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.
