Letters to the Editor

Making Pure Silks

SIR: The Chief Justice of Victoria is the initiator of this one, so I am told. Remember her? She is the one who sided with Maxwell in the Court of Appeal to dismiss the Pell appeal, a decision subsequently reversed unanimously by seven High Court judges.

She does other things, among them being in charge of deciding who becomes SC or not. She was never a QC or SC herself. But her husband—another Supreme Court judge or former one—was. 

She has required all those applying to be a silk in 2022—or beyond, it could well be—to attend a sexual harassment awareness seminar. Apparently merely attendance at one may be sufficient, but that’s not clear. All seminars apparently are done in secret.

Who has conducted these sessions this year, or will conduct them in the future? Grace Tame, maybe? Or Lisa Wilkinson? Or Samantha Maiden? Or even the Chief Justice herself? But if the Chief Justice conducts the seminars, what are her qualifications to do so? She was a litigator (before being appointed a judge by Labor’s Rob Hulls) and I doubt that that gives her any special experience. She succeeded Marilyn Warren as Chief Justice, appointed to that post by Labor’s Martin Pakula in 2017. Pakula has now deserted the Andrews government and quit politics. Hulls, who also appointed Warren as Chief Justice, abandoned politics years ago.

Who decides after going to a seminar that you are then sufficiently sexual-harassment-aware? The Chief Justice? If so, what test does she apply? What are the criteria? Are any criteria published? Do you get a chance to try again? If you fail to become a silk by her decision, was it because she did not think you sufficiently sexual-harassment-aware or was it because you lack legal ability? Will there be candidates of outstanding ability who miss out because she does not think they tried hard enough at the sexual harassment seminars? Or because a seminar deliverer reported adversely about you for a snigger or sideways look in class at the mention of the birds and bees? Will there be avid participators in the seminars who become Senior Counsel who are short on the legal ability called for? 

Did the Chief Justice herself ever undertake training of this nature, or did Warren, her predecessor? And what of all recent silks who never did these awareness programs—should we say they are less worthy in some respect now than those later on who will have done them? Are they under-equipped in some fashion? Is that because in some mysterious way the Chief Justice or someone thinks others are better for having been trained in sexual harassment? 

In summary let me ask: How is a person’s sexual harassment awareness any part of being Senior Counsel, or any business of the Chief Justice? 

One answer to all this was obvious in 1901: get rid of the office of QC, now KC, upon becoming a federation and keep the Chief Justice—whoever it is—out of people’s lives. Now, particularly, that people’s awareness of sexual harassment has become an issue, or maybe even the dominant issue. 

Damien Cremean
(retired barrister,
Deepdene, Vic.)


John Fleming

SIR: In his letter in the October 2022 issue, Christopher Heathcote criticises a comment by Peter O’Brien in his musings on the Massacre Map to the effect that “a group of twelve settlers massacred, without any provocation, twenty-eight Aborigines” at Myall Creek. Heathcote says he understands that the murderers were all either convicts or ticket-of-leave men, so technically they were not “settlers” but transportees.

Heathcote is almost correct. But there was one free settler involved.

In her 2015 BA Honours thesis, “The Twelfth Man: John Fleming and the Myall Creek Massacre”, the Newcastle solicitor Patricia Withycombe examined the role of John Henry Fleming, the only free settler in the group of stockmen who carried out the massacre at Myall Creek on June 10, 1838. She concluded that he was the ringleader and that his status as a second-generation settler, connected to a powerful network of settler families, also sheltered him from the law. The warrant issued for his arrest was never executed. Nor was the £50 reward for his capture ever claimed.

From October 1840 until his death in 1894, Fleming lived a free and public life. When he was appointed a “Magistrate of the Territory” on October 4, 1882, Joseph Palmer Abbott MLA raised the matter in parliament. Speaking on October 18 on the Criminal Law Consolidation Bill, and the courts’ lack of supervision over appointments of agents, he said: “In the last commission of the peace he noticed the name of a man against whom a warrant for murder had at one time been issued.” But Fleming kept his appointment.

The Windsor & Richmond Gazette published in August 1894 an obituary “for an old and respected resident of Wilberforce, Mr John Henry Fleming”. The obituary did not mention Myall Creek, noting only that the deceased “used to tell some stirring stories of the early days of settlement in the colony, and the trouble he had with the Blacks”. 

Douglas Drummond


Peaceful 1788

SIR: The unreliability of the University of Newcastle’s Massacre Map has been investigated at length in Quadrant by Michael Connor and Peter O’Brien. Listing and analysing all the inaccuracies and distortions that have gone into assembling the Map would probably fill several weighty books.

I’ll stick with the Map’s sub­title: “Colonial Frontier Massacres, Australia, 1788 to 1930”. Why choose these dates? There were no massacres in 1788. The first massacre on the Map did not occur until September 1794 on the Hawkesbury, and the last on the Map did not occur in 1930 but in August 1928 at Central Mount Wedge.

The dishonest choice of 1788 as the starting date implies that the British were essentially and naturally murderers of Aborigines, and set about the killing right from January 26, 1788. In fact, the settlement of Sydney under Arthur Phillip was notable for the cautious amity and restraint practised by both sides. During Phillip’s tenure from 1788 to 1792, apart from a few isolated incidents there was little violence between the races. This is something the Left doesn’t want Australians to know.

Phillip’s instructions for the settlement of Sydney included the following:

You are to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them. And if any of Our Subjects shall wantonly destroy them, or give them any unnecessary Interruption in the exercise of their several occupations, it is our Will and Pleasure that you do cause such offenders to be brought to punishment according to the degree of the Offence.

Phillip carried out these instructions to the letter, not just because he was a dutiful officer, but also because they accorded with his own sentiments exactly.

George Thomas


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