The Vatican Rag

Forget Washington, forget London - the Holy See is the gem in the diplomatic crown ... Einfeld finds a way back into our hearts ... ADT rebukes CCA over bullied barrister ... Murky outline of judicial complaints regime for federal judges 

Promise of guided tours by McCarthy QC

QUITE soon the Sistine Chapel and other Vatican hotspots will be choked with gawking barristers from the Sydney bar. 

In late August John McCarthy QC takes up the plum post of Australian ambassador to the Holy See. Invitations were generously issued to piles of well lubricated attendees at the recent bench and bar din-dins. 

Calls to the new ambassador's residence in Rome and guided tours of the eye-watering vulgarity of Papal HQ are now essential elements of a sweep through Italy. 

Even your correspondent has been invited. 

McCarthy is the seventh member of the Sydney Bar 'n' Grill to take up a diplomatic posting. 

1. Sir George Reid, High Commissioner in London, 1913-1916. 
2. Bill Dignam, Minister in Dublin, 1946-1949. 
3. Sir Percy Spender, Minister in Washington in 1953. 
4. Sir Howard Beale, Ambassador to the US, 1958-1963. 
5. Gough Whitlam, Ambassador to UNESCO, Paris, 1983-1986. 
6. John Spender, Ambassador to France, 1996-1999. 
7. John McCarthy, Ambassador to the Holy See, 2012 … 

A Sydney Morning Herald editorial, April 26, remarked that McCarthy's appointment was prematurely announced in the media only two weeks after his pal Bob Carr became foreign minister. 

The editorial went onto say that news of the Sydney barrister's move to the holy of holies, "involved unwinding an existing appointment initiated by Carr's predecessor, Kevin Rudd".  

This is vehemently denied. 

The Herald went on, unkindly, to say that the post is a wasteful adornment. 

Until Tim Fischer's appointment in 2008, Canberra had no resident, permanent ambassador to the Holy See. It was a job done by another of our ambassadors in Europe. 

"The post appears to be a sinecure, an unnecessary embellishment to a diplomatic service that is already struggling to do its tasks." 

All this is about to change, as bus loads from the bar descend on McCarthy and transform this boondoggle into one of the most demanding positions on the meet and greet circuit. 

*   *   *

The Mensch: slings and arrows

MARCUS Einfeld stepped from Silverwater nick on March 19 last year after serving a two year sentence for perjury arising from a court case over a $77 speeding fine. 

His departure from prison was accompanied by valiant efforts at rewriting history. 

He's been pretty quite since, but sooner-or-later an opportunity had to emerge that would give the former national living treasure a moment in the sun and a useful rebranding opportunity. 

Sure enough it was the emergence of reports about the desperate conditions of the Aboriginal people at Toomelah, in the far north of NSW. 

Minefield, as human rights Czar, had written a report 23 years ago on conditions at Toomelah. 

Earlier this month the media reported that despite some early efforts to improve conditions, life was still intolerably bad for the Aboriginal community in the area. 

Einfeld told SMH readers on May 9 that for the last seven years, a group of Jewish students has been visiting the town two or three times a year, at their own expense. 

"The group, Derech Eretz, play with the children and introduce them to innovative ways to amuse and occupy themselves ... 

I have heard hundreds of Aborigines unzip their minds and give expression to their innermost feelings. Like every human being, every one of them is different and has different issues, aspirations and hopes. Every one of them dares to have plans." 

The prose may be a touch florid, but as a footstep on the comeback trail - it's a start.   

*   *   *

IT'S not often those lower down the food chain have a crack at the behaviour of their betters, so it was refreshing to see the minnows of the NSW Administrative Appeals Tribunal take a swipe at the Court of Criminal Appeal. 

The CCA referred Newcastle barrister David Fitzgibbon to the ADT, saying his submissions on behalf of a client who appealed a conviction in the Land and Environment Court were deficient and "did not identify the evidence to which objection would be taken". 

Thin Roger Giles, Grove and Hormones Harrison sat on the CCA at the time. The primary judgment was written by Thin Roger and it got stuck into poor old Fitzgibbon because his written and oral submissions were all over the shop. 

Fitzgibbon acted for a Mr Hardt, who was found guilty of permitting his land to be used as an unlawful waste dump. 

The ADT said the barrister suffered from ADHD. He also had bowel cancer and as a result is required to wear a colostomy bag. His 30-year-old daughter suffered oxygen deprivation at birth and is intellectually disabled and a schizophrenic. 

Fitz also had a recurring urinary infection between August to December 2007. At the time of preparing written submissions for the CCA his wife developed a heart condition, which ultimately required surgery in 2008.  

The barrister's treating psychiatrist, Dr Slowiaczek, said his patient experienced a "temporary impairment of brain functioning" while oral submissions were being made in the appeal. This was brought on by "the rebound effect" of his Ritalin medication. 

Fitz admitted his written submissions were not good. The ADT said: 

"We do not accept that the failure to meet the appropriate standard is excused by the barrister's distressing personal circumstances at the relevant time." 

Consequently, there was a finding of unsatisfactory professional conduct. 

When it came to the complaint about his oral submissions it was a different story and the ADT made no adverse finding. 

The client, Mr Hardt, said he felt physically ill as a result of the "verbal battering" his barrister received from "a judge of the Court of Criminal Appeal". 

The ADT accepted that evidence. The lay member of the ADT panel, former academic and now newspaper scribbler Ross Fitzgerald, said that the interruptions from the CCA appeared to him to be "very rude". 

The tribunal found: 

"It is clear that there were a great number of interruptions from the bench and that the barrister was not always given an opportunity to develop his train of thought or complete his answers to a judicial question." 

So after battering him with rudeness and interruptions the CCA dobbed-in the hapless brief, leaving the misery-guts at the the bar 'n' grill to send him to the Bureau de Spank. 

*   *   *

THE Anglo-Australasian Lawyers Association held one of its breakfast chinwags at The Australian Club in Macquarie Street earlier this month. 

The topic was The Constitution v The States? Federalism a century after federation and the speaker was solicitor general Michael Sexton. 

I'm told it was packed to the rafters. 

However, on the application form the Anglo-Australasians offered a limited range of honorifics for attendees: "Sir/Justice/Judge/Mr/Mrs/Miss/Ms". 

No professors, doctors, or muftis allowed.  

*   *   *

POLLY Peck tells me the new regime for handling complaints against federal judges is grinding its way through parliament. 

The Courts Legislation Amendment (Judicial Complaints) Bill and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill currently are in the tender hands of the House of Reps Standing Committee on Social Policy and Legal Affairs, which expects to report in June. 

So far wallahs from the AG's Department and the Law Council have given evidence.  

The Bills will also go to the Senate Committee on Legal and Constitutional Affairs.  

The explanatory memorandum to Judicial Complaints Bill provides a Barry Jones-type flow chart explaining how it will work. 

The Parliamentary Commissions legislation will allow for serious complaints against federal judges, including High Court ones, to be filtered by a three person commission, whose presiding officer will be ... wait for it ... a judge - either from a state Supreme Court or a retired Commonwealth judge. 

You can see the fingerprints of the judiciary all over this complaints scheme. The process will be shrouded in secrecy.

The commissions will be exempted from FOI legislation and the commissioners can keep whatever they like in the secret cupboard - much like the three wise men who investigated Lionel Murphy, and whose findings are still under wraps. 

The complaints process is a nods and winks scheme presided over by heads of jurisdiction. 

No sunlight, no disinfectant.