bar news barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | WINTER 2008 THE JOURNAL OF NSW BAR ASSOCIATION Judicial review today Climate change and environmental planning law WINTER 08 Citizenship & David Hicks: an interview with David McLeod The new Bar Library LUDLOWS LEGAL REGALIA & TAILORS ONE TIME SPECIAL OFFER Bar Wig, Sale Price Bar Jacket, Bar Gown, $2,000 & 3 Jabots Free Delivery $2,600 in value www.ludlows.com.au LUDLOWS (Melbourne) LUDLOWS (Hong Kong) Mezzanine Level, 530 Lonsdale Street, Melbourne Shop 2015 United Centre 95 Queensway, Hong Kong Tel 03 9670 2000 Fax 03 9602 2266 Tel 2861 2130 Fax 2861 0930 Email [email protected] Email [email protected] | CONTENTS | 2 President’s column 3 Editor’s note 4 Letters to the editor 5 Opinion Fair trial guarantees in international humanitarian law Specialisation at the Bar Animal law 12 Recent developments 61 Interviews 86 Personalia 18 Features Attorney-General McClelland The Hon Justice Keith Mason AC Climate change and environmental David McLeod The Hon Justice Lance Wright planning law Climate change ‘refugees’ and 69 Legal history 90 Obituaries international law Introduction to Roman law Robert Gray 32 Addresses Workers’ compensation His Honour Judge Brian Donovan QC The Hon Justice GFK Santow AO Maurice Byers address 76 Readers 01/2008 Mark McFadden Why prosecutors should support a charter of rights 77 The new Bar Library 98 Book reviews 49 Practice 78 Bench and Bar Dinner Equity practice and precedents A new military court A setting for justice 80 Appointments A history of the navy legal panel The Hon Justice James Allsop 100 Bar sports Bench and Bar meet the navy The Hon Justice Lucy McCallum Procedures for complex commercial Bradman Cup Cricket cases The Hon Justice Nigel Rein Great Bar Boat Race How borrowing in super has stepped District Court Appointments up a gear Stephen Gageler SC 102 Muse The surrealism of Salvadore Tedeschi QC 60 Bar charities 85 Appreciation Bullfry and the cold latte Indigenous Literacy Day Peter Hely barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | WINTER 2008 Bar News Editorial Committee Design and production Andrew Bell SC Andrew Bell SC (editor) Weavers Design Group Eleventh Floor Keith Chapple SC www.weavers.com.au Wentworth Selborne Chambers Gregory Nell SC 180 Phillip Street, Advertising John Mancy Sydney 2000. Arthur Moses To advertise in Bar News visit DX 377 Sydney Chris O’Donnell www.weavers.com.au/barnews Duncan Graham or contact John Weaver at (c) 2008 New South Wales Bar Association Jeremy Stoljar Weavers Design Group This work is copyright. Apart from any use as permitted Carol Webster at [email protected] or under the Copyright Act 1968, and subsequent Richard Beasley amendments, no part may be reproduced, stored phone (02) 9299 4444 David Ash in a retrieval system or transmitted by any means Louise Clegg or process without the specifi c written permission ISSN 0817-0002 from the copyright owner. Requests and inquiries Julie Soars Views expressed by contributors to concerning reproduction and rights should be Kylie Day Bar News are not necessarily those of addressed to the editor, Bar News, c/- The New South Jenny Chambers Wales Bar Association, Basement, Selborne Chambers, the New South Wales Bar Association. Geoff Hull (clerk) 174 Phillip Street Sydney, NSW 2000. Contributions are welcome and Bar News | Winter 2008 | 1 Bar Association staff member should be addressed to the editor, Chris Winslow | PRESIDENT’S COLUMN | The barrister class is alive and well By Anna Katzmann SC and mediations. They also act as mediators. courts’. The conference also stressed that The art of persuasion, which is the art in referral Bars, together with their professional which barristers are most practised, lies at the organisations, ‘have a particularly important heart of the mediation process. The changing role to play in defending the independence face of the Bar refl ects not its passing, but its of the courts and in affording access by the reinvigoration. public to them’. Recently, the president of the Victorian Bar was castigated by the attorney- Most importantly, there remains a pressing general in his state for daring to criticise the need for a group of independent advocates, preferment of a magistrate as an acting call it a class of persuaders if you like, free of judge. Whatever the merits of that particular the constraints of employment, partnership appointment, standing up for the principle or corporate responsibility, upon whom both of the independence of the judiciary is an the client and the judiciary can depend – important function of the independent Bar. In his lecture at the conclusion of the rhetoric a class of persuaders for whom the duty to series last year Michael McHugh AC QC the court remains paramount, unconcerned There is no doubt that Australia continues lamented what he described as the fall of about the interests of anyone but the client, to enjoy a strong, vibrant and independent ‘the barrister class’ and mourned the end of and ready and able to act for anyone, no bench and Bar but we must always be vigilant. what he called the ‘Golden Age’ of the Bar. matter how unattractive his or her cause, and Others are usurping the roles barristers In an article soon to be published with the how unpalatable his or her conduct may be. traditionally fulfi lled. Competition is all other lectures in that series, Justice Michael Michael McHugh asserted that there has very well but the barrister’s advocacy skills Kirby AC CMG takes issue with his former been a decline in the status of the Bar in and experience, and the independence colleague.1 Justice Kirby is right to do so. recent decades. He attributes that decline that a barrister enjoys, gives a barrister the Much as some may yearn for a return to to two factors: the rise of fi lm, television, edge in many areas into which solicitors are the past, things were not always better in radio, singing and sporting stars; and the now expanding. the past. The so-called ‘Golden Age’ was decline in barristers’ incomes relative to not only elitist but, like other class or caste As the former chief justice of Zimbabwe, other occupations. It is quite true, as McHugh systems, it was exclusive. Women did not Hon Anthony Gubay pointed out at the pointed out, that relative to sports’ and belong, and generally speaking (well known Edinburgh World Bar Conference, it is movie stars (at least international sports’ exceptions like Barwick and McHugh himself generally accepted that ‘a society in which and movie stars), barristers enjoy inferior aside) neither did men from humble the rule of law is meticulously observed is incomes. That disparity, however, does not backgrounds. Those who did were often one in which a climate of legitimacy and a bespeak the decline of the Bar. It merely derided. Blackstone complained about strong, vibrant and independent judiciary refl ects the rise of the mass media, the the increasing numbers of barristers drawn and Bar, are evident’.3 He reminded us that power of advertising and, in particular, from the middle classes in the middle of an independent Bar acts as a bulwark against the advertising dollar and the international the eighteenth century, predicting that oppression. He went on to say that: ‘a Bar appeal of the celebrity entertainers. Barristers the practising Bar was in danger of being which is loath to challenge before the courts with celebrated international practices also dominated by ‘obscure or illiterate men’2. enactments and actions viewed as in confl ict command high incomes. Jonathan Sumption As late as the twentieth century Ada Evans with the rule of law, because of political QC is a notable example. There are just a few (and many women before and after her) pressure, an unwillingness to attract criticism of them around and their fees are generally was blackballed, unable to practise, despite from the government or the public, or from not advertised. It is true that increasing her literacy and capacity, for no other reason fear of an adverse impact upon livelihood, regulation of the profession has seen an than her sex. fails in its allied duty and function to ensure increase in control over fees. But the same that the rights of the individual are respected Yet, who would now argue that women is true of the medical profession. In any and enforced.’ Fortunately, there have been should not be barristers or that the profession case, even if it is true that barristers’ fees barristers in Zimbabwe4 prepared to take should be open only to those from privileged have declined in real terms, if that is the on the government, sometimes at great backgrounds? Who would not accept that price we must pay for improving access to personal cost. The same is true of Pakistan the profession has been enhanced by diversity? justice, then it is a price worth paying. where the Bar played a leading role in the The methods of persuasion have also In its Edinburgh declaration, the inaugural opposition to General Musharraf’s attacks on expanded. So too have the forums in which conference of the International Council of the independence of the judiciary and several the barristers’ skills are required. These facts Advocates and Barristers, held in 2002, noted prominent barristers were arrested and held do not herald the demise of the barrister that ‘the independence of courts is essential in custody. ‘class’, merely its redeployment. Barristers to the functioning of democracies, and that Closer to home Australian barristers travelled now appear for clients, not only in courts, the independence of the legal profession in to South East Asia to argue against the death but also before tribunals and in arbitrations turn is essential to the independence of the 2 | Bar News | Winter 2008 | | EDITOR’S NOTE | penalty for Australian citizens.