A Case in Question

by Herb Hamlet

Henry phoned and explained the situation to Judy Rankin. “You have to fly to Canberra. How much will that cost?”

  “Not that much. We’ll go tourist class and stay at a cheap motel.” He breathed a sigh of frustration. He knew she was struggling, personally as well as financially. “Don’t worry, I’ll pay for it with my credit card.”

  “I’m sorry, Mr. Flanagan. I know you’re cutting costs all the time. Please forgive me.”

  “Of course, Mrs. Rankin. You’re stretched financially - I understand that.”

  “Do we have a chance of having the legislation overturned?” She sounded downcast.

  “I think we have a great chance, Mrs. Rankin,” he assured her. “But it all depends on the Constitutional interpretations of the seven High Court judges who’ll be presiding.” As Henry went on, he tapped his fingers on the desk. “Regardless of what political party is in power, the federal government of the day generally appoints justices to the High Court who they hope will be sympathetic to their legislation.” He tried to sound hopeful. “Even before they make the actual appointment, they have a good idea of the political leanings of any likely candidate to the High Court bench. In the past, a number of appointments could be described as being blatantly political. Two famous examples are Lionel Murphy, who was a minister in the Whitlam Government, of which I was a member, and Sir Garfield Barwick who was a long serving minister in the Menzies Government.” Henry’s lips tightened. “He is reported to have provided advice to Governor General Kerr before he sacked the Whitlam Government. One wonders how objective that advice was.”

  Judy didn’t want to get involved in a political discussion. “What about the current members of the High Court?” She shrugged. “I have no idea of such things.”

  “Very well, I’ll tell you. Three were appointed by the previous Labor Government and three have been appointed by the current Tory government.” He gave an unconscious wave of disgust. “Because Lawson’s state government is also conservative, it’s feasible to assume these three judges will do everything in their power to uphold the legislation.”

  “What about the seventh judge?”

  “An unknown quantity. She’s only recently been appointed and is virtually untested on political matters at this stage.” Henry grinned to himself. “The government desperately needed another woman on the High Court bench for the purpose of gender equality, and Justice Virginia Hall was the front runner by a long way. They took a punt and appointed her. Since coming to the bench, she seems to have handed down her judgments on an impartial basis. However, the cases she has presided over so far have been civil ones.”

  “That’s good for us, isn’t it, Mr. Flanagan?”

  “It should be, but never forget the High Court is a political court.” He didn’t mean to sound so critical. “We could be in for a surprise, one way or the other. The truth is we have no other choice, Mrs. Rankin.”

  ***

  The day preceding Henry’s and Elaine’s departure for Canberra, the practice received an unscheduled visit from the incumbent president of the Queensland Law Society, former Chief Justice Jeremy Barton. An extremely surprised Henry rose to warmly greet the former icon of Queensland law, who was dapperly dressed in a three piece charcoal grey suit, white shirt and blue striped tie. His full head of thick white hair was brushed straight back from his forehead.

  “Jeremy.” Henry extended his hand. “What an honour to have you visit our humble chambers.”

  “Thank you, Henry.” Barton’s face remained impassive as he looked toward Elaine who had shown him in.

  “I’ll leave you two alone.” She closed the door.

  “To what do I owe the pleasure, sir?” Henry raised an eyebrow and pointed to a straight backed chair in front of his desk.

  Carefully positioning himself in the chair, the former Chief Justice coughed to clear his throat. “Henry, as chairman of the Law Society, the state executive suggested I pay you a personal visit to discuss the case you are currently pursuing against the state government and International Correctional Services.”

  “Oh!” Henry’s brow creased. “That’s a bit unusual isn’t it?”

  “Yes, I must admit it is.” The older man looked away his cheeks turning pink. His eyes came back to Henry. “Should you win this case, the financial consequences for the state of Queensland are beyond comprehension.”

  Pursing his lips, Henry’s eyes narrowed. “And what do you suggest I do? Withdraw?”

  Barton’s eyes lit up. “Yes!” Henry’s seeming acceptance of the situation spurred him on. He leaned forward in his chair. “The law society suggests you withdraw and let the action lapse. I’m sure no other barrister would touch the case with a barge-pole, knowing the Queensland Law Society’s views on the matter.”

  Henry slowly rose from his seat to look down on his visitor with contempt. Livid and in disbelief, he was at first tongue-tied. “Stuff your views, Jeremy,” the words finally emerged, “and stuff the views of your bloody law society colleagues.” His temper was close to the surface now. “My loyalties are to my client who has suffered unnecessary pain and degradation under Lawson’s penal system.”

  “How dare you speak to me like that, Flanagan!” He jumped to his feet to glare at him, his cheeks now bright red. “I came here to offer you some worthwhile advice, advice I might add, which may enhance your career after being in the legal wilderness for so long.” He fired Henry a scandalous look. “And you have the gall to treat me with gross contempt and downright rudeness. How dare you!”

  Henry’s scowl deepened. “No sir, how dare you come here attempting to patronise me with your veiled threats. In doing so, you disgrace the organisation you represent. To think I looked up to you in the past.” His lips curled in disgust. “If I was never to obtain another brief in my lifetime, I’d still complete this one and obtain justice for my client.”

  “You’ve no idea what you are letting yourself in for, Flanagan.” The former Chief Justice spat.

  “Oh, don’t worry yourself, Jeremy, I’m well aware of who I’m dealing with. So you can go back to Premier Lawson and tell him to get himself well and truly stuffed.”

  “The Premier didn’t send me.” Jeremy Barton looked away, his eyes unwilling to meet Henry’s.

  “Like hell, he didn’t.” Henry pointed to the door. “Now get out.”

  Chapter Eleven

  It was a bitterly cold winter’s morning when the plane touched down at Canberra’s domestic airport. Emerging from the warm atmosphere of the terminal, the chill hit Elaine with a shock, anchoring her to the spot for a few moments. She shivered and began buttoning up the front of her thick dark grey top coat. She withdrew a pair of black kid gloves from a side pocket and drew them on as Henry placed their suitcases on the damp bitumen at the rear of a taxi.

  The comfortable, moderately priced motel was situated just a short stroll from the High Court of Australia. After unpacking and hanging up his suit bag, Henry strolled across to the window to admire the spray emerging from Captain Cook Memorial Jet at the centre of Lake Burly Griffin, a gushing well, high up into the sky. Mist drifting from the spray created a rainbow effect around the water display, an aura.

  That night they sat at a table in the motel suite, going over their notes, looking for any flaw, however minute. It was almost midnight when she put down her folder, looked across him and yawned. “I don’t think we’ve missed anything, Henry.”

  “No, love, I think we’ve got everything covered.” Tired lines creased his brow. “At least, I hope so.” He noticed her drooping eyelids and smiled. “Let’s go to bed.”

  She raised her eyebrows. “Is that an offer, counselor?” She could barely hold back the mischievous smile.

  He looked up, surprised.“If you like, my gorgeous member of staff.”

  “I like.” She threw her arms around his neck

 
***

  The following morning as Henry and Elaine walked across the High Court’s immense public atrium overlooking Lake Burley Griffin, she gazed around in wonder. “What a magnificent building. Simply beautiful.”

  “Yes, it certainly is a beautiful building, Elaine.” A critical tone crept into his voice.

  “Remember though, it cost a bloody king’s fortune to construct. The bastards didn’t deny themselves anything,” he spat in disgust. “Especially that old fart, Garfield Barwick, who had so much to do with its construction.”

  “Your working class values don’t do you justice, Henry, decked out in your barrister’s wig and black gown.” She laughed lightly. “Despite that fact, you look very handsome and distinguished.”

  “One can’t forget one’s roots, can one?” He shrugged. “Society’s bloody elites. They make me sick.” He smiled at her to soften the harshness of his words. Her loveliness had been evident to him from the first time he set eyes on her. It had certainly distracted him as he interviewed her for the administrative position. The truth was her beauty had taken him by complete surprise. Letting his mind drift back to that occasion, he knew what the difference was now. Right from the start, he knew Elaine to be a good-natured and sensitive person. Nevertheless, there had been something else about her that was difficult to define, a reserved detachment, most likely born out of the abuse she suffered at the hands of her husband, and a need to maintain strict control over her life. On the surface, she exuded confidence and self-assurance, most likely due to her family background and legal training. Underneath, Henry knew the opposite to be the case, her self-esteem at an all-time low.

  The challenge of her job, resuming her Law degree, had turned things around. Finally and most importantly, she now found herself in a loving relationship, a closeness she’d never experienced before. As the weeks passed, Henry couldn’t help noticing a profound improvement in her confidence and bearing. She had reached a stage she could examine a brief and offer him an informed opinion with some confidence. From time to time, she delighted in teasing him, mainly about his working-class attitudes. The Elaine Slater of old had obviously kept a very tight rein on herself. Since coming to work with Henry, the reins had loosened considerably.

  Entering the courtroom, Henry’s eyes narrowed when he saw the barrister representing the government of Queensland. The man in question turned half-heartedly toward their table and approached. “Ah Henry, old chap. Good to see you again.” His voice lacked sincerity. “No hard feelings on my part.” He offered a limp hand.

  Henry took hold and gripped the hand with every ounce of strength he possessed. He whispered curtly, “But I wasn’t screwing your wife, you arsehole, you were screwing mine.” He took immense pleasure in watching his opponent’s face turn red with a mixture of embarrassment and physical pain. Tears materialised in his eyes, a slight whimper emerged from his lips. Still holding the hand in a vice-like grip, Henry asked pleasantly, “And how is dear old Fiona?”

  As soon as his hand was released, the man swung away, eager to escape, but Henry grabbed him by the arm. “I thought Howard was acting for the state in this case?”

  “He had a heart turn,” he mumbled as he beat a path back to his own table.

  Elaine had been watching the little charade from her seat. “Who was that, Henry?”

  “That’s the opposition, my dear, Walter Graham.” His lips tightened. “He’s also my ex-wife’s new husband.” He’d told her about his wife’s infidelity.

  The seven High Court justices filed into the courtroom and everyone rose from their seats. The only people in the courtroom were Henry, Elaine, Graham and his two assistants as well as the seven Justices. There was also a sprinkling of journalists in the gallery.

  Chief Justice Armitage opened. “Are both parties ready to proceed?”

  As one they both answered, “Yes, Your Honour.”

  “You may open, Mr. Flanagan,” he said.

  Just as Justice Armitage leaned back in his high backed chair, Walter Graham sprang to his feet. “Before my learned friend begins...” He looked across at Henry. “If it please the court, the state of Queensland holds grave doubts over the High Court’s authority to adjudicate in this case.”

  “Oh, does it now.” Justice Virginia Hall leaned forward in her chair. “Please go on, Mr. Graham.”

  “Thank you, Your Honour.” Walter Graham lifted a thin manila file from his desk and began to read. “I draw the High Court’s attention to Chapter Three of the Australian Constitution which covers the Judicature. Subsection seventy-three clearly states that the High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences.” He used the index finger of his left hand to indicate one. “Any Justice or Justices exercising the original jurisdiction of the High Court.” He indicated two, with his middle finger. “Of any federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council.” He raised three fingers. “Of the Interstate Commission, but as to questions of law only.” He paused to shrug. “A law passed by a state parliament is not mentioned in the constitution. Therefore, it is the opinion of the Queensland Government that the High Court cannot overturn its new legislation concerning duty of care.”

  When Henry rose to his feet, he looked across at Graham with disdain. “Your honours, my learned friend representing the state of Queensland, has correctly quoted from the Constitution. However, as he and you are well aware, there are many, many precedents for the High Court hearing cases such as this. I am prepared to take the court through a number of these precedents, but I feel it would be a waste of the court’s time.”

  “Yes, yes, I agree, Mr. Flanagan.” There was a dismissive tone in Chief Justice Armitage’s voice as he looked down from the bench at Walter Graham. “Mr. Graham, I will not permit you to waste the court’s time, do you understand?”

  “Yes, Your Honour.” He slumped into his seat.

  “Now Mr. Flanagan, if you please.” Justice Armitage again leaned back in his chair.

  Henry rose to his feet and reached for his notes. He examined the faces of the seven Justices. “Without any preamble, I refer your honours to Chapter Five, subsection one-o-nine of the Australian Constitution and I quote: ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. I’ll repeat that. The latter shall prevail and the former shall, to the extent of the inconsistency, be invalid. Since the Commonwealth government has no ‘duty of care’ legislation concerning prisoners, the new Queensland law is therefore invalid.”

  Walter Graham leaped to his feet. “Your honours, I object to Mr. Flanagan’s interpretation of this subsection of the Constitution. I mean, his whole argument is preposterous. The Commonwealth has only remand and detention centres. They don’t run real prisons, if I can call them that. Therefore, the Commonwealth has no need for ‘duty of care’ legislation for prisoners in the first place.”

  “That argument cannot be supported,” Henry argued as Elaine handed him further notes. “The fact the Commonwealth doesn’t have its own correctional facilities is irrelevant under the Constitution. We’re talking about the law and it is abundantly clear the Commonwealth does not have laws concerning ‘duty of care’ where prisoners are concerned. Therefore, the Queensland legislation is inconsistent with that of the Commonwealth and is invalid.”

  Graham leaped to his feet. “But...”

  He was interrupted by the Chief Justice. “We’ll adjudicate on that, Mr. Graham.” He looked over his glasses in Henry’s direction. “Now please move on, Mr. Flanagan.”

  “Thank you for your p
atience, Your Honour.” Henry let his eyes roam from one justice to another. “I would now like to refer your honours to Chapter Five, subsection one-one-seven of the Australian Constitution which states that a subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”

  Walter Graham was on his feet in an instant. “Your honours, I object in the most strongest possible terms.” He waved a hand in disgust at Henry. “I mean it’s abundantly clear if a prisoner is a resident of Queensland, this subsection of the Constitution would not apply. Therefore Mr. Flanagan’s argument is severely flawed and irrelevant.”

  “I don’t think so.” Henry interrupted. “I can’t speak for our constitutional forefathers who wrote the document, however, we are all aware that the Constitution was designed and drafted to ensure that consistency in the eyes of the law existed for all Australian citizens, regardless of what state they resided in or were visiting at any particular time. Indeed, while the actual wording of the Constitution appears to support my learned colleague’s argument, it is quite apparent that the spirit of the Constitution does not.”

  Chief Justice Armitage consulted with his colleagues before adjudicating. “Your objection is overruled, Mr. Graham.”

  At lunch, Elaine picked at her meal. “What do you think, Henry?”

  “I’m confident, sweetheart.”

  Henry’s judgment was proved correct when the High Court handed down a decision in his favor four to three. All costs were awarded against the Queensland Government.

  Chapter Twelve

  Dick Argent looked every second of his fifty-five years. Thinning grey hair, stooped shoulders, weather-beaten face carrying a permanent hang dog, lacking in confidence, expression. The look, however, was deceptive, and in the past, had proved the undoing of many a Queensland criminal. A highly decorated police officer, Dick Argent had a razor sharp mind and a proven track record in most areas of police investigative work. Unable to rise above the rank of Detective Sergeant during his many years of dedicated service, he watched in frustration as other lesser qualified officers were promoted over him. Dick simply didn’t toe the political line of the government in power. To Dick, political interference had no place in police work and he was punished for this attitude. He knew he’d be wasting his time taking his complaints to a police union which so openly supported the government. They know Special Branch is keeping secret files on opposition members of parliament which breaches the Separation of Powers, yet the union does nothing to stop its own members from acting in this unlawful manner. At the age of forty-five, he was called in for an interview with senior management who suggested he take early retirement. Dick Argent grudgingly accepted their kind invitation.