VICTORIAN No. 122 ISSN 0150-3285BAR NEWS SPRING 2002 New Practitioners Admitted by the First Women’s Full Court of the Supreme Court Welcome: Justice Nettle, Justice Dodds-Streeton Obituary: Justice Faltman The 2002/2003 Victorian Bar Council Recent Changes to Tax Laws Affecting Barristers Communism Embraces Capitalism: Refl ections on Chinese Law Horses for Courses Terror Nullius CLE Launch at the Essoign Club Victorian Bar on the Conference Trail Kiddle Revisited Music in Court Prosecuting in the South Pacifi c Morality is Lawyers’ First Responsibility Unveiling of Portrait of the Hon. William Crockett AO, QC The Tom Fantl Art Exhibition 3 VICTORIAN BAR NEWS No. 122 SPRING 2002 Contents EDITORS’ BACKSHEET 5 On War and Peace and Renovations CHAIRMAN’S CUPBOARD 7 New Bar Council, New Essoign Club ATTORNEY-GENERAL’S COLUMN 10 Proposed Law Reform in Sentencing PRACTICE PAGE 11 Legal Practice Act 1996 Welcome: Justice Welcome: Justice Obituary: Justice 12 Legal Profession Tribunal: Publication of Nettle Dodds-Streeton Flatman Orders CORRESPONDENCE 13 Letter to the Editors WELCOME 16 Justice Nettle 17 Justice Dodds-Streeton OBITUARY 18 Justice Flatman BAR COUNCIL MEMBERSHIP 20 The 2002/2003 Victorian Bar Council ARTICLES 22 Recent Changes to Tax Laws Affecting Barristers 25 Communism Embraces Capitalism: Refl ections on Chinese Law 30 Horses for Courses 35 Terror Nullius The 2002/2003 Victorian Bar Council NEWS AND VIEWS 37 CLE Launch at the Essoign Club 39 Victorian Bar on the Conference Trail 39 Inaugural World Conference of Barristers and Advocates 42 Decline of Cab-Rank Rule Discussed 44 Australian Bar Association Conference 47 Verbatim 48 New Practitioners Admitted by the First Women’s Full Court of the Supreme Court 51 Kiddle Revisited 52 Music in Court Refl ections on Chinese Australian Bar CLE Launch at the 54 Prosecuting in the South Pacifi c Law Association Essoign Club 56 Morality is Lawyers’ First Responsibility Conference: Paris 57 Unveiling of Portrait of the Hon. William Crockett AO, QC Cover: 58 The Tom Fantl Art Exhibition At page 17, Victorian Bar News publishes a welcome to Her Honour Justice Dodds -Streeton, following her appointment to the Victorian LAWYER’S BOOKSHELF Supreme Court bench on 31 July 2002. 59 Books Reviewed Her appointment enabled a Full Court of women justices comprising 62 CONFERENCE UPDATE Justices Balmford, presiding (centre); Warren (left); and Dodds-Streeton (right), to preside at the admission ceremony for new practitioners on 5 August. 3 Victorian Bar Council VICTORIAN BAR COUNCIL Chair of Standing Committees of the Bar Council for the year 2002/2003 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee R *Redlich QC, R.F. (Chairman) W Brett QC, R.A. H *Rush QC, J.T. (Senior Vice-Chairman) Conciliators for Sexual Harassment and Vilification W *Brett QC, R.A. (Junior Vice-Chairman) F Rozenes QC, M. F *Rozenes QC, M. Counsel Committee G *Howard QC, A.J. H Rush QC, J.T. F *Dunn QC, P.A. B *Ray QC, W.R. Equality Before the Law Committee A *Shand QC, M.W. (Honorary Treasurer) W Brett QC, R.A. F *Dreyfus QC, M.A. Ethics Committee B *McMillan S.C., Ms C.F. B McMillan S.C., Ms C.F. G *Crennan S.C., M.J. Human Rights Committee F *Quigley, Ms M.L. (Assistant Honorary Treasurer) D Fajgenbaum QC, J.I. H *McGarvie R.W. A *Richards Ms J.E. Legal Assistance Committee D *McLeod, Ms F.M. G Howard QC, Anthony J. D *Riordan P.J. Legal Education and Training Committee W *Neal D.J. B Ray QC, W.R. D *Duggan A.E. Past Practising Chairmen’s Committee D *Gronow M.G.R. G Berkeley QC, H.C. B *Coombs, Ms D.J. Professional Indemnity Insurance Committee F Knight, Ms K.J. A Shand QC, M.W. D *Attiwill R.H.M. (Honorary Secretary) D *Moore Ms S.E. (Assistant Honorary Secretary) Victorian Bar Dispute Resolution Committee S Martin QC, W.J. Ethics Committee Victorian Bar Theatre Company Steering Committee B McMillan S.C., Ms C.F. (Chair) A Derham QC, D.M.B. H Merralls AM, QC, J.D. S Willee QC, P.A. S Lally QC, W.F. P Bartfeld QC, M. F Dreyfus QC, M.A. D Clark S.C., P.H. G Lacava S.C., P.G. H Lewis G.A. A Macaulay C.C. M Clelland, N.J. F Quigley, Ms M.L. F Shiff, Ms P.L. G Judd, Ms K.E. D Riordan P.J. VICTORIAN BAR NEWS Editorial Committee Opinions expressed are not necessarily Editors John Kaufman QC, Olyvia Nikou S.C., those of the Bar Council or the Bar. Gerard Nash QC, Paul Elliott QC and William F. Gillies, Carolyn Sparke, Printed by: Impact Printing Judy Benson Georgina Schoff, Paul Duggan, Peter 69–79 Fallon Street, A. Clarke, Nicola Gobbo, Victoria Brunswick Vic. 3056 Editorial Board Lambropoulos, Richard Brear (Editorial This publication may be cited as Julian Burnside QC Assistant) and Peter Lithgow (Book (2002) 122 Vic B.N. Jack Rush QC Reviews) Graeme Thompson Advertising David Johns (Photography) Publications Management Pty Ltd Editorial Consultant Published by The Victorian Bar Inc. 38 Essex Road, Surrey Hills, David Wilken Owen Dixon Chambers, Victoria 3127 205 William Street, Melbourne 3000. Telephone: (03) 9888 5977 Facsimile: (03) 9888 5919 Registration No. A 0034304 S E-mail: [email protected] 4 5 Editors’ Backsheet On War and Peace and Renovations ALL THE WAY WITH LBJ Y this time this issue goes to press, it may be that we have a US-led Binvasion of Iraq. Not to invade Iraq, apparently, is to allow terrorism to go unchecked and to allow Saddam Hussein to continue with the development of weapons of mass destruction. It is a “necessary pre-emptive strike”. What is proposed is possibly analo- gous to invading Germany when Hitler, in defiance of the treaty of Versailles commenced building up Germany’s naval strength. However, when we note Mr Chaney’s comment that the Americans will go into Iraq as “liberators not con- querors” the analogy may more clearly be drawn with the German invasion of Czechoslovakia to protect the interests of the Sudeten Germans. One must but question the legitimacy of any attack on Iraq not sanctioned by the United Nations. Vietnam. We were wrong. And we know bookcases. More significantly rents will So far as we are aware no Iraqi has we were wrong. We should not make the have increased for an upgrade of premises been shown to have been involved in the same mistake again. which, it appears, most of those living in events of September the 11th — or, as ODCE do not really want. we used to write it in this country, 11th RENOVATION OF ODCE There is also a concern among many: September. Osama Bin Laden is not an On a more domestic and immediate point, (a) that the cost of the upgrade is dispro- Iraqi and none of those who are shown the renovation of Owen Dixon East is gen- portionate to the benefit to be derived by to have been involved in the attack on the erating a considerable amount of unhap- the Bar or to any increase in the value of United States are Iraqis. piness. The source of the unhappiness the building to BCL; and (b) since there What happened in New York on 11 lies in the fact that many people do not is no depreciation reserve or building September was horrifying. But what want the upgrade (or the extent of the reserve to be called upon that the liability happened on that day (although more upgrade) which is being carried out. incurred as a result of the upgrade will unexpected) was not as horrifying as the Tenants of ODCE are required to vacate need to be met — and ultimately that fire bombing of Dresden during World War their rooms while the upgrade takes place means that it will be met out of the pock- II. Nor did it change the world as did the and, unless “permanently displaced” will ets of members of the Bar. And the ques- events of 17 July 1945 when the United then move back to their old rooms. BCL tion many ask is “Is it worth it?” States Air Force dropped a nuclear bomb is providing alternative accommodation on Hiroshima. during the period of “vacating”. But to NEGLIGENCE IN THE 21ST CENTURY The reaction to the destruction of the move all one’s books and — if one is lucky When Lord Atkin, faced with a putative Twin Towers has already led to a greater enough to have them — all one’s briefs and snail in a bottle, coined his definition of number of civilian deaths in Afghanistan then to unpack them for a relatively short the duty of care which each of us owes than the number who were killed in the period of time is extremely disruptive. It to his or her neighbour, he did not realise Twin Towers. is even more disruptive to leave the books that he was creating a serious problem for The ideology was clear. We were packed and try to practise effectively out the insurance industry. fighting to stop the implementation of of a suitcase. Of course, Lord Atkin was not con- the domino theory and the spread of the When the inhabitants of ODCE return cerned with insurance. He was concerned communist empire. Today it is generally to their rooms they will find that many with the “good old days” when tort law recognised that our involvement in that of the fittings have been stripped.