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FRIDAY, MAY 23, 2014 P31theaustralian.com.au/business

Crackdown on opportunistic class actions THE federal government is plan-ning a crackdown on plaintiff lawfirms that it says are launchingopportunistic class actions pri-marily for personal gain.

It will convene a high-poweredadvisory panel to examine con-flicts of interests and moral haz-ards between lawyers and thelitigation funding companies thatfinance most class actions.

The panel will be asked toexamine the entire litigationfunding industry, but will giveparticular attention to plaintifflawyers who run class actions andfinance those cases through theirown corporate vehicles.

Attorney-General GeorgeBrandis said he was worried thatthe current arrangements were“ripe for abuse”.

“The system is entirely unreg-ulated and it ought to be,” he said.

The decision to convene theadvisory panel comes soon afterthe Productivity Commission’sdraft report on access to justicecalled for licensing of litigationfunders because of the risk ofimproper financial and ethicalconduct.

Senator Brandis outlined hisplan during an interview with TheAustralian in which he also:• Indicated he wanted to movesome lawyers from the AustralianGovernment Solicitor’s office tothe Attorney-General’s Depart-ment as part of a plan to makethe department the government’sprimary source of legal advice (seeaccompanying report);• Revealed that his final recom-mendation for reforming section18C of the Racial DiscriminationAct is likely to go to cabinet withinweeks (see report on Page 32).

He said there was a place forclass actions in the legal system,however, opportunistic litigationagainst public companies had be-

come so common that it hadchanged the risk environment forbusiness.

“There may be occasions onwhich those class actions arewarranted, but too often they areused in an entrepreneurial way,”he said.

“They are conceived by entre-preneurial lawyers who seek outshareholders and they do itfor  profit. They don’t do it torepresent the interests of theclient. They do it for profit andI think that creates profound ethi-cal and moral problems.”

Senator Brandis said he had nocriticism of what he described as“genuine class actions” that werethe only way in which injuredplaintiffs could obtain justice.

“But there is all the differencein the world, in my view, betweenthat and opportunist litigation —particularly opportunist commer-cial litigation through the classaction vehicle,” he said.

“Let’s be under no illusions; thereason it is being promoted is toline the lawyers’ pockets.”

Panel members, who are yetto  be named, would consist ofeminent lawyers and others withexperience of the litigation fund-ing industry.

Their involvement comes soonafter research by John Emmerigand Michael Legg of internationallaw firm Jones Day found thatwhen population differences weretaken into account the number of

securities class actions threatenedand filed in Australia was close tothat of the US.

It also comes soon after theProductivity Commission’s draftreport favoured the introductionof US-style contingency fees —a  move that would triggermore  class actions, according toTricia Hobson and Gerry Pecht ofinternational firm Norton RoseFulbright.

While Senator Brandis said hefavoured regulation of the sector,he planned to examine the advis-ory panel’s findings before decid-ing what form that regulationshould take.

The Productivity Commis-sion’s draft report said litigationfunders should be licensed asproviders of financial products,subjected to explicit ethical stan-dards, and monitored by the Aus-tralian Securities & InvestmentsCommission and the courts.

Senator Brandis said someaspects of the industry werebeyond the purview of state lawsocieties and other aspects wereentirely regulated by ASIC.

“So I think what we need to dois identify those moral hazardsand conflicts of interest that existand how they ought to be dealtwith,” he said.

“That may well best be donethrough the profession develop-ing its own protocols or it maywell be that it is appropriate todeal with it by regulation.”

CHRIS MERRITTLEGAL AFFAIRS WRITER

ONLINE VIDEOThere are now very opportunistic

class actions being promoted – not out of any sense of vindication of the shareholders’ interests, or the plaintiffs’ interests, but merely in order to create a money-making scheme for the lawyersATTORNEY-GENERAL GEORGE BRANDIS

www.theaustralian.com.au/business/legal-affairs

Public advice: a one-stop shop

THE federal government is con-sidering a major overhaul of pub-lic sector legal services that wouldmake the Attorney-General’s De-partment its primary source oflegal advice.

If implemented, the planwould have significant implica-tions for the government’s pub-licly owned law firm, theAustralian Government Solicitor,as well as law offices in govern-ment departments and agenciesthat last year cost taxpayers$363.7 million.

Attorney-General GeorgeBrandis said he believed his de-partment should be the principallegal adviser to government andhe recognised that this wouldaffect other departments that pro-vide legal advice.

“Our overarching objective isto get the cost of legal advice togovernment down as far as poss-ible — consistent with protectingthe quality of the advice,” he said.

“I would like to see a greateropportunity for the private firmsto provide advice to government.

“Within government, I would

like to see a greater concentrationof the legal advice by governmentlawyers within the Attorney-General’s Department.”

In order to elevate his depart-ment’s role, he believed the focusof its operations needed tochange. “In recent years (it) hasbecome far too much a depart-ment whose focus is social policyrather than the provision of legaladvice,” he said.

“My view is that the pre-emi-nent function of the (department)should be to become the principallegal adviser to government.”

He said certain niche areas ofhis department, such as the Officeof International Law, were out-standing, but the government wasalso receiving legal advice from arange of other internal sources.

“There is advice that comes tothe government not from the de-partment but from the Solicitor-General and his staff, and thenthere is advice … from in-houselawyers within various depart-ments and agencies,” he said.

The Australian GovernmentSolicitor was also providing legaladvice.

The National Commission ofAudit has urged the government

to close the AGS and investigateselling its book of work — worthabout $100m last year in pro-fessional fees — to the private sec-tor. Senator Brandis said thegovernment had made no deci-sion on whether to get rid of theAGS but, consistent with his viewsabout his department’s role, hebelieved the advisory functions ofthe AGS “would be better placedwithin the department”.

The audit commission alsorecommended that the Office ofGeneral Counsel — which pro-vides advice on the core activitiesof government — should movefrom AGS to the Attorney-Gen-eral’s Department.

But Senator Brandis believedthe advisory functions that shouldbecome part of his departmentshould go beyond those units thatprovide advice on the core activi-ties of government.

He said he had been explicitabout the direction he favouredfor his department.

“That, I think, will have impli-cations for the other elements ofthe government which providelegal advice to government out-side the Attorney-General’s De-partment,” he said.

CHRIS MERRITT

Gleeson appointment a ‘no-brainer’

John Howard and Daryl Williams, below, were of one mind in tapping Murray Gleeson for the top judicial role

WHEN John Howard was elec-ted prime minister in 1996, heknew that within two years hewould have to appoint a new chiefjustice of the High Court. Thespotlight was soon on MurrayGleeson, then chief justice ofNSW.

They had been at universitytogether, but Howard only knewGleeson by reputation.

“I would keep hearing aboutMurray from people like Bob Elli-cott and Tom Hughes: Ellicott asa colleague and Hughes as a con-tinuing friend. And you wouldjust hear, and it was just accepted,that he was the — like the newBarwick.”

Sir Gerard Brennan had suc-ceeded Anthony Mason as chiefjustice of the High Court in 1995,but in May 1998 he would turn 70— the mandatory retirement agefor federal judges in Australia. Hisdeputy, Mary Gaudron, was notin the frame because of her deeproots in the Labor Party.

After the High Court ruled 4-3in 1996 that pastoral leases did notextinguish native title, deputy

prime minister Tim Fischer saidthe government would be verycareful about whom it chose to re-place Brennan: “I’m attracted tothe thought that it would be acapital-C Conservative lawyer/judge … someone who’s some-what conservative on the matterof judicial activism.”

The government’s first two ap-pointments made it clear the“capital C” criterion was in play.

In September 1997, DarylDawson — the lone dissenter inMabo — was replaced by KenHayne, a former commercial silkwho was on the Court of Appealin Victoria. In February 1998,Brisbane QC Ian Callinan joinedthe court in place of John Toohey.

Callinan had been a trenchantcritic of the High Court in theMason and Brennan years. In1994, his address to the conserva-tive Samuel Griffith Society —“An Over Mighty Court?” — re-ceived wide attention, in particu-lar for its criticism of “judicialactivism”.

Howard’s attorney-general,West Australian QC Daryl Wil-liams, had suggested the SouthAustralian Supreme Court judgeJohn von Doussa QC for the seatfilled by Callinan but was over-ruled in cabinet.

The PM and his attorney,though, were of one mind when itcame to the next chief justice.“Whenever I thought about it, itjust seemed to me a no-brainer

that we would make Gleesonchief justice of the High Court.”

In early 1998, Williams startedthe formal process of consul-tation. He wrote to all state gov-ernments, bar association and lawsocieties, then collated the namesand invited further comment.

Williams had known Gleesonfrom his days at the Bar and hadappeared against him in a con-tractual dispute that reached theHigh Court in 1984. “Murraymesmerised the trial judge, but wetook it on appeal and won.”

Williams said the next step hetook was “possibly unique” for anattorney-general.

He personally contacted thosewho were potentially interestedand arranged appointments withthem. One staff member alsoattended.

“I would say: ‘I want yourviews on who you think ought tobe considered and I want yourviews on those people.’ I wouldalso ask them, ‘Do you want to beconsidered?’ If they said yes Iwould say, ‘Okay, let’s do thisconsultation in two parts. One, wewill leave you out of it and you cantell me about other people, and

then I want you to tell me aboutyourself.’ I took notes and my staffmember took notes, but we saidthe notes would not be shown toanybody else.”

In 2013, Gleeson said thatwhen he agreed to see Williamshe had been under the impression— clearly mistaken — that theattorney-general was obliged toconsult him as chief justice of thelargest court in the country.

He declined to comment onwhat he told Williams, but said hewas opposed to any interviewprocess: “Beyond simply askingwhether someone is available, it isnever appropriate.”

This was the traditional viewand one preferred by Williams’ssuccessor as attorney-general,Philip Ruddock. The rumoursconcerning Williams’s approacheven forced Ruddock in 2005 todeny that he was interviewingprospective appointees.

Williams finalised a small listof candidates that included Jus-tice John Winneke, the presidentof the Victorian Court of Appealwho had conducted a royal com-mission into the Builders Labour-ers Federation.

Howard said the discussionwas very short. “Daryl Williamscame to see me to talk about it andhe said, ‘I think we ought to ap-point Murray Gleeson,’ and I said,‘I don’t think there’s any argu-ment.’ ”

Continued on Page 32

MICHAEL PELLY

THE extent of religious freedomin modern Australia will betested by the High Court after aChristian group last weeklaunched an appeal against alandmark Victorian court decis-ion which, for the first time, ele-vated anti-discrimination lawsover the right to religious free-dom.

The appeal will be closelywatched by human rights, re-ligious, academic and minoritygroups across the country, as itwill have wide-ranging ramifi-cations on the extent of re-ligious freedom in Australia andthe operation of religiously

motivated groups in the com-munity. Associate professor inlaw and religion at the Universi-ty of Newcastle Neil Foster wel-comed the appeal, warning thatwithout High Court clarificationof the issue, religious groups —which often provide care to themost vulnerable people in soci-ety — might be forced out of thecommunity.

“That will be bad, not just forreligious people, but also forthose vulnerable persons in ourcommunity who are cared for byreligious groups, often when oth-ers will not do so,” he said.

Describing the case, ChristianYouth Camps v Cobaw, as one ofthe most important law and re-ligion decisions handed down inAustralia in recent years, Associ-ate Professor Foster said theHigh Court needed to clarify theextent of religious freedom inAustralia and how those free-doms sat within the frameworkof an individual’s right to be freefrom discrimination.

“We should not be elevatingfreedom from discriminationabove all other human rights asthe most important,” he warned.

The original appeal decisionlast month by a majority fullbench of the Victorian Court ofAppeal narrowed religious rightsin the state after it ruled that acamp site run by Christian YouthCamps had breached anti-dis-crimination laws by refusing toallow a support group for same-sex youth to use the site.

Christian Youth Camp ar-gued that it did not discriminateagainst the group because of thesexual orientation of the individ-ual members but because thegroup was advocating homosex-ual behaviour, which was con-trary to its beliefs and doctrine.

It argued that under religiousexemptions in the state’s EqualOpportunity Act, it was withinits rights to discriminate againstsomething contrary to its beliefs.

But the court ruled that dis-criminating against homosexualbehaviour was the same as dis-criminating against individualhomosexuals, which is illegalunder the act.

Professor Foster said whilethe details of the Victorian Courtof Appeal decision involved ananti-discrimination spat be-tween a Christian group and a

Continued on Page 32

Appeal to clarify religious standingKATHERINE TOWERS

Chief Magistrate in line to be state’s top judge

THE   Chief Magistrate ofQueensland, Tim Carmody, hasemerged as the frontrunner to re-place Paul de Jersey as chief jus-tice when the state’s top judgebecomes governor in July.

Attorney-General Jarrod Blei-jie has told those he has been con-sulting that the former barrister isin contention for what would bean unprecedented elevation.

Mr Bleijie appointed JudgeCarmody as Chief Magistrate inSeptember last year.

He has been a favourite of theNewman government and is seenas an important ally in its hardlinestance on law and order issues.

Judge Carmody is also said tohave the support of the police.

In January, Judge Carmodydismayed senior judges and law-yers by defending the right of gov-ernment to pass new bikie lawsand impose stricter conditions onbail. In a speech at the SupremeCourt, with Mr Bleijie in the audi-ence, he said the separation ofpowers doctrine was “a two-waystreet’’.

“In return for the unfettered in-dependence to make decisions —regardless of whether others thinkthey are right or wrong — judgesmust not meddle in the adminis-tration of enacted laws by theexecutive and departments ofstate.”

A spokesman for Mr Bleijie

yesterday said the Attorney-Gen-eral had been consulting widelyon the replacement for Chief Jus-tice de Jersey and described thetalk around Judge Carmody as“speculation”.

An announcement is expected

by the middle of next month toallow the appointee to settle in be-fore Chief Justice De Jersey takesover from Penelope Wensley asgovernor when her term ends onJuly 29. Judge Carmody wassworn in as a member of the Dis-trict Court of Queensland and hispredecessor as chief magistrate,Brendan Butler, is now serving onthat court.

While it is not unusual for chiefmagistrates to be appointed to astate Supreme Court — DerekPrice in NSW is one example — itis believed no chief magistrate hasbeen elevated directly to a state’stop judicial position.

Judge Carmody joined the barin 1982. He was counsel assistingthe Fitzgerald inquiry into police

corruption and was Queensland’scrime commissioner from 1998 to2002 and then joined the FamilyCourt as a judge in 2003. Hestayed on the court for five years,after which he returned to privatepractice as a barrister.

Early last year, Mr Bleijie madehim head of Queensland’s ChildProtection Commission of In-quiry and praised his work in thatrole when announcing hisappointment as Chief Magistrate,saying: “Thanks to Mr Carmody’swork, the Newman governmentnow has a road map to makeQueensland the safest place toraise a child.

“His unique blend of practicaland legal experience made himthe ideal choice.”

MICHAEL PELLY

Court to weigh dubious evidence

FORENSIC experts hope theHigh Court will set new limits onthe use of questionable scientificevidence in courtrooms in twoupcoming cases.

In the first, Honeysett v TheQueen, the High Court has beenasked to consider whether “facemapping” or “body mapping”from CCTV footage constitutes“specialised knowledge” withinthe meaning of the NSW Evi-dence Act.

Anthony Charles Honeysett,an Aboriginal man, was accusedof being one of three men in-volved in an armed robbery of ahotel in Sydney’s northern beach-es in 2008.

At his trial, an anatomy pro-fessor testified there were eightcommon features between Hon-eysett and the offender in CCTVfootage.

The offender wore a pillowcaseor T-shirt over his head, a long-sleeved top and long pants.

There was also some DNA evi-dence linking the accused to thecrime, but he argued this was cir-cumstantial.

Gary Edmond, a legal pro-fessor at the University of NSW,said body mapping was one ofmany identification techniques— including those used to matchbite marks, ballistics, soil, voicesand foot, shoe and tyre prints —that had never been validated.

He said such techniques wereroutinely used in courts in ways

that no scientific study could sup-port. “The specialised knowledgein this case is the interpretation ofimages,” he said.

“Yes, he’s a highly qualifiedprofessor of anatomy, but thequestion is, how do you interpretlow-quality CCTV images wherethe person’s wearing a disguise?We don’t know whether he can doit or how well he can do it.”

He said such techniques couldbe evaluated, but that had nothappened.

“We’ve been allowing thesepeople in and we get the sameproblem in case after case,” hesaid.

Professor Edmond said re-search on unfamiliar face-match-ing had shown it to be very

Continued on Page 32

NICOLA BERKOVIC

This extract from Michael Pelly’s new book, Murray Gleeson: The Smiler, explains the unusual circumstances that led to the appointment of the High Court chief justice

Online video: About the book www.theaustralian.com.au/business/legal-affairs

Neil Foster

Tim Carmody

32 LEGAL AFFAIRS THE AUSTRALIAN, FRIDAY, MAY 23, 2014theaustralian.com.au/business

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This could be a better platform for Brandis

WHEN it comes to free speech, George Brandis seems to have undertaken a crash course in subtlety.

Gone is the early rhetoric about people having a right to be bigots. In a free society, that principle is indeed fundamental.

But launching a reform campaign with such a confronting idea was a gift for those posturing authoritarians who believe parliament, the courts, lawyers and the human rights commission should all be mobilised — at taxpayers’ expense — to prevent hurt feelings.

The Attorney-General’s focustoday is on far more attractive concepts — intellectual freedom and the right to express an opinion.

In a few weeks, it will be known whether this is simply another way of expressing the ideas that are part of his original draft reforms for the “Bolt provisions” of the Racial Discrimination Act. It could be.

There is also a possibility thatthis is much more than a change in rhetoric. It might be the first sign of a change in the underlying legal substance of the reform plan for section 18C of the RDA.

It is worth noting that Brandis,in the accompanying article, is at pains to point out that there is a big difference between the expression of an opinion — whichhe believes is worthy of legal protection — and mere racial abuse.

If that approach became law,the test for liability in a rewritten section 18C would take on critical importance.

If the test remained unchanged, the law would remain skewed in favour of those who would claim that an opinion is really mere abuse.

That would solve nothing.Brandis might feel obliged to

give the final reform plan a sharper focus on protecting opinions in order to show good faith with the constructive feedback he has received from some of the major stakeholders.

Those groups, led by the Jewish community, have a legitimate interest in this body of law and it is only right that their views should be taken seriously. To date, there is no evidence to the contrary.

This might help with the coming fight in the Senate over this scheme, but the only way it can safely be done is to ensure that the test for liability relies on community standards.

The law at the moment requires judges to see things from the perspective of a reasonable representative of those who complain. The perspective of the other side — as well as that of the broader community — is not part of the test.

After being done over by sucha rigged system, does anyone blame Andrew Bolt for being a little grumpy?

His articles about light-skinned Aborigines were not perfect. They contained errors. But those errors are insignificant compared with the outrageous bias in section 18C.

The key to eliminating that bias — and restoring public confidence in this body of law — is for Brandis and the cabinet to ensure that the rewritten law is anchored in community standards.

After some initial divisions, this part of the government’s draftplan is now supported by a consensus within the Human Rights Commission — so long as all the circumstances of the case are taken into account.

That extra condition is only fair. It would ensure that judges would take account of the impact on both sides as well as the standards of the community.

That’s an enormous improvement on the current law, which seems designed for a nation of tribes, each deserving different treatment.

The headline on last week’s article about barrister John Hyde Page indicated incorrectly that he is a senior counsel.

PREJUDICE

CHRIS MERRITT

Race act could protect opinions

TREVOR PINDER

Columnist Andrew Bolt outside the Federal Court after it was ruled community standards should not be used to determine if his articles were unlawful

WITHIN weeks, federal cabinetwill consider a final recommen-dation for reforming section 18C ofthe Racial Discrimination Act thatwill seek to prevent the censorshipof opinions on the issue of race.

This goal has been nominatedby Attorney-General GeorgeBrandis as the core element of thegovernment’s planned changesthat must be protected to make thescheme work.

However, he also hinted thathis final recommendation to cabi-net might reflect some of the ideasoutlined in submissions from lead-ing groups on how to reform therestrictions on speech containedin section 18C.

“We did not engage in a periodof both private and public consul-tation without intending to listento what people had to say to us,”Senator Brandis said.

But when asked if this meant hewas open to horse-trading or com-promise, Senator Brandis said thatwas not a phrase he would accept.

The government has receivedmore than 5300 submissions in re-sponse to an exposure draft thatwould remove provisions in theRacial Discrimination Act that im-pose civil liability for speech on thesubject of race that is found to of-fend, insult and humiliate.

These “hurt feelings” offenceswould be replaced by a law thattargets the incitement of racialhatred and speech that causes fearof physical harm.

In an interview with The Aus-tralian, Senator Brandis drew a dis-tinction between the expression ofopinion and other statements onthe subject of race that he impliedwere not as worthy of protection.

He said the core goal of the re-form process was the removal ofcensorship of opinions.

“I say opinions because not allutterances are opinions,” he said.

“A racist gibe is not an ex-pression of opinion. The incite-ment of racial violence is not anexpression of an opinion. The useof threatening language thatmight intimidate is not an ex-pression of opinion.

“So although we speak of free-dom of speech, what we are reallyconcerned to protect is intellectualfreedom — freedom of opinion.

“That is the core concept.”

He said many of the submis-sions he had received on the re-form of section 18C were similar topetitions — “serial incantations ofthe same point of view by a varietyof people”.

“Others are more substantialand weighty like the HumanRights Commission itself, the LawCouncil of Australia and variousbodies that take an interest in thislike Liberty Victoria,” he said.

The submission of the HumanRights Commission accepts thatthe test for liability in section 18Cshould rely on community stan-dards — not the standards of anyparticular group.

The submission, which wasdrawn up with the agreement ofHuman Rights CommissionerTim Wilson and Race Discrimina-tion Commissioner Tim Sout-phommasane, accepts thatliability should be determined ac-cording to community standards“in all the circumstances”.

This is broadly in line with theapproach outlined in the govern-ment’s exposure draft. The ex-posure draft says liability shouldbe determined “by the standards ofan ordinary reasonable member ofthe Australian community, not thestandards of any particular groupwithin the Australian commun-

ity”. If enacted, this communitystandards test would overturn theway section 18C was applied by theFederal Court in 2011 when it ruledthat community standards shouldnot be used to determine if articlesby columnist Andrew Bolt wereunlawful.

In the Bolt case, Judge Morde-cai Bromberg found that section18C obliged him to judge Bolt’sarticles from the perspective of areasonable representative of thegroup that had launched proceed-ings against Bolt.

Senator Brandis said the gov-ernment never had any doubt thatit would be difficult to reform sec-

tion 18C because people who caredabout this issue cared about itpassionately.

“But in the end, even peoplewho find themselves on oppositesides of the argument largely wantthe same thing — they do wantanti-vilification laws and they dowant appropriate protections forfreedom of speech.

“My critique of section 18C isthat it achieves neither of those ob-jects well.”

He said the reform processcould “possibly” have been easierhad the debate not been seenthrough the prism of the Bolt case.

“But I don’t think we can escape

from the fact that this issue slipped(from) the law school commonrooms and emerged in the RSLclubs because of the Andrew Boltcase. I think there has been toomuch talk about Andrew Bolt as ifthis was just about one case oreven one person.

“It’s about a much broaderprinciple and the principle is this:should government be passinglaws telling people what they areallowed to think and what opin-ions they are allowed to express?My answer is ‘absolutely no’,” Sen-ator Brandis said. He hopes to takehis final recommendation to cabi-net “in coming weeks”.

CHRIS MERRITT

Continued from Page 31

homosexual support group, theramifications from the decisionwere widespread and had a“major detrimental impact” onreligious groups that provide ser-vices to the community. “(TheCourt of Appeal decision) sendsthe wrong message about re-

ligious groups not being able tooperate in accordance with theirreligious beliefs,” Professor Fos-ter said. “It cannot be a good thingto tell these groups that if theywant to operate in the commun-ity, they effectively have to adopta non-religious perspective,which denies the very reason fortheir existence.

Appeal to clarify extent of religious freedom in Australia

Gleeson appointment as chief a ‘no-brainer’Continued from Page 31

It was the same when cabinetmet on Monday, March 30, 1998. “I don’t remember anybody objecting,’’ said Howard.

“We had lengthy discussionsabout the others (who were appointed to the High Court), but not about this. No argument at all.”

Williams and Howard departed from the usual practice of the attorney-general informing the chosen person. “Daryl said to me, ‘Well, you know Murray well, you probably want to ring him.’ And I made the call,” said Howard.

It was 7pm and Gleeson wasat home with his wife, Robyn.

“I rang him and said, ‘Wouldyou be interested in being chief justice of the High Court?’ And he said, ‘Yes, thank you very much’.”

Howard also called governor-general Bill Deane, an old friend of Gleeson’s.

He needed to get Deane’s nodto make the announcement in advance of Executive Council

approval. “I rang him and said, ‘I’m sure you’ll be happy to know — delighted to know — that we’re going to appoint Murray’ and he said, ‘That’s terrific, that’s the right appointment.’ I remember him saying, ‘Do you mind if I ring Murray?’ And I said, ‘Certainly not. I’d assumed you’d want to’.”

Australia was on its 25th prime minister and 22nd governor-general but Gleeson would be only the 11th chief justice. The reaction might have been overwhelmingly positive in the media, but Gleeson’s wife said she “wasn’t terribly delighted”. “I know that he kind of thought, ‘I’ve had enough of being chief justice of NSW’, and I had had enough of it. My only encounter with the High Court was in Melbourne (just after they were married in 1963) and I thought I had never come across such rude people.”

Murray Gleeson, The Smiler is published by the Federation Press.

High Court asked to weigh dubious evidenceContinued from Page 31

error-prone, and those with ex-perience, such as anatomists andpassport officers, performed nobetter than ordinary people.

He said courts needed to readthe need for reliability into spec-ialised knowledge, as they haddone in other jurisdictions.

“The danger is that the evi-dence will be misunderstood bythe jury and that may lead towrongful convictions,” he said.

In the second case, Fitzgerald vThe Queen, the High Court hasbeen asked to decide whether a

mixed sample of DNA from twoor three people, taken from whatappeared to be a blood stain on adidgeridoo, was enough on itsown to convict the accused.

Daniel Glenn Fitzgerald wasconvicted of murder and causingaggravated harm, as one of alarger group involved in a familybrawl that left one man dead andone with brain injuries. Otherthan his DNA being found on thedidgeridoo in the home, he wasnot linked to the group, and theprosecution did not proffer amotive for him being involved.

Charles Sturt University pro-

fessor Jane Goodman-Delahuntysaid the problem was that scien-tific evidence of a DNA match,even if strong, was not proof anaccused was at a crime scene.

She said, in Fitzgerald, thequestion was whether the merefact of a DNA match was undulypersuasive to the jury and over-whelmed other considerationsabout potential innocent expla-nations for the match.

“Juries are usually cautiousabout relying on circumstantialevidence, and prefer direct evi-dence,” she said. “In the caseof  forensic scientific evidence,

and DNA profiles in particular,research has shown that they donot show the same degree of cau-tion and may infer that evidenceof a match establishes that theaccused was at the crime sceneand committed the crime.”

She said jury research showedjurors could be “blinded byscience” — and mere evidence ofa DNA match could increasetheir tendency to convict.

Independent DNA consultantBrian McDonald said he believedcourts should not use DNA toconvict someone with a total lackof corroborating evidence.

“The narrow reading of the ex-emptions given by the majoritydecision in the Victorian Court ofAppeal will, if applied in otherareas, end up squeezing religious-ly motivated groups out of thepublic sphere altogether.’’

In the grounds for appeal,Christian Youth Camps arguesthat the finding that its discrimin-

ation against a group advocatinghomosexual behaviour was akinto discriminating against an indi-vidual homosexual, was wrong.

It says it didn’t discriminateagainst the actions of the supportgroup or the individuals involvedbut discriminated against the“syllabus” and teaching to begiven at the camp”.

A MAJOR report by RMIT Uni-versity’s Centre for InnovativeJustice has called for a new sys-tem of “restorative justice” meet-ings between victims of sexualassault and the perpetrators ofthese offences.

The report, which was fundedby a $300,000 grant from the fed-eral government, calls for confer-ences that could give rise to arange of outcomes — includingan apology, financial compen-sation, a commitment by theoffender to enter a treatment pro-gram and an agreement aboutfuture contact or disclosure tofamily members.

Rob Hulls, who is the centre’sdirector, said that the proposalaimed to address a serious gap inthe criminal justice system be-cause most victims of sexualassault do not report the offenceto police and, if they did, theyoften failed to achieve a success-ful conviction in court.

“There are a range of innov-ative justice practices that couldsit alongside the conventionalsystem that would make the jus-tice system more accessible, flex-ible and responsive for victims ofsexual assault,” said Adjunct Pro-fessor Hulls, who is a formerattorney-general of Victoria.

The report’s proposals include:• A statutory framework for res-torative justice conferencing toensure appropriate safeguardsand quality;• The establishment of assess-ment panels made up of forensic,legal and community experts, todetermine the suitability of casesfor conferencing; and• Oversight by police, the prose-cution and the judiciary.

Victims of sex assault ‘should meet offenders’

CHRIS MERRITT

Rob Hulls explains the plan at www.theaustralian.com.au/business/legal-affairsThe report is available at rmit.edu.au/innovativejustice

Gourmet tour de France

Reader OfferTravelrite International Pty Ltd. (Licence number 30858) is the tour organiser. Neither News Limited, nor any of its subsidiaries nor any of

their newspapers, have any involvement in the tour, and have no liability of any kind to any person in relation to the tour.

For more information call Travelrite International on 1800 630 343

or email balwyn@travelrite.com.au

September 7 to 25, 2014

Explore monuments, markets, chateaux, vineyards and hand-picked

restaurants from Paris, Burgundy, the French Alps and on to Provence with

Gabriel as your guide.

Return fights, accommodation, special meals, private coach travel,

sightseeing and entry fees all included.

Join much-loved chef Gabriel Gate on his

ALMOST SOLD OUT