Justice Keane will begin his appointment on Monday 22 March 2010. His Honour will be the third Chief Justice appointed to the Federal Court since its inception, and the first from Queensland.

Justice Keane is currently a Judge of the Court of Appeal, Supreme Court of Queensland, an office he has held with distinction since 2005. Prior to taking up judicial appointment, Justice Keane was Solicitor-General for Queensland. Between 1990 and 1992, Justice Keane was Deputy Chairman of the Queensland Law Reform Commission.  He practised at the Queensland Bar between 1978 and 2005, principally in commercial and constitutional matters. Justice Keane was appointed Queen’s Counsel in 1988 and in 2003 was awarded the Centenary Medal.

Consistent with a commitment to a more transparent and merit-based judicial appointments process the Government has undertaken extensive consultation to ensure the selection of the best possible candidate.  The Government sought the views of a wide range of individuals and organisations, including State and Territory Attorneys-General, Chief Justices from across Australia, and the legal profession through the relevant professional associations.

The Government is grateful to all those who put forward nominations, which greatly assisted in the consideration of this appointment.

The Honourable Chief Justice Michael Black AC will retire on 21 March 2010, following 19 years of exemplary service to Australia as Chief Justice of the Federal Court of Australia. 

The Government thanks the Chief Justice for the valued and enduring contribution he has made to Australia’s justice system.

Canberra

10 February 2010

Press Office (02) 6277 7744

Attorney-General’s Office (02) 6277 7300

Media Release

The Attorney-General, Delia Lawrie, today announced the appointment of Judith Kelly SC to the Northern Territory’s Supreme Court bench.

“Ms Kelly brings a wealth of commercial legal experience and a strong understanding of matters unique to the Territory to the bench,” Ms Lawrie said.

“With 23 years experience as a legal practitioner in the Territory, Ms Kelly will be a valuable asset to the Supreme Court.”

Ms Kelly has extensive experience in high-level commercial litigation and was appointed Senior Counsel in 2008.

“I want to congratulate Ms Kelly on her appointment as a Justice of the Supreme Court. She will make a significant contribution to the Northern Territory’s judicial system,” Ms Lawrie said.

Ms Kelly’s appointment follows the retirement of Justice Sally Thomas from the Supreme Court bench.

“I would like to thank Justice Thomas for her valued contribution as both Chief Magistrate for six years and to the Supreme Court over the past 17 years,” Ms Lawrie said.

Biography

Judith Kelly came to the Territory in 1977 and worked as a secondary school teacher at Batchelor Area School from 1977 to 1982.

She completed her law degree in Brisbane in 1985 and was admitted to practise as a barrister in Queensland in February 1986 and as a legal practitioner in the Northern Territory on April 1, 1986.

She began work for the Darwin office of Morris Fletcher & Cross, (later Philip & Mitaros, now Clayton Utz) where she became a partner.

As a solicitor Judith Kelly had a commercial litigation practise with a focus on banking and insolvency, insurance, construction and admiralty law.

After joining William Forster Chambers in 1996 she retained a commercial focus practising mainly in the areas of contract, partnership, building, property, tax and insolvency matters as well as some professional negligence, insurance, native title, administrative law, maritime, probate and family provision matters.

She is married with one son. Judith Kelly has long-standing family connections to the Territory with her grandfather, Harold Snell, arriving in 1912 to build Commonwealth public servant’s houses at Myilly Point while her mother was born in the old Darwin hospital at Doctors Gully in 1923.

The CPD seminar: Administrative law and the Intervention, has been deferred until further notice. This is becasue we are currently awaiting the result of the appeals to the Full Federal Court. This means there will be no CPD seminar at William Forster Chambers for the month of April.  For more information please dont hesitate to contact us, or Click here for details of the seminars to the end of June 2009.

It may come as a shock to some readers that there are now mandatory criminal sanctions for beating up members of your family more than once after the Court has ordered you not to do it.

Some may even be shocked to find out that this has not always been the case.

It may be a surprise to learn that of the incarcerated criminal population in the Northern Territory about 80% are aboriginal males. Of those 80% more than 70% are incarcerated for family violence.

In plain English this means spending lots of our money, and that’s only for the incarcerated ones. We do not appear as a community to be getting much of a return on our investment.

Not practicing in the criminal jurisdiction I had not had the opportunity in my many years of practice in the Northern Territory to do a bush circuit.

I was delightfully surprised to be briefed by the North Australian Aboriginal Family Violence Legal Service to go to Nhulunbuy for the criminal circuit during Melbourne Cup week 2008.

The new Act came into law on 1st July 2008 and has some real teeth in theory. Section 121 of the Act relates to penalty for contravention of Domestic Violence Orders and has two aspects to it.

Non mandatory breach (first breach)

This occurs if the adult perpetrator breaches a domestic violence order. It is strict liability offence (s120 (3)) and carries a penalty of 400 penalty units or imprisonment for 2 years. This applies despite the Sentencing Act.

Mandatory breach (second breach plus harm)

Mandatory minimum 7 days in jail on the second breach doesn’t seem unduly harsh. There is a way out, if you don’t “harm” the victim the second time you breach the Court order then you don’t automatically have to go to jail. As you can imagine it is a common occurrence for perpetrators to unwittingly breach an order of the Court. (by asking the person who they have beaten senseless for years out for dinner and a reconciliation so they can start again or just dropping by to see the kids or some such other act of non harm breach)

Harm is defined in s1A of the Criminal Code as follows;

1. Harm is physical harm or harm to a person’s mental health, whether temporary or permanent.
2. Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.
3. Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.
4. Harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

This aspect of the new Act is really the problem. You can theoretically distress or terrify your victim by threatening to kill them by telephone a number of times but the law says that’s not harmful so no mandatory sentencing. I think the parliament can do a bit better than that. If the victim has to be physically assaulted or prove by expert evidence psychological injury for the perpetrator to get a minimum of 7 days in jail it kind of defeats the purpose to my mind.

Women seeking protection find it difficult to understand why they have to prove over and over again that they are in danger and seeking protection from conduct that has been historically proven many times before this Act came into force.

Fortunately on this occasion the presiding magistrate Mr Cavenagh SM had physical bashings constituting the second breach. The Police and the DPP Prosecutor refused to drop the charges on the breaches and the perpetrators got their mandatory sentences on top of their criminal conviction sentences.

One of the women who had been brutally bashed for many years came to the police station the night before the hearing seeking to drop the charges. This pressure had been brought on her by the perpetrator’s relatives in town. We were able to talk her out of it and arrange for her to be taken to a safe family community 2 hours drive out of town after the hearing and conviction of the perpetrator.

The logistics of keeping aboriginal women safe in the bush are mind boggling. Often women and children are kept prisoner at outstations. They have no transport and are hundreds of miles from services and safety. When they finally escape and have the courage to seek assistance they are usually alienated from family, country and terrified of further attacks from the perpetrator and or his family. Many of the women have been beaten and burned with sticks, raped in front of their children and physically and emotionally degraded in other sickening ways. Often there is insufficient evidence to sustain a criminal conviction.

The police do a wonderful job in very difficult circumstances, and the AGPO’s are slowly turning around the culture of despair by making it easier for the women to report. Often and properly, there is insufficient evidence for criminal charges to be successfully prosecuted. This is where the new Act has its greatest strengths. It can be used to protect women from further attack, it is reasonably easy to administer and the Court has the clout to make breaches of Court Orders mean something.

The police are the key to the effectiveness of the legislation. They have the capacity to take out the orders, (not leaving it to the victim to decide if she needs protection from someone who had broken her arm or teeth or nose) to serve the orders (very important as no breach for an unserved order), and then prosecute for the breach.

Of course incarceration is not the answer but it gives some respite for victims to try with the other government agencies to find accommodation, get the kids into school and provide some stability.

These support services are seriously under funded and overstretched.

In the Nhulunbuy township, there are great schools, good hospital and a nice community but there is severe shortage of houses for people to live in, let alone emergency accommodation to stabilise the traumatised family and help get the kids to school. The women themselves are emotionally damaged by their experiences and need support services to help them build their lives. Those support services are simply not there to meet the demand of women and children escaping violence. However, my one circuit experience which I am sharing with you in this article helped 3 women to escape and try for something better.

Melbourne Cup week will always remind me of those courageous women and all the people who contributed to give them and their children a chance at a better life.

The challenge now is for the Court to determine what view it wishes to take about a breach of its own Order. The effectiveness of this legislation will to a large extent depend on that outcome.

Sally M. Gearin
William Forster Chambers
26 November 2008

There was no suspicion that the children had been subject to abuse and, in the case of the medical service in NTD8, the only relevant children were teenagers believed to be engaging in consensual sexual activity with other young people.

The health services had advised the Examiner that the production of the records without the consent of the children or their parents was likely to result in teenagers avoiding seeking sexual health advice and treatment for fear of breach of confidentiality. The Examiner ignored the advice. His Honour found that the Examiner was required to take into account the best interests of the children as a primary consideration and had failed make a proper assessment of what the best interests of the children called for in the circumstances.

Tony Young appeared for the applicant in NTD8 v ACC and Sally Gearin for the applicant in C Incorporated v ACC. S Maharaj QC appeared for the ACC in both matters. The ACC has appealed.

• NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551
• C Incorporated v Australian Crime Commission [2008] FCA 1806

1. The payment claim must be made pursuant to a construction contract as defined under the Act and not some other contract;
2. The payment claim must be in writing;
3. The payment claim must be a bona fide claim and not a fraudulent claim;
4. The payment claim must state the amount claimed;
5. The payment claim must identify and describe the obligations the contractor claims to have performed and to which the amount claimed relates in sufficient detail for the principal to consider if the payment claim should be paid, part paid or disputed.

A full copy of the decision may be found here. Any inquiries may be directed to Judith Kelly SC or Alistair Wyvill, who were counsel in the case.