Geoffrey Hills
I WAS disappointed to read, in the Australian Financial Review of 22 June 2007, of the conduct of your office in relation to legal advice obtained from the respected Tasmanian barrister, Mr Stephen Escourt QC.
Your reference, in a press release, to the office of President of the Australian Bar Association was inappropriate insofar as it lends the imprimatur of the ABA to your criticism of the Prime Minister’s use of Kirribilli House.
Mr Estcourt’s advice was presented in his personal capacity as a member of the Tasmanian Independent Bar and even if it was not your intention to suggest that Mr Estcourt provided the advice in his capacity as President of the ABA, you were at the least reckless and naive in your failure to understand that your press release would convey that impression to the media and public. That barristers practise as sole practitioners and provide legal advice in that capacity is a critical element of our legal system and an element which I would have hoped you would understand and respect.
As a Tasmanian and a member of the legal profession, I am disappointed by your conduct in this matter.
Yours faithfully
Geoffrey Hills BA(Hons) LLB(Hons)
Sydney
Cameron
June 26, 2007 at 13:42
I hope you’re equally as disappointed in the conduct of your Prime Minister, Geoffrey, blatantly misusing a public asset to raise funds for the Liberal Party. The argument that Kirribilli is ‘his house’ is laughable–and hopefully, after eleven years, people will finally decide that enough of this man’s treachery is well anf truly enough.
Geoffrey Hills
June 27, 2007 at 14:02
Hi Banjo,
The problem is that Mr Estcourt provided the advice in his personal capacity as a barrister. He was not speaking on behalf of the Australian Bar Association, which is an apolitical body representing hundreds of barristers across the country. For the ABA to adopt a position officially on a particular issue, there are processes to be followed. I understand that Mr Estcourt is himself disappointed by the conduct of Brown’s office
Cameron – well, I make no comment on the substance of the Kirribilli House issue. I was just pointing to an inappropriate politicisation – this happens all the time and all parties are guilty of it – Liberal, Labor, Green and Calathumpian. But that doesn’t make it right.
confused, of hobart
June 27, 2007 at 22:43
Dear Mister Hills, I was disappointed to read, in your missive above, that you are attempting to pass yourself off as a Tasmanian whilst signing off from Sydney.
As a person who owns an atlas, it is most upsetting and I am disappointed to the point of clinical depression by your passing yourself off as a Tasmanian in this contradictory fashion. Please cease and desist immediately if not forthwith.
Dr Kevin Bonham
June 28, 2007 at 03:20
The media release in question can be seen here:
http://www.bobbrown.org.au/600_media_sub.php?deptItemID=2335
It is not the most blatant case of making an individually-provided opinion look like the view of an organisation that I have seen (or had used against me by some idiot) in the last, oh, week. However it is nonetheless remiss; the press release should have clearly stated that the opinion (like my posts on TT!) was provided in an individual capacity only. The press release is certainly capable of being read as if Escourt’s legal opinion was also that of the ABA, which may not be true, and that, banjo pickin wood nerd (#1), is the problem. (Actually if you’re fully worthy of the “nerd” part of your username then you should have realised that in seconds.)
I would like to offer a view on the Kirribilli debate but alas, while there are many aspects of electoral law that I am quite familiar with, the fine detail of disclosure requirements isn’t one of them.
Rick Pilkington
June 28, 2007 at 04:12
Geoffrey you and Kevin Bonham are being very precious. Boy, what a storm in a teacup. When I glanced at the headline i actually thought for a moment that there may be something serious here.
Alas, I would expect nothing less from you two. I am only surprised that it wasnt (!) who wrote the letter. Why does it not surprise me that Geoffrey Hills “makes no comment on the kirribilli issue” but rather pops up on TT to strain a gnat out of Senator Browns eye. Geoffrey if you truly believe that all parties are guilty of “inappropriate politicisation ” and it happens all the time then why dont your contributions to TT reflect that belief. The same goes for Bonham.
Dr Kevin Bonham
June 28, 2007 at 23:59
Rick writes: “Geoffrey if you truly believe that all parties are guilty of “inappropriate politicisation “ and it happens all the time then why dont your contributions to TT reflect that belief. The same goes for Bonham.”
Rick, if you believe my contributions don’t reflect that belief then you clearly haven’t read all of them.
This is indeed a minor issue (as I stated “not the most blatant case” – so much for me being “precious”) but many journalists are lazy creatures as it is, without them being helped to draw spurious role-confusion-based connections by politicians.
banjo pickin wood nerd – sure, all those comments say it is his opinion, but none of them say whether he is giving that opinion as an individual or in his position, which is referred to in the release. Contrary to your bullshit otherwise, there is no unequivocal and explicit statement that the opinion is in a specifically private capacity. What would have been so hard about including such a statement?
I am not bagging Escourt in the slightest – I presently have no reason whatsoever to question the opinion that he gave, and would be interested in seeing a contrary view if anyone has one. I am not even bagging Brown all that much (I believe that the error was innocent) but I do agree with Geoffrey that the PR could have been done better, and hope that it will be in the future.
Estcourt is blameless – his opinion contains no reference to his position hence provides no reason to assume that it carries any imprimatur. In his position I would have disclaimed it explicitly as not the ABA’s opinion, but only because I have come across too many simple minds on issues like this.
Case reopened! 🙂 Based on past experience I will not be surprised should it now generate 100 posts about nothing remotely relevant.
Dr Kevin Bonham
June 30, 2007 at 00:36
“To state its[sic] his opinion and provide a disclaimer would probably be confusing to readers” – oh really? What would be so confusing about this:
“Mr Estcourt is currently President of the Australian Bar Association, the national representative association of barristers in Australia, but he supplied his opinion in a personal capacity only, and not on behalf of the ABA”
Answer: to any person with the remotest of comprehension skills, absolutely nothing. As low as journalistic standards are, any political journalist receiving the press release would have had no trouble at all grasping that concept. Such a statement would have acknowledged Mr Estcourt’s authority without any chance of misinterpretation.
I have previously responded to the point made where you write “it doesnt need a disclaimer, as repeatedly stated its Mr Escourts[sic] opinion.” so repeating it in answer to my reply to it does not advance your argument.
Criticising Mr Estcourt for not providing a disclaimer himself is grossly unfair, especially when you have only seen his opinion and not whatever correspondence was sent to him to initiate it. He did indeed provide a signed document but nowhere in it did he give any authority for any suggestion to be given (whether deliberately or carelessly) that the opinion might be anything but his own.
Geoffrey Hills
June 30, 2007 at 21:03
Ok, in numbered para form, if I may:
(1) I agree with both Rick and Kevin that it is a minor issue. I’ve never said otherwise; it was reported in the Australian Financial Review’s Legal Affairs Hearsay column on 22 June 2007, after which I simply wrote to Brown’s office to record my disappointment and cc’d it to Tasmanian Times.
(2) Journalists are busy people. Each and every day, they receive many press releases from politicians. Naturally enough, the first thing they read is the subject line, which in this case read: “President of the Australian Bar Association says the free use of Kirribilli House for the Liberal party should have been disclosed”
Legal interpretation in these kinds of matters proceeds by construing a publication in terms of the impression it creates as a whole, rather than chopping it up into individual parts as Banjo has done. Now, go back and read that headline again: “President of the Australian Bar Association says the free use of Kirribilli House for the Liberal party should have been disclosed”.
Reasonably capable of carrying the imputation that Mr Estcourt was speaking on behalf of the Australian Bar Association? -Yes;
Reasonably capable of carrying the imputation that the Australian Bar Association had offically adopted a position on the Kirribilli House matter (which it hasn’t)? -Yes
Then, in the second paragraph, we have: “Senator Brown sought the opinion of Mr Estcourt last Friday. Mr Estcourt’s opinion is attached. Mr Estcourt is currently President of the Australian Bar Association, the national representative association of barristers in Australia.”
Reasonably capable of carrying the imputation that Mr Estcourt had provided the opinion in his capacity as head of the “national representative association of barristers in Australia”? -Yes
(3) Banjo said (#9) that the release “is also sitgned [sic.] by Mr Estcourt”. No, it isn’t. The opinion is signed by Mr Estcourt. Not the release, the opinion. Got it? The opinion is signed “Stephen Estcourt, Malthouse Chambers, 17 June 2007.” And in that respect, it is like all barristers’ opinions, of which I read scores every week. Mr Estcourt is absolutely blameless, as Kevin writes. There is no question of him being under a duty to prevent his opinion being used (intentionally or merely recklessly) in this way by some political staffer.
(4) Like Kevin – and in the absence of any evidence to the contrary – I expect that the error was unintentional, which is plain from my use of the “even if” statement in my original letter: “even if it was not your intention to suggest that Mr Estcourt provided the advice in his capacity as President of the ABA, you were at the least reckless and naive in your failure to understand that your press release would convey that impression to the media and public.”
(5) Rick Pilkington wrote: “Geoffrey if you truly believe that all parties are guilty of “inappropriate politicisation“ and it happens all the time then why dont your contributions to TT reflect that belief. The same goes for Bonham.”
I do truly believe that, Rick but my (infrequent) contributions to TT inevitably reflect, in their concerns, TT’s own focus and a desire to ensure that (a) the Greens are held up to the same standards of scrutiny as the major parties; and (b) to counter the view (widely-held on this website) that the Greens don’t play politics just as every other party does. It’s not hard to find examples of me bagging the Labor and Liberal parties out there in the broader world.
As to Rick’s expression of “no surprise” that I “make no comment on the Kirribilli issue” – the reason I make no comment on that is that before I did so, I’d want to research the relevant law and the facts.
(6) Kevin – won’t be remotely surprised to see this run to 100 posts about nothing. 🙂
Steve
July 2, 2007 at 13:10
Just to stir the pot a bit and help those 100 posts along; surely the media constantly refers to peoples jobs or position when reporting things that, strictly speaking, happened in their private lives. Imagine if John Howard got caught for drink driving whilst on holiday. Would they do a minor report as they would for anyone else in the same position? Don’t think so! Blazing headlines “Prime Minister Caught”.
Possibly my example is extreme but you see the point. The media will always put irrelevant information in a headline to build up the story.
How’s that for a sidetrack, any nibbles?
Cameron
July 2, 2007 at 13:28
One hundred posts about nothing? Don’t flatter yourselves, gentlemen. 83 to go. (84 now.)
Dr Kevin Bonham
July 4, 2007 at 01:07
Yeah, I’ll nibble (#15), it’s a fair enough point to raise. The public (rightly or wrongly) views setting a good example in various aspects of life as being an important and relevant attribute in a Prime Minister, so I’m not sure the information would really be “irrelevant” to readers.
One could even argue that it is relevant for readers to know that Estcourt holds the position he does, when telling them that he supplied this opinion. That fact could inform, for instance, a debate about whether a lawyer’s inclinations affect their chances of being elected President of the ABA, or one about whether holding that office would be likely to affect a lawyer’s willingness to supply an opinion to a party.
The issue isn’t really the relevance of his position becoming known to readers – it is whether or not readers will be made aware that the opinion was supplied in an unofficial rather than an official capacity. Some journalists can be pretty lazy on this sort of thing even without having the excuse that the press release they were given did not distinguish.
Geoffrey Hills
July 4, 2007 at 14:20
100 posts, Cameron? It only takes one “banjo pickin wood nerd”, in my experience of TT.
I’m having some trouble following your posts, Banjo; they seem frequently to be internally contradictory. Nonetheless, I’ll give it a go. You wrote:
“Surely as the supplier of the opinion, it is up to said provider to determine if a disclaimer is needed and as prez of the ABA, having sound legal knowledge (i presume) would be able to to advise on the content of the ‘needed’ disclaimer.”
-Basically, this is a question of political savvy rather than legal duty. There simply is no legal duty; it’s not a legal question in any way. The legal profession (and the Bar in particular) operate in a rather more genteel atmosphere than modern party politics. When the two collide, this kind of thing happens. I guess that was part of my point in the first place.
Steve
July 4, 2007 at 16:41
To extend the point then, it’s relevant for the readers to do what position he holds, the question is clarifying whose opinion he is offering. If he says “I consider…” he is offering his opinion. If he says “We consider..” he is offering the opinion of a group, presumably the ABA in the context. The case can be flipped to say that if offering an opinion on behalf of the ABA it should be made very clear that it is an opinion of the ABA otherwise it should be assumned to be personal.
Geoffrey Hills
July 5, 2007 at 13:51
The point that everyone is not getting is that this is a piece of legal advice, nothing more, nothing less. You retain a lawyer, they provide you with legal services, you pay them. That’s how it works. Just because this case involves a political issue, it’s no different from if John Doe had gone to Mr Estcourt for an opinion on whether he has a s 598 defence to an action under the Control of Termites Act 1862.
By definition, barrister’s opinions (i.e., the provision of legal advice to a client) are given in a personal capacity. By definition because barristers are sole practitioners, partnership being forbidden at the Independent Bar.
No question of whether it’s “I consider” or “We consider” arises because it’s a standard legal opinion from a barrister, for which he was retained. This much is obvious to any lawyer and it is this that I have tried to explain.
Steve
July 5, 2007 at 15:56
19, So much for proof reading I just noticed a “do” in my first line. The astute reader will have deduced it should be “know”.
Well that makes 20 and I’m retiring from this debate unless someone can introduce a juicy sidetrack. I agree with someone a while back who stated that GH is being a bit precious about this. Possibly it comes from residing in that little known part of Tasmania; Sydney. My question is, what on earth is this letter doing being published here anyway. If you want misleading and deceptive media releases surely Paul Lennon’s supplied enough for a life time of debate, and no need to be precious!
Geoffrey Hills
July 5, 2007 at 19:00
It’s always fun to be attacked, whether teasingly or otherwise, for being an expatriate Tasmanian.
Steve
July 6, 2007 at 02:15
20: Sorry can’t resist. The point that everyone is getting is that this isn’t a piece of leagal advice, it’s a report of a piece of legal advice. There’s a world of difference.
You make the point yourself in your initial letter about a barristers opinion always being his own. The logical arguement has to be offered that if a barrister always presents his legal opinion in a personal capacity how is it possible for confusion to arise as to whether it’s a personal opinion or a opinion offered on behalf of the ABA?
The ABA is fully entitled to have an opinion, as has it’s president to express it; we consider…
The more I contemplate this, the more fatuitous it seems. Why did you start this, if not for some cheap point scoring of someone who is very much putting his all behind his beliefs?
Geoffrey Hills
July 6, 2007 at 14:25
“The point that everyone is getting is that this isn’t a piece of leagal advice, it’s a report of a piece of legal advice. There’s a world of difference.”
-Wrong on both counts. It’s not a report, it’s a press release. And it is a press release about the Senator having sought a legal opinion. That legal opinion was provided and is attached to the press release.
“[I]f a barrister always presents his legal opinion in a personal capacity how is it possible for confusion to arise as to whether it’s a personal opinion or a opinion offered on behalf of the ABA?”
-Very simple: because the average punter doesn’t know that.
“Why did you start this, if not for some cheap point scoring of someone who is very much putting his all behind his beliefs?”
-As I have already explained, it was simply a quick (5 minute) piece of correspondence to Senator Brown’s office, which I happened to Cc to Lindsay Tuffin. I didn’t “start” anything. I wrote to one of my elected representatives. Which part of that do you not understand?
“[S]omeone who is very much putting his all behind his beliefs?”
-Well, that’s an unsupported assertion, which I don’t necessarily accept. Actually, I think Bob Brown is as guilty of playing politics as anyone else on the Hill.
“The ABA is fully entitled to have an opinion, as has it’s president to express it; we consider…
The more I contemplate this, the more fatuitous it seems.”
-I’m not having a go at the ABA; on the contrary, I was defending it from being dragged into the political arena and misrepresented by Brown. Of course the Bar Association occasionally adopts positions on issues. However, this was not one of those occasions. The opinion was not the ABA’s. If you doubt me, I suggest you give Stephen Estcourt a call and ask him. Estcourt’s own disappointment at the way he had been used was alluded to in the original Fin Review article.
I think this is as simple an explanation as I can possibly give. I’ve had to explain the same point three times in this TT thread and I’m getting rather sick of it, so if you want to discuss it with me further, Steve, please contact me by email, I will provide you with my office number and will bill you at my standard charge-out rate.
Steve
July 8, 2007 at 13:12
24, My, my we are getting touchy; and I thought that someone who published a letter (sorry, cc’d it…) in a forum environment would be happy to debate, and thus clarify exactly what their point was. Never mind, this is light relief after being depressed about the pulp mill and I’d have been happy to split hairs with you over the difference between a media release and a report. However I think it might be better for you to find someone to give you a hug!