From the President

Ethical Enquiries — Ethics Counsellors

From time-to-time, and usually with some urgency, BAQ members require counsel and advice on ethical issues which confront them in practice.

At present, when such issues arise, the member may:

• ask the Bar Council for a ruling.
• contact the President or Vice-President for advice.
• undertake informal enquiry of a senior barrister, usually a fellow chamber member.

Each of these is a useful course but harbours difficulty. A ruling must await a forthcoming Council meeting with consequent delay. The President and Vice-President are members of the Bar Council which may later have to consider the same issue at Council level. The informal enquiry will always be helpful but does not afford much protection of the enquiring member.

Most issues can be resolved by simple enquiry and response from a senior practitioner. Some issues are more complex, whether they involve prospective or past conduct.

With such matters in mind, with the assistance of the Vice-President, I have put together a group of senior barristers to assist members with ethical enquiries. On your behalf I thank each of them for accepting such position.

The “ethics counsellors” are:

Lister Harrison QC

David North SC

Danny Gore QC

John Baulch SC

Robert Gotterson QC

Michael Stewart SC

Walter Sofronoff QC SG

Peter Callaghan SC

Michael Byrne QC

Michael Kent SC

Don Fraser QC

Jim Henry SC

For future reference these names and this notice will be posted on the BAQ website.

The list will change from time-to-time to share the burden among the senior bar.

Members having ethical enquiries ought contact one of the above senior barristers.

Necessarily there are limitations upon the assistance a counsellor may afford:

• he or she is not acting as legal advisor.
• an enquiring member ought ensure (and if necessary be in a position later to prove) candour in issue fact disclosure to the counsellor.
• a counsellor may advise a member to seek legal advice, particularly if the relevant conduct has occurred and is likely to attract the attention of the Legal Services Commission. This advice ought be followed.
• according with a counsellor’s advice will not excuse or condone the conduct in question but such accord would be a salient consideration should there be a subsequent LSC complaint.
• it is preferable to access a counsellor before, not following, questionable ethical conduct by the member.
• a member barrister must bear ultimate responsibility for his or her conduct. There is always the option of seeking a Bar Council ruling or legal advice.

BAQ Strategic Plan 2009/2010

On 14 January 2010, the Strategic Plan 2009/2010 was released and has been re-published in full in this edition.

Retrospective Legislation

On 1 March 2010, I forwarded a letter to the Premier of Queensland, Ms Anna Bligh, in relation to the Valuation of Land and Other Legislation Amendment Bill 2010. The body of that letter is reproduced in full below.

LETTER TO THE PREMIER OF QUEENSLAND, MS ANNA BLIGH

“Dear Premier 

Re:  Retrospective Legislation 

The Valuation of Land and Other Legislation Amendment Bill 2010 introduces 

significant changes to the way the value of land is determined for the assessing of 

local authority rates and land tax.  

While the substance of the proposed amendments going to the basis for valuation is a 

matter of legitimate political debate, there can be no doubt that many land owners will 

be adversely impacted financially.  But there is no justification for making the 

amendments operative retrospectively from 2002. 

It is this retrospective character of the proposed amendments that prompts me to write 

to you. 

A fair legal system has at its core that the law on any given day should govern the 

actions of citizens.   Those citizens are entitled to organise their affairs (domestic and 

commercial) on the statute law as enacted from time-to-time.  

There is well enshrined principle that legislation when introduced should address 

future, not past, conduct.  The basis of this principle against retrospectivity „is no 

more than simple fairness, which ought to be the basis of every legal rule‟ (L’Office 

Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 

at 525, cited in Bennion on Statutory Interpretation, 5th ed at 316). 

If land tax has been assessed and paid by land owners on the basis of erroneous State 

valuations, there is no just basis for retrospectively taking away their entitlement to 

money they should not have paid in the first place.  The money was not the property 

of the State, although it has had the benefit of it.  The owners have been 

commensurately deprived of its use. If the State was wrong to take the money in the 

first place, then as a basic tenet of honesty and fair dealing, it should effect immediate 

refund. 

Nothing in the Explanatory Memorandum to the Bill, nor in the public comments of 

the Minister responsible, would justify the amendments being given retrospective 

effect. 

It is a particular shame that such legislation should be proposed at a time when your 

Government has declared its support for the principle of good government by causing 

the Constitution (Preamble) Amendment Act 2010 to be passed, the first paragraph of 

which proclaims the aim of fostering the good government of Queensland.  

Retrospective legislation – “heads I win, tails you lose!” – is the antithesis of good 

government.  

The Bar Association asks you to abandon the retrospective elements of the Bill.  

Richard Douglas S.C. 

President”  

Richard Douglas SC President