The National Brief #1

February 2021

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