Former Law Council president Arthur Moses saw promotion of the rule of law in Asia as one of the LCA's priorities.. He obviously did not think that there was any problem in Australia, or in NSW, where he was oncePresident of the NSW Bar.
The High Court's unanimous decision in the matter of Pell v The Queen was decided on a very simple issue; that a person cannot be convicted of a crime unless his guilt is proven beyond a reasonable doubt.
The High Court heard an appeal from a decision of a three man panel of the Supreme Court Of Australia that included the Chief Justice of Victoria Anne Ferguson. The Chief Justice and one other judge found against Pell ,so it was their decision that the High Court overturned, on a basic tenet of the law that is drummed into law students in their first year.
That a Chief Justice can be found to have made such a basic error is not a matter that can be ignored by especially foreign investors, who up until now, have been able to assume that Australia is a safe place in which to invest for the rule of law is guarded by a
highly skilled and impartial judiciary.
Instead the matter of George Pell has exposed a system where the influential can use court processes to defy the rule of law.It is hard to believe that the Victorian Court Of Appeal was incompetent and it does seem as if the Court had decided that it could do as it pleased for the High Court was not likely to overturn a jury's finding. The Court did so with the knowledge of the many deficiencies in the prosecution's case and seemed in fact to condone the errors. The errors were described comprehensively by the dissenting judge in the case Mark Weinberg,but the majority did not care. The fact that the dissenting judgement comprised two thirds of the written judgement did not seem to bother the majority.
All this matters to foreign investors who expect that there will be conflict with the local partners. In Australia that risk was once assumed to be mitigated by a highly skilled and professional judiciary, but clearly that can no longer assumed. Indeed, one senior lawyer who now sits as a defamation judge, Judith Gibson, recently commented:
"We can't have enormously expensive litigation driving people to have to sell their homes or go bankrupt.
"That's not a system of law that is going to attract admiration and respect from other countries or large companies wanting to do business in Australia."
The problem of errant judges is further complicated by a tendency among Australia's judges to use their positions to further their personal agendas. A recent example in which a large coal project was rejected saw the judge involved, Brian Preston, ignore the basic rules of causation. That Preston is an "Expert Group" member of a climate change advocacy group did not seem to bother Australian organisations charged with ensuring the integrity of the judicial system.
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To Be Read With
Law Council Australia, NSW Law Soc & NSW Bar should learn from & stop lecturing Asia's lawyers: High Court's Pell decision, defamation decisions suggest that Australia's judicial system is in need of urgent reform
April 06, 2020
by Ganesh Sahathevan
The High Court Of Australia decided 7-0 that the majority of the Supreme Court Of Victoria misjudged the matter of George Cardinal Pell. In doing so the High Court took the unprecedented step of assessing the conduct of the jury in the initial case, thus judging that the most senior judges in Victoria failed to get their basics right.
Elsewhere in the country defamation law reform is being pursued because judges and lawyers seem to have gone off the rails with regards defamation awards to the point where on senior defamation judge, Judith Gibson was driven to state:
In Australia on the other hand Law Council Australia, and in particular the NSW Bar Association and NSW Law Society have remained silent, and instead focused their energies on lecturing Malaysian and other lawyers on the shortcomings of their judicial systems:
Will Australia's barristers boycott legal work in Malaysia in protest of the perceived lack of independence it its judiciary?
Law Council Australia can help remove Minshen Zhu''s cover that adds to his capacity to defy Australian security: That would be better than Arthur Moses SC lecturing HK lawyers to stand-up to China
The Law Society NSW, NSW Bar, the NSW Law Society and other state law and bar associations have much to do here in order to stop the rot. The High Court's decision in the matter of George Cardinal Pell makes that abundantly clear.
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did not think that there was any problem in Australia, or in NSW, where he was oncePresident of the NSW Bar.
The High Court Of Australia decided 7-0 that the majority of the Supreme Court Of Victoria misjudged the matter of George Cardinal Pell. In doing so the High Court took the unprecedented step of assessing the conduct of the jury in the initial case, thus judging that the most senior judges in Victoria failed to get their basics right.
Elsewhere in the country defamation law reform is being pursued because judges and lawyers seem to have gone off the rails with regards defamation awards to the point where on senior defamation judge, Judith Gibson was driven to state:
"We can't have enormously expensive litigation driving people to have to sell their homes or go bankrupt.
"That's not a system of law that is going to attract admiration and respect from other countries or large companies wanting to do business in Australia."
Judge Gibson is calling on her profession to be more courageous and agitate for legal reform.
"If we don't affect changes, we are going to have a significant loss of faith in the courts as the significant provider of justice, and that is a matter of great concern."
Faced with a similar situation with regards defamation laws Malaysia's Bar Council actively pursued errant judges, lawyers and litigants. More recently the Bar Council has challenged the appointment of a former chief justice.
In Australia on the other hand Law Council Australia, and in particular the NSW Bar Association and NSW Law Society have remained silent, and instead focused their energies on lecturing Malaysian and other lawyers on the shortcomings of their judicial systems:
Will Australia's barristers boycott legal work in Malaysia in protest of the perceived lack of independence it its judiciary?
Law Council Australia can help remove Minshen Zhu''s cover that adds to his capacity to defy Australian security: That would be better than Arthur Moses SC lecturing HK lawyers to stand-up to China
The Law Society NSW, NSW Bar, the NSW Law Society and other state law and bar associations have much to do here in order to stop the rot. The High Court's decision in the matter of George Cardinal Pell makes that abundantly clear.
END
NOTE
In 2000 and 2001 the NSW Supreme Court's decision in the matter Carlovers & Ors V Sahathevan gave lawyers in Malaysia useful ammunition in their fight against a judiciary that had abused defamation laws in that country. By 2020 however the Chief Justice NSW Tom Bathurst,as chairman of the NSW LPAB has not only re-written the facts of the Carlovers case, but has also re-interpreted the decision as if it were in favour of the plaintiff Vincent Tan, who was found by a Malaysian Royal Commission to have interfered with the judiciary.
See Also
SEE on the Department Of Justice NSW website
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