THE JOURNAL OF THE NSW BAR ASSOCIATION | SUMMER 2014-15 THE JOURNAL OF THE NSW BAR ASSOCIATION | SUMMER 2014-15 BUILDING A POSITIVE CULTURE AT THE NSW BAR PLUS: Appellate review of the facts Egon Kisch and the White Australia Policy Structuring discretion in sentencing Contents Editor's note 40 Practice 74 Appointments Building a positive culture at 2 President's column TheHon Justice.Helen Wilson the New South Wales Bar 2 Her Honour Judge Julia Baly SC 4 Bar Practice Course 02/14 The pillars of digital security Her Honour Judge }me Culver 4 Letters to the editor 64 Legal history Deputy Chief Magistrate Chris 6 Opinion Egon Kisch and the White O'Brien Australia Policy The discretion to prosecute 76 Obituaries Postscript to the Orr Case 9 Recent developments Revisited The Hon John Slattery AO QC Billy Purves 18 Features 70 Bullfry Structuring discretion in 71 Poetry Tony Edwards sentencing Judicial error, corrected Paul Flannery QC 26 Addresses 72 Sport Chandra Sandrasegara Appellate review of the facts: NSW Bar FC: A year of Chris Holt 2014 ,Maurice Byers Lecture triumphs and near triumphs 92 Book reviews The Barwick approach: 2014 Garfield Barwick Address © 2014 New Sourh WalesBar Association Bar News Editorial Committee ISSN 0817-0002 Views expressed by contributors to Bar News are lllis work is copyright. Apart from any use as �rrnincd under the Jeremy Stoljar SC (chair) Copyright Act 1968, and subsequcm amendments, no part may be not necessarily those of the New South Wales Bar Greg Burton SC reproduced, srorcd in a retrieval :<.)'Stem or transmiued by any meansor Association.Contributions are welcome and should proCTSSwithout specificwrinen permission from the copyright owner. Richard Beasley SC be addressed to the editor, Jeremy Stoljar SC. Requests and inguiries cona:ming reproduction :md rights should David Ash be addrcs.sed co rhe ediror, Bar Nrn-s, d- The Nm- Sourh Wales Bar Kylie Day 8th Floor Srlborne Chambers �ciation, Basement, SelborneChambers, 174 Phillip Srreet Sydney, NSW 2000. Nicolas Kirby 8/ 174 Phillip Street Sydney2000 Daniel Klineberg DX 395 Sydney Catherine Gleeson Victoria Brigden Contributions may be subject to editing prior to Caroline Dobraszczyk I publication, at the discretion of the editor. Fiona Roughley Cover: Lt Gen David Morrison at the launch of TalithaFishburn the Bar Association's Best Practice Guidelines on 8 Juliet Curtin August2014. Photo: Murray Harris Photography. RadhikaWithana Chris Winslow (Bar Association) Editor’s note Bar News is fortunate indeed to publish digital security’, examines a range of in this issue two recent lectures by issues, including how to keep electronic distinguished speakers: the Sir Maurice documents secure and confidential. Byers Lecture by the Hon Justice Virginia Adam Butt examines various limitations Bell, who examines the circumstances on judicial discretion in sentencing. And in which appellate courts review factual the Bar History section includes a piece findings at first instance, and this year’s on Egon Kisch and the White Australia Sir Garfield Barwick Address by the Hon Policy by the Hon Keith Mason QC, Murray Gleeson AC QC. together with the Hon Roger Gyles The cover story for this issue is an address AO QC’s personal recollection of the by the chief of the Australian Army, Lt remarkable Sidney Orr case. General David Morrison, at the launch of This being the last issue for 2014, Bar the NSW Bar Association’s Best Practice News takes this opportunity to wish all Guidelines. its readers a very restful and safe holiday For those barristers wondering how season and all the best for the New Year. best to integrate the grind of daily Jeremy Stoljar SC practice with the digital age, a piece Editor by Philippe Doyle Gray, ‘The pillars of Looking forward to 2015 By President Jane Needham SC been re-elected as president for the 2015 election result. That result indicates Council. On my election as president, I that there is interest among made the following statement: members in the Bar Council pursuing this issue with the New I congratulate all Executive office South Wales Government. holders and Bar Councillors on having gained the confidence of our The bar faces many challenges, the peers to govern this fine association. resolution of the queen’s counsel/ I am very much looking forward to senior counsel issue among them. leading the association with the But matters such as the continuing assistance of the Executive and the response of the bar to the Law Bar Council over the coming year. Council NARS report, the implications of a national It has been an interesting week. One profession, the uniform practice issue – that of whether the bar rules, and of course our statutory should approach the government to regulatory functions, will also take seek the requisite legislative up time and require significant and amendments to enable senior concentrated effort. In my last column, I outlined the counsel to practise under Letters matters of policy and planning which I Patent as queen’s counsel – has I am grateful that my leadership hoped to be able to work on during my caused some controversy in the over the past six months has enabled term as president. I am delighted to have wake of last week’s Bar Council this council to place in me the [2014] (Summer) Bar News 2 Bar News : The Journal of the New South Wales Bar Association Jane Needham SC, ‘Looking forward to 2015’ confidence and trust given to me by even if – as I am told is often the case – By improving work practices the previous council, in the practices set out in them are reflected circumstances of sustained debate. I in reality, I commend their adoption. at the bar we can hope to will not let you down. Since the Winter edition of Bar News, broaden the appeal of a life I would like to take this opportunity some further advances have been made at the bar so we can continue to thank the executive director and towards making the bar a better place to attract the highest staff of the Bar Association for their to work. The first is the opening of the devoted and unstinting service. bar childcare centre in August. This standard of advocates. I am looking forward to working with is operated by a commercial operator with ten places reserved for children the new Executive and Bar Council. I of women and minorities, including (and grandchildren) of members of would like to express my heartfelt thanks Indigenous lawyers, with the bar is the association, be they members with to those members who did not return to an area which is of real concern. By practising certificates, or class B members council, whether they sought re-election improving work practices at the bar such as clerks or other floor staff. I have or not. Each of them has served the Bar we can hope to broaden the appeal of heard terrific reports of the quality of Association well. A position on council is a life at the bar so we can continue to the care, and the Martin Place location not an easy task, and the programmes we attract the highest standard of advocates. is very convenient to the Queens Square provide would not be possible without The work of the Indigenous Barristers justice precinct and chambers. We will councillors, as well as committee and Trust is a case in point. Since becoming review the demand and response to the other volunteers, giving their time so president and thus a trustee I have had a centre, and keep under consideration generously. I look forward to the new, better understanding of the outstanding childcare places in other locations if and continuing, councillors continuing work done in this area by Chris Ronalds there is sufficient demand. I would this tradition. SC and Justice Michael Slattery in like to thank the treasurer, Michael encouraging talented Indigenous lawyers A Bar Council role (particularly on McHugh SC, and Megan Black, senior to the bar. the Executive) involves being across policy lawyer, amongst others, for their many issues and often in three or four hard work in achieving this excellent Please enjoy this issue of Bar News – as places at once. I have been invited to a outcome. ever, filled with the contributions of our number of conferences and events across members and testament to the broad The second is the recent notification Australia at which I am able to discuss range of talent at the bar. Thanks again of the importance of family and other and share ideas with leaders of the bar, to the Bar News editorial committee who responsibilities to be taken into account both nationally and internationally. I continue to produce such a high quality in setting sitting hours in both the am doing my best to bring the best of publication. these home. A number of initiatives of Supreme Court of NSW and the Federal the New South Wales Bar have been of Court. This approach will assist parents On a sad note, this edition has far significant interest to other bars. and others with carer responsibilities too many obituaries – six of them. to plan their various responsibilities We remember Jack Slattery and Paul In my last column I referred to Lt Gen with a greater degree of predictability. Flannery as fine judges, who have the Morrison’s launch of the bar’s Best I am grateful to Chief Justice Bathurst distinction of being the parents of fine Practice Guidelines on vilification, and Chief Justice Allsop in agreeing to judges. My condolences to the families bullying, harassment, discrimination, communicate with their judges in this of all those commemorated, and I trust and for flexible practice.