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28 April, 2009  
Goings On ...

Secret incomes to guide VicBar subscriptions …The fate of The Mensch’s gong … When Turnbull poisoned the fountain of justice … Fiji and Sackville … Adams J gets UN gig … Meeting Rex Jackson

imageThis will be a challenge. An honour system for annual fees has been introduced by the Victorian Bar ‘n’ Grill.

Lord Digby, the Bar prez, has notified the rank and file that from now on bar subscriptions will be determined by income rather than seniority.

He explains that the world has changed and that being a long term stayer at the grill can no longer be regarded as “a fair guide to growing income”.

“In recent times, the fixing of subscription levels by seniority has proven to be somewhat unfair and inequitable and has led to many requests for dispensations and discounts.”

The new subscriptions will range from $3,590 for those with an “estimated income” over $700,001 down to $350 for those under $50,000. For mid-range people on $250,000 to $300,000 the going rate will be $2,550.

It’s the secrecy protocol that governs this arrangement that is the source of so much delight.

Only a limited number of bar office staff, “controlled by the manager”, will be able to peek at members’ income declarations. They will all be required to sign confidentiality agreements. Sensitive information will be contained in “envelopes”. Income declarations entered on the database will be blocked and only “assessable” by special password. All declarations will be stored in a secure place and, after a time, destroyed. Under no circumstances will any member of the bar council be able to have a look.

That’s all OK then. Honour is guaranteed.

* * *

imageGG Quentin Bryce (pic) said she would give her “deepest consideration” to the matter of Marcus Einfeld’s Order of Oz.

She told ABC wireless when she was in the Dark Continent: “I am very conscious of my responsibilities there.”

What she might also be conscious of is The Mensch’s time as president of the Human Rights and Equal Opportunities Commission while she was the federal Sex Discrimination Commissioner.

I’m reliably informed that at one of the monthly meetings of commissioners The Mensch became mesmerised by Quentin’s embonpoint.

After the meeting he pursued the future Governor General into the corridor and, in his subtle way, put the hard word on her.

Quentin was outraged and threatened to report him to herself for sexual harassment in the workplace.

I’m sure this regrettable event in no way influenced Quent in her decision, gazetted on April 24, to confiscate The Mensch’s bauble.

* * *

Meanwhile, Marcus is contending that he is not guilty of professional misconduct.

The NSW bar wants him off the jam roll. The Living Treasure has agreed to a declaration that he is not fit and proper, but is holding out on the professional misconduct point.

Lawyers for both sides are beavering away on an agreed statement of facts and if The Mensch doesn’t concede it will all go to a hearing.

It returns to the Supreme Court on May 7.

* * *

imageNotably absent from the heartfelt condolences for Frank Costigan’s family and friends was Malcolm Turnbull.

Turnbull spent part of his career on the payroll of Kerry Packer and during the Costigan Royal Commission into the Federated Ship Painters and Dockers he was the old thug’s mouthpiece.

The Royal Commission’s Squirrel file, with all the unsavory accusations against Packer, was leaked in 1984. It was rebadged as “the Goanna” file by The National Times.

Packer subsequently outed himself as the Goanna, denying that he was associated with fraud, pornography, murder and drugs.

The Silver Bodgie as PM got poor old AG Lionel Bowen to climb to his feet in the parliament and give Packer a clean bill of health – without bothering with any investigation.

In the meantime, Turnbull attacked Costigan and counsel assisting Doug Meagher.

Just before Packer commenced defamation proceedings against Meagher the bumptious Turnbull declared:

“Meagher and Costigan have conducted themselves most reprehensibly in failing to stop an unauthorised and illegal leak of information which was inevitably going to do immense or irreparable damage to the reputation of Kerry Packer.”

On the day that the statement of claim was to be issued Turnbull was interviewed on the ABC’s AM program, where he over-reached himself.

He claimed to have “significant evidence” that Meagher had leaked these documents.

Not so. No particulars were provided to the court and the failure to provide them was never explained.

Later Packer tried to discontinue his action. Meagher sought to have the notice of discontinuance struck out and instead have the proceedings dismissed as an abuse of process.

Justice David Hunt did find there had been an abuse of process and added that Turnbull had “managed effectively to poison the fountain of justice immediately before the commencement of the present proceedings”.

Turnbull later went on to do a bit of “unauthorised” leaking of his own – notably slipping a dossier of notes damaging to Packer to the head of the Australian Broadcasting Tribunal, Peter Westaway.

The documents were handed over in a clandestine fashion in a car at night. Turnbull told Westaway: “I fear for myself, for my family, for my career.”

* * *

imageJustice Ronnie Sackville (now an acting NSW Supremo) was upset that R. Ackland in a Sydney Morning Herald op-ed column said that he had accepted an appointment as a judge of the Fiji Supreme Court by the illegal Bainimarama military junta.

From London Ronnie (pic) fired missives to the editor of the newspaper saying that he was troubled by this slur on his reputation.

He wanted a letter published to correct the story. The critical thing seems to be when does a judge become a judge? When an offer of appointment is accepted or when the commissioning and swearing-in take place?

The initial version of Sackville’s letter to the editor confined his protest to saying that he had been appointed by the democratically elected government of Fiji and like a number of other Australian judicial colleagues he had made it clear that he would not accept reappointment under the military regime.

After a bit of to and fro with the editorial people the letter that finally appeared on April 22 contained this additional information:

“I was appointed in April 2006 for a term of three years from that date. As it happens, I did not participate in sittings of the Supreme Court until August 2008 when I took an oath of office pursuant to the constitution of Fiji.”

I thought that paragraph a bit confusing, so to clarify here is the sequence of events:

1. April 18, 2006 an offer of an appointment to the Supreme Court of Fiji is made to Sackville by the Qarase government.

2. April 19, 2006 offer is accepted.

3. December 2006 the Bainimarama military junta takes power.

4. July 15, 2008 Sackville is sworn in at Government House as a judge of the Fiji Supreme Court.

At the time of his swearing-in as a judge the illegal government had been in power for 18 months.

* * *

Much wailing and gnashing of teeth at the news that Justice Michael Adams from the NSW Supremes will take a year’s leave of absence from July 1 and head to New York for a job with the United Nation’s Internal Dispute Tribunal.

The tribunal has been created to resolve internal disputes among UN employees. It can make binding decisions on a wide variety of things, including allegations of harassment, intimidation and discrimination.

About 237 judicial types applied for gigs on the Dispute Tribunal and the Appeals Tribunal.

Our loss will be the UN’s gain. The international peace organisation will be bowled over by His Honour’s unique interventionist style, the rapid way he arrives at an early conclusion, his bear-like charm and his exciting flashes of ostensible bias.

Come back soon.

* * *

imageWhat a thrill.

The editor tells me that he ran into none other than Rex (Buckets) Jackson at the Wentworth Park dogs on Easter Saturday (see pic).

The Golden Easter Egg was the main race of the night and Rex seemed to pick winners for most of the events on the card.

How does he do it?

The former NSW Prisons Minister, who spent a bit of time in one of the institutions in his portfolio, says he has residences at Helensburgh and Darling Point and is as fit as a trout.


Reader Comments

Posted by: Anonymous
Date: April 23, 2009, 4:40 am

Re: Sackville J Albert Bathurst Piddington accepted appointment to the HCA (and, from memory, the appointment was gazetted). However, he was never sworn in. Still, under the relevant provisions of the Constitution / Judiciary Act (analysed, again from memory, by Young J in some ALJ editorial), he was for a month or so, in between acceptance of appointment and resignation, a Justice. The position would appear to be the same for the HCA today - s 11 of the HCA Act. It's too much like hard work to track down the provisions of the Fijian Constitution under which Sackville J was appointed. However, if they are the same, it must be that Sackville J did not accept appointment from Bummierama. However, he did allow the regime to make the appointment "go live" by swearing him in or, in other words, letting him take office. So perhaps the question should not be whether Sackville J should have accepted appointment but rather whether he allowed the regime to activate that appointment. Should he instead have immediately resigned?
Posted by: Anonymous
Date: April 23, 2009, 4:42 am

Further to my previous post, it's worth adding that it seems clear from your other story that incumbent expatriate (and other) judges have done some good in Fiji in the past few years. If Sackville J felt that it would be better to work from within in ameliorating bad governance in Fiji, then perhaps this is understandable. After all, assuming the Piddington analogy is right, Sackville J was already a judge of the Fijian Supreme Court. All the regime was doing was activating that status. Sackville J had already indicated he would not seek reappointment. There is no suggestion that he had been specially selected for activation while others weren't (right?). Thus, he could work as independently and effectively as possible on the Fijian Bench. The only hole in this argument is: does not the same reasoning apply to someone who accepts a judicial appointment for a fixed term from Bainarama now, on the condition that they will not seek its renewal? And is my foggy memory of Anthony Mason and some other notables quietly resigning from the Fijian courts following a previous coup accurate? On the other hand, is it radically different from accepting judicial office in Kenya under Moi (as did Butler Sloss's husband) or Brunei (as do retired Hong Kong judges)? Is some level of complicity in a jurisdiction with questionable governance almost inevitable for an expatriate judge? There's no simple answer to this and I think it's a bit unfair to single out Uncle Ron. Perhaps an expatriate judge accepting appointment or activation from a regime showing utter contempt for the rule of law, not to mention violence, would be better off dipping out altogether. But once you pick apart the circumstances of many jurisdictions utilising expatriate judges, it becomes harder and harder to distinguish Fiji from elsewhere. So perhaps there's something to be said for doing good from within. If I were Sackville J, I would have quiety mulled all of this over, come to a personally satisfying conclusion, challenged the probably incorrect accusation that I was appointed by the regime and otherwise got on with the job. This seems to be what he's done.