Page 3182 - Week 10 - Wednesday, 24 August 2005

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indicated it had those choices. He had three choices and he very much took the wrong one.

As we all know, there was then an appeal to the Supreme Court. We might quibble about how much it cost or did not cost, but what it did do was delay, for some 10 months, the actual coronial process, and it turned out to be, in the end, a futile appeal. The full bench of the Supreme Court, the three judges, went through and rebutted page after page of transcript. They go for some 67 pages, from about page 20, the various counts in relation to apprehended bias. No matter how the attorney might try to tart that one up and justify it, it must have been a rude shock to him that the court took the view it did and pretty well substantially rebutted the government’s argument. Now it is back in court. Now we wait to see what will happen with the coronial inquest.

I have mentioned the concern of the public, the victims and, specifically, the legal profession, who do know something about the separation of powers. Last Friday, when talking to newly admitted practitioners, in an unprecedented step the Chief Justice of the ACT specifically in his four-page speech referred to the problems with the separation of powers and the concerns that he had.

They might not be the same concerns expressed by various legal practitioners, the opposition or members of the public in terms of a government appealing against itself when it finds that the going is getting a bit tough and it might end up with a bit of egg on its face. There are concerns enough, when a government appears to be going against its own coroner, that it might be trying to nobble the coroner. But when the Chief Justice weighs in to the argument specifically in respect of the separation of powers, albeit on another tack, I think that is a very real cause for concern, too.

I have been around Canberra for a long time. Chief justices do sometimes say things to newly admitted practitioners. Chief Justice Miles was very keen for a new Supreme Court building and would often put that into his speech welcoming new practitioners. But here we have a four-page address from Chief Justice Terry Higgins. Chief Justice Higgins refers to the number of graduates from ANU, University of Canberra, James Cook, et cetera, and then, starting at the bottom of page 1, says:

Congratulations on being admitted into this fine court, the Supreme Court of the Australian Capital Territory, and one of the institutions of justice that society would be much the poorer without. It does seem, however, that the importance of the doctrines of the separation of powers and the independence of the judiciary are under threat.

He goes on to say:

Indeed, as my brother Crispin, sister Bennett and I commented upon in our recent judgement in relation to allegations of bias by Coroner Doogan—

He goes on to quote paragraphs 90 and 91 of the transcript of the Full Court’s judgment. I will read out some of the relevant parts; I will not read the lot. I will table a copy of the speech, but members can refer to the judgment. Justice Higgins quoted from the decision of the Full Court. It states that there:

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