IATC and World Bar Conference 2020

13 December 2019

The ABA is pleased to advise that the 4th IATC Conference website has been launched:  https://iatc2020hk.ievent.hk along with the World Bar Conference website:  https://worldbarconference2020.hkba.org.

More information as well as the opportunity to signup for the conference may be found on these newly launched websites.

The Australian Bar Association (ABA) congratulates Australia’s new Senior Counsel and Queen’s Counsel of 2019.

11 December 2019

The Australian Bar Association (ABA) congratulates Australia’s new Senior Counsel and Queen’s Counsel of 2019.

President of the Australian Bar Association, Matt Howard SC said, "I want to congratulate you on your achievement and the recognition of your character and ability that this appointment involves. In 2019, silk only continues because it makes a significant contribution to the administration of justice for the benefit of the society we serve. You are now a custodian of that office and its continuation. I look forward to congratulating you in person in February in the High Court."

The ABA will celebrate the appointment of new Senior Counsel and Queen’s Counsel at its annual Silks and Bows dinner at the High Court of Australia on Monday 3 February 2020.

The keynote speaker for the evening will be the Honourable Justice Virginia Bell AC of the High Court of Australia. Shane Drumgold SC from the ACT Bar will speak on behalf of the new silks.

 

Senior Counsel and Queen’s Counsel 2018

Australian Capital Territory: Shane Drumgold SC

New South Wales: John Catsanos SC, William Fitzsimmons SC, Richard Pontello SC, David Chin SC, Christopher Wood SC, Stefan Balafoutis SC, Tiffany Wong SC, Jason Lazarus SC, James Sheller SC, Richard Wilson SC, Patrick Flynn SC, Ross Foreman SC, Michael O'Meara SC, Christian Bova SC, Steven Golledge SC, Elizabeth Raper SC, Jennifer Single SC, Craig Lenehan SC, Tanya Smith SC, Terry Mehigan SC, Elisabeth Peden SC

Northern Territory: Stephen Allan Robson SC

Queensland: Sean Richard Riley Cooper QC, David Paul de Jersey QC, Gim John David Del Villar QC, Robert Aaldert East QC, Nitra Kidson QC, Erin Jane Longbottom QC, Philip John McCarthy QC, Daniel Stuart Piggott QC, Amelia Louise Wheatley QC

Tasmanian: Mr Paul Turner SC, Mrs Kate Louise Mooney SC

Victorian: Marylyn Smallwood SC, Ian McDonald SC, Garry Livermore SC, Patrick O’Shannessy SC, Matthew Harvey SC, Charles Shaw SC, Marita Foley SC, Jeremy Slattery SC, Malcolm Harding SC, Nicholas De Young SC, Dr Oren Bigos SC, Richard Knowles SC, Anne Hassan SC, Georgina Costello SC, Renee Enbom SC, Samuel Hay SC, Christopher Young SC, Robert Craig SC

Western Australia:  Jason Maclaurin SC, Joseph Garas SC, Henry Jackson SC, Laura Christian SC, Julie Taylor SC, Justin Whalley SC

 

MEDIA ENQUIRIES: Greg Tolhurst: ceo@austbar.asn.au 

ABA Welcomes new president Matthew Howard SC

18 November 2019

The ABA has elected Matthew Howard SC as President for 2019-2020 following outgoing President Jennifer Batrouney QC from Victoria. 

The ABA is the voice of Australia’s 6000 independent barristers. 

Mr Howard is a silk based in Perth with a commercial and public law practice, which includes some criminal law. He has been in practice for 30 years and a senior counsel for 10 years. He is the fourth WA-based barrister to lead the ABA since its formation in 1963. He has previously served as President of the Western Australian Bar and Chair of the not for profit Mental Health Law Centre of WA. Mr Howard has taught at UWA for many years where he is an adjunct professor and has taught advocacy extensively in Australia and overseas. He was recently appointed by the Prime Minister of Papua New Guinea as senior counsel assisting the Royal Commission led by former Chief Justice Sir Salamo Injia into the loan by UBS of AUD 1.2B to the PNG Government in 2014. 

Mr Howard said he was honoured to have been elected. “It is a humbling privilege to have been elected to lead the ABA with the newly-elected Executive. The Bars provide fearlessly independent legal advice and representation across the length and breadth of the country. Barristers play a vital part in the administration of justice.” 

“We are fortunate to live in a society where no person, or government is above the system of law administered by an independent judiciary.” 

“Barristers are committed to the highest standards of behaviour and provide many thousands of hours of pro bono legal work in all Courts to assist those in need”. 

“There are many challenges facing people seeking access to justice. The courts themselves have never worked harder or had such demands placed on them. The Association looks forward to continuing to play a constructive role in those issues.” 

“The national Bar is committed to reflecting the diverse society which we serve,” Mr Howard said. 

Mr Howard paid tribute to outgoing President Ms Batrouney QC, who completed her term in November. “Jennifer has made a huge contribution to the Association over many years. During her Presidency she has led the adoption of a new strategic plan and set the Association up for its next phase of operations. We are very grateful for all of her work and efforts.” 

The following Executive office-bearers were elected at the AGM over the weekend: 

President: Matthew Howard SC
Vice-Presidents: Michael McHugh SC, Matt Collins QC
Treasurer: Peter Dunning QC
Chair of the ATC: Ian Robertson SC 

MEDIA ENQUIRIES: Greg Tolhurst: ceo@austbar.asn.au 

View the PDF here

Australian Bar Association 2020-2025 Strategic Plan

18 November 2019

The Australian Bar Association’s 2020-2025 Strategic Plan was adopted at the quarterly meeting of Directors on 16 November 2019. The Strategic Plan was developed over 6 months with wide stakeholder consultation. The plan confirms a vision for the ABA of being the national voice for the independent Bars of Australia and the purposes of promoting the administration of justice, the rule of law and the excellence of the Bar. The Strategic Plan identifies the objectives and priorities that will guide the ABA Council in its decision making for the next 5 years. View the Strategic Plan by clicking the button below.

View the PDF here

Federal Court of Australia - National Defamation Practice Note

09 November 2019

The practice note for the conduct of defamation proceedings in the Federal Court has now been finalised, following consultation with the profession.

The Practice Note will take effect from 12 November 2019, and to the extent practicable, will apply to all defamation proceedings, whether commenced before or after 12 November 2019. The Court will take a flexible and common sense approach to any issues arising from the practice note being applied to existing proceedings.

The practice note will be available on the Court's website from 12 November 2019 and should be read in conjunction with the Central Practice Note, which sets out key principles of case management, as well as General Practice Notes relevant to practice in defamation proceedings. These include the Expert Evidence Practice Note, Costs Practice Note, Subpoena and Notice to Produce Practice Note, and Access to Documents and Transcripts Practice Note (which sets out the Court's approach to requests for access to Court documents).

The Court welcomes views in respect of the Defamation Practice Note. Feedback should be provided by email addressed to Rupert Burns, the National Co-ordinating Registrar for the Defamation Sub-area, at practice.notes@fedcourt.gov.au and should include a short summary of the key issues sought to be brought to the Court's attention and relevant contact details. In addition, the Court will invite further feedback from the Defamation User Group, which will be established shortly.

Defamation is a Sub-area within the Court's Other Federal Jurisdiction National Practice Area. 

View the PDF here

ACICA launch Australian Arbitration Survey

06 November 2019

ACICA has launched the Australian Arbitration Survey to gather empirical evidence from practitioners as what works in arbitration and what can be improved on. The survey will assist by, contributing to a more meaningful conversation with corporate and government decision makers to drive further investment in the area; informing collective efforts to promote international commercial arbitration in Australia and Australian cities as arbitral venues; providing a baseline against which changes in usage and perceptions in this area can be assessed and enhancing the practice of arbitration in Australia. To take the survey it is necessary to first obtain a respondent number from ACICA. Details can be found here

View the PDF here

2019 Victorian Senior Counsel Appointments

26 October 2019

The Australian Bar Association (ABA) would like to congratulate the following on their appointment as Senior Counsel by the Hon. Chief Justice Ferguson of the Victorian Supreme Court.

Marylyn Smallwood S.C.

Ian McDonald S.C.

Garry Livermore S.C.

Patrick O’Shannessy S.C. 

Matthew Harvey S.C.

Charles Shaw S.C.

Marita Foley S.C.

Jeremy Slattery S.C.

Malcolm Harding S.C.

Nicholas De Young S.C.

Dr Oren Bigos S.C.

Richard Knowles S.C.

Anne Hassan S.C.

Georgina Costello S.C.

Renee Enbom S.C. 

Samuel Hay S.C.

Christopher Young S.C.

Robert Craig S.C. 

View the PDF here

Experts in International Arbitration: #It’s Not Just a Technicality

14 October 2019

The ABA is delighted to be a supporter of the Bali International Arbitration & Mediation Centre’s Expert Summit , ‘Experts in International Arbitration: It’s not just a technicality’, speakers, conference agenda and registration detail can be found in the PDF link below.

View the PDF here

September quarter newsletter from the Legal Services Council.

07 October 2019

Please read the PDF by using the link below.

View the PDF here

Protocol for the Bar Associations of Australia to raise any concern about Judicial conduct in Commonwealth courts.

10 September 2019

The Chief Justice of the Federal Court of Australia, the Chief Justice of the Family Court of Australia and the Chief Judge of the Federal Circuit Court of Australia have agreed with the President of the Australian Bar Association and, through her, the Presidents of the State and Territory Bar Associations the terms of a protocol for the President of the Australian Bar Association and the Presidents of State and Territory Bar Associations to raise any concerns from time to time with the heads of those jurisdictions about judicial conduct.

View the PDF here

2019 ABA Annual General Meeting

10 September 2019

The ABA AGM will be on 16 November at 9:30am at the NSW Bar Association, Selborne Chambers, 174 Phillip Street, Sydney. All members are welcome to attend. 

ABA submission to the National Inquiry into Sexual Harassment in Australian Workplaces

05 March 2019

View the PDF here

ABA Committee membership: Expressions of interest

12 February 2019

The Australian Bar Association draws upon the experience and knowledge of its members to effectively represent the profession and advance public debate on law reform and legal policy issues.

The ABA's committees are comprised of members from the Association's constituent bodies.

Each year the ABA reviews the need for committees, the role of each committee and membership of committees.

A list of committees receiving nominations can be found here: http://austbar.asn.au/about-the-aba/aba-committees

ABA members who wish to be considered for appointment to a committee should complete the online form indicating the committees for which they wish to be considered. Members should nominate for no more than two committees.

Existing members of committees who wish to continue on a particular committee should also complete the online form

Expressions of interest will close at 5pm on Monday, 11 March 2019.

Australian Bar Association welcomes shadow Attorney-General’s commitment to legal assistance sector.

02 February 2019

The Australian Bar Association (ABA) welcomes the announcement by the Commonwealth Shadow Attorney-General of his “commitment to increasing the commonwealth’s contribution to legal assistance”.

The announcement acknowledges the crucially important work of legal aid, community legal centres and indigenous legal services and includes a commitment to increase funding and support for the legal assistance sector.

“Legal aid, community legal centres and indigenous legal services provide free legal and related help to vulnerable people when they need it most. They are part of the lifeblood of communities across Australia and of our justice system” said Jennifer Batrouney QC, President of the Australian Bar Association.

The ABA has long called for funding and support for the legal assistance sector and acknowledges the Shadow Attorney-General for his leadership in promising that Labor will invest in these vital organisations of the legal profession.

The President said “Whilst there is more work to be done with Governments towards a fairer society where anyone who needs legal assistance can receive it, not just those that that can afford it, we commend the Shadow Attorney-General’s announcement today and encourage all Governments and Opposition representatives to commit to fund the sector in line with the Productivity Commission review”.

The ABA looks forward to continuing to work with all members of Parliament to secure long-term funding for the legal assistance sector and to ensure that people across Australia have access to the legal help they need.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

Inquiry by Roger Gyles QC on International arbitration

13 December 2018

The President of the Australian Bar Association, Jennifer Batrouney QC, today announced that the Hon Roger Gyles AO QC had been asked to report on international arbitration opportunities for Australian Barristers in both Australia and the Asia-Pacific Region.

Mr Gyles is a former President of the ABA, a former Judge of the Federal Court of Australia, a former Royal Commissioner and a former Independent National Security Legislation Monitor.

“Many Australian barristers have worked successfully in Asia and the Pacific. It is timely that the ABA should build on the work of individual barristers, chambers and State Bar Associations to promote awareness of the Australian Bar as a whole overseas”, Ms Batrouney said.

“As well as being a former President of the ABA, Mr Gyles has a preeminent reputation not only in Australia for his legal career. He has appeared in the Courts in Singapore, Papua-New Guinea, Fiji, and the Solomon Islands as an Australian barrister, and his international experience makes him ideally suited for this role” Ms Batrouney added.

This initiative builds on the recent Austrade Report on Australia’s Capability in International Commercial Arbitration and is consistent with the Government’s push for the expansion of the export of Australian services into the Asia and Pacific regions.

At the recent national conference of the Australian Bar Association calls were made by Federal Court Chief Justice James Allsop AO and leading Australian silk, Allan Myers AC QC for the ABA to lead a national approach in the area of international practice and arbitration in particular.

My Gyles indicated that he saw significant potential for Australian Barristers to have a greater engagement with international dispute resolution, both in Australia and the region.

“With the proposed level of infrastructure funding recently announced by the Australian government in our region, it is imperative that Australian barristers are able to participate in a rules based resolution of disputes arising out of projects so funded,” Mr Gyles said.

“I am looking forward to receiving submissions from all interested parties, including barristers, solicitors, business clients and the government to ensure that the Australian Bar is best placed to contribute its services to ensure the just, timely and cost-effective resolution of disputes that will inevitably arise”, he added.

Submissions are due by 15 March 2019 with the Inquiry due to report on 1 May 2019. 

Further information regarding the Inquiry can be found at austbar.asn.au/news-media/opportunities-for-australian-barristers-to-practice-in-international-disputes

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

Opportunities for Australian barristers to practice in international disputes

13 December 2018

The Australian Bar Association has asked the Hon Roger Gyles AO QC to inquire into and report on actions that the Australian Bar Association can take to enhance opportunities for Australian Barristers to practice in International Disputes, with a focus on Arbitration in the Asia - Pacific region.

There are two aspects to be considered by Mr Gyles in his inquiry and report:

  1. How to retain international work in, and bring such work to, Australia;
  2. How to facilitate the briefing of Australian barristers in work overseas, particularly in the region.

The announcement by the ABA can be found here.  The due date for the Report is 1 May 2019.

Mr Gyles has called for submissions to assist the Inquiry. He is interested in the experience of arbitrators, barristers, solicitors and clients concerning the participation of barristers in international arbitration work in Australia and overseas, particularly in the Asia – Pacific Region.

Mr Gyles is particularly interested in suggestions as to the steps that the ABA can take to enhance the participation of barristers in those arbitrations, including attracting more arbitrations to Australia. A non-exhaustive list of topics on which submissions are sought can be found here.

You can provide information, including on a confidential basis, to Mr Gyles by lodging a submission by email to contact@austbar.asn.au

Closing date for submissions is 15 March 2019.

Please indicate your availability to have a further discussion with Mr Gyles or a member of the ABA International Committee about your submission.

If you would like further information, please contact the following members of the ABA International Committee who are supporting the work of Mr Gyles:

Tim D. Castle (Chair) - tdcastle@stjames.net.au

Michael Whitten QC - whitten@chancery.com.au

Alistair Wyvill SC - awyvill@williamforster.com

Hamish Clift -  clift@qldbar.asn.au

Additionally, Mr Gyles will be receiving assistance from the Hon Wayne Martin AC QC, who can be contacted at wmartin@francisburt.com.au.

AUSTRALIAN BAR ASSOCIATION WELCOMES NEW SILKS 2018

10 December 2018

The Australian Bar Association (ABA) congratulates Australia’s new Senior Counsel and Queen’s Counsel of 2018.

President of the Australian Bar Association, Jennifer Batrouney QC said “the new silks were to be congratulated on their appointment, which acknowledges their outstanding service to the administration of justice through their skill, diligence, integrity, independence and standing in the profession.”

The ABA will celebrate the appointment of new Senior Counsel and Queen’s Counsel at its annual Silks and Bows dinner at the High Court of Australia on 4 February 2019.

The keynote speaker for the evening will be the Honourable Justice James Edelman of the High Court of Australia. Paresh Khandhar SC from the New South Wales Bar will speak on behalf of the new Silks.

Members of the judiciary and friends of counsel who wish to attend the dinner will find more information https://nswbar.eventsair.com/2019-silks-dinner/2019silksdinner.

Senior Counsel and Queen’s Counsel 2018

New South Wales: Neil Adams SC, Lee Carr SC, Paresh Khandhar SC, Shane Prince SC, Farid Assaf SC, Edward Cox SC, Mark Dennis SC, Dominic Villa SC, Mark Gibian SC, Neil Murray SC, Suzanne Christie SC, Ertunc (Tunc) Ozen SC, Simon Buchen SC, Anna Mitchelmore SC, Vanessa Whittaker SC, Michael Izzo SC, Stephen Free SC, Kristen Deards SC, David Thomas SC

Northern Territory: David Morters SC and Nikolai Christrup SC

Queensland: Scott McLeod QC, Damien Atkinson QC, Mark Ambrose QC, Nicholas Ferrett QC, Patrick Cullinane QC, Nicholas Andreatidis QC, Sydney Williams QC, Patrick McCafferty QC, Lincoln Crowley QC

South Australian: Michael Burnett SC, Alan Lindsay SC, Domenico Petraccaro SC, Rachael Gray SC, Heath Barklay SC

Tasmanian: Sandra Taglieri SC and Linda Mason SC

Victorian: Raymond Gibson SC, Andrew Ingram SC, William Lye OAM SC, Francis (Frank) O’Loughlin SC, Peter Rozen SC, Andrew Palmer SC, David McAndrew SC, Colin Mandy SC, Richard Dalton SC, Elizabeth Brimer SC, Patrick (Justin) Hannebery SC, Tomo Boston SC, Jennifer Firkin SC, Diana Piekusis SC, Christopher Archibald SC, Dr Andrew Hanak SC, Fiona Forsyth SC, Anthony Strahan SC, Cam Truong SC, Dr Catherine Button SC, Frances Dalziel SC, Dr Michael Rush SC, Juliet Forsyth SC, Scott Smith SC, Eugene Wheelahan SC

Western Australia: John Ley SC, John Hedges SC, Steven Penglis SC, Carolyn Thatcher SC, Gary Cobby SC, Alain Musikanth SC, Michael Feutrill SC, Mara Barone SC

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

New sittings times for Full Court sittings in the High Court of Australia.

03 December 2018

Having recently trial led an earlier starting time of 10:00am for Full Court sittings the Justices of the High Court have adopted the earlier starting time as a permanent practice.

Other than on the last day of the sitting week, for all Full Court sittings the Court will sit from 10:00am and will adjourn at 11:15am, reconvening at 11:30am.

For the last sitting day of each week (Friday in week one and Thursday in week two) the sittings will commence at 9:45am, with a break at 11:00am, reconvening at 11:15am.

View the PDF here

FCC and Family Court reforms: Submission to Senate Legal and Constitutional Affairs Committee

23 November 2018

View the PDF here

ABA CALLS FOR IMMEDIATE TRANSFER OF ASYLUM SEEKERS FROM NAURU

20 November 2018

Following the Australian Bar Association (ABA) and NSW Bar Associations’ successful national legal conference in Sydney, the Council of the ABA adopted 8 key principles in the area of asylum seekers and refugees. The principles reflect the centrality of governments acting according to the rule of law and the Australian government abiding by its international law obligations in this important and significant area.

President Jennifer Batrouney QC said “that the adverse health outcomes and the wellbeing of children and their families on Nauru had deeply troubled many of the ABA’s members”.

"That there are asylum seekers who have been detained on Nauru for years is an example of Australia not acting in compliance with its legal obligations under both the Refugee Convention and international human rights standards” said Ms Batrouney.

The ABA echoes the Australian Medical Association (AMA) concern that the health of children is paramount and that any remaining children and their families should be brought immediately to Australia.

One of the key principles adopted by the ABA includes avoiding future adverse health consequences for asylum seekers and refugees and for Australia to comply with its international obligations:

  1. That due to continuing human rights concerns about the conditions of detention in off-shore places used for the processing and detention of asylum seekers and refugees (such as Nauru and Manus Island, Papua New Guinea), all asylum seekers and refugees who have arrived in Australia will be processed in Australia.

The ABA urges the Government to act both in accordance with the rule of law and its international law obligations and act urgently and immediately to ensure the humane treatment of asylum seekers.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

ABA WELCOMES NEW PRESIDENT, MS JENNIFER BATROUNEY QC

19 November 2018

The Australian Bar Association is pleased to announce the election of Ms Jennifer Batrouney QC as President for the 2018-19 year.

The ABA represents Australia’s 6000 barristers and Ms Batrouney is only the 4th female President of the ABA since its establishment in 1963.

Ms Batrouney is a leading revenue and charity law silk. She is Immediate Past President of the Victorian Bar and of the Tax Bar Association. She is also a former President of Australian Women Lawyers.

Ms Batrouney said “During my term as President, I will continue to promote the high-quality specialist advocacy and advisory services provided by Australia’s barristers both here and overseas. I will ensure that the ABA draws upon the experience of its members to advance public debate on law reform and legal policy issues, uphold the rule of law and protect the independence of the legal profession and the judiciary. In particular, I will encourage the highest standards of ethics and diversity across the profession. I congratulate and look forward to working with the new Executive and Council of the ABA.”

Ms Batrouney also paid tribute to the work of the outgoing President, Noel Hutley SC, in particular, “for his work in strengthening the ABA committee structure, in scrutinising the proposed family law reforms and for his advocacy in supporting the independence of the judiciary”.

Ms Batrouney has over 25 years experience as a barrister. She is Chair of the ABA’s Tax Committee and Chair of the Law Council of Australia’s Charity Law committee. She teaches Tax and Charity Law in the Melbourne Law School Master’s program and is a member of the Melbourne Law School Advisory Council and Tax Masters Advisory panel. She is a member of the Victorian Bar Indigenous Justice Committee and is the elected member of the Victorian Legal Services Board. She was the Law Institute Mentor of the Year in 2014.

Ms Batrouney is married to Steve and they have two adult sons, James and Mark.

At the AGM the following office bearers were also appointed for 2018/19:

 

Matthew Howard SC Vice-President
Gavin (Sandy) Thompson QC Vice-President
Kenneth Archer Treasurer
Michael McHugh SC Honorary Secretary
Ian Robertson SC Chair, Advocacy Training Council

MEDIA ENQUIRIES: Cindy Penrose, CEO ceo@austbar.asn.au (m) 0420 309 420

View the PDF here

The ABA rejects the recent analysis of Federal Court judges’ productivity

30 October 2018

The Australian Bar Association (ABA) is concerned by recent attacks on Federal Court of Australia judges’ productivity which portrays the process of justice in too simplistic terms. 

The ABA has the highest respect for the independence, integrity and impartiality of the judiciary across Australia and rejects the Australian Financial Review (AFR) methodology. 

The AFR methodology is flawed as, inter alia, it fails to take into account the varied character, complexity and nature of individual cases. In addition, the analysis is unsophisticated as it does not incorporate other significant elements to any assessment of an effective system of justice. 

It is unclear how these statistics are compiled and if they are simply a result of comparing the last date on which the case was listed for hearing and the judgment date. That can be particularly misleading in large cases, where it is not uncommon for extensive written submissions to occur between the bench and the bar after the hearing, which are necessary for the purpose of delivering judgment. 

Whilst “speed of justice” is important and not denied by either the courts or the ABA it is merely one element to be considered. 

The ABA endorses the comments of former Chief Justice of New South Wales, James Spigelman AC QC “the most important aspects of the work of the courts are qualitative and cannot be measured, such as fairness, accessibility, openness, impartiality, legitimacy, participation, honesty and rationality”. 

ABA President Noel Hutley SC said: “It is the quality of a judgment that delivers justice to the parties and provides public confidence in a Court. The jurisdiction of the Federal Court brings before its judges very complex matters in which time is often necessary to provide that quality of judgment”.

 

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

ABA 2018 AGM

03 October 2018

The ABA AGM will be on 18 November at 930am at the NSW Bar Association, Selborne Chambers, 174 Phillip Street, Sydney.

Further details to come.

THE APPOINTMENT OF CHIEF JUSTICE AND DEPUTY CHIEF JUSTICE OF THE FAMILY COURT OF AUSTRALIA

28 September 2018

The Australian Bar Association (ABA) notes the Government's announcement regarding the appointments of the new Chief Justice and Deputy Chief Justice of the Family Court of Australia.

The new Chief Justice of the Family Court of Australia and the Chief Judge of the Federal Circuit Court is to be the Honourable William Alstergren, who is the current Deputy Chief Judge of the Federal Circuit Court.

Deputy Chief Justice Alstergren has served for many years on the Council of the ABA and has been its immediate past-President in 2017.

The new Deputy Chief Justice of the Family Court of Australia is to be the Honourable Justice Robert McClelland.

The ABA pays tribute to the retiring Chief Justice, the Honourable John Pascoe AC CVO for his service to the law and to the judiciary.

ABA President Noel Hutley SC said: “The ABA looks forward to working with the new Chief Justice and Deputy Chief Justice to ensure the family court reform enables early and costeffective resolution of family law disputes”.

View the PDF here

Draft rule change of Legal Profession Uniform Conduct (Barristers) Rules 2015

13 September 2018

The Legal Services Council agreed with the ABA’s proposal to further amend r 101(n) of Legal Profession Uniform Conduct (Barristers) Rules 2015 to ensure that the preclusion rule does not operate retrospectively. The Council has also authorised to approve the ABA to conduct public consultation on draft rule 101A of the Barristers Conduct Rules under s427(5)(b) of the Uniform Law.

The draft rule for public consultation is below and written submissions are invited and should be addressed to ceo@austbar.asn.au.

View the PDF here

CORRECTION AND EFFECTIVE CONSULTATION REQUIRED BY ATTORNEY-GENERAL

10 September 2018

The President of the Australian Bar Association (ABA), Mr Noel Hutley SC calls upon the Federal Attorney-General Christian Porter MP to correct the statement provided to The Australian newspaper today which states "two key stakeholders, the Law Council of Australia and Australian Bar Association, had been provided with early drafts of the legislation in mid-July to allow them time to consider it".

Mr Hutley says "The ABA wishes to correct the record. The ABA was provided with just over two clear days to consider the draft Federal Circuit and Family Court of Australia Bill 2018 comprising in excess of 600 pages. That consultation was confidential and limited to myself, the Chair of the ABA’s Family Law Committee, Dr Jacoba Brasch QC and the Chief Executive Officer of the ABA, Ms Cindy Penrose".

Mr Hutley says "the Attorney-General was informed, that the ABA could not present a consensus position due to the restrictive terms of the consultation, preventing it consulting with the ABA Council or its expert Family Law Committee".

Within those limitations, the ABA further informed the Attorney-General that whilst the ABA provided comment regarding the family law aspects proposed in the Bill and the Schedules, that the ABA could not be sure with certainty that all issues were addressed and reserved its position in respect of the version of the Bill when made public.

As Mr Hutley has previously said "the structure and implementation of any reform of the area can only be determined if all interested parties have access to and appropriate time to consider, the most up-to-date information available...". http://austbar.asn.au/news-media/australian-bar-association-calls-for-careful-parliamentary-scrutiny-of-the-family-courts-future

The ABA requests a correction by the Attorney-General be issued to accurately illustrate the consultation limitations imposed upon the ABA in consideration of such important legislation.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

ALRC Inquiry into Class Action Proceedings and Third-Party Litigation Funders

24 August 2018

View the PDF here

AUSTRALIAN BAR ASSOCIATION CALLS FOR CAREFUL PARLIAMENTARY SCRUTINY OF THE FAMILY COURT’S FUTURE

12 August 2018

The Australian Bar Association President, Noel Hutley SC says “the ABA remains of the view that any legislation to restructure Australia’s family law system requires close and careful examination by Parliament”.

“The structure and implementation of any reform of the area can only be determined if all interested parties have access to and appropriate time to consider, the most up-to-date information available and particularly the PwC report which the Commonwealth AttorneyGeneral has referred to be as being the basis of the current proposals,” the ABA’s President, Noel Hutley SC, said today.

To date, this material has not been released and there has been no public consultation about any proposed measures. The ABA considers that measures of this importance should be the subject of careful consideration by Parliament with the benefit of public input from the broader Australian community including the legal profession and representative bodies.

The Family Court of Australia and its specialist judges perform important work in difficult and complex family law cases but the court has been under-resourced for many years. The ABA remains of the view that the court should not be dismantled after 40 years of operation without careful consideration of the value that maintaining a properly resourced specialist family court would bring.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

Spam Emails

19 July 2018

A spam email purporting to be from the Australian Bar Association is currently circulating among email accounts.

The subject line for the spam email is Re: ABA Letter

The email asks the sender to login via a link.

The email is a phishing email which attempts to get the recipient to download some kind of software that will compromise the recipient’s computer.

If you receive this email please delete it immediately and do not open any attachments. Do not click the links. 

For more information on the Australian Bar Association spam email please contact contact@austbar.asn.au

For more information on the internet and other types of scams, please see ASIC’s Scam Watch website at https://www.scamwatch.gov.au/

 

Cindy Penrose
Chief Executive Officer
Australian Bar Association
M: + 61 420 309 420

Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry of the Family Violence and Cross-examination of Parties Bill

01 July 2018

View the PDF here

INSLM: Review of the prosecution and sentencing of children for Commonwealth terrorist offences

19 June 2018

View the PDF here

ABA supports the inclusion of a First Nations “Voice” in the Constitution

19 June 2018

In a unified voice representing Independent Bars from across Australia, the ABA has made a submission to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples supporting the Uluru Statement call for a “Voice” in the Constitution.

The Joint Select Committee is scheduled to provide an interim report to Parliament by 30 July 2018 with a final report by 29 November 2018. This is a historic opportunity to remedy the omission of First Nations peoples from the Constitution, their exclusion from the creation of the Australian state and the passage of its founding document.

The Uluru Statement is an agreed position accepted by First Nations delegates to the 2017 National Constitutional Convention which makes it a viable starting point for any constitutional amendment. It proposes the establishment of a body to provide a ‘Voice’ enshrined in the Constitution together with a Makarrata Commission to supervise the making of agreements (or treaties) between First Nations peoples and governments.

The ABA supports the principle of a First Nations Voice to be included in the Constitution forthe following reasons:

  1. it has been adopted by the representatives of First Nations at Uluru;
  2. the Voice is proposed to operate within the current constitutional structure and not against it;
  3. there will be continuing dialogue to develop any proposed constitutional amendment to recognise the role and position of the First Nations peoples; and
  4. following any appropriate amendment of the Constitution the Voice might be

implemented in a number of ways outside the Constitution so as to provide both institutional flexibility and longevity for First Nations peoples and the Commonwealth of Australia. In principle the ABA supports the idea of an independent permanent advisory body to be enshrined in the Constitution. Any constitutional amendment should, preferably, be flexible as to the design of the Voice.

Lawyers have made contributions to past reforms and again have a role to play in considering the details and mechanisms which may give effect to the Uluru proposals. The ABA is available to support this very important work.

For media enquiries and interview requests:

Cindy Penrose, Chief Executive Officer

E: ceo@austbar.asn.au M: 0420 309 420

View the PDF here

Submission to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples

14 June 2018

View the PDF here

Launch of a joint effort to develop Australia as a leader in International Arbitration

11 June 2018

The Australian Bar Association (ABA) and the Chartered Institute of Arbitrators (Australia) are delighted to announce the launch of a memorandum of understanding aimed at advancing arbitration and mediation work opportunities for Australian counsel internationally as well as developing a more unified local dispute resolution profession.

The MoU encourages the joint promotion and advancement of international arbitration, mediation and alternative dispute resolution methods by Australian counsel to the global market. Their ability to provide early advice, first class advocacy and negotiation skills and their expert knowledge of the Australian and regional legal systems place them in a unique position of being able to conduct all forms of domestic and international arbitrations as well as other dispute resolution methods.

The MoU was launched by the Hon. James Allsop AO, Chief Justice of the Federal Court of Australia at the Federal Court in Melbourne, who expressed that the agreement is a significant step in a strategic alliance to promote the dispute resolution services of these organisations to the global market.

President of the ABA, Mr Noel Hutley SC said “The ABA is committed to identifying and promoting opportunities for the involvement of Australian counsel in international jurisdictions. That process is not limited to Australian counsel working abroad, whether it be as counsel, arbitrators or mediators, but extends to promoting internationally, the undoubted skills and competence of Australian counsel and the Australian judiciary.”

Noting the ABA is delighted to partner with the CIArb Australia, Mr Hutley said “The CIArb rightly prides itself on being a truly global network, with over 16,000 members working in sectors as diverse as finance, construction, oil and gas and agriculture in over 130 countries worldwide.”

“In addition to providing education, training and accreditation for arbitrators, mediators and adjudicators, the CIArb acts as an international centre for practitioners, policymakers, academics and business executives.”

“Under the Memorandum of Understanding, the ABA looks forward to working with CIArb Australia to advance arbitration work opportunities for Australian barristers.”

Caroline Kenny QC, President of CIArb Australia said “CIArb is very pleased to partner with the Australian Bar Association, the peak body of Australian barristers. In signing this agreement we both recognise the importance of developing opportunities for our members in the ADR space, especially in the growing arbitration hubs of Asia.”

“CIArb brings to the partnership over 100 years experience in providing the gold standard in training a global accreditation of international arbitrators and a worldwide membership.”

For further details, contact:

Cindy Penrose, Chief Executive Officer
Australian Bar Association
E: ceo@austbar.asn.au
M: 0420 309 420
Gianna Totaro, Chief Executive Officer
CIArb Australia
E: info@ciarb.net.au
M: 0438 337 328

View the PDF here

Consistent and efficient Family Law structures good for families

30 May 2018

Australian Bar Association President, Noel Hutley SC, notes the Government's announcement

to amalgamate the Federal Circuit Court and Family Court of Australia.

"Whilst we await the detail, the reforms announced by the Government today have the

potential to make family law more consistent and efficient, which can only be of benefit for

families in need, Mr Hutley said.

“We have long recognised the potential benefits of a single point of entry in family

law, and a harmonisation of rules. It is untenable that a family could be moved

between two courts, where there are different rules and different processes, despite

the family's dispute remaining the same," said Mr Hutley.

“Equally, a common case management process – so long as that can be tailored to the

individual needs of a specific family - should lead to matters being reached more quickly”

said Mr Hutley.

"I look forward to the Attorney-General consulting with the ABA, on the details of the

reforms."

MEDIA ENQUIRIES: Cindy Penrose, ceo@austbar.asn.au; 0420 309 420

View the PDF here

ALRC Review of the Family Law System Issues Paper

07 May 2018

View the PDF here

TIME TO CONCENTRATE ON REFORM

28 March 2018

The Australian Bar Association (ABA) welcomes the Australian Law Reform Commission (ALRC) review into the family law system. The family law system is undergoing its first, independent comprehensive review since the inception of the Family Law Act 1975. The ABA recognises the importance of family law in the lives of many Australians and supports consideration of law reform of the family law system to ensure it meets the needs of modern Australian families. The ABA looks forward to responding to the issues paper and welcomes reform which would enable early and cost-effective resolution of family law disputes.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

SUBSTANTIVE REFORMS NEEDED TO ACHIEVE EQUAL JUSTICE FOR ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES

28 March 2018

The Australian Bar Association (ABA) welcomes the Australian Law Reform Commission (ALRC) report, Pathway to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples.

The Report is a comprehensive review of the nation’s Justice Systems and their impact on the incarceration rates of Aboriginal and Torres Strait Islander Peoples. It deals with the ingrained over-representation of Indigenous people in prison which has become a national disgrace.

The ABA agrees that substantive reforms are needed to achieve equal justice. The Report provides a series of recommendations that the ABA has advocated for some time, including that:

  • mandatory and presumptive sentencing provisions which disproportionately affect Aboriginal and Torres Strait Islander peoples should be repealed
  • fine default imprisonment should be abolished. The imprisonment of persons in default of payment of fines is an unjust and a disproportionate punishment which unduly effects Aboriginal and Torres Strait Islander peoples
  • an independent justice reinvestment body should be established to address the underlying causes of crime and to provide expertise and assistance to local Indigenous groups to implement place-based justice reinvestment plans
  • sentencing and bail legislation should be reviewed to curb high incidences of trivial justice procedure offences often associated with social disadvantage
  • all sentencing courts should be required to take into account the unique systemic and background factors that affect Aboriginal and Torres Strait Islander individuals and communities

The ABA accepts that some of the ALRC’s recommendations require funding to effectively implement. This money will be well spent, so long as this expenditure is properly evidencebased and assessed against targets.

The recommendations of the Report provide Australian governments with a significant opportunity to make informed and practical changes, delivering better justice outcomes for Aboriginal and Torres Strait Islander peoples and the country as a whole. The ABA urges Australian governments to act swiftly on the recommendations of the Report.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

Political attacks on the judiciary undermines the independence, integrity and impartiality of Australia’s legal system.

13 January 2018

The Australian Bar Association (ABA) has the highest respect for the independence, integrity and impartiality of the judiciary across Australia and is very concerned by recent political attacks on the Victorian judiciary.

The ABA President, Mr Noel Hutley SC said “Attacks on judicial officers undermine democracy and the rule of law and erode public confidence in the courts.”
“The reputation of the judiciary of Victoria for integrity and independence is both entirely justified and vital to the maintenance of the rule of law.”
“Whilst this abuse is not a threat to that integrity or independence due to the quality of the judges, it is improper that a Federal Minister would engage in it.”

Australia’s democracy relies upon mutual respect between the governing and judging branches of the government. Courts should be free from unfounded political criticism.

MEDIA ENQUIRIES: Cindy Penrose 0420 309 420 or ceo@austbar.asn.au

View the PDF here

AUSTRALIAN BAR ASSOCIATION WELCOMES NEW FEDERAL ATTORNEY-GENERAL CHRISTIAN PORTER

19 December 2017

AUSTRALIAN BAR ASSOCIATION WELCOMES NEW FEDERAL ATTORNEY-GENERAL CHRISTIAN PORTER

The Australian Bar Association (ABA) welcomes the announcement today of the appointment of Christian Porter MP as the 37th Attorney-General for Australia.

The ABA pays tribute to the retiring Attorney-General, The Hon George Brandis QC, for his service to the law and to the Australian Bars, particularly in relation to:

  • marriage equality,
  • strengthening national security legislation,
  • ratifying OPCAT - the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • establishing the Royal Commission into the Protection and Detention of Children in the Northern Territory, and
  • defending the rule of law, the separation of powers and the independence of the legal profession.

ABA President Noel Hutley SC said: “The Attorney-General has displayed a lengthy commitment to public service and the positions he has taken on many issues, most recently marriage equality, and the current review of the family law system, have been greatly appreciated by the Australian Bar.”

“The ABA looks forward to working with Mr Porter on the many important issues within the Attorney-General's portfolio, including consideration of the implementation of recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commission into the Protection and Detention of Children in the Northern Territory and the current review of the family law system.”

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

AUSTRALIAN BAR ASSOCIATION WELCOMES NEW SILKS

18 December 2017

The Australian Bar Association (ABA) congratulates Australia’s new Senior Counsel and Queen’s Counsel of 2017.

President of the Australian Bar Association Noel Hutley SC said the new Senior Counsel and Queen’s Counsel were to be congratulated on their appointment as Silks, which represented a singular milestone in any barrister’s career.

The ABA will celebrate the appointment of new Senior Counsel and Queen’s Counsel at its annual Silks and Bows dinner at the High Court of Australia on 5 February 2018.

The keynote speaker for the evening will be the Honourable Justice Michelle Gordon of the High Court of Australia. Lisa Nichols SC from the Victorian Bar will speak on behalf of the new Silks.

Members of the judiciary and friends of counsel who wish to attend the dinner will find more information here.

Senior Counsel and Queen’s Counsel 2017

New South Wales Senior Counsel: Gregory Richard Waugh, Lesley Anne Whalan, Michael Luscombe Wright, Melissa Anne Gilles, Michael Robert Elliott, Naomi Louise Sharp, Richard Craig Scruby, Francis Paul Hicks, Katharine Clare Morgan, Huw Baker and Ruth Clare Anne Higgins.

Northern Territory Senior Counsel : Miles Crawley.

Queensland Queen’s Counsel: Justin Andrew Greggery, Melanie Heather Hindman, Michael Robert Hodge, Benjamin Job, John William Peden, Darlene Ann Skennar and Michael Anthony Williamson.

Victoria Senior Counsel: William Guy Gilbert, Mark John Gibson, Marcus Clarke, Paul Lawrence Ehrlich, Michael Wolf Wise, Paul James Hayes, Craig William Dowling, Scott William Stuckey, Michael Geoffrey Rees Gronow, Garry John Fitzgerald, Julian Paul McMahon AC, Scott Robert Johns, Suresh Rajkumar Senathirajah, Minal Vohra, David Joseph Nicolas Purcell, Mark Anthony Irving, Stephen Howard Parmenter, Claire Michelle Harris, Robert Andrew Heath, Lisa Michelle Nichols, Sally Amanda Flynn, Stewart John Maiden and Lisabella Gianna De Ferrari.

Western Australia Senior Counsel: Stephen Wright, Amanda Burrows and Simon Freitag.

 

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

AUSTRALIAN BAR ASSOCIATION WELCOMES NEW PRESIDENT AND VICE-PRESIDENT

13 October 2017

The Australian Bar Association (ABA) is delighted to announce the appointment of Noel Hutley SC as the new President of the ABA.

Mr Hutley, a barrister at Fifth Floor St James' Hall Chambers in Sydney, has been an integral member of the ABA’s Executive and leadership and will take over from Mr Will Alstergren QC following his appointment as the new Chief Judge of the Federal Circuit Court and a Justice of the Family Court.

“I am honoured to be appointed president of the Australian Bar Association and look forward to working with the Executive and full Council to advance the objectives of the ABA which are: to serve our members; improve our profession; and to advance the Rule of Law.”

“I congratulate Mr Alstergren QC on his appointment to the Bench as the new Chief Judge of the Federal Circuit Court and as a Justice of the Family Court.”

The ABA is also pleased to welcome Jennifer Batrouney QC, current President of the Victorian Bar, to the ABA Executive as a Vice-President.

The ABA Executive is now comprised of President Noel Hutley SC, Vice-President Christopher Hughes QC, Vice-President Jennifer Batrouney QC, Treasurer Matthew Howard SC and Advocacy Training Council Chair Ian Robertson SC. The Executive term is until the ABA’s annual general meeting which will be held in November 2017.

 

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

PROPOSED COUNTER-TERRORISM LAWS OVER-REACH IN RELATION TO CHILDREN

11 October 2017

The Australian Bar Association (ABA) urges the Federal government to reconsider proposed changes to counter-terrorism laws which would allow for children as young as 10 years of age to be detained for up to 14 days without charge.

The Federal government announced the proposed new pre-charge detention regime last week.

ABA President Noel Hutley SC said that whilst Australia needs robust counter-terrorism laws to protect against the threat of terrorism, the proposed changes are unjustified and go too far.

“In the absence of any demonstrated need for longer periods of detention without charge than already exist, the proposed changes are unjustified and represent an over-reach by government.”

Mr Hutley said it was vital the government heed the words of Federal Attorney-General George Brandis QC, who, in a recent speech (9 October 2017), cautioned governments not to make the mistake of diminishing fundamental freedoms whilst attempting to protect people from threats such as terrorism.

In his speech Mr Brandis said: “In protecting our people from terrorism, for instance, we must be careful to ensure that our legislative and policing response is at all times consistent with our values and obedient to the rule of law, even if, on occasions, that may constrain what our law enforcement authorities can do. That is the price we pay for being democracies.”

Mr Hutley said: “The ABA firmly believes in the rule of law and urges the Government to maintain an appropriate balance between the undeniable need to keep the community safe with the protection of fundamental legal rights.”

Mr Hutley said if the government proposes to proceed with further changes it should provide greater detail as to them, including the level of judicial oversight and consult with the legal profession.

 

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

ABA WELCOMES APPOINTMENT OF NEW CHIEF JUSTICE OF THE FAMILY COURT AND NEW CHIEF JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA

10 October 2017

The Australian Bar Association (ABA) welcomes the announcement today (10 October 2017) of the appointment of the new Chief Justice of the Family Court and the new Chief Judge of the Federal Circuit Court and a Justice of the Family Court.


The new Chief Justice of the Family Court is to be the Honourable John Pascoe AC CVO, who is the current Chief Judge of the Federal Circuit Court.


The new Chief Judge of the Federal Circuit Court and a Justice of the Family Court is to be Mr Will Alstergren QC.


The ABA is particularly delighted with the appointment of Mr Alstergren QC, who has served for many years on the Council of the ABA and has been its President during this year.


Mr Alstergren will bring a wealth of experience and formidable leadership skills to a major national court the jurisdiction of which extends to numerous fields of vital interest to all Australians, particularly family and immigration law.


The ABA takes the opportunity to express its sincere gratitude to Mr Alstergen QC for his outstanding leadership and service to the law and to the Australian Bar.


MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au
 

Spam Email Alert

11 September 2017

A spam email purporting to be from the Australian Bar Association is currently circulating among email accounts.

The email requests immediate payment for an outstanding invoice.

The subject line for the spam email is “Membership Invoice From Australian Bar Association”.

If you receive this email please delete it immediately and do not open any attachments.

For more information on the Australian Bar Association spam email please contact Public Affairs and Communications Manager Mick Paskos on 0412 201 044 or via mpaskos@onmessage.com.au.

For more information on the internet and other types of scams, please see ASIC’s Scam Watch website at https://www.scamwatch.gov.au/

The ABA Refutes Claims by Immigration Minister Regarding Pro Bono Legal Assistance For Asylum Seekers

01 September 2017

The claims by Immigration Minister Peter Dutton that lawyers who provide pro bono legal assistance to asylum seekers are ‘un-Australian’ are unfortunate and incorrect, according to the Australian Bar Association (ABA).

In an interview on commercial radio on 28 August, Minister Dutton responded to a statement by 2GB radio host Alan Jones that the behaviour of lawyers representing asylum seekers was ‘un-Australian’ and said: “Well, of course it is, and it’s gone on for too long.”

ABA President Will Alstergen QC said that a fundamental tenet of democracy was the equal application of the rule of law to all people.

“There is nothing ‘un-Australian’ in ensuring that all people have equal access to justice in this country via independent legal representation,” Mr Alstergren said.

“Australian barristers have a proud tradition of appearing pro bono for people who cannot afford legal representation and have done so over many years on behalf of the legal profession.”

“These barristers do so voluntarily for the good not only of the community, but the independence of our legal system.”

Mr Alstegren said that without diligent respect for the separation of powers, democracy can and will be eroded and this would be to the detriment of all Australians.

“The Australian Bar Association urges the government and all political parties to respect and support the rule of law and the independence of the legal profession,” Mr Alstergren said.

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

ABA Welcomes Appointment of new Chief Justice of the Supreme Court of Victoria

08 August 2017

The Australian Bar Association (ABA) welcomes the announcement today [8 August 2017] of the appointment of the Honourable Justice Anne Ferguson as the new Chief Justice of the Supreme Court of Victoria.

Justice Ferguson, a Victorian Court of Appeal judge, will take up her appointment in early October 2017, replacing retiring Chief Justice Marilyn Warren.

Australian Bar Association (ABA) President Will Alstergren QC said the appointment had been received with great enthusiasm throughout the legal profession.

“Justice Ferguson is an exceptional choice as the new Chief Justice of the Supreme Court of Victoria,” Mr Alstergren said.

“Justice Ferguson will bring to the role of Chief Justice of the Supreme Court of Victoria outstanding knowledge and experience in the law, particularly in relation to her excellent work as a trial and appellant judge. Her Honour’s appointment is welcomed with great enthusiasm by the Australian Bar Association.”

Mr Alstergren also paid tribute to retiring Chief Justice Marilyn Warren.

“Since her appointment in 2003, Chief Justice Warren has been an exemplary leader of Victoria’s highest Court. On behalf of the legal profession I express our profound respect for Her Honour’s leadership of and work in the Supreme Court,” Mr Alstergren said.

Justice Ferguson was appointed to the Supreme Court in 2010 and to the Court of Appeal in 2014. Prior to her appointment as a judge, Justice Ferguson was a partner at law firm Allens Arthur Robinson, working in insolvency and commercial litigation. As a solicitor, Justice Ferguson worked on some of Australia’s highest profile corporate cases, including the complex litigation that followed the collapses of Opes Prime and the Pyramid Building Society.

Justice Ferguson will be the twelfth Chief Justice of the Supreme Court of Victoria. She is the first solicitor to be appointed Chief Justice and the second woman in the role.

Justice Ferguson was admitted to legal practice in 1984. She holds a Bachelor of Arts and a Bachelor of Laws (Honours) from Monash University, where she won the Supreme Court Prize for the top law student. She also holds a Doctor of Philosophy in Law from the University of Southampton, where she specialised in unfair contracts.

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

Innovative Solutions to Access to Justice Crisis Needed

02 August 2017

The Australian Bar Association (ABA) supports the work of the Law Council of Australia’s (LCA) national Justice Project which today [2 August 2017] moved into a consultation phase.

The Justice Project is a comprehensive national review into the state of access to justice in Australia with a focus on challenges for the most vulnerable members of society. A series of papers focused on 13 groups identified as facing significant social and economic disadvantage have been released.

The 13 groups are Aboriginal and Torres Strait Islander peoples; those with disability; older persons; people experiencing economic disadvantage; homeless persons; children and young people; prisoners and detainees; people who are trafficked or exploited; LGBTI people; recent arrivals to Australia; asylum seekers; people who experience family violence; and people in regional and remote areas of Australia.

ABA President Will Alstergren QC said: “Access to justice generally is at a crisis level. This has recently been identified by Lord Neuberger in the UK who has called on the UK government for more funding and consideration of the need for alternative funding models. The levels of unrepresented litigants coming before our Courts is alarming, as is the vast number of people in our society who are unable to obtain legal advice.”

“The outcomes of the Justice Project are likely to paint the most up-to-date picture of the lack of access to justice for many members of our community.”

Mr Alstergren said the ABA had been a vocal campaigner for support to the legal assistance sector; considered equal access to justice a basic right for all Australians; and was working on innovative solutions to the growing problem.

“Pro Bono work is now not enough nor is it ever going to be able to replace Legal Aid. It is time we recognised the problems as the Justice Project demonstrates and looked for solutions. The ABA is currently discussing with Government and the Courts a new model for data retention, new models for the most efficient ways of providing pro bono services and the feasibility of alternative funding models, for example, funding from the private sector,” Mr Alstergren said.

To learn more about the LCA Justice Project, including how to make a formal submission by 30 September and how to attend discussion sessions to be held Australia-wide, visit https://www.lawcouncil.asn.au/justice-project.

MEDIA ENQUIRIES: Mick Paskos 0412 201 044 or mpaskos@onmessage.com.au

Australian Bar Association President: “Legal assistance funding requires rethink to ensure sustainability”

10 July 2017

The President of the Australian Bar Association, Will Alstergren QC, has highlighted the need for a complete rethink of legal assistance budgets to ensure its sustainability to provide equal and fair access of legal advice and assistance to all.

 

“The ABA holds significant concerns about Australia’s legal assistance budget being able to provide the necessary and adequate access to justice both now and into the future and that without a complete rethink of its funding, the rule of law hangs in jeopardy”, said ABA President Will Alstergren QC.

 

The comments were made following a speech by the UK Supreme Court’s Chief Justice, Lord Neuberger at the Australian Bar Association’s Biennial Conference in London and Dublin. Lord Neuberger discussed the similarities between the Australian and UK legal aid systems and the challenges that have been presented over the past 20 years.

Lord Neuberger said, 'many people [are faced] with the unedifying choice of being driven from the courts or having to represent themselves.'

“Despite the best intentions of both State and Federal Governments in Australia, they have been unable to commit to funding legal assistance to anywhere near the level required. Australia’s experience is not dissimilar to that of other common law jurisdictions including England and Ireland and presents an opportunity for all these nations to work together to identify other alternatives and solutions to this growing problem,” said Will Alstergren QC.

 

The Bar of England and Wales has also been voicing concerns about declining legal assistance funding and too believes the rule of law is at risk if the very people who need access to legal advice and legal protection cannot access it.

 

Will Alstergren QC said, “Lord Neuberger, the most senior member of the judiciary in the UK, has outlined very clearly why we so desperately need security and sustainability in our legal assistance budgets and what the consequences are without it. The Australian Bar Association will continue to advocate for legal assistance funding sustainability and looks forward to working with the UK and Irish Bars to explore alternative funding models and to making pro bono services more efficient.”

 

To view Lord Neuberger’s speech from the 2017 Australian Bar Association conference visit:

http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2017/july/rethink-needed-on-availability-of-legal-aid/

 

To view the media release issued by the Bar Council of England and Wales: http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2017/july/rethink-needed-on-availability-of-legal-aid/

 

Media enquiries: media@austbar.asn.au

Senior members of Australian, UK and Irish Bars and Judiciary converge in London and Dublin for the 2017 Australian Bar Association Conference.

03 July 2017

Australian Barristers, senior members of the UK, Australian and Irish governments and the judiciary will converge in London and Dublin this week to share collective knowledge and prepare for future challenges to global legal systems including issues of national security, Brexit and international treaties.

 

Australian Bar Association President, Will Alstergren QC said, “Now more than ever, our profession relies on support and collaboration to maintain the Bar’s high standards and to protect the rule of law. With the increasingly global reach and implications our modern societies present, it is fitting that our conference should provide a forum to share experiences, challenges and ideas with leading international figures in the field.”

 

“Given the increasingly strong international ties the Australian Bar has with Europe and the UK, President of the Supreme Court of the UK, The Right Hon Lord Neuberger, and Deputy President Baroness Hale are significant voices to hear and to learn from at this year’s conference. Lord Neuberger will deliver the conference welcome address, while Baroness Hale will participate in a much-anticipated in-conversation session.”

 

The theme of the conference ‘Excellence, Innovation and Accessibility’, are subjects that underpin the program and provide an opportunity for delegates to explore and share the many new and great challenges and opportunities for innovation in the legal industry.

 

The conference will explore issues including freedom of speech and privacy laws, international law and the protection of cultural treasures, new efforts in diversity and an inclusive profession, the implications of Brexit, through to the challenges facing equal and fair access to justice for all.

 

Among the keynote speakers at the 2017 Australian Bar Association conference are:

  • Australia’s High Commissioner to the United Kingdom, His Excellency, the Honorable Alexander Downer AC.
  • Commonwealth Attorney-General, Senator the Hon George Brandis QC.
  • The Right Hon Jeremy Wright QC MP, Attorney-General for England and Wales and Advocate General for Northern Ireland
  • The Hon Justice Patrick Keane, High Court of Australia.
  • Australia’s Ambassador to Ireland, His Excellency Ambassador Richard Andrews
  • The Hon Justice Stephen Gageler AC, of the High Court of Australia.
  • The Hon Mrs Chief Justice Susan Denham, the Chief Justice of Ireland

 

“Over the next week, we will hear from some of the greatest minds from the global legal profession as they share their insights, experiences and thought-provoking ideas on how to can tackle current legal challenges and modernise our justice systems to ensure efficient, equal and fair access to all,” said Will Alstergren QC

 

The ABA 2017 Conference runs from Monday 3 – Friday 7 July and further information program details are available at www.abaconference2017.com.au

Notes to Editors

  • Further information available from ABA Media Manager media@austbar.asn.au
  • The Australian Bar Association represents approx. 6000 barristers throughout Australia and is committed to serving, promoting, and representing its members, as well as advocating for fair and equal justice for all. 

Statement from the President of the Australian Bar Association, Will Alstergren QC.

13 June 2017

“The ABA has the highest respect for the independence and integrity of the judiciary across Australia.

Today’s report in The Australian and the ABC about comments made by judges during an appeal are unfortunate, particularly as  the judgement is reserved.

It is inappropriate for any comments to be made or reported on at this time.”

ABA welcomes Federal Government funding injection into legal assistance sector

24 April 2017

The Australian Bar Association has today welcomed the Federal Government’s announcement to commit an additional $55.7 million over the next three years to the community legal assistance sector in the upcoming 2017-18 Budget.

Australian Bar Association President, Will Alstergren QC said, “Today’s announcement is a significant step to addressing the shortfalls of the current legal assistance budget and shows a firm commitment from the Federal Government to provide crucial and equal access to legal services for all Australians.”

“The Australian Bar Association has been a vocal campaigner for increased funding and support to the legal assistance sector, particularly for community legal centres. The Government’s re-consideration of this issue, and significant injection of funds is particularly positive news,” said Will Alstergren QC.

“The legal profession, particularly the Independent Bars and the community legal centres, have provided an extraordinary amount of pro bono work, which has become unsustainable for many. Today’s announcement will be warmly welcomed by the profession and is an excellent first step to ensuring everyday Australians have proper access to justice.”

“The increased funding to the Indigenous legal services sector is a particularly substantial commitment and one that the ABA welcomes enthusiastically. The number of Indigenous people coming before the justice system in Australia is a national disgrace and one that can only be addressed through a multi-faceted approach, that includes increased and intensive legal assistance funding.”

In welcoming today’s announcement, the Australian Bar Association is calling upon all sections of government to work together to ensure that equal access to affordable and quality legal assistance remains a priority. The ABA considers that equal access to justice through the legal assistance sector is a basic and crucial issue for all Australians.

Statement from ABA President Will Alstergren QC: Response to article in The Australian newspaper on 24 March 2017, ‘Affirmative action creates obstructions on the level playing field’.

24 March 2017

“The views expressed by Mr Jeffrey Phillips SC in The Australian newspaper on 24 March 2017, do not reflect the view of the Australian Bar Association.

 

In 2016 when the ABA adopted the Law Council's Equitable Briefing Policy we affirmed that the Policy would enhance excellence, diversity and inclusion at the Bar.

 

There is no evidence that the Policy 'takes work away' from male barristers. To the contrary, we believe the Policy will result in a larger pool of work for barristers, drawing in the expertise, skills and diversity of the Australian Bar.”

 

ABA Media Statement - Australian Bar Association adopts LCA Equitable Briefing Policy and considers practical measures to implementation. October 2016: http://austbar.asn.au/news-media/australian-bar-association-adopts-lca-equitable-briefing-policy-and-conside

 

ABA’s Advocacy Training Council Indigenous Scholarship Winner

24 March 2017

The Australian Bar Association has announced Lincoln Crowley, a barrister from the Queensland Bar, as the 2017 recipient of the Advocacy Training Council’s Indigenous scholarship program.

Lincoln Crowley is one of 16 Indigenous barristers practising in Australia and has been described as one the country’s most outstanding young advocates with an extremely bright future.

“Lincoln Crowley is an excellent example of a talented young Indigenous barrister with an exciting future ahead of him. His career in the law spans across public and private practise as well as both criminal and civil law,” said Ian Robertson SC, Chair of the ABA’s Advocacy Training Council (ATC).

The ATC Indigenous scholarship is awarded to Indigenous barristers with more than 3 years’ experience at the Bar, and is designed to assist them with their advocacy skills development and to create stronger career pathways within the profession.

“The Australian Bar Association is acutely aware of the underrepresentation of Indigenous Australians in the legal profession. The ATC’s Indigenous scholarship program is one small step toward redressing that issue. We’re pleased to be able to provide this opportunity to assist an Indigenous member of the Bar,” said Ian Robertson SC.

Lincoln Crowley’s career in law began in 1997 as a solicitor for the Aboriginal Legal Service in Townsville, appearing in court on a daily basis on behalf of Aboriginal and Torres Strait Islander people. In 2001, Mr Crowley took a position as a civil litigation solicitor within the NSW Crown Solicitor’s office.  With the dream to become a specialist advocate, Mr Crowley joined the NSW Bar in 2003 and began practise as a Barrister before moving back to Queensland.

Since that time, he has developed a specialist practice in criminal law, both as a Prosecutor and as Defence counsel.  He has held various positions as a Crown Prosecutor and continues to be privately retained throughout Australia to prosecute for the Commonwealth, most recently successfully prosecuting Oliver Curtis in Sydney for an insider trading conspiracy and Omar Succarieh in Brisbane for terror-related charges.

 “It is a great honour to accept the 2017 ATC Indigenous scholarship and a wonderful opportunity to be able to hone and develop my advocacy skills under the tuition of some of the best advocates the country has to offer,” said Lincoln Crowley.

“I enjoy the constant challenges that life as an advocate presents and I am very proud of what I have achieved within the law. I hope that in the future I will have the opportunity to challenge myself further and continue to pursue the types of cases that really matter in achieving justice,” said Lincoln Crowley.

The ATC scholarship program supports young Indigenous barristers in furthering their education and advocacy skills by offering placements on the nation’s best advocacy skills training courses. These courses provide opportunities to be trained and mentored by some of the best advocates in the national profession, as well as past and current members of the judiciary.

Lincoln Crowley participated in the ATC’s 2017 Advanced Trial Advocacy Intensive in Sydney this year.

Statement from the Australian Bar Association – Terms of Reference finalised for ALRC Inquiry into incarceration rate of Indigenous Australians

10 February 2017

Australian Bar Association has welcomed the appointment of Judge Matthew Meyers AM of the Federal Circuit Court of Australia as Commissioner of the Australian Law Reform Commission (ALRC) inquiry into the incarceration rate of Indigenous Australians.

The ABA believes the terms of reference will allow the ALRC to consider the complex nature of the underlying causes of Indigenous imprisonment and the criminal justice policies which may be contributing to its’ disproportionate growth.  The ABA’s is pleased to see the terms of reference include the scope to review recommendations from previous reports, an evaluation of the effectiveness of justice reinvestment programs and consultation with the Indigenous community.

 “The ABA looks forward to ALRC recommendations into Indigenous incarceration rates, and will continue to campaign Governments to immediately introduce the legal reforms that have already been recommended,” said ABA President Will Alstergren QC.

 

Letter to the editor of the Daily Telegraph from the Australian Bar Association

03 February 2017

3/2/17

Dear Editor,

The Daily Telegraph should be embarrassed of yesterday’s article by Janet Fife-Yeomans (“Judge slams ‘racist sentiment’ and says law will uphold fairness” Feb 2 2017) which unfairly and incorrectly criticises the State’s most senior judicial officer, the Hon Chief Justice Tom Bathurst AC.

While Ms Fife-Yeoman’s has clearly found the time to criticise the Chief Justice, it is abundantly clear by her report of his Honour’s opening of law term address, that she has not found the time to read the address in full and report it accurately.

Despite the misconstrued and inaccurate connection made by Ms Fife-Yeomans, the Chief Justice’s speech does not claim the rule of law in Australia is in danger because of “rampant racism” in our country.

Quite the opposite, the Chief Justice discusses a time in Australia’s history, some 128 years ago, that one of the most serious threats to the rule of law was grounded in xenophobia. Never throughout the address does the Chief Justice refer to a current “racist sentiment” within the Australian community. Rather, His Honour expresses how far we have come by highlighting the diversity in Australia and references the work done by the court to promote inclusivity and participation in the legal system, as well as increasing accessibility and transparency.

Ms Fife-Yeoman’s report was unfair and showed a lack of understanding of the issues addressed. Regrettably, inaccurate reporting such as this by Ms Fife-Yeomans compromises the public’s confidence in the judicial system which is core to the effective administration of justice.

In his time as NSW Chief Justice, the Hon Tom Bathurst has increased accessibility, understanding and transparency of the court’s work. He has introduced judgement summaries to improve community understanding of the court’s work, his communication is contemporary, I.e., the court now tweets and posts court updates on facebook, and His Honour personally participates regularly in media interviews with a range of mainstream press, TV and radio.

I urge anyone who read Ms Fife-Yeomans’ article to take the time to read the Chief Justices’ speech for themselves, because when read correctly, it tells a story of an Australian judiciary striving for increased transparency, accessibility, equality and fairness.

Will Alstergren QC

President, The Australian Bar Association

ABA thanks 2016 President Patrick O’Sullivan QC and welcomes in the 2017 law term with a new President and CEO

01 February 2017

The Australian Bar Association has welcomed in the 2017 law term with the announcement of the association’s new President, Will Alstergren QC and new CEO, Cindy Penrose.

 

In announcing the new appointments, the ABA acknowledged the work of 2016 President, Patrick O’Sullivan QC, referencing his tireless efforts and energy invested into advocating for legislation changes to help reduce the nation’s Indigenous incarceration rates.

 

“Patrick’s work over the past year demonstrates his passion to assist those in our legal system who are most in need. He has been committed to right the social injustice that is the level of Indigenous incarceration, and it is a great testament to him that the Commonwealth Attorney General invited the ABA to partner with the government in the settlement of the Terms of Reference for the upcoming ALRC examination into Indigenous incarceration,” said 2017 ABA President Will Alstergren QC.

 

In accepting his appointment as ABA President for 2017, Mr Alstergren QC said, “It is a great honour and privilege to represent such a uniquely independent body as the Australian Bar Association. I hope to continue Patrick O’Sullivan’s great work to further promote the availability and quality of Australian barristers, and to act as respected voice of reason and advocate for the wider community.”

 

Mr Alstergren QC confirmed his plans to continue the ABA’s focus on alternative practical solutions to the challenges presented by the country’s legal assistance budget.

“Australia’s legal assistance services are increasingly under-resourced leaving thousands of Australians without adequate access to quality legal advice and assistance. Of course we need to be looking at ways to increase the funding of legal assistance, but we should also look at how we can deliver justice differently and more efficiently through better use of alternative dispute resolution,” said Mr Alstergren QC.

Mr Alstergren also highlighted his commitment to members to better educate corporate counsel and law firms about the need to have barristers briefed more effectively and earlier in litigation to help clarify the management of the entire dispute resolution process, empower clients to make informed decisions, and potentially reduce overall legal fees.

The ABA has also thanked Philip Selth OAM for his work as the Association’s CEO for the period 2015-2017 and has announced the appointment of Cindy Penrose as the ABA’s new CEO.

 

ABA President, Will Alstergren QC said Ms Penrose ‘brings a wealth of experience to the ABA at this important stage of its development, and I am confident she will make a significant contribution to the role’.

 

As the first female CEO of the ABA, Ms Penrose comes with extensive experience both as a criminal lawyer and lecturer, as well as serving the NSW Bar Association as its Senior Policy Lawyer for five years. Ms Penrose holds a master’s degree in law and currently sits on the board of the Tristan Jepson Foundation.

 

The 2017 ABA Council – www.austbar.asn.au/about-the-aba/aba-council

President - William Alstergren QC
Past Chairman (2014), The Victorian Bar

Vice-President - Christopher Hughes QC
President, Bar Association of Queensland

Vice-President – Noel Hutley SC
President, New South Wales Bar Association

Treasurer - Matthew Howard SC
President, Western Australian Bar Association

 

CV – Will Alstergren QC

Mr Alstergren QC is based in Victoria and has an extensive practice in the Supreme and Federal Courts. He has advised on large commercial matters and is often brought in to lead in specialist areas including company law, trusts, industrial, tax, intellectual property, construction and large complex disputes (including ASIC matters).

 

Mr Alstergren is a founding member of the committee to set up the Melbourne Arbitration Centre and is a current board member of the Australian Centre for International Arbitration in Sydney.

 

Will was the founder of the Victorian Bar's Duty Barristers Scheme and won the Victorian Bar's Pro Bono Award in 2012. He is currently completing a PhD in this area. He is a former Chairman of the Victorian Bar Council is also Vice President of the Victorian Olympic Council. 

He has also conducted substantial Inquiries for the Royal Australian Navy and is a serving member of the Navy Reserve Legal Panel (Lieutenant Commander). 

ABA welcomes consultation process for ALRC examination into Indigenous incarceration

07 December 2016

ABA welcomes consultation process for ALRC examination into Indigenous incarceration

The Australian Bar Association welcomes the Federal Government’s consultation on the draft terms of reference for the Australian Law Reform Commission (ALRC) inquiry into the incarceration rates of Indigenous Australians and encourages Commonwealth and State Governments to introduce immediately legislative and regulatory reforms.

 

“The upcoming ALRC inquiry is an excellent initiative and much needed, however there is no reason why Governments cannot introduce the legal reforms that have already been recommended now” said ABA President Patrick O’Sullivan QC.

 

The Australian Bar Association (ABA) has submitted a set of proposed terms of reference that would allow the ALRC to consider the complex nature of the underlying causes of Indigenous imprisonment and the criminal justice policies which may be contributing to its’ disproportionate growth.  The ABA’s proposed terms also provide scope to review recommendations from previous reports and evaluate the effectiveness of existing justice reinvestment programs both in Australia and overseas.

 

The ABA submission on the proposed terms of reference emphasises the necessity for the ALRC inquiry to consider law reform to address these issues.  “Law reform measures such as the amendment of incarceration for the non-payment of fines for low-level offences which don’t warrant imprisonment would be an immediate action and reflective of a commitment to reduce the over-representation of Aboriginal people in the justice system,” said Mr O’Sullivan QC.

 

“This year, Australia marked the 25th anniversary of the tabling of the recommendations of the Royal Commission into Aboriginal deaths in custody. The anniversary was both alarming and sobering because, in that same period of time, the rate of Indigenous incarceration has doubled from 14 percent to 27 percent.”

 

“The ABA has and will continue to campaign for an introduction of immediate measures including the removal of certain mandatory sentencing laws that have the biggest impact with minimum effect on Indigenous people, as well as a review of bail laws, fine default imprisonment and investing in justice reinvestment programs.”

 

“There is a real sense of momentum from government to address the nation’s Indigenous incarceration rates, and the ALRC examination is a genuine example of that. To ensure the examination delivers real change, the involvement and consultation with the Indigenous community throughout this process is an absolute priority” said Mr O’Sullivan QC.

View the PDF here

Farewell to the Honourable Robert Shenton French AC

05 December 2016

View the PDF here

High Court of Australia Appointments

29 November 2016

“The Australian Bar Association warmly welcomes the announcement of the appointment of Justice Susan Kiefel as Chief Justice of the High Court of Australia. Justice Kiefel has had an outstanding career to date as a Justice of the High Court and has long been held in the highest regard by the profession.  It is also a significant milestone and worthy of acknowledging her Honour’s appointment as the first female High Court Chief Justice in the court’s 113-year history,” said ABA President Patrick O’Sullivan QC.

“Justice Kiefel’s career has been notably ground breaking and has clocked up a number of “firsts” over the years. Her Honour was the first female barrister in Queensland to become a Queens Counsel and was also the first female appointed to the Queensland Supreme Court. Justice Kiefel is one of Australia’s most outstanding judicial officers and an inspiration to young women throughout the profession and Australia.”

 “The ABA also commends the appointment of Justice James Edelman to the High Court of Australia. Justice Edelman’s career to date has been one of stellar achievement in both academic and legal practice, having been awarded a Doctorate of Philosophy from the University of Oxford, appointed to the Western Australian Supreme Court in 2011 and the Federal Court of Australia in 2015.”

“We look forward to following both Chief Justice Kiefel and Justice Edelman in their continued commitment to public service, upholding the rule of law and delivering justice in Australia.”

View the PDF here

“ALRC EXAMINATION INTO INDIGENOUS INCARCERATION RATES IS A NATIONAL PRIORITY” SAYS ABA PRESIDENT

27 October 2016

The President of the Australian Bar Association (ABA), Patrick O’Sullivan QC, has applauded the Commonwealth Attorney-General, Senator the Hon George Brandis QC, on today’s announcement of a national Law Reform Commission examination into Indigenous incarceration, which will consider law reform measures to tackle Indigenous imprisonment rates.

“The over-representation of Indigenous people incarcerated is a national disgrace and this announcement of an is a significant opportunity to make informed and practical changes that address this problem and delivers better justice outcomes for Indigenous Australians and the country as a whole,” said ABA President, Patrick O’Sullivan QC.

Addressing the legal profession at the Australian Bar Association and Victorian Bar 2016 National Legal Conference in Melbourne today, the Commonwealth Attorney-General announced the Australian Law Reform Commission reference to examine issues of indigenous incarceration and consider law reform measures put in place to ameliorate this situation.

“The ABA has consistently called for national co-operation to address the shocking and disproportionate rates of Indigenous incarceration. In particular, we have proposed a range of measures including the removal of certain mandatory sentencing laws that have the biggest impact with minimum effect on Indigenous people, as well as a review of bail laws, fine default imprisonment and investing in justice reinvestment programs,” said Mr O’Sullivan QC.

The current situation:

  • Incarceration rates of Indigenous Australians are 16 times higher non-Indigenous Australians
  • Indigenous children and teenagers are 24 times more likely to be incarcerated than non-Indigenous children.
  • Indigenous women are almost 30 times more likely to be incarcerated than non-indigenous women.

“Australia’s Indigenous incarceration rate is one of the most challenging human rights issues facing our country today and one that has been of deep concern to the Australian Bar Association. Today’s announcement is a positive and necessary step towards addressing one of Australia’s most alarming issues,”

The government will consult with the ABA and the Indigenous community to develop the terms of reference to the ALRC examination.

View the PDF here

Australian Bar Association adopts LCA Equitable Briefing Policy and considers practical measures to implementation.

20 October 2016

The President of the Australian Bar Association, Patrick O’Sullivan QC, has today confirmed the ABA’s commitment to promoting excellence, diversity and inclusion at the Bar by adopting the Law Council of Australia’s Equitable Briefing Policy.

“The ABA has and always will promote the high quality and specialist skills of the Bar and by adopting the LCA’s equitable briefing policy we are working towards ensuring that applies to all of its members.”

Last week, the ABA’s Diversity and Inclusivity Committee, chaired by Kate Eastman SC, held a roundtable forum at Allens in Sydney, with barristers, law firms, corporate counsel and government representatives. The forum presented an opportunity to openly discuss some of the barriers to equitable briefing and to identify practical measures that may assist clients, law firms and the wider profession meet the policy’s objectives.

“In some areas of the law and in certain sectors, we’re witnessing excellent progress.  It appears that the common theme amongst those implementing equitable briefing policies successfully, is a genuine commitment to cultural change, to the policy and to its objectives starting from the top of an organisation.”

The Equitable Briefing Policy includes the objective of briefing women in at least 30 per cent of all matters and paying 30 per cent of the value of all brief fees by 2020.

Ross Drinnan, Head of Litigation at Allens said, “There are extremely talented women at the bar and, in order to ensure we offer the best representation to our clients, we need to make sure we are identifying and working with of all of those women.   Policies that help us identify and work with excellent barristers, regardless of gender, is in everyone’s best interests.”

Sue Laver, General Counsel Dispute Resolution, at Telstra said: “There is no doubt the legal profession has changed and has become a more accurate reflection of our society. However, while we are seeing more female law graduates than men – women still remain under-represented in senior levels within the industry, and at the Bar.

“Telstra has been actively leading equitable briefing for many years now and has a strong record in this space. The profession and society as a whole benefits from giving men and women equal opportunities.”

Among the practical measures discussed to assist equitable briefing practices include:

  • Annual promotion of new readers coming through the Bar
  • Directives from organisational leadership teams to identify and brief women barristers with relevant expertise and experience
  • Referrals and recommendations from Silks for highly skilled junior women barristers
  • Improved online directory of barristers and their experience

“The ABA forum was an excellent opportunity to discuss the challenges and opportunities of equitable briefing practices and has provided the ABA with a number of tangible and realistic measures to explore and develop in order to assist the bar in its work towards the objectives within the equitable briefing policy”, said Patrick O’Sullivan QC.

View the PDF here

Australian Bar Association responds to alarming BOCSAR statistics that shows 40% of Indigenous defendants on remand do not go on to receive custodial sentences.

28 September 2016

Australian Bar Association has responded to today’s release of the latest BOCSAR statistics on NSW Indigenous crime and imprisonment, calling on governments to take a closer look at bail and community-based orders and their impact on the increasing rates of Indigenous incarceration.

Today’s reports show that Indigenous imprisonment rates in NSW have risen by 40% over the past 15 years, despite a nearly 37% decline in the Indigenous arrest rate for violent offences and 32% decline in the Indigenous arrest rate for property crime.

Australian Bar Association’s Indigenous Issues Committee Chair, Phillip Boulten SC said, “The ABA is extremely concerned by the latest statistics that show 40% of NSW Indigenous defendants who are being held in prison on remand, do not go on to receive a custodial sentence. This again highlights the inappropriateness of the state’s bail laws as a major contributor to the increasing rates of Indigenous incarceration.”

“In many cases, people in disadvantaged circumstances have no stable address to be bailed to and as a result are locked up. We need to consider more practical measures, such as bailing Indigenous offenders to a community of elders, and giving these communities a role in the justice process.”

The BOSCAR report states that the rise in Indigenous imprisonment in NSW is due to a combination of factors, but also cites a significant increase in justice procedure as part of the reason behind the increase.

“Justice procedure offences are those related to breaches of custodial orders, such as bail conditions, community-based orders and breaches in Apprehended Violence Orders. As we have witnessed from recent media reports, such as the 4 Corners story on Justice Reinvestment in Bourke, these breaches can be trivial and sometimes impossible for people in disadvantaged communities to comply with,” said Mr Boulten SC.

“There are on average 30,000 prisoners in Australia at any one time, a quarter of them Indigenous, costing the country $3 billion a year. Even a 10 percent reduction in the Indigenous imprisonment rate would save more than $10 million a year,’ said Mr Boulten SC.

“The ABA is pleased and encouraged to see a significant reduction in Indigenous arrest rates in NSW, but would ultimately like to see those rates translate to a reduction in Indigenous imprisonment. NSW is not alone in having a rising rate of Indigenous imprisonment, nor is it the jurisdiction with the highest rate of increase.”

View the PDF here

Australian Bar Association welcomes new legislation addressing fine default imprisonment in Western Australia

15 September 2016

 

The Australian Bar Association has today welcomed the Western Australian government’s new legislation aimed at reducing the rate of Indigenous incarceration for non-payment of fines.

 

 

ABA President Patrick O’Sullivan QC commended the announcement stating, “Imprisonment for default of payment is unjust, unfair to poor offenders, dangerous to vulnerable offenders, expensive and disproportionate in its effect on indigenous offenders. Today’s announcement is a one step in the right direction to addressing Western Australia’s alarming Indigenous incarceration rates.”

 

 

The new Sentencing Legislation Amendment Bill 2016, introduced into Western Australia’s Parliament by Attorney General Michael Mischin, proposes allowing an offender to undertake community work in lieu of paying a fine under an enhanced Conditional Release Order regime.

 

 

Last week, ABA President Patrick O’Sullivan QC met with the Western Australian Attorney General Michael Mischin to discuss fine default imprisonment and its impact on the State’s Indigenous incarceration rates.

 

 

Along with changes to fine default imprisonment, Mr O’Sullivan QC also proposed the removal of mandatory sentencing and increased investment into justice reinvestment programs as a way to tackle Indigenous incarceration rates, with a particular emphasis on Indigenous youth incarceration.

 

 

“In Australia, Indigenous children and teenagers are 24 times more likely to be incarcerated than their non-Indigenous peers. However, in Western Australia, young Indigenous people are 52 times more likely to end up behind bars. These rates are unacceptable and continue to be a matter of deep concern to the Australian Bar Association,” said ABA President, Patrick O’Sullivan QC.

 

 

“In Western Australia, it costs about $300,000 per year to keep a child in detention. Given the fact they are more likely to graduate to adult prison than graduate from high school, we’re clearly not investing that money very effectively.”

 

 

The Australian Bar Association has proposed the following options to assist the Western Australian government to make cost effective and practical changes that would further reduce Indigenous incarceration rates:

 


  • Removal of mandatory sentencing laws that have the biggest impact on Indigenous people but deliver minimum effects, such as minor assault, some driving offences and minor theft.

  • Invest in Justice Reinvestment: Channel money that would have been spent on housing prisoners into community projects aimed at keeping Indigenous offenders out of prison. Oregon (US) experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services.



  •  

 

 

 

“The over-representation of Indigenous people in incarceration is a national disgrace. It is time to take action that addresses the problem and delivers better justice outcomes for Indigenous Australians and the country as a whole.”

 

 

Rates of Indigenous incarceration in Western Australia:

 


  • Indigenous people account for 3% of the Western Australian population, yet they make up approximately 40% of the prison population.

  • The rate of imprisonment of Indigenous women is rising faster than the rate pertaining to males, with Indigenous women now comprising more than 50% of the female prison population in Western Australia.

  • In Western Australia, Indigenous people aged between 10-17 are 52 times more likely to be incarcerated than non-indigenous children.

  • The gap between Indigenous and non-Indigenous incarceration rates has grown every year since 2010-11.


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View the PDF here

ABA considers alternative funding options to Australia’s legal assistance crisis.

09 September 2016

The Australian Bar Association says that in addition to continuing to press Federal and State Governments to appropriately fund legal assistance for those in need, it is considering new and alternative sources of funding for the sector.

“We know Australia’s legal assistance services such as legal aid and community legal centres throughout the country are in crisis and everyday Australians are being denied access to justice as a result. We also know governments are working with increasingly strained resources.” said ABA President, Patrick O’Sullivan QC.

“We’re not suggesting governments take their eyes off the ball. We’re suggesting that we need to start thinking about doing things differently and look at the current challenges as an opportunity to innovate and change,” said Mr O’Sullivan QC.

Last week, the ABA held a round-table discussion in Brisbane with representatives from State Bars, the Queensland Public Defender’s Office, the Aboriginal and Torres Strait Islander Legal Service and the National Association of Community Legal Centres.

“The forum presented an open discussion about ways to increase the funding of legal assistance through other means, and also looked at how we can deliver justice differently and more efficiently through better use of alternative dispute resolution.”

“As part of the discussion, we looked at the precursors that lead people to come into contact with the justice system, such as alcohol and gambling. We need to have a good look at these issues and consider revenue raising options from the alcohol and gambling industries to directly support legal assistance.”

Among the options to be considered and further investigated include:

  • The creation of legal assistance funds with sources of income from:
  • Special industry levies associated with the relevance and relationship between alcohol, gambling and our entire justice system.
  • Speeding fines levy – a model of which already exists in some jurisdictions
  • High Income Corporation Levy
  • Innovative and more efficient justice options: Alternative dispute resolution such as legislative amendments to Family Law Regulations to allow for arbitration in non-complex children’s matters.

“The ABA considers that more equal access to justice through the legal assistance sector is a crucial issue for society. While the ABA is looking at new ways of doing things, it remains a core part of what government should fund and provide. The options which the ABA is considering are not in substitution for government funding. Campaigns such as Legal Aid Matters have an important role to play and the ABA is entirely supportive of them. However, we also believe it is time to consider alternatives available to assist and support current funding sources.”

The Australian Bar Association will prepare and present a detailed discussion paper to the Federal Government later this year.

View the PDF here

Australia’s most prestigious legal conference promises to inspire, stimulate and innovate while tackling the greatest legal challenges in the country.

07 September 2016

The Australian Bar Association in conjunction with the Victorian Bar is hosting the National Legal Conference in Melbourne on 27-28 October 2016. The Conference includes what has been described as the most impressive line-up of speakers ever presented at a legal conference in Australia.

Australian Bar Association President, Patrick O’Sullivan QC, said the conference will showcase the leaders of the profession from the Bar, Bench, major firms and corporate counsel.

“This is a one of a kind conference that will allow the profession a chance to stop, reflect and discuss the latest state of play, market trends and political influences on the law and global trends in dispute resolution. If you’re a legal professional and want to discover what the future holds, attending this conference will be the best investment you make in your professional development this year,” said Patrick O’Sullivan QC.

The conference will be opened by Senator the Hon George Brandis QC, Commonwealth Attorney General, with the conference key note address by The Hon Chief Justice Robert French AC of the High Court of Australia.

The Victorian Bar President Paul Annastasiou QC said, “A highlight of the conference is the Chief Justices’ session which includes the Chief Justices of the Federal Court, Family Court and every State and Territory Supreme Court in Australia. The panel session will provide a unique opportunity for the country’s most senior judicial officers to present and discuss the latest developments and challenges before the courts.”

The two-day conference covers all areas of the law, from High Court Appeals, the latest developments in intellectual property, evidence, the common law, class actions and commercial arbitration in Asia to terrorism and human rights. It includes Federal Court and Supreme Court Justices, Senior Counsel, State and Shadow Attorneys-General, partners of major law firms and members of Corporate Australia.

“This is a conference for the entire legal profession, providing delegates with unique opportunities to engage and network with senior counsel, members of the judiciary and general counsel. Delegates will be inspired by leaders in the field sharing insights into strategy, leadership and innovation within the profession,” said Mr Annastasiou QC.

“The most important issues currently facing the legal profession and Australia will be discussed, debated and explored. We will have some of the greatest minds in one place to provide insight, experience and thought provoking ideas on how to tackle current legal challenges,” said Mr O’Sullivan QC.

The ABA and Victorian Bar National Conference runs from 27-28 October and further information and registration details are available at www.abavicbar2016.com.au

View the PDF here

Bombing attack on grieving lawyers in Quetta, Pakistan: Statement from ABA President Patrick O’Sullivan QC

10 August 2016

“The Australian Bar Association is shocked and saddened by news of a targeted bombing attack on grieving lawyers and mourners in Quetta, Pakistan, following the murder of the former President of the Baluchistan Bar Association,” said Australian Bar Association President, Patrick O’Sullivan QC.

“We understand the attack, in which 70 people were killed, targeted a gathering of mourners who were grieving the loss of Bilal Anwar Kasi who had been shot and killed earlier in the day.”

“The Australian Bar Association condemns the attack and extend its deepest sympathies and condolences to the lawyers, friends and families involved.”

Royal Commission into youth detention in the NT: Statement from ABA President Patrick O’Sullivan QC

01 August 2016

“The Australian Bar Association welcomes today’s appointment of Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda and The Hon Margaret White AO as joint Commissioners for the Royal Commission into the child protection and youth detention systems of the Northern Territory.

“Mick Gooda is highly qualified and cognisant of the challenges faced by indigenous people coming in contact with the justice system. His appointment is welcomed by the ABA,” said ABA President Patrick O’Sullivan QC.

“The ABA also congratulates Margaret White AO on her appointment as joint-commissioner and has full confidence that the two will conduct a thorough and detailed examination of the problems within the youth detention system in the Northern Territory.”

“The outpouring of community concern, anger and shame over the past week demonstrates the country’s desire for change. The ABA has full confidence in the Royal Commission to make recommendations that will lead to real and systemic change within the youth justice system in the Northern Territory.”

Australia’s youth detention shame aired on ABC Four Corners

26 July 2016

The Australian Bar Association considers the images shown on ABC Four Corners exposing the horrific and alarming treatment of children in detention in the Northern Territory as a national disgrace which cannot be ignored.

“There is no doubt that anyone who viewed last night’s Four Corners program could feel anything but extreme distress, anger and disgust,” said ABA President Patrick O’Sullivan QC.

The ABA is calling for  bi-partisan support from the Commonwealth Government for immediate assistance to the Northern Territory to address at least the following key areas:

  • Immediately commit to building a fit for purpose youth detention facility in the Northern Territory which is to be staffed by appropriately trained personnel.
  • Put in place diversion and education programs to prevent youth coming into contact with the justice system in the first place.
  • Provide all detainees with access to rehabilitation and education programs to minimise the risk of re-offending and to assist with reintegration back into society.
  • Immediately suspend the use of solitary confinement, spit-hoods and mechanical restraints.

“The emphasis on youth detention should be on reforming young people, not detaining and torturing them. There needs to be investment into prison diversionary programs, meaningful rehabilitation and social welfare? Without it, these children have no chance of realising a fulfilling and meaningful future.”

The ABA has regularly and recently spoken out about youth detention, particularly in the Northern Territory, and believe that the imprisonment of a child should be the last resort.

“This is not just an issue for the Northern Territory. This is an issue for all Australians and one that the world will be looking at us in horror and disgust.”

ABA welcomes Royal Commission into Northern Territory Youth Detention

26 July 2016

The Australian Bar Association welcomes Prime Minister Malcom Turnbull’s announcement this morning for a Royal Commission into abuse at the Northern Territory’s Don Dale youth detention centre.

“There is no doubt that anyone who viewed last night’s Four Corner’s program could feel anything but extreme distress, anger and disgust. The announcement of a Royal Commission is a solid first step as long as the terms of reference allow a far reaching and searching inquiry and include the power for the royal commissioner to recommend the laying of criminal charges if he or she thinks it appropriate,” said ABA President Patrick O’Sullivan QC.

Whilst an independent inquiry into the systemic abuse at the Don Dale centre is necessary, The ABA is calling for immediate action to address the following key issues:

  • Immediately commit to building a fit for purpose youth detention facility in the Northern Territory which is to be staffed by appropriately trained personnel.
  • Put in place diversion and education programs to prevent youth coming into contact with the justice system in the first place.
  • Provide all detainees with access to rehabilitation and education programs to minimise the risk of re-offending and to assist with reintegration back into society.
  • Immediately suspend the use of solitary confinement, spit-hoods and mechanical restraints.

“The emphasis on youth detention should be on the rehabilitation of young offenders and the prevention of youth coming into justice system, not the detention and maltreatment of young people. There needs to be investment into prison diversionary programs, meaningful rehabilitation and social welfare. Without it, these children have no chance of realising a fulfilling and meaningful future.”

ABA response to the Federal Government’s proposed anti-terror legislation

26 July 2016

The Australian Bar Association has called upon the Federal Government to exercise caution when updating counter-terrorism legislation, particularly in relation to the extension of imprisonment of terrorists who, after serving their sentence, continue to pose an unacceptable risk to the community.

Whilst acknowledging that the measures will only be used in the most serious of circumstances, nonetheless the ABA notes that the proposal needs to be safeguarded and subjected to the same evidentiary and appellate review as any criminal proceeding.

The ABA firmly believes in the rule of law and urges the Government to maintain an appropriate balance between the undeniable need to keep the community safe with the protection of fundamental legal rights.

The ABA is always available for consultation on government legislation and has welcomed the opportunity on this occasion.

MEDIA ENQUIRIES: Jo Oakes  Mobile: 0439 700 076   email: media@austbar.asn.au

Independence of Malaysian Bar under threat.

19 July 2016

The Australian Bar Association has called upon the Malaysian Government to reconsider its proposed changes to the country’s Legal Profession Act 1976 (LPA) which threatens the independence of the Bar and the rule of law in Malaysia.

“Australia and Malaysia enjoy good relations, a strong friendship and shared values.  Among those shared values, is the acknowledgment that an independent legal profession is one of the essential prerequisites for the protection of human rights, the rule of law, good governance and democracy.  It is for that reason that the ABA supports the ongoing independence of Malaysia’s legal profession,” said ABA President Patrick O’Sullivan QC.

The Government of Malaysia is proposing a number of changes to the LPA, including a provision to grant the minister in charge of legal affairs the power to appoint two members of the Bar onto the Bar Council, who will represent the government.

The Malaysian Bar is an association whose aim is “to uphold the rule of law and the cause of justice and protect the interests of the legal profession as well as the public”. It is managed by a 38-member Bar Council, elected annually from among its membership.

“This proposal would effectively not only give the Attorney General the opportunity to receive reports on the deliberations and actions of this independent institution but importantly, it also provides the opportunity to influence those deliberations and actions.“

“The Malaysian Bar has long been a defender of human rights and the rule of law in Malaysia.  It is that very independence which has benefited the people of Malaysia for many years, however under such an arrangement, the Malaysian Bar’s ability to address on controversial issues that are at odds with the government would be compromised. As a consequence, the people of Malaysia would be adversely affected,” said Mr O’Sullivan QC.

The UN Basic Principles on the Role of Lawyers require governments to ensure that lawyers can perform all their professional functions without intimidation, hindrance, harassment or improper interference. The principles also state that “lawyers shall be entitled to form and join self-governing professional associations”, and that “the executive body of such associations should be elected by its members and exercise its functions without external interference”.

The ABA has written an open letter to the Government of Malaysia highlighting concerns that the proposed amendments could have serious ramifications on the right of lawyers to maintain the rule of law without fear or favour.

The Malaysian Government’s proposed amendments to the Legal Profession Act 1976 are scheduled to be tabled in parliament in October 2016.

To view ABA’s open letter to the Prime Minister of Malaysia click here.

View the PDF here

Australian Bar Association President visits Northern Territory and Timor Leste, Dili

13 July 2016

The President of the Australian Bar Association, Patrick O’Sullivan QC, is this week shining a spot light on some of the legal issues facing the Northern Territory and our regional neighbours in Timor Leste, Dili with a visit to Australia’s top end.

Honouring his commitment to meet with State and Territory Attorneys-General and respective opposition members this year, Mr O’Sullivan QC has this week met with Northern Territory Attorney-General John Elferink and Shadow Minister for Corrections Natasha Fyles to discuss a range of issues including indigenous incarceration, bail laws for juveniles, mandatory sentencing, fine default imprisonment and domestic violence.

“The Australian Bar Association and the Northern Territory Bar Association recently voiced concerns about the Territory’s proposed bail legislation which would remove the presumption  in favour of bail for juveniles in relation to repeat property offenders. If the proposed legislation becomes law, it will have the effect of making it harder for children to get bail before they receive a trial. This proposal flies in the face of the presumption of innocence and the fundamental principle that imprisonment of a child should be the last resort,” said Mr O’Sullivan QC.

“The ABA believes these law will disproportionately target young indigenous men in the Northern Territory, where the rate of indigenous people in prison is close to 90 percent. Indigenous incarceration is a national crisis and we need to be looking at solutions that divert indigenous people from the criminal justice system, not the other way around.”

Whilst in Darwin, Mr O’Sullivan also met with the new Chief Justice of the Northern Territory, The Hon Michael Grant CJ.

“It was a pleasure to meet with and discuss various issues with him. He comes with an exemplary reputation as an advocate of the highest order and his vast experience across so many areas will serve the Court well.”

On Thursday 14th July, the ABA President will travel to Timor Leste, Dili to attend the 2016 Northern Territory Bar Association’s annual conference.

“The conference provides an important opportunity for the Australian Bar and the legal profession as a whole to observe the Timor Leste legal system and see how the Australian Bar may be able to assist,” said Mr O’Sullivan QC.

“Dili is one of Australia’s closest neighbours in the region, and one that has seen a significant amount of change in recent times.”

Issues to be presented and discussed at the conference include judicial independence and accountability, maritime issues in the Timor Gap, regional opportunities for commercial arbitration, youth justice and domestic violence.

View the PDF here

Gender pay gap: Statement from ABA President Patrick O’Sullivan QC

09 June 2016

The ABA was aware of the pay equity gap arising in NSW in particular and cannot specifically comment on the situation in the other states and territories as it is in NSW. However, from the work the ABA has done as part of its commitment to equity and diversity, the ABA is aware that equal pay and gender pay gaps for women and men barristers is an important issue.

The ABA supports the work of the Law Council of Australia in reviewing the equitable briefing model briefing practices policy and it supports a range of measures to address equity for women barristers and bridging the gender pay gap. These measures include setting of targets, mentoring and a range of implementation strategies to ensure that when barristers are selected, discrimination on the basis of gender is not and should not be a factor.

Originally published in the Sydney Morning Herald, 9th June, 2016

AUSTRALIAN BAR ASSOCIATION URGES NORTHERN TERRITORY TO RECONSIDER PROPOSED BAIL LEGISLATION

26 May 2016

The Australian Bar Association says the Northern Territory’s proposed bail legislation to remove the presumption in favour of bail for repeat property offenders will only further exacerbate Australia’s disgraceful Indigenous incarceration rates.

ABA President Patrick O’Sullivan QC said, “This proposed legislation will disproportionately target young Indigenous Australians in the Northern Territory, where the rate of indigenous people in prison is close to 90 percent. Indigenous incarceration is a national crisis and we need to be looking at solutions that divert indigenous people from the criminal justice system, not the other way around.”

“It is a shocking fact that an Indigenous young person who has served a prison sentence is more likely to return to prison than finish school. On the other hand, we’ve seen that early intervention, prevention and diversion programs used in the ACT, have seen rates of young people in detention decrease by 35 per cent and arrests of young people down by 20 per cent over two years.”

The Australian Bar Association recently proposed that mandatory sentencing laws, that have the biggest impact with minimum effect on Indigenous people, be amended or removed, and funds saved from housing prisoners redirected into programs that rehabilitate and reduce recidivism.

“Oregon in the US experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services. The evidence into the value and efficacy of Justice Reinvestment strategies exists. It’s time we put these programs into practice and start seeing some real changes to the Indigenous incarceration rate and break the cycle of crime.”

The Australian Bar Association is urging the Northern Territory to urgently reconsider this proposal before it becomes another hurdle to overcome in the struggle to reduce Indigenous incarceration rates in Australia.

View the PDF here

Legal Aid: Statement from ABA President Patrick O’Sullivan QC

16 May 2016

The Australian Bar Association acknowledges the Federal Government’s recent $30 million injection to legal assistance services, to support families in crisis, but we believe it falls well short of the $200 million that was recommended by last year’s Productivity Commission Report.

The current situation is untenable, restricting legal assistance is counter-productive and has made the court system less efficient and more expensive. Long delays in the justice system are becoming increasingly common as a growing number of people are having to represent themselves in court.

The ABA challenges claims that legal aid cuts are unavoidable, and rather has serious concerns regarding the fundamental importance of procedural safeguards and due process, which can be provided with legal representation. The additional family violence funding is a first step into adequate and sustainable long term funding, which is urgently required for the entire legal assistance sector.

The fundamental tenet of the justice system, is that everyone has access to legal advice. If that is eroded there is real danger to the justice system and its reputation.

“Amend mandatory sentencing and watch Indigenous incarceration rates fall” says ABA President

08 April 2016

The President of the Australian Bar Association (ABA), Patrick O’Sullivan QC, is calling for national co-operation to tackle the alarming and disproportionate rates of Indigenous incarceration. The ABA is proposing mandatory sentencing laws, that have the biggest impact with minimum effect on Indigenous people, be amended or removed, and funds saved from housing prisoners redirected into programs that rehabilitate and reduce recidivism.

“Australia’s Indigenous incarceration rate is one of the most challenging human rights issues facing the country today. The proportion of Indigenous prisoners has almost doubled over the 20 years since the Royal Commission into Aboriginal Deaths in Custody (RCADIC) and is a matter of deep concern to the Australian Bar Association,” said ABA President, Patrick O’Sullivan QC.

The ABA President has this week met with the Federal Attorney-General George Brandis QC to discuss the ABA’s proposals and to encourage the Federal Government to commit to action that will deliver better justice outcomes for all. The ABA President will also meet with other State Attorney’s General throughout the year, where this issue will continue to be a high priority for the ABA.

The current situation:

  • Incarceration rates of Indigenous Australians are at least 16 times higher than the rate for non-ATSI Australians.
  • Indigenous children between 10-14 years of age are 30 times more likely to be incarcerated than their non-indigenous peers.
  • Indigenous women are almost 20 times more likely to be incarcerated than non-indigenous women.

“Across the country, Indigenous people comprise of more than a quarter of the prison population despite only accounting for almost 3 per cent of the national population. The situation is amplified in the Northern Territory where the rate of indigenous people in prison is closer to 90 per cent,” said Patrick O’Sullivan QC.

“It is a shocking fact that an Indigenous young person who has served a prison sentence is more likely to return to prison than finish school. And on any given night in Australia, over half of all young people in detention are Indigenous.”

A recent report by the Australian Institute of Criminology found a key factor contributing to the disproportionate Indigenous over-representation is that of State and Territory government bail and sentencing policies, particularly in jurisdictions with high populations of Indigenous people where mandatory sentencing laws operate, and individuals are often incarcerated for trivial offences.

“Mandatory sentencing appears a significantly attractive option to reduce crime and provide consistency in sentencing, however a lack of evidence exists as to the efficacy as a deterrent or the ability to decrease crime, particularly around minor theft, driving offences and minor assault.”

“We only need to look at the experience in the Northern Territory where property crime offences increased during the initial mandatory sentencing regime for such offences, and decreased after its repeal.”

Mandatory sentencing contributes to a higher rate of imprisonment which often unnecessarily increases the costs in the administration of justice. Under mandatory sentencing laws, a defendant has no motivation to plead guilty as there is no chance of a reduced sentence. This means that potentially more contested cases appear before the courts requiring the use of extra resources and producing further court delays.

“There are on average 30,000 prisoners in Australia at any one time, a quarter of them Indigenous, costing the country $3 billion a year. Even a 10 percent reduction in the Indigenous imprisonment rate would save more than $10 million a year.”

The Australian Bar Association proposes the following:

  • Amend or remove mandatory sentencing laws that have the biggest impact on Indigenous people but deliver minimum effects, such as minor assault, driving offences and minor theft.
  • Review fine default imprisonment: Existing mechanisms for the enforcement of fines are unsatisfactory. Imprisonment in default of payment is unjust, unfair to poor offenders, dangerous to vulnerable offenders, expensive and disproportionate in its effect on indigenous offenders. (See case study Ms Dhu)
  • Invest in Justice Reinvestment: channel money that would have been spent on housing prisoners into community projects aimed at keeping Indigenous offenders out of prison. Oregon (US) experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services.

“It makes moral and financial sense to reduce the number of Indigenous people in prison. The over-representation of Indigenous people incarcerated is a national disgrace. It is time to take action that addresses the problem and delivers better justice outcomes for Indigenous Australians and the country as a whole.”

CASE STUDIES

Gloria – assault offences

The Territory Government increased minimum jail times for offenders while restricting judge’s rights to suspend sentences for certain crimes. In 2014, a young woman and mother of four” Gloria” faced jail. She admitted to drunkenly hitting another woman who taunted her about the death of her mother. Under the Territory’s new laws, every first-time offender convicted of a violent offence faces three months in jail. It’s 12 months for repeat offenders. Magistrates’ hands have been tied. “Gloria” has only appeared in court once before for a minor offence. Before the new laws were brought in, she most likely would have been released with a fine.

Mandatory sentencing – driving offences

In courts across Australia, magistrates routinely issue fines and disqualifications for people charged with unlicensed driving. But for many Indigenous people, these court appearances can be the first step towards jail. In NSW alone, recent figures show more than 1,000 Indigenous people were doing prison time for offences related to unlicensed driving.

In rural communities, Indigenous people are suspended from driving at a much higher rate than the rest of the population. For many, it’s the first step towards jail. Now, in NSW, mandatory sentencing is likely to have a further dramatic impact on prison numbers.

Eamonn  – Traffic Laws

Eamonn Coe Masters first came to the attention of police when he was young for driving without a licence.  Then when he was 16 he went for his licence test and started driving around and racing cars. He was charged under his Father’s surname (Masters) but the name on his birth certificate was different. Eamonn did not know as he could not read. The police knew him as Eamonn Coe despite his licence saying Eamonn Masters.  He was disqualified from driving.

Years later, believing his disqualification was served, he approached the Roads and Traffic Authority and was given the all clear and passed his test.  Later, the police pulled him over alleging he did not have a licence. Eamonn showed his licence from the RTA to the police and the Police refused to believe him stating he was still disqualified under another name. He was further charged with a driving offence and under the mandatory sentencing laws, he was sent to jail and disqualified from driving until 2022.

Ms Dhu – fine default imprisonment

Ms Dhu was arrested by police to be imprisoned for four days in August 2014 for unpaid fines totally $3622. Ms Dhu died two days into her incarceration at Western Australia’s South Hedland Police Station.

In 2013, 1358 people were imprisoned for fine default and for no other reason. 16 percent of Indigenous people who entered prison that year were there only for fine default.

View the PDF here