Bill Rowlings* questions how ‘professional’ is the Legal Profession Board of Tasmania. It’s a quango that only recently worked out it needs to abide by model litigant principles, a decade after it was created. And it seems to particularly dislike the right of people to question, scrutinise and dissent.
Barbara Etter** is a lawyer who has been contesting complaints against her that are being investigated by the Legal Profession Board.
It is a body which annually seeks funding approval from the Attorney-General and reports formally to the AG each year, making it a quango despite its claims of “independence”. It has 10 statutory functions. Handling complaints is the third listed, but seems to dominate its activities overwhelmingly. Educating the public is one of its activities which appears to have received a very much lower priority.
The first LPB complaint against Etter concerns her comments on the TV program 60 Minutes in 2014 about the evidence introduced at the Sue Neill-Fraser trial (SNF) by the Crown concerning the presence (or otherwise) of blood in the dinghy of the yacht from which SNF’s husband disappeared.
Background: Barbara Etter was SNF’s pro bono lawyer for about five years, after the original trial and appeal to the Tasmanian Supreme Court were long done and dusted. By then, SNF had been sentenced to 23 years jail, with 13 years as the non-parole period, for murdering her husband, Bob Chappell in 2009 (his body has never been found, nor has a murder weapon – that’s another idiosyncratic Tasmanian story). In May 2017, Etter stepped aside from the legal team for the second appeal case, for private reasons not yet explained publicly (nor to me). SNF’s bid for a new hearing with another pro bono legal team is continuing to drag on and out. The SNF bid for a second appeal is now before the Tasmanian Supreme Court, but only at the preparation-for-hearing stage. Now read on…
By one of those serendipitous coincidences, the Supreme Court determining SNF’s application for a new appeal was hearing evidence from an eminent forensic scientist, Dr Mark Reynolds APM, on the same day that Etter’s own appeal over legal technicalities relating to the LPB was being heard in an adjacent Supreme Court room.
Among other topics, Reynolds gave evidence the effect of which was summarised on Page 1 of The Mercury on 9 March 2018 – ‘There was no blood”’– and on pages 4 and 5 as ‘No human blood’. This is one of the key points that Etter has been making since 2014 and for which it is claimed that she brought justice in Tasmania into disrepute. (See ‘Is Etter qualified…?, below).
Also on page 4 is an extended article reporting on Etter’s success that same day before the Full Court (a bench of three Supreme Court judges) in having her right to practise law reinstated pending the outcome of a full hearing before a Full Court, which is likely to be in the last week of May.
Her licence to practise law was suspended in October 2017 by order of the Legal Profession Board, who claimed then, and still claim, that she was obligated to hand over to them her entire client file – both hard copy and electronic – covering the three-year period when she acted for a client on a protracted inquest matter (another possible miscarriage case, which is quite separate from the SNF case).
Etter has always claimed that she had “reasonable excuses” (that is the phrase in the legislation) to not hand over the requested file.
Of relevance to Australians interested in civil liberties is that, at least in Tasmania, it is possible to suspend a lawyer’s practising rights even when no disciplinary allegations or charges have been formally laid against him/her.
What is more, that suspension – entailing cutting off a person’s income, loss of clients, and loss of reputation – can continue for over four months with nobody other than the affected practitioner thinking that this may not be a good look for the profession.
** Is Etter qualified to comment on forensic and legal matters?
(Disclosure: she is a member of Civil Liberties Australia…but has not been consulted in the writing of this article).
Etter holds a Pharmacy degree, an Honours law degree, an MBA, and a Master of Laws. She is an adjunct professor of the School of Law and Justice at Edith Cowan University. She is a Fellow of the Australian Institute of Company Directors (FAICD). Etter is also a Fellow of the Australasian College of Biomedical Scientists (FACBS) and an honorary Fellow of the Australasian Institute of Policing (FAIPOL). She is a member of the Australian and New Zealand Forensic Science Society (ANZFSS) and the Asia Pacific Coroners Society.
Etter was the inaugural CEO of the Tasmanian Integrity Commission (therein lies another devilish Tasmanian story).
Earlier in her career, Etter topped her course at the NSW Police College and, after NSW Police, served as a commander in the NT Police and with WA Police also. In WA, she rose to assistant commissioner and was at various times in charge of Strategy and Performance, Corruption Prevention and Investigation, Traffic and Operations (including specialist support such as Forensic, Communications, Prosecutions, etc.) and Professional Development (including the WA Police Academy). She also acted as Deputy Commissioner in WA on a number of occasions.
Nationally, she was Director of the then Australasian Centre for Policing Research in Adelaide. She is the recipient of an Australian Police Medal (APM, the police equivalent of an OAM).
Etter now runs BEtter Consulting, a boutique legal practice based in Hobart, which specialises in post-conviction reviews, coronial matters and potential miscarriage of justice cases.
Doubts…and a missing model litigant policy
From my obviously fruit fly-affected, mainland viewpoint, it would appear that raising doubts about whether the local legal system has possibly produced miscarriages of justice is not encouraged in Tasmania.
It seems that establishment figures like sleeping dogs to lie. The powers-that-be believe ‘cold case’ re-investigations might turn out to be foxes in sheep’s clothing which could bite them on the bum (Tasmania has suffered from alleged fox poo sightings in recent years, on an island supposed free of vulpes skulks).
Nobody in Tasmania has Etter’s academic and practical knowledge as well as diverse and hands-on experience of delivering “justice” broadly defined. But, like many others before her who have moved to management roles in Tasmania, she has felt the wrath of some CrabApple Isle ‘birthers’, who appear to prefer wilting mediocrity to letting 100 flowers bloom (well, 4 or 5, maybe).
Is Tasmanian justice greater or lesser than that of the other states and territories of Australia? You be the judge. But you would think a legal and police system that was proud of its excellence and confident in its performance would be openly transparent to its citizens, welcoming scrutiny, because there would be nothing to hide.
By its consistent behavior over a number of years, the Tasmanian establishment could have much to hide. Any time a governance system responsible for law and order closes down on itself, citizens have a right to be alarmed. The way the state has handled the second SNF appeal should be the subject of a public inquiry.
The LPB, a relatively new body (2007), claims in its annual report that it “seeks to maintain a complaints handling process which is as good as or better than any other in the nation”. Any profession’s system should be based on a fair go for all parties, the legal profession’s more than any other, you would think.
The LPB, by its own admission, hasn’t been an exemplary entity for most of its 10-year existence. It has not operated to model litigant guidelines. Its latest (2016-17) annual report says:
The Board, in an effort to continually strive for excellence in all of its endeavours, has been working toward the development of a ‘model litigant policy’. The purpose of the policy will be to ensure that the Board and all of its officers adopt the highest of standards when undertaking litigation in relation to disciplinary matters. It is expected that the ‘model litigant policy’ together with the supporting guidelines will be formally adopted by October 2017.”
That’s precisely the same month it was suspending Etter’s practising rights ex parte, as the lawyers say (basically, without her being present at a hearing and having the opportunity to put a case). It’s a pity the Tasmanian government and the directors have permitted its own “legal” board to operate unguided by model litigant principles for most of its existence.
Note: “Model litigant rules, or model litigant obligations, are guidelines for how a government body ought to behave before, during, and after litigation with another government body, a private company, or an individual…It is vital that government bodies should not be ‘out to get’ people, but should be acting in the public interest, according to law.” – Rule of Law Institute of Australia.
The Indian Supreme Court (the equivalent of Australia’s High Court) said in August 2017:
“Above all, it must be realised that it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties…”
– Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors. August 2017.
In Hyderabad, but not in Hobart, it would seem.
ENDS
Bill Rowlings is CEO of Civil Liberties Australia.
Postscript: Senator David Leyonhjelm (LibDem, NSW) currently has a federal private member’s bill on model litigant issues being examined by a Senate committee.
Roxanne Mccardle – “Barbara Etter’s situation is one of many around Australia happening to lawyers, most of whom are those who speak up and stand up for fairness and justice.”
I am one of those many lawyers and I would like to be put in touch with others. In an industry of belittlement and isolation it is hard to continue without supports of others who know and understand. Could you please contact me Roxanne or advise how I can contact you.
Thanks
I confirm that Bill Rowling’s information on similiar boards and committees around Australia are often behaving much the same as the regulator in Tasmania. The conduct of these regulators are highly questionable in some cases. I could name quite a few cases that have interesting facts which the public is often unaware of. Furthermore the lawyers who speak out about corruption, miscarriages of justice, courts being misled on material fact issues in a case, or misbehaviour by senior members of the profession etc are finding themselves targeted by regulators – again similiar to policing and the ethical standards divisions which some say are only protecting the senior officers, with more junior officer/complainants finding themselves instead targeted. Needless to say there is much concern for the integrity of our entire legal institution. It needs independent oversight bodies not those by the current “boys club”. We also rather urgently need a royal commission into family law and its courts. Its long overdue because of the serious errors taking place in that area of law that are causing much harm. It’s appalling. Hopefully the latest inquiry achieves this next step. As for the profession, there is likely discrimination occurring within when you peruse the various statistics on lawyer gender issues plus there are high numbers of suicides. This is not being highlighted anywhere by our politicians yet why not? The royal commission into police informers in Victoria including by a criminal law barrister is alarming. Victorian Premier Dan Andrews had the guts to call one into that legal system though and look at what it’s uncovering. It was apparently long overdue too. We need to do more, much more, in the overall legal system by our demanding greater integrity, oversight, accountability and transparency. We also need judicial commissions to handle complaints often not suited to the appeal process. A group interested in lobbying our parliaments for much greater rights and protections in disciplinary matters for the lawyers who speak out against any form of corruption, any judicial hostility, procedural unfairness and or miscarriages of justice etc, is forming a legal union specifically for lawyers and others in the law. Its aim is to have the ability to raise issues, help defend against allegations in disciplinary matters, lobby politicians, arrange PR campaigns and insurances etc will greatly assist those lawyers that wish to raise issues but currently choose not to out of fear of being personally targetted and having their practising certificate suspended thereby ending up similiar to Barbara Etter and others (although compared to some, Barbara is doing well after her experience with the regulators). A union will be able to take up those issues without there being any negative impact or targetting on the lawyer personally for speaking out on an issue. This too is long overdue and one wonders why it took so long given nurses, police and others have had excellent proactive unions in place for decades.
I believe all law conduct boards need to be totally independent and that means oversight by non-lawyers. It’s similar to complaints on police being investigated by police that is now well recognised as lacking in public confidence as to many decisions or in their independence of oversight.
Barbara Etter’s situation is one of many around Australia happening to lawyers, most of whom are those who speak up and stand up for fairness and justice. Yet isn’t that what lawyers are meant to do?
What occurred to Barbara Etter and her own lawyer in the court ie being refused a fair hearing (which is very obvious) by being so clearly shut down in their submissions is actually quite common in courts all around Australia. Every jurisdiction needs judicial commissions!
Perhaps the last word on the Tasmaian Legal System should be from Barrister and author Jocelynne Scutt, Tasmania’s first anti-discrimination commissioner .
https://www.theage.com.au/articles/2004/10/27/1098667833360.html
Nuff said!
Interesting comments here, though one point I have noted by BrianJ (Christchurch NZ) is the disparaging reference to Andrew Wilkie. Were Tasmania to have 19 more Wilkie’s there would not be the heavily biased carriage of justice in Tasmania, nor the extreme bias found in our justice system.
Andrew Wilkie has devoted his life to upholding the truth and dealing with real issues of that which otherwise is a nonsense and an unnecessary burden on the Tasmanian people and where applicable on the Australian people. Criticism is immediately directed his way by persons that prefer not to face the reality of poor governance, particularly in Tasmania.
This same applies to Barbara Etter, the debarring action sought against this well-respected person is proof of the incompetence in Tasmania’s Justice system.
If one were to study the current governance of both the State of Tasmania and the Federal jurisdiction of Australia generally, one would discover that greed and dishonesty are the hallmarks of both the State and Federal Liberal parties.
Were I not to have discovered for myself the perfidy of Tasmania Courtroom Justice, both in my resort to seek a due judgement decision in my favour, I was abruptly to find that a reliance on the judgement of a magistrate’s hearing was an inexcusable waste of time. Secondly, my studies of Tasmanian Supreme Court case transcripts and State department hearings have provided evidence in a selection of instances, to be loaded with extreme bias, particularly decisions handed down in favour of this State’s public trustees. I would further expand on my claims were I to be challenged in their accuracy.
In response to Gary Stannus, Tasmania’s Legal Profession Act, 2007 says:
586. Obligation of Australian lawyers
(1) …..
(2) ……
(3) An Australian lawyer who is subject to –
(a) a requirement under section 572 (Requirements that may be imposed for investigations under Chapter 4 ); or
(b) …..
must not, without reasonable excuse, fail to comply with the requirement.
Apparently, the Legal Profession Board’s investigating officer issued a section 572 ‘compulsory production of file’ notice to Barbara Etter.
Etter explained in writing, in detail, and repeatedly, her ‘reasonable excuses’ for not producing the file. She attended a Board meeting to explain her position. They told her to leave without giving her any chance to speak.
Observers believe the Board never considered what she believes are ‘reasonable excuses’. Instead they required the Law Society of Tasmania to suspend her practising certificate and they obtained an order from a judge of the Supreme Court that she hand over the file.
Etter then lodged an appeal from the single judge decision. The Full Court (of the Supreme Court) heard the appeal in late May. They refused to allow her counsel to complete his oral submissions. He was stopped very early for no stated reasons. After that, they refused to accept an unexpected piece of ‘new and fresh’ evidence.
The decision of the Full Court is pending.
Civil Liberties Australia is concerned about the behaviour of the Legal Profession Board of Tasmania, and similarly of other such boards, usually with similar-sounding names, in other states and territories of Australia. Firstly, no profession should self-regulate: they should be subject to open and transparent mechanisms involving a majority of people outside the profession to make judgements on the behaviour of members, in this case lawyers. Secondly, most such boards usually eventually comprise a tight coterie of ‘mates’ who deliver a particularly parochial and twisted ‘judgement’.
The smaller the state or territory, the greater the danger that justice is not a necessary outcome of such processes.
– Bill Rowlings, CEO, CLA
I am interested in the following sentence which appears in the CLA article:
“Etter has always claimed that she had “reasonable excuses” (that is the phrase in the legislation) to not hand over the requested file.”
I would like to know the name of the Act that is referred to in that sentence. Is it the ‘Legal Profession Act 2007’ and is the relevant provision ‘Schedule 1 Clause 5 (6)’?
[Schedule 1 Clause 5 (6)]:
5. Procedure
[…]
(6) A person who fails without reasonable excuse to –
[…]
(c) produce or authorise another person to produce any documents when required by the Board to do so; or
[…]
is guilty of an offence.
Penalty: Fine not exceeding 10 penalty units.
[…]
However, if that Act is the relevant legislation, it does not seem to define what “legal excuses” might be. Can anyone help in suggesting what ‘legal excuses’ might exist?
[Disclaimer: I have met Barbara Etter on a number of occasions and have formed a view of her as an honest person, a person of integrity. I make the above comments because I am interested in the legalities confronting her and because I hope to see her regain her right to practise on a permanent basis.]
I’d like to defend Andrew Wilkie from the accusation of being an ‘idiot greenie’. Andrew has no affiliation with the Greens. He is a genuine and very hard-working independent. My experience of Andrew is that he ‘does the right thing’ e.g. in speaking up on the harm caused by pokies and in calling out injustice and corrupt or dubious actions where he sees them. He has great integrity – but there is only one of him so if he doesn’t do everything that we would like him to do my response is that, like the rest of us, he also needs time to sleep!
Based on what you have said and with all her qualifications and experience Barbara Etter must surely know that ‘miscarriages’ of justice are happening over and over again.
Why aren’t people in suitable positions demanding change
I have made approaches – visits, verbal and in writing – to politicians and have been ignored
It is the politicians that have the power to bring about change.
The system should have been overhauled after Lindy Chamberlain
Rather than admit wrong the authorities are pretending they got it right and get it right all the time
The Civil Liberties group could do more and so could Andrew Wilkie
Wilkie too busy being an idiot greenie
As a Tasmanian citizen I feel very concerned about what is happening here in our justice system. But how do we make the necessary changes so we have confidence in the processes and decision making? I don’t have confidence in our state government wanting to make any changes.