1030

What is Past, or Passing, or to Come ___ _ 10f What is Past, or Passing, or to Come ______

~ .... tcllbyby the HOI!HOIl Justice A.C .. C.M.G., President afthealthe CaUTIo!Caurlo! Appeal afat the 1993 BenchBelich & Bar ',lrlUlerat which he was the guest afhonour.o/honour. ¥. ,!i}fi "Once 0111011I of nature I shall never raketake ~ Mybodi1yjormfrom~f bodilyfarm/rom anyany. natural (hing,rh~lIg. Asprey kept, hanging on the wall of his chambers. behind the B ~f slIcllslIch ajormalarm as Grecian goldsmithsgoldsnllfhs make chair at his desk. the famous cartoon of FE Smith. Next to that dfhammered gold and gold enamelling cartoon was hanging a mirror. Looking in the mirror"it was To keep a drowsy Emperor awake; natural to see oneself as a reflection of the great English Or set upon a golden bOllghbough to sing counsel. "[ To lords and ladies of ByzantiumByz.antium The President of the Incorporated Law Institute (as it O/wlw{OfwiwI is past.past, or passing. or to come." was called) was NormanNonnan Cowper, later to be knighted. Reg WBW B Yeats Downing was the State Auomey~General. The most senior silks were HVH V Evatt himself, his brother CliveCJive and CAC A : ....UTI< PAST Hardwick. Amongst the senior juniors were those memorable figures Wilf Sheppard, Walter Gee, Bertie Wright and On an occasion such as this, and in this common room.room, Humphrey Henchman - the lastofwhom 1I saw, evergreen, in 'ldsinevitableitisineviw,blethatthat an affliction of nostalgia will take the mind this place but a month ago. back through lheme lost years. The spirits of these advocates are in this room with us It is thirty-five years since my first encounter with our tonight. They lived and laughed here,justas we do now. They ;~::~,~:::,{profession... ,~Itl:w:,a~;s:It was :i~n;in 195819.58 that I began m~my articles of cle~kship.clerkship. told the tales of their triumphs. They were ribbed - notnOl always ",.'TheQueen was in the sixthSixth yearofherrclgn.yearofherreign. Mr MenZIesMenzies was gently - about their embarrassing moments. They were mighty ": !he Prime Minister. Sir Arthur Fadden figures of my impressionable youth. I;::lhadjustretirectashis Deputy.. In the wake ".:-Ofthe successful struggIe against the anti­ At that time there were 430 members of 'c'communism referendum, the Democratic the Bar Association. Of them 51 enjoyed :/.Labor Party had been formed. It helped thc-commthe-comm ission as Her Majesty's Counsel. ~i;~~snatchvictoryfrom the AUStralian Labor TIle constitution and the law looked very ;~:tPartyinthe Federal Election in November sure and stable indeed. -~:;~~,;;~th;";~~~~I~, that year. SirGarfield Barwick was elected Member for Parramatta. As a tribute to Sixteen years passed before my first his unique distinction as a barrister.bamster, he judicial appointment was announced. This went straight to the office of Federal occurred in December 1974 when I was Attorney-General. appointed a Deputy President of the The High Court of Australian Conciliation and Arbitration comprised Chief Justice Dixon and Commission. Alas.Alas, I must acknowledge Justices McTiernan, Fullagar,Fullagar. Kitto.Kitto, that this is now nearly 20 years in the past. Taylor, Menzies and Windeyer. In the The Governor~GeneralshipGovernor-Generalship had just ' ...•Supreme "'"'''' Court, Sir Kenneth Street was changed from Sir to Sir nearing theend ofhis time as Chief Justice. John KelT.Kerr. The Governor of this State Within two years he would retire to be was Sir Vc. Gough replaced by the eXhaustedexhausted Evatt. Sir Whitlam was Prime Minister. Of the was the Senior Puisne High Court.Court, BarwickBanvick was at the height of Judge.JUdge. There were twenty-one judges of the Supreme Court his powers as Chief Justice. The latest member appointed to at that time. The youngest of them were the redoubtable the Court was . There was an empty seat to be Kenneth Manning. the bucolic "Barney" Collins, that fined.filled. Shortly.Shortly, it was to be occupied by Justice Jacobs, the gentleman Rex Chambers and the multi~talentedmulti-talented Rae Else·Else­ third President of the Court of Appeal. That court had been Mitchell. established with sharp recriminations and much bitterness in JudgeJUdge Lloyd was the ChairmanChainnan of the District Court 1965. Judges.JUdges. TheaTheo Conybeare presided in the Workers' In the Supreme Court, Sir John Kerr was soon to be Compensation Commission. succeeded by Sir - third Chief Justice of that Atthe head of the Bar Association was Bruce Macfarlan name. There were 37 judges. The latest appointments to the QC. His able lieutenant was QC. The leaders of Court were Ian Sheppard, Hal Wootten and that fine teacherof titeBarweretheBarwere towering figures of my youth - Kerrigan.Kerrigan, Meares many banisters.banisters, Harold Glass. and Asprey. AAF F Mason was a younger member of the Bar Jim Staunton, still in office. had just begun his long and COuncil and the newest recruit to it was DAD A Yeldham. distinguished leadership of the District Court.Coun. Chris We have it on Chief Justice Mason's authority that Ken Langsworth was Chainnan of the Compensation Commission. Of all the judges who were serving at that time.time, day by busy day, nine only remain in judicial office today, together SeeSec AAF F Mason. unpUblished address 10to the District Court with myself. They arcare Chief Ju.-;ticeJU.-;tice Mason of the High Court: Jutlges·Jutlges' Conference. I May 1992.4. Justice Sheppard now ufthe feller:!!feuer:!l Court Justices Evatt ami

NSW Bar ASSllCi:llion Bar New~ 19\}319\)3 EJitinn - 31 d~I~;:I~e:~;;w;ii:~th,~;m,:e,n(then, with me, in the Arbitration Commission) now to assure me of heartfelt sympathy in my hour of need. I did ,;;,~'vcIY President of the Law Reform Commission and not know what they were talking about. Surely Justice ~ofthcHigll.' ~fthcHigh Court. Dennis Mahoney, now mycolJeague Meagher's observations were merely the public exchange of '~~ourt of Appeal. John Cahill still sits on the Industrial pleasantries between colleagues sharing, with the protcssion. minission• today as Vice-PresidentVice-~re~ident Judges Staunton and their inner thoughts.thoughts, , Bell still grace the DistrictDlstnct Court. Frank McGrath, For my part. 1 knew that there was no malice in Justice "teaene:r.:( teacher. presides in the Compensation Court. Nine Meagher's words. My reading is wide enough toenable me to arc left. The restrestor of our judicial company at that time have recognise a true personal denunciation when I see one. :d on _~ such is the cycle of the law. Take these words of Justice Rehnquist, joinedjOined by Chief In the Bar Association in 1974\974 Tom Hughes QC was Justice Burger in the Supreme Court of the United States in ",~I~;b~~t~in~~thatnt and in that capacity welcomed me to judicial office United Steelworkers of America v Webber.Webber . "It: rbitration Commission. It was in that speech that he ..... Bya tour de force reminiscent not ofjurists suchSitch as :ly claimed that I was well known for my "urbanity", Hale.Hale, Holmes and Hughes bittbllt of escape artists Sitchsuch as ,rthand reporter, who rarely erred, still swears (as she Houdini,Houdini. the Court eludes dearclear statutory language, ... :d) that he said "vanity". Tom Hughes's deputies were legislative history and uniformulliform precedent ..."."" 2:::!~';cGregor and Phillip Powell. The latest members of Council were Roger Court, Barry Toomey and myself. Or take Justice Rehnquist, again joined by Chief Justice ~ sidcnt of the Law Society was Alan Loxton. The most Burger but also by Justice O'Connor in Florida v Royer': I(silks of the time were still Clive Evatt and Hardwick. ,most",cc"tlymost recently appointed silk was Oneone M H McHugh QC. "The plurality's meandering opinion containscOlltaills inill it a do you remember Sid Webb? Sir Jack Cassidy of little something for everyone ... Indeed. In both manner agne chano? The redoubtable Jack Smyth? And that and tone,tone. the opinion brinss 10to mind the old nurserylIursery ised and graceful man, Marcel Pile? The senior juniors rhyme: 'The king ofFrance - with 40,00040.000 men -marched :dcd Wilf Sheppard. And Harry May and Ivan Roberts uplip the hillhill-- and thenIhell marched back again'. The opinion also there. Their spirits too are in this room with us nonetheless,nonetheless. in my \'iew,\'iew. betrays a mInd-setmilld-set morcmore IIseflilIIscflll hl ·They are here to remind us of our brief journey to those who officiate at sku!ffeboardskufffeboard gWlIcs.gWlICS, primarily gh ,hi"this ",'of,ess:;onprofession which gives so much and to which we concerned with which parricularparriclilar squaresqllare the disc has also make returns. landed on,on. thanthall to those who arcare JeckingJeding to10 administer e," When I first look up judicial appoimmentappnimment in 1974 there a system ofjustice ... " ~l;Were·~,"5!IOrnennb"rsofthe590 members ofthe Bar of New SOUlh Wales_Wales. Of them, ~~were'''NCn, ,<'JeensQueen's Counsel. Today there are 1700 members of Within weeks of writing thc"ethe!';c words, Justice Rehnquist ~r~,Bar and 200 silks. Inevitably, with the expansion of the was elevated to become his nation's Chief Justice. His strong ~lar, there have been changes. But many of the traditions of words were rewarded withwith:la marvellous judicial crown. When "l~':~I~~~)n(1U~sourage. honour randand c,oOl,ra,jc.·;hcomradeship il) endure.",d,,,e. akin to those enjoyed I1 measure Justice Meagher'sMeaghcr's worus against such vituperation. -I li~soldiers under fire. May it continue to be so. I realise once again how sweet is my brother's disposition. I also know Justice Meagher's writing well enough to be ~~RPASSING able to recognise, without hesitation, when he is straying from .~4· his natural disposition into a few gently chosen words of :;:!~'~f; Ofcourse, in the daily life of the law there are inevitable criticism.criticism, That was not so in Videski.Videski, as I hastened to reassure :;: ,::;-.C'risesthatblowup.up. They appear like asummerstOm1 and pass all those concerned for my sensibilities. For example, when i :~,~ayasquickly."'I"":«:Y. We saw such an event in Ihethe recent judgment his Honour took a mild dislike to Simon Gardiner's book An f.•.. '-.~.:.:.-_~9f._e., the C?urt of AppealAppe~l in VideskiVides~i v AIlS.Australiantralian Ironfron and St~elSteel Introduction to the Law of Trusts, he wrote the following t' ),~,RcyUmlted.lcry'e1m,"",.' FollowingFollowmg a few lllnocuousinnocuous comments of mmemine words, displaying a rare (but happily passing) note of ~;_9fl the need for sensitivity to different curial reactions by disapproval: ·v:c~opie of different backgrounds, Justice Meagher observed "This book. by an author whoII'ho has been a Fellow of ':!_::~atl had developed: Lincoln College.College, Oxford. sillcesince 1978. isIS one of the ::fS[ "An elaborate,elaborate. and distinct!...".distinct!.v xenophobic rodomonrade."rodomontade." Clarendon Law Series. a series 1\,hic1JI\'hich produced ~J?"'. Warming to this theme. he fashioned an apparently masterpieces such as H L A Hart.Hart, The Concert ofoUhethe i '~.~.~.Ical analysis of Macedonian truth-telling, illustrnted.illustrated. Law and Barry Nicholas' Introduction to Roman Law.Law, "I..fy~\Urally enough, by reference to Arnan's Life ofAlexander enough, by reference to Aman's Life of Alexander Alas,Alas. It is not of like quality." 'I;e'r!,h,~Great with allusions to the suggested taciturnity of And he finished his review with the following helpful advice: ~j!xander'sepigoni. f '::~::i~;~~i~~:; His Honour's appeal, in this confection, "No one should yield to the temptation to buy this book.book, t. :.,.,.':,":!Olntemational1tl human rights instruments was the last strawstraw.. .' .~:':'f;llt a~ least that suggested that_my tireless efforts in that ~,directitm ':t lreCl10n were having an impact upon his occasionally resistant 2. Unreported.Unreported.!17 7 JuneJune!1993. 993, For carlierearlier rcmarksremarks to the same al .t-teg thinking. effec!.effect. ~ee Askaf(lllAskaI'(J1I \.\' V('mil1dV(·mil1d Df'ff'lldalllD('f('lldall( (NSW)INSWj (1989) 8 I:;~ . In the cOnidorsconidors ofthe law. following this much publicised :-.tVR ..-Nlf91l:"S\\·C.·\. !:"S\\'C-\. :'><1:'''1 f::~I:::::.:;,~:~bfJha~ge, II. was stopped con~tantlyconstantly by J.nxious-looking 3. ...\..43l:S...!""t\ l:S \93.11

Ili· ."" .... g~"the aI/thor, /he publisher and the editors of the attitudinal correctness in judicial work. I do not wish tojustify .;"';'!rtildon La\\' Series, ought all to be ashamed of some of the jUdicial observations which have been criticised rltsell'es and of each other."?libertie!:>? Only the media itself: an unreliable and l,fappointment ofbarristers as HerMajesty's Counsel. flighty guardian I suggest. regret this move. I have already had my say upon it. In the face of media attacks. there has all toO often been ,the di'''PIPointIne.ntdisappointment of those who had a legitimate a deafening silence on the part of the Law Officers and the lion of appointment to that rank. I do not favour organised profession. I was myself"slammed"myself··slammed" (as it was put) ~g the leaden; of the Bar to those who enjoy the good by the Premier of the State in the Morning Hera/d.Herald. I ,n ;;fb"ITi'''''rs;.~of barristers. ~~~~'~i~~~:~::;Appointment by the Government of the had been rash enough to suggest consideration of a reform of permitted t~the infusion amongst the silks of a range of the Workers Compensarion Act which now deprives a worker I.alentsandatc"~',"onOlnot afewrebels. Now, that may be lost in this of compensation if the slightest fault is shown on a journey lregret it. home from work. The return to the 19th Century law of 'e have also seen a nasty row between barristers and contributory negligence. at this advanced stage of our legal , urged on by the countless official inquiries into the system. did not appeal to me as a meritorious reform of ~~:~~i:,f'~i;;i:~~~lwhiCh'ession ofAustralia which are now taking place. One compensation law. At least. I thought it deserved steady voice through this stormare now has beentaking the place. President One reconsideration by Parliament. Elsewhere.Elsewhere, I have told the lU ~ .w Society. Mr John Nelson.Nelson, here tonight. Numerous story of the media manipUlationmanipulation of this eventevent!U.• My present in the Bar have been foreshadowed. Some have point is simp Iy to ask. where was the AUomey·General and been adopted. Things long settled are coming under where was the Bar when this attack was made? y. It is fairly clear that the judiciary can no longer rely upon f?f the Bench,Bench. the worst event of the year was the conventional defenders of times gone by. Chief Justice Itedly the disgraceful action of the Victorian Government Mason told a Cambridge audience recently of his move tojoin 'eeriivellyively elisrni",ingdismissing ten undoubted judges of that State. the informal group of Chief Justices of Australia to be in a position to respond to serious matters of general jUdicial !ar:'~'li::;n;;~e~;~\::~V;:;i,~ctorianIges. members ofthe Victorian Compensation Tribunal.Tribunal, position to respond to serious matters of general jUdicial piTomised by Parliament and their warrants protection concern. This initiative comes not a moment too soon. stdismiss,,1;tdismissal ol:aofa kindeqKindeQ'u,valeuivalent n1l10to thattn.t enjoyed by judges When I was asked to appear on the Sixty Minutes idition since the Actor Settlement which followed the programme,programme,lI naturally hesitated. But in the end, when I was 'lausRevellutionsRevolution in England in 1688. The ground was laid IStc~tallytotally 'ma""ptablle~unacceplabIe assauassaultIt upon judicjudicialial independence 5. Cited Mr Justice B Williams.Williams, "Enlivening the Law" [19921 happened to Justice Jim Staples 7 and.and, in this State, to NZU 2BB.2SS, 291. leS McCrae' and Quin\ In all of these shabby 6. Unreported. 30 July 1993. ·"up""J""'C'"its upon judicial independence. both in and out of Court. 7. See MDM D Kirby, "The RemOl·al ofJustice Staples·Staples, Contrh'edCOnlrh'ed ~,had my say. But the voice (lrtlf the Bar. and until the Nonsense or Mat/erofPrinciple?"Mat/erofPrinciple?·· (1992)9 No 2 Aust Bar Rev nan case. of the Bench. huslcndcohas tcnded to be muted. Many 93. n~t see the danger to our institutilmali (' conventionsofthis 8. See Macrae \' AtfOrneyAttorney General for New SouthSourh Wales (1987) ~Jng bad precedent. 111c B~trB:tr l1\ll.Ql1llLq lift it:'it$ voice on such 9 NSWLR 26B26S (CAl. Ions. ltshould \uppl'n, !b: \ 1:~I'r:.l:i .lull:;::,:,jud:;;:O$ in their legal' 9. See AI/orneyAltorney Generalfor New Smull Wales \' Quin {1990f17Q(1990),170 ge against thcir Ji:-'11lh\.li.I. CLR I. Anoth""unl,"",md",'vch!rnlL'J1!Anothcrunh:lppy(!L'"cltlrnlL'J11 ha.\ been lhethe stereotyping 10. See MDM D Kirby. "Judiciary. Media and GOI'{!mment"Gol't!mment" in Idges as sexhit. Ami in thc intilkralllint,)kralH mcdia pressure for (1993>(199}) 3 Journal ofJudicial AdministrationAt/millis/ration fonht:oming.fonhcoming. ~ther judge \~ould do it, I ~elt.t~at someone injudic!al suggesting, the decision in Mabo'~will open up opportunities :ouldseek to mterpret the JUdiCIary fonhecommumty for true lawyerly work. Barristers should never forget Lionel 'c. We have not done this with skill and conviction in Murphy's counsel, offered in this common room when accident thope we will do better in defending the judiciary in compensati~compcnsati~ wason the brinkof abolition in 1974. One door ~re. And that we will have the support of the Bar in closes. Another door opens. There will always be a need in our society for skilled advocates. The long-tenn future of a so·: h~:;'~~~'~::~i~~I~g.~iven10ught should be given to collecting,collecting. in an appropriate profession of advocates is completely assured,assured. The commOn ~;;e retired Presidents~ of the Bar and of the Law Society law system necessitates such a profession. not judges to speak up forthefor the defenceofthejudiciarydefence of the judiciary But the profession must also be equal to the systems's is'attackedandisa""".kcaanototo explain its operation and imperatives requirements. In my years as a member of the Bar Association.Association, lJ:nmunity. Unless something like this is done,ldone.l fear I have seen regrettable signs of the decline of idealism in its willI continue to see the media-led erosion of public members. Perhaps this trend accompanied institutional legal ilce in the judiciary of this country that has been such aid. In those far off early days of which I spoke, it was by no of the year past. means unusual for the leaders ofofthethe Bar to appear in the major cases on what we would now call a pro bono basis. accepted a brief from me when I was a solicitor to help "liberate" the cinema at WalgcttWalgett for the Aboriginal yall of these comments I do not mean ro.rfor a moment to citizens of that town. Kevin Holland took a brief with Jim ""t thatlh'" trlCrcthere is not a ncedneed for rcfonnrcfann both min the Bar and Staples in the Flock Inquest into a police shooting. Maurice h. I th,in\'y<,uthink you 'willwill agree thatmuchofmy professional Byers led Gordon Johnson in the Corbishley Case'~ which leendedicated to refonn.rcfann. A natural modesty restrains produced Justice Holmes's memorable words: mentioning the many proposals for refoon of the "The picture is one which sholl'Sshows how the poor, sick and 'hich Imade in my BoyerLectures adecade ago which friendless are still oppressed by the machinery ofjllsticeojjllsrice noW come to passl' . At the time they were attacked. The in ways which need a Fielding or a Dickens to describe .1& of time has made them all secmseem rather mode:st.modc:sI. in I'lords and a Hogarth to portray pictorially."'~ have no doubt that the move to appointappoinlmoremore women to\0 nch will accelerate and I support this move. I believe We need more of this spirit of service from the Bar· and ili,sapprop'ri".c','IOdperfectlyitj,sappropnatc. and perfectly possible, {oensure[a ensure that the not just by the repeat players and idealists amongst you. The 'halsa reflects,, in a necessarilynccessarily general way, the variety leading commercial lawyers should offer aproportion ofthcirof their Ie COIllITlun.itycommunity it serves. A monochrome judiciary is times, in the traditions of old, to help the courts champion '~ble to the aPl""rarlceappearance of isolation and to attack. justice and right wrongs. -/Vfe;;:i:::~:i:;~n~have seen an enormous change in recemyears in the Last week I was in Malawi in Central Africa. I was there .Itt.ofjudicial I i intervention in theconductoflitigation.theconducloflitigation. This for the United Nations Electoral Unit in New York. The Life 'cen the judiciary'sjUdiciary's r~sponse to the legitimate public President.Presidem. Dr Hastings Manda. unwisely succumbed toa rush :ms about delay and cost. If the judiciary had not of self·confidence. Under the pressure of foreign aid donors Inded, others would do so. he submitted his One Party State to a referendum. The people, rille~:~~~~~:~~'Wfr~OUldimposition of timedo so. limits and other proce'dures to peacefully in their multitude, voted overwhelmingly to restore ~ delay and cost have been the most noticeable change in Parliamentary democracy. I~ception of the neutral passive judge - transfoonedtransformed to a The occasion of my visit was the first encounter in thirty more active manager of litigation. The extent of the yearsofthe Government and the Opposition leaders of Malawi. in my lifetime has been remarkable. Its absorption in Some of them had returned from long years in exile. A number '",e""r'e of a'decadedecade or so is a tribute to both the Bench and had been imprisoned. One such prisoner, who had been held .11 The process is continuing. What has been achieved for twenty-seventwenty·sevcn years, had that same charity which we have nStrates the error of suggesting that our profession is seen in the public conduct ofMr Nelson Mandela.Mandela, freed by his rvious to change. captors after such a time of incarceration in South Africa. In the Bar, too, there have been important refoons.reforms. Another prisoner was the leader of the legal profession. The " :asingly, in the Court of Appeal, we see senior counsel lawyers.lawyers, with the churches. were foremost in the demands for aearing .without':' ..'"' ,",,',v,.,juniors. Time limits are fixed. Argument ancndan end to the One Party regime. 1Jl~creaslngly reduced to writing. Cases are vigorously The twO sides sat on either end of the hall in Lilong\ve ttored and managed by the judges. Shoddy work is lookingateachotherforthe first time. "There is blood on their '[ted~"j ~o,to prof'''''ion.Iprofessional bodies. This week it was announcedarinounced hands!" the Opposition would say. I chaired the smallsmaJl groups the. Bar would henceforth permit direct access to other lfesslOnal groups such as accountants. The winds ofchange evetvw'W"everyWhere. 1II.[. See M 0 Kirby.Kirby, TheJudgcs.TheJudgcs, Boyer Leclures 1983. ABC. 1983,1983. . There is no doubt that these are hard times for many 70.70, ~sters. The stereotype about high earnings is by no means 12. See DLD L Mahoney. '·Delay··Delay ,..... A Judge's Perspeclil·e"Perspwi\'e" (l98~)(198~) crsal. What willwil1 keep the large numbers of new barristers 57 AU 30. 'y1 The decision of the HiohHigh Court in Dierrich'·'Dierrich'" will ,I i~crease 13. Di"frich \'\. The QueenQuccn (1992) 67 AUR 1I (He).(He) . btless. stimulate some increase in professional 14. (1992)175CLRI. ""'""",'ion'sentation in criminal trials. Perhaps. as the media is 15. Ex parle Corbishlcy; r{'re Locke [19671 2: NS\\'R 547\C547(C A). 16. Ibid. 549.549 .

. .: ..... "1"\. ere, these enemies of old talked to each other about the pressures to restore the French legal system and its language. ,-\\h-Whereofof their country . 1 also chaired the meeting as it moved But he saw some dangers in iSOlatingisolating Cambodia from its future . - to iis'is final seSSionseSSIOn. . natural trading partners in the region which unifonnly use the IOL.",ejuJges. The judges appeared. When the Chief Justice and his English language and are now profoundly affected by the " male and female colleagues, seeminglysec.mingly withoutwitho.u.t thought,thou.ght, common law system. The French are offering large sums for , lured(urcdtowards towards the Govemmcntsldc,Govemmentsidc. the OpPositionOPPosItion let itbeItbe the restoration of their culture and language. The Australian ~~~wnthatthey~~~wnthat they \vould\\lould walk out. Wisely, the judges took their Ambassador told me that he had a small fund available· a few I1 ccs in the neutral centre, evenly between the two sides. As thousand dollars - how could it be used? A pitiful sum for the fl~kCdft~ked at the .eyes of these judge~,jUdge~t I realised h?w .i~portan[.i~portant rule of law I thought. inourpolity it IS to have a neutral,neutral. Independent JudicIaryJudiciary safe The Minister appealed, through me, to idealistic in its tenure. Australian judges and lawyers. It would now be unacceptable The Constitution of Malawi provides in the normal way to have white faces on the Bench. But perhaps iflawyers were .- (orlhercmoval ofjudges forforpraved proved incapacity and misconduct. willing to spend some time in chambers with judges they could Butin 1988 a provision was added permitting the Life President explain, with more time than I had available, what it means to totoremov~ remove ajudge where, in his opinion,opinion. it was "in··in the public bring the rule of law to a country which until recently know interest so to dO".17 Pray do not laugh at such a provision,provision. This only the rule of the gun. ·isprecisely-is precisely what has occurred in our own country in the year On one occasion during this training session I swle away past in Vic.tori~. And toOoth~rto·oth~r ~udicial officers in recent times,times. from the classroom in the No 1I CounCourt of the Supreme Court at including toIn thiS State. JudicialJudiCial officers have been removed Phnom Penh. I took a motorbike to a back street, over a canal for what the politicians - our local equivalents of the Life to a large edifice. It was a building constructed by the French President-conceivedPrCsid~nt-conceived to be "in the public interest", interpreted as a high school. On the wall could be seen the graffiti of by them. generations of students - jests at their teachers scrawled on the Judicial tenure is the foundation stone of judicial walls in French. Cartoons of their European masters of earlier i~dependem:c.i~dependencc. , 0. We are not so much above Malawi that we times. In fact the three-storey building looked remarkably o cannotleam from its sad cxperience.experience. It is incumbent onjudges like my mvnown high schonl in Sydney. But there the similarity and all members of the legal profession to strive to teach the ended.cOlled. community about the foundation stonesstoncs of our democratic This was\\ as the torturetorturc place - the infamous S 21. Here the

o. way of life. victimsofthe Cambodian revolution were submitted to barbaric Before I went to Malawi I spent five days in Cambodia cmcltics.cnlelties. ,,, All of these acts were faithfully recorded. On the for the United Nations Transitional Authority. My task there wallswa1is arcar~ photographs with the searing, reproachful eyes of was 10to take part in a course of instruction for the, new judges thousands of victims of lawlessness and brutality. Those eyes , who will servcserve under the constitution of that unhappy country. remain with me. haunting me. They are the visible warnings They are new judges because Pol Pot and his OK regime of what happens to a society without the protection of law. c.ltenninatede.ltenninated all the old judges. Indeed.Indeed, vinuallyvirtually all of the As I walked beside the great lake we knew as Nyassa in lawyers of CambOdia were killed or drh'cn into exile. CentralCcntral Africa and stumbled around the jungle undergrowth at IntellectualsIntcllcctuals were conceived to be dangerous. They were Angkor WacWat in Cambodia. I had several hours to renect upon simply exterminated. the blessings of our legal system. It has become ever so . Teaching these young men and women how to be judges fashionable to attack it and its temporary players. DoubtlcssDoubtless msuchashort time was not easy. I told them to take heart from many of the criticisms are fully justified,justified. But when we look the great tradition of the common law. This. after all, is how around the world and compare our lives with those of most of ou~ j~dge.made system began. By honest people of integrity the other human beings we should appreciate,appreciate. and reflect S~vmg to determinedetennine cases with fairness. Building on upon, the inheritance whose good features we must strive to precedents towards a coherent legal system. explain,justify,explain. justify, defend and improve. The class in Phnom Penh asked questions which would I am grateful forthis dinner offered in my honour,honour. What .'be be rudimentary to us. May the judge remain a member of a have we shared together? political party? How shOuldshould the judge deal with a problem of I suggest that we have shared together the familiar conflicting evidence? They asked for books. How can we features of life at the Bench and the Bar. A touch ofnostalgia,of nostalgia, have the rule of law without Jaws?Jaws: WeWc have neino laws. I told with a wistful look back to the figures who provided the i~ themIhem thatthai the books from Australia would all bebc the Enolisho examples which we must now provide. A hint of humour and language. They would portrayponray a cornmancommOn law,system.lawosystem.o No gossip; but not too\00 much for ours is a rather serious business. mauer, they said. We must have reference bookS and we will Some thoughrsofchangingthoughtsofchanging times and new ways which remind Struggle with the English. us that even things long settled in the law can be changed and The Minister ~f Justice of Cambodia told me of the must submit to the popular concerns about cost and delay,delay. the law's enduring double burden. And there hu.<;has been optimoptimismism and idealism when we look 17. The Constitution (:vtalawi)(Malawi) 1966, s 64(J)(c) [tc)Hc) "Where the to the future. It is a future which takes our service as lawyers President considers it desirable in the publicpubtic interest 10to remove even beyond our O\....n country to a concern about the rule of him from such office."]. even beyond our o\""n country to a concern about the rule of .Iaw in countries rinserlo"e at hand and far away. 18. ~PChnndlcr.DPChandlcr. Brm/icrNuflliJerBrOlhcrNumber One: A Political Biogral'lryofBiogral'iryoj TheseThcse are;If\! tbe things which binu the BCOI.:hBcm:h andanu the Bar 1011'01 PO(,POI, Allen and Cnwin. 1993. See notenotc lJ\\'La\\' InstorVictoriaInslofVictoria things Bar (ViC),(ViC}, AugustAugusl 1993.755. together. I seesec thcmthem lllllChnmch in evidencecvidence about me tonight. 0 ... =-1

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