12 July 2024
The Hon. Mark Dreyfus KC MPCommonwealth Attorney-GeneralHouse of RepresentativesParliament HouseCANBERRA ACT 2600
The Hon. Dr Jim Chalmers MPTreasurerHouse of RepresentativesParliament HouseCanberra ACT 2600
The Hon. Stephen Jones MPAssistant TreasurerHouse of RepresentativesParliament HouseCanberra ACT 2600
By email
Dear Attorney-General, Treasurer and Assistant Treasurer,
I refer to my letter to each of you of 10 May 2024. In the now more than two months that have elapsed, I have not received a reply from any of you.
I wish to reiterate the deep concern of the Bar nationally in relation to the capricious and unfair manner in which this proposed additional tax on the remuneration of Commonwealth and Territory judges would operate, if enacted in the terms that have been outlined.
In particular, I wish to emphasise the following.
Lack of consultation with the ABA as an essential stakeholder
As I stated in my earlier letter, the Australian Bar overwhelmingly supplies judges for Commonwealth, State and Territory courts. To impose an additional tax on Commonwealth and Territory judges without consultation with the peak body whose members will continue to go on to be judges into the future demonstrates, respectfully, a fundamental failure to consult.
The proposed legislation is corrosive of judicial independence and the separation of powers
It is not just an article of faith in Australia and democracies like it where the rule of law prevails, but also a constitutional imperative by section 72(iii) of the Constitution, that the remuneration of judges cannot be diminished after appointment. It is one of the institutional safeguards of our democratic system and a meaningful expression of the way that the citizen appears in court against the state on an equal footing.
The judicial pension is undoubtedly an important component of overall judicial remuneration: Austin v The Commonwealth (2003) 215 CLR 185. Consequently, such an additional tax on the remuneration of Commonwealth and Territory judges is apt to produce a constitutional challenge that would be necessarily invidious.
In my opinion, the proposed legislation would have the most corrosive institutional impact on a court that I have witnessed in my 32 years as a barrister, far beyond any controversy about the selection of individual judges.
Disproportionate taxation of female judges, as females
The Hon. Susan Crennan AC KC has written, in a way which I do not understand to be controversial, that the practical consequence of the proposed tax would be to disproportionately tax female judges (past and present) over male judges, because in the present circumstances there are a disproportionately larger number of females over males who have had very long judicial careers. That is, frankly, disrespectful of a cohort of women who were willing to make the sacrifice to leave early other valuable careers in the law to become judges, and within the space of a generation, to take female judicial officers from a rare exception to an unremarkable incident of orthodox judicial appointments.
Beyond that practical consequence, given the longer life expectancy of women, literally, the tax is prone to apply to female judges to a greater extent than male judges, because they are female.
No Parliament in 2024, respectfully, should countenance such an outcome.
An affront to the commitment to public service of judges of Commonwealth and Territory courts.
Overwhelmingly, judges make large personal and financial sacrifices to undertake the demanding responsibility of fairly and justly sorting out disputes between those who cannot sort the disputes out for themselves. It is an affront to that commitment to public service to then impose a special tax, on some judges, that operates only because they are Commonwealth and Territory judges.
Disruption of our federated judiciary
The remuneration of a Justice in the Federal Court of Australia is, practically, the benchmark for the remuneration for judges of superior courts of record in the Commonwealth, States and Territories, and in inferior courts in the States. That is an important component to the seamless federation Australia has enjoyed. The law, if passed, must necessarily disrupt that on a practical level.
I again request prompt and proper consultation with my members so the above concerns, and others, can be fully canvassed. This matter is of such importance to my members that I intend to provide a copy of this letter to them.
I look forward to hearing from you.
Yours sincerely,Peter Dunning KCPresident
Letter from the ABA regarding changes to judicial remuneration – 10 May 2024
See the following related article from Hearsay Issue 96 (June 2024).Better Targeted Superannuation Concessions or Targeting Judicial Independence?
In this 2021 paper Peter Dunning KC dives deep into the art, and ethics, of discrediting witnesses in cross-examination and otherwise.
The Ethics of Discrediting Witnesses
The Honourable David Francis Jackson AM KC died on 15 May 2023, just after his 82nd Birthday. David’s death was marked by public announcements on that day by the Bar Association of Queensland,[1] the Australian Bar Association,[2] the New South Wales Bar Association[3] and the Chief Justice of New South Wales.[4] Many others followed. On 25 May 2023, a Memorial Mass was held at St Mary’s Cathedral, Sydney, at which the eulogy was given by the Honourable Chief Justice Susan Kiefel AC of the High Court of Australia. In every sense, other than name, the filled cathedral on that day wore the appearance of a state funeral.
David was born on 8 May 1941 in Ipswich. David’s father died when he was a boy, and his family then moved to Brisbane. He won a scholarship to Marist College, Ashgrove, where he completed his schooling and excelled academically. He then completed a degree in Law at the University of Queensland, again excelling academically, including being presented the Ross Anderson Memorial Prize for constitutional law.
David served in the Reserves in the Australian Intelligence Corps between 1959 and 1971, retiring with the rank of Major. David would have started a career in the Australian Army but for his eyesight. On 29 May 1970 David married Monica Letheren.
In 1963 David became the Associate to the then Justice Gibbs of the Supreme Court of Queensland, later Sir Harry Gibbs, Chief Justice of the High Court of Australia. The years of 1963 and 1964 working for Justice Gibbs were to make a lasting impression upon him. This was not only due to David’s experience as Clerk to the National Hotel Inquiry that Justice Gibbs chaired over that time, but due to the impression Gibbs, as both a human and a judge, made on David, reflected in the obituary David wrote for Sir Harry Gibbs in 2005.[5]
David commenced in practice at the bar in Brisbane in 1964. As a junior David appeared many times with Charlie Sheahan QC, later Justice Sheahan of the Supreme Court of Queensland,[6] in the considerable constitutional litigation that occurred during the Whitlam government. David practiced as a silk at the Brisbane Bar from 1976 until 1985. At various times between 1969 and 1980, David was a member of the committee of the Bar Association of Queensland and served as Vice President in 1982 and 1983.
It was a remarkable time for the Brisbane Bar. David, along with Ian Callinan QC,[7] Geoff Davies QC,[8] Tony Fitzgerald QC,[9] Bruce McPherson QC,[10] Bill Pincus QC[11] and Cedric Hampson QC[12] were all routinely appearing against each other. It was a purple patch for the Bar in Queensland. Among them were the most exceptional advocates, competitors and friends.
On 15 November 1985, David was appointed a Justice of the Federal Court of Australia, sitting in Sydney. Consequently David, Monica and their three daughters moved to Sydney. David remained on the Federal Court until resigning on 26 May 1987 to return to the Bar in Sydney. From that time onwards David developed an extraordinary appellate practice. He was the leader of the Seventh Floor of Wentworth Chambers between 2002 and 2014, and a founding member and founding head of New Chambers between 2014 and 2016, where he remained until his death.
In 2004 David chaired the New South Wales Special Commission of Inquiry into the Medical Research and Compensation Foundation established by James Hardie in relation to asbestos related injuries suffered by persons who had used James Hardie products. His counsel assisting was John Sheahan SC, who had taken silk in Queensland and later moved to the Sydney Bar. It was the model of the conduct of a commission of inquiry. The report David prepared was a watershed moment for societal expectations around the prudential funding of longtail products liability.
David was made a Member of the Order of Australia in the Australia Day Honour’s List in 2007. His citation read “for service to the legal profession as a leading practitioner in the fields of constitutional and appellate law, as a contributor to the development of professional organisations associated with the law, and through roles in the area of professional education.”
However, David was best known for his court craft. He was a preeminent silk of nearly half a century, and the finest constitutional and High Court barrister of a generation, indeed arguably since Federation. David’s appearances in the High Court of Australia were far too numerous to try and essay. Suffice it is to say that he appeared in many, many, cases across all areas of the law, including criminal,[13] commercial,[14] common law,[15] family,[16] estates,[17] constitutional,[18] industrial,[19] taxation[20], defamation and implied freedom[21] cases. Chief Justice Bell aptly captured it when he observed that David was “ … in truth a generalist. His specialty was advocacy, the art of persuasion.”
David was an extraordinary advocate, never more at home than when standing at a lectern in full flight. It was a privilege to have had the opportunity to have worked either directly with him or against him. Those who did were better judges and barristers for it. Many more did not have the occasion of dealing directly with David. Nonetheless, their professional lives were touched for the better. David was a barrister of absolute propriety and very generous to other barristers. When on those relatively rare occasions a junior was sent to argue a case against David, universally the junior came away with a lasting memory of the courtesy and warmth of the dealings with the great man – although rarely a gold medal.
David’s impact was multi-generational on the advocates in Queensland he led. Starting with Susan Kiefel, Paul de Jersey, John Muir, Richard Chesterman, Pat Keane and Margaret White to name just a handful. More were to follow such as Danny Gore, Debbie Mullins, John Sheahan, Thomas Bradley and Madelaine Luchich.
Whilst outside Queensland David was affectionately known as ‘Jacko’, as a consequence of his namesake David JS Jackson QC,[22] for more than a generation he carried the appellation of ‘Big Jacko’ in Queensland.
Sir Winston Churchill once observed “battles are won by slaughter and manoeuvre. The greater the general, the more he contributes in manoeuvre, the less he demands in slaughter.” By that calculus David was the field marshal of the Australian Bar.
Whilst David left Queensland nearly four decades ago his enduring affection for the State and the legal profession in it never waned. He maintained very close contacts with Queensland. He was a quiet voice of calm and wisdom in any dark days.
David was encouraging to barristers young and old, a loyal friend to many, extraordinarily generous and had a fine sense of humour. He had a long-time commitment to the Order of Malta[23], including as President between 1984 and 1987. There was never a true sense of how generous David was with his time and his money, because he invariably exercised his generosity discreetly and often with anonymity. He truly knew, and practiced, what pro bono was.
David lived as he worked. He was a loving and devoted husband to Monica, his wife of more than fifty years, father to their daughters, Catherine, Dominique and Louise, and grandfather of four grandchildren.
David was a lifelong practicing Roman Catholic. On 15 May 2023, supported by his family, and as he viewed it in accordance with his faith, he passed quietly into God’s care.
David left an enduring legacy on the development of the law in Australia and the art of being a barrister by his lived example that the finest advocacy is the product of skill, industry, propriety and courtesy in equal measure.
David was the barrister the rest of us measure ourselves by. He was a legend in his own lifetime.
Vale Big Jacko.
[1] https://qldbar.asn.au/general-news/2201/content-search-results/jackson%20.
[2] https://austbar.asn.au/news-media/vale-the-hon-d-f-jackson-am-kc.
[3] https://nswbar.asn.au/the-bar-association/publications/inbrief/view/21dc6bda18d1036ec37b45178e15eb05.
[4] https://qldbar.asn.au/baq/v1/viewDocument?documentId=2317.
[5] (2005) 79 ALJ 651.
[6] Father of John Sheahan KC and Greg Sheahan.
[7] A President of the BAQ and ABA, later Justice Callinan of the High Court of Australia.
[8] A President of the BAQ and ABA, later Solicitor-General for Queensland and an inaugural member of the Queensland Court of Appeal.
[9] Later a Justice of the Federal Court of Australia, Chairman of the Fitzgerald Inquiry into Police Corruption in Queensland, Inaugural President of the Queensland Court of Appeal and a Justice of Appeal of the Supreme Court of New South Wales.
[10] Later Senior Puisne Judge and an inaugural member of the Queensland Court of Appeal.
[11] A President of the BAQ, later a Justice of the Federal Court of Australia and an inaugural member of the Queensland Court of Appeal.
[12] A President of the BAQ, twice.
[13] R v Elliot (1996) 185 CLR 250.
[14] Palmer v Ayres (2017) 259 CLR 478; National Australia Bank Ltd v Bond Brewing Holdings Pty Ltd (1990) 169 CLR 271.
[15] Brodie v Singleton Shire Council (2001) 206 CLR 512
[16] CDJ v VAJ (No. 2) (1998) 197 CLR 172.
[17] Wentworth v Wentworth (1992) 66 ALJR 792.
[18] Williams v The Commonwealth (No.2) (2014) 252 CLR 416.
[19] Public Service Association and Professional Officers’ Association Amalgamated NSW v Director of Public Employment (2012) 250 CLR 343.
[20] SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51
[21] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[22] Later Justice Jackson of the Supreme Court of Queensland.
[23] The Order’s role is focused on providing humanitarian assistance and assisting with international humanitarian relations.
