Banco Court lectures 2018

Introduction

In 2012 the Banco Court was the venue for the fi rst seminar to be conducted in this building. In the years since then this magnifi cent ceremonial courtroom has seen many lectures and presentations from distinguished judges and academics. The tradition continues in 2018 when, for the fi rst time, the Supreme Court Library has compiled this event guide to 13 free legal lectures presented in the Banco Court.

The Selden Society lectures hosted by the library are presented in the guide, as is the Supreme Court Oration—which this year will be delivered by the Honourable Geoffrey Ma GBM, Chief Justice of the Hong Kong Court of Final Appeal. The guide also features lectures from the jointly managed Current Legal Issues seminar series, the Australian Academy of Law Queensland lecture, the Australian Institute of Judicial Administration’s annual oration, and the fi rst event of the Justice in Focus series.

Across these various lecture series the topics are wide-ranging and engaging, with the speakers being drawn from many different courts and universities.

The Supreme Court of Queensland is pleased to welcome these distinguished speakers to the Banco Court. I trust you will enjoy and be informed by these lectures and I encourage you to attend as many as possible.

Catherine Holmes Chief Justice Calendar of lectures

March May

Tuesday 13th Thursday 3rd Justice in Focus series Selden Society lecture series Soft on crime? How sentencing Guns and judges: Antonin Scalia and can better refl ect community values the right to bear arms Her Excellency Professor the Honourable The Honourable Justice Glenn Martin AM Kate Warner AC, The Honourable Margaret McMurdo AC, Dan Rogers Thursday 17th

Thursday 22nd Current Legal Issues seminar series Fiduciary law: prospective fi duciary duties Current Legal Issues seminar series Professor Lionel Smith Criminal evidence: whatever happened to Weissensteiner—the person and Monday 21st the principle? Soraya Ryan QC 2018 Supreme Court of Queensland Oration Criticism of the courts and judges: informed criticism and otherwise The Honourable Chief Justice Geoffrey Ma GBM

Thursday 24th AIJA Oration The adaptability of the law to change The Honourable Chief Justice AC

June

Thursday 28th Selden Society lecture series Private law’s revolutionaries: authors, codifi ers and merchants? Professor Hector MacQueen August October

Thursday 9th Thursday 4th Current Legal Issues seminar series Australian Academy of Law lecture Constitutional law: who is afraid Litigation funding: access and ethics of proportionality? The Honourable Philip Cummins AM Professor Adrienne Stone Thursday 25th Thursday 30th Selden Society lecture series Selden Society lecture series— Barwick—his place in the legal pantheon second Annual Lord Atkin lecture The Honourable Justice John Dowsett AM The Irish convict doctor who delivered Dick Atkin—Dr O’Doherty The Honourable Justice AC November

Thursday 22nd September Selden Society lecture series Thursday 20th Law and politics in McCawley’s case Professor Nicholas Aroney Current Legal Issues seminar series Jury directions: the struggle for simplicity and clarity The Honourable Justice AC

All lectures will be held in the Banco Court, Queen Elizabeth II Courts of Law Level 3, 415 George Street, CPD points: 1 point per hour, self assessed (BAQ and QLS) Free admission, please register using the links provided. For more information phone 07 3006 5130 or email [email protected] iStock/fhogue Justice in Focus series

Soft on crime? How sentencing can better reflect community values

Tuesday 13 March 5.15 for 5.30pm Followed by refreshments

To register please visit sclqld.org.au/focus

Access to justice is about more than the availability of legal services—it’s about achieving just outcomes, too.

Recent research findings show that, in 62% of cases, jurors would issue more lenient sentences than judges when surveyed following a guilty verdict. Meanwhile, the ‘Judge for Yourself’ community education project is successfully engaging Queenslanders on the topic of sentencing with some revealing results.

Join our experts as they talk about the work that is providing insight into community values around sentencing and why public education projects are a key part of the access to justice equation.

This event will be chaired by Radio National’s Cathy van Extel.

Her The Dan Rogers Excellency Honourable is a solicitor Professor the Margaret and a Honourable McMurdo AC member Kate Warner is the former of the AC is the president Queensland Governor of of the Sentencing Tasmania. Previously she was Queensland Court of Appeal, Advisory Council as well as Professor, Faculty of Law, at which she presided over the Secretary of Caxton Legal the University of Tasmania from 1998 to 2017. She was Centre. He is also a Director and Director of the Tasmania appointed a Companion of the at Robertson O’Gorman and Law Reform Institute. She is Order of Australia in 2007 for holds both a Masters of Law the lead author on the 2017 service to the law and judicial and Specialist Accreditation research paper ‘Measuring administration in Queensland, in Criminal Law. Jurors’ Views of Sentencing: particularly in areas of legal Results from the Second education and women’s issues. Australian Jury Study’. Margaret currently serves as the Chair of Legal Aid (Photograph courtesy of Government House Tasmania). Queensland. iStock/fhogue Johan Manfred Weissensteiner is arrested in Cairns, 1991. © News Ltd Current Legal Issues seminar series

Criminal evidence: whatever happened to Weissensteiner— the person and the principle?

Thursday 22 March 5.00 for 5.15pm Followed by refreshments To register please visit sclqld.org.au/cli

Weissensteiner was charged with the murder of a couple with whom he had been sailing, for some time, on their boat. He gave inconsistent accounts of the couple’s whereabouts and their bodies were never found. The state of the boat suggested that their departure from it was unplanned. The case against Weissensteiner was wholly circumstantial and he exercised his right to silence before trial and at trial. He therefore provided no evidence to displace, counter, or raise a doubt about, the guilty inference the Crown argued was available on the evidence when he was the only one who might have that evidence. Generally, a person accused of a criminal offence has a right to remain silent before trial and at trial and trial judges instruct juries that they may not draw an inference adverse to an accused from their silence. At Weissensteiner’s trial, the trial judge directed the jury that they might more safely draw an inference of guilt from the evidence because he did not give evidence of relevant facts which could be perceived to be within his knowledge. He was convicted of the murders of the couple. He appealed against his convictions. In 1993, the High Court, by majority, dismissed the appeal: ‘… in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused’. In other words, in cases where an inference of guilt is open on the whole of the prosecution case, an accused person’s failure to testify about matters peculiarly within their knowledge could make it easier for the jury to be satisfied, beyond a reasonable doubt, of the guilty inference. In the years that followed Weissensteiner, the High Court confined the principle to rare and exceptional cases, but very little was heard about it from the early 2000s onward until it was mentioned by the High Court in R v Baden-Clay [2016] HCA.

This paper will examine the state of the principle which permits the use of an accused person’s silence in proof of their guilt. It will also discuss briefly Weissensteiner himself, who was deported to Austria in 2004.

Soraya Ryan QC holds a Bachelor of Commerce and (First Class Honours) from The .

Soraya Ryan began practice at the private in January 2010. In November 2013, she was appointed Queen’s Counsel. She is often briefed in matters where a defendant is particularly vulnerable or difficult or where the brief itself is complex or novel. She has been a part time Commissioner of the Queensland Law Reform Commission, and before that, an Executive Consultant to the Commission. She has been one of the authors of Carter’s Criminal Law of Queensland since 1996. Johan Manfred Weissensteiner is arrested in Cairns, 1991. © News Ltd Associate Justice Antonin Scalia. Photograph by Steve Petteway, Collection of the Supreme Court of the United States. Selden Society lecture series

Guns and judges: Antonin Scalia and the right to bear arms

Thursday 3 May 5.15 for 5.30pm Followed by refreshments To register please visit sclqld.org.au/selden

Antonin (Nino) Scalia was, for many years, the best known member of the Supreme Court of the United States. He was charming, mercurial, polarising and stubborn. Scalia was a member of the court for nearly 30 years until his unexpected death in 2016 at the age of 79.

Justice Scalia collected a trove of awards and achievements on his way to the Bench. At Harvard he graduated magna cum laude and became a Sheldon Fellow. His legal career began in 1961 in a respected firm in Cleveland, Ohio but he wanted to teach and took up a post as professor of law at the University of Virginia in 1967. Four years later, he entered public service in the Nixon administration and became an Assistant Attorney General in 1974. It was in that role that he argued his only case before the Supreme Court in Alfred Dunhill of London v Republic of Cuba.

His judicial career began in 1982 when President Reagan appointed him to the United States Court of Appeals for the District of Columbia Circuit. Four years later he was unanimously confirmed by the Senate as an Associate Justice of the Supreme Court.

Many commentators opined that Scalia would unite the conservative justices on the Court. They were wrong. Scalia was more concerned with being true, as he saw it, to the principles of textualism and originalism than with forming coalitions of like-minded judges. He wanted to win each argument, and his frustration with the reasoning of other members of the Court would often lead him to engage in ferocious and destructive dissents. He was, as Bruce Murphy observed in Scalia—A Court of One, ‘driven to be right rather than influential’.

But, he was influential in other ways. His dissents worked to promote ‘originalism’ as a means of interpreting the US Constitution. In one of the most influential decisions of the last 25 years, Scalia wrote the majority opinion in District of Columbia v Heller. It was the first extensive decision on the Second Amendment and the right to bear arms. He engaged in a lengthy historical exposition and a grammatical analysis of the amendment. This decision changed the previously accepted understanding of the amendment and it is often mistakenly thought to support the abolition of all restrictions on gun ownership.

The Honourable Justice Glenn Martin AM was in practice as a barrister from 1979 until his appointment as a judge of the Supreme Court in 2007. In 2013 he received additional appointments as President of the Industrial Court of Queensland and the Queensland Industrial Relations Commission. Associate Justice Antonin Scalia. Photograph by Steve Petteway, Collection of the Supreme Court of the United States. iStock/xijan Current Legal Issues seminar series

Fiduciary law: prospective fiduciary duties

Thursday 17 May 5.00 for 5.15pm Followed by refreshments To register please visit sclqld.org.au/cli

It has become an orthodoxy in some quarters that fiduciary duties are only proscriptive, forbidding certain actions, and never prescriptive, requiring positive action. I will argue that this is a misunderstanding. My argument will begin by attempting to explain how this orthodoxy arose, and then by challenging the presuppositions that led to it. I will argue that some of the most important duties of a fiduciary are prescriptive duties. My goal is to develop a more accurate understanding of the fiduciary relationship and its many features.

Professor Lionel Smith is interested in all aspects of fundamental comparative private law. He is particularly engaged with how private law understands aspects of unselfish behaviour, and he has an active research agenda in the law relating to trusts, fiduciary obligations, gifts, and unjust enrichment, in civil law and in common law. He is always interested in supervising postgraduate research in these fields.

He is the author of The Law of Tracing (Oxford University Press, 1997), and a co-author of Waters’ Law of Trusts in Canada, 4th ed. (Carswell, 2012). He is a co-author and the English reporter of Commercial Trusts in European Private Law (Cambridge University Press, 2005; paperback, 2009). He is a contributor to Canadian Corporate Law: Cases, Notes and Materials, 4th ed. (Butterworths, 2010), Oosterhoff on Trusts: Text, Commentary and Materials, 7th ed. (Carswell, 2009), and The Law of Restitution in Canada: Cases, Notes and Materials (Emond Montgomery, 2004). He is the editor of three works on comparative trust law: The Worlds of the Trust (Cambridge University Press, 2013); La fiducie en droit civil (a special issue ((2013) 58:4) of the McGill Law Journal) andRe-imagining the Trust: Trusts in Civil Law (Cambridge University Press, 2012). He is also the author of numerous articles, book chapters, notes and reviews.

Lionel Smith is a Titular Member of the International Academy of Comparative Law. He is also a member of the American Law Institute, the European Law Institute, and the International Academy of Estate and Trust Law. He is a non-practising member of the Bar of Alberta. In 2017 he was appointed Visiting Professor at the Faculty of Law, .

(Photograph courtesty of Lysanne Larose, McGill University). iStock/xijan Hong Kong Court of Final Appeal 2018 Supreme Court of Queensland Oration

Criticism of the courts and judges: informed criticism and otherwise

Monday 21 May 5.15 for 5.30pm Followed by refreshments

To register please visit sclqld.org.au/oration

The freedom of speech and of the press are proven precious rights, not only in Hong Kong but throughout common law jurisdictions. They benefit society and no one and no institution, especially public ones, should be exempt from either adverse comment or criticism. However, where the public interest is adversely affected, different considerations come into play. In the context of the courts, there has been a noticeable trend that criticism of the work of the courts and of judges has become much less restrained than before, even sometimes to the point of being personal and at times abusive. Ought we be able to brush such criticisms aside or can more be done to enable criticisms to be based on commentators being better informed? After all, one valid criticism of the law is that not enough is done to explain how the administration of justice works in practice. What does ‘being better informed’ actually mean and is relevant information about the courts readily available in the first place? These are questions that provoke a discussion about the rule of law itself, particularly in Hong Kong.

The Honourable Chief Justice Geoffrey Ma Tao-li GBM was appointed Chief Justice of the Court of Final Appeal on 1 September 2010.

Chief Justice Ma was born in Hong Kong in 1956. He studied law and graduated with an LLB from Birmingham University in 1977. After completing the Bar Finals in 1978, he was called to the English Bar (Gray’s Inn) in 1978, the Hong Kong Bar in 1980, the Bar of the State of Victoria in Australia in 1983 and the Bar of Singapore in 1990. He was appointed Queen’s Counsel in 1993. He became an Honorary Bencher of Gray’s Inn in 2004. In 2011, he was admitted to the degree of Doctor of Laws (honoris causa) by the University of Birmingham. In 2012, he became an Honorary Fellow of Harris Manchester College, Oxford. In 2016, he became an Honorary Bencher of the Middle Temple and was admitted to the degree of Doctor of Laws (honoris causa) by the Chinese University of Hong Kong.

Chief Justice Ma was appointed a Recorder of the Court of First Instance from 2000 to 2001 before his appointment as a Judge of the Court of First Instance in 2001. He was appointed a Justice of Appeal in 2002, and became Chief Judge of the High Court in 2003. Before joining the Judiciary, Chief Justice Ma was in private practice in Hong Kong and in Singapore.

Chief Justice Ma is a Patron of the Bingham Centre for the Rule of Law and is a Patron of the International Advocacy Training Council.

Chief Justice Ma was awarded the Grand Bauhinia Medal in June 2012. Hong Kong Court of Final Appeal iStock/PhonlamaiPhoto AIJA Oration

The adaptability of the law to change

Thursday 24 May 5.15 for 5.30pm Followed by refreshments To register please visit sclqld.org.au/aija

This year’s oration opens the Australasian Institute of Judicial Administration conference Forces of Change—Defining Future Justice. A central theme of the conference will be conceptualisation of future justice and conversation on the fundamental principles which must be adapted in a period of significant change and disruption. The conference will discuss such drivers for change as emergent technologies, consumerism, big data, socio-economic influences and changes in legal practice amongst others. Courts will not be immunised from change and must plan for judicial and court administration in this context. There will be opportunities. There will also be challenges and maybe threats to fundamental principles which underpin the core of justice. Courts and tribunals need to be ready to shape policy and future justice, identifying those bedrock principles which must be preserved and translated into this new environment. Forces of Change—Defining Future Justice will continue the conversation on procedural justice and access in a rapidly changing world.

Justice Kiefel’s oration ‘The adaptability of the law to change’ will discuss the extent to which judge-made law can accommodate changes in, or the needs of, society; it will survey views about the role of the courts in this regard over time; whether certainty in the law operates as a limit to change; and where such change is contemplated, what values inform developments in the law.

The Honourable Chief Justice Susan Kiefel AC was appointed Chief Justice of the in January 2017. At the time of her appointment she had been a Judge of the High Court since September 2007 and previously served as a judge of the Federal Court of Australia and the Supreme Court of Queensland. She was admitted to the Queensland Bar in 1975 and, in 1987, was the first woman in Queensland to be appointed Queen’s Counsel. In 1984 she was awarded the degree of from the University of Cambridge. In 2011 she was appointed a Companion in the General Division of the Order of Australia. She was elected a titular member of the International Academy of Comparative Law in 2013 and an Honorary Bencher of the Honourable Society of Gray’s Inn in 2014. iStock/PhonlamaiPhoto League of the Holy Court, c. 1375. Image is in the public domain. Selden Society lecture series

Private law’s revolutionaries: authors, codifiers and merchants?

Thursday 28 June 5.15 for 5.30pm Followed by refreshments To register please visit sclqld.org.au/selden

Has there ever really been a revolution in private law, never mind the law of obligations? This lecture approaches that question by first considering the relationship between law and revolution in general as set out by the late Harold J Berman. In rejecting Berman’s view that Roman law was not, in its own right, part of the Western legal tradition, I suggest rather that the Roman jurists provided many of that tradition’s foundational concepts, especially in private law and obligations. These included juristic presentation of private law as a unified whole comprising three subjects: persons (the actors in law), things (put simply, their property and obligations), and actions (the means by which they could claim property and obligations from others). These concepts played a further role in legal development from the Middle Ages to the present, not just in juristic writings, but also in association with the ecclesiastical and political revolutions on which Berman focused most. For example, the tripartite division of private law is to be found in all post-revolutionary codifications achieved or attempted from the French Revolution on, including those in the USA. The use made of Roman concepts did however change over time, and it is here, if anywhere, that we may detect revolution rather than evolution inside the law itself. Within obligations, a general understanding of contract as comprising all agreements had its roots in Roman texts, but Roman law itself had never taken the idea very far as a tool for legal analysis. Instead it was developed in juristic writing from the sixteenth century on, in part responding to the realities of contemporary commerce which had long ceased to correspond with the Roman categorisations of particular contracts. The argument therefore is that if the development of private law can be characterised as revolutionary at any point, then the revolutionaries included those who wrote about law in a systematic manner, the codifiers whose work followed on from political revolutions, and the merchants whose business needs otherwise left the law behind.

Professor Hector MacQueen has been a member of the Edinburgh Law School staff since 1979, having also taken his LLB and PhD at Edinburgh. Appointed to the Chair of Private Law in 1994, he was Dean of the Law School 1999-2003, and Dean of Research and Deputy Head of the College of Humanities and Social Science in the University 2004-2008. He was on leave of absence from January 2010 to September 2017, having taken up an appointment as a Scottish Law Commissioner and returns to the University full time in April 2018.

Professor MacQueen has previously held visiting appointments at Cornell University in the USA, the University of Utrecht in the Netherlands, and Stetson University College of Law (‘Florida’s first law school’). He has been a Fellow of the Royal Society of Edinburgh since 1995 and was elected a Fellow of the British Academy in 2006. He currently chairs the Law section of the Academy, and is also a cross-member in Medieval Studies. Professor MacQueen was President of the Society of Legal Scholars (2012–2013) and Vice-President (Humanities) of the Royal Society of Edinburgh (2008–2011). League of the Holy Court, c. 1375. Image is in the public domain. High Court of Australia. Photo by Thennicke (cropped), Creative Commons CC BY-SA 4.0 Current Legal Issues seminar series

Constitutional law: who is afraid of proportionality?

Thursday 9 August 5.00 for 5.15pm Followed by refreshments To register please visit sclqld.org.au/cli

The Australian High Court in McCloy v NSW [2015] HCA 34 adopted ‘structured proportionality analysis’ as part of Australian constitutional law and, in doing so, it appears to have brought Australian constitutional law at least somewhat more into alignment with global constitutional thinking. Almost immediately, however, the move has attracted controversy both within the Court and with external detractors of proportionality who regard it as ill-suited to the Australian constitutional context. This paper will examine the nature of proportionality, having regard to its roots in Europe and its migration through the rest of the world. Although taking the critiques of proportionality seriously, it will seek to show that proportionality is an acceptable method of analysis in Australian constitutional law. However, it will be argued that proportionality poses some challenges for the courts and for the rule of law that require careful navigation.

Professor Adrienne Stone holds a Chair at Melbourne Law School where she is also an ARC Kathleen Fitzpatrick Laureate Fellow, a Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies.

She researches in the areas of constitutional law and constitutional theory with particular attention to freedom of expression. Her Laureate Fellowship on the theme ‘Balancing diversity and social cohesion in democratic constitutions’ investigates how Constitutions, in their design and in their application, can unify while nurturing the diversity appropriate for a complex, modern society.

She has published widely in international journals including in the International Journal of Constitutional Law, the Toronto Law Journal and in the Oxford Journal of Legal Studies.

Her recent publications include ‘Small Brown Bird: Values, Aspirations and the Australian Constitution’ (with Elisa Arcioni) in the International Journal of Constitutional Law and ‘Constitutional Orthodoxy: The Deepening Divide’ in the Melbourne University Law Review. With Cheryl Saunders AO she is editor of the forthcoming Oxford Handbook on the Australian Constitution.

She is First Vice President of the International Association of Constitutional Law, Vice President of the Australian Association of Constitutional Law and is an elected Fellow of the Australian Academy of Law. Through the Centre for Comparative Constitutional Studies she is extensively engaged with government and non-governmental organisations. In 2015, she was a member of the Advisory Committee for the Australian Law Reform Commission’s Inquiry on Traditional Rights and Freedoms.

She has taught at law schools in Australia, the USA and Canada and delivered papers and lectures by invitation at numerous universities in Australia, North America, Europe and China. In 2011, she was a Visiting Professor at Georgetown University Law Centre in Washington DC. High Court of Australia. Photo by Thennicke (cropped), Creative Commons CC 4.0 BY-SA Dr Kevin Izod O’Doherty. Reproduced courtesy of State Library of Queensland Selden Society lecture series— second Annual Lord Atkin lecture

The Irish convict doctor who delivered Dick Atkin— Dr O’Doherty

Thursday 30 August 5.15 for 5.30pm Followed by refreshments

To register please visit sclqld.org.au/selden

Lord Atkin was heavily involved in medico-legal issues. As President of the Medico-Legal Society he spoke about compensation for industrial accidents and disease, and about crime and mental health. His official report about criminal responsibility of the insane distinguished between medical interpretations of mental illness and concepts that had to be understood by a jury.

Atkin’s first encounter with a doctor was in 1867, when Dr Kevin O’Doherty attended his birth in Brisbane. Twenty years earlier O’Doherty had been transported to Tasmania for his advocacy of Irish nationalism. By 1867 he was a leading surgeon in Brisbane, and, like his friend Robert Atkin, an advocate of liberal democracy. He was one of the first presidents of the Queensland Medical Society and carried out extensive honorary work at Catholic hospitals. As an MP he introduced Queensland’s first Public Health Act, championed the improvement of public health and as an opponent of the traffic in Kanakas sponsored the bill to stop their recruitment. He was a member of Queensland’s Parliament until 1886 when he returned to Ireland and was elected to the House of Commons in that country. Soon after that, political differences in Dublin led him to return to Brisbane.

I have suffered much in mind and body—torn from the bosom of an affectionate family—incarcerated during five months in the vilest of prisons, —cut off from all communication with my friends—subjected to every privation which could render a man miserable…

Petition by Kevin O’Doherty written in Richmond Prison to the Lord Lieutenant of Ireland, 20 November 1848

Justice Keane charts O’Doherty’s extraordinary life.

The Honourable Justice Patrick Keane AC is a graduate of The University of Queensland (Bachelor of Arts 1973, Bachelor of Laws with first class honours 1976) and Oxford University (Bachelor of Civil Law with first class honours 1977). He was admitted to the Queensland Bar in 1977 and in 1988 he was appointed Queen’s Counsel. He was Solicitor-General for Queensland from 1992 to 2005 and served as a judge of the Court of Appeal, Supreme Court of Queensland (2005–2010) before joining the Federal Court of Australia. He was appointed to the High Court of Australia in March 2013. At the time of his appointment he was Chief Justice of the Federal Court of Australia. Justice Keane was appointed a Companion in the General Division of the Order of Australia in 2015. Dr Kevin Izod O’Doherty. Reproduced courtesy of State Library of Queensland QEII Courts of Law, Brisbane Current Legal Issues seminar series

Jury directions: the struggle for simplicity and clarity

Thursday 20 September 5.00 for 5.15pm Followed by refreshments

To register please visit sclqld.org.au/cli

In the past decade the Law Reform Commissions of Queensland, and Victoria have addressed references on the content of jury directions in criminal trials. The impetus for these references was the perception that directions that judges are required to give are often excessively long and complex, making it doubtful that they are understood by the intended audience. Allied to this perception, was the concern that the intended audience had ceased to be the jury and had become the appellate court. There is consensus on the desirability of directions that are short and readily comprehensible but there are differing views about how that goal is achieved consistently with ensuring the fair trial of the accused. Victoria alone has addressed the problem by legislation (the Jury Directions Act 2013 since repealed and replaced by the Jury Directions Act 2015 as recently amended). Whether legislative prescription is the answer remains to be seen. Legislative moulding of the substantive criminal law not uncommonly adds complexity as the directions on consent necessitated under amendments to the Crimes Act 1958 (Vic) discussed in R v Getachew (2012) 286 ALR 196 illustrate. On the other hand, the High Court of Australia’s endeavour to frame simple, clear directions in Clayton v The Queen (2006) 81 ALJR 439 has been criticised as a trap for young players (Eames, ‘Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts’, (2007) 29 No 2 Aust Bar Review 161).

The Honourable Justice Virginia Bell AC was appointed to the High Court of Australia in February 2009. At the time of her appointment she was a judge of the New South Wales Court of Appeal. She graduated from the University of Sydney as a Bachelor of Laws in 1977. After seven years as a solicitor with the Redfern Legal Centre, she was admitted to the New South Wales Bar in 1984 and was appointed a Senior Counsel in 1997. Justice Bell practised as a public defender between 1986 and 1989 before returning to the private Bar. Between 1994 and 1997 she was a counsel assisting the Royal Commission into the New South Wales Police Service. Justice Bell was appointed a judge of the Supreme Court of New South Wales in March 1999. She served as president of the Australian Institute of Judicial Administration (2006–2008).

(Photograph courtesy of the High Court of Australia) QEII Courts of Law, Brisbane Stained glass window in the Cathedral of Saint Rumbold in Mechelen, Belgium. iStock/jorisvo Australian Academy of Law lecture

Litigation funding: access and ethics

Thursday 4 October 5.15 for 5.30pm Followed by refreshments To register please visit sclqld.org.au/aal

In words written on our hearts, the beloved Downing Professor of the Laws of England at the University of Cambridge, Frederic William Maitland, in the first of hisLectures on the forms of action at common law (1910), wrote ‘the forms of action we have buried, but they still rule us from their graves’. So they were; and so they do.

There is an inherent tendency in the law, and in judging, to cling to the past, in matters of substance and in matters of form. In tension with this is law reform: by judges, the profession, academics, and formal law reform bodies.

Those few of us senior enough to recall the days at law school in which we lovingly studied the offences of maintenance (providing financial assistance to a litigant without lawful justification) and champerty (an aggravated form of maintenance, being the unlawful sharing of proceeds of litigation) also witnessed the statutory abolition in Australia (but not in New Zealand or Ireland) of those bulwarks against manipulation and misuse of the litigation process. The dawn of rigorous consideration of access to justice was upon us, heralded by reports such as Access to Justice: an Action Plan (1994) of the Access to Justice Advisory Committee of the Commonwealth, chaired by Ronald Sackville, and the Access to Justice Final Report (1996) by The Right Honourable the Lord Woolf MR on the civil justice system in England and Wales. In those reports, and in many others, the challenge was taken up to reform the law from past shibboleths of procedure, just as the forms of action had been. Just as with the forms of action, those past shibboleths still rule from their graves.

This lecture will consider the above tension in the areas of litigation funding and class actions in contemporary Australia.

Although, necessarily, in the lecture there will be some reference to procedure, its focus will be upon the ethical issues sitting behind the above practices. Once the hydra-headed hound is released, will it consume us?

The Honourable Philip Cummins AM commenced as Chair of the Victorian Law Reform Commission on 1 September 2012 and was a Judge of the Supreme Court of Victoria from 1988 to 2009. He served in all Supreme Court Divisions and in the Court of Appeal, including as Senior Judge of the Trial Division of the Court and Principal Judge of the Criminal Division. In December 2015 Philip was elected President of the Commonwealth Association of Law Reform Agencies, based in London. His term as President is to 31 December 2019.

Stained glass window in the Cathedral of Saint Rumbold in Mechelen, Belgium. iStock/jorisvo (Photograph by Paul Philipson). Sir 1972 | by Reginald Campbell | Collection: National Portrait Gallery, Canberra | Gift of Ross G Barwick and family 2013 | Donated through the ’s Cultural Gifts Program Selden Society lecture series

Barwick—his place in the legal pantheon

Thursday 25 October 5.15 for 5.30pm Followed by refreshments To register please visit sclqld.org.au/selden

The Right Honourable Sir Garfield Barwick AK GCMG was born in Sydney in 1903. He was called to the Bar in 1927 and took silk in 1942. He became one of Australia’s most successful commercial barristers and had a reputation as a brilliant orator. He appeared in many high-profile cases.

In 1958 Sir Garfield was elected Liberal member for Parramatta in the Australian Parliament and served as both Attorney-General and Minister for External Affairs in the Menzies government. Following his time in Parliament, Sir Garfield was appointed Chief Justice of the High Court of Australia, a post which he held for a record 17 years.

Sir Garfield Barwick retired from court at the age of 77 and died in 1997 aged 94.

The Honourable Justice John Dowsett AM was appointed as a judge of the Federal Court of Australia in 1998, has been an additional judge of the Supreme Court of the Australian Capital Territory since 2004 and served as a judge of the Supreme Court of Queensland (1985–1998).

Justice Dowsett was called to the Bar in 1972, appointed Queen’s Counsel in 1982, is a Life Member of the Bar Association of Queensland, and a previous Chair of its Continuing Professional Development Committee (2004–2011).

Since 2011, Justice Dowsett has been a Community Ordinary Member of The College of Law, and was made an Honorary LLM and Fellow in 2016.

In 2012, Justice Dowsett was made a Member of the General Division of the Order of Australia for ‘service to the law and to the judiciary, to professional associations, and to legal education in the area of litigation and dispute resolution’.

Justice Dowsett has been the Chair of The University of Queensland Law School Advisory Board since 2014 and was appointed as an Adjunct Professor in The University of Queensland TC Beirne School of Law in 2017.

Justice Dowsett was actively involved in the establishment of the National Judicial College of Australia and until very recently, was the Chair of its Dialogues on Being a Judge Program. He has also been active in other judicial bodies and has served as a Trustee of Brisbane Grammar School. Sir Garfield Barwick 1972 | by Reginald Campbell | Collection: Nationaland family Portrait 2013 | Donated Gallery, through Canberra the Australian | Gift of Ross Government’s G Barwick Cultural Gifts Program Thomas William McCawley. Reproduced courtesy of State Library of Queensland Selden Society lecture series

Law and politics in McCawley’s case

Thursday 22 November 5.15 for 5.30pm Followed by refreshments

To register please visit sclqld.org.au/selden

The appointment of Thomas William McCawley to the Supreme Court of Queensland was a decision destined to provoke controversy. The challenge to his appointment was on the basis of what were called ‘purely legal and constitutional grounds’, but personal motives, partisan manoeuvring and ideological goals were never far from the surface. The case was heard by the Supreme Court, the High Court of Australia and ultimately the Privy Council of the United Kingdom and involved several layers of constitutional controversy. These included the questions whether judges could be appointed to the Supreme Court for a period of only seven years and whether the Queensland Constitution Act could be impliedly amended by the enactment of a statute that was simply inconsistent with it. Is the Constitution Act a fundamental law that in some sense binds the Queensland Parliament, or is the Parliament a sovereign legislature that can amend the Constitution as it wishes, simply by legislating inconsistently with it, even when that might mean undermining the independence of the judiciary? McCawley ultimately won the case and was soon thereafter appointed Chief Justice. Sadly he did not live long to enjoy it. He died three years later while rushing to catch a train at Roma Street station.

Nicholas Aroney is Professor of Constitutional Law at The University of Queensland. He is also a Fellow of the Centre for Public, International and Comparative Law, a Research Fellow of Emmanuel College at The University of Queensland, a Fellow of the Centre for Law and Religion at Emory University and an External Member of the Islam, Law and Modernity research program at Durham University. He has held visiting positions at Oxford, Cambridge, Edinburgh, Sydney, Emory, Tilburg, Panthéon-Assas and Durham universities.

Professor Aroney has published over 100 books, journal articles and book chapters in the fields of constitutional law, comparative constitutional law and legal theory. He has led several international research projects in comparative federalism, bicameralism, legal pluralism, and law & religion, and he speaks frequently at international conferences on these topics.

Professor Aroney is a former editor of The University of Queensland Law Journal (2003–05) and International Trade and Business Law Annual (1996–98), and a past secretary of the Australian Society of Legal Philosophy. He is a past member of the Governing Council and the current Queensland Convenor of the Australian Association of Constitutional Law. He is also a member of the editorial advisory board of Public Law Review and International Trade and Business Law Review.

Professor Aroney joined The University of Queensland’s TC Beirne School of Law in 1995 after working with a major national law firm and acting as a legal consultant in the field of building and construction law. Thomas William McCawley. Reproduced courtesy of State Library of Queensland The Supreme Court of Queensland Oration

The Supreme Court of Queensland Oration is an annual lecture presented by some the world’s most distinguished judges and academics. Recent speakers have included the former Lord Chief Justice of England and Wales the Right Honourable the Lord Judge, the Deputy Chief Justice of the Republic of South Africa the Honourable Dikgang Moseneke and the Chief Justice of the High Court of Australia the Honourable Susan Kiefel AC. The Supreme Court Oration is presented in conjunction with the University of New South Wales and the University of Melbourne.

Theh e Seld ene n S o ciety

The Selden Society was founded in 1887. The objectives of the Society are to encourage the study and to advance the knowledge of the history of English Law. The Society currently has 1652 members worldwide, with the Australian chapter of the Society one of its largest and most active.

Distinguished Australian jurists have served on the Council of the Society since its inception, including Sir Samuel Griffi t h, Sir Charles Lilley, Sir , Sir , Sir Garfi e ld Barwick, Sir and the Hon Dr Bruce McPherson. The Council of the Society is currently led by Sir John Baker and includes the Australian legal historian Professor Wilfrid Prest. In Queensland, the activities of the Society are led by Justice Glenn Martin.

Queensland membership currently stands at 106 and new members are most welcome. The annual subscription fee is $90 for individuals and $110 for institutions. Membership fees are used to support the Society’s publication program. Members receive the Society’s annual handbook, annual report and other publications. Members have the opportunity to attend local events which are arranged for Selden Society members and guests.

To join the Society, please visit legalheritage.sclqld.org.au/join-selden

Current Legal Issues seminar series

Launched in 2009, Current Legal Issues is a high profi le series of seminars featuring leading national and international legal scholars, practitioners and members of the judiciary.

The series is a collaboration between The University of Queensland’s TC Beirne School of Law, the Bar Association of Queensland, the Queensland University of Technology Faculty of Law and the Supreme Court Library Queensland. Justice in Focus series

Caxton Legal Centre partners with the law schools at , Queensland University of Technology and The University of Queensland to host the Justice in Focus series, a set of regular public forums that enrich public debate on topics of local and national importance. Each forum features a panel of leading thinkers representing a range of socio-legal views on the topic.

The Australian Academy of Law

The Australian Academy of Law (AAL) is a broadly based body, comprising individuals of exceptional distinction in the discipline of law who are committed to the advancement of that discipline and to justice according to law in Australia.

The AAL’s members (Fellows) are drawn from all parts of the legal community, including academia, the practising profession (including private and public sectors) and the judiciary.

Established in 2007, the Academy provides a forum for cooperation, collaboration, constructive debate and exchange of views.

The Australasian Institute of Judicial Administration (AIJA)

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programs for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems. The AIJA is not an organisation only for judicial officers, its membership includes judges, magistrates, tribunal members, court administrators, legal practitioners, academic lawyers, court librarians and others with an interest in judicial administration. Lord Atkin: from Queensland to the House of Lords marks the 150th anniversary of Lord Atkin’s birth in Brisbane. The exhibition explores his life and career, and in particular History. Knowledge. Insight. his uncompromising stand for social justice and enduring infl uence on the rule of law.

• Open to the public until 30 November 2018 • Weekdays 8.30am–4.30pm • Free entry • Supreme Court Library Queensland, Queen Elizabeth II Courts of Law, Level 12, 415 George Street, Brisbane

Further details of the exhibition are available online at sclqld.org.au/lordatkin SCLQ: SCLQ: your libraryyour library

History. Knowledge. Insight. Your library services • Comprehensive online and print legal research collections • Offi cialjudgments and sentencing information from Queensland courts and tribunals • Reference enquiries and legal research assistance • Training and support in using our collections and databases • Legal heritage collection and exhibitions • Education programs about Queensland’s legal system Further details of the exhibition are available online • Queensland Legal Updater weekly newsletter at sclqld.org.au/lordatkin

sclqld.org.au 07 3247 4373 • [email protected] BRISBANE • CAIRNS • ROCKHAMPTON • TOWNSVILLE Supreme Court Library Queensland Phone 07 3247 4373 Email [email protected] sclqld.org.au/legalheritage