This week we are delighted to have as a guest of the Wigs, David Buchanan SC. David is a quiet and unassuming legend of the criminal law in NSW.  Admitted to legal practice in 1975 and then called to the Bar in 1977, in the decades between then and now he has not wearied nor lost his zeal and professional dedication. He was appointed Senior Counsel in 1997 and has almost retired after a long career of practising as both a prosecutor and defence counsel in NSW. He has been a champion of social justice, particularly in his work for, and in, the gay and lesbian community and in response to the HIV/AIDS epidemic both in Australia and overseas. In this interview with Wig Felicity Graham, David shares his personal insights, reflects on his journey through the law, the influences on him, some of his key cases and his tips for surviving and thriving as a criminal law practitioner today. Enjoy the show!See omnystudio.com/listener for privacy information.

In this episode the wigs discuss Vanderstock and Victoria a very fiscally important recent decision of the High Court of Australia. The constitution reserves to the federal government the power to levy excises, essentially taxes on goods. The issue in Vanderstock was whether the Victorian government's electric vehicle levy, charged to owners per km of use was in fact an excise and therefore constitutionally invalid. Victoria said no, the Cth and Vanderstock said yes. In finding the levy invalid the majority departed from decades of case law and potentially fundamentally altered the fiscal balance across the federation. See omnystudio.com/listener for privacy information.

This week Stephen sits down for a long-form chat with Bri Lee, author of the best selling memoir Eggshell Skull which details Bri's work as an associate in the Queensland District Court and her experience as a complainant survivor in the criminal justice system.See omnystudio.com/listener for privacy information.

This week the panel look at a truly unusual and interesting decision from Justice Wigney of the Federal Court which involved a serving federal judge being ordered to pay damages for wrongfully imprisoning a man he jailed for contempt of court.  Stradford (a pseudonym) v Judge Vasta 2023 FCA 1020 has already had massive ramifications.  Some judges have reportedly refused to sit since it was handed down, calls for a standing federal judicial commission to investigate judicial misconduct have been renewed and the decision has been appealed by multiple parties setting the stage for a final determination of the limits of judicial immunity at common law.  The judgment of Justice Wigney delved into the fascinating question of when a judge can be sued for conduct on the bench and involved the surveying of hundreds of years of case law on point.   See omnystudio.com/listener for privacy information.

It is sometimes said in the law that nothing generates hard work and legal ingenuity more than a costs application.  This week the wigs examine a recent decision that was keenly awaited by the criminal law community in NSW. Rodden v R 2023 a decision of the nsw court of criminal appeal. Mr. Rodden was acquitted of murder and his lawyers sought a certificate under the costs in criminal cases act that would have allowed legal aid nsw, who funded his defence, to recover substantial costs incurred in the trial. The first instance judge refused the application, holding that the Act only allowed a certificate where the individual accused had personally incurred costs. This was contrary to the long standing understanding and functioning of the act and in tension with high court authority that states the legally aided status of an accused is generally disregarded in costs matters. The decision was appealed and the decision set aside with the court holding it was no bar to an application being granted that an applicant had not personally incurred the costs. As said, the judgment was keenly awaited. Legal Aid had at stake its institutional interest in recovering such costs certificates and many lawyers had at stake a direct financial interest, because legally aided lawyers recieve a significant uplift in fees in legally aided matters when they secure such a certificate. Unsurprisingly the case was a well argued matter and the judgment is an interesting journey through appellate jurisdiction in NSW and the policy issues at play in costs in criminal proceedings. Now, on with the show!See omnystudio.com/listener for privacy information.

This week the wigs examine the federal government’s proposed Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill.  The draft Bill released by the Albanese government proposes a method to combat the phenomenon of Misinformation and Disinformation, said to be a growing and pressing problem accompanying the explosion in social media and the internet more broadly. The draft Bill has sparked a national conversation around free speech and the extent of the harms posed by false information.  Human Rights Commissioner Lorraine Finlay posed the issue this way in an op-ed in The Australian on Thursday 24 August 2023. "Despite being labelled the “word of the decade” in 2021, fake news is not a modern phenomenon. Misinformation has been spread for political gain since Octavian used fake news to discredit Mark Antony in ancient Rome. What is different today is the way modern technology makes it easier to spread fake news around the world but harder to distinguish fact from fiction. Misinformation and disinformation can have devastating effects on human rights, social cohesion and democratic processes. Australia needs to address these risks. But this needs to be balanced with ensuring we don’t unduly affect freedom of expression".            See omnystudio.com/listener for privacy information.

Welcome to a special "recorded live" episode of the wigs!  The Wigs were invited to attend and live record an episode at the Australian Criminal Law Congress 2023 in Byron Bay. Emmanuel and Jim were unfortunately unavailable, so Felicity and Stephen teamed up with guest wig NSW Public Defender Paul Coady to live record the episode before an audience of lawyers from across Australia. The topic for the episode is "Reform of public criminal prosecutions in Australia, the Sofronoff Inquiry and its aftermath". Felicity Stephen and Paul discuss the key issues and findings of the inquiry and work through what its implications might be. The Conference was hosted by Hugo Law and the keynote speaker was Justice Edelman of the High Court of Australia. A big thank you to Hugo Law and particularly Karen Espinar for reaching out with the invitation. The conference was a big success and The Wigs encourage listeners to consider the conference in future years. A big thanks also to Paul Coady for being a guest wig. A bit about Paul. He began his legal career as a commercial solicitor at Clayton Utz, but turned toward criminal law after an internship with the Innocence Project in New Orleans. He has been at the NSW Bar since 2008 and was appointed a public defender in 2018. See omnystudio.com/listener for privacy information.