Lawyers take line honours in Queen's Birthday list

Michael Pelly

Jun 14, 2018 – 11.00pm

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Lawyers were well represented in this week's Queen's Birthday honours, with 11 making the list.

Catherine Branson, the former Federal Court judge and Human Rights commissioner fared best with the top gong, the companion of the order of Australia (AC). Professor Robin Creyke of Australian National University received an AO.

On the bulkier, but no-less-worthy, list of AMs were nine lawyers – five of them judges.

John Hatzistergos of the NSW District court was among those awarded Queen's Birthday honours. Michele Mossop

It being wise to mention them all, we shall do so: John Hatzistergos of the NSW District Court, Queensland-based Federal Circuit Court judge Josephine Willis, NSW magistrate Michael Holmes, recently retired Queensland District Court judge Stuart Durward and Queensland Supreme Court judge Martin Daubney.

Hearsay was delighted to see Daubney there, because it provides the opportunity to recall his finest moment. No, it wasn't when he told former Chief Justice Tim Carmody – on behalf of the entire Supreme Court – that he was a dud and should step down. It was his handling of foul-mouthed murder suspect David Allan Baker in 2012. It's worth Googling, but here are some choice bits.

Baker: Stick your f---ing trial up your ass.

Daubney: That won't be happening to me.

Baker: I don't know what you're f---in' talking about, lard arse ...

Justice: Thank you for that submission, in which case I order ...

Queensland Supreme court judge Martin Daubney deftly handled a foul-mouthed murder suspect in 2012.

Baker: Well, you can f---in' order what you like.

Justice: ... that Ms R ...

Baker: Order me a f---in' pizza while you're at it.

Daubney thanked the embarrassed counsel: "I was actually called much worse things on the rugby paddock you know."

Bret Walker, who gave the 2018 Gough Whitlam Oration, made a plea for less secrecy. Penny Bradfield

Curtain drawn on Nauru

The High Court drew the curtain on a 40-year association with Nauru when it heard the last appeals from the tiny Pacific nation this week.

The three migration cases continued a recent run of appeals involving "Pacific Solution" detainees, so we suspect the Immigration Minister won't be too upset when the court adjourns on Friday.

Nauru has decided to establish its own appeals court, but some have questioned the timing around its withdrawal last December from a 1976 treaty with Australia that allowed appeals to the High Court.

There were six cases until 2017 and only one appeal involving a planning matter was upheld. However, in 2017 eight appeals were heard and all were allowed. All but one were migration cases involving detainees sent to Nauru by Australia.

The other was by three political demonstrators against the increase in their sentences. The High Court said the Nauru appeal judges had failed to give any reason for overturning the trial judge and increasing jail terms of three and six months to 14 months and 22 months.

The republic has fared better in 2018. In four migration cases decided last month, the High Court found in Nauru's favour.

What happens to these cases in the future has some worried, given there is still no sign of an appeals court in Nauru. At least the three political demonstrators, who were planning another High Court appeal, are out on bail until it is established.

'Cuckoo in the nest'

One of the nation's busiest barristers, Bret Walker SC, didn't miss when he gave the 2018 Gough Whitlam Oration in Sydney last week.

Walker, the former National Security Monitor who is now conducting the Murray-Darling Basin royal commission, spoke on "The Information that Democracy Needs".

His talk covered government legal advice, ministers' and MPs' appointments, political donations – which he would forbid except through the Electoral Commission – and investor-state dispute settlement clauses.

Walker reckons that "in relation to government secrets, registered data and even official procedures such as in courts, the privacy of individuals has become the cuckoo in the nest, so far as the information that democracy needs is concerned …"

"There is a linguistic and substantive misfit in too great a concern for the privacy of public servants," he said.

One interesting suggestion concerned agencies such as the Independent Commission Against Corruption: "Perhaps, they might be permitted, with safeguards, to brief directors of public prosecutions in the same way as investigating police do. Perhaps, they might be able directly to commit persons against whom they make adverse findings for trial, as if they were a grand jury in olden times or a magistrate today."

He let fly at investor-state dispute settlement clauses in trade treaties, under which "the lawmaking of our Parliament and the judgments of our courts may be effectively nullified, or worse still punished".

"They are just another, if more breathtaking, example of the patronising belief by some persons in Canberra that they not only know better than we do, but that it is better that we do not know enough to question them."

He's pretty good in court, too.