BarNelry$ The JOURNAI of the NSW BAR ASSOCIATI0N Surnrner 2001/2002

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Regional and security issues

Australian law after Septemher 11

lntelligence Services Act

Enduring law

Thmpa decisions

A Constitufion for East Timor Editor’s note 2 Letters to the Editor 3 New Bar Council 6 Regional and security issues Australian law after September 11 7 Intelligence Services Act 10 Enduring law 13 Tam p a de c i s i o n s 14 A Constitution for East Tim o r 19 Recent developments Should have a Bill of Rights? 21 Recent High Court criminal cases 23 Practice matters The Bar in mediation and ADR 25 Summer 2001/2002 Royal commissions and inquiries 27 Interview Ruth McColl S.C: Reflecting on her time in office. 30 Editorial Board Justin Gleeson S.C. (Editor) Addresses An d r ew Bell Sir Maurice Byers Address: Does Chapter III of the Constitution protect James Renwick substantive rights as well as procedural rights? 34 Rena Sofron i o u Chris O’Donnell Legal retail therapy: Is forum shopping a necessary evil? 44 Chris Winslow Opinion (Bar Association) A practical way to early resolution of the head of state issue 52 Editorial Print/Production Structured settlements now available for injured plaintiffs 57 Rodenprint Bar history ‘Servants of all, yet of none’ 58 Layout Ha r t r i c k ’ s Design Office Pty Ltd The history of trial by jury in New South Wal e s 58 Bullfry Advertising Bar News now accepts Bullfry and the Sapphic Oration 59 advertisements. For more 2001 Senior Counsel 61 information, contact Chris Winslow at the August 2001 Readers Course 61 NSW Bar Association on Vale (02) 9229 1732 or e-mail cw i n s l o w @ n s w b a r. a s n . a u Robert Greenwood Q.C. 63 The Hon. Justice John Lehane 63 Cover Paul Donohoe Q.C. 63 Pi c t u r e by Mike Bowers/ Morning Herald. Book reviews 66 Sporting Bar Cricket 70 Ho c k e y 70 Ch e s s 71 Circuit food ISSN 0817-002 Epoque Brassiere 72 Views expressed by contributors to Bar News are not necessarily those of the Bar Association of NSW.

Contributions are welcome and should be addressed to the Editor, Justin Gleeson S.C., 7th Floor, Wentworth Chambers, 180 Phillip Street, Sydney, NSW 2000. DX 399 Sydney or e-mail: [email protected]

1 E D I T O R ’ S N O T E

open. This is too comfortable a cliché. Welcome to the new President There is no doubt that the door is closing on certain forms of personal injury litigation. This calls for a more concerted effort to On 9 November 2001 the new clear and confident in the values and polish up and possibly change the skills Executive of the New South Wales Bar standards which we say are relevant to the and knowledge of competent practitioners Council was elected. It comprises Wal k e r Ba r . The second step is to listen to people, than ever thought necessary before. S.C. as President, Harrison S.C. as Senior both within and outside the profession, who Gl e e s o n : Do you see it as important Vice President, Slattery Q.C. as Junior Vic e may disagree with the way in which we that the Bar maintain its role in disciplinary President, Bathurst Q.C. as Treasurer and articulate our standards and values. I do not ma t t e r s ? Gormly S.C. as Secretary. think the remedy will be quick. It will be Wal k e r : I think it is vital that the Bar This issue contains an interview by measured in years, but the process has maintain the extent of its present role under Rena Sofroniou with Ruth McColl S.C., the already started and I believe that the 2001 Part 10 of the Legal Professional Act 1987. immediate past-president. The New South Bar Council has commenced in the right It is the essence of any profession, Wales Bar is grateful for her tireless efforts wa y . particularly the legal profession, that it take on behalf of the Bar over the last two Gl e e s o n : Could you explain why the responsibility not merely to react to, but to difficult years. scheme announced for continuing positively investigate, alleged misconduct. On 9 November 2001, one day after his professional development is necessary; and It is quite wrong for a profession to claim a election, Walker S.C. spoke to Bar News what you would say to those who have noble status but to leave to others outside about his presidency of the Bar. doubts about the scheme, including those the profession the task of bringing to book Gl e e s o n : Could you tell us what are barristers, whether long standing, or those who have failed to live up to their some of the objectives of your presidency? working in heavily specialised areas, or ob l i g a t i o n s . Wal k e r : I would like the Bar Council struggling in diminishing work areas, who Gl e e s o n : What can be done to arrest to maintain its see that the scheme has no benefit for the decline of the personal injuries bar? professionalism in questions th e m ? Wal k e r : I think this is the most ‘...[we have] to start of discipline and ethics. I Wal k e r : I do believe that we need to difficult political task for the new Bar would like the Bar generally increase the substance of our conventional Council. I believe that concern about it at with a plain and to improve its description of each other as ‘our learned the Bar generally was reflected in recent professionalism with respect friends’ and to do so in a way which uses voting for Bar Councillors. Whether this is precise statement to the level of forensic skills and enhances the collegiality suggested by true or not, or however strong the influence and legal learning. If my the same expression. As the doctrinal part was, the sheer numbers of those affected at of why the sensible presidency can assist in of statutes and common law becomes more the Bar, and more importantly the injured those two areas, without copious, and new areas of law multiply, the persons, means that it is a matter which we use of litigation neglecting the continuous important intellectual structures involved in have to address. There is no quick fix. I representative and political our system of law become more difficult to believe that the political climate is very to determine roles of the Bar Association, keep under close practical contact. At the adverse. It may be that a counter-m o v e m e n t I will think it has not been a same time, the expectations upon us as against what are wrongly called reforms has entitlements to fa i l u r e . barristers, particularly but not only at the to start with a plain and precise statement Gl e e s o n : What damage appellate level, as reasonably held by of why the sensible use of litigation to compensation for has the Bar suffered from judges and clients, are that barristers will determine entitlements to compensation for bankrupt barristers; how continue to present arguments founded on personal injury is a better choice for the personal injury is a can it be remedied and how sound bases in principle. I personally community than what both major parties qu i c k l y ? believe that human nature, professional have decided. better choice Wal k e r : There has attention and the way in which the market Gl e e s o n : What are some of the other been a lot of damage of a for legal services works, are very strong matters which will inform your presidency? for the community...’ general kind. It is difficult influences towards specialisation which Wal k e r : The issues which I expect to to measure it but easy to need no further encouragement. Continuing arise at a political level go beyond New appreciate its existence. professional development is necessary so South Wales and I expect to be returning to The kind of social disapproval expressed that specialisation does not fragment the the questions raised by the so-called both privately and publicly is, ironically, a Ba r ’ s intellectual capital. There is also no national profession. This is especially so back-handed compliment, given the doubt that important parts of professional given the recent call by the Commonwealth expectations it implies people have of the life apart from legal development must now Attorney-General for more uniformity Ba r . Unfortunately, it makes the damage be the focus of explicit mutual teaching and across in discipline and more powerful to contemplate. Whether the learning. Risk management is critical as regulatory matters. Those questions do not damage can be remedied is a real question insurance premiums increase. Risk have simple answers. to ask, not merely how it can be remedied. management is also critical if we are to On another point, the seriousness and The reputation of professional groups like consider statutory limitations on liability. enthusiasm of chambers outside the City of the Bar is much more readily spoiled than Practice management is vital if we are to Sydney are palpable when you visit them, enhanced. In the eyes of some people, the avoid other forms of financial disarray for let alone when you appear against the damage is irremediable. We must try as individuals. The cliché is that as one door individual barristers from those chambers. I best we can. The first step is to be very closes at the Bar another one or two doors think if we could reproduce the collegiality

2 L E T T E R S T O T H E E D I T O R of those chambers in the Bar as a whole of offences was ‘really unpleasant,’ and that which they are such an important part, the Reality training the judges who presided over these trials, Bar and the community served by us would Dear Sir, having been hand picked, ‘would be be better off. Special thanks to Bryan Pape, Rena extraordinarily hostile in every respect Fi n a l l y , I had pupils reading with me Sofroniou and Paul Daley for their throughout the trial to counsel for the from 1985 – 1993. They and their contributions to the Winter Bar News defendants’(p.40), does not accord with my colleagues and my juniors since then have 20 0 1 . experience when I appeared during the persuaded me of two things. First, that I There used to be a form of reality 1970s and again in the late 1980s for the was lucky to come to the Bar before they training for budding lawyers. It was called accused in political trials, and for litigants did because they are so good. Second, there ‘Articles of Clerkship’. Even ‘bad’ articles in civil proceedings against cabinet is more reason to believe that the golden could, and it was not really a paradox, ministers or organs of state. age of the Bar is ahead of us, not behind us, provide very pertinent reality training. His Honour’s observation that although of course one thing I’ve learnt There has been for many years a great ‘practise at the Bar breeds independence from being involved with the Bar shortage of junior assistants. This seems to of mind and attitude’ and that Association is that there never was a true have made ordinary practice so tight that ‘s u b c o n s c i o u s l y , barristers are trained to golden age. the availability of pro bono services have think for themselves, to be sceptical and been curtailed at the level where people critical, not to owe overriding allegiance need them most - the solicitor’s office. to an institution or political party, and to Readers will note that this issue contains Articles of Clerkship may not suit resent and combat injustice’ (p.39), a series of articles with a focus on regional these times but a form of internship for law although trite, deserves emphasis. All the and security issues. students might. The first 500 hours might judicial appointments to the Supreme writes on how our legal be unpaid but the next, say, 1500 might be Court Bench during the apartheid era system should respond to the events of paid at reasonable junior rates. The were nominated by the minister of justice September 11. Nicholas Cowdrey writes on maximum number of hours per week with the approval of the Cabinet and were the role of an international criminal court (as might be limited to 15 during any chosen, with one exception in the case of opposed to war) in dealing with terrorists. se m e s t e r . UTS seems well set up to an appointment of a particular chief James Renwick writes on the legal rules, in introduce such a system. Detailed justice with an academic legal existence and being introduced, governing safeguards would be necessary. However, background, from practising members of the intelligence services in Australia. Justin it seems likely that such a system would the various Bars. Judges were, in the Young writes on the new East Tim o r strongly reinforce problem based learning main, from Afrikaans, and to lesser Constitution being drafted. Sarah Pritchard techniques used in the Law Schools. extent, English and Jewish backgrounds. writes on the issues raised by the recent The fact that only a few hundred might Supreme Court judges Boshoff, Irvine Tampa decisions. benefit does not seem to be reason to Steyn, de Wet, Henning, Auret van Au s t r a l i a ’ s recent treatment of asylum refuse them the benefits of such a system. Heerden and Thirion, provided the best seekers is a matter which has raised great The reasons originally given for abolishing evidence and argument for appointing concern among members of the community. It Articles did not seem to many of us very judges from senior and experienced is far from obvious to many that the policy of appealing. Is it time for another look at a barristers practising as individuals at an the previous government (which largely had modern system of workplace legal independent Bar. All these judges were bipartisan support) provides a solution that is tr a i n i n g ? from conservative Afrikaans backgrounds. humane, sustainable or consistent with They were members of the Bar at the time Au s t r a l i a ’ s international obligations and long David Nelson of their appointments. They were term interests. This is an issue which has not, Nationalist Party (government) supporters. to date, greatly activated the NSW Bar Notwithstanding this, and because they Association, although individual members had come from the Bar to the Bench, they may have made contributions to public South African Judiciary tried the cases of the kind in question in debate on the topic. It cries out for more which I appeared before them without fear, attention. Contributions from members on Dear Sir, favour or bias in accordance with their this or any other topics are as always greatly The Hon. Justice Ipp’s otherwise oaths of office and without any ‘allegiance welcomed. erudite, well structured, and to an institution or political party’. The We are also fortunate to be able to commendable address entitled ‘Enduring same was true of justices John Milne, reproduce the Sir Maurice Byers lecture values and change’ reproduced in the Ba r Raymond Leon and Andrew Wilson who, given, this year by McHugh J. Ne w s Winter 2001 edition, requires from time to time, tried cases of a political Fi n a l l y , there is the welcome return of qualification and response to his nature. They were English speaking and Bullfry Q.C.. Our thanks as always to Poulos observations about the behaviour, in trials doubtless voted for the Progressive (anti- Q.C. for his drawings of Bullfry Q.C. of a political nature, of the South African Supreme Court judiciary in the worst Government) Party. The 18 month long ‘SA S O ’ trial early in Justin Gleeson S.C. periods of the apartheid regime. His Honour’s statement that the 1970s is a good illustration of the point appearances before judges by barristers I am making. Instigated by the minister of for the defence in political trials involving justice to eradicate and silence the South terrorism and sabotage and related African Students Organisation (SASO) and

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the Black Consciousness movement, accused was sentenced to more than the seventeen or more young students at mandatory five year gaol term. DPP responds Black, Indian and Coloured universities As an attempt by the minister of Dear Sir, were indicted on charges under prevention justice to eradicate and silence SASO and I have read in the Winter 2001 edition of terrorism legislation with conspiracy to the Black Consciousness movement, the of Bar News the ‘Opinion’ piece at pages overthrow the South African Government support for which had been languishing 20-21 by The Hon. J A Nader RFD Q.C.. by violent or forceable means and other before the trial, it was a total failure. The In my view the article presents an lesser alternative charges. Conviction trial was attended daily by foreign inaccurate and unfair picture of the could carry the death penalty. It was a observers; it got wide national and exercise by my Office of its prosecutorial ‘showcase’ political trial. The accused were international publicity. The organisations di s c r e t i o n . a highly intelligent, articulate and vocal went from strength to strength. Several of Mr Nader has never raised concerns of group of young black activists. A cheerful the accused now, deservedly, hold high this kind with me; nor was his article lot who rather enjoyed the fact that they office in the ANC and the democratic provided to me for comment before had been charged. They were treated as government institutions set up in the post- publication. No judge has raised such arch enemies of the state. They suffered apartheid era. One of the accused, a issues with me. (My address is not a state the hardships of detention by the security handsome young Indian poet, caught the secret.) I have since discovered that police with great fortitude. They were eye during the trial of the judge’s Acting Judge Nader made some remarks taken from gaol to and from court each day associate, a young, attractive, Afrikaans in a similar vein from the Bench in April handcuffed, accompanied by a siren- lass and the daughter of another judge of 2001, but the transcript has only just wailing police escort. To suggest that they the same court. During the trial they reached me. It appears that he has not had plotted to overthrow the government of surreptitiously exchanged notes and love taken the trouble to consider the statistics the day by violent or forceable means was letters in violation of the taboos of the in my Office’s official records or those of sheer nonsense. Nevertheless, the time. I later learnt that the young lovers the Bureau of Crime Statistics and attorney-general and the who had met in such unique Research or even to request information security police earnestly set circumstances went on to marry each from me or my senior officers. ‘The purpose of out to prove this. other in the UK. Th e Pr ohibition of Mixed When Mr Nader writes of my Office he Justice Boshoff might Marriages Act would have prohibited this writes of me, because pursuant to the this letter is to have been ‘hand picked’ to in South Africa! Di r ector of Public Prosecutions Act 1986 try the case. If he was, he In fairness, it must be said that there the decision to prosecute or to discontinue demonstrate from turned out to be a bitter were reports of South African judges, two a prosecution resides with me and I disappointment to those in particular, one English, one Afrikaans delegate that power to nominated officers the South African who chose him. He was speaking, both from the Transvaal Bench, in particular circumstances. I am an avid reported to be a friend of, who behaved in political cases in the defender of the just rule of law and my apartheid and golf-playing partner of, manner described in His Honour’s officers and I are guided in our decision the then prime minister, address. They were, fortunately, the making by the law, the evidence and my experience the John Vor s t e r . The judge exception not the rule. Prosecution Policy and Guidelines (a made short shrift of the The purpose of this letter is to document that is publicly and freely case for the at t o r n e y - g e n e r a l ’ s attempt demonstrate from the South African available). We disregard entirely any to salvage his hundred or apartheid experience the case for the clamour in the media and the appointment of more page defective appointment of judges from an manoeuvring of politicians, especially indictment on a defence independent Bar at which barristers ‘vocal but uninformed criticism’. We are judges from an motion to quash it, with the practise individually. Those who advocate routinely required to withstand and result that several of the to the contrary should not be listened to. It sometimes to put aside even trenchant independent Bar.’ accused were released. He is up to the politicians to ensure that the cr i t i c i s m . allowed a defence remuneration and entitlements of judges The facts should be summarised application for the are sufficient to elevate to the Bench the br i e f l y . discharge of some accused at the close of Ba r ’ s most able and experienced members. For some ten years or more we have the prosecution case. His decision was Financial sacrifice, as sometimes occurs, been presented with increasing numbers discretionary and the application was should not be a prerequisite to a judicial of allegations of child sexual assault. This vehemently opposed by the attorney- ap p o i n t m e n t . is not confined to New South Wales – it is ge n e r a l . a national and international phenomenon. It seemed to me that the judge had Roy Allaway Q.C. There is reason to believe that the seen through the minister’s political increase is not due to increased offending objectives in indicting the accused on (which has always been present), but is capital charges. In the result, he acquitted due to increased reporting. We know that all the accused on the main conspiracy there is substance in these reports – they charge. On their convictions for making are not the result of some mass hysteria in public statements likely to further a section of the population. We also know feelings of hostility between race groups that some of the reports are false. at public rallies and in publications, no Such offences, by their very nature,

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are often committed, reported and the case in April 2001 in which he made prospects of conviction, and the publicity prosecuted in the circumstances described public remarks, the charges were not given to unsubstantiated allegations of by Mr Nader under the heading ‘The withdrawn from the jury at the end of the official protection of paedophiles. I resent general circumstances’. Is he suggesting Crown case, nor was a ‘Prasad’ direction and reject that suggestion. There has that in all (or even most) such cases I given. The trial proceeded its full length never been such a policy decision. should take the place of the jury and and the jury’s verdict was taken.) Judges Prosecution decisions have not been and ad m i n i s t r a t i v e l y , peremptorily determine are required to give warnings to juries are not in any way influenced by publicity the proceedings – despite there having about acting upon various categories of of any kind. been committals for trial (which, in evidence in all these cases, but juries still My senior lawyers, Crown Prosecutors, footnote 2, the author does not criticise: for convict. the Deputy Directors and I (all but the reasons that, at least to me, are far from There are well established procedures senior lawyers being members of the NSW ‘obvious’)? in my Office for dealing with victims, in Bar Association) do not conduct ourselves Many cases in this category are in fact accordance with the Charter of Vic t i m s in the way suggested by Mr Nader and we discontinued by me and my delegates in Rights and other instruments and are offended by what he has written. the exercise of judgment in accordance guidelines in place (and too numerous to with the Prosecution Policy and describe here). Despite our best Nicholas Cowdery Q.C. Guidelines. The majority of the cases that endeavours, some victims do become Director of Public Prosecutions proceed are resolved by pleas of guilty and emotionally distressed, whether or not never get to juries. Presumably (according there is an acquittal and regardless of their to Mr Nader) the finding of bills of preparation for the trial. That experience indictment in those cases has been an is not confined to child sexual assault abuse of process as well. cases. My officers also suffer in these The identification of meaningful circumstances. Throughout the statistics about criminal proceedings, my officers provide proceedings is a difficult explanation and support in an appropriate and complex exercise. fashion and we have specialist Wit n e s s ‘We disregard Each case is unique and Assistance Service officers on hand. (Why there are many variables to does Mr Nader assume that such measures entirely any be taken into account, are not taken?) making comparisons My Prosecution Policy 5 lays down the clamour in the difficult. It is simplistic tests to be applied when deciding whether and may be misleading to or not a prosecution will be commenced or media and say that ‘Most of these continued. My officers and I follow that trials result in acquittals by Po l i c y . The fundamental question is the manoeuvring juries’. In fact, the whether or not there is a reasonable conviction rate in child prospect of conviction by a reasonable jury of politicians, sexual assault (CSA) cases properly instructed as to the law. That that proceed to verdict in question is addressed in every case we especially ‘vocal NSW is slightly above the prosecute, based on the available general conviction rate for admissible evidence and the law. but uninformed all trials. By way of Na t u r a l l y , in every case the answer example, for the year 1999- requires the making of a judgment on the criticism’. 2000 the conviction rate in basis of what is known at the time and that all trials that proceeded to judgment requires, amongst other things, verdict was 43.7 per cent that the admissible evidence available be (consistently with other considered in the light of the probable years). The rate of conviction in CSA trials course of the trial and the warnings that that year was six per cent higher than in will be given by the judge. non-CSA trials. Mr Nader’s final attack on my Some appeals from convictions are independence cannot pass unchallenged. I successful – usually because the judges am constantly subject to ‘vocal but have been found to have erred in the uninformed criticism’ from many quarters admission of evidence or in their (n o w , apparently, also from Mr Nader); but directions to juries. (The author is in my nearly seven years in office that has included in such statistics, on at least one never influenced my decisions one whit. occasion for not having sufficiently warned He says that he ‘raise[s] for consideration the jury of the dangers of convicting. And whether there is any connection between’ I am not aware of any case in which what he suggests may be a policy decision Acting Judge Nader has taken it upon to prosecute almost every case (a ‘flood’) of himself to stay any such proceedings. In child sexual assault, regardless of the

5 N E W B A R C O U N C I L

Bar Council 2002

Bar Council 2002: Back row, left to right: Dominic Too m e y , Michael McHugh, Michael Elkaim, Justin Gleeson S.C., Alison Stenmark, Hayden Kelly, Bernie Coles Q.C., Stuart Torrington, Larry King S.C., John Fernon Front row, left to right: Kate Traill, Anna Katzmann S.C., Philip Selth, Tom Bathurst Q.C., Ian Harrison S.C., Bret Walker S.C., Michael Slattery Q.C., Jeremy Gormly S.C., Rena Sofroniou, Chrissa Loukas.

Office holders

Office holders (left to right): Philip Selth (Executive Director), Tom Bathurst Q.C. (Treasurer), Ian Harrison S.C. (Senior Vice President), Bret Walker S.C. (President), Michael Slattery Q.C. (Junior Vice President), Jeremy Gormly S.C. (Secretary).

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new age when the innocence of our past liberties had disappeared in the wreckage of terror and fear. But need it be so? How should Australian law we react to this terror? What, if anything, do lawyers have to add to the debates on these questions?

A century of terrorism after September 11 The last century - during which our Constitution came into force and matured - was a century of terrorism. It was not always The Hon Justice Michael Kirby AC CMG called that. Yet from the early days - from the anarchists and communists of the turn of 1901, that was the reality. * Adapted from the opening plenary address delivered to the The Great War began with an act of terrorism in 1914. Legal Convention, Canberra, 12 October 2001. The full reality struck home within the British Isles in the Easter Rebellion text with footnotes appears in the Australian Bar Review. in Dublin in 1916. Not a year of the century was free from terrorism. Mahatma Gandhi deployed a very skillful combination On the morning of September 11, 2001 four civilian aircraft of peaceful resistance, sporadic violence and political were hijacked in the United States of America. Australians showmanship ultimately to lead India, the jewel in the Crown, out watching late night television were suddenly confronted with of British dominion. Mohammed Ali Jinnah did the same with terrifying events. Two of the hijacked planes were shown flying Pakistan. Nelson Mandela carried forward, over many decades directly into the twin towers of the World Trade Center in New (most of them in prison on Robben Island) his leadership of the York. Another, that had left Reagan National Airport in African National Congress, modelled on that of India. For decades Washington, crashed into a section of the Pentagon. The fourth the ANC was called a ‘terrorist’ organisation. What did these three plunged into a field in Pittsburgh. leaders have in common? All were lawyers. All were gifted The pilot of the fourth aircraft, who had contacted his family co m m u n i c a t o r s . on his mobile phone, had learnt of the fate of the Other ‘terrorist’ movements were led by people who refined other three. He indicated that he and some their skills on the battlefield - Mao Tse-tung, General Giap, Ho ‘Not a year passengers, after saying quietly the Lord’s Prayer, Chi Minh, Jomo Kenyatta, Colonel Boumedienne, Colonel Nasser. were going to try to regain control over their All around the world, as the old European empires crumbled, of the century doomed aircraft. Other passengers telephoned their terrorists struck at their quarry. They did so against the autocratic loved ones to ask what they should do or to say Soviet and Nazi empires and were repaid with fearsome reprisals. was free goodbye. So did unfortunate victims in the They did so against the relatively benign British empire in buildings that were the targets of the hijacked Palestine, Kenya, Malaya, Aden, Cyprus and elsewhere. They from terrorism’ planes, soon a crumpled mass of steel and furnace- attacked the faded glories of France in Algeria and Vietnam. The hot debris. new empires that took the place of the old were themselves In the aftermath of these events, that are etched attacked, as in East Tim o r , West Irian, Chechnya, Kosovo. on the memories of everyone who lived through Terrorists mounted their separatist campaigns in them, the sequels are just as frightening. The deaths of the brave and Quebec. Our own region has not been spared. The successive New York firemen who rushed into the twin towers even as they coups in Fiji involved unconstitutional and violent means. were about to collapse. The devastating blow to the global Bougainville, the Solomons and East Timor were uncomfortably ec o n o m y . The partial shrinkage of the world civil aviation market, cl o s e . as passengers proved too frightened to travel. The ‘global alliance Back in 1975, it was within living memory of those gathering against terrorism’ that Australia quickly joined. Once again, our at the last Australian Legal Convention in Canberra to recall the service men and women were seen farewelling relatives as they Cyprus campaign of General Grivas. He was a commander of no sailed off to war; but this time against a mainly invisible enemy. more than 250 EOKA terrorists with extreme nationalist The scare caused by the reports of biological agents, especially sympathies. Those few ultimately drove 28,000 British troops from anthrax, thought to be the new weapon of terror. The fear that parts the island by destroying their political capability to wage war. The of the decaying nuclear arsenal of the old Soviet Union would fall same was the fate of the French in Algeria. The same has not into the wrong hands. proved true of Northern Ireland. Yet whereas the ‘co l o n s ’ Su d d e n l y , the world, in its millennial year, seemed a much constituted only 2 per cent of the population in Algeria, the more dangerous place, less full of hope. A year that had begun in overwhelming majority of the Muslims in that country had a Australia with fireworks over Sydney Harbour in the warm common interest in forcing their increasingly desperate and afterglow of the Olympics, and in which Australians celebrated the violent French rulers to leave. Eventually they succeeded. In centenary of their Constitution, now seemed a time of pessimism Northern Ireland, there always were, and still are, substantial and danger. numbers in both of the divided communities who found continuing The sat as scheduled on the day after connection with the United Kingdom acceptable and terrorism the attack on America. The case was called. The argument ensued un a c c e p t a b l e . as if nothing had changed. In courtrooms and lawyers’ offices Why did the Red Brigades in Italy and the Baader-M e i n h o f throughout the nation the business of the law went on. It still does. faction in Germany fail to undermine liberal democracies when In a sense this demonstrates once again the strength and other terrorist groups succeed? Are there any lessons for the law in continuity of our institutions. the way different societies have tackled terrorism? Are there In the United States, Australia and elsewhere new laws were lessons for us in Australia as we properly address our own security proposed to meet the threats of terrorism. It was as if we were in a after September 11?

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The story of Uruguay is particularly instructive. Before 1974, constitutional democracy, Opposition parties are supposed to do, it was one of the few longstanding, stable constitutional do all the time and will be doing in the current Australian general democracies of South America. It had adopted a new and stronger election with rare abandon. constitution in 1967. This document incorporated rule of law and So if we ask why did terrorism succeed in Cyprus and Algeria human rights principles that were impeccable. But then Uruguay but had only limited success in Ulster and Quebec and failed suffered a serious economic downturn that threatened its welfare abysmally in Italy, America (and to the extent that it has occurred) laws. On top of this it had to grapple with the challenge of a small Australia, the answers are complex. But they can be found. The determined band of terrorists known as the Tup a m a ro s . most important is that those societies that have succeeded best The Tup a m a ro s resorted to indiscriminate acts of violence and against terrorism have refused to play into the terrorists’ hands. cruelty that shook Uruguayan society. The citizens, and especially They have rejected the terrorist paradigm. As the Rand the military, began to look around them. Coups had occurred in Co r p o r a t i o n ’ s analyst, Brian Jenkins has pointed out ‘terrorists Brazil in 1964, in the Dominican Republic in 1965, in Chile in want a lot of people watching and a lot of people listening and not 1973. In Uruguay, in 1974, the military, police and their a lot of people dead’. They want publicity, the last thing that most supporters struck. perpetrators of non-political violence seek. They form a symbiotic After the coup, one by one, the constitutional guarantees were relationship with media. They create media events. Kidnapping, dismantled. More than 5,000 civilians in a country of fewer than hijacking and suicide bombs introduce elements of high tension, three million inhabitants were incarcerated for very long prison as does indiscriminate brutality. terms for having committed political offences. Other detainees Free societies must, do and will cover such events in their were kept incommunicado. Habeas corpus was gradually media - which is itself now particularly adapted to vivid images withdrawn. Immunity was granted to officials against an ever and to sites of death and suffering. But keeping such visual horror broader range of illegal acts. The country that had been known as in perspective is an important clue to defeating terrorists at their the ‘Switzerland of Latin America’4 fell into a period of escalating game. So is keeping one’s sense of balance and priority. So is lawlessness. At first, the strong tactics had much public support analysing the reasons, that may lie behind some the acts of terror, out of fear of the Tup a m a ro s . But increasingly to see if some of them reflect grievances that need to be addressed. unaccountable power bred oppression. True, the According to Justice Hope’s review, between 1968 and 1977 ‘...those societies Tup a m a ro s were defeated. But it took fourteen 1652 deaths could be attributed to international terrorism. Such years and enormous struggle to return Uruguay to losses, appalling though they are (and worse still when they are that have constitutionalism. Even then, there had to be multiplied), pale into insignificance beside other global causes of amnesties for the military, police and other death and suffering. The 20 million dead from HIV/AIDS. Dead to succeeded best officials. And a deep scar was left on the body the general indifference of humanity. The millions dying, mostly in po l i t i c . developing countries, from nicotine addiction and its against terrorism Australia has had nothing like the threats of consequences. From malaria. From lack of water and food. terrorism in Cyprus, Algeria, Northern Ireland or Millions dead in state-run wars. Millions in refugee camps. have refused to Ur u g u a y . Naturally, everyone wants to keep it that Anonymous dead and living. Few vivid images. Boring reality. No wa y . It is true that at the Commonwealth Heads of media interest. No news. Relatively little political appeal. Vic t i m s play into the Government Conference in Sydney in February of compassion fatigue. 1978 a bomb exploded and three people were The countries that have done best against terrorism are those terrorists’ hands.’ killed. This led to what one analyst called ‘[a] that have kept their priorities, retained a sense of proportion, synthetic panic which gripped the government (and questioned and addressed the causes of terrorism, and adhered was exploited by the media)’. Leading officials steadfastly to constitutionalism and the rule of law. ‘accepted without question the assumption that there was a real Internal security and present [terrorist] threat in Australia’. Exactly fifty years ago, the Australian Constitution received That bombing led to inquiries and legislation. Justice Hope, what was probably its most severe test in peacetime. The enemy the Royal Commissioner, found that there was little evidence that then was viewed as a kind of global terrorist and widely hated. His Au s t r a l i a ’ s security organisations had the qualities of mind ideas were subversive, methods threatening and goals alarming. I necessary for what he called the ‘skilled and subtle task’ of refer to the communists. Of course, the communists did not fly intelligence assessment. This was unsurprising. Earlier inquiries commercial aircraft into targets in crowded cities. But they did into the special branch files of police in New South Wales and indoctrinate their young. They had many fanatical adherents. They South Australia - the latter conducted by Justice Michael White - divided the world. They were sometimes ruthless and murderous. found ludicrous biases in the identification of the supposed threats They developed nuclear and biological weapons. They had a to security. According to Justice White, all State Labor leaders global network. They opposed our form of society. automatically became the subjects of index cards as suspected Out of fear, governments around the world rushed to introduce ‘subversives’. As he put it, ‘Like the Maginot Line all defences legislation to increase powers of surveillance, restrictions on against anticipated subversion, real or imagined, were built on one democracy and deprivations of civil rights. In South Africa, the side’. This reflected, in the antipodes, the preoccupations of the Su p p r ession of Communism Act 1950 became, before long, the Federal Bureau of Investigation in the United States where the mainstay of the deteriorating legal regime that underpinned ratio of files on left versus right-wing organisations was a hundred apartheid and brought forth Nelson Mandela and the ANC to one. The Police Commissioner of South Australia defined ‘terrorists’. In Malaya, Singapore and elsewhere, the colonial subversion as ‘… a deliberate attempt to weaken public authorities introduced the Internal Security Acts which is what the confidence in the government’. Which is exactly what, in a South African Act was later called. Sadly, many of those statutes

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remain in place, post-independence, to oppress dissident opinion. 22, 1951 refused. When the issues were explained, they rejected In the United States of America, the Smith Act was passed by the enlargement of federal powers. History accepts the wisdom of the Congress to permit the criminal prosecution of members of the our response in Australia and the error of the over-reaction of the Communist Party for teaching and advocating the overthrow and United States. destruction of the government. The law was challenged in the Keeping proportion. Adhering to the ways of democracy. courts of the United States. The petitioners invoked the First Upholding constitutionalism and the rule of law. Defending, even Amendment guarantees of freedom of expression and assembly. under assault, and even for the feared and hated, the legal rights But in 1950 in De n n i s v United States, the Supreme Court, by of suspects. These are the ways to maintain the support and ma j o r i t y , upheld the Smith Act. They held there was a ‘sufficient confidence of the people over the long haul. We should not forget danger to warrant the application of the statute … on the merits’. these lessons. In the United States, even in dark times, the lessons Dissenting, Justice Black drew the line between overt acts of De n n i s and of Ko re m a t s u need to be remembered. Every erosion designed to overthrow the government and punishing what people of liberty must be thoroughly justified. Sometimes it is wise to thought and wrote and said. Those things, he held, were beyond pause before acting precipitately. If emergency powers are clearly the power of Congress. Also dissenting, Justice Douglas required, it may be appropriate to subject them to a sunset clause acknowledged the ‘popular appeal’ of the legislation. But he – so that they expire when the clear and present danger passes. pointed out that the Communist Party was of little consequence in Always it is wise to keep our sense of reality and to remember our Am e r i c a : civic traditions, as the High Court Justices did in the Co m m u n i s t Communists in this country have never made a respectable or Party Case of 1951. serious showing in any election. I would doubt that there is a Denoument village, let alone a city or county or State which the communists could carry. Communism in the world scene is no bogeyman; but When the United States Supreme Court assembled on October communism as a political faction or party in this country plainly 1st, for the first time since September 11, 2001, the Chief Justice is. Communism has been so thoroughly exposed in this country led everyone in the courtroom in a moment of silence in that it has been crippled as a political force. Free remembrance of the disasters in Virginia, New York and speech has destroyed it as an effective political party. Pennsylvania. ‘Our hearts go out to the families of the killed and History accepts A few months after De n n i s was decided, a injured’, he said. Sitting at the Bar table was the Solicitor-G e n e r a l similar challenge came before the High Court of of the United States (sometimes called the ‘tenth Justice’) whose the wisdom of our Australia. There was no First Amendment. There wife, Barbara Olsen, was a passenger in the plane that crashed was no established jurisprudence on guaranteed into the Pentagon. response in free expression and assembly. Most of the judges Our hearts too go out to all the American victims. To every had had no political experience. Most of them were victim of terror in every land. And to those who suffer needlessly Australia and commercial lawyers whose professional lives had in every way. But as lawyers, we can join in the words of Justice been spent wearing black robes and a strange head Sandra Day O’Connor of the United States court. Diverting from a the error of the adornment. An Australian contingent was fighting function to launch a new law school building in New York, she communists in Korea. The federal government had visited the ruins of the World Trade Centre and said: over-reaction of a mandate for its law. Most Australians saw We wish it were not necessary. We wish we could put the clock communists as the bogey-man - indeed their back. But to preserve liberty, we must preserve the rule of law. the United States. doctrine of world revolution and the dictatorship of In the course of the century of the Australian Commonwealth, proletariat was widely viewed as a kind of political we, the lawyers of Australia, have made many errors. We have te r r o r i s m . sometimes laughed at and belittled citizens who, appearing for Chief justice Latham, like his counterpart in the United themselves, fumbled and could not reach justice. We have States, upheld the validity of the Australian law. He quoted sometimes gone along with unjust laws and procedures. We have Cr o m w e l l ’ s warning: ‘Being comes before well-being’. He said that occasionally been instruments of discrimination and it is still there his opinion would be the same if the Parliament had legislated in our law books. We have not done enough for law reform or legal against Nazism or Fascism. But the rest of the Court rejected the aid. We have not cared enough for justice. We have been just too la w . Justice Dixon pointed out that: busy to repair the wrongs that we saw. Yet at critical moments in History, and not only ancient history, shows that in countries our nation’s story, lawyers have upheld the best values of our where democratic institutions have been unconstitutionally pluralist democracy. In the future, we must do so more superseded, it has been done not seldom by those holding the wh o l e h e a r t e d l y . To preserve liberty, we must preserve the rule of executive power … [T]he power to legislate for the protection of la w . The rule of law is the alternative model to the rule of terror, an existing form of government ought not to be … only to assist the rule of money and the rule of brute power. That is our those holding power to resist or suppress obstruction or justification as a profession. It is our continuing challenge after opposition or attempts to displace them in the form of government September 11, 2001. they defend. So far as Dixon was concerned it was for the courts to ensure that suppression of freedoms could only be done within the law. The Constitution afforded ample powers to deal with overt acts of subversion. Responding to a hated political idea and propagation of that idea was not enough for validity of the law. Given the chance to vote on the proposal to change the Constitution, the people of Australia, fifty years ago on September

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AS I O ’ s investigations into politically motivated violence. The legislation would Intelligence Services Act 2001 also authorise the State or federal police, acting in conjunction with ASIO, to arrest a By James Renwick person and bring that person before the prescribed authority. Such action would 4 James Renwick analyses recent steadfastly to constitutionalism’, the topic only be authorised where the magistrate or legislative measures aimed at overseeing becomes harder when one turns to the tribunal member was satisfied it was Au s t r a l i a ’ s intelligence services. de t a i l . necessary in order to protect the public 7 The shocking events of 11 September Furthermore, as much of the practice in from politically motivated violence. 2001 in New York City and Washington DC this area remains unknown, even to The Attorney notes that ‘these are have had many consequences, including for Parliament, national security requires a significant new powers, to deal with Australia. From an international law measure of trust in the executive significant new threats’. He also says that perspective, the events were treated by government and its national security ‘stringent safeguards will be introduced in Australia and the United States of America agencies. As trust is sparingly given and relation to the exercise of these powers.’8 as an ‘armed attack’ upon the latter within easily lost in this area, careful consideration While it could be argued – and no doubt the meaning of the ANZUS Tre a t y .1 needs to be given to what is known, for will be -that some these proposed powers Australia consequently acted on a request example, the legal basis, functions and would be no greater than those conferred on by the USA to meet ‘the common danger’2 powers, and accountability mechanisms for the NSW Crime Commission9 or the by committing over 1500 members of our national security agencies. National Crime Authority,10 the terms of any Na v y , Army and Airforce to an This article first notes the significant Bill will be awaited with interest. In unconventional and difficult military proposal to give the Australian Security pa r t i c u l a r , it will be important to discover operation whose duration Intelligence Organisation (ASIO) new whether any Bill proposes that the person cannot be foreseen. powers. The article also examines the terms questioned is to be held incommunicado, of the Intelligence Services Act 2001 (C t h ) ‘National security The effects on domestic even from his or her lawyer. law may also be serious. which came into force on 1 October 2001, The Intelligence Services Act is located at a Ce r t a i n l y , the imperative to and the components of the Australian The Intelligence Services Act 2001 (C t h ) detect and prevent future intelligence community (‘AIC’). (‘the IS Act’) and the Intelligence Services point where law, terrorist acts has led to Proposed new powers for ASIO (Consequential Amendments) Act 2001 (C t h ) many countries, including On 2 October 2001, the Commonwealth politics, came into force on 1 October 2001. In Australia, suggesting law 5 Attorney-General announced that the su m m a r y , the IS Act: re f o r m 3. It seems likely that international Federal Government would: • puts the Australian Secret such law reform proposals • supplement the existing warranting Intelligence Service (ASIS) on a will awaken interest in an relations, regime under which the Australian statutory footing for the first time, almost forgotten area of Security Intelligence Organisation an d domestic law, namely, the defence and, on exercises special powers; topic of national security • sets out the functions of ASIS and the • create a new general offence of la w . Defence Signals Directorate (DSD); occasion, terrorism and an offence related to National security is • provides immunities for officers of preparing for, or planning, terrorist located at a point where law, both organisations in respect of the individual acts; and politics, international proper conduct of their functions, • amend the Pr oceeds of Crime Act freedoms relations, defence and, on • provides rules to protect the privacy occasion, individual 19 8 7 to allow terrorist property to be 6 of Australian citizens, intersect.’ freedoms intersect and frozen and seized. • creates a parliamentary joint where, therefore, difficult As to the first matter, is proposed that: committee for ASIS and ASIO which and sometimes controversial the Director-General of Security will be will examine expenditure and legal and policy choices must be made by able to seek a warrant from a federal administration of each agency, parliaments, judges and policy-makers to magistrate, or a legal member of the protect the nation while preserving what is Administrative Appeals Tribunal, that • protects the identity of ASIS staff in precious in its democratic life and that of its would require a person to appear before a the same manner as ASIO officers, ci t i z e n s . prescribed authority (such as a federal an d While one can readily agree with magistrate or a legal member of the • extends the oversight of each agency Administrative Appeals Tribunal), to Justice Kirby of the High Court of Australia by the Inspector-General of provide information or to produce when he recently wrote that: ‘the countries Intelligence and Security (IGIS). documents or things. These reforms would that have done best against terrorism are allow ASIO, before a prescribed authority, those that have kept their cool, retained a to question people not themselves sense of proportion, questioned and suspected of terrorist activity, but who may addressed the causes, and adhered have information that may be relevant to

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The Australian intelligence community ASIO officers and agents other than the director- The AIC includes : general have the protection of a criminal sanction if their identities are revealed publicly. There is a parliamentary • AS I S joint committee which examines its administrations or • AS I O finances although, unlike its US counterparts, not its • the Office of National Assessments (ONA) op e r a t i o n s . • DS D O N A • The Defence Intelligence Organisation (DIO) The Office of National Assessments is established by the Act of that name in 1977. It is an independent body • The Defence Imagery and Geospatial Organisation within the prime minister’s portfolio with a function of (D I G O ) assembling, collating and reporting on information • the Inspector-General of Intelligence and Security relating to international matters that are of political, (I G I S ) strategic or economic significance to Australia. It has an A S I S important role of tasking intelligence activities and ASIS was established by, and was, until passage of assessing what is produced by the ONA or by the the IS Act, maintained under the authority of, s61 of the committees and processes it chairs and directs. Constitution. It was established in 1952. Its functions D S D embrace ‘The collection and distribution of secret The DSD, whose functions are also set out in foreign intelligence, associated counter-i n t e l l i g e n c e the IS Act, exists to obtain intelligence about the activities, and liaison with similar organisations’.1 1 capabilities, intentions or activities or people or ASIS has no para-military functions and does not organisations outside Australia from foreign signals employ force or lethal means in carrying out its tasks. intelligence. It also ensures sensitive Australian ASIS is responsible to the Parliament through the electronic information systems are not susceptible minister for foreign affairs and, under the directive to unauthorised access, compromise or disruption. issued by the minister to the director-general of ASIS, it D I O accepts guidance on targets and priorities issued from time to time by the Security Committee of Cabinet. The DIO provides intelligence to inform defence and government policy planning and to support the ASIS’ operations were examined in 1995 by the Australian Defence Force. It assesses rather than Commission of Inquiry into the Australian Secret collects intelligence. Intelligence Service (The Samuels Report). The Samuels Report concluded that it was appropriate for ASIS to be D I G O put on a legislative footing. One of the purposes of the IS The Defence Imagery and Geospatial Organisation Act was to achieve that aim. collects and analyses images of foreign and domestic A S I O subjects for various Commonwealth agencies and for the Australian Defence Force. ASIO is Australia’s domestic security intelligence organisation with responsibility for protecting Australia I G I S and its inhabitants from espionage, sabotage, political Overseeing all of these organisations, which are not motivated violence, the promotion of communal subject to oversight for example by the Commonwealth violence, attacks on the Australian defence system or ombudsman, is the inspector-general of intelligence and attacks of foreign interference. It is expressly not se c u r i t y , set up by the Act of that name in 1986. He concerned with lawful dissent. oversees and reviews the activities of the six agencies While originally established by executive order in just mentioned. He may undertake an inquiry as a result 1949, it was continued in existence by the Australian of a reference from a responsible minister or may Security Intelligence Organisation Acts of 1956 and independently initiate inquiries provided the 1979: the latter Act is discussed for example by the complainant is an Australian citizen or resident, or the High Court in Ch u r ch of Scientology Inc. v Woo d w a r d complaint or matter of concern involves a possible (1981) 154 CLR 25. breach of Australian law.

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The IS Act minister (the foreign affairs minister for ASIS, certificate in writing certifying any fact Section 6 of the IS Act sets out the the defence minister for DSD) to issue a relevant to the question of whether an functions of ASIS as, relevantly written direction specifying when prior act was done in the proper performance 1) The functions of ASIS are: authorisation under s9 must be obtained from of a function of an agency. a) to obtain, in accordance with the the minister. When that authorisation is 2C In any proceedings, a certificate Go v e r n m e n t ’ s requirements, sought, in every case the minister is required given under subsection (2B) is prima intelligence about the capabilities, to be satisfied that the activities would be facie evidence of the facts certified... necessary for the proper performance of a intentions or activities of people or The rationale for this provision was function of the agency concerned, that there organisations outside Australia; and described in the explanatory memorandum of are satisfactory arrangements in place to b) to communicate, in accordance with the Bill as: ensure that nothing will be done beyond what the Government’s requirements, such is necessary for that proper performance and The purpose of the clause is to provide intelligence; and that there are satisfactory arrangements to immunity in a limited range of circumstances [principally conspiracy laws] directly related c) to conduct counter-i n t e l l i g e n c e ensure the nature and consequences of the activities; and to the proper performance by the agencies of acts done in reliance on the authorisation will their function. It does not provide a blanket e) to liaise with intelligence or security be reasonable. immunity from Australian laws for all acts of services, or other authorities, of other Section 11 sets out limits on what the the agencies. This limited immunity is countries; and agencies can do. Section 11(1) provides ‘the necessary as certain Australian law, including f) to undertake such other activities as functions of the agencies are to be performed State and Territory law, could impose liability the responsible minister directs only in the interest of Australia’s national on the agencies. relating to the capabilities, intentions se c u r i t y , Australia’s foreign relations or There are some analogies with this or activities of people or organisations Au s t r a l i a ’ s national economic well-being and provision. So, the Crimes Act (Cth) provides outside Australia. only to the extent that those matters are affected for ‘controlled operations’ giving federal by the capabilities, intentions or activities of By s6(4) it is provided that in performing law enforcement officers immunity from people or organisations outside Australia.’ its functions ‘ASIS must not plan for, or State drug possession offences, when It is expressly provided that the functions 1 2 undertake, paramilitary activities or activities certain pre-conditions are met. F u r t h e r, do not include police functions or otherwise against the person or the use of weapons.’ the provision finds its counterpart in enforcing the law, although that does nor Section 7 sets out the functions of DSD as relation to the Cyber Crime Act 2001 ( C t h ) prevent passing on intelligence otherwise fo l l o w s : division 476.5 which deals with computer properly obtained it is relevant to serious 7) The functions of DSD are: related acts for example covertly crime, to the appropriate law enforcement intercepting e-mails or reading the hard a) to obtain intelligence about the au t h o r i t y . drive of a computer.1 3 capabilities, intentions or activities of One of the most important provisions is The Joint Select Committee on the people or organisations outside s14. It states: Intelligence Services, which was the Australia in the form of 14 Liability for certain acts parliamentary committee considering the electromagnetic energy, whether 1) A staff member or agent of an agency is IS Bill, regarded s14 as the most guided or unguided or both, or in the not subject to any civil or criminal controversial provision in the Bill. They form of electrical, magnetic or acoustic liability for any act done outside were obviously concerned about the en e r g y , for the purposes of meeting the Australia if the act is done in the proper potential abuse of s14 and they requirements of the Government, and performance of a function of the agency. successfully recommended both in particular the requirements of the 2) A person is not subject to any civil or amendments to clause 14 to ensure that Defence Force, for such intelligence; criminal liability for any act done inside immunity can only be granted where an act an d Australia if: is done in the proper performance of a b) to communicate, in accordance with a) the act is preparatory to, in support function of the agency; and that protocols the Government’s requirements, such of, or otherwise directly connected with, for the operation of both clause 14 and its intelligence; and overseas activities of the agency Cyber Crime Bill counterpart be written c) to provide material, advice and other concerned; and and approved by the relevant ministers, assistance to Commonwealth and State and the attorney-general and then given to b) the act taken together with an act, authorities on matters relating to the I G I S . event, circumstance or result that took security and integrity of information G e n e r a l l y, the Joint Select Committee place, or was intended to take place, that is processed, stored or approved of the Bill for the IS Act, thus outside Australia, could amount to an communicated by electronic or similar continuing the bi-partisan approach by the offence; but in the absence of that other means; and major political parties in the national act, event, circumstance or result, security area. d) to provide assistance to Commonwealth would not amount to an offence; and and State authorities in relation to The IS Act provides for the c) the act is done in the proper cryptography and communications establishment and operation of a performance of a function of the agency. te c h n o l o g i e s . Parliamentary Joint Committee on ASIO 2A .. . and ASIS (PJCAA). The PJCAA’s main Sections eight and nine of the Act set out function is to review the administration important and desirable accountability 2B The Inspector-General of and expenditure of ASIO and ASIS.1 4 T h e mechanisms. First s8 requires the responsible Intelligence and Security may give a

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functions of the PJCAA do not include The AIC together with the Australian England to describe the Government of France scrutiny of the agencies’ activities or Defence Force and the Australian federal, unleashing ‘the Terror’ on its citizens..’ operations: that is a matter for IGIS. In this State and Territory police, constitute 4 Law Council Of Australia; 32nd Australian Legal Convention Canberra, 11 October 2001; regard, the position differs from that A u s t r a l i a ’s defences against terrorism. The Australian Law - After September 11, 2001; pertaining in the United States. events of 11 September will continue to h t t p : / / w w w. h c o u r t . g o v. a u / s p e e c h e s / k i r b y j / k i r b y j _ a f t e r 1 1 s e p 0 1 . h t m It is perhaps significant that when the provoke debate as to how these 5 Press release at see also Bill for the IS Act was being debated, institutions, and the laws they operate h t t p : / / w w w. a g . g o v. a u / m i n i s t e r s / a t t o r n e y - which was well before 11 September, its under or administer, might be changed to g e n e r a l / t r a n s c r i p t s / a s i o p o w e r s . h t m l contents provoked little controversy. While better protect the nation and its citizens. 6 I b i d . this probably reflects the bi-partisan 7 I b i d . approach on this topic of the major 8 I b i d . political parties, it also suggests that the IS 1 Security Treaty between Australia, New Zealand and the United States of America [ANZUS], 9 NSW Crime Commission Act (NSW) s16. Act establishes an appropriate framework made at San Francisco, 1 September 1951, 1 0 NCA Act s28. Australian Treaty Series 1952 No. 2. for ASIS and DSD. 1 1 Samuels Report pp. 1-2. In the opinion of the author, the IS Act 2 Ibid., Article IV. 1 2 Part 1AB. properly implements key recommendations 3 The term ‘terrorism’ was apparently first used in 1 3 Senate Legal and Constitutional Legislation of the Samuels Inquiry. The legislative relation to ‘The reign terror’ of the French revolutionaries of 1793-4. Mathew Parris of The Committee, Consideration of legislation referred, framework, particularly the IS Act and the Ti m e s wrote on 22/10/01 ‘Te r r o r i s t ’ to the Committee Inquiry into the Provisions of the Cybercrime Bill 2001, August 2001 IGIS Act contains appropriate safeguards to might be thought a recent expression but goes ensure that ASIS and DSD behave lawfully. back at least as far as 1795 when it was used in 1 4 s29 of the IS Act.

believed to be sheltering him. A ‘war be achieved by such means. A warlike against terrorism’ was declared (to be response is less discriminating and open Enduring law known first as Infinite Justice, then as to allegations of the pursuit of ulterior Enduring Freedom). The US purported to objectives, especially in the absence of By N R Cowdery Q.C., Council Member, exercise its right to individual or collective UN Security Council direction. It allows Human Rights Institute President, self-defence under customary those against whom the ‘war’ is waged to International Association of Prosecutors international law and Article 51 of the trade on the injustices that it will United Nations Charter and set about necessarily produce. It also introduces Nicholas Cowdrey argues the case building a of nations under superfluous allegations against the for the alleged terrorists to be various agreements and relationships. principal wager of the war – in this case, prosecuted in an International It should be noted, however, that the world’s only superpower. Criminal Court. Article 51 allows such measures against Do m e s t i c a l l y , members of the armed attack ‘until the Security Council coalition that has been formed have On 11 September has taken measures necessary to maintain introduced emergency measures to This was 2001, attacks were made international peace and security’. address the continuing threat of terrorism. by individuals (some A few weeks later the UN and its Care must be taken to ensure that such criminal identified, some not) Secretary General were awarded the 2001 measures are proportionate to the threat against property in the Nobel Peace Prize. Kofi Annan wishes the and that they do not extend beyond the conduct on a United States of America, UN to be the centre of a ‘global coalition term of any clear and present danger. against persons in the US against terrorism’. A useful first step It is disturbing that the ‘war’ is being large scale and and against aspects of the would be for the Security Council to act directed by a country that is so opposed to fabric of US society. Over under Chapter Seven of the UN Charter - the establishment of the International with a 5,000 individuals from by taking such action as may be necessary Criminal Court. The ICC will be created over 80 countries were to restore international peace and security and it will supersede the presently under- significant killed. and by establishing an international resourced tribunals at The Hague. It will international This was criminal tribunal to try those identified as the have jurisdiction over crimes like these if conduct on a large scale surviving perpetrators of these crimes. countries otherwise having jurisdiction are dimension. and with a significant Although the attacks on 11 September unable or unwilling to try the offenders. It international dimension. had warlike features and consequences, will assist in avoiding wars. These actions they were criminal actions. A criminal law provoked understandable human response is the most appropriate one and responses including (as for many crimes) the mechanism exists for it to be made. outrage and a desire for revenge. In Such a response enables the guilty to be response, the government of the US acted identified, targeted and dealt with under against its main suspect, his associates the rule of law. The highly successful and the government of the country Lockerbie trial is an example of what can

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the rescuees be brought ashore to the Australian mainland and that they be allowed to make applications for protection visas. The Tampa crisis: In the alternative, the applicants contended that if the Migration Act did not apply, then the rescuees were detained The Federal Court’s consideration without lawful authority. It followed that relief in the nature of habeas corpus should be available to compel the Commonwealth to release the rescuees from unlawful of the lawfulness of the detention. Mr Vadarlis pursued several additional claims, arguing in particular that he had been prevented from Commonwealth’s actions communicating with the asylum seekers and that this amounted to an infringement of his implied constitutional freedom of communication By Sarah Pritchard

Background On 26 August 2001, Captain Arne Rinnan, Master of the Norwegian container ship the MV Ta m p a, received a request from the Australian authorities to rescue a ship in distress. Captain Rinnan was guided to the sinking ship by the Australian Coast Guard. The MV Ta m p a, licensed to carry no more than 50 people and with a crew of 27 on board, rescued 433 people in international waters near Christmas Island. On 29 August, Captain Rinnan concluded that some of the rescuees required urgent medical treatment. When no assistance was forthcoming, he took the MV Ta m p a i n t o Australian territorial waters about four nautical miles off Christmas Island. The Australian authorities subsequently declined to permit the rescuees to land on Christmas Island.

The proceedings before North J On 31 August 2001, the Vi c t o r i a n MV Tampa off Christmas Island. Photo: Mike Bowers/Sydney Morning Herald Council for Civil Liberties Incorporated and Mr Eric Vadarlis, a solicitor practising in Melbourne who Mediation desired to provide free legal advice to the rescuees on After the conclusion of argument, North J referred the migration matters (‘the applicants’), commenced proceedings proceedings to mediation. At mediation it was agreed that the in the Federal Court against, amongst others, the Minister for rescuees would be transferred from the MV Ta m p a to the Immigration and Multicultural Affairs and the Commonwealth HMAS Manoora, with no person being required to leave the of Australia (collectively ‘the Commonwealth’). Leave was also HMAS Manoora until the determination of the proceedings granted to Amnesty International Limited and the Human before the trial judge or any appeal to the Full Federal Court. Rights and Equal Opportunities Commission (‘HREOC’) to Following the agreement, the HMAS Manoora commenced the intervene. Shortly after the case commenced to be heard at voyage towards Port Moresby. 11.00 am on Saturday, 1 September, the Solicitor-General for the Commonwealth read to the Court an announcement just The reasons of North J made by the Prime Minister concerning an agreement with the In reasons handed down on 11 September 2001 (Vi c t o r i a n governments of New Zealand and Nauru for the processing of Council for Civil Liberties Incorporated v Minister for the rescuees. Immigration & Multicultural Affairs [2001] FCA 1297 (11 September 2001), North J rejected the applicants’ arguments The arguments of the applicants concerning the application of the Migration Act to the Before Justice North, the applicants argued that the situation of the rescuees. He also rejected Mr Va d a r l i s ’ provisions of the Migration Act 1958 (Cth), especially ss189 argument in relation to freedom of political communication, and 245F(9), imposed a duty on the Commonwealth to detain noting that the constitutional freedom could only be claimed the rescuees and at the same time to accord to them various for the benefit of Australian citizens and not aliens. In so far rights under the Act, including the right to apply for as Mr Vadarlis also rested this claim on his own freedom of protection visas as refugees. The applicants sought orders that political communication, North J accepted the

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C o m m o n w e a l t h ’s submission that the freedom is not a right to knowledge of the rescuees of any such means. The presence of require the Commonwealth to facilitate communication: 45 SAS troops, armed and in combat fatigues, is likely to have M c C l u re v Australian Electoral Commission (1999) 163 ALR led the rescuees to the conclusion that they were bound to do 734 at 740-1. as they were told. Indeed one of the agreed facts is that the North J accepted, however, that the rescuees were held in SAS troops control the movements of the rescuees on board detention without lawful authority. Applying Chu Kheng Lim v the MV Ta m p a.’ There was in reality a total restraint on the Minister for Immigration, Local Government and Ethnic Aff a i r s freedom of the rescuees: (1992) 176 CLR 1 at 19, 63 and Re Bolton & Another; Ex In my view the evidence of the respondents’ actions in the parte Beane (1987) 162 CLR 514 at 528-9, North J rejected week following 26 August demonstrate that they were the distinction urged by the Commonwealth between partial committed to retaining control of the fate of the rescuees in and total restraint of freedom: all respects. The respondents directed where the MV Ta m p a It may be accepted that as far as the respondents were was allowed to go and not to go. They procured the closing of concerned the rescuees were free to go anywhere other than the harbour so that the rescuees would be isolated. They did Australia and hence were only partially restrained. But the question here is whether that freedom is real or illusory. As Townley J said in Burton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26 at 30: ‘If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window. ’ North J also rejected the contention that the Court must view the opportunities for escape from custody against the background of the circumstances in which the custody arose, in particular that the custody of the rescuees was ‘self- inflicted’. He stated: ‘To describe the plight of the rescuees as self-inflicted is not a balanced view of the full circumstances of their situation.’ Nor did North J accept the argument that that the rescuees were not detained because there were avenues of escape open to them: Asylum seekers arrive in Nauru. Photo: Angela Wylie/Sydney Morning Herald One of the means of escape was to leave with anybody who was prepared to take them from the M V not allow communication with the rescuees. They did not Ta m p a. There is no evidence that there is any such person or consult with them about the arrangements being made for b o d y. None has so far come forward. The chances of any such their physical relocation or future plans. After the offer being made is limited because the number of rescuees is arrangements were made the fact was announced to them, so large. The nearest port was closed by the respondents to apparently not in their native language, but no effort was stop any local ships approaching. There was a limit on how made to determine whether the rescuees desired to accept the long the rescuees could remain on board the MV Ta m p a as it arrangements. The respondents took to themselves the could not accommodate them for long. They stayed on the complete control over the bodies and destinies of the deck under a tarpaulin and in five empty shipping containers. rescuees. The extent of the control is underscored by the fact The suggested means of egress was not a real option. In the that when the arrangements were made with Nauru, there had circumstances it is mere speculation. been no decision as to who was to process the asylum applications there or under what legal regime they were to be Nor did North J accept that the Commonwealth could rely processed. Where complete control over people and their on the rescuees leaving on the MV Ta m p a as a means of destiny is exercised by others it cannot be said that the escape. He noted that Captain Rinnan had come into opportunity offered by those others is a reasonable escape territorial waters only in response to what he regarded as a from the custody in which they were held. The custody simply medical emergency, that the Ta m p a was not equipped to continues in the form chosen by those detaining the people accommodate such a large number of people, and that it was restrained. engaged in a high value commercial operation which had North J also considered argument concerning the already been interrupted by events. His Honour also rejected C o m m o n w e a l t h ’s power to remove the rescuees from the Commonwealth’s suggestion that the rescuees could leave Australian territorial waters pursuant to the Nauru/NZ pursuant to the Nauru/NZ arrangements: ‘In assessing whether arrangements. The Commonwealth did not rely on any there is a reasonable means of egress, a relevant matter is the statutory power to expel the rescuees, rather contended that

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the expulsion was a valid exercise of prerogative power. North power to determine who may come into its territory and who J concluded that the Migration Act contains comprehensive may not and who shall be admitted into the Australian provisions concerning the removal of aliens (ss198-9), and was community and who shall not. That power may also be linked intended to regulate the whole area of removal of aliens. It left to the foundation of the Constitution in popular sovereignty no room for the exercise of any prerogative power on the implied in the agreement of the ‘people’ of the pre-federation colonies ‘to unite in one indissoluble federal Commonwealth’. subject: Attorney-General v De Keyser’s Royal Hotel Ltd [ 1 9 2 0 ] It may be said that the people, through the structures of AC 508. representative democracy for which the Constitution The proceedings before the Full Court provides, including an Executive responsible to the The Commonwealth and ministers concerned appealed Parliament, may determine who will or will not enter Australia. These powers may be exercised for good reasons or against North J’s decision. On 12 September 2001, an bad. That debate, however, is not one for this Court to enter. application for an urgent hearing of the appeals was granted. The Full Court, comprising Black CJ and French and French J concluded that absent statutory extinguishment Beaumont JJ, sat until late the following day to or abridgement, the executive power of the Commonwealth hear submissions. The decision of the Full would extend to a power to prevent the entry of non-citizens Court was announced on 17 September 2001, and to do such things as are necessary to effect such ‘...the Federal with its reasons published on 18 September: exclusion. He was not satisfied that the provisions of the Ruddock v Vadarlis [2001] FCA 1329. The key Migration Act evinced ‘a clear and unambiguous intention to Court proceedings issues on the appeal were (a) whether the deprive the Executive of the power to prevent entry into executive power of the Commonwealth Australian territorial waters of a vessel carrying non-citizens have exposed a authorised and supported the expulsion of the apparently intending to land on Australian territory and the rescuees and their detention for that purpose; power to prevent such a vessel from proceeding further significant gap and (b) if there was no such executive power, towards Australian territory and to prevent non-citizens on it whether the rescuees were subject to a restraint from landing upon Australian territory.’ The Act, by its between the attributable to the Commonwealth and amenable creation of facultative provisions the object of which is to to habeas corpus. By a majority comprising control entry, could not be taken as intending to deprive the obligations of Beaumont and French JJ, the Court determined Executive of the power necessary to do what it has done in this that the appeals should be allowed and set aside case. The steps taken in relation to the MV Ta m p a which had Australia under the decision of North J. the purpose and effect of preventing the rescuees from entering the migration zone and arranging for their departure the Convention French J (Beaumont J agreeing) from Australian territorial waters were within the scope of French J (with whose reasons Beaumont J executive power. relating to the agreed) undertook an analysis of the source and Nor did French J accept that on the facts of the case, the general character of the executive power of the rescuees were subject to a restraint on liberty not authorised Status of Refugees Commonwealth, the primary source of which is by law and amenable to habeas corpus. He acknowledged that s61 of the Constitution, and which power is to the extent that the Commonwealth prevented the rescuees nor the Protocol subject to abrogation, modification or regulation from landing on Australian soil, it closed a possible avenue by laws of the Commonwealth. His Honour out of a situation in which they had been placed by other Relating to the reviewed the various authorities concerning the factors. However, the rescuees had no right to land, and the requirement for clear intention to displace the closure of the port and the orders made by the Harbour Master Status of Refugees p o w e r, noting that: were done under statutory authority, the validity of which was The greater the significance of a particular not challenged. The actions of the Commonwealth were (‘Refugees executive power to national sovereignty, the less ‘properly incidental to preventing the rescuees from landing in likely it is that, absent clear words or inescapable Australian territory where they had no right to go’. Their Convention’) and implication, the parliament would have intended inability to go elsewhere derived from circumstances which to extinguish the power. In such a case close did not come from any action on the part of the the rights of asylum scrutiny will be required of any contention that a Commonwealth. The Nauru/NZ arrangements of themselves statute, without express words to that effect, has provided the only practical exit from the situation: ‘Those displaced the operation of the executive power by seekers...’ arrangements did not constitute a restraint upon freedom virtue of ‘covering the field’ of the subject matter. attributable to the Commonwealth given the fact that the His Honour opined that the scope of the Captain of the Ta m p a would not sail out of Australia while the executive power conferred by s61 is to be measured by rescuees were on board. … [T]aken as a whole, there was no reference to Australia’s status as a sovereign nation and by restraint on their liberty which could be attributed to the reference to the terms of the Constitution itself. His Honour C o m m o n w e a l t h . ’ identified (par 192) a range of legislative powers central to the expression of Australia’s status and sovereignty as a nation, Black CJ including the powers to make laws with respect to The Chief Justice dissented, taking the view that whilst naturalisation and aliens (s51(xix)), immigration and the power to expel people entering Australia illegally cannot emigration (s51(xxvii)) and the influx of criminals be doubted, it is a power that derives only from laws made by (s51(xxviii)): the Parliament and not from prerogative powers otherwise A u s t r a l i a ’s status as a sovereign nation is reflected in its exercisable by the executive government under s61. The Chief Justice concluded that since the Commonwealth had not relied

16 R E G I O N A L A N D S E C U R I T Y I S S U E S on the powers provided in the Migration Act, it had no power person detained here and now?”. If so, prima facie, the to detain those rescued from the Ta m p a. detention is unlawful unless legally justified.’ It was important Black CJ undertook a detailed review of judicial authority to focus not on the lack of any right of the rescued people to and scholarly commentary concerning the power or enter Australia, but on whether the rescued people were, in a prerogative of the Crown to exclude aliens. It was, ‘at best, real and practical sense, detained by the Commonwealth. The doubtful that the asserted prerogative continues to exist at conclusion was inevitable that, viewed as a practical, realistic common law’, although it was not necessary to express a m a t t e r, the rescued people were unable to leave the ship that concluded view. The Chief Justice then turned to consider rescued them on the high seas when the wooden fishing boat w h e t h e r, if there is any prerogative or other non-statutory in which they were travelling began to sink’. In relation to the executive power, it had been abrogated by the Parliament Nauru/New Zealand arrangements, Black CJ considered that it through the enactment of the Migration Act. Black CJ was open to French J to find that: ‘Where complete control accepted the test as stated in Attorney-General v De Keyser’s over people and their destiny is exercised by others it cannot Royal Hotel Ltd [1920] AC 508 (‘De Keyser’s ’), namely whether be said that the opportunity offered by those others is a reasonable escape from the custody in which they were held. The custody simply continues in the form chosen by those detaining the people restrained.’

Application for special leave to appeal to the High Court On 29 October 2001, Hayne J granted an application for expedited hearing of Mr Vadarlis’ application for special leave to appeal to the High Court from the decision of the Full Court. The special leave application has been set down for hearing on 14 December 2001.

Conclusions It remains to be seen whether the High Court will grant special leave to appeal in order to consider the important questions raised by the Tam p a proceedings; namely the scope of the executive power in preventing the entry of non-citizens into and effecting their exclusion from HMAS Manoora off Nauru. Photo: Angela Wylie/Sydney Morning Herald Australian territorial waters, and the availability of habeas corpus in the circumstances of the Tam p a rescuees. It is the legislation has the same area of operation as the premature to preempt the outcome of any consideration by the prerogative. After examining the relevant provisions of the High Court of these matters. It can be said, however, that the Migration Act, as amended by the B o rder Pro t e c t i o n Federal Court proceedings in relation to the rescuees on board Legislation Amendment Act 1999 (Cth), he concluded that the the MV Tam p a have exposed a significant gap between the Act showed a regime that is comprehensive in its coverage of obligations of Australia under the Convention relating to the powers of apprehension and detention: Status of Refugees and the rights of asylum seekers recognised The conclusion to be drawn is that the Parliament intended in and made enforceable through Australia’s Migration Act. The that in the field of exclusion, entry and expulsion of aliens proceedings have underlined the incapacity of persons within the Act should operate to the exclusion of any executive Au s t r a l i a ’ s territorial waters to avail themselves of the power derived otherwise than from powers conferred by the obligations imposed upon Australia under the Refugees Parliament. This conclusion is all the more readily drawn having regard to what I have concluded about the nature and Convention outside the procedural framework set out in the the uncertainty of the prerogative or executive power asserted Migration Act. The proceedings again reveal the limited on behalf of the Commonwealth. incorporation by the Commonwealth ’s international obligations, and the lack of justiciability of Black CJ next considered the alternative arguments that international norms in Australian courts. International human no order for release should have been made. In relation to the rights jurisprudence, in particular, as sought to be canvassed C o m m o n w e a l t h ’s argument that any restraint to which the before the Full Court by HREOC, provides support for a rescuees were subjected was not a total restraint of movement, conclusion that the rescuees were unlawfully detained on board that a partial restraint was to be distinguished from detention, the Tam p a and should have been provided with assistance in and that in the circumstances there was no detention such as making applications for refugee status. In Amuur v France1 th e to provide a foundation for the issue of a writ of habeas corpus, issue of what constitutes detention contrary to article 5 of the he concluded that ‘the question should not be, “Would the European Convention on Human Rights (‘European Convention’) person be free if they went somewhere else?” rather “Is the

17 R E G I O N A L A N D S E C U R I T Y I S S U E S arose in the context of the confinement of four Somali asylum grounds for detention are the four grounds provided for in seekers in the transit zone of Paris-Orly airport for some twenty EXCOMM Conclusion No.44 (XXXVII).8 Im p o r t a n t l y , the da y s . 2 The European Court of Human Rights noted that whether Guidelines confirm that detention cannot be used to inhibit a a person has been deprived of his or her liberty contrary to pe r s o n ’ s opportunity to apply for asylum (Guideline 5). Detention article 5 involves considering criteria such as the type, duration, of asylum seekers for any other purpose, ‘for example as part of a effects and manner of implementation of the measure in policy to defer future asylum seekers, or to dissuade those who qu e s t i o n . 3 In finding that the Somali asylum seekers had been have commenced their claims from pursuing them, is contrary to deprived of their liberty in violation of article 5, the Court took the norms of refugee law. It should not be used as a punitive or note of various matters, including that the asylum seekers had disciplinary measure for illegal entry or presence in the country, been subjected to strict and constant police surveillance, and and should be avoided for failure to comply with administrative that they had been deprived of legal and social assistance. The requirements or breach of reception centre, refugee camp, or Court was especially concerned that the applicants were denied, other institutional restrictions’ (Guidelines 3). until 5 days prior to their deportation, assistance in relation to Apart from questions concerning the status in Australian law the completion of formalities relating to an application for of international norms of human rights and refugee law, the refugee status.4 The Court specifically rejected an argument that Tam p a proceedings raise important questions concerning the the asylum seekers could have removed themselves from the role of third parties interested to act in the enforcement of law in restrictive measures applied by the French Government by flying the public interest for those otherwise unable to bring to Syria: proceedings themselves. These questions arise not only in The mere fact that it is possible for asylum-seekers to leave relation to the approach taken to the standing of Mr Vadarlis and voluntarily the country where they wish to take refuge cannot the VCCL both by North J at first instance and Black CJ in the exclude a restriction on liberty, the right to leave any country, Full Court, as well as by Beaumont and French JJ in the Full including one’s own, being guaranteed, moreover, by Protocol Co u r t . 9 There must be particular concern in relation to the No. 4 to the Convention (P4). 5 Furthermore, this possibility treatment of the lawyers who appeared pro bono against the becomes theoretical if no other country offering protection Commonwealth. These included senior counsel such as Gavan comparable to the protection they expect to find in the Griffith Q.C., Jack Fajgenbaum Q.C., Julian Burnside Q.C. and country where they are seeking asylum is inclined or Chris Maxwell Q.C., all of whom were subjected to malicious prepared to take them in. Sending the applicants back to media reports. The Commonwealth is currently seeking to Syria only became possible, apart from the practical recover costs against Mr Vadarlis and the VCCL, apparently problems of the journey, following negotiations between the French and Syrian authorities. The assurances of the latter disregarding the counsel of French J who said in the Full Court: were dependent on the vagaries of diplomatic relations, in The counsel and solicitors acting in the interests of the view of the fact that Syria was not bound by the Geneva rescuees in this case have evidently done so pro bono. They Convention relating to the Status of Refugees. 6 have acted according to the highest ideals of the law. They The European Court’s analysis is consistent with the have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for reasoning of North J and Black CJ in rejecting the the lawfulness of its actions. In so doing, even if ultimately Co m m o n w e a l t h ’ s contention that the asylum seekers were not unsuccessful in the litigation they have served the rule of law detained because they could escape pursuant to the Nauru/NZ and so the whole community. arrangements. It is noteworthy that Syria, like Nauru, is not a party to the Refugees Convention. Amuur was most recently cited with approval by the UK High Court in Saadi v Secretary of 1 (1992) 22 EHRR 533. State for the Home Department.7 There, Collins J held the 2 Article 5 of the ECHR has its equivalent in article 9 of the detention of four asylum seekers to be unlawful by reason of the International Covenant on Civil and Political Rights (‘the ICCPR’), to which treaty Australia is a party. operation of article 5 of the ECHR. His Honour cited with approval the decision in Amuur, stating that the European Court 3 Para 42. ‘unsurprisingly decided that [the asylum seekers in Amuur] had 4 Para 45. been deprived of liberty and so fell within the protection of 5 Protocol No 4 to the ECHR has its equivalent in article 12(2) of Article 5 and that the failure to allow access to legal or other the ICCPR. advice for 15 days made the deprivation of liberty not 6 Para 48. compatible with Article 5.1.’ 7 Unreported O/0074/01, CO/4559/00, CO/4553/00, 7 September Other international standards arguably applicable to the 2001, Collins J. situation of the asylum seekers on board the Tam p a include the 8 These grounds are (i) to verify identity; (ii) to determine the Refugees Convention itself, article 16(1) of which provides that a elements on which the claim for refugee status or asylum is bases; (iii) in cases where asylum-seekers have destroyed their refugee shall have free access to the courts of law on the territory travel/and or identity documents or used fraudulent documents in of all contracting States, as well as the United Nations High order to mislead the authorities of the state in which they intend Commissioner for Refugees’ Guidelines on applicable criteria and to claim asylum; and (iv) to protect national security and public st a n d a r ds relating to the detention of asylum-seekers (1 9 9 9 ) . order. These Gu i d e l i n e s define detention as confinement within a 9 It was held by both the trial judge and by the Full Court that the narrowly bounded or restricted location, including prisons, standing of the applicants extended only to seeking relief in the nature of habeas corpus. closed camps, detention facilities or airport transit zones, where the only opportunity to leave such limited area is to leave the te r r i t o r y . The Guidelines affirm that the only permissible

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a Constitution for East Timor that meets the approval of sixty of the A Constitution for East Timor eighty-eight members of the Assembly. It further confers power upon the By Justin You n g * Assembly to transform itself into the c o u n t r y ’s first parliament if the Justin Young reflects on the task facing East timor’s Constituent Assembly in drafting a constitution for the world’s newest nation within a 90 day timeframe. Constitution it creates so provides. ‘Not long enough,’ I thought again as I read the Directive sitting in a ‘I do not know a lawyer in the And it was my view, as I arrived in sparse room of the old Presidential world who would not jump at the Dili last May, one of the constitutional Palace now occupied by UNTA E T. chance to draft a Constitution’, said trainers brought in by the United The Directive also recites Peter Galbraith from behind a desk in Nations in my capacity as a member of U N TAET Regulation 1999/1 of 27 the United Nations headquarters in an Australian non-government November 1999. This Regulation is Dili. Galbraith, son of the renowned organisation (‘NGO’), one of the many entitled: Authority of the Tr a n s i t i o n a l economist John Kenneth Galbraith, offering support to the East Ti m o r e s e Administration in East Ti m o r. This is former United States Ambassador to people as they rebuild their nation. the founding regulation of the Croatia during the Balkans war and to I was there as a result of the transitional administration. It sets out the United Nations during the promulgation on 30 March 2001 of a the powers and responsibilities of bombing of Kosovo, is now United Directive entitled On the establishment U N TA E T. Nations Special Envoy in East Ti m o r. of constitutional commissions for East F i n a l l y, the Directive recites UN He is also a lawyer. Ti m o r. This was, like all such Security Council Resolution 1272 Between trips to Canberra and Directives, promulgated by the Special (1999) of 25 October 1999; the UN Jakarta, where he has Representative in East Timor of the resolution that created the United been negotiating Secretary-General of the United Nations’ mission in East Ti m o r. ‘Not long enough,’ amendments to the Nations, and head of the UN It was through the matrix of this Timor Gap Treaty on Transitional Administration in East and other legislation that East Ti m o r I thought again.’ behalf of the East Timor (‘UNTAET’), Sergio Vieira de has functioned for two years and will Timorese to provide a Mello (‘the Administrator’). continue to function until UNTA E T sustainable income to The Directive provides for the withdraws. This will be in May 2002 build an independent East Ti m o r, he setting up, in each of the thirteen according to a recently announced has been overseeing the development provinces of East Ti m o r, of agreement between UNTAET and the of its Constitution. For Galbraith, constitutional commissions to conduct East Timorese leadership to the effect ‘overseeing’ is probably too strong a public meetings in the period leading that, after expected presidential word: ‘This will be an East Ti m o r e s e up to the elections. The purpose of elections early next year, the executive Constitution,’ he says. these meetings was to educate, and authority currently exercised by At the time of writing, the elicit the views of, the East Ti m o r e s e U N TAET will be handed over to the Constituent Assembly in Dili, elected people about their constitutional new constitutional head of state. through the country’s first free and fair options. The commissions were Thus, an interesting constitutional elections in August, is embarked upon charged with the responsibility of situation pertains: the Constituent the task of drafting a Constitution for reporting the views of the people of A s s e m b l y, established through the people of East Ti m o r. each province back to the Constituent democratic elections, is in the process It has ninety days to complete the A s s e m b l y, once elected. The Directive of drafting a Constitution for East t a s k . also contemplated some basic training Timor that will, some time early next ‘Not long enough,’ is the view often of the constitutional commissioners y e a r, be adopted by a vote of that expressed by many involved in the before the public hearings took place. A s s e m b l y. That Constitution is likely East Timorese constitutional The Directive recites UNTA E T to make provision for the election of a development process. It was the view Regulation 2001/2 of 16 March 2001. president by May next year. Of of the East Timorese Jurists This is entitled: Election of a interest is that, notwithstanding the Association, the fledgling ‘Law Constitutional Assembly to pre p a re a clear mandate given to the Constituent Society’ of East Ti m o r, when they Constitution for an independent and Assembly through the election decided to withdraw from a formal role democratic East Ti m o r. It is this process, the Assembly nevertheless in the United Nations’ constitutional document, also promulgated by the remains the creature of an UNTA E T education process earlier this year. It A d m i n i s t r a t o r, that establishes the Regulation and will remain that way was the view of many of the mechanism for the creation of an until, by way of further promulgation overworked (and somewhat shell- independent East Ti m o r. It provides in May next year and in conjunction shocked) officers, many Australian, of for the election of a body to be known with the swearing in of the new the United Nations Department of as the Constituent Assembly whose president, it declares itself defunct. Legal Affairs in Dili. role is to produce, within ninety days, The Constituent Assembly is a body, * The views expressed in this article are the author’s alone and not those of any organisation. in effect, created and destroyed by the

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pen of one person, the Administrator. his position of de jure a b s o l u t e presidential system will be adopted. It I mused on this at the beginning of sovereign, promulgating regulations is equally certain that Xanana my stay. Dili remains a city of charred and ensuring East Timor functions on Gusmao, now that he has stated he is skeletal buildings, traumatised faces a day-to-day basis. His unfettered willing to stand, will be East Ti m o r ’s and crowds of refugees packed into power is tempered by a National first president. He will receive the Dili’ s central market. Electricity and Council, a body of East Ti m o r e s e baton passed to him by the water supplies are unreliable. Shops luminaries appointed by the A d m i n i s t r a t o r. are closed. People in the countryside, Administrator and with whom he Not long enough? Peter Galbraith their houses burnt, had walked for consults. This is the body of which does not agree. days to come to Dili where there was Xanana Gusmao, before he resigned, It is for the East Timorese to decide. some hope of work and safety. But Dili was part and of which Hose Ramos If they would like assistance, we will is also a place of UNTAET vehicles Horta is ‘Foreign Minister.’ This provide it. But it is their Constitution. rushing around from one dusty Council will cease to exist along with A n y w a y, if they are given a building to another and well-dressed U N TA E T ’s withdrawal. Constitution which they do not own, UN and NGO officials spending East Ti m o r ’s security concerns they will ignore it and if their own Australian or American dollars and become smaller and smaller as each Constitution falls short of the mark, speaking English. The night time vista day passes. The soldiers of Australia they will find a way to make it work. of central Dili is of a tropical, humid and New Zealand (and, to a lesser There are many different views on place dominated by the brightly lit extent, other countries) continue to this subject. The Australian and air-conditioned UNTA E T patrol the border with Indonesia and Constitution is a creature of many h e a d q u a r t e r s . other hot spots. The isolated years’ deliberation by people well The contrast between the world of skirmishes becoming fewer and farther versed in constitutional and U N TAET and that of the local people between. The Australian contingent governmental affairs and with a is stark: it is no more has plans to remain in East Ti m o r prosperous nation’s resources at their obvious than in the until at least 2005, with an objective command. Many are afraid that a ‘If they are presence near the of promoting a secure environment in solution for East Timor that is seen by U N TAET headquarters which the fledgling state can develop. some to be imposed from above and in given a of a new underclass of Quite what mandate it will operate such a short time frame is a recipe for street kids, dirty, cheeky, under after the UNTAET withdrawal is future instability and chaos. Constitution approaching passers-by, not clear. But all things depend on their trying to sell them What type of Constitution East contexts. The constitutional which they cigarettes and phone Timor will adopt is an interesting development process began at a time cards or to exchange question. Fretilin has had a draft in when Dili’s buildings were still do not own, m o n e y. These children circulation for some time. It opens burning. A good number of the are the creatures of a with the declaration: U N TAET officers now presiding over they will clash of cultures and the The Democratic Republic of East the constitutional development poverty of an oppressed Timor is a democratic state, sovereign process first stepped ashore at Dili ignore it.’ and war-ravaged people. and independent, that is based upon Harbour when the only security came But the process goes the rule of law, the dignity of the out of the barrel of an INTERFET gun. on. The Constituent human person and the will of the When building a society has to start Assembly elections took place in p e o p l e . with putting out the smouldering August without incident. The worst Although these words are borrowed embers of the society whose place it is fears of the people - that the from the Portuguese Constitution, one taking, time is a commodity to be used Indonesian militia would return or that cannot help but feel that they will s p a r i n g l y. minority political parties disgruntled linger long on the lips of the East The people of East Timor have with the election process would cause Timorese, so long deprived of the already experienced instability and bloodshed - proved unfounded. sentiments they express. chaos far worse than anything that Fretilin, by far the biggest political The politics of the Constituent might arise out of defects in a force in East Ti m o r, polled well but Assembly will play their part. The Constitution. They have already fell short of the sixty members it Australian Section of the International endured years of foreign rule far less needed to push its constitutional Commission of Jurists is working with respectful of their interests than the model through. As a result, a genuine interests in East Timor to create a legislation promulgated by the constitutional development process is practical workable constitutional U N TAET Administrator. currently under way. The Assembly model in an environment where the And they have waited long enough has established various working focus of the debate has been on the for their independence. groups, each to consider discrete more general issues of human rights, aspects of the proposed Constitution. d e m o c r a c y, the rule of law and the In the meantime, the workings of like. Although the full range of government in East Timor continue. constitutional models is available to The Administrator continues to occupy the Assembly, almost certainly a

20 R E C E N T D E V E L O P M E N T S

The majority found the most important arguments raised by Should New South Wales opponents of a Bill to be: • a Bill would increase the power of the courts at the expense of have a Bill of Rights? Parliament, undermining Parliamentary supremacy and leading to a politicisation of the Ju d i c i a r y ; Report of the Legislative Council Standing • a Bill would increase uncertainty in Committee on Law and Justice the law because rights are widely A NSW Bill of Rights: Report 17, October 2001 defined, requiring judicial interpretation to give them content; By Christopher O’Donnell • there is no consensus as to which rights should be protected;

In October 2001 the Standing model even less acceptable than the • a Bill could lead to an increase in Committee on Law and Justice of the New statutory model. litigation and associated costs; South Wales Legislative Council released The choice between these opposing • a Bill could be used to intrude on the report resulting from its inquiry into models raises the central question of the activities of private businesses whether it is appropriate and in the public where to place the balance between and associations; and interest to enact a statutory NSW Bill of parliamentary supremacy and the power of • a focus on rights can lead to a lack Rights and/or whether judicial review. Some arguments about the of acceptance of responsibilities. amendments should be effectiveness of limitation clauses in Despite acknowledging the existence made to the In t e r p re t a t i o n protecting the supremacy of Parliament, ‘The majority of examples of the neglect of human rights Act 1987 to require courts such as the Canadian ‘reasonable limits’ of minority groups and individuals and to take into account rights provision, were considered. But the narrow expressed fears agreeing that the common law is not a contained in international reference on the question of a proposed sufficient protection of individual rights in conventions. In a majority model pre-empted a full debate on the that a Bill would the absence of legislative action, the report, four members of the question in evidence and submissions majority of the Committee did not support Committee found that it is before the Committee. Because of its the solution proposed for the principal see politically not in the public interest finding on the principal term of reference reason that3: for the NSW Government – whether there should be a statutory Bill A statutory Bill could lead to some active judges to enact a statutory Bill of of Rights – the majority of the Committee improvement in human rights Ri g h t s 1. The dissenting did not make findings on the nine terms of make decisions protections in some instances. However, committee member, The reference dealing with specific aspects of the cost of this uncertain marginal Hon. Peter Breen MLC, a Bill. improvement is a fundamental change with a substantial disagreed with this The majority of the Committee found in the relationship between fi n d i n g 2. the most significant arguments in favour of representative democracy, through an impact on the The Committee’s terms a NSW statutory Bill of Rights to be: elected Parliament, and the judicial of reference were wide- • at present there are inadequate system. The independence of the allocation of ranging in some respects. protections of human rights for the Judiciary and the supremacy of Im p o r t a n t l y , however, the co m m u n i t y , due to gaps in current Parliament are the foundations of the resources within principal term was limited legislation and the uncertainty of current system; the Committee is particularly concerned at the change to the question of whether a the common law; over time that a Bill would make to the community.’ st a t u t o r y Bill, such as those • at present there is inadequate these respective roles. The Committee found in New Zealand and protection of minorities in society in believes a Bill of Rights could the United Kingdom, the absence of a Bill; undermine the legitimacy of both should be enacted. The suitability of a • a Bill of Rights would have institutions. co n s t i t u t i o n a l l y entrenched Bill such as educative value in political debates, A significant underpinning for this the United States Bill of Rights or the thereby developing greater belief is the majority’s fear that increasing Canadian Charter of Rights and Freedoms understanding of human rights the scope for judicial decision-making into was not referred to the Committee. within the community; an area of broadly defined rights would Nevertheless, the Committee considered lead to an increasing politicisation of the arguments on the relative merits of the • there is a risk of international unelected Judiciary and increase conflict, statutory and the constitutional models, as isolation of the development of rather than facilitate dialogue, between the a number of submissions argued strongly domestic law in the absence of a Judiciary and the legislature. The majority that a statutory Bill provided insufficient Bill of Rights; and expressed fears that a Bill would see protection. The majority report clearly • a Bill of Rights can facilitate a politically active judges make decisions shows that it found the constitutional constructive dialogue between the with a substantial impact on the allocation Judiciary and the parliament.

21 R E C E N T D E V E L O P M E N T S

of resources within the community. This of the difficulty of formulating these to of overseas models where the potential type of resource allocation is something avoid intruding into the role of elected conflict between judicial review and the Judiciary are neither trained nor governments in determining resource and parliamentary supremacy has been elected to undertake. policy issues. The majority’s concerns resolved in favour of Parliament. The The majority also found that an about the impact of any Bill on the Canadian Charter allows the legislature, inevitable consequence of the enactment existing balance of power between the by express declaration in a statute, to of a Bill would be increasing uncertainty legislature and the Judiciary led it to override rights enshrined in the Charter. in the law for an extended period as a reject even this minimalist and gradualist The extent of any override is confined, result of ‘speculative litigation’ based on approach to enacting a Bill of Rights. ho w e v e r , by the ‘reasonable limits’ clause, the Bill, particularly in the criminal In his dissenting report Peter Breen which guarantees the rights and freedoms jurisdiction. The problem of what rights to MLC disagreed with the primary finding of set out in the Charter ‘subject only to such include in a Bill troubled the majority. the majority of the Committee that the reasonable limits prescribed by law as can Should a Bill of Rights be confined to the public would not be served by a statutory be demonstrably justified in a free and fundamental human rights enumerated in Bill of Rights6. Two areas of particular democratic society’12. There has been the 1948 United Nations Declaration of concern to Breen were the lack of any considerable judicial discussion of what Human Rights? Or should a Bill more effective existing provisions to ensure constitutes ‘reasonable limits’ in the comprehensively include the civil and access to justice and the protection of Canadian courts. political rights set out in the 1966 minorities. He was also concerned about Another interesting compromise on International Covenant on Civil and the level of protection from discrimination this issue was achieved in the United Political Rights (ICCPR) or the economic, on the grounds of race. However, Breen’s Kingdom on 2 October 2000, when the social and cultural rights declared in the assertion that ‘one right that the Australian British Human Rights Act came into effect. International Covenant on Economic, Constitution does preserve (although The Act was introduced by the Blair Social and Cultural Rights (ICESR) of the hardly a ‘human’ right) is the right of state Government in 1997 for the purpose of same year? The majority governments to pass racist laws’7 is incorporating into British domestic law the chose not to answer these questionable in the light of the Ra c i a l major rights and freedoms set out in the ‘Two areas of fundamental questions, Discrimination Act 1975 (Cth) and the European Convention on Human Rights concluding that4: High Court’s decisions in Koowarta v and Fundamental Freedoms (ECHR). The particular concern 8 9 Inadequacies in the Bj e l k e - P e t e r s e n and Tasmanian Dams . UK Government’s acceptance of the protection of human rights In t e r e s t i n g l y , Breen reports that the draft compulsory jurisdiction of the European to Breen were may exist in New South of the Australian Constitution prepared by Court of Human Rights in 1966 had led to Wales but the Committee Tas m a n i a ’ s Inglis Clark included twelve a string of embarrassing findings by that the lack of any believes the Bill of Rights as citizens’ rights but that ‘most of these Court in the 1980s and 1990s that a solution raises more rights had to be removed from the draft decisions of English courts were in breach effective existing problems than it resolves. It Constitution because they contradicted of ECHR standards. The Blair Labour is preferable that Parliament our racist factory and immigration laws, Government responded with a White become a more effective provisions to not to mention laws discriminating against Paper entitled Rights Brought Home an d guardian of human rights Aboriginal people’10. the Human Rights Act followed. The rather than handing over this ensure access role. Breen did not share the Committee Human Rights Act preserves the validity of ma j o r i t y ’ s pessimism about the effect a primary legislation but permits a higher A notable model for a to justice and Bill might have on the certainty of the law, court to make a declaration that the ‘minimalist’ Bill with the volume of litigation, the intrusion of legislation is incompatible with ECHR enhanced prospects of the protection judges into questions of resource rights. This then initiates a ‘dialogue’ gaining community allocation and tension between politicians between the Judiciary, Parliament and the acceptance was proposed of minorities.’ and judges over their respective powers. Executive. A Minister may seek to the Committee by His dissenting report includes some parliamentary approval for a remedial Professor George Wil l i a m s analysis of how the structure of a Bill of order to amend the legislation to make it of the University of New South Wal e s . Rights might deal with these concerns11. compatible. Alternately, the executive arm Williams argued that a statutory Bill Im p o r t a n t l y , he notes that all of these of government may ignore the declaration should initially only include those few concerns can be met by the inclusion of of incompatibility. rights for which there was widespread guidelines in a Bill of Rights requiring Despite dissension on the community support5. He suggested judges to refer back to Parliament any fundamental question, the NSW consolidating existing anti-discrimination question of incompatibility between the Legislative Council’s Standing Committee legislation and other commonly accepted objectives of the impugned legislation and on Law and Justice made two unanimous rights such as freedom of speech, freedom its application in particular circumstances recommendations. The first was for the of association and the right to vote in a asserted to be contrary to rights establishment of a Scrutiny of Legislation minimalist Bill. Rights affecting the enumerated in the Bill. In this way Committee, similar to the Senate Scrutiny criminal law, such as those in the ICCPR, Parliament retains its primacy, but the of Bills Committee established in 1981. could be deferred to ensure an initial Bill ante is upped on the question of protecting The purpose of the recommended maximum support. Williams did not ri g h t s . committee is to review systematically advocate the inclusion of economic, The Committee referred to a number NSW legislation upon its introduction to cultural and social rights in a Bill because

22 R E C E N T D E V E L O P M E N T S detect and alert the Parliament to possible Rights. What benchmark would the 1 NSW Legislative Council: Standing breaches of individual rights and liberties, judges use to decide a question of Committee on Law and Justice, Report human rights that was not part of 17 ‘A NSW Bill of Rights’, October and to provide ministers with the 2001, p 114. opportunity to argue why they consider domestic law for example? Many treaty laws are subscribed to by the executive 2 Peter Breen’s Dissenting Report is such breaches to be necessary. The second published as Appendix 9 to the Report. government with little or no scrutiny by recommendation of the Committee is the the legislature. 3 Ibid p xiii. amendment of the In t e r p r etation Act 1987 4 Ibid, p xiv. The Committee’s report would appear so as to allow judges to consider 5 Ibid, p 43. international human rights instruments in to have moved the question of a Bill of 6 Ibid, Appendix 9, p 1. trying to understand legislation where the Rights off the present NSW Parliament’s 7 Ibid, Appendix 9, p 3. meaning is ambiguous. The majority of the agenda. Advocates for a Bill of Rights may Committee noted in relation to this now have to look to the federal sphere to 8 (1982) 153 CLR 168. recommendation that13: achieve their aims. 9 (1983) 158 CLR 1. 10 NSW Legislative Council: Standing Judges currently have this option in any Committee on Law and Justice, Report case under common law statutory rules 17 ‘A NSW Bill of Rights’, October of interpretation. This amendment 2001, Appendix 9, pp 3-4. provides parliamentary endorsement of 11 Ibid, pp 5-9. the common law position. 12 Canadian Charter of Rights and Peter Breen MLC, while supporting Fre e d o m s , section 1. the recommendation, made these 13 NSW Legislative Council: Standing co m m e n t s 14: Committee on Law and Justice, Report 17 ‘A NSW Bill of Rights’, October I wonder about the value of such a 2001, p xiv. provision in the absence of a Bill of 1 4 Ibid, Appendix 9, p 1.

being used against him in a prosecution for offences other than pe r j u r y . He also allowed the prosecution to cross-examine Sako as Recent High Court an unfavourable witness pursuant to s38 of the Evidence Act. The trial judge admitted as evidence of the truth of their contents Sako’s prior inconsistent statements to police during his first full interview. criminal cases A majority of the High Court, comprising Gleeson CJ, McHugh, Kirby and Hayne JJ. held that the prior inconsistent statements in by Christopher O’Donnell the interview were properly admitted. Although the prior inconsistent statements were relevant to Sako’s credibility they Adam v The Queen – [2001] HCA 57 (11 October 2001) could also rationally affect (in at least some respects directly, and in The appellant was charged with the murder of an off-duty police others indirectly) the assessment of the probability of the existence constable, David Carty. During the trial the prosecution led of several of the facts in issue in the trial. Consequently they were evidence from Thaier Sako, who had been wounded during the relevant to issues apart from Sako’s credibility. As the statements events that culminated in Carty’s death. Three days after the murder were relevant not on l y to Sako’s credibility the credibility rule in Sako declined to be interviewed by police. He was charged with s102 of the Evidence Act did not exclude the statements. As the Ca r t y ’ s murder the next day. Six weeks later he requested an evidence was relevant to Sako’s credibility and to some of the facts interview with police, which took place shortly afterwards. The in issue, it was relevant for a non-hearsay purpose. It therefore fell interview was recorded and about a fortnight later the appellant was within the exception to the hearsay rule provided by s60 of the charged with Carty’s murder. Some time afterwards Sako Evidence Act and was admissible as evidence of the truth of the participated in another recorded interview with police and two contents of the statements. weeks later the murder charge against Sako was dropped. In her dissenting judgment Gaudron J held that because the During the eighth week of the appellant’s trial the prosecution trial judge did not consider that Sako’s prior inconsistent statements granted Sako a conditional immunity from prosecution for any were potentially unreliable, his Honour erred in the exercise of his common assault or ‘any associated offence’ ex c e p t murder in relation power to grant leave to the prosecution under s38 of the Evidence to evidence he might give in the trial. By the time Sako was called Act to cross-examine Sako. Further, because the grant of leave as a witness in the trial itself it was apparent that his testimony necessarily resulted in the admission of potentially unreliable would be that his evidence of the events was based on what he had evidence that could not effectively be tested, leave should not have been told by others after those events. During his first full interview been granted. with the police he had stated that he was recalling his own observations. The trial judge granted Sako a certificate under s128 of the Evidence Act 1995 preventing any evidence he gave from

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Smith v The Queen – (2001) 181 ALR 354 Brownlee v The Queen (2001) 180 ALR 301 The appellant was tried for bank robbery in New South Wal e s . The applicant was tried on indictment in the District Court of Bank security photographs allegedly showing the appellant were New South Wales for the Commonwealth offence of conspiracy to tendered. The appellant denied being in the photographs. Two defraud the Commonwealth contrary to s86A of the Crimes Act 1914 police officers each gave evidence about previous dealings with the (Cth). In the trial s68 of the Judiciary Act 1903 (Cth), subject to s80 appellant and recognising him in the photographs. of the Constitution, applied to pick up the relevant provisions of the The majority, comprising Gleeson CJ, Gaudron, Gummow and Jury Act 1977 (N S W ) . Hayne JJ defined the fact in issue to be ‘Is the person standing trial Section 80 of the Constitution provides, inter alia, that ‘The trial the person who is depicted at the right-hand side of some of the on indictment of any offence against any law of the Commonwealth photographs tendered in evidence?’ shall be by jury…’. The majority held that the police conclusion that the appellant Although the applicant’s trial was conducted before a judge and was in the photographs was based on information similar to the ju r y , in accordance with the Jury Act, the applicant argued that his material available to the jury – i.e. the photographs and the trial was not ‘by jury’ within the meaning of s80 of the Constitution appearance of the appellant. Therefore, the police conclusion did for two reasons. The first was that two of the original twelve jurors not provide any logical basis for affecting the jury’s assessment of were discharged during the course of the trial in accordance with the probability of the existence of that fact. The jury had probably s22(a)(i) of the Jury Act and the (unanimous) verdict was of the spent more time in the appellant’s presence by the end of the trial remaining ten jurors only. The second was that in accordance with than the police had prior to it. For these reasons the police s54(b) of the Act the members of the jury were permitted to separate identification evidence could not rationally affect the assessment by after they retired to consider their verdict. the jury of the question in issue and did not satisfy the relevance The Court, comprising Gleeson CJ, Gaudron, McHugh, test in s55 of the Evidence Act 1995. Gu m m o w , Kirby, Hayne and Callinan JJ, applied contemporary In cases where the facts in issue extend beyond the narrow standards for the conduct of trial by jury to the interpretation of s80 question of whether the accused is the person depicted in a of the Constitution and held that neither of the challenged photograph the majority said identification evidence might be provisions of the Jury Act was contrary to s80. Each judgment relevant. One example is whether an accused owned a jacket of the distinguishes the challenged provisions from those in some States kind that the offender depicted in security photographs of a robbery which allow for majority verdicts. The Court affirmed its earlier was shown to be wearing. Another is where it is suggested that the decision in Cheatle v R (1993) 177 CLR 541 that such provisions appearance of an accused, at trial, differs in some significant way are contrary to s80 and any jury verdict for a Commonwealth offence from the accused’s appearance at the time of the offence. In the in any State or Territory court must be unanimous. latter case, evidence from someone who knew how the accused In their joint decision, Gaudron, Gummow and Hayne JJ said looked at the time of the offence, that the photograph depicted the that a real question remained as to whether it is consistent with s80 accused as he or she appeared at th a t time, would be relevant. But of the Constitution to continue a trial on indictment for an offence in these cases the opinion rule in s76 of the Evidence Act and the against a law of the Commonwealth where a jury of 12 has been general discretions under s135 and s137 might restrict reduced below 10, as provided in s22(a)(iii) of the Jury Act. ad m i s s i b i l i t y . Kirby J held that the police evidence was relevant but inadmissible as a lay opinion upon a subject about which the members of the jury were required to form their own opinion.

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appropriately trained and skilled advisers. This is not a simple task where there exists The Bar in mediation and ADR such a plethora of processes and definitions that are still not yet consistently accepted by By Sylvia Emmett ADR practitioners themselves.

The positioning of alternative dispute resolution (ADR) within the commercial Commercial contracts co m m u n i t y , statutory and regulatory use, the advent of conflict management systems Many commercial contracts now contain and the introduction of New South Wales Barristers’ Rule 17A raise some critically conditions making mediation a pre-requisite relevant issues for the Bar in relation to its involvement in the evolution of ADR. Sylvia to commencing litigation. This form of conflict Emmett provides an overview of areas of recent significant development in the uses of management is prevalent, for example, in the mediation and ADR, particularly some of the consequences of the introduction of regulation of infrastructure utilities (such as Barristers’ Rule 17A. She also examines some of the issues arising from these el e c t r i c i t y , telecommunications and rail) in developments insofar as they affect the Bar. accordance with Part IIIA of the Tra d e Practices Act 1974. In disputes concerned Recent developments in mediation and consideration about a process that is with access to monopolistic utilities, the ADR beyond the Bar untransparent, largely unregulated and ACCC approves regimes for resolution that There now exists a myriad of seemingly operating without universally involve an integrated form of negotiation, Commonwealth and State enactments dealing accepted, endorsed or enforceable standards mediation, expert determination and with mediation. In several instances, this of conduct. These concerns are particularly arbitration, often in the early stages without legislation compels mediation or other valid from a court’s point of view in la w y e r s . dispute resolution processes prior to the circumstances where it can make orders These regimes are directed to avoiding enforcement of rights, (for example, Fa r m compelling parties to participate in a process potential litigation and the involvement of Debt Mediation Act 1994 (NSW), Re t a i l that may not be the parties’ process of choice lawyers and as such are readily embraced by Leases Act 1994 (NSW), Native Title Act 1993 and may be a further hurdle to access to the the relevant industry users. Generally, the (Cth). In addition, the Federal Court and the co u r t s . courts will uphold their terms provided the Supreme Court have power to order parties to On one level, this lack of regulation and clauses are sufficiently certain. (see: Mo r r ow v mediation without the consent of the parties. transparency is a serious problem with Ch i n a d o t c o m [2001] NSWCA 82; but see The District Court and the Local Court have mediation as it currently stands – there ought also Elizabeth Bay Development Pty Ltd v powers of referral only with consent of the to be concerns about compulsory processes Boral Building Services (1995) 36 NSWLR parties. Mediation has long since been used without satisfactory supervision. 709; Hooper Bailie Associated Limited v in the Family Court, Land and Environment On another level, the flexibility and Natcon Group Pty Limited (1992) 28 NSWLR Court and Local Court where there are nearly confidentiality are the very reasons for the 19 4 . ) always emotional, financial or historical popularity of the process where the There is a move within organisational issues beyond the purely legal issues. commercial world is much more concerned industries to use ‘mediation’ as, almost, a Si m i l a r l y , conciliation has long been used in with cost effective, pragmatic dispute dispute resolution management process that industrial tribunals. resolution management. identifies how the issues of the dispute, once Below are some of the more relevant An origin of these concerns and tensions distilled, are most effectively managed and recent developments in the ADR area. 'ADR' may lie in s27 of the Co m m e r cial Arbitration resolved. For example, it may be that some has become the general term for processes by Act 1984 (NSW), whereby an arbitrator may, issues in a dispute are best resolved by which disputes are resolved outside the court with the consent of the parties, also act as consensual methods whereas other issues sy s t e m . ‘mediator’, although if so acting must observe may need either expert determination The new frontier for ADR is in conflict the rules of natural justice and not engage in (binding or non binding), arbitration, court av o i d a n c e and conflict ma n a g e m e n t , rather private conferencing. determination or a combination of the above. than just conflict res o l u t i o n . However, it is I would suggest it is unfortunate to The value of this type of mediation as a tool in the conflict or dispute res o l u t i o n aspect of describe such a process as ‘mediation’ where the crystallization of different parts of a ADR that has particular relevance for the it prevents such a fundamental step in a dispute and the mechanics for their future Bar and which intersects with and confronts mediation process as private conferencing. It resolution is now emerging as an effective the Bar's traditional role as that of advocate is the absence of any determinative or conflict management process. on l y . advisory role on the part of a mediator that enables use of such strategies. Once a Regulatory bodies Section 110K Supreme Court Act 1970 mediator trespasses into either the Regulatory and semi-regulatory bodies (N S W ) determinative or advisory role, the risk exists are increasingly using compulsory mediation From the NSW Bar’s point of view, of perceived or actual compromising of the or binding arbitration or both rather than the probably the most relevant recent amendment very neutrality that is central to the parties’ courts. To mention two prominent examples: is s110K Su p r eme Court Act 1970 (N S W ) , confidence in the use of mediation. the World Intellectual Property Organisation which came into force on 1 August 2000, Of course, parties may agree to hybrid or (well known as WIPO) manages disputes empowering the Court to order parties to varied processes. However, the integrity of the arising from the regulation and registration of mediation or neutral evaluation without their process selected is highly dependent on the internet domain names by way of binding consent. parties being able to make properly informed arbitrations that are often conducted on the There are concerns worthy of choices, perhaps necessarily on advice from papers only and thereby are significantly

25 P R A C T I C E M AT T E R S more cost effective; the National Registration and what is the time and cost of each • Facilitative (mediation, facilitation, Authority manages disputes in Australia of these processes? co n c i l i a t i o n ) between chemical owners and potential 5 What will fully-contested adjudication (There is a real debate in the ADR lessees of the use of the chemicals in involve for the client, including industry as to the overlap, if any, compounds by way of mediation and or ou t c o m e s ? between mediation and conciliation binding arbitrations. Also, s144 of the Le g a l 6 How does a barrister assess which of and the extent to which any advisory Pr ofession Act 1987 (NSW) provides for the processes is reasonably available role by the neutral is appropriate in disputes between clients and legal to a given client? mediation. The difficulty is enhanced practitioners to be referred to mediation, by the plethora of definitions both 7 What constitutes reasonable grou n d s although participation is voluntary. within Australia and internationally. for a belief by a barrister that a client There is currently a subcommittee of Electronic ADR has such an understanding of the the United Nations examining the There is even exploration into the alternative processes? manner in which mediations, expert UNCITRAL Rules in respect of this 8 What is the meaning of ‘the client’s best is s u e . ) determinations and arbitrations can be in t e r ests in relation to the litigation’? conducted electronically – some dispute ii In the Barristers Resolution Service 9 What is the level of understanding resolution systems involve mathematical the following alternative processes are req u i r ed by the client to excuse the formulae setting out ways in which, for identified: barrister from discussing alternative example, business to business disputes will • Ar b i t r a t i o n pr o c e s s e s ? be resolved. Again, the system is designed to • Expert determination/references omit the use of lawyers and litigation. 10 Are there any other ci rc u m s t a n c e s which excuse discussion of the • Early neutral evaluation or appraisal Barristers’ Rule 17A alternatives (e.g. urgency of • Me d i a t i o n Rule 17A states: interlocutory steps)? • Co n c i l i a t i o n A barrister must inform the client or the 11 Is discussion with the instructing ii i The Law Reform Commission purports instructing solicitor about the alternatives to solicitor suffi c i e n t to satisfy a barrister fully-contested adjudication of the case which to map these processes on a are reasonably available to the client, unless of a client’s understanding of the continuum from the least to the most the barrister believes on reasonable grounds al t e r n a t i v e s ? ad j u d i c a t i v e : that the client already has such an understanding of these alternatives as to The first question – what sort of • Ne g o t i a t i o n permit the client to make decisions about the alternatives for compliance are available – is • Me d i a t i o n cl i e n t ’ s best interest in relation to the one to which the Bar must give particular li t i g a t i o n . thought given that Rule 17A specifically • Neutral evaluation In light of the introduction of Rule 17A imposes a requirement on a barrister to • Co n c i l i a t i o n in January 2000, barristers need to address inform about ‘alternatives’. This may not be as • Expert advice and assessment the requirements of the Rule and their ability readily answerable as one might think. Even • Ar b i t r a t i o n to comply. the courts do not speak of the same One can readily envisage a scenario alternatives in their ADR referral sections. Ho w e v e r , whatever the appropriate where a disgruntled client who has lost a case For example, the Supreme Court (s110K alternatives and definitions, there has been a becomes aware of Rule 17A and alleges that Su p r eme Court Act 1970) and the District growing demand for an integrated approach to the barrister’s failure to comply resulted in the Court (s164A District Court Act 1973) speak the various processes. client being unaware or not understanding the of mediation or neutral evaluation, whilst the I would suggest that a barrister’s alternatives available and that, as a result of Federal Court (s53A Federal Court of obligation is to turn one’s mind to the this failure to inform, the client has lost the Australia Act 1976) speaks of mediation or intention of Rule 17A and its pragmatic opportunity to resolve the case on more arbitration. Below are three of the more compliance. The questions raised above favourable terms and should therefore be relevant of many categorisations, which simply illustrate the need for careful compensated. Even without identifiable further highlight the difficulties in consideration of the duty imposed. damage, the barrister may still be vulnerable determining which ‘alternatives’: Barristers in mediation to a professional conduct complaint. i National Alternative Dispute It is important for the Bar to consider the A number of questions arise for the Resolution Advisory Council role it will take in these sorts of consensual barristers regarding compliance with this (NADRAC) states that processes dispute resolution processes. The important provision: involving third party intervention fall point to stress is that alternative means of 1 What are all the alternative proc e s s e s into three broad categories (see dispute resolution are not just a vast set of ill- available to a client to fully-contested NADRAC Definitions March 97, and defined processes. ADR has come to be adjudication? unchanged by NADRAC Report perceived as an industry in itself closely 2 What are the el e m e n t s of each of these 20 0 1 ) : interwoven with litigation. pr o c e s s e s ? • Determinative (adjudication, It is obviously important that 3 What are the possible outcomes for a arbitration, expert determination, compromises reached through mediation be client in respect of each of these re f e r e n c e s ) achieved against a background of an processes? • Advisory (early neutral evaluation, informed understanding of a party’s rights and the remedies available through the courts, 4 What is involved in pre p a r a t i o n fo r case appraisal, conciliation)

26 P R A C T I S E M AT T E R S

together with an assessment of the likely co n s i d e r a t i o n . Si m i l a r l y , appointment to various panels can outcomes from a court. Solicitors are The absence of a desire of a party to go some way to identifying, adopting and effectively carrying out this role more and participate in that spirit (despite the statutory enforcing a standard of skill, experience and more often without recourse to the Bar. obligation to participate in good faith imposed conduct. However, the field of dispute In a mediation it can be very useful to by s110L of the Su p r eme Court Act 1970 resolution practice is far wider than that being have the benefit of the skill of an advocate. (NSW)) may be a relevant factor for a court to conducted by professionals and panels. Ho w e v e r , where that skill is perceived as the consider before it makes a mandatory order to Considerations for the future on l y constructive role for a barrister, then it is me d i a t e . It is apparent from the above that there is often not seen as adding sufficient value. The If barristers are to remain advocates only, barely an aspect of civil based interaction of ba r r i s t e r ’ s role should be seen more in terms rather than dispute resolution advisers (and rights within a broad legal framework that of ad v i s i n g the client in facilitating a all that those three words import), they need remains untouched by consideration, at least, settlement with which the client can live to appreciate the effect that that will have on of alternative means of dispute resolution. rather than a settlement with which th e the Bar’s traditional work and its perceived To the extent barristers play a role in the ba r r i s t e r can live. Mediation is not there to ability to participate in mediation, ADR and ways in which that interaction occurs, and in enforce a party’s legal rights, but to dispute management. light of the barrister’s duty under Rule 17A, manufacture a mutually tolerable resolution. Fi n a l l y , all this highlights the need for an barristers must equip themselves with the Consensual resolution will usually have a understanding of these various ADR knowledge and skill to participate validly in greater prospect of acceptance and endurance processes, their proper definitions and uses the ADR evolution. than adjudicated outcomes, because it fosters coupled with a universally accepted standard communication among parties and creative of conduct and accreditation. consideration beyond rights-based One of the practical difficulties with a parameters for dealing with conflict. universal standard has been the E d i t o r ’s note: Any members with There is a perception among solicitors administrative framework it would require comments on the workability of the and dispute resolution and the enforceability of any sanctions or current Barristers’ Rule 17A are invited practitioners that barristers licenses to be applied. Within professional to address them to the Association ‘If barristers tend to see the dispute in bodies, such as the Bar Association, many of (Philip Selth) or the Editor. terms of court outcomes only these concerns can be accommodated. are to remain and often ignore the wider issues which can lie at the advocates only, heart of a conflict. Failure by legal advisers to address rather than dispute these issues is a common Royal commissions and inquiries impediment to settlement. resolution advisers Mediation provides By Peter Garling S.C. parties with an opportunity to (and all that those identify and explore these Introduction facts and apply the relevant law3. relevant personal factors in a In 1982 L A Hallett, the author of the Commissions are not carried out as a three words import), confidential forum where well-known text1, excited interest when function of any judicial office but may be voluntary participation is he said: carried out by a judge. They are part of the they need to founded in good faith. Whilst Royal commissions and boards of executive functions of government and are the notion of ‘good faith’ ha s inquiry (and like bodies) are well known subject to the effective control of the appreciate the difficulties for lawyers in and established organs of Government. Executive. That control is exercised by, terms of certainty, it is a Nevertheless, it is probably accurate to inter alia, requiring the commissioner to effect that notion that is well understood state there is, in general, little known deliver a report by a fixed date, providing and embraced by parties about them. In particular, little is known defined terms of reference which can be that will have participating in a mediation of their legal status in Government and altered by executive action and also by process and is a fundamental the rules (or lack of them) which providing the funding for a commission. regulate them. on the Bar’s cornerstone to the success of In addition to royal commissions, that process – it is also one of It may be surprising to members of the which are usually established for a single traditional work.’ the distinguishing features Bar that a commission of inquiry2 is an purpose, there has been an expansion, between mediation and organ of Government, but reflection on the certainly in New South Wales, in recent structured settlement nature of a commission, the method of times of other forms of inquiry. These may negotiations. It is a to o l to facilitate establishment and the purpose would range from what are effectively standing constructive discussions and is not intended suggest that Hallett’s statement is commissions of inquiry, such as the for use as a weapon between parties. undoubtedly correct. Independent Commission Against Similarly co n f i d e n t i a l i t y of discussions is a Commissions of inquiry are not Corruption, the State Crime Commission tool which should facilitate full and frank functions carried out in the exercise of the and the Police Integrity Commission, to disclosure and discussion of issues thereby judicial power of the Commonwealth, but single purpose special commissions of offering parties the best opportunity for may nevertheless involve the inquiry such as the McInerney Inquiry teasing out resolution options for commissioner acting judicially to find into the Glenbrook Rail Accident.

27 P R A C T I C E M AT T E R S

Commissions of inquiry have been an these Acts provide for mechanisms for the appearance before a commission of established feature of Government in summonsing of witnesses, the compulsory in q u i r y , nor any absolute right to Australia. The first federal royal production of documents, the method of participate throughout the whole of the commission appears to have been taking evidence from witnesses, the in q u i r y . All appearances at a commission conducted in 1908 by Justice Hood of the obligation of witnesses to answer of inquiry are by leave of the Supreme Court of Victoria, who was questions, privileges against self- co m m i s s i o n e r , which can be granted or charged to conduct the Royal Commission incrimination and powers of contempt. withdrawn at any stage of the inquiry. into Insurance. One of the earliest royal In NSW, s7 of the Royal Commissions Nature and purpose commissions was one conducted by the Act provides a further limitation on an The principal purpose of a chief justice of the High Court of appearance: it provides that a person must commission of inquiry is to gather Australia, Griffith CJ in 1918. It was an be ‘substantially and directly interested in information for the Government. That inquiry into the war. It finished within one any subject-matter of the inquiry, or that process of information gathering may be we e k . the person’s conduct in relation to any for the purpose of a review of, or the It is substantially outside the scope of such matter has been challenged to the formulation of, government policy, but is this article to discuss any particular pe r s o n ’ s detriment’ before being granted more usually directed towards a the standing commission of inquiry. Rather, the right to appear. This statutory test investigation of a particular incident and the purpose of this article is to provide the appears to reflect the practice of those establishing all of the factual readers with some assistance when they commissions which do not have any circumstances surrounding that incident. receive a brief to appear at a commission statutory provisions dealing with Oc c a s i o n a l l y , and perhaps more frequently of inquiry. appearances. It has long been the practice in recent times, the terms of reference may for a commissioner to require a person Establishment call for recommendations on policy seeking leave to appear to establish that Es s e n t i a l l y , there are two bases by questions as a result of the factual findings the person has a particular interest in the which a commission of of a particular incident5. inquiry which requires leave to appear. It inquiry can be established. The very nature of a commission of is not sufficient for the person to be The first of these is by the inquiry means that it performs an ‘There is often interested in the outcome in the same way exercise of the Crown’s investigatory role and involves an as the broader public may be. prerogative to issue Letters inquisitorial of proceeding, rather a tendency by Once granted leave to appear, a Patent for a commission of than an adversarial style. This has a pe r s o n ’ s entitlement to participate may be in q u i r y . Sir Owen Dixon number of consequences, including: commissioners terminated at any time. As well, the ability discusses the historical • the fact that not all investigations to cross-examine a witness will depend basis for this source of are made through the process of to be very upon approval by the commissioner. power to issue Letters public hearings; Tra d i t i o n a l l y , all witnesses are called by Patent in his judgment in protective of the • the commissioner may chose to counsel assisting the inquiry. Counsel McGuinness v The Attorney investigate certain matters and not assisting ought to elicit all of the relevant General of Vic t o r i a 4. This integrity of to investigate others; and evidence. But other participants may wish basis is also recognised in • the commissioner has control over to elicit additional evidence, or else to New South Wales in the their inquiries.’ the manner and style of hearings or challenge the evidence of the witness. The Royal Commissions Act other information gathering commissioner is entitled to control this 19 2 3 , which in part pr o c e s s e s . process, and commonly does. regulates procedures before a royal Counsel appearing at a commission of commission, but which does not provide a A number of commissions of inquiry inquiry need to be sensitive to the fact that statutory basis for the issues of Letters have used methods of information leave to appear does not give them an Pa t e n t . gathering in public other than traditional open-ended role in the conduct of the The second basis for the hearings. Seminars and meetings of a in q u i r y . establishment of a commission of inquiry range of affected bodies and individuals, is by the issue of Letters Patent, which are which allow a flexible debate, particularly Procedural fairness authorised by statute. One example can be on policy formulation questions, are now A commission of inquiry has found in s1A of the Royal Commissions regularly being used to assist a obligations of procedural fairness, the Act 1902 (Cth), which provides a statutory commissioner with the inquiry. content of which may vary from inquiry to source of power for the issue of Letters It will therefore be necessary for a in q u i r y , and which will depend upon the Patent by the governor-general, providing barrister when briefed to appear at a nature and subject matter of the inquiry, that they ‘relate to or [are] connected with commission to read the terms of reference as well as the way in which an inquiry has the peace, order and good government of and determine the particular purpose of pr o c e e d e d 6. the Commonwealth, or any public purpose the commission, so as to provide a base for In Mahon v Air New Zealand [1984] 1 or any power of the Commonwealth’. consideration of the role or interest of the AC 808, the Privy Council, when dealing Standing commissions of inquiry will cl i e n t . with a royal commission, held that the have particular Acts of Parliament, which Appearance before a commission of obligations of natural justice were: establish them and control the conduct of inquiry The first rule is that the person making th e m . a finding in the exercise of such a An individual has no absolute right of Typ i c a l l y , although not universally, jurisdiction must base his decision upon

28 P R A C T I C E M AT T E R S

evidence that has some probative value. That said, in general terms, it will be a different inquiry. The second rule is that he must listen contempt, or a specified statutory offence, Conclusion fairly to any relevant evidence for a witness to decline to attend and give Since a commission of inquiry is not a conflicting with the finding and any evidence, produce documents or otherwise judicial proceeding akin to party and party rational argument against the finding fail to comply with properly made orders that a person represented at the inquiry, litigation, it is critical that counsel briefed of any commissioner. whose interests (including in that term to appear at such an inquiry give careful career or reputation) may be adversely Judicial review consideration to at least the matters affected by it, may wish to place before Opportunities for judicial review of the mentioned briefly in this article in order to him or would have so wished if he had findings of a commission of inquiry are ensure that they best serve their client’s been aware of the risk of the finding fe w . Ma h o n ’ s case is a well known but rare in t e r e s t s . being made.7 example, and even that case was limited to It is now commonplace for a review of a small part of the royal 1 L A Hallett, Royal Commissions and commissions of inquiry to circulate, either co m m i s s i o n e r ’ s findings. Boards of Inquiry (Law Book Company, in advance of the conclusion of evidence Ho w e v e r , there may be a greater 1982), p. ix. or else in advance of final submissions, a opportunity to seek judicial review 2 It is convenient to use the term list of potential findings critical of a involving other matters going to the heart commission of inquiry as a generic one person or body which might be made, and to encompass all forms of inquiries. I of a commission of inquiry. Although not will refer to several of the different to give to the persons represented before it dealing with a commission of inquiry, the types of inquiries separately as an opportunity to consider those potential type of challenge mounted to the appropriate. findings and deal with them. appointment of Mathews J to conduct a 3 See Wilson v Minister for Aboriginal If no indication is given that such a ministerial inquiry in Wilson v Minister for and Torres Strait Islander Affairs (1996) course is going to be followed, it is Aboriginal and Tor r es Strait Islander 189 CLR 1. appropriate for counsel appearing for a Aff a i r s 9 is one course which may ground 4 (1940) 63 CLR 73 at 93-102. party to raise with the commission the judicial review. R v Winneke; ex parte 5 The terms of reference for the current question of what practice it proposes to Ga l l a g h e r 10 is an example of the use of the HIH Royal Commission are a good follow in the circumstances. example of this trend. The can prerogative writ in attempt to subject a conveniently be found at Powers of compulsion royal commission to judicial review with www.hihroyalcom.gov.au. Most commissions of inquiry will have respect to the ordinary functioning and 6 See Russell v Duke of Norfolk [1949] 1 the requisite powers to compel the conduct of a commission. All ER 109 at 118; Maksimovich v What is clear is that there is a Walsh & anor (1985) 4 NSWLR 318 at attendance of witnesses, the giving of 327, 337. evidence and the production of reluctance on the part of courts to interfere 7 at 820F - H. documents. These powers derive from a with the functioning and conduct of commissions of inquiry, and it would be 8 See s6A of the Royal Commissions Act variety of statutes which affect the conduct 1902. of commissions of inquiry. unwise for counsel appearing at any 9 (1996) 189 CLR 1. It is essential for counsel briefed to commission to rely upon the availability of satisfy themselves as to the nature and judicial review as if it were akin to an 10 (1982) 152 CLR 211. extent of those powers. Some statutes appeal as of right. 11 See s6 of the Royal Commission Act Some statutes contain privative 1923 (NSW) and s11 of the Special remove the privilege against self- Commissions of Inquiry Act 1983 8 clauses with respect to proceedings in c r i m i n a t i o n , but this is usually (NSW). against commissions and commissioners. accompanied by a statutory prohibition 12 See s7 of the Royal Commissions Act. against the use of the evidence and The provisions of s36 of the Sp e c i a l material in proceedings against the person Commissions of Inquiry Act 1983 (NSW) is concerned. Again there may be limitations a good example of this. to this prohibition and counsel ought be Protection and immunities careful to be satisfied what the prohibition In New South Wales, commissioners is and how, if at all, it is limited. are provided by statute with the same Questions of contempt also vary from protection and immunities as are given to commission to commission. There is often a judge of the Supreme Court11 . In the a tendency by commissioners to be very Commonwealth sphere, a royal protective of the integrity of their commissioner has the same protection and inquiries. This can lead to an over- immunity as a judge of the High Court of reaction on the part of a commissioner to Au s t r a l i a 12 . adverse publicity about the inquiry or Ho w e v e r , the position may be different evidence which a witness has given. When for witnesses and practitioners who may confronted by such an occasion, it is not enjoy the same protection as in a incumbent upon counsel to know what are court. The Commonwealth legislation the particular powers of contempt which provides for this, but not all State the commission has, and to what extent legislation does. Counsel will need to the commissioner (as opposed to a court) carefully check the position for each can deal with any such circumstance.

29 I N T E R V I E W Ruth McColl S.C: Reflecting on her term in office

An interview with Ruth McColl S.C. So f r o n i o u : What were the highlights at the conclusion of her presidency. of your term? McColl S.C.: There were a number So f r o n i o u : Thank you very much for of highlights. There was the Bar Strategy agreeing to be interviewed, Ruth. This meeting which was some time in the month you’ve concluded your two-year planning but which finally took place in term as president of the Bar Association May 2001. The entire Bar Council, and chaired your final Bar Council together with Heads of Committees and meeting. What are your thoughts as you members of the Regional Bars met and reflect on that? considered in great detail the future of McColl S.C.: The final Bar Council the Bar in New South Wales. I reported meeting was a very long and trying on that in various editions of Bar Brief. meeting because it was a meeting at One of the outcomes of that meeting was which we gave final consideration to a proposal that led to the introduction of some of the notifications about compulsory continuing legal education bankruptcy made in accordance with the for all members of the Bar. It’s a proposal recent amendments to the Le g a l which by and large appears to have Pr ofession Act 1987. Most presidents received majority approval, with the glide out of office - I think I feel exception of the very few members who somewhat as though I left have written to me opposing the idea. office with mortars Over all there has been very little exploding around me. criticism of the idea and instead a great ‘...I feel somewhat So f r o n i o u : Did you deal of pleasing acceptance of it. have the chance in the So f r o n i o u : Other highlights? as though I left midst of all of that to McColl S.C.: I think the indigenous actually reflect that it was legal strategy that we launched through then, not only did we not condone it, but, office with your last meeting? Was the Equal Opportunity Committee, indeed, we deplored it and would do there any sense of chaired by Michael Slattery Q.C., has everything we could to ensure that the mortars exploding ce r e m o n y ? really been a tremendous achievement confidence of the community was McColl S.C.: We for the Bar. Also, of course, the Olympic restored in the Bar and in the legal around me.’ were working so hard that Pro Bono Scheme. Those matters really profession generally. there was no sense of added in varying ways to the Bar and, in So f r o n i o u : Do you think that the ceremony but at the end of pa r t i c u l a r , its contribution to the Bar has clearly sent that message to the the meeting the co m m u n i t y . co m m u n i t y ? councillors said some nice things which So f r o n i o u : Could we turn now to the McColl S.C.: I think we have done were very pleasing. challenges you experienced during your that to a certain extent so far, but the task So f r o n i o u : Will you miss them? term as president? isn’t over yet. I also think we needed to McColl S.C.: And I told them I McColl S.C.: Well the most obvious make it clear that it is only the would miss them. one was the issue which blew up this year notification amendments to the Legal So f r o n i o u : Can you now remember allegations about the way certain Profession Act and regulations that have your feelings on being appointed? members of the Bar appeared to have made it possible for us to actually know McColl S.C.: Frankly it was so long used bankruptcy procedures as a means what had happened. Previously we had ago now that it is very difficult to of avoiding their obligations to the been unaware of the conduct alleged remember my feelings on the exact day. I Commissioner of Taxation and indirectly against particular barristers because we recall that I felt tremendously happy and to the community. could not obtain that information from the very honoured and I had a great sense of So f r o n i o u : A huge challenge. Commissioner of Tax a t i o n the responsibility that went with the McColl S.C.: I believe that was the (notwithstanding our requests, I might po s i t i o n . biggest challenge that I have faced, and, add) and it was impossible for us to sit in So f r o n i o u : Did you have any prior indeed, that the Bar has faced, for many every court in New South Wales, the expectations of the office? years. I can’t think of anything within Federal Court or the Local Court in case McColl S.C.: Only those that were living memory that has brought the Bar something emerged about a member of reflected in my last answer. I expected into such disrepute. It was an incredible the Bar we might regard as requiring the role to involve a great deal of challenge to work out how to deal with in v e s t i g a t i o n . commitment in terms of time and that has that in a way which made it very clear to So f r o n i o u : Other challenges? certainly been borne out. I envisaged that the community at large that if the McColl S.C.: Another obvious one it would involve a lot of responsibility conduct alleged had indeed occurred, was the issue involving WorkCover and and that too has been the case.

30 I N T E R V I E W

the various aspects of legal reform, which particular issues affecting the Bar As s o c i a t i o n ’ s attitude and responses to have had the effect of limiting damages to ge n e r a l l y , or particular issues affecting the issue. Then there are a variety of plaintiffs. That has obviously had a members of the Bar as individuals. That other issues in respect of which one can potential effect on our members and we has always been the role of the Bar have tried to deal with that as effectively Council and it has always carried out that as possible. role diligently, in my experience. So f r o n i o u : What specific coping So f r o n i o u : Considering now the strategies did you employ during the last length of your term as president. Is two two years in order to meet the worst of years too long or not long enough? Also, those challenges? Was there anything has it effectively become a full time job? that was of particular help? McColl S.C.: It is not a full time McColl S.C.: I suppose just the job. I couldn’t have done it without strategies I use to cope with life running a practice at the same time, ge n e r a l l y . These are mainly the support otherwise I would have been virtually of close friends, running and maintaining without any income at all! It is not too a sense of humour during the worst of long, although my view has fluctuated on ti m e s . this point. I used to think that two years So f r o n i o u : Could you tell us how was too long in terms of the succession would you characterise the role plans of those who come behind, but I performed by the Bar Council? now really do think that it takes almost a McColl S.C.: The Bar Council is a year for the Bar Association president to representative political unit insofar as it be recognised, particularly in the public represents the whole of its electorate, arena and then to consolidate that even though in practice recognition over the next year. It has not all members of the been particularly in this second year that ‘...I believe electorate necessarily vote. that level of recognition has borne fruit in We get almost a 50 per terms of being sure that we obtain decent that it is important cent turnout, which is media coverage of the matters we want to pretty good without put forward, for example with respect to for the public compulsory voting. The the issues about bankrupt barristers and Bar Council reflects the tax and Wor k C o v e r . We received pretty say fairly generally that our views have to understand diversity of the Bar. Its good coverage, both this year and last been very much at odds with those of the members bring their ye a r , with respect to issues of particular media. An example of that is the law and where the Bar individual views to bear in interest to the press, such as mandatory order issue. Nevertheless they do still dealing with all of the sentencing. I think it has really helped tend to publish what we say. In the most is coming from.’ issues that come before that there has been that level of recent controversy about gang rape the Bar Council for its re c o g n i t i o n . sentences, the media published our view consideration. The Bar So f r o n i o u : So if the second year about the necessity of maintaining the Council members also bring to the Bar serves to consolidate a president’s term, separation of powers. I do think that Council their experience derived from would you want a third? certain elements in the media appreciate the particular committees that they sit on. McColl S.C.: No, I don’t think so. the significance of what we regard as Almost every member of the Bar Council Three years is excessive. I think that two issues which are fundamental to the rule is on one or other of the professional is just about right. of law and will often publish the Bar’s conduct committees, for example. It is So f r o n i o u : Since you refer to press views with respect to such matters. very important for Bar Council to receive coverage, do you think the media So f r o n i o u : Having said that, is the benefit of that experience and to have accurately reflect the Bar and its position there anything that the Bar could or that range of views expressed when on issues and its concerns? should still do to further improve the dealing, for example, with the Barristers’ McColl S.C.: It depends upon the lines of communication with the media? Rules and their proper application. issue you are dealing with. Wit h McColl S.C.: I think that it is Obviously the Bar Council plays a very mandatory sentencing I thought the always important to make sure that the important role and one that is essential to media was very positive and supportive. I media are aware that the lines of the continuity of the Bar. think that was an issue that they had communication are open. I have spent a So f r o n i o u : Has the role fluctuated themselves finally awoken to as being of lot of time in the last two years trying to or altered at all in your view? grave concern, so we obtained a lot of ensure that the Bar communicated its McColl S.C.: I don’t really think so. very good publicity about that. Obviously views on important matters through the I have been a member of the Bar Council with regard to the issue of bankrupt media, whether through press releases, now for about 20 years and essentially barristers and tax, that was not reported letters to the editor, columns in various the role has remained the same. It is a as favourably and I wouldn’t have newspapers and through radio interviews democratic institution that debates the expected otherwise. But at least even and television appearances. This is issues, whether about law reform, there the media did publish the Bar because I believe that it is important for

31 I N T E R V I E W

the public to understand where the Bar is There is a much stronger representation McColl S.C.: I think that the answer coming from. I think that the best way for in that newer level, and that encourages to the first question is probably no, but is them to see that is either to hear, read or me in the belief that women are anybody? One secret of good organisation see directly what the Bar is saying. increasingly coming to the Bar. One of So f r o n i o u : On a personal note, did the reasons that there is a relatively small you grow up in Sydney? number at a more senior level is because McColl S.C.: Yes . a number of women barristers have been So f r o n i o u : Are you an only child or plucked out of the Bar to become judges. do you have brothers or sisters? I think the proportion will increase. I McColl S.C.: I am the second would like to see it increase. I would da u g h t e r , I have an older sister. have preferred, like most people, for the So f r o n i o u : And who or what percentage of female barristers to influenced or inspired you to study law increased more rapidly, rather than just and in particular to become a barrister? creeping up from ten to the current McColl S.C.: In terms of studying overall figure of 13 per cent in the last la w , it was a teacher at Willoughby Girls decade or so. I don’t believe it is a High who planted the idea in my mind function of anything inherent in the Bar, and it was a decision I made in a though. I think it is just a function of relatively impromptu way during people getting in there and doing it. Orientation Week at Sydney University. I So f r o n i o u : What would you list as decided that doing only an Arts degree the most important qualities possessed by wasn’t very vocationally positive, so I a good barrister? changed my course to Arts/Law. I McColl S.C.: A capacity for majored in History. As to extraordinary hard work, patience, being coming to the Bar, it was a a good communicator, obviously being ‘I think that the function of having been a intelligent and as logical as possible. solicitor for a few years So f r o n i o u : ‘Patience’ is an current position and having instructed interesting inclusion. Where does that counsel in a variety of quality come in? of Australia’s courts. I decided that it McColl S.C.: Patience in dealing would be a better with a wide variety of people, some of is to apply a lot of discipline in starting Indigenous application of all that hard whom are intolerant of the whole notion one task and finishing it before you move work I had done at that they need to be in a court situation on to the next one. Another is to make community is a university if I went to the and that it is the way to resolve their sure that you distribute your time Bar and actually argued particular dispute. Patience also with the rationally between tasks rather than national shame...’ about the relevant points way your opponent is presenting the going overboard on one in particular. of law, rather than briefing argument, which you may believe is So f r o n i o u : What are your future other people to do it. nothing but a time-wasting exercise. goals now that your term as president is So f r o n i o u : Have you maintained So f r o n i o u : When you do get the co m p l e t e ? your interest in history? time, what are your particular interests McColl S.C.: Just to continue the McColl S.C.: In the last two years it outside of work? pursuit of being a barrister to the best of hasn’t really been easy to maintain any McColl S.C.: Seeing friends, my ability and doing the best for my interest other than Bar issues, but yes, I theatre, ballet, running and swimming. clients that I can. am still interested in history. I really love Oh, also reading - I had almost forgotten So f r o n i o u : You are enjoying the reading and I just haven’t had enough about that because I haven’t done it for so jo b ? time in the last couple of years, except for long. But I promise myself that I will. McColl S.C.: Ab s o l u t e l y ! reading about Bar issues. So f r o n i o u : Could you nominate your So f r o n i o u : What advice would you So f r o n i o u : Did you enjoy best virtue and your worst habit? give to those just starting life at the Bar un i v e r s i t y ? McColl S.C.: (Laughs) Well I think or who may be thinking of taking the McColl S.C.: I am sure I did. It is a that my best virtue and my worst habit plunge? long time ago. are probably the same: a capacity for McColl S.C.: Remember not to So f r o n i o u : Would you care to hard work and constant implementation allow hard work to displace quality of comment upon the relatively small th e r e o f . life. In other words maintain some number of female barristers? So f r o n i o u : Do you think that is a balance and perspective on being a McColl S.C.: I am reasonably bad habit? ba r r i s t e r . comfortable in saying that the numbers McColl S.C.: It can take over your So f r o n i o u : What about those are increasing. While, over all, women life! ‘middletons’ for whom the years can seem comprise only 13 per cent or so of the So f r o n i o u : Are you naturally well to blur together or even to stand still NSW Bar, if you look at the ‘under-f i v e s ’ , organised? Do you have any secrets of altogether? women constitute about 25 per cent. good organisation that you care to share? McColl S.C.: Well I would

32 I N T E R V I E W encourage ‘middletons’ as you describe outcomes for Indigenous communities. McColl S.C.: Some of the issues are them to realise that in fact the years So f r o n i o u : Similar to the way in si m i l a r . Some of the issues concerning aren’t standing still; that there is always which the common law of property has the Australian Competition and much opportunity to improve and that recognised traditional notions of they should make such improvement connection to land? their goal. McColl S.C.: More in the context of So f r o n i o u : Looking ahead, is there criminal law. Recently I attended the any particular reform or change in the Garma Festival in Arnhem Land and that role of president or the Bar Council that was the main topic; namely, how you would like to see? traditional law could work with European McColl S.C.: It is hard to identify La w . The aim is for members of the any particular reform. I actually think if I Indigenous community not to feel such was to look to any change it wouldn’t be outsiders in a system which is basically in their roles but it would be in terms of leading to incarceration of Indigenous encouraging members of the Bar to take people in foreign circumstances, advantage of the opportunities which are frequently leading, as we know, to tragic there to communicate directly with the re s u l t s . president or the Bar Council about issues So f r o n i o u : In which capacity did they feel are important, rather than you attend that Festival? bottling up their concerns. In other McColl S.C.: I went in my capacity words, it would be great to see improved as President of the Australian Bar communications. That was something I As s o c i a t i o n . encouraged from the start and I was So f r o n i o u : Which is the role which disappointed that there was continues - comparatively little feedback during the McColl S.C.: Until February. two years. So f r o n i o u : What matters do you So f r o n i o u : You have from time to deal with in that role? In particular do time spoken or written about your interest you see any scope for the formulation for in Indigenous matters. Could you tell us a a national legal profession? little about that? McColl S.C.: The idea of a national McColl S.C.: I am interested in profession is something members of the Consumer Commission, for example, are matters affecting Indigenous legal profession in each of the States and very similar; not particularly because of communities and youth. That has been a Territories have been working towards for the Bar so much as the ACCC’s own long term interest of mine. One of the some years, not just through approach. The issue about bankrupt first things I did in my first year at organisations like the Australian Bar barristers and tax was one which didn’t University was to become involved in Association but obviously also through really affect the other Bars as much as Indigenous issues as they were then on the Law Council and initiatives such as ours, but it was nevertheless encouraging the political agenda. I think that the the Travelling Practising Certificate and to find that interstate Bars all adopted a current position of Australia’s Indigenous mutual recognition. The Australian Bar notification regime very similar to the one community is a national shame and I Association, while a relatively low-key that was introduced in the New South believe that we must try to do as much as organisation, nevertheless is incredibly Wales Legal Profession Act, again to we can to redress it. In terms of the Bar important in providing a forum for ensure that the public could be confident we have tried to do that through our communication between the Bars about that such issues would be adequately Indigenous Legal Strategy. In terms of a developments in each State. We often addressed should they manifest national approach to matters affecting find that the relevant issues are the same themselves in any of the other States. I Au s t r a l i a ’ s Indigenous communities, I in each of the States. To the extent that think that was a very important action chair the Law Council’s Indigenous Legal we strive to have model Rules for the Bar, and it has highlighted the importance of Committee. That committee is for example, it is vital for each State or having an organisation like the formulating the Indigenous issues that Territory Bar to contribute its views Australian Bar Association, which the Law Council will address. In the first regarding the relevant issues. That is a enables such a speedy response through instance we are again taking a practical very important aspect of the work of the joint action. approach in encouraging members of Australian Bar Association, as of course So f r o n i o u : What organisation will Indigenous communities to pursue legal are the Australian Bar Association you be chairing after February 2002? studies and encouraging them through Co n f e r e n c e s . McColl S.C.: I think at the end of the early years of practice. On a So f r o n i o u : Have you therefore February I will truly be a feather duster. principled approach I think we will be found that the challenges you faced as So f r o n i o u : Well Bar News th a n k s looking very shortly at the issue of President of the New South Wales Bar you for your time today and for your traditional law and how, if at all, that can Association have been mirrored in your immense contribution to the NSW Bar. be reconciled with the European legal role as ABA President, or are there So f r o n i o u : Thank you. system with a view to ensuring better separate concerns?

33 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE Does Chapter III of the Constitution protect substantive as well as procedural rights? by The Hon Justice M.H. McHugh AC High Court of Australia. Delivered at the New South Wales Bar Association, 17 October 2001.*

Sir Maurice Hearne Byers was one of the greatest advocates government matters. In his last constitutional case, he got a that the Australian Bar has produced. He was admitted to the majority of the Court to hold that Chapter III of the Constitution New South Wales Bar in 1944 and took silk in 1960. He was prohibits a State legislature from investing its courts with any So l i c i t o r -General of Australia from 1973 to 1983. He was function or jurisdiction that might impair public confidence in President of this Bar in 1966 and 1967. those courts while exercising federal jurisdiction. That was in Sir Maurice excelled in all fields of advocacy. But his great Kable v Director of Public Prosecutions (NSW)6. power of analysis, all round knowledge of the law and It seems fitting, therefore, that the subject of this Address conversational style of advocacy combined to make him most should concern Chapter III of the Constitution and the vexed effective when arguing points of law in an appellate court. He was question as to the extent that it protects substantive rights. I an extraordinarily persuasive and lucid advocate. His arguments should, however, lodge a caveat of the kind that any serving judge had a hypnotic effect on his opponents as well as on judges, should lodge when giving a public lecture about law7. The views frequently forcing or inducing his opponents to argue cases that I express are the product of my own reading and reflection. within the legal framework that Sir Maurice had For the most part, they have not had the advantage of counsel’s impressed on the case. He was my opponent in the argument that, so often, induces a judge to depart from any first High Court appeal I argued1. The subtlety and provisional view that he or she may hold about the law. plausibility of his arguments induced me, as an Chapter III: ‘The Judicature’ inexperienced junior of just four years standing, to Chapter III of the Constitution contains 10 sections, ss71-80. spend 90 per cent of my time combating his Among other things, those sections create the federal judiciary, arguments instead of concentrating on my primary delineate the appellate and original jurisdiction of the federal argument – which the Court ultimately accepted. It ju d i c i a r y , and provide for trial by jury in indictable matters. Of taught me the valuable lesson that, as an advocate, these ten sections, the most fundamental is s71. It declares that you cannot let your opponent dictate the structure the judicial power of the Commonwealth is vested in the High of the argument. Court ‘and in such other federal courts as the Parliament creates, Whatever field of law he was arguing, Maurice and in such other courts as it invests with federal jurisdiction’. Byers mastered it. Those who think of him as The Court has often said that it is practicably impossible to give primarily a constitutional lawyer should be an exhaustive definition of judicial power8. But a ‘widely- reminded that, as a junior of five years standing, he accepted statement’ is that of Griffith CJ in Huddart, Parker & Co had a remarkable win in the High Court in a Pty Ltd v Mooreh e a d 9 where he said that judicial power means: criminal case. In Gr eene v The King2, he persuaded a majority of the Court that it was no t an offence the power which every sovereign authority must of necessity have to against the law of false pretences to falsely pretend to the buyer decide controversies between its subjects, or between itself and its of goods that the accused intended and was in a position to subjects, whether the rights relate to life, liberty or property. deliver them within a specified period. The majority held that a On its face, Chapter III is merely a blue-print for the judicial representation of the existence of a present intention to perform a arm of government. However, interpretation of Chapter III has promise was not a representation of an existing fact. revealed a number of procedural and substantive due process Un d e r s t a n d a b l y , the legislature quickly reversed the decision. rights within its provisions10 . At an early stage of federation, the But it is as one of the greatest constitutional lawyers in the High Court declared that s71 exhaustively defines the bodies that history of Australia that Sir Maurice will always be remembered. can exercise the judicial power of the Commonwealth. They must In 1985, when the federal government announced the formation be courts that meet the requirements of ss71 and 72 of the of the Australian Constitutional Commission, he was the natural Constitution. By 1918, it had been established that federal choice as its chairman. As solicitor-general, Sir Maurice judicial power could not be exercised by the comptroller-g e n e r a l appeared in 44 constitutional cases, winning 37 of them. Among of customs11 , the Inter-State Commission12 or a court or tribunal his wins were the Tasmanian Dams Case3 and the Sea and created by Federal Parliament whose members were not Su b m e r ged Lands Case4. But his success as a constitutional appointed in accordance with s72 of the Constitution13 . That view advocate did not cease upon his retirement as solicitor-g e n e r a l . of Chapter III has been maintained. And as Quick and Garran At the private Bar, he successfully argued the ACTV Case5 wh i c h point out, ‘the legislature may ov e r r u l e a decision, though it may established that, by necessary implication, the Constitution not rev e r s e it ’ 14 . protects freedom of communication concerning political and Procedural rights Few would now doubt that Chapter III protects some * The inaugural Sir Maurice Byers Lecture was delivered by Sir procedural rights. The distinction between procedural and on 30 November 2000 and published in Bar News Summer 2000/2001

34 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE

substantive rights is not always easy to draw. In discussing said that Commonwealth legislative power does not extend ‘to the procedural rights, I may occasionally be referring to what others making of a law which requires or authorises the courts in which regard as substantive rights. Speaking generally, a procedural the judicial power of the Commonwealth is exclusively vested to right is a right of access to a method of enforcing substantive exercise judicial power in a manner which is inconsistent with rights and duties15 . A number of such procedural rights are the essential character of a court or with the nature of judicial evident in Chapter III. Thus, s73 of the Constitution provides for po w e r ’ 28 . a right of appeal against the orders of the supreme courts and Thus, Gaudron J in Re Nolan; Ex parte You n g 29 , emphasised courts exercising federal jurisdiction. And as Deane and that the protection that Chapter III gives to the judicial process Ga u d r o n JJ have said16 , the effect of ss75(iii) and 75(v) of the in c l u d e s : Constitution is to: open and public inquiry (subject to limited exceptions), the application ensure that there is available, to a relevantly affected citizen, a Chapter of the rules of natural justice, the ascertainment of the facts as they are III court with jurisdiction to grant relief against an invalid purported and as they bear on the right or liability in issue and the identification exercise of Commonwealth legislative power or an unlawful exercise of, of the applicable law, followed by an application of that law to those or refusal to exercise, Commonwealth executive authority. fa c t s . Another procedural right in Chapter III is the right to a jury But what of such procedural matters as discovery and where a person is tried on indictment17 . interrogatories, the obtaining of particulars and the issuing of Ho w e v e r , apart from the s75(v) right to obtain prerogative subpoenas? What of matters that straddle the borders of relief against Commonwealth officers, these procedural rights substance and procedure such as the right to a fair trial, the may be legislatively restricted without contravening Chapter III. presumption of innocence, the right of an accused to refuse to Thus, the Parliament may require serious offences to be tried give evidence, the onus and standard of proof in civil and su m m a r i l y , thereby avoiding jury trials. Since 1984, most appeals criminal cases and the use of deeming provisions and to the Court require a grant of special leave18 , and there is no presumptions of fact? Can the Parliament abolish or change these absolute right of appeal to the High Court. rights and matters? Would legislation purporting to do so be an invalid attempt by Parliament to dictate and control the manner Gradual acceptance that Chapter III protects due of exercising the judicial power of the Commonwealth? Given ‘It is only in process rights statements made in cases decided in the last 15 years, the power But there are some procedural rights in of Parliament to affect these procedural and quasi-substantive recent years that Chapter III that cannot be abolished or restricted. matters in significant ways is open to serious doubt. In Re Tracey; Ex parte Rya n 19 , Deane J said, But what is meant by exercising ‘judicial power in a manner it has become correctly in my opinion, that s71 is ‘the which is inconsistent with the essential character of a court or Co n s t i t u t i o n ’ s only general guarantee of due with the nature of judicial power’30 ? In Polyukhovich v The accepted that due process’. In Leeth v The Commonwealth20 , Mason Co m m o n w e a l t h 31 , Leeth v The Commonwealth32 and Na t i o n w i d e CJ, Dawson J and myself also said: News Pty Ltd v Wil l s 33 , Deane and Toohey JJ provided some process rights answers to this question. They insisted that Chapter III does more It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to than determine what bodies shall exercise the judicial power of are guaranteed by natural justice would impose a non-judicial requirement the Commonwealth. Their Honours said that Chapter III dictated inconsistent with the exercise of judicial power. and controlled the manner of its exercise. The judicial power of the Constitution.’ The procedural rights that are arguably the Commonwealth must be exercised in accordance with the beyond the power of the Parliament to change may ‘traditional judicial process’34 . In R v Quinn; Ex parte be described as those rights which courts have Consolidated Food Corporation35 , Jacobs J also saw judicial power traditionally regarded as fundamental to the effective functioning as being concerned with the ‘basic rights which traditionally, and of judicial power. It is after all a ‘short step’21 from the therefore historically, are judged by that independent judiciary constitutional requirement that judicial power can only be vested which is the bulwark of freedom’. In Po l y u k h o v i c h 36 , Deane J said in the courts identified in s71 to the conclusion that Chapter III that Chapter III was based ‘on the assumption of traditional guarantees the procedural rights necessary for the exercise of that judicial procedures, remedies and methodology’ and that the po w e r . Constitution intended that the judicial power of the It is only in recent years that it has become accepted that due Commonwealth ‘would be exercised by those courts acting as process rights are guaranteed by the Constitution. In the courts with all that notion essentially requires’. Australian Communist Party Case22 , Latham CJ23 , Web b 24 an d If these statements are right, the power of Parliament to Fullagar JJ25 emphatically rejected an argument that legislation interfere with traditional procedural rights is narrower than once dissolving the Communist Party and permitting the governor- was assumed to be the case. I think it is likely that the view of general to declare certain persons disqualified from holding office Deane J will ultimately gain wide acceptance. Judicial power is in trade unions usurped the judicial power of the Commonwealth. vested in courts exercising federal jurisdiction to promote the Fullagar J26 said that Chapter III only had a very limited role in supremacy of the law over arbitrary power37 . Any law that might protecting individual rights. If His Honour’s views were accepted, weaken the supremacy of the law in the administration of justice it would seem that the Parliament could make any law invading is suspect. For such a law to be valid, it must at least be justified the judicial function with impunity. as a reasonably proportionate means of implementing some other Instead, the weight of judicial opinion, in the last fifteen legitimate object within the constitutional powers of the years, supports the judgment of Brennan, Deane and Dawson JJ Parliament. Professor Zines must be right when he says that: ‘At in Chu Kheng Lim v Minister for Immigration27 . Their Honours least one test for determining the limits on legislative power

35 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE

arising from Chapter III is surely whether the statutory provision necessary to protect the integrity of the court’s business. impairs the due administration of justice.’ 38 More controversial – whether substantive As it happens, certain procedural and substantive rights can now be taken as constitutionally protected and judicially rights are protected by Chapter III re c o g n i s e d . The foregoing discussion shows that the right to procedural due process is now guaranteed by Chapter III of the Constitution. Implied right to legal representation Are more substantive rights, often enshrined in the constitutions One important example of a due process right recognised as of other countries, similarly entrenched? Professor Winterton has protected by Chapter III is the right to legal representation in pointed out48 that such rights could include criminal process certain situations. In Dietrich v The Queen39 , our court reaffirmed rights, such as freedom from unreasonable search and seizure49 , that a court has power to stay proceedings in a criminal case freedom from detention by police or official questioning and the where an unfair trial might otherwise result. That power extends privilege against self-incrimination. They might even include to a case where an indigent accused is charged with a serious other civil and political rights, such as freedom of offence and, through no personal fault, is unable to obtain legal co m m u n i c a t i o n 50 and the right to equal treatment by the law51 . representation. It cannot be doubted that Chapter III protects the In the Builders Labourers Case52 , Murphy J asserted that right to stay proceedings where the accused is unable to get legal ‘many of the great principles of human rights stated in the representation to meet a serious criminal charge. That is because English constitutional instruments (the Magna Carta, the the right to a fair trial is entrenched in that Chapter, as Deane Declaration of Rights and the Bill of Rights 1688) such as those and Gaudron JJ, in separate judgments, pointed out in Di e t r i c h 40 . which require observance of due process, and disfavour cruel and Once it is accepted that the Constitution guarantees the right unusual punishment’ are embedded in the Constitution. of a fair trial, it must follow that Chapter III also protects litigants Our Court has already recognised that Chapter III protects from legislative and other acts that might compromise the fairness some substantive rights. In its constitutional context, the term of any civil or criminal trial in federal jurisdiction. In that regard, ‘judicial power’ has been interpreted as implying a separation of it is important to bear in mind that fairness judicial power from legislative and executive power and as ‘transcends the content of more particularised guaranteeing the absolute independence of the judiciary53 . 41 ‘Our Court legal rules and principles’ . It ‘provides the Chapter III has also been interpreted as creating a public right to ultimate rationale and touchstone of the rules and have the judicial power of the Commonwealth exercised by has already practices which the common law requires to be judges and courts that do not perform tasks for the executive observed in the administration of the substantive government that might impair public confidence in the 42 54 recognised criminal [and civil] law’ . impartiality of those judges and courts . It also provides for The constitutional right to a fair trial in federal protection of substantive rights by ensuring through s75(v) of the that Chapter III jurisdiction must also mean that there are Constitution that officers of the Commonwealth are performing constitutionally entrenched rights to an unbiased their tasks according to law55 . Section 75(v) prevents the protects some hearing, to obtain a stay of proceedings of a Parliament from declaring that the conduct of a Commonwealth criminal charge where there has been unfair delay officer is not examinable in the High Court. One of the great 43 substantive in prosecuting the charge and to obtain a questions that remains to be decided is whether s75(v) also permanent or temporary stay of proceedings where prevents the Parliament from declaring that the conduct of a 44 rights.’ there has been prejudicial publicity or a Commonwealth officer in a relevant field is not justiciable in the contempt of court that could affect the jury’s High Court even though it is contrary to law. verdict. No doubt there are many more The judgment of Deane and Toohey JJ in Leeth v The constitutional rights that flow from the Co m m o n w e a l t h 56 provides the major premise for the conclusion constitutional right to a fair trial. As Mason CJ and I pointed out that Chapter III protects substantive due process rights generally. in Di e t r i c h 45 , ‘[t]here has been no judicial attempt to list Their Honours said: exhaustively the attributes of a fair trial’. We pointed out, [T]he doctrine of legal equality is, to a significant extent, implicit in the ho w e v e r , that ‘various international instruments and express Co n s t i t u t i o n ’ s separation of judicial power ... [I]n Chapter III’s declarations of rights ... have attempted to define, albeit broadly, exclusive vesting of the judicial power of the Commonwealth in the some of the attributes of a fair trial’46 . The rights recognised in ‘courts’ which it designates, there is implicit a requirement that those ‘courts’ exhibit ... the essential requirements of the curial process, those instruments and declarations may well become, if they are including the obligation to act judicially. At the heart of that obligation not now, guaranteed by Chapter III’s grant of judicial power. is the duty of a court to extend to the parties before it equal justice, that Given the modern view of Chapter III, it is difficult to see is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds. how the decision of the High Court in R v Federal Court of Bankruptcy; Ex parte Lowenstein47 can stand. There, a majority of I will consider the arguments for and against three particular the Court, with Dixon and Evatt JJ dissenting, held that it was not substantive rights that have been addressed by the High Court as inconsistent with the judicial power of the Commonwealth for the being potentially enshrined by Chapter III. Federal Court in Bankruptcy, if it had reason to believe a bankrupt was guilty of an offence against the Act, to charge the 1. Protection from ‘usurpation of judicial power’ and person with the offence and hear the charge summarily. The ‘legislative judgment’ notion that a court could be both prosecutor and judge seems Ar g u a b l y , Chapter III guarantees the right of an individual to repugnant to the most basic ideas of judicial power. The facts in a judicial process that is free of a legislative ‘usurpation of Lo w e n s t e i n were far removed from the power of a judge to punish judicial power’ or ‘legislative judgment’ about the facts and issues a person for contempt in the face of the court, a power that is in the case. In Liyanage v The Queen57 , the Privy Council held

36 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE invalid legislation that had been passed specifically in relation to jurisdiction to conduct an unfair criminal trial because of the risk that a group of dissidents who had been arrested following an … a defendant will be convicted despite the existence of a reasonable doubt as to her or his guilt. attempted coup against the Ceylon government. This special legislation redefined the relevant offences and penalties If the presumption of innocence is a necessary concomitant of applicable to the group, modified the laws of evidence, provided a fair trial, as human rights instruments indicate, it must be for trial by three judges sitting without a jury and retrospectively debateable whether the Parliament can try a person for a serious validated their arrest without warrant and their detention before criminal offence and put any onus of proof on that person. trial. In a celebrated decision, the Privy Council held the law was Si m i l a r l y , it must be debateable whether the Parliament can invalid as a usurpation of judicial power that violated the provide for a lower standard of proof in a criminal trial than proof separation of powers in the Ceylon Constitution. beyond reasonable doubt. The Privy Council said58 : Ho w e v e r , the privilege against self-incrimination, although seen as a fundamental common law principle, has not so far been Each case must be decided in the light of its own facts and 67 circumstances, including the true purpose of the legislation, the seen as beyond federal legislative power to impair or abolish . In situation to which it was directed, the existence (where several Sorby v Commonwealth68 Gibbs CJ said: enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion The privilege against self-incrimination is not protected by the or judgment of the judiciary in specific proceedings. Constitution, and like other rights and privileges of equal importance it may be taken away by legislative action. There is little doubt that this decision would be followed in Australia. Our Court has long recognised that no Australian Nevertheless, the traditional view of the judicial process may legislature can improperly interfere with the federal judicial invalidate any attempt by the Parliament to compel an accused pr o c e s s 59 . In Actors and Announcers Equity Association v Fontana person to give evidence or, in the course of giving evidence, to Films Pty Ltd 60 , the Court declared invalid a sub-section of the answer questions that might incriminate him or her. Nor does it Trade Practices Act 1974 (Cth) that deemed a union guilty of seem consistent with the traditional view of the judicial process tortious conduct. Sub-section 45D(5) provided that, where two or more officers of a union engaged in concerted conduct, the union itself was deemed to engage in that conduct, unless it could show ‘that it took all reasonable steps’ to prevent the officers doing so. By a five to two majority, this provision was held to be invalid. Murphy J said61 :

Unlike a presumption, the purpose and effect of a deeming provision is to prevent any attempt, by either party, to prove the truth. Legislative provision for suppression of the truth in judicial proceedings is inconsistent with the exercise of judicial power and unconstitutional. Ho w e v e r , in R v Ludeke; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation62 , Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ distinguished Actors Equity on the basis that the impugned provision in that case did not fall within the commerce power pursuant to which it was enacted. Lu d e k e suggests that Parliament can enact deeming provisions provided that they are within the head of power pursuant to which they are enacted. But given the statements in later cases concerning the extent of judicial power, the matter cannot be taken as finally settled. that the Parliament could require a person to incriminate herself At present, High Court case law also upholds the power of or himself in a non-judicial environment and then use the Parliament to change the onus of proof63 in a criminal case or to answers so obtained to convict the accused. declare that a state of facts is presumed to exist64 . In Th e Commonwealth v Melbourne Harbour Trust Commissioners65 , Knox Bills of attainder and retroactive laws CJ, Gavan Duffy and Starke JJ said that a law does not usurp More recently, the question of Parliament interfering with the judicial power simply because it regulates ‘the method or burden judicial process has been brought into the spotlight through the of proving facts’. But the cases that hold that the Parliament can High Court considering bills of attainder and retroactive laws. do so were decided before the modern view of Chapter III had Acts of Attainder and Acts of Pains and Penalties are laws that gained currency. Whether they would now be regarded as punish a person without a judicial determination of guilt. Such correctly decided must be an open question. laws were common in the 16th, 17th and 18th centuries. As Dr Fiona Wheeler has pointed out66 , the report of the In Polyukhovich v The Commonwealth69 , six judges agreed Constitutional Commission over which Sir Maurice presided that the Australian Constitution prevented the Federal Parliament makes clear that the presumption of innocence is an important from enacting a bill of attainder because it was inconsistent with element in ensuring that an accused is not tried unfairly. She the separation of judicial power provided for in Chapter III of the argues that: Constitution. It amounted to a declaration of guilt by the Parliament and was, therefore, an improper exercise by [I]t should be accepted that where Parliament has placed upon the defendant the persuasive burden of proof in relation to an element of a Parliament of judicial power. It would leave to a court only the federal offence, this is (prima facie) to ask a court exercising federal duty of determining whether the person charged was a person (or

37 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE a member of the class) specified in the Act. If Parliament could More controversial is the view that a retroactive criminal law pass such legislation, it could enact a legal rule and is a breach of the separation of powers and necessarily a simultaneously declare that a particular person or group had usurpation of judicial power. In Po l y u k h o v i c h 74 , the retroactive broken it. law in question was the War Crimes Act 1945 (Cth) which Given these statements on bills of attainder, the decision in provided that a person was guilty of an indictable offence if that R v Richards; Ex Parte Fitzpatrick and Brow n e 70 is difficult to person committed, in Europe, between 1 September 1939 and 8 defend. By resolution of the House of Representatives, May 1945, a ‘war crime’. A majority of the court held that the Act Fitzpatrick and Browne were declared ‘guilty of a serious breach was not inconsistent with the separation of powers. of privilege’ and for the ‘offence’ were committed to gaol. The Mason CJ, Dawson J and myself pointed out that the Act offence consisted in publishing articles that the Committee of penalised persons according to a generally applicable rule, rather Privileges found were ‘intended to influence and intimidate a than, as in the case of a bill of attainder, specifying persons or member … in his conduct in this House’. Our Court upheld the groups by name or identifiable characteristics75 . Further, we imprisonment on the basis that s49 of the Constitution gave each found that the Act did not make any determination of fact. House the privileges of the House of Commons. In an oral Instead, the requirement of proof of conduct and the necessary judgment, the Court simply said that the separation of powers state of mind which constitutes murder was ‘too particular’ in its doctrine was not a sufficient reason for giving s49 a restrictive nature to amount in these circumstances to a ‘disguised me a n i n g 71 . But surely reconciling ss49 and 71 required greater description of group membership’76 . Mason CJ said that77 : analysis than the Court gave to the problem. The resolution was ‘There is nothing in the statements which I have quoted to an attainder, adjudging two men to be guilty of an offence and suggest that an exercise of judicial power necessarily involves the committing them to prison. It was an exercise of judicial power. application to the facts of a legal principle or standard formulated No attempt was made to justify how or why the general language in advance of the events to which it is sought to be applied.’ of s49 should be given ascendancy over s71 of the Constitution. Toohey J also held that the Act did not constitute a bill of Mo r e o v e r , since AC T V 72 and La n g e 73 , there is reason to think that attainder and did not amount to a legislative judgment as to guilt. the unrestricted right of Parliament to punish persons for Ho w e v e r , he did deal with the general international abhorrence of criticisms of members of Parliament is inconsistent with the retroactive criminal law, seemingly on the basis that it was freedom of communication protected by the Constitution. relevant to Chapter III. He said retroactive laws would not

38 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE

necessarily offend Chapter III, but he would not ‘share dicta State cannot legislate in a way that has the effect of violating ‘the which may be thought to suggest that an ex post facto law can principles that underlie Chapter III’88 . I went on to say that89 : never offend Chapter III’78 . He found it unnecessary to pursue At the time of its enactment, ordinary reasonable members of the that issue because the Act was not ‘offensively retroactive’ in public might reasonably have seen the Act as making the Supreme relation to the plaintiff. Murder was universally condemned and Court a party to and responsible for implementing the political decision constituted a grave moral transgression79 . of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who Deane and Gaudron JJ, on the other hand, held that the Act reached that conclusion could justifiably draw the inference that the was incompatible with Chapter III of the Constitution, saying that Supreme Court was an instrument of executive government policy. That a retroactive criminal law was a usurpation by Parliament of being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. 80 judicial power and a legislative judgment of guilt . For Deane The Act therefore infringed Chapter III of the Constitution and was and and Gaudron JJ, there was no relevant difference between a law is invalid. that declared that persons who had certain characteristics were Once it was established that aspects of the doctrine of guilty of an offence and a law that provided that persons who had separation of powers, such as protection from usurpation of committed certain acts were guilty of an offence81 . judicial power, were relevant, the invalidity of the Act was readily Deane and Gaudron JJ’s views regarding the validity of ap p a r e n t . retroactive criminal laws are controversial because, unlike the United States Constitution82 , there is no mention of how 2. Freedom from detention retroactive laws should be dealt with in the Australian A second substantive right arguably implicit in Chapter III is Co n s t i t u t i o n . the right of the citizen to freedom from detention except pursuant To sum up, in Po l y u k h o v i c h there was a clear majority to judgment by a court. In Chu Kheng Lim v Minister for holding that a bill of attainder per se will be inconsistent with the Im m i g r a t i o n 90 Brennan, Deane and Dawson JJ in a joint judgment reservation of judicial power in Chapter III. On the other hand, recognised this right. Their Honours suggested91 that there an implied constitutional guarantee against existed ‘a constitutional immunity from being imprisoned ... retroactive criminal laws, as supported by Deane except pursuant to an order by a court’ – since, apart from certain and Gaudron JJ, has not yet won majority support. ‘exceptional cases’92 : ‘More The early High Court decision of R v Kidman83 – the involuntary detention of a citizen in custody by the State is penal or which held that the Commonwealth did have punitive in character and, under our system of government, exists only controversial power to enact a retroactive criminal law – would as an incident of the exclusively judicial function of adjudging and seem to remain good law. punishing criminal guilt. is the view that a Kable v Director of Public Prosecutions (NSW) The exceptions noted by the majority included an accused’s custody pending trial, the detention of those who are mentally ill retroactive The issue of legislative judgment and or have an infectious disease, and imprisonment by a military usurpation of judicial power also arose in Kable v 93 84 tribunal or for contempt of Parliament . And Li m itself decided criminal law is a Di r ector of Public Prosecutions (NSW) . There, the that the aliens power extended to authorising the detention of an Community Protection Act 1994 (NSW) alien for the purpose of deportation or expulsion. breach of the empowered the Supreme Court of New South If there is a Chapter III right of freedom from detention, then Wales to make preventive detention orders. Commonwealth legislation purporting to authorise detention separation of Ho w e v e r , s3 limited the making of detention outside the excepted categories may be invalid as an attempted orders to the case of a man named Gregory Kable. exercise of the judicial power of the Commonwealth. Arguably, powers and The Act was passed because Kable, while in gaol federal legislation authorising the detention of a criminal suspect for the manslaughter of his wife, had written letters for interrogation, for example, may be invalid. necessarily a allegedly threatening the safety of his children and Gaudron J’s judgment in Li m was more cautionary. Her his deceased wife’s sister. Honour said that she was ‘not presently persuaded that legislation usurpation of Sir Maurice, who appeared for Kable in the authorising detention in circumstances involving no breach of the High Court, argued that the Act was invalid criminal law and travelling beyond presently accepted categories judicial power.’ because it singled out an individual person for is necessarily and inevitably offensive to Chapter III’94 . My detention in the absence of any conviction. He judgment was also cautionary. I said95 that a law that authorised argued that this amounted to a ‘legislative the detention of an alien for the purpose of deportation or judgment’ or a ‘legislative usurpation of judicial processing an entry permit might be invalid if it went beyond power’ within the meaning of Liyanage v The Queen85 . what was reasonably necessary to effect that purpose. That is to But the Constitution Act 1902 (NSW) embodies no sa y , detention without a curial order will not usurp judicial power ‘separation of powers’86 . Accordingly, in the absence of any if it is reasonably and appropriately adapted to serving some ‘separation of powers’ at the State level, an attack on the other legitimate object within the Parliament’s powers. Community Protection Act based on the concept of ‘legislative Nevertheless, despite these cautionary statements, Lim is a judgment’ without more had to fail. However, a majority of the significant decision. It provides a foundation for the conclusion Court invoked the ‘incompatibility doctrine’. We held that the that, except in limited circumstances, the detention of citizens function conferred on the Supreme Court by the Co m m u n i t y against their will may be constitutionally permissible only when Pr otection Act was ‘incompatible’ with the exercise of federal determined by a court and only when the determination conforms jurisdiction invested in the Supreme Court and would undermine to the traditional procedures and safeguards of the judicial public confidence in that court. process. Citing authority87 , I said that it is implicit in Chapter III that a

39 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE

Kruger v The Commonwealth If the involuntary detention rule exists, Kruger v The Co m m o n w e a l t h 96 shows that the exceptions to it are not closed. The issue in Kr u g e r was whether the Aboriginals Ordinance 1918 (NT) was valid insofar as it authorised the forced removal of Aboriginal children from their families and communities without a court order. Too h e y , Gaudron and Gummow JJ rejected the plaintiffs’ argument on the ground that the ostensible concern of the ordinance with Aboriginal welfare precluded any finding that the confinement of Aboriginals was ‘punitive’. Gummow J97 sa i d th a t :

The powers of the Chief Protector to take persons into custody and care under the 1918 Ordinance were, whilst that law was in force, and are no w , reasonably capable of being seen as necessary for a legitimate no n -punitive purpose (namely the welfare and protection of those persons) rather than the attainment of any punitive objective. power ... that treats people unequally. As such its exercise is inconsistent with the judicial process. Of more general application, Gummow J also noted that ‘[t]he categories of non-punitive, involuntary detention are not closed’98 . In comparison, Deane and Toohey JJ evince what Professor Indeed, having regard to the breadth of exceptions acknowledged Zi n e s 10 6 calls a more ‘general equality’ argument. Their Honours in Li m and in Ka b l e , Gaudron J99 now doubted whether any sa i d 10 7 : constitutional requirement that involuntary detention be subject [T]he doctrine of legal equality is, to a significant extent, implicit in the to judicial ‘due process’ was maintainable at all. Co n s t i t u t i o n ’ s separation of judicial power ... [It] is the duty of a court to Nevertheless, despite the finding that the ordinance in Kr u g e r extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from did not infringe Chapter III, and despite the reservation of discrimination on irrelevant or irrational grounds. Gaudron J, it is still arguable that a limited right against detention without judicial due process exists. Further case law The joint majority judgment of Mason CJ, Dawson J and myself will be needed to define how limited this right is. rejected both the general equality argument and that based on Chapter III. In relation to the equality ground, we said10 8 : 3. Equality argument From the separation of judicial power in Chapter III, some ‘There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the judges have inferred a third substantive right in that Chapter. It is Co m m o n w e a l t h . ’ the guarantee of the equal application of federal law. If the 10 9 Constitution requires a court to administer equal justice, then, so In relation to the s71 argument, we said that the Act was not the argument runs, the court can only do so if the substantive an attempt to cause the court to act contrary to the judicial process. rules created by the legislature require the ‘like treatment of We said: persons in like circumstances’ and an appropriately ‘different [T o] speak of judicial power in this context is to speak of the function of a treatment of persons in different circumstances’10 0 . court rather than the law which a court is to apply in the exercise of its fu n c t i o n . Leeth v The Commonwealth10 1 is the seminal case. The issue was whether a section of the Commonwealth Prisoners Act 1967 Like the other members of the majority, Brennan J found that (Cth) was valid. It provided that, where a person was to be the legislation was not inconsistent with s71 of the Constitution, sentenced to imprisonment for a federal offence and the local law although his reasoning was closely tied to the circumstances of the of the State or Territory required prison sentences to specify a case and did not amount to a rejection of the views of the dissenting minimum non-parole period, the federal offender was to be ju s t i c e s . sentenced according to that local law. As a result, federal A majority of the court in Le e t h was therefore of the view that offenders in different States and Territories could receive the principle of the separation of powers does not limit the different minimum non-parole periods. The section was said to be Pa r l i a m e n t ’ s power to make substantive rules of law that, in the view unconstitutional because it breached an alleged implied of the court, treat people in an unequal or discriminatory manner. prohibition against the ‘unequal treatment of equals’10 2 or because it contravened s71 of the Constitution which ‘contemplate[d] that Kruger v The Commonwealth 11 0 in substantive matters the law to be applied will be the same In Kruger v The Commonwealth , the Aboriginals Ordi n a n c e throughout Australia’10 3 . 1918 (NT) was also challenged on equality grounds. Gaudron J 11 1 Only Gaudron J based her decision on the ground that the re a f f i r m e d her own analysis in Le e t h and repudiated the broader Act was in breach of s71. She declared that equal justice was ‘equality’ doctrine envisaged by Deane and Toohey JJ in that case. 11 2 11 3 fundamental to the judicial process10 4 . The Act directed courts to Dawson J , with whom I agreed, and Gummow J also rejected the treat convicted persons in different ways according to the place of approach of Deane and Toohey JJ in Le e t h . Similarly, Brennan CJ trial, and thus required them to exercise power otherwise than in held that there was no generalised requirement of ‘substantive 11 4 accordance with ‘the judicial process’. Her Honour said10 5 : equality’ which could assist the Aboriginal plaintiffs in Kr u g e r . Only Toohey J defended11 5 the position that he and Deane J had All are equal before the law. And the concept of equal justice - a concept taken in Le e t h . which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such - is Co n c l u s i o n fundamental to the judicial process ... [The legislation here confers] a The cumulative effect of the judgments of Dawson, Gaudron

40 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE

and Gummow JJ and myself in Kr u g e r appears to mean that the 1 Scala v Mammolitti (1965) 114 CLR 153. ‘doctrine of legal equality’ suggested by Deane and Toohey JJ in 2 (1949) 79 CLR 353. Le e t h has been decisively rejected. This supports Professor 3 The Commonwealth v Tas m a n i a (1983) 158 CLR 1. 4 New South Wales v The Commonwealth (1975) 135 CLR 337. Win t e r t o n ’ s view that the ‘judicial power of the Commonwealth’ 5 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR should not generally be held to include substantive rights11 6 . It is 10 6 . notable that the United States Constitution, upon which our 6 (1996) 189 CLR 51. separation of judicial power was modelled11 7 , does not view the right 7 cf the remarks of Sir , ‘Judicial remedies and the Constitution’ of legal equality as an essential feature of ‘judicial power’. Rather, (1994) 57 Modern Law Review 213 at 213. 8 Cominos v Cominos (1972) 127 CLR 588 at 606; Pr ecision Data Holdings the United States Constitution contained no guarantee of equality Ltd v Wil l s (1991) 173 CLR 167 at 188-189; Chu Kheng Lim v Minister for until the adoption in 1868 of the Fourteenth Amendment, Immigration (1992) 176 CLR 1 at 67; Brandy v Human Rights and Equal guaranteeing ‘the equal protection of the laws’. Moreover, the Opportunity Commission (1995) 183 CLR 245 at 257; Nicholas v The Queen framers of the Australian Constitution considered a provision (1998) 193 CLR 173 at 233 [148]. modelled on the Fourteenth Amendment (at least in relation to the 9 (1909) 8 CLR 330 at 357. 10 Lumb and Moens, The Constitution of the Commonwealth of Australia, States), and specifically rejected it at the Melbourne Constitutional 6t h ed (2001) at 7. Convention in 189811 8 . 11 Huddart, Parker & Co Pty Ltd v Mooreh e a d (1909) 8 CLR 330. On the other hand, the more limited Chapter III doctrine 12 New South Wales v The Commonwealth (1915) 20 CLR 54. proposed by Gaudron J, and at least partially endorsed in Kr u g e r by 13 Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 Dawson J and myself, appears to be still open. On that basis, despite CLR 434. 14 Quick and Garran, The Annotated Constitution of the Australian the plaintiffs’ failure in Kr u g e r , the combined effect of the Co m m o n w e a l t h , (1901) at 722 (emphasis in the original). judgments in that case with those in Le e t h and Po l y u k h o v i c h su g g e s t 15 Nygh and Butt (eds), Butterworths Australian Legal Dictionary (1997) at that implications protective of personal liberty will be drawn from 11 2 9 . the conception of Chapter III as an ‘insulated, self-contained 16 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 204-205. universe of Commonwealth judicial power’11 9 . Ka b l e is perhaps the 17 Section 80. most dramatic example of this with its protection 18 Lumb and Moens, The Constitution of the Commonwealth of Australia, 6th against usurpation of judicial power and legislative ed (2001) at 254. ‘Kable is judgment. 19 (1989) 166 CLR 518 at 580. Gaudron J’s comments that legislation requiring 20 (1992) 174 CLR 455 at 470. perhaps the courts to apply the law to ‘facts invented by 21 Zines, ‘A judicially created Bill of Rights?’ (1994) 16 Sydney Law Review 166 at 168. Parliament’ would impose ‘a travesty of the judicial 22 Australian Communist Party v The Commonwealth (1951) 83 CLR 1. most dramatic process’ and thereby contravene s 71 of the 23 (1951) 83 CLR 1 at 172-173. Co n s t i t u t i o n 12 0 also show that federal courts cannot 24 (1951) 83 CLR 1 at 234-235. example of this and should not be unconcerned as to the substantive 25 (1951) 83 CLR 1 at 268-269. content of the law they apply. Professor Winterton is a 26 (1951) 83 CLR 1 at 268-269. 27 (1992) 176 CLR 1 at 27. with its 12 1 critic of substantive due process. But he agrees th a t 28 cf Deane J in Re Tracey; Ex parte Rya n (1989) 166 CLR 518 at 580. it ‘would be contrary to accepted notions of judicial 29 (1991) 172 CLR 460 at 496. Similarly, I have said that ‘[o]pen justice is the protection po w e r ’ 12 2 to require a court ‘to enforce laws hallmark of the common law system of justice and is an essential inconsistent with civilised standards of humanity and characteristic of the exercise of federal judicial power’: Gr ollo v Palmer against justice’. He gives as an example ‘Commonwealth (1995) 184 CLR 348 at 379. 30 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27. legislation imposing barbarous sentences’. 31 (1991) 172 CLR 501 at 607. usurpation of In e v i t a b l y , this issue will raise questions about 32 (1992) 174 CLR 455 at 486-487. the tension that exists from the effect of the negative 33 (1992) 177 CLR 1 at 70. judicial power implications, arising from the separation of judicial 34 Nationwide News Pty Ltd v Wil l s (1992) 177 CLR 1 at 70. power from legislative power, on laws that are 35 (1977) 138 CLR 1 at 11. 36 (1991) 172 CLR 501 at 607. and legislative otherwise literally within a head of constitutional 37 cf Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) po w e r . This is a debate that has been waged since at 322. judgment.’ federation and will inevitably continue in the future. 38 Zines, The High Court and the Constitution, 4th ed (1997) at 204. The constitutional law of Australia will be the 39 (1992) 177 CLR 292. poorer for not having the wisdom and views of Sir 40 (1992) 177 CLR 292 at 326, 362. 41 Dietrich v The Queen (1992) 177 CLR 292 at 326. Maurice Hearne Byers on the questions that are and will be 42 Dietrich v The Queen (1992) 177 CLR 292 at 326. involved in this debate. 43 Jago v District Court (NSW) (1989) 168 CLR 23. 44 R v Glennon (1992) 173 CLR 592. 45 (1992) 177 CLR 292 at 300. 46 (1992) 177 CLR 292 at 300. 47 (1938) 59 CLR 556. 48 Winterton, ‘The separation of judicial power as an implied Bill of Rights’ in Lindell (ed), Fu t u r e Directions in Australian Constitutional Law (1994) 185 at 200-201. 49 cf United States Constitution, Fourth Amendment. 50 cf United States Constitution, First Amendment; see Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Na t i o n w i d e News Pty Ltd v Wills (1992) 177 CLR 1. 51 cf United States Constitution, Fourteenth Amendment. 52 Victoria v Australian Building Construction Employees’ and Builders

41 ADDRESSES - 2001 SIR MAURICE BYERS LECTURE

La b o u r ers’ Federation (1982) 152 CLR 25 at 109. His Honour’s position Most of the judgments specifically held that the Commonwealth did have varies quite dramatically from that expressed by Latham CJ in Au s t r a l i a n power to enact a retroactive criminal law. Communist Party v The Commonwealth (1951) 83 CLR 1. At 168, Latham 84 (1996) 189 CLR 51. CJ poured cold water on the suggestion that notions of due process should 85 [1967] 1 AC 259. See Byers Q.C. for the appellant (1996) 189 CLR 51 at 53-54. be imported into the words ‘judicial power’: 86 Clyne v East (1967) 68 SR (NSW) 385; Building Construction Employees’ The case was argued by some counsel as if the Commonwealth Constitution and Builders Labourers’ Federation of New South Wales v Minister for contained provisions corresponding to those contained in certain other Industrial Relations (1986) 7 NSWLR 372. constitutions. In the Constitution of the United States of America there are 87 The Commonwealth v Queensland (1975) 134 CLR 298 at 314-315. provisions preventing the enactment of laws impairing the obligation of 88 (1996) 189 CLR 51 at 115; see also at 107 per Gaudron J. contracts or depriving persons of life, liberty or property without due process of 89 (1996) 189 CLR 51 at 124. But see the dissenting judgment of Dawson J at la w . In the Canadian Constitution ‘property and civil rights within the province’ 86, where His Honour said that ‘the concept of incompatibility is derived is a subject as to which the provincial legislatures are declared to have from the separation of powers and does not have a life of its own independent exclusive power ... None of these provisions appear in the Constitution of the of that doctrine ... New South Wales has not adopted that doctrine so that Commonwealth, and in my opinion there is no basis whatever for the attempt to there can be no incompatibility between the exercise of judicial power and create such provisions by arguments based upon the judicial power and s 92 of the exercise of executive or legislative power by a court of that State.’ the Constitution and the natural dislike of suppressive laws. 90 (1992) 176 CLR 1. 53 Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 91 (1992) 176 CLR 1 at 28-29. CLR 529 at 540. 92 (1992) 176 CLR 1 at 27. 54 Wilson v Minister for Aboriginal and Tor r es Strait Islander Affa i r s (1996) 189 93 (1992) 176 CLR 1 at 28. CLR 1. 94 (1992) 176 CLR 1 at 55. 55 Wilson v Minister for Aboriginal and Tor r es Strait Islander Affairs (1996) 189 95 (1992) 176 CLR 1 at 65-66. CLR 1 at 11 per Brennan CJ, Dawson, Too h e y , McHugh and Gummow JJ ; 96 (1997) 190 CLR 1. see also Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 684- 97 (1997) 190 CLR 1 at 162; see also at 85 per To o h e yJ . 685. See also Kennett, ‘Individual rights, the High Court and the 98 (1997) 190 CLR 1 at 162. Constitution’ (1994) 19 Melbourne University Law Review 58 1 . 99 (1997) 190 CLR 1 at 110. 56 (1992) 174 CLR 455 at 486-487. See also Re Nolan; Ex parte Young (1991) 10 0 See Zines, The High Court and the Constitution, 4th ed (1997) at 205. 172 CLR 460 at 497 per Gaudron J. 10 1 (1992) 174 CLR 455. 57 [1967] 1 AC 259. 10 2 (1992) 174 CLR 455 at 457 per Jackson Q.C.. 58 [1967] 1 AC 259 at 290. 10 3 (1992) 174 CLR 455 at 458 per Jackson Q.C.. 59 Huddart Parker v Mooreh e a d (1909) 8 CLR 330; Melbourne Steamship Co 10 4 (1992) 174 CLR 455 at 502. Ltd v Moorehead (1912) 15 CLR 333 at 346; Hammond v The 10 5 (1992) 174 CLR 455 at 502-503. Co m m o n w e a l t h (1982) 152 CLR 188; Sorby v The Commonwealth (1 9 8 3 ) 106 See Zines, The High Court and the Constitution, 4th ed (1997) at 205. 152 CLR 281; Australian Building Construction Employees’ and Builders 10 7 (1992) 174 CLR 455 at 486-487. La b o u r ers’ Federation v The Commonwealth (1986) 161 CLR 88 at 96. 10 8 (1992) 174 CLR 455 at 467. 60 (1982) 150 CLR 169. 10 9 (1992) 174 CLR 455 at 469. 61 (1982) 150 CLR 169 at 214-215. See also His Honour’s judgment in R v 11 0 (1997) 190 CLR 1. Bowen; Ex parte Amalgamated Metal Workers & Shipwrights Union (1 9 8 0 ) 11 1 (1997) 190 CLR 1 at 113-114. 144 CLR 462 at 480. 112 (1997) 190 CLR 1 at 63. 62 (1985) 159 CLR 636 at 651-652. 11 3 (1997) 190 CLR 1 at 153. 63 Williamson v Ah On (1926) 39 CLR 95; Milicevic v Campbell (1975) 132 11 4 (1997) 190 CLR 1 at 44-45. CLR 307. 11 5 (1997) 190 CLR 1 at 96-97. 64 R v Hush; Ex parte Devanny (1932) 48 CLR 487. 11 6 See Winterton, ‘The separation of judicial power as an implied Bill of 65 (1922) 31 CLR 1 at 12. Rights’ in Lindell (ed), Fu t u r e Directions in Australian Constitutional Law 66 ‘The doctrine of separation of powers and constitutionally entrenched due (1994) 185 at 207. process in Australia’, (1997) 23 Monash Law Review 248 at 272. 11 7 See Dixon, Jesting Pilate (1965) at 52. 67 In Hammond v The Commonwealth (1982) 152 CLR 188 at 203, Brennan J 11 8 See Winterton, ‘The separation of judicial power as an implied Bill of expressly left open the question whether the Commonwealth Parliament Rights’ in Lindell (ed), Fu t u r e directions in Australian Constitutional La w could deprive a person, charged with a Commonwealth offence, of immunity (1994) 185 at 205. from self-incrimination. However, the High Court has now recognised such 11 9 Blackshield and Williams, Australian constitutional law and theory, 2nd ed power: Sorby v The Commonwealth (1983) 152 CLR 281 at 298-299, 308, (1998) at 1164. 314; see also En v i r onment Protection Authority v Caltex Refining Co Pty Ltd 12 0 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 704; see also (1993) 178 CLR 477. the comments of Murphy J in Actors and Announcers Equity Association v 68 (1983) 152 CLR 281 at 298. Fontana Films Pty Ltd (1982) 150 CLR 169 at 214. 69 (1991) 172 CLR 501. 12 1 Winterton, ‘The separation of judicial power as an implied Bill of Rights’ 70 (1955) 92 CLR 157. in Lindell (ed), F u t u re Directions in Australian Constitutional Law 71 (1995) 92 CLR 157 at 165-166. (1994) 185 at 207. 72 (1992) 177 CLR 106. 12 2 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 689 per Toohey J. 73 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 74 (1991) 172 CLR 501. 75 (1991) 172 CLR 501 at 535-536, 647-649, 721-722. 76 (1991) 172 CLR 501 at 686 per Toohey J. 77 (1991) 172 CLR 501 at 533. 78 (1991) 172 CLR 501 at 690. 79 (1991) 172 CLR 501 at 690. 80 (1991) 172 CLR 501 at 612-613, 704-705. 81 See Zines, ‘A Judicially Created Bill of Rights?’ (1994) 16 Sydney Law Re v i e w 166 at 171. 82 See United States Constitution, Art 1, s9, cl3, ‘No Bill of Attainder or ex post facto law shall be passed’. 83 (1915) 20 CLR 425. In that case the defendants were charged with ‘conspiracy to defraud the Commonwealth’. This offence had been added to the Crimes Act 1914 (Cth) by amendment in 1915, but the amending Act required that it ‘be deemed to have been in force’ from 29 October 1914.

42 Faculty of Law www.law.newcastle.edu.au

The Faculty of Law at the University of Newcastle wishes to thank all the judges, judicial officers, magistrates, lawyers and others who have made valuable contributions to professional legal education at our University over the past academic year including:

Carol Abela, Solicitor Detective Senior Constable Whayne Day Penny Mainprize, Solicitor Jaime Abrahamse, Lumley General Insurance Dibbs Barker Gosling, Solicitors Commisioner Steve Mark Margaret Allison, Legal Aid Commission of NSW Federal Magistrate Warren Donald Chris Maxwell Q.C. Nicholas Amos, Solicitor Peter Driessen, Law Cover The Hon Justice G Mullane Phil Antonnucio, Solicitor Ian Duane, Barrister Sally Nash, Solicitor Michael Antrum, Legal Counsel (UWS) Dr Johan Duflou Emeritus Professor Garth Nettheim Hilda Armstrong James Dunn Aldo Nicotra, Solicitor Stewart Austin, Barrister Paul Farrell, Solicitor Peter North, Solicitor Jenny Bargen, Dept Juvenile Justice Bruce Foat, Solicitor Sharyn Pavey, Newcastle Court House Peter Barnett, Crown Prosecutor Deborah Forbes, Barrister Warren Perram, Solicitor Michael Bateman, Barrister Tracey Gmur, Solicitor Dr Roderic Pitty Visiting Professor Philip Bates, Barrister Darren Goodsir, Sydney Morning Herald Rod Powe, Solicitor Terry Bates, Barrister Mark Grierson, Disability Advocacy Service Visiting Professor Margaret Renaud Professor Barry Boettcher, AM Deputy Registrar Richard Grigg Dr Geoff Rickarby,Mental Health Review Tri b u n a l Professor Nik Bogduk John Hamilton, Barrister The Hon Justice A Rowlands Sarah Burke, Solicitor Peter Harper, Barrister Registrar Paul Ruse Alex Burns, Migrant Resource Centre Catherine Henry, Solicitor Mark Sculthorpe Professor Vaughan Carr Professor John Hilton Virginia Shirvington, Law Society of NSW Belinda Cassidy, MAA Dr Carl Hughes, Forensic Consultant Judge M Sidis Michelle Castle, DG Thompson Jim Johnson, Barrister Ben Slade, Solicitor Rod Channel, DOCS Judicial Registrar Bill Johnston Magistrate Jan Stevenson The Hon Justice R Chisholm Shaun Keays-Byrne, VCT Janet Sutherland, CJC Giles Coakes, Barrister Anne Kinnear, Solicitor Winston Terracini S.C. Adam Cockayne, DG Thompson Michael Kozlowski, Barrister Warwick Tregilgas, Barrister Magistrate Warren Cook Dr Kevin Lee Dr Mark Wal k e r Judge R Coolahan Dr Tim Lyo n s Professor Trevor War i n g Federal Magistrate Michael Connelly Bruce McDermott, Law Cover Professor David Weisbrot, ALRC Registrar Colin Crossland, VCT Graham McDonald, Solicitor Visiting Professor Roger West Peter Cummings, Barrister John McPhee, CCEB (UofN) Helen Williams, Federal Magistrates Service Fran Curtis, Vocal Coach Kate Maher, President, Newcastle Law Society The Hon Mr Justice P You n g

Consultants and Clinical Lecturers Richard Anicich, Solicitor Alister Henskens, Barrister Ian Player, Solicitor Sarah Breusch, Solicitor Jane Lye, Solicitor Stephanie Posniak, Solicitor Tony Cavanagh, Solicitor Shaun McCarthy, Solicitor Thomas Presbury, Solicitor Nicholas Dan, Solicitor Jerome McClintoch, Solicitor Paul Rosser Q.C. Magistrate Roland Day Paul Mitchell, Solicitor Liam Shaw, Solicitor Robert Foggo, Solicitor Alissa Moen, Barrister Sunila Srivastava, Solicitor Paula Harvey, Solicitor Nicolas Moir, Solicitor Richard Taperell, Barrister James Helman, Solicitor Sharon Moore, Solicitor Mark Whelan, Solicitor

Professional Placements Armstrongs Solicitors Gianacas & Argiris Neil Francey, Barrister Attorney General’s Department (NT) Harris Wheeler Oliver Campbell At t w a t e r s Henry Davis Yor k OSullivan Saddington Australian Taxation Office Howard Sheridan Cooney Harvey Owen Trembath & Associates Bale, Boshev & Associates Hunt & Hunt Patey & Murphy, Berryman Partners Hunter Community Legal Centre Paul Bond Lawyers Bilbie DanBlake Dawson Wal d r o n L S Davis & Associates Piper Alderman, Boyd Wooi Olsen Kinnear & Co Rankin & Nathan Braye Cragg Koops Martin Reid & Reid Burgess Foat Lea Smith & Associates Richard Fry &Associates Catalyst Partners Legal Aid Commission of NSW Sparke Helmore Cleaves Mallik Gibbs Lyons Barnett Kennedy Stacks-The Law Firm Cornwells Solicitors & Advocates Mallesons Stephen Jaques Stanger & Ryan Deacons Many Rivers Aboriginal Legal Service Taperell Rutledge Delloite Touche Toh m a t s u McDonald Johnson Thomas Mitchell Partners Department of Public Prosecutions Migrant Resource Centre Trisley Kilmurray Ebsworth & Ebsworth Minter Ellison Turnbull Hill Fr e e h i l l s Mo r o n e y , Rutter & Mantach Whitelaw McDonald & Associates Geoffrey Edwards & Co Mullane & Lindsay

Awards and Prizes Baker Love Holding Redlich Lawyers Newcastle Law Society Butterworths Pty Limited Hunter Water Corporation Limited Tax Institute of Australia Central Coast Law Society Hunter Valley Law Society The Law Book Company Limited Clayton Utz Hunter Valley Family Law Practitioners Assoc The Hon Justice Elizabeth Evatt, AO Deacons Mrs L I Lindgren and Family Emeritus Professor Godfrey Tan n e r New South Wales Bar Association

We also thank those people who have made valuable contributions in previous years. Others interested in being involved with our Faculty are invited to contact - Jenny Finlay-Jones, Acting Director of Clinical Program on (02) 4921 5870 or jenny.f i n l a y j o n e s @ n e w c a s t l e . e d u . a u

43 A D D R E S S E S

Australia since federation means that the recent abolition by the High Court of the Legal retail therapy: rule in Phillips v Eyre is unlikely to disadvantage the residents of any State wherever they may be sued within Is forum shopping a necessary evil? Au s t r a l i a . 8 Lord Pearson identified the principal disadvantage of the rule in By The Hon. Justice R S French, Federal Court of Australia. Phillips v Eyre in terms which have been Delivered at the Australian Legal Convention, 11-14 October 2001, Canberra. regarded as the first judicial definition of forum shopping. The rule, he said: Forum shopping - origins and definition shopping’ appears first to have been The metaphor ‘forum shopping’ comes judicially coined by the Ninth Circuit of might lead to what has been described in American cases as ‘forum- shopping’, with a denunciatory overlay which does the United States Court of Appeals in i.e. a plaintiff by-passing his natural 1951, borrowing from its usage in the not convey with any clarity what is being forum and bringing his action in some 5 denounced. A like imprecision is found in Southern Californian Law Journal. In that alien forum which would give him relief the more arcane, but equally denunciatory, case the parents of an eight year-old child, or benefits which would not be available concept of ‘colourability’ which is an killed when hit by a gasoline truck, sued to him in his natural forum. 9 attribute attaching to claims for relief the oil company and its driver in the State This definition of forum shopping is which nominally but illegitimately invoke District Court of Idaho under a State pejorative and embodies question-begging federal jurisdiction in order that they may wrongful death statute. The verdict of references to natural and alien forums. It proceed in a federal court. $40,000 which they obtained was set is not reflective of a uniform attitude in the In contemporary discussion of forum aside by the Judge as excessive and a new English courts. Lord Denning, in 1973, shopping it is useful to have regard to the trial ordered. They discontinued against judicially invited any friendly foreigner to history of that term. It the company and started fresh seek the aid of the English courts if he originated in the United proceedings in the United States District desired to do so: ‘The metaphor States, initially descriptive Court for the District of Idaho invoking its of the practice of invoking diversity jurisdiction. This time they You may call this ‘forum shopping’…but if the forum is England, it is a good diversity jurisdiction in received a verdict of $35,407.50, reduced ‘forum shopping’ place to shop in, both for the quality of order to utilise federal in the Federal Court of Appeal to $20,000. the goods and the speed of service.10 comes with a courts which, although Although their tactic had no explicit required to apply relevant impact on the outcome of the appeal, it Lord Simon of Glaisdale, in the following year, on appeal in the same case denunciatory State statutes, could create was described by the chief judge as ‘a and develop a federal clear case of what is aptly called ‘forum acknowledged that ‘forum shopping’ is a dirty word but characterised it as ‘…only a overlay which common law. The practice shopping’’. was dealt a blow by the The United States has some fifty State pejorative way of saying that, if you offer a plaintiff a choice of jurisdictions, he will does not convey landmark decision of the judicial hierarchies and federal courts of United States Supreme general and specialist jurisdiction. It is not naturally choose the one in which he thinks his case can be most favourably with any clarity Court in Erie Railroa d surprising that forum shopping in that Company v Tom p k i n s . 1 Th a t country has been described as ‘a national presented: this should be a matter neither 11 6 for surprise nor for indignation.’ what is being decision required federal legal pastime’. courts in diversity cases to The term ‘forum shopping’ crossed the The criticism of forum shopping has not always applied with the same vigour in denounced.’ apply the substantive laws Atlantic to the United Kingdom where it of the State in which they was used for the first time in the House of the United States against interstate forum sat. It was later extended Lords in 1971. The case was a running shopping as it has been against by the requirement that down action arising out of a road accident State/federal forum shopping. Where a federal courts apply the choice of law rule in Malta. Both parties were residents of libel action against Hustler Magazine wa s of the forum.2 The term ‘forum shopping’ England. The action was brought in brought in a State with an unusually long appears to have been coined in an article England. Speaking of the advantage of the statute of limitations, Justice Rehnquist about the Erie decision in the So u t h e r n rule in Phillips v Eyre 7 Lord Pearson (as he then was) called the selection California Law Review3. An early reported remarked that it enabled an English court strategy: ‘no different from the litigation judicial use of the term appears in a ‘…to give judgment according to its own strategy of countless plaintiffs who seek a judgment of the United States Supreme ideas of justice’. Moreover if one forum with favourable substantive or Court concerned with the effect of a Englishman were wrongfully to injure procedural rules or sympathetic local 12 federal statute upon a plaintiff’s ability to another in a primitive country or unsettled populations.’ sue an employer in the court of any State territory where there was no law of torts, It has been argued in the American of that plaintiff’s choosing. Upholding that the English courts could give redress. His context, that the courts of that country effect of the Federal Employer’s Liability Lordship conceded, however, that with the have offered little justification for the Ac t , Jackson J nevertheless said: ‘The rapid spread of civilisation the rule had differential treatment of State/federal and judiciary has never favoured this sort of much less importance. We may observe, interstate forum shopping. It has been shopping for a forum.’ 4 perhaps with some relief, that the spread suggested that the Supreme Court’s The precise collocation ‘forum of ‘civilisation’ between the States of aversion to State/federal forum shopping

44 A D D R E S S E S rests upon a myth of State/federal court the 273 largest public companies which that arise between federal and State parity which contends that the two court filed for bankruptcy between 1980 and courts. However the discussion must be systems as co-equals will produce similar 1997. The study showed a rapid increase viewed in the context of the full range of substantive outcomes with regard to in the rate of forum shopping. In the early options that may be open to a prospective federal rights. It is suggested that in that 1980s about twenty per cent of the cases litigant. Those choices may include resort co u n t r y , however, on some issues the were filed in a district other than where to an offshore court seen as offering results differ systematically. So it is said the company’s headquarters were located. forensic advantages not available in this that the federal courts are the only judicial Since 1994, more than half the filings took co u n t r y . By way of example, from my own forums in the American system capable of place in other districts. New York City was experience, in the late 1970s an enforcing counter-majoritorian checks in a the most popular destination in the 1980s. environmental organisation in Australia sustained, effective manner. The dominant In 1988 it clamped down on judge took action against Alcoa in the US policy against State/federal forum shopping. The companies moved to District Court in Philadelphia in respect of shopping ignores the fact that differences Delaware. In 1996, 86 per cent of the Al c o a ’ s bauxite mining processes in the in court systems exist and that something largest public companies filing south-west of Western Australia. The is at stake in the choice between them.13 bankruptcy did so in Delaware even action, however, was struck out, the judge Reference to the debate in the United though none had headquarters there. referring to the Australian litigators in States is not intended to suggest When the Chief United States District florid classical metaphor as akin to the immediate analogies between their court Judge in Delaware withdrew the large inhabitants of Troy seeking protection system and the Australia system. There bankruptcy cases from the bankruptcy from the heavenly palladium. On that are significant differences. The point to judges in February 1997, the rate of out- basis the judge seems to have viewed draw from the debates in both the English of-state shopping in Delaware fell sharply. himself as representing the Goddess and the United Kingdom jurisdictions, Professor LoPucki observed: Pallas. In a more recent example, in 1995, ho w e v e r , is that it is important to be clear This study shows that big businesses CSR brought an action in the US District about what it is we discuss when we don’t just take the judge or the court Court in New Jersey against the Cigna discuss ‘forum shopping’, to begin, so far that the system offers them…big Insurance Group seeking a judgment that as possible, with a value-free definition businesses act strategically to come insurance policies relevant to its liability and then to examine its implications for before the court or judge where they will for asbestos related claims were in effect public policy for better or for worse. get the best outcome. This pattern can’t for the critical years and covered pending The seventh edition of Bl a c k ’ s Law be explained by convenience; these and future claims. CSR contended that a Di c t i o n a r y offers a definition which is not companies are deliberately filing away purported release was invalid because it from their own headquarters. 14 overtly condemnatory: ‘The practice of resulted from coercive conduct violating choosing the most favourable jurisdiction US anti-trust laws which were seen as Opportunities for choice of forum in or court in which a claim may be heard.’ essential to its claim and only able to be Australia This is compared with ‘judge heard in the United States. The insurers, Where there is a controversy shopping’ which involves filing several law ho w e v e r , brought an anti-suit injunction amenable to judicial determination in suits asserting the same claims in a court against the manufacturer in the Supreme Australia, the following choices of forum or district with multiple judges in the hope Court of New South Wales, which may arise: of having one of the law suits assigned to a injunction was granted provisionally 1. Between an Australian court and favourable judge and discontinuing the bringing the American action to a the court of another country. others. complete stop. The High Court Butterworths Australian Legal 2. Between the High Court and a subsequently discharged that injunction.15 Di c t i o n a r y also defines the practice of federal or State court. Reference to the High Court is ‘forum shopping’ in neutral terms: 3. Between the Federal Court and a included in the choice of forum ‘Selection by a plaintiff of the court of State court. opportunities because, in recent times, the justice best suited to the plaintiff’s needs 4. Between a court of a State and a original jurisdiction of that Court to issue by reason of commercial, legal or personal court of another State or Ter r i t o r y . constitutional writs under s75(v) of the ad v a n t a g e . ’ Constitution has been increasingly used to 5. Between the courts of a State or Both definitions are essentially the challenge decisions under the Mi g r a t i o n Ter r i t o r y . same. Forum shopping is ultimately about Act 1958 (Cth). This development has choice: choice of forum by litigants. 6. Between the Federal Court and the occurred due to the limitation of grounds Forum shopping in the United States Federal Magistracy. of review in the Federal Court to those set may be seen as an enthusiastic application 7. Between a federal or State court and out in s476 of the Act which exclude, in t e r of Rosco Pound’s theories of legal realism. an administrative tribunal al i a , review on grounds of breach of the By way of example, a recent study by two established under federal or State rules of natural justice, Wed n e s b u r y Cornell Law School professors of corporate la w . unreasonableness, failure to have regard to bankruptcy filings, concluded that large 8. Between courts and tribunals on the relevant factors and taking into account companies that decide to file for one hand, and arbitration or irrelevant factors. The High Court has bankruptcy ‘shop for judges the way most alternative dispute resolution been unable to remit applications to the persons shop for groceries: they look for processes on the other. Federal Court except in respect of grounds the best deal.’ The study charted filings by falling within s476. Those restrictions may The focus of this paper is on choices

45 A D D R E S S E S

be seen as evidencing a perception of the element. The rule applies to courts driven for the most part by considerations Federal Court analogous to that of federal exercising both federal and non-federal of cost and expedition. courts in the US as ‘enforcing counter jurisdiction. Its stated rationale is two- Choices between curial and majoritorian checks’ which in this setting fold. One, it gives effect to the administrative tribunals are of importance may be viewed as any interference with predominant territorial concern of the and in the case of the Federal Court under the Executive. statutes of State and Territory legislatures the Administrative Decisions (Judicial The invocation of the original as required by s118 of the Constitution. Review) Act 1977 the Court has a jurisdiction of the High Court to deal with Two, it prevents forum shopping having discretion to refuse to grant an application decisions under the Migration Act, as it regard to the reasonable expectation of the where adequate provision is made under stood until recently, was a plain example parties and provides certainty as to the law which an applicant can seek a review by of forum shopping but hardly to be relating to liability. In the joint judgment the Court or another court or by another condemned having regard to the wider of Gleeson CJ, Gaudron, McHugh, tribunal, authority or person of the grounds of review available in that Gummow and Hayne JJ, it was put thus at decision which is impugned.20 jurisdiction. Criticism should be reserved 647: The final class of choice which is for those who devised and enacted a If the lex loci delicti is applied, subject mentioned is between courts and tribunals regime calculated to lead to the gross to the possible difficulty of locating the on the one hand and arbitral or other distortion of the allocation of judicial tort, liability is fixed and certain; if the alternative dispute resolution processes. resources that has occurred as a result. lex fori is applied, the existence, extent Curial and other adjudicative dispositions Some criticism may also be made of those and enforceability of liability varies are merely the tip of the iceberg in the who have lacked the imagination to according to the number of forums to resolution of potentially justiciable consider using the State courts as which the plaintiff may resort and disputes. The vast bulk of matters which alternative destinations for migration according to the differences between the could be or are commenced as laws of those forums and, in cases in review cases having regard to their federal proceedings in courts in Australia are federal jurisdiction, according to where jurisdiction under s39 of resolved through processes of negotiation the court sits. the Judiciary Act 1903 or mediation and the growth of the ‘The invocation (Cth) and s4(1) of the In that case the lex loci delicti wa s alternative dispute resolution industry and Jurisdiction of Courts New South Wales where the plaintiff involvement in it by members of the legal of the original (C r oss Vesting) Act 1987 suffered a workplace injury. He sued the profession is striking testament to the (C t h ) . 16 employer in the Australian Capital vitality of those alternative modes of jurisdiction of The choice that arises Territory as that was where he was resolution. They have the immense between federal and State employed. The damages recovery was advantages of economy, expedition and the High Court courts will be considered capped in New South Wales but not in the privacy and, of course, the ability to find a more closely below. Now AC T . Callinan J described the case as ‘a resolution that will enable important 18 to deal with that statutory cross-vesting clear example of forum shopping’. personal or commercial relationships to of State jurisdiction into Subject to procedural advantages between continue without the lasting or undue decisions under federal courts has been one court system and another the case will damage that adversarial litigation can struck down, this class of leave parties with less incentive to chose, pr o d u c e . the Migration Act, choice essentially derives at least between States and/or Ter r i t o r y The constitutional basis for choices from the concurrent federal courts according to the law of the as it stood until jurisdiction able to be particular jurisdiction. between exercised in both systems. Other avenues for choice between federal and State courts recently, was a Federal jurisdiction State courts are provided by the cross Choices may arise for litigants incorporates an accrued vesting legislation. Section 4(3) of each between federal and State courts plain example jurisdiction which can State cross-vesting Act confers original ultimately because the Commonwealth include claims arising and appellate jurisdiction with respect to Constitution provides for federal of forum shopping under the common law or State matters in the Supreme courts of the jurisdiction to be exercised by both federal under State statute which, other States or Territories. Choices of court and State courts. By s71 of the but hardly to if they are part of the are subject to control by the provisions of Constitution, the judicial power of the controversy before a the Act providing for transfer from the Commonwealth vests in the High Court of be condemned...’ Federal Court, may be Supreme Court of one State to the Australia, such other federal courts as the 19 determined by that court. Supreme Court of another State. Ch o i c e Parliament creates and such other courts The choices between is also enlivened by the provisions of the as it invests with federal jurisdiction. State courts arise from common law choice Service and Execution of Process Act 1992 Although the Constitution itself, unlike of forum rules recently affected by the (Cth) which provides for initiating process that of the United States, confers no decision of the High Court in John Pfeiffe r issued in one State to be served in another express power to create federal courts, its Pty Ltd v Rogerson. 17 By that decision the State. implied power to do so flows from the common law of Australia now requires that Choices between the courts of a phrase ‘such other federal courts as the the lex loci delicti be the governing law particular State or Territory hierarchy or parliament creates’ which appears in s71. with respect to torts committed in between the Federal Court and the As was said in the Bo i l e r m a k e r s ’ ca s e , Australia but which have an interstate Federal Magistracy are governed by express power was ‘…thought relevant statutes and will no doubt be unnecessary by the framers of the

46 A D D R E S S E S

Australian Constitution who adopted so in t e g r i t y , independence and impartiality Federal Court of Bankruptcy was created definitely the general pattern of Art III [of as courts in which federal jurisdiction may in 1930 and ultimately abolished on 30 the US Constitution] but in their variations be invested under Chapter III. That September 1995 following the retirement and departures from its detailed provisions principle takes one readily to the in June 1995 of Justice Sweeney, who was evidenced a discriminating appreciation of proposition that State parliaments cannot the last judge of the Federal Court of American experience’.21 Th e erode the independence of the State Ba n k r u p t c y . ‘autochthonous expedient’ of investing supreme courts in ways that would make The 1970s saw the creation of two federal jurisdiction in State courts was not them improper channels of the judicial major new federal courts. The first was the adopted in the United States because of power of the Commonwealth. So they must Family Court of Australia, established the perceived parochialism and lack of be ‘independent and appear to be under the Family Law Act 1975.28 In 1963 independence of some State courts. independent of their own State’s the Thirteenth Annual Legal Convention Alexander Hamilton observed that it legislature and executive government as of the Law Council of Australia was would be impossible to foresee ‘how far well as the federal legislature and informed by the then solicitor-general, Sir the prevalency of a local spirit [might] be go v e r n m e n t ’ . 26 Kenneth Bailey, that the attorney-general, found to disqualify the local tribunals for Sir Garfield Barwick Q.C., had been A brief history of federal jurisdiction the jurisdiction of national causes’. The authorised by Cabinet to ‘design a new There was a view early in the history constitution of some State courts would federal court with a view to consideration of federation propounded by Henry render them ‘improper channels of the by Cabinet for approval for legislative Bourne Higgins among others, that the judicial authority of the union’. In action’. The purpose of the new court was establishment of the High Court could be particular those where judges held office to ease the burden on the High Court. The delayed and the supervision of the at pleasure or from year to year would be so l i c i t o r -general was responding at that Constitution left to the State Supreme ‘too little independent to be relied upon for Convention to a paper presented by MH courts which were, bound by the an inflexible execution of the national Byers Q.C. and BP Toose Q.C..29 Th e Constitution by virtue of covering cl 5. In la w s ’ . 22 On the other hand Byers and Toose proposal suggested a 1903 however, the parliament passed the the Supreme courts of the more substantial change for a wider ‘...the Supreme Judiciary Act, providing for a High Court States of Australia were purpose. It rested on certain assumptions comprising a chief justice and two other seen by the framers of the which were contentious. The first of these courts of the justices. State courts were invested with Constitution as being of was that the original understanding of the federal jurisdiction under s39 of the uniformly high standard ‘in federal bargain contemplated the eventual States of Australia Judiciary Act and as Harrison Moore marked contrast with that creation of a complete structure of federal observed the power so to invest then was which obtained in the courts. The second was that there was no were seen by exercised ‘almost to its fullest extent’. The United States shortly after longer among members of the public the scheme of the section was: its establishment’. 23 strong State sentiment which had existed the framers of It might have been To embrace the whole of the matters of at the time of federation and which observed that the federal jurisdiction which it is not supported the use of State courts for the the Constitution intended to give to the High Court independence of State exercise of federal jurisdiction.30 exclusively, and to declare first, that the courts in Australia was, There was of course debate about the as being of State courts shall according to their under State Constitutions creation of the Court with FTP Burt Q.C. nature and degree have jurisdiction in and their colonial (as he then was) predicting that the ‘two uniformly high all of them, whether they are matters of predecessors, subject to which the court would have jurisdiction channel system’ would breed ‘complexity - legislative erosion. Subject under the State law or not; secondly, that and black motor cars’, that it would standard...’ to specific exceptions in no jurisdiction shall be exercised by the seriously reduce the status of State New South Wales and State courts in any of such matters, Supreme courts and would accentuate an Victoria, the State except as federal jurisdiction. 27 imbalance in the Australian judicial Constitutions do not entrench the For the greater part of the history of system under which too much inferior independence of the courts or protect the the Commonwealth, federal jurisdiction work was being done by superior courts. tenure or remuneration of State judges.24 has been exercised by State courts. The Q.C., then Deputy Leader But the fact of federation, s106 of the early development of a federal judicature of the Opposition, argued that as a matter Constitution and the provision of created by the Commonwealth Parliament of principle federal judges should legislative power to invest State courts was confined to specialist courts. The first interpret and apply federal laws. Garfield with federal jurisdiction has itself was the Commonwealth Court of Barwick acknowledged that the investiture provided them with a status and protection Conciliation and Arbitration, established of State courts with federal jurisdiction under the Constitution which they do not in 1904, which was succeeded by the was a potentially permanent and desirable derive from the Constitutions of the States. Commonwealth Industrial Court in 1956 feature of the Australian judicial system. For they are now ‘part of an integrated after the Bo i l e r m a k e r s ’ case, the relevant The jurisdiction of the Federal Court system of State and federal courts and non-judicial functions being hived off to would be limited to ‘special’ matters of organs for the exercise of federal judicial the Conciliation and Arbitration which bankruptcy and industrial law were power as well as State judicial power’.25 Commission. The Commonwealth obvious examples. Beyond those They cannot now be invested with Industrial Court was renamed the examples, no coherent policy for selection jurisdiction incompatible with their Australian Industrial Court in 1973. A of Federal Court jurisdiction was

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di s c l o s e d . 31 unaffected by the technicalities of Corporations Law, although this was After many vicissitudes, which it is prerogative remedies which were still, in dependent in part upon what was later not necessary to review here, the Court 1976, the main mechanisms of judicial found to be the invalid vesting of was established in 1976. The Federal review in the State jurisdictions. The jurisdiction under State laws. In January Court of Australia Bill was introduced into administrative law jurisdiction generally 1994, the Court acquired a new and the Parliament by the then attorney- gave the Court a foundation for developing demanding jurisdiction under the Na t i v e general, RJ Ellicott Q.C.. Previous more a stature and authority not ordinarily Title Act 1993 (Cth). wide ranging proposals were criticised on achievable by small specialist courts. The The enactment of s39B(1A) of the the basis that they would have removed Trade Practices Act 19 7 4 (Cth) also moved Judiciary Act in April 1997 conferred on from State courts the bulk of the federal the Court away from the conception of a the Court jurisdiction in any matter in jurisdiction which they exercised and specialist tribunal concerned with a which the Commonwealth is seeking an greatly weakened the status of those courts narrow band of federal statutes. Through injunction or declaration; arising under and the quality of the work dealt with by Part V of the Act and in particular the the Constitution or involving its th e m . 32 The rationale for a Federal Court at prohibition against misleading or interpretation; and arising under any laws that time was to put the existing federal deceptive conduct by corporations the made by the Parliament. The Court does court system on a more rational basis and Court became involved in mainstream not have jurisdiction to hear and to relieve the High Court of some of the commercial litigation.33 determine offences against federal laws workload it bore in matters of federal and The accrued jurisdiction of which although it may hear and determine territory law. According to the second more mention will be made below, picked prosecutions for pecuniary penalties under reading speech the government believed up non-federal claims which were part of the provisions of the Trade Practices Act. that only where there were ‘special policy the same controversy in which the federal By 1998 the sources of the Court’s or perhaps historical reasons for doing so claim was embedded. The adoption by the jurisdiction were to be found in 125 should original federal jurisdiction be High Court of a ‘practical judgment’ test federal statutes. vested in a federal court’. for the scope of that jurisdiction meant The growth of Federal Court Industrial law, bankruptcy, that related non-federal claims in the jurisdiction is said to have adversely ‘The Court’s trade practices and judicial Federal Court were not often defeated for affected the status of State Supreme review of administrative want of jurisdiction.34 The trade practices courts. In its 1987 Report the history indicates decisions answered those jurisdiction was initially exclusive, a fact Constitutional Commissions Advisory criteria. The court would which gave rise to possible difficulties Committee on the Australian Judicial an evolution from act as an appellate court between federal and State courts System reported a corresponding decline from State courts exercising particularly in relation to the exercise of in the role of the courts of the States on a specialist body federal jurisdiction in the accrued jurisdiction in common law each occasion when the Commonwealth matters of special federal claims or claims arising under State laws. vests jurisdiction in a federal court. If the dealing with a concern. This was later overcome by legislation and areas of jurisdiction of the federal courts earlier by a determination by the High continued to expand the courts of the The development of narrow band of Court that the accrued jurisdiction was States would become more and more Federal Court jurisdiction non-exclusive and discretionary.35 Th e restricted in the scope of their jurisdiction. federal statutes, The initial original Co u r t ’ s exclusive jurisdiction under the It was the view of the Committee that the jurisdiction of the Court anti-trust provisions of Part IV of the trend was in favour of expanding the to one which is covered bankruptcy, Trade Practices Act gave it a central role jurisdiction of federal courts and although industrial law, trade in the development of competition law in the pace of that change might alter or be approaching practices, appeals from the Australia. The volume of cases in that reversed from time to time, the probability Administrative Appeals jurisdiction is much smaller than the was that over all it would continue if a court of general Tribunal and compensation volume of cases under Part V of the Act. nothing further were done. While that may for Commonwealth However their significance and the special have been a perception at the time, in my jurisdiction.’ government employees. By interface they offer between law and opinion it is not correct today. This is a s39B of the Judiciary Act, economics has attracted considerable matter discussed further below. enacted in 1983, it was professional and academic interest. The Court’s history indicates an given jurisdiction over the grant of Eleven years after its establishment, evolution from a specialist body dealing prerogative and injunctive relief against the Federal Court acquired exclusive with a narrow band of federal statutes, to officers of the Commonwealth in the same jurisdiction in taxation matters and one which is approaching a court of terms that such jurisdiction was conferred original jurisdiction under intellectual and general jurisdiction. Professor James on the High Court by s 75(v) of the industrial property laws. Appellate Crawford predicted in 1993 that if a Co n s t i t u t i o n . jurisdiction in these areas is exclusive. In provision such as s39B(1A) of the It is to be noted that although January 1989 it was invested with civil Judiciary Act were to be enacted, that described as aspects of its specialist admiralty jurisdiction to be exercised change would complete the conversion of jurisdiction, the administrative law and concurrently with State and Ter r i t o r y the Court into what he called ‘a superior trade practices jurisdictions of the Court Supreme courts.36 In 1991, its jurisdiction court of general jurisdiction in Australia’.37 in fact were extremely broad. The ADJR was further extended to cover civil It is notable that some interest groups Act provided very powerful tools for the proceedings arising under the have seen the Court as now insufficiently review of Commonwealth executive action

48 A D D R E S S E S

specialised for specific areas of its jurisdictions. There seems to have been the controversy to the Court had been jurisdiction. Submissions have been made little evidence of judicial empire building resolved adversely to the applicant by a from time to time for the establishment of based on the cross-vesting legislation. decision on the pleadings. There was left a a specialist intellectual property court or a Even before cross-vesting legislation was claim for damages in negligence which, specialist division of the Federal Court for enacted in 1987 the doctrinal basis of the notwithstanding the striking out of the that purpose. Other proposals have been accrued jurisdiction was reasonably federal question, retained its character as put for a specialist division to deal with settled and did not give rise to a a subject of federal jurisdiction.42 economic issues under competition law or significant volume of jurisdictional debate. That case was brought as a a specialist human rights court or division The term ‘accrued jurisdiction’ representative proceeding under Part IVA and a specialist native title court or sometimes used to describe alleged of the Federal Court of Australia Act 1976. division. It is also perhaps an index of the Federal Court empire- building is a The High Court having granted special jurisdictional development of the Court metaphor applied in the analysis of the leave to appeal against the jurisdictional that it now operates specialist panels in content of federal jurisdiction. It does not decision and having granted special leave some aspects of its jurisdiction. describe any constitutionally inferior to appeal against the decision of the Full The development of the Court species of federal jurisdiction. It comes Court in Fe m c a r e v Bright relating to the described here in outline has not been directly from the Constitution and the constitutional validity of Part IVA, the trial without its ebbs and flows. The decision of terms in which the Constitution provides judge decided to transfer the matter to the the High Court in Re Wak i m resulted in for investing federal jurisdiction in State Supreme Court of Victoria. He did so the loss of Corporations Law jurisdiction, courts and defining the jurisdiction of under Commonwealth cross-vesting cross-vested in the Federal Court under federal courts. The authority of the legislation so that any doubt as to the State law and the transfer under short-term Parliament under the Constitution extends jurisdiction of the court in which the remedial legislation of pending matters to to defining the jurisdiction of any federal action proceeded could be avoided. the Supreme courts of the States.38 court, other than the High Court or Federal/State choices and a single Although the Court has investing jurisdiction in State courts with now been revested with respect to ‘matters’ of the kind mentioned Australian judicature ‘There seems jurisdiction under the new in ss75 and 76 of the Constitution. Those There is no doubt that there are referred power of the include matters arising under any laws important areas of federal jurisdiction in to have been Commonwealth, it will be made by the Parliament. The concept of which litigants can chose to proceed in a sometime before it returns ‘matter’ covers the entire controversy State Court or in the Federal Court or, little evidence of to the volume of which the parties bring to the Court for indeed, the Federal Magistrates Court. But corporations work it had determination. If the controversy includes the choice, if thought inappropriate, can judicial empire prior to the High Court questions which are non-federal because be controlled having regard to decision. This will vary they arise under common law or State considerations of comity between the building based on from State to State. statutes, they are nonetheless part of courts. Parallel proceedings in State and federal jurisdiction. Although there was federal courts arising out of the same The present position the cross-vesting authority in the 1980s to the effect that the subject matter can be stayed so that the Speaking anecdotally accrued jurisdiction was discretionary that litigants have their dispute determined, so and without the benefit of legislation.’ must be read in the light of subsequent far as possible, in one court. Federal statistical evidence, it is authority asserting the obligation on the courts can transfer proceedings to State fair to say that the Court’s courts of the country to exercise the courts under the provisions of s5 of the initial dominance of Part V litigation jurisdiction which is conferred on them.39 Jurisdiction of Courts (Cross-Vesting) Act under the Trade Practices Act has The existence of that duty does not or , in the case of trade practices litigation, diminished. In the twenty six years since 43 preclude the existence of exceptions based s86A of the Trade Practices Act. that Act has been in place a whole new on the availability of a more appropriate The exercise of a choice to proceed in generation of practitioners has arrived alternative court.40 The discretionary the Federal Court or in a State court which is comfortable with its provisions character was questioned by Gummow and exercising federal jurisdiction is, and regards s52 as a tool of mainstream Hayne JJ in Re Wak i m where their according to the definition discussed litigation. So it is invoked routinely in Honours said: ea r l i e r , ‘forum shopping’. The existence State courts together with the equivalent and exercise of that choice is provisions of the various fair trading Acts It may be that the better view is that the references to ‘discretion’ are not contemplated by the Constitution and which take Part V into areas beyond the intended to convey more than that sanctioned by laws made under it which reach of the Commonwealth constitutional difficult questions of fact and degree confer concurrent federal jurisdiction. It is po w e r . It was perhaps in the two areas of will arise in such issues - questions also entirely consistent with a vision of the Part V and Corporations Law that the about which reasonable minds may well Australian system of State and federal Federal Court’s role was perceived as differ.41 courts as a single judicial system under potentially damaging to the State courts. It The Federal Court recently reasserted the Commonwealth Constitution serving a is noticeable however that while the that the circumstances in which it would single Australian common law and statute wholesale cross-vesting in the Federal decline federal jurisdiction properly laws for the Commonwealth, the States Court of jurisdiction under State laws was invoked were exceptional notwithstanding and the Territories made by their in effect, it did not appear to alter that the federal question which brought respective parliaments. As Deane J said: significantly the balance of work between

49 A D D R E S S E S

The creation of national jurisdiction will serve the interests of the whole a special bench of the New South Wal e s involving the application of the new co m m u n i t y . Court of Appeal. Justice Ipp of Wes t e r n national law, with its Commonwealth There will undoubtedly from time to Australia was recently seconded to the and State components, by non-State time be occasions in which litigants New South Wales Court of Appeal for courts and the provision for the perceive State or federal courts as twelve months and judges of that Court conferral of federal jurisdiction upon potentially easier for particular classes of visited Western Australia to sit in the State courts provided the mechanism for litigation or even sympathetic to particular appellate jurisdiction of the Supreme the administration of the new national law as a single unit. The conferral of classes of litigant. A safely distant Court there. The New South Wales Court general and final appellate jurisdiction example is the Delaware District Court in of Appeal has recruited a number of upon [the High Court] imposed an bankruptcy matters. Provided there is retired judges of the Federal Court to act ultimate unity upon the various court adequate communication between for periods as judges of that Court. systems entrusted with the jurisdictions and vigilance to address any These developments will hopefully administration of justice under the new perceptions of imbalance that may occur, continue and strengthen the sense of national law. The provisions of s 109 of these should be at worst short term common membership of a national the Constitution ensured coherence problems which will not affect the long ju d i c i a r y . Justice Santow of the Supreme between Commonwealth and State laws term integrity of the Australian judicial Court of New South Wales and Mark operating within the national system by system. There is little evidence in the Leeming, a New South Wales barrister, a invalidating inconsistent State laws to Australian system of choices of few years ago proposed a system under the extent of the inconsistency. 44 jurisdiction based upon the kinds of which, in certain classes of case, The reference to the administration of considerations which would be regarded particularly where consistency in the law the new national law as ‘a single unit’ is as illegitimate. I say that having regard to was desirable, composite appellate borrowed from Sir Owen Dixon’s statement recent debate about the perceived benches drawing on the Supreme courts of to a United States audience that Australia respective approaches of the Federal the States and Territories and the Federal has a national system of Court and the State Supreme Court in Court might be constituted. The point of law which is properly to be Victoria to industrial matters. Against the the suggestion was to endeavour to reduce ‘Choices are regarded as ‘a unit’ or ‘a background of the historical context in or avoid precedential conflict between 45 single legal system’. Mo r e which the term ‘forum shopping’ arose and State courts and the Federal Court made under a recently Kirby J has, in in particular its American origins and particularly in areas like Corporations similar vein, on the topic of practice, there is in my opinion little, if La w . This was on the basis that the High constitutional interstate choice of law any basis, within Australian jurisdictions Co u r t ’ s increasing workload limits its rules, referred to the for concern about federal/State forum capacity for appellate intervention in system which operation of institutions shopping. Choices are made under a resolving such conflicts and refining the within a federal nation constitutional system which contemplates la w . It was proposed as a minimalist contemplates which reinforce principles the possibility of choice and legitimate solution to the overloading of appellate of comity and feelings of choice is healthy. capacity aimed at enhancing the appellate the possibility of common identity and It is fair to say also that generally sy s t e m . 47 While nothing much further has national unity. He said: speaking there is, at least among the been heard of that proposal some of its choice and In Australia, such judges of the Supreme courts and the objectives may be achieved by the institutions include the Federal Court, a sense of common increased use of mixed interstate benches legitimate choice integrated courts system, the membership of an Australian judicature. for determining issues of precedential unified common law, the The judges attend a conference in January importance, albeit the interstate bench is healthy.’ growth of federal legislation each year at which their experiences and might be formally constituted as a sitting and the predominantly perceptions are shared and acquaintances of the appeal court of one or other of the territorial concern of the statutes of the several States and and friendships renewed. The chief relevant States. There is a constitutional Territories. 46 justices meet together regularly as difficulty in constituting State court members of the Council of Chief Justices members as members of the Federal Court The exercise of choice of court must to consider matters of common concern to without conditions of appointment be viewed within this large national the judiciary. There is an increasing mandated by Chapter III of the framework. The factors affecting such number of examples of cases in which a Constitution. However, members of the choice will be various and will properly judge of a State supreme court will sit as a Federal Court could be commissioned as and healthily include considerations of member of another State supreme court to State judges for the purposes of such expertise, cost and efficiency. Trends in deal with a particular case for a particular sittings. This process could be facilitated such choices may cause the courts period. In the recent appeal to the New by a protocol among the courts about the themselves to reflect upon their rules and South Wales Court of Appeal in which circumstances in which it would be seen processes. Human nature will Justice Heydon of that Court was a as appropriate to constitute a composite undoubtedly inject into such reflection a respondent, Chief Justice Malcolm of the bench. Indeed, in cases of important competitive desire to maintain a standing Supreme Court of Western Australia sat national significance and, subject to as an institution of the highest quality. with Justice McPherson of the Queensland statutory restrictions imposed in the Provided that competitive instinct is kept Court of Appeal and Justice Ormiston of jurisdiction of choice, a bench composed within reasonable bounds and does not the Victorian Court of Appeal to constitute of judges from each of the State and lead to long term distortion of priorities, it

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Territory jurisdictions together with a 1 304 US 64 (1938) 25 Kable v Director of Public Prosecutions (NSW) judge of the Federal Court could be 2 Klaxon Co v Stentor Electric Manufacturing (1996) 189 CLR 51, 114-115 (McHugh J), see also 102 (Gaudron J) and 143 (Gummow J) constituted as a special sitting of, for Co 313 US 487 (1941) 26 Ibid, 116 (McHugh J) example, the New South Wales or 3 Horowitz, ‘Erie RR Co v Tompkins - A test to determine those rules of State law to which its 27 Harrison Moore, W (1910) The Constitution of Victorian Court of Appeal. There was a doctrine applies’, 23 So. Calif. L.Rev 204 at the Commonwealth of Australia 2nd edition suggestion in the Santow - Leeming article 215 reprint Legal Books, Sydney 1997 p 217 that this would be done by nomination of 4 Miles v Illinois Central Railroad Co 315 US 28 Under an option available under the Family relevant cases by the High Court. It could 698 (1942) at 706 Law Act 1975, Western Australia established also be done by a straight exercise of what 5 Covey Gas & Oil Co v Checketts 187 F.2d 561 a State Court, the Family Court of Western (1951) at 563 Australia. Federal jurisdiction was invested in could be called cooperative judicial it under the provisions of the Commonwealth federalism. 6 Wright, ‘The federal courts and the nature and Act. Each of the judges of that Court also quality of State law’, 13 Wayne L. Rev 317, There is of course, from time to time, holds a commission on the Family Court of 333 (1967) cited in ‘Forum shopping Australia. talk of institutional unification of the reconsidered’ (1990) 103 Harv L. Rev 1677 and 1679 29 Byers MH and Toose BP (1963), ‘The Australian judicature whether at the level necessity for a new federal court: A survey of of intermediate appellate jurisdiction or at 7 (1870) LR 6 QB 1 the federal court system in Australia’ 36 ALJ both appellate and trial levels. These 8 John PfeifferPty Ltd v Rogerson (2000) 172 308 debates will ebb and flow and change may ALR 625 30 These assumptions have been contested - see 9 Chaplin v Boys [1971] AC 356 at 401 Commonwealth Parliamentary Debates House come. No institution or institutional of Representatives, 24 July 1974 598 (RJ arrangement has a right to immortality. 10 The Atlantic Star [1973] 1 QB 364 at 382 Ellicott Q.C.). See also Rogers, Andrew The present time however is one in which 11 The Atlantic Star [1974] AC 436 at 471 (1980), ‘Federal/State courts: The need to restructure to avoid jurisdictional conflicts’ 54 governments and parliaments are inclined 12 Keeton v Hustler Magazine Inc 465 US 770 ALJ 285. The rebuttals however go too far in to a degree of hostility to the independent (1984) suggesting that the Convention delegates saw role of courts and a desire to incorporate 13 Forum Shopping Reconsidered (1990) 103 the creation of federal courts as unnecessary Harv L Rev 1677 at 1683 except in the last resort - Stack v Coast them as a kind of extension of Securities (No 9) Pty Ltd.. bu r e a u c r a c y . There are occasionally 14 Harvard Law School News www.law.harvard.edu/news/lopuckibankruptcy 31 Barwick (1964) op cit at p 2 dramatic gaffes from ministers or officials .html. See Eisenberg and LoPucki ‘Shopping 32 Commonwealth Parliamentary Debates, H of which indicate a failure to understand the for judges: An empirical analysis of venue R 21 October 1976 p 2110 essentials of the separation of powers. choice in large Chapter 11 reorganisations’, 84 Cornell L Rev (1999). See also Rasmussen 33 French RS, ‘A lawyer’s guide to misleading or More insidious are pressures from and Thomas, ‘Timing matters: Promoting deceptive conduct’, (1989) 63 ALJ 250; executives and legislatures to homogenise forum shopping by insolvent corporations’, 94 Pingilley W, ‘Section 52 of the Trade Practices Act - A plaintiff’s new Exocet’ (1987) 15 the courts administratively so that they NW U L Rev 1357 (2000); David A Skeet Jnr, ‘Bankruptcy judges and bankruptcy venue: ABLR 247 acquire the texture and appearance of Some thoughts on Delaware’, 1 Del L Rev 1 34 Fencott v Muller (1983) 152 CLR 570 executive bureaucracies. It may be (1998); David A Skeet Jnr, ‘What’s so bad 35 Stack v Coast Securities (No 9) Pty Ltd (1983) thought that a good defence against that about Delaware?’, 54 Vand L Rev 309 (2001); LoPucki and Kalin, ‘The failure of public 154 CLR 261 trend is a plurality of small, competent, company bankruptcies in Delaware and New 36 Admiralty Act 1988 (Cth) and collegiate courts which place a high York: Empirical evidence of a ‘race to the bottom’, 54 Vand L Rev 231 (2001) 37 Crawford, James (1993) Australian Courts of value on the independence of individual Law 3rd Edition, Oxford University Press, judges and the unique nature of the 15 CSR America Inc v Cigna Insurance Australia Melbourne p 168 Ltd (1997) 189 CLR 345 judicial function. Such a plurality as 38 Re Wakim; Ex parte McNally (1999) 198 CLR presently exists within Australia is an 16 See the extensive, albeit obiter, discussion by 511 Lee J in Ayub v Minister for Immigration and expression of a single national judicial Multicultural Affairs (2000) 181 ALR 522 at 39 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 system best suited to meet, in a 527-530 cooperative way, the contemporary 17 (2000) 172 ALR 625 40 Lindell G, ‘The justiciability of political questions: Recent developments’ in Lee and challenges of serving the community and 18 172 ALR at 673 Winterton (eds) Australian constitutional delivering justice according to law. The 19 Jurisdiction of Courts (Cross-Vesting) Act 1987 perspectives (1992) pp 218-223 fact that choices may exist as an incident (Vic) s5(2) 41 Re Wakim at 588; And see generally Johnson of that plurality seems a small price to pay, 20 Administrative Decisions (Judicial Review) Act Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 600-603 if it be a price at all. 1977 s10(2)(b) 21 R v Kirby; Ex parte Boilermakers’ Society of 42 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd Australia (1956) 94 CLR 254 at 268 (2000) 104 FCR 564 22 Hamilton A, Jay J and Madison J (1787) The 43 See Bell Group Ltd v Westpac Banking Federalist, Reprint EM Earle (ed), Modern Corporation (2000) 104 FCR 305 Library New York 1937 No 81 p 528 44 Breavington v Godleman (1988) 169 CLR 41 23 Sawer G, Australian federalism in the courts, at 124 Melbourne University Press (1967) pp.20-21, 45 Dixon O, ‘Sources of Legal Authority’, Jesting Barwick, ‘The state of the Australian Pilate (1965) pp 198-202 judicature’ (1977) 51 ALJ 480 at 482 46 John Pfeiffer Pty Ltd v Rogerson (2000) 172 24 McCawley v The King [1920] AC 691 at 713; ALR 625 at 657 Constitution Act 1902 (NSW) s 7B; Constitution Act 1975 (Vic) s 18 47 Santow GFK and Leeming M, ‘Refining Australia’s appellate system and enhancing its significance in our region’, (1995) 69 ALJ 348

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governors-general, governors and administrators of the Northern Te r r i t o r y, have performed virtually all the head of A practical way to state responsibilities for the Australian federation. They operate as advised by their Australian ministers and are entirely free of any control by the Queen. Our only remaining early resolution of constitutional dependence is that whoever is monarch of the United Kingdom is monarch of Australia and the formal head of state of the Commonwealth and each State and Te r r i t o r y. The only constitutional function the Queen now performs is the the head of state issue fairly mechanical and infrequent one of complying with the binding convention to appoint or dismiss the governor- g e n e r a l , by Richard E McGarvie* State governors or administrator of the as advised by the prime minister or State premier. Richard McGarvie previews the conference to be The issue which faces us is whether we have reached the hosted by the Corowa Shire Council on 1 and 2 stage where the whole federation should separate from the December 2001, as the end piece of the federation M o n a r c h y. y e a r. The conference aims to perform the same While that would be a relatively small change, it is a function as the Corowa Conference of 1893, which difficult one. The quality of our federal democracy has endured recommended the process that was followed to resolve mainly because the law of its constitutions and the operating the issue of whether Australia should federate. + constitutional system developed on that, between them leave Our strong and stable federal democracy is a priceless power holders no real option but to exercise their powers community asset which belongs to the people. So does the consistently with the continuation of democracy and its responsibility for keeping it strong and ensuring that whenever safeguards. They have that effect because they combine to it is adapted to fit changing circumstances, this provide incentives and disincentives and to bind power holders is done in a way that preserves or improves it. to act in that way. Particularly important are the constitutional ‘The issue is conventions which are made binding on power holders by the Is early resolution necessary? way the constitutional system actually works and the non-legal A Newspoll in September 1999 showed 95 whether we have penalties it imposes for their breach. per cent agreeing that the head of state should The main difficulty in moving to complete constitutional be an Australian, 88 per cent strongly agreeing. reached the stage autonomy is to ensure that a model which replaces the In the referendum two months later only 45 per Monarchy would not reduce the incentives and disincentives cent voted for the package offered and no State of history where provided by the operation of the constitutional system and gave majority support. This indicates that over would not lead it to work in a way that would weaken or destroy 40 per cent of voters were not satisfied they were we should cast off the binding power of those conventions. Avoiding these offered an acceptable package and voted ‘no’ unintended consequences depends very little on a knowledge despite their desire for an Australian head of the legacy of of law but on a knowledge of humans and their behaviour state. A later study shows 89 per cent agreeing within organisations, particularly when influenced by the an Australian should be head of state, 70 per colonial times, impulsive attractions of obtaining or retaining power. cent agreeing strongly. which gave us a That shows a latent instability in our What is needed for effective resolution? constitutional system. Constant wrangling over The experience of resolving the issue of whether Australia head of state in a basic features of the constitution has a should become a federation, and of the 1999 referendum, show destabilising effect in a federal democracy. That what will and what will not resolve the head of state issue. It foreign country...’ has been the experience of the long-running must be resolved in a constitutional way which makes full use series of constitutional disputes in Canada since of the resources of people, parliaments and governments in the late 1970s. It would not be responsible for working out the proposal ultimately put to referendum. the Australian people to leave the body politic unhealthy, with The issue will be resolved only by a referendum vote upon a constitutional running sore where about 90 per cent do not a proposal that can genuinely be presented so as to catch the identify with a central feature close to national sentiment. public imagination and vision, and where people can vote free of partisan political impulse and secure in the knowledge that What is the issue? whichever way the vote goes our democracy and federation will The issue is whether we have reached the stage of history be safe for future generations. where we should cast off the legacy of colonial times, which In practice the issue will be resolved only in two events. If gave us a head of state in a foreign country on the other side of a referendum passes. Or if a sound and acceptable proposal for the world, and finally attain entire constitutional autonomy. change is strongly put and voters reject it because of a genuine Since 1788 we have moved so far in that direction that only preference against making the change at the present stage. a slim residue of constitutional dependence on Britain remains. Both those events depend on there being a sound and For years the operative or de facto heads of state, the acceptable proposal. + ‘A practical way to early resolution of the head of state issue’ by Richard The effective resolution of the issue is retarded by loose E McGarvie, published in (2001) 117 Victorian Bar News, p. 38 thinking. Regarding or describing the issue in the vague terms * Richard McGarvie was formerly a Supreme Court judge and govenor of of whether Australia becomes a republic is an instance of this. Victoria, 1992-1997.

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The word ‘republic’ distracts attention from the realities and a week before the referendum. It indicated 53 per cent of ALP rouses conflicting responses based on emotion. Use of the word voters voting ‘yes’ but 63 per cent of coalition voters voting has led many to concentrate on copying the constitutional ‘ n o ’ . structures of very different overseas republics rather than on Although it was put together as we approached the how best to maintain the strengths of the federal democracy centenary of federation, paradoxically the designers and that has been evolved to suit Australia’s history, tradition and promoters of the referendum package hardly looked at, and culture. In some, the word evokes utopian ecstasy which never seriously considered, a resolution of the issue for the convinces them that if we become a republic our trade will whole federation. The referendum was confined to the automatically increase and all our problems become easier to Commonwealth unit of the federation. People could not vote solve. In others it has the opposite effect. Within living memory secure in the knowledge that whichever way the vote went our we have seen republics which produce good democracy, such federation would have been safe for future generations. The as the United States and Ireland. But we have also seen the destabilising effect if the referendum had succeeded with one republics that produced the tyrannies of Hitler, Stalin, Mao or two States strongly dissenting would have been Zedong, Idi Amin, Pinochet and Robert Mugabe. This considerable. The majority in the dissenting States would have predisposes people, particularly those who or whose families been forced into a system of government for the Commonwealth came to this country to escape the tyrannies of such republics, in which they lacked confidence. Although theoretically to regard all republics with repugnance. It is better to use tight possible for them to remain monarchies, circumstance and and objective words which do not distort clear thinking and ridicule would have forced the dissenting States to become which convey what is actually proposed. Since the 1999 republics at State level. This would have produced a referendum the issue is increasingly being described as the destabilising factor in the federation, unequalled since We s t e r n ‘head of state issue’ and it is recognised that the real question Australia voted in 1933 almost two to one to secede from the is whether the Australian federation finally separates from the federation. Monarchy and attains the constitutional self-sufficiency of a The referendum package could not be presented so as to nation state. catch the imagination and vision of Australians. A referendum to separate the whole federation from the Monarchy could be ‘The word D i d n ’t the 1999 referendum resolve the issue? presented as completing the long sweep of evolution from being The package rejected at the 1999 totally dependent on Britain in 1788 to becoming finally totally ‘republic’ referendum lacked a number of the attributes self-sufficient. That was not open to the advocates of change in which are essential if a referendum vote is to 1999. If the referendum had succeeded, most of the federation distracts attention resolve the issue. I refer only to some of them. – all of the States – would still have been monarchies. The The package was not developed in the advocates had to content themselves with extolling the virtues from the realities constitutional way, in which the resources of of novel fittings and fixtures in the package. people, parliaments and governments are fully and rouses utilised in working out the proposal put to What is the aim of the Corowa Peoples Conference 2001? referendum. In reality, the people, parliaments The conference, to be hosted by the Corowa Shire Council conflicting and governments had very little involvement in on 1-2 December 2001 as the end piece of the federation year, putting the package together. Instead we sought aims to perform the same function as the Corowa Conference of responses based to resolve the issue in a privatised way. The main 1893. It recommended the process that was followed to restart influence on the form it took was a private the stalled move to resolve the issue whether Australia should on emotion.’ organisation, the Australian Republican federate and to progress it to resolution. Movement. The main critic of the package was This year’s conference will confine itself to recommending another private organisation, Australians for a process for early resolution of the head of state issue. It will Constitutional Monarchy. not consider whether the Australian federation should separate The process by which the package was determined was not from the Monarchy nor the merits of models to replace the one which led people to vote free of partisan political impulse. Monarchy in that event. It will consider a process that will The process was designed and operated so as to suit the empower the people to decide those questions in an informed, purposes of the government of the day. John Button has fair and effective way. observed that Paul Keating woke up republican sentiment in It will have the advantages of the lessons that come from 1993 and understood its symbolic power. ‘He held it in his the experiences of federation and the 1999 referendum. hand like the ‘Welcome Stranger’ gold nugget. Then he Why is it a peoples conference? dropped it in the murky waters of acrimonious partisan It is designed to enable the conference members to make politics.’ What he did was to brand the model as the one recommendations in exercise of their responsibility to ensure endorsed and promoted by his party. To brand it that way and that if Australia separates from the Monarchy, it is done in a use it in extracting political advantage from his party’s way which preserves or improves the strength of our federal opponents was to brand it a referendum reject. To negate the d e m o c r a c y. The influence of the people is essential if the political advantage over the Coalition that Keating and his stalled move to resolve the head of state issue is to be party were deriving, undertook to hold a r e s t a r t e d . convention and put to referendum a model with clear support, The reality at present is that the main political parties and the 1999 referendum was the result. share a strong interest in retarding resolution of the issue. They Resolution of the issue became to a large extent politically all had their fingers badly burnt in the referendum and partisan. This showed in the Newspoll of voting intention taken

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naturally do not wish to repeat the experience. Apart from e v e r, has a conference been convened which combines in a enduring the strains of permitted disagreement between party national task members of the public and community leaders of members, the Prime Minister, who favoured a ‘no’ vote, carried all viewpoints. Seldom has there been such a prospect of non- only 65 per cent of the Liberal Party’s most recent electoral partisan approach to the recommendation of process. constituency that way. The Nationals opposed the package but How did the conference originate? a number of senior members broke rank and supported it, and John Lahey asked me to launch his book, Faces of the party carried only 80 per cent of its constituency to a no Federation: An Illustrated History. On reading it I saw how vote. Labor supported a ‘yes’ vote but carried only 57 per cent much the experience of federation confirmed the practicality of of its most recent electoral constituency that way. the process advanced by a working group at the 1998 The Coalition is treating the issue as having disappeared Constitutional Convention and in my book, D e m o c r a c y, to with the referendum. Labor’s approach is first a plebiscite on resolve the head of state issue for the whole federation. I said whether we desire an Australian head of state, then another so in my launch speech. Sir Zelman Cowen read the speech plebiscite on the preferred model and ultimately a referendum and in his notable lecture to the St James Ethics Centre in on whether to change the constitution. That seems only the Melbourne on 31 October 2000 urged Australia to follow that start, as it does not appear to encompass resolving the issue for process, which he saw as combining ‘political realism with the States. If that process eventually resolved the issue, it expert advice’. Jack Hammond Q.C. read the speech and the would take many years. lecture and came up with the idea of Corowa again taking the Fortunately many within all parties see that the national initiative. He put it to the Mayor, Cr Gary Poidevin, who interest demands an early resolution of the issue. responded ‘Sure it can be done’. Jack Hammond and I About half the Corowa Conference will be self-selecting. presented a paper and spoke at Corowa. Two days later, on 19 They will be members of the public who respond to advertised December 2000, the Corowa Shire Council decided to host the invitations to register. Up to a quarter are automatically invited conference. Sir Zelman Cowen is its Patron and will give the because they have constitutional experience from holding opening address. office related to government. They include current and former prime ministers, premiers ‘Fortunately What process will the conference consider? and leaders of the opposition; former operative The conference will consider a number of processes, set heads of state; current Australian presidents of many within all out in some detail on its web site. the main political parties, leaders of One process prepared by Jack Hammond Q.C. and me for parliamentary parties, independent members of parties see that consideration proposes that the conference appoint a high level parliament, presiding officers of the parliaments and non-partisan drafting committee to prepare legislation to and councillors holding office in the main local the national interest establish all-party committees within each of the parliaments. government organisation in Australia. The other First, the State and Territory committees would each members will be people of all views who have demands an early investigate, listen to their community and report on two experience or knowledge relevant to questions: recommending a process for consideration of a resolution of 1 Which head of state model would best preserve or constitutional change. They include people improve our democracy if it replaced the Monarchy? holding the various positions held on the head of the issue.’ 2 Which method of deciding the head of state issue would state issue and those with experience in place least strain upon our federation? business, unions or other organisations. Then the all-party committee in the Federal Parliament, Can the conference work in a non-partisan way? with a representative from each State and Territory committee, For a conference to recommend the best process for would give a report on those questions and append to it the resolving the head of state issue, Australians expect the State and Territory reports. That report would go to the membership to include people of all viewpoints and that each proposed coordinating authority, the Council of Australian will vote according to what they individually think best for our Governments (COAG) and be widely publicised on the Internet community and future generations. Every Australian, whatever and elsewhere. their political preference and whatever their position on the All-party parliamentary committees have a good record in head of state issue, shares an identical interest in identifying Australia for their reports on questions where the political and following the best process. It is not an occasion for parties have no conflicts of interest. Much of our best partisan voting on the dictates of a party, group or faction. legislation comes from them. The proposed process would start The response from all community sectors has been with investigation and reports by committees within the magnificent. A crucial lead was given by the early agreement parliament closest to the people of a State or Te r r i t o r y. This will of Australian presidents of political parties, Shane Stone come immediately to people’s attention and begin to provide (Liberal), Greg Sword (Labor) and Michael Macklin the information they need to make their decisions. The (Democrats) to attend the conference. Showing similar capacity of the process to provide the people with information leadership, Greg Barns, Australian Republican Movement and expert advice from a variety of sources is one of its great Chairman and , National Convenor of Australians s t r e n g t h s . for Constitutional Monarchy, are attending. So is business It is proposed that on the second question, the l e a d e r, Stella Axarlis. Former governors, Gordon Samuels parliamentary committees consider the following method of (NSW), former chief justice, Sir Gerard Brennan and former deciding the issue without strain on the federation. High Court justice, Sir , will be there. Seldom, if With the community informed by the work and reports of

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the parliamentary committees and media discussion of it, there time should be left for discussions before that is done. would be a plebiscite in which the people would express their Whatever satisfactions come from sessions of endless talk that preference between the models supported by either the lead only to more talk and never to decisions or action, the majority or a minority in the report of the federal parliamentary need for Australians to move from theory and face up to taking committee. The people of each unit of the federation, the practical steps, must outweigh the temptations of serial Commonwealth and each State and Territory would choose the postponement. Discussions have gone on since 1993 and if the model they would prefer for their unit if it separated from the propounders of an alternative process cannot put it on the M o n a r c h y. Each Australian voter would mark a ballot paper conference web site in as much detail as the one displayed showing their preference of model for the Commonwealth and since last May, and thus expose it to public scrutiny well before another showing their preference for their State or Te r r i t o r y. the conference, it must have little substance. There is no constitutional necessity for each unit to have the It is not only the deepening constitutional running sore same type of model though that is the most likely outcome. The mentioned earlier, that should impart a sense of some urgency. traditions, culture and operating systems of government within We now have an opportunity we have not had for years and each unit are essentially the same as within each other unit which may not last for long. At present no political party is and it is difficult to see why a model considered best for one identifying itself with a particular model and promoting it. The unit would not also be considered best for the others. The fact that they are licking their referendum wounds is a great plebiscite could be held with the federal election to be held not plus. This atypical situation gives the best chance ever of later than 2004. resolving the issue free of partisan political impulses. We F i n a l l y, all Australian electors would vote in the one should not squander it through inertia. referendum on the one question of whether the whole Then it is said that instead of the first step of the federation – all its units – separate from the Monarchy. That recommended process being inquiries and reports by method would enable the change to be made with political and parliamentary committees, the process should go first to a constitutional legitimacy and without strain on the federation. constitutional convention which is all or mainly elected. The No State would separate from the Monarchy precedent of the 1897-8 Constitutional Convention is relied on. and substitute a self-sufficient model for it, That seems to overlook the realities. Although politicians were ‘...there would unless the majority of the State’s voters had about as unpopular then as they are today, voters knew who voted for that. While a Territory could change, best understands how the constitutional system actually works, be a plebiscite in without a majority of its voters voting for that in and all but one member of the convention were the referendum, it would change to the model parliamentarians. The convention was, in effect, a large which the people preferred by its voters in the plebiscite. All committee of parliamentarians. powers of constitutional change would be relied The elections for that convention were held about thirteen would express on, particularly the new powers created by the years before the modern party system asserted itself in Australia Acts in 1986. If supported by the Australia. To d a y, if members of parliament stood for election to their preference overall majority of voters and a majority in every a constitutional convention on the head of state issue, the State, and if every State parliament requested it parties would seek political product differentiation by between the under the Australia Acts, the whole federation sponsoring different models and processes. Political would separate from the Monarchy at the same partisanship would mar the second attempt to resolve the issue. models...’ time, with each unit converting to the model it As the election for the 1998 Constitutional Convention showed, chose in the plebiscite. Otherwise there would if parliamentarians were barred from standing, electors would be no change. Either way the issue would be resolved, at least tend to elect people they had heard of. Usually this would elect for this stage of history. The referendum could be held in about celebrities who have little understanding of the working of the 2005. constitutional system rather than those who had that The potential of Australia Act powers for resolving the understanding but lacked the public recognition of celebrities. issue for the whole federation was perceived at an early stage It is also said that instead of the process starting with by South Australian Solicitor-General, Brad Selway Q.C.. That parliamentary committees or an elected convention, the first appears from the South Australian Constitutional Advisory step should be a plebiscite on whether we desire an Australian Council report, South Australia and Proposals for an Australian head of state. Republic, (Peter Howell, Chairman), Adelaide, 1996. My book, That has two obvious weaknesses. First, however ready D e m o c r a c y, pp.255-63, outlines constitutional mechanisms some 90 per cent of the people are to reveal to an opinion poll relying on those new powers. their desire for an Australian head of state, many of them Every successful referendum after 1910 has been carried would be reluctant to express themselves in that way in a with the support of an overall majority of voters and a majority public plebiscite. Constitutional caution would predispose in every State. The proposed process does not require a level of against giving what many would regard as a blank cheque. support for constitutional change that is significantly higher They would regard a yes vote as politically committing than that usually attained. If a majority of a State’s voters vote Australia to dispense with the Monarchy and would desire that for the change, in political reality, the State parliament would no such commitment be given until they were satisfied that the have no option but to make the necessary request. substituted system would be safe for the democracy and federation of future generations. Are there valid objections to the proposed process? Second, even if the result of such a plebiscite showed a It is said that December 2001 is far too early to start majority desire to separate from the Monarchy, we would have making decisions on recommended process and much more

55 O P I N I O N placed ourselves in the position where our declaration of no provided a significant end piece for the year of celebrating confidence in a central feature of our constitution would be federation. Corowa will again have served its nation well. likely to resonate for years. It would continue to restate our S o u r c e s position until we did the hard stuff necessary to resolve the The information relied on in this article is to be found in issue through a referendum vote with the essential qualities my papers on the www.corowaconference.com.au or mentioned earlier. We would be most unwise to place ourselves w w w.chilli.net.au/~mcgarvie web sites or in my book, in that constitutional no-man’s land for many vital years. Democracy: choosing Australia’s re p u b l i c , Melbourne University No doubt, in the pre-conference debate upon the Press, 1999. That book is also entirely on the conference web site and at the conference itself the cases for w w w.mup.unimelb.edu/democracy/index.html web site. and against the recommended process starting with parliamentary committees, an elected convention or a Note: During the original publication of this article, it was plebiscite on whether we desire an Australian head of state will reported that Opposition Leader Kim Beazley proposed a be put strongly. Other processes with other initial steps are referendum in 2005 if elected: The Age, 21 July 2001, p. 3. likely to join the contest. The conference decision on that contest will be very important. An innovative feature of the conference, likely to set the What effect could the conference have? pattern for consideration of constitutional change in the As with the first Corowa Conference, the effect of the electronic age, is that the debate on the process the conference recommendations of this year’s Corowa Conference will depend should recommend is well under way. on the persuasive authority they carry with people, parliaments It is open to every Australian, whether attending the and governments. The conference has the potential to initiate conference or not. More than six months before the Conference, an orderly exercise of the people power which underlies our the Conference website (www.corowaconference.com.au) was d e m o c r a c y. It could bring the weight of public opinion upon opened six months before the conference. parliaments and governments to take the action necessary for It displays processes proposed for consideration by the early resolution of the head of state issue, despite the hesitancy conference and papers and comments on processes. of political parties to do so. If it does, it will not only have

Real Law & IT Integration El e c t r onic Courtr oom Tra i n i n g

The QUT Moot Court is the most advanced electronic courtroom in the southern hemisphere and one of only three such training facilities in the world. As a member of the legal profession you now have the opportunity to enhance your skills and gain a good understanding of electronic courtroom procedure. Training sessions by an Australia and QUTteam are now available. Participants would learn: ■ How to use technology during trial ■ Court requirements for using electronic databases ■ Practice notes of the relevant courts ■ Best practice in years leading to this point and now ■ Issues to be aware of in using courtroom technology The facility may also be hired for in-house training purposes. The courtroom integrates the latest software, hardware and court design for the purposes of best practice training. Rather than learn on-the-job, legal professionals may enter new electronic courtrooms proficient in these new practices. The QUT Moot Court is located within the Clayton Utz Law Library, Law Building, C Block QUT Gardens Point campus, in Brisbane’s CBD. Inspections by appointment only. More Information Contact Christine Williams on (07) 3864 2216, email: [email protected] or http://www.law.qut.edu.au/elawmoot/

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56 O P I N I O N

would be very few of us that could see it through to the end. Greed gravitates Structured settlements now towards money. In 1997, The Hon. Bryan Vau g h a n MLC, Chairman of the Law and Justice available for injured plaintiffs Committee said, By Judie Stephens, Sylvania, NSW Throughout the course of the co m m i t t e e ’ s inquiry, I have become My life changed dramatically on Structured Settlement Group. The first increasingly convinced that the lives of Saturday 27 November 1993. My chairman was Dr Richard Tjiong of those who are most seriously injured in da u g h t e r , Amanda, and son-in-law, United Medical Protection. This motor vehicle accidents… can be Ja y , tragically died in a motor vehicle happened and we took the law reform significantly assisted by the increasing accident leaving behind three tiny journey together. use of structured settlements. children - Matthew (five years), David ‘What is a structured settlement?’ I am convinced that the time has come (three years) and Jackson (three A structured settlement is only for Australia to follow the lead of other months). Jackson was catastrophically available by choice of the plaintiff. It common law countries – United injured and lives with me. Until then, is an indexed income stream for life in Kingdom, Canada and United States my life was fairly ordinary, I was the form of an annuity that will pay for and introduced structured settlements relatively happy and never recognised care, medical and rehabilitation for the very seriously injured accident that I would need to stretch myself expenses. There is no income tax vi c t i m s . beyond boundaries I never knew payable on the interest of the annuity. existed. This may be in conjunction with a It has been my passion that A few years after the lump sum and is available only at time structured settlements should be accident, I started of settlement. Structured settlements available and now they are. It is very ‘If most of us were looking beyond the day- have been embraced in UK, Canada important to share this good news with to-day care and and USA. people who make decisions, including to receive all our wondering how people It was time to talk with our Federal members at the Bar. like Jackson, who would Government. We went to Canberra and This year in May, I spoke in disposable receive compensation, lobbied for two and half years. Many London with Lord Phillips, Master of could manage their visits were made to my friend, The the Rolls. He was very interested in income at one affairs for the rest of Hon. MP, Assistant what is happening in Australia. His their life. I am fifty- Treasurer Senator Rod Kemp and comment to me, ‘we feel here in point of time, seven and Jackson is informal discussions were held with Britain that we would like to ask each eight. I recognise, as do Treasurer Peter Costello and the Prime plaintiff why they choose not to have a there would be many people who Mi n i s t e r ’ s Department. We also met structured settlement’. This month in manage the affairs of with Treasury and Health. It was a long the UK, there is a working party to very few of us those who are differently haul. It was bipartisan and made social look at these and other issues abled, what happens sense. Our current medical crisis pertaining to structured settlements. that could see it when I am gone. I looked assisted our lobby. Readers may like to look at our at the alternatives that Wed n e s d a y , 26 September 2000: a evolving www.d a r e t o d o . a s n . a u through to the are available, both in great victory. The Assistant Tre a s u r e r community website. Here we share our New South Wales and said in his press release: story of Jackson’s rehabilitation and end. Greed other States, and wasn’t legal journey. We hope this will assist impressed. I was in The Assistant Tre a s u r e r , Senator Rod others. The legal feature promotes our gravitates aware of Jon Blake and Kemp today announced that the law reform advocacy for structured Government will introduce legislative se t t l e m e n t s . towards money.’ his Mum’s terrible plight with the Protective amendments designed to encourage From a plaintiff’s perspective, Office. The papers the use of structured settlements for structured settlements makes great abound with sad stories personal injury compensation. sense. The defendant insurer knows of mismanaged, lost or stolen Now plaintiffs have the opportunity that the money is going in the right compensation. to choose a structured settlement. direction. The judge has the terrible Giving this much consideration, I People like Jackson, those who are task removed of putting a ‘use-by’ date discovered structured settlements were catastrophically injured and those who on the plaintiff’s life. available in the UK, Canada and USA. may need to be protected from people So now to consider: do you know About three years ago, I was put in who don’t have the plaintiff’s interest someone who would benefit from a touch with Jane Ferguson who at that at heart. Let us stop and think. If most structured settlement? I do? time was putting together national of us were to receive all our disposable associations from legal, medical and income at one point of time, there insurance backgrounds to form the

57 B A R H I S T O RY

the correct Latin, including from ( D ) Servants of all, yet of none. Professor A J Dunston, Dean of the ( E ) Servants of none, yet of all. ‘Servants of all, Faculty of Arts at the University of ( F ) Servants only of the law. S y d n e y. A correct Latin equivalent of The poll result was tied between the phrase, ‘Servants of all and of (A) and (D) and at a Bar Council yet of none’ none’ caused some difficulties, meeting of 13 August 1959, (D) was because of the double meaning an favoured. By Carol Webster English speaker readily recognises The correspondence continued, for ‘servant’, which would not have We have all seen the motto and finally one finds in the Bar been at all apparent to an ancient of the Association, ‘Servants of Association file a clipping from the Roman from the noun s e r v i. C u i u s q u e all, yet of none’, but who knows Sunday Mirror of 26 June 1960. The serui et nullius conveys the modern today how or why it was headline is ‘Servants of all - yet of meaning but is not good Latin for the adopted? The history can be none’ recording that three weeks ago meaning. Professor Dunston traced in the files of the Bar the Association had received from suggested Cuiusque ministri, serui A s s o c i a t i o n . London a Grant of Arms with the n u l l i u s, or, using the Latin verb In 1957 Sir Garfield Barwick motto, ‘Servants of all yet of none’. s e r u i o, either non serui seruimus or suggested that the Association obtain The meaning of the motto was salua libertate seruimus. a formal grant of arms. It was explained, ‘that barristers will take F i n a l l y, the idea of a motto in proposed that a panel bearing the any briefs from anyone without Latin was abandoned and there was arms of the Bar Association be prejudice, but will take orders on a poll on the question of a motto in installed at the southern end of the how to conduct cases from no one’. English, which considered the entrance to Wentworth The story of the motto and the following possibilities: Chambers, near the grant of arms is told in Dr John ( A ) Servants of all and of none. stones bearing the Arms B e n n e t t ’s History of the New South Lord Eldon ( B ) In the service of all, but of the Inns of Court. Wales Bar (The Law Book Company, Those stones were servants of none. had said of S y d n e y, 1969) at pages 183-184. handed over on behalf of ( C ) Serving all, servants of none. the four Inns of Court by the barrister, The Right Hon. The ‘He lends his Lord Morton of Henryton when the exertions to all, building was officially opened on 20 August The history of trial by jury himself to none’. 1957 by The Hon. J J Cahill, then premier and of New South Wales. A subcommittee of the Bar in New South Wales Council was formed to consider the By Wendy Robinson Q.C. & Carol Webster question of a coat of arms and also whether any motto should be At the request of the History Committee, Ian Barker Q.C. has agreed to included, and if so, what that should deliver a lecture late next year, on the topic ‘The History of Trial by Jury in New be. There was correspondence back and forth with Sir John Heaton- South Wales’. Wendy Robinson Q.C. is the Project Secretary, assisted by Carol Armstrong, the Clarenceux King of We b s t e r. Arms of the College of Arms for The History Committee encourages all barristers interested in the topic who some time afterwards, with sketches have personal recollections or other specialised knowledge which may be going backwards and forwards. It appropriate for incorporation into the lecture, to make that information known as probably will not surprise that it took soon as possible. Equally, the Committee is keen to identify any barristers who some time before final decisions would like to assist with the research and statistical exercises to be undertaken in were reached. preparation for the lecture. The idea ‘Servants of all and of Persons interested in providing information or otherwise assisting should none’ was suggested for a motto, but contact either Wendy Robinson Q.C. ph: (02) 9285 8836 or Carol We b s t e r, the next question was whether it Assistant Secretary of the History Committee ph: (02) 9224 1550. ought rather be in Latin. Lord Eldon For further information generally, contact the Secretary of the History had said of the barrister, in Ex parte Committee, Chris Wi n s l o w, the Public Affairs Officer of the Association on ph: L l o y d, Montague Reports 69 at 72, (02) 9229 1732, or Geoff Lindsay S.C., Chairman of the History Committee ph: ‘He lends his exertions to all, (02) 9232 6003 or Carol We b s t e r. himself to none’. Scholarly advice was sought as to

58 B U L L F RY

usually to be found refurbishing her Bullfry and the Sapphic Oration tan at a Double Bay solarium. And at the end, after all the By Lee Aitken tumult and the fighting, the two familiar and lacrimose questions - Bullfry Q.C., last heard in Bar News (Spring 2000), ponders the even for Blenkinsop - as those who question of women at the bar. were left scanned the ‘Vale’ notice - ‘when’s the funeral?’ and ‘who’s getting his room?’ ‘Monstrous regiments of women’ hypocrisy, was usually ‘two or three - Blenkinsop was well into his intoned Bullfry softly to himself into but we intend to make a lot more at fifties (the saurian head, the distal his large whisky and water. He undid some time in the future’). The idea tremble of the fingers, the lived-in his Bar jacket and re-read with that young mothers at the Bar should look); he had all that money could growing concern the ‘Op-Ed’ page of be able to arrange court appearances buy. What then drove him forward? the tabloid. There, as reported, one to suit their child-care arrangements Only his ego (which was large) and of the most distinguished jurists in would never find favour with either the happy contentment his ego the country, giving the annual clients or the judiciary. enjoyed which comes from a throng Sapphic Oration, had lamented the Furthermore, success only came of people clamouring for his absence of women in the highest at the end of a long, long road. ‘Who expensive services on a daily basis. echelons of the Bar. ‘Why is it so?’, you are is what you are in’. If you Now what woman, Bullfry the jurist had wondered. wished to be retained in the largest wondered rhetorically, would aspire To Bullfry’s enfeebled mind, the cases with the most complex issues a to such an existence at the age of reasons were self severe psychical price had to be fifty seven? Who would forego the evident. First, the paid. Like acquiring a knowledge of pleasures of living, for the uncertain Now what biological constraints of women themselves (something in delights of sitting, wet-towel on head, maternity necessarily which Bullfry was still manifestly at eleven o’clock in the evening at woman, Bullfry meant that an aspiring deficient), ‘real success’ at the Bar the ‘Sheraton-on-the-Canyon’ while female junior may be was likely to come at a time when it urgent instructions were received by wondered perforce out of active was too late to be of any use to you. facsimile from Pretoria about the practice for an extended Bullfry thought fondly of next day’s cross-examination of the rhetorically, period. And practice at Blenkinsop, the leading advocate of creosote expert? Very, very few. the Bar is his generation. Up and down the As well, Blenkinsop’s success would aspire to pre-eminently personal. country Blenkinsop roamed, leaving concealed a Darwinian process of Even in times of war, in his wake distraught tribunals and selection. The dead were many. The such an the notion that a brief large empty ‘slabs’ of Victoria Bitter. Sapphic orator had failed to observe might be held on behalf Ready at a moment’s notice to peruse that out of the vast number of existence at the of an advocate on active overnight the fifteen volumes aspirants there were very few men service had worked with delivered by courier before boarding who either coveted, or could achieve, age of fifty only mild success. How the flight to Melbourne; only two a Blenkinsopian success. In each much less likely was it minutes (in terms of preparation) in generation, a select few would by a seven? that a young female advance of any court; able to ‘wing it’ constant process of winnowing barrister would be able with the fatal fluency and sure grasp achieve forensic glory so that they to presume upon the of principle which made him an were demanded in every large matter largesse of her brethren and the exemplum in younger eyes. in their particular area of expertise - courts - still less that of her sisters. But ultimately - for what? No appellate work, crime, massive (An earlier suggestion that a doubt to be recognised as the liquidations and the like. By the commission of some sort might be consummate forensic performer of wayside, forlorn and forgotten, lay paid for a cross-referral by a nursing his age by his peers was a worthy the overwhelming number of mother had not found favour). No one reward. But only for a moment; and aspirants who never enjoyed any could be a part-time litigator, either only with the aim of producing an eclat at all. (Speaking entirely for at the Bar or in the largest law firms. artefact of some sort, likely quickly himself, Bullfry had at an early stage (Indeed, Bullfry when giving the to be diluted by the short passing of realised that he wanted that mental occasional guest lecture at the Law time. ‘Who wants to know that a man and emotional capacity to have any School always stressed to the female for twenty nine days investigated the form of ‘successful’ practice. His students in his audience the building of a lunatic asylum when a ideal week involved modest case importance of asking at interview contractor wanted ten thousand preparation on the Monday, a how many female litigation partners pounds more than a county council pleasant two day excursion before the firm had. The answer, after much was willing to pay?’ No-one in the the duty judge, and the matter wringing of hands, references to whole wide world; certainly not the settling judiciously on Thursday ‘glass ceilings’, and ill-concealed second Mrs Blenkinsop who was morning - then followed an extended

59 B U L L F RY

Friday luncheon with boon female junior under the Bar’s business for the day has ended. He companions). new-fangled ‘Help a youngster’ thought momentarily of Blenkinsop, Moreover, any female barrister campaign but the second Mrs Bullfry even then winging his way north with who began to achieve notoriety in a had scotched that possibility at the a coterie of young thrusters from the select jurisdiction would, inevitably, breakfast table when it was mega firm, two benighted juniors, be offered a more or less senior timorously floated.) and a caravanserai containing more judicial post to attempt to attain the It would surely be far better, tender bundles than any man could gender equality of appointments mused Bullfry, if all these simple ever wish, or hope, to deploy. considered so important in the truths were recognised and the Bullfry’s battered head fell post-modern world. Indeed, it could constant implicit criticism of the Bar forward; the tattered copy of Balzac be safely predicted that within a year and male barristers as some slipped from his grasp - a suspirious or two of achieving a silk gown, a backwater of unreconstructed snore escaped. female barrister would be plucked chauvinism was silenced forever. from obscurity to take her place on Bullfry leant back on the chaise some court; indeed, for the longue and picked up one of the high-flying female silk it was almost French classics; his secretary, a question of ‘name your post’ when carefully selected by the second Mrs the Attorney called. It followed that Bullfry for her singular looks, there was no prospect of any senior knocked and entered. ‘Just time for woman barrister achieving a another double before we finish up, liver-function test result like that of Alice - and pour one for me as well’. Blenkinsop. (Bullfry had hoped to A gentle calm descended on accept a post as ‘mentor’ to a young Bullfry, the ataraxia of one whose

...his secretary carefully selected by the second Mrs. Bullfry for her singular looks, knocked and entered. (Cartoon by Poulos Q.C.)

60 A P P O I N T M E N T S

2001 Senior Counsel

Senior Bar Counsel: Back row, left to right: Colin Charteris, John Nicholas, Keith Rewell, John Griffiths, Neil Williams, Robert Sutherland. Middle row, left to right: John Ayling, Sharron Norton, RobertsonWright, Rowan Darke, Robert Web e r , Jeremy Gormly, Martin (Anthony) Blackmore. Front row, left to right: Paul Conlon, Howard Insall, Christopher Craigie, Bruce Hodgkinson, Robert Lethbridge, Vance Hughston. Timothy Robertson was not present.

August 2001 Readers Course

August 2001 Readers course: Back row, left to right: Graeme Blank, Ross Carruthers, James Whyte, Christian Dimitriadis, James Hmelnitsky, Philippe Gray-Grzeszkiewicz, Dominic Williams, Christopher Wood, Mark Dennis, Joanne Gallaher. Middle row, left to right: Radhakrishnan Nair, Christina King, Matthew Darke, Adrian Canceri, Cameron Thompson, John Azzi, Mary Falloon, Ivan Griscti, Roger Quinn, John Gibson, Thomas Hickie, Emma Wri g h t . Front row, left to right: Harriet Grahame, John de Greenlaw, Terese Messner, Margaret Allars, Therese Catanzariti, Anita Betts, Stephanie Fendekian, Felicity Rogers, Constantine Miralis, Heather Irish, Meredith Phelps.

61 For the first time, the members of There are approximately 20,000 barristers the independent referral bars will be in private practice at independent referral Bars invited to gather at a conference around the world. To ensure that a place at the designed to examine and discuss cur- Conference will be available, prospective rent issues affecting barristers. attendees will be invited to pay a deposit of

Matters such as competition policy, direct approximately £40. A conference web-site is access, regulation of the profession, independ- being established and details will be available ence of the profession and specialisation will on it within the next few months. A link will be be on the agenda. Each of the participating available on the web site of your own Bar to bars will provide speakers and the conference take you to the Conference information. will afford registrants a unique opportunity to In the meantime, preliminary infor- consider and assess the role of the Bar and the mation can be obtained from the challenges it and its members face. Conference Secretariat.

The host Bar is The Faculty of Advocates. It is being administered by the

In existence for over half a millennium, the Australian Bar Association.

Faculty is the body which represents independ- Telephone: 61 7 3236.2477 ent lawyers who have been admitted to practise Facsimile: 61 7 3236.1180 as Advocates before the Courts of Scotland. Email: mail@austbar. a s n . a u

62 VA L E

theatre and music. Ro b e r t Francis Greenwood Q.C. The Hon. Justice J R F Lehane He was always courteous, quiet, calm 1941 - 2001 1941 - 2001 and precise, with a mischievous sense of By The Hon. Justice R P Meagher Bob Greenwood Q.C. is known to a hu m o u r . He was very well read. He was wider world as the former head of the Justice John Robert Felix Lehane, who generous. And he was modest, although he Australian Special Investigations Unit set up has died aged 59, will be an enormous loss had nothing to be modest about. With good to investigate allegations of war crimes to the legal profession. He was an immense reason, he was enormously popular. against persons in Australia. success as a judge, both with his colleagues His death, after a year’s battle with He had, prior to taking up that and with the Bar, and should have been malignant cerebral tumours, will make us all challenging role, been a member of the appointed to the High Court of Australia. feel deprived. National Crime Authority and Deputy Lehane was a lecturer in equity at the Director of Public Prosecutions for the law school of the and Commonwealth of Australia in the published many articles and studies on Paul Donohoe Q.C. Australian Capital Ter r i t o r y . various aspects of equity and commercial 1944 - 2001 Bob was a skilled criminal trial defence la w , particularly in the area of banking, in By Alan Sullivan Q.C. advocate who had achieved notable which he had formidable expertise. He was, Paul Donohoe Q.C. passed away on successes at trial and on appeal, including in with R P Meagher and W M C Gummow, an Friday 2 November 2001 completely the High Court. In his earlier career he had author of Equity: Doctrines and Remedies, un e x p e c t e d l y . He was 57 years of age and at practiced particularly in the north of the leading Australian textbook in that field. the height of his powers. His death shocked Queensland. He had taken up practise in Anyone who reads the chapters in that book and shook his family, friends and colleagues New South Wales following his resignation dealing with equitable assignments, or es p e c i a l l y , of course, his beloved wife Louise from the Special Investigation Unit. receivers, will at once appreciate his unique and his adored children, Phoebe, Justine, He died on Tuesday 23 October 2001, combination of profound learning, precise Je r e m y , Simon and Andrew. There could be following a farewell function organised by thinking and verbal elegance. no more eloquent testimony to the great his family and friends, which he was able to Lehane was born in Sydney to Felix affection, respect and regard with which he attend at Centennial Park on Sunday 21 Lehane and his wife Jessie (nee Vic k e r s ) , was held by his family, friends and October 2001, his 60th birthday. whose sister is Lady Win d e y e r , Sir Vic t o r ’ s colleagues than the huge turn out for his He leaves his family, Janet, Anne, Bill, wi d o w . funeral on an appropriately bleak John, Sally, Michael and Harry with the He was educated at Sydney Grammar Wed n e s d a y , 7 November 2001. fondest of memories of him. School and at the University of Sydney, from Almost 1,000 people packed St Mary's At his memorial service at St. Andrew's which he graduated BA with first class Cathedral for the beautiful and moving Cathedral on Monday 29 October 2001, his honours in Latin (1964), LLB with first class service. One senior barrister observed that children spoke of their affection for a father honours and the University Medal (1969) there couldn't be much business going on in for whom they had the highest regard. and LLM with first class honours (1980). As the Supreme Court or the Federal Court that Justice of the High Court an undergraduate, he was a member of St morning because, it seemed, most of the described him as a man dedicated to the law, Pa u l ’ s College at the university. judges of those courts were in attendance as unswerving in his belief that all are Lehane served articles of clerkship from were judges from the High Court of Australia answerable to the law and entitled to the 1966 with the late A P Henchman, then a and many other courts as well as a countless law's protection. He was a man, she said, partner of Allen Allen & Hemsley, solicitors, number of Paul's colleagues and friends who lived his beliefs. She described him as of Sydney and was admitted as a solicitor of from the Bar and from the solicitors' branch single-minded, fearless and sometimes the Supreme Court of NSW in 1969. of our profession. slightly Fenian, generous, irreverent, He worked with the firm as an employed Paul was the youngest of the five ir r e p r e s s i b l e . solicitor until 1971, in which year he children of Frank and Eileen Donohoe who Mark Aarons, author, described the became a member of the firm. lived in Martin Road, Centennial Park. diligence and skill with which Bob had He remained a partner until his Frank Donohoe was a well known and highly performed his function as head of the appointment to the Bench. From 1990 to regarded Sydney solicitor. Paul attended Special Investigation Unit obtaining the co- 1993 he was the firm’s managing partner and Waverley College where he was a competent operation of the Soviet authorities in from 1994 until October 1995 its chairman and diligent student. Although he played a providing assistance including the provision of partners. On 3 October 1995 he was bit of tennis, Paul's sporting passion was of witnesses to the Australian prosecutions appointed as a judge of the Federal Court of surfing. He retained a love of the surf for the in consequence of the Unit's investigations. Australia. whole of his life. One passion which Paul Those that knew him admired the man Lehane served on the council of St didn't retain for the whole of his life was his and respected the lawyer. His friends who Pa u l ’ s College since 1977 and had been its love of budgerigars. It may surprise some to were many will miss him very deeply. chairman since 1992. He was also a member know that in his adolescent years Paul was a of the council of Pymble Ladies College breeder of budgerigars. The problem was since 1990. that the family also had cats. They too liked In 1971 Lehane married Dr Rosalind the budgerigars but for reasons different to Day and they had two daughters and two those of Paul. An abiding memory Paul's sons. He was a devout Anglican. His eldest brother, Frank, has of Paul as an recreational interests included tennis, adolescent is of him sitting at the back of the

63 VA L E house in a chair with a bottle of beer nearby ve r s a t i l i t y . He could do any sort of Paul also initiated what has become an and his air rifle beside him ready to take a commercial or equity case but, unlike many Eleventh Floor institution, namely the pot shot at any cat which dared to approach others, he was equally adept and comfortable Friday lunch in the common room which the aviary. running a personal injuries case or a medical members and ex-members of the Floor are After obtaining his Leaving Certificate, negligence claim. He fervently believed that encouraged to attend whenever possible. He Paul attended the University of Sydney from all judicial officers should be treated with had two motives for this initiative, each which he graduated with degrees in arts and respect at all times and that the role of the laudable. First, he wanted to ensure that in law. Whilst at Sydney University he advocate was to persuade rather than to close personal contact was maintained represented the Law School in the lecture. He had consistent and regular between the members and ex-members of intervarsity debating competition and also success whether appearing in an arbitration the floor, especially after people had left the commenced Articles at his father's firm, F P or in a local court or in the highest court in floor to go to the Bench. He believed that Donohoe & Son being articled, in fact, to his the land. He was a true all-rounder. this contact was extremely important for all brother Frank. With a neat symmetry which Paul's qualities as a barrister soon came of us but most particularly for the younger would have pleased Paul the teacher-s t u d e n t to the attention of other floors. members of the floor. His second aim was to relationship between he and Frank was In December 1979 he made the very assist in maintaining the economic viability reversed in 1983 when Frank came to the difficult decision to leave his good friends on of the dining room. Paul believed the Ba r . By then Paul was an established and the Ground Floor and to join the Eleventh common room and the dining room had very busy junior and he did all he could to assist Floor Wentworth largely because, I suspect, important roles to play in maintaining and his brother establish himself at the Bar. two of his legal idols, McAlary Q.C. and Staff enhancing the fraternal and collegiate spirit Paul was admitted as a solicitor in Q.C., as well as his former pupil master, of the Bar which distinguishes our profession March 1968 and, almost immediately, Conti Q.C. were members of the Eleventh from many others. He loved the Bar and its became a partner in the family firm. Frank Fl o o r . The Ground Floor's loss was the institutions and recognised the critical part snr died in 1973 and Frank jnr left the firm Eleventh Floor's enormous gain. that mutual trust plays in the practice of our in 1974. Thereafter, Paul in conjunction with Paul joined the floor which has always Alan MacDonald carried on the family firm prided itself on its camaraderie and which until it merged with Law & Milne. was the home of many highly skilled During his time as a solicitor Paul practitioners. Yet it would be fair to say that developed a reputation as a connoisseur of fe w , if any, members of the Eleventh Floor fine wines and cigars. He even toyed with have enriched it and had as great an impact the idea of setting up a business to sell upon it as Paul did in the 22 years he was a Cuban cigars in Australia and applied for an me m b e r . Paul's wonderful array of personal import licence to do so. Not surprisingly, in skills - his charm, urbanity, sophistication, the political climate which prevailed in warmth, honesty, rock-hard integrity and his Australia in the late 1960's and early 1970's, sense of fun and humour - quickly resulted he did not obtain that licence. Maybe it was in him becoming one of the most popular that which caused him to flirt with politics. and respected members of the floor. Paul became heavily involved with the His zest for life, genuine interest in Liberal Party of Australia and even stood for people and his disdain for pretentiousness or pre-selection to the Senate. Fortunately, he pomposity infected us all. He had a love of was unsuccessful. French champagne which he would very Ho w e v e r , the vast majority of Paul's time generously share with his Floor colleagues. at this stage was divided between the raising But Paul introduced an inviolable rule for of his young family with his first wife, such occasions. You were free to talk about Dianne and the maintenance of his practice. your work and how well you performed it on He was an excellent solicitor held in very a particular day - but only if it was funny. If high regard by all who dealt with him, it wasn't (and Paul was the ultimate and very especially the barristers he briefed. He strict arbiter of that) you had to buy the next became very friendly with a number of those bottle of champagne. Needless to say, the barristers and that contact stimulated him to rule had its desired effect. Very few make the major career decision of his life. ventured, on these occasions, to talk about Paul was admitted to the Bar on 11 work or, more particularly, how they had Paul Donohue, with clerk Paul Daley, when the bows for new February 1977. He was fortunate enough to excelled at it. However, having diverted us silk were taken at the High Court in Canberra in 1991. read with Dick Conti then a junior counsel from talking about ourselves and our work, with an enormous commercial practice. He Paul then found he had to introduce another profession. He believed that that mutual found his first home at the Bar in Ground rule. This was the 'no golf rule'. No one was trust was fostered and developed by the Floor Wentworth Chambers. He made many permitted to use any word remotely close personal contact between members of close friends there including Justice Carolyn associated with the game of golf lest the profession and of the judiciary which Simpson. He quickly developed a very busy, Maconachie latch on to it as an opportunity occurred in the common room and dining very diverse practice as a junior. One of to regale us all, in excruciating detail, about room. Paul's many qualities as a barrister was his his latest exploits on the golf course. The lunches were also a weekly

64 VA L E reminder of Paul's sometimes mischievous important case setting out the principles of Sydney and other places to work. As Paul, sense of humour. Each Friday morning he law for the liability of a public authority in by this stage, had developed an Australia- would circulate an invitation to the lunch respect of the negligent supply of wide practice this was not as impractical as comprising the menu for the day and some contaminated water in Pu n t o r i e r o v Wat e r it may sound at first blush. Notwithstanding witty or humorous cartoon or extract from a Administration Ministerial Corporation the fact that both Paul and Louise were both book. We will miss those invitations. (1999) 199 CLR 575. He was one of the city born and bred (or probably because of it) Paul's career at the Bar continued to senior counsel who successfully argued the they loved their time in Berry and never flourish after joining the Eleventh Floor. To landmark decision of the High Court on complained of the inconvenience that the the surprise of none, he took silk in 1990. private international law in Pf e i f fer Pty travel for work purposes involved. Paul's appointment as silk caused him Limited v Rogerson (2000) 74 ALJR 1109. More recently, Paul and Louise decided only one regret. It meant he could no longer Even a cursory examination of the law to move to Canberra where Louise had spent do formally what he had done so reports further reveals the success, diversity time as a child and where Paul had always spectacularly well as a junior, to act as a and width of Paul's practice. He argued had a significant practice. Paul, however, pupil master (to use the politically incorrect personal injuries cases (e.g. Dell v Dalton continued to maintain his chambers on the term) to various readers. I feel confident in (1991) 23 NSWLR 528), he successfully Eleventh Floor in Sydney and continued to saying that there has never been a better persuaded the Full Court of the Supreme do a lot of work in Sydney. pupil master than Paul. He had a genuine Court of South Australia in respect of the In what seemed no time at all, Paul interest in his readers, their well-being and application of the principles of fiduciary became the undisputed leader of the their education as barristers. In the best duty in Gemstone Corporation of Australia Canberra Bar. His experience, ability, traditions of the Bar, he was exceedingly Limited v Grasso (1994) 13 ACSR 695. He judgment, administrative and generous with his time and with his appeared in the Federal Court in communication skills were quickly knowledge with his readers and, indeed, ba n k r u p t c y , administrative law and trade appreciated and recognised by the Canberra with any other member of the Bar who practices cases (see, e.g. Seovic Civil Ba r . He was approached to stand as sought his assistance. He gave his readers Engineering Pty Limited v Groe n e v e l d (1 9 9 9 ) president of the ACT Bar Association and, his unstinting support, advice and 161 ALR 543; Lo r d v Commissioner of The succumbing to his sense of duty, he agreed. encouragement. He helped get them briefs. Australian Federal Police (1997) 154 ALR He was elected unopposed as President of He was a natural teacher. He ingrained in all 631 and Wilkins v Dovuro Pty Limited (1 9 9 9 ) the ACT Bar Association. his readers the paramount importance of 169 ALR 276). In New South Wales, the Paul's willingness to put back something acting at all times, just as he did, with the reports evidence him contributing to the into the profession he loved was what we had highest ethical standards and the utmost development of the law relating to gifts, come to expect from him. Not only had he in t e g r i t y . Not surprisingly, all of his readers conveyancing, contract/estoppel, building been a mainstay, for many years, of the NSW have done well at the Bar, to Paul's great and construction law and in many other Bar Reading Course but also Paul served for satisfaction. In my last conversation with areas. He also played an important role in a record period of eighteen years on the him, at the swearing in of Justice Joe the notorious recent defamation case Board of Counsels’ Chambers Limited Campbell, Paul proudly recounted to me that involving Mr John Marsden and Channel including two years as its chairman. He two of his readers, Rowan Darke and Neil Seven. His involvement in that case played a very large part in the revival of that Williams had taken silk this year. He was stemmed from his innate sense of justice, his company's fortunes. genuinely pleased to have been able to help commitment to the legal system and his Whichever way you look at it, Paul had them a little on their way. desire to help an old friend out in hard an outstanding and wonderful career as a As a silk Paul had great success and times. la w y e r . I can't help feeling, however, that his enjoyed a very strong following. He appeared It is fair to say that there are few, if any, career was still incomplete or unfinished in many important cases and quickly practitioners at the modern Australian Bar when he was so tragically and peremptorily became widely regarded as one of who were as well equipped as Paul to appear taken from us. I think that he was poised to Australia's pre-eminent senior counsel in as an advocate at any level in the legal achieve even greater professional rewards long, complex and complicated construction system in virtually any type of case. His and recognition. Sadly, we will never know. and building litigation. But he continued to versatility perhaps stemmed from his strong Appropriately for a man with such an practise with skill, expertise and great conviction that barristers should have only enthusiasm for life and a love of people, Paul success in an almost bewildering array of one specialty, namely advocacy. In Paul's Donohoe had a rich, highly satisfying and different types of case. He appeared with vi e w , intelligence, judgment, courage, greatly enjoyed life both personally and distinction in the High Court of Australia in knowledge of the law and, perhaps most of pr o f e s s i o n a l l y . Chappel v Hart (1998) 195 CLR 232, a all, the ability and commitment to He loved the law and his colleagues in it medical negligence/causation case. He was meticulously prepare a case in all its aspects but his first love and his main priority was successful in persuading the High Court to were the tools of trade which every barrister always his family, especially Louise and his accept his submissions on industrial law should possess and which should equip a children. He regarded his children as his issues in Re Amalgamated Metalworkers barrister to practise in virtually any field of greatest achievement. Union of Australia; ex parte The Shell law before any court or tribunal. Their grief is shared by us all. He was a Company of Australia Limited (1992) 174 In Paul's own case, at least, this was a loving husband, a devoted father and an CLR 345. A very special bonus for Paul, in correct assessment. outstanding barrister. But, most of all, he was this case, was that Louise was his junior. He After Paul and Louise got married, they a wonderful human being. also appeared before the High Court in an decided to live in Berry and 'commute' to

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legal community. Many academic lawyers they may contain much that may be Principles of Criminal Law still engage in this task. However, over the useful, it will tend to be submerged in by Simon Bronitt and last few decades the legal academy has material that is not. Bernadette McSherry increasingly turned its focus to a different Again, I should make the obvious LBC Information Services, 2001 priority - critique of the law. point that this may be of little concern to As someone who has been a part-time While the academy has always seen the academic. Books are written for lecturer in a university law school for one of its roles as legal criticism, this had different audiences. Some legal texts are some years, while continuing to practice at tended to be simply one of a number of written for practitioners. Others are written the Bar, I have often been struck by the functions. In the process of explicating the for students, to provide the written apparent chasm between the academy and la w , it is necessary to examine the material upon which the task of legal practitioners. At times, it seems that principles and policies upon which it is teaching is to be based. Given that legal academic lawyers and practicing lawyers based. While they might be the subject of teaching is increasingly being dominated live in two different worlds, speaking criticism, the focus of criticism tended to by political and social criticism, it is different languages and with completely be narrow. Logical fallacies, poor hardly surprising that legal texts are being different views of the law. reasoning, inconsistencies in approach, written based upon that model. Practitioners, at least those in the conflicting principles, were the primary Understanding that makes it easier to see private profession, tend to focus on the tools. That has all changed by the why such texts may appear, at least on first minutiae of particular cases with which injection of what might be called, loosely, inspection, to offer little to the practitioner. sociology and politics. they are dealing. They immerse Nevertheless, the legal practitioner themselves in the factual, tactical, The dominant model of academic legal should not be too quick to judge. Even psychological, emotional, evidential, and, study and analysis now involves an attack someone involved in the day to day above all, practical, issues which each on the social and political underpinnings realities of the practice of law should case throws up. of the law. There is little interest in occasionally stand back and look at the Of course, the law is the framework descriptive endeavours, or in the minutiae bigger picture. Long held assumptions within which the practitioner operates and of particular cases. While there may be should be challenged. More pragmatically, sometimes a particular legal rule or some explication of what the law is, this is consideration of legal criticism may inform principle will be of critical importance. In usually only a prelude to a comprehensive more prosaic, more down to earth, order to provide good advice to clients, attack on, and dismantling of, that law. No co n c e r n s . doubt, considerable intellectual and to represent them effectively in any This long discursus is by way of excitement can be derived from the legal environment, the law needs to be introduction to a book on the criminal law trashing of judicial authority figures and known. Occasionally, uncertainty as to the which reflects the changing academic lawmakers, and from the advancing of true legal position will require some paradigm. In the preface, the authors write: consideration of the arguments which deeply felt political and moral views with might be marshalled to achieve a the goal of achieving some model of This book is a result of our commitment to ju s t i c e . showing how the principles of criminal law particular legal outcome. But, for the most reflect the changing social, political and part, the practice of law is about real I should make it clear that I am not moral concerns about wrongful conduct and people, what they have done in the past particular groups. We set ourselves the condemning such forms of academic daunting task of describing criminal laws and what they might do in the future, en d e a v o u r . It cannot be doubted that the across every Australian jurisdiction and, about real things, on the micro rather than law is politics, and that the content of the wherever possible, challenging these the macro level. accounts from interdisciplinary vantage law derives from complex historical, points. Reflecting our broad variety of For academic lawyers, a large part of political, social and moral forces. Anyone interests, we have drawn upon a range of is entitled to challenge the underpinnings disciplines including criminology, criminal what makes the practice of law fascinating justice studies, feminism, legal history, for practitioners is simply missing. There of the law and to advance a particular human rights, legal theory, medicine, is no direct involvement with people with political perspective or agenda, so long as psychology and sociology, to illuminate the they are honest about what they are doing. substance and operation of the criminal law. real legal problems, needing help in a ... What we do hope to impart is a critical complex world. There is no opportunity to One may question whether law schools orientation to the criminal law, rather than taste the satisfaction which comes from should be dominated by such an agenda, simply a description of the rules, principles but there is noting wrong in it forming part and substantive definitions applicable in applying knowledge of the law to help every jurisdiction. In terms of presentation, clients avoid legal pitfalls, resolve of the academic world. we deliberately set out to differentiate this book from other textbooks by including case disputes and emerge victorious from Ra t h e r , the point I wish to make is li t i g a t i o n . studies, perspective sections and shorter that such academic critical legal analysis aside boxes, tables and diagrams. We hope Ac c o r d i n g l y , the academic lawyer increases the rift between academic that this translates into a user-friendly book that provides starting points for critical must find job satisfaction elsewhere. lawyer and practitioner. Books written in reflection, class discussion and further Tra d i t i o n a l l y , one source was developing accordance with such analysis tend to be research into specific areas. Beyond mastery of a field of law, organising it and structured and written in a way which providing critiques of the law, we are keen to point the way toward reform. making sense of it. Such knowledge could makes them of little use to practicing lawyers. Perhaps that is too strong. They be passed on by lectures to students and, I think the authors have largely tend to speak a language and have a focus by the writing of legal texts, to the wider succeeded in their goals. They have which is alien to the practitioner. While

66 B O O K R E V I E W demonstrated that many criminal justice conduct is ‘permitted, in effect, (p.105). Putting to one side the principles are historically contingent, licensed’ by the law, supported by a assumption that the complainant ‘evolving to accommodate changing social, 1981 English sociological text was indeed a victim of sexual political and moral expectations about the (p . 8 7 3 ) . abuse, the failure to refer to the proper function and limits of the criminal • Some assertions about the legal impact of what is often decades of law’. Fundamental assumptions upon system do not accord with my delay on the possibility of an which much of the criminal law is based observations of the day to day effective defence is unfortunate. are isolated and examined. Recent operations of the courts. They seem • Criticism is advanced of law reform developments in psychiatry and to derive primarily from ideological bodies which fail to consider psychology are highlighted. Useful tables positions. For example, at p.96 the external perspectives on the law, and summaries of the existing law are authors write: without acknowledging that provided. Discussion of important In the lower courts, where most sometimes those bodies operate on judgments is often incisive and thoughtful. suspects are processed, an the basis of terms of reference Areas of the criminal law which have ‘ideology of triviality’ pervades which preclude such analysis. Thus tended not to receive much academic summary proceedings. Rather the Model Criminal Code Officers discussion are comprehensively analysed. than venerate fairness values, Committee should not be criticised For the mort part, criticisms of the law are empirical research has revealed for failing to engage in lengthy reasonably balanced and well-informed. that trial procedures, especially analysis of ‘the relevance of culture Proposals for reform are often sensible and those in lower courts, operate as and setting to drug use and the ca u t i o u s . ritualised degradation effectiveness of alternative That said, and adopting the ‘critical’ ce r e m o n i e s . approaches to drug control based on mode, some negative points can be made: regulation rather than • Some claims about the criminal law Un f o r t u n a t e l y , the ‘empirical research’ criminalisation’ (at 34) in its are supported by questionable is not summarised and the references in discussion of serious drug offences, au t h o r i t y . Thus, the proposition that support are to other texts, including a when the Committee’s task was ‘the right to a fair trial may be 1979 American book. Another example is narrowly circumscribed by its viewed as [a] right to a trial that is the proposition advanced at p.97 that political masters. reasonably fair in the ‘judicial rhetoric venerates fairness and In t e r e s t i n g l y , in the preface to their circumstances’ (p.103) is supported legality in the administration of criminal book the authors acknowledged that by an extract from the judgment of justice while systematically denying them ‘writing about law from an Brennan J in Jago v District Court in the specific application of rules, interdisciplinary perspective is not without (NSW), failing to mention that his discretions and remedies’. Evidence for its own hazards and pitfalls’. Quoting a was a minority position on the High this rather strong claim is not provided, at Canadian law professor writing in 1998, Court. Similarly, English and least at that point in the book. they referred to disparagement from more American sources are often relied • Legal arguments which do not find traditional legal academics and scholars in upon to support doubtful statements favour with the authors are other disciplines who ‘do not always about the Australian criminal sometimes demolished by careful appreciate encroachments by their justice system (see, for example, use of language. Thus, it is observed neighbours’. They expressed ‘optimism p.122). that ‘defence counsel have argued that rape trials should be that the Australian legal community will • Some discussions of the parts of the permanently stayed on the ground be receptive of such endeavours’. criminal law have failed to keep up that ‘rape shield laws’, which aim to with recent developments. For In my experience, the authors have limit humiliating and degrading example, the discussion of the law little to be concerned about in the cross-examination on the relating to the defences of necessity academic legal community. It seems clear co m p l a i n a n t ’ s sexual history, violate and duress is severely compromised that critical, inter-d i s c i p l i n a r y , legal the accused’s right to a fair trial’ by the lack of reference to the analysis is no handicap to career (p.105). A rather more neutral important decision of Rogers (1996) advancement. Quite the reverse. On the formulation would have 86 A Crim R 542. other hand, the private profession will not acknowledged that those defence be so receptive. As for the views of • Doubtful claims are made, only counsel no doubt submitted that the political scientists, psychologists, supported by the writings of other accused was prevented from sociologists and other like experts, I will critical legal scholars. This obtaining important evidence by leave it to them to judge. technique is adopted in relation to, those very laws. An even more for example, the questionable egregious example is the Reviewed by Stephen Odgers S.C. proposition that a jury will be proposition that ‘the fair trial required to apply an ‘underlying principle’ has ‘been invoked to stay male standard’ when considering proceedings where the complaint is the ‘reasonableness’ of actions said substantially delayed because the to have been taken in self-defence complaint relates to sexual abuse (p.307). Another example is the perpetrated on the victim as a child’ assertion that unlawful police

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Co m m e r cial Arbitration Act 1984, the The arbitrators’ companion notion and significance of the seat of the Lumb & Moen’s The by Geoffrey Gibson arbitration (locus arbitri) and appeals from Constitution of the Federation Press, 2001 aw a r d s . This book, as its title suggests, has Part 2 of the text headed ‘The practice Commonwealth of Australia been written principally to provide an of arbitration’ provides a brief overview of (Annotated 6th ed) introduction and guide to law for the main procedural steps of an arbitrators. It is divided into five parts. arbitration, together with a worked By Gabriel A Moens and John Tro n e Butterworths, 2001 Part 1, headed ‘The law relating to example or case study designed to arbitration’ provides a useful conspectus, illustrate in a practical way the time line Fi r s t l y , it must be acknowledged that both for lay arbitrators and also for lawyers of an arbitration from the inception of the this edition marks the death of one of the seeking an introduction to the topics dispute to the completion of the award. original authors of this text, namely, covered, of the various stages and The text, however, provides very little Professor Darrell Lumb. One of the particular principles relating to discussion indeed, even by way of seminal legal writers on Australian arbitration. As the author acknowledges, ov e r v i e w , of principles relating to the constitutional law and indeed whose text matters dealt with in this Part are enforcement of awards. The Constitutions of the Australian States themselves the subject of specialist texts Part 3 of the text is entitled ‘Elements (first published in 1963) has no rival, his which necessarily contain a far fuller of law for arbitrators’. Again, as its title passing will greatly lamented amongst discussion of the principles. As such, the suggests, this aspect of the book is academic and practicing public lawyers book does not claim, and rightly so, to particularly directed to lay arbitrators. It al i k e . provide an authoritative or exhaustive provides a necessarily brief overview of Se c o n d l y , to be frank, it is difficult to discussion of topics such as international the following topics: the Australian legal say anything very original about this arbitration, applicable law, jurisdiction or system, contract, discovery, equity, celebrated annotation. Since its initial stays of court proceedings in favour of estoppel, evidence, interpretation, publication in 1974, this text has arbitration, domestic or international. misleading and deceptive conduct, natural unfalteringly provided practitioners and Although the text does make reference justice, negligence, pleadings, privilege academics alike with the essential to some recent Australian and English and restitution. This, in 60 pages, may commentary and case law required to decisions on topics relating to arbitration, provide useful introduction to lay navigate one’s way through the there are at least three recent important arbitrators. It would be alarming, however, Constitution. There are, of course, intermediate appellate Australian if it was of value to practitioners. In weightier tomes on the market but none decisions, the failure to refer to which is fairness to the author, it is not directed to that have consistently presented somewhat surprising. Francis Tra v e l them. In similar vein to Part 3 is Part 4 of themselves in such a concise and yet Marketing v Vir gin Atlantic Airways (1 9 9 6 ) the book, headed ‘Glossary of legal terms relatively comprehensive fashion. 39 NSWLR 160 deals, inter alia, with for arbitrators’. Again, this is likely to be a It is of course no mere coincidence questions of the scope of arbitration principal value to lay arbitrators rather that (judging by the book’s cover, clauses and whether, for example, a Tra d e than legal practitioners. aphorisms aside) the 6th edition has been Practices Act claim may be referred to Part 5 of the book, headed ‘Sources of published during the centenary of international arbitration. Hi-Fert Shipping law for arbitrators’ contains reprints of the federation. In this regard it was somewhat Pty Limited v Kuikiang Maritime Carriers Co m m e r cial Arbitration Act 1984 (N S W ) , disappointing to see less, rather than Inc (No. 5) (1998) 90 FCR 1 was a the International Arbitration Act 1974 more, material in the ‘Introduction’ on decision of the Full Court of the Federal (C t h ) . subjects such as ‘Relations With the Court dealing also with questions of scope United Kingdom’ and the complete of arbitration clauses, in a manner which Whilst the text of the book runs to 248 excising of all commentary on the went somewhat against the ‘one-stop pages, what appeal it may have to a Australia Acts 1986 (UK and Cth). shopping’ trend referred to on page 25 of practitioner wishing to inform him or the text. It also considered the herself in a general and introductory way Ho w e v e r , the sixth edition is a fully constitutional validity of the In t e r n a t i o n a l of the framework of arbitration lies in the revised edition referencing most of the Arbitration Act 1974 (Cth) and raised first quarter of the text. recent developments in constitutional law doubt, obiter dictum, in arguable tension since 1995. For example, there is now a with the decision of the Court of Appeal in Reviewed by Andrew S. Bell discussion of proportionality in light of Francis Tra v e l , as to the validity of an decision in Leask v Commonwealth (1 9 9 6 ) arbitration clause referring a Tra d e 187 CLR 579. Chapter I has undergone Practices Act claim to an international significant revision, incorporating many of arbitration. Nor did the text refer to Ra g u z the cases concerning representative v Sullivan (2000) 50 NSWLR 236, an democracy and responsible government, Olympics case concerned with the Court including implied freedoms. For example, of Arbitration for Sport, which contains an McGinty v Western Australia (1996) 186 extensive and learned discussion by CLR 140, Kruger v Commonwealth (1 9 9 7 ) Spigelman CJ and Mason P of both the 190 CLR 1 and Lange v Australian

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Br oadcasting Corporation (1997) 189 CLR June 2001) has a section on contributory 520. Equally, there is mention in Chapter Architects, engineers negligence, Astley v Austrust Ltd does not I of the plethora of new decisions and the law (3rd edition) get a mention. And although issues of the concerning the Commonwealth legislative availability of pure economic loss are powers contained in s51 of the By J R Cooke discussed, Pe r r e v Apand Pty Ltd is The Federation Press 2001 Constitution. Cases such as Victoria v missed altogether. While the Tra d e Co m m o n w e a l t h (1996) 187 CLR 416 (on I am not sure what to make of this Practices Act 1974 (Cth) must have a the legislative implementation of treaties) book. In many ways it is good, but significant impact on the liability of and Kartinyeri v Commonwealth (1 9 9 8 ) ultimately it may be too complicated to be architects and engineers, the whole matter 195 CLR 337 (on the races power). us e f u l . is covered in less than three pages. When I commenced to read the book I For the general lawyer I would Chapter III contains a pithy was negative toward it, thinking it would hesitate before recommending Dr Cooke's discussion of the recent rush of decisions be no more than a non-lawyers book, book, but it is not possible to simply concerning the judicial power of the perhaps to be used as a text in some dismiss it, as it does constitute, at least Commonwealth. As one would expect, introductory course to the law for non- for a person interested in construction reference is made to the important lawyers. But the book is much more than la w , an invaluable list of decisions with a decisions of Kable v Director of Public that. In the first place there are the construction-bent. This is especially so in Pr osecutions (NSW) (1996) 189 CLR 51 remarkable qualifications of the author, Dr the second half of the book, much of and Re Wakim; Ex parte McNally (1 9 9 9 ) Cooke, who holds bachelors degrees in which deals with specialist matters 198 CLR 511. architecture and law, a masters degree in relating to particular building contracts - Likewise, Chapter IV on finance and building science and a doctorate in the interpretation of particular clauses trade outlines the changes effected to s90 architecture. Dr Cooke is described as a and so forth. in light of the decision in Ha v New South chartered architect, a solicitor and an Wal e s (1997) 189 CLR 465, whilst ar b i t r a t o r . The scope of the book is Reviewed by Geoffrey Wat s o n Chapter V’s discussion on ‘The States’ has ambitious: it commences with an been expanded in line with the introduction to the legal system, and then developments to the Cigamatic doctrine as proceeds to touch upon a remarkably a result of Re Residential Ten a n c i e s diverse group of subjects - contract, tort, Tribunal (NSW); Ex parte Defence Housing trade practices, agency and employment, Au t h o r i t y (1997) 190 CLR 410. damages, limitation periods, defamation, copyright and the professional conduct of The structure of the text is clear and in engineers and architects. There is an addition to the standard table of cases, the extensive section on matters relating to annotation has a useful table of statues and particular building contracts as well as an extremely useful table of constitutional planning and environmental issues. There provisions for quick access and reference. are even specific sections on, for example, The only criticism, and it is not wa i v e r , quasi-contract and equitable perhaps the fault of the authors’, is that es t o p p e l . curiously the currency of the content of the I think the book tries to do too much: text is as at 1 January 2000. Thus nearly it is very detailed which is obviously the two years later and the book is already a product of an enormous amount of little out of date. For example, omitted is research. The author constantly refers to any reference to R v Hughes (2000) 171 decisions of courts and tribunals, not just ALR in the chapter on judicial power. in Australia, but cases decided in the UK, This complaint aside, the annotation is Canada and America. In fact, this nevertheless commendable. It will prove probably constitutes the downfall of the to be an invaluable acquisition for those book, which ultimately fails to identify who only occasionally have recourse to principles, preferring to refer to all sorts of constitutional law in their practice and an decisions from all around the world. In essential complement to the constitutional this context it is irresistible to mention libraries of those who are more conversant that Dr Cooke cites, as authority for the with this field of law. proposition that foreseeability alone is inadequate to establish the existence of a Reviewed by Rachel Pepper. duty of care in tort, the case of Cr ochet v Hospital Service District No 1 476 So 2d 516 (1985) - a decision of the Court of Appeal of Louisiana. By trying to do too much, some fundamental things get lost. For example, although the book (which was published in

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NSW Solicitors team, one week NSW Bar Association v Queensland Bar e a r l i e r, had taken its toll. Injuries played havoc with the NSW game By Anthony McInerney plans. Bellanto Q.C. Association cricket game (knee), Mallon (knee) and Moen (knee) were On the weekend of 8/9 September malingering have been vigorously all unavailable to play. 2001, the New South Wales Bar disputed). Looking back, we Association XI travelled to Brisbane for For those who played, the batting should’ve had Merv the annual NSW Bar Association v was more memorable than the fielding. Cross on retainer. Queensland Bar Association cricket Dalgleish contributed a handy knock at H o w e v e r, hometown game. Despite assurances from many, the top of the order of 40 or so. Neil and advantage proved and confidence that two teams would Foord hit a few, whilst Reynolds S.C. was invaluable, with the The presure of on-field travel to Brisbane for the festivities, a steady. Gyles belted a quick fire thirty NSW selectors having captaincy showed on keen but not overly odd; and Ireland Q.C. and Toner S.C. did 15 players to choose La r k i n ’ s face. skillful group of twelve well at the end. King S.C. and Frank from. The interchange arrived at the Alan Border Curran provided admirable tail end bench, particularly Callaghan S.C., ‘...and players Oval to take on the might support. Unfortunately Poulos Q.C., provided great vocal support of the Queensland Bar, as White S.C. and McInerney did not throughout the match. thought to have part of the Goodwill trouble the scorers. NSW started strongly in the first Games. From the time the The less said about the fielding the half, Warburton scoring an early goal participated now New South Welshman b e t t e r, other than to note that King S.C. from a well-taken penalty corner. arrived, the result was pushed off the fence to open the Thereafter the Victorians replied deny they were fairly predictable. New bowling with his usual venom, and with some sustained attack. Their South Wales scored too Ireland Q.C. kept the wickets well. persistence paid off, and they scored present...’ few, whilst Queensland Frank Curran showed his commitment two goals in the remainder of the scored too many. As a to the cause by keeping score, first half. Worthy of note in the dying result, memories of the notwithstanding that his beloved moments of the first half was a game have faded more quickly than one Sydney University Rugby Club were in valiant attempt by Scotting to score a would ordinarily expect. In addition, the the first grade final that afternoon. Our ‘length of the field’ goal. Hockey score book has mysteriously thanks go to the Queensland Bar folklore awaited him (scoring a goal disappeared, photographs taken at the Association for their warm hospitality; from full-back is a lifetime time have not been developed, and a very pleasant evening was spent at achievement). Free in the circle, players thought to have participated now the home of Morris Q.C. and we are u n f o r t u n a t e l y, the last pass was just deny they were present (Poulos Q.C. much indebted to him and to the out of reach. denies ever having been to Brisbane, let Queensland Bar. All are looking The second half was a hard alone to the Allan Border Oval. forward to the return match next year. fought affair, with the honours being Suggestions that he is feigning or evenly shared. In the end we were hungry and Pritchard scored the equaliser with only minutes to spare. The New South Wales effort was Barristers hockey match 2001 based on heart and in this department players like Robertson, Jordan, Giagios, Rana and By Andrew Scotting NSW Barristers v Victorian M c M a n a m e y, gave 110 per cent. Welcome additions to last year’s side Just over one year after the Victorians. They arrived early by all were the new recruit Asha Belkin, games, the Olympic Hockey Stadium means, of planes, trains and and Ridley, a warrior, who played in again came alive to the excitement of automobile, following the Ansett his usual bruising style. Larkin was the greatest game of all, when the collapse. Appropriately dressed in inspirational as on-field captain. New South Wales Bar took on the black, they were brimming with The teams adjourned to the Victorians, on 13 October 2001. confidence and eager for the contest. p l a y e r ’s bar overlooking the stadium Last year they called us too old, Again, they managed to gather a and drank to the success of this too fat and too slow. This time we youthful outfit, although this year y e a r ’s game. Later, the teams got were almost too good. The brave they fielded Dreyfuss Q.C., who was together at ‘the Little Snail’ at underdogs of NSW registered a hard far too agile be a silk. Ultimo for dinner. Katzmann S.C. fought and well-deserved 2-all draw, Strict instructions had been given spoke on behalf of NSW, setting the against all odds. to New South Wales that alcohol was platform for many years of future Sydney turned on a perfect spring not part of this year’s preparation. r i v a l r y. Burchardt replied on behalf day to warm the hearts of the U n f o r t u n a t e l y, the match against the of the Victorians, declaring that the

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contest should become an annual event. Last year I received many copies of the match report that appeared in the ‘Last year they Victorian Bar News from concerned NSW called us too old, members. I hope this y e a r ’s result has too fat and too slow. restored faith in the noble few who defend This time we were the honour of the NSW B a r. Shagger and almost too good.’ Bunter would be proud. Thanks to Phillip Burchardt for gathering the Victorian team, Patrick Larkin for organising the ground and refreshments and our Chris Smith (umpire),Lawrence (ring-in), Giagios, Callahan S.C., Robertson, Jordan, umpires Chris Smith and Alison Ireland Q.C., Scotting, Ridley, McManamey, Rana, Warburton, Katzmann S.C., R o b e r t s o n . Pritchard, Larkin, Belkin, Alison Robertson (umpire).

standard-bearer will be carrying the 2001 - A chess odyssey official colours, so to speak. By Paul R Glissan To its eternal credit, the Bar Council gave Captain of the Bench and Bar Tea m its imprimatur, and, on 5 November 1993 Shaw carried the Bar’s colours into battle, In recent weeks I have been stopped in ably assisted, on behalf of the Bench, by crowded Selborne lifts and besieged with former Australian chess champion, Justice J S enquiries as to the whereabouts of the Ter r e y Purdy of the Family Court of Australia. Shaw Memorial Shield, following its sudden The Bench and Bar won the inaugural disappearance from the trophy cabinet in the match by the comfortable margin of 9-3, but Bar common room, where it had held pride of thereafter the going got harder and the outcome place for as long as most could remember. of subsequent matches often depended on the To all these enquirers I reply:- final game to finish on the night. Glissan and Chek with the Shaw Shield. In 1994 the Bench and Bar won by 10-8, Ah, Majesty, what labour it would be in 1995 by 11-7, in 1996 by 10-8 and in 1997 members at their oars, including the 1 1 to go through the whole story! All my years by 11-9; in 1998 the match was tied 8 /2-8 /2; legendary Kintominas (the memory of whom 1 of misadventures, given by those on high! in 1999 the Bench and Bar again won, by 8 /2- winning with three queens against a former 1 1 1 But this you ask about is quickly told. 5 /2; last year the match was again tied 6 /2-6 /2. op p o n e n t ’ s two queens will live with me for a (Ho m e r , The Odyssey) Shaw played on board one for the Bench and long time) and the mighty Ioannou, we set off Bar in each of the first four matches. On 6 September 1993 Shaw, for many across a wine dark sea in defence of the The first three matches were played in years one of Australia’s Chess Olympiad shield. As we approached the enemy camp, the genteel University and Schools Club, and representatives and chess editor of Th e the gallant Gordon McGrath, with a perfect were followed by long post mortems over Bu l l e t i n , startled the president of the NSW record of eight wins under his belt, was succulent roast beef and copious libations. Bar Association, John Coombs Q.C., with the overheard muttering, ‘the solicitors have me In 1996 Shaw handed over the Bar’s following news: in their sights this year’, and Watts was colours to me and the match was played in the overheard confessing that he had not played For some years now several colleagues and Bar dining room, and was followed by a myself have noted with disappointment a any chess in the past twelve months reception in the Bar common room. glaring omission in the Bar’s calendar of (including against his computer). Since 1997 the match has been played at social events: a Bench and Bar v Solicitors In a u s p i c i o u s l y , we were again without Bullfry chess match. the Law Society’s lounge and dining room. Q.C., who had gone to his Christmas Island Since then, like Trojans, our adversaries have Chambers in expectation of a boatload of This year we have decided to galvanise awaited our annual incursions to do battle clients, who insisted on a rigorous application ourselves into action and organise such a with them, peering down over the ramparts. of the Cab Rank Rule. More importantly, we match. We would like to confirm that our Since then, unlike Greeks, we have come team which charges into battle on 5th were without Justice Purdy. without bearing gifts, but proudly carrying the November will do so with the imprimatur To make our task even more difficult, all shield aloft. of the Bar Association Council, so that our our rated players were matched against This year, on 19 October, with fourteen

71 S P O R T I N G B A R C I R C U I T F O O D opponents with higher ratings. Whilst we were frothy mayonnaise on the side for dipping. This strongly led by the current City of Sydney Over the bridge for lunch is Flemish in style and it was a very good home- Champion, Tim Reilly, on board one and by By John Coombs Q.C. made light mayonnaise indeed. Ben Ingram on board two, our opposition was Next, a daily special of andoullité sausages, formidable: the current North Sydney Club A most pleasing judgment from Puckeridge a Belgian specialty filled with tripe and boned Champion, Malcolm Stephens, on board one, a DCJ brought lunch to mind and one of the team pigs’ trotter meat, served with seed mustard gravy on a bed of delicious mash. This was a former State champion, Roy Travers on board suggested the Belgian beer hall-type restaurant, Epoque Brasserie in Miller Street Cammeray. super daily special. The service was Belgian – two, 2126-rated Jeremy Hirschhorn on board The Cammeray shopping centre car park is just hearty and prompt enough. We stayed with the three, a former Australian Chess Championship behind it (handy), and you can go in from the car beer because it seemed right for the bangers and third placegetter, Ian Parsonage, on board four, park or from Miller Street. ma s h . and giant-killer Adrian Chek on board five. It is bright and open, with a bar, booths and We loved the place and, Nevertheless, as in previous years, we were tables to suit. It specialises in mussels and stews like Macarthur, will return! relying on our unrated players on the lower cooked in beer and is at the Flemish end of the Epoque Brasserie boards to secure victory for us. Belgian spectrum. There are four Belgian beers As the match progressed I was on tap (the Nesse Blonde is yummy, a very rich, 429 Miller St, Cammeray preoccupied with my game against Parsonage hoppy and tangy beer) and lots of other beers Ph: (02) 9954 3811 on board four and I mistook the frequently from all over – in bottles. Hours: Mon to Sat Midday to 10 pm They had four types of mussels on. We tried overheard ‘check, mate’ as an expression of Bar: Midday to Midnight friendship by the solicitors uttering those words mussels poullette, with white wine, leeks, onions, and spinach which were tender and Cards: MC, Visa, Diners, Amex to their opponents, until our perennial Director flavoursome, and mussels provencale, traditional of Play, Maurice Needleman, whispered to me, tomato, garlic and herbs, also excellent. All the ‘history is being made’. After conceding my mussel dishes come with a bowl of chips and a own game I then discovered that an upset had occurred, and the solicitors had won the match for the first time, and by a landslide margin of T H E J U L I U S S T O N E 1 1 11 /2-2 /2. McGrath’s foreknowledge of his own fate had been delphic. Our only points were scored by Bleicher and Cochrane (with wins The Dennis Leslie Mahoney Prize each) and by Ioannou (with a meritorious draw on board 14). The Julius Stone Institute of Jur i s p r u d e n c e is pleased to announce a This year the solicitors were simply too major new prize in the field of legal theory, provided for by a gift from the strong for us, and were worthy winners. I must honourable Dennis Mahoney Q.C. AO, former President of the New South admit, I can understand the elation of their Wales Court of Appeal. The prize has been established to honour the scholarship of Professor Julius Stone and to encourage legal work in the Captain, Chek, resplendent in a yellow tie field of sociological jurisprudence of which he was so many years a leader. emblazoned with chess kings, as the shield Its aim is to provide a financial incentive to secure the acceptance and was presented to him and he triumphantly development of an approach to law that successfully marries legal theory raised it above his head in a Leyton Hewitt with sociological inquiry, and to provide major recognition for path- breaking scholarship in the field. type gesture. Were it not for the plush carpet, he might have done a soccer style knee slide. The purpose of the Prize is to advance sociological jurisprudence as Co n s e q u e n t l y , the shield is now in the pioneered by Julius Stone, broadly understood as including legal analysis, th e o r y , reform, enactment or administration, involving a close understanding hands of the solicitors until we can win it of what are in fact the operation and the needs of particular societies, rather back and restore it to the Trophy Cabinet. To than a purely historical or conceptual approach to law. this end once again we will assemble next The Prize will be in the order of $50,000, and would normally permit the year and set off across a wine dark sea in winner to spend six months as a scholar in residence at the Julius Stone quest of the shield. Hopefully, when we return Institute. The Prize will be awarded at five year intervals and will recognise we will be able to say: work completed during the previous five years. The first award will be announced in 2005. Those who may be interested in being considered for the Dennis Leslie Your banqueting young lords are here in force, Mahoney Prize should study the rules and guidelines carefully. These are I gather, from the fumes of mutton roa s t i n g available from the offices of the Julius Stone Institute and may also to be and strum of harping - harping, which the gods found on its web site. Applications or nominations should be addressed to the appoint sweet friend of feasts! Director of the Julius Stone Institute of Jurisprudence at the Faculty of Law in (Ho m e r , The Odyssey) the University of Sydney. The application should, in due course, include four copies of a comprehensive curriculum vitae of the candidate together with four copies of the body of work to be considered by the Prize Committee. Applications and nominations will close on 31 December 2004. For further inquiries, contact the Director of the Institute, Associate Professor Desmond Manderson on 9351 0278 or by email to de s m o n d @ l a w. u s y d . e d u . a u .

I N S T I T U T E O F J U R I S P R U D E N C E LEVEL 13 FACU L TY OF LAW, UNIVERSITY OF SYDNEY - CNR. PHILLIP & KING STREETS, SYDNEY NSW 2001

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