VICTORIAN BAR NEWS
No. 135 ISSN 0159-3285 SUMMER 2005
Appointment of Senior Counsel
A Special Sitting of the High Court of Australia to Welcome the Honourable Justice Susan Crennan Victorian Bar Superannuation Fund The 2005/2006 Victorian Bar Council Criminal Bar Association Farewells Judge Kelly, Former Judge of the County Court Ross Ray QC Farewelled as Bar Council Chairman Howell’s List: Twenty-Five Not Out Launch of the Victorian Sentencing Manual: Online and Free to All Celebratory Dinner: The Honourable Mary Gaudron QC Readers’ Signing of Bar Roll Hurricane Katrina: Destruction in New Orleans Chief Justice William H. Rehnquist: A Personal Remembrance When Barristers Make a Real Difference Bar Hockey 2005 Now carries even more weight, without all the extra kilos.
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No. 135 SUMMER 2005
Contents EDITORS’ BACKSHEET 5 Do Barristers Exist? CORRESPONDENCE 6 Letters to the Editors CHAIRMAN’S CUPBOARD 8 Outstanding New Appointments A Special Sitting of the High Court of Australia CBA Farewells Judge ATTORNEY-GENERAL’S COLUMN to Welcome the Honourable Justice Susan Kelly, Former Judge 10 State-sanctioned Homicide the Antithesis of Crennan. of the County Court. Every Value We Share with Other Nations LEGAL PRACTITIONER’S LIABILITY COMMITTEE 11 Bar Defence ETHICS COMMITTEE BULLETIN 13 Unreported Judgments NEWS AND VIEWS 14 A Special Sitting of the High Court of Australia to Welcome the Honourable Justice Susan Ross Ray QC Reviews Launch of the Victorian Sentencing Manual: Crennan His Year as Bar Online and Free to All. 19 Victorian Bar Superannuation Fund Council Chairman. 20 The 2005/2006 Victorian Bar Council 22 Criminal Bar Association Farewells Judge Kelly, Former Judge of the County Court 26 Ross Ray QC Farewelled as Bar Council Chairman 31 Howell’s List: Twenty-Five Not Out 32 Launch of the Victorian Sentencing Manual: Online and Free to All 38 Celebratory Dinner: The Honourable Mary Gaudron QC 41 Readers’ Signing of Bar Roll When Barristers Make a Real Difference. Celebratory Dinner: 43 Hurricane Katrina: Destruction in New Orleans The Honourable Mary 48 A Bit About Words/Laconic Gaudron QC. 49 Verbatim 50 Chief Justice William H. Rehnquist: A Personal Remembrance 51 When Barristers Make a Real Difference SPORT 52 Bar Hockey 2005 LAWYER’S BOOKSHELF 54 Books Reviewed 54 The Essoign Wine Report
Readers’ Signing of Bar Roll.
Cover: The Silks being welcomed. Bar Hockey 2005. 3 Victorian Bar Council
VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2004/2005 Aboriginal Law Students Mentoring Committee *Executive Committee G Golvan S.C., C.D. Clerks: Applications Review Committee B *Ray QC, W.R. (Chairman) G Digby QC, G.J. B *McMillan S.C., Ms C.F. (Senior Vice-Chairman) Charitable and Sporting Donations Committee A *Shand QC, M.W. (Junior Vice-Chairman) D Riordan S.C., P.J. D *Fajgenbaum QC, J.I. Conciliators for Sexual Harassment and Vilifi cation F *Dunn QC, P.A. B Curtain QC, D.E. F *Dreyfus QC, M.A. G *Lacava S.C., P.G. Counsel Committee G *Crennan S.C., M.J. G Crennan S.C., M.J. D *Beach S.C., D.F.R. (Honorary Treasurer) Editorial Committee for In Brief and Website News F *Quigley S.C., Ms M.L. Section D *Riordan S.C., P.J. D McLeod S.C., Ms F.M. D *Jones, I.R. Equality Before the Law Committee A *Townshend, C.J. A Richards QC, Ms A. W *Neal D.J. R *Doyle, Ms R.M. Ethics Committee D *Duggan, Ms A.E. B McMillan S.C., Ms C.F. L Hannebery, P.J. (Assistant Honorary Treasurer) Human Rights Committee D *Connor, P.X. D Fajgenbaum QC, J.I. F *Knights, Ms K.J. Legal Assistance Committee R *Fairfi eld, C.G. A Macaw QC, R.C. D *Shaw, C.E. Readers’ Course Committee G *Anderson, Ms K.J.D. (Honorary Secretary) G Santamaria S.C., P.D. G *Neskovcin, Ms P.A. (Assistant Honorary Secretary) Continuing Legal Education Committee Ethics Committee B Young QC, N.J. B McMillan S.C., Ms C.F. (Chair) Accreditation and Dispensation Sub-Committee H Merralls AM, QC, J.D. B Young QC, N.J. C Meagher ED, QC, D.R. S Willee QC, RFD, P.A. New Barristers’ Standing Committee S Lally QC, W.F. G Bingham, Ms S.L. F Gobbo QC, J.H. Past Practising Chairmen’s Committee G Lacava S.C., P.G. G Berkeley QC, H.C. A Macaulay S.C., C.C. Professional Indemnity Insurance Committee G Gordon S.C., Ms M.M. A Shand QC, M.W. R Batten, J.L. Professional Standards Education Committee P Williams, I.S. S Willee QC, RFD, P.A. D Kirton. Ms C.E. L Lane, D.J. Victorian Bar Dispute Resolution Committee F Shiff, Ms P.L. B Levin QC, D.S. D Duggan, Ms A.E.
VICTORIAN BAR NEWS Paul Duggan, Peter A. Clarke, Printed by: Impact Printing Editors Victoria Lambropoulos, Richard Brear 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and (Editorial Assistant) and Peter Lithgow Brunswick Vic. 3056 (Book Reviews) Judy Benson This publication may be cited as Editorial Board David Johns (Photography) (2004) 135 Vic B.N. Julian Burnside QC Published by The Victorian Bar Inc. Graeme Thompson Owen Dixon Chambers, Advertising 205 William Street, Melbourne 3000. Publications Management Pty Ltd Editorial Consultant 38 Essex Road, Surrey Hills, David Wilken Registration No. A 0034304 S Victoria 3127 Editorial Committee Opinions expressed are not necessarily Telephone: (03) 9888 5977 John Kaufman QC, William F. Gillies, those of the Bar Council or the Bar or Facsimile: (03) 9888 5919 Carolyn Sparke, Georgina Schoff, of any person other than the author. E-mail: [email protected]
4 Editors’ Backsheet Do Barristers Exist?
s the Victorian Bar a mirage? Is there a small group in society who are under Ithe infl uence of some potent, mind- altering substance who believes that there are things called barristers? Evidently, the Deputy Lord Mayor of Melbourne, Mr Gary Singer, doesn’t believe that barristers are real people. Mr Singer, in his guise as a solicitor, was fi ned by the Legal Profession Tribunal for hav- ing some problems with cheques meant to be paid to barristers; those tiresome things sometimes sent to solicitors by other parties, such as insurance compa- nies, as a disbursement to be forwarded on to those strange entities known as barristers. Therefore, under some quaint rules, they are to be paid into a trust account and then paid out to those other illusion-like things: barristers’ clerks. It seems Mr Singer wrote the cheques out but they never went out — got stuck in a solicitors, all being “lawyers”. Those 6.30 “fi rms” then where do they fi t in to the drawer or somewhere else. “current affair” programmers on televi- fabric of the law industry? They are not When all this was reported on the front sion regularly have stories about “greedy legal practitioners but exist in the demi- page of the Herald Sun newspaper, and lawyers”. Recently, the one hosted by Ms monde of “legal person” persons. The the question posed, “Shouldn’t Mr Singer Naomi Robson had a sensational story confusion increases when inspection is resign as Deputy Lord Mayor?”, one of his which cut to footage of people dressed made of the two forms that are sent out to reported responses was to the effect that: up in wigs and gowns. These were not the barristers in order for us to be registered. “None of the clients were affected”. “lawyers” that were the subject of the pro- These forms ask some very strange ques- Well, that’s all right then Mr Singer gram. But it is quite acceptable to lump tions of barristers which, in many cases, — no people were affected by your barristers in there, as we all know they are unanswerable. They continually ask a actions, no one was hurt, because barris- don’t really exist. Only greedy lawyers barrister to nominate his partners, manag- ters don’t really exist, do they? They don’t really exist, no matter what part of the ing partners, CEOs and where he stands have families, mortgages or school fees so profession they inhabit. in a fi rm. As barristers cannot answer it didn’t really matter that you hung on The legislation governing the registra- these questions, does it means they do to their fees. If the Law Institute hadn’t tion of “lawyers” in Victoria also seems to not exist? If you write on the form: “I am undertaken an audit on the fi rm Simon have diffi culty in recognising the exist- a barrister and unable to answer these Parsons & Co (at which you used to be ence of barristers. Because barristers questions” does the great computer in the a partner) and discovered the cheques, don’t have trust funds and are not in sky that registers law industry members when were you planning to pay the bar- cough and splutter and disgorge such risters? When those irritating barristers’ non-conforming creatures? It makes you clerks came chasing, months or years worry in bed at night. after you had received payment to pass on Because barristers don’t Finally, perhaps and most signifi cantly, to the barristers who had completed the have trust funds and are there is the new legislation governing work for your fi rm? fees. The Committee that thought up It is this attitude that continuously sees not in “fi rms” then where this monster obviously does not believe barristers being paid months and years do they fi t in to the fabric of in the existence of the barrister. As most after their fees were due, a practice that the law industry? They are are slowly becoming aware, the new leg- mystifi es bank managers and fi nanciers to not legal practitioners but islation requires the entering into a fees such an extent that they don’t believe that agreement that requires disclosure, dis- barristers are real things. exist in the demi monde of closure, disclosure. However, the import The media also believes that there is “legal person” persons. of the legislation and the fees agreement no distinction between barristers and requirements seem to be directed to
5 Letters to the Editors
solicitors rather than barristers. Not much Judicial Dichotomy but not in the photo, were Sir John Young thought has been given to the situation and Mr Justice Peter Murphy. where briefs are fl icked through the night The Editors John (Jock) Ellis had in fact been a before or on short notice. It seems that a fi ghter pilot in England, who survived barrister has to sit down and spend a few HE Attorney–General, Rob Hulls, in the War, but sadly was killed in a trac- hours drawing up a detailed new agree- This column in Victorian Bar News No. tor accident about fi ve years later. Ian ment disclosing all sorts of things down 134 Spring 2005, seems to have set the bar Stewart had been Australia’s 100 metre to the colour of underpants to be worn too high, even for himself. He expresses freestyle champion in 1939 and repre- the hope of achieving the impossible sented Australia then against Japan and — “It is my hope that we have turned the the United States. Bill Ross served in the dichotomy on its head …” 2nd A.I.F. at Tobruk, El Alamein and the Not much thought has The OED defi nes dichotomy as: South Pacifi c. He was wounded in action been given to the situation Division of a whole into two parts … Divi- and promoted to Captain. He is now 88 where briefs are fl icked sion of a class or genus into two lower mutu- and lives in a home in Canterbury, but is ally exclusive classes or genera. through the night before, physically fi t and very mentally “on the The tone and language of his column ball”. or on short notice. prompted me to provide for readers the following dictionary defi nitions (for brev- With kind regards, during the course of a trial. Non-compli- ity from Collins English Dictionary, Yours sincerely Aust. Ed): ance means non-payment and, ultimately, Charles Francis a trip to the Debt Collection List, VCAT, Blather 1. to talk foolishly; 2. foolish talk, where the chances of barristers’ suc- nonsense. (see also blather-skite) cess don’t appear to be very high. But it Mournful Error doesn’t matter because you don’t have to Cant 1. insincere talk, esp. concerning pay barristers anyway as, in reality, they religion or morals, pious platitudes; 2. stock Dear Editors don’t exist. phrases that have become meaningless OUR reviewer of the 2nd edition of the through repetition. (see also O.E.D defi ni- Oxford Companion to the Supreme APPOINTMENT OF SENIOR COUNSEL Y tion 6 to affect pietistic phraseology, esp. Court of the US (“Lawyers’ Bookshelf”, The Honourable Chief Justice Marilyn as a matter of fashion or profession; to talk No. 134 Bar News, Spring 2005) has Warren AC has appointed as Senior unreally or hypocritically with affectation to appended a “(sic)” to the “morning Counsel the persons listed below, in order piety or goodness.) clothes” description of the garb worn of precedence: Rhetoric 1. the study of the technique of by attorneys appearing before the US Christopher Joseph Wren using language effectively; 2. the art of Supreme Court. While such advocates David John Neal using language to persuade, infl uence or may wish to convey to the court their Barry John Hess please; oratory; 3. excessive use of orna- mourning the injustices suffered by their Brendan Michael Griffi n mentation and contrivance in spoken or clients for whom they seek relief, this does Anthony Aloysius Nolan written discourse; bombast; 4. speech or not affect their style of dress. Christopher James Ryan discourse that pretends to signifi cance but Morning clothes are to evening clothes Paul James Cosgrave lacks true meaning. what Morning Prayer (Matins) is to Michael Richard Pearce Evensong or Evening Service. No one Christopher John Blanden Michael A. Adams QC would suggest Matins are prayers for the Gregory John Lyon recently deceased such as the Jewish Stewart Maxwell Anderson Oops! Kaddish. A toper may well mourn the Michael Phillip McDonald morning after the evening before and an Simon Edward Marks The Editors, imprudent woman might mourn the need Michele Muriel Williams for a morning-after pill lest she later suffer Michael William Thompson N page 30 of the current Bar News morning sickness. Oyou have what is alleged to be a photo It may be that the reviewer has con- The new Silks will announce their of barristers signing the Bar Roll on 3 fused US with English advocates where appointment at Ceremonial Sittings of August 1948. the English barrister’s dress traditionally both the Supreme Court and the Federal The photo is in fact a photo of prac- includes the white cuffs or “weepers” Court on Tuesday 6 December 2005: titioners signing the Victorian Supreme adopted following the death of Queen at 9.15 am to the Supreme Court in Court Roll on Monday 2 August 1948. Anne and retained ever since despite the Blanco Court; and at 10.15 am to From left to right the people are Eric the passage of nearly three centuries. the Full Court of the Federal Court in Hewett, T.A. Miller, A.J. (Bob) Scurry, See, for example, Sir Walter Scott’s Guy Court One, Level 8, 305 William Street John Ellis, G.P. Healy, E. Hayes, I. McC. Mannering and James Joyce’s Ulysses. Melbourne. Stewart, J. Toohey, Brian Thomson, Kerry See, for example, the portraits of Sir Owen Counsel are invited to attend the Horton and J. Gough. Seated and signing Dixon and Sir Frank Gavan Duffy hanging ceremonies, robed (without wigs in the is W.L. (Bill) Ross and opposite him is an in the lobbies of Owen Dixon Chambers Federal Court). Families, friends and chil- Offi cer of the Prothonotary’s Offi ce. West and East and that of Isaacs CJ in the dren of the newly appointed Silks are also Hewett, Scurry and Thomson signed Oxford Companion to the High Court of welcome to attend the sittings. the Bar Roll on 9 September 1948. Also Australia. The Editors admitted to practice on 2 August 1948, If I am wrong the same error com-
6 plained of by the reviewer was committed the basis of homogeneity or the old school • the name will be changed to Senior in the Oxford Companion to the High tie, rather than purely on merit, but these Counsel; Court of Australia (see the entry for nuances may well dissipate in the heady • it will be lawful for appointments to be “Court attire” at page 168). If I am wrong atmosphere of the Essoign. made of lawyers who practise either (I sometimes am but I never doubt), I am Despite the assurances of those who alone or in partnership with any other in good company with Webster’s Third benefi t from its existence, I still believe lawyer (including solicitors) and such New International Dictionary (1961) that the culture at the Bar — and in the appointees would be able to continue and the Oxford English Dictionary (2nd wider profession — needs to change. I am to practise either alone or in partner- ed., 1989) among many others. determined to press on with the campaign ship with any other lawyer. Although I have disclosed my identity to reclaim the term “merit” for a better Otherwise, the power to appoint under to you, for the reason already tendered legal system and encourage the emer- the Royal Prerogative is set to continue. and published (“Letters”, No. 133 Bar gence of a profession that is truly inclu- Yours sincerely News, Winter 2005), I wish to remain sive and respectful of all in its ranks – for Alan Ritchie Your anonymous correspondent the benefi t of all practitioners and, more importantly, for all Victorians. Executive Director New Zealand Law Society Culture at the Bar Yours sincerely Rob Hulls MP To the Editors Attorney-General EADERS of this journal will no Competition Rdoubt take heart that the Bar is The Winston Churchill graced by renaissance men like Geoff The Bar News thanks Mr Jack Steward. They will be relieved that there Dear Editors Hammond QC for providing it are individuals who declare themselves a with copies of the California Bar ANY thanks for the generous wel- misogyny-free zone and who generously Journal. The journal has an excel- come contained in the Spring 2005 count female barristers among their M lent page headed “Trials Digest” Edition of the Victorian Bar News. There acquaintance. in which there is a summary of tri- is unfortunately one error which I should The point seems to be lost on Steward, als and awards in civil cases. The correct. however — as it has been time and again amounts of damages awarded makes At the time that I sailed in the Sydney on his profession — that the law has most interesting reading. to Hobart Yacht Race on the Winston been reluctant to relinquish much of its Therefore, Bar News provides Churchill, it was then the only yacht exclusive and “exclusionary” nature. The the summaries of the trials and asks from the original 1945 fi eld which was still reality is that, in some corners of the readers to give their estimate of the afl oat. It is a matter of great sadness to legal profession, a culture lingers — as damages that have been awarded. me, and all who sailed on her over some it does in all pockets of privilege — that Those entrants whose awards come 50 years, that the Winston Churchill was rewards similarity and discourages, even closest to the amount published in lost at sea with the tragic loss of life dur- penalises, difference. The push to be “one the California Bar Journal will win ing the course of the 1998 race. For those of the boys” — even if it means being the a bottle of claret from The Essoign. interested, the full details are contained butt of a joke that would never be directed in Rob Mundle’s excellent book Fatal Motorcyclist injured at a bloke — is strong, and while this cul- Storm. A motorcyclist was thrown onto a ture persists many women are reluctant guardrail when he swerved to avoid a to stand out lest it be for the “wrong” Yours faithfully tractor/trailer on a winding mountain reasons. Importantly from my perspec- Kim Hargrave road (Baldau v Berkins, El Dorado tive, they may also be reluctant to accept County Superior Court). the mantle of judicial offi ce when it means Award:? being exposed to disrespect or to com- Grants of Silk Benzine exposure pletely distorted forms of scrutiny and Dear Editors evaluation by a self-styled panel worthy of A man who worked as an aircraft the shabbiest talent quests. N both of his letters published in your painter alleged that he contracted We need look no further for an example IWinter edition, John A. Riordan claimed leukaemia as the result of expo- than Steward’s appraisal both of his col- that in New Zealand the decision has been sure to benzine (Komizzey v Axo leagues at the Bar and his superiors on made to abolish Silk. I don’t expect that Products Inc, Los Angeles County the Bench. In charging that some women, the New Zealand position will have much Superior Court). like some men, are “devoid of talent, wit, bearing on yours but I write simply to set Award:? intelligence or skill”, we can only assume out the current position. Sign installer electrocuted that his assessment is as happily objec- It is true that the matter has been A 36-year-old sign installer suffered tive — and as absent in irony — as his under review but the only decisions taken burn injuries when he came in con- measure of those female appointments by the Government appear in the Lawyers tact with a live power line (Baez v to judicial offi ce who, in his humble opin- and Conveyancers Bill, which is still Summit Media, Los Angeles County ion, have not been based on merit. I am before the House of Representatives with Superior Court). curious to know whether Steward would no assurance that it will ever be passed. If Award:? suggest with as much confi dence that, in it is passed, then the changes to the offi ce the past, some men were appointed on of Queen’s Counsel will be:
7 Chairman’s Cupboard Outstanding New Appointments
JUSTICE NEIL YOUNG increase the brief fees paid to barristers N 23 November 2005 the Executive for Legal Aid work. Recently, the Bar Council announced the appoint- Council was informed by Victoria Legal Oment of Neil Young QC as a judge Aid (“VLA”) that the Board of VLA had of the Federal Court of Australia to take resolved to adopt a protocol for the index- effect from 30 November 2005. Justice ation of fees paid to legal practitioners for Young has been an outstanding practising state and criminal law legal aid services: member of the Bar, a distinguished leader “Annually at the commencement of the of this Bar and has been a great role model fi nancial year the VLA Board will review for all barristers. He has demonstrated his state law and criminal law fees with a view intellect, dedication and commitment to adjusting those fees by an indexation to the law during his working life. He amount having regard to the fi nancial was Chairman of the Bar Council for 18 position of the VLA and the operational months from March 1997 to September demands on VLA at the time of the review. 1998 and President of the Australian Following the review, if the Board deter- Bar Association from January 1999 to mines to pay an indexation amount in a February 2000. The Bar warmly acknowl- particular year, the Board shall determine edges and welcomes the appointment of the quantum of that amount.” Justice Young. The work of the specialised group of Bar Councillors charged with the task of JUSTICE SUSAN CRENNAN increasing Legal Aid brief fees continues On 8 November 2005 Justice Susan with the aim of increasing to a realistic NGUYEN TUONG VAN Crennan was sworn in as a Justice of the level the brief fees paid to barristers. High Court of Australia. Members of the Recently, the Bar Council wrote to the LEGAL PROFESSION ACT 2004 Victorian Judiciary and the Victorian Bar Attorney-General of Singapore, to the were well represented at her welcome, Law Society of Singapore, to the Prime The Legal Profession Act 2004 (“the with the heads of all Victorian courts Minister of Australia and to other relevant 2004 Act”) will commence with effect present: 25 Judges and Magistrates from Australian Cabinet Ministers, calling for from 12 December 2004. Representatives Victoria; 37 Victorian Senior Counsel re-consideration of Mr Nguyen’s petition of the Bar Council have met with the Legal and 7 Junior Counsel from Victoria. The for clemency. Services Commissioner, Ms Victoria Marles, large Victorian attendance in Canberra So far as I am aware, this is the only to consult with her as to the extent of the showed the high regard and affection in occasion in its 120-year history that the Bar’s role in the regulatory regime under which Justice Crennan is held by the legal Victorian Bar has sought to be heard the 2004 Act and, in particular, the status profession in this State. in relation to the merits of a petition of rulings and guidance given to barristers in an individual criminal case. The call by the Ethics Committee. It is hoped that NEW SILKS for re-consideration of the petition for these issues will be determined prior to On 24 November 2005, the Chief Justice clemency set out Australia’s substantial the commencement of the 2004 Act. of the Supreme Court announced and signifi cant interest on the facts of the the appointment of 15 new silks. At case based on one ground for clemency PROPOSED RE-DEVELOPMENT OF ceremonial sittings of the Supreme enumerated in the relevant provision of THE SUPREME COURT Court and of the Federal Court on the Singapore Constitution. Recently, there has been publicity 6 December, the new silks announced The Bar has received one response concerning the proposed re-development their appearances. The photograph from the President of the Law Society of of the Supreme Court. One aspect of the taken that day adorns the cover of this Singapore. That response is, in essence, proposal is the demolition of the old High edition of Bar News. The details of the that the Society is unable to act on the Court Building in Little Bourke Street, a new appointments will be published in request contained in the Bar’s letter. building of historical and architectural the Autumn 2006 issue. I congratulate the signifi cance. To enable members to new silks on their appointment and wish LEGAL AID be fully informed on the proposed them the very best in this next step in In the last edition of the Bar News I re-development, the Bar Council has their careers. referred to the Bar Council’s attempts to arranged for the Department of Justice
8 to give a presentation on the proposals. QC. On behalf of the Bar, I thank Paul conducting the workshop. In addition, At this stage, the Bar Council has not for his enormous contribution and for I also thank Barbara Walsh for her resolved on any particular position in his work as Chairman of the Readers’ contribution in organising and assisting at relation to the proposals. Course Committee. There is an account the workshop. Barbara has done this work of the Readers’ Course Dinner held in over the entire time that the workshops READERS’ COURSE 25 YEARS the Essoign on 10 November 2005 in have been conducted and the Bar is The Bar Readers’ Course is celebrating this issue of Bar News. At the dinner, grateful to her for her work over this long its 25th anniversary this year. In 1980, Samuel Vavala, a public prosecutor, and period of time. under the Chairmanship of Hartog Aaron Mane, a public defender, both from Berkeley QC, the Bar Council established the Solomon Islands, presented the Bar SUCCESS FOR BOBSLED COACH the Readers’ Course. Federal Court with an intricately carved dark wooden WILL ALSTERGREN Chief Justice Michael Black was the sculpture depicting sea creatures central Congratulations are due to Astrid Loch- foundation Chairman of the Readers’ to life in the Solomons, which now has Wilkinson and Kylie Reed who have Course — refered to by some as “the pride of place in the Neil Forsyth Room. claimed Australia’s fi rst bobsled medal, Headmaster”. Stephen Charles, Professor driving to silver in the opening Europa the Honourable George Hampel QC and ADVOCACY TRAINING IN PAPUA NEW Cup event of the season in Igls, Austria. retired County Court Judge Michael GUINEA 15 YEARS Congratulations are due to their coach, Kelly QC were all signifi cantly involved This is the 15th year the Bench and Bar barrister Will Alstergren. Will is also the in the establishment and early years of have conducted the Advocacy Skills team captain and pilot for the bobsled the course. David Ross QC designed the Workshop at the Legal Training Institute “Aus 4” team currently competing in educational objectives and Rex Wild QC, of Papua New Guinea. This workshop Europe in the qualifying races for the now Director of Public Prosecutions in is the advocacy component in the fi nal Winter Olympic Games in February 2006. the Northern Territory, structured and examinations for admission to practice co-ordinated the fi rst course. The fi rst in Papua New Guinea. Those teaching FINALLY Readers’ Practice Course Committee in the course held in October 2005 were On my own behalf, and on behalf of the consisted of retired Chief Justice Phillips, Paul Coghlan QC, Director of Public Bar Council, I extend best wishes to all Master Michael Dowling QC and David Prosecutions, Ian Hill QC, Her Honour members of the Bar for the vacation Ross QC. Magistrate Lesley Fleming and barristers period. Paul Santamaria S.C. has completed Geoffrey Steward, Julie Condon, Martin two years as Chairman of the Readers’ Grinberg and Ronald Gipp. On behalf of Kate McMillan S.C. Course Committee and is now stepping the Bar, I thank all of the people who Chairman down and has been replaced by Ian Hill provided their time and expertise in
9 Attorney-General’s Column State-sanctioned Homicide the Antithesis of Every Value We Share with Other Nations
Y the time this edition goes to print, rejects any form of mandatory sentencing. the fate — the ultimate fate — of In fl outing the discretion of Singapore’s Ban Australian citizen will have been judiciary — in requiring a penalty, no decided by an Executive Government of matter what the situation — this law another country. At the time of writing, abdicates its primary responsibility to the Government of Singapore has just be the instrument of justice — yes, a set a date for the execution of Mr Nguyen device that implements punishment, but Van Tuong and, while thousands around also one which offers an opportunity for the nation and even across the globe redemption, for rehabilitation — one that stage demonstrations of their support is capable of leniency and compassion. for Mr Nguyen and for their abhorrence I know that various members of the of the death penalty, state and federal Bar, and the Bar community as a whole, governments make their fi nal pleas for have been working tirelessly on behalf of clemency. Mr Nguyen. I’m also aware of the ongoing It is surreal, in the extreme, to think work of many at the Bar for others around that, in the 21st century, we could fi nd the world who face a similar fate and, on ourselves in such a situation. Obviously behalf of the Government and the people it would be naïve to suggest that of Victoria, I take this opportunity to countless acts of brutality do not occur express our appreciation. I know that, every day around the world. State- whatever the outcome of Mr Nguyen’s sanctioned homicide, however, is the case, Victorians share in your reverence antithesis of every value we share with contraband. He has done what, in the for the value of Mr Nguyen’s life, no other nations who, like Singapore, have tradition of most Commonwealth legal matter what his actions; and condemn a inherited the tradition of the rule of law. systems, would earn him a reduction in penalty that is utterly disproportionate to I believe — and the Bracks Government sentence. Yet the relevant law not only any offence, let alone the offence to which believes — that the right to life is the authorises but demands the imposition Mr Nguyen has admitted — one that, most fundamental human right of all and of death, demonstrating no fl exibility ultimately, devalues the lives of us all. that the authorisation — the imposition — or consideration for the individual and This is why it is crucial that of its calculated and detached termination inevitably differing circumstances of each governments, and in particular the is, quite simply, an abomination that case. Federal Government, do everything within must be reviled no matter what the This is an extreme example — and their power to restate our veneration circumstances, no matter the gravity of I wish it were only a theoretical one for human rights and aggressively lobby the offence. — of why the Bracks Government utterly other countries around the globe that As readers will appreciate all too apply a mandatory death penalty. Just as keenly, Mr Nguyen’s case makes the the efforts of individuals at the Bar and of circumstances in which this penalty organisations like Amnesty International may be imposed even more horrifying. Our collective efforts became a global campaign to save the life Having admitted to attempting to traffi c a must begin to turn the of one man, so our collective efforts must substantial quantity of heroin to Australia tide against a form of begin to turn the tide against a form of through Singapore, he has demonstrated punishment that needs to punishment that needs to be relegated to signifi cant remorse, pleaded guilty, the annals of history. cooperated at every stage with police be relegated to the annals and even agreed to testify against those of history. Rob Hulls on whose behalf he was transporting the Attorney-General
10 Legal Practitioner’s Liability Committee Bar Defence Looking at the Legal Profession Act 2004 from an insurance and risk management perspective
rules for approved Clerks, and the The LPLC has received a number of requests right of the Victorian Bar to make rules for advice as to any specifi c insurance or risk and standards for the conduct of legal practice (subject to approval by the management implications for barristers arising Legal Services Board). • Professional indemnity insurance from the Legal Profession Act 2004 (“the Act”) through the LPLC is unchanged. • Advocates immunity from liability for which takes effect on 12 December 2005, and negligence is preserved (see section repeals the Legal Practice Act 1996 (“the old 7.2.11). • Costs and disclosure obligations are Act”). the most signifi cant area of change for barristers, with the new regime HIS article is a brief response to orders as under the old Act, with the representing a general tightening of those questions. Key features of the exception that the jurisdiction to make laws designed to improve disclosure TAct are explained below. compensation orders is increased from and provide clients with even greater • Creation of the Legal Services Board, $15,000 to $25,000. rights to withhold payment if disclosure to replace the Legal Practice Board Note, that as the LPLC professional obligations have not been observed, as the peak regulatory body for the indemnity policy responds to civil and to have costs reviewed. Victorian legal profession. complaints by a client alleging There is no substitute for a full review of • Creation of the position of Legal pecuniary loss caused by a barrister’s these laws by all barristers, and readers are Services Commissioner, to replace the negligence, such complaints should be referred to Part 3.4 of the Act, particularly Legal Ombudsman. The Legal Services notifi ed immediately to the LPLC upon sections 3.4.9–3.4.45 inclusive. In reading Commissioner will now be the sole receipt. these sections, readers should note that a gateway for receiving civil complaints/ • Facilitating interstate legal practice disputes (including costs disputes) by granting locally admitted lawyers and disciplinary complaints made the designation of “Australian legal against barristers. The Legal Services practitioner”. The Act provides (see Commissioner may choose to refer section 2.2.2) that a person must not TA I LO R I N G such complaints to the Victorian Bar for engage in legal practice (a term which is investigation, though whether she does not defi ned by the Act, and is therefore Suits tailored to measure so, and the extent of any delegation, left to case law) unless the person is remains to be seen in practice once an Australian legal practitioner. This Alterations and invisible the Act commences. There are some reservation of the right to practice mending powers the Commissioner cannot is mirrored in corresponding laws in delegate (see section 6.3.12). other States. Quality off-rack suits A client may make such a • New provisions relating to Incorporated Repairs to legal robes complaint within six years after the Legal Practices and Multi-disciplinary conduct complained about allegedly Partnerships are of no relevance to Bar jackets made to order occurred (see section 4.2.5). The Act barristers whose legal profession rules now provides that they will fi rst be will continue to require that barristers investigated by the Commissioner, and engage in sole practice — refer to suitable cases will be subjected to a Victorian Bar Practice Rule 114. mediation process. If the complaint • Provisions relating to legal practice LES LEES TAILORS cannot be resolved, the Commissioner generally are largely unchanged, with Shop 8, 121 William Street, will notify the parties, and the client the provisions of the old Act restated, Melbourne, Vic 3000 then has 60 days to apply to VCAT including the prohibitions against Tel: 9629 2249 (the Legal Profession Tribunal is now compul-sory clerking, compulsory Frankston chambers and compulsory robing. Co- constituted as a division of VCAT) for Tel: 9783 5372 the complaint to be heard. VCAT has advocacy and direct-access briefs are the same range of powers to make preserved, as well as trust account
11 barrister is regarded as a “law practice” where the client has waived disclosure; disclosure as part of the materials for the purposes of the Act. where the client is a public company briefed. Some sections which are noteworthy or a foreign company, or subsidiary of • Section 3.4.17 — any failure to make from a “risk management” perspective either; or where the client is another a required disclosure under the Act (paraphrased for brevity) are: lawyer. relieves the client of the obligation • Section 3.4.10(2) — a barrister • Section 3.4.13 — This is a new to pay the legal costs rendered, and retained by a solicitor must disclose obligation, and one which barristers proceedings cannot be maintained to the solicitor the basis on which the should carefully note. Before for recovery of costs unless and until barrister’s costs will be calculated; an settlement of litigious matters, a the Supreme Court Taxing Master has estimate of the total legal costs, or barrister must disclose to the client a reviewed the bill. This section also range of estimates with an explanation reasonable estimate of the legal costs provides that any failure to make a of the major variables affecting the payable by the client if the matter is required disclosure may amount to calculation; and details of billing settled (including costs payable to the unsatisfactory conduct or professional intervals. This information is necessary other party), and a reasonable estimate misconduct. to enable the solicitor to in turn of any costs recovery available from • Section 3.4.35 — all bill of costs must comply with his/her obligation to make another party. When the barrister is be accompanied by a written state- the necessary costs disclosure to the instructed by a solicitor (as will usually ment explaining the various avenues client. be the case), then the barrister does open to the client to dispute the costs In the case of direct access briefs, not have to make this disclosure if charged. the barrister’s disclosure obligation is the solicitor has done so. However, As costs disputes can and do often much broader than where the retainer the obligation would seem to be on escalate into a much larger professional is via a solicitor. Section 3.4.9 details all the barrister to satisfy himself/herself negligence claim, barristers should think of the matters that must be disclosed that the instructing solicitor has in fact carefully when considering their options to the client, and these generally made the necessary disclosure — and for recovering outstanding fees. The Act repeat the provisions of the old Act. if not so satisfi ed, the barrister could now contains more “consumer safeguards” Exemptions from the disclosure not say he/she has discharged his/her than ever, and it would be advisable to obligation are set out in section 3.4.12 own disclosure obligation. As a matter seek independent and objective opinion and are also similar to exemptions of practicality, it would seem to require from a professional colleague before under the old Act — they include the barrister to call upon the solicitor initiating Court action. where the costs do not exceed $750; to produce a copy of the solicitor’s
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12 Ethics Committee Bulletin Unreported Judgments
HERE is an increasing tendency, in In addition, discretion should be which the substance, as distinct from Court and Tribunal proceedings, to exercised before using such reports in mere choice of phraseology, is not to be Tcite unreported decisions obtained Court proceedings. In the Supreme Court found in any reported judgment. on the internet, without regard to Rule 85 of Victoria counsel are expected to adhere In the Federal Court of Australia, of the Rules of Conduct. That Rule states: to Practice Note 4 of 1986 which, in counsel should adhere to Practice Note 19 essence, states: issued by the Chief Justice on 14 August If a barrister intends to rely on an unre- • Leave should be fi rst obtained to cite 2003. It states that a party who intends ported decision then, before doing so, unreported judgments. to cite from an unreported case must it should be brought to the attention of • Before leave is sought notice of provide photocopies of the case for the opposing counsel, and if necessary a copy intention to apply for leave must be use of the judge or judges and each party supplied in suffi cient time for proper con- given to the Court and to all parties in during argument. sideration of it. the proceedings. The Committee recognises that • Counsel should give an assurance that different or other practical considerations Depending on the circumstances, and the unreported judgment contains may apply to State and Commonwealth the course of submissions, it can be unfair some statement of principle relevant to administrative tribunals. But to the extent and embarrassing to not bring the decision an issue in the matter before the Court that such proceedings will involve the to the attention of opposing counsel until that is either binding on the Court or use of unreported Court cases, Rule 85 the moment of reliance on it. entitled to special consideration and of nevertheless applies.
Opening of the Legal Year Monday 30 January 2006
The services for the Opening of the Legal Year are as follows: St Patrick’s Cathedral at 9 am (Red Mass) Albert Street, East Melbourne St Paul’s Cathedral at 9.30 am Cnr Swanston and Flinders Streets, Melbourne Melbourne Hebrew Congregation at 9.30 am Cnr Toorak Road and Arnold Street, South Yarra
12 13 News and Views A Special Sitting of the High C the Honourable Justice Susan Courtroom 1, High Court of Australia, Canberra on Tuesday,
Attorney-General The Honourable Philip Ruddock MP AY it please the Court. person to be appointed to this Court, leadership abilities — Your Honour was On behalf of the Government the thirteenth Victorian and the second School Vice-Captain in your matriculation Mand the people of Australia, it woman. year. is both an honour and a privilege to be Your Honour’s appointment is recogni- They also speak warmly of Your present at this special sitting to welcome tion of the intellect, skill, determination, Honour’s sporting ability — particularly the Honourable Justice Susan Maree and commitment to justice displayed in netball — and the enthusiasm with Crennan. I extend to Your Honour con- throughout your career. which you took part in the school’s social gratulations and best wishes on your Born in Melbourne, Your Honour life — writing for the school magazine and appointment to the Bench of the highest attended Our Lady of Mercy Convent in attending St Patrick’s Day parades. court in our country. Heidelberg. Your former teachers speak Your Honour also revealed a wry sense Your Honour becomes the forty-fi fth highly of your intellectual, academic and of humour.
14 Court of Australia to Welcome Crennan , 8 November 2005
another friend placed an advertisement in David Bennett QC, who is also in court one of the school magazines. today. The advertisement read: “Wanted. Your Honour proved to be talented, One old bomb and driver to transport two energetic and extremely hard-working — travel-weary Matrics to school.” Failing also very fast on your feet. The Solicitor- that, you asked if “some generous person” General recalls an occasion when you could install a ski-lift. attended six mentions across fi ve courts Your Honour, should not face the in one morning! same problems here. I have been reliably At the end of that year, Your Honour informed that the lifts in this building have returned to Melbourne with your family been recently refurbished ... Your Honour and began to practice at the Victorian can travel express from the basement Bar. car park to your chambers on the ninth Your Honour built a successful broad- fl oor. based practice, developing particular Since leaving school, Your Honour has expertise in commercial, constitutional had three distinct careers. and intellectual property law. You began your fi rst career — work- You were regularly briefed by the ing as a trademark attorney ultimately Commonwealth, and a number of instru- qualifying as an Associate of the Institute mentalities — as well as appearing for of Patent Attorneys of Australia — after numerous other parties of different per- completing a Bachelor of Arts in English suasions. literature and language at the University You also had the distinction of being of Melbourne. led by successive Commonwealth You met your husband Michael during Solicitors-General commencing with Sir this time when you were both studying Maurice Byers QC. the compulsory subjects of Old Norse and Your Honour appeared before this Anglo-Saxon. Court as a junior on a number of occa- Your interest in English has contin- sions, including for the Victorian ued. One colleague has said that you can Government in the landmark section 92 become as impassioned about points of case Cole v Whitfl eld. grammar as you can on the fi ner points You have also written widely on a of the law! range of subjects — Your Honour’s dis- You then became a teacher in order to sertation on “The commercial exploita- work part-time while your children were tion of personality” was widely recognised small. as an engaging and instructive account Meanwhile, you also began studying of Australia’s approach to intellectual Chief Justice Murray Gleeson law part-time — fi rst at the University of property. presenting the oath of offi ce to Justice Melbourne, then completing your degree In 1989, only 10 years after becoming Susan Crennan. Watched by former at the University of Sydney. a barrister, Your Honour was appointed Justice Sir Daryl Dawson, High Your Honour was also later to complete a Queen’s Counsel — a well-earned Court Chief Executive and Principal a postgraduate Diploma in History from endorsement of your talents and ability. Registrar Chris Doogan (standing in the University of Melbourne in which you Within a year, Your Honour was front of the Bench), the Chief Justice’s were awarded fi rst class honours for a appointed senior counsel assisting the Associate Greg O’Mahoney, Chief thesis on aspects of constitutional history. Royal Commission into the collapse of Justice of the Federal Court Michael Within weeks of completing your law Tricontinental, a two billion dollar corpo- Black (partly obscured), and Justice degree, your third and fi nal career change rate disaster. Michael Kirby. took place, when you were admitted to The issues were particularly complex practice in February 1979. and diffi cult. However, your hard work, In 1962, in your last year at the school, From the beginning you kept very good intellectual and administrative ability tired of the very steep climb up Cape company — reading with the present — and your skills at cross-examination Street to the main gates, Your Honour and Commonwealth Solicitor-General, Dr — were widely recognised.
15 One key fi gure in another corporate tion of your outstanding ability, Your Victorian silk — and your family, includ- collapse from the same era likened being Honour was appointed to the Federal ing your granddaughter, Hannah, are here cross-examined by Your Honour to going Court where you have served with distinc- with you today. up against some of the all time greats of tion. The leadership and community spirit They must be justly proud of your Australian Rules Football. you fi rst demonstrated at school has also achievements. “It’s a bit like being picked for fullback continued throughout your professional I understand that your mother, Marie against Gary Ablett,” he said at the time. life. Walsh, who unfortunately passed away The Royal Commission also provided Your Honour has served on numerous only recently, knew of your appointment one of the few occasions on which Your legal and community-based committees. to the High Court and was very proud. Honour has been professionally upstaged. In 1993, you were elected Chairman I know that Your Honour’s experience, Your Honour was making your fi nal of the Victorian Bar Council — the expertise, wisdom and compassion will submissions, with your back to the win- fi rst woman to chair any Bar Council in ensure that you carry out your new duties dows overlooking the Port of Melbourne. Australia. with distinction. As you spoke, opposing counsel, their One of your most notable achieve- My belief is endorsed by one who instructing solicitors, and others in the ments was to establish a formal pro bono has known you for more than 45-years commission, became increasingly dis- scheme, with the cooperation of the Law — Sister Bonaventure, now known as tracted. Institute, and the Victorian Government. Sister Mary — one of your former school This was quite an unusual experience The following year, Your Honour teachers at Our Lady of Mercy Convent in for Your Honour as Your Honour’s submis- became the fi rst woman President of Heidelberg. sions were normally received with at least the Australian Bar Association. You have Sister Mary set and marked the exam polite attention. also served on the Human Rights and which won you a scholarship to the But you persevered until fi nally even Equal Opportunity Commission; and school. opposing counsel stood up to look out the on the board of the Victorian Legal Aid She said your success had not sur- windows. Commission. prised her. At about this point, Your Honour Your Honour has maintained close ties Your Honour was, she said only a few turned and saw a gigantic fi re blazing on with the University of Melbourne. days ago, “an outstanding student, but Coode Island. You have served as a member of its Law she also had a strong sense of justice and A lightning-strike had ignited more School Foundation, and you have champi- would champion a cause. If something than eight million litres of toxic chemi- oned a scholarship scheme for Indigenous needed to be put right, she would put it cals, forcing the evacuation of more than people. right to the best of her ability”. 250 people from the nearby factories and Despite the demands of a legal career, On behalf of the Government and ships. you and your husband, Michael, have the people of Australia, I extend to Your Total damage was estimated at about raised three children — Daniel, Brigid Honour warmest congratulations on Your $20 million. It had taken an event of this and Kathleen — and share a love of travel, appointment and very best wishes for a magnitude to upstage Your Honour! music, art and literature. long and satisfying term of offi ce. Just under two years ago, in recogni- I know Michael — also a distinguished May it please the Court.
Kate McMillan S.C., Chairman, Victorian Bar Council
AY it please the Court. The Victorian Bar expresses its grati- “Susan Crennan — local grandmother It is my privilege to appear tude to both of you for your support of — appointed to the High Court”. Mtoday on behalf of the Victorian the Bar when at the Bar and, following The description of you as “renais- Bar to welcome Your Honour on the occa- appointment to the Bench, for your con- sance woman” was coined by your friend sion of your appointment as a Justice of tinuing support of the Bar in its activities. of long standing, collegeaue and fellow the High Court of Australia. Your Honour’s considerable qualities judge, Justice Alan Goldberg at a dinner The president of the Law Institute of and talents have been chronicled by oth- hosted by the Victorian Bar on 29 August Victoria, Ms Victoria Strong, is here today ers today and in the media following the 2003. On that occasion, you and others representing the solicitors of Victoria. announcement of your appointment to of the Victorian Bar were annointed “liv- Our collective Victorian hearts are this Court. ing legends” of the Bar. Justice Goldberg bursting with pride on your elevation to However, not all joined in the general described you on that occasion as “very this Court. celebration of Your Honour’s appointment. much a renaissance woman with a passion We, in Victoria, are very proud that Your granddaughter, Hannah, a regular for English literature and Old Norse”. we now have two Victorians as justices weekend visitor to Your Honour, had just I suspect you are the only offi cially of this Court. Two justices who refl ect one question: “If nanna’s going to be work- recognised and designated living legend the essential qualities of the Victorian Bar ing in Canberra, what is happening about on this Bench today. — both Justice Hayne and you have been our Sundays?” In addition to your service referred to fearless and forthright advocates who The Age newspaper described you as by the earlier speakers Your Honour has have demonstrated a willingness to do the a renaissance woman. Your local paper served on the Victorian Legal Practice hard work and perform all manner of tasks — the Progress Leader — commu- Board, the Victoria Law Foundation and diligently and without fanfare. nity newspaper of the year — reported as a member of the Victorian Attorney-
16 General’s Law Reform Council. You have Turning Point of 1854. Your thesis courteous way of saying that the building also chaired the independent compensa- earned you a Diploma in History in 2002 has been made “Crennan safe”. tion panel of the Catholic Archdiocese of from the University of Melbourne (fi rst Your Honour is very proud of your fam- Melbourne. class honours). ily. No matter how busy you are, both you Beyond the law, Your Honour has been If further proof of your qualities as a and your husband Michael regularly see a a member of the Royal Women’s Hospital grandmother were needed, one would lot of your children and granddaughter, ethics committee, a board member of merely refer one’s audience to your most Hannah. Your son, Daniel, is at the Bar. Australian Book Review and a mem- recent visit to your neighbours’ adoring Your daughter, Brigid, is a writer and ber of the council of the University of two-year-old, little Jimmy O’Meara. In historian. Your other daughter, Kathleen Melbourne. order to attract your attention whilst you is an undergraduate studying arts/law at In your non legal life, you are interested were telling his parents a story, Jimmy the University of Melbourne. in literature, history and music especially was climbing all over you and fi nally in A welcome to any court is an important for voice, piano, violin and cello. You also desperation he gave you a toddler’s whack occasion and of enormous signifi cance. have strong interests in architecture and on the face. With Your Honour’s well- The importance with which we regard travel, and you are a keen cook. earned reputation for patience, you dealt today’s welcome is best demonstrated You are an avid gardener, or at least a with the issue fi ttingly by continuing on by acknowledging the efforts of so many very good overseer of Michael and oth- with your story, remaining unruffl ed and of your colleagues and friends who have ers who do the hard physical work, and unperturbed. made the journey to Canberra to join in the proud owner of a splendid garden Of course renaissance women are not today’s welcome for you. designed by the renowned Edna Walling always known for their mechanical apti- The Victorian Bar and the Victorian in the 1920s. tude — we have all read the reports about solicitors wish Your Honour a long, distin- If further proof of your qualities as a Your Honour’s diffi culties when you acci- guished and satisfying career as a judge of renaissance woman were needed, one dently leant on an emergency stop button this honourable Court. would merely refer one’s audience to and shut done the entire electricity plant. For Hannah’s sake, we hope that you your postgraduate thesis in history — We note the Attorney-General’s com- will be allowed to take more than the Transplanted Chartist Spirit: Achieving ments about the recent refurbishment of occasional Sunday off. Manhood Suffrage in Victoria: the the lifts of the High Court. This may be a May it please the Court.
Her Honour Susan Crennan responds
HIEF Justice, your Honours, Mr two brothers and my three sisters have my many debts to others. I mentioned Attorney, Mr North, Mr Martin and travelled here today not least because only my gratitude to teachers in the different CMs McMillan, ladies and gentlemen, they know fully the great debt I owe to our disciplines which shaped my life and mind I thank you all for coming here today and late parents. It is a great pleasure to have and to professional colleagues, including thank the speakers for the generosity of my husband Michael, my son, Daniel with great preceptors of the law, all of whom their words of welcome and the expres- his fi ancée Laura, my daughter Brigid with inspired and encouraged me. Without sions of goodwill from those they repre- her husband Paul, my daughter Kathleen, renaming them, I again acknowledge my sent. and my granddaughter Hannah, all here indebtedness to them. I am honoured by the presence here today. The last 16 years during which I today of Justice McHugh. When I was sworn in as a judge of the was in practice at the Bar were spent The Court is honoured today, as I Federal Court of Australia, I recorded on the 17th Floor of Owen Dixon West am, by the presence of Senator Calvert, Chambers. It was home to two great the President of the Senate, Mr Hawker, leaders of the Victorian Bar in the com- the Speaker of the House of Represent- mon law mould — John Barnard QC atives, Senator Ellison, the Minister for With the support of my and John Hedigan QC, the latter now a Justice and Customs, Sir Anthony Mason, retired judge of the Supreme Court of Sir Gerard Brennan and Sir Daryl Dawson, colleagues who have all Victoria. On the fl oor above was a great the Chief Justices of the Federal Court, given me a most cordial exemplar of the commercial and equity the Family Court and the Supreme Courts welcome and of the practitioner — S.E.K. Hulme QC. In the of the States and of the Australian Capital profession, and encouraged building next door there were two of Territory, the Solicitors-General for the the great exponents of general practice Commonwealth, and the States of New by the trust and goodwill with wide experience of juries — the South Wales, South Australia, Victoria and expressed today, I look late Neil McPhee QC and John Queensland, and the leaders of many Bar forward to discharging my Winneke QC, the recently retired, inau- associations and law societies. gural President of the Court of Appeal of I thank family members, friends, judi- responsibilities as the 45th Victoria. There are others I could have cial colleagues and former professional justice appointed to this named but for the fact they remain in colleagues from the Bars for their attend- court. practice or are serving judges. As bar- ance. It means a great deal to me that my risters those mentioned all played a vital
17 role in the administration of justice. They impossible not to feel the weight of the ing a conception of Australia’s history and inherited and were masters of the high responsibilities involved. nationhood in which all Australians can techniques of the common law. They Alfred Deakin introduced the Judiciary expect justice according to law. passed these on. No advocate of any Bill into the Parliament on 18 March 1902 Over time, particularly the last two consequence at the Victorian Bar during with a perfect sense of the distribution of decades, there have been many changes their time was oblivious to their powers or sovereignty under the Constitution and in the practices of the Court, the work indifferent to their example. within our democracy. He said of the which comes before it and the variety of The period from 3 February 2004 until Constitution: the legal issues of public importance in 31 October last, which I spent as a judge respect of which special leave is granted. of the Federal Court, has left me with an . . . the statute stands . . . but the nation Those developments have occurred indelible impression of the differing claims lives, grows and expands. Its circumstances against a background of signifi cant social of trial work and appellate work and the change, its needs alter, and its problems change and major shifts in public and pri- need for enough time for refl ection when present themselves with new faces. The vate values. undertaking both. organ of the national life which preserving But the images to which I have referred Sir Nigel Bowen charted a distin- the union is yet able from time to time to of a judiciary which transfuses “fresh guished course for the Federal Court, transfuse into it the fresh blood of the living blood” into our polity and of “the law as a which has been maintained by the hard present is the judiciary of the High Court of living instrument” conjure up the human work and high calibre of its judges who Australia. qualities needed for the impartial dispen- now deal with a much expanded volume sation of justice according to law. It has of work. My working relationships with He compared changes to the been the high reputation and abilities of all the judges were extremely cordial and Constitution which could be effected by the judges of this Court, which have com- constructive and I learnt a great deal from a referendum with developments by this manded the confi dence of the Australian them about the tasks of judgment writing Court and he said: community, which in turn is so essential and the effi cient management of a judge’s to the authority of the Court and to the workload. . . . the court moves by gradual, often indi- maintenance of our civil society. I particularly record my gratitude to my rect, cautious, well considered steps that I am conscious of such matters and the former Chief Justice, Michael Black, not enable the past to join the future, without responsibilities they entail, and, in that only for the support he gave his judges, undue collision and strife in the present. connection, I am especially conscious of but also for his many kindnesses. the loss to the Court of my predecessor, The work of this Court is, of course, Half a century later, on 7 May 1952, Justice McHugh. He had a commanding very different. This Court is an inte- on the occasion of fi rst presiding as Chief presence and a powerful voice on the gral part of the life of the nation, with Justice of this Court in Melbourne, Sir Court. He always showed an acute under- the responsibility of maintaining the Owen Dixon said the High Court had standing of the way history illuminated Constitution and interpreting it in accord- always administered the law “as a living the principles of the law and could guide ance with what Alfred Deakin called “the instrument not as an abstract study”. the resolution of a legal problem. He needs of time”. When I fi rst took judicial offi ce I remarked made a great and enduring contribution to The Court is also the fi nal court of that a living instrument has a past, a the development of the common law. appeal in criminal and civil matters and present and a future and encompasses With the support of my colleagues who determines disputes between citizens and both continuity and change. have all given me a most cordial welcome government and between governments Now, over a full century later, which has and of the profession, and encouraged by within our federal system. Because judi- seen the abolition of appeals to the Privy the trust and goodwill expressed today, I cial power must be exercised in accord- Council in 1986, the High Court has had look forward to discharging my respon- ance with judicial process it is the fi nal the ultimate responsibility for the devel- sibilities as the 45th justice appointed to protector of the rights of citizens. It is opment of Australian common law match- this court. Building a new home or investment property? Our Building and Construction team can assist with: Building project advice New home and renovation contracts Building disputes — domestic and commercial Off the plan sales advice Warranty insurance disputes Level 13, 469 La Trobe Street, Melbourne 3000 Tel: (03) 9321 7836 Email: [email protected] www.rigbycooke.com.au
18 News and Views Victorian Bar Superannuation Fund Annual General Meeting held on Wednesday 16 November 2005
Philip Kennon QC, Chairman
have described Barfund’s fi nancial year dividends. There is no exposure to results as satisfactory, for three basic exchange rate risk as is the case with Ireasons. international equities. First, on an after tax, manager and Barfund would welcome any feedback administration fees basis, the result of from members as to whether this proposal 12.1 per cent for the balanced investment would be attractive to them. option (which holds 75 per cent of I must point out that this general members’ funds) is in line with the Mercer discussion this evening should in no Median Manager (MMM). way be construed as investment advice. Secondly, over the longer term, Members should seek advice from a especially fi ve years, Barfund has licensed fi nancial investment adviser on outperformed the MMM. all investment matters including which Thirdly, and perhaps this is the most investment option is appropriate for satisfactory point, Barfund’s balanced them. option has not had a negative result On 30 May this year Barfund, since its inception in December 2002, assisted by its assets consultants, Jana unlike many comparable funds over the Investment Advisers, conducted a same period. So Barfund’s performance well attended seminar. A wide range continues to hold true to its fundamental of superannuation topics was covered, objective, which is that members should including an investment market update not lose their money. Philip Kennon QC. and the important 2005 Budget changes Accordingly, Barfund’s two core to superannuation. Australian equity managers 452 Capital an allocated pension may now be looking Again, the Directors thank David and Maple–Brown Abbott are value-style at a much longer investment horizon in Holston and Greg Clerk of Jana Investment managers who have sold down equities relation to equities than was often the Advisers for their tireless contribution to and now hold higher balances in cash and case, for example, where a member took the affairs of Barfund. other conservative assets than the average out a lump sum on retirement. In this Again, I thank our dedicated secretary, manager. This repositioning should place new allocated pension environment the John Ames, and my fellow directors the fund in a sound position if there is a greater volatility of the higher growth Jonathan Beach QC (Deputy Chairman), retreat in equity markets going forward. option may be less of an issue than it has Melanie Sloss S.C., Ross Macaw QC and This solid and steady performance over been in the past. Paul Cosgrave for their great work and the longer term may explain why about 75 With these considerations in mind, sound judgment. per cent of members have chosen the Barfund is considering the introduction of balanced option. a fourth member investment choice (MIC) However, Barfund does offer three option. This option would invest 100 per THE ESSOIGN investment choices — capital stable, cent of its assets in Australian equities Open daily for lunch balanced and high growth — each having through listed investment companies See blackboards for daily specials a different asset mix, volatility and risk. (LICs) at a low management cost. The A higher growth option may become track record of the quality LICs has been Happy hour every Friday night: 5.00–7.00 p.m. Half-price drinks more attractive to members with the very good over long periods of time. These Great Food • Quick Service • Take-away food and advent of the allocated pension. LICs basically invest in leading Australian alcohol. Ask about our catering. A member who on retirement takes stocks which pay generous fully franked
19 News and Views The 2005/2006 Victorian Bar C
20 Council
1st Row Seated (L-R): Mr Jack Fajgenbaum QC Mr Michael Shand QC (Senior Vice-Chairman) Ms Kate McMillan S.C. (Chairman), Mr Mark Dreyfus QC (Junior Vice-Chairman) Mr Paul Lacava S.C.
2nd Row Seated (L-R): Mr Philip Dunn QC Mr Cahal Fairfi eld Ms Liza Powderly Mr Iain Jones Ms Kerri Judd Dr David Neal Standing (L-R): Mr Michael Colbran QC Ms Rachel Doyle Mr Peter Riordan S.C. Mr Anthony Burns Mr John Digby QC Mr William Alstergren Ms Fiona McLeod S.C. Mr Justin Hannebery (Assistant Honorary Treasurer) Mr Charles Shaw Ms Kate Anderson (Honorary Secretary)
Absent: Mr David Beach S.C. (Honorary Treasurer) Ms Penny Neskovcin (Assistant Honorary Secretary)
21 News and Views Criminal Bar Association Farewells Judge Kelly, Former Judge of the County Court
Speech by Sir Daryl Dawson
ILLIAM Michael Raymond Kelly. But some of us have known him for a Most of us have only three names, very much longer time than that. And he’s Wbut Kelly, appropriately, has four. always been a man with considerable fl air Appropriately, because His Honour has and panache. never been an inconspicuous person. If nothing else, his dress has always or Bowler hat doesn’t invite attention, then Many of you here tonight have only known marked him out in a profession not noted a monocle and a watch-chain with a large Kelly as a judge — a very distinguished for its reticence. If a black jacket and Hunter at its end certainly does. It can be judge of the County Court of Victoria. waistcoat, striped trousers and a Homburg an experience to walk down a city street with Kelly and realize that all eyes are turning in your direction. And the waiter and the other diners in a restaurant are invariably galvanized when he fl ourishes his monocle before proceeding to read the menu. Kelly has always maintained that he dresses in this way because it’s economical and saves him from thinking about what he has to wear each day. He can buy two or more pairs of trousers for every jacket. But the real reason, as he confessed one day, is that in this world, which is grey and dreary to many, he feels a duty to add a little colour to brighten their day. Of course, Michael can even manage to create an effect unconsciously, as he did on the day on which he caught fi re. He was appearing in General Sessions before the late Judge Cussen and a jury. In those days the County Court sat in the Supreme Court building. During the luncheon adjournment Kelly was smoking his pipe. Before going back into court, he Sir Daryl Dawson. shoved it into his pocket. Some way into
22 I don’t know how many nights Kelly never actually made it home to Kew. This became easier when he acquired a motor car. Not, of course, any old motor car, but a very large, pre-war Citroën. It was powerful and known in France as the Bandit’s Delight and in England as the Big Six. It was the car that Maigret drove and all Citroëns of that model in Europe were acquired for use by the Gestapo during the second world war. It was a car that suited Kelly. At about this time Kelly was about to enter a wonderful marriage and regularise his social life. Its beginnings were, however, not altogether auspicious. The happy couple set out in the Citroën for their honeymoon. On their way back from the Hawkesbury River they got as far as Seymour when the Citroën started to throw a con-rod. Kelly managed to fi nd a service station and there contemplated the heap of white metal which he scooped out of the sump. Now it was not easy to have major repairs done to a veteran Citroën Big Six in a place like Seymour. The couple found an indifferent motel opposite the service station, but Seymour in winter was not exactly a vibrant place to end your honeymoon in a befi tting manner. It was winter, raining and the summer dust had turned to mud. After four days, in need of comfort, Kelly repaired with his bride, Michelle, a no doubt very skilful cross examination Kelly began his practice at the Bar in to the nearest pub. That turned out to of a witness, he noticed that the jury 1958 by appearing in Petty Sessions. Most be fortunate because members of the were giggling and nudging one another. of us did then. They were happy days. Homicide Squad were in Seymour for The reason was revealed when the old Work was relatively plentiful and the sum a committal and were at the pub. On reservist policeman, who manned the total of those practising at the Bar was less learning of Kelly’s plight, they offered door, tapped him on the shoulder and than 200. About half a dozen came to the him a lift home in the back of the squad whispered in his ear, “Mr Kelly, you’re on Bar each year. We all knew one another car. Kelly hesitated to accept such an fi re”. Kelly stopped his cross examination very well. The work in Petty Sessions ignominious return to Melbourne. Michelle and said to the Judge, “Your Honour, I was not onerous, but it kept you in touch didn’t hesitate for one minute — she appear to have set myself on fi re”. “Well”, with the realities of life. You developed accepted for both of them with alacrity replied His Honour calmly, “You’d better your skills in advocacy at a basic level — and the couple ended their honeymoon go and put yourself out, Mr Kelly”. That’s and your mistakes had no very serious in the back of a police car driven by the what Kelly did, or thought he did. He consequences. And you had plenty of time homicide squad. came back into court and resumed his hanging around the courts or afterwards Kelly has always enjoyed the criminal cross-examination. Within minutes there in Gibby’s Coffee Lounge to relish your law, both in its practical and theoretical was more merriment in the jury box. Kelly successes or lament your failures. aspects. In practice, he was fascinated was on fi re again. This time he adjourned Kelly’s practice developed and he by the challenges which it presents to an to the corridor and put himself out with moved out of Petty Sessions. Crime advocate and by the insight it provides the water jug from the bar table. began to overtake civil work. He began by into the human condition, often starkly Of course, Kelly carried the incident prosecuting for the Crown and briefs from revealed in the criminal courts. off with great urbanity. He was a born that source were supplemented by others In the early 1970s, shortly after I took barrister. Perhaps he inherited some of from the Public Solicitor. In the end, silk, Kelly reminded me of the duty of silks his aptitude from his father, Sir Raymond Kelly was doing mainly, although never to accept briefs from the Public Solicitor. Kelly, who was the Chief Judge of the exclusively, criminal work. He prevailed on the Public Solicitor to Commonwealth Court of Conciliation and Of course, Kelly had a life apart brief me with himself as junior to appear Arbitration. But the main thing that he from the Bar. He has always been an for a man, aptly named Lawless, who seems to have inherited from that lineage instinctive bon viveur. Life at the Bar in was charged with murder. “It’ll be very was a determination not to practise in the the sixties provided plenty of scope for easy”, said Kelly, “There are only two industrial jurisdiction. good food, good wine and good company. bits of evidence against him: his girlfriend
23 who says that she saws him shoot the deceased and a cigarette packet with Lawless’s fi ngerprint on it, said to have been found at the scene of the crime.” “You get rid of the girl”, said Kelly, “And I’ll get rid of the fi ngerprint”. Now it may seem strange in these days of sophisticated techniques such as DNA testing, but at that time it was not known, although it was suspected, that a fi ngerprint could be transferred from one object to another. One day, as we were preparing for the trial, I wandered into Kelly’s chambers to fi nd him leaping about in delight saying, “I’ve done it! I’ve done it!”. He had indeed done it. He’d transferred his fi ngerprint from one glass to another with cellotape and was doing it again and again. In the end, our efforts were to no avail because Lawless dispensed with our services at the close of the Crown case and proceeded to convict himself by calling a string of unsuitable witnesses, including one on a charge of murder himself. We were briefed on the appeal, but were again sacked, only to return in response to entreaties from the cells by Lawless “on his bended knees”. This time we returned by arrangement with the Chief Justice on condition that Lawless remained in the cells for the remainder of the hearing. Thus Kelly and I have the dubious distinction of having appeared for the last man in Victoria to have been sentenced to death. The sentence was, of course, commuted. After his release from prison, Lawless suffered a stroke which acted as a sort of frontal lobotomy. He is now a gentle character occupied in doing good works in the community. In 1977 Kelly himself took silk. This was seen then as a brave move for one Judge Michael Kelly. who practiced in the criminal law. But it wasn’t really so for Kelly. By this time he’d Another case was O’Connor’s Case when Kelly came back I said to him, “He developed a healthy appellate practice which, as you all know, concerned the tried to nobble you, didn’t he?” Barwick and there wasn’t much competition at defense of intoxication at common law. had done just that. He tried to dissuade that level. His appellate work fl ourished Again I appeared for the Crown. Kelly Kelly from wasting his outstanding talents and led to a number of memorable won that appeal too, but before the case as an advocate by going on to the Bench. appearances in the High Court. began Kelly had accepted an offer of Fortunately, Kelly was unpersuaded and One of them was in Ward v The Queen appointment to the County Court. That so began a long and distinguished career in which I appeared for the Crown as the was not generally known. The case was as a County Court Judge. Solicitor-General. Kelly appeared for the heard in Sydney and Kelly and I had a Kelly has asserted that it was diffi culty Appellant who had been convicted of standing arrangement that when a case with provisional tax, that dictated his murder. The murder had taken place on fi nished in Sydney, we’d go out and have a decision to join the Court, but in fact life the Murray River down below the bank really good dinner. After O’Connor’s case on the County Court greatly appealed to in the Victorian side. Kelly successfully was over, I was making fi nal arrangements him. He had always enjoyed good company argued that the whole of the River Murray with Kelly outside the court in Darlinghurst and was the best of company himself. between the banks was in New South when someone came and summoned him There was a good deal more fellowship in Wales and that the Victorian court had to the Chief Justice’s chambers. I guessed the County Court than in other courts. He not had jurisdiction, thus rendering me that Sir Garfi eld Barwick had heard could indulge his interest in the criminal the fi rst Solicitor-General in history to from somewhere about Kelly’s pending law without having to justify his existence have lost territory to New South Wales. appointment to the County Court and by writing interminable judgments. And
24 took very seriously indeed. He hated what he thought to be the new managerialism. Computerism as an end in itself, particularly the internal website, was an anathema to him. But he was forced to succumb and was even forced, in the end, to give up smoking cigars in chambers, but only after threatening to join, fully robed, the gaggle of smokers outside the building. Notwithstanding the strains which Kelly must have placed on the ever- patient Chief Judge, he was inevitably forgiven because of the enormous contribution which he made to the work of the Court. Notwithstanding an undeniably strong personality, Kelly was, as I’ve written elsewhere, probably a lenient judge. He had a toleration for the miscreants appearing in his court and even a liking for many of them. He believed that it was his duty to keep people out of gaol Colin Lovitt QC. if possible. And despite the occasional expostulation about the law, the there was a security in being a judge of particularly new judges, have over the profession or things in general, he treated that court which would enable him to years, sought Kelly’s advice in sorting counsel with tact, understanding and enjoy his family life in a way that practice out the problems which they inevitably humanity. The guidance which he gave as a criminal barrister, however successful, encounter. Kelly has given that advice was unobtrusive and sympathetic. I know would never enable him to do. The result freely — if sometimes at length — and that counsel enjoyed appearing in his was fortunate indeed for this State. The by dint of learning and experience it has court and the presence of so many here County Court acquired a judge of the invariably been correct. He has, however, tonight is testament to the respect and highest calibre with a deep knowledge been capable on occasions of tilting at affection with which he is regarded by the of the criminal law, both substantive and the Court of Criminal Appeal with a profession. procedural. provocative ruling, but only where it This dinner is to mark the retirement Kelly didn’t relinquish his individuality would not harm an accused. It may be that of one of the great judges of the County as a judge. He remains a memorable these were the only occasions on which he Court. If that were all that it was, it would member of the legal profession notwith- was overturned by that court. be an occasion to regret the loss to that standing a quarter of a century on the The individuality which Kelly retained Court of the immense strengths of His Bench. But he was a careful and accurate on the Bench may have tried those given Honour Judge Kelly. But this dinner also judge. True it is that Kelly has an intuitive the responsibility of administering the serves to mark the appointment as from grasp of the law, particularly the criminal Court. Over time, the Court has become next year of William Michael Raymond law, but that intuition is born of great larger and its administration has become Kelly as an Acting Judge of the County scholarship. It involves a capacity to strip more complex. It has become necessary Court of Victoria. It’s an occasion, a doctrine to its fundamentals before to put new procedures in place. Kelly therefore, to reverse the old salutation applying it to the circumstances at hand. regarded many of these innovations as and to say instead of Ave atque Vale, Vale Inevitably, his fellow judges, a threat to his independence, which he atque Ave.
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25 News and Views Ross Ray QC Farewelled as Bar Council Chairman
Thursday 27 October 2005 at The Essoign
ISTINGUISHED guests, guests and fellow members of the Bar — on Dbehalf of the Bar Council, I wel- come you all to this special dinner in hon- our of: the retiring Chairman, Ross Ray QC; retiring members of the Bar Council; and members of the Bar who have given their services to the Bar over the past year and, in many cases, over many years. I particularly welcome the Honourable Justice Ken Hayne and the Shadow Attorney-General, Andrew McIntosh. Both lead extremely busy working lives. Justice Hayne’s lifestyle has been described as similar to working on an oil rig — two weeks on and two weeks off. Andrew’s lifestyle may not be quite like that. In any event, we are grateful that both of you have made the time to come here tonight. Traditionally, the Bar holds a dinner for the retiring Chairman and the retiring Bar Councillors. They are the members who are on the public record as having made a contribution to the work of the Bar. Traditionally, we have also included other members who have assisted the Bar during the past year. In 2000, when I became Chairman of Kate McMillan S.C. the Ethics Committee, I had cause to meet with Frank Costigan QC, profession- with advice and submissions for the Bar; Committee; and Alex Richards QC, Chair ally that is. We got talking, as you do, and the Trustees of Law Aid; the Directors of the EBTL Committee. one of the things we talked about was the of the Bar Super Fund; the members of Let me deal fi rstly with those members enormous amount of work done by Bar the Board of Examiners; the Directors of who are the public face of the Bar — the members on a voluntary basis that largely BCL; Gordon Ritter QC, representing the elected Bar Councillors. goes unrecognised. It is unrecognised Library Committee; Neil Young QC and At the top of the list is the former because the work is done; done without Michelle Gordon S.C., representing the Chairman of the Bar, Ross Ray QC. Ross a fuss; and it is something our members CLE Committee; the Editors of the Bar was a member of the Bar Council for 13 expect to be done. By and large, the mem- News; and Colin Lovitt QC, represent- consecutive years — always in the senior bers do not mind doing the work, but they ing The Essoign. Asked, but not able to category. For the fi rst fi ve years, he was do not often get any thanks for it. attend, were: Lex Lasry QC, Chairman a junior. He took silk in the course of the So, tonight we have included in our of the Criminal Bar Association; Paul fi fth year. His 13 consecutive years on the thank you’s the members, whom Philip Santamaria S.C., Chairman of the Readers’ Bar Council says a lot about his persist- Kennon QC has described as the “unsung Course Committee; David Denton S.C., ence, and the regard in which Ross was heroes” of the Bar. Tonight’s guests retired Chairman of the Commercial Bar held by the members. include retired members of the Ethics Association; Colin Golvan S.C., Chairman In his fi rst week as Chairman, I did Committee; members who have assisted of the Aboriginal Law Students Mentoring not hear from Ross at all. However, Anna
26 Whitney called me to say that I was Acting for three years, chaired the Counsel and effi ciently. We are extremely lucky to Chairman, and that Ross had gone to Committee for those years, worked have them and the Bar is very grateful to Mildura to run a case. A week later, I on major legal submissions, and was a them. answered the telephone. The display member of the Essoign Advisory Panel; The unsung heroes: fi rst, the members showed a number I did not recognise, but Michelle Quigley S.C., who served for of the Ethics Committee. The work of the a vaguely familiar voice said “The Eagle three years, served as Assistant Honorary Ethics Committee is an enormous commit- has landed”. It was Ross! And so, as the Treasurer for two of those years, and was ment by the members of that committee. year unfolded, a pattern emerged — from one half of the Charitable and Sporting Paul Lacava S.C. is now the Chairman of time to time we found the self-described Donations Committee; Chris Townshend, the committee and has entered his ninth “Eagle” would take fl ight, then return, col- who served for a year; Anne Duggan, who year on the committee. Also here tonight lect his fl ight plans for his Chairmanship; served for three years; Paul Connor, who on the Ethics Committee are Bill Lally QC, and on we pressed. served for two years, and who is con- Michelle Gordon S.C., and Anne Duggan. Ross’s major personal contribution tinuing to serve as a Director of Barristers The work that this committee does is and lasting legacy is in legal education Chambers Limited; and Kim Knights, who enormous and constant — the members
Margaret and Colin Lovitt QC. Tony and Deborah Burns.
Jane and Peter Riordan and Lisa Powderley, Daniel Harrison, Neil Clelland S.C., Rachel Doyle Will Summons, Sara Dennis Ian Jones. and Daniel Flood. and Justin Hannebery.
John Noonan S.C., Ross Ray Kate McMillan S.C., Gerry Nash Charles Shaw, Kate Anderson, Paul Anastassiou S.C., Sandra QC, Mara Ray and Marg QC and Gail Owen. Penny Neskovcin and Cahal Anastassiou, Peter Joplin QC, Noonan. Fairfi eld. Justice Hayne and Michelle Gordon S.C. and training. He was a member of the served for two years. All served the Bar are available 24 hours seven days a week. Readers’ Course Committee for 15 years and the Council well, and we thank them Four members of the Ethics Committee and he chaired that committee, and the for their commitment. retired in October 2004: Mark Dreyfus Legal Education and Training Committee, In addition to the retiring Bar QC, Martin Bartfeld QC and Gerry Lewis for six years. Councillors, there is a well deserved S.C. — each having served for four years Ross went to Papua New Guinea with thank you due to Kate Anderson and — and Neil Clelland S.C., who served for the Bench and Bar advocacy training Penny Nesckovcin for their ongoing work two years. team on six occasions: the fi rst four visits as Honorary Secretary and Assistant I mentioned earlier that I had cause to in 1990–93, under the leadership of the Honorary Secretary of the Bar Council. consult with Frank Costigan QC. The Bar late Robert Kent, who established the The Bar is most fortunate that Kate and owes Frank a great debt for all of the work program; then again in 2002 and 2003, as Penny have agreed to continue their he has done over his long career at the leader of the team. appointments. The work they do is time- Bar. He is a valued elder statesman of the Other retiring members of Council consuming and thankless. These two Bar. One of the reasons he is here tonight are: Michael Crennan S.C., who served undertake their work diligently, patiently is to thank him, and acknowledge his per-
27 sonal skills, that are called upon from time at a cost in terms of time devoted to the BCL to time by the Ethics Committee, when it job. Philip spends at least one day a week Paul Anastassiou S.C. has been Chairman is considered that a matter may be better on the Fund; and the other trustees also of BCL for the past two years, having dealt with by using his mediation skills. devote a substantial amount of time to inherited a well-run organisation from This type of request takes a lot of time the job. Ross Robson QC. Paul has been a director and effort; and, so far, I think it is fair to This year’s draft annual report for the for 12 years, and Chairman for the past say that his success rate has been 100 per fund. It’s to have luxury yachts on the two years. John Digby QC and Michael cent. front cover. It is apt — Kennon is a keen Colbran QC are both long-serving direc- Many members of the Bar give profes- sailor; Macaw is also well known for his tors — Colbran for 15 years. David Levin sional advice to the Bar without fee. Many sailing skills, and owns a very nice yacht; QC has retired after seven years, Michael write, or contribute to, the Bar submis- Melanie has a fi ne reputation as an accom- Shand QC after two years. The other sions made to government and law reform plished crew, and for persistence — she Directors of BCL are Peter Lithgow, who agencies. All are done without fee. Some is the only person I know who sleeps out has served for fi ve years — Caroline are here tonight, but all deserve mention: overnight to make sure she secures tickets Kenny, Wendy Harris and Paul Connor. • Alan Archibald QC — professional for the tennis. Whilst maybe not sailors, The Board of BCL is made up of quiet standards both Jonathan Beach and Paul Cosgrave achievers, with the company being run • Neil Young QC and Chris Caleo — are easily included in the metaphor, in effi ciently and frugally with the able ACCC advice that all of the Trustees have adopted a assistance of Daryl Collins and Geoff • Anthony Lang — associations incorpo- steady hand on the tiller, and they have Bartlett. The renovations in ODCE came ration act; successfully navigated a winning strategy in under budget, with substantially less • Mark Moshinsky — human rights sub- for the Fund. funding that was anticipated. In fact, so mission frugal is BCL that the only benefi t that the • Jim Kennan S.C., Jack Rush QC, Jack BOARD OF EXAMINERS Directors receive for their hard work is Forrest QC, Frank Saccardo S.C. and Bill Lally QC is the Chairman of the Board that, after the annual AGM, they attend a David Martin — torts law reform. of Examiners. Peter Jopling QC and Ron dinner — and subsequently each Director Meldrum QC are both past Chairmen. Bill receives a bill for the pleasure. LAW AID and Peter are each in their sixth year on The Bar Library is run by Gordon Ritter Peter Galbally QC has now retired from the Board. Ron Meldrum is in his eleventh QC, with the able assistance of Richard practice. For a long time he was Chairman year. Joseph Santamaria QC and Melanie Brear and Joyce Massman. Gordon and of Trustees of Law Aid, and for 10 years Sloss S.C. are also members. his team have been doing this since 1997. he was a Trustee. In June this year, The Gail Owen, who is also here tonight, Richard Brear and Liza Powderly do all Age reported that Galbally was about to leads the solicitors’ contingent on the the fi ling and organising of the library, and set off with a horse and cart to trudge Board. She has been on the Board longer Joyce organises Gordon. Gordon, you will along the dusty roads of Southern NSW. than Meldrum — I think, at least 15 years. be pleased to know that Paul Lacava is It was his fi rst trip with a cart. He pleaded She has been Chairman of the Board now on the Grants Sub-committee of the age, not size, as a defence. many times, and an outstanding member Victoria Law Foundation, so your comput- The trustees of Law Aid, David Beach and contributor. All of the members have ers for the library should be in the bag. S.C., John Noonan S.C., Frank Saccardo served with distinction, and for a long S.C. and Mary Anne Hartley, generally give time. The work of the Board is done out of CLE COMMITTEE at least one day a month to perform their hours — with hearings at night time; with obligations in assisting in the administra- sittings at least 20 times a year; with judg- Neil Young QC heads up an impressive tion of the scheme. Every month, they ments to be written and delivered; with and large group as Chairman of the CLE assess in excess of 20 new applications. In appeals to be contended with and, on one Committee. The smaller Accreditation addition, where aid is granted, they must occasion, a special sitting of a Full Court. and Dispensation Sub-committee includes monitor reports of those proceedings. The Bill Lally QC is retiring from the Robert Richter QC, Jack Rush QC, Jeremy scheme has been remarkably successful, Board at the end of the year. Bill is Ruskin S.C., Michelle Gordon S.C. and due to the strength and industry of this known as a person with great compas- David Neal, ably assisted by Barb Walsh. formidable team. I also suspect that the sion and dedication to the job. Recently, The Bar CLE program has been well and time spent by them on this work is far in a young applicant was terminally ill, and it truly launched. The initial launch was by excess of one day per month. was thought that she would not sur- Federal Court Chief Justice Michael Black vive until the usual admission date. Bill in July 2002. Then, in December 2003, BAR SUPER FUND moved heaven and earth with the Chief Justice Nettle, the inaugural Chairman of The next group is Philip Kennon QC Justice and the President of the Court the new CLE Sub-Committee, spoke at the and his fellow Directors of Barfund: of Appeal and, through his efforts, launch of the Compulsory CLE progam. Ross Macaw QC (also Chairman of the arranged a special admission ceremony Those in attendance at that second Legal Assistance Committee), Jonathan for this young woman, by video link. The launch will remember that Justice Nettle Beach QC, Melanie Sloss S.C. and Paul Chief Justice herself presided, with the put on his usual polished and erudite Cosgrave. Philip became chairman two President and Justice Nettle. This shows performance. At the time, I was standing years ago, taking over from Ross Robson the measure of Bill Lally’s qualities. The next to Justice Hayne, who commented QC. Philip has been a Trustee of the profession is indebted to him for his out- sotto voce “Look, mum! No hands.” The Bar Superannuation Fund, and then a standing contribution to the Bar and to same can be said for this group, and the Director of Bar Fund, for more than 14 the profession. Bar is very proud of the CLE program and years. The work of the Directors is done its quality.
28 In fact, the quality of the group has each year, and members look forward Michael Colbran QC and John de become known internationally. Recently, to each edition. On average, it takes the Koning have just been made life members Michelle (and Ken) were asked to lecture editors a week to prepare each edition — a rare honour — in recognition of the in Japan. I am reliably told that Michelle — four weeks each a year — a massive work done by them. David Beach pops up has been asked back to lecture next year. commitment. And with each edition there here on this committee as well and, Colin, is usually something a little controversial mate, don’t worry. Tonight Beach made BAR NEWS to engender debate for the next issue. In sure that your application for further The editors of the Bar News are Gerry addition to his commitment as an editor, funding for the Essoign was in the bag. Nash QC, Paul Elliott QC and Judy Benson. Paul Elliott QC also makes an admirable Tonight, I have touched on many mem- Bar News began in Easter 1971, with the commitment each year with his role as bers who have contributed substantially late Richard McGarvie and Justice Peter Santa at the Children’s Christmas Party. to the work of the Bar. I could not hope Heerey as co-editors. The fi rst edition was to cover all of the members and the work a modest four typed pages. THE ESSOIGN that they do on behalf of the Bar. Paul Elliott QC joined the editorial Colin Lovitt QC — he of the broad shoul- In addition to the members, the Bar committee over 20 years ago in the Winter ders, call a spade a shovel — has, one Council also recognises the partners and of 1984. Paul has been sole editor more way or another been associated with families of these people. For every slice of than once — fi rst in Autumn 1986 — and the Essoign for a long time. He was, last time spent on Bar work is a slice of time has been editor or co-editor ever since. Thursday, re-appointed Chairman of the spent away from them. This night is also a Gerry Nash QC joined the editorial Essoign Board of Directors. Colin can thank you to them. committee in the Spring of 1986, and often be seen prowling around his domain Ladies and gentlemen, would you became co-editor with Paul in Winter welcoming members, and generally seeing please charge your glasses and rise for a 1991. that everything is in order. toast — To the retiring Chairman and the Judy Benson joined the editorial com- As a business, the Essoign is turning retiring Bar Council members, and to the mittee in Winter 2002 and became co-edi- around — it is breaking even. Colin and unsung members of the Bar and to their tor with Gerry and Paul in Spring 2002. his crew, as you would expect, have devel- families. There are four editions of Bar News oped an excellent wine list.
Speech by Ross Ray at the dinner in honour of the former Chairman and retiring Members of the Bar Council N behalf of all the honoured and special guests who have contrib- Outed a great deal to this Bar, thank you to the Chairman and the Bar council for your kind words and your hospitality tonight. Andrew McIntosh and I have known each other for a long time. Andrew, your contributions at this Bar are well known. I particularly enjoyed working with you in PNG with many people including the late Bob Kent, Barb Walsh, Justice Vincent, Justice Coldrey, and others. You were a fi ne contributor and teacher in fre- quently diffi cult circumstances. My strongest memory of you is when we went to Rabaul to visit the local court house. We were being looked after by Graham Powell, a former member of this Bar. We later went out to a village at Matapit and took a small boat across to see the active volcano. We timed our visit well. The volcano was active, but did not actually erupt until about 12 months later. As we crossed the waters off Rabaul, the Ross Ray QC hot PNG sun was beating down. To shade your delicate fair complexion you placed T-shirt and shorts at the time. The fi ne Climbing that volcano was a lot like an empty carton of South Pacifi c beer citizens of Kew have seen nothing like it running a murder trial against Colin on your head. It somehow matched your — nor should they. Lovitt. There was an abundance of
29 smoke and steam and it could go off at and Christine particularly have done an I looked down the Bar Council table to any time. outstanding job. The loss of corporate Beach and Fajgenbaum squabbling. The work done by the Victorian Bench memory through the retirement of David • I will miss the unusual build-up and Bar commencing in 1991 forged a Bremner and Anna Whitney was a further of tension between two members of the great bond between us and the profession challenge that has been very capably dealt Council as a meeting was drawing to an in PNG. I have recently had a thorough with. end. General business was the last item. clean out of my chambers. It was long I want to thank Christine for the assist- Fajgenbaum spoke — a hand punched overdue. My friend John Noonan had ance she has given me during the last year. the sky in jubilant success. A bet that started calling me the “tip dweller”. I also want to thank Barb Walsh for the Jack would speak on every topic had come One of the things I found was a 1991 enormous support she has given me both home and money changed hands. letter from R.J.L. Hawke when he was as a member of the Bar Council and more The issues dealt with by the Council Prime Minister thanking the Victorian Bar particularly a member and chairman of the are all important. They are frequently, for the valuable work it was doing in PNG Readers Course over a very long period of however, recycled. The fact that they’re — rare recognition indeed from the world time. The Bar cannot function without the recycled does not mean that we should of politics. contribution of such genuinely committed not maintain an appropriate position in Since 1987 — a total of 95 lawyers have people. relation to them. attended our Readers Course from PNG, The work of many people, particularly It highlights the importance of dealing Vanuatu, the Solomons and Indonesia. Michael Shand, came to fruition in January with the ACCC and the ATO as we have During my time on Council, 85 mem- this year when the Bar was permitted to done over the last 12 months to protect bers of the Bar have served on the Council. insure with the LPLC. This will lead to the interests of the Bar. I should point out This represents a very signifi cant commit- signifi cantly increased benefi ts to mem- the ACCC’s interest in the Victorian Bar ment by many people. The strength of the bers over many years as our premium pool related to an issue fi rst dealt with in 1998. Council is in the range of seniority and increases. It was either resolved or lapsed. In the diversity of practice of the members. It The Victorian Bar is rightly held in 2003/04 Annual Report, it was referred to. was a privilege and, collectively, a pleasure high regard nationally. This is not merely That rekindled Graham Samuel’s interest to have served with those people. because of the ability of its members but — proof that someone actually reads our I recently looked at the 30 June 2005 because of its contribution to a national Annual Report. annual report. It notes: profession. The most recent example is Much of the work is frustrating but it • Twenty-three Bar Associations (or sub- the submission done by Ross Nankivell is all worthwhile to sustain a strong inde- associations) — 106 members and others from the Bar in relation to pendent profession. • Twenty-one Standing Committees of advocates’ immunity. We produced two I looked recently at an old Bar News — the Bar — 270 members excellent documents which were provided Spring 1991. The Bar News is an excellent • Six Joint Standing Committees of the to SCAG. They were adopted unanimously journal and I thank the editors for their Bar — 39 members by all branches of the Australian profes- sustained input over a very long period of • Bar appointees to specifi c positions sion through LCA and ABA. I note that time. In that edition, I saw a radical young (such as the Appeal Cost Board — court the New Zealand Law Society is also using Michael Shand, without a hint of grey hair, user groups etc.) — 157 members the submission to assist in their defence of advocating the abolition of compulsory Further evidence of the great work of the immunity with the impending appeal clerking — horror. A young and not so rad- many people to this profession. before the New Zealand Supreme Court in ical Michael Crennan was warning of the The Victorian Bar is also very well LAI v Chamberlain later this year. “shape of legal practice to come” after the served by the staff in the Bar offi ce. We What will I miss? Victorian Law Reform Commission has its have recently restructured the offi ce with • The tax effective diminution of income way with the profession. It was proposing: the appointment of Christine Harvey as — no. 1. Lay access to the Bar. our CEO in October last year. • The fl ashback to the two grumpy old 2. Practice from non BCL Chambers. Transition is never easy; the staff men in the Muppets on the balcony as 3. Dispensing with Clerks.
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30 News and Views
4. Incorporated Bar practice. 5. Partnerships of barristers. He warned also of the growth of eco- nomic rationalism pursued by the ACCC. Howell’s List: I say your crystal ball was functioning very effectively 16 years ago, Michael. Some of those changes have of course been implemented and some have not for good Twenty-Five Not reason. I note that the national profession project has led to an attempt to introduce uniform legislation across Australia. The Out 2004 Legal Profession Act is a product of that attempt and is far too complex. It comes into operation on 12 December this year. A great deal of work has been done by the Council and members to make the legislation work. I note also that one of the Bar Council’s tasks in this coming year is to reconsider and redraft our constitution — it is no longer one that refl ects the structure of a modern professional organisation. I have a plain English template that may be of some help in both tasks. The Hells Angels Australian by-laws — obtained by me in the course of a trial in 1983. 1. Patches — the equivalent of our rob- ing rules requiring uniformity of pres- entation. Note the optional city patch — a little akin to the Federal Court waiver of wigs. I note the fi ne is $100 — much simpler than an indexed pen- alty unit. 3. Explosives — we require an equiva- lent rule to moderate conduct in the Bar Council chamber — particularly to moderate the provocative contribu- tion of Beach after being seduced into a Middleton lunch. 4. Guns 5. Brothers — This simply restates our advocacy rules. Ric Howells (centre) with his wife Leigh and member of the List Committee Tom 6. No narcotic burns — A good Common Keely. Law Practice Note. 9. Kick out — the ethics committee and N Friday 2 September 2005 Court (Victoria Bennett, who on 30 the new Legal Services Commissioner over 100 members of Howells’ November 2005 was formally welcomed will be very interested in this provi- OList gathered at the Treasury as a justice of the Family Court); to the sion. I draw to the attention of the restaurant in Collins Street to celebrate County Court (Felicity Hampel QC); and shadow Attorney-General that man- the twenty-fi fth anniversary of the List’s to the Supreme Court (Kevin Bell QC and datory sentencing was introduced 20 formation. Unique among the lists in Kim Hargrave QC). years ago by this robust group. I note how it came into existence, its origins The celebration was hosted by Fran also that a tattoo is signifi cantly sim- were in the allocation of three complete O’Brien S.C., chairman of the List, pler than the Victorian Bar Roll. intakes from the Bar Readers Course, two entertained by an address replete with 11. No leave — is not surprising that intakes in 1980 (June and October) and humorous anecdotes from Judge Michael approximately 4 months ago I sent the March intake in 1981. As Ric fondly Bourke, a former member of the List; and a copy of this to Kevin Andrews and puts it, “I started out in June 1980 with 19 Ric of course responded in his typical John Howard — it has recently reap- ‘baby’ barristers.” humble fashion. peared in the public arena. What a difference two and a half And so the occasion was duly marked, Thank you once again for your decades makes. In the past 12–18 months honoured guests and list stalwarts alike hospitality and enjoy the balance of the alone, members of the List have been toasting the successful passage of time. night. appointed to the Federal Magistrates’
31 Launch of the Victorian Sentencing Manual: Online and Free to All Wednesday 16 November 2005
One of the most challenging tasks for judges is Over the past 18 months the Judicial College of sentencing. One of the most challenging tasks for the Victoria has completely rewritten the Victorian public is to understand all the factors involved and the Sentencing Manual, last published in hard copy complexities of the sentencing process. in 1999. On 16 November in County Court room 3.5 His Victoria’s Judicial College is leading the way. Gone Honour Chief Judge Michael Rozenes, Chief Judge are the days of ploughing through dusty books — now of the County Court of Victoria and member of the judges can access all necessary sentencing law and Board of the Judicial College of Victoria, launched the practice at their fi ngertips electronically. This is judging electronic Sentencing Manual. The President of the in the 21st century. Court of Appeal, Justice Chris Maxwell, responded on Now, the same information used by judges and behalf of the community announcing that the same magistrates to sentence is available to the legal manual that is being used by judges and magistrates to profession and the community free of charge through sentence is now available to the legal profession and the Judicial College’s website — www.judicialcollege. to the community free of charge through the Judicial vic.edu.au College’s website. The regularly updated electronic manual is only The President stated that this new manual is an a “click” away, not only for judges but for the public example of judging in the 21st century — open, too. transparent and up-to-date. Making it freely available The President congratulated CEO of the College, electronically to the legal profession and the community Lyn Slade, on this important initiative and the College’s is a signifi cant step in modernising Victorian Courts and work to ensure that Victoria’s judicial offi cers are kept improving service delivery to the Victorian community. in touch with the community, aware of pressing social A short DVD was played at the launch showing issues, in tune with technology, and up-to-date with features of the manual being used by Supreme Court latest developments in the law. Justice Kevin Bell, County Court Judges Michael To access the Victorian Sentencing Manual, and McInerney and Irene Lawson, Chief Magistrate Ian Gray for more information about the Judicial College of and Magistrate Lisa Hannan in their chambers and on Victoria, visit: www.judicialcollege.vic.edu.au the bench.
His Honour Chief Judge Michael Rozenes
OUR Honours, distinguished guests, November 2002, and together with His Sentencing Manual, the Victorian Trial ladies and gentlemen. Honour Judge Wodak, who has more than Manual and the Kelly (that is, His Honour Y This morning I have the pleasure, just a passing interest in matters educa- Judge Kelly) Charge Book. on behalf of the Board of the Judicial tional, we reviewed the Bench books and To my concern I saw that the Victorian College of Victoria, to launch the new manuals then available to the Judges of Sentencing Manual had last been revised electronic Victorian Sentencing Manual. the County Court. The three that form the in 1999 and that the Victorian Trial First a little history. tools of trade for any judge sitting in the Manual had not been revised since it was Shortly after I was appointed in criminal jurisdiction were the Victorian fi rst published in 1998.
32 Worse still the author of both judicial intranet. ond edition in two hard copy loose-leaf those publications was His Honour Judge In short Victoria’s judges and magis- volumes in 1999. Shortly thereafter in Paul Mullaly and he had retired on 8 July trates did not have available, in conven- 2002, his Honour also produced a hard 2001. ient and instantaneous form, current copy Cumulative Supplement. At that time I also knew that judicial sentencing information. Judge Mullaly’s Victorian Sentencing offi cers in NSW enjoyed the benefi ts of The fi rst step was to capture the years Manual was one of the most valu- a computerised sentencing manual and of missing data, a laborious but rela- able resources for those who practised database that was available not only to tively easy chore soon completed by the in criminal law — judges, magistrates and them but to prosecutors, defence counsel Department of Justice. members of the profession alike. and even members of the public. This But the job of updating the VSM, which At the time of his Honour’s retire- system contained sentencing statistics, was a necessary step to be taken before ment from the Bench it was widely recent judgments, case summaries, sen- the addition of any concept of computeri- acknowledged by the judiciary and the tencing principles and details of sentenc- sation, was a formidable one and could not profession that he was owed a signifi cant ing practice. in my estimation have been undertaken by debt of gratitude for his work in this All this was available at the click of a the Court. area. It is unlikely that in the foreseeable
mouse whether one was on the Bench, in The fi rst edition of the Victorian future a sitting judge of any court will chambers or at home. Sentencing Manual was a mighty task have the capacity let alone the permis- When we had a demonstration of the undertaken by His Honour Judge Paul sion of his/her head of jurisdiction to take NSW service here in Victoria, it was clear Mullaly in the early 1990s. the time out of court to produce such a that the judicial offi cers of this State had The law of sentencing by its very work. been left behind. nature is dynamic, so despite Judge And so it was fortuitous that, at about Not only was the sentencing manual Mullaly’s best efforts, being in hard copy, the same time as Judge Mullaly retired, out of date, but the previous govern- even before it was published in 1992 — it the Attorney-General established the ment had let the Higher Court Sentencing was out of date. Judicial College of Victoria. Statistics lapse for a number of years and A few years later Judge Mullaly again Shortly after the College commenced we certainly had nothing approaching a faced up to the task, publishing the sec- operations, a number of priorities, three
33 of which I mention here, were identifi ed Freyne, Stephen Farrow and Brett the electronic Sentencing Manual, have by the College Board. Sonnet. been outstanding achievements for the These were to: Chris and his team were committed to College, and its staff and are to be con- 1. update Judge Mullaly’s Victorian producing a resource of the highest qual- gratulated. Sentencing Manual; ity and worked tirelessly to achieve this. But wait, there is more! 2. update the Michael Kelly Charge Book; All but one of the researchers were With the establishment of the and seconded from the Offi ce of Public Sentencing Advisory Council in July last 3. develop a judicial intranet. Prosecutions to the College for varying year, the College is working with the At the outset, the College was indeed periods. Council and the Department on the next very fortunate to secure the services of By allowing several key staff to be stage of this project — the provision of Patrick Tehan QC as editor. As a very sen- seconded to the College, the OPP played timely and accurate sentencing statistics ior member of the Victorian Bar practising a signifi cant part in the success of the linked to the electronic manual. primarily in the Court of Appeal, Patrick’s project and its role is gratefully acknowl- Completion of this next stage is some expertise and experience in this area have edged. way off, but work is progressing well. been invaluable. Work progressed throughout 2004–05 Our next goal — the Kelly Charge As editor he was joined by a fi rst-rate and, because of the dedication of all con- Book — is well underway with research- editorial committee to oversee the project cerned, the electronic Sentencing Manual ers appointed and an editorial committee from its inception through to completion. is now complete. selected. Watch this space. 1. Justice Frank Vincent, Court of Appeal The completed electronic VSM com- The College Board gratefully acknowl- (as chair); prises over 2000 pages, the main features edges the support of the Attorney- 2. Judge Carolyn Douglas, County Court; being: General, Rob Hulls, for the College 3. Magistrate Lisa Hannan, Magistrates’ 1. A comprehensive table of contents. generally, and specifi cally for providing Court; 2. Search functions by case-name and by additional funding to develop both the 4. His Honour John Hassett, formerly of word. Sentencing Manual and JOIN. the County Court; 3. Latest Court of Appeal cases for each Without the Attorney-General’s sup- 5. Professor Arie Freiberg, Dean of the offence. port neither of these projects could have Law School at Monash University 4. Hyperlinks from cases to full text of been undertaken. and chair of the Sentencing Advisory cases on Austlii. It is unfortunate that due to an Council; and 5. A “Last updated” date function on each unexpected and pressing engagement else- 6. Mr Bruce Gardner, Offi ce of Public page. where the Attorney-General was unable Prosecutions. 6. An Index of all cases with direct links to be present today and so I have the The editorial committee’s fi rst task to relevant pages in the manual. pleasure on behalf of the Board of the was to decide the parameters of the I’m pleased to say that Chris Michell is Judicial College, to congratulate and thank project. now on staff permanently at the College all who have made this project such a suc- The decision that the new manual and will be updating the content on a cess and to offi cially launch the Electronic would be an electronic resource inex- regular basis. Victorian Sentencing Manual. tricably linked to the development of The two interlinked projects, JOIN and the College’s judicial intranet — JOIN (Judicial Offi cers Information Network), and this in turn dictated that a full rewrite was in order, both in terms of content and structure. Justice Chris Maxwell, President of As work commenced on the Sentencing Manual, the Judicial College’s online judi- the Court of Appeal cial working party commenced developing a JCV intranet to deliver information and T is an unusual experience to be stand- — which will be a key benefi ciary of the resources, including manuals and bench- ing in for the Attorney-General. I rather publication of this manual — I want to books, electronically to judicial offi cers. Ilike it, actually. I must talk to him about acknowledge the extraordinary work of Implementation was a collaborative a broader approach to job-sharing. There his Honour Judge Mullaly in the earlier effort with the courts, judges and mag- are a few diffi cult decisions that I’m sure editions of the manual. He created the istrates and the Department of Justice, I could make on his behalf — budgetary concept of the manual, and demonstrated which provided valuable technological decisions and so forth. the absolute necessity for it. I want also expertise and software. You’ve already heard about the pro- to congratulate the editorial committee, And so by early 2004 the development ductive fi rst three years of the Judicial chaired by my colleague, Justice Frank of JOIN was well underway. College. Lyn Slade, the Director of the Vincent. As you’ve heard, the commit- Working closely with Patrick Tehan College, was one of the early visitors to tee was unstinting in its commitment to and the editorial committee was a team of see me after my appointment. It was clear developing a work of the highest qual- researchers engaged by the College. then, and it’s become clearer since, what ity. A work of this kind takes long hours The primary research team, led by a dynamic organisation the College is. It of exacting, careful work and we — the Chris Michell, were Tien Tran and Jennifer is very much part of what I think is an legal community and, at a broader reach, Collis. exciting prospect for the administration of the Victorian community — are very Valuable research contributions were justice in Victoria. fortunate to have had the work done so also made by Tamara Heffernan, Helen On behalf of the Court of Appeal well. The quality of the work refl ects
34 Chief Judge Rozenes; Justice Chris Maxwell, President of the Court of Appeal who launched the Manual on behalf of the Attorney-General; and Lyn Slade, CEO of the Judicial College of Victoria. particular credit on the editor, Pat Tehan, The Victorian Sentencing Manual to me to exemplify the modern approach and the college researchers, led by Chris collects together the latest sentencing law to judging. It will make decision-making Michell. across a comprehensive range of offences: open, transparent and up-to-date. Those Now for the announcement. On the culpable driving, drug offences, rape and are objectives that as judges we all aspire Attorney-General’s behalf, I am pleased to other sexual offences, murder and man- to. It seems to me to be right and proper announce an Australian fi rst. (This doesn’t slaughter. Speaking from the perspective that sentencing decisions are the subject happen often in the Court of Appeal. of the Court of Appeal — and I’m sure of close public scrutiny, as everything that We usually leave such matters to the Chief Judge Rozenes would say exactly courts do should be. We are public func- High Court!) From today, the Victorian the same — the importance of a manual tionaries, discharging very important pub- Sentencing Manual will be available like this cannot be overstated. In the lic functions, and very substantial public online to the Victorian community, free of Court of Appeal, we have up to 200 sen- monies are spent on our doing so. It seems charge, through the College’s website. The tencing appeals a year. Many fail but some to me to be absolutely right that our deci- same information which is being used by succeed. In every case, we need to decide sions are examined and scrutinised, and judges and magistrates in their sentencing whether there is a reasonable argument criticised where appropriate. will be readily accessible to the legal pro- that the sentence was manifestly exces- At the same time, commentators in fession and to the public at large. sive or that the law was misapplied or that the media need to take the time and the It is entirely right that there should some relevant matter was not taken into trouble to read what is said by judges, be public access to the manual. Free account. particularly in relation to sentencing. access online will signifi cantly improve Applications for leave to appeal against To read only the sentencing conclusion understanding — amongst the public sentence under s.582 of the Crimes Act is to ignore the careful thought — often at large and amongst the media — of are heard by a single appeal judge each anxious thought — that goes into the sen- the factors involved in the sentencing Friday. The analysis I have referred to tencing decision. No one should express a process. As judges have often said, sen- takes place at the leave hearing and again view about whether a sentence is appro- tencing is a very complex task, requiring — if leave is granted — at the appeal hear- priate or not without fi rst reading every the best information available. Sentencing ing before three judges. One is constantly word spoken (or written) by the sentenc- is a balancing act — delicate and diffi cult. reminded of the already huge body of sen- ing judge in arriving at that decision. There are important, intangible inter- tencing law in Victoria — and I am only A manual like this, which collects ests to be quantifi ed and balanced and talking about recent years. To have a well- together all the comparable decisions on weighed. There are the interests of the organised, well-ordered, comprehensive, a particular offence and the sentences State, the victim and the offender; and up-to-date manual will be of the greatest imposed, should enhance the prospect there are the general aims of sentencing assistance to the court and, no doubt, to that there will be better informed dis- — retribution, deterrence, denunciation, practitioners who present their arguments cussion of sentencing decisions. For the rehabilitation, and protection of the com- in our court. manual to be available free of charge munity. The advent of the new manual seems online is a signifi cant step in demystifying
35 Interview with Magistrate Lisa Hannan con new manual
Question: Lisa, fi rstly, as a judicial torial committee was to look at whether time. This is a very easy-to-access tool aid, how would you rate the impor- this was going to be simply an update of and it’s a very user-friendly tool. I’ve tance of the contribution of the new that work or a complete rewrite. In the been lucky enough to along the way electronic sentencing manual? end, it was decided that a rewrite was have had an opportunity to use it, and Lisa Hannan: I would regard it as being necessary in terms of both content and I’ve really found it to be interactive and a core tool in terms of any judicial offi cer structure, given that we are now using it easy to use. who’s called upon to conduct a sentenc- as an electronic tool. Q: We keep hearing that perhaps the ing task. It contains necessary legisla- Q: On a day-to-day practical basis, judicial system is a bit clogged up tive provisions; it contains a substantial how would a magistrate or a judge and there’s a bit of a backlog. To what amount of case law by way of hyperlinks. make use of this facility? extent might this speed up proceed- It really is a core tool. LH: In the Magistrates’ Court there ings in terms of getting cases through Q: Now you’ve been involved in this would probably be two ways in which we the system? development from day one, what were would do that. One would be from the LH: I think any time that a judicial offi cer the sort of parameters you started Bench. Magistrates have access to the doesn’t need to leave the Bench is a time with, because it’s impossible to put Sentencing Manual directly from the that is utilised in Court, that obviously everything on here. How did you work computer terminal, which is located on has an impact, but I think there’s a more out how you were going to do it and the Bench. If, for example, I needed to subtle way that also has an impact and manage it? check a maximum penalty provision or a that is through the profession. Where the LH: I was very lucky to be involved in piece of legislation, I could certainly do profession are well informed and making the editorial committee right from the that from the Bench. I would also use it submissions, which are well informed, start. We were indeed very fortunate to in Chambers in terms of a research tool, that increases effi ciency in itself. So, have Patrick Tehan as our editor and so in relation to matters where there access by the profession to this material the research staff led by Chris Michell, may be a more complicated issue, which will also have an impact in that regard. who were extraordinarily dedicated. The I needed to research, I would use it in my Q: Now I gather it’s going to be avail- role of the editorial committee was very chambers. able to the rest of the legal profession much at the start as a sounding board, I Q: So what would you have had to do and to the community. What can you guess, in terms of what the parameters before this? tell us about that? might be. As you may be aware, there has LH: Well, that involved leaving the LH: I think this is a very exciting devel- been in Victoria, for a large number of Bench on all occasions and going to the opment. As I alluded to before, I think years, a very good sentencing work that library, hoping the Librarian was there, that the fact that the profession, as I His Honour Judge Mullaly compiled some if not conducting the task personally understand it, will have access to this years ago. It was not in an electronic for- more often than not in the Magistrates’ material on a no-cost basis means that mat and had not been updated for some Court. That obviously isn’t very effi cient it will be accessed by a large number of time, so I guess the fi rst task of the edi- in terms of the use of judicial offi cers’ practitioners. That being the case, it has
the sentencing process and in modernis- judges of the Court of Appeal and judges On the other hand, there are issues of ing Victorian courts. of the County Court — the fi rst time in law which require Court of Appeal inter- As still a very new arrival, I can say that its history that the Court of Appeal has vention from time to time. The reason we it is a great privilege to join a justice sys- crossed Lonsdale Street. We’ve done it are having these meetings is to enable the tem under a reforming Attorney-General twice now, with no accidents reported! judges of the County Court to say to the and with heads of jurisdiction of the Everybody agrees that one retrial is Court of Appeal, “You need to explain calibre of Chief Justice Marilyn Warren, one too many, because of the cost and the more clearly what it is you think we Chief Judge Michael Rozenes and Chief anguish and the diversion of resources. If should do, and why you think we should Magistrate Ian Gray. They are modern by these meetings we can avoid a single do it.” That in turn gives us an opportu- judges and modern administrators, who retrial, they will have been well worth hav- nity to explain the minimum requirements believe in utilising modern aids and mod- ing. In addition, the meetings have enabled which must be met, in directing juries and ern information; who believe in rolling up me to convey to the County Court judges in passing sentence, while emphasising their sleeves and talking about how we that we are equal participants in the crimi- that there is no need to write a long essay. can do things better; who are open to good nal justice system. There is no hierarchy, After two very productive discussions, the suggestions and constructive criticism. I other than the formal one. What County Chief Judge and I are resolved to continue am proud to join such a high quality group Court judges do every day, conducting tri- them on a regular basis. of leaders. als and sentencing — that’s the hard part. In addition to this Sentencing Manual, Just last week we had the second of In the Court of Appeal we do not have to the Judicial College has produced the two round table discussions between deal with juries or witnesses. State Coroner’s Practice Manual, a
36 Chief Justice Warren chairs the College Board, which has set and will continue to set an ambitious agenda for itself. For ncerning the use of the example, there are cultural awareness programs, which so far have covered Aboriginal, Vietnamese and Horn of Africa communities. In these programs, judges, magistrates and VCAT members mix with the potential, fi rstly, to better inform which led to the manual being launched diverse communities to learn how the law those practitioners, which allows them today. is viewed from those cultural viewpoints. to better assist the Court. In terms of Q: And is it a stand-alone facility or The perspective from the Bench is only the community, I think a community is it part of a broader intranet facility one perspective, and often it’s a very lim- which is well informed is better able to for the judiciary? ited one. understand the sentencing process, and LH: No, from the judiciary’s point of Finally, I want to mention the rewrite I think it’s a very important feature of view, it will be available through our of the Charge Book. The Charge Book this material that indeed the public will JOIN portal. That’s a judicial information is literally a book of charges, contain- have access to it. network and it will be one of the tools, ing written versions of directions which Q: There’s a lot of people, perhaps contained on that portal. are appropriate for trial judges to give those of us who are getting older who Q: So, how user-friendly is it in terms juries on particular offences or particular are a bit IT resistant — what sort of of accessing it for the judiciary? issues — for example, consciousness of take up has there been? LH: It’s very easy to access. It’s accessed guilt. As judges will tell you, they variously LH: I think there will be a very large take by judicial offi cers through the JOIN por- rely on a mixture of the oral tradition, up. As I’ve said, it’s a very easy to use tal, which is a judicial offi cers’ informa- and hearsay, and Judge Kelly’s book tool. When I came to the Bench some tion network. It’s a case of simply going (the current Charge Book), and what seven years ago, my computer skills to the JOIN portal and simply clicking Justice Vincent wrote when he was a trial were minimal, so I don’t come from an on the icon for the Sentencing Manual, judge. IT background, and I fi nd this a very thereafter it’s relatively self-explanatory To ensure consistency and to reduce easy tool to use. and the hyperlinks take you to the cases the risk of error, an up-to-date Charge Q: What can you tell us about the role where that’s necessary or appropriate. Book is essential. It is very exciting that the of the Judicial College in the devel- Q: One last question: how has it Attorney-General is funding the College opment of this electronic sentencing turned out compared with what you to completely rewrite the Charge Book. manual? imagined three or four years ago? We are fortunate to have Justice Vincent LH: The role of Judicial College was LH: It is a much more comprehensive chairing the Judicial Editorial Committee, absolutely pivotal. It’s a cross-jurisdic- work than I had initially imagined was which will review draft charges as they tional tool, as you’d be aware, and the possible within the timeframes. The are prepared. I am told that the commit- College was uniquely placed to enthuse, task initially looked daunting in terms of tee will meet in early December to review fund and coordinate the necessary writing a manual that covers all aspects the fi rst few drafts. If everyone is working resources, both in terms of manpower of sentencing in this State, yet somehow from the same Charge Book, and if judges and funding. The College managed to our editor and our research staff have understand that the draft charge must be procure the services of Patrick Tehan managed to do that and it’s something adapted to the circumstances of the case, and a very dedicated team of research- I think all Victorians should be very there should be fewer errors, and fewer ers, and it was really the College’s drive proud of. retrials. I pay tribute to the Judicial College for getting this new project off the ground. I Magistrates’ Bench Book and induction is working with the various courts to assist look forward very much to the product of manuals for magistrates and VCAT mem- us in meeting the ever-increasing demands that work as it unfolds over the next 12 bers. It is very important that the College on our time and on our energies. months.
37 News and Views Celebratory Dinner: The Honourable Mary Gaudron QC Or “things could be better – but they could also be worse”
Kydia Kinda
Thursday 15 September 2005 will go down in my memory as a bright and intellectually stimulating evening with the reminder that although things could be better they could be far worse.
NE of the delightful things about The Honourable Mary Gaudron OQC is her openness and collegial- ity. She is down to earth and the same person to all she comes in contact with, which is both encouraging and refreshing, especially for less experienced practition- ers, like me. As well as taking pride in her Standing: Lucy Cordone, Corporate achievements we are inspired by her to Court of Australia, their Honours Justice Council for St Vincents (left) and not sit back and relax. Betty Kings and Justice Elizabeth barrister Lydia Kinda. Seated: Justice Kim Knights, Convenor of the Women Hollingworth to the Supreme Court of Mary Gaudron with the Solicitor- Barristers’ Association, reminded us Victoria, Judge Felicity Hampel and Judge General for Victoria, Pamela Tate S.C. that we were gathered to welcome three Jeannette Morrish to the County Court intakes of Bar Readers (September 2004, of Victoria, Federal Magistrate Victoria March 2005 and September 2005) and also Bennet to the Federal Magistrates’ Court, ing a family, in response to which some of reminded us that the WBA aims to benefi t Coroners Audrey Jamieson and Dr Jane us felt totally inadequate or else wondered “all” women. Kim extended felicitations Hendtlass to the Coroner’s Court of why we thought our lives were busy. As to Judge Felicity Hampel of the County Victoria, Jennifer Davies S.C. and Suzanne a retired Justice of the High Court, Mary Court and Fiona McLeod S.C. for being Pullen S.C. as Senior Counsel. This formi- Gaudron QC continues to serve people the most recent winners of the Victorian dable lineup of female appointments was and the law at the International Labour Women Lawyers Achievement Awards. toasted. Organization (“ILO”) in Geneva. The focus This dinner was also celebrating the In her introduction of Mary Gaudron of her speech was in relation to her work following appointments: the Honourable QC, Kim gave us a potted history of her with this organisation in Belarus, a former Chief Justice Diana Bryant of the Family Honour’s milestones in the law whilst rais- Soviet Socialist Republic.
38 As with other speeches she has made since her retirement from the High Court, her Honour not only told a story, but like the good lawyer that she is, applied the story to make us think and wake us up from too easily accepted apathy. Her focus on how the law ought to improve lives and not just regulate them is a battle cry and a warning to guard what privileges we have. We should appreciate our rights, not take them for granted. In her inimitably humble and humor- ous way, she told of how she (as both a constitutional and industrial lawyer) had been selected by the ILO to accompany a Finn and Croat to investigate complaints that trade unionists in the Belarus were being regularly jailed. A quick review of the Belarus Constitution indicated that any international treaties ratifi ed by the newly independent republic were immedi- ately incorporated into that country’s laws Kate McMillan S.C., Chairman of the Victorian Bar Council; The Honourable. which rendered the incarceration of the Mary Gaudron QC, Guest Speaker and Kim Knights, Convenor of the Women trade unionists anomalous. Barristers Association. Her Honour queried why the trade unionists who were being prosecuted under the Administration of Justice Act had failed to appeal their administrative detention. This draconian piece of legisla- tion was likened by her Honour to some NSW legislation of similar ilk repealed in 1968. She was told by women lawyers that such sentences could be appealed, in fact Legal Aid was available to assist. So why didn’t they appeal? Her Honour was told that they could “only” appeal once the sentence had been served. Something akin to our Special Leave application could be made directly to the Belarus Constitutional Court but regrettably there was no Belarus equiva- lent of Section 75(5) of our Australian Constitution. No right to a Writ of Mandamus or Certiorari. A black hole situ- ation for someone aggrieved by an admin- istrator’s decision seeking judicial review Family Court Chief Justice The Honourable Diana Bryant with Anne Hudd. or even natural justice! There were only two ways an aggrieved In Belarus it seemed as though only “women” lawyers remained as private person could appeal: if the Chief Justice of they were about to get worse. This Act practitioners able to represent “all” the the Constitutional Court in Belarus were was about to be used to strike off the dissidents. Her Honour again reminded to refer it, or if the Prosecutor General President of the Belarus Women Lawyers us that maintenance of the Rule of Law brought the action. Now I can see the lat- Association and the Association itself was requires vigilance. ter happening if the trade unionists were to be disbanded! How come? Her Honour stated that there was no being denied access to the local golf club, Following the privatisation of the point in appointing women just to have but would the Prosecutor General be keen legal profession, lawyers started to make women — she disagreed with Justice to thwart a government action? Suddenly lots of money to the extent that in 1991 McHugh that we need women appointed all those cases of people appealing direct there was a Presidential decree that if because otherwise the public would to the High Court of Australia seemed you were making too much money you lose confi dence in our justice system. less petty. Although, as Solicitor-General either disgorged your ill-gotten gains Advocates too had a responsibility to open Pamela Tate said recently, a Charter or went back to employment with the judges’ eyes. Judges should come from as of Rights as enshrined in the Canadian Ministry of Justice. Most men returned to widely differing backgrounds as possible Constitution would be an advantage the Ministry of Justice as public servants and people of different sexes should be — things could be worse! restricted in their activities. So by now appointed. In one of her many discursions,
39 Portia’s Breakfast 2006
Judge Susan Cohen, Fiona McLeod S.C., The Hon .Judith Cohen and The Hon.Mary Gaudron QC.
Mary pointed out that in the past the noun nine Judges on the Canadian Supreme was gender and people had sex, now it Court are women, including the Chief was the other way around. Justice. There are even women on the No, we don’t have equal representa- Constitutional Court of Belarus. tion anywhere you look — but things Since then we have achieved equal have improved from 100 years ago when pay for women, before only female women fi rst attained the right to prac- slaughterers had equal pay. Maternity tice law. Her Honour said she preferred leave has been introduced and the Anti- to date her recollection from when Neil Discrimination Legislation. Under the Rule Armstrong walked on the moon. That was of Law there are rules — and her Honour when things started to change. Australia estimated that at least 40 per cent of the was very much involved in the moon land- Law applied consists of discretions and ing. She remembered a friend living in the value judgments. Our only Constitutional country acquired a very large transistor avenue for grievances against State action radio tuned to regional ABC radio so or inaction is s.75. This means that review he could listen to the report about Neil of discretionary decisions is very tightly Armstrong stepping on the moon. She and closely controlled. Grounds of appeal shared how at the critical moment the are very few. Under the Administrative radio station reverted to broadcasting rac- Decisions Judicial Review Act 1977 ing at Menangle. He is now a professional (Cth) (“ADJR”) the grounds are wider. punter. Her Honour stated that our only guar- Back then women couldn’t drink in antee of equality of treatment in respect public bars. There was only one woman of bureaucratic decision making is the Portia’s Breakfast is on again! judge — Roma Mitchell appointed in ADJR. Come and celebrate the opening of 1965. There were 13 women at the Bar Following Her Honour’s speech, Kim the new legal year on Tuesday 31 in NSW, a handful in Victoria and the thanked her for her informative, enter- January 2006 at this secular event, only woman QC, Joan Rosanove, wasn’t taining and far-ranging speech, as well as hosted by the Victoria Law Foundation practising — there wasn’t one practising thanking the dinner organizers for their in conjunction with 10 other agencies. woman silk. We now have women on every huge efforts. Held from 8–10 am in Hardware Lane Supreme Court except Tasmania. There Postscript: How quickly the world (corner of Little Bourke Street), the are very considerable number of judges changes, despite predictions by jour- Breakfast is a festive, relaxed way in Queensland and here in Victoria, and nalists reporting her Honour’s speech to welcome in the year, and a great we now have a second female Chairman that it was unlikely another woman opportunity for informal networking of the Victorian Bar Council, a female would be appointed to the High Court across all sections of the legal com- Solicitor-General, and a considerable — the Attorney-General Phillip Ruddock munity. Optional gold coin donation to number of women silks. But the prob- announced the appointment of Justice Women's Legal Service Victoria. lem of no woman on the High Court of Susan Crennan QC of the Federal Court to Australia remains. the High Court from 1 November 2005. RSVP to [email protected] There are now women in the House of So although things could be worse, that with “Portia” in the subject line, or call Lords in the United Kingdom, two women just got better — and no doubt they are (03)9604 8100. on the US Supreme Court and four out of still racing at Menangle.
40 News and Views Readers’ Signing of Bar Roll
Back Row: Frances Dalziel, Edward Moon, Jeremy Slattery, John Stevens, Laurence Liddell, James Rangelov, Dugald McWilliams, Travis Mitchell, Justin Brereton, Terence Guthridge, Anthony Beck-Godoy, Mitchell McKenzie, Rolf Sorensen, Wayne Henwood and Joanne Lardner. Centre Row: Barbara Walsh, David Turner, Colin King, Charmaine Lye, Marita Wall, Mark McKenney, Vicky Priskich, Leonie Englefi eld, Jason Romney, Benjamin Fitzmaurice, Michael Borsky, Rory McIvor, James Greentree, John Snaden, Russell Rigby, Meghan O’Sullivan, Emily Latif, Lynne Featonby and Deborah Burns. Seated Row: Bruce Anderson, Jagdeep Jassar, Aaron Mane, Kenneth Imako, Samuel Vavala, Meli Muga, Angela Ellis, Mayada Dib and Ingrid Braun. Front Row: Arthur Bolkas, Patrick Bourke, Jonathon Redwood, Justine Raczkowski, Cam Truong, Peter O’Connor, Jeremy Sear, Kieren Naish and Tyson Wodak. Readers Course 25 Years Old
NDER the heading “Readers In welcoming guests to the Readers others, their involvement in the Course Course and Masters and Readers Course Dinner on Thursday, 10 over its 25 years. UDinner”, the Autumn 1980 edition November 2005, to mark the conclusion The honoured guest speaker at the of the Bar News recorded the following of the September 2005 Readers Course, Dinner was Justice Stephen Charles, news: the Chairman of the Readers Course a member of the Court of Appeal. His Committee. Paul Santamaria S.C., said Honour delivered a very amusing speech The Readers Course for new members of that the Bar was entitled to refl ect with on his recollections of working with the Bar is now being conducted. Those some pride on the institution of the Queens Counsel, focusing upon appear- readers attending signed the Bar Roll on Readers Course and the important place ances with the late John Starke QC, the Thursday, the 13th March, 1980, at the it has occupied in the development of late Keith Aickin QC and Ninian Stephen Inaugural Masters and Readers Dinner held advocates in the State of Victoria. He QC, now Sir Ninian. Charles JA left the on the 13th Floor of Owen Dixon Cham- mentioned the work of barristers such Dinner a little earlier than most so that bers. Sir Gregory Gowans Q.C., was the as David Ross, Stephen Charles, George he could catch a plane to Vietnam later chief guest of the evening which appeared Hampel and others who were involved that evening. His Honour attended the to be enjoyed by all and is felt to be a most in the establishment and conduct of the graduation of his son, Thanh, on Saturday worthy innovation. Readers Course in its very early years and in Vietnam. who had maintained, together with many Other honoured guests at the Dinner
41 included Justice Peter Buchanan and McMillan S.C., and some other current presentation by Samuel and Aaron of Justice Geoffrey Eames, both of the Court members of the Bar Council. the gift of a magnifi cent wooden carving of Appeal; Justice David Harper, Justice Some 45 new members of the Bar from the Solomon Islands to the Victorian John Coldrey, Justice Kathy Williams, signed the Bar Roll earlier in the evening Bar, in recognition of their attendance Justice Stuart Morris, and Justice Betty in the presence of the two readers from at the September 2005 Readers Course King of the Supreme Court of Victoria; Papua New Guinea and two readers from and the bond which exists between the Justice Peter Gray of the Federal Court; the Solomon Islands, who also success- Victorian Bar and the legal fraternity of His Honour, the Chief Judge of the County fully completed the Course and signed the Solomon Islands. Court, Michael Rozenes, Her Honour the Bar Overseas Readers Register. Since 1987, 95 readers from the Judge Elizabeth Curtain and Her Honour Kenneth Imako read with Declan South Pacifi c region have completed the Judge Felicity Hampel; State Magistrate Manly, and Meli Muga read with Ronald Course. Lesley Fleming (all three of whom are Gipp. Kenneth and Meli visited from Each of the overseas readers expressed former members of the Readers Course Papua New Guinea. Samuel Balea read their gratitude to Barbara Walsh and Committee); the Honourable Professor with Martin Grinberg, and Aaron Mane Deborah Burns for their assistance and George Hampel; Mr Paul Coghlan QC, read with Peter Rose S.C. Samuel and kindness throughout the Course. the Director of Public Prosecutions; Aaron visited from the Solomon Islands. the Chairman of the Bar Council, Kate A highlight of the evening was the
Readers’ Dinner in The Essoign
Guest Speaker Justice Stephen Justice Eames; Justice Coldrey; readers from the Solomon Islands, Samuel Charles. B.Vavala and Aaron Mane; and Aaron’s mentor Peter Rose S.C.
Justice Morriss, President of VCAT, Readers from Papua New Guinea, Meli Neil Clelland S.C.; Deborah Burns, and Chief Judge Rozenes. Muga,left, and Kenneth Imako on the Victorian Bar Legal Education right, with Declan Manly. Offi cer; and Tony Burns.
42 News and Views Hurricane Katrina: Destruction in New Orleans Why was the brunt of this storm borne by poor people of colour in New Orleans?
Richard Bourke
After the destruction wrought by Hurricane the Justice Center. Victorian barrister Richard Katrina in the southern states of the USA in Bourke, now living in New Orleans and working September 2005, ReprieveAustralia organised an as an attorney at the Justice Center, spoke with event to raise funds for the Justice Center in New eloquence and power on the reasons for the Orleans, Louisiana. The Justice Center is a non- humanitarian disaster in New Orleans. He was profi t legal offi ce providing legal and humanitarian introduced by Chief Judge Rozenes. Justice support services to indigent defendants on Maxwell spoke in reply. I record my personal death row in Louisiana. Reprieve has sent many thanks to both judges, to Nick at The Essoign, and Australian volunteers to work in this offi ce over to the Victorian Bar for its contribution. the years, including four members of the Victorian I thank all members of the Bar who attended and Bar. The evening was supported by PILCH, the who, with all who attended, contributed to the Criminal Bar Association and the Victorian Bar. $6,500 raised for the Justice Center. The following It was organised with less than seven days notice. is an edited version of the address delivered by On 13 September 2005, over 150 people from Richard Bourke on 13 September. the Bar and the wider community attended The Nicholas Harrington Essoign. Over $6500 was raised in donations for President, ReprieveAustralia
S a death penalty lawyer living in New Orleans, one of the things I Ahave been trying to grapple with over the last couple of weeks, since Hurricane Katrina hit, is to understand this extraordinary coincidence that both the death penalty and hurricanes appear to target poor black people in the deep South. I am no meteorologist, but I’m will- ing to have a go at explaining this. It’s not anything to do with the weather. Although Hurricane Katrina hit a cou- ple of weeks ago, the story starts at least a year ago, and probably more. A year ago I was living in New Orleans with Christine Lehmann, now my wife, and it was hurri- cane season, as it tends to be at this time of year. The alert went out on Hurricane Ivan, a huge storm brewing in the Gulf of Mexico that was pointed at New Orleans. Every year, New Orleans is at risk of hur- ricanes. Commonly the front page of the local newspaper will show a diagram of Death Sentence Lawyer from New Orleans, Richard Bourke, speaks at The the deep “bowl” in which New Orleans Essoign.
43 Orleans. There was an enormous scandal at the time, because so many white folk “in their four wheel drives” had to sit in the traffi c jam on the freeway getting out of town. But there was not a whisper about the fact that maybe 200,000 African Americans couldn’t get out at all. So the level of devastation following Hurricane Katrina was absolutely no sur- prise. Images of almost exclusively African American residents of New Orleans, with devastated homes, on their roofs, and on makeshift rafts — deserted in this city. Keep this in mind when thinking about the aftermath and the “blame game”, as President Bush has called it. It was a known factor. His Honour Chief Judge Rozenes. His Honour Justice Chris Maxwell A year earlier, there had been a dry run President of the Court of Appeal. of trying to evacuate New Orleans. It had become crystal clear to everyone that, sits. The text then describes what will I drove through Pensacola and it was like under the existing evacuation plan, about happen when the levy system breaks, and the place had been bombed — it looked 200,000 people weren’t going to get out. which neighbourhoods will be inundated. like Dresden. But nothing was done about that — noth- This is perhaps not quite as President There was an enormous scandal after ing at all! Bush has portrayed the risk. The President Hurricane Ivan. This incredible storm And that’s what you need to think is quoted as saying recently: “Who would had descended on New Orleans, and an about when you think about: How did this have believed that the levies could break? evacuation had been announced. But happen? Why did this happen? Why was Who would have believed that this could there was a huge problem — people could the brunt of this storm borne by poor peo- happen?” not evacuate. There were traffi c jams on ple of colour in New Orleans? It’s because I’m going to look like a fool saying the highways; there was an inquiry; there the civil institutions of the city, the gov- this, but New Orleans at hurricane time were press conferences; there were state- ernments of the city and the state, were is actually a pretty enjoyable place to be. ments being made about what we were aware that those people were in mortal All the tourists leave, and it gets a little going to do about this evacuation. The danger, and yet they chose not to act. quieter. All of the white middle-class folk government came up with a new contra- They simply chose not to act. Those lives from Metaire, Kenner, and all the suburbs fl ow traffi c system where drivers were did not have suffi cient political capital to of Jefferson Parish, fl ee at the drop of a permitted to drive on the wrong side of make them worth saving. And that’s the hat — and the town actually gets to be a the road, so that all lanes of every highway truth that runs through hurricanes in the lot more fun. Most of the members of my were heading out. It set up a process of deep South, criminal justice in the deep offi ce tend to hang around. We stay and advance warnings. South, and particularly the death penalty ride out any threatened hurricane. Even When Hurricane Katrina threatened in the deep South. though the authorities call a curfew each Louisiana, there was a call for mandatory Before Katrina, my approach to hurri- time, a bunch of bars stay open. It’s like evacuation — “evacuation by car”. This canes in New Orleans had been, perhaps, being there in the 1920s, and going for a actually worked very well, and that’s how I a little frivolous. I’ll be a little more cau- drink at a speakeasy. got out. Evacuation was mandatory. It was tious in future and get out a little earlier. This is what we did during Hurricane no longer going to be fun to hang around We decided to get out when the manda- Ivan. You go and do your shopping, and in the city waiting for a near miss. We got tory evacuation was called. We had a car. you buy a couple of cases of water, a cou- in the car and we left. It took us 16 hours We didn’t panic. We went to the offi ce and ple of cases of beer, and a couple of pack- in the traffi c to get out, but we got out. We made sure the offi ce was boarded up. We ets of corn chips — hurricane supplies. never doubted we were going to get out. got the back up tapes for the servers, so You wait for the power to go out — which We were in a car; we were on the highway; we had the electronic fi les. We packed two it does in the lightest breeze, because the and we drove away. days clothing, because we really thought New Orleans’ energy infrastructure is so But the other truth about Hurricane we’d be back in a couple of days — fol- bad. Then you go and fi nd one of the bars Ivan was that it was discovered that there lowing what we thought was going to be that’s open. During Hurricane Katrina, were 170,000 to 200,000 New Orleans another near miss. there was a colourful local joint called residents who just could not get out. It But it was at the offi ce that we started “The John” where the seats are shaped was nothing to do with the traffi c. These to get an inkling of what was really sig- like toilet seats. We’d go to any bar in a people simply didn’t have the means to get nifi cant about the evacuation. We remem- storm! out. There was no transport available for bered the 200,000 people that weren’t We did this with Hurricane Ivan, and them, and they didn’t have it themselves. going to be able to get out. it missed by two states. Ivan didn’t hit Moreover, they had nowhere to go, even if There were a couple of Reprieve vol- Louisiana; it didn’t hit Mississippi; it didn’t they had tried to fl ee. unteers working at the offi ce who were hit Alabama. But it wiped out part of the Who were these people? The poor going to get out in the investigators’ Florida Pan-handle, which was disastrous. African American population of New car. Richard Davies, this rather curious
44 English volunteer, had been sent to pick ceration rate in Louisiana is something to craters on the moon, and it looks like up the car to help the other volunteers get behold. The Orleans parish prison holds it’s already been bombed. It’s built on a away. Richard is a lovely guy, but he can’t 7000 prisoners — in a city of half a million swamp, and the roads are constantly sub- drive. He was in a car park, just him and people. That is more prisoners — more siding and rising. Everywhere you can see this car. He couldn’t get the car started, than double the number of prisoners in potholes that no one is working on. Well, because he didn’t understand that you fact — than the whole Victorian prison every now and again you come across a have to engage the clutch in American system. This is a community that crimi- crew of people working on the potholes cars to start them. nalises, and brutally incarcerates, its poor — and they’d be leaning on their shovels, While he was explaining to me that the and not working too hard, as is the wont car was broken, a gentleman called “CJ” of a road worker, it seems, worldwide. But came up — and he had had the foresight I stopped complaining about those guys a to have packed up all his belongings. In his There was an enormous couple of years ago, when the mayor of case that only amounted to a small pack- New Orleans announced that, in order age, because he was a homeless guy. This scandal at the time, to create a war on the 50,000 potholes in was serious and he needed to get out. CJ, because so many white New Orleans, he was going to double the an African American, with no way out, had folk “in their four wheel number of people working on them – from just been up to the greyhound station and drives” had to sit in the two to four. I realised it was the same two they told him no buses were leaving. He guys that I’d been seeing. They had 50,000 was terrifi ed. Here I was thinking “We’ve traffi c jam on the freeway potholes on their schedule. gotta get Richard organised with this car, getting out of town. But It’s a simple enough example, but that’s and fi nd someone that can drive. This is there was not a whisper the level of social infrastructure we are really annoying, and I’m really busy.” But talking about in New Orleans, and the then to meet someone who actually didn’t about the fact that maybe level of dysfunction. City Hall existed to have choices, and who was absolutely 200,000 African Americans assist the casinos and the Port Authority terrifi ed, was a real reminder that this couldn’t get out at all. to manage the money that runs through hurricane wasn’t affecting everyone in New Orleans. There was no sense in which the same way. We sent CJ up to rescue City Hall, or the Department of Education, our volunteers and drive them out of the and its marginalised. We saw that in the made a priority of some of the basic serv- city. It was serendipity, of course. Richard criminalisation of looters. I’ll say a little bit ices of health and education, which those couldn’t drive and CJ could. So they drove more about that later. civil institutions should stand for. off together to Alexandria, Virginia. I don’t wish to be entirely unfair to New We saw outbreaks of lawlessness fol- That was when I fi rst felt that this was Orleans because, apart from the murder lowing Katrina, so let’s talk about the civil really very serious. As we sat in the traffi c rate, which is a negative statistic, it has institution of law enforcement and order. for hours listening to the radio, thinking one positive statistic. Charity Hospital in You may have heard about the courts of more and more about what we had learnt New Orleans is widely regarded as having the adjoining Jefferson Parish, which are following Hurricane Ivan, and thinking the best gunshot trauma unit in the USA the outlying suburbs of New Orleans. about the number of people who couldn’t — so it’s not all bad. Suffi ce to say that when I go to Jefferson get out, the sense of impending disaster Let’s get back to the “blame game”. My Parish, the people tell me they can’t just grew and grew. natural desire is to blame George Bush for believe I live in Orleans because of the And so what happened? How did this everything. However, the fact is that this corruption there. Compared to Jefferson happen to all of these people? The short was a failure that was a long time in the Parish, that obviously speaks volumes. answer is this: nothing happened. That is, making. It was a failure fi rst and foremost The courthouse at Orleans Parish is a nothing new happened at all. The same of Louisiana and of New Orleans and of shambles — it’s a wreck — there is no thing that happens to poor black people in its civil institutions — and their failure coordination. Judges run their individual the South just happened with a hurricane to deal with the poor and disenfranchised fi efdoms. They come into work when they — as it happens with everything else in people of colour in that state, and in New want to, and they leave when they want New Orleans. New Orleans has the worst Orleans in particular. to. health care in the country — the worst or In a speech where I am bracketed Although this may not sound like a second worst every year. That’s unfair. It by the Chief Judge and the President of rude shock, it’s at a level beyond anything has the worst or second-worst education the Court of Appeal, representing a civil I had ever heard of. The criminal justice system in the country every year. It has institution so vital to the running of our system there is arbitrary; it is brutal; and the highest or second-highest murder community here, it’s worth thinking about it has an impact directly upon poor black rate in the country every year. It has the those civil institutions in New Orleans. As people. You walk into the courthouses of highest incarceration rate in the country. a resident of New Orleans, I can say that Orleans Parish, and they bring in rows, Given America’s penchant for locking peo- the Mayor of New Orleans and the city of and rows, and rows of African American ple up, this means probably the highest New Orleans were, until two weeks ago, men, shackled at the waist, shackled at incarceration rate of any government in a laughing stock. No one would, or could, the legs, seeing their public defender the world. rely on them for anything. If they had lawyers, who walk up to them and say: Let me put this in context. There were managed to provide even the most basic “Is your name Michael? Alright, you either only 30 less murders in New Orleans government services, it would have been a plead now, or they’re going to give you life last year than there were in the whole bonus to us as residents. without parole.” They get 30 seconds to of Australia — and New Orleans is a city I don’t know how many of you have think about it, and to trust the stranger of only half a million people. The incar- been to New Orleans. The roads are like who has just greeted them like that.
45 These poor people get processed other brutal crimes of violence. There Louisiana every day — they will blame the through this system with enormous brutal- were also some fairly ineffectual property victim, and we will see that same rhetoric ity. These are people arrested by the New crimes. I’m not sure what someone at the repeated. That’s why I’ve gone to some Orleans Police Department. It is not an height of a fl ooding thought they were effort to underline it. exaggeration to say that the New Orleans going to do, stealing a wall-size television Thinking about Louisiana’s criminal police department is widely regarded by — maybe hollow it out and turn it into a justice system, you would all be familiar the citizens of Orleans parish as inept, canoe? with the way in which the death penalty lazy, corrupt and brutal. The acquittal There was some shocking offending, has a much more severe and dispropor- rate for contested trials in Orleans par- but this was in a city that already had the tionate impact upon people of colour and ish is more than three times the rate of highest murder rate in the country, and 27 the poor. the adjoining parish, simply because the per cent of its population living in poverty, It is perhaps summed up best in residents, the jury members, all know before they lost everything in Katrina. one example of the jurisprudence of that the New Orleans Police Department Louisiana. In fi ghting for a client’s life in are that corrupt. They cannot be trusted. Louisiana, in front of a jury, in the penalty And this was the civil institution that was phase — where you are trying to persuade expected to bring order; to have the trust At the Justice Center, the jury not to kill your client — where of its citizenry, assisting in an evacuation you’re trying imbue your client with the and maintaining order. there is a link between the humanity needed to have a group of jurors It is no coincidence that when you death penalty work we do decide to spare his life — a jurisprudence have civil institutions that operate arbi- and the Innocence Project has evolved about what the prosecutor trarily and brutally against the poor and work for those who have is allowed to say about your client, and the disenfranchised in the community whether the prosecutor, in calling for those institutions are not going to be able been locked up for life your client to be killed, is allowed to to serve those members of the community without a fair trial, and call the human being you have as a cli- when they are in need. who are in fact capable ent, an “animal”. Of course, in Louisiana, I have talked about race and poverty the answer is yes. The jurisprudence many times. So what do Americans think of being exonerated by of Louisiana holds that it is permissible about race and poverty and Hurricane DNA and the like. Our for the prosecutor, in an effort to per- Katrina? A Gallup poll, released today in work is work for the poor suade a jury to kill your client, to call your the US, asked people whether they think and, for the most part, client, that human being, an animal — but that the response was so slow because only if the evidence supports that attribu- the victims were black. Twelve per cent for the African American tion. of white people said no. Sixty per cent community of Louisiana This is the system that the poor African of black people said yes. Same thing in and New Orleans. American community of New Orleans has terms of poverty. Sixty-three per cent of lived under before Katrina, during Katrina African Americans surveyed said that the and after Katrina. As an after-Katrina response was so slow because the victims example, they had to evacuate Orleans were poor. Only 21 per cent of the white I might say something about the cen- parish prison — 7000 prisoners. We’ve people surveyed had that insight. sus statistic for poverty. The “line” is a heard about how shambolic that evacua- This is the two Americas that we hear four-member household earning less than tion was. Prisoners who had no choice but so much about. Working as a death pen- $17,000 a year. Twenty-seven per cent of to evacuate, after being stranded in water alty lawyer in the South, it’s what we work the population are said to be living below up to their chests, water up to their necks, with. One of those Americas is our client, this line — more than a quarter of the having to break out in order to get out and their families and their communities; population. — people being drowned like rats in cages the other America is our enemy. Those people, without the civil institu- in the prison. We just don’t know how bad In terms of the criminal justice system, tions of a government that cared about it was yet, but that’s what we are hearing I should say something about the looting. its citizens, were largely simply trying to from our clients who were there. You’ll all have seen by now the pictures survive. I don’t mean to minimise the bru- They set up a new prison at the of African American evacuees, or people tal crime that occurred, and does occur Greyhound bus station. They did a press caught in the storm, with goods from every day in New Orleans. However, one release, and an article on their fi rst arrest stores, labelled as “looters”. You’ll all also needs to be very careful in listening to for the new prison. It was someone have seen whites, with the same sorts of what’s being said about the looters, and who drove up to the prison, an African goods, labelled as people who had “found” the criminality, and the way that impaired American man. He drove up to the new supplies, or who were “fi ghting for their the efforts to rescue people. I point that prison at the Greyhound bus station in lives”. Fifty per cent of the white popula- out because we’re going to hear that again a stolen car and tried to get a bus ticket tion in this survey said that most of those and again. out of town. This is after the mandatory who were doing the looting were crimi- But at some point the pendulum swung, evacuation, after the hurricane, after nals. Seventy-seven per cent of the black and it was realised that you could not the levies had broken, after violence and population said they were just people try- describe these people as criminals. And murder had broken out on the street, and ing to survive. yet I guarantee the pendulum will swing after the Mayor, the President and the Make no mistake, there was serious back. As the “blame game” gets moving, Governor had said “Get out! Do anything non-looting criminality going on. There what will happen is what happens to poor you can to get out”. were murders. There were rapes, and African American folk in New Orleans and So this man commandeered a vehicle
46 and drove to the Greyhound bus station. in fi ghting the racism in Jefferson Parish The paramedics knew that if they He asked to buy a ticket to get out of — the way in which it had an impact stayed outside the police headquarters, town, and they arrested him. That was on our clients, the way in which they something would happen to them. So, the their fi rst inmate in the new post-Katrina sought the death penalty against poor police came out and said “Alright, alright, criminal justice system in Louisiana. African Americans — was to demon- we’ve organised buses for you. Go to the So for those of you who were hoping strate this endemic racism by proving bridge over at Jefferson Parish, and on for dramatic change, do continue to hope that the authorities were keeping African that bridge you’re going to fi nd buses that as I do. But we are not seeing it yet. There Americans off juries. will take you to safety and higher ground.” are two last points I want to make. First, One of the other things that the gov- The paramedics said: “Hold on a minute. I’ve heard people talk about this incident ernment did in the late 80s, was to build You’re just trying to get rid of us.” The as having ripped back the veil on poverty a wall between Orleans parish, which is police assured them they weren’t. and injustice in Louisiana. This isn’t a situ- 67 per cent black, and Jefferson Parish, So the paramedics left the police head- ation in which the veil was ripped back. which is 73 per cent white. They built a quarters, and marched up to the Jefferson There never was any veil. Everyone has wall down the middle of a street in a mod- Parish bridge — to the supposed buses. known for a long time, but people have ern American city to keep out the black Instead of saviours with buses, they found chosen to ignore it. Hurricane Katrina has residents of Orleans Parish. The highway a line of sheriff’s deputies, who fi red bul- made it harder to ignore, but this was a patrol came and tore it down, and said lets over their heads and said: “You can’t problem of which people were well aware, “What are you doing? You can’t build a come into Jefferson Parish. We’re not but chose not to act. wall in the middle of the street!” going to have another Superdome here.” At the Justice Center, there is a link But that is the mentality. And for those The paramedics were forcibly dispersed between the death penalty work we do of you who think that maybe the analogy by sheriff’s deputies of Jefferson Parish. A and the Innocence Project work for those with the death penalty and the crimi- police helicopter lowered its propellers to who have been locked up for life without nal justice system is too strained — we blow the wind under them. a fair trial, and who are in fact capable of received an email from two paramedics So, coming back to the coincidence of being exonerated by DNA and the like. who were caught in the hurricane. They the targeting by both hurricanes and the Our work is work for the poor and, for had been at a convention of paramedics death penalty system — I hope the les- the most part, for the African American — largely black paramedics. They got son that we all take away from Hurricane community of Louisiana and New Orleans. kicked out of their hotel, and went en Katrina is that this is about the poor; this We’ve suffered a hit with this hurricane, masse to the police, and set up at Harrah’s is about racism; and this is about the but it’s not a hit that’s anything like the hit Casino, where the police had set up their breakdown of our civil institutions, when that the poor African American popula- base of operations. The police said: “You those institutions fail to value human life tion of New Orleans have suffered. can’t come here. It is every man for him- — all human life — of all of the citizens in This is a fundraiser. I hope that you self. Piss off!” our community. have all given consideration to making donations directly to the Red Cross and similar organisations. If on top of those donations to those who are most needy, you are able to make a donation to our organisation — to allow us to continue to try and help those who are the most mar- John Larkins ginalised in that community — we would be very fl attered, and very grateful. We will do our best to honour that donation furniture by working as hard as we can. But if any of you think that my attempt to draw a link between the social under- pinnings of the criminal justice system, individually crafted and the death penalty, and the response to Hurricane Katrina, has been a little Desks, tables (conference, dining, strange — a little too much — let me give you one last example, and then I’ll fi nish. coffee, side and hall). Jefferson Parish is a 26 per cent black Folder stands for briefs and other items parish sitting next to Orleans, which is 67 per cent black. Jefferson Parish elected in timber for chambers and home. David Duke, the Grand Wizard of the Klu Klux Klan, to Congress. Jefferson Parish excludes, systematically, black members Workshop: of the community from jury service. 2 Alfred Street, Jefferson Parish returns as many death North Fitzroy 3068 penalty verdicts as any other parish in the whole state of Louisiana. Phone/Fax: 9486 4341 The Justice Center does a lot of work Email: [email protected] there. One of the things we came across
47 News and Views/A Bit About Words Laconic
T is difficult to pin down the current, ing much in few words, after the manner judgments. In Australian Casualty Co received meaning of laconic. A statis- of the Spartans; as a laconic phrase”. Ltd v Federico Gibbs CJ said: Itically meaningless straw poll suggests The OED2 (1989) defi nes laconic as: that in Australia at present it means some- “Following the Laconian manner, esp. in The judgments, in so far as they dealt with thing like “laid back, relaxed”. I confess to speech and writing; brief, concise, senten- the question whether the injury was caused having thought that was its proper mean- tious. Of persons: Affecting a brief style of by accidental means, were short and a little ing, but I lack a classical education. speech.” delphic. In 1989, in Pacifi c Dunlop Ltd v Washington Irving used laconic in Hogan, Sheppard J described Crocodile the new sense, I think, when he wrote His Honour missed a chance to be dem- Dundee as being portrayed in the fi lm of in Alhambra (1828): “By the time the onstratively learned: he could have said the same name: laconic clock of the castle had struck two “… laconic and a little delphic”, but that we had fi nished our dinner…”. If laconic might have been trowelling it on a bit. … in a laconic, laid-back style and yet is used in its proper meaning, the sen- Brennan and Mason JJ (as they were [the feats of the character in the fi lm] are tence is diffi cult to defend. at the relevant times) also referred to all pervaded with a certain cockiness and On the other hand, Jack London used the delphic qualities of judgments or insolence. All these characteristics are said it correctly in Son of the Wolf (1900): documents, and Kirby J has done like- to be dear to the hearts of many Australians “‘Pack!’ was his laconic greeting to wise. In the Federal Court, delphic has and indeed to reveal the type of personality Zarinska as he passed her lodge and hur- been favoured by Finn, Hill, Drummond which Australians like to think they have, ried to harness his dogs.” and Dowsett JJ. And Gyles J got in an even if this involves a certain amount of And a fi ne example of laconic expres- elegant shot in Hart v DCT when he self-deception. sion is found in, The Young Immigrants, commented “… nor do I regard what I by Ring Lardner (1920): “‘Shut up’, he have held as inconsistent with the rather In the Wisdom Interviews on ABC explained.” delphic remarks of McHugh J in Spotless radio in December 2004, Bruce Petty Some of our judges reveal their classi- Services”. said: cal learning and literary accuracy in their Spartan, geographically related to use of the word, although it is not often laconic, is still understood largely in But it’s kind of a careless country I think, found in judgments. In Grahamstown its proper meaning: “Characteristic or it’s kind of a little bit indifferent. I mean we and Campvale Swamps Drainage Trust typical of Sparta, its inhabitants, or their call it laconic and we call it nice names like v Windeyer Isaacs J said: “Some diffi culty customs; esp. distinguished by simplicity, laconic and casual and relaxed, but actually may be occasioned by the laconic direc- frugality, courage, or brevity of speech.” I just don’t think we give a stuff about an tion of sub-s. 4.” (the text of sub-s.4 is (OED2). Few people these days would awful lot of issues, because we’ve never not given in the judgment, perhaps in the describe brevity of speech as spartan, had to. interests of brevity). but the balance of the defi nition accords In R v Sutton Wells J referred to a wit- with current usage. Sparta was originally The ABC website refers to another ness having: “a curt, laconic, manner of called Lacedæmon. Byron used the origi- person as having “… a laconic attitude of speech”. nal name when he wrote “The Lords of having lived through personal reconcilia- In the Federal Court, laconic is Lacedæmon were true soldiers, But ours tion twenty years before it started”. favoured by Ryan and Sundberg JJ, and are Sybarites.” Most people, I suspect, would hear the especially by Mansfi ed J who frequently Sparta was characterised by the aus- word used this way and understand with- notes that the reasons of the RRT are terity of its military leadership from the out censure. Strictly, however, the word is laconic (which they often are). 6th to the 2nd century BC. The ruling misused in those quotations. He might as well have said that the class of Sparta devoted itself to war and Laconic derives from Laconia, the Tribunal’s reasons were delphic, which diplomacy, and paid no heed to the arts, kingdom ruled by Menelaus, according is certainly true at times. Delphic also philosophy, and literature. This regret- to Homer. Its capital was Sparta. The derives from a Greek place name. Delphi table tendency has been emulated more Spartans were noted for their simplicity, was a town of ancient Greece on the slope recently in some places. frugality, courage, and brevity of speech. of Mount Parnassus. It was home to the Spartan is used only once in the High The Laconic manner of speech was eco- sanctuary of the oracle of Apollo. The ora- Court before 1975, and that single judicial nomical. cle generally spoke cryptically, a fashion marker is, appropriately, in a tax judg- Johnson (1755; he spelled it laconick) later emulated by writers of horoscopes, ment during Barwick’s time. Mason J used defi nes it as “short; brief; from Lacones, who cover uncertainty with ambiguity. it deftly in FCT v Faichney: the Spartans, who used few words”. Before 1975, no judgment of the High Webster (1828) does not defi ne Court used the word delphic but, now The Commissioner has submitted that laconic, but has an entry for laconical: that text is the start and end of meaning, expenditure by a taxpayer on light and “Short; brief; pithy; sententious; express- delphic has slipped into a few High Court heating is deductible only if the light and
48 News and Views
heating are provided for the benefi t of the taxpayer’s clients or customers, not if they are provided for the taxpayer’s sole benefi t. A concession is made for the case where the Verbatim climate is so cold and rigorous that heating is essential to enable work to be done. This is a Spartan view of s. 51 and in my opinion it is quite incorrect.
Not only has laconic shifted from its origins, one component of the OED2 Dogs v Bombers ous plastering defective work. You kept defi nition (“brief, concise, sententious”) records of the hours worked, the sheet has also shifted from its original mean- Coram: Master Evans was signed by Danvale’s foreman and then ing. Sententious is not now understood Testators Family Maintenance claim given to Leepat Pty Ltd. The standard as referring to brevity. It originally meant — directions hearing. of work for previous plaster was below “Of the nature of a ‘sentence’ or aphoristic Counsel explaining to the Master who the industry standard. Now is that summary saying.” But then drifted to “abounding benefi ciaries are under the will — one correct? in pointed maxims, aphoristic” and so benefi ciary is the Essendon Football Witness: No. by degrees to its recent meaning “affect- Club. edly or pompously formal”. Not at all McNab: I guess you might say it’s not laconic. looking good for the football club. Technical Horns The central characteristic of the laconic Voice from back of the Courtroom: and spartan styles is terseness. But terse Supreme Court of Victoria They don’t deserve it. has also shifted its meaning since it came Commercial and Equity Division Master: Who are the other legatees — are into English in the 17th century. OED2 they other football clubs? Melbourne gives its original (now obsolete) meaning McNab: No, the Lost Dogs Home and the 27 October 2005 (Ninth day of hearing) as “wiped, brushed; smoothed; clean-cut, like. Coram: Mr Justice Byrne sharp-cut; polished, burnished; neat, trim, Voice from the front of the Courtroom: Aquatec-Maxcon Pty Ltd v Barwon spruce”. It comes from the Latin tergere Is there a difference between the Lost Region Water Authority to wipe. From there it drifted to “polished, Dogs Home and the Essendon Football and refi ned, cultured”. club? Barwon Region Water Authority v Johnson’s 1st edition (1755) defi nes it Aquatec-maxcon Pty Ltd & Ors as “smooth; cleanly written; neat; elegant Mr E.N. Magee QC, with Mr P.H. Clarke without pompousness”. He illustrates this and Dr J.L. Beard, appeared on behalf of meaning with a quotation from Dryden: Summary Not Correct Barwon Region Water Authority. Mr J.R. Dixon, appeared on behalf of JJP To raw numbers and unfi nish’d verse, VCAT Geotechnical Engineering Pty Ltd. Sweet sound is added now to make it terse. Deputy President Aird presiding. Witnesses sworn. Mr Dixon: Mr Frank Hall, an engineer In Don Juan, Byron also used terse in Danvale Constructions Pty Ltd v from Fisher Stewart, has given evidence its original sense: Allscope Interiors Pty Ltd to this court that it was his responsibility within Fisher Stewart to check for con- I doubt if any now could make it worse Mr Squirrel: You are a plasterer by struction drawings. O’er his worst enemy when at his knees, trade with approximately 46 years expe- Mr Magee: Your Honour, I think that’s ’Tis so sententious, positive, and terse, rience. You were employed by Leepat very defi nitely what Mr Hall didn’t say, I And decorates the book of Common for approximately 20 years. You worked think Mr Hall said he had to review the Prayer, on the Princes Views site for Leepat in drawings. As doth a rainbow the just clearing air. March/April 2002 performing rectifi cation His Honour: I think they have been work on existing plasterwork. You worked careful about the terminology they used, From there terse has moved to its cur- on the front townhouse unit fi xing plas- whether Mr Hall slipped from the termi- rent meaning “freed from verbal redun- ter in the stairways, the walls are out of nology review, I’m not sure. If you can take dancy; neatly concise; compact and pithy plumb, you cut out plaster, realigned the him to the passage, I’m happy, of course, in style or language”. But it has an edge: plaster sheet and put in expansion joints to accept. He was certainly looking after to be terse is now understood generally in as required and you completed the plas- that aspect, whatever they were doing a bad sense, brevity to the point of rude- terwork. You worked in the apartments to it. ness. Curiously, then, terse, sententious, moving from apartment to apartment fi x- Mr Dixon: I simply wanted to move spartan and laconic, which once meant ing defects, the defects were mainly due through that to some other point, Your the same thing, have drifted apart, moving to defective jointing and poor stopping up Honour, I’m sorry that it caught Mr Magee’s outwards from a common point, towards of the nail holes. There were some knocks technical horns on the way through. rudeness, pomposity, hardiness and ami- and marks on the walls due to following His Honour: I think he has to remind us ability respectively. trades, these following trade marks were he’s still here sometimes. about average for this type of job. The Mr Dixon: I’m not sure that there’s a Julian Burnside majority of works was in rectifying previ- need for that either, Your Honour.
49 News and Views Chief Justice William H. Rehnquist: A Personal Remembrance Judge Mark R. Kravitz*
At Chief Justice Rehnquist’s funeral service on Wednesday Chief expected us to discuss the parties’ positions, lower court opinions and past 7 September 2005, those who spoke in tribute of his case law, as well as parry his insightful life recalled a great Chief Justice, a great leader, a great questions, without notes or props, and all the while dodging bemused tourists and thinker and scholar, a great protector of an independent traffi c. These lessons and others proved Judiciary, a great husband, father and grandfather, a great invaluable in my private practice and still patriot and American, and, of course, a great wit. He come in handy in my current job. Most important of all, the Chief taught surely was all that and more. He was brilliant, innovative, each of his clerks by example the impor- courageous and consequential. tance of balance in their lives, a theme underscored at the tribute to him on Wednesday. The Chiefs law clerks daily OR me, he was also a great teacher saw a man at the very pinnacle of his pro- and mentor. The nation got a fession who nonetheless always kept his Fglimpse of the Chief’s educational job and himself in perspective — a man talents through his marvellous books who was a loving husband; a doting father on American history, books that made and grandfather; a great wit (who could him History Teacher in Chief. The Chief also take a joke at his own expense); a Justice’s law clerks were fortunate to player of games of all kinds from charades receive his many lessons fi rst-hand. The to poker, tennis and croquet; and a lover lessons were not about substantive law of knowledge with a vast range of intellec- or ideology. Instead, they were about our tual interests, from music and poetry, to chosen profession and about life — how religion, politics, history, geography and to be a good lawyer, a good thinker, a good even the weather. writer and, most important of all, a good Above all else, Chief Justice Rehnquist person. was a decent, gentle and honourable man The lessons came in different forms. who lacked even a hint of pretence. That Many we learned simply by observation. was apparent to all who had the great To say he was a quick study is an under- good fortune to know him. I am certain statement. We were constantly amazed by that he hoped that the values and talents his ability — noted by his son Jim at the Judge Kravitz being sworn in as a he embodied would somehow rub off on funeral service — to do more in one or two judge of the US District Court, District each of his law clerks. Our year with the hours than most of us could accomplish in of Connecticut, by Chief Justice Chief was an education like none we’d had a day. The ability to work quickly and Rehnquist, at the Chief Justice’s before — or likely will again. effi ciently was something he valued, and Vermont vacation home on 18 August he tried to teach it to each of us, often by 2003. *Judge Mark R. Kravitz clerked for Justice Rehn- imposing artifi cial (and usually tight) dead- quist (as he then was) in 1978. He practised lines for our work that no other Chambers were busily preparing Bench memos, the as a litigator at the New Haven fi rm of Wiggin laboured under. As he told me on more Chiefs clerks were bracing themselves for & Dana until 2003. President George W. Bush than one occasion, anyone can write well an oral briefi ng with the Chief. One day, nominated him to be a Judge of the United if given enough time. What a good lawyer without any notice, he would bound into States District Court for the District of Con- must be able to do is to write clearly and our offi ce, name a case, and whisk the necticut and was confi rmed 1997–2000 by the effectively with little or no time at all. He responsible clerk off for a brisk walk down Senate on 11 June 2003. Judge Kravitz will also expected us to be able to think on our the front steps of the Court and across the be teaching a course at the University of Mel- feet. Therefore, while other law clerks Capitol grounds. During those walks, the bourne on legal writing in March 2006.
50 News and Views When Barristers Make a Real Difference
Robert T. Burns
T began with an email in March 2004 from Papua New Guinea. One of my Isons had just begun a two-year stint as a volunteer teacher at Cameron High School, Milne Bay (at the far eastern end of mainland PNG). His email contained a number of anecdotes about school life in a tropical climate, for example, students who failed to arrive at the start of school without a machete got detention; about one-third of the teachers failed to arrive at all; and more. The school was poor: fl oorboards were missing, or rotten in some of the classrooms; roofs leaked; and the facilities that we take for granted were few and far between. He also stated that the school had only 10 PCs (only six of which were in working condition) to share among 700 plus students. At least, I thought, we could do something to relieve the latter. With the assistance of David Bremner, The plan had been to deliver them any more! Thanks to the support of the a notice calling for donations of unwanted to a contact in Austrade who was going Victorian Bar each student has individual computers was placed in In Brief. The to arrange shipment to Alotau free of access to a computer to use during the response was nearly overwhelming. Not charge. Rotary International had an lesson and the surplus computers have only did members of the Bar respond, agreement with PNG whereby donations been set up for research purposes in the but also donations came in from sources sent by Rotary in Australia and received school’s library where there were none who somehow got to hear of the project by Rotary in PNG would be entered “duty before. from the ripple out effect. The AAT alone free”. There then appeared to arise what The photograph shows the donated donated eight Compaq desktops. We also can best be described as a demarcation computers in the library. Many of the received a wealth of related material and dispute between the two Rotary groups. books in the background are part of 1000 fi nancial support. The Australian chapter was willing to send textbooks sent by Fintona school, which The net result was that on shipment the PCs under their name via Austrade, became aware of the PC project. day we had packed in 51 cartons: 34 but their PNG compatriots were unwill- The staff and students of Cameron desktop PCs; two laptops; one scanner; ing to accept them. Eventually, and to its High School have asked me to pass on one video recorder; a mass of software; credit in April this year Austrade arranged to the Victorian Bar their thanks and many computer books; and spare parts for a container containing the PCs to be gratitude for the donations, and I am very (salvaged from computers that did not delivered at their own behest. It took a happy to do so. work). Enough to clog up the whole of my further two months for the container to As a footnote, earlier this year dining room and hallway. arrive at the school. Time moves slowly Melbourne Water contacted me and asked The Caulfi eld RSL Lions Club, of which in PNG. if I was still looking for used computers. I am a member, sorted and re-packed the I had the pleasure of spending two They had missed the boat (so to speak) computers after they had been checked weeks at the school just before the con- for PNG, but I knew of a need in the and cleaned of any personal material. tainer arrived. I saw the realities of trying Sudanese Australian Integrated Learning On 18 June 2004 Cameron Interstate to teach even the most basic of computing (SAIL) Program and 21 PCs were donated Transport collected the cartons and skills to a class where six to eight students to support this worthy cause. delivered them free of charge to Brisbane, at a time would sit for the hour long lesson All in all, the Bar should give itself a pat where they then sat. And sat. each trying to share one computer. Not on the back.
51 Sport/Hockey Bar Hockey 2005
Philip Burchardt
Victorian Bar Hockey Team’s last win for some time — victory against New South Wales Bar
N Saturday, 22 October 2005, the stalwarts of the Victorian Bar ONone hockey team played their New South Wales counterparts at the Hawthorn-Malvern Hockey Centre, the State ground being unavailable. This is a fi xture in which the away team often struggles for numbers, and this year was no exception. Having been forewarned, however, arrangements had been put in place to ensure that three club players from the Toorak–East Malvern Club were available to ensure that the New South Wales team had a full comple- ment of 11. The New South Wales side was prob- ably stronger this year than in past years (particularly as an away team) and the fi rst half commenced in a fairly even style. We were very pleased to welcome a new recruit, Georgie Costello, who played with a fi tness and endeavour that was in pleasing contrast to her relatively geriatric colleagues. We gradually established a level of momentum, and started to discover that the New South Wales goalkeeper was in The combined rabble and supporters after the game against NSW. outstanding form. Fortunately, however, approximately half way through the fi rst right on the half time whistle. Clancy’s of minutes to go the New South Wales period, some excellent work by Niall led to shot was saved but Michael Tinney was star centre half had the opportunity for a goalkeeper-circuiting pass to Parmenter on hand to scoop the ball over the keeper a strong shot from the top of the area. who slotted from close range. into the net. Sharpley would have probably saved it, Play continued relatively evenly Every hockey player knows that a but regrettably I tried to do so also and throughout the remainder of the half, but 2-nil lead is usually defensible provided succeeded only in defl ecting it into the we were fortunate to obtain a short corner you don’t give away a goal in the fi rst ten net. Thus, all four goals were scored by minutes, and by good fortune, combined the Victorian team, but unfortunately with some excellent goalkeeping from mine was in the wrong net. Sharpley, we were able to do this. As ever, New South Wales proved The New South Wales team had excellent company after the game. brought down several fi t and strong run- Regrettably, Callaghan QC was not able to ning players, and were getting a lot of help come down this year, but his after dinner from their three ring-ins, and it was fortu- speech will doubtless regale us again in nate that we scored a scrappy third goal twelve months time. with about a quarter of an hour to play. The game was very well umpired by Parmenter got a stick on a cross ball and it Joe Hough from the Toorak–East Malvern defl ected into the net. Club and by Tom Lynch, who very The game continued at a fair pace decently volunteered when the mooted Michael Tinney in action. in humid conditions, and with a couple second umpire failed to materialise.
52 Game against the Law Institute
On Thursday, 27 October 2005, we played version rate would have made the score the Law Institute of Victoria team at the far closer. Against this, however, the State Hockey Centre. solicitors did have a policy of player Word had reached us from other rotation and did not keep their strongest sources that the solicitors were likely to eleven on the ground all the time. Had include a current national squad player they done so, the score would have been as well as a State player and a number of yet larger. State League 1 players. The umpires, Tony Dayton and an Of the entire solicitors’ squad of about international umpire who helped us The action. 15, only one was as old as our youngest out by taking a whistle, selected, yet player. again, Ben Stockman as the best player This disparity in age, leaving aside on the ground and accordingly he was questions of skill, always meant that awarded the Rupert Balfe trophy for the we would struggle, and we did. It did not year. help that Parmenter went off injured after Stockman is also the Captain of their only a few minutes and was unable to team and photographs will doubtless show return. him holding the Scales of Justice cup. Notwithstanding this, we achieved a The team that beat us, in addition fair amount of possession and actually to being youthful, was almost entirely managed to obtain a number of short cor- selected from players, both women and ners relatively early in the game, although men, playing at the highest grades of we failed to convert. hockey. This was so even though their The superior skill of the Law Institute international squad player and Victorian team was shown by the fact that they got State representative player did not two short corners and put both in the net. attend. They cantered away to a 4-nil score line, In the ultimate, it is a matter for notwithstanding the fact that each mem- the solicitors who they want to play ber of the Bar team was playing well up to but, as I pointed out to Stockman, there their respective abilities. is not much point in a competition At that point, John Costello scored a between a team almost entirely composed very good goal for us and we went in 4-1 of players under 30 who are playing at the down at half time. The second half could highest level against a team of players be said to have been more of the same, almost all of whom are over 40, and only although Ross Gordon scored a superb a handful have ever played at the highest individual effort, and the fi nal score was level. 7-2 to the Law Institute team. The veiled threat that we would move In fact, we had far more short corners this match to a veterans competition throughout the game and a better con- (which we would still probably struggle to win) may introduce some more reason- able selection policy on the solicitors’ part next year. Equally, they may decide that reasonable does not mean pandering to our weaknesses. Time will tell. Given that the New South Wales barris- ters are recruiting a current international player next year, this article may refl ect our last victory for some time to come. We shall have to encourage some of the better younger solicitors to join the Bar at the earliest opportunity. Those who played against the New South Wales side were Sharpley, Burchardt, Wood, Dreyfus, Clancy, Appudurai, Niall, Parmenter, Michael Tinney, Andrew Tinney, Ross Gordon and Georgie Costello. Against the Law Institute, all of those played, apart from Sharpley, Dreyfus and Niall, but we were augmented by John Costello and The team who opposed the Law Institute. Tweedie.
53 Lawyer’s Bookshelf
prominence in the last 30 years and can Administrative Law affect all of us at some time, whether at Context and Critique the local council or Commonwealth gov- The Essoign ernment level. For those of us who work in By Michael Head this area of law, Michael Head’s book and Wine Report Federation Press, 2005 is an essential addition to the library. pp v–xxv; 1–248; Appendix 249–250; By Andrew N. Index 251–262 C.J. King T is generally accepted that administra- Bristow Itive law is a complicated fi eld of law, and Michael Head’s book, Administrative DARLING PARK ARTHUR Law Context and Critique, is a very use- BOYD COLLECTION ful guide that provides an overview of this GRIOGNIER 2005 diffi cult area of law as a primary guide for the student. However, practitioners ARLING Park is a boutique, will also fi nd it an invaluable fi rst point of family-owned vineyard and reference. Dwinery on the Mornington The book is written in a clear and Peninsula, producing handcrafted concise style and although it is a com- sophisticated wines. It is proposed to panion text to Douglas and Jones’s, be certifi ed organic by the end of this Administrative Law Commentary and year. The Arthur Boyd label depicts Materials; it stands alone as an introduc- Judicial Brotherhood one of his most famous paintings, tory text. It allows the reader to quickly “The Wedding”. establish the relevant principles and then S Supreme Court Associate This wine, the “Griognier”, is a consider the issues in more depth by UJustice Anthony Kennedy is the blend of Pinot Gris and Viognier. The reference to Douglas and Jones. A help- narrator: Pinot Gris was sourced from the win- ful comparison table is provided to cross ery vineyard. Whole bunch pressing, reference to chapters in the Douglas and Kennedy mentioned that he belonged barrel fermentation and extended Jones text. to the board of an American Bar Asso- lees contact were used to create The author has provided questions for ciation group that advises judges and intensity while retaining elegance. consideration at the end of each chap- lawyers in China, where he travels The Viognier from the Alpine Valleys ter which enable one to consolidate the about once a year. “There was a dinner was tank fermented to provide maxi- information gained. As well, there are for one of their vice-premiers,” he said. mum fruit fl avour. tables providing key points on each topic “I knew that I had to give a gift. We The wine has a bouquet of apri- and where appropriate, a “useful links” don’t have a budget for these things, cots, fruit salad and spices. section to relevant websites, such as the so I went down to the Supreme Court The wine colour is a light pale Commonwealth Ombudsman’s site. gift shop, and I found one of these straw. The wine is crisp and soft on In putting administrative law into calendars. It was in a nice leather the front palate. It has an astringent, context, the author notes the increasing case, and it had some anniversary from but enjoyable back palate. It is ready power of the executive, which is limit- American constitutional law for every to drink now and is a perfect summer ing the sovereignty of parliament, and day of the year. So we’re at this dinner, wine. It is available from The Essoign reminds us of basic principles such as the and I present the calendar to him, and at $28.00 a bottle or $6.50 a glass separation of powers and the rule of law, he’s so pleased, so I just say, ‘When’s ($23.80 takeaway). and puts into perspective the framework your birthday?’ ‘Why don’t you look it I would rate this wine as a pleas- in which administrative law functions. up?’ And he says whatever the date ant and attractive “Reader”, young, The author reviews the relevant legisla- was and hands the calendar to the enthusiastic and able to be enjoyed tion and cases against the political, social interpreter. So the interpreter just now. and historical background in a concise and stands there. He looks at me. He looks easy to understand format. He covers all around. There was this silence. Clearly, of the essential principles and concepts of he doesn’t know what to do. So I say, administrative law, including a brief review ‘Read it, read it.’ And the entry is for of the application of estoppel to adminis- Dennis v US, affi rming prison time trative law: Minister for Immigration, for 11 American Communists. There Local Government and Ethnic Affairs was this silence again. My security guy v Kurtovic (1990) 21 FCR 193. The headed to the door. Then the guest fi nal chapter provides an overview of of honor just laughed and laughed.” the administrative law jigsaw and a fl ow Kennedy laughed, too, adding, “I am chart for considering an administrative not a world-class diplomat.” law issue. The book achieves its purpose of making administrative law understand- Jeffrey Toobin, “Annals of Law: able, accessible and interesting. Swing Shift”, 81(27) New Yorker 42 Administrative law is a relatively new at 48 (12 September, 2005). area of law but one that has increased in
54 From 1 March 2006 Ludlows will be relocated at William Crockett Chambers, Mezzanine Level, 530 Londsale Street, Melbourne
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