Child Protection and disqualified persons – Tribunal says yes

February 12, 2016

Following on from my last post.

I have collected the following cases where the NSW Civil and Administrative Tribunal (NCAT) has made enabling orders in relation to people who would otherwise be “disqualified persons” unable to be granted a “working with children” clearance.

Y1:  AZY v Children’s Guardian [2013] NSWADT 301 (22 November 2013)

On 4 May 2001 a vehicle belonging to the AZY, then aged 23, was involved in a motor vehicle accident. Police attended his home and arrested him for the purpose of a blood and urine test. He was accompanied by a friend. They had both been drinking alcohol. The Police took him to Bankstown Hospital for the test. When he walking into the Hospital, he was following one of the officers, a female. He pinched the female police officer on a buttock. He was charged with the offence of “Assault with Act of Indecency” and when the matter came to Court on 26 September 2002, he pleaded guilty and was convicted and sentenced to 150 hours of community service. He appealed against the severity of the sentence and on 21 October 2002, the District Court at Parramatta substituted for the sentence a Bond to be of good behaviour for 12 months with supervision by the NSW Probation Service.

AZY required a clearance because he wished to adopt his niece, aged 10, who had previously been in the care of his grandparents.

Application under s 28 granted and CG ordered to issue a clearance.

Y2 BFN v NSW Office of Children – Children’s Guardian [2014] NSWCATAD 162 (23 July 2014)

BFN was convicted of carnal knowledge in 1976. The offences were in 1973 and 1975 when the victim 13 and 15 and BFN 19 and 21. They had known each other for some time before that. At the time of conviction the victim was pregnant with BFN’s child and they remained partners to the time of the application in 2014 and had other children and in turn grandchildren. There were some other matters in BGN’s history including a failure (with his partner) to obtain treatment for a scalded child and some domestic violence instances but nothing other than a quad bike accident involving a grandson since about 2001 when, according to BFN and his partner, BFN got over his drink problem.

Application granted.

Y.3   BNJ v Children’s Guardian [2015] NSWCATAD 96

BNJ, aged 57, was observed exposing his penis in the presence of an 83 year-old woman for whom he was the carer.  The witness claimed he was masturbating; BNJ said that he was massaging his groin to relieve pain associated with numerous hernia operations he had had.  He admitted he exposed his penis while doing this but said the woman was asleep and he did not wish to leave her unattended for the 15-20 minutes it would otherwise have taken him to go to a toilet or bathroom to attend to this.  The magistrate found an offence proven  of aggravated indecency, victim over 16 years, contrary to section 61O of the Crimes Act 1900, but dismissed the charge without conviction under section 10.  Nevertheless, the proven offence meant that BNJ was a disqualified person.

BNJ applied to the tribunal for an enabling order. He needed a clearance to resume employment as well as volunteer work with his church and the St John Ambulance.

BNJ did not provide any psychological evidence.  He said that as an unemployed person he could not afford it.  However, he did have legal representation.

Up to the hearing, the Children’s Guardian opposed the application on the basis that BNJ had not discharged the onus, however, at the hearing additional material emerged, one suspects marshalled by BNJ’s legal representative – including a transcript of the magistrate’s remarks on sentencing and documentary evidence (which was not even available at the criminal hearing) substantiating BNJ’s claims about the hernia operations, and the Children’s Guardian’s attitude softened.  BNJ’s application was granted. The flavour of the reasoning can be gathered from the following brief extract:

69   The Tribunal takes into account that the finding of the Local Court that the offence of aggravated indecency was proved. The Tribunal accepts that that the applicant’s actions in exposing his genitals in the presence of a elderly person to whom he was providing care was inappropriate and concerning. The victim was vulnerable, lacked capacity to give consent, and was unable to independently remove herself from the situation.

70.   However, the Tribunal notes that this matter does have some extenuating circumstances. The applicant has been consistent in his claim that his actions were to relieve pain rather than to obtain sexual gratification. At the Tribunal hearing, he has produced medical records that corroborate and substantiate his claims that at the time of his offence, he had a 2-3 year history of groin pain, including four surgical procedures for hernia repair, and further investigation and treatment. Such evidence does not appear to have been before the Local Court during the criminal proceedings, and is relevant in terms of the applicant’s conduct and his credibility generally.

Y4:    BFX v Children’s Guardian [2014] NSWCATAD 115

On 10 January 1998 BFX, then aged 26, was at a party with a large number of other guests. At a time just before dawn, after a night partying and consuming alcohol with the other party guests, BFX performed cunnilingus upon the victim, aged 28, who had been asleep on the lounge chair. The victim awoke. The victim slapped him across the face and kicked him in the head area. It was alleged that BFX admitted the offence to the victim’s sister, when she asked him what happened. BFX pleaded guilty. The victim was a policewoman and the sister of a friend of BFX.

BFX was sentenced to 15 months periodic detention.  He lost his job as a teacher.  He was now married with three children under 10 and a step-child aged about 11. He ran a cleaning business which included contracts to clean a number of schools out of hours.  For this, once the 2012 Act commenced in 2013, he needed a working with children clearance.

BFX had a number of other offences including some subsequent offences relating to driving and alcohol, though none particularly recently.  There were no subsequent offences of a sexual nature.  He did not provide any psychological reports.  Nevertheless, his application for an enabling order was granted.  This appears to be the reasoning:

98  The applicant is a responsible businessman who employs a number of people in his cleaning business. The purpose of the enabling order will be to allow him to continue cleaning schools outside of school hours. It is possible that he will come into contact with schoolchildren as part of that process.


100  The behaviour of the applicant was beyond reasonable community norms but was unplanned, and was not part of ongoing or escalating events. The behaviour is not recent, but if repeated, would do significant harm. There has been a significant and sustained positive socialisation since the offending behaviour occurred and there has been no recurrence of concerning similar behaviour over a significant period.

101  There has been a genuine and sustained effort to remedy the offending conduct. Remorse expressed by the applicant, on its own, has not been considered to be a significant factor that mitigates risk.

In all of the circumstances, on the balance of probabilities it is assessed that the applicant will not pose a real and appreciable risk to the children with whom he will possibly come into contact.

Y5: BRU v Children’s Guardian [2015] NSWCATAD 119

In the first half of 1970, BRU, then aged 18, had a sexual relationship over a period of about 6 months, with a girl, aged 15, whom he had met at a dance.  He said he thought she was 16 but had never asked.  Reading between the lines, the relationship came to an end with the discovery of the girl’s pregnancy.  BRU pleaded guilty (to “carnal knowledge”) and was convicted for this in September 1972. A daughter was born.  Apart from some financial support and attending her marriage, BRU did not have anything more to do with her. He subsequently married twice and had three daughters, by now grown up, from the (by now) 36-year second marriage.

In November 2014 three of BRU’s grandchildren were removed from his daughter’s care and placed under the care of BRU and his wife. The children were aged 11, 4, and 6 months. Since BRU was a disqualified person he was required to move out of the matrimonial home and at the time of the tribunal hearing was living with his mother and a sister.

BRU needed an enabling order if he was to be able to move back in with his wife to help her look after the grandchildren.  BRU’s wife was hoping to be granted parental responsibility or guardianship over the children: one suspects that initially the application was a joint one with BRU before his disqualification came to light.

There was nothing else adverse on BRU’s record; a psychologist said that the risk that BRU presented was minimal and currently commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child.

The application was granted.  BRU was also given a section 128 certificate.  That is a certificate that can be given under the Evidence Act which prevents a person being incriminated by answers that person is obliged to give in evidence.  , Presumably this related to questions he was obliged to give under cross-examination which admitted that there was some period when, as a disqualified person, he was living in the same house as his grandchildren, which is an offence.

Y6: BGS v Children’s Guardian [2015] NSWCATAD 57

In 1991 BGS pleaded guilty to an offence under section 61E (1) of the Crimes Act 1900 (NSW) namely:

“Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years.”

The circumstances of the offence were that BGS, then aged 21, met a couple of girls at a swimming pool who afterwards (on BGS’s account) came back with BGS to the caravan where BGS lived with his parents.  The police facts relate:

“On 30th November, 1990 [BGS], met [girl 1] and [girl 2] at [the Caravan Park]. [Girl 1] and [girl 2] accompanied [BGS] to his parents’ caravan. The defendant went inside the caravan to shower and [girl 1] and [girl 2] followed the defendant into the annex of the caravan and talked to him immediately outside the shower area whilst the defendant was showering. [Girl 1] and [girl 2] then accompanied the defendant to another area of the caravan, namely the lounge area, where the defendant dressed. [Girl 1] took the defendant’s wallet and did so with the intention of teasing the defendant. The defendant then bent over and gave [girl 1] a “love bite” to the left hand side of the neck. The 2 girls then went to the bedroom area to look in the mirror so as to see the effects of the “love bite”. The defendant followed them into the bedroom. The defendant then put an arm around each girl and they all fell to the bed. The defendant said “how about a threesome”. [Girl 2] left the bedroom area. The defendant kissed [girl 1] and rubbed his hands down her legs and between her legs. The defendant proposed sexual intercourse and [girl 1] refused. [Girl 1] then left. The defendant was cooperative with police.”

The offence related to [Girl 1].   BGS said that he thought she was aged 17.  She was in fact 15.  BGS agreed in his oral evidence that he gave the girl a love bite”, but denied he suggested a “threesome”. BGS agreed he suggested they have sex, but after she said “no” she left. The applicant described the incident in his oral evidence as a couple of people “mucking around”.

The magistrate found the offence proven but did not record a conviction and imposed a recognizance to be of good behaviour.  BGS said that he also ‘volunteered’ to perform unpaid community service work. The report to the court dated 20 August 1991 (that is, one year after the sentence was imposed) identified that BGS undertook 24 hours community service “efficiently and with enthusiasm”:  BGS described this work in his letter attached to the application to the Tribunal  as that he was “sent” by the “community service board” to do community service at “an underprivileged kids camp”.

The tribunal accepted that the offence was at the lower range of seriousness, that it was opportunistic and an isolated incident in BGS’s history.  A psychologist reported that BGS fell within the ‘low-moderate’ risk category with a risk of reoffending within the next 5 years estimated at 3.1% in accordance with the actuarial tables that accompany the Static-99R coding rules.  The psychologist’s overall opinion is that BGS’s risk of reoffending should be considered as being “extremely low.”

In fact the tribunal calculated that the psychologist had miscalculated BGS’s score by one point, which put his risk under that test a little lower.

The psychologist commented that BGS had expressed remorse.

BGS was likely to need a clearance for volunteer work he performed.  He had character references.

There was one fly in the ointment: the Children’s Guardian suspected that there had been a plea bargain of some sort back in 1991, because there were some documents which suggested an allegation of sexual intercourse even though that was not contained in the statement of police facts.  The tribunal brushed this aside in the absence of further evidence.  Presumably the court file did not contain any statements by the girls.

An enabling order was made.

Y7:  BRY v Children’s Guardian [2015] NSWCATAD 220

To paraphrase the police facts:

on the evening of 15 June 2002, BRY, then aged 21, was with friends in a nightclub area of a Leagues Club. The victim, (the tribunal thought she was likely to have been a similar age to BRY and held that she was not a child), who was unrelated and unknown to BRY was leaning over a barrier on a staircase talking to another person, when BRY put his hand down the back of the victim’s trousers and tried to put his finger between the victim’s buttocks. The victim turned around and pushed BRY in the chest, pushing him approximately one metre away. The victim recommenced her conversation with her friend. BRY approached the victim again and poked her buttocks and anus over her clothing on two occasions. The victim pushed BRY in the chest and said “fuck off”. BRY walked towards the victim and spat in her face. With a closed fist he swung his arm in the direction of the head of the victim, who took evasive action by ducking backwards and was not struck. BRY moved closer towards the victim and again spat in the victim’s face.

These latter three actions of BRY comprised the three counts of common assault.

BRY said he was drunk at the time.  The tribunal held his conduct could not be characterised as being of the most severe type of matters constituting indecent assualt.

BRY had not committed any subsequent sexual offences but did have a number of alcohol-related offences culminating in breaches of AVOs (domestic violence orders) associated with the end of a relationship in late 2007.  These led to him being sentenced to a suspended term of imprisonment, but also led to him, obviously in order to avoid actual imprisonment, entering into a detoxification program which appeared to have stuck since then.  (He said he had already given up drinking.)

There was a blip of an episode in 2010 involving his partner and his daughter and an interim AVO which never became final, but the tribunal accepted that there was a finding that some of the allegations had been found not to have occurred and that as the partner was supportive and said nothing of them did not take that matter any further.

BRY provided a sort-of psychologist’s report which the Children’s Guardian criticized.  He had qualified as a chef but was now unable to do that and wished to do (and had already done) good works within the indigenous community especially in relation to sport.  He was studying to be a drug and alcohol counsellor and wanted to work with indigenous youth.  He was supported by a phalanx of witnesses in relation to the good works he had done and could do, including his brother, a case manager within the Department of Family and Community Services, a senior employee of Aboriginal Affairs and a Director of an Aboriginal Corporation (that’s 3 separate people).

The tribunal became almost misty-eyed:

79   … the Tribunal notes that the disqualifying offence was not committed against a child. It occurred 13 years ago, and therefore is not particularly recent conduct. The Applicant was 21 years of age at the time of the offending and was a heavy user of alcohol. His conduct, although clearly not trivial and his intoxication not an excuse, was less serious than other conduct which may constitute an offence of indecent assault.

80   His other (non-disqualifying) offending did not involve any offences against children. His offending, and his actions which led to the granting of apprehended violence orders in respect of his former partner, were committed at a time when the Applicant was in his twenties, was using alcohol and/or illicit drugs on a regular basis, and had not engaged appropriate professional support to address those issues.

81.  The Tribunal notes that the Applicant successfully attended rehabilitation in 2007 and 2008. There was some question about the timing of his abstinence from drugs, and in particular, whether it occurred prior to the commission of his last offence in November 2007. In this regard, the Tribunal findings do not turn on the specific dates. It has been established that the Applicant entered rehabilitation in late November 2007 and has maintained his abstinence since that time, as corroborated by his former partner, family and friends. It is also pertinent that the Applicant has had a lack of relevant criminal convictions for almost eight years, and this mainly coincides with his abstinence from alcohol and drugs. The Tribunal finds that the Applicant is genuine in his desire to help Indigenous youth from making similar poor choices, and to encourage them to lead healthier and more productive lives.

82   The Tribunal found the Applicant to be a frank and forthcoming witness. The Tribunal considered that the Applicant has accepted responsibility for his disqualifying offending, and does not seek to minimise his actions nor shy away from the poor conduct and poor choices he has made in the past. The Tribunal is further satisfied that the Applicant has demonstrated insight into the harm caused by his past conduct, and the serious impact of drug and alcohol abuse, sexual assault and domestic violence in the community.

83.  In addition, the Tribunal is satisfied that the Applicant has taken appropriate steps to mitigate the risk of further offending, and of relapsing into the circumstances out of which his offending occurred. The Applicant has utilised professional services, namely drug and alcohol detoxification and rehabilitation, to address his use of drugs and alcohol, which featured prominently in his past offending and conduct.

84.  The Applicant has matured significantly and has made important changes to his life, which is reflected in his lack of relevant criminal convictions in recent years. He enjoys stable relationships with his current partner and his family. He is actively involved in his children’s lives and in his local community. He has gained qualifications and employment, and is pursuing a course of study. There is now an opportunity for the Applicant to build upon his progress and prevent others from remaining on a path of drugs and crime.

An enabling order was made.

Child Protection and disqualified persons

February 10, 2016

In 2013 the Child Protection (Working with Children) Act 2012 came into effect in NSW. The Act defines certain work as “child related work” and provides that in order to undertake such work a person needs to obtain a “Working with Children Clearance” from the Children’s Guardian.

You could think of it as a child-protection equivalent of a tax file number.  Employers and organisations where “child related work” is going on need to register with the Children’s Guardian and cannot allow anyone to do such work unless they have a valid clearance number (which they check with a password-protected log-in).   The system must include a requirement that the Children’s Guardian be notified who is working with children because it includes a mechanism for the Guardian to get in touch with an employer or organisation if something happens to the validity of a person’s clearance (because, for example, they are convicted or otherwise lose their clearance).

“Child-related work” is quite broadly defined, and the requirement also extends to volunteers and to foster carers, would-be adoptive parents, and the like.  There are also some indications that other bodies, such as the Children’s Court, have imposed conditions relating to the acquiring of a working with children clearance on people as a kind of shortcut for determination of their suitability in other contexts.

The heart of the Act (as is so often the case) lies in Schedule 1 and Schedule 2.

Schedule 2 sets out a list of offences.  The list starts with murder, manslaughter of a child (other than by a motor vehicle) and  encompasses sexual offences (including bestiality) and rapes of all kinds (ie, not only of children) as well as other offences such as child pornography and child abuse material offences or kidnapping of a child (other than by a parent of a child – an interesting exception).  A person who has been convicted of these offences as an adult is a “disqualified person.”

Under section 18 of the Act the Children’s Guardian must not grant a clearance to a disqualified person.

If you have been knocked back because you are a disqualified person you can apply to NCAT for an enabling order under section 28 of the Act.

An enabling order will have the effect that you are not to be treated as a disqualified person by reason of a the offence specified in the order.  Under section 28(6) the Tribunal can direct the Children’s Guardian to issue a clearance.  However, the sting is in sections 28(7) and (8):

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(8) was a change from the previous regime.

In the past, it was thought possible for a person who had a dubious history to have conditions imposed on their clearance – to make it, I suppose, a manageable risk, or to recognize that people who have a history which poses a risk in some contexts may not be a risk in other contexts.

The government has walked away from this – one suspects for the simple reason that it does not have the resources, especially now that the requirement for a clearance applies so broadly, to monitor the compliance with such conditions.  This is emphasised by section 30(1A) of the 2012 Act, which provides that the Tribunal may not make an enabling order unless it is satisfied that

“a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work.”

(7) is more problematic.  It has been held to impose a burden of proof on an applicant – in other words, the applicant is to be presumed to pose a risk to the safety of children unless the applicant can prove otherwise.  Straight away, you can see a problem: the notorious problem of proving a negative.  How to prove you are not a risk?

More importantly, what is the content of the risk you are presumed to pose that you have to prove you don’t?

Say, for example, you did something terrible within your family many years ago.  Do you just have to prove that you don’t pose a risk to doing terrible things within your family of that sort any more?  A number of applicants have obviously thought that was what they had to prove – to show that they had moved on and changed their lives, or that the circumstances of their particular misdeed no longer applied.  That does not seem to have been a view shared by the Tribunal.

Similar questions apply to people who, often many years ago, have committed sexual offences against adults.  What exactly is the content of the risk in relation to children that they are presumed to have?

The tribunal tends to want proof that they are totally reformed people who are unlikely to do that bad thing again, even when that bad thing was nothing to do with children.

I wonder if this is the right test.

There is a lot of use of standardised statistics about re-offending, mostly derived from the USA. These are very blunt tools indeed, although perhaps they just match the blunt tool of the statute.

The Tribunal is especially keen to see if people have done a course or had some counselling. This can be problematic if the offence was a long time ago when such things were less in vogue.  It’s all part of a bit of a mantra that says that the first step in minimalizing reoffending is acknowledgement of what you have done and consideration of how you could not do it again.  This is difficult for people who cope with what they have done by burying it (sometimes also moving on in other respects from the situation they were in).  It is also a difficult requirement to satisfy for the many people who cope by minimizing the harm they have caused, let alone people who still don’t accept either that what they did was wrong or that they did the wrong thing.

Schedule 1 casts an even wider net than Schedule 2.  It sets out “assessment requirements.”  For example, it includes cases where people have been charged of offences but have been acquitted.  That is understandable because the object of the system is protective rather than punitive: it is reasonable to protect children according to a different standard of proof from the reasonable doubt which in the criminal law will allow an alleged perpetrator to get off.

If you trigger an assessment requirement, the Children’s Guardian must undertake an assessment.  As a practical matter, this occurs when you either already have a clearance or when you apply for a clearance and are picked up as a result of data-matching or matters you yourself have disclosed in your application.

Those who are refused a clearance have a right of appeal by way of administrative review under section 27 of the Act. The factors to be considered are mostly the same (as set out in section 30 of the Act.)

According the 2014-15 Annual Report of the  Children’s Guardian:

Since the new Working With Children Check began in June 2013, we have processed almost 1 million applications. In the first two full years of operation, almost 2,000 applicants were risk assessed by our team and more than 700 applicants barred from working with children.

Most of this processing is automated, and the rate of activity will doubtless settle down once the regime has been “rolled out” to all sectors, but all the same you can see what an enormous project it is.

I’ll pause here because otherwise the post will be impossibly long, but I propose to return again to the cases where the Tribunal has said yes (which it does sometimes) and when has said no (which it seems to do a bit more often).  Stumbling across one of the latter cases provoked my interest in this melancholy subject.

I doubt if I will get round to the section 27 cases.


February 8, 2016

Or, as we say in the west, Gong Chow Yun Fat!

Martin Place and indeed the whole city is decked out with Chinoiserie. It’s the first day of the year of the monkey.  Westpac has come through with the moolah.

This morning I took the train to work.  As I tapped off with my Opal card, the reader informed me that I had $8.88 left.

Is that auspicious, or what?

Night at the opera

February 2, 2016

Barber Largo

On Saturday night to the opera for the second time this year, to The Barber of Seville.

Something funny happened with a clarinet entry in Figaro’s first big aria.  Just saying – to show I was paying attention.

As I went in, the usher welcomed me.  “It’s good to see the old patrons,” she said, and swiftly corrected herself, “the regular patrons.”

Indeed there was a noticeable scarcity of regulars at both Barber and Pearlfishers the week before.

For Barber this was understandable – it is the umpteenth revival of a venerable production, but Pearlfishers is a new production and it is unlikely that many regulars/oldies were seduced by the medley of arias making up the Opera in the Domain which was also on that night.

The foyer was jazzed up with various bright lights and social media razamatazz. Twin fake palm trees provide a backdrop in front of which you are invited to broadcast your attendance at “Opera Sydney-style.”  I suppose this is Lyndon Terracini’s pursuit of the “big night out” crowd.

In the meantime, it looks as though his hated opera snobs are staying or drifting away.  I don’t think it can just be put down to their dying off.




Agitation in Ashfield

January 17, 2016



A bit more (physical) context:


Danzig decay’d

January 8, 2016

2008 view:


As seen on my way back from Enfield Olympic Pool today:


Beijing streets

January 1, 2016


Not entirely clear to me why somebody should be so attached to these chairs.


At first I wondered what the Beijing prejudice against tyre-kickers might be.


Closer inspection suggested an explanation:





December 31, 2015

More for my own records (because I find it convenient to search here for things I have been to) than to inform the world at large, I just mention two musical performances which I went to in December which have so far escaped notice here.  At this distance I cannot presume to say anything detailed.

SSO – Edwards, Mozart, Elgar; de Waart, Brautigam

This was de Waart’s second program, and strangely passed with less attention than the first, even though it had at least one of his party-pieces (the Elgar).  I enjoyed this. Last night I heard an (unannounced) performance of the Elgar starting on ABC FM just on midnight and thought: “de Waart’s wasn’t as slow as that.” Actually, for all I know, in absolute terms it may have been, but I do not remember the performance as from the pompous Empire end of the Elgarian spectrum.

The Ross Edwards was another almost shameless rehashing of an earlier work – nothing wrong with that, but I would have preferred if instead the SSO paid Nigel Butterley a better tribute this year than they did (Arkcon put them to shame). We could have waited until mañana to hear another Maninya. At this distance of time the strongest recollection I have of Brautigam is his tremendous head of hair – probably on account of my own folically challenged state.

This is a concert I would like to hear again but I expect I have missed the broadcast.

Pinchgut Opera: Gretry, L’Amant Jaloux

This was sung in French with English spoken dialogue – which wasn’t as bad as I at first feared it might be.  Entr’actes were provided by concertante pieces for mandolin (by Hummel) and flute (by Gretry himself) – the former more memorable (and apt) and the latter probably more helpful in padding out the length of an otherwise rather short work.

It is possible to make too much of the parallels between this opera and Mozart and da Ponte’s Marriage of Figaro.  Many of the common ingredients were stock of the period and the dramatic ones can be traced through the Beaumarchais play which was M and da P’s starting point.

I wonder if I wasn’t in quite the right mood for this piece on the night as others have reviewed it more enthusiastically than I felt.  I expect I have come to take for granted much of what Pinchgut is able to do which viewed from another perspective ought still to be counted a wonder.  It certainly wasn’t disappointing – just a bit slight – which is the work really.  I particularly remember bits of rather lovely Gallic fluteyness in the orchestral playing.

There’s a bird in there

December 30, 2015


Two evenings in a row, heading out along the road towards Canberra’s water treatment plant, I spotted a raptor hanging out on this sunny hillside. The first night I saw it carrying what I guessed to be a rabbit from the rocky hillside below. The second night, no such drama, though I’m pretty sure it is in this photo, albeit rather indistinct.

It’s in this terrific tree, here captured from another angle:



December 28, 2015

Sir Kenneth Jacobs, former justice of the High Court of Australia, died, aged 97, this year.

I expect Jacobs’ death will have come as a surprise to many, as it did to me for the simple reason that I assumed he was already dead.  The authors of this obituary of his elder sister, Marjorie Jacobs, who died in 2013, appear to have overlooked that he survived her.

Jacobs was born in 1917 but because of the war had a career that ran on similar lines but mostly in advance of the career of Anthony Mason, born in 1925.  Jacobs was Mason’s predecessor as Challis Lecturer in Equity at the University of Sydney (during which time he wrote the text that still bears his name: Jacobs on Trusts) and preceded Mason to the NSW Supreme Court and Court of Appeal.  Mason was appointed to the High Court from the NSW Court of Appeal by the McMahon Government in 1972.  Jacobs was appointed to the High Court by the Whitlam Government in 1974.

At his swearing-in, Jacobs’ reputation as a judge of liberal views and wide cultural interests beyond the law, particularly in art and music, was acknowledged. When he was subsequently welcomed in Melbourne by the Chairman of the Victorian Bar, Richard McGarvie QC, he was described as a judge of independent and forward-looking mind who placed great importance on civil liberties.

In April 1979 Jacobs resigned from the High Court.  He had been ill and had not sat on any cases in that year. Jacobs was diagnosed with stomach cancer and told he had only a few months to live.  Reportedly, the then chief justice, Garfield Barwick, did not want him to retire and urged him to take a period of leave to see what happened, but Jacobs (who had previously been a judge of the NSW Supreme Court and Court of Appeal which he left as President) took the view that it would impose an unfair burden on other justices to leave the court a judge down.

Cancer turned out to be a misdiagnosis.  Jacobs saw another specialist and was told he had diverticulitis (a very “in” ailment at the time).  He recovered.  It must have been a bit embarrassing and his eventual survival for a further 36 years even seems mildly comical.  It happens.

Since then, a number of other judges have had lengthy absences from the bench owing to illness.  Perhaps his example has deterred any premature resignations.

Jacobs moved to England in the early 1980s (according the The Australian).  His wife, Eleanor, whom he had married shortly after the War (she was a widow – I infer a war widow – with a young son; they also had a daughter) died in 2002.

Jacobs must have been a sprightly octogenarian as in 2007 he graduated with an MA in Classics from the University of London (that’s a bit non-specific – London has many parts – but it’s the best my source provides).

It seems that over the years various Australians popped in to visit him in England, including James Allsop and that inveterate judicial socialite, Michael Kirby.  The National Library has an oral history interview with him conducted by Peter Coleman in 1996.

Jacobs died in May; news filtered back to Australia in early June; the High Court held a ceremonial sitting in October.  The address was given by Chief Justice French which has since been expanded and published as an article in the NSW Bar News, from which I have filched the bit above about Jacobs’ swearing-in and the remarks by McGarvie. The expanded version also held, to me at least, one last surprise:

The court extends its sympathy upon the death of Sir Kenneth to his daughter, Rosemary Henderson, his stepson, Peter Stewart,and his partner since 2008, Christopher Horodyski.






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