Vol 11, Issue 4
A couple of weeks ago an article in De Minimis reported the commemoration, on the 3rd of February, of 50 years since the last ever execution in both Victoria and Australia. A couple of weeks before that, on the 20th of January, a similar commemoration occurred. This one marked 175 years since the first ever execution in Victoria.
The first people executed in Victoria were Tunnerminnerwait and Maulboyheenner, members of, as the Melbourne City Council has stated, the “widespread Aboriginal armed resistance to
colonisation of the day”. The two were represented by Redmond Barry, the University of Melbourne’s first chancellor. He argued that since there was no treaty with the local Aboriginal Nations, the court had no jurisdiction to try the two individuals (an argument, incidentally, which carries significant force still today).
Redmond Barry was also for a time the head of the University Forensic Society, a precursor to Melbourne Law School’s own LSS. And in the 1860s the Corkman Pub (or, the Carlton Inn as it was then known) was one of the places where the society used to hold its meetings.
Famously the Corkman Pub was illegally demolished late last year by developers. Their plan, it seems, was of a similar kind to those of the “group of businessmen” who illegally established Melbourne. After seizing sizeable land holdings, the businessmen “managed to secure retrospective endorsement of their illegal actions”.
I’ll give a short update on what is happening to ensure that the pub’s demolishers do not secure similar endorsement of their illegal actions.
Following the demolition a pretty frantic two days of activity occurred, with law students, law school professors, local residents and heritage activists all involved. It was a fun few days, with enthusiastic contributions from a great and diverse number of people – the raising of various, sometimes highly intricate legal arguments; the collaboration and shared work in research regarding legal avenues, the history of the pub and heritage laws; and collaboration in the production of legal documents and letters. There were also a great number of jokes told, memes made and reference to the movie The Castle. It was open source work done completely by volunteers.
As one student remarked at the time, “30% Love of Corkman. 70% Procrastination. 100% Bloody Brilliant! I’ve never been so interested in the law!!”
One of the results of the activity was a VCAT application to get an order to have the pub rebuilt as closely as practicable to what it once was, with Tim Matthews Staindl and myselfe as the applicants. After significant public pressure, including the institution of the first Green Ban in Victoria for ten years by the CFMEU, Melbourne City Council and the Victorian State Government made their own application to VCAT on the same terms as ours. The developers also made a verbal commitment to rebuild the pub, though they are contesting our VCAT application to force them to rebuild.
The VCAT hearing is due to take place in July. Before that, a compulsory conference is due to take place on the 17th of March. At the compulsory conference the developers are required to present plans for a rebuild of the pub. If the plans are accepted by the applicants, the VCAT hearing in July will be dropped. The plans, which were required to be kept confidential, were supposed to be presented to us on the 6th of March.
On the 6th of March, however, the developers, instead of sending us their proposed plans for the rebuild, requested that the VCAT hearing be stayed pending the outcome of criminal proceedings regarding various criminal offences the developers are alleged to have committed in demolishing the pub. The VCAT hearing, the developers say, will prejudice their ability to defend themselves in the criminal proceedings. Facts which are said to prejudice the developers’ case include that the developers owned the land, and that they didn’t have a permit to demolish the pub.
The stay application hearing will occur on the 17th. If the application is unsuccessful, the compulsory conference may still go ahead on the same day.
Acting for the developers are Stuart Morris QC and Andrew Walker, instructed by Griffin Law Firm. Appearing for Melbourne City Council and the State Planning Minister is John Rantino, a solicitor from Maddocks lawyers. Tim and I are in discussions with Fitzroy Legal Service and construction law specialists regarding our own representation.
Duncan Wallace is a fourth-year JD student
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