Dinner is back! Dinner The Annual Bar Annual The

Sexual It’s still It’s happening By Rachel Doyle SC Rachel Doyle By Harassment:

Vale Peter Heerey AM QC, founder of Bar News AM QC, founder Heerey Peter Vale

Plus:

ISSUE 169 WINTER 2021 WINTER 169 ISSUE

VICTORIAN NEWS BAR BAR 169

169 NEWS WINTER 2021 ISSUE 169 WINTER 2021 VICTORIAN BAR editorial

Editorial NEWS 50 Evidence law and the mess we are in GEOFFREY GIBSON Not wasting a moment 5 54 Amending the national anthem of our freedoms —from words of exclusion THE EDITORS to inclusion: An interview with Letters to the Editors 7 the Hon Peter Vickery QC President’s message 10 ARNOLD DIX We are ’s only specialist broker CHRISTOPHER BLANDEN 60 2021 National Conference Finance tailored RE-EMERGE 2021 for lawyers. With access to all major lenders Around Town and private banks, we’ll secure the best The 2021 Victorian Bar Dinner 12 Introspectives JUSTIN WHEELAHAN for legal professionals home loan tailored for you. 12 62 Choices ASHLEY HALPHEN Surviving the pandemic— 16 64 Learning to Fail JOHN HEARD Lorne hosts the Criminal Bar CAMPBELL THOMSON 68 International arbitration during Covid-19 MATTHEW HARVEY 2021 Victorian Bar Pro 18 Bono Awards Ceremony 70 My close encounters with Nobel CHRISTOPHER LUM AND Prize winners GRAHAM ROBERTSON CHARLIE MORSHEAD 72 An encounter with an elected judge Moving Pictures: Shaun Gladwell’s 20 in the Deep South portrait of Allan Myers AC QC ROBERT LARKINS SIOBHAN RYAN Bar Lore Ful Page Ad Readers’ Digest 23 TEMPLE SAVILLE, HADI MAZLOUM 74 No Greater Love: James Gilbert AND VERONICA HOLT Mann – Bar Roll 333 34 BY JOSEPH SANTAMARIA Justice Pamela Tate 26 JENNIFER BATROUNEY Back of the Lift Celebrating the life of 30 78 Adjourned Sine Die Peter O’Callaghan QC 81 Silence all stand JEFF GLEESON QC 83 Vale Barefoot Bowls starts 33 off 2021 in style 91 Tribute to The Hon Peter Cadden CAROLINE PATERSON Heerey AM QC 93 Victorian Bar Readers News and Views 93 Victorian Sexual Harassment: 34 it’s still happening Boilerplate RACHEL DOYLE SC 40 94 Red Bag, Blue Bag How remote? Videolinks and 40 96 A bit about words justice in Victorian Courts JULIAN BURNSIDE TOM BATTERSBY 98 Language matters You’re almost 20, Corporations Act 44 PETER GRAY Pause for Thought? The Case for 46 101 Book reviews Reversing the Abolition of TREVOR MONTI & PETER HEEREY De Novo Criminal Appeals 104 Verbatim: A Bar News tradition MICHAEL STANTON AND THE EDITORS PAUL SMALLWOOD CHAT TO US TODAY: (02) 9030 0420 [email protected] Level 21, 133 Castlereagh St. www.legalhomeloans.com.au NSW 2000 74 VBN 3 ISSUE 167 WINTER 2020 VICTORIAN Editorial BAR NEWS

Editors: Natalie Hickey, Justin Wheelahan, and Annette Charak VBN Committee: Natalie Hickey, Justin Wheelahan, Annette Charak, Carmella Ben-Simon, Campbell Thomson, Michael Wise QC, Stephen Warne, Tony Horan, Amy Wood, Temple Saville, Brad Barr, John Tesarsch, Jesse Rudd, Hadi Mazloum, Shanta Martin, Veronica Holt, Denise Bennett, Amanda Utt. Contributors: Jennifer Batrouney AM QC, Tom Battersby, Nicholas Baum, Liz Bennett, Christopher Blanden QC, Amanda Burnnard, Julian Burnside AO QC, David Carolan, Peter Chadwick QC, Annette Charak, Manu Choudhary, R P Dalton QC, Lucy Dawson, Nadia Deltondo, Arnold Dix, Rachel Doyle SC, Kylie Evans, Geoffrey Gibson, Bill Gillies, Jeff Gleeson QC, The Hon Professor Peter Gray AM, Peter Gray QC, Ashley Halphen, Monique Hardinge, Matthew Harvey QC, Robert Hay, John Seated L-R: Hadi Mazloum, Michael Wise QC, Natalie Hickey, Justin Wheelahan Heard, Rob Heath QC, Peter Heerey AM QC, Standing L-R: Temple Saville, Annette Charak, Campbell Thomson, Carmella Ben-Simon, Tony Horan Natalie Hickey, Veronica Holt, William Houghton Absent: Stephen Warne, Amy Wood, Brad Barr, John Tesarsch, Jesse Rudd, Shanta Martin, Veronica Holt, Denise Bennett, QC, Andrew Ingram QC, William Isdale, Robert Amanda Utt Larkins, Lucy Line, Grant Lubofsky, Christopher Lum, Kate Lyle, Hadi Mazloum, Liam McAuliffe, Trevor Monti QC, Charlie Morshead, Julia Nikolic, Anna O’Callaghan, Lara O’Rorke, Caroline Not wasting a moment Paterson, James Penny, Nicholas Petrie, Joanne Poole, Tom Porter, Graham Robertson, Siobhan Ryan, Tim Ryan, The Hon Joseph Santamaria QC, Temple Saville, Peter Searle, Gavin Silbert QC, of our freedoms Nicholas Simoes de Silva, Paul Smallwood, J X Smith, Michael Stanton, Evelyn Tadros, The Hon Pamela Tate SC, Campbell Thomson, Julia Wang, NATALIE HICKEY, JUSTIN WHEELAHAN, ANNETTE CHARAK Michael Waugh, Justin Wheelahan, Ella Zauner Photography/Images: Nicholas Baum, Bigstock, Peter Bongiorno, Amanda Burrnard, David Caird, he new normal of 2021 doesn’t feel very normal. Despite or Manu Choudhary, Nadia Deltondo, Geelong because of this, the determination of Victorian to Building mental fitness... Grammar Archives, Bill Gillies, Monique Hardinge, John Heard, Kate Lyle, Liam McAuliffe, W embrace all that our professional and social community has , Julia Nikolic, Lara O’Rorke, Caroline to offer leaps from the pages of this Winter issue of Bar News. Paterson, James Penny, Nicholas Petrie, Andrew From the get-go this year, we have been inundated with Together Ingram QC, Graham Robertson, Tim Ryan, Showtime Events Group, Trinity College Archives, articles and photographs from barristers enthusiastic to Julia Wang, Ella Zauner. document the social gatherings we no longer take for granted. We have Manager Publisher: Victorian Bar Inc., Level 5, celebrated being physically together with unusual intensity. The Criminal Chambers East, 205 William Street Melbourne Free Assist VIC 3000 Bar came together for a conference in Lorne after a challenging 2020. Career Registration No. A 0034304 S Family law practitioners engaged in barefoot bowls. Pro bono contributions Member The publication of Victorian Bar News may be were awarded. Lives and careers were acknowledged and celebrated. Art Assist cited as (2021) 169 B.N. T Assist formed a focal point once again. Confidential Opinions expressed are not necessarily those Member of the Bar Council or the Victorian Bar or of any In-person court appearances returned for many, often with instructors Assistance person other than the author. appearing virtually or via other hybrid arrangements. We adapted. Hygiene Available for up to Family Conflict Advertising All enquiries including requests for Program advertising rates to be sent to: and the efficient administration of justice sometimes sat awkwardly together, 5 sessions per issue Assist Assist Mia Montagliani becoming matters to negotiate and navigate. Judges and barristers discussed Victorian Bar Inc. the use of hard copy court books with witnesses. Barristers in some courts photo courtesy of peter bongiorno Level 5, Owen Dixon Chambers East Nutrition 205 William Street were asked to bring their own water bottles—jugs and glasses were no longer Money Melbourne VIC 3000 available except with the clandestine assistance of fantastic court staff. & Lifestyle Tel: (03) 9225 7111 Assist Seating became a commodity with many seats blanketed in ‘police tape’ to Assist Email: [email protected] Find out more or book an appointment: Illustrations, design and production: encourage social distancing. Guy Shield - www.guyshield.com We recognise the remarkable achievement of the Victorian Bar (and, in Printing: Southern Impact particular, the organisers) in hosting almost 600 barristers at the 2021 Bar • 1300 our eap (1300 687 327) www.southernimpact.com.au Contributions: Victorian Bar News welcomes Dinner. Our photospread reveals a sparkling evening. • [email protected] contributions to [email protected] We were in denial that we faced yet another lockdown as our publishing • www.convergeinternational.com.au deadline loomed. The experience was—as it was for everyone—flattening.

VBN 5 editorial Yet the friendship, collegiality and unstinting efforts of our VBN TO THE committee of volunteers motivated us to bring this issue to fruition. Letters Editors It does not surprise, in an environment where we cannot editorial editorial assume any swift snap-back to ‘life before’, that many barristers have written nostalgically of past experiences, or become more inward-focussed and reflective. We have compiled a new section, ‘Introspectives’, which groups these moving and warm articles. They Silbert’s article concerning Pell remind us of the precious, supportive community to which we belong. The spectrum of content we received, from an article on Peter v The Queen in (2020) 168 Vic. B.N Vickery QC’s part in drafting a new verse for Australia’s national ear Editors, the second alleged victim to refute numerous sacred objects from the anthem, to Graham Robertson’s encounters with F.A. Hayek and Gavin Silbert QC’s article the allegations. sanctuary near the altar to that room. Lech Wał sa, reminded us that our common interests in justice can ę in issue 168 of the Bar Silbert objects to any journalist These basic facts invite incredulity transcend our differences. D News (Summer Edition) leaves, who has asserted, since the High but, in addition, there were Victorian Bar News is also known for its penetrating analysis. In Circa 1990, Peter Heerey captaining his Latham side to victory (although reportedly surpassed by the Owen Dixon West team in or may leave the reader, with the Court decision, that the complainant numerous witnesses who attested keeping with this, Rachel Doyle SC, fresh from publishing Power & “wine appreciation and other objective standards of general revelry”). impression that the alleged victim was a liar. In our view, even if he that such activity by the Cardinal Consent, challenges us in ‘Sexual harassment: it’s still happening’. in Cardinal Pell’s case was a person was not a liar, any reasonable mind was impossible. Not only was the That the Bar has engaged in numerous surveys and reports over the who told the truth and that the High must conclude that the complainant’s room the centre of “a hive of activity” years does not mean that these issues are now resolved. Court decision was not a complete evidence was false. at that time, but the Cardinal was Tom Battersby in ‘Videolinks and Justice in Victorian Courts’ exoneration of the Cardinal. The complainant asserted that required by old Church lore to be argues that we cannot allow remote hearings to become entrenched Indeed, after reading the article, the Cardinal carried out the most accompanied at all times while without first considering their impact on the quality of our justice one might feel compassion for horrific sexual assaults, including in full dress at the Cathedral. system. He asks us to consider how to use available technologies the alleged victim rather than fellatio, on two 13-year-old boys The alleged victims were choir without diminishing what makes our courts human. compassion for the actual victim, without any grooming and, indeed, boys in a choir controlled by a Michael Stanton and Paul Smallwood present the case against Cardinal Pell. without any knowledge of their choir master and a dozen adult abolishing de novo criminal appeals: reforms that have been put We ask that you publish this letter personal background, whilst in full choristers; and were strictly required on hold due to the Covid pandemic, by asking the question if in the next issue of the Bar News Church regalia immediately after a to remain in the formal procession de novo appeals should not be abolished now, should they be because we feel it is essential that well-attended Solemn Mass; and in and commence choir practice abolished at all? the balance be corrected so that a room with an open door which was immediately thereafter. Examination We pay tribute to Bar News founder, Peter Heerey AM QC, who those barristers who have not been about to be overrun by numerous of the time frame for the died recently. In preparing our tribute, we enjoyed looking through following the detail of this unusual co-celebrants, altar boys and others performance of the actions of those archival copies and seeing aspects of his life, poetry, good humour, case can seriously consider whether at the conclusion of a procession and involved confirms the implausibility civility and achievements recorded within their pages. or not the rule of law in this state who were then to commence ferrying of the complainant’s account. ‘Verbatim’ was a regular feature of Bar News under Peter failed the Cardinal. In Heerey’s stewardship. For the uninitiated, almost from this doing so, we acknowledge magazine’s inception, readers have sent in excerpts of transcript, Gavin Silbert’s right to hold recording lighter moments of court appearances. In fact, so many Social distancing rules at the Federal Court Building in William the views he has expressed, contributions were provided by 1988, the Bar Council of the day Street mean it’s standing room only for conferrals. but disagree with them in published a book of best examples. In recent years, ‘Verbatim’ had material respects. largely lapsed, buckling somewhat under the weight of suppression Silbert says there were orders and other legislative road-blocks which make it more two complainants: but there challenging to publish with impunity. Undeterred, we want to bring was only ever one; and he back this tradition. The final pages showcase examples past and made his complaint after present for your enjoyment and inspiration. the second alleged victim Thanks once again to Guy Shield who has done stellar work in was dead. That second bringing our magazine to life. We also thank Denise Bennett of alleged victim had, in fact, Bar Office who has provided amazing support behind the scenes denied ever having been for so many years. Denise is the very best of detectives, helping sexually assaulted and one our committee track down authors for our Back of the Lift Section, of the disadvantages faced organising our articles, and making sure that we remain focussed on by the Cardinal as a result the task at hand. of the long delay by the Please tell us your thoughts, your ideas, submit stories, give us complainant in making his photos, and we will do our best to publish them. Contact us at historical complaint was that [email protected]. the Cardinal was denied The Editors VERBATIM is BACK! the opportunity of calling

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It is a natural inference that this systemic break-down investigation of the allegations should appeal were to be successful, but the not support that finding; Tyrrell v. R This acknowledgement by Silbert was a consequence of the fetid atmosphere created by inevitably have resulted in the police High Court would have none of that. [2019] VSCA 52 is another shocking is entirely consistent with his and the DPP refusing to take them It dismissed the Crown’s argument example. reputation as a fair prosecutor news and views news media propaganda. further. But that would have required on this score as specious, quashed In our view, Silbert is wrong and, of course, perfectly in accord the courage to withstand the pressure. the convictions and entered verdicts to deride the analogy with the with the best traditions of the Controlling the media is, of of acquittal on all charges. Dreyfus Case: Dreyfus was charged, Victorian Bar. Of course, the nature of the proclaiming the Cardinal’s innocence. course, a fraught problem. Freedom As Australians, we can be relieved convicted and imprisoned because In that exchange of emails, Mr appeal under section 274 of the This is an inversion of what occurred. of the media is important, but that the High Court continues to he was a Jew. It is, unfortunately, Henderson says that he, himself, has Criminal Procedure Act 2009 From the outset, there was an some journalists abuse it and alas protect us under the rule of law. As now open to conclude that Cardinal never described [the complainant] as (Vic.) presupposed that the jury unrelenting media campaign directed there are always politicians who Victorians, we must face the reality Pell was charged, convicted and a “liar”. I believe that some individuals had accepted the honesty of the against the Cardinal and his Church are too ready to jump on the band that the rule of law broke down imprisoned because he was a have clear “recollections” of events complainant, but that does not which created such an atmosphere of wagon. It is for this reason that the and failed the Cardinal (albeit that Catholic. that never happened and I am well detract from the fact that the antipathy that many were convinced other checks and balances of the Robert Richter QC and Weinberg J Since writing the above, we aware of the fallibility of memory. You complainant’s allegations were that he could never get a fair trial. democratic legal process are so upheld the finest traditions of the have read the exchange of emails don’t have to regard a complainant as demonstrably false and that the Silbert, for his part, excuses this, important. Unfortunately, the power Victorian Bar and judiciary). between the author and journalist a conscious liar to cast doubt on his Cardinal had to be acquitted. implying that the Cardinal, being who of the propaganda was such that It is a natural inference that Mr Gerard Henderson and Gavin or her recollection of events. Robert Richter QC, acting for he was, and “enjoying” a controversial it overwhelmed those checks and this systemic break-down was Silbert QC which was published by the Cardinal, told the jury that the public reputation, was fair game. In balances in . a consequence of the fetid the former on his Media Watch Dog We agree. Although we allegations were impossible whilst the same Bar News in which Silbert’s As noted earlier, Silbert suggests atmosphere created by media site. On 23 February 2021, Silbert believe that the allegations were Justice Weinberg, whose dissent in article appears, there is an excellent that those who continued to refer to propaganda. To restore the rule of wrote that he had recently finished demonstrably false, we have no the Court of Appeal was upheld by article by Andrew Kirkham QC, who the complainant as a liar constitute law in Victoria, we consider that it reading way of knowing whether or not the the High Court, considered that the represented the Chamberlains in the a “more egregious example of gutter must be acknowledged that it failed complainant believed his assertions. ‘The Persecution of ’ by complainant’s evidence in respect of 1980s. Kirkham draws an analogy journalism”. Notwithstanding that in respect of the Cardinal. Silbert’s Yours faithfully, Keith Windschuttle ‘which is as good the second occasion of offending was between the hostile press in the there are grounds for believing article does not acknowledge this. RP Dalton QC an analysis as one could hope to so implausible that, “I would have Chamberlains’ case, which created a the complainant did not tell the Unfortunately, this is not the Michael Waugh find...I must say after reading this I thought that any prosecutor would pre-trial presumption of guilt and the truth, he has been able to keep only case where a Catholic priest JX Smith was persuaded that not only was the be wary of bringing a charge of this adverse pre-trial atmosphere created his identity secret. This ability to has been found guilty by a jury standard of proof not met, but that gravity against anyone” ([2019] VSCA by the media in the Cardinal’s case. name and besmirch others whilst where the evidence obviously did Pell was an innocent man.’ 186 at [1096]). That analogy is correctly made. remaining anonymous is one of the Richter’s cross-examination at the Those journalists, who were more troubling aspects of modern committal uncovered that the police concerned that the Cardinal was being procedures. did not investigate a crime; rather persecuted, rather than prosecuted, We consider that a further they investigated a citizen. They were very thin on the ground and worrying part of this matter is the A right of reply canvassed for people to come forward constantly derided for their views. majority judgment of the Court of The Editors, publications fuelling public discord. A reply to this letter with allegations to support charges. In the result, their fears were well Appeal. The majority appear to have Victorian Bar News would do nothing other than prolong an emotional and This manner of proceeding is more grounded and were borne out. Such inverted the onus and standard of The letter from Messrs. R P Dalton QC, Michael Waugh polemical dispute. In short, I am happy with my piece akin to the conduct of a police state journalists were the antithesis of the proof. They determined, despite what and J X Smith, in my view, misunderstands the criminal and see no point in explaining the meaning of a verdict rather than of a liberal democracy. gutter press. The ugly lynch mobs Weinberg J and the High Court called law. Any reader of their letter need only study the of “not guilty” to members of the Bar. Silbert says the complainant was outside the Magistrates’ Court during the “compounding improbabilities” judgment of the High Court to read a complete response Incidentally, I have just finished reading Keith “dignified”. The majority in the Court the committal, and outside the County created by numerous witnesses to their assertions. Windshuttle’s The Persecution of George Pell which of Appeal found his demeanour Court even on the first mention date testifying that the occasions Apart from one typographical error placing the contains a large amount of material not produced at the convincing. But so what! Dignity following the committal, were a plain described by the complainant could complainant’s first complaint in 2005 rather than 2015, trial. Having read that book I am persuaded that the and demeanour are woefully fragile manifestation of this hatred fomented not have occurred, that it was still I unequivocally reject the criticisms made. Cardinal was an innocent man but that is not a conclusion foundations for the truth. This is by certain sections of the media. To possible that they did occur. For I feel that my case note covered the legal issues that one may draw from the judgment of the High well recognised: see Weinberg J’s see Cardinal Pell having to jostle them, this possibility sustained the involved in the case, acknowledged the erroneous Court and to reason, as your correspondents do, that discussion at [916]-[924]. his way through faces of hatred and Cardinal’s guilt. Yet, for Silbert, their majority judgment of the Court of Appeal and concluded the judgment permits such a conclusion is not, in my Silbert says that the fact that the shouted taunts as he made his way error was apparently no more than that the High Court rectified the miscarriage of justice view, permissible. Cardinal was found guilty by the jury to the entrance of the County Court grammatical, a mere “solecism”. by the application of conventional and settled law. I also Gavin Silbert QC justified the bringing of the charges. for his sentencing hearing, and to The High Court had no referred to the unfortunate public controversy amongst Owen Dixon Chambers This is circular logic. The worst hear the rejoicing mob chanting and difficulty allowing the appeal in a the Cardinal’s proponents and opponents and related consequence of the breakdown in singing outside the Court, once it was comparatively short and emphatic the normal checks and balances of known that Cardinal Pell had been judgment that was, not only the legal process is that an innocent imprisoned, was deeply disturbing. unanimous, but also spoke with one person will be found guilty. Victoria has not witnessed such voice of all seven judges. Have your Say Silbert contends that there was a conduct even when a serial killer The Crown asked the High Court to Victorian Bar News encourages letters to the Editors on topics ranging from the meaningful to the mundane. Write to the Editors sustained and unrelenting campaign like Dupas was sentenced. A proper schedule yet a further hearing if the at Victorian Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 or email [email protected]

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MESSAGE The past year has shown that we can’t take for granted that the Bar as Challenges we know it will always be here. and rewards we are delighted with the appointment of our Recommendation 88 has already CHRISTOPHER BLANDEN new executive director, Amanda Utt. seen the Legal Services Commissioner As we all know, the return to face-to-face withdraw the Bar’s delegation to investigate court hearings has proved difficult. Social complaints against barristers as of 30 June his year, the Bar’s 180th distancing requirements until recently had 2021—notwithstanding our opposition. anniversary, has proved to particularly impacted on jury trials. Thankfully, Recommendation 86 suggests the introduction be interesting, challenging and despite the recent circuit breaker of mandatory reporting by lawyers of the and rewarding, not always interruption, the trend is towards in-person suspected misconduct of other lawyers. Both in equal measure. hearings again being the default position. the ABA and the Victorian Bar oppose this as When the current Bar Jury trials are returning. unnecessary and unworkable. There is much Council took office late last year, there was Court employees and barristers are now, to play out in this space. a significant level of discontent among our appropriately, considered authorised workers, Among this year’s notable achievements members in relation to a number of issues. enabling work from chambers during was the launch of the Bar’s health & Chief among them was a feeling that listening coronavirus-induced lockdowns and the wellbeing portal. The brainchild of the to members was no longer popular. The T provision of the ancillary services. Health & Wellbeing Committee, the portal’s fundamental concept that the Bar is a member Importantly, it is up to individual members great value is that it provides information organisation seemed to have lost importance. to determine how to comply with their legal and practical resources to support the physical Consultants appeared to have more sway on obligations when it comes to whether they and mental wellbeing of our members and significant Bar issues than members’ voices. A are able to work at home or otherwise. It is not their families and colleagues. number of our cherished institutions looked to the Bar’s task to tell you which choice to make, The outstanding efforts of Victorian be under threat. The Bar Council’s first priority rather to facilitate your ability to make that barristers in assisting access to justice at all was to listen to members and address some of choice. The beauty of the Bar (and presumably seniority levels and in many different forums the areas of greatest concern. the reason many of us joined) is that as were recognised, in part, in the Victorian Bar We set about working through the immediate barristers we make our own decisions about Pro Bono Awards. Our congratulations to the issues. Adoption of the Nous report was revoked our legal obligations and run our own practices. nominees and winners of this year’s awards. and the future responsibility for the course A number of other issues have arisen. The We were delighted that the decision to structure was retained by the Readers’ Course publication of the Szoke report provoked many proceed with this year’s Bar dinner proved the Committee. Discussions commenced with the headlines and shone a spotlight on sexual correct one (although only just!). The biggest Essoign Club to secure its future and by the time harassment in the law, with only one of its dinner ever held with 573 attendees, it was also you read this, the Bar and the club should have recommendations directed to the Bar. Pleasingly, one of the most successful, with a fabulous entered into a new long-term lease. under the direction of the Equality & Diversity night enjoyed by all. We were able to celebrate We quickly focused on the need to Committee, the Bar was already in the process the notable achievements of more than 80 overcome the organisational and financial of preparing a leadership CPD, that now of our members. The shared identity and impacts of the pandemic while providing incorporates the recommendations of the report. camaraderie of being a member of the Bar our members with meaningful support. The Royal Commission into the Management was clearly on show. We have managed to achieve substantial of Police Informants produced its findings and Finally, the past year has shown that we savings in the Bar’s expenditure and were recommendations late last year. The Bar has an can’t take for granted that the Bar as we very pleased to announce as a direct product ongoing role in the implementation of some of know it will always be here. The view that of this a rebate on the current year’s member the recommendations through its participation the independent Bar is integral to our subscriptions and reduced subscriptions in the RCMPI taskforce. This is an exercise not society and system of justice is not a view for next year. without its challenges, as there are a number necessarily shared by everyone. It is up to There have been a number of changes in the photo courtesy of peter bongiorno courtesy photo of recommendations with which the Bar does us all to ensure the continuance of a strong organisational structure of the Bar office and not agree. independent Bar.

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QVictorianBY JUSTIN WHEELAHANBar N 21 MAY 2021, THE VICTORIAN BAR REPRISED THE ANNUAL BAR DINNER FOR 2

A FLEETING MOMENT2021 OF LIBERTYDinner AFTER LAST YEAR’S EVENT WAS CANCELLED. 1. Elle Nikou Madalin, Nik Dragojlovic 2. Christopher Blanden QC, the Hon Justice Steward 3. Georgie Costello QC, Phil Cadman 4 Anthony Strahan QC, Kate Beattie, Justin Wheelahan SPIRITS WERE HIGH AS WE WERE GREETED ON COLLINS STREET BY 5. Senator the Hon Amanda Stoker 6. Natalie Campbell, Alex Finemore, Hadi Mazloum, VICE-PRESIDENT RÓISÍN ANNESLEY QC AND EXECUTIVE DIRECTOR AMANDA UTT. Julia Lucas 7. Gemma Cafarella, Anna Martin, Rebecca McCarthy, Katie Powell WE THEN DESCENDED THE GRAND STAIRCASE OF THE SPANISH PIAZZA STYLE FOYER INTO THE STUCCO ROCOCO PURPLE LIT INTERIOR OF THE PLAZA BALLROOM.

The format was a little different this year: from her extensive research of the Internet. 4 a slick professional covers band helped Justice Steward gave a recondite account everybody feel relaxed and comfortable, the of the inception of the Victorian Bar, and speeches were short, and the bar served dark told the story of young Sir Owen Dixon’s ale—but there was no dancing. Victorian “abject failure to persuade” Justice Higgins Bar President, Christopher Blanden QC in an obscure tax case. This gave some welcomed more than fourscore honoured solace to all those present, all of whom guests. He then skipped over several pages who had at some point shared the traumatic of his prepared speech with “I can’t say that”, bond of having failed to persuade the until he got to the part about the venue’s bench. But the most resounding applause COVID restriction requirements. came for Justice Steward’s account of Chris Blanden explained the venue had the Victorian Bar’s lightning speed in restricted 25 people to the dance floor at accepting pro bono jobs advertised on any given time in order to comply with the the new portal. gazetted density quotient of one person For the record breaking 573 guests who per four square metres. The venue also came out, it was a great opportunity for 3 Orequired a “dance monitor” to be nominated conviviality and to catch up with colleagues to enforce the said dancing density quotient. who we had not seen in the flesh for over a 5 6 Junior Vice President Helen Rofe QC (as year. Now many of us feel a bit like Dorothy her Honour then was) had (unsurprisingly) returning to the black and white of Kansas declined the President’s invitation to take after the technicolour of Oz: “But it wasn’t a up this role, given she obviously had better dream. It was a place, and you and you and things to do. So, there was to be no dancing. you... and you were there! But you couldn't Senator the Hon Amanda Stoker, have been, could you?” Little did we know the Assistant Minister to the that within a week, Victoria would be locked Attorney-General, Women, and down again. It is a testament to the Bar Industrial Relations, also made a Council, and especially Róisín Annesley, for

photos courtesy of peter bongiorno courtesy photos speech. Róisín Annesley gave a organising such a great party that ensured ludic introduction to the Hon the tradition of the Victorian Bar Dinner Justice derived continued in 2021.

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1. Victorian Bar 2 Vice-President Róisín Annesley QC 2. Dr Andrew Hanak QC, Peter Jopling AM QC 3. Caitlin Dwyer, Ben Bromberg, Rose Singleton, Anna Martin 4. Simon Wilson QC, Gerard Meehan 5. Victorian Bar President, Christopher Blanden QC 6. Dara Isaacson, Lara O'Rorke 7. Zoe Anderson, Jesse Rudd, Claire Harris QC 8. The Hon Justice Will Alstergren, the Hon Justice Michelle Quigley 5 7 8

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Surviving the pandemic— 01. Simon Lee, Bradley Newton 02. Charlotte Duckett, Judge Elizabeth Gaynor, Elizabeth 13 Ruddle SC 03. CBA President David Hallowes SC, CBA Vice-President Sally Flynn QC Lorne hosts the Criminal Bar 4. Gordon Chisholm, Elizabeth Tueno, Amanda Hurst, Samantha Holmes 05. Jim Shaw, Kyriaki Vavoulis 06. Campbell Thomson, John Dickie 07. David Hallowes SC, Neil Hutton CAMPBELL THOMSON 08. Vivienne Jones, Briana Goding, Jennifer McGarvie, Julia Kretzenbacher, Stephanie Wallace 09. Dr Steven Stern, Tom Sawyer, etween 19–21 March 2021, over a hundred members of the error rate. If you can’t say what the error rate is for a particular test, Rohan Barton 10. Judge Gerard Mullaly, Judge Elizabeth Gaynor, David Hallowes SC, Justice Criminal Bar Association gathered for a conference in Lorne you can’t say what weight a jury should give to any result. Volpe v The Lex Lasry 11. Nick Mutton, Kyle Jeans, Annie after a year without jury trials. The incomes of many had Queen ([2020] VSCA 268), the recent case on shoe print evidence, Yuan 12. Joanne Poole, Glenn Barr 13. Stewart B Bayles, Diana Price declined by at least 80 per cent. JobKeeper might have paid for made the point. Unconscious bias is a problem which jury directions chambers but it didn’t pay the mortgage or school fees. But when can’t alleviate. If fire experts are told insurance coverage rose before Jim Shaw’s band Bridgetown played Echo Beach by Martha and the a fire, testing found that the experts are more likely to conclude there Muffins on Saturday night at the Mantra Hotel, barristers and judges was arson. let it all hang out. Judges Trish Riddell and Mandy Fox then demonstrated how the The 2020 conference had to be adjourned when the Criminal Bar’s Sentencing Act 1991 (Vic.) could use some scientific clarity. Printed basis that this will not be enough to Several members have given up chambers and are annus horribilis began. At the welcome drinks at Movida Lorne on on double-sided A4, it’s bigger than the phone book. You need a keep us all in business. Several members Friday night, WebEx-weary barristers looked forward to possible jury magnifying glass to decipher it. Further, the Act could be considered have given up chambers and are taking taking on other jobs. trials in the County and Supreme Courts. They pondered when the a straitjacket for judges. Standard (ersatz mandatory) sentencing on other jobs. Magistrates’ Court would open for business. They greeted friends applies to serious offences, but not if the offender is under 18, not The tucker at the dinner on Saturday traumatic facts all the time. We need to breathing all work. Be proud to be in they’d only been seeing on Zoom. if the offence is heard summarily, and not if the offence occurred night was okay. The dancing afterwards recognise this and act accordingly. We a caring profession. In her opening address on Saturday morning, Justice Lesley before February 2018. When does an offender qualify for mitigation was a blast. Nothing like jumping up and can suffer from hyperarousal, avoidance Gavin Silbert QC and Sally Flynn QC, Taylor asked "What can Harry Potter teach criminal barristers?" for assisting the prosecution? What level of impaired mental down with your mates to let off steam. behaviour, somatic disturbance, anxiety speaking on miscarriages of justice, was The answers were witty, erudite and engaging, especially for those functioning is required to make general deterrence less relevant? Even the gate crashers thought so! or adrenalin addiction without realising light relief in comparison. The conference whose kids would not sleep without hearing about Harry Potter and To find the answers you need to loop back and forwards through Sunday morning’s session on vicarious it. Protective behaviours include having wrapped up with Peter Chadwick QC the Prisoner of Azkaban. Sadly, the Veritaserum (Eds: powerful truth the statute and its schedules. As was convincingly put, no layperson trauma with Psychologist Robyn Brady supportive relationships to talk things using hypotheticals to illustrate ethical serum for the uninitiated) is still unavailable to cross-examiners. without a PhD in logic and linguistics could follow it. saw many nursing self-inflicted trauma out, proper holidays so harmful brain dilemmas and how to solve them. We need the Reviving Spell for all Courts. After lunch, the panel of Justice Lasry, Judges Gaynor and Mullaly from the night before. Vicarious trauma chemicals break down, allowing humour Well done to the CBA for organising Professor Gary Edmond then contended that the High Court plus CBA Chair David Hallowes SC discussed post-Covid trials. became a thing when those treating to release stress, and using different this conference with something to take in IMM v The Queen ([2016] HCA 14) was out of step with other There was clear frustration that 75,000 screaming spectators Holocaust victims began suffering the activities to regenerate. Cultivate from every session. The Criminal Bar is common law jurisdictions in deciding that the reliability of evidence could occupy the MCG but, at the time, the County Court could same symptoms as their patients through gratitude and empathy, maintain vital to criminal justice Good dialogue was a jury matter. In his view, there must be an accepted knowledge only cater for six jury trials. Judge Mullaly explained how this should bearing witness to their suffering. We mentors, ask colleagues how they’re with the Bench is essential. The high base to justify the validity of a forensic technique. For example, DNA soon expand with 11 in Melbourne and six on circuit in modified are empathetic creatures with mirror going, don’t be afraid to seek help. from bopping to Bridgetown takes us has well justified validity testing, but fingerprint evidence has a high courts. There were frank discussions about the problems, on the neurones. Criminal barristers deal with Mindfulness, good posture and deep only so far.

16 VBN VBN 17 around town

around town around For the Public Good

A report from the 2021 Victorian Bar Pro Bono Awards Ceremony CHRISTOPHER LUM AND CHARLIE MORSHEAD

very two years, the Bar’s Pro Bono Awards recognise some of the Eexceptional pro bono contributions made by Victorian barristers. While much pro bono work done at the Bar goes relatively unseen, the Awards serve Schilling, the first of four new awards was recognises the significant contribution lawyers and the significance of the Bar Hotel, are open to rich and poor alike", and The winners of the 2021 as a valuable reminder of the power of inaugurated: the Debbie Mortimer SC made by Gunditjmara elder Uncle Jim now having for the first time an award noted the privilege pro bono work gave him Pro Bono Awards were: this work and its important place in our Award for outstanding pro bono work in a Berg, described to those present by named for a First Nations person which to admit his clients to the Ritz. » Debbie Mortimer SC Award—Joel Tito Bar’s culture. Tribunal or Magistrates’ Court. As Justice Ron Merkel QC: specifically celebrates work assisting First All award winners, as well as those » Uncle Jim Berg Award—Jason Gullaci This year’s Awards were announced Mortimer reminded those in attendance: Nations people. nominated and all members of the [I]n the early 1970s Ron Castan, myself » Daniel Pollak Readers’ Award— at a ceremony at the Owen Dixon Among the award presenters, Victorian Bar who provide pro bono These are jurisdictions where members and other founders of the Victorian Stephanie Brenker Commonwealth Law Courts building on distinguished guests assistance, deserve congratulations for of our Victorian community are most Aboriginal Legal Service appointed a » Ron Castan AM QC Award—Jim Hartley 5 May 2021, thanks to the generosity AC QC and Ron Merkel QC presented their efforts not only in giving their clients likely to interact with the justice then very much younger Jim as the first » Susan Crennan AC QC Award—Scott of the Family, Federal and High Courts existing awards named in their honour, access to justice, but also in assisting our system. Where we find the greatest field officer of the Service. Morris in permitting the first public function to while Renee Sion presented the Daniel courts and tribunals in the administration diversity in backgrounds, cultures, » Ron Merkel QC Award—Haydn be held in the building since the start of Jim, with Ron and my support as Pollak Readers’ Award named in honour of justice. Pro bono work is meaningful in languages, needs and legal problems. Carmichael the pandemic. The Victorian Bar Choir the Service’s legal advisers, built up of her late brother. every form it takes. » Public Interest/Justice Innovation (together with DHHS choir ‘Acapella And: a record of achievement in creating The evening’s grand prize, the Victorian Award—Michelle Zammit Go!’) opened proceedings with rousing access to justice for the Koori people Bar Pro Bono Trophy (for outstanding The dignity and value of pro bono work » Equality Award—Leopold Faust renditions of Let Your Little Light Shine, in Victoria and in protecting their individual achievement in pro bono does not come from the venue, the » Pro Bono Team Excellence Award— Blackbird and Freedom is Coming, to the cultural heritage. advocacy over a long period) went to number of judges present, the level of Áine Magee QC, Dr Sue McNicol delight of attendees who had not heard … Matthew Albert, for his exceptional media coverage, or whether your name AM QC, Elizabeth Ruddle SC, Marko live music in months. pro bono contribution over many years, ends up in the authorised reports. No, In Uncle Jim’s words he has been Cvjeticanin, Fiona Ryan, Maria Justice Joshua Wilson of the including substantial recent work in it comes from the quality of the service driven in everything he has done by the Pilipasidis, Barbara Myers, Fiona Family Court gave an opening speech the NTCAT and NT Supreme Court you provide to a fellow member of your principles taught by his elders. He has Spencer, Andrew Sim, Dr Kylie celebrating the efforts of the various assisting residents of remote indigenous community who needs your skills and written about those principles but from Weston-Scheuber, Mathew Kenneally nominees in providing a voice to those communities to secure safe and experience. my observations over 50 years, Uncle and Gayann Walker who most need it. His Honour noted comfortable housing. The Trophy was Jim’s basic principle has always been » Victorian Bar Pro Bono Trophy— how those who offered pro bono Another notable addition to the presented by 2019 winner Michael Gronow that the ends do not justify the means. Matthew Albert assistance did so with the pure objective Awards was the Uncle Jim Berg Award QC, who was thrilled to announce Matthew Descriptions of the work done by the of acting in the public good, rather than for outstanding pro bono advice or Magistrate Abigail Burchill, a Yorta to be "a very deserving winner". In an winners, and a full list of those nominated the desire for recognition. Following a advocacy that enhances access to Yorta/Dja Dja Wurrung woman, spoke inspiring acceptance speech, Mr Albert for the 2021 Awards, are available on the further welcome from the Chair of the justice for First Nations clients (either powerfully about Uncle Jim’s contribution recalled Lord Darling’s ironic observation Victorian Bar’s website. Bar’s Pro Bono Committee, Meredith nationally or in Victoria). The award as a mentor to her and other indigenous that "the courts, like the doors of the Ritz

18 VBN VBN 19 photos courtesy of peter bongiorno around town F a 1973 Rolls-Royce Corniche, which he a self-portrait. Init,Rennie road-trips in Triennial:Art DefyingEmpire in2017, is commissioned for theNGA’s Indigenous body inways whichdonotneedwords. masterful communicator. Shecanmove her one oftheworld’s great screen actors, isa moves butitworks becauseCate, being on acostume and dances alone.Strange Company, Cate engages withachair, puts in acavernous room atSydney Theatre 20 VBN (Cate BlanchettPortrait 2008). of Cate Blanchettby David Rosetsky Australia hasamoving picture portrait photography donot. traditional mediasuchaspainting orstill pictures engage thesensesinways that portraits inpubliccollections. Moving Moving Pictures: ShaunGladwell’s Reko Rennie’s videowork (OA_RR 2016), The NationalPortrait Gallery of there are notmore moving picture years old,itissurprisingthat or amediumwhichisover 120 portrait ofAllanMyers AC QC 1

Filmed Filmed SIOBHAN RYAN* or three. or three. anaperitivo mesmerizing—especially after CBD restaurant, DiStasio Citta; still it canbeviewed attheMelbourne The effect was mesmerizing. Nowadays room withathumpingguitarbackingtrack. projected onthree walls inadedicated Kamilaroi. At theNGA,OA_RR 2016 was sand paintingstraditionally worked by the the sand.The tracks emulate themassive around incircles—doughnuts, actually—in defiance. Oncountry, hedrives around and through blackcamouflage isRennie’s callto The hotpinkKamilaroi motifbreaking Rolls-Royce isareference to white wealth. work for rations onpastoral stations.The the age offive to live onmissions and the place from whichshewas taken at This ishisgrandmother Julia’s country; South Wales andsouthernQueensland. country covers vast areas New ofnorthern a motifoftheKamilaroi people, whose has daubedincamouflage underlaidwith and reflecting thatintheirtechniques. seeingthem differently each artist (1867–1943) alsopainted theGrampians, from 1852–1882) Streeton andArthur both thefilmandpainting. Mt Sturgeon dominates thelandscape in to anotherpaintingofMyers by Gladwell. final minutes, thefilmicview transitions Allan Myers inhisgarden atDunkeld. Inthe man. This portrait dissolves into theliving back to camera, paintingaportrait ofa The 13-minute videobeginswithGladwell, Allan Myers AC QCby ShaunGladwell. has itsown videoportrait. Aportrait of Australian soldiers stationedthere. Kout 2009)ishisofficialportrait ofthe DoubleField,Artist. Viewfinder (Tarin in Afghanistan asAustralia’s OfficialWar YouTube. Nineyears later, Gladwell was grunt skateboard videoswhichpopulate lens. Itistheantithesisto thehighenergy, in, enveloping himandobliterating the grinding andtwisting ituntilthestorm rolls Gladwell works hisskateboard gracefully, edge ofaconcrete pier, withastorm rising, self-portrait. Filmed inslow motiononthe work Storm Sequence (2000)isalsoa the moving picture portrait. Hisbreakout Eugene Von Guerard (active inAustralia Now, thePeter O’Callaghan QCGallery Shaun Gladwell isanother master of Shaun Gladwell andAllanMyers AC QC

the 180 April 2021, ontheday whichalso marked at thePeter O’Callaghan QCGalleryon12 The portrait ofAllanMyers was unveiled the Myers portrait. consciously references thosedifferences in Gladwell, whooriginally trained asapainter, 1 did thehonours. Glyn Davis, Myers’ friendandcolleague, and gallerist AnnaSchwartz. Professor attendance, aswell Gladwell, astheartist, friends from theBarandbeyond were in of theVictorian Bar. Myers’ family and subject. faceted, multi-dimensionalaspectofthe symbolising and reflecting themulti- engaged withthislocationwhilstalso the range styles ofartistic thathave stylistic willsurvey shifts andrepresent Streeton’sArthur impressionism. These sharper lightandabbreviated forms of Guerard’s rendering ofMtAbruptto the lighting anddetailofEugene Von describe atransition from theromantic This portrait willcombine forms to wroteAs theartist inMay 2020: Gallery Foundation in2018. Chernov AC QCfor thePeter O’Callaghan QC David Rosetsky photographed theHonAlex th *Siobhan Ryan isamemberofthe anniversary ofthefounding . Shaun Gladwell May 2020 . Art &CollectionsArt Committee Professor GlynDavis AC Anna Schwartz and Anna Schwartz and

P much—or nothing. How muchhinterland willAllanMyers reveal in any likeness? what hereveals. theatre ofacourtroom, there isadistance, areserve, amanwhocontrols carefully essentially private manpresent For, himself? despite thefame, thenecessary public are withfew left doubtsaboutthedomineeringpersonality ofPansy Wright. chamber, portrait, insisted onafull-length twice thesize ofallwhowent before. We though, knowing hispaintingwould eventually hangwiththeothers intheCouncil at Melbourneare three-quarter views, traditional for aninstitution.Onechancellor produce intimacyonaflatsurface, allow usto glimpsetheperson itportrays. is notjustaplausiblelikeness—it shouldconvey somethingofthesoul.Itmust a namerenowned far beyond themany circles inwhichhemoves. Queen’s Counsel, asuccessful entrepreneur, amajorbenefactor ofhishometown, to Australia andjointhisVictorian Barin1975. Whorose to become asenior a constant inhislife. a university where hewould study, lecture, romance andlive. Itwould remain College to begindegrees andlaw inarts attheUniversity where henow presides, circumstances inDunkeld, whoat18won acompetitive scholarship to Newman of theCouncil, thedistinguished chairofgalleries, institutionsandfoundations. of Melbournesince SirRobert Menzies chosenfrom outsideoftheexisting ranks achievements inthelaw, business, publiclife, thefirst Chancellor oftheUniversity collection today. Allan Myers AC QC,whoseportrait by ShaunGladwell theartist joins the achieved neithersilknorjudicialappointment. first Australian-Chinese whopractised withdistinctionfor decadesyet acknowledge silences too, suchasthefineportrait ofWilliam AhKet, Victoria’s capture andcelebrate thechangingnature oflegal practice inourstate. around us,onthewalls andintheroom, Peter [Jopling], you andyour committee first Crown Prosecutor andfour barristers were admitted to practice. Inthefaces This year theVictorian Barcelebrates 180years since—on thisday in1841—the Always that careful penetrating intelligence, watching himselfandothers, saying You canbecertain AllanMyers would notfollow thatpath—but how doesan Sometimes character forces itself ontheviewer. Allthepaintings ofchancellors How doesany portrait capture suchintricacyandrange? For a good portrait The young lawyer whowent onto studyatOxford, to teach inCanada,to return You willknow, too, somethingofhisjourney—the boy from themodest You willknow themany publicroles andhonours heldby AllanMyers, his Now thesewalls willincludeoneofthegreat fixtures ofthisproud institution, These portraits convey changinggenerations andgrowing diversity. They on theBar, Omittingtheformalities, thesitter andtheartist. asthey say: rofessor Davis haskindlyallowed VBNto reprint hisvery insightful reflections

VBN21 around town around around town

Nicholas Petrie How would you describe this readers’ Readers’ course in one word? around town around New-normal. What are your areas of practice? Digest Commercial and public. I come to the Bar having worked as a in these areas, in Melbourne, Darwin and London. TEMPLE SAVILLE, HADI MAZLOUM AND Highlight of the course? VERONICA HOLT A three-way tie between Kathleen Foley’s injunction session, Emrys Nekvapil’s technology session and Tim Goodwin’s n 6 May, 2021, 47 readers (20 women, diversity session. Each gave clear and 27 men) signed the Roll of Counsel, practical guidance on issues which are having completed the two-month readers' O likely to be important for readers in their course—which had a hybrid format of online/in- first few months and years at the Bar. person. Bar News committee members, Temple, Hadi and Veronica reached out to the readers, asking them to share some information about being able to type notes during themselves so that the Bar can get to know our online presentations also played to In his artistic statement, Shaun Gladwell generations including his parents, his as though rotating the image in his newest members as they embark on an exciting my strengths. makes clear he found Allan Myers siblings, his own family. Here is an image mind’s eye—to focus on the underlying and challenging time ahead. What are your areas of practice? fascinating and complex. The Museum of of connection, a man reminding himself geometry of the painting, the unexpected Common law and personal Contemporary Art has written that Shaun and us of his community. cues and invisible lines which draw the injuries. I have come to the bar Gladwell’s practice is characterised by a We might extend our horizon far beyond image together. having worked in all areas of "sophisticated dialogue with histories of that starting point, we might draw new In such moments you sense his personal injuries, most recently representation, in particular art history knowledge and connections into our lives, uncommon ability to grasp all the hidden asbestos and occupational and film." but a man who stands in his garden for a connections within a story—a skill which diseases. I look forward to For here, perhaps, is the surprise— portrait is telling us this context matters to must terrify opposing counsel in the welcoming briefs from a wide Allan Myers has chosen as his portrait him, as do the people, once and now, who middle of a trial. range of areas and can’t wait to artist one of the great practitioners of inhabit the space. And so this video in two parts brings explore new areas of law! video, famous for works which depict Walk around that garden, and there together context and art, a sense of place Luke Perilli What are your interests and a lone figure absorbed in a natural are reminders everywhere of the Myers and people, of images close and distant, Do you feel that you were able to hobbies (outside of the law)? background. Shaun Gladwell began his family and its predecessors, the deep of a man firmly grounded in a landscape learn well online? I am, at all material times career with Storm Sequence, in which the connections into western Victoria and but also living in his imagination, able After adjusting to working from (including before, during and after artist pirouettes on a skateboard by Bondi back to Ireland, the long story in which to weave disparate experience and home full-time during the Covid-19 games) an Essendon Bombers fan! Beach while storm clouds gather, the sea any individual is but a passing moment in knowledge into his sense of journey pandemic in the 12 months prior to If not at the footy you’ll find me on turns angry, and the stationary camera a landscape. It is a garden both wild and and self. commencing the course, I found it the tennis court, trying to surf or lens is slowly speckled and splashed as narrated, intended to endure and grow But a video offers another, powerful, easy to adapt to learning online. As running around with my groodle— the rain begins. with the generations. message about its subject matter. For I have less than neat penmanship, Rafa, named after Nadal. This video portrait is the first ever in the Inside that beautifully designed space unlike a two-dimensional painting, Victorian Bar collection. Like Storm Sequence there is superb art. This too influenced a video can be turned off at any time. it begins with a figure in a setting—which is Shaun Gladwell. His artist statement The images can vanish. It is, like our Julia Wang to say, not just a person but a person located speaks of Allan Myers the collector, lives, of the moment, understood to be Nicholas Baum Were you able to develop friendships/relationships in a very specific landscape. and the second stage of the video ephemeral. A video allows this "vastly What are your areas of practice? with the course being conducted mostly online? That place is the beautiful garden Allan steps toward verisimilitude. Its nod to complex individual", as Shaun called Commercial law, public law, and wills Yes—we've had various social catch-ups during the and Maria have built at the foot of Mt traditional portraiture is a tribute to the him, to disappear at will. The medium, and estates. course and there may have even been a readers’ Sturgeon. We then move to a carefully Australian and European masters in the as much as the content, tells us much What are you looking forward to most in karaoke night! controlled set of images that track toward Myers private gallery. about Allan Myers. joining the Bar? What are your interests and hobbies (outside of photograph exactitude. Again, form here signals something It is an honour therefore to unveil Having my own ready-made Harry Potter the law)? It is a clever commission because it is about Allan Myers. When you talk this video portrait—Allan Myers by costume for the next fancy dress party I’m Running, rogaining, singing, making (and eating) illuminating—a portrait expressing dual with Allan about any of the paintings Shaun Gladwell—a great addition to an invited to (or my nine-week-old’s first careers sweet treats. aspects of Allan Myers. in his collection, something interesting important collection, a celebration of the day, whichever comes first). What are you looking forward to most in joining The first is grounded, in place, in family happens. He can describe detail in the Victorian Bar and one of its finest. Long Why did you decide to become a barrister? the Bar? connections. For the garden in the video artist and the provenance of the work may this video, and these fine portraits, My handwriting is terrible, so I thought it would The interesting and challenging work, and the is Dunkeld, the town of many Myer but then often Allan closes his eyes— grace the work done in these chambers. be more efficient to try and make my point friendships. directly to the judge, rather than continuing to waste Post-It Notes. 22 VBN VBN 23 around town

time of great uncertainty, it helped Manu Choudhary difference in a positive way. It is one of Ella Zauner instil a (completely false) sense of Did the course meet your expectations? the best feelings in the world. Why did you decide to become calm and control by way of setting The course went beyond my What are your interests and hobbies a barrister? around town around up template documents and folder expectations. I thought it was very (outside of the law)? Because barristers get to do all the structures. practical and beneficial. I acquired I enjoy car racing, which I find is fun stuff. Highlight of the course? lifelong skills which has given me a lot an effective way to relieve stress. Favourite session in the course not My fellow readers, and the many of confidence for my practice. I participate in amateur events at circuits directly related to your intended presenters (judges, silks, junior Why did you decide to become such as Winton, Phillip Island, Sandown, area of practice? barristers) who were exceptionally a barrister? and Wakefield Park. The adrenalin you There were a lot of outstanding generous with their time and candid It is such a rewarding profession! You experience on track is exhilarating. The sessions, but my favourite might be in their insights. are often handling significant issues harrowing week you have just had will be the ‘critical software for a barrister’ in people’s lives and can make a big left behind. session with Emyrs Nekvapil—in a

Julia Nikolic Kate Lyle Monique Hardinge Highlight of the course? How have you managed to develop Why did you decide to become a Hands down, Emrys Nekvapil’s session on IT. your relationship with your mentor? barrister? I immediately bought an Adobe subscription. I have been fortunate to be I really enjoy the process of solving What are your interests and hobbies (outside of the law)? in chambers with my mentor, complex problems and have always love to be by the beach, so on the weekends I always try Helen Tiplady, during the online liked advocacy—my parents say I and get home to Torquay. Despite my best efforts, I’m components of the bar readers started arguing as soon as I could rubbish at surfing, so you’ll find me swimming, hiking or course. This bonus time in chambers talk! Coming to the Bar seemed like kayaking whenever I can. has allowed me to ask questions, a perfect fit. What are your areas of practice? seek feedback and meet other What are your interests and hobbies Primarily town planning! Although, having worked in and for barristers on the floor and has been (outside of the law)? state and local government across the past eight years, I am an unexpected upside of our course I love to travel but while that has been keen to also develop a broader administrative law practice. being mainly online. difficult in 2020 and 2021, I have kept What are your interests and hobbies busy by cooking and tending to my (outside of the law)? Liam McAuliffe fruit and vegetable garden. I enjoy running and cycling outside as What are your areas of practice? Highlight of the course? a refreshing change from office based Prior to coming to the Bar, I spent two Getting to know other Readers. work. I also enjoy spending time with years as a judges’ associate and five How have you managed to develop your my miniature dachshund—Snickers! years in commercial practice in London James Penny relationship with your mentor? What are you looking forward to most What are you looking forward to and Melbourne. I hope to build on this My mentor has also played a key role in my in joining the Bar? most in joining the Bar? experience and develop a commercial skills development—somewhat terrifyingly, The freedom of self-employment, oral I aim to develop a practice in and public law practice at the Bar. she has watched all my practice moot videos! advocacy and the collegiality of the Bar. commercial and public law and What are your areas of practice? Why did you decide to become I am looking forward to working Public and administrative law, quasi-criminal a barrister? on a variety of interesting Nadia Deltondo law and criminal law. I became a barrister for two main reasons, and challenging matters. I am If you could describe yourself in advocacy and self-employment. My Mum also looking forward to meeting three words, what would they be? started an IT company with others, which and working with many more Happy, driven and passionate. Lara O’Rorke grew from a small few to a large business. of the incredible members of the What are you looking forward to Highlight of the course? Self-employment has been something Victorian Bar. most in joining the Bar? The comedic double act, Justin Graham QC and the Honourable that I have always known growing up. Rising to the challenge, learning Justice Connock, and their role play in our pleading and I came to love advocacy at university, something new and developing the affidavit sessions. The readers are looking forward to seeing partaking in competitive mooting, where art of persuasion. their preview show at next year’s comedy festival. I was university champion two years in What are your interests and hobbies What are your interests and hobbies (outside of the law)? a row. I then worked as a (outside of the law)? I have two, which are inextricably linked—BodyFit gym, and which further entrenched my love of I enjoy playing classical music on my wining and dining at Melbourne’s institutions or newest/ the courtroom. beautiful piano, mastering the Italian trendiest offerings (see photo of a recent dining incident What are your interests and hobbies language and chilling out with my post-lockdown). (outside of the law)? “little people” who are my greatest What are your areas of practice? Motorcycling, snowboarding, soccer, achievements. All* areas of commercial law (*will take any brief!). I’m playing guitar, motorsports, scuba diving. looking forward to having a broad and varied practice.

24 VBN VBN 25 1 around town WBA FUNCTION AT THE ESSOIGN CLUB TO MARK THE RETIREMENT OF around town around Justice recall List dinners at men-only clubs, and senior barristers who genuinely thought 2 3 that women weren’t cut out to be barristers. Pamela put paid to that myth Pamela 5 01. The Hon Justice Michelle Quigley, Dr Kylie 6 Weston-Scheuber, Astrid Haban-Beer, the Hon simply by practising at the highest levels Justice Maree Kennedy, Georgina Costello QC of the profession. 02. The Hon Justice Kristen Walker 03. Chris Belyea, Kylie Evans, the Hon Pamela Tate QC, Pamela didn’t just focus on her own Elspeth Strong SC 04. Kateena O’Gorman, practice. She has said that her personal Tate Julia Wang 05. Kylie Evans, Dr Julie Debeljak, Anna Robertson 06. The Hon Justice Elizabeth aim was to try to ensure that women Hollingworth 07. Gayann Walker, Alison Umbers, barristers moved from the margin to JENNIFER BATROUNEY* Natalie Blok 08. Louise Martin, Diana Price, Susan Aufgang 09. Jess Moir, Alexandra Folie the mainstream. In that regard, she— 10. Alison Umbers, the Hon Justice Melinda together with others—has very much Richards, the Hon Pamela Tate QC, Jennifer star-studded function to mark the retirement of Batrouney AM QC, Gayann Walker succeeded. Justice Pamela Tate from the Court of Appeal was Justice Karin Emerton spoke of A organised by the Women Barristers’ Association. The 9 10 Pamela’s time on the Court of Appeal. room was abuzz with joyous anticipation for the celebration of She noted that Pamela was a demon 4 the WBA’s retiring patron and her enormous contribution to for hard work and an opinion leader on the legal profession. Chocolates and fresh roses adorned every the court. In her 10-plus years on the table and the drinks were flowing. court, she sat on more than 500 appeals, The speeches were kicked off by the Hon Rachelle Lewitan presided over hundreds of hearings AM QC—the first woman ever elected to Bar Council and the and wrote a great many thoughtful and founding convenor of the WBA. Rachelle described first meeting elegant judgments. No less than 97 of Pamela on 11 November, 1993, at the inaugural meeting of the those judgments have been reported— WBA in the marriage room of the Mint building. Pamela was a daunting achievement. pregnant at the time. One of the important concerns for the newly 7 8 Pamela has made important formed organisation was the right to retain rooms at Owen Dixon contributions to jurisprudence in a wide Chambers for some months after a baby was born. Rachelle said in advancing the cause for women in the of Pamela’s legacy, as a central aspect of variety of areas—in her preferred areas representation of women in the courts, and on the Bar Council that the message in those days was, “Go ahead, have your baby, law, and in advocacy. Michelle added Victoria’s legal system. of constitutional and public law, and and its subcommittees. good luck. But be prepared to lose your chambers.” that what she (and many others) most Kris noted that, during her seven specifically human rights, but also in In closing her speech, Rachelle observed that Pamela was the Pamela became WBA convenor in 1999. Earlier, in July admire and treasure is Pamela’s integrity, years as solicitor-general, Pamela the ‘bread and butter’ work of a state person who initiated the compilation of a directory of women 1998, the Victorian Bar Council had published a report on her quiet, sensible and empathetic appeared regularly before the High Court. appellate court: torts and contracts; barristers. Subsequently, the WBA made the radical suggestion the “equality of opportunity for women at the Victorian Bar”. counsel as a friend and colleague, her Perhaps the most significant High Court wills and trusts; tenancies and building that the directory be available on the Internet. Such a directory It commissioned this report at the request of the WBA from steady leadership and advocacy, and her case in which she appeared was the disputes; land use and revenue; crime would overcome the informal social connections and boys’ Associate Professor Rosemary Hunter and Helen McKelvie. It principled approach to all she does. constitutional challenge to the Howard and sentencing. To give an idea of the club privileges that could give the nod to fellow male barristers concluded that there were indeed barriers to women’s careers The (then) solicitor-general, Kris government’s Workchoices legislation. range of Pamela’s contribution, some rather than to women of equal or superior expertise when it at the Bar and these would not be overcome merely by the Walker QC, spoke about Pamela in That was a challenge brought by all highlights were identified: came to making recommendations for appearance work. The passage of time. Positive steps needed to be taken. Pamela her capacity as the first woman to be six states against the Commonwealth. Patient Review Panel v ABY1—whether Bar Council considered this such a good idea that it decided a was instrumental in working with the Bar Council to promote appointed solicitor-general for Victoria. Measured by the numbers of barristers, a registered sex offender was entitled to directory should be prepared for all barristers. Ultimately, this women’s integration at the Bar. She worked tirelessly, attending And only the second ever in Australia, it was surely one of the largest cases receive IVF treatment. became the online Vicbar “find a barrister” webpage. meetings with working parties, with clerks, and with the group after . ever heard by the High Court. There were MyEnvironment Inc v VicForests2— photos courtesy of peter bongiorno In the second speech of the night, Justice Michelle Quigley of people described as “opinion setters” at the Bar, in a series of Kris said that Victoria was very 39 barristers in three rows of Bar tables. the legality of regulatory instruments referred to her shared experience of taking silk with Pamela in meetings chaired by an external consultant. fortunate to have Pamela as solicitor- Pamela led a team of six barristers. permitting the logging of forests that December 2002. It was remarkable for the women individually Rachelle said it was clear to Pamela that many general. A particular achievement of Kris said that in her time as SG, Pamela were habitat for Leadbeater’s possums. and collectively. There were six women from Victoria women had indeed been marginalised at the Bar. Pamela’s time as solicitor-general was was a true mentor for younger women Bare v IBAC3—a watershed Charter appointed silk, a record at the time for any state in Australia: Pamela’s stated aim was that women barristers her work on the Charter of Human Rights at the Bar. She regularly selected women case concerning IBAC’s obligation to Frances O’Brien QC, now Justices Melanie Sloss, Michelle should move from the marginal to the and Responsibilities, as an adviser to the juniors. Naturally, she worked with the investigate a complaint of racial assault Quigley, Elizabeth Hollingworth, Maree Kennedy and mainstream. She encouraged consultative committee, later appearing WBA to advance the position of women during a police arrest. junior silk, Pamela Tate. the Bar Council to in Charter cases in the courts, and then of at the Bar, having arrived herself into Bauer Media v Wilson (No 2)4—the Michelle referred to Pamela’s enormous adopt procedures course sitting on Charter cases following an environment that was often hostile Rebel Wilson defamation case, in contribution to jurisprudence and to the profession, to ensure greater her appointment. The Charter will be part to women. Some of Pamela’s speeches which the Court of Appeal made it

Jennifer Batrouney 26 VBN VBN 27 The Hon Justice Tate The Hon Justice Michelle Quigley around town

onto the pages of the world’s premier person coming before the court as of women barristers appearing in the barristers and encouraging us to step entertainment sites. deserving of courtesy and respect. Court of Appeal through the simple forward and to flourish. A case identified by Karin as a Karin noted that, throughout her device of making female under- Justice Pamela Tate is, and has around town around personal favourite is Toll career, Pamela has often been the only representation apparent and thereby always been, a champion of women Enforcement v Taha,5 a decision arising woman in the room. She understands showing it to be problematic. in the law. Happily, she will continue from the threatened imprisonment of the forces that have made that so and Karin finished her comments to contribute to the development of an intellectually disabled man for has worked to change them, paving the by noting that Pamela steps up, in the law through her academic work. non-payment of fines. Pamela applied the way for other women. She has always both her professional life and in her We sincerely thank the Hon Pamela Charter’s rights to liberty, a fair hearing been aware of the need to support friendships. She is a thoughtful and Tate QC for her enormous and and equal protection of the law, all while and promote women in the law and generous friend and has been a wise enduring contribution and wish her all engaging constructively and helpfully with continued to do so in her time on the and compassionate judge, who will the best in this new phase of her career. the High Court decision in Momcilovic..6 Court of Appeal. be greatly missed on the Bench. * Jennifer Batrouney AM QC is Karin said that what is manifest in For several years, Pamela has Dr Kylie Weston-Scheuber, the convenor of the Women Barristers’ this impressive body of work is not only organised a mooting competition for WBA convenor during most of Association Pamela’s intellectual rigour, but her women barristers to help them develop Pamela’s time as WBA patron, noted 1 Patient Review Panel v ABY (2012) intellectual agility, her compassion and their skills as appellate advocates. that in her role as patron, Pamela 37 VR 634. eye for injustice and, above all, her deep Pamela was also responsible for has rounded out a long history with 2 MyEnvironment Inc v VicForests respect for the rule of law. Karin said initiating the court’s gathering of WBA. And far from being a mere (2013) 42 VR 456. 3 Bare v IBAC (2015) 48 VR 129. that Pamela has treated every appeal as statistics on appearances by women figurehead, Pamela has been a 4 Bauer Media v Wilson (No 2) (2018) important, every argument as worthy barristers, a practice which has likely 'hands on' patron, actively engaged 56 VR 674. The Hon Judge Rachelle Lewitan of her considered attention, and every made a small difference to the number in promoting the careers of women 5 (2013) 49 VR 1. 6 Momcilovic v R (2011) 245 CLR 1. The Hon Justice Tate and Jennifer Batrouney

The photo I mentioned used to hang on the wall directly Let me turn to a key benefit of having I would never have survived, let alone thrived, in any beside my desk where I would draft submissions for the High WBA Farewell empathy. Empathy can allow you to Court. I adhered to the fundamental guiding principle for a of these roles if it had not been for other women. draw upon the confidence of others. barrister: ‘know your tribunal’. I used to look up at that photo You can identify with others in the roles Dinner speech almost every day and test out my submissions on the judges. you aspire to. Of all the judges on the High Court Bench, For women barristers, this is so I was fortunate when I faced the so closely with Kylie Weston-Scheuber PAMELA TATE* radiated an air of moral superiority. He appeared not only important. It means you can be junior demands of being the solicitor-general on the Court of Appeal moot and dedicated and learned in the law but also rather above the stuff barrister and see yourself in the role of that I had Kris Walker frequently to assist other projects. y sincere thanks to the Women Barristers’ Association of mere mortals. He was someone who commanded deference. silk. You can be a QC and see yourself me in the High Court. This was in the I realised quickly that Kylie’s dedication for organising this glittering farewell dinner. It means His integrity could not be impugned. as a judge. days when, once the judges took their and commitment was tireless—perhaps M a great deal to me. Last year, I read the statement by the Hon , In my case, I can be a judge and seats, it was only seconds before one matched only by that of the current Thanks also to the star-studded cast of speakers we have just Chief Justice of the High Court, about the independent follow the example of the former knew which way the wind was howling. convenor, Jennifer Batrouney AM QC. heard from: Rachelle Lewitan AM QC; Justice Michelle Quigley; investigation that found that six former court staff members patron of WBA, the Hon Marilyn Kris and I enjoyed the shared experience I stand in awe of Jenny’s determination Kristen Walker QC, solicitor-general for Victoria; Justice Karin who were judges’ associates were harassed by Dyson Heydon. Warren AC QC, and remain committed of something akin to an extreme sport—it and energy. Emerton; and Kylie Weston-Scheuber of counsel. I feel very When I read about Heydon’s shameful sexually predatory to the legal profession when I retire from was intense and it was fun. We are fortunate to have the WBA touched by what they had to say. behaviour, I felt gutted. The media said it was an open secret. the court. I looked to Karin Emerton’s natural in Victoria. Long may it provide the I would like to draw together my remarks tonight under the It was not an open secret to me. I had looked up to him on I have drawn upon the confidence authority as a judge to assess how I environment for women to support theme of empathy. First, there is the negative consequence of the the Bench for seven years with respect for his intellect and of others. would feel if I went to the Supreme Court. and inspire each other to reach our lack of it and secondly, there is the positive benefit of having it. moral authority. I recall seeing Rachelle Lewitan speak Karin set an example and assured me career goals. One of the photos I have in my chambers is a photo of the I was shocked at the breach of trust to his victims, the legal at the inaugural meeting of WBA. I knew that I would love it. She was right. I hope always to be part of it. Bench I used to appear before in the High Court when I was profession, and the community—a breach of trust born from she was the first woman ever to be I would never have survived, let alone Finally, may I congratulate Justice solicitor-general for Victoria. During this time, there was a a lack of empathy. I was appalled that someone with such elected to the Bar Council. I was inspired thrived, in any of these roles if it had not Melinda Richards on agreeing to become stable core group of judges: Justices Gummow, Hayne, and a shameful lack of empathy could occupy a position at the by the understanding she had about how been for other women. I recognised that, patron of WBA as I stand down from that Dyson Heydon. apex of our system of justice. the Bar operates. It made me feel that especially for women barristers, it is so role. There is no doubt that Melinda will As it happens, Dyson Heydon was appointed a judge of the It is timely that the courts, parliaments, businesses and women have a place at the Bar. important to find your own personal perform the role with distinction. High Court a couple of months before I was appointed solicitor- other institutions are closely examining their procedures On taking silk, I learnt from Michelle confidence in the achievements of all * The Hon Pamela Tate QC is a former Judge general. As Michelle mentioned, there was a celebration of and protocols for dealing with and eliminating sexual Quigley and our ‘Class of 2002’ how to those women around you and to build of the Court of Appeal, Supreme Court Heydon’s appointment to the High Court at the same time harassment. In the case of the Victorian courts, as the Szoke adapt to the new role. Seeing Michelle confidence in other women. of Victoria. 1 as we took our bows in to announce that we had report has revealed, judicial officers must earn the respect assume the responsibilities of a silk with This lies at the core of an organisation 1 Dr Helen Szoke AO, Review of Sexual taken silk. Heydon reigned on the bench throughout my entire that the profession and the public afford to them by reason such ease—and vitality—made me feel like the WBA. It was the reason I agreed Harassment in Victorian Courts and appointment as solicitor-general. of their role. I could fit into the new role. to be patron. It was the reason I worked VCAT (March 2021).

28 VBN VBN 29 around town

CELEBRATING THE LIFE OF around town around Peter O’Callaghan

correspondence, a course of study for the Matriculation appearing for the plaintiff, I think I know him.” I said, Examination for entry into Melbourne University. Peter “He is a senior barrister, grew up in Horsham.” My client did well, entered the law course, lived a while at Newman said, “Yes, I remember him—a showy full forward. Mark JEFF GLEESON QC ADDRESS BY ALLAN MYERS AC QC College and later at the Shakespeare Hotel in North the ball on his chest and then wave it in the air for about our Excellency Melbourne, where he worked part time. Then articles a minute before missing the goal.” I said, “I think you remote ritual Other members of the Bar, ladies and with Brendon McGuiness, followed by a short time as a must have the wrong man!” was never gentlemen. solicitor, and then to the Bar. Peter undertook every class of work at the Bar. going to suffice Everyone here knew Peter O’Callaghan. The first time I met Peter he was established in silk. Licensing, town planning, workers compensation, for those who Each of us knew him differently. Four of Peter’s I was junior in a matter concerning construction of personal injuries, criminal (petty to murder—and wanted to celebrate the life of Peter sons are here this evening. They knew Peter provisions of the Land Tax Act. The provisions were remember he was Forsyth’s chosen counsel along J. O’Callaghan QC. So, we swallowed as none of us can have known him, and loved of meaningless and bewildering complexity. Merralls with Tony Howard when Forsyth was prosecuted), ourA sadness and tucked away our him, as did his grandchildren, three of whom pronounced the client’s case hopeless. Not surprisingly company, taxation in its many forms, trade practices, stories until we could share them are here this evening. Of them I ask, as I do of all of you, to accept my the solicitor passed the brief to an advocate who believed administrative and constitutional law, boards of enquiry, in person at a splendid dinner to remarks about Peter charitably, as the well-intentioned observations the client could succeed. That was Peter, maybe a day royal commissions, circuit, County Court, Supreme Court, honour Peter’s memory. It was of one who loved him and called him a friend. before the hearing. Sundberg, the softly-spoken oracle High Court. He was amongst the best of his day at the held at the Essoign Club on First, his portrait. The portrait is an image of Peter as I never knew for the Land Tax Commissioner, had command of every Bar. He could turn his hand to everything. Lay clients and 25 February 2021. him. The hands are good. The jowls, and what Villeneuve-Smith called nuance and subtlety. Peter Murphy was the judge. liked Peter because he always fought hard for The room was full of friends and "the pumpkin head", are good. But the expression is stern and sad. The Under O’Callaghan’s wily guidance Peter Murphy was his client’s cause. colleagues and it was wonderful that Yforehead carries a scowl. The eyes are judgmental. That was not Peter, soon hostile to Sundberg’s client and Peter was a great circuiteer, Peter’s sons and extended family even in old age. Peter loved people. He was first and foremost interested advocacy. O’Callaghan’s client had an especially at Ballarat and were also able to attend. in what all people are most interested in, that is, other people. unappealable victory. Warrnambool. His regular opponents Allan Myers AC QC and Susan Peter grew up in a loving family in a country town before Australians Soon afterwards, I had a brief were McPhee, Villeneuve-Smith, Crennan AC QC both spoke with had to cope with affluence. He relished the everyday life of a child and as Peter’s opponent. The case was Barry Dove and Frank Dyatt. In warmth, respect and great humour young man in a small community in which one could enjoy the security honourably compromised at the last Melbourne, lunch was at the Latin in about Peter’s life, his career, his of being known as the son of good people and in which the values of the moment ‘without troubling the judge’. the days before the Essoign. Sunday humanity and his wisdom. society were not contested and were passed confidently from parents (Remember those days, when the was for ‘paperwork’ with a ham Although it can be safely assumed to child. judges had not read the pleadings, sandwich and a bottle of beer. A taste that nobody among the crowd quite He learnt early who he was and what was right to do. His whole life, as which counsel did aloud to the court of the life on circuit is captured in a matched Peter’s talent for delivering I knew it, was lived according to the values which he learnt as a boy. The in opening the matter, and the judge ballad by Villeneuve-Smith entitled a beautifully crafted anecdote, many values were indisputably Christian and Catholic but also tolerant and made up his mind on the basis of Random Reflections of a Nisi Prius Trial spirited attempts were undertaken egalitarian, as was the community in which he grew up. what was said in court?) Afterwards I Holden at the Diggings at Ballarat in the on a night of which Peter would Peter’s father was a mechanic who conducted his business from the was taken by the managing director Colony of Victoria. I quote a little that have warmly approved and in backyard of the family house. Peter worked with his father until Mark of my client to lunch at Fanny’s. refers to Peter. which he would have dearly wished O’Brien, a local doctor, persuaded him to undertake, at Taylors College by On the way there he said, “That Peter served the Bar in many other to participate. fellow Peter O’Callaghan, who was ways. He was chairman of the building

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committee to erect Owen Dixon Peter never accepted judicial raconteur. He had a wide knowledge West. In those days, what would appointment, though the Federal (or at least love) of music, literature now fall to be done by a swarm of Court was offered to him. He said and film. He was the epitome of a paid staff of the Bar and numerous he could not afford it. That may good man. He did not speak ill of consultants was mainly undertaken well have been true. His generosity anyone and took criticism with a by members of the Bar without of spirit and optimism led him shrug of his shoulders. Peter relished remuneration. Countless weeks of into numerous unsafe financial life in all its ages, from boyhood Peter’s time was spent on Owen transactions, which he called to old age. He enriched the life of Dixon West and as a director of ‘investments’. No doubt the real everyone he met. He was a truly good Barristers’ Chambers Limited. reason was that he didn’t want to give man whose decency and discretion Many barristers who found up the life of a barrister to become a remain a model for all. Horace themselves in difficulty turned to judge. Of judges he often said, “They Walpole wrote, “For a man who Peter for help. I recall, in particular, all turn out to be bastards, it just feels, life is a tragedy; for a man who ICF Spry at the time of the scandals takes the good blokes a bit longer.” thinks, life is a comedy.” Peter thought of the Toorak Road Tram and the In 1996, Peter was asked to accept and felt about the events of life and Circuit Court, around 30 associates from the spray paint on the pavement outside an appointment as the Independent in his generous and sweet character two courts, barristers and solicitors. the BHP building at the corner Commissioner to inquire into and reconciled its conflicting elements, Barefoot Bowls This event usually takes place in February, of William and Bourke Streets. advise the Catholic Archbishop of as do very few. but was postponed due to the snap five-day I was engaged with O’Callaghan Melbourne with respect to allegations The lives of Peter and me lockdown. Summer clothing and bare feet gave for Spry before the Ethics Committee. of sexual misconduct within the intersected in many ways. Outside the starts off 2021 way to puffer jackets and socks, but there was There were unsavoury aspects archdiocese of Melbourne by persons Bar, life was always better with Peter no shortage of warm smiles and embraces as of the matter. They need not be with authority in the church. This around. One last story. After Jennifer in style our family law colleagues were able to freely mentioned, save for one. At the was a job no one would wish to do, died, Peter often came to dinner at socialise with each other once again. The same time as the ethical issues but Peter accepted the community our house. At a certain time, our then judges’ associates attended this year’s event were in contest, Spry, led by McPhee, responsibility and undertook the almost two-year-old granddaughter, CAROLINE PATERSON as guests of the Family Law Bar Association. was one of my opponents in a work continuously for more than 20 Grace, was with us; she saw ‘Pete’ This was our way of thanking them for their large arbitration. Peter, Bill Kaye years. In doing so, he served, with on many evenings sitting at the n Friday 23 April, 2021, the Annual extraordinary efforts in 2020 in supporting and Tony Murray were the compassion, those who have suffered table always at the same place. One Flagstaff Bell barefoot bowls not just their judges but the profession as a arbitrators. While taking Peter’s as a result of sexual misconduct morning she came down to breakfast, Oevent, headlining the return to in- whole, in adapting to and managing online help (and unbeknown to McPhee) in the Catholic Church. Peter was looked at ‘Pete’s’ seat and said, “Pete person social activities for the Family Law court hearings. Spry, led by Bennett of the Sydney subject to entirely unfounded and not here. Has Pete gone?” Bar Association, was held at Melbourne The Bar and Bench team prevailed over the Bar, was formulating a claim of unfair criticism, particularly by Yes, he has. Sadly for us. But how City Bowls, just a stone’s throw from the Solicitors 11–7 and the trophy will be displayed bias against Peter in relation to the McClellan the Royal Commissioner, would he have coped with Eddie Commonwealth Law Courts building. That by Judge Carter in her chambers until next arbitration. When Peter had saved for the work he undertook as the dethroned at Collingwood and the afternoon there had been a ceremonial sitting year—a fantastic achievement given that her Spry’s skin (for the time being) and Independent Commissioner. This restrictions of the age of coronavirus, to welcome the Family Law Bar Association’s Honour revealed that she has never before Spry’s duplicity was revealed, Peter criticism was very hurtful to him. some of which the High Court, beloved and dedicated Secretary, Judge captained a sporting team of any kind, let alone shrugged his shoulders, made a Peter is remembered as a decent, just yesterday, justified by reasons Jennifer Howe as a Judge of the Federal Circuit been interested in doing so! self-deprecating remark and got compassionate, wise and just man which authorise the destruction of Court of Australia. The bowls was attended The Flagstaff Bell will be held again in on with the next matter. in and out of court. He was a great our Federation. by 180 guests including judges of the Federal February 2022.

32 VBN VBN 33 news and views

These reports confirm that the prevalence of sexual practice at the Bar, or have witnessed someone being harassment in Australian workplaces and in the sexually harassed. Sexual legal profession sits stubbornly at a rate where So, I propose we walk together through a case news and views news between a quarter and a third of women report study, set out below. This example offers the benefit they have experienced sexual harassment at work of permitting us to flirt with the warm glow of News Harassment: in the preceding five years. smugness that may come from telling ourselves: By way of example, the statistics in the 2018 report “That could never happen here. So Sydney.” IT’S STILL HAPPENING Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Or is it? You be the judge. &Views 1 Harassment in Australian Workplaces are as follows: Council of the Bar Association RACHEL DOYLE SC » 39% of women and 26% of men reported having v EFA [2021] NSWCATOD 216 experienced sexual harassment at work in the The New South Wales Bar Association brought an preceding five years;2 application for disciplinary findings and orders » 23% of women (and 16% of men) in the Australian against a barrister, EFA.7 A dinner was held in July Houston we have a problem During the same period, several reports were also workforce reported they had experienced some 2017 at Jones Bay Wharf as part of the New South o those who say (or think) that sexual released which are specific to the legal profession: form of workplace sexual harassment in the Wales Barristers’ Clerks Conference. Attendance at harassment does not happen at the » Victorian Bar, Quality of Working Life Survey: Final preceding 12 months. Victorian Bar, or that it doesn’t happen Report and Analysis, October 2018. Lest it be thought these statistics drawn from a often, or doesn’t happen any longer— » Victorian Legal Services Board and Commissioner, nationwide survey are skewed by the inclusion of I need to set you straight. Sexual Harassment in the Victorian Legal Sector: 2019 rogue industries where sexual harassment is rife, There have been many reviews Study of Legal Professionals and Legal Entities, 2019. the outcomes reported in relation to the inquiries conducted in relation to sexual harassment over the years. » International Bar Association, Us Too? Bullying and and reviews pertaining specifically to the legal The reviews and reports published since 2018 in relation Sexual Harassment in the Legal Profession, 2019. sector include the following: to the prevalence of sexual harassment in Australian » Law Council of Australia National Action Plan to Reduce » The Victorian Legal Services Board and workplaces include the following: Sexual Harassment in the Australian Legal Profession, Commissioner, Sexual Harassment in the Victorian » Australian Human Rights Commission, Everyone’s December 2020. T Legal Sector: 2019 Study of Legal Professionals Business: Fourth National Survey on Sexual Harassment » Dr Helen Szoke AO, Review of Sexual Harassment in and Legal Entities, 20193 reported that 36% of in Australian Workplaces, 2018. Victorian Courts: Preventing and Addressing Sexual legal professionals reported having experienced » Australian Human Rights Commission: Respect@Work: Harassment in Victorian Courts and VCAT, Report and sexual harassment in the profession (61% of Sexual Harassment National Inquiry Report, January 2020. Recommendations, March 2021. women respondents and 12% of men). In addition, » Commonwealth Government: A Roadmap for » Report by the Equal Opportunity one in four legal professionals reported having Respect: Preventing and Addressing Commission to the Attorney- experienced sexual harassment in the legal sector Sexual Harassment in Australian General for , within the preceding 12 months, and 57% within Workplaces, the Australian Review of Harassment in the preceding five years.4 Government’s Response the South Australian » The Victorian Bar, Quality of Working Life Survey: to Respect@Work Report, Legal Profession, Final Report and Analysis, October 2018 report 8 April 2021. April 2021. revealed that 16% of women and 2% of men at the Victorian Bar who responded to the survey reported that they had experienced sexual harassment in the year preceding the survey. When asked the same question referable to the previous five years, the reported rate for women went up to 25% (and, the dinner was restricted to clerks, barristers and curiously, down to 1% for men).5 other guests invited by the clerks. EFA, a barrister, attended the dinner. Barrister A, a friend of EFA, Keeping it real was also in attendance, seated at a table with people The statistics might leave you equal parts outraged including staff of his clerk, one of whom was and cold. These disembodied numbers do not shed a female junior clerk, named H. much light on what is actually happening in the legal Just before 11pm, barrister EFA approached the profession, in law firms and at the Victorian Bar. table where barrister A and junior clerk H (whom Well, I have read the surveys and the reports. EFA had not ever previously met) were seated. I have read some of the decisions handed down Within the sight of the junior clerk H, and others at by our courts, tribunals and disciplinary bodies in the table, the two barristers EFA and A commenced relation to sexual harassment in the legal profession. to perform what the Tribunal later described as a I have been sexually harassed (when a very junior “ritualised greeting”. practitioner). I have listened to people who have told These two wags apparently had a habit of greeting me that they have been sexually harassed while in each other in the following manner:

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As he approached the table, EFA The Tribunal readily accepted that this embrace was conducted in a G of the ‘group hug’ said he had a at the dinner table, which of course is » Bystanders: Why did no one else gestured to barrister A, sticking up EFA and A are good friends and that manner which celebrated both their general recollection of the dinner, unlikely. Further, applying the label see or hear what happened that the middle finger of his right hand. their interaction appeared to be “a incredible friendship and their but believed he was focused on his “horseplay” risks minimising the night? How embarrassed was news and views news A raised his hands to cover his face, private joke between them.”9 The mutual admiration for each other’s conversation with F at the time and event as a joke gone wrong, rather everyone when it became clear his right hand behind his left hand. Tribunal’s findings of fact include a brilliant sense of humour. did not notice the incident.26 than maintaining sufficient focus on the entire thing had been caught He then moved his left hand to reveal careful conclusion that barrister A EFA and A then moved toward You may wonder then how the the fact a barrister has just simulated on camera? that the middle finger of his right hand was amused throughout most of the barrister G, who was still seated at Tribunal was able to analyse the oral sex with one person, then turned » Excuses: Those who engage in was raised toward EFA. A raised his incident: “At no stage does he look the table. The three barristers EFA, events with such a granular level to a woman he has never met and sexual harassment continue to hands to his face again, the left hand uncomfortable. He did not suggest A and G then had a group hug. H of detail? said “suck my dick” while “lightly” minimise their conduct and rely covering the right hand. A moved in his affidavit, or his evidence, that looked around and then got up and Well, you’ll love this bit: the entire pushing her head. heavily on the same short list of his left hand to the left and dropped he felt uncomfortable”.10 Indeed, said walked away. The entire interaction thing was captured by security The Tribunal concluded by excuses, which typically include his right hand to his chest, with the the Tribunal the “brief simulation of had occupied two minutes.17 cameras. The Tribunal’s reasons describing EFA’s conduct as variations on these themes: It was middle finger raised and directed at oral sex” appeared to be, “a ritualised H went outside and found W, disclose that the CCTV footage follows: poorly judged, vulgar and just a joke. It’s just my sense of EFA, who was still approaching. EFA greeting which, in part, parodied oral who is the clerk of the Chambers from two cameras was viewed by inappropriate. The Tribunal also humour. She didn’t get the joke. walked towards A, who again covered sex”. in which she was employed. She the Tribunal several times, played described his level of intoxication I was drunk. his face with his hands, and then Thus, the Tribunal was able immediately recounted to him what at real time speed, in slow motion, as inappropriate at a function » Alcohol: Is it enough to say that uncovered his right hand by moving to conclude that what had had happened. W’s evidence to and at times frame by frame.27 connected with the practice of the you were drunk and can’t recall? his left hand, revealing that the middle unfolded between EFA and A was the Tribunal included that H had They must have had fun with that. l a w. 30 The Tribunal concluded that Or should barristers be more finger of his right hand was up, inappropriate sexual conduct, appeared visibly shaken, and her The Tribunal readily found that EFA’s conduct was discreditable to careful about how much they drink a gesture clearly directed to EFA. but was not a sexual advance. hands were trembling.18 the words “suck my dick” said by a barrister and constituted conduct at functions attended by those A smiled at EFA.8 The Tribunal also concluded that H made a statement four days barrister EFA to clerk H possessed likely to bring the legal profession in the profession and those who the interaction “was clearly not after the dinner, on 25 July, 2017.19 a sexual character and were into disrepute, and thus was a support our profession? For anyone having trouble decoding Presumably in response thereto, inappropriate conduct towards a contravention of the Legal Profession » Apologies: Is there any value in an the Tribunal’s stilted prose and the H had appeared visibly barrister A sent her a written apology clerk previously unknown to him in Uniform Conduct (Barristers) Rules apology in which the protagonist heavy-handed use of pseudonyms, it 31 shaken, and her hands on 3 August, 2017. In it, he said that the context of the barristers’ clerks’ 2015, Rules 8(a) and 8(c). While says sorry, but at the same time might be easier to picture the scene while he did not recall the incident, dinner.28 But, said the Tribunal, those contraventions were found to says they cannot recall what thus: the two pranksters (barristers were trembling. he could recall “horsing around” with while this constituted inappropriate constitute unsatisfactory professional happened, but nevertheless feel EFA and A) are friends. During the barrister A.20 sexual conduct, it was not a sexually conduct,32 they were determined confident asserting it was just dinner, they gave each other the In the hearing at the Tribunal, inappropriate advance or an advance to be not sufficiently serious to a joke? middle finger. appropriate at a barristers’ clerks’ H gave evidence and was cross- of any kind.29 The Tribunal reached constitute professional misconduct.33 But wait—you have to understand: dinner, even late in the evening, examined by senior counsel for that conclusion because it found The parties have been ordered to It’s not my problem they did it in a really funny way. They and had the potential to offend EFA. The Tribunal observed that as follows: provide further materials in relation When the topic of sexual harassment coyly shielded the raised middle onlookers”.11 Hmmmm. Do you think? H’s communication style was “not to appropriate orders in the matter. is raised among groups of barristers, EFA was not actually inviting H to finger with their other hand. Then, But here’s the kicker. altogether clear or precise”.21 In I often hear variations on the have oral sex with him. It seemed, for maximum comedic effect, each After a brief conversation with addition, there was the difficulty that Audience participation theme that we are self-employed rather, from the CCTV footage, that he of them pulled back the “shielding” barrister A, EFA then moved and in her statement and evidence she The decision in Council of the New professionals who can and should was extending to her an abridged echo hand to reveal their raised middle stood between junior clerk H and had suggested that EFA had moved South Wales Bar Association v EFA look after ourselves. In other words: of the greeting he had offered to A. He digits! I am sure you will agree with A. It is important to understand that her head backwards and forwards neatly throws up for consideration it’s not a problem, or it’s not my was including her in the horseplay he had me that this is hilarious. Laugh? at this point, EFA was still standing, towards his crotch, when in fact his questions including the following: problem. engaged in with A. It was very poorly I nearly cried. and A and H were both still seated at crotch was “entirely behind and to » Sexual conduct: What is a I disagree. It is your problem, and it’s judged, doubtless on account of EFA’s On completion of this touching their table. EFA bent from the waist the right hand side of H at the time”.22 sexual advance? What is sexually our problem. significant level of intoxication. EFA greeting ritual between two good a little and reached out with his left In short, the Tribunal concluded inappropriate conduct? First, in a number of failed to take into account H’s likely friends, EFA then stood near barrister hand to the back of clerk H’s head. that H appeared to have conflated » Humour: What is a joke? Whose circumstances, barristers are covered feelings of anger, embarrassment A, who remained seated. As if the EFA, still behind and to the right aspects of EFA’s oral sex simulation sense of humour matters? In EFA, by or affected by the operation of the and humiliation. Using the words of middle finger pantomime had not of H, touched H’s head with his left with A with what he subsequently why did the barristers find it funny, Sex Discrimination Act 1984 (Cth) the Application, EFA’s conduct was been funny enough, this is when hand and “lightly pushed”12 her head did to her.23 The Tribunal concluded but the clerk did not? For another and the Equal Opportunity Act 2010 “sexually inappropriate conduct”(or, these guys really got started. EFA, with sufficient pressure that her head that while H was mistaken about riff on the theme of “it’s just my (Vic.), both of which render sexual more accurately, “inappropriate sexual while standing, took the back of A’s involuntarily moved forward once some aspects of the incident, this sense of humour”, see Council of harassment unlawful in the context conduct”), but it was not “a sexually head. EFA then moved A’s head and then back once,13 while at the did not mean her evidence could not New South Wales Bar Association v of employment relationships. Many inappropriate advance”or any kind of forwards and back, towards and same time he said to her: “suck my be relied upon for other aspects.24 Raphael [2021] NSWCATOD 44.34 of us are employers of personal advance at all. [emphasis added] away from EFA’s crotch several times. dick.” 14 H had a shocked look on her No other witness was able » Culture: What conduct is assistants, research students and In other words, their next move was face. She did not speak 15 to give a direct account of the With respect, the Tribunal seems to appropriate at a dinner attended book keepers. Those legislative to perform a hilarious simulation A stood up; he and EFA hugged.16 incident—either because they have gotten a little distracted by an by professionals who work regimes apply to us directly as of oral sex. Junior clerk H saw this While this part of the event is not were intoxicated or because their analysis of whether EFA was actually together, and by those who employers: it is unlawful for us to performance. described in detail, I assume that attention was elsewhere.25 Barrister inviting H to perform oral sex on him support their practices? harass our employees. If a barrister

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Surely all barristers want to practise at a Bar, on a list disrepute. This, in turn, may be found of the profession and leaders of the Courts and VCAT, Report and not put up with any form of wrongful and from chambers that make it clear sexual harassment to constitute unprofessional conduct community on this topic? I note that Recommendations, March 2021, Chief conduct in our courts or VCAT. There under the rules. in response to the report published Justice Ferguson said the following: will be zero tolerance for sexual news and views news of anyone will not be tolerated? Third, quite apart from the law harassment.39 by Dr Helen Szoke AO, Review of Sexual harassment is harmful, and the rules, I ask this: surely any Sexual Harassment in Victorian unlawful and wrong. It goes against If it’s good enough for the courts, employs more than one person, it is does this matter? If you or another barrister would aspire to best practice? Courts: Preventing and Addressing everything our justice system is built I suggest it’s not only good enough also unlawful for those employees barrister in chambers subject a Surely all barristers want to practise at Sexual Harassment in Victorian on. I want to make it clear we will for the Bar: it’s a no-brainer. to sexually harass one another.35 As person working on or visiting your a Bar, on a list and from chambers that an employer, we are also susceptible floor in discharge of their work make it clear sexual harassment of to vicarious liability if we do not obligations to sexual harassment, anyone will not be tolerated? 1 The AHRC National Survey was 19 At [9]–[10] barrister entered a conference room take reasonable steps to ensure our their employer may come knocking Barristers do not and cannot conducted in each of the years 2003, 20 At [17] occupied by the junior solicitor who was 2008, 2012 and 2018. The 2018 National on the phone. He made a reference to employees and agents do not engage on your door when a complaint is operate as an island. We share Survey was conducted both online 21 At [46] the wedding ring she was wearing and in sexual harassment against their made. You may find yourself the chambers with other counsel. We and by telephone with a sample of 22 At [43] said, “Won’t your husband get jealous co-workers.36 principal witness in the proceedings have landlords in common. We over 10,000 Australians. The survey 23 At [39], [45] [49] because we’re spending so much time instrument and the methodology used together? He will think something’s 24 At [47] In addition, we practise in the brought by the complainant against sometimes jointly employ others. to conduct the 2018 National Survey going on.” She became upset, he placed same physical space as people who their employer—either because you We work together on cases (both received approval from the Human 25 At [48] his arm on her shoulder for between are employed by others. Employees perpetrated the sexual harassment, together in teams and as opponents). Research Ethics Committee at the 26 At [21]–[22] 10 and 20 seconds and kissed the top : see report of her head saying, “Don’t worry you 27 At [23] of others in our orbits include the or because you witnessed it happen, Our chambers are a place where page 12. poor thing.” The barrister variously 28 At [58] personal assistant employed by or because you did nothing to stop it. solicitors come to meet with us to 2 The most common forms of sexual described his conduct as “attempted another barrister on the same floor, Second, as barristers we are bound work on cases. Our chambers are harassment reported were offensive 29 At [58] chivalry”, without “the slightest sexual aspect to it”; “a misguided attempt to the staff of the clerks’ offices who by the Legal Professional Uniform also places where Bar readers are sexually suggestive comments or 30 At [76] jokes; inappropriate physical contact console a younger female solicitor”; 31 See EFA at [81]. Rule 8 provides: visit your chambers, and employees Conduct (Barristers) Rules 2015. Rule mentored and where law students and unwelcome touching, hugging, “not to be taken as anything other than General of the Bar Council Office and BCL 123 provides that a barrister must not gain experience in the profession. cornering or kissing. intended self-deprecating humour”. In A barrister must not engage in conduct similar vein, his character referees said with whom you interact. This cohort in the course of practice, engage in Why wouldn’t a group of 3 Two surveys were conducted as part which is: he was eccentric and old-fashioned also includes the solicitors employed conduct which constitutes: self-employed professionals who of the study: a practitioner survey and (a) dishonest or otherwise discreditable with an unusual sense of humour: a management practices survey. 2,324 to a barrister; see at [35]–[36] and [46]–[50]. The by firms who visit your floor. (a) discrimination; practise in the same chambers people took part in the practitioner (b) prejudicial to the administration of Tribunal accepted that the barrister’s 37 survey. The management practices For each of those people, your (b) sexual harassment; or adhere to a shared view that in justice; or remarks were intended to console and 38 survey (sent to principals of Victorian chambers is their workplace, or is a (c) workplace bullying. our profession, in our chambers (c) likely to diminish public confidence lighten the mood, but also said that, law practices) gathered responses from viewed objectively, they had sexual location they are obliged to attend As the decision in Council of the New and in the workplaces of those 259 people. in the legal profession or the administration of justice or undertones and they involved an overt in the course of performing their South Wales Bar Association v EFA who support our practices, sexual 4 Report of the Victorian Legal Services otherwise bring the legal profession act of physical intimacy: see at [23]. The Board and Commissioner Sexual work. Those other persons and demonstrates, sexually inappropriate harassment will not be tolerated? into disrepute. barrister admitted that the physical their employers are bound by (and conduct may be found to constitute It seems obvious to me that the Harassment in the Victorian Legal conduct constituted unsatisfactory Sector, 2019 at page vii. 32 See EFA at [81] and [84]. The Legal professional conduct. The disposition protected by) the laws which render conduct which is discreditable to Bar and each of our chambers ought Profession Uniform Law defines 5 Victorian Bar, Quality of Working Life of the matter included a reprimand unsatisfactory professional conduct sexual harassment unlawful. Why a barrister, or to be conduct which to make it clear that in addition to Survey: Final Report and Analysis, and an order that the barrister undergo in section 296 as conduct which October 2018 at pages 16 to 19. The counselling. brings the legal profession into the law and the rules, we are all includes “conduct of a lawyer Quality of Working Life Survey was prepared to adhere to policies occurring in connection with the 35 See sections 28A and 28B of the Sex sent in June 2018 to 2160 Victorian Bar practice of law that falls short of Discrimination Act 1984 (Cth); Equal designed to minimise the risk of practising certificate holders and 856 the standard of competence and Opportunity Act 2010 (Vic.), Part 6. valid responses were returned (40%). sexual harassment occurring, to diligence that a member of the public 36 See subsection 106(2) of the Sex support those who endure it, and 6 A decision of the Occupational Division is entitled to expect of a reasonably Discrimination Act 1984 (Cth). Equal of the Civil and Administrative Tribunal to deal with the behaviour of those competent lawyer”. Opportunity Act 2010 (Vic.), sections 109 of New South Wales. and 110. who perpetrate it. 33 See EFA at [81] and [83]. The Legal 7 A non-disclosure order was made to Profession Uniform Law defines 37 In the rules, sexual harassment means More profoundly, humans who protect the identity of the complainant; professional misconduct in section sexual harassment as defined under share the same physical space often the terms of that order also cover EFA. 297. The section is not repeated in the applicable state, territory or federal need to establish rules to guide 8 Council of the New South Wales Bar full here. It suffices to note that the anti-discrimination or human rights Association v EFA [2021] NSWCATOD provision invokes the touchstones of legislation. So, this will take you back to and regulate the way in which we 21, at [28] unsatisfactory professional conduct section 28A of the Sex Discrimination which involves a substantial or Act 1984 (Cth) and its cognate provision can share that space harmoniously. 9 At [52] For goodness’ sake, I know of some consistent failure to reach or maintain section 22 of the Equal Opportunity Act 10 At [56] a reasonable standard of competence 2010 (Vic.). chambers where you would need 11 At [56] or diligence and conduct (whether 38 In the rules, workplace bullying means occurring in connection with the to devote 10 minutes to reading 12 At [44] unreasonable behaviour that could the rules that apply to stacking the practice of the law or not) which would reasonably be expected to intimidate, 13 At [44] justify a finding that the lawyer is not dishwasher. So let’s also make sure degrade, humiliate, isolate, alienate, 14 At [49] a fit and proper person to engage in or cause serious offence to a person that our chambers’ policies also 15 At [31] legal practice. working in a workplace. provide direction on not sexually 16 At [32]- [34] 34 In that case, the Tribunal made findings 39 https://www.supremecourt.vic.gov. in relation to a barrister and a junior au/about-the-court/review-of-sexual- harassing one another. 17 At [32]- [34] solicitor who were opposed in Supreme harassment-in-victorian-courts-and- I will go further: why would 18 At [11] – [12] Court proceedings during June 2017. vcat barristers be reluctant to be leaders They had not previously met. The

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occasioned by necessity to become A 2017 study by the group Council suggests that before current entrenched without first considering Transform Justice on the impact practices become entrenched, further news and views news their impact on the quality of our of videolinks in UK courts found analysis should be conducted with justice system. that “virtual technology inevitably particular regard to the “practical The rapid proliferation of degrades the quality of human implementation of technology ‘virtual hearings’—described in interaction”and that “nuances may be in the court and tribunals, access AUSPUBLAW as a ‘breakneck undetected, misunderstandings may to justice, and maintaining trust in transition’—is unusual for a go unnoticed more easily”.4 Whether the judiciary”.8 profession which is more comfortable or not such findings are applicable The use of technology in courts is with incremental change.1 In the to the current state of Victorian not a new issue for the judiciary. In absence of a public health emergency, courts, the nature of the pandemic the case of Butera, the High Court such profound changes would has been such that, without online referred to the importance of the ordinarily be phased-in carefully hearings, the administration of justice “atmosphere”that can be created after widescale consultation. in this state would have ground to during the giving of oral evidence Back in 2009, the UK Ministry of a shuddering halt. in court: Justice launched a pilot program There have been many public allowing defendants to plead guilty statements made regarding the The adducing of oral evidence from in selected Magistrates’ courts while shift to online hearings. Notably witnesses in criminal trials underlies appearing on a videolink from a the President of the Victorian Bar, the rules of procedure which the police station. The pilot was designed Christopher Blanden QC, advised law ordains for their conduct. A to achieve greater efficiency, but members of the Bar that he found witness who gives evidence orally difficulties with the program were it “disappointing” to hear that some demonstrates, for good or ill, more soon identified by its participants. barristers had declined to physically about his or her credibility than a Some solicitors refused to take appear in court on the basis of witness whose evidence is given in part in the pilot because they felt documentary form. [...] Oral evidence it placed them in an impossible In the absence of a gives to the trial the atmosphere which, though intangible, is often position, having to choose between public health emergency, accompanying their clients to provide critical to the jury’s estimate of the support or attending at court to such profound changes witness.9 better participate in proceedings. In would ordinarily be More recently, in Cardinal Pell’s response to the program, solicitor phased-in carefully after proceedings, the Court of Appeal Robin Murray noted that the process was asked to consider the validity of left defendants isolated and without widescale consultation. an arraignment that was broadcast the support of family or friends who to a jury via videolink. On appeal, would otherwise attend, stating “I convenience.5 In response to this it was submitted that because the think it is an isolating feature—the statement, other members of the arraignment took place with the fact that you are almost taking part Bar have highlighted the flexibility accused and the jury in different How remote? in a remote video game. It rather of remote appearances, particularly rooms, the trial was rendered a depersonalises the whole process.”2 when juggling family responsibilities “nullity” due to the fundamental Similar comments were made or other commitments.6 Videolinks and justice in Victorian Courts irregularity of the trial process. regarding the pilot by the director The Law Council of Australia Justice Weinberg noted: of human rights organisation Justice notes that while courts have adapted TOM BATTERSBY Roger Smith, who noted that “virtual quickly to the pandemic, virtual …there are older authorities which courts” undermined the gravitas of hearings are not always effective suggest that the term ‘present’, in a the judicial process: substitutes for physical attendance, statutory context, should ordinarily While the sentencing process has ince March 2020, courts off, participants in court are still most particularly when dealing with be interpreted as ‘physically present.’ many faults one of its strengths is that in Victoria have adapted likely to appear via videolink. ‘[b]eing arrested, taken to a police vulnerable clients: In the light of modern technology, it is at least a human process. It does to Covid-19 by shifting Clearly there are trade-offs that station and then on to court is a such a narrow and restrictive not add to the human strength of the hearings online. It has must be made in determining how shaming process. It is an extremely ‘face-to-face relationships between interpretation of that term seems, sentencing process to turn it into a become commonplace best to maintain the justice system unpleasant experience to stand in a lawyers and [in particular] to me, not to be warranted.10 disembodied electronic exercise. for judges and lawyers during a global pandemic. But there dock and be told by a judge that you’re marginalised and vulnerable to take part in proceedings while is a risk that remote hearings present going to receive a sentence. There is communities are often crucial in There is also precedent suggesting Justice Campbell in R. v. Fecteau sitting in front of a computer at a model that is so convenient that it a danger that this process would be building trust and respect, both of that the mode of presentation in (1989) 49 C.C.C. (3d) 534 (Ont. H.C.J) S home or in chambers. Even now, as will automatically be retained into debased by being made to look like which are important in securing court can impact proceedings, lockdown measures in Victoria taper the future. We cannot allow practices a reality TV game’.3 positive justice outcomes’.7 The Law creating a risk of unfair prejudice.

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Defendants in the live videolink are often 1 Joe Mcintyre, Anna Olijnyk and Kieran In the case of Benbrika, an for an audience to remember when and room layout, the elevated more Pender, “Courts and COVID-19: Challenges application was made by defence compared with evidence presented distant seat for the judge, the ritual doubly trapped: framed within the screen and and Opportunities in Australia”, AUSPUBLAW to remove perspex security screens in a dull manner.14 One suggestion of of rising when the judge enters, (Blog Post, 4 May 2020) < https://auspublaw. news and views news judged in the context of their confinement”. org/2020/05/courts-and-covid-19-challenges-and- surrounding the accused due to the why this is the case is that: the element of theatre. It can feel opportunities-in-australia/>. risk that such an arrangement in intimidating, but it is also reassuring 2 “’Virtual court’cases go on trial in London”, Evening court would lead to unfair prejudice. evidence of the seriousness attached the Bail and Remand Court, new A 2009 study of the efficiency Standard (online, 9 May 2007) . Bongiorno noted that: impartiality of justice. [...] With not uncommon for prisoners to Ontario found that its court 3 Ibid. a hearing conducted wholly over appear at their bail application hearings were shorter in ‘[the screens] cut the accused off Skype, all that gravitas is lost. Court on speakerphone. This novel duration, but likely to require 4 Transform Justice, “Defendants on video – conveyor from the court room in such a way belt justice or a revolution in access?” (October architecture is replaced with the technological feat is managed more appearances.20 The study as to render the accused’s presence 2017) . by video link’.11 close up and personal, just like anyone the appropriate holding cell. be finalised was significantly 5 In Brief #1001, Victorian Bar. When dealing with a similar else with his face in a little square in The sound quality for these reduced, due to the perception 6 Michael Pelly, “No thongs please, we’re barristers”, 16 Australian Financial Review (Sydney, 18 March, application made in the New the screen. proceedings is extraordinarily that court time in the video 2021). South Wales Supreme Court, poor, with the excessive reverb remand court was essentially The participant in this case 7 Law Council of Australia, Submission to Select Justice Whealy stated: from the cell making the “cost-free”.21 Disturbingly, this gave evidence about Committee on COVID-19, Parliament of Australia, accused sound as though they study found that bail matters Inquiry into the Australian Government’s Response ‘[i]n my opinion, the presence managing her are drifting off into space, often that progressed through the to the COVID-19 Pandemic (15 June 2020) 29 [113]. of the glass screen is but one father’s health, but frustrated and unintelligible, video remand court took an 8 Law Council of Australia, Submission to Select more layer of prejudice ...and felt disconnected Committee on COVID-19, Parliament of Australia, it is an aspect of prejudice from proceedings, and usually placed on mute average of seven appearances Inquiry into the Australian Government’s Response that can be avoided stating that: fairly quickly. The ability to while matters dealt with to the COVID-19 Pandemic (15 June 2020) 18 [60]. altogether by relatively mute prisoners with such in open court took only 2.1 9 Butera v Director of Public Prosecutions (Vic) [1987] Skype took away from me the ability 22 HCA 58, [15] (Mason C.J, Brennan and Deane JJ). simple and comparatively ease suggests that prisoners appearances. This finding 12 to look these people in the eyes— participating in remote hearings suggests that while videolinks 10 Pell v The Queen [20190] VSCA 186, [1167] inexpensive means’. . these people who have their opinions are further removed from appear to create greater (Weinberg JA) The same could be said in about my Dad and only knew him proceedings, and less able efficiencies on the surface, there 11 R v Benbrika and Ors (No. 12) [2007] VSC 524. comparing videolinks to physical through third-hand notes. I wanted to to participate as a result. As may be hidden procedural costs 12 R v Baladjam and Ors (No. 41) [2008] NSWSC 714, [78]. appearances. The impact of using look them in the eyes and make them noted by Dr Emma Rowden, that would make it more difficult a videolink will differ depending hear the truth but I was looking at a “[d]efendants in the live to get through the frightening 13 Sara Landström, Karl Ask & Charlotte Sommar, on the type of hearing involved. computer screen.17 “Credibility judgments in context: effects of videolink are often doubly backlog in Victorian courts. emotional expression, presentation mode, and A practice that may be appropriate ‘vivid information presented at trials In May of 2020, Punitham Genesan trapped: framed within the statement consistency” (2019) 25(3), Psychology, for purely procedural appearances Crime & Law. may garner more attention, recruit was sentenced to death via Zoom in screen and judged in the context Conclusion may be prejudicial for evidentiary 19 14 Brad E. Bell & Elizabeth F Loftus, “Vivid Persuasion more additional information from the Supreme Court of Singapore. In of their confinement”. Covid-19 presents opportunities hearings that involve discretionary in the Courtroom”(1986) Journal of Personality memory, cause people to spend more the same month, Olalekan Hameed to redesign and improve Assessment 49 (6). assessment. systems within a traditionally time in thought, be more available was sentenced to death via Zoom Procedural hearings 15 Ibid. in memory, be perceived as having As well as the qualitative issues conservative profession. While Evidentiary hearings in the Lagos State High Court, 16 Celia Kitzinger, “Remote justice: a family a more credible source, and have a Nigeria. Several death sentences raised by videolink hearings, there are positives that have perspective” Transparency Project (Blog Post: 29 Research suggests that victims greater affective impact’.15 have been handed down via Zoom there is also the risk that been brought about through March 2020) . in Indonesian courts.18 It seems videolinks create an illusion an increased use of videolink generally more positively evaluated 17 Ibid. completely inhuman for a court to of efficiency. When all the technology in Victorian courts, by juries as well as being perceived Human considerations have such a profound impact on the relevant parties are physically there is also time now to reflect 18 Harm Reduction International, “The Death Penalty as more honest and convincing than A post by Celia Kitzinger on The for Drug Offences: Global Overview 2020”(Report) life of another without having to look at court, it is often possible for on what may be lost. It is those who testify over a videolink.13 Transparency Project gives a . Part of this observed difference may powerful personal perspective, existence of the death sentence is courts to discover extra capacity prejudice creep into the system 19 Elizabeth Rowden, “Remote participation and the be explained by what sociological vividly describing her experience repugnant enough to contemplate, to hear matters that would not on the basis of convenience. distributed court: An approach to court architecture researchers have termed the of supporting a person whose in the age of video-mediated communications”(PhD but the inhumanity of a prisoner otherwise have been able to Now that we see some light at “vividness effect”. In essence, this father was the subject of the first Thesis, The , 2011). sitting down in front of a computer proceed. On a videolink, court the end of the Covid-19 tunnel, effect is the proposed correlation entirely online hearing in the UK 20 Cheryl Marie Webster, “Out of Sight, Out of Mind: screen to be told that the State is time seems more rigid. Matters it is time to decide how we between information that is vividly Court of Protection: A Case Study of Bail Efficiency in an Ontario Video going to take their life elevates the booked in for one purpose are want our future courts to look Remand Court” (2009) 21(1) Current Issues in presented and the persuasive impact In other cases, I’ve been involved in, injustice of such practices to a new unlikely to proceed in a different and feel, making the best use Criminal Justice. that it has on an audience. Vivid families have often talked about the and perverse level. manner, and it is difficult for of available technologies but 21 Ibid, 121. testimonies have been assessed gravitas attached to a courtroom The issues with sound quality are parties to continue discussions without diminishing what makes 22 Ibid, 119. as being more credible, and easier hearing: the formality of architecture bad enough with videolinks, but in once the link is closed. our courts human.

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A light-hearted dialogue in which a discontented mother of them weren’t on there. How are using all this elaborate language is Mother: You’re almost and father implore their son (the Corporations Act) to people meant to find the law? We really cool, but a mark of maturity Your teacher, grow up. raised you to be better than that. is expressing yourself clearly. Cally Jordan, news and views news No one talks like you in the real said your Father: Corporations Act 2001 (Cth), could you come Mother: I took a look at some and world. We think it’s time you were class-mates here please? Your mother and I would like to speak could barely understand them! Many a little clearer. thought you with you. of them were written as ‘notional’ were “unlovely legislative provisions, obscuring their Corporations Act: I think you’re [Enter Corporations Act.] and unloved”. actual effect. Didn’t they teach you to being unfair. I’ve been a huge Father: Son, this year you’re turning 20 years old. express yourself clearly in school? success, Mum and Dad—I’ve Corporations Act: Ouch! Your mother and I are proud of you—you’ve achieved registered millions of companies and Corporations Act: Mother: We still love you son. But we a lot: a nationally consistent regulation of basic tens of thousands of licensees It’s not my fault— do think it’s time you grew up. company law, insolvency, financial markets, products and representatives, while I need instruments and services, and so much else. However, we are also punishing bad guys, and Father: Your mother is right. It’s , to function! concerned about you. You need to grow up. contributing to the economic time you took a good hard look at Mother: Well, that success of our country! your definitions and considered 20 Corporations Act: What did I do? Was it the Financial Corporations leads us to our next consolidating them, using them Sector Reform (Hayne Royal Commission Response) concern, son … You’re falling behind consistently, and making them Act 2020? clearer. And it’s time to consider Act Father: That’s well and good son, Father: No son, it’s nothing to do with that. Please You’re addicted to your legislative design—how but you’re falling behind. Even take a seat. And remember, what we’re about to say you’re using regulations and t over 3,700 instruments your cousin over the ditch is now comes from a place of love. instruments, and how they can be pages, the Father: We’re worried you might machine-readable, while many made more accessible. Corporations Act Oh how you’ve grown be addicted to legislative and other of your instruments are saved 2001 (Cth) is a instruments. You can’t just keep as images! Mother: And it’s time you ensured weighty tome Mother: Your father and I remember when you were putting an instrument on the parts that you are clearer about what Mother: You really do need to keep that requires just 1866 pages. You’ve grown a lot since then, but of yourself you don’t like. We barely you’re trying to achieve, so that your up with technology. Why are you dedication and don’t you think you should slow down a bit? You’ve recognise the boy we raised! Just last intent is actually realised. still requiring directors to execute persistence to really been bulking up. You’re now over 3,700 pages, year, an ASIC legislative instrument documents on a single, hard copy? Corporations Act: Ok Mum and Dad. decipher. The Australian Law Reform Commission and that doesn’t even include your regulations and ‘modified’ you so that your Australian And requiring meetings to be I’ll have a think about it. I feel a bit (ALRC) has the task of reviewing the legislative other legislative instruments! Financial Services licence regime conducted in person, rather than bruised, but I know you’re just trying framework for corporations and financial would apply in a significantly Father: I can barely get my arms around digitally? You’re falling behind the to help me. services regulation in Australia, focusing different way to foreign financial your primary provisions without opening other kids. on the Corporations Act. To help lighten services providers. Mother: Perhaps you should talk to six PDFs on the Federal Register of the cerebral load in the ALRC office, Corporations Act: But ASIC fixed the ALRC, son? I hear they’ve got Legislation! Your brother, the ASIC Act Mother: We don’t think you need all lunchtimeA discussions about derivatives, that for me last year! some ideas … 2001 (Cth), only put on 232 pages in the these instruments, honey. Don’t you superannuation and insurance have [Fade to black.] same time period. And your sister, the think you should be able to stand on Mother: We know son. But those progressed to trying to find the lighter side of National Consumer Credit Protection Act 2009, your own two feet and let the nice modifications are time-limited, Corporations Act reform. A by-product has been Disclaimer has only grown by 273 pages since she was born people at ASIC get on with their and intended simply to deal with the fictional dialogue produced below. The above dialogue is entirely fictional. in 2009. other important work? the effects of the coronavirus The genesis of the script is the upcoming 20th birthday No feelings of the Corporations pandemic. Don’t you think it’s time of the Corporations Act. W.illiam Isdale (Senior Legal Corporations Act: That’s not fair, I do so much more Corporations Act: Whatever, Mum. Act were harmed in its production. for a more fundamental review, to Officer) and Nicholas Simoes da Silva (Legal Officer) than them! Everyone’s using instruments these To find out more about the ALRC’s ensure you’re keeping pace with document a fictional conversation that illustrates some days. You just don’t understand … Corporations and Financial Services Mother: That’s true, son. But your father and I think technological change? of the substantive issues being considered by the ALRC. Legislation Inquiry visit: https:// you should focus on your strengths. You’re trying to do In the dialogue, a discontented mother and father You’re too complicated www.alrc.gov.au/inquiry/review- too much. Maybe it’s time you gave up insolvency and It’s time to listen to your implore their son (the anthropomorphised Corporations of-the-legislative-framework-for- financial markets regulation, and left them for other Mother: That’s not the only thing I Act) to grow up. It is worth noting that the Inquiry’s friends corporations-and-financial-services- Acts to focus on. Please give it some thought. don’t understand about you! You’ve terms of reference emphasise the simplification and Father: The truth is, son, that people regulation/ become so complex – it’s like I barely rationalisation of the relevant law “within existing policy are starting to say unkind things about William Isdale and Nicholas Simoes You’re hiding stuff under your bed know you anymore. You’ve been settings”. The Inquiry will involve three interim reports: you. Your uncle Hayne said that you’ve da Silva are Senior Legal Officer using all these obscure definitions, the first concerning the use of definitions; the second Father: I was vacuuming the other day and found been “piling exception upon exception” and Legal Officer, respectively, at the like “simple corporate bonds concerning the coherence of the regulatory design over 366 legislative instruments under your bed, and and “carving out special rules for Australian Law Reform Commission. depository nominee”—but there’s and hierarchy of laws; and the third concerning the a box of thousands of individual relief instruments. special interests”. And Justice Rares Their views, and comedic ineptitude, nothing simple about it! potential reframing or restructuring of Chapter 7 of the Why are you hiding these from us? We looked on the said you were starting to look a bit like are entirely their own, and not those of Corporations Act 2001 (Cth). Federal Register of Legislation and found that many Father: Son, I’m sure you think “legislative porridge”. the ALRC.

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The last significant investigation interests of justice – and this test will have to be satisfied that the sentence into the de novo appeals system in apply to people seeking to change was unreasonable or plainly unjust).37 Pause for Thought? The Case 24 Victoria was undertaken by the Law their plea. An appeal may be struck What this all means will have to news and views news Reform Committee of the Parliament out on the basis that it does not have be tested. for Reversing the Abolition of of Victoria in October 2006.17 The reasonable prospects of success.25 findings of that investigation were The County Court will be empowered The Consequences published in a 270-page report to remit matters, dismiss charges, Abolishing de novo appeals removes entitled ‘De Novo Appeals to the substitute charges, and to vary and a powerful reason for accused De Novo Criminal Appeals 26 County Court’ (the Report) which impose sentences. persons to resolve matters summarily. recommended that de novo appeals In relation to appeals against That would be unfortunate given the Michael Stanton and Paul Smallwood1 be retained. The Report concluded: conviction, the reforms limit the utilitarian benefits that summary right of appeal, in general, to a resolutions bring, including to the As the framers of the English criminal reconsideration of the evidence community and to victims. It also justice system apparently realised Magistrates must make swift decisions that can have given before the Magistrates’ Court imposes a very different model of Overview in the 17th century, de novo appeals lasting consequences for an accused (such as imposing in the summary hearing.27 The advocacy upon those who practise in ollowing the enactment of legislation are not a substitute for trial by jury, a conviction or a gaol sentence), and the majority of Court must consider the reasons of the Magistrates’ Court, and a burden passed by the Victorian Government but they do provide an important decisions are given ex tempore. While a day may be the Magistrates’ Court.28 The Court on Magistrates that is simply not in 2019,2 de novo appeals from the counterweight to summary trial. available for a plea hearing in the County Court, a may receive further evidence if it practicable given the pressures on Magistrates’ Court to the County Court For this reason, de novo appeals can hearing in the Magistrates’ Court may take as little as is in the interests of justice having that court. were to be abolished from 3 July 2021 also be seen as serving to enhance a few minutes. A large number of summary matters regard to factors including the right These reforms would require (‘the reforms’).3 On 23 March 2021, the public confidence in the criminal involve unrepresented accused, or legal representation of an appellant to fully present their defence lawyers to obtain recordings Justice Legislation Amendment (System Enhancements justice system.18 by relatively junior lawyers. Due to changes to legal and/or transcript of Magistrates’ and Other Matters) Act 2021 (Vic.) received Royal Assent, appeal and whether the evidence Court hearings38 and all the material F 4 aid eligibility guidelines in 2015, more work has to be The Report also found that the was available at the summary delaying the reforms until 1 January 2023. That delay undertaken by duty lawyers, who regularly have to meet 29 that was before the court, consider was said to be justified on the basis that “[c]hanging the abolition of the de novo appeal hearing. For what is deemed as multiple accused persons, give advice to unrepresented 30 whether there are errors in the forced commencement date supports the implementation system would ‘almost certainly “protected” evidence, the evidence reasons in order to frame notices of these reforms by providing additional time to prepare accused, take instructions, and prepare and present reduce the efficiency of, and increase must be “substantially relevant 31 for leave to appeal, and prepare an for commencement, in light of the impact of COVID-19 on multiple pleas on any given day. The de novo appeal costs for, the Magistrates’ Court’ to a fact in issue”. If there is a entirely different form of submissions the justice system”.5 provides a vital safety net. and would make hearings in the recording available of the evidence, to the County Court. Whether No doubt this comes as a relief to those operating in As the then attorney-general remarked when Magistrates’ Court longer and more consideration must be given as to 19 Victoria Legal Aid will be able to able an overburdened system struggling with the reality of introducing the reforms, the Magistrates’ Court handles complex. Further, the Report why the evidence should be given 32 to properly fund this exercise for ‘COVID-normal’ and the backlog of summary cases and over 90 per cent of all cases that come before Victorian considered the need for people to again. those unable to afford private legal criminal trials. However, it also raises the question: if de criminal courts each year, and only a small percentage are access a fair appeals system and In relation to appeals against 12 representation is not known. The novo appeals should not be abolished now, should they be appealed. In contrast to the figures from the Magistrates’ warned against weakening the sentence, the reforms limit the right County Court will be confronted with abolished at all? Court, in 2018–19 there were only 2,498 criminal appeals protections against errors made of appeal to a reconsideration of the commenced in the County Court, with 2,273 finalised in the Magistrates’ Court.20 evidence and other material that more complex appeals, and more De Novo Appeals in Criminal Matters (with 96 per cent disposed of within six months).13 Such was before the Magistrates’ Court,33 jury trials as more accused persons refuse to plead guilty and/or consent De novo appeals allow for matters determined in the appeals have formed a relatively small proportion of the The Reforms although the Court may have regard to summary jurisdiction without the Magistrates’ Court to be reconsidered afresh by way of business of the County Court. Once operational, the reforms will, to evidence, material or information safety net. rehearing in the County Court.6 The accused person is not Written submissions are now required for all County amongst other things, abolish ‘as of that occurred after the Magistrates’ 14 34 bound by his or her plea in the Magistrates’ Court.7 The Court pleas. There is generally the time to make right’ appeals to the County Court Court sentenced the person. The Purported Basis for the origin of the de novo appeal lies in the accused forgoing detailed submissions and for relevant points of law to for all matters where a person Concerningly, there is no express his or her right to trial by jury, and the principle that by be addressed and determined. Applications for leave to pleaded guilty or did not appear power to have regard to material Reforms consenting to summary jurisdiction the de novo appeal is appeal against sentence from the County Court to the when convicted and sentenced in existence at the time, but not The arguments in favour of the a ‘counterweight’ that provides protection to the accused.8 Court of Appeal require the identification of an error in at the Magistrates’ Court.21 relied on, before the Magistrates’ abolition of de novo appeals are Given the “paramount importance of the individual’s right the sentence first imposed.15 Points not made before the For both conviction and sentence Court. The Court must only allow misguided. To the extent it is claimed to have indictable charges tried by a jury”,9 consenting County Court will rarely be entertained if ventilated for matters, after filing an application an appeal if it is satisfied that there that de novo appeals undermine to summary jurisdiction is no small thing. Those with the first time on appeal before the Court of Appeal.16 for leave to appeal or a notice of are “substantial reasons” to impose a public confidence in Magistrates39 practical experience in the Magistrates’ Court know that Proceeding with the abolition of de novo appeals appeal within 28 days of the relevant different sentence.35 The Court must or their abolition would result in this ‘safety net’ can provide a powerful reason for accused will narrow the distinction between how summary and sentence,22 the reforms require the have regard to the reasons of the better decision-making, there is persons to resolve matters summarily. indictable proceedings are heard and determined. That filing of a ‘summary of appeal notice’ Magistrates’ Court and “the need for a no evidence that is so. Imposing Magistrates sometimes have to deal with more than would be a misstep. It would increase costs. It would within the next 28 days stating the fair and just outcome”.36 The Court is an obligation on Magistrates to 80 matters in a day. In 2018–19 alone, 151,765 cases were increase delays. It would result in relatively fewer matters general grounds of appeal in the not required to find specific error, but give full reasons with one eye on a initiated and 67,973 were finalised in the Magistrates’ being determined summarily, and those matters that are prescribed form.23 For an application it must be more than merely arguable potential appeal, when the practical Court.10 There were 660,262 criminal listings.11 This to be finalised in the Magistrates’ Court being approached for leave to appeal, the County Court that a different sentence should be constraints of the court make it vast caseload places great pressure on all involved. as though they were indictable proceedings. may only grant leave if it is in the imposed (although the Court does not almost impossible to do so, is simply

46 VBN VBN 47 1 Some of the following is based on a A person who did not appear must unfair. Magistrates already face vast comment prepared by Liberty Victoria first apply to the Magistrates’ Court pressure operating at the coalface on the Justice Legislation Amendment for the matter to be reheard: s 254(3). THIS IS WHAT of the criminal justice system. (Unlawful Association and Criminal Pursuant to s 254(4), an application or news and views news Appeals) Bill 2018 (Vic.). With thanks appeal against a decision of the Chief To the extent it is claimed that to colleagues Stewart Bayles and Julia Magistrate as a dual commission holder SHAKESPEARE SHOULD BE de novo appeals can traumatise Kretzenbacher. must be made to the Trial Division of complainants by them having to 2 Justice Legislation Amendment (Criminal the Supreme Court. THE SYDNEY MORNING HERALD Appeals) Act 2019 (Vic.) (“the 2019 Act”) 22 Ibid s 255(1). 40 give evidence a second time, in pt 3 div 1. 23 Ibid s 255A. Or the appeal with be almost all circumstances that only 3 Ibid s 2(3). It also applies to appeals taken to be abandoned and may be applies to conviction appeals, which under the Children, Youth and Families struck out pursuant to s 266A. Act 2005 (Vic.). The proposed reforms 24 Ibid s 255B. are a small part of the County Court’s had attracted significant criticism from 25 Ibid s 268A. appeal workload. It is already the parts of the legal community. See, e.g., 26 Ibid ss 256, 256B(8). The reforms also case that pre-recorded evidence Karin Derkley, “De novo appeals a vital abolish the limited right of an accused ‘safety net’”, Law Institute Journal (Web person to seek leave to appeal to the 41 is admissible in many cases. Any Page, 14 August 2018). . Court or Children’s Court, where the significant protections in relation 4 Justice Legislation Amendment (System original court did not order the person to how witnesses may give their Enhancements and Other Matters) Act to be imprisoned: Justice Legislation evidence.43 It is certainly, at its highest, 2021 (Vic.), pt 19. Amendment (Criminal Appeals) Act 2019 5 Explanatory Memorandum to the (Vic.) ss 16, 30. In contrast, the limited not an argument for the abolition Justice Legislation Amendment (System right of the DPP to appeal to the Court of de novo sentence appeals. Enhancements and Other Matters) Bill of Appeal for some categories of cases It also wrong to suggest that 2021 (Vic.) cl 124. pursuant to s 290A of the Criminal 6 Criminal Procedure Act 2009 (Vic.) Procedure Act 2009 (Vic.) is preserved. de novo appeals, when conducted pt 6.1. 27 Ibid s 256(1). properly, are inefficient. Such 7 Ibid, s 256(1). 28 Ibid s 256(1)(c). appeals, in the vast majority of 8 Law Reform Committee, Parliament 29 Ibid s 265E(2). of Victoria, “De Novo Appeals to the 30 Ibid s 265E(3)-(4), involving matters, are more efficient than County Court” (Final Report, 17 October complainants in sexual offences, family having to obtain material, prepare 2006) 30. violence and obscenity matters, and and present legal submissions, 9 Clayton v Hall & Anor (2008) 184 A Crim witnesses in such matters (or where the R 440, 450 [33] (Kaye J). offence involves an assault or injury or and then have a judge review and 10 Magistrates’ Court of Victoria, Annual threat of injury) who were children, or resolve issues in dispute in an Report 2018–19 (Report, 14 November cognitively impaired, at the time that appellate jurisdiction bound in part 2019) 33 . Given the impact of s 265(1), (3)-(4) (as will be amended before the Magistrates’ Court. COVID-19 in 2019–20, this article refers when the 2019 Act comes into to the 2018-19 statistics. operation). 11 Ibid. 32 Ibid s 265E(d)(ii). Conclusion 12 Victoria, Parliamentary Debates, 33 Ibid s 256B(1), having regard to s In 2006, the Law Reform Committee Legislative Assembly, 17 October 2019, 256B(2). concluded: 3687 (The Hon Jill Hennessy, Attorney- 34 Ibid s 256B(3). General, Minister for Workplace Safety). 35 Ibid s 256B(5). Victoria’s system of de novo appeal 13 County Court of Victoria, Annual 36 Ibid s 256B(6). Report 2018–19 (Report, 2019) 7 37 Ibid s 256B(7). is both comparatively efficient— . mention hearing or by a registrar or the 14 County Court of Victoria, Practice Note Prothonotary. system—and comparatively fair. PNCR 1-2015 (12 July 2019) 10 [7.12]. 39 Victoria, Parliamentary Debates, BY WILLIAM SHAKESPEARE In the Committee’s view, Victoria’s 15 Criminal Procedure Act 2009 (Vic.) Legislative Assembly, 17 October 2019, DIRECTOR PETER EVANS system of de novo appeal achieves s 281(1). And that a different sentence 3687 (The Hon Jill Hennessy, Attorney- should be imposed. General, Minister for Workplace Safety). a remarkable synthesis of justice 16 Romero v The Queen (2011) 32 VR 486. 40 Ibid. 9-19 SEPT 44 and value for money. 17 See Liberty Victoria, Comment on 41 Criminal Procedure Act 2009 (Vic.) pt ARTS CENTRE MELBOURNE the Justice Legislation Amendment 8.2 div 5. Preserving this “remarkable (Unlawful Association and Criminal 42 Evidence Act 2008 (Vic) s 41. synthesis” during the COVID-19 Appeals) Bill, (web page 18 August 43 Criminal Procedure Act 2009 (Vic.) s 360. 2018) . xvii. 18 The Report, 202. 19 Ibid 5. 20 Ibid xi. 21 Criminal Procedure Act 2009 (Vic.) s 254(2) (as will be substituted once pt 3 div 1 of the 2019 Act becomes operational on 1 January 2023).

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Evidence law and the mess we are in

GEOFFREY GIBSON

uring 30 of my 50 years in the They are not purporting to record what happened law, I tried cases in tribunals as a matter of historical fact, but to find which side’s which were not bound by the case seems more likely. As Justice Dawson observed in rules of evidence. You still Whitehorn v R (1983) 152 CLR 657, 682, “a trial is not a usually apply the basic rules, pursuit of truth by any means”. The judge is not there to partly because of professional build a case or compile a dossier, or supply matter not conditioning, but mostly because they reflect logic and put by the parties, but merely to act like a cricket umpire common fairness. Their purpose is not just to protect responding to the long-sanctioned appeal, “Howzat?”. fairness, but to ensure that people stick to the point and This is clear from the varying standards of proof. A resolve the dispute with speed. It may help to reflect criminal charge must be proved beyond reasonable doubt. Don them. Everyone knows what that means, and we are expressly Over centuries, the common law moved to determine forbidden to flirt with it. The claimant in a civil suit need issues of fact by people rather than God—by a jury (in only achieve the response that the claim is more likely pais). One reason we have lost our way is by reducing than not—what is termed the balance of probabilities. the role of the jury. When that body of law called equity If the allegation carries very serious consequences, then grew in Chancery, its judges proceeded by way of written an intermediate standard may be imposed that takes evidence. This deviation contributed to the dreadful its name from an old case on adultery (Briginshaw v delay, cost, and chanciness of litigation in Chancery that Briginshaw (1938), 60 CLR 336, 343-344, Latham, CJ). Dickens pilloried in Bleak House. And Chancery had no I have struggled with this ruling. Instinctively, there are contact with ordinary people on a jury – they created obvious differences in the evidentiary certainty which elegant doctrines far above the reach, or sense, of most might lead without hesitation to a finding that a man owes of us. A body set up to protect the poor and oppressed a debt, but not to a finding that might hang him. became a shield of the rich and powerful. What are the basic rules of evidence? Evidence law controls the way in which a witness gives It is hardly a rule, because it should be self-evident evidence of facts in a common law trial. A ‘witness,’ says —the evidence must come from the witness and not the Oxford English Dictionary, is ‘one who gives evidence their lawyer. Counsel may not phrase the question to in relation to matters of fact under inquiry.’ ‘Evidence’ is their witness in a way that suggests the answer. So, we ‘ground for belief; that which tends to prove or disprove come immediately to the problem of evidence tendered any conclusion.’ The ‘matter of fact under inquiry’ is in writing, by affidavit or witness statement. There, the determined by the allegations of fact made by the parties lawyers don’t just suggest the answer—they write it. and by the remedy that is sought. Historically, the object The perils are obvious. This is why we banned written of pleadings was to define an issue to which the jury statements in crime. It had become a circus. could give a simple answer – yes or no. Sadly, all that fell Next, the witness is there to give evidence about matters away decades ago. of fact, not opinion. The witness is there to say what Our system is not inquisitorial. It is adversarial. The they saw—not to say, “In my view the accident happened judges in civil actions listen to the evidence and the because the Porsche was going too fast”. The most obvious arguments, then ruling in favour of the case they prefer. exception is expert evidence, such as that given by doctors,

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surveyors, or economists. They are confessions—and business records from it would be unfair to the other an adversarial Morris Minor into Judges need to come down harder on cross- there to assist the jury to apply about business dealings. party. The law of ‘estoppel’ has a an inquisitorial Rolls Royce. And examination that is inept, oppressive or slippery. evidence that links the facts deposed Then, as a matter of policy, decent history in our common law. cross-examination is now as close to news and views news to by witnesses to the forensic witnesses may be relieved from When I started, you could fairly call extinction as examination in chief. conclusion—such as that that one answering some questions which it a rule of the law of evidence. But Instead of cross-examination, we merchant has achieved dominance in might unfairly encroach on their after the intervention of equity, that get: ‘You and I are going on a little about 700 causes a year. He insisted and before any transcript arrived at a market. The problem there is not in rights. Examples are the privilege is no longer so. Here is a real clash journey, Sunshine, and we will wave on clearing his list about once the tribunal. the rules, but in the conflict between against incriminating yourself or between the need to be fair and under your nose every dirty bit of each term. He knew that delay May I come back to witness the obligation to tell the truth and the revealing what you told your lawyers the wish to control and decide the laundry and every silly or naughty and increased costs come from the statements? In my view, that practice felt need to serve the interests of the or what advice they gave you. You can dispute expeditiously. thing you have ever said in the past lawyers, and that no litigant with is not fair to the witness, the lawyers, client paying them. be held to have waived your privilege Next, what if you want to say that until you give us what we want.’ a fair case ever wants delay. He or the tribunal. They want to assess A primary rule is that the evidence if you say that you were acting on I have evidence that this builder The pleadings were meant to outlawed adjournments even by the witnesses by hearing them give must be relevant to the proof or ruined other projects and I wish to define the issue. Much time, money consent. He knew instinctively what their evidence from the start and the disproof of the matter in tender it to help prove that and ingenuity are spent on gorgeous all judges should know and act on: witnesses should be able to find their issue. Arguments here he ruined mine? Well, if that displays that end up being of as delay and expense favour the rich feet before they are put to the test. turn on the degree to evidence does help—the much use as the fantail of a peacock. and the powerful. The point is simple. The last tax case I heard (Di which that issue has phrase is “has probative Too often the real point is buried If the trial process takes too long, it is Dio Nominees v Commissioner for been crystallised in the value”—why not let it in? But in a second grade category called not fair. Since Magna Carta entered State Revenue VCAT [2004]1824) pleadings filed by the parties. we recoil from saying that this ‘particulars’—details or, if you prefer, our forensic fabric in 1215, it has showed how bad it can be. A Sicilian There is, therefore, a accused has been found guilty material facts, rather than broad been axiomatic that justice delayed migrant changed from being a prohibition in adducing of these offences before, and legal conclusions—that the other is justice denied. And if the judges butcher to a baker in Werribee—he evidence in chief that does not we wish to tender evidence of party does not plead to. The horrors at Nuremberg and at the ultimate did not like the cool room—and he go to the issue in the dispute, those convictions to support our and traps in discovery and court courts of Australia, the US, and the astutely bought land in the corridor. but only to the credibility of a contention that he is guilty of the books are well known. Now counsel UK imposed strict time limits, why By the time he got to me, he was witness. This kind of questioning present charge. These are difficult keep getting asked for more written on earth cannot our trial judges do worth well north of $40 million. is allowed in cross-examination. issues, and the law relating to similar submissions as if some judges want that at the trial? He distrusted lawyers and all The major examples are prior fact evidence or ‘tendency and their decisions written for them. There is another way, based on the professionals. Was he now a farmer? inconsistent statements, the rules coincidence’ will always call for The failure properly to control the way magistrates proceeded when I Someone in my absence had made about which we have largely close scrutiny. trial process is most evident in how started in the law. Instead of a long directions for witness statements. forgotten. But the law says that Finally, there are two dictates of judges handle the examination of war of attrition, we can offer a quick The Sicilian filed a long statement if the cross-examination goes common sense and fairness. If a witnesses. Some cross-examination trial. When you receive a request for in impeccable English all about only to credit, you are bound party has access to evidence, but goes on for hours, days even. This relief, you fix a date for hearing, say trusts and companies. The Sicilian by the answer: you cannot does not produce it, the inference is a real flaw in our process and a in six weeks, to allow time for both probably contributed not one word lead evidence to contradict may well be that such evidence is denial of fairness both to the parties sides to get ready to go into the ring. to the document. The first thing he evidence of an earlier witness against the case of that party. And and the taxpayers who fund this You then proceed on the footing did in the witness box was to ask on a peripheral issue. In my if you are going to call evidence gravy train. There is, in my view, no that the claimant and the person for an interpreter. But he knew his time hearing cases, I cannot recall on a point on which you are cross- reason why time limits should not be sued both want to get out of this occupation: “Farmer,” he said with hearing this law being invoked We have created a examining a witness, you should put imposed on cross-examination, and ugly fight and to get on with their pride and drilled determination, in once. In the result, we see grown monster by converting the substance of that evidence to the judges need to come down harder lives—and that their lawyers are English. Since that answer might be adults chasing rabbits down burrows an adversarial Morris witness. This means simply that you on cross-examination that is inept, equipped to help them do just that. thought to beg the whole question in everywhere, mini inquisitions that should allow the other side the right oppressive or slippery. The court has Your process is not inquisitorial. It is the case, I asked the interpreter what take the case clean off the rails and Minor into an inquisitorial to respond to your case. the power to disallow questions that for the parties to engage. Then they was the Italian word for “farmer.” He put the costs through the roof, and Rolls Royce. They are the basic rules of the law are misleading, confusing, unduly turn up on the day and the better said there was none. It was Alice in reputations getting murdered in of evidence—and they are all rules annoying or repetitive, insulting case wins. You have let it be known Wonderland. And it was degrading. plain sight. that you would expect to be referred or otherwise inappropriate. And that an adjournment would require May I conclude with the sample legal advice. Another protected area Next, because of our insistence to before a tribunal that is not bound the court must take action against something like an act of God. You will peroration with which Aristotle is what is said in bona fide settlement that the evidence must come by the laws of evidence. The rest is such bad cross-examination even hear plenty of groaning, threatening closed Rhetoric? “I have done. You negotiations and mediations. from the witness in the box, the detail. What does this say about our if counsel for the witness takes no and posturing—but not from two have heard me. The facts are before The court has a strong interest in witness is precluded from giving trial process now? objection. How could it be otherwise? people—the person who first came you. I ask for your judgment.” protecting attempts at settlement. evidence of a statement made out Precedent now is a morass of Justice at law is a precious resource to you for relief, or the taxpayer who Geoff Gibson has divided his 51 years One well-known rule is based of court as evidence of the truth footnoted oblivion. With avalanches that has to be protected by the judges has to bear most of the cost of the in the law between the Bar, partnership on fairness. If one party conducts of that statement. The rationale of of documentation produced on so that to the extent possible it is super deluxe model. That is how in an international law firm, 30 years themselves in a way that leads the the hearsay rule is obvious. The discovery, witness statements, and available to all of us. If that requires state tax cases were decided by the presiding over tribunals on a sessional other party to proceed on the basis main exceptions are statements written statements of the case, we a kind of rationing, so be it. Victorian tax tribunal. And in every basis, and writing five books on the of an assumption, that party will be against interest—admissions and have created a monster by converting Lord Mansfield was Lord Chief case, the decision was given either law, including The Common Law, held to that assumption if to resile Justice for 32 years. He decided at the hearing or a day or two later— A History.

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to say. She was joined by a number of His suggestion for “one and Amending the national Indigenous sport leaders. free” bubbled to the surface and The change has been long overdue. immediately fell on fertile ground. news and views news As related to me by Shane Phillips It worked seamlessly to introduce anthem—from words of (Bundjalung, Wonnarua & Bidjugal), my Verses 2 and 3 which sing of what a community leader and activist it means to be an inclusive people exclusion to inclusion from Redfern: and what it means to be Australian. The song at last was made whole. An interview with the Hon Peter Vickery QC 1 “We’ve been waiting for a chance in history to sing and feel included What about verse 2 – what does this do? in the anthem for this country. The Verse 2 about our people, is the main BY ARNOLD DIX2 current anthem does not include us. recognition verse. It is written as part We want to sing the anthem alongside of the truth-telling process for the other Aussies.” nation. Here, respect is shown to our and have proven so from generation First Peoples—their occupation of No other national anthem of the to generation. ‘One and free’ is and the continent and adjacent islands world has had the effect of excluding must be the story of every Australian. for 60,000 years or more, their any citizens of a country. It’s the way we truly Advance connection to country, their culture, verse 2 to sing of our core values, as looked to be a comfortable and However, in this ‘one’ word we Australia Fair.” their spirituality and their elders, expressed by our Prime Ministers convenient setting. find a vision for the future. The new I share chambers with Peter past and present. from Bob Hawke to Scott Morrison. On the night of 24 June 1852, the anthem recognises how far we have Vickery, have an indigenous In the line, “To walk together on The project began in Tumut, NSW, river burst its banks in a catastrophic come as a nation. It focusses on what heritage, and have closely followed this soil”, we make a declaration of where my wife grew up. Tumut is in flood which swept through Gundagai, unifies us, rather than what pulls the progress of his proposal over peace as we walk together towards the Snowy Mountains, in Wiradjuri killing an estimated 89 people – us apart. By replacing “young” with the years. When I heard news reconciliation. This was inspired by country. It is near to where the dog approximately a third of the town’s “one”, a word of exclusion and hurt of the change to the national words spoken about the late Dr G sits on the tuckerbox, nine miles population. The water rose quickly to has at last been replaced by a word anthem, it struck me as being Yunupingu at the memorial service for from Gundagai,5 and near to Batlow, become a torrent that swept whole of inclusion. It paves a path towards both a momentous advance and an him in September 2017. Dr Yunupingu where my late father-in-law worked buildings away and left people reconciliation. interesting example of the exercise was one of Australia’s most revered as a gun shearer in his younger days, clinging for their lives in trees. Only In a practical sense, it also of executive power. I arranged to Aboriginal musicians providing a and later as an international fruit and three buildings were left standing recognises the reality that since 1945 conduct an online interview to gain voice for vegetable marketer. when the water receded. the world has seen the emergence further insight into the project which and fostering racial harmony. Natural disaster is part of the Aboriginal locals of the Wiradjuri of at least 136 new nations. In this led to this development. It has been Djungatjunga Yunupingu said this landscape of the area. Batlow fell nation, Yarri and Jacky Jacky, assisted context, Australia can no longer a fascinating journey. in his eulogy about his nephew: victim to the long running drought by other Aboriginal people, including comfortably cling to the concept of of this century and was devasted in Long Jimmy and Tommy Davis, Introduction What inspired you to press for change— ‘young’. It has achieved the standing “He went into the world. He did. the bushfires which raged in early worked tirelessly over three days he word-change what was the need? of a significant power in the Asia- He wasn’t fighting for himself. 2020. At one point, as these terrible and nights to rescue of many of the to the Australian So many of our First Nation Pacific and has surely come of age. He wasn’t talking for himself. fires approached on all sides, the settler-colonisers. Using bark canoes, national anthem peoples have found it difficult, if He was talking for all Australians How did “ONE and free” come about? word was out—”Batlow could not they were able to locate stranded to: “Australians not impossible, to sing our national to unite and walk together.” It was clear that “young” had to go. be saved”. The ‘servo’ blew up in a people and bring them to safety. all let us rejoice, anthem with the “young“ word. After I obtained the consent of Judith The verse concludes with respect massive explosion as two houses in Their heroism is remembered to For we are all, with reference to “Australians all” Durham3 to use her lyric “In Peace for our multicultural society drawn my family were engulfed at the other this day. On 25 June, 2017, on the ONE and free”, proposed by the it excludes those Australians whose and harmony” to replace the second from “everywhere on Earth” and end of town. Many others lost their 165th anniversary of the great flood, Honourable Peter Vickery QC on ongoing culture and connection line. But then the important word recognises its strength for the orchards, farms and homes. But the a bronze sculpture of Yarri and Jacky behalf of the Recognition in Anthem with our land is not young at all, but “free”, referring to rule of law and 21st century. fire fighters kept their heads and Jacky was unveiled in the main street Project (RAP), is now part of our ancient. I found this to be profoundly our democratic system, would have bravely persevered. Most of the town of Gundagai. The sculpture, titled The national song. discriminatory and unjust. What were the inspirations for verse 3? T been lost forever. Some at the time was saved, and with the support of Great Rescue of 1852, was created by On New Year’s Eve, 31 December, A notable example of this problem Verse 3 essentially came from the were suggesting “strong” as the others, in the true Australian spirit a Melbourne artist, Darien Pullen. 2020, the Prime Minister officially was demonstrated by bush. It celebrates the uniquely replacement. But with the hint of a of lending a helping hand, people This story graphically illustrates announced that the Governor- opera singer Deborah Cheetham, Australian value of mateship and chest beating locker room war cry at rebuilt their lives. that life can be tough in Australia, General, the Honourable David who in 2015 refused the prestigious resilience, and it looks to the future in half-time, the endearing quality of Much earlier, it was the scene of but with a helping hand and Hurley, had proclaimed the new invitation of the AFL to sing the underscoring the freedom provided the ‘quiet Australian’ would be lost. one of the largest natural disasters in ingrained resilience, Australians can words effective from 1 January, 2021. anthem at the grand final of that year. by our democracy and the rule of law, Besides, it might have disturbed Australia’s history. The First People of get through. It is then that “Wattle As the Prime Minister said in She said at the time: “It was a great and our value in a fair go. Finally, the neighbours. Gundagai warned the early settlers blooms again”, as verse 3 runs. This announcing the change to greet honour ... But I really can no longer it places our vast home beneath the The dilemma was solved in not to build their houses near to the means a lot to people who have the new year, “This change is for sing the word ‘young’. It perpetuates Southern Cross, where it has lived for conversation with my long-time Murrumbidgee River, but the advice suffered natural disaster and brings all Australians. We are one country the idea of terra nullius”, she went on millennia. In this way it works with mentor and friend, Michael Black.4 was ignored in favour of what some to tears when singing it.

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How did the RAP project begin? What were the origins of “Advance walk on the stage of the 21st century, day of Bob Hawke’s memorial service The Recognition in Anthem Project Australia Fair”? grasp the opportunities and complete conducted at the Opera House on commenced when I asked a Tumut The present anthem had its origins unfinished business. Bennelong Point—”A very Australian news and views news Wiradjuri Elder, Aunty Sue Bulger, in a four-verse piece, “Advance My hope is that the tradition set celebration”, as it was described at to join me to launch the project. Australia Fair”, first written in 1878 by our national anthem to adapt to the time.13 Aunty Sue had a remarkable story by a Scottish colonialist, Peter Dodds change leads the way with verse The RAP piece is dedicated to to tell. In the mid-1960s she lived McCormick. It was a product of its which works for our time. Bob Hawke. The dedication reads: with her family in nearby Brungle. time and was strongly pro-British “Bob Hawke gave us our National How did we get the national anthem of They had a bus driver whose job and white Anglo Celtic in its lyrics, Anthem in 1984—in his last years he 1984? it was to transport children to and including such lines as: “Britannia supported its change for the Australia To cut a long story short, following from school. But he refused to pick rules the wave” and “From England of the 21st century.” an exhaustive selection process in up Aboriginal children to travel in soil and Fatherland, Scotia7 and Erin8 Another highlight was the premier the Whitlam years, it was in 1977 that the same bus with white children. fair, Let all combine with heart and performance of the proposed the Fraser government conducted So, the Bulger family moved house to hand, To advance Australia fair.” new anthem at the Desert Song a plebiscite as part of a program to Gilmore Station, close by. They had Further, the original verse 1 Festival held in Alice Springs change the national anthem from In this way it came to pass that Save The Queen”. This was effected a different bus driver—a wonderful commenced with “Australia’s sons on 15 September 2019. This was “God Save The Queen”. The question any reference to our First Peoples by proclamation of the Governor bloke called Morrie Bailey. He let us rejoice”. This did not include an opportunity to road-test and put to Australians was carefully was omitted. General of the day, Sir Ninian welcomed the family to the area— women. Nor did it include Indigenous tweak the piece for ‘singability’. worded. It asked, “What tune do you Stephen, a former Judge of the and saw to it that the Bulger children Australians in the line which What is the legal basis for changing the The renowned Central Australian prefer?” High Court and member of the were driven to school to receive an followed “For we are young and free”. national anthem? Aboriginal Women’s Choir, supported Four alternative tunes distilled Victorian Bar.12 education, and he looked after them Both women and our First Peoples The executive power under section by choirs from Adelaide and from the earlier processes were along the way. and their cultures and traditions, 61 of the Australian Constitution was What were the highlights along elsewhere, performed it at Ormiston put to the vote. The tune “Advance Aunty Sue did not waste her were simply ignored in favour of an used by the present government by the way? Gorge to an enthusiastic audience Australia Fair” won easily (polling at education. She became a Wiradjuri overriding “rule Britannia” and male the Proclamation made on 30 January There were many memorable of about 1000 sitting on the sand. 43.29 per cent) ahead of “Waltzing Elder and went on to become dominated view of the world. 2020 to introduce the new lyric for moments that have left their mark. The performance enjoyed prolonged Matilda” (at 28.28 per cent), with a CEO of the Brungle-Tumut Local But Dodds McCormick did not stop the national anthem. Brennan J A stand out was in 2018 when I was acclamation and applause, and a turnout exceeding 83 per cent. Aboriginal Council. In 2000 she there. He made two changes to the reinforced this approach in Davis v invited to meet with the Former Prime standing ovation. It was a deeply However, this settled only the joined the Council of the Shire of song during his lifetime to adapt to The Commonwealth10 where he said: Minister of Australia, the late Bob spiritual and moving event. The piece music. Tumut and was elected as the first changed conditions—once in 1901, Hawke, in his Sydney office to discuss was sung from the heart, In 1981 the Hawke government “The end and purpose of the Indigenous Mayor of the Shire in when he introduced a new second the Anthem Project. This was a great in Australia’s heart. appointed a committee of eminent Constitution is to sustain the 2015. The Recognition in Anthem verse to recognise the new political honour and left me with a lasting The launch attracted considerable Australians, the National Australia nation. If the executive power of project was launched by Aunty Sue structure for the country with the memory. I was met by a man who was media coverage, Australia-wide, Day Committee, to settle the words. the Commonwealth extends to the on Australia Day, 26 January 2017, federation of the Australian colonies; physically frail but with brilliance which was a great endorsement. The committee introduced protection of the nation against forces at a ceremony in Tumut, in her and another in 1907, at the behest of penetrating from the Hawke steely Then came Cathy Freeman’s fundamental changes to the character which would weaken it, it extends Welcome to Country. a Scottish academic, Professor Stuart blue eyes, sharp as ever. Responding support. She said in a media of the original song written by Dodds to the advancement of the nation RAP soon developed with an Blackie, when he made a change to the proposed new lyrics for the statement on 25 February 2020: McCormick. The four verses were cut whereby its strength is fostered. There expanded executive committee with to reinforce allegiance to Britain, anthem at that time which I showed down to two verses; all references to is no reason to restrict the executive I agree with Peter Vickery that a majority of eminent Indigenous with the new line, ”Her sons in fair to him, he said without hesitation: Britain were deleted; and the lyrics power of the Commonwealth to the National Anthem doesn’t members. These include Gungarri Australia’s land, Still keep a British “This is fantastic”. It was a remarkable were made ‘gender neutral’. For matters within the heads of legislative acknowledge indigenous existence in baritone, Don Bemrose, one of soul”. This change in lyrics occurred comment from the very person who example, the first line was changed power. So cramped a construction Australia. The minimalist change to Australia’s leading male opera against the backdrop of a naval arms introduced the National Anthem for from “Australia’s sons let us rejoice” of the power would deny to the the opening verse, just changing that singers; educationalist Dr Chris race between and Great Australia in 1984. to “Australians all let us rejoice”. Australian people many of the one word, I believe puts us on the Sarra (Gurang Gurang), a former Britain which had developed between Bob Hawke agreed to become This was suggested by Ken Warby, symbols of nationhood—a flag or right path. Queenslander of the year; and 1902 and 1910, as the world prepared Patron of the Recognition in Anthem an Australian motorboat racer and anthem, for example—or the benefit chorister, Dr Martin Haskett. for war. This was the last change to Project. However, due to ill health, he This culminated in the Premier of a committee member who still holds of many national initiatives in science, We were assisted in the early “Advance Australia Fair” until about later advised that he was compelled New South Wales, , the water speed record of the world literature and the arts.” days by the musical expertise of 77 years later, in 1984. to withdraw, along with other public on 11 November, 2020 announcing achieved on Lake Blowering in the the late Richard Gill6 who advised It well-illustrates how adaptation Use of the executive power in this commitments. Bob Hawke passed her support for the “one-word Snowy Mountains near Tumut in his on musical pattern and scan for is part of the history and genius way is supported by further High away on 16 May, 2019. change” to “Advance Australia Fair” boat Spirit of Australia.9 the lyrics. The new lines were of the song. The lines in verse 1, Court authority.11 Following some three years of from “young” to “one”to represent However, there was no change written using the original four-line “In history’s page let every stage, This was precisely the mechanism consultation Australia-wide, as far as the country’s long Indigenous to the second line to ensure it did ‘ballad stanza’ format of “Advance Advance Australia fair”, speak used by Prime Minister Bob Hawke our resources permitted, on 14 June, history. Then followed the Prime not exclude Indigenous Australians Australia Fair” where only the confidently about embracing change. when, on 19 April, 1984, the revised 2019, the lyrics of “Advance Australia Minister’s adoption of the idea, by replacing the word “young”. second and fourth lines rhyme This is a moment when the past is version of “Advance Australia Fair” Fair 2.0” were finalised and were and the proclamation of the The committee did not have an in an a/b/c/b pattern. asking something of the present—to was introduced to replace “God adopted by the Project. This was the Governor-General. Indigenous voice in its membership.

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most important national symbols will been put right. This is a foundation of the project. A new portal to our be no substitute for practical policies upon which we can build further. website has been added and is being and structures designed to make real As to building further, on 5 developed: “Indigenous Language news and views news and lasting differences to the lives December, 2020, a Wiradjuri Versions”. This includes an opening of our Indigenous citizens. Rather, young woman, Olivia Fox, sang the suggestion for legislative change the changes to the national anthem Australian national anthem in the to accommodate the many First are advanced in support of such Indigenous Eora language. This was Nation languages. policies and structures and will work the language of ‘first contact’ in the Our committee sees language alongside them. All strands need to Sydney region.14 Olivia sang her as critically important for the be woven together to lift the weight. piece before the Tri Nations rugby preservation of Indigenous culture This is not the end of our journey. union game between the Wallabies and for generating respect for its Rather, it marks the continuation and Argentina. It was a magnificent existence. To return to our theme, of a story. There is much to be done. and inspiring performance. It this is a moment when the past is As Paul Kelly sang so beautifully took discussion about the form of asking something of the present. on New Year’s Eve 2020: “From little recognition in the national anthem Conclusion by Arnold Dix things, big things grow”. to a new level. This is a positive story of our If adopted, verses 2 and 3 will This part of the RAP goal is in evolving national identity and work together with the change to its early stages, and there is much testament to our collective ability to verse 1 to provide a full celebration work to be done, both in gathering embrace positive change through of what it means to be “ONE”and translations and devising legislation community activism. what it means to be an Australian. to accommodate the hundreds of Verses 2 and 3 as proposed by RAP Our quest is to make the song whole. Indigenous languages. But now a are set out below. My congratulations But a very positive start has now settled version of verse 1 has been Why not have a complete change with plebiscite, originally proposed by National Anthem could be pursued on the achievements in implementing been cemented into verse 1 by the achieved with the Proclamation of new music? the government in 2017, this would at no cost using the executive the reform and best wishes to the Governor-General’s Proclamation. the Governor-General, RAP proposes There are numbers of potential be prohibitively expensive for power—which is effectively a Project on the journey which lies At last, a long standing wrong has to proceed with this component candidates for the national anthem. the taxpayer. It was calculated by free process, given that RAP, as a ahead. For example, the brilliant national consultants PricewaterhouseCoopers charitable organisation, offers its song “I am Australian” written in 1987 to be $525 million, made up of $160 piece with no payment for copyright. by Bruce Woodley of The Seekers and million for the same sex ballot Our other great songs can best Additional Verses 2 and 3 1 Hon Peter Vickery QC FCIArb is a 6 AO (4 November 1941– former member of the Victorian Bar 28 October 2018) was an Australian Dobe Newton of The Bushwackers, itself, $66 million to fund the “yes” find a place, as they do at present, as Proposed by the Recognition (1978-2008) and Judge of the Supreme conductor of choral, orchestral and has stood out as an alternative. The and “no” cases, and $281 million in national treasures commonly sung in Anthem Project Court of Victoria (2008-2018). He is operatic works. He was known as a lyrics are filled with many historic lost productivity (with $18 million alongside the national anthem on a Senior Fellow in the Law School, music educator and for his advocacy for Melbourne University, a lecturer at the music education of children. and cultural references and is much presumably for contingencies). occasions of celebration. The stunning Verse 2—Our People University of Technology, Sydney (UTS), enjoyed on public occasions. The In the case of the national anthem, performance by Delta Goodram of For sixty thousand years and more and conducts practice as an arbitrator 7 Archaic for Scotland. song became very popular, with the if a change to the tune was to be the new national anthem alongside First peoples of this land and mediator. 8 Archaic for Ireland. copyright subsequently acquired by considered, there would also be “I Am Australian” on New Year’s Eve Sustained by Country, Dreaming told 2 Professor Arnold Dix is a Barrister 9 The world water speed record achieved Woodley’s company in its entirety. very significant additional costs 2020, bears witness to the success By song and artist’s hand. (Victorian Bar); Scientist (geology); by Ken Warby on 8 October, 1978, which Adj Assoc Professor of Tunnel But in the contemporary context, a associated with the vetting of public of this approach. It is supported by Unite our cultures from afar he holds to this day, was of 275.97 knots Engineering, Tokyo City University; (511.10 km/h; 317.58 mph). As a child, national anthem for our country has submissions and selection of a new the great songs of other countries, In peace with those first here and Vice President of the International Warby’s hero was the British champion a different job to do beyond being tune or tunes (with accompanying such as the United States, where To walk together on this soil Tunnelling Association (ITA). Donald Campbell, who died in the Lake a popular song. It should provide new words) following a shortlisting “This Land Is Your Land”/ “America Respect for all grows there. 3 Judith Durham AO is an Australian District, England, attempting to break the record in 1967. reinforcement for the Australian process, prior to a finalised list being the Beautiful” was sung by Jennifer From everywhere on Earth we sing, singer, and musician who became the lead singer of the Australian 10 (1988) 166 CLR 79 at [13]. public, and a proud welcome to put to a national ballot conducted Lopez at the inauguration of President Advance Australia Fair. popular folk music group The new citizens, of the key qualities as a plebiscite. Taking into account Biden, accompanied by Lady Gaga Seekers in 1963. In 2006, Judith Durham, 11 See Victoria v Commonwealth (1975) Verse 3—Our Values 134 CLR 338 at 397; R v Duncan (1983) of our great country, its people and acquisition of any copyright which is singing the national anthem “The Star Kutcha Edwards and others launched In times of drought and flood and fire their pioneering total re-write lyrics for 158 CLR 535 at 560; R v Hughes (2000) its values. privately held, expenditure north of Spangled Banner”. And Britain, has 202 CLR 535 at [554-555]; and Pape v When all but hope is gone a new Australian national anthem “Lyric Further, and substantially, $600 million could be expected. no shortage of patriotic songs such for Contemporary Australia”. Federal Commissioner of Taxation (2009) Australians join with helping hands 238 CLR 1. a change of music in the song Frankly, I would rather spend the as “There’ll Always Be An England”, And wattle blooms again. 4 The Hon Michael Black AC QC would suffer from the drawback money on constructive programs to sung with traditional gusto at the practised at the Victorian Bar from 1964 12 Sir was admitted to the Tomorrow may this timeless land Victorian Bar in 1949. of massive cost. It would require a advance Indigenous welfare devoted Proms at Albert Hall each year. until 1990 when he was appointed Chief Live for our young to share Justice of the Federal Court of Australia plebiscite to reverse the outcome to health, education and tackling 13 SBS News, 14 june 2019, Maani Truu. What lies ahead? From red-rock heart to sun-filled shore (1991-2010). Peter Vickery was one of of 1977 which selected the tune incarceration rates. his readers. 14 “Eora” was the name given to the My first point is that symbolism can Our country free and fair. First Peoples of the Sydney Basin by “Advance Australia Fair”. Based on On the other hand, further positive 5 “Nine Miles from Gundagai: The Dog never be a substitute for substance. Beneath the Southern Cross we sing, the early colonists. Eora is commonly and the Tucker Box” is a poem by Jack costings for a same sex marriage change limited to the words of the referred to as “the Sydney Language”. The changes proposed for one of our Advance Australia Fair. Moses, published in the 1920s.

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panellists drawn from the media, politics and the law will address the impact of the pandemic on the news and views news Australian federation both politically and constitutionally. They will be followed by sessions on the physical and emotional impact of uncertainty on our profession, and a focus on 2021 National Conference RE-EMERGE 2021 ethical and cultural issues currently confronting the judiciary and the Matt Howard SC, President ABA Bar, including sexual harassment. In the afternoon, streamed sessions will drill deeper into issues of law and practice for the criminal and W Melbourne common law, commercial and tax Bars: understanding the psychology

of juries; clearing the back-log; how w hotel image reproduced with permission of w melbourne the Hon Andrew Bell, President of unique challenges to our college the Bar can improve communicating the NSW Court of Appeal, the Hon and the administration of justice. By with corporate counsel; essential “We’re designing a conference Patricia Bergin, who most recently choosing Melbourne as the host city issues in data protection; and insights that brings together leaders in our conducted the NSW Casino Inquiry, for this landmark conference, the into topical issues in taxation law. profession, politicians, journalists, Prof Sharon Lewin AO, Director ABA is recognising that impact and The conference day will conclude and professionals from academia, of the Doherty Institute, Fiona showing its support for our Bar. with sessions addressing the impact healthcare and mental health to McLeay, the Victorian Legal Services of virtual courts on open justice, and We hope to see as many members of participate in a series of keynote Commissioner and CEO of the VSLB, reconciliation with Australia’s First the Victorian Bar at the conference and panel sessions over the course Ken Adams, General Counsel of ANZ Nations’ peoples and the proposal for as possible, not only to welcome of three days to drill down into the Bank, and many other panellists, an Indigenous Voice to Parliament our interstate colleagues, but also issues that affect the Australian including sitting and retired judges enshrined in the Constitution. to showcase our resilience and Bar in 2021 and beyond”, says and barristers. RE-EMERGE “We will be inviting participants continuing excellence. Conversation Matthew Howard SC, President of 2021 will capture the energy, the to reflect on the really big issues Quarter, SLV. the ABA. “There’s a good mix of innovation and the endurance of confronting the Australian Bar as Please save the date: sessions that discuss black letter our profession. we emerge from the pandemic, with law across all practice areas, ethical RE-EMERGE 2021 concludes ABA National Conference rom the spectacularly the media, from across Australia speakers of unrivalled expertise,”

and reputational issues for the Bar, old melbourne gaol image reproduced with permission showtime events group with a panel “War Room”, presented RE-EMERGE 2021 renovated halls of and internationally. Matt Howard SC adds. “The Gala and, of course, the impact of the by Dr Matt Collins AM QC, Live and in-person in Melbourne the State Library of In the Conversation Quarter of the Dinner at the new W Hotel in pandemic on our profession, the Vice-President of the ABA and and fully-remotely for those unable Victoria, to drinks in State Library, RE-EMERGE 2021 will Melbourne on Friday evening will courts and our clients. This will be Chair of the Conference Steering to attend. the Old Melbourne begin on the afternoon of Thursday 16 cap a formidable program.” an unmissable conference event Committee. In a cryptic teaser, Gaol, and a Gala September with a keynote address by There will be further robust debate Thursday 16 September for 2021. We’re delighted that we’ve Dr Collins foreshadowed: Dinner at the new W Hotel, the 2021 the Hon Susan Kiefel AC, Chief Justice on the morning of Saturday 18 Welcome and keynote speakers from been able to bring distinguished ABA Conference will debate the of the . The September, including a “National Going Viral (Again) involves a panel 2.15pm—State Library of Victoria. speakers together.” Fchallenges facing, and the enduring Chief Justice will be followed by legal Cabinet of Attorneys-General”; of high-profile participants, including Welcome drinks from 5.30pm—Old

role of, the Australian Bar in three futurist, Professor Richard Susskind The Old Melbourne Gaol. a judges’ panel, in association with journalists, politicians, barristers and Melbourne Gaol. iconic Melbourne settings. OBE, reflecting on access to the law, the Australasian Institute of Judicial a leading expert in infectious diseases, Bar Association dinners from RE-EMERGE 2021 will be the first remote courts, and how accelerated Administration, discussing the view being presented with and asked to 7.45pm—Venues to be announced. national gathering of the Australian innovation is re-imagining the of remote advocates and remote respond to an imagined scenario, that Friday 17 September Bar for more than 18 months. The provision of justice. The Hon James advocacy from the perspective of will unfold in myriad unexpected ways. Full-day program from 9am—State conference is an opportunity to Allsop AO, Chief Justice of the Federal the Bench; discussions about the Prepare to be provoked, entertained, Library of Victoria. re-engage with colleagues, reflect Court of Australia, will provide an lived experience of disability in our illuminated and, perhaps, just a little Gala Dinner from 7.30pm— on having endured a momentous Australian perspective. The ABA will profession—perhaps the forgotten bit terrified. slv image reproduced with permission showtime events group events with permission showtime reproduced image slv W Melbourne Great Room. year, and participate in important then host welcome drinks at the Old diversity boundary; and a plenary The choice of Melbourne as the discussions about the future. Melbourne Gaol, before a number Friday 17 September will feature session chaired by the Hon William Saturday 18 September location for the conference was In a full program over three days, of Victorian Bar Associations hold a full day of plenary and panel Alstergren about the enduring legacy Morning program from 9am deliberate. While Bars across RE-EMERGE 2021 will bring together dinners to welcome their interstate sessions. After an opening speech by for the courts and the profession of concluding at 1.30pm—State Library Australia struggled with the impact leaders from the judiciary, the Bar, colleagues and wrap up day one of the Chief Justice of Victoria, the Hon the year that has passed. of Victoria. of the pandemic and restrictions, the the profession, politics, academia and the conference. Anne Ferguson, household-name Participants will also hear from For more information and to register 111-day lockdown we endured brought Justice Gordon of the High Court, visit austbar.asn.au/reemerge2021

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“one step at a time, one step at a Introspectives time, keep walking”. Thousands of On a day that was a Saturday, my back kilometres would ultimately pass so to help stay buoyant in spite of the seized. The walking stopped. idleness of locked time. festive season, they emptied again. an admission into hospital. My Children, wild and bewildered with This agitated some concern. Was exhausted body had broken down. cabin fever in a space big enough history about to repeat? I continued Paradoxically, rescuing me from for five but not all at the same time, to walk and suckle the safe trappings wherever I was heading. every day, was no different to the of my familiar suburban routine. Change had finally arrived. First, happenings at the neighbours and at Beyond the four walls of my by revelations when laying still on the lovely family with twins across residential address, I managed an a hospital bed, waiting for doctors the road. What made a difference ‘in-person’ in January. The flow and to deliver some definitive advice were the whispers I was sharing with delivery was not quite the same as on the direction of my fate. Next, myself, at myself and by myself. before, perhaps corrupted by the by gathering the many insights and I was reading everything from effluxion of empty time, or at least importing them into my daily life. creative activities for children in the that is what I thought. Even if fanciful Action unquestionably the enemy backyard to what a joy the unique or unfair, there was ammunition of thought. opportunity had brought to spend for harsh judgement. Pressure I have created a space where time with family. Then I walked past mounting in the absence of work, creativity and well-being are playgrounds with crime scene ribbon became pressure persisting for want flourishing. Many things remain strapped around the swings and of performance. Freedom is to live uncertain, yet anything is possible. slides. This was reality, no matter how without fear. I was still living without Once a prisoner of circumstance, many squishy marshmallows charred freedom. now unshackled from the chains that over the fire near the tents pitched in The snap lockdown was home to fastened with lofty expectation. They the backyard. Watching Schitt’s Creek the knockout punch. “Will everything now dangle by my side. Perception provided some respite. be ok?” were the first words I the key, I have opened my mind I kept walking, kept moving, kept murmured as I became aware of to positive ideas and at the same listening to podcasts and checking the full force of nervous energy time brushed aside self-doubt. The the court lists to roughly gauge how welcoming me into the dark hour pandemic was so bad but it gifted much work was out there. No matter of each dawn. I kept walking, kept me a new form of freedom, of a kind CHOICES how far I walked, I was paralyzed cooking and kept the house tidy. that targets my immediate needs by fear of the unknown. For many Clinging on to daily basics that I and generates greater balance. ASHLEY HALPHEN months, never was I present and could control. It is allowing me to reach towards a never was I in the present. Mustering March was around the corner, level of authenticity that is making was discharged from the Alfred Hospital any and all strength to be at the the same month as last year when me proud. on Tuesday, 23 March 2021. starting blocks when the new normal the saga began. What happened in I am well, even thriving… It was so bad but good. ushered into being. “Be there. Just be between as time dawdled and months I am lucky. I’ve been meaning to delve into my there—ready/willing/able.” passed like a streak of speed? I don’t walk anymore except memory box but blocked, creative pathways And I kept walking for many hours Once scaling mountains with the when I need to catch the tram! frustrated endeavor. I’ve not so much made a day. My winter stride wore down to invincible air of a teenager, I was the space now but the space has made me. Anyway, Ashley has extensive experience as a shuffle by spring, but never going now navigating a minefield, tiptoeing if all you really own is what you have to give to others, a trial advocate in both the Supreme backwards. I used the time to reach between moments. I tried desperately I should retrace recent steps and share the footprints Court and County Court of Victoria. out and connect. Gripping the phone to accept disappointment as finite with Bar members. He is an accredited indictable offence as though making a 000 call, I prayed but never lost sight of infinite hope. What follows speaks for itself. specialist and a Victorian Legal Aid I to hear that others were on the Fragile, I stayed constant in a rigid My status as a patient lasted long enough to miss Criminal Trial Preferred Barrister. same sinking ship, only to discover routine waiting for change. Days the transition from summer to autumn. As we Ashley is a long-standing member otherwise, “I’ve been lucky, I’ve had a passed but not much else. drove home, I noticed bundles of leaves scattered of the Criminal Bar Association. constant flow of work”. On a day that was a Saturday, my everywhere. The hazy brown collaborations leapt out He received the Susan Crennan AC November came, Christmas passed back seized. The walking stopped. at me. I had not revelled in the marvel of nature for a QC Victorian Bar Pro Bono Award for and then 2021 submitted itself to the I was bed-ridden and in and out very long time. In fact, with all the sights, smells and his volunteer work in death penalty potential for new horizons. What had of sleep. Sometimes the Panadol sounds impressing, I felt the sensations of a long term jurisdictions in the United States; for gone was nothing compared to what worked, sometimes it didn’t. My body prisoner on day release. assisting in access to justice issues in would be. I was not going to make and I were still. For the first time in a Rewind. For the longest time, I was standing upright West Africa; and for acting on behalf that start. year, peace and calm. It was heaven. but looking down and listening to podcast after of indigenous defendants in remote Before chambers resumed in Then the coughing came. Followed podcast, able to only hear my voice repeating, parts of Northern Australia. earnest in the weeks leading into the by a negative COVID test. And finally

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LEAR JOHN HEARD NING t is funny to think of all the ways you can fail. For Introspectives barristers who work not to fail, who are paid to be the best, to know, to be succinct and persuasive, failure is a tremendous and daunting thing. Most of us avoid it. to I am teaching myself to embrace it. I do this because I figure that you can’t get better at something without practice. And you can’t be a good barrister without practice. And you can’t be a good anything really without trying. Yet we are taught (at least I was) to be sui generis, self-made, complete and whole from the womb. Look! It’s a lawyer and they’re perfectI and they never will not be perfect. It’s such nonsense and yet we eat it up. Not me—I’m trying things I’m not good at. I tell people I’m having f a go. I started with knitting. My dad showed me how. This was not odd in my family. My street kid, orphanage surviving, tattooed, silent generations Indigenous father gently and carefully showing me and my twin how to loop the yarn and purl one, stitch whatever. He’d a puff on cherry tobacco and knit, or make leather stuff, or show me how to tie a hook to a fishing line, or gut a fish, or yeah—how to knit a beanie. He said he’d learned in the ‘70s. My dad had done all sorts of things, he lived a nearly unbelievable life, so we didn’t think much of it—and he could definitely knit. It was only when we turned up at my pretty rough country primary school and the local kids saw us with our knitting bags, crafted lovingly by my Ukrainian Australian grandmother (mum’s mum) out of corduroy and scraps, that we learned it was a bit weird. We didn’t care—dad didn’t care. I still don’t and I still knit when I have too much nervous energy. And I don’t mind if I drop a stitch or it’s a bit wonky. Dad would say that has “character” and admire whatever crap we’d spun out. His vibe was that people who made i things with their hands that were original, that had character, that had “cool”, themselves had character and were close to attaining “cool”. Dad was always trying to get us, and mum—who is distinctly not “cool” and never had it—to be and to have some “cool”. Dad was “cool”. I once saw that man find a nest of baby red-belly black snakes in a tree we were leaning against while yabbying. He stood up, told me calmly but firmly to get out of there, and then proceeded to deal with the mother snake and get us safely away with all of our stuff. He also tried to get me to be a star footy player, but my heart wasn’t in it, which drove him crazy. “You have such natural talent, l look at you go Bungee” he’d say as I sprinted here or kicked there— but it was rugby I was obsessed with. One afternoon, in our country town near the NSW/Victorian border, where we got all of the codes and lots of sport on TV, we randomly switched over to a rugby match. There was running and scrummaging and tackles galore, and next thing someone had his eye popped out and I remember seeing it hang from a thread while the poor fella held it in—and I was hooked. What was this wild, manic, completely real and compelling sport? I wanted in with rugby, but I played footy until I was about 15 or so instead, going up the Australian country town ranks from

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“Be like a cat” and step lightly. I can’t think of a more need to find your balance and get on, then get up, then stay on. And I think helpful piece of advice for a day in Court. now about how my Byron Bay surf coach told me to “be like a cat” and

Introspectives from the Wallabies (sadly too often people investigating my dad’s file step lightly. I can’t think of a more lately) down to me playing at some from his orphanage days. They’d helpful piece of advice for a day in scrubber pitch in the outer suburbs previously sent a few unseen pics of Court where you can prepare for X could and probably would drop the dad during those vulnerable days for and Y and all you spend your time ball, then I actually dropped the ball him and I was shocked. It was like doing is A and B. Get on, get up, stay far less often. Then I relaxed. After he was reaching out and reminding on—be like a cat, step lightly. I relaxed, I seemed to have glue me again, as he had so many times, Now when I paddle out, in that hands—I couldn’t drop the ball. that “cool” is about having a go and saltwater that my dad taught me was Which brings me to surfing and being open to failure. He never tried the “best medicine”, we do it together being a barrister. I am turning surfing, but we always meant to. It in a way. Just like knitting and all 40 this year. Dad passed away in felt like his approval—for surfing, of the rest of it, I feel him with me February 2020. It still hurts. I am for the leap into the void of the telling me to keep my “cool” when I also physically a bit broken. Like so Bar, for how we were managing the get a brief and it’s a bit hairy. I am so many of us club rugby people, I have pandemic, for all of it. grateful to dad, grateful for dad, and a stuffed shoulder and I am semi A few weeks later my first proper grateful that I get to surf. And I am (probably permanently) retired from briefs came in and I was off and grateful that I got to have a parent the pitch. Last year I came to the Bar. barristering. I could almost feel the who told me it was okay to do things Everything happens at once. board sway under me as I did it—that like fall off and learn to fail and knit. I have been invited to play at the openness to failure making me a I’ve been lucky enough to learn along International Gay Rugby World better, more careful, more creative the way that that is really the only Cup in Ottawa in 2022. As tempting and self-aware advocate. The way you way you get anywhere near perfect. mini midgets through Auskick up to and won Head of the River one year in a massive bowl of drunk, howling as it would be to play and tour in juniors then under-16s with a bunch before coming up to the college. All and joyous French people singing a Bingham Cup for Australia, it of boys and families who became like of a sudden, the place was rowing La Marseillaise in a haunting, full seems ridiculous. Being open to second families—and a whole other mad and I was semi-forced to get throated way, his blood ran pure with failure is one thing; putting my bunch from our opposition teams involved. I loved it, I was terrible at the rugby fever I’d caught as a kid. body on the line at this age seems who were our mortal enemies. Footy it, but I was happy to fail and then Back in Melbourne, he joined the unnecessarily reckless. was one thing dad lost his cool over, I rapidly became good enough to be local gay and inclusive rugby team Surfing doesn’t. It’s hard and I’m and unfortunately, I learned to be picked to row at three-seat in the set up by the Melbourne Unicorns terrible. I’m hooked. I have leg cardio a perfectionist about my football. It 2nd VIII. It seemed all of the learned in Toorak and they found out I could fitness but not arm cardio fitness didn’t help. The more I tried with that perfectionism slid away. I had fun. kick and pass and run. That started which is not great for paddling shame-oriented and fear-oriented Some of the homophobia remained, a nearly five-year involvement with out, or even staying on the board. vibe the worse I got. including internalised (I only came club rugby, culminating in a 20–0 But taking a foam board out at I say I played footy until about out a couple years later). But I win at Ballymore at the Purchas Cup Freshwater Beach above Manly in 15 because when I was around 13, remember rowing down the Yarra in (the “gay Bledisloe”) in September the depths of Covid-19, when I was in Year 8, I remember being one of the Intercollegiate Regatta thinking 2019 playing run-on number 14 for stuck in a different city and state the footy boys with all of my mates that my strokes had character. Dad an invitational Barbarians side. After and I had no idea if anyone would until one of them decided I was gay. was over the moon to hear about it just an hour or so of training together, ever brief me, seemed like the sanest That started a couple of years of all, no matter that we lost our first just after meeting each other, that thing to do. I’m learning. I’m okay bullying that ended with me quitting heat and were doing “boat races” of motley side of players from all over to fail. At Freshy I flopped around the sport. It seemed that the worst, a different kind in the shed by 9am. the world gelled and we progressed and fell off so much an older couple laziest boy on my under-16s team— Later, I gave up on sports, although to our tier grand final. It was wild. walking by stopped and pointed and the mighty Imperials—was suddenly I kept keen on rugby. I was never The whole time I was involved tried to give me pointers from 100 higher in the pecking order than allowed to play as a kid; that was one with rugby I kept in the back of my metres away. I also posted a photo on me and that seemed totally unfair. sport mum said was 200 per cent out mind, “it’s okay to drop the ball, it’s social media that day in my useless So, I wasn’t giving my energy to that of bounds, but it still thrilled me. okay to miss the pass”. Rugby players leaky borrowed wetsuit with the team anymore. Changing teams was On a trip to Paris with my ex for are obsessed with dropping the ball. hashtag “kookiestkook” and I have unthinkable. his 21st birthday, I bought tickets I am no sports psychologist, but I this smile on my face. It was magic. I rowed at college at uni but for a Six Nations Scotland v France think it is obviously shame oriented Later, as my partner Mark was that was mainly because there match at the Stade de France. I had to and deeply ingrained. I found that if packing up, and while I was sitting was a bunch of Xavier boys who’d drag him along. But once he saw that I kept my “cool”, if I allowed myself on the beach there feeling sore apparently pulled off a rare feat storied stadium, and we were seated to fail, if I recognised that everyone and happy, I got an email from the

66 VBN VBN 67 An empty Kuala Lumpur Without naming names, Introspectives airport, the in-person Arbitrators’ Diploma I know a number of becoming just another casualty of the pandemic. adept lawyers who failed the exam on their first attempt. Introspectives International arbitration

to a court’s judgment, there are DURING COVID-19 particular demands as to form and substance that make it different. MATTHEW HARVEY While an award should be clear, concise and reasoned, it should y the middle time to undertake the Chartered contain a brief description of the of February Institute of Arbitrators’ award writing arbitral process and hearing. It 2020, I had course. However, since I was only should not be discursive and should resolved upon an Associate of the Institute and not canvass issues that were not put a plan. I would because some extra study never to the arbitrator. travel to Kuala hurt anyone, I decided to upgrade Before we undertook our last Lumpur to undertake the Chartered my membership from associate tutorial, Tom Clarke of our Bar Institute of Arbitrators’ Diploma of to member by undertaking the produced a draft award and, I must International Commercial Arbitration Accelerated Route to Membership say, it was extremely well written. at the Asian International Arbitration (ARM). I would then upgrade my After completing our tutorials, a BCentre. This course had come highly membership from member to fellow. take home exam was provided to us recommended by a number of The ARM focuses upon the law, in two parts. The first part enabled colleagues. I had space in my diary. practice and procedure of international us to write approximately half of the I had sorted out accommodation. commercial arbitration. There is a award. We were given about a week Then Covid hit. pre-course assignment worth 20 per to prepare this. The second half of My interest in international cent. Through Zoom, I attended the the exam was given to us to complete arbitration has developed from two-day workshops and tutorials. within 48 hours. This information my maritime law practice. I have The materials for the ARM enabled us to complete our award. appeared in a number of arbitrations comprised a lever arched folder of The assessment was challenging involving cargoes and shipping materials, double sided. I recommend and, I think, a fair assessment of contracts. This ultimately led into that you print them because it gives what we had learned. Once you have other commercial disputes. About the opportunity to mark up, use Post-It passed the award writing exam, then 18 years ago, I joined the Institute Notes, and digest the information you can apply to become a fellow of of Arbitrators and Mediators more thoroughly. Dr Vicky Priskich the Chartered Institute of Arbitrators. Australia (IAMA) and completed was the course director of the ARM. If you are keen to work in their Professional Certificate in She was assisted by Albert Monichino the arbitration field, I strongly Arbitration. At the time, IAMA QC and Dr Andrew Hanak QC. recommend that, at the very least, appeared to be the premier The tutorials were relaxed, you complete the ARM. A number of arbitration organisation in Australia. thought provoking and very useful. our colleagues have already done so. Some years later, the law of Vicky, Albert and Andrew spent I also recommend that you complete domestic arbitration changed upon a lot of time with us discussing years’ experience are eligible to therefore, a quick search through the With these ominous stories, the award writing course and become the states’ adoption of the UNCITRAL all manner of things arising out sit an exemption test. To pass the materials will provide you with the I undertook the award writing a fellow of the Institute. Obviously, Model Law on International of arbitration. It was a practical exemption test, you must achieve information you need. course. The course director was if you want to become an arbitrator Commercial Arbitration. By this and interesting course. at least 70 per cent. My advice to a Having passed the ARM take-home Carolyn Kenny QC, who was assisted this is bordering on the essential, time, the Chartered Institute of After finishing the tutorials, person sitting the exemption test is exam and the law of obligations by Vicky Priskich, Albert Monichino, particularly in the international field. Arbitrators appeared, at least in my we then sat a take-home exam, to give themselves plenty of time and exemption test, I was in a position to Andrew Hanak, Gordon Smith and But for barristers wanting only to eyes, to have become the premier comprising four essays on topics not to rush through it. It is an online, undertake the award writing course. Malcolm Holmes QC. There was, work as counsel before arbitrations, arbitration organisation in Australia. taught in the ARM. To pass, you multiple choice test and, while I The award writing course is not again, a lever arch folder of materials. I think it is useful to know what an It also had the advantage of being had to achieve at least 65 per cent. would expect any barrister at our Bar for the fainthearted. Without naming I again recommend that you print arbitrator is wanting to know, so you an international organisation with Thankfully, I cleared that hurdle. to understand the law of obligations, names, I know a number of adept them, for the reasons stated above. can assist him or her in preparing international recognition. Next, in order to undertake the the multiple choice test does address lawyers who failed the exam on their We were required to attend three a binding award. As lock downs began and I learned award writing course, I had to matters of foreign law. But do not first attempt. There are also stories of full-day tutorials. The tutors and materials were to work more efficiently from home, pass a module called “The Law fear. You are given the materials for retired judges who, for one reason or Writing an award is quite a excellent. I cannot recommend these I thought it would be a good use of of Obligations”. Lawyers of some the law of obligations in advance and, another, failed this exam. challenge. While it bears similarities courses more highly.

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Introspectives My close encounters with Nobel Prize winners GRAHAM ROBERTSON

y late father-in-law, solidarity movement, who helped to bring down the economist Charles Iron Curtain. Historians say he played a central role in “Ref” Denton Kemp dismantling Soviet communism towards the end of the CBE (who was born cold war. on referendum If you are too young to know of the incredible story of day 1911 and was this humble auto electrician, there is much material on nicknamed “Ref”), became one of the founders of the the Net and many books on his life and achievements. Institute of Public Affairs. In 1976 the IPA invited the Lech Walesa won the Nobel Peace Prize in 1983, and 1974 Nobel Prize winning economist Professor Friedrich when I met him he had been the first democratically von Hayek to Melbourne to speak. elected President of Poland until 1995. MThe Professor had written a book published in 1944 This encounter had a number of interesting aspects. entitled, The Road To Serfdom, which became very First, Murray Thompson rang me and told me I had to be influential (but despised by state socialists). He made at the St Kilda Marina at 7am on the day of the dinner. it clear he was not criticising the welfare state. In brief, Why? I asked. Well, the President runs a fishing show in Hayek warned of the danger of tyranny that inevitably Poland a la Rex Hunt and Rex is taking us all out fishing! results from government control of economic decision Fortunately for me, the president was too tired from making through central planning. travelling and it was cancelled. The next thing I had to hard to land.” To which Lech replied, via his interpreter, As it happened, Professor von Hayek and his wife do was learn some Polish. To that end I contacted Ivona “But yes Mr Robertson, how does it eat?”. I then went stayed with Ref and my mother-in-law, Betty Kemp, at Clarke (wife of our colleague Marcus Clarke QC) for on to express some personal observations about Lech their home Pinjarra in Mt Macedon. At this time I also instruction. I cannot recall all that Ivona taught me, Walesa. I said I clearly recalled my wife and I watching lived with my wife and young family lower down the but I do remember the phrase for, “How are you going?” the news on the day he climbed the wall of the Gdansk mountain on a hobby ‘farm’ (55 sheep and a horse) called Would you believe, it is “Yuk Shemush”! She also taught shipyard urging his comrades to strike and saying to my “Robin Hill”. On a Sunday afternoon during their stay, me how to pronounce “Kosciuszko”. wife, “the communists will kill him”. my in-laws brought Professor and As most Australians know, Mt Who would have imagined what happened Mrs Hayek down to Robin Hill for Kosciuszko is Australia’s highest subsequently? I went on to recount Polish contacts with afternoon tea followed by a visit to mountain, but they might not know Australia: Count Strzelecki after whom the Strzelecki the Barringo Wildlife Reserve, where that it was named by another Pole Ranges in Gippsland are named and who named our I introduced them to Kangaroos and the explorer Count Paul Strzelecki highest mountain; the great seafarer and writer Joseph Koalas, etc. Given Law is my field, in in 1840 after the Polish hero Tadeusz Conrad who arrived aboard ship in Sydney as an ordinary the presence of a Nobel Prize winner Kosciuszko (qv). You do not say seaman in January 1879; a priest named Karol Wojtlya I tried to be erudite on the subject of “Kozzieosko” as we do; the correct who earlier had come to the Ukrainian Catholic Church Australian fauna and sheep! pronunciation is “Koshshushko”. in North Melbourne, and who in due course became Well, time passed, and we returned Having been educated by Ivona, Lech Walesa’s staunch supporter and defender, none to Melbourne after the 1983 bush when I welcomed Lech, I said “Yuk other than Pope John Paul II; and finally, one of the most my ear, “Mr Robertson, you said some very nice things fires and I came to the Bar in 1984, Shemush Mr President”, which courageous men of the 20th century, Lech Walesa. That is tonight about the President and the Polish people, but I never thinking that I would ever he acknowledged, so I think my about all I can recall saying before other speakers then want you to know that there was $80 million CIA money meet another Nobel Prize winner. pronunciation was ok. The president’s took over. I can say that after the dinner Ivona and her behind him!” I thought to myself the SVR (successor to As fate would have it, in 2003 I was interpreter was a Collins Street dentist parents had a whispered conversation in Polish with the KGB) never rests! approached by Murray Thompson, who did a fine job. I next said, “Mr President and Mrs Walesa for about 20 minutes. The visit ended very early next morning at their hotel then MLA for Sandringham, to MC President it is a great pity you were I recall joining in and I recall Mrs Walesa telling us that where Murray and I farewelled them on their trip to a dinner on 31 October at Parliament too tired to come fishing with us this she had her husband’s overnight bag permanently packed Rome, where they were meeting up with Pope John Paul House, Melbourne. The dinner was A signed edition of The Book of Lech Walesa. Inscription morning because out there in the Bay given that he was so frequently carted off to jail. The II. For my part it was a unique experience to meet with for no lesser person than one of my reads: ‘Above is the signature of Lech Walesa, who we have a fish which is just like you. dinner went very well and when it was over, as I walked a truly historical figure to whom we in the west—in my personally signed this book for Graham and Rosemary heroes, Lech Walesa (pronounced Robertson at Parliament House, Melbourne, on Friday It is called the snapper and it puts up down the narrow corridor of Parliament House, a little humble opinion—owe so much. I am indebted to Murray “Walensa”), leader of the Polish 31 October, 2003 on the occasion of a dinner in his a great fight just like you and is very man who was about my shoulder height whispered into Thompson (a lawyer) for the opportunity he gave me. honour at which Graham was Master of Ceremonies’.

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He had confidently jaunted in wearing street clothes. accused would be incarcerated in the Louisiana State Prison His sunny disposition and clothing distinguished him system for three weeks pending trial. Defence continued to An encounter with from the other black men who were all wearing orange argue with the judge. The judge threatened him by waking prison garb. He addressed the judge to the effect that he the sheriff. The defence attorney decided that discretion Introspectives wanted an adjournment and that his lawyer had told him was the better part of valour and withdrew—obviously he an elected judge in it would be automatic. It turned out that the judge was preferred to exit by the big door behind him rather than the not much interested in engaging in a discussion about small door beside the judge. the Deep South an adjournment. Instead, he asked the man whether The next case was called. There was no accused or he’d pass a drug test. The judge then simply ordered the defence attorney present and certainly no jury. The ROBERT LARKINS sheriff to take the man down to the ground floor for an judge looked at the docket then asked the assistant DA on-the-spot test. The judge made it clear to the man that prosecuting to start the trial with her opening address. n the morning of Friday 27 July, 2012, I if he failed the drug test, he would be going straight to The assistant DA said she was not there to open the was in New Orleans being shown around prison pending the hearing. There would be no lawyer, no prosecution case but to seek an adjournment. She told by a lawyer friend. Her hospitality submissions and certainly no adjournment. the judge that the prosecution had been having trouble INSET: Introduction from The Times-Picayune, 28 July 2012 edition extended to taking me to a law court. I was still computing what I’d just observed when my locating their only and key witness. She asked for a The District Criminal Court, Parish friend moved me on to another courtroom. warrant to be issued with a material witness bond. The office?” ”No”, she replied truthfully. He looked at me. of Orleans, is a grand building. The The entrance to the second court was also through a judge reverted to his mantra, “You are manipulating the “Where are you from?” I was still standing and replied, enormous size of the place is a reflection of the booming large door. Inside, the court looked much the same as the system. Start the trial now by commencing your opening “Melbourne, Australia”. He gave a dismissive sneer and economy that crashed the year construction was first except there were no manacled prisoners. This may address!” “I can’t judge, there is no accused in court, no said, “Never heard of it”. completed in 1929. It would seem that the architect have accounted for why the sheriff was asleep. He was defence attorney and no jury!” “So, you refuse?” “Yes, I We resumed our seats. My friend whispered to me, was briefed to design a building that would overawe not just asleep but asleep in classic Western style with his do”. The judge’s eyes then looked along the bar table to “I’d rather leave by the big door”. I said, “It’d be a pity Othe public rather than make them feel comfortable that chair tipped back against the wall and his head slumped the next prosecutor. This gentleman suddenly had his to trouble the sheriff”. justice is accessible. The façade references the Parthenon. forward on his chest. We seemed to be in a mention court. head down and was busily shuffling papers. “Are you On the following Sunday, 29 July, 2012, I was on a plane If you look up from the broad front steps and direct There were three prosecutors at the bar table and prepared to start the trial?” “No judge, it’s not my case”. heading home and picked up a Saturday paper at the your gaze to where the Elgin Marbles were once each was apparently concerned with their own The third prosecutor was then asked and not surprisingly, airport. It was The New Orleans Times-Picayune. There on attached to the original, you’ll see inscribed separate matter. also declined. “Sheriff! Arrest all three prosecutors for page 3, to my relief, was an account of the judge’s actions these comforting words: “THE IMPARTIAL We took our seats as the next case was contempt and take them to the cells!” We then witnessed the previous Friday. I was relieved to see it in print ADMINISTRATION OF JUSTICE IS THE being called. The defence attorney stood the extraordinary sight of three prosecutors being made because I thought without some sort of corroboration, no FOUNDATION OF LIBERTY”. A walk and addressed the judge noting that this to stand, before being led out of the court by the sheriff one would ever believe me. It seems that in the afternoon around outside the building revealed a was a hearing to set a trial date. The judge through the small door where they would be incarcerated. following our visit, the District Attorney had attended the side door more ominously flanked with the said he had the docket and the docket said I had to feel sorry for the sheriff, he was now being run court in person somewhat concerned about the welfare words “LAW” and “ORDER”. Once inside, it was listed for trial that very day. “So, get off his feet and getting next to no shut-eye. of his staff. He made submissions to the judge and as a the vast interior is in white marble. The started.” The defence disagreed and noted that The sheriff was only gone a few moments and by the result, all three assistant DAs were released that evening. overwhelming effect is to make the individual the assistant DA prosecuting the case concurred time he returned, the court seemed to have emptied. feel diminished. that the listing was not for a trial but to set a date The judge surveyed his domain as his eyes scanned the Postscript The visit was my first encounter with a system where for the trial. The judge replied, “You’re manipulating the now near empty court room. His honour’s eyes stopped New Orleans has one of the highest incarcerations rates judges are elected. There are 12 judges of the District system”. Defence responded that the judge’s docket was at us. I’m thinking, no he wouldn’t would he, surely not in the USA, which is quite an achievement in a nation Criminal Court, Parish of Orleans. All are elected and in obviously a clerical error and that all who work at the court audience participation? where harsh mandatory sentencing is too often the norm. 2012, men dominated. Anyone who has held a law ticket know that such errors are an only too regular occurrence. “You two, what are you doing in here?” We both rose However, since 2012 there is some cause for hope. One in Louisiana for five years is eligible for election. More The judge repeated, “You’re manipulating the system”. to our feet. I’m thinking, I wish I had the number of the obvious change is that nine of the elected judges in the important than legal qualification, expertise or experience The defence said, “Judge, how could I be manipulating the Australian Embassy for my one phone call but I say, “Your Parish of Orleans District Criminal Court are now women is the ability to run an effective election campaign. It is system when it’s a Friday and the court has no jury pool on Honour, I am here under the impression that this is an and at least two of those women are African American. image courtesy of yeates and yeates architects inherent in the process that a candidate will have the a Friday?”. The judge turned to the accused, “Your lawyer open court”. ”Are you lawyers?” he demanded. Before we The newly elected District Attorney for the Parish of means or more importantly, the connections to raise is manipulating the system and as a result you are going could answer he continued in such a southern drawl that Orleans is also an African American. He is concerned campaign funds. In 2012, a campaign based on law, order inside, now”. The judge then called to the sheriff who woke I couldn’t understand what he was saying but found out about the high rate of wrongful convictions. His campaign and speedy justice was a proven recipe for success. with a start. “Take that man away”. The sheriff handcuffed later from my friend that he was concerned we were in his was based on a ticket to reform what he has called the Once elected, the judges are each assigned their own the protesting client and escorted him out through the small court as observers for an organisation named ‘Court Watch’. ‘win at all costs’ prosecution culture where a finding of permanent courtroom. Above the large entrance door to door which was just to the side of the judge’s bench. The Unbeknown to me it had been set-up to monitor some of guilt is regarded as ‘a notch on the belt.’ His intended their court is embossed the judge’s name to indicate it is sheriff then returned, resumed his chair and promptly fell “The Impartial Administration of Justice” being metered reforms include matters that are the norm in Australia. that judge whose domain lies within. back asleep as if nothing had happened. Any pretence by out in the District Criminal Court in the Parish of Orleans. As an example of one of the new DA’s progressive The first courtroom we entered was an instant reality the defence attorney of respect for the judge evaporated. The sheriff, who was now wide awake, rose to his feet in initiatives, he wants to discourage his prosecutors from check. There were five manacled African Americans “Judge! This is idiotic! What are your reasons?” The judge readiness. My friend tried to placate the judge by saying suppressing exculpatory evidence. Instead, evidence sitting in the front row. My friend whispered to me that refused to give reasons but did make a bizarre comment, she was just showing me around and assured him we had favourable to the accused is to be made available to the the colour of poverty in Louisiana is black. The first “I read in the paper that quote attributed to you”. The judge also visited other courts—not just his. The judge quizzed defence. However, he admits it won’t be easy and that he case we watched involved another African American. then fixed a trial date for 20 August, which meant the my friend further: “Do you work for the public defender’s is expecting push-back from within his office.

72 VBN INSET: Image of City of New Orleans Criminal Courts Building; VBN 73 1934 secured First Class in Classical Jim swam from raft to raft, doing what he could for Philology, and rounded off his Arts wounded and also rescuing exhausted men from the water course with a Wyselaskie Scholarship, BAR who were not able to make the distance on their own. an Exhibition in Comparative Philology and First Class Final Honours. He was Lore a Senior Student in Trinity in 1935 and I arrived in Geelong Grammar in Rifles (then part of the militia), James represented the College in XI and XVIII. 1930. James Mann was the son of described himself as a law student. Awarded a Rhodes Scholarship, and Sir Frederick Mann. His mother was Fleur-de-Lys, the annual proceeded to Oxford. In 1937 he gained a Raleigh. They (presumably the publication of Trinity College records First Class Honours in the Honours Raleighs) were another family at further details of Mann’s short life. School of Jurisprudence at Oxford, Geelong Grammar. He was a very He entered the College in 1931 and and was placed first in the final Bar able boy. He was dux of the school in read Latin and Greek as part of No Greater examinations for all England winning 1929. However, there was a rule that an Arts degree. He won first-class the Vinerian Scholarship. Admitted one could not be dux in successive honours in both subjects, as well to the Victoria Bar in 1938. Enlisted years. Somebody else was dux in as for Ancient History, in the final Love: shortly after the outbreak of war in 1930. However, James Mann was examinations for 1932. He received Field Artillery; was promoted sergeant; dux again in 1931. After Geelong comparable results in 1933. By then, James transferred to an Anti-Aircraft Grammar, he went to Trinity. He was he had commenced Law studies and Regiment , and gained a commission. a brilliant student in classics. During was joint winner of the Sir George Left Australia as a lieutenant and saw 1931, we produced a “bi-millennium” Turner exhibition in Jurisprudence. Gilbert service in the Middle East and Crete. of Virgil at the school. We produced He was a member of the XI and a presentation of the 6th Book of the played on the half back flank for The second extract was from Aeneid. Michael Thwaites and John S. the XVIII. In 1935, he was elected Mann— The Corian, August 1942. It reads Manifold were in the chorus. Jim Mann President of the Students’ Club, and as follows: was Anchises. (The Corian, in fact, later in the year awarded the Rhodes Bar Roll 333 We are indebted to Mr H. W. Raleigh records that Jim Mann was Acestes. Scholarship. Fleur-de Lys records: for the following account written by Acestes was the Trojan governor of Fleur de Lys 1935 / courtesy At the end of Second Term the College a brother officer of JAMES GILBERT Eryx who organised the funeral games BY JOSEPH SANTAMARIA of Trinity College Archives said goodbye to Mr JG Mann, Senior MANN: – for Anchises.) Student during the past year and My informant, a man of Jim’s battery, After he died, his father wanted a Rhodes Scholar for 1935. Mr Mann efore I left for Geelong Grammar. He provided me Dictionary of Biography on Mann’s invalided back from Italy, told me that memorial started. He didn’t want a came up from Corio with an A.M. Oxford, my with two extracts from The Corian. father, Sir Frederick Mann, who was he was on the HMS Hereward when it window in the chapel; he was not White Scholarship in 1932 and during father asked me The first was dated December 1941. the Chief Justice of Victoria between was bombed and sunk with the boys that way inclined. So we started his four years in Trinity more than lived to see if I could It reads as follows: 1935 and 1944. I still have the extract, on it. All the information he could give furnishing the Hawker library. We used up to the reputation he had won for track down the written in Jim’s copperplate: DIED ON ACTIVE SERVICE me about Jim Mann was that, when maple. He was the first himself at school. Among other things details of James Pro Deo et Patria the ship went down, Jim swam from boy to be so commemorated. he took a First in Classical Philology, Mann. He told me that they had both In 1941 Mann suffered a great personal JAMES GILBERT MANN: – raft to raft, doing what he could for won a Wyselaskie Scholarship and been shortlisted for the Rhodes in loss when his elder son, James Gilbert, Sir James suggested a few names to wounded and also rescuing exhausted played cricket and football for the 1935 and that the scholarship was was killed in action in Crete. Having Lieutenant Anti-Aircraft Regiment. follow up, including John Starke and men from the water who were not able college. But a full catalogue of his awarded to Mann. My father said been chosen as Victorian Rhodes Drowned at sea during evacuation William Mann, James’s brother. He to make the distance on their own. achievements would be out of place that Mann was far and away the Scholar for 1935, James won brilliant from Crete. School 1925–1931. gave me the contact details of Mr B Eventually he rested on a raft himself. in these columns; we can only affirm outstanding candidate, but that he firsts and the Vinerian Scholarship Cuthbert-prize 1929, 1931. Mann. I rang and spoke to William The last that was seen of him was that our confidence in the selection had not heard of him since the day at Oxford, and was regarded as the Distinguished scholastic career at Mann. He treated this intruder with he saw a young fellow in trouble so he committee’s judgement and wish they were both interviewed. outstanding young lawyer of his School, Melbourne University and at great courtesy, but my recollection of rescued him and gave up his place on their choice the success he deserves. It proved to be not a difficult task. I generation. He was a lieutenant in the Oxford. Secured First Class Honours in the conversation is his curiosity as to the raft to him. He then swam away, Balliol’s gain is Trinity’s loss. Mr Mann took myself to Rhodes House and, as Royal Australian Artillery when he gave Latin and Greek in Public Examinations, what had prompted my interest in his and was not seen again. Jim was a fine is the 12th member of the college to win I was waiting to explain my presence, up his life raft to an exhausted man shared the Exhibition in Latin and won brother. soldier, and did a wonderful job while a Rhodes scholarship. I looked up at the Rotunda on which after the ship evacuating his men was a Senior Government Scholarship. In I spoke briefly to Mr Justice Starke on Crete. We are all proud of him. were etched the names of scholars bombed. Rather than overload other 1932, at Trinity College, gained First at drinks on the 18th Floor of Owen At Trinity, there is a trophy bowl, who had given their lives in conflict. rafts, he swam out to sea. Class Honours in Greek I, Latin I and Michael Collins Persse put me in Dixon Chambers West. He did not tell engraved: “TRINITY COLLEGE/ One of them read “J.G. Mann, 1941”. Ancient History together with the touch with Sir James Darling who me much other than to convey that Billiards Championship/ J.G. MANN/ Realizing that it was almost the 50th I am not sure when it was but I Exhibitions in these three subjects. was the headmaster at Geelong he revered the memory of Mann. 1934”. He did not waste his time. anniversary of his death, I decided developed an interest in Jim Mann. It 1933 saw further successes—First Grammar for over three decades. In 1932, Jim Mann entered Trinity At some stage, I must have at some stage to follow things up. may have arisen out of a conversation Classes in Greek II, Latin II and (Peter R.D. Gray QC is his grandson.) with an A.W. White Scholarship. In spoken to Bruce McLean, then I got in touch with Michael Collins with Jim Merralls who had sent Jurisprudence I with the Exhibitions I spoke to Sir James, and my note is his application dated 25 July 1932 the Prothonotary of the Supreme Persse, who was then the archivist at me an extract from the Australian in Greek II and Jurisprudence. In as follows: to join the Melbourne University Court, and asked him for what

74 VBN VBN 75 details he had on Jim Mann. The Heraklion. On 28 May, the order to all floating material had been used. In details included his success in evacuate was made. The majority of the water we were strafed and bombed Oxford, his admission to the Middle B Troop men were on the Hereward. by a Stuka for a short while. Later an Temple, his admission to practice It sailed with the rest of the fleet at Italian Red Cross plane arrived and (2 November, 1938), his signing 3.20am, unopposed. When it was in kept the Stuka away, by circling round of the Bar Roll (4 November, 1938) the Kasos Strait between Crete and the men in the water. Italian motor bar lore and the circumstances of his death. Kasos, Hereward suffered a direct hit torpedo boats took the survivors to When he signed the Bar Roll, he from a dive-bomber. It was every man Scarpanto and later an Italian was given the Roll Number 333. for himself. This was when Jim Mann took us to Rhodes.” Mann was only briefly a member drowned. Those on rafts or in life The same volume of the Official War of our Bar. When war broke out, he jackets were rescued by the Italian History describes the circumstances was a “Thirty-Niner”—one of the men Navy and taken into captivity. Other in which Mann’s younger brother, who were serving in the militia or members of the 7th battery were on William Raleigh Mann (VX 3933), the RAN/RAAF reserves when World a platoon commander within the War II started. 2/6 Battalion was wounded and It would have been in the law that captured. It occurred on the morning Mann met other members of the of 26 April, 1942. William’s platoon 7th Battery such as SCG (“Jock”) was defending the canal at Corinth. Macindoe, later senior partner of Eventually, it was overwhelmed by Hedderwicks Fookes and Alston and German paratroopers. a director of Westpac. Papers of Sir Frederick Mann kept When I first tried to assemble some in the National Archives, contain details of the life of James Mann, two eyewitness accounts of what I did not have the advantage of the The Corian August 1931 / courtesy of Geelong happened. WO Jack Bartlett MM (VX Grammar Archives. James Mann is third from the Internet. The 2nd/3rd Australian Light 37285) wrote to Sir Frederick from right in the back row. James Darling is front left. Anti-Aircraft Regiment Association his POW camp on 18 October, 1941: was formed at the end of hostilities. It has a website: antiaircraft.org.au After entering the water I noticed your clinging to rest, to an exhausted man particularly brilliant qualifications to the Commonwealth War Graves and, within that website, there is the son swimming around, and I asked and swam away past to other groups deprive him of that honour. It caused (Face 10). The entry reads: text of “On Target: The Story of the him how he was, and he called out of men. No further was heard or seen no surprise therefore, when the 2/3rd Australian Light Anti-Aircraft “O.K. Thanks”. Other men who were In Memory Of of him and I regret to say that it is the announcement was made that James Regiment”. clinging to a raft called out to him to opinion of the men who underwent Gilbert Mann was the new Rhodes Lieutenant The book tells the story of the come and hang on to their raft but that trial that he could not have scholar. He went to Oxford at the end JAMES GILBERT MANN raising of the regiment in July 1940 he declined as the raft was already survived very long in the sea that of the year, and his career there was at the Werribee racecourse, its the Dido and the Orion. Both vessels overloaded, he also declined to hang Service Number: VX14000 was running. even more brilliant that it had been travel to the Middle East via made it back to Alexandria by 29 May, on to the chair that I was hanging on to in Melbourne. A.I.F. 3 Aust. Lt. A.A. Regt., Royal and Colombo on HM Troopship but suffered terrible casualties with another corporal as he considered In an article published in The Australian Artillery who died on Mauretania, through to its arrival in en route from the dive-bombers. that it would not keep the three of us Australasian in 1941, the following He returned to Australia and was 29 Age 27. Palestine. From there, it was taken The Official War History 1939–1945 afloat. Also owing to the heavy sea that is written under the heading admitted to the Victorian Bar, but to the staging camp at Amariya, a gives further details of the heroism of was running it would be impossible “Rhodes Scholar’s Record”: before he could settle down to practise Son of Frederick Wollaston Mann and few miles from Alexandria in Egypt. Mann. In the volume entitled Greece, for anyone to survive unless he had he enlisted. He soon gained promotion, Adeline Mary Mann, of South Yarra, Those who knew Jim Mann held The information that follows is taken Crete and Syria, Gavin Long, in his a support to hang onto. and sailed for the Middle East as a Victoria, Australia. B.A., B.C.L., Rhodes him in high esteem. I knew him from that book (which can be read on description of the retreat from Crete, lieutenant. From time to time one Scholar, Victoria, 1935, Vinerian On 28 June 1942, Lt Edgar, who had well, and among the many public the Net in its entirety). gives the following account: heard of him, and we learned of the Scholar, Oxon. Member of Bar Victoria been repatriated upon an exchange schoolboys of his period there were On 23 April, 1941, the 7th Battery high esteem in which he was held. and Middle Temple, England, Barrister. Most of the Australian anti-aircraft of prisoners wrote to Sir Frederick not many for whom there was more embarked for Crete “to assist in the Those attributes which Cecil Rhodes gunners were on Hereward. One of and told him what he had learnt in genuine affection. Remembered with Honour. defence of the Navy Air Bases on the the founder of the Rhodes scholarship them wrote afterwards: “Lt Jim Mann the POW camp from the men who island”. On 24 April, the evacuation All through his course he was known desired to foster were fully developed In 1995, to mark the 50th anniversary of ‘B’ Troop [Lt J G Mann a Melbourne were the last to see Jim alive: of Greece had commenced. The 7th as a sound student and of exceptional in him. From the time of his entering of the end of the War, a “Field of barrister and Rhodes scholar] was an Battery disembarked in Suda Bay, and After the Hereward had been bombed ability, and he played his games with Glamorgan until he lost his life he Remembrance” comprising individual inspiration to all on board because of took up a position “in an olive grove and the men on board had taken to keenness. Above all he was admired was marked down as a young man of wooden crosses was installed on the soldierly way in which he helped on the slopes overlooking Canea”. the sea, clinging to rafts and spas, for his charm of manner and his force great promise, in whom leadership and the grass verge around the Shrine organise the ‘Abandon Ship’ , and saw Immediately, they became mixed up Lieutenant Mann was seen by several of character. When it was known that character were fully developed. of Remembrance. One of them was that men had something to keep them in the evacuation from Greece. By men swimming from raft to raft helping he was a candidate for the Rhodes inscribed “James Mann VX 14000”. afloat. He was one of the last to leave James Mann is memorialised at the 26 April, B and C Troops had moved as many as he could. He gave up his scholarship for 1935 it was felt He had not been forgotten. and was drowned. When his turn came Athens Memorial maintained by to take up defence positions around position on a buoy, to which he was that it would require someone with Lest we forget.

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his Honour that the bank would He is also a keen sailor and runner enactment and implementation of the In this Back of the lift section of the Victorian Bar never brief him again, to which and has completed 14 Melbourne Victorian Charter of Human Rights News, the Bar acknowledges the appointments, his Honour responded by saying marathons. and Responsibilities in 2006. After back of the lift back retirements, deaths and other honours of past and present “you can brief whomever you like” His Honour’s presence on the court her appointment, she wrote many of members of our Bar. and put the phone down. will be missed. We wish him all the the seminal decisions on the Charter, Despite his busy practice, best in his retirement. as well as other leading judgments. his Honour served as a ROBERT HAY Her clear written expression is a Adjourned Sine Die OF part-time member of VCAT (and pleasure to read. High Court Back THE lift its predecessor) from 1989 to 2002. Court of Appeal Law was not Pamela’s first career. The Hon Justice AC 78 His Honour had three readers: She came to Australia from Dunedin, Court of Appeal Adjourned Sine Die Robert Hay, Pamela Tate and New Zealand after being a student of The Hon Pamela Mary Tate 79 . philosophy. She brought to the court Supreme Court Before his Honour was appointed a philosopher’s depth and skill. The Hon Peter Waddington Almond QC 79 a judge of the Supreme Court in 2002, At each step of her career, she has The Hon Justice Simon Whelan 80 the attorney-general, Mr Hulls, was made meaningful efforts to support Silence All Stand reported as saying that such was the women in the law. This was most Court of Appeal High Court disinclination of barristers to accept recently displayed in her creation of The Hon Justice Maree Kennedy 81 judicial appointments, that he had the well regarded “Feedback from The Hon Justice Kristen Walker 81 The Hon Geoffrey Nettle offered six persons an appointment the Bench Moot” which provides an Supreme Court of Victoria only to have all six offers refused. opportunity for women barristers to The Hon Justice Michael Osborne 82 Bar Roll No 1733 His Honour, who was 51 when he practise appellate advocacy skills. County Court of Victoria was appointed and would have been Pamela doesn’t just think: she does. His Honour Judge Justin Hannebery 83 he Hon Geoffrey Nettle AC QC retired as a judge at the peak of his earning power On a personal note, the author Federal Circuit Court of Australia of the High Court on 30 November, 2020. I was as a barrister, said at his welcome: recalls the warmth with which His Honour Judge Jonathan Davis 83 his Honour’s reader in 1992. At that time, he was Pamela approached her colleagues Her Honour Judge Jennifer Howe 83 a very busy barrister and the Bar’s leading junior in It is with an immense sense of privilege and thanks her for her mentoring. Vale Tcommercial, tax, constitutional and administrative law. and good fortune for the opportunity The Hon Pamela Mary On behalf of the Victorian Bar, we Colin Lovitt QC 83 Apart from his Honour’s extraordinary work ethic and that has been afforded me by this wish her a satisfying next chapter The Hon John Gilmour QC 85 gentle humour, my main recollection from those nine appointment that I now take up my Tate and thank her for the enduring His Honour John Nixon 86 months is the stream of barristers seeking advice, calls work as a judge of this great court… Bar Roll No 2675 contributions she has made to the Michael James Ruddle 87 from common law barristers on circuit seeking assistance I am one … who still regards judicial Jacqui Katsivas 88 n 29 April, 2021, a dinner profession over the past 30 years. with legal submissions during trials and his uncanny appointment as the ultimate mark Dan Christie 89 was held to farewell the Hon KYLIE EVANS ability to pluck from memory the key cases in any field of success for a barrister. Jeffery Gyles 89 Pamela Tate after her almost of law. Margaret Collis 90 As a judge, his Honour was 11 years of service as a judge of the Peter Heerey AM QC 91 While his Honour had a formidable reputation as Supreme Court unfailingly courteous to counsel. OVictorian Supreme Court of Appeal. an advocate, he has a soft underbelly: he is a kind and Despite his background in The room was full of Pamela’s family, generous man, lacking any sense of self-importance. His commercial law, he had a great friends and colleagues, who came Honour enjoyed assisting juniors and gave advice freely. interest in the criminal law and while to congratulate her on the rich No matter how busy he was, none of his readers’ work a Justice of Appeal was responsible achievements of her long legal career. Gonged! was returned to instructors without him having cast his (with Ashley JA) for drafting the The speeches from this evening eye over it. Even as one of the Bar’s leading juniors he criminal procedure rules in Part 6 exemplify some of Pamela’s finest was still accepting briefs from the many sole practitioners of the Criminal Procedure Act 2009. qualities: her steadfast commitment 2021 AUSTRALIA DAY AWARDS and small firms that had briefed him when he first came While an Appeal Justice, his Honour to the law, her intellect and her Bret Walker AO SC (Interstate member) to the Bar in 1982. Many of those practitioners celebrated presided over criminal trials and unfailing and steely determination Daryl J Williams AM QC with him upon his appointments to the Supreme Court was the judge in the trial of Adrian to support women barristers. Patrick F Tehan OAM QC in 2002, the Court of Appeal in 2004 and the High Court Bayley for the rape and murder Pamela Tate was appointed to the 2021 QUEENS BIRTHDAY HONOURS in 2015. of Jill Meagher. He also sat as an Supreme Court of Victoria on 14 The Honourable Patricia Anne Bergin AO SC (interstate member) His Honour had a great respect for the traditions of Acting Justice of Appeal in criminal September 2010, following a legal Dr Ian Richard Freckelton AO QC the Bar. He assisted on a pro bono basis many barristers appeals on the New South Wales career commencing at the Victorian Her Honour Judge Felicity Pia Hampel AM who had got themselves into difficulties and took briefs The Hon Peter Court of Appeal. Bar in 1991 and extending until The Honourable David James Porter AM (interstate member) that no one else would. In one case, the trial ran for Outside the law, his Honour her appointment as Victoria’s first Waddington Almond QC His Honour Ian Leslie Gray AM two weeks. In 1992, one of the most litigious banks had maintains a love of restoring cars. He female solicitor-general in 2003. As Bar Roll No 1715 Brigadier Douglas Watson Laidlaw AM CSC entered into retainers with many of the Bar’s leading has a mechanic’s pit in his garage and solicitor-general, Pamela appeared Mr Michael John Sweeney OAM counsel to prevent them acting against the bank. After t is customary that when a has restored a 1.8 litre MGB, a 5.8 for the State of Victoria in numerous receiving a statement of claim signed by his Honour, judicial officer of the Supreme litre V12 S-type Jaguar, a 1946 Mark highly significant cases. During this one of the bank’s executives rang his chambers and told Court retires, a ceremonial sitting IV Jaguar and a 1972 944 Porsche. time, she was instrumental in the I

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is held to farewell that judge and when his Honour said, with a crack intends to digitise his family history. outstanding children. Their eldest broadcasting on community radio law, in particular asylum seekers, to acknowledge their service to the in his voice, that for him, ensuring Farewell to the 138th judge of the daughter, Alexandra, is practising before moving to ABC Radio. Even lesbian mothers, transgender court and the legal profession more that parties felt they had each been Supreme Court. We wish him all the at the London Bar. Madeline, the though he is a long suffering St Kilda people, and women seeking safe back of the lift back broadly. Typically, judges, barristers, fairly and equally heard was his best in retirement! middle child, occupies a senior public supporter, he managed to inject access to abortions and assisted lawyers, court staff, family, friends most important achievement as a EVELYN TADROS, VERONICA HOLT, LUCY health position in local government considerable humour and levity into reproductive services. and other dignitaries are packed judge. It is a testament to his integrity LINE, GRANT LUBOFSKY AND JOHN HEARD in England. The youngest, Hugh, is the weekly program. He was forced to After attending school at PLC into Banco Court, with latecomers and humility. These qualities shone undertaking the Bar course at the give up his role when first appointed in Melbourne, Kristen entered tightly squeezed in the entrance way, through in his farewell message as he The Hon Simon London Bar. to the Trial Division but he has now Melbourne University in 1986, breathing awkwardly on each other thanked everyone who had supported Whelan QC Whilst his Honour had a returned to that post to continue to studying for both a like the (pre-Covid) rush hour tram him, from the cleaners to the chief predominantly commercial practice entertain his grateful audience. and a Bachelor of Science. Kristen Bar Roll No 1675 ride, to hear the farewell speeches on justices. Peter’s dignified and at the Bar, he was known to prosecute Simon has always had a great love made an immediate impression on behalf of the Victorian government, thoughtful address has an important he Hon Simon Whelan QC has criminal matters in the County of the outdoors and he and Clare all who encountered her, not least for the Victorian Bar, the Law Institute of message for us all: that no one can already retired twice: once Court while still a junior. As a trial have undertaken many hiking trips her scholarship, attention to detail Victoria and from the retiring judge discharge their duties alone. last year at Easter so he could judge, although sitting mainly in the both in Australia and abroad. He and the seriousness with which in reply. His Honour presided mainly in the re-join his friends on the weekly Commercial Division, he also spent has also spent many weeks in Italy she approached her chosen career. With the retirement of the Hon Commercial Court (usually in Court T“Coodabeens” football show on ABC considerable time trying murder enjoying that country and learning Amongst many accomplishments Peter Almond QC on 31 March, 2021, 13) but also in criminal trials and Radio (before being re-commissioned cases in the Trial Division. its language. as an undergraduate, she competed in the middle of a global pandemic, a in the Court of Appeal on civil and as a reserve judge after the grand His Honour is one of a long line of Even as counsel, his Honour never as a member of the Melbourne conventional ceremonial sitting was criminal appeals. He was extremely final) and again at Easter this year so former and sitting judges occupying suffered fools gladly. His quick University team in the 1992 Jessup not practicable. Instead, his Honour diligent, hardworking and efficient, that he could go back to his beloved a residence in or around Alfred intellect and wit often led him into Moot competition, where she met her opted to farewell the profession and would regularly adjourn to Coodabeens! Crescent, North Fitzroy. His present spirited exchanges. He disliked life partner, Miranda Stewart (now without the fanfare (as is his way) in consider arguments over the lunch His Honour was admitted to practice residence, a very stately home, was repetition. But he had those great Professor Stewart). She was awarded a brief pre-recorded address which is break and deliver ‘ex temp’ reasons on 3 April 1978 and signed the Bar the subject of an apt comment by Jem characteristics of all good judges: the Supreme Court Prize in the LLB available to stream on the Supreme the same afternoon. His judgments Roll on 19 November, 1981. He read Ryan, the youngest son of his first unfailing courtesy (usually) to those graduating class of 1991 and won a Court website. We could not, however, were remarkably clear and thorough, with Les Ross, later Judge Ross of the reader. When Adrian Ryan took his who appeared in his court and Fulbright scholarship to Columbia allow him to bid us adieu without yet to the point. County Court, and had four readers: children to visit one day, Jem looked the ability to listen and question University Law School in New York, paying tribute to his service of nearly Peter had 15 associates (including Adrian Ryan SC, Annette Rubinstein, up at the stately home and remarked intensely to identify and then resolve where she was awarded a Master 11 years on the bench. us five writers who are now Jonathan Davis (now Judge Davis) and to his father, “Daddy, a king must live the relevant issues. We wish him of Laws. Kristen has also received His Honour brought a wealth of barristers at the Victorian Bar), who Jacqueline Horan. here because this is a castle”. a happy and satisfying retirement. a Master of Laws from Melbourne experience to the court after 28 years know him for his kindness, sense of His Honour took silk in 1995 and On the Bench, his Honour WILLIAM T HOUGHTON QC University. as a barrister (the final 11 years as humour, optimism and love of prime was appointed a Judge of the Trial did indeed preside regally, fully Kristen completed her articles with silk) at the Victorian Bar. He had a numbers. He had an open door policy Division of the Supreme Court in mastering the intricacies of Arthur Robinson and Hedderwicks successful and largely commercial and always made time to provide February 2004. In October 2012, controlling the court room (and in Melbourne in 1993 and served as practice. One of his lesser known sage advice and encouragement he was elevated to the Court of bickering counsel) while at the same Silence All associate to Sir , then achievements is that he is co-founder, to his associates, whatever their Appeal where he remained until time delivering learned rulings on Chief Justice of Australia, in 1993–1994. along with William Houghton QC future endeavour. We have such fond his retirement. evidence after rigorously researching Stand From 1994 to 2010, Kristen was and Peter Collinson QC, of the North memories of our time as associates, As counsel, Simon developed a the relevant authorities, sometimes an associate professor in law at Melbourne Legal Service (now Inner from the 9.15am morning banter, to strong practice, particularly in the without the assistance of counsel. Melbourne University, where she Melbourne Community Legal), which post-court debriefs debating the finer areas of commercial and insolvency His undoubted wit could, at times, taught constitutional law and the trio started in 1978 when they points of law and advocacy, to post- law where his skills, even as a junior, be acerbic and his questioning, Court of Appeal international law in the LLB and JD were law students. Motivated by a judgment celebrations over coffee were recognised by his many leaders. always necessary during a difficult programs, and written advocacy (with strong desire to improve access to and raspberry friands—our time as Simon met his wife, solicitor Clare case, could cause even the most The Hon Justice Maree Kennedy Andrew Palmer QC) and constitutional justice for those most vulnerable in associates to his Honour was and Morton, in the lift at Owen Dixon experienced counsel to tremble. litigation in the Master of Laws. the community, they were able to remains a professional and personal Chambers East. I had invited Ms His Honour’s mastery of the law The Hon Justice Kristen Kristen was also an adjunct professor assist many people during their time highlight for us. Morton to lunch at the Essoign after was well known. He was rarely Walker at Columbia University from 1998 to at the legal service. His Honour is also a very proud a court appearance in which she had reversed on appeal when sitting as 2000, teaching international human Bar Roll No 3754 Peter was a highly respected judge, and loving father and husband. It was briefed me. Simon got into the lift. I a trial judge and even less so when rights law and legal ethics, and at the who was dedicated to ensuring that inspiring to see how he and Carmel introduced him to Clare and politely sitting on the Court of Appeal. ustice Kristen Walker was University of Arizona in 2003, teaching every party was afforded procedural Mulhern, despite their demanding asked whether he wished to join Whilst the wider community will appointed to the Court of international human rights law. Kristen fairness in his courtroom. Counsel jobs, made so much time for their us for lunch. He accepted (perhaps remember him as a fine barrister and Appeal on 3 May, 2021. has had a long and virtually continuous have frequently remarked to the three children and their personal surprisingly) and the rest is history. an even finer judge, Simon would JKristen is one of those rare beings association with the Melbourne Law writers how nice it was to appear interests. We are so happy that Peter Simon has always denied the veracity probably want to be remembered for who excel in both the academic and School, where she is currently a before a judge who was so decent, will have the opportunity to spend of that story (he says he paid for his prowess as a broadcaster and his practical spheres of the law. She has principal fellow. commercial, respectful and fair. There more quality time with his family lunch) but the truth always outs. knowledge of AFL football. He was also contributed effectively over A perusal of Kristen’s publications were few dry eyes around the table and pursuing his passions like Simon and Clare have had a long one of the founders of the Coodabeen many years to the causes of people demonstrates the breadth of her at our recent former associates’ lunch cycling and furniture making. He also and happy marriage producing three Champions when they first started whose lives are at the margins of the expertise. They include numerous

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Dr Anna Parker—Senior Registrar and articles on constitutional law and life, in particular Loielo v Giles in His Honour read in the chambers friends and colleagues wish him regularly took Legal Aid and pro National Operations Registrar—Family administrative law, as well as articles the Supreme Court (concerning the of Tim North QC. Save for the the very best for this next stage bono briefs. Court of Australia and Federal Circuit on international law, refugee law, curfew) and Gerner v Victoria in the outcome of the grand final, 1994 was in his career. As a leader, his Honour encouraged back of the lift back Court of Australia electoral law, law and sexuality, and High Court (concerning restrictions a good year for the Cats. If asked ROB HEATH and supported his juniors to take the law concerning access to assisted on movement more generally). about that game, his Honour almost every opportunity to develop their Rowena Orr QC—appointed Solicitor- General reproductive services. Kristen’s appointment to the Court always mentions three things. First, County Court skills. Having appropriated the Kristen came to the Bar in 2004 and of Appeal has been very warmly he got to the MCG at 8am, where chambers whiteboard, he would distil Judy Benson—Judicial Registrar read with Stephen McLeish (as his received. To take just one example, he remained until the final siren. of Victoria an entire case strategy down to a Children’s Court of Victoria Honour then was). Kristen’s first case, Anna Brown OAM, CEO of Equality Second, it rained, and he was not handful of bullet points. His juniors Allison Vaughan—Judicial Registrar Ruhani v Director of Police, involved Australia, noted the contributions to sitting under cover. Third, as to the His Honour Judge learned the importance and benefit Magistrates Court of Victoria her addressing the High Court in reform achieved through Kristen’s prospects of the Cats throughout the of approaching each case logically Michael Gurvich—Judicial Registrar oral argument four days after signing extensive pro bono practice dating game, he did not share the unfailing Justin Hannebery and with a clear plan. Magistrates Court of Victorian the Bar Roll. Since then she has back at least to assisting the legal optimism of his companion, Frank Bar Roll No 3212 Judge Hannebery was renowned as appeared as counsel in more than 30 team in Croome v Tasmania in O’Donnell, one of his Honour’s a mentor and had nine readers. Aside udge Hannebery was appointed High Court cases, including matters 1997 and to the marriage equality instructing solicitors. from formal mentoring relationships, to the County Court of Victoria involving the right to vote under the campaign. Ms Brown recalled her In the second half of 2007, Justice his Honour was known in chambers on 8 December 2021. Vale Australian Constitution (Roach v experiences working with Kristen Osborne was hosting one of his six as a person whose door was always JWhile his Honour professes that Electoral Commissioner and Rowe v and has rightly said that she will readers. In the week leading up to open and who always made time to his legal career can be summarised Colin Lovitt QC Electoral Commissioner) led by the contribute both exceptional legal the grand final, on a regular basis, his listen to the problems of others. His as “son of lawyer becomes lawyer”, Hon Ron Merkel QC and a number of expertise and diversity to Victoria’s Honour entertained the reader (as Honour had a way of listening to a Bar Roll No 923 the reality is far more interesting high profile cases concerning refugees, highest court. well as his neighbours in chambers) complex problem, digesting the issue than that. ustralia has lost one of including the Malaysian Solution case Her friends attest to her abiding with the Geelong Advertiser’s music and whittling it down to a simple Judge Hannebery completed its best fighters for the (with Debra Mortimer QC and Richard sense of justice, her dedication to video titled “Year of the Cat”. Of course, proposition. articles with his father at Tony underdog, Colin Lovitt Niall QC, as their Honours then were). ensuring access to justice for those in his eyes, the grand final result His Honour was a great servant Hannebery Lawyers. He was QC, who died on 10 January 2021 at Kristen also appeared pro bono in a at the margins and her conviction was magnificent. On the Monday to the Bar, completing 12 terms on admitted to practice in 1996, after theA age of 76. range of cases concerning the rights that diversity must be embraced morning after, however, his Honour Bar Council as well as contributing which he cut his teeth working as Lovitt was admitted to practice in of transgender people, including and practised. Just as importantly, urged caution about the team’s future to Bar News, the Criminal Bar a solicitor at Balmer & Associates. 1969 and called to the Bar in 1970, NSW Registrar of Births, Deaths and Kristen also brings to her judicial prospects. This was no time for Association, the readers’ course and Thrown in the deep end, his Honour where he read with the late John Marriages v Norrie in 2014 and Re duties rigorous scholarship and an unfounded optimism. Invariably he many other projects. His Honour was was grateful for the opportunity to Fogarty AM. Colin was a leader of Kelvin in the Full Family Court in 2017. unshakeable respect for the law, in all adopted the same thinking in respect devoted to giving something back to gain the volume of experience in a the criminal bar, serving as chairman Kristen took silk in 2014 and was its complexity. She will be a fine judge. of reserved judgments. the institution that provided him a relatively short time that was offered of the Criminal Bar Association, of appointed solicitor-general in 2017. We wish her well in her new role. Justice Osborne took silk in late distinguished career. His Honour’s by working in a small criminal which he was founding member and Kristen’s time as solicitor-general PETER GRAY AND LIZ BENNETT November 2013. By that stage, appointment to the County Court is defence firm. His interest in advocacy life member. Lovitt took silk in 1988 involved advising and appearing notwithstanding the loss in the a further progression in his desire to was sparked and he signed the Bar and retired in 2015. across a range of matters of preliminary final, the Geelong serve. We have no doubt his Honour Supreme Court Roll in 1998. Lovitt was a barrister with a heart significance to the State of Victoria. Football Club had established itself will be a great asset to the Court and At the Bar, his Honour quickly of gold who was generous with In particular, she successfully of Victoria as a football powerhouse; similarly, wish him many satisfying years of developed a reputation for his time. He helped and guided defended Victoria’s law providing his Honour had developed a large faithful service. impeccable forensic judgement others, particularly junior barristers, for “safe access zones” adjacent to practice as an effective trial advocate. DAVID CAROLAN AND JOANNE POOLE The Hon Justice and highly effective, no-nonsense including myself. abortion clinics () Good judgement and humility were— court craft. A journalist observing Lovitt conducted about 200 murder and, as an intervener presented Michael Osborne and remain—two of his hallmarks. Australia’s largest art-fraud case Federal Circuit Court trials for the accused and was the successful argument in Spence Bar Roll No 2895 In the next seven years, Justice famously described his Honour as Australia’s best known murder trial v Queensland, concerning the Osborne ran many trials and appeals. of Australia ustice Michael Osborne was “tall, striking and assured”, slashing lawyer. validity of certain aspects of the This was the “premiership quarter” appointed to the Supreme through the “legal brambles” of an His Honour Judge Jonathan Davis In 45 years, Lovitt notched up Commonwealth’s electoral donation in which his Honour demonstrated Court of Victoria on increasingly peculiar case. Her Honour Judge Jennifer Howe wins in some of the most high- regime. In addition, her time as skill in leading teams—leading from 15 December, 2020. Well in advance of his appointment profile cases. For example, he gained solicitor-general encompassed the J the front and leading by example. Justice Osborne signed the Bar to silk in 2018, his Honour was an acquittal on a murder charge Covid period. During that time, Above all, he valued and respected Other Appointments Roll on 23 April 1994—the year in entrusted by his instructors with against Mark “Chopper” Read Kristen was called upon to provide team players. which the Geelong Football Club complex and serious criminal The Hon Dr Christopher Jessup QC and successfully defended Greg fast and decisive analysis of the Justice Osborne will doubtless lost to the West Coast Eagles in the trials. His Honour also developed a —appointed as Inspector-General of Domaszewicz when he was charged statutory regimes relevant to the continue to display industry and good grand final. His Honour attended particular expertise in OH&S matters Intelligence and Security with the June 1997 murder of Moe management of the pandemic. judgement. There is no doubt, too, this game, the result strengthening and was regularly briefed in difficult Kathleen Foley—appointed to the toddler Jaidyn Leskie. Kristen successfully appeared to that his Honour will continue to value his general pessimism about the cases of workplace malfeasance. Victoria Law Reform Commission Lovitt successfully defended the defend the various challenges to the and respect team players. Geelong Football Club and its Though highly sought after for sergeant-at-arms of the Gypsy Jokers public health orders that imposed Justice Osborne will make an Adrian Muller—Registrar County Court future prospects. privately funded criminal work, he motorcycle gang, who was accused of restrictions on many aspects of daily excellent judge and his Honour’s of Victoria

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the murder of Assistant Commissioner But perhaps he was joking. Very few First of all—culpable driving. In the early than they once were. In the old days, with frankly. I’m 70 and always vowed I’d Federal Court. Over some 12 years on Donald Hancock. That case proved that people could tell if Lovitt was serious days when I defended people in culpable the all-male juries, they acquitted more retire at 70. I’m on the cusp of leaving. the Bench, he delivered more than 600 Lovitt not only understood “reasonable when in a social situation, as his court driving, the jury’s attitude was ‘there, easily. Today with all the television about The first 40 years, I was addicted judgments, including ABN Amro Bank back of the lift back doubt” better than just about anyone, demeanour was often taken to the but for the grace of God, go I—the drunk what crooks the defence lawyers are and to this place—I’d come in on the NV v Bathurst Regional Council in 2014 but also knew when the victim had dinner table, where he was a great in the dock. What’s this bloody doctor what heroes the police, investigators and weekends even when I wasn’t working and the Nyikina Mangala native title no sympathy with the jury, as was the companion and a lover of fine food and doing saying two-to-three beers and I’m prosecutors are, the defence have quite a on a case. determination, which he delivered case with a Western Australian jury wine. In fact, Lovitt’s cooking was so incapable of having proper control of a bit of ground to make up. The laws have People say to me, ‘if you win a case amidst emotional scenes of celebration and Hancock. Hancock had previously good, he could easily have been one of motor vehicle? What nonsense—I’ve changed a lot; BUT there’s still sexism, what do you do?’ I take my wife out on the banks of the Fitzroy River in framed the Mickelberg brothers for the the best chefs in Australia, instead of been driving home from the pub for 15 because old habits die hard. to dinner. ‘What do you do if you lose May 2014. Perth Mint swindle, and was so feared Australia’s best murder trial lawyer. years.’ People had that attitude for a long The fourth one is drugs, and I’ve just a case?’ I take my wife out to dinner. He also served as a Judge of the by fellow Western Australian police Colin Lovitt is survived by his wife time and it took a long time for the worm told you that story about my naivety Because life goes on—even if you’re Supreme Court of the Australian that they would not tell the truth about Margaret and sons Marcus and Zane. to turn. But now, they think ‘there but for in the second division of the Moonee bleeding inside. There’s been a few Capital Territory, and of the Supreme police corruption in WA until after PETER SEARLE the grace of God go I—the body on the Ponds Magistrates Court. cases where I’ve been genuinely very Court of Norfolk Island. his death. slab in the morgue.’ Most people don’t seem to have a disappointed—I believed I easily did He retired from the Bench in 2018 Lovitt and I shared many anecdotes ovitt’s work as an advocate The Herald Sun did a great job with grasp of the fact that a barrister in this enough for the juries to have at least a and returned to the Bar at Quayside and stories together about Western and humanist is best that Ten/Thirty-Four campaign when the state, this country, has no option but to reasonable doubt. Chambers in Perth. He quickly re- Australian police corruption, as we Ldescribed in some of his death toll was 1034 people—nowadays defend in a case where he’s available, not I loved a good bloody fight, to be honest. established a leading commercial were two of the very few “wise men own words from Foley’s List oral it’s less than 300 a year. It was three-and- embarrassed by knowing a witness, an I don’t mean a nasty fight. I’ve got a practice as a barrister and arbitrator. from the East”, who had the temerity history project. a-half times what it is now. A lot of it was accused. It’s an ethical offence to refuse reputation of arguing with judges. There For his colleagues at Quayside in the 1980s and ’90s to challenge people’s preparedness to tolerate drunk a brief. If I’m available and it’s a murder were a few judges I’d had arguments Chambers, he was valued as a leader, police corruption there, which was “When I was a young barrister in the driving then, whereas there’s no such trial and I don’t know the witnesses, then with; quite often I overreacted and it mentor and dear friend. led from the front by Hancock. early ‘70s, I was at the Moonee Ponds preparedness now. Now if you’re drunk I’m bound to take the brief. I can’t say, was my fault. Sometimes, in my opinion, The law was one aspect of John’s On the day I was admitted in Magistrates’ Court in the first division and behind the wheel and you cause an ‘it’s an unpopular cause, it’s a sure loser the judge wasn’t giving us a fair trial, life. He had an unshakeable faith in , I was sitting in an of the main court. I heard there was in accident—’you’re guilty’. and I won’t do it’. My mother once said, and I complained about it, sometimes Christ. He was a family man. He was empty Supreme Court courtroom when the second division a bloke who was a Now, the second one is the area ‘are you in such-and-such a case?’ I said, a little incautiously. Most of the really devoted to charitable giving—in time, Hancock arrived, walked straight to me drug addict. I’d never seen a drug addict of commercial crime. This is where ‘Yes,’ and she said, ‘I hope you lose’—she good judges I’ve never had a problem funds and resources. at the bar table, and pointed his loaded and I actually went around to the second we get to the bottom of the harbour knew the mother of the victim. People with. Frank Vincent was the judge on the At his Federal Court farewell three gun at my chest. Lovitt and I were division to see what a drug addict looked schemes and so forth. The High Court get so cross; they always ask, ‘how can Domaszewicz trial for eight weeks and we years ago, he recounted to the court both subject to many other threats in like. It sounds stupid, but we were all attitude to tax avoidance prior to the you defend someone if you know they’re didn’t argue. We weren’t going to—he’s that, at the time of his appointment Western Australia, including the threat that naive then. Within a few years, more was, ‘Well, it’s guilty?’ I got asked that all the time when too-good-a judge. But I don’t want to go in 2006, his eldest son Nic had come of being struck off the roll of counsel than 50 per cent of serious crime was Australian to arrange your affairs so I was a younger barrister… One answer without saying: people shouldn’t do what to see him and asked, “Dad, do you in disciplinary proceedings initiated drug-related in some way. Armed robbery as to minimise your tax’, encouraged is: you’ve got to—you don’t have any I did. It’s fair to say a lawyer’s place is on know what is required of you?” John by the Barristers’ Board. The offence ceased to be a crime motivated by that by judgments of no less than the Chief choice legally and it’s an ethical offence his feet and not on his knees, but there responded, “Nic, what is required alleged against me was that I drew a most noble of motives, greed, and became Justice, Sir . But after to refuse a brief. were times when I was a little cheeky. It’s of me?” Nic replied, referring to the notice of appeal which claimed that the motivated to obtain money to buy drugs the Costigan Commission and the I love the Bar. I’m retiring now, and in the nature of the beast, I’m afraid, and I Book of Micah, “You are required to Mickelberg brothers had been framed. —plus robberies of chemist shops and publicity it generated, the attitude I’ve probably just about had enough, wouldn’t recommend it to my colleagues.” act justly, to love mercy and to walk Lovitt generously assisted me for so forth. Drug-related crimes against the changed enormously—now people humbly with your God”. Addressing about two years while I fought off this person as well as property—none of that weren’t as tolerant of anyone milking the Court, John then said, “Can I say charge, so that I could continue to act existed when I first came to the Bar. the system. We’re currently going The Hon John Gilmour QC to you, Nic, and to all here, that I have as Peter and Ray Mickelberg’s barrister. I wasn’t necessarily briefed in the through that issue again. endeavoured to do just that”. There Bar Roll No 2919 When Lovitt too was threatened with hopeless cases—we’ve all been briefed The third one is sex cases. When I is no doubt that John managed to do being struck off, we used to joke about in hopeless causes. When you win ‘em, was a young fellow at the Bar, you were t was in the mid-1970s that the out of his bedroom window and was what was required of him. who would get struck off the Bar Roll the media and the police act as though allowed to ask a woman who’d been young John Gilmour, a Scot who overwhelmed by the shimmering John passed away at his home, first. But we never considered looking you’d interfered in them. That’s how allegedly raped in her own home, you had only a few years earlier fields and endless blue sky. He surrounded by family, at the age of 69 after our personal interests instead they acted in the Domaszewicz case and were allowed to ask how often she’d graduated from the University of decided to stay. on 6 February, 2021. He is survived of our clients’ interests. The prisoners how they acted in Perth when a former had sex, who with—even if it was with Dundee,I found himself travelling Despite early thoughts of becoming a by his wife, Marcia, and his children were entitled to be represented in head of the Perth CIB died from a bomb her husband. Totally irrelevant issues, near Kashmir and, because of some farmer, he embarked on what became Tracy, Nic, Kathryn, Emily and court, and Lovitt and I were the next planted in the passenger seat of the car but calculated to embarrass her and possible Indo-Pakistan conflict, a stellar legal career. He joined the law Joshua. cab off the rank. he was travelling in. The gut reaction of blacken her name with a view to allowing having to quickly depart and find his firm EM Heenan & Co in Perth and It is hard to believe that John Lovitt was also fined $10,000 in 2003 some was to say the jury must have been an accused person to say, ‘She must next destination. He chose Western became a partner within a couple of has passed. But the extraordinary after calling Queensland magistrate tampered with. have wanted it—look at how she’s been Australia. On arrival, he boarded years. He subsequently established example John set in his commitment Bruce Zahner a “complete cretin” I’ve always thought that change is behaving’. You can’t believe that those a bus to Katanning, a town some Gilmour Solicitors, where he practised to justice, faith and family, will not be during a case. He thought it lamentable happening inexorably all the time. Take attitudes existed but they were laws 270km south-east of Perth, to visit until 1989 when he was called to the forgotten. that he couldn’t use the defence of the criminal law. Four areas that I’ve said when I was a boy at the Bar. We don’t a family to whom he had a distant Bar. He took silk in Western Australia TOM PORTER, QUAYSIDE CHAMBERS, “truth and in the public interest”, as have changed enormously regarding the cop that sexism now. Juries are more connection. Rising on his first in 1994 and in Victoria in 1996. In 2006 PERTH he could have in a defamation case. attitude of juries since I came to the Bar: prepared to convict now on less evidence morning in Katanning, he looked he was appointed to the Bench of the

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He developed a substantial until his retirement in June 2010. When many would have given up, of his 80th birthday and only a few matrimonial causes and personal At his welcome ceremony, he was many did. months from becoming a 50-year injuries practice, in particular on disappointed that his two eldest were Mostly the tracks were firm, the air fair. Legend of the Bar. back of the lift back circuit. He went to many circuits unable to attend and amused that his You were at trackside Michael was one of Rose and Jim’s including Horsham, Wangaratta, youngest had permission from school Morning and night, gallop after gallop. six children. Educated at St Kevin’s and Geelong. His Honour had to attend his father’s “christening”. Rough periods were ridden out. College, he there established lifetime a very large circuit practice at His secretary, Fran Merrington, You weren’t, as far as we can tell, friendships with Bill White, Peter Wangaratta, to which he regularly became his associate, the first female to be nobbled, (“Gol”) Golombek and Dennis (“Den”) travelled at speed. Caught by an associate in the County Court. She Not even by the Malvern pub mob, Davies—all of whom went on to unmarked police car 20 miles south remained throughout Jack’s tenure And so you have checked in study law at Melbourne University of Wangaratta, in an extraordinary and remains still at the County Court. “correct weight”. and become legal luminaries. Given display of persuasiveness, he Jack’s handwriting was so poor he His readers were Douglas Tucker, Michael’s non-pugilistic, gentle and explained to the police officer that wrote his judgments in longhand in William O’Dea, Bruce McTaggart and caring nature, it remains a mystery in his new Mercedes, which was capitals on the kitchen table so Fran David Martin. why St Kevin’s appointed him, as a turbo charged with power steering could type them. His Honour was a very keen cadet, to be sergeant in charge of the and hydraulically controlled bucket A meticulous, careful and sound racing man and he and his great mortar squad. The abovementioned seats, it was hardly possible to do judge, reinforced by common sense, friend Judge Bruce McNab regularly comrades in arms uncharitably less than 140 kilometres an hour. So, he was prepared to back himself. attended the races. His Honour reminisce that, at Puckapunyal, John spent the last 20 kilometres into Rarely was he successfully appealed. appeared many times as an advocate Michael spent more time playing Wangaratta behind the wheel of the In Dietrich v R (1992) 177 CLR 292, on behalf of the stewards. He was cards with them than attending to police car, while the constable had a his Honour refused to adjourn a chairman of the Racing Appeals the armoury. go at the Mercedes. criminal proceeding as the accused Tribunal. Upon his retirement in Michael was, however, imbued As a barrister, Jack was very highly had failed to obtain legal aid. The 2010, he became a senior sessional with a non-showy competitive streak The Hon John Nixon regarded. He never applied for silk, trial went 50 days. An appeal against member of VCAT principally to hear and was a skilful sailor, representing wishing to be judged on his ability the failure to adjourn to the Court of racing appeals Victoria in interstate regattas. He was Bar Roll No 595 as an advocate. Appointed counsel Criminal Appeal was unsuccessful His body failed him but his also first onto the dance floor and ohn Nixon was born on At Trinity College, he assisting Sir Esler Barber’s Board of with three judges refusing leave. mind did not. He died on 11 March, could do an extraordinary rendition 18 July, 1935. At age 12, he enthusiastically participated in all Inquiry into the Occurrence of Bush However, in a majority decision, the 2021 after drinking one last glass of of line dancing to Chubby Checker’s won a full boarding aspects of college life, receiving and Grass Fires in Victoria after a High Court upheld the appeal five to white, surrounded by his family in “Do the Huckleback”. scholarshipJ to Geelong Grammar. a university blue in squash and a particularly disastrous fire season in two. No complaint was made about good spirits. Michael’s university years Unsurprisingly, he was a school half blue in tennis. He was a more January and February 1977, he faced his Honour’s conduct at the trial. We offer our condolences to his were financed with the aid of prefect, house captain, school than capable cricket player, rower 10 parties with four of the leading A gregarious but not clubby man, friends, family and his son James a Commonwealth Scholarship, librarian and cadet under officer. and footballer. He was undefeated common law silks of the day. his joie de vivre was legendary. who, like his father, is a senior junior supplemented by vacation jobs such A member of the debating society in tennis in the intercollege In “The Man from Wangaratta”, ED Circuit dinners were a highlight; at our Bar. as driving a Coca Cola truck. Upon of which RC Packer was secretary, championships over his years (Woods) Lloyd QC, who appeared stories were legion and have passed BILL GILLIES graduating, he completed Articles he seconded the motion that in college, not losing a set. He on behalf of the CFA, described (to into legend. Popular, with a quick in Wangaratta and was admitted to the house would welcome the also excelled in law at university, the metre of “The Man from Snowy wit and turn of phrase, he enlivened practice in 1968. He then returned introduction of a state lottery into obtaining the exhibition in contract River”): many a circuit, especially Geelong to Melbourne and practised as a Victoria, which was prescient: his law and graduating with honours. One was there, a junior, John Nixon from where he commuted from his solicitor for a short time with Minter father, a bank manager, later won Articled to Allan Lobban of Blake & was his name. beloved Anglesea. Ellison. Michael came to the Bar in £100,000 in the first Opera House Riggall, he was admitted to practice Built something like a racehorse His vast experience and knowledge July 1971 and read with the Hon Sir lottery. He had a leading role in the on 2 March, 1959, signing the Bar Roll over size. meant that fellow judges often Norman O’Bryan QC. school play, won the school open on 3 April that year. With a touch of Lanark Clydesdale called on him for advice and a queue When Michael joined Foley’s tennis championship, the history His reading period was cut short in his formidable frame, could be seen outside his door of a List, Jim Foley and his son Kevin prize, a Commonwealth Scholarship after a month as Tony Murray (later A counsel as rich respondents prize. morning. On his retirement, Judge quickly appreciated that Michael and a scholarship to Trinity College his Honour Justice Sir Basil Murray) He was big and tough and ugly, (Peter) Gebhart composed a poem: would willingly and capably take at Melbourne University. took silk. So, Jack left for England. just a sort that won’t say die. “A Stayer” on multiple daily briefs. It was John (universally known as Jack) He read with Peter Webster (later his There was courage in his quick Ah, you have reached the winning post, not uncommon for Michael to was also president of the Pilgrims Honour Justice Webster of the High ungainly tread, And the jubilant crowds toss hats simultaneously juggle half a dozen Society, who were engaged in Court) in the chambers headed by And he bore the signs of courage and hands or more briefs, acting 50:50 for the church outreach in Geelong. There Lord Scarman in the Middle Temple. in his mildly bloodshot eye Into the air in approbation. Michael James Ruddle defence and the prosecution in he developed his adversarial and Jack then returned to Australia where And the dull persistent throbbing Bookies weep. Bar Roll No 961 criminal cases. In later years social skills and was able to, in racing he commenced reading with John in his head. It’s been a long race, longer than Michael increasingly embraced ichael Ruddle passed parlance, “back his own judgement”. Mornane (later Judge Mornane of the Jack was appointed on 5 March, most of us the common law jurisdiction and away on 20 March, Thereafter he was an irregular County Court). He read for 18 months 1981 to the County Court of Victoria, Can recall, but that’s your style, quickly became the go-to barrister 2021, one day shy churchgoer. in Selbourne Chambers. where he remained for 29 years To outdistance distance, to keep on going M of choice for an array of personal 86 VBN VBN 87 back of the lift

injury law firms. As one of his tired of being the honorary “Dims”. Then there were his “boys”, Paired with Jacqui’s creative Dan Christie Twilight is defined as: “the soft three readers, I never ceased to moderator of Noosa Surf Club’s Campbell and Fergus, of whom he streak was a formidable legal mind. glowing light from the sky when the be amazed by Michael’s work one-man disciplinary committee and was immensely proud. And, in more Across the first decade or so of her Bar Roll No 3040 sun is below the horizon, caused by back of the lift back capacity. Every afternoon around returned to Melbourne, resuming recent years, Michael always had legal career, Jacqui worked as a the reflection of the sun’s rays from ur Bar has had its share of 4.30pm, Michael would return practice as if there had never been a sparkle in his eyes when setting commercial lawyer at DLA Piper the atmosphere” (a very emotive larger-than-life characters. to his bolt-hole on the 9th floor an interruption. off to babysit his grandchildren Felix and Meridian Lawyers in , definition). While dusk is defined as Daniel John Christie—“Dan” of ODE, with his wreck of a wig Regardless of whether he was in and Matilda. and also spent time volunteering “the darker stage of twilight”. The point to all—fitted that bill. (bettered only by Jack Keenan’s or out of court, Michael was never A celebration of life was held in at the Queensland Public Interest of all this, I feel that I have now moved ODan’s path to the Bar started threadbare toupee) skewed ruffled. He was a true gentleman Michael’s honour on 16 April. Covid Law Clearing House. She developed into my twilight (not dusk just yet, but I at Yarra Valley Grammar School. sideways on his ginger-haired pate, and never had a bad word to say severely limited the number of a particular penchant for insurance regret to say it feels a lot like twilight)… He was an excellent student and and his frayed and tattered gown about anyone. people who were allowed to attend, law and was renowned for her attended Melbourne University from It was not surprising that Dan falling perilously off one shoulder. Away from work, Michael loved to but those who could paid tribute to incisive pleadings and expertise 1985 to 1989, graduating with degrees had a finely tuned sense of the There he would cheerily greet the join his colleagues at Num Fong, C II, a truly exceptional father, brother, in procedure. in law and commerce. For much of his stages of twilight. Fishermen have waiting throng of maimed clients or Oriental Teahouse—wherever the colleague and friend. Michael is Whilst living in Brisbane, Jacqui time at University, he lived at Queen’s a finely tuned sense for the period and accompanying interpreters white wine was priced moderately— sadly missed but no doubt joyously was diagnosed with breast cancer. College, where he made many friends after sunset, and Dan was an avid (usually Frank Manier or Anna and he was always great company. reunited with Dims. With the enduring love and support and was a full participant in college fisherman. He loved his fishing so Paraskeva) before being updated He was also an astute investor and TIM RYAN (VICTORIAN BAR 1984–2019) of her husband and soulmate, Nigel, activities, representing Queen’s in much that he may, on a particularly on the plethora of messages taken was often seen in Foley’s with his she adapted to life’s new challenges, football and cricket and loving the beautiful day during the 2020 by his beloved wife Dimity, who head buried in the Fin Review. With and together they continued to make social side of university life. He also pandemic crisis, have appeared in was busily clattering away on her his friend and business partner, plans for their future. played football for University Blues the County Court via Zoom from overworked Remington typewriter. Vincent Verduci, Michael is thought After Jacqui’s cancer went into in the VAFA. the cabin of his boat, having to Michael would then thread his way to have owned more hotels than remission, the pair moved to Dan the barrister was a fighter. He mute himself at one point when a through the mountains of briefs that are on a Monopoly board. Then Melbourne. Inspired by the sea was exceptionally hard-working and particularly noisy two-stroke tinny occupied every possible surface there was his love of the mighty change and her own fearless drive had a strong courtroom presence. went past. The whiting and calamari of his unassuming chambers and “Tiges”, with Michael residing within for new challenges, Jacqui pursued At Dan’s funeral, one of the have breathed easier knowing that unearth his desk before welcoming walking distance of The “G” so he a career at the Victorian Bar. eulogies was given by Justice Dan is no longer plying the waters in a client. When conferring was could stroll across to see “Hungry” Within weeks of finding out Michael Osborne. His Honour, off Queenscliff. over, Michael would religiously take KB take a screamer. And let us not that she had passed the Bar exam, who worked with Dan at Purves Dan was loved and will be home six or so requests for pleadings forget Michael’s appreciation of the Jacqui Katsivas Jacqui learned that her cancer Clarke Richards in the 1990s, sorely missed. and other interlocutory paperwork ancillary benefits of attending legal had returned. Undeterred and in Bar Roll No 5061 relayed a story about Dan basking VBN and work long into the night at his conferences, no doubt to quench his somewhat superhuman fashion, in the glory of being described, by dining table. His capacity for work thirst for continuing legal education. acqui Katsivas passed Jacqui set about the task of battling a then senior partner of PCR, as an Jeffery Gyles was truly phenomenal. Indeed, if a hotel in Positano or a away, aged 36, on 31 March her cancer, whilst completing the “unpolished diamond”. While the Michael was very much the cruise ship on the Adriatic offered 2021 after a battle with readers’ course and commencing her Bar Roll No 1261 diamond may have undergone a plaintiffs’ champion and strove to a swimming pool and low-priced breast cancer. career as a junior barrister under J certain amount of buffering over n 15 April 2021, Jeffery Arthur secure the best possible result for his white wine Michael would usually Jacqui was born on 15 November, the mentorship of Georgina Costello the years, the description remained Gyles passed away from clients. He would always consider a become a regular and returning 1981 in Adelaide. Jacqui’s parents, QC. Whilst balancing the demands apt to the end. advanced Parkinson’s disease sensible settlement proposition, but if guest. At one such conference Kay and Sam, recall that from the of her health and her legal pursuits, In April 2020, Dan was diagnosed and Lewy body dementia. The this wasn’t forthcoming he proved to (Chicago, 2007) Michael and Dimity, outset, Jacqui was fearless, and she also managed to make time to with pancreatic cancer. Almost a year Ocommunity of the Victorian Bar, his be a formidable advocate and it was together with Barbara Phelan and would never shy from doing things meaningfully build friendships with later, he passed away at the age of family and many friends lost a good “game on” once he rose to address Jim Parrish, formed the “Chicago contrary to what people might expect, her Bar colleagues, bolstered through 54. In the interim, many of us were and gentle man. the judge or jury. Michael was also 12”. The six-couple group still or “her way”. her many donations of home-grown lucky to learn about Dan the writer. Jeff was born on 13 October, 1937. likened to St Jude in that he would reunites periodically to ponder what This approach put her in good vegetables and baked treats, and He penned email updates, roughly His secondary education was at Box take on and doggedly fight cases that others who attended the conference stead to become an outstanding hilarious stories of her beloved monthly, to a close circle. His last Hill High School and Longerenong other counsel considered unwinnable sessions might have learned. One person—and lawyer—and to lead a dog, Pepper! poignant message reminded us of Agricultural College, which he and hence unprofitable. can only guess the extent to which rich life, despite its cruel shortness. Jacqui’s colleagues looked to her Dan’s gentle side and his ability attended with his twin brother. He Radical legislative change saw Michael regaled the Chicago 12 In Jacqui’s formative years, as a friend and mentor. When it came to unflinchingly, and sometimes matriculated from Longerenong the concise and perfectly functional delegates with his profound and she developed a keen passion to helping others, Jacqui was ever beautifully, call it as it was: and briefly studied agricultural Worker’s Compensation Act 1958 intriguing knowledge of the American for creative pursuits including patient and unerringly generous. science at Melbourne University. replaced by a 748 page tome of Civil War. theatre, art and crafts, and music. She enriched the lives of many, and Have you ever wondered the Finding ag science not to his liking, largely incomprehensible statutory Above all Michael was devoted These passions followed her to it is bittersweet to think of what difference between ‘twilight’ Jeff quickly transferred to the law gymnastics. The wholesale changes to his family. His wife Dimity (who the , where, Jacqui could have accomplished and ‘dusk’? No? Not surprising, faculty. Whilst at university he lived to both practice and procedure no passed away in 2011) was his while undertaking her law studies, in her career, with more time. neither have I…until just now. at Trinity College, where he was doubt prompted Michael to pull up one true love, and Michael’s last she participated in the Law Revue She will be greatly missed. Interestingly, they are not synonyms a full participant in college and stumps and relocate to Noosa for words to me were how much he as an actor, prop designer and, LUCY DAWSON AND ANNA O’CALLAGHAN as I expected. Dusk is in fact a stage university athletics activities as several years. However he eventually looked forward to reuniting with later, director. of twilight.

88 VBN VBN 89 well as off campus running with the No 839) who predeceased her on niche practice in acting for the large East Melbourne Harriers. Jeff was 29 March 2018 (Bar News, No 163). plaintiff law firms in procedural special tribute a talented runner and with the late Margaret died of complications of matters, particularly in the Major

back of the lift back Stanley Spittle formed a duo that won dementia, which she had suffered for Torts List. many championships. some years and which saw her enter Margaret retired from practice He completed articles at Arthur into care after Brian’s death. in June 2000 but she did not depart Robinson and was admitted to Margaret was born in San from the life of the Bar. She kept a The Hon Peter practice on 1 April, 1966. From 1967 Francisco on 29 July, 1944. Both her small room in Seabrook Chambers until 1970, Jeff was a legal officer parents served in the US Navy in and took over the administration of with the RAAF with the rank of flight the Second World War. Margaret’s the chambers. Cadden Heerey lieutenant. In 1970 he left the RAAF father was a Mustang fighter pilot Upon arriving in Australia, perhaps and moved to the UK for six years, who was injured in action and died of because of Brian’s long service AM QC working as a solicitor prosecutor complications from his injuries when on the VFA and AFL Tribunals, with the Thames Valley Police based Margaret was only seven years old. Margaret—somewhat unusually for in Oxford. Jeff loved his work, loved Margaret’s mother later remarried an American—became a fervent Bar News’ editors farewell one of their own: travelling to country courts in his and a sister was born in 1956. devotee of Australian rules football. the Hon Peter Cadden Heerey AM, QC blue MGB, which he brought back to Margaret took an Arts degree and This devotion continued until it Australia, and he loved pub lunches. qualified in teaching, graduating was supplanted by an even greater s The Mercury On returning to Australia, Jeff from Ohio State University in June passion which Margaret developed, reported under signed the Bar Roll on 8 April, 1966, and thereafter taught at schools in approximately 2000, for horse the byline, 1976. He read with Joseph Meagher in Ohio and Idaho before, in 1971, racing and all things equine. She “’Proud and (later a County Court judge), teaching in Cartagena, Colombia. joined all the Melbourne racing clubs passionate’ accepting briefs in both criminal Margaret was holidaying in London and attended virtually every city race judge” (May 10, and civil jurisdictions. Over time, Jeff in 1972 when, as fate would have it, a meeting. She learned to ride and 2021), Peter was a Tasmanian barrister and developed a largely civil practice young Victorian barrister was staying enjoyed going to muck out the stables solicitor, a Victorian barrister, and a nationally with several loyal instructing at the same hotel. When she left to even when she was not riding. respected judge of the Federal Court of solicitors. Jeff never sought the return home, Margaret intimated that As the sun set over Port Phillip Australia. He returned to the Bar in 2009 on his limelight or appointment to high if Brian ever travelled to the US, he Bay on a beautiful autumn afternoon retirementA as a judge, continuing to contribute office. He was content with his loving should look her up. Margaret used on 30 April 2021, a number of her both professionally and to the life of the Bar. family: his wife Deborah (associate to tell the next chapter in the story: former Bar colleagues and many In 2012, Peter was made a Member of the to Judge Wilmoth), his sons Hugh, “Well, the next minute there he was friends reflecting the varied strands Order of Australia. He died on 1 May 2021. Lachlan and Alex, their families and on my doorstep—in San Francisco”. of her life gathered to farewell Peter was the unofficial patron of Victorian ultimately, his five grandchildren. Margaret decided to move to Margaret, to listen to “If you’re going Bar News, which he co-founded in 1971 with His sons are respectively a lawyer, a Australia, arriving in December 1972, to San Francisco” and reflect on the the late Richard McGarvie QC. Peter once builder and a post-graduate student. and married Brian in November 1973. many happy friendships she and claimed that VBN is the oldest professional On 1 June, 2003, Jeff retired They lived in Mt Eliza throughout Brian shared. publication of a separate Bar in the common from the Bar to pursue his passion their marriage and both were ANDREW INGRAM QC law world. In his memoir Can You See for World War II military history, prominent in the local community. the Mountain, Peter gave his account of a especially aviation. He was equally They had two children: David, who university lecturer who would mark essays passionate about all things Scottish, died in tragic circumstances in 1993, with comments like “factually correct, but Lawrence of Arabia, Winston and Andrea, who qualified in law and lacks colour and amusing anecdotes”—this has Churchill, the Essendon Football practised as a solicitor, but now farms become de facto VBN editorial policy. Club and John Coleman. in the western district with husband Given Peter’s long and continuing association Over the last three years, Jeff’s Nick Armytage and their young with VBN, it is striking that Peter kept health progressively deteriorated. children Henry and Audrey. private that most relevant of matters, his Jeff passed away surrounded by his At the time I met Margaret in own cancer diagnosis two years previously. family. He will be sadly missed. 1988, she had decided to study law In the meantime, Peter remained a lively PETER CHADWICK QC as a mature age student at Monash part of our small publishing community. University. She completed her degree We received regular emails, phone calls and Margaret Virginia Collis with First Class Honours. Brian contributions from him. Last year, when we moved her admission to practice were considering going digital during COVID, Bar Roll No 2869 on 1 June, 1993. Margaret read with Peter wrote, “It would be a great pity if one argaret Collis died Richard Boaden and signed the Bar issue disappeared into the vast wastes of the on 24 April, 2021. Roll on 25 November, 1993. Whilst Internet”. Peter’s review of the Hon Robert Margaret was the Brian practised in the cut and thrust French’s The Tuning Cymbal is published widowM of Brian Collis QC (Bar Roll of common law, Margaret found a posthumously in this issue. 90 VBN VBN 91 Victorian Bar Readers march 2021 special tribute special

LEFT: Peter Heerey answering the requisite Bar News Quiz after taking silk in 1985. RIGHT: Featured on the cover of VBN Issue 76 when welcomed as a judge (with the Hon Michael Black AC, QC on his appointment as Chief Justice to the Federal Court).

Born in Hobart on 16 February, The first 1991 issue of Bar News if, at the start of his life, he had 1939, Peter graduated with first class contained its traditional Welcome, been offered the option of signing honours in law from the University of featuring Peter on the cover. This a contract to live the wonderful life Tasmania in 1961. He was admitted referred to his family, of paramount that Peter had lived—filled with as a barrister and solicitor of the importance to Peter throughout his family, friendship, meaning and BACK ROW (LEFT TO RIGHT): Peter Turner; Shawn Rajanayagam; Christopher Fitzgerald; Supreme Court of Tasmania. After life. As was noted, he married Sally success—he definitely would have Nicholas Petrie; James Page; James Penny; Conor O’Bryan; Andrew Sprague; Shane Dawson; Luke Perilli; winning a scholarship in company Macdonald in 1969. They had three signed that contract. SECOND ROW: Christian Farinaccio; Michael O’Haire; Emile Goldman; Cal Viney; Christin Tom; and industrial law, Peter pursued boys—Edward and twins Charles and Peter was a tremendous supporter Minh-Quan Nguyen; Julia Wang; Sophie Molyneux; Manu Chaudhary; Ahmed Terzic post-graduate studies at the Tom, “well-known for helping his to successive editors of Bar News. He THIRD ROW: Vanessa Bacchetti; Phoebe Prosser; Nicholas Boyd-Caine; David De Witt; Tim McCulloch; Lachlan Hocking; Ben Thompson; University of Melbourne and worked Honour’s Bar colleagues consume was warm, welcoming, and generous Charles Pym; Nicholas Baum; Liam McAuliffe: Lisette Stevens; Kate Lyle; Ella Zauner; Sophie Stafford; Raymond Elishapour; Zoe Anderson; as a solicitor in Melbourne for a time appropriate amounts of alcohol on with his time, often sharing his SEATED: Georgina Rhodes; Amanda Storey; Anabelle Tresise; Jacqueline Fumberger; Lara O’Rorke; Monique Hardinge; Nadia Deltondo; at Corr & Corr. He then practised law festive occasions”. interest in history and literature, Andrea Tate; Mietta McDonald; Sophie Kearney; Julia Nikolic in Tasmania, becoming a partner of As was recorded for posterity wisdom, and deep understanding of a Hobart law firm, Dobson Mitchell in that issue, Peter had many the culture of the Bar. Peter was a & Alport. extra-curricular activities and skills. stalwart supporter of our informal The lure of the Victorian Bar They extended to royal tennis, launch events, raising a glass to Victorian Bar Council proving irresistible, Peter signed the skiing, cycling, wine appreciation, the next issue and offering his 2020–2021 Victorian Bar Roll in May 1967. He lunching, photography, cricket and compliments. It is now our turn to took silk in 1985—his companions a remarkable memory for poetry raise a glass to him. that year included Bernard demonstrated by his instantaneous THE EDITORS, VICTORIAN BAR NEWS Bongiorno QC, George Beaumont rendition of “Clancy of the Overflow” QC and Robert Richter QC. Peter’s to the Irish Bar in Dublin in 1989. contributions to the Bar were many Indeed, as friends and colleagues A judgment surely should not bore. and varied. He was a member of the will know, Peter’s interest in poetry The judge can postulate the law, Victorian Bar Council from 1969 to extended to writing and publishing Adjudicate on points of fact, 1973 and was co-editor of Victorian many such poems collected in the And do so with finesse and tact. Bar News from 1971–1974, and then slim volume A Moment’s Delight. But still engage in modest fun— from 1986–1990. At a moving and packed service on A quip, a joke, a harmless pun. During his time as a barrister, 14 May, 2021 at St Patrick’s Cathedral, It’s rather nice if judgment draws on Peter also served as a councillor his son, Ed Heerey QC, gave tribute Shakespeare, Pope or Henry Lawson. on the Hawthorn City Council (1973– to his father’s personal qualities as a And why should critics get all snooty 1979), as chairman of the Victorian generous and accomplished husband, At metaphor from sport, like footy? Psychological Council (1984–1990) a loving father and grandfather, So I don’t think that one should curb and as honorary secretary of the who had a great capacity to make Adventurous use of noun and verb. Australian Institute of Judicial connections with people, many of And why not play up to the gallery? Administration (1981–1986). whom visited Peter during his last At least have fun, if not much salary. BACK ROW STANDING: L-R Robin Smith (Assistant Honorary Secretary), Paul Kounnas, Nicholas Phillpot, Lana Collaris, Darryl In December 1990, Peter was months. As Peter contemplated the Justice Anon, described by Peter Burnett, Suzanne McNicol AM QC, Lachlan Molesworth, Paul Hayes QC, Joel Silver (Assistant Honorary Secretary), Nawaar appointed a judge of the Federal big metaphysical questions in his Heerey as his “mysterious friend”. Hassan, Ben Murphy, Peter Chadwick QC, Paul Holdenson QC, Ian Freckelton QC, Amy Wood, Roshena Campbell Court of Australia, based in final days, Ed consoled him with a VBN 165 FRONT ROW SEATED: L-R Robyn Sweet (Assistant Honorary Treasurer), Roisin Annesley QC (Senior Vice-President, Christopher Melbourne, a position he held until legal analogy based on contractual Blanden QC (President), Helen Rofe QC (Junior Vice-President), Mary Anne Hartley QC (Honorary Treasurer). his retirement in February 2009. certainty. Ed put to his father that ABSENT: Eugene Wheelahan QC, Ben Jellis, Eddy Gisonda (Honorary Secretary)

92 VBN VBN 93 boilerplate

Blue Bag Thus, might I suggest you positively undertake the following steps (in this order) for you to rejoin Dear Blue Bag, the widely renowned and admired community Boilerplate So good to hear from you. It has been a while. of advocates that is known as The Victorian Bar, Yes, I’m still alive and (unlike over 800 other of which you remain a proud member: RED BAG, BLUE BAG Victorians who tragically passed away from Covid Don’t “get on the beers” at home on your own last year) thankfully I did not succumb to the just because we’re in lockdown again. Try and dreaded virus, the WuFlu, the absolute beast, or cut back for a while as you try and rebuild new, whatever else Dan, Donald, Brett or Jeroen call it good habits. these days. Unlike the rest of Australia, 2020 was Trim your beard (only His Honour Judge a needlessly tough year for many here in Victoria. Smallwood can really get away with the long And no, I did not relocate to Sydney and move flowing Ned Kelly look). into chambers with Bret and Noel. I’m still here Find yourself a pair of trainers and possibly Red Bag in chambers in Melbourne standing strong a bicycle too and start walking or cycling to with you and quietly hoping for a litigation led chambers. Sit mens sana in corpore sano! recovery of the Victorian economy. Make a commitment to come in to chambers Dear Red Bag, Blue Bag, I am somewhat concerned for you. three-to-four days per week.

I fear that you have developed poor habits during When you are in chambers, (if you are not in During Covid I let myself Covid which are not good for your physical and Court), resolve to meet up for coffee each day go. I grew my beard until I mental health and wellbeing and that you have with one or two colleagues whose company you looked like the Unabomber possibly become anthropophobic! At the time enjoy and have missed. in Webex hearings. I of writing (in the middle of While working on Briefs in watched my Millennial Lockdown 4.0), I suspect you chambers, discuss your thoughts opponents looking like Don’t “get on the are still buried beneath the on cases with your peers or those touched up television duvet in the comforts of your beers” at home on your on your floor—this is in the finest presenters flourish with fashionable inner-city abode. traditions of the Bar and your their vastly superior PDF own just because we’re While I am sure there colleagues’ input will be subtly and skills, adapting effortlessly has been a pick up in the in lockdown again. Try positively reflected in the quality to the online environment. mid-week mid-morning and cut back for a while of your work. When Dan Andrews coffee trade in North Fitzroy If you are still struggling, then announced the extension as you try and rebuild and Brunswick (or perhaps do access the Bar’s health and of Stage Four lockdown I in Queenscliff or Lorne new, good habits. wellbeing services which are treated myself to a Father’s for some of our Silken detailed at vicbar.com.au/public/ Day slab of mixed hipster colleagues), there has been a pleasing community/health-and-wellbeing. We are very NEIPAs from my local number of barristers quietly and responsibly fortunate to have very good discreet resources brewery. I watched my son working in chambers during the current to confidentially support our colleagues in need. learn vital home schooling “circuit-breaker restrictions” undertaking So, if it is all a bit hard, don’t be shy in reaching skills—like how to split his “Authorised Work” in accordance with the out to your colleagues or any of the services the screen so he could watch current state government directions. Bar offers. some belligerent YouTuber It shouldn’t be long before schools are back The above steps should do the trick, Blue Bag, while his teacher observed open again, so once that happens, you should however I really do wish you had written sooner. him listen attentively. I be able to more easily return to chambers to Had you have done so, my advice would have descended into a dark undertake work which you are not able to do from been really simple, “Go to the Bar Dinner!!!”. This place. Now, when I go to a home under the current restrictions (your call year’s Bar Dinner was one of the best ever. Had Commbar speed networking on this one), or go back to work once restrictions you have been one of the lucky 573 barristers event, I don’t have any ease (if that ever happens again). who managed to jag a ticket to the sold-out social stamina left. I can’t Humans are herd animals, social beings. We event, you would have: drank good wine (much face the extroverts of the like to and need to be around each other. Life is more enjoyable than a slab of hipster beer Victorian Bar anymore, let so much better in the company of others than en solo), dined well on tasty fare, and enjoyed the alone corporate counsel. struggling in monastic solitude. Plainly, Blue Bag, magnificent company of your colleagues from all I just want to crawl back you need to bounce back from your Covid malaise sectors of the Bar. It was fabulous night which into my Covid hole. How and rejoin your colleagues here in chambers, most after a difficult year, brought us all together. As can I reposition myself, and of whom having figured out during Lockdown for re-engaging with your colleagues post-Covid, orchestrate my re-entry, 2.0 that working from home wasn’t all that it was I could not think of any better alternative! post-Covid? cracked up to be and returned to chambers well Yours ever, Blue Bag before the latest lockdown. Red Bag

94 VBN VBN 95 boilerplate Judge: Mr. Smith, have you ever heard No my Lord, we do not. But we still It has always struck me as odd that a comment so of a saying by Bacon—the great spell manners with two n’s. Bacon—that youth and discretion are famous that it was inscribed on an English coin was It’s the sort of reply which might boilerplate ill-wedded companions? originally intended as an insult. only occur to most people a couple FE: Indeed I have, Your Honour; and of weeks later. has Your Honour ever heard of a But it is also the sort of reply which The Oxford Dictionary of Quotations observation is that Robert Hooke saying by Bacon—the great Bacon— most of us would be proud to think (4th ed); Simpsons Contemporary (1635–1703) was a very famous that a much-talking judge is like an up on the spot and have the courage Quotations (Simpson and Boorshin); scientific rival of Newton (1643–1726) ill-tuned cymbal? to say. The Dictionary of Australian and, like Newton, had developed There are very few advocates Quotations (Murray-Smith); The many significant scientific principles. Judge: You are extremely offensive, who are the subject of biographies Dictionary of Biographical Quotations He was a polymath (like Newton) young man. published decades after their death. (Winke & Kenin); The Dictionary of and in 1996 was described by Alan FE: As a matter of fact we both are; the The only other who comes to mind Insulting Quotations (Green). Chapman as “England’s Leonardo”. only difference between us is that I am is the dazzling, but imperfect, It is not easy to find quotations by He built the earliest Gregorian trying to be and you can’t help it … Clarence Darrow (1857–1938), lawyers. In the books noted above, telescope, and observed the rotations who was also the subject of a few there are a few quotes by F.E. Smith of the planets Mars and Jupiter. In It is hard to know whether the biographies, the first in 1943 and (later Lord Birkenhead), but in 1985 1665 he published Micrographia, exchange has been polished up the latest in 1980. It was Darrow The Quotable Lawyer by Shrager and which prompted microscopic after the event, but it appears in who devised and ran the famous Frost was published by New England investigations. His observations substantially identical form in the Scopes case, also known as the Publishing. And books of anecdotes of microscopic fossils led him to biographies by Bechofer Roberts Monkey Trial, and he acted for are common enough in the legal endorse biological evolution: several A BIT ABOUT WORDS (1926) and Campbell (1991). Dickie Loeb and Nathan Leopold in profession (I have 47 of them). If a centuries ahead of Charles Darwin. In a later case, Judge Willis and FE their famous death penalty case in lawyer is important enough to be the Hooke proposed that gravity had this shattering exchange: Chicago in 1924. Darrow once said: subject of a biography, that book will heeds an inverse square law, and inevitably include some quotations first hypothesised such a relation Judge: Whatever do you suppose I am I do not pretend to know where many Quotations by the subject of the biography. Even in planetary motion, too: a principle on the bench for, Mr Smith? ignorant men are sure – that is all that then, it’s thin pickings. which Newton propounded in his agnosticism means. JULIAN BURNSIDE FE: It is not for me, M’lud, to attempt This lengthy nod to clever law of universal gravitation. That was to fathom the inscrutable workings Darrow was famous for his quotations from lawyers is by way of the underlying cause of the rivalry of Providence. opposition to the death penalty. introducing one of the most famous between Newton and Hooke. he redoubtable (but The most recent biography of He is, for obvious reasons, quotations of all time: not by a lawyer, In addition to their notorious flawed) F.E. Smith F.E. Smith is by John Campbell, My favourite legal quotation of all referred to extensively in Life but by the famous physicist Isaac scientific rivalry, Robert Hooke was (1872–1930) was published in 1991. time was made by John Clerk. He Plus Ninety-nine Years by Nathan Newton. In a letter to Robert Hooke very short, so he could not have been the subject of a few Given that our trade is words, was a very bright barrister from Leopold (Greenwood Press 1957). on 5 February, 1676, he wrote: considered a “giant”. biographies: FE lawyers are significantly under- Edinburgh later appointed to the He is quoted as saying: It has always struck me as odd that (hagiography, by his represented in the matter of Supreme Court as Lord Eldin— If I have seen further it is by standing a comment so famous that it was son); Lord Birkenhead by “Ephesian” quotations. Perhaps the best Eldin not Eldon, although Lord I have never wanted to see anybody on the shoulders of giants. inscribed on an English coin was (Bechofer Roberts); and The Glittering remembered is the exchange die, but there are a few obituary Eldon’s name before he was The quotation is so famous that the originally intended as an insult. At Prizes by William Camp—distinctly not between Judge Willis and F.E. notices I have read with pleasure. elevated to the peerage was phrase “the shoulders of giants” was least John Clerk did not try to hide hagiography. The phrase “the glittering Smith in a case in which the John Scott). There are many books of quotations. recently inscribed on the English his purpose. prizes” is a quotation from F.E. Smith, plaintiff, a young boy, had been T Anyway, he was so bright that he My favourites include: The Book of two-pound coin. Quotations by Hooke are hard who said in a rectorial address in blinded because of the alleged was sent to London, as junior counsel, Insults and Irreverent Quotations But there is more to it. Isaac to find, and quotations by Newton Glasgow in November 1923: negligence of the tramways company image courtesy of alamy stock photo/tony smith to argue a House of Lords appeal by (Hook and Kahn); The Dictionary Newton is arguably the most famous are relatively rare (apart from the for whom Smith was acting. When The world continues to offer glittering himself—not led by a silk. of Musical Quotations (Wordsworth scientist of all time. He published “shoulders of giants” quote). And the judge heard that the boy had prizes to those with stout hearts and It was an appeal which involved the Library); The Wordsworth Dictionary the laws of motion and universal most books of quotations ignore been blinded he suggested that the strong swords. Water Act, so he used the word water of Musical Quotations (Watson); gravitation in his famous book some of the best observations boy stand up, so the jury could see quite a lot, and fairly distinctively Cassell’s Book of Humorous Philosophiæ Naturalis Principia by lawyers. Incidentally, in 1976 The Glittering him better. Smith did not like the because of his Scottish accent. Quotations; Collins Dictionary Mathematica (Mathematical (For those who are interested in Prizes was the name of a six-part idea. This exchange followed: At one point, one of the Law Lords of Literary Quotations; Magill’s Principles of Natural Philosophy, gathering quotations by lawyers, TV mini-series with Tom Conti. FE: Perhaps Your Honour would like to (who should have known better) said Quotations in Context; The Thesaurus 1687), which is generally referred to R.E. Megarry wrote Miscellany At Law That is, arguably, the best form of have the boy passed around the jury box. to him: of Quotations (Fuller); Brewer’s simply as “Principia Mathematica”. (1955), A Second Miscellany At Law quotation, although I do not think Famous Quotations (Rees); History in Much of Newton’s adult life was (1973) and A New Miscellany At Law the author of the expression was Judge: That is a most improper Tell me Mr Clerk, in Scotland do you Quotations (Cohen and Major); The spent pursuing what would now be (2005). Although they do not contain identified: possibly because it was suggestion. spell water with two t’s? International Thesaurus of Quotations considered mysticism. any of the quotations above, they set in Cambridge, and Smith went FE: It was provoked by a most His reply was quick and dangerous, (Tripp); The Oxford Dictionary of What is less commonly known in contain many excellent legal stories, to Oxford. improper suggestion. but brilliant: Modern Quotations (ed. Knowles); connection with Newton’s famous across hundreds of years.)

96 VBN VBN 97 boilerplate boilerplate LANGUAGE MATTERS I’ll crack you across the jaw, bro

PETER GRAY

n writing on “Language Matters”, Professor Threats as speech acts Peter Gray’s aim is twofold. The first aim is to focus the thinking of barristers on issues A speech act occurs when what is said constitutes the related to language in the law. There has doing of something. When a judge pronounces orders in been an enormous amount of work done court, he or she performs the act of making the orders. in the field of forensic linguistics in recent When a celebrant pronounces a couple to be married, decades. Because lawyers are prolific users of language, they are married at that moment. many believe they are experts on language. Peter wants to A speech act has three elements: what is said (the challenge that kind of thinking. The second aim is to inform locutionary act), the intention of the utterer (the barristers that such a thing as expertise in language exists, illocutionary force) and the effect on the listener (the Was the utterance a threat? without signifying equality and of relevance; in terms of conversation and that they can call upon it when it would help. Speech perlocutionary effect).2 Promises, warnings and threats I solidarity (what are you doing, mate?). analysis, it does not form an are all speech acts. They all assert that something will The obvious issue here is the act theory, conversation analysis and politeness theory are Mate can even express hostility adjacency pair with anything said happen in the future. They may be explicit or implicit, addition to the threatening words examples of frameworks through which to view, and by (you’d better watch yourself, mate). by anybody else. In addition, the direct or indirect, conditional or unconditional. While of the word bro as a form of address. which to explain, the dynamics of an event. I can find no evidence of bro being boy makes no attempt to carry out we might say, I promise you that... or I warn you that... We need to look at whether the use used in this hostile sense. Its most any threat when the policeman we do not use threaten as a performative verb. Thus, of bro might take its meaning from The incident likely effect is as a mitigating device comes close. He is passive, putting some element of interpretation is always involved in the variety of Aboriginal English On 1 June, 2020, at about 5pm, an incident occurred in in the locutionary act, softening the his hands behind his back as the deciding whether something said is a threat. It seems to spoken in inner-city Sydney, and Surry Hills, an inner suburb of Sydney. The incident otherwise hostile words. policeman instructs. be essential for a threat that the perlocutionary effect whether it might take its meaning involved five Aboriginal teenagers and three police To conclude that the boy intended If we are to reject the idea that be that the utterance is a threat, i.e. that the hearer from urban youth culture. to threaten violence would involve there was an intention to threaten officers. A policeman kicked the legs from under an feels threatened, even if the illocutionary intent is not Bro is derived from brother. It is several assumptions. The boy would violence, what can we make of the Aboriginal boy, aged 17. The policeman was holding the to threaten. For the criminal law, however, intention to used in Aboriginal English to connote be disregarding the history of illocutionary force of the utterance? boy’s hands behind his back. The boy fell onto his face, threaten will usually be an essential element of any equality and solidarity between 5 oppression of Aboriginal people by The obvious answer is that the on brick paving. Another teenager video-recorded the offence involving the making of a threat. For that purpose, males. Some years ago, I felt very police, knowing that he is inviting boy intended to convey a message incident on a mobile phone. there must also be the necessary illocutionary intent. honoured to be addressed as bro by violence by the policeman. He would to his fellow teenagers, not to the The boy was arrested and taken to Surry Hills police Whether an utterance can be regarded as a threat the late Aboriginal musician Peter be meaning to start a physical fight policeman. It was an exercise station. From there, he went by ambulance to hospital. depends heavily on the context in which it is made and Rotumah. There is also evidence with an opponent who is clearly in bravado. It was designed to The police issued a statement to the effect that the boy received. Thus, we can accept that in the play Twelve that bro has a similar connotation in youth culture,6 among African physically stronger and carrying a raise his status among his peers had been arrested after threatening the policeman. The Angry Men there was no actual threat in a young man American males,7 among male firearm. He would be introducing by demonstrating that he could video records the boy saying to the policeman, I’ll crack saying to his father I’m going to kill you, or in a juror 1 speakers of New Zealand English, overt hostility into a conversation say something outrageous to the you across the jaw, bro (“the utterance”). saying in reference to another juror Let me go. I’ll kill especially Maoris8 and among from which it has been absent. policeman, while at the same time The question is whether the utterance, in the context in him.3 In each case, the context demonstrated that there image courtesy of big stock police officers.9 For a boy in Surry Each of these assumptions is representing that he saw himself which it was uttered, constituted a threat of violence? Its was neither intent to threaten, nor perception by the Hills to address the non-Aboriginal questionable. Prior to the utterance, as a peer of the policeman. It semantic meaning (the words themselves) did. Applying hearer that he was threatened. We can also believe that policeman as bro is consistent the conversation is innocuous. It is was immature and ill-judged, but some tools of linguistic analysis, such as speech act theory, in the movie In the Name of the Father, the question with usage within and beyond about whether the policeman did or maturity and good judgment are conversational implicature, conversation analysis and Can I have a word about 54 Halsey Road?4 was a threat. Aboriginal English. did not say something, and whether not necessarily what we expect of politeness theory, may lead to a different conclusion. This The words themselves are innocent, but the character How does bro compare with mate the boy needs to open up your ears. In someone who is 17 years old. is especially so when the incident involved intercultural speaking them intends them as a threat, and the hearer as a form of address? A complete terms of conversational implicature, The circumstances are also communication, both generational and ethnic. perceives them as a threat. stranger can be addressed as mate, the utterance violates Grice’s maxim inconsistent with the policeman

98 VBN VBN 99 XXX boilerplate Conclusion BOOK REVIEW While the utterance as a locutionary act contained boilerplate an overt threat, the illocutionary force was not a threat of violence to the policeman, but an attempt to impress the boy’s friends. The perlocutionary effect was not The Tuning Cymbal; Selected Papers that the utterance was a threat of violence either. This sorry incident was the result of a misguided face-threatening act. and Speeches of Expert evidence from a linguist might help to defeat any charge against the boy of using threatening language, PETER HEEREY or to refute a defence of self-defence if the policeman were charged with assault. n 1612 Francis Bacon observed that, “Patience Gregory Wayne The Hon Professor Peter Gray AM was a judge of the and gravity of hearing is an essential part of Kable was convicted The Tuning Cymbal; Federal Court of Australia from 1984 until 2013. Peter’s Selected Papers and justice, and an over speaking judge is no of the manslaughter long-term interest in language and communication was Speeches of Robert well-tuned cymbal”. of his wife and enhanced by his experience as an advocate and a judge. His French, When the Australian Academy of Law was sentenced to work among sparked a particular Federation Press, was preparing this collection of papers imprisonment. interest in cross-cultural communication, particularly in the 2020, pp xxv, 434 and speeches, former Chief Justice of the High Court, During his legal system. This interest has led him to forensic linguistics, Robert French, modestly rejected “A Well Tuned Cymbal” imprisonment, and to membership and roles on the Executive Committee as the title, on the ground that it might convey the idea Kable sent threatening letters to his late of the peak body, the International Association of Forensic that he had ‘arrived’ rather than being still on a journey wife’s relatives. The authorities were concerned over Linguistics, since 2003. Peter is an Honorary Professor at of learning. what he might do to those relatives after his release. . I Certainly, it has been a long and impressive journey, Legislation was passed before Kable’s release. Its both in terms of the disparate subject matter, and object was stated to be the protection of the community. perceiving the utterance as a threat. His immediate geographically. As well as papers given in the Australian Originally intended to be of general application, in the reaction was to approach the boy, without taking 1 This summary is taken from the video, available from SBS capitals, the collection includes papers given in course of its progress through the New South Wales steps to protect his jaw from any possible blow. He News: https://www.sbs.com.au/news/video-of-indigenous- Wellington, Singapore, Hong Kong, London, Cambridge Parliament the statute was limited to apply to Kable was not expecting an attempt to strike his jaw. At the teen-being-slammed-into-the-ground-by-nsw-police- and Tuscaloosa in Alabama. alone. If the Supreme Court determined Mr Kable was prompts-internal-investigation, or more clearly from Twitter: same time, he questioned the nature of the utterance, https://twitter.com/MissAshlee__/status/1267417766912376833. His Honour served as Chief Justice of the High Court likely to commit an act of serious violence it had to order saying What was that? What? What was that? His from 2008 to 2017. Previously, he had been a judge of his detention for up to six months. 2 Crystal, D. (2008). A Dictionary of Linguistics and Phonetics questioning can be explained in more than one way. (6th ed.). Oxford, UK: Blackwell Publishing, p. 46. the Federal Court of Australia from 1986, having been The High Court struck out the statute in so far as it He may have felt that he had not heard the utterance appointed at the age of 39. While on the Federal Court he was directed at Mr Kable (and nobody else). From the 3 Rose, R. (1955). Twelve Angry Men: A Play in Three Acts. completely. He may have been issuing a challenge to the Woodstock, Illinois, USA: The Dramatic Publishing Company: presided over the Native Title Tribunal, established after decision, there has evolved what is commonly known boy to repeat the utterance, if he was game. Most likely, https://hieberj.weebly.com/uploads/1/1/0/3/110398915/12angm the Mabo case. as the “Kable Doctrine”, by which it is implied that en.pdf, pp. 35 and 43. the policeman’s questioning was an attempt to make Untypically for a lawyer, his Honour’s first degree at the the Constitution provides for an integrated Australian sense of the utterance. So gross was the violation of 4 Sheridan, J. (Producer, director and co-writer) & George, T. University of Western Australia was in science, majoring system of courts of which the State Supreme Courts form (co-writer). (1993). In the Name of the Father [Motion picture]. Grice’s maxim of relevance, and so incomprehensible Dublin: Hell’s Kitchen International Ltd: https://www.youtube. in physics. He is currently Chancellor of that university. an essential part, with the result that it is inconsistent was it for the policeman to accept that a threat of com/watch?v=jchuUKxlW5U. In 2019 he was commissioned by the Commonwealth with Chapter III of the Constitution, and therefore violence was being made, that he needed to search 5 Macquarie Dictionary (7th ed. 2017), pp. 192 (bro) and 195 Government to review the state of free speech in impermissible, for their institutional integrity as “courts” for some implication from the utterance that he could (brother); Arthur, J. (1996). Aboriginal English: A Cultural Australian universities. to be impaired by state legislation. understand. The perlocutionary effect of the utterance Study. Melbourne, Victoria, Australia: Oxford University Press, The present collection has 29 papers, divided into 10 The majority judgments in Kable prompt continuing p.72 (brother); Victorian Aboriginal Community Controlled was not that it was a threat of violence. Rather, the effect Health Organisation (VACCHO) & La Trobe University. (2014). parts (Indigenous Issues, Human Rights, The Profession discussion. “Public confidence in the judicial system”, was consistent with the message the boy attempted to Koorified: Aboriginal Communication and Well-Being (bro): etc.) each with an introduction by a distinguished a concept relied on heavily by the majority (see McHugh send to his companions. http://www.vaccho.org.au/vcwp/wp-content/uploads/2011/03/ commentator, such as Chief Justice Bathurst, the Hon J at 124 and Gaudron J at 107), leads to questions as to Koorified-Aboriginal-Communication-and-Well_Being.pdf. The policeman’s actions can be explained by politeness Kevin Lindgren and Professor Cheryl Saunders. The what the public’s view might actually be. The argument theory. This is based on the proposition that we all have 6 Urban Dictionary (2020): https://www.urbandictionary.com/ editor, Professor Robert Pascoe, has successfully met an was not raised by members of the Court of Appeal below. define.php?term=Bro. face that we feel we need to protect. Our positive face organisational challenge of D-Day proportions. His Honour is particularly interesting in his thoughts is our desire to be seen by others in a particular way. 7 Macquarie Dictionary (7th ed. 2017), pp. 192 (bro). Inevitably there are some overlapping topics, but there on science in the courts. He points out that the In this case, the policeman needed to be seen as a figure 8 Barlow, L. (2017). New Zealand Language: https:// is nevertheless a wide range of thoughtful and thought- intersection between law and science has become “wider of authority in the community. Thus, the utterance was nomadsworld.com/new-zealand-language/; Dalton, T. provoking comments. and deeper since 1933” when the famous case of Grant (2018). Boy Swallows Universe. Sydney, NSW, Australia: a face-threatening act for the policeman. His authority HarperCollins Publishers Australia Pty. Ltd. pp. 129-131. One decision frequently mentioned in the papers is v Australian Knitting Mills (1933) CLR 387 was decided was challenged and the boy was asserting equal status Kable v Director of Public Prosecutions (NSW) (1996) 189 (a long forgotten fact: the plaintiff, a well-regarded 9 Mills, T. & Houston, C. (2020, August 13). Policeman faces with him, by the use of bro. He acted to punish the boy investigation over alleged privacy breach. The Age, p. 3. CLR 51. It is an important decision concerning the exact paediatric physician in Adelaide, wore underpants made for this insult. boundary between community safety and personal liberty. by the defendant for a week without washing them,

100 VBN VBN 101 boilerplate something described by the Chief BOOK REVIEW forty years and has not fired a single Contrary to American propaganda, the Government Justice of South Australia at the bullet in thirty years. In contrast, in the of Guatemala was not a communist Government. In fact, time as “the ordinary custom of last year of former US President Barack boilerplate only four seats in the 61-member National Assembly ordinary people”). Obama’s Presidency, the US dropped His Honour refers to his Play by the Rules. The short 26,000 bombs on seven countries. were held by the Communist Party. experience with the concept For good measure, Pembroke then of obviousness in patent law: its business “free of such annoyances The Americans arranged for story of America’s leadership: goes on to quote Indian American whether the alleged invention, as taxes and labour regulations”. It Castillo Armas to proclaim himself political scientist, Fareed Zakaria even if novel, would have been had many powerful connections in as president. A succession of military who wrote to similar effect: obvious to a person skilled in the From Hiroshima to Covid-19 Washington including both Dulles juntas supported by the United relevant art in the light of the By Michael Pembroke China has not gone to war since 1979. brothers and Henry Cabot Lodge, the States followed. They revoked most common general knowledge at It has not used lethal military force staunch Republican strongman and of Guatemala’s democratic and the relevant time. The case was abroad since 1988. Nor has it funded or Ambassador to the United Nations. social reforms. Pfizer Overseas Pharmaceuticals v TREVOR MONTI supported proxies or armed insurgents The Guatemalan National Assembly Turning to more recent times, Eli Lilly & Co (2005) 225 ALR 416. anywhere in the world since the early established the country’s first social Pembroke analyses the Chinese It concerned the drug Viagra. The 1980s. That record of non-intervention security system, guaranteed the “Belt and Road Initiative” which arlier this year, Full Court upheld the decision is unique among the world’s great rights of trade unions, fixed a 48- has been the subject of fierce attack Peter Conrad, writing Play by the Rules. of the trial judge (the present powers. All the other permanent hour working week and levelled a and criticism by the Australian for The Guardian, The short story reviewer) rejecting the challenge members of the UN Security Council modest tax on land holders. Contrary Government and the Liberal identified Michael of America’s to the patent. One could say the leadership: have used force many times in many to American propaganda, the Party, particularly in relation Pembroke’s latest decision stood up to the test. From Hiroshima Government of Guatemala was not to the Victorian (Labor) work as that places over the last few decades—a list His Honour refers to procedural to Covid-19 a communist Government. In fact, Government’s decision to sign publication’s “Book of the Day”, led, of course, by the United States. innovations such as hot-tubbing By Michael only four seats in the 61-member up to it. He notes that the BRI entitling his review, “America (of experts) as useful. However, Pembroke Pembroke’s review of American National Assembly were held by the led to major improvements in the in Retreat … grisly history of he plainly does not consider that involvement in world affairs takes the Communist Party. construction, coordination and a bully-boy nation”. the availability of experts should reader right up until the present time. Dulles initiated a secret CIA harmonisation of infrastructure For those unfamiliar with of the Trump residency. He now lives supplant a judge’s pursuit of E He noted an increased unilateralism operation to overthrow the across Asia including the Central Michael Pembroke, he studied in Sydney and the Blue Mountains. continuing education. He goes by the USA; it has refused to ratify a Government. It was known as Asian States, as well as in Africa, History, French and Politics at Pembroke compares American on to say that judges should try single UN convention or treaty since “Operation Success”. Funds in the Latin America and parts of Europe. university, intending to become a domination of the world by countless to keep up with “an intelligent 1994. These include its failure to sum of $4.5m were made available, He points out that China is building a diplomat. Instead, as he puts it, he military attacks, assassinations, layperson’s understanding of ratify the Convention on the Rights a former Guatemalan army officer monorail in Mecca, cement factories turned to the law and became a CIA inspired coups, clandestine scientific developments in areas of the Child (it is the only country (Castillo Armas) was selected and in Iraq and a new industrial zone operations and countless military relevant to their work.” judge, undertaking a writing career which failed to do so), its failure to groomed as a rebel leader; fighters in Suez, laying fibre optic cables interventions to the role of China. A pursuit of continuing in his spare time. Born in Australia, ratify the international covenant were hired; aircraft requisitioned in Afghanistan, equipping African He notes, by contrast, the vast education is to be lauded. The he was educated in the United giving legal effect to the Universal and bases prepared. New York’s ports with defences against piracy, spread of Chinese influence across problem is, though, that the Kingdom, including at the University Declaration of Human Rights, its fiercely anti-communist Catholic establishing wind farms in Brazil and the world by economic means, relevant areas are limitless. In a of Cambridge. withdrawal from the jurisdiction Cardinal Spellman was persuaded renovating the Portuguese electricity investment and development recent paper, Justice Rares of the In this book, Michael Pembroke of the International Court of Justice, to provide support. Soon CIA agents grid, amongst other investments in projects in every continent, bar Federal Court noted that he had records the slow decline of the its opposition to the International “were writing scripts or leaflets for other countries. North America. been involved in cases concerning USA as the leader of the world, Criminal Court and more recently, the Guatemalan clergy”. On the 9 Pembroke’s analysis provides a Pembroke refers, on the one hand, accounting, quantity surveying, following World War II. The book its withdrawal from the Paris Climate April, 1954, a pastoral letter was suitable backdrop for recent calls to the massive spending by the USA fire protection, wildlife paths, is well resourced and detail is not Agreement and the UN Human read in every Catholic church in by experts and former diplomats on armaments and its war machine metallurgy, naval architecture, spared as Pembroke takes the reader Rights Council. Of course, since Guatemala warning the faithful for a shift in strategy by Australia and notes the history of direct navigation of 230m container essentially from 1945 through until the book went to print, the Biden against a “demonic force called in its dealings with China. As Philip involvement by the US since the shops in a gale, mechanical 2020. He delves into events in the administration has changed course in communism that was trying to Flood AO, Secretary of the Australian end of World War II in places such engineering, the appropriate USA which occurred prior to the end some material respects, particularly destroy their homeland”. Department of Foreign Affairs and as Korea, Iran, Guatemala, Vietnam, flooring for elephant enclosures of World War II, identifying them as with respect to climate change. In June 1954, US-trained rebel Trade from 1996 to 1999, has recently Chile, Iraq, Cuba, Afghanistan and in zoos and the mating of those the catalyst for the future. Pembroke cites an outstanding troops crossed into Guatemala said, “Australia needs to approach many other countries. On the other animals. Pembroke has drawn on his example of American aggression with lists of left wingers marked China with somewhat more nuance hand, he observes the absence of There would not be much time extensive travels, including in and clandestine operation designed for elimination. US piloted fighter and be wary of being drawn into Chinese military interventions and left for trashy novels. Trump’s America. He was in to bring about regime change in bombers strafed the capital. Air a US policy of confrontation with quotes the former Singaporean All in all a valuable and highly Washington DC at the time of Guatemala in 1954. Back then, the raids continued for several days and China”.1 diplomat and author Kishore readable collection. Watergate; Chicago when the powerful American corporation a clandestine “voice of liberation” Mahbubani: 1 Sydney Morning Herald, Former Obamacare legislation was passed; United Fruit Company was radio station operated by the CIA DFAT boss urges government to adopt New York city shortly before 9/11; China is the only major power in the Guatemala’s largest land holder and out of broadcast a stream of ‘more nuance’ in China dealings, 31 January 2021. and New Jersey during the first year world which has not gone to war in had grown accustomed to conducting false reports.

102 VBN VBN 103 boilerplate Directed v OE Gartmann v Dominion Holdings before 2019 Solutions & 2020 Judge Parrish of the County Court. Verbatim Ors before Justice Beach Cross-examination of female witness by Zoom (day 15) boilerplate of the Federal Court. It looks like the girls are off to Eminem? --- Yeah. Re-examination by Michael A Bar News tradition And you can recall that concert? --- Yeah. Wise QC. THE EDITORS MR WISE: Yes. Now, you You can recall Luzinda attending? ----Yeah. And --- were also cross-examined HIS HONOUR: Can I just ask, one thing I’ve been meaning by Mr [Peter] Wallis for to ask, and I know I’m probably going to regret asking this, n 1988, the Victorian Bar Council published photo courtesy of david caird Mr Meneses about what Former Williamstown President Trevor Eminem is what? --- A white rapper. Order in the Court – the Lighter Side of the Monti displays his interest in Ned Kelly occurred on or about 11 MR STANLEY: A white rapper? --- Yeah, a rapper. Law. The book had a single purpose: to October, 2017. Do you recall HIS HONOUR: Right. That’s the name—I see, that’s his name, publish a collection of Verbatim entries which that? Particuarly Mr ---? is it? ---Eminem, yeah, you don’t know who Eminem is? hadI appeared in Bar News in the 1970s and 1980s. WITNESS: Sorry, who is MR STANLEY: Your Honour ---? --- That’s a worry. Peter Heerey QC wrote the foreword in his then Mr Wallis? HIS HONOUR: No? --- That’s a worry. He’s almost like capacity as joint editor. He explained the context: MR WISE: That handsome Tupac—do you know who Tupac is? ‘Verbatim’ means, literally, literally. gentleman there is Mr Wallis. Two Park? --- Tupac. WITNESS: Sorry, yes. In 1971 Victorian Bar News commenced publication No? --- Wow, okay. Well, let’s just move along then. HIS HONOUR: Relative to under the editorship of Richard McGarvie QC (later [Eds: Yes, it was the witness who suggested it was time everybody else in the room. to become a judge of the Victorian Supreme Court). to change topics.] Eminem

At a very early stage, members of the Bar started to images on this page courtesy of big stock send in reports of lighter moments which occurred Cross-examination in court. These became the subject of a regular Attached is a HIS HONOUR: Yes. of witness: feature known as Verbatim. The title suggests literal transcript extract MR CHRISTIE: And there was a scene 1987 2017 GULLACI: You are known, are you not, accuracy, something which successive editors of from a case before Vickery J. The in Katz’s café in Houston Street in as Animal Steve? Bar News have striven to achieve for a number of decision is found at COI Building New York --- With thanks to John Barbaro, who forwarded the WITNESS: No. reasons—not least of course the importance which Group Pty Ltd v 100 Percent Plumbing HIS HONOUR: Yes. attached transcript to VBN. Trevor Monti QC had GULLACI: You are not? the law of libel places on the accuracy of reports of 2021 Ltd [2017] VSC 418. The transcript is MR CHRISTIE: --- that Your Honour, sent it to him under the caption, “See, I told you Ned played for WITNESS: I used to be. court proceedings. between Vickery J and Dan Christie. I’m sure, would be familiar with where Williamstown!” GULLACI: You used to be Animal? Actually “send in” is something of a euphemism. This is classic Dan. Having so sadly Meg Ryan was behaving in an unusual Cross-Examined by Mr Monti: WITNESS: No, they call me An occupational hazard of editorship of Bar News is passed away on 14 April, I think it way in the café opposite Billy Crystal. Mr Allen, I will remind you that you’re on your oath, okay? --- Yes. Mudguard now. the buttonholing by colleagues who enthusiastically would be the perfect tribute to include HIS HONOUR: Yes. I want to ask you a very serious question? ---M’hmm. GULLACI: Mudguard. recount some hilarious episode in County Court this transcript in the next edition. MR CHRISTIE: And at the end of—or Do you accept the fact that Ned Kelly played football for Williamstown? WITNESS: Shiny on top and Juries or the Practice Court—”I’ve got a great Tony Horan towards right at the end of that scene, --- You’re an idiot. Yeah, I played alongside of him. I think one day I shit underneath. Verbatim” they say. Sometimes these elusive gems MR CHRISTIE: Yes, Your Honour, a the diner sitting next to them said kicked 15 and he kicked eight. can be tracked down. More often than not, they couple of preliminary matters. First to the waitress, “I’ll have what she’s To come back to the case, you told His Honour that you thought—you just remain unrecorded. I wanted to congratulate your Honour having.” said to His Honour, “I thought Garry was ok”. Is that so? --- That’s correct. Some entries are meticulously documented and on the appointment to VCAT as a HIS HONOUR: Yes. yet fail to win editorial acceptance. Some create a judicial member. MR CHRISTIE: That is what Mr Klotz reaction not even approaching mild amusement. On a Voire Dire over Webex before his Honour HIS HONOUR: Yes. is seeking to do here. Others lack that essential spontaneity; the 2020 Judge Trapnell of the County Court. MR CHRISTIE: It’s very good news. HIS HONOUR: Well, that’s a graphic contributor is recounting some carefully crafted MR WHEELHAN (to witness): So you cite Salovey and Turk, which is at HIS HONOUR: It’s going on the CV description. How does it advance your bon mot which he (or she) has dropped on an the end of that article immediately. case? unsuspecting magistrate. As a rule of thumb, … Now, you’ve read that literature, I take it, if it’s been cited? Or perhaps MR CHRISTIE: Yes. And the second MR CHRISTIE: Could I just—I just editors have learned to treat with caution proffered your colleagues read that literature? preliminary point is, I know from Your want to --- Verbatims in which the contributor plays the WITNESS: Um, I—it’s going back a long time, but I think, um, Tony wrote Honour’s judicial writing that Your HIS HONOUR: And I might say, an starring role. that part and maybe he wrote that paragraph. So I don’t remember reading Honour does have something of an entertaining allusion to that great film. that article, that article that’s referenced there. All right?--- interest in movies, and when I sat MR CHRISTIE: I hope the metaphor In recent years, Verbatim has become a more ad WITNESS: But—yeah, sorry, go on. down to --- wasn’t too overbearing. hoc tradition. It is time to revive it! To inspire, MR WHEELHAN: It goes on to Salovey and Turk … HIS HONOUR: Amongst other HIS HONOUR: No it was colourful and in this “Verbatim Special” we provide for your WITNESS: Someone is making an awful racket there, I’m not sure who things, yes. useful and entertaining. amusement new entries, as well as those from it is. It is you, Your Honour? MR CHRISTIE: --- do these MR CHRISTIE: If Your Honour the archives of Order in the Court. HIS HONOUR: It could be me. I’ll go on mute. submissions, I was reminded of the pleases. Contact us at [email protected] with your MR WHEELAHAN: Sorry, Your Honour. 1989 romantic comedy of, When Harry HIS HONOUR: All to be encouraged. entries. Before doing so, please make sure you have HIS HONOUR: No, no, don’t worry. That’s all right. met Sally. cleared any consent or publication issues.

104 VBN VBN 105 The police The last Privy Council appeal witness from Victoria was heard in 1985 1986 was shown, in front of boilerplate November 1986. Those appearing were (as Judge O’Shea and jury, they were then) Garth Buckner QC, Graeme two statuettes: Uren QC, Michael Wright and Paul Lacava. TOAL: Now, one appears to Lord Bridge was kind enough to invite counsel be the bust of a female and to his London flat for drinks to mark the one the bust of a male. That occasion. Michael Wright was the first to arrive, would be a fair description? whereupon the following exchange took place. DETECTIVE: I don’t know M WRIGHT: Good evening, my Lord. about the bust but from the LORD BRIDGE: Come in Wright. Don’t stand on head one looks like a male ceremony. Call me Lord Bridge. and one like a female.

Stott QC was taking Scene: High Court hearing in Canberra. During Mr J Bryant Curtis through 1984 argument a large crackling reverberates through his evidence-in-chief: 1983 the courtroom. Q: Did you form an opinion, doctor …? WILSON J: Mr Goldberg, I think you are knocking your papers against A: Were you going to say something else? the microphone. Q: As to what injuries the plaintiff suffered as a MASON J: It sounds like thunder. result of the collision? GOLDBERG QC: I thought it was approval of my argument. A: Well, I wasn’t going to give a philosophical opinion on the meaning of life nor was I about to express an opinion on the outcome of the Cross-examination of de facto husband of custody American Presidential Elections. 1981 applicant before Frederico J in the Family Court: E C S CAMPBELL: Have you had any experience raising a 15-year-old girl? HUSBAND: Are you out of your mind? Marks v Swan Hill Shire HIS HONOUR: I take that answer as being, “No”. Council (1974) VR 896 at 901: 1974 CAMPBELL: To both questions, Your Honour. “It was further submitted by Mr Adams that the Plaintiff was precluded from obtaining Eleven-year-old boy giving evidence about 12.30pm equitable relief because, seeking equity, he starts to speak faster and faster. The shorthand writer did not come with clean hands since he had 1971 can’t keep up: cleaned septic tanks without the consent JUDGE READ: Now, don’t hurry … there’s plenty of time. of Council and despite the fact that he had BOY WITNESS: Yeah well … I’m getting pretty hungry. been warned not to do so.” images on this page courtesy of big stock courtesy on this page images

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