The National Brief #2

March 2021

A hundred years ago

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.

Our Judicial Landscape

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.

Family and Federal Circuit Courts’ “Merger”

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.

Support for a Federal Judicial Commission

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.

2021 ABA National Conference

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.