Stonewalling 101: the legal system’s dirty little secret

Andrew L. Urban

Under the constitutional doctrine of the separation of powers, parliaments make laws, the executive administers and enforces laws, and the judiciary adjudicates disputes about the law. The judiciary is thus insulated from outside oversight; that’s a good thing … until it isn’t. Because if the judiciary is beyond oversight (other than its own) it can fall into error, and simply stonewall if challenged. 

The ACT’s current Sofronoff inquiry into the handling of the aborted Bruce Lehrmann trial by agencies of the Territory is a rare example of elements of the legal system being held to account.

This inquiry should set an example for Australia’s Attorneys General, judges and senior barristers to embrace the cleansing effect of open inquiries into the dark recesses of criminal trial procedures, unsafe convictions and other failures of the criminal justice system. Who will hold erring practitioners to account?

A few examples:

1     Tasmania’s Attorney General, inundated over several years with demands from the public and well informed (mostly interstate) legal professionals, has consistently rebuffed calls for an independent commission of inquiry into the controversial 2010 murder conviction of Sue Neill-Fraser. Stonewalling 101.


2     The report at the centre of South Australia’s scandalous miscarriage of justice in the case of Henry Keogh was released more than 13 years after it was delivered by then Solicitor General Chris Kourakis (now Chief Justice) to then Acting Attorney General Kevin Foley. The report shows that Kourakis had made a disturbing, incorrect decision, which resulted in Keogh’s continued incarceration. Analysing the report, Flinders University legal academic Dr Bob Moles concludes Chief Justice Kourakis’ position is untenable, but there have been no repercussions. Stonewalling 101.

3     A man, without a single other legal blemish, convicted of historical sexual abuse of a girl in his family, 22 years before, believes he could prove his innocence if the NSW Attorney General advised the Governor to act on his 90 page petition and referred his case for a judicial review – as was done for Kathleen Folbigg, convicted of murdering her children. But he has been refused and given no reason in response to several requests. Stonewalling 101.

4     Successive Federal Attorneys General (both Coalition and Labour) have been presented with a practical plan (recognising the multiple jurisdictions of Australia) to establish a national Criminal Cases Review Commission (CCRC), similar to ones in the UK and most recently Canada and New Zealand, to ensure Australians have the right to a fair trial and effective appeal mechanisms essential to maintain confidence in our criminal justice system. All such representations have been ignored. Stonewalling 101.

The CCRC as envisaged would be open to applicants who have had their first appeal rejected – wrongly, in their view. There are several reasons why we advocate for a CCRC: for one thing, Australians in different jurisdictions are living under differing levels of rights to appeal. A CCRC would unify conditions. Another reason is that a CCRC is a more equitable way of applicants challenging appeals, avoiding the need to approach the High Court. Not only is the High Court route costly and slow, it is also more restrictive for applicants. Other benefits include the distancing of further appeals from the proximity of the conviction jurisdiction, where subtle / unconscious bias factors may influence decisions.

“….no jurisdiction has yet resolved to establish a Review Commission. What is it about our country that always sees us limping behind [UK, NZ and Canada] where justice is at stake, whereas we can move with astonishing speed to diminish civil liberties, increase official powers and raise levels of incarceration, with no parliamentarian raising a murmur,” writes former High Court judge The Hon Michael Kirby AC CMG in Criminal Law Journal, discussing right of appeal provisions.


Examples such as these raise the question: does the legal system operate outside the rules of accountability that provide some measure of assurance to the community that the special privileges enjoyed by the legal profession are warranted?





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4 Responses to Stonewalling 101: the legal system’s dirty little secret

  1. Contessa Antonia Scrivanich de Ivanovich says:

    Mr. Justice Michael Kirby is my hero because as well as a Defender of Human Rights and of Legal Reform, he is also a great Defender of Private Property . At a Canberra dinner many years ago I had the privilege of sitting next to him. Sadly, I do not know of any judge today of his integrity and erudition !

  2. Don Wakeling says:

    The Sth Australian scandal of the Keough case demands a public Commission of Inquiry . The decade long withholding of exculpatory medical evidence by , either the present Chief Justice of S A, when, and after he was that State’s Solr General, acting alone, or, with knowledge of other ( and successive ) law officers, must be publicly exposed and all of the person(s) responsible called to answer and to account.
    Pressure must be brought to bear within government and/or the ruling Federal and State Labor Party parliamentary members and party officials to cause the S A Premier and the Att Gen to immediately call that Inquiry.
    This is not going away…NONE of them is above the Law.

    • Don Wakeling says:

      If it is the State’s duty to it’s citizens to investigate and prosecute known criminal conduct, then why is that government of South Australia refusing to do so where , for 10 years, law officers perverted the course of justice by wilfully withholding known exculpatory evidence from the imprisoned Keough and his lawyers?
      How can elected Parliamentary members, Ministers and appointed law officers ignore this extreme, abusive, conduct?

      • Robert Greenshields says:

        You raise relevant issues Don, and while SA is the focus of this thread, I think that it is a well recognised fact that every Oz state and territory has enormous problems with the integrity of their very own policing and judicial authorities and those particular distrustful organisations long term practices.
        It’s seemingly an everlasting hangover from the brutal, racist, and echelon classed, corrupted colonial days. Hopefully, the accepted complying .status quo is being “constructively” eroded, and personally I wishfully want the recent rumblings in the UK media highlighting supposed exclusive/elitists families involvement in the disgraceful slavery tradition, to help to further break down the rigid accepted cultures of entitlement, collaboration, and collusion, as we still are manipulated to wrongfully respect and recognise them.
        All the best.

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