Balance: Journal of the Law Society Northern Territory 8

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Bangiadesh -An Experience in By Trevor Riley, QC TeachingAdvocacy — Bangladesh is an extraordinary country. Situated on the Bay ofBengal on the flood plains of the Ganges Delta this country is less than one third the size of the Northern Territory and is home to 120 million people. Think about that; in the whole ofAustraliathere are some 18 million peop1 e. I n the Northern Territory there are only 120,000. Conditions in Bangladesh can be truly described as crowded. Indeed, it is one of the most densely populated countries in the world. The climate is in some respects,similar to that of Darwin. It is tropical and sub-tropical. There is a wet season, when the monsoons are present, from May to October, followed by a "cold" season from October to February and then a "hot" season from March to May. The country is subject to a range of natural disasters includingdrought, flooding and cyclones. In recent times there have been two major cyclones, the first in 1970 when estimates put the loss oflife at between 300.000 and 500,000 people. The second was in 1991 when the loss oflife was estimated at between 140,000 and 200.000 people. Just 25 years ago the country gained its independence from Pakistan following a bloody war in which some 1,000,000 people perished. Since that time the nation has suffered enormous political and economic difficulties. The father of the nation, Sheikh Mujibar Rahman, was assassinated in 1975. One ofhissuccessors. General Ziaur Rahman (Zia) was assassinated in 1981. The country has spent time under martial law, the constitution has been suspended, there have been bans on political activity, the powers of the legislature and the judiciary have been limited. In very recent times there has been a general election at which the Awami League, headed by the daughterofSheikh Mujibar Rahman, Sheikh Hasina Wajed, was successful; and she has been appointed Prime Minister. The constitutional arrangements in Bangladesh are of interest in the 1 ight ofthe debate presently raging in Australia. The country is a constitutional republic. There is a written constitution which came into force on 16 December 1972. It has been the subject ofamendment overthe years. As matters presently stand the parliament is elected by secret ballot and there is universal suffrage. The head ofstate isthe President who has quite limited powers. The President is elected by the members ofparliament. True executive power rests with the Prime Minister and Cabinet. Bangladesh, notwithstanding its turbulent recent history, is proudly and fiercely independent. On the 16th December 1996, along with members ofan advocacy instruction team from the Australian Advocacy Institute, I was privi leged to be present as the country celebrated the Silver Jubilee ofits independence. The celebrations were fervent,joyous, emotional, in large part, spontaneous and attended by tens ofthousands ofpeople. Even though we were outsiders we found the experience to be a deeply moving one. This is the second occasion on which an Australian team has attended in Bangladesh to conduct an Intensive Trial Advocacy Workshop in conjunction with the Bangladesh Bar Council. The first was the beginning of 1996 and was such a success that those involved from both countries were keen to ensure that others followed. The success ofthe latest expedition was such that there can be no doubt that there will be many more. The enthusiasm for the project can be gauged by the reception received by us in Dhaka. Each day we were invited by local barristers to a formal lunch (generally between 1 pm and 3.30pm) and each evening to a dinner. On these occasions we were honoured by the attendance ofleading academics and politicians. At each function there were speeches made which were short, entertaining and informative. One such speech, delivered by the newly appointed Attorney-General for Balgladesh, included a powerful affirmation ofthe importance ofthe independenceofthejudiciary, the need to ensure the continuance ofthe rule of law and restated his commitment tcf work with the judges and the profession to achieve these ends. A recognition ofthe importance with which the Bangladesh community regarded the projectwas demonstrated by the fact that during this busy period of national celebration we were guests of the President ofthe People's Republic ofBangladesh on two occasions. Admittedly on the first occasion we were accompanied by many hundreds ofothers and at best glimpsed the President from a distance. However on the second occasion the reception was for the senior members ofthe Bangladesh Bar Counci 1 and ourselves alone. The President is a formerChiefJustice and, to my rs observation, is a humble yetmuch loved man in Bangladesh. The Australian team was partly sponsored by the A ustral ian Bar Association and was headed by Brian Donovan QC of the Sydney Bar and included David Bennett QC, the President oftheNSW BarAssociation. Other instructors were Robert Kent QC (Melbourne), Clifford Einstein QC, Ann Ainslie Wallace, Stephen Walmsley and Greg Laughton (all of Sydney), Dan O'Gorman (Brisbane), Graham Droppert (Perth) and myself. The workshops were conducted in much the same way asthose conducted by the Australian I nstitute ofAdvocacy. A hypothetical factsituation is created continued on page 9 February 1997 Bangiadesh - An Experience in TeachingAdvocacy= continuedfrom page 8 and the students, who are admitted practitioners ranging in experience from the very new to the quite experienced, then analyse the problem and proceed to make an application to the Court or exami ne or cross examine a witness. The problems were adapted to local conditions but their bases would be familiarto those who have attended workshops in the Northern Territory. One ofthe problems was a contractual dispute between the owner ofa number oftrishaws and the driver of one of the trishaws which was damaged in an accident. The issue was to determine the terms of the contract. Another involved an application for an injunction to permit the fictional Bangladesh Infant Safety Society to conduct a public rally in the streets of Dhaka following a ban placed on the rally by police. One participant, to the amusement of his colleagues, thought the best approach to the second problem wasto form revolutionary committees in the countryside and march on Dhaka. On this occasion we were assisted by senior advocates from the Bangladesh Bar Council. These persons had been through a teachers' course in 1996. Given that English is the second language to the participants (the first is Bangla or Bengali) there were sometimes difficulties in understanding and making ourselves understood. Neverthelessthe improvement in performance witnessed in the participantsreflected that experienced in the Australian workshops. The daily routine involved commencing the workshops at 9.30am, breaking for a formal lunch at about 1pm, resuming the workshops at about 3.30pm and continuing through until about 6.30pm. On some evenings there would be a short ceremony such as the presentation ofCLE certificates after the workshops ceased. Thereafter we would be expected at a formal dinner at 7.30 or 8pm. To my mind the benefits from the visitexisted atthree levels. Firstly, the 1 inks betweenthe peoplesoftwo countries, which are already quite substantial, were enhanced. Secondly, the close ties which exist between the legal professions both at an institutional level and also at a personal level were further cemented. Thirdly and importantly, the skills developed by the participants will enhance the performance ofthese people and others in the courts of the land and elsewhere. The strongerthe legal profession, the more skilled the legal profession, the greaterwi 11 be the respectfor the rule oflaw and, consequently, the greater the prospect that the rule of law will be maintained. Book Review N Moshinsky QC & Paul R Mallam: Annotated Administrative Appeals Legislation Butterworths; 240 pages; $30.00 Reviewed by Fred Davis N Moshinsky QC is a Victorian Barrister. Paul R Mallam is a partner in a Sydney law firm. As the title ofthe text indicates the authors have produced an annotated copy of the Administrative Decisions/Judicial Review Act (1997) and the Administrative Appeals Tribunal Act (1975). The text also indexes and reproducesthe necessary forms, rules and scale offees. The text was accurate at the time of printing. Practitioners should enquire of the Registrar of the Federal Court in respect ofthe latest practice notes, forms and fees. The Commonwealth Administrative Appeals Tribunal was established in 1975. Many practitioners are unfamiliar with the function, powers and procedure ofthe Tribunal. The authors in their introduction explore the relationship between the Administrative Appeals Tribunal, the Ombudsman and the Judicial Review procedures. The Commonwealth administrative law field is rich in case law and novel applications. The authors in their Table of Cases cite authorities such as Hell's Angels -v- Deputy Commissioner ofTaxation, Sankey-v- Whitlam and international authorities such as Canada - v- Inuit Tapirisat ofCanada. The diversity of administrative law is a reflection ofthe areas involved including the Australian Broadcasting Tribunal and Comcare (Commonwealth Workers' Compensation Scheme). Practitioners should be aware that the Supreme Court Library contains a specialist text book dealing with the Comcare system. The chapter entitled Introduction to the Judicial ReviewAct extensively with the question ofwhat is a reviewable decision. The authors have reproduced Sections 2and 3a with the 1 st and 2nd schedules ofthe Administrative Decisions/Judicial Review Act to illustrate the types of decisions which cannot be reviewed. When considering what administrative decisions can be reviewed, a sensible starting point is to examine the principal Act. For example ifthe proposed review involvesthe SocialSecurityAct Xhen that Act must be examined to determine the preliminary steps before the next Administrative Appeals Tribunal can be considered. The next step to be considered is whether the Act gives the right ofaccess to the Administrative Appeals Tribunal. When considering the Administrative Appeals Tribunal Act the first issue is to determine what is a reviewable decision. The authors of the text have dealt extensively with this issue. The text detaiIsthe basis on which the administrative decision can be challenged and the ultimate role ofthe Federal Court. The text book is a practical and comprehensive analysis of Commonwealth adminmistrative law and procedure. February 1997