Injunction against Law Society dropped … Feast of St Ignatius proceeds uninterrupted … Taxpayers subsidising VicBar’s portrait collection … Opinions on High attracts tetchy comments … Top End is hyper-normalised … Down with Darwin … Goings On with Theodora 

Earlier this month Coralie Kenny raced to the Supreme Court and got an ex parte interim injunction against the council of the society to prevent it moving to sack her from the executive. 

Two members of council had moved for a special meeting to chop her as junior vice, with a vote by secret ballot. 

The injunction was supposed to be back in court today (Monday, July 31) but late last week Kenny withdrew. 

She had been unsuccessfully seeking the reasons behind the move to sack her. 

In an email to members of council on Friday (July 28) Kenny said she was discontinuing her application because she had been unsuccessful in finding the reasons why she should be removed from the society’s inner sanctum. 

The injunction hearing on Monday was cancelled, which must be a relief to half the judges who had been looking forward to an uninterrupted celebration of the Feast of St Ignatius. 

There is nothing now to stop the council moving on the original resolution to remove the junior vice. Then again, there’s a council election in November and the issue is likely to be resolved then.

Earlier this year a portrait of Ken Hayne appeared at VicBar’s Peter O’Callaghan QC Gallery. 

Bill Henson, whose work has been known to inflame the prurient, produced as warm an image as possible of this complex person. 

Justice Michelle Gordon, the wife of the subject of the portrait, is the patron of the Peter O’Callaghan QC Gallery Ltd, which is now a charitable foundation and endorsed as a recipient of tax deductible gifts. 

The authorities decided it was a good idea to enclose a donation form for the gallery with the notifications for the annual bar subscription.  

The aim of the POCQCG is to pay “tribute to the enormous contributions of the bar’s champions and acts as a source of inspiration for future generations of barristers”. 

Some of VicBar’s finest have been scratching their heads trying to work out which of the charitable purposes under the Charities Act are met by the foundation.  

“Advancing culture” is the closest possible category, although as the donations form itself confesses the gallery is really all about glorification of ancient fossils and making the bar feel as though it is wallowing in a bath of cream – hardly a cultural advancement. 

As it is, there isn’t much wall space left at the POCQCG. Some of the dead codgers will have to be bumped to the basement to make way for more wall-worthy entrants. 

Stellar ornament of the bar David Jackson AM QC tossed off a spiky comment on the High Court blogsite run by Melbourne Law School – Opinions on High.  In return he attracted a small, but intense, volley of online smack-downs.

Earlier this month associate Prof Katy Barnett posted a piece about High Court cases dealing with building and construction rectifications. 

She referred to a report in The Age about the High Court building itself being rectified, requiring the judges to sit in Sydney, Brisbane and Melbourne while repair work proceeds in Canberra. 

There had been earlier rectifications to the brutalist structure by the lake. In 2013 about about 50,000 custom-make tiles imported from Italy to restore the forecourt were found to be the wrong size. 

The Age article added: 

“It was later revealed a court employee had made an unauthorised visit to the Italian factory with her boyfriend.”  

More details about the renos are here and the court website also has information about the building. 

An amended version of The Age story later was found on The Canberra Times website. 

Katy ended her Opinions on High post, saying: 

“It is to be hoped that the present works are completed successfully; in the meantime, those of us in other Eastern States will enjoy the opportunity to see the court when it comes to town.” 

Jacko fired off a rebuke: 

“I know that you have to publish regularly and I know that there is a shortage of news when the court is not sitting, but this article really plumbs the depths. Rubbish like this really cheapens an otherwise good and useful website.” 

He made it clear he was referring to the “triviality of the whole article”, not just the reference to the newspaper coverage. 

Adrian Camarast then posted his riposte: 

“Show some manners Mr Jackson.

You may not have found the article to your particular liking, which is fine, but that doesn’t mean that the article is rubbish or that it cheapens the website. Even if you think it does, there are better ways to express your views. As a powerful and influential member of the profession you should be alive to the harm that you can cause if you do not speak and write with moderation.” 

Anthony Parsons, another contributor, weighed-in with further online rectification: 

“Sir, I would not have thought it necessary to point out to counsel of your standing that, if one has nothing constructive or productive to submit, it is better to remain silent.

Notwithstanding that you may believe otherwise, there is nothing constructive or productive in your comment. 

Yes, this post by Ms Barnett is lighter than others, perhaps in the absence of anything more substantial to say as you suggest. So what? It’s a blog – one can take its posts, or leave them. You could – indeed, should – have simply left this one.”

There was silence from Jacko – but the online stormlet can be found here. 

Last month Tennant Creek magistrate “Judge” Greg Borchers emerged as one of the unattractive faces of youth justice in the Northern Territory. 

The transcript of the case became notorious as it revealed Borchers being aggressive and insensitive in a sentencing hearing involving a 13-year-old Aboriginal boy who pleaded guilty to property damage. 

In January, the child’s mother was murdered. His father is being investigated for the crime while on remand in the Alice Springs Correctional Centre.

In reference to the murder, Borchers acknowledged that there had been “a significant breakdown” in the child’s family, but accused him of having “taken advantage of it”.

Along with a couple of other youngsters the offender broke into an ANZ branch, a Chinese restaurant and a motel. 

His lawyer, Dev Bhutani from the Central Australian Aboriginal Legal Aid Service (CAALAS), sought to contextualise the offending.

“He’s lacking the support, having gone through a very traumatic incident, he’s obviously turning for support in other places and looking for guidance and acceptance by some of his people who attend his school and … [those] he is residing with.”

Borchers was unable to understand the connection between trauma in the child’s life and his offending.

“Call … anyone you like and get that person to tell me how grief results in breaking into banks.”

Borchers addressed the boy directly before remanding him into custody.

“You’re not going back into the community. The community can’t afford you.

You’re rampaging around the streets at night and no one cares. I haven’t heard from the police that anyone rang the police, or contacted the police to say that you were missing after midnight, because no one cares. 

It’s quite clear that you and your family are not going to pick up the damages for what you’ve caused. And, presumably, and I infer this, you’ve got no understanding of that. You don’t know what a first world economy is. You don’t know the difference between – you don’t know where money comes from other than the government gives it out.” 

As the transcript shows Borchers bullied Bhutani on the question of who was going to pay for the property damage: 

Dr Cathy Kezelman, President of the Blue Knot Foundation, which supports survivors of childhood trauma, said the judge’s comments risk traumatising the child. 

“The comments reportedly made by Judge Greg Borchers not only show a lack of compassion but a complete lack of understanding about the way profound trauma can affect anyone, especially a child.

His lack of empathy on any human measure is diabolical.”

Doc Kezelman called for training for all legal and judicial officers so they can intervene in escalating cycles of disruption and reactivity, rather than fuelling them. 

“To say that a child has taken advantage of the alleged violent loss of one parent and the betrayal of another is outrageous, ignorant and enormously damaging. Judge Borchers is effectively punishing the child for his situation.” 

CAALAS has complained to NT Attorney-General, Natasha Fyles, and the Chief Judge of the NT Local Court. 

In 2015, Borchers was appointed to the board of the Mental Health Association of Central Australia, a not for profit provider of psychosocial support services, including bereavement support. He no longer continues in that role.  

Buffalo Bruce QC tells me that territory barrister John Lawrence SC has had his pen out with a feature article in this month’s edition of the Land Rights News and writing a major presentation to Yarraside’s Castan Centre. 

Lawrence is the former principal lawyer at the North Australian Aboriginal Legal Aid Service, a former president of the NT bar ‘n’ grill and a former prez of the Criminal Law Association of the NT. 

For the past year he has been consumed by the workings of the Royal Commission into the Protection and Detention of Children in the NT, which has exposed chronic dysfunction in the territory’s youth justice system. 

Needless to say, we’re talking here about Aboriginal children, and a callous system that the royal commission’s interim report says leaves many of these youngsters more damaged then when they arrived in detention.   

All the relevant authorities, the legal guardians of the children, from the attorney general cum corrections minister John Elferink down, knew about the atrocities at the Don Dale Centre. As Lawrence puts it: 

“The individuals who make these decisions, knowingly and deliberately, have lost their way as far as being responsible, moral, decent human beings.” 

The royal commission has also exposed the fact that many judges and lawyers knowingly acquiesce in the territory’s system that despatches children with machine-like regularity into the maw of a punitive regime. 

Lawrence says that if these children were non-Indigenous, “such inhumanity would not be allowed to occur. In other words it’s racism.” 

He also reports that in the last week in June, when the Judge Borchers’ scandal  was gathering momentum, and while the royal commission was hearing evidence in the Supreme Court building about the systemic problems in the NT’s criminal justice system, the rest of the court building was empty.  

The criminal lawyers had decamped to Bali for the poolside biennial CLANT conference. 

Lawrence describes this is a situation of hyper-normalisation – a term from the final days of the Soviet era when everyone knew the system was failing but no-one could imagine any alternatives.  

Instead, everyone just pretended a failed system was the prefect way to proceed. 

Justice Lionel Murphy and chief NSW magistrate Clarrie Briese make for a very odd couple. 

Lionel was cultivating Clarrie to come to the rescue of his little mate, solicitor Morgan Ryan, charged with running an immigration racket. There were dinners and tours of the High Court and special tate à tates about the law of conspiracy. 

In return the High Court judge was arranging for the NSW government to introduce legislation to make the magistrates independent from the executive. 

However, it hasn’t been widely known that Clarrie is a devoted Presbyterian and, even more startling, a committed creationist. 

He’s pretty much guided by what the Bible says about God and the making of the world and everything in it – in six days flat. 

There is tons of stuff in old Australian Presbyterian magazines showing Briese’s devotion to the Book of Genesis. In the first of a three part series on creationism, Clarrie says: 

“In my judgement, the evidence for accepting Genesis 1 and 2 as narrative prose, to be understood in a straightforward and literal manner, far outweighs the suggested evidence for a contrary view.”  

In fact, he cites Murphy J in support of his argument: 

“I have noticed that apart from Genesis 1 and 2, the God of the Old Testament and Jesus in the New Testament continually demonstrate their power and control over the natural world by the use of miracles. God uses miracles throughout the history of the Bible as part of the way he works. We note that miracles take place instantly on command. 

In criminal law that kind of evidence is called ‘similar fact’ evidence. As the late Mr Justice Lionel Murphy of the High Court explained, ‘events may occur which constitute a sequence or pattern in which the only common factor is the accused. These may be such that as a matter of Euclidean proof or certainty, the accused is responsible, that is, the cause of the events … Such methods of reasoning are acceptable’. 

By this stage, Lionel’s ashes would be jumping up and down in their cask. Had his lawyers known about Clarrie’s strange beliefs they could have cross-examined him on possible bias to the judge based on his antipathy to humanist values. 

And having a creationist as the chief magistrate of NSW shows a special level of dottiness.