Justice William Charles Crockett AO - Victorian Bar

Gummow and Kirby JJ held that forsuch a power to be exercised by theexecutive was unconstitutional.Gummow J said at [140]:[I]t cannot be for the executive governmentto determine the placing from time to timeof that boundary line which marks off acategory of deprivation of liberty from thereach of Ch III. The location of that boundaryline itself is a question arising under theconstitution or involving its interpretation,… Nor can there be sustained laws forthe segregation by incarceration of alienswithout the commission of any offencerequiring adjudication, and for a purposeunconnected with the entry, investigation,admission or deportation of aliens.Kirby J expressed himself somewhatmore succinctly at [146]:Indefinite detention at the will of the executive,and according to its opinions, actionsand judgments, is alien to Australia’s constitutionalarrangements.As already stated, the majority of theHigh Court held that the executive couldorder such indefinite detention withouttrial.But it is not only in this case that wesee evidence of a movement back towardsthe dark ages of the Star Chamber anddetention without trial. The legislatureof the Commonwealth of Australia haspassed legislation which permits detentionwithout trial and which inhibitsthe victim of such detention in takingany steps to attack the legality of suchdetention. See sections 34D to 34X of theAustralian Security and IntelligenceOrganisation Act 1974.The effect of these sections is that individualsmay be arrested and questionedby ASIO but may not reveal to their legaladvisers, in many circumstances, the factswhich would support an allegation thatASIO had exceeded its powers, had actedimproperly or otherwise in its dealingswith them or had acted contrary to law.They may not tell their lawyers everythingthat happened during detention or whilebeing taken into detention until at leasttwo years later because it may reveal“operational information”. The Ministermay prohibit their lawyers from havingaccess to information which may be vitalto the question of whether the detentionwas legal or illegal.Our Attorney-General, the Chief LegalOfficer of the Commonwealth, the headof the legal profession, has indicated thatalthough he would not condone the use oftorture to obtain a confession, the fact thatsome milder form of coercion has beenexercised should not prevent a confessionfrom being admitted into evidence.In the “fight against terrorism”, weseem to have abandoned many commonlaw principles, and much of the moral codewhich we have developed over centuries.We are abrogating the very rights whichthat fight purports to be protecting.Topically, this abandonment of principleappears very clearly in the caseof David Hicks to whom the AustralianGovernment has failed to extend theprotection to which, as an Australian citizen,he is entitled. The duty of allegiancecarries as its concomitant the Sovereign’sobligation of protection. See Joyce v DPP[1946] AC 347 where Lord Jowitt LC saidat 368:The principle which runs through feudal lawand what I may perhaps call constitutionallaw requires on the one hand protection, onthe other fidelity: a duty of the Sovereignto protect, a duty of the liege or subject tobe faithful.This principle, fundamental to the conceptof allegiance, appears to be one ofwhich the executive of the Commonwealthis unaware. Obligation begets obligation.Loyalty is a two-way street.HICKS: A QUESTION OF JURISDICTIONHistorically the criminal law of Englandwas seen as extending to all those withinthe realm and to all those who owed allegianceto the Sovereign, wherever theymight be. It did not extend to aliens (orforeigners) outside the King’s dominions.Kenny Outlines of Criminal Law,Cambridge University Press, 1902 atpp.411-412 says:According to International Law a Stateought only to exercise jurisdiction oversuch persons and property as are withinits territory. And in criminal matters itcannot always exercise jurisdiction over anoffender even though he actually be withinits territory. For it is forbidden by InternationalLaw to try foreigners for any offenceswhich they committed outside its territorialjurisdiction ...International Law, although forbiddingStates to exercise criminal jurisdiction overany foreigner for an offence committed byhim outside their territorial jurisdiction,nevertheless leaves unlimited their powerto punish their own subjects.A general exception to this principlewas to be found in the crime of piracy.Piracy appears to have its origins in internationallaw rather than in the commonlaw: see Anonymous (1604) Moore KB756. There was no common law offenceof piracy; but the courts of all nationsexercised jurisdiction to punish piracyjure gentium. A pirate was said to behostis humani generis: see R v Marsh(1615) 3 Bulst 27. As Pickford J expressedit in somewhat less pretentious terms, inBolivia Republic v Indemnity MutualMarine Assurance Co. Ltd. [1909] 1 KB785 at 791, a pirate is “the enemy of thehuman race”.The United States of America derivesits common law from 17th and 18th centuryEngland. Yet, contrary to the commonlaw tradition, it has purported to extendits criminal jurisdiction to non-citizensoutside the United States. Paradoxically,the United States District Court has heldthat it has no jurisdiction to examineor to police the legality of the trial ofsuch persons in the custody of the USmilitary.It may be argued that internationalterrorists, or those alleged to be terrorists,may be seen as akin to pirates inthat they are “the enemy of the humanrace”. But the United States does not callon international law to justify its claim totry and to punish a person such as DavidHicks. Rather it relies on its own domesticlegislation. It appears that Hicks has nowbeen charged with the offence of givingmaterial support to terrorism, on the basisof US legislation passed long after he wasdetained in Guantanamo Bay. A remarkableextension of domestic criminal jurisdiction— in relation to which the establishedcourts of the United States have no jurisdiction!In its treatment of alleged terrorists theUnited States has ignored the principlesof international law. There appears tobe no question that its treatment of theGuantanamo Bay prisoners has violatedthe principles of the Geneva Conventionand of the International Covenant on Civiland Political Rights.Hicks has now, after five years of illegalconfinement in inhumane conditions,pleaded “guilty” before a kangaroo (orperhaps jack rabbit?) court. That plea maywell be seen as no more than a plea forfreedom. If so, the Australian Government,and we as the electors, have much ofwhich to be ashamed.The Editors6

of our democratic society governed by therule of law. Sir Owen Dixon put it thus:It is the duty of the barrister to standbetween the subject and the Crown, andbetween the rich and the poor, the powerfuland the weak, it is necessary that,while the Bar occupies an essential part inthe administration of justice, the barristershould be completely independent andwork entirely as an individual, drawing onhis own resources of learning, ability andintelligence, and owing allegiance to none. 7Prior to David Hicks pleading guiltyto one charge before the United StatesMilitary Commission, the Chief USMilitary Prosecutor, Colonel Morris Davis,was reported as having “warned DavidHicks’ military lawyer, Michael Mori, that“politicking” on behalf of his client couldresult in charges under the Uniform Codeof Military Justice” and “cited Article88 of the Code which prohibits the useof contemptuous language against thePresident, Vice-President, Secretary ofDefence and Congress”. 8This was not the only reported commentby Colonel Davis about lawyersrepresenting Guantanamo Bay detainees.In March 2006, at a press conferenceat Guantanamo Bay, Colonel Davis isreported to have said it was “‘ironic’ thatbig law firms representing large defensecontractors like Boeing Corp. allow theirlawyers to represent Guantanamo Baydetainees pro bono”. 9Commenting on Colonel Davis’sstatements about Major Mori, the ChiefDefense Counsel for cases before themilitary commission, Colonel Sullivan, hasdescribed Major Mori’s conduct as “absolutelyproper”; and said that, in pressingDavid Hicks’ case in Australia, “Major Moriis fulfilling his duty as an officer and as anattorney”. 10Colonel Davis has said it was never hisintention to charge Major Mori or removehim from the case. He was still reported asmaintaining that Major Mori’s statements,for example, that the President, Secretaryof Defense and Congress “intentionallycreated a rigged system that guaranteesconvictions in order to cover up wrongdoing”,are improper. 11In controversies of this kind, we shouldnot lose sight of the principle that, in ademocratic society governed by the ruleof law, a client has a right to independentcounsel. We must be ever vigilant toprotect that right. It is eroded whenevercounsel is subjected to threats, recriminationor punishment for doing no morethan lawfully discharging their duty totheir client under their retainer. The issueis the proper administration of justice justas the immunity of the party, witness,We should not lose sightof the principle that, ina democratic societygoverned by the rule oflaw, a client has a right toindependent counsel. Wemust be ever vigilant toprotect that right.counsel, jury and judge for words spokenin court has been said to lie in “the publicinterest in the ‘effective performance’ ofits function by the judicial branch of government.”12On Thursday 1 March 2007, 48 readersincluding two from Vanuatu began theVictorian Bar Readers’ Course.Our Bar Readers’ Course is long establishedand highly regarded. Our system ofindividual mentors, and individual seniormentors, gives Readers accommodationin their mentor’s chambers for the ninemonths reading period, and individualsupport. Our system of BCL chambersand accredited barristers’ clerks providesaffordable chambers and administrativesupport. Our open door policy is an ongoingnetwork of support, not only for newmembers, but for the whole Bar.All going well, the new readers will signthe Roll of Counsel of the Bar in May andbecome practising barristers. I wish themwell.Michael ShandChairmanNotes1. CV Wedgewood, the Trial of Charles I,Penguin (1964), 28.2. Address by Justice Michael Kirby to theAnglo-Australian Lawyers’ Association inthe Great Hall of Gray’s Inn, London on 22January 1999 entitled The Trial of KingCharles I — Defining Moment for OurConstitutional Liberties — available onthe High Court of Australia website.3. Wedgewood, 44.4. Geoffrey Robertson The TyrannicideBrief (Vintage Books London 2006) p.154.5. Ibid, 314.6. Ibid, 337.7. Sir Owen Dixon Address upon taking theoath of office in Sydney as Chief Justiceof the High Court of Australia on 21 April1952 in Jesting Pilate (Law Book Co1965) at 245.8. The Australian 3 March 2007 “Moricharges could be laid after trial”; seealso The Age 3 March 2007 “Mori couldbe taken off Hicks case, derailing trial”and The New York Times 5 March 2007“Terror Case Prosecutor Assails DefenseLawyer”.9. Legal Times 28 March 2006 “Top LawFirms Join Forces in Landmark DetaineeCase”.10. The New York Times 5 March 2007 “TerrorCase Prosecutor Assails Defense Lawyer”.11. Ibid.12. D’Orta Ekenaike v Victoria Legal Aid(2005) 223 CLR 1 at [42] per Gleeson CJ,Gummow, Hayne and Heydon JJ [footnoteomitted].AdmissionCeremonies 2007The Chief Justice has set downthe following dates for AdmissionCeremonies in the second half of2007 as follows:Tuesday 14 AugustTuesday 18 SeptemberTuesday 16 OctoberTuesday 13 NovemberTuesday 11 December8

Attorney-General’s ColumnSuccess of Victoria’s FirstNeighbourhood Justice CentreTHREE years ago I had the enormousprivilege to witness a moment inthe life of New York’s Red HookCommunity Justice Centre, a momentthat sparked the momentum for perhapsVictoria’s most unique legal reform project.Housed in a renovated schoolhouse inBrooklyn, this Centre was administeringjustice at the cutting edge, engagingwith a local community to find solutionsto the offending patterns of locals whocame before the court. While I was there,a woman came before the judge who hadbeen in contact with the court when herson was up on various drug charges. Uponquestioning the young man and his family,the judge discovered that the boy’smother also had an addiction.Although the woman had not beencharged, the judge drove home the importanceof her own rehabilitation to herson’s recovery and she agreed to undergotreatment. Returning before the court,she reported an incredibly positive turnaround, an enrolment in a counsellingcourse and an optimistic future for bothher and her son. I have no doubt it gavethat young man a much better chance ofgetting off the cycle of drugs and crimeand his family and community a betterchance of supporting him.Obviously, similar stories were beingplayed out across Victoria already.Insightful and compassionate magistrateswere already using the rather ad hocarray of opportunities available to themthrough Diversion and CREDIT programsor sentencing options to steer peopleonto more constructive paths where theycould. However, there was no jurisdictionwith the freedom to focus solely on a localcommunity.I returned inspired and determined,then, to see what we could do in Victoriato increase creativity and local participationin the law and, in consultation acrossthe legal system, decided to establish aVictorian form of neighbourhood justice— one that drew its strength and authorityfrom the participation of a ready, ableand willing community. After three yearsof hard work from countless numbersof people, on Thursday 8 March I wasincredibly proud to open Victoria’s firstNeighbourhood Justice Centre, also thefirst of its kind in Australia.Located in the City of Yarra, this onestopshop houses on-site services forvictims, civil litigants and communityfacilities; while people’s offences can beconsidered at the same time under thesame roof, presided over by just onemagistrate who knows the community andwho can immediately connect offenderswith appropriate services to address thecauses of their criminal behaviour, manyof which will involve doing work neededby the local community. The task of theNJC, then, is to know the people of theCity of Yarra; to restore faith in justicefor some who lost it long ago, to help thisparticular community draw on its myriadstrengths, to build on its faith and hope inone another. Its job is to know what willwork and what will not: in short, to findlocal solutions to local problems.None of this means, of course, that thisCentre is a soft option. As readers will bekeenly aware, too often the language ofreform and genuine results is misrepresentedby those of mean spirit and evenless imagination as “letting people off thehook”. This could not be further from thetruth. The NJC is about using the mechanismsavailable to any court to make surethe law works; about harnessing the senseof accountability offenders feel when theybelong to a community.Extraordinarily, when legislation wasbeing debated in the House last year toestablish the NJC, the State Oppositionvehemently opposed it, one member,notoriously afflicted by foot in mouthdisease, even labelling it “apartheid justice”!This, of a Centre designed to unitea community, not divide it — a communitythat helped choose its magistrate (along time member of the Victorian Bar),a community that got this project off theground, a community that will be crucialto its success.Well, I wish its opponents had seen it— I wish they’d emerged, blinking, fromthe gloom of the Melbourne Club and seenlawyers, judges, social workers, healthworkers, Government Ministers and, mostimportantly, hundreds of local communitymembers come together on the day of theNJC’s official opening to show that theywant to make a difference. It was an amazingday, full of life and hope — a signal ofthe direction in which justice is headingand, on a personal note, the reason my jobis such a privilege.The chance to kick off reform of thiskind is also, however, what the privilege ofGovernment as a whole is about. In its ownsmall way, the NJC represents the beliefthat Governments have an obligation tothe community and to the disadvantaged;it represents the belief that we can’t pretendthat dysfunction or offending behaviourdoesn’t happen, that we can’t pretenddisadvantage doesn’t exist or have knockon effects. It represents the belief that wemust continue to find better ways of doingjustice, of bringing relevance and meaningto the law for all Victorians.The NJC is for and of the people ofthe City of Yarra but its meaning, as thebest kind of change always does, will alsoresonate across the system as a whole. Iencourage all members of the Bar to getdown to Collingwood and spend sometime at the NJC — to spend some time atthe face of the way we will be doing justicein the future.Rob HullsAttorney-General9

Letters to the EditorsSymptoms Not SeenDear EditorsRe: Article “Surviving the Law”,by Geoff Gibson — Bar News, Spring2006have no doubt that in his articleI “Surviving the Law” Geoff Gibson wasseeking to explain the untimely passingof Brendan Griffin in the context ofpressures which can be imposed by thecompetitive life which is life at the Bar,and which affects different individuals indifferent ways. However, in the courseof drawing his comparisons, I think hehas done a disservice to the careers (andnow memories) of Woods Lloyd and NeilMcPhee. For my own part, I was unableto see the purpose of bringing the livesof either of these former barristers intothe context of the article; but insofar asit suggests that Woods Lloyd had an alcoholproblem, and was in the business of“drinking himself to death”, I simply cannotagree with it. Nor can I agree with theunderlying suggestion that Neil McPheeused to find solace and release of stressin his abuse of alcohol. I knew both Woodsand Neil very well. I shared chambers withWoods for many years prior to his death;and I was close friends with Neil for all theyears I was at the Bar. At no time did I seethe symptoms which Geoff describes ineither of them. It is, I think, erroneous tosay that Woods died from a disease whichwas the “product of stress and alcohol”.As I understand it, he died from what wasthen an untreatable cancer. Likewise, Neildied from similar causes.I am not familiar with the particularepisodes which Geoff describes to drawthe conclusions which he did. I would simplysay that “one swallow does not make asummer”. Both men enjoyed a drink, butnever to the point where it interruptedwith their professionalism. The same — Iwould like to think — could be said aboutthe majority of the Bar. In any event, NeilMcPhee and Woods Lloyd were consummatepractitioners whose reputations andmemories should not be sullied or underminedby suggestions that they were“alcohol abusers”.Yours faithfullyJohn WinnekeSounds FamiliarDear Editors,IT pains me to say that it appears thatyou have fallen into the same trap asthat which you say members of my ownprofession collapse into. In your editorial,you make reference to an article by me inwhich you imply that I am of the view thatpress scrutiny is making the “judiciaryuncomfortable”. In fact, that statement isa quote from the Australian Press Council,not by me, and it is appropriate that youshould report it as such. In fact, my articlecomes to very much the same conclusionas your own and for that reason has theheadline “Balance is the Key”. However, areader of your editorial, who had not readmy article, would draw the conclusion thatI thought the media was without fault inits reporting of the judiciary. That is notthe case and the following section frommy piece makes that clear:Community standards are a relevant factorin sentencing and the media is entitled toreport where decisions are out of kilter withthose expectations. And the media is entitleddo so in a manner people can understand.And the cases in Western Australia ofButton, Beamish, Mallard and Mickelbergshow the media has a role in bringingto public attention cases of injustice.But there is a difference between questioningthe reasons for a judge’s decisionand ignoring those reasons andfocusing on the decision without anycontext, balance or reference to thelaws that must be applied by the judge.Those are the lines that are increasinglybeing crossed. The shrill and simplisticcomment by those who don’t bother toread or understand a decision they criticisedamages not only the reputation of courtsand journalists, but the administration ofjustice.I see no acknowledgement in yourpiece of the important role the mediaplays in bringing miscarriages of justice topublic attention. But above all, it does notappear that you have even fully read myarticle, or have chosen to take one bit ofit out of context. Hmmmm ... that soundsfamiliar.RegardsMarcus PriestVISITING GEELONG?The Heymarket Boutique Hotel providesovernight/weekly accommodation to legal,medical and academic corporate travellers.Ask about our Vic Bar Corporate Rate*Reservations: 03 5221 1174www.heymarkethotel.com.au244 Moorabool Street, Geelong*Vic Bar Corporate Rate includes: Wireless high-speedinternet, light continental breakfast, morning newspaper, secureoff-street car parking and access to fully equipped guest kitchenand guest laundry.10

Practice PageLegal Profession Act 2004Practitioner RemunerationOrder (Includes GST)WE the Honourable Marilyn Warren, Chief Justice ofthe Supreme Court of Victoria, Peter Arnold Shattockand Philip Laurence Williams being two personsnominated by the Attorney-General, Ariel Weingart and PeterBardsley Murdoch QC being two members nominated by theLegal Services Board, Margaret Cairns Gourlay being a personnominated by Law Institute of Victoria Ltd, and Nicholas JosephDamian Green QC being a person nominated by Victorian BarInc. and being the seven persons authorised in that behalf by theLegal Profession Act 2004 do hereby in pursuance and exerciseof the powers thereby conferred upon us order and direct inmanner following:1. This Order may be cited as the Practitioner RemunerationOrder and shall come into operation on 1 January 2007.2. This Order applies:(a) in the case of business to which the Second, Third andFourth Schedule applies — to all business for whichinstructions are received on or after the day on whichthis Order comes into operation; and(b) in the case of any other business to which this Orderapplies — to all business transacted on or after the dayon which this Order comes into operation.3. (1) The Practitioner Remuneration Order commenced 1February 2006 is hereby revoked.(2) Notwithstanding the revocation of the PractitionerRemuneration Order commenced 1 February 2006, theprovisions of that Order shall continue to apply to andin relation to business, other than business referred toin Clause 2, in all respects as if that Order had not beenrevoked.4. (1) In this Order and in the Schedules, unless inconsistentwith the context or subject matter:“Folio” means 100 words or figures or words and figures.“In print” means in print on a form readily availablefor sale to the public. “Document” has the same meaning as under Section 3(1) of the Evidence Act 1958.“Typewriting” means the production and presentationof words, figures and symbols on pages or otherwiseby means of hand writing, typewriting or the useof word processing equipment or any other form ofmechanical or electronic production other than photocopying.(2) A reference in this Order and the Schedules to theconsideration is a reference:(a) where the consideration relates to a matter ortransaction and is not wholly monetary, to thesum of the monetary consideration and the valueof the real or personal properly included in theconsideration that is not monetary;(b) where the consideration relates to a matter ortransaction comprising land and personal property,to the sum of the consideration for the landand the personal property;(c) where the consideration or part of the considerationfor a matter or transaction is marriage or anyother consideration which is not monetary, orwhere there is no consideration for a matter ortransaction, to the value of the subject matter ofthe transaction;(d) where the consideration relates to a mortgage,bill of sale or stock mortgage by which a specifiedor ascertainable sum is secured, to the sumof the amount secured and the amount of anyother specified or ascertainable sum agreed to beadvanced and secured; and(e) where the consideration relates to the sale of anequity of redemption:(i) where the purchaser is the mortgagee andthe purchaser employs the legal practitionerwho prepared the mortgage — to the saleprice; and(ii) in any other case, to the sum of the considerationand the amount of any principal sumowing under the mortgage at the time ofsale.(3) Where the consideration relates to a matter or transactioncomprising land under the provisions of theTransfer of Land Act 1958 and other land, the remunerationof the legal practitioner shall be apportionedaccording to the respective values of the properties inquestion and remuneration may be charged in respectof each document necessarily prepared.5. (1) The remuneration of legal practitioners in respectof business connected with sales, purchases, leases,mortgages, wills, settlements, formation and registrationof companies, deeds of arrangement and othermatters of conveyancing, including negotiating foror procuring an agreement for a loan, and in respectof other business not being business in any actionor transacted in any court or in the chambers of anyJudge or in the offices of the Master of the SupremeCourt Prothonotary or other officer of any court andnot being otherwise litigious business, shall, subject tothis Order:(a) where the Second, Third or Fourth Scheduleapplies, be in accordance with that Schedule;and(b) in any other case, he in accordance with the FirstSchedule.11

the legal practitioner may not, in respect of the transaction,charge more than he or she would have been entitled tocharge if he or she were acting only for the mortgagee, lessoror creditor as the case may be.11. In respect of loans not exceeding $110,000 where a legalpractitioner acts for a society registered under the provisionsof the Co-operative Housing Societies Act 1958his or her charge under Part A or Part C of the SecondSchedule shall be reduced to 75 per cent of the charge otherwiseappropriate.12. The Second and Third Schedules shall not apply to mattersor transactions concerning any premises subject to alicence as defined in the Liquor Control Act 1987 and,accordingly, the First Schedule shall apply to those mattersor transactions.INSTRUCTIONSFIRST SCHEDULE1. A charge may be made by way of instructions in additionto the items hereinafter contained in this Schedule havingregard to all the circumstances of the case including the following:(a) The complexity of the matter and the difficulty andnovelty of the questions raised or any of them;(b) The importance of the matter to the client;(c) The skill, specialised knowledge and responsibilityinvolved;(d) The number and importance of the documents preparedor perused, without regard to length;(e) The place where and the circumstances in which thebusiness or any part thereof is transacted;(f) The labour involved and the time spent on the business;(g) The amount or value of any money or propertyinvolved; and(h) The nature of the title to any land involved.Notes:(1) A charge shall not be made pursuant to this item inrespect of the sale, purchase or transfer of land wherethe consideration does not exceed $60,000.(2) The charge pursuant to this item in respect of the sale,purchase or transfer of land where the considerationexceeds $60,000 shall not exceed 0.3 per centum of theconsideration.DRAWING2. Any document including memoranda of instructions tocounsel not in an action or a proceeding in court:(a) not in print, per folio — $15.00 to $24.40(b) partly in print, for so much as remains in print, per folio— $7.40(c) partly in print, for so much as is not in print, per folio— $15.00 to $24.40Note:There are approximately three folios in each A4 page.TYPEWRITING3. (1) Per folio — $9.30(2) For each carbon copy, photocopy or other machinemade copy, per page — $1.70.FACSIMILES4. Transmitting or receiving written material by means of thelegal practitioner’s own facsimile machine as follows:Transmitting: First page — $9.70.Each subsequent page — $3.30Receiving: First page — $9.70Each subsequent page — $1.70EMAILReceiving written material by means of electronic transmission(email) as follows:First page including copy of first page — $9.70Copy of second and subsequent pages, per page — $1.70PERUSING5. When it is necessary to peruse any document or part of adocument (including correspondence), whether in print ornot, per folio — $9.30.6. When it is not necessary to peruse a document or correspondencebut scanning of the document or correspondenceis warranted, e.g. to determine the relevance orotherwise of the document or correspondence, per folio— $4.80.LETTERSIncluding sending by electronic transmission (email)7. Formal acknowledgment or the like, e.g. letter enclosingdocuments, requesting a reply, etc. — $24.40.8. Circular letters, i.e. letters which except for the particularsof address are identical, for each letter after the first— $12.00.9. Other letters — $35.70 or such charge as is fair and reasonablehaving regard to items l, 2 and 3 of this Schedule.ATTENDANCES10. To file, lodge or deliver any documents or other papers, toobtain an appointment or to obtain stamping of a document,to insert an advertisement, or other attendance of a similarnature capable of performance by a junior clerk — $44.05.11. Making an appointment by telephone or similar telephoneattendance capable of performance by a junior clerk— $19.30.12. On counsel with case for opinion or other papers or toappoint consultation or conference — $67.50.13. On consultation or conference with counsel — $167.00.After the first hour, per half-hour or part thereof — $83.20to $129.70.14. Searching title and other searches, per half-hour or partthereof — $55.30.15. On settlement of a conveyancing or commercial matter— $53.30 to $83.50 After the first half-hour, per half-houror part thereof — $83.50 to $129.70.16. Attendance by telephone or otherwise requiring the personalattendance of a legal practitioner or his or her managingor senior clerk and involving the exercise of skill or legalknowledge; per quarter-hour or part thereof — $37.40 to$69.20.17. All other attendances; per quarter-hour or part thereof— $37.40.JOURNEYS18. For time spent occupied in necessary travel to and fromor necessarily spent in any place whether in or outside13

179 88 000 831 623 623 415180 90 000 844 633 633 421181 92 000 858 643 643 428182 94 000 870 652 652 434183 96 000 884 662 662 443184 98 000 896 671 671 448185 100 000 908 681 681 453186 110 000 953 714 714 476187 120 000 996 747 747 497188 130 000 1039 780 780 520189 140 000 1082 813 813 542190 150 000 1127 846 846 564191 160 000 1171 879 879 585192 170 000 1214 911 911 606193 180 000 1257 944 944 629194 190 000 1300 977 977 651195 200 000 1345 1007 1007 671196 250 000 1454 1091 1091 727197 Over 250 000add per 200 000 109 82 82 56198 * * * * * *199 * * * * * *200 * * * * * *PART B — STOCK MORTGAGE AND LIEN ON WOOL OR LIENON CROP1. Charges of legal practitioner for both creditor and debtorin connection with stock mortgage, lien on wool or lien oncrop comprising instructions, preparation and perusal ofdocuments, searches, attention to adjustment account (ifany) and all necessary attendances and correspondence tocomplete transaction on behalf of creditor and debtor shallbe the charges prescribed by Column 1.2. Charges of legal practitioner for creditor only in connectionwith stock mortgage, lien on wool or lien on crop comprisinginstructions, preparation and perusal of documents,searches, attention to adjustment account (if any) and allnecessary attendances and correspondence to completetransaction on behalf of creditor shall be the charges prescribedby Column 2.3. Charges of legal practitioner for debtor only in connectionwith stock mortgage, lien on wool or lien on crop comprisinginstructions, preparation and perusal of documents,attention to adjustment account (if any), searches and allnecessary attendances, and correspondence to completetransaction on behalf of debtor shall be the charges prescribedby Column 3.4. The charges prescribed in Column 1 shall only apply whereRules 8 and 9 of the Professional Conduct and PracticeRules 2005 made pursuant to the Legal Practice Act 1996does not prohibit the legal practitioner from acting for bothcreditor and debtor.Ref. No. Consideration Col. 1 Col. 2 Col. 3$ Not exceeding: $ $ $201 10 000 136 108 88202 12 000 149 119 96203 14 000 165 131 105204 16 000 180 142 114205 18 000 193 153 124206 20 000 208 164 135207 22 000 222 174 143208 24 000 235 185 153209 26 000 251 197 160210 28 000 266 208 170211 30 000 279 218 180212 32 000 293 230 190213 34 000 306 241 197214 36 000 322 252 207215 38 000 337 264 217216 40 000 350 275 226217 42 000 364 288 234218 44 000 378 299 242219 46 000 392 311 252220 48 000 408 322 263221 50 000 422 334 269222 52 000 431 339 275223 54 000 440 346 280224 56 000 448 354 288225 58 000 458 360 293226 60 000 464 367 299227 62 000 475 373 305228 64 000 482 378 311229 66 000 491 387 316230 68 000 499 392 322231 70 000 507 398 327232 72 000 518 405 334233 74 000 524 411 33917

234 76 000 534 420 343235 78 000 542 426 349236 80 000 552 433 354237 82 000 558 440 360238 84 000 568 447 365239 86 000 576 452 372240 88 000 585 459 377241 90 000 594 464 382242 92 000 603 471 387243 94 000 610 479 392244 96 000 619 486 398245 98 000 628 493 404246 100 000 638 499 410247 Over 100 000 — such additional charge as isreasonable having regard to the responsibilityinvolved in and the complexity of the transaction.PART C — RENEWAL OF BILL OF SALE1 . Charges of legal practitioner for creditor in connectionwith the renewal of a bill of sale comprising instructions,preparation and perusal of documents and all necessaryattendances and correspondence shall be the charges prescribedby Column 1.2. Charges of legal practitioner for debtor in connection withrenewal of bill of sale comprising instructions, perusals andall necessary attendances and correspondence shall be thecharges prescribed by Column 2.Ref. No. Consideration Col. 1 Col. 2$ Not exceeding: $ $248 10 000 56 33249 14 000 61 34250 18 000 66 38251 22 000 71 43252 26 000 76 46253 30 000 82 48254 34 000 88 51255 38 000 94 53256 42 000 99 58257 46 000 104 61258 50 000 109 65259 Exceeding 50 000 109 65PART D — SATISFACTION OR DISCHARGE OF BILL OF SALEOR STOCK MORTGAGE1. Charges of legal practitioner for creditor in connection withsatisfaction or discharge of a bill of sale or stock mortgagecomprising preparation and perusal of documents (includingmemorandum of satisfaction or discharge) and all necessaryattendances and correspondence and effecting finalsettlement with debtor, his or her legal practitioner or agentshall be the charges prescribed by Column 1.2. Charges of legal practitioner for debtor in connection withsatisfaction or discharge of a bill of sale or stock mortgagecomprising instructions, perusal of memorandum of satisfactionor discharge, registration and all necessary attendancesand correspondence and effecting fmal settlementwith creditor, his or her legal practitioner or agent shall bethe charges prescribed by Column 2.Ref. No. Consideration Col. 1 Col. 2$ Not exceeding: $ $260 10 000 56 33261 14 000 61 34262 18 000 66 38263 22 000 71 43264 26 000 76 46265 30 000 82 48266 Exceeding 30 000 82 48PART E — APPLICATION BY LEGAL PERSONALREPRESENTATIVE UNDER THE TRANSFER OF LAND ACT1958267. Charges of legal practitioner in connection with an applicationby a trustee, executor or administrator to be registeredas proprietor of real estate or mortgage, including instructions,checking title identity, preparation of application,necessary attendances and correspondence and registration— $225.90.268. For each additional certificate of title or mortgage producedbeyond the first title or mortgage referred to in theapplication — $21.30.PART F — APPLICATION BY SURVIVING PROPRIETOR269. Charges of legal practitioner in connection with an applicationby a survivor of joint proprietors to be registered asproprietor of real estate or mortgage, including instructions,checking title identity, preparation of application anddeclaration, necessary attendances and correspondenceand registration — $250.70.270. For each additional certificate of title or mortgage producedbeyond the first title or mortgage referred to in theapplication — $21.30.PART G — PRODUCTION FEE271. For production of Crown grants, certificates of title, titledeeds, or other documents in the possession of the legalpractitioner of the person entitled to the custody thereofat such legal practitioner’s office or at the Land Registry,Office of the Registrar-General or elsewhere, including,where necessary, endorsement of an order to register:for not more than two Crown grants, certificates of title,chains of title deeds, or other documents — $142.40.for each additional Crown grant, certificate of title, chainof title deeds, or other document beyond the second— $21.30.FOURTH SCHEDULEPART A — NEGOTIATING FOR OR PROCURING ANAGREEMENT FOR A LOAN WHEN THE MONEY IS IN FACTLENT AND THE LEGAL PRACTITIONER IS NEITHER THELENDER NOR ONE OF THE LENDERS272. In respect of money lent upon the security of real or leaseholdestate or personal property — 1.09 per centum uponthe amount lent.Note:If a legal practitioner negotiates for or procures an agreementfor the renewal of a loan he or she shall not in respectthereof be entitled to charge remuneration in accordance18

with this item and his or her charge shall be 0.55 per centumupon the amount of the renewed loan.273. (1) If a legal practitioner negotiates for or procures anagreement for a loan for his or her client being the borroweror mortgagor through the agency of any person(other than a legal practitioner) to whom a procurationfee is payable then he or she shall only be entitled toremuneration in accordance with the First Schedulein respect of negotiating for or procuring such agreement.(2) If a legal practitioner negotiates for or procures anagreement for a loan for his or her client being theborrower or mortgagor through the agency of anotherlegal practitioner then the remuneration provided byitem 272 shall be divided between the legal practitioners,two-thirds being payable to the legal practitionerfor the mortgagee and one-third to the legal practitionerfor the mortgagor.274. The remuneration prescribed under item 272 or 273 shallnot include disbursements reasonably incurred in travellingfrom any place of business and home respectively of suchlegal practitioner and disbursements otherwise reasonablyincurred in the inspection of the property mortgaged orcharged and in procuring the agreement for the loan whichdisbursements may be charged in addition to the remunerationso prescribed.PART B — FOR NEGOTIATING FOR OR PROCURING ANAGREEMENT FOR A LOAN WHEN THE MONEY IS IN FACTLENT AND THE LEGAL PRACTITIONER OR THE LEGALPRACTITIONER’S NOMINEE COMPANY IS EITHER THELENDER OR ONE OF THE LENDERS275. When the legal practitioner, or a nominee company of whichthe legal practitioner or a partner of the legal practitioneris a director, is either the lender or one of the lenders noremuneration shall be charged for negotiating or procuringthe loan, except in the following cases:(a) when the legal practitioner arranges and obtains theloan from a person for whom he or she acts and subsequentlyby arrangement with his or her client lends themoney and executes or signs the security in his or herown name or the name of a nominee company of whichhe or she or his or her partner is a director, he or she orsuch nominee company being in fact trustee or agentfor the person aforesaid; or(b) when the legal practitioner contributes portion ofthe money in fact lent, and arranges and obtains theremaining portion from another person not being his orher partner as a legal practitioner, not being a co-trusteewith him or her in relation to the money lent.276. In either of the foregoing cases a charge for negotiating orprocuring an agreement for a loan may be made at the rateprescribed in Part A in respect of the amount so obtainedfrom such other person.Note:If a legal practitioner negotiates for or procures an agreementfor the renewal of a loan from such other person he orshe shall not in respect thereof be entitled to charge remunerationin accordance with item 272 and his or her chargeshall be 0.55 per centum upon the amount of the renewedloan. 19

ObituaryJustice William Charles Crockett AOEulogy for the Honourable WilliamCharles Crockett AO, delivered onThursday, 15 February 2007, by theHonourable Allan W. McDonald.THAT which I wish to say this afternoonis in honour of the HonourableWilliam Charles Crockett AO, whowas born on 16 April 1924 and died on 6February 2007, aged 82 years.Although during his life, Bill Crockett’swork involved him being seen in the publicarena in the application and the administrationof the law, he was a private man.He was proud of his work and his achievements,however he was a modest man. Hewas a wise man, an intellectual disciplinarian,a man who understood people: acompassionate man.On a number of occasions when I havesat in the pews of a church listening to aeulogy being delivered I have wondered ifin some way it is directed to the “Keeperof the Gate” to assist in the gaining ofentry for the deceased. That is not mypurpose. If Bill Crockett has elected tocross the “River” and I believe that hewould probably have made that election,and if he is still outside the “Gate” and Ibelieve that would not be the case I wouldnot dare to interrupt that which is beingsaid by one of the most articulate persuasiveand skilled advocates of the CommonLaw of Australia.Bill Crockett was the only child ofRussell and Winnie Crockett. Russelluntil 1929 conducted a men’s clothingshop in Horsham, but with the onset ofthe depression the business was lost. Thefamily moved to Williamstown where, atthe age of four, Crockett commencedhis education at the Williamstown StateSchool.The family life of the Crocketts wasa very frugal life. Bill’s mother had greatambitions for her son. She found work ina cake shop and earned sufficient moneyto send Bill, as a boarder, to The GeelongCollege for the last two years of his secondaryeducation.In 1939 and 1940 Crockett attendedthat school. In 1939 he won the U16 athleticchampionship. It should be notedthat in 1940 there were two other studentsat The Geelong College who laterjoined Bill on the Bench of the SupremeCourt of Victoria, Richard Fullagar andBarry Beach.I should add a footnote: when I joined20Justice William Charles Crockett AO.the Supreme Court in 1988 Crockettwas very proud of the fact that four oldGeelong Collegians were on the SupremeCourt Bench together. He insisted that thefour of us have a photograph taken in fullceremonial robes for the school archives.Having matriculated, and aged 16,Crockett commenced a law courseat Melbourne University. After beingawarded a number of exhibitions alongthe way he completed his Bachelor ofLaws degree in 1944, being awarded theSupreme Court Prize. He sat honoursexams in 1945 and attained the degreeof Master of Laws. Later in his life theUniversities of Melbourne and Monasheach conferred on Crockett the honorarydegree of Doctor of Laws.In the citation which was read on theoccasion of the conferring of that honorarydegree by the University of Melbourneit was said, inter alia, “It would be true tosay that his Honour has a been a modelSupreme Court Judge both at the triallevel and as an appellate Judge. He isquick, courteous and more often thanmost, correct.”On 10 April 1945 Bill joined the navyand then discharged on 28 November1946. He served as an able seaman onthe HMAS Barwon. On being dischargedCrockett returned to the law. He becamean articled law clerk to Stuart Brown inHorsham, living in a room at the RoyalHotel. On admission to practice on 1March 1948 the Order recites his addressas the Royal Hotel, Horsham, much to thedispleasure of his mother.Straight after being admitted topractice Crockett signed the Bar Roll.

Immediately his decisive mind, his intellectand his advocacy became apparentand he built up a very successful practice.In 1961 I had the great good fortune tobecome a reader in Bill’s chambers. I witnesseda man rising to the top of his profession.No matter how hard I tried I couldnever be in chambers of a morning earlierthan him. I saw how pleadings drawn byhim and opinions written were presentedto his secretary on large tape recordingwheels for her to type. The tape recorderwas about the size of a large car “fridge”.One reason he gave me when agreeingto take me as a reader was the fact thathe was soon to be leaving SelbourneChambers for chambers then being built,Owen Dixon Chambers. I never attendedthe conferences conducted by Crockettin Selbourne Chambers. His room was toosmall for me to be included when a solicitorand client were present.Crockett was too busy to spend timeon the decoration of his new chambers.He left that to his secretary. The Sundayhe moved chambers, I assisted him. Onseeing for the first time the red carpetthat his secretary had chosen, he utteredan expression I have never forgotten. Hesaid, “She has all her taste in her mouth.”In 1962 Crockett took silk. His servicesas a barrister were much in demand incivil and criminal work. He always seemedto be too busy as a trial lawyer to beengaged in appellate work. He appearedin Royal Commissions, an inquiry into amaritime disaster and an inquiry into anair crash in which some 24 passengers andthe crew were killed. He was retained bythe VRC stewards. When the security ofthe currency was seen to be challengedwith forged $10 notes being circulated, hewas called to lead for the prosecution afterthe first trial had resulted in an acquittal.The security of the currency was re-establishedwhen the prosecution was successful.Crockett treasured an exhibit fromthat trial which was displayed in a smallframe hung on the wall of his Chambers: aforged $10 note marked “Exhibit”.Having seen him in court I have alwaysheld the view that Crockett, together withsuch counsel as Tony Murray and AlecSouthwell, changed the form and style ofadvocacy before courts and particularlywhen addressing a jury. Histrionics putaside, and not resorted to, rather thepertinent issues were identified and analysed.When juries were addressed theywere addressed in a matter of fact mannerand in a language they could understand.Bill’s life away from the law involved hisfamily, racing and travel.Bill married Anne on 20 December1950. I note the time as being duringthe Bar’s long vacation. They had fourchildren — Rosemary, Peter, Robert andLouise. Bill loved his family dearly andwas proud of them. His heart was brokenwhen Louise died some 18 months ago. Iwill never forget him attending her funeralservice in a wheelchair racked by thetremors of Parkinson’s Disease and beingseverely battered in spirit. The burden hecarried in his heart was greatly increasedwith Anne’s death. During the last years ofhis life and after his retirement, Crockettsuffered extremely bad health. Rosemary,a nurse, put her personal life aside andassisted and cared for her young sisterand her parents. When Anne died shemoved into Bill’s apartment to care forhim. Had it not been for her, Bill couldnot have maintained his independenceand lived in his home. I am sure you joinme when I express our condolences toRosemary, Peter, Robert, Louise’s husbandAndrew, his daughters-in-law andhis grandchildren.As I said Bill’s recreation from the law,other than being a Collingwood footballsupporter, was horse racing. He was amember of the Moonee Valley RacingClub. He served on the Committee for14 years, the last 10 of which saw him asthe Vice-Chairman. He was involved inrebuilding the facilities for members andpatrons at the Moonee Valley track. Hisadvice and sound judgment was soughtand accepted by his Club and the racingindustry. Crockett, the Chairmanof the Moonee Valley Racing Club BillStutt, and the CEO Ian McEwan, weretogether responsible for the promotionand advancement of the “Cox Plate” asthe leading “weight for age” horse race inthe southern hemisphere. Bill was proudto have his work at his Club honoured andacknowledged by the “William CrockettStakes”. When Crockett was awarded therank of the Order of Australia in 1987, thecitation read “For service to the law andhorse riding”. The error he never soughtto correct but I am sure it could be said inpart that he did give service to horse ridingas part of horse racing.I must recount a story told to me byhis family. Anne enjoyed horse racing andenjoyed a punt. One day when she wasnot accompanying Bill to the track shegave him money to invest on a trifecta.He forgot to do this and on realising thathe ascertained the “pay out”. On returninghome Anne asked him if he made theinvestment. “Of course I did”, he replied.Anne had her doubts and Bill was facedwith a good cross-examiner. She askedhim to present the tote ticket. It was thenthat he conceded that he had forgotten tomake the bet. Anne refused to have Billpay her, saying she would only receivepayment from the tote.One of Bill’s great pleasures was travellingwith Anne to Europe. They had a flatin London for some 12 years and each yearthey lived in London for a period of time.While diverting from recounting Crockett’sachievements in his life, I should recountthat when I was reading with Bill I saw andrealised that he had great admiration forhis former Master, Sir Gregory Gowans,whom Crockett acknowledged, had agreat encyclopaedic knowledge of thelaw. Crockett’s secretary’s husband waskilled when struck by the rotor blade of ahelicopter. I drew the Statement of Claimand Bill settled it. The trial on the issuesof liability and damages took place beforeGowans J and a jury. Crockett opened thecase to the jury, following which Gowanssent the jury out. Gowans enquired as towhy the case was being put in negligencewhen in the admitted circumstances theissue of liability was absolute under theWrongs Act (Damage by Aircraft) provisions.I was in trouble being confrontedwith why I had not pleaded the case thatway. I was not assisted by reminding Billthat he had settled the Statement ofClaim. He did not enjoy being caught outby his former Master. However, Crocketthad his victory later. I was being led byhim before the Full Court. Gowans J wasin the lefthand chair. Phil Opus QC wasaddressing the Court on behalf of theappellant and made a statement as tothe tax law. Gowans in his classic acerbicstyle said, “That is not correct.” Crockettsaid to me that he thought Phil Opus wascorrect. I could not assist but I was dispatchedto the library to look at the point.I found that Opus was correct and broughtback to the Court a textbook pointing outthe relevant paragraph to Crockett. Wewere being watched by Gowans. Crockettquietly handed the book to Opus and suggestedhe read the marked paragraph.Opus then said, “Your Honour Mr JusticeGowans, I am like the clock that stopped, Imust be right twice the day.” He then readthe paragraph to the Court. Gowans wasfurious, not at Opus but at Crockett andmyself, as he knew what had happened.Crockett was appointed to the SupremeCourt in December 1969 on the death ofSir John Barry. Crockett was 45 years ofage. At that time a veteran law reporterwrote of Crockett, “A first class trial lawyer.From the moment he arrives in court21

he gives the air of a man in charge of thesituation.” This was true. He was a firstclass trial and appellate judge and alwaysin his court was in charge of the situation.At the outset of his judicial career hisefficiency and desire to analyse the issuesquickly and get on with the matter causedsome counsel to consider him rather“prickly”. That soon settled.At the time of his appointment a memberof the common law Bar and who hadfrequently appeared against Crockett wasJohn Mornane. Mornane would do almostanything to get an early brief before a newjudge conducting a jury trial. This was tothe disquiet of a number of new judgeswhose practices at the Bar had been thatof equity lawyers. In an early trial beforeCrockett and a jury, and while counselfor the plaintiff was addressing the jury,Mornane in a voice which could be clearlyheard said that he had made a note of acomment of his opponent as being “dishonest”.Crockett immediately sat downcounsel for the plaintiff and told Mornaneto stand. He then said to him that if therewas one more interruption from himLL.D for Crockett JReprinted from Summer 1995 Victorian Bar NewsIN September this year one of the greatcommon law judges of the VictorianSupreme Court “Bill” Crockett wasawarded the degree of LL.D. (HonorisCausa) by the University of Melbourne.This recognition of his Honour’s serviceto the law and the outstanding rolewhich he has played on the SupremeCourt is richly deserved.The editors are delighted to printbelow the address which his Honourgave to the graduates on that day.A great English barrister F.E. Smithwas a famous orator. He became LordChancellor as Lord Birkenhead. All lawgraduates will have heard of him — atleast I hope they have. His services as aspeaker were difficult to obtain. An oldfriend, the headmaster of a great school,managed to procure him as occasionalorator to speak at the school’s annualspeech night. Birkenhead, who was avery prickly fellow, expected to speakearly and then get away. However, hewas forced to sit through the lengthyprocess of the award of prizes, schoolreports and so on to his mountingchagrin and his perceptibly lesseningpatience. At last the headmasterannounced: “And now Lord Birkenheadwill give you his address.” The LordChancellor strode to the lectern andsnapped, “22 Picadilly, London, SE2”,turned on his heel and departed.I wondered whether I might employthe same tactic. After mature considerationI thought not.First of all, Chancellor, may I say howgreatly honoured I am by the Universityand Council by the conferment upon metoday of the degree of Doctor of Lawshonoris causa. I am, of course, awarethat that degree is one of the most prestigiousawards which is within the gift ofthe University to bestow.I am also most beholden to Councilfor the generosity of the sentimentsexpressed in the citation given insupport of the award. May I just addthat I am particularly delighted that theaward in recognition of any contributionI may have made to the law has comefrom my own university.Next, may I congratulate all thosewho have graduated today and particularlythose who are taking out their firstdegree. My bachelor’s degree was conferredjust half a century ago, I think tothis very month. I am afraid that aftersuch a lapse of time which has broughtme close to God’s “use-by date” that Irecall nothing of the event itself. However,it must be so as the Universityof Melbourne Law Society has on thebasis of alumni records recently mademe an honorary life member in recognitionof the fact. That conferment was,of course, held on this site but in thatgreat example of Australian bluestonegothic, the old Wilson Hall, which waslater destroyed by fire. However, I doremember the great relief it was to havefinally reached the end of my immediatetertiary education.I am sure you, too, are feeling thatsense of relief that the grind of endlessstudy is — at least for most of you — atan end.I know I felt then, and I hope youfeel now, a sense of indebtedness tothe University which has given you theopportunity to acquire knowledge and,perhaps more importantly, the thirst tocontinue to do so. You can now call theUniversity of Melbourne your universityand speak of it with pride as the greatteaching institution which it is and ofwhich you and I have been privilegedto be a part.If the opportunity arises to repayin some measure that debt, do not failto accept it. I must confess I have feltguilty in the past of doing too little torepay the University for what it didfor me. I tutored the correspondencestudents, participated in a few mootsand for some years undertook the taskof correcting the examination papers ofProfessor Zelman Cowan’s students asto which incidentally if there is a moredreary way of earning a dollar I have yetto hear of it.It was much later, when I was asenior judge, that I realised that I hadin fact been doing rather more for theUniversity than I thought had been thecase. That was work done as assessorfor the Governor of the day in his capacityas Visitor to the University. BeingVisitor does not mean that Mr McGarviemay call socially on the Vice-Chancellorfor a sherry or two. The term has a technicalmeaning and the office itself is oneof ancient lineage.Perhaps a brief description of it maybe of some interest to you.In the Middle Ages what were tobecome great university colleges or hospitalsin England were founded by thehigh and mighty. They might be membersof the Royal Family, aristocrats orsenior churchmen but always they werepersons of great wealth. That wealthwas needed to establish the institutionin question. It was a kind of medievalequivalent of today’s “every gift over$2 is tax deductible”. At all events, thefounder originally had the right to visitto see how his money was being spentand how his heirs were being deprivedof their inheritance. It is a commonlyheld belief that that right had becomeobsolete by the 19th century unlessexpress statutory provision for its existencehas been made.Indeed, real doubts existed until relativelyrecently as to whether the principalright that had for centuries been22

he would discharge the jury on his ownmotion and order Mornane to pay thecosts of the trial. Not another word washeard from counsel for the defendant.Justice Crockett served on theSupreme Court for 26 years retiring on16 April 1996. The last 10 years on theBench saw Crockett as the senior puisnejudge. Sir John Young, when I spoke tohim last week, and who told me that it wasa great sadness that he could not be heretoday as he is recovering from a fracturedleg, referred to Crockett as being a judgewho was seen to be the strength of theCourt. That he was. He was a fine man,an extremely hard worker, he had a quickdecisive intellect and as a judge whenapplying the law was compassionate.I add a postscript, I have delivered thiseulogy from prepared notes. Why do I tellyou this? After delivering the eulogy followingthe death of Louise, the old readerspoke to his Master and enquired whetherhe was content with what I had said. Hereplied by saying, “It was good that youhad prepared some notes.”exercised by visitors may not also havefallen into desuetude. That right wasone enabling members of the institutionto bring their disputes to the Visitorfor resolution. Those doubts are nowwell and truly laid to rest. The office ofVisitor is one created by the commonlaw. The common law recognised thatthe Visitor had not only jurisdictionto entertain disputes but the power toenforce his rulings.Indeed, the Visitor has exclusivejurisdiction over questions arising fromthe interpretation, application andobservance of the laws of the foundation.If no Visitor should be appointed then,in the case of a university built frompublic funds, the Crown is its Visitor.There is, as I have indicated, no doubtnow that the Visitor’s dispute resolutionjurisdiction is anything but obsolete. Ithas in the past 40 or 50 years undergonesomething of a renascence both inAustralia and England from whence ofcourse it derives. Indeed, visitations inall jurisdictions have become a growthindustry. The earliest Visitor of which Iam aware was Geoffrey De Merton whofounded Merton College Oxford in about1384. Visitors were mostly members ofRoyalty. They were best positioned tomake wealthy endowments. However,the practice has continued long pastthe days of personal endowments formembers of the Royal Family in Britainand even the Privy Council to hold theoffice.That is not much help to us inVictoria. Yet the Royalty connection hasbeen maintained. Each of the universitiesin this State is set up by its ownAct of Parliament. Each university is acorporation. By each Act the Governorof the day is appointed Visitor to theUniversity. Petitions to the Governor areby no means infrequent. But the viewtaken here — and in the other States —is that a vice-regal representative cannotembroil himself in political or otherdisputation. Like the monarch whomhe represents he or she must standabove all that and preserve strict neutrality.How then was the petition to be dealtwith? That did not bother the commonlaw one little bit. It invented the notionof the regal or vice-regal personageacting through an assessor who hearsand determines the petition. He thenwrites a judgment in the name of theGovernor who by convention signs itand thus adopts it as his own. He getsall the credit for his Solomonesque judgmentwhile the assessor gets all the hardwork. The part played by the Visitor’sassessor is, I think, very akin to that ofthe writer of the speech prepared by theGovernment for the Governor to readwhen he opens Parliament. Everyoneknows the statements made in it are notnecessarily the Governor’s own opinion.Indeed, the contrary may be true but heis required by constitutional conventionto utter the words.You will have guessed by now thatthe assessor has invariably been — inthis State at least — either the ChiefJustice or his senior puisne judge. Andthat is how I have found myself fromtime to time for some years hearing petitionsfrom members of the major Stateuniversities. One comfort to an assessoris that there is no right of appeal froma determination. Nor will the assessorsubstitute his discretion for one properlyexercised by a university officer inwhom is vested discretionary powers.This includes the power to pass or fail astudent upon examination.The principal complaint of petitionersconcerning such matters as assessmentof a student’s scholastic work,admission to a course, admission to adegree etc. is that an adverse ruling wasgiven with the petitioner having had noopportunity to be heard. That is, theallegation is one of procedural unfairness— or what used to be called breachof the requirements of natural justice.Then, differences arise over the interpretationof the University’s statutesor agreements made under them suchas, for instance, those which affect staffmembers’ pension rights.Suggestions that the jurisdiction isanachronistic and should be abolishedare made from time to time but itsgreat advantages of informality, privacy,cheapness and expedition are likely tolead to its preservation for many yearsyet.An English judge recently defined thevisitorial jurisdiction in these words:My final conclusion, therefore, is thatthe visitor’s role cannot properly becharacterised either as supervisory orappellate. It has no exact analogy withthat of the courts. It cannot usefully bedefined beyond saying that the visitorhas untrammelled power to investigateand right wrongs arising from the applicationof the domestic laws of a charitablefoundation.I should, I think, say no more onthe subject, otherwise I might seem tobe touting for business or encouragingmembers of the University Corporationto bring suit against the University.Again I congratulate the graduates,express the hope that you all have asuccessful and enjoyable professionalcareer and present my felicitations tothe relatives and friends (includingmy own) who have attended here thismorning so full of pride at the scholarlyachievements of their kinsmen and kinswomen.23

News and ViewsFarewell to His Honour Mr JuOn the occasion of his retirement from the Court of Appeal of the SupremeCourt of Victoria delivered on Thursday 22 February 2007In a recent admissions ceremony yourHonour referred to the book commonlycalled the Politics in which Aristotledescribes law as “a kind of justice”:Law is not perfect justice. It is only a kindof justice. It is a fallible, human project, apractical means by which we are to do ourbest, in the circumstances of real life, toachieve justice.On this day in which your Honour isfarewelled as a judge by the legal professionand the State of Victoria, no one coulddoubt that you have dedicated 37 years ofservice to the law (including 11 years as aJudge of Appeal of the Supreme Court) todoing your best, in the circumstances ofreal life, to achieve justice.On behalf of the Attorney-General, mayI express his gratitude, and the gratitudeof the State of Victoria, for your Honour’sextended and devoted service to theadministration of justice in this State onthe occasion of your Honour’s retirementfrom the Supreme Court.Your Honour was born in Sydney on10 November 1945, and in your infantyears your family moved to Melbourne.Your Honour attended MelbourneChurch of England Grammar School(now Melbourne Grammar School)from 1958 to 1964. During your time atMelbourne Grammar, you were awardeda Wadhurst entrance scholarship, a JuniorGovernment Scholarship, and a SeniorGovernment Scholarship. You matriculatedwith Special Exhibitions in Latin andFrench, a General Exhibition and a TrinityCollege Exhibition. The following year,when, in Melbourne Grammar custom,you repeated Matriculation, you obtainedfour first-class honours as well as beingBruce House Captain, Prefect, schoollibrarian and a Cadet under officer.These achievements aside, your fellowstudents at Melbourne Grammar recallthat from your very first day it was clearto them that they were in the presenceof an exceptional intellect. One friend24His Honour Mr Justice Callaway.remembers that in your first English class,your teacher gave all of the students fiveminutes’ free time to do whatever theywished. To their surprise, at the end of thefive minutes, she asked what each studenthad been doing. One student reported that

stice Frank Hortin Callawayhe had been looking forward to play-timeand another was considering the merits ofhis favorite ice-cream. When it came toyour Honour’s turn, you announced thatyou had spent your five minutes readingthe dictionary. This confirmed to your fellowstudents that instinctively you werea scholar. Although you left MelbourneGrammar at the end of 1964, you havemaintained your affiliation with it.Your practice was initiallyin those areas in which youhad significant experience,mainly commercial andequity matters, restrictivetrade practices law,administrative law,constitutional law andtaxation.Your Honour’s academic success continuedwith the completion of a first-classHonours Law degree at the University ofMelbourne, where your excellence wasrecognised by the award of the EJB NunnScholarship, the Robert Craig Exhibitionin Company Law and the Supreme CourtPrize. Your Honour was also activelyinvolved in student life throughout youruniversity career, becoming Book ReviewEditor of the Melbourne University LawReview in 1966 and Editor in 1967. YourHonour completed a Masters of Laws atthe University of Melbourne in 1974. Ageneration of company lawyers since thatdate have relied upon your Masters Thesis,supervised by Professor Harry Ford, andpublished in 1978, on the winding upof companies on the just and equitableground. Your Honour’s love of the powerand exactitude of language was evident inyour other work, Drafting Notes, whichI amongst hundreds at the Victorian Barhave used on a regular basis and which isused to train those studying at the Collegeof Law in New South Wales.Your Honour was articled to Mr ColinTrumble at Mallesons, and your admissionin April 1969 was moved by MrJames Merralls. You became a partnerof Mallesons after just five years at thefirm at the age of only 29. Perhaps prophetically,in anticipation of your futuredecisions appearing in the VictorianReports, you kept your advices inbound leather volumes. In 1977, you leftMallesons to read with Mr Ross Sundbergand you signed the Bar Roll on 21 July1977.Your practice was initially in thoseareas in which you had significant experience,mainly commercial and equitymatters, restrictive trade practices law,administrative law, constitutional law andtaxation. Just as your Honour had accumulatedaccolades at Melbourne GrammarSchool, the University of Melbourne andMallesons, you were quick to establishan excellent reputation at the Bar. Onecolleague described your submissions asinvariably directly on point, incisive, clearand without a word wasted. Certainly thisdid not go unnoticed by other counsel,even those as eminent as Michael McHughQC. In an action brought under the TradePractices Act 1974 (Cth) in relationto an alleged anti-competitive arrangementmade between bakers of bread inthe ACT, TPC v George Weston Foods, 1your Honour, as a junior of three years’call appearing for two of the defendants,argued for judgment in their favour on theground that there was no case to answer.Legend has it that when your Honour hadcompleted your submissions, MichaelMcHugh stood up and declared: “I adopteverything my learned friend has justsaid.”Later that same year, you appeared,unled, before the Judicial Committee ofthe Privy Council in Coachcraft Ltd v SVPFruit Co Ltd. 2 This was a challenge to thevalidity of a special resolution passed atan extraordinary general meeting of therespondent company. On that occasion,the Privy Council was persuaded byyour worthy opponent, Stephen CharlesQC, (later a fellow Justice of Appeal ofthis Court). That persuasion did notoccur, however, without the recognitionby Lord Wilberforce that the “argumentwas attractively put by Mr Callaway forthe appellant”. 3 You returned to the PrivyCouncil some years later to succeed in amining royalties dispute in HamersleyIron Pty Ltd v National Mutual LifeAssociation of A/Asia Ltd. 4By this point in your career, you hada well-established reputation for perfectionism.You would never take work ifthere was the remotest chance of a clash.You were always fastidiously prepared,whether this involved completing submissionsthree weeks before they weredue, or, as rumour would have it, on theadvice of Mr Jack Winneke allegedly having10 quid at the ready to slip to the PrivyCouncil librarian so as to gain access to allthe necessary library materials.There was only time for you to haveone reader, Albert Monichino, before youwere appointed Queen’s Counsel in 1987— not only in Victoria, but also Tasmaniaand Western Australia. From then on youlet it be known that you would only betaking appellate work. Some thought thatsuch a bold step could mean professionalsuicide for any barrister, but your practicethrived, both in Victoria and interstate.There was only time foryou to have one reader,Albert Monichino, beforeyou were appointedQueen’s Counsel in 1987— not only in Victoria, butalso Tasmania and WesternAustralia.25

Soon thereafter you also took silk inNSW, 5 South Australia 6 and New Zealand. 7During this time, you appeared regularlybefore the High Court of Australia, onone occasion opposed to Jim MerrallsQC in Brown v West 8 on the limits of thepower of the Executive. You appeared inthe High Court on a matter involving theconstruction of the expression a “proprietarymaritime claim” within the meaningof the Admiralty Act 1988 (Cth) 9 and inthe Constitutional case of Re Tracey: ExParte Ryan, 10 where the Court acceptedyour Honour’s argument that the powerexercised by service tribunals stands outsideChapter III of the Constitution.Your Honour also appeared in immigrationmatters 11 and in matters involving taxationlaw, including Coles Myer FinanceLimited v Federal Commissioner ofTaxation. 12 Such as it was, when theVictorian Court of Appeal was created in1994, you were perfectly placed for theState of Victoria to recognise your specialistadvocacy, and appoint you to theappellate Bench.Upon your appointment, the Bar saidthat it looked “forward to receiving thebenefit of [your] Honour’s clarity and pithinessin previously clouded areas of law”. 13That expectation has been rewarded. Yourcivil law decisions are highly regarded fortheir lucidity and intellectual rigour andhave been approved by the High Court.Most recently, in Stingel v Clark, 14 concernedas it was with limitation periods onproceedings for intentional trespass to theperson, Gleeson CJ, and Callinan, Heydonand Crennan JJ, preferred your dissentingjudgment in the Court of Appeal as “thebetter view”. 15 They went on to permit discretionaryextensions of time by applyingthe earlier decision of Mason v Mason, 16in which you gave the leading judgment.Your Honour’s learned judgment on lettersof credit in Fletcher Constructionv Varnsdorf 17 and on the construction ofthe provisions of the Corporations Act2001 (Cth) designed to avoid constitutionalinconsistency in Tat Sang Loo vDirector of Public Prosecutions 18 areamongst my personal favourites, despitemy being on the wrong side.Your greatest contribution from theBench, however, has been your significantcontribution to Victorian criminallaw, where it has been said that you have“brought order to chaos”. Your decisionsspan the breadth of the criminal law process.Your decision in R v Best 19 is the leadingVictorian authority to date on similarfact evidence and the first comprehensiveCourt of Appeal interpretation of s.398A26of the Crimes Act. Your decision in R vTJB 20 is the standing authority on theseverance of presentments in relation tosexual offences. The process of grantingleave to appeal against convictions wherea plea of guilty has been recorded butwhere the accused could not lawfully beYour associates areunanimous in viewing youas their “professionalideal”. They all recognisedthat you are a deeplycompassionate judgewhose justice was alwaystempered by the plight ofthose who came beforeyou.convicted is guided by your judgment in Rv Tait 21 and you have also provided standardprinciples in relation to jury directionsin R v Kotzman. 22 The manner in whichthe Office of Public Prosecutions draftspresentments has now changed under theguidance of your decision in R v Coffey. 23I understand that within the Court, youhave established a “Red Book” of principalsentencing cases 24 from the Court ofAppeal, which over many years you andyour associates have updated and circulatedto all members of the Court. I amtold that this Book has been so successfulthat it is now in its second edition as theBlue Book.It is clear from all of this that yourHonour has been at the forefront ofVictoria’s developing jurisprudence andhas never shied from this task. Just lastSeptember, your Honour handed downyour decision in TSL v Secretary tothe Department of Justice 25 which wasone of the first decisions to engage withVictoria’s new Charter of Human Rightsand Responsibilities. Your Honour wasrequired to construe the word “likely”in s.11 of the Serious Sex OffendersMonitoring Act 2005 (Vic). Section 11refers to a medical expert’s assessmentof the likelihood of serious sex offendersre-offending. Your Honour, whileacknowledging that the Charter is not yetwholly in force, drew from the recognitionin the Charter that a human rightmay only be subject to such limitationsas can be demonstrably justified in a freeand democratic society, to observe that“the nature of our society is a legitimatefactor to take into account in construing… legislation”. 26 This will no doubt be animportant first step in the judicial considerationof the Charter. While other jurisdictionssuch as the United Kingdom, NewZealand and Canada have well-establishedjurisprudence on human rights laws, thisis a novel area for Victorian courts and weare sad to think that we will not have morejudgments from your Honour to guide usas you have guided us in the past.Your associates are unanimous in viewingyou as their “professional ideal”. Theyall recognised that you are a deeply compassionatejudge whose justice was alwaystempered by the plight of those who camebefore you. Former President Winneke isknown to refer to your “nose for injustice”.There is no doubt, however, that you arenonetheless shrewd in judgment, perhapsbest illustrated in your own words fromR v Bernath where you surmised that“(t)his was not a case of the serpent’sbeguiling or of a trap for the unwary innocentas opposed to a trap for the unwarycriminal”. 27When Albert Monichino finished readingwith your Honour, you gave him a bookof The History of the PeloponnesianWar by Thucydides and inscribed in it:“There is more to life than law.” Now thatyour Honour is retiring you will have moretime to spend on your vast array of interestsoutside the law. Your Honour is widelyread and cultured, and has interests in allthings ancient, classic, linguistic, militaryand travel-related. These interestsare active pursuits. You speak severallanguages fluently and are not averse tocompleting intensive summer courses atuniversities around the world. All evidencesuggests that you will completemany more adventures abroad, returningregularly to bestow upon your many godchildrenfurther gifts of illustrated classicalworks in ancient Greek.Your Honour can retire from the Benchproud in the knowledge that your careerhas been characterized by excellence,dedication, compassion, and generosity,and that you have made significant contributionsto the clarity and substanceof the law of Victoria, most particularlyin criminal law, where all those who willcome before the courts, be they lawyers,jurors, victims or defendants, will have thebenefit of your judgments.On behalf of the State of Victoria, mayI extend to your Honour the warmest offarewells and very best wishes for yourretirement.

Notes1. Trade Practices Commission v GeorgeWeston Foods Ltd (No. 2) (1980) 43 FLR55.2. (1980) 28 ALR 319.3. Coachcraft Ltd v SVP Fruit Co Ltd (1980)28 ALR 319, 327.4. (1985) 60 ALJR 70; 64 ALR 19.5. 1988.6. 1990.7. 1994.8. (1990) 169 CLR 195.9. The Owners of the Ship Shin Kobe Maruv Empire Shipping Company Inc (1994)181 CLR 404.10. (1989) 166 CLR 518.11. For example, Chan v Minister for Immigrationand Ethnic Affairs (1989) 169CLR 379.12. (1993) 176 CLR 640.13. William Gillies, “Justice of Appeal Callaway”(1995) 93 Vic Bar News 37.14. (2006) 228 ALR 229.15. (2006) 228 ALR 229, 238. Warren CJexpressed a dissenting view, similar interms to that of Callaway JA, which alsofound favour with the High Court.16. [1997] 1 VR 325.17. [1998] 3 VR 812.18. [2005] VSCA 161 (Unreported, VictorianCourt of Appeal, Winneke P, Charles JA,Callaway JA, 29 June 2005).19. [1998] 4 VR 603.20. [1998] 4 VR 621.21. [1996] 1 VR 662.22. [1999] 2 VR 123.23. [2003] 6 VR 543.24. Including, for example, R v Bernath [1997]1 VR 271 (used as authority for the propositionthat appeal judges must be carefulnot to exceed their jurisdiction whenassessing what weight sentencing judgesshould put on particular aggravating andmitigating factors); R v VZ [1998] 7 VR693; R v Tran (2002) 4 VR 457.25. [2006] VSCA 199 (Unreported, VictorianCourt of Appeal, Callaway Acting President,Buchanan JA, Coldrey AJA, 29 September2006).26. [2006] VSCA 199, [15].27. [1997] 1 VR 271, 277.27

Farewell Speech by The Honourable JusticSolicitor-General, Mr Shand,Mr Provis, learned counsel,ladies and gentlemen. I thankthose who have spoken for theirundeservedly kind remarksabout my work as a judge andfor their good wishes. I thankyou all for your attendancethis afternoon.THE administration of justice is acollective endeavour. It is not onlythe responsibility of judges, butalso of the profession, and the judgescould not perform their own role withoutthe support of their staff. In my case, Ihave been particularly well served by myassociates, secretaries and tipstaves andassisted, too, by the staff of other judges,of the Court and of VGRS. I am trulygrateful to them all.Even with all that support, particularlyin recent years I have found thework to be very burdensome. I makeno complaint: it “comes with the territory”.But I am now convinced thatthe State would be better served bythe appointment of someone younger,or at all events fresher, to the Court ofHis Honour Mr Justice Callaway.Appeal. That is one of the main reasons Ihave decided to retire at 61 rather than70.It is not because I regret acceptingappointment. I have never regrettedbeing a Supreme Court judge. My reasonsfor that are those expressed by SirEdmund Herring at the end of his speechin the Twelfth Court on 31 August 1964the day before he retired as Chief Justice.(The relevant passage is quoted in StuartSayers’ biography at pages 340–341 andreported in the opening pages of [1964]V.R. at 47. I leave you to read it for yourselves.)And now the time has come for me to laydown my office, but before I do so there aretwo matters to which I feel bound to drawattention. The first is this, that under theAustralian constitution the great commonlaw courts of Australia are the SupremeCourts of the States. Federal Parliamenthas no power to set up common law courtsand so it is that to the Supreme Courts ofthe States the citizen must continue tolook for protection from illegal arrest andother encroachments upon his liberty. It isto these Courts that he must come for awrit of habeas corpus. These Courts andtheir prestige must therefore, at all costsbe sustained so that they will continue toattract the finest characters and the bestlegal brains that we can produce. As acommunity we will pay heavily if we allowour Supreme Court to be relegated to aposition of inferiority.The second matter I feel I should mentionis that the principle of the independenceof the judiciary from the executive isQUEENSLAND ENVIRONMENTAL LAWASSOCIATION INC.ANNUAL CONFERENCE16 TO 18 MAY 2007'Your System or Mine'Keynote Speaker: Tim Flannery2007 Australian of the YearConference content includes:- Comparative analysis of the planning & environment regulatory regimes inQld, Vic and NSW- Keynote judges session with specialist judges from the 3 jurisdictions andmuch more.Contact QELAs office on 07 3832 4865,email info@qela.com.au or visitwww.qela.com.au.Peppers Salt Resort & SpaKingscliff, northern NSW28

e Callawayfundamental to our freedom. What happenswhen this principle is departed fromis evident from what is going on in manylands today. We must see to it that our citizensall understand that an independentjudiciary is the greatest bulwark of theirliberties and their best defence againsttotalitarian rule ...Everyone asks me what Iam going to do ... I shallreturn to my first loves:history and philosophyand those aspects ofhuman experience that,even now, are bestexpressed in religiouslanguage.Nor have I regretted the quantity ofour criminal work. What is more important,I ask rhetorically, than the protectionof the community and the liberty ofthe subject?The other main reason that I havedecided to retire is the decision of theHigh Court in Weiss v R. (2005) 80 ALJR444, 223 ALR 662. Much might be saidagainst that decision without disrespectto the High Court. I confine myself to onepoint. Their Honours’ construction ofthe proviso amounts to this: a trial miscarriesthrough no fault of the accused,his grounds are meritorious and theyare upheld by the Court of Appeal; buthe is denied a retrial because three, orperhaps only two, judges of appeal aresatisfied that he is guilty. As a very experiencedcriminal judge said to me lastyear, it amounts to saying to an appellant,“You have not had a proper trial andyou are not going to.”Sir Edmund Herring referred, amongother things, to the importance of anindependent judiciary. Trial by jury isof no less importance, not only as ameans of involving the community inthe criminal justice system but as aprotection of our liberties. The proviso,as previously understood for a longtime, applied only if the error at thetrial made no difference or conviction,by a jury, was inevitable. I find it hardto believe that the British Parliament,when it enacted the Criminal AppealAct 1907, or the Victorian Parliament,when it enacted the Criminal AppealAct 1914, intended such a departurefrom our legal norms as Weiss v R.decides.When the House of Lords decidedDirector of Public Prosecutions v Smith[1961] AC 290, Sir Owen Dixon said thatit contained propositions that he couldnever bring himself to accept. For thatreason, in Parker v R. (1963) 111 CLR610 at 632, the High Court declared itsindependence from the House of Lords.Weiss v R. contains propositions that Icould never bring myself to accept, butI cannot declare my independence fromthe High Court.Everyone asks me what I am goingto do. At least initially, in the words ofsomeone I met when I was on holidaylast year, I intend to do retirement andI intend to do it very well. Again like SirOwen Dixon, I shall not be reading thelaw reports. I shall return to my firstloves: history and philosophy and thoseaspects of human experience that, evennow, are best expressed in religious language.I end as I began, by thanking youall for your support over these last 12years and for your attendance this afternoon. 29

News and ViewsWelcome to Brigadier The HonTracey RFDAt his swearing-in as DJAG-ARMY before the Honourable JuCourt on 20 February 2007Delivered By Brigadier Ian Westwood AM Chief Judge AdvocateMay it please the Court.It is a testament to yourHonour, and the service that youhave unstintingly given over many years,that today’s ceremony is conducted in thisceremonial court by the Chief Justice andin the presence of many distinguishedguests from both the law and the services.These include your wife Hillary, your family,the Honourable Justice Frank Callawayof the Victorian Court of Appeal and lateof the AALC, the Honourable JusticeLander from your Honour’s own court,Commodore His Honour Judge Tim Wood,the Deputy Judge Advocate General Navy,Major General Greg Garde, Air CommodoreAndrew Kirkham, a former Deputy JudgeAdvocate General Air Force, Captain PaulWillee, former Head of the Military Bar,senior Navy, Army and Air Force officersand fellow members of the Defence legalfraternity.Your Honour graduated Bachelor ofLaws with Honours from the University ofMelbourne in 1969. This was followed by anumber of years in academe and includedpost-graduate qualifications from both theUniversity of Melbourne and the Universityof Illinois. It was during this period of yourHonour’s career that you volunteered formilitary service in the Australian ArmyLegal Corps as a Reserve officer.Your Honour’s subsequent attainmentsand success, in both the broader legalprofession and within the legal corps, area reflection upon your Honour’s capacityfor work and the intellectual rigourbrought to it. Within the broader profession,your Honour took silk in 1991, andwas appointed to the Federal Court ofAustralia in 2006.So far as your Honour’s military serviceis concerned, you were one of the initialWelcome To Brig. The Honourable Justice R.R.S. . Tracey RFD.appointments to the panels for judgeadvocates and Defence Force magistratesestablished when the Defence ForceDiscipline Act commenced in 1986. It wasfrom these early days that your Honourbecame the subject of enduring militaryfame by being the subject of the firstConstitutional challenge to the validityof the Defence Force Discipline Act inthe matter of re Tracey; ex parte Ryan(1989) 166 CLR 518. Fortunately for themilitary careers of many in court today,this challenge was unsuccessful.Notwithstanding the demands of yourHonour’s practice over the years, youalways found the time for Reserve service.30

ourable Justice R.R.S.stice Michael Black AC, the Chief Justice of the FederalHonourable Justice Black andBrigadier The Honourable JusticeR.R.S. Tracey RFD.This included a preparedness, invariablyat short notice, to spend your Christmasvacations reading the proceedings of theBlackhawk and other significant boards ofinquiry with a view to reporting on theirlegal adequacy. This is indicative not onlyof the service that you have renderedover the years, but also of the supportand forbearance of Hillary and your familyin accommodating the demands ofboth your practice and your military service.It did occur to me that these demandsmust have take their toll because I understandthat on a recent flight from Darwinafter attending to Defence business, whenthe steward proffered a hot towel, yourHonour somewhat optimistically misheard“cocktail” and indicated that you wouldhave a brandy and dry.As a deputy Judge Advocate General,your Honour will be required to providethe final binding legal advice in connectionwith the internal review processes.This will provide your Honour with aninsight into the workings of the summaryjustice system. I have no doubt that yourHonour’s tact and diplomacy will rise tothe occasion of gently correcting the commandingofficer who occasionally falls intolegal error. This is often unwitting, as inthe case of the Commanding Officer whowas asked to explain his understanding ofsatisfaction beyond reasonable doubt forthe purposes of a review of the proceedings.The officer indicated that he drewup a list of the elements of the offenceand placed a tick against an elementeach time the prosecution proved thepoint.Conversely, if the defence disproveda point, a cross was entered. At theend of the evidence, the commandingofficer added up the ticks and crossesfor each element. If the ticks outnumberedcrosses, then he was satisfiedas to that element beyond reasonabledoubt. It will be your Honour’s task toexplain that such logical and straightforwardapproaches are, of course, quitewrong. Ideally this will be achieved insuch a way that the Commanding Officerwrites a letter of thanks for the light thatyou will have shed upon his legal darkness.Similarly, the robust approach takento matters of procedure may providethe occasional challenge. There was, forinstance, the case where the accused wasdefending a charge of assault on a superiorofficer. At the end of the prosecutioncase, the commanding officer asked theregimental sergeant major if there wasany reason why the accused could notbe called as part of the prosecution case.On having been assured that there wasnot, the commanding officer called theaccused on his own motion and asked theone question, “Did you point your rifleat LT AB or not, answer yes or no.” Theaccused answered yes. It is possible thatrather like your Honour’s approach to thehot towel, that the accused was undulyoptimistic when he subsequently electedto make an unsworn statement as part ofthe defence case.On behalf of the Judge AdvocateGeneral, Major General The HonourableJustice Len Roberts-Smith, your comradesin the Services and the wider DefenceLegal Office, we congratulate your Honouron your appointment as the Deputy JudgeAdvocate General Army and the opportunitywhich this will afford you to continuethe service and contribution whichhave been hallmarks of your Honour’smany years in the Reserve Forces todate. We wish you well, and congratulateyou on your recent promotion toBrigadier.If the Court pleases.31

News and ViewsThe Problematic Proviso:The Vice of WeissPhillip Priest QC *IN his retirement speech on 22 February2007, Justice Callaway made it plainthat one of the factors motivating hisdecision to retire from the Court of Appealwas the High Court’s judgment in Weiss vThe Queen (2005) 80 ALJR 444; 223 ALR662; [2005] HCA 81.He is not alone in his expressed dismay.Weiss caused a shockwave to sweepthrough the ranks of criminal appellatelawyers and judges. The High Courtradically altered the ambit of the proviso,sweeping away decades of accepted wisdom.It is argued in this article that in reachingits conclusions in Weiss the High Courtignored many decisions of authority.Doubtful implications were drawn fromthe historical roots of the statutory formula.Indeed, the main premise underpinningthe High Court’s decision is dubious.The unfortunate result is that theapplication of the proviso is now fraughtwith unnecessary difficulty. For the sakeof intermediate appellate courts the HighCourt urgently needs to rethink Weiss.Before turning to the decision itself, itis necessary to examine the legislative andhistorical context in which the case fell tobe decided.32THE WORDS OF THE PROVISOWeiss was concerned with the proviso(venerably so called) found in s.568(1)of the Crimes Act 1958 (Vic.), whichprovides:(1) The Court of Appeal on any such appealagainst conviction shall allow the appealif it thinks that the verdict of the juryshould be set aside on the ground that itis unreasonable or cannot be supportedhaving regard to the evidence or that thejudgment of the court before which theappellant was convicted should be set*With thanks to Sarah Leighfield of the VictorianBar.Phillip Priest QC.aside on the ground of a wrong decisionof any question of law or that on anyground there was a miscarriage of justiceand in any other case shall dismiss theappeal:Provided that the Court of Appealmay, notwithstanding that it is ofopinion that the point raised in theappeal might be decided in favourof the appellant, dismiss the appealif it considers that no substantialmiscarriage of justice has actuallyoccurred. [Emphasis added.]The origins of the proviso in s.568(1)can be found in s.4(1) of the CriminalAppeal Act 1907 (UK). Its equivalent isto be found in the criminal appeal statutesof nearly all Australian States andTerritories. 1 There is a New Zealand 2 anda Canadian 3 equivalent.Three points concerning the structureof s.568(1) should be noted at the outset.First, on an appeal against conviction, theappellate court shall allow the appeal if itthinks:• the “verdict of the jury” should be setaside on the ground that it is “unreasonableor cannot be supported havingregard to the evidence”; or• the judgment of the court before whichthe appellant was convicted should beset aside on the ground of a “wrongdecision of any question of law”; or• that on any ground there was a “miscarriageof justice”.Secondly, if one of these grounds issatisfied, the proviso then comes intoplay. Thus, if the court is of the opinionthat the point raised in the appeal mightbe decided in favour of the appellant(presumably on the ground that there wasa “wrong decision of any question of law,or on any ground there was a miscarriageof justice),” it may dismiss the appeal ifsatisfied that “no substantial miscarriageof justice” has actually occurred. 4Thirdly, as a matter of logic — ifnothing else — the proviso can haveno application to the first ground uponwhich an appeal shall be allowed i.e. thatthe verdict of the jury is unreasonable orcannot be supported having regard to theevidence, since that is the statutory basisupon which jury verdicts are set aside as“unsafe and unsatisfactory” 5 . If a jury verdictfalls into that category, obviously itcannot be saved by the proviso. 6 However,as will be seen, the ratio of Weiss may, onone view, render this ground somewhatsuperfluous.INTERPRETATION OF THE PROVISOPRE-WEISSUntil Weiss, the analysis of Fullagar J inMraz v The Queen (1955) 93 CLR 493 at514 generally was regarded as the classicexposition of the operation of the proviso.He said:It is very well established that the provisoto s.6(1) [of the Criminal Appeal Act 1912(NSW)] does not mean that a convictedperson, on an appeal under the Act, must

show that he ought not to have been convictedof anything. It ought to be read, andit has in fact always been read, in the lightof the long tradition of the English criminallaw that every accused person is entitled toa trial in which the relevant law is correctlyexplained to the jury and the rules of procedureand evidence are strictly followed. Ifthere is any failure in any of these respects,and the appellant may thereby have losta chance which was fairly open to himof being acquitted, there is, in the eye ofthe law, a miscarriage of justice. Justice hasmiscarried in such cases, because the appellanthas not had what the law says that heshall have, and justice is justice according tolaw. It is for the Crown to make it clear thatthere is no real possibility that justice hasmiscarried. [Emphasis added.]Later cases in the High Court incrementallyadded to and explained thisformulation, but its essence seemed neverto be in doubt. Thus, for example, BarwickCJ in R v Storey (1978) 140 CLR 364 at376 spoke of “a real chance of acquittal”.He expressed the view:If error be present, whether it be by admissionor rejection of evidence, or of law orfact in direction to the jury, there remainsthe question whether none the less theaccused has really through that error orthose errors lost a real chance of acquittal.Put another way, the question remainswhether a jury of reasonable men, properlyinstructed and on such of the material asshould properly be before them, wouldhave failed to convict the accused: or werethe errors such that if they were removed areasonable jury might well have acquitted.[Emphasis added.]It was recognised that there may be circumstanceswhere, even if the jury wouldhave come to the same result despite theimpugned misdirection, the proviso couldnot be applied. Gibbs CJ (with whomStephen and Murphy JJ agreed) observedin Quartermaine v The Queen (1980)143 CLR 595 at 600–601:Ordinarily, when there has been a misdirectionof law, the proviso to s.689 [of the CriminalCode (WA)] will be applied if the Crownestablishes that if there had been no misdirectionthe jury would (or must) have cometo the same conclusion. However, WickhamJ, who delivered the judgment of the Courtof Criminal Appeal in the present case, recognizedthat even if this were established“there might still be a substantial miscarriageof justice if the trial was so irregularthat no proper trial had taken place”, in that“there had been a serious departure fromthe essential requirements of the law”. TheCourt of Criminal Appeal was right in takingthat view of the law ...In Wilde v The Queen (1988) 164 CLR365 at 372–373 this view was said to be“undoubtedly correct”:The question remainswhether a jury ofreasonable men, properlyinstructed and on suchof the material as shouldproperly be before them,would have failed toconvict the accused: orwere the errors such thatif they were removed areasonable jury might wellhave acquitted.[T]he proviso was not intended to provide,in effect, a retrial before the Courtof Criminal Appeal when the proceedingsbefore the primary court have so farmiscarried as hardly to be a trial at all. Itis one thing to apply the proviso to preventthe administration of the criminal law frombeing “plunged into outworn technicality”(the phrase of Barwick CJ in Driscoll vThe Queen (1977) 137 CLR 517 at 527);it is another to uphold a conviction after aproceeding which is fundamentally flawed,merely because the appeal court is of theopinion that on a proper trial the appellantwould inevitably have been convicted. Theproviso has no application where an irregularityhas occurred which is such a departurefrom the essential requirements of thelaw that it goes to the root of the proceedings.If that has occurred, then it can besaid, without considering the effect of theirregularity upon the jury’s verdict, that theaccused has not had a proper trial and thatthere has been a substantial miscarriage ofjustice. Errors of that kind may be so radicalor fundamental that by their very naturethey exclude the application of the proviso... [Emphasis added.]Later still, in Glennon v The Queen(1994) 179 CLR 1 at 8–9, 12–13, the HighCourt held of an impugned misdirectionthat where the misdirection is notfundamental, the appellate court mustbe satisfied that, in the absence of themisdirection, “the jury would inevitablyhave reached the same verdict”. Andin Grey v The Queen (2001) 75 ALJR1708; 184 ALR 593 at [25], Gleeson CJ,Gummow and Callinan JJ made it clearthat, where there has been a departurefrom the requirements of a properlyconducted trial, it cannot be said thatthere has been no substantial miscarriageof justice, unless an appropriately33

instructed jury (acting reasonably, andapplying the correct onus and standardof proof) would inevitably have convicted.7In relatively recent times, however,judicial uncertainty as to the meaning ofthe proviso has been expressed. As hasbeen noted above, the body of s.568(1)permits an appeal to be allowed if therebe a “miscarriage of justice”, whereas theproviso permits dismissal of an appeal ifthere be no “substantial miscarriage ofjustice”. The judicially perceived tensionbetween the body of the provision and theproviso has been the subject of a deal ofdiscussion, 8 culminating in Weiss.34WEISS IN THE COURT OF APPEALThe appeal to the High Court in Weisswas, so it seems, prompted by certainobservations of Callaway JA in the Courtof Appeal with respect to the correctapplication of the proviso.Before turning to those observations itis worthwhile briefly setting out the factualcontext in which they were made.The appellant, Bohdan Weiss, wasconvicted of the murder of Helen Grey. MsGrey was beaten to death on 24 November1994. At his trial, Jean Horstead, withwhom the appellant was living in 1994,was an important witness against him.She gave evidence that, on the night ofthe murder, the appellant had confessedto her that he had killed Ms Grey. She saidthat she had at first provided the appellantwith a false alibi. Some years later,however, after she had left the relationshipwith the appellant and moved toAmerica, she had decided to tell the truth.Evidence was led that, some time after MsGrey was murdered, the appellant formedand maintained a sexual relationship witha female other than Ms Horstead. Overobjection, the prosecution was permittedto adduce evidence in cross-examinationof the appellant that at the time he beganhis relationship with the other femaleshe was not yet 15 years old. (It was notdisputed on appeal that evidence of herage should not have been adduced.) Tomaintain a sexual relationship with a girlunder 16 years was a serious crime. Theprosecution did not later suggest thatmaintaining a sexual relationship with anunder-age female went to the appellant’scredit.In the Court of Appeal, the Court(Callaway and Batt JJA, and Harper AJA)unanimously held that the evidence of thefemale’s age should not have been admitted.Callaway JA (with whose reasonsthe other members of the Court agreed)held that her age was not relevant, that itcould not be led to bolster the credit of MsHorstead and that, if it did have any significantprobative value, it was outweighedby its prejudicial quality. The Court ofAppeal nonetheless dismissed the appellant’sappeal, holding that the proviso tos.568(1) of the Crimes Act 1958 applied.Following discussion of the state of theauthorities concerning the proviso and itsapplication, Callaway JA concluded that adistinction should be drawn between anappellate court asking whether, withoutthe wrongly admitted evidence, “the juryat the appellant’s trial” would inevitablyWeiss was a joint judgmentof six members of theHigh Court (Gleeson CJ,Gummow, Kirby, Hayne,Callinan and Heydon JJ).In the Court’s analysis,the root question was oneof statutory construction.The words of the statutegovern, not the variousjudicial attempts atinterpretation.have convicted him, and asking whether,without that evidence, “any reasonablejury”, properly instructed, would inevitablyhave convicted him. On the formertest (the “this jury” test) Callaway JAconcluded that the appellant’s convictionwas inevitable; on the latter test (the “anyreasonable jury” test) he was of the opinionthat it could not be said that the appellant’sconviction was inevitable.Given some earlier Victorian decisions,Callaway JA concluded that the relevanttest was the “this jury” test and that theappeal should be dismissed. He outlinedthe parameters of the debate as follows: 9Putting fundamental irregularity to oneside, there are two expressions that areused to describe cases where the provisodoes not apply. One expression refers tothe loss of a chance of acquittal, whether a“real chance” or a “chance which was fairlyopen”. The other expression is that theconviction of the appellant was inevitable.It is clear from the authorities that they aredifferent ways of expressing the same test. Ihave always proceeded on the basis that theproviso may be applied where the wrongdecision on a question of law or other irreg-ularity made no difference and that thatis all that is meant when it is said that anappellant’s conviction was inevitable. It was“inevitable” in the sense that this jurywould still have convicted the appellantin the absence of the irregularity, notthat he or she would have been convictedby any reasonable jury. In other words,I have not regarded the proviso as inapplicablesimply because, for reasons whollyunconnected with the wrong decision orother irregularity, a reasonable jury mighthave acquitted the appellant or confinedthe proviso to cases where a verdict ofacquittal would be perverse. I have adoptedmy customary approach in this case, believingit to be normal practice in this State, butI acknowledge that I have been troubled bysome statements of high authority. If thetest were inevitability, in the sense thatany reasonable jury properly instructedwould inevitably have reached the sameconclusion as this jury, I could not applythe proviso to this case. A new trial wouldhave to be directed. [Emphasis added; footnotesomitted.]With these words in mind it is timelyto consider the High Court’s treatment ofthe proviso on appeal from the Court ofAppeal’s judgment.THE “EXCHEQUER RULE”Weiss was a joint judgment of six membersof the High Court (Gleeson CJ, Gummow,Kirby, Hayne, Callinan and Heydon JJ). Inthe Court’s analysis, the root question wasone of statutory construction. The wordsof the statute govern, not the various judicialattempts at interpretation. Accordingto the Court, the task of construction wasnot to be accomplished “by simply takingthe text of the statute in one hand and adictionary in the other”. 10It was pointed out that the CriminalAppeal Act 1907 (UK), from which theproviso is drawn, was enacted againstthe backdrop of the Exchequer rule. 11 Incriminal cases the rule was stated as beingthat “if any bit of evidence not legallyadmissible, which might have affected theverdict, had gone to the jury, the partyagainst whom it was given was entitledto a new trial” 12 . Having regard to history,the High Court concluded that the provisocontained in s.4(1) of the 1907 Act wasintended to abolish the Exchequer rule. 13So much might be accepted.Moreover, the High Court thought thathistory and the Exchequer rule also shedlight on the drafting of the section. As wehave seen, s.568(1) of the Crimes Act

1958 provides that the Court of Appealshall allow an appeal against convictionif there is a “miscarriage of justice”; butmay dismiss the appeal if it considersthat no substantial miscarriage of justicehas actually occurred. Under the oldExchequer rule, “miscarriage of justice”was any departure from trial accordingto law, regardless of the nature orimportance of that departure. Accordingto the High Court’s analysis, the use ofthe words “substantial” and “actuallyoccurred” in the proviso were intendedto require the appellate court to considermatters “beyond the bare question ofwhether there had been any departurefrom applicable rules of evidence orprocedure” 14 . Again, so much may beaccepted.THE HIGH COURT’S ERROROnce the view is arrived at that theproviso was intended to require considerationof matters beyond the question ofwhether there had been a departure fromapplicable rules of evidence or procedure,the next question to arise is, what mattersare to be addressed in deciding whethera substantial miscarriage of justice hasactually occurred? The Court said: “Thequestion becomes, when is that interventionjustified?” And that, in turn, requiresexamination of when a court shouldconclude that “no substantial miscarriageof justice has actually occurred”. 15It is at this point that, with respect, theCourt fell into error.The Court made it plain that an appellatecourt is required to decide for itselfwhether a substantial miscarriage of justicehas actually occurred. To look to inevitabilityof result, or to a “fair” or “real chance ofacquittal”, and thus to look to what a jury(whether the trial jury or a hypotheticalreasonable jury) might have done is, in theHigh Court’s opinion, “to distract attentionfrom the statutory task as expressed bycriminal appeal statutes”. 16It might be accepted undoubtedlyas correct that an appellate court mustdecide for itself whether there has in agiven case been a substantial miscarriageof justice. The section requires no less. Ina breathtaking glide, however, and contraryto a long line of authority, the HighCourt concluded that the task of decidingwhether a substantial miscarriageof justice has actually occurred “is to beundertaken in the same way an appellatecourt decides whether the verdict of thejury should be set aside on the ground thatit is unreasonable, or cannot be supportedhaving regard to the evidence”. 17 Why thatis so is not expressed with any clarity, ifat all.Approaching the determination of themeaning of the proviso as one of statutoryconstruction, then it is submittedthat there simply is no justification forreading into the words of the section theimplication that the appellate court mustapproach the matter in the same way thatit decides whether the verdict of the juryshould be set aside on the ground that itis unreasonable, or cannot be supportedhaving regard to the evidence. Such animplication — if it is to be found — couldonly flow from the words “the Court ofAppeal may, notwithstanding that it is ofopinion that the point raised in the appealmight be decided in favour of the appellant,dismiss the appeal ‘if it considers thatno substantial miscarriage of justice hasactually occurred’”. Nothing in these barewords — even paying due regard to thehistorical underpinnings of the Exchequerrule — is capable of founding the approachnow dictated by the High Court.Indeed, the words of the statute pointthe other way. To approach the matterin the manner suggested by the Courtin Weiss is arguably to render the firstground for intervention by an appellatecourt found in the body of s 568(1) of theCrimes Act 1958 (and its equivalents)superfluous.THE “CURATIVE” CANADIANCRIMINAL CODEThe High Court does not appear to haveconsidered the position in Canada.In that country the proviso 18 isdescribed as “the curative provision”. It isregarded as placing a burden on the Crownto justify the denial of a new trial despitethe presence of error in the court fromwhich the appeal is brought. Satisfactionof the onus is a condition precedent to theapplication of the proviso. However, theproviso need not be applied even if theonus is met. 19 The question to be askedis whether the verdict would necessarilyhave been the same if the error had notoccurred. 20The leading case upon the applicationof the proviso in Canada is that of theSupreme Court of Canada in R v Khan[2001] 3 SCR 823; (2001) 160 CCC (3d).Arbour J (delivering the judgment ofMcLachlin C.J. and L’Heureux-Dubé,Gonthier, Major, Binnie and Arbour JJ)described the position as follows:[27] In every case, if the reviewing courtconcludes that the error, whetherprocedural or substantive, led to adenial of a fair trial, the court mayproperly characterize the matter asone where there was a miscarriage ofjustice. In that case, no remedial provisionis available and the appeal mustbe allowed. I will now examine thesepropositions in more detail.[28] This Court has enunciated on numerousoccasions the proper test for theapplication of the curative proviso (seeColpitts v The Queen [1965] SCR 739;Wildman v The Queen [1984] 2 SCR311; R. v B (FF) [1993] 1 SCR 697; R. vBevan [1993] 2 SCR 599). It can onlybe applied where there is no “reasonablepossibility that the verdictwould have been different had theerror ... not been made” (Bevan,supra, at p. 617).[29] The jurisprudence reveals that theproviso will generally be applied, inaccordance with the above principles,in two types of situations. A. W.Mewett has described the two possibleapproaches in “No Substantial Miscarriageof Justice”, in A. N. Doob and E.L. Greenspan, eds., Perspectives inCriminal Law (1985), 81, at p. 94:What we see are again two fundamentallydifferent views of theapplication of the proviso. Oneview proceeds on the basis of askingwhether, absent the error orwrongly admitted evidence, therest of the evidence is so overwhelmingas to make the outcomeof a retrial a virtual certainty; theother of asking whether, ignoringthe rest of the evidence, the jurymight have been influenced bythe error or the wrongly admittedevidence.On the one hand, appellatecourts will maintain a convictionin spite of the errors of law wheresuch errors were either minor inthemselves or had no effect on theverdict and caused no prejudice tothe accused. This accords with theoriginal purpose of the section, asdescribed early on by TaschereauJ., writing for the majority of thisCourt, in Chibok v The Queen(1956) 24 CR 354 at p. 359:It would indeed be a shockingimpediment to the properadministration of criminal justice,if criminals were allowed to go freebecause of a trivial error in lawor of an oversight of no materialconsequence. [Emphasis added.]As stated by Lamer CJ, for the Court, in R. vTran [1994] 2 SCR 951 at p. 1008, “[s]ection35

36686(1)(b)(iii) is designed to avoid thenecessity of setting aside a conviction forminor or ‘harmless’ errors of law wherethe Crown can establish that no substantialwrong or miscarriage of justice hasoccurred.”[30] The case law is replete with examplesof situations where either the trivialityof the error itself, or the lack ofprejudice caused by a more seriouserror of law, justified the applicationof the curative proviso. In all thosecases, the appellate courts wereconvinced that the error could havehad no effect on the verdict. Becauseof the nature of the errors and of theissues with respect to which they weremade, it was possible to trace theireffect on the verdict and ensure thatthey made no difference. Generally,the errors concerned evidence thatwas insignificant to the determinationof guilt or innocence or benefited theaccused by imposing a more onerousstandard on the Crown. Errors in thecharge to the jury respecting a veryminor aspect of the case that could nothave had any effect on the outcome orconcerning issues that the jury wasotherwise necessarily aware of werealso cured by the application of theproviso. Similarly, in some cases theerrors concerned preliminary findingsthat would nevertheless, as a matterof law, inevitably have resultedin the same finding made by the trialjudge.[31] In addition to cases where only a minorerror or an error with minor effects iscommitted, there is another class ofsituations in which s.686(1)(b)(iii)may be applied. This was described inthe case of R. v S (PL) [1991] 1 SCR909 at p. 916, where, after stating therule that an accused is entitled to anew trial or an acquittal if errors of laware made, Sopinka J. wrote:There is, however, an exceptionto this rule in a case in which theevidence is so overwhelming thata trier of fact would inevitablyconvict. In such circumstances,depriving the accused of a propertrial is justified on the ground thatthe deprivation is minimal whenthe invariable result would beanother conviction.Therefore, it is possible to apply thecurative proviso even in cases whereerrors are not minor and cannot besaid to have had only a minor effecton the trial, but only if it is clear thatthe evidence pointing to the guilt ofthe accused is so overwhelming thatany other verdict but a convictionwould be impossible. [Some citationsomitted; further emphasis added.]Thus it may be observed that theCanadian test seems to revolve aroundinevitability of result which, as we haveseen, is one of the matters which animatedCallaway JA’s judgment in the Court ofAppeal in Weiss. It is surprising that theHigh Court apparently paid no regard tothe entrenched Canadian position whenso revolutionising the application of theproviso for Australian courts.NEW ZEALAND COURTS REJECTWEISSWeiss has not been followed in NewZealand.In R v Sungsuwan [2006] 1 NZLR 730,two of the Judges of the Supreme Court,Elias CJ 21 and Tipping J, 22 considered thatthe New Zealand proviso 23 could properlybe applied in situations where the groundunder s.385(1)(b) (wrong decision on aquestion of law) had been made out.The approach in New Zealand is eitherthe “this jury” test or the “any reasonablejury” test. Thus in R v McI [1998] 1 NZLR696 Thomas J 24 said of the application ofthe proviso:In my view, it is clear Parliament did notwant convicted persons to go free or obtainthe benefit of a new trial on the basis ofan error of law or irregularity unless theerror or irregularity would have made adifference to the outcome ... The questiontherefore becomes; on the whole of theadmissible evidence, could a reasonablejury have failed to convict?... The necessaryconsequence of the proviso is that itis not every error of law or breach of therules of evidence or procedure which haveevolved to ensure a fair trial for an accusedwhich is necessarily fatal. Any such erroror irregularity needs to be material to theoutcome of the trial. Unless it is, no injusticehas been done. The impact of the factthe proviso has been enacted cannot beignored. In enacting it, Parliament clearlyindicated that it is not every lapse or breachof the rules of procedure or evidence, eventhough the lapse or breach may amount to amiscarriage of justice, which need result ina successful appeal. [Emphasis added.]And Tipping J 25 observed:[I]t is important to recognise that the Courtis not thereby invited to come to its ownview about whether the appellant was infact guilty of the crime or crimes alleged.Rather, the Court is required to assesswhether, without the error or deficienciesof process, the jury would still have convicted.It is what the jury would have donewithout the errors or deficiencies which isthe issue, not what the Court thinks of theultimate merits of the conviction. If, in spiteof the errors or deficiencies, the jury wouldhave convicted anyway, there can be noprejudice to the appellant from those errorsor deficiencies... [T]he test for applicationof the proviso should be framed as follows.Before the proviso may be applied,this Court must be sure that the jurywould without doubt have convicted hadthe matter or matters giving rise to theinitial miscarriage of justice not beenpresent. [Emphasis added.]In R v Howse [2003] 3 NZLR 767 at[45] the New Zealand Court of Appealendorsed these views. On appeal, thePrivy Council affirmed statements of thelaw in Australia (pre-Weiss) 26 to a similareffect and said the proviso applied only incases where the dismissal of the appealwould not countenance a “radical or fundamentalerror”. 27Weiss specifically was consideredby the Court of Appeal in R v Haig[2006] NZCA 226. 28 William Young Pand Chambers J said that “[d]espite theEnglish and Australian decisions to whichwe have referred, the weight of authorityin this jurisdiction is such that we think itappropriate to continue to apply the existingNew Zealand principles” .29HOW IS THE PROVISO NOW TO BEAPPLIED?As has been seen, Weiss now dictatesthat an appellate court is to approachthe application of the proviso in the sameway as it approaches a complaint that averdict is unsafe and unsatisfactory. Thisraises the question, what room is left forthe second and third grounds of s.568(1),which permit appellate intervention ifthe judgment of the court before whichthe appellant was convicted should beset aside on the ground of a wrong decisionof any question of law, or if on anyground there was a miscarriage of justice?To answer this question it is necessary todetermine for what Weiss stands.The following observations from Weisscontain the ratio:[41] [The statutory task of applying theproviso] is to be undertaken in thesame way an appellate court decideswhether the verdict of the jury

should be set aside on the groundthat it is unreasonable, or cannotbe supported having regard to theevidence. The appellate court mustmake its own independent assessmentof the evidence and determinewhether, making due allowance forthe “natural limitations” that existin the case of an appellate courtproceeding wholly or substantiallyon the record, the accused wasproved beyond reasonable doubt tobe guilty of the offence on which thejury returned its verdict of guilty.There will be cases, perhaps manycases, where those natural limitationsrequire the appellate court toconclude that it cannot reach thenecessary degree of satisfaction. Insuch a case the proviso would notapply…[42] It is neither right nor useful to attemptto lay down absolute rules or singulartests that are to be applied by anappellate court where it examinesthe record for itself, beyond the threefundamental propositions mentionedearlier … It is not useful to attemptthat task because to do so wouldlikely fail to take proper account ofthe very wide diversity of circumstancesin which the proviso falls forconsideration.[43] There are, however, some mattersto which particular attention shouldbe drawn. First, the appellate court’stask must be undertaken on the wholeof the record of the trial including thefact that the jury returned a guilty verdict… But there are cases in whichit would be possible to concludethat the error made at trial would,or at least should, have had no significancein determining the verdictthat was returned by the trial jury.The fact that the jury did return aguilty verdict cannot be discardedfrom the appellate court’s assessmentof the whole record of trial. Secondly,it is necessary always to keep two mattersat the forefront of consideration:the accusatorial character of criminaltrials such as the present and that thestandard of proof is beyond reasonabledoubt.[44] Next, the permissive language of theproviso (“the Court ... may, notwithstandingthat it is of opinion that thepoint raised in the appeal might bedecided in favour of the appellant,dismiss the appeal ...”) is important.So, too, is the way in which the conditionfor the exercise of that poweris expressed (“if it considers thatno substantial miscarriage of justicehas actually occurred”). No singleuniversally applicable descriptionof what constitutes “no substantialmiscarriage of justice” can be given.But one negative proposition maysafely be offered. It cannot be saidthat no substantial miscarriage of justicehas actually occurred unless theappellate court is persuaded that theevidence properly admitted at trialproved, beyond reasonable doubt, theaccused’s guilt of the offence on whichthe jury returned its verdict of guilty.[45] Likewise, no single universallyapplicable criterion can be formulatedwhich identifies cases in whichit would be proper for an appellatecourt not to dismiss the appeal, eventhough persuaded that the evidenceproperly admitted at trial proved,beyond reasonable doubt, theaccused’s guilt. What can be said,however, is that there may be caseswhere it would be proper to allowthe appeal and order a new trial,even though the appellate court waspersuaded to the requisite degree ofthe appellant’s guilt … [Footnotesomitted, additional emphasis added.]Although it is not an easy task to determinecomprehensively all of the implicationsof Weiss, 30 a few propositions maybe distilled:• There may be many cases where thenatural limitations attendant uponappellate review lead an appellatecourt to the view that it cannot reachsatisfaction beyond reasonable doubt.(This seems to be directed towards,for example, those cases which turnon the credit of witnesses judged fromdemeanour.)• There are cases in which it would bepossible to conclude that the errormade at trial would (or at least should)have had no significance in determiningthe verdict returned by the jury.(Presumably, for example, those casesthat do not turn on demeanour.)• No single universally applicabledescription of what constitutes “nosubstantial miscarriage of justice” canbe given.• No single universally applicable criterioncan be formulated which identifiescases in which it would be proper foran appellate court not to dismiss theappeal, even though persuaded thatthe evidence properly admitted at trialproved guilt beyond reasonable doubt.• There may be cases where it would beproper to allow the appeal and order anew trial, “even though the appellatecourt was persuaded to the requisitedegree of the appellant’s guilt”.On a practical level a cynic mightobserve that Weiss now permits anintermediate appellate court to say to anappellant: “You’ve not had a proper trialaccording to law before this jury (whoseconstitutional function is to determineguilt or non-guilt), but we’re going to denyyou a proper trial before another jurybecause we think that you’re guilty. Wewill be your jurors and we will try you.”THE HIGH COURT POST-WEISSImmediately following Weiss, the HighCourt delivered judgment in Nudd v TheQueen (2006) 80 ALJR 614; 225 ALR16. Much of the language was redolentof Mraz. 31 Only the Chief Justice 32 andKirby J 33 mentioned Weiss; and then onlyin passing. It excited hope in some quartersthat Weiss was, perhaps, quietly to beswept under the judicial carpet.However, the proviso was again up forgrabs in Darkan (2006) 80 ALJR 1250;228 ALR 334. Somewhat disappointingly,the majority 34 repeated that “[a]n appellatecourt invited to consider whether asubstantial miscarriage of justice has actuallyoccurred is to proceed in the sameway as an appellate court invited to decidewhether a jury verdict should be set asideon the ground that it is unreasonable, orcannot be supported having regard to theevidence”. 35 In so doing it “must makeits own independent assessment of theevidence and determine whether, makingdue allowance for the natural limitationsthat exist in the case of an appellate courtproceeding wholly or substantially on therecord, the accused was proved beyondreasonable doubt to be guilty”.In dissent, Kirby J made some furtherimportant observations as to the applicationof the proviso:[139] … The ordinary postulate of the Australianlegal system is that a person,accused of a crime, is entitled to atrial that conforms to the requirementsof the law. Most especially, inthe trial of serious criminal charges,the person is normally entitledto have the jury, as the “constitutionaljudge of fact”, resolvecontested questions of fact by theapplication of the applicable lawcorrectly explained to them by thepresiding judge …[140] A legal mistake in peripheral mat-37

38ters, such as on non-fundamentalissues of procedure, an insubstantialerror in admitting this or that pieceof evidence or a misdirection on aparticular point of fact or law arisingin the trial may not touch the fundamentalrequirement of having a trial“according to law”. But where theerror that is established involvesa mistaken direction with respectto an essential ingredient of theoffence and a misdescription tothe decision-maker (here the jury)of the content of that ingredient,a real question is presented as towhether the outcome then trulyanswers to a trial “according tolaw”.[141] Clearly, the language of the “proviso”is only enlivened when mistakeshave happened. The mistakes which[the proviso] contemplates include,explicitly, “the wrong decision on anyquestion of law”. However, the “proviso”is manifestly to be understoodagainst the background of the fundamentalassumption that high standardsof lawfulness are observed inthe conduct of criminal trials …[142] … The appellate court, decidingthe “proviso” question, is obliged toreach its own conclusion accordingto the statutory criteria. However,necessarily, it does so in the contextof a legal system that observes highstandards of compliance with thelaw; is protective against miscarriagesof justice and wrongful convictions;and ordinarily appliesthe rigorous criterion for proofof criminal guilt, namely proofbeyond reasonable doubt. [Footnotesomitted; emphasis added.]And later he observed:[161] … (1) … In a court of error, suchas this, where a serious mistake oflaw is revealed, there is a strongreason of principle why suchmistakes should ordinarily bemarked by the provision of reliefand an order for a retrial. Indeed,this is the primary instruction ofthe Code itself (“shall allow theappeal”).(2) The foregoing is especially sowhere the mistake has involved amisdescription to the jury of theingredients of the offences chargedagainst the appellants. Misdirectionsof such a kind are more serious thanothers. … The increasing insistenceof appellate courts upon theaccurate explanation to juriesof the central ingredients of theoffence(s) charged is, in my opinion,a reason for the greater cautionin the intermediate courts inthe application of the “proviso” inrecent years. Nothing said by theCourt in Weiss suggests a reversalof that caution. It really speaks foritself. If the decision-maker in thetrial (the jury) is misled as to itsessential function and providedwith an incorrect statement of theapplicable legal components ofthe offence, the postulate of a trialaccording to law is not fulfilled.No amount of appellate reasoningcan then replace that normal entitlementbelonging to all personsaccused of serious crimes. The“proviso” assumes that the essentialpostulate has been fulfilled... [Footnotes omitted; emphasisadded.]It is probably too early todiscern any trends in thejudgments of intermediateappellate courts so as topredict those cases wherethe proviso will not standin the way of a successfulappeal.Although Kirby J was in the minority, itmight be argued that his observations areto be regarded as of general application. 36Again, some propositions may be isolated:• An accused is normally entitled to havethe jury resolve contested questions offact by the application of the applicablelaw correctly explained to them i.e.“according to law”.• A legal mistake in peripheral mattersmay not touch the fundamentalrequirement of having a trial “accordingto law”.• But where the error that is establishedinvolves a mistaken direction withrespect to an essential ingredient ofthe offence and a misdescription tothe jury of the content of that ingredient,a real question is presentedas to whether the outcome thentruly answers to a trial “according tolaw”.• The proviso is to be understood againstthe background of the fundamentalassumption that high standards of lawfulnessare observed in the conduct ofcriminal trials.• The appellate court, deciding the provisoquestion, does so in the contextof a legal system that observes highstandards of compliance with the law;is protective against miscarriages ofjustice and wrongful convictions; andordinarily applies the rigorous criterionfor proof of criminal guilt.• Where there is a serious mistake of law,there is a strong reason of principlewhy such a mistake should ordinarilybe marked by the provision of reliefand an order for a retrial. That is theprimary instruction of the legislation(i.e. “shall allow the appeal”).• The proviso assumes that the essentialpostulate of a trial according to law hasbeen fulfilled.• If the jury is misled as to its essentialfunction and provided with an incorrectstatement of the applicable legalcomponents of the offence, the postulateof a trial according to law is notfulfilled.INTERMEDIATE APPELLATE COURTSPOST-WEISSWarren CJ recently observed of the invocationof the proviso post-Weiss that this“is a more complex and difficult processthan was previously so”. 37 That observationechoes earlier observations made bythe Court of Appeal (Vic.) as to “internaltensions” to be found in the propositionslaid out in the High Court’s judgment. 38It is probably too early to discern anytrends in the judgments of intermediateappellate courts so as to predict thosecases where the proviso will not stand inthe way of a successful appeal. However,post-Weiss the proviso has not beenapplied where there has been a misdirectiontouching the burden of proof, 39incorrect admission of opinion evidence 40or tendency evidence, 41 or a failure properlyto direct on propensity evidence. 42Nor was the proviso successfully invokedfor misdirections on crucial identificationevidence 43 or on consent in a rape case. 44Similarly, where the prosecutor madean inflammatory address, 45 or indulgedin improper cross-examination of theaccused, the proviso was not applied. 46And where a judge made very strongcomments in summing up adverse to theaccused, 47 and in another case left to thejury a possible basis for conviction notrelied upon by the Crown, 48 the provisodid not defeat the appeal.

AN UNRESOLVED QUESTIONA tantalising question — which willrequire resolution at some future time— is whether the Weiss approach isapplicable to appeals against conviction inCommonwealth cases. On one view, Weissdictates that once error is found, an appellantis, in effect, tried by the appellatecourt. It is for the appellate court to determinewhether guilt is established beyondreasonable doubt. Some would argue thatto apply Weiss in Commonwealth cases isto infringe s.80 of the Constitution. 49A PARTHEON SHOT?As we have seen, the High Court’sextraordinary decision in Weiss arose outof Callaway JA’s decision in the Court ofAppeal.In one of his last criminal cases beforeretirement, 50 Callaway JA implicitly suggestedthat Weiss dictated that the Courtwas required in that case to send it backfor a retrial rather than dismiss the appealby invoking the proviso (which seems tobe the opposite of what the High Court ingeneral intended).Rajakaruna (No 2) 51 involved convictionsfor rape of two prostitutes and associatedoffences. One of the complainantsmade a complaint of rape, and was seenby the person to whom the complaint wasmade to bear obvious injuries. Betweenthe time of the alleged rape and the complaint,however, the complainant spoke toanother person who observed no injuries.Without directly cross-examining thecomplainant on the matter, counsel forthe defence floated the argument in hisfinal address that this evidence indicatedthat the injuries might not have beeninflicted at the time of the rape, but atsome other later time.Counsel was criticised to the jury bythe trial judge for putting this argumentwithout first cross-examining on the topic.The Court of Appeal found this criticismto be wrong. It was held that the provisocould not be applied. Callaway JA’sreasons for not applying the proviso areinstructive. He said: 52[5] Before the decision of the High Courtin Weiss v The Queen this Court mighthave held that counsel’s argument wasso speculative that the judge’s errormade no difference despite the importanceof the injuries to the prosecutioncase. I do not stay to consider whetherthat would have been our conclusion.Before we can apply the proviso, weare now required, on the whole of therecord, to say that we ourselves aresatisfied beyond reasonable doubtthat the applicant was guilty. Therebeing no question of consciousness ofguilt, if we disbelieve his assertions inthe record of interview, the case is nobetter than if he had said nothing inhis own defence. The prosecution casethen depends on the credibility of thecomplainants. To be satisfied beyondreasonable doubt that the applicantwas guilty, one would need to seethem give their evidence and becross-examined. [Footnotes omitted;emphasis added.]CONCLUSIONThe words of the proviso cannot carrywith them the burden found by the HighCourt in Weiss. As a matter of languagethe proviso permits a court to ignore amiscarriage of justice that is not substantial.Nothing in the clear words of the proviso— regardless of its historical raisond’etre — requires an appellate court toapproach its application in the same waythat a court must approach a complaintthat a jury verdict is unsafe and unsatisfactory.To approach its interpretation inthat way simply is to read words that arenot there.At one level, Weiss has placed anunwarranted extra burden upon intermediateappellate courts resting on dubiousfoundations. The extent of the proviso’spractical application is in greater doubtnow than it was before Weiss was delivered.At another level, judges of intermediateappellate courts are left with theunpalatable alternatives of either refusingto apply it (which has the potentialto undermine the authority of the HighCourt), or applying it in circumstanceswhere conscientiously the judges believeit to be in error.Weiss is wrong. It should be reconsidered.Notes1. Criminal Appeal Act 1912 (NSW),s.6(1); Criminal Law Consolidation Act1935 (SA), s.353(1); Criminal Code (Q),s 688E(1) and (1A); Criminal AppealsAct 2004 (WA), s.14(2); Criminal CodeAct 1924 (Tas), s.402(1) and (2); CriminalCode Act (NT), s.411(1) and (2). By contrast,the proviso is not found in the FederalCourt of Australia Act 1976 (Cth); asto the effect of which, see Conway v TheQueen (2002) 209 CLR 203 at 218–219[35]–[36] per Gaudron ACJ, McHugh,Hayne and Callinan JJ, 230–231 [76]–[77]per Kirby J.2. Crimes Act 1961 (NZ), s.385.3. Criminal Code (Can.), s.686(1).4. It is interesting to note that, by comparison,the Canadian equivalent limits the applicationof the proviso to “a wrong decision ona question of law” i.e. the second groundonly. In a curious oversight, the Canadianlegislation, and the cases based upon it, donot appear to have been resorted to as anaid to interpretation by the High Court inWeiss.So far as is relevant, s.686 of the CriminalCode provides:(1) On the hearing of an appeal against aconviction …, the court of appeal(a) may allow the appeal where it isof the opinion that(i) the verdict should be setaside on the ground thatit is unreasonable or cannotbe supported by theevidence,(ii) the judgment of the trialcourt should be set asideon the ground of a wrongdecision on a question oflaw, or(iii) on any ground there was amiscarriage of justice;(b) may dismiss the appeal where(i) the court is of the opinionthat the appellant,although he was not properlyconvicted on a countor part of the indictment,was properly convicted onanother count or part ofthe indictment,(ii) the appeal is not decidedin favour of the appellanton any ground mentionedin paragraph (a),(iii) notwithstanding that thecourt is of the opinionthat on any groundmentioned in subparagraph(a)(ii) the appealmight be decided infavour of the appellant,it is of the opinion thatno substantial wrong ormiscarriage of justicehas occurred, or(iv) notwithstanding any proceduralirregularity at trial,the trial court had jurisdictionover the class ofoffence of which the appellantwas convicted and thecourt of appeal is of theopinion that the appellantsuffered no prejudicethereby … [Emphasisadded.]39

5. See M v The Queen (1994) 181 CLR 487at 492; MFA v The Queen (2002) 213 CLR606 at [25].6. See R v Gallagher [1998] 2 VR 671 at 675,where Brooking JA seems to accept thatthe proviso cannot be applied to the firstground. Brooking JA’s judgment contains athorough discussion of the topic.7. Cases decided by the High Court whereit was held that the proviso could not beapplied include: Krakouer v The Queen(1998) 194 CLR 202; 72 ALJR 1229 (misdirectionson the elements of the offenceand burden of proof despite the strengthof the Crown case); Driscoll v The Queen(1977) 137 CLR 517 and Storey v TheQueen (1978) 140 CLR 364 (misdirectionor non-direction on propensity evidence);Farrell v The Queen (1998) 194 CLR286 (failure to admit psychiatric evidencebearing upon the credibility of a criticalwitness); Gilbert v The Queen (2000)201 CLR 414 (conviction for murder wheremanslaughter had not been left to thejury); Grey v The Queen (2001) 75 ALJR1708 (non-disclosure of evidence materiallyaffecting credit of a crucial witness).Cases where the High Court has appliedthe proviso include: Suresh v The Queen(1998) 72 ALJR 769 (evidence of nonrecentcomplaint admitted without objectionin a sex case, where the defence reliedupon it as a prior inconsistent statement);Wilde v The Queen (1988) 164 CLR 365(failure to sever an indictment where,however, the Crown case was extremelystrong and the defence extremely weak);Festa v The Queen (2001) 208 CLR 593;76 ALJR 291 (misdirection concerningidentification evidence).8. See R v Gallagher [1998] 2 VR 671; Grey vThe Queen (2001) 75 ALJR 1708; 184 ALR593 at [25], [52]–[56]; Festa v The Queen(2001) 208 CLR 593; 76 ALJR 291 at [110]–[123], [197]–[199], [222]–[228]; Conway vThe Queen (2002) 209 CLR 203; 76 ALJR358; Ugle v The Queen (2001) 211 CLR171; 76 ALJR 886; TKWJ v The Queen(2002) 212 CLR 124.9. R v Weiss (2004) 8 VR 388; 145 A Crim R478 at [70].10. (2005) 80 ALJR 444; 223 ALR 662; [2005]HCA 81 at [10].11. Following Crease v Barrett (1835) 1Cr M & R 919 at 933 [149 ER 1353 at1359] the rule was taken to mean thatcourts had renounced all discretion, and,“where evidence formally objected toat Nisi Prius is received by the Judge,and is afterwards thought by the Courtto be inadmissible, the losing party hasa right to a new trial” — Wright v Doedem Tatham (1837) 7 A & E 313 at40330 [112 ER 488 at 495] per Lord DenmanCJ.12. R v Gibson (1887) 18 QBD 537 at 540–541per Lord Coleridge CJ. Compare R v Grills(1910) 11 CLR 400 at 410 per Griffiths CJ.13. Weiss at [18].14. Weiss at [18].15. Weiss at [30].16. Weiss at [40].17. Weiss at [41].18. See fn 5 above.19. R v Arcangioli [1994] 1 SCR 129 at 146.20. Colpitts v The Queen [1965] SCR 739 at744.21. At [6].22. At [113].23. Section 385(1) of the Crimes Act 1961(NZ) relevantly provides:(1) On any appeal ... [the Court] mustallow the appeal if it is of opinion:(a) That the verdict of the juryshould be set aside on theground that it is unreasonableor cannot be supported havingregard to the evidence; or(b) That the judgment of the Courtbefore which the appellant wasconvicted should be set asideon the ground of a wrong decisionon any question of law; or(c) That on any ground there was amiscarriage of justice; or(d) That the trial was a nullity —and in any other case shall dismissthe appeal:Provided that [the Court] may,notwithstanding that it is ofopinion that the point raised inthe appeal might be decided infavour of the appellant, dismissthe appeal if it considers thatno substantial miscarriage ofjustice has actually occurred.24. At 701–2.25. At 711–12.26. In particular, at [36] Lord Carswell said ofobservations in Wilde v The Queen (1988)164 CLR 365 at 372, 373, 374, per Brennan,Dawson and Toohey JJ. — “Their Lordshipsagree with these statements of thelaw and consider that they are correct.”27. R v Howse [2006] 1 NZLR 433; [2005]UKPC 31 at [34]–[35].28. See also The Queen v Wilson [2006] NZCA150.29. At [60].30. In a case concerning whether manslaughtershould have been left to the jury ona charge of murder, the Court of Appeal(Vic.) in R v Gill (2005) 159 A Crim R 243at [28], in commenting on the High Court’sjudgment in Weiss at [43], said:With respect, we regard those propositionsas giving rise to some internaltensions, given that, for the purpose ofassessing the application of the proviso,the appellate court must put aside thejury’s verdict, while at the same timebearing in mind that the jury returneda guilty verdict; must bear in mind thatthe issues in a trial are shaped by theforensic decisions of counsel, while atthe same time also bearing in mind thatunder the rule in Gillard [Gillard vThe Queen (2003) 219 CLR 1] forensicdecisions of counsel are to be ignored;and, subject to the modifications mentioned,must endeavour to decide thecase itself, as would occur in an appealin a civil matter, but with the differencethat, if in the end the appellate court isnot satisfied beyond reasonable doubtthat the evidence below establishedthat the accused was guilty of theoffence charged, the court must ordinarilyorder that a new trial be had.31. Nudd at [6] per Gleeson CJ; at [158]–[159]per Callinan and Heydon JJ.32. Nudd at [2] (fn 2), [6].33. Nudd at [57] (fn 83), [87] (fn 126), [112](fn 153).34. Gleeson CJ, Gummow, Heydon and CrennanJJ.35. At [84], citing Weiss v The Queen (2005)80 ALJR 444 at 454–455, [41] per GleesonCJ, Gummow, Kirby, Hayne, Callinan andHeydon JJ; 223 ALR 662 at 673–674.36. See and compare the judgment of themajority at [96].37. R v Redmond & Anor [2006] VSCA 75at [23]. Lies were wrongly left as to consciousnessof guilt. The proviso was notapplied.38. See fn 28 above.39. R v Nguyen [2006] VSCA 158.40. Keller v R [2006] NSWCCA 204.41. Gardiner v R (2006) 162 A Crim R 233(NSW, CCA).42. R v VA S [2006] VSCA 159 at [32]–[33].43. R v Hackett [2006] VSCA 138.44. W v R (2006) 162 A Crim R 264 (Tas,CCA).45. Livermore v R [2006] NSWCCA 334.46. Oldfield v R [2006] NSWCCA 219.47. Taleb v R [2006] NSWCCA 119.48. Robinson v R (2006) 162 A Crim R 88(NSW, CCA).49. Section 80 of the Constitution provides (sofar as is relevant):The trial on indictment of any offenceagainst any law of the Commonwealthshall be by jury ...50. His last conviction appeal was R v LRG[2006] VSCA 288 (see at [35]).51. [2006] VSCA 277.52. At [5].

News and ViewsTalking With Liars andBulliesGeoffrey GibsonTRUTH in negotiating is a little liketruth in advertising — often scarceand generally suspect. Bullyingcomes to us with nature — since all animalsare not created equal, some have thepower to prevail over others.When lawyers are talking about a possibledeal, as in negotiating to settle acase, and they are talking about, say, thereadiness of the victim to settle, or howmuch the other side may be able to offer,their devotion to veracity may seem to beless evident than when they are talking toa judge. You frequently hear statementsthat have as much truth value as whenCaptain Renault said to the owner or Rick’sCafé: “I am shocked, shocked, to find thatgambling is going on in here.” You expecta degree of vigour and chest-beating innegotiation. Lawyers used to use the word“puff” to describe how people in businesstalk up what they have on offer.People can also get heated about eitherthe principle or the money (generally thelatter under the guise of the former). It isalso common to hear people warning othersof the bad consequences that may flowfrom not reaching a deal. Warnings areone thing. (Presumably their own advisershave done the right thing and givenwarnings.) Threats are something else.Shortly after Captain Renault collectedhis winnings, Major Strasser discussed theoptions available to the Resistance herowith Ilsa. The second alternative? “My dear,Mademoiselle, perhaps you have alreadyobserved that in Casablanca human lifeis cheap. Goodnight, Mademoiselle.” Thiswas not a subtle threat. It is, however,the kind of thing that is becoming sadlyfrequent in negotiations between lawyersthat take the form of mediation.Lying and bullying are dealt with underthe headings of honesty and integrity.Where you are dealing with negotiating asettlement of litigation, there is a legal context.Under our common law of evidence,such discussions are privileged from beingGeoffrey Gibsoncompelled to be read in evidence in court.The discussions are like a “without prejudice”offer to settle a case. In mediation,the parties also frequently agree that theproceedings are confidential. The resultthen is that the proceedings cannot berevealed to anyone outside. The prohibitionextends beyond the courtroom. (It isas well for the parties to expressly stipulatethe confidentiality as the law seemsreluctant to imply that term.)The privilege and confidentiality areconfined to parties and the subject of thediscussion. A privilege is not an immunity.An act of bankruptcy does not cease tobe an act of bankruptcy because it takesplace in the course of negotiations. If oneparty punches or shoots another party,the ordinary legal consequences follow, asthey do if one party steals from, or blackmails,or defrauds another. It would be asabsurd for the party charged to plead thatthe crime was committed in the course ofnegotiations, as it would be for an arsonistcharged with burning down a churchto say that they struck the match in thecourse of an act of prayer or confession.We might therefore consider what variousparts of our law have to say about liesor threats offered in, say, a mediation. Wecan look briefly under five headings – criminallaw; civil wrongs (torts); contractualobligations; commercial law (trade practices);and the law dealing with obligationsowed by those who represent the interestsof others, such as lawyers and officers ofcorporations or representatives of government(called fiduciary obligations).If I obtain financial gain by deception,I am guilty of the crime of theft. Now thishappens daily and it has been going onsince any notion of property was developed.It has been going on in settlementdiscussions, on both sides, for centuries,and will continue. It is only rarelydiscovered in a way that can be provedbecause the exercise we are talking of islike a poker game. You have to pay to see.Jeffrey Archer got caught and went to gaolbecause he took his fraud into the witnessbox. I shall come back to our criminal lawnear the end of this note.In the form I have referred to, thecrime of theft involves the civil wrong ofdeceit. If a party obtains financial advantageby lying about their means they couldbe sued, if the deceit is discovered andcan be proved, for the damage causedby the decision induced by the lie, to payor accept an amount of money. Becausethey have been unjustly enriched, theymay also be accountable under our law ofrestitution.If a party or their lawyer says somethingfalse that damages the reputationof another, they may be exposed to anaction for defamation. There may be adefence of qualified privilege within themeaning of that term in the law of defamation,but that is very different from anda much more diffuse concept than theprivilege described in our law of evidence.And when lawyers and witnesses claiman absolute privilege for what they sayin court, there is no general immunity.The ordinary consequences follow if the41

witness lies in the witness box or the lawyerthreatens or insults the court.If it is the lawyer who publishes thelibel, it makes no difference for thatpart of our law if the lawyer does soexpressly on instructions. That assertion,if sustained, may be critical on an issue ofqualified privilege, but it has no bearingon whether the lawyer is liable for publication.Defamation is not a part of the lawthat you want to flirt with.There is another civil wrong that maybe relevant where people of unequalpower are trying to reach a bargain. Thetort of intimidation is not often invoked,and when it is, it is mainly invoked in anindustrial dispute that has turned verynasty. It can be constituted by the use ofunlawful threats against a party to inducethat party to act against their interests.Take a bad case. On one side there is animpoverished cripple of little understandingand even less capacity. On the otherside there is a publicly listed companywith a team of lawyers. The lead lawyerlooks the victim straight in the eye andsays that although this little case doesnot register on their radar, they have themeans and the motivation to run the casefor weeks and, if necessary, to take it onsuccessive appeals. Therefore, they say,the victim should take their offer, whichis the only one they will ever make, eventhough the lawyer for the victim saysthat offer is inadequate to the point ofbeing derisory. That is intimidation. If thethreats are unlawful, and there is damage,there may be an actionable wrong.So far as I know, this tort has notbeen invoked in the context of settlementdiscussions. If the intimidation hasfailed, there may be no real damage. If ithas worked, the victim will not often bemotivated to do something about it. Thelitigant who kicks down the door may bethe one who was psychiatrically down atthe time of settlement and under-represented,but has recovered and is nowready and able to complain. Similar considerationsmay arise when a party seeksto set aside a settlement on the grounds ofundue influence.Our law of contract provides thatwhere people have agreed to seek to procurea result, there is an implied term ofthe agreement that each side will do whatit can to enable the other side to get thebenefit of the bargain. If therefore partiesto a dispute enter into a legally bindingagreement to seek to resolve the disputeby a process of negotiation, the law willimply a term of that agreement that theywill negotiate in good faith.42As often as not, it is plain enough thatone party does not wish to negotiate at all,let alone in good faith, and there is notmuch point in mumbling about refinedlegal obligations. But reasonable peoplewith decent lawyers occasionally benefitfrom being reminded of the necessarybasis of any successful negotiation. Thatis why, perhaps, you tend to find that thepeople who first refer to good faith may bethe last to show any evidence of observingit. Ultimately the whole process restson agreement, and without at least somegoodwill, if not good faith, you will notconvert the agreement to negotiate intoan agreement to settle.The Americans have a useful applicationof the doctrine of good faith. They sayit is to be implied in contracts where theparties are not equal. Key examples forthe Americans are insurance and employment.They then say that because the obligationarises by operation of law, breach ofit is a civil wrong, and not just a breach ofcontract. Because there has been found tobe a tort, the guilty party can be punishedwith exemplary damages for abusing theirpower and throwing their weight around.You might think that this would be a salutaryremedy to have in Australia. It wouldbe interesting to see if any parliament inAustralia would be prepared to introducesuch a law.Commercial law relating to negotiationsconsists mainly of statutoryadditions to the common law of contract.State and federal laws prohibit misleadingand deceptive conduct. Some provisionsare criminal as well as civil. The conductcomplained of has to occur in trade andcommerce (a limitation that was first putthere for constitutional reasons).Whether negotiations in a mediationoccur in trade or commerce will dependon the context. A court ordered mediationwith lawyers on each side may beone thing. An attempt to resolve, beforelitigation, a dispute between shareholdersor partners, or under an insurancepolicy, or about the sale of a painting,where lawyers happen to be present,would be something else. It is very common,and more than a little worrying, inthe mediation of commercial disputes,for the lawyers far to outnumber the feepaying litigants. You get more jockeys atthe barrier than horses. If you wish to saythat lawyers engaged in trying to resolve acommercial dispute are carrying on theirprofession rather than taking part in tradeor commerce — are we so old-fashionedthat we have to pretend that there is anexclusive dichotomy? — then the relevantmediation might have a more sterile airthan its sponsors would prefer. What doyou say to lawyers who turn up and say,“We are here to be commercial”? Why arethey there at all?The significance of being able to makea claim for misleading conduct is that if itis not available the party aggrieved hasto consider an action for fraud. Fraud issomething which it is nasty to allege anddifficult to prove. The introduction of therelevant trade practices laws removed thetemptation to make such a claim when itshould not have been made in the past.There is also a difference in this partof the law from the law of libel in a lawyerexpressly making a statement on the basisof instructions. With the law of defamation,”A said B murdered C” translatesinto “B murdered C”. But this is not thecase for the purpose of establishing a misrepresentationfor misleading conduct. Inthe context of negotiations some assertionsmade by lawyers might implicitlybe made, and only made, on instructions,but some lawyers get so close to identifyingwith their clients that this might be adangerous assumption.The function of equity is to remind usthat lawyers and other representativesof the parties in dispute are in it for theparties, and not for themselves. If theirown sense of vainglory conflicts with theirduty, they must deal with it immediately.We have all had to sit through grandstandingby lawyers or posturing by executiveswhere this very basic rule gets forgotten.We have all had to watch in action legendarynay-sayers who are heroic with otherpeople’s money behind them and whoappear to enjoy playing with the lives ofothers. They remind you of the lament ofGloucester to the Old Man on the heath:As flies to wanton boys, are we to the gods.They kill us for their sport.The notions of undue influence andclean hands may also be invoked inresponse to an endeavour to enforce asettlement procured unconscionably. In asufficiently dire case, a party can move toset aside an agreement obtained by conductthat is unconscientious (equity) orunconscionable (limited under statute).To come back to the criminal law, wedescribe as contempt of court the commonlaw crime of interfering with thecourse of justice. That offence may beconstituted by putting undue pressureon a litigant to deter them from pursuingtheir legal rights. Bullying a litigant intoaccepting a settlement that is manifestly

unfair would be a clear instance of thiscrime. If the threats or pressure broughtagainst the victim as litigant amount tocontempt of court, this head of unlawfulnesscould supply the link to enable aclaim for damages to be made for the tortof intimidation.Now, this dry recital of basic legalpropositions will be unnecessary for allbut a tiny number of negotiations in whichwe as lawyers are engaged. As I remarked,the misbehaviour under discussion isdealt with by reference to considerationsof honesty and courtesy. If you hear an actof bullying described as an animal act, itis because courtesy is what separates usfrom animals.But you do sometimes get an impressionthat some people — parties or lawyers— think that they may be operatingin a zone where the Queen’s writ does notrun, a cone not of silence but of lawlessness.It is as if they are trading on thevery proper and necessary reluctance oflawyers, including judges, to pull back theveil from the negotiation and mediationprocess. Mediation may have been damagedby being assimilated into the courtprocess, but one way to kill it would be toopen it up for inquiry in court or before acommittee of professional ethics.Yet a noticeable tendency remains forone side to play the man. It is usually thebigger side and it frequently looks likethey have chosen their mark. This is aform of bullying and it is sickening. I amtold by leaders of the common law Bar,whose opinion I value and whose judgmentI trust, that they now think it is goodpractice for lawyers acting for a plaintiffin claims involving personal injuries to gointo the opening session of a mediationwithout their client for fear of exposingtheir client to intimidation by the otherside.This is very worrying indeed. Somelawyers are, as a matter of course, not preparedto take their clients into a meetingwith the other side because they do nottrust the lawyers for the other side to beable to control their own clients and havethem behave properly. (These people willusually be representing professional litigants.)A lawyer who said that in a commercialcontext at the other end of townwould be regarded as meshugga.If it is the lawyer who is engaged in themisbehaviour, and if the mediation is onethat has been ordered by a court, you havean officer of the court acting in a mannercalculated to interfere with or abuse aprocess ordered by the court. For all Iknow, some judges may take the view thatsuch misconduct might of itself constitutethe criminal offence of interfering with thecourse of justice.However that may be, the professionplainly needs to get its act together.You usually find that it is easier to catchbullies than liars. And in the end, MajorStrasser did have the courtesy to getshot. Or, if you prefer your allusions frommore remote age, shortly before Romewas sacked, it sent out two ambassadorsto negotiate with the Goths. They didso, Gibbon said, “perhaps in a more loftystyle than became their abject condition.”When they sought to talk down to Alaricthe Goth, he replied, “The thicker thehay, the easier it is to mow”, and laughedout loud.Conference Updates1–7 April 2007, (pre Easter Week)Cervinia Italy/Zermatt, Switzerland(The Matterhorn) — Europe OceaniaLegal Conference.9–16 April 2007, (post Easter week)Venice/Verona, Italy — Pan EuropePacific Legal Conference.1–4 July 2007, New York, USA— USA Pacific Legal conference (Will bescheduled to begin just after the 2007Australian Bar Association conference inChicago).6–13 July 2007, Lake Como, Italy— Europe Asia Legal conference.18–24 July 2007, St Petersburg,Russia — East West Legal Conference.12–19 August 2007, (held annually)Perisher Blue, NSW — AustralasianLegal Conference.15–21 September 2007, Kos, Greece— Kos 2007, presented by the GreekConference.21–27 September 2007, Taormina(Sicily), Italy — Pan Europe Asia LegalConference29 September–6 October 2007, (heldannually) Heron Island, Great BarrierReef — Pacific Rim Legal Conference.28 December 2007–3 January 2008,Khyber Pass, Peshawar Pakistan— Indus Pacific Legal Conference.7–14 January 2008, (held annually)Cortina D’Ampezzo, Italy — EuropePacific Legal Conference.17–24 January 2008, St Petersburg,Russia — East West Legal Conference.29 June–5 July 2008, Positano, Italy— Europe Asia Legal conference (indicativedates).July 2009, Lipari, Sicily, Italy —Europe Asia Legal conference.July 2009, Stratford-upon-Avon& Oxford — Britain Pacific LegalConference (dates to coincide with thefirst cricket test Australia–England).43

News and ViewsThe Process of Appointment ofThe current process and the Bar Council report tomembersON 21 February 2007, the ChiefJustice released and posted on theSupreme Court website a summaryof the current process of appointment ofSenior Counsel in Victoria.On 23 February 2007, the Chairman ofthe Bar Council issued and circulated toall members a report of the review of theprocess by the Bar Council.Some matters in the Chief Justice’ssummary are reproduced in the BarCouncil report. Each document is set outin full below.BACKGROUND INFORMATIONOn 28 November 2006, the Chief Justiceappointed 13 new Senior Counsel. Thisbrought the number of Senior Counsel onthe practising list to 228: 13 per cent ofthe total number of 1,672.Soon after the announcement, theChairman of the Bar Council receivedcorrespondence, both public and private,about the merits of the appointment process.The correspondence extended overa period of months from December 2006through February 2007 and focussed on anumber of issues:(a) Whether the process was sufficientlytransparent; whether the identity ofthe members of the Supreme Courtadvisory committee and their periodof tenure should be disclosed;(b) Whether the basis for selection ofSenior Counsel should be moreclearly articulated;(c) Whether any restriction is or shouldbe placed on the number who may beappointed as Senior Counsel;(d) Whether any feedback or reasonsshould be given to unsuccessful candidates;(e) Whether unsuccessful candidatesshould be given the opportunity toseek a review of the decision affectingthem; and(f) Whether the Court is best placed toassume the burden of being the ultimatedecision maker in the process,rather than the principal consultant.The current system of the Chief Justicemaking the appointments pursuant toRules of the Court has been operating forthree years. The Bar Council felt it timelyto review how the process has worked andwhether any change was desirable.Other developments also made thereview timely — the review by the SouthAustralian Attorney-General of theprocess there; and the resolution of theCouncil of the Australian Bar Associationto consider the merits of adopting anational protocol.The Bar Council considered the mattercarefully, having before it, amongst otherthings, the correspondence addressedto the Chairman; the Chief Justice’s 21February 2007 summary of the Victorianprocess; protocols from other AustralianStates and Territories; and the protocolfor England and Wales.At its meeting on 22 February 2007,the Bar Council unanimously resolvedto confirm its support for the currentVictorian process.The Appointment of Senior Counsel in VictoriaSummary of Current ProcessAPPLICATIONS for appointment ofSenior Counsel are governed by theRules of Court: Ch2 Rules 14.13.The Rules provide for such appointmentby the Chief Justice. They confer no rightof review or appeal. The Chief Justicemakes the appointment by signing aninstrument of appointment.44CRITERIA FOR APPOINTMENTThe Rules provide that a person who isadmitted to the legal profession in Victoriaand who is, and for many years has been,practising exclusively or mainly as counsel,whether in Victoria or elsewherewithin Australia, may be appointed SeniorCounsel in and for the State of Victoria.They do not otherwise specify criteria forappointment.Ordinarily the Court issues a noticecalling for applications for the appointmentof Senior Counsel by a particulardate towards the end of August. It statesin part:The designation of a practitioner as SeniorCounsel is intended to recognize thosewhose standing and achievements justifyan expectation on the part of the publicand the judiciary that they will provideoutstanding services, as counsel, to theadministration of justice.Senior Counsel must be, and be seenby the judiciary and by their peers to be,deserving of such recognition. Qualitiesrequired to a high degree for appointmentas Senior Counsel are learning and skill,integrity and independence, maturity anda sense of public responsibility.Once the deadline for applicationshas passed, the Court’s staff processesthe applications received, and preparesa table of applicants, setting out theirrespective areas of practice, year of signingthe Roll and whether they have previouslyapplied. The Court writes to thenamed referees seeking a written reportby a stipulated date on the applicant’s

Senior Counsel in Victoriasuitability for appointment. The referees,who are usually superior court judges,then provide the Chief Justice with a writtenconfidential report.SUPREME COURT ADVISORYCOMMITTEEThe Chief Justice appoints an advisorycommittee consisting of seven membersof the court — two judges of the Courtof Appeal, a senior judge from each ofthe three divisions of the Court (Crime,Commercial and Equity and CommonLaw) and two additional judges who aremore junior. The more senior appellatejudge chairs the committee. Its compositionmay change from year to year.Members of the committee are given, ona strictly confidential basis, a hard copy ofeach application and the reports receivedfrom the referees.The committee meets frequently overa period of four to six weeks and providesthe Chief Justice with its views as to whoare, say, the 20 top-ranking applicants.CONSULTATIONThe Chief Justice then consults with thefollowing officer holders concerning thoseapplicants who practise the office holder’sjurisdiction and for that purpose sends tothem on a strictly confidential basis thenames of the applicants:Chief Justice of the Federal CourtChief Justice of the Family CourtChief Judge of the County CourtPresident of VCATSolicitor-GeneralChairperson and Vice-Chairperson of theBar CouncilPresident of Law Institute of VictoriaDirectors of Public Prosecution (Cth andState)President of the Industrial RelationsCommissionChairperson of the Criminal BarAssociationChairperson of the Common Law BarAssociationPresident of the Commercial BarAssociationWhere relevant, chairpersons of otherBar Associations may also be consulted.Those consulted, however, are not givencopies of the applications or reports fromreferees.Ordinarily, the Chief Justice of theFederal Court consults with the VictorianFederal Court judges before meeting withthe Chief Justice, as does the Chief Justiceof the Family Court. The Chief Judge ofthe County Court consults with six judgesof his court, four senior and two junior.The President of VCAT usually consultswith his Deputy Presidents.CONSIDERATION BY THE SUPREMECOURT ADVISORY COMMITTEEThe Chief Justice next discusses theresults of that process of consultation withthe committee which then further considersthe ranking of the applicants, havingregard to the results of the consultation.That ordinarily occupies two or threemeetings of the committee and, by earlyNovember, it furnishes the Chief Justicewith its list of recommended appointees.In the meantime, the Chief Justiceherself further considers the matter andconsults further with the Senior PuisneJudge of the Court and the President ofthe Court of Appeal.Following these processes the ChiefJustice makes a final decision on thecomposition of the list of successfulcandidates. The Chief Justice recalls thematerials provided to the committee andall copies of applications and reports aredestroyed. The Chief Justice retains hernotes of the consultative process.The Chief Justice announces the successfulcandidates, having first written toall candidates advising them of the outcomeof their applications. In accordancewith Rule 14.15 the appointment of SeniorCounsel is in writing, signed by the ChiefJustice and sealed with the seal of theCourt. Successful candidates announcetheir appearance as Senior Counsel at aceremonial sitting of the Court.The particular strengths of the aboveprocess that the Chief Justice overseesare, first, the width and depth of consultationand, secondly, the confidentiality ofthe process which allows for candour inthe consultation process, as well as thetangible contribution to the decision-makingprocess from those knowledgeableand experienced in the relevant jurisdiction.AppendixORDER 14ADMISSION TO PRACTISE ANDSENIOR COUNSELPART 2: SENIOR COUNSELRule 14.13 inserted by S.R. No. 133/2004 Rule 5.14.13 QualificationRule 14.13(1) amended by S.R. No.147/205 rule 5(2)(h).(1) A person who is admitted to the legalprofession in Victoria and who is,and for many years has been, regularlypractising exclusively or mainlyas counsel, whether in Victoria orelsewhere within Australia, may beappointed Senior Counsel in and forthe State of Victoria.Rule 14.14 inserted by S.R. No. 133/2004 rule 5.(2) A person who is so appointed shallhave full authority within Victoria todo all things that Queen’s Counsel orother Senior Counsel within Victoriamay do and in the same manner andform.14.14 Application(1) A person who is qualified to be soappointed may apply in writing tothe Chief Justice for appointment asSenior Counsel.(2) Such applications shall be made atsuch time each year and in such manneras the Chief Justice from time totime directs.45

(3) An applicant shall provide with theapplication such information as theChief Justice requires.(4) An application under this Rule andall information provided to the ChiefJustice relating to the applicationare confidential and are not open toinspection by any other person saveat the direction of the Chief Justice.Rule 14.15 inserted by S.R. No. 133/2004 rule 5.14.15 Appointment(1) Appointment as Senior Counsel shallbe in writing, signed by the ChiefJustice and sealed with the seal of theCourt and shall be announced in suchmanner and form as the Chief Justicedetermines.(2) A person so appointed shall have andmay exercise in Court such precedenceas the Chief Justice directs atthe time of the appointment.(3) The appointment shall be entered onthe Roll kept by the Prothonotary forthe purpose.Review of the Process of Appointment of SeniorCounselTO members of the Bar:From 2004 the Chief Justice ofthe Supreme Court of Victoria, atthe request of the Victorian Bar Council,has undertaken responsibility for theappointment of senior counsel in Victoria.Following recent criticism of theselection process, the Bar Council hasreviewed the process in place for theappointment of senior counsel in Victoria.In so doing the Bar Council was consciousthat the current selection process hasonly been in place for three years and thatthe nature of the decision being made bythe Chief Justice will inevitably lead tosome applicants being extremely disappointed.On 22 February 2007, the Bar Councilunanimously resolved to confirm its supportfor the current process of appointmentof senior counsel by the ChiefJustice.For the purpose of assisting the reviewby the Bar Council, the Chief Justicereleased a document (available in full onthe Supreme Court website and the Bar’swebsite) summarising the current processfor appointment. The process includes thefollowing:(a) The Chief Justice appoints an advisorycommittee consisting of:46(i)two judges of the Court ofAppeal;(ii) a senior judge from each of thecrime, commercial and equityand common law divisions ofthe Court;(iii) two additional more juniorjudges.The committee is provided on a strictlyconfidential basis with a copy of eachapplication and the reports from refereesnamed by the applicant. The committeemeets frequently over a period of four tosix weeks and provides the Chief Justicewith its views on the top ranking applicants.(b) The Chief Justice then consults withthe following office holders concerningthose applicants who practise inthe office holder’s jurisdiction andfor that purpose sends to them on astrictly confidential basis a copy ofthe name or names of all applicants:Chief Justice of the Federal Court.Chief Justice of the Family Court.Chief Judge of the County Court.President of the Victorian Civil andAdministrative Tribunal (VCAT).Solicitor-General.Chairperson and Vice-Chairperson ofthe Bar Council.President of Law Institute ofVictoria.Directors of Public Prosecution (Cthand State).President of the Industrial RelationsCommission.Chairperson of the Criminal BarAssociation.Chairperson of the Common Law BarAssociation.President of the Commercial BarAssociation.Where relevant, chairpersons of otherBar Associations may also be consulted.Those consulted, however, are not givencopies of the applications or reports fromreferees.(c) Before meeting with the ChiefJustice:(i) The Chief Justice of theFederal Court consults with theVictorian Federal Court judges;(ii) The Chief Justice of the FamilyCourt does likewise;(iii) The Chief Judge of the CountyCourt consults with six judgesof his court, four senior and twojunior; and(iv) The President of VCAT usuallyconsults with his DeputyPresidents.(d) The Chief Justice next discussesthe results of that process of consultationwith the committee, whichthen further considers the rankingof the applicants having regard tothe results of the consultation. Thisordinarily occupies two or threemeetings of the committee and, byearly November, the committee furnishesthe Chief Justice with its list ofrecommended appointees.(e) In the meantime, the Chief Justiceherself further considers the matterand consults further with:(i)the Senior Puisne Judge of theCourt; and(ii) the President of the Court ofAppeal;(f) The Chief Justice makes the appointments.The Bar Council agrees with theobservations of the Chief Justice thatthe particular strengths of the aboveprocess include the width and depth ofconsultation, the confidentiality of theprocess which allows for candour in theconsultation process as well as the tangiblecontribution to the decision-makingprocess from those knowledgeable andexperienced in the relevant jurisdiction.Such a process of its nature cannot befully transparent and open.Further, the Bar Council consideredthat there are the following further advantages:(a) The selection process is principally inthe hands of the most senior judicialofficers in the State;(b) By reason of her position, the ChiefJustice has an unparalleled capacityto engage in candid consultation withthe many members of Courts and

Tribunals in the State; and(c) Because of the significance of thequality of the performance of barristersin court, the Bar Councilconsidered that the best selectionprocess would maximise the inputfrom judges and tribunal members,who actually observe the barristers atwork.The principal criticisms of the currentprocess are that they do not include provisionsfor feedback or a right of review. Withrespect to these matters, the Bar Councilreviewed the processes currently in placein New South Wales and England.In New South Wales, after publicationof the list of successful applicants, anyunsuccessful applicant may discuss his orher application with the President of theNew South Wales Bar Association, whois a member of the Selection Committee.With respect to such a provision the BarCouncil noted the following:(a) There is no obligation on thePresident to disclose any matters tothe unsuccessful applicant and presumably,if references are given inconfidence, the President would beunable to disclose such confidentialinformation as the basis for rejection.(b) As the person appointing SeniorCounsel in Victoria is the most seniorjudicial officer in the State, it wouldbe unreasonably onerous to expecther to consult with unsuccessful candidateson an individual basis.In England, there is provision for acomplaints committee to receive complaints“about the operation of the system”.It is not a review of the merits ofthe application. Because Victorian SeniorCounsel are appointed by the most seniorJudge in Victoria, the Bar Council considersit inappropriate that there should beprovision for appeal from her decision.In summary, the Bar Council consideredthat the advantages of the currentprocess greatly outweighed any perceiveddisadvantages. It needs to be understoodthat every process of appointment willhave its disappointed applicants.From time to time, the Bar Councilmay request the Chief Justice to consideradjusting the selection process if it considersimprovements can be made to it withinthe existing framework of the process.Michael ShandChairmanVictorian Bar CouncilJohn Larkinsfurnitureindividually craftedDesks, tables (conference, dining,coffee, side and hall).Folder stands for briefs and other itemsin timber for chambers and home.Workshop:2 Alfred Street,North Fitzroy 3068Phone/Fax: 9486 4341Email: jglarkins@iinet.net.auTAILORINGSuits tailored to measureAlterations and invisiblemendingQuality off-rack suitsRepairs to legal robesBar jackets made to orderLES LEES TAILORSShop 8, 121 William Street,Melbourne, Vic 3000Tel: 9629 2249FrankstonTel: 9783 537247

News and ViewsOpening of the Legal Year: 30 January 2007Ecumenical ObservanceSt Paul’s Anglican CathedralAddress by theArchbishop ofMelbourne The MostReverend Dr PhilipFreierDeuteronomy 30:8–14Psalm 19:7–102 Corinthians 8:7–12Luke 10:30–37THE proposition put in the ancientwisdom of the book of Deuteronomyis plain enough: follow the preceptsof God and you will prosper. “Then youshall again obey the Lord, observing allhis commandments that I am commandingyou today, and the Lord your Godwill make you abundantly prosperousin all your undertakings, in the fruit ofyour body, in the fruit of your livestock,and in the fruit of your soil. For the Lordwill again take delight in prospering you,just as he delighted in prospering yourancestors, when you obey the Lord yourGod by observing his commandmentsand decrees.” As the Psalmist says (Ps19.1), “The law of the Lord is perfectreviving the soul.” The vision of a worldwhere the divine law is the animatingsource of human aspiration is a powerfulone and has motivated many attempts todevelop a theocratic society where thebehaviour of the members of the societywere brought into conformation out ofaspiration or compulsion with the divinelaw. Monasticism and Puritanism mightbe seen as aspirational versions of thisproject and the Inquisition its compulsorycounterpart.Few if any here today would makethe same sort of claims of the law underwhich you practice as solicitors, barristersor members of the judiciary. Eachperson here will have their own stories ofthe fallibility of the law. Is there a lawyeramongst you has not failed in a case or a48magistrate or judge who has never hada decision appealed against? We havepractices and procedures in the law whichenable as far as is possible for the fallibilityof law to be tested, and in this way reacha result that all can share a confidence in.This reality may well be the source of thenecessary and healthy aspirational characterof members of the legal profession toimprove the way the law meets the needsof the society it serves and shapes. Afterall, the law touches the most treasuredfreedoms that we can enjoy, our libertyand the continued use of our property,and has sanctions of compulsion that areable to curtail both. Even without makinganything beyond a social claim for the lawwe must admit its importance and seriousnessfor the wellbeing of the society andthose individuals who form it. It is entirelyproper that there is a recognition of thedemands these responsibilities make onthe members of the profession and thehigh degree of professionalism and commitmentto duty that you willingly give.It is also proper that any transgressionsof this professionalism are the subject ofpublic alarm and media discussion butunfortunate for the majority who upholdhigh standards that the examples of fail-

The Archbishopof Melbourne TheMost Reverend DrPhilip Freier giveshis sermon.People have sometimes referred to thetwo dimensions of loving God and lovingour neighbour as the vertical and horizontaldimensions of Christian faith. Justas the cross on which our Saviour wascrucified had a vertical and a horizontalelement so our faith has these same twodimensions. In Australia we are fortunatethat belief in God is permitted to be amatter of conscience and free will. This isnot universally the case, even though theThe Dean of Melbourne, The VeryReverend David Richardson.ure are often the only reports about theprofession that the public receives.St Paul’s encouragement of theCorinthian Christian community to excellenceand his urging that they continue onthe way that they have started is a helpfulpoint of reflection in the course of anycareer. Paul of course is talking about awork of compassion and mercy for theChristians in Macedonia, but who amongstus could not benefit from reflecting on themotivation we had when first commencingin the career or vocation that consumesso many of our waking hours and yearsof our life?Jesus taught that the relationship wehave with God and the relationships thatwe have with each other are in the centreof what God, his Father is concernedabout. Jesus showed by his life and madepossible through his death and resurrectiona right relationship with God. Fromthe divine perspective the world is in theprocess of redemption as it absorbs theworld changing transformation that wasmade possible in Christ. From our humanperspective, as people who seek to followChrist or even consider his claims over us,we are often aware of the situations wherethis transformation is desperately needed.Chairman of the Bar Council, MichaelShand, QC,reads the Second Lesson.sway of the compulsory atheism of varioustotalitarian regimes appears to be waningthroughout the world. In a society wherewe are free to believe in Christ as a matterof conscience and choice we are usuallyin a situation where we are also free tochoose how we operate in this horizontaldimension of being a faithful follower ofJesus Christ. I mean by this that as longas we broadly follow the laws of the societyin which we live, the society itself isnot concerned about the internal state ofour souls, whether we harbour a grudge,or are people whose lives are shaped bygreed or envy. This is left to the individual49

who is free to choose to commit to atransformed life or not. Your experienceof human nature may have brought youto a similar conclusion, this is the natureof the individual freedom we have in oursociety that sees such matters as thesubject of aspiration rather than compulsion.Since this is a matter of choice it isimportant that we return to the biblicalsources of how Jesus teaches us to live inthis horizontal dimension. Two principlesstand out. Firstly that Jesus leaves to ushis work of telling the people of the worldthat God has good news for them. Thismeans calling people to new life, conversion,baptism and incorporation intothe life of the church. We recognise thisneed not just in the places and cultureswho have not heard this message duringtheir history but also amongst the peopleand lands that have been the cradleof many generations of Christian believers.The horizontal dimension of Christianfaith will mean that Christians seek toshape the community in which they liveso it better reflects the purposes of theGod whom they have known as loving andrestoring. Australian society will have theinfluence of the Christians who are partof their number and in Australian societywe should expect the followers of JesusChrist will be vigorous citizens. Freedomto worship and to share the good news ofthe gospel are values that Christians havealways expressed even when the societyin which they have lived was unsupportive.Sometimes claiming this freedom hasbeen costly and many have forfeited theirproperty, their freedom and their lives onthis account over the two millennia ofChristian faith. Christians know well thatthe legal code that arises from the consensusof public opinion is not inevitablypermissive or enabling of the freedomsthey seek. But a society that concedesthese freedoms stands to gain far morefrom its Christian members than one thatdoes not.Jesus taught that Christians shouldlove their neighbour as themselves andwhen he was asked “Who is my neighbour?”responded by telling the parableof the Good Samaritan. Jesus’ teaching isthat help in a time of need is the clearestexpression of love for the neighbour andthat the neighbour is the one whose needhas come before us. It is easy enough toimagine the scene that Jesus described,and occasionally we might have a lifeexperience that seems similar to theoccasional situations of coming acrossJustice Dodds-Streeton, right, and Justice Williams, with students from ShelfordGirls Grammar, Melanie Bolitho, Emma Rotstein, Kylie Dolan and FrancescaKuperman.someone in distress or urgent need whereour involvement is decisive for their wellbeing.Like the Good Samaritan in the Gospelstory today you are often the people whocome upon the troubled and the needy;they come to your offices or chambers insearch of representation or advice, or forthe application of the law in your courts.Jesus’ teaching in the parable of theGood Samaritan is demanding and onewhich we are all conscious of ignoring orrationalising as we encounter the worldand its pain. The parable of the GoodSamaritan also shows something else thatin addition to personal acts of mercy wemight do as individuals there is a secondaryway to show love and compassionwhich is just as important. Rememberthat the Samaritan came upon the injuredtraveller and rendered him immediateassistance but the lasting effect in his restorationand recovery was the Samaritan’swillingness to provide for his lodgingswhile he returned to his health and wellbeing. This is the secondary element oflove for neighbour and is the reason whyChristian Churches have been for manygenerations the founders of such institutionsfor the compassionate service ofothers.I’m sure that we need to practice boththe primary and personal part of love forneighbour as well as the secondary andindirect part as we respond to the worldand its needs. There are many opportunitiesthat you have through your work toencounter the “bruised traveller who hassuffered in the journey”. If you have thetime to be attentive to the stories of thepeople whom you encounter I’m sure thatthere are many layers of need that go fardeeper than the presenting issue or matterof concern. The generosity of members ofthe legal profession in providing serviceswithout charge or fee is a good example ofthe application of this primary dimensionof love of neighbour. The pro bono work50

The Most Reverend Dr Philip Freierand Chief Commissioner Nixon.Chief Justice Bryant.His Excellency Professor de Kretser reads the Gospel.by members of the profession is a greattestimony to your commitment to investin this interior and unregulated dimensionof human and societal relationships. Justas the Good Samaritan took the travellerto a place of rest and recovery, what I amcalling the secondary dimension of lovefor neighbour, so you entrust those whomyou encounter to what we call the “legalsystem”. Even though it is less immediatethan the primary manifestations of lovefor neighbour your contribution to theconfidence and quality of outcomes ofthe system is also an expression of lovefor neighbour. It is equally somethingthat may well be interior and unnoticedbut also involves the vigorous debatesthat happen between the members of ahealthy profession as you keep each otheraccountable to the aspirations and integrityof your calling.Relationships between countries couldbe considered to fall into this secondaryarea. As we know economic justice andthe capacity of any nation to meet theneeds of its people are the platform for apeaceful society within a country and forthe peaceful interaction between states.The growth of globalisation means that weare all more aware of this interaction. Inthis way we should be concerned that thepolicies of our governments build the platformof peace and justice as one nationinteracts with another or as the economicinterests of corporations, which are nolonger just identified with any individualnation, work across national boundaries.Love of neighbour will work its concerninto this secondary area. You will knowfar better than I do the dimensions ofinternational law and the means availableto influence good environmental, labourand human rights outcomes outside of ourown country.I have quoted some words from JohnWesley’s covenant service in my columnin the Melbourne Anglican this month, Iwould like to read it to you now as I closeand encourage your reflection on thesewords and what they say about the Lord’scall for us to be partners in the mission ofGod.Christ has many services to be done:some are easy, others are difficult;some bring honour, others bringreproach;some are suitable to our naturalinclinations and material interests,others are contrary to both;in some we may please Christ andplease ourselves;in others we cannot please Christexcept by denying ourselves.Yet the power to do all these things is givento us in Christ,who strengthens us.Therefore let us make this covenant of Godour own.Let us give ourselves to him,Trusting in his promises and relying on hisgrace.51

News and ViewsRoman Catholic Observance (Red Mass)St Patrick’s Roman CatholicCathedralHomily for the Red Mass by Father Joe Caddy, Chief Executive Officer,Centacare Catholic Family ServicesAMERICAN author CormacMcCarthy’s latest novel The Road 1published last year is a grim storyset in post-apocalyptic times. A father andhis young son walk alone through burnedAmerica. Nothing moves in the ravagedlandscape save the ash on the wind. It iscold enough to crack stones, and whenthe snow falls it is grey. The sky is dark.Their destination is the coast, they hope itwill be warmer there, although they don’tknow what, if anything, awaits them. Theyhave nothing; just a pistol to defend themselvesagainst the lawless bands that stalkthe road, the clothes they are wearing,a cart of scavenged food — and eachother.The Road is a moving story of afuture in which nearly no hope remains.Frightening in its vision of that futureThe Road presents a scenario of wherewe might headed if we ignore the worldof community and allow the world of theindividual to reign free and unrestrained.The love between the Father and Sonis the only sign of hope in the story. It isfragile and yet extremely powerful (orperhaps empowering) and through itsurvival is ensured (and while I won’t tellyou the ending of the story) it is throughthat love and survival that the story leavesus with a glimmer of hope for a new andemerging community.In some descriptions of the communityof God expressed in the Trinity the Spiritsimilarly is described as that warmthand love existing between God theFather and the Son — a Spirit thatempowers.It is the Spirit that our readings today,the traditional readings for the Red Mass,invoke. Drawing on three different elementsof the scriptures — the prophetIsaiah, John the evangelist, and Paul theapostle — they give us a vibrant picture ofthe Spirit of the Lord:52Most Reverend Denis Hart DD,Archbishop of Melbourne.Justice Cavanough.• Spirit sent by the Father in Jesus’name;• the Spirit of wisdom;• the Spirit that will remind us of all thatJesus has said;• the Spirit that brings understanding ofwhat has been revealed.The Spirit was given to the prophetIsaiah as part of his being commissionedto:• bring good news to the poor;• bind up the hearts that are broken;• proclaim liberty to captives;• bring freedom to those in prison;• proclaim the Lord’s year of favour …Reverend Joe Caddy.Each of us is enlivened by the Spirit.God is with us, as individuals, and asa community of believers. We not onlyhave the teaching and example of Christto guide us, but we are infused with theSpirit that gives us a “wisdom and perceptionof what has been revealed”.We know from our own experience,and Cormac McCarthy’s story throws furtherlight on the fact, that for the humanperson to flourish individual survival is notenough; community is necessary.God’s plan for humanity has alwaysbeen a social one. He promises Abrahamthat his descendents will number as

many as the stars and will become a greatnation. The Exodus from slavery in Egyptand the 40 years in the desert is the journeytowards the Promised Land and thenation that will be built. Jesus himselfcame to inaugurate the Kingdom of God.When he was asked in Matthew’s Gospelwhat was the greatest commandment ofthe law Jesus replied, “You must love theLord your God with all your heart, with allyour soul and with all your mind.” Thenhe emphasised the communal dimension.The second greatest law he said, whichresembles the first, is this: “You must loveyour neighbour as yourself.”communities. Today we celebrate this aswe mark the opening of a new year for thelegal profession. The law to a large degreerepresents the governing arrangementsthat we put in place in civil society to helpus towards the outcome that Jesus promisedwhen he said that “he came so thatwe might have life and have it to the full”.(John 10:10)The rule of law underpins a great dealof our social and material well being andsecurity. Nothing brings this home morestarkly than to contrast our situationwith the lawlessness characterised inCormac McCarthy’s novel The Road andaccess to redress; protection for the weak— these are all areas where there havebeen great advances in this society overthe centuries, and over recent decades.But all of us are conscious of the scope forfurther improvement. I am acutely awarethrough the work of Centacare CatholicFamily Services and my experience as aprison chaplain that there are too manywho come to the attention of the court andare subject to the sanctions of the criminallaw because such other social systems ashousing, health (especially mental health)or education have failed them.Custodial sentencing is a central partof our current criminal legal system. It isan area where, in particular, there havebeen steady advances over time in termsof clarity and rationality in sentencing, inrespect for the rights and well being ofprisoners, and in working to develop moreeffective alternatives.Stuart Rowland.When he was askedin Matthew’s Gospelwhat was the greatestcommandment of the lawJesus replied, “You mustlove the Lord your Godwith all your heart, with allyour soul and with all yourmind.” Then he emphasisedthe communal dimension.In Catholic social teaching the foundationalprinciple of human dignity recognisesthat each human person is made inthe image and likeness of God. Again thisin turn gives rise to a social dimension, thesecond basic principle of Catholic socialteaching, the notion of common good. Theprinciple of common good acknowledgesthat my human dignity meets your humandignity and that a series of rights and obligationsemerge that are to apply to all inthe community setting.So our behaviour towards one anotherand our ways of relating are vital to thefull human flourishing of individuals andJustice Tracey, Kevin Andrews andPatrick Sweeney.again by Mel Gibson in his recent film“Apocalypto”. Lawyers and those associatedwith the legal profession are centralto the effective operation of this civilisingsystem.But orderliness and due process arenot of themselves sufficient to deliver asociety that enables all to thrive. Justice— fairness — is of central importance.And lawyers are also often better placedthan others to identify the opportunitiesfor improvement in the operation of theinstitutions and rules that maintain therule of law.Understanding of rights and obligation;But it remains an area of great humansuffering, where many of the commonlyaccepted and shared objectives for thoseimprisoned are not met.It is not a matter of being hard or softon crime — there is plenty of evidencethat more, or longer or harsher prisonsentences do not reduce crime. The issueis whether we are effectively addressingthe collection of needs of the society andof the individuals involved.Koori courts, drug courts, communitylegal centres, non-custodial sentencinggenerally, effective education within prisons,and so on all do make a difference.There may be a short-term dollar cost butin the longer term proper formation andthe creation of opportunities for disadvantagedindividuals and groups will beless expensive in both public dollars andhuman misery.The faith and salvation of each of us isnot just played out as individuals, but asindividuals who have a role in the com-53

munity — with friends, family and asmembers of a profession.Lawyers, while they have the samerange of personal obligations that we allshare, do encounter a particular range ofopportunities, challenges and obligations.Your patron saint, St Thomas More, isrecorded by his son-in-law William Roper,as putting the just application of the lawabove personal assessments:this one thing I assure thee on my faith, thatif the parties will at my hand call for justice,then were it my father stood on the one sideand the devil on the other side (his causebeing good) the devil should have right. 2Clearly the effective and just applicationof the law is a matter of morality andis in the interests of us all.So too is the broader call to work forjustice and for those who are the poorest.But orderliness anddue process are not ofthemselves sufficientto deliver a society thatenables all to thrive.Justice — fairness — is ofcentral importance.This work is not always directly advancedin the drafting of particular documents, orthe advocating or considering of particularcases. But the understanding gainedfrom that work can and should inform thatbroader understanding, and the appropriateaction in that sphere.We also see many examples of lawyers,as with other professional people, andothers with special talents, using theirprofessional skills to advance the activityof schools, hospitals, community serviceorganisations, or those needy individualswho are not in the position to pay forservices.I am highly aware of the great amountof effective pro bono work on behalf ofindividuals and the organisations thatserve them. The society owes the membersof the legal profession a great debtfor this work, and the Catholic communityhas perhaps benefited disproportionatelyin this area.Finally I invite you to hear the wordsof today’s reading from St Paul to theEphesians as your own and as we embarkon a new legal year I offer those words asa blessing to each of you:Justice Cavanough, Chris Melis, Judge Frances Hogan, Justice Elizabeth Curtinand Judge Frank Dyett.54

Most Reverend Denis Hart DD,Archbishop of Melbourne; StuartRowland; Anthony Krohn and DanielMcGlon.Justice Cavanough, Simon Crawfordand Justice Bongiorno.May the God of our Lord Jesus Christ, theFather of glory, give you a spirit of wisdomand perception of what is revealed, to bringyou to full knowledge of him.May he enlighten the eyes of your mindso that you can see what hope his call holdsfor you, what rich glories he has promisedthe saints will inherit, and how infinitelygreat is the power that he has exercised foryou. (Ephesians 2:17–19)Gerard Meehan, Reverend John Caddy, Judge McInerney and Róisín Annesley.Notes1. Cormac McCarthy; The Road, Picador 2006.2. William Roper, The Life of Sir ThomasMore.55

News and ViewsJewish ObservanceThe East MelbourneHebrew CongregationAddress by Rabbi Shamir CaplanESTEEMED Judges, barristers, membersof the legal profession, representingthe State Government MrTony Lupton, representing the OppositionMr David Davis, Rabbi Heilbron, synagoguePresident Danny Segal, welcometo everyone present today. Thank you forcoming this morning to East MelbourneHebrew Congregation. On behalf of theboard, I would especially like to thankKliger Partners and Madgwicks for theirgenerous sponsorship of the morning teain our social hall, to which everyone isinvited following the service.Moments ago, we read together from apassage in Deuteronomy, in which Mosesreminds the Jewish People that they areto utilize judges — to establish a courtsystem — who are to decide justly inthe popular disputes presented to them.The book of Deuteronomy itself is in factlargely Moses’ recapitulation of the eventsand teachings contained in the past fourbooks of the Torah.And it so happens that the establishmentof this system of judges that Mosesis referring to in Deuteronomy is firstmentioned in Exodus; indeed, the publicTorah reading two weeks from now willinclude these very verses.And when you read that section ofExodus, you realize two surprising things.First, the concept of establishing a judicialsystem in the Torah isn’t explicitly attributedto God. It didn’t even come fromMoses, the Giver of the Law. Chapter 18tells us that Yitro/Jethro, Moses’ fatherin-law,who in point of fact was a paganpriest, is the one who conceived of thisinnovation. And Moses, and his people,accepted this suggestion, because, asour sages teach us, we must accept truthwhen we are presented with it, regardlessof its source. And further, by implication,this passage takes for granted that thereis profound truth in the world around56Rabbi Shamir Caplan.us, taught by people other than our coreligionists,that we can and should learnfrom. In countless ways, the Torah expectsof us a deep sensitivity and respect for theOther. Given the news these past fewweeks, I humbly submit that clerics of allstripes would do well to remember thismessage.And so, Jethro tells his son-in-lawMoses, who has just led his people fromtheir terrible slavery in Egypt, you arenot doing the right thing. Your people arecoming to you — the whole nation turnsto you — to resolve their differences, tohelp them understand the practical applicationsof the divine law. And it’s simplytoo much for you. Find worthy judgesfrom among your people, prepare themwell, let them adjudicate. And if there areissues that they cannot resolve, let thembe referred to you, the “ultimate appellatecourt”, for after all you, Moses, are the onewho received the revelation of the divinelaw originally.This sounds like very practicaladvice on effective client management.Wonderful! But ladies and gentleman, wehave a problem. Because this conversationbetween Jethro and Moses takes place afew pages before we read about the revelationitself! Jethro is telling Moses howto efficiently adjudicate the law, beforethe law exists. Moses only receives theTen Commandments, the beginning of therevelation of the Torah, two chapters after

George Golvan QCVivien Lewenberg.Lydia Kinda.Kingsley Davis.Tom Danos.The Honourable JusticeMandie.Judge Lewitan. Hamish Rotstein. Simone Jacobson. Justice Kaye and lawstudent Nasiya Morris.57

this conversation!Some Biblical commentators explainthis anomaly by saying that the conversationwith Jethro and Moses actually tookplace “after” the revelation of the TenCommandments, and in this instance,the Biblical narrative is not in chronologicalorder. Which begs the question, whyis it that the Torah needs to locate thisconversation before the giving of the TenCommandments?Perhaps the message is this: before wecan speak meaningfully about the lawsthemselves, we must first clarify how theyare to be given real expression; how thelaw is to be systematically applied in reallife. Without a means of bringing the lawto the people, the law itself cannot live.And what’s more, it cannot rely onone person, however well-intentioned.What is called for is a judiciary, a systemof legal adjudication. And by establishingthis thousands of years ago, the Torah isemphasizing that Jewish law is based onprinciples, not personalities.Not that the Torah is suggesting thatMoses would project his personality intohis role as law-giver and judge. Rather, itis simply underlining a vital notion, onethat is definitional to law itself – that is,that law must be based on principles, notpersonalities … not the personalities ofthe judges, nor of the accused. The ruleof law is the means of building a stableand civil society. One need only read theopening passages of the constitutions ofthe Victorian Bar, or the Law Council, tosee that this notion is well-ensconced inthe legal psyche of Australia.And Judaism recognizes this truth notjust “within” the Jewish legal framework,but within civil society as well. The primaryexpression of this idea is the rabbinicdictum, Dina d’Malchuta Dina, thatis, the law of the civil authority has Jewishlegal import. In other words, to be a trulydevout Jew, one must also follow the lawsof the civil authority. So, paying your taxesessentially becomes a religious exercise!One wonders what the ATO would dowith that!And by extension, this means that thework of those assembled here today inthe legal profession, as you strive to fairlypresent people’s cases to the best of yourabilities, or when you work to adjudicatejustly, then your work is holy work.And while the civil year has just begun,we await another New Year’s Day thisSaturday, which marks the Festival of Tub’ Shevat, the Jewish New Year for thetrees. It is with that in mind that I quotethe famous teaching of R’ Elazar benJustice Habersberger and PhillipSheezle of Rigby Cooke.Joshua Kohn, Rabbi Shamir Caplan and Deborah Mandie.Azariah, in the Chapters of our Fathers,who used to say:Anyone whose wisdom exceeds his gooddeeds, to what is he likened? To a treewhose branches are numerous but whoseroots are few; then the wind comes anduproots it and turns it upside down, as itis said in Jeremiah “and he shall be like anisolated tree in an arid land and shall notsee when good comes; he shall dwell onparched soil in the wilderness, on a saltedland, uninhabited.” But one whose gooddeeds exceed his wisdom, to what is he likened?To a tree whose branches are few butwhose roots are numerous; even if all thewinds in the world were to come and blowagainst it, they could not budge it from itsplace; as it is said (also in Jeremiah) “Andhe shall be like a tree planted by waters,toward the stream spreading its roots, andit shall not notice the heat’s arrival, and itsfoliage shall be fresh; in the year of droughtit shall not worry, nor shall it cease fromyielding fruit.”Indeed, while wisdom is of course acrucial part of the picture, it must betranslated into action. It is our good deeds— our constant striving to apply the wisdomof the law justly and fairly to peoplein their real lives — that establishes themost profound roots in our society, thatyields the sweetest fruit. May we beblessed to humbly go about our business,and to always sense the sacred nature ofour work … and may our strivings for justicealways bear fruit. Amen.58

News and ViewsBuddhist ObservanceThe Fo Guang Yuan Art GalleryTHE Buddhist ceremony this yearwas the third of its kind and isunique to Melbourne.The ceremony was in the temple ofthe Fo Guang Yuan art gallery in QueenStreet, which is a wonderful space andan amazing art gallery. There is also awonderful kitchen that serves vegetariancuisine at lunchtime.The shrine room at the top of buildingwas used for the ceremony.There was chanting, a reading of theHeart Sutra, an opening prayer fromMaster Hsing Yun and guided meditationfrom the Venerables Young Wei and MiaoLai, who are both connected to the temple.Their tradition is the Buddha LightInternational Association, a Chinese traditionin Buddhism.Participants were also given theunique opportunity to ask questions ofthe Venerable Miao Lai.An engaging Dharma talk was given bythe Venerable Chi Kwang Sumim aroundthe subject of justice and what that meansfrom a Buddhist perspective. She is from aKorean tradition of Buddhism.Everyone left the ceremony calmer,filled with tea and beautiful sweets andwith a gift from the Fo Guang YuanTemple.Venerable Young Wei, Venerable Chi Kwang and Venerable Miao Lei.59

News and ViewsNew Legal Year Launched in SBrilliant sunshine and hot cups of coffee greetedmore than 400 people in Hardware Lane early onthe morning of 30 January at a celebration to markthe start of the legal year.THE Legal Laneway Breakfast,formerly “Portia’s Breakfast”, isnow one of the biggest and mostinclusive networking events of the legalcalendar. Victoria Law Foundationhosted the successful event withAustralian Women Lawyers, VictorianEqual Opportunity and Human RightsCommission, Judicial College of Victoria,Legal Services Board, Leo CussenInstitute, LIV Young Lawyers’ Section,Sentencing Advisory Council, VictorianLaw Reform Commission, VictorianWomen Lawyers, Women Barristers’Association and Women’s Legal ServiceVictoria.Julian Gardner, Public Advocate,Office of the Public Advocate, and DrHelen Szoke, Chief Executive Officer,Victorian Equal Opportunity andHuman Rights CommissionSue Tait, Manager Complaints, Officeof Police Integrity, Michael McGarvie,CEO, Supreme Court of Victoria, andHis Honour Judge Grant, President,Children’s Court of Victoria.60The Honourable Justice Neave AO andElizabeth Bennett, Associate to JusticeNeave, Court of Appeal, SupremeCourt of Victoria and Professor MoragFraser AM, Board Member, VictoriaLaw Foundation.His Honour Judge Grant, President,Children’s Court of Victoria, ProfessorKathy Laster, Executive Director,Victoria Law Foundation, MickFrancis, CEO, and Chief MagistrateGray of the Magistrates’ Court ofVictoria.A who’s who of the legal sector attendedthe breakfast, including most heads ofjurisdiction, members of all courts, headsof legal sector agencies, judges, solicitors,barristers, government lawyers andacademics. The lively scene provided thebackdrop for a live cross from The LawReport on Radio National.Guest speaker her Honour JusticeMarcia Neave congratulated Victoria LawFoundation for its pioneering work in makingthe law accessible for 40 years, andlaunched a new pocket-sized edition ofthe Foundation’s Legal Precinct Map. Theannual raffle raised over $700 for Women’sLegal Service Victoria and featured prizesgenerously donated by local businesses,including a night for two at the Sebel Hotelwith breakfast at Treasury Restaurant.

unny Laneway TraditionPaul Lacava S.C., Council Member,Junior Vice-Chairman, The VictorianBar Inc. and Board Member VictoriaLaw Foundation, draws the raffle withhelp from Justitia, aka Lorin Clarke ofVictoria Law Foundation. Over $700was raised for Women’s Legal ServiceVictoria (WLSV).Dan Perkins, Lawyer, Corrs ChambersWestgarth, Jamie Gardiner, VictorianEqual Opportunity and Human RightsCommission, and Matt Drummond,Journalist, Australian FinancialReview.Katherine Wynn, student intern at theSentencing Advisory Council helpingpass round the delicious Brunetticakes.The Honourable Justice Neave AO,Court of Appeal, Supreme Court ofVictoria, addresses the crowd at theLegal Laneway Breakfast 2007.Michael Brett Young, CEO, LawInstitute of Victoria, and Kerry O’Shea,Manager, Communications, LegalServices Board.61

News and ViewsNew Silks’ Ceremony inHigh Court of AustraliaTim Margetts S.C.On 29 January 200712 of the 13 Victoriansilks appointed on 28November 2006 tooktheir bows upon theannouncement of theirappointment before theHigh Court.BY early afternoon, many who hadtravelled up earlier in the day hadgathered in the Garden TerraceRestaurant of the Hyatt Canberra forsome “light” refreshment before the formalitiescommenced. Time moved quicklyand around 2.30 pm all counsel madetheir move to the High Court robing roomwhich, for many of us, was a first experience(and possibly the last!).Whilst robing, we met some of ourcolleagues from New South Wales andQueensland who, like all of us, were abit uncertain how the afternoon wouldunfold, but unanimously “relieved” thatwe had not been given “speaking” roles.The Victorians were also somewhatchallenged by our counterparts from NewSouth Wales and Queensland who robedin their full bottomed wigs.We were ushered into the High Courtand took up our nominated seating,which for the Victorians was behind thenew silks from New South Wales andQueensland. At this time, our Chairman,Mr Michael Shand QC, emphasised thatthe rosettes (a Victorian tradition) weremuch more becoming than a full bottomedwig and indeed far less expensive. We allfelt better, having been reminded of theeconomic implications of the different wigand robing traditions.The announcement of the appointmentsof Queen’s Counsel and SeniorBack row: Michael Shand, Ian Martindale, Mark Gamble, Christopher Caleo,James Mighell, Anthony Kelly.Front row): Mark Taft, James Montgomery, Jane Dixon, Timothy Margetts,Richard Smith, Matthew Connock.Counsel by the Chairman of the respectiveBars proceeded smoothly, there being oneQueen’s Counsel from the State of SouthAustralia who wore no wig. Chief JusticeGleeson, on behalf of all the membersof the Court, congratulated the newlyappointed Senior Counsel and made ashort speech noting that the announcementof the new silks in the High Courtat the commencement of the law termhad come about with the developmentof a national bar, and the ceremonial sittingitself signified the national characterof the legal profession. The Chief Justicetouched briefly upon the debate currentlyreceiving some attention in the media overthe process of selection of Senior Counsel.After the Chief Justice’s address the Courtwas adjourned and a reception was heldin the foyer of the High Court. Cheese andtomato sandwiches and French pastrieswere in abundance, as well as Australiansparkling wine!The new silks from all States were not62

News and Viewsgiven much time to enjoy the hospitalityas photo sessions were hastily arrangedand organised by the ABA and other StateBar Associations. As some preferred theafternoon tea and champagne, the photographerhad trouble getting togetherall the new silks, but eventually everyonemade it to the steps for the group photos.Kindly, some of the appointees fromNSW and Queensland offered to lendtheir full bottomed wigs to the Victoriansfor the photos, but we graciouslydeclined.After the photo session and the reception,most of the appointees and theirguests headed back to the Hyatt Canberra,hoping for a swim in the pool, as by thistime it was very hot. Unfortunately wateraerobics were underway, and I think it isfair to say no one wanted to join the class,although a few of us could have clearlybenefited from the exercise.In the early evening, we headed backto the High Court for the dinner in theGreat Hall. As most of us were not driving,the dinner progressed in a mostrelaxed manner. Speeches were made bythe past and incoming presidents of theABA. The Honourable Justice CallinanAC, who was made a lifetime member ofthe ABA that evening, proposed the toastto the new silks, and the Queensland DPP,Ms Leanne Clare S.C. responded, focusingher speech on the role of the DPP inQueensland and the need for independence.After the dinner concluded we allslowly made our way back to the HyattHotel and to the Garden Terrace Bar,where the day had begun many hours ago.At this time some of our colleagues fromNew South Wales and Queensland joinedus, but for the first time the new silks fromVictoria out-numbered our counterpartsfrom the other States. The celebrationscontinued for some hours, but not withoutchallenging moments, the least ofwhich being that the hotel closed the barat about midnight. Fortunately, throughintense negotiation with the hotel management,agreement was reached for theongoing supply of drinks until the nightcame to a halt, when the last few standing,to use a term recently used in the debateabout the silk selection process, “retiredhurt”.The EssoignWine ReportBy Andrew N. BristowBERESFORD SHIRAZ 2004BERESFORD Wines was establishedin 1985 by Rob Dundon.Rob Dundon is the chief winemakerwho commenced his winemakingcareer in 1974 with the Hardy WineCompany in McLaren Vale and goingon to form Beresford Wines in 1985Rob’s uncompromising dedicationto winemaking has become histrademark.Working with Rob is ScottMcIntosh. Scot learned his craft inthe McLarenVale at MaglieriWines.Winestatemagazine inits May 2006edition ratedthe wine withfive stars andsaid: “Greatwine with anattractive, complex and stylish nose.Super palate with lovely softness.Has length, complexity and intensityof lip-smacking black cherry flavoursand quality toasty oak.”This wine’s bouquet exhibitstypical McLaren Vale shiraz aromas ofpepper, spice and dark berries.The wine colour is a deep dark redwith a touch of purple.The palate is soft, juicy, lusciousdark berries with spicy charactersand subtle ground black pepper. Thefinish is long with a lingering finish ofwell-balanced oak and fruit with anexcellent tannin balance. Althoughdrinking well now, this is a wine withaging potential. It has 14.0 per centalcohol. It should be drinking well forat least the next four to eight years.It is available from the Essoign Clubat $32.00 a bottle or $7.50 a glass (or$27.20 takeaway).I would rate this wine as middlingbarrister with good prospects, able todo a Supreme Court cause if calledupon, but not given the opportunityoften enough.63

News and ViewsWomen Barristers Talk:Hearts and Minds, theNext StepSpeech by the Honourable Justice Marcia Neave AOat the WBA Anniversary Dinner held on Thursday23 November 2006.THANK you so much for inviting meto speak at the Women Barristers’Dinner. This is the second time Ihave had that honour. Although I wasnever a barrister I have been involvedwith the Women Barristers’ Associationin many ways in the past. In 1998 I wasa member of the Steering Committeechaired by Justice Stephen Charles, whichoversaw the production of the Report onEquality of Opportunity for Women at theBar.That Report interviewed women barristersabout their experiences, examinedthe briefing practices of law firms and collectedstatistics on women barristers inthe superior courts. It provides a valuableyardstick for measuring the progress ofwomen at the Victorian Bar over the pasteight years.In my speech at the 2001 WomenBarristers’ dinner I looked at the waysin which the historical over-representationof men in the legal profession hadshaped the nature of law and the waysthe law had, in turn, reflected and shapedsocial attitudes about the role of men andwomen. I argued that law traditionallyreflected the perception and reality of menand that women’s disadvantaged positionin society was unlikely to be recognisedand addressed by law unless there weresignificant increases in the number ofwomen at senior levels in the profession,including women judicial officers, seniorpractitioners and law reformers.The Attorney-General was present atthe Women Barristers’ dinner in 2001,when I argued for the appointment ofgreater numbers of women judges. I canassure you that it never entered my mind64then that I might be considered for judicialoffice myself. I want to congratulate himon the improvements to the gender balanceof the judiciary which have occurredover the past five years.Ten years ago Justice RosemaryBalmford, whom we are honouringtonight, was the only woman SupremeCourt judge in Victoria. Today nearly 15per cent of Supreme Court judges, 1 35 percent of County Court judges 2 and 34.26per cent of magistrates are women. 3 Theimprovements in Victoria may be contrastedwith the rather disappointing figuresfor the federal magistracy, to whichonly 18.5 per cent of women have beenappointed since that judicial office wasestablished in 1999. 4Other figures about the composition ofthe legal profession are less encouraging.For some years now 50 per cent or more oflaw graduates have been women, but thisis not reflected in the gender compositionof the Bar or of law firms at senior levels.It is ironic that the proportion of womenbarristers (21 per cent) 5 is now lower thanthe proportion of women County Courtjudges and magistrates. The majority ofBar Readers in the last intake were men.I also note that only 7 per cent of silks arewomen. 6 These figures may have declineda little because of recent appointments tothe Bench, but they are very low.The recently released GenderAppearance Survey, 7 indicates unsurprisinglythat women make up a minority ofthe counsel appearing before any judicialofficer. There is also evidence that theparticipation of women has declined inmore senior or complex matters. Evenmore disturbing was the finding that inthe Federal Court, the average length ofhearing for a male who was junior to seniorcounsel was 223.6 hours, whereas fora female junior counsel in the same position,it was 1.4 hours.Unfortunately we still see relativelyfew women barristers in the Court ofAppeal, and very often they do not havespeaking parts, although those who do areextremely capable.A recent report by the Law Institute ofVictoria 8 surveyed firms of different sizesto determine their composition and workinghours. Large firms were more likely tohave women partners, but proportionallylarge firms did not have more womenpartners than small firms. Of the 39 firmswith between four and 20 partners, onlytwo firms had three women partners andno firm had more than three. The Reportconcluded “women at partnership levelin Victorian firms are a minority”. In thecommercial arena the world looks a littlebrighter for women. It was reported inLawyers Weekly that while there wereslightly fewer women working in-house, 9than in firms, 30 per cent of senior positionsin-house were held by women. 10The figures I referred to above are notpeculiar to the legal profession. For feminists,academics and activists who haveworked on issues of gender equality formany years, they are part of a familiar pattern.Women have certainly made somegains, but improvements are patchy andwomen still face significant obstacles in anumber of areas.On the one hand women are clearlybetter off than we were 50 years ago.Women are now more prominent participantsin political life and civil society,

Judge Judith Cohen, Justice Rosemary Balmford and Justice Marcia Neave.although the majority of senior positionsin academia, the law and commerce andindustry are still occupied by men. Thisyear the enactment of the VictorianCharter of Rights and Responsibilitiesformally recognised the right to equalitybefore the law. The Equal OpportunityAct makes it unlawful to discriminatein areas such as education, employmentand the provision of goods and serviceson the grounds of gender, pregnancy andmarital status. The criminal law principleswhich treated women as unreliable witnessesin sex offence cases were repealedmany years ago. Recent reforms to sexualoffences laws based on recommendationsmade by the Victorian Law ReformCommission will make it less stressful forcomplainants in sexual offence cases togive evidence. 11 Violent men who kill theirpartners are no longer able to rely on thepartial excuse of provocation. 12 The highincidence and terrible human cost of familyviolence is better recognised and thereare now more remedies for women whoare assaulted by their partners.On the other hand there is still a substantialgap between the rhetoric and thereality of gender equality, both at the Barand in the broader workforce. Comparedto many other women, barristers are awell educated and privileged group, butthe patterns of gender segmentationwhich exist in the general workforce areapparent at the Bar, where women areunder-represented in the senior ranks ofthe profession. While I do not have figureson the comparative earnings of male andfemale barristers, I think it is highly likelythat women barristers generally earn lessthan their brothers. Again this reproducesthe position of women in the broader community.Women barristers, like their sisters inother parts of the workforce, still find itdifficult to achieve a satisfactory balancebetween family and work responsibilities,particularly if they are single parents.In the general community women areover-represented among victims of familyviolence and sexual assault. Familyviolence is not a class-based phenomenonand I would be prepared to bet that thereare some women at the Bar who have hadto deal with this issue personally. Manyyears ago I participated in a seminar onfamily violence attended by a numberwomen who were senior members of thelegal profession. After the seminar I wastold by three women present that theyhad been the victims of violence earlierin their lives.The issues which women barristersconfront reflect the strategic dilemmasfaced by women in the whole community.Broadly the question we need to consideris “Where do we go from here”?At this point in history we may beapproaching the outer limits of the lawas an instrument for improving the livesof women.Areas where legislative reform is obviouslyneeded have been identified andlargely addressed. Apart from industrialrelations changes which make it easier forwomen to combine paid work and familyresponsibilities — which are not on thehorizon at the moment — I do not thinkthat legislative reform is likely to deliversignificant gains for women in the future.Procedural and administrative changescan also improve the position of women— particularly women from disadvantagedsections of the community. The changesto procedures in sex offence cases and theestablishment of specialist family violencecourts are recent examples. But again Ithink that such changes will have limitedcapacity to address the complex questionsof gender inequality which are likely toarise in the future.Common law changes have alsoimproved the position of women in thepast. Developments of constructivetrusts principles to enable women in defacto relationships to claim an interest inproperty owned by their partner are oneexample of doctrinal changes which havebenefited women. Another was the abandonmentof the common law principle thata man cannot rape his wife, which surviveduntil 1991. 13 Though courts are notlaw reform bodies, the changing compositionof the judiciary is likely to result inbetter understanding of how rules whichare apparently gender neutral may have adifferent impact on men and women.In the past women looked to lawreform to improve their position. I haveargued that legislative changes and commonlaw developments are now less likely65

to provide answers to the problems thatyoung women are likely to confront in thefuture. We now need to think about themore subtle strategies which may help tochange the hearts and minds of both menand women in the area of gender. Hencethe title of this talk.How do we consolidate past successesand make further improvements?Although there are no simple answers tothis question, I want to talk about fourinter-related strategies which may beuseful to women in general and to womenbarristers in particular. These are:• focusing on cultural and institutionalchange;• cultivating allies;• the importance of leadership; and• the importance of women supportingwomen.66FOCUSING ON CULTURAL ANDINSTITUTIONAL CHANGEThe first strategy requires us to identifyinstitutions and practices in the legal professionand at the Bar which reinforce thestructures of gender and to think abouthow they can be changed. I recently rereadLord Woolf’s report on civil procedurereforms which emphasises the needto win the hearts and minds of practitionersif the huge machine of the civil justicesystem was to be re-calibrated. Gender isa much more entrenched institution thanthe civil justice system and it will take acorrespondingly greater effort to disturbthe pre-conceptions that exist about theappropriate roles of men and women.To deal with issues of culture I thinkit is important to look at both the cultureof masculinity and the culture ofthe legal profession. There is now a largeand fascinating research literature on thetopic of the culture of masculinity, whichmy associate and I have had great funreading. Unfortunately I could not quitedecide how to work in quotes from an articlecalled “Why Marcia, You’ve Changed!Male Clerical Temporary WorkersDoing Masculinity in a FeminisedOccupation.” 14Research on masculinity and workshows that when women begin to enteran area of work in significant numbers,what is seen as men’s and women’s work isredefined. Throughout history men havetended to vacate a field of work whenlarger numbers of women begin to enterit and to find new areas which they candefine as their own. As a result womentend to be segregated into the less prestigiousand well paid areas of the particularprofession or occupation. This pattern isRuth Hamnett, Fiona Ryan and FionaForsythe.already apparent in Law Schools, where Ipredict that the majority of legal academicswill eventually be women.An entertaining example of this phenomenonis described in Joan Eveline’swork on the changes which occurred inthe Western Australian mining industry.When women started to get jobs drivingheavy machinery, which was previouslyseen as “a man’s job” men began to takeon heavier and dirtier tasks, and drivingbig machines came to be seen as a task forwomen. 15It may be worth thinking aboutwhether a similar pattern exists in thelegal profession and at the Bar. In lawfirms my impression is that some youngmale lawyers now see working very longhours as a mark of masculinity, in thesame way that doing dirty work become adefining feature of masculinity in the miningindustry. Young women lawyers oftenadopt these patterns for a time, but I havethe impression from a group of women Ihave recently mentored that, in the longterm, this may well drive them out of privatepractice.The literature I have referred to abovesuggests that women barristers needto think about whether their increasingnumbers have led to the re-emergenceof patterns of gender differentiation. Forexample, are women seen as more suitedto opinion work or to the less lucrativeareas of practice? Do they tend to getbriefed in particular areas such as propertylaw or family law? What is it aboutthe culture of the Bar which results inyoung male barristers having more accessto speaking roles in court than youngwomen? If so how can these patterns ofgender differentiation be changed.CULTIVATING ALLIESIn order to create cultural change it isessential for men and women to worktogether.Many successful women speak of thehelp and support they were given byAnne Sheehan and Caroline Kirton.peers at early stages of their career. In mycase it was at Ron Sackville, now JusticeSackville’s suggestion, that we wrote aproperty law text together. Although hewas only a little more senior than I was,his support gave me the confidence to putmy foot on the first step of the academicladder.Sadly some men in the communitysee themselves as being harmed by theimproved status of women. Discussionof the difficulties which face womenbarristers and women in the workforcesometimes produces hostile or scepticalresponses from men. I was struck by arecent example. In my recent speech atthe Bar Readers’ Dinner, which did notdeal with gender issues at all, I made theoff-the-cuff remark that it was probablystill harder for women barristers than formen to balance work and family responsibilities.A man at the next table muttered,(not particularly sotto voce) “rubbish”. Ifthat response is representative of viewsheld by some men at the Bar, women stillhave a long way to go.When I spoke to women barristers in2001, I referred to Deborah Rhode’s workin the United States, which argued thatthe first step towards gender equality isto convince those in power that thereis actually a problem. Many barristersacknowledge the practical and structuraldifficulties faced by women at the Bar.I think it would be a useful strategy toconvince them to articulate their supportand contribute their advocacy to women’scauses.There are other small ways in whichmale barristers can support women.Most of us have been in situations wherea member of a group makes a racist,homophobic or anti-Semitic comment.I think that many of us are prepared tosay that we object to such comments. Itseems to me to be less common for men toreact adversely to misogynous remarks orcomments which denigrate the achievementsof women barristers. I don’t recall

any American men speaking up whenArnold Schwarzenegger chided his politicalenemies by calling them “economicgirlie-men”. 16 We need to persuade thosewho are sympathetic to women’s causes tospeak up when necessary.On a more serious note, this is alreadyhappening in the world outside the law,where attempts are being made to enlistmen who abhor violence in the causeof reducing violence against women.Saturday is Stop Violence against WomenDay. Its great to see more men this yearwearing white ribbons.If we are making alliances with men itmay also be useful to draw attention tothe areas in which men have benefitedbecause women have placed issues on theagenda. Men are likely to benefit if thereis greater flexibility in working hours; menmay also benefit from a culture whichencourages them to balance the joys ofwork with the joys of family life.Women should be reminding men thatwe are not seeking to pole vault over thembut to create an environment of equality,which benefits us all.ENCOURAGING LEADERSHIP.My third strategy focuses on the importanceof leadership in working towardsgender equality at the Bar and in thebroader community.Research done in the 1980s by ProfessorFay Gale shows that women are morelikely to succeed in universities in whichVice-Chancellor and senior Professors arecommitted to gender equality. 17 Similarfindings have been made in the corporateworld, where the support provided bysenior managers can change workplacedynamics and ensure that women’s talentsare recognised and developed. As a younglegal academic I was very grateful for thementoring and support provided to me bysome senior legal academics. Initially all ofthem were men, but as more women wereappointed to Chairs I also received somesupport from women.The Bar, of course, does not work likea university or a commercial entity. Itsstructures are more diffuse and individualised.Nevertheless there are both maleand female leaders at the Bar who arewidely respected and who have the capacityto provide leadership on gender issues.The Bar Council made an excellent startby commissioning its 1998 “Report onEquality of Opportunity For Women” atthe Bar. It needs to keep up that momentum.I note the presence here of both menand women who have given importantleadership in the area of gender equality.THE IMPORTANCE OF WOMENSUPPORTING WOMENI have already spoken of the important rolethat allies and peers can play in breakingdown gender stereotypes and encouragingindividuals to make the best of theirtalents. When women first moved intoareas which were previously monopolisedby men it was common for them to takeon masculine colouration. Unfortunatelythis sometimes made it difficult forthem to support their female colleagues,for fear of being seen as different or incapable.While this attitude was understandable,I hope it no longer exists. One ofthe purposes of the Women Barristers’Association is to provide that support. Itis interesting, therefore, that I have heardsome women lawyers question the needfor a distinct organisation for women.In their view, we have now reached theposition where we can afford to be genderblind. I do not agree with that view. I congratulateand support the work done bythe Women Barristers’ Association providingsupport for its members.In 1998 Neil Young (as he was then)Chairman of the Bar Council wrote tothe Steering Committee of the Projecton Equality of Opportunity for Women atthe Victorian Bar, to Justice Charles, whochaired that Committee, to thank us forour work. In the letter he said that:the research findings indicate that womengenerally find it more difficult to gain entryto, and support from, the mainstream ofthe Bar. This difficulty may have significanteffects for individuals in terms of recognition,work satisfaction and success.This was written by the then Chairmanof the Bar Council just over seven yearsago. Though things have improved forwomen barristers, there is still room forchange.I cannot conclude this speech withoutsaying a few words about the HonourableRosemary Balmford. Another speakerwill be talking about her career at somelength, but I would like to briefly paytribute to her achievements (I hope shedoes not mind me referring to her asRosemary). When I was at Melbourne LawSchool Rosemary had a reputation as anexcellent teacher.American research shows that womenjudicial officers often have differentcareer paths from male judges. Rosemarypractised as a solicitor and was a seniormember of the federal AAT, before shewas appointed to the Supreme Court.Her success helped to demonstrate thatpractice as a barrister is not an essentialrequirement for judicial appointment.It blazed a trail for many other womenwho have now become judicial officers.We should all be grateful for Rosemary’soutstanding example.Notes1. According to figures available on the VictorianSupreme Court website.2. According to figures available on theCounty Court website3. According to figures provided by the Magistrates’Court.4. According to figures available on the FederalMagistrates’ court website.5. According to the Victorian Bar website.6. According to the Victorian Bar website.7. This survey did not cover Victoria.8. Bendable or Expendable? Practices andattitudes towards work flexibility inVictoria’s biggest legal employers. LawInstitute of Victoria, 2006.9. Forty-five percent of in-house lawyerswere women, as opposed to 52 per cent ofprivate practice lawyers.10. Harpley, K, “Women in House”, LawyersWeekly 2006.11. Sexual Offences: Final Report, VictorianLaw Reform Commission, August 2004, theimplementation of which led to a series ofreforms, including the amendments in theCrimes (Sexual Offences) Act 2006.12. Defences to Homicide: Final Report, VictorianLaw Reform Commission, November2004, resulting in a number of legislativeamendments in the Crimes (Homicide)Act 2005.13. The Australian authority is R v L (1991)103 ALR 577. In England the rule was abolishedby R v R [1991] 2 WLR 1065.14. Henderson, K.D., Rogers, J.K. Genderand Society Vol 15, No 2 (April 2001) pp.218–238.15. “Gender and Sexuality in Discourses ofManagerial Control: The Case of WomenMiners” in Gender, Work and OrganizationVol 9, No 5, November 2002.16. Speech by California Gov. ArnoldSchwarzenegger Tuesday, August 31,2004, cited http://www.cnn.com/2004/ALLPOLITICS/08/31/gop.schwarzenegger.transcript/.17. This work was expanded upon at theUniversity of Western Australia. See forexample “Creating Opportunities: AnEvaluation Of The Leadership DevelopmentFor Women Programme 1994–1997”University of Western Australia, cited http://www.osds.uwa.edu.au/about/activities/ldw/successes/evaluation/opportunities/.67

News and Views/A Bit About WordsIssueTHE dominant meaning of issue ischanging. It is now commonly usedto mean problem or difficulty. Itis common, and mildly irritating, to hearotherwise well-spoken people say “I havean issue with the way he is treating me”or “He has personality issues”. It hasemerged as a euphemism: it is less confrontingthan problem, especially in thephrase personality issues.Issue has many meanings, but problemwas not one of them, at least until veryrecently. As a noun, the principal meaningsof issue are:• the action of going, passing, or flowingout• a place or means of egress• outgoing; termination• a discharge of blood or other matterfrom the body• offspring, progeny• produce, proceeds; profits arising fromlands or tenements• that which proceeds from any source;the outcome or product of any practiceor condition• the outcome of an action or course ofproceedings• a point or matter in contention betweentwo parties• the action of sending or giving out officiallyor publicly; an emission of bills ofexchange, shares, etc.• the set number or amount (of coins,notes, stamps, copies of a newspaper,books and periodicals, etc.) issued atone time, or distinguished in some wayfrom those issued at another time.As a verb, the principle meanings are:• to come forth (“I did never know so fulla voice issue from so empty a heart”Shakespeare, Henry V Part I, 4: iv)• to proceed as an outcome (“And of thysons that shall issue from thee, whichthou shalt beget, shall they take away;and they shall be eunuchs in the palaceof the King of Babylon”: King JamesVersion of the Bible, 2 Kings 20:18)• to be published (“His Majesty didresolve to Summon a great Council ofall the Peers, and commanded Writs toissue out accordingly”)• (as a transitive verb) to give or sendout authoritatively or officially; to sendforth or deal out in a formal or publicmanner.68This last sense is the commonest. So,government agencies issue passports,licences, permits, etc.The notion of a thing being producedas the result of an earlier process is inherentin most senses of issue, as verb and asnoun. Oddly, this is the sense that is nowdisappearing from the noun, although itsurvives intact in the verb.One principal use of the noun is a pointor matter in contention between two parties.This meaning of the word has a specificallylegal background. It emerged fromthe system of pleadings. The OED gives itas “The point in question, at the conclusionof the pleadings between contendingparties in an action, when one side affirmsand the other denies”. Despite this arcanebeginning, this has become the commonestintended sense.The idea of “a point of contention” maybe the reason for the emergence of thenew sense. A point at issue can also bea problem; often it is. Take the followingrecent headlines from the ABC’s website:• Drugs in sport a hard issue to tackle.• Depression: A medical or social issue.• The north faces a weighty issue.• Wheat export issue divides growers.• But raising this almost-taboo subjectfor public discussion at this week’sconference can only lead to a betterunderstanding of this disturbing issue.In most, if not all, of these examplesit makes equal sense to understand thereference as problem rather than pointfor debate.But recourse to recent dictionariesconfirms our fears (and vindicates theABC website, Kath & Kim, and all otherswho like the new meaning). Thecurrent edition of the Compact OxfordDictionary has, as its first definition ofissue: “an important topic for debate orresolution”. It refers to the phrase makean issue of as meaning to treat too seriouslyor as a problem.The Encarta Dictionary gives as itsdefinition: “subject of concern: somethingfor discussion or of general concern; mainsubject: the central or most importanttopic in a discussion or debate”.The Merriam-Webster Dictionaryrecognizes problem as one of the meaningsof issue. Older and larger dictionariesgive this meaning less prominence.The American Heritage Dictionaryacknowledges the new meaning also: itsfifth definition is: a personal problem oremotional disorder.The Cambridge Advanced Learners’Dictionary is slightly more conservative:it acknowledges problem as an availablemeaning, when issues (plural) is used. Itgives as examples:All the people in the study had low selfesteemand had issues with their bodies.Anna has major issues with her employer.The Cambridge Dictionary ofAmerican English is at once more adventurousand more restrained. It appears toacknowledge that the singular form hasshifted meaning, but does not quite takethe change to its full extent:“Issue”: a subject or problem that peopleare thinking and talking aboutThere continues to be a great dealof debate over the abortion issue.Isn’t the need to hire more staff what’sreally at issue here (= the subject of thedisagreement)?I like my hair this way, I don’t see whyyou have to make an issue of it (= causeit to be a problem).The new meaning can fairly be said tohave established its place in our language.The earlier, original meaning of issueis outcome or product. Thus, Aphra Behnin Rover (1677): “That what to you doeseasy seem, and plain, Is the hard issueof their labouring Brain.” And Dickens inDavid Copperfield: “Of course my auntwas immediately made acquainted withthe successful issue of the conference,and with all that had been said and donein the course of it.”It is surprising that this sense of issuehas almost disappeared, because thenotion of coming forth is present in mostother meanings of the noun. So, a shareissue and an issue of a magazine areboth current usages; and issue as a verbalways refers to a thing being produced.Tom Paine wrote: “By perseveranceand fortitude we have the prospect of aglorious issue; by cowardice and submission,the sad choice of a variety of evils…” (The American Crisis, 1790). That

sentence would not be written today, andwould be understood properly by only afew readers.In Modern English Usage, Fowlerprotested that the construction “to issuea person with a thing” was not to be recommended.He gives the example “Thecompany was issued with two gas masksper man” and observed that the constructionwas “not to be recommended”.Presumably, although Fowler does notenlarge on the point, his objection wasthat, where issue is used as a transitiveverb, the direct object of the verb shouldbe the thing which is issued, not theperson to whom it is issued. Little did heknow how trivial his complaint would lookto later readers. Despite that small quibble,issue as a verb has remained true toits origins. Perhaps we can look forwardto the time when to say “Don’t issue that”will mean “Don’t make that into a problem”.I hope not: I really would have anissue with that.Julian BurnsideVIP Breakfast with MajorMoriLaura MacIntyreOVER 200 legal VIPs includingjudges, senior members of the Barand heads of legal sector agencieswere in attendance at the State Libraryof Victoria on Friday 2 March for breakfastwith Major Mori. Appointed by theUnited States Department of Defence inNovember 2003, Mori has since becomea prominent critic of the military commissionsset up to try Guantanamo Baydetainees.Alexandra Richards QC, Victoria LawFoundation Board Member, chaired theevent with The Honourable Rob Hulls MP,Attorney-General of Victoria, introducingMajor Mori, and describing him as a manof “guts, imagination, supreme energy andoptimism … in pursuit of a just cause, notonly in the interest of a client, but of justiceitself”.“Major Mori embodies the finest ofthe legal profession, and reminds us thatit is both a privilege and a vocation,” theAttorney-General said.The morning of the breakfast was ahectic one for Mori, as it coincided withthe announcement of revised chargeagainst his client, Australian GuantanamoBay detainee David Hicks. Hicks, who hasalready served five years in detention, hasnow been charged with material supportof terrorism. A prior charge for attemptedmurder was dropped by the military commission.Major Mori stressed that he could notcomment on the import of the new chargewithout first speaking to his client, but didoffer his own opinion about the impact ofthe decision, “Today could be one stepLex Lasry, Rob Hulls, AlexandraRichards and Major Mori.closer to another unfair trial for DavidHicks. Hopefully Australia will stop relyingon assurances from the US government,and start to make decisions on itsown,” he said.The session, presented by VictoriaLaw Foundation in partnership withVictorian Equal Opportunity and HumanRights Commission, offered a uniqueprofessional development opportunity tomembers of the judiciary and senior legalprofessionals. The presentation gave afirst hand insight into the Hicks case andits wider legal, social and political ramifications.The Major began with an overviewof conditions faced by David Hicksin detention, and went on to describe thelegal and political obstacles he has facedthus far in his campaign to secure a fairtrial for his client.The level of interest amongst theattendees was high, and a sea of handswent up during the brief question andanswer session. Former Chief JusticeProfessor John Phillips AC opened,enquiring about the reaction of theAmerican legal profession to the case.Mori reported that despite vocal opposition,input from senior members of theAmerican legal profession had been largelyexcluded by the operation of the MilitaryCommission Act 2006. In response to afollow-up question regarding wider publicopinion, Mori stressed that since the Actaffords American citizens immunity fromcharges of the kind laid against Hicks, thecase had a relatively low public profile inthe United States.Major Mori was quick to respond toqueries about a possible plea bargain:“Well, first we need a real offence. Hecan’t plead guilty to something that is nota crime. David Hicks has already pleadednot guilty — he was never offered theGodfather deal.” Mori also expressedconcern for his client’s mental andphysical health if he remains in solitarydetention: “He [Hicks] needs to get out ofGuantanamo.”The breakfast was one of only two publicappearances by Major Mori in Victoria.It followed on from a public lecture at theUniversity of Ballarat, held as part of theFoundations’ firm commitment to promotingregional access to legal information.More than 700 members of the local communityattended the lecture. Ballarat haspreviously taken centre stage in the ongoingcampaign to raise awareness about thecase. In 2004, the Eureka Dawn LanternWalk was dedicated to remembrance ofDavid Hicks in its 152nd Anniversaryyear.69

News and ViewsProtecting Rights in aClimate of FearThe following speech was delivered by Julian Burnside QC on 13 December2006 as the Equal Opportunity Commission’s Sixth Annual Oration.IN a climate of fear, protection ofhuman rights becomes extraordinarilydifficult. It brings to the forefront thetension between the majoritarian principleof democratic rule and the humanitarianprinciple of protecting the powerlessand marginalised. In that setting, protectionof human rights presents its greatestchallenges.The maintenance of civil libertiesdepends on the delicate balancebetween the government’s authority andits self-restraint. That balance will becompromised if any of three conditionsare satisfied. The first is when the politicalopposition is either weak or absent.The second is when the press is weak orcompliant. And the third is when the lifeof the nation is at risk from civil disturbanceor external threat (whether real orimagined). The first two conditions haveexisted in Australia in varying degreesfor a decade. The third was delivered onSeptember 11, 2001.The terrorist attack on the UnitedStates was shocking. It transfixed theworld as the Twin Towers exploded andcollapsed in a giant cloud. The nightmareimage of the second plane finding its targetmay be the defining image of this newcentury.The response of western governmentsto September 11 might be the definingcharacteristic of the twenty-first century.Adequate protection of human rightsdepends on a number of things. First,Parliament must exercise restraint in legislatingwhere human rights are affected.They should recognize that human rightsare a basic assumption in democraticsystems, and that majoritarian rule doesnot justify the mistreatment of unpopularminorities.In the wake of September 11, ASIO’spowers have been greatly increased. Theynow have power to hold a person incommunicadofor a week, and force them toanswer questions on pain of five years’ jail.70Julian Burnside QC.The person need not be suspected of anyoffence.The Federal Police now have powerto obtain a secret order jailing a personfor up to a fortnight, without a trial andwithout the person having committed anyoffence. They can obtain a secret controlorder, placing a person under house arrestfor up to 12 months without access to telephoneor internet. In each case, the personaffected by the order is not allowedto know the evidence against them.These laws betray the most fundamentalassumptions of a democratic society.The protection of human rights alsodepends on the executive showingrestraint and decency in administeringlaws which have the potential toaffect human rights. In this, the HowardGovernment has a miserable record, arecord made all the worse by their hypocriticalmaundering about “family values”and a “fair go”.The idea of a fair go was nowhere tobe seen when Mr Ruddock instructed theDepartment of Immigration to argue thecase of Al Kateb. Mr Al Kateb had arrivedin Australia seeking asylum. He was heldin immigration detention. He was refuseda protection visa. He asked to be removedfrom Australia, because he found theWoomera detention centre unbearable.Unfortunately, he could not be removedbecause he is stateless — there is nocountry in the world to which he could bereturned. The Migration Act provides thata person who comes to Australia withouta visa must be detained and must remainin detention until they get a visa or untilthey are removed from Australia. This isthe mandatory detention regime. Peopleheld in detention have not committedany offence: they are held in high securityjails because an Act of Parliament ordersit.What of Mr Al Kateb? They refusedhim a visa, but could not remove himfrom Australia. The “fair go” HowardGovernment argued that Mr Al Katebcould be held in detention for the rest ofhis life if necessary. That argument wasfound by the High Court to be legally correctand constitutionally valid.It is deeply shocking that any governmentin a western democracy is preparedto argue for the right to jail a person forlife without trial, and without suspicionof any offence. If nothing else about theHoward Government is remembered, let italways be remembered that they arguedfor the right to jail an innocent person forlife.Family values cannot be reconciledwith the indefinite detention of refugeefamilies in conditions which drive childrento attempt suicide.ASIO has vast powers and seeks, whereverpossible, to avoid any scrutiny of itsactivity by Courts. Mahommad Sagar hasbeen held on Nauru by Australia for fiveyears, even though Australian officialsaccept that he is a refugee. He has beenadversely assessed by ASIO, and they

efuse to tell him why. They argue thatthey should not have to reveal to him— or to anyone — what facts they tookinto account in deciding to assess himadversely. Although ASIO refuse to tellany other government why they haveadversely assessed Mohammad Sagar,Sweden has agreed to receive him. Theirdecision is an eloquent recognition of boththe cruelty and the stupidity of Australia’sposition.The protection of human rights alsodepends on the public remaining awareof the importance of human rights tothe health of our democracy. It is easyto support the idea of human rightsfor ourselves, our family and friends,our neighbours and so on. It is lesseasy to stand up for the rights of theunpopular, the marginal, those we fear orhate.Public sentiment about locking upinnocent men, women and children indetention centres has shifted over thepast few years. But the trigger for changewas the revelation that Cornelia Rau hadbeen wrongfully held in detention forabout a year. Public outrage seemed toreflect the perception that she was one of“us”, not one of “them”. Her rights matteredbut, by implication, the rights of theothers in detention did not.Mr Ruddock made himself popular duringthe 2001 election campaign by vilifyingrefugees. He created a climate in whichthey were seen — quite wrongly — as athreat to the community. When Howardand Ruddock lied about the so-called childrenoverboard affair, when they used thelanguage of “border protection” to justifythe Pacific Solution, they deliberately createda climate in which the public wereable to think that asylum seekers werepeople whose human rights did not countif we wanted to stay safe.That sort of thinking — so easily influencedby governments — is profoundlydangerous to the cause of human rights.The Howard Government has abandonedDavid Hicks. Several things areclear about the Hicks case. First, he is notalleged to have hurt anyone at all. Second,he has not broken the law of Australia,USA or Afghanistan. Third, the most seriousallegation against him is that, fightingwith the Taliban (then the lawful governmentof Afghanistan) he pointed a gun inthe direction of an invading force, as theAmerican troops were. It is not allegedthat he fired at them. Fourth, he has spentfive years in Guantanamo Bay, mostly insolitary confinement. Fifth, the treatmenthe has been subjected to in Guantanamobreaches the Geneva Convention concerningthe treatment of prisoners of war andit breaches Australian and US standardsfor the treatment of criminal suspects.Hicks now faces the prospect of a trialin front of a military tribunal which eventhe prosecutors have acknowledged willnot be a fair trial. Howard, Ruddock andDowner remain supremely unconcernedabout Hicks’ fate. They have done nothingat all to help him.The conduct of the HowardGovernment is impossible to reconcilewith the values and assumptions whichare basic to our democratic system. Byencouraging a climate of fear, the governmenthas greatly expanded its ownpowers at the cost of individual rightsand freedoms. By exploiting the climateof fear, the Government has been able toengage in terrible abuses of human rightswhich would not otherwise be tolerated,but they pass without complaint as “borderprotection” or the war on terror.The basic values of our democracy, sohard won, are always at risk. In a speechin Boston on 28 January 1852 WendellPhillips said:Eternal vigilance is the price of liberty— power is ever stealing from the many tothe few ... The hand entrusted with powerbecomes … the necessary enemy of thepeople. Only by continual oversight canthe democrat in office be prevented fromhardening into a despot …He might have been speaking of theHoward Government.The Victorian Government has beguna move in the opposite direction by passingthe The Charter of Human Rightsand Responsibilities. Whilst the Chartercannot affect Federal laws, it serves asa timely reminder that human rightsare fundamental. The Charter will affectthe way legislators and bureaucrats goabout their work; it will give the courtsthe power to identify legislation whichbreaches basic human rights and have theParliament consider whether it wishes topersist in those breaches. Its most powerfuleffect is that it puts the assumption ofhuman rights to the forefront: they will nolonger be an optional extra. In addition,it serves as an important reminder thathuman rights are for all people, not justour friends and family. The unpopular,the unworthy, the feared and despisedare also entitled to be treated as humanbeings, because they are.What is needed however is a FederalCharter of Rights. The major human rightsabuses in Australia are committed by theFederal Government: indefinite detentionof asylum seekers, even though they havecommitted no offence; secret jail orders;secret control orders; secret hearingsin which a person’s fate can be blightedforever.In December 2004 the House of Lordsdecided a case concerning UK anti-terroristlaws which allow terror suspectsto be held without trial indefinitely. By amajority of 8 to 1 they held that the lawimpermissibly breached the democraticright to liberty.Lord Hoffman said:The real threat to the life of the nation …comes not from terrorism but from lawssuch as these.The Law Lords recognised what thepublic have forgotten: that human rightsexist for the protection of everyone, and indoing so they also protect our basic values.When Howard or his ministers murmurcomforting words about values, they arelying. The case of Mr al Kateb, and DavidHicks; the treatment of Cornelia Rau andthe victims of the Pacific Solution and thehundreds of refugee children in detentioncamps: all these things tell you whatsort of people Howard and his ministersare. If they can mistreat one unpopulargroup, they will mistreat another, andanother.It is a matter of regret that the firstlaw officer of the country is a personwhose grasp of legal basics has been soblunted by politics. Ideally, the Attorney-General should try to ensure that law andjustice are synonymous. The possibilityof innocent people being held in executivedetention for life is something MrRuddock argued for. Asylum seekers heldin detention can be subjected to solitaryconfinement: not by virtue of any regulations,but at the whim of the executivegovernment through its private prisonoperator. Mr Ruddock has supported thissystem. All asylum seekers held in immigrationdetention are liable for the cost oftheir own detention, even if they are ultimatelyfound to be refugees. Mr Ruddockhas actively supported this.The laws which permit these things arenot merely unjust. They are a disgrace tothe nation and a stain on our history. MrRuddock still wears the badge of AmnestyInternational. Such open hypocrisy diminishesthe high office he occupies.Do not wait until it is your turn. Humanrights matter, especially in a climate offear.71

News and ViewsChildren’s Christmas PartyBotanical Gardens, 10 December 2006IF anybody wants to organise an outdoorparty on a date when it’s guaranteedto be hot, and not rain, thenco-ordinate your date with that of theBar Childrens’ Christmas Party. Year afteryear after year, Santa has trudged into theBotanical Gardens in sweltering conditions.But this year’s Christmas Party tookthe prize for hot weather.It was 42 degrees, and heavy bushfiresmoke enshrouded the BotanicalGardens. Out of this sweltering hazeemerged Santa Claus lugging a large sackfor the eager throng of barristers’ childrenwho languidly lazed in the shadows of theTennyson lawn deep in the bowels of theGardens.The RSPCA had quarantined the reindeer.It was cruel to expect animals to beabout on a smoke-laden 42 degree day,decreed the animal inspectors. Althoughthe conditions did not prevent multifariousmembers of the Bar and their offspringcongregating to celebrate a whiteChristmas. Santa’s bobsleigh had beenseconded for an air-conditioned shoppingcentre opening on that day. So how was heto travel the long distance from Gate C onAnderson Street to the far flung lakes andgrassy inclines of the Tennyson lawns?Wil Alstergren, the overburdenedorganiser of this stellar event, wasstumped. The Botanical Gardens’ staffrefused to transport Santa in their golfcart because no insurance company wouldcover the risk of Santa melting in the heatand causing a nasty pile up.But Wil had a brainwave. He wouldborrow a blue Porche and organise hisson Finn to drive Santa into the Gardens.Thus father and son became Elf and ChiefElf on this momentous occasion. SantaClaus was rather shocked, though, whenhe found out that Finn was five years ofage. He was quickly replaced at the wheelof the Boxster by his father.Bureaucracy is the bane of the existenceof all Christmas parties. So it wasthat a Botanical Gardens security guardapproached a now sopping Santa standingin a blue Porche at a locked Gate C of theGardens. The guard announced that he72The Bar and its children.could not give much assistance becausehe was due to attend a large wedding inanother far flung corner of this domain.After threats of mandatory injunctionsand Anton Pillar orders the guard eventuallyunlocked the gate, and Santa proceededat a veritable pace through thewinding tracks that ensnared the clumpsof bougainvillea and fig trees. Donutswere done on the lawn. Japanese touristsscreeched with joy at the sight of a largered man throwing lolly bags into the air.Cameras snapped as he headed off intothe distance, intoning “Happy Christmas”in Japanese.The Porche shuddered to a halt, almosthurtling the standing Santa into thecrowd of children who enshrouded thenow steaming vehicle. Children graspedSanta’s hand as he strode to the shade ofthe trees, his helpers lugging large bags oftoys for the children.Children jumped into the air to catchthe bags of lollies. But many were brushedaside by eager adults keen to savour jellybeans, freckles and smarties on the pretencethat they needed them for theirother children at home. As the pictureson these pages testify the heat was noimpediment to the joy of the childrenpresent. Myriad presents were grasped,the coloured paper torn asunder and, usually,cries of delight ensued. Parents wereoffered new clerks, new fee books and achange of jurisdiction to cheer them upfor the coming year.Santa’s body was encased by ice packsbut to no avail. As the afternoon wore onhe began to shrink. After the presentshad been given he endeavoured to leave.But each parent insisted on an individualphotographic portrait of their child withSanta. Eventually his helpers side by sideescorted him back to Gate C, the bluePorche having been repossessed.Some of the more cosmopolitan

Santa arrives in his Porsche.Santa waves.The children throng.Lollies are thrown.A fairy receives her present.Santa and the Alstergrens.Santa and the Simpsons.parents suggested that Santa and hisfriends should retire for refreshments atthe other Botanical. Santa feebly agreedthat a glass of mulled wine might dosomething to revive his spirits. And so itwas that Father Christmas entered theportals of the Botanical Hotel. He managedto devour a few cooling lagers beforebureaucracy struck again. A securityguard appeared and said that the hotel didnot tolerate people who looked like theywere one of the Village People. The guardwas not embued with Christmas spirit andasked Mr Claus to exit. It was only aftermany pleas were made on his behalf bythe skilled barristers surrounding him thathe was allowed to remain and endeavourto regain the many litres of fluid lost in thejoy of giving. But to this day many of thosepresent in the Botanical Hotel believethat it was the Village People who hadattended on that day and not the embodimentof St Nicholas.Santa and the Freckeltons.The Bar Children’s Christmas Partywould not be possible without a lot ofhard work put in by many members ofthe Bar and the staff of the Bar. In particularWil Alstergren should be thanked,together with his wife Kate, who spenthours putting the lolly bags together.Santa and friends.Santa departs.Denise and Mel from the Bar Counciloffice spent much time organising parkingpermits and placating the bureaucracyof the Botanical Gardens. Finally GillianElliott was extremely helpful in assistingher Santa Claus with the heavy bags oftoys.73

Sport/TennisBar Takes Tennis TrophyHat TrickFOR the first time ever in the 39 yearhistory of the competition betweenthe Bench & Bar against the LawInstitute for the O’Driscoll Cup, namedafter the late Judge J.X. O’Driscoll, theBench & Bar team has succeeded in winningthe Cup for three consecutive years.In earlier times it was a struggle for the B& B team to just win the occasional match,as testified by the string of LIV successesengraved on the trophy.This new streak of competitivenessquite coincidentally coincides with themigration of Patrick Montgomery fromthe LIV ranks to those of the Bar. Whereasthe previous B & B strategy was to choosebunnies to blunt the LIV’s strong “A” sectionattack, and concentrate our forceson the Institute’s rather longish “tail” inthe “B” section, we now can put forwardgenuine firepower to match and blunt theInstitute’s premier shock troops, whilestill maintaining a concentrated attack onits rather longish “tail”.Thus Patrick and his new (in thiscompetition at least) partner, MichaelO’Bryan, won two of their sets againstthe Institute’s stars, lowering their coloursonly to the perennial Institute sharpshooters,Peter Mayberry and Mark da Silva.Even there, our stars managed to breakMayberry’s serve, “the first time this hadbeen done since 1978” as our man confidentlyasserted in his post-match pressconference. As usual, we have includedthe compulsory photograph of our manin action, so he can satisfy his family thathis career at the Bar is indeed progressingin stellar fashion. Autographed enlargementsare available from the editors forhis many fans.Michael O’Bryan made a very worthydebut, lending valuable support to Patrick.We hope to see more of Michael in futurematches. Also strong in an even “A” contingentwere John Simpson and JonathonRedwood, while Tom Danos and HowardMason were valiant contributors to theBar’s cause against tough competition.The stars of the day, however, wereTed Fennessey and John Goetz. ThoughTed’s hairs grow a little greyer each year,Chris Thomson accepting the O’Driscoll trophy on behalf of the Bar, flanked byPat Montgomery, Peter Boyle (LIV) (both standing), John Simpson, John Goetzand Jake Fronistas.Simon Tisher.his guile and tenacity are not in the leastdiminished. This year he was ably backedup by John Goetz, and the dynamic duowon all four of their sets in “B” sectionwhich led to their selection as the winnersHoward Mason.of the second perpetual trophy awardedat these events, the Flatman–Smith trophyfor the best-performed pair. Thisis the fourth year of this prize, struckto commemorate the passing in close74

succession of two sadly missed stalwartsof the competition, their Honours JusticeGeoff Flatman and Judge Tony Smith.Mention should also be made of otherstout defenders of the Bar’s reputation, allof whom won at least one set and so madea material contribution to our win: RichardSmith, exhibiting his new silken outfit,and prevailing despite the hindrance ofhis partner, this very unworthy scribe;Christine Boyle, making her maiden andvery much appreciated appearance; JakeFronistas, a man with history at this event;and the very capable duo of Ben Lindnerand Simon Tisher.The event was, as always, a most enjoyableoccasion, naturally rendered thatmuch more exciting by our remarkabletriumphs. Peter Mayberry, LIV captain,was, as always, extremely gracious inhis remarks in handing over the trophy.Kooyong provided its usual marvellousbackdrop, with fine weather and grasscourts in excellent condition, as well as afine environment on the terrace to enjoypost-match conviviality.Thanks to Danos and Smith for againassisting with team recruitment and selection,and to the editors of this august productionfor supplying the photographer torecord for you, dear readers, as well as forposterity, a visual record of this momentousoccasion.Chris ThomsonTed Fennessey.John Simpson.Price and Gaylard (LIV).Peter Mayberry (captain,LIV).“T C” Teoh (LIV) Will Mulholland (LIV)Lucinda Murdoch (LIV).Chris Thomson incustomary pose (pity hisresults don’t always matchthe effort!)Bar team.Christine Boyle, Jon Redwood, Jake Fronistas, Howard Mason, RichardSmith, Tom Danos, John Goetz, John Simpson, Chris Thomson, Pat Montgomery,Michael O’Bryan.Ted Fennessey and John Goetz,winners of the Flatman-Smith trophyfor the best-performed pair.75

Sport/YachtingWigs & Gowns Regatta18 December 2006THE twentieth Wigs & GownsRegatta was held in perfect conditionson Hobsons Bay on 18December 2006.A light south westerly provided theperfect breeze for all participants to enjoythe cruise in company. A course was setfrom Hobson’s Bay south east into thechannel and north down to Station Pierwhere yachts rounded a mark and werethen close hauled to the finish line set offthe Royal Yacht Club of Victoria’s marina.Race officials, handicap committeeand the press enjoyed a spectacularview of the start from the committeevessel Argo. Line honours went to JohnDigby QC aboard his 42ft masthead sloopAranui. At a press conference followingthe event, Digby put the success downto tight crew work and hours of preparation.A somewhat shortened course wasrequired for Judge E.C.S. Campbell in hisOughtred designed canoe-sterned ketchRosa-Jean.After returning to shore, participantsendured a tense wait whilst the handicapcommittee met to assess final placings.Andrew Green, Bruce Cameron, Brian McCullagh John Davis and MichaelSimon aboard Charisma — recipients of the 2006 Neil McPhee Trophy.Paul Lawrie and crew aboardEasybeat.76The Frank Walsh Perpetual Trophywas awarded to Julian Smibert and PaulO’Dwyer S.C. sailing Coranto, a Clansman30.The Thorsen Perpetual Trophy wasawarded to Paul Lawrie sailing Easybeat,a Sonata 6, the smallest boat in the fleet.Andrew Green sailing his 33ft WilliamGarden sloop Charisma was awarded theNeil McPhee Trophy.Next year is hoped to be bigger andbetter again — participating is winning!James MighellCharisma (foreground) and Aranui onPort Tack.

Paul Lawrie and crew with the Thorsen Trophy awarded for the 21st time.Peter Rattray QC, Melanie Sloss S.C. and James Mighell S.C. watch on as AndrewGreen receives the Neil McPhee Perpetual Trophy for 2006.Judge E.C.S. Campbell and crew hardat work aboard Rosa Jean.77

Lawyer’s BookshelfContract Law inAustralia (5th Edn,2006)By Carter, Peden and TolhurstIT is always a pleasure to see a new editionof a significant and well regardedlegal text come onto the market. The fifthedition of Contract Law in Australia isno exception.This latest edition continues the style,content and format of previous editions,although it is noted that some chaptershave been shortened for the ease of useof law teachers and reference by practitioners.Two new chapters appear in thetext, namely “Good Faith” (chapter 2)and “Assignment of Contractual Rights”(chapter 17).The text, at 991 pages including theindex, is as comprehensive as its predecessors.The inclusion by the publishers(whether intentionally or otherwise) of 10utterly blank pages after the index is presumablyto facilitate the creation and useof crib notes by students. This innovationis to be commended and encouraged in allfuture publications from Butterworths.The fact that the text itself is wellover 950 pages in length does make thisreviewer wonder how on earth a text ofsuch breadth and depth can be a usefultool for students in the modern law schoolcurricula where Contract Law (ContractLite?) is taught in a one-semester tsunamiof cases, principles and so-called Socraticdialogue.Whilst the modern trend to shortercourses on such foundation subjects is tobe rightly deplored, this is not the fault ofthe authors or the publisher but it doeslead one to ask about the identity of theaudience the book is intended to reach.In this reviewer’s not so humble opinion,the book is now of such a respectablevintage (it’s been around for over 21years) the authors can rightly claim it asprimarily a practitioner text and should,after the style of Chitty, produce onlyclothbound versions. The reviewer’s copy(although freely acquired and gratefullyaccepted) is softcover, which somehowjust doesn’t have the gravitas that thebook would otherwise convey as a hardbackversion strategically laid on the Bartable in front of an appellate bench.This reviewer would like to see anextension to the introductory chapterwhere it addresses the jurisprudentialunderpinnings of the law of contract (contractualpromises are, after all, the only78way in which we are able to predict thefuture) and a discussion of the good faithprinciples from an historical perspective(would the great common lawyers of thepast such as Lords Blackburn and Jesselhave countenanced the brutal Hobbesianapproach towards an overarching doctrineof good faith adopted by the VictorianCourt of Appeal in Esso AustraliaResources Pty Ltd v Southern PacificPetroleum NL & Ors [2005]VSCA 228.The additional chapter on assignmentof contractual rights should be compulsoryre-reading for all practitioners under75 years of age. This reviewer is drivento constant distraction by the number ofcontracts that come across his desk withclauses that recite the ability of the nonregalparties to assign contractual rightsand liabilities.The reviewer was disappointed to seethat there is no reference to the statutoryregime that controls and qualifies domesticconstruction contracts in Victoria, butthen again you can’t cover everything ina volume of general principles. Perhapsthere is a market for a second volumedealing with specific contracts, again ala Chitty.All in all this is a splendid volume andwell worth its place in chambers or withineasy reach of the busy solicitor’s desk.The Law of InsiderTrading in AustraliaNeil McPheeBy Gregory Lyon andJean J du PlessisThe Federation Press, 2005Pp. v–204, Bibliography 205–212,Index 213–218THE Law of Insider Trading inAustralia is principally an analysisof the legislative provisions in theCorporations Act 2001 (Cth) which prohibitinsider trading.The authors deal first with the complexcharacter and operation of the prohibition,including an examination of key elementssuch as who is an “insider”, what is“inside information” and when is information“generally available”. The range ofdefences and exceptions to the prohibitionis then examined, noting that nonehas been judicially tested. The authorsthen consider the criminal penalties andcivil remedies for proven breaches of theinsider trading provisions, with particularfocus on the relatively recent availabilityof civil penalties. The final chapter dealswith the difficulties of enforcement andthe inter-relationship between insidertrading and continuous disclosure.The text includes a very useful appendixof Australian civil and criminal insidertrading cases to which can now be addedthe decision of the NSW Court of CriminalAppeal in Hannes v DPP delivered on 24November 2006 (2006) NSWCCA 373.The appendix highlights the relatively fewprosecutions and civil proceedings thathave been instituted in this area.The exposition is detailed and systematicand brings together key conceptsessential to an understanding of this areaof the law. It also addresses the fundamentalquestions of whether Australia’s insidertrading laws are necessary, desirable andeffective.The authors display an authoritativecommand of their subject. This comprehensivework will be an essentialreference point for those prosecuting ordefending insider trading cases and thosewith an academic interest in the area.P.W. Almond QCMagna Carta LectureTHE Society was represented at the2006 Magna Carta Lecture, hostedjointly by the British High Commissionand the Honourable J.J. Spigelman, AC,Chief Justice of NSW, at the Banco Court,Sydney, on 13 September. The lecture wasdelivered by Lord Falconer of Thoroton,the Lord Chancellor, on the topic: TheRole of Judges in a Modern Democracy.This annual series of lectures was inauguratedin 2002 by the British Governmentand forms part of a program of significantsupport it gave to celebrations markingthe Centenary of Federation in 2001.This also included a generous donationto an Australia–Britain Society projectthat culminated in the commissioningthat year of a monument to Magna Cartaset in a parkland site to the west of OldParliament House in Canberra and nowdesignated “Magna Carta Place”.In some preliminary remarks beforedelivering the lecture, Lord Falconercommented that he was the first LordChancellor in 1,100 years to visit Australiawhile England held the Ashes.Copies can be made available electronicallyon request to the Executive Officeron e-mail mblongstaff@ozemail.com.au.