Home Page
Bulletin Board

About the Association



Please click here for previous newsletters.


MID 2006

Number 12

Secretary Summary

Firstly I must apologise, it has been a while since the last newsletter. Things have been moving more  quickly and more unusually than normal for me but things have, of late, come more under control again.  

As always, I have had many emails returned from CAPSL members who have changed email addresses. I would ask CAPSL members to let me know of a change of email address when they change them.

Issues mentioned in this edition are: 

·      the London CAPSL Meeting

·      CLC 2005

·      CLC 2007

·      Public Sector Induction Program NSW

·      Award for Canadian CAPSL member

·      Scope of Judicial Review Paper

·      Equality and Justice Lecture

·      Ontario Human Rights System

·      Legal Professional Privilege in policy context

The London CAPSL Meeting September 2005

Unfortunately the terrorist bombings in London in July 2005 had, I believe, a negative effect on attendance at the Commonwealth Law Conference and the CAPSL meeting in London last September.

Rather than a full CAPSL day, a number of CAPSL members from Australia and the UK met to discuss things. 

Mike Kendall, Chair of CAPSL in the run up to the London Conference retired and Greg Ross, Secretary of CAPSL was, pending identification of a nominee from Kenya (location of the Commonwealth Law Conference 2007), appointed Acting Chair, pending appointment of a Kenyan Public Sector lawyer.  

Initial contacts with possible candidates has been made but no decision has, as yet, been finalised. Funding of CAPSL operations is an ongoing issue and CAPSL presently has the benefit of support and assistance from the NSW Law Society's Government Solicitors Committee. 

Consistently with the 2003 CLA conference in Melbourne the NSW Law Society's Government Solicitor's committee assisted a young NSW lawyer to attend the CLA conference in London last September. 

I am in contact with the Kenyan Law Society, as organizer of the Commonwealth Law Association conference in Kenya next year, to discuss possibilities for CAPSL involvement in discussion of public sector legal issues and preliminary CAPSL needs.

Commonwealth Law Conference 2005

The theme of the 2005 Commonwealth Law Conference was "Developing Law & Justice". There were in excess of  200 speakers and Chairs in a range of specialised streams covering:

  • Human rights
  • Corporate & Commercial law
  • Criminal Law & Practice (incl. Constitutional Law)
  • Family Law & the Child
  • The Judicial Officer
  • Legal Profession & the Future
  • specialist topics including:

Environmental Law

Freedom of Information and the Regulation of the Media

Liabilities at Sporting Events

Legal Issues arising out of Disasters

Liabilities of Public Authorities for Exercise of Statutory Powers


Sir Shridath Ramphal QC delivered one of the Keynote addresses for the conference, the 50th Anniversary of the initial Commonwealth and Empire Law Conference. His most stimulating and challenging paper "Can the Rule of Law in the Commonwealth be Secure in a Lawless World?" raised the most fundamental of questions for lawyers within the Commonwealth and beyond. 

He extracted from speeches and toasts made in 1955,  in the period of  recovery after World War II.   It is somewhat chilling to consider how the words he quoted resonate so
loudly today. He quoted from Sir Hartley Shawcross'  speeches and toasts made at the closing dinner of that  first conference, 50 years before:

"One cannot have freedom without law, nor can we have law without freedom,
because the Rule of Law is the very negation of arbitrary despotic power. …
…. That is what distinguishes Freedom under the Law from the state of anarchy which preceded law when the life of man, as Hobbes tells us, was solitary, poor, nasty, brutish and short and it is all a question, I suppose, of how far my neighbour’s interests should qualify mine. Here it is perhaps that the lawyer regards himself not as one whose function it is to make the worse appear the better  cause. No lawyer worthy of his gown does that, but looking upon himself perhaps in a small way as something of a minister of justice, he can make some contribution."

The response to Sir Hartley Shawcross' toast by the Prime Minister of the day, Sir Anthony Eden
included the words:-

"This great audience (he said), all of you (sic), have been brought up in the traditions both of the English common law and of the other great legal systems, which have flourished, and continue to flourish, in our lands, yet in all our countries respect for the law remains instinctive. This sentiment has a strong influence to establish and maintain the freedom which has been handed down to us. Freedom is not a flower which grows easily, it has to be cherished. Slavery is a weed that can grow up in any soil, and does. It has always been necessary to set limits to the power of the strong over the weak. We in the British Commonwealth believe we have gone further than this and that in our lands all alike accept the limits set by law and that is the hallmark of true civilisation. (But) I do not want to strike only a note of self-congratulation. We must not take too much for granted. What our ancestors won by effort can only be kept by vigilance. We have all of us, all of us, our respective parts to play. That is true in our economic and political life. It is equally true in law." 

Sir Shridath Ramphal referred to  these quotes as:- 

" timely sentiments whose authority has been enhanced with passing years and which I believe we do well not only to recall but to heed as we gather here again in London today."

Whilst relevant to all lawyers, I believe the warning by Sir Shridath Ramphal has special meaning and relevance to Public Sector lawyers who have a unique role in the rule of law. I commend Sir Shridath Ramphal's words to all. 

CAPSL's Chair in the period to September 2005, Mike Kendall, chaired  a session at the London  Commonwealth Law Conference entitled "In House Counsel" as part of the "Legal Profession and the Future" stream of the CLA Conference. There was lively discussion of the issues. 

CAPSL member William Bailhache of Jersey was part of a panel which discussed the Impact
of International Conventions on Small States and Territories.

Commonwealth Law Conference 2007  

From 8-13 September 2007 the Law Society of Kenya is to host the 15th Commonwealth Law Conference in Nairobi, Kenya. It will be only the second Commonwealth Law Conference on he African continent. 

I understand registrations can be implemented on line from July 2006, so if you are at all
interested I encourage you to contact the organisers to express your interest.

The website is
law2007.org. The Law Society of Kenya has advised that
it can be contacted at

NSW Government Solicitors Induction Program 

The Government Solicitors Committee of the NSW Law Society is currently working up an
induction program for newly appointed government solicitors. The concept is to provide
some support and direction to acquaint them with the special responsibilities applying to
the practice of law in the public sector. The proposal is intended to be a half-day to full
day and be mandatory for all new legal appointments to the NSW public or local government.  

Issues being considered include:

·         the reasons driving the induction program proposal

·         choosing appropriate program content

·         logistics of delivery of such a  program

·         involving watchdog bodies (e.g. Ombudsman, Independent Commission Against
  Corruption)  in the program.

Award for Canadian CAPSL member

CAPSL member Patricia DeGuire was recently named as the winner of the Lincoln Alexander Award. This given to an Ontario lawyer who has demonstrated a commitment to the public and its well being through community service in Ontario, Canada. 

Patricia has served the community of Ontario and beyond in a number of legal roles though her dedication to public service, legal education and social justice. In addition to currently holding the position of  Vice Chair of the Human Rights Tribunal of Ontario, Patricia is an active member of the Law Society of Upper Canada's youth mentorship program and also finds time to conduct community outreach programs, public education initiatives and provides ongoing legal advice lectures and seminars to Caribbean lawyers.

Judicial Review Scope  

The Australian Administrative Review Council's most recent paper The Scope Of Judicial Review was launched by the Chief Justice of the High Court of Australia and the Attorney-General of Australia at a function at the NSW Law Society in Sydney NSW, Australia on 19 May 2006 

The report deals with Australian constitutional and policy considerations applicable to the scope of judicial review and illustrates the underlying role of judicial review in guaranteeing the legitimate exercise of power by the Executive and in maintaining accountability of the Executive. 

Chief Justice, Murray Gleeson AM, pointed out the link between human frailty as a contributory cause of errors in administrative decisions and the need for the Rule of Law to protect against the consequences of the human frailties which can impact on the decision maker. He noted that lack of resources and or systemic failure can contribute to and exacerbate the consequences of human frailty.  

Ontario Human Rights System

There are current developments in Ontario for the review of its Human Rights laws and their enforcement. Draft legislation introduced seeks to improve methods used including by allowing complainants to have more direct access to the Human Rights Tribunal in advancing claims. 

Historically, complainants initially had to complain to the Human Rights Commission, which carried out a sort of preliminary inquiry or investigation, and sought to settle or resolve the allegation before referring cases to the tribunal.  The reforms are understood as intended to remove the Commission's preliminary investigative role and allow persons complaining of breach of their rights under Part I of the Act to complain directly to the tribunal for remedy of the alleged infringement. 

I understand that the proposed changes have met opposition by various groups.  The Attorney General of Ontario has reportedly, as part of the reforms, announced the creation of a human rights legal support centre to make legal representation available to all complainants regardless of income level, abilities, disabilities, or other personal circumstances. However, the Bill 107 has had a number of readings in the Ontario Legislature and may become law before the Legislature rises. 

As Ontario has one of the largest human rights system in Canada, the changes presently being considered may, if implemented, have a ripple effect in the entire Canadian human rights system. 

Legal Professional Privilege in Policy Context 

The recent NSW case of General Manager, Workcover Authority of NSW v Law Society of NSW was a case to do with exemptions from disclosure under freedom of information legislation. The Court of Appeal NSW had to consider the extent to which legal professional privilege can apply in context of policy considerations for changes to an aspect of the legal system (costs recoverable by legal practitioners under changes to workers compensation legislation). The case is of relevance both to in house public sector counsel in respect of their own advice but also in respect of their agencies engaging outside lawyers. 

Recognising the two heads of legal advice privilege as aspects of legal professional privilege, the Court held that providing the dominant purpose test is satisfied legal advice privilege can attach, even to policy type advice, even if the advice contains extraneous material ( such as policy comment) so long as it was prepared for the dominant purposes of giving legal advice. 

The case, which also discusses certain other grounds of exemption from disclosure under NSW Freedom of Information legislation, is available online at the URL shown below.




Greg Ross
C/-Eakin McCaffery Cox
1 Market St



Tel: 02 9265 3078
Fax:  02 9261 5918
web site
: www.capsl.org