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GRANGE LES MEUBLE S DE FAMILLE Available through Grange Furniture. 55 Camberwell Road. Hawthorn, 3122 Tel: (03) 9882 8788 (Free Interior Design service available) • 598 Willoughby Road, Willoughby, NSW 2068 Tel: (02) 9958 0700 • Email: [email protected] No. 12 AUTUMN 2002

Contents

EDITORS'BACKSHEET 5 Life in the 21st Centwy CHAIRMAN'S CUPBOARD 8 2002 Legal Year: Some Significant Celebrations ATTORNE~GENERAVSCOLUMN 10 Victoria's New Drug Court CORRESPONDENCE 12 Letters to the Editors WELCOME 13 Judge Hogan OBITUARY 14 Richard Kelsham Fullagar 16 VERBATIM Welcome: Judge Hogan Obituary: Richard Kelsham ARTICLES Fullagar 17 Ten New Silks Welcomed by High Court in Canberra 24 Supreme Court's 150th Armiversary Sitting 24 Court Ceremony 26 May It Please the Court 29 Speech of the President of the Law Institute of Victoria 32 25th Armiversary of the Federal Court Supreme Court's 150thAnniversary Sitting 32 Chief Justice Reviews First 25 Years 34 Development of the Federal Court Over 25 Years 36 Success of Individual Docket System Reflects Confidence in Court NEWS AND VIEWS 38 Legal Response by to the War Against Terrorism 25th Anniversary oj the Federal Court 42 Expert Evidence 44 Opening ofthe Legal Year 50 The Exquisite Hour 52 Magistrate's Plaque 53 A Bit About Words/Fading Distinctions 55 Voluntas Launches 'Network of Commitment' 57 Criminal Bar Association News 59 The Remembrance of Defamations Past SPORT 61 Yachting/Squadron Sailing Day 63 CricketlHat Trick of Wins for Bar Cricketers 63 Cricket/Combined Team Beats Singapore Cricket Club Opening oj the Legal Year Voluntas Launches 'Network oj 64 Hockey/An Excellent Year Commitment' 66 GolflBench and Bar Winners at Kingston Heath Bar Sport: LAWYER'S BOOKSHELF 67 Books Reviewed 70 CONFERENCE UPDATE

Cover: Ten oj the 16 new silks jar 2001 were welcomed at the High Court in Canberra on 2 February 2002 - see page 17 and jollowing. Yachting Cricket Hockey Golf

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chair of Standing Committees of the Bar Council for the year 2001/2002 Aboriginal Law Students Mentoring Committee *Executive Conunittee B Kaye QC, S.W Clerks: Applications Review Committee R *Redlich QC, RF. (Chairman) W Brett QC, RA. H *Rush QC, J.T. (Senior Vice-Chairman) Child Care Facilities Committee W *Brett QC, RA. (Junior Vice-Chairman) D McLeod Ms F.M. B *Zichy-Woinarski QC, WB. Conciliators for Sexual Harassment and Vilification G Howard QC, A.J. F Rozenes QC, M. F *Dunn QC, P.A. B *Ray QC, WR Counsel Committee A *Shand QC, M.W H Rush QC, J.T. F Dreyfus QC, M.A. Equality Before the Law Committee B *McMillan S.C., Ms C.F. W Brett QC, RA. A Delany C.J. Ethics Committee G O'BryanJ. B McMillan S.C., Ms C.F. H McGarvie RW (Assistant Honorary Treasurer) A *Richards Ms J.E. Human Rights Committee H Bourke Ms K.L. D Fajgenbaurn QC, J.I. D Riordan EJ. Legal Assistance Committee W NealD.J. G Howard QC, Anthony J. S Duggan E T. Legal Education and Training Committee D Gorton J.P. BRay QC, WR D *Gronow M.G.R Past Practising Chairmen's Committee S Clarke EA. D Francis QC, C.H. D Attiwill RH.M. (Honorary Secretary) D Moore Ms S.E. (Assistant Honorary Secretary) Professional Indemnity Insurance Committee A Shand QC, MW. Ethics Committee Victorian Bar Dispute Resolution Committee B McMillan S.C., Ms C.F. (Chair) S Martin QC, WJ. S Willee QC, EA. Victorian Bar Theatre Company Steering Committee S Lally QC, WF. A Derham QC, D.M.B. H Young QC, EC. B Hill QC, I.D. P Bartfeld QC, M. F Dreyfus QC, M.A. G Lacava S.C., EG. H Lewis G.A. A Macaulay C.C. A Delany C.J. (Secretary) F Quigley, Ms M.L. G Judd, Ms K.E. D Riordan EJ. F Johns Ms S.L.

VICTORIAN BAR NEWS Editorial Committee Printed by: Impact Printing Editors John Kaufman QC, Peter Lithgow (Book 69-79 Fallon Street, Gerard Nash QC and Paul Elliott QC Reviews), Richard Brear (Assistant to Brunswick Vic. 3056 the Editors), Carolyn Sparke, Peter This publication may be cited as Editorial Board Nugent, William Gillies, (2001) 120 Vic B.N. David Bennett QC David Johns (Photography) Advertising Julian Burnside QC Published by The Victorian Bar Inc. Publications Management Pty Ltd Graeme Thompson Owen Dixon Chambers, 38 Essex Road, Surrey Hills, Editorial Consultant 205 William Street, 3000. Victoria 3127 David Wilken Registration No. A 0034304 S Telephone: (03) 9888 5977 Opinions expressed are not necessarily Facsimile: (03) 98885919 those of the Bar Council or the Bar. E-mail: [email protected]

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PRESUMED INNOCENT ECENTLY one of the editors was present in court when a person Rcharged with drug offences appealed to the Supreme Court from the refusal of a magistrate to grant him bail. Under the provisions of the Bail Act, the judge could not grant him bail unless satis- fied that there were “exceptional circum- stances”. He held, quite properly on the authorities, that the fact that the accused (presumed as a matter of law to be inno- cent until proven guilty) would probably spend 18 months in custody before his trial commenced did not constitute excep- tional circumstances. In the case of a person ultimately acquitted, 18 months in custody is a harsh penalty for the offence of being charged. WELCOME TO AUSTRALIA “Boat people” arriving in Australia are access to legal advice. They are stated The Vice-President of the United locked in a “detention centre” for periods not to be prisoners of war and, therefore, States has stressed that the USA will take exceeding two years (or perhaps removed not entitled to the benefits of the Geneva the steps necessary to counteract terror- to a Pacific island against their will) while convention. ism which “threatens the United States or their claims to refugee status are exam- The basis upon which they are not to its allies”. He has also asserted that the US ined. be categorised as prisoners of war is some- will act to prevent actions, wherever they If, perhaps after the lapse of what unclear. There is no suggestion that occur, which threaten US interests. His years, the application for refugee status they have committed any offences against popularity at home seems to be booming. succeeds, the refugee is released into international law or against the law of It seems only a short time ago that an the community. If, however, the appli- Afghanistan. Austrian “gentleman”, who was then the cation is rejected, this does not neces- A few weeks ago a representative of the leader of the German State, was applauded sarily mean that they are returned home. English government spoke of the need to at home when he went into Czechoslovakia Quite often the countries from which they enforce sanctions against Iraq because it to protect the interests of the Sudeten have fled are not prepared to take them was developing “weapons of mass destruc- Germans and when he sought Lebensraum back. tion”. He did not advert to the weapons in the east in the interests of the German We have yet to look squarely at the of mass destruction in the form of nuclear people. problem of indefinite detention of peo- armaments held by Pakistan, India, China, On another, historical note, the only ple who come unbidden to our shores or various member states of the former USSR clear distinction we can see between the who are picked up by our naval vessels and of course the USA. He did point out, demands which Austria made on Serbia at sea. The imposition of a sentence of however, of the Iraqi government (or peo- in 1914 (and the aftermath of those indefinite detention for the crime of arriv- ple, it was not clear) that they are “not demands) and the demands which the ing unasked in Australia appears to clash like us”. US made on Afghanistan (and their after- quite seriously with our (presumed) belief math) lies in the fact that the United in the rights of the individual and the rule States of America is more powerful than of law. was Austria. We have yet to look The people who live in Afghanistan, THE WAR ON TERRORISM AND THE squarely at the problem Iraq or even in North Korea — “the axis RULE OF LAW of evil” — are human beings. They are not Non-Afghans fighting with the Afghan of indefinite detention of “different from us” in any relevant sense. forces against the American invasion of people who come unbidden They do not “hate freedom”. But they may Afghanistan have been apprehended by to our shores or who are not see eye to eye with us on many mat- the Americans and taken to an American ters. base on the island of Cuba. There, it picked up by our naval Palestinian bombs are going off in seems, they are kept in cages without vessels at sea. Israel killing innocent people, and Israel

4 5 is engaged in a series of reprisal raids in a debate relating to a motion to remove We congratulate the Court on its lon- which more innocent people are being from office, to make allegations against a gevity and join (in spirit) in the celebra- killed. The US has not commenced any member of the judiciary which he is not tion of 150 years of the Supreme Court military operations against Israel or the prepared to make other than under cover of Victoria. We appreciate that there was Palestinians. These acts of terrorism do of that privilege. a need to reserve seats for various digni- not, it seems, threaten “the US or its Privilege is necessary for the function- taries. But to exclude the profession as a allies”. ing of Parliament but it should not extend whole from participation was an unfortu- to protect a man pursuing what appears to nate break with tradition. ANTI-TERRORIST LEGISLATION be a personal vendetta or the product of a Most members of the Bench come from The war against terrorism has resulted personal phobia. the Bar and all come from one or other in the enactment of legislation in various Newspapers which hunted for the scur- branch of the profession. The Bar has countries, including Australia, which is rilous about public figures used to be always felt that when a goes onto directed to making life more difficult described as the “gutter press”. They at the Bench he or she still in truth remains for terrorists and to ensuring that any least were not immune from the laws of a member of the Bar — he or she merely potential terrorist action is nipped in the defamation. It is to be hoped that we are moves to another part of the list. bud. Such legislation also, unfortunately, not entering into of the “gutter There should always be scope to allow impacts adversely on the freedom of our Senate”. crowding at the doorways even at the society and the rights of the individual expense of the dignity of the occasion. generally. THE RIGHTS OF OTHERS? WHAT ARE THEY? END OF AN ERA PARLIAMENTARY PRIVILEGE At a domestic level and at an international Justice Brooking retired from the Court We condemn the scurrilous and irrespon- level concern for the rights of others and of Appeal on March after years on the sible attacks made, under cover of privi- respect for the rule of law seems to be fall- Supreme Court. Since the establishment lege, against Justice Kirby, whom we (in ing into desuetude. of the Court of Appeal he has been the common with most lawyers throughout dominant figure on that Court. His depar- Australia) regard as a man of the highest OPEN COURT ture represents the end of an era. He integrity. At a more mundane level, ceremonial sit- will be sadly missed. A farewell to Justice We are appalled that a member of the tings of the Supreme Court are no longer Brooking will appear in the winter issue of legislature is able, under cover of parlia- held in open court. They are “by invitation the journal. mentary privilege, and otherwise than in only” affairs. The Editors

7 Chairman’s Cupboard 2002 Legal Year: Some Significant Celebrations

S is the tradition, the opening of the FAREWELL TO JUSTICE BROOKING new legal year was celebrated by By the time this first edition of the Bar Amembers of the judiciary, the Bar News for 2002 is published the Supreme and the legal profession by attendance Court will have farewelled Justice Brooking at religious services. On 4 February serv- from its Bench. His Honour has made an ices were held at St Paul’s Cathedral and outstanding contribution to the law and St Patrick’s Cathedral in the city and the legal profession, the Supreme Court and Melbourne Hebrew Congregation in South to the wider community since his appoint- Yarra and the St Eustathios Cathedral in ment in 1977. His Honour has been a mem- South Melbourne. The theme for the serv- ber of our Bar for 47 years and the Bar ices was “religion and the rule of law in looks forward to a continued association these troubled times”. and wishes him well in his retirement. The 2002 legal year has already proven to be a year of significant celebration for LEGAL PRACTICE ACT REVIEW two of our Courts. On 7 February I was The Victorian Bar’s response to the report delighted to attend the national ceremo- of the Review of the Legal Practice Act nial sitting of the Full Court of the Federal 1996 was submitted to the Attorney- Court of Australia on the occasion of the General in December 2001. The response 25th anniversary of the Court’s first sitting addresses a number of major recommen- in on 7 February 1977. At that dations made in the report which are of first sitting Sir Nigel Bowen swore in all serious concern to the Victorian Bar and but one of the 18 other members of the which it believes ought to be addressed if newly established Court. The ceremonial a new regulatory model is to be an appro- sitting was attended by former justices of priate one for the legal profession. Some the Court, including five judges who sat of the views expressed by the Bar in the as the foundation members of the Court The Victorian Bar’s response were that: 25 years ago, as well as many members of response to the report of • the Chairperson of the Board should the judiciary of State and Commonwealth the Review of the Legal be a serving or retired Supreme Court courts and tribunals and many other judge rather than a non-lawyer; distinguished guests. Chief Justice Black Practice Act 1996 was • the Legal Service Commissioner should presided over the ceremonial sitting in submitted to the Attorney- be an experienced legal practitioner; Sydney and was linked by a video-confer- General in December • the nominees of the Bar Council and encing network to sittings in all States and the Law Institute should be automatic Territories (except the Northern Territory) 2001. The response appointments to the Board rather than — even despite a addresses a number of be appointed from a list of nominees 6.00 am starting time. From Melbourne, major recommendations provided to the Attorney-General; the Victorian Bar commended the Court • a conduct complaint against a practi- for its contribution to the development of made in the report which tioner should be investigated at first national laws, its innovative and progres- are of serious concern instance by practitioner’s professional sive approach to the administration of to the Victorian Bar and association with a reserve power by the justice and the focus which it has leant to Commissioner to review the investiga- the equality of opportunity. which it believes ought to tion after its completion; On 11 February the Supreme Court be addressed. • the disciplinary body of each profes- of Victoria celebrated its own major sional association should retain their milestone — its 150th anniversary. The present summary power to deal with Victorian Bar participated at the Court’s Premier Bracks, members of the judiciary, a practitioner for “unsatisfactory con- ceremonial sitting attended by distin- the legal profession and guests who joined duct” with a power by the Commissioner guished guests including former Chief in celebrating its many achievements since to review that process; Justice Young, former Governors General its inception. • each professional association should Sir Ninian Stephen and Sir Zelman Cowan, (The address by the Chairman on behalf issue and monitor practising cer- former Governors, the Honourable Sir of the Victorian Bar is reported fully in tificates with a power reserved to and Richard McGarvie, this edition.) the Commissioner to direct that a

8 9 practising certificate not be issued or current problem is properly identified any no alternative but to renovate, that an existing certificate be cancelled response runs the risk of missing the point Chambers Limited and the Bar Council or suspended. and could disadvantage the public and the will do all they can to minimize the cost to In the response the Victorian Bar insurance industry. The issue affects all members whilst trying to provide accom- proposes that once the Attorney-General the States and Territories and requires co- modation and facilities which will best has determined the structure and func- ordination at the Commonwealth level and meet the needs of the Bar over the next tions of the new regulatory body a working the participation of all the significant stake- 30 years. party be established including representa- holders. tives from each branch of the profession The Victorian Bar Council believes that AUSTRALIAN BAR ASSOCIATION to provide assistance in addressing recent statements, particularly by the Fed- MODEL RULES the detail of how the new regulator will eral Minister for Small Business, Mr Hockey, The Bar Council is currently considering function. to the effect that there has been a litigation the Australian Bar Association draft set of Members may wish to read a copy of blow-out or that the current problems with model rules which will be largely identical the Bar’s response, which is available on public liability insurance are attributable to to our present rules. These rules, subject the Bar website. lawyers are not sustainable. At present the to local variations, will be adopted and debate is being fuelled by broad generalisa- operate nationally. SUNCORP METWAY — BARRISTERS’ tions which provide no sound basis for leg- PROFESSIONAL INDEMNITY islative action for establishing yet another LAW WEEK 2002 INSURANCE compensation scheme which would remove The Bar Council has accepted a recom- On 28 February 2002 the Bar was advised existing rights and would not provide the mendation by the Victorian Bar Theatre that as of 1 July 2002, Suncorp Metway injured with full compensation. The availa- Company Steering Committee that the will no longer provide professional indem- bility of public liability insurance at reasona- company stage a theatrical tour of the nity insurance to barristers or for that ble premium rates is a matter for significant Supreme Court precinct in May 2002. The matter any other professionals. Suncorp’s community concern, and the Victorian Bar theatrical tour is the Bar’s contribution decision resulted from a review of its will give whatever assistance it can in any to Law Week 2002. The Chief Justice has portfolio of products which concluded process to identify the circumstances that asked the Theatre Company to develop that it was not in the company’s com- have given rise to the problem and the range further the proposal so that it can be mercial interest to continue professional of solutions that best meet it. placed before the Judges of the Court for indemnity insurance. The Chairman of Speaking in response to suggestions that approval. the Victorian Bar’s Professional Indemnity the common law right to sue for personal The tour will consist of a theatrical/ Insurance Committee, Michael Shand QC, injury be removed, that a monetary thresh- historical tour of some of the courts, the and the Bar’s Executive Director, David old be introduced below which an injured library and cells. There will be an original Bremner, have, as representatives of the person would not have a right to sue, that musical component as well as trial re- Victorian Bar, formed a sub-committee there be a cap on liability, or that those suf- enactments. As with the highly successful with representatives of the Queensland fering a personal injury due to the fault of retrial of Ned Kelly staged during Law Bar Association to obtain an alternative another should not be able to request law- Week in May 200, the cast and production insurer. Suncorp Metway has indicated yers to represent them on a “no-win, no- crew will consist of some professional its willingness to assist the Bars to obtain fee” basis, Mr Redlich said: “Ultimately what actors and members of the Bar. Nicholas professional indemnity insurance cover is being currently suggested is the taking Harrington will be the director and writer from another insurer and has already met away of the rights of ordinary people under for the production and Sara Hinchey will with the sub-committee. A range of alter- the law to recover compensation for wrongs be the producer. It is planned that the tour natives will be considered, and it is antici- done to them. This is a very serious step. will take place twice each evening from pated that something may be in place next Both the Federal and State governments Monday to Saturday with approximately month. What is clear, however, is that have a duty to the community not to take 45-50 people being accommodated in each whatever alternative cover is arranged such a far-reaching step without first having tour. The tours will be marketed to the there will be a significant cost increase on thoroughly investigated and identified the Bar and the general public. The number of our premiums for 2002/2003. nature of the problem and the most effec- tickets will necessarily be limited by the tive means of addressing it. In order to do maximum number of people who can par- PUBLIC LIABILITY INSURANCE this, it must find out the facts so that it can ticipate in each tour. Insurance is not only a matter of current see whether suggested solutions address concern for our members but also for the the true causes of the problem. NEW BAR READERS general public. On 4 March 2002 I pub- Finally, I wish to extend a warm welcome lished the following press release in rela- to the new Bar readers, and in particular tion to public indemnity insurance: OWEN DIXON EAST RENOVATIONS our overseas participants (four from Papua The Bar Council and Barristers Chambers New Guinea and one from Indonesia), who The Chairman of the Victorian Bar Council, Limited some time ago resolved to commenced the Bar Readers’ Course on 4 Mr Robert Redlich QC, today called for a undertake renovations to Owen Dixon March 2002. comprehensive investigation of the reasons Chambers East. A decision will shortly be for the escalation in public liability insur- made in relation to the precise nature of Robert Redlich QC ance premiums. Unless the cause of the the renovations and design. Whilst there is Chairman

8 9 Attorney-General’s Column Victoria’s New Drug Court

RUGS and drug-related crime pose currently not being met — those drug a significant challenge for the crimi- or alcohol dependent offenders sentenced Dnal justice system. The Government in the Magistrates’ Court, whose depend- recognises that traditional sentencing ency contributed to their offending, and approaches are not adequately equipped who would otherwise face an immediate to manage the complex and intensive term of imprisonment for the offences needs of drug-dependent offenders. with which they have been charged. The Victorian Drug Court adopts a Potential Drug Court participants will fundamentally new and “therapeutic” undergo a detailed and comprehensive approach to sentencing drug-dependent assessment by members of the Drug offenders. This approach represents a shift Court team to determine suitability for away from focussing purely on the crimi- the program. This assessment will play an nal conduct of an offender, to addressing important role in determining whether a offenders’ needs and the underlying causes drug-dependent individual is sufficiently of their offending, such as drug depend- motivated to address that dependency ency, homelessness and unemployment, in and the problems associated with it. a holistic way. Offenders accepted into the program In developing our Drug Court, we have will be placed on a new sentencing order been fortunate to learn from the experi- known as the Drug Treatment Order or ences of other jurisdictions, such as New DTO. The DTO is a sentence of impris- South Wales and Queensland, where Drug ance with conditions and respond to non- onment positioned between the combined Courts have already been established. The compliance. Based on the experience of custody and treatment order and the Victorian model combines the most suc- Drug Courts both in Australia and over- intensive correction in the sentencing hier- cessful features of other Drug Courts to seas, ongoing, active judicial supervision is archy. address the specific needs of our commu- designed to retain offenders on the Drug Individuals who are assessed as suit- nity. Court program and reduce their offend- able for the Drug Court program will be The Government will establish the Drug ing. eligible for a DTO if they plead guilty Court on a trial basis for a period of The Drug Court will require Magistrates, to offences within the jurisdiction of the three years, commencing at Dandenong lawyers, police, correctional authorities, Magistrates’ Court, with the exception of Magistrates’ Court in May 2002. treatment providers and government sexual offences and offences involving the The Sentencing (Amendment) Act departments to adopt a collaborative infliction of actual bodily harm. 2002, recently passed by the Victorian approach in managing Drug Court partici- The DTO is a custodial order with two Parliament, provides the broad framework pants. parts. The custodial part of the DTO is the for the Drug Court pilot. The Act estab- The Drug Court will target a very spe- term of imprisonment of up to two years lishes the Drug Court as a new Division of cific group of offenders whose needs are to which the offender would have been the Magistrates’ Court. sentenced had he or she not received a The Chief Magistrate will assign DTO. The custodial part is imposed on the Magistrates to sit in the Drug Court offender at the outset but suspended until Division on an ongoing basis. Magistrates The Drug Court recognises it is activated by the Drug Court in the assigned to the Drug Court will receive event of non-compliance with conditions training to develop and enhance their that recovery from drug or cancellation of the order. understanding of the nature of drug and dependency does not The treatment and supervision part alcohol dependency, treatment options, occur overnight. To expect lasts for up to two years and consists of and offender motivation. conditions designed to address an offend- One of the key features of the Drug an offender with a severe er’s drug or alcohol dependency (such as Court is that the Drug Court Magistrate will drug problem to abstain submitting to drug treatment and drug have responsibility for the ongoing supervi- from drug use immediately testing). Drug Court participants will be sion of offenders placed on the Drug Court required to appear in Court on a regular program. With the assistance of a multi- once placed on a basis, to enable the Drug Court to moni- disciplinary Drug Court team (including sentencing order is tor the progress of each participant on the a clinician, case manager, police prosecu- unrealistic. Lapse and program. tor and defence lawyer), the Magistrate The Drug Court recognises that recov- will monitor offenders’ progress on the relapse into drug use are ery from drug dependency does not occur Drug Court program, encourage compli- highly likely. overnight. To expect an offender with a

10 11 severe drug problem to abstain from drug Court will be the cancellation of the DTO is properly resourced, and have commit- use immediately once placed on a sentenc- for successful completion of the program. ted funds for drug treatment programs ing order is unrealistic. Lapse and relapse The Drug Court pilot will be evaluated and housing for Drug Court participants. into drug use are highly likely. to determine whether it has been effective Despite these challenges, with the neces- The Act establishes a unique regime in reducing drug dependency and related sary leadership from all agencies involved, of variation, “rewards” and “sanctions” to crime, and has ultimately made a differ- I have no doubt that the Drug Court enable the Drug Court to respond to com- ence. If the evaluation is successful, the will make a significant difference to the pliance and non-compliance by an offender Drug Court could be extended to further Victorian community. with the conditions of the DTO. For exam- locations throughout Victoria. ple, if an offender failed to appear in Court I am extremely grateful for the Criminal MP when required, the Drug Court could vary Bar Association’s input into and support Attorney-General the DTO to increase the frequency of for the legislation. I am also pleased that drug testing. For more serious non-com- the legislation has received the support of pliance, the Drug Court could sanction the the Opposition. offender by activating the custodial part The Drug Court is only one element APPEAL BOOKS of the DTO, and ordering the offender of the Government’s overall strategy to COURT BOOKS to serve a period of up to seven days in address Victoria’s drug problem. Clearly APPLICATION BOOKS prison. as a community we must continue to find Personalised confidential service Conversely, the Drug Court will have new ways to tackle the issue. Professional attention to detail the power to “reward” an offender for I have no illusions about the chal- compliance with the conditions of the lenges that lie ahead in making the Drug Urgent instructions accepted DTO, for example, by decreasing the fre- Court a success. We have selected a chal- Mobile: 0412 227 675 quency of drug testing or decreasing the lenging group of offenders with highly E-mail: [email protected] frequency of an offender’s court appear- complex needs. We are also acutely aware THE APPEAL BOOK COMPANY ances. The ultimate reward in the Drug of the need to ensure that the Drug Court

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10 11 Correspondence

Well-designed, well-drawn pleadings do pared by members of a learned profession, Attack on Bench and crystallize issues of fact. Poor pleadings do who are trained for that purpose, but that Bar ‘Misplaced’ not. Fundamental to an effective pleading is often just not the case. The shift that we is the need to have discerned the issues have seen over the past twenty years, with The Editors to be litigated and the relief required. Mr some solicitors regarding their occupation Gibson paradoxically comments: only as a business, means there has been Dear Sirs, a “dumbing down” so that some who are must deplore the title and tone of Mr Experience of forensic contests does sug- charged with preparing cases have no idea IGibson’s article entitled “Judicial Over- gest that the real issue only emerges well how to run a trial. servicing: Bringing Home the Bacon” into the trial and the process is not then Mr Gibson’s criticism about unneces- which you published in the last Bar News. assisted by pleadings. sary use of counsel is another refl ection Although Mr Gibson, a partner at the of the same malaise. He is right in saying fi rm Blake Dawson Waldron, recognises that counsel are sometimes briefed by the seriousness of making an allegation Why is that? A lack of proper prepara- solicitors to attend to matters which the of overservicing about a solicitor, he has tion? Might I suggest that any failure of solicitors ought be perfectly capable of been quick to make such an allegation pleadings to reveal the real issue(s) is not attending to themselves. But it is hardly about the judiciary. a failure of the procedure but rather of the fair to criticise barristers for attending Many of Mr Gibson’s observations drafters or those who have provided inad- when so instructed. Why do solicitors about costs incurred unnecessarily in equate instructions? instruct them to attend? Sometimes for some litigation are correct. But his attack In relation to discovery, whilst I agree added protection but often because the on the Bench and the Bar is quite mis- that the “train of enquiry” test is too solicitors have no relevant expertise. placed. Curiously, he overlooks entirely broad, it does not mean that discovery is I agree with Mr Gibson’s conclusion the importance and role of solicitors in the of no value. The great problem with dis- that it is time to shift some of the respon- conduct of litigation. covery at the moment is the way in which sibility back to those whose profession it is Putting the matter bluntly, Mr Gibson’s it is conducted with parties exercising no to carry it. Members of the Bar do not wish article fails to expose the obvious source critical judgment about the relevance of to be “paper hangers, scriptwriters or bar- of the problem that judges, barristers and documents to issues. Instead clients are row boys” but who is going to do the work clients are so commonly encountering instructed to provide documents that that desperately needs to be done if solici- today — the appalling failure of some might relate in some way to the case and tors will not accept that responsibility? (emphasis added) solicitors to bring any then those documents are mindlessly cat- Yours sincerely, proper critical legal judgment to bear on alogued and reproduced many times over. the instructions they are given. Witness statements properly drawn P.H. Greenwood S.C. Mr Gibson’s astonishment that some by ethical lawyers who know the rules judges may require a matter to come back of evidence can be excellent. If they are for 10 or more directions hearings merely poorly done, they are worse than useless. begs the question, “Why is the judge Similarly court books. The vast majority of Tour de force! doing that?” Almost always the answer cases turn on a few documents but they The Editor is because the parties have not properly are too often swamped by irrelevant and done what was required of them to pre- often illegible documents because of an Dear Gerry pare the matter for hearing. That failure is extraordinary lack of care and considera- ’M writing to congratulate you on the not the judge’s fault. tion in the preparation of such books. summer Bar News — a tour de force! The “problems” identifi ed by Mr Mr Gibson rhetorically asks, “But I So detailed and so interesting that I Gibson — pleadings, discovery, witness when did we acquire the need to have read it and reread it over more than a statements, court books and directions the judges direct the lawyers on how month. It is magnifi cent. hearings — are not problems if the tasks they should present their case?” The I trust you’ll stay as editor till we both are competently performed. The real sane answer of course is “when the retire. “problem” is that these tasks are not being lawyers failed regulary to do it properly carried out properly by the people who are themselves”. It would be good if we could Best wishes principally responsible for such things. proceed upon the basis that trials are pre- Dr Harry Imber

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12 13 Welcome County Court Judge Hogan later husband, Michael Waugh. She did Workers’ Compensation Board, the County articles with the firm of Anderson, Rice Court and the Supreme Court. Along the and Nichols and was admitted to practice way, her practice became more special- in 1979. After practising for a short time ised, initially in general personal injuries in Warrnambool, she signed the Bar Roll in and, in more recent times, in medical neg- September 1981. ligence work. Her Honour was fortunate to read with The hallmarks of Her Honour’s work Kevin Mahony, now the Senior Master as a barrister were diligence and care of the Supreme Court. Kevin took Her with which she prepared her briefs, her Honour on “sight unseen”. As a master, he skilful jury advocacy, her very efficient gave service above and beyond the call of cross-examinations, particularly of medi- duty, including on one occasion conduct- cal experts, and her level of commitment ing one of his pupil’s conferences person- to those for whom she acted. As Ms ally and in the absence of his pupil. Her Tina Millar observed at the welcome, Her Honour had overlooked the conference, Honour became the leading female per- going straight home after a long day in sonal injuries barrister in the State. Court. In the latter part of Her Honour’s career In her early days at the Bar, Her hon- at the Bar, she undertook a substantial our became a member of an informal amount of mediation work, particularly bushwalking group that included Chief in the medical negligence field. Many of Justice Nicholson of the Family Court these were difficult cases. Many barris- RANCIS Elizabeth Hogan has been and Ron Meldrum QC. On one walk, Her ters could learn from the manner in which appointed a judge of the County Honour went rapidly from near the back Her Honour went about this form of work. FCourt and was warmly welcomed by of the group to the front of it, as she ran Mediations were not viewed as easy briefs. the profession on 5 October 2001. down a steep slope, out of control and They were meticulously prepared, as if the Her Honour was born into a family of unable to stop. Fortunately, the only injury trial was about to commence. Good results six children and grew up in Canberra. that was suffered was to Her Honour’s were achieved, often because Her Honour She completed her schooling at St Clare’s beautiful white woollen jumper. The front was better prepared than her opponents. College with distinction. She then became if the jumper was covered in mud. This Her Honour has always enjoyed a wide a student at the Australian National was a product of the position in which Her range of interests outside the law. First University where she graduated with a Honour finally came to a standstill. among these is her husband, Michael, Bachelor of Arts in 1976 and a Bachelor of Her Honour’s practice was initially and her children, Laurence and Timothy. Laws in 1978. broad, involving the full gamut of Her Honour is also very attentive to her The reformist zeal of the Whitlam gov- Magistrates’ Court work. In her early mother, brothers, sisters and friends. She ernment, the Aboriginal Tent Embassy, days of practice, she made a number is actively involved in her local parish, St the Governor-General’s dismissal of the of trips to Central Australia, where she Anne’s in Kew, where her two sons attend government in 1975 and like matters did locum work both for the Central school. As a member of the parish’s Social made these heady times in which to be Australian Aboriginal Legal Aid Service Justice Committee, Her Honour recently a university student in Canberra. Her and for the Central Land Council. In organised a series of lectures which exam- Honour was one of the many law students doing so, Her Honour continued the ined the inter-relationship between the who marched to Parliament House after long tradition of members of this Bar teachings of the Church and matters of Sir John Kerr had acted on 11 November representing Aboriginal people from the social justice. Her Honour also finds time to 1975. She also waitressed in the parlia- Northern Territory in both criminal law attend the theatre, the opera and monthly mentary dining room on a part-time basis. and land rights work. In “bush” courts, meetings of her bookclub (of which she In this facet of Her Honour’s education, Her Honour would routinely represent has been a member for 20 years). she glimpsed both good and bad perform- dozens of Aboriginal people in the course Her Honour brings to the County Court ances by prominent and colourful public of a single day and not uncommonly did a breadth of experience in the law and in figures of the day. so in harsh physical conditions and with life, a capacity for hard work, an innate Both as a student and later in her life, the difficulties of communication that are sense of fairness and a good sense of Her Honour had a distinguished career inherent in the work. Conditions in Alice humour. As Robert Redlich QC observed at as a debater. In inter-varsity debating for Springs may have been better, although it the welcome, Her Honour’s appointment ANU, she first met Ron Meldrum QC, Molly was not for nothing that the house where has been greeted with universal acclaim Missen and other long-term friends. Her Honour commonly stayed was known as one that will clearly enhance the status Her Honour left Canberra and moved as “Hepatitis House”. of the Court. to Melbourne, where she knew nobody, Her Honour soon came to appear reg- The Bar wishes Her Honour well for a other than her university sweetheart and ularly in higher jurisdictions, namely the long and satisfying judicial career.

12 13 Obituary

Richard Kelsham Fullagar: 1926–2001 The following is an extract from the eulogy delivered by Phillips J.A. on 23 November 2001

cialised in industrial property and mari- and capacity; he was acute and percep- time law. tive, and his analytical powers were con- On 30 June 1953 Dick married June siderable. He soon gained a reputation for Harris, a country girl from Cobram, who well-crafted judgments, displaying logical was to be his mainstay and support for thought, clarity of expression, a concern the rest of his life and whom, quite simply, for precision, and, like his father, a grasp he adored. Having grown up in his father’s of fundamental principle. His were judg- household, in an atmosphere of success, ments that were sound and, if concise, he had already, in the years before his that was due no doubt to the comment marriage established himself at the Bar. made years before, by his pupil-master, An early practice in equity and property on the young Fullagar’s first attempt at law soon gave way, in volume at least, to an opinion: “You’ve got the right answer his abiding joy and particular specialty, m’boy, but you don’t have to write Gone industrial property. He had an extensive with the Wind!” practice not only in Victoria but also in For 19 years Dick sat on the Supreme Tasmania, and later in NSW. He took silk Court. He exercised his authority consci- on 26 May 1964 and was regularly seen entiously, indeed at times with courage. in the High Court, often in constitutional In one case, in 1986, he made what was cases. In one patent case, litigation which probably then an unprecedented order for was commonly demanding for its techni- the forfeiture and sale of 60 million dol- cal complexity, Chief Justice Barwick, with lars worth of shares in North Broken Hill ICHARD Kelsham Fullagar is of whom (I think it is fair to say) Dick had lit- which had been acquired by another. As course a name to conjure with, a tle in common, complained in the course he became more senior he sat more and Rname made famous in the law, in of the argument: “But Mr Fullagar it is more on appeals, presiding in due course its own right. Born on 14 July 1926, only words, words, words”, to which coun- over a Bench of three. As with all his judi- the second of five sons of Wilfred and sel promptly replied: “Pending advances cial work, he did it with courtesy, with Marion Fullagar, he was given the name in telepathy, Your Honour, I communicate kindness and sometimes with humour, but Kelsham. Apparently, in 1565 when an only in words”. As a hard-working barris- humour never at the expense of the dig- ancestor named “Fullagard” married Agnes ter he never spared himself, or indeed his nity of his court. On the Bench, his was in Kelsham, a daughter of the lord of the juniors, to ensure that his client’s case was many ways the very model of judicial tem- manor of Headcorn in Kent, it was made presented at the highest level that meticu- perament. a condition of that marriage that the first- lous preparation and thoughtful presenta- On 11 February 1994 Mr Justice born male child should always bear the tion could achieve. He was a perfectionist, Fullagar retired from full-time judicial name of Kelsham. Like a cautious equity and like all of that ilk, he worried to get work to become a reserve judge, only to lawyer, Wilfred Kelsham Fullagar gave the things just right. Yet, demanding though resign from the Court altogether some name to all five of his sons and I think his practice was, in 1974 he was Vice two months later, on 9 May, upon his one may safely say that from his very birth Chairman of the Bar Council, he was a appointment as chairman of the solicitors’ Dick became a traditionalist. director of the Equity Trustees Co. Ltd. disciplinary body, the Solicitors’ Board. Young Richard attended Geelong and, for long a member of the Medico In 1997 he became the chairman of the College and began his law course at the Legal Society, he became its President in Board’s successor, the Legal Profession in 1944. Having 1975. Tribunal, when the legislation was com- completed his first year with distinction, On 29 January 1975 Richard Kelsham pletely re-cast. Technically, this was a he interrupted his studies to enlist in the Fullagar QC was appointed to the Supreme part-time job, but nothing that Fullagar Navy, serving as a sub-lieutenant. In 1946, Court, to the very Bench which his father ever did was part-time and he brought he returned to University and early in had graced from 1945 until 1950 when to this the same dedication and consci- 1949, after the final Honours examination, he became a Justice of the High Court of entious thoroughness which marked his he graduated as a Master of Laws. Having Australia, an office retained by Sir Wilfred work as a judge, sparing himself no served his articles with Mr E.A. Cook of until his untimely death in 1961. Like the more now than formerly. He gained Russell, Kennedy and Cook, he was admit- father, the son soon adapted to the varied the ungrudging respect of those who sat ted to practice on 3 October 1949 and a work of the Supreme Court, sitting in all with him and of those who had to come month later he went to the Bar. Signing of its jurisdictions, including those with before him. His judgment remained sound the Roll of Counsel on 4 November, the which he was altogether unfamiliar. His and, as before, he never shirked his duty, young Fullagar commenced his pupillage first case was a murder trial and one can however much aware this compassionate in the chambers of H.A. Winneke, later imagine his concern. But he need not have man must have been at times of the shat- Chief Justice and Governor of the State. worried; for Dick did all his work well. tered professional lives with which he was When the then Mr Winneke took silk soon He grew to have a wide knowledge of the dealing. afterwards, he completed his reading in law and he had a sound instinct for its Richard Fullagar was a man of learn- the chambers of Mr. G.A. Pape, who spe- direction; he had great intellectual depth ing. He was also a devoted family man.

14 15 Devoted to his wife, he was a loyal and lov- people’s representatives in Parliament can ing husband. He was devoted, too, to his and do make and unmake.” three children of whom he was intensely proud, Jenny, Richard and Sally, and with That belief never dimmed. In his judi- the arrival of grandchildren that love and cial work, once he had analysed the prob- TAILORING affection was extended to embrace them lem to his satisfaction — which was never all. at an early stage in the argument — he Suits tailored to measure Richard Fullagar was a man of princi- could be stubborn in insisting upon what Alterations and invisible ple. He was intense and passionate about he saw to be the proper solution. What everything he did, whether on the golf was right in the law and what was right mending course or on the Bench, and his greatest in the wider sense were never compro- Quality off-rack suits passion next after his family was his belief mised. in the Rule of Law. He pronounced this In one word, Dick Fullagar was a good Repairs to legal robes creed when he was welcomed by the pro- person. Straightforward and direct, he had Bar jackets made to order fession to the Supreme Court Bench: integrity of purpose; he was a man of hon- our. He would do nothing that might tar- I deeply believe in the common law, and I nish his own honour or that of his family, deeply believe in the rule of law. A judge is or call into question the standing of the not in our country elected by the people, court of which he was for so long a distin- LES LEES TAILORS nor is he directly removable at their will. . guished member. Shop 8, 121 William Street, . . The law which can be altered at will by Melbourne, Vic 3000 those who are elected by the people, and are responsible to them, must stand above Tel: 9629 2249 the judge, and therefore the oath of the Frankston judge is to do equal justice between the Tel: 9783 5372 strong and the weak according to law, that is to say, according to that law which the

14 15 Verbatim Articles

XVI WORLD CONGRESS 2002 Verbatim MELBOURNE, AUSTRALIA The Inapt Metaphor question. Mr Middleton can tell us what he INTERNATIONAL meant by the question. Supreme Court of Victoria Mr Middleton: I might if I knew what it meant myself, Your Honour, but I’ll get ASSOCIATION OF Harney v Transport Accident instructions about it. Commission YOUTH AND FAMILY Coram: Eames J and a jury of six Meldrum QC with Tobin for Plaintiff JUDGES AND Curtain QC with Middleton for Defendant Mitigation in Vanuatu Curtain QC (cross-examining medical Public Prosecutor of the Republic of MAGISTRATES witness): And you gave him Viagra not Vanuatu v Amos John Pakoa knowing that it would be any use for nerve Coram: Murrum AJ, Supreme Court of 26–31 OCTOBER 2002 dysfunction at all? the Republic of Vanuatu Melbourne Convention and Witness: That’s right. Miranda Forsythe prosecuting (an Australian Youth Ambassador in her very Exhibition Centre Curtain QC: Was it a sort of suck it and see approach? first trial — a double murder. Daughter of Witness: Well. the late Neil Forsythe QC. Miranda will be Congress Theme: reading in September 2002) “Forging the Links” A Matter of Perception Hilara Toa for the Accused The following questioning occurred in the A Congress for: County Court at Melbourne context of a doctor giving evidence about Judges and Magistrates, Legal 30 November 2001 the mental capacity of the accused during Professionals, Social Scientists, Coram: Her Honour Judge Hogan a murder trial. Police, Church, Welfare and Youth Rattray QC and Ingram for the Plaintiff Doctor: . . . and so I found that the Wheelahan for Second Defendant Agencies, Community Groups, accused is suffering from depression. Gillies QC and Solomon for Third : Doctor, isn’t it possible that the Educators, Academics, Human Judge Defendant accused’s depression was caused by the Rights Advocates, Legislators, Ruskin QC and Masel for Fourth fact that he had just killed his wife and Psychologists/Psychiatrists. Defendant children? The International Association of Upon coming onto the Bench at the com- In the context of the Defence providing Youth and Family Judges and mencement of the case Her Honour said: mitigating factors in relation to the sen- Magistrates (IAYFJM) is a non- “This looks like the painting of the last tencing in the same case: government organisation with con- supper — and I see Mr Gillies that you are Toa: . . . and another factor to take into sultative status at the United Nations. in the middle.” consideration, My Lord, is that since the Founded in 1928, the Association accused has been remanded in custody he has its seat in Geneva, Switzerland. has not once tried to escape from prison. It represents worldwide efforts to The Hunt for Stability deal with family matters and the protection of children and young County Court people and their families, and with Wakeling v Sky Dive Corrowa Pty Ltd the criminal behaviour and develop- Coram: Judge Fagan and a jury of six mental and adjustment problems of Nash QC and G. Burns for Plaintiff R. Middleton for Defendant youth. Mr Middleton (cross-examining plain- VicBar Internet Website: tiff): Then the next segment that you are HE Victorian Bar internet access www.youthandfamily2002.com instructed about, was that stability? Tsystem continues to grow in popular- Congress Office: Plaintiff: Yes. ity. There are now over 660 users of the His Honour: What do you mean by stabil- internet access system. It is comparatively The Meeting Planners ity, stability of what? cheap, usually very fast and is supported 91–97 Islington Street, Mr Middleton: You tell His Honour what by a Network Administrator. Visit the Collingwood, was the stability component of the course Vicbar Network website at: Victoria, Australia 3066 as you remember it? “http://network.vicbar.com.au/” Telephone: +61 3 9417 0888 Plaintiff: I can’t remember at this present Please contact Ian Green on extension Facsimile: +61 3 9417 0899 time, Your Honour. 6664 or by e-mail: [email protected] His Honour: Well, maybe because it’s his for further information.

16 17 Articles

New Silks for 2001

Caption

On Monday 4 February 2002, 10 of the 16 new evening. Julie Dodds-Streeton and David Collins Victorian Senior Counsel appointed on 27 Novem- report on the day, and the text of the speech to ber 2001 went to Canberra to be welcomed by the the dinner given by the High Court’s the Honour- High Court and attend the Australian Bar Asso- able Justice Ian Callinen follows. ciation’s Silks Dinner in the Court’s Great Hall that Ten New Silks Welcomed by High Court in Canberra

Report by Julie Dodds-Streeton and David Collins

Throughout their long history, bar dinners have not been reliably pleasant occasions. From mediaeval times, the obligation to eat communal dinners with legal colleagues was an incident of vocational training imposed by the Inns of Court on aspirants and practitioners who were there “not so much to make the Law their study, much less to live by the profession (having large patrimonies of their own) but to form their manners and preserve them from the contagion of vice.” Fortescue, De Laudibus

16 17 HE New Silks’ Dinner for new Senior Territory announced the new silks attend- The dinner took place in the Great Hall Counsel from all Australian States ing, in order of precedence. As each new of the High Court, attended by over 300 Tand Territories, which took place in silk was announced they stood and bowed people. the High Court at Canberra on 4 February to the Court. It was a relief that it was a Guests were entertained by succinct this year, was not compulsory, and proba- non-speaking part, which spared the risk and witty addresses from David Curtain bly included some barristers without large of exposure even a single sentence might QC (the incoming ABA president) and “patrimonies of their own”. The journey to have presented. All the new silks stood Griffiths S.C. of the Bar Canberra involves long distances for par- and bowed with all the skill and experi- (the Junior Silk), Ruth McColl S.C., outgo- ticipants from some States and a degree ence which had justified their appoint- ing president of the ABA, also spoke well. of disruption for almost everyone. It is ment. Gleeson CJ then addressed the new Justice Callinan proposed the toast to the testimony to the reputation of the event silks and their families. new silks and in a witty speech (published that so many silks, their partners, families The ceremony was followed by a below) pointed out the many parallels and friends and ABA members attended reception hosted by the Chief Justice and between the anxieties and egos of advo- the ceremony and dinner this year. justices of the High Court at which judges, cate and thespian. We and our partners Some Sydney silks travelled to Canberra new silks, ABA members, family and were seated with Richard Manly S.C. by car. Although a long drive, it proved friends mingled in a relaxed atmosphere. and partner, Robert Redlich QC, David by far the more reliable mode of trans- The reception provided the opportunity Bremner and Kirby J and his partner. It port this year as at least two participants to meet the judges and interstate practi- was a friendly, lively and convivial din- missed the ceremony due to flight delays tioners and to make the acquaintance of ner. The conversation never flagged and it caused by torrential rain in Sydney. some hitherto unknown new silks from never centred on law. Enquiries to other The occasion commenced with a short Victoria. Justice Gaudron then provided Victorian new silks confirm that they and ceremony in Court Room 1 of the High a warm welcome with drinks for the four their partners also enjoyed the evening Court. The Commonwealth Solicitor female new silks and their families. It was and considered attendance well worth General and the President or Chairman a friendly occasion, which Her Honour’s the effort. of the Bar Association of each State or guests much appreciated.

New Silks Dinner Speech at the High Court The Honourable Justice lan Callinan

OUR Honours, Queens and Senior direction. Don’t for example, treat a court Q. I beg your pardon. When they grace a Counsel, ladies and gentlemen. as Dame Nellie Melba is reputed to have cast, how do they act? Y My first task tonight is to con- treated an unrefined audience, by sing- A. With emotional intensity, consummate gratulate you on your appointment to silk. ing them, as she said, trash. You have to artisty, and true awareness. They are It distinguishes each of you as an eminent remember that you are cabs on the rank superb as . . . They are magnificent in member of an ancient and important pro- and obliged to accept any part offered to the role of . . . It is good to have them fession. In this country there is a tendency you. You do not enjoy the luxury Dame back. to discredit any kind of public distinction Edith Evans had in rejecting the role of as an incitement to unacceptable elitism. Lady Macbeth, on the grounds that she Let me pause there. Why has not some To do that is to prefer mediocrity, and could never bring herself to play the part enterprising counsel greeted the High to discourage industry, excellence and of anyone who had such curious notions Court on its procession into the courtroom aspiration. You should be proud that your of hospitality. with this? “It’s good to have your Honours professional peers and the chief justices The next piece of advice I offer relates back. You grace the judiciary.” But I have who have participated in the process of to an advocate’s vocabulary. All of, “As digressed. The interview continues: your appointment have singled you out your Honour pleases”, “I am indebted to as leaders of your profession. The primary your Honour”, “Your Honour puts it most Q. And how are their performances meaning of the word “elite”, as the choice, felicitously”, “Your Honour is ahead of me”, etched? or flower of a group, the best — in your “I wish I had put it as clearly as your A. Finely. They have the ring. case — in learning, advocacy and ethics, Honour has”, and, “May I adopt that as Q. What ring? remains. my submission”, are valuable and much A. The ring of authority. They bring new That completes my first task. My sec- appreciated expressions. But they lack the understanding to the role of Shake- ond is, I regret to say, a pedagogical one, variety, the originality and the richness speare’s immortal heroine. They make in short, to give you a few tips. And I pro- of the vocabulary of the world of the thea- the part come alive. pose to do that by reference to your sister tre which was discussed in this exchange Q. I see. Now the author writes a play — profession, from which much is still to be between an interviewer and a seasoned A. Sir, the mot juste continues to elude learned, stage and screen. critic:1 you. Playwrights do not write plays. I start with prima donnas, and by that, Q. Now, then, when great ladies of the They fashion them. I don’t just mean great divas. Although stage are in a cast — Q. How? some do succumb to temptation, the best A. They are never in a cast. They grace a A. With due respect for the eternal veri- silks will resist any inclination in that cast. ties.

18 19 Q. How else? must consider. He must, for instance, lated and fell off the side of the stage. His A. With deft strokes, scalpel wit, loving make sure his play has compelling embarrassment was compounded by the care, penetrating insight, and masterly moments. He must take care that it next line written for his opposite number craftsmanship. is well knit and fast-moving, and that who had just alighted from the train, “I Q. Why? it is brilliant in conception, builds up thought you must have had an accident.” A. So that the distinguished director may to an exciting climax, and ends on a An analogy can be drawn between direct the plays with authority and imag- happy note. Then, there is the character briefi ng solicitors and actors’ agents. ination. insight. We have all known solicitors who have Q. What kind of plays are there? Q. What about that? assured us that they will defi nitely brief A. Oh, their number is legion. There are A. Well, he must provide plenty of it, along us. Statements such as, “The senior Bar is dramas of frustration and dramas of with a scope. very weak these days”, “I’m glad you got extramarital love, or the eternal trian- Q. Must have a scope, too, eh? silk”, “You can count on me to brief you” gle. There are plays which are penetrat- A. Yes, preferably wide. are well known. Assurances of that kind ing studies and plays that are valuable are about as reliable as actors’ agents’ human documents. There are pageants, Let me say something now about the promises to get the part. One actor said which ought to be glittering, if possible. set. There’s not much more that can be this of his agent: “The most wanted crimi- Tragedies should, of course, be stark, done there. But after all, a courtroom is nal in Britain and the USA knew exactly and melodramas lurid, and spectacles, a pretty good set upon which to work. It’s how to elude his pursuers: he didn’t to be de rigueur, should be lavish, col- superior to many that professional actors bother about plastic surgery or false pass- ourful or handsome But lampoons must have on occasions to use. And, even on ports he just joined an actor’s agency and be merry, farces must be rollicking, and circuit, unlike a theatre company on tour, was never heard of again.” comedies must be either of ancient vin- it does not have to be bumped in the night Silks need to keep in mind that we tage or sophisticated. before the case. The acoustics are usually have an adversary system and be careful Q. What does the playwright do in a sophis- good, and the lighting reasonable. The to remember which side they are on. You ticated comedy? exits are clearly marked and are unlikely don’t want to excite the sort of question A. He pokes fun at our foibles. He dissects to lead to any confusion. Its general shape that Sir John Gielgud kept on anxiously our tribal mores. and the places for its props do not change. asking as he watched Spencer Tracy play Q. Using what kind of vein? You’re unlikely, therefore, to be accident Dr Jekyll and Mr Hyde, “Which one is he A. A rich vein of satire. prone on it. There is a recorded incident playing now?” Q. The task of the playwright sounds oner- of an actor playing a scene of a railway sta- One thing that you are usually spared, ous. tion. The part required him to walk along which actors sometimes have to suffer, is A. Oh, you have no idea of the angles he the platform. Unfortunately he miscalcu- public gallery participation. Some of you

18 19 may have heard the story about Robert judge had no lines at all in his only scene. same mind about the advocate’s efforts. It Newton playing Richard III. Following On the first night, after that scene, the would not be a good career move, how- a day of heavy drinking he and a fellow young actor came off in tears. The stage ever, to be as publicly outspoken about player arrived at the theatre only just manager asked what was wrong. The your instructing solicitor as the playwright in time to dress and go on stage. About young actor answered, “The swine drank John Osborne was in 1966 about theatre half way through his heavily slurred first the ink from the inkwell during my main critics when he said that they “. . . should speech Newton was interrupted by an out- speech.” be regularly exposed, like corrupt con- raged voice from the audience shouting A good analogy may be drawn between stabularies or faulty sewerage systems”. “You’re drunk!” Newton stopped, swayed the way in which you treat your junior An ambitious young silk should also downstage, and shouted across the foot- and the way in which an experienced star avoid making another observation of the lights: “You think l’m drunk? Wait till you treats his or her stage inferiors. Again kind which was made by John Osborne, see the Archbishop of Canterbury!” much can be learned from the conven- that playwrights have much the same Samuel Beckett’s Waiting for Godot tions of the stage. Once a stage manager view about critics as lamp posts have provoked his first London audience. When by mistake caused the telephone on stage about dogs. the two tramps were in the middle of to ring at an inappropriate moment. The One critical decision you’ll have to make their philosophising, a man in the audience leading woman picked up the receiver, is whether you want to avoid, or embrace, stood up and yelled, “Why don’t they get simulated listening for a moment, and typecasting. Holding yourself ready for the some work?” Instantly another member then handed it to the other, lesser woman, right case on a point of arcane law may of the audience jumped up and shouted on stage saying: “It’s for you darling.” turn out to be as futile as Dolly Parton “They haven’t got the time!” Another helpful example is provided holding out for Rigoletto. If your forte is Reference to coming and going down- by a failure of the leading lady to take in comedy, or torts, even if you’d like to stage or upstage provides another timely her cue. She failed to join the star and branch out into something more fitting reminder. Resist temptation, don’t ever a smaller part player on stage when she to your talents, think twice before doing upstage the judge. A good example of should have. The silence lengthened. In so. Everyone in the business likes instant what not to do is this. In a case in Brisbane desperation the young actor tried to fill brand recognition. If you have no track a senior counsel was arguing that an the vacuum by saying to the star “I really record of dancing backwards in high heels invoice which bore the words, “final think we must thrash this matter out!” don’t expect to be cast with Fred Astaire. account”, which the wholesaler recipient The experienced actor folded his arms and At the moment I have no further advice paid, and used for the calculation of its said, “What an excellent idea. You begin!” to offer you. As you progress in your retail charges, raised an estoppel against In the same way, when the judge asks careers you will, however, come to learn, an attempted subsequent re-adjustment an inconvenient question you may be able and indeed even develop, some further of the wholesale price upwards by the to deflect it by saying, “My junior assured tricks of the trade. The more generous of supplier. The judge, who had an unjusti- me he had covered that in our written out- you will pass these on, as I have to you fied reputation for financial prudence, line”, or, “I’m assured by my junior that tonight, to your successors as you move found the submission unattractive. He that case has not been referred to in any up the professional ladder. pointed out that he often received from reported decisions in the last 20 years”. The first of these dinners was held on Telecom, as it then was, and other gov- It’s always better to stick to the script, 6 February 1989. It was an early initiative ernment agencies, second, and even third to use the actual words of the judges of to give the Bar a more unified and national reminders, each stating “First and Final the past than to seek to improve on them. aspect. It has undoubtedly served that Account”. Counsel inadvisably made the Embellishments rarely work, as Anthony purpose well. The ceremony this after- fatal response: “I wouldn’t know about Burgess on tour in India discovered, when noon, and this dinner, held as they are in that Your Honour. I always pay an account he watched a film version of Hamlet in the High Court, have another, a Federal as soon as I receive it.” Hindi and formed the view that a grave significance. It is that although most of Costumes are of course important. The digger’s dancer and ten songs for Ophelia, you are appointed silk in your own States heroic star of a western is fully entitled to did little to enhance the original. Noel and Territories, under the various proto- insist on his white hat, just as a leading Coward’s advice to young actors applies cols of those places, you come here to lady of stage or screen is entitled to her equally to the Bar: “Learn your lines — the Court to notify it of your admissions, designer dress cut on the bias. By the speak up — and don’t fall over the furni- thereby underlining that the Court is not same token, you silks would do well to ture.” only a Federal Constitutional Court, but maintain your distinctive silk gown, and, of Lengthy submissions tend to be as inef- is also the final court of appeal for the course, at all costs, the full bottomed wig. fective as long plays. Writing of a play by States. After all, you are the star, although you Eugene O’Neill the critic Humbert Wolfe I wish all of you successful and fulfilling need to be wary about judges, who, like said “The theatre was packed, though a careers as leaders of your profession.2 the well known character actor Wilfred few may have died in the 49th act”. Hyde White as Colonel Pickering in My Solicitors, as well as having a role akin Notes: Fair Lady, is capable of stealing the show to that of agents have important roles as 1. Frank Sullivan, an imaginary interview. from under your eyes. critics and connoisseurs of performances. 2. A number of the anecdotes repeated in this Never forget, judges, like the stars, This can give rise to tensions between speech are collected, some with, and some one way or another, have the last word. briefer and the briefed. In the theatre the without attributions in The Book of Theatre A young actor in a repertory company actors, set, and light designers, stage man- Quotes compiled by Gordon Snell (Angus & was elated when he was given the role ager and even the prop mover think they Robertson, 1982). of defence counsel in a play in which the could have written the play better than veteran was to play the judge, because the the playwright. Solicitors are often of the

20 21 Introducing the New Silks for 2001 Prepared by Graeme Thompson and Judy Benson

T has been said only superficial people think appearances are unimportant.* Areas of practice: criminal law — almost exclu- IAnd so the addition of S.C. after one’s name is not there just for appearances. sively for the prosecution prior to appointment as Traditionally the Bar News has asked a few background questions to each of the a Senior Crown Prosecutor in July 1995 and there- new silks, but the information provided hardly tells us anything about the personality after in accordance with that appointment. and character of the new Senior Counsel. At first we thought about a new set of draft Reaction to appointment: delighted. questions which were as follows: 1. What does it feel like to reach your dream? 2. Will you seek further legal appointments in the years to come? 3. Do you feel your family and friends have made enough fuss since you became a silk? 4. What do you think are your special qualities that caused you to become a silk? 5. Were there any surprises for you in the people who: (i) took silk; (ii) did not become silk? 6. How many previous applications for silk have you made and what did it feel like to be refused? DAVID PARSONS 7. What would have been your reaction if you didn’t become a silk this time? Born 9 July 1950. Schooled variously at Bairnsdale West, Ringwood, Manly, Epping (NSW) and The Editors were disappointed that few of the appointees responded. Those Melbourne. responses we did receive we decided not to publish! And so after requesting infor- Graduated from Melbourne University in 1974 mation from each of them we give you this profile of how they see themselves. You (hons — 3rd class low) and thence to Alice Springs will note some see themselves with brevity, others — well they take a big picture of to work with the Central Australian Legal Aid themselves! Service. I had previously worked in (as opposed to starting) the Fitzroy Legal Service on a voluntary * Attributed to Oscar Wilde basis. I worked with the legal aid service for three Before coming to the Bar, Herman spent 14 years years before going overseas for a number of years. as a senior litigation partner in a major Melbourne On my return I was employed by the Aboriginal law firm. Legal Service in Darwin. I worked there for a Since coming to the Bar in 1986 Herman has couple of years before being called to the Darwin established himself as a senior barrister in the Bar. Once again, as in Alice Springs I had the great areas of employment/industrial law and in equal pleasure of working with a number of barristers opportunity/discrimination law. His experience from the Melbourne Bar. They, for the most part, in these areas has included administrative and unlike myself, have gone on to much greater constitutional law. things. As far as the work in Darwin is concerned GEORGE McGRATH Industrial Law — counsel for the successful it can best be described as the sort of thing that if Signed Bar Roll 1 March 1968. parties in leading cases such as Gerrard v Mayne I had the time to describe to you and you were a Areas of practice: transport accident and work- Nickless (s.127A — unfair contracts), Moore v right-minded person you would say at the end of place personal injuries, medical negligence, occu- Australian Airlines (industrial dispute) and the description — “I would have paid to do that” piers’ liability. MUA v Patricks (conspiracy). and I would agree. Readers: Damien Cosgriff, Michael Bourke, Larry Equal Opportunity Law — counsel for the suc- I returned to Melbourne to join the September Dent, Melanie Young, Christopher Nettlefold. cessful applicants in the leading cases of Waters 1982 intake and then read with Robert Richter Career highlights: Surviving serial legislative v PTC (the scratch ticket case) decided by the after Peter Faris asked him if it would be alright. assaults on my principal areas of practice. High Court, Sinnapan v State of Victoria (the I read in the chambers that came to be known Hopes and aspirations: to continue to survive Northland school case) and the State of Victoria v as Suite 27A in Aickin and I have never left save and to get some help doing it. Bacon (intellectually disabled students) decided for the six years, on and off, that I spent in by the Court of Appeal. prosecuting a longish trial. Apart from those years (1990–6) I have travelled through most of the States of Australia representing Aboriginal people in their desire to have their lands restored to them. When I am not doing that I am in Melbourne involved in primarily a criminal practice. As long as my family don’t mind (too much) I would like to continue what I am doing for as long as I can sit comfortably on the ground taking instructions without my legs HERMAN BORENSTEIN getting pins and needles too badly. Admitted to practice in 1970; signed Bar Roll Thank you for the opportunity of not answer- 1987. COLIN HILLMAN ing those inane questions. Areas of practice: accredited mediator, consti- Signed Bar Roll 8 October 1973 tutional and administrative law, equal opportunity, Reader: John Smallwood (now His Honour Judge industrial employment law. Smallwood).

20 21 LESLIE GLICK BRIAN WALTERS JULIE DODDS-STREETON Admitted to practice 1974; signed the Bar Roll in Came to Bar 1982. Read with Barton Stott. Now BA (Hons) LLB (Hons) (Melb) MA (Mon) 1974. at Flagstaff Chambers, a great set of chambers Previous positions: Tutor Dept of History, Read with: Jack Fajgenbaum QC. with fine sense of community. Co-founder, Wild University of Melbourne, Senior Lecturer, Law Readers: Samantha Marks, Mark Robbins, Fiona magazine. On committee, Free Speech Victoria School, University of Melbourne. McLeod, James Nixon, Aileen Ryan, Professor and Liberty Victoria. Wide practice, including I am currently Counsel Assisting, HIH Royal Francis Trindade, Anthony Young and Michael administrative, criminal and commercial law. Commission. Gurvich,. Prominent cases: I began my working life teaching Tudor and Areas of practice: commercial litigation and • acted for Senator Bob Brown when he was Stuart history at the University of Melbourne. I trade practices. I have a keen interest in the pro accused of obstructing lawful forest opera- completed my law degree as an older student and bono scheme especially for community environ- tions in East Gippsland. The operations were for ten years lectured in Company, Insolvency, mental groups. held not to be lawful. State Parliament passed Equity, Property and Intellectual Property at the Graduated from Melbourne University with retrospective legislation to legalise all logging in Law School, University of Melbourne. LLB (Hons) 1971, with first class honours and East Gippsland; I had not originally intended to practise, but Supreme Court Prize. Completed LLM (Dist) at • acted for Konrads Kalejs (and against Carlos for a teacher of commercial law, particularly London University in 1973, majoring in legal his- Cabal) in relation to extradition proceedings; company law, it was a logical step to read for the tory. I have been influenced by my good friend • acted for the NCA when John Elliott attempted Bar to gain practical experience and a chance to Ross Robson QC (a noted Roman history scholar) to prevent charges being laid. apply the theory. I read over successive annual to resume my interest in medieval studies which I like my work to be creative and inspiring. A academic vacations with Joseph Santamaria QC, I pursued whilst at London University as a part of career at the Bar is, for me, part of a larger com- who bore my long-term tenancy of his chambers medieval history. So my hope is to one day soon mitment to the Earth and the community. graciously. shout myself some long service leave, to travel At the Bar, I have specialised in Company Law, to Georgetown University in Washington to take Insolvency, Equity and Property. I have acted in some courses in medieval cultural subjects. I large corporate collapses, including Pyramid, am contemplating going in first semester 2003. Regal Occidental, Brashs, Goldberg/Linter and My other interest is the Battle for Stalingrad as Ansett. I enjoy the drama and intellectual inter- part of Russian studies. I am planning on visiting est, and autonomy of work at the Bar. Volgagrad (nee Stalingrad) in September of 2002. I applied for silk for the unremarkable but compelling reason that it suddenly seemed time to do it. My principal non-professional interests are art, literature and history — extending now DAVID COLLINS to Egyptology, archaeology and Middle Eastern Completed articles with Don Cooper of Weigall & travel. Crowther, then went to the country to practice I also derive great pleasure from entertaining with Milo Davine & Co in Warragul for a year, to family and friends and spending time in my house provide an opportunity to pursue an interest in and garden in the Dandenong Ranges. competitive horse riding. Spent a year travelling before returning to Melbourne where I worked as a solicitor for a few years with Purvis & Purvis and PETER ROSE then Pavey Whiting & Byrne before coming to the Admitted to practice in 1976; signed Bar Roll in Bar. 1977. Areas of practice: In early years a “crash and Readers: Eddie Power, John Ribbards, Anthea bash” specialist, then in workers’ compensation MacTiernan, Michael Bright, Dennis Baker, Roger and personal injuries before developing a com- Douglas. mercial practice in which I have specialised for Areas of practice: aviation law, personal injuries the last 12 years. and insurance and administrative law. Career highlights: I have been fortunate to be DAVID H. DENTON RFD Hobbies: Car racing — MG histories and MG rac- briefed in a series of large and high profile pieces Admitted to practice in 1981; signed Bar Roll ing, motor bike riding — (Triumph ST), flying, fly of litigation including the Bank of Melbourne 1987. fishing, scuba diving. case, the litigation between Gina Rinehart and For any established barrister the appointment Peter has been an active contributor to the pro her interests against Rose Porteous and Lange v as silk is a true measure of one’s ability, by appli- bono schemes especially in the areas of migration Australian Broadcasting Corporation. cation of an objective standard. In this regard the and refugee law. Hopes and aspirations for the year ahead: to appointment is truly professionally satisfying. establish practice as a silk, to do my work well and The many letters I have received since taking enjoy it, and to maintain a balance of work, family silk aptly described the real feeling upon opening and other interests. the Chief Justice’s letter — “euphoric terror”! My appointment to silk was preceded by total support from my parents and family who I publicly acknowledge. Through very great sacrifice and hard work my parents gave me the opportunity to attend Xavier College. I remember it fondly and have had 22 23 at various times up to 10 classmates at our Bar I was articled to Mr Frank Shelton (now Judge (including Dick Manly S.C., Geoff McArthur S.C. Shelton, County Court) at Ellison Hewison & and Norman O’Bryan S.C.). Whitehead in 1981. After leaving Xavier, I attended the Royal I read in the chambers of Mr Peter Murdoch Military College, Duntroon, and then onto Monash QC in 1983. University where I completed my Arts and Law During 1982–84 I was a part-time lecturer in degrees in three years (and subsequently my the Faculty of Architecture and Building at RMIT. I LLM). was a legal member of the Building Appeals Board When I first came to the Bar I split my read- between 1994 and 2000. ing period — half with a criminal barrister (Brind During 1985 I was a resident tutor in law at St DAVID BEACH Zichy-Woinarski) — to learn evidence and cross- Hilda’s College, Melbourne University and a non- No information provided. examination; and, half with a commercial barrister resident tutor in 1986. (Peter McCurdy) — to learn the finer points of In 1993 and 1994 I was President of the Old pleading. Xaverians Association. In my time at the Bar I have been influenced I am admitted to practice in all States and by four people in particular. My father-in-law, His Territories. I was also admitted to the Honourable Honour Judge Geoffrey Byrne — for his fairness Society of Kings Inns, Dublin, and conferred and example. Jack Strahan QC — for his precision with the Degree of Barrister-at-Law in 1993 and patient exposition of the law. David Bennett together with John Digby QC, Peter Golombek, QC — for his court-room presence and engaging David Galbally QC, Ben Lindner and Judge Julie general knowledge. Finally, the great J.D. Phillips Nicholson. QC (now of the Court of Appeal). J.D. Phillips QC My career at the Bar has predominantly been GEOFFREY MCARTHUR ruled the 6th Floor of Owen Dixon Chambers East. in the area of building, construction and engineer- Monash Uni 1975–79. I was indeed fortunate to have chambers on his ing litigation in the courts, before arbitrators and Associate to Mr Justice McGarvie 1980–1. floor. He has the sharpest mind and knowledge of special referees. Over the years it has been my Articles: Arthur Robinson & Co 1982 the law and helped me understand the importance great pleasure to have been junior to John Digby Bar: 1983–2002 of thorough preparation of each case. QC, John Larkins QC, Maurice Phipps QC, George Read with Habersberger All in all it is my belief that being a barrister is Golvan QC, Peter Vickery QC, Bill Martin QC, Readers: Wallace the most wonderful life and lifestyle of all occupa- David Levin QC, Hugh Foxcroft QC, John Dwyer Age 44 tions, professions or callings. I now look forward QC, David Curtain QC, Alan Myers QC and Peter Married with two daughters to being a member of the inner Bar and to its chal- Hayes QC together with now Justice Goldberg, lenges and opportunities. Justice Byrne, Justice Hanson, Judge Wood and Judge Anderson. I have had four Readers. They are Andrew Kincaid, John Tuck, Romauld Andrew and Bernard Carr. I am the Bar’s representative on the Users Groups to the Supreme and County Court Building Cases Lists. I have been a member of the Building Dispute Practitioners Society and the Institute HAROLD (JOHN) LANGMEAD of Arbitrators and Mediators Australia, Victorian My previous pursuits: jackaroo, teacher, full- RICHARD MAIDMENT Chapter for many years. time musician (including a year with Mulga Bill’s No information provided. Prior to my appointment as a silk I spent the Bicycle Band), and commercial pilot (charter preceding 18 months preparing for and appearing pilot and flying instructor). in an arbitration as junior to Peter O’Callaghan QC Graduated in law from Melbourne University together with David McAndrew. in 1986. Over the last few years I have appeared in Articles at Phillips Fox 1987. construction litigation regarding the City Link Admitted to practice in Victoria on 7 April project, the old Beaurepair swimming pool, the 1988. Burnley Tunnel and the Arts Centre Spire. With all Read with Gordon Ritter QC and Ross Macaw the cranes on the city skyline I hope to be busy as QC. a silk and involved in many interesting and varied Signed the Bar Roll 26 May 1988. construction disputes. Admitted to practice in all Australian States RICHARD MANLY and Territories. I am the eldest of eight children (six boys and two Specialist in aviation law — national practice girls). I completed schooling in 1974 at Xavier in this field. General commercial practice includ- College together with David Denton S.C. and Geoff ing building disputes, property law, insurance law, McArthur S.C. In 1975 I commenced an Arts degree equity, contractual disputes, contempt cases, at Melbourne University. In 1977 I attended James public law, inquests, administrative law and Cook University in Townsville and completed my mediations. Arts degree. I also completed Criminal Law and Interests beyond the law: family, reading, fly- Legal Process. Thereafter I returned to Melbourne ing light single-engine and multi-engine aircraft, University and completed my Law degree. I hold MARK DEAN hang gliding, flying gliders, surfing (long board), the degrees of Bachelor of Arts, (History) (1981), Admitted to practice 1982; signed Bar Roll in swimming, playing a Martin 000-28H guitar, relax- Bachelor of Laws (1981) and Master of Laws 1983 ing in Apollo Bay. (1987) all from Melbourne University. Read with: Judge John Barnett I am married to Angie, a caterer, and have Readers: Clem Newton-Brown; Andrew Barnett three children (Sarah: Law/Arts at Monash Principal areas of practise: commercial crime; University, Daniel: Year 11 at Xavier College and occupational health and safety; environmental Lucy: Year 7 at MLC). law. 22 23 ArticlesArticles Articles Supreme Court’s 150th Anniversary Sitting

A ceremonial sitting of the Supreme Court of Victoria was held on Monday 11 February 2002, in the 12th Court. It was an historic occasion to mark 150 years of the continuous work of the Court. Court Ceremony The Chief Justice John Harber Phillips

ISTINGUISHED guests and trust being expressed in the oath of office, Stawell, who was Chief Justice for many friends. Today we mark 150 years to perform our duties to the best of our years from 1857, won the Grand National Dof performance of this Court’s core knowledge and ability “without fear, steeplechase at Flemington — riding his function, its raison d’être, the adminis- favour or affection”. own horse. The horse was called Master tration of justice in accordance with law. Following on the appointment of the of the Rolls. A function simply stated but attended, first three judges in 1852 more than 100 I am pleased to report that with the these days, with all the detail of universal other appointments to the Court have recent acquisition of the old High Court case management, specialist lists, appli- followed. I am afraid we current judges building and the construction of Court 15 cation of the latest electronic and other just cannot compete with the versatility — almost entirely by our own staff — the technology and referral to court-con- of some of our forebears. When George Court now has, for the first time in many nected mediation and arbitration. Coppin’s new Olympic Theatre opened years, a sufficient number of courtrooms The members of the Court accept in Exhibition Street in 1855, the orches- within this complex. All the members of the view of the Chief Justice of Australia tra struck up a prologue for which the the Court and staff now have satisfactory that judicial officers hold their privileges words were written by — none other accommodation and there is scope for and authority on trust, the terms of that than Chief Justice a’Beckett. Sir William further development. This will be neces-

Judges and speakers — front row: Justice Bemard Teague, Justice Frank Vincent, Justice Peter Buchanan, Justice Frank Callaway, Mr Justice John D. Phillips, Justice Robert Brooking, President of the Court of Appeal Mr Justice John Winneke, Chief Justice John Harber Phillips, former Chief Justice Sir (dark suit), Mr Justice William Orimiston, Justice Stephen Charles, Mr Justice John Batt, Justice , Mr Justice Barry Beach.

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ments in the defence of an Aboriginal man duct of the prosecution case against them charged with a wounding were akin to was not assisted by the circumstance that those successfully advanced to the High the principal prosecution witness, an ex- Court, a century and a half later, by the soldier known as “Old Waterloo” was as late Ron Castan QC. In the case of Mabo v deaf as a post. I shall quote a portion of Queensland, Barry argued that the Court an examination of him by the Solicitor- had no jurisdiction, in that the doctrine General: of terra nullius, based on an erroneous notion of an indigenous populace lacking a Question by Solicitor-General: “What is settled law, had no application in Victoria, your full name?” the Aboriginal peoples’ system of laws not Answer: “Yes, that is the prisoner” having been supplanted. Question: “What is your full name, Sir?” Our library also contains the transcripts Answer: “No, I don’t have a pension, you see of four of the trials of the Eureka Stockade I’m a little deaf.” miners. In all, 13 miners were tried for high treason. All were acquitted. The con- The Court has some notable historical associations. The same firm of solicitors, originally Arthur Robinson and Co, and now Allens Arthur Robinson, has provided We have in the library the secretary and the secretariat for our the workbooks of Sir Council of Legal Education on an honor- The Chief Justice John Harber Phillips ary basis for nearly 100 years. The present compiled secretary, Mr Colin Galbraith, is here as a sary because the volume and complexity when he was a barrister. guest this afternoon. of our work is steadily increasing. In the Remarkably, Barry’s This Court has had two homes and we year ending in June 2001 the court took in are in the second of them, which dates some 4800 matters. arguments in the defence from 1884. The first was situated on the In addition to the performance of our of an Aboriginal man corner of Russell and LaTrobe Streets judicial duties, we are also custodians; charged with a wounding and was opened, with much ceremony, custodians of a group of elegant herit- in 1843. A prominent clergyman, the age buildings and of the many priceless were akin to those Reverend Thompson, who was present, historical objects that are contained in successfully advanced to called upon the Almighty to ensure that them. the High Court, a century no perjury was ever committed in the We have in the library the workbooks Court’s witness box. I am afraid, however, of Sir Redmond Barry compiled when he and a half later, by the late an examination of the court records of was a barrister. Remarkably, Barry’s argu- Ron Castan QC. convictions sustained in the subsequent

Back row: Justice Tony Pagone, Justice David Habersberger, Justice Marilyn Warren, Justice Bill Gillard, Justice Philip Mandie, Justice Geoff Eames, Justice David Byrne, Mr Justice David Ashley, Justice Allan McDonald, Justice Philip Cummins, Justice Tim Smith, Justice John Coldrey, Justice David Harper, Justice Hartley Hansen, Justice Rosemary Balmford, Justice Murray Kellam, Justice Bemard Bongiorno, Justice Geoff Flatman.

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years reveals that this supplication was Professor Murphy, thank you for your here both the legislature and the execu- spectacularly unsuccessful. attendance this afternoon. Your pres- tive government, which, together with this An important part of this Court’s ethos ence serves to remind us that for many Court, constitute the three organs of State consists of preserving fine things from the centuries before the establishment of provided by our constitution and which past while embracing the very latest in courts such as this, the Aboriginal people are the cornerstones of our democracy. technology. I would believe that Court 13, created and enforced their own laws. Mr Mr Redlich and Mr Corcoran, thank you. with its decoration evoking the glories of Premier I thank you also. You represent You represent a learned and independent Ancient Greece, is both the most beauti- profession of, if I may say so, outstand- ful courtroom in Australia and the most ing quality. Without its constant, skilled advanced technologically. It is open for assistance, the effective operation of this your inspection after this ceremony. Court would not be possible. The efforts of the members of the Court I am pleased to report I would also like to acknowledge the would be fruitless were it not for our staff. that with the recent presence on the Bench of my predeces- My association with the Court now goes acquisition of the old High sor Sir John Young, who served as Chief back some 45 years and I can affirm that Justice from 1974 to 1991. Sir John’s pres- for all that time the work of the staff here Court building and the ence emphasises the element of continu- has not only been characterised by dili- construction of Court 15 — ity in the Court’s corporate strength and gent performance, but also by a universal almost entirely by our own its capacity to give to us the benefit of the respect and affection for this Court and all wisdom and experience of the past. that it stands for. I particularly commend staff — the Court now has, Distinguished guests, you honour us by this afternoon Messrs Niemer, Murray, for the first time in many your presence. Rest assured, this Court Campbell, Chapman, Lane, Smout, De years, a sufficient number will continue to uphold the rule of law Bruyn, Sabangan, Watson and Hoffman, and faithfully serve the community you who were responsible for the preparation of courtrooms within represent. of this courtroom for this occasion. this complex. Adjourn the court sine die.

May It Please the Court Robert Redlich QC, Chairman Victorian Bar Council

HE 150th anniversary of the found- is held by the executive and legislative modern conditions as no such provision ing of this great Court is an occasion arms of government. for special celebration. was applicable to either judges of the T Upon the establishment of this Court Commonwealth, or to judges of the High The Victorian Bar is honoured to be its judges were appointed by Her Majesty Court in England. able to share such an occasion with the in England and held office during her Court and so many of its distinguished Initially justice in Port Philip was not pleasure. without controversy. guests. It was not until the next century that A sound democratic society is founded Justice Willis, appointed by Her recognition was given to the fact that such Majesty, was briefly the resident judge in upon the supremacy of the rule of law a provision was quite out of harmony with and the confidence of its citizens in the Port Philip having been removed from the institutions which uphold it. Victoria’s Supreme Court of Upper Canada, came to turbulent childhood called for a strong Sydney and was banished to Port Philip well-respected court to guide it. because of his difficult disposition, bring- This great institution has played a sig- ing with him his personal baggage but also nificant and continuous role in enabling 431⁄2 tons of luggage. Victoria to realize its destiny. He was the source of much controversy The Court has through one and a half in the colony, culminating in the discovery centuries had the confidence of Victoria that he was making secret payments to and has administered justice fairly main- the only newspaper in Melbourne that taining individual rights and freedom. gave him favourable press. That Victoria has been relatively free While the Victorian Bar cannot guar- of constitutional controversy despite the antee favourable press for judges of this fact that the Constitution Act of Victoria court we will continue to ensure, with the has never embodied the doctrine of support of the Law Institute of Victoria separation of powers as contained in the and the Attorney-General, that public Commonwealth Constitution is in meas- discussion in relation to decisions of this ure due to the esteem in which this Court Court are fair and measured. Robert Redlich QC. Despite the legacy of Justice Willis,

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this Court, remained of paramount impor- tance. It is impossible at such a time to give individual recognition to the work per- formed by the many jurists of excellence who have graced this Bench and whose judgments have enhanced the great stat- ure of this Court. The Victorian Bar is delighted to see so many of this Court’s former members and distinguished jurists present to celebrate this special occasion including the court’s previous Chief Justice The Honourable Sir John Young. The rights and duties of a Justice of the Supreme Court have not altered over 150 years but the daily responsibilities of a justice have changed. The volume and complexity of work which comes before this Court has increased, as has the responsibility imposed upon each justice to ensure that the work of the Court is conducted expe- , Robert Redlich QC and John Corcoran. ditiously and efficiently. Justices sit on many committees and distinguished jurists such as Sir William the Victorian Bar is pursuing arrange- a’Beckett and Sir Redmond Barry were ments which would see an even greater appointed and the Court quickly estab- involvement of judicial officers on the lished a fine reputation within the- com Bar’s committees. munity. Despite the demands of judicial office As the Premier has observed, from its the judges of this Court have always earliest sittings, this Court was renowned offered their time to participate in the for discharging its judicial duties with a development and administration of the sense of fairness and a knowledge of the law, many distinguished members of law that gained the respect of all. the Court assisting in the important work An account by Sir Archibald Michie QC of the Chief Justice’s law reform commit- of his visit to Mr Justice Beckett shortly tee. before he was appointed Chief Justice is Another herculean task performed by a vivid reminder of the difficulties under the judges of this Court was the develop- which members of the Supreme Court ment of an entirely new set of court rules then laboured. in 1986. Having been informed that Sir William The Bar and the community at large was at St Kilda, Michie trudged off. He remain grateful that this Court remains so soon found himself at St Kilda in pretty receptive and responsive to the views of thick bush and reached St Kilda, which all those affected by its deliberatious. seemed to him to consist of only one In the year 2000 the trial division of house, the now Royal Hotel, on the shore. Professor Murphy presents ceremonial the court was divided into three specific He found Sir William, who with the leaves on behalf of the Aboriginal divisions, commercial and equity, common utmost seriousness and good faith community. law and criminal. endeavored to persuade him that he was A study conducted by the productivity spending a few days at what he called the judges acknowledge the true source of commission of civil and criminal jurisdic- “a watering place”. Michie in his writings judicial office. tions of Superior State and Federal Courts later confessed: It is the will of the people of Victoria throughout Australia reflected very favo- that is the foundation for the Court’s judi- rably on this Court, demonstrating that I hoped successfully, to disguise my con- cial authority. this Court disposes of its workload with sciousness that I was in about the dismal The Court strives to ensure that the great efficiency. and most desolate hole a civilized and social reasonable expectations of Victoria’s citi- The dedication of judges, masters and being could be buried alive in. zens are met by fair and just systems and staff must be commended. procedures. The Court has also remained abreast of Nine years later he identified this This Court stands as a monument developments in society. spot as covered by Alma, Sebastapol and to the fact that the fundamental values It recently introduced a comprehensive Inkerman Roads. and objectives articulated by the present practice direction, to encourage the use of In the 2001 annual report of this Court Bench have, throughout the history of technology in applications.

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It was also the first Supreme Court in Australia to arrange publication of all of its decisions on the Internet, so that deci- sions could be easily obtained and used without cost by the public. The legal profession in Victoria commenced 11 years before the estab- lishment of the Victorian Supreme Court when it was still the Supreme Court of New South Wales for the district of Port Philip. In 1841, four barristers and 14 solici- tors were admitted to practice, they hav- ing previously been admitted to practice in the United Kingdom. In the very first pages of the Victorian Law Times the Colonial Bar is described as little more than a collection of legal adventurers gathered together from all quarters of the globe: Former Governors-General and past and present members of the judiciary. Who are prone to acknowledge no law but their own will and to resent every attempt to prescribe rules of conduct for their guid- At that time immigration, particularly ance as an outrage on the rights and liber- from Asia and the South Pacific, had been ties of free men. The very first case the subject of very heated public debate. reported in the Victorian The government sought to prevent Mr Thus it was proposed by the editors Law Times reports was Toy from entering by exercise of preroga- of the Law Times that an Inn of Court tive power. should be established to consolidate the an action against a On application to the Full Court, Mr members of the Bar into a guild or fra- lawyer for professional Toy challenged the government’s power ternity to establish a censorship over the incompetence. to do so. whole body. In those times, a legal challenge to These fears proved unfounded largely the exercise of a prerogative power was because of the high standards which professional standards expected of them almost unthinkable. were imposed upon the profession by this by this Court. But a majority of the Full Court found Court. The judicial oath or its equivalent has in Mr Toy’s favour. This remarkable case Although the Bar was not to form a been required of judges in this Court since for its time explains the limitations of the council for half a century, the vigilance, its inception. power of the executive, and provides one impartiality and high standards of this Decision could not be made without of the first judicial explanations of the court had a salutary effect on the legal fear or favour unless judges were inde- concept of “responsible government” in profession from its infancy. pendent of all parties including the execu- the common law world, although it was The very first case reported in the tive government. the subject of marked disagreement Victorian Law Times reports was an This Court has throughout its his- within the Court. action against a lawyer for professional tory provided a shining example to the This beautiful court house, constructed incompetence. common law world of an independent almost a century and a quarter ago and The lawyer was required to prepare an judicary. occupying a full hectare of a city block, is affidavit of bail designed to prevent the The unwavering impartiality and inde- a constant reminder of the influence of the defendant ship captain from leaving the pendence of this Court was exemplified early Irish members of this Court. colony. by Chief Justice Sir William Stawell in It is no coincidence that the domed The affidavit was set aside because of the case of Mount and Morris, two young library which we all so admire bears a numerous errors. Soon after, the captain gentlemen, though of good and high social strong resemblance to the main hall in the sailed away. connection and to the law but whom the Central Court of Dublin. The plaintiff sued his lawyer for the Chief Justice firmly dealt with as criminals The interior of these courts are mar- large sum of 176 pounds. The lawyer in who were convicted of a cruel outrage velously finished and in recent years have the best traditions tried to have it dis- upon a number of Victoria’s indigenous been painstakingly restored although, as missed on technical grounds. community. the author Michael Challinger observes, He failed before Justice Williams at first In 1888 the full bench of this Court the courts share one other attribute, instance and then on appeal. decided Toy v Musgrove, a decision as the highly set judicial benches and lofty There are other recorded accounts of topical today as it was then. ceilings result in acoustics which are uni- how the Court in its earliest days dealt It involved an application from a formly poor. with legal practitioners. Chinese citizen who was attempting to This may explain Melbourne’s uncon- They were left in no doubt as to the enter the colony of Victoria. ventional statue of justice in which the

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blindfold has been removed perhaps to ensure that court proceedings could at Speech of the President of the Law least be observed. Although much work has been required Institute of Victoria over the last 60 years on the Court’s exte- rior the work of the Court flourished. John Corcoran The decisions of this Court com- manding the highest respect throughout AY it please the Court. Australia and in the common law world. Distinguished guests and friends Both legal practitioners and academ- Mof this Court. ics are immensely proud of the quality of It is with a sense of great honour that judgments produced by this Court. I represent the Law Institute of Victoria An examination of the earliest cases of and the solicitors of this State at this this Court reflects that this Court’s judges important ceremony. were anxious to ensure that the law We believe that the 150th anniversary should as far as possible be settled, a dif- of the formation of the Court is an occa- ficult undertaking given that many cases sion for celebration and congratulation. depended on circumstances purely colo- The first Chief Justice, Justice nial and required the application of princi- a’Beckett, had been a member of the ples for which there was no precedent and Bench of the Supreme Court in NSW and to which no fixed rule could apply. had the role of resident judge serving in It was recognised that it was as indis- Melbourne. It was, therefore, entirely nat- pensable in the colony as elsewhere that ural and appropriate that he should be the there be a uniformity of ruling of judges first Chief Justice upon the creation of the and that there be a record of the decisions Court. Before conducting our research for of this Court. this important occasion we had not real- This was a particular challenge as it was ised some of the extraordinary character- not believed that in the early years of this istics of the first Chief Justice. He led an court 100 copies of the Court’s judgments exemplary life and he saw it as incumbent John Corcoran would have been sold and the prospects of on him to exhort his fellow colonists to do remuneration for reporters and publishers likewise. As a consequence, he developed to Melbourne in 1839, where he set up law appeared very uncertain. a reputation for being puritanical. And, if offices in Queen St, owned 10 acres of Nevertheless the law reporters of I might say so, I am sure that the example land on the Yarra River. He used the land the times determined to undertake this which he has set has been followed scru- to grow grapes and hired a Frenchman to task and report on cases decided in pulously ever since. turn those grapes into wine. Apparently, every branch of the law submitted to the He gave particular leadership, no the auctioneers W.M. Tennant & Company Supreme Court for decision. doubt to the Court but also generally, on claimed that Mr Ogilvy’s “red hermitage They expressed a hope that after some the subject of temperance. After he was was celebrated”. Though I doubt Justice generations had passed away and Victoria appointed as Chief Justice he once said a’Beckett would have been one of those had fulfilled her destinies and taken her that he looked forward to the day “when celebrating. rank amongst the nations of the world, legislation will ever effectually banish from Strangely, for a judge of this honour- lawyers might look back upon the work of the colony the curse of intemperance with able Court, it appears that the Chief the Court with great respect. which it is so dreadfully afflicted”. Justice could also be somewhat short in The Victorian Bar is delighted to be In 1852 Chief Justice a’Beckett temper. On 30 January 1852 a group of able to do so in a public way and in the expressed his opinion that “not only the newly appointed magistrates attended presence of so many who have contrib- prisons, but the hospitals and lunatic the Court to be sworn into office, but uted to the work of this great institution. asylums owed the larger proportion of unfortunately their commissions were not Victorians may look upon the achieve- their inmates to the vice of drunkenness”, in the Court. The Chief Justice therefore ments of this Court since its inception and he could not but view with regret the declared abruptly that without the com- with great pride. increase in the number of public houses. mission’s being available for him to inspect The Victorian Bar congratulates the For his part, he wished there was “not he couldn’t administer the oaths and the Court on this special occasion and looks a single public house throughout the proceedings were abandoned. forward to the continuation of its special town”. History records that his audience The other issue upon which the first relationship with the Court which has responded with loud cheers. This causes Chief Justice had strong views was that of both served to advance the administration me to pause to inquire whether you, Chief the gold rush. The first criminal sitting of of justice and ensure the maintenance of Justice, have ever contemplated making the Supreme Court involved a criminal list the highest professional standards. such a speech and whether you have con- which was longer than anything which had If the Court pleases. templated what the reaction might be? been experienced prior to the creation of The history books do not mention the separate colony, and the Chief Justice anything about the relationship between took it upon himself to deliver to the jury Justice a’Beckett and the first President of an address in which he declared that the the Law Institute, David Ogilvy. Mr Ogilvy, quest for gold had introduced to Victoria a who was born in Scotland and emigrated change which “seemed to destroy all the

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promise of its primal dawn”. He was, in particular, concerned about men leaving their urban settlements to pursue their fortunes on the goldfield. This may have been the first occasion upon which the comments of a justice of this Court attracted unflattering com- ment in the press. It is recorded that The Argus, for example, in considering the Chief Justice’s remarks about the gold rush commented that “the more deeply we pondered it, the more dissatisfied we felt both with the sentiments it contains and with the manner of expressing them”. The newspapers did not mince words at that time and when we sometimes won- der today about editorials or newspaper comments, we should remember that in 1852 The Argus described the Chief Justice’s address to the jury as “very like The Court House and prison. Melbourne, Port Philip, NSW. that of a boyish aspirant to literary fame or a junior member of a sporting club”. I would now like to mention some which I wish to mention relates to the Not letting up, the Editor described his issues which the Institute feels are of standing of the court. address to the jury as “meaningless bom- contemporary importance. Victoria prides We believe that Victorians treat it as bast” and concluded with the withering (or should pride) itself on the fact that “a given” that the judges of this court statement that “we believe that we owe its court system works extremely eco- behave in an exemplary manner in the his presence (in this colony) less to any nomically. The Productivity Commission performance of their duties. I can report natural predilection to the employment, Report as to Government Services (2002) that a couple of years ago a group of sen- than to the seductions of 1500 pounds a provides a great deal of information for ior lawyers were musing over problems year”. So, even then, judicial salaries were those who have an interest in this subject. which have developed in superior courts under attack. As examples, Victoria’s expenditure on elsewhere. None amongst those present I should add that lawyers fared little the court system of $124 million is less could remember the slightest hint of better when it came to the ramblings of than fifty per cent of the expenditure in impropriety on the part of any member of a malcontent media. In 1842, the Port NSW. It is only $2 million more than in our Supreme Court. Of course, this is an Phillip Gazette reported on the economic QLD (with its much smaller population). entirely different issue from criticism of a depression that racked the city and in I am sure, Mr Premier, that these figures particular judge’s sentencing in a criminal particular the future for lawyers during are good news for you. A reason for the matter or even a critical comment in the those troubled times. The portrait is not very good result in Victoria is that a higher financial press following a judgment ina a flattering one. It reads: “As for lawyers, proportion of costs incurred are recouped complex civil action. These comments are they will certainly continue feeding on by the revenue earnt by the courts them- to be anticipated even if not, hopefully, in the community until all fail when they selves. the terms used by the ill-fated Argus in its will prey upon each other. Well, perhaps The other absolutely dramatic statistic commentary upon the efforts of our first this is as good a way as any of getting which one derives from the Productivity Chief Justice. rid of them.” Thankfully the relationship Commission Report relates to the speed But it is not an insignificant matter to between the media and the legal profes- with which civil matters are finalised. reflect upon the fact that in the 150 years sion has improved — slightly. If the measure of efficiency can be of its history there has been not the mer- Before leaving Chief Justice a’Beckett, determined merely by reference to the est whiff of scandal. The lawyers in this I must also mention that the first attempt number of cases which have been finalised State take pride in the fact that they are to create a circuit was not without dif- within a certain period, then our Supreme officers of a court which enjoys this stand- ficulty. On 19 February 1852 the Chief Court is amazingly efficient. Seventy-eight ing. Such standing is of course a reflection Justice travelled to Geelong to open the per cent of civil matters are resolved within of the calibre of the members of this Court first circuit sittings of the new Supreme six months of being issued as opposed to a both now and in the past. Several mem- Court and made what was described as national average of fifty-five per cent. The bers of this Court have moved on to the “a sort of triumphal entry into Geelong”. Victorian percentage is the highest, com- High Court, including perhaps Australia’s After giving the citizens of that city a fortably, amongst all State and Federal greatest jurist, Sir Owen Dixon, who further homily as to the evils of gold, the superior courts within the nation. Taking became Chief Justice of the High Court. first prisoner was placed in the dock for a slightly longer time period, our Supreme Also the influence of the judgments of this trial before it was then realised that the Court also disposes of more matters than Court in other jurisdictions in the common indictment could not be read because any of the other superior courts within law world is quite remarkable. there had been a failure to have promul- twelve months of issuing — eighty-four Although, as I have said, the first gated the necessary proclamation by the per cent as opposed to a national average attempt at a circuit sitting was a Governor authorising the establishment of sixty-five per cent. conspicuous failure, thereafter this Court of the Court. The other relatively serious matter has established an excellent circuit

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network throughout Victoria. The Institute believes that this has been of the utmost importance and that indeed it Chief Justice Phillips Addressed continues to be so. We cannot go too far in expressing a Historic Public Viewing of Supreme hope that the volume of circuit work will increase — at a recent opening of the Court legal year in the Mayor of that city when addressing the Court commented Saturday 16 February 2002 that he was delighted at the news that the number of criminal cases in Ballarat Chief Justice Phillips addressed members of the public, the first had risen to the point where an additional to do so in the Court’s history. circuit was justified. It was an occasion for high fives all around — a sentiment which didn’t appear to be shared by the local police superintendent! But the Institute has noted with great satisfaction the efforts of this Court including of course the Court of Appeal to take its business to the people in country Victoria. By doing so (no doubt at considerable personal inconvenience) the judges have helped to maintain the awareness of the Court for country Victorians. I should say one further thing about the relationship between the Institute and the Court. In recent years, some controversy has arisen as to publicity affecting courts, particularly criticism of certain judg- ments often in the context of sentencing in criminal cases. The Institute believes that it is important that balance should be Chief Justice John Harber Chief Justice Phillips addressing a group in the achieved in these areas. On so many occa- Phillips. Banco Court. sions when a judgment is criticised, once we have examined it we find that there are matters which have not been drawn to the public’s attention and that the criticism is quite unfair. It will continue to be the role of the Institute, whenever we are able to do so, to try to restore that balance and to use our resources to try to ensure a bal- anced debate. I should add also that the Law Institute, which will shortly record its 143rd anniversary, has had a long and happy association with this court for almost all of its 150 years and looks for- ward to that association continuing well into the future. Your Honours, at a time like this one would like to mention numerous other matters but time does not permit this. I conclude by reaffirming how proud are the solicitors of this State to be associated with this Court which is, for most of us, the court in which we were first admitted to practise and took our oath. We congratulate the Court upon this important anniversary and upon its con- tinued maintenance of standards of the highest quality. May it please the Court. Andrew Watson of Court Network speaking to a group in the Supreme Court Library.

30 31 Articles 25th Anniversary of the Federal Court

A national ceremonial sitting of the Court was Sydney, Melbourne, Brisbane, Adelaide, Perth and held on Thursday 7 February 2002 to mark the Canberra and linked by a video conference net- 25th anniversary of the first sitting of the Federal work. Court, which took place in Sydney on 7 February The sitting in Melbourne was held in Court One, 1977. Level 8, Commonwealth Law Courts, 305 William The ceremonial sitting in Melbourne was Street, Melbourne at 9.30 am. part of a national sitting, held simultaneously in

Chief Justice Reviews First 25 Years By the Honourable Michael Black AC, Chief Justice of the Federal Court of Australia

HANK you all for your generous — also lawyers of great distinction — who honoured and delighted we are that so comments about the Court. We all joined them soon afterwards. Those early many of the founding and former judges Tappreciate them very much. years were years of immense importance are with us today. I take this to be an occasion to to a new court facing, in the minds of When the Court first sat, the collection acknowledge and thank those who have some, an uncertain future. of federal statutes that conferred jurisdic- contributed so much to the first 25 years The work of the first Chief Justice and tion upon it was seen as rather a mixed of our Court. the other judges laid the foundations of bag. The unifying factor was, of course, I must begin, of course, with the work the Court upon which we now have the that they were federal statutes and the of the first Chief Justice and the other great privilege to serve. task of the Court was to exercise the original judges, and those other judges The example they set of intellectual judicial power of the Commonwealth in excellence, independence, fairness, the judicial resolution of federal matters Note: This is an edited version of the innovation and also courtesy still guide brought before it. Chief Justice’s speech. us today. May I say, again, how greatly Looking back now, it is plain that the

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early decisions of the Court were not only The District Registrars and other senior struction of Court buildings to replace of fundamental importance in establishing officers of the Court also deserve our spe- the shared and rented accommodation in its reputation, but also in contributing to cial thanks. which the Court, in most cities, began its the development of federal law. Many of But it is important to remember that life. That support, which has been greatly those areas of law were new, but they can the reputation of the Court, in the sense appreciated; it has richly served the public now be seen as forming essential strands that I am now using it, rests not only on interest in the provision of court buildings in the fabric of Australia’s law. the Registrar and the senior officers, or that enhance access to justice and public The jurisprudence that the Court has upon the valued members of the judges’ confidence in its administration. developed from the time of its foundation personal staff; it rests upon the work of It is also important that I acknowledge is now to be found in some 23,000 judg- all members of its staff. I am particularly the assistance received from succes- ments that the Court has in its archives, a grateful to all our staff at all levels, for sive Secretaries to, and officers of, the proportion of more than 70,000 cases that their dedication to the work of the Court Attorney-General’s own Department. have been brought before it for determi- nation. Of recent years, following amend- ments to the Judiciary Act, the Court has become a court of general jurisdiction in civil matters arising under federal law. The importance and growth of the Court’s work, and the growth in its areas of jurisdiction, is illustrated by the fact that our authorised Reports — the Federal Court Reports — now comprise 109 volumes and that, at the present rate of decision making, the 23,000 judg- Byrne J, Balmford J, Sir Zelman ments presently in the archives will have Cowen and Sir Ninian Stephen. doubled in number in approximately nine years. This, and the many procedural reforms and other innovations that have accompanied it, have been built upon the foundations laid by the former Chief Justice and the former judges to whom we pay tribute today. Before moving from the work of the judges to other matters, I want to pay my own tribute to the work of the present members of the Court. I simply want to say that it has always been, and is, an The Honourable Michael Black AC, The public and the profession. immense privilege and pleasure to work Chief Justice of the Federal Court with such outstandingly talented, hard- of Australia working and congenial colleagues. There is indeed a rare spirit within our Court. I and for the helpful and courteous way in thank them all for their work in the Court which they go about their duties. and in its administration. I think it is a tribute to the first Chief Looking back now, it is Whilst the reputation of a court must Judge and to the first judges that a culture plain that the early rest fundamentally upon the excellence of courtesy to all has, in my own experi- decisions of the Court of its judicial work and the jurisprudence ence as counsel and then as Chief Justice, that it develops, it also rests, in the pub- existed in this Court as something to be were not only of lic mind, upon the work of its staff at all valued from the Court’s very beginnings fundamental importance levels. 25 years ago. in establishing its In a self-administered court such as From time to time the Court is placed ours, the role of the Registrar is of special under unusual pressures, and at those reputation, but also in importance, requiring, as it does, a rare times I have had occasion to say that we contributing to the combination of skills. The Court has been are proud of our staff. Today is another development of federal exceptionally well served by its Registrars. day in which I would like to say that. There have been only three and I have had The relationship between a Court and law. the privilege of working with two of them the Executive Government has several — Mr Jim Howard, now deceased, and Mr facets, not all free from difficulty. But as The very important contribution that Warwick Soden. The Court is particularly Chief Justice, I have been fortunate in has been made to the work of the Court grateful to Mr Soden who has served the having had a very constructive and appro- by members of the profession must also be Court as its Registrar and Chief Executive priate relationship with three Attorneys- acknowledged. We are all grateful to the Officer since 1995 and with whom I and General — I can speak only of my time. Presidents of the bar associations and law the other judges work closely and well in The support that the Court has received societies for their generous words and, for the collegiate management of our Court. has included strong support for the con- our part, I want to acknowledge the great

32 33 assistance that the Court has received But this is within a framework, today, of system of courts. If this would mean one over the years from their members. We unity and co-operation. divisionalised court, it is not a view that I have been very well served in that regard. There are many examples of this in share. That would be a mistake. My own The importance to the administration of which the Federal Court has had the view is that the present system, as it has justice of a learned and independent legal privilege to take a part. They range from developed over recent years, provides a profession, such as we have in Australia, the work of the Council of Chief Justices structure with a good balance between should never be underestimated. of Australia and and the the requirements of efficiency and the dis- Finally, I want to say something about various harmonisation projects that it tinct elements of our federation. It gives the Australian judiciary, of which the has successfully promoted, to the annual proper recognition to the fact that we are Federal Court is a part. Looking back now conference of Supreme and Federal indeed a federal Commonwealth. It has over 25 years, we can see that there has Court judges, to judicial involvement in the advantage of being a system in which developed between the Courts more than the affairs of the Australian Institute of individual courts work harmoniously and just co-operation — and there certainly Judicial Administration and now, very co-operatively together. is that — but also a sense that we are significantly, to judicial involvement in And so I conclude by thanking all our members of an Australian judiciary and the establishment of the National Judicial judicial colleagues for attending and by that there is a strong bond of friendship College of Australia under the founda- thanking each and every one of you for between us. Many developments over tion chairmanship of Chief Justice Doyle. honouring us by your presence to mark recent years, including the growth of the It is surely illustrates the unity of the the 25th anniversary of the establish- Federal Court — but certainly not con- Australian judiciary that other judges have ment of the Federal Court of Australia. fined to that — enable us now to speak of joined us today in such large numbers all I thank the speakers for their generous an Australian judiciary. This is a judiciary around Australia. And this, despite the comments. I thank you all for your sup- of judges sharing common traditions and inconvenience of the hour in some places port, and for the assistance the Court has working together in the one federal nation and the pressures of work everywhere received over the past 25 years, the com- in the same great work of administering that face us in our daily role as judges. mitment we share with you in the great impartial justice according to law. Happily, It has been suggested that the creation ideals of justice according to law. though, distinctive developments and of the Federal Court might be a step on The Court will now adjourn. traditions of the component parts remain. the road to the establishment of a national

Development of the Federal Court over 25 years Address to the Federal Court of Australia’s 25th Anniversary Sitting by the Attorney-General, The Honourable Daryl Williams QC, MP. Court 21A, Law Courts Building, Queens Square, Sydney.

AY it please the Court in all its mani- expansion has been a response to the JUDGES Mfestations across the continent. increasing complexity of Australia’s fed- In the period since its establishment, the It is a pleasure to address the 25th eral system. And it has been a response to Governor-General has appointed a total of anniversary sitting of the Federal Court of the expanded role of the Commonwealth 94 judges to the Court. Australia on behalf of the Commonwealth in the nation’s life. A number of members of this Court Government. A major revamping of the federal jus- have gone on to hold higher office, attest- May I begin by acknowledging the tice system came with the establishment ing to the outstanding scholarship and immense contribution the Court has of the Family Court of Australia in 1976 ability of its judges. Despite the Court’s made to the rule and application of and the establishment of this Court in relatively short history, five of its judges Commonwealth law in the last quarter of 1977. have subsequently held appointment as a century. The Federal Court’s achieve- There were two main reasons for estab- Justices of the High Court. His Honour ments are many, and after 25 exemplary lishing the Court. Justice Brennan was elevated to Chief years there is certainly a great deal in the The first was to take over some of the Justice of Australia. Court’s history to celebrate. workload of the High Court in matters Another former judge of the Court, Sir The Court has distinguished itself as arising under Commonwealth or Territory William Deane, was to hold the office of a superior court of the Commonwealth. laws. The second was to provide a federal Governor-General of the Common-wealth. Indeed it has developed a well deserved forum to deal with special areas of federal reputation throughout the common law law. QUALITY OF APPOINTMENTS world as a world class civil court. The Court’s jurisdiction now covers Australia has been well served by the almost all civil matters arising under quality of its federal judiciary. Successive OVERVIEW Commonwealth legislation. The Court also governments have appointed members of Since Federation there has been a consid- has a substantial and diverse appellate the Bench on merit. erable expansion in the size and impor- jurisdiction. However, while the quality of our tance of the federal judicial system. This judiciary is exemplary, it is important to

34 35 In the Court’s first year, it could exer- The Service shares jurisdiction with cise jurisdiction under 11 Acts and 442 the Court in administrative law, bank- applications were filed.1 ruptcy, human rights and trade prac- By the end of 1990 when Sir Nigel tices under a range of Commonwealth Bowen retired, this workload had grown provisions. The Government is consider- to the Court exercising jurisdiction under ing other areas of suitable concurrent 90 Acts, with 2016 applications being jurisdiction for the Federal Magistrates filed.2 Service where they involve matters of low The Court is now given original juris- complexity. diction by over 150 Commonwealth Acts, Although it is expected the Federal and in the last financial year 5385 applica- Magistrates Service will reduce the bur- tions were filed.3 den of less complex cases on this Court, This increasing workload brings with it the considerable pressures on the Court the challenge of ensuring that the delivery and the nature of cases coming before it of justice continues to be timely, efficient remain a concern. and cost-effective. MIGRATION CASES INTERPRETATION OF The increasing number of migration cases COMMONWEALTH LEGISLATION before the Court has taken up a significant It is appropriate that this Court be the portion of the Court’s resources.4 The Attorney-General, The Honourable premier court for the interpretation of This is of particular concern when Daryl Williams QC, MP. Commonwealth legislation. so many of the applications lack merit. In this regard, it is not intended that Indeed, I note that in 2000–2001 only 5 recognise that its present composition the Court supersede the Supreme Courts. per cent of migration applications5 were does not reflect the diversity of Australian The role of the Supreme Courts is well- upheld by the Court at first instance. society. To an extent this reflects the lack defined. A significant number of cases, 31 per of diversity amongst those practising at There are, of course, areas of over- cent,6 were withdrawn by the applicants the Bar, especially at a senior level. lapping jurisdiction. However, this over- before the final hearing, considerable It is of particular concern that there lap avoids jurisdictional disputes and resources of the Court having already are few women who practise in areas of facilitates the delivery of justice to court been expended. Federal Court jurisdiction. However, it is users. The Migration Act jurisdiction presents pleasing that the number of women in the a significant challenge for Federal Courts judiciary is increasing. Of the 56 judges IMPACT OF THE FEDERAL and for the Government. and magistrates appointed to federal MAGISTRATES SERVICE The Court is aware that the Parliament courts simce March 1996, 16 have been The establishment of the Federal has legislated to implement a new judicial women. This is nearly 30 per cent of all Magistrates Service is likely to have a review scheme for refugee applications.7 new appointments. It may be possible in significant and enduring impact on the This legislation is intended to lessen the the near future to make further inroads, Federal Court. burden on the courts by reducing the particularly in relation to the Federal As the Court is aware, the Service has number of cases going to the courts. Court, without compromising on the qual- been established to deal with a range of I expect that we will all hear more ity of appointments to the Bench. less complex federal disputes that would about the operation of this scheme in the otherwise go to this Court or to the Family coming year and we will watch its impact ROLE OF THE JUDICIARY Court. on the Court’s workload with interest. Members of the judiciary are key players in upholding the rule of law. An independent judiciary is the corner- stone of our system of government. The courts have to maintain and enhance public confidence in the judici- ary by the quality of their work. Judges must remain impartial arbiters and avoid activities incompatible with their exercise of federal jurisdiction. The Federal Court is meeting those standards. GROWTH IN FEDERAL JURISDICTION/ LITIGATION As well as distinguishing themselves through their intellectual vigour, the members of the Court have a reputation for hard work and dedication. The Court is a busy one. Justice Finkelstein and Justice Merkel.

34 35 NATIVE TITLE WORKLOAD public accessibility, the Court has adopted The next challenge is to ensure that Another significant impact on the work- a number of innovative initiatives which the next 25 years are as noteworthy, and load of the Court has been in the area of have distinguished the Court as a world as distinguished, as the last 25 have been. native title. leader. The Government looks forward to work- I am conscious that this has been a The Court’s individual docket system ing with the Court to achieve that goal. challenge for the Court. and the Court’s e-Court strategy are two May it please the Court. Many native title cases do not fit the initiatives which have drawn accolades traditional mould of court litigation. The from litigants, the profession and lawmak- NOTES: number of parties alone increases the ers in Australia and overseas. 1. Federal Court of Australia Annual complexity of much native title litigation. These are initiatives of which the Court Report 1977–78. Slowly but steadily the case law on is justifiably proud. 2. Federal Court of Australia Annual native title is increasing, as is the number In this respect, specific mention should Report 1989–90. of native title determinations. be made of the Court’s role as leader in 3. Federal Court of Australia Annual Last financial year 21 native title deter- the haute couture of judicial attire. The Report 2000–2001. minations were made, bringing to 32 the Commonwealth is confident that the Court 4. The number of migration applications to number of native title determinations will continue to act as a leader in both the Court increased from 418 in 1996–97 made since 1993. It is pleasing to note that court innovation and judicial fashion. to 1121 in the last financial year, Federal a substantial proportion of these deter- Court of Australia Annual Report 2000– CONCLUSION minations were made by consent.8 The 2001, p. 43. Commonwealth appreciates, neverthe- At the first sitting of the Court 25 5. Litigation Involving Migration Deci- less, that consent determinations involve years ago, then Attorney-General the sions, Fact Sheet, Department of significant work by both the Court and the Honourable Bob Ellicott QC predicted Immigration and Multicultural Affairs, National Native Title Tribunal in assisting that the Court would evolve to play “a www.immi.gov.au/facts/09litigation.htm. the parties to reach agreement. significant role in the development of the 6. See above fact sheet. The Government acknowledges the judiciary and the law in Australia”.9 7. Migration Legislation Amendment professional and committed way in which This prediction has been realised very (Judicial Review) Act 2001. the Court has managed its native title quickly. 8. Federal Court of Australia Annual workload. Everyone who has been associated Report 2000–2001, p. 47. with the establishment and work of the 9. Address of Welcome by the Attorney-Gen- RECENT FEDERAL COURT Court is entitled to feel proud of its many eral, Mr R.J. Ellicot QC, 7 February 1977 at INNOVATIONS achievements. the swearing in of the judges of the Federal Coping with this significant and increas- Sir Nigel Bowen admirably steered the Court of Australia. ing workload has required the Court to Court through its first 13 years. Under adopt a flexible and innovative approach the leadership of Your Honour the Chief to delivering services to the Australian Justice, the Court continues to flourish community. and grow in stature as a world-class supe- To ensure operational efficiency and rior court.

Success of Individual Docket System Reflects Confidence in Court Address to the Federal Court of Australia’s 25th Anniversary Sitting by the President of the Law Council of Australia, Tony Abbott.

HE Law Council of Australia is very islation and government action seen over distinction and in a manner which com- pleased to join in the celebration of the past 25 years. mands the respect of those who appear Tthis Court’s first 25 years. While it is obvious that the amount of before the Court and are affected by its It is surprising to note that there federal jurisdiction has increased, there decisions. were doubts in 1977 about the extent of is also no doubt of the importance of That the Court enjoys the confidence federal jurisdiction and the necessity for the jurisdiction. The Court’s decisions of its users was recently demonstrated this Court. There can now be no doubt of on the application of Section 52 of the in the course of the Australian Law the significant breadth of the jurisdiction Trade Practices Act shape a significant Reform Commission’s work which led this Court exercises. One need only flip part of Australia’s commercial life. The to their report number 89 “Managing through the 109 volumes of the Federal Court’s decisions in the areas of native Justice, A Review of the Federal Civil Court reports to gain an appreciation of title, migration and industrial relations Justice System”. The Commission’s the reach of the work of this Court into are often seen at the forefront of highly report recorded the “consistent high the lives of Australian people and busi- contentious public debate. praise about the quality judging and effec- nesses. Of course, the expansion of the In the jurisdiction that this Court exer- tive management of the Federal Court” Court’s jurisdiction has also been assisted cises, it is accordingly of vital importance in consultations and submissions to the by the increasing influence of federal leg- that the jurisdiction be exercised with Commission.

36 37 These comments were of course made the legal profession has in the quality in the context of the primary focus of the of appointments to this Court is in part Commission’s work, which was an exami- attributable to the involvement of the legal nation of delay and cost in federal litiga- profession in the process of appointment tion. However, as to the quality of justice of its judges. The Law Council wishes to dispensed, the Law Council also notes that acknowledge its appreciation of the depth members of the Commission, in reviewing of consultation about appointments which reaction to their report, have commented the current and previous attorneys have that the Federal Court is regarded as a had with the legal profession. The public world class court. The Law Council inter- can be assured that every effort is under- prets this as praise of the highest order taken to identify the best candidates for and associates itself with it. appointment. One of the principal features of this A prominent feature of the Australian Court, which commanded a great deal Law Reform Commission’s inquiry into the of the attention of the Australian Law federal civil justice system was delay in Reform Commission, was the Court’s litigation, because delay often increases individual docket system. The success of costs. Sometimes delay can produce injus- the individual docket system illustrates, in tice. In this context, the legal profession is the Law Council’s view, two important fea- grateful for the efforts which the judges tures which have distinguished this Court of this Court and its officials have at all in the last 25 years. times taken to make themselves avail- First, the system was introduced in able quickly in urgent situations. A recent consultation with and cooperation with remarkable example was the application the legal profession, in recognition of the in the nature of habeas corpus issued principle that reforms and changes to President of the Law Council of out of the Melbourne registry in respect of practices are more likely to work effec- Australia, Tony Abbott occupants of the MV Tampa. One of the tively if they are shaped with the coop- many noteworthy features of that litiga- eration of those whom they affect. The dence which the legal profession has in tion was the extreme dispatch with which preparedness of the judges of this Court the Court. Simply, the system would not a case involving very complex legal issues, to consult with and listen to the legal work so well without that respect and and of great importance to the parties, was profession on procedural reform has been confidence. It has been remarked about disposed of within the shortest possible something which the legal profession has other places where a system of managerial times. A trial, mediation and appeal to the particularly appreciated. That prepared- judging has been introduced that a prin- full Federal Court were all accomplished, ness continues. The individual docket cipal reason for that system not working and judgments given, within 19 days of system is undergoing a review at present is the systemic non-compliance with the issue of proceedings. That this was able to to which the Law Council is contribut- orders and directions of the managerial be done reflects the commitment to public ing. Representatives of the Law Council judge. Such non-compliance is attributed service and justice of both the judges and serve on the Court’s Practice Committee, by commentators to insufficient respect the officials of this Court. chaired by Justice Von Doussa. for that judge. By contrast, in this Court It has been a theme of these brief The second feature which the success it may be observed that on the whole, and remarks that this Court has the confidence of the individual docket system in this with just exceptions, the rate of compli- of the legal profession. The Law Council Court demonstrates, in the Law Council’s ance with directions is very high. has supported and will continue to sup- view, is the very high respect and confi- The respect and confidence which port the Court and its independence. It will continue as far as possible to defend the Court against unfair and dangerous attacks. Every court, including this Court, must expect criticism from both legal and other commentators, but some types of comment and criticism have a tendency to undermine the public and political confidence which is ultimately necessary for the independent existence of those courts. Not all criticism can be met, but some must. In particular, the Law Council rejects any assertion that any section of this Court has any political or social bias. The Law Council has complete confidence that this Court has done, and will continue to do, justice according to law. The Law Council congratulates the present and former judges, registrars and staff of this Court on its first 25 years of Representatives of State benches and the profession at the ceremonial sitting. outstanding public service.

36 37 News and Views Legal Responses by Australia to the War Against Terrorism Dr James Renwick1

INTRODUCTION every necessary weapon of war — to the on 23 September 2001. This froze the HE term “terrorism” is not new. It disruption and to the defeat of the global assets of various foreign individuals, was apparently first used in rela- terror network. groups and entities linked to terrorist Ttion to “The Reign of Terror” of the acts or supporters of terrorism — and French revolutionaries of 1793–94. But Mr Bush’s words were no exaggera- that list has been steadily added to. the current war against terrorism is some- tion. Leaving aside the substantial mili- 2. The US Congress enacted the evoca- thing new: a war where in some ways the tary response by the of nations, tively named USA Patriot Act which main enemy is an idea. Defeating it has which is most evident in operations affect- strengthened the national government’s been compared with trying to destroy a ing Afghanistan, there have been very sub- ability to exclude supporters of terror- hydra-headed monster. There is force in stantial activities by governments in the ism or to deport them, and expanded the analogy. war against terrorism. the powers of US law enforcement bod- It will be recalled that killing the hydra, The international centrepiece of this ies to investigate and prosecute per- a monster with nine heads, one of which strategy is UN Security Council resolu- sons engaging in terrorist acts. was immortal, was the second labour of tion 1373, adopted unanimously by that 3. The US signed and expects soon to Hercules. It was a great challenge even Council under chapter 7 of the Charter ratify the UN conventions on “The for the mythical hero. First he tried to cut of the United Nations, on 28 September Suppression of Financing of Terrorism off its heads, but he found that for each 2001. The theme of the resolution was: and the Suppression of Terrorist decapitation another two heads grew. So, • preventing and suppressing the financ- Bombing”. with the assistance of his nephew he tried ing of terrorist acts; and 4. The US has moved to share operational another strategy, with greater success. He • denying safe havens to terrorists. information with other countries and to strangled the necks of the beast one by The resolution imposed a binding obli- encourage them to do the same, with one, lighting a fire to keep the other heads gation on all States to this end and also a view to suppressing terrorism and its at bay. Finally, Hercules dipped his arrows required States to review and strengthen financing. in the hyrda’s deadly blood — so enhanc- • border security operations; ing the weapons at his command. But in • banking practices; THE UNITED KINGDOM APPROACH the end, the poison on these arrows was • customs and immigration procedures; This approach has been fully supported by used to poison him and bring his life to a • Iaw enforcement and intelligence coop- both Australia and the United Kingdom. close. eration; and Furthermore the UK has enacted the A myth? Certainly, but perhaps an • arms transfer controls. Anti Terrorism, Crime and Security Act instructive allegory: terrorism is a difficult The resolution also required that each 2001, a very wide ranging statute which, concept to defeat, requiring new strate- state report to the Security Council on for example: gies if we are not to make the problems the steps it had taken, and what follows (a) provides a regime for freezing terror- worse, and we need to ensure we do not is largely taken from the reports provided ist assets and arranging for their for- poison our institutions or our way of life in to it by the United States of America, the feiture; the process. United Kingdom, and Australia. It is fair (b) increases the ability of governments to say that the responses are a powerful to share information between depart- THE UNITED NATIONS RESPONSE reminder of what nations states can do ments, and with other countries; Soon after the terrible events of 11 when they consider that their existence, (c) proscribes dealing with the ingredi- September 2001 in Washington and New and the way of life of their citizens, is ents of weapons of mass destruction; York the United States’ President said: threatened. (d) gives increased powers to police to fingerprint, search, examine and pho- We will direct every resource at our com- THE UNITED STATES’ RESPONSE tograph terrorist suspects; mand — every means of diplomacy, every Turning first to the United States response, (e) allows for detention of suspected tool of intelligence, every instrument of law the steps taken include the following: international terrorists, and deporta- enforcement, every financial influence, and 1. Mr Bush issued Executive Order 13224 tion in specified cases.

38 39 News and Views

THE AUSTRALIAN RESPONSE (f) receives or solicits money or goods, or • The Crimes (Hostages) Act 1989; Turning to Australia, the position is hardly the performance of services, with the • The Crimes (Internationally Pro- less dramatic. The detail may be found intention of supporting or promoting tected Persons) Act 1976; in the report by Australia to the UN the commission of an offence against • The Crimes (Biological Weapons) Act Security Council.2 I will only mention the section 6. 1976; key points. There are many Commonwealth stat- • The Chemical Weapons (Prohibition) The documents bring to prominence utes which already deal with terrorist Act 1994 and, of course; a little known statute called the Charter activities e.g. • provisions in the Crimes Act 1914 of the United Nations Act 1945 (Cth), • The Crimes (Aviation) Act 1991; dealing with offences such as treason,4 which, relying on the external affairs • The Crimes (Ships and Fixed Plat- treachery,5 sabotage,6 sedition and espi- power, permits regulations to be made to forms) Act 1992; onage; and give effect to decisions of the Security • The Nuclear Non-Proliferation (Safe- • provisions in the Criminal Code Act Council under Chapter VII in so far as guards) Act 1987; 1995 dealing with causing, or threaten- those decisions require Australia to apply measures not involving the use of armed force: see s.6. By operation of s.9 of the Act (and, in relation to States, by operation of Law Council Warning s.109 of the Constitution) such regulations prevail over inconsistent Commonwealth HICKS REACTION A WARNING ON COUNTER-TERRORISM LAWS Acts and State and Territory laws. By s.10, later Acts are not to be interpreted as HE David Hicks case must not necessary to assist in the defence of overriding the regulations. Tbecome an excuse to enact Australia from terrorism. There must be Regulations have been passed under counter-terrorism laws which override limits and safeguards on counter-terror- this Act, notably the Charter of the fundamental protections and individual ism measures,” said Mr Abbott. United Nations (Anti Terrorism rights, according to the Law Council of “For its part, the Law Council will Measures) Regulations 2001, and the Australia. examine the laws to ensure that basic Charter of the United Nations Law Council President, Tony Abbott, protections are provided such as: (Sanctions Afghanistan) Regulation said that there was a danger that meas- • the right to be fully informed of the 2001. The former freezes specified assets ures designed to protect Australian charges or information being sought (generally those identified by Mr Bush democracy from terrorism might dam- from a detained person; in his Executive Order), the latter reg- age the very rights and freedoms which • appropriate testing of the reasona- ulation imposes a sanctions regime on make up the democracy. bleness of the belief held by ASIO Afghanistan by restricting the supply of His comments follow the announce- or other agencies of the knowledge a arms, or the use of Australian aircraft and ment by the Federal Attorney-General person may have of terrorist activity ships to, or in relation to Afghanistan, that ASIO would be granted expanded prior to any strict time limits on peri- and prohibiting dealing with Taliban or powers and that persons might be ods of detention; Bin Ladin assets. The Attorney-General is detained without charge and without • strict time limits on periods of deten- able to seek injunctions to prevent current legal representation in order only to tion without charge; or proposed breaches of the regulations. seek information about terrorism. • entitlement to legal representation These regulations are only the beginning, “The Law Council recognises the of detained persons; however, of the response by Australia. Government needs to protect Australia’s • protection from prosecution from There are a number of Acts, which security interests, but in doing so, it self-incriminating information sup- are perhaps not so well known generally, must remain mindful of the rights of plied under powers of coercion; and which provide a formidable array of pow- individual Australians to fair treatment • adequate monitoring of the exercise ers for the government to deal with terror- by police and security agencies.” of the new powers, and review of the ism. They include banking powers e.g. the The Hicks case demonstrates how new legislation within two years.” Financial Transactions Report Act 1988 easy it is to create an atmosphere “Of course, the Government must act but also, for example, s.7 of the Crimes of hysteria when the facts are barely to protect life and property from terror- (Foreign Incursions and Recruitment) known. The Law Council understands ist acts, but there exists already ample Act 1978, about which so much has been Mr Hicks has not been interviewed by power to do this in the police, ASIO and written in relation to David Hicks, cur- Australian authorities, yet he is already other security agencies. Additions to rently a guest of the US marines. Thus, being labelled as a “traitor” with some these powers should be made only when s.6 of the latter Act creates offences aris- outlandish media comment canvassing compelling reasons can be advanced, ing out of incursions into foreign States the restoration of the death penalty. and the extraordinary powers are bal- with the intention of engaging in hostile “The Council believes the anced against safeguards to prevent 3 activities, and sub-sections 7(1)(e) and Government should allow any proposed abuse.” (f) create offences where a person: laws to be fully debated by Parliament “The Law Council will constructively (e) gives money or goods to, or performs and be subjected to the close scrutiny participate in this debate so that both services for, any other person or any of a Parliamentary committee. The the interests of Government and the body or association of persons with Government must demonstrate that the citizen are protected,” Mr Abbott con- the intention of supporting or pro- proposed new measures are reasonably cluded. moting the commission of an offence against section 6; [or]

38 39 ing to cause harm, to Commonwealth Some national security legislative activ- In conclusion, I return to the image Public Officials. ity pre-dated 11 September 2001: — for of the hydra, and the question, how do Notwithstanding that wide array of example, the Intelligence Services Act we destroy terrorism without risking poi- criminal proscriptions, the Commonwealth 2000 — had passed through Parliament soning what is precious to us and our Government has announced that it will just prior to then, and the Defence (Aid way of life. Justice Kirby of the High seek to amend the Criminal Code Act at to Civil Authorities) legislation had been Court of Australia may provide the general the first sitting of the new Parliament to enacted the previous year. The latter Act benchmark against which we can judge create an offence of “terrorism”, which is dealt with call out of the Defence Force at our country’s response in this regard. He apparently to be defined as either: the request of the States or the self-govern- recently wrote: • an act or omission constituting an ing territories for protection against domes- offence under the UN or other interna- tic violence (so fleshing out the mechanism The countries that have done best against tional counter-terrorism instruments; contained in s.119 of the Constitution), terrorism are those that have kept their cool, or call out of the Defence Force by the retained a sense of proportion, questioned • an act committed for a political, reli- Commonwealth to protect its own inter- and addressed the causes, and adhered gious or ideological purpose which is ests, and the powers and immunities given steadfastly to constitutionalism. designed to intimidate the public with to members of the Defence Force when regard to its security, and intended to called out in each case, and in dealing with NOTES: cause serious damage to persons, prop- terrorist incidents: see generally my article, 1. Barrister, Sydney. james.renwick@12thfloor. erty or infrastructure. “Military Aid to the Civil Power”, Bar News, com.au. The author currently holds an It has been suggested that such offences Journal of the NSW Bar Association appointment as Counsel Assisting the Royal are unnecessary, or too wide and vague. Summer 2000/2001 pp. 13–16. Commission into the Building and Con- It will therefore be interesting to see the The Intelligence Services Act essen- struction Industry, and as a Lieutenant- precise formulation of such offences. tially: Commander in the Royal Australian Naval There is considerable material in the • puts the Australian Secret Intelligence Reserve. The views expressed are his own. Australian report to the Security Council Service (ASIS) on a statutory footing 2. http://www.un.org/Docs/sc/committees/ dealing with: for the first time; 1373/ • border control; • sets out the functions of ASIS and the 3. 6(1) states: • ensuring that the refugee convention is Defence Signals Directorate (DSD); A person shall not: not used by terrorists; and also • provides immunities for officers of both (a) enter a foreign State with intent to • explaining the assistance which can be organisations in respect of the proper engage in a hostile activity in that for- provided in terrorist investigations and conduct of their functions; eign State; or prosecutions under the Extradition • provides rules to protect the privacy of (b) engage in a hostile activity in a foreign Act 1988 and the Mutual Assistance Australian citizens; State. in Criminal Matters Act 1987. • creates a parliamentary joint committee ... Paragraph 18 of the response contains for ASIS and ASIO which will examine For the purposes of subsection (1), what many regard as the most contro- expenditure upon, and administration engaging in a hostile activity in a for- versial response by the government to of each agency; eign State consists of doing an act the war against terrorism, namely the • protects the identify of ASIS staff and with the intention of achieving any proposal that a federal magistrate or a agents in the same manner as ASIO one or more of the following objectives senior legal member of the Administrative officers; and (whether or not such an objective is Appeals Tribunal could issue a warrant on • extends the oversight of each agency achieved): the application of the Director General of by the Inspector General of Intelligence (a) the overthrow by force or vio- Security (the Head of Australian Security and Security; see my article, “The lence of the government of the Intelligence Organization (ASIO)), with Intelligence Services Act 2001” in Bar foreign State or of a part of the the concurrence of the Attorney-General, News, the Journal of the NSW Bar foreign State; to hold an individual incommunicado for Association, Summer 2001/2002 pp. (aa) engaging in armed hostilities in up to 48 hours without legal representa- 10–13. the foreign State; tion, and give power to ASIO to question In conclusion, I suggest that national (b) causing by force or violence the such persons, when they have or may have security law — which is really the topic of public in the foreign State to be in information about terrorism, even if they this note — is no longer either an obscure fear of suffering death or personal are not themselves involved in the activ- backwater, or the occasion for wry jokes. injury; ity. It is in fact a challenging area of law, in (c) causing the death of, or bodily injury No doubt such a provision — and its part because its sources are disparate. As to, a person who: safeguards — will be given the closest I have written elsewhere: (i) is the head of state of the foreign scrutiny when introduced into Parliament. State; or If enacted it would mark a significant National security is located at a point where (ii) holds, or performs any of the change in the role of ASIO. law, politics, international relations, defence, duties of, a public office of the The capacity of Australia to detect and on occasion individual freedoms inter- foreign State or of a part of the and prevent terrorism, and whether the sect, and where, therefore, difficult and foreign State; or National Crime Authority and indeed ASIO sometimes controversial legal and policy (d) unlawfully destroying or damaging any ought to be reorganised to this end, is the choices must be made by parliaments, real or personal property belonging to subject of another review announced by judges and policy makers. the government of the foreign State or the government, and currently under way. [Bar News Summer] 2001/2001 p. 10. of a part of the foreign State . . .

40 41 (6) Nothing in this section applies to an Territory not forming part of the Com- 5. Sect 24aa, of the Crimes Act entitled act done by a person in the course of monwealth; or “Treachery”, states: and as part of the person’s service in (f) forms an intention to do any act (1) A person shall not: any capacity in or with: referred to in a preceding paragraph (a) do any act or thing with intent: (a) the armed forces of the govern- and manifests that intention by an (i) to overthrow the Constitu- ment of a foreign State; or overt act; tion of the Commonwealth (b) any other armed force in respect shall be guilty of an indictable offence, by revolution or sabotage; of which a declaration by the Min- called treason, . . . or ister under subsection 9(2) is in (2) A person who: (ii) to overthrow by force or vio- force. (a) receives or assists another person lence the established govern- 4. Crimes Act 1914 who is, to his knowledge, guilty of ment of the Commonwealth, — Sect 24 entitled “Treason”, relevantly treason in order to enable him to of a State or of a proclaimed states: escape punishment; or country; or (I) A person who: (b) knowing that a person intends SECT 24AB of the Crimes Act entitled “Sab- ... to commit treason, does not give otage” states: (c) levies war, or does any act prepar- information thereof with all rea- (1) In this section: atory to levying war, against the Com- sonable despatch to a constable “act of sabotage” means the destruc- monwealth; or use other reasonable endeav- tion, damage or impairment, with the (d) assists by any means whatever, with ours to prevent the commission intention of prejudicing the safety or intent to assist, an enemy: of the offence; defence of the Commonwealth, of any (i) at war with the Commonwealth, shall be guilty of an indictable offence. article: whether or not the existence of (3) On the trial of a person charged 7. Law Council Of Australia; 32nd Australian a state of war has been declared; with treason on the ground that he Legal Convention Canberra, 11 October and formed an intention to do an act 2001; “Australian Law — After 11 September (ii) specified by proclamation made referred to in paragraph (I)(a), (b), 2001”; http://www.hcourt.gov.au/speeches/ for the purpose of this paragraph (c), (d) or (e) and manifested that kirbyj/kirbyj_after11sep01.htm to be an enemy at war with the intention by an overt act, evidence of Commonwealth; the overt act shall not be admitted (e) instigates a foreigner to make an armed unless the overt act was alleged in the invasion of the Commonwealth or any indictment. ������� �����������

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40 41 News and Views Expert Evidence Paul Elliott QC interviews Professor George Hampel

The following is an interview between Bar News Editor, Paul Elliott better so that the burden upon lay jurors is QC and Professor George Hampel concerning the establishment of eased. This took the form of overwhelming the International Institute of Forensic Studies and its conference support for training for expert witnesses to communicate their views better and on expert evidence: “Causation, Proof and Presentation” to be to fulfi ll their roles as forensic witnesses conducted in Tuscany in July 2002. Professor Hampel outlines how more professionally as well as lawyers to the International Institute of Forensic Studies at discharge their roles as examiners and came to be established and the need for a re-evaluation of the role cross-examiners more effectively. (Australian Judicial Perspectives on of expert evidence in court. The establishment of the Institute Expert Evidence: An Empirical Study). and the need for further training for both lawyers and experts was instigated by two reports published in 1999 under the auspices Now the same views were expressed of the Australian Institute of Judicial Administration: Australian by the magistrates and many judges who were concerned about the way this hap- Judicial Perspectives on Expert Evidence and Empirical Study and pens with judges and not only with jurors. Australian Magistrates’ Perspectives on Expert Evidence: Elliott: Who did the studies and who ini- An Empirical Study. tiated doing the studies that have led to the establishment of the Institute? Professor Hampel emphasises the need for barristers to re-evaluate Hampel: These were initiated by the the manner in which they present expert evidence and their Australian Institute of Judicial Admin- relationship with experts from other disciplines. istration, and the surveys were prepared and conducted under the guidance of Dr Ian Freckelton a member of our Bar, Paul Elliott: How did the International offered by those who were interviewed, Dr Prasuno Reddy and Hugh Selby. Of Institute of Forensic Studies come to be but one of the most important ones course Freckelton and Selby are the well set up? was training, both for advocates and for known authors of the main work on expert George Hampel: Well, the issue of foren- experts. The report says: evidence. sic and expert evidence has always been Elliott: Was the survey done with the aim a diffi cult one, both for the courts and for The answers to the survey of Judges dis- to set up an institute or was this an idea practitioners and for those who give the closed a signifi cant recognition of the need that only came after the results came in? evidence. There are a lot of issues about for both experts and advocates to perform Hampel: The survey was not done with the best way of doing it, but, in the last any connection with the Institute, in fact few years there have been two surveys it was well before the Institute was set up. done; one of the Australian judiciary and But it was certainly one of the catalysts for the other of the Australian magistracy the establishment of the Institute. with unexpectedly good responses. The Elliott: So what is the objective of results of these surveys have been ana- the International Institute of Forensic lysed in two reports by Dr Ian Freckelton, Studies? Dr Prasuno Reddy and Hugh Selby. The Hampel: The Institute looked at the fi ndings include the lack of objectivity fact that there was no cohesive training by experts; the lack of understanding provided for lawyers and experts. There by experts in the forensic process of the were some training programs here and tension between the professions; very there; but there was nothing cohesive and strongly the lack of ability by experts to nothing that would build on the total fi eld, communicate with judges and juries, to both for lawyers and experts: We looked prepare relevant reports and generally to at what is described as “the immediate conduct themselves well in examination challenge ahead” in one of these reports. and cross-examination. There was consid- It’s an immediate challenge for the experts erable concern about the performance by and advocates alike to be persuaded that lawyers who deal with experts, and they they can improve their performance, and related mainly to areas such as diffi culty therefore their marketability, by acquiring because of lack of preparation, and also more skills and experience in dealing with skills of examination and cross-examina- areas outside the judicial compass of the tion. And so a number of remedies were law. I mean that’s the sort of general objec-

42 43 News and Views

tive of the Institute which looks at both expert evidence issues are not seen as tion of the experts in the sense that they research and training. So the research part of any one discipline but across disci- are invariably required to dedicate their arm, to look at what actually happens in plines. The keynote speaker is a professor effort to first the interest of the court various areas of this kind and then to train of law and a judge of the Court of Appeal and not the parties that they represent. both experts and lawyers to improve their in Amsterdam and he is a man very much In New South Wales there are some new performances. involved in education and development. rules about expert evidence that are being Elliott: When was the Institute set up There are other international speakers promulgated and I think that will happen and under whose guidance and which from Canada, from Australia — from New in Victoria very soon. So there are lots of University is it attached to? South Wales and Victoria — judges and developments, lots of focus in this area Hampel: Well, when I left the Bench and magistrates, a professor of surgery and a and many barristers simply use the tra- went to Monash, I became aware that barrister speaking of such issues as causa- ditional methods that we’ve all used for Monash University had various courses in tion as viewed by science and medicine as a long time and don’t think beyond it suf- various faculties which touched on this distinct from the approach to it by lawyers ficiently. That’s where I think some aware- forensic process. It occurred to me that an and courts, and there are a number of ness will come from this conference and Institute such as this which could operate other interesting sessions. There is the similar conferences and training. both nationally and internationally could usual program attached to the conference Elliott: So the aim is to assist in presenta- bring all that together. The Monash Law and pre and post conference tours. tion of forensic material at the trial? Faculty set up this Institute under my Elliott: Where do you think barristers Hampel: Yes, well as far as all professions chairmanship. Ian Freckelton is my two would gain an advantage by going to the are concerned, to enhance their skills to IC and there are two other members of conference? start with, apart from their thinking about it, Professor Bernadette McSherry, who it. And also there are lots of assumptions is in charge of the research arm of the made which are not based on any real Institute, and a senior lecturer, Jonathan research, real data, and so part of the Cluff, who assists me with the educational There is now a change attempt here at this conference and of the side of it. And so, the Institute has started in the ethical position of Institute is to research these areas, to get its work. We have already done a number the experts in the sense some proper basis on which conclusions of workshops for forensic scientists and about experts and about expert evidence chartered accountants. that they are invariably can be made. Elliott: When did it start? required to dedicate their Elliott: There has been a change in New Hampel: In the year 2001 with Justice effort to first the interest South Wales in relation to experts. Can Kirby as its patron. you just briefly explain what that is? Elliott: What courses are being offered? of the court and not Hampel: Yes, a whole set of quite complex Hampel: We are at the moment about the parties that they rules which require experts to exchange to finish devising a Graduate Certificate represent. reports to confer with each other, to in Forensic Studies for Chartered declare that they have attempted to resolve Accountants. It’s going to be a full-year the issues, to identify issues for the Court, course with a qualification, which will start Hampel: My impression is that barristers, and ultimately to declare that their first later this year. And we hope ultimately to unless they are particularly exposed to obligation will be to the Court. devise courses that will be open for both a lot of work with experts, really don’t I’ve always found that there is a fair lawyers and other experts in these areas think beyond the sort of basic approach bit of tension between the professions and and will provide graduate qualifications. to leading of evidence and cross-exami- people who give evidence in court and the But the important event is the first, the nation and don’t have the opportunity legal profession. And I think a lot of it is Inaugural Expert Evidence Conference. of broadening their perspective across due to the fact that the expert witnesses Elliott: Now, the Inaugural Conference on other disciplines. The aim of the con- from the other professions don’t really expert evidence is taking place in Prato, ference is just to broaden the thinking appreciate and understand and accept Tuscany from 2 to 5 July 2002. What is its and to encourage an interest in further their role. Therefore, there is always this aim and how will it operate? development consistent with the views tension which in my experience goes once Hampel: Monash has a permanent campus that have been expressed in these reports lawyers try and understand where the in Prato which is an old town just outside that really we all need to, everyone needs expert is coming from and their position. of Florence about 15 minutes by train, and to, broaden our perspectives. I think it’s Even more importantly, the experts appre- it is hosting this conference. The aim of significant that at the moment there are ciate the system and the way it’s based the conference is to explore the fields of great changes taking place in this area, and the way it works so that when they causation, proof and presentation skills by for example, the procedures in England choose to become part of it they under- experts and incidentally by advocates. So have changed significantly in the way stand it sufficiently to be better as experts the conference begins with a demonstra- that the courts treat expert evidence. Our in court and in reports. So I think that tion workshop in the form of a short trial Federal Court in Australia has devised a exchange between experts and lawyers is which will be examined and where some whole new series of programs and meth- a terribly important part of reducing that of the issues of presentation particularly ods of dealing with expert evidence. That unnecessary tension. will be considered. The conference will will eventually, I think, infiltrate into the consist of some papers from an array of other courts. There are great issues being international speakers, a considerable reconsidered about the impartiality of evi- number from Australia, but interestingly dence, and the court-appointed experts. in a number of disciplines so that the There is now a change in the ethical posi-

42 43 News and Views Opening of the Legal Year Monday 4 February 2002

St Paul’s Cathedral

Father Frank Brennan SJ, AO and The Archbishop of Melbourne.

44 45 News and Views

Justice Phillips, Justice Hayne and Chief Justice Black of the Federal Court.

Master Katherine Kings; Justice Balmford and Miss Rowena Armstrong, Lady Judges of the County Court at St Pauls. Canon, St Pauls.

Religion and the Rule of Law in These Troubled Times Opening Service for the Law Year 2002 St Paul’s Cathedral, Melbourne, 5 February 2002 Fr Frank Brennan S.J., AO The congregation. Isaiah 43:16–21, Psalm 119: 57–64, Matthew 5:21–26

T is a fine tradition that we gather to tain that despite the presence of the usual pray at the commencement of the law media scrum, not one word of this speech Iyear. But public manifestations of faith would be reported back in Australia. It and religious convictions are becoming was unimaginable that an Australian sol- more difficult for many Australians, I have dier would give such a speech in Australia. just returned from 18 months work in East If he were an American general, we would Timor where public prayer and acknowl- expect it. Here in Australia, the public edged dependence on God is common- silence about things spiritual does not place in the midst of such suffering and mean that spirituality is not present ani- loss. I well remember the mass in the Dili mating and inspiring the moral actors of Cathedral in thanksgiving for the work of our society including lawmakers (whether The Archbishop of Melbourne greets INTERFET. Bishop Belo was presiding. they be politicians or judges) and legal the Governor-General . At the end of the mass, Major General practitioners. Practised both in the art Cosgrove spoke. He recalled his first visit of distinguishing law, policy, and moral- keep thy precepts.” (Ps. 119:61,64) Let us to the cathedral three months earlier ity, and in the discipline of separating reflect on religion and the rule of law in when he was so moved by the singing that our roles from our personal dispositions, these troubled times. he realised two things: first, the people of we are delighted to join the psalmist this When admitted as a barrister and had not abandoned their God morning in praying together and publicly: solicitor of the Supreme Court of despite everything that had happened; “Though the cords of the wicked ensnare Victoria in 1978, my affidavit stated that second, God had not abandoned the peo- me, I do not forget thy law . . . I am a com- l was resident at Campion College, Kew. I ple of East Timor. As he spoke, I was cer- panion of all who fear thee, of those who mused at the time that Edmund Campion

44 45 St Patrick’s Cathedral

Deputy President VCPT John Billings, Michael Corrigan and Dominic Lennon.

Judge White, Rose O’Loughlin, Judge Bowman and David Martin at St Patricks.

— hung, drawn and quartered at Tyburn a year. The response to the usual greeting, Arriving at St Patricks. on 1 December 1581, 18 months after his “How are you?” is inevitably, “Busy, very return to England when he had presented busy. Yes I am well.” Lawyers are the only to the Dover port authorities as a jewellery people I know who start any description merchant — would have marvelled at how of their professional and personal life with things had changed. Before Campion had a universal declaration of “busyness”. It is fled to the continent seeking ordination as usually a sign of how all-embracing one’s a Catholic priest, he had been ordained profession is in one’s life. Sometimes we a deacon in the Established Church and know it can also be a polite and nervous had even given the speech of welcome at acknowledgment of the uncertainty and Oxford when Queen Elizabeth had visited risk of practising a profession which is the in 1566. I can only presume that he would clients’ last resort in difficult economic join with all of us in taking delight that times, and of the confidential demands a Jesuit now be invited to preach in the of a profession dedicated to resolving Justice Teague, Paul Coghlan and Anglican cathedral for the opening of the conflicts which cannot be the content of Geoffrey Horran. law year. We lawyers of diverse religious traditions and none need to concede that Campion had no reason to think well of the legal system which had wrongly con- victed him of conspiracy against the life of the Queen. His dying declaration was, “If you esteem my religion treason, then I am guilty; as for other treason I never com- mitted any. God is my judge.” Though no lawyer now would defend the legal proc- esses applied by the State to the person of Campion and his ilk, we could still debate the politics and high policy of the time that placed the sovereignty of the state and the popular will of the people (or at least the populist sentiment of the major- ity or the personal preferences of the powerful) above the rights and dignity of the one who happened to be different, the “Other” in their midst. Nowadays, I have cause to step into chambers or a legal office only a few times Representatives of the County Court. John Corcoran and Justice Teague.

46 47 superficial social discourse. No matter Mr Eric Vadarlis’s litigation in defence of transparent determinations because they what the initial disposition of our clients the Tampa rescuees was as the Federal are confident that any fair-minded per- or the availability of public funds, we Court so rightly said a matter of high son would accept that they are refugees. ought to have a professional commitment public importance, raising questions con- There was I contemplating the words to treating litigation as a last resort, urg- cerning the liberty of persons who were chosen for today’s service in this splendid ing our clients “first be reconciled to your unable to take action on their own behalf cathedral in the heart of Melbourne: “I brother . . . Make friends quickly with your to determine their rights. It was not as give water in the wilderness and rivers accuser, while you are going with him to the State proposed an attempted, unwar- in the desert, to give drink to my chosen court, lest your accuser hand you over to ranted interference with the executive people”. (lsaiah 43:20) the judge”. (Mt. 5:25) power central to Australia’s sovereignty I am amongst a minority of Australians As lawyers, we are privileged to be as a nation. There are times when lawyers who presently believe that a blanket able to view any conflict from all sides. As inspired by the law of the Old and New detention policy and the Pacific solu- reconcilers, we seek justice, truth, mercy tion are morally reprehensible as well and love. Jesus’ articulation of the new as being impractical in the long term. I law which we have heard in this morning’s live in a democracy where that is not the gospel from the Sermon on the Mount is As lawyers in a democratic prevailing public opinion nor the moral an impossible prescription but an appeal- society espousing a assessment of our lawmakers. Given that ing ideal. Whichever side of the Bench we commitment to the rule detention is an integral component of the are on, whichever side of the Bar table, government’s present border protection we have all been angry with one of our of law, we have a role policy, it is essential that the time delays, peers at some time, and we have definitely not only as personal uncertainties, and psychological trauma expleted, “You fool” if not in open court, reconcilers but as the exacerbated by the events of September then when we return to the camaraderie 11 and the federal election now be put of chambers. This morning we gather in architects of a legal behind us as quickly as possible. Because this cathedral, and like the Jews in the system which can bring of those events, every inmate in Woomera Matthean Christian community who still reconciliation and justice (including the bona fide refugees) will came to the temple to bring their gifts to have spent an additional five months in the altar, we must pause and remember to all those who are detention — five months of despairing not those against whom we have a griev- subject to the jurisdiction. isolation which drove people to sew their ance, gripe or grudge but those who have lips so that they might be heard. They a grievance, gripe or grudge against us. To Testaments are called to put themselves are now to be heard. Surely it is time commence this law year with a pure heart on the line publicly even in the midst of for government and the community to and an open mind we should attempt to be political controversy. respond with a renewed commitment to a reconciled to the one who feels wronged The consoling and optimistic Deutero- determination process which is “fair, just, by us. This is a big ask. It is so much Isaiah directs his words to the Chosen economical, informal and quick”. Now that more than the old law and the established People in exile. They are to be liberated the election is over, surely it is time for norms of social discourse and propriety. It by Cyrus, a foreign king. In their isolated government and all major political parties is the new law of Jesus put before us so detention in Babylon, a foreign place, they to concede that asylum seekers are not that we might truly bring reconciliation constantly hark back for the consolation criminals and that their detention should where there has been none and to make of the Exodus when Yahweh made a path not be any more dehumanising, isolating things new. “So if you are offering your gift for them through the waters and then or remote than the detention imposed at the altar, and there remember that your drowned their enemies in the sea. But upon convicted criminals. brother has something against you, leave they are chastised: “Remember not the It will not be too long before protracted your gift there before the altar and go; first former things, nor consider the things of detention of children in the heated isola- be reconciled to your brother, and then old. Behold I am doing a new thing, now it tion of Woomera will be seen to be a moral come and offer your gift.” (Mt. 5:23–24) springs forth, do you not perceive it? I will obscenity, especially when some of them As lawyers in a democratic society make a way in the wilderness and rivers in have fathers living here in Melbourne, espousing a commitment to the rule of the desert.” (Isaiah 43:19) happy to resume their parenting respon- law, we have a role not only as personal Having recently returned to Australia, I sibility. If the media were allowed inside reconcilers but as the architects of a legal happened to be in the Woomera Detention the one-kilometre fence to show ordinary system which can bring reconciliation and Centre last week when the government’s Australians the sight of women with little justice to all those who are subject to the Immigration Detention Advisory Group children behind razor wire in the middle jurisdiction. Members of our profession visited and met with hunger strikers. of the desert, many Australians would must be heard in the public forum when They were the first persons wearing the surmise that there must be a better way. political conflicts relate to the liberty, dig- government mantle who were perceived In helping the community set its moral nity and rights of the person against the to be listening and understanding after compass, we lawyers should continue power of the State. To raise one’s voice is months of silence, absence, delay, and to draw attention to the jurisprudence not necessarily to seek membership of the public abuse of these people as criminals of other countries which are not so sus- chattering classes or of any other elite. during an emotive election campaign. ceptible to our Australian isolation and Difference of opinion from commenta- They acknowledged that the majority of hysteria on these matters. The UK Court tors who read the public mood can assist Hazara inmates fear persecution back of Appeal last October had to consider the society’s ultimate quest for reconciliation home no matter who is in government. lawfulness of detention of Kurdish asylum and justice for all persons. Action such as These asylum seekers want fair, quick and seekers for more than ten days while their

46 47 48 49 applications were processed. The Court of Melbourne Hebrew Congregation Appeal noted the UK government’s policy decision “that, in the absence of special circumstances, it is not reasonable to detain an asylum seeker for longer than about a week, but that a short period of detention can be justified where this will enable speedy determination of his or her application for leave to enter.” Though conceding that “the vast majority of those seeking asylum are aliens who are not in a position to make good their entitlement to be treated as refugees”, the Court of Appeal went on to state its unanimously held belief “that most right-thinking peo-

Praying for God’s help and guidance at the commencement of this law year, may the Australian The Synogogue. legal profession be able to assist us in the resolution St Eustathios Cathedral of conflicts which cloud Isaiah’s vision of water for those in the wilderness and rivers in the desert.

ple would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is risk of their absconding or com- mitting other misbehaviour.” Let’s pray for those lawyers keeping watch at Woomera, Curtin and Port Hedland. Praying for God’s help and guidance at the commencement of this law year, may the Australian legal profession be able to assist us in the resolution of conflicts which cloud Isaiah’s vision of water for those in the wilderness and rivers in the desert. May we be the professional exem- plars, leaving our gift here at the altar and daily acting in the hope that before we return to this place next year we might be The Chief Justice at St Eustathios. able to be reconciled to our brother or sis- ter, making friends with our accusers (Mt. 5:25). What will distinguish us in this year of professional service is not the achieve- ment but the hope which informs our efforts to provide a service to the nation -- justice and reconciliation for all, without fear or favour, whether they be one of us or “the other” in whom we see reflected something of ourselves and of God. “The earth, O Lord, is full of thy steadfast love; teach us thy statutes.” (Ps. 119:64)

48 49 News and Views The Exquisite Hour A vision of a Superior Court in Australia in the year 2025 The Chief Justice John Harber Phillips’ welcome to the Supreme and Federal Court judges’ conference held in Melbourne in January 2002.

N his remarkable poem L’Heure modified in the aftermath of the terrible room. Groups of the public are invited Exquise Paul Verlaine writes of those events of 11 September 2001. to the “open days” by advertisements Irare magical evenings when the radi- All the judges are members of the placed in the media. They attend at the ance of the setting sun is picked up and International Association of Judges. In the court where they are addressed by the continued by that of the rising moon. It is first decade of this century many more Chief Justice. They are given a report on the period of this beautiful transference of common law countries came to be involved the structure and operations of the court light that he describes as “the exquisite in this association. Australia’s role in the and provision is made for a question and hour”. association is now significant. Formerly, answer session. The exquisite hour cannot occur with- Australia was merely a member of the For the community generally the court out a combination of a clear, lengthy and oceanian regional group. Now a separate also maintains its own information desk at bright sunset and an early rising full moon. Australian section exists and operates. its main entrance. This is linked with simi- As you would expect, this combination The secretariat of the association, now lar information centres in all of the public does not happen very often. Indeed, some located in New Zealand, circulates an enor- libraries. uncharitable people would say that, in mous amount of useful information to the Melbourne, it cannot even be contem- member countries. COURT VISITORS plated. Well, I am pleased to inform you As the judges move through the commu- that the combination did occur here ear- THE COURT’S RELATIONSHIP WITH nity they make it a practice to invite peo- lier this month and an “exquisite hour” THE COMMUNITY ple they meet to attend at sessions of resulted. For many years now the judges of the the court as court visitors. This process As Verlaine has explained, extraordi- court have devoted much attention to their produces each year visits by some hun- nary things can happen during “the exqui- relationship with the community. In this dreds of citizens — a good cross-section site hour”. People long separated come connection they have seen their involve- of the community. After their visits they together in spirit, perceptions through ment with schools as a very significant are invited to express their views about the senses are greatly refined and, impor- element. Indeed, it was at the suggestion the way the court works, and these views tantly for this paper, accurate visions of of the judges that two-year “community are collated so as to provide independent the future may be obtained. justice” courses were established in all feedback on the court’s operations. I have to tell you that during this recent schools for all students. These courses “exquisite hour” I obtained what I believe teach legal principles and court organisa- THE COURT’S OPERATIONS to be an accurate vision of a superior court tion and practice. Mediation, arbitration On the civil side, a plaintiff is generally in Australia in the year 2025. I would like and negotiation of disputes are fully cov- required to provide to the court a “notice to share that vision with you this morning. ered in them. The judges also sponsored before action”, to be served on the pro- Please come with me now while we visit the development of materials to enable spective defendant and an insurer if appro- the court. “justice systems” to operate within the priate. Pursuant to court rules, sufficient schools. These materials have included detail must be included in the notice to THE JUDGES scenarios which can be developed by the enable a prospective defendant to reason- Somewhat more than 50 per cent of the students generally (not just the legal stud- ably assess the claim. The defendant must judges are women. For reasons that will ies students), so that they can devise and send a response to the notice within a shortly appear, all the judges are fluent in conduct their own model criminal, civil 60-day time frame. a language other than English — usually and mediation proceedings. Each judge of No formal proceedings can be com- European or Asian. Many are fluent in the court visits at least two schools each menced in the court unless the dispute several languages. At any given time sev- year, usually in conjunction with one of involved has been first referred to court eral of the judges are serving on courts in the school “justice system” exercises. The annexed mediation or some other alterna- other jurisdictions, both in Australia and Chief Justice gives an annual prize for the tive dispute resolution method. However, overseas. These judges are replaced here best “justice system” exercise conducted. one of the panel of judges known as “entry by judges from those other jurisdictions on judges” can, for good reason, direct other- an exchange basis. Another judge sits on OPEN DAYS wise. the international criminal court, American Each year the Chief Justice conducts two A practice court operates for matters reservations about that body having been “open days” in the court’s largest court- requiring urgent attention.

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Case flow management is conducted by generation XML, but its essential benefits effective communication and comfortable individual judges and other court officers remain much the same, viz, information working environments. upon the principles of a minimum of direc- can be marked or tagged throughout a Much needed to be done to improve tions hearings, early identification of a trial document with the tags identifying the the physical, social and technological envi- date and an assured place for mediation as information contained within them. ronment for all courtroom users. an action progresses. In the years following the 2002 semi- Interaction between the profession, the LAW REFORM nar, the Courtroom 21 (Australia) team public and the court is accomplished by The judges of the court constantly obtain undertook, on invitation, assessment of electronic means. The court’s registry is the very latest information about law many courtrooms and jury rooms, sug- open on a 24 hour basis for both civil and reform, world-wide, in both its substan- gesting modification as necessary. criminal matters. tive law and procedural aspects. This has This court of 2025 underwent just such Proceedings admitted by the entry come about because the Commonwealth a process. judges are routinely initiated by electronic Association of Law Reform Agencies, Improvements in technology soon over- filing. All processing and extraction of key which came into being at an international came ostensible problems in the design data elements for the court’s database conference hosted by Australian and New and construction of historic courtrooms. being achieved automatically. Filed doc- Zealand agencies in Darwin in June 2002, In a related development, a number of uments are stored in an electronic case expanded to the International Association studies of jurors and their work soon even- file accessible round the clock via the of Law Reform Agencies in the succeed- tuated. Technology also overcame difficul- Internet. ing years. The agencies of more than 100 ties attached to the provision of the court As the proceedings continue the elec- countries are now members. transcript to jurors. tronic file enlarges with additional doc- Indeed, the nature of jury service uments, digital photographs and video RELATIONSHIPS WITH OTHER became a significant part of school- cur segments together with a variety of other COURTS ricula and its privileged place as a vitally multimedia information. The court has had, for some time now, for- important part of a citizen’s duties came to Interlocutory judgments and rulings are mal relationships with other courts outside be more keenly appreciated as attacks on posted electronically. Australia — a Court of Appeal and Assize democracy were beaten off internation- Video conferencing and on-line hear- in France and a Court of Appeal in Asia. ally. ings are routine and very effective for both These relationships involve exchanges of Well, ladies and gentlemen, like all trial proceedings, callovers and directions information, conferences and judicial vis- splendid things, the “exquisite hour” came hearings. its. all too quickly to an end. Dark clouds Transcript has been replaced by a dig- scudded towards the moon and my last itised electronic record of proceedings. DATA COLLECTION AND FUTURE glimpse into the void of 2025 was that of This includes video recording of evidence. PLANNING the smiling face of that very distinguished Speech recognition technology makes the Since the year 2010 there has been a cen- Australian and recently appointed patron record text searchable and access to the tral Australian agency for the collection of of the International Assocation of Law record is instantaneous. data relevant to the operations of courts. Reform Agencies — the former High Court In all these things Australian courts The court is a subscriber to this agency. Judge, the Honourable Michael Kirby, 85 have been greatly assisted by advice from The data collected relates to four aspects years of age and still going strong. the Australian Society of Computers and of the justice system — litigation filing the Law which has expanded nationally patterns, disposition patterns, judicial and from its victorian origins. support staff numbers and public percep- tions of the operation of the justice sys- THE COURT’S LANGUAGE tem. Following a sustained effort by the ADVERTISEMENT Some of you present may just recall that Australian judiciary during the first dec- shortly after the turn of the century the ade of this century, governments generally BYRON BAY Australian Council of Chief Justices and have agreed to fund courts on a four-year Two apartments for holiday the AIJA established a high level com- cycle basis and this court is no exception. rental — each 100 metres mittee to examine the computer language The Chief Justice heads a future direc- from beach called “XML” — “extensible markup lan- tions committee which seeks to identify guage”, for use in the courts. “justice indicators” to assist in planning. “Bayvilla” — two storey villa on This was an extension of the language Belongil side, nestled in bush- of the internet — which provided a method COURTROOMS AND JURY ROOMS land. Sleeps six. Spa, study and of defining the structure and content of Following on the interest generated by PC access. electronic documents. In litigation, infor- their very successful seminar at the “Surfside” — ground floor unit in mation from documents is used over and University of Canberra in 2002, there Lawson Street directly opposite over again, and legal XML allowed this occurred widespread appreciation of the Main Beach. Sleeps five. information to be reviewed and analysed skills and learning of Professor Eugene by separating structure and content from Clark and his Courtroom 21 (Australia) Both units an easy walk to town. presentation. Accordingly, the same XML team. Australian judges were not sur- source document could be written once prised to learn that the design and fur- Check website: and displayed in a variety of ways on a nishing of many of this country’s courts www.edsilk.com.au ID 13.1 and computer monitor. and jury rooms — particularly the older 32 or phone (02) 6685 7000. This court of the year 2025 uses fourth ones — were sadly lacking in provision for

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Chief Magistrate Gray and Joan McLennan, widow of David, with the plaque and photograph of David.

AVID McLennan signed the Roll of Counsel on 25 June 1964. He Ddiscovered computers while most of us were dictating to secretaries using manual typewriters. He was way ahead of his time. When he was appointed to the Plaque inscription. Magistrates’ Court, he took his expertise with him and played a major role in the establishment of the computerisation of emony in which the Magistrates’ Library the Magistrates’ Court and in the develop- in the Melbourne Magistrates’ Court was ment of its library. dedicated to his memory. David died on 23 June 2001. On 14 The ceremony naming the David December 2001 the contribution of this McLennan library was attended by quiet, scholarly and much loved man made David’s family (shown in photo), by all to the operation of the Magistrates’ Court David McLennan’s family: wife Joan available Magistrates at the Melbourne (and particularly to the content of its with children Sarah, Andrew and Alex, Magistrates’ Court and by members of the library) and to the administration of jus- seated is his mother Ellen. His other court staff. tice in this state, was recognised at a cer- daughter Isobel was absent.

52 53 News and Views News and Views/A Bit About Words Fading Distinctions

HE English language has developed incredulous. Incredible is the condition between surprise and astonish. Surprise haphazardly. Drawing on diverse of not being believable. Incredulous is the comes from sur + prehendere: literally Tsources, it has spawned as rich a state of mind that does not believe some- over + take hold of. Originally, to over- vocabulary as any known language. The thing. Mr Howard has recently asserted power the mind or will; then to attack chaos Johnson found, and tried to tidy up, that he was unaware that reports of asy- suddenly, or to capture by force; then to includes many words which have sprung lum seekers throwing their children over- come on unexpectedly, to take unawares; from the same source whose meanings board at sea were untrue. That assertion then to affect with the emotion of being are related but different. For example, is incredible; many people are incredulous taken unawares, which approximates its frail and fragile both come from the that he persists with it. What is incredible current principal meaning. Astonish is Latin fragilis. They are not synonyms for often induces incredulity; the fact that the cognate with stun, but its intensity has each other, even though they share the two things often go hand in hand probably gradually diminished: originally it meant same central idea. “A frail old man bought explains the confusion. Facts are incred- to stun, paralyse or deaden; then to stun a fragile old vase” sounds right. Reverse ible (not believable); people are incredu- mentally, then to dismay, then to shock. the adjectives and the resulting sentence lous (not believing). The Coverdale Bible (1535) has “Be would sound distinctly odd. Similarly, we The battle to save reticent from a take- astonished (o ye heauens), be afrayde, have many words which sound similar but over by reluctant is probably lost. A per- and abashed at soch a thinge” (Jeremiah come from different roots and have differ- son who is reluctant is unwilling, struggles II:12); the King James version (1611) has ent, albeit similar, meanings. against a thing, resists it. By contrast, a “The people were astonished at his doc- Generally, the distinctions between peson who is reticent is reserved, silent, trine” (Matthew vii:28). The distinction these approximate twins are useful. disinclined to speak. Reluctant comes between surprise and astonish, at least English has thousands of them; they from re + luctare: to struggle. Reticent as lexicographers would have it, is best account in part for its richness and sub- comes from re + tacere: to be silent. captured in a story (no doubt apocryphal) tlety. Unfortunately, some of these useful Another two words often confused for about the great lexicographer and peda- distinctions are being rubbed away by each other are interpolate and interrupt. gogue Noah Webster. It is said that his careless handling. As the process contin- Interrupt comes from the Latin rumpere, wife found him embracing their maid. She ues, the language loses a little of its power to break. With the prefix it has the obvi- said “Noah, I am surprised”. He replied: and subtlety. ous meaning break in upon, or break off. “No. You are astonished, it is we who are Precious (to lawyers at least) is the dis- Interpolate is more subtle, and extends surprised”. tinction between disinterested and unin- beyond mere interruption. Originally, it Astonish may have lost some of its orig- terested. A person is uninterested in a meant to polish up, from polire (to polish); inal force, but it is still a strong word. The thing if it holds no interest for them; if from which we also get polite and policy. language needs a word for a similar emo- they prefer to give their attention to other It soon came to signify altering a book by tion at a lower pitch. Surprise does the things. So, I am interested in music and adding material, especially by adding spu- job. The distinction remains only in the sculpture, but I am uninterested in golf rious material. So it was from the mid- story about Webster, and he died in 1843. and stamp-collecting. To be disinterested, 17th century. to the late 19th century. In 1844 Macaulay had written “Weymouth however, is to have no stake in the subject But from the late 18th century mathe- had a natural eloquence, which sometimes matter. Judges must be disinterested in maticians had been using it in a more astonished those who knew how little he cases they decide, but they should be inter- neutral sense. Mathmeticians use it to sig- owed to study”. This deftly ambiguous ested in them. Increasingly, the two words nify the completion of a series of num- insult suggests that the distinction had all are used interchangeably. In its report bers by the introduction of numbers in the but disappeared by the time Webster had into the the Cash for Comment affair, unfilled intermediate positions by calcula- died. the Australian Broadcasting Authority dis- tion from those numbers already known. Confusion between dysfunctional and cussed the idea that listeners would natu- The gravitational pull of the scientific use non-functional probably comes from the rally assume that radio commentators had slowly influenced the lay use, so in ordi- attraction (irresistable to some writers) no financial stake in the matters on which nary speech it came to mean any words, of new and important-sounding words. they shared their views. They set out in comment or observation inserted in the Dysfunctional crawled out of the swamp full the dictionary definition of disinter- middle of another. It has lost its pejorative of social science jargon. Its apparent ested — presumably because they thought connotation, although it may still involve meaning seemed obvious enough and it the word would not be readily understood. an interruption which is ill-mannered by quickly became a desirable substitute for An important distinction is being lost. reason of bad timing. the dowdy, familiar non-functional. Non- Another casualty of the process is Another fading distinction — a battle functional simply means not able to func- the distinction between incredible and almost certainly lost — is the distinction tion; broken; unserviceable. Dysfunctional

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means functioning badly, functioning wish to place a thing more emphatically at immediately above the centre of a seismic in a manner abnormal, or not intended. the centre of events, they often refer to it event. By definition, the epicentre is above The distinction is real and useful and as being “at the epicentre”. This is plainly the true centre: often many miles above it. should be preserved, if only to spare us wrong, and means quite the opposite of The Greek prefix epi- means upon, and a replacement neologism from the social what is intended. The epicentre is not is used in many technical words which, scientists. some mysteriously intensified form of because of their obscurity, have avoided The same tendency of some writers centrality. On the contrary, the epicentre the careless treatment received by epi- to prefer the important-sounding word is never at the centre of a thing. The word centre. where it is available probably explains the comes from seismology, where it is used Julian Burnside recent vogue of epicentre. When writers to identify the point on the earth’s surface

Isaacs Chambers EMBERS of the Bar will be aware and the position has been reached where levels 2, 3 and 4 in Owen Dixon Mthat the lease for the space cur- BCL has agreed to take the ground floor, Chambers West, which will become rently occupied by Isaacs Chambers in and levels 8 and 9 for a further two years available in June 2002. This priority will 555 Lonsdale Street was not formally commencing 1 July 2002 and with fur- only apply to tenants who elect to move renewed in early 2002 by BCL. Members ther options at the end of that period. from Isaacs to Owen Dixon Chambers of the Bar, and tenants of Isaacs Level 11 will not be leased by BCL after West by 30 June 2002. Chambers in particular, were informed 30 June 2002. Individual and group applications will of this decision prior to Easter 2002. BCL confirms that existing tenants be accepted from existing tenants of Further negotiations have been of Isaacs Chambers will have priority Isaacs Chambers interested in moving to undertaken by BCL with the landlord, in taking up the offer of chambers on Owen Dixon Chambers West.

Owen Dixon Chambers East Refurbishment ORK is continuing on finalising the sary prior to 30 June 2002, although it is BCL is committed to keeping mem- Wplans and specifications to enable hoped that refurbishment of the lifts will bers of the Bar and other interested par- the tender process to proceed in rela- commence by that date. ties fully appraised of all developments tion to the refurbishment of Owen Dixon It is still envisaged that work will com- in relation to the refurbishment of Owen Chambers East. mence on the substantial renovation of Dixon Chambers East. It is clear that no substantial work Owen Dixon Chambers East during the or relocation of tenants will be neces- second half of 2002.

54 55 News and Views

Mark Herron, Attorney-General Rob Hulls, Chief Justice Phillips and Margaret Camilleri. Voluntas Launches ‘Network of Commitment’

On 7 February 2002 the Victoria Law Foundation released a mark of the importance with which Victo- its report, “Future of Pro Bono in Victoria”, the result of a ria’s legal profession views the provision of series of roundtable discussions staged mid last year. pro bono services to the public. It is also an indication that, as a broad church, Victoria’s legal profession is open to working together HE launch was held at Victoria on an ongoing basis to improve the delivery Legal Aid where the Report was of those services. Tofficially launched by the Attorney- General the Honourable Rob Hulls MP BACKGROUND at Victoria Legal Aid, with additional Voluntas (Victorian Pro Bono Secretariat) speeches given by Chief Justice Phillips is a project of the Victoria Law Foundation AC, President of the Foundation, and its now entering its fifth year. In May and Executive Director, Mark Herron. The June of 2001 Voluntas held a series of occasion attracted a large crowd including three roundtable discussions focusing on distinguished members of the State and pro bono legal services in Victoria. Forty federal judiciary, both arms of the prac- representatives from the legal and com- tising profession and a goodly number of munity sectors were brought together people from beyond the legal sector. Federal Magistrate Maurice Phipps, to discuss critical issues concerning Commenting on the size and diversity Justice Byrne and Carmen Randazzo pro bono and to identify strategies for of the gathering the Attorney-General from Victoria Legal Aid. its future development. Participants said: included representatives from the courts, as representatives of the community sector, Victorian Bar, Victoria Legal Aid, the Law It’s fantastic to see such a significant turn- the government sector, the private profes- Institute’s Legal Assistance Scheme and out for today’s launch. Welcome to you all sion and the judiciary. Your presence here is Law Aid, Public Interest Law Clearing

54 55 News and Views

House (PILCH), La Trobe and Monash bono legal services come from a variety of clear that there were several salient issues universities, community legal centres, and organisations, some providing legal serv- or themes identified by participants and other community organisations including ices and some not. these were: Court Network. The proliferation of pro bono services 1. Pro bono is not a substitute for legal As well as bringing people together, the and diversity in the types of assistance aid. Government responsibility to roundtable series was intended to search available are beyond the reach of many adequately fund legal aid services is for suitable strategic responses to the who work within the legal sector; to the not diminished by the pro bono activ- problems the participants would identify community sector it is confused and con- ity of lawyers, nor do these pro bono and thereby help shape future directions fusing. activities have the capacity to meet the for pro bono in Victoria. In turn this would shortfall in legal aid funding. be used to define and align the forward Working Together — Building a 2. A fundamental principle underlying agenda for Voluntas. Framework for Pro Bono both pro bono and legal aid work is that The third roundtable took up these issues, citizens should have access to justice. TOPICS DISCUSSED focusing where collaboration in the sector 3. Client needs are not always matched The Relationship between Legal Aid, has worked and where there seems to be by the services available. Pro Bono and Legal Services confusion, competition and conflict. 4. Both clients and pro bono providers The purpose of the first roundtable was There is a broad network of people and would benefit from an improved level to examine how changes in legal aid have organisations performing pro bono work of co-ordination and organisation, pro- affected the provision of pro bono services in Victoria, and in the legal profession vided this can be done without undue in Victoria and the broader relationship more generally there is a lot of energy, formalisation or regulation. Any organi- between these two spheres of activity. goodwill and enthusiasm for pro bono. sation of pro bono needs to recognise Papers included an historical perspec- The vitality of pro bono in Victoria is that it is a voluntary activity, involving tive on legal aid funding and the relation- exemplified by the participation in clear- choice, discretion and flexibility. ship between legal aid and pro bono, as ing houses such as PILCH, the Bar Legal 5. Pro bono clients are entitled to high well as current issues for legal aid. Other Assistance Scheme, the Law Institute quality services. papers presented the views of community Legal Assistance Scheme and the myriad 6. Pro bono is a worthwhile and impor- legal centres, barristers, and solicitors in community-based pro bono services plus tant activity that benefits the lawyers both small and large firms. Discussion the co-ordinating and policy centre in involved as well as the clients. It needs centred on how the rise of pro bono activ- Voluntas. to be promoted more widely in the pro- ity is linked to the decline in legal aid As ever though, good intentions are fession through university law schools and what response the profession should not sufficient. Although there is some and by the involvement of senior prac- make to that decline. level of consultation and collaboration titioners. Participants felt strongly that legal there are also many disparate activities aid and pro bono must be recognised as being undertaken without much knowl- Action Plan separate activities. At the same time they edge of or connection with what is being Voluntas has developed an action plan acknowledged the continuing uncertainty done elsewhere and often nearby. There that identifies which issues it can actively as to where legal aid ends and pro bono is uncertainty about the capacity of differ- seek to address and outlines a commu- begins. ent pro bono providers and this adversely nication plan that would encourage and affects the pro bono providers, community promote further sectoral collaboration. In Access to Pro Bono Services and referral agencies, and the public. In all, twenty-five actions have been identi- The second roundtable looked at how addition, in a climate of shrinking legal aid fied and these have been categorised as clients gain access to pro bono services and funding cutbacks, there is potential follows: and how this could be improved from the for conflict, competition and “territorial” • coordination/access client perspective. With over 50 organi- behaviour among pro bono providers. • policy/research sations offering some level of pro bono As might be expected, many different • promotion assistance, all with their own eligibility issues were raised during each of the • resource development criteria, the sector is characterised by a roundtables. Working groups will be formed to deal profusion of entry points. Referrals to pro On further analysis, however, it became with each of these areas. Communication Plan Through Voluntas the Foundation is com- mitted to a process that both encourages broader participation and draws on exper- tise from members of the legal and com- munity sectors in planning and decision making about pro bono. The consultation plan is aimed at facilitating more effective communication on pro bono, at a number of levels, including within the legal sector, and between legal and community organi- sations, the National Pro Bono Resource Centre and the State Government. Justice Teague and Judge Lewitan. John Corcoran and Patrick Tehan QC. Continued on page 58

56 57 News and Views Criminal Bar Association News November 2001 Dinner

he Criminal Bar Association Annual Dinner was held on the 29 TNovember 2001 at Fortuna Village Restaurant, with 164 attending. As is invariably the way with CBA dinners, a late rush on tickets filled the restaurant to overflowing, making the night a resound- ing success. Thanks go to Nicola Gobbo for her organisational efforts, Colin Lovitt QC for his inimitable hosting, and His Honour Judge John Smallwood, for enter- taining the crowd as guest speaker. A selection of photographs from the evening is included below. SUBMISSIONS The Association has been active in making the following submissions; • The Association provided a submission on proposed State Government legisla- tion as to the use of alcohol ignition locks in drink-drive cases. Legislation is currently before parliament. • Phillip Priest QC prepared a submis- Judge Smallwood addresses the throng. sion on the issues surrounding the on-line dissemination of criminal his- accord with international covenants. tory. The issue came to a head last • Nicola Gobbo and Remy van de Weil year when a murder trial before then QC prepared the Association’s sub- Justice Hampel was adjourned due to mission on the Proceeds of Crime the potential access the jury had to the Bill 2001 (Cth). The Bill in its current accused’s prior convictions, which had form unfortunately does not take into been posted on the internet. account the concerns raised by the • Peaceful Assemblies Bill: Roy Punshon Association, but members will be kept S.C. and Richard Bourke met with informed as to its progress. representatives from Justice to dis- • Jeanette Morrish QC and Nicola Gobbo cuss Association concerns about the are in the process of preparing a sub- Bill. This was followed by a Round mission to the Victorian Law Reform Table discussion, held on 13 December Commission on its Sexual Offences Dyson Hore-Lacey S.C. and David 2001 chaired by the Minister for Police Discussion paper. To date, no legis- Parsons S.C.. and Emergency Services, Mr Andre lation evolving from the discussion Haermeyer, and attended by a large paper is before Parliament. with the Crimes Act provisions. Lesley group of interested parties including • Stephen Sherriffs appeared on Taylor has provided further written the Chief Commisioner of Police, the behalf of the Association before the submissions to the Committee. Trades Hall Council, Legal Aid, the Parliamentary Committee inquiring • Michelle Hodgson prepared the Law Institute and VCCL. The CBA was into the powers of entry, search, sei- Association submission to the Draft again represented by Roy and Richard. zure and questioning by authorised Recommendation Paper on the current The legislation is currently under fur- officers. The Association’s position Bail Act position for accused who fail to ther consideration and will be reviewed has emphasised the need for trans- appear in court in response to bail. The later in the year. The Association has parency, common rights and duties Association supports the amendment been clear that the definition of the including the need for seized materials of legislation to remove the “reverse right to peaceful assembly should to be taken before court in accordance onus” situation that currently means

56 57 News and Views

practice direction to deal with the situa- tion in the interim. A link to the practice note is available through the Association website. SEMINARS The next Association seminar will be on the Criminal Trials Act on Tuesday 12 March 2002. It is hoped that ongoing issues surrounding the operation of the Act can be aired by the membership. Her Worship Jelena Popovic will Roy Punshon S.C., Damian Sheales Judge Betty King, Nicola Gobbo, Con present a seminar on 16 April 2002. Topics and Michael Rozenes QC. Kilias and Patrick Tehan QC. for discussion to include the access to and range of parallel services, pre-sentence detention calculations, prior convictions, the CREDIT and Diversion programs. WEBSITE The Association website is located at www.crimbarvic.org.au . Links to all Court lists, major legal sites and associations are provided, along with up to date news and events from the Criminal Bar Association. Please feel free to provide feedback as to how the site can be improved.

Colin Lovitt QC quizzically orates. Richard Bourke and Michelle Williams.

be held to discuss the creation of an International Criminal Bar. Voluntas Launches MAGISTRATES’ COURT ‘Network of The Association has a number of issues to deal with as to current practices in this Commitment’ jurisdiction, and to this end Association From page 56 Chair Roy Punshon S.C. has met with Her Worship Lisa Hannan, now the Magistrate Policy Council in charge of the Criminal list, to discuss The Action Plan also contemplates the the concerns raised by members. These establishment of a policy council to dis- John Carmody and Michael Bourke. include the current listing practices for cuss broader policy issues and develop criminal fixtures. statements that would assist in directing that an accused who fails to appear in The move toward the electronic service future pro bono development within the answer to bail is held in custody unless of briefs is also a subject for discussion. State. Membership of the Council would he or she can establish that the non- The practice is already being adopted by be drawn from key community and legal attendance at court was through no the homicide squad and will undoubtedly sector organisations. fault or negligence on their part. This expand. The court and practitioners need The Foundation encourages anyone imposes a higher standard of proof for to establish appropriate guidelines to deal interested in pro bono services and activi- bail than exists for the proving of the with this. ties to obtain a copy of the report. Copies charge per se, and the Association sup- of “Network of Commitment Future of Pro ports the abolition of that provision. APPEAL COSTS ACT CERTIFICATES Bono in Victoria — report from the round The Association has liaised closely with table series” are available in hard copy CRIMINAL LAW NATIONAL LIAISON the courts and the Justice Department by phoning Victoria Law Foundation on COUNCIL OF AUSTRALIA since the Court of Appeal decision in R 9602 2877 or may be downloaded from Michael Rozenes QC will replace Brett v Hall changed the prerequisites for the the Victoria Law Foundation website at Walker S.C. and become co-chair of the application for a certificate pursuant to www.victorialaw.org.au. council with Tim Game S.C. of the Sydney the act. Whilst ultimately it is expected Bar. Michael will also be the Association’s that the issue can be resolved through Margaret Camilleri delegate to the International Criminal a legislative amendment in the Autumn Project Manager Court conference. The conference will session, the County Court has issued a Voluntas — Pro Bono Secretariat

58 59 News and Views The Remembrance of Defamations Past A short essay by Barry Dickins

T was the happy and unhappy year of Our Lord 1986 I fi rst experienced Ithe sting and satire of defamation as I turned up at my old ruin in Arthurton Road in Northcote, and there awaiting my fear was a large and rather beautiful writ in our rusty emphysemic tin letterbox. I thought they were delivered by hand? In it I read of an impending physical appearance at the Magistrates Court by me due to a comment attributed to myself upon the Doug Aiton Program on ABC Radio that apparently defamed the writer and prize winner Gerald Murnane. I gasped. A few months prior to this mysterious missive lobbed in my care I was the guest of Doug Aiton on his highly-rating (in Northcote) drive-time program, and he had attacked me on the subject of bias in funding towards Australian writers. All I wanted to do was speak of my new comedy. It came as a considerable surprise to read and to learn that a smart-arsed remark on a radio show could meta- morphose into a legal appearance in the courts. But there it was, or were, because two writs there certainly were in exist- ence. I had said under pressure that there was no cronyism in Literature Board awards and it was not the case that the same famous writers copped big prizes each time they were handed out. Doug Aiton said, “But you look at Gerald Murnane. He has won two Literature Board Not long after this fevered reading at me to do this call because the whole thing Senior Fellowships this year. Wouldn’t you my front gate I received an emotional tel- seemed risingly ridiculous, as all tragedy say, as a critic of our arts scene, as one ephone call from Malcolm Long, who was is. who has been neglected yet again that then pretty much head of the ABC. He He said he had been told not to converse there is in fact genuine bias in these sorts told me to speak personally to Murnane, with me over the blower and would see of prizes, and it’s an old mates’ network?” who lives in Coburg, you’re from Reservoir me in court. The next thing I knew I had I declined to answer. I said, “Listen. If anyway, he said, and try to stave off all this to front the ABC’s depressed and I feel like persecution then I go and see defamatory crisis because it will just about therefore depressing legal eagle, who the Police.” He said that was just a smart bankrupt Dear Old Aunty. accused me of being a trouble-making thing to say. I then said it’s a case of who I did. I rang Gerald Murnane from a egomaniac. you sleep with. That was judged defam- public telephone booth in Brighton Road, Curiously this strange man showed atory for some mysterious reason all its where I was drinking with an intellectual me a clutch of newspaper entertainment own. Our legal defence was just. But the out of work Garbo whose shout it was. I black and white ten by eights of me con- whole thing was tragic. jolly well had to get the sweetness out of versing with a greyhound or an elephant

58 59 or Bert Newton and asked me why I did was successfully sued over a remark filed Was I supposed not to joke in print ever idiotic photos for the enlightenment of by restaurant critic Leo Schofield that a again? The Melbourne Times’ owner Glen our public. I said I was a fool. certain lobster had last been seen haring Rohan said it was a victory for their paper; “Upon that pronouncement there can down Darlinghurst Road, in its consider- but I felt terrible and odd. I thought we be no doubt,” said he. He then asked me able haste, to elude custom at the Blue could take a joke in Australia? why I posed for the media in all kinds of Angel Café. I still joke in life and print and on the foolish ways. Again I said I was a public The court case went on for two whole stage. I haven’t lost a drop of confidence clown; not a bad job the way the world is. days in the mint-new Magistrates’ Court and sometimes I wonder why it is me who After being roundly insulted I left with- in Lonsdale Street, and the whole thing gets punished, when all around I see just out so much as a stone-cold Bonox. proved exhausting for the owners of how cruel — without being satiric — a lot The magistrate found for Murnane and The Melbourne Times, who speedily of writing is in print and in the media. a small fortune went Murnane and his rep- discovered a pay-out of $300,000 or more I go to the Press Council over com- resentative’s way. was likely in the event of me getting plaints to do with my published obser- The defence of jest wasn’t worth a done. vations as others go buying socks and cracker. To make matters worse the brand-new sandals. Not meaning what one says is diaboli- fighting forepaws of the roo on the Everything has sort of cooled down cal in the media. Meaning it means bug- Commonwealth Crest above the magis- somewhat today, and I suppose it could be ger-all, it seems. trate — they collapsed immediately we rather a while until I am in court again, In 1990 I turned up at court, this time were told to “All rise”. It seemed a bad although I have to say to you I miss it. to learn why it was that I likened in print a omen. I have always liked telling the truth and Brunswick Street Nightclub proprietor to Frank Thring, then still animate, sent court seems to me the ideal venue in Frank Thring’s dog. by cab a photo of his cat, saying in the which to continue this ancient but ignored The Troubador Café bunged on an atro- note he didn’t have a dog. The cat’s like- practice. cious evening’s entertainment and in my ness was duly tendered in the most grim- When people scream at me in the weekly column for The Melbourne Times ness outside the crypt for all satirists in street these days — “I’ll see you in court, I said many silly things, not the least of Melbourne. Dickins!” which was the above idiotic remark. In the event the rival legal team settled You know what I reply, do you? I didn’t mean what I said. Next stop: and Kevin Childs wrote satirically of the I always say I look forward to it, and I court on another defamation charge that case in The Age and widely mocked it in do because honesty isn’t worth a zac out- copycatted the infamous one in Sydney his spot with Ramona Koval on the ABC. side it. where The Sydney Morning Herald The settlement was over $20,000.

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60 61 Sport/Yachting

Ian Crisp is presented with the Neil McPhee Perpetual Trophy by Peter Rattray, Michael Laurence (Suncorp Metway) and James Mighell. Squadron Sailing Day

HE annual Wigs & Gowns Squadron only be described as an eclectic mix of but that WAGS had not seen before; Peter Sailing Day was held on the waters sailing craft. Clarke arrived in his 42ft Huon Pine Motor Tof Hobson’s Bay on 20 December, The eccentricities of sailors at the Sailor Renaissance; lan Crisp sailed an 2001 in perfect conditions. About a dozen Victorian Bar was highlighted by the follow- International Etchells Class; Ross Macaw yachts participated in the short race ing. Peter Crofts arrived in his Herreshoff sailed his motor sailor Marie Louise; sponsored for the first time by Suncorp 12 launched on the day; John Digby, Peter James Mighell sailed the historic 26ft Metway and conducted by the Royal Yacht Golombek and others arrived in a 45ft Couta Boat Pearl; Martin Grinberg skip- Club of Victoria. The handicap committee chartered Benetaeu providing a standard pered an Endeavour and Garry Moore did the best they could with what could of luxury that they were accustomed to sailed an Elliott 7.5.

Albinito motoring into dock. Barbara Peter Golombek, Josh Wilson, David Marie Louise crew members Ann Walsh (skipper), Martin Grinberg, Ron McAndrew, John Digby, Belinda DePettri (RYCV photographer), and Gipp, Liz Rhodes, Deborah Morris and Martin, Natasha Marginis, Mark Janine Wylde. Linda Dillon. Laurence and Anthony Schlicht.

60 61 Octavia tying up. Peter Crofts, Denis Meehan and Cary Hipkins. (Peter and Cary Pearle, a Couta boat with crew. built the boat). James Mighell, Judge Crossley, Mark Laurence (Suncorp Metway), Ian McDonald, Peter Rattray, Dennis Horne, Alan Middleton and Dick Travers.

Peter Rattray and Peter Crofts. Renaissance crew walking along jetty. Peter Clarke, Richard Allen and Tim Hunt.

Ian Crisp sailed a well-judged race pick- Trophy. A barbecue was enjoyed by about sored the day and look forward to their ing up the shifts in the final 100 metres 70 skippers and crew, all of whom man- continued support in the future. to come out the eventual winner of the aged to make it safely back to their respec- Neil McPhee Perpetual Trophy from James tive clubs, but some only just! James Mighell Mighell. Peter Crofts won the Thorsen Thanks to Suncorp Metway who spon-

62 63 Sport/Cricket Hat Trick of Wins for Bar Cricketers

HE Bar’s 1st XI cricketers, adorned by their sponsor’s “neo-baggy Tgreen” caps, secured their third win in a row by beating the Law Institute by sixteen runs in their annual match for possession of The Sir Trophy. The game was played in perfect cricket weather on 17 December 2001 at the Junction Oval. Man of the match was Matthew Parnell who reprised his best on ground per- formance for the Bar against Mallesons Stephen Jacques last March. The team was Chris Connor, Justin Castelan, Mordy Bromberg, Mark Green- shields, John Gordon, Chris Maxwell, David Neal, Matthew Parnell, Justin Serong, Suresh Senathirajh, Craig Stevens and Lachlan Wraith. Having won the toss, the Bar batted but quickly lost two wickets before attrac- tive batting from Justin Castelan (24) and Matthew Parnell (36) took the score into the 70s. More wickets then fell until Stevens, Connor and Wraith hit out to help the Bar reach 8 for 130 at the compulsory closure. In the field the Bar performed -heroi cally with Justin Serong’s pace putting pressure on the openers, whilst his athletic fielding was responsible for two early run outs. At the other end Lachlan Wraith bowled an amazing spell with only three runs taken from his first six overs. The tightness of the attack was continued by the change of bowlers, and after that Chris Maxwell impressed with his coolness when called on to bowl at a crucial stage. Mordy Bromberg continued From largest to smallest: The Sir Henry Winneke Trophy, The Phil Opas Trophy to catch and stump every opportunity and The Singapore Cricket Club shield given to him behind the wicket. Craig Stevens (2 for 21), bowling in tandem margin on this occasion was the largest thanked for arranging the team’s sponsor- with Matthew Parnell, then restricted of the three wins. During the after-match ship by Suncorp Metway. the solicitors to 6 for 114. The winning celebrations Mark Laurence was gratefully Combined Team Beats Singapore Cricket Club

N 15 January 2002, a combined Bar Oval. Scores: Combined Side 6 for 139 Gerard Doulton 2 stumpings). Man of the Oand Law Institute team defeated (Geoff Chancellor 42 n.o., Tony Klotz match: Tony Klotz. the touring Singapore Cricket Club in 38) defeated Singapore CC 103 (Justin a match played at the Brighton Beach Hannebery 3 for 20, Tony Klotz 3 for 27,

62 63 Sport/Hockey An Excellent Year

HIS year’s Bar News article is a pos- itive pleasure to write. Instead of Tfinding new phraseology to describe defeat, my only difficulty this year is to express myself in terms which are appro- priately enthusiastic about our excellent results, and combining these with appro- priate modesty so as not to inflame our colleagues north of the Murray. NEW SOUTH WALES BAR: 2: VICTORIAN BAR: 2 Following our 6–2 defeat of the New South Wales Bar team last year in Victoria (cele- brated as I had thought with restraint, and an affection for our New South Wales col- leagues, in the pages of Bar News), we returned the fixture by going to Sydney this year. On Saturday 13 October 2001 the doughty 12, as it turned out to be, of the Victorian Bar team assembled at Before: the doughty 11 — Robinson was late! the Olympics Sports Centre in Homebush to exercise our modest talents on the ground where the last Olympic final was played. We discovered opponents who, on a typically sultry Sydney day, had the advan- tage of 15 or 16 players, thus enabling numerous interchanges. The game was played to a surprisingly high standard given the age and fitness of the competi- tors. We managed to give away a soft short corner goal early on, but rallied and equal- ised when Michael Tinney blasted through the goalkeeper (at this stage, Ireland, QC). We pressed on and, considerably aided by our new star recruit, Richard Clancy, who has only recently defected from the solici- After: everyone happy (the bar was open). tors and come to the Bar, we were able to score another goal through Robinson who tapped in opportunistically following assisted, and ourselves disadvantaged, by South Wales team scored another scrappy another goal mouth scramble. We finished the fact that Michael Tinney severely tore goal following poor defending off a short the half strongly and were 2–1 up at the a leg muscle in the early minutes of the corner. break. second half, thus meaning that we had Throughout the game Sharpley played The New South Wales team brought on no interchanges and lost our most potent extremely well in goal, and it is fair to Katzmann S.C., to replace Ireland, and it striker. say that everybody who was on the field was her proud boast after the game that Notwithstanding this, we held out well contributed effectively. We missed Meryl no goals were scored against her team and with Wood and Clancy controlling Sexton who was unable to come because while she was on the field. much of the midfield, and Luxton per- of illness at the last moment. Katzmann was quite correct of course, forming prodigies of running, we held on In what is clearly going to become and played very well, but was significantly till fairly close to the end when the New a tradition, the two sides repaired that

64 65 evening to the Little Snail Restaurant near MAJOR TRIUMPH — FIRST DEFEAT OF standard was superior or because their Sydney University at which an exception- LAW INSTITUTE TEAM SINCE 1996 expectations were low, they were kind ally convivial evening naturally followed. Buoyed by the return of Sexton, and enough to refrain from saying. The ].R. Katzmann’s speech (she is a member of the addition of Collinson and Niall, we Rupert Balfe Trophy was awarded, and the New South Wales Bar Council as well approached our game with the Law very properly, to Clancy who is a tremen- as being an extremely competent goal- Institute team with less foreboding than in dous acquisition for us, and if we can keeper) made it very plain that my thought previous years. ever get Tweedie back from the wilds of that the article in last year’s Bar News was On Thursday 25 October 2001 we for- South America we should have a team that restrained was wildly misconceived. My gathered at the State Hockey Centre in remains competitive for several years yet. remarks about the collective age, weight Royal Park and proceeded to achieve a Thereafter, the teams repaired, as tra- and speed of the New South Wales team victory as uncommon as it was satisfac- ditionally, to Naughtons and, as might be had plainly touched quite a number of tory. expected, the conversation largely turned exceptionally raw nerves. We were roundly With Michael Tinney still unfit, we upon the endeavours by the Bar team to (if affectionately) criticised for having a played his brother Andrew at centre for- remember the circumstances in which we ring-in (Ross Gordon, barristers’ clerk), ward (a task for which he was not slow to had last actually won the Scales of Justice no women in our team (Meryl Sexton volunteer) and with Clancy in even better Cup. Research showed this to have been in was not able to come and Riddell is on form than in the previous game, we domi- 1996, and the previous victory was some parental leave) and a reader (Clancy). I nated the early play. considerable number of years before that. refrained from pointing out in reply that We were able to score a first goal With at least one more recruit posited when they played last year the New South through Clancy who picked up a ball fol- for next year, the future for the Bar hockey Wales team had a ring-in (who umpired lowing a scramble and flicked it cleverly team in 2002 is at this stage looking this year’s game and robbed us of a goal into the net. This goal divided the teams at extremely rosy. It may yet be my pleasant at the last few minutes) and that they also half time. task to write an article in which refine- had another ring-in this year (a serving In the second half, with Wood and ment, restraint and gloating are nicely officer in the Australian Defence Force). Clancy again excellent, well assisted by matched in the event that we were to The New South Wales team nominated Robinson, Luxton, Andrew Tinney, actually win both our fixtures in the one Clancy and Dreyfus, deservedly, as our Collinson and an exceptionally mobile year. best players. Lynch, we actually managed to increase Those who played in Sydney were As noted in last year’s article, the New our lead. Robinson crossed to Clancy who Brear, Burchardt, Clancy, Dreyfus, Gordon, South Wales team were excellent oppo- scored with a rasping shot from the left Luxton, Lynch, Robinson, Sharpley, nents on the field and extremely good inside position. Andrew Tinney, Michael Tinney and company off it. The fixture will be repeated That goal gave us the security we Wood. again in Melbourne next year, and it is needed and, despite interchanging numer- All of those played again against the strongly hoped will subsist on an ongoing ous players, we were always in control. Law Institute team apart from Michael basis. It is only fair to say in conclusion The Law Institute team scored a late goal Tinney who was injured, but we were aug- that although each team (as is so com- and the score finished 2–1. mented by Sexton, Collinson and Niall, mon) thought that they had the better of The umpires who selected the awards whose presence on the back line was the play, my own view is that a draw was a commented upon the standard of the play keenly felt. very fair result. We look forward to seeing which was better than they had antic- them again. ipated. Whether this was because the Philip Burchardt

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64 65 Sport/Golf

Robert Miller and Brian Keon-Cohen QC with their golf trophies. Bench and Bar Winners at Kingston Heath

N 18 December 2001, at the County Court Judge Chester Keon-Cohen prize winners. In addition, the Bench Kingston Heath Golf Club, the and well known solicitor, Peter Druce, and Bar team’s bar bill for the entire day OBench and Bar team regained the who had been co-opted to the Bench and was paid for by Suncorp Metway. Mark Sir Edmund Herring Trophy. In perfect Bar Team with a score of +7. Laurence represented the sponsors at the weather conditions a small field convinc- The Bench and Bar Team was gener- Golf day and played with Gavan Rice. ingly defeated the Law Institute team. ously sponsored by Business Insurance The Bench and Bar team will endeavour Exceptional scoring was the order of the Group Australia Pty Ltd and Suncorp to retain the trophy for 2002 at Kingston day. The top score for the Bench and Bar Metway Limited. Each Bench and Bar Heath on 17 December 2002. team and indeed the top score for the day player received a Suncorp Metway Golf was attained by Robert Miller and Bryan Umbrella, Corporate Satchel bag and six Gavan Rice Keon-Cohen, with a score of +8. They premium golf balls. Further umbrellas, were closely followed by recently retired satchels and golf balls were awarded to

66 67 Lawyer’s Bookshelf

of rules, patterns of play and requires skills and appreciation of aspects of the Minister of the Crown: certain specific skills. It is not something game from the study and analysis of foot- Vernon Wilcox that can be learned or truly appreciated ball, so do mediators and negotiators who without actual play. Similarly, negotiation seek technical explanations of the process Published by V.F. and J.R. Wilcox has a number of rules, and specific styles and practice of mediation. This work can pp. 1–227 can be identified and classified, yet it is be usefully accessed by the “spectator”, Paperback, $25.00 not a subject that can be truly understood and of more significance it will enable the without actual participation. “players” in mediation and negotiation HIS privately published “personal Just as a coach contributes to a foot- who are interested in further developing Tstory of life, politics and people” con- ball player’s skills, a written text on media- and honing their skill to gain a significant tains cameos from history reaching back tion and by implication, negotiation, does insight into particular aspects of the to the days before World War II as seen have a useful part to play in improving the mediation and negotiation process. Good from the point of view of a former Attor- understanding and performance of nego- skills acquired through practice and study ney-General of the State of Victoria. tiators and mediators. enable the “players” in football and Vernon Wilcox held the Seat of Camber- Just as one cannot truly appreciate the negotiation to maximise their contribu- well for twenty years. He initiated the lightning quick reflexes involved in exe- tion to the game and outcome. Professor building of the underground rail loop and, cuting a perfect hand pass from under- Boulle is to be commended for his useful as Attorney-General, it was he who gave neath a pack, nor the vision that enables and practical work Mediation: Skills and his fiat to authorise D.O.G.S. to challenge some players to always find a team mate in Techniques. For “players” and “specta- state aid to non-govemment schools. a better position nor the debilitating effect tors” it provides insight in a most useful The dual role of the Attorney-General of the crunching tackle or goal scored and practical way. is illustrated by Vernon Wilcox giving his close to siren time in the game of football, fiat to enable a challenge to be mounted, neither should one overlook in the “game” P.W. Lithgow even though the Cabinet was t opposed to of negotiation the careful reframing of that challenge. issues by a mediator or the strategic inter- In these reminiscences, written with vention and response to a sudden change Moran v Moran a simplicity and economy of style which of tack in negotiation. What is the appro- by Murray Waldren make extremely easy reading, he gives the priate response to an apparently inflexi- reader an insight into pre-war Melbourne Harper Collins Publishers 2001 ble approach to mediation or, conversely, pp. i–xiv, 1–336. Paperback and into life as a Cabinet Minister under an unexpected concession during negotia- . tion? RVING Younger exhorted us on video at says in the foreword: For the “non-player” the book pro- Ithe Bar Readers Course that you could “This book is quietly revealing about Bolte vides the format, structure and insight not call yourself a trial attorney until you and his skill as a leader”. It is equally into aspects of mediation and negotiation. had done 25 trials and if you hadn’t done revealing of the operations of the Liberal Of more importance for the “player” the any trials you should read biographies of Party Cabinet during the years that Vernon book enables insight and appreciation to the famous trial attorneys. His particular Wilcox was a member of the Ministry. be gained of familiar tactics, techniques favourite, I recall, was Max D. Steuer. Although Sir Henry Bolte opposed the and approaches frequently encountered Kristina Moran, daughter-in-law of Doug appointment of Vernon Wilcox to the in real life situations. By appreciating and Moran one of Australia’s wealthiest men Cabinet, once he was a member of the understanding the tactics, explanation can sued Doug, Greta and Peter Moran for Cabinet Bolte supported him. be given to certain patterns of behaviour the tort of intentional infliction of emo- It is not a book to sit down and read and alternative and different strategies tional distress, alleging that their actions in one session. It is a book to dip into on can be implemented. For the “player” this had caused the suicide of their son and a sunny afternoon. It will make very good insight extends and reinvigorates alter- brother and her husband Brendan Moran. holiday reading. natives in the mediation and negotiation The trial before a jury in the Supreme Copies can be obtained from the Law process. Court of NSW in Sydney on 3 February Institute Bookshop. The chapters on “assisting the commu- 2000 and ultimately settled on day 37. Gerard Nash nication process”, “facilitating the negoti- This is not quite a biography of famous ations” and “encouraging settlement” are trial attorney, but the biography of a useful for all involved in negotiated bar- famous Sydney trial that settled, written Mediation: Skills and gaining (Chapters 6–8). Similarly the chap- by a journalist assigned to cover the trial. ters on “avoiding traps” (for mediators) It is a laboured love with some interesting Techniques and “special issues in mediation” provide insights, especially into the jury process, a useful overview and exploration of many and maddeningly brief treatment of what By Laurence Boulle of the familiar skills and techniques in must have been very interesting legal Butterworths 2001 mediation (Chapters 9 and 10). By iden- issues. For example, the author gives no pp. i–xiv, 1–295, tifying these issues, alternative strategies real analysis as to why the case may have Appendices 297–323, Index 325–331 are more readily identified and familiar settled despite Richard Ackland’s percep- EGOTIATION (of which mediation is tactics are better understood. tive assertions. (See “The letter which Nbut one form) is like Australian Rules Of great practical use are the appendi- demolished the Moran defence” Sydney Football. Both are activities for “players”. ces, which provide model documents, par- Morning Herald 31 March 2000.) Both happen in the present and evolve ticularly mediation agreements. Look out for tidbits of information during the “game”. Football has a number Just as the football player develops that I don’t recall from the Bar Readers

66 67 Course, for example, the use of the an extensive and detailed review of all paragraphs are well signposted with self- word “gallimaufry”, as in “nothing more native title decisions running from Mabo explanatory headings. The intellectual than a gallimaufry of tittletattle, an ill- v Queensland (No. 2) (1992) 175 CLR clarity that matches these valuable fea- assorted ragout of gossip and scandal” 1 through State and Federal decisions to tures is also supported by an index, which, (my dictionary defines it as a dish made the present date. on the whole, tends to be comprehensive. up by hashing up odds and ends of food; Most of the statutory references relate There has been some re-organisation of a ragout or a promiscuous assemblage of to New South Wales Acts, as would material within existing chapters. This persons) by defendants Senior Counsel be anticipated in such a text. Notwith- 5th edition updates judicial develop- before a jury to describe the plaintiffs standing, the book provides a valuable ments to 1 June 2001, with a substantial case, Junior Counsel ostentatiously exposition of the wide and varied area proportion of new references. A number using a stopwatch to time the answers of land law. The book is extremely well of existing entries have been rewritten to of a witness, with the Judge suggesting indexed and there is extensive footnoting reflect changing judicial responses, and the time taken could be read into the of authorities from all jurisdictions. the authors, in a spirit of true scholar- record, commencing cross-examination This is a wonderful omnibus text that ship, confirm or review the commentary of one of the principal defendants by takes into account not just those con- that appeared in the 4th edition. The asking her to identify her public relations veyancing and leasing issues but all rel- authors themselves refer to a number of consultant in the body of court, as well evant interests in land (including trusts significant changes in their preface to the as asking a witness which one of two and estates). It will be of great assistance 5th edition. statements she had previously made was to any practitioner involved in property First, the heading and the discussion false and the response Senior Counsel and associated areas. Given the depth of relating to judicial bodies modifying the gave to a witness who asked him a ques- coverage in respect of areas of general text of legislation has changed. The head- tion “(it’s) probably easier if I ask the application it is a useful acquisition for ing “[r]eading words into legislation”(para questions”. Victorian practitioners. 2.16) is now changed to “[i]mplying words Perhaps written for a wider audience in into legislation” (para 2.27), sounding a mind, it will probably fill many legal stock- S.R. Horgan cautionary note as to whether judicial ings this festive season and it is worth a modification of a statute is a legitimate read on the beach. interpretative tool. The text has been Statutory Interpretation expanded to explain how the process of implying words into a statute can be a in Australia (5th edn) legitimate use of the purposive approach Land Law (4th edn) by D.C. Pearce and R.S. Geddes (paras 2.28 –2.37). Second, the title of chapter 11, entitled by Peter Butt Butterworths “Mandatory and Directory Provisions” Law Book Co. (Thomson Legal & pp. i– xlv, 1–303, Index 305–314 in the 4th edition, has been changed to Regulatory Ltd) HE legitimacy of a legal argument will “Obligatory and Discretionary Provisions” pp. i–cxli, 1–895. Paperback Toften rest on the construction of a stat- in the 5th edition, and the chapter itself ETER Butt is a prolific author of books ute, and much of the practitioner’s work has been “recast” to take account of the Pconcerned mostly with New South will involve vexing questions of statutory decision of the High Court in Project Wales property and conveyancing law. interpretation. The practitioner will look Blue Sky Inc v Australian Broadcasting This volume is the fourth edition of his for a black letter analysis, which focuses Authority (1998) 194 CLR 355. An act general text on land law. on Australian law, and which offers very done in breach of a condition regulating The preface acknowledges the rele- clear and concise practical guidance on the exercise of a statutory power is not vance of the work particularly to New what our courts say and do when they necessarily invalid and of no effect. The South Wales but also notes that it will be interpret statutes. The 5th edition of Court’s view was that the description relevant in other jurisdictions given the Pearce and Geddes continues to merit of provisions as mandatory or directory similarity of property legislation through- the reputation of earlier editions as the provides no test for determining the out Australia. After considering several standard work on statutory interpretation consequences of non-compliance with chapters in the book I suggest that it has in Australia. As with the last edition, the the provisions. The Court acknowledged definite relevance in Victoria. In particu- authors alert the reader that it is not their that a provision that prescribes the satis- lar, there are some substantial chapters purpose to explore abstract theoretical faction of a condition as a prerequisite to dealing with general topics such as the perspectives and modern philosophical the availability of a power has traditionally nature and type of interests in land (ten- controversies that inform modern statu- been described as mandatory because ures, estates, uses, trusts and equitable tory interpretation jurisprudence (see noncompliance is attended with invalidity. interests, fee simple, fee tail, life estate, para 2.1). Perhaps there is a danger that a However, in the Court’s view, the conse- remainders and executory interests and work that largely expounds the grammati- quences of non-compliance depend on settlements). Other chapters deal in depth cal cannons and logical justifications our whether there was a legislative intention with easements, covenants, mortgages and judges have applied in the interpretation to invalidate any act that failed to comply priorities. There is an extensive and inter- of statutes does not automatically escape with the condition. The legislative inten- esting chapter dealing with Torrens Title the theatre of political controversy. This tion is ascertained by reference to the lan- which relates directly to the registration approach may of itself be a statement of guage, the subject matter and the objects system applicable in Victoria. adherence to a positivist theory of law. of the statute and the consequences A new chapter in this edition deals The work remains a relatively slim vol- for the parties of holding void every act extensively with native title. There is ume and is easy to use. Short, numbered done in breach of the condition. The

68 69 consequences of non-compliance need to a further chapter (curiously, situated to name but a few (see generally Chapter be determined before a provision can be later in the book) about the duties and 1). On the other hand, areas where there described as mandatory or directory. liabilities of directors and officers. There is development and change such as an Third, a new chapter dealing with is also a chapter about general meetings, implied duty of good faith, the current commonly used drafting conventions and one about shareholders’ remedies and and future status of Yerkey v Jones expressions has been added. The authors one about corporate finance. At the end, (1940) 63 CLR 649 in light of Garcia v have extracted the existing material on there is a chapter about the structure and Ltd (1998) drafting conventions from the Introduction regulation of security markets and one 194 CLR 395, estoppel and the quantifi- in the 4th edition and reproduced this containing case studies said to relate to cation of damages (including issues such material in a new Chapter 12. The chapter the “Evolution of Corporate Firms”. as Hungerfords damages and penalties has been enlarged by a discussion of some Notwithstanding that I found its organ- v genuine pre-estimates of damages) are drafting expressions used in legislation. isation a little hard to follow at times, the subject to clear, concise and useful analy- It has been said that practitioners often book seemed to me to contain most of the sis and commentary from both a practical have difficulty understanding the language materials which an undergraduate stu- and theoretical stand point. of legislation. While language can never dent of company law would require. Some There are also extremely useful chap- be an exact science there is a range of of the references appear a little out of ters dealing with construing the terms of conventions, words and phrases that par- date. While many of the cases and articles a contract which includes significant dis- liamentary drafters have used with some referred to are Australian or English “clas- cussion in relation to the construction of frequency and which judges have sub- sics”, a lot of water has flown under the both express terms (including exclusion sequently considered. Such conventions corporate bridge in the last 20 years or so. clauses) and the recognition of implied include the conjunctive “and” and the dis- One would have at least in some instances terms. junctive “or” and cautionary expressions preferred to see more emphasis on recent This work (unusually perhaps for a such as “notwithstanding” or “subject to”. cases and secondary materials. legal text) is written in an extremely The drafting expressions covered in the Similarly, a reconsideration of the clear and readable style. The text itself book include expressions indicating a con- structure of the book may be in order. is uncluttered and footnotes are relevant nection between one subject and another, For example, the treatment of directors and concise, confined to the bottom of the such as “in respect of” and “having regard and officers and their duties and liabilities page and do not contain the massed infor- to”. The chapter also provides further could be together, rather than separated mation and argument “overload” often helpful guidance in the meaning of tem- by a chapter about General Meetings. found in the footnotes. The user friendly poral expressions that indicate the time And the statutory regime for dealing with layout ensures the text is accessible, it is within which some action must be taken corporate insolvency, liquidation and their appropriately footnoted and broken down or when certain consequences arise. consequences is surely now of sufficient within each chapter under relevant head- The changes in the 5th edition justify complexity to need more thorough and ings. The text, with its theoretical under- the outlay of what is really a small invest- prominent treatment in a separate chap- pinnings may not be a concise resource, ment for a huge return. It is an excellent ter. After a year of Ansett, One-Tel and but if this be a shortcoming it is more than book that will enhance the library of every even Enron, these are areas of company made up for by the stimulating perspec- practitioner. It will provide the busy prac- law that touch many people’s lives. tives and the clear and comprehensive titioner with the basic and essential frame- prose. For any practitioner looking for work needed to engage in the mysteries Michael Gronow a substantial work providing insight and attending the interpretation of statutes. guidance in contract law, Principles of Contract Law lives up to its name and Joycey Tooher Principles of Contract provides an excellent resource. Companies and Law P.W. Lithgow by Peter Heffey, Jeannie Paterson Securities Law, Materials and Andrew Robertson Native Title (3rd edn) Published by Law Book Co. 2002 pp. i–xlv, 1–632, Index 633–655 Corporations a Legal by Redmond Law Book Company RINCIPLES of Contract Law has and Anthropological pp. xlvi–919 Pbeen written as a text for students Paperback studying contract law as part of a law Analysis degree. To that end it is not a general Mantziaris and Martin HIS is yet another student case book text on “business law” nor is it a “student Federation Press and National Native about company law. It is better written primer” providing a general coverage and T Title Tribunal, 2000 than most. It sites the subject well in its gloss on contract law. It is a substantial pp. xxxiv + 366 pages including index historical background in partnership and text dealing with the principles of con- Hardback then the early development of company tract law both from a theoretical (doctri- law. The book goes on to deal with the for- nal) and substantive view point. HIS is (so far as I know) the only com- mation of the company, and consequences Busy practitioners will no doubt be Tprehensive textbook dealing with, and of corporate personality. intrigued by the perspectives on the devoted to, native title corporations. Given It then has a chapter about directors theoretical underpinnings of contract their increasing numbers and importance, and managers and their roles. There is law — classical, economic and feminist, it is a gap which needed to be filled.

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As a mere lawyer, I was initially a little it is impossible properly to understand the the way in which principles will operate concerned about reviewing a book that corporations without also understanding which are close to speculative. They claimed to be an anthropological as well native title itself. nevertheless seem to me to have avoided as a legal analysis. Nevertheless, given A second part deals with the legal the temptation in a book of this nature to the nature of native title corporations and framework for native title management in become vague. Where there needs to be the context in which they operate, the Australia. It reviews the relevant legisla­ speculation, it appears to me to be intel­ anthropological aspect of the book could tion and the policy behind it as well as ligent speculation. well be a necessary one. As the High Court the characteristics and functions of native Overall, I found the book a useful and has pointed out in Fejo v NT (1998) 195 title corporations. It also contains chap­ indeed essential compilation of the legal CLR 96 at 128, native title results from ters on the trust or agency relationship and other materials one needs to have to "an intersection of traditional laws and in which native title corporations find hand in dealing with a native title corpora­ customs with the common law" (Neate J. themselves, and the operation and gov­ tion. As native title corporations become in his forward to the book). ernance of the corporations themselves. A a more important part of the native title The book is separated into three parts. third part deals with the "design process" process and of our legal system, I think The first concerns the character of the for native title institutions. As the book that the importance of such a book will native title. It includes chapters defining explains, that process is yet to be com­ increase, both as an adjunct to native title and explaining the concept of native pleted. law, and also to property and corpora­ title and how its content is determined Because the area is such a new one, tions law. The present work represents an and described. This means that the book many of the relevant principles are not yet excellent start in the area. covers more than simply native title fully developed. The authors have there­ corporations, which is appropriate, since fore often provided suggestions about Michael Gronow Conference Update

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