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Barnelry$ the JOURNAI of the NSW BAR ASSOCIATI0N Surnrner 2001/2002 BarNelry$ The JOURNAI of the NSW BAR ASSOCIATI0N Surnrner 2001/2002 ll ll tl frtr.ltll lll Fr tll CI 'ln ? ."?"Ft 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 New South Wales 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/Sydney 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 Australia 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.
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