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Australian Capital Territory Bar Association Newsletter
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President's Message


For the Bar Association it has been a busy start to the year and, on a personal level, a very interesting one.  I attended two ceremonial sittings of the High Court on 30 January 2017. The first was the swearing in of the High Court’s new Chief Justice Susan Kiefel AC. Her Honour’s legal career has been one of great achievement and it is an inspiring story.  Her Honour left school at age 15.  Her Honour worked as a legal secretary before going to the Bar in 1975 at the age of only 21.  Her Honour was one of the few women at the Bar.  Her Honour read for the Master of Laws at Cambridge in the 1984-85.  Her Honour took silk in 1987 the first woman in Queensland to do so.  In 1993, Her Honour was appointed to the Supreme Court of Queensland the first woman to be a judge of that Court. The following year she was appointed to the Federal Court in 1994 and to the High Court in 2007.  Those who heard Her Honour speak at her swearing in and at the silk’s dinner the following evening were left in no doubt that this record of achievement will continue in her time as the Chief Justice.
 
Members will get a chance to meet Her Honour at the Bench and Bar dinner later in the year.  
 
His Honour Justice James Edelman was sworn in the same day. Although only 43, His Honour’s CV is daunting.  In 2001 Justice Edelman was called to the Western Australia Bar and in 2008 the Bar of England and Wales. His Honour has also lectured in law and was appointed Professor of the Law of Obligations at the University of Oxford in 2008. In 2011, Justice Edelman was appointed to the Supreme Court of Western Australia and was appointed to his current position as Judge of the Federal Court of Australia in April 2015. His Honour has a prodigious list of published books and articles. Given His Honour’s formidable intellect and the time he has to serve on the High Court bench, His Honour has the potential to influence jurisprudence in this country like few others. It was a salutary experience for those who attended his swearing in. The absolute silence in the robing room afterwards suggested I was not the only one wondering what I had done with my career! 

 
The bows ceremony for Australia’s new silks was the next day. The Australian Bar Association hosted the dinner for the new silks at the High Court that evening.  The occasion marked the end of the Presidency of Patrick O’Sullivan QC. Patrick has been a great leader of the Bar.  An intelligent, easy going and very decent man Patrick has provided great leadership on a number of important issues including indigenous incarceration rates. Patrick has been a loyal supporter of our Bar.  He is succeeded by Will Alstergren QC from the Victorian Bar.  We hope to have Will come to the Bench and Bar so we can introduce him to our members.  Will did great things with the organisation of the ABA’s Conference in Melbourne in 2016.
 
The dinner also saw the acknowledgement of the appointment of a number of people as Life Members of the Bar including – Philip Greenwood SC, Philip Selth OAM, Robert French AC and Kenneth Hayne AC.  Phil Selth has retired from his positions as CEO of the NSW Bar and CEO of the ABA.  He has been a good friend of the ACT Bar and his support has been appreciated.
 
The ceremony to mark the beginning of the Legal Year took place at the Supreme Court on 30 January 2017.  Her Honour the Chief Justice and the Attorney-General spoke to those who attended.  It was refreshing to hear both speakers speak so enthusiastically about importance of the rule of law, the independence of the judiciary and about reforms that will progress over the next year.  This includes the development of a drug court for the ACT.  I believe that the Attorney -General is deeply committed to ensuring our court system operates in an effective and just way.  He has spoken publicly about his support for the Aboriginal Legal Service and is concerned about the level of legal aid funding in the Territory.  I look forward to working with him in a constructive way during the year.
 
The ACT Bar’s website is now live. Thanks to our Executive Officer Jo Dean Ritchie for the work on the project to date.  Feedback is welcome.

The ABA has also refreshed its new website.  It has a lot of information about the National Bar and is always worth a look.  The ACT Bar Association is working with the ABA to have it’s members also listed on that site also.


Ken Archer
President
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Notes from the Editor



Farewell Parker


Those of us who knew Parker have our own stories concerning that association. My association I venture to express is probably typical of many others.

I first ‘met’ Parker over a glass of red wine with Wilcox. Parker had an infectious personality. You simply could not help but like him. He was a raconteur par excellence. His stories about himself and members of the Bench and Bar are legend. Parker almost immediately at commencement at the Bar was involved in ‘lunching and networking’ with solicitors and others. I was initially in a lunch group that involved Gallop J, Wilcox and Parker. It was a fearsome group to belong to. Parker had a constitution that was a combination between a bull elephant and a locomotive engine. He enjoyed his food, loved his red wine and revelled in companionship. He also enjoyed watching the Raiders and the Wallabies.  He was a man of fixed convictions.  A devoted father and loving husband to Barb.  He was a loyal friend.  At dinner parties he regaled the assembled with stories of his early courtship of Barb and his professional life.

He had a close and enduring relationship with Harper. He was Harper’s master when Harper was in pupillage and culminating with an unofficial farewell ceremony in Harper’s Court on Parker’s retirement.  His impact on the profession was profound. He had an enormous practice, justified by his skill and knowledge of personal injury and compensation matters. He was admired by his fellow barristers, the Supreme Court, the Magistrates Court and the practising solicitors who briefed him or opposed him. Our condolences go out to Barb and the family.

We shall all miss him.
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Congratulations
Justice David Mossop

The appointment of David Mossop to replace Justice Richard Refshauge is very much welcomed by the Bar and the profession generally. His Honour is not only popular but extremely well respected for his industry and intellect. I had the privilege to lead Justice Mossop in many interesting cases: in criminal matters (a murder), human rights matters, e.g. the Morro case; malfeasance in public office, i.e. a 10 year case wherein we acted for the eventual successful Russel Vance against the Commonwealth; medical negligence cases, e.g. Amanda Brown where the Court (Crispin P) sat all day Saturday and delivered a judgment 2 weeks before the death of the plaintiff; and various civil matters, e.g. we represented the ANU in the infamous ANU v Aon case after Justice Peter Garling handed back his brief. Our opponents were Justice Tony Meagher and the former Commonwealth Solicitor General Justin Gleeson. That case settled mainly because of the intellectual impact of Justice Mossop that provided the basis for the many interlocutory skirmishes. Needless to say His Honour provided the intellectual foundation for all the cases we had together. We spent countless hours working together at night and on weekends (with the Mossop children often in chambers patiently “playing” and waiting for their father). It was not uncommon for us to leave chambers after 11pm and start again at 7am. The usual “team” approach was that His Honour would say “I think we should run this argument" – and then he would provide a typed outline. I was totally spoilt. I have had many hardworking and competent juniors, but none to match the calibre of Justice Mossop.
 
His Honour has very definite views on social and political matters, but rarely expresses them. He has three wonderful children and a loving, supportive wife who has assisted him greatly when at the Bar and of course in his role at the Bench. His Honour is a prodigious bush walker, body surfer and swimmer and a passionate and powerful kayaker.
 
His Honour will undoubtedly serve the people of Canberra with distinction and hard work. We wish him many happy years on the Bench.
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Abolition of the Master

Now that Justice Mossop has been appointed to replace Justice Refshauge, the position of Master is vacant. When Terry Connolly, Alan Hogan and David Harper discharged the duties of Master there was a separate role for the Master recognised by statute (and still is).

True it is that the role of the Master has been evolving with more and more responsibilities such that, save for conducting criminal trials and sitting on the Court of Appeal, the primary role/function of the Master and the puisne judges is basically indistinguishable. The Master is, of course, paid less and has a “cheaper” superannuation package, so the Government in reality gets “another” judge on the cheap.

The time has now come to abolish the Master and have another judge. This would give the Chief Justice more flexibility and enable her to more efficiently administrate and run the Court.
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Overcoming

Indigenous Disadvantage

Nothing has been more depressing in my observations as a Barrister than to observe increasing incarceration rates and continuing deaths in custody of our Indigenous Australians. When I first joined the independent Bar at the end of 1979 I accepted briefs for the then Aboriginal Legal Aid Office, then stationed at Cowra and occupied by a friend of mine from Sydney University. The bailiwick extended into surrounding Western New South Wales and down to the South Coast. I was involved in that work until I started my Wollongong practice in 1983. Working with Aboriginal Legal Aid was very demanding and rewarding, but depressing in many ways. It is sad to realise that things are now worse rather than better. Now of course, the incarceration rates for young Indigenous women have gone through the roof. The 2016 OID report, however, shows some improvement in health, economic participation and some limited aspects of education. But over the last 11 years the national imprisonment rate has increased 77 per cent and there has been an increase in the rate of self harm. I do not pretend to know any answers, but in a wealthy, well-educated country like Australia we are clearly not doing enough and are failing our fellow Indigenous Australians. Retired Chief Justice Robert French said in an interview with Fairfax Media on 4 December 2016, that the incarceration rates were 'appalling'.

The Chief Justice supported constitutional recognition of Indigenous Australians and criticised mandatory sentencing laws which, he observed, played an important role in the increase of Indigenous incarceration rates, stating: 'It is a serious thing to enact a law that says everybody will be treated the same regardless of their level of culpability'. The ABA and all the individual Bars, including the ACT Bar, have always been against mandatory sentencing – but our political masters in many jurisdictions see this as a vote winner in the 'Law and Order' debate at election times. So a change in those laws does not appear to be occurring any time soon.



John Purnell
Editor
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Chief Justice Helen Murrell

I would like to thank those members of the Bar who joined the ACT Law Society and judges for the opening of the ACT law term. It is important to seize the opportunity to reflect on our roles and focus on what we want to achieve in the year ahead.

The law term opening ceremony was held early in the morning to accommodate the swearing in of Chief Justice Keifel. This historic event was described by one judicial member of the audience as “impeccable”. Chief Justice Keifel’s appointment means that, of the 12 members of the Council of Chief Justices of Australia and New Zealand, six are now women. Unfortunately, Australia wide, only about 10% of silk are women and the overall representation of women at the bar falls far short of what it should be.

Members will be aware that the ACT has called for expressions of interest in the position of Associate Justice of the ACT Supreme Court. I encourage members of the local profession to apply, particularly women. It is a demanding role, but one that provides enormous opportunity for professional challenge and personal satisfaction, working on a collegiate and forward looking bench.

As I mentioned in my opening of law term address, is the Court’s commitment to improving sentencing processes through the development of a Drug and Alcohol Court in the Supreme Court.  Such a court would address the sentencing objectives of rehabilitation and community protection by providing a strictly supervised, therapeutic environment that offered rehabilitation to Supreme Court offenders whose offending was linked to substance abuse and who would otherwise be imprisoned on a full-time basis. I am pleased to advise that Justice John Burns has agreed to convene a working party to bring together representatives of the partners who may ultimately form a DA Court team for the purpose of developing the model that best suits the ACT.

Members of the Bar will be aware of the new Court of Appeal procedures, which have just commenced. The changes are significant. We hope that they will result in a dramatic lessening of paperwork and an early focus on the key appeal issues. The changes will be reviewed. We are always pleased to receive feedback on how these and other Court processes are working. Feedback from the profession is vital to improving the Court’s processes.

The DA Court project and the new Court of Appeal procedures are only two of the Court’s current priorities. Other priorities are set out in our Strategic Statement, which can be found on the Court’s website.

The Judicial Council has been constituted and is now available to consider complaints against the judiciary, although the arrangements for administrative support are not yet finalised.

The new courts building work is progressing well. We are up to the ground floor, and the ground floor deck is now being installed.

I wish you all a happy and productive professional year and look forward to seeing you in court.

Chief Justice Helen Murrell
Supreme Court of the ACT
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ABA Update

Will Alstergren QC

PRESIDENT

It is a great honour and privilege to take on the role as President of the Australian Bar Association for 2017. As President of the ABA, I hope to continue the association’s great work to further promote the availability and quality of Australian barristers, and to act as a respected voice of reason and advocate for the wider community.

I would like to take the opportunity to thank Patrick O’Sullivan QC for his outstanding service as the 48th President of the ABA. Over the past 12 months, Patrick has overseen a transformation of our organisation, establishing a new secretariat which has made a dramatic difference to our effectiveness as the national representative of the independent bars of Australia.

The two major projects Patrick lead in 2016, investigating alternative funding models for legal aid and pushing for legislation changes to assist in the reduction of Indigenous incarceration rates, demonstrate Patrick’s passion to assist those in our legal system who are most in need. He has been steadfast in his commitment to reduce the level of Indigenous incarceration in Australia and it is a great testament to him that the Commonwealth Attorney General, Senator, the Hon George Brandis, invited the ABA to partner with the Government in the settlement of the Terms of Reference for the ALRC examination. ​ 

Like our former President, I too see a great need to address the country’s legal assistance funding crisis and will continue to focus on finding alternative practical solutions (without reducing the Governments obligations) to break the deadlock that exists. I aplaud the work done on by so many in the profession to encourage Government both State and Federral to increase funds. This includes the excellent efforts by the Independent Bars and the LCA. The frustration is that whilst there is universal agreement that more funding is needed especailly by the respective Attornies General and Shadow Attornies General there is little appitite by Governement to make this a priority.  To break this impasse both Government and the community has to be better educated on the direct and indirect effects of funding and the true importance of it on the community. Also, a new and inovative appraoch needs to be taken to encourage the provision of  increased funding. This will be the subject of an ABA specialist project in the coming months. The country’s legal assistance services are increasingly under-resourced leaving thousands of Australians without adequate access to quality legal advice and assistance.

The ABA will also be embarking on a campaign nationally to encourage corporate counsel and law firms to brief barristers early in litigation and promote direct access briefing at the bar. It is in everyone’s best interests (including the courts), to have barristers briefed more effectively and earlier in litigation. This serves  to clarify the issues in dispute, the causes of action and assist the management of the entire dispute resolution process, empowering clients to make informed decisions, and potentially reduce overall legal fees.
 
I look forward to sharing further updates on these projects throughout the year. I also look forward to seeing many of you in London and Dublin in July for the ABA’s International Conference. The conference will bring together barristers from across the globe to discuss and share innovative ideas, political influences and the challenges and opportunities facing the profession and legal systems around the world.  Please visit the ABA events website here to find out more about the conference program and networking opportunities. Early bird registration discounts will be available until the end of February 2017.

Finally, I would like to thank Philip Selth OAM for his work as the ABA’s CEO for the period 2015-2017. Philip has made a significant contribution to the ABA to ensure its continued presence, professionalism and relevance to members across the country. For his service, Philip was awarded ABA Life Membership at the recent 2017 Silks dinner, as was the Hon Robert French AC, the Hon Ken Hayne AC QC and previous ATC Chair Philip Greenwood SC.
 
I am pleased to announce the appointment of Cindy Penrose as the ABA’s new CEO, who brings a wealth of experience at this important stage of the ABA’s development. Ms Penrose comes with extensive experience both as a criminal lawyer and lecturer, as well as serving the NSW Bar Association as its Senior Policy Lawyer for five years. Ms Penrose holds a master’s degree in law and currently sits on the board of the Tristan Jepson Foundation.
 
Over the next 12 months, I look forward to working with members and for members to advocate for and improve access to justice, promote the quality and excellence available at the bar and continue to act as the national voice of barristers to build public understanding of the importance of the rule of law.
 
Will Alstergren QC
ABA President
ABA Vice President Christopher Hughes QC
Former ABA President Patrick O'Sullivan QC
ABA President Will Alstergren QC
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ACT BAR ASSOCIATION'S
MAJOR SPONSOR 2017
The ACT Bar Association is excited to announce the Gillespie Group as the Bar's major sponsor for 2017.  Gillespie Group is a Canberra based Financial Service firm that is dedicated to providing services tailored to your individual needs.  They have a team of qualified Accountants & Financial Planners who will work alongside you with the aim of not only solving problems that arise, but helping you reach your financial goals. 

The Gillespie Group will provide to all our members expertise from their friendly Accountants, Financial Planners and Mortgage Brokers who will offer you a wide range of expertise and experience in the world of business, taxation & accounting, wealth creation and protection. 

We are also excited the Gillespie Group will be presenting at our mini-conference on Saturday 25 March.

For more information regarding the Gillespie Group services click here.

Update DPP


Jon White SC
DIRECTOR

Ministers of justice

The ceremony to mark the start of the new law year was an opportunity to reflect on the role that lawyers play in our justice system, and society generally.  The term “ministers of justice” which has been applied to lawyers generally, is particularly opposite for prosecutors.  As we start another year, it is worth reflecting that the independence of the prosecutor carries with it great responsibility.  It is the lot of the prosecutor to make unpopular decisions and to stand up against entrenched interests and powerful institutions.  While some public officials make decisions that are unwelcome in one quarter or another, the prosecutor has the unique distinction of making decisions that are sometimes unpopular in every quarter!  

Prosecutors are the most scrutinised of public officials - by the Courts, by our colleagues in the profession, by police and other investigators, by victims, witnesses and other interested parties, by the Assembly and its members, and by the media.  As I have often remarked, prosecution is not a game for those who crave popularity. 


Late pleas

The issue of late changes of plea has long bedevilled the criminal justice system.  How can we bring forward the decision to plead guilty?

As set out in my recently published annual report, the figure for the number of Supreme Court trials conducted in the reporting period (47 trials for the 2015-16 year) while significant in itself, does not reveal the full picture.  In addition to those trials, there were 68 matters that were committed for trial following a plea of not guilty, where the plea changed to guilty after committal.  Of those 68 matters, in 42 cases the change of plea came late, after subpoenas were issued.  And in 11 of those matters the change of plea came about either on or after the first day of the trial. 

There is an obvious issue of resourcing in all of this.  By the first day of a trial, most of the extensive preparation required for a trial has taken place.  Witnesses have been summonsed and conferenced, exhibits prepared, and prosecutors have analysed and prepared the case. 

We are always looking for ways to promote early changes of plea.  My office engages with matters immediately after committal, filing an indictment and comprehensive case statement.  We are accordingly able to engage in meaningful discussions with defence as soon as defence counsel has engaged with the case and their client. 

Experience has shown that the best way to promote the engagement with the case that is required for early resolution is to have a hard and fast trial date set as early as possible.  This provides the framework which concentrates the mind of accused persons and their counsel as to the resolution of the case. 

We are always willing to discuss early resolutions of matters.  If necessary senior prosecutors can be contacted to promote this.

We look forward to another productive and busy year.


Jon White SC
Director of Public Prosecutions
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Legal Aid Commission Update

John Boersig - CEO

 

Service trends and new initiatives

 
In the course of the past year or so several key areas of emerging need have become evident within legal aid work.

Of immediate concern are outcomes in care and protection matters. Children and their families who are involved in these matters and have come before the Children’s Court have indicated widespread dissatisfaction with end results. Contemporary evidence indicates that outcomes for Aboriginal and Torres Strait Islander (ATSI) children are particularly poor, with ATSI children constituting approximately 25% of all children and young people in care in the ACT 1. In response to these concerns, the Commission has facilitated a new dispute resolution process for care matters, utilising the effective and long established Family Dispute Resolution scheme. The capacity of this scheme to undertake more care and protection matters is unfortunately limited.  Additional funding would allow service expansion, increasing the number of parties able to receive assistance and likely resulting in significantly improved outcomes for children and their families.  

A second critical issue relates to family violence victims. There are currently high levels of public demand for the provision of better services to primary victims of family and domestic violence. Initial funding has been provided to the Commission to expand available assistance, and the Commission has worked tirelessly to meet increased community need. Data suggests however, that the numbers of primary victims requiring assistance continues to climb. 2

It has heartening, in this context, that a new 'Duty Service at the Family and Federal Circuit Court for Families experiencing Family Violence', is set to commence soon. Our current duty service provides initial advice for both applicants and respondents.  This will be service, including minor assistance and some duty representation, will be extended to people experiencing, or at risk of, family violence. We have also recruited a Family Violence Support Officer with social/community work qualifications – the position will work specifically to the family violence team but also with our domestic violence unit lawyers (although we expect the position will also be able to support core family law and children’s court work in the litigation practice.
 
The Commission continues to provide a broad range of legal services to Aboriginal and Torres Strait Islander (ATSI) peoples and to Culturally and Linguistically Diverse (CALD) communities within the ACT. Indeed the Commission is the main provider of family law, family violence and children care services and represents up to 40% of ATSI people who attend court for serious criminal matters.

In response to demands for better and more accessible services for these communities, the Commission has established a Community Liaison Unit. This Unit is comprised of an ATSI Support Officer and two Cultural Liaison Support Officers. It has provided increased services to a range of CALD groups, in particular to Muslin women from Arabic speaking backgrounds, and to ATSI people. In the first 6 months of last year the Unit assisted 145 clients, of whom 76 were Muslim – this improvement continues into the current year. Outreach was undertaken last year at 26 venues across the ACT and 36 key stakeholder’s meetings were held. In tandem, in partnership with the ANU, a migration clinic has commenced at the Commissions’ offices every Thursday afternoon.

Crucially, the Commission is also seeing increased numbers of people associated with allegations of elder abuse. This is consistent with national trends. Elder abuse can manifest in variety of ways; from physical, to emotional, to financial. As matters of this nature are usually urgent, often involving financial management and guardianship applications, it is vital that the Commission has the ability to act quickly and efficiently to achieve the best possible outcomes for vulnerable parties. The Commission has reallocated resources to help meet this unexpected demand.

All these issues are of immediate concern. Maintaining an adaptable and innovative legal aid services is crucial to meeting the needs of the most vulnerable and disadvantaged people in our community.
 
John Boersig
CEO
Legal Aid ACT
 
_________________________________________
  1. Community Services Directorate, ACT Government, A Step up for Our Kids: Out of Home Care Strategy 2015-2020 (2014) 2) Available online here.
  2. For example, in the 2013-14 period approximately 8% of Legal Aid ACT grant applications had flagged family violence indicators. By 2014-15 that percentage was at 11%, by 2015-16 it reached 20%. Requests for Legal Aid ACT duty advice in relation to domestic violence orders has also risen from 8% in 2013-14 to 13% in 2015-16.  
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Gender Inequality
and the Legal Profession


Ben Aulich
Aulich & Co
At the end of the American presidential election, I felt an overwhelming sense of relief. Relief, that I can stop hearing about it. It’s bad enough hearing the rhetoric of our own politicians, but having to go outside our borders to hear more seemed too much. I was surprised, however, to understand the negative effect the result had on many of the lawyers at my firm, in particular the female lawyers.
 
After expressing my surprise at the result to one of my female Senior Associates, I was met with the answer, “Why would you worry about the result? You are a white, middle class male.” There it was…'male'. I immediately thought to myself, “What difference does my gender make to how I feel about the result?” We are approaching 2017, and there are good numbers of females in our profession.

The comment however, gave me cause to think a little more about the situation for females in our profession, and to conduct my own “Google” and anecdotal research. In Canberra, we have 2 of 5 judges who are female, and 4 of 7 Magistrates (including the Chief Magistrate) who are female. It all seemed ok.

However, it appears our profession may not have its house in order about this issue like I first thought. The statistics show that in Australia, female lawyers, on average, earn approximately 64% of what male lawyers do. A pay gap of over 35% is not an enviable one.
 
Every one of my female lawyers had a sexist horror story: clients focusing solely on their chests, clients ordering coffee from them as if they were merely in conference for catering purposes, and even a Queen’s Counsel commenting that a female lawyer involvement in a matter was merely to 'pretty the place up.' Needless to say, there were no more briefs for him. The most recent story was where a potential client called and demanded to speak to “a man” because he wanted to appeal a decision made by a female Magistrate – partly because he had a problem with women having “that sort of power”. This is not an exaggeration. I refused to take his call or act for him (there are at least some people I am not prepared to act for!). These are more extreme examples, but my female lawyers have disclosed to me that it is the regular, subtle differences in the way they are dealt with and treated by seemingly intelligent, well-educated people, that highlights a deeply embedded sexism in our profession.
 
Law firms are generally conservative and inflexible. Being a slave to the billable hour like many law firms are, there is a perception that if lawyers are not in front of their computers or in court, profit will suffer. If this is the mindset, then how on earth are females in the legal profession supposed to compete? At least 4 of my female lawyers who have children, are set up at home, have flexible working hours, early days and days not in the office so that they can manage work around their families. These lawyers are some of the most productive people I have the pleasure of working with. Of the 13 lawyers we have at our firms, 8 are female, 2 of 4 are directors/ partners and 3 of 4 are Senior Associates. We also have 4 of 4 female paralegals and both Practice Managers are female.
 
We did not structure our workplace like this deliberately, rather those people were the best performers for the role AND we allowed them some flexibility to manage their careers and families. Perhaps, in part, this is why they took the job, and are still with us – some for many years now.
 
My parents recently visited my offices. A rare visit from them in business hours. As parents seem to do, they formed the view it was most appropriate to ‘inspect’ my workplace, walking each of the 3 floors our offices occupy and meeting our lawyers and staff. They did not say much at all, until my Mum opened a freezer in one of our kitchens. There, she discovered it was full of frozen breast milk. She beamed and said “Good boy, I’m so proud of you”.
 
I’m sorry if this sounds like I’m preaching, I don’t mean to. In truth, I am not as blameless and progressive in relation to the issue of sexism as I would like.
 
Sexism is fraught and hard to talk about, so often we don’t. So, if there’s one positive about Donald Trump’s election, it is bringing this issue to the front of my mind.

Ben Aulich
Managing Partner
Aulich & Co
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The Human Rights Balance

Deputy Director DPP (ACT)

Shane Drumgold

In 2013 I published an article critical of a potential offender centric approach to human rights (Human Rights of Hypocrisy - Fairfax Media 9 January 2013) that appropriately drew comment ranging from strong support to strong criticism. Personally I was encouraged by both extremes of the ensuing discussion, as it demonstrated that we were at least willing to discuss the issue, and indeed this was the very purpose for writing the article.

A number of years after I wrote the article, an electronic copy was tendered into evidence in support of an unsuccessful application to have me removed as prosecutor from a Human Rights based application to stay a child sex prosecution on the basis of perceived bias, raising the question of whether or not a prosecutor should contribute to such public debate. Such an application appears to suggest that such public debate should be the exclusive domain of the defence bar.

The question was answered in the application to which I was subject, as well and the NSW Criminal Court of Appeal in MG v R [2007] NSWCCA 57, which although in that particular circumstance felt the Prosecutor’s comments on the specific circumstances of the case went too far, supported the need for informed public discussion by all sides of the profession.

Notwithstanding the criticisms, the premise of the article being that Human Rights must not be limited to accused rights, not only remains valid, but is well supported judicially all around the world.

In 2003, the House of Lords in Attorney General’s reference (No 2 of 2001) [2003] UKHL 83 considered a reference appeal in relation to a stay of prosecution based on delay, invoking Article 6 of the European Convention on Human Rights. At paragraph 9 of the judgment, Lord Bingham cautioned;  “...the Convention also recognised, implicitly and often explicitly, that “No man is an Island.” In the exercise of individual human rights due regard must be paid to the rights of others, and the society of which each individual forms part, itself has interest deserving of respect. As pointed out in Brown v Stott [2003] 1 Act 681, 704;
 
The [European] court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention...”

At paragraph 22, Lord Bingham also cited the US Supreme Court’s criticism of the interpretation of the Sixth Amendment to the United States Constitution (Right to a fair and speedy trial) in Stunk v United States (1973) 412 US 434;

“...The amendment has thereby been twisted totally out of shape – distorted from a guarantee that all accused will receive a speedy trial into a windfall benefit of criminal immunity for a very few accused in whose cases the pandemic failure of our court to provide speedy trials has attained particularly outrageous proportions...”

Whilst this criticism is quite inconsistent with my experience of the general application of Human Rights legislation in the ACT, the legal community must remain vigilant that the Human Rights regime is applied in a balanced way, as expressed in Preamble 6 of the ACT legislation;

... One individual’s rights may also need to be weighted against another individual’s rights.

Preamble 7 of the ACT legislation recognises the special significance Human Rights have for Aboriginal and Torres Strait Islander people, and this space has drawn recent public commentary to similar effect to my 2013 article. The over representation of indigenous people has rightly been the subject of much public debate. I am of the view that it should not only be louder and more frequent, but include other detail such as the fact that indigenous people on average die 20 years earlier than non-indigenous people, indigenous children are 15 times more likely to be removed from their family and placed in care, and in the 25 years since the Royal Commission, indigenous custody rates have actually doubled (Indigenous Deaths in Prison – SBS 15 April 2016).

Recently however, members of the Prime Minister’s Indigenous Advisory Council cautioned that such debate focused too heavily on offenders at the expense of discussion about victims. Noting indigenous women were 34 times more likely than non-indigenous women to end up in hospital because of violence and 10 times more likely to be murdered, Professor Marcia Langton said “there is way too much emphasis on the offenders and perpetrators of violence”. (Indigenous leaders demand action on violence against aboriginal women crisis –Lindy Kerin ABC News 17/11/16).

Professor Langton’s reputation as a defender of indigenous rights is beyond question, and such comment must not be seen as detracting from the recognition of Australia’s appalling indigenous custody rates, rather one that makes the analysis more complete. Such open and honest debate helps guard against a situation where a particular strategy may give the appearance of improvement in the drivers of indigenous custody rates, but in reality is only shifting the problem to another segment of the community such as victims, a point that is equally applicable to the broader discussion on human rights.

The lot of a victim of crime is without exception an unhappy one, firstly suffering directly from the crime, only to then be dragged through the criminal justice system as a witness, almost always resulting in significant uncompensated financial loss, and unquantifiable personal costs. It is very tempting to reduce the Human Rights discussion into a false dichotomy of offender vs victim, when the line between the two is not black and white, rather varying and ever changing shades of grey. For example, many victims of crime become offenders and many offenders subsequently become victims of crime, with the previous status directly causing the latter. One only need to look at the frequency of domestic violence offenders revealing they were victims of such crimes themselves, or incidences of prison assaults. It would be a strange system indeed where more protection were afforded a person when they offended, than when they were offended against.

The role of Human Rights legislation is not to provide an additional pool of material for argument in cases where favourable material is otherwise thin, it is to guarantee the basic rights that define a civilised society. This must not only theoretically embrace all segments of society, but practically protect the fundamental rights of the entire community. Balancing who and when to give particular protection must be directed at providing the best outcome for the community as a whole. Protecting the rights of accused people is undeniably in the best interest of the entire community, as it reinforces the structural integrity that defines a civilised society. This must however be balanced against the need to protect the rights of the other humans making up that society.

Shane Drumgold
Deputy Director
DPP (ACT)
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BOOK REVIEW

by Douglas Hassall - Barrister ACT

G E Dal Pont Law of Limitation
Lexis Nexis Buttersworths Australia 2016
'An outstanding new text upon the law of limitation'
Once again, Professor Gino Dal Pont of the University of Tasmania has favoured Australian legal practitioners with another in the superb series of textbooks on law produced by him over recent decades.  His works on Lawyers Professional Responsibility, The Law of Costs, The Law of Agency, Equity and Trusts, Powers of Attorney and (with K. Mackie), The Law of Succession, are by now very well known indeed and much consulted by practising lawyers throughout the country, for their up-to-date and detailed content and careful expositions of the law in those fields. It is fair to say that his magnificent book on the Law of Charity is another text which practitioners prize for its exhaustive treatment of a topic that has come into new prominence in the civil law of recent years. This latest book, Dal Pont on the Law of Limitation, offers us a comprehensive treatment of the legislation and principles applicable to the topic of limitation of actions in all jurisdictions across Australia. It does so not only by detailed discussions of the legislation involved, but also by very close examinations of the extensive (and evolving) caselaw.
 
Whilst there have been other texts produced on the topic, notably amongst others, Handford’s Limitation of Actions (2012) which grew into book form out of the treatment in The Laws of Australia, Dal Pont’s 2016 careful survey and exposition of the law relating to limitations, across all of the Australian jurisdictions, will be most welcome to busy Counsel practising in the civil law. For, as Dal Pont notes in his Preface, his hope has been to “assist practitioners to navigate the intricacies of the limitations schemas – lamentably far from uniform – across Australia.” It is a hallmark of all of Dal Pont’s texts that they contain extensive case lists and very detailed annotations in footnotes, which are there not just as scholarly apparatus, but contain the right kind of careful attention to decided authorities which have applied the legislation and which inform the development and application of principles in this important field. It is notable that Professor Dal Pont happens also to be one of our legal scholars who very well understands a professional lawyer’s needs and in bringing out his latest work, he acknowledges assistance he received from the late Mr David Turner of the Victorian Bar, amongst others involved. ​​ 

 It is of some interest for ACT practitioners to note that Dal Pont opens his Preface with reference to a judgment by the late Justice Terry Connolly (whose sad and untimely passing is still so keenly felt by us all in the Territory) in Nguyen v Jajic [2007] ACTSC 12 at [9] to the effect that “All lawyers, not merely specialists in particular fields, are expected to be aware of limitation periods.” That observation came from one who, both as a Supreme Court Judge and formerly as Attorney-General, was very mindful of the importance of the rights of individuals under the civil law. Dal Pont also quotes the point made by Master David Harper in Whiteford v Ropolo Services Pty Ltd [2009] ACTSC 22 at [19] where the Master spelled out exactly what that expectation referred to by Connolly J means and translates into, in terms of the obligation to communicate to, for example, a personal injuries claim client, the existence of any relevant limitation period that may apply to the claim: namely, the lawyer “should explain to a client who may have an action available for damages … particularly in circumstances where the solicitor is not immediately instructed to commence proceedings, and where the limitation period will elapse within a few months. The solicitor should adopt this course even where the solicitor forms the view that such an action might not have particularly strong prospects of success, and even where the solicitor genuinely believes that the client does not wish to institute proceedings and will probably never wish to do so. The solicitor’s role is to advise and explain: the decision is one for the client.” It is perhaps of more than passing note that Dal Pont chose these two comments from ACT Supreme Court decisions to open a text upon limitations law in Australia.
 
Dal Pont also mentions the like observation by McCallum J in Houda v NSW [2012] NSWSC 1040 at [36] that lawyers for a plaintiff “have an obligation to give proper advice as to the steps available to preserve a cause of action within the limitation period”, and notes the point made by Longmore LJ in Phillips & Co (a Firm) v Bath Housing Co-Operative Ltd [2013] 2 All ER 475 at [56] that the limitations statutes are “technical Acts” and thus very often will give rise to difficulties. Dal Pont also cautions that nowadays in the United Kingdom, the “statutory schema has digressed in important ways from Australian counterparts” so that works such as McGee’s Limitation Periods 7th ed. (2014) and Canny’s Limitation of Actions in England and Wales, need to be approached with some caution by Australian practitioners where they treat of more recent UK legislation and rulings. Incidentally, anyone who saw the webcast proceedings in the UK Supreme Court in the Brexit Appeal (and indeed, reading the subsequent recent decision), can well understand now why even Sir Owen Dixon reached a point of exasperation in the 1960s about diverging tendencies in legal doctrine as between Britain and Australia.
 
An especially good feature of Dal Pont’s approach in researching and writing this new treatise on the law of limitations as it applies and is enforced throughout Australia, is that rather than merely cataloguing the position on a jurisdiction by jurisdiction basis, with relevant legislation and caselaw set out for each, the author has been able to instead provide us with a thematic treatment under five separate Parts, which are given the various indicative headings of: Time Contextualised; Time Prescribed; Time Suspended; Time Extended; and Time Reformed. This welcome approach, which rather resembles what the procedure of Meagher Gummow & Lehane did in respect of the field of Equitable Remedies, and which has since been applied by other legal text-writers, is not adopted by way of any merely doctrinal obsessions, but in a helpful attempt to organise the material in ways which answer more or less immediately to the practising lawyer’s various concerns as they arise in litigious matters before him or her. It should be noted that in doing so, Dal Pont certainly does not take a merely general view of the legislation and relevant court rulings; for in each Part and Chapter and under each Heading of discussion, we are given those detailed annotations taking us to the statutes of all the relevant jurisdictions and, as well, to the caselaw.
 
At the outset, it is important to note that Dal Pont gives us also an excellent opening account of the public policy and the principles which animate or lay behind, the various limitations statutes and the case law. So he reminds of what Lord Simon said in Smith v Central Asbestos Co Ltd [1973] AC 518 at 547, noting that delay or “dilatory procedures may defeat the very purpose of the judicial process – namely to vouchsafe justice – since, if litigation is [unduly] prolonged, not only is there waste of time and money and moral energy, but circumstances may change … delay will make it more difficult for the legal procedures themselves to vouchsafe a just conclusion – evidence may have disappeared and recollections become increasingly unreliable.” Lord Simon also made some (perhaps unguarded) comment about “speedy rough justice” being “generally … better justice than justice worn smooth and fragile with the passage of years” but Dal Pont is careful to explain that Lord Simon did not mean “rough justice” in any sense of contemporary usage of the term.

Instead, Dal Pont points to the familiar concept expressed in the maxim interest reipublicae ut sit finis litium – it is in the public interest that contention come to an end (but one may add, justly). Further, Dal Pont refers to Lord Simon’s points about “the advantages of celerity and some sort of finality in the legal process” but in Australia we have a body of law rightly tempering such considerations by the fundamental requirement of Justice, allowing the Courts a degree of discretion to be (properly) exercised as such in regard to appropriate Extensions and we also have some laws relating to Suspensions, and we hopefully shall never descend to types of ‘celerity and finality’ that appealed to lawyers like Reichminister Hans Frank or to jurists like Carl Schmitt in the 1930s.
 
Instead, as Dal Pont very rightly points out, in Australian jurisprudence, the law of limitations is bound up with “the principle of res judicata, the law relating to prescriptive rights, barristerial [or advocates’] immunity, statutes of limitation and the equitable defence of laches.” It is also notable that in Part V of this new book, Dal Pont provides three chapters significantly dealing with a range of reforms, and proposals for reform, of the law of limitations. In particular, he first mentions various calls for “wholesale reform” of the field of limitations, and also notes some comments on “the trajectory of reform in England, where a Supreme Court Judge in 2012 described the law of limitation as ‘complicated and incoherent’ largely because it ‘had been subjected to a wide range of ad hoc reforms, following the recommendations of reform bodies charged with recommending reforms of particular pockets of law’. The English experience, moreover, has revealed the upshot of proposals for reform of the law of limitation as ‘like leaves on the ground in Autumn’.” It is worth noting in this context that Dal Pont specifically mentions the implementation in the ACT and Western Australia, (and its translation into law in several Canadian provinces and New Zealand) of the concept of a ‘general’ limitation period, in the interests of “simplicity and fairness”. He also discusses the principles of “Discoverability” and aspects of proper exercise of judicial discretion in the law of limitation.
 
It is a very good thing that legal scholars like Professor Dal Pont are enabled to produce texts of the quality and comprehensiveness of the Law of Limitation, with such an abundance of collected learning. Sir Garfield Barwick once warned Junior Counsel not to be so dismissive of text-books, precisely because, as Sir Garfield put it, “there is often a lot of learning to be found in them”. This book shows that to be yet again true of this new offering from Dal Pont, whose professional experience, deep learning in the law and contributions to development of the law have been duly recognised by the conferral upon him of the LLD degree. The Law of Limitations is a book which all practising lawyers should have access to; and it will more than repay any Australian lawyer to acquire it.

Douglas Hassall - Barrister
Silk Chambers
Canberra

 
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EVENTS

ACT Bar Association Mini-Conference

Saturday 25 - March 2017


Early Bird  – Now Open

Early Bird registrations for the ACT Bar Association's Mini-Conference is now open.  Earn your 10 CPD points all at once.

The Mini-Conference will be held at the Legal Aid Office on Saturday 25 March 2017.  The Mini-Conference has an impressive line up of speakers and will also have a judiciary advocacy panel (Justice Refshauge, Justice Gill, Chief Magistrate Walker).  You can download the flyer here.

To download your registration form click here.

Don't miss out on your Early Bird rate! 

If you have any enquiries in regards to the mini-conference email ceo@actbar.com.au

ACT Bar Association

2017 Ski Trip

The ACT Bar Association is holding its inaugural winter mini-conference at the Sundeck Hotel in Perisher Valley, and Sundeck are offering very reasonable package prices which will also include CPD.

This is an event to attract any member who wishes to combine 6 CPD points with skiing and socialising.  It promises to be an event which caters to all levels of skiers/snow boarders and encourages novices to the powder hounds to get involved. 

The Sundeck Perisher is an excellent hotel sitting just above the main Perisher Valley Centre.  It is ski in/out which means that you waste no time coming and going each day. 

When:  23 - 28 July 2017 (with options to stay longer)
Click here for rates.  Please note all rates include dinner, breakfast, oversnow transport (on arrival and departure), welcome drinks on Sunday 23 July and the mini-conference. 
To download your registration form click here.
Terms and conditions found here:

What the trip includes:
  • Mini Conference
  • Wine tasting night
  • Open mic night (bring your portable instrument)
  • Ski day and lunch package Charlotte Pass
    (market price)
  • Video of highlights
  • Race Day at BlueCow or Charlotte Pass.

ACT Bar Association

Website and Social Media

The ACT Bar Association’s website has now been refreshed and is live. Members can be found via ‘Find a Barrister’. If you think your details are incorrect, or would like to update/add an image or your CV, this can be done at any time. Please email ceo@actbar.com.au.
 
The ACT Bar Association is now on Twitter and Linkedin. Below are the links to the website, Twitter and Linkedin.
Twitter
Website
LinkedIn
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How to Succeed in Business
(litigation against the Government)
without really trying....

SUBMITTED BY Chris Ryan
Barrister - Silk Chambers

In the mid 1800's a property named 'Launceston Swamp' was resumed by the Tasmanian Government. A 28 years long court battle ensued as to quantum of compensation. Plaintiff (Mr Abbott} chanced upon the Premier walking in Hobart. Mr Abbott assailed him with the umbrella carried for just such occasions. Case won. The award was used to fund a political career? A legal career? Neither. Publication of Australia's first cook book- 'The English and Australian Cookery Book' (1864). A more useful legacy for the nation.
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2017 Dates for your Diary

Supreme Court Ceremonial Sitting
Swearing-in David Mossop
Monday 13 February 2017
Federal Court Ceremonial Sitting
Swearing-in Amanda Tonkin
Thursday 16 February 2017
CPD Mini Conference
Legal Aid Conference Room
Saturday 25 March 2017
Farewell to Justice Refshauge
April 2017

ACT Bar Association
Law Week Breakfast and CPD

Tuesday 16 May 2017
Regimental Dinner
Friday 14 July 2017
Commonwealth Club

Essential Trial Advocacy
Perth
10-14 July 2017

ACT Bar Association CPD Ski Trip
23 - 28 July 2017
Australian Bar Association
Conference

London
2–3 July 2017
Dublin
5–8 July 2017
Bench and Bar Dinner
Friday 15 September 2017 
Commonwealth Club

ACT Bar Association
CPD Event

To be advised
ACT Bar Association
AGM

Thursday 21 September 2017
Law Society Mental Health Week
Lecture
10 October 2017
ACT Bar Association
Christmas Dinner

Friday 15 December 2017
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ISSUE FEB 2017
INSIDE
President's Message
Editor's Note


 FEATURED ARTICLES 
Farewell Parker
Congratulations David Mossop
Abolition of the Master
Overcoming Indigenous Disadvantage
Chief Justice Helen Murrell
ABA Update
Gillespie Group - Major Sponsor

DPP Update - Jon White SC
Legal Aid Update
Gender Inequality - Ben Aulich
Human Rights - Shane Drumgold
Book Review - Doug Hassall
How to Succeed in Business - Chris Ryan
Events
Dates for your Diary
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Twitter
LinkedIn
Website
Email us
ACT BAR ASSOCIATION
AMP BUILDING, 1 HOBART PLACE CANBERRA ACT 2601 AUSTRALIA

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