2014's proudest moments for lawyers and the law ... The mesmerising performance of Bookshelves Brandis ... The inquisitorial system's manifold distractions ... Top End Lawn Order ... Defamatorium ... Ashby, Assange, Whitlam, ASIO, and more ... Theodora's wrap of the year
Lawyers in the year just passed have reason to rejoice at the great strides made in the service of the rule of law. Here is out selection of the best of the worst ...
Soapy (Bigot) Brandis "QC" throughout the year gave a performance that was utterly mesmerising.
Not only did he distinguish himself with a stellar display of rorting government expenses (while at the same time slicing and dicing the funding to community legal centres) there was that sublime moment on SkyNews when he sought to clear-up whether web browsing would be caught in the data retention scheme:
Brandis: "The web address, um, is part of the metadata."
Journalist: "The website?"
Brandis: "The well, the web address, the electronic address of the website. What the security agencies want to know, to be retained is the, is the electronic address of the website that the web user is ... "
Journalist: "So it does tell you the website?"
Brandis: "Well, it, it tells you the address of the website."
A moment later he added:
"What people are viewing on the internet when they web surf will not be caught. What will be caught is the web address they communicate to."
Things were no better when the AG turned his mind to improving the free speech of bigots by removing chunks of section 18C of the Racial Discrimination Act.
Soapy Brandis' amendments were welcomed by Holocaust revisionist Fredrick Toben who said they would provide a useful challenge to "Jewish supremacism" in Australia.
This endorsement came only weeks after Brandis had assured the Jewish lobby that his Bigots Bill would give them free speech and protection against racism.
The AG also thought that s.18C had it's useful purposes, e.g. defending Liberal ministers from wretched interviewers.
ABC radio host Matthew Abraham asked the Finance Minister, Mathias Cormann, could he really understand the Australian mindset and culture, compared to other politicians who have been here a lot longer than 1986?
Abraham's question was "preposterous", fumed the AG. Furthermore, he told one of his Hansard reporters working on The Australian that Cormann, "would have good grounds for a complaint under section 18C".
Brandis' hand plucked Human Rights Commissioner Tim (Freedom Boy) Wilson soon bestrode the nation with dinky rights and freedom seminars. Conveniently, Brandis was a no-show for his keynote address at the first of these gabfests in Sydney last August - two days after PM Abbott announced that the AG's RDA amendments were "off the table".
Father Frank Brennan got a taste of just how deeply the AG loves free speech. Brennan spoke rather too freely at a Queensland Law Society dinner, denouncing the erosion of human rights in Corporal Newman's Queensland.
When he sat down, there was a glacial atmosphere at the top table, which comprised Soapy Brandis, Two-Wigs de Jersey, and the Boy Attorney General.
Soapy and Two-Wigs were so mortified they fled before they could eat their puddings.
The inquisitorial system
Royal Commissions and ICAC served as useful saviours for hard-pressed lawyers.
Dyse Heydon and the team slugged away at the union governance and corruption commission, but not to any startling effect.
In his interim report the former High Court cadaver seemed to be livid that Julia Gillard was well-prepared and got the better of counsel assisting, Jeremy Stoljar:
"The key parts of her evidence were the product of many months, in a sense nearly 20 years, of thought about the issues – the product, too, of iron willpower which drove her very able mind into the most intense and thorough preparation. All this - her intense degree of preparation, her familiarity with the materials, her acuteness, her powerful instinct for self-preservation – made it hard to judge her credibility. Normally cross-examination of a non-expert witness is a contest between a professional expert who is familiar with every detail of the case and a relatively unwary member of the public who is not. But Julia Gillard had 20 years' knowledge of the case and immense determination to vindicate her position. She was, so to speak, a professional expert on her own case."
The Pink Batts Royal Commission came and went without a ripple, except for Gorgeous George Brandis' decision to break with precedent and hand over cabinet papers to commissioner Ian Hanger, who trousered $730,000 for six months work.
On the other hand, Catholics came in for a good birching from the McClellan Royal Commission into child sexual abuse.
Cardinal George Pell slithered all over the place as he was questioned about the church's conduct in the infamous Ellis case. Everyone else was to blame, his lawyers, his private secretary, the unreasonableness of his litigation opponents.
The church decided to claim that Ellis had not been molested at all by Father Aidan Duggan, even though it was "arguably beyond reasonable doubt" that he had been. Ellis' application for an extension of time to bring his civil claim was vigorously opposed by the church.
Corrs acted for the church and two of its finest, Paul McCann and John Dalzell, were robustly quizzed by McClellan. This is how it went with the hapless Dalzell:
Q. ... You knew that Mr Eccleston had determined that Mr Ellis was telling the truth, didn't you?
A. I did know that, your Honour, yes.
Q. And you knew that your client had nothing to the contrary of that proposition?
A. That's correct, your Honour.
Q. You sat there while your counsel put in issue whether or not Mr Ellis was telling the truth about having been abused; that's the position, isn't it?
A. It is, your Honour, yes.
Q. Can you explain how ethically you could sit there and do that? ...
A. Your Honour, I did know that, and my memory from it is that - you're asking about my ethics, your Honour, and I say this ...
Q. I am. I'm putting squarely in issue how it can be that a solicitor, who has an obligation to the court not to do anything that could mislead in any way ...
A. I'm aware of that, your Honour.
Q. ... can sit behind counsel and allow this to happen?
Margaret Cunneen let the Newcastle Catholics off relatively lightly in her report on abuse in the Newcastle diocese (maybe with the exception of Fr. Brian Lucas). She found nothing wrong with the coppers sitting on their hands, but rounded on the whistleblower, Detective Chief Inspector Peter Fox.
She found that Fox was deliberately untruthful, prone to exaggerate aspects of his evidence, not possessed with detachment and a zealot.
"The commission considers that by at least 2010 Fox had lost the objectivity required of an investigating officer regarding such matters. While he remained passionate about things involving the Catholic Church, he no longer possessed the detachment necessary for properly investigating such matters. In short, he had become a zealot."
Fox supporters, of whom there are many, have been helpful enough to point out that those adverse findings are not terribly different from the ones the NSW Court of Criminal Appeal made in relation to prosecutor Cunneen in Armstrong v R.
Moments after her report came down Cunneen was called to appear before the McClellan Royal Commission to explain her decision not to prosecute the former Australian swimming coach Scott Volkers in relation to allegations of child sexual abuse.
Cunneen thought the allegations against Volkers were "trivial".
Meanwhile, it's pens down at ICAC pending the outcome of the High Court appeal on the corruption fighter's powers.
The outcome of investigations into dodgy Liberal Party fundraising and the gouging of Sydney Water by the privately controlled (Obeid, Di Girolamo, Sinodinos) Australian Water Holdings are on hold.
A member of the public wrote to Cunneen saying how distressed he was that her legal action might permanently torpedo ICAC's good work in weeding out the crooks, spivs and weasels who infest business and politics. He received a curious reply from the prosecutor, saying:
"Thanks so much for your love and support which I appreciate so much.
It is indeed amazing that these people don't realise that my dear Sophia doesn't drink (her blood test was 0.00) and the crash was so bad that the car was written off. Isn't it good that all the independent bystanders said I did absolutely nothing wrong?
What a malevent [sic] person my long-estranged sister is to take the bare bones of the terrible crash that my father told her about and do this to me.
I know you wish for justice and I thank you for that.
I would've so glad [sic] to do all I can to advance your professional interests and I do thank you so much for your unexpected love and support."
The "malevent", Carol Cunneen, later emerged in the press to say that she had not complained to ICAC and was shocked to learn that she was being blamed by her sister.
Eddie Obeid (snr) had also been out on the ramparts saying that while he is a "believer in anti-corruption bodies", ICAC is not doing its job properly and that there was only a "one percent chance" he would be prosecuted.
Nice months later, in November it was announced that Obeid would be charged with misconduct in public office.
Sydney barrister Andrew Kostopoulos, who was the brief appearing at ICAC for Rod de Aboitiz and Anthony Karan, two of the investors dudded by Australian Water Holdings, managed to clear-up an important discrepancy.
"Any reference to the term Greek, which derives from the Latin word G-r-a-u-c-i is offensive to both me and the Hellenic community in Australia ... as the Greeks were an unruly nomadic tribe of barbarians, the Hellenes were not."
He continued ...
"Recent global spotlighting on the economic demise of Hellas Greece has ruined the brand name of our rich culture and our background.
The Hellenes on the the other hand were ethical, hard working and intelligent thinkers, innovators and philosophers ..." etc, etc.
In Canberra a special board of inquiry conducted by acting justice Brian Martin found that the prosecution in the Eastman case had been conducted unfairly, but that no one "deliberately engaged in a breach of duty by intentionally withholding from the defence information which ... should be disclosed".
Martin came up with a new approach to beyond reasonable doubt, saying he was "fairly certain" Eastman is guilty of the murder of assistant ACT police commissioner Colin Winchester, yet "a nagging doubt remains".
The board of inquiry recommended that Eastman be granted a pardon and that his conviction for the murder of Winchester be quashed. The ACT Full Court had earlier found that Martin's inquiry had been infected by judicial error but, what the hell, it should go ahead anyway.
Six months after the Martin report was sent to the court, the DPP announced Eastman would be retried for murder.
Eastman didn't help himself at his original trial in 1995 before Ken Carruthers J, with Michael Adams, as he then was, prosecuting:
HH: My duty is to apply the law, I was - I am bound by my -
The accused: You would not know the law from a bull's foot. You are -
HH: I was bound --
The accused: You are a silly old man, and a rather -
HH: Yes, very well. You may leave -
The accused: - a rather nasty old man as well.
And to Adams:
The accused: Listen, shut up, fat arse. Shut up, you stupid fat slob.
Mr Justice Adams is now suing Fairfax Media for defamation over reports about his handling of the prosecution case.
Banana Benders will be having a hard time picking their greatest moment of glory.
However, the Queensland District Court judge in Ipswich, Greg Koppenol, was in a class of his own and must be in poll position to take out a prize.
He instructed the jury in a rape case to give the accused the benefit of the doubt:
"Like an LBW decision ... you know, you can look at where the front foot is, you can look at the height of the ball, you can look at the snicker [sic] and any other replays that are available. And if you're satisfied of all those things, the batsman's out."
Koppenol's grasp of the lbw rule is no firmer than his grasp of criminal law. President Margaret McMurdo wasn't so sure the accused was out and along with John Muir and Debra Mullins sent him back to have another crack at scoring a few runs.
This is almost comparable to the 2009 drama surrounding Greg's wardrobe and the crooked mirror in his chambers.
Koppendol's associate Dearne Kraschenefski emailed the Ipswich court registrar, Jason Schubert, seeking to press him into action.
"The mirror is crooked and the cupboard is far too small. Judge's robes don't fit in it without them dragging on the bottom of it."
Koppenol also complained, when occupying the office of presidential member of the Land and Resources Tribunal, with the "status of a Supreme Court judge", that his toilet was smaller than that enjoyed by his peers.
At least he was not appointed CJ.
The defenestration of the Qld Crime and Misconduct Commission by the Newman government was another special achievement, along with associated complications.
Dr Ken Ley, the acting chair of the commission, had been under investigation by the parliamentary crime and misconduct committee for allegedly giving misleading evidence about his riding instructions from Newman operatives over penning a patsy article for The Bowen Hills Bugle, which puffed the government's lawn order agenda.
Newman then sacked the crime and misconduct committee before it could undertake its investigation and the job was handed to the parliamentary ethics committee, which made heavy weather of the task.
Things got spicy when it was revealed that ethics committee chairman David Gibson MP had a conviction for stealing from the Australian army.
Independent MP Scott Elmes was the one who unveiled details of Gibson's unfortunate conviction.
Corporal Newman promptly referred Elmes to the ethics committee for having the temerity to spill the beans on poor Gibbo.
Criminal convictions by LNP members of parliament are supposed to be kept secret.
Qld barrister Stephen Keim was also the target of revenge politics. He had a crown brief in an administrative law case, but it was stripped from him days after he appeared on the ABC's PM program criticising the Newmanites over policies designed to keep sex offenders behind bars, even if judges ordered their release.
Instead, Roger Traves was handed the brief. "No Waves" Traves had been providing helpful advice to the Boy Attorney General, Jarrod Bleijie, on sex offender policies.
Traves junior was Dearne Galbraith, a former "policy adviser" in the BAG's office.
However, nothing held a candle to the huge brouhaha over Newman's appointment of the government's pet chief magistrate as chief justice.
At the time of the announcement in June, Tim Carmody put his credentials squarely on the table. Despite the government insisting he had a "fine legal mind", Timbo thought otherwise:
"I've often said, and I'm sure nobody will argue, that I may not be the smartest lawyer in the room, and if you were in a room with me and I was the smartest lawyer it would be a good time to leave it. But there's more to being a chief justice than a black letter lawyer. There are plenty of them already on the Supreme Court, and I don't aspire to compete with them for intellectual rigour."
See also: Carmody Watch
The fusion of law and politics was also graphically illustrated by Northern Territory magistrate Peter Maley, who set a cracking pace helping his political benefactors by handing out Country Liberal Party how-to-vote cards at polling stations and sitting as a director of the CLP's corporate slush fund, Foundation 51. He remained an acting party member for at least eight months after he was appointed a Top End Madge.
NT attorney general and former copper John Elferink explained the separation of powers in this way:
"The good thing about this is democracy and freedom of speech. A magistrate in the Northern Territory is allowed to have a political opinion. What sort of a society are we living in? It is a fantastic society where a magistrate can have a political opinion, where he can be a member of a political party ... Thank you very much, Peter Maley, the magistrate who has shown an interest in the Country Liberals ..."
Justice Adams is not the only notable figure suing to repair the contumely to their peachy reputations. Treasurer Joe Hockey is dragging poor old Fairfax to the Federal Court over articles in The Sydney Morning Herald and other organs about north shore businessmen chipping into a slush fund in return for cosy drinks and lunches with the dazzling treasurer.
In fact, it was the North Sydney Forum which repaid money donated to Hockey's election campaign by Australian Water Holdings.
The headline on the Fairfax story seems be the problem - "Treasurer for sale". It takes a special skill to damage an otherwise impeccable article with a stupid headline, and Darren Goodsir, the editor of the SMH, has that special skill.
Not only that but Goodsir and the editor of The Age, a gentleman called Andrew Holden, committed their feelings about Hockey to writing. They were incensed that Hockey wanted an apology for an earlier story about donations from AWH. Goodsir told Holden he was angry at being contacted at 1am by Hockey's staff.
"They have a f---ing hide ... I feel pissed off they called me so early."
Holden: "The simplest approach is to dig into NSF … in that story you can run Hockey's claim he knew nothing … beyond that, f--- him.
Amazing they freeze us out and then think they have the relationship that allows them to call in the middle of the night."
Goodsir: "Are we not better to have a red hot go at the issue next week, and really go for it … after the day we've had, I ain't going to run this – but am more than keen to develop a North Sydney Forum plan for next week."
On March 27 Goodsir wrote:
"F---ing Brilliant … given what Andrew and I endured last week with Hockey, I want to have this nailed to the cross in more ways than one … keep digging Sean [Nicholls] … I have long dreamed (well, only since last Friday), of a headline that screams: 'Sloppy Joe'! I think we are not far off, but perhaps even more serious than that."
Hockey is pleading, among other things, that he "accepted bribes paid to influence the decisions he made as treasurer".
Before Justice Peter Jacobson entered the courtroom for a directions hearing, Bruce McClintock, for the plaintiff, told Fairfax Media's barrister, Sandy Dawson: "If the imputations are conveyed you are f-----."
Dawson replied, "I assume you have given the treasurer the same advice with a 'not' in the first part of that sentence."
Rupert Murdoch's former local satrap and press freedom burbler, Kim Williams, extracted $95,000 in damages from Fairfax, plus costs, after the SMH and other papers reported that he had a hissy-fit at an Opera House Trust board meeting over arrangements for the restaurant contract.
The Department of Foreign Affairs and Trade scored a nice home goal with Justice Elizabeth Hollingsworth's super-duper injunction to prevent reporting of bribery allegations, which involved south east Asian political figures and their families.
The allegations arose in the Securency bribery case before the VicSupremes. The super-injunction, which not only prevents publication of the allegations, but the detailed terms of the injunction itself, only came to light because WikiLeaks published the intimate details on July 29.
While Australia's mainstream media cannot publish the information, anyone can read the fascinating details on WikiLeaks and elsewhere online.
Indonesian president Susilo Bambang Yudhoyono must have been looking at WikiLeaks because he asked the Australian government to tell him what the hell is going on.
He was shocked that there were Indonesian leaders among those listed in the super-injunction. Our diplomats in Jakarta have been grovelling ever since.
Another diplomatic coup for DFAT.
The AFP raid on the offices of Channel 7 and its lawyers at Addisons was another triumph.
The federal sleuths were hunting down details of any payments that Seven might have made to the Corby clan in pursuit of an interview with Schapelle.
Justice Jayne Jagot in the Federal Court found that the warrants and orders issued under the Proceeds of Crime Act were way out of line.
Addisons' partner Justine Munsie received a nice grovel from AFP boss Tony Negus:
"The AFP has consistently acknowledged that you are not, and have not ever, been suspected on committing any offence.
On behalf of the Australian Federal Police, I apologise for the error and any distress it has caused you."
Nor should we forget journalistic adornment Chris Kenny's defamation case against the ABC over the dog-fuc*** skit. The freedoms campaigner sued because he thought people might think less of him if he had intercourse with dogs. He didn't sue over the real meaning of the skit: that he is bore.
Politics and law maintained their carefully choreographed pavan in many other ways.
The twinkle-toed James Ashby, finally dropped his sexual harassment case against the former Speaker, Peter Slipper.
The honey-pot had won his appeal against Justice Steven Rares' finding that the was a "scandalous" abuse of process.
This was one of the grubbiest political exercises in recent memory and had the fingerprints of Poodles Pyne, Mal Brough and News Ltd all over it.
In September, Ashby appeared on 60 Minutes and revealed that Pyne promised him him a job and legal support if he sued Slipper for harassment.
This directly contradicted Poodles' denial that he had no prior knowledge of Ashby's allegations. Michael Harmer, Ashby's lawyer, is now whistling for over $1 million.
Another huge political stitch-up was that of David Hicks, former Guantánamo inmate.
After six years at the Bay, Hicks entered a plea bargain in March 2007 before a US military commission to a charge of "material support for terrorism". This military offence was invented after Hicks allegedly committed it.
In July, all seven judges of the US court of appeals for the DC circuit found that material support for terrorism is not a war crime triable by military commission.
The US Senate Intelligence Committee published a report which detailed the CIA's record of torturing detainees. The CIA misrepresented just about every aspect of the program to the administration. Tellingly, no "high value detainee" at Guantánamo Bay, who has been subjected to "enhanced interrogation", has been given an open trial.
Former PM John Howard expressed dismay that his justification for Australia's involvement in the Coalition of the Willing's War on Terror had evaporated. On discovering that there were no WMDs in Iraq, he told Dame Janet Albrechtsen, in September:
"I felt embarrassed. I did, I couldn't believe it, because I had genuinely believed it."
The National Commission of Audit (aka the Business Council of Australia) reported to the government in June.
It recommended winding-up most of the Australian Government Solicitor because it "competes with the private sector in the contestable government legal services market"; merging the Federal Court of Australia with the Family Court and Federal Circuit Court; and scrapping the independent Australian Law Reform Commission.
The Productivity Commission's report on access to justice emerged in November.
It reported some disturbing statistics: Private solicitors' hourly rates in Australia commonly range between $350 and $600. Yet the average full time employee earns $34 per hour.
As one senior lawyer quipped, "I couldn't afford my own services." As another said: "We have simply priced ourselves into oblivion."
Bogan businessman John Singleton had some sage advice in May for his bovver-boy shock-jock Ray Hadley, who was experiencing marital difficulties:
"They always say glass half full, glass half empty ... call me old-fashioned, but I'd rather see a glass thrown at some bastard's face ... Remember Ray, mate, you got a long way to go ... you got three [marriages] to go to get me ... so get used to it buddy."
In August, Julian Assange announced that he would be leaving the Ecuadorian Embassy in London "soon".
WikiLeaks' spokesman Kristinn Hrafnsson added: "His bag is packed."
Assange remains holed-up at the embassy.
The achievements of Gough Whitlam's government came bubbling to the fore after the great man shuffled off the mortal coil.
- The Family Law Act;
- The French nuclear testing case before the International Court of Justice at The Hague;
- Creation of the Australian Law Reform Commission;
- Ratification of the international conventions on the elimination of racial discrimination, civil and political rights and on economic, social and cultural rights;
- The Racial Discrimination Act;
- Senate representation for the territories;
- The Trade Practices Act;
- Guidelines for foreign investment in Australia;
- Corporations and Securities Industry legislation;
- Restoring Wilfred Burchett's Australian passport;
- An "open government" policy, with the introduction of Freedom of Information legislation and the creation of the Office of Commonwealth Ombudsman;
- Creation of the Institute of Criminology and the Criminology Research Council;
- A committee dealing with the computerisation of criminal data;
- Insisting that ASIO be accountable to the minister and parliament.
- Abolition of appeals to the Privy Council;
- Amendments to the National Service Act to abolish military conscription. Dropping prosecutions against conscientious objectors;
- Abolition of imperial honours;
- A competition to choose a new national anthem to replace God Save the Queen;
- A new royal title: Queen of Australia;
- The removal of the royal insignia from post boxes;
- Abolition of capital punishment for Commonwealth crimes;
- The implementation of the system of Senate select and joint committees;
- The establishment of the Australian Legal Aid Office;
- Expanded categories of people eligible to be marriage celebrants.
It's an extraordinary law reform legacy, with a lot of complex legislation shepherded through a hostile Senate by attorney general and Senate leader, Lionel Murphy.
Just before Christmas, a gunman held 17 people hostage at the Lindt café in Sydney's Martin Place. Two of the hostages were killed, barrister Katrina Dawson and cafe manager Tori Johnson.
It appears that the gunman, Man Monis, had dropped off ASIO's watch list in 2009, the same year AFP knew he had condemned an Islamic school principal as a "traitor" and a year after the police knew he was writing "hate mail" to the families of Australian soldiers killed in Afghanistan.
Prime Minister Abbott announced that there would be an "urgent inquiry" into the siege. He said there were questions "begging" to be asked.
The ABC reported that there would be nine terms of reference, including the circumstances of Man Haron Monis' arrival in Australia, why he was granted citizenship, what welfare he received, how he was able to access a gun, what information security agencies had about him and how that information was shared.
NSW police commissioner Andrew Scipione said Monis might not have been granted bail after he was charged with being an accessory to the murder of his wife had he been on a terror watch list - a federal responsibility.
Liberal Democrat senator and former vet David Leyonhjelm said citizens should be allowed to carry guns.
Happy New Year.