Happy Birthday Supreme Court Celebrating 175 Years

ISSUE 159 WINTER 2016 VICTORIAN Spotlight on family law International problems and perspectives BAR Offshore processing NEWS Testing the boundaries

Happy birthday Supreme Court Celebrating 175 years

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For access to these great savings, please call Member Beneﬁts Australia on 1300 119 493 or email info@mbabeneﬁts.com.au ISSUE 159 WINTER 2016 VICTORIAN BAR NEWS

Editorial 56 A Moroccan odyssey New look 3 ALEXANDRA RICHARDS THE EDITORS 61 Is the High Court helping Letters to the editors 4 to ﬁght corruption? President’s report 6 STEPHEN CHARLES PAUL ANASTASSIOU 66 Seeing double: Judicial Registrars Snapshot of a year 8 Burchell and Tran SARAH FREGON GEORGINA COSTELLO & JUSTIN WHEELAHAN Around town 21 68 Are the legal risks faced by company 2016 Victorian Bar Dinner 12 directors in Australia intolerable? A day in the life 13 ED BATROUNEY of the Chief Justice 71 Lament for ‘Cape’ Kennedy THE HON MARILYN WARREN AC CAMPBELL THOMSON Voice of a new generation 21 72 Wigs on Wheels MARK COSTELLO MICHAEL SIMON Afternoon tea at 26 74 French Sabbatical Government House MICHAEL RUSH EMMA PEPPLER Castan Chambers 28 Bar Lore HAROON HASSAN 35 76 Justice Scalia Junior Bar conference 32 TONY PAGONE BRAD BARR & NATALIE HICKEY 78 A step back in time Celebrating the 175th 35 anniversary of the Supreme Court Back of the Lift JUSTIN WHEELAHAN 66 82 Adjourned Sine Die LIV and Bar & Bench Golf Day 37 VBN 84 Silence all stand News and Views 87 Vale 88 Gonged Farewell to the wig 38 GEORGINA SCHOFF 89 Victorian Bar Readers Ode to the Wig 41 PETER HEEREY Boilerplate 90 JULIAN BURNSIDE Offshore processing 43 A bit about words ADAM MCBETH 92 Music Column ED HEEREY International family 48 94 Conduct & Etiquette SAM HORGAN law in the spotlight 61 95 Book Review NICHOLAS FRENKEL DR ANNA PARKER 96 Off the Wall SIOBHÁN RYAN War and peace: Balancing the 52 forensic needs of unhappy families 98 Food and Drink SCHWEINHAXE CELIA CONLAN 99 Red Bag Blue Bag YOU DESERVE TO BE REWARDED VICTORIAN BAR MEMBERS HAVE ACCESS TO GREAT BENEFITS AND SAVINGS.

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DATE. 14.07.2016 JOB SIZE. 275mm(h) x 210mm(w) JOB NO. REV. CLIENT. JOB NAME. 040528r02_MEMB_MBA Vic Bar Ad_210mmW x 275mmH 93 MONTAGUE ST. STH MELBOURNE VIC 3205 AUSTRALIA PH. (03) 9686 7766 | W. WWW.OD.COM.AU | E. [email protected] © OPTIMO 2016 ISSUE 159 WINTER 2016 VICTORIAN BAR Editorial NEWS

Editors: Georgina Schoff QC and Georgina Costello. Victorian Bar News Editorial Committee: Georgina Schoff QC, Georgina Costello (Editors), Anthony Strahan, Maree Norton, Annette Charak (Deputy Editors), Justin Wheelahan, Catherine Pierce, Brad Barr, Jesse Rudd, Natalie Hickey, Justin Hooper, Denise Bennett and Sally Bodman. Contributors: (In alphabetical order) Greg Ahern, Paul Anastassiou QC, Richard Attiwill QC, Brad Barr, Ed Batrouney, Andrew N. Bristow, Julian Burnside AO QC, the Hon Stephen Charles QC, Celia Conlan, Georgina Costello, Mark Costello, Patrick Dalton New look QC, Helen Dellidis, the Hon Linda Dessau AM, Sarah Fregon, Nicholas Frenkel, Graham Harris, Haroon Hassan, Ed Heerey QC, the Hon Peter GEORGINA SCHOFF & GEORGINA COSTELLO, EDITORS Heerey AM QC, Natalie Hickey, Sam Horgan QC, Stewart Manderson, the Hon Chief Justice Marilyn Warren AC, Adam McBeth, Denis Meehan, ou may have noticed that the Victorian Bar is starting Ron Meldrum QC, Trevor Monti QC, the Hon to look different and perhaps, to feel different too. Justice Pagone, Dr Anna Parker, Emma Peppler, th Alexandra Richards QC, Michael Rush, Siobhan For a start, in this 175 anniversary of the Supreme Ryan, Georgina Schoff QC, Michael Simon, Court of Victoria, the Bar is ﬁnally farewelling the wig – Melanie Szydzik, Campbell Thomson, Simon not entirely, but its complete abandonment now seems Townsend, Justin Wheelahan. almost inevitable. As a Bar we are very attached to Editorial adviser: Peter Barrett our traditions. The wig, as you will see from the article we publish on page Photo contributors: Neil Prieto, Peter Bongiorno, 38, is a relic of the 1600s and has been worn proudly in Victoria as part Tim Bell, Simon Tisher and Matthew Townsend of our formal court robes since the late 1800s. We suspect that if the decision Cover Illustration: Guy Shield to do away with wigs had not been made for us by the Supreme Court, the Publisher: The Victorian Bar Inc., Level 5, Owen YVictorian Bar would never have been able to make up its collective mind, Dixon Chambers, 205 William Street, Melbourne one way, or the other. So in this issue we celebrate the wig. You probably VIC 3000. Registration No. A 0034304 S. have a photograph like the one on the next page, of a young Amy Ross The publication of Victorian Bar News may be cited wearing her mother’s wig and pretending to be a barrister. There is room for as (2016) 159 Vic B.N. Opinions expressed are not necessarily those of the Bar Council or the Bar or of nostalgia and obituary in Victorian Bar News. Please send us your photos of any person other than the author. wigs so we can publish them in the summer issue ‘in memorium’. Advertising: What else is different? Haroon Hassan’s article on page 28 All enquiries including request for advertising rates describes the new Castan Chambers, where “end of journey facilities”, to be sent to: “collaborative working spaces” and “hot desks” provide a modern Sally Bodman workplace to accommodate our modern working practices. You might The Victorian Bar Inc. squirm if you’re sitting in a Chesterﬁeld while you read this. How we Level 5, Owen Dixon Chambers work is changing too. Our interview in this issue with My Anh Tran 205 William Street, Melbourne VIC 3000 and Sharon Burchell of the County Court’s Commercial Division Tel: (03) 9225 7909 explores job sharing by judicial registrars and demonstrates that it Email: [email protected] can work well. Design and production: The Slattery Media Group; Even the Bar Dinner this year felt different. “Who is Mark Costello?”, www.slatterymedia.com many asked – well, he is a fairly junior member of our Bar whose very Contributions: Victorian Bar News welcomes entertaining speech at the Bar Dinner we publish on page 21. Mark is contributions to [email protected] just one of our bright new ornaments, many of whom were at the Bar photo by neil prieto Dinner and whose faces you will see in the photographs of the evening which we publish on pages 12 to 25. They are represented by their articles and essays that we are also proud to publish: Ed Batrouney’s

LEFT TO RIGHT: Jesse Rudd, Georgina Costello (editor), Georgina essay on page 68 that won him a ticket to the Commercial Bar Schoff QC (editor), Brad Barr, Annette Charak (deputy editor), Conference in London this year; Dr Anna Parker’s update on Justin Hooper, Maree Norton. ABSENT: Anthony Strahan (deputy editor), Justin Wheelahan, Catherine Pierce, Natalie Hickey, international family law (on page 48); and Adam McBeth’s article Denise Bennett and Sally Bodman. on offshore detention (on page 43).

VBN 3 You probably have a photograph like this one, of a young Amy Ross wearing editorial

editorial her mother’s wig and pretending to be a barrister. There is room for nostalgia and obituary in Victorian Bar News. Please send us your photos of wigs so we can publish them in the summer issue in memorium.

What has not changed and, we hope, never will, is the collegiality and camaraderie with which we as a Bar approach our work as independent legal practitioners. Part of the family Victorian Bar News spreads its pages across diverse practice areas. We hope to publish content that interests the generalists and the specialists among our members. In this issue, we have focussed on family law. Following on from Dr Parker’s piece on page 48, you’ll ﬁnd another family law article at page 52, by Celia Conlon. On page 85, Helen Dellidis welcomes the appointment of family law barrister Jillian Williams as a Judge of the Federal Circuit Court. We encourage our readers to submit articles about other specialised areas of practice that seldom feature amongst these pages. We wish you happy reading.

TO Letters THE Editors

Not the end of the matter... Dear Georgina Schoff & Georgina Costello, Reading Jeff Sher’s excellent letter in your last issue regarding the fortuitous circumstances in which Percy White’s painting of Sir Isaac Isaacs came to be hanging in the High Court in Canberra brought back some fond memories. Your readers may be interested to learn that the coincidences outlined by Jeff were not the end of the matter. The painting had originally been donated by Sir Isaac in 1932 to the Judaean League, the umbrella body of Jewish Sports Clubs, at a dinner where the keynote speakers included Maurice Ashkanasy, a future leading light at the Victorian Bar, and R.G. Menzies, then the Attorney-General. In the late ‘70s, the painting’s signiﬁcance was not always appreciated. On one occasion it had to be rescued

4 VBN VBN 5 editorial When he saw the painting on his next trip to Melbourne, he immediately said he wanted it for the new High Court.

from the back of a truck collecting ‘junk’ from the rear of the Ajax squash courts in Alma Rd, where it was destined for the tip. The time in the truck resulted in a small hole in Sir Isaac’s face which needed minor repairs, overseen by Melbourne art dealer Joe Brown. The painting was then placed in the boardroom of the Judaean League during my presidency, alongside a painting of Sir John Monash. It remained there until the dinner recounted by Jeff at which the connection was made, and Jeff contacted Sir Garfield Barwick’s associate. The very next day after the dinner, I was in Sydney where Sir Garfield contacted me and asked to see the painting. When he saw the painting on his next trip to Melbourne, he immediately said he wanted it for the new High Court. The Judaean League arranged an afternoon tea when Sir Garfield came to Alma Rd to present the club with a photographic copy of the painting by Athol Shmith. On that occasion Sir Garfield told a delightful story about Correction Sir Isaac’s funeral. He was buried Dear Editors, on a very hot day in February 1948 “... errors slip through and the editor is seldom satisfied with the and all the justices stood around published result”. May I correct two errors in The Commonwealth the open grave in their full regalia. Law Reports, A Personal Reflection? One of the first publishers There was no compulsory retirement was Charles (not George) Maxwell. George Maxwell was a well- age in those days. Justice Starke known, blind, criminal barrister. In their early years the reports were placed his arm around a very frail old published by Maxwell and the Law Book Company separately yet judge standing next to him and said, printed in conjunction. Volumes bore the imprint of the publisher with “Hardly worth going home is it?” whom a subscription was placed. The Law Book Company acquired I wish you and your readership well. the Maxwell business in 1921. Trevor Cohen. James Merralls

Have your Say Write to the Editors at Victorian Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 or email [email protected]

4 VBN VBN 5 President’s Report editorial PAUL ANASTASSIOU

he legal industry and, within it, the of the portal is building and I look forward to this Bar, faces continuing challenges in a increasing as the marketing plan continues to be rapidly changing and globalised legal executed over coming months. services market. We see an increasing The success of our external CPD events program for the focus in civil proceedings on the use of whole of the profession demonstrates the Bar’s strength alternative dispute resolution and the and standing in delivering continuing professional general trend is declining civil court filings, civil superior development and legal education of the highest standard. court work and criminal lodgements. Across practice This is an area where the Bar has always excelled areas, there is the observed growing trend of solicitors and continues to do so through the contribution of (particularly in large firms) taking over, or doing more our individual members and the judiciary to our CPD Tof, the work that was historically the remit of counsel. In sessions, workshops, conferences and readers’ course. criminal law, there is the further significant challenge The Junior Bar conference is the newest addition to posed by chronically low levels of legal aid funding, and our CPD program, with the inaugural conference being the development of an in-house model which has resulted held in February this year. The event was the ‘brain child’ in reduced briefing of members of the Bar in criminal of Education and Policy Manager, Rachel Chrapot who, matters. with her team and the Student Engagement Committee, The Victorian Bar continues to be a strong advocate brought the day to life. It was a resounding success and for increased legal aid funding and has been strongly I thank the many members of the judiciary and senior engaged in supporting the campaign for increased legal members of our Bar who gave their time to teach the aid funding, ‘Legal Aid Matters’. sessions and master classes on the day. In many areas of law, solicitors are increasingly Much work was done in the planning and organisation delaying the briefing of counsel in matters in order of the International Commercial Law Conference held to carry out more of the pre-trial steps themselves. In in London on 29 and 30 June, hosted by our Commercial corporations, legal spending is often a prime target for Bar Association together with the Victorian Bar and the corporate overhead reduction. In government, budgets English Commercial Bar. are under pressure, leading to a reduction in the growth Following the success of our annual CPD conference of legal expenditure. All of these things have the potential last year, the Victorian Bar will this year partner with the to, and do, impact the work available to the Bar and have Australian Bar Association in holding a two-day National the potential to impact the administration of justice in Conference for all of the profession at the Melbourne Victoria more broadly. Cricket Ground. Chief Justice French is to deliver the It is vitally important that we continue to communicate keynote speech. Another highlight of the conference will with the profession, government and the market more be a chief justices’ panel, with every state chief justice broadly to stress the benefits of engaging a barrister - attending, as well as the Chief Justice of the Federal ‘deep’ subject matter expertise, excellence in advocacy, Court of Australia and the Chief Justice of the Family strategic insight and fearless independent advice - all of Court of Australia. The Commonwealth and the Victorian which add up to cost effectiveness. Attorneys-General will be speaking, together with It is for these reasons that the Bar Council has leading members from the Bars and the profession across continued its focus on business development and Australia. This conference is an event not to be missed. engagement with the market directly through initiatives One of the biggest projects this year will be to redevelop such as BarristerCONNECT>>, the direct access portal, as the Victorian Bar website. Much effort has gone into well as direct briefing initiatives and the continuation of developing a comprehensive scope of works. Consultation our highly successful external CPD and events programs. workshops have been conducted with Bar associations, These events strengthen our relationship with practice the clerks and Bar committees, as well as continuing area associations, including AILA and CIArb. consultation with the Bar Council. We will also look to BarristerCONNECT>> has been well received by expand our external engagement program through a new the Courts, Victorian Legal Aid and government as a legal education and continuing professional development positive access to justice initiative, providing rapid program for the whole of the profession. I look forward access to barristers in criminal matters in the city, to being able to make further announcements about this suburban and regional Magistrates’ Courts. Awareness program in coming months.

6 VBN VBN 7 editorial Another business development The culture of participation and volunteer initiative, completed this year, contribution at our Bar is as strong, if not has been the expansion and stronger, than it has ever been. refurbishment of the Victorian Bar Mediation Centre located at Douglas submission. The Government is due functioning of our college through Menzies Chambers on levels three to issue its final report from the standing committees and Bar and (now) one. In partnership with review in August. associations. Without this reservoir of BCL an additional purpose built level The Bar’s submission to the voluntary support the Bar would not for the centre was constructed on review detailed the work of both be able to make the positive impact level one and both levels one and the Pro Bono Committee, the Duty that it does to the administration of three refurbished. The centre is now Barristers Scheme Committee and justice, nor meet the myriad demands equipped with video conferencing the significant contribution that the from the courts and government facilities and additional meeting Victorian Bar makes more generally agencies for participation in the rooms available for hourly as well as to the delivery of access to justice functioning of the justice system. daily bookings. I encourage members through the pro bono services The culture of participation and who have not yet seen the new provided by our members. Adding volunteer contribution at our Bar is facilities to take a moment to do so to that significant body of work, the as strong, if not stronger, than it has via the website www.vicbarmediation. Pro Bono Committee has recently ever been. We are all entitled to be com.au or contact Kirstin Green, launched a new pilot scheme, the justifiably proud of our great college the Bar’s Manager of Operations, for “Open Courts Act Duty Barristers’ as we continue to contribute well in more information. Scheme”, which provides assistance excess of our means to so many vital Our constructive relationship with to the Supreme Court of Victoria activities that enhance our BCL continues as we commence by counsel appearing pro bono, as civil society. planning a major works project to amicus curiae in applications refurbish level one of Owen Dixon brought under the Open Courts Chambers East. This refurbishment Act 2013 (Vic). The pilot, will provide a much-needed upgrade which commenced in May, of facilities with modern and will run for 12 months. I functional spaces for our expanding congratulate and thank the CPD, education and events programs. Committee, its Chair Pat Strong governance structures and Zappia QC and, in particular, practices are essential to ensure Richard Wilson, for their that the Bar Council, the Executive work with the Supreme Court and the Bar Office are in the best in developing and launching possible position to fulfil their roles this initiative. and achieve the Bar’s core objectives. The excellent volunteer The Bar Council has commenced a culture of our Bar cannot be review of its governance processes and overstated, both in relation to the procedures with a view to identifying Bar’s external contribution to the areas for improvement to ensure that administration of justice through the Bar’s resources and administration, the pro bono work of so many as well as the significant voluntary barristers, as well as our contributions by individual members, members’ tireless are put to the best possible use. contribution The Bar welcomed the Victorian to the Government’s Access to Justice Review this year, to which the Bar made its submission in February this year. I extend my thanks to the Chair of the Access to Justice Working Group convened by Bar Council, Chris Winneke QC, and all those on the working group for their efforts in liaising with the Department of Justice and producing the Bar’s

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Snapshot of a year

CEO’s Report. SARAH FREGON

eflecting on my first year in the role of CEO of the Victorian Bar causes me to think about the two questions I have been most asked over the last year: R Are you succeeding? and What do they do up there? I’ll come back to the first question after addressing the second. Almost certainly the most common question asked of me over the last year is “What do they do up there?” when asking about the work of the Victorian Bar team. I have endeavoured to explain this to various members in various ways. My advocacy may not have always been as persuasive as it ought to have been and it’s obviously not efficient to take my message to one member at a time. So, with the opportunity of a dedicated article in the Victorian Bar News, I will start to explain. And, what better way to demonstrate the work of the team in an ‘Australian Football League town’ than by using statistics. Many of these ‘stats’ to the right and on the following pages represent the “day-to-day” of what the team do, such as, the 21 bar council meetings prepared for and reported to, the 120-plus committee meetings coordinated, over 300 duty barristers briefed, over 800 mediation bookings coordinated, 100-plus CPD sessions held, two readers’ courses, with over 190 course sessions run and 83 readers assessed, 13 barristers skills workshops conducted, 2059 practicing certificates and Bar subscriptions issued, over 300 certificates of good standing, 40-plus marketing and communications publications, 90-plus events managed, over 1600 email campaigns and 400,000-

8 VBN VBN 9 editorial plus email invitations to events VICBAR Values barristers at our Bar. and other activities. This last year has also been one of Within the team, we have significant development within the developed and committed to VICBAR Major Projects operations of the Victorian Bar team values by which we will work In addition to the “day-to-day”, over in respect of how we work. This, with each other and how we will the past year we have completed in turn, informs our approach to operate in serving the members to several major projects and run major providing services to the members, support a strong and independent events including: our business development activities, Victorian Bar. Our VICBAR values » The Victorian Bar Mediation Centre and in our engagement with our key are: Versatility, Integrity, Collegiate, refurbishment and expansion; stakeholders, in demonstrating the Balance, Accountability and Respect. » The Annual VicBar LIV ‘All of value of the services provided by These values have been established Profession’ Conference and our CPD events program; Corporate Services » Development of our Communications Strategy; 1st Annual PEC Monthly Electronic » The Inaugural Junior Bar Meetings Report Financial Election Conference; Support » The ICC – applications process, the Reports ICC jury workshops and advocacy assessments and delivery of the TPD PEC Online Knowledge Test; & Life IT Help Meetings » The first electronic vote for Bar Scheme 5% Desk Set up Support Council elections; Budget » The direct briefing initiative with savings IAG; achieved Bar » BarristerCONNECT>> developed Bar News and launched, and perhaps my 10+ Dinner favourite achievement; 120+ Bar » delivering the Total Permanent Bar Committees Annual Disability (TPD) and Life Group Committee Supported General Scheme. meetings 51 Meeting The Victorian Bar team has been co-ordinated Speeches instrumental in executing these Ceremonies

projects, however many would not HR & Obits have come to fruition were it not for Framework MCAMC the voluntary work and enormous Project Operations contribution made by many 18 & Board members of our Bar. Collectively and Bar Standing Support individually, members contribute Committees 300+ lift notices signiﬁcantly to our achievements Convened Budget on a daily basis through their work & Audit 800+ and participation, whether on Bar Mediation Council, Bar Standing Committees, Bookings or though our Bar Associations. Benevolent The support of the clerks has Fund Insurance 300+ also contributed to our successes. Management review Duty BarristerCONNECT>> could not have Barristers proceeded without the support and Briefed 21 cooperation of the clerks. Bar Council The success of the TPD and Life 100+ Agendas Victorian Stakeholder Group Scheme was a ﬁne example Minutes & Bar Committee Mediation of the power of the collegiality of Reports the Bar at work and what can be Foundation & Board Centre achieved through the power of the Support Meetings Expansion collective.

8 VBN VBN 9 Education & Policy As a membership organisation, Junior the majority of our revenue comes Bar from member subscriptions. I editorial ICC Lawyers 83 Conference am committed to ensuring that Mediation Admin Readers those funds are used efﬁciently Course Assessed and effectively. To do this we must continue to pursue all reasonable IJC savings initiatives and prioritise LPUL RAP 260 expenditure in accordance with Working 2 Support ICC Readers’ Applications commercial principles and in Group & Courses alignment with our strategic Submissions objectives. 190+ We must also pursue appropriate

Readers 3 business development initiatives 30+ Sessions & Pacific to reduce our reliance on member 200 Policy Moots Rim Course subscriptions revenue so far as we Readers’ Submissions Coordinated Coordination are able. Our business development Exams initiatives have been primarily directed towards showcasing the inherent value proposition of Quantum 10 ABA LCA education engaging with the Bar and the expert Leap ATC Meetings committee services Barristers provide. Reporting Course & Working meetings Groups The year ahead Over the past year, my focus has been to raise the profile of the Bar, 3 Jury ICC Knowledge demonstrate the value proposition 100+ Workshops 13 Test of engagement and to position the CPDs 55 participants Skills Victorian Bar as the first choice for Co- Workshops 117 volunteers the provision of specialist advocacy, ordinated ABA analysis and advice. Raising ATC awareness of the advantages of LSB Course direct briefing and direct access, Access funding our new and continuing legal to Justice application education initiatives and our events Review program are all directed towards the achievement of this core objective. Our most well established as part of a broader review and Our work in improving both business development, marketing enhancement of our internal human human resources and financial and communications tool is the resources systems and policies management processes is both timely Victorian Bar’s website. It has been through which our human resources and aligned with the work of the over five years since the last refresh framework will be set. recently established Governance of the website and redevelopment Financial efficiency, discipline Review Working Group. The work is needed. A significant amount of and transparency have also been of the Governance Review is critical work has been done over the past six a focus over the past year and to ensuring that the Victorian Bar months to prepare a detailed scope of will continue to be so in the year is best placed to operate effectively, works and compile a comprehensive ahead. Much work has been done to efficiently and is positioned to meet design and development brief improve processes and reporting in the challenges we face in a rapidly to redevelop the Bar’s website. this area. I thank BCL, in particular changing, increasingly global and Digital Marketing Coordinator, Peter Walker and Caleb Jansen, for highly competitive legal services Stephen Holland, and the website their assistance over the past eight market. I look forward to continuing redevelopment team are to be months in improving our financial to work with the Bar Council, the commended for their excellent work services and for their ongoing Governance Review Working Group and dedication to this project. The commitment to achieving continual and with my team on this important design and discovery stage has now improvement in this area. project. commenced, including extensive

10 VBN VBN 11 Marketing & Communications editorial

407,039 1600+ Major ICLC Conference 70+ Emails/ email 3 Events lift ﬂyers London Opening invitations campaigns Sponsorship events Conference Legal sent Planning Year 90 3 48 Events Co- CommBar Stakeholder 25+ ‘InBrief’ ordinated & Barrister ICLC website & Events Media Managed* CONNECT advertising Sponsored launched releases

Multi- 40+ Website faith Publications Redev’t IAG Direct Opening Posters/ Scope & 10 Comms Brochures/ Websites Brieﬁng Strategy Design Brief managed Pilot Advertisements

stakeholder engagement within with the ABA for this first joint online project in the final stages of and outside the Bar. national conference and to have the development. Watch this space! Many months have been spent experienced assistance of ABA Vice So, back to the first question: Are planning and organising the President Will Alstergren QC in you succeeding? That is for others to upcoming CommBar | VicBar | organising this event. assess in the fullness of time. It does Combar International Commercial And, finally, there will be more to seem appropriate, however, to note Law Conference in London. The come over the coming months in the that success, when achieved, does Victorian Bar Marketing and area of legal education with a new indeed have many fathers. Communications team, led by Sally Bodman, have been working with the LSB Conference Organising Committee, Compliance & Member Services 3 Annual and in particular the committee’s Annual Funding Chair, Paul Hayes, to organise Returns Submission what was a fantastic event and 2017 Bar 53 VicBar Association Mediators 1003 Charities resounding success. PSS subs Subs Issued Accred- Plans are now well advanced itations for the first joint ABA | Victorian 10 Bar National ‘All of Profession’ 2059 LSBC 19 Ethics CEO Complaints Conference to be held on 27 and 1321 PCs meetings in/out 28 October 2016 at the Melbourne Essoign 300+ issued & Cricket Ground. This also promises Subs Certificates renewals to be a stellar event. A truly Issued of Good 2854 exceptional lineup of speakers Standing 881 Bar from the judiciary, each state Bar TPD Subscriptions Benevolent and the broader profession from & Life Fund 300+ PSS Issued across the country will descend Premiums Applications Certificates annual upon Melbourne. A remarkable of Good report panel with every chief justice Standing 3 12 (state and federal) will follow, with TPD 18 Memos 118 opening remarks from the Federal & Life Council to Bar Membership Attorney-General and the keynote Claims Committee Council Movements address from Chief Justice French. Matters in/out We are delighted to be partnering

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2016 victorian bar dinner victorian 2016 1

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1. Stephen Russell, Sam Stafford, Eleanor Coates, David Oldﬁeld, Rob O’Neill 2. Peter Gray QC, The Hon Justice Gordon, The Hon Kenneth Hayne AC QC 3. His Hon Judge Howard, Premala Thiaragaran 4. Lisa Mendicino, Peta Smith 5. Wendy Harris QC, Joseph Carney 6. Christine Willshire, Abhi Mukherjee 7. Her Hon Judge Bourke, The Hon Elizabeth Curtain 8. Jonathon Kirkwood, Fiona Knowles 9. The Hon Justice Dixon, Kylie Weston-Scheuber. 10. Dimitri Ternovski, Abhi Mukherjee , Nawaar Hassan, Nicole Mollard 11. Daniel Briggs, Damien McAloon 12. Reiko Okazaki, Megan Fitzgerald, Lionel Wirth 13. Jennifer Findlay, Eliza Tiernan 14. Julia Lucas, Fiona Cameron 15. Stephen Donaghue QC, Frances Gordon, The Hon Justice Moshinsky 16. Claire Harris, Georgie Coleman, The Hon Justice Michelle Gordon 17. Rowena Orr QC, Rose Singleton, Daniel McCredden, Liam Brown 18. Mark Costello 19. His Hon Judge Howard, 9 Kristen Walker QC, The Hon Justice Dixon 20. Rohan Hoult, Emma Jeans, Fiona Crook

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12 VBN 19 VBN 13 2016 victorian bar dinner 2016 VictorianMYER MURAL BarDinnerHALL, MAY 27 2016 A day in the life of the Chief Justice

SPEECH OF THE HONOURABLE CHIEF JUSTICE MARILYN WARREN AC

ood evening. » and there are non-legal musicians and singers I am thrilled to speak to the Victorian who perform pro bono, in the Bar’s tradition. Bar, my Bar, of which I have been a proud There is a time at Bar dinners called ‘the judges’ member for 31 years. Cinderella hour’; that is, when we make a quick exit In fact, quite relevant to this fact and to before generous, even garrulous, barristers decide the new members of the Bar who signed to give us a 360 degree performance review. the Bar Roll on 5 May, I am the first Chief Justice who Last year the Lex Pistols had started playing. 14 Gis an alumnus of the Victorian Bar Readers’ Course. So No one was on the dance floor. The hour came for to the new barristers I say, the sky is the limit, and to judges to depart when Chief Justice French leapt up. 17 the rest of the Bar, watch out for them. He took a detour to the dance floor. I followed and we Last year the Bar dinner was entertained by the Lex danced with our partners. Pistols. The band has performed on the same stage You need to know that the Chief Justice is a rocker as Ross Wilson of Daddy Cool and Mondo Rock, Ella from way back — in his youth he also had his own Hooper of Killing Heidi, Vika and Linda Bull of the rock band. Suddenly, when a particularly rocky Bull Sisters, the Rockwiz Orchestra and other stars and number started, the Chief Justice slid across the rock legends. dance floor and cut in. An event then occurred, totally Let me introduce the band: unprecedented in the legal and constitutional history » on drums – the Principal Judge of the Criminal of the country. The Chief Justices of the High Division of the Supreme Court, Justice Lex Lasry; Court of Australia and the Supreme Court » on saxophone – Judge Alistair McNab of the of Victoria danced… together. Federal Circuit Court; The Chief Justice is a cool one, as we

20 » on guitar – John Champion SC, Director of Public know, with special moves. Now, I have been Prosecutions for Victoria; rocked by the High Court on occasion, even » on base – Michael Cahill, Deputy Chair rolled, but never this. As the Chief Justice of the Criminal Bar Association; sent me into a double twirl and I spun » also on guitar – Michael Galvin QC towards the dinner tables only to be with Paul Connor and Justin Wheelahan double jived back, I thought, ‘What of the Bar; will happen? Goodness there will be

VBN 13 An event then occurred, totally unprecedented in anything about intellectual property). the legal and constitutional history of the country. The Kind and compassionate John Coldrey said, ‘Oh, I could lend you my Chief Justices of the High Court of Australia and the sex in the Supreme Court story?’ Supreme Court of Victoria danced… together. I said ‘No, I’ve heard that one before and I do not think it is funny.’ a photo on the cover of the Bar News very dramatic hand and arm More silence. 2016 victorian bar dinner victorian 2016 with the banner “Chief Justices Rock’’. movements as she sang, picking up Justice T Forrest then said: ‘Look, The tabloids… or, worse still, social the song lines as she went along. I suppose I could give you the joke media, will pick this up.’ No one knew. I thought I had Justice about the very unhappy accused that I need not have been concerned. Gordon pinned - the Springfield I told at the Criminal Bar’s farewell In fact, no barristers took any notice technique. But this dais is made of for Judge John Nixon?’ whatsoever. That is because the Bar Perspex. Nowhere to hide, nowhere Immediately Justice J Forrest said: dinner is a night for the judiciary to run. From where I could see – no ‘Don’t be ridiculous. The Bar would and the Bar to celebrate what we do, writing on the High Court flesh. be shocked by all the profanity.’ not who we are, to acknowledge that I then twigged. Justice Nettle’s A pause. we are all in this together, this thing favourite motor vehicle is an Aston Justice J Forrest then said: ‘CJ… called the administration of justice. Martin. James Bond drives one. [he calls me that when he is serious Come to think of it, where were Bond has an inventor come gimmick or he wants something]. CJ, leave the all you aspiring barristers? A golden innovator working for him called Q. jokes to us, the masters of comedy. opportunity was wasted. How often I noted that when speaking, You do the things you are stronger do you get the chance to dance with Justices Nettle and Gordon’s line at — corporations law, statutory a Chief Justice? of vision was straight ahead. They interpretation, judicial health and The Lex Pistols will perform again both wear glasses. Yes, that is the well-being,’ (I think, ‘that will go over tonight. So later, as David Bowie said, solution! Their glasses are made by really well’.) He says, ‘Seriously, we ‘Let’s Dance’. some Q-like inventor. Their speeches are looking after you.’ I reflected on what speaking run across their vision in a way that I close down the discussion. technique I would adopt tonight. is invisible to all save to them. A I visualise myself standing here, no I thought I might take some guidance variation on Google glasses. gimmicks, no jokes. What can I talk from the High Court justices. Justice How we might marvel at their about? Crennan used clever overheads and Honours’ cleverness, poise, brilliance Then the AH-HA! moment comes. digital illustrations. Justice Nettle, and modern style! However, I will use There is one topic I can speak on now does he have a technique. Thirty a neo classical technique — notes. authoritatively as the only living minutes without a note. Justice I have observed that at these expert on the planet. A day in the Gordon, well, we know there is a dinners the Bar likes to be life of the Chief Justice of Victoria … strong nexus between Justice Nettle entertained, so, I thought a couple of I think I just heard the sound of my and Justice Gordon. Her Honour jokes would go over well. Supreme Court colleagues sliding spoke here last year. She rose to the I gathered some expert advice forward nervously in their seats. Dear dais wearing a white sleeveless top. from within the Court. I asked colleagues, do not fear, all I will say I thought ‘Where are her notes?’ former Justice John Coldrey and is entirely fictitious, hypothetical and I suspected in the pocket of her Justices Whelan and J and T Forrest imaginary … well, partly. elegant full skirt. No! Justice Gordon to morning tea. I told them I was The starting point is to choose reached the podium, gripped the speaking at this dinner. I needed which ‘day in the life of’. The lectern on either side and away she a couple of jokes and would they Boomtown Rats summed it up with went. At this stage I thought ‘… bare oblige? I Don’t Like Mondays. By Tuesday, arms … hmm … I wonder?’ Justice Whelan said ‘You’re doing everyone is warming up. The Easy There was a singer of the 1960s, what? Is it too late to withdraw?’ Beats sang Wednesday Just Won’t Dusty Springfield (think Just Wishin’ There was silence. I said ‘Yes I am Go, but not for me. It is usually the and Hopin’, Anyone Who Had a Heart, speaking but I need your help.’ He crescendo of the week. Thursday we and The Son of a Preacher Man). said, ‘Don’t do jokes, whatever you do, all have Friday On My Mind. Friday is She could not remember the words don’t do jokes.’ just Friday, Wednesday is my choice. of songs. Ms Springfield was also More silence. My Wednesday starts early-ish, in short sighted. She overcame her I must have started to look forlorn. lycra, with a short run, followed by performance handicap by writing the Justice J Forrest said, ‘Look, you need a bike ride into the city, so a sort of lyrics on her palms and inner wrists. to understand, we have copyright in mini biathlon. Along the bike route I She would then engage in our comedy.’ (I did not know he knew encounter Associate Justice Gardiner.

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Wednesday is corporations day. We The Bar dinner is a night for the judiciary and discuss the booming list. I peel off the Bar to celebrate what we do, not who we are, to from the peloton. Arriving in chambers, judges and acknowledge that we are all in this together, this thing associates are everywhere in the called the administration of justice. corridors wearing lycra and track shoes or with damp hair. Justices We are seeing a new growth he do? I ask for a memo on this Osborn and Macaulay are just back jurisdiction – sport litigation. We new ‘Sports List’ thinking it will from a swim, Justices Ferguson and should establish a new sports list. occupy him until at least tomorrow. Hargrave have walked in, Justices It would have a racing sub-list of I have been distracted from my Ashley and Redlich are in from the which, I, [J Forrest J] will be in appeal. Back to the authorities. A gym and Justices Lasry and Almond charge. Any thoughts?’ few minutes later the phone goes. have parked their bikes. By 8.30am I ring him: ‘Won’t Justice My PA says Justice Beach wants or so, the lycra disappears and the Cavanough be disappointed if he to speak to me. I cannot believe civilian wear is donned. doesn’t run the racing list? Isn’t he it! How can he have finished so At my desk I find I have an early the racing expert?’ quickly! My PA says, ‘No, no, it’s email sent at 7.09am from Justice A firm ‘No!’ is the reply. ‘He never, the other one, Justice Barry Beach.’ Beach. He is up to date with his well hardly ever, picks a winner!’ What joy! His Honour has heard I judgments, has completed next I say: ‘Didn’t he pick the straight six am in the Practice Court the next week’s appeals and has nothing to recently?’ J Forrest J says: ‘Yes, but he week and wanted to give me a do. He has seen that there are two got the tips from someone else.’ I say: couple of tips. Where would a Chief homicide trials and a defamation ‘I will think about it.’ Justice Forrest Justice be without her Beaches? trial all needing a judge. He has continues, ‘We could also include an Time is ticking, only a few minutes’ started looking at the files and AFL sub-list, with Justice T Forrest reading time left. I am through the would like to help, to do all of them, in charge — after all at the Bar he additional authorities and robe up simultaneously. Will I agree? How got Swan, Barry Hall, a grand final and off to court. We are straight into can I possibly say no? reprieve.’ the appeal at 10.30am. Counsel are This Wednesday I am on an appeal I suggest this new growth excellent and all issues are covered. with a self-represented litigant. I jurisdiction was decimated years We pay homage to the Bar’s pro am apprehensive that we may miss ago by Justice Hayne and others in bono scheme and acknowledge the something and justice may not be done. the Court of Appeal in the Diesel resourcefulness of counsel. Justice The person is in serious trouble. Then Williams case. But I am told a new is done. We finish by 12.40pm, my associate comes into my room North West, Inside Passage has so some time to spare before to say the Bar’s generous pro bono been found. Justice Ginnane with my lunchtime meeting. scheme has come to the rescue. Mr Justice McDonald think industrial On returning to chambers, a Zappia QC will appear for the self-rep. and employment law will provide message, Justice David Beach again! I know then things will be covered. A the big breakthrough. Again, I say, He has heard there is an urgent few minutes later the associate returns, ‘I will think about it.’ matter in the Practice Court and it seems that overnight Mr Holdenson Word travels fast in the Supreme a bail application in the Criminal QC has come in for the other party. Court. There is a knock and in come Division. He is happy to take both, He has four authorities no one Justices Croucher and Beale. They this afternoon. He will have the else had thought of and they have heard there is to be a new Sports List memo done shortly. are precisely on point. football list and wish to volunteer I field some emails and phone calls I have an hour or so to consider for the Richmond list. As criminal and then my meeting. them. Some rapid reading is called and evidence specialists I point out At lunchtime on Wednesdays, the for. I put my head down. that these cases are actually about Court’s Leadership Group meet. For Then an email comes up, it is the judicial review and administrative the Court, leadership is not about Principal Judge of the Common Law law. Justice Croucher quickly tells the power of one but the might of Division, Justice J Forrest. Now, one me he was a top admin law student at many — me with President Maxwell thing is for sure, his Honour is highly Monash. I tell Justice Croucher that and Justices Hargrave, Lasry and J organised, likes to organise everyone his Tiger tail is showing. ‘Let’s put Forrest and Associate Justice Derham else and loves lists. In his Division he this on hold.’ with the Court CEO. This way, we all already has 12 individual lists. My email sounds. Justice Beach keep in touch and have a finger on The email says: again. He has settled both homicide the pulse. Justice Hargrave speaks ‘Dear CJ [I think to myself, ‘he trials and, also, for good measure of how to manage the burgeoning wants something’]. the defamation trial. What else can Commercial Court. Problem-solving

14 VBN VBN 15 and reform are at the forefront. One the President of the Bar on the senior the top of the dome down to William member has another new reform counsel applications which are Street. It looked not like a place of idea that counsel have no speaking about to be launched. In many, many justice but a house of ill-repute, a rights whatsoever and only speak respects, with the support of the Bar, bordello even! That would never do. when spoken to. The rest of the group the appointment of senior counsel is Imagine the jokes upstairs at the lean forward and suggest that would one of the most important things I do. Essoign Club. Eventually we settled be controversial. Let’s have some Next I change out of robes and into on red with gold highlights. 2016 victorian bar dinner victorian 2016 consultation first. civilian wear, again. Following the Courts Council I The leadership group also It is almost 4.30pm when I have head back to my chambers. Time is talks about barristers and what is a meeting of the Courts Council. moving on. It is quieter now. I clear happening across the court. Now and The Council is responsible for the up some emails and calls. I receive a again there is great excitement when new self-governing administration domestic enquiry: ‘When am I coming a new star of the Bar is identified. regime for Victorian courts and home? The dog wants a walk’. I We wind up at 2pm, as I have an the tribunal — Court Services respond ‘I’m on my way – soon’. afternoon appeal. The matter is a novel Victoria. I chair the Courts Council Later I change into my lycra (my one under the Human Rights Charter which involves the Chief Judge, the fifth wardrobe change for the day). with constitutional overtones. It will be Chief Magistrate, the Presidents I head out onto the road. It is dark ‘Dream Court’. We are sitting a bench of VCAT, the Children’s Court and and has been raining. The bitumen of five: Justices Pamela Tate, Anne the Coroner’s Court plus a non- glistens under the street lights. I Ferguson, Elizabeth Hollingworth and judicial member. The Council engage with the cadence of the bike Karin Emerton with me presiding. manages almost a billion dollars as it rolls along and I reflect on the At the Bar table we will have Rachel in real estate, about half a billion day. I reflect that next week I have admissions — the Court admits about There is one topic I can speak on authoritatively as 1400 new lawyers each year. I resolve the only living expert on the planet. A day in the life to speak to the new lawyers about all the values of the Victorian Bar: of the Chief Justice of Victoria independence, integrity, protection and defence of the rule of law, Doyle SC for the moving party, Wendy in funding and employs about defence of the individual against the Harris QC for the first respondent, 1500 staff. It services around 500 State and pro bono support to justice. Rowena Orr QC for the second Victorian judicial officers. Suddenly at a red traffic light my respondent, Fiona McLeod SC for the The meeting, it is all dollars, phone sounds. I pull the phone out third respondent, Melinda Richards buildings and people. We wrap up thinking it might be the Attorney- SC for the State Attorney-General after two hours. General (we have been chasing one intervening and Kristen Walker SC This year the Supreme Court another all day). No — it is not the for the Commonwealth Attorney- marks the 175th anniversary of the Attorney: as Men at Work sang, ‘Who General intervening. The silks’ juniors first sitting, a day when the first five can it be now?’ Yes, Justice Beach. are all women. I reflect as court is barristers were admitted by the new He will have the final sports list being opened, ‘My, my, my, how things Supreme Court judge. The Victorian memo on my desk at 7.08am have changed’. When I started at the Bar and the Supreme Court have a tomorrow. Incidentally, he has heard court in 1998 there was only Justice shared history. there is a serious injury claim that Balmford and me. Women were hardly Court Services Victoria gave the needs a judge and he is happy to take ever seen as counsel in appeals. This funding for the Supreme Court’s it over. He has a new interpretation year, 2016, marks the 20th anniversary recent anniversary illumination and of the Accident Compensation Act of the first female judge appointed to what a sight that was! The main, - he wants to surprise some of his the Supreme Court. historic building was displayed as favourite common law counsel. Now In the appeal the written and oral never before. The lighting technician he is heading home. On my bike I submissions are first-class. I reflect had me choose the colours. I was reflect on what a privilege it is to be that these advocates represent the placed one evening at the front of a Victorian Judge working with the excellent standards and qualities Owen Dixon East standing next to Victorian Bar. I ride off into the night, anticipated from the Victorian Bar a man with a two-way radio as the a tired but happy Chief Justice. in every respect. The appeal moves colours were called up from the And that’s my Wednesday, my ‘day quickly and we finish by five-to-four. lighting pallet. First colour was green. in the life of’. On returning to my chambers No! Next, purple. No! Now red is the Thank you for listening. I have a few calls and, most Supreme Court colour, so next up the Enjoy the night. See you on the importantly, a quick discussion with building was awash with scarlet from dance floor.

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1. John Karkar QC, Maria Myers AC, Allan Myers AC QC. 2. Jan Martin, Svetlata Todorovski 3. Andrew Traghardh, Alison Umbers 4. The Hon Chief Justice Marilyn Warren AC, Mick Heeley 3 5. Evelyn Tadros, Hadi Masloum 6. Holly Renwick, Nik Dragojlovic 7. Sarah Fregon, Jennifer Batrouney QC. 8. Daniel Lorbeer, Spike 5 Buchanan 9. Raini Zambelli, Emma Murphy 10. Emrys Nekvapil, Kathleen Foley 11. Myles Tehan, Natalie Hickey. 12. Adam McBeth, Sophie Mariole, Nicholas Phillpott 13. Attorney-General, the Hon Martin Pakula MP, 4 James Peters QC 14. His Hon. Judge McInerney, The Hon. Justice Nettle 15. Lucy Davis, Christine Willshire, Naomi Lenga 16. Elle Nikou, Adam Baker

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1. Kirstin Green, William Alstergren QC, Courtney Bow, Sarah Fregon 2. Paul Anastassiou QC, Barbara Myers 3. Anthony Strahan, Kate Beattie. 4. The Hon Justice Gordon, David O’Callaghan QC, The Hon Justice Santamaria, 5. Samantha Renwick, Anna Parker 6. David O’Callaghan QC. 7. Michelle Williams QC, Nanette Rogers SC 8. Kess Dovey, Catherine Dermody 9. Philip Cadman, Martin Garrett, Daniel Nguyen. 10. Tiphanie Acreman, The Hon Chief Justice Marilyn Warren AC, Dimitri Ternovski, Nicholas Elias, Tim Jeffrie 11. Paul Halley, Abhi Mukherjee 12. Catherine Kusiak, Monika Paszkiewicz 13. Penny Neskovcin, Timothy McEvoy 14 Daniel Diaz, Michael Bearman 15. Anna Parker, Catherine Fitzgerald, Adam Purton 16 Patrick Tehan QC, Rachel Waters, Simon Pitt, Tom Storey 17. Georgina Costello, Melanie Szydzik, Fiona Forsyth. 18. Tamieka Spencer-Bruce, Ben Ihle, Elizabeth Ruddle, Claire Harris. 19. Kim Bradey, Raph Ajzensztat 20. Nawar Hassan , Daniel Nguyen, Christopher Horan QC, 21. Judge Jillian Williams, William Thomas 22. Paul Anastassiou QC 23. Stephanie De Guio, Claire Cunliffe, Yasser Bakri 24. Eliza Tiernan, Vicki Compton, Julia Lucas, Marissa Chorn, Michelle Jenkins 25. Jennifer Batrouney QC (at lectern) 26. Sarah Fregon, Tully Fletcher 27. Kingsley Davis OAM, Eleanor Coates, Mitch McKenzie, Terence Guthridge, Nicholas Jones

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20 VBN VBN 21 2016 2016 victorian bar dinner VictorianMYER MURAL BarDinnerHALL, MAY 27 2016 Voice of a new generation

MARK COSTELLO

hief Justice French, Chief Justice Warren, fact that with a touch over 2000 members, it’s simply Chief Justice Allsop, Your Honours, not possible to know everyone. Distinguished Guests, Honoured Guests, No, my awareness of the question has rather more ladies and gentlemen. to do with the fact that my anonymity is so great, For many years this speech was the people don’t know that I’m me even when I’m in responsibility of the junior silk. It was the same elevator as them. imposed as a kind of sadistic proof of the old One convenient aspect about life in ODCW is Cadage “good things come to those who wait”. People that the Bar’s notices are hung in the lifts. I always deferred Silk applications to decrease the risk of thought that was terrific; until the Bar Dinner notice standing here. came out and listed me as one of the speakers. That is no longer the tradition. Instead, in the A few times on my way up to level 22 someone in Catholic tradition, I’m to receive all of the pain and the lift, having read the notice about the Bar Dinner, none of the pleasure. It’s a tradition most junior turned to me in the polite way that barristers do and barristers have some familiarity with. asked “who’s he?”. Why I’ve been given the honour is no doubt a It occurred to me that this was a rare opportunity to mystery to you. Lord knows, it’s a mystery to me. – in the political speak of the day – ‘set the narrative’ Bar Presidents, like trustees, don’t give reasons about myself. for their decisions. Although, apparently last year I varied my answers. So don’t be surprised Peters QC gave at least some explanation to his to hear that: choice, Stephen O’Meara QC, when he told him I was the youngest advocate to argue a case unled that he was the “voice of a new generation”. in the High Court since 1924; or The current President conferred no such I’m the only junior who’s beaten R J Stanley QC distinction on me. But even if he did, in Bar terms I’d in three consecutive jury trials; or be the voice of a generation still in utero. Merralls QC has certified me as the second So, while our President, Onasis QC, I mean reincarnation of Owen Dixon. Anastassiou QC, sits there like whatever the Greek That none of that is even remotely true should equivalent of a Sphinx is, knowing exactly why not dissuade your mildly alcohol affected minds from I’m standing here, I don’t. Worse, most of you retaining at least one of those pieces of information are no doubt wondering “who is he?”. and repeating it as a fact on Monday. But my favourite moment in the lead-up to this Who is he? dinner came late one afternoon, a month or so I don’t acknowledge the reality of that question out ago, when two older Silks – both in a state of mild of false modesty. Or even as a simple reflection of the aggravation and smelling ever so slightly of jet fuel

VBN 21 Why I was chosen remains a mystery. Presumably the primary measure of a barrister’s worth. Anastassiou thought that I could tell a war story at least It’s why criminal lawyers tease as well as an old Silk, or a young Silk pretending to be common lawyers about the size an old Silk. of their juries and their relaxed standards of proof. And the common and grape juice – got into an elevator in Greece during that country’s lawyers disparage commercial 2016 victorian bar dinner victorian 2016 on the ground floor with me. debt crisis that a recent article in barristers about their lack of One instinctively put his Neos Kosmos – Melbourne’s Greek juries and ignorance of the laws of spectacles on and started pursuing language newspaper – about the evidence. And commercial lawyers the notices. The poster for the possible restoration of the Hellenic sneer at public lawyers about the dinner attracted his attention. Monarchy, named Paul as a possible near absence of any evidence – let Then the commentary started: future King of Greece. alone the laws of evidence – in their “Well obviously the CJ should speak, That was surprising. He’d always proceedings, not to mention the can’t understand why she doesn’t insist given me the impression that he absurdity of starting a proceeding to on exercising the right more often … already was. obtain relief that does no more than But what about this bloke Costello. But I shouldn’t spend too much tell your opponent how to do your Obviously a tradition-hating trendy. time speaking about Paul. As he said: client over properly the next time. Bad enough we have a few bloody And all the while, the public Don’t spend too much time on me. The ratbag SCs, but this communist won’t lawyers look with a kind of speech is only 20 minutes. If you want even allow his postnominals to be paternalistic bafflement at everyone to spend three or four on me, that’s printed on the notice.” else; and then turn back and stare at fine. Eight at the most. And if you want All too quickly the lift arrived at their Supreme Court Prizes. to mention same cases – and I’m not their floor. As they left the elevator As the weeks rolled by and tonight saying that you should – you might the slightly less inebriated of the two came closer, I tried to summon a little think about: turned to me and said – in the way courage. I said to myself, if Menzies older Silks do – “you’d agree wouldn’t Matthews v SPI Electricity 42 VR – argued Engineers at 26, I’m sure I can you?”. I’d worked with Silks before. I Caleo’s named as appearing but the do the Bar Dinner at 34. That settled knew it wasn’t a question. argument was all mine; me a little. It became my mantra. Then I repeated my mantra to a ACCC v Active Super 92 ACSR; and Our dear leader colleague. She responded: So, I can’t really answer who I am BOSI v ANZ Bank 84 ACSR Mark – you’re not Menzies. And the or why I’m here, except to say that But you just do what you think’s right, Court was barking arguments at him I’m Mark Costello and like all good son. that he was embracing. You won’t want juniors, I’m here because a Silk told to embrace what they yell at you if you me to be. But, whatever his reason, chose me stuff it up. Why I was chosen remains a he did and, unsurprisingly, none of mystery. Presumably Anastassiou my elevator experiences filled me That was sobering. thought that I could tell a war story at with much confidence. Nerves set Later I separately discussed it with least as well as an old Silk, or a young in a little. Richard Niall, Stephen Donaghue Silk pretending to be an old Silk. and Kris Walker. They were all firm in Frankly, I wouldn’t want to enquire Friends their belief that arguing a case in the too deeply into Paul’s mind. Though But friends are a constant source of original jurisdiction of the High Court I don’t doubt that it’s full of very encouragement. Having confided to a is an easier gig than this one. interesting stuff. friend at the criminal bar to being a I only say that so that Chief Justice One wonders if the number for little apprehensive, I was told: French, Justices Nettle and Gordon Mossack Fonseca’s client hotline is can keep it in mind next time one of don’t get too worried about it mate; in there. He may have memorised his them appears. you’re a commercial junior, it’s not like various landholdings across Victoria, On that front, I suspect that anyone will expect any advocacy. large parts of Switzerland and the appearing in the High Court has entire island of Lefkada in Greece; Not exactly the pep-up I’d hoped for. become slightly more difficult since but it’s more likely that he’s bought It’s a comment that’s pretty Nettle J’s appointment. His ability to a supercomputer to store that much reflective of the internal communicate by mental telepathy data. competitiveness of the Bar. first with Hayne J, and now with In fact, I’m told by a Greek friend Notwithstanding the hegemony of Gordon J, presents a further obstacle that Paul acquired so much land paperwork, advocacy is still, I think, to the advocate.

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There weren’t the same sorts of I’m not sure if the fact that I am who each received, what was and is problems when I was an associate in in the same chambers as Ken makes now again Australia’s highest civil the days of the Gleeson Court. There that joke more or less advisable. I’d honour, being made Companions of was no mental telepathy. It was well decided not to use it until last week, the Order of Australia. acknowledged that Gummow J could when in a pretty obsequious attempt It’s worth noting that receiving an read minds, but it wasn’t a cause for to curry favour with him, I suggested AC is a particularly rare feat for a concern; everyone knew that he had that I might take up the same theme practising barrister. So Allan Myers absolutely no interest in what anyone that he had two years ago and entitle can be doubly proud, as can the Bar. else was thinking. my speech “Lessons I have Learned”. Like most people in the room I’ve He responded: met Allan several times. As with most The honoured guests people in the room, Allan has no idea well at least it’ll be quick. The only real instruction I was given we’ve met. was that the burden of the non- The handbag joke went back in. The first time was in a trial in my judicial speech is to announce the The Commonwealth Attorney- first year at the Bar. It was a technical Honoured Guests and perhaps note General is here tonight. It gives case about equitable assignments of a Distinguished Guest or two. As you you some understanding of just choses in action. Allan appeared for will have gathered from the slide how stressful it is to be in the Senate, the plaintiffs. It was an experience. show, there are many. when even in a double dissolution Though I’m from Queensland I I should start by thanking Chief election, you can attend an avowedly had of course heard the expression Justice Warren for her remarkable non-political dinner in another state “more front than Myers”. But sitting speech tonight. There are all sorts only a few weeks before polling day. in that court room it became very of risks in speaking on the same But of course, we’re delighted that apparent to me that I had never truly night as the Chief, not least of which you managed to make the time to appreciated the force and accuracy of are what to say and what to wear. I attend Mr Attorney. And we trust that the statement until that day. ummm-ed and ahhh-ed for a while. you’ve been comfortably seated there Fittingly, the other Alan – Alan Clearly I couldn’t wear my wig. But at table 18C. Archibald QC – is also an honoured was a dinner suit modern enough? Since we’re a non-political body guest tonight as one of the four 45ers I don’t mind admitting that it was it behoves me to mention that the at the dinner. He is joined by Gerald a real relief when I arrived tonight, Shadow-AG, the Hon. Mark Dreyfus Lewis QC, Christopher Connor and saw her Honour and realised that our MP QC, is here, as is the Victorian Clive Rosen. outfits didn’t clash. Attorney-General, the Hon. Martin In a profession where survival is This is Gordon J’s first dinner as a Pakula MP and the State Shadow a meaningful measure of success, sitting member of the High Court. Attorney, Mr John Pesutto MP. We are the 45ers are remarkable. It’s worth Of course her Honour spoke at last grateful for their attendance. considering what 45 years means year’s dinner. I’m not sure if I thought Julian McMahon – who is Victoria’s in a real sense. In the same year it then, but it now occurs to me that Australian of the Year – is an these gentlemen came to the Bar, her elevation was a fair reward for Honoured Guest tonight. He won the floppy disk was invented. Dot the speech. the award for his truly inspiration matrix printers were not invented It’s been suggested to me that work defending those charged with until the next year. Incredibly, there’s a risk in mentioning her capital offences and in opposition the first word processer was not Honour. And it is true that she is to the death penalty. There are few invented until two years later. And seriously intimidating. She has that contested issues of public policy that – and I can’t quite believe this – rare ability of a five-foot-something can unite the Bar in the way that post-it notes weren’t invented for person to look down on someone a opposition to the death penalty does. another four years. foot taller than her. We salute you Julian. It will be immediately apparent But for all her ferociousness, all Six of tonight’s Honoured Guests from that list how much has changed who know her Honour well speak have received civil honours. in legal practise over the past of her loyalty, generosity and Reserve Magistrate Levine from the 45 years. Except if you walk into kindness. She has the constant Children’s Court received an OAM. Archibald’s computer-less chambers, capacity to surprise. For example, Lionel Robbards QC and Lasry J when you realise almost nothing tonight I found out a rather cute were honoured with AMs, as was the has changed. habit of hers that I didn’t previously legendary the Hon. John Batt – who It’s fitting that both Al(l)ans are know about. Apparently, a bit like returns to the Bar Dinner after a long honoured tonight. Generations of Matt Preston with his cravats, Gordon absence. commercial silks have clung on for J names all of her handbags. This The biggest gongs went to dear life, waiting for the rivers of one’s called Ken. President Maxwell and Allan Myers, gold to start to flow upon one of them

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While barristers and High Court Judges are fair game, it would be reckless for someone so early in their career to start telling tales about Judges that I could actually appear before. Though many of their friends and frenemies rang with stories. 2016 victorian bar dinner victorian 2016

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1. Nik Dragojlovic, Bradley Holmes 2. Hadi Mazloum, Jesse Rudd 3. John Champion SC, DPP, His Hon Judge McNab 4. Olaf M Ciolek, Sarala Fitzgerald, Rudi Kruse 5. Paul Connor. 6. Nick Elias, Tim Jeffrie, Tiphanie Acreman 7. Tamieka Spencer-Bruce 8. Stella Gold 9. John Richards QC, Gina Liano 10. Katharine Gladman, Dermot Connors 11. Ben Murphy, Carl Moller. 12. Michelle Williams QC 13. Dinner guests dancing and musicians playing 14. Anna Robertson, Tom Storey 15. David Gilbertson QC, Andrea Mapp 16. Roisin Annesley QC, Simon Wilson QC, Barbara Myers

11 12

14 15 16

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accepting judicial appointment only to do so for the footy coverage. But or retiring to their estates. if you’re S-G you take it as instructions. Generations more have ﬂed to the But irrespective of his victories and bench in the realisation that the Al(l)ans losses since becoming S-G, or those are stayers. that he has in the future, there’s one Others have put their children thing everyone agrees on. Richard is through law school and a gruelling undoubtedly the most popular Solicitor- regime of physical and psychological General since Stephen McLeish. training in the hope that at least the second generation will be there when Conclusion one of them retires. Of course even that If I don’t sit down soon I’m likely to be

8 is a fool’s hope. shot by a Lex Pistol. But before I do I There are a number of new Judges would like to offer some thanks and here tonight. From the Supreme impart a little advice. Court Justice Jane Dixon and Justice Thank you to all who have contacted Keogh. From the County Court, the me and come in support tonight. In State Coroner Judge Hinchey. Justice particular, my chamber mates, who have Moshinsky from the Federal Court. And filled two tables and even had a wait Judges Wilson and Williams from the list. A more natural reaction might have Federal Circuit Court. been to ask me to move to another floor. While barristers and High Court The second is to Paul, for the 9 Judges are fair game, it would be opportunity. I’ll forgive you one day. reckless for someone so early in their Finally, while I have only five (and career to start telling tales about not 45) years at the Bar, the amount of judges that I could actually appear learning year-on-year is so significant before. Though many of their friends that, at least against those here tonight and frenemies rang with stories. who signed the Bar Roll earlier in the Obviously JusticeFul Moshinsky Page Ad was the month, I might have at least one or two wildest of the bunch. Someone even useful observations to make. called me to say that, as a barrister, he was The first is that this is a hard job. It almost late to court once. can easily become all consuming. Keep Victoria’s new Solicitor-General – friends and family around you that will Richard “The River” Niall QC – is an keep you in check. honoured guest. The second is to closely observe I’m in chambers with Richard, the traits of those you admire and so again there’s some delicateness – without seeking to impersonate required, particularly given what I’ve them – use those traits as a guide. already said about Ken Hayne. Be like Wendy Harris QC and don’t Richard made his name at the Bar let any opponent, no matter how as Tonto to Debbie Mortimer’s Lone senior, intimidate you. Be like Hon. Ranger. But even before her Honour Ken Hayne AC and care deeply about rode off into the judicial sunset, Tonto identifying the right question. Be like was kickin’ ass and taking names. Tony Kelly QC and care deeply about

13 Richard knows how to win. assisting the court. Be like Mortimer Unfortunately, that’s not the role of a J when she was at the Bar and ﬁnd State Solicitor-General. Their job is to improbable ways to win. Be like go to Canberra so that the High Court Gordon J and read everything. Three can explain why they’re wrong and why times. Be like Alan Archibald QC and the Commonwealth Solicitor-General is – despite 45 years of hard labour – right. I’m not sure he’s suited to it. still care about winning. Be like Peter Observing Richard from close Hanks QC and after a life in the law quarters it’s become clear to me that still ﬁnd the intellectual interest in it. being S-G is quite different from life But most of all, don’t be like me and as a civilian. For example, normally allow yourself to be forced into speaking barristers that read the Herald Sun claim at the Bar Dinner.

VBN 25 around town around Afternoon tea at Government House

A reception for female rural 1 and regional practitioners*

EMMA PEPPLER

he Governor of Victoria, Linda the “sudden swell of women at the Bar” Dessau AM, recently hosted an event Her Excellency wrote at the time: for female rural and regional legal T The natural extension of this trend is practitioners at Government House in the undoubtedly that the number of women at Royal Botanic Gardens. Members of the Bar, the Bar in Victoria, will in the near future, including female barristers with rural and be directly commensurate with the number regional practices, were also in attendance. of women admitted to practice in Victoria. The tinkling of a baby grand piano greeted attendees on arrival. Governor Dessau It is interesting to reflect, as Her Excellency delivered a thoughtful speech. Afternoon did, that significantly more women have tea was served and guests were free to since come to the Bar than the “inundation” roam around Government House to admire perceived at 1981. And yet, the “near the décor of the grand rooms. This elegant future” envisaged has not yet arrived, in setting provided an opportunity to discuss that the number of women at the Bar is not and focus on two important topics, namely commensurate with the number of women the challenges of rural and regional practice admitted to practice in Victoria. The figures and the place of female practitioners in the are revealing: as at May 2016, there are profession generally. 2,100 barristers at the Victorian Bar, 577 of Practice in rural and regional areas can whom are female (27.5 per cent). For silks, be isolating at times. The large network 37 of 313 are female (11.8 per cent). Yet for of nearby colleagues taken for granted about the past 20-to-30-years the gender of by those practising in Melbourne’s legal law graduates has been broadly equal. There precinct does not exist. The event was is not space in this article to examine these therefore important in building networks for statistics further, but it is something for us all rural and regional practitioners. to ruminate upon. In her remarks, Governor Dessau On behalf of the barristers and discussed the place of female practitioners. practitioners who attended the event on Her Excellency (who signed our Bar Roll in 3 March 2016, may I extend our thanks 1978) reflected upon an article she wrote for to Governor Dessau, for the delightful Victorian Bar News in its winter 1981 issue. afternoon at Government House, and The article is entitled “A Necessarily Short for the ongoing support for female History of Women at the Bar” and it sets practitioners across this great State. out biographical details of the early women * The event took place on 3 March 2016. The of our Bar1. Governor Dessau observed in Victorian Bar was represented by our President, Paul that article that there had been a relative Anastassiou QC. Thanks should also go to Jennifer Batrouney QC, who was responsible for suggesting inundation of women joining the Bar. Forty- the event; and to Sally Bodman of the Bar Office for nine women had signed the Bar Roll since assisting with co-ordination. 1975, with the total number of women on the 1 The article has been republished on page 80 Roll in Victoria in 1981 being 53. Referring to of this issue of Victorian Bar News.

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1. Emma Peppler, Nerida Wallace, Steven Sapountsis, Jennifer Batrouney QC, Belinda Wilson. 2. Caroline Counsel, Her Hon. Judge Morrish. 3. Jennifer Batrouney QC, Ella Thompson, Paul Anastassious QC, Her Excellency, Linda Dessau AM. 4. Leonie Auld, Katherine Anderson. 5. Judith Benson 6. Jennifer Batrouney QC, Ella Thompson, Her Excellency, Linda Dessau AM, The Hon. Chief 4 Justice Marilyn Warren AC. 7. Wendy Harris QC, Barbara Osafo-Kwaako. 8. Emma Peppler, Simone Bailey, Margot Harris, Barbara Myers.

26 VBN 7 8 VBN 27 Castan Chambers

Launching Level 15 HAROON HASSAN

knew relatively little about Ron Castan readers and his colleagues from the many streams of law, particularly AM QC when I signed the Bar roll. Bar and beyond. Robert spoke warmly constitutional and administrative law ISadly, he had passed away just as I was of his former mentor and of the crucial matters, one could bring change for the beginning my legal career. What little role that chambers plays in the life of a better of the country itself…. I knew I had read or heard about from barrister. He stressed the important role In her gracious reply on behalf of the researching arguably his most famous that colleagues in chambers can play in members of our floor, Helen Symon case, Mabo & Ors v State of Queensland making our time at the Bar rewarding. QC eloquently acknowledged the (No.2) (1992) 175 CLR 1.1 However, I Steven Castan (Ron’s eldest son and a significance and enduring nature of have been fortunate enough to spend member of our Bar) spoke on behalf of the Ron Castan’s legacy. time with those who shared chambers family about his father’s time in the law: Four silks and 16 junior counsel (not with Ron (and counted him as a friend). Dad’s values as a person and a lawyer counting readers) make up Level 15. At I have also had the opportunity to meet will no doubt resonate for those a personal level I’m pleased to note that his extraordinary family. In doing so, I who work within the newly minted our floor is a reflection of the diversity have had the chance to learn a little more Castan Chambers. Dad believed that is slowly but steadily emerging about a legend of our Bar.2 that through the law one could bring within the Victorian Bar. There are six Robert Richter QC (Ron’s first justice and equality to the fore, and women on the floor (one silk and five reader) spoke at the launch of Level 15 could create change for the better for juniors). Three of our members are of of Castan Chambers last November. clients of all walks of life. Even more Asian heritage. The members of Level Present were members of Ron’s family so, he truly believed that through the 15 have expertise in a variety of areas (including his wife Nellie), many of his

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1. Amanda Jowett, Kathleena Smith, Adrian Muller, Michael Kontoudis 2. Family members of the late Ron Castan AM QC 3. The Hon. Susan Crennan AC QC, Garry Brinkworth, James Peters QC 4. Robert Richter QC, Ron Merkel QC.

of practice including: industrial and At the risk of offending the traditionalists, I ask employment law, crime, common law, rhetorically whether that sort of environment is fit for commercial law, constitutional and administrative law and, fittingly for purpose for counsel working in the 21st century? a chambers named after Ron Castan, as competitive pressures on lawyers floor also lent a helping hand through human rights law. abound. It is probably fair to assume the establishment of an art committee Establishing new chambers that an open-plan workspace would be (to source and purchase communal anathema to the majority of the Bar. Level artwork for the floor) as well as a social The traditional view of chambers 15’s design was not quite that radical committee (but more about that later). conjures up images of private rooms, but there was a definite emphasis on dark mahogany furniture complete with collaborative space. The value of collaborative and the obligatory Chesterfields and plush As those that have been through the communal spaces in chambers carpets. Sombre and learned surrounds process before will attest, establishing new befitting the serious and often solitary As Steven Castan remarked at the launch chambers can throw up unique challenges. work of counsel. One can still find of chambers: It has been remarked (often through gritted examples of this traditional aesthetic teeth) that trying to get barristers to agree Dad believed that a person is unlikely in chambers dotted around the legal on anything is like herding cats. to achieve effective change solely precinct. At the risk of offending the The task of achieving consensus fell on their own, that being surrounded traditionalists, I ask rhetorically whether to a sub-committee comprised of Ray by like-minded helpful colleagues in that sort of environment is fit for purpose Finkelstein QC, Helen Symon QC, Sam an inclusive environment stimulated for counsel working in the 21st century? Ure, Adrian Muller, Sarala Fitzgerald the likelihood of finding solutions to Since the turn of the century, the and Siobhan Kelly. They ably took over the many complex and seemingly trend has, been away from traditional stewardship of the design process with intractable problems that one might offices towards collaborative working architect Christopher Hansson and the face. In chambers, and at the Bar, spaces. That trend has, in part, been team at BCL. I am immensely grateful for Dad found an inclusive and open driven by a desire to minimise overheads all their efforts. Other members of the environment.

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Those who have already visited our between the members of the floor it is Three large open-plan workstations floor will have experienced the open and often an invaluable opportunity to learn have also been provided for our Practice collaborative spaces where colleagues, from colleagues’ past experience or to Support Manager and the personal instructors and clients alike can meet gather “intelligence”. The kitchen assistants privately employed by various and confer informally. The design of is also the centre of operations for our members of the floor. In addition there Level 15 was intended to be both flexible social committee and is also the scene are two “hot desks” available for visiting and innovative. As a floor we enjoy one of many other impromptu celebrations clients and instructors to set up and work another’s company and wanted to ensure and gatherings. whilst visiting chambers. They are also we could enhance an already strong spirit Next to the kitchen is a large elevated available for use by research assistants, of collegiality. We also wanted chambers conference table which is used for more readers and work experience students to be a welcoming and comfortable formal functions, chambers meetings as required. space for clients and instructors as and informal discussions outside of the opposed to being intimidating. Overall, confines of individual chambers. On A nod to healthy living the design has been a great success and the western side of the floor is another Last but not least, the design committee has helped to strengthen the professional collaborative space featuring comfortable wanted to ensure that our chambers and personal relationships on the floor. armchairs and a coffee table ideal for contained high quality end of trip That is also consistent with Steven’s group discussions. facilities to cater for the many members reflections about his father’s experiences Whilst some members of the floor of chambers who ride, jog and walk at the Bar. have migrated to exclusively “digital in each day. Two large shower rooms, The large and modern kitchen is at the libraries”, a shared collection of law space for personal storage and drying heart of our chambers. The kitchen is the reports and texts is spread around the racks mean there is no excuse not to site of a weekly chambers lunch (a tradition floor and is available for any member get in one’s recommended dose of daily Alan Goldberg and Ray Finkelstein shared of chambers to browse. The design of exercise. In the unlikely event they are with Ron Castan and the other esteemed chambers ensures that reading and both occupied the building also contains members of their chambers many years collaborative spaces are never too far a sizeable end of trip facility on the ago). Apart from ensuring interaction away from each part of the collection. ground floor to deal with any overflow.

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1. Rose Singleton, Clytie Shimmin and Maya Narayan 2. Emily Porter, Fiona Forsyth, Fiona Ryan. 3. Katherine Anderson and others. 4. Philip Cadman, Daniel Snyder, Nicole Papaleo

After a refreshing shower many of our There is also a large, dedicated conferences as well as quiet reflection more health conscious members can be conference room (available on a first- and study. seen raiding the fridge to prepare healthy come-first-served basis) which is utilised A fitting tribute breakfasts or snacks for the working by all members of the floor, regardless Walking into our new chambers each day ahead. The kitchen is often a hive of of seniority. There are also two spacious morning is a genuine pleasure. Each activity during breakfast and lunch times internal rooms that are presently individual room reflects the unique as there is plenty of room for people to occupied by former readers. In time, personality of the barrister who occupies sit, eat and chat to one another rather those rooms might serve as additional it. It is a refreshing contemporary take than being isolated in chambers. dedicated meeting rooms, which would on traditional barristers’ chambers that permit mediations to be held on the floor. affords privacy and yet encourages An emphasis on open spaces The abundance of open space and collaboration. It allows us to truly enjoy and light the use of wooden floorboards and the place that we work. Most importantly, bench tops adds warmth to common The design of Level 15 also aims to it is a space that actively cultivates and areas and helps foster collaboration maximise the use of light and space promotes two of the most important and discussion between members in order to create a welcoming and qualities of our bar, collegiality and of chambers and guests, which is a functional space for us all to work in. The camaraderie. feature that is often sorely lacking in bold and striking design of the glass and I am sure that Ron Castan would more traditional chambers layouts. steel doors of each chamber (a common approve. It is also more in keeping with the feature throughout all three levels of 1 See also Louise Martin’s article “Mabo –The case contemporary design principles that are Castan Chambers) maximises the light that made history” VBN No. 152 (Spring 2012). increasingly found in the work spaces Ron Castan argued a number of landmark that flows into the common areas. of our principal clients, the solicitors’ cases in the High Court including Koowarta The majority of rooms have large v Bjelke-Petersen (1982) 153 CLR 168 and branch of the profession. That is not to floor-to-ceiling windows overlooking Commonwealth v Tasmania (1983) 158 CLR 1. say that we have thrown out the baby the Supreme Court, CBD and Flagstaff 2 Sam Blakshi’s excellent article about his with the bathwater. All chambers on Gardens, depending on their orientation. late grandfather, which is available for the floor are well suited to confidential download online.

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BRAD BARR & NATALIE HICKEY

he inaugural Junior Bar Conference was a raging success. Leana Papaelia, Erin Gardner and Katherine Brazenor provided sixty-eight barristers of up to ﬁve years’ call attended the input into the conference program. Tconference, taking the opportunity to hear from judges, The conference commenced with a well-attended breakfast silks, external consultants and other junior barristers about in the Essoign Club. It was a perfect way to start the day, not topics of interest to the junior Bar. just because of the fresh fruit and croissants, but because it Held on 19 February 2016 in the Neil McPhee Room in Owen enabled participants to meet and mingle with members of the Dixon Chambers East, the Junior Bar Conference provided Victorian Bar Council and each other. The start of the calendar specialised workshops and networking opportunities for junior year often requires people to make the effort to re-engage with barristers, as well as some precious CPD points. each other. The Junior Bar Conference was the ideal occasion to Rachel Chrapot, a driving force behind the conference and let this happen naturally. the Bar’s Manager of Education and Policy, explained that the Rufus Black, Master of Ormond College at the University of aim was to cater for the needs of junior barristers, to bring them Melbourne, then had conference participants spellbound by his together, and to keep costs down because members of the presentation on the Victorian Bar’s “Performance, Challenges junior Bar can often ﬁnd larger conferences unaffordable. and Opportunities in the Post GFC Legal World”. Black’s With oversight of the readers’ course, Rachel had also observed optimistic take on the Victorian Bar’s position in the current that, after the intensity of the readers course, members of the legal market and its prospects in the future led to a collective junior Bar could feel a little lost. She said, “I felt the junior Bar needed sigh of relief. Unsurprisingly, one topic of great interest to the a place where they could ask questions and everyone in the audience conference participants was Black’s statistical comparison of would go “hey yeah I have had that issue too!” income distribution at the Bar between practice areas, seniority A dedicated working group that included Rachel Walsh, and gender. Whilst it appears true that “crime doesn’t pay”,

32 VBN VBN 33 around town the figures suggest that Children’s host about appropriate ‘objections how to manage a day in court. Much of Court barristers would gladly assume etiquette’ depending on the occasion. the emphasis was on preparing for court, the earnings of criminal law barristers. Justice Elliott of the Supreme in order to make the actual time in court Black urged junior barristers to consider Court and Justin Graham educated more manageable. This included preparing increasing their charge-out rates, arguing their group of junior barristers substantively as well as organising the that barristers mark themselves down about effective methods of proofing relevant documents and liaising with compared to their solicitor counterparts, witnesses. Of course, a master class instructing solicitors. in circumstances where barristers offer wouldn’t be a master class without Following a delicious buffet lunch a speciality skill-set which should be war stories and this session was no at which the participants had the appropriately financially rewarded. exception. An enlightening part of opportunity to network with silks, Justice Participants then attended one of the discussion concerned when to Redlich of the Court of Appeal chaired three “master classes”. Justice Priest distribute a proof of a witness’ evidence a session about ethical issues for junior of the Court of Appeal and Elizabeth and the potential pitfalls of doing so in barristers. Ted Woodward SC, Charles Brimer presented a session on dealing final rather than draft form. Those in Shaw and Lisa Hannon provided practical with objections. Justice Priest attendance will give greater thought in advice about how to deal with ethical entertained attendees with numerous future to the most prudent way to proof issues that arise both inside and outside anecdotes illustrating when to object, witnesses. the court room. and when not to do so. Brimer engaged Justice Macaulay of the Supreme Court Adrian Finanzio SC chaired the final in some gentle jousting with her co- and Andrew Hanak provided advice about session, at which Laura Keily, Rachel Walsh and Amanda Burnnard answered the age-old question, “What are solicitors looking for?” The answer, my friends, may only be revealed to those who attend future Junior Bar Conferences.

Essoign Club

As an example of the importance of the Essoign Club to both Members of the Bar and the Judiciary, we are pleased to publish a copy of a letter forwarded to the Essoign Club from Justices Beach and Cavanough in relation to the visit to the Club recently by an English Court of Appeal Judge. We encourage all Members of the Bar who have not yet become members of the Essoign Club to do so, so they can utilise the great services provided by the Club.

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The Illumination

Celebrating the 175th anniversary of the ﬁrst sitting of the Victorian Supreme Court JUSTIN WHEELAHAN

alking down William Street on a dark April evening, as the Melbourne sky turned a WHensonesque hue of blue, I looked up to see Lady Justice projected onto the unfortunate scatological pantone of brown, which is the Telstra telephone exchange building. She was on a slight angle and precarious, as if she had just tripped over, with the Sword of Justice hanging over the Court of Appeal like the sword of Damocles. The solemnity and solidity of the Supreme Court, with its classical copper green architectonic dome, pregnant with reason, steeped in history, reminiscent of the Dublin Four Courts, was all of sudden iridescent, disrupted, and more reminiscent of the Rainbow Serpent Festival. The sandstone superstructure was swept away in a blaze of confected psychedelic cellophane colour. The dome was red and the windows were yellow. All that was solid was melting into air. All that was holy profaned. “What the hell is going on?” I thought. After making some inquiries, I realised that I could relax; everything was in its right place. The occasion for the illumination of the Supreme Court was its dodransbicentennial. Perhaps the occasion lacked the symmetry of a bicentennial, or even a sesquicentennial, but the 175th anniversary of the first sitting of the Supreme Court was a milestone to celebrate photo courtesy of matthew townsend nonetheless. And celebrate we did. On 27 April, the Illuminati gathered in the Essoign Club — ocular pole position to watch the switch being flicked on the illumination of the Court — in celebration of its 175th anniversary. The event was convivial and well attended. The President of the Bar Association, Paul Anastassiou QC, welcomed the Chief Justice of the Supreme Court, Marilyn Warren, and noted that viewing the illumination from such a vantage point was a fitting occasion to mark the paramount relationship between the Bar and Bench,

34 VBN VBN 35 from which arises mutual respect, and the unassailable comity between counsel and courts. around town around The occasion also marked the launch of a new book, Judging for the People, A Social History of the Supreme Court in Victoria 1841-2016, a collaboration between the Supreme Court of Victoria and the Royal Historical Society of Victoria and edited by Simon Smith. Judging for the People commemorates the 175th anniversary of the first sitting of the Supreme Court of Victoria presided over by John Walpole Willis, as resident judge of New South Wales sitting in the Port Phillip District, admitting five barristers (including Redmond Barry) sitting in a small brick building on the corner of Bourke and King Streets. The preface to the book, authored by the Chief Justice, no less, boasts that “this is not merely a book written by free of bias. The head of the Public her it was unfair that she did not desire lawyers for lawyers”, and it isn’t. Works Department, which was under sexual intercourse with her husband on Each chapter explores different investigation by a Royal Commission the ground that they were getting too fascinating aspects of social history at the time, maintained that Public old when her sexual needs were being of the court, such as its design, the Works architects could not enter the satisfied by Mrs R. The petitioner handed controversial appointment of John Willis, competition. The winner, Alfred Smith, to her a copy of Betrand Russell’s letter the Court’s development from a colonial however, had been assisted by Arthur to him of 24 November, and he read it to outpost of Sydney to Federation, through Johnson, who was an architect employed her.” Russell’s reply was as follows: to the post-war years and modernity. by Public Works and the judge of the Dear Mr ——, Other chapters examine the Court’s competition. The public was outraged, Thank you for your letter of November work on divorce law, social policy, capital Smith’s award was withdrawn and 16. My attitude about crimes, the fourth estate and the many Wardell was required to make the homosexuality is that it should be court staff working behind the scenes, decision again. He selected Smith’s regarded no differently from from librarians to judicial barbers. A winning entry. heterosexual relations. When I say that manuscript and archive collated by the There is also an interesting account it is a matter only for the two late Peter Balmford became a rich source of A v A [1962] VR 619, a case in people immediately concerned, I should of material for the book. which Judge John Barry had to decide include a husband or wife as The book is full of fun facts. For whether a mother had willfully deserted immediately concerned; and the example, John Willis laid the foundation a husband. The wife had pursued a children also, obviously are stone to the Second Supreme Court lesbian relationship with another married concerned. Very often these family (that held one of the Eureka trials in 1855 woman in rural Victoria, with an alleged considerations would make extra- and the trial of Ned Kelly in 1880) in an deleterious effect on the child of the marital homosexual relation elaborate Mayan-like ritual: marriage. The question to be decided undesirable, but, if one party to a was whether the wife had repudiated the The stone was set in place, knocked marriage is deeply and seriously in love marriage after the husband had asked three times by a maul with both with someone else, it is hardly the wife to leave the matrimonial home. Willis and the Worshipful Master of possible for the marriage to remain The wife had claimed that a passage in the Freemasons and then strewn happy, and sometimes divorce Betrand Russells’ On Why I Am Not a with corn from a cornucopia and would be best. One cannot make Christian justified her in satisfying her appointed with oil and wine general rules in such matters. homoerotic propensities. The husband poured from silver vases. wrote to the philosopher to describe his Yours Sincerely The 1873 competition that conceived unhappy domestic situation and invited Signed Bertrand Russell the current Supreme Court plans was him to answer a number of questions. Sage advice indeed. There really is an inauspicious beginning for a forum The report states “the petitioner told something in this book for everyone. photo courtesy of simon tisher courtesy photo

36 VBN VBN 37 LIV-Vic Bar and Bench Golf event around town 24 March 2016, Peninsula Kingswood Golf Club

Ian Dunn (Captain of the LIV team) presenting the Sir Edmund Herring memorial trophy to Gavan Rice (Captain of the Vic Bar team) after the Vic Bar won the annual LIV-Vic Bar Golf event, held this year on 24 March 2016 at Peninsula Kingswood Golf Club.

VBN 37 News ViewsAND Farewell to the wig

GEORGINA SCHOFF

he notice published by the Supreme counsel, whose gowns are made of wool. Court was short. It read: “Judges of the Although steeped in tradition, barristers’ robes have Supreme Court of Victoria will cease evolved with the times. In 1822, Humphrey Ravenscroft to wear wigs in all matters, trial and patented the ‘forensic wig’. The inventiveness of this appellate, as and from 1 May 2016.” In white horsehair wig abided in its fixed curls, which did that way, a tradition that dates back to not require frizzing, curling or the use of hard pomatums 17th century England of judges and barristers wearing and powders; in the forming of “curls in a way not to be wigs in court appears to be drawing to a close in Victoria. uncurled; and also for the tails of the wig not to require Many will welcome this decision to do away with a feature tying in dressing, and, further, the impossibility of any of our court attire that can appear out of harmony with person untying them”.5 This ingenious invention was Tour times, perhaps even ridiculous. Indeed, the resolution applied to wigs worn by both the Bench and the Bar and might be applauded as a fitting way to mark the 175th also comes in a full-bottomed style worn by justices in anniversary of the Victorian Supreme Court.1 Others will many jurisdictions (and our learned friends in New South mourn this sartorial symbol of our honourable profession. Wales) on ceremonial occasions. Whatever the case, the wig ought not be consigned to Before the advent of the forensic wig, it was necessary history without commemoration. for barristers to wear a ‘wig or powder bag’ tied or In 1635 in England, a royal decree (known as the buttoned to their gowns at the back into which the tails of Judges’ Rules) required judges to wear black or violet their wigs were tied to protect the gown from the powder robes on normal occasions, and red robes for Saint’s and pomatums used to care for the wig. Some might be Days, and when sitting in criminal matters. Wigs were not surprised to learn that the rosette, worn buttoned to the worn, but coifs—a white skull cap of pointed lace—were. gowns of Queen’s Counsel and Senior Counsel in Victoria, Although barristers were not subject to the Judges’ Rules, is a stylised nod to that obsolete wig or powder bag.6 the 1635 rules of the Inns prescribed that barristers’ In Australia, some judges initially questioned the “dress on all occasions is to be in gowns of a sad colour” practicalities of wearing heavy robes in Australia’s hot as a mark of their respect for the court.2 The wig only climate. In a notable exchange with two English barristers came later to the Bench and Bar after King Charles who had arrived bewigged for a case before him in 1846, II, restored to the English throne in 1660, brought the Justice Cooper of the Supreme Court of South Australia fashion with him from the court of Louis XIV of France remarked: where the perry-wig or “perruque”, often ludicrously If anyone is justified in wearing a wig, it is myself; for in summer large 3, had been virtually obligatory for men of social I am tormented with the flies settling on my bare head. But I fear rank. So, too, it soon was in England. that, if I were to adopt it, I should be still more fatigued than I am Upon the death of King Charles II in 1685, the Bar went already by the long sittings which I frequently have to endure. 7 into mourning, donning a black cloth robe with wide, open sleeves and a mourning hood over the left shoulder. Perhaps because the flies were worse than the heat, That mourning robe is said to be the genesis of the gown traditional English court attire was soon firmly that barristers in the United Kingdom and Australia entrenched and the wig has been worn by barristers still wear over their bar jacket and jabot.4 Today, the in the State of Victoria since at least the 1860s.8 ‘mourning hood’ is merely suggested by the flap of fabric An illustration of the opening of the first Supreme at the left shoulder of the gown worn by junior counsel, Court building (a cottage in King Street) in 18419 sometimes referred to as a ‘money bag’. There are other shows barristers entering the court holding their flourishes too. Queen’s Counsel and Senior Counsel briefs. Their wigs identify them as barristers. wear gowns of silk to distinguish them from junior In this way, our robes have served to distinguish

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The mere recital of this history suggests that the recognised in the street by witnesses or jury members who have 15 minutes gowns that barristers wear are just as anachronistic earlier been in the same courtroom as the wig. with them. This is a comfort to some judges and barristers and seems to be barristers from other members Law Act (1975) to prohibit the wearing the reason they are still worn in many of the legal profession. of robes by judges and counsel in criminal jurisdictions. The mere recital of this matrimonial proceedings, which Once upon a time, it would have history suggests that the gowns were intended to be less formal. been unthinkable to wear robes that barristers wear are just as As the justices of the High Court without a wig—but we have done so in anachronistic as the wig. But whilst acknowledged in Russell v Russell, in a many courts for many years now. the wig seems no longer fashionable, decision upholding the constitutional In 2008 the Lord Chief Justice of there is general agreement that some validity of that provision, robes are England and Wales handed down a kind of formal court attire continues worn by the court as a mark of dignity practice direction, which introduced to be appropriate for both judges and and status and bring a formality to new civil robes for the judiciary in civil barristers in trials and appeals. proceedings that the parliament had and family cases in England and Wales. Robes are worn, not merely out sought to dispense with.11 The new robes are worn without wigs of respect for the tradition of the Whether our robes should be save in criminal matters.12 law and the courts, but also because worn with wigs is a slightly different, Following the reforms, the Bar they emphasise the objectivity of the but related, question. Apart from Council of England and Wales carried law and deﬂect personal attention questions of tradition and sartorial out two surveys of the profession from the judges and barristers who elegance, the only argument that and consulted with the specialist Bar play such a fundamental part in the might particularly apply to wigs as associations before adopting a revised judicial process.10 Like almost every part of our robes is that they maintain guidance on court dress, which was aspect of the court room—from its a level of anonymity. It was for that published on 2 June 2009. The Bar of design and furnishings to its rituals reason that the Commonwealth England and Wales did not abandon and procedures—the attire of judges, Parliament repealed section 97(4) their wigs. They were retained as part counsel and court ofﬁcials can in 1987 after one justice was shot, of formal court dress for barristers serve to underline the formality of and the homes of others, and the appearing in the Court of Appeal, the the occasion. It was for this reason Parramatta Family Court were House of Lords and the Privy Council, that the Commonwealth Parliament bombed. Many barristers and judges for civil trials in the High Court and enacted section 97(4) of the Family will tell you that they have not been the County Court, and for all criminal

VBN 39 the former Chief Judge of the County Court, members of the Common Law Bar Association continued on occasion news and views news to wear their wigs in that Court, even when the presiding judge did not. Where counsel could not agree, senior counsel had the ﬁnal call, ensuring uniformity of attire at the bar table. The now repealed Legal Profession Act 2004 (Vic) provided that, despite any rule of practice or custom to the contrary, it was not necessary for a barrister to robe in order to appear before any court or tribunal in any civil proceeding not involving a jury or in any summary criminal procedure.16 Nor matters in the Crown Court (except Appeal in the Supreme Court in the could the Bar require that a barrister bail applications).13 The guidance State in which they ordinarily practice. appear robed in any such proceeding.17 stressed the importance of adopting As a result, counsel appearing before The LPA was silent on the question a consistent practice throughout the the Court are not uniformly robed. of robing in trials before juries. The courts of England and Wales. The Those from Victoria, for instance, have Legal Profession Uniform Law18, which effect of the revised guidance was that previously appeared in wigs whilst repealed the LPA, makes no reference whilst justices hearing civil trials and those from NSW wear their robes at all to the question of robes. appeals in the UK did not wear wigs, without wigs. Section 9A of the Supreme Court counsel appearing before them did. Justices of the Federal Court wear Act 1986 (Vic) gives a power to the In criminal trials, wigs were worn by robes without wigs as do counsel who Chief Justice to determine all matters justices and barristers alike. appear before them. pertaining to the robing of judges of Subsequently, in 2011, the President n New South Wales, court the court. The Act is silent as to the of the Supreme Court of the United attire to be worn by barristers robing of barristers. However, what Kingdom announced that advocates is governed by the court attire counsel wear is a matter of practice and before that court and the Judicial policy issued by the Supreme Court.15 procedure and falls within, at least, the Committee of the Privy Council may, RobesI are worn with wigs if appearing inherent jurisdiction of the Court. by agreement, dispense with any or before the Court of Criminal Appeal, In Russell v Russell the majority all of the elements of traditional Court and in all criminal and civil trials. of the High Court held that section dress. A press notice issued by the Robes are worn without wigs only 97(4) of the Family Law Act 1975 (Cth), Court noted that the development when appearing in the Court of which prohibited the wearing of robes would further underline the Court’s Appeal. in state courts exercising jurisdiction commitment to providing an In 2009 wigs were abandoned entirely under the Act, was a valid exercise appropriate environment for the in Western Australia. As for the other of Commonwealth power because consideration of legal issues and States and Territories, much depends on it concerned a matter of procedure was in line with the Court’s goal to whether the case is of a civil or criminal that was incidental to the exercise make the legal process as accessible nature. For instance, in Tasmania, the of the jurisdiction conferred.19 As as possible.14 Of course, members of ACT and the Northern Territory, wigs Stephen J explained, if the aim of the the Judicial Committee of the Privy play no part in a civil case, but may be Act was to dispense so far as possible Council have always worn business worn in criminal trials. with formality, then the prohibition suits and have never worn wigs. Until the Chief Justice’s resolution of the wearing of wig and gown was In Australia, the nature of our this year the practice in the wearing of properly incidental to the power and Federation means that uniformity wigs in the Supreme Court of Victoria constitutionally valid.20 Barwick CJ is rare. Court attire for justices and was not uniform. It was a matter and Gibbs J, who dissented on the barristers varies from jurisdiction to for an individual justice to decide question of validity, did so on the jurisdiction. Whilst the justices of the whether to wear a wig and counsel basis that it was within the inherent High Court adopted simpliﬁed robes generally followed suit. jurisdiction of the state courts to and abandoned their wigs in 1988, The judges of the County Court gave decide how their judges should dress barristers who appear before that up the wearing of wigs in all common and what dress they would expect court have continued to wear what law matters in 1996 but retained them of those who appear before them as is customarily worn in the Court of in crime. By a convention agreed with representatives of the parties.21

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9. Drawn some years later in 1875 by In Victoria, the notice to the the judges of the common law division Wilbraham Fredrick Evelyn Liardet. profession, which originally announced have resolved, pursuant to the Court’s The illustration is reproduced by the the Chief Justice’s determination under inherent jurisdiction, to direct that tapestry which hangs in the Lonsdale Street entrance of Owen Dixon section 9A, did not refer to the robes legal practitioners not wear wigs in Chambers West, see the photograph that counsel should wear. any Common Law proceeding. above. In a memorandum dated 22 So is it farewell to the wig in 10. This was powerfully illustrated April 2016 the President of the Victoria? We are yet to know whether recently when perhaps the most Victorian Bar, Paul Anastasiou QC, the County Court too will cease glamorous barrister in the world, Amal Clooney, was asked what she informed members of the Bar of completely the wearing of wigs. But was wearing by a reporter as she the Chief Justice’s determination. for most of us, our wig wearing days entered court. She responded “Ede & The memorandum acknowledged are probably over. Ravenscroft”. that there is a range of diverse, and 1. The Chief Justice’s resolution to end 11. Russell v Russell (1976) 134 CLR 495, in many cases, strongly held views the wearing of wigs by judges in the per Barwick CJ at 506; Gibbs J at 519- 520; Stephen J at 531-532. amongst members of counsel as to the Supreme Court was made on 21 April 2016, almost exactly 175 years since circumstances in which wigs ought 12. Practice Direction (Court Dress) the ﬁrst resident Supreme Court judge, (No 5) and Amendment No 20 to to be worn (if at all). However, it said, Judge John Walpole Willis, took his the Consolidated Criminal Practice whilst the Chief Justice’s resolution place on the Bench in Victoria on 12 Directions (Court Dress), 31 July 2008 April 1841. did not constitute a directive to the 13. Court Dress: Revised Guidance from Bar, the key consideration in so far as 2. McQueen, Robert ‘Of Wigs and Gowns: the Chairman of the Bar Council of A Short History of Legal and Judicial the Bar Council was concerned, was England and Wales, Desmond Browne Dress in Australia’ (1999) 16(1)Law in QC, 2 June 2009 the fundamental importance that the Context 31: Misplaced Traditions: British 14. Press Notice, The Supreme Court of Bar promote and maintain mutual Lawyers,Colonial Peoples. the United Kingdom, 21 November respect and comity between counsel 3. See, for example, Hogarth, William The 2011 and the courts. Five Orders of Perriwigs as they were Worn at the Late Coronation Measured 15. Supreme Court of New South Wales, The memorandum stated that, Architectonically 1761. Court Attire Policy, issued by JJ accordingly, at its meeting on 21 April Spigelman AC, Chief Justice of NSW 4. Ede & Ravenscroft of London, robe on 20 September 2007. 2016, the Bar Council had resolved that makers and tailors since 1689, www. members of the Bar appearing before legal.edeandravenscroft.co.uk. 16. Section 3.2.7(1). the Supreme Court should follow 5. London Journal of Arts and Sciences, 17. Section 3.2.7(2). 1822, Vol 4, p 120. the practice of the presiding judge 18. Applied in Victoria by the Legal with respect to robing, including the 6. Wigs and Robes: A lasting tradition, Profession Uniform Law Application wearing of wigs. The resolution of the Victorian Law Foundation, 2010, p 8. Act 2014 (Vic) Bar Council allowed for an “exception” 7. Dr John Emerson, Law School, 19. Russell v Russell (supra) Stephen J at in cases where the judge would not University of Adelaide “Why are you 531-532; Mason J at 536; and Jacobs wearing a wig?”, November 2004, ﬁrst at 555. be wearing a wig, but where leading published in the Law Society Bulletin of 20. (supra) at 531-532. counsel for each party considered that South Australia, www.courts.sa.gov.au 21. Russell v Russell (supra) per Barwick there were circumstances justifying the 8. Wigs and robes, a lasting tradition, CJ at 506 and Gibbs J at 519-520. wearing of wigs and agreed to appear Victoria Law Foundation, p 3. in wigs. The resolution noted the Bar Council’s expectation that there would be uniformity at the Bar table. ODE TO THE WIG The Common Law Bar Association interpreted the Bar Council’s Goodbye dear bonnet of horse hair, resolution to mean that it was a matter That famous counsel used to wear for leading counsel to decide whether With robe of black and jabot lace to wear wigs in a particular matter While arguing their client’s case. (as they have been doing for some So, change of costume will advance, years in common law matters in the Perhaps designed, perhaps by chance, County Court). That approach was ‘Till courts convene, a case to hear, not tolerated by at least one Justice of With counsel in the latest gear, the Court who would not accept the Disputes o’er crimes and civil wrongs, appearances of counsel wearing wigs. The Bar in T shirts and in thongs. On 26 May 2016, the Principal Judge of the Common Law Division resolved Peter Heerey the uncertainty when he published a notice informing the profession that

40 VBN VBN 41 news and views 42 VBN news and views

Offshore processing

ADAM McBETH

our years after the Howard Government’s Paciﬁc Solution was dismantled, the Gillard Government responded to a growth in the number of boats of people seeking asylum in Australia by reintroducing the policy of offshore processing in 2012.

Offshore detention as a deterrent FImmigration detention is ostensibly a form of administrative detention. It is permissible for the executive arm of government to detain a person for so long as is reasonably necessary to facilitate the processing of his or her visa application or deportation.1 If the detention crossed the line to become punitive in nature, it would violate the separation of powers, given that detention as a form of punishment is a judicial function that may only be exercised by a court. The premise for the introduction of offshore processing is that it will act as a deterrent to prevent people trying to reach Australia by boat. The promise that no person arriving by boat without a visa will ever be resettled in Australia, even if determined to be a genuine refugee, is a key part of the strategy. It has been promoted with Australian government advertising in Asia and the Middle East under the slogan: “No Way – you will not make Australia home”. Although not explicitly part of the policy, it seems that resettlement in any developed country is also out of the question. The Turnbull Government has recently rejected offers from New Zealand to resettle 150 refugees from the offshore processing centres, on the ground that “settlement in a country like New Zealand would be used by the people smugglers as a marketing opportunity”.2 The expectation of harsh conditions in the detention centres is another crucial part of the deterrent strategy.

Legal framework The Commonwealth entered into a Memorandum of Understanding with Nauru on 29 August 20123 to facilitate the transfer of asylum seekers from Australia to Nauru, where they were to be held while their refugee status was assessed. An equivalent MOU was signed with Papua New Guinea on 8 September 2012.4 Any person who had “travelled irregularly by sea to Australia” or had been intercepted at sea by Australian authorities while trying to do so, illustration by guy shield and who had undergone health, security and identity checks in Australia, and who was authorised to be transferred under Australian law, was liable to be transferred to Nauru or Manus Island. Asylum seekers were ﬁrst transferred to Nauru in September 2012 and to Manus Island in November 2012 under these arrangements. In both cases, the arrangement has been designed to vest formal legal authority in the host governments, while the practical arrangements

42 VBN VBN 43 Both the High Court of Australia and the Supreme is very much to the point that the Court of Papua New Guinea have had to consider the Commonwealth could not compel or authorise Nauru to make or enforce news and views news question of control over certain aspects of the centres. the laws which required that the plaintiff be detained.”8 were the responsibility of Australia. section 198AHA of the Migration Bell and Gaegler JJ both found that For instance, the Manus Island Act. That section applies in the the Commonwealth had detained centre is established as a “relocation context of a regional processing the plaintiff, but joined the majority centre” by instrument published arrangement and purports to give the in finding that the detention was by the PNG Minister for Foreign Commonwealth power to: authorised by section 198AHA. Affairs and Immigration, pursuant (a) take, or cause to be taken, In dissent, Gordon J also found that to the PNG Immigration Act, any action in relation to the the Commonwealth had detained and is formally overseen by an arrangement or the regional the plaintiff on Nauru. Her Honour Administrator appointed by the processing functions of the country; emphasised the contract between PNG Minister.5 A joint committee (b) make payments, or cause the Commonwealth and the private co-chaired by representatives of the payments to be made, in relation contractor then providing “garrison Australian and PNG Immigration to the arrangement or the regional services” at the centre, Transfield. Departments is vested with processing functions of the Gordon J found that “Transfield owed “responsibility for the oversight of country; obligations to the Commonwealth practical arrangements required (c) do anything else that is incidental and the Commonwealth took the to implement” the arrangement.6 or conducive to the taking of benefit of those obligations. … [T] However, the contractors who run such action or the making of such he Commonwealth, by contract, the centre do so under contracts payments. procured and obliged Transfield to with the Commonwealth. Equivalent The constitutionality of that detain the Plaintiff.”9 arrangements apply to Nauru. section – and thus the power to The contracts include provision of transfer people to Nauru under the Manus Island: Namah v Pato “garrison services”, which include arrangements purportedly authorised In Namah v Pato & Ors [2016] PGSC responsibility for accommodation, by that section – was challenged 13, the Supreme Court of Papua food and beverage, hygiene, safety in Plaintiff M68/2015 v Minister for New Guinea held that the PNG and security, and general daily needs Border Protection & Ors.7 law authorising the detention on of the detainees. At various times, In a 6:1 decision (Gordon J Manus Island of asylum seekers those services have been provided by dissenting), the High Court held that transferred from Australia was G4S, Wilson Security and Transfield section 198AHA was a valid exercise unconstitutional. Unlike Australia – (now known as Broadspectrum). of the aliens power in section 51(xix) which remains the only developed All funding for the construction of the Constitution, and in turn that country without constitutional or and maintenance of the centre, as it authorised the transfer of asylum comprehensive statutory protection well as the costs of the transfer, seekers to Nauru, the funding of the of human rights – the PNG ongoing detention, living costs, health centre, and the rest of the offshore constitution contains a number of and related costs within the centre, processing scheme under the MOU. human rights guarantees. Among is provided by the Commonwealth, Central to M68 was the question those is the right in section 42 of which also meets the costs of of whether the plaintiff was in the constitution to “liberty of the the refugee status determination fact detained in Nauru. Shortly person”. process. Given this mixed model of before the High Court hearing, the That section provides that “no formal and practical control over the Nauruan government gazetted its person shall be deprived of his management of the centres, both intention to implement “open centre personal liberty” except in nine the High Court of Australia and the arrangements”, which would allow enumerated circumstances, relating Supreme Court of Papua New Guinea the people residing at the centre to primarily to criminal legal process have had to consider the question of leave the centre and move freely (arrest, remand, sentence of control over certain aspects of the about Nauru for the first time. imprisonment), as well as involuntary centres. Those cases are considered As to the period before the “open mental health treatment and below. centre arrangements” commenced, quarantine. In a migration context, the majority held that it was the section 42(1)(g) provides that a Nauru: M68 government of Nauru alone—not person may be deprived of personal To give effect to the offshore the Commonwealth or its agents— liberty “for the purpose of preventing processing arrangement with Nauru, that detained the plaintiff. French the unlawful entry of a person the Australian parliament enacted CJ, Kiefel and Nettle JJ said, “… it into Papua New Guinea, or for the

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purpose of effecting the expulsion, were detained by the joint efforts detention under international law; extradition or other lawful removal of of Australia and PNG. In the lead did not provide a fair, efficient and a person from Papua New Guinea”. judgment, Kandakasi J found: “This expeditious system for assessing After the Namah proceeding is confirmed by the very fact of their refugee claims; and did not provide commenced in 2014, the PNG forceful transfer and continued safe and human conditions of parliament passed an amendment detention on MIPC [Manus Island treatment in detention. to the constitution, inserting a new Processing Centre] by the PNG and The UNHCR also reported sub-paragraph (ga) into section 42(1). Australian governments. It was the significant health concerns, some of The new paragraph purported to joint efforts of the Australian and which derived from very cramped permit the deprivation of liberty “for PNG governments that has seen the conditions in extreme heat and the purposes of holding a foreign asylum seekers brought into PNG and humidity, while others related to a national under arrangements made kept at the MIPC against their will.”10 lack of hygiene. The death of Hamid by Papua New Guinea with another The PNG Supreme Court did not Khazaei in 2014 from a bacterial country or with an international engage in the detailed analysis of the infection, following a long delay in organisation that the Minister Australian High Court in M68 on the evacuation for medical treatment responsible for immigration matters, question of which entity or entities after sustaining a cut leg on Manus in his absolute discretion, approves”. were detaining the detainees. But Island, has been well publicised.14 The PNG constitution can be its finding is potentially significant Mental health problems in relation amended by an Act of parliament, in terms of the Commonwealth’s to people detained for lengthy provided that certain manner and responsibility towards people periods with no certainty as to when form requirements are met, such as detained abroad as part of its or how their situation might be approval by two-thirds of parliament. offshore processing programme. resolved, particularly when many Since the attempt to amend the In contrast, the Supreme Court are fleeing trauma abroad, have constitution was itself a law that of Nauru dealt very differently long been acknowledged. Indeed, purported to restrict human rights set with a similar application to that Australia was held by the United out in the constitution, the Supreme in Namah. In DWN042 v Republic Nations Human Rights Committee as Court held that the provision relating of Nauru11 – the Supreme Court of long ago as 2002 to have breached its to laws restricting rights was relevant. Nauru’s first decision relating to the international obligations in relation That provision includes a requirement offshore processing regime – the to the psychological damage caused that the restrictive law be “reasonably appellant argued that detention to people in prolonged immigration justifiable in a democratic society on Nauru was contrary to Nauru’s detention.15 having a proper respect for the rights constitutional protection of liberty, There have further been serious and dignity of mankind”. except, relevantly, “for the purpose concerns about the safety of The Supreme Court held that the of preventing his unlawful entry detainees at both locations. The Minister had failed to discharge into Nauru, or for the purpose of killing of Reza Berati when a group that burden, with the result that the effecting his expulsion, extradition of PNG locals, police and security amendment was unconstitutional. As or other lawful removal from Nauru”. guards stormed the compound at a consequence, the ongoing detention That application was struck out, Manus Island has been the most of asylum seekers and those on the basis that the Court had prominent example. In Nauru, the already assessed to be refugees was no jurisdiction to consider the Moss Report, commissioned by unconstitutional and unlawful. constitutional question in the context former Immigration Minister Scott Shortly after the Supreme Court’s of a refugee appeal, and that it was Morrison, focused on claims of sexual ruling, the processing centre at frivolous and vexatious.12 assault of detainees, including by Manus Island was opened, allowing staff employed by the contract service those residing there to leave if they Treatment in detention providers. Several such incidents wished. However, given that the The elephant in the room in were substantiated by the report, centre is in the middle of a naval relation to offshore detention is the while the review also concluded “that base, the detainees are not free to standard of treatment of the people there is a level of under-reporting leave on their own. Buses have been held in those locations. The United by transferees of sexual and other chartered to transfer people between Nations High Commissioner for physical assault”.16 the centre and the town, although as Refugees concluded in a November Accommodation at the processing a practical reality, it is still necessary 2013 report that the conditions on centre in Nauru is in the form to reside at the processing centre. Manus Island at that time did not of “vinyl 10 x 12 metre canvas One potentially significant finding comply with international law.13 marquees”, which can accommodate of the PNG Supreme Court in Namah Specifically, it found that the situation between 22 and 40 people “in is that the Manus Island detainees constituted arbitrary and mandatory dormitory-style configuration with

44 VBN VBN 45 The elephant in the room in relation to offshore 2 Helen Davidson, ‘Turnbull rejects New Zealand offer to take 150 refugees from detention is the standard of treatment of the people detention’, The Guardian Australia, 29 April 2016, htp://www.theguardian.com/ news and views news held in those locations. australia-news/2016/apr/29/turnbull-rejects- new-zealand-ofer-to-take-150-refugees-from- detenton (emphasis added). bunk beds”.17 At the time of the of care on these facts, Bromberg J 3 Memorandum of Understanding Moss Report, air conditioning was found it pertinent that the applicant, between the Republic of Nauru and the provided only for marquees with as a person who had been determined Commonwealth of Australia, relating children under 4 years of age. Tent- to be a refugee and was then living to the Transfer to and Assessment of Persons in Nauru, and Related Issues, style accommodation, with no fans outside the detention centre, “was signed 29 August 2012. That MOU was or air conditioning and very little dependent on the Commonwealth for later superseded by an MOU with the privacy, remains in place on Nauru her very existence,” since she had no same title signed on 3 August 2013. The 2013 Nauru MOU remains in force. for those who have not yet been means of survival independent of the 4 Memorandum of Understanding between determined to be refugees. Those Commonwealth and its contracted the Government of the Independent who have been determined refugees service providers.19 State of Papua New Guinea and the for the most part have access to The issue arose because the Government of Australia, relating to the Transfer and Assessment of Persons solid walled housing, often air Minister’s proposed remedy of in Papua New Guinea, and Related conditioned. On Manus Island, tent transferring the plaintiff to Port Issues, signed 8 September 2012. That accommodation was replaced with Moresby for an abortion was MOU was later superseded by the Memorandum of Understanding between solid walled buildings in 2013, though potentially unlawful in PNG and the Government of the Independent the conditions at the centre after the potentially unsafe, particularly State of Papua New Guinea and the changes were still described by the in light of the plaintiff’s medical Government of Australia, relating to the Transfer to, and Assessment and UNHCR as “harsh”. complications arising from her Settlement in, Papua New Guinea of epilepsy and from what Bromberg Certain Persons, and Related Issues, Future legal developments: a J described as “caused by a cultural signed 6 August 2013. The 2013 PNG MOU remains in force. duty of care? practice to which she was subjected 5 Immigration Act 1978 (PNG), ss as a young girl.” His Honour found There is at least one case afoot in the 15B-15D. that the Minister owed the plaintiff Supreme Court of Victoria—Kamasaee 6 2013 PNG MOU [23]. a duty of care to procure a safe and v Commonwealth & Ors—alleging 7 [2016] HCA 1. lawful abortion for the plaintiff and that the Commonwealth and/or its 8 M68, [34] (French CJ, Kiefel & Nettle JJ). granted an injunction to restrain the contractors were negligent in their 9 M68, [323] (Gordon J). Minister from failing to discharge treatment of detainees on Manus 10 Namah v Pato & Ors [2016] PGSC 13, that duty.20 Interestingly, because the [39]. Island. The existence and scope of a time to discharge the duty had not yet 11 Appeal No 12/2015, 20 May 2016. duty of care in those circumstances For readers’ interest, members of the arrived, the Court ordered a relatively will be crucial to the outcome of the Victorian Bar appeared for both sides: rare quia timet injunction to restrain Matthew Albert for the appellant and case. Following, the Namah decision, a future breach of duty, on the ground Angel Aleksov for the Republic of Nauru. Mr Kamassaee may seek to amend that there was a reasonable prospect 12 DWN042 v Republic of Nauru, [20]-[22] his claim to plead damages for false and [26]. that the Minister would breach his imprisonment at the Manus Island 13 UNHCR, Monitoring visit to Manus duty, potentially resulting in harm of Centre. PNG lawyer Ben Lomai has Island, Papua New Guinea, 23 to 25 a severe magnitude to the plaintiff. October 2013 (26 November 2013), htp:// also launched litigation in PNG on In circumstances where the www.refworld.org/docid/5294aa8b0.html behalf of a number of asylum seekers delineation of responsibility for 14 See ABC 4 Corners: Bad Blood, aired 26 on Manus Island. April 2016, htp://www.abc.net.au/4corners/ those intercepted, transferred On a much narrower set of facts, stories/2016/04/25/4447627.htm to and accommodated (if not Bromberg J recently held in Plaintiff 15 C v Australia, Human Rights detained) at offshore processing Committee, Communication No S99/2016 v Minister for Immigration locations is extremely hazy as 900/1999, UN Document No CCPR/ and Border Protection that the Minister C/76/D/900/1999 (28 October 2002), between the Commonwealth, the owed a duty of care to a refugee in [8.4]. host governments and the private Nauru. The plaintiff was raped while 16 Philip Moss, Review into recent contractors, there are sure to be allegations relating to conditions and she was unconscious from an epileptic many more cases in the near future circumstances at the Regional Processing ﬁt and became pregnant. His Honour Centre in Nauru, (Moss Report), 6 seeking to test the boundaries of held that the Minister had assumed February 2015, [16]. responsibility for these lives. responsibility for the plaintiff when 17 Moss Report, [2.9]. he took steps to procure a safe and 1 Chu Kheng Lim v Minister for 18 [2016] FCA 483, [243]. Immigration, Local Government and 18 19 [2016] FCA 483, [252]. lawful abortion for her. While it was Ethnic Affairs (1992) 176 CLR 1. not necessary to ﬁnd a broader duty 20 S99, orders 1 and 2.

46 VBN AUSTRALIAN BAR ASSOCIATION & VICTORIAN BAR 2016 ConferenCe

THE NATIONAL

PROFESSION IN 27OCTOBER A GLOBAL LEGAL MARKET 28 MELBOURNE CRICKET GROUND

THE AUSTRALIAN BAR ASSOCIATION AND THE VICTORIAN BAR have joined forces to deliver a conference which brings together the best of the legal profession in this Country.

PROMINENT SPEAKERS FROM ALL CORNERS OF THE LAW will discuss the latest state of play in the legal profession; the big issues, market trends, political inﬂuences on the law and global trends in dispute resolution.

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Vic bar ABA conference ad full page.indd 1 7/15/2016 10:19:10 AM International news and views news family law number in the spotlight of well- publicised events in DR ANNA PARKER recent years have brought widespread public attention to the issue of international family law disputes. Most recently, a Afailed child recovery attempt in Lebanon resulted in a mother, child recovery agents, and members of the 60 Minutes television crew being arrested and detained in a Beirut prison. In 2012 four Italian girls were returned to Italy against their will and over the strong objections of their Australian mother. The case of baby Gammy, a child conceived through an international surrogacy arrangement and born in Thailand in December 2013 with Down syndrome, also attracted headlines. As technology advances, the world grows more connected and countries such as Australia become more multicultural; family law matters with international aspects are becoming increasingly common. In some such cases, there is little that can be done under Australian family law to protect the interests of Australian parties and children. In other cases, the law offers various means of attaining just outcomes across international borders. This article explores the problems that can arise in international family law matters, the solutions offered by Australian and international law, and the limits to those solutions.

International Child Abduction and Retention As technology aids the development of international relationships, global business provides overseas employment opportunities, and international travel becomes more readily accessible, children are increasingly born into families with

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An An 8 60 60 VBN 60 60 as is contempt arising arising contempt is as 7 crew who had travelled travelled had who crew incident found herself. In In herself. found incident crew, the mother was required required was mother the crew, A similar plight was faced by by faced was plight similar A In countries in which Australian Australian which in countries In child from Australia where there are are there where Australia from child proceedings or place in orders court by punishable offence an is pending imprisonment, from non-compliance with an order order an with non-compliance from be returned. requiring that a child were arrested and detained. In return return In detained. and arrested were for her release and that of the Minutes children the of care the relinquish to return and Lebanon in father their to without them. Australia to Jacqueline Gillespie (now in abducted were children Pascarl),whose foreign countries may end up with with up end may countries foreign legal obtaining of means realistic no in situation the is This remedies. in the which the mother involved Minutes who children, young two the case, that Australia, mother in with their lived their with Lebanon to travelled had she that alleged mother The father. travelling them to consented had father the that and holiday a for there Lebanon them. return to failed had Hague the to signatory a not is rights mother’s the and Convention, system legal Lebanese the within of result a As limited. extremely were which in circumstances desperate the child engaged she herself, found she children her take to agents recovery a now is what In father. their from the circumstances, of set well-known the mother, the and failed, operation the of members and agents, recovery 60 Minutes and operation the film to Lebanon to funded it, who are alleged to have Australian court may also make ordersabducting the of rights the restricting return children’s the pending party party the preventing by example, (for Such Australia). from departing from limited of however, are, measures and is party abducting the if utility Australia. remains outside recognised non- court orders are not or rights limited have often citizens some In recourse. legal for options limitations dictates gender cases, Parents options. and rights legal on to abducted are children whose The The 4 (Cth) (Cth) Following the Following 6 The children’s maternal children’s The 5 Family Law Act 1975 The girls had been raised in Italy girls The Countries that are not signatories signatories not are that Countries Convention. The mother opposed The Convention. Convention Hague the father’s unsuccessful, but was application, made by and a return order was Australia. Court of the Family forcible removal from Australia by by Australia from removal forcible be to Police Federal Australian the father their where Italy, to returned widely and filmed was resided, to led distress visible Their broadcast. significant public outcry. Australia to and had been brought mother in 2010, Australian their by holiday, purportedly for a month-long girls’ The but had not returned. for father brought an application to the Hague their return pursuant been brought to Australia. The case case The Australia. to brought been whose sisters Italian four involved (‘FLA’) can take measures such as as such measures take can (‘FLA’) abducting the on penalties imposing a of removal unauthorised party: widespread public criticism. under are Convention Hague the to abducted return to obligation no most in and Australia, to children court Australian countries, such cannot and recognised not are orders Where enforced. or registered be a to taken and abducted is child a to signatory a not is that country Australian Convention, Hague the under jurisdiction exercising courts the dismissal of the first appeal, the dismissal of the first appeal, into mother and the children went the which to extent limited The hiding. distress and wishes strong children’s mother their leave to required being at course the in account into taken were circumstances in proceedings, the of child the of interests best the where consideration paramount the not is Hague the to related proceedings in of subject the was Convention, mother appealed, and the Full Court mother appealed, Court dismissed her of the Family appeal. was also dismissed. was aunt, as their litigation guardian, as their litigation guardian, aunt, arguing appealed to the High Court, been that the children ought to have heard and had not been afforded appeal That procedural fairness.

1 3 The exceptions to this general exceptions The 2 Even where each of the countries countries the of each where Even The ease with which an abducted ease with which The Subject to certain exceptions, if an Subject to certain exceptions, time involving children who had had who children involving time order is made. So much was made made was much So made. is order publicised highly another in clear this 2012, in case abduction child Hague Convention, there is certainly certainly is there Convention, Hague a of return easy an of guarantee no habitual of country her or his to child return a where even residence, involved in an international child child international an in involved the to signatory a is dispute abduction but unlike most child-related it is not the paramount proceedings, consideration. to human rights or fundamental best interests of the The freedoms. consideration, child is a relevant place the child in an intolerable of the child and the return situation; being contrary to principles relating of the party seeking the return order; of the party seeking the return order; the child risk that the return of grave him or her to physical expose would or psychological harm or otherwise rule include consent or acquiescence to the Hague Convention on the to the Hague Convention Aspects of International Child Civil Convention’). Abduction (‘Hague affected by a number of factors, most most a number of factors, affected by to whether the country significantly, is a signatory which a child is taken common. common. from another child can be recovered is Australia to country and returned ties to multiple countries. As a result, As a result, countries. ties to multiple and child abduction international are becoming increasingly retention overseas, a return order must be a overseas, made. application is filed within one year of application is filed within one year or retention of the child the removal should be returned to that country pending determination of such a dispute. the most appropriate forum for the determination of a dispute regarding a child is the country of the child’s the child and habitual residence, seek the return of a child to his or her country of habitual residence. is that basis of the Convention The The Hague Convention provides a provides Convention Hague The a parent or other which process by can ‘rights of custody’ person with In countries in which Australian court orders are not to have them recorded on a child’s recognised non-citizens often have limited rights or birth certificate can vary significantly from country to country. Visa and news and views news options for legal recourse. immigration concerns exist, both for 1992 and taken to Malaysia by their infant twin daughters, who had been intended parents travelling overseas father, who was a Malaysian prince. conceived through an international to participate in such arrangements Malaysia is not a Hague Convention surrogacy arrangement, shone further and for the children born of surrogacy country, and Ms Gillespie had limited light on this vexed issue. arrangements being brought into legal options available to her. She Australian laws relating to Australia. On return to Australia, was not reunited with her children surrogacy are complex. Each of the the intended parents must contend until after they reached adulthood. states and territories (except the with processes for obtaining legal Circumstances such as these can lead Northern Territory) has legislated in recognition of their relationship with to desperate and at times dangerous relation to surrogacy arrangements the child, such as obtaining orders measures being taken outside the and the legal parentage of children relating to the child under the FLA. legal system, such as the recruitment born of such arrangements.10 The In many cases, the combined effect of of child recovery agents. FLA also provides for recognition of Victorian, Federal and foreign laws can As a result of these difficulties, it is orders relating to parentage of these facilitate the successful engagement prudent to be cautious about allowing children.11 Commercial surrogacy, of Victorian couples in international children to undertake international in which the surrogate receives a surrogacy arrangements, but this is by travel where there is a risk of payment or reward, is prohibited no means a straightforward process. abduction or retention. Courts with in all Australian jurisdictions with jurisdiction under the FLA can take surrogacy legislation, which has Other International Disputes measures to prevent children being the effect of greatly enhancing the Other important but less publicised removed from Australia, including demand for international surrogacy aspects of family law practice involving granting injunctions, placing the arrangements amongst Australian international issues include: children’s names on the Watch List residents, particularly for male same- » Property settlement proceedings maintained by the Australian Federal sex couples and women struggling brought in Australian courts Police, which prevents their removal with fertility. The legislation in force exercising jurisdiction under via authorised points of departure, in the Australian Capital Territory, the FLA involving assets located and making provision for safekeeping New South Wales and Queensland overseas or transactions involving of children’s passports. has the effect of prohibiting residents foreign nations; of those jurisdictions from engaging in » Spousal maintenance, child International Surrogacy surrogacy overseas.12 There is no such maintenance and child support The case of baby Gammy, born as a prohibition in Victoria. disputes where one party resides result of an international commercial International commercial surrogacy outside Australia; surrogacy arrangement, has also involves significant ethical concerns, » International parenting disputes, brought significant public attention to including the risks of exploitation including cases involving care the complexities of the international of surrogates, commodification of arrangements for children aspects of family law in recent years . children, and human trafficking, whose parents live in different Media reports shortly after Gammy’s and concerns regarding children’s jurisdictions and cases involving birth suggested that his intended rights to know and experience their proposals for the international parents had returned to Australia with cultural and biological identities. It also relocation of children; his twin sister, abandoning Gammy in carries risks of complications, such as » Forum disputes; Thailand. This sparked widespread the surrogate’s refusal to relinquish » Matters relating to recognition, outrage. There was a further public the child and the consequences registration and enforcement of outcry following subsequent reports if the child is born with a serious foreign orders and agreements in that Gammy’s intended father health condition, both of which were Australia; had been convicted of child sex reported to feature in the Gammy » Cases involving enforcement of offences. The claim that the intended case. International surrogacy is also Australian orders and agreements parents had abandoned Gammy was fraught with complex legal issues, overseas; and ultimately found not to be accurate including varying rules in different » Disputes over the validity of foreign when the matter proceeded before the countries as to who may undertake marriages and divorces. Family Court of Western Australia. 9 surrogacy arrangements and the Australia is a signatory to a number The recent case of a Victorian man enforceability of such arrangements. of conventions and agreements, sentenced to 22 years in prison for The degree of recognition of intended and has also enacted a number sexual abuse, including abuse of his parents as legal parents and the ability

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5 Garning & Director-General, Department of domestic laws, to facilitate only a small subset of the many of Communities (Child Safety Services) international cooperation in relation and varied aspects of international [2012] FamCAFC 35. to a range of family law matters, family law practice. Australian 6 RCB as litigation guardian of EKV, CEV, including intercountry registration and international law provide CIV and LRV v The Honourable Justice and enforcement of orders and many avenues for protecting the Colin James Forrest [2012] HCA 47. agreements.13 The extent to which rights and interests of parties and 7 Family Law Act 1975 (Cth) ss 65Y, 65Z. cooperation with foreign jurisdictions children in multijurisdictional family 8 Family Law Act 1975 (Cth) s 112AP. can be obtained in international law disputes. There can also be 9 Farnell & Anor and Chanbua [2016] family law matters depends greatly on significant limitations on the extent FCWA 17. whether those jurisdictions are parties to which legal remedies can be found 10 Parentage Act 2004 (ACT); Surrogacy to agreements with Australia covering in family law cases involving two Act 2010 (NSW); Surrogacy Act 2010 the subject matter of the dispute. or more jurisdictions. The extent (Qld); Family Relationships Act 1975 (SA), Births Deaths and Marriages to which the law can aid parties Registration Act 1996 (SA), Assisted Conclusion involved in international family law Reproductive Treatment Act 1988 (SA); Public attention has been drawn issues greatly depends on the issues Assisted Reproductive Treatment Act 2008 (Vic), Status of Children Act 1974 to the varied, complex and in involved, and the jurisdiction to (Vic); Surrogacy Act 2008 (WA). some cases extreme and tragic which the issue relates. 11 Family Law Act 1975 (Cth) s 60HB. issues facing parties and children 1 The Hague Convention has been involved in international family law incorporated into Australian law by the 12 Parentage Act 2004 (ACT) s 45; Surrogacy Act 2010 (NSW) s 11; disputes. In particular, the issues of Family Law (Child Abduction Convention) Regulations 1986. Surrogacy Act 2010 (Qld) s 54. international child abduction and 13 For example, the Hague Convention international surrogacy have been 2 Family Law (Child Abduction Convention) Regulations 1986, reg 16. on Jurisdiction, Applicable Law, the subject of widespread public Recognition, Enforcement and interest and debate following high 3 De L v Director General, NSW Cooperation in Respect of Parental Department of Community Services Responsibility and Measures for the profile cases in which attempts to (1996) 187 CLR 640. Protection of Children; Child Support overcome international legal barriers (Registration and Collection) (Overseas- 4 Department of Communities (Child Related Maintenance Obligations) have led to disastrous results. Safety Services) & Garning [2011] Regulations 2000 (Cth); Family Law Act FamCA 485. Such high profile cases represent 1975 ss 70G-70N, 89, Part XIIIAA.

Our 3 principal lawyers, Wendy Jenkins, Paul Ross and Marita Bajinskis are Accredited Family Law Specialists. We provide expert legal advice regarding:

• Marriage and defacto relationships • Separation • Division of assets • Care of children • Child support and maintenance • Financial Agreements (pre-nuptial or cohabitation agreements) • International family law matters

Level 3, 224 Queen Street, Melbourne VIC 3000 T 03 8672 5222 www.blackwoodfamilylawyers.com.au Liability limited by a scheme approved under Professional Standards Legislation

50 VBN VBN 51 20131101 Vic Bar News Blackwood Family Lawyers.indd 1 11/1/2013 11:53:53 AM War and peace: Balancing the news and views news forensic needs of unhappy families

CELIA CONLAN

“All happy families are alike; each unhappy family is unhappy in may be appealed straight to the appellate court. its own way.” b) The Hear and Report Option – A referee hears the evidence and refers the matter to a judge for decision. any over the decades have This option is rarely used, which is not surprising. Given pondered Tolstoy’s famous the quality of the evidence, it would be very difficult for a quote; most particularly judge to make a decision based largely on transcript from family lawyers, I suspect. It these trials, for reasons explored below. certainly provided inspiration In Australia the introduction of greater access to to me on a recent trip to New alternative family dispute resolution pathways in the York. I set out to investigate whether the substance of wake of the significant amendments in 2006 to the our Antipodean family law conflicts are replicated by our Family Law Act 1975 resulted in mediators playing a commonM law neighbours in the “land of the brave”. larger role in family law conflicts. The Australian system Ultimately I did not succeed in investigating this also provides for Family Consultants to undertake a matter to any significant degree because in reality, such preliminary assessment of a family and report back to a task would require a lengthy period of observation and a judge with their observations and recommendations. analysis rather than an afternoon of diversion. But to In this way, we have effectively outsourced a significant borrow very liberally from Tolstoy, I did form the more aspect of the role undertaken by the referee in the New superficial view that each unhappy Family Court is York system. unhappy in its own way. Our family law courts endeavour to provide litigants It was a straightforward endeavour to secure a window with expeditious pathways to the resolution of conflict into the litigious realm of family breakdowns in the for matters that are not otherwise suitable for, or able state of New York. The Family Court at Kings County to be resolved through, alternative dispute resolution. (Brooklyn) is one of the busiest courts in the state, so I A matter in the Federal Circuit Court, at least in theory, made contact via the court website. One week before my could resolve with as little as two court events: an interim trip, I received an email advising me to attend a contested hearing and a final hearing. The obligations for disclosure custody hearing on the following Monday at 2.30pm in and the requirements for the filing of evidence in proper Part 44 presided over by a referee. form such as affidavits and financial statements minimise Referees play a similar role to Family Court registrars the risks of ambushed applications and matters derailing of old in that they attend to more rudimentary, fact-based in a confusion of irrelevance. But these obligations can disputes of families in conflict. They sit in the Family also add significantly to the delays and costs associated Law Court in New York and hear matters concerning with litigating even a small conflict. Further, it is no secret child protection, juvenile crime and custody. Referees that the Family Division of the Federal Circuit Court are administratively appointed. Divorce judges sit in the is over-burdened and under-resourced. Even with the Supreme Court and are appointed through a process most efficient forensic preparation, matters can become involving three nominated candidates from the mayoral paralysed in the inevitable gridlock of too many requiring office and three from the New York Bar. The judges have the intervention of too few. power to determine property disputes, divorces and Back in New York, the courtroom was set out associated custody disputes. The two courts are both completely as I had anticipated except that I could see state-based but in practice function quite independently through an open door to an office space. The Referee’s from each other. Associate moved between the courtroom and the office, Parties in dispute about only parenting issues can often leaving the door ajar, despite the trial being in utilise the following options: session. At the back of the court where I was seated I a) The Hear and Determine Option – A referee hears could clearly hear phones ringing from the office and the parenting matter and hands down judgment. This usual office goings on, including the associate chatting is the most popular option with advantages of shorter to staff just beyond view. At one stage in the trial when waiting times, less formality and fewer costs. Decisions all participants including the Referee, the lawyers,

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VBN being the subject of uncertainty and a far and this was litigation for years including child, greater risk to any to Referee explained The an infant. me that the allocation of a child’s time between his or her parents may the capacity and be determined by resources of each parent and which the best parent is likely to provide landscape in New York and the and York landscape in New incredulous somewhat Referee was such regimes could about how Australian between possibly work I gathered her parents in conflict. to order general approach was to the primary custody physical carer with the other parent spending alternate weekends (one or two nights) with the children and some Referee told The time in the holidays. me she had no hesitation in ordering providing time for infants, overnight She was the parent had capacity. requirement to of any dismissive gradually for introduce overnight that children and observed young such an approach could see a child I was astonished at the casual nature of the the of nature casual the at astonished was I proceedings. They appeared to lack any formality at all. formality at all. appeared to lack any They proceedings. primary carer in the absence of Equal time regimes agreement. do not form part of the family law experimenting with, and apparently and apparently with, experimenting a concept of ultimately abandoning, “spheres of parental responsibility” being divided between feuding A may parent example, For parents. responsibility for education and have responsibility have parent B may Referee had The for medical issues. and no interest in this approach, apparently under no obligation was preferred She generally to adopt it. to the to order joint legal custody parents but with a default to the custody, and how best to manage it and how custody, Australia, In in high conflict matters. this concept has traditionally been referred to as guardianship and in involvement concerns a parent’s decisions relating to the long term welfare and development care, appears to be a There of a child. significant degree of discretion York about this matter in New judges recently state with divorce We then commenced the first We This lack of formality in many lack of formality in many This I was astonished at the casual I was parental responsibility, or joint legal parental responsibility, of two enjoyable and interesting enjoyable of two discussed shared We exchanges. from them and wondered aloud at from them and wondered but she did not might be, where they seem unduly concerned about their absence. matter because it seemed there little genuinely in dispute. very was Referee had heard nothing The and she had suggested last time get together in lawyers that the two this the interim period to resolve adjournment to consider some of Referee informed The the evidence. me that adjournments are unusual to be seen. The matter was part matter was The to be seen. heard from three months prior requested an lawyer when mother’s me in conversation. The Referee The me in conversation. informed me the trial should have recommenced at 2.30pm but the and parties were nowhere lawyers Referee was already seated at the already Referee was She looked up introduced bench. herself and immediately engaged ways did enhance the experience, did enhance the experience, ways I entered the When at least for me. the courtroom at 2.30pm sharp, had just occurred - a most peculiar moment. merely by the Referee but also by by the Referee but also merely by Associate and the witness in the her bewildered all exchanged We stand. no one really certain what glances, briefly bowed to the Referee only to briefly bowed politely returned with the bow have not some confusion and hesitation, At one stage, I had such an irritated At one stage, to leave throat that I felt obliged I Prior to exiting, the courtroom. nature of the proceedings. They They nature of the proceedings. at all. formality appeared to lack any Referee as she attempted to yell over over to yell Referee as she attempted of was a ruling, the husband to make but me. no interest to anyone from the office with mild interest with mild interest from the office His went back to work. and then through a unsolicited appearance the left of the door immediately to the witness and the parties were and the parties were the witness a event), at once (a common speaking the door his head around man poked VBN

52 The witnesses were effectively left to their own father each alternate weekend and devices in determining what the court should know that the father’s “friend” of nearly four years provided accommodation, news and views news and this resulted in some rather impressive, if transportation and care to the father irrelevant, speech making. and child. The father’s “friend” testified that she was not the father’s environment to maximise the child’s ringing for her. The Referee sighed “friend” and he did not live with capacity to thrive. She provided an and reminded her that the lawyers her. The alleged “friend” later example of one parent being better were also supposed to speak in the conceded she regularly bathed educated and living in a better area interim to see if the matter could be the child before she left for work particularly in terms of access to good resolved. The mother’s lawyer stated at 7am and that she purchased schools. But, like Australia, the best with certainty that no discussion had most of the child’s clothing. interests of a child will be determined taken place but took the opportunity The evidence tumbled out in a by a global assessment of all their then and there to start speaking mess of partially finished sentences particular circumstances. to father’s lawyer about what the and contradictions. The parties At approximately 2.50pm, 20 mother would concede. The Referee and their lawyers interjected with minutes late, the father’s lawyer suggested they take the conversation prompts and objections and no one unapologetically strolled into court outside but the father’s lawyer appeared to have a grasp of even and directly addressed the Referee, observed that it would be quicker to a basic chronology of events. The “How much time is this set down just finish the trial and reminded the evidence-in-chief of each witness for?” She indicated to him two hours Referee he had a softball game to get was compromised by nervousness, and he replied, “I can only do one, to. I wondered what the clients made the interjection of other parties, and I have my son’s softball game at of their lawyers’ indifferent candour. the lack of coherence in questioning 4.30pm.” The Referee introduced me The trial re-commenced with the by the lawyers who both seemed and told the father’s lawyer I would lawyers and the parties all seated as confused as I was about how the be observing for the afternoon. The at the Bar table. The parties were evidence was falling. The witnesses father’s lawyer, looked me over and sworn in and the matter proceeded appeared unable to recall dates said to no one in particular, “I don’t in a standard trial format. The for any of the disputed events. The think I am happy about that.” By dispute concerned the allocation Referee valiantly attempted to corral the end of the day, I concluded his of legal and physical custody of events into some sequence by asking reluctance at having his performance a four-year-old boy between his the witnesses about whether the observed was justified. The Referee parents. The parties were not in a child was sitting, crawling or walking ignored him and continued a relationship at any stage but the at the time of an alleged event. There discussion with me about overnight child had spent overnight time each appeared to be a complete dearth time. The father crept into court and alternate weekend with his father of documentation with not so much slid into a seat at the Bar table next to on at least a semi-regular basis. The as a proof of evidence, let alone an his lawyer. parties agreed this should continue affidavit, available to assist the court The mother’s lawyer turned up at with additional time in the holidays. in clarifying the chronology of facts 2.55pm without her client, who had The father’s case also included an in dispute between the parties. The been briefly detained in security application for joint legal custody in witnesses were effectively left to for questioning. She also abruptly relation to decision-making on the their own devices in determining and unapologetically addressed the basis that the mother was negligent. what the court should know and this Referee by asking, “Where were While this issue was raised in resulted in some rather impressive, we up to?” The Referee reminded submissions, it was not pursued at all if irrelevant, speech making and the mother’s lawyer that the matter in the ensuing torture of evidence. preaching by each witness about was adjourned because she, the The father alleged at one stage their own virtues and the other mother’s lawyer, had wanted to that he had not seen the child at all witnesses’ deficits. On a positive consider some of the evidence. The since June, at his own election. It note, no one appeared particularly mother’s lawyer looked at the Referee was not clear why this was so and troubled or distressed by any of the blankly, “Did I?” The Referee, from no one asked about it. The father evidence and the atmosphere in the an excellent device that produces a testified to currently living in a courtroom could be described as typed electronic version of viva voce refuge and indicated that this was congenially combative. evidence almost instantaneously, not a proper environment for a child. At the conclusion of the evidence, read back the relevant transcript The mother later testified that the the lawyers made submissions to from the last court date. The mother’s child had been consistently seeing the Referee. I discovered at this lawyer shook her head; no bells were his father and continued to see his stage that the mother was the

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applicant and the main issue before Any benefit to the parties of a process that the Court was whether the mother dispenses with applications quickly and at minimal should have sole legal custody. The mother’s lawyer provided a succinct cost to the parties can be lost if meaningful or cogent and well-reasoned précis of why evidence is lacking. sole legal custody was appropriate, focusing on the parties’ ineffective school age, the mother wanted sole parties of a process that dispenses communication and the father’s legal custody so she could nominate with applications quickly and at historical lack of financial support of the school of her choosing and this minimal cost to the parties can be the child and lack of interest in any issue had formed the catalyst for the lost if meaningful or cogent evidence long term decisions concerning the proceedings. is lacking. The trial I observed child. The mother’s lawyer made no The Referee indicated that she highlighted this risk. On the other submissions about the child’s time reserved her judgment because she hand, while the Australian family law with the father. was likely to award sole legal custody jurisdictions through their inclusion The father’s lawyer in response to the mother, primarily because it of affidavits and other written submitted that the father should was clear that these parents barely evidence mitigate this risk, our have increased time with the child knew each other and had refrained matters can be unduly complicated because the mother was neglectful, from any meaningful communication by excessive documentation and but then added the father would for the duration of their child’s life. assessments resulting in a blow out not seek to exercise the contact The Referee suspected the father’s of costs and timelines in already orders until the father is “back lawyer was only going through the under-resourced courts. on his feet”. The submissions made motions (a generous concession) and Our former federal treasurer, Peter on the father’s behalf were confusing would appeal in any event. In the Costello once remarked, “(the) law and underwhelming. The Referee ordinary course of events she would is a very blunt instrument when you then indicated to the parties that have handed down an ex tempore are working on relationships.”1 This she would reserve her decision. decision awarding joint custody appears to be a global truth. The The father and his lawyer with a default to the primary carer. possibility of achieving any sort of departed without so much as Most matters that came before her satisfactory process is either at risk a nod to the bench. were commenced and concluded of being hampered by unreasonable I thanked the Referee for letting within two months with only two delays in an effort to secure superior me sit in but she asked me to stay for court events and she was at pains quality of evidence, or by the a chat about the case and I then had to explain that she usually ran a confusion of expedited applications, the privilege of continuing the earlier far more streamlined process. When unstructured proceedings and fascinating discussion. She spoke I described to her the current delays inadequate evidence. frankly about the mediocre quality our system was experiencing, On a positive note, I had not of the evidence and the advocacy. the Referee expressed surprise expected to have the opportunity The Referee said to me, “What am and wondered how the parties of speaking to anyone at the Family I supposed to make of all this – they managed to function under such Law Court in New York, let alone the didn’t illicit enough evidence for me protracted stress. presiding judicial officer. It was a to make orders.” The Referee was not Unhappy families do share a privilege and a pleasure to exchange clear as to whether time between the common element: an absence of information and experiences child and the father was or wasn’t effective communication. It is this with her. The Referee’s genuine happening because neither lawyer feature that reluctantly drives these commitment to and passion for her cross examined the witnesses about families to seek somewhat crude role was inspiring and I left the court that issue and neither of them made remedial relief for their private with a renewed vigor for my own role submissions about the present struggles through litigation. A as a family law barrister. regime of time. The father’s living satisfactory result can be achieved if The assistance of unhappy families arrangements were unclear and the all participants use their best efforts in a forensic context remains a work Referee surmised that neither the to understand and to be understood. in progress, everywhere. There is father nor his “friend” wanted to be Effective communication is the key to much to observe and learn about on the record about this issue. The any satisfactory resolution of conflict what is and isn’t working in various mother seemed untroubled by the in unhappy families; if parties jurisdictions. father’s living arrangements and cannot achieve it in their private 1 Taken from Transcript of an interview appeared to support the father’s negotiations, their only hope is that between the Hon Peter Costello MP, ongoing relationship with his son. their advocates achieve it through Treasurer with Sally Loane at 2BL on Friday, 27 June 2003 at 9.05 am But now the child was approaching the court process. Any benefit to the

54 VBN VBN 55 news and views news

A Moroccan odyssey

Building Riad Emberiza Sahari ALEXANDRA RICHARDS

t is now over three years since I boarded ancient Medina, golden lights and glamorous venues. a plane to come to Morocco to take on a Then, the people, pacifist and tolerant, albeit streetwise, venture which has proved to be one of the with a mischievous sense of humour. And also the most difficult of my life. beautiful weather: palm trees fronding snow covered alps, I first came to Morocco as a tourist in brilliant blue skies, and every shade of verdant green and December 2010. I visited this country seven grey. I was enthralled by this exotic and quixotic land of times over the following two years. I fell in love with its vast contrasts and vast contradictions. extraordinary geographical diversity and ancient imperial I woke up one morning in a riad in the Marrakech cities. Medina and thought, “If only I could own a riad and The beauty of the country captivated me. When I operate a small hotel and do something different for a thinkI of Morocco, I call to mind its biblical architecture, change from my life as a barrister.” I remembered Alan streetscapes, desert scenes, crescent moons, starlit Goldberg QC once saying to me: “Every barrister should heavens and Marrakech; bewitching and beguiling, the take a sabbatical at least once every 11 years.” “Red City” rising up out of the desert with its palm groves, I had been a practising lawyer for more than 30 years

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work of builders, receiving quotes, visits to various decentralised and deciding on a contractor for the authorities); and works. The building works began in » thousands of lesser happenings November 2012 and I left Australia which would be considered the following month. significant in developed countries. The riad was a large one and of It was the excruciating unknowing grand proportions (unlike most and the constant fear and anxiety, Medina riads). Its sole owners had which almost undid me. Multiple been a well-to-do and well-known factors were complicit: I could not old Moroccan family who had built it speak Darija, a mélange of local in the 18th century. dialect and Arabic; I had only my The renovation process then frail knowledge of French (not that the contractor or workers could The renovations were extensive, speak French); I knew nothing about including the construction of the culture; I was a woman on my two suites and ensuites, two new own and not only single, but also terraces and passage ways and a European woman—as all non- parapets, the enlarging of existing Moroccans are referred to. I must, by rooms by demolition of walls, and definition, be rich, which produced the construction of the numerous much hand-rubbing, gleeful ensuites, new kitchen, pool, fountains responses and a race to “assist”. etc. Apart from the magnificent On occasion, when one of carved cedar salon ceiling, every numerous “official” envoys arrived, I square centimeter of every wall, floor, would hide in darkened rooms deep column, ceiling and terrace of the within the bowels of the riad to the riad was reconstructed and finished insistent banging of the front-door with either the fabulous marble knockers. The contractors would powder traditional Moroccan hand- open the door and I would remain polished tadelakt or the beautiful in hiding until the newcomer’s zellij mosaics (handmade in Fez). departure. Aside from my aversion The renovations quickly to these “officials”, any unnecessary transformed the original dream into disclosure that the owner was a a nightmare. War And Peace could single, European woman would be rewritten. My Australian friends amount to pure folly. and family who kept up with the Afterwards, my older daughter who and, apart from the usual holidays, sagas urged me to put pen to paper. I visited Morocco during the height of had taken no time out. I was stale and resisted. The experience was too epic the renovations and difficulties said somewhat disenchanted by the toll of and too painful to commit to writing, to me: “I never believed you could the years. I felt at the time. This is my first pull through for I could see no way Having so decided, I returned to written account other than through out; I could only keep silent.” My Australia from that particular visit email exchanges. younger sister said something similar. on a mission to work and work in I completed the renovation and My family and friends in Australia order to make my goal possible. In reconstruction of the riad after: and friends in Marrakech kept me my ODCW 17th floor chambers (those » four stop-work orders; within an inch of my sanity. of Henry Jolson QC, sadly passed), » two demolition orders; I was indeed very fortunate to I became almost a recluse in my » one set of legal proceedings; meet quickly a handful of American determination to turn my dream into » a thief and a scoundrel for a and French expats in Marrakech a reality. contractor; (Marrakech has a large international In July 2012 I signed a contract for » untrained workers; community) who have supported the purchase of a large unrenovated » thousands of government and helped me, consoled and cajoled riad (unrenovated being my first and “Commission” visits and me, and made me laugh at critical big—no, huge—mistake) in the inspections (all with a view to the moments (occurring almost daily). Marrakech Medina. The property requisite covert passing of the only At one point when I faced physical settled in September 2012 (another commodity that talks); threats, one very good French visit) and I spent that month in » an architect who falsified the plans friend here said to me: “Be brave, Marrakech, meeting and seeing the (causing nine months of daily

56 VBN VBN 57 them were found in the souk for Moroccans (Marrakech’s flea market named Bab Khmeiss). The scouring news and views news of this market has become a small addiction. Comprising 99.5 per cent true rubbish, it is a delight to find something of beauty with a price of a negligible amount—post-negotiation. I am proud of the riad named RIAD EMBERIZA SAHARI and its decoration. Visit the website www. riademberizasahari.com and read the reviews on Tripadvisor; there are many comments attesting to the beauty and tranquility of the riad, its design and decoration. Also satisfying is that the whole of the riad, its renovation and reconstruction were of my making. Other than a person who did plans for authorisations (a whole other story), I had no draftsperson and no interior designer. At the beginning, the design and décor of the riad confounded me. It took time to appreciate that the design needed to be cohesive and required a theme. Once I realized this, the theme came readily: the beautiful Sahara. I sought to bring its tranquility, soft gentle breezes and colours, reminiscent of Sahara sands and oases, into the riad. I have learned much: I know about Once I realized this, the theme came readily: the pools and filtration systems, pressure pumps, construction patterns, beautiful Sahara. I sought to bring its tranquility, electricity issues, plumbing, washers, soft gentle breezes and colours, reminiscent of painting colours, floods and drains, heating and cooling, woodwork, Sahara sands and oases, into the riad. mosaics, plans, authorisations, Moroccan bureaucracies, retail Alexandra.” He added: “It is easy to The creative process buying (only the finest linen and be brave when you have no choice.” It was then time to furnish and mattresses), kitchens, menus, hiring Precisely! With the riad deep decorate the riad. This was the good and firing, being the client (yes, I under metres and metres of rubble, bit. I love decorating and this was have an advocate here), tourism, all my money had been buried with something that a barrister’s life tour agencies, online travel agencies, it. I simply had no choice but to denies. Whilst the law is a creative excursions, chauffeurs, website founder on. and challenging profession in its designs, planners and schedules, The renovations took over own way, absent is the ongoing motor engines including my 4WD two years to complete (an initial satisfaction resulting from the which I can now accurately diagnose estimation of nine months, but creation of a physical object of and sometimes repair. Before, I knew that occurs all over the world). My beauty that one can stand back from, nothing about these practical affairs. motto became and remains “Never appreciate and admire. I thank my barrister training say never; and, never say always”, Lighting was a particular challenge: for my ability to adapt so readily echoing Talleyrand on love and in all, 143 light fittings had to be to change. My decades at the Bar politics. installed and located. Most of stood me in good stead for these

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trials and tribulations. I commend to like-minded members of the Bar an adventurous course; the only regrets are for the things we wished we had done and not for those that we did. I, most certainly, have yet to regret the decision to take on Riad Emberiza Sahari. So my life as an hotelier? Unsurprisingly, running a hotel business is different to life at the Bar: it is always frantic. Rather than one large brief (as my practice tended to be at any one time) there are a million and one smaller things occurring simultaneously and requiring attention. But these things are not so weighty and the responsibility not so pressing. A mistake in this game will ultimately fall on the business’s reputation and therefore on me and not the client. I ﬁnd relief in this.

Returning to the Bar When the riad is fully and firmly established, I shall return to the Bar. I have retained my practising certificate and Bar subscriptions. I have completed some pro bono legal work from Marrakech in relation to the Human Rights Commission Inquiry into Child Detention. I have also taken on some taxation and commercial advice work. Court work is not open, of course. religion. Still, I am an anti-theist, a operated. The ratings go up and down Flexibility, adaptability and the feminist and anti the veil. However, all the time according to the reviews ability to keep a straight face: upon Morocco is unlike some countries in posted. This is always a challenge, my return to the Bar I am sure these the Middle East in that here women sometimes a cause for celebration attributes will help. I also suspect do wear jeans and do not wear veils, and sometimes for commiseration. not much can take me by surprise particularly in the new City outside But that’s life … especially in anymore. the Medina walls. Women do wear Marrakech! Does that mean that I have become veils in the Medina but burqhas and hardened? Yes. But I have also hijabs are rare. become more complete. I feel more The hotel has now been fully capable of the greater emotions of operational for a little over a year; life and of the lesser ones: I love it opened at Easter 2015. The guests more, laugh more, cry more, hate and my staff are the best part of more and am embittered more. the business aside from the riad’s Living in a Muslim Country physical beauty. I am thrilled with the riad’s success: as at the date People often ask me how I find living of writing Tripadvisor has Riad in Marrakech in a Muslim society. I Emberiza Sahari rated No 19 out of have found that to do so brings with 1174 riads in Marrakech, the majority it an understanding and a certain of which are European owned and tolerance of Islamic culture and

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Juvenal (Satire VI, lines 347–8). Translation from Latin: “Who will guard the 60 VBN guards themselves?” news and views Is the High Court helping to ﬁght corruption?

STEPHEN CHARLES

ictorians may not realise that our Victorian Building Commission; and the prevalence of state has the worst and least effective complaints demonstrating conflict of interest both in local Government integrity system in government and the public sector. Mr Brouwer’s report in Australia. Until recently it had no anti- March 2014 on conflict of interest in the Victorian public corruption commission; an FOI system sector is of particular significance, including a number subverted by governmental practices of case studies demonstrating the loss to the community enabling exemption from disclosure; no regulatory such a conflict of interest causes. system requiring disclosure of political donations (we Given that corruption is insidious, usually secret, and have to rely on inadequate Commonwealth legislation); hard to identify and eradicate, there are unsurprisingly a protected disclosure act which fails to protect whistle numerous issues which, in recent times, have cried out Vblowers;1 and an Audit Act that prevents the Auditor- for investigation by a body such as Victoria’s Independent General from making proper investigations by “following Broad Based Anti-Corruption Commission (IBAC). The the dollar”.2 With no effective integrity system, it is hardly position is made worse in Victoria by increasing secrecy surprising that corruption has gone undiscovered in over governmental policy development and decision Victoria, and that many may have believed that there was making, and the process of arriving at government little corruption in the public service and that our state contracts. But even so, areas of concern ripe for an was pretty “clean” compared with New South Wales. IBAC investigation would include: urban planning, for Any such belief must have been rudely shattered by example the Windsor Hotel and Phillip Island debacles; IBAC’s investigation, Operation Ord, into the Education and the practice known as “flipping” when a developer Department which oversees $4 billion of the state obtains a permit for a city property and later sells it to school system’s annual budget. The public disclosures of a second developer at a massive profit created by the Operation Ord have already demonstrated that millions issue of the permit; the enormous time and expense of dollars have been transferred to so-called “banker of the development of Myki and the desalination schools”, and used by senior officials as a slush fund to plant; the activities of some construction unions and pay for travel, food, alcohol and other expenses. At least their interaction with public officials; public-private- six schools have been involved and several senior officials partnerships; political funding; and the East-West Link of the Department. Similarly last year in IBAC’s Operation side-letter. Fitzroy, we learnt that two Transport Department project Before the 2010 election, Ted Baillieu’s then opposition officers awarded $25 million of public money over a party promised Victorians that if elected it would seven-year period to companies they had set up, making establish a broad-based anti-corruption commission a personal profit of over $3 million, the work carried modelled closely on the NSW Independent Commission out being allegedly shoddy. Evidence from one of the Against Corruption (ICAC). ICAC was introduced in officers was that a culture had developed within the 1988 by the Greiner Government. It is a body with Transport Department of turning a blind eye to improper great powers and it has been very effective. Until relationships between staff and contractors. recently, its powers of investigation were thought to be Anyone who believed Victoria was clean and largely almost unlimited. The Independent Commission Against free from corruption before these disclosures cannot Corruption Act 1988 (NSW) (ICAC Act) defines “corrupt have been following the very damning reports from conduct” in such a way as to include any activity that the Ombudsman, George Brouwer, in the years before could adversely affect the exercise of official functions by illustration by guy shield IBAC was set up. Over a 10-year period, Mr Brouwer a public official and a wide variety of particular offences. repeatedly in his reports to Parliament drew attention The ICAC’s jurisdiction is defined in such a way as to to matters such as: the conduct of councillors at the entitle it to investigate any allegation or complaint or any Brimbank City Council; the problems of conflict of circumstances which in the Commission’s opinion imply interest which pervaded local government; repeated that corrupt conduct or conduct connected with corrupt examples of public officers misusing their position to conduct may have occurred, may be occurring or may obtain a personal benefit; maladministration in the be about to occur. ICAC is plainly entitled to investigate

60 VBN VBN 61 IBAC’s difficulties start with the definition of “corrupt official or perverting the course of conduct” which is very narrowly defined. justice. The definition of corrupt conduct concludes with the words news and views news allegations amounting to misconduct Obeid family was likely to profit by up “being conduct that would, if the in public office by a public official, to $100 million. facts were found beyond reasonable including a minister. ICAC’s It is necessary to remember when doubt at a trial, constitute a relevant entitlement to investigate upon examining the IBAC provisions, offence.” IBAC’s jurisdiction is then suspicion of corruption, if it remains that, unlike most criminal offences limited by s.60(2) which requires practically unlimited, would make it which are investigated by a police it not to conduct an investigation very difficult for an investigated party force and prosecutorial bodies, “unless it is reasonably satisfied to obstruct or delay an investigation. the hidden nature of corruption that the conduct is serious corrupt A good example is the makes investigation difficult. conduct.” investigation of the Obeid family And when any investigation of Misconduct in public office is in Operation Jasper, the nature of suspected corruption commences, an indictable offence at common which is expounded in full detail well-funded suspects will take any law, not by statute, and is therefore on ICAC’s website. The inquiry step they can to obstruct or delay plainly NOT covered by the definition investigated various activities of the investigation, which in turn of relevant offence. This is a very the NSW Minister for Primary enables documents or evidence to surprising omission since misconduct Industries and Mineral Resources, be hidden or destroyed. So much in public office is at the heart of the Hon. Ian Macdonald, which was repeatedly obvious when the conduct by public officials which had the effect of opening a mining Painters and Dockers Commission would be likely to attract the attention area in the Bylong Valley for coal- of the 1980’s conducted by Frank of an anti-corruption body. But worse, exploration, including whether the Costigan QC began to uncover the effect of s.60(2) of the IBAC Minister’s decision to do so was evidence of the money-laundering Act is that IBAC must not conduct influenced by Mr Obeid or members and other activities of those an investigation – at all – unless of his family. This decision was not involved in the “Bottom of the reasonably satisfied that the conduct based on, indeed was contrary to, Harbour” schemes. is “serious” corrupt conduct (not recommendations of the Minister’s The IBAC legislation at first glance defined). The requirement that IBAC departmental officers. might indeed be thought modelled must be able to articulate those facts, At the outset of the investigation, on ICAC - it contains powers in which if proved beyond reasonable ICAC merely had suspicions that some the investigation of corruption doubt, would constitute a relevant unidentified corruption might have which are similar to ICAC’s; powers offence, means that before IBAC occurred. At the opening of the public which in the 1980’s horrified many can commence an investigation, it hearing it was alleged that the Obeid of those considering the activities must be able to state clearly the facts, family had deliberately organised of Costigan’s Royal Commission, amounting to serious corrupt conduct, their business affairs so as to disguise or the setting up of a National that it wishes to investigate. It is no their involvement with the relevant Anti-corruption Body which he wonder that in his 2014 report to land, including through multiple recommended. Many still share the Parliament, the IBAC Commissioner layers of discretionary trusts and $2 view that to grant an anti-corruption made complaint as to these provisions. shelf companies, the names of which body such powers is completely The IBAC Commissioner, when his were repeatedly changed. ICAC had inconsistent with a whole series of investigators wish to commence a investigated these matters for many basic civil liberties which have been preliminary investigation, would months, during which more than hard-won since the 16th century in first have to ask them to specify the 100 witnesses had been interviewed, the English law courts, starting of indictable offence involved. search warrants had been executed, course with the preclusion of torture The obvious consequence is that, computer hard drives seized and and the rule that evidence obtained if circumstances similar to those downloaded, and tens of thousands by torture could never be used involving in the Obeid family arose of documents seized and assessed for against the victim. in Victoria, IBAC could be prevented relevance. Even then, on one view, the IBAC’s difficulties start with the from carrying out any investigation Minister’s decisions might have been definition of “corrupt conduct” which using IBAC’s extensive powers unless explained solely as bad government. is very narrowly defined. A “relevant it had much better information as to The inquiry was to investigate offence” is defined in s.3 of the IBAC what had occurred than was available whether the Minister’s decisions were Act as “an indictable offence against to ICAC when it commenced to explained by corruption, since it was an act” or one of three common law investigate the Minister’s grant of alleged that their effect was that the offences, in effect bribery of a public mining licences in the Bylong Valley.

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It should be noted that the Victorian The Amending Bill, if passed, will be a good start to legislation does not at present even providing Victoria with a more effective IBAC. grant IBAC jurisdiction to commence preliminary investigations. Sensibly IBAC’s jurisdiction did not include much broader definition of “corrupt the IBAC Commissioner has misconduct in public office, and conduct”, including misconduct in presumed an entitlement to make equally so that IBAC was not entitled public office, is introduced. Secondly, preliminary inquiries, but if a suspect to investigate a complaint unless it all thresholds for commencing a became aware that any investigation was able to articulate facts which full investigation, using IBAC’s full was being conducted, even at a very if proved beyond reasonable doubt powers, should be eliminated. Any preliminary stage, there remains the would constitute one of the narrow division between a preliminary prospect that the suspect would be range of relevant offences, which and a full investigation should be entitled to seek a Supreme Court also constitute serious corrupt removed. In effect, Parliament must injunction asking for a halt to any conduct. The reality was that IBAC trust the Commissioner and his staff such investigation with the inevitable required a well-informed insider’s not to investigate trivial or frivolous consequent delay and obstruction complaint before it could investigate. complaints, the matter being left to and possible loss of evidence. The Baillieu Government clearly did the Commissioner’s discretion. Before the last Victorian election, not fulfil its preselection promise to Margaret Cunneen SC is a Deputy the Coalition Government tabled produce an IBAC closely modelled Senior Crown Prosecutor in New amending legislation which was on the ICAC. The version enacted South Wales. In 2005 she was Crown never reached. The Andrews was an IBAC stifled by the thresholds Prosecutor in the horrifying case of Government has now introduced deliberately built into the Act a young woman who was raped by an Amending Bill, not yet debated, and hamstrung by a very narrow 14 men over a six-hour period. After which broadens the definition of definition of corrupt conduct. a long trial, in which every possible “corrupt conduct” by including the Even after the amending Bill is point was taken, a number of them offence of misconduct in public enacted, IBAC will be in a much were convicted and long sentences office and reduces somewhat the weaker position than ICAC. IBAC will were imposed. Cunneen’s work was threshold before which IBAC may be entitled to conduct a preliminary rightly regarded as heroic. Sometime conduct a full investigation. The inquiry, but not to proceed to a full later she gave a lecture to students at Bill requires IBAC to prioritise inquiry until a threshold has been the University of Newcastle in which its attention to investigating and passed. That threshold requires IBAC she raised the question whether the exposing corrupt conduct that IBAC to “suspect on reasonable grounds pendulum had swung too far to the considers may be serious or systemic. that the conduct constitutes corrupt right in the direction of protection of The Bill authorises IBAC to conduct conduct”. IBAC must therefore, the rights of the accused. Her speech preliminary inquiries and while have a degree of knowledge of the caused headlines, great antagonism doing so to require the principal conduct, sufficient to have reasonable in the judicial community, and officer of a public body to provide grounds to enable it to identify the some have said that it delayed her any relevant information to IBAC and facts which would constitute one of promotion to Senior Counsel for a any person to attend and produce the relevant offences that constitute number of years. Consequently she documents. There are additional corrupt conduct. It will no longer be was seen in some legal quarters as a useful provisions such as entitling necessary for IBAC to establish the tall poppy that had to be lopped. IBAC to make certain delegations, required state of mind (mens rea) for In 2014 ICAC sought to investigate and to apply to the Magistrates’ Court the relevant offence, which it is now Cunneen and her son and his for search warrants. entitled to assume, but IBAC must girlfriend over an allegation that, The Amending Bill, if passed, will still be able to articulate the other with intent to pervert the course of be a good start to providing Victoria facts necessary to establish a relevant justice, she and her son counselled with a more effective IBAC. But it is offence. If IBAC remains unable to his girlfriend to pretend to have only that. Those who drafted both use its full powers at the outset of chest pains to prevent police officers the Coalition’s amendments and the an investigation it will be hampered obtaining evidence of the girl’s blood Amending Bill assumed that IBAC in the preliminary phase of an alcohol level at the scene of a traffic has no power to make preliminary investigation by the difficulty accident. The girl had been involved inquiries. This assumption is of knowing what information to in the accident, but had not been incorrect. In Murphy v Lush (1986) seek from a departmental head, drinking, and did take a breath test 65 ALR 651, the High Court said that or what documents to seek from and no alcohol was shown on it. “no one requires special authority other persons. It has been alleged that ICAC was at law simply to make inquiries”. Victoria will not have a properly tipped off to the matter by a hostile It was always inexplicable that armed and empowered IBAC until a member of the family.

62 VBN VBN 63 Ms Cunneen took proceedings nothing to do with the ordinary dissentient in the Court of Appeal in seeking a declaration that ICAC understanding of corruption New South Wales, that conduct which did not have power to conduct the and enabled ICAC to exercise its could impair the Court’s capacity to news and views news inquiry. The most relevant section extraordinary coercive powers do justice in the particular case was of the ICAC Act is s.8(1) which says in areas ranging well beyond conduct which could adversely affect “corrupt conduct” is “any conduct of the ordinary understanding of at least indirectly the exercise by the any person (whether or not a public corruption. Court of its official functions. official) that adversely affects, or The majority then proceed to Next, Gageler J pointed out that could adversely affect, either directly instance a number of examples the reasoning of the majority had or indirectly, the exercise of official of criminal or unlawful conduct the potential to exclude from the functions by any public official,” and which might affect an honest public definition of “corrupt conduct” the which could involve certain kinds of official’s behaviour, for example – case of fraud on a public official or of misconduct listed in the sub-section, (a) a public authority losing money conspiracy to defraud a public official including perverting the course through relying on the advice of a which involved no wrong doing on of justice. The alleged conduct did fraudulent stockbroker; the part of the public official, no not concern the exercise of any of (b) a thief stealing one or more of a matter how widespread the conduct her duties as a prosecutor. ICAC public authority’s vehicles; or detrimental its effect; thus, state- contended that the conduct was (c) telling lies to a police officer to wide endemic collusion among corrupt because it could adversely deflect the officer from instituting tenderers for government contracts, affect the exercise of official a prosecution – or serious and systemic fraud in the functions by the investigating police and a number of others, in each making of applications for licences officers and by a court that would case then leading to some adverse or permits, would be excluded from deal with any charges arising out of impact on the public authority or ICAC’s jurisdiction. In his view it the accident. official’s activities. was improbable that ICAC was to The principal argument in The High Court relied on the be denied the power to investigate the High Court (ICAC v Cunneen principle of legality, coupled with serious and systemic fraud of this [2015] HCA 14) was directed to the the lack of a clearly expressed kind. He examined the legislative meaning of the expression “adversely legislative intention to override basic history of ICAC, that it had carried affect”, which appears in several rights and freedoms on a sweeping out a number of investigations on the wider basis (efficacy) preferred by Many lawyers prefer the interpretation of the ICAC Bathurst CJ and himself, after which Act given by Gageler J, as being the more probable and the ICAC Act had been amended without any indication of comment or convenient of the alternatives. parliamentary disapproval on such an interpretation of the legislation. places. There were said to be only scale. The majority concluded that The Act on the whole in his view two possibilities, either it means the provisions of the ICAC Act showed that it permitted ICAC to adversely affect or could adversely operate more harmoniously on investigate over a wide area, having affect the probity of the exercise the footing that the Act is directed the discretion to refrain or disengage of an official function by a public towards promoting the integrity from a particular investigation of official, or it means adversely affect and accountability of public conduct which ICAC assessed to be or could affect the efficacy of the administration in the sense of trivial, or where it was thought to be exercise of an official function by a maintaining probity in the exercise of neither serious nor systemic (cf. ICAC public official in the sense that the official functions. Act, ss 12A and 20(3)). official could exercise the function The dissentient, Gageler J, Many lawyers prefer the in a different manner, or make a considered that ICAC was entitled interpretation of the ICAC Act given different decision from that which to investigate if the criminal conduct by Gageler J, as being the more would otherwise be the case. had the potential to impair the probable and convenient of the The majority chose the former, efficacy of an exercise of an official alternatives. In the High Court the which they said accorded with function by a public official. In his tide of argument turned, as Janet the ordinary understanding of opinion the ordinary grammatical Albrechtson contended in a scathing corruption in public administration. meaning of “could adversely affect” attack on ICAC in the Australian, The latter interpretation, in their included situations where the when Nettle J asked ICAC’s counsel view, would result in the inclusion conduct would affect the efficacy of whether it was sufficient to be of a broad array of criminal offences the exercise of an official function. corrupt conduct merely because and unlawful conduct which had He agreed with Bathurst CJ, the someone lied to a police officer,

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to which ICAC counsel agreed. The answer to the question involved in the title to this The majority had seen a mass of article is that the High Court is plainly not helping to fight politicians on both sides of politics corruption. having their reputations destroyed by ICAC and this spooked them and grounds that ICAC was out of control, Cunneen case. As to ICAC itself, took them one step too far. and granting retrospective immunity its reaction was that the High ICAC bears some responsibility to ICAC in effect endorsed unlawful Court’s narrow interpretation of the for what has happened. ICAC for conduct in public administration, and legislation would severely restrict its years has had a rule of thumb to that unlawful conduct has no place investigative capabilities, and that it have at least one public hearing a in the public sector. But the effect of expected to lose at least 30 per cent month. There had been a history such legislation is merely to validate of its present work. Many past and of grand statements in opening by past investigations and findings present ongoing investigations were ICAC counsel, before any evidence which otherwise might have to be likely to have been found invalid and had been tendered. Particularly carried out again, and also to leave ICAC’s findings invalidated, if the in the field of political donations, the State possibly open to actions for amending legislation had not been reputations (e.g. the NSW Premier, substantial damages. passed. The question whether the Mr O’Farrell) had been destroyed, In the absence of corrective ICAC legislation should be amended almost by accident, when no legislation, the High Court majority’s to broaden it in the future was left allegation of corruption had been reasoning would have the following by the Premier to an Independent made against the person named. The consequences. ICAC would have Panel headed by former Chief Justice Commissioner, former Justice Megan no power to investigate State-wide Murray Gleeson AC (the Panel’s Latham, was recently quoted telling endemic collusion among tenderers Report was delivered on 30 July young lawyers at the NSW Bar that for government contracts. It would 2015). inquisitorial litigation is “fantastic”, have no jurisdiction to investigate The answer to the question “you are not confined by the rules of serious and systemic fraud in the involved in the title to this article evidence, you have a free kick, you making of applications for licences, is that the High Court is plainly not can go anywhere you want and it’s a permits or clearances under health helping to fight corruption. On the lot of fun” and later, that questioning and safety laws; or for licences to contrary, it is making it substantially a witness in an ICAC hearing is permit exploitation of State-owned more difficult to expose and eradicate “like pulling wings off a butterfly”. natural resources. It surely cannot widespread corruption. But it is These comments, caught on a video, be right that potentially widespread not the High Court’s task to fight were likely to upset many, as they and systemic corruption should corruption, rather it is to interpret did. ICAC itself was doubly at risk be beyond the reach of ICAC’s and lay down the law, and to act as a in pursuing Cunneen. She was not investigatory powers. balance and brake on the excesses acting as a prosecutor, a state official, The anti-corruption commissions of Australian governments. Of even if she made the suggestion that of both Victoria and Queensland course, from time to time there will was alleged against her. But on any will also be seriously affected be people who strongly disagree view that conduct, if corrupt, was and inhibited by the High Court’s with the High Court. Jerrold Cripps, plainly not systemic, nor could it be decision in the Cunneen case. In a past Supreme Court judge and seen as serious corruption. If anyone both cases the relevant legislation former ICAC Commissioner, said the at ICAC took it seriously, it should makes frequent use of the phrase Cunneen decision overturned two have been simply referred to the “adversely affect” and the opening decades of understanding of what police or the Chief Crown Prosecutor words in the IBAC Act definition of ICAC could investigate. Those who to consider. To pursue it before a “corrupt conduct” are that corrupt conspired to stop public servants public ICAC hearing was guaranteed conduct means conduct of any person from discharging their duties to provoke the hostile reaction it has that “adversely affects the honest would no longer be captured by the produced in the community, Bar and performance by a public officer”. legislation. He continued “I wonder the High Court. However, in the case of IBAC, both whether the courts when they make The reaction of the NSW major parties have promised at these decisions ever think about the Government was swift. Premier Baird least substantial amendment of the implications”. There will be many said that Parliament would legislate legislation. Plainly the draughtsman who agree with Jerrold Cripps. to validate past investigations, and of any such amendments must do so retrospectively, and it has done 1 See Protected Disclosure Act 2012 (Vic) ensure that the Victorian legislation and its predecessor, Whistleblowers so. This was vigorously criticised in cannot be interpreted in the way Protection Act 2001(Vic). the community and particularly by the High Court has decided in the 2 Audit Act 1994 (Vic). The Australian newspaper, on the

64 VBN VBN 65 news and views news Seeing double: Judicial Registrars Burchell and Tran

GEORGINA COSTELLO AND JUSTIN WHEELAHAN

t is just over a year now since the Governor-in-Council appointed Sharon Burchell and My Anh Tran to be Judicial Registrars of the County Court of Victoria. Such appointments would ordinarily be unremarkable, but these were, in one respect, ground breaking. There is only one position of Judicial Registrar in the Commercial Division of the Court and it is “work-shared” between JudicialI Registrars Burchell and Tran. Judicial Registrar Burchell works three days per week and Judicial Registrar Tran works two days per week. This bold experiment with job- sharing, which VBN believes is the ﬁrst in any Australian jurisdiction, seems to be working well. The job-sharing model has worked because it consists of mediations, orders on the papers, pre-trial directions, some interlocutory disputes and enforcement applications, which can usually be heard in a day and easily compartmentalised between the Judicial Registrars. The set-up also has the advantage that if one hears a mediation, the other can hear further applications and directions in the same proceeding, avoiding the possibility of being conﬂicted. Burchell and Tran share precedent orders and have developed a working relationship that appears seamless. This relationship is facilitated by a constant: their shared associate, Simon Bobko, who works full-

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time. Each Judicial Registrar hands working part-time. The advice Tran was a brilliant student. She was the relay baton to Mr Bobko at the was gloomy: awarded first class honours in law, end of the day and any message to and received a stack of academic Be prepared to break even and just be the other is conveyed through him. prizes, including the Corrs Chambers around to maintain your profile. Both Judicial Registrars speak Westgarth Prize for Intellectual positively of the support they have Looking to return to the Bar after an Property; the Clifford Chance Prize received from the Commercial extended maternity leave, JR Tran says in Civil Procedure; the Melbourne Division. Judicial Registrar Burchell she was faced with a difficult choice: Abroad Scholarship to study law at told Bar News: McGill University; and an Exhibition Whilst I am in awe of women who can in Psychology in 1995. JR Tran was an It is a really innovative division, with combine a successful full-time practice articled clerk and solicitor at Freehills a focus on providing practical and as a barrister with raising a young family and a researcher at the Victorian Court expeditious resolution of disputes. Right I knew it was not for me. But nor was I of Appeal. from the start, the division was willing that keen on trying to maintain a part- Judicial Registrar Tran began to explore the possibility of a job share time practice or going in-house. her career at the Bar reading with and to embrace the benefits to the Court She says there is a real need to provide Pamela Tate (now Justice Tate). JR that could flow from our proposal [to job options to barristers who, for whatever Tran went on to develop a successful share]. reason, don’t wish to conform to the commercial and administrative As stated on the County Court’s traditional model of unpredictable and law practice and held positions of website, nearly 50 per cent of all long hours at work. “I love the fact that responsibility in the Commercial civil initiations in the County Court I can be part of the administration of Bar Association. Her work at the are now within the Commercial justice while still fulfilling commitment Bar included complex international Division. More than 2,600 cases are to family,” says JR Tran. construction arbitration matters, initiated in the Division each year. Judicial Registrar Burchell, a mother property law cases and intellectual The Division has no monetary limit of two, is relieved to be able to job- property work. on its jurisdiction, and offers prompt share the role with JR Tran, who also JR Tran’s father hails from Vietnam. trial dates and a team of specialist has two children. He came to Australia at the age of 17 commercial judges. The Division: In her university days in Western under the Colombo Plan, speaking Australia, JR Burchell was awarded the English he had taught himself listening ... aims to provide a fast, cost-effective Sir Ronald Wilson Prize in Law and the to a vinyl record. JR Burchell also and fair alternative for the resolution Vice Chancellor’s commendation for shares Asian heritage through her of commercial disputes. This is Academic Excellence from Murdoch Chinese Singaporean born mother. achieved through a reduced need for University in Western Australia. After On 6 May 2015, the Asian Australian costly interlocutory appearances, the graduating, she moved east and was an Lawyers Association issued a press availability of trial dates within six associate: first with now-retired Justice release congratulating JR Burchell months of first administrative mention, David Habersberger of the Victorian and Tran and stating that it was extremely low rates of not reached cases Supreme Court; and then with Justice encouraging to see more cultural and fast average time to judgment. 1 Kenny of the Federal Court. She then diversity in judicial appointments. Judicial Registrar Tran told Bar worked as a litigator at Blake Dawson The Judicial Registrars say they News, “The cases we deal with range Waldron (now Ashurst). At the Bar, she have been warmly welcomed and from simple debt collection matters read with Samantha Marks (now QC). mentored by the County Court to complex contractual disputes Judicial Registrar Burchell had a judges they work with, especially the and multi-million dollar property fast-paced practice as a commercial Judge in Charge of the Commercial development disputes” It is “diverse and administrative law barrister for 11 Division, Judge Maree Kennedy (now and challenging” she added. years before her judicial appointment, a Justice of the Supreme Court). Before applying for the shared including appearances in High Court VBN commends the County Court appointment, Burchell and Tran were migration cases, representing Telstra for its progressive and meritocratic both members of our Bar practising and Opes Prime in the Supreme Court appointment of these two eminently in commercial and public law. Judicial and a brief for the mine operators in capable lawyers. The decision to Registrar Burchell worried that the the Hazelwood Mine Fire Inquiry in appoint Judicial Registrars Burchell unpredictable time demands of her the Latrobe Valley. In 2014, JR Burchell and Tran brings collaboration, diversity career at the Bar might impede her won the Lawyers’ Weekly Women in and legal acumen to the County Court’s from spending enough time with her the Law Junior Counsel Award. Commercial Division. family. She attended a seminar on With science and law degrees from 1 https://www.countycourt.vic.gov.au/ barristers returning to the Bar after the University of Melbourne, as well commercial-division (accessed 10 June parental leave and the prospect of as a BCL from Oxford University, JR 2016).

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Are the legal risks faced by company directors in Australia intolerable?

ED BATROUNEY*

he risks faced by Australian company directors in Australia remain protected by fundamental directors have never been greater. The safeguards, including the role of the courts as the arbiter decision of the Federal Court in ASIC of the standards required by directors, the operation v Healy1 (Centro) still looms large in of the business judgement rule, and recognition that the collective memory of Australian misconduct on behalf of a company is not of itself capable boardrooms and amongst non-executive of imposing personal liability on directors. directors in particular. Importantly, however, company As basic as these safeguards may seem, they are under

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threat in the financial services that the directors of the Centro group be more challenging in their dealings sector in England and Wales. In that breached their duties by failing with management and executive jurisdiction, the fallout from various to apply an enquiring mind and directors. scandals in the financial services sufficient scrutiny to the content of Although the standards required of sector, and public and political the company’s financial statements. directors have become increasingly pressure for “personal responsibility”, The directors relied entirely on a onerous, Australian company has led to the establishment of a new process that involved preparation of directors remain protected by several regulatory framework that seeks to the company’s financial accounts by fundamental safeguards. First, the impose personal liability on directors suitably qualified people internally courts are the final arbiter of the and senior managers for misconduct and an audit performed by a top- standards required by directors. The that occurs within their areas of tier accounting firm. Although courts, as opposed to the regulator, responsibility. the directors were not required to are entrusted with the task of Seen in this context, Australia’s personally scrutinise each line of determining what constitutes the regime, whilst demanding of the financial statements, they were proper performance of a director’s directors, cannot be regarded as required to “apply their own minds duties in each particular case. imposing intolerable risks. Australia to, and carry out a careful review of, Secondly, directors are entitled to should, however, resist any push to the proposed financial statements” rely on the ‘business judgement rule’ follow an approach based on the to ensure that the information they in response to any allegation that premise of personal responsibility. contained was consistent with their they acted without the appropriate The safeguards jettisoned in England knowledge of the company’s affairs.5 level of care and diligence.9 and Wales are fundamental to an Two crucial findings in Middleton Thirdly, directors in Australia effective, fair and balanced approach J’s reasoning in Centro were the are not subject to any overarching to corporate governance in Australia. directors’ overall responsibility obligation to ensure that the under the Corporations Act for the company’s affairs are conducted in The standards required of company’s financial statements and accordance with law. The general company directors in Australia the magnitude of the deficiencies statutory duties in the Corporations in the company accounts.6 Further, Act cannot be used as a back door The courts are responsible for Middleton J drew little distinction to impose accessorial liability on articulating and applying the between the roles of executive and directors.10 This means that the mere standards required of Australian non-executive directors, both of fact of misconduct, or the risk of company directors according whom he regarded as being at the misconduct, on behalf of a company, to contemporary community “apex of the structure of direction cannot be used to impose liability on expectations.2 As Tadgell J has and management of the company”.7 directors. Instead, as Beach J recently observed, as the size and significance In these circumstances, the finding confirmed,11 in determining whether of corporations have increased, that directors cannot rely exclusively a director has failed to act with due so have the standards the law has on others when performing certain care and diligence, Australian courts required of directors.3 One of the tasks imposes a significant burden on balance the magnitude and risk of consequences of these changes has non-executive directors, particularly foreseeable harm from the director’s been the erosion of the distinction when contrasted with previous conduct against the potential benefits between the standards required statements of principle that there that could reasonably accrue from of executive and of non-executive is scope for directors to rely on the relevant conduct. directors. It is now accepted, others in the absence of actual for example, that there is a core or constructive knowledge that England and Wales irreducible requirement for all their reliance is misplaced.8 In the In contrast to Australia, directors directors to be involved in the absence of any delineation of the and senior managers in financial company’s management and to circumstances in which directors may institutions in England and Wales take all reasonable steps to be in a rely exclusively on management’s are subject to a regime that seeks to position to guide and monitor the processes and external advice, hold them personally responsible for company’s management. 4 prudent directors are now in a failings that occur within their areas illustration by guy shield More recently, the Federal Court in position where they should exercise of responsibility. Under the Senior Centro restricted the extent to which independent judgement when Managers Regime, which came into directors, including non-executive performing their duties, including operation in March 2016, all key directors, may rely exclusively on when reviewing and relying on work responsibilities within financial management processes and external performed by others. This imposes a institutions are specifically assigned advice when performing their duties. significant burden on non-executive to directors and senior managers.12 The ultimate finding in Centro was directors, and gives them reason to The measures used to allocate

68 VBN VBN 69 and the courts have found it necessary individual responsibility to directors Court confirmed that Australian law in legislation and litigation to refer to and senior managers include defined expects directors to take “calculated the demands made on directors in more statements of responsibility, the risks” and that courts will consider exacting terms than formerly; and the news and views news standard of capability required of them use of personal attestations and a the magnitude and risk of foreseeable has correspondingly increased... I think responsibilities map that ensures harm against the potential benefits it follows that [a director] is required by that all areas of responsibility are that could reasonably accrue from the law to be capable of keeping abreast of the company’s affairs…’ allocated to a responsible director relevant conduct, before finding that or senior manager. Significantly, a director acted without due care and 4 ASIC v Healey [2011] FCA 717, [166]. directors and senior managers must diligence.14 5 Ibid, [13]. take reasonable steps to prevent The standards expected of 6 Corporations Act, ss 295–297 and s 344. regulatory breaches in the area of the directors in Australia have become ASIC v Healey [2011] FCA 717, [132]. firm for which they are responsible, increasingly exacting and, as a result, 7 ASIC v Healey [2011] FCA 717, [13]. the so-called ‘duty of responsibility’. the distinction between the standards 8 AWA v Daniels (1995) 37 NSWLR The new regime is based on required of executive and non- 438, 502; ASIC v Adler [2002] NSWSC the recommendations of the UK executive directors is in danger of 171, [372]. In AWA v Daniels (1995) 37 NSWLR 438, 502, Rogers CJ said ’a Parliamentary Commission on being eroded. In these circumstances, non-executive director does not have Banking Standards (PCBS), which the task of directors, and non- to turn him or herself into an auditor, was established in the aftermath of executive directors in particular, managing director, chairman or other officer to find out whether management the global financial crisis.13 The PCBS has never been more demanding. are deceiving him or her.’ attributed some of the blame for However, seen in the context of 9 Corporations Act, s 180(2). The failures and scandals in the banking the developments in England and business judgement rule is available sector to a lack of responsibility and Wales, the current approach in where a director has made a business accountability on the part of directors Australia does not impose intolerable judgement, in good faith and for a proper purpose and in circumstances and senior managers, particularly in legal risks on directors of public where they have ‘informed themselves large, complex institutions. The PCBS companies. Importantly, directors of the subject matter of the judgement made a number of recommendations in Australia remain protected by to the extent they reasonably believe to be appropriate’. that focused on addressing a the business judgement rule and perceived ‘accountability firewall’, the courts’ willingness to empower 10 ASIC v Mariner [2015] FCA 589, [444]; ASIC v Maxwell [2006] NSWSC 1052, which enabled directors and senior directors to take calculated risks and [104], [110]. managers to avoid regulatory action balance competing considerations, 11 ASIC v Mariner [2015] FCA 589, [451]. by relying on the layers of delegated including by weighing the risk management within large financial of foreseeable harm against the 12 See https://www.fca.org.uk/news/ fca-publishes-final-rules-to-make- institutions. potential benefits that might accrue those-in-the-banking-sector-more- The imposition of a ‘duty of from their conduct. accountable. responsibility’ in Australia should 1 [2011] FCA 717. 13 Parliamentary Commission for be avoided. Indeed, the underlying Banking Standards, “Changing Banking 2 ASIC v Rich (2003) 44 ACSR 341, 358. premise of the Senior Managers for Good”, June 2013. http://www. parliament.uk/business/committees/ Regime – the public and political 3 Commonwealth Bank of Australia v Friedrich & Ors (1991) 5 ACSR 115. committees-a-z/joint-select/ desire to hold individuals responsible According to his Honour: ‘As the professional-standards-in-the-banking- for failings that occur within an complexity of commerce has gradually industry/news/changing-banking-for- good-report/. organisation – is a worrying trend in intensified (for better or for worse) the community has of necessity come 14 [2015] FCA 589, [451]. corporate governance and, ultimately, to expect more than formerly from an ineffective way of improving the directors … In response, the parliaments quality of corporate decision-making. This is not to say that the conduct of * Ed Batrouney was one of four finalists who presented their essays to a directors in the event of corporate judging panel of The Hon. Susan Crennan AC, Crutchfield QC and The Hon. collapses and related events should Justice Digby QC. As the winner, Ed flew to London to present at the London not be closely examined. However, it 2016 International Commercial Law Conference. The London conference is vital that directors are empowered was a joint undertaking of CommBar, supported by the Victorian Bar, and to consider competing considerations the Commercial Bar Association of England and was convened at London’s when performing their duties and that Inner Temple on 29 and 30 June 2016. It is an exciting initiative of the the standards required of directors Melbourne and London commercial Bars and brought together commercial reflect the realities of collective dispute resolution lawyers from Australia, the UK and Asia. In addition to decision-making within publicly listed members of the two Bars, leading members of the judiciary and distinguished companies. It is therefore reassuring international arbitrators spoke at the London conference. that in ASIC v Mariner the Federal

70 VBN news and views Lament for ‘Cape’ Kennedy

The following poem by Campbell Thomson was short listed for the Peter Porter Poetry Prize and published in the Australian Book Review’s March edition. The poem was inspired by work Campbell did as a barrister appearing for applicants in a native title case in the Wimmera.

Djirritch Djirritch No foul play? the black and white What about the feller willy wagtail shot by the Namatji squatter fate’s messenger not far from where they built the mission church? did not tell me you’d gone What about Dick-a-Dick but your cousin phoned. left in Sydney to walk home after the first real Ashes tour? Kids walking to school What about Uncle Nyuk found you run down in his horse and cart flat on your back by the publican drunk and driving home? on the pavement frost What about Vicky and Bubbles eyes open farmed out to Namatji families looking for that emu in the Milky Way who tried and failed to make them white? but the coroner saw What about the bosses in Canberra now no evidence of foul play. whose law won’t recognise your lore along the river? I saw you leave the Dimboola Hotel at closing time Your bag of bones rots in a cheap coffin with half a slab in Dimboola cemetery the doctor warned against while you roam around Lake Wirregrin with your clapped out guts waiting for it to fill again at only half three score and ten for the Beal to blossom and seed but your missus wouldn’t let you see your son and for the black and white cockatoos what else was there to do. to fly the same way.

They haven’t taken down the pictures plastered on your bed room walls of Elle Macpherson smiling down over and over again and no one will stay there for a while but you pissed yourself laughing when the skies opened on your funeral in the middle of the worst drought in a century. I remember you skinny and shy beanie, ﬁve days growth and ‘fuck you’ painted on the uppers of your boots taking me up the river to show me the Bullitch bent over with age illustration by guy shield with the footholes chopped out by your great uncles climbing high for honey and on the other side the scar from where they’d peeled off a canoe.

VBN 71 Wigs on news and views news Wheels

MICHAEL SIMON, CONVENER WOW

n my capacity as convener of Wigs on Wheels (WOW), I have had the opportunity of reading the Victoria Law Foundation’s Bike Law booklet, which was published in December 2015. It is a booklet that provides new cyclists with a good knowledge of the road rules and instructions on how to rideI their bikes safely. Some more experienced cyclists will also benefit from the information provided. The numbers of cyclists has increased enormously in the past 10 years, with over one million Victorians now riding a bicycle every week. That often places bike riders and motorists in some conflict as to who has right of way on the roads. For example, on the weekends on Melbourne’s scenic Beach Road, there is a large number of vehicles all seeking to use the existing two lanes in both directions. A lot of accidents occur on that road partly due to a breach of road rules and partly caused by poor driving and poor cycling. Australians have not been overly committed to cycling until recently, which has meant that many motorists believe bikes should not be ridden on ‘their’ road. That situation is will enable cyclists to become better the penalty for running a red light is exacerbated by constant complaints informed and safer on the roads. now $425. From March 2017 there will that cyclists don’t pay road taxes. In Currently there is a campaign to be a penalty of $106 if a cyclist does Europe bicycles have been on the legislate that cars travel a minimum not carry identification on them whilst roads well over 100 years. Car drivers distance of one metre from a cyclist riding. It is WOW’s view that rather ensure that they wait until it is safe when overtaking, which is essential than impose fines, cyclists should be to overtake and the Europeans are to avoid accidents caused by both provided material such as the Victoria much more likely to give way to bikes and cars travelling too close Law Foundation’s Bike Law booklet cyclists. There are no calls for a bike together. WOW encourages every so they are aware of their obligations tax to be imposed. cyclist to support that campaign. and understand the complicated The Victorian legislation covering In New South Wales the government rules of riding. bicycles is not well known or has substantially increased penalties On page six of the booklet there understood by many cyclists. Bike Law for not wearing helmets to $319. And is a reference to obtaining bicycle

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About Wigs on Wheels Wigs on Wheels, or the Victorian Bench and Bar Bicycle Users Group, was established in 2008 with David Levin appointed its first convenor. The original purpose of WOW was to support cycling among members of the bench and bar and encourage the bar to provide more bike parking along with bathrooms for those who ride to work. WOW negotiated with Barristers Chambers and obtained additional bike parking in the carpark; bathrooms have also been added to Owen Dixon Chambers East on most floors. The group occasionally rode together, but now competes on a ‘friendly basis’ online, with each member recording the longest distance ridden, most elevation and highest average speed achieved each week. If you’re interested in finding out more about WOW contact Michael.Simon@ vicbar.com.au

Bike riding laws you may not be familiar with » You must give way to cars turning left at an intersection. » You must give way to cars leaving a roundabout. » If there’s a bike lane you’ve got to use it. » You must face forwards and have at least one hand on the handlebars. » You can’t hold a mobile phone while you’re riding. » You can do a hook turn at any intersection - unless a sign insurance. I recommend that if possible, but if not then ridden prohibits it. insurance be taken out, or that over carefully. Whilst I am not in » ‘Dinking’ a mate on your bike is cyclists join a bicycle network, which possession of any statistics, my illegal. provides insurance if a member is experience tells me many Victorians » You have to keep to the speed injured, if a member injures someone have fallen whilst riding over limit. else or if property is damaged by a Melbourne’s tram tracks. » You need lights and a reﬂector member. WOW also recommends that WOW highly recommends the if you’re riding at night or in bad all cyclists should have an ambulance publication and hopes that all cyclists weather. subscription. carefully follow the advice it contains. » You have to stop behind a tram at One matter not touched in the Safe cycling. a tram stop. booklet is tram tracks. They are a » You have to give way to You can read and download Bike Law curse for all cyclists especially in pedestrians on a shared path. at http://www.victorialawfoundation. the wet. They should be avoided org.au/publication/bike-law/read

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VBN news and views French Sabbatical

In the latter part of 2015, Michael and Penny Rush and their two children (Tom aged 9, and Sabina aged 8), spent ﬁve months living in France. Victorian Bar News asked Michael to contribute to this edition by reﬂecting on his experience.

n May 2006, after completing the quite long (8.30am to 4.30pm), and involved readers’ course and signing the roll of some adjustment from what they were used to counsel, I waited quietly in chambers in Australia, including having to sit down for a for my first brief to arrive. I soon lost three-course meal each lunchtime (including foie patience. I began asking my mentor gras on one occasion), learning to write in French questions about his recent adventure script, and being introduced to a rather different around Australia with his wife and three young pedagogical and disciplinary system. children. He spoke about the trip with such It was through our children’s school friends enthusiasm that, upon returning home that that Penny and I, in turn, met local families and evening, I immediately told Penny about it and became actively involved in village life. Because weI began hatching a plan: in 10 years’ time we of Veyrier’s proximity to Geneva, the town, would take a sabbatical and spend six months despite its size, was home to many young in Europe. professionals who were neither provincial in Over the subsequent years I became more their views nor attitude to us. That enhanced circumspect about this idea. I established a immeasurably our sense of belonging and practice at the Bar that I enjoyed immensely, overall enjoyment. and we had new responsibilities, including Veyrier’s proximity to Geneva and other parts children and a mortgage. Penny soon realised of Europe also facilitated weekend travel to that my doubts were creating inertia, and she took new and exciting places for Tom and Sabina. small, incremental steps to turn the idea On one occasion, after Saturday morning soccer, of a sabbatical into reality. we packed an overnight bag and asked the It was in mid-2014 that I first spoke to kids: “shall we have pizza in Italy tonight?” colleagues in a serious way about taking time The suggestion was met with great enthusiasm. off. Fortunately, I was, at that time, working with There were two particular standout aspects silks and instructing solicitors who were both of the trip. First, being able to spend time as a encouraging and obliging – despite the prospect family without the distractions of work or the that I might abandon them mid-way through usual demands on our time (including the driving the preparation of a case or on the eve of trial. from one sporting event or birthday party to Their advice to nominate a date and stick with another). Secondly, for me and Penny, having it was right. There would always be a reason to unstructured time to ourselves. To wake up and, equivocate and delay. As things transpired, a after walking the children to school, being free number of the cases I was working on settled to decide whether to indulge in a book, hike in or were adjourned. the mountains, have lunch together, or visit the We ultimately left for France in late August, market, among other possibilities. 2015. We lived in a small town called Veyrier-du- Our five months abroad passed quickly. I was lac, situated on the edge of Lake Annecy, about fortunate to be able to return to work in January 5km from the larger and historic town of Annecy to some cases I had previously been working itself. It was ideally situated in Europe; about 45 on. Other opportunities also emerged. It was minutes from Switzerland (and Geneva airport), apparent that I hadn’t been much missed, and a little over one hour from Italy, and a few hours many barristers and solicitors didn’t know I had to Germany or to Paris by TGV. Not only is the been away. Penny too, having resigned from her area visually stunning, but encourages a very job in July last year, has returned to work, and active outdoors lifestyle, of which we were able to Tom and Sabina are happily reunited with their take full advantage. old friends and familiar surrounds at school and Tom and Sabina attended the local primary home. That all tends to suggest another extended school, which was a challenge for them but trip, perhaps in a decade or so from now, might they coped admirably. The school days were be something to start planning for.

74 VBN VBN 75 LoreBAR Justice Scalia

TONY PAGONE

The famous jurist Justice Antonin Scalia of the Supreme Court of the United States of America, died on 13 February 2016, whilst still in ofﬁce. In 2011 Justice Scalia spoke at an advocacy conference hosted by the University of Adelaide. On that occasion Justice Tony Pagone delivered the following remarks by way of introduction. VBN is grateful for his Honour for permitting us to republish them.

t is a daunting privilege for me to introduce Justice Antonin Scalia. The task was given to me by Justice Tom Gray because of the coincidence that Justice Scalia and I both share a common ethnic background and a particular interestI in advocacy: that, no doubt, is where my qualiﬁcation for the task and our similarities end. What makes the task of introducing his Honour particularly daunting is that he comes with a formidable, and at times intimidating, reputation. It is also difﬁcult to know what one might say about his Honour to an Australian audience. His Honour has a rich and complex history, and has made a rich and complex contribution to American jurisprudence. Some of that is likely to be known by some in an Australian audience whilst others may know little about him. A good deal of what the public thinks it knows about his Honour may also be misinformed and perceived through the prism of politics, partisanship and prejudice. His Honour was born in New Jersey on 11 March 1936 and was an only child. His father, Salvatore, had arrived in America in 1920 at the age of 17 with his family from the Sicilian village of Sommatino. His father became a scholar of romance languages and taught his son, the future justice, “to value the words of a text”.1 His mother Catherine was born in the United States

76 VBN VBN 77 but was also of Italian heritage. In Love him or hate him, Antonin Scalia has had 1974 his Honour became an assistant greater inﬂuence on the way Americans debate the law attorney general of the United States today than any other modern Supreme Court justice. a few days before President Nixon’s

resignation.2 In 1982 President has had greater influence on the way was not under the sovereign control of Regan first appointed his Honour Americans debate the law today than either the United States or England?6 to a position on the appeals court any other modern Supreme Court in Washington DC and in 1986 After more sparring counsel justice. Conservatives hail Scalia as nominated him for the seat on the offered another argument the founding prophet of their true US Supreme Court which he continues introduced with “I’ll take one more faith – the Jurisprudence of Original to occupy. chance, Justice Scalia”. To which his Understanding – and the leader of His Honour’s role as a member Honour promptly replied: “Okay, try the opposition to moral relativism of the United States Supreme Court, them. I mean, line them up”.7 and judicial imperialism in the age and perhaps his personality, have A commitment to advocacy and of Obama. Liberals scorn Scalia as a placed him in the centre of many the careful crafting of words is not show-off and intellectual bully who of the great controversies of a great new. His biographer records accounts is quick to betray his constitutional nation. Many here will have heard of by his Honour’s colleagues from principles when they clash with his the incident with his Honour involving the 1970s of his Honour (then a fervent belief as a crusader in the then Vice President Dick Cheney young lawyer working in the Nixon culture wars.3 and a duck shooting expedition, administration), with fountain pen and of course most of us will be Much that is written about the fussing and fussing over language.8 aware of some of the controversy man often ascribes his views to His ease and mastery of words, and surrounding the decision in the Gore causes that may not bear close of their expression, create powerful v Bush case. Such controversies, scrutiny and which may brush aside and effective images that impact and the role of the Supreme Court the intrinsic strength of argument like a stealth bomber. His criticism in the United States, appear to have of his Honour’s positions. There is, of the use of legislative history to made his Honour somewhat of a in any event, no doubt that we have derive the meaning of a statute household name. Indeed, I came before us a man of some significance. provides an example. In a speech across an unexpected reference to The principal qualification for given in the mid-1980s his Honour him as I was thinking about what I his participation in this conference, noted that the use of legislative might say in this introduction. At the however, is not his political views or history as a technique for statutory time I was sitting in an airplane his role as a movie icon, but, rather, interpretation was relatively new on a long haul flight pondering this his skill, experience and advocacy of to the United States common law event and paying little attention to advocacy. His skills are legendary adding: a then recently released cop comic and by all accounts have at times Some creatures that seem pleasant and movie I had selected in the entirely been devastating.4 There are many tractable in their infancy – tiger cubs, accurate expectation that it would be accounts of his Honour sparring for example – are better abandoned undemanding. The film, “The Other with counsel in court and of the when they reach their full natural Guys”, has little enduring value but demolition of arguments presented by development. Now that legislative early in the film includes a reference skilful advocates in their own right.5 history has reached its adulthood, to Justice Scalia. The reference to his It is hard not to have an envious perhaps it is time to reconsider whether Honour was fleeting but enough to admiration for the fresh directness we want to live with it.9 show that his Honour is an icon to of some of the exchanges between some as an influential conservative in his Honour and counsel appearing His Honour may not have used modern American life. in the Court. In the 2007 case testing many words in that passage, and There seems no doubt that his the constitutional rights of prisoners his technical legal analysis may Honour has become an icon in the in the US naval base at Guantanamo have been economically brief, but eyes of friend and foe. It is hard Bay in Cuba his Honour’s blunt and what was conveyed in those few to pick up any reference to him, direct question to the former US words was a sense that a technique his judgments or his extra judicial solicitor general was this: of legislative interpretation was writing that does not reflect a strong both dangerous and uncontrollable Do you have a single case in the 200 view for or against him. The New York but that its supporters may see it years of our country or, for that matter, Times of 3 January 2010 carried an naively as friendly and tameable. in the five centuries of the English article by Jeffrey Rosen which began: Such command of language has empire in which habeas [corpus] was had a powerful effect upon US Love him or hate him, Antonin Scalia granted to an alien in a territory that jurisprudence during his Honour’s

76 VBN VBN 77 Such command of language has had a powerful effect upon US jurisprudence during his Honour’s tenure on the Supreme Court.

tenure on the Supreme Court. A dominant theme in US discussion or advice about the single most important constitutional jurisprudence has been the extent to skill of advocates: ambush and surprise. I only mention which the written instrument must be read to give effect that because in these introductory remarks about his

bar lore to its original intent.10 In some respects the kernel of Honour I have not been able to foreshadow what his that debate was put by Justice Scalia when he asked Honour may be saying to us: that is to be our surprise rhetorically: Would anyone vote for a constitution and in that tactic we see again his Honour’s great which said: mastery and skill of the art. We are very privileged indeed to be hearing from someone who has made so Those general norms set forth in this document … do not refer to close a study of the art and who himself has been so the people’s current understanding of what is embraced by those effective a practitioner of the art. terms, but rather shall bear the meaning assigned, from time to time, by unelected and life tenured committees of lawyers.11 1 Joan Biskupic, American Original (Sarah Crichton Books, 2009) 17. By referring to these passages I would not wish to be 2 Ibid 33. thought to be agreeing with him. Whether I do or not is, 3 Jeffrey Rosen, “A Man of Influence,” The New York Times, 3 of course, wholly irrelevant. My point is rather to draw January 2010. attention to the skill with which his Honour directed debate 4 E. Lazarus, Closed Chambers (Random House, 1998) 276. and analysis by the choice of words and by their expression. 5 Biskupic, above n 1, 213-15, 300-17. It is a skill that his Honour has exercised with 6 Ibid 311. legendary wit and self confidence. His biographer 7 Ibid 311. recorded an exchange between Senator Specter and 8 Ibid 89. 9 Ibid 94. Justice Scalia before his confirmation hearings. His 10 Antonin Scalia, A Matter of Interpretation (Priceton, 1997). Honour was making a courtesy visit to the Senator before 11 Quoted in New South Wales v Commonwealth of Australia (2006) the hearing and the Senator had thought of asking the 229 CLR 1, [772] (Callinan J). nominee a question that might stump him. The question 12 Biskupic, above n 1, 118-9. was, “What is the difference between a shifting use and 13 A. Scalia and B.A. Garner, Making Your Case: The Art of a springing use”. The nominee’s answer as recorded by Persuading Judges (Thomson/West, 2008) Senator Specter was as follows: Well, I’ll tell you, Senator. It’s like these two guys who were riding in taxi cabs that had a collision in mid town Manhattan. And while the drivers were exchanging information, the passengers started to talk. And one said, “What do you do?”. And the other guy said, “I’m a lawyer”. The first passenger said, “Hey that’s interesting. So am I. Where do you work?”. “I work on Wall Street”. “Hey, you know, I do too. Which firm?”. The other passenger named a firm. The other passenger rejoined that he worked there also adding “I’m in property law section”. “I’m in property, too. What do you do?”. “Shifting uses”. “Well, that’s why I don’t know you: I’m in springing uses”.12

According to Specter the answer had the effect of making him forget the question. It also had the effect, through humour and personality, of controlling the discussion. A few years ago, Justice Scalia joined with Professor Bryan A Garner to co-author a book on advocacy.13 In it the authors provide valuable guidance on the art of persuasion by unpicking and laying out for view and analysis the techniques, elements and material which together make up the process of persuasion. It provides an invaluable guide for advocates in any jurisdiction. The book reveals a deep and close attention by the authors to advocacy in all of its detail and precision. The one omission, and it is a large omission, is the absence of any

78 VBN VBN 79 A step back in time bar lore From the archive of past editions of Victorian Bar News.

From the Winter edition of Victorian Bar News, 1981: THE JABOT

We were very taken with the sight of She has been kind enough to send Will the jabot be worn by members Gibbs C.J. on the cover of Autumn the pattern to us. of the bar assuming its advantages? ‘81 Bar News wearing his jabot. Was Lady Aickin explains that the great That depends of course of its it really so much more convenient advantage of the jabot is that no special reception by the judges on its being than the butterfy collar and bands? shirt is required. Presumably one frst worn. Judges assume the Sir Harry apparently got the idea could wear under it a T -shirt or no power to regulate the dress of those of the jabot from judicial collegues shirt. The size of the neckband suffces who appear before them. Horrifc in South Africa. On his return he for a collar. It is highly recommended stories have fltered through, of canvassed the idea amongst his for those who expect to ft multi English barristers here wearing garb brethren. luncheon engagements between court acceptable in British courts being Lady Aickin ran some up by way appearances. It would then be simply a taken to task because a judge picks of experiment. After implementation matter of jabot off, tie on. up a stripe or two in the small part of the Justices’ suggestions, she We understand that Mr. Ravensdale, to be seen of the body of the shirt developed the design presently worn the regalia man, sells the jabot for material. by the High Court bench. $22.00

VBN 79 From the Winter 1981 edition of Victorian Bar News: A NECESSARILY SHORT HISTORY OF WOMEN AT THE BAR

midst the 300 pages of There are many legal ladies in “Married. Mrs. G. Reid. Died

bar lore Arthur Dean’s “A Multitude practice in Melbourne but rarely is 14/6/72.” A of Counsellors: A History one of them seen in Court”. Margery King joined the Bar on the of the Bar of Victoria”1, the topic Another paper noted: 11th May 1932 as number 290 on the of women at the Bar is covered Looking trim and business-like, Bar Roll. She was removed from the defnitively as follows:- and not the least bit incongruous, Roll at her own request on the 10th “This period (1921-1939) marks Mrs. Rosanove, nee Joan Lazarus, March 1939. She too had married. the arrival at the Bar, of the frst appeared as Counsel in the Upon her return to the Bar in 1949, woman Barrister. Mrs. Joan Practice Court today. Joan Rosanove read with Edward Rosanove signed the Roll in 1923, Her brother barristers cast Ellis. When he subsequently moved but she returned to solicitor’s approving glances upon her as to practise in Western Australia, practice in 1926, to return to the she strolled into Court in the she took over his room in Selborne Bar in 1949, and she has since conventional wig and gown of the Chambers, where she had been remained on the Roll, taking Silk profession. Later, when she argued unable to obtain accommodation in 1965. Miss Beatrice McCay her case before Mr. Justice Mann, during her previous time at the Bar. signed the Roll in 1925, but she admiration of her eminently legal Her frst case, upon her return, was left on her marriage to Mr. G. Reid, mind was added to admiration of a few days after signing the Roll. She the present Victorian Attorney- her appearance. appeared in the Divorce Court before General. Miss Marjorie King signed It was frankly admitted that she Mr. Justice Dean with whom she had the Roll in 1932, but she, too, was there on terms of equality - even been admitted to practice in 1919. married and left the Bar.”2 superiority in many cases - with In 1959, Allayne Kiddle signed the The author’s succinct coverage of members of the stronger sex. Bar Roll (Number 599). It is noted the topic is not surprising given that “In her frst High Court appearance, that she transferred to the non- the work was published in 1968, at as a young barrister, Mrs. Rosanove’s practising list on the 21st July 1966. which time only eight women had unique position at the Victorian Bar M.C. (Molly) Kingston (Number ever signed the roll as Barristers in was summed up with the concise 655) admitted to practice in 1933, Victoria and accordingly, did not then wit, which was her hallmark. As only signed the Roll on the 8th February constitute a class worthy of defnition junior Counsel appearing without 1962 and read with Asche, now or analysis. a Leader and in response to playful Mr. Justice Asche, Senior Judge of Joan M. Rosanove was admitted to questioning by a senior member the Family Court of Australia. She practice on the 2nd day of June 1919 of the Bar to the following effect, enjoyed a busy practice until her and was the frst woman to sign the “And with whom is my learned retirement of the 30th November Bar Roll on the 10th September 1923. friend appearing?” she replied “I 1978. It was during this period, She took No. 207 on the Roll. Her am appearing with myself. I am the on the 16th November 1965 and biographer, Isabel Carter in “Woman leader of the female Bar”.5 after many applications, that Joan in a Wig: Joan Rosanove, Q.C.”3 On the 23rd April 1926, Joan Rosanove became Victoria’s frst records that her frst appearance Rosanove’s name was, at her own (and to date, only) female Queen’s was in a divorce application in the request, removed from the Bar Roll. Counsel. (In South Australia, Roma Practice Court, some seven weeks She recommenced practising as an Mitchell had taken Silk in 1962 after signing the Roll and that it was amalgam at Westgarth, until signing to become Australia’s frst female reported by the “Evening Sun” as the Roll again subsequently, as Queen’s Counsel, and later in 1965, follows:- Number 428 on the 7th October 1949. she became the Commonwealth’s frst “Looking very attractive in a neat During her absence, only two other female judge.) It was also during this bombazine gown and wearing women had joined the Victorian Bar. period that what had previously been the traditional wig and white Beatrice (Bixie) W.McCay, had signed a mere trickle of women commencing bands, Mrs.Joan Rosanove, nee the Bar Roll on the 10th June 1925 to practise at the Victorian Bar, Lazarus, caused quite a futter in and was number 224 on the Roll . became a, steady, though modest, the Practice Court today when she Miss McCay remained at the Bar for fow. rose to make an application to a only a few years, the entry beside her Anne Curtis signed the Bar Roll pending divorce suit. name on the Roll notes simply:- on the 25th July 1963, “resigning”

80 VBN (according to the notation beside her or presently . Whilst it appears that, in the area of family law, such is no name on the Roll) on the 21st April compared with their male colleagues, longer the case, as women begin to 1966. Then followed Lynette R. Opas a disproportionately low percentage excel in any chosen area of practice.

who, signing on the 12th October of women admitted to practice in this Similarly, whilst almost folkloric bar lore 1967 as Number 832 on the Roll, is State has in past joined the Bar. The stories abound of women barristers in currently the most senior practising continuing increase in the number lace collars, or coloured stockings not female barrister at the Victorian of women graduates, together with being “seen” by some members of the Bar. Like Kingston, Opas read in the the vast and consistent increase in judiciary, robing room dilemmas and chambers of Asche. the number of women joining the Bar discrimination of every genre, such On the 21st March 1968, Paulette during the past six years, suggests a will necessarily fade as by sheer force D. Parkinson, (nee Bisley) joined healthy and irreversible trend to the of numbers woman at the Bar are no the Bar. Two more women joined contrary. The natural extension of this longer a recognisable minority group. in 1970, one Fay M. Daly who trend is undoubtedly that the number One can take heart from the Bar remains in active practice, the other of women at the Bar in Victoria, Dinners of 1980 and 1981. If in 1980, R.M. Armstrong, a parliamentary will in the near future, be directly Mr. Junior Silk commenced with Counsel. In November,1971, Jan commensurate with the number “Gentlemen.....” and in 1981,with the Lewis (later Wade) signed the Roll as a of women admitted to practice in inclusion of “Bar persons.....”one can Parliamentary Counsel. She remains Victoria. look forward to 1982 for a simple and on the Roll although she was, on The sudden swell of women at the apt “Members of the Bar. ....”. the 9th November 1979 appointed Bar in recent years is evident. What a DESSAU Commissioner for Corporate Affairs. purely empirical study does not reveal, 1. FW. Cheshire Publishing Pty. Ltd. Shortly after, in December 1971, however, is the changing attitude of 1968 Katherine P. Hurst joined the Bar. She women and to women, at the Bar. 2. ibid. at page 192. is most remembered walking with her Whilst in the past female barristers 3. Lansdowne Press Pty. Ltd. 1970. two German Shepherd dogs between had been expected and indeed may 4. ibid. at page 34. chambers and the fat she rented in have expected, to practice exclusively 5. ibid. at page 36. Lonsdale Street, until her death in May 1976. In 1972, Mary Baczynski, B. M. Hooper and Margot Rosenbaum signed the Bar Roll, the latter being removed at her own request on the 27th October 1977. BA Cotterell and L.Lieder commenced in 1973, Marie McRae in 1974 and J.L. Sparks, Betty King and Margaret (R.M.) Lusink (Joan Rosanove’s daughter and Mrs. Justice Lusink on the Family Court of Australia since 1976) each signed the Roll in 1975. Since 1975, there has been a relative inundation of women joining the Bar. For the frst time in the history of the Bar, consistent numbers of women have commenced practice. In 1976, seven women signed the Bar Roll, a further four women in 1977, eleven in 1978, seven in 1979, thirteen in 1980, and to date, seven in 1981. There are currently 53 women on the Roll in Victoria. The Law Institute of Victoria has not compiled statistics as to the number of women practising as solicitors in this State, in the past

VBN 81 OF Back THE lift Adjourned Sine Die

OF Victorian Bar News acknowledges the retirement of Back THElift the Hon. Michael Rozenes AO QC as Chief Judge of the County Court. In this Back of the lift section of A tribute will be published in the next issue the Victorian Bar News, the Bar acknowledges the appointments, Federal Court of Australia retirements, deaths and other honours of past and present members of our Bar. The Hon. Justice Shane Marshall Bar Roll No. 1672 Adjourned Sine Die 82 Lalor at the Eureka Stockade and Federal Court of Australia died of wounds received. The Hon. Justice Shane Marshall His Honour’s appointment to the BY PETER HEEREY 82 Federal Court in 1995 coincided Supreme Court of Victoria with appointment to the short- The Hon. Justice Betty June King lived Industrial Relations Court of BY VBN 83 Australia. (Fortunately the concept of super-specialised courts, like Silence All Stand 84 fairground booths, seems to have Supreme Court of Victoria been abandoned.) The Hon. Justice Andrew Keogh His Honour’s work on the Federal BY MELANIE SZYDZIK 84 Court was largely in the industrial Federal Court of Australia area, although he sat on important The Hon Justice Mark Moshinsky environmental cases in Tasmania and GREG AHERN 84 n 21 November 2015, Shane a major native title case in Western Federal Circuit Court Raymond Marshall retired as Australia. His Hon. Joshua Douglas Wilson QC a judge of the Federal Court of In recent years he was the BY STEWART M ANDERSON 85 Australia after 20 years on the Court— Federal Court judge responsible for His Hon. Judge Alister Ronald McNab Oone of the longest periods of service Tasmania and was very popular with BY DENIS MEEHAN 86 since the Court was established in 1976. the profession and court staff “down Her Hon. Judge Jillian Williams His Honour was educated at that south”. BY HELEN DELLIDIS 87 rich source of legal talent: St Bede’s In the words of Law Institute of College, Mentone (think Justice Tony Victoria President Katie Miller, Vale 87 Cavanough, Justice Kevin Bell, Judge speaking at his farewell ceremony Thomas Victor Hurley David Brookes, Neil Young QC, Tony last November, as a judge his Honour BY ANDREW N. BRISTOW 86 Southall QC, Michael Fleming QC). was “fair, courteous, respectful and The Hon. John Augustine Keely QC After completing degrees in law smart”, a verdict that would be BY PATRICK DALTON 87 and economics at Monash University, echoed by members of the legal His Hon. Judge Leo Lazarus where his Honour’s thesis was on the profession who appeared before him. BY RON MELDRUM 87 topic of discrimination on the grounds In the course of his judicial work, his John Fraser Roberts BY GRAHAM HARRIS 88 of union membership, he served Honour became much involved with Gonged 88 articles at Maurice Blackburn & Co and legal and judicial education in Timor- practised as a solicitor before signing Leste. His Honour has also spoken Victorian Bar the Bar Roll on 19 November 1981. out frankly on the largely overlooked Readers Course 89 With that background, it is perhaps problem of mental health issues in the not such a surprise to learn that legal profession and the courts. his great-great-grandfather, Peter In his spare time his Honour is a Alexander, fought alongside Peter supporter of the Collingwood Magpies.

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I scoured my thesaurus to find an may, like South Melbourne and adequate adjective: “keen”? “avid”? Fitzroy, leave Melbourne. It could Silence “zealous”? “fanatical”? “maniacal”? become the first international AFL None seemed to do justice to his team, playing as the Dili Dashers. all stand devotion to the black and white. The Bar wishes his Honour a long It may be no more than a dream, and active retirement. Supreme Court of but perhaps one day Collingwood PETER HEEREY Victoria Supreme Court of Victoria The Hon. Justice Andrew Keogh The Hon. Justice Betty June King Bar Roll No 3271 Bar Roll No. 1177 ustice Andrew Keogh is the youngest of six children to That self-deprecating label comes Kathleen and Victor Keogh. He nowhere close to encapsulating her wasJ educated at St Joseph’s College, Honour’s distinguished career. But Mildura, before moving to Melbourne to stay on banning for a moment: in to study economics and law at Monash a rare interview given to the Young University. Lawyers Section of the LIV, her After graduating, his Honour cut Honour recalled being thrown out of his teeth as a lawyer in country New court for wearing a pale green suit South Wales and Victoria, practising with matching stockings and shoes. there for more than a decade before Her Honour was educated at coming to the Victorian Bar. University High School. She then His Honour commenced the Bar studied law at Melbourne University. readers’ course in September 1998, She joined the Bar in the year reading with Tim Tobin.. following her graduation. In his early days at the Bar his Her Honour became the first ability in the VCAT jurisdiction earned etty June King QC retired female prosecutor in Victoria in 1986 him the sobriquet ‘The Professor’. On as a judge of the Supreme and was later appointed the first any given day, he would have multiple Court of Victoria on 14 female Commonwealth prosecutor. briefs in more than one list, and likely August 2015. In 1992 her Honour was appointed in all five. His prominence in that area BForty years earlier, at the age of Queen’s Counsel. She was once again led to the introduction of the ‘Keogh 24, her Honour had become the 24th among the first women to obtain the amendment’ limiting the number of woman to join the Victorian Bar. distinction. During the late 1990s, lists in which a practitioner could be Ironically, her Honour gained a her Honour became a member of briefed on the one day. measure of celebrity during her the National Crime Authority and Throughout his time at the Bar, 10 years’ service on the Victorian chaired it during her commission. Justice Keogh’s understated style was Supreme Court for preventing the In 2000, her Honour was appointed used to maximum effect. His calm, television series Underbelly from as a judge of the County Court of forensic cross-examination undid airing during the trial of one of Victoria. Her Honour served in many a witness, drawing a sequence its protagonists, Carl Lewis. (Her that role until her elevation to the of concessions before the end point Honour later spoke out against Supreme Court of Victoria on 21 June dawned on the witness by which time prominent defendants, their family 2005. it was, of course, too late. members, and judges being treated At the end of her interview with His Honour took silk after only 11 as celebrities.) For this, and her the LIV, her Honour remarked, years, in 2009. His last major case was prohibition of the airing of an “Unprepared is the worst thing you the Kilmore bushfire class action, episode of Today Tonight featuring can be”; then she added, “And don’t Matthews v AusNet, which at nearly Judy Moran and Carl Lewis’s mother forget to shine”. No doubt her Honour half a billion dollars was the largest during the trial of Evangelos Goussis will continue in this spirit in her life class action settlement in Australian for the murder of Lewis Moran, when after the law. The Victorian Bar News history. The case was massive and addressing the jury trying Goussis’s joins with the Bar in congratulating complex, legally and factually. Before case, she called herself the “queen of her Honour on her retirement. the settlement, the litigation involved a banning things”. VBN fiercely contested 16-month civil trial.

82 VBN VBN 83 At his Honour’s welcome, he described of them. His Honour is a committed His Honour’s practice flourished it as a “once in a career” case that was Tigers fan, a clear indicator of his loyal from the start and he very quickly “near the death of him”. His Honour and patient nature, good humour and became a favoured junior of many of back of the lift back was instructed by the plaintiffs and tenacity, attributes that will no doubt the leading silks at the Bar. his role was primarily focused on serve him well in his new role. His Honour’s abilities as a superior the scientific and technical expert MELANIE SZYDZIK court advocate in his own right were evidence, on which he was opposed by also demonstrated very early on in Jonathan Beach QC, now Justice Beach Federal Court of his career, including appearing unled of the Federal Court. (in 2001) against a leading silk and That scientific evidence involved Australia prevailing in an application heard over 10 experts, many of whom were The Hon Justice 6 days before Warren J (as she then the international leaders in their was) and making (in 2002) the reply field, covering areas as diverse as Mark Moshinsky submissions in the High Court in the metallurgy, fracture mechanics, Bar Roll No 3026 case of Austin v The Commonwealth civil engineering and involving due to his leader in that case being n Tuesday, 3 November 2015, very advanced modelling. It was of appointed to the Supreme Court Mark Moshinsky QC was sworn such extreme complexity to warrant during the interval in the hearing of in as a judge of the Federal the trial judge, Justice Jack Forrest, that matter. His Honour’s leader was Court. At his Honour’s welcome appointing two eminent independent Geoffrey Nettle QC (now Nettle J of Oon 11 November 2015, Allsop CJ scientific expert assessors to assist the High Court). remarked that his Honour was the him. Keogh SC – it might be said In 2007, after 12 years at the Bar first Federal Court judge to be sworn unhindered by a formal science his Honour took silk and seamlessly in on Melbourne Cup Day and said education – managed to master the transitioned from a leading junior to a that, in his opinion, this disregard for technical details of the case to the leading silk. In the short time that he public holidays and horse racing were admiration not only of his colleagues was able to take readers, his Honour admirable judicial traits. but also such that after the trial he had four, (Michael Borsky, Michael His Honour has outstanding received congratulations from one of Rush, Aaron Weinstock and Albert academic qualifications. From being the eminent experts instructed by the Dinelli). dux at Wesley College, his Honour primary defendant. As silk, his Honour appeared in the completed a first class honour’s degree His Honour made a very significant Supreme Court, the Federal Court and at Melbourne University, winning the contribution to the Bar, serving on the High Court in matters in the fields Supreme Court Prize in 1988. After the Committee of the Common Law of constitutional law, administrative being awarded a Rhodes Scholarship, Bar Association for 10 years. He law, taxation, superannuation, his Honour attended Oxford also served on the Lennon’s List competition law, intellectual property, University where he obtained a BCL Committee, including through some human rights and commercial law. in 1991, again with first class honours. challenging times. He chaired that His Honour’s experience and areas of His Honour was an articled clerk Committee from 2013. expertise made him eminently suitable and then a solicitor for 2 years at His Honour was always gracious, for appointment to the Federal Court. Arthur Robinson & Hedderwicks (now generous and approachable. His The many notable cases in which his Allens Linklaters). chamber’s door was described as Honour appeared, both as a junior His Honour signed the Bar Roll on a revolving one given the many and then as silk were referred to in 30 November 1995 following the birth barristers that would drop in for the addresses given by the profession earlier that day of his first daughter, advice and guidance. He was an at his Honour’s welcome and are not Danita (now a law student). The excellent mentor, always willing to repeated here. A visit to the Federal challenges of balancing family life help and offer sage advice. Court website to read the transcript of with a busy practice were concepts Outside of the law his Honour is a the welcome reveals not only details not unfamiliar to his Honour given keen runner, cyclist and tennis player. of these notable cases but the humility that he and his two brothers had He is also ferociously competitive and modesty shown by his Honour in grown up watching their mother, Ada at table tennis and his joy in victory his response. Moshinsky QC (now retired), do just has been described by some as His Honour’s final appearance as that throughout her successful career. unjudicious. His Honour is married silk was in the 2015 Victorian Royal His Honour’s particular interest to Rebecca Dal Pra of our Bar. He has Commission into Family Violence in the areas of constitutional and three children, none of whom have where he appeared (with two juniors administrative law led him to read followed him into the law, instead of our Bar) as counsel assisting with Susan Kenny (now Kenny J of the choosing engineering, the arts and the Commission. The Commission, Federal Court). aeronautics. He is immensely proud chaired by the Hon Marcia Neave AO

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(formerly Neave JA), heard evidence of knowledge, wisdom and experience. when they were called and the party from some 219 witnesses over a five All those who appear before his for whom he appeared. week period. Honour will know that, whatever the His Honour soon developed a In addition to his busy practice, result, they will be fully heard and that reputation as a hardworking and his Honour made a significant and they and their clients will be treated astute advocate. That led to briefs in sustained contribution to the Bar. His with respect and courtesy. substantial causes and arbitrations. He Honour was a member of the Bar His Honour’s appointment took was briefed to appear with John Digby Council from 2006 to 2011 and its place a few months after his 50th QC (now Justice Digby of the Supreme Chairman from 2010 to 2011. During birthday and followed a distinguished Court) in the long-running commercial his Honour’s time on Bar Council he 20 year career at the Bar. His Honour arbitration over the construction of was involved in the development of has a strong and demonstrated Parliament House in Canberra. His a five year strategic plan for the Bar, commitment to public service. He Honour’s skill and hard work led to the preparation of a report on the will undoubtedly make a significant many subsequent briefs as junior to civil justice system and the purchase and lasting contribution to the John Digby QC. of Owen Dixon Chambers West. Federal Court, of which the Court, the His Honour was also a versatile Significant projects during his year as profession and the wider community advocate and was briefed to appear Chairman of the Bar Council included will be the beneficiaries. with Ross Robson QC in the Avco the introduction of a revamped GREG AHERN Financial Services licence hearing. Bar readers’ course, a review of the This was a challenging brief, which clerking system and the holding of Federal Circuit Court required him to be across the minute the inaugural Victorian Bar CPD detail of a vast number of loan files. Conference. His Hon. Judge Joshua His Honour’s diligence and hard work His Honour was also a reporter for Douglas Wilson QC ensured that his leader had all the the CLRs from 1998 to 2007 under material needed to obtain their client’s Bar Roll No 2124 the editorship of Jim Merralls AM QC. credit provider licence. The Parliament Indeed, his Honour is the 25th reporter r Joshua Douglas Wilson House arbitration and the Avco licence of the CLRs to be appointed to a QC signed the Bar Roll in hearing led to his Honour developing superior court. March 1987 after having lifelong friendships with Ross Robson While conducting a busy practice, been associate to the Honourable and John Digby. his Honour also found time to make a DJustice Marks and, before that, a Whilst maintaining a busy practice, contribution to academic life through solicitor with Arthur Robinson & Co his Honour also managed to undertake teaching at Melbourne University, (now Allens). a Master of Law and then a PhD, with including co-teaching as a Senior His Honour read with Ross a thesis in extradition law. Fellow with Stephen Donaghue QC in Robson QC (now Justice Robson of He took silk in 2008 and quickly both 2013 and 2015, a week intensive the Supreme Court) and quickly developed a broad leader’s practice Masters Course in the aptly named developed a busy commercial in commercial law, as well as subject Judicial Power in Australia. practice. common law. His Honour was a great Outside of the law, his Honour The late 1980s and 1990s were contributor to the Bar through his enjoys a very close family life with heady days at the Commercial Bar teaching of advocacy to the readers’ wife Sidra and their daughters and his Honour was at the centre of course and to the Victorian and New Danita, Amira and Hannah of whom all that activity. It was not unknown South Wales Bars, as well as teaching his Honour spoke with pride and for him to attend commercial list at the English Bar. admiration in his response. The directions hearings on a Friday with Whilst the Bar has lost an able and closeness of his Honour’s relationship at least six briefs under his arm. He honourable advocate, the Federal Circuit with his parents, siblings, parents- would arrive in chambers early on a Court has gained an astute legal mind, in-law and extended family was also Friday morning and prepare a list of whose work ethic and fairness will be a clearly evident at the welcome. His the briefs that he had that day so that great asset to that Bench. Honour and Sidra are vibrant and he could keep track of the matters STEWART M ANDERSON engaging conversationalists and share a keen interest in books and art. His Hon. Judge Alister Ronald McNab His Honour is measured, Bar Roll No 2005 disciplined, courteous and calm as well as being unfailingly polite and patient. ometimes choirboys from St accomplished musician, playing In addition to having a disregard for Pauls’ cathedral become judges. clarinet, flute and especially the public holidays and horse racing his Young Alister McNab did. saxophone. And spending most Honour has the essential judicial traits SBut not before becoming an Tuesday nights at The Rising

84 VBN VBN 85 Sun hotel in South Melbourne, with articles at (then) Williams a role model in her now 90-year-old lending his talent and passion to a Winter and Higgs from 1986 to 1987. mother, who forged a successful career sensational big band. Or playing with He was admitted to practice in 1988 outside of the home. Her parents’ back of the lift back the Lex Pistols, or more recently and signed the Bar Roll in 1990 encouragement of focus and hard work the Melbourne Lawyers Orchestra. reading with Peter Murdoch QC. has been pivotal in a life characterised Along the way performing with the His impressive practice has by industry and dedication. likes of Al Martino, Ricky May and been a varied one. Commercial law, It is an admitted fact that as a James Morrison. Enthusing his many discrimination law, human rights, student her Honour would read the friends and family with his love of insurance, trade practices and dictionary as recreation. This love of everything from the baroque to jazz. especially industrial law. He appeared words and reading saw her graduate So, too, he developed a passionate regularly in the Federal Court, from the University of Melbourne in addiction to crime fiction, and Federal Circuit Court, Supreme Court, 1982 with a Bachelor of Arts and a much else. His friends regaled with County Court, Magistrates’ Court, the Bachelor of Laws. observations of works by Jonathan Industrial Relations Commission, Fair Articled to the great Leon Gorr, a Franzen, Nicholson Baker or David Work Australia and the Victorian Civil senior taxation partner at Herbert Sedaris. A copy of the New Yorker and Administrative Tribunal. Geer & Rundle, her Honour began always on hand, or a work by William He is held in high esteem by all her career in commercial practice Morris on the Arts and Crafts who know him in the profession. He but her interest in human stories Movement. was a popular and valued member saw a gradual move into family law. Epicurean interests arose. A of Aickin Chambers, attested to by As a solicitor her Honour had broad Chinese cooking course with the his room there now to be used for experience in both city and regional famous Elizabeth Chong undertaken conferences and called “The McNab law firms, including as partner for at her home. Equipment acquired Room”. He was a fearless advocate, many years with her husband John and techniques perfected for the thorough in his preparation and Williams, now barrister, in their law smoking of meats and fish. Sausage attuned to the needs and concerns of firm on the Mornington Peninsula. casings filled. A discerning familiarity his clients. In private practice her Honour was developed with Melbourne’s less He shared his legal expertise a member of the Victorian Law pretentious restaurants. And with students through the lecture Institute’s Children and Young becoming an aficionado of offal and programs at the Melbourne Business Persons Committee and a founding founding patron of the (now defunct) School and lecturing in Indonesia Chair of the Child Representative North Melbourne Organ Meats on intellectual property through a Subcommittee. All this while Festival. Department of Foreign Affairs and raising two children, establishing a There grew a love of gardening and Trade funded project. successful local winery and reducing a knowledgeable appreciation of the He is a valued mentor and friend her golf handicap to an enviable 18. layout and plantings of Melbourne’s to many. In 2005 her Honour was appointed magnificent public parks and Judge McNab will bring a wealth of as a Registrar of the Family Court and gardens, from which inspiration (and legal and life experience to the court. the then Federal Magistrates Court. cuttings) were taken to create his We congratulate his Honour on his In recognition of her work ethic and own beautiful home garden. appointment, and wish him well. diligence, her Honour was given the A gap year included work at a pub DENIS MEEHAN serious responsibility of Magellan in Aberystwyth Wales. It determined Registrar, working with judges in his future. Several men gathered at the Her Hon. Judge Jillian cases involving allegations of sexual bar wore immaculately tailored suits. Williams or serious physical abuse. Her Honour On learning they were lawyers, young also served as Secretary of the Family Bar Roll No 4120 Alister had found his calling. Few Law Rules Committee, undertaking can rhapsodise so lyrically about the n 29 February 2016 Jillian important policy and practical work functionality of the double-vented suit. Williams was sworn in as a with judges and the Commonwealth Then marriage to Lisa and the birth Judge of the Federal Circuit legislative drafting office. of three children: Stella (16), Daniel Court of Australia, which, being a Upon coming to the bar in 2008, her (14) and Roy (10). And the realisation Oleap year, made it 33 years to the day Honour read with Joe Melilli and Ian that children teach as well as learn. since she was admitted to practice on Mawson QC and swiftly established a On 18 May 2016, Alister Ronald 1 March 1983. busy practice, developing a reputation McNab was sworn in as a Judge of Born in Sydney at a time when for carrying the pressures of difficult the Federal Circuit Court. women were not expected to seek and complex cases lightly and with Braided together with his rich life achievements beyond the domestic grace. The many Senior Counsel to has been a legal career commencing sphere, her Honour had the benefit of whom her Honour was either junior

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or opposed speak of their high regard for the SRC. He was elected to become revealing a hitherto unknown talent for her meticulous preparation and the education vice-president of the with his hands. fearless advocacy. As a barrister, her Australian Union of Students. Tom was Tom’s practice was general in that Honour was a generous contributor seen as a genuine person. Tom was he would do all types of civil work to the Bar, serving as chair of the Paul able to straddle the various factions throughout his career. As a result of Holmes List Committee and serving in and was seen as a person of integrity. his work as editor of the Victorian the Committee of the Family Law Bar Tom did his articles at Russell Administrative Reports, his practice Association. Kennedy and Cook. He was admitted tended in the last few years to be The speeches at the welcoming to practice as a barrister and solicitor in immigration law, almost always ceremony recognised her Honour’s in March 1979. Tom came to the Bar acting on behalf of the refugee/ intellect, integrity and compassion, and read with Roger Gillard QC, immigrant. In doing this, Tom qualities that made her a respected signing the Bar Roll in March 1980. always acted with compassion and member of the legal community and He was for many years the editor often pro bono. In 2012 he won the will serve her well on the bench. of the Victorian Administrative Ron Merkel QC award for pro bono The Bar wishes her Honour Reports and the High Court and work. This pro bono work often led success in the challenges of her new Federal Court notes distributed to him to the High Court, representing role and hopes that she continues the constituents of the Law Council the applicant. to find time to enjoy the quiet of of Australia. He also edited the Whether as a barrister or colleague reading, golf and walking her dogs. Federal Court judgments in the Law Tom always acted in his unique and HELEN DELLIDIS Institute Journal. most charming way with his unique At the start of his life as a barrister, personality. Even defending a rapist/ Tom was part of a group of young murderer who had come to Australia Vale barristers on the sixth floor of Four as a 2-year-old, and was due to be Courts Chambers. He then was part deported at the end of his sentence, of the tenth floor of ODCW from its Tom would describe him as “not a inception in 1986 and remained there bad bloke”. Tom’s “fault” was that he Victorian Bar News acknowledges until his death. could see good in all people. the death of Ross Ray QC, a former Tom became stage manager for Tin Tom’s unique character and chairman of our Bar. An obituary will Alley Players, with productions of Six personality made him a personality be published in the next issue of VBN. and a Bit Wives of Henry VIII and Dr of the Bar. The Bar and the legal Jekyll & Mr Hyde. profession have lost a character in Thomas Victor Hurley In 1984, Tom stage managed the the death of Thomas Victor Hurley. Bar Review, and made all the sets, ANDREW N. BRISTOW Bar Roll No 1548 homas Victor Hurley was The Hon. John Augustine Keely QC born on 15 February 1952, the son of Thomas Henry Bar Roll No 508 Hurley and Yvonne Brandon (née ohn Keely was born on 2 boys, entered the law by way of a part- TCapon) Hurley. Tom was married to October, 1925. He died on 21 time course at Melbourne University Shelley, his wife of 22 years, and was December 2015. He was a while working in the Law Department. the father of Alexandra Kate, Thomas goodJ man, an outstanding barrister He undertook articles at Maurice Samuel Martin and Emily Charlotte. and an admired judge. Humble, Blackburn & Co., then was associate Tom grew up in Deepdene, cheerful, positive, courteous and to Sir Raymond Kelly (Chief Judge of holidaying at Point Lonsdale with respectful, he used his talents to the the Arbitration Court), then read with brothers Richard and James, and full. Never all that comfortable in Cliff Menhennitt and he was away. It sister Jenny. the company of the exalted, he had was not long before he established Tom was educated at Glamorgan, great sympathy for ordinary men and himself as a leading industrial Geelong Grammar, Toorak and women. His faith was his core, his barrister, appearing principally in Melbourne Grammar. family and the law his passions. the Conciliation and Arbitration Tom studied law and commerce at His father was a Clerk of Courts Commission and the Industrial Court. the University of Melbourne, living (later Prothonatory of the Supreme He appeared in most of the National at both Ormond and Trinity Colleges. Court). After schooling at the Jesuits’ Wage Cases and many of the major Tom threw himself into all aspects of St. Patrick’s College in East Melbourne, industry cases of the 1960s and 1970s. university life. He ran for the Student John too went into the Courts Branch In the Industrial Court he did union Representative Council and was and, like a number of other Catholic rule cases. He appeared with or against elected. He became publicity officer

86 VBN VBN 87 many of the great barristers of the their brains, to pursue knowledge Leo had a very wide range of time: Daryl Dawson, Keith Aickin, P.D. and express themselves. Structured interests including painting, a skill Phillips, Oliver Gillard, Dick Eggleston debate at Sunday lunch helped which he considerably honed in his back of the lift back and Dick McGarvie to name a few—all instil a commitment to help the less retirement. QCs and all destined for high office. fortunate. That they have done so is He was master to seven pupils, four John took silk in 1969. He never lacked perhaps John’s greatest legacy. of whom took silk. He was so revered work; governments, instrumentalities, PATRICK DALTON by those pupils that until shortly big corporations and unions all sought after his retirement, they gathered his services. His Hon. Judge with him annually to celebrate his John brought a powerful searching life and their involvement with him. mind to all his work. His preparation Leo Lazarus Such long-term involvement by was relentless: every fact verified, Bar Roll No 429 readers is an extraordinary tribute to every hypothesis tested. On one his generosity. eo Sydney Lazarus was born occasion, having sent his junior Leo’s family invited the Bench on 20 May 1922. He died on 26 home at 1am, he rang an hour later and Bar to a farewell ceremony at February 2016. to inform him that he had found the Essoign Club which was very LLeo was educated at Melbourne a major error in a graph and had well attended by approximately 70 Grammar School and the University instructed the eminent economist members of his family, the Bar and of Melbourne. He matriculated at 16 who had prepared it to redo it so it the Bench. Given his retirement was and graduated BA (Hons) in Classics. was ready for presentation later that 22 years ago, this was possibility the Leo interrupted his law studies to morning. In industrial disputes, when ultimate testament to the love and serve in the 4th Brigade of the 2nd AIF. in conference, John would make it respect in which he was held by all He saw active service in New Guinea clear that once the instructions were those whose lives and practices and and New Britain. set in motion the client would need to judicial roles crossed his path. His Upon graduation, Leo served commit to seeing them through right most outstanding characteristic was his articles with his sister, Pauline to the end. So armed, into battle; he his generosity with his time and the Lazarus, in the firm of their late loved the contest. His voice was deep depth of his wisdom. father, Louis S Lazarus in Collins and full of colour and he revelled in RON MELDRUM, Street, Melbourne. the interchange between Bench and ONE OF THE LUCKY PUPILS. Leo signed the Bar Roll in 1949 Bar: firm, respectful, courageous. His and read with Oliver Gillard, later cross-examinations were forceful, Sir Oliver Gillard QC, a justice of the John Fraser Roberts persistent and effective. Victorian Supreme Court. Leo had John was a founding judge of Bar Roll No 1548 an extraordinarily broad practice the Federal Court in 1977 and he and devoted over 16 of his 27 years ohn Roberts and I began at served on it for 19 years. His first at the Bar to serve without a break the Bar more or less together. appointment was restricted to the on the Bar Council. At the time of his We commenced our reading Industrial Division, although later appointment to the County Court he inJ Selborne Chambers and completed he also took an appointment to the was the Chairman of the Bar Council. our reading in the new Owen Dixon General Division. Industrial law cases There were very few more popular Chambers. continued to be the ones he enjoyed members of the Bar in his time of Upon completion of our reading most. John’s judicial manner was kind service. This was principally because period, we together looked for rooms and courteous, always giving counsel he was regularly consulted by fellow in Chambers. That was not too encouragement and time to develop practitioners in a wide range of areas, difficult in 1961, as the Bar had a new their arguments. However, once again given his depth of knowledge of the building and there were fewer than facts were probed, arguments tested, law, advocacy and tactics. 200 barristers in active practice. We weaknesses exposed. He had an innate Leo served a further 18 years on settled on the seventh floor. John took sense of fairness and was fearless the County Court and retired in room 701; I had room 705. in moving to prevent and remedy May 1994. John was a busy practitioner. He exploitation. If on occasion he used Leo had a distinguished time as began in Petty Sessions but fairly soon colourful language, it was no more than judge and barrister, but perhaps the developed a practice in County Court a reflection of the ardour of his spirit. thing that marked him out was his trials. In time, John took on personal John and his remarkable wife popularity with fellow barristers injury work. Personal injury work Maureen had seven children. Their and fellow judges. He was very became the greater part of his practice. home was full of love and a sense accessible in both roles as an adviser Apart from when one or other of of order and self-discipline. The to colleagues. us was away on circuit, or I was off children were encouraged to use

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on some other activity, John and I After some years John began illness. After her death, he remained spoke almost every day. I had an to grow peonies. John travelled at Upper Beaconsfield until his own armchair in a corner of my room and Victoria, collecting bulbs to add to health impacted upon him. John died I can still picture John sitting there. It his collection. He became something in November 2015. was an almost daily occurrence. We of an expert. In time he became a I still have the cup and saucer. discussed many subjects: our work, significant producer and his peonie GRAHAM HARRIS issues at the Bar, events in the wider blooms were sold at Victoria Market. world, our families and – almost John was always busy. In addition always – “the bush”. to his practice and his farm he had Despite his busy practice John`s a portfolio of investment properties; heart was always in the country. he was an astute investor. But the He grew up in northern Victoria. farm was always the top priority. On Gonged! Between finishing school at Geelong a Friday evening, when a few of us College and starting his law course would be having a quiet drink and Australia Day Honours 2016 at Melbourne University, he spent reflecting on the week, John would Allan James Myers AC, QC a year or two jackarooing in the pop in, offer a quick goodbye and be The Honourable John Michael Batt AM Western District. off to Upper Beac. Lionel Philip Robberds AM, QC In 1970 John purchased a small At Christmas 1992-93 my wife and Dr Michael Charles Pryles AO farm at Upper Beaconsfield. I were overseas. In January when I Dr Michael William Duckett White “Upper Beac” was from then on walked back into my room I saw John`s OAM very frequently the subject of our cup and saucer on my desk. Alongside Other appointments discussions. Over time John expanded was a note: it read “gone bush”. Arnold Kiel Loughman - appointed and developed his property. He ran From that time on, John rarely Attorney-General of the Republic cattle; prices, weather conditions came to the city. Our conversations of Vanuatu and plans for further development thereafter were mainly by phone. became a staple of our discussions. John cared for his wife through long

Victorian Bar readers march 2016

back row: James McComish, Laurence White, Patrick Donovan, Israel Cowen, Robert Forrester, Michael Allen, Gary Taylor, Adam Purton, Timothy Jeffrie, Marcus Finlay, Rachel Chrapot middle row: Wendy Pollock, Jacqueline Papson, Julia Lucas, Jack O’Connor, William Thomas, Joel Rufﬂes, Gareth Redenbach, Daniel Kinsey, Christine Willshire, Thomas Storey, Rudi Kruse, Michelle Jenkins, Peta Smith, Catherine Fitzgerald, Anna Parker seated: Naomi Lenga, Victoria Compton, Brett Harding, Lisa Mendicino, Marissa Chorn, Anna Lord, Simon Weir, Jennifer Cowen, Daniel Diaz, Rachel Waters, James Waters, Eliza Tiernan, Natasha Crowe

88 VBN VBN 89 Boilerplate A BIT ABOUT WORDS

Development of Language

JULIAN BURNSIDE

he use of language to communicate ideas of earth, but things are the sons of heaven”. is the deﬁning characteristic of the human How language evolved is a matter of speculation. It is species. It is so much a part of our mental tempting to think that the same neural architecture which landscape that we rarely recognise how permits or encourages language may also be associated extraordinary language is. with other forms of communication such as music and art. The human race has achieved many It is a striking fact that all human societies about which remarkable things - we have discovered most of the anything is known have this in common, that they have basic principles which make the physical universe what developed language, music and various of the visual arts. Tit is. Euclid’s geometry, Newton’s mechanics, Einstein’s At their foundation, each of these activities has a relativity and Planck’s quantum mechanics are all common core: the desire to communicate. Painting, discoveries which shed light on the inner workings of the sculpture, music and words are different modes of physical world which, in their own realms, are triumphs communication. It is interesting that the other senses of the human intellect. - touch and smell - have not developed into signiﬁcant The capacity for language stands apart from these modes of communication. Even though the sense of smell discoveries. There is no language inherent in the physical is governed by a much more ancient part of the brain universe. Language is not a principle waiting to be than language, and must once have been very important discovered. Rather, language is mankind’s own invention. to humans, it has not developed the sophisticated and As Samuel Johnson once said, “... words are the daughters subtle communicative powers of speech and vision. illustration by guy shield by illustration

90 VBN VBN 91 boilerplate (Those who are interested to pursue It may be that my internal experience this line of speculation would enjoy Perfume by Patrick Susskind - a book of red matches your internal experience which convincingly portrays a person of middle C played on a piano. for whom the sense of smell was more developed and more powerful wholly comprised of I-beam shapes: that a letterbox is red, can either of us than speech). it had some T shapes and some L be sure that the internal physiological Given an impulse to communicate, shapes in it. The students, who had experience which we both identify and given vocal organs capable become adept at describing the as red is the same experience? All of a range of sounds, it remains diagrams in words, were incapable we can be sure of is that we agree to profoundly mysterious that language of completely describing this new set call the same external phenomenon has evolved in a way which permits of diagrams. Their experience in the by the same name. It may be that my subtle and abstract ideas to be tests had taught them the language of internal experience of red matches communicated with great accuracy. the I-beam, but that same language your internal experience of middle It is one thing to postulate the prevented them from perceiving C played on a piano. Timothy Leary’s development of verbal signs which other similar, but different, experiments with LSD demonstrated, denote such things as danger, configurations. if nothing else, that the link between pleasure, dinosaur or tree. It is As a matter of common experience, external stimulus and internal much more difficult to explain the it is difficult to form and manipulate experience is, to say the least, variable. intellectual process which enables an idea for which we have no If we cannot be confident that red humans to conceive, understand verbal tag. Most professional jargon means the same for you and me, how and use verbal tags for such and private code are an attempt is it possible that we can agree on the abstract notions as love, philosophy, (conscious or not) to assign verbal meaning of words whose intended probability, mortgage, heaven and tags to ideas or experiences which signification involves one or more metaphor. have a shared relevance within the layers of metaphor? Suppose you The puzzle becomes even more limited group. asked a group of people to explain teasing when you take into account Huxley speculates that language the meaning of: bourgeois, democracy, the suggestion that language and is a record of past experience, which interest, industry, culture, communism. experience are deeply inter-related, limits future perception (see Adonis What level of agreement would you and in complex ways. Aldous and the Alphabet). Those who have expect if the people asked to explain Huxley and others have postulated, studied Einstein support his theory. the words were: a Russian worker, convincingly I think, that experience Einstein did not speak until he was an English conservative politician, generates language; but language five years old. He was thought to be an Eskimo, a biologist and a factory moderates experience. So, the Inuit a backward child, which turned out owner? have 16 different words for snow to be unduly pessimistic. However, Almost certainly, each would and can distinguish 16 different sorts it has been suggested that his late have an understanding of each of snow at a glance, because their development of language enabled word coloured substantially by experience makes the distinctions him to develop more highly than their individual experiences and useful. We, who have only one word most his ability to think abstractly circumstances. The differences for snow (skiers have several more), rather than verbally. That fact has between their respective have some difficulty in perceiving the been put forward as an explanation understandings of the words are differences between various types of his ability to conceive his theory likely to be substantial. of snow, because we do not have the of relativity, which has no connection Oliver Wendell Holmes once said, linguistic tags to mark the distinctions. with ordinary experience. “A word is not a crystal, transparent Edward de Bono did some Whether that is true or not, it and unchanging. It is the skin of interesting experimental work in this is important to recognise the link a living thought, and changes its area. He showed a group of students between experience, language and meaning and significance according various simple diagrams, which they perception. Whilst it is easy to see to the time in which, and the had to describe unambiguously in how verbal tags such as noise or me circumstances in which, it is used”. words. The diagrams were all capable or water can be developed and shared Those of us who use language as of being resolved into I-beam shapes. with little risk of misunderstanding, our principal tool of trade would The I-beam quickly became the it is not self-evident that useful tags do well to bear that in mind. The fundamental unit of description. for abstract ideas will be universally communication of an idea is not De Bono then produced a effective in communicating complete, and not useful, unless the diagram which, although similar in unambiguous ideas. Take two very meaning received corresponds with appearance to the others, was not different examples. If you and I agree the meaning intended.

90 VBN VBN 91 MUSIC boilerplate A new album from The Avalanches - local legends of plunderphonics

ED HEEREY

he term “plunderphonics” Ten years later, Triple J convened a panel of Australian was coined by Canadian avant-garde musicians and industry experts to vote on the greatest composer John Oswald in his 1985 Australian albums of all time. “Since I Left You” topped the essay “Plunderphonics, or Audio Piracy list, ahead of INXS’s “Kick” and ACDC’s “Back In Black”. as a Compositional Prerogative”. It refers Since at least 2005, rumours have circulated that The to taking one or more existing audio Avalanches were working on a new album, with the band recordings and altering them in some way to make itself issuing little teasers from time to time. a new composition, a sound collage or musical montage. In January 2007, the band stated via its website that Sixteen years ago, Melbourne’s own The Avalanches roughly 40 tracks were being considered: “it’s so f****n’ released their first album “Since I Left You”, widely party you will die, much more hip hop than you might Tregarded as a classic of the plunderphonics genre. expect, and while there is still no accurate estimated time The album was laboriously crafted through the of arrival, we’re sure you’re gonna love it when it arrives. late 1990s from countless samples of snippets from a ... it’s ended up sounding like the next logical step to bewildering range of old vinyl records, ranging from long- [Since I Left You], we just had to go around in a big circle forgotten R&B records to golf instructionals, Liza Minelli, to get back to where we belong. And one day when you Sesame Street and even Madonna’s “Holiday”. least expect it you’ll wake up and the sample fairy will Founding band-member Robbie Chater described the have left it under your pillow.” process thus, “Luckily, there were so many $2 records in That enthusiastic announcement was followed by a op shops around at the time that once you had a sampler long and tedious process of obtaining clearances for the you didn’t need much money to have access to all these use of other people’s copyright. And over nine years later, fantastic sounds. It seemed like such a fantastic way to the wait was finally over. create exciting sounds, and cheaply.” On 2 June 2016, in a tightly co-ordinated strategic launch, The result is a lush, joyous album of 18 tracks with a the band unveiled their new album “Wildflower” and cruisey, ‘60s cocktail vibe, building to a party crescendo released their first single “Frankie Sinatra”. The next day with tracks such as “Electricity” and some priceless dark they played a DJ set at the Primavera Festival in Barcelona. humour in the classic “Frontier Psychiatry”. If you missed The full album could be pre-ordered but was not fully it first time around, then “do yourself a favour . . .” available until 8 July. Until then, fans just had to make the Chater’s “conservative” estimate is that the album most of the first single. Their first real live show was at included over 3,500 samples, but no-one really knows. Splendour in the Grass in Byron Bay on 22 July (was their “We were really unorganised and were just sampling on live shows mix DJs with percussion, bass guitar and other the fly as tracks progressed,” Chater explained. “We had live instruments and vocals). no idea the record would get such a wide-scale release The initial reaction to “Frankie Sinatra” was not so we saw no need to keep track of what we were using — universally positive. ABC broadcaster Virginia Trioli we were definitely guilty of harbouring a ‘no-one’s going immediately cast her verdict by Twitter: “You’re kidding, to listen to it anyway’ sort of attitude. Plus that was in @zanrowe ... We waited 16 years for that?@ our days of getting kinda, um, lubricated so who the f*** TheAvalanches.” After such an extraordinarily long knows. It’s all kinda fuzzy!” gestation, it is not surprising that expectations would be The band may not have anticipated the success of sky-high and the result anti-climactic for some. their first album, but they had already attracted plenty My verdict? Thumbs up. The bedrock of “Frankie of attention from early single releases and anarchic live Sinatra” is a big-tent circus stomping bass riff (is that in shows, including support slots with The Beastie Boys fact a tuba?). Laid on top is the usual pastiche of weird and Public Enemy. The launch of “Since I Left You” in and diverse samples centring on a couple of lines from November 2000 was a major music industry event, with “Bobby Sox Idol” by 1940s Calypso singer Wilmouth The Face and other UK media flying to Melbourne to Houdini, backed by a mad swirling clarinet. Added to this cover it – held on a boat cruise on Port Phillip Bay. are guest rap vocals from radical left-field US rappers

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Danny Brown and MF (Metal Face) Doom, then a bridge dragging us The Avalanches achieve a fresh and distinct creation momentarily off on a wistful journey which is truly greater than the sum of its very many into “My Favourite Things” from sampled parts. “The Sound of Music”. Then it’s back to business with the circus stomp and moral status of “plunderphonics” includes unauthorised sampling, the closing out proceedings. anyway? question of copyright infringement To experience the full insanity No such issue arises to the extent focuses on the part taken from each behind the song, log on to vevo.com that The Avalanches have obtained work. In many cases the part taken and search for “Frankie Sinatra” to see permission from relevant copyright is so small that the copyright owner the film-clip. Words cannot adequately owners - which seems to be the would probably struggle to cross the describe what you will see. case for the great majority of the threshold requirement to prove that The full album release includes material they have sampled. Their a “substantial part” of the prior work a total of 21 songs with guest use of “Holiday” was one of few such was copied. appearances from Dirty Three’s samples ever permitted by Madonna. Morally, the sampling of so many Warren Ellis, Mercury Rev’s A sample from “South Pacific” was tiny snippets is not comparable to the Jonathan Donahue, Jennifer pulled from “Since I Left You” when type of case where one whole song Herrema of Royal Trux, Father John clearance was not forthcoming from copies another - such as Pharrell Misty, Toro y Moi, Camp Lo and Biz Rogers and Hammerstein, but those Williams’ “Blurred Lines” copying key Markie. Indeed, some high-profile copyright owners eventually turned elements of Marvin Gaye’s “Got To collaborators failed to make the around and allowed use of “My Give It Up”. Instead, The Avalanches final album and wound up on the Favourite Things” in “Frankie Sinatra” achieve a fresh and distinct creation cutting room floor, most notably – indeed Rogers and Hammerstein which is truly greater than the sum Luke Steele from Empire of the are credited as co-songwriters (a high of its very many sampled parts. If the Sun/The Sleepy Jackson. price to pay for a bridge?). Clearance band ever reads this, I will defend So, all in all, a newsworthy release from such big-time copyright owners them pro bono* in court should the by a local act with a global following. speaks to the respect held by The need ever arise! Worth checking out. Avalanches in the music industry. *Actually, I will require two signed albums And a post-script: what is the legal To the extent The Avalanches’ work and a back-stage pass.

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Conduct & Etiquette

Use of the Professional Qualiﬁcation and Post Nominals SAM HORGAN

he Legal Profession Uniform Conduct (Barristers) professional qualification. The Good Conduct Guide gives Rules 2015 came into operation on 1 July 2015. an example of counsel using his facsimile letterhead in a Rule 10 provides: private dispute with a government body. The Rule may be breached where the barrister’s intention is discerned as “A barrister must not use or permit the use of the professional T being to misuse the professional qualification. qualification as a barrister for the advancement of any other An Ethics Committee Bulletin in 2014 warned against occupation or activity in which he or she is directly or indirectly contravention of the Rule by use of emails including an engaged, or for private advantage, unless that use is usual or electronic sign off, identifying the person as a barrister and reasonable in the circumstances.” showing their chambers address. The Ethics Committee The Rule is a restatement of Rule 119 of the Practice Bulletin warned that it is not appropriate to include Rules made by the Bar Council pursuant to the Legal professional qualifications or to identify as a barrister Practice Act 1996. There appears to be no similar rule when communicating in respect of a private dispute. in the 1979 Restatement of Basic Rulings1. The Rule is It is recommended that the only way to be certain not related to the rules against advertising and touting and to fall foul of the Rule would be to maintain an alternate is similar to a rule applying to barristers of the Bar of email signature for private use which does not refer to England and Wales in 1975. the sender as a barrister or as a member of chambers It is said that the purpose of this Rule is to prevent or with a particular clerk. Such private email signature a barrister misusing his position and description as should be used for all matters which are not incidental

illustration by guy shield by illustration a barrister for purposes not properly related to that to the conduct of the profession of barrister. There can

94 VBN VBN 95 boilerplate be no objection to including the prohibition in engaging in that signature the address in another vocation which BOOK REVIEW of the barrister or the existing is liable to adversely affect telephone number or email the reputation of the legal address. There is nothing profession or the barrister’s own On The Edges unusual or unreasonable reputation (Rule 9(a)). There are in conducting one’s private also provisions which prevent a business by use of the vicbar barrister from acting (other than of History email account. More so, it on his own behalf) in certain would be both unusual and prescribed capacities (Rule 13). NICHOLAS FRENKEL unreasonable for a professional Quite apart from Rule 10 it is person to be required to useful to recognise the rule of maintain a separate private etiquette that it is inappropriate ichael Sexton - the Solicitor- email account. for senior counsel or junior General for New South Wales A difficult question arises in counsel to place an indication of - has produced a fascinating relation to the Rule and the use that status (whether by reference memoir reflecting his experiences in the law by senior counsel of the post to letters patent or the post andM politics. nominals QC or SC. Of course, nominals QC, SC or otherwise) Born and raised in Melbourne and educated it would be wrong for senior on written submissions to at the University of Melbourne and the counsel to book a restaurant the court. Similarly, there is a University of Virginia, the author travelled in his or her name using post firm rule of practice that post extensively, worked in the Commonwealth nominal (with the intention of nominals are not used when Attorney-General’s department and as a achieving a table, or a better signing pleadings. It is said that ministerial advisor during the Whitlam table) or for senior counsel to it is unnecessary to do so and government, worked in academia, joined the include his or her post nominals that the profession is aware of New South Wales Bar ultimately taking silk, on a Transfer of Land (with the status of barristers who might and was appointed Solicitor-General. intention of increasing the value settle pleadings and submissions. Michael has appeared in a number of well- of the land given the status of A similar theory has backed known and controversial cases, especially the subsequently registered the practice (often ignored) of involving criminal law and media law. The proprietor). Misuse by the removing any reference to post book is particularly interesting because use of post nominals and as a nominals on door plates and floor the author makes observations on a variety consequence “the professional directories in chambers. Again, of topics in a very forthright manner. Civil qualification” is a matter for it is said that fellow practitioners libertarians and proponents of the current good judgment and common are aware of the status of the criminal justice system, for example, may find sense. There is no need to be barrister and, by the time they the book makes for uncomfortable reading. prescriptive about the occasions have entered chambers, so are The text is full of interesting and entertaining appropriate and inappropriate your clients aware. anecdotes involving legal luminaries (many for the use of post nominals. 1. As set out in Gowans - from Melbourne) and political luminaries Aside from the Rule in Professional Conduct, Practice (particularly from the Australian Labor question there has long been and Etiquette (1979, The Law Book Company Limited) at pp Party). Many of the author’s first impressions, an issue over whether judges 16-21. including of political operators such as Graham returning to practice at the bar 2. Conduct and Etiquette at the Richardson, are hilarious. may utilise and revert to the Bar – Boulton (6th Edition, Butterworths 1975). Michael’s memoir provides real insight into rank of Queen’s Counsel . 3. Good Conduct Guide - the blurring of the line between the law and Other rules of conduct may Professional Standards for politics, especially during the Whitlam years. be breached by use of the Victorian Barristers, Annesley (2006, Victorian Bar Inc.) at page professional qualification or 155. post nominals. It is sufficient 4. Bulletin 1 of 2014 issued by to mention the prohibition Symon QC as Chair. 5. J.D. Merralls QC – Reversion is On the Edges of against engaging in conduct Impossible (1994) 89 Vic B.N. 53; History: A Memoir which is likely to diminish cf Keith Mason, Lawyers Then of Law, Books and public confidence in the legal and Now (2012, Federation Press) Politics at 141-3. profession or the administration 6. JD Heydon – Reciprocal Duties By Michael Sexton of justice or otherwise to of Bench and Bar (2007) 81 ALJ Connor Court 23 at 32. bring the legal profession Publishing 2015 into disrepute (Rule 8(c));

VBN 95 OFF THE WALL…. boilerplate Lewis Miller: Portrait of an artist SIOBHÁN RYAN, ART & COLLECTIONS COMMITTEE

T he Victorian Bar’s latest commission, a portrait of the Honourable Susan Crennan AC QC, will be unveiled at the Peter O’Callaghan QC Gallery later this year. In this edition, Off the Wall profiles the artist, Lewis Miller. hen Lewis Miller was accepted into the prestigious National Gallery School (now known as the Victorian College of the Arts) at the age of 18, his father Peter told him, “You might make no money. You might make a bit, but it’s a nice way to spend your life.” Peter Miller spoke from experience. He had attended the Gallery School himself under the Reconstruction Training Scheme after serving in Papua New Guinea during World WWar II and had pursued a career as an artist. Lewis recalls that in the days after his acceptance, his father took him into his studio and taught him a few things about painting that have stayed with him forever. Peter Miller’s words were prescient. From heady days in the 1980s Melbourne and Sydney art scenes, to time in Iraq as Australia’s Official War Artist, with some plum commissions and an Archibald Prize along the way, Lewis Miller’s talents have indeed afforded him an interesting life. Lewis Miller self portrait Miller completed his postgraduate studies at the VCA (James Farrell Self in 1982. He held his first solo exhibition in 1986 at 200 Portrait Award 2007) Gertrude Street Gallery. During the 1980s he mixed with artists from the Roar Studios collective, such as for this and a second commission in 2003. David Larwill, but his practice was largely solo. He was The portraits, which are pencil drawings done from represented by the flamboyant Sydney gallery owner life, capture some of the greatest thinkers of our Ray Hughes from 1989 to 2002, and by Stuart Purves age. Their faces are finely etched and their clothes (Australian Galleries) since 2002. rendered simply and truthfully, including a seemingly He has entered the Archibald Prize most years since disproportionate representation of slip-on shoes and 1989 and has been shortlisted 16 times. He won the award sandals with socks. Among the works is a touching in 1998 with a portrait of Allan Mitelman, a fellow artist drawing of Sir Fredrick Sanger (1918-2013), one of only and Miller’s teacher at VCA. “Portrait of Allan Mitelman four people to win the Nobel Prize twice (in 1958 for No. 3” was the third portrait of Mitelman that Miller had discovering the structure of proteins, especially insulin; entered over the years. The painting in oil and charcoal is and in 1980 for determining base sequences in DNA). enormous, measuring 2.1 metres by 2.4 metres, but barely Sanger, then in his 80s, peers at the artist and viewer contains Allan Mitelman’s face, which is dominated by with a look of resignation, his loose trousers secured distinctive eyeglasses and a cocked eyebrow. by a leather belt, his hands gnarly with arthritis. Winning the Archibald Prize immediately changed Miller has a continuing tenure at Cold Spring Harbour. Miller’s life. Among the jobs that flowed was a commission Last year he returned for a week to draw more portraits. from Dr James Watson, a Nobel Prize winner who Dr Watson will publish the portraits next year in a book to as a young biologist had discovered the double helix be called “Faces of the Genome”. molecular structure, with Francis Crick and Maurice Other significant commissions have included Mr Wilkins. In 1998, Watson was the lead scientist on the Sydney Baillieu Myer AC, Sir Edmund Hilary KG ONZ Human Genome Project. He invited Miller to his research KBE, the Honourable Justice Kim Santow OAM, Chief facility at Cold Spring Harbour in New York State to do Justice Robert French AC, Prime Minister Malcolm portraits of the scientists who were mapping the human Turnbull, Lucy Turnbull AO and the Honourable Bernard genome. Miller estimates he has made over a 100 portraits Teague AO.

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In 2003, Miller spent three weeks as an Official Australian War Artist with Coalition forces in Iraq. He recalls the experience as being “endlessly interesting and endlessly frustrating”. A major frustration for the portrait artist was being unable, for security reasons, to paint the faces of the Special Air Service soldiers on his tour. He doesn’t know where his war work ended up. Somewhere in the War Memorial archives in Canberra, he thinks. Apart from his life model, Hazel, whom he has painted for over 21 years, Miller’s most constant subject is himself. He paints self-portraits roughly twice a year, relishing the challenge of capturing his reflection in reverse. Self-portraiture “keeps your hand in”, he says, “…and besides, I’m always here”. The Hon. Justice Susan Lewis Miller portrait of Crennan AC QC Allan Mitelman No. 3 (1998 Last year, Lewis Miller was Archibald Prize winner). commissioned by the Victorian Bar to paint a portrait of Susan Crennan “Lawyers” he upon her retirement from the High says, “are very good Court. The process took about nine sittings over three months at Miller’s conversationalists, but studio in St Kilda. Miller prefers to scientists talk a different paint his subjects in his studio; “in my language altogether”. territory” is the way he describes it. Backgrounds of interiors or gardens chance of getting life into the face. He are forsaken for the subtle shadows says his conversations with Crennan cast on the grey walls of the studio. flowed freely and were entertaining, By turning the emphasis back on so much so that he had to shut her up the sitter, Miller believes the true to get her mouth right. “Lawyers” he character is revealed. Pointing to says, “are very good conversationalists, prints of the masters Rembrandt but scientists talk a different language and Velasquez posted on the studio altogether”. By now, Miller has painted wall, he notes that there is not a lot enough portraits of lawyers and She didn’t want a Mitelman going on in the background. So, too, scientists to make these distinctions. extravagance, just a medium sized in the portrait of Susan Crennan; the In 2008, he painted Chief Justice painting. In fact, Crennan and Miller focus and interest is in her face, with Robert French. They were also took measurements of the Bar’s only her clothing (a favourite shawl) stimulating sittings and Chief Justice portrait of the Hon. Robert Menzies and ornaments (her Companion of French still sends a Christmas card by Ivor Hele and made hers the same the Order of Australia badge and an each year. Last year he painted the dimensions. heirloom pendant) giving the clues to Honourable Bernard Teague for the There is always music in Miller’s her status which, in another artist’s Law Institute of Victoria. He has also studio. When I visited, Bob Dylan’s work, might have been conveyed in a painted a full length portrait of Simon 1970 album “Self Portrait” was busy backdrop. Wilson QC (c.1998). playing. For Crennan, it was Van Miller encourages conversation Miller says that the size of the Morrison and The Chieftains – with his sitters. It gives him the best portrait was important to Crennan. a nod to her Irish heritage.

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Height adjustable desks

MATTHEW TOWNSEND

arristers may not work with heavy machinery which improves blood flow to your muscles; or radioactive materials, but ours is a dangerous » pressure on the lower back seems to be reduced when workplace by reason of the extended time we standing compared to being seated for long periods of spend behind a desk. time; and BA literature review in the Annals of Internal Medicine » standing apparently burns more calories than remaining found that “Prolonged sedentary time was independently seated, although I suspect the benefits here are marginal. associated with deleterious health outcomes regardless I’ve had a height adjustable desk up in chambers of physical activity”. These included higher rates of type for a couple of years now. It was purchased from UCI 2 diabetes, cancer, and cancer-related deaths. So, even if furniture in West Melbourne (uci.com.au) for just over you go for a 10k run in the morning, don’t expect your $2,000, installed, and can be adjusted from the height of exercise to shield you from the effects of being seated a standard desk to a height at which a person 2m would all day. find comfortable. There is one small but significant thing we can do to My experience has been that I use the height adjustable mitigate the effects of being seated for much of the day. desk in the seated position for an hour or so, but am able And that is, to buy a height adjustable desk. I haven’t used to stand or move around for the rest of the day. the expression ‘stand-up desk’ because standing all day An unexpected benefit of a height adjustable desk is without the option of sitting down would be a step too far that has increased my productivity, for it requires far for most people. And even small adjustments to the desk less mental energy to refer to a resource elsewhere in in the standing position can reduce muscular fatigue. chambers if you don’t have to stand up to fetch it. And the Height adjustable desks have a number of benefits: activities we seem to spend more time doing these days, » a good height adjustable desk will allow you to fine courtesy of the emailed brief – printing, stapling, sorting tune or optimise the height at which you work. This is and hole-punching – can be done far more efficiently, if particularly important when operating a keyboard; you’re already on your feet. » working while standing allows you more opportunities to I’m in ODE 1304/5 if anyone wishes to have a look. make small movements to your neck, shoulders and legs, [email protected]

98 VBN VBN 99 boilerplate FOOD AND DRINK Bar Idda

A review by SCHWEINHAXE, the Bar’s resident undercover foodie

Caselle DOC, a wine made from carricante grapes ($14). The beer tasted like an orchard. Schweinhaxette told me that carricante is a grape variety that has been grown for thousands of years on the slopes of Mt Etna at 900 to 1,000 metres above sea level. It was dry, finely textured, complex and very food-friendly, so when our friends arrived, we ordered a bottle ($73) to help us through the antipasti. We decided to share the food. This meant we ordered too much! We devoured 30 grams of capocollo salumi ($15); sarde beccafico (baked stuffed sardines, soused onion and caciocavallo, $16); mulinciani (baked layered eggplant, passata, buffalo mozzarella, basil and pecorino, Bar Idda $12) and calamari fritti (semolina and spice fried 132 Lygon Street, Brunswick East calamari, patatine, wild greens and salmoriglio, $18). (03) 9380 5339 The highlight was the calamari. The fried coating Mon-Sat 6pm-10pm. Sunday 5.30pm-10pm. of semolina and spice, combined with the fresh wild The taste: Sicilian greens, was lovely. The bite: It’s in Brunswick East We skipped the primi plates and went straight to Things to chew: Spices, citrus, slow-cooked meat Things to sip: Ancient grape varieties from an ancient land the secondi and contorni. We had a bottle of 2013 COS Cerasuolo di Vittoria Classico DOCG ($88), a wine made from Nero d’Avola and frappato grapes. It was from t was a winter’s night in Melbourne. The cure: the south east of Sicily. It was a delicate and pretty Bar Idda – a restaurant not a bar – promising wine that would also appeal to lovers of pinot. Finely a unique experience that celebrates Sicilian balanced, not big and bold, but also not too sweet. food and culture. We then smashed into salsiccia (barbecue house- Having been to Sicily a few years back, I made pork, fennel and chilli sausage with relish and was expecting fresh fish, slow cooked meat, autumn greens) ($20); purpetti dolce (beef, almond, unusual grape varieties, a bit of noise, a great time and a pine nut, currant and cinnamon meatballs with passata, mangy dog after the scraps! Bar Idda delivered– minus $18); agnello all’eoliana (Aeolian four-hour roasted the dog. It is in Lygon Street in Brunswick East. Let the lamb shoulder with fennel cream, $29); barramundi vibe of the joint wash over you, like a wave from the (with roasted almonds) together with sides of caponata IonianI Sea. Relax! (sweet and sour friend eggplant, zucchini, celery, capers Brunswick East is eclectic and Bar Idda stands amongst and green olives, $12) and agrumi (roast fennel, blood all the action, with The Alehouse Project just down the orange and pink grapefruit, black olive and capers, $12). I road. Bar Idda is set in an old Victorian shop front, with enjoyed hacking into the lamb shoulder so that it could be large windows to the street. There is colourful outdoor shared. This added to the festive nature of this place and seating in the European café style. Inside, there are our experience within it! hanging plants, and a small 1970s TV set is showing Done? No, we then shared cannolo (a cinnamon shell an Italian TV show. The table is set with a beautifully with walnut cream and a quince delight on the side, $12) embroidered tablecloth set under glass. The cutlery, and pere sciroppate (vermouth-preserved pears, walnut glasses and plates are trattoria style. Waiters abound in cake, chocolate gelato and orange crostoli, $12). With the their smart uniforms touched off with a very smart apron. other little bits and pieces (sparkling water, coffee etc) the The service is excellent. bill was $405.50 for four people. Before our friends arrived, I managed to sneak in a We were given a card with the bill that contained the pot of Season’s Harvest from Temple Brewing ($7) and recipe for the purpetti dolce – nice touch. We were being Schweinhaxette had a glass of 2013 Benanti Bianco di asked to continue the Sicilian experience at home!

98 VBN VBN 99 RED BAG BLUE BAG the default that had been registered on his credit report. In the end, it was actually my boilerplate BLUE BAG – a view from junior counsel cousin the tradie who fixed the entire mess. “To hell with the fancy pants Dear Sage Silk, having nothing to do with the rather barrister”, he said. “I’ll just sort this Since coming to the Bar last year, specialised area of intellectual out myself.” And sort it out he did. my standing amongst my extensive property in which I hope to practise. One email and one phone call was all family has changed. I am now How do I deal with these constant it took for him to achieve more than I treated as an honoured confidant. requests for advice and how do I had in six months! Indeed, I am overwhelmed by the reconcile them with my overriding The moral of the story: five years extent and complexity of some of duty to maintain independence? of law school and many years in their legal problems, many of them Judicious Junior practice is nothing compared to flunking year 10, attaining no formal RED BAG – a view from senior counsel qualifications, half-completing countless apprenticeships, not being Dear Judicious Junior, leave until you have recited able to hold a job for more than a You must, of course, refuse to accept subdivision 719BA of the year and breaching god-knows-how- a brief where it would be difficult Income Tax Assessment Act many regulations on each building for you to maintain professional 1997 (Cth). job. Long live my cousin the tradie, independence by reason of any Let me tell you about my cousin who knows how to get things done! connection with the client. Your the tradie. “It won’t take long”, he I’ve come to the conclusion that the difficulty, however, is that none said. “No more than an hour”, he only way to avoid family harassment of your extensive family will pleaded. “But this is not my area of is to avoid your family altogether. actually brief you. They will just expertise”, I said. Well, those sure You can find plenty of excuses not corner you at the next wedding, turned out to be wise words. Six to attend great aunty Ethel’s 107th birthday, bar mitzvah or (dare months and many sleepless nights birthday celebrations next week! I say it) funeral and not let you later, I was still attempting to rectify Sage Silk

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