and discipline; and the main- Over the course of Ross Robson’s nine new framework for the regulation of the tenance of professional standards in the years on the Board, the total shareholder legal profession in Victoria announced on face of increasing application of competi- equity has risen from a defi cit of nearly $3 25 July 2003. It is proposed to introduce tion theory to legal regulation. million to a credit of over $31 million. legislation in Autumn 2004 with a view to His personal commitment to the work He has been a strong and decisive implementation in 2005. of the Bar Council was remarkable, and Chairman, and has presided over the The main elements of the new frame- his unvarying good humour and equanim- entire process of planning and imple- work are: ity made his 10-month term seem to the menting the current major renovations of • A Legal Services Board will be respon- rest of us even shorter than it was. Owen Dixon Chambers East — a massive sible for funding, policy and non-disci- On behalf of the Bar, I thank both last and complex undertaking that will benefi t plinary regulation. year’s Chairmen for their outstanding the Bar for succeeding generations. • A Legal Services Commissioner will be work. Having been in the position myself Other projects have included the estab- the Board’s CEO, and will be the single now for just over two weeks, I appreciate lishment of a new set of chambers — Joan point of entry for all complaints against more than ever just how much the Bar Rosanove Chambers; the negotiation of lawyers. owes them. an extension of BCL’s lease over Latham • The Commissioner may delegate the Chambers; and the establishment of the investigation and prosecution of com- RETIRING CHAIRMAN OF BCL AND Bar Internet system. plaints to the Bar and Law Institute, BAR FUND Ross has served the Bar Superannuation and has power to review any such Ross Robson, QC, has retired from Fund for some 23 years, fi rst as a Trustee, investigation. the Boards of Directors of Barristers then as a Director of Barfund Pty Ltd. He • Other regulatory functions may also be Chambers Limited and Barfund Pty has been Chairman of Barfund for the last delegated to the professional associa- Ltd (the trustee of the Victorian Bar seven years. tions. Superannuation Fund). Over the course of his association with • VCAT will hear all prosecutions and Ross has been a Director of Barristers the Fund it has grown from about $1.5 civil disputes between clients and law- Chambers Limited for nine years and million to about $90 million. Signifi cant yers in a separate Legal Practice List Chairman for the last fi ve years. His clear initiatives during his Chairmanship have to operate largely in the manner of the appreciation of the priorities of BCL and included the appointment of a new current Legal Professional Tribunal. of the fi nancial exigencies under which it administrator and an investment adviser, • The Legal Services Board is to have operates has guided the Board through a a change in the structure of the fund to seven members: a Chair appointed number of major initiatives. a unitised fund, the establishment of an by the Attorney General; three non- He introduced and implemented major allocated pension division, the offering of practising members appointed by the organisational changes in the appoint- investment choices, and the creation of Attorney after consultation with stake- ment of a Chief Executive Offi cer and an ability of members to access informa- holders; and three practitioners com- the establishment of BCL offi ces separate tion on investments through a secure link prising two solicitors and 1 barrister, to from those of the Bar Administration. He through the Bar Website. be elected by the professional bodies. also put fi nancial dealings between BCL On behalf of the Bar I thank Ross • The Legal Services Board is to have the and the Victoria Bar Inc. on a formal and Robson for his extraordinary and dedi- power to issue practising certifi cates, sound footing. cated service to Barristers Chambers but also the power to delegate that The re-organisation of BCL fi nances Limited and to the Victorian Bar function to the profession associations, included the realisation of the Company’s Superannuation Fund. subject to the professional associations investment in a vacant block of land in meeting performance targets in that Little Bourke Street. This involved com- LEGAL PRACTICE ACT REVIEW respect. plicated steps to remove easements and In September 2003 the Attorney-General • In order to facilitate the establish- covenants, and to obtain a permit for the established an Implementation Group to ment of the new system, and the erection of a car park in order to realise work with the Department of Justice in transition, the initial appointment of the value of the site. developing legislation to implement the a Legal Services Commissioner, once

8 the legislation is passed, will be by the affordable to new barristers coming out That infl exible and uniform adherence to Attorney-General. Thereafter, succes- of the Readers’ Course. The Chambers the rights of the Constitution, and of indi- sive Commissioners will be appointed Sharing Rules have been relaxed to allevi- viduals, which we perceive to be indispen- by the Board. ate the situation, and a number of barris- sable in the courts of justice, can certainly The Bar sees the delegation of the ters are now sharing chambers. not be expected from judges who hold their investigation and prosecution of com- A survey of all counsel of less than 3 offi ces by a temporary commission. Peri- plaints, and of the issuing of practising years call has been carried out to ascer- odical appointments, however regulated, certifi cates, as key components in the tain the current situation, needs, and or by whomsoever made, would, in some scheme, and welcomes the opportunity of responses to possible options in relation way or other, be fatal to their necessary working with offi cers of the Department to accommodation by reference to ranges independence. If the power of making them of Justice as part of the Implementation of rental cost and to sharing. was committed either to the Executive Group in developing the legislative frame- The survey has only just been com- or legislature, there would be danger of work. pleted, and a full analysis of the results an improper complaisance to the branch which possessed it; if to both, there will be NATIONAL LEGAL PROFESSIONAL an unwillingness to hazard the displeasure REGULATION PROJECT OF SCAG of either. Since 2002 the Law Council of Australia and its constituent bodies, including the The Bar has, over the Referring to a statement in April Victoria Bar, have been working with years, consistently 1997 by the Chief Justices of the States offi cers of the Standing Committee of opposed the appointment and Territories on the threat to judicial Attorneys General (invariably referred independence posed by the appoint- to, unfortunately, as “SCAG”), on a model of acting judges as ment of acting judges, Chief Justice Sir bill aimed at achieving harmonisation of tending to undermine the Gerard Brennan wrote in The State of legal professional regulation throughout fundamental principle of the Judicature (1998) 72 ALJ 33 at 34: Australia in order to facilitate national “Judicial independence is at risk when practice. judicial independence. future appointment or security of tenure The model bill is unlikely to have any is within the gift of the executive.” effect on the regulatory framework pro- and of possible strategies to accommodate The 10 April 1997 statement of the posed for Victoria as described above. the identifi ed needs is a matter of priority eight Chief Justices of the States and While it will establish detailed core pro- for the Bar Council. Territories adopted the following prin- visions in relation to national practice ciples relating to the appointment of (such as, for example, in relation to trust ACTING JUDGES judges of the Courts of the States and account regulation), the non-core provi- There has recently been discussion in the Territories: sions (such as in relation to the admission press about the possibility of appoint- 1. Persons appointed as Judges of those of local legal practitioners) will provide ing short-term acting judges. The Age Courts should be duly appointed to only the basic principles, leaving each has expressed editorial support for such judicial offi ce with security of tenure State to determine its own particular appointments. until the statutory age of retirement arrangements. The Bar has, over the years, consist- … On 20 September 2003, the Directors ently opposed the appointment of acting 2. The appointment of an acting judge to of the Law Council of Australia completed judges as tending to undermine the fun- avoid meeting a need for a permanent another review of the draft model bill. damental principle of judicial independ- appointment is objectionable in princi- SCAG is expected to fi nalise a draft for ence. ple. public discussion later this year, and the Such proposals are not new. On 18 3. The holder of a judicial offi ce should outcome of this process will also be taken August 1967 the Bar Council published not, during the term of that offi ce, into account in developing the proposed a statement in response to a proposal be dependent upon the Executive Victorian legislation. by the then Attorney-General to appoint Government for the continuance of Commissioners who would exercise the the right to exercise that judicial offi ce PROGRESS OF RENOVATIONS TO powers of a judge in order to clear conges- or any particular jurisdiction or power OWEN DIXON EAST tion in the Supreme Court jury lists. That associated with that offi ce The 13th, 12th and 11th fl oors of Owen statement laid out the Bar’s principled Justice Michael Kirby spoke forcefully Dixon East — all chambers — are opposition and included an historical out- against the appointment of acting judges expected to be fully operational by about line of the development of the independ- in an address in September 1998: “Acting the middle of October. Work will soon ence of the judiciary and its signifi cance. Judges — a Non-Theoretical Danger”, begin on the next three fl oors. The Bar In that statement, the Bar referred to referring not only to the principle of Council continues to work with BCL on the development of judicial independence judicial independence, but to practical the shortage of accommodation necessar- in England, in the United States, and in concerns — such as, not merely actual ily involved in the renovation project. Australia. It quoted Alexander Hamilton bias, but the appearance or reasonable from the Federalist papers (in connec- apprehension of bias — a matter which, as ACCOMMODATION SURVEY — tion with the ratifi cation of the United Justice Kirby points out, of its very nature, SEPTEMBER 2003 States Constitution more than two cen- cannot be proved empirically because it The Bar Council and BCL are concerned turies ago) in which he dealt specifi cally rests on appearances and inferences. about the current shortage of accom- with temporary appointments and warned If a barrister would love to be a perma- modation, particularly of accommodation strongly against them: nent judge, may he or she not be tempted

9 (or appear to be tempted) to avoid a ing Supreme Court judges are all former risters are disproportionately underrepre- decision that might upset the appointing judges. Two-thirds of the present acting sented in court, particularly in more senior government? If a solicitor generally acts District Court judges are former judicial work. The Bar Council is working with the for insurance companies (or workers), offi cers; one-third are non-practising legal Law Institute and with the clerks to do might he or she not be tempted (or appear academics. Justice Kirby’s speech was in what it can to promote the adoption and to be tempted) to avoid making decisions 1998, when the New South Wales District implementation of the Equal Opportunity that could upset actual or potential cli- Court had some 50 acting judges, most of Model Briefi ng Policy practices. ents, their law partners or their interests? whom were practising barristers or solici- With sections of the media baying for law tors. That situation, was condemned by LCA: ROSS RAY ELECTED TO and order and stiffer penalties, might an judges and the profession. The 1998 New EXECUTIVE; BOB GOTTERSON QC appointee hoping for a permanent seat on South Wales Bar Association’s President’s PRESIDENT the Bench not be infl uenced by the need Report said of it: “Most thinking lawyers Ross Ray QC has been the Victorian Bar to avoid an unpopular sentencing or bail see it as a scandal.” representative on the Law Council of decision, however merited it might seem The Attorney-General is reported as Australia (now that LCA is incorporated, on the evidence or argument? These are linking acting judges with the appoint- our Director) for the last three years. not really theoretical questions. Every ment of women, asserting that the At the LCA Directors’ Meeting on 20 informed member of the legal profession appointment of short-term acting judges September, Ross was elected to the six- knows of stories that are circulating. would “advance female representation member Executive — a pleasing vote of His Honour concluded with the memo- on the Bench” and that “a wider pool of confi dence, in that Law Society (as well rable statement: acting judges would be good . . . for the as Bar Association) votes were needed for advancement of women lawyers, who are him to be elected. Do not pretend to citizens that busy part- rare in reserve judge ranks”: The Age 8 Also on 20 September, Bob Gotterson time practitioners, scurrying back to their September 2003. QC, a former President of both the offi ces and chambers, are true judges. They The Attorney-General has an exem- Queensland Bar Association and the are not. And they should not be held out as plary record of appointing well-qualifi ed Australian Bar Association, became such. women to judicial offi ce, and in advancing President of the LCA, succeeding Ron the cause of women in the profession by, Heinrich of the New South Wales Law The Attorney-General is reported to be for example, adoption of the Bar’s Equal Society. Stephen Southwood QC, Vice “looking at a range of models, including President of the Northern Territory Bar the British recorder system, which allows Association became President Elect. barristers to be appointed as short-term judges”: The Age 8 September 2003. The The appointment of a THE YEAR AHEAD 10 September Age editorial also fastens short-term acting judge is I count myself fortunate to have inherited on “a system of ‘recorders’ or short-term made no less offensive to from my predecessors an experienced judges”. and congenial Bar Council, many of whose It is often pointed out that many other the fundamental principle members have served on the Council for jurisdictions have acting judges. The Age of judicial independence some years. I have a formidable team in editorial mentions England and New by virtue of the appointee Ross Ray QC, Kate McMillan S.C. (Vice South Wales. There are at least two fl aws Chairmen). (At the time of writing, the in this argument. being a woman. positions of Honorary Treasurer and First, it needs to be made clear that Assistant Honorary Treasurer have not the English Recorder system is not one Opportunity Model Briefi ng Policy. The been permanently fi lled.) Richard Attiwill of acting judges. Recorders are appointed Attorney launched the Women Barristers has kindly agreed to remain Honorary permanently, not temporarily. They are Association internet-based directory of Secretary for the time being, and Sharon appointed to undertake part-time duties women barristers. He gave the address at Moore and Kate Anderson are both rather than full-time. They are required to the Women Barristers Association dinner Assistant Honorary Secretaries. I look sit judicially for at least 15 and not more in 2001. And he unveiled the fi rst Images forward to working with them all. It is than 30 days a year. They have security of Women in the Law photographic por- diffi cult to predict at this stage what the of tenure from initial appointment. Initial trait of Justice Sally Brown. However, the big problems will be; but there is no doubt appointment “is for a (renewable) period appointment of a short-term acting judge that there will be plenty. There always of fi ve years”, and “appointments will be is made no less offensive to the funda- are. automatically extended for successive mental principle of judicial independ- terms of fi ve years, subject to the indi- ence by virtue of the appointee being a Robin Brett QC vidual’s agreement and the upper age woman. Chairman limit [65], unless a question of cause for non-renewal is raised or the individual no EQUALITY OF OPPORTUNITY FOR longer satisfi es the conditions or qualifi ca- WOMEN AT THE VICTORIAN BAR tions for appointment”. Members will have seen the newspaper Second, the Victorian Attorney-General reports of the 21 August 2003 release is apparently considering the appointment of the Bar Equality Before the Law of practising barristers and solicitors. Committee Survey Report of Appearances Since about 1999 or 2000, New South by Women before the Courts and Wales has not done that. The present act- VCAT. The report shows that women bar-

10 Attorney-General’s Column Making Courts More Accessible to the Working Public … and Practitioners

ALANCING the scales of justice is on the traditional model of constant avail- not the only juggling act facing 21st ability. In my view, we must explore ways Bcentury legal practitioners. While to reward practitioners who have been some consider an equilibrium between out of the workforce for a period of time, their professional and personal pursuits or who are participating on a part-time or to be a luxury they can’t afford, or even fl exible basis. Of course, there are already the property of the unambitious, work/life a number of barristers carving a role for balance is vital for a number of reasons. themselves in advice and lecturing work, Firstly, it is important to us as human or in part-time hours. But in general beings, and as properly functioning prac- the odds remain stacked against them. titioners. Our health and our families are Overheads, including thousands of dollars not the only ones who suffer from our in Chambers fees, don’t diminish simply overextended work ethic. The legal forum because a practice is part-time, and the benefi ts from participants with a broader culture of the Bar that demands constant perspective, and clients benefi t from visibility does not sit well with parents representation by a profession whose who want to get home to their kids. values, experience and backgrounds bet- Flexibility is all very well in other pro- ter refl ect their own. However, striking a fessions, some practitioners say, but the work/life balance in the legal profession is law is different. The law, they argue, is also crucial if we want the profession to immutable; the pursuit of justice relent- attract and retain the best and the bright- less! In my view, this is nonsense. The est practitioners, if we want to ensure that additional fl exibility to participate in long law is not above the responsibilities of women are able to participate at the high- court days without having to leave in time ordinary people, and within its traditional est levels of the law. to collect children at an external loca- confi nes has demonstrated ample fl exibil- This simple fact is not because we tion. But simply entrenching the onerous ity where this has suited its male protago- need to make exceptions for women, or to demands of court life is not the only solu- nists. After all, why does our legal system accommodate them. This is not because tion. Parents are not necessarily looking accept long summer and winter breaks, women can’t “hack the pace” or aren’t as for more childcare options. Many of them long service leave and sabbaticals; but committed to the job as others who seem are looking for more time to spend with baulks at part-time work? We must stop able to dedicate 16 hours of every day to their children, without incurring the deri- thinking of the legal system in fi xed and paid employment. It is simply because sion of their colleagues in doing so. rigid terms around which we squeeze our women have the physical capacity to bear In my view, we should not continue to family obligations and stop assuming that and nourish children, and because, in our base professional acknowledgment solely the only way we can participate at the Bar society, women still seem to carry the is full-time. lion’s share of rearing children and caring Some of you may be aware that I am for other family members. Consequently, an advocate for fl exible court sitting hours any profession hoping that women will While the number of and have raised the possibility of early remain in and rise through its ranks must morning, night, and weekend court sit- change the way that it approaches this women at the Victorian Bar tings with the Bar, the Law Institute and issue. has risen slightly to 18.6 the Chief Magistrate. Obviously, these pro- Of course, all of us are aware of the per cent, they are getting posals are designed to make courts more challenges facing women at the Bar, and accessible to the working public, and to they have not escaped the notice of the relatively fewer briefs reduce delays. However, there is no rea- highest judicial offi ce in the land, Chief than they were fi ve years son why proposals such as these cannot Justice Gleeson recently suggesting that ago, being involved in only be used to enhance the fl exibility of prac- courts consider establishing childcare titioners. I’m told that some US jurisdic- facilities. Childcare is certainly important, 13.79 per cent of court tions are exploring part-day hearings. We and a Court facility may give parents appearances last year. should not assume that this cannot work 11 here, and I have asked my Department slightly to 18.6 per cent, they are getting owe it to the Victorian community, not to to make inquiries about similar schemes relatively fewer briefs than they were fi ve fritter this investment and to the law to applying in Victorian jurisdictions. years ago, being involved in only 13.79 per ensure that it benefi ts from the experi- I am also examining a greater fl exibility cent of court appearances last year. It is ence of the best and the brightest that the in the use of reserve judges. Currently clear that private fi rms are redirecting profession has to offer. conventions regarding reserve judges dic- work away from women barristers and We must not assume that professional tate that only retired judges, and there- equally clear that the fi gures would be dedication equals long hours. We must not fore by natural attrition, almost invariably even more worrying if it weren’t for pro- apply that insidious and quiet discrimina- men, can serve as reserve judges. To my gressive briefi ng practices in the public tion that questions the “commitment” mind, the role of reserve judges offers an sector. of practitioners who do not attempt to unparalleled opportunity for senior prac- As Minister for WorkCover and TAC, I disguise or apologise for their family or titioners to gain experience on the Bench, have asked the TAC and VWA Boards to their community activities. Quality, not opportunities which would, by virtue of promote equality in their respective brief- quantity, should be our benchmark. and their occasional nature, have a particular ing practices. I am optimistic that a formal constant visibility should not be a pre- appeal to senior practitioners looking for approach will result in real progress. As requisite for those practitioners who want fl exibility. Attorney-General I will also continue lob- to get ahead. Of course, fl exibility is not the only bying my Federal counterpart to adopt a I urge the Bar, and the profession as hurdle with which women are confronted similar policy at the Commonwealth level. a whole, to apply the same rigour and at the Bar. To its credit, the Victorian No doubt to the embarrassment of Daryl creativity to resolving these issues that Bar has highlighted the reluctance of Williams, any plans he may have had in this it applies to its practice. The objectivity solicitors to brief qualifi ed women and regard have been trumped by Assistant of the law should not translate to the established an iconic briefi ng policy in Treasurer Helen Coonan, who recently perception of those who practice it as response. This policy was supported by announced her intentions to introduce an automatons. Acknowledging our human the Victorian Government in the context equal opportunity briefi ng policy into her obligations can only enhance, not dimin- of its contractual requirements of private areas of responsibility. However, we must ish, our professional capabilities; and cul- fi rms engaged to provide legal services to all continue to challenge the entrenched tural change that recognises this human Government. and discriminatory attitudes that direct side, the family and community life of However, a recent survey of briefi ng clients and practitioners towards the practitioners, will benefi t us all. practices indicates that the situation same counsel, time and time again. is getting worse. While the number of Women are now investing in their edu- Rob Hulls women at the Victorian Bar has risen cation at the highest levels in history. We Attorney-General

12 Welcome Solicitor-General Pamela Tate

N 24 May 2003 Pamela Mary Tate in Boral Besser Masonry Limited v gave the Junior Silk speech at the Australian Competition and Consumer OVictorian Bar Dinner. As Junior Commission, a case involving misuse Silk her “ranking” (to use a tennis term) of market power with Neil Young, David was 196. Forty-fi ve days later she was Shavin and Michael Crennan. appointed Solicitor-General and was The likelihood, however, is that it is ranked number one at the Victorian Bar. not her performance as evidenced in any Pamela Tate came relatively late to the of these cases which caused her to be law and her progress through the ranks, appointed as Solicitor-General. In 1999 although not always so meteoric, has been she appeared with Douglas Graham in fast. Department of Premier and Cabinet v She obtained a BA Honours from the Hulls in which the Court of Appeal held University of Otago in 1979; then went that the Victorian Civil and Administrative to Oxford where she obtained a B.Phil Tribunal had erred in exercising its discre- in 1981. She lectured and tutored in tion to grant the (now) Attorney-General the Department of Philosophy at the access to documents on the ground that University of Otago and at Monash before the public interest required it. obtaining an LLB Honours from Monash It is no doubt his experience in that in 1988. She served articles with Michael case that persuaded the Attorney, on Salter at Phillips Fox and was admitted on jurors, was held to infringe the Juries the principle that “if you can’t lick’em 30 March 1989. From August 1989 to July Act. Of peripheral relevance, per- you join’em (or recruit’em)”, to make the 1991 she was associate to Justice Dawson haps, is that the drug smugglers were present appointment. of the High Court and signed the Roll detected by reason of the fact that they Pamela Tate, in the 12 years she has of Counsel (No. 2675) on 28 November entered the country as a group of some been at the Bar, has shown that, despite 1991. ten Japanese tourists, but had only one the commitments of a mother to a young She read with John Middleton and in camera between them. It was obvious son, and despite, or perhaps because of, the years that followed she appeared in to even the least alert customs offi cer her late conversion from philosophy to a number of signifi cant cases, many of that these were not the tourists they law, she is a force to be reckoned with. them as junior to her predecessor in title, purported to be. Those who attended the Bar Dinner or Douglas Graham. Amongst her appear- • Egan v Willis, a case involving analysis read her Junior Silk speech in Bar News ances with Doug Graham in the High by the High Court of the power of the will be well aware that under a serious Court are included: NSW Legislative Council to deal with demeanour there exists a keen sense • Kable v DPP where the High Court contempt of that House. of humour. She will be remembered for held that legislation that detracts from • The State of Victoria v The Common- adding the word “juniored” to the English independence of courts which are wealth (Matter No. M46 of 1994) language. charged with the exercise of federal which involved a challenge to many The intellectual capacity of our new judicial power (whether or not they be of the provisions of the Industrial Solicitor-General is evidenced by her created by State legislation) or which Relations Act 1988 (Cth). career path. Her capacity for hard work has the appearance of so interfering • Residual Assco Group Limited v and commitment can be seen not only may well offend against Chapter III of Spalvins and Re Macks; Ex parte from her career to date, but also from the the Commonwealth Constitution. Saint, cases dealing with cross-vesting signifi cant work she has done as a member • Katsuno v R, a case involving a big of the corporations power. of the Women Barristers Association. “drug bust” in which the practice of She also appeared in Patrick We wish Pamela Tate well in her new providing to the Chief Commissioner Stevedores Operations (No. 2) Pty Ltd role in which she follows in the footsteps of Police, in advance of the trial, details v Maritime Union of Australia, ini- of Henry Winneke, Tony Murray, Daryl of convictions and other information tially with Neil Young and subsequently Dawson, Hartog Berkeley and Douglas relating to persons summoned as with Jim Merralls and Jack Fagenbaum; Graham.

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Develop your professional knowledge and further your expertise through postgraduate study. The Melbourne Law School offers diversity, quality and the opportunity to specialise in one of 20 areas of law, in addition to our LLM and research programs. Features of the Program in 2004 include: • more than 120 subjects; • expert tuition by international and Australian experts; • a blend of practical and academic expertise; • more than 80% of subjects taught intensively over one week; • stimulating contacts within a varied student cohort; and • dedicated graduate teaching facilities. Three New Courses in 2004 • Graduate Diploma in Managing Legal Organisations • Graduate Diploma in Human Rights Law • Master of Law and Development Graduate law Applications for 2004 close 5 December 2003. Further information: melbourne http://graduate.unimelblaw.com.au @ Email: [email protected] in 2004 Tel: (03) 8344 6190 CRICOS Provider Code: 00116K. M53540 Farewells Supreme Court Justice Balmford

legal education in this State, particularly Bar Readers’ Course, giving the perspec- post-graduate practical training. tive of a tribunal member on the conduct Her Honour was a prime initiator in the of AAT proceedings. establishment of the Leo Cussen Institute In June 1993, Her Honour was where Her Honour was responsible for appointed as a Judge of the County everything: planning, policy, budgeting, Court. Three years later, in March 1996, premises, staff and programs. Her Honour was appointed a Justice of The courses created by Her Honour in the Supreme Court. Her Honour has the early 70s were all independent practi- sat in every area of the Court’s jurisdic- cal legal education for the profession and tion: crime, common law, commercial have been said to be the best, not only in and equity, and the Court of Appeal. Australia, but in the common law world. Her Honour has also presided over the Her Honour has played a major role in Valuation Compensation and Planning developing, for the fi rst time in Australia, List. Her Honour has had a number of a national perspective on legal education. diffi cult and important planning and While at the Leo Cussen Institute Her valuation cases, including Curry v Melton Honour was a member of the 1975 pre- Shire (a key decision on development mier’s committee on the status of women. contributions), the Niddrie Quarry The recommendations of that committee case (raising complex administrative law were largely incorporated in the Equal issues) and the Mount Hotham Airport Opportunity Act 1977, which established case (a diffi cult valuation case). the Equal Opportunity Board. Her Honour In crime, Her Honour presided over the N 12 September 2003 friends, fam- was appointed a temporary member of long, Douglas Reid/Southern Cross Airline ily and members of the legal profes- the Equal Opportunity Board and heard trial — one of the early trials in which Osion gathered at the Supreme Court the complaint of pilot Deborah Wardley documents were projected on computer to farewell Justice Rosemary Balmford. against Ansett Industries, which in many screens. Her Honour has enjoyed a distin- respects was a pioneering case. In her spare time Her Honour has guished career in the law. She was the fi rst From 1978 to 1983 Her Honour was found time to write and publish, in addi- woman appointed to the rank of lecturer assistant solicitor (special projects) at the tion to books on birds, a monograph on in the Faculty of Law at the University of University of Melbourne. Following this Australian linguistic expressions derived Melbourne. That is the more signifi cant she was appointed a Senior Member of from Australian natural history. The title because it was the end of 1963 and only the Administrative Appeals Tribunal. The of the monograph is Miserable as an three years after Her Honour had com- Melbourne-based senior members of the Orphan Bandicoot on a Burnt Ridge. pleted her law course. In 1958 Her Honour AAT, in the 10 years that Her Honour was Her Honour has also written a scholarly became resident tutor at Janet Clarke Hall. on the tribunal, led Australia in develop- book entitled Learning about Australian At the same time Her Honour was working ing constructive approaches to the com- Birds. as a solicitor at Whiting and Byrne. plex and almost intractable legal problems In 1998 Monash University awarded In 1960, less than four years after thrown up by the drafting and administra- Her Honour the degree Doctor of Laws, admission, Her Honour became a part- tion of the Social Security Act. Honoris Causa, the highest honour the ner at Whiting and Byrne (now Corrs Her Honour’s decision in Re W and university can bestow. Chambers Westgarth) at a time when few the Director General of Social Security Justice Balmford is now retiring after major city fi rms had a woman partner. pointed to the inequity of the exclusion a long and distinguished career. The In 1971, during Her Honour’s full-time from benefi ts of a single woman who had Victorian Bar wishes her a fulfi lling retire- fi nal year of study for the MBA degree, she adopted a retarded child. It led to the ment. was appointed executive director of the amendment of the Act. Continuing Legal Education Board. Her Our Bar is particularly indebted to Her Honour has made a major contribution to Honour for having regularly taught in the

15 County Court Judge Crossley

trial relations and crime. He appeared for from His Honour’s expertise and taste on the Commonwealth in the National Wage the wine cupboard committee. His Honour Cases and industrial disputes. He also assisted in the Centenary Bar Committee appeared in constitutional cases involv- in 1984 and created the famous Dancing ing the freedom of interstate trade. His Barristers cartoon which is now the logo Honour had a general common law prac- of the new Essoign Club. tice including personal injury work. He For many years His Honour’s artistic was junior counsel to Peter O’Callaghan skills provided cartoons which enlivened QC assisting the Builders Labourers the pages of the Bar News. A favourite Federation Royal Commission. cartoon depicted a jury foreman wearing His Honour’s fi rst reader was Robert a black eye announcing, “We are all agreed Osborn, now the Honourable Justice upon our verdict, Your Honour” … A sig- Osborn. Justice Osborn speaks of the nature calling card from His Honour was breadth of His Honour’s practice and of a cartoon of a cat walking away from the the value in his reading. His Honour’s sec- reader with its tail held high, exposing its ond reader was Ross Middleton. Middleton rear end — and with a sign on its tail “The describes his fi rst day as a reader. He fol- end is nigh”. lowed his Master to the Commonwealth His Honour has always been a keen Compensation Tribunal where His Honour yachtsman. He never misses the Bar’s was then the leading practitioner. The annual Wig & Gowns Squadron Regatta. case settled. His Honour took Middleton His Honour’s yachting career began at IS Honour graduated from to a very pleasant lunch. Middleton main- the Royal Brighton Yacht Club where he Melbourne University Law School tains he learned more at the long lunch was Captain of cadet dinghies. In 1958 His Hand then served articles with than at the Readers’ Course. Many would Honour represented Victoria in his 12-foot Mr Vere Johnstone of Rigby & Fielding, believe him. His Honour had another six cadet dinghy named Black Adder in the Solicitors. After articles His Honour went readers: Ross Maxted, Jennifer Drake, Stonevan Cup sailing from the Royal Perth to London and on returning to Australia Murray Preston, Frederick Casley, John Yacht Club. His Honour shares the honour was called to the Bar. He read with Van Dugdale and David Findlay. of representing Victoria in that event with Tolhurst, later Judge Tolhurst of the His Honour served on a number of Bar his friend and colleague Judge Bill White, County Court. committees — Railway Damage, Juries who represented Victorian in Hobart the As a barrister His Honour had a broad Practice, and Police and Lawyers. For following year. His Honour’s vocal abilities and varied practice in common law, indus- nearly 10 years the Bar’s cellars benefi ted in the Clubhouse are matters of legend.

16 There His Honour could be relied upon, à ment of the Court of Criminal Appeal, la David Boon, to lead the raucous chorus [1995] 1 VR 95, extends over 93 pages. All beefi ng out “Free beers for all the dinghy applications for leave to appeal were dis- boys”, a ditty adapted without permis- missed; one ground of appeal by reference TAILORING sion from the great working class anthem to Magna Carta, no less, and another to Sir “Free beers for all the wharfi es”. Edward Coke’ Institutes of 1628! Suits tailored to measure During his judicial career His Honour His Honour has been an outstanding presided over one of the most highly Judge of the County Court, and the com- Alterations and invisible publicised trials in the County Court in munity has benefi ted greatly from his mending recent years — the exorcist manslaughter wide experience and talents. Outstanding case of Vollmer & Others. Charles Francis Judges do not just “happen”. Judge Quality off-rack suits QC appearing for one of the four accused, Crossley’s breadth of experience as a Repairs to legal robes invited His Honour to grant a perpetual barrister, wide interests outside the law, stay on the basis that the case was too his humanity and concern for others and Bar jackets made to order complex to try. His Honour’s response was above all his legal acumen and prepared- that judicial cowardice was not a proper ness for hard work have ensured his suc- basis for such an order! cess as a Judge of the County Court. The Vollmer case was heard over 45 The Victorian Bar wishes His Honour a sitting days at Horsham and attracted contented and fulfi lling retirement. LES LEES TAILORS publicity world-wide. The reported judg- Shop 8, 121 William Street, Melbourne, Vic 3000 Tel: 9629 2249 Frankston Tel: 9783 5372

17 Bar Council Membership

The 2003/2004 Victorian Bar

Seated Front Row (left to right): Ross Ray QC Seated Second Row (left to right): Michael Shand QC (Senior Vice-Chairman) Michael Crennan S.C. (Honorary Treasurer) Anthony Howard QC Debra Coombs Kate McMillan S.C. Mark Dreyfus QC Rachel Doyle (Junior Vice-Chairman) Jacob Fajgenbaum QC Robin Brett QC Sharon Moore (Chairman) (Assistant Honorary Secretary)

18 Council

Richard Attiwill Fiona McLeod Absent: (Honorary Secretary) David Beach S.C. Philip Dunn QC Iain Jones Anne Duggan Peter Riordan David Neal Kate Anderson Standing at Rear (left to right): Michael Gronow (Assistant Honorary Secretary) Michelle Quigley S.C. Paul Connor (Assistant Honorary Treasurer) Justin Hannebery

19 Articles Women and the Law: Promoting Difference Edited version of an address by the Honourable Justice Marilyn Warren, Supreme Court of Victoria, to the Victorian Women Lawyer Achievement Awards Presentation Dinner, Parliament House, Victoria on 15 May 2003

T the recent 13th Commonwealth Tri-Continental — a tremendous fi rst for Law Conference I was privileged women. These changes were continued A to join a panel of speakers led by and perpetuated later by the Honourable the Women Barristers Association and the Jan Wade, Victoria’s fi rst woman Victorian Women Lawyers on the topic Attorney-General through the appoint- of “Women and the Law”. A number of ment of women to the Bench, including eminent speakers participated. At the the appointment of Victoria’s fi rst woman completion of each speaker’s contribution Supreme Court judge, the Honourable three eminent panellists were invited to Justice Rosemary Balmford. Change has respond. continued to be effected by the present My topic was “Promoting Difference”. Attorney-General, the Honourable Rob I had a number of remarks to make. Hulls, MP with an affi rmative action pro- Unfortunately, due to time constraints gram in the appointment of women as I was able only to say a lot less than I judges and magistrates and the govern- originally intended. Nevertheless, I made ment briefi ng policy. my remarks essentially from a platform of Between 1975 and 1985 I worked as positivism rather than negativism. I will a solicitor within the government sector. return to that theme shortly. Predominantly, the offi cers were male In my almost 30 years in the law I have but there were women located in key seen dramatic change. Back in 1974 as positions: Rowena Armstrong QC and Jan an articled clerk I remember attending Honourable Justice Marilyn Warren. Wade, both then assistant chief parliamen- one day to instruct in the old 14th Court, tary counsel. Eventually, Elizabeth Proust then the Practice Court of the Supreme change followed measures initiated by was appointed Secretary of the then Law Court. It was an intimidating sea of men the Hamer Government in the late sev- Department. The change was continuing. in dark suits. At one point the sea opened enties, including the enactment of the Women were taking their place in senior and a person gracefully sailed past, robed, Equal Opportunity Act 1977 and the positions in the public service. through the crowded foyer outside the appointment of an advisor to the Premier In 1985 I went to the Bar. I moved from 14th Court. It was a woman barrister. I on women’s affairs, Yolanda Klempfner. an environment where women were not had never seen one before. I enquired of The Equal Opportunity Act was amended. unusual and their work was respected my principal as to who she was. He said Membership of the Melbourne Cricket and admired. I was struck immediately with much warmth and admiration, “Oh Club and the Victoria Racing Club were by the prevailing masculine culture of that’s Molly Kingston.” Nowadays there opened up to women. These types of the Bar. Nonetheless, I immersed myself are many women barristers, robed, seen changes were important because they in performing my work to the best of on the streets and in the foyers and in extended change in the prevailing culture. my ability and working very very hard. I the courts. They are not an unusual sight. It permeated through our local society. believed that that was the way to succeed. Such a change. There are now signifi cant It was embraced by the subsequent Around that time in the late 80s there numbers of women on the other side, that Attorney-General, the Honourable James were a number of silks who consciously is the Bench, also robed looking out at that Kennan S.C. who adopted an informal or unconsciously, I suspect consciously, sea of dark suits in front of them. policy of briefi ng women, particularly in seemed to engage in a policy of having From my experience change did not signifi cant cases, wherever practicable. women juniors. In particular, although start to occur on any noticeable basis until Hence, Elizabeth Curtain was briefed to not exclusively, they were Alan Goldberg agents of change committed themselves to represent the State of Victoria in rela- QC, Ron Merkel QC, Bernard Bongiorno it. In the early 1980s the Honourable John tion to litigation concerning access to in QC and Ray Finkelstein QC. There was Cain, then Premier and Attorney-General vitro fertilisation. Later Susan Crennan a small core of women who regularly of Victoria effected symbolic but never- QC was briefed as leading counsel assist- worked with those silks as their juniors theless signifi cant change. The period of ing the Royal Commission investigating — Ada Moshinsky, Susan Crennan, Susan

20 Kenny, Kate McMillan and, luckily, me. The identifi cation of difference is so often in the law as judges, barristers, solicitors, It was no coincidence that each of those interpreted as confronting discrimination attorneys-general, law makers and court women subsequently took silk and two on the one hand and a feminising and administrators. They identify an issue were appointed to superior courts. softening of legal rigour on the other hand. quickly, focus on it and persuade rather In my time at the Bar I saw signifi cant Complaint of discrimination leads to the than dictate. Mostly, women who work changes in relation to women: increased utterance of defences: “There are women in the law are goal oriented. They readily numbers, women moving through the judges”; “women silks”; “large numbers identify their litigation goal, their judg- ranks of seniority, women taking silk, of women solicitors”; and “vast numbers ment goal. Women provide perspective. women conducting complex civil and of women law graduates”. Complaint They search out the resolutions. Women criminal trials and an increase in the of discrimination leads to the converse have fi nely honed organisational skills number of women instructing in trials. I utterance in reply: “Women are not suf- (hence they make excellent juniors and saw a woman elected as Chairman of the fi ciently represented on the Bench”; instructors in litigation, sometimes of Victorian Bar. I saw, also, a powerful agent “There is disproportionate representation itself a distinct disadvantage). for change occur with the establishment of men at appellate levels”; “Women are Women are adaptive and fl exible. of the Women Barristers Association. under represented at partner level in the They have identifi ed the open and closed Beyond the Bar I saw women appear major fi rms”; “Women are not briefed in areas of legal practice. Thus, women have more and more often in court instructing major litigation or at best fi ll minor roles”; remained in the traditional fi elds of fam- in trials and women starting to appear “Women are mainly briefed in traditional ily law, conveyancing and criminal pros- in positions of partnership in the fi rms. areas (family law, conveyancing and ecution but expanded into relatively new Outside the profession I saw a woman criminal prosecutions)”. areas, taxation and revenue law, planning elected as President of the Law Institute and environmental law, administrative of Victoria, a woman elected as President law, human rights law and indigenous land of the Australian Bar Association. I saw I was surprised by the rights law. In so doing they have avoided the appointment of a woman to the High the more adversarial, combative zones of Court of Australia. I saw women appointed prevailing negativity at commercial law and common law. to the Supreme Court of Victoria and the the “Women and the Law” Women bring to the law a strong sense Court of Appeal and the Federal Court of session at the recent of method. This is borne out in the judg- Australia. I saw many women appointed ment writing of women in the superior as magistrates and judges of the County Commonwealth Law courts. They approach judgment in a Court to the point that there now seems Conference. It seemed to chronological manner with a strong sense to be a critical mass of women presiding in me that the time had come of method and stepped analysis. Let me those jurisdictions. Their presence cannot provide an example, the judgment of be ignored. It is no longer minor or token. to recognise and celebrate Lady Justice Arden of the English Court Despite all these changes there is the achievements of our of Appeal in Stevens & Ors v Bell & Ors, impatience that change is not occurring gender in the law and a complex superannuation trust case. The more rapidly. There is irritation at ongoing Canadian Reports are replete with the discrimination against women. assess strategies for contributions of Chief Justice McLachlin Having observed the Victorian experi- moving forward. and Madam Justices L’Heureux-Dubé and ence over almost 30 years and seeing the Arbour. We watch with interest the con- changes that I have, and they have been The identifi cation of difference incites tributions of Madam Justice Deschamps. signifi cant changes, I was surprised by the protection of territory and the gra- New Zealand, of course, has led the the prevailing negativity at the “Women tuitous dismissal of women as “having promotion of difference vis-à-vis women and the Law” session at the recent achieved so much” or “having done so from the recognition of women’s suffrage Commonwealth Law Conference. It well”. Promoting difference on one analy- to the appointment of women to highest seemed to me that the time had come to sis is provocative, negative and in terms offi ce, Chief Justice Elias. In Australia, the recognise and celebrate the achievements of conventional dialogue is unfulfi lling and contribution of Justice Mary Gaudron to of our gender in the law and assess strate- static. This approach displays negative the High Court, particularly in the areas gies for moving forward. Before doing that rigidity in the debate — a closed approach of the criminal law and industrial law, was I state that my observations are based to the gender dialectic. Discussion of applauded upon her recent retirement. on 30 years in the legal profession. My promoting difference on another analysis Women bring a combination of typi- experiences range the full spectrum from involves recognition and embracing of cally feminine characteristics to the law: law student to a commercial and equity change. From such alternative perspec- energy, patience, humour and insight. specialist judge who has recently made a tive promoting difference contemplates These characteristics they apply to their foray into the criminal law. My remarks lateralism, creativity, moving forward. work and it has a ripple effect on col- are devoid of footnotes and sources, they In the context of the intellectual debate leagues, clients, staff and litigants as the are based entirely on the scientifi c method about legal gender politics I suggest that case may be. My list is not exhaustive. It of empirical research — that is, my life in alternative approach. is intended to highlight the difference that the law. Taking the second approach, in exam- women bring to the law. Yet, in the legal ining women and the law and consider- gender context the negative side of the What then is Promoting Difference ing promoting difference a question is debate dominates. I suggest the positive about? prompted: What is the difference that side receive much greater prominence. Difference, when used in the context of women bring to the law? First, a differ- What is the positive side? It is the seeking women and the law, provokes negativity. ent perspective. Women are represented out of solutions. What are the solutions?

21 I make some suggestions and that is all so that the catch cry that “they have need to re-visit the arguments concern- they constitute, mere suggestions. achieved”, “women are silks”, “women are ing maternity leave and family leave. The briefed” and “women are judges” can be Law Institute of Victoria and the Victorian 1. Recognition demolished. Women Lawyers have done enormous There needs to be recognition that there It seems to me that also it is time for work in this regard. At the launch of are no absolute solutions. Nonetheless, leadership. I mention my experience the Partnership Program of the VWL I, solutions ought to be pursued by pro- of the leading silks who tended to have perhaps cynically, remarked “How will gression. As new gender phenomena women juniors. Each of those silks has you stop the report being put in the bot- are revealed new solutions are required. been appointed. It seems to me that few tom drawer of the managing partners?” Recently the Victorian Bar with the co- have taken up from where they left. I Fortunately, and signifi cantly, the VWL operation of the courts re-visited the sur- would suggest that the leaders of the has very energetic leaders. The report veys conducted in 1998 as to the break-up Victorian Bar should do everything they does not seem to be lying in a drawer by gender of appearances of counsel. can to promote the inclusion of women somewhere lost. Meetings have been con- Sadly the situation seems to have dete- juniors in their court teams. The best vened with managing partners of law fi rms riorated. The numbers of women appear- way of advertising women and their com- and the need for fl exible work arrange- ing in cases has largely declined. My own petence is for them to be seen in court. ments to accommodate women discussed. empirical research as a judge sitting in the The Chairman, Vice Chairmen and Nonetheless, the campaign must continue Commercial List and Corporations List for members of the Bar Council who are silk and the Law Institute should maintain its some years is that women are simply not could perhaps be surveyed as to how support and commitment. being briefed in commercial trials. Indeed, many of their juniors in the past two The bottom line is that women as a appearances by women were so rare that years have been women. The same ques- resource in the law is a very very valuable I can name (without the assistance of tions might be asked of the inner Bar. My gold lead. It demonstrates sheer commer- a note) the fi ve women who appeared suggestion applies equally to female and cial stupidity to mine the alluvial gold and before me (as juniors) in commercial and male silks. not make the long-term investment in the corporations trials and the three women Ruth McColl S.C. in her capacity of infrastructure to facilitate the mining of who appeared before me on contested President of the New South Wales Bar the deep, pure leads of gold. interlocutory applications. Indeed, on Association has referred to the resolu- Friday directions days in a period of three tion passed by the New South Wales Bar 2. Responsibility and a half years in the Lists I invariably had Council in April 2000 concerning the qual- As women progress, those who succeed before me a sea of men in dark suits. I am ity of women at the Bar. The resolution cannot rely solely on their example. They surprised by this phenomenon. Surprised included a request for heads of chambers ought use their achievement to expressly because the profession has been told at to take a leadership role in relation to the and practically support the development the highest levels how competent and able encouragement of equal opportunity for and promotion of younger women in the women are as counsel. Chief Justice Black women, setting objectives, and estab- law. Cross-generational promotion should of the Federal Court of Australia stated lishing support groups and connections form part of the mature ambition. As we the position in plain and emphatic terms in between the Bar Council and the New progress there are constantly women an address to the profession and the Bar. South Wales Law Society to eliminate behind us. It is imperative that the hand I will return in a moment to other sexually discriminating practices. It must be cast down to the generation below to strategies but the recent survey from the be said that the Victorian Bar has done a pull up the women from the previous gen- Victorian Bar as to the appearances of lot for women. But having done that work eration to the next. women is critical. Of itself the survey is it must be recognised that the solution a useful document but it is vulnerable to needs to be ongoing. The work is unfi n- 3. Accountability criticism on an obvious basis. I refl ected ished. I suggest it is time for a re-appraisal When the opportunity for progression on the calibre of women I would expect of equality of opportunity for women at arises, duty ought prevail. When the offer to have seen appear in the commercial the Victorian Bar. of partnership, the diffi cult brief or judi- and corporations jurisdictions and for that Turning to the profession, I do not cial appointment comes there is a duty to matter in the criminal and appellate juris- accept, a duty to gender. Without seeing dictions where I have presided. Looking at myself as a self-appointed recruiting agent the list of names one point became obvious for the government I made a point in recent to me. Almost all of the women I thought The numbers of women months on an informal basis of speaking to of are sought after, very busy and probably appearing in cases has women who I thought might be potential very diffi cult for practitioners to brief. It largely declined. My appointees to partnership or judicial offi ce. might be said, therefore, that there are I was shocked and disappointed to fi nd, simply not enough women at this time. own empirical research based on my own imperfect surveys, that Before such suggestion is howled down as a judge sitting in the women think and are being encouraged I raise it because, as I say, the survey is Commercial List and (generally by men) to “wait a while yet”, vulnerable to criticism. It seems to me that “stay as a silk for a while”, “enjoy myself what is needed is a further updated survey Corporations List for for a while” and “there will be plenty of of women barristers themselves as to their some years is that women opportunity later on”. Was I really that experience, the jurisdictions they practise are simply not being foolish in October 1998 when I answered in and the extent of their briefi ngs. It is the call and accepted my appointment? now fi ve years since the previous work by briefed in commercial Could the same be said about Justice the Victorian Bar. It needs to be updated trials. Elizabeth Evatt? Justice Mary Gaudron? 22 Justice Susan Kenny? President Margaret tionate representation in practice, at the McMurdo? You see each of the women I Bar and on the Bench. I suggest an addi- mentioned were relatively young women tional way of approaching representation. at the time they were approached to Contemplate the difference that women accept appointment. They could so eas- are able to make to the development of ily have postponed the moment. But the law and contemplate whether their let me postulate this question: if these contribution will develop better law. women had declined appointment who I declare my bias on the suggestion. would have taken their place? And so I Nonetheless, in making the suggestion I say that if the call comes to take judicial urge your refl ection on how the law will appointment, to accept partnership, to develop with the promotion of the femi- THE take on the diffi cult complex brief or fi le, nine difference. ask yourself this: if I do not accept who Some of my remarks I stated previously will? At the end of the day there is no use at the Commonwealth Law Conference ESSOIGN complaining about the absence of women but I think they are important and need if you yourself are not prepared to stand to be re-stated. It was suggested to me Open daily for lunch up and be counted. that in speaking to you tonight my pur- See blackboards for daily specials 4. Perseverance pose was to provide inspiration. In the Essentially the solution is this, keep gen- presence of this audience I think that is Happy hour every Friday night: der on the agenda. Perseverance, is the totally unnecessary. You have all achieved 5.00–7.00 p.m. Half-price drinks ultimate imperative in promoting differ- extraordinary heights. As we look at one ence. another we all know how diffi cult it is. Great Food • Quick Service • Take-away There is nothing special about me or what food and alchol EPILOGUE I have done. In the legal gender debate it is frequently Thank you for the honour and privi- Ask about our catering: quality food and suggested that as women make up fi fty lege of speaking to you this evening. competitive prices guaranteed per cent of the population there ought to I congratulate the winners of the awards. be no barrier to women achieving propor- They are well deserved.

23 Articles A Vote Against Judicial Elections

It is not unheard of for a member of the United States judiciary to act in a manner entirely incongruous to the position they hold. Judges have been known to refer to female attorneys as “babes”1 and to victims as “niggers”.2 They have been public about beliefs that homosexuals should be put in mental institutions.3 Judges have solicited sexual favours from female defendants4 and been charged with driving while intoxicated5 and perverting the course of justice.6 Recent studies further highlight the increasing prevalence of judicial incivility in open court.7 How is it that these individuals were selected for judicial duty? This article discusses the methods of judicial selection and in particular the American system of election and its deleterious impact on the justice system.

HISTORY state to provide for the selection of its N the early seventeenth century, Lord judges by popular election. For the next Chancellor Ellesmere, a supporter 65 years, every new state to the Union Iof King James I, asserted the King’s provided for some or all of its judges to be omnipotence over the English Court and chosen by popular election. stated, “The King is the law speaking.” When popular judicial election began, England’s Chief Justice, Sir Edward Coke, judges typically ran on partisan ballots. In bravely retaliated, arguing that the King the latter part of the nineteenth century, could not sit in the place of England’s reformers pressed for non-partisan judi- judges. Coke replied to his sovereign cial elections to quell infl uences by party that, “The King should not be under man, leaders. By the mid-twentieth century, but under God and law.” On that day in reformers began advocating the Missouri history, the selection of the judiciary Plan. This model of judicial selection com- belonged to the people through its king. bined appointment and election systems. Coke foreshadowed a more independent The key element was that a governor or judiciary insulated from the rigours of executive would appoint a judge from a list political selection. His ideas were put on of nominated candidates. The appointed hold as James I threatened to cast Coke judges then ran in periodic retention elec- into the Tower of London if he did not tions where voters determined whether cease challenging him. the judge remained in offi ce. Whether judges should be independ- Ashley Halphen is a member of the Judicial selections either by appoint- ent arbiters of legal principle or should Victorian Bar who practices in the ment or by election are presently the be held accountable to the electorate is a area of criminal law. He is the Vice most common methods of choosing judges debate that still looms large in American President of Reprieve Australia, an throughout the many American jurisdic- society. organization that provides legal and tions. Six states and the federal govern- The selection of state judges has humanitarian assistance to those ment use appointments as the exclusive undergone signifi cant change throughout facing execution by the state around selection method. Appointments are American history. Until the mid-1800s, the world. He is currently working at decided either by the legislature or the state judicial selection generally adhered the Offi ce of Capital Post-Conviction governor based on merit. Judges are to the federal model, emphasizing the Counsel in Jackson, Mississippi. appointed to long or life terms of offi ce appointment of judges. The emergence of and are ensured salary protection. egalitarian democratic ideals in the nine- teenth century brought about a growing judicial discretion was unconstrained by ELECTIONS belief that judges, like other public offi - the majority’s will. Approximately 82 per cent of state appel- cials, should be accountable to the voting As that ideal gained acceptance among late court judges and 87 per cent of state public. The popular sentiment was that reformers, a movement developed toward trial court judges run in some type of elec- the appointment method produced cor- the selection of judges by popular elec- tion. Judicial elections serve democratic rupt, elitist and arrogant judges because tion. In 1832, Mississippi became the fi rst and constitutional principles and promote

24 participation by ensuring judicial account- Canon 7 of The American Bar EFFECTS ability. There is a public expectation that Association’s Model Code of Judicial Whether partisan or non-partisan, judi- judges should be answerable for their judi- Conduct governs the campaign and politi- cial elections create serious problems. cial decisions and conduct. Incompetent cal activities of judges and candidates for Elections threaten judicial independence judges can be removed by facing the elec- judicial offi ce. Many states have based by pressuring judges to follow the will of torate for periodic elections. their codes of judicial conduct on the the majority, which may run counter to The judicial election system in the Model Code. Its ultimate objective is to the rule of law. The public’s confi dence United States is not dissimilar to a preserve the independence and integrity in the judiciary also suffers as tremen- democratic political elective process. of the judiciary by curbing issues and dous sums of money are poured into Candidates participate in campaigns to abuses associated with election cam- state judicial campaigns and political raise their profi les and project to the paigns. mud-slinging becomes commonplace. electorate an image that warrants selec- Candidates are prohibited from par- Furthermore, elections may cause quali- tion. Campaigns are a costly exercise and ticipating in forms of conduct that would fi ed candidates to shy away from offi ce, candidates rely heavily on contributions affi liate them with a political group. They or may result in their removal from offi ce, and funds generated from fundraising are also prohibited from announcing for reasons irrelevant to the person’s abil- events. views on disputed legal or political issues ity to thoughtfully apply the law in a fair The tone of judicial campaigning and knowingly misrepresenting the public and impartial manner. The most profound is becoming increasingly disturbing. about any fact. ramifi cations manifest in courts dealing Campaign strategists have been known to To avoid issues of confl ict or bias that with death penalty cases. brandish the word “paedophile” close to may arise when a candidate is selected, an opposing candidate’s name and charac- campaign candidates cannot be told the 1. The Lack of Independence and terize an opponent as someone “who cares identity of contributors. Not only are can- Impartiality about the rights of violent criminals”. One didates prohibited from personally solic- The restraint, temperament and detach- fl yer contained a mugshot of an opponent iting campaign contributions, the Code ment that we rightly demand from our with the words “murderer … rapist … requires the formation of a campaign judges are fundamentally incongruous innocent victims …” The insinuation committee that deals with funds so that with political campaigns. Yet judges are being that the opponent should be held the contributors remain anonymous. expected not to gauge public opinion responsible for the murderous rampage of The Code allows for fundraising events in making their decisions, but rather, as an individual he had afforded leniency to to raise money provided that the nature Judge William Cranch wrote, to decide in an earlier case. and type of event does not compromise the legal issues before them “undisturbed Campaigning becomes particularly the candidate’s integrity or independ- by the clamour of the multitude”. unsavoury when death penalty cases are ence. Those who oppose judicial elections, used for a “tough on crime” platform. Restrictions on campaign content have however, argue that current campaign Candidates have boasted being respon- tended to be interpreted in a manner that elections and fundraising practices are a sible for the most executions in the precludes the presentation of meaning- serious threat to judicial independence. state and the ability to do the best job in ful information on judicial candidates to Judicial independence and autonomy are executing more people. Another candi- the electorate. The end result is that the among the touchstones of the American date ran advertisements taking credit for electorate has inadequate information legal system and said to be the backbone 32 executions. In Florida, the incumbent to “judge the judges”. One media com- of American democracy. gubernatorial candidate ran television mentator expressed a need to, “take off These “touchstones” are being threat- advertisements in 1990 showing the the muzzle and allow judges to discuss ened by judicial fundraising and by judges’ face of serial killer Ted Bundy who was issues”. dependence upon powerful special inter- executed during his tenure as governor. Due to a lack of useful information, ests. Justice Stephen Breyer warns that: The governor stated that he had signed a large part of the public casts votes on over 90 death warrants in his four years inappropriate criteria such as “ballot Independence doesn’t mean you decide in offi ce. clues” or other surface characteristics. the way you want. Independence means Many just refuse to vote at all. Virtually all you decide according to the law and the facts necessary to make evaluations are facts. The law and the facts do not include kept from voters. Voters typically do not deciding according to campaign contribu- even know the judicial candidates, much tions … The balance has tipped too far, and The judicial election less their accomplishments, their princi- when the balance has tipped too far, that system in the United ples, or nearly any other factor related to threatens the institution. To threaten the the candidates’ capability and merit. institution is to threaten fair administration States is not dissimilar While voters may be prevented from of justice and protection of liberty. to a democratic political obtaining real knowledge about the judi- elective process. cial candidates, the contributors, special The threat to judicial independence interests and lawyers are entirely aware is infl uenced by the fact that a sub- Candidates participate in of the judicial candidates’ values and stantial portion of a judge’s campaign campaigns to raise their philosophical positions. As the need to contributions comes from those seeking profi les and project to the raise large amounts of money to fund favourable decisions. Judicial candidates elections escalates, candidates primarily generally receive campaign contributions electorate an image that seek the support of lawyers and special from a narrower set of interests. Special warrants selection. interest groups. interest groups and lawyers contribute a

25 large portion of donations to judicial cam- an entire legislature and [the judge] can campaign contributors are not benevolent paigns. Empirical evidence confi rms that probably do a lot more for you.” donors. A recent national poll indicates the threat to judicial impartiality caused A lawyer who practised law in Texas that four out of fi ve Americans believe by campaign contributions is more than for 38 years sums up the situation: “With that “elected judges are infl uenced by mere perception; lawyer contributions our partisan elections today, given a hard having to raise campaign funds” and may in fact infl uence court decisions. but close case, which even a biased judge that “judges’ decisions are infl uenced by There is also a concern that if judges couldn’t be criticized for holding either political considerations”. State polls have can be infl uenced by campaign contribu- way, the judge is going to decide for the produced similar alarming results. tions then they will be unable to resist party who gave him the $10,000 donation To make matters worse, the increasing the diffi culties that a judge faces through for his campaign chest.” fi erceness of judicial campaigns is gen- friendships and associations that come A glaring example of a judiciary whose erating nasty rhetoric and partisanship. before the court. For state court trial citizens have every right to consider “Attack advertising, the use of aggressive judges, lawyers’ contributions are the it tainted is found in Texas. A report political consultants and slogans that are primary source of campaign funds. How from a citizens’ group, Texans for Public often only thinly veiled promises to sus- can these judges effectively discipline Justice, found that seven justices of the tain or overturn controversial decisions and criticize lawyers if they are depend- Texas Supreme Court had raised a total are now established parts of campaigns ent on the lawyers for campaign contribu- of $9,166,450 in contributions for their for seats on state courts.” tions? most recent elections. The amounts One must question whether the pub- It is also feared that judges will not be raised were not the most troubling issue. lic will continue to hold judges in high able to render a decision in a case against The report noted that: “Sources closely esteem when they see judicial candidates those who are past or future contributors. linked to litigants with cases before the engaged in or subject to such smear Many rich and powerful organizations same court contributed $3.7 million, or 40 campaigns and character assassinations. spend enormous sums of money attempt- per cent of the grand total … Of the 530 Michigan Governor John Engler summed ing to capture the soul of the judiciary opinions the Supreme Court issued dur- up the prevailing opinion on the subject of through campaign contributions. There ing the period studied, 60 per cent (322 judicial elections when he stated that “the is nothing to protect an elected judge cases) are tainted by the fact that at least campaigns have a less than helpful effect who enforces the Constitution from an one of the seven justices took money from in terms of the image of the judiciary”. angry constituency that is concerned only sources with an interest in the case.” The general view is that current elec- about the end result of a ruling and may tions and campaign fi nancing create an have little understanding of what the law ii) Perceived Corruption impression of impropriety. The erosion requires. A belief that judges are directly or of public confi dence means no matter the Given these disturbing developments, indirectly exchanging rulings for con- result, public perception will be that the it should come as no surprise that surveys tributions has signifi cant potential for judge’s ruling was paid for. “Within the consistently show that an overwhelming developing among citizens a widespread last few years, this has become a national majority of the public believe that many perception of corrupt judicial fundrais- problem and one that has to be looked at state courts are infl uenced by money and ing. Even if judicial corruption through nationally, not just in whatever state is politics. decisions that favour special interests is having an election at the moment.” not empirically demonstrable, the public’s 2. Corruption and the Erosion of perception could be that judicial decision- 3. Discourages Meritorious Candidates Judicial Integrity making favours special interests to which High-cost campaign fundraising discour- The culture of judicial campaign fi nancing the judge is obligated through fi nancial or ages qualifi ed judicial candidates from and fundraising creates both the reality other campaign support. running or seeking re-election. Few com- of impropriety and its appearance as an Once the public understands that petent lawyers are prepared to surrender inherent and unavoidable truth. courts are basing their rulings on political a successful legal career to engage in considerations, it undermines the legiti- rigorous and expensive campaigning. The i) Corruption macy and the moral authority of courts as cost of judicial campaigns has reached Judicial corruption is created by the need enforcers of the Constitution and law. a level where both candidates and sit- for campaign funding. This pervasive The implications are quite serious. ting judges are shaping their behaviour cultural value makes judges fair game as Without a widely held public perception to attract fi nancial and other support. tools to be used to achieve desired ends. of judicial fairness, the members of politi- This not only results in the distortion of One scholar goes as far as asserting that, cal societies distrust their political institu- judicial selection by repelling meritorious “We have created a system that allows tions and lack the will to cooperate with potential candidates who are unwilling to payments that would otherwise be bribes others. If this distrust continues too long compromise their principles, but also in and legalized the ‘bribes’ as campaign and becomes too intense and pervasive, the capture of judges by special interests contributions.” the social glue is not strong enough to willing to fi nance judicial campaigns. The reality then becomes that justice is prevent a weakening or even disintegra- This problem will worsen as the cost of increasingly slanted toward the wishes of tion of the political system. judicial campaigns continues to rise and a minority of the wealthiest citizens whose The appearance of judicial neutrality candidates are forced to spend more of role in funding elections is disproportion- is threatened because contributors are their own money on elections. Positions ately large. “The people with money to attorneys, special interest groups or liti- on the bench may become limited to those spend who are affected by court decisions gants who appear before the judge. who can purchase them or are willing to have reached the conclusion that it’s a lot The public believes that campaign con- take out personal loans to fi nance their cheaper to buy a judge than a governor or tributions are made to infl uence a result; campaigns.

26 Most people agree that the principal protections would be subject to serious it clear that unpopular decisions in capital qualifi cations for a judge are a competent erosion.” cases, even when clearly compelled by mastery of the law, good moral charac- The fear of removal by the electorate law, may cost a judge a seat on the Bench. ter, intelligence, impartiality, emotional may pressure a judge to temper judicial In 1992 Justice James L. Robertson of stability, courtesy, decisiveness and decisions and may reduce a judge’s will- Mississippi was the subject of a virulent administrative ability. While the ability ingness to protect minority rights and campaign heralded by the Mississippi to raise money, contacts in the politi- individual liberties. A state judge who Prosecution Association. A campaign cal establishment, and charisma may be reverses a death penalty case is subject to circular distorted Justice Robertson’s somewhat appropriate traits for selection attack and may be vilifi ed by a widespread opinions in two death penalty cases. The of candidates for legislative or executive campaign of slur and distortion. Failure US Supreme Court subsequently reversed offi ce, they have no relevance to the quali- to affi rm the death penalty has caused both cases mentioned in the circular. fi cations of a judge. countless judges to be defeated or chal- Justice Robertson was defeated at elec- lenged. tion despite being vindicated by the US 4. Death Penalty Cases The chief justice and two other judges Supreme Court. United States Supreme Court Justice of the California Supreme Court were In the face of overwhelming pressure, Robert Jackson wrote, “One’s right to life, removed by a retention election in 1986 some judges cower to their electorate. liberty and property, to free speech, free- after the governor threatened to have One of the most telling examples arose dom of worship and assembly and other them defeated if they did not uphold more when the Texas Court of Criminal Appeals fundamental rights may not be submitted death penalties. They did not bow to his failed to reverse a judgment imposing the to vote; they depend on the outcome of threats so he successfully organised a death penalty even though the defend- no elections.” When it comes to the death campaign to oppose their re-election. ant’s attorney slept through major por- penalty, however, judges face unparalleled Capital cases have increasingly become tions of the trial. pressure from political parties, interest campaign fodder in judicial elections. More alarming is the revelation groups and the media. Elected judges Judges have come under attack and have by Supreme Court Justice John Paul who wish to remain in offi ce or move to been removed from the Bench for their Stevens. He pointed out that in states a higher court are sometimes forced to decisions in capital cases. Justice Penny that previously allowed judges to override base their decisions on political realities White of the Tennessee Supreme Court jury sentences in capital cases, judges and the wishes of the partisan voting joined her four colleagues in a unanimous would frequently override sentences of majorities. opinion remanding a death penalty case life imprisonment and impose death, but It has been observed that “the more for a new sentencing hearing because seldom overrode death sentences. He susceptible judges are to political chal- of evidence excluded in the fi rst hear- observed that: lenge, the less likely they are to reverse ing; she did not author the opinion. She a death penalty judgment”. Rulings in became the target of a smear campaign Elected judges too often appear to listen a publicized case can have major politi- that resulted in her defeat in a retention to the many voters who generally favour cal effects, such as loss of one’s position election in 1996. One campaign brochure capital punishment but who have far less or any hope of promotion, and judges stated: “Richard Odom was convicted of information about a particular trial than are aware of this as they make contro- repeatedly raping and stabbing to death the jurors who have sifted patiently through versial decisions, particularly in capital a 78-year-old Memphis woman. However, the details of the relevant and admissible cases. Justice White felt the crime wasn’t hei- evidence. How else do we account for the Justice William Brennan noted that nous enough for the death penalty so she disturbing propensity of elected judges to the risk of a biased judge is “particularly struck it down.” The Tennessee Police impose the death sentence time after time acute” in capital cases. “Passions, as we Benevolent Association reacted by claim- notwithstanding a jury’s recommendation all know, can run to the extreme when ing, “Justice White is more concerned of life? the state tries one accused of a barbaric with the scum’s rights than she is with the act against society, or one accused of a victims and citizens of this state.” Elected judges may be tempted to com- crime that, for whatever reason, infl ames Challenges to state judges have made promise the procedural rights of criminal the community. Pressures on the govern- defendants lest they appear soft on crime. ment to secure a conviction, to ‘do some- Most disturbing are the several studies thing’, can overwhelm even those of good which found that state Supreme Court conscience. When prosecutors and judges It has been observed that justices facing re-election in states where are elected, or when they harbour political “the more susceptible the death penalty is particularly popular ambitions, such pressures are particularly judges are to political are reluctant to cast dissenting votes in dangerous.” death penalty cases, even if they believe This “danger” touches on the impedi- challenge, the less likely the sentence should be overturned. In ment to the rights of many classes of they are to reverse a fact, judges in these states may scramble unpopular defendants by overlooking fun- death penalty judgment”. to be assigned to death penalty cases to damental constitutional rights to accom- obtain favourable press coverage, and may modate political pressures. Justice Byron Rulings in a publicized even be more likely in an election year to White once observed, “If [for example] a case can have major ignore a jury recommendation for a life judge’s ruling for the defendant ... may political effects, such as sentence and impose the death penalty determine his fate at the next election, where state law permits. even though his ruling was affi rmed and loss of one’s position or As crime has become a more prominent is unquestionably right, constitutional any hope of promotion. issue in political campaigns, the death 27 penalty has become the ultimate vehicle mines the independence, integrity, not subject to the problems inherent for politicians to demonstrate just how and impartiality of the state judiciary. to an elected judiciary: the appearance tough they are on crime. Elected judges Professor David Barnhizer of Cleveland of impropriety caused by judges taking campaigning use controversial cases, such State University argues that, “Rather than money from those who appear before as death penalty cases, to win elections. symbolizing justice as a blindfolded god- them, the threat to judicial independence In Atkins v State, a lower court judge in dess carefully weighing the evidence in resulting from a judge’s dependence on Alabama was appointed to preside in a legal disputes to ensure fair and unbiased campaign contributions and party sup- capital trial two weeks before an election outcomes, it has become more accurate to port, the reduced perception of impar- in which he sought a seat on the circuit visualize her with blindfold askew, sneak- tiality caused by statements of judicial court. The judge denied a continuance ing glances to see who places the most candidates on political or social issues, even though the defence attorney was suf- money or other tribute onto her scale to the elimination of qualifi ed lawyers who fering numerous complications from polio. tilt the balance in their favour. would otherwise be willing to serve as The judge later refused a change of venue Too many sitting judges can be jurists, and the loss of public confi dence motion based on the media attention fol- best described as “paragons of judicial caused by the vile rhetoric of judicial lowing his denial of a continuance. Moving Darwinism: successful candidates who campaigns. quickly through the case, the judge, who have learned how to manipulate the sys- Judicial independence is guaranteed was running a law and order campaign, tem and compete more effectively than because judges are insulated from criti- oversaw a guilty verdict and recommenda- their challengers”. cism and threats of removal and do not tion for the death penalty. The judge won If “blindfolded Justice” is the abstract have to rely on popular approval for their election to the circuit court. symbol of independent and equitable decisions. Democratic principles are still When the community that elects the decision-making, the judge is the concrete served by indirect accountability to the judge is demanding an execution, the manifestation of the process through public through the elected appointing judge has no political incentive to appoint which we attempt to attain justice and authority. And fi nally, the system attracts an experienced lawyer who will devote fairness. Achieving justice through the better qualifi ed judges because it is devoid large amounts of time to the case and fi le judicial mechanism requires independent of campaign fi nancing and fundraising; the applications for expert and investigative and principled arbiters free of corrupting most qualifi ed lawyers are not discour- assistance, all of which will only increase infl uence. aged from seeking judicial posts. the cost of the case for the community. As Scholars urge that steps should be In a system that imposes the death a result, judges frequently assign lawyers taken to insulate judges from political penalty for certain types of homicides, it who are not willing or able to provide a pressures and to end direct elections and is critical that a judge apply the law and vigorous defence. retention elections for judicial offi ce. maintain the rights of the accused no mat- For example, judges in Houston, Texas, Judicial codes of conduct that limit ter how heinous the crime, how loathed have repeatedly appointed an attorney improper behaviour have not been an the individual or how unpopular the rul- who occasionally falls asleep in court, and effective response to the situation. ing may be. Even more signifi cant is that is known primarily for hurrying through Furthermore, even though judges may society have unqualifi ed faith and trust in capital trials like “greased lightning” with- excuse themselves in circumstances of the integrity of the decisions made. It is out much questioning or making objec- actual or perceived instances of bias, well to remember that the ultimate deci- tions. Ten of his clients have received they rarely do so because disqualifi cation sion in a capital murder is an irreversible death sentences. standards are subjective. one. Doubtless, democratic principles that Appointive judicial selection systems demand the will of the majority would ask CONCLUSION may provide the best remedy for the for no less than utter focus on the appli- The American justice system utilises a damage elections are causing to the state cation of the law without regard to any judicial method of selection that under- judicial system. Appointive systems are political consideration.

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28 Articles

Living Legends of the Bar

Legends in their own time: The edited speech of Justice Goldberg at the Jeffrey Sher, Douglas Meagher, Legends Dinner, the Essoign, Friday 29 August Jack Fajgenbaum, Max Perry, Susan Crennan, Hartog Berkeley, 2003. George Beaumont and Gerry Nash.

HEN I was asked to speak about greater wonder that any man in his right Bacon, Lord Chancellor of England, who the Living Legends of the Bar we judgment should desire it or not desire to said: Ware honouring this evening I won- decline and be delivered from it. dered — why me? I initially thought that Judges ought to be more learned, than it was probably because, with one excep- Sir Mathew Hale also observed: witty, more reverend, than plausible, and tion, I had in the course of my 31 years more advised, than confi dent. at the Bar offended each and every one That since it is a business of that impor- of them on at least one occasion, so that tance and yet diffi culty a man may be I am also constrained tonight by his anything I said would just add insult to careful to keep a temperate body, with observation that: earlier injury. great abstinence and moderation in eating But then I refl ected that it was and drinking, and a temperate mind totally One foul sentence doth more hurt than probably because I was a judge. It was abandoning all manner of passion, affection many foul examples, obviously a task for a judge. Why? The and perturbation that so he may come to answer is probably found in the writings the business with clearness of understand- and of two early judges. Sir Mathew Hale, who ing and judgment. lived in the 17th Century, is recorded as An overspeaking judge is no well-tuned saying: I am conscious of the fact that tonight cymbal. is not only a night for acknowledgment But most certainly it is a careful and a dif- of achievement but also one for a We are here to honour this evening in fi cult employment so that it is a wonder demonstration of wit. However, I am con- absolute order of seniority but in equal that any prudent man will accept it, and a strained by the observations of Sir Francis order of importance and respect, Hartog

29 Glen McGowan, Tim North, Graeme Clark, John Larkins QC and Cameron Macaulay.

Michael Flynn, Elizabeth Loftus, Peter Simon Wilson QC, Jayne and The scene at the Essoign. Vickery QC and Max Perry. George Beaumont QC, and Manny Garantziotis S.C.

Berkeley, Jeffrey Sher, Douglas Meagher, Gaudron asked him one day, “Why don’t But let me turn to more serious matters. Jack Fajgenbaum, George Beaumont, you bring a woman with you to Canberra?” Each of our legends is being honoured Gerry Nash, Susan Crennan and Max Hartog, conscious of the well-known this evening because they exemplify, in Perry. Between them they have clocked principle of law that the judge’s point numerous respects, the principles and up 269 years of practice at the Bar. If laid is the best point, asked the Victorian standards for which an independent Bar end to end, I guess they would be laid. Government to fi nd him a respectable stands. Integrity, hard work, ability and But we are honouring them tonight as woman. They briefed Sue Crennan, but an absolute commitment to acting in their “legends” and I wondered what imputa- who else. client’s interests and not being deterred tion was to be derived from someone But refl ecting on piousness reminds from standing up to irascible judges. I’m being described as a “legend”. In a lay me of the time Gerry Nash was appear- not going to recite their CVs, Who’s Who sense I thought that meant that there ing before Justice Howard Nathan on an listings, or lists of their committees, were myths about them. But since their order to review. The point of law to be cases and professional achievements. tools of trade have been words for so determined was whether masturbation That’s all a matter of record. However, many years, I had recourse to the Oxford would constitute prostitution. An under- I should acknowledge the work each of English Dictionary. The very fi rst or cover policewoman had been approached them has undertaken for the Victorian primary meaning of “legend” I found was for a quote: “How much for a hand job?” Bar through the Bar Council, Barristers “the story of the life of a saint”. That For some reason which is not clear, Gerry Chambers Ltd and numerous Bar and appealed to me. I refl ected on St Hartog, had the matter stood down to undertake Building Committees. Of course, each and St Jeffrey, St Douglas, even St Susan and some speedy research as to whether mas- every one of them has their own particular ultimately St George! But having cast turbation featured in the law reports. He idiosyncrasies and some of these will round for stories I must confess pious- returned some time later and the follow- shortly emerge. ness, or should I say piety, [and don’t ing exchange occurred: pick me up John Batt as both are in the Nash: “I found three cases of masturba- HARTOG BERKELEY Macquarie Dictionary] was not in the fore- tion in the Supreme Court library, Your Let me begin with Hartog Berkeley. I front of what was collected, apart from Honour.” remember many years ago working as Susan Crennan. But that was because of Nathan J: “Well, Mr Nash I trust that will a young junior with Hartog. That most Hartog Berkeley’s response once when he bring this to a suitable climax.” important and religious part of the brief was Solicitor-General and Justice Mary Nash: “I’m in Your Honour’s hands.” approached — what to mark. We fi xed on

30 Mary Baczynski with Justice Nathan on his knee.

Justice Goldberg orates to the throng. Mr Justice Batt, Kate McMillan S.C. and Hon. William Kaye AO, QC. what I thought were the usual type of fees cross-examination of the contractor he that on the basis of the contractor’s evi- and then Hartog added — sorting papers was asked: dence, Hartog was entitled to cut down in brief — $150. Of course in those days I Question: Did you have a conversation trees on his property because of the 2 had to mark /3 myself. with the manager? exception in the by-law or regulation that Hartog had the unenviable experience Answer: Yes. you could cut down a tree without a per- about twelve years ago of being a litigant Question: What did he say? mit when it was dead or dangerous. The himself, albeit unwittingly. He or his man- Answer: Could you come down and look Magistrate accepted the submission that ager arranged for a contractor to cut down at some very dangerous trees. Hartog’s cows were in potential danger some trees on his farm up Mansfi eld way Question: What did you do? and that accordingly he was entitled to on the Rubicon River without the required Answer: I went with the manager, cut down the trees to protect the cows permit under the planning scheme. inspected the trees which were old river from falling boughs. Hartog even obtained Apparently some local councillor wanted red gums. an award of costs and when he walked out to embarrass either the government of Question: Were the trees dangerous? of court there was not a camera crew to the day or its senior legal offi cer so Hartog Answer: Yes, they drop boughs, they’re be seen. was summonsed for cutting down trees known as widow makers. I wouldn’t be That case demonstrated that Hartog without a permit. The case was heard in putting my good cattle under them. was no different from a common or gar- the Mansfi eld Magistrates’ Court. It was Hartog had some pretty good prize den farmer but on occasions he did have apparently regarded as somewhat news- cows in his paddocks, prize cows shelter delusions of status. On one occasion worthy as Channel 9 fl ew up a camera under trees, boughs on trees sometimes Hartog and Margaret went to London crew in a helicopter so that they could break and fall off the trees, if prize cows but they had not booked a hotel. Some take pictures of the disconsolate Berkeley are under the boughs when they will fall Royal Princess was getting married and walking out of court having been con- they will be severely damaged — there- the hotels were all full. Hotel after hotel victed and no doubt fi ned. It did not turn fore it is prudent animal husbandry to cut gave them the same answer — no room. out that way. down trees on your property to ensure Finally at the next hotel where he got a The earthmoving contractor who had that your prize cows are not damaged. At knockback, Hartog said, “I’d like to speak cut down the trees was called by the the end of the informant’s case a submis- to the manager please.” The manager informant to give evidence as to the cut- sion of no case to answer was made by appeared. Hartog asked him, “Are you ting down of the trees. In the course of Berkeley’s eminent counsel to the effect suggesting that if Her Majesty The Queen

31 came and asked you for a room, you would Legal secretary required for barrister at I recall Jeff Kennett’s defamation suit not be able to fi nd one?” The response was Owen Dixon Chambers. Large offi ce with against The Australian. It was towards immediate: “No, of course not.” Hartog’s pleasant view. Variety of work, congenial the end of the luncheon adjournment in response, “Well, my good man, I can tell atmosphere. Must be able to work under the Supreme Court. Picture the place: you that Her Majesty is not coming so I’ll pressure and negotiate with people at all the men’s toilet. Sher and Kennett found have her room.” levels. Salary negotiable. themselves standing side by side at the But Hartog also had his tactful and urinal. Although in such circumstances sensitive side. Years ago Michael Dowling Hartog decided to be more realistic and it is important to keep “eyes front”, one sometimes brought his niece, Elizabeth, open. He placed an advertisement in the cannot help but see in one’s peripheral a solicitor, to lunch and Hartog had met same edition and the following appeared vision who the other person is. Kennett, her on many occasions without knowing of in an adjoining column: ever the friendly and outgoing politician their relationship. When Michael Dowling’s said, “G’day Jeff. Heard about your vine- fi rst daughter was married Hartog was at Legal secretary required for charming old yard — fantastic. Heard it’s up for sale.” the wedding, so was Elizabeth, but Hartog gentleman at Owen Dixon Chambers — cof- Sher’s response: “With the bloody money had studiously not recognised her. Well fee making, typing and shopping. Salary from this verdict you’ll be able to buy it.” into the evening Michael Dowling came negotiable. End of urinal activity and Kennett reports upon Hartog and his niece, Elizabeth, was this exchange to Jeremy Ruskin, his coun- nearby. Michael said “Of course Hartog, Would you believe the secretary’s sel, and says, “Looks like we’ve got them you know my niece, Elizabeth.” Hartog advertisement got two replies but Hartog’s on the run.” However, Sher’s fears were was visibly relieved and said “Oh, you got thirty replies. unfounded and history has recorded that really are his niece” and was his sociable Kennett lost. self again. JEFFREY SHER The “anonymous” senior counsel Hartog had his own particular style Let me turn to a daunting opponent may have taken the view that Jeff never before appellate courts. On one occasion — Jeffrey Sher. caused him the slightest amusement, he was appearing before the Full Court Jeffrey Sher has built up a well but Jeff apparently regarded himself as with Justice Brooking presiding. Hartog deserved reputation for utter competence quite humorous. Jeff was opposed to Dick was arguing a quite hopeless case with and being relentless in the manner in Stanley in the case against the Red Cross his usual fl are. Brooking J, as usual, went which he runs his trials and, in particular, which was the fi rst case of an AIDS victim straight to the point: “But Mr Berkeley the way he cross-examines witnesses. He suing the Red Cross over infected blood. what about such and such a case. Doesn’t has obviously made a profound impression Jeff was desperate to get the case away that render your argument nugatory?” on many of his opponents over the years. from the jury and made no fewer than Hartog responded immediately “Your When researching humorous stories for six applications for discharge. His best Honour really shouldn’t tease me like the purpose of this evening’s conversa- basis was that his instructing solicitors, that” and without pausing for breath or tion, one senior counsel who wanted him- Arthur Robinson Hedderwicks, had been interruption, went straight back into his self described as “anonymous”, remarked, observing the jury very carefully and the argument. “Sher has never caused me the slightest jury didn’t laugh at any of Sher’s jokes or Hartog was a clever counsel. In one amusement in 30 years at the Bar.” I think humorous asides, which clearly showed case he was fi ghting Winneke and McPhee Jeff should take that as a compliment. that they were biased against his client. I in a defamation case. Hartog and Bob According to George Hampel, Jeff has think that application failed as well. Vernon were for the plaintiff. The news- an unremitting view of his cases and the Jeff Sher has served on the Bar Council paper had defamed his client who was a causes for whom he appears — the other and was on the Bar Council at the time milkman in Preston, alleging that he was side in this case is wrong — and unprinci- Lionel Murphy was appointed to the High guilty of a crime. The plaintiff had been pled — and ridiculous — with no hope of Court. You will recall there was some con- cross-examined with vigour by Winneke success — and there are no weaknesses in troversy about his appointment and some and McPhee but the paper got it wrong. his case. I remember one case many years barristers wanted to call a general meet- The son of the plaintiff had been in trou- ago which involved National Mutual and ing of the Bar. The matter came before the ble but not the plaintiff himself. McPhee, AMP and the movement of life assurance Bar Council. Dick McGarvie was Chairman in his fi nal address, said to the jury that agents from one company to another. I and Leo Lazarus was Vice Chairman. Dick we all make mistakes and sometimes we forget which way it was. Jeffrey didn’t McGarvie announced the agenda item even forget our wife’s birthday. Hartog quite achieve the result he anticipated. “High Court appointment” and Sher imme- turned this proposition of McPhee’s to I may have contributed to the result diately chimed in “I move that Leo Lazarus his advantage. He told the jury that we all because I took the view that I should try be appointed”. But Leo missed out. make mistakes and forget about our wife’s and unsettle Jeff if it was possible. I took Sher and McPhee had many bat- birthday, BUT THAT’S ONE WE PAY FOR. many objections and interrupted him, of tles over the years. They both had well Inevitably the jury awarded the plaintiff a course only when it was legitimate and deserved reputations in defamation mat- big verdict. proper to do so. At the end of the case Jeff ters. On one occasion Jeff represented It has been said that Hartog has an remarked to me, “Next time I’m opposed the Commissioner for Police, Kel Glare, understanding of members of the opposite to you I’m gonna bring a hammer and nails in his libel action against the Herald sex. This is best demonstrated by the time into court and nail your feet to the fl oor.” Sun for whom McPhee appeared. Frank when as Chairman of the Bar Council he I regard this as one of the greatest compli- Vincent was the judge and he had been needed a new secretary. His then secre- ments I have ever received at the Bar. lecturing in the Readers’ Course before tary placed the following advertisement Jeffrey wasn’t always accurate in the court and had told the readers to sit in in The Age: prediction of the outcome of his cases. on the case as they would see how two

32 top barristers behaved immaculately, typist and his computer literacy. I remem- robed and on his way to court with a case notwithstanding the high stakes and high ber back to the Painters and Dockers in each hand. Max was close by with some emotions in the case. That is not what Inquiry when he was counsel assisting. Easter bunnies. Quick as a fl ash, Max put a occurred. During the hearing McPhee in I think he had an offi ce somewhere near large Easter bunny under each of Michael a successful attempt to distract Jeff Sher, Queens Road, it was certainly out of the Black’s arms, so Michael had to walk with took a ballpoint pen to pieces, extract- city. I remember visiting him on behalf Easter bunnies sticking out of his arms. ing the internal parts and blew down the of a client who had been summonsed to How dignifi ed. tube. Jeff apparently got quite hysterical. appear before the Inquiry. Doug had built I should point out that Max has a driv- “He’s doing it! He’s doing it, Your Honour!” up a computer program by which he could er’s licence but doesn’t drive. When his Vincent immediately sent the jury out to tell at the press of a button which barris- reader Diana Rasheva was driving him to try and restore order in the court. Sher ters had represented any particular per- court one day she stopped to get petrol. complained “He was doing it!” McPhee in son and the persons who each particular She attended to the petrol, checked the oil all innocence said, “I didn’t do anything.” barrister represented from time to time. and the radiator, etc. A male motorist, see- Sher: “Yes you did.” Vincent calmed them I was offended by the fact that my name ing Max just sitting there in the passenger down and brought the jury back in to was not on the list. seat, said “You’d have to be the laziest, fat explain that a judge is sometimes like a I must say this for Doug, he is not **** I’d ever seen.” Max responded, “Well lion tamer with counsel. I think it probably afraid to stand up and be counted. He if that’s the case, you really ought to get took someone of Vincent’s experience to has appeared in a number of cases where, out more often.” keep those two under control. on one view, it might be said that he I should point out that Max says that was appearing for an unpopular party. the six least used words in the English lan- DOUGLAS MEAGHER However, he is also prepared to stand guage are, “Why yes Max, I’d like to.” Douglas Meagher has a well-earned repu- up against offi cialdom. He has appeared On one occasion Max was the presid- tation for getting involved in long cases. successfully for a solicitor challenging ing judge in a Readers’ Course moot in the The word is out — if you want a long case the powers of the Solicitors’ Disciplinary Banco Court. A group of Japanese tourists — get Doug Meagher. Some of his cases Tribunal ([1988] VR 757). Ten years later came into the back of the court shortly have been quite notorious and sometimes he again took on the Law Institute on before the end of argument in a traffi c Doug is not too far from controversy. He behalf of a law clerk, but this time unsuc- appeal to see Australian justice at work. is reported as saying, “A case isn’t a case cessfully ([1998] 4 VR 324). Max pronounced the death sentence. until you’ve been reported to the Ethics I haven’t had the pleasure of being Somewhere in Japan there is a group of Committee at least once.” driven by Doug, but I am told that is an people who think Victoria is really tough Doug Meagher is an enigma to me. experience I should avoid. Someone who on traffi c offenders. I have known him since our law school knows him very well told me that Doug One of Max’s often repeated pranks days but I have had a little diffi culty in knows two skills for driving — full ahead is to deliver the line theatrically, “Can coming up with amusing anecdotes about throttle and full down brake. It is no doubt you spare $5 for an old digger?” On one him. Either he has been able to engender for that reason that I have received advice occasion he was robed and in the County omerta — a code of silence about him- that if driving with him as a passenger I Court lift on his way to court and he came self or, as one person put it — or there should take a cervical collar. out with this observation. Another bar- are just no funny stories about him. But Doug is not fazed by judges. In one rister immediately interjected, “Don’t give there are certainly many stories about the case before the Full Federal Court when it to him. I can get you two old diggers for long cases in which he has been involved the Court wanted to move the case to a $8.” over the years. I am reminded about the different date, Doug objected strenuously. On another occasion Max was appear- Ultra-Tune litigation which went for about It must have been strenuously because ing in an extradition proceeding before six months before Justice Alex Chernov. afterwards he said to his junior, “Don’t Kevin “Maximum” Mason SM. Max Before the case began Doug and his junior ever talk to a judge like that.” addressed the Magistrate, “My client has had a long conference with the instructing heard Your Worship’s name. He consents solicitor. Towards the end of the confer- MAX PERRY to the extradition — but could he be given ence Doug announced, “I forgot to tell you Max Perry is the only one of our honoured a window seat?” I don’t settle cases.” And he didn’t. After guests who has not attained the exalted the fourth month Justice Chernov, being rank of senior counsel. In Max’s case it JACK FAJGENBAUM the wise judge that he is, suggested medi- doesn’t matter — he is in a class of his Jack Fajgenbaum was an academic for ation. That proposal was implemented and own, particularly having regard to his quite a few years before coming to the Doug sat down with his junior and started commitment to the Leo Cussen course Bar. Perhaps it took him a little longer to to draft terms. The junior remarked, “I and its participants over the years. I am build up the successful practice he now thought you didn’t settle cases.” Doug’s told that he has never banked any of the has. However, some years ago Jack and reply: “That’s right, I’m drafting terms cheques he has received over the years Tony Pagone were talking about their of surrender.” The mediation was held, for his participation in the Leo Cussen practices. Jack in his laconic and resigned no one surrendered. The case went a courses, as he regards such a practice as a end-of-the-world, life-treating-me-unfairly further two months and Doug’s client was form of forced saving. Max, have you ever way, said to Tony, “How is it that you successful. heard of stale cheques? have so much work and I don’t?” Pagone I should point out that Doug has skills Every Easter Max buys a job-lot of responded, “What can I say but that it that I lust after. No, I’m not referring to his large chocolate Easter bunnies from shows the imperfections in the market.” driving skills, which I’m told are less than Darrell Lea. On one occasion Michael Jack also has the unique ability of being average, but rather, to his skills as a touch Black, now an eminent Chief Justice, was able, unobtrusively, to go to sleep at the

33 Justice Buchanan and George Beaumont QC.

Jack Chernov, Peter Vickery QC, Jack Rosemary and Douglas Meagher QC, Elizabeth Hollingworth S.C., Jenifer Rush QC and Judge Davey. Batrouney QC, Kate McMillan S.C., and My Anhtran. dinner table sitting quite upright. Many He found reading in Jack’s chambers so pictures verify such conduct. excruciatingly boring because of the type Jack, of course, knows everything of work Jack did, particularly in relation I also wondered why Jack about everyone. As one of his friends put to bankruptcy and insolvency, that he came to the Bar having it, he is part of the great human drama turned to a life of crime. However, there chosen what I thought was — he knows everyone and everyone must have been something fecund about knows him. Jack’s chambers. Why? Because three a permanent academic Jack can also sometimes be distracted of his readers, Robin Brett, Leslie Glick career. I am told that one in the course of his submissions. On and Terry Murphy, celebrated the birth of the reasons he left one occasion he was opposed to Ray of their fi rst child shortly after reading in Finkelstein. He put a proposition to the Jack’s chambers. And of course Jack and Monash to come to the Bar court and Fink remarked in a loud voice Vivienne had their fi rst child after about was that he would be able “Wrong”. Jack refl ected and corrected 17 years of marriage. to wear a suit every day. the proposition. Jack continued, he put I am a little troubled about referring another submission on a principle of law to Jack Fajgenbaum as a legend because and Fink called out again “Wrong”. Jack St Jack is stretching the bounds of ecu- However, the most severe criticism was recoiled and again corrected himself. He menism. I also wondered why Jack came reserved for his “out-of-fashion medium started again stating another proposi- to the Bar having chosen what I thought length white socks”. tion and again, Fink called out “Wrong”. was a permanent academic career. I am But Jack is also an accomplished run- Whereupon Jack turned to Fink and in told that one of the reasons he left Monash ner, or at least was. Around 1980 there frustration cried out, “How come you to come to the Bar was that he would be was a Fun Run over eight miles, or should know everything.” able to wear a suit every day. I say 13 km, or thereabouts. 13,000 people One of my colleagues, Mark Weinberg, Jack Fajgenbaum is a well-known turned up and Jack fi nished 6,289, beating has had a distinguished academic, practis- cyclist along the bicycle tracks of Fricke QC (7,287) and Castan (7,794). ing and now judicial career, particularly Melbourne. I ought to tell you that Jack specialising in criminal law. I always dresses down for the occasion, which is GEORGE BEAUMONT wondered what interested Mark about probably why one observer of his cycling George Beaumont is, in my view, a most criminal law. Not so long ago he told me. referred to his cycling clothes as “daggy”. misunderstood person. His upfront and

34 David Shavin QC, Pamela Tate S.C. and Colin Golvan S.C.

Vivienne Fajgenbaum, and Diana and Jeffrey Sher QC.

Jeffrey Sher QC. replies Jack Fajgenbaum QC, Judge Hart and Philip Kennon QC. aggressive style disguises considerable board. George would order French cham- George is renowned for his aggressive ability and strategic judgment. However, pagne and usually on Air Niugini they and punchy style. It probably dates back I question his judgment. Towards the would bring him Australian champagne. to his days in primary school where it was end of 1979 George asked me if I would George would reject it, vociferously said that he could not eat his lunch until lead him in a case in Papua New Guinea asserting that he knew they had French after he had had a fi ght. It is said that even which would go for one or two weeks and champagne on board and it must be given now he prefers a fi ght to a good feed and would probably settle in the fi rst week. to him. It usually was. that he is uncommonly fond of a good In the events which occurred it went for George was well-known for his robust feed. three months and George and I became style of advocacy. It would often extend George Beaumont’s penchant for inter- the most frequent fl iers on Air Niugini to making faces. Howard Nathan was national travel, French wine and a good and Qantas between Port Moresby and often critical of Beaumont for doing feed is soon to be interrupted when he Melbourne. There is a lesson to be learned this and would tell Beaumont that he becomes a grandfather of triplets by cour- about how I came to be retained. George had had enough of his facial gymnastics. tesy of his daughter, Kareena. George, are was being led by a Sydney silk who George would rise to his feet, screw up you ready for a change of life? got upset with the judge one day and his face in the manner that only George muttered, he thought in an undertone, could and retort “But I didn’t say any- SUSAN CRENNAN “And this f**kwit calls himself a judge.” thing”. I went to a person who I thought would Next day the transcript appeared with George is unashamedly frank and be a reliable source for dirt on Susan those words indelibly imprinted in the direct in his views which are often said Crennan but the response was, “No one transcript. The moral of the story is keep to offend accepted principles of politi- has anything on Sue — she’s squeaky your thoughts to yourself. The Sydney cal correctness. When Pamela Tate, now bloody clean.” However, I can vouch for silk withdrew from the case and I was our eminent Victorian Solicitor-General, the fact that Sue has obvious magnetic retained. I always wondered whether became Convenor of the Women Barristers abilities other than in relation to law. George put him up to it. Association, she invited George to a WBA When we were in London in the mid- George has a penchant for fi rst class cocktail party to celebrate the opening of dle of 1989 in the middle of Victoria’s air travel and what goes with it. On our the legal year. George went and one of his longest running civil case relating to the regular trips to and from Port Moresby friends asked him whether he had been separation of oil and water technology on in 1979–80 there was a regular fracas on invited as an exhibit. offshore oil platforms (245 sitting days),

35 Graeme Cantwell, Ray Perry, Diana Rasheva and David Drake.

Lachlan Watts and Chris Connor. Robin Brett QC and Judge Waldron. Jeremy Ruskin QC, Caroline Kenny and Richard McGarvie.

Sue persuaded me to go one evening to a settling her drafts. We argued more about discothèque/nightclub in Covent Garden grammar than we did about law. where she was immediately surrounded In her capacity of Chairman of the Bar, Susan Crennan is by milling men. I made sure we were Sue received a number of ethical com- distinguished by becoming both home and in bed by 10 o’clock. It plaints. The most succinct complaint was the fi rst woman Chairman was during this period that Susan coined in the following form: what became a standard farewell from her of the Bar. She is very — “fl occulater”. For the uninitiated, which Dear Missus, much a renaissance I’m sure includes most of you, fl occulation My barrister his name ****. He no bloody woman with a passion is the process of holding particles of aque- good. He talks stupid. He a bastard. He want ous vapour in suspension. me pay $300. for English literature and We even went to the learned You fi x please. Old Norse. It was always Solicitor-General for the Commonwealth, a joy settling her drafts. David Bennett QC, with whom Sue read in I’m sure Sue fi xed it but I don’t know Sydney. The best he could do was tell us how. We argued more about that she was “not at all a frivolous young Susan appeared one day as junior with grammar than we did person”. I assume he meant then and not an eminent silk in the Practice Court on about law. now. However, on her fi rst day as a reader an application for an injunction which had with Bennett, who was trying to juggle fi ve its problems. The application was heard in equity judges sitting simultaneously at the morning and judgment was to be given corporations case before Barry Beach. the one time — a standard Sydney Friday after lunch. The silk told Sue, “If we get About ten silks and ten juniors were — Sue helped him out by doing six men- this injunction I’ll bare my bum in Bourke lined up and the silks approached Barry’s tions in fi ve courts in the one morning. Street.” Sue went back after lunch to hear associate to ask if they needed to robe. What an athlete! the judgment and came back to report to Word came back that they did not need Susan Crennan is distinguished by the silk the crowds were gathering outside to robe, so long as they all wore matching becoming the fi rst woman Chairman of Myers in Bourke Street for him. You will be socks. Why Barry was concerned about the Bar. She is very much a renaissance pleased to know that modesty prevailed socks was not clear. Sue asked her leader, woman with a passion for English lit- and the silk reneged on his promise. Douglas Graham QC to seek leave for her erature and Old Norse. It was always a joy In the mid 80s there was a substantial to appear un-socked but he declined to do

36 Dean at the University in Papua New when on the Bar Council for their elimina- Guinea Law School in 1966 the headline tion. So he asked the judge whether, as in The Sun Newspaper was “Professor similar heat was forecast for the following at 32 and he’s modest”. What made him day, would it be necessary to wear robes. change? Howard’s response, “Mr Nash you can Gerry had an extensive academic come in feathers if you like.” Tempting career before coming to the Bar both though it was, the former founding Dean in Papua New Guinea and at Melbourne of the Papua New Guinea Law School and Monash University where he became restrained himself from wearing a feath- Dean. On one occasion his academic ered headdress. They robed as usual. My career and Bar practice clashed. George recollection when I was in Papua New Hampel was sitting in the Practice Court Guinea with George Beaumont 20 odd hearing an application for an order nisi to years ago was that there was a form of review a decision from the Magistrates’ dress around the lower part of the body Court. Jack Hammond was for the appli- called “arse grass”. How would Gerry have cant and Hartog led Gerry for the suc- looked in arse grass? cessful informant. After Hartog made Let me conclude on this note. Since his submission, Hammond argued that this is a legal gathering I thought I should what Hartog had said was contrary to be careful not to be obscene. I don’t think the treatise of his learned junior, Nash on I have been, but that’s for you to judge. Magistrates’ Courts. Hammond said that The problem is — what is obscenity? I am he realised one could not rely on a text reminded of the case which was heard in until the author was dead, but that his Queensland many years ago around 1968 learned friend was not looking too well. where an actor was charged with obscen- Hartog responded vigorously: “He might ity for using the expression on the stage as well be dead! Certainly he’s wrong, and “f****** *****”. (The second word was I’m not responsible for the silly things my racist, not regarded as objectionable then juniors write in their books.” History does but unacceptable today). This gave rise not record what Hampel J did. to the porridge defi nition of obscenity. I I am reminded about the time Gerry think the play was “Norm and Ahmet”. was at a County Court Civil Call over. Many The actor was duly convicted and the counsel were trying to get their cases case went on appeal to the Queensland listed and it was a problem if your case Court of Criminal Appeal. In the course was going to take too long. Gerry reduced of argument the learned presiding judge so. History does not recall whether Barry his assessment of time for his defamation asked counsel — tell me what is the defi - Beach objected to Sue’s legs. case from four-to-fi ve days to a day or two. nition of obscenity — what is obscene? The judge, a little perplexed, asked: “How Counsel responded that a workable defi ni- GERRY NASH so?” Nash’s immediate response: “It’s only tion of obscenity was what would be your Gerry Nash had a distinguished academic a little reputation, Your Honour.” History wife’s response over the breakfast table. career but I’d forgotten that he practised does not record the outcome. The argument proceeded. That night at the Bar before expanding on his aca- On one occasion Susan Crennan was the judge decided that he would try the demic career. Gerry came to the Bar in opposed to Gerry before Justice Howard workable defi nition of obscenity the next 1959 and shared one room with young Nathan. It was a very hot day and Gerry morning and assess the result. He sat Hartog Berkeley in Condon Chambers at was suffering very much in the heat, being down at breakfast and his wife said “What 469 Chancery Lane. It was opposite the fully robed. He knew Howard Nathan’s would you like, dear?” His response was back entrance of Selbourne Chambers. views about robes and had worked hard “I’d like some f****** porridge.” His wife’s Then, as now, accommodation for bar- response was, “But you don’t like porridge, risters was scarce and Mr Condon, the dear.” I think the appeal was upheld. solicitor, let out rooms in his offi ce. On the One has to be careful of one’s use ground fl oor there were four small rooms. I am told that when of language because it means different Gerry and Hartog shared one, Allayne Gerry was appointed as things to different people. A good exam- Kiddle occupied another. My subsequent ple, is the late Queen Mother who had a researches have disclosed that the other Foundation Professor and partiality to gin and tonic and whose staff two were occupied by Garrick Gray and Dean at the University were composed signifi cantly of men of the Garth Buckner. When you entered the in Papua New Guinea gay persuasion. One evening the Queen ground fl oor there was a printer on the Mother was lusting for a gin and tonic. She left for whom you rang a bell for service, Law School in 1966 rang for her staff but there was no answer and there were the barristers on the right, the headline in The again and again. Finally she got through. and heaven knows what you had to do to Sun Newspaper was She was heard to say, “I don’t know what attract their attention. Probably wave a you old Queens are doing down there, but brief. “Professor at 32 and he’s this old Queen needs a gin and tonic.” I am told that when Gerry was modest”. What made him I think I now need one too. I drink a appointed as Foundation Professor and change? toast to our eight living legends. 37 Articles The Fight Against Terrorism: One Step Forward, Two Steps Back By Yusuf Zaman, member of the Victorian Bar’s Human Rights Committee

We can afford no liberties with liberty This article simultaneously pursues a itself. two-fold objective: it expounds the sub- missions made by the Bar on the ASIO Bill WENTY-TWO July 2003 marked and then examines the extent to which a watershed in the legislative his- these submissions have been adopted in Ttory of Australia. On that day, the Act. the Australian Security Intelligence Organisation Legislation Amendment THE BAR’S SUBMISSIONS VIS-À-VIS (Terrorism) Act 2003 (the “Act”), the leg- THE ACT islative cornerstone of the Commonwealth The Bar took a stand on the following fea- government’s anti-terrorism strategy, tures of the ASIO Bill: became law. The stated purpose of the Act is to (1) Compulsory Detention establish a mechanism for the gather- In order to question a person under the ing of intelligence relating to terrorism ASIO Bill, he or she could be summonsed offences. It focuses on persons who may to appear before a questioning authority, have information about such offences, but or in certain circumstances a warrant its mandate does not extend to persons Yusuf Zaman, member of the Victorian could be issued for the person’s arrest. suspected of actually perpetrating terror- Bar’s Human Rights Committee In essence, the legislation sanctioned ism, unless they are between 16 and 18 the possible compulsory detention of per- years of age. the ASIO Bill, and this inquiry was inun- sons, up to a maximum continuous period The Act has myriad controversial fea- dated with a host of submissions from of seven days, for the purpose of collect- tures that mark a departure from estab- community organisations, professional ing intelligence considered important in lished civil libertarian principles. These bodies and concerned individuals. relation to a terrorist offence. include the possibility of compulsory In late October 2002, the Victorian The crucial point was that persons detention for up to seven days of persons Bar was given the opportunity to make a potentially detainable under the ASIO who may have information relating to a submission to the Senate Committee. The Bill did not have to be suspected of actual terrorist offence; the circumscribing of Human Rights Committee of the Bar met involvement in terrorism activities; rather, rights to legal representation; and the on 6 November 2002 and unanimously the mere possession by a person of infor- withdrawal of the right to silence and the objected to the ASIO Bill as an unwar- mation “important in relation to a terror- privilege against self-incrimination. ranted and serious intrusion into rights ism offence”, was considered a suffi cient On account of these unprecedented held sacred by Australians. trigger for compulsory detention. features, a storm of controversy brewed On 8 November 2002, the Bar Council The Bar took the stand that such in the country when the Act fi rst saw the adopted the detailed resolution of the a regime of compulsory detention for light of day as the Australian Security Human Rights Committee, which included persons themselves not suspected of Intelligence Organisation Legislation a list of the particularly objectionable ele- any criminal activity was foreign to the Amendment (Terrorism) Bill 2002 (the ments of the ASIO Bill, as the Bar’s formal Australian legal system, an integral ele- “ASIO Bill”). submission to the Senate Committee. ment of which is the principle of civil After its passage through the House of Further, on 22 November 2002 the liberties. Representatives, the ASIO Bill was signifi - Chairman of the Human Rights Committee, Notwithstanding the view that desper- cantly rebuffed in the Senate, as the oppo- Jacob Fajgenbaum QC, and the Chairman ate times often call for desperate meas- sition strove to de-fang it of its particularly of the Criminal Bar Association, Lex ures, the Bar argued that the legislation extraordinary features. The Senate’s Lasry QC, represented the Bar at the failed to make a case for such a drastic Legal and Constitutional Committee (the public hearing conducted by the Senate abrogation of the cherished right of indi- “Senate Committee”) held an inquiry into Committee at Melbourne. vidual liberty.

38 In his oral evidence before the Senate before a serving or retired judge of a supe- ditional access to legal representation. On Committee, Fajgenbaum QC proposed rior court. They further recommended the plus side, the procedure for denying an alternative mechanism to compulsory that a panel of judges be set up for this access to legal representation has been detention. This mechanism sought to har- purpose. Reference was also made to the made more stringent. However, it seems monise the importance of effective intel- anti-terrorism provisions of the Canadian this gain can at best be described as a ligence gathering with the equally crucial Criminal Code, which direct the question- Pyrrhic victory. need for protecting human rights. ing of persons before a judge. Before examining the question of The proposed mechanism draws inspi- The Act has made certain conces- denying access to legal representation, ration from the Canadian response to the sions on this point. It defi nes a prescribed it is pertinent to refer to the manner in events of September 11, 2001. According authority as a retired judge of a superior which the Act actually allows access to to an amendment to section 83.28 of court. In circumstances where there is an a lawyer. the Criminal Code of Canada, a person insuffi cient number of retired judges, the According to the Act, a detainee must who may reasonably be believed to have Minister may appoint as the prescribed inform the prescribed authority of the direct and material information relating authority a serving judge of a State or identity of the lawyer whom the person to an executed or potential terrorism Territory Supreme Court or District Court proposes to contact. Presumably, if the offence, or may reveal the whereabouts (or an equivalent). detainee does not know a lawyer, or is of an individual suspected in connection Finally, if there is an insuffi cient unable to supply the identity of such with the commission of that offence, may number of the aforesaid judges, the a person, the only manner in which he be subjected to an order for questioning Minister may appoint the President or a or she may obtain legal access is if the before a judge. Deputy President of the AAT as a pre- prescribed authority makes a direction However, a judge who orders a person scribed authority. permitting the detainee to contact any to appear for questioning cannot order In view of the above amendments to person, who may in turn help the detainee that the person be compulsorily detained the Act, the Bar’s concerns about the identify a lawyer. At best this is a most for this purpose. This is because the independence of the prescribed authority circuitous way of obtaining legal access; at Canadian legislation does not envisage a have been largely met. worst, it may be unworkable. system of compulsory detention for a per- Returning to the point about denial son subjected to an order for questioning. (3) Length of Custody of legal access, the ASIO Bill gave the The only exception to the above rule The ASIO Bill provided that persons sus- Minister the power to specify in the occurs when a person breaches the order pected of having information relating to warrant that a detainee was not to have for questioning and fails to appear before terrorism offences could be detained for access to an approved lawyer for a period a judge. Section 83.29 of the Criminal periods of up to 48 hours under a warrant, of up to 48 hours. Code of Canada provides that in such with additional warrants extending the According to the Act, it is the pre- circumstances a judge may sanction the maximum continuous period of detention scribed authority to whom a request to arrest of the person. Once the person is up to seven days. deny a detainee access to a lawyer of arrested and brought before a judge, he In addition to its in-principle opposi- choice is to be made. Substituting pre- or she may be released and directed to tion to the concept of compulsory deten- scribed authority for the Minister clearly appear for questioning, or be remanded tion, the Bar condemned the potential marks an improvement over the proce- into custody for this purpose. length of such a period of incarceration. dure specifi ed in the ASIO Bill. The Bar submitted that the Canadian While recording its opposition, the Bar However, once the request is made, approach struck an equitable balance stressed the point that the detention was the prescribed authority may direct that between intelligence gathering and civil being envisaged in respect of persons sus- a detainee be denied access to a lawyer liberties. Therefore, it was recommended pected of having information about ter- of choice. Before making this direction, that the ASIO Bill be amended on such rorism offences and not those who were the prescribed authority must be con- lines. suspected of actual involvement in such vinced that because of the circumstances However, the Act has not taken into nefarious activities. relating to the lawyer, contact between account the concerns of the Bar, as well as Notwithstanding the Bar’s opposition the detainee and the lawyer will lead to countless other individuals and organisa- to the length of any proposed detention, alerting a person involved in a terrorism tions, on the issue of compulsory deten- the Act has maintained the maximum offence that the offence is being inves- tion. It continues to maintain a regime of continuous period of seven days for com- tigated or the destruction, damaging or possible compulsory detention for persons pulsory detention of a person arrested alteration of a record or thing that the subjected to a warrant for questioning. under the Act. detainee may be requested to produce. The denial of access to the lawyer in (2) Prescribed Authority (4) Access to Legal Representation question will be in the nature of a blanket The ASIO Bill created a prescribed The ASIO Bill provided that in certain denial, and not merely for a set period. authority before which persons were to circumstances a detainee could not have Of course, the detainee shall have the be questioned. A prescribed authority access to legal representation for up to 48 right to seek another lawyer of his or was defi ned as a deputy president, senior hours after his or her arrest. her choice, presuming the detainee can member or member of the Administrative The Bar opposed this restriction on identify such a person, or if the prescribed Appeals Tribunal (“AAT”). the fundamental right of every person to authority makes a direction to facilitate Appearing before the Senate have ready access to legal representation, this objective. However, the new lawyer, Committee, Fajgenbaum QC and Lasry no matter how heinous the charge against too, could be barred from offering his or QC recommended that the questioning of him or her. her services by virtue of a fresh request to persons under the ASIO Bill be conducted The Act has retained a regime for con- the prescribed authority.

39 (5) Criteria for a Legal Representative ingly, the Bar condemned it as a distortion of contact with his or her client, was One of the particularly objectionable fea- of an integral feature of the Australian to be effectively neutralised during the tures of the ASIO Bill was that it envisaged legal system, namely the right to confi - course of questioning. He or she would a panel of approved lawyers. Only a lawyer dentiality of legal advice. have no right to intervene in the client’s from this panel could represent persons In his address to the Senate Committee, questioning or to address the prescribed being questioned under the provisions of Fajgenbaum QC pointed out that the authority, save to request clarifi cation of the ASIO Bill. Canadian legislation imposes no limits on an ambiguous question. And if the pre- To be an approved lawyer, certain cri- the ability of a person to confer with his or scribed authority found the legal adviser’s teria required fulfi lment. A practitioner her lawyer. conduct to be unduly disrupting, he or needed fi ve years enrolment as a legal For its part, the Act takes an approach she could be removed from the place of practitioner of a federal court or of the that is opaque at best and unworkable at questioning. Supreme Court of a State or Territory, worst. The Bar recorded its opposition to the and the successful clearance of a secu- On the one hand, there is no concession above provisions on the ground that such rity assessment, as well as “any other made on the point of monitored contact a potent truncation of the role of a legal material” considered relevant to approve between a person and his or her lawyer. representative would virtually denude the practitioner. The task of designating But curiously enough, the Act also seeks a person detained under the Act of the approved status to a lawyer was assigned to uphold the law relating to legal profes- most basic right of legal representation. A to the Attorney-General. sional privilege. serious infraction of human rights at the The Bar strongly took issue with the It is hard to imagine how the twain shall best of times, to virtually abolish the right need for lawyers to obtain security checks meet. to legal representation in circumstances and meet other vague and broad criteria The dilemma is brought to a head by where a person could potentially be ques- in order to represent persons being ques- the Protocol made pursuant to section tioned on a gamut of sensitive issues, with tioned under the ASIO Bill. 34C(3A) of the Act. the prospect of severe penalties hanging Both in its written submissions to The Protocol, which was tabled in as the sword of Damocles on his or her the Senate Committee and at the public Parliament on 11 August, interprets moni- head, was particularly unwarranted. hearing, the Bar took the position that toring as the exercise of contact between At the hearing before the Senate it should be suffi cient for a lawyer of a a lawyer and his or her client while in the Committee, Fajgenbaum QC pointed out certain years’ practice and otherwise good presence of offi cers having authority under that in the Canadian approach, a person standing to qualify as an approved lawyer. the warrant for questioning, unless the brought for questioning has the right to To expect lawyers to go through a vetting prescribed authority directs otherwise. retain and instruct counsel at any stage exercise, and that too partly at the hands The effect of the above provision of the of the proceedings. No restrictions have of a Minister of the Crown, namely the Protocol will be to render nugatory section been placed on this right. Attorney-General, as opposed to a judicial 34WA of the Act. It begs the question how On this issue, the Act has made no con- referee, made the whole process quite legal professional privilege could have any cession. The restrictions proposed by the objectionable. meaning in an environment where contact ASIO Bill remain fi rmly in place. The Act has adopted these submis- is being physically monitored. In addition, there is a new curb on the sions. It defi nes a lawyer of choice as a Arguably, the Protocol is in irreconcil- ability of lawyers to discharge their pro- person who is enrolled as a legal practi- able confl ict with the section 34WA of the fessional obligations. tioner of a federal court or the Supreme Act. It must give way, unless the concept According to section 34VA of the Act, Court of a State or Territory. A lawyer of of legal professional privilege is to be lawyers’ access to information which choice need meet no other criteria. turned on its head. is otherwise controlled or limited on security grounds, may be prohibited or (6) Curtailment of Legal Professional (7) Role of Lawyer of Choice regulated in connection with proceedings Privilege The ASIO Bill introduced a set of provi- for a remedy relating to the issuance of a The ASIO Bill authorised for the monitor- sions that had the effect of consigning the warrant or the treatment of the detainee ing of any contact between a person and role of an approved lawyer to that of an under the warrant. his/her lawyer; however, no defi nition was emasculated bystander. provided for the term “monitoring”. A lawyer, whose role was already (8) Self-incrimination and the Right Arguably, monitoring could be as non- circumscribed due to the monitoring to Silence intrusive as the video recording, without The ASIO Bill discarded the privilege sound, of contact between a lawyer and against self-incrimination and the right of his or her client. Then again, it could be The Act is a harsh piece a person to remain silent. as far-reaching as the physical presence of Accordingly, any person appear- ASIO offi cers during such contact. of legislation. It clearly ing before a prescribed authority for By not defi ning monitoring, it may have constitutes a drastic questioning could not refuse to provide been intended to leave open all options, aberration from inalienable any information, record or thing on the so that ASIO could do what the inimitable ground that doing so could incriminate Bard described as, “the bloody book of law civil libertarian tenets that the person. The penalty for refusing to you shall yourself read in the bitter letter have formed the bedrock answer a question was imprisonment for after your own sense”. of Australian laws dealing a maximum of fi ve years. On the face of it, this provision struck The logic for scaling back these a blow at the time-honoured principle of with security and public important rights was rooted in the need legal professional privilege. Not surpris- order issues. to maximise the likelihood of obtaining 40 information and material to avert or solve Australia, so that a fair balance could be (11) Children terrorism offences. struck between the needs of security and The scope of the ASIO Bill extended to The Bar opposed the withdrawal of civil liberties. persons between 14 and 18 years of age. these rights on the ground that the move The submissions of the Bar did not fi nd However, persons between these ages constituted an extreme and unjustifi ed favour with Parliament. The Act maintains could only be compulsorily detained if reaction to a threat that, although seri- the position refl ected in the ASIO Bill. they were actually suspected of involve- ous in nature, was largely amorphous in Consequently, evidence sourced from the ment in terrorism. shape and of questionable imminence. information obtained from persons ques- Persons under the age of 14 years To withdraw the privilege against self- tioned under the Act can be used against could not be made subject to a warrant for incrimination and the right to silence in them in other legal proceedings. questioning under any circumstances. respect of persons who were themselves The Bar did not make any written sub- not suspected of involvement in terrorism (10) Reverse Onus of Proof missions to the Senate Committee on the offences was, in the view of the Bar, an The ASIO Bill put the onus of proof onto provisions relating to children. unwarranted detraction from fundamen- the shoulders of a person who answered However, at the public hearing repre- tal civil liberties. questions in the negative. Such person sentatives for the Bar briefl y expressed Fajgenbaum QC pointed out to the was required to provide evidence that their views on this issue in answer to Senate Committee that the Canadian he or she did not have the information or questions posed to them. legislation had withdrawn the privilege thing requested of them. On the one hand, Fajgenbaum QC took against self-incrimination; however, it still The Bar opposed this innovation on the view that if persons aged between 14 allowed a person to refuse to answer ques- the ground that it would be extremely and 18 years were suspected of actual tions relating to privileged information. It diffi cult for a person to discharge the involvement in terrorism, he saw no prob- was recommended that such an approach reverse onus of proof. Short of mak- lem with their compulsory detention. be followed in the ASIO Bill. ing assertions to the contrary, a person Elaborating this issue further, Lasry Nevertheless, the Act enshrines the would be hard-pressed to provide evi- QC made the point that, whereas it was withdrawal of the privilege against self- dence that he or she did not have any one thing to detain persons aged between incrimination and the right of silence, information relating to a terrorism 14 and 18 years if they were suspected of without making an exception for privi- offence. It was akin to providing evidence involvement in terrorism activities and leged information. that some information was not in the mind were charged as such, it was quite another of the person. thing to detain such persons simply for an (9) Use of Information At the hearing before the Senate intelligence-gathering exercise. Under the Having withdrawn the privilege against Committee, the point was thrashed out scheme proposed in the ASIO Bill, it was self-incrimination, the ASIO Bill sought further. In response to questioning from possible that at the end of the question- to balance the pendulum by granting the Chairman of the Senate Committee, ing period, the 14-18 year olds may not immunity in relation to any information Lex Lasry QC conceded that, depending actually be charged with involvement in obtained from questioning a person. But on the manner in which it operated, the terrorism. this immunity was of limited effect. reverse onus might not be relevant in pro- In the fi nal analysis, the Bar’s repre- As pointed out by the Bar in its submis- ceedings under the ASIO Bill. sentatives recorded their opposition to sion to the Senate Committee, the immu- Lasry QC explained that if questioning any move to detain persons under the nity granted by the ASIO Bill related only under the ASIO Bill followed the rules age of 18 years for intelligence gathering to direct use of any information obtained of a normal investigative hearing, like a purposes. from a person who was questioned under royal commission, the mere assertion by The Act has made the concession that a warrant. a person that he or she did not have the a person must be between the age of 16 Such information could not be used sought-after information, might serve as and 18 years, as opposed to the earlier in any criminal proceedings against the a suffi cient answer. It would then be up threshold of 14 to 18 years, before he or person, save proceedings concerning the to the person exercising authority under she can be taken into custody for intelli- giving of false evidence during question- the warrant to provide evidence to rebut gence-gathering purposes if suspected of ing. the assertions made by the person being involvement in terrorism. However, unlike the Canadian questioned. Persons under the age of 16 years can- approach, there was no immunity granted Fajgenbaum QC made the further point not be detained under any circumstances. from derivative use of the information that the practical effect of the reverse obtained from the person. The ASIO Bill onus of proof would be to require the CONCLUSION left open the possibility that evidence person being questioned to give evidence The Act is a harsh piece of legislation. derived from evidence obtained from the in his or her favour. Such a requirement It clearly constitutes a drastic aberra- person during his or her questioning could would not have arisen in the absence of tion from inalienable civil libertarian be used against the person in subsequent the reverse onus of proof. tenets that have formed the bedrock of criminal proceedings. In view of the ambiguity about the Australian laws dealing with security and The Bar took the position that, cou- manner in which the questioning process public order issues. pled with the withdrawal of the privilege would operate under the ASIO Bill, the There is an old saying that laws too against self-incrimination, the failure to Bar maintained its opposition to the intro- gentle are seldom obeyed; too severe, grant derivative use immunity marked duction of the reverse onus of proof. seldom executed. a signifi cant erosion of crucial civil The Act has not made any concession The Bar hopes that there will be scarce rights. It was recommended that the on this point, and the reverse onus of need for the implementation of this severe Canadian approach be adopted in proof remains in force. legislation.

41 News and Views Justice Cabaret: Life in Law Presented by the Victorian Law Foundation and National Trust of Australia (Vic), Storey Hall, RMIT on Thursday 11 September 2003.

Chief Justice John Phillips performs.

Judge John Smallwood does Ned Kelly. AS September 11 an auspicious swung into action. The evening was a date for a “Justice Cabaret”; to joint presentation of the Law Foundation Wfarewell the retiring Chief Justice, and the National Trust of Australia. John Haber Phillips? The superstitious and The surplus from the dinner/cabaret went soothsayers of the law had their doubts. to the funding of the new Law Museum Would there be bad karma at Storey Hall? to be housed in the old Magistrates’ Court The answer was a resounding no, with the in Russell Street, now the property of night being a great success and a tribute RMIT. to the career of John Phillips. There was much discussion at numer- The idea was somewhat unusual. A ous meetings, a rehearsal of sorts, and cabaret to farewell a Chief Justice? Surely suddenly there were performers, a pro- this was not the media’s preconception of gram and a show. the legal profession or “industry” for that As the photographs contained herein matter? Especially when the Chief was to testify, there was a large and happy crowd sing? watching the singing, acting, musical and But Professor Kathy Laster of the comedic talents of the legal profession. Victorian Law Foundation hatched the The cabaret loosely followed the career Professor Kathy Laster. idea many months ago and a committee of the Chief Justice — with the empha-

42 sise on “loose”. Judge John Smallwood, grandly attired in the armour of Ned Kelly, co-compared with talented solicitor William Mulholland. “Ned” searched the Program audience for the Chief Justice. After many false starts the Chief was “found” and duly emerged on stage to sing a bracket of In the Foyer songs entitled “Take Me To Your Heart”. Jugglers — Victoria Marles and Bryce Menzies The audience did just that. Squeeze Box — Russ Kelly Those present were then transported Clown — Liza Newby back to the school days of the young John, as he tentatively entered the offi ce Ned Kelly and the Search for the Chief Justice of the Career Brother at De La Salle Ned Kelly — John Smallwood J College, to discuss his future prospects. William Mulholland — as himself Ideas of becoming an opera singer, or renaissance man were fi rmly beaten out “Take Me To Your Heart” of the young Phillips with the familiar Solo — The Hon. Justice John Harber Phillips AC, Chief Justice of Victoria words “Put out your hand”. Finally it Accompanist — Grant Johnson was decided he was to get a good job in the State Public Service — the Chief “The Boy Who Wanted More” Justice of Victoria. Paul Elliott QC made Written and performed by a good “Career Brother” and Mark Robins Paul Elliott QC and Mark Robins was the spitting image of the young Phillips. “Our Favourite Things” The night was noteable in that the Teacher — Kathy Laster three Chiefs all performed. After the Chief Student — Lucia Clarke Justice had sung, Chief Judge Rozenes Practitioner — Elizabeth Wentworth and Chief Magistrate Ian Gray joined Accompanist — Grant Johnson Justice Howard Nathan in a rendition of “Three Little Judges”. Gilbert and Sullivan “I am Lawyer” may well have turned over in their graves, The Legal Women’s Choir with but their Honours and His Worship per- The Allens Arthur Robinson House Band formed with gusto and aplomb, and some- times in tune. “Three Little Judges Stern” The Gilbert and Sullivan theme con- Judge 1— Ian Gray tinued with Judge Michael Strong’s clever Judge 2 — Michael Rozenes adaptation of “The Punishment Fits the Judge 3 — Howard Nathan Crime”. Judge Strong does have a very Accompanist — Grant Johnson good voice and his version of the famous with The Aliens Arthur Robinson House Band “Trial by Jury” song brought the house down. He was ably accompanied by Grant “Punishment Fit The Crime” Johnson and the very talented Allens Solo — Judge Michael Strong Arthur Robinson House Band. Accompanist — Grant Johnson Then some professionals appeared with The Allens Arthur Robinson House Band on stage, that is to say, professional entertainers in the form of Jon Faine Ned Kelly Soliloquy and comedian John Clarke. A sparkling Ned Kelly — Judge John Smallwood exchange of Clarke’s “15 minutes” at law school ensued. The next morning, on his “Tenterfi eld Saddler” morning radio show, Jon Faine was very Solo — William Mulholland complimentary about the level of theatri- Accompanist — Grant Johnson cal talent to be found in legal ranks. with the Aliens Arthur Robinson House Band The evening ended with compere William Mulholland singing “Tenterfi eld The Allens Arthur Robinson House Band Saddler” which was a fi tting fi nale. Piano — Melanie Bond A great deal of hard work went into the Trombone — Rosemary Bryant-Smith organisation of the evening and the pro- Lead Guitar — Sam Cadman gram listed on these pages testifi es to the Trumpet — Blair Day number of people involved. Bass Guitar — Melissa Foong It was indeed a fi tting tribute to the Drums — Darren Seknow career of our retiring Chief Justice, and it was obviously both an amusing and emo- tional evening for him.

43 Mark Robins, Elaine Melksham, Paul Elliott QC, Justice Howard Compere William Mulholland. Ned with Justice Linda Dessau. Nathan, Chief Judge Rozenes, and Chief Magistrate Ian Gray.

Judge Liz Gaynor, Judge Brendon Kissane, Fiona Smith, John Smallwood, Judge Judge Irene Lawson, Judge Margaret Rizkalla and Julian Meryl Sexton and Barbara Dan and Anne Sweeney, John Briffa, Clare Darmanin, Janet and Fitz-Gerald M. Rozenes. Max Grant, and Terry Victor Borg.

Professor Kathy Laster, David Anne and Judge Michael Strong, Kevin Lyons, Judge Rachel Thomson and Leanne Newson. and Judge Wendy Wilmoth. Lewitan, Helen Phillips and Patrick Tehan QC.

Judge Margaret Rizkalla, A quizzical John Clarke. Elizabeth Brophy, Margaret Barbara Cotterell M and Jacinta Lodge and Robyn Wheeler. Heffey M. Dimity Lyle, Justice Robert Osborn and Anthony Southall QC.

Alistair Urquhart, Rowland Ball Susan Phillips, David Collins S.C., Kathryn Dalton, Tabitha Lovett, Ned with President John and Mary Urquhart. Matthew Barrett and Aileen Ryan. Winneke.

44 Life is a … Justice Cabaret

“I am lawyer, hear me ROAR …” sang Law Foundation, and a genuine talent normally on the other side of the bench, a bunch of enthusiastic female lawyers, in her own right, donning mortarboard we were all keyed up like teenages when to the tune of Helen Reddy’s “I am and academic robe, urging a bit of statu- we strode out on stage to be judged in a Woman”. tory interpretation on the audience thus somewhat different setting. In a night that drove the ghost of Ned “When you read you begin with A, B, C. We sang of women in every role: Kelly (hilariously played by Smallwood But in law you begin with Section 3 …” J) to comment, “This room’s full of She soon realizes her audience just isn’t And the Judges pull a face when I go to sheilas! I thought this was a night for paying attention and instead ignores cite a case, may it please them but they lawyers? … Don’t they go off and have them completely and dreams of a few of still don’t understand … babies and neglect their career? How her “Favourite Things” — telling them in does the female mind deal with such no uncertain terms at the end she just I will take your full instructions, without intellectual rigour … how does the fairer doesn’t give a stuff! causing any ructions and I won’t skip sex cope with the adversarial situations Kathy was followed by the cheeky details if its Legal Aid … …?” and talented tones of Lucia Clark (sing- (Little does poor Ned know that ing of the favourite things of students) I am judge now watch me rule, on every women sometimes revel in that kind of and Elizabeth Wentworth (the favourite legal windbag fool … underestimation from an opponent!) things of a practitioner) — it was an In a night of talent and enthusiasm, a entertaining and lively look at what We had a great time, tried diligently bunch of legal women had only to cope really goes on in the private legal mind. to follow the choreography we had been with the intellectual rigours of song lyr- A hard act for the choir to follow! given, and got enough laughs to think ics. Under the careful and extremely Whilst we spent the previous eight or so the audience understood what we were patient tutelage of choirmaster and sing- weeks cursing the evenings we set aside singing (or was it the big screen on the ing teacher Julian Bailey, we learned to for choir rehearsal (or at least, the ones side of the stage …). emphasis vocals, enunciate consonants, we actually turned up to), it is a great A good time was had, and an affec- ROAR on cue, ham it up and generally reminder that there is a kind of adrena- tionate farewell given to our retiring have a good time. lin other than the adrenalin we get from Chief Justice, by all. We followed the great talents of court appearances, silks and juniors, Professor Kathy Laster of the Victorian solicitors and researchers, and those Carolyn Sparke

The Legal Womens Choir — “I Am Lawyer”.

45 Judge Michael Strong — “Punishment Fits the Crime”.

Chief Judge Rozenes, Chief Magistrate Gray and Justice Nathan serenade.

Kathy Laster, Liz Wentworth and Lucia Career Brother Paul Elliott QC with Jon Faine reminisces on the law. Clarke — “Our Favourite Things”. young John Phillips — Mark Robins.

Lawyer’s Bookshelf Continued from page 58 fi nd references to a particular topic within other topics and otherwise to cross-ref- erence terms. The result may be that an important principle is lost to a reader due to their lack of knowledge as to its precise nomenclature: for example, what propor- tion of non-criminal practitioners would know to look for the heading “Anunga rules” when dealing with the diffi culties faced by an Aboriginal defendant with- out a full grasp of the English language? References to other topics which appear in the content of a heading go some way towards rectifying that problem. That minor problem aside, the work is a handy reference for criminal practitioners. For those who only stray occasionally into criminal practice, it is an indispensable tool which explains fundamental concepts in plain language and provides compre- hensive references to primary materials from which submissions can be drawn. Stewart Maiden

46 News and Views

Jusice Susan Kenny, Justice Marilyn Warren, Justice Katharine Williams, Justice Julie Dodds-Streeton and Justice Rosemary Balmford. Right: Fiona McLeod and Robin Brett unveiling the portrait. Unveiling of Women Justices of the Supreme Court of Victoria On 9 September 2003 the second (photographic) portrait in the series of “Images of Women in the Law” was unveiled in the foyer of Owen Dixon West. Frances Millane welcomed guests with these opening remarks.

Y task tonight is to say something 2001. The intention then as now was to and each time I’m reminded that because about the series and the visual enhance the visibility of women lawyers, of its subject matter and the medium used Martist, Murray Yann. Our newly to affi rm their status in the law and to it is an arresting and unique image of a elected Bar Council Chair, Robin Brett QC, provide an opportunity for the Victorian woman in the law. will tell you about their Honours’ achieve- Bar to honour the many women who have I’ve also seen numerous other people ments before he and Fiona McLeod, been and who are signifi cant contributors stop to study the work and the accompa- the Convenor of the Women Barristers to the law. nying plaque. I don’t know whether they Association unveil the portrait. Many of those present tonight will have were pleased by it or not but what I do The Images of Women in the Law series been present in June last year when the know is that the image has brought to was established by the Victorian Bar and portrait of Justice Brown was unveiled. their attention the celebrated role women the Women Barristers Association in late I have passed it many times since then have in the law.

47 that convey to the viewer as much as pos- sible about the subject within the image and enables the viewer, in his words “… to almost know the subject intimately with- out ever having met …” them. I might say here that that’s something we didn’t tell their Honours beforehand. When I asked Murray about what he hoped to portray in this portrait he said — a feeling of success and achievement coupled with an air of integrity and style. He wanted to produce a work with a “painterly renaissance” feel, not unlike the old masters, which through its rich, deep and regal colour promotes warmth toward the judges and an air of power. Frances Millane speaking. Robin Brett speaking. Thank you, Murray, because I think this audience will agree with me once they As you know the second portrait is of lar, in the Supreme Court. The desire to have seen the portrait that you have met, one former and the four current women make this apparent was a signifi cant fac- and exceeded, all of your objectives. Justices of the Supreme Court of Victoria tor in commissioning this work. Finally, I take this opportunity to — Justice Susan Kenny who is now a As a general rule judges have thank Miguel Belmar Salas and Alexandra Federal Court Justice, Justice Rosemary the fi nal say. Accordingly, we are par- Richards QC who as members of the Balmford, Justice Marilyn Warren, ticularly grateful to you all for your willing Equality Before the Law Committee have Justice Julie Dodds-Streeton and Justice participation and for allowing Murray the brought this project together. And I’d also Katharine Williams. artistic freedom to create an image of his like to thank Anna Whitney who for the When I say their names aloud, no doubt making. second year in a row has organised this like me you experience a real sense of the I need to say something about Murray function. growing presence of accomplished women and the work he has given to us. Murray lawyers in superior courts and, in particu- has a special interest in portrait works

The Ballad of Briginshaw

When I fi rst started in the law Now Mr B had evidence Adultery claim needs fi nding stout, I’d never heard of Briginshaw Of agents brought (at great expense) It’s proof beyond a reas’n’ble doubt.” But very soon I found that case Across from Melbourne to obtain Must always have an honoured place Admissions from th’ alleged swain But once she’d fi nished with the law When counsel argues the defense And Mrs B. But they were smart, What fortunes did Fate have in store Of clients ’gainst whom evidence Enough at least to take no part For Mrs B? Did true love fi nd Most weighty and germane is stacked In any written self damnation. Her happiness, a husband kind? Of breaches of the TP Act. For Mr B — much consternation! Could she in wild imagination “Your Honour must apply the law The agents, fi nding this no joy, Foresee her name around the nation As it’s laid down in Briginshaw.” Resorted to a well worn ploy; Invoked in many courts of law So goes the plea, throughout the Bar, A “verbal” they alleged took place Consid’ring breaches of Part IV “You must read 60 CLR.” When they met suspects face to face. Six decades hence? But what if chance Had not enticed her to that dance The case concerns alleged romance So did she fall to Cupid’s spell? In Devonport, that is the toast Said to have started at a dance Six judges said, “I cannot tell.” Of Tassie’s wondrous North West Coast? In Devonport where Mrs B The trial was heard by Martin J. Was pining for male company. His Honour thought he couldn’t say Perhaps in other litigation She’d fl ed both Mainland and her mate Which one was truthful and which not A learned judge’s explanation And clear enough the married state Thus “Case Dismissed” without a blot Would clarify and make quite certain No longer held much charm for her. Upon repute of Mrs B, How much an evidentiary burden But yet she did on oath aver The co-respondent too was free. Is borne in civil case. But yet That even tho’ she’d chastely kissed I doubt that we would ever get The co-respondent, they had missed The High Court held this rinky dink, A human drama of the law Out wholly on adultery; All slightly puzzling, one might think. Like that portrayed in Briginshaw. Of guilt in that regard she’s free. Trial judge had said “If civil cause The husband wins, but I must pause; Peter Heerey

48 News and Views The Bar Care Scheme

HE Victorian Bar maintains a The Bar Care service is provided by services or treatments are needed. The counselling service for members the Cairnmillar Institute (“the Institute”). counsellor may then arrange for subse- Tof the Bar and their immediate Inquiries to the Institute during business quent consultations or referrals to other family – the Bar Care Scheme. The hours will be attended to immediately service providers. The cost of the initial Scheme recognises that the health and by the managing consultant and within consultation and referral will be met by well-being of a member can be adversely one or two hours outside business hours. the Bar Council. The cost of any sub- affected by the pressures of professional Appointments will be made within 24 sequent consultations by the Institute and personal life and that the Victorian hours of the initial contact. or another service provider will be the Bar has a role to play in ensuring that The scheme is available to any mem- responsibility of the member and may assistance is available to members who ber of the Bar and their immediate fam- be reimbursable from government or require it. ily. private health insurance schemes. The objective of the scheme is to A member who wishes to access the General enquiries regarding the enable members to immediately access scheme should contact the Institute on scheme may be directed to the Executive a counselling service that will assist with 9813 3400 and advise that they require Director of the Bar, David Bremner, on emotional and stress-related pressures assistance in accordance with the 9225 7990. arising from family or marital problems, Victorian Bar’s Bar Care Scheme. The Requests for assistance should be multiple life stressors, drug or alcohol Institute is located at 993 Burke Road, made directly to the Institute. dependency, and practice pressures. A Camberwell, 3124. vital feature of the scheme is that full During the course of the initial consul- confi dentiality will apply to the identity tation, the counsellor will provide assist- of those who use it. ance and will determine what follow-up

49 News and Views

Criminal Bar Association Dinner

Judge Punshon, Robert Richter QC The Criminal Bar Association Annual Dinner was and Lex Lasry QC. held on 14 September at Matteo’s Restaurant

ATTEO’S has been a favoured pan fried large potato gnocco with sau- location for past dinners and the teed king prawns, tomato, leek and chilli Mdecision to return once again was, fondue, pesto mascarpone or puff pastry by all accounts, well received by the mem- “pithivier” of quail and Hiedi Gruyére, bers and guests who attended. In fact so creamed leeks and savoury cabbage, por- popular was the occasion that Nicola cini fumet sauce, followed by Gippsland Gobbo had to turn late acceptances away! lamb fi llets roasted in crepinette with a Matteo did an excellent job fi tting in the herb mousse, “pissaladiere” caramelised 140 lucky ones who made it and enjoyed, onion, anchovy and olive tart, smoked Marc Sargent checks out the vintage.

Reg Marron, Trevor Wraight and Steve Lex Lasry QC addresses the gathering. Russell.

50 Peter Jones, Boris Kayser and Brent Declan Macy, Carolene Gwynn, James Montgomery, Kate Rowe and Young. Margaret Lodge and Betty King. Leighton Gwynn.

Benjamin Linder, Ed Lorkin, Danielle Michael O’Connell, Sharon Lacy, Sara Ramon Lopez and John Smallwood. Huntersmith and Nicola Gobbo. Dennis and Justin Hannebery.

James Ruddle and Judge Jones.

Penny Marcou, Judge Gullaci, Michael Williams, John Hardy and Sara Thomas. Leighton Gwynn and Nick Healy.

Penny Marcou, Melissa Mahady, Ian Crisp, Phillip Dunn, and Barbara Angus Macnab, Scott Johns and Shane Mandy Fox and Justin Hannebery. and Chief Judge Michael Rozenes. Tyrrell. eggplant caponata, lamb jus with tomato Richter QC introduced the guest of a number of coloured responses from or Queensland barramundi, with a calorie honour, His Honour Judge Punshon, the those who reminded His Honour of his cresting dessert and cheese buffet. immediate past chairman of the CBA. time on the other side of the Bar table. Master of ceremonies by Chairman Lex His Honour’s remarks that he was In all another great dinner. Thanks to Lasry QC, the speeches were orderly and “truly enjoying the job and really nice peo- Nicola Gobbo for her tireless work in help- economical so as not to detract from seri- ple to work with” (duly noted by another ing to make it happen. ous eating, drinking and talk time. Robert attendee Chief Judge Rozenes) attracted Reg Marron

51 News and Views/Lunch Reserve at the Victorian Wine Precinct The Age recently gave this restaurant two chief’s hats — somebody must have leaked this review to them.

ARRY Humphries likened Federat- ion Square to a “clump of crumpled Bkerosene tins”. But whatever the debate about the architectural aesthet- ics of Melbourne’s new city square, it contains a number of luncheon spots for ment is a blessed relief of light and taste. beef”. The very small member of the party the peripatetic barrister. The place must The restaurant is heavily mirrored with found it to be some of the best beef he have culinary clout because the Victorian modern chandeliers and a view across an had tasted. The very large luncher in the Bar chose it as the site for the 2003 Bar outdoor balcony to Flinders Street. Aqua/ group wistfully wondered why the steak Dinner in the form of the Zinc Function turquoise carpet dominates the atmos- did not overlap the plate, why the chips Room. It is only a tram ride, taxi or in the phere. The tables are well placed and, of were not crinkle cut and where was the case of my companion a large automobile course, linen prevails. egg. It was gone in a fl ash. ride away. This is not an establishment for those Duck and coffee sounded somewhat Reserve Restaurant is one of those who think size is the most important thing. bizarre. Indeed some of the combina- lunch spots and judging by recent visits it It is not for those who seek a veal parmi- tions on the menu cut across traditional is one of the best. The restaurant is part of giana that overlaps the plate. Moderne is boundaries and combined the sweet with the new Victorian Wine Precinct situated the theme but quality moderne avoiding the savoury in unlikely partnerships. Duck near the Art Gallery. The “Precinct” con- the epithet of “tricked up food”. and coffee was duck leg done in confi t tains a wine shop, bars and a casual eating Simple descriptions are the order of style sitting atop a salad of raisins and establishment. But Reserve is the fl agship the day. Entrees are entitled quince and apples. So far not too adventurous until and no expense has been spared. The ham, beetroot and basil or scallop and the coffee, which was a mould of coffee restaurant is fi rmly aimed at the upper truffl e. Main courses are entitled steak bean panna cotta. It worked when it could end of the market and it is, indeed, a bold and chips, sausage and peas, duck and have been disastrous. Other combinations move in Melbourne town to make such a coffee, bugs and peanuts. But these titles included salmon and pork belly, swordfi sh venture work. But this is not to say that belie the complexity of the food. As part and foie gras and rabbit and goats’ cheese lunchers with less expensive taste cannot of the set menu the scallop and truffl e ice cream. The rabbit turned out to be a enjoy Reserve. There is a set lunch menu turned out to be an excellent combination puck of slow braised leg, roasted pep- of $32.00 for two courses and $40.50 for of three “seared” Canadian scallops on a pered loin, belly crackling combined with, three courses including tea, coffee and runny bed of scrambled eggs combined petits fours. Considering the standard of with truffl e oil. One of my fellow lunch- the food this is a bargain. ers had an excellent trio of oysters with But fi rst to the décor — does it echo quince jelly. Beetroot and basil turned out Duck and coffee sounded the kerosene tin qualities of the outer to be wild beetroot risotto with Milawa somewhat bizarre. Indeed buildings? Far from it. There is not the goats’ cheese and basil infused oil. some of the combinations overwhelming obsession Melbourne Steak and chips was not exactly steak architects have with grey and light brown and chips, but it was. The chips were more on the menu cut across — large grey tiles seem to adorn the fl oors like circular potato roesti with a circular traditional boundaries and and walls of most of the recent public piece of grilled “MSA” scotch fi llet on top combined the sweet with buildings in the city. Stepping into this res- accompanied by a side peppercorn sauce taurant from the grey tiles of the square and salad. MSA turned out to be “Meat the savoury in unlikely and the light brown of its cobbled pave- Standard Australia grade A rating for partnerships.

52 News and Views of all things, goats’ cheese ice cream. For those not in the know, the puck was not a misprint, but turned out to be a cab- Verbatim bage mould combining shredded pieces of rabbit. The dish was excellent and the goats’ cheese ice cream combined well. For the vegans, greens and burnt butter was a ravioli of greens with burnt butter, Hayes’ opponent: Master, thank you, we warm tomato ras el hanout fondant, confi t Masterclass have agreed to consent orders … I have of fennel and caramel sauce. Everybody 15 September 2003 them … I suppose we should wait for Mr should know what that all means. Coram Master Wheeler: Supreme Court Hayes … The chef, believe it or not, is only 24. Master’s Court, General Applications. Master Wheeler: No … no … it won’t be Quite a responsibility and quite a gamble Upon the Master calling for opposed necessary … if you have the orders and with such an unusual and imaginative applications upon an assurance that can assure me you have a consent … we menu. But George Calombaris does come they would not go beyond the luncheon will deal with it … and if Mr Hayes should from a pedigreed background, hav- adjournment: burst in and carry on we will deal with that ing worked at Fenix in Richmond, won R.H. Miller and V. Tallarida making an too … Apprentice of the Year in 1999, won a gold application for adjournment. Hayes QC did not “burst in” nor make medal in the food festival in Singapore and any further appearance that day before represented Australia in the Paul Bocuse Miller: We cannot give the assurance you Master Wheeler. Food competition in France. The Age sought that we would fi nish before lunch. Good Food Guide have just made him In any event ... also there is a matter that Jesus v Centrelink best young chef. will take some time and in which Senior Desserts are equally exotic. Marsh- Counsel Mr Hayes (who was not in Court) is appearing and he has precedence ... Melbourne Magistrates’ Court mallow and chocolate was a hot chocolate 4 September 2003 fondant with great rocky road ice cream, and ... Master Wheeler: Let us wait and see Coram: Gurvich, M with the G & T being a gin and tonic jelly Commonwealth OPP prosecuting a with a rhubarb sorbet. The cheese plat- what happens ... how the business in the list goes. I may send him out to Master Centrelink fraud. ter with a “glyko” of stone fruits, suitably Unknown solicitor for the Defendant. ended a memorable midday repast. Evans. Being part of a wine precinct the carte ..... Solicitor: The point is, Your Worship, my is both extensive and wide ranging in Hayes QC and his opponent seeking to client is barely literate. She struggled to price. A soave was great with the entrees, stand the matter down: fi ll in the income estimate forms. a pinot superb with the mains, a Spanish Hayes QC: Master, in this matter we … His Worship: I’m not interested. She’s sticky ended it all. Master Wheeler: What matter is that? either guilty or not guilty. And she’s Prices on the à la carte range from Hayes QC: Master, we … entered a plea of guilty. $15.90 to $21.00 for entrees, $22 to $33 Master Wheeler: Who are you?? … Solicitor: Indeed sir. Well, my other point for mains and $15 to $17 for dessert. What’s your name…?? I do not have your is that my client has now found Jesus. Wines start around $30ish and can end up name … His Worship: She’d have done better to anywhere. Hayes QC: My name is Hayes, Master … have found the Centrelink Compliance Reserve is brave and bold. It is differ- we … Offi cer. ent and deserves success. Get there to get Master Wheeler: Yes, … I think I heard away from the greyness of chambers, the that name this morning … I think some- No Shredders Here sameness of most restaurants and to enjoy one mentioned it to me … a culinary experience. The cleansing can Hayes QC: It may have been me, Master Federal Court of Australia be achieved in the adjunct downstairs … 9 September 2003 bar. You will need a map to fi nd your way From the Bar table: No, … Master, it Goldberg J from the car park to the restaurant, but may have been Mr Miller who did mention Hearing an interlocutory application on the way will experience the delights that name to you. Management and Executive Software of the ins and outs of Federation Square. Master Wheeler: (to Hayes QC) Any Pty Ltd v Chameleon Technology Incidentally The Age very recently how, … you appear … do you? … Pty Ltd and Others awarded this restaurant “best new restau- Hayes’ opponent (mentioning the fi le Mr A.K. Panna (instructed by Clayton rant of the year”, and gave it two chef’s reference): We wish to have the matter Utz) appeared on behalf of Applicant. hats. Somebody must have leaked the Bar stood down … It’s a matter in which I Ms E.A. Strong (instructed by Corrs News review to them. appear for the Deputy Commissioner of Chambers Westgarth) appeared on behalf Taxation and … of Respondents. Reserve Master Wheeler: Yes, I’ve heard of him Victorian Wine Precinct … Ms Strong: Your Honour would have Federation Square Matter then stood down. seen from my friend’s material that the Ph: 9654 6499 Later that day, Hayes’ opponent appears fi rst respondent is running a business Lunch and Dinner seven days in Court alone: by which it is marketing and selling the Master Wheeler: Yes … You wish to PowerBudget computer program. Now, Paul Elliott QC mention your matter? … the wording of paragraph 9 makes it

53 News and Views impossible for the fi rst respondent to see any particular diffi culty with that. Save deliver to one of its clients some disk that that we want to be cautious about the use relates to the program they have already of whiteboards, because then it’s easy to The bought or makes it impossible to deliver move from whiteboards to PowerPoint. to the clients a copy of the program for And then when we start using PowerPoint display purposes. In other words, Your we can have words that spin, and fl ash, Honour, it freezes … and light up, and … His Honour: If (c) was removed alto- Mr Everson: I’m all for that, Your Basil gether … Honour. Ms Strong: (b) would have to go too, His Honour: Well, indeed. But I mean so Your Honour, because … might the Crown, you know, in an assault His Honour: I haven’t fi nished. case. And so that instead of neutrally see- Fawlty Ms Strong: I’m sorry. ing the knife we see spinning out of dark His Honour: And (b) was made “subject the knife in a sort of Hitchcock music to otherwise than in the ordinary course under. of business”, I think that solves your Mr Everson: Well, Your Honour, my atti- in All of problem. tude to that is bring it on. Ms Strong: I think it does, Your Honour, His Honour: Audio-visual technology can and if the “otherwise than in the ordinary mislead by creating emphasis that may be course of business” were put at the top, unfair. But I don’t see that you writing Us perhaps if there’s a scrap of paper, for “why” or “inferences” on the blackboard’s instance, that’s going into the bin, in the going to cause a problem. normal course of business it would go into Mr Everson: Because what happens Richard A. Lawson the bin. is, Your Honour, is the jury will have His Honour: The only problem about heard the Crown speaking for an hour. I that is that your client may have a general want to do something that tries to wake policy that at the end of every day, for them up. example, copies that are made of particu- Ms Whitbread: I can assure my friend I’m E are a conceited lot, perhaps. Or lar programs are destroyed or removed not going to be that long. perhaps not. I have never tried to from a disk … His Honour: All right. I think we won’t go Wregister for Who Wants to be a Ms Strong: I’m not acting for a tobacco any further down this track. Yes, you may. Millionaire?, although it has crossed my manufacturer, Your Honour. Ms Whitbread: I’ll try and keep them mind. The dream of knowing a $250,000 awake too. answer, even before seeing the four Whiteboard Wake-up His Honour: You may use the white- choices, is alluring. But John Richards’ board. heroics remain well-remembered and a Supreme Court of New South hard act to follow. Wales Roles Reversed? So it was a surprise when Patrick, one 31 July 2003 of our lunch group, announced to us all, Connelly J Federal Court of Australia “I’m going on the show. They are taping it next Tuesday.” Mr Everson appeared on behalf of the 9 September 2003 It might be thought that the collec- Defendant. Goldberg J tive Bar experience of those who heard Ms Whitbread for the prosecution. Hearing an interlocutory application this announcement would produce some Management and Executive Software caution. Most barristers know that court Mr Everson: The fi rst is whether your Pty Ltd v Chameleon Technology is uncertain at best. But everyone had Honour has any diffi culty with me say- Pty Ltd and Others Patrick’s winnings spent then and there as ing to the jury that unlike other juris- Mr A.K. Panna (instructed by Clayton had, apparently, his teenage daughters. dictions like New South Wales where Utz) appeared on behalf of Applicant. The next day, Patrick’s up-coming the legislature has provided for written Ms E.A. Strong (instructed by Corrs triumph had slipped from my mind. directions there is no provision for that in Chambers Westgarth) appeared on behalf Then he rang, “Richard, will you be my the Juries Act. That’s the fi rst thing. The of Respondents. second thing is would Your Honour permit Phone-a- Friend”? “Of course.” “Thanks. me to write some words on the whiteboard Ms Strong: If Your Honour pleases. I’m Now listen. You will have to be by your in the course of my address to the jury? sorry, I am expecting an instructing solici- phone from 3:00 to 4:30 pm next Tuesday. His Honour: Yes. What sort of words tor, but he waited by the fax — I had this Don’t forget.” were you planning to write? choreographed, Your Honour — may I Everyone knows the anxieties of a Mr Everson: The word “why”, and I present my instructing solicitor. He was late brief. Or a brief where the solici- propose to put a question mark after that, waiting by the fax machine because as tor has a novel view of the law or an and the word “inference”. They’re the Your Honour would appreciate, things optimistic opinion of the strength of the only two words. have been coming in thick and fast. evidence. Similar anxieties swamped His Honour: All right. Well yes, I’ll have His Honour: I appreciate that. All I can me as soon as Patrick rang off. Would to tell them about inferences obviously as say, Ms Strong, is it’s a change on Perry the dreaded call come? “Richard, this is part of the standard summing up. I hadn’t Mason standing at the Bar table and Dallas Eddie Maguire speaking from Who Wants ...(indistinct)... about why. But yes, I don’t Street walking into court. to be a Millionaire? Patrick’s been going

54 on the desk. Then the phone rang. A voluptuous voice said, “Is Richard there? This is Melanie from Who Wants to be a Millionaire?” “Hello Melanie. I’m Richard.” “Hi! I’m just checking that you’re Patrick’s Phone-a-Friend. We’re taping this after- noon from 3:00 to 4:30. You’ll be by your phone.” “Yes, Melanie.” I am happy to report that the Bar’s col- legiate tradition still lives. The count-down to 3:00 pm might have been intolerable. But the bush telegraph had done won- ders and, one after another, colleagues started to prop in my room. First, Alan: a well-read gentleman, very strong on English literature. Next, Ross: very solid on the Oscars. Then Gary dropped-off his work-experience schoolgirl, Jessica. I said nothing but thought to myself that this was marvellous. She would know how many number one record Britney Spears has had on the US charts. Hold on. That was a bad case of thinking in stereotypes. For all I knew, Jessica could have been the full bottle on Greek mythology. It was 2:10 pm. My room was getting more and more crowded. We dragged in chairs from the corridor. I’d never had a conference this big. We waited. I looked up “meningococcal” in the dictionary. Easy. I paced around the room. Who were those two assassinated American Presidents besides Lincoln and Kennedy? Beethoven was one year younger than Napoleon, wasn’t he? And so on. Then I rang everyone who, conceivably, might ring me — and told them not to. 3:00 pm arrived. Then 3:15 pm. Nothing so far. “First he has to win the Fastest Finger First” warned Alan. We had all assumed that Patrick would do The man looking at the author died in 1658. He is … that easily. And he’d get two chances at it, or even three. 3:30 pm ticked by. The conversation in the room had, by degrees, beautifully. He’s got $64,000. But he’s hit becomes nearly constant and certainly the wall at the $125,000 question. He’ll There is a bit of Basil louder — somewhat like the wedding give you that question and two alterna- guests at the church waiting for the late tive answers because he’s already used his Fawlty in all of us. I bride. Then it was 4:00 pm. Our morale fi fty-fi fty.” What if I don’t know? Or, worse, started giving orders to was shipping. Surely Alan wasn’t right insist on “A” when the correct answer is an inanimate object. I with his Fastest Finger First warning? It “B”? Snap out of it, I said to myself. All was increasingly looking that way. 4:15 will be well. repeatedly told the phone pm. Still nothing. The ensuing build-up proved to be to ring, but it didn’t. What There is a bit of Basil Fawlty in all of bigger than expected. Next day, Patrick an anti-climax. us. I started giving orders to an inanimate rang wishing to know my weaknesses. object. I repeatedly told the phone to ring, “Where do you want me to start, Patrick? but it didn’t. What an anti-climax. Time Horse racing, TV shows, recent pop brought in the school atlas with the conti- had run out and our conference was wind- music, Greek mythology, Renaissance nents fl agged. I had “Which of the follow- ing up. We dispersed like losing Grand art.” “I see,” he said. “Well, wish me luck. ing countries does not border Uganda?” Finalists. Remember, Tuesday 3:00 pm.” covered. I had lists of presidents, prime Eventually the phone did ring. But it When Tuesday dawned, I was glad not ministers and Nobel Prize winners. I had was only my mobile and it was 5:30 pm. to be in court. I sat at my desk most of the the Periodic Table of the elements. All It was a disappointed Patrick. Slowest morning contemplating my ignorance. I’d this was neatly spread out before me Finger Last, he explained.

55 News and Views/A Bit About Words

Odd Connections

OST of our vocabulary comes but it is beyond the scope of this article to As an adjective it is equally familiar: directly or indirectly from Latin or explore that interesting byway. remember the last winning case you lost; MGreek; but the vocabulary of mod- Somersault is more obviously con- the last sure-thing bet at the race track, ern English is far greater than the sum of nected to salire than is the spawning or the spirit of a Collingwood supporter ancient Latin and Greek vocabularies. The conduct of salmon which connects them at grand fi nal time. Originally it had the difference is not explained by our borrow- to it. Nature has infl icted on salmon the sense of being left entirely alone (from ings from other languages. The reason most awkward instincts when it comes to solus alone); hence having the character- why English has grown much larger than reproduction: they swim as far as 3000 istics of a place abandoned and without the sources from which it springs is that a kilometers to return to the place where trees, in a ruinous state; and of a person: single root word in Latin or Greek will be they had their origins, and this generally destitute of joy or comfort. found to have spawned many offspring in involves a good deal of uphill swimming: English. This explains the enormous size leaping up falls and rapids against all odds Mr Rochester then turned to the specta- of the English lexicon: the latest estimate and commonsense. The dramatic absurd- tors: he looked at them with a smile both is that English comprises 616,500 words. It ity of a fi sh leaping out of the water to fi ght acrid and desolate. (Charlotte Bronte Jane also explains why words which may seem its way upstream must have been upper- Eyre) quite unrelated are found to be cousins. most in the mind of the person who gave Many English words have widely different the salmon its name. I have frequently heard desultory used meanings but on investigation turn out to as if it were a blend of desolate and sul- ********* be connected in their origins. try, which is a nice idea but wrong. It is Consider exult: “to manifest arrogant A related feature of the English lan- another descendent of salire, and is more or scornful delight by speech or behav- guage — and one of its torments — is the closely related to the leaping salmon and iour”. Strange to fi nd that it is related to existence of words that look and sound the salacious pigeon than the maraud- each of the following words: assail, resile, similar but have meanings which are quite ing creditor or the unhappy Rochester. salient, salacious, salmon, and somer- different. Linguistic Darwinism should It means jumping or fl itting about from sault. The common ancestor of all these have weeded out these odd couples one place to another. It is most commonly is the Latin salire to jump or leap. Assail long ago — or half of each pair at least used qualifying the noun “conversation” is defi ned in OED2 as “To leap upon or at, — because the confusing similarity of the and the reader is left to gather the mean- esp. with hostile intent”. To resile is to unlikely partners tends to weaken one or ing from the context, or to look in the dic- spring back or withdraw. A salient is origi- both. But they limp along, the difference tionary. A desultory conversation is one nally something which leaps forward, then between them blurred by misuse, leaving which shifts erratically from one subject something which stands out prominently, the hearer to gather the intended mean- to another: Bulwer-Lytton provides a con- especially a piece of land which juts out ing from the context in which they are textual hint to make it clear in The Last from its surrounding coastline. Used as deployed. Days of Pompeii: “The conversation, at an adjective, it signifi es something which Examples of this unhappy confu- fi rst desultory and scattered, …” stands out prominently: in argument, a sion are exult/exalt, desultory/desolate, How many people can, with confi dence, salient point is a point of great importance enervate/energise and venal/venial. There distinguish between venal and venial? or signifi cance. are many others. Both seem bad, but which is worse The connection with salacious is To exult, as noted above, is to manifest and why? Venal comes from the Latin less direct: salire is the root of salaci arrogant or scornful delight by speech or venum “that which is exposed for sale”: a — salax lustful, lecherous, wanton. It was behaviour. To exalt is almost the opposite: cousin to vendor, and vending machine. not always connected with sex, although it is to raise or set up on high; to lift up, Although the nation of shopkeepers has it would be dangerous to use it now if a elevate. It comes from the Latin ex + altus nothing against commerce as such, venal reference to sex was not intended. In 1661 high. Best not to confuse the two. gradually drifted south: things exposed Feltham wrote “… you have seen how the Desolate is readily understood. Used for sale; offi ces or privileges available for salacious and devouring Sparrow beat out as a verb, it involves laying waste, utter purchase; a person open to bribery; and the harmless Marten from his nest”. And destruction: Ambrose Bierce in his Devil’s fi nally its current, unsavoury meaning in 1675 Evelyn wrote of “Pigeons, Poultry Dictionary defi ned a garter as: “Connected or associated with sordid and and other salacious Corn-fed Birds”. It unprincipled bargaining; subject to mer- seems unlikely that the sexual behav- An elastic band intended to keep a woman cenary or corrupt infl uences”. iour of sparrows, pigeons and poultry from coming out of her stockings and deso- Tacitus wrote in the Annals: has altered much since the 17th century lating the country. (although battery hens face a short and … of all articles of public merchandise abstinent life by comparison with their and a creditor as: nothing was more venal than the treach- free-range ancestors). Apparently their ery of advocates. salacity consisted in jumping for more One of a tribe of savages dwelling beyond general purposes. Jumping is still used fi g- the Financial Straits and dreaded for their By contrast, venial comes from venia uratively in sexual slang (“go the jump”) desolating incursions. indulgence or forgiveness. So, of any

56 Conference Update offence, sin, lapse or error it signifi es the was an attorney.” Possibly Boswell, who non-conviction-bond end of the scale. was an advocate, helped adjust Johnson’s Chaucer commented that “… sin is of two attitude. Johnson understood better than Conference kinds; it is either venial or mortal sin”. Tacitus that there is no diffi culty in taking This is the problem with venial: it is very an unworthy or unpopular cause: often associated with sin, and takes an Update unhealthy taint from it. Boswell avoided A lawyer has no business with the justice or confusion when he referred to Johnson injustice of the cause which he undertakes, as imagining “such little venial trifl es as unless his client asks his opinion, and then 20–21 October 2003: Second National pouring milk into his tea on Good Friday”. he is bound to give it honestly. The justice Pro Bono Conference: Transforming Tacitus was needlessly harsh on advo- or injustice of the cause is to be decided by Access to Justice presented by the cates. Johnson was not keen on them, the judge. (James Boswell Journal of a National Pro Bono Resort Centre in either. He once observed, that “…he did Tour to the Hebrides (1785)) conjunction with PILCH. Contact Ann not care to speak ill of any man behind Johnson. Tel: (02) 9385 7776. E-mail: his back, but he believed the gentleman Julian Burnside [email protected]. 23–24 October 2003: Canberra. Innovation — Promising Practices for Victims and Witnesses in the Criminal Justice System. Contact the Offi ce of the Victims of Crime Co-Ordinator. Tel: (02) 6217 4381. Fax: (02) 6217 4501. E-mail: [email protected]. 6–9 November 2003: Geelong. Annual Conference: Forensic Psychiatry at Work presented by RANZCP. Contact Lush Family Gift the Conference Organiser Pty Ltd. Tel: 9509 7121. Fax: 9509 7151. E-mail: [email protected]. 24 November 2003: London, UK. International Intellectual Property Law presented by Hawksmere. Contact Claire Vipas. Tel: 44 20 7881 1813. Fax: 44 20 7730 4672. E-mail: Clare.vipas@ hawksmere.com. 8–9 December 2003: Melbourne. Second International Law and Commerce Conference. Contact Dr Murray Raff. Fax: (03) 9688 5066. E-mail: [email protected]. 9-15 January 2004: Cortina D’Amprezzo, Italy. Europe Pacifi c Medico-Legal Conference. Contact Rosana Farfaglia. Tel: (07) 3236 2601. Fax: (07) 3210 1555. E-mail: [email protected]. 10–17 January 2004: Whistler, Canada. The Australian Accountants and Lawyers Conference. Contact Ian Purchas. Tel: (02) 9223 2944. E-mail: [email protected]. Jack Rush QC,Robin Brett QC and Lady Lush view the glassware gift in the Bar 26-28 February 2004: Surfers Council Chamber. Paradise. Superannuation 2004: National Conference for Lawyers. Contact Dianne ADY Lush, the widow of Sir George joined the Chairman, Jack Rush QC, and Rooney. Tel: 9602 3111. Fax: 9670 3242. Lush, has donated to the Bar three other members of the Bar Council to view E-mail: [email protected]. Lcut-crystal tumblers which formerly the gift she made to the Bar. The gather- 12 April 2004: Capetown. Second World belonged to Sir Redmond Barry and carry ing took place in the Neil Forsyth Room, Bar Conference presented by the South the family crest. The tumblers are on dis- 1st Floor, ODCE, and then moved to the African Bar. Contact Dan O’Connor, play in the glass cabinet in the Bar Council Bar Council Chamber where Lady Lush Secretary ABA. Tel: (07) 3236 2477. Chamber. viewed the glasses in the cabinet. Jack 26 April 2004: Melbourne. Eleventh On 26 August, 2003 Lady Lush, Rush QC thanked the Lush family for their Annual Wills and Probate Conference. accompanied by her three daughters, generous gift, and spoke briefl y of the Contact Leo Cussen Institute. Tel: (03) Mrs Margaret Harper, Ms Jennifer Lush signifi cance of Sir Redmond Barry in the 9602 3111. Fax: (03) 9670 3242. E-mail: and Dr Mary Lush and their partners, history of Victoria. [email protected].

57 Lawyer’s Bookshelf

ments: the Insurance Contracts Act 1984, the concepts that experienced insurance Admiralty Jurisdiction the Insurance (Agents and Brokers) practitioners will. Law and Practice in Act 1984, the Insurance Contract Like earlier editions, the book is a Regulations 1985, the Insurance handy and accessible reference. This up- Australia and New (Agents and Brokers) Regulations, and to-date edition deserves a place in the the Insurance (Agents and Brokers) library of anyone whose work involves Zealand (2nd edn) Decision-making Principles No. 1 of insurance. By Professor Damian J. Cremeall 1994. It also contains the text of the S. J. Maiden Federation Press General Insurance Code of Practice and pp. i–xxii; 1–302 (including index) the General Insurance Brokers’ Code of Crime Practice, bereft of annotation. By David Ross QC T is six years since the fi rst edition of While the Agents and Brokers legis- Law Book Company 2002 this work by Professor Cremean. Like I lation was repealed by the Financial pp. v–lxxiv, 1–1045, the fi rst edition, this edition is a compen- Services Reform Act 2001 (SSRA) Table of Cases 1047–1164, dious analysis of admiralty jurisdiction regime, it is subject to a two-year tran- Table of Statutes 1165–1214 based around the Admiralty Act 1988 sitional period and thus remains in the (Commonwealth) and the Admiralty book. The work has been updated to HIS book is a comprehensive and Rules 1999 (Commonwealth) and the include reference to the changes achieved Tdetailed reference to more than 300 corresponding New Zealand legislation. by the FSRA. The preface assures readers terms relevant to the practice of criminal The concept of proceedings in rem and that Agents and Brokers legislation will law. It is arranged alphabetically by term, the apparent complexity of the various not survive into the book’s next incarna- with major subheadings set out as sepa- types of maritime claims can be confusing tion. Presumably it will be replaced by the rate numbered paragraphs and helpfully for persons not familiar with this area of appropriate provisions of the Corporations identifi ed in the table of contents. the law. Professor Cremean’s text care- Act and any other relevant legislation. The book covers topics at the black fully, clearly and authoritatively deals with Each annotated section is accompanied letter heart of the criminal law, as well as the complexity of admiralty law and the by annotations which include its legisla- explaining concepts surrounding its prac- peculiarities of its practice and procedure tive history. Usefully, the commencement tice. For example, it addresses terms such (for example, the peculiarities of arrest, date of any amendments is also indicated as “aid and abet”, “grievous bodily harm”, bail and caveats against arrest in respect where necessary. Important concepts are “nolle prosequi” and “possession”, evi- of vessels and that wonderful procedure defi ned by reference to precedent and by dentiary rules like corroboration, credit for admissions enabled by the “prelimi- cross reference to other sections where and the rule in Browne v Dunn (1893) 6 nary acts”). relevant. Signifi cant space is devoted to R 67, and ancillary issues such as counsel In circumstances where shipping is a detailed analysis of important decisions. (ranging from duties and responsibilities the primary vehicle for international Obviously, major changes in the new book through to liability in negligence and the commerce it is not surprising that a sub- include a discussion of cases decided need to robe) and the correct pronun- stantial part of the text deals with juris- in the two years since the previous edi- ciation of certain words. The scope of the dictional issues. tion, including FAI General Insurance book is at times astounding but occasion- As with the fi rst edition of Professor Co. Ltd v Australian Hospital Care ally obscure: for example, it includes a Cremean’s work, this edition is an Pty Ltd (2001) 204 CLR 641, Moltoni description of the steps via which DNA extremely handy practice volume includ- Corporation Pty Ltd v QBE Insurance profi ling is carried out, and almost three ing the full text of the legislation and the Ltd (2001) 205 CLR 149 and Gibbs pages are devoted to a questionably rel- rules and the author’s commentary. Some Holdings Pty Ltd v Mercantile Mutual evant entry on “jazz”. useful precedents are also provided by the Insurance Australia) Ltd [2002] I Qd R Where appropriate, headings contain author. The case law cited by the author 17 (to name but a few). While comprehen- references to statutory provisions in has been updated and provides both a sive, the text is not overly verbose. each Australian jurisdiction. The author representative and comprehensive analy- The Insurance Contracts Act is not a makes prolifi c reference to case law and sis of the application of the Act. complete statement of the law relating frequently quotes both trial and appellate All commercial lawyers at some stage to insurance contracts in Australia. The judgments to assist the interpretation and or another deal with shipping or admiralty. common law relating to insurance has application of the principles which he This is a readable and authoritative text. developed over hundreds of years and addresses. S.R. Horgan involves complicated topics including The work is engagingly written and subrogation, contribution and uberrimae peppered with witticisms, making it a Annoted Insurance fi dei (utmost good faith). Where the pleasure to read. legislation touches on those concepts, The combination of a comprehensive Contracts Act (4th edn) the annotations would be improved by table of contents and the alphabetical By Peter Mann and Candace Lervis reference to textbooks or seminal articles order in which the book’s headings appear Law Book Company, 2003 which fully describe fee operation of those would render an index to this book of less pp. ix–xxx, 1–452, Index 453–465 important parts of the law. Those changes than usual utility. Indeed, an index would would make the book more useful to all add to the book’s already voluminous size HE scope of this work is not com- members of its intended audience. In and repeat to a large extent the 69-page Tpletely disclosed by its title: it is particular, the additions would be appre- table of contents. However, the absence of actually an annotation of several related ciated by professionals and students who an index denies the reader the ability to Commonwealth Acts and statutory instru- may not have the passing familiarity with Continued on page 46

58

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