It seems to me that the problems which have arisen arise from faulty execution as much as anything.

I do not accept the ideological approach of the
Association that the turf of judicial appointments must be defended
from the “infidels” at every opportunity.
However, Vice-President Martin Daubney could have pursued that
line with much more grace and offended nobody in his address to the
swearing-in of Justice Ann Lyons.

His speech (and he is an excellent speech maker) could have
acknowledged, fully and with much grace, the qualities,
proven track record and important skill set of Justice Lyons. (He did none of
this except for what read as a very patronising reference to her being married
to a barrister for 31 years and having raised four children). Having made these
acknowledgements, Martin would have offended no-one by saying: “However,
notwithstanding your acknowledged great personal qualities and skills, the Bar
remains of the view that the judiciary is best served by being appointed from
among those who have developed their skills and personal qualities in the cut
and thrust of ‘on your feet advocacy’ and, generally speaking, those people are
only constituted by practising barristers”.

He could have concluded
by saying, as he did that, notwithstanding any views held by the Bar on the
proper approach to judicial appointments, you, as a member of this court, will
receive the full support of the Bar.

I also thought that
Peter Lyons’s letter, beautifully
constructed as it was, fell into error when he referred to Martin’s speech. He
could have simply said that he disagreed with the content of the speech and
that, in an analogous circumstance, he would have placed more emphasis on the
qualities of the particular appointment while continuing to state the Bar’s
position and that, while such speeches were always difficult and it was
important to express, fearlessly, the position of the Bar on matters such as
judicial appointments, it is also very important to maintain respect for the
institution of the courts.

As for the politics and
the implications, I do not think they run very deep. I keep very clear of Bar
Committee politics but this appears to me like a palace revolt. Peter has,
through an unfortunate chapter of accidents, been placed apart from those people
with whom he would normally agree, and they have decided to cling tight such
that he loses. (The personal trauma for all involved is pretty high but that is
of little public importance.)

There will be a
perception that the fact Justice Lyons is a woman was an unstated aspect of
her “lack of suitability” and this perception will be held both within and
outside the Bar and the legal profession. I would be surprised if women’s
groups did not say something. There will be a feeling that the Bar has, again,
chosen to assert its independence and its guarding of the flame of justice in a
particularly ugly way. (While the Bar does contribute to debates concerning
issues of broader justice (its work on submissions concerning the sedition laws
was very commendable), many will feel that its visible contribution to broader
debates always has an element of self interest. The Bar would retort that the
media are only ever interested in bunfights when they report its actions.) While
this perception will be damaging for the profession and, especially, the Bar, it
will not impact on the numbers within the Bar

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.


Peter Fray
Editor-in-chief of Crikey