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Beasley, Richard --- "Editorial: Lawyers do hold a hose" [2021] PrecedentAULA 36; (2021) 165 Precedent 2

LAWYERS DO HOLD A HOSE

By Richard Beasley SC

Fires, floods, and government overreach. Volcanic eruptions. The destruction of sites sacred to Aboriginal and Torres Strait Islander Australians, sanctioned by racist laws. The articles published in this edition of Precedent go beyond the technical, and are a reminder of the importance of the legal profession as a guardian of the rule of law.

Greg McIntyre SC analyses the demolition of the caves at Juukan Gorge in 2020. Whether blasting apart a site that evidenced continuous human occupation and culture for at least 46,000 years should be considered a mere application of poor planning law, or an exposure of the weaknesses of the Western Australian legislative framework relating to mine approvals, probably doesn’t matter. The process that allowed this atrocity to occur can also be viewed as a moral failure. It is of some comfort that legislative reform is in the works to ensure that such an act cannot happen again; however, that the destruction of a site of such irreplaceable archaeological significance could happen in the first place should embarrass those beyond Rio Tinto.

Min Guo examines the lawfulness – or otherwise – of the China and India ‘travel bans’ introduced by the Commonwealth Executive Government (not Parliament) in response to the COVID-19 pandemic. We all no doubt wish to remain safe from COVID-19. Why our country cannot succeed in facilitating that without banning our own citizens from returning home – as it did with the India ban – warrants as much examination as the lawfulness of the bans themselves. Guo notes that the constitutional limitations on executive and legislative power in Australia, and the body of public law that has developed, especially over the last 50 years, should be brakes preventing our Government (particularly its executive branch) from doing as it pleases.

Dr Michael Eburn raises concerns about the new s123AA of the Defence Act 1903 (Cth), which provides (in part) that Australian Defence Force (ADF) personnel will not be subject to civil liability in the performance of their duties if called upon to assist during a crisis such as a bushfire. While this might seem reasonable, the new provision also provides that those personnel will not be subject to any criminal liability for acts done while performing their duties. Dr Eburn’s reasonable concern is that this amounts to a protection against liability for what would otherwise be deliberate and unlawful actions. It seems difficult to understand why the legislation needs to go this far. Still, when climate change inevitably brings about more bushfires, at least we can be comforted that the ADF will actually hold a hose.

Rita Yousef discusses the White Island disaster against the backdrop of a persuasive argument that New Zealand’s no-fault compensation scheme – in contrast to a tort-based adversarial system for redressing negligence – may have facilitated a lack of accountability by those who should be responsible for managing risks to prevent harm.

Tim Tobin SC, Andrew Fraatz and Irina Lubomirska provide technical analyses of pertinent issues that relate to large-scale tort litigation, but also highlight the advantages, both to justice and individuals, of class action accountability.

Stepping away (at least initially) from the courtroom, Darren Fittler and Elizabeth Lathlean provide a case study of the unintended pitfalls of comedian Celeste Barber’s fundraising campaign following the Black Summer bushfires. The beneficiary category of the donated funds was somewhat narrower than the public – and Barber – first understood.

Findley Hipkin provides a reminder of the broad range of vital services that lawyers – such as those in NSW Legal Aid’s Disaster Response Legal Service – provide to Australians when their communities have been devastated by natural disasters.

Finally, Romaine Abraham discusses the issue of solicitors managing their clients’ exposure to barristers’ fees. This is undoubtedly important, although our local experience remains that only a large, global law firm of solicitors, and not any barrister, has achieved a 24.3-hour billing day.^[1]

This is a timely and outstanding edition of Precedent.

Richard Beasley SC was called to the NSW Bar in 1997. He was Senior Counsel Assisting in both the Special Commission of Inquiry into the Ruby Princess and the Royal Commission into the Murray Darling Basin Plan. His book Dead in the Water (2021) covers the environmental catastrophe occurring in the Murray-Darling.

^[1] R Beasley, Hell Has Harbour Views, Simon and Schuster Australia, 2018, 11.