Bench & Bar Dinner 2001

Back left to right: Mark Papallo, David Dalton, Richard O'Keefe and William Walsh. Front left to right: Geoff Gemmell, Sabine Thode, Campbell Bridge S.C., Erin Kennedy, Michelle Dolonec.

The 2001 Bench & Bar Dinner was held at The Westin on Friday 18 May 2001. The speakers were John West QC and Lee Aitken. The Guest of Honour was the Attorney General of , The Hon. Bob Debus MP. A record 565 members and guest attended.

The Hon. Justice AM Gleeson AC and Ruth McColl S.C.

Back left to right: Karin Ottesen and Gordon McGrath. Front left to right: Susan Phillips, Peter Taylor S.C., Her Honour Judge Judith Gibson.

30 Lee Aitken

John West QC From left to right: Michael Slattery QC, Anna Katzmann S.C., Ian Harrison S.C., Ruth McColl S.C., Bret Walker S.C.

Kate Traill and Lee Aitken

Back left to right: John Bowers, Sunil De Silva, Virginia Lydiard, Anna Seeto. Front left to right: David Degnan, Richard Herps, Sara Bowers, Lloyd Babb.

31 ADDRESSES Bench & Bar Dinner

Speech by The Hon. Bob Debus MP, Attorney General of NSW, 18 May 2001.

our Honours, Ruth despised by the public. McColl, John West, Then onwards - to become Y Lee Aitken, ladies and minister for corrective gentlemen. In preparation services. for this evening, Ruth That role is McColl was kind enough to traditionally associated say that she would lend me with the smashing of bullet a copy of a tape or two proof glass, the wail of from the Bar’s archives of sirens and the smell of previous such events. smoke billowing across the I must say that I found it city from the walls of Long rather unnerving to learn Bay, soon to be followed even that there was in by smoke billowing from existence such an archive of the career of the incumbent tapes. In my admittedly minister of the day. Having cursory viewing, some of avoided this fate, I the participants over the naturally looked around years appear to have drawn me for new challenges. their inspiration chiefly Fortunately my from old scripts from relentless pursuit of the ‘Sydney University Law most unpopular possible School Revues’ of the career path was halted by 1970s. At any moment I The Hon. Bob Debus MP, Attorney General of NSW the fact that the most expected someone to break socially despised position into one of those witty of all - Director, HIH closing numbers the organisers of the Revues Insurance - abruptly ceased to exist before I could traditionally used to bring down the curtain at the set my sights upon it. end of the night. Instead, when my esteemed colleague You know the kind of thing. Parodies of Sex retired, I eagerly grasped at the next best thing; a Pistols songs, incorporating zany quotes from the position which combines the roles of politician and judgments of Lord Denning. Or wacky lawyer, thus satisfying all my most self-destructive impersonations of the lectures of Roddy Meagher, urges - that of attorney general. set to the theme from ‘Jesus Christ Superstar’. Its really proven to be brilliantly successful. Like At any rate, those video archives are a potential a character out of Alice in Wonderland, I can have goldmine for someone. Some of you, as you rise to the privilege of defending six impossible eminence in later years, face the prospect of being propositions before breakfast. bled white by Philip Selth, who I fear is setting The day begins with a bracing pre-dawn debate himself up for a very comfortable old age indeed. with a furious talkback host, who is attacking the With or without video evidence, it is decision of the DPP to no-bill a case. I defend in incontrovertibly the case that my own career since lofty terms the integrity of the DPP and the vital role law school - as various parties here have been kind of his independence in our system of government. enough to remind me even during the course of the The talkback host then reads out to me, live on-air, evening - has been somewhat varied. Bearing great published pre-election undertakings by a colleague resemblance to a descent through the seven levels of promising that the subject of the now defunct Dante’s Inferno - rather than the stately progress prosecution would perish in jail. mapped out for us during first year legal institutions. There’s only one thing to do, and I do it. A lawyer, then a publisher, then a journalist, then Fearlessly, I call for a report. a politician. I agree that it looks like a pretty single- Next, the head of one of my departments calls to minded quest through the list of professions most tell me that a civil jury has just awarded two million

32 BENCH & BAR 2001

dollars to a member of the public who fell off a Sir Francis Bacon’s career, of course, ended in building owned by the Department after consuming disgrace when he was accused of taking payment for 43 drinks at a Christmas party. The Head of his services. He was the first - to my knowledge - to Department demands to know when I am going to raise the defence that although he had taken implement a four year old government undertaking payments, those payments had not influenced the to curtail the role of civil juries. exercise of his judgement in the particular cases Time to move up to option two. I sack the under his consideration at the time. Head of Department and call for a report. An argument still in vogue today, and employed - Refreshed, I open my Sydney I think I am right in saying - by Morning Herald to discover that Bret Walker S.C. only last year in apparently the entire Sydney Bar his representations before the has declared itself bankrupt, ‘the Sydney Bar Australian Broadcasting Tribunal moved offshore and is now in the ‘Cash for Comment’ inquiry. operating via CB radio from a has a degree of The quirks of the relationship freighter somewhere in Bass Strait. between the law, the media and There’s only one thing left to comfort with politics - the Devil’s Triangle - do, and I do it. I launch a full were to an extent laid bare to the investigation, sack another openly pugnacious public in the ABT proceedings last departmental head - pretty much year. As I have said earlier, I have at random - and call for a report. behaviour as over the years participated in each Of course, now and again an of those professions in turn. especially diligent public servant would intimidate Whether that makes me uniquely has the poor taste to complete one insightful or completely blinkered of these requested reports. nine-tenths of the in my approach is for others to Generally not, thank God, one judge. of the ones that I have requested. inmates of the In his speech at last years Usually one requested by one of dinner Bret Walker spoke, in my predecessors - which can, of main yard at passing, of the ‘honesty and course, be nearly as bad. aggression that is the mark of the Only recently - and this is Goulburn Gaol’. best of the Sydney Bar’. In so true - a report finally surfaced, speaking, he used his customary which had been requested eight elegant understatement. years ago by Peter Collins when I can state that in my not he was attorney general. It contained inconsiderable experience the Sydney Bar has a recommendations about an aspect of law reform, degree of comfort with openly pugnacious behaviour the precise nature of which escapes me at the as would intimidate nine-tenths of the inmates of the moment. To the naked eye the report seemed main yard at Goulburn Gaol. innocuous; but buried within it were Although I can say that, with the exception of a recommendations which targeted, with pinpoint few particularly celebrated feuds, once the meeting accuracy, the sensibilities of thousands of or court case has been concluded the aggression is ordinary suburban people in 12 key marginal less likely to be perpetuated socially. This cannot be seats. It was like those Beatles records which, if said of disputes which erupt in prison, where an played backwards, contain hidden messages argument over a carton of milk generally results in invoking the demonic ritual which in fact incited the manufacture of a shiv from the inmate’s the Manson family. toothbrush and its subsequent deadly deployment in At any rate, all these otherwise apolitical souls the shower block. started writing in abusive letters and confronting me The latter practice is also commonplace in most in the street - almost before I knew that the report, major metropolitan newsrooms, but for some reason which was clearly ghostwritten by Satan - even it is not widely reported. existed. Which just goes to prove that a report is In all three professions - law, journalism and never too old to be dangerous. politics - the participants are inclined to express Any day now, I expect that a report their opinions in robust terms. In all three commissioned by Sir Francis Bacon when he was professions questions of nuance and shades of attorney general to James I in 1613, will turn up in meaning are important in the highest degree. And my office with a polite briefing note from the this may in itself provoke suspicion and resentment Department, explaining that by some arcane from those who are ‘outside the club’. constitutional quirk it is the residual responsibility I do not wish to overstate the commonalities of the attorney general of NSW. between these professions. There are massive

33 BENCH & BAR 2001

divergences and, indeed, structural antagonisms the front page, the story in media terms will be old which separate them. But, historically speaking, a and dated and the journalists will be looking for a free press, an independent legal system and a new angle or controversial opinion to revive it. democratic system of parliamentary government are By 8.00 or 8.30 in the morning, members of the rare and precious phenomena; and to have all three public will have flooded ministerial offices with coexist at one time is rare indeed. faxes, telephone messages and, particularly, e-mails, It is commonplace to point out that in recent expressing their views, based on what they have times the courts and the judiciary have come under learnt of the case from early morning radio. increasing public The minister - let scrutiny from the us say, the attorney media. But I’m not general, to pull an sure if this is actually example out of the air true. A glance through - ambling along to a the newspaper archives previously scheduled of the last half-century 8:30 press conference of Sydney Morning or 9:00 o’clock Heralds would show conference opening you that high profile will be door-stopped criminal and civil and asked for matters have always comment. Any attracted intense media divergence between scrutiny and that what he says to the scrutiny has often been waiting media pack couched in sensational and the statement terms. The Hon. Bob Debus MP: given by his media Some things, ‘A lawyer, then a publisher, then a journalist, then a politician.’ officer at five past however, have midnight the night changed. The first is before will be instantly the nature of the media itself. reported as a backdown, crackdown, change in The predominance of the conventional print direction, split or anything else to give the story the media has receded, and the electronic media, sense of drama it needs to keep up momentum as a particularly radio, but also television and of course story to survive until the six o’clock TV news. the Internet, has greatly increased. Rapidity of The contrast could hardly be more marked with communication and the growth in the power of the days when Ben Chifley as prime minister could talkback in setting the news agenda means that the be asked a question as he got onto the train at speed of a news cycle has accelerated. Bathurst, think about it as it took the best part of Your morning newspaper reporting, for example, two days to journey to Canberra and jot down a a sensational court case, is available at around response in longhand for his arrival. midnight the night before on the relevant web site. It is also the case that there has been a This means that by five past midnight the fundamental alteration - a marked increase - in the producers of morning radio shows may be ringing willingness of newspaper commentators and radio the Attorney General’s Press Secretary seeking a talkback hosts to comment belligerently upon comment. By ten past midnight the Attorney individual decisions and indeed to provide running General’s Press Secretary has either been driven to commentary upon proceedings that are underway. drink or has woken up a bureaucrat or the luckless In many - indeed in most cases - the high velocity Attorney General himself asking for advice about of modern media reporting means that commentary what to say. will be based upon the accounts given to newsrooms Certainly, by five thirty or six the next morning, by court reporters; some of whom, in the nature of several telephone calls will have already been things, are extremely seasoned and experienced, exchanged, news grabs will have been recorded, the while others are mere neophytes and may have comments of the Opposition will have been sought. fundamentally misunderstood the nature of what And as Ruth McColl knows to her cost, keen has occurred. journalists will be ringing the Bar Association and It is important to bear in mind that for the 99 per other bodies in search of a fresh angle. cent of citizens, their only contact with the court In other words, before many of you have staggered system, other than what they learn from the radio out tomorrow morning to retrieve your copy of the and press reports, is through fictional representation. Sydney Morning Herald or Financial Review from To those not immersed in the daily reality of the court amongst your dew soaked roses, before you even read system, the novels of John Grisham or television

34 BENCH & BAR 2001

dramas like ‘The Practice’ or even ‘The Bill’ teach There is no point complaining when such a thing some important and indelible lessons. happens, and it is certainly not necessary to They teach that those charged by the police are interpret such events in the light of a media generally guilty. They teach that police are generally conspiracy, as we used to do when I was a student hard working, morally motivated and insightful, radical in the late 1960s. It is more to do with the whereas lawyers are clever, slippery and intent upon ebb and flow of news. If there is a lot of other news freeing the guilty through word play and the crafty around, or news with more meat, conflict and exploitation of technicalities. colour in it, then that is what will be reported. I’m not here making a moral On another slower news day judgement about fictional some innocuous and casual depictions of the criminal justice remarks can seize the front page system. I’m inviting you to ‘it is my role and provoke a storm of interest; or consider, as you have no doubt an otherwise unremarkable court considered yourselves on many to preserve and case or judgement can become the occasions, the basis upon which subject of feverish analysis and most people obtain their protect such dissection. information about how the court It is also important for system works. And the pains in the neck someone in my position to bear in consequences that has for how mind that the media audience - the people think about, and speak so that they consumers, if you like, of my about, courts and the judiciary. media product are to a There is an invisible line increase, multiply considerable extent segmented and between legitimate disagreement even ghettoised. with a judicial decision and and thrive into I may make a stately defence of personal attack. And it is a line the judicial system in a speech in which in the great majority of the future. the parliament, or an interview cases is respected by with the Financial Review; but 99 public, press and by politicians. For all our per cent of the population will I am not here tonight to argue neither know, nor care, what I that increased public scrutiny and sakes’. have said. comment upon judicial decisions is Conversely - and this is a bad thing. The justice system is certainly an experience that I have an institution which goes to the often had - a law and order issue very heart of our democracy, and as such must be may be bitterly fought out in the tabloid papers and strong enough to survive adverse criticism, including on commercial radio with most of the legal badly ill-informed criticism. community never becoming aware that the debate is However, the line between legitimate criticism going on at all. and oppressive attack, which may have a tendency I vividly recall an occasion on which in the to undermine the authority of the legal system, is far course of a single day I participated in six or seven from clear. It is my own view that it is the role of the interviews on commercial radio defending the attorney general to speak up in defence of the integrity and independence of a particular quasi- judiciary when criticism crosses a legitimate line. judicial body for which I was then responsible. I emphatically do not believe that it is for the These interviews were conducted at a level of heat attorney general to rush into print every time that a and intensity which amounted to hand to hand criticism is made. Media interventions are always a combat. judgement call. In some cases a media intervention The following day, somewhat exhausted and by the attorney general will give a story prominence shell-shocked, I was wandering around the main and longevity it would never otherwise have, and street of Leura. I was approached by a lady of result in the perpetuation of a controversy that advanced years but profound civil libertarian views. would otherwise have died a rapid death. She reproached me for my silence and my failure to Whether a response is made - or indeed, having defend this quasi-judicial body. been made, is put to air or printed - depends It transpired, of course, that her daily media diet nevertheless more on the vicissitudes of the daily media consisted solely of Radio National, the ABC TV cycle than is often recognised. I recently made what I news at night, and the Blue Mountains Gazette. On modestly regarded as a few rather well chosen remarks days when she was feeling daring, or wanted a bit of defending the integrity of one of our State courts which rough trade in media terms, I imagine that she had become mired in some unfair criticism, only to briefly twisted the dial to Radio 2BL. have them sink virtually without trace. It is worth bearing in mind that, even amidst the

35 BENCH & BAR 2001

cacophony of media messages and the saturation of The attorney general is in a position to be the information, media consumers are still highly voice within government and to the public which selective and will take very different lessons from articulates and insists on observance of the enduring the stream of interviews, press releases and speeches principles of legal justice and on respect for the churned out by the political process and from the judicial and other legal institutions through which millions of words of analysis and commentary upon they are applied. the legal and political process. It is not my contention that the courts are It is clear that as incapable of defending media commentators themselves from attack become more willing or, for that matter, as I to criticise the conduct said earlier, that it is of individual judges, the duty of an attorney the tensions inherent to weigh into public in the dual role of debate every time any attorney general as adverse comment first law officer and as concerning a judicial a politician - can decision comes to become more acute. light. And the question It is not an as to whether the understatement to say attorney general that our very system of should intervene in government and the public defence of the fundamental freedoms judiciary will ‘I can have the privilege of defending six impossible enjoyed by all citizens inevitably arise. propositions before breakfast.’ are at stake if the role While there will be of the judiciary is not disagreement on any properly protected. particular instance as to whether the attorney- The international stage provides plentiful instances general should comment and what form that of the erosion of the power and independence of the comment should take, I have made no secret of the courts by unrelenting political attacks. fact that I take the view that it is in fact part of the Justice Kirby himself has noted that, role of the attorney general to speak out in defence when you take the independence of the judges away, all of the judiciary - and indeed of associated that is left is the power of guns or of money or of institutions such as the Director of Public populist leaders or of other self interested groups. Prosecutions. Charles Hughes, who was president of the Recent comments by my friend Justice Michael American Bar Association during the 1920s said, ‘an Kirby - comments in defence of the public school honest, high minded, able and fearless judge is the system of which he is a most illustrious product - most valuable servant of democracy.’ have provoked some recent debate, even prime Speaking as a politician, I can say that at the ministerial rebuke. I am not the first to point out height of a law and order scare, or in the white heat that more politically conservative comments by of an election campaign, an honest, high minded, other judges have provoked no such rebuke. able and fearless judge is an unmitigated annoyance Tonight is not the occasion for partisanship. But and a pain in the neck. I place on record my own view that if political Speaking as the Attorney General, I can say that leaders and attorneys general wish judges to remain it is my role to preserve and protect such pains in silent on legal and social issues, then it places all the the neck so that they increase, multiply and thrive higher obligation on attorneys general to speak out into the future. For all our sakes. on their behalf. It is customary, I think, to see the person who is for the time being the attorney general as the guardian of the administration of justice. The attorney general is able to play a significant role in maintaining public confidence in the integrity of the justice system and in protecting the rule of law. In defending the judiciary, the attorney general is not defending the decisions or the reasoning of the judiciary but the institution, its integrity and hence, the rule of law.

36