Holiday reading ... 2016 in many respects was a dispiriting year ... The cruel machinery of the criminal law caught up with a few notorious suspects ... Clumsy politics from the Commonwealth attorney general ... Even worse from the NSW government ... Sir John Kerr's tax dodge ... Synchronicity at the Federal Court ... Tasmanian fermentations ... Future for Brandis? ... Death at Runaway Bay
Reviewers and archivists have fulfilled their annual duty by reminding us of the biggest moments of 2016 in politics, economics, the media and social mores. It’s this columnist’s solemn duty to reprise the highs and lows, big and small, of that other branch of government – lawyers and the law.
And what a year it was: great trials; the courts struggling to keep up; and citizens caught in the cruel machinery of criminal justice. Indeed, no sooner had the cell door slammed behind Eddie Obeid snr, than he wanted to be out of Silverwater and home for Christmas. It’s all been a terrible mistake and Eddie was been a victim of a miscarriage of justice.
His lawyer told the court of criminal appeal that the former politician needs bail because it would be a “tragedy” if he was subsequently acquitted after spending Christmas doing porridge. Plus, he’s ill and his crimes had no victims (unless you count the revenue of NSW as a victim).
No Christmas cheer for Eddie. He will have to wait until March before the court hears his appeal against conviction and sentence. Still, it was an inspirational moment for every convict in the system who thought they too should be home for Christmas.
There was also another outing for prison greens on CCTV as inside trader Oliver Curtis made a lunge for Christmas freedom, contending that inside information was not really inside at all. It was barely even information. The judges were unmoved. The jury got it right. No plum pud for Ollie with Roxy.
The sentencing proceedings for Harriet Wran, daughter of former NSW premier, Nifty Neville Wran, were an altogether happier experience. On July 26, Justice Ian Harrison sentenced her to one year for harbouring, maintaining and assisting an associate, Michael Lee, after the death of a drug dealer Daniel McNulty. For robbery in company she got four years, commencing August 13, 2014 and expiring on August 12, 2018, with a non-parole period of two years, expiring on August 12, 2016.
Since Harriet had been in prison for nearly two years she only had another 16 days in pokey for the robbery in company and accessory after the fact to murder.
It was interesting that the judge discounted the sentence because of “egregious articles” in the Daily Telegraph, including such gems as: “Nev’s daughter seeks get-out-of-jail deal in drug murder case” and “How I Ended Up in Hell” plus “Sex, drug binge after murder”.
Because of this “media discount” is it possible to imagine that prison sentences could be increased following flattering media publicity about an offender, i.e. a media penalty?
There were murmurings in Phillip Street as to whether an Indigenous offender or a disadvantaged citizen from the western suburbs, who faced similar circumstances, would have received as compassionate a sentence.
And who can forget the life sentence for murder handed down to two former coppers, Roger Rogerson, 75, and Glen McNamara, 57? They were after Jamie Gao’s 2.78kg of ice and one of the numerous lines of defence was that Gao shot himself in the chest, twice.
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Generally 2016 was significant for the defenestration of a number of important institutions, including ICAC in NSW and the office of the Commonwealth Solicitor General.
First Law Officer, attorney general George Brandis, put Second Law Officer Justin Gleeson on a leash with a special legal services direction that required the written approval of FLO before any minister, department or agency could seek an opinion from SLO.
Among other things it seems FLO was upset that Gleeson had taken an independent view on Western Australia’s legislation seeking to reorder the carve-up of assets from Alan Bond’s failed Bell Group – a scheme which the taxation commissioner asked Gleeson to challenge in the high court.
A Senate committee has under investigation the nature of any cosy agreement between the WA Liberals and the commonwealth to run dead on legal issues arising from the Bell Act. Brandis denies knowledge of any agreement.
A majority of the same committee last year also found Brandis had misled parliament when he claimed to have consulted Gleeson about the legal services direction. At one stage the attorney suggested the SG had been in agreement with the new directive - in other words, mysteriously, the solicitor general wanted to be put on a lead.
Now we have a new solicitor general, Dr Stephen Donaghue, from the Victorian bar. Donaghue pitched up at the bar pretty much direct from his PhD, which was on the law of commissions of inquiry and royal commissions - and just in time to spend the first couple of years assisting the Cole Commission on the building and construction industry.
His wife, Professor Carolyn Evans is the dean of law at Melbourne University, with her academic focus on the intersection of law and religion. Donaghue’s bar work almost exclusively has been for the commonwealth, state governments and agencies. He says he has appeared in over 40 high court cases, constitutional and non-constitutional.
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Meantime, the NSW government put ICAC, the independent corruption fighter, on a short lead just after it made adverse findings about the fundraising activities of a brace of Liberal Party politicians.
Commissioner Megan Latham resigned as the Liberals and its upper house cronies passed amendments, replacing the commissioner with a three person outfit and putting a stop to public hearings, unless the chief commissioner and one other agrees that an enquiry should be open.
Effectively, it’s a way of exposing corruption in private. Three cheers from the usual carpet-baggers and log-rollers.
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Historian Jenny Hocking in her book (The Dismissal Dossier) about the sacking of the Whitlam government by governor general Sir John Kerr reveals that Kerr went to extraordinary lengths to avoid tax on income from his memoirs, Matters for Judgement. Apparently, his tax free income as GG was not enough.
Law firm Allen Allen & Hemsley used an “Uncle Charlie Scheme” for Kerr – it involved a trust in the UK, a company in the Netherlands, a second company in the UK, and necessitated Kerr to fly to Hong Kong using the pseudonym “Mr Frederick King” to sign the paperwork.
Hocking describes the arrangement as “a triumph of legal chicanery over personal, and vice-regal, propriety”.
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A certain amount of synchronicity crept into a memo issued to staff at the Federal Court of Australia. It was written by Darrin Moy, the court’s director of people, culture and communications. Previously he was general manager people and culture at Sydney Ferries.
In a bulletin to court staff about the enterprise bargaining position, he warned that the financial position is tight. There will need to be “productivity initiatives” and permanent improvements in “output”.
Moy explained what was happening with productivity and technology out there in the wide world:
Productivity can be seen across the economy. Years ago a top-of-the range laptop cost about $5000 and by today’s standards it would be an absolute brick. Current laptops run rings around what was possible years ago and now cost about $2000. Airfares are a similar story. Fifteen years ago, a flight from Sydney to Melbourne cost around $400. Then, you stood in a queue to check in, brought a magazine for entertainment and knew you’d be out of contact for the entire flight. Now, the average airfare is about $160.
Funny. It was precisely what Alan Joyce told readers of the Qantas Magazine that very month. You can see this remarkable example of synchronicity here.
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The latest fermentation from former Tasmanian solicitor general Leigh Sealy’s Hobart brewery made a public appearance. It’s labelled “Nettle’s Best” in honour of High Court judge, Geoffrey Nettle.
The stout, described as being “for mature gentlemen”, was brewed as part of the festivities to mark the wedding of Victorian supreme court judge, Peter Vickery.
The “hard” water traditionally used in stout production, had to be tanked in from bores in Canberra. Nettle’s Best is described as slightly pungent on the palate with a penetrating nutty and dry after-taste and an aroma of old slippers.
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On December12 , attorney general George Brandis was asked at Senate estimates about his future. Here is the exchange, from which various conclusions can be drawn.
Senator Murray Watt (ALP Qld): “So you don’t rule out taking on a diplomatic or judicial appointment?”
Senator Brandis: “I’m not at liberty to answer your question, senator.”
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Meanwhile, the charade that is the section 18C “debate” proceeds, driven by people who have never before in the long history of the topic expressed the slightest interest in free speech.
That is evident because they have a slender grasp on what constitutes freedom of speech, confining it to the right to hurl unpleasant and hurtful remarks at racial or ethnic minorities.
A joint parliamentary committee with unhelpful terms of reference is charged with examining “freedom of speech in Australia”.
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Death notice of the year goes to Dr Thomas Oettle, who died on October 2.
Oettle was known to many lawyers because he was former director of the NSW division of forensic medicine and as such he was the pathologist in-charge at the Sydney Morgue. His notice in The Sydney Morning Herald read:
“Late of Castra Place Double Bay, ran away to Runaway Bay, Gold Coast. Occasional father to Ingaret, Jess, Howard, Ruth and Tom; and possibly Catherine, Caroline and Debbie (we think!).”