The Legal Year commenced with the traditional ceremonies in each State and Territory. For the national Bar, the Legal Year commenced on 3 February 2025 in the High Court of Australia with the Ceremonial Sitting on the Occasion of the Announcement of the Appointment of Senior Counsel and King’s Counsel. In front of family and colleagues, 69 freshly minted Senior Counsel and King’s Counsel appeared to take their bow before the Full Court of the High Court. In his congratulatory remarks to the new Silks, Chief Justice Gageler remarked on the necessary qualities to be appointed senior counsel, namely character and competence. In respect of character, Gageler CJ identified ‘honesty, integrity, independence, diligence, courtesy and courage’.
It is pertinent, at the beginning of the legal year, to remind ourselves that these essential qualities of character are expected of all counsel - by the courts, our professional peers, our clients and the wider community.
Following the Ceremonial Sitting, the new Silks and their families were treated to a wonderful afternoon tea in the foyer of the High Court, before enjoying a black-tie dinner in the National Gallery of Australia, where Steward J generously toasted the new Silks and Stewart Webster KC responded in kind with a toast to the judiciary. A good time was had by all.
VALE
The Hon. Austin Asche AC KC
It is with deep regret that I acknowledge, on behalf of the national Bar, the death of the Hon. Austin Asche AC KC who died on 14 December 2024, at the age of 99 years.
Although born in Melbourne, Asche spent his formative years initially in Rabaul, Papua New Guinea and then in Darwin, where his father, Eric, held the position of Crown Law Officer. Asche returned to Melbourne to complete his secondary education at Melbourne Grammar School.
He joined the Royal Australian Air Force in 1944 and served until 1946.
Asche was educated at the University of Melbourne, attaining a Bachelor of Arts and a Masters of Laws. He was admitted to practice on 1 February 1950. Asche subsequently relocated to Brisbane where he was admitted and practiced at the Queensland Bar, until returning to Melbourne in 1954 where he signed the Victorian Bar Roll. Asche was appointed Queen’s Counsel in 1972.
In 1976 Asche was the first Victorian appointed as a Justice of the newly formed Family Court of Australia. In 1986 he was appointed Justice of the Supreme Court of the Northern Territory and later served as Chief Justice.
Asche retired from the Bench in 1993 and was appointed Administrator of the Northern Territory, a position he held until 1997.
Amongst his many distinguished positions of public service, Asche served as Chairman of the Northern Territory Parole Board; Chairman of the Northern Territory Law Reform Commission; Vice-President and then President of the Royal Melbourne Institute of Technology; Chancellor of Deakin University and Chancellor of the Northern Territory University. He was also an Honorary Colonel in the North West Mobile Force.
Asche was made a Fellow of the Australian College of Education; a Knight of the Most Venerable Order of the Hospital of St John of Jerusalem, and a Companion of the Order of Australia. He received the Centenary medal in 2003. In 2007 Asche became a Freeman of the City of Darwin.
Asche was an exemplar of public service. He had a profound impact on the legal profession and education in Australia, and in particular in the Northern Territory.
A memorial sitting to mark the passing of the Honourable Austin Asche AC KC will be held at the Darwin Supreme Court at 3 pm on Friday, 28 March 2025.
On behalf of the Australian Bar Association, I offer my sincere condolences to his family and to his friends and colleagues.
The Hon. Roger Vincent Gyles AO KC
It is with deep regret that I acknowledge on behalf of the national Bar, the death of the Hon. Roger Vincent Gyles AO KC, a former President of the Australian Bar Association, on 2 March 2025.
Gyles was educated at Newington College. He attended the University of Sydney, graduating in 1961 with First Class Honours in Law. His practice as a solicitor was relatively short, being called to the NSW Bar in 1964. Gyles was appointed Queen’s Counsel in 1975. Gyles had a busy and successful practice, appearing in the Privy Council, the High Court of Australia, in all States and Territories of Australian and in the Courts of Singapore, Papua New Guinea, Fiji and the Solomon Islands. He appeared as counsel in many official inquiries, including as Commonwealth Special Prosecutor into ‘bottom of the harbour’ tax frauds. Between 1990-1992 he was appointed as Royal Commissioner into Productivity in the Building Industry, New South Wales.
In 1975, Gyles was appointed as Acting Master in Equity of the Supreme Court of New South Wales. He was subsequently appointed as an Acting judge of the Supreme Court of New South Wales in 1989 prior to appointments as a Judge of the Federal Court of Australia in 1999 until 2008. Between 2003-2008 he served as Deputy President of the Australian Competition Tribunal, and between 2005-2008 as the Presidential member of the Administrative Appeals Tribunal. He was an additional Judge of the Supreme Court of the Australian Capital Territory between 2001-2008. In 2008, Gyles also served as an Acting Judge of the Court of Appeal of the Supreme Court of New South Wales.
Gyles had an extensive practice in Arbitration -as counsel and as arbitrator/referee, covering the field from building/engineering matters, commercial disputes, energy pricing, and sport – both nationally and internationally. In 2018 he was appointed by the ABA to report on opportunities for barristers in International Arbitration.
In his post judicial life, Gyles chaired many inquiries and reviews. He had a substantial mediation practice and was a much sought after mediator.
Gyles served as President of the New South Wales Association between December 1985 and November 1987, and as President of the Australian Bar Association in 1987.
In 2000, Gyles was awarded an Officer in the Order of Australia for service to the legal profession and the judiciary, particularly as a Royal Commissioner and Special Prosecutor, and to the community.
Gyles AO KC was a tireless servant of the administration of justice and a significant figure in the legal profession. On behalf of the Australian Bar Association, I extend my sincere condolences to his family, friends and colleagues.
Appointments to the Federal Court of Australia.
Throughout February, a number of Ceremonial Sittings were held to welcome the new justices of the Federal Court. I was unfortunately out of the jurisdiction and unable to attend the welcome ceremonies. I thank the respective State Bar presidents who represented the ABA on my behalf.
On 7 March 2025, Mr Graeme Hill SC was appointed a judge of the Federal Court. Originally admitted in the Australian Capital Territory, where he practiced for more than 10 years, Hill signed the Victorian Bar Roll in 2007 and was appointed Senior Counsel in 2021. His appointment as a judge of the Federal Court is effective from 2 April 2025.
Appointments of Chief Justices to Tasmania and Victoria
The beginning of the legal year saw the appointment of new Chief Justices to Tasmania and Victoria.
On 20 January 2025, Chris Shanahan CJ was appointed as Chief Justice of Tasmania.
On 3 February 2025, Richard Niall CJ was appointed as Chief Justice of Victoria.
Appointments to the Federal Circuit and Family Court of Australia
On 7 March 2025 the Commonwealth Attorney-General the Hon. Mark Dreyfus KC MP announced a number of appointments to the Federal Circuit and Family Court of Australia.
On behalf of the national Bar, I congratulate barristers Mr Peter Fary SC and Mr Mark Cleary on their respective appointments as a judge of the Federal Circuit Court and Family Court of Australia.
Change to ABA Council
On 6 February 2025, Dr Rachael Gray KC, former President of the South Australian Bar was appointed as a judge of the Supreme Court of South Australia. I congratulate Rachael and thank her for her service on the ABA Council.
Jane Abbey KC has been elected President of the South Australian Bar, and consequently has joined the Australian Bar Association Council. I extend a warm welcome to Jane and look forward to working with her in 2025.
ABA Conference – CROSSROADS
The ABA Conference, CROSSROADS, will be held in Sydney on Friday, 29 August. The conference committee is working hard and is well advanced in securing excellent speakers over a broad range of topics and practice areas. CROSSROADS will be a conference not to be missed. Booking details will be available soon.
I have received an overwhelmingly positive response to the idea of the ABA organising an international conference. Preliminary investigations are underway. Further details will be forthcoming in due course. It is anticipated that the conference would be held mid-2026.
It has been another busy start to the year. We have, or will shortly be, formally welcoming our eight new judges to the Court: Justice Samuel Vandongen (Perth); Justice Cameron Moore (Sydney); Justice Nicholas Owens (Sydney); Justice James Stellios (Sydney); Justice Houda Younan (Sydney); Justice Elizabeth Bennett (Melbourne); Justice Erin Longbottom (Brisbane) and Justice Amelia Wheatley (Brisbane). On behalf of the judges, registrars and staff of the Federal Court, I congratulate our newest judges on their appointments, and I am confident that they will serve the Australian community with distinction.
I am about to commence my annual visits to each registry of the Court, starting in Darwin on 4 March and finishing in Adelaide in June. During these registry visits, in addition to meeting with each judge individually, I will meet with members of staff, including separate meetings with the Court’s registrars, and with Chambers staff. I will also meet with representatives of the Law Society and independent Bar in each location, and with representatives of the Law Council and Australian Bar Association. The discussions with the profession during the registry visits are always productive. We discuss issues affecting the profession locally and the way they and their clients engage with the Federal Court, as well as national issues. I am always grateful for the enthusiasm of the profession and their willingness to engage with the Court. This year I am also inviting law students to each of the Court’s registries to hear from me, alongside experienced associates of the Court, about the Court’s jurisdiction, workload and the opportunities to work within the Court in its registries and with its judges.
On Friday 31 January, the Court was pleased to host the 2025 Native Title Forum in Brisbane and streamed around the country. The Forum included sessions conducted by eminent experts in the field of Native Title Law including former Justice of the Federal Court, the Hon John Mansfield AM KC, and leading anthropologists Dr David Martin and Ms Wendy Asche. My thanks to Justice Rangiah and Nicola Colbran, the Court’s National Native Title Registrar, for organising this event.
The Forum was opened by Justice Rangiah and involved three sessions. The first session was an address by the Hon John Mansfield which focused on ‘Indigenous land rights and native title: past, present and future’. Following this was a panel discussion on ‘Challenges, innovations and solutions in the native title system’. The panel members included National Judicial Registrar Nicola Colbran, Rachel Kerrigan from the National Indigenous Australians Agency, Susan Walsh, Principal Legal Officer of the Gur A Baradharaw Kod Torres Strait Sea and Land Council, Barrister Carla Klease and Richard Abraham of Minter Ellison.
The afternoon sessions were introduced by Justice Collier and were focused on ‘Conflicts between lawyers and anthropologists in native title law’, presented by Dr David Martin from Anthropos Consulting Services and ‘The mistakes lawyers make in briefing expert witnesses’ presented by Ms Wendy Asche, Anthropology Manager of the Northern Land Council and barrister Joshua Creamer.
A recording of the forum is available on the Court’s YouTube channel.
I would like to acknowledge the following judge and former judges who were recipients of 2025 Australia Day Honours:
On behalf of all the Judges, Registrars and staff of the Federal Court, I congratulate their Honours on their well-deserved achievements.
On 31 January 2025, the Court published a new general practice note regarding the 3 region duty trial: Duty (Urgent) Applications Interim Practice Note for 3 Region Trial (GPN-DUTY). The trial will run for the 2025 and 2026 Court terms.
Concurrently, the Court also issued an accompanying notice to the profession regarding the commencement of three region trial for duty (urgent) applications. The trial, which commenced on 3 February 2025, is a new approach to listing and determining duty (urgent) applications in all registries of the Court. The objective of the trial is to seek to better manage the listing and determination of duty work in the context of the Court’s National Court Framework which uses the individual docket structure. The model being trialled aims to achieve a more even distribution of the duty (urgent) work across all judges in all registries while ensuring sufficient resources are available to determine genuinely urgent applications quickly and by the most efficient means appropriate in the circumstances of the application.
The Court anticipates a consultation process with representatives of the profession after the end of the 2025 Court term and any modifications that come out of consultation will be trialled in the 2026 sitting period. The Court is undertaking ongoing monitoring of the operation of the new arrangements during the trial. The Court welcomes any constructive feedback from the profession which can be provided to DutyTrial@fedcourt.gov.au. I have also asked the professional associations to collate feedback.
As a result of the introduction of the GPN-DUTY Practice Note, a range of consequential amendments were made to existing Practice Notes in various National Practice Areas which address the making of urgent applications:
In February 2025, I travelled to New Zealand to attend the Pacific Judicial Conference, the Pacific Chief Justices’ Leadership Forum and the inaugural Regional Coordination Meeting.
The Pacific Judicial Conference included representatives from 15 Pacific Island nations, as well as Singapore, Malaysia, Brunei Darussalam, the Philippines, Australia, the United Kingdom, and the United States of America. This year’s conference focused on strengthening the institution of the judiciary, technology, climate change and the future shape of courts. I presented a session jointly with Justice Joe Williams of the New Zealand Supreme Court on Legal Pluralism; and participated on a Panel together with Chief Justice Helen Winkelmann of the New Zealand Supreme Court, and Chief Justice Sir Gibbs Salika of the Papua New Guinea Supreme Court, in a session on Foreign Judges in the Pacific.
The Pacific Chief Justices’ Leadership Forum is an annual gathering of 15 Pacific Island nations, and New Zealand and Australia to discuss priority areas; enable leadership dialogue and networking on judicial development; and provide oversight and direction on programs of support to the region.
Justice Burley and I, together with our Director of International Programs, Ms Helen Burrows, presented at the Forum and provided an overview of the Federal Court’s extensive work across the region, an update on key results and resources developed under the Australian Department of Foreign Affairs and Trade funded Pacific Judicial Integrity Program (PJIP) and sought the region’s feedback on future areas of need. I also presented with Chief Justice Winkelmann about the objectives of the FCA and the NZ Courts to work collaboratively and cooperatively with each other in our engagement with our Pacific colleagues.
There was also an inaugural Regional Coordination Meeting. This involved representatives from the New Zealand Judiciary, the Federal Court of Australia, the New Zealand Ministry of Foreign Affairs and Trade-funded Pacific Justice Sector Programme Judicial Executive Committee, the United States Ninth Circuit’s Pacific Islands Committee, Papua New Guinea Centre for Judicial Excellence, the United Kingdom Judicial College, New Zealand Ministry of Foreign Affairs and Trade and Australian Department of Foreign Affairs and Trade. The meeting shared current programs of support to the judiciaries of the Pacific and identified opportunities for better coordination to prevent potential duplication, gaps and activity clashes. Several recommendations were agreed, including the regional coordination meeting being held annually.
On 17 February 2025, I signed a Memorandum of Understanding (MOU) with each of the Supreme and National Courts of Papua New Guinea and the High Court of the Solomon Islands. These MOUs will further strengthen the relationship between the Federal Court and the Pacific region through court-to-court arrangements. Chief Justice Sir Gibbs Salika from the Supreme and National Court of Papua New Guinea, and Chief Justice Sir Albert Palmer from the High Court of the Solomon Islands, were both able to attend the MOU signings in person at the Melbourne Registry.
The Federal Court has collaborated with Papua New Guinea and the Solomon Islands on judicial training and support programs since 2001 and 2004 respectively.
The areas the Courts will collaborate on under the new MOUs align with the priorities articulated by both Chief Justices and aim to promote the quality and efficiency of justice according to the rule of law. Activities under the MOUs will be delivered using a blend of judicial and staff fellowships to the Federal Court and visits to our partner countries, maximising the reach of the Court’s expertise among both judiciaries. For more information, see the Court’s media release or read the Nine News coverage of the event. The Federal Court is grateful for the continuing assistance of DFAT in its international programs work.
On Saturday 22 February 2025, I had the honour of giving the keynote address – the inaugural Honourable Malcolm Blue Memorial Address – at the South Australian Bar Association’s annual conference. In a speech titled ‘Livestreaming: Peaks and Pitfalls’, I provided background on the Court’s approach to livestreaming, and information about current practice. The speech then identifies a range of issues that the Court, with the profession, should consider as we gain more experience of livestreaming in court proceedings. I would like to see these matters remain a topic of discussion throughout 2025, as the Federal Court considers how best to ensure that court proceedings are appropriately accessible to all in the community. My full speech is published on the Court’s website.
Although it is only March, the legal year is in full swing, and I look forward to a busy but productive year ahead.
These Amendment Rules of Court, signed by the Justices of the High Court of Australia on 28 February 2025 are made by the Justices under the Judiciary Act 1903, the Commonwealth Electoral Act 1918 and the High Court of Australia Act 1979.
Amendments to Chapter 2 – Proceedings in the original jurisdiction of the Court
The amendments are aimed at clarifying the circumstances in which applications made in the Court’s original jurisdiction may be determined on the papers. The amendments will enhance the efficiency of the process for the consideration and determination of applications and spare the parties the cost of preparing for and attending a hearing where the Court or a Justice considers that a hearing is not otherwise required.
Part 25 – Mandamus, prohibition, certiorari, habeas corpus and quo warranto
Rule 25.09.1 presently provides that the Court or a Justice may dismiss an application for a constitutional or other writ, without listing the application for hearing, on the ground that the application does not disclose an arguable basis for the relief sought or is an abuse of the process of the Court. The rule does not provide for the determination of an application for a constitutional or other writ on the papers where the application is dismissed on a different basis to that identified. Similarly, the rule does not contemplate the granting of an application without a hearing. Rule 25.09 is amended to ensure that the Court or a Justice may determine an application, without listing it for hearing, regardless of the outcome of the application or, if an application is to be dismissed, the grounds on which an application is dismissed.
Part 26 – Applications for removal under section 40 of the Judiciary Act 1903
Applications for removal of proceedings from another court are routinely determined by a Full Court of two or more Justices on the papers pursuant to rule 26.07. Where an application is made by an Attorney‑General seeking to remove a cause arising under the Constitution or involving its interpretation the application is generally considered by a single Justice. It is more efficient for this type of application to be considered by a single Justice rather than referring the application to a Full Court because, provided there is a relevant constitutional cause pending in another court, there is no discretion to refuse an application by an Attorney-General, with an order for removal to be made “as of course” (see section 40(1) of the Judiciary Act 1903 (Cth)). In these cases it may also be preferable for the Justice to make orders on the papers without requiring the legal representatives of the Attorney-General and the substantive parties to attend a hearing. Rules 26.07.1 and 26.07.1A do not include provision for the determination of applications for removal on the papers by a single Justice. Rules 26.07.1 and 26.07.1A are amended to provide that a single Justice may determine an application for removal, and publish reasons for the decision, without listing it for hearing.
Amendments to Schedule 2 – Fees for work done and services performed
Schedule 2 of the High Court Rules 2004 specifies the amount which solicitors, who are entitled to practise in the High Court, may charge and be allowed on taxation of costs by the Taxing Officer of the Court in respect of proceedings in the Court. The amounts in the Schedule were last varied by the High Court Amendment (Fees) Rules 2023 (F2023L01522) made on 13 November 2023 and apply to work done and services performed by solicitors after 1 January 2024.
The Joint Costs Advisory Committee (JCAC) was established in 2007 to review annually and recommend variations in the quantum of costs contained in the Rules made by the High Court of Australia, the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2). It comprises representatives of those courts. In conducting its reviews, the JCAC applies a formula which has regard to movements in wages and salaries and other costs of solicitors’ practices.
In its report the JCAC recommended an increase of 4.0% to the solicitors’ costs provided for in the Rules of each Court. The High Court has accepted the recommendation of the Committee. The increases to the solicitors’ costs provided in Schedule 2 will take effect on 1 March 2025 and will apply in respect of all work done and services performed by solicitors on or after 1 March 2025.
Consultation
The amendments to Part 25 and Part 26 will have no impact on the parties or their legal representatives other than to avoid the preparatory work and associated costs involved in attending unnecessary hearings. In these circumstances no consultation in relation to the amendments to Chapter 2 was necessary.
When the JCAC conducted its annual review of costs in 2024, the Committee wrote to the Commonwealth Attorney-General’s Department, the Law Council of Australia, the National Association of Community Legal Centres and National Legal Aid inviting them, and their respective constituent bodies or State and Territory counterparts, to make submissions to the review. A notice of the review was also placed on the website of each court. The JCAC received submissions from the Law Council of Australia and from National Legal Aid. Following its review, the JCAC published its Seventeenth Report on Legal Practitioners’ Costs in September 2024. Issues raised in submissions received by the Committee were addressed in the report.
Statement of compatibility
Section 8 of the Legislation Act 2003 provides that Rules of Court made for the High Court of Australia are not legislative instruments for the purposes of that Act. The Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in the Explanatory Statement.
Click here to read the full Amendment Rules of Court.
The Australian Academy of Law is pleased to announce the offering of its Annual Essay Prize for 2025.
The Prize is open to anyone, wherever resident, who is studying or has studied legal subjects at a tertiary level, or who is working or has worked in a law-based occupation. There is no limit by reference to the age or seniority or experience of, or position held by, a person who may submit an entry. Accordingly, judicial officers, legal practitioners, legal academics and law students are all eligible to submit an essay.
The amount of the Prize is $10,000.
The essay topic for the Prize in 2025 is as follows:
Where has Bird v DP [2024] HCA 41 (‘Bird’) left the law of vicarious liability in Australia? How does it differ from the law in other common law jurisdictions? Should there be a legislative response to Bird and, if so, what should be its scope?
The length of the essay to be submitted is a maximum of 8,000 words (excluding the abstract).
The deadline for the submission of an essay is 31 August 2025 and this time limit is strictly observed, as the Rules Governing the Annual Essay Prize make clear.
The Essay Prize Rules can be accessed here.
Access to the essay submission cover page is here.
Duty (urgent) work is a significant and important part of the Federal Court of Australia’s work. On 3 February 2025, the Court will commence a trial of a new approach to listing and determining duty (urgent) applications in all registries of the Court. The object of the trial is to seek to better manage the listing and determination of duty work in the context of the Court’s National Court Framework which uses the individual docket structure. The model being trialled aims to achieve a more even distribution of the duty (urgent) work across all judges in all registries while ensuring sufficient resources are available to determine genuinely urgent applications quickly and by the most efficient means appropriate in the circumstances of the particular application. This notice explains how the trial model will operate.
On 31 January 2025, the Court published a new general practice note, which will apply during the trial period: Duty (Urgent) Applications Interim Practice Note for 3 Region Trial (GPN-DUTY). The trial will run for the 2025 and 2026 Court terms.
The GPN-DUTY practice note formalises some aspects of the Court’s existing practice in relation to duty applications and also introduces a new requirement in the form of a certificate of urgency that must be provided in support of a duty application. The form of the certificate of urgency is set out in Annexure A to the GPN-DUTY practice note. An applicant or their legal representative must certify, amongst other things, that they have read and thoroughly familiarised themselves with the GPN-DUTY practice note. The certificate of urgency provided by the applicant will be considered by the relevant Duty Judge to determine whether a duty application is attended by sufficient urgency to justify the application (or part of the application) being determined by a Duty Judge on an urgent basis outside the usual Docket and/or Specialty List Arrangements.
During the trial period, the Court will monitor the new arrangements with a view to assessing whether the trial should be extended and/or modified. During the trial period, the Court welcomes feedback in relation to the trial. Practitioners may provide constructive feedback by emailing DutyTrial@fedcourt.gov.au. The Chief Justice will be communicating with professional associations about whether they are also able to provide collated feedback, and she will discuss this trial during her meetings with the profession at her 2025 FCA Registry visits.
The Court anticipates a consultation process with representatives of the profession after the end of the 2025 Court term. Any modifications to the arrangements that come out of this consultation will be trialled in the 2026 sitting period.
A decision as to whether to implement the new arrangements on a more permanent basis will be made following consultation with the profession at the end of 2026, when the trial is completed.
Three Duty Regions
During the trial, duty applications will be managed by reference to three duty regions. Each region is comprised of a number of registries and each region will operate according to its own independent duty roster:
Due to the volume of duty applications filed in Region 1 and Region 2, each of these regions will operate two streams of duty: General Duty and Commercial and Corporations Duty. The two streams of duty will be run concurrently with at least one Duty Judge rostered on each stream for each day of the Court term. The demarcation between the types of applications that fall within each of these two streams is addressed in the GPN-DUTY practice note. If an applicant is in doubt as to whether an application is a General Duty Application or a Commercial and Corporations Duty Application, the application should first be brought to the attention of the General Duty Judge.
Due to the lesser volume of duty matters in Region 3, this region will operate one combined Duty Roster with at least one Duty Judge rostered on for each day of the Court term.
First point of contact for urgent applications
The Daily Court Lists will contain the names and contact details of the Duty Judge(s) rostered in the relevant region.
The Court will continue to operate its existing arrangements in relation to the first point of contact for urgent duty applications. This means that:
Information to be provided to the Court
The GPN-DUTY practice note sets out the information an applicant (or their legal representative) must provide to the Court at the time of their initial contact with the Court. This includes the following information:
Requirement to submit a Certificate of Urgency
An applicant seeking a hearing before a Duty Judge must demonstrate to the satisfaction of the Duty Judge that the application is genuinely urgent and must submit a ‘Certificate of Urgency’ to the Duty Judge’s chambers at the time of making their application. The form of the Certificate is in Annexure A to the GPN-DUTY practice note.
Filing urgent applications
The GPN-DUTY practice note provides guidance on how urgent applications are to be filed (ideally via eLodgment, depending on the urgency of the matter).
Amendments to other existing Practice Notes
As a result of the introduction of the GPN-DUTY practice note, a range of consequential amendments will need to be made to existing Practice Notes in various National Practice Areas which address the making of urgent applications.
Consultation and feedback
The Court will monitor the operation of the new arrangements during the trial with a view to assessing whether it is meeting the objectives outlined above. As mentioned, the Court welcomes any constructive feedback from the profession during the operation of the trial, including suggestions for improvement.
Further updates on the trial will be published by the Court as appropriate.
D S Mortimer
Chief Justice
Date: 31 January 2025
At the request of the Court, the ABA is helping collate any constructive feedback and forwarding it onto the court at set intervals. If you have feedback, please send it to ceo@austbar.asn.au.
Message from the Chief Justice of the Federal Court of Australia, the Hon Chief Justice Mortimer
Appointment Opportunities at the Administrative Review Tribunal
Best Practice Guideline – The Cab Rank Rule
Law Council of Australia – Commonwealth Law Conference
2025 ABA Advanced Trial Advocacy Intensive – Civil Brief
As 2024 draws to a close, I take this opportunity to provide an update on the current work of the ABA and to acknowledge the service of those retiring from the ABA Council.
Anti-Money Laundering Proposed Legislation
The Immediate Past President, Peter Dunning KC, has previously written to you regarding the Anti-Money Laundering and Counter Terrorism Financing Amendment Bill 2024 (AML Bill).
The AML Bill subjects those providing certain designated professional services to the existing Anti-Money Laundering and Counter Terrorism Financing regime (AML-CTF regime). The description of the designated services in Table 6 includes the provision of services in connection with transactions to buy or sell real estate; transactions to buy or sell a body corporate or other legal arrangement; transactions for equity or debt financing relating to a body corporate or other legal arrangement, and the creation or restructuring of a body corporate or other legal arrangement.
The AML Bill has now passed the Commonwealth Parliament with a significant amendment. The amendment provides:
“…a service is not a designated service if the service is provided by a person in the course of legal practice as a barrister on the instructions of a solicitor, if the instructions are given in connection with the provision of a designated service.”
This amendment follows submissions and representations made by the Australian Bar Association, individual State and Territory bar associations, and the Law Council of Australia. I would particularly like to thank and acknowledge the hard work of Peter Dunning KC and Michael Izzo SC, senior vice president of the ABA.
Importantly the effect of this amendment for barristers is that:
This topic is likely to be the subject of further communication from your local bar association. It is also anticipated that AUSTRAC will issue guidance to the profession in order to assist those who are required to comply with the AML-CTF regime to do so.
Best Practice Guideline
The Best Practice Guideline on the Cab Rank Rule is now available to members on the ABA website.
I would like to thank Tom Bathurst SC and Domenic Fawcett for their considered work in drafting, revising and settling this Best Practice Guideline and I recommend it to members.
Ongoing Projects
The ABA through the Executive and sub-committees continues to work on the following projects:
I anticipate being in a position to provide further updates on these projects in 2025.
ABA Council for 2025
The Annual General Meeting of the ABA was held on 20 November 2024 in Sydney. The President Peter Dunning KC provided his report on the activities of the ABA and thanked Greg Tolhurst, CEO, Kelly Rissman, CFO and Liz Barr, Executive Assistant and the ABA Council for their hard work and helpful contribution throughout 2024. The Treasurer Andrew Muller SC provided his annual report and noted that the ABA’s financial position continues to be strong. The following members were elected to serve on the Executive:
The Constituent Body Representatives are:
I had the pleasure as my first task in the role as President to thank the Immediate Past President Peter Dunning KC for his dedicated service to the ABA. In 2020 Peter joined the ABA Executive as Treasurer and was instrumental in a restructure of the ABA administration costs, which has successfully ensured the sound financial position of the ABA today. Peter served diligently as Vice-President in 2021, before being elected President in 2022. As President, Peter distinguished himself as a leader, maintaining excellent relationships with the judiciary, the members of the legislature and members of the ABA. Peter’s natural charm and good grace have been a hallmark of his four years on the Executive of the ABA Council.
On behalf of the ABA, I thank Peter for his outstanding leadership and hard work. I look forward to continuing to work with Peter as he remains on the Executive in the new role of Immediate Past President.
I wish to acknowledge the retiring members of the Council and thank them for their respective thoughtful and constructive contributions:
ABA Conference
Save the date: Preparations are underway for the 2025 ABA annual conference which will now be held in Sydney on Friday, 29 August. The conference will explore the role of the Bar at the intersection where the law and public policy meet, with an emphasis on current social issues. This area of practice can give rise to numerous issues for members who, as you know, are bound by the ‘cab rank rule’. We will announce more details early in the new year but for now please save the date.
International conference
Perhaps it is just Victorians who are keen to get away from the Melbourne winter, however, the most frequently asked question which I have received since being elected President is:
When is the next ABA conference being held overseas?
The ABA Council is interested in gauging the level of interest in an international conference. If you are interested, please let me know.
Summer Holidays
I wish all members a happy and safe holiday. For those members celebrating Hanukah, I hope the light of the festival continues to shine brightly in your community. For those members celebrating the birth of Jesus Christ, I wish you a joyous Christmas.
Looking forward to 2025.
As we approach the end of 2024, I would like to thank the Australian Bar Association for the opportunity to provide this quarterly contribution. As always, there has been a lot happening at the Federal Court and I am pleased to provide this update.
I am proud to provide a link to the Federal Court of Australia’s Annual Report 2023-24, which was tabled in Federal Parliament in the Senate on 28 October 2024 and House of Representatives on 4 November 2024. Readers might notice that this is a new-look format for our Annual Report which aims to provide readers with a clear understanding of the Court’s work, including highlighting the work of each of the National Practice Areas. I hope readers will find it informative and interesting. Several Federal Court staff have put a great deal of time and effort into the new-look Annual Report, and the Court is grateful to them.
From 1 September 2024, a pilot program of the National General Protections List commenced for an initial period of eight months. The List will take place virtually, with the first List hearing commencing on 4 October 2024. The profession was advised of the pilot by a Notice to the Profession on 3 July 2024. The purpose of the List is to allow the initial case management of proceedings filed under the general protections provisions of the Fair Work Act 2009 (Cth) to generally be undertaken by Registrars of the Court. The Court will continue to monitor the pilot program and consult with relevant professional groups. The Court welcomes any feedback in respect of the pilot program, which can be sent to GeneralProtectionsList@fedcourt.gov.au.
On 14 October 2024, the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. An inaugural sitting of the Tribunal was held in Court One at the Federal Court’s Victorian Registry to commemorate its commencement. The Attorney-General, the Honourable Mark Dreyfus AC KC, attended and spoke, as did several other professional representatives, and the new President, the Honourable Justice Kyrou. A link to the sitting can be found on the Administrative Review Tribunal’s YouTube page here. The commencement of the Tribunal meant that the Federal Court needed to amend several of its Practice Notes on the same day.
On 30 October 2024, the Court issued the Next Generation Initiative Practice Note (GPN-NGI) and accompanying Notice to the Profession. The Practice Note recognises that the next generation of advocates will benefit by being given opportunities to have substantive speaking roles in hearings. Where two or more counsel are briefed, the Court encourages parties, subject to its discretion, to provide appropriate opportunities for junior counsel to take on substantive speaking roles in first instance applications, trials and appeals. The Notice to the Profession also explains that the Court will be collecting high level data on substantive speaking roles allocated to junior counsel during Full Court and Appellate sittings. General results (without identifying details) will be published in the Federal Court’s Annual Report for 2024-25.
The Court also issued a Notice to the Profession in relation to the Corporations List. It describes the operation of the Corporations List in the Federal Court’s Registries in New South Wales, Victoria, Queensland and Western Australia, and explains why there will not be a Corporations List continuing in South Australia.
On 26 November 2024, the Court farewelled Justice David Yates. Justice Yates has been a member of this Court for almost 15 years and has served the Australian community with distinction. I thank Justice Yates for his service, and wish him the very best in his retirement.
There have recently been announcements of the appointments of senior counsel in several States. I congratulate all those appointed as senior counsel and wish them very well in this next chapter of their careers.
Finally, the Federal Court annual registry tour will be commencing from April 2025. I will reach out to the Law Council, Australian Bar Association and the local law societies and bar associations to arrange for our annual meeting and lunch with the profession. I am looking forward to productive discussions with you all. During these registry visits, I am also intending to meet with university students in each State and Territory to draw attention to the Federal Court’s jurisdiction in the Australian justice system, and to encourage students to consider future career opportunities at the Federal Court. Students will have an opportunity at these sessions to meet with me, local registry Judges, the District Registrar in each location and current local associates.
I hope you all manage to take some time away from work over the holiday period and I wish readers a happy and safe festive season.
I am pleased to be able to provide a contribution to the National Brief on behalf of the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2).
2024 has been a year of great energy and achievement for the Courts across the family law, general federal law and migration jurisdictions. The Courts have continued on their ambitious reform agenda to ensure that we are delivering the best possible justice system we can to all Australians interacting with our many federal jurisdictions. These Courts are the two that every day Australians are most likely to come into contact with, be it the fair work jurisdiction, the bankruptcy jurisdiction or the family law jurisdiction.
The Courts’ clearance rate in family law has remained above 100% for the third successive financial year, meaning the Courts’ backlog of family law cases has continued to reduce.
Since adopting the central case management pathway in September 2021 more than 26,000 applications for final orders (or substantive family law cases) have been finalised. For those cases, the median time from filing to finalisation is only 6.7 months, with an average attendance rate of only 3 court events. Of those 26,000 final order applications finalised, approximately 76% have been resolved within 12 months of filing. Many cases have had the benefit of an innovative, refined and safe family dispute resolution or conciliation process, with fantastic settlement results.
As a result of those combined efforts, the total number of cases pending has reduced by over 25%, or more than 5400 cases, with the number of family law cases pending over 3 years old decreasing by an impressive 40%.
The appellate jurisdiction of the FCFCOA (Division 1) has also been operating at its most efficient, with the average time from filing to finalisation of an appeal continuing to reduce, from 9 months 3 years ago to 4.2 months in financial year 2023-24.
The docket sizes of Judges of the FCFCOA (Division 2) across all areas of jurisdiction have been reduced from an average of more than 330 cases to around 70 cases, assisting judges to have the time and capacity to focus on the most complex family law, general federal law and migration proceedings that are now routinely filed in this court.
In FY2023-24 the FCFCOA (Division 2) received 7,655 filings in total across the Court’s general federal law (e.g. Fair Work, bankruptcy, intellectual property, consumer law, human rights jurisdictions) and migration jurisdictions, demonstrating the significant role this Court plays in the administration of federal law in Australia. The Court achieved a clearance rate of 99% in general federal law, with 78% of matters finalised within 12 months. In the migration jurisdiction, a high volume of filings have continued to be received. Despite that, the Judges have worked incredibly hard to deliver judgments in a timely way, with 85% of migration judgments in FY23-24 delivered within 3 months of the hearing. This is in circumstances of jurisprudence that is increasingly complex and often-changing.
The FCFCOA (Division 2) was successful in advocating for the need for additional resourcing to support the Court’s migration jurisdiction, with the appointment of 10 dedicated migration Judges in the second half of 2024. Another four migration Judges will be appointed from April 2025.
Despite the increase in the number of Judges exercising jurisdiction in general federal law and migration, the number of appeals filed from decisions of Judges of the FCFCOA (Division 2) in these jurisdictions has been decreasing year on year for the last five years.
More fulsome information about the Courts’ performance is contained in the Annual Reports for financial year 2023-24, published in November 2024. The Courts are keen to ensure that their operations and performance are accountable and transparent for the profession and the public.
Of course, data is only one measure of performance, and the Courts are also focused on the quality of decision making, delivering effective justice, and ensuring appropriate engagement with the legal profession and other stakeholders.
The Courts have been grateful to engage with the profession appropriately including as part of continuing legal education opportunities, conferences and Readers’ Courses throughout 2024. In the last financial year alone, the Courts’ Judges attended and presented at more than 230 external professional education events, including regional, national and some international conferences, CPDs and seminars. The Courts’ Registrars also delivered many CPD and educational opportunities to the profession, including junior members of the profession.
In 2025, the Courts are looking forward to progressing a number of key initiatives, including the following:
Our operations and the administration of these courts is work in progress, and we adopt an ethos of continuous improvement. Suggestions through the national or local Bar Associations are welcome.
As the year draws to a close, I would like to particularly acknowledge the support of the two excellent Deputy Chiefs, the Hon Deputy Chief Justice Robert McClelland AO and her Honour Deputy Chief Judge Patrizia Mercuri, and the National Case Management Judges, National Migration Judge and Case Management Judges, who provide Judges across the Courts and myself with exceptional support, guidance and leadership.
I would like to also express my gratitude to members of counsel across the country for their tireless efforts as officers of the court, as independent advocates and professionals of the highest calibre. I hope you each take time over the December/January period to reset and spend quality time with family and friends, and I wish you very best for 2025.
The Hon William Alstergren AO
Chief Justice
The government is inviting applications from suitably qualified individuals with either experience in migration or protection matters, or with general administrative review skills that are adaptable to the migration and protection jurisdictional areas.
Appointments will be for a term of up to 5 years. Eligible candidates will be assessed as suitable for appointment through a transparent and merit-based process, conducted in accordance with the requirements in the Administrative Review Tribunal Act 2024 and the Administrative Review Tribunal Regulations 2024.
The selection criteria, candidate information pack and link to apply can be found on the Attorney-General Department’s website. Applications close at 5 pm AEDT on Wednesday 8 January 2025.
Further information about this reform is available on the Attorney-General Department’s website. The ART website contains other useful information about the new Tribunal.
Questions about the recruitment process can be directed to ARTAppointments@ag.gov.au.
This publication is intended to provide barristers with a practical guide to best practice in respect of their obligations pursuant to the ‘cab rank’ rule: the duty of counsel to accept any brief which is offered to them at a reasonable fee, provided it is in a field in which the counsel ordinarily practises and they are not otherwise committed.
Reviewed by Tom Bathurst AC KC, Róisín Annesley KC and Dominic Fawcett.
The Law Council of Australia’s Federal Dispute Resolution Section invites members to attend the third annual Commonwealth Law Conference.
The conference will be held in-person in Sydney on Friday, 28 February 2025.
The conference will showcase a line-up of leading experts in federal law, including members of the judiciary, and prominent barristers and solicitors. Chief Justice Stephen Gageler AC and Dr Stephen Donaghue KC will each provide a keynote address. Other sessions will address:
To learn more about the conference, click here.
For early bird registration (by 20 December 2024), click here.
Only one place remains to register for the Civil Brief at the upcoming 2025 Advanced Trial Advocacy Intensive. The Criminal Brief is now fully subscribed.
This course, to be held in Brisbane from 20 to 24 January 2025, provides realistic briefs in both criminal and civil, allowing you to gain valuable experience with senior coaches to develop your advocacy skills in real court settings.
Groups are small and the coach-to-participant ratio is high. This one-week residential Trial Advocacy Intensive enables you to work closely with judges and experienced counsel which will include Federal and Supreme Court Judges, senior Australian counsel and International counsel as well as performance and voice coaches with expertise in voice, movement and impact.
The Intensive involves discussion and comment on each aspect of trial performance. This course will advance your skills as an experienced barrister and will focus on developing your strengths in addressing, examining-in-chief and cross examining.
For more information and to register, click here.
For all enquires please contact the ATC Secretariat at cpd@qldbar.asn.au or phone (07) 3238 5100.
Join the Commonwealth Lawyers Association at the Hilton Hotel and Conference Centre in St Julian's Bay Malta, for this prestigious biennial event in the legal calendar.
Under the over-arching theme of "Commonwealth Lawyers - fit for the future!", the program of 5 daily streams reflects the latest challenges, issues and trends faced by those in the Commonwealth legal fraternity.
Build global and regional professional networks, share best practice and innovations and develop the warm friendships that are at the heart of this congress of practicing lawyers, justice leaders, academics and members of the judiciary.
Click here for more information.
Message from the Chief Justice of the Federal Court of Australia, the Hon Chief Justice Mortimer
2025 ABA Advanced Trial Advocacy Intensive - Registrations Now Open
ABA Taxation Committee CPD: Recent Decisions and the Onus of Proof in Tax Disputes
The International Law Section South Pacific essay competition is now open
The Law Society of Singapore Trial Advocacy Course 2024
Dear Colleagues,
It is my pleasure again to write to you in relation to those matters that the Australian Bar Association is involved in on your behalf.
Anti-Money Laundering Proposed Legislation
Whereas previously it had been thought that the Bar would be untouched by the reforms around anti-money laundering legislation, it has become apparent in the last few weeks that this is no longer the case with the publishing of the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024.
If enacted in this current form, the Act would regulate areas of practice that at least sections of the Bar routinely advise on and appear in relation to, and many more occasionally are engaged in. Were that to be the case, it would be necessary for individual barristers to make a decision as to whether to continue to be willing to take briefs in such matters, and if so to meet the, for sole practitioners, quite onerous responsibilities and requirements of the proposed legislation.
At the moment I am making representations at the departmental level to endeavour to demonstrate that in its current form in relation to barristers the proposed legislation would offer no meaningful protection against money laundering, but would substantially reduce the pool of barristers willing to perform work in particular but significant areas of legal advice and appearance work.
I will report back to you when I have more details in this regard.
Law Reporting Council for Australia
The ABA continues to work towards the creation of this body, and to engage with the mainstream legal publishers in this regard.
The incorporation of the entity is in its latter stages, after which the work upon taking steps to enhance access to reports of matters in the Federal jurisdiction, including as to costs, can be pursued.
Best Practice Guidelines
A number of Best Practice Guidelines are shortly to be published.
Cybersecurity
The Cybersecurity Committee continues to work on this important issue for the Bar, and I am looking forward to reporting further on this to you in due course.
Proposed taxation changes to adversely affect the pension entitlements of current, former and future Commonwealth and Territory judicial officers
The ABA continues to advocate for the Commonwealth and Territory judges in this regard. The progress of the legislation does not appear to have been as rapid as had been initially expected, and there remains hope that this unsatisfactory feature of the bill may not get enacted.
Joint conference with the New Zealand Bar Association in Queenstown
I am pleased to report that the joint ABA/NZBA conference in Queenstown was a complete success. The New Zealanders are looking forward to a joint conference in Australia in a couple of years’ time.
I would particularly like to thank the Chair of Conferences, Sam Hay KC, the CEO of the ABA, Professor Greg Tolhurst, the CFO of the ABA, Ms Kelsey Rissman, and the EA to the ABA, Ms Liz Barr, for all of their assistance in making the conference run so smoothly. I would also like to express my appreciation to the Australian practitioners, including the serving and retired judges, who made such a significant contribution to the quality of the program.
The year continues to be productive for the Federal Court. The Full Court period concluded on 30 August 2024, with many judges travelling across the Court’s different registries. Preparations are now underway for the final Full Court sitting period in November 2024, before the Court transitions to three Full Court sitting periods in 2025.
First, I want to warmly welcome two new appointments to the Federal Court of Australia: Justice Jane Needham, who is based in Sydney and Justice Stephen McDonald, who is based in Adelaide. They were sworn in on 5 and 8 July 2024 respectively, and both had their public welcomes on 12 July and 26 August 2024 respectively.
On behalf of the Judges, Registrars and staff of the Federal Court, I congratulate Justices Needham and McDonald on their appointments, and I am confident that they will serve the Australian community with distinction.
Following Royal Assent of the Attorney-General’s Portfolio Miscellaneous Measures Act 2024 on 12 June 2024, the Court’s criminal jurisdiction was expanded to enable it to hear and determine a range of summary and indictable offences relating to conduct under the Australian Securities and Investments Commission Act 2001 (Cth), the Corporations Act 2001 (Cth), the National Consumer Credit Protection Act 2009 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth). The Court now has wide-ranging jurisdiction for federal ‘white-collar’ criminal offences and is equipped for future jury trials with purpose-built jury courtrooms, including a new courtroom in the New South Wales registry.
On 12 August 2024, the Court published two updated General Practice Notes that concern foreign judgments (GPN-FRGN) and overseas service and evidence (GPN-OSE). A Notice to the Profession was issued on 13 August 2024 advising of the updates and is available to view on the Federal Court’s website here. In short, the updated foreign judgments practice note:
The updates to the overseas service and evidence practice note bring it in line with certain changes made to the Federal Court Rules 2011 (Cth), introduced by the Federal Court Legislation Amendment Rules 2022 (Cth) and minor amendments pursuant to the Federal Court Legislation Amendment Rules 2024 (Cth).
After signing a Memorandum of Understanding in May 2024, the Federal Court was pleased to welcome a large delegation from the Supreme Court of the Philippines in August 2024. The Philippines delegation, comprising Chief Justice A. G. Gesmundo, Associate Justice Maria Filomena Singh, Associate Justice Ricardo R. Rosario, Philippines regional court coordinators, IT staff and representatives from DFAT and the FAIR Justice Program were hosted in the Melbourne Registry for one week. Together with Federal Court Judges, Registrars and relevant Federal Court staff, the delegation engaged in a variety of knowledge sharing sessions, including on the Federal Court’s innovative Digital Court Program, general Court practice and procedure and an overview of Registry and Corporate Services.
The visit from the Philippines delegation came after a delegation from the High Court of the Solomon Islands, led by Chief Justice Sir Albert Palmer on 18 and 19 July 2024. As part of the Court’s involvement in the Pacific Judicial Integrity Program, the Solomon Islands visited the Melbourne Registry to learn about the Court’s implementation of online filing and file management systems and how the introduction of these practices has increased both the capacity and efficiency of the Court.
I also recently had the pleasure of opening the 2024 Minds Count Annual Lecture in Sydney, a forum for the legal community to come together and discuss issues collectively faced by the profession regarding mental health and psychological health and safety. Justice Jaqueline Gleeson delivered the keynote address at the Lecture entitled “When Minds are Traitors”. The audience very much enjoyed her Honour’s lecture, and there was a thought-provoking panel session afterwards with three Victorian Judges, facilitated by the Director of the Minds Count Foundation, David Field: the Honourable Associate Justice Mary-Jane Ierodiaconou (Supreme Court of Victoria), his Honour Judge Frank Gucciardo (County Court of Victoria) and his Honour Magistrate Andrew Sim (Magistrates' Court of Victoria).
The Court’s Judges continue to be engaged with the profession through various seminars and lectures. Justice Perry delivered the keynote address at the Sparke Helmore Commonwealth Executive Forum in Canberra where her Honour addressed the impacts of artificial intelligence on law, government and the administration of justice. Additionally, Justice Lee attended the 2024 Women in Media Australia National Media Conference and spoke about society and the rule of law and its intersection with the media. Justices Charlesworth, Katzmann and Horan also travelled to Canberra to host a sold-out event for practitioners on the essentials of the Federal Court’s practice, including key aspects of how matters are run and identifying when the Federal Court might be the best forum for a particular matter. The last event, in particular, is the kind of interaction between the Court and the profession which I hope to encourage and facilitate on a regular basis around the country, including and perhaps especially in Registries where there is currently no resident Judge.
The Federal Court also hosted a Ceremonial sitting of the Full Court to receive the announcements of appointments of Senior Counsel in and for the State of Victoria in August 2024. The Court congratulates the Senior Counsel on this significant milestone in their careers and looks forward to celebrating appointments to Senior Counsel in other States in due course.
Finally, the Court’s Annual Report will soon be published. I hope all members of the profession enjoy its new look, and find the information in it accessible and interesting.
Registrations have opened for the 2025 Advanced Trial Advocacy Intensive, to be held in Brisbane between 20 and 24 January.
This course provides realistic briefs in both criminal and civil, allowing you to gain valuable experience with senior coaches to develop your advocacy skills in real court settings.
Groups are small and the coach-to-participant ratio is high. This one-week residential Trial Advocacy Intensive enables you to work closely with judges and experienced counsel which will include Federal and Supreme Court Judges, senior Australian counsel and International counsel as well as performance and voice coaches with expertise in voice, movement and impact.
The Intensive involves discussion and comment on each aspect of trial performance. This course will advance your skills as an experienced barrister and will focus on developing your strengths in addressing, examining-in-chief and cross examining.
Registrations close Friday, 29 November 2024.
For more information and to register click here.
For all enquires please contact the ATC Secretariat at cpd@qldbar.asn.au or phone (07) 3238 5100.
The Australian Bar Association Taxation Committee invites you to a panel discussing the onus and standard of proof in tax disputes and related issues in light of recent Full Court and first instance decisions.
Kristen Deards SC will chair a panel including the Hon Jennifer Davies KC, Gareth Redenbach and Ermelinda Kovacs discussing issues relating to the onus and standard of proof and strategies related to reducing cost, complexity and risk in cases when acting for both taxpayers and the Commissioner.
Click here to register to attend via Zoom. Click here to register to attend in person.
CHAIR: Kristen Deards SC (Banco Chambers and Chair of the Australian Bar Association Taxation Committee)
SPEAKERS: The Hon Jennifer Davies KC (Level 31 Aickin Chambers), Gareth Redenbach (Level 28 Aickin Chambers), Michael Cosgrove (New Chambers)
CPD POINT: This seminar may be eligible for 1 CPD point under State CPD programs. It is the responsibility of the individual member to determine whether CPD points can be earned for an attendance of an event hosted by the ABA, as the mandatory continuing professional development requirements vary between each state and territory. Please refer to your relevant state or territory law society in advance of the event for further information.
The 12th annual Australian Arbitration Week (AAW) will take place in Brisbane on 13-18 October 2024.
Attendees will enjoy what they have come to expect of AAW, a week of high quality, dynamic and diverse panel discussions complemented by social events to connect and reconnect with friends and colleagues offering the genuine and warm hospitality Australia is known for.
The well-established lead event of AAW, the ACICA & CIArb International Arbitration Conference, is entitled Powering the Future and Going for Gold: Is Arbitration Ready? The theme looks to the future of arbitration, the opportunities and challenges major sectors, such as energy and construction face, how sports arbitration can propel us forward, and how the fundamental elements of arbitration can be developed to power us into the future.
AAW aims to bring together communities and address issues pertinent to the Australia and the wider region with a global lens. AAW travels to a different state each year, and is returning to Brisbane for the first time since 2019.
Click here for more information.
The International Law Section of the Law Council of Australia provides a focal point for lawyers to engage in interesting issues relating to international law. The ILS provides opportunities for its members to network, engage and contribute to discussions on contemporary international law issues. In 2024, the ILS seeks to continue the momentum of its South Pacific Essay Competition. We invite you to submit your essays relating to the topic below by 31 October 2024.
Essays are to explore "An International Issue of Significance which has Legal Ramifications for the Pacific"
Candidates have the option of submitting an original work not exceeding 3,000 words or a previously published work of up to 5,000 words (please note whether your piece is previously published).
Candidates will be asked to authorise their essay for publication by the International Law Section, which may publish the winning essay on the Law Council website.
The winner will receive a prize value of $500.00 (AUD).
Click here for more information, including eligibility guidelines.
The Advocacy Committee of The Law Society of Singapore is proud to present ‘The Law Society Trial Advocacy Course 2024’ - the first programme of its kind under the new Rules of Court 2021.
This course is specifically designed for litigation lawyers with a minimum of 3 years’ experience in handling litigation matters, and who are interested in further enhancing their advocacy and trial skills. It provides a unique opportunity for litigation lawyers to receive personalised coaching from Silks, Senior Counsels, and senior litigation practitioners, as well as from the local and international faculty.
The course is an intensive 2.5-day programme which will require participants to prepare and perform as advocates in court, handling case analysis, interlocutory applications, opening and closing speeches, as well as examination and cross-examination of witnesses. The highlight of the course will culminate in a mock trial where participants, working in pairs, will conduct examination and cross-examination of witnesses and deliver oral submissions. At the end of the mock trial, the presiding Judge will provide an extempore judgment along with comments and feedback on the participants’ performance.
The teaching methodology used is the NITA methodology which is widely accepted in numerous jurisdictions as an effective as well as preferred method for teaching advocacy. Participants will, over the course of 2.5 days, perform as advocates, with each performance critiqued by local and international members of the faculty to provide individualised feedback to each participant on how their performance could be improved or enhanced. Each performance will also be recorded on video and reviewed individually with each participant with a view to improving matters of style and delivery.
In the run-up to the 2.5-day programme, participants will attend a series of 4 online seminars that will cover various aspects of advocacy, including the elements of persuasive advocacy, the ethics of advocacy, advocacy in interlocutory applications, opening and closing statements at trial, and examination and cross-examination of witnesses.
For optimal interaction, this course is limited to 24 participants.
Click here for more information and registration.
Join the Commonwealth Lawyers Association at the Hilton Hotel and Conference Centre in St Julian's Bay Malta, for this prestigious biennial event in the legal calendar.
Under the over-arching theme of "Commonwealth Lawyers - fit for the future!", the program of 5 daily streams reflects the latest challenges, issues and trends faced by those in the Commonwealth legal fraternity.
Build global and regional professional networks, share best practice and innovations and develop the warm friendships that are at the heart of this congress of practicing lawyers, justice leaders, academics and members of the judiciary.
Click here for more information.
The Northern Territory Bar Association celebrated 50 years of the Independent Bar of the Northern Territory with a gala dinner on 9 August 2024. The dinner coincided with the High Court of Australia sitting in Darwin for the first time in almost six years.
The ACT Bar marked its 60th anniversary at its Bench and Bar Dinner on Friday 6 September. The commemorative booklet is available online.
Also on Friday 6 September was the QLD Bar’s Bench and Bar Dinner, by all accounts a glittering night.
Message from the Chief Justice of the Federal Court of Australia, the Hon Chief Justice Mortimer
Trans-Tasman Bar Conference 2024: The Timeless Value of Insight & Wisdom
Appointment of Members to the Administrative Review Council
Human Rights Law Trans-Tasman Conference
Updates to the High Court Registry Service Charter
Commonwealth Lawyers Association Webinar Program
Australian Academy of Law Annual Essay Prize
The 24th Commonwealth Law Conference 2025
Annual federal courts and tribunals fee increases from 1 July 2024
Colleagues,
I am delighted to have the opportunity to inform you of those matters that the ABA has been actively involved in on behalf of the national Bar since my last President’s Message
Proposed taxation changes to adversely affect the pension entitlements of current, former and future Commonwealth and Territory judicial officers
It has been necessary for me to speak on behalf of the Bar in relation to the proposal to adversely affect the pension entitlements of Commonwealth and Territory judges. I consider this matter of such importance that I have shared my correspondence with the membership – see here; and here.
Unfortunately, the complete lack of consultation or engagement around this topic has left me with no alternative but to approach the matter in this way. This is a large, institutional issue for the rule of law in Australia. Rightly, the Commonwealth and Territory judiciary has not engaged in the public debate, but that emphasises the need for the Bar to take up the argument against what is, in truth, an institutional attack on the independence of the Commonwealth and Territory judiciary.
I will keep you informed of the progress of this matter.
Commonwealth civil and criminal fees
I recently met with Vice-President Michael Izzo SC and Michael Johnson, Assistant Secretary, Office of Legal Services Coordination, and Kathryn Haigh, First Assistant Secretary, Legal Services and Royal Commissions Division, regarding the rates paid by the Commonwealth in civil matters. Michael Izzo and myself emphasised how uncommercial and inappropriate the rates were, both as to total amount and the formulation of charging.
Unsurprisingly, whilst acknowledging the criticism, no commitment was given by the OLSC in relation to altering the rates. However, it has been agreed that a periodic meeting will be held between representatives of the ABA and the OLSC to seek to address the profession’s concerns in this regard. Another meeting has already been organised for the end of January next year.
I also met recently with the newly appointed Commonwealth Director of Public Prosecutions, Raelene Sharp KC. That was a very productive meeting with the Commonwealth Director. The CDPP has been proactive in ensuring the rates paid by the Commonwealth for counsel fees are reviewed, and to endeavour to make them realistic against rates paid outside the CDPP for comparable work.
The CDPP is also taking steps to proactively promote and facilitate members receiving briefs from the CDPP. I would encourage anybody who is interested in this area of practice to take up that opportunity.
I will be meeting with the Commonwealth Director again.
Cybersecurity
I have previously written to you regarding the exposure we have as practitioners in this regard.
A working group of Ben Kremer SC (chair), Andrew Luchich, Michael Seelig, Jennifer Flinn, along with Brendan Read and Tony Vizza of KordaMentha, has been established to address this real area of risk for us as practitioners. I will report back to you in relation to that shortly.
Federal Incorporated Council of Law Reporting
I am pleased to report that steps are well underway to have the Federal Incorporated Council of Law Reporting established with a view to endeavouring to facilitate more appropriate and cost-effective access to law reports.
Best Practice Guidelines
The Best Practice Guidelines continue to be promulgated, and are now being, when finalised, uploaded to the ABA website. I would encourage you to consider the use to which you might be able to make of them in practice.
Joint conference with the New Zealand Bar Association in Queenstown
I am pleased to report that the joint conference with the New Zealand Bar Association in Queenstown in August is now a sell-out. I look forward to meeting members at it. I would particularly like to thank the Chair of Conferences, Sam Hay KC, and the CEO, Professor Greg Tolhurst, for their excellent work in this regard.
This year continues to be productive for the Federal Court. I have now completed registry visits to each of the Federal Court’s registries with the Court’s CEO and Principal Registrar, Sia Lagos, and with members of the Court’s Executive. The discussions with the profession were very valuable and I look forward to continued engagement going forward.
On 6 May 2024, the Court farewelled Justice Anthony Besanko. Justice Besanko was appointed to the Federal Court on 3 April 2006, after approximately four and a half years of service on the Supreme Court of South Australia. During his service as a Federal Court Judge, Justice Besanko also held additional judicial responsibilities including as a Judge then Chief Justice of the Norfolk Island Supreme Court and other commissions on the ACT Supreme Court. The Federal Court has been fortunate to have a person of his intellectual capacity, wisdom and dedication serve for 18 years on Federal Court of Australia. I sincerely thank Justice Besanko for his service to the Australian community and I wish him the very best in his retirement.
The Federal Court Legislation Amendment Rules 2024 were registered on 4 June 2024 and came into effect on 5 June 2024. An announcement was issued on 4 June 2024 and is available on the Federal Court’s website here. These amendments:
In March 2024, Justice Kyrou and Justice Hespe (President and Deputy President of the AAT) delivered plenary addresses at the Whitlam Institute CPD seminar on “A New System of Federal Administrative Review”. The CPD event was held at the Melbourne Registry in Court 1. A seminar with the Commercial Bar (Intellectual Property & Trade Practices section), in collaboration with the Federal Court, titled “The Bar & Bench: Efficient management of intellectual property disputes” was recently also hosted at the Melbourne Registry. The panel comprised Justice Burley, Justice Rofe and Adrian Ryan SC with insights also offered by Senior National Judicial Registrar Alison Legge.
In my meetings with the profession as part of my visits to each Registry earlier this year, I emphasised that the Court welcomes opportunities to collaborate with the profession including in hosting events and seminars in our courtrooms.
I have recently had the pleasure of delivering the keynote address at the Queensland Law Society Symposium in March 2024 and more recently at the AIATSIS Summit in Melbourne where I chaired a panel discussion on the next 30 years of the native title system. The panel included Kevin Smith, President of that National Native Title Tribunal, Katie Kiss, Aboriginal and Torres Strait Islander Social Justice Commissioner, Tony McAvoy SC, Tricia Stroud, Registrar of Aboriginal and Torres Strait Islander Corporations, Jamie Lowe, CEO of the National Native Title Council, and Joe Morrison, Group CEO of the Indigenous Land and Sea Corporation.
Justice Wigney also recently travelled to Vanuatu to participate in the Advanced Judicial Officers’ Fraud and Corruption Workshop for the Pacific Judicial Integrity Program, funded by the Department of Foreign Affairs and Trade. Justice Wigney coordinated a workshop with Justice Teresa Berrigan of the Papua New Guinea Supreme and National Courts.
On Wednesday 15 May 2024, the Federal Court of Australia and the Supreme Court of the Philippines signed a Memorandum of Understanding (MOU).
The signing of the MOU took place virtually and will promote increased cooperation between the Courts. It was signed by Chief Justice Gesmundo at the Supreme Court of the Philippines and I signed the MOU from the Sydney registry of the Federal Court of Australia. Arising from the MOU, I will set up regular meetings/consultations with Chief Justice Gesmundo and work has already started to set up working groups in collaboration with the Supreme Court of the Philippines in the areas of competition law and class actions law. Justice Halley and Senior National Judicial Registrar & District Registrar Paul Farrell will represent the Federal Court in the competition law working group. Justice Murphy and Senior National Judicial Registrar Alison Legge are the Federal Court’s representatives in the class actions law working group.
In June 2024, members of the Federal Court will be travelling to Indonesia to celebrate 20 years of working with the Supreme Court of Indonesia under Memorandum of Understanding. A new MOU for the next five years will also be signed. The Federal Court looks forward to continuing to strengthen this longstanding relationship with the Supreme Court of Indonesia.
Finally, and of interest to readers of this publication, the Court is pleased to have launched an oral history podcast entitled “Lives and Times of Judges of the Federal Court of Australia”. Interviews with the Honourable Michael Black AC KC, the Honourable William Gummow AC KC and the Honourable James Allsop AC SC are published on the Federal Court website. The podcasts are the work of noted writer, arts journalist and podcaster, Fiona Gruber. Over the coming months, Ms Gruber will interview the Honourable Robert French AC, and the Honourable Susan Kenny AM KC. Ten podcasts are planned over the next year.
The upcoming Trans-Tasman Bar Conference in August 2024 is now sold out! Details are being finalised, and all information can be found at the conference website here. If you would like to join the waitlist, please submit your details here.
The Australian Government is seeking applications from suitably qualified persons for appointment as members of the Council.
The Administrative Review Council
The Administrative Review Council is an independent statutory authority that was first established under the Administrative Appeals Tribunal Act 1975 as a key element of the administrative review system. The Council, which has not operated since 2015-16, will be re-established under section 246 of the Administrative Review Tribunal Act 2024 (ART Act).
The Council will be an expert body to monitor, advise on and promote the operation and integrity of the Commonwealth administrative review system. The functions of the Council include to:
The Council will strive for excellence in research and analysis ensuring that the Council’s reporting and recommendations promote a system of administrative law and administrative decision making that is as effective as it can be. The Council’s publications will be relied upon to support better decision making across government.
The Council membership will comprise a Chair and up to 10 members appointed by the Governor-General, in addition to ex-officio members. The Chair and member appointments will take effect following commencement of the ART Act. The Council will be supported by a Secretariat within the Attorney-General's Department.
Further information about the Council and about the new system of federal administrative review is available at the Attorney-General's Department website.
Information for applicants
The appointments will be on a part-time basis for a term of up to five years. Remuneration and allowances for the positions are set by the Remuneration Tribunal. Information about the position, including remuneration, eligibility and selection criteria, and details on how to apply for appointment as a member, is available on the Attorney-General’s Department website Careers page – https://www.ag.gov.au/about-us/careers/statutory-appointments.
Applications close at 5:00pm AEDT on 26 July 2024.
Enquiries can be directed to appointments@ag.gov.au.
Congratulations to the members of the profession who received awards in the Order of Australia:
Appointed as an Officer of the Order of Australia (AO)
Appointed as a Member of the Order of Australia (AM)
Appointed as a Member of the Order of Australia in the Military Division
Medal of the Order of Australia in the General Division (OAM)
The first Human Rights Law Trans-Tasman Conference will be held in Queenstown, New Zealand on 12 and 13 August 2024, hosted by NZLS CLE.
This two-day case law conference will explore the synergies and differences in the protection of human rights in New Zealand and Australia. Participants will learn how human rights are protected in law, forge valuable connections and share their knowledge in this increasingly expanding dynamic area of law.
The conference will provide papers from leading judges, practitioners and academics from both sides of the Tasman covering topics such as:
The conference will closely examine the New Zealand Bill of Rights Act 1990 and Human Rights Acts in the ACT, Victoria and Queensland, providing a timely reflection on the case law that has developed under these statutes.
Conference chairs:
Keynote speakers:
Click here for more information and registration.
The High Court Registry publishes a Charter which describes the commitment of staff of the Registry to the persons who use the Registry.
The Registry Service Charter outlines for Registry users the role and functions of the Registry, the standard of service to be expected when interacting with Registry staff, and information about the complaints process and how to provide feedback.
The Service Charter has recently been updated to reflect the current operations of the Registry. It can be accessed via the High Court of Australia website.
To Court or Not? The Case for Arbitration?
Thursday 25 July 2024 – 7pm AEST
Registration is now open for the Young Commonwealth Lawyers Association (YCLA) webinar aimed at a pan profession audience of practitioners, students of law or those wishing to gain insight and understanding of implementing mediation by one of the leading professionals in the field.
The YCLA welcome Gregory Vijayendran SC, the CLA’s Council Member for Singapore and Fellow at the Singapore Institute of Arbitrator to present a 60 minute Webinar on “To Court or Not? The Case for Arbitration” with Maximillian Taylor, the YCLA’s Lawyer in Training, England & Wales representative moderating.
Click here for more information and registration.
Handling Privy Council Appeals
Thursday 25 July 2024 – 11:30pm AEST
The Commonwealth Lawyers Association invites you to join us for a discussion chaired by Lloyd De Vincenzi, and led by Richard Clayton KC, Desiree Artesi and Louise di Mambro OBE with a focus on “Handling Privy Council Appeals”.
Our panellists Desiree Artesi will be exploring ‘constituting an appeal’, particularly focusing on composition of panels, instructing local attorneys vs PC agents and Appeals is of right, with leave of Court of Appeal from local court.
Richard Clayton KC will address ‘the appeal hearing’, specifically drafting statement of facts and issues, précis and chronology, drafting the written case, appeals of law vs appeals of fact and the principle of concurrent findings of fact, conducting the hearing for the Appellant, conducting the hearing for the respondent, reply submissions, dealing with costs after judgment.
Finally, Louise di Mambro OBE will explore the ‘rule changes’. New rules are being prepared for the JCPC and that these include some radical changes, particularly exploring: efiling via a portal for new cases, service postponed, new tighter timetable for cases, case management, publication of parties’ documents on the JCPC website.
Click here for more information and registration.
The Australian Academy of Law invites ABA members to submit an essay for its 2024 Annual Essay Prize.
The Prize is open to anyone, wherever resident, who is studying or has studied legal subjects at a tertiary level, or who is working or has worked in a law-based occupation. There is no limit by reference to the age or seniority or experience of, or position held by, a person who may submit an entry. Accordingly, judicial officers, legal practitioners, legal academics and law students are all eligible to submit an essay.
The amount of the Prize is $10,000.
The essay topic for the Prize in 2024 is as follows:
“Taking into account the decision of the High Court in NZYQ v Ministre for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 and the response by government to it, what is the law of preventative detention in Australia: Commonwealth, State and Territory? Is it fit for purpose? If not, how and by reference to what principles should it be reformed?”
The length of the essay to be submitted is a maximum of 8,000 words (excluding the abstract).
The deadline for submission of an essay is 31 August 2024 and this time limit is strictly observed. Essays should be submitted to the Secretariat at the Australian Academy of Law: aalsecretariat@academyof.aw.org.au.
Click here for more information about submissions and previous winners.
Join the Commonwealth Lawyers Association at the Hilton Hotel and Conference Centre in St Julian's Bay Malta, for this prestigious biennial event in the legal calendar.
Under the over-arching theme of "Commonwealth Lawyers - fit for the future!", the program of 5 daily streams reflects the latest challenges, issues and trends faced by those in the Commonwealth legal fraternity.
Build global and regional professional networks, share best practice and innovations and develop the warm friendships that are at the heart of this congress of practicing lawyers, justice leaders, academics and members of the judiciary.
Click here for more information.
Fees payable in the federal courts and tribunals will increase from 1 July 2024 to reflect changes to the consumer price index over the past financial year. This is an automatic increase provided for by the relevant regulations.
Friday 10 May marked the bicentennial of the Tasmanian Supreme Court, the oldest Supreme Court in Australia. The event was marked with a ceremonial sitting of the Court and the launch of From Convicts to Computers: Two Hundred Years of the Tasmanian Supreme Court by Justice Stephen Estcourt AM.
The NSW Bench and Bar Dinner took place on Friday 10 May in the Grand Ballroom of the Hyatt Sydney. The guest of honour was the Hon. Justice Robert Beech-Jones of the High Court of Australia. Also speaking were Stuart Lawrance SC of Tenth Floor Chambers and Rose Khalilizadeh of Public Defenders Chambers.
The Hon. Justice Robert Beech-Jones – Tom Fewchuck Photography
The Supreme Court of NSW celebrated its own bicentennial on Friday 17 May with a ceremonial sitting, which can be streamed here.
The Victorian Bar Dinner was held at the National Gallery of Victoria just over a week later, on Saturday 18 May. The guest speaker was once again the Hon. Justice Robert Beech-Jones.
Message from the Chief Justice of the Federal Court of Australia, the Hon Chief Justice Mortimer
Consultation on the Draft New General Federal Law Rules and Practice Directions for the FCFCoA
NZBA and ABA Joint Conference 2024
World Bar Conference 2024 – 15-17 May 2024
Colleagues,
Welcome to the first President’s Report and National Brief of 2024.
I trust 2024, in terms of your practice, is now in full swing, with interesting work and busy calendars.
Initiatives of the ABA in 2024
At the recent ABA Council meeting, it was resolved to apply some of the ABA’s resources to specific projects in the interests of our members. I take this opportunity to outline those to you, some of which I have touched upon in the past.
Cybersecurity
It has, of course, been an article of faith in our ancient profession that we maintain the confidences of our clients and ensure that they can share their most intimate concerns with us, safe in the knowledge that that confidence will be maintained. Until very recently, that demanded of us no more than personal restraint to make sure that we did not ourselves breach those confidences.
However, the advent of electronic communication, and particularly the internet, represent an extraordinary shift in that regard. To maintain that confidence, which our solicitors and clients alike can expect of us, requires a rigour and technical support around our electronic communications.
As the last of the world’s sole traders, this obviously presents particular challenges, given the ever more sophisticated nature of cyber attacks and the scale of our own enterprises.
Consequently, the ABA, together with certain other state and territory associations, is looking to identify benchmark requirements for cybersecurity for barristers; how they might practically be secured by barristers, whether a part of large bars or small and in large chambers or small; insurance around cyber risk; and appropriate responses in relation to cybersecurity breaches.
It is intended to, in collaboration with the state and territory Bar associations, provide information and assistance relevant to members in this regard.
Federal Incorporated Council of Law Reporting
I have previously written regarding the concern around the cost of access to authorised reports, and the prospect of a Federal Incorporated Council of Law Reporting.
The ABA is now taking steps to commence the creation of such a body, and to open discussions with relevant stakeholders in that regard. This is a topic on which I will write to you further during the year.
Best Practice Guidelines
Steps are underway to increase the number of Best Practice Guidelines produced and available to our members.
Should there be particular topics that you think would assist you in practice if such a guideline existed, please do not hesitate to contact me.
Mentoring for solicitor-advocates in the Northern Territory
No doubt all of you have read of the predicament in relation to representation in criminal proceedings in the Northern Territory. This is something that I have been actively discussing with Mary Chalmers SC, the President of the NT Bar Association, and others in the Northern Territory to see what the Bar nationally can do to assist.
One practical measure is silks and juniors with experience in criminal law providing mentoring to solicitor-advocates, particularly those in Alice Springs.
Mary and myself will be approaching barristers with such experience in the other states and territories in this regard, so the ABA can put together a database. If you have any interest, please do not hesitate to register.
ICAB Conference in Dublin and Belfast
There remain some spaces left for the ICAB Conference in Dublin and Belfast between 15 and 17 May 2024, discussed below. It will be an excellent conference, and I urge members to consider attending.
Joint Conference with the NZ Bar Association
The joint ABA-NZBA Conference in Queenstown is now set for 16 and 17 August of this year. It will have an array of interesting speakers, including prominent Australian lawyers.
I would urge you to consider attending. Not only is it an ideal opportunity to meet with your Australian colleagues, but also with our New Zealand colleagues.
Good wishes for the coming holiday season
We are about to commence a short break for the Easter holiday period. Whether this period is a time of significance for you as Easter, or for other religious or cultural reasons, or simply as an occasion to spend more time with family and friends, I wish you a happy and safe Easter.
I am pleased to be able to provide a contribution to the ABA’s National Brief. I hope to be able to contribute regularly to this publication and provide updates to the Bars nationally about activities in and relating to the Federal Court. As a national court of wide jurisdiction, the Federal Court is committed to active engagement with the Bar, and our Judges and Registrars depend on members of the independent Bar, as we do upon the wider legal profession, to assist us in the effective and efficient administration of justice.
It has been a busy start to 2024. In the first quarter of 2024, I am undertaking visits to each of the registries of the Federal Court with the Court’s CEO and Principal Registrar, Sia Lagos, and with members of the Court’s Executive. I have so far visited Perth, Hobart, Canberra, Brisbane and Sydney. I will be visiting the registries in Darwin and Adelaide, and finishing in Melbourne in the coming weeks. During these registry visits, in addition to meeting with each Judge individually, I have been meeting with members of staff, including separate meetings with the Court’s registrars, and with Chambers staff, and hosting a function for staff and members of the local profession. I have also been meeting with representatives of the Law Society and independent Bar in each location, and with representatives of the Law Council and Australian Bar Association. Together with the Court’s Migration National Judicial Registrar, Simon Haag, I have also hosted meetings with practitioners who regularly accept pro bono briefs in migration matters before our Court to better understand the perspectives of practitioners on this referral system and hear feedback on how the system might be improved.
The discussions with the profession during the registry visits have been especially productive and valuable. We have discussed both issues affecting the profession locally and the way they and their clients engage with the Federal Court, and national issues. I am grateful for the enthusiasm of the profession and their willingness to engage with the Court.
In February 2024, I attended, as an observer, the Pacific Chief Justices Leadership Forum in Samoa, this year organised by the New Zealand based Pacific Justice Sector Program. The forum is an annual meeting of the Chief Justices from 15 Pacific partner nations to discuss judicial and court cooperation and development opportunities, and priorities. It is also an opportunity to discuss and learn about emerging issues such as the use of technology by Courts, and particular areas of court practice. For example, this year there was a focus on local and village-based justice initiatives, including in relation to family violence. Developing cooperative working and assistance relationships with judiciaries in other countries, and especially in the Asia and Pacific region, continues to be a priority of mine as Chief Justice.
The Court has recently issued a notice to the profession regarding a proposal to dissolve the Australian Capital Territory (ACT) List. The Court has now completed the consultation process on the proposal with the Profession. The feedback received was positive and supportive of the proposal. Accordingly, the Court will now proceed to dissolve the ACT List. Matters which are filed in the ACT Registry will now be allocated to the docket of a NSW Judge for the applicable National Practice Area upon filing. Practitioners who currently have matters in the ACT List will be notified in due course of the Docket Judge to whom their matter has been allocated. As previously indicated, the new procedure will enable the case management of each matter to be carried out by the Judge who generally will be hearing the matter through to completion, so more matter specific requirements and efficient timeframes can be built into case management orders by the Docket Judge. The ACT Profession will also benefit by providing practitioners with earlier exposure to a wider range of Federal Court Judges. While case management may be undertaken remotely, the Court’s intention is that final hearings and larger interlocutory matters will be conducted in person in the ACT.
The proposal to amend the timing of the Full Court and Appellate sitting periods in 2025 by moving to three sitting periods received endorsement from Judges and the profession, and consequently I reached a final decision to implement it and move to three sitting periods in 2025. A notice to the profession was also issued confirming the implementation of this proposal.
The Full Court sitting periods for 2025 will be:
The Court will keep a close eye on how this change goes in 2025, and whether any modifications are required.
On 31 January 2024, the Court farewelled Justice David Thomas. Justice Thomas retired after more than a decade on the bench, having been appointed to the Federal Court in June 2017, and previously serving as a Justice of the Supreme Court of Queensland from October 2013. During his long and broad judicial career, Justice Thomas served as President of the Administrative Appeals Tribunal and President of the Queensland Civil and Administrative Tribunal. I thank Justice Thomas for his service to the Australian community.
I would like to take this opportunity to warmly welcome two new appointments to the Federal Court of Australia, Justice Penny Neskovcin and Justice Craig Dowling. Both are based in Melbourne. They were sworn in on 8 and 9 February 2024 respectively, and have both had their public welcomes on 28 February and 1 March respectively. On behalf of the Judges, Registrars and staff of the Federal Court, I congratulate Justices Neskovcin and Dowling on their appointments, and I am confident that they will serve the Australian community with distinction.
To coincide with the commencement of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) on 1 September 2021, new rules and practice directions were introduced for family law proceedings and general federal law proceedings in the Court.
The current Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Current GFL Rules) are based closely on the former Federal Circuit Court Rules 2001 and incorporate a considerable number of the Federal Court Rules 2011 (FCA Rules) through a schedule. They also provide for referral to the FCA Rules where a matter is not addressed in the Current GFL Rules.
In the lead up to 1 September 2021, significant work was undertaken to harmonise the family law rules across the Federal Circuit and Family Court of Australia (Division 1) and the Court and to implement the new courts structure. In order to ensure a proper and comprehensive review could be undertaken, the Court decided that a standalone set of rules and practice directions for general federal law proceedings would be developed post 1 September 2021.
The New GFL Rules are intended to largely provide a single legislative source without requiring parties and practitioners to cross-reference with the FCA Rules. Having said that, the New GFL Rules do still allow for referral to the FCA Rules on the rare occasion that a matter arising in a proceeding in the Court is not addressed in the New GFL Rules.
The draft New GFL Rules are supplemented by redrafted practice directions that will give overarching guidance as to the general case management applicable to each type of proceeding (GFL Practice Directions).
The next stage of the rules review process is a consideration of any updates to court forms and other associated documents which the Working Group is currently undertaking.
Consultation
The draft New GFL Rules and practice directions have been through initial rounds of internal judicial and registrar consultation and are now presented as part of the consultation process with the profession and other stakeholders. More information, including the draft New GFL Rules and accompanying documents can be found here.
Any feedback on the draft general federal law rules should be submitted by email to GFLRules@fcfcoa.gov.au no later than Friday, 5 April 2024.
Photo by Michael Amadeus
The joint New Zealand Bar Association and ABA conference will take place in Queenstown, New Zealand between 16 and 17 August 2024.
We are very excited to present a line-up of fascinating and knowledgeable speakers from both nations. More information will be available soon, along with the opportunity to secure your place.
Our rules-based legal order – both at the national and international levels – continues to face disruption from factors, advances in technology, geo-political instability and environmental issues, to name just a few.
The question arises: what value do barristers and advocates bring in the face of such challenges? And can our shared legal and ethical compass guide us through these periods of change?
We invite you to the World Bar Conference 2024, where the response to key global challenges will be considered by the collective insights and experiences of recognised experts in discussion with the independent referral Bars from across the globe.
Our goal is to build a community of lawyers finding renewed purpose in response to these core debates.
Registration is now open, but places are limited. Click here for more information and to reserve your place.
Join the Commercial Bar Association of Victoria in London at the Inner Temple & Middle Temple, in the Inns of Court, for a conference featuring leading members of the Judiciary and Melbourne and London barristers delivering a wide range of commercial litigation and arbitration topics, conducted via ten sessions over two days.
Hear from leaders of the Australian and the English judiciary and bars on the current issues facing the commercial bar today. Check back here in the coming weeks for details of the conference speakers and panelists.
Held in London in the Inner Temple Parliament Room on 3 and 4 July 2024, the 2024 International Commercial Law Conference will stage ten informative panel sessions covering a range of commercial litigation and arbitration topics. The conference will also include an optional satellite event in Oxford on 1 July 2024, hosted by the Tax Bar Association, which will feature two seminars on corporate governance, taxation and anti-avoidance issues, and a dinner following the afternoon seminar.
The legal year opened in February with the Silks Bows ceremony taking place at the High Court of Australia in Canberra. This was a solemn yet joyous occasion, as the professional accomplishments of the new silks was recognised. This was the first Silks Bows since the Hon. Stephen Gageler AC was elevated to Chief Justice of the High Court of Australia.
Following the ceremony, a gala dinner took place at Gandel Hall, within the National Gallery of Australia. Chief Justice Gageler toasted the new silks and spoke of his time on the High Court and his love for Canberra’s birdlife. The traditional toast to the judiciary was offered by Declan Roche SC of the NSW Bar.
Colleagues,
This is my final President’s Report for 2023. It has been an honour to have served as President of the ABA during this year.
The Outgoing ABA Council for 2023 and Incoming Council for 2024
Likewise, I had the honour to be re-elected as President of the ABA at the beginning of this month. Also re-elected were Róisín Annesley KC as Vice-President, Andrew Muller SC as Treasurer, and Ian Robertson SC as Chair of the Advocacy Training Council. Michael Izzo SC was also elected as a Vice-President. Additionally, a position of Chair of Conferences was created and Sam Hay KC was elected to that position.
The AGM also saw the retirement of Dominic Toomey SC, who has been recently elected as Vice-President of the NSW Bar.
I would like to take this opportunity again to thank all of the Executive for their assistance in the year just gone, and to thank the new Executive for their service.
I would also like to particularly express my thanks to Professor Greg Tolhurst, the CEO of the ABA; Ms Kelsey Rissman, CFO; and Ms Liz Barr, the Executive Assistant, for their great assistance throughout the year.
The retirement of Chief Justice Kiefel and the Swearing-In of Chief Justice Gageler and Justice Beech-Jones
It is always a momentous occasion when there are retirements and appointments on our apex Court. Shortly after my last President’s Report, Chief Justice Kiefel retired, ending her distinguished period on the Court, and Chief Justice Gageler was sworn in. Justice Beech-Jones was sworn in to fill the vacancy created on the Court. Each is an eminent jurist.
I had the privilege to speak at the ceremonial occasions for these three extraordinary judges. A link is attached to this National Brief to each of those speeches.
Joint Conference with the New Zealand Bar Association
Plans are well underway for a conference in New Zealand in August 2024 with the New Zealand Bar Association.
The Cornerstone 2023 conference on the Gold Coast was a great success, and the ABA Council is building towards regular, accessible conferences throughout Australia, but also periodic conferences abroad.
I would urge you to mark the date and attend in Queenstown, New Zealand, if you can.
Best Practice Guidelines
Another of the ABA’s Best Practice Guidelines, entitled Barristers and Meeting the Positive Duty, has been launched. I would encourage you to familiarise yourself with it, and other Best Practice Guidelines as they are released, as they are intended to provide assistance in respect of important areas of practice, calibrated to the conduct of barristers and not necessarily readily available in other formats.
Good wishes for the end of 2023 and the start of 2024
As for some of you, the next few weeks for me is a period of significance as a celebration of Christmas. For many others of you, it will be a period of significance for other religious or cultural reasons. Yet for many others of you, it will be a period of significance simply as providing the opportunity to catch up with friends and family over the extended break.
Whatever the coming holiday period means to you, may I take the opportunity to wish for you and your family that it bring peace, joy and significance to you, and offer my very best wishes to you for 2024.
The Australian Bar Association has announced the election of its executive team for 2023–24.
Peter Dunning KC, former Solicitor-General for Queensland, has been re-elected President of the Australian Bar Association.
Róisín Annesley KC, former President of the Victorian Bar Association, and Michael Izzo SC, Junior Vice-President of the NSW Bar Association, have been elected Vice-Presidents, marking a second term for Róisín Annesley KC. Andrew Muller SC, former President of the ACT Bar Association, has been re-elected as Treasurer.
Ian Robertson SC of the South Australian Bar Association will continue as Chair of the Advocacy Training Council.
At a special general meeting held with the AGM it was resolved to amend the ABA Constitution to inter alia create a position of Chair of Conferences. Sam Hay KC, former President of the Victorian Bar was elected to this new role. The updated ABA Constitution will soon be published on the ABA website.
The non-executive members of the ABA Council for 2023-24 are:
Matt Vickers was the ABA’s IT specialist and was so for well over a decade. Matt worked behind the scenes ensuring all the ABA’s systems operated and were secure. He also wrote the programs for many of the ABA’s systems, the most recent being the new Find a Barrister. He was part of the ABA family. He often dealt directly with members to help them resolve technology related queries and he was calm and patient with us not so technically minded. He also helped the Bar by being part of the NSW Bar Association’s football team. He was also a first-class darts player.
Matt sadly and very suddenly passed away on 22 November. He is survived by his partner Megan and his children Veronica, Jackson, Elyssa and Jake.
Matt was a wonderful colleague and an expert at what he did. He had an ability to make everyone around him relax and laugh while he solved the problem that we were all stressed about. He will be very much missed. Our sincere condolences to Matt’s family and his many friends.
In September 2021 the Sex Discrimination Act 1984 (Cth) (SDA) was amended to create a positive duty on a person conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, sex discrimination, conduct creating a workplace environment that is hostile on the ground of sex, and related acts of victimisation. The obligations of the positive duty under the SDA commenced on 12 December 2022.
In September 2023, the newly appointed Sex Discrimination Commissioner, Dr Anna Cody, said the legal profession would be among the industries to be examined for compliance with the new duty. From 12 December 2023, the Australian Human Rights Commission (AHRC) may exercise its powers to enforce compliance with the positive duty. Barristers come under this positive duty as persons conducting a business or undertaking making it unlawful for barristers to engage in sexual harassment.
To help you comply with the duty the ABA, together with the ABA Diversity and Inclusion Committee, have created a best practice guideline in the form of a checklist to help members work through their obligations as they apply to them and their chambers. The BPG can be found here.
Following the success of our last Trans Tasman conference, the Australian Bar Association and the New Zealand Bar Association will again be holding a joint conference in Queenstown NZ between 16 and 17 of August 2024.
Further details on the program and registration will be forthcoming in early 2024.
The International Council of Advocates and Barristers (ICAB) is excited to announce the 2024 World Bar Conference, bringing together practitioners from across the Common Law world.
Our rules-based legal order – both at the national and international levels – continues to face disruption from factors, advances in technology, geo-political instability and environmental issues, to name just a few.
The question arises: what value do barristers and advocates bring in the face of such challenges? And can our shared legal and ethical compass guide us through these periods of change?
We invite you to the World Bar Conference 2024, where the response to key global challenges will be considered by the collective insights and experiences of recognised experts in discussion with the independent referral Bars from across the globe.
Our goal is to build a community of lawyers finding renewed purpose in response to these core debates.
Registration is now open, but places are limited. Click here for more information and to reserve your place.
The Court has revised the process for the consideration of applications for special leave to appeal and applications for removal. The Court will also change the timing and manner of publication of its decisions in relation to these applications.
Consideration of applications
As is the current practice, all applications will be considered by the Court, in the first instance, on the basis of the written material.
Applications in which the applicant is unrepresented will generally be determined by two Justices. Applications in which the applicant is represented will now generally be determined by all seven Justices.
The Registry will refer applications to the Justices at the commencement of each sitting period. The Justices will meet on the first Monday of the following sitting period to consider the applications and will publish their decisions on the afternoon of the first Thursday of that sitting period.
Publication of dispositions
The decisions of the Court in applications have until now been published by the Justices sitting in court, in the absence of the parties, to pronounce orders and publish the written reasons for their decision (disposition) in each application. From December 2023 the Justices will publish the dispositions on the Court's website rather than in open court. This will streamline the publication process and will ensure that the publication of the Court's decisions is immediate and that the decisions are publicly accessible on the Court's website.
The Court's decisions will be provided to the parties in the usual way, through the Court's Digital Lodgement System, at the same time as they are published on the Court's website. The Registry will continue to publish the results sheet on the day the decisions are published.
Dispositions will continue to be published on the AustLII and Jade BarNet websites.
Applications referred for oral argument
The Justices will ordinarily decide the applications on the papers. In the rare case where the Justices are unable to decide an application on the papers, the application will be referred to a bench of three Justices for oral argument. hearings of applications will in principle be conducted with the parties' legal representatives appearing remotely. Hearings will generally be arranged for the sitting period following the referral for oral argument although some cases may require expedition. The Court will no longer appoint fixed special leave days in the annual Rule of Court.
At the time of notification of the hearing date, the parties will be notified of the issues that are of concern to the Court.
Directions hearing following the grant of special leave or leave to appeal or removal
Where considered appropriate by the Justices, or when requested by a party, a directions hearing will be held before an individual Justice following the grant of special leave or leave to appeal or the removal of proceedings.
Commencement of revised process
The first meeting of the Justices, to consider applications referred in November 2023 sittings, will be held on Monday 4 December 2023, with decisions to be published on Thursday 7 December 2023.
Other matters
Application books
The Justices have amended the High Court Rules 2004 to dispense with the need for the parties to file application books. This will reduce by at least one month the time required for the preparation of applications and their referral to the Court for consideration.
Forms
The form of Application (Forms 17 and 23) and Response (Forms 18 and 23A) will be amended from 1 December 2023 to provide for an indication of special considerations or circumstances in relation to the case. This will bring to the early attention of the Court any case requiring expedition.
These and other recent speeches given at Ceremonial Sittings of the Federal Court of Australia can be found here.
Australian Bar Association announces executive for 2023-24 - 5 December 2023
The West Australian Bar celebrated its 60th anniversary at its Bench and Bar Dinner on Friday 10 November. The event was held at the Art Gallery of WA, and was a glittering evening. Speeches were given by Brahma Dharmananda SC, President of the WA Bar; the Hon. Robert French AC, former Chief Justice of the High Court of Australia; and Julie Taylor SC, Vice-President of the WA Bar.
The ACT Attorney-General is seeking expressions of interest from qualified individuals for appointment as Director of the Office of Public Prosecutions. Applications close on 14 January 2024. Click here for more information.
Colleagues,
Welcome again to my message to you as a national Bar. I hope all is going well for you in what is a traditionally busy time of year. I trust you have all had a successful 2023.
Retirement of Chief Justice Kiefel and the Swearing-In Of Chief Justice Gageler and Justice Beech-Jones on the High Court of Australia
On 16 October 2023, a valedictory was held to mark the impending retirement of Chief Justice Kiefel of the High Court of Australia. I expressed on your behalf the profession’s appreciation for her Honour’s generation of service to the judiciary. My speech can be read on the ABA website.
On Monday, it will be my privilege to speak on your behalf at the ceremony to mark the appointment of Chief Justice Gageler and Justice Beech-Jones in the High Court.
ABA Conference — Cornerstone 2023
The Cornerstone 2023 conference at the Langham Hotel on the Gold Coast in September was a great success. The conference was well-attended, and the speakers were excellent.
Notably, it was one of the last public addresses of Chief Justice Kiefel, who is due to retire on Sunday.
I would particularly like to thank all of our colleagues who assisted with the organisation or participated as speakers; and the ABA personnel, Professor Greg Tolhurst, the CEO; Ms Kelsey Rissman, the CFO; and Ms Liz Barr, the EA, for all of their efforts in bringing the conference to such a successful event.
Proposed ABA Conference for 2024
It is proposed that the ABA Conference in 2024 will be held in conjunction with the New Zealand Bar Association, in Queenstown, New Zealand, around August of 2024.
The Voice to Parliament Referendum
Since the last National Brief, the referendum on the Voice to Parliament has been held, and the result well known to you all. I would like to express my personal appreciation for the contribution that so many barristers made in setting the example for a meaningful but polite exchange of views on what was obviously a contestable topic. It is what we should do best, and we did.
Cost of access to authorised law reports
This topic is progressing, albeit slowly. I expect to have more to report to you in the coming months.
CPD program and best practice guidelines
A number of best practice guidelines are in the process of being finalised, with more to come. If there is a particular area of practice that any member thinks would repay such a guideline, please do not hesitate to contact somebody at the ABA.
Consistent with what is intended by the guidelines, a best practice guideline on ex parte orders was presented to the Cornerstone 2023 conference.
Registrations are open for the 2024 Advanced Trial Advocacy Intensive, to be held in Sydney between 22 and 26 January.
This course provides realistic briefs in both criminal and civil proceedings, allowing you to gain valuable experience with senior coaches to develop your advocacy skills in real court settings.
Groups are small and the coach-to-participant ratio is high. This one week residential Trial Advocacy Intensive enables you to work closely with judges and experienced counsel which will include Federal and Supreme Court Judges, senior Australian counsel and International counsel as well as performance and voice coaches with expertise in voice, movement and impact.
The Intensive involves discussion and comment on each aspect of trial performance. This course will advance your skills as an experienced barrister and will focus on developing your strengths in addressing, examining-in-chief and cross examining.
Registrations close Thursday 30 November 2023.
For more information and to register click here.
For all enquires please contact the ATI Secretariat at cpd@qldbar.asn.au or phone (07) 3238 5100.
Dominic Toomey SC, Vice-President of the ABA, will provide regular updates on the Australia-UK Free Trade Agreement
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te on the A-UKFTA I drew members’ attention to the principal provisions in the agreement concerning lawyers. In particular, attention was drawn to the establishment, under the agreement, of the Legal Services Regulatory Dialogue (Dialogue) composed of representatives from the legal professions of Australia and the UK, whose objectives include the consideration of matters affecting current requirements for requalification, directed specifically to their liberalisation.
Since then, the Law Council of Australia, which is the principal representative of the Australian profession on the Dialogue, has sought submissions from constituent bodies, and attended a preliminary meeting of Dialogue participants on 3 October 2023. Under the Agreement, the Dialogue is encouraged to meet annually for the first three years from the date of entry into force (i.e. 31 May 2023), and to produce a report by January 2025. It is expected that the first substantive meeting of the Dialogue will occur in early 2024, by which time the LCA and other regulatory body representatives on the Dialogue will have had an opportunity, with the benefit of submissions from constituent bodies, to develop their policy positions.
The development of those policies is understood to be progressing. Much attention will necessarily be given to the requisite criteria for admission as an Australian legal practitioner. From the Bar’s point of view, however, there will of course be a particular focus on the additional requirements imposed by the respective independent referral bars to practise as a barrister. I can assure members that we will continue to pay close attention to this matter as it develops, and, where necessary, to advocate for our constituent bars.
The Ross Ray QC Scholarships commemorate the late Ross Ray QC, member of the Victorian Bar and the inaugural Chair of South Pacific Lawyers Association, and his dedication to advancing South Pacific lawyers and legal associations.
Each year, the Law Council of Australia partners with the Australian Bar Association to enable a maximum of two South Pacific lawyers to attend the Essential Trial and Advocacy Course, which is held alternately in Perth and Adelaide. In 2023 it will take place in Adelaide.
These scholarships are an invaluable opportunity to assist early career lawyers to develop a range of advocacy skills through individualised coaching.
The scholarships are valued at up to AU$8,000 each, and include:
This year’s recipients are Ms Eunice Noki of Papua New Guinea and Ms Ann Matalasi of Samoa.
The Minds Count Foundation (formerly the Tristan Jepson Memorial Foundation) held its annual lecture at the Federal Court of Australia in Sydney in August 2023.
The Hon. Justice Jayne Jagot of the High Court of Australia delivered the keynote address, titled ‘Burning Bright Without Burning Out’.
Following the keynote, Peter Dunning KC, President of the ABA, took place in a panel discussion facilitated by Danielle Kelly, Director of Culture and Inclusion at Herbert Smith Freehills. Other panellists included Justice Jagot and Fiona McLeay, CEO and Commissioner of the Victorian Legal Services Board.
A recording of the panel is available here.
On 13 September 2023, Peter Dunning KC attended and spoke at the Ceremonial Sitting of the Full Court of the Federal Court of Australia to welcome the Hon. Justice Yaseen Sharrif.
The Hon. Chief Justice Susan Kiefel AC of the High Court of Australia was farewelled in a Ceremonial Sitting on Monday 16 October 2023. In attendance were Peter Dunning KC, along with the Presidents of the Bars of the ACT, NSW, QLD, SA, VIC and WA. Mr Dunning’s speech can be read here.
Peter Dunning KC attended the Ceremonial Sitting of the Full Court of the Federal Court to Welcome the Hon. Justice Christopher Horan in Melbourne on 20 October 2023.
Colleagues, it is a pleasure to write to you again in relation to the affairs of the Bar nationally.
Cornerstone 2023 conference — 21 - 23 September 2023
The ABA’s Cornerstone conference is now less than one month away. The venue for the conference, at the beachfront Langham hotel resort on the Gold Coast, is a stunning one.
The conference will have a keynote address from the Hon. Chief Justice Susan Kiefel AC, and within weeks of the end of her Honour’s distinguished tenure on the High Court of Australia.
I would encourage all members, new and old, to endeavour to attend.
The Indigenous Voice to Parliament referendum — 14 October 2023
Today the Prime Minister, the Hon. Anthony Albanese MP, announced that the Indigenous Voice to Parliament referendum will be held on 14 October 2023.
The referendum is a watershed moment in history.
Lawyers generally, and members of the Bar perhaps especially, are uniquely placed to contribute to the discussion about how a constitutionally entrenched Indigenous Voice to Parliament might operate if approved at the referendum.
I would encourage each of you to engage in that discussion, and in particular, to lead by example in demonstrating that contestable points of view can be the subject of robust yet courteous discussion.
The announcement of the retirement of the Hon. Chief Justice Susan Kiefel AC and the appointments of the Hon. Justice Stephen Gageler AC as Chief Justice and the Hon. Justice Robert Beech-Jones as a Justice of the High Court of Australia
Appointments and retirements to our apex court are always a matter of great significance, all the more so when it involves the retirement and appointment of a Chief Justice.
It was my privilege on behalf of all Australian barristers to congratulate Justice Gageler on the announcement of his appointment as Australia’s next Chief Justice of the High Court and Justice Robert Beech-Jones as a Justice of that court.
Similarly, it was a privilege to acknowledge, again, the distinguished service that the Hon. Chief Justice Susan Kiefel has given not only as Chief Justice and earlier as a Justice of the High Court of Australia, but indeed, what has been a generation of judicial service by her Honour across all of the Supreme Court of Queensland, the Federal Court of Australia and the High Court of Australia.
Cost of access to authorised law reports
As I reported in the last edition, steps are being taken to try and improve cost-effective access to the authorised reports. Those discussions with the legal publishers are progressing. I hope to have something more definitive to report when next I write to you. I am grateful for the assistance of our colleague Róisín Annesley KC, Vice-President of the ABA, in this endeavour.
CPD Program — Best Practice Guidelines
The first of the Best Practice Guidelines which has been promulgated is appearing on the ABA website as this newsletter is being distributed. It deals with the professional obligations around ex parte applications. Other such guidelines are in the process of being prepared.
Free Trade Agreement
I would invite you to read with interest what has been written by our colleague, Dominic Toomey SC, one of the Vice-Presidents of the Australian Bar Association, on the Australia-UK Free Trade Agreement.
I wish you all well as we each embark on the last, typically busy, third of the year.
The 2023 ABA Conference ‘CORNERSTONE 2023’ will be held between 21-23 September at the glorious beachfront Langham Hotel on the Gold Coast.
This conference will offer an exciting and engaging program, featuring panel discussions, addresses and social events.
Registrations are now open.
Among the high-profile panellists and speakers confirmed to attend:
Other luminaries from the field of law, government and high-profile public discourse will be added to the schedule of events closer to the start date.
Discussions will revolve around the conference’s theme, the Rule of Law: the very foundation of our nation and its institutions.
The conference will be a great opportunity to network, broaden your understanding of current issues impacting the legal profession, and gain insight as to what the legal fraternity’s foremost identities have to share.
Click here for more information, including registration.
Dominic Toomey SC, Vice-President of the ABA, will provide regular updates on the Australia-UK Free Trade Agreement
The Australia-UK Free Trade Agreement (A-UKFTA or Agreement) entered into force on 31 May 2023. The relevant provisions for the legal profession, and more particularly the Australian Bars, are contained in Article 10, ‘Professional Services and Recognition of Professional Qualifications’. ‘Legal services’ are included in the definition of ‘Professional services’.
The introductory language in Article 10.3, which is a statement of objectives, is expressed in terms of the “encouragement” of the development of systems for the mutual recognition of professional qualifications, and the “facilitation” of trade between the two nations in professional services. Article 10.7 is directed specifically to ‘Legal Services’. It maintains, on the one hand, a party’s right to ‘regulate and supervise’ the supply of legal services ‘in a non-discriminatory manner’, but also provides that a ‘host party’ shall allow a national of the other party, who is professionally qualified and authorised in the other party to practise as a lawyer, to supply services without having to requalify or be authorised to practise as a ‘host party’ lawyer. Importantly for the Bar, however, that obligation does not extend to ‘legal representation services’ in matters or proceedings before administrative agencies, the courts, or other duly constituted official tribunals of a party.
Article 10.8 provides that the parties shall establish a Legal Services Regulatory Dialogue (Dialogue) composed of representatives from the legal professions of each party, whose objectives include the consideration of matters affecting requirements for requalification, directed to the liberalisation of such requirements. Whilst neither the ABA nor any of the individual state Bar Associations is specifically mentioned in the Agreement among the named representatives composing the Dialogue, the ABA President, Peter Dunning KC, has liaised with the Legal Services Council and the Law Council of Australia in order to secure a ‘seat at the table’ for the ABA.
The work of the Dialogue is in its early stages, but is self-evidently significant to the Bar. Input is being sought from the ABA’s constituent Bars concerning the Australian Bar’s position on matters central to the implementation of the Agreement. We will keep members informed on A-UKFTA matters as they develop.
The ABA is proud to support Australian Arbitration Week. Australian Arbitration Week 2023 will be held from 9 October 2023 to 13 October 2023, with the ACICA/CIArb Australia International Arbitration Conference on 9 October 2023.
Of particular interest is Resolving Disputes on Major Projects - Lessons Learnt from Recent Arbitration Proceedings, presented by ACICA and the ABA. An experienced panel of speakers will discuss lessons learnt from their involvement in resolving disputes arising on major projects in the region. The discussion will cover issues arising as part of project inception and execution and during dispute management and resolution. Insights from a variety of different perspectives on what worked and what did not and what to look out for will be shared by panel members with the audience, who will also be invited to participate. Register here.
The full calendar of events taking place during Australian Arbitration Week is available here.
The Federal Circuit and Family Court of Australia (Division 1) (FCFCOA (Division 1)) and the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Division 2)) (together, the Courts) have implemented an updated Magellan List definition and criteria, upon recommendation by the Courts’ Family Violence Committee. These updates reflect the Courts’ ongoing commitment to responding appropriately to risk in family law proceedings.
This builds upon a number of initiatives the Courts’ have launched this week, including the Updated Family Violence Plan and Family Violence Best Practice Principles, and three new short films on the following topics:
• How the voice of the child is heard?
• How the Court process works for parenting cases
The updated Family Violence Plan and Family Violence Best Practice Principles are available on the Courts’ website via the following links:
• Family Violence Best Practice Principles
The Magellan List is a long-standing specialist list designed to ensure that proceedings involving the most vulnerable children and requiring the most resources are appropriately triaged, and dealt with as effectively and efficiently as possible.
From 21 August 2023, the identification of a Magellan matter and criteria for transfer in to the Magellan List will require notifications or allegations of the following (generally within the preceding 12-month period):
(a) sexual abuse of a child; and/or
(b) serious physical abuse of a child; and/or
(c) fresh allegations of historical sexual or physical abuse of a child which had never previously been disclosed; and/or
(d) activity by a party to the proceedings or a relevant adult (such as a step parent or relative) which:
i. poses a risk of direct or indirect sexual abuse to the child, including activity directed towards children who are the subject of the proceedings or any other child/ren; and/or
ii. involves an allegation, charge or conviction for offences related to the production, possession and distribution of Child Exploitation Material (CEM), whether or not the images relate to children the subject of the proceedings; and/or
(e) serious or escalating physical abuse of a subject child of the proceedings.
The Magellan List provides a tightly administered case-management pathway for proceedings involving sexual abuse and/or serious physical abuse of a child, which is supported by a dedicated multi-disciplinary team of Judges, Registrars and Court Child Experts. The Magellan List and updated definition will operate in all Federal Circuit and Family Court of Australia registries nationally from 21 August 2023.
Information about the Magellan List can be found on the Federal Circuit and Family Court of Australia website here: Magellan List | Federal Circuit and Family Court of Australia.
The 2023 Tri-State Football (Soccer) Tournament and Sports Law Conference will take place in Victoria on Saturday 16 September 2023.
This is an annual event, held since 2010 (with Covid hiatus in 2020 & 2021), with the venue rotating between Brisbane, Sydney and Melbourne.
The morning of Saturday 16 September 2023, will see the Sports Law Conference held over two to three hours. Speakers include the Hon. Justice Melanie Sloss; the Hon. Justice Jack Forrest; his Honour Coroner Simon McGregor and more.
The Tournament involves three games of football (soccer): one between Queensland and Victoria, one between NSW and Victoria and one between Queensland and NSW.
The Tournament is a mixed tournament and is a fabulous occasion on which members of the Bar can join together to participate in a fun social sporting activity and to meet interstate colleagues.
Click here for more information.
Peter Dunning KC, President of the ABA, attended the ceremonial sitting of the Full Court of the Federal Court of Australia to welcome the Hon. Justice Emilios Kyrou AO. His speech may be found on the ABA website.
The Queensland Bench and Bar Dinner took place on Friday 10 August. Among the speakers were the Hon. Justice Flanagan of the Supreme Court of Queensland and Peter Dunning KC, President of the ABA.
Colleagues, it is a pleasure to write to you again in relation to the affairs of the Bar nationally.
Cornerstone 2023 conference
The preparations are well in hand for the ABA’s 2023 conference, Cornerstone, at the Langham on the Gold Coast.
The Honourable Chief Justice Susan Kiefel AC will be giving the keynote address at the conference. The conference will take place approximately a month before her Honour’s retirement from the High Court, which she has led with such distinction. English and Australian barrister Geoffrey Robertson KC will also be addressing the conference, as will other distinguished judges and barristers, including in a number of panel discussions.
I hope as many members of the Bar as possible can make it to the conference.
Cost of access to authorised law reports
On 2 June 2023, I addressed the National Law Reporting Conference to give the Bar’s perspective on issues around cost-effective access to authorised reports. Significant discussions are occurring concerning the ways in which access to, particularly federal, authorised reports can be made more cost-effective to the legal profession. Courts understandably prefer authorised reports, and authorised reports are capable of making us more cost-effective advocates. This is something I expect to write you about in more detail in the future.
Meeting with members of the Academy for the Judiciary and Ministry of Justice for Taiwan
Earlier this month, the CEO, Professor Greg Tolhurst, and I met with Ms Li-Ling Ker, President of the Academy for the Judiciary and other members of the Ministry of Justice in Taiwan. The meeting demonstrated the interest there is more broadly in the region in Australia as a legal system of high repute.
The striking similarities in outcomes are also very interesting, notwithstanding that the Taiwanese legal system is one that is generally considered an amalgam of German and Japanese law, essentially civil law in dimension, where lawyers who wish to be on the pathway to judicial office commence doing so in their twenties. It was equally interesting to learn of the recently introduced composite jury of judge and lay persons in certain criminal trials.
The Voice
In the community, important discussions are going on in relation to the referendum scheduled for late in the year regarding whether there should be a First Nations Voice to Parliament. As is to be expected, our members have a range of views on the question of a Voice to Parliament.
Among our constituent associations different, and available, views have been taken as to whether to advocate an institutional position on a Voice to Parliament. The view taken by the ABA is that, on what necessarily centrally include political and social issues, the role of the ABA is not to advocate for one position or another, and limit comment, if any, to legal issues that the Bar is uniquely positioned to contribute on during the course of that debate.
I would encourage you to respect, as I know you will, the range of respectable views that sit around this issue to ensure that the contribution made by barristers to the debate is one that edifies and informs it. Naturally, individual members should, if minded to, express their own personal political views.
CPD Program and Best Practice Guidelines
Progress continues to be made on expanding the ABA’s role in the delivery of CPD programs and the promulgation of best practice guidelines.
Places are limited and will be allocated on a first-come, first-served basis.
The conference will be held between 21-23 September at the recently opened, beachfront Langham Hotel on the Gold Coast. As with all ABA conferences there will be an exciting and engaging program of panel discussions, addresses and social events.
The theme for the 2023 conference is “The Rule of Law”. The Rule of Law is the cornerstone upon which our nation and its institutions are founded. It has many facets, but is crucial in preserving and promoting a free and inclusive society. This theme has been chosen due to the many issues facing Australia and its neighbours that raise concerns or threats which the Rule of Law provides protection against under our system of government.
The Conference will be opened by the Hon Susan Kiefel AC, Chief Justice of Australia, followed by a keynote address on the conference theme by Geoffrey Robertson KC. Conference sessions will feature the Attorney-General of the Commonwealth, prominent members of the judiciary and the Bar, as well as solicitors and other professionals.
In addition, the conference will include the specialised commercial, tax and criminal law streams that members have come to expect of ABA conferences.
A ceremonial sitting of the Full Court of the Federal Court of Australia to welcome the Hon. Justice Emilios Kyrou AO will take place in Melbourne on Wednesday 28 June 2023 at 9:30am AEST.
Justice Kyrou AO will serve as President of the Administrative Appeals Tribunal for a term of five years, overseeing the establishment of a new administrative review body.
The ceremonial sitting will be livestreamed on the Federal Court's YouTube Channel.
Among the speakers will be Peter Dunning KC, President of the ABA, and Sam Hay KC, President of the Victorian Bar Association.
The ABA is proud to support Australian Arbitration Week. Australian Arbitration Week 2023 will be held from 9 October 2023 to 13 October 2023, with the ACICA/CIArb Australia International Arbitration Conference on 9 October 2023.
The full calendar of events is available here.
Congratulations to the members of the profession who received awards in the Order of Australia:
Member in the General Division (AM)
Medal in the General Division (OAM)
Fees payable in the Federal Courts and Tribunals will increase from 1 July 2023 to reflect the consumer price index over the past financial year.
Click here for a copy of the notice published in the Government Notices Gazette.
Nearly 700 people attended the NSW Bench and Bar dinner on Friday 12 May. Speakers included the Hon. Justice Jacqueline Gleeson, Gregory Sirtes SC and Catherine Gleeson, and it was by all accounts a glittering evening.
The Victorian Bar Dinner took place two weeks later, with a well-received keynote speech by Dr Stephen Donaghue KC, Solicitor-General of Australia.
The International Malaysia Law Conference 2023 — 11-13 July 2023
2023 ABA National Conference — 21-23 September 2023
Australian Arbitration Week — 9-13 October 2023
Asia Pacific Coroners Society Conference 2023 - Truth Telling 2023 — 13-15 November 2023
Save the Date: the 2023 ABA National Conference
New on ABA On Demand: Caring for the Carers and the Legal Assistance Referral Scheme
The International Malaysia Law Conference 2023 — 10 to 13 July 2023
Asia Pacific Coroners Society Conference 2023 — Truth Telling — 13 to 15 November 2023
High Court Amendment (Forms and Other Matters) Rules 2022
The ABA held its annual general meeting on Tuesday 22 November 2022. The members of the Executive for 2023 are:
The non-executive members of the Council for 2022 are:
With Easter behind us and autumn closing in quickly, the legal year is well underway, as is my term as President of the ABA.
Preparations are afoot for Cornerstone 2023, the ABA’s National Conference. As I write, the program is being finalised and the registration portal is being completed. I am very excited about the theme — the Rule of Law — and the speakers we are lining up for the event.
The venue, the Langham Hotel on the Gold Coast, is a brand new facility overlooking the iconic beaches of Surfer’s Paradise. I hope to see many of you in person in September.
In 2023, I intend to maintain and expand the ABA’s CPD program. The ABA Constitution calls for us to arrange and promote continuous professional development. We are newly accredited in Western Australia as a CPD provider, which speaks to the quality of our library of webinars.
In terms of expansion, I am promoting the creation of ABA best practice guidelines on matters of general application to Australian barristers.
Within Australia, I have had the privilege of consulting with the Attorney-General’s Department on the development of a Commonwealth Judicial Commission. I have also had the privilege of speaking at the swearing-in of a number of judges to the Federal Court and the Federal Circuit and Family Court of Australia. I also spoke recently at the valedictory for Chief Justice Allsop of the Federal Court. I am at the moment organising for those addresses to be circulated, and going forward will circulate them as soon as they are available after I speak.
Beyond our borders, I am developing connections with legal professional bodies throughout Asia. In the coming months, I shall be meeting with the President of Academy for the Judiciary, Ministry of Justice of Taiwan, and attending the International Malaysia Law Conference.
I am very eager to consolidate the achievements of past Presidents of the ABA, and build on them for the future.
Following the success of Re-Emerge 2022, we are excited to share that the 2023 ABA National Conference will take place from 21 – 23 September 2023, at the Gold Coast Langham. The theme will be The Rule of Law.
Stay tuned for more information, including early bird registration.
It is now commonplace for barristers to be working with seniors or juniors who have significant parental responsibilities, or to have those responsibilities themselves. There are also far more barristers experiencing the joys and tribulations of pregnancy and the early stages of parenthood while juggling a practice. In this webinar, Kavita Balendra (chair), Kate Juhasz, Haroon Hassan and Megan Caristo discuss how we, as a legal community, can support those with parental responsibilities to best achieve their professional goals.
The Administrative Appeals Tribunal (AAT) and the ABA Taxation Committee have recently established a Legal Assistance Referral Scheme to provide pro bono legal assistance to unrepresented taxpayers who have lodged applications for merits review in the AAT’s Taxation and Commercial Division or Small Business Taxation Division.
Please join us for a discussion of the circumstances in which legal assistance may be appropriate under the Scheme, the criteria for eligibility and the process associated with applying for assistance under the Scheme. Our panel includes Deputy President McCabe of the AAT (Division Head of the Taxation & Commercial Division and the Small Business Taxation Division) and Michael Abood of the AAT (National Practice Registrar); Kristen Deards SC (Banco Chambers and Chair of the Australian Bar Association Taxation Committee); and Ermelinda Kovacs (Ground Floor Wentworth Chambers and Member of the ABA Taxation Committee).
Access to CPD material requires a National Barrister Database account – sign up here. The ABA is now a registered CPD provider in Western Australia.
Navigating the Present, Exploring the Future
Innovation. Technology. Digitalisation. Specialisation. Where are our lawyers at? Are they ideally positioned to fully leverage the opportunities created by the challenges of a demanding present and future? Are they ably equipped to tap into and harness the positive potential of the expanding domestic and global markets?
IMLC 2023 is poised to address the concerns and hurdles legal practitioners face, with the determination to equip them for a rewarding future and to provide a vision for robust growth. We want our lawyers to be inspired and empowered, steadfast yet versatile, resolute and unafraid, and at the ready to embrace the transformations in the evolving legal landscape
The Asia Pacific Coroners Society was established to promote the advancement, best practice and education of coronial law and practice.
Membership is open to all coroners and to anyone involved in, or associated with, the coronial jurisdiction, such as pathologists, forensic scientists, police investigators, lawyers, and grief counsellors.
This year's conference will run from the 13th-15th November, and will include keynote addresses and sessions providing the opportunity to listen, particularly to the voices of First Nations speakers.
The High Court Amendment (Forms and Other Matters) Rules 2022 were registered on the Federal Register of Legislative Instruments on 21 November 2022.
The Amendment Rules update references to the Sovereign in the court forms to reflect the ascension of King Charles III and make provision for the Court to remove the court forms from the High Court Rules 2004 and to prescribe the forms instead by Practice Direction.
The Amendment Rules also implement the 4% increase to the scale of costs recommended by the Joint Costs Advisory Committee in its Fifteenth Report. The amendments to the scale of costs in Schedule 2 will apply in relation to all work done and services performed by solicitors after 1 January 2023.
High Court Amendment (Forms and Other Matters) Rules 2022 (PDF) | Explanatory Statement
New court process focuses on the safety of children and their families by identifying and addressing issues of family violence and other risks.
Lighthouse risk screening and the Evatt List commenced nationally on 28 November 2022. In the first two months since its expansion the Courts have already:
This is an encouraging response by parties and the profession as screening at the start of the case will ensure that the Courts can quickly identify, assess and help families impacted by family violence and other family safety risks. The Courts thank the profession for the early support of this important initiative. With the expansion now well underway, the Courts call upon the profession, and those working in the family law sector, to familiarise themselves with this important family safety initiative and to communicate the process and benefits with their clients.
The purpose of this update is to focus on the key benefits of screening, provide frequently asked questions and answers the Courts have received, and advise where to go for further information, resources and training. The Lighthouse (and importantly, its objectives) received widespread support at a launch held in Sydney late last year. A recording of the launch, and a video compilation of the television media coverage, is available from the Courts’ website.
By encouraging your client to undertake the confidential Family DOORS Triage questionnaire, practitioners and members of the profession are strengthening their client’s support in navigating the family law system.
By completing the Family DOORS Triage questionnaire, clients are provided:
The Family DOORS Triage questionnaire not only assists the Courts but also helps practitioners and members of the profession to enhance their response and understanding of risk factors present. By completing Family DOORS Triage, clients will receive targeted support for their concerns. Importantly for your client, they can be confident that their responses to the risk screen are confidential and inadmissible.
Part IIA of the Family Law Act 1975 (the Act) prevents the disclosure and admission into evidence, of information that is disclosed through the Courts’ family safety risk screening process, relating to a party to proceedings under the Act. Part 11A of the Act provides that:
More information on how the risk screen is protected under Part IIA can be found here.
This update is also available online:
https://www.fcfcoa.gov.au/news-and-media-centre/updates-profession/utp-170223
A 10-year-old can’t make adult decisions, so why do we hold them criminally responsible? — Peter Dunning KC, The Sydney Morning Herald and The Age, 22 December 2022
Law Council of Australia and Australian Bar Association extremely concerned over police informants legislation — ABA/LCA press release, 10 February 2023
International Women’s Day - “Cracking the Code: Innovation for a Gender Equal Future” — ABA press release, 8 March 2023
The Australian Bar Association Welcomes the Appointment of the Next Chief Justice of the Federal Court of Australia — ABA press release, 31 March 2023
The Silks Bows took place at the High Court of Australia on Monday 6 February 2023, followed by the annual gala dinner, which was held at the National Gallery of Australia.
In her final year as Chief Justice of the High Court, and in honour of her long years of service to the legal profession, Chief Justice Susan Kiefel was given a life membership of the ABA.
In nominating her Honour, Mr Dunning said, “I have known the nominee throughout the entire time of her career as an Australian jurist.
“In fact, I have appeared before her Honour in the Supreme Court of Queensland, the Federal Court of Australia and the High Court of Australia.
“Kiefel CJ places considerable emphasis on the collegiality of the profession at every level, from junior barristers to judges at the highest level.
“Her Honour’s leadership in terms of courtesy in the courtroom and exposing the rationale for decision-making of the implied freedom of political communication merit particular attention.
“It would seem appropriate that the ABA mark the pending retirement of a Chief Justice of the High Court at an appropriate occasion.”
Mark Costello SC gave the traditional toast to the judiciary, and did so with considerable wit and style.
The International Malaysia Law Conference 2023 — 11-13 July 2023
2023 ABA National Conference — 21-23 September 2023
Asia Pacific Coroners Society Conference 2023 - Truth Telling 2023 — 13-15 November 2023
President’s End of Year Report
Advanced Trial Advocacy Intensive
Notice to the Profession from the President of the Fair Work Commission
FCFCoA Expansion of the Lighthouse Model - Updates to the Profession
Invitation to the Inaugural Michael Kirby Lecture
Hearing Protocol Issued | FCFCoA PD Covid-19 Special Measures revoked
The Australian Bar Association’s vision, articulated in its current Strategic Plan, is to be “the national voice for the independent Bars of Australia”, with objectives of promoting the rule of law and access to justice, fostering a collegiate, inclusive and diverse national association of barristers; maintaining and enhancing professional standards; and providing opportunities for members to enhance professional performance.
As 2022 draws to a close, I am pleased to provide members with a report of how your Association has executed against the Strategic Plan over the past twelve months.
In addition to our ordinary functions such as governance, management of relationships with members and stakeholders, and responding to requests for policy and law reform submissions, which together consume much of the day-to-day time of the Association:
The ABA is principally funded by a capitation fee, which is collected by State and Territory Bar Associations on behalf of members. For the year to 30 June 2022, the capitation fee per barrister was $92. I hope all members agree that that represents value for money.
This is my last report as President of the ABA.
It has been a privilege to lead the Association over the past twelve months, and to meet so many dedicated, talented and hard-working members around Australia who, every day, make a difference in the lives of their clients and contribute to the ongoing strength, reputation and endurance of the Bar. We are a remarkable college, strong because of our commitment to shared values. I wish my successor and their team all the very best for the coming year.
Matt Collins AM KC
The ABA is assisted in its mission by a small team who handle the day-to-day administration and ensure that, while Presidents, Executives and Councils change, the Association has continuity.
Greg Tolhurst — CEO
[photo not provided]
Kelsey Rissman — Chief Financial Officer
Róisín Ryan — Media and Communications Manager
Hayden Doria — Events Manager
Liz Barr — Executive Assistant
The ABA and its committees have worked hard in 2022 to build up a library of high quality nationally available podcasts and CPD material, which is now accessible at https://austbar.asn.au/aba-on-demand.
Accessing the CPDs requires an account with the National Barrister Database — sign up at https://fab.austbar.asn.au/register.
Current CPDs include Trans Athletes in Sport – Current Protections and Options for Reform, presented by the Diversity & Inclusion committee, and A Trans-Tasman Perspective on General Anti-Avoidance Regimes, presented by the Taxation Committee.
30 November will see a CDP presented by Legal Home Loans on personal finance management for barristers — register here.
New to the podcast section is a conversation between Dr Matt Collins AM KC and John Heard of the Victorian Bar about John’s pathway to the Bar.
There are places available for only 42 barristers. Seniority of at least five years at the private bar is a pre-requisite.
The underlying philosophy of the Intensive is that the skills of a barrister are best learned in an environment that is as close to the real experience as possible. This involves providing realistic briefs to counsel in sufficient time for counsel to properly prepare the matter for hearing and then giving them the opportunity to perform in real court settings.
The Intensive involves discussion and comment on each aspect of trial performance.
There are very few opportunities for barristers to develop their advocacy skills by preparing a case and experimenting with a number of styles of performance to see which is the most effective for that advocate on that occasion. Rarely do barristers have the opportunity of seeing their own performance played back so that it can be reviewed. Never in professional practice is there an opportunity to have a number of senior practitioners analyse performances and provide intensive and supportive feedback about ways to refine and improve.
This Intensive provides each of these elements, and much more.
Coaches
The coaching Faculty will include current and former Judges, Australian and international counsel, and performance coaches with expertise in voice, movement and impact, including:
International Faculty
Australian Faculty
Civil brief
Advocates will be briefed for either the Applicant or Respondent in a case involving alleged breaches of the Australian Consumer Law.
Criminal brief
Advocates will be appearing for either the Crown or Defence in a conspiracy to murder case.
In both briefs, barristers will give an opening address, examine in chief three witnesses, cross examine three witnesses and give a closing address. No extensive, specialised legal knowledge is required for either brief - the cases are suitable for practitioners from all areas of practice to improve, develop and hone their skills.
Pre Intensive Preparation
To replicate reality as far as possible, full preparation of the brief is required before the Intensive commences. Barristers are expected to be ready to deliver an opening address on the first full day of the intensive. Past experience suggests that at least three full days preparation may be required.
Intensive Format
The general format of the Intensive is to discuss the requirements of each performance and have demonstrations the day before the performances. Barristers then reconsider and refine for their own performances.
Performances take place in court rooms in groups of approximately six, each barrister of similar experience. At least three coaches are assigned to each group, on rotation. Performances are discussed and recorded. They are then reviewed individually with another coach, one on one, so that particular aspects of the performance, or suggestions for change, can be further discussed and developed.
Coaches are available during breaks as well as before and after sessions for consultation.
Registrations close 30 November 2022
Criminal Brief — $4,250.00
Civil Brief — $4,550.00
The cost includes:
Please note that there are no discounts being offered for barristers who wish to stay off-site. It is intended that this is a residential course and as such rooms have been booked for all barristers.
Travel costs are additional for interstate barristers and are to be organised by the barristers individually. All working materials (stationary, text, legislation) are to be provided by the participant.
Justice Ross, President
7 November 2022
[1] The Fair Work Commission encourages the active participation of junior counsel in cases where two or more counsel are briefed for a person and the Commission has granted the person permission to be represented by a lawyer or paid agent in a Commission conference or hearing.
[2] The Commission recognises that junior counsel will often have made a substantial contribution to the preparation of the case, and will best develop as advocates by being given opportunities to present argument and examine and cross-examine some witnesses.
[3] Where appropriate, the Commission encourages senior counsel to divide submissions between themselves and junior counsel, or ask junior counsel to make submissions in reply, call evidence or cross examine witnesses.
President
Download this notice in PDF format
Following the recent Federal budget announcement, and FCFCOA media release, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the Courts) have been working on the expansion of the Lighthouse model to 15 family law registries.
The safety of children and families is the highest priority for the Courts and this new process is being implemented to improve outcomes for families in the family law system. As detailed at the National Family Law Conference in August, the Courts’ focus and priority is squarely on family violence, and the Courts have made significant changes to address the seriousness of the issue. Some of the changes and initiatives include:
From 28 November 2022, the Courts will make further changes to continue this focus, expanding the Lighthouse model, including the Evatt List, nationally.
The Courts have been issuing detailed Notices to the Profession about the expansion of the Lighthouse Model on a weekly basis:
The Australian Law Reform Commission is pleased to invite members of the Australian legal profession to the inaugural Michael Kirby Lecture.
The keynote address for 2022 will be delivered by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP.
This annual lecture celebrates the law reform legacy of the Hon Michael Kirby AC CMG both as the inaugural Chairman of the ALRC and as one of Australia’s leading jurists.
As the inaugural Chairman of the ALRC from 1975 until 1984, Michael Kirby laid the foundation for the Commission’s community consultative approach to law reform that continues today. Those consultative processes are recorded in the photos that line the walls of the ALRC office of the community circles undertaken on Country as part of the Recognition of Aboriginal Customary Laws (ALRC Report 31).
This event will also provide the opportunity to formally thank outgoing ALRC Commissioner, the Hon Justice John Middleton AM, for his significant contributions to law reform. Justice Middleton was first appointed as a part-time Commissioner in 2012 and has provided invaluable expertise and guidance to numerous ALRC Inquiries over the last ten years.
The lecture will take place at 5pm on Monday 5 December 2022, at the Federal Court of Australia, Melbourne, and via livestream.
The Chief Justice of the Federal Circuit and Family Court of Australia, the Hon Chief Justice Alstergren AO, has issued the Special Measures Information Notice – Hearing Protocol to replace the Special Measures Information Notice – COVID-19 Hearing Protocol, with effect from Monday, 7 November 2022 in the FCFCOA (Division 1) and FCFCOA (Division 2).
The SMIN sets out how the Courts will continue to utilise both in-person and electronic hearings, as well as the arrangements for dispute resolution and Court Children’s Service events.
It also specifies the COVIDSafe measures that continue to apply. Some of the COVIDSafe measures have been relaxed, including removing the restriction on the Courts providing water jugs and disposable cups in courtrooms.
From close of filing, Friday, 4 November 2022, the Chief Justice has revoked the FCFCOA Practice Direction – COVID-19 Special Measures. This document provided for the filing of documents that had not been witnessed, the deferral of fee payments, filing of documents by email, and other COVID-19 measures.
All documents should continue to be filed electronically through the Commonwealth Courts Portal or eLodgment. For documents that cannot be filed electronically through the Commonwealth Courts Portal, they may be lodged for filing by email, by post, or in the registry.
These changes will be reflected on the website shortly. The Hearing Protocol is live here: FCFCOA Special Measures Information Notice: Hearing protocol | Federal Circuit and Family Court of Australia
The Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection continues to apply.
The Australian Bar Association welcomes today’s announcement that the Hon. Justice Jayne Jagot has been appointed as the 56th person to be a judge of the High Court of Australia.
The welcome speeches, including by ABA President Dr Matt Collins AM KC, can be viewed here. Transcripts are available here.
The Australian Bar Association is deeply concerned by the appointment of Attorney-General Tetiro Semilota to the position of Acting Chief Justice of Kiribati.
A snapshot of the New South Wales Bar in 2022. (Photo courtesy @NSWBarPresident)
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On 26 October 2022, Honourable Linda Dessau AC, Governor of Victoria, attended the Victorian Bar’s dinner in honour of the life and service of Her Majesty The Late Queen Elizabeth II.
On 10 October 2022, the silks appointed around Australia in 2020 and 2021 announced their appearances at a ceremonial sitting of the Full Court of the High Court in Canberra.
5 December 2022 — Inaugural Michael Kirby Lecture
23–27 January 2023 — Advanced Trial Advocacy Intensive
28–30 September 2023 — ABA Annual Conference
Delayed judgments in the Federal Circuit and Family Court of Australia
ABA Podcast: Oral Advocacy for Junior Counsel
Seminar: Commercial Arbitration and the Victorian Courts
2022 United Nations Climate Change Conference
CPD: Working With Interpreters for Legal Practitioners
AIJA Indigenous Justice conference
High Court (2023 Sittings) Rules 2022
Resolution Institution International Conference 2022
Your national representative body has been very active over the past quarter.
On 1 September, the ABA’s new national Find-A-Barrister database went live. This has been a longstanding project of the ABA and I was very pleased to see it launched after such a long gestation. More than 1,500 barristers have already opted in to the service which we expect will, over time, become the go-to resource for solicitors and clients seeking barristers who have, or aspire to have, national practices. It will reduce the frustration inherent in having to go to different State or Territory based databases, or clerk or list level websites, in order to identify the best available barristers in different practice areas. I encourage anyone who has not already done so to create a profile on the site, and to have a ‘play’ with the database to see just how flexible and user friendly it is. More information appears below.
Since the last edition of The National Brief, we have also launched another ABA first—a national CPD program of streamed seminars, drawing upon the expertise of the ABA’s Committees. The first two seminars were very well attended, and addressed respectively appellate practice and procedure in the Federal Circuit and Family Court of Australia, and practice development for the junior Bar post-covid. The seminars are available to be streamed online by following the above links. Many more seminars are planned for the weeks and months ahead. For more information, see here.
It has been very enjoyable over the last couple of months to be able to move more freely around the country and to see so many barristers right around Australia getting back to what we do best, in-person advocacy. It has also been a pleasure to see the collegiality of the State and Territory Bars on display at Bench and Bar dinners in NSW, Queensland and the ACT, as well as conferences, seminars and other events.
It has been disturbing over the past couple of months to watch the deteriorating situation in Kiribati, where the government has ‘suspended’ the appointments of senior judges including the Chief Justice, three members of the Court of Appeal and Australian citizen Justice David Lambourne. Judicial officers must have security of tenure, and independence enabling them to determine disputes according to law without fear of recriminations and attacks on their integrity. On this, the profession speaks with one voice. The ABA was pleased to collaborate with the Law Council of Australia in expressing our deep concern on behalf of all Australian practitioners.
Finally, it has been a sombre week following the passing of Queen Elizabeth II. The ABA’s statement of condolences and tribute can be found here.
More than 1,500 barristers from around Australia have already created profiles on the ABA’s new national Find-A-Barrister database. If you are not among them, can you afford not to join them? It is not to late to create a profile if you have not done so already, and you can amend and update your profile at any time.
Why should I register?
The national Find-A-Barrister database is a one-stop shop enabling clients and solicitors to select Australian barristers for briefing opportunities around the country. To register, just click this link.
How long does it take?
Registering from start to finish should take no longer than 10 minutes. Simply fill in the criteria, upload a photo if you wish, and submit your profile.
What information is required?
The national Find-A-Barrister database is an opt-in service that enables you to record your qualifications, dates of admission and call, date of taking silk (where applicable), previous occupations and specialised practice areas, and to upload a photo.
You can also link up to a maximum of three external sites on your profile, such as the website of your home Bar, your clerk, or a personal website. The service also provides users with simple and advanced search options and the ability to print user-friendly profiles of barristers and lists of search results.
The Federal Circuit and Family Court of Australia has reviewed its complaints policy in relation to the delay in delivery of reserved judgments, and established a protocol relating to the delivery of reserved judgments.
The protocol is designed to ensure that decisions are handed down, and reasons are given, as expeditiously as possible. While the benchmark for delivery of reserved judgments remains three months, the Court’s complaints policy and procedure have been changed to include that a complaint may only be referred to the Court by the President of the Bar Association or the Law Society after a period of six months from the date of the hearing or receipt of written submissions has elapsed.
Complaints policy | Judicial complaints procedure
The ABA’s new CPD program is now underway, running webinars presented by our committees at least once a month.
6 October 2022: Presented by the Taxation Committee — What Tribunal Members Want
The Australian Bar Association Taxation Committee invites you to hear what Members of the Administrative Appeals Tribunal (AAT) want from representatives in tax cases.
Join Deputy President McCabe and Deputy President O’Loughlin of the AAT together with senior and junior tax counsel for a discussion of what to do (and not to do) when preparing and appearing in tax cases.
CHAIR: Kristen Deards SC (Banco Chambers and Chair of the Australian Bar Association Taxation Committee)
SPEAKERS: Deputy President McCabe (AAT), Deputy President O’Loughlin (AAT), Rashelle Seiden SC (Ground Floor Wentworth Chambers), Ermelinda Kovacs (Ground Floor Wentworth Chambers), Alissa Crittenden (List A Barristers)
CPD POINT: This seminar may be eligible for 1 CPD point under State CPD programs. It is the responsibility of the individual member to determine whether CPD points can be earned for an attendance of an event hosted by the ABA, as the mandatory continuing professional development requirements vary between each state and territory. Please refer to your relevant state or territory law society in advance of the event for further information.
This and all other ABA CPDs will be available on demand after the event. Already available:
Presented by the Family Law Committee — Appellate Practice and Procedure in the Federal Circuit and Family Court of Australia
A seminar presented by his Honour Justice Austin, Judge Manager of the Appellate Division of the Federal Circuit and Family Court of Australia, on appellate practice and procedure, with Michael Kearney SC as chair.
Presented by the Practice Development Committee — Practice Development For the Junior Bar Post-Covid
What's changed? What's working? How to develop a resilient practice in the new normal.
Presented by Dominique Hogan-Doran SC, Chair, ABA Practice Development Committee; Holly Veale, of the South Australian Bar; and Emma Hoolahan of the NSW Barristers' Clerks Association.
Work is underway to create a dedicated website for all of our on-demand content, from CPDs to podcasts.
Rachel Doyle SC of the Victorian Bar is joined by Kate Burke (VIC), Andris Gauja (NSW), Jim Hartley (VIC) and Anne Sibree (SA) to discuss oral advocacy for junior barristers, particularly in light of the Notice to the Profession issued by the Supreme Court of Victoria in late 2021.
Hosted by the Monash Law Faculty Commercial Disputes Group, this seminar (available both in-person and online) focuses on the recent work of Victorian Courts with respect to commercial arbitration. This includes developments in court practice, as well as topical issues that have arisen over the last few years in commercial arbitration law and procedure. This will be of interest for anyone interested in commercial arbitration in Australia, including academics, solicitors, counsel and judges.
Among the speakers are Professor the Honourable Clyde Croft (chair); Dr Drossos Stamboulakis of Monash University (co-chair and facilitator); the Honourable Justice Delany, Acting Principal Judge of the Commercial Court, Supreme Court of Victoria; the Honourable Justice Lyons, Judge in Charge of the Arbitration List, Commercial Court, Supreme Court of Victoria; Her Honour Judge Brimer, Judge in Charge of the Arbitration List, County Court of Victoria; and Her Honour Judge Burchell of the County Court of Victoria.
Monday 17 October, 5 – 7pm — register here
The Australian Bar Association is proud to support Australian Arbitration Week, taking place in Melbourne from 7 to 11 November. The keynote will be presented by the Hon. Chief Justice Susan Kiefel AC. AAW will include seminars, lectures, workshops and panels, led by a range of experts in the field.
For more information and the calendar of events, go to the AAW website.
Are you planning to attend COP27 in November? The United Kingdom’s Environmental Law Association (UKELA) is working with the International Bar Association and the Law Society of England and Wales to create an international network of law societies and bar associations to coordinate work looking at the implications of climate change on legal practice.
The network aims to share approaches on providing climate change pledges and guidance for lawyers; share best practices, policy positions and practices developed by bars themselves; and collaborate to approach COP27 together for the greatest impact in addressing the climate crisis, safeguarding the rule of law, access to justice and protection of human rights in that context.
Many international legal associations will be participating at COP27.
If any ABA members are attending COP27 and are interested in representing the ABA at the conference, please get in touch at ceo@austbar.asn.au.
The Judicial Council on Cultural Diversity is offering an eLearning course to assist practitioners to develop their skills when using interpreters in courts and tribunals.
What you will learn
Duration 2 hours
Access via MyAusLearning
For more information, go to jccd.org.au or email secretariat@jccd.org.au
The Australasian Institute of Judicial Administration (AIJA), in collaboration with the Law Society of New South Wales, is proud to present the 2022 AIJA Indigenous Youth Justice Conference in a hybrid format to be hosted in Sydney and online from Saturday 29 to Sunday 30 October 2022.
The conference will examine many of the thorny, complex issues associated with Indigenous youth justice and promote meaningful discussion about ways to improve the situation. Delegates will be guided by the conference’s expert presenters, including elders, community leaders, medical specialists and academics, Aboriginal and Torres Strait Islander members of the judiciary and legal profession.
For more information, including registration and programming, click here.
The Justice of the High Court of Australia have made a Rule of Court appointing the High Court sittings for 2023. The Rule of Court is available here.
The Rule of Court appoints the Full Court sittings to be held in Canberra throughout the year and the days on which special leave applications will be heard. Where required, and if practicable, sittings of the Court will continue to be held in Adelaide, Brisbane, Darwin, Hobart and Perth. Additional sittings may also be held on other days as required, for example in matters requiring expedition. These sittings will be appointed by the Chief Justice pursuant to Rule 6.04.2 of the High Court Rules 2004.
Additionally, phone numbers for the following registries have been updated:
Australasia's largest dispute resolution organisation, Resolution Institute, is holding its 2022 international conference, Green Shoots: Emerging Trends In Dispute Resolution
As the world emerges from a tumultuous period brought on by a global pandemic, dispute resolution processes have remained an integral component of building and maintaining healthy and equitable outcomes for all communities. The projected economic outlook in global and local economies, foreshadows the green shoots of recovery are emerging and will transform to vibrant growth across a wide range of sectors.
Supported by global institutes, government, industry associations, and sponsors, this one day premier conference supported by a series of speciality masterclasses will bring together practitioners, key influencers and stakeholders from business, government, judiciary, commercial and academia, addressing developments and opportunities across a wide range of sectors.
For more information, go to resolution.institute/conference2022
The Justices of the High Court have considered a review of the material filed by the parties in a number of cases heard by the Full Court in 2021 and 2022.
The Justices are concerned by the amount of material included in the parties’ Books of Further Material and the (often voluminous) Joint Books of Authorities which is not referred to in the hearing. The Justices have also noted that in a number of cases supplementary material is filed in the lead up to or during the course of the hearing. The late filing of material causes particular difficulties for members of the Court relying on the electronic version of material and for hearings conducted remotely.
The provisions in the High Court Rules 2004 and Practice Direction No 1 of 2019 relating to the material to be filed in advance of a full court hearing are designed to ensure that all necessary material is provided to the Court in a suitable form and in a timely manner.
Counsel are reminded of the need for proper oversight of the settling of the contents of the Books of Further Materials and the Joint Books of Authorities to ensure that only necessary material, to which reference will be made during the course of oral argument, is reproduced. Counsel should also ensure that the need to file supplementary books of material and authorities in the lead up to or during the hearing is avoided.
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Statement on the Use of Postnominals
Upon the passing of Her Majesty Elizabeth II, Queen's Counsel (QCs) automatically become King's Counsel (KCs).
Passing of Her Majesty Queen Elizabeth II
The Australian Bar Association (ABA), on behalf of Australia’s more than 6,000 barristers, offers heartfelt condolences to the family of Queen Elizabeth II upon the passing of Her Majesty.
Australian Legal Profession Deeply Concerned about Attacks on Judicial Independence in Kiribati
The Law Council of Australia and the Australian Bar Association express deep concern about recent events in Kiribati.
Australian Bar Association launches national Find-A-Barrister service
The Australian Bar Association (ABA) is set to launch an Australian first national Find-A-Barrister service on Thursday, 1 September 2022.
Australian Bar Association Welcomes Western Australia to the National Legal Profession
Western Australia today joins the uniform regulatory scheme for Australian legal practitioners, the third State to do so since the scheme came into operation in New South Wales and Victoria in 2015.
Róisín Annesley QC, President of the Victorian Bar, met with the Honourable Linda Dessau AC, Governor of Victoria, on 23 August 2022 to update the Governor on the work of the Bar. Image courtesy @VicGovernor
NSW Bar’s annual Spring Dinner was held on Friday 2 September 2022. The Honourable Andrew Bell, Chief Justice of the Supreme Court of NSW, was the guest of honour. Image courtesy of the NSW Bar.
The Bar Association of Queensland held its Bar Dinner on Friday 9 September, and the ACT Bar's Bench and Bar Dinner took place on Friday 16 September. The Honourable Justice Thawley of the Federal Court of Australia was the guest speaker, with Mr Brodie Buckland of Blackburn Chambers as Mr Junior.
October 6 - 7
Resolution Institute International Conference 2022
17 October 2022
Seminar: Commercial Arbitration in Victoria
29 - 30 October 2022
2022 AIJA Indigenous Youth Justice Conference
7- 11 November 2022
Australian Arbitration Week
18 November 2022
WA Bar Dinner
It was wonderful to catch up, in person, with so many colleagues and friends at the ABA’s centrepiece event for 2022, Re-Emerge, in Melbourne at the end of April. A full conference report appears below.
There were many highlights, but what stood out to me above all was the collegiality and sense of purpose of our profession, and a preparedness to engage in some difficult and provocative conversations about the implications of the past two years for the administration of justice, the rule of law and our practice as specialist advocates. Feedback from those who attended was uniformly positive. The ABA Council has resolved to start planning for a National Conference in 2023.
On 1 June 2022, I attended a function in Perth to mark Western Australia joining the Uniform Legal Profession Scheme. This is a significant milestone on the road towards a truly national legal profession. Once Western Australia formally joins the scheme on 1 July 2022, 75% of Australia’s legal practitioners will practice under what is, in substance, a single regulatory framework, with common rules of practice and conduct, and very significant advantages for those barristers with, or aspiring to develop, national practices.
Speaking of the national profession, the ABA’s National Barrister Database project is progressing nicely. If you have not done so already, please create a profile so that you can be found when the database goes live later this year. There is more information in the message below.
The ABA has been very active in the period since the conclusion of the conference. We will very shortly be launching the first episodes in a new podcast series directed at barristers and those aspiring to join our ranks, and our first-ever national CPD program, which will provide high-quality continuing professional development seminars and panel discussions, available freely to all members of the ABA, drawing on the expertise of the ABA’s specialist committees. We are also working on other exciting member benefits, which I look forward to informing members about in the near future.
Re-Emerge 202
2, the ABA’s National Conference, took place at the end of April. For three days, the State Library of Victoria’s conference spaces were full of barristers and judges from around Australia. The panel discussions were lively and stimulating, and the audience was highly engaged.
Despite the disruptions caused by the pandemic, the rapid development of remote technology — a topic of considerable debate across the whole conference — enabled the participation of speakers from around Australia and the world, including Professor Richard Susskind OBE, our international keynote speaker; Mrs Justice Sara Cockerill, Judge in Charge of the Commercial Court (England); and Justice Sally Fitzgerald of the High Court of New Zealand.
The conference opened with keynotes from the Hon. Stephen Gageler AC, Justice of the High Court of Australia, and Professor Richard Susskind OBE, followed by responses from the Hon. James Allsop AO, Chief Justice of the Federal Court of Australia, and finally the Bar’s Right of Reply from Jennifer Batrouney AM QC, Dominique Hogan-Doran SC and Kateena O’Gorman. The pandemic’s impact on the legal profession, the rise of remote hearings and the future role of technology in law were key themes of the afternoon, along with the effects on collegiality, informal professional development and non-traditional networking opportunities. These topics came up frequently over the course of the conference.
Welcome drinks were held on Thursday evening in the evocative Old Melbourne Gaol, where delegates ate, drank and conversed under the watchful eye of Ned Kelly’s death mask. The Gaol provided a unique, slightly macabre setting for our profession’s first national social event since the beginning of the pandemic.
Friday night’s gala dinner took place at the W Hotel, with entertainment in the form of a mock royal commission, the ABA Inquiry into COVID and Disputed Borders. The Commissioner, the Hon. Justice Virginia Bell AC, ably assisted by Elizabeth Ruddle QC, oversaw an evening rich with laughs and shenanigans.
Representing the States and Commonwealth were: Lisa Hannon QC for the Commonwealth of Australia; Nick Ferrett QC for Queensland; Sue Chrysanthou SC for New South Wales; Mark Costello for Victoria; Matt Howard SC for Western Australia; Patrick O’Halloran for Tasmania; and Alistair Wyvill SC for the Territories. There was no appearance for South Australia. Adam Baker of the Victorian Bar acted as Commissioner Officer-Tipstaff. Paul Hayes QC expertly organised the entertainment.
On the final morning of the conference—held just three weeks before the federal election—delegates heard from then Commonwealth Attorney-General Senator the Hon. Michaelia Cash and then Shadow Attorney-General the Hon. Mark Dreyfus MP QC. Their addresses were the closest we came during the election campaign to a genuine exchange of ideas in relation to questions of policy in the justice sector. Their addresses can be viewed here.
In total, the conference featured more than 20 hours of content. All delegates have received access to an on-demand service enabling them to revisit sessions they attended at the conference and watch any sessions that they missed, together with transcripts.
Many thanks to the steering committee and the teams at The Production House Events and the State Library for their hard work in making the conference run so smoothly, to our superb slate of Partners, Sponsors and Supporters, and the Victorian State Government for its support.
Re-Emerge 2022 photographs courtesy of Organic Photo.
Members will be aware that important amendments to rule 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 have come into effect.
Justin Hogan-Doran SC and Penny Thew of the NSW Bar have published a very helpful paper discussing the impact of the changes.
Penny Thew further discusses the effect this change will have on the Conduct Rules here.
The ABA’s new find-a-barrister service will provide access to a national database of profiles, showcasing barristers, wherever they are based, available to accept briefs anywhere in Australia.
The National Find-A-Barrister Database is an opt-in service that enables you to record your qualifications, dates of admission and call, date of taking silk (where applicable), previous occupations and specialised practice areas, and upload a photo.
You can record your preparedness to accept briefs Australia-wide and whether you are a First Nations barrister, a nationally accredited mediator, and have adopted the Law Council of Australia’s Equitable Briefing Policy.
To ensure that your profile is visible on the site when it launches, please create one as soon as possible by visiting our website. Please note that you will not appear in the find-a-barrister profile database unless you create a profile.
You can also link to up to three external sites on your profile, such as the website of your home Bar or your clerk or set, or a personal site.
The service provides users with simple and advanced search options and the ability to print user-friendly profiles of barristers and lists of search results.
Register your profile so you can be found when this exciting new service goes live.
Australian Bar Association Responds To Prime Minister’s Attack On Barristers
The Australian Bar Association responded forcefully to the (then) Prime Minister’s remarks that he “didn’t care if [barristers] disagree with me” and that “I’ve never had much truck with them over the course of my entire political career.”
[AFR, subscription required] High Court judge urges fight against online justice
High Court judge Patrick Keane has called on the legal profession to resist any pressure to take the justice system online and warned against any drift to US-style hearings in Australia’s top courts.
[AFR, subscription required] I’m not a ‘technophobe’, but online hearings are ‘wrong’: chief justice
Technology should not be allowed to become “the master” of society or the justice system, and the push for remote hearings was “fundamentally wrong”, NSW Chief Justice Andrew Bell said.
[Crikey] Dreyfus attacks Collaery prosecution: ‘an affront to the rule of law.’
(Then) Shadow Attorney-General Mark Dreyfus has criticised the conduct of the trial of Bernard Collaery and questioned the public interest in its continuation.
[AFR, subscription required] Dreyfus blasts nine-year ‘attack’ on rule of law
(Then) Shadow Attorney-General Mark Dreyfus outlined his party’s legal agenda on the closing day of the Australian Bar Association’s national conference, saying a federal anti-corruption commission and a “merit-based” appointments process for courts and tribunals were priorities.
[AFR, subscription required] ‘Don’t touch’: Kenneth Hayne on sexual harassment in law
Former High Court judge and banking royal commissioner Kenneth Hayne has made a passionate plea for “cultural change” in the legal profession to tackle the continuing problem of sexual harassment.
[AFR, subscription required] Don’t snap back to 2020’s ways of working, says Victoria’s top judge
Victorian Chief Justice Anne Ferguson has rejected the get-back-to-the-office stance of some senior judges, saying it would be a mistake to “snap back to March 2020”.
[AFR, subscription required] Judge’s advice to Gen Y lawyers: ‘get back to the office.’
High Court Justice Stephen Gageler has urged lawyers to get back into “the room where it happens” in a stark warning to the profession as it emerges from the coronavirus pandemic.
Following two Covid-related postponements, the Silks Bows ceremonies for 2020 and 2021 will take place on Monday 10 October 2022, at the High Court of Australia in Canberra.
A dinner will follow at the National Gallery of Australia.
Invitations have been sent to all silks appointed in Australia in each of 2020 and 2021.
The toast to the new silks will be made by the Hon. Patrick Keane, Justice of the High Court of Australia. The response will be provided by Ben Doyle SC of the South Australian Bar.
Michael Mc
Hugh SC, who is a Vice-President of the ABA, stepped down from his role as President of the NSW Bar Association on 12 May, following an 18-month term. Gabrielle Bashir SC was elected as the new President of the NSW Bar Association. In thanks for his service, Mr McHugh was awarded a lifetime membership of the NSW Bar Association.
The Victorian Bar Dinner took place on Friday 28 May, with addresses from Jaclyn Symes MP, Attorney-General for the State of Victoria, and the Honourable Justice William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia. Photo credit: the Victorian Bar.
A very well-attended day of discussions, followed by a dinner, took place in Perth on 1 June 2022 to mark the fact that Western Australia will become part of the uniform legal profession with effect from 1 July 2022. At the dinner, Western Australian Attorney-General, the Hon. John Quigley MLA, explained the long process that has led to this point and the many advantages that joining the uniform scheme will bring to legal practitioners in his State.
Dr Matt Collins AM QC
As I write, there is a definite sense that the nation is returning to something resembling normality after the extraordinary disruption of the last two years. In the justice sector, there is an enormous amount of work and rebuilding to be done. The backlog in jury trials, in particular, is daunting, and ongoing restrictions on in-person hearings mean that it will still be some time before meaningful inroads can be made. But the pandemic has upended more than just how we practice our craft—it has tested our mental health, our values and every aspect of our home and personal lives.
As a profession, we must reflect on all of these impacts. What should we retain from the adapted practices we have adopted in a period characterised by restrictions on freedom of movement, working from home, and remote hearings? What features should we jettison? How has the justice system held up during this unprecedented period? What do different work patterns mean for chambers and the collegiality of the bar?
All of these issues, and more, will be the focus of the ABA’s centrepiece event for 2022, Re-Emerge: The Australian Bar After Covid-19 — Energised, Innovative, Enduring. If you have not done so already, I urge you to register for the conference at www.re-emerge2022.com.au. In-person tickets are limited and selling fast.
Re-Emerge 2022 will be a unique opportunity to reconnect with colleagues, pause and reflect on a momentous two years, with the benefit of provocative panel discussions with thought leaders drawn from the judiciary, the bar, politics, the academy and elsewhere. I am very much looking forward to seeing members from around the nation in Melbourne in just over a month.
The ABA Council met for its quarterly meeting on 22 February 2022. Among other matters, we discussed the return to in-person advocacy training through the auspices of the ABA’s Advocacy Training Council, the work of the ABA’s specialist committees, and a planned ambitious program of CPD seminars and podcasts for members.
Next month will mark the long-awaited launch of the first national database of profiles of Australian barristers (as to which, see more below). I encourage all members to create a profile on the new national database in preparation for its launch. I expect that, over time, the database will become the “go-to” service for clients and solicitors seeking barristers with expertise in particular practice areas and prepared to accept briefs all around Australia.
On behalf of the ABA, I extend my thoughts and best wishes to all those affected by the recent floods in NSW and Queensland, and to our colleagues at the Ukrainian Bar and Ukrainian National Bar Associations who are facing a desperate period of uncertainty and fear.
As always, please feel free to contact me concerning any ABA-related matter.
Thursday 28–Saturday 30 April 2022, in Melbourne and fully live-streamed
In-person tickets are selling fast for the unmissable legal conference of the year, RE-EMERGE 2022: the Australian Bar After Covid-19—Energised, Innovative, Enduring.
The conference will be held in the spectacularly renovated State Library of Victoria. Conference sessions will be available ‘on-demand’ to registrants who cannot attend in person.
Welcome drinks will be hosted at the Old Melbourne Gaol. The gala dinner will be at the stunning new W Melbourne.
Dinners will be hosted on the first night of the conference by Victorian Bar associations and committees to welcome visiting delegates.
The program for the conference is now close to finalised and can be viewed in full on the conference website, www.re-emerge2022.com.au. Highlights include addresses by Senator the Hon. Michaelia Cash, the Hon. Stephen Gageler AC, Professor Richard Susskind OBE, the Hon. James Allsop AO and the Hon. Anne Ferguson.
The opening plenary session of the conference, Where Goes Australia? The federation (politically) after the pandemic, presented in association with the conference’s major partner, The Australian Financial Review, will bring together a high profile panel of Australians, including Matthew Howard SC, Róisín Annesley QC and Peter Dunning QC of the Australian Bar, together with Jennifer Hewett (national columnist, The Australian Financial Review), Tass Liveris (President, Law Council of Australia) and Professor Brendan Murphy (Secretary, Commonwealth Department of Health). They will discuss the many ways in which standard conceptions about our federation were upended in 2020 and 2021.
Other sessions in the conference will explore how Australia’s management of the pandemic has sat with fundamental constitutional principles, the physical and emotional impacts the past two years have wrought on society and legal practitioners and what the pandemic has exposed about the ethics and culture of the bar. There will be specialist streams for commercial, criminal and common law, and taxation barristers.
Several sessions at the conference will explore how the pandemic has challenged or presented opportunities for many aspects of the way in which justice is administered, and law is practised. There will also be a focus on the future of the Uluru Statement From the Heart, the proposal for a First Nations Voice to Parliament, and the challenges faced by those among our colleagues who practise with a disability.
The conference will close with a star-studded War Room panel that asks how well prepared we are as a society, polity, profession and connected world for the next pandemic.
RE-EMERGE 2022 will be a highlight of 2022, helping to set the agenda for the Australian Bar as we re-emerge energised, innovative and enduring from two years of Covid-19 imposed restrictions.
Image credit - Old Melbourne Gaol.
MAJOR PARTNERS
Amendments to the Legal Profession Uniform Conduct (Barristers) Rules—which currently apply to all barristers in NSW and Victoria—came into effect on 4 March 2022. Their commencement follows a long period of consultation and advocacy by the ABA on behalf of members.
Broadly, the amendments extend the circumstances in which barristers can be professionally sanctioned for engaging in conduct which constitutes discrimination, sexual harassment and bullying to social functions connected with the bar or the legal profession, and interactions with a person with whom the barrister has, or has had, a professional relationship. The definition of bullying has also been broadened.
The amended rules can be found here.
A thought experiment: you are a client or solicitor in need of the assistance of counsel. Perhaps you brief someone you have already worked with? Perhaps you go to the website of a State or Territory Bar Association and conduct a search or browse? Maybe you search the website of a clerk or set of chambers?
Whichever of those options you adopt, you will be exposed only to a subset of the extraordinary talent at Australia’s independent referral bars.
Wouldn’t it be better if there were a national database of profiles showcasing barristers, wherever they are based, available to accept briefs anywhere in Australia?
Well, soon there will be.
To coincide with the commencement of Re-Emerge2022, the ABA will launch a new find-a-barrister service on the ABA’s website. The service will be opt-in only.
To ensure that your profile is visible on the site when it launches, please create one as soon as possible, by visiting https://fab.austbar.asn.au/login#register. You will not appear in the find-a-barrister profile database unless you create a profile.
The service enables you to record your qualifications, dates of admission and call, date of taking silk (where applicable), previous occupations and specialised practice areas, and to upload a photo. You can record your preparedness to accept briefs Australia-wide, and whether you are a First Nations barrister, a nationally accredited mediator, and have adopted the Law Council of Australia’s Equitable Briefing Policy.
You can also embed up to three external sites on your profile containing more detailed information about you, including the website of your home Bar or your clerk or set, or a personal site.
The service provides users with simple and advanced search options and the ability to print user-friendly profiles of barristers and lists of search results.
Over time, the ABA’s find-a-barrister service will become the go-to site for clients and solicitors seeking the best available barrister for their matter. Unless you create a profile, you risk missing out.
Register your profile today at https://fab.austbar.asn.au/login#register so that you can be found when the new service launches on 28 April 2022.
In 2021, the ABA pioneered a series of podcasts, focussing on the elimination of sexual harassment and fostering a culture of respect and diversity at the bar. In the first podcast, former President Matthew Howard SC spoke with the Hon. Ken Hayne AC QC and Kate Eastman SC. In the second podcast, Matt and Kate spoke with Rachel Doyle QC about her book, Power and Consent. In the third podcast, Matt and Kate were joined by Associate Professor Michael Flood from the Queensland University of Technology. In the fourth and final podcast for the year, Matt and Kate discussed the #metoo movement and the bringing of the bar within the legal framework of the Sex Discrimination Act 1984 (Cth).
In the first in the ABA’s podcast series for 2022, we will be looking at the changing landscape of advocacy, with a particular focus on the challenges faced by junior barristers in getting on their feet, including in remote hearings. Look out for that podcast in early April, in which a panel of barristers from different levels of seniority and backgrounds, and different jurisdictions, discuss their experiences.
Also, this year, the ABA will be producing a series of podcasts highlighting the pathways to the bar taken by barristers from unexpected backgrounds. Look out for the first in that series in early April. And—if you think you have a pathway to the bar that others might be intrigued or inspired by, let us know by emailing info@austbar.asn.au.
The ABA’s 2022 podcast series will be accessible at https://austbar.asn.au/news-media/podcasts
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Covid restrictions meant that the ceremonies at which newly appointed silks take their bows in the High Court of Australia in Canberra, before attending a celebratory dinner had to be cancelled in both 2021 and earlier this year. The ABA is working with the High Court to ensure that all silks appointed in 2020 and 2021 have the opportunity to mark that special occasion. More information to come.
New South Wales has welcomed the appointments of the Hon. Andrew Bell as Chief Justice of NSW, and the Hon. Julie Ward as President of the NSW Court of Appeal.
The Australian Capital Territory has welcomed the appointment of the Hon. Lucy McCallum, formerly a judge of appeal on the NSW Supreme Court, as Chief Justice of the Australian Capital Territory.
On 3 March, the Hon. Justice Gordon AC launched the coffee table-sized book, Vic Bar: A History of the Victorian Bar, by Dr Peter Yule. The evening was well attended by members and judges.
Image credit - The Victorian Bar
25 March 2022
NSW Bench and Bar Dinner
26 March 2022
Queensland Bar Association Annual Conference
28 April 2022
ABA National Find-A-Barrister Database launch
28–30 April 2022
RE-EMERGE 2022—the ABA’s annual conference: register now, tickets selling fast
30 April–1 May 2022
South Australian Bar Association annual conference
27 May 2022
Victorian Bar Dinner
The ABA held its annual general meeting on Tuesday 23 November 2021. The members of the Executive for 2022 are:
President - Dr Matt Collins AM QC
Vice Presidents - Peter Dunning QC and Michael McHugh SC
Treasurer - Andrew Muller
Chair of the Advocacy Training Council - Ian Robertson SC
The non-executive members of the Council for 2022 are:
Anna Mitchelmore SC (Vice-President, NSW Bar Association)
Duncan McConnel SC (President, NT Bar Association)
Mark Hoffmann QC (President, SA Bar Association)
Martin Cuerden SC (President, WA Bar Association)
Phillip Zeeman (President, Tasmanian Bar Association)
Tom Sullivan QC (President, Bar Association of Queensland)
Róisín Annesley QC (President, Victorian Bar)
Did you know?
The ABA was established in 1963 to be the voice of the independent referral Bars of Australia. All members of State and Territory Bar Associations are members of the ABA.
The ABA’s media release announcing the Executive and Council for 2022 can be found here.
Dr Matt Collins AM QC
Dear colleagues,
It was a great honour to be elected President of the ABA at its annual general meeting on 23 November 2021, at which we farewelled outgoing President Matthew Howard SC. Matt expertly led the ABA through two of the most challenging years in the Association’s 58-year history.
When Matt Howard became President in November 2019, the ABA had had an active year, with a highly successful and memorable conference in Singapore, a further conference in collaboration with the New Zealand Bar in Queenstown, and the usual full complement of AdvocacyTraining Council courses and other activities.
On 3 February 2020, the Council came together in Canberra for the annual silks bows ceremony in the High Court, blissfully unaware of what was about to come. There was vague talk of a strange new virus, but I don’t recall it coming up at the Council meeting or silks bows. Little did we know that that would be the last time that we would meet face-to-face for what will be, in total, more than two years.
With COVID-19 came unprecedented challenges for all of Australia’s barristers and each State and Territory Bar Association.
The ABA needed cautious, wise, sound leadership, and in Matt Howard we got that, in spades. In 2020, the ABA suspended capitation fees for a year, giving all of the Bars, but particularly those in the States most affected, none more so than my own—Victoria—breathing space to respond. Under Matt’s leadership, we restructured the ABA so that it could operate, both during the pandemic but also going forwards, with reduced overheads and expenses.
Consistent with the ABA’s strategic plan, Matt significantly increased the ABA’s communications outreach, including by introducing the National Brief, regular podcasts on topical issues, and judicious and apolitical contributions to public debate on matters relevant to the administration of justice, the rule of law and the importance of an independent judiciary and Bar. The ABA has continued, throughout the pandemic, to be an important voice on issues of vital relevance to Australia’s barristers.
I hope, as President over the coming year, to continue and build on these foundations as we emerge from the challenges of the past two years. At our November meeting, with optimism that the worst is now behind us, the ABA Council adopted an ambitious program of activities for the coming year that will demonstrate the value that comes from membership of your peak national body. You can read more about those priorities below.
Before signing off, could I add a word of thanks to Kylie Nomchong SC of the NSW Bar who served, with me, as Vice-President of the ABA this year, and who has retired from the Council with effect from November’s AGM. Kylie made a huge contribution to the ABA in many ways—as joint VPs, we worked closely together on many of the projects I have mentioned above and that members will benefit from in the coming year. I know I speak for all members of the Council when saying that we will miss her expertise, her perspective and her sense of fun.
Finally, could I wish all our members a happy, healthy and restorative summer. Let us all hope for a brighter 2022 in which the spectre of the pandemic recedes, just as in-person hearings and the collegiality of life in chambers returns.
Thursday 28–Saturday 30 April 2022, in Melbourne and fully live-streamed
Registrations are now open for the ABA’s 2022 National Conference. In-person tickets are limited, book now and take advantage of early-bird pricing to avoid disappointment.
RE-EMERGE 2022 will be the first national gathering of the Australian Bar for more than two years—an opportunity to re-engage, reflect on having endured two momentous, pandemic years, and participate in important discussions about what we must do to re-emerge energised, innovative and stronger than before.
In a full program over three days (the afternoon of Thursday 28, all day Friday 29 and the morning of Saturday 30 April) RE-EMERGE 2022 will bring together leaders of unrivalled expertise from the judiciary, the Bar, the legal profession, politics, academia and the media, from across Australia and internationally. Participants will be invited to reflect on the really big issues confronting the Bar, the profession and the administration of justice as we emerge from the pandemic, including:
Melbourne has been chosen as the host city for RE-EMERGE 2022 in recognition of the particular challenges it faced during the lockdowns of 2020 and 2021. Iconic venues in central Melbourne have been secured. The conference will be held in the spectacularly renovated State Library of Victoria. Welcome drinks will be in the Old Melbourne Gaol. A gala dinner will be held at the stunning new W Melbourne. Dinners will be hosted by Victorian Bar Associations and committees to welcome visiting delegates.
On the opening day of the conference, Professor Richard Susskind OBE will present a keynote address on justice re-imagined. Speakers at the conference will include, from the judiciary, among many others, Justices Gageler, Gordon, Keane and Steward of the High Court, Chief Justice Allsop of the Federal Court, Chief Justice Alstergren of the Federal Circuit and Family Court of Australia, Chief Justice Ferguson of the Supreme Court of Victoria and President Bell of the NSW Court of Appeal. Other speakers have been drawn from the apex of our national life, including Attorneys-General and other politicians, barristers, senior journalists, academics, health professionals and former Royal Commissioners. The full program is available here.
Presented in proud association with our Major Partners, the Australian Financial Review and Legal Home Loans, RE-EMERGE will be the unmissable legal event of 2022.
Register now to take advantage of early-bird rates at re-emerge2022.com.au
Following the uncertainty of 2020 and 2021, and in the hope and expectation that we will progressively emerge from the restrictions imposed because of the pandemic, the ABA Council has adopted a program for 2022 which aims to further the ABA’s strategic objectives and priorities, in accordance with the ABA’s Strategic Plan 2020–25.
Priorities for 2022 include:
The High Court in November updated its Robing Protocol for barristers appearing at special leave applications, the hearing of appeals, and matters in the Court’s original jurisdiction:
Counsel appearing before the Full Court exercising its appellate jurisdiction are to wear what is customarily worn in the Commonwealth court or the Court of Appeal or Court of Criminal Appeal of the Supreme Court from which the appeal (or application for special leave to appeal) has been brought.
For appearances before the Full Court in a matter in the Court’s original jurisdiction, counsel are to wear what is customarily worn in the Court of Appeal or Court of Criminal Appeal of the Supreme Court of the State or Territory in which they most commonly practise.
Counsel are not to robe for hearings of any kind before a single Justice, including any listing before a single Justice of a matter in the Court’s appellate jurisdiction.
Counsel are to robe for a hearing, including a directions hearing, before a single Justice of the Court sitting as the Court of Disputed Returns.
When attending a ceremonial sitting of the Full Court, counsel may wear what is customarily worn for a ceremonial sitting in the Supreme Court of the State or Territory in which they most commonly practise.
The ACT Bar Association congratulates Ms Katie Weir (pictured), who was called to the Bar in August of this year on receiving the 2021/22 Women Barrister Scholarship proudly sponsored by BarBooks Australia.
In Victoria, a photographic portrait of Richard Stanley QC was unveiled in the Peter O’Callaghan QC Gallery. Mr Stanley was a leading common law silk and was greatly respected and admired.
A portrait of Chief Justice Bathurst, commissioned by the Law Society of NSW and the NSW Bar Association, was unveiled on 30 November. It will be hung in the Banco Court alongside the portraits of past Chief Justices of New South Wales.
On 10 December, ABA President Matt Collins QC, Victorian Bar President Roísín Annesley QC and Law Institute of Victoria President Tania Wolff, at the invitation of the Hon. Chief Justice Will Alstergren (all pictured) attended the Federal Circuit and Family Court end of year function—excitedly in-person (albeit poorly back-lit).
The SA Bar Association and the Queensland Bar Association will be holding their annual conferences, respectively, on 19–20 February and 25–26 February 2022. Both have impressive line-ups of presenters. More information is available on the SA Bar Association and Queensland Bar Association websites.
ABA responds to recent commentary about judicial impartiality
The Australian Bar Association notes recent commentary in the media about analyses of the outcomes of decisions reached by individual judges – sitting both by themselves in trials or together on appeals. From those, it has been suggested that certain judges are "pro" or "anti" certain groups…
ABA Announces New Executive Team
The Australian Bar Association has announced the election of its executive team for 2021–22…
ABA Calls for Moderation in Anti-Corruption Debate
The Australian Bar Association has called for moderation in the debate over the proposed federal anti-corruption commission, after the Prime Minister yesterday compared the New South Wales Independent Commission against Corruption to a ‘kangaroo court’…
Religious Discrimination Bill 2021
The Senate has referred the Religious Discrimination Bill and related legislation to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 4 February 2022. Submissions may be made prior to 7 January 2022. More information is available here.
Social Media (Anti-Trolling) Bill
The Commonwealth Parliament has established a House of Representatives Select Committee to inquire into online harms and the issues addressed by the Social Media (Anti-Trolling) Bill and the measures it proposes. Feedback on the inquiry is encouraged and may also be provided directly to the Attorney-General’s department prior to 21 January 2022. Information on how to provide a submission is available here.
7 January 2022
Last date for submissions on the Commonwealth Religious Discrimination Bill
21 January 2022
Last date for submissions on the Social Media (Anti-Trolling) Bill
7 February 2022
Silks bows and dinner for silks appointed in 2020, High Court, Canberra
19–20 February 2022
SA Bar Association annual conference
25–26 February 2022
Queensland Bar Association annual conference
28–30 April 2022
RE-EMERGE 2022—register now to take advantage of early-bird rates
National Conference
In the last National Brief, I reported on the decision to postpone the National Conference.
We have now fixed the dates of 28-30 April 2022 for the Conference which will take place both physically in Melbourne and fully remotely. The details are here: https://austbar.asn.au/events-calendar/details/re-emerge-2022
The postponed Conference has received great, continuing support from its presenters and our sponsors.
It will be a wonderful opportunity for the National Bar to gather together again and I commend the program to you. Can I acknowledge, again, the enormous work done by Dr Matt Collins AM QC, the ABA’s outgoing head of Strategy Implementation Dr Liz Gray, and the many members of the Victorian Bar who have all worked for both the initial planning and rescheduling of the Conference.
Podcasts: Sexual Harassment and the Bar
With the great benefit of Liz Gray’s herding of cats, two further Podcasts have been recorded and released by the ABA on sexual harassment and the Bar.
Podcast #3 is entitled “Eliminating Sexual Harassment at the Bar: Building a Culture of Respect”; in which I was joined Dr Michael Flood of Queensland University of Technology.
In Podcast #4 Kate Eastman SC discusses “From #MeToo, through #UsToo and Respect@Work, to changes to the Sex Discrimination Act. Bringing the Bar to account.”
These have both now been distributed and placed on the website: ABA | ABA Podcast #3 (austbar.asn.au) and ABA | ABA Podcast #4 (austbar.asn.au)
The Bar and the pandemic
The ABA receives many requests from media outlets and others for comment on issues in the public domain. Usually by the Executive, but sometimes by the full Council, careful consideration is given to such requests with a view to the ABA only speaking when it feels it can make an appropriate contribution to
the particular issue. We were contacted in the last month by an international publication that specifically covers Bars and spirits: I suppose it had to happen at some point!
Amongst the questions which were posed to us were:
All of these, are excellent questions for the Bar that we are actually at.
I can say that the Bar has responded magnificently to the challenges of the pandemic and has across the board sought to continue to represent our clients and to work co-operatively with the Courts to do so. I think the Bar can be justly proud of the work it has done, and continues to do.
Sign-off
On Tuesday, 23 November 2021, the Association will hold its AGM at which time a new Executive and President will be elected.
That will bring to an end the two years I have been President and the six years of being on the ABA Council.
It has been an incredible privilege to serve as President in, it almost goes without saying, what have been an incredibly challenging couple of years for
the world, our society and the profession.
I would like to thank, especially, Greg Tolhurst who has been (and remains) an incredibly hardworking, thoughtful and insightful CEO. I would also like to thank the Executive over the last couple of years who have been always constructive, co-operative and industrious. It would, however, be remiss for
me not to single out Dr Matt Collins AM QC, Vice-President for these last two years, for his hard work, energy and wise counsel.
I have every confidence that the incoming President and Executive will continue to serve the ABA’s members most excellently.
Matthew Howard SC
President, Australian Bar Association
This week, with sadness, the ABA Council resolved to postpone the National Conference which was due to take place in mid-September physically in Melbourne and fully remotely.
When Council decided last year to hold the Conference, we had hoped that the worst of COVID-19 would be well behind us and we could bring the national Bar together in Melbourne, which had borne the brunt of the pandemic and consequent lockdowns.
Obviously, some few weeks out from the Conference our hopes and expectations have not come to pass.
We simply cannot achieve, now, the vision of bringing the national Bar together physically.
While the Conference was always intended to be fully available remotely – which also had allowed us to access high-profile international presenters – we did not intend for the Conference to be only a remote event.
For those of you who had looked at the program, it was a provocative and challenging one. We were genuinely excited by it and by the calibre of speakers we were able to attract.
We are now looking for dates in 2022 for the Conference. We have been buoyed by the genuine enthusiasm of the presenters who are very keen to remain involved.
Those on the Steering Committee – made up of Sam Hay QC (Victoria), Nicole Papaleo (Victoria), Raini Zambelli (Victoria), Jo Sorbello (Queensland) and Janet McKelvey (NSW) – have worked very hard and I wish to extend my thanks to them.
I do want to single out, however, the work and efforts of ABA Vice President Dr Matt Collins AM QC and Dr Liz Gray (Head of the Association’s Strategy Implementation).
The two of them have put in an inordinate amount of work and I want to thank them for their energy, passion and cool judgement in putting the Conference together.
Of course, we will let members know as soon as we have firmed up on a replacement date.
Regards,
Matthew Howard SC
President, Australian Bar Association
Last Friday, I was asked by a journalist to comment on the impact of lockdowns on the justice system. In response, I noted the greater impacts on, for example, jury trials and the growing backlogs in that area. I also said that the Bar had worked very hard, obviously with the rest of the profession and the Courts, to keep hearings going to continue to resolve disputes. Notwithstanding different levels of comfort and competence with technology prior to covid, the Bar has adapted rapidly to the benefit of the administration of justice. As much of the country is in lockdown at the moment, I think we can (without any false humility) take some pride in what we have done in the last 15 or so months, and continue to do. For those with a subscription to The Australian, the article is here.
Towards the end of last year, when the ABA decided to hold a National Conference in Melbourne in September, we were hopeful that we would be through the worst of the disruptions to our professional and personal lives. Obviously, that is not where we are yet.
Nonetheless, what motivated us towards the end of last year remains central: to bring the national Bar together to explore how we re-emerge from the pandemic – how we pick ourselves up and pull together, to energetically confront the challenges ahead, to innovate, and to continue providing independent representation and advice without fear or favour.
The planning for the Conference was always for it to be held fully physical and fully remote and we have been working towards delivering that. While things can, and have, moved quickly, we remain committed to delivering the 2021 National Conference in Melbourne on 16-18 September. We have secured the iconic State Library of Victoria as the conference venue, and have a robust program with more than 50 speakers including leaders in our judiciary, politicians, media and others across the legal profession.
Of course, covid-related restrictions may disrupt attendance – which is why we have engaged a state-of-the art virtual conferencing team so that everyone attending – be it in-person in Melbourne or live-streamed – will be able to contribute to the debate and explore the in-depth issues discussed.
With four sitting High Court judges in attendance, together with heads of federal and Victorian jurisdictions, eminent academics, Attorneys-General and politicians, members of the Bar and the legal profession, epidemiologists and mental health professionals, the program will provide us with an opportunity to reflect on our personal and professional journeys through the pandemic, understand key black-letter law, practice and ethical issues, and enable us to better meet the challenges and opportunities of the post-pandemic world.
Every member of the Australian Bar can access the discounted ABA Member rate, and there are a limited number of tickets available for New Barristers (those who first signed the Bar Roll on or after 1 July 2019). We have made provision for those who are unable to attend Thursday 16th because of Yom Kippur.
For those able to attend in-person, we have a great social program lined up – with welcome drinks at the Old Melbourne Gaol followed by sectional dinners hosted by Victorian Bar Associations on Thursday 16th, and the evening-wear, black-tie dinner at the stunning new W Melbourne on Friday 17th.
We’re delighted that The Australian Financial Review is a major partner of RE-EMERGE 2021, with discounts available for AFR subscribers. Subscribers to the AFR can read the article published about the conference here. I urge all members of the Bar to book early to secure their spot.
The conference website with full registration details is at re-emerge2021.com.au.
The recent reports of sexual harassment by a judge of the Federal Circuit Court were of grave concern. The ABA supports the unequivocal actions taken by the Chief Judge of the Federal Circuit Court, the Hon. Will Alstergren. On behalf of the ABA, I said to the press that, “It is unacceptable that sexual harassment within the profession and courts continues to occur. The ABA’s position is that sexual harassment must stop. As the Chief Judge forthrightly stated such behaviour is ‘unacceptable and inexcusable’. The Court’s actions and clear statements of support for the complainants are welcome. People subjected to this conduct must be heard and their experiences respected. The effects on them are often severe. The ABA has recognised that power imbalances – which are present within the law – can and do contribute to such unacceptable behaviour. The whole of the profession has an obligation to stop this behaviour continuing.”
The ABA also supports the establishment of a Federal Judicial Commission, which would be an important step to enhance the public’s confidence in the administration of justice. You can read the ABA’s statement here.
Those with subscriptions to Lawyerly can read the full press report here.
It is unfortunate that in a number of our near neighbours, the rule of law is undermined by the intimidation and incarceration of lawyers as they defend the legal rights of their clients, and political pressure on the judiciary undertaking their role in upholding the rule of law. In the last National Brief, you will remember I wrote about the ABA’s support for lawyers in Myanmar – the statement is here.
Last month, the ABA joined the Law Council of Australia and the New Zealand Law Society | Te Kāhui Ture o Aotearoa in supporting the independence of the judiciary in Samoa, which has been been criticised for performing its role in considering the consititutional questions falling out of the disputed election in that country. That statement is here.
The ABA has also joined 30 other international legal organisations in signing a joint statement organised by the Netherlands-based NGO, Lawyers for Lawyers, condemning the escalating attacks against lawyers in the Philippines. More than 60 lawyers have been killed in the Philippines since 2016, the majority of which have been related to cases in which they represent victims of human rights violations, government critics, political opposition leaders, human rights defenders, environmental activists, and people who are accused of terrorist- or drug-related crimes. The joint statement is here.
The ABA has supported the Bugmy Bar Book in publishing the Significance of Culture to Wellbeing, Healing and Rehabilitation report, by Vanessa Edwige, registered psychologist, and Dr Paul Gray, Associate Professor, UTS Jumbunna Institute of Indigenous Education and Research. Both of the authors are Directors of the Australian Indigenous Psychologists Association (AIPA).
The report attests to the importance of sentencing orders that enhance an offender's prospects of rehabilitation by providing for engagement with culturally appropriate services and programs, and that enable Indigenous communities to play a role in the healing process wherever possible. More information about the report is here.
These events traditionally take place at the opening of the legal year at the end of January or the beginning of February in the High Court. We postponed them from beginning of February this year to the first sitting date after the Court’s winter recess.
Unfortunately, after close consultation with the Court, we have postponed these important events again.
Matthew Howard SC
President, Australian Bar Association
The publication of the Review into Sexual Harassment in Victorian Courts by the former Victorian Equal Opportunity and Human Rights Commissioner, Dr Helen Szoke AO, and the Review of Sexual Harassment in the South Australian Legal Profession by the South Australian Equal Opportunity Commission, exposed again sexual harassment as a pervasive issue in the legal profession and at the Bar. The reports, again, make uncomfortable reading and, while each focuses on incidents and situations in those two individual States, the findings are of national importance and are relevant to every Bar in every State and Territory in Australia. I urge all members of the Bar to read the Review of Sexual Harassment in Victoria’s Courts here and the Report of the Review of Sexual Harassment in the South Australian Legal Profession here.
The ABA issued a statement following the release of the reports, reiterating its position of zero tolerance of sexual harassment at the Bar and acknowledging that the institutional framework of the Bar, including the implicit power imbalances and its hierarchical structure, perpetuates these unacceptable behaviours. Sexual harassment cannot be eradicated from the legal profession if people fear that they will not be heard or may face repercussions from speaking out, or that perpetrators will be protected. Sexual harassment is illegal and unacceptable in any workplace and must not be tolerated at the Bar. The ABA’s statement is here.
As the national representative body of Australia’s independent Bars, the ABA recognises our responsibility to work towards a nationally consistent approach to effect real and lasting change. The Diversity and Inclusion Committee of the ABA has been commissioned by the ABA Executive to review the Victorian and South Australian reports and develop an implementation plan, working closely with State and Territory Bar Associations.
This week we released the second in the ABA’s podcast series in which Kate Eastman SC, Chair of the ABA’s Diversity and Inclusion Committee spoke with Rachel Doyle S.C., Barrister at the Victorian Bar and author of a new monograph “Power and Consent”, published by Monash University Press. I commend the book. In the podcast, Rachel speaks about what led her to write the book, and puts forward some “red flags” as a practical way of stopping harassment. Please listen to the podcast here.
The ABA also welcomes news that Commonwealth Attorney-General Michaelia Cash announced that Parliament will strengthen protections against sexual harassment in the workplace under the Sex Discrimination Act and the Fair Work Act to include politicians and judges, together with adopting many of the other recommendations of the Report of the National Enquiry into Sexual Harassment in the Workplace (Respect @ Work Report). The ABA supported the recommendations of the Report when it was delivered in a statement you can read here and we are heartened that the new Attorney-General has announced the Government now will move to implement many of the recommendations.
In late March, I was among a number across the profession who responded to questions from the media about mechanisms to address gender parity at the Bar and on the Bench. It is the ABA’s, view that it is important that the judiciary reflects, and is seen to reflect, the community that our judicial system serves, and it can only be a good thing if disputes and proceedings are resolved by calling on collective wisdom drawn from different personalities, genders and experiences. Addressing and overcoming the barriers and behaviours that impede diverse representation at the Bar is such an important priority of the ABA. Subscribers to Lawyerly can read the article here.
2020 was an enormously significant year that will have lasting impact on our profession and our nation and the fall-out from the pandemic continues to play out in 2021. I’m delighted that we will have the opportunity to reflect on how our country, the courts, practitioners and administration of justice has changed at the 2021 ABA National Conference, in Melbourne on 16 – 18 September. The theme of the Conference is “RE-EMERGE. The Australian Bar after COVID-19: Energised, Innovative, Enduring”. This will be the first opportunity following the pandemic for members of the Bar, judiciary and others across the legal profession to come together at a national level. By September, we will be in a good position to assess and reflect on questions such as: what will be the long-term impact of the pandemic; what have we learned about our adaptability and resilience; what do we need to do to ensure we deliver value, earn respect and remain relevant in the justice sector and in society?
The conference will open on the afternoon of Thursday 16 September, with a keynote address by the Hon. Susan Kiefel AC, Chief Justice of the High Court of Australia, followed by an international keynote by the legal futurist Prof. Richard Susskind OBE. The full day program on Friday 17th and the morning of Saturday 18th will take attendees on an in-depth and reflective journey around issues such as the future of our federation, the psychological impacts of the pandemic, what future courts, juries and remote justice might look like, what is the lived experience of discrimination within our profession, how we address the ethical issues that have beset us and how our clients view us, and culminating in a War Room in which a high-profile cast of house-hold names hypothesise about the impact of the next pandemic. We’re planning a good mix of black-letter law topics and those that consider our personal, professional and social journeys as we re-emerge from the pandemic.
We’re hoping that as many of you can join us in person in Melbourne as possible. We will be offering live-streaming of the conference for those unable to attend in person. Please save the date. More information is on the ABA website here. Registration will open soon.
I’m delighted that Silks’ Bows before the High Court of Australia, and the ABA Silks’ Dinner will take place on 2 August this year. In consultation with the High Court, we delayed these events from February 2021. This is an important event that recognises the achievement of barristers attaining Senior Counsel, and underscores the collegiality of our national Bar and the critical role that we play the administration of justice. The ABA Executive and I are looking forward to meeting the 2020 cohort of silks and celebrating their success.
I am sure that many readers, like me, have looked on in horror at the use of military force to dissolve parliament, break-up protests and detain civilians in Myanmar. There have been credible reports of harassment and detention of lawyers for challenging the legality of their clients’ detention, and for filing legitimate cases. We have also noted reports that judges at all levels of courts have been dismissed without valid cause, and some placed under unlawful detention.
The Australian Bar Association and the Law Council of Australia issued a joint release last month urging Myanmar’s military government to immediately release all lawyers, judges and others detained unlawfully; take immediate, meaningful steps to enable lawyers to carry out their professional duties safely and independently, and protect them against intimidation, threats and reprisals; and guarantee to all persons due process rights in accordance with the rule of law, particularly the right to effective access to independent, competent legal assistance at all stages of the criminal process. You can read the release here.
As I write, it is a hundred years ago since, in my home jurisdiction, Edith Cowan was elected to the WA Parliament, becoming only the second woman in the common law world (and the first in Australia) to do so. In 1923 she secured the passage of a private member’s bill – which became the Women’s Legal Status Act 1923 (WA) which, amongst other things, overcame the effect of the WA Full Court’s decision in Re Haynes (1904) 6 WALR 209 that had the effect of prohibiting women from practising as lawyers.
The theme for International Women’s Day this year was #ChooseToChallenge. In considering both the early movement towards equality in the legal profession for women and the theme of this year’s IWD, I cannot help but reflect on the things that are part of the current legal environment, which are being challenged and may, in the not-too-distant future, be thought of as weirdly anachronistic. You can read the ABA’s statement on International Women’s Day 2021 here.
On 1 March, the Hon. Justice Jacqueline Gleeson took office as a Justice of the High Court of Australia. In her remarks, Justice Gleeson drew from the widely reported speech by the Hon. Tom Bathurst AC, Chief Justice of the NSW Supreme Court, at the opening of the 2021 Law Term, about the importance of public trust in the judiciary and the courts, and what measures can be taken to increase that trust. Justice Gleeson spoke about the provision of justice according to the law as proving the integrity of our courts. A recording of the Ceremonial Sitting to welcome the Hon. Justice Gleeson is here. A copy of the speech that I gave on behalf of the ABA is here, and you can read the original remarks by Bathurst CJ here.
As readers will know, the Commonwealth Parliament recently passed the Federal Circuit and Family Court of Australia Act 2021 (C’th); and the Act has now been given royal assent.
The ABA’s position is that the real problems that litigants and children face within the system/s touching on families, outlined in the March 2019 ALRC Report, are not significantly addressed by the “merger” legislation. The ABA’s position was outlined in the media release here. I spoke with Fran Kelly on Radio National about the legislation, which you can listen to here. The ALRC Report is here.
One of the issues that Bathurst CJ raised in his speech in February was about the integrity of the judiciary, which, “as an institution is dependent on the integrity of each and every judge…. Trust will only be maintained if judges maintain the highest standards of integrity in their professional, public and private lives.” The ABA expressed similar sentiments in our media release supporting the establishment of a Federal Judicial Commission, which we believe would help to reinforce trust in the administration of justice, and reflect community expectations of the transparent accountability of judicial officers outside of, and additional to, the existing appeal processes. The ABA media release is here.
The Bar, of course, is not immune to the challenges of public confidence, and it one of our priorities this year to proactively tackle the cultural behaviours at the Bar that perpetuate sexual harassment. I am very pleased that last month’s podcast, in which I spoke with the Hon. Kenneth Hayne AC QC and Kate Eastman SC, Chair of the ABA Diversity & Inclusion Committee, about respect at the Bar, achieved a wide public reception, thanks to reports in The Age / Sydney Morning Herald. The podcast, which you can listen to here, is just the first in a series we will be running through this year, to prompt discussion, debate and change in our profession. It is an issue that we need to address if the Bar is to remain relevant, trusted and respected by the community that we serve.
Many of the issues about which I write this month will be part of the topics to be discussed at the forthcoming 2021 ABA National Conference, to be held in Melbourne on 16-18 September. The conference promises to be an exciting opportunity to debate issues facing the Bar, the profession, and the provision of justice in our community as we emerge into the post-COVID environment. I invite all readers to please save the date.
Matthew Howard SC, President of the ABA
I am delighted to launch this first, nation-wide communication from the Australian Bar Association to barristers, legal professionals, students, and all those interested in the work of the ABA’s Committees, Council and members.
2020 unfolded through bushfires, a pandemic, and significant reputational issues for the legal profession. Never have we seen a year that has disturbed and disrupted so many in our profession and our community. As we settle into the “new post-COVID normal”, the ABA considers that this is the right time to launch a new monthly communication to our members, colleagues in the legal profession and the public – for there are issues that the Bar faces that need to be addressed nationally, and we believe that the ABA (with its member Bars) has a significant role to play to support adaptation, change and progress in our profession.
As I write, we all hope that the worst of the pandemic is over in this country. However, it is still with us and its extraordinary impact on society, our interactions and security, and the administration of justice will be long-lasting. That is also true for its impact on the profession and the Bar.
Profound questions have been raised of the justice system and access to it. Of course, these are not new problems, but the last year has brought them into stark focus. The Bar needs to support and help drive the reforms necessary for the benefit of the society we serve.
The ABA also has a role in articulating the value of counsel within that system, and to assist barristers to remain relevant – not for our own benefit but to continue assist in the administration of justice. The Bar does that by remaining excellent, independent and ethical in our dealings with the courts, our clients and the public.
How the post-pandemic legal and court environment will look, and the role of barristers within it, will be the theme of the ABA’s 2021 national conference, to be held 16-19 September in Melbourne. Please save the date!
While the pandemic impacted our profession dramatically, we should not underestimate the reputational impact of another event affecting the legal profession last year. The statement by the Hon. Susan Kiefel AC, Chief Justice of Australia, about the results of the Court’s independent enquiry into sexual harassment at the Court was unprecedented and sent shockwaves through both the profession and the community. The ramifications of the revelations will, and should, be widespread across the profession.
The ABA deplores sexual harassment and other harassment wherever it occurs. As I wrote in a statement on behalf of the ABA following the revelations, sexual harassment is particularly egregious when it involves the exploitation of a power imbalance. Such conduct has no place in any workplace, including the legal profession.
All members of the Bar must work to ensure that the Bar is a safe place for everyone, because if it is not seen as an environment that welcomes everyone – for women, for those identifying as LGBTIQ+, and for those from diverse cultural backgrounds – then the broader profession will move on without us. If we are not seen to reflect the community we serve, then we will become irrelevant. That will be a loss not only for our profession, but, because of the independence and quality of the representation we provide, it will be a loss for the society we serve and make the administration of justice more difficult. We need to continue to attract, develop and retain barristers of the highest standard. We improve the quality of legal services by bringing more varied experiences, perspectives and talents to the practice of law.
In February, the ABA adopted a set of Diversity and Inclusion Principles, guided by the belief that an Australian Bar should reflect the diversity of the Australian community it serves. This is no more than what the principles of justice, integrity, equity and the pursuit of excellence upon which the independent bars are founded require.
The Council of the ABA, assisted by its Diversity & Inclusion and Ethics Committees, continues to consider and work on measures that can support those Principles.
The ABA has launched a new podcast series which seeks to address this cultural issue. In the first of these, the Chair of the ABA Diversity and Inclusion Committee, Kate Eastman SC, speaks with the Hon Kenneth Hayne AC QC and me about what men at the Bar can do to eliminate sexual harassment in our profession. I invite you to listen to this first podcast here.
There must be equality and dignity in the law, as well as before the law. It is essential that the public has confidence that those responsible for upholding the rule of law behave appropriately.
I believe that the Bar’s future and relevance are intimately tied to its response. If the Bar does not respond appropriately and change, it will become irrelevant to the society it is to serve.
Finally, the ABA was invited to address the High Court at the recent ceremonial sitting to welcome the Hon Steward J. At the last moment I was unable to attend because of the ACT’s Health Guidelines following the snap lockdown of Perth. David Bloom QC very kindly read my address for the ABA – which can be found on the link here.
On behalf of the ABA, I wish all members a safe and productive 2021.
Matthew Howard SC
President, Australian Bar Association
