The retiring Philip Selth ... Living underground for 19 years ... Long haul boss of the NSW bar bows out to write biographies and history ... Former bureaucrat who knows where a lot of bodies are buried ... He's fidgety but has succumbed to the couch 

Philip Selth: The Carnival is Over (pic by Mark Tedeschi QC)

PHILIP Selth, after 19 years in the job, has retired as executive director of the NSW Bar Association. He came to Phillip St from the Australian National University, where he was pro-vice chancellor in charge of planning and administration. 

He has spent time in the Queensland and Northern Territory public service and from 1981 to 1987 he was an assistant secretary and then a first assistant secretary in the Department of Prime Minister and Cabinet. 

His career in public administration also spanned the New Zealand Ombudsman's Office and the Commonwealth Attorney General's Department. He started on the long and winding road as a graduate clerk at the Department of Customs and Excise. 

He's an enthusiastic historian and his biographies of Eric Miller QC, Kevin Murray (barrister and soldier) and Daniel Joseph Leahy (PNG explorer and gold miner) have appeared in the Australian Dictionary of Biography. His degrees in arts and law are from the ANU. 

For now Selth remains the chief executive officer of the Australian Bar Association. While he's been attending the VicBar-ABA conference we wrestled him onto a couch in the Betty Cuthbert Lounge at the Melbourne Cricket Ground. 

Describe yourself in three words.

Grumpy old workaholic.

What are you currently reading? 

A pile of books on Donald Trump - and for pleasure, the latest Inspector Montalbano mystery.

What's your favourite film?

"Cat Ballou."

Who has been the most influential person in your life? 

My Dad - who gave me a love of history and of writing.  

When were you happiest? 

The day my son was born. 

What is your favourite piece of music? 

The Seekers "The carnival is over" (that dates me). 

Has the Bar Association changed over 19 years and if so in what way? 

The size and geographic dispersion has unfortunately diminished the collegiality of the bar. The opportunities for young barristers to be on their feet in court are few and far between. 

What is in your refrigerator? 

Stuff that has taken on an identity unknown to human kind because I have delayed cleaning it out.

What makes you frightened? 

Donald Trump. 

Who would you most like to be with in a lift that has broken down? 

Lyndon Baines Johnson - preferably alive.

If barristers are so independent, why do they need an association?  

Because administrative and political skills are not mandatorily attached to practising certificates.

What is the work of which you are most proud? 

The introduction of BarCare and of the national ABA conduct rules that became the Legal Profession Uniform Conduct (Barristers) Rules 2015. 

What have been your best and worst moments as CEO of the NSW bar? 

Being made a life member and saying goodbye to my staff. 

What was the most important opportunity you didn't take? 

Finish my PhD.

If you were on death row, what would you request for your last meal? 

A good sirloin steak, mashed potato, garlic, fried onions, peas, mustard and a very expensive Shiraz - assuming the government was paying.

If you were a foodstuff, what would you be? 

A TeeVee snack - because I am no longer able to eat them.

Who do you most admire professionally?

General Ulysses S. Grant. 

What are you going to do now?

Try and finish draft books on PNG WW11 coast-watchers and Japanese war crimes on Ambon. 

What would you change about Australia?

The present toxic nature of federal politics.

What would your epitaph say?

He now need not get up at 5.30am each day to read newspapers that he does not wish to read.

What comes into your mind when you shut your eyes and think of the word "law"? 

The reluctance of some politicians and elements of the media to accept and enhance the rule of law.

Sydney's newest chambers with bold ambitions ... Generous open spaces ... Seeking engagement with the wider world ... Feature laden fit-out ... Francis Greenway - an inspiration and a cautionary example  

Greenway Chambers: looking down on Francis Greenway's rooftops - the old Supreme Court, St James and the Barracks

JUST about 200 years ago Governor Macquarie appointed the convict cheque forger Francis Greenway as government architect. 

His first assignment was the lighthouse at the entrance to Port Jackson on South Head. Such was the triumph of that project that he was emancipated by Macquarie and went on to design many a splendid thing, including Hyde Park Barracks, St James Church in King Street and, next door, the original Supreme Court. 

Despite these successes, life did not unfold smoothly for Greenway. He fell out with Macquarie over fees charged while he was retained by the government and later he was dismissed by Governor Brisbane. 

His work did not prosper and by 1835 he was destitute again and had to solicit "patronage from his friends and the public". He died of typhoid in 1837 and is buried at Maitland in an unmarked grave. 

Sydney's newest and possibly most strikingly designed set of chambers right opposite the old Supreme Court takes its name, not from a grand figure of the law but, from this bankrupt convict.  

Images of his draftsmanship and his buildings are very much to the fore in the artwork that adorns these chambers - stretching over three stories on the corner of King and Elizabeth Streets. 

After the right building was located, offering a 10+10 years lease, the project took two years to complete, driven by a handful of barristers, including Ian Roberts SC, Richard Sergi, Frank Corsaro SC, Derek Hand, Kellie Edwards, Ingmar Taylor SC, Lucas Shipway and Ben Bradley. 

Siren Design was commissioned to do the fit-out, coming with the pedigree of interiors for Facebook Singapore, Google Melbourne, Accenture Sydney, Twitter Singapore, Lonely Planet Melbourne, and BNY Mellon Sydney. 

A wide staircase links the three floors with between 10 to 12 barristers on each deck - about 31 in all.

The idea is to open the chambers to the city, with space for functions, events and launches. There's an in-house cafe, an encouragement for barristers to stop hibernating, to emerge from their caves and get to understand each other's practices. 

There's a program of CPD seminars, some of which are live streamed to selected law firms. Last month Greenway hosted an Arbitral Women Seminar, with the London-Sydney barrister Rashda Rana SC, also streamed to Perth, Brisbane and Melbourne. 

For enthusiasts of "work-life balance" there's a Friday yoga club with an in-house instructor - free for solicitors and other members of the bar. The chambers also hosts a cycle club which participates in the Gong Ride and the forthcoming Bobbin Head Classic. 

O'Hehir: pushing the boundaries

Greenway's foundation clerk is Tobias O'Hehir, who previously clerked at 9 Wentworth and Maurice Byers. He's a UTS graduate in communications and had just completed his LPAB. Assistant clerk is Nathan Dobbie, another communications graduate, who came from Tenth Floor Chambers in Phillip St. 

The communications experts in the nerve centre are the clue to Greenway's polished level of engagement with the profession and reptiles of the press.  

Justinian enquired about the head of chambers, only to be advised that Greenway has a "democratic structure" - but the most "senior member" is former Family Court judge Stephen O'Ryan QC. 

The chambers has a strong tilt towards building and construction work; plus briefs who ply their trade in commercial; industrial and employment; common law; and fittingly, land and environment - along with boutique areas such as transport and sports law. 

There are five mediation rooms and seven accredited mediators. 

A significant number of the foundation members migrated from State Chambers, with others from 6,7,9 and 10 Wentworth, Denman and Blackstone.  

Flexible arrangements have also attracted door tenants and associate members. 

Greenway has a company title, shareholder structure, beginning life in February, with the ribbon officially cut in August. 

It's still early days, but O'Hehir says he's keen to push the boundaries of what a set of chambers can be. He says the indications have been encouraging and he's looking to the next phase of building a solid base for Greenway's future - no doubt hoping not to emulate Francis Greenway's economic track record. 

Certainly, it's a bold and brave investment at a time of uncertainly for much of the bar. 

See: Greenway Chambers  

Stephen Walmsley SC, former judge and author of The Trials of Justice Murphy is on Justinian's couch ... A vexed chapter in the High Court's history ... The man from Yass rakes through the historical ashes ... The Paul Flannery connection ... Issues with refrigeration 

Stephen Walmsley was born in 1946. He attended Yass Primary Schoool and later Canberra Grammar. His LLB came from the ANU in 1968 and he did articles at Allen Allen & Hemsley. For a time he was a solicitor at the mighty law shop. 

He returned to Canberra in 1971 and joined Macphillamy Cummins & Gibson, followed by nearly 20 years at the Canberra and Sydney bars. He took silk in 1997 and four years later was appointed to the NSW District Court. 

He has been an acting judge of the NSW and ACT Supreme Courts. 

He retired in 2013. Apart from The Trials of Justice Murphy he is the joint author of Professional Liability in Australia (Thomson Reuters, 2016, 3rd. ed). 

Walmsley: Lionel liked to help people

Describe yourself in three words.

Irritable, stern, lucky.

What are you currently reading? 

"All that Man Is" by David Szalay.

What's your favourite film?

Richard Linklater's "Boyhood". 

Who has been the most influential person in your life? 

My mother, who insisted on an education, most of which was had at the public schools in Yass.

When were you happiest? 

Getting "The Trials of Justice Murphy" published.

What is your favourite piece of music? 

Bob Dylan's "Knocking on Heaven's Door". 

Why did you write The Trials of Justice Murphy? 

The late Paul Flannery QC was my father-in-law. His involvement as a witness in the first trial created my interest. No such book had been written.

Do you think Lionel "did it" and if so why did he do it?  

I'd prefer readers decide for themselves whether he did it, but I will say that he liked to help people.

What is in your refrigerator? 

Lamb chops from Yass.

What makes you frightened? 

Politicians who listen to shock jocks.

Who would you most like to be with in a lift that has broken down? 

Obama. 

In your research about the Murphy trials what did you discover that was new to you? 

Much, but of great interest to me was that Malcolm Turnbull had once been such a lefty, going in hard for Murphy when writing for The Bulletin, receiving great praise for his work from Bill Hayden and the late Jim Cairns.  

What is the work of which you are most proud? 

"The Trials of Justice Murphy."

Do you miss being a judge?

Yes, which is why I still do some work as an acting judge.

What was the most interesting case you tried? 

As a barrister, a trade practices case about a man who claimed he had discovered the landing site of Noah's Ark. As a judge, a three months long disciplinary case about a doctor who made Basil Fawlty look well-mannered and competent.

If you were on death row, what would you request for your last meal?  

Lamb chops from Yass, mashed potatoes, bombe Alaska, shiraz.

If you were a foodstuff, what would you be?

A Granny Smith apple. 

Who do you most admire professionally?

The members of the High Court.

What is your favourite book?

Rohinton Mistry's "A Fine Balance". 

What would you change about Australia?

Abolish state governments.

What would your epitaph say?

He died with a full refrigerator.

What comes into your mind when you shut your eyes and think of the word "law"? 

I wonder what's in my refrigerator. 

[See also speech by David Marr at the launch of The Trials of Justice Murphy.]

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.

*   *   *

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.

*   *   *

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.

*   *   *

Kerr: Uncle Charlie

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”.

*   *   *

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.

*   *   *

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.

*   *   *

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.”

*   *   *

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”.

*   *   *

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!).” 

From @JustinianNews for Guardian Australia 

The rule of law is a fine thing and we should be grateful to have it when so many demagogues are on the loose ... Highs and lows of the judicial year ... Remembering Lionel Murphy, Tim Carmody and others ... Awe inspiring dirty linen ... Wig chaos in Victoria ... "Butt" squeezer Clarence Thomas at it again  

JUDGES are the unsung heroes of our governance. They slave to prepare reasons designed to keep citizens from each others throats, to keep the peace, and to be bullet proof against the slings and arrows of other judges higher-up the food chain. Somehow, justice and the rule of law ticks-over, even if unevenly. 

Inevitably the judicial finery does mask an amount of dirty linen, but nothing on the scale of last year's Tim Carmody affair in Queensland. Actually, the affair was reprised in a book of the same name sub-titled, "Australia's greatest judicial crisis". 

It later emerged that the former chief justice of Queensland was entitled to recover the legal costs of getting his lawyers to vet the book, plus his bills for the Right to Information case over what in Brisbane legal circles is known as the "fat fuck" tape.  

A spokesperson for the Queensland attorney general said:

"In general terms the Judicial Officers Indemnity Guideline provides for the state to cover judicial officers' legal costs incurred in civil proceedings, investigations or inquiries arising from the performance of their public duties." 

There was also the publication, in time for the Christmas sales, of former judge Stephan Walmsley's learned book, The Trials of Justice Murphy. The work was launched by journalist David Marr, who told a gobsmacked gathering that the former High Court judge was a "crook": 

"Stephen, congratulations. In the thirty years since these unhappy trials, we've made up our minds about Lionel. He was a crook. And the great truth your book points to in the most subtle way is that juries acquit, but history doesn't."  

However, it is to overseas that we should look for some really awe-inspiring dirty linen. 

Former Arkansas district court judge Joseph Boeckmann was indicted on federal fraud and bribery charges for allegedly granting lighter sentences to young male defendants in traffic and small criminal cases.  

According to the indictment, the judge dropped charges against nine defendants, whose ages range from 16 and 22, if they sent him nude photographs of themselves.  

It's alleged Boeckmann told defendants they could perform "community service". They were asked to call his personal phone number and arrange the terms. 

Texas country judge Joel Baker, who investigators say sent hundreds of sexually-charged Facebook messages to a woman, smartly resigned before any adverse findings were made against him.  

In Nigeria seven judges alleged to be involved in a bribery scandal were arrested. They included members of the Supreme Court, Federal High Court and Court of Appeal.  

It's claimed they gave favourable rulings in exchange for cash, corruptly secured government appointments, and assigned "lucrative" cases to other judges on the take. 

A raid on the "palatial home" of one of arrested judges revealed a fleet of fifteen exotic and expensive cars, including a Rolls Royce - but fortunately no whiff of sexual impropriety. 

*   *   *

In Victoria, comparatively trifling matters, such as barristers' wigs, excited attention. Chief Justice Marilyn Warren had issued an edict saying that judges should not wear wigs in civil cases. Apparently, this meant that barristers should similarly be unwigged. 

In court Justice Kevin Bell birched members of the bar who didn't get the message: 

"You are not showing, and neither are your colleagues, showing the respect that I expect of the Chief Justice from you and I want to record my profound disappointment that one, two, three, four, five members of this bar table have wigs on, though I applaud the strength of character of your junior who does not." 

Justice Bell added that he also felt "disrespected". 

A later judicial missive clarified the situation that a judge without a wig means that counsel must be wigless. 

Contrasting such clarity, the wig protocol of Victorian County Court judges requires advocates to at all times carry a handy ready-reckoner. 

*   *   *

In Canada a committee of the Judicial Council recommended that federal judge Robin Camp be removed from the bench. During a rape trial the judge asked the victim:

"Why couldn't you just keep your knees together? ... Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?"  

Sensitively, he added that young women, "want to have sex, particularly if they're drunk ... some sex and pain go together". To show he had a real grasp of the issues during the trial he referred to the victim as "the accused". 

He told the disciplinary committee that his knowledge of Canadian criminal law had been "non-existent". 

*   *   *

Sadly, fresh allegations arose against US Supreme Court judge Clarence Thomas. During his senate confirmation hearings in 1991 Anita Hill alleged that Thomas sexually harassed her while working as his assistant at the Department of Education and the Equal Employment Opportunity Commission. 

Last year Moira Smith, 41, posted on Facebook that Thomas had repeatedly squeezed her "butt" and pulled her towards him at a dinner party when she was 24. She is now general counsel for Enstar Natural Gas Co in Alaska.  

Thomas said the allegation is, "preposterous ... it never happened". 

*   *   *

Back home, Adelaide barrister Claire O'Connor SC complained of octopus type behaviour from a male colleague. She posted on Facebook her concerns about the old guard's control of the South Australian profession, lack of gender equality and that she had been the "victim of serious infringements, once by someone who now sits on our District Court". 

The Advertiser picked up the story which didn't impress the local legal satraps who said: 

"We are concerned by the possible negative suggestions which a reader might draw from the post about individuals and key institutions within the administration of justice." 

*   *   *

Fortunately, the New South Wales parliament passed the Courts Legislation Amendment (Disrespectful Behaviour) Bill, which dealt with disrespectful behaviour towards judges, not disrespectful behaviour by judges. 

It provides for up to 14-days porridge for anyone who does something unpleasant, like not standing when a judge enters or leave court. 

Parliament swung into action after Milad bin Ahmad-Shah al-Ahmadzai, charged with car theft and attempted murder, refused to stand for Judge Gregory Farmer, claiming he's not subject to any higher order other than Islam.  

Members of parliament weighed in with the usual fertile contributions. Craig Kelly, Liberal MHR for Hughes, said:  

"Failure to stand is not only contempt of the court, it's showing contempt for our constitution, contempt for our democracy and contempt for the rule of law."  

Justice Michael Adams on the NSW Supreme Court was tickled with a feather by the appeal judges after they thought he interrupted counsel too frequently during a trial involving a dispute between mortgage lending company and two of its former managers.  

Some of the judge's interventions were "openly sarcastic or dismissive, or at least displaying scepticism and incredulity".

The overall impression was that Adams had "descended into the arena and adopted the mantle of advocate", which meant the proceeding had been, in effect, an inquisitorial hearing and procedurally unfair. Go back, start again. 

*   *   *

As if rising sea waters were not concern enough in Tuvalu, the locals were out on the street protesting a decision of their chief justice, who is also the Australian barrister Charles Sweeney QC. 

Sweeney CJ found that former prime minister Apisai Ielemia was ineligible to sit an a member of parliament because he was in breach of constitutional requirements. This enraged the politician's supporters who took to the streets demanding the CJ "go home". 

Will we see Rod Culleton's supporters out with placards and petitions if Justices Kiefel, Bell, Gageler, Keane and Nettle remove him from the senate? 

May 23 to May 29 ... Indigenous community leaders resolve to be heard in parliament ... One Nation staffer arrested for assault charges ... Dutton glad to see Yasmin Abdel-Magied booted off the small screen ... DIBP processes applications sluggishly as it urges "fake refugees" to hurry up or be deported ... Week@TheKnees with Sohini Mehta 

More than 250 leaders from Aboriginal and Torres Strait Islander communities across Australia gathered this week at Mutitjulu near Uluru for the national convention on constitutional recognition. 

On Friday (May 26), Professor Megan Davis delivered a powerful statement on behalf of the group asserting that Aboriginal and Torres Strait Islander peoples' sovereignty had never been ceded or extinguished.

Given structural problems such as high rates of incarceration, youth detention and child removal, the statement rejected 'symbolic' recognition in favour of a marakatta, a Yolgnu word for treaty.

"In 1967 we were counted," the statement read. "In 2017 we seek to be heard."

The proposed treaty commission is a significant departure from symbolic forms of constitutional recognition that have received bipartisan political support, as well as federal funding: the organisation Recognise has received millions of dollars in funding over the past five years to gather support for the "recognise" movement.

The commission would not only work towards a treaty, but also engage in a public truth-telling process "the same way they have done in other countries in the world," Davis said. 

The delegates' reform agenda prioritises a parliamentary voice for Indigenous peoples. Cape York leader Noel Pearson and Cape York Institute research fellow Shireen Morris argued in the Australian Law Journal this month that this was "the only proposal for substantive and practical constitutional recognition which is both legally sound as well as potentially politically viable". 

They argued a constitutional protection against racial discrimination, though one of the most popular proposals at the Uluru convention, is not politically viable. 

*   *   *

Black: arriving at the Brisbane watch-houseSenior One Nation adviser Sean Black was arrested in Brisbane on Wednesday (May 24) and charged with three counts of common assault and three counts of assault occasioning bodily harm.

Black has been under investigation since a complaint was lodged last August. It appears he was arrested after failing to show-up to a scheduled interview on Wednesday morning.

A Labor figure in the 1990s tasked with puncturing support for Pauline Hanson's party, Black served on Logan City Council for four years and now works for Queensland One Nation Senator Malcolm Roberts. 

In February, Roberts defended Black, saying:

"While it's terrible that Pauline and I are subjected to lies and smears to try and discredit us politically, it's totally unacceptable that when they can't find dirt on us the media go after our staff". 

Black has previously been tipped for state leader if the Queensland election gives One Nation a greater parliamentary presence. 

*   *   *

In a belligerent crackdown on so-called "fake refugees" backed by federal Labor, Peter Dutton said Australia isn't "going to be taken for a ride by the thousands of people who are refusing to provide details about their protection claims."

Asylum seekers that don't apply for refugee status by October will be deported as the government seeks to clear the "legacy caseload" of the 30,500 people who arrived in Australia by boat without a visa between August 13, 2012 and January 1, 2014. 

According to departmental figures extracted at a senate estimates committee hearing last week, 7,194 of those 30,500 people had not lodged their paperwork as of 14 May – a week before the deadline announcement. 

Greens senator Nick McKim offered an uncontroversial figure: between 3,000 and 4,000 people were on waiting lists for legal help to fill out the 43-page application form. 

The departmental officials sheepishly reported that the average processing time for lodged applications was between 261 and 312 days, and that the time frame had "trended up" in the past two months.

McKim responded to this information with suitable indignation: 

"At the same time as the government ... has made a decision to impose ... an unreasonably tight deadline for lodging the application, the length of time that it is taking the department to assess these applications is getting longer." 

*   *   *

Abetz: coal firedHours before a Senate estimates grilling by Senator Eric Abetz, the ABC axed the Australia Wide program hosted by Yasmin Abdel-Magied a month after she posted a seven word Facebook status on Anzac Day criticising Australia's involvement in wars abroad. 

Abetz instead spent his estimates time asking why the ABC doesn't run any positive stories about coal.

"One down, many to go," Immigration Minister Peter Dutton - a self-professed free speech warrior – told 2GB radio's Ray Hadley during their regular Thursday morning catch-up, complaining of "a cultural problem at the ABC". 

On Tuesday (May 23), the ABC was targeted by online Quadrant editor Roger Franklin, who wrote: "Had there been a shred of justice, that [Manchester] blast would have detonated in an Ultimo TV studio."

Editor-in-chief Keith Windschuttle has since issued an apology, while one of the magazine's board members, Nick Cater, said the piece was a "despicable thing to write".

In his heyday, Tom Hughes QC had a flourishing defamation practice ... Big publishers and broadcasters ... Celebrities and sportsmen ... Trips to the Privy Council ... All attended by Hughes' trademark flourishes, piercing glares and withering cross-examination ... Ian Hancock in his biography of the great brief delves into Hughes' personal diary for some up close comments on cases, clients, judges and other barristers ... Defamatorium 

Hughes: "high, wide and handsome"

Gorton v ABC; Punch v Fairfax, Lloyd v David Syme, Austin v Daily Mirror, Seidler v Fairfax, Makim v Nationwide News, Carson v Fairfax, Ettingshausen, Rivkin, Mercedes Corby ... what a great sprawling life Tom Hughes QC had at the defamation bar. 

In Ian Hancock's biography of Hughes, A Cab on the Rank, it is the defamation cases that take up the bulk of the barrister's courtroom history. 

In the process Hancock gives us revealing extracts from Hughes' personal diary and his fee book - insightful asides on judges, barristers and clients, such as:  

"I do not enjoy working for Fairfax [emphasis in the original]. What a difference between the close rapport I have with Packer, when I am working for him, and the distanced relationship with the Fairfax people - they are, as I described them in my Punch address last week, a stiff-necked mob." 

The happy relationship with the Packer organisation ultimately soured when Hughes' retainer was not renewed. 

He wrote that while engaged by Fairfax in a case brought by Labor MP Tom Uren settlement became urgent when Uren entered the courtroom and the jury panel waved and smiled at him. At that point there was nowhere else for the defendant to go but cough-up. 

The Sydney Morning Herald in an editorial of April 3, 1975, just before the fall of Saigon, had accused Uren of being a racist and a traitor. 

Hughes acted for plenty of politicians and one of the most newsworthy after he left parliament was in 1973, taking up the cudgels for his friend and former prime minister, John Gorton, in an ACT case against the ABC and Max Walsh. 

Walsh was interviewed by Richard Carleton on TDT in relation to a developing crisis for the Gorton government, where he effectively accused the PM of dishonesty and falsehood. 

It was a big case. Murray Gleeson appeared with Hughes for the plaintiff, Jack Smyth QC for Walsh and J.T. Hyatt QC for the ABC. 

In a hearing that went for six days Hughes argued for compensatory and aggravated damages, but the outcome was a disappointment. Justice Russell Fox found only one of the imputations arose and there was "some slur" on the plaintiff's character. He awarded the former PM just $7,500 and half his costs. 

Hughes also took a case for the NSW premier, Sir Robin Askin, whom the union official Jack Mundey sued for defamation. Mundey claimed that Askin had described him as "vermin" at a Liberal Party rally and that the unionist favoured violence. There was this exchange in cross-examination:

Hughes: When you say you abhor violence with guns and pick handles ...

Mundey:  ... including cricket bats.

Hughes as a minister in the Gorton government had threatened anti-Vietnam war demonstrators outside his home in Bellevue Hill with a cricket bat. 

Jack Mundey when the BLF and the greenbans were in their prime

Mundey also told Hughes that Vietnam was a place "where you sent conscripts to die". 

The jury found for the defendant and Mundey's appeal was dismissed by Moffitt, Reynolds and Samuels. 

There was also the case in which Hughes acted for the NSW National Country Party leader Leon Punch who sued the SMH and AAP in 1979 over what these days seems like a complaint that politicians regularly endure. 

It was reported that dairy farmers who were excluded from the milk quota had called for Punch's resignation as leader of the party.

The story was a tip-off came from Opposition leader Neville Wran to reporter Gordon Hunter. There was to be a big meeting of dairy farmers at Bega at which it was expected that there would be a call for Punch to resign as party leader.

Hunter wrote the story in advance of the meeting and as a consequence of internal mishaps at the paper it was not "held" pending verification. Consequently, the published report was full of mistakes. 

The case commenced in the Federal Court in Canberra and Hughes opened "high, wide and handsome, which pleased the client and those with me". 

Alec Shand appeared for Fairfax before Justice Douglas McGregor, of whom Hughes wrote: 

"Really Doug is a nice well-intentioned but blinkered and inept lawyer. As a judge he is as disappointing as he was at the bar. But so well-intentioned."  

David Levine described a Hughes-Shand contest as, "gladiatorial advocacy at its best: you know, blood on the wall and one would be down and fight his way up, and the other would do down and fight his way back". 

In his closing address Hughes said Fairfax and AAP had adopted "the mask of the cynic ... the cynic with the sneering smile ... an ocker attitude that politicians were there to be knocked... it does not matter what you say about them". 

It had emerged during the case that there had been a motion at the Bega meeting, which was defeated, calling for Punch's resignation as leader of the National Country Party. 

Hughes also noted that Shand had cross-examined Punch "not very well". 

McGregor awarded Punch a total of $27,250 ($18,860 against Fairfax and $8,660 against AAP), accepting Hughes argument that politicians are entitled to equal treatment under defamation law. 

The Full Court dismissed an appeal, making the curious observation that it was defamatory to write that a political leader had lost the confidence of a significant number in his party who called for his resignation. 

Barwick: very chatty

One other interesting judicial aside recorded by Hughes in his diary was from a lunch at the Australian Club on August 24, 1979 where Chief Justice Garfield Barwick was "his usual ebullient self & very chatty" and declared that any statement concerning a person and injurious in the sense that it was likely to cause loss, should be actionable, even though it did not reflect on the person's reputation. 

Privy Council

There were two famous defamation cases that Hughes took to the Privy Council: Clive Lloyd v The Age and Reg Austin v The Daily Mirror. 

The Age, on January 21, 1982, published a piece by an English-born journalist David Thorne about Packer's World Series Cricket. It suggested that the West Indies cricket team, captained by Lloyd, had taken a dive in an earlier match in order to avoid playing Pakistan in the finals, which would have meant crowd numbers, TV ratings, gate revenues and sponsorship would all have been well down.

The better option was to spread the series out to a full five games to maximise the ratings and the revenue. 

Hughes who was on a $50,000 a year retainer with Packer's interests took the case for the plaintiff with Michael McHugh QC for the newspaper. 

At the trial Hughes was typically high-blown. The allegations were "filthy ... atrocious". It was a "disgraceful piece of journalism". Lloyd had been defamed "in a horrible and horribly serious fashion". It would be difficult "to imagine a more serious libel upon an international cricketer", etc. etc. 

McHugh said the article did not name Lloyd, did not defame him and was an honest opinion. The jury awarded damages of $100,000. An unnamed Victorian QC congratulated Hughes: "That will set the smartypants [sic] of Spencer Street back on their heels for a while." 

It went to the NSW Court of Appeal, with the majority (Glass and Samuels) finding that the trial judge Colin Begg fell into error when instructing the jury. The article was not defamatory, it was an expression of opinion relating to a matter of public interest and was based on material that was substantially true. The original verdict was set aside and costs awarded against Lloyd. 

However, there was no appeal to the Privy Council as of right because Allen Allen & Hemsley for the plaintiff had failed to make the necessary deposits as security for the cost of preparing appeal papers. 

Hughes wrote in his diary: 

"[It is] a paradigm case of solicitors who, getting too big for their boots, fail to do the work that makes big litigation go ... Everyone wants to be a chief & disdains the necessary work of the Indian." 

Hughes asked Bob Alexander QC of the English bar to petition the Privy Council for special leave to appeal. Alexander wrote to Hughes in July 1985 to say he had a good response from the board and that the new Law Lord, Huw Griffiths, who was sitting on the case, said privately that the Court of Appeal's decision was all wrong. 

"Please do not tell anyone this," added Alexander. 

Clive Lloyd with the West Indies cricket team. Not enough Indians at Allens

With a date set for the hearing in London Alexander invited Hughes to a buffet supper at Gray's Inn and a function at the House of Lords to mark the opening of the legal year. 

At this point Ian McPhee and Ruth McColl were for The Age. Hughes felt that the privy councillors were with him on imputations, but on comment "the going was a little sticky". Because of an interrogatory answer that the defendant did not intend to convey the imputations there was a general feeling that a new trial would be inappropriate. 

Hughes wrote: 

"When poor Neil McPhee got to the question of identification, they began to get quite short with him. Diplock said he as wasting time; and even the urbane Hugh Griffiths said the argument was an affront to common sense." 

On whether the author intended to convey the imputations Hughes said that McPhee had "really lost the place and lapsed into confusion". 

It was over quickly with a decision in Lloyd's favour. 

During the hearing Griffiths sent a note to Hughes saying how delightful it was to "listen to you". He suggested dinner at the Garrick Club after he returned from a trip to Cyprus. All very chummy. 

There was a celebration of three bottles of Moet et Chandon with Bob Alexander and his wife Marie and John Sackar (the junior). 

In Austin v Daily Mirror, sports journalist Ron Casey wrote that as a result of Reg Austin's conditioning of the Manly rugby league team it had "gone from being a great side to being a tarred band of former champions". Casey advised the club to sack this "fitness fanatic".

The jury rejected all the defences except qualified privilege and awarded damages of $60,000, subject to Justice Lusher's ruling on QP.

Lusher found that qualified privilege had been made out and that the article consisted mainly of comment based on facts that were substantially true, which seemed to contradict the jury which found that the facts as stated were substantially false. 

An appeal was dismissed with costs with a finding that publication of the defamatory matter was reasonable in the circumstances.  

Austin would not surrender and took the case to 9 Downing Street (home of the Privy Council), with Hughes for the appellant and Henric Nicholas for the newspaper. 

There was much discussion about whether an "interest" by readers should have regard to the nature and quality of the information. Hughes stressed there was a dividing line between giving information and making charges of misconduct. 

He noted in his diary that he had "most agreeable dinner "with Griffiths, who told him he was writing the judgment. It was probably the dinner that had been booked at the Garrick Club while the Lloyd case was underway. 

Huw Griffiths: Hughes' urbane friend on the Privy Council

The Privy Council restored the $60,000 to Austin, concluding that the journalism had been "slipshod", including misquotations, misrepresentations and untruths. This did not entitle the defence to "the shield of qualified privilege". 

Hughes noted:

"In one case the plaintiff was supported by the financial might of the Consolidated Press organisation. In the other Austin was a litigant with no financial backing, who decided as a matter of principle to fight the case out to the ultimate tribunal and his courage was properly rewarded." 

There was no regret on the part of newspaper proprietors when Australian appeals to the Privy Council were abolished. 

Busy cab with expensive flag-fall  

There were an enormous number of other defamation cases in which Hughes starred: 

Seidler v Fairfax: This concerned the Harry Seidler Retirement Park cartoon by Patrick Cook in The National Times. A jury found there was a defamatory imputation that Seidler lacked aesthetic sensibilities, but ordinary readers would have seen it as an expression of opinion. 

Patrick Cook's Harry Seidler Retirement Park

On appeal Hughes argued that to say the plaintiff "lacked aesthetic sensibilities" could not be a comment and, if it was, then the facts on which it was based were not sufficiently stated. Hope, Glass and Mahoney JJA unanimously rejected the appeal. 

Twenty-one years later Hughes told an audience at the Art Gallery of NSW that Patrick Cook has sworn in an interrogatory that he did not hold the opinion represented by the comment. However, at the trial he changed his mind and said he did hold that opinion. 

Derryn Hinch and Channel Seven: Hughes acted for a Western Australian dentist who sued over a defamatory broadcast by Hinch, securing a verdict of $100,000 and portraying the broadcaster, now senator, as arrogant and reckless. 

Jane Makim v Nationwide News: Hughes secured a verdict of $300,000 for the sister of the Duchess of York arising from a Sunday Telegraph article that claimed she had conducted an adulterous relationship with an Argentinian polo player. Hughes asked the jury:  

"Can you imagine anything more shocking than to say that falsely about a decent woman?" 

Carson v Fairfax: One of the great defamation battles of recent memory which had the effect of demonstrating that jury awards of damages were out of control. 

Nicholas Carson, a partner at Blake Dawson Waldron, who had married John Gorton's secretary, Ainsley Gotto, pleaded two imputations arising from articles by John Slee in The Sydney Morning Herald concerning the long-running Rajski case. Carson claimed that the articles imputed he had misconducted himself as a solicitor in acting for clients, including Allen Allen & Hemsley, whom Dr Rajski was suing. 

Hughes appeared with Guy Reynolds for Carson and Neil McPhee was for Fairfax. Hughes described one of the articles as "a piece of greasy insinuation" and Slee a "peddler of deliberate falsity". 

McPhee: "completely attuned to the taste of the wild men of Jones St"

The jury returned a verdict of $200,000 for the first article and $400,000 for the second, after just 47 minutes deliberation. It was the highest jury libel verdict in Australia. 

The Court of Appeal set it aside (Kirby and Priestley, Mahoney in the minority) with Kirby saying the damages "smacked of the punitive", comparing the quantum with what was available in personal injury cases. 

Carson appealed to the High Court, with David Jackson QC representing Fairfax, who said that Hughes had invited the jury to punish Fairfax. Hughes replied: 

"Even today, the namby-pamby school of advocacy ought not to be encouraged."

The High Court supported the Court of Appeal order for a retrial, which commenced on April 29, 1994 before Levine J and a jury of one man (a waiter) and three women (a librarian, a shop assistant and a courier driver). 

On this occasion Slee gave evidence where he managed to say in relation to one of the imputations, over a period of persistent questioning, that it was "close to the truth ... substantially true .. [and] false". 

Levine did not direct the jury against making excessive awards, and it brought in damages for Carson of $1.3 million.  

It was a clearly a "vulnerable verdict" and Carson later accepted settlement of $810,000, ($500,000 for damages and $310,000 in costs), plus an apology. 

Ettingshausen v ACP: The shadowy penis case. In April 1991 HQ magazine published a photo of Andrew Ettingshausen, the well known rugby league player, along with two team mates, in a shower, accompanying an article headlined Hunks. 

Justice Hunt said the shape between Ettingshausen's legs was "certainly capable of being interpreted as his penis". 

Ettingshausen had not given permission for the photo to be published and an apology did not settle the matter as it was published on a page advertising condoms. In the NSW Supreme Court Hughes and Reynolds represented the footballer and Ian Callinan the publisher. 

A visiting English judge Sir Michael Davies, said that Ettingshausen was "an ideal plaintiff" - an outstanding sportsman, married with a child, university educated, articulate and with "no skeletons in the cupboard". 

On February 10, 1993, after Hunt J had warned against awarding "staggering sums" because they did not survive on appeal, the jury came in with verdict of $350,000. Interest brought the amount to $363,416.66. 

Ettingshausen: an ideal plaintiff

After a successful appeal by ACP Ettingshausen received a reduced amount of $100,000. It was noted that the maximum payment for a severed penis and severed testicles would be $45,000.  

There were plenty of other libel jousts, including Rene Rivkin v Fairfax and a bitterly fought series of appeals over the jury's rejection of the imputations; and Mercedes Corby v Channel Seven, a loss for the TV network, followed shortly after with Hughes losing his retainer with Seven.  

Interestingly, Hughes took the Ettingshausen case against Packer after the new CEO at Consolidated Press Holdings, Al (Chainsaw) Dunlap, did not renew the retainer he had held with the company since 1972. He wrote to Dunlap:

"I have lost count of the number of times I have been able to refuse briefs, on the basis of my retainer, to appear against the companies in the CPH group. If I cannot refuse in the future so be it."  

He took the same attitude in 1984 when Fairfax briefed McPhee in a case brought by the chief judge of the Family Court, Elizabeth Evatt. She sued over a Sun-Herald article published in July 1984, claiming the chief judge controlled the destruction of fathers' and children' lives, "with the same cold-blooded efficiency that Ilsa Kuhn and her like used in disposing of Jews in Auschwitz and Belsen". 

Hughes noted that McPhee's cross-examination of Evatt for nearly seven hours was "rugged and full of sneers". McPhee suggested the plaintiff had over-reacted to the article, at which point she wept. 

Hughes wrote that McPhee's manner of conducting the case was "completely attuned to the taste of the wild men of Jones St [Fairfax's headquarters]. I could never conduct a defence to this kind of case in the same way".  

He had earlier warned Graham Bates, Fairfax's solicitor at Stephen Jaques & Stephen, that if the company was going to brief others in preference to him, he would be free to act for clients against the newspaper publisher. 

When he learned that McPhee had the brief to defend the Evatt case, Hughes rang Bates and said: "It has happened." Bates replied: "Oh God." 

See also: The life, loves, triumps and disappointments of Tom Hughes 

Talk about disruption ... Council of Law Reporting sends divorce papers to LexisNexis and Thomson Reuters for publication in Australia, Canada, NZ and USA ... The old law publishing world coming apart ... End of the oligopoly in sight 

Old world law publishing getting all shook-up

THE Australian Law Librarians Conference in Melbourne last week, turned out to be more intriguing than anticipated.  

In attendance was Kevin Laws, the CEO of the Incorporated Council of Law Reporting for England and Wales.  

Kevin announced that his outfit was in the process of divorce proceedings and that for the former colonies LexisNexis and Thomson Reuters would no longer operate the online services of The Law Reports, the official English series for the High Court, the Court of Appeal and the Supreme Court.  

He said that the process of "disaggregation" had commenced and that the large, traditional law publishers from January 1, 2017 will not provide online services for subscribers in Australia, Canada, NZ and USA.  

Thereafter these services will be supplied directly by the council at ICLR Online.    

This will affect the appeal cases, Chancery, Family and Queen's Bench divisions, also the Weekly Law Reports, the Industrial Case Reports, the Business Law Reports and the Public and Third Sector Law Reports.  

See announcement here   

For now, LexisNexis and Thomson Reuters will continue to be the publishers for the UK and the Republic of Ireland, but ICLR is seeing how the divorce works out in Australia, Canada, etc. before taking the next step of bringing those jurisdiction in-house.  

A number of big subscribers have already bought annual subscriptions to these service from LexisNexis and Thomson Reuters, so there's likely to be a scramble for refunds.  

ICLR says that it is a registered charity and operates on a non-profit basis:   

"Our only concern is to ensure that we provide you with the most accurate account of English common law and to generate only sufficient income to cover our operating costs. Our subscription rates reflect this."  

Users can get a seven day free trial and a quote here. 

ICLR doesn't quite explain its reasons for dumping LexisNexis and Thomson Reuters online, only saying:  

"Licensing our law reports to commercial publishers was an important development as we moved from print to online. However, following the celebration last year of ICLR's 150th anniversary, we must now prepare for the future."  

That means they'll celebrate by being "in control of the content that we author and publish". At the moment, the hard copy versions are still going strong in the motherland and the colonies. 

This came close on the heels of the launch celebrations of the BarNet Jade subsidiary, Little William Bourke, taking over from LexisNexis' publication of the Victorian Reports - hard copy and online. There were cocktails, speeches, lemon and coconut cake and enormous merriment at functions in Melbourne and Sydney. 

BatNet Jade's Ben Williams, Sue Yap and Michael Green after huge helpings of cake

LexisNexis, and its predecessor companies, had published the Victorian Reports for over 100 years. Little William Bourke has a five year control with the Victorian Council of Law Reporting and as well as a subscription service has implemented a pay-per-view system.   

Word out of last week's librarians' knees-up is that the law reporting councils are getting fed-up with the manner in which the mainstream publishers are managing the business. They want more accountability on how they are taking users into the "journey of facilitating access to justice".  

Victoria was the first to bolt out of the stable, now the Brits and all the other law reporting councils in Australia are looking at the new model. 

I'll put you through to Gem of the Year in customer service

The librarians had their cocktail reception at the Old Melbourne Gaol and, amid death-like stares from some of the competitors, Ian Ira from Jade won the customer service award, based on popular votes. He followed in the wake of the 2014 customer service honcho, Sue Yap, also from Jade.  

The disruption is too much.  

On The Couch with Professor David Lemmings ... Exploring the life and times of the English bar in the eighteenth century ... He has also studied the early role of the press in reporting criminal trials and the part it played in forming public opinion about justice and the courts 

The eyes have it: Blackstone at home with Professor Lemmings

David Lemmings is Professor of History at the University of Adelaide and leader of the "Change" program in the Australian Research Council Centre for the History of Emotions. 

His work has focussed on the history of the legal profession in late seventeenth and eighteenth century England and more broadly on law and society in England and its former colonies. 

He has published extensively on the socio-cultural history of law and the legal professions in Britain of the 1700s.

His latest books are Law and Government in England during the Long Eighteenth Century: From Consent to Command (Palgrave Macmillan); (ed.) Crime, Courtrooms and the Public Sphere in Britain, 1700-1850 (Ashgate, 2012); (ed., with Ann Brooks) Emotions and Social Change: Historical and Sociological Perspectives (Routledge, 2014); and (ed. with Heather Kerr and Robert Phiddian) Passions, Sympathy and Print Culture: Public Opinion and Emotional Authenticity in Eighteenth-Century Britain (Palgrave-Macmillan, 2015).

He has also just edited Book One of Blackstone’s Commentaries on the Laws of England for Oxford University Press. 

Justinian is also a huge fan of Lemmings' book Professors of the Law, which explored barristers and the English legal culture in the eighteenth century. 

Prof. Lemmings is also speaking at a conference on Emotions in Legal Practices at the University of Sydney, September 26-28. With Dr Amy Milka, from the Uni of Adelaide, he is giving a paper on Mediated Emotions in the Eighteenth Century Criminal Courtroom. 

We've got this great scholar of the intersection of law, history and emotions on the couch ... 

Describe yourself in three words.

Je pense, donc je suis (Descartes), or in three words: cogito ergo sum.

What are you currently reading? 

I read the 'London Review of Books' to keep in touch, but rarely follow-up with the titles themselves.

What's your favourite film? 

I normally see films on planes, and can't remember the titles. 'The Duchess' was excellent.

Who has been the most influential person in your life? 

The late Peter Pryce, my history teacher at school, who taught me more than history. 

When were you happiest? 

On my wedding day.

What is your favourite piece of music?

'Curtain Tune' by Matthew Locke (1622-77)

What can the lawyers of eighteenth-century England teach us about the lawyers of today?

Not much. Modern day lawyers have followed their eighteenth century forbears' lead by maximising their profits and representing the very wealthy. More positively, some eighteenth-century English lawyers campaigned for good causes, such as the amelioration of capital punishment and the freedom of the press.

What is in your refrigerator? 

Lots of fruit and vegetables from the local farmers' market; but not enough champagne.

What makes you frightened? 

Needing to defend my rights in court (given the prohibitive costs, I would have to represent myself). 

Who would you most like to be with in a lift that has broken down?  

Hilary Mantel (author of Wolf Hall), or Thomas Cromwell himself (the subject of Wolf Hall).

Why did you study history?

I have always been fascinated by the living conditions of people in the past, but I suspect I was attracted to British history by the triumphalist slant of much popular history when I was a child. 

Tell us about the intersection of law, history and emotions. 

It's a commonplace that the law is blind and rational. The best lawyers are experts in the art of emotional persuasion, however, and criminal courts are theatres of power. In eighteenth century England barristers began to appear in criminal trials, and the burgeoning newspaper press took a great interest in sensational criminal trials. I'm interested in how these developments changed popular impressions about justice in the courts.

What is the work of which you are most proud? 

Professors of the Law (Oxford, 2000), although it took years of my life!

What are the lessons to be drawn from a study of "the emotions of the public sphere" in eighteenth century England? 

The most obvious lesson is that with the rise of the newspaper press government had to take more notice of public opinion. For example, in mid-century the government employed the novelist and magistrate Henry Fielding to manage opinion and crime and policing in London.

What was the most important opportunity you didn't take? 

I must have repressed it.

If you were on death row, what would you request for your last meal?   

Pasta. 

If you were a foodstuff, what would you be? 

Mushrooms - like me, they are active at night.

Whom do you most admire professionally?

Julian Burnside QC, because he stands up for the weak and defenceless. 

What is your favourite book?

My favourite books are children’s books: "Zog", by Julia Donaldson and "Zagazoo", by Quentin Blake.

What would you change about Australia?

The tribalism over sport - I find it very irritating.

What would your epitaph say? 

Worked hard and was kind to children and pets.

What comes into your mind when you shut your eyes and think of the word "law"?  

Men and women in wigs and gowns: I envy a profession that gets to dress-up and swank around regularly.

The retiring Philip Selth ... Living underground for 19 years ... Long haul boss of the NSW bar bows out to write biographies and history ... Former bureaucrat who knows where a lot of bodies are buried ... He's fidgety but has succumbed to the couch 

Philip Selth: The Carnival is Over (pic by Mark Tedeschi QC)

PHILIP Selth, after 19 years in the job, has retired as executive director of the NSW Bar Association. He came to Phillip St from the Australian National University, where he was pro-vice chancellor in charge of planning and administration. 

He has spent time in the Queensland and Northern Territory public service and from 1981 to 1987 he was an assistant secretary and then a first assistant secretary in the Department of Prime Minister and Cabinet. 

His career in public administration also spanned the New Zealand Ombudsman's Office and the Commonwealth Attorney General's Department. He started on the long and winding road as a graduate clerk at the Department of Customs and Excise. 

He's an enthusiastic historian and his biographies of Eric Miller QC, Kevin Murray (barrister and soldier) and Daniel Joseph Leahy (PNG explorer and gold miner) have appeared in the Australian Dictionary of Biography. His degrees in arts and law are from the ANU. 

For now Selth remains the chief executive officer of the Australian Bar Association. While he's been attending the VicBar-ABA conference we wrestled him onto a couch in the Betty Cuthbert Lounge at the Melbourne Cricket Ground. 

Describe yourself in three words.

Grumpy old workaholic.

What are you currently reading? 

A pile of books on Donald Trump - and for pleasure, the latest Inspector Montalbano mystery.

What's your favourite film?

"Cat Ballou."

Who has been the most influential person in your life? 

My Dad - who gave me a love of history and of writing.  

When were you happiest? 

The day my son was born. 

What is your favourite piece of music? 

The Seekers "The carnival is over" (that dates me). 

Has the Bar Association changed over 19 years and if so in what way? 

The size and geographic dispersion has unfortunately diminished the collegiality of the bar. The opportunities for young barristers to be on their feet in court are few and far between. 

What is in your refrigerator? 

Stuff that has taken on an identity unknown to human kind because I have delayed cleaning it out.

What makes you frightened? 

Donald Trump. 

Who would you most like to be with in a lift that has broken down? 

Lyndon Baines Johnson - preferably alive.

If barristers are so independent, why do they need an association?  

Because administrative and political skills are not mandatorily attached to practising certificates.

What is the work of which you are most proud? 

The introduction of BarCare and of the national ABA conduct rules that became the Legal Profession Uniform Conduct (Barristers) Rules 2015. 

What have been your best and worst moments as CEO of the NSW bar? 

Being made a life member and saying goodbye to my staff. 

What was the most important opportunity you didn't take? 

Finish my PhD.

If you were on death row, what would you request for your last meal? 

A good sirloin steak, mashed potato, garlic, fried onions, peas, mustard and a very expensive Shiraz - assuming the government was paying.

If you were a foodstuff, what would you be? 

A TeeVee snack - because I am no longer able to eat them.

Who do you most admire professionally?

General Ulysses S. Grant. 

What are you going to do now?

Try and finish draft books on PNG WW11 coast-watchers and Japanese war crimes on Ambon. 

What would you change about Australia?

The present toxic nature of federal politics.

What would your epitaph say?

He now need not get up at 5.30am each day to read newspapers that he does not wish to read.

What comes into your mind when you shut your eyes and think of the word "law"? 

The reluctance of some politicians and elements of the media to accept and enhance the rule of law.

May 29 - June 5, 2017 ... Call for independent investigation of ATO deputy commissioner over tax case influence ... Jakarta class action ... Brisbane murder sentences ... Crook NSW politicians back in court ... St Paul's College begging to be forgiven ... Week@TheKnees 

Fairfax Media reported that Michael Crowley, a deputy commissioner of taxation, had been investigated by the ATO's anti-fraud unit over claims he tried to influence a court case against a "high wealth individual".  

The deputy commissioner was cleared, but one officer from the team who claims to have been ordered by to drop the case wants a "proper and independent investigation". 

The approach to Crowley about the case was made by a partner of KPMG. 

Tax Commissioner Chris Jordan told a session of budget estimates that approaches are made to the ATO "everyday" by accounting firms. 

*   *   *  

Alleged tax fraudster Philip Egglishaw, whose activities sparked Operation Wickenby, the long-running ATO investigation, has been arrested in Italy after trying to cross-back to the safety of his home in Switzerland. 

Australian authorities hope to extradite him to face charges of conspiracy to defraud the Commonwealth. 

*   *   *

A $103 million class action brought by 115 alleged child people smugglers is before a Jakarta court. 

The plaintiffs are young Indonesians, aged between 13 and 17, who were held in Australian jails after the Australian Federal Police used a controversial and unreliable method of wrist ex-rays to determine the age of the detained youths. 

Australia has requested the court dismiss the proceedings but will not be represented in the case. 

The plaintiffs are suing the Department of Immigration and Border Protection, the AFP, the Commonwealth DPP and the Attorney General's Department. 

The Indonesian lawyer for the juveniles said that his clients were minors who were put into adult gaols with hardened criminals.   

*   *   *

Applegarth: justice at lastA couple of Brisbane killers were given life in gaol after being found guilty of the deaths in 1974 of Barbara McCulkin and her two daughters, Vicki and Leanne. 

Vincent O'Dempsey, 78, was found guilty of murder, while Garry Dubois was guilty of Barbara's manslaughter and the rape of murder of her two daughters. 

Justice Peter Applegarth told the prisoners: 

"At least three things have ensured justice at last. First, the dedication of police. Second, the testimony of dozens of witnesses. Third, the conscience and courage of some key witnesses at each of your trials. 

You can have no expectation of early parole. If you maintain your silence over where the bodies are buried you could not reasonably expect to ever be granted parole." 

Dubois attempted to talk while he was being sentenced and the judge responded by saying: "You had your chance at trial, now shut up". 

O'Dempsey's trial heard that the motive for killing Mrs McCulkin was that he was concerned she might implicate him over the firebombing of the Whiskey Au Go Go nightclub in 1973, causing the deaths of 15 people. 

Queensland attorney general, Yvette D'Arth, has ordered a new inquest into the nightclub fire.  

*   *   * 

Justice Christine Adamson sentenced Ian Macdonald, 68, former NSW Labor minister and crony of Eddie Obeid, to 10 years in prison for corrupt conduct in public office. He is to serve at least seven years. 

An appeal has already been flagged. 

Macdonald had granted a multi-million coal exploration licence to a company chaired by CFMEU boss John Maitland. 

The deal was clinched at a long dinner at the Catalina restaurant and announced on Christmas Eve 2008. 

Macdonald's own department had recommended against the "invitation-only" selection process for the Doyles Creek mine. 

The arrangement was dressed up as a "training mine" for union members, but once he had secured the licence Mainland sold the rights over the coal deposits and promptly became a multi-millionaire. 

There was no evidence that Macdonald had benefited from the arrangement, with Justice Adamson saying in her three hour sentencing judgment that it was an "arbitrary exercise of power". 

*   *   * 

On Monday (June 5), Eddie Obeid's lawyers were in the NSW Court of Criminal Appeal arguing that their man should not have been found guilty of misconduct in public office as a result of secretly importuning bureaucrats about his cafes and take-away food shops at Circular Quay.  

Guy Reynolds led the submissions for the appellant, saying the jury was misdirected that the former Labor MP owed a "legal duty" to act in the public interest. 

Reynolds said there was no such "duty of law", only a "mere matter of conscience ... a duty of imperfect obligations". 

The other line of argument is that the courts do not have the jurisdiction to hear allegations of MPs' misconduct in public office as this is the "exclusive cognisance" of parliament. 

The five member bench includes chief justice Tom Bathurst. 

*   *   * 

St Paul's: harpoonedThe NSW government has flagged the prospect of legislation to end the self-governing status of colleges at the University of Sydney. 

This follows the latest drama at St Paul's College, in which there was a post on the college's Facebook page comparing women to "harpooned whales" who should be slayed. 

This is just one of a number of denigrating remarks coming from the college. To make matters worse the warden of St Paul's, Ivan Head, responded by saying that college men had to be careful because, "some things may resurface just when you need your best CV to work for you". 

He then added: "But the primary message driving this has to be 'respect for women: now-always'." 

This has not impressed the vice chancellor Michael Spence, or the minister for education Rod Stokes, who wants to know what options the government has in relation to colleges. 

St Paul's under the previous council chairman, Bruce McWilliam, refused to cooperate with Elizabeth Broderick's review of college culture and the treatment of women. 

Following the latest outrage and threats from the government, the college council is on its knees begging to be allowed to participate in the Broderick review, which by now has nearly completed all its consultations.  

*   *   * 

Pauline's plane: a gift or a purchase?James Ashby, the One Nation Svengali, has asked lawyers to seek a court order to prevent the ABC from broadcasting covert recordings of incriminating conversations between the party's senior brass. 

Much of the embarrassment concerns the light plane that ferried Pauline Hanson around at the last federal election and which was piloted by Ashby. 

The suggestion from the party's former national treasurer, Ian Nelson, is that the plane was purchased with money from a property developer, Bill McNee, and his gift has not been declared. 

In any event, the provenance of the aircraft is mired in conflicting explanations. Hanson said it had been lent to the party, while Ashby insists he bought the plane for recreation and his printing business - a business that is at the heart of other allegations about gouging One Nation candidates for printing costs. 

June 13 to June 19 ... Manus Island settlement does not impute liability ... Pentecostal lawyer flagged as Triggs replacement ... Trio of ministers unapologetic as Victorian judges resurrect 18^th century contempt of court offence ... Legal Aid chairman highlights nexus between property boom and elder abuse ... Week@TheKnees with Sohini Mehta 

ON Wednesday (June 14) morning, Justice Michael McDonald of the Vic Supremes confirmed in proceedings lasting just five minutes that the Australian government and its contractors G4S and Transfield, now Broadspectrum, had agreed to pay compensation of $70m plus costs to 1,905 refugees and asylum seekers detained on Manus Island.

On average, each plaintiff will receive about $35,000. However, compensation will be determined on an individual basis, with the plaintiffs' firm Slater & Gordon having applied to administer the redress scheme. 

Amnesty International's Pacific researcher Kate Schuetze, who has visited Manus, said "the gross figure might seem a lot to the Australian public, but it's not much on an individual level. Nor does the compensation end the injustice".

The future of 900 men remaining on Manus Island remains uncertain with the detention centre slated to close in October this year.

For the government, the settlement has the obvious advantage of forgoing the international live streaming of an enormous six-month trial and the rigorous testing in a court of law of allegations of murder, systemic sexual and physical abuse, inadequate medical treatment and false imprisonment. 

Though the Greens claimed that the settlement is "an admission of guilt", Immigration Minister Peter Dutton has clarified that it does not constitute an admission of liability, asserting that the Commonwealth "strongly refutes and denies the claims made in these proceedings". 

*   *   *

The Australian wants Pentecostal lawyer Augusto Zimmermann to replace Gillian Triggs as the Human Rights Commission's president.

Following years of sustained attacks on the independence of the commission and its president, attorney general George Brandis is having a hard time finding a candidate who is prepared to front politicians and the media at the slightest provocation and inherit the demoralised and understaffed commission.

Zimmermann, a senior lecturer in law at WA's Murdoch University, confirmed to The Saturday Paper that he had applied for the position. 

National treasure Pastor Margaret Court and her husband, Barry, wrote to former PM John Howard endorsing Zimmermann's application, stating he was a "good Christian". This backing comes with clout - Barry Court is a former president of the WA Liberal Party.

Fragments of Zimmermann's beliefs can be gleaned from the online pieces he penned for Christian Ministries Internal. He argued in a piece littered with biblical references that evolution undermines the rule of law and attributed the rise of the Nazis in Germany to Darwin's theory:

"[N]o legal protection can be reasonably afforded against tyranny, if the supremacy of God's higher laws is not made to prevail."

In another piece, he rejected Islam alongside Marxism and secularism. Across the world, he claimed, "the most rights-based and democratic nations are the majority-Protestant ones".

Here's some video of Zimmo in action ... 

*   *   *

Three Turnbull government ministers - all qualified lawyers - got the solicitor general to front the Victorian Supreme Court on Friday (June 16) after criticising the Court of Appeal for handing down "soft" sentences for people convicted of terror-related offences.

In a move which inflamed the justices, Health Minister Greg Hunt, Human Services Minister Alan Tudge and Assistant Treasurer Michael Sukkar did not apologise and said they had intended to contribute to an "important public debate". 

The court has reserved its decision to refer the ministers for "scandalising the courts" - a contempt offence dating to the 18th century. The offence lacks a formal defence of justification but may not be available if a defendant criticises the judiciary "in good faith".

The offence of scandalising the court, looked upon as a long-standing restriction on free speech, was abolished in the UK in 2013.

*   *   *

ALRC wants greater protections for the elderlyTo coincide with World Elder Abuse Awareness Day (15 June), AG George Brandis released a report by the Australian Law Reform Commission containing 43 recommendations to safeguard the nation's elderly from abuse.  

The proposed changes include a serious incident response scheme for aged care homes, more stringent background checks of aged care workers and a national online register of documents available to doctors, financial planners and other professionals from which the validity of a power of attorney can be easily ascertained. 

NSW Law Society president, Pauline Wright, pointed to the vital role of banks in the national strategy proposed by the ALRC and suggested the banking industry incorporate a commitment to preventing financial elder abuse in their code of practice.

National Legal Aid chairman Graham Hill, while lauding the proposals in the ALRC report, urged an investigation into the nexus between surging house prices and the abuse of elderly people who had been pressured to guarantee a loan or supply a deposit by adult children struggling to enter the property market on their own. 

The report prioritised the dignity and autonomy of elderly people: 

"Older people, like most adults, prize their freedom and independence, and do not wish to be treated like children or sheltered from all risk." 

The boy from the wild west of Sydney climbs to the top limbs of the barristers' tree ... Arthur Moses on the couch ... President of the NSW bar and treasurer of the Law Council of Australia ... Big agenda items ... Long lists of projects ... Run, run, run 

Arthur Moses; SMH half marathon, May 2017. Time: 2:04:14

Arthur Moses SC has been practising at the NSW bar for more than 20 years. He was appointed senior counsel in 2008 and his practise includes administrative law, coronial inquests, corruption inquiries, proceeds of crime litigation, work health and safety prosecutions, employment and industrial law, discrimination, restraints of trade, commercial and equity cases. 

He has appeared in numerous high profile corruption investigations, advised and appeared for the NSW Crime Commission and for the former NSW Police Minister in the ICAC inquiry into political donations. 

He has also appeared in the NSW Court of Appeal for senior crown Prosecutor Margaret Cunneen in her successful challenge to the powers of ICAC and was part of her legal team in the High Court. 

Moses regularly appears for the Commissioner of the Australian Federal Police in proceeds of crime matters. He is also currently appearing for the former NSW Deputy Police Commissioner, Nick Kaldas in his challenge in the NSW Supreme Court to the Ombudsman's Report in Operation Prospect. 

He's also a squadron leader in the Royal Australian Air Force Specialist Reserve and a member of the ADF work health & advisory group and advises in matters for the Office of the Director of Military prosecutions, Defence Counsel Services as well as advising the Inspector General of the ADF. 

Describe yourself in three words.

Persistent, loyal and annoying.

What are you currently reading? 

"Bobby Kennedy - The making of a Liberal Icon," by Larry Tye.

What's your favourite film?

"Muhammed Ali's Greatest Fight" - it combines my passion for law and boxing.

Who has been the most influential person in your life? 

My late mother. She could not read or write but was the wisest and strongest person I have known. 

When were you happiest? 

When the Parramatta Eels were winning grand finals.

What is your favourite piece of music? 

Midnight Oil's "Beds are Burning".

As well as president of the NSW bar you are also treasurer of the Law Council of Australia. Are you juggling too many jobs? 

The bar prepares you well to do more than one thing at a time. At the moment all is well. I am surrounded by an extremely talented and hardworking executive and staff in both organisations. 

What is in your refrigerator? 

Chicken, plenty of fruit and vegetables.

Have you a favourite recipe that you would like to share? 

Can't cook; can't bowl, can't bat.

What makes you frightened? 

Politicians who attack the judiciary for supposed political gain without understanding the impact it has on the rule of law in society. The recent attack on the Victorian Court of Appeal, which included personal comments about the judges, was disgraceful. 

Who would you like to play you in a film about your life?

Rowan Atkinson. 

Who would you most like to be with in a lift that has broken down? 

Angela Merkel.

Why law, and not another worthwhile pursuit in life? 

Good question. My father wanted me to be a mechanic and leave school when I was 15 but my mother persuaded him that I should be allowed to finish school. 

What was your most interesting case as a barrister? 

I have been fortunate to be in a few. There are two that come to mind as a young, junior barrister: 

• Hollingsworth v The Commissioner of Police in which I appeared for the applicant. The case involved a former stripper/prostitute in an unfair dismissal case against the Police Force. The applicant had been dismissed when the Police Force became aware of her former occupation; and 

• NAALAS v Bradley. Appearing in a contempt matter for an aboriginal legal aid service against the former Chief Magistrate of the NT in relation to statements that were made during a press conference. The substantive proceedings involved a challenge to the validity of the appointment of the former NT Chief Magistrate. 

What was the most important opportunity you didn't take? 

Progressing as a NSWRL referee after getting my refereeing ticket as a 16-year-old. 

If you were on death row, what would you request for your last meal?  

Grilled Barramundi and a large bowl of tabouli.

If you were a foodstuff, what would you be?

Zucchini - because I get a lot stuffed into me every day by staff, juniors and solicitors (and occasionally a judge).

Who do you most admire professionally?

Julian McMahon AC - a courageous and selfless barrister from the Victorian Bar who has worked tirelessly for Australians on death row in overseas countries.

What is your favourite word?

Home.

What would you change about Australia?

The rising rate of indigenous incarceration. In NSW alone, it has increased by 25 percent since 2013. 

What initiatives are you implementing as president of the NSW bar? 

I work with the bar council as a team. It is early days but at the moment some of the issues we are looking include: 

• Reviewing the strategic plan of the NSW Bar Association with a view to examining how we can provide services to members that better assists them in their practices. 

• Closer engagement with the Association of Corporate Counsel. Approximately 30 percent of the legal profession is employed as in-house counsel. Potential direct briefing by these lawyers is a new source of work for the junior bar. 

• Reviewing the 2017 Quality of Working Life Survey of the NSW bar in order to find what evidence based policies can be implemented in relation to issues such as bullying or inappropriate behaviour by some members of the judiciary that impact on barristers and the remuneration for junior barristers who undertake stressful legal aid work. 

• Educating solicitors and clients about the benefit of briefing counsel at an early stage of proceedings in order to assist in focusing issues in proceedings as well as reducing costs.

What do you hope to achieve by the end of your term as president of the of the NSW bar association? 

• Implementing measures to reduce indigenous rates of incarceration. 

• Increasing the work of junior barristers, as they are the future of the independent bar. 

• Securing extra funding for legal aid in order to ensure that people are better represented and lawyers are properly remunerated. During a Law Week speech in the Northern Territory this year, former chief justice Robert French noted that in order for the rule of law to operate effectively, access to justice cannot be limited to the rich and powerful. 

• Trying to get the balance right between the statutory functions that the bar association undertakes dealing with the conduct of barristers as well as providing services to members. 

• Increasing the awareness of mental health and other health issues confronting barristers and implementing measures to deal with these problems.  

• Promoting diversity at the bar and the judiciary. Diversity includes, but is not limited to, gender, race and practitioners with different socio-economic backgrounds. Michael McHugh and Justice Stephen Gageler have both made the point that the judiciary better serves the community when it reflects the community. And, of course, members of the judiciary should be selected on merit.

What comes into your mind when you shut your eyes and think of the word "law"? 

Sleep.

Fast sleeper Julian Burnside is On The Couch ... His latest book is a must for all good shelves ... Watching Out: reflections on justice and injustice ... A book about a chimera ... Fresh confessions are unburdened 

Burnside: frightened of failure

Julian Burnside QC specialises in commercial litigation, which has not disguised the fact that he is one of Australia's leading human rights advocates, particularly with his work for refugees. 

He is a former president of Liberty Victoria, is a passionate lover of the arts and chair of Melbourne arts venue fortyfivedownstairs. For good measure, he regularly commissions musical compositions. 

He has published a children's book, Matilda and the Dragon, as well as Wordwatching, a collection of essays on the uses and abuses of the English language, and Watching Brief: reflections on human rights, law, and justice. 

Now comes Watching Out: reflections on justice and injustice. In his introduction to the book Burnside says at first he was uncertain about the project. He didn't want it to be an autobiography, or a collection of war stories. 

Instead, he thought it should be a book about the justice system. When he told a friend about this idea, she pointed out that we do not have a justice system - we have a legal system. The author says: 

"But a book about the legal system sounds to me a bit too much like a textbook. And, anyway, I am not sure how much the legal system interests me ... 

Justice interests me much more than law does. So this is a book about a chimera: a creature that does not exist, but that is real enough in the mind." 

We tried to get inside Burnside's mind by inviting him onto Justinian's couch. Here goes ... 

Describe yourself in three words.

Driven, anxious, inadequate.

What are you currently reading? 

"Sapiens," by Yuval Harari. 

What's your favourite play?

"Artist Descending a Staircase," by Tom Stoppard.

Who has been the most influential person in your life? 

Professor Louis Waller.

When were you happiest? 

When I married Kate. 

What is your favourite piece of music? 

Beethoven: String Quartet No. 15, 3^rd movement. 

The law ... writing ... the arts ... refugees. What are your secrets of time management? 

Sleep faster. 

What is in your refrigerator? 

Chicken, vegetables, garlic, ice creams.

Have you a favourite recipe that you would like to share? 

Yes.

What makes you frightened? 

Failure. 

Why did you write "Watching Out – reflections on justice and injustice" and what are you seeking to say? 

The legal system exists in order to deliver Justice. We should never forget that.

Who would you like to play you in a film about your life?

I would not want to inflict on anyone a film about my life. 

Who would you most like to be with in a lift that has broken down? 

A lift mechanic. 

Why law, and not another worthwhile pursuit in life? 

It was a lucky accident.  

What was your most interesting case as a barrister? 

The Waterfront dispute in 1998. 

What was the most important opportunity you didn't take? 

In a different universe I might have been an artist. 

Do you sometimes feel it's all too much and you should just chuck it in? 

No.  If you keep trying, you might just win.  If you chuck it in, you will lose.

If you were on death row, what would you request for your last meal?  

KFC. 

If you were a foodstuff, what would you be?

Probably something disappointing, like broccoli. 

Who do you most admire professionally?

Bret Walker SC. 

What is your favourite word?

Halcyon. 

What would you change about Australia?

The politicians. 

What comes into your mind when you shut your eyes and think of the word "law"? 

"Could do better."

The High Court hearings on the same-sex marriage postal survey ... The subjective state of Mathias Cormann's mind comes under the microscope ... Whether the advance to the finance minister was "urgent" and "unforeseen" ... School Chaplains' case ... Plaintiffs' and Commonwealth's arguments ... Curtain raiser from Scott Young 

Minister Minister Cormann: advance was "urgent because it was unforeseen"

FOLLOWING the chief justice's decision to defer the resolution of the dual-citizenship debacle to October, attention has shifted to the two challenges to the government's proposed postal survey on same-sex marriage to be heard tomorrow (Tuesday, Sept. 5): Wilkie v Commonwealth and Australian Marriage Equality Ltd v Minister for Finance. 

The postal survey challenges raise fundamental questions about the government's appropriation and spending powers and have the potential to change the relationship between parliament and the executive.

The challengers and the Commonwealth have now filed their written submissions, and the issues are (in short):

1. the plaintiffs' standing, or right to challenge the proposal in court;
2. the validity of the Appropriation Act (No 1) 2017–2018, so far as it provides for an Advance to the Finance Minister (AFM);
3. the validity of the finance minister's determination to use the AFM for the survey;
4. the validity of the Treasurer's direction to the Australian Bureau of Statistics to carry out the survey;
5. the power of the ABS to carry out the survey; and
6. the power of the Australian Electoral Commission to assist it.

If the challengers can establish that they have standing and succeed on any of their other arguments, the postal survey is dead in the water. 

But the most interesting points, and the focus of the argument raised by Australian Marriage Equality, concern the AFM. This case is the High Court's first opportunity to directly examine the constitutional validity of the Advance to the Finance Minister, an important and occasionally controversial means of appropriating funds without parliamentary approval.

The Advance to the Finance Minister

The current version of the AFM, which is found in s.10 of the Appropriation Act (No 1) 2017–2018, gives the finance minister the power to determine that there is an "urgent need for expenditure" which was "unforeseen until after the last day on which it was practicable to provide for it" in the Appropriation Bill. 

The effect of the determination is to amend the Appropriation Act to authorise additional expenditure, up to a cap which is currently fixed at $295 million. 

On August 9, 2017, the finance minister gave the ABS $122 million under the Advance to the Finance Minister Determination (No. 1 of 2017–2018). 

The AFM dates to the "Advance to the Treasurer" of £10,000 included in the very first Act passed by the Commonwealth Parliament, the Consolidated Revenue Act 1901. 

The concern that it might be abused arose in an inquiry conducted by the Senate Standing Committee on Finance and Government Operations in 1979. After that inquiry, the "urgent [and] unforeseen" criteria appeared in the Appropriation Act (No 1) 1980–1981 and have been reproduced in every annual Appropriation Act since. 

Constitutional uncertainty of the AFM for the postal survey

In 1998, the Howard government caused controversy by using the AFM to fund a "community education and information programme" (CEIP) - an advertising campaign promoting the GST, which it promised to introduce if re-elected. 

Shortly after the election, the auditor general conducted a "limited scope performance audit of the program" and produced a report entitled Taxation Reform – Community Education and Information Programme, concluding "that the approval of funds from the [AFM] met the legislative conditions that the requirement for the funds was urgent and unforeseen". 

But this conclusion, which was based on unspecified and unreleased legal advice, was doubted by constitutional scholar Professor Geoffrey Lindell in an article published in the Constitutional Law & Policy Review in 1999. 

According to Lindell, there was a "strong case" for doubting the validity of the CEIP expenditure under the AFM, which could have been tested by the attorney general. 

Noting "the likely unwillingness of the Government to have the legality of its own actions tested in a court of law," Lindell suggested that the expenditure could potentially have been challenged by a State attorney general, member of parliament, election candidate or even a taxpayer, and suggested the possibility of a "liberation of the rules of standing in public law litigation". 

Constitutional developments since 1999

Lindell's observations were prescient. In Combet v Commonwealth (2005), two judges of the High Court (McHugh and Kirby) held that the shadow attorney general, Nicola Roxon, had standing to challenge the government's expenditure on political advertising promoting WorkChoices. 

McHugh and Kirby JJ were both in dissent, but the majority judges still considered and rejected the challenge in order to avoid the need to make a decision on standing. 

Four years later, in Pape v Commissioner of Taxation (2009), the whole court accepted that taxpayer Bryan Pape had standing to challenge the validity of the Rudd government's economic stimulus package.

In Pape the court accepted that parliament had the power to legislate for the payment of tax bonuses to deal with the global financial crisis, in the absence of an explicit source of power under s.51 of the Constitution. The bare majority who upheld the legislation in its entirety (French CJ, Gummow, Crennan and Bell JJ) relied on the power in s.51(xxxix) to legislate with respect to matters incidental to the exercise of federal executive power. 

That executive power extended to addressing an economic crisis by means which were "peculiarly within the capacity and resources of" (French CJ) or "peculiarly adapted to" (Gummow, Crennan and Bell JJ) the federal government.

It seems clear that s.51(xxi) of the Constitution, by granting the parliament the power to legislate with respect to marriage, could have supported a law like the Plebiscite (Same-Sex Marriage) Bill 2016 had it not been twice rejected by the Senate. 

But the scene was set for a challenge to the Government's executive authority to fund the postal survey when Western Australia began its oral argument in Williams v Commonwealth (2012). 

Heydon: uncommon common assumption

As High Court judge, polyglot, scholar of 18^th century European war history and 19^th century English poetry, Dyson Heydon, recounted: 

"[The Commonwealth] submitted that the executive power of the Commonwealth included a power to do what the Commonwealth legislature could authorise the executive to do by enacting legislation, whether or not the Commonwealth legislature had actually enacted the legislation ... In its written outline of oral argument, the Commonwealth was thus correct to describe the assumed proposition as a 'common assumption' - correct at least at the time when that document was composed before the second day of oral argument commenced ... 

The extent to which the common assumption was actually common began to break down when Western Australia began its oral address. It withdrew the relevant part of its written submissions. Victoria and Queensland followed suit. In due course, the plaintiff and most government interveners withdrew their assertion of the common assumption and lined up against the defendants. This great renversement des alliances created a new and unexpected hurdle for the defendants. So the Court was as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night - although the parties were more surprised than ignorant." 

The majority of the court (excluding Heydon) rejected this "common assumption" and held that the government lacked the executive power to fund the National School Chaplaincy Programme without legislation. 

As Professor Anne Twomey later said, Williams involved "major changes and development in our understanding of the Constitution, [and] it will take many decades of future cases for it to be refined into a comprehensible and logical set of principles and rules". 

Tomorrow's hearings present an opportunity for the High Court to continue that process. 

The plaintiffs' arguments

In the Wilkie matter it is submitted that the AFM is unconstitutional "in whole or in part". Drawing on the observation of Latham CJ in Attorney-General (Vic) v Commonwealth (1945) that "there cannot be appropriations in blank", the plaintiffs argue that the AFM is so wide as to authorise an appropriation for "any purpose whatsoever" so long as the threshold criteria of urgency and unforeseeability are satisfied, and therefore an invalid exercise of legislative power. 

It is also argued that the AFM impermissibly bypasses the "single, finely wrought and exhaustively considered, procedure" mandated by the Constitution for the approval of government expenditure, and constitutes an impermissible delegation of legislative authority by denying parliament its usual power to disallow legislative instruments.

The argument put on behalf of Australian Marriage Equality is less radical. Because the Appropriation Act (No 1) 2017–2017 originated in a non-amendable bill for the "ordinary annual services of government", Australian Marriage Equality argues that the purposes of the Act, and therefore of the AFM, are limited to those "ordinary annual services". 

It argues that the postal survey is not part of the ordinary annual services of the government because (among other reasons) it is unprecedented in Australian history, on a scale that vastly exceeds that of any survey that the ABS has been called upon to conduct in the past, and to be conducted only as a result of the failure of the Plebiscite (Same-Sex Marriage) Bill 2016 in the senate.

In both cases, it is argued that even if the AFM is capable of supporting expenditure of the kind the finance minister has determined, the statutory criteria for the determination have not been met. 

In Wilkie, the argument is that an AFM determination is reviewable under ordinary administrative law principles, and that the minister "erred in law in being satisfied that there was an urgent need for the proposed expenditure because it was unforeseen". 

It is submitted that the question of urgency is a "broad" jurisdictional fact which can be determined by a court, but even if it is a "narrow" jurisdictional fact (based on the minister's subjective state of mind) the determination can be set aside because the minister misconstrued the meaning of the terms "urgent need" and "unforeseen", or formed an opinion which was "arbitrary, capricious or unreasonable". 

The argument in Australian Marriage Equality focuses on the construction of the AFM criteria as "broad" jurisdictional facts which can be reviewed by a court. The minister's subjective views as to urgency and unforeseeability are not directly attacked as "capricious", although it is suggested (as an alternative) that "there is no basis on which a reasonable person in the position of the finance minister" could be so satisfied. 

AFM functions as a Henry V111 clause

Australian Marriage Equality urges the court to interpret the AFM criteria strictly given the AFM's function as a "Henry VIII clause," noting that such clauses have been "frequently criticised for good reason". 

Both sets of plaintiffs argue that the Finance Minister misconstrued the test by "conflating" or "collapsing" the concepts of urgency and unforeseeability, referring to the Explanatory Statement to the Determination as to the expenditure "being urgent because it was unforeseen".

The Commonwealth's response

The Commonwealth's submissions in Australian Marriage Equality identify several recurring themes, which are also incorporated in the submissions in Wilkie. 

Appropriation Acts are special ("a rara avis in the world of statutes"); the courts should not supervise the relationship between parliament and the executive; it is for the parliament to exercise guardianship over Commonwealth finances through the "vigorous scrutiny" of parliamentary processes; and it would be "practical[ly] impossib[le]" to do anything about an illegitimate appropriation anyway.

Many of these themes are drawn from the seven separate judgments in the AAP Case, a High Court decision notable for its incoherence. It concerned a challenge to the Whitlam government's Australian Assistance Plan brought by Victoria, and supported by the coalition governments in Western Australia and New South Wales. 

McTiernan, Jacobs and Murphy JJ delivered separate judgments in favour of the Commonwealth; Barwick CJ, Gibbs and Mason JJ each gave their own reasons for holding that the appropriations were invalid; and Stephen J broke the tie in favour of the Commonwealth without actually finding that the program was constitutionally valid, by simply declaring that the States have "no relevant interest in the spending of federal moneys". 

Despite the High Court's apparently flexible approach to the question of standing in Pape, the Commonwealth maintains that none of the parliamentarians or advocacy groups can bring a challenge, and repeats Stephen J's conclusion that even a State lacks the authority to do so.

If the challenge is to be heard, the Commonwealth also says that the plaintiffs' arguments rely on a "basic misconception" as to the operation of the AFM. 

According to the government, the AFM appropriates nothing, and merely "links" funds already appropriated to a specified entity and outcome. The appropriation is achieved by s.12, which provides that the consolidated revenue fund "is appropriated as necessary for the purposes of this Act". 

As to the suggestion that the finance minister erred in finding that the need for expenditure was urgent and unforeseen, the Commonwealth submits that the court should not review the minister's subjective state of mind and any suggestion that he may have conflated the concepts of urgency and unforeseeability is based on an unhappy "looseness of language". 

The Commonwealth also draws a distinction between the power to appropriate funds and the power to spend them. It accepts that Pape and Williams established the parliament's authority to control spending, but argues that the authority is found in the legislation establishing the ABS and AEC. 

The Commonwealth repeats what was recently said by the Deputy Australian Statistician to the Senate Finance and Public Administration References Committee: the postal survey is a valid direction to the ABS to collect "statistical information" about electors' opinions.

Conclusion

The shadow attorney general puts the plaintiffs' chances of success at 50 percent, and Professor George Williams reportedly characterises the Solicitor-General's argument as a "tough ask". 

If the High Court treats the case with the same urgency as its electoral law decisions in Roach, Rowe and Murphy, it could make a decision at the conclusion of the hearing in Melbourne on Wednesday, September 6 and publish its reasons at a later date. 

Hopefully, those reasons will include a majority opinion that clearly establishes the High Court's position on the AFM. 

Restlessness among the senior prefects of the NSW Law Soc ... New junior vice sworn-in ... Councillors stirring against senior vice with strange memo in circulation 

Espinosa: junior vice

ELIZABETH Espinosa takes over as junior vice on the executive of the NSW Law Society, replacing the ousted Coralie Kenny. 

A tight field of contenders also had their hand up for the gig and the slippery slide up the pole towards the presidency: Hugh Macken, Mark Warton and Coralie herself. 

Elizabeth is from out Liverpool way where she is the in-house legal person on Liverpool Council - quite a testing job navigating the hot issues in that edgy borough. She also touches some important diversity buttons. 

Fortunately, there's a build-up of fresh shenanigans within the society's inner sanctions. 

A bit of a "Stop Doug" campaign is circulating in an effort to head off the current senior vice, Doug Humphreys, from assuming the presidential poisoned chalice in November. 

Maybe, like Malcolm Roberts, he's a dual citizen, but more likely it comes down to whether he is really a "government member". 

Lt Col Doug Humphreys (army legal corps) is the principal member of the Veterans' Review Board, which reviews decisions about repat pensions, but not service pensions. 

He previously worked at the Legal Aid Commission where he was known as Barry Dangerous, followed by a stint as the principal registrar at the AAT. 

Lt Col Humphries in firefighting mode

He has a string of impressive post nominals - OAM, BComm, LLB, LLM, GDML and Acc Spec Govt & Admin Law. Intriguingly, GDML translates into the General Douglas Macarthur Lodge. 

He loves restoring fire-related equipment and apparently had a hand reviving the old bell at the Bathurst Fire Station where his Dad served as a fireman. 

Barry (Doug) also restored a splendid fire-engine which he keeps in his garage at home, occasionally taking local kids for a spin around the block. 

There's a touch of Captn Mainwaring about Barry, which makes it all the more surprising that stirrers are now questioning his bone fides to be the next president of the society, let alone to be on the council.  

This intriguing, anonymous, document, doing the rounds in the Street of Shame, tries to grapple with the meaning of "government member" and questions whether Doug practises law at all, being the head of a tribunal that reviews pensions. The Law Society website states that his practising certificate is for the "principal of a law practice". 

The complaint also seems to be that if he works for an independent tribunal he may not be working as for the "government". 

It's all rather puzzling. 

Restlessness among the senior prefects of the NSW Law Soc ... New junior vice sworn-in ... Councillors stirring against senior vice with strange memo in circulation 

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Champagne - a product as much driven by marketing and legend as by the content of the bottle ... Ten myths exploded in a new critique of the bubbly libation ... Justinian's wine man G.D. Wendler explains, just in time for Christmas  

Champagne: one-and-a-half billion bottles in chalk cellars

FRENCH Champagne is often associated with celebration, success, prosperity , sometimes pretension. 

Champagne and how the Champenois make and market their product to consumers has always been a matter of controversy. This controversy is explored by Robert Walters in his book: Bursting Bubbles - A secret history of champagne and the rise of the great growers (second edition Champagne - A Secret History).

Walters is a champagne importer based in Melbourne. His book is evidence of long experience in Champagne and with le champagne.    

Walters contends:

"It is impossible to understand champagne and its history without grasping that it was the traders, the negociants, the business people of the region, and not the growers, who launched and drove the success of sparkling champagne."

He warns the reader his book is "not a wine guide", that he is "not completely impartial", his arguments are not his alone nor is his book a vehicle for "Grandes Marques bashing". 

Lamentably, there have been few books over the last 50 years dealing solely with the Champagne region of France as a subject of viticultural interest. Historically the most accessible books on champagne appear to be: Champagne by Patrick Forbes (1967), The History of Champagne by Andre Simon (1971), Champagne by Tom Stevenson (1988) and The Champagne Guide by Tyson Stelzer (2017) now in its 5^th edition.

The Champagne region is about 140 kilometres north-east of Paris and covers some 33,000 hectares comprising Montagne de Reims, Cote des Blancs , Vallee de la Marne, Cote de Sezanne and the Cote des Bar. 

Apparently a bottle of French champagne is opened somewhere in the world every minute of every day. Stockpiles in the chalk cellars of Champagne  are estimated to be somewhere around 1.5 billion bottles.

The centrepiece of Walters' disquisition is the identification and destruction of ten myths or bullshit stories associated with the champagne narrative, namely :

1. The myth that  Dom Perignon, a blind 17^th century Benedictine monk of the Abbaye Saint-Pierre d'Hautvillers, was the father of champagne. He wasn't, nor was he blind or the first to make blended champagne. Despite the bronze statue  allegedly of Dom Perignon that greets visitors to Moet & Chandon in Epernay there is no historical record of what Dom Perignon looked like. However, the enterprising monk did discover the usefulness of cork bark stoppers for the excellent white still wine produced by the Abbey.

2. That champagne was the original sparkling drink. No, the English in the seventeenth century were the first to make sparking drink in the form of apple cider.

3. Grand cru vineyards produce the best wines. This is a fallacy when any village in Champagne has both excellent and poor quality vineyards. Also, Walters reminds us of the shocking history and practise of using pulverised city rubbish or boues de ville as fertilizer in the vineyards of Champagne. This was outlawed in 1998. 

4. Placing a spoon in the top of a champagne bottle helps preserve the bubbles. Nonsense! Use a traditional champagne stopper if you wish to keep your champagne fresh.

5. Only three grape varieties are utilised to make champagne. Not so. There are at least seven varieties of grape used in the production of champagne.

6. Blending makes  better champagne. Maybe, but some of very best champagne comes from single vineyards – Salon, Krug's Clos du Mesnil and Clos d'Ambonnay, Philiponnat's Clos des Goisses and,in my opinion, a number of  modest profile grower/producers e.g. Vollereaux, Pierre Peters, Gimonnet & Fils, Paul Dethune, Hure Freres, to name a few.

7. Bubbles in a glass of champagne are formed on imperfections on the surface of the glass. Recent scientific investigation has  concluded that microscopic imperfections on the surface of a glass are places where microscopic cellulose fibres accumulate and thus allow bubbles in champagne to form.

8. Champagne should be served in a flute style glass. Not necessarily.  A tulip shaped glass is likely to give the greatest pleasure to the champagne aficionado.

9. Champagne is mentioned in the Bible. There was no sparkling wine in biblical times.

10. The smaller the bubbles the better the quality of the champagne. Rubbish! Bubble size is determined by the gas pressure in a bottle of champagne. Champagne quality is determined by the quality of the grapes and the excellence of the methode traditionnelle.

Rather than concentrate his attention on the pioneering and high profile champagne houses such as Moet & Chandon, Bollinger, Pol Roger, Krug, Taittinger, Veuve Clicquot, Charles Heidsieck and so on, Walters showcases and promotes a number of excellent small Champagne grower/producer labels such as Jacques Selosse, Jerome Prevost-La Closerie, Egly-Ourient, Agrapart & Fils,  Lamandier-Bernier and Ulysse Collin.

May I suggest that when raising a glass of champagne during this festive season you reflect a moment upon satirical magazine Charlie Hebdo's typically Gallic response to the  religious fascists who two years ago murdered twelve of their employees and injured eleven others:

Ils ont les armes. On les emmerde, on a le champagne – (They have guns, fuck them, we have champagne!)

G.D. Wendler

Finnane: formed in the furnace of the law, the church, the army and the ALP

Describe yourself in three words. 

Determined, strong-minded, compassionate.

What are you currently reading?  

Holdsworth's "History of English Law" Volume 1 and "Rather His Own Man" by Geoffrey Robertson. 

What's your favourite film?  

"The Winslow Boy" (black and white version). 

 Who has been the most influential person in your life, and why? 

My mother. She taught me mental toughness. 

When were you happiest?  

When I was growing up at Rose Bay.

What is your favourite piece of music?   

The chorus of the Hebrew Slaves from Nabucco. 

Why did you think it was important to write The Pursuit of Justice?  

I wanted to tell a story about a life in the law that explained why I was a lawyer and how the court system worked.

 What has been your most memorable case? 

 The Skaf [rape] trials.

Do you think the High Court might have restored your sentences in the Skaf case?  

They did not do so. I could not see that any special leave point was involved. 

What is in your refrigerator?  

Food but no alcohol.

What is your favourite website? 

Austlii. 

What lessons did you draw from your inquiry into Ian Sinclair MP?  

 • To investigate something touching a powerful political figure, will bring you into conflict with the political establishment;

• The media will pursue you, at times unfairly;

• You will be subject to intemperate and unjust criticism if you ever investigate the activities of anyone who was powerful. 

What words or phrases do you overuse?  

I can't think of any.

What is your greatest weakness?  

I am no good at games involving eye/hand co-ordination. 

Why did you want to be a lawyer?  

Because I wanted to be a barrister. 

What other occupation would you like to have liked to pursue?  

Playwright or novelist. 

If you were on death row, what would you request for your last meal?  

Prawn Laksa with noodles followed by Tiramusu with cream.

If you were a foodstuff, what would you be?  

Mango.

 What human quality do you most distrust?  

Emotional over reaction leading to kneejerk actions. 

What would you change about Australia?  

I would abolish State governments, have one Australian parliament and no States.

Who or what do you consider overrated? 

The notion that the court system delivers justice to all who seek it. 

What would your epitath say? 

He was an eccentric, who tried his best.

What comes to mind when you shut your eyes and think of the word "law"? 

I think of all the barristers, solicitors and judges I have met over nearly 60 years and some of the cases in which I have been involved. 

President of Vic's Bar n Grill on Justinian's Couch ... Matt Collins discusses the findings of the State of the Victorian Bar report ... Solicitors eating more of the bar's lunch ... Barristers not overpaid, considering ... Love of Paris, The Beatles, and Australian cinema ... The Hockey case ... Defamation laws unfit for purpose ... An impatient driver of change 

Collins: obsessed about impeachment

DR Matt Collins QC is the President of the Victorian Bar and one of Australia's leading defamation silks. He has acted in many of the most important free speech cases of the past generation, as well as for Rebel Wilson in her recent triumph over Bauer Media.

He is the author of all three editions of The Law of Defamation and the Internet (OUP, 2001, 2005, 2010) and a modestly titled text on the defamation laws of England and Wales, Collins on Defamation (OUP, 2014).

He is a Senior Fellow at the Melbourne Law School, a door tenant at One Brick Court Chambers in London and a former national chair of the Law Council of Australia's Media and Communications Committee.

Matt is currently lead counsel for ANZ in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. 

He tiptoed away from Kenneth Hayne's abbatoir to spend a soothing moment unwinding on Justinian's couch ...  

Describe yourself in three words.

Energetic. Optimistic. Impatient.

What are you currently reading? 

James Comey's "A Higher Loyalty: Truth, Lies and Leadership". I've developed an obsession with how and when Trump will be impeached.

What's your favourite film?

"Muriel's Wedding." If it is on TV I drop everything. In the same basket with other great Australian films of that era: "Strictly Ballroom ... Priscilla ... The Castle".

Who has been the most influential person in your life? 

My partner, Leonard.

When were you happiest? 

The first time I saw Paris with my own eyes.

What is your favourite piece of music? 

I know I am supposed to nominate Mahler, but The Beatles, "The Long and Winding Road". Pathos and beauty even as the band was falling apart, and McCartney's final, defeated, "yeah, yeah, yeah, yeah". 

President of the Victorian Bar ... Barrister ... Royal Commission … What are your secrets of time management? 

There are secrets to time management?

Have you a favourite recipe that you would like to share? 

Step 1: Download Deliveroo

Step 2: Order food

Step 3: Meet the driver on the street

What is the most important thing you learned from the report on the State of the Victorian Bar? 

The report is a powerful tool for helping to drive a change in the conversation about the relevance of the independent Bar in the 21^st century. It proves that our demography has shifted dramatically and permanently.

It provides confidence that we are heading in the right direction with real momentum, and that we will increasingly reflect the community we serve. And it reminds me every day that while we are the custodians of an important institution, we are not immune from disruption. Our most important members are yet to join the Bar. 

Were there any disappointments for you in the findings? 

The glacially slow rate of improvement in the proportion of women silks. And data proving what we knew anecdotally - that solicitors are briefing later and doing more of our traditional work in-house. 

Are barristers paid too much? 

No. Too many junior criminal barristers struggle to make ends meet. Our top silks don't match the earnings of CEOs of ASX200 companies. But for most barristers between those extremes, it is a well-remunerated career for work that is often grindingly difficult and stressful.

Who would you like to play you in a film about your life?

Rebel Wilson.

Rebel playing Matt

Why law, and not another worthwhile pursuit? 

I don't like the sight of blood.

What was your most interesting case as a barrister? 

The "Treasurer for Sale" defamation case brought by Joe Hockey against Fairfax Media, in which I acted for Fairfax. Opaque political fundraising, front page splashes across multiple mastheads, posters, tweets, internal editorial machinations. Members of the public contacted me with ideas for cross-examination, almost all of which were completely loopy.

Is there too much defamation and what can be done about it? 

Wash your mouth out.

Seriously, our defamation laws are not fit-for-purpose. They do not provide quick or cost-effective remedies for the gravely defamed; but nor do they protect the media in cases involving good faith investigative journalism that is in the public interest. Urgent reform is required. I am available to draft the legislation.

What was the most important opportunity you didn't take? 

Pursuing politics, for fear that being gay would have been an insurmountable impediment.

What do you want to achieve during your time as bar president? 

I have a busy agenda, informed by our core values: independence, excellence, leadership, growth. Major projects include an ambitious diversity and inclusion program, reforming and expanding our commitment to pro bono work, showcasing in every forum the Bar as a centre of legal excellence, and improving work opportunities for members. 

Who do you most admire professionally?

My parents, both of whom were school teachers, and wanted their children's lives to be better than theirs.

What is your favourite word?

Exordium.

What would you change about Australia?

Its geographic location.

What comes to your mind when you shut your eyes and think of the word "law"? 

I just tried that. I shut my eyes and thought of the word "law". My mind was blank for quite some time, but the thought that eventually triumphed was the privilege that comes from the luck of being able to do this job in this place at this time.