Category: Uncategorized

Usually judges outlast the governments that appoint them. Politicians face regular elections by a fickle public. Judges, on the other hand, are appointed till age 70 in the federal sphere.

But the Howard Government has been in place for more than 11 years. It has appointed five of the seven High Court judges. Now it has outlasted its second appointment – Justice Ian Callinan, who is due to reach the compulsory retirement age set by the 1977 amendment to the Constitution on September 1. A new appointment must be made. Who is it likely to be? What effect will the appointment have?

The other two justices – William Gummow and Michael Kirby – were appointed by the previous Labor Government.

The appointment of High Court judges is, in effect,is the gift of the Prime Minister, though the High Court Act requires the Federal Attorney-General to consult with state Attorneys-General. That change was made by The Fraser Government after suggestions that the wicked, centralist socialists in the Labor Party would stack the court with their own kind and trammel states rights.

It fact the process is fairly meaningless. NSW Attorney-General John Hatzistergos has accused the Commonwealth of ignoring state recommendations to other bodies and the president of the Australian Bar Association, Stephen Estcourt, among others, wants an overhaul of how High Court judges are selected.

In all, though, the Howard Government’s appointments to the High Court – unlike other bodies – have been relatively free from political bias and jobs for mates. That can perhaps be put down to the fact that it is not difficult for conservative governments to find conservative judicial appointments because the cream of the legal profession are fairly conservative, as is the judicial process itself, whereas a reformist government seeking a reformist appointment has to pick someone who wears their activist or reformist attitudes on their sleeve.

Federal Attorney-General Philip Ruddock can simply ignore the states’ suggestions. He also consults state and territory Bar associations. Again he can ignore them. However, the process is at least useful in ensuring no-one gets overlooked or that anyone with a skeleton in the closet is not likely to get appointed. This is more possible these days, than say 30 years ago, because there are so many judges and the Federal Attorney could not be expected to know all of them.
Of the five Howard appointments (six if you count the elevation of Gerard Brennan to the Chief Justiceship), Callinan was perhaps the most controversial on a couple of accounts. He was appointed in February 1998 shortly after former Deputy Prime Minister Tim Fischer called for the appointed of a “capital-C conservative” – a reaction to High Court land-rights decisions unfavourable to the National Party cause.

Callinan, before and after his appointment, has been an unabashed states’ righter. It is difficult to see how the Government could find and appoint someone to replace those states’ rights credentials. Indeed, Callinan’s states’ rights views have been so strong that he would have struck down the Government’s industrial-relations laws on the ground they would have usurped state industrial-relations laws – but he was in the minority.

So it seems that the court is to become slightly less conservative and in favour of states’ rights with the next appointment.

Callinan also comes from Queensland. The big question is whether his replacement will come from Queensland. It would be difficult for the Government to appoint from NSW or Victoria given all of the other six justices come from those states.

That said Ruddock has consistently said that appointments are made “on merit”. State representation; the “need” for more women or the “need” for representation of a particular segment of society should be ignored, he says.

It is perhaps easier to rule out than rule in prospective appointments. NSW and Victoria are probably out, though Commonwealth Solicitor-General David Bennett (NSW) is in with a chance despite being over 60 because he has argued very difficult cases for the Howard Government on immigration, security and workplace laws. He might have a better chance when the next vacancy comes up next year, if the Government is still in power.

Tasmania has no candidate who the legal profession would think suitably qualified. South Australia has its Chief Justice and former Solicitor-General John Doyle who is highly regarded as a lawyer, but at 62, probably two old. Governments like to get 10 years out of their judges. He should have been appointed years ago.

An appointment directly from the Bar of any state is unlikely. Other than Callinan, it has been 30 years since there was an appointment straight from the Bar. Other appointments have all been judges, Attorneys-General or Solicitors-General. There are more courts with more judges these days, so Governments can see someone’s judicial flavour rather than choosing from the Bar where a person’s judicial leanings are less obvious.

Two female Western Australian Supreme Court are a chance. Justice Christine Wheeler was the first female senior counsel in the state and Justice Carmel McLure. Justice McLure worked for former Liberal Attorney-General Senator Peter Durack in the Fraser Government.
The Chief Justice of Queensland Paul de Jersey has been mentioned. He is 58. He has spoken out about judicial activism. But you would have to query whether a Chief Justice from any of the three main eastern states would take an appointment as a puisne judge on the High Court.

Queensland Supreme Court Justice and former Queensland Solicitor-General Patrick Keene is a possibility.

But as it happens there is a fairly neat alignment of circumstances for the Government that it can safely appoint a Queenslander and win applause across the legal professional spectrum and among people who would like to see more women on a court that has only had two women members in its 104 year history. Susan Kiefel is a judge of the Federal Court of Australia, based in Brisbane. She is highly thought of in the profession and would be a safe, fairly conservative judicial appointment – certainly not a judicial activist.

Whoever wins the next election will get to make appointments in 2008 and 2009. Then there are no appointments till 2015, presuming no deaths or early retirements.

The surprising thing is that since Callinan’s appointment in 1998, there has not been much public debate about the way High Court judges are appointed, given the huge influence the court has – directly and indirectly – over our lives.

Perhaps there is a lesson there for governments: if you go for good legal competence and good judicial track records in lower courts, agitation for changes to the appointment method that might reduce or constrain your power over appointments will go away.

Athletes say, “No pain, no gain”.
Last year’s ACT Budget was full of pain: big taxes increases; new taxes; slashes to health and slashes to education.
This year’s Budget has some gains. They are not spectacular, not gold medals nor even personal bests. But they do set the groundwork for Labor’s Jon Stanhope to be re-elected in 2008. Continue reading “Election Budget from Stanhope”

The Chief Justice of the High Court, Murray Gleeson, was bemoaning regulatory overload this week. He cited the Corporations Law, which had increased tenfold in the past 20 years. My guess is the volume of various taxation Acts would have gone up perhaps twenty-fold in that time.

”We have a constant problem in the High Court, for example, with identifying the statute that’s relevant to the case that we have to decide because these statutes are amended so often,” Gleeson said. ”If you compare the amount of legislative output of a modern parliament with the legislative output of 100 or 50 years ago, the change is extraordinary.” Continue reading “Forum for Saturday 31 march 2007 Swamped by law”

The Government has done nothing about the management of its $7 billion worth of intellectual property despite being warned about the neglect three years ago, the Australian National Audit Office says in its latest report.

The Audit Office recommended three years ago that the Commonwealth produce a whole-of-government policy statement and management guidelines. It said the task should be led by Attorney-General’s, Finance and the Department of Communications Information Technology and the Arts. The departments agreed.

Intellectual property is intangible property like computer software (about half the $7 billion), medical and scientific inventions, copyright in documents, logos and designs.

Three years after the 2004 recommendations, the Audit Office said in a report to Parliament tabled last week, “By December 2006, the overarching approach and guidance on IP management was not finalised. . . . It is still not clear when either the IP Principles or the IP Manual can be expected to be finalised or released.”

This is despite a joint parliamentary committee agreeing on the recommendations of the 2004 report and setting a deadline of May 2006.

The Audit Office said that many agencies had done nothing because they were waiting for the whole-of-government statements.

It said without proper management there was a danger the property could be lost, stolen or not used to best advantage either in revenue or in proper public use.

By CRISPIN HULL

Lawyers should lift their game and abandon expensive overseas conferences and stop abusing professional privilege, according to the shadow attorney-general, Nicola Roxon.

She said also that barristers’ immunity from being sued for negligence, recently upheld by the High Court, should be abandoned.

She told the inaugural Australian Women Lawyers conference in Sydney yesterday (Friday 29 September) that incidences of “lawyers behaving badly” were not symptomatic of the whole profession but they could not be dismissed as on-offs.

She cited a legal education conference in a US ski resort and a two-day conference in Prato, Italy, on the cost of justice with the conference dinner in a palace.

She cited lawyers’ roles in the $5.3 billion HIH collapse and the concealment of documents in the AWB and tobacco cases and the failure of some barristers to pay tax.

She accused public-sector lawyers of behaving badly in serving their departments and ministers rather than the public through obstruction in freedom-of-information cases, over-vigilant pursuit of welfare and refugee cases and coming up with the Pacific solution.

It did not help that at the head of the legal profession Attorney-General Philip Ruddock was prepared to use people’s fears for political purposes by suggesting the recent Western Australian native title case would prevent access to Perth beaches and parks and by linking David Hicks’s case to the recently drawn out NSW rape cases.

She said that she would defend the courts and not take part in under-mining them if she were Attorney-General.

Ms Roxon said that lawyers behaving badly threatened to undermine the much greater good that the legal profession did. She cited the huge amount of pro bono (free) work done for those who could not afford it. She also cited the good done by legal professional bodies in standing up for human rights. She said the great majority of the profession worked well, but was being let down.

Middle Australia thought of the legal profession as being only for the very rich or very poor; too costly and too riddled with delay.

This threatened confidence in the courts.

“There is a public good in peaceful and just resolution of disputes,” she said.

Ultimately, if people’s views of the legal profession and the legal system did not improve it would undermine the rule of law and threaten “our peaceful, stable and prosperous society”.

She said the immunity for barristers undermined confidence in the system. Its message was: “We have special rules. If you are negligent we will sue you, but if we are negligent you cannot sue us”.

She thought that legislation should be passed to overrule the immunity after debate among the professional bodies.

She called on lawyers to do more pro bono work; do more work with non-government organisations; speak out against abuse of professional privilege and support alternative dispute resolution.

Women lawyers had to act together to look after themselves in the face of inequality, according to former High Court judge Mary Gaudron.
“While ever men gather in private clubs, where women are excluded, and there discuss future appointments [to the judiciary] and their prodgeny, women have got to work together to look out for themselves because they are looking after themselves over lunches at the Australia Club,” she told the inaugural Australian Women Lawyers conference in Sydney yesterday (Friday 29 September). Continue reading “Stick together, woman ex-judge says”

Home-owners have been hit hard by the Budget – more than $450 a year on average.
Rates go up by more than usual and three new charges have been imposed on property owners. Continue reading “Homeowners hit by budget”

Jon Stanhope is in it for the long haul.
This is why he went now for a Budget that is tough – or in ministerial words one that is “economically responsible”.
Several factors allowed him to be tough – a-dollar-a-day tough, or more than $450 per home-owner if you add the utilities charge that will inevitably be passed on by ActewAGL, Transact and Telstra.
Politically, he is more than two years out from and election and the Opposition is in disarray. Continue reading “Long-haul Budget”

The Commonwealth Government could get itself into a constitutional bind over same-sex unions, if the attitude it displayed last week is any guide.

We have to accept that the Commonwealth can do what it likes in the ACT. It can over-ride any legislation passed by the ACT Legislative Assembly. This is because the Constitution gives the Commonwealth power to make laws with respect to the Territories. Continue reading “Feds have no power over same-sex unions”

The black ball usually applies to clubs. In many, a single black ball cast in a ballot would be enough to exclude a prospective new member.

The equivalent of the black ball is still around in unit (or strata) title legislation. Its effect came to light in the ACT Magistrates Court last week.

The legislation enables just one unit holder to veto proposals that might affect the common property. No reasons have to be given.

And in NSW the redevelopment plans of majorities in some old blocks of units are being blocked by single or small minorities. This week the NSW Property Council urged some changes.

The ACT case was about the request of a unit owner in O’Connor to install a split system air-conditioner. The unit owner’s daughter who has a chronic pain complaint lives in the unit. Even temperatures help her complaint. Some of the drugs she takes for her condition require her to avoid very cold or very hot conditions.

But the air-conditioner would have required a box to be placed outside, on the common property. Under the Unit Titles Act any use of any common property for the use of one unit holder requires an “unopposed” resolution. It means any single unit owner in the block can block the proposal.

Incidentally, in the ACT unit title can apply to single level developments with as few as two units. About 40,000 people live under unit title in the ACT.

The unit owner appealed to the Magistrates Court.

Magistrate John Burns held that the legislation did not allow for a review on the merits or on the reasonableness of the objection.

The only ground for reversing an opposed proposal is if “the proposal is in the objective best interests of all the unit holders”. It means that the court would have to find that the unit owner blocking the proposal had voted against their own best interests. On that reasoning it might require that the opposing unit holder was – at least in economic terms – off the planet. The magistrate did not hold that in this case.

Indeed. We will never know why the air-conditioning system was opposed. The opposing postal ballots were kept secret by the executive committee on the grounds of privacy. That, of course, meant it was not possible for the air-conditioning proponents to approach the opponents to persuade them to change their minds. So the case went to court with the proponents suing the body corporate.

Overall, the legislation tries to avoid a tyranny of the majority by requiring more than simple majorities for certain actions.

For example, unanimous resolutions (everyone actively agreeing) are required to sell the whole block as a single property. Unopposed resolutions (no-one actively disagreeing) are required for changes to the common property. Special resolutions (two-thirds majority) are required for large purchases of equipment or changes to rules on pets, plants and noise.

It may be that the legislation in the ACT and NSW has gone too far in protecting individual unit owners.

On the other hand, you could argue that an individual unit owner has property rights which should be enforced. One unit holder in a block of say 20 might like the old architecture, the local amenity and simple not want to move. Why should they be forced to sell to a developer just because the other 19 want to make a buck?

Why should a unit holder surrender the use of even a square metre of common property for an air-conditioning unit? That was the entitlement they paid for. No-one is obliged to be kind or generous. They might even have an environmental objection to air-conditioning. But bear in mind it could have been a proposal for a rain-water tank or solar panel.

That said, the unit title legislation must attempt balance between competing interests and enable people to live in harmony – given that they often are living literally on top of each other.

It should encourage more negotiation. Court cases have to be paid for by all unit owners.

The black ball may longer be appropriate, especially in larger blocks where one voter is a very small minority. A two-thirds or three-quarters vote might be better, or even a sliding scale depending on the number of units in a block.

Even some of those English gentlemen’s clubs required more than one black ball to oust a prospective member one the total voting reached a certain number.

And in corporations law, from which unit title developed, someone obtaining 90 per cent of the shares can compulsorily force the holder or holders of the remaining 10 per cent to sell.

The economic argument is that it benefits society as a whole for land to put to most efficient use, so the wishes of one person holding out against redevelopment should give way.

In any event, last week’s ACT case and the NSW experience reveals defects in the legislation. It has not taken care of someone holding out against the demolition of old, badly designed, energy-inefficient blocks nor the situation where some unit holders want to install new technology – and it could be solar hot water, photovoltaic cells or rain-water tanks as equally as air-conditioning.

At present one unit holder can cast the black ball.