Media release - Australian Bar Association Deeply Concerned About Judicial Immunity

31 August 2023

The Australian Bar Association (ABA) is concerned about implications for judicial immunity following the decision in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020.

Peter Dunning KC, President of the ABA, says the decision in Stradford “raises potentially significant issues for the effective conduct of the work of judges of Division 2 of the Federal Circuit and Family Court, or indeed any other inferior court in Australia with a comparable legislative scheme governing judicial immunity.

Without in any way commenting on the content of the judgment itself, or diminishing the impact of the events on the Applicant, the issue raised concerning judicial immunity is one of such magnitude that it should be the subject of urgent legislative consideration, regardless of whether the judgement is appealed.”

Peter Dunning continued, “Judicial immunity is an important institutional requirement in facilitating the fearless administration of justice by judges across Australia.  When occasions arise, such as the present, that in a significant way impact the understanding of its boundaries, it is always appropriate to consider whether the immunity remains appropriately calibrated to securing that fearless independence.”

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FCFCoA - Updates to the Magellan List definition and criteria

25 August 2023

The Federal Circuit and Family Court of Australia (Division 1) (FCFCOA (Division 1)) and the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Division 2)) (together, the Courts) have implemented an updated Magellan List definition and criteria, upon recommendation by the Courts’ Family Violence Committee. These updates reflect the Courts’ ongoing commitment to responding appropriately to risk in family law proceedings.

This builds upon a number of initiatives the Courts’ have launched this week, including the Updated Family Violence Plan and Family Violence Best Practice Principles, and three new short films on the following topics:

• What is family violence?

• How the voice of the child is heard?

• How the Court process works for parenting cases

The updated Family Violence Plan and Family Violence Best Practice Principles are available on the Courts’ website via the following links:

• Family Violence Plan

• Family Violence Best Practice Principles

The Magellan List is a long-standing specialist list designed to ensure that proceedings involving the most vulnerable children and requiring the most resources are appropriately triaged, and dealt with as effectively and efficiently as possible.

From 21 August 2023, the identification of a Magellan matter and criteria for transfer in to the Magellan List will require notifications or allegations of the following (generally within the preceding 12-month period):

(a) sexual abuse of a child; and/or

(b) serious physical abuse of a child; and/or

(c) fresh allegations of historical sexual or physical abuse of a child which had never previously been disclosed; and/or

(d) activity by a party to the proceedings or a relevant adult (such as a step parent or relative) which:

     i. poses a risk of direct or indirect sexual abuse to the child, including activity directed towards children who are the subject of the proceedings or any other child/ren; and/or

     ii. involves an allegation, charge or conviction for offences related to the production, possession and distribution of Child Exploitation Material (CEM), whether or not the images relate to children the subject of the proceedings; and/or

(e) serious or escalating physical abuse of a subject child of the proceedings.

The Magellan List provides a tightly administered case-management pathway for proceedings involving sexual abuse and/or serious physical abuse of a child, which is supported by a dedicated multi-disciplinary team of Judges, Registrars and Court Child Experts. The Magellan List and updated definition will operate in all Federal Circuit and Family Court of Australia registries nationally from 21 August 2023. Information about the Magellan List can be found on the Federal Circuit and Family Court of Australia website here: Magellan List | Federal Circuit and Family Court of Australia.

Media release - New Appointments to the High Court of Australia

23 August 2023

The Australian Bar Association welcomes the appointment of the Hon. Stephen Gageler AC as the next Chief Justice of the High Court of Australia, and the Hon. Justice Robert Beech-Jones as a Justice of the High Court of Australia.

“Each of these is a fine appointment to this distinguished court,” says Peter Dunning KC, President of the Australian Bar Association. “Chief Justice-elect Gageler is a lawyer of exceptional skill, possessing an unsurpassed knowledge and experience in constitutional law, combined with, in like measure, the qualities of fairness, principle, decency and courtesy, that uniquely equip him for the discharge of our highest judicial office.

Justice Beech-Jones brings to the High Court of Australia a wealth of legal acumen and vast experience in, and an appreciation of, the importance to the maintenance and development of our legal system of the focus of courts being the quietening of controversies between individual litigants.

On behalf of the Bar nationally, I wish each of their Honours many happy years in their roles on the High Court of Australia.

The appointments of a Chief Justice to Australia's apex court, and of a new Justice to that court, is an occasion of great significance, not only to the Bar, but to Australians generally.

The High Court of Australia, in particular, plays a fundamental role as part of the third branch of our system of government. It superintends the distribution of governmental powers that our constitutional arrangements have struck, and importantly, the boundaries of legislative and executive power, on the one hand, to protect the citizen from the State, and on the other hand, recognising and vindicating the vitality of the democratic character of the other two branches of government acting within their limits.”

Justice Gageler will become the fourteenth Chief Justice of the High Court of Australia when the Hon. Chief Justice Susan Kiefel AC retires in November. His Honour's new role will commence on 6 November 2023.

Previously a Commonwealth Solicitor-General, his Honour has served on the High Court of Australia since 2012.

Justice Beech-Jones will fill the vacancy created by the retirement of Chief Justice Kiefel and the appointment of Justice Gageler as Chief Justice. His Honour has served on the Supreme Court of New South Wales since 2012, and is presently the Chief Judge at Common Law in that Court.

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Australian Law Reform Commission inquiry into justice responses to sexual violence

01 August 2023

The Australian Government is seeking nominations for suitably qualified candidates for appointment as Commissioners of the Australian Law Reform Commission. 

Two part-time Commissioners will be appointed to conduct the recently announced national inquiry into justice responses to sexual violence. One Commissioner will be appointed to take a primary role in leading the inquiry, with a second Commissioner appointed to occupy a supporting role. 

In addition to considering legal frameworks relating to sexual violence, the ALRC will inquire into and provide recommendations for broad systemic reform initiatives to improve victim and survivor experiences throughout the justice process.

To be eligible for appointment to the ALRC, candidates must be in one of the following categories:

• the holder of judicial office
• a legal practitioner of the High Court, or of the Supreme Court of a State or Territory (and have been for at least five years)
• a graduate in law of a university, and have experience as a member of the academic staff of a tertiary educational institution, or
• suitable for appointment because of special qualifications, training or experience.

Information for applicants

Information about the position, including remuneration, eligibility and selection criteria, and details on how to apply, is available on the Attorney-General’s Department website Careers page

The appointment is on a part-time basis for the duration of the inquiry, which is expected to take 12 months, or until the last day of the inquiry, whichever occurs first. Candidates who are based outside Melbourne and Brisbane are welcome to apply. Further information about the ALRC is available at www.alrc.gov.au.

Expressions of interest close at 11.59pm AEST on Sunday 6 August 2023.

Enquiries can be directed to: Sexual.Violence.Responses@ag.gov.au.

Expressions of Interest for Appointments to the Federal Circuit and Family Court of Australia

21 July 2023

The Attorney-General of Australia, the Hon Mark Dreyfus KC MP, seeks expressions of interest from suitably qualified persons for appointment to the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Divisions 1 and 2). 

To be eligible for appointment as a judge of a federal court, a person must have been enrolled as a legal practitioner of the High Court or a Supreme Court of a state or territory for at least five years. 

To be eligible for appointment as a FCFCOA (Division 1) judge a person must also by reason of knowledge, skills, experience and aptitude be a person suitable to deal with matters of family law, including matters involving family violence. This requirement also applies to appointments to the FCFCOA (Division 2) if the kind of matters that may be expected to come before that judge are family law matters. Judges are appointed by the Governor-General for a term expiring upon the age of 70.

Information about the position, including remuneration, eligibility and selection criteria, and details on how to apply, is available on the Attorney-General’s Department website.

The process for appointments to fill vacancies in the Federal Court and the FCFCOA will run as needed according to arising vacancies.

While nominations are sought across all Registries, the New South Wales, Victorian and South Australian Registries of the Federal Court, and the Darwin and Melbourne Registries of the FCFCOA (Division 2) are of particular need at this time.

Further vacancies are also expected to arise in the New South Wales, Victorian and South Australian Registries of the Federal Court, and Sydney and Parramatta Registries of the FCFCOA (Division 1) and the Brisbane and Sydney Registries of the FCFCOA (Division 2).

Future judicial appointments may be made from the expressions of interest received in this round. The closing date is Friday 4 August 2023. 

Further enquiries can be directed to JudicialAppointments@ag.gov.au.

The Ludlows, Tarrago, Numina Bar Jacket Project

03 July 2023

As Australia enters NAIDOC Week 2023, the ABA is delighted to support the Ludlows, Tarrago, Numina Bar Jacket Project. 

 

Avelina Tarragó, a proud Wangkamahdla woman from central-west Queensland and member of the Bar Association of Queensland, wanted “to be shrouded in culture during formal legal ceremony and to include Culture and Cultural

acknowledgement in formal legal settings”.

 

Ludlows Legal Regalia Brisbane manager Pia Bardine, an active supporter of First Nations culture, was keen to explore the possibility of this concept – the first of its kind worldwide in formal Legal Regalia. Together Avelina and Pia sought to produce custom fabric for use as lining in formal Court Uniform. 

 

 

The Artist

 

Louise Numina Napananka is one of the celebrated Numina sisters, whose bold, confident, and colourful paintings are enjoyed in homes throughout Australia and all over the world. Her sisters are Sharon, Selina, Caroline, Jacinta and Lanita – and each highly regarded Aboriginal Artists in their own right.

 

Louise, her sisters and two brothers, are the children of Barbara Pananka Price and the late Douglas Petyarre, and it was two of Douglas’ sisters – the internationally-renowned Aboriginal Artists Gloria and Kathleen Petyarre – who taught their nieces to paint the Bush Medicine Leaf ceremony (Aunty Gloria) and Thorny Lizard Dreaming (Aunty Kathleen).

 

The Numina Sisters are also the great nieces of Emily Kngwarreye and Kudditji Kngwarreye, who along with Minnie Pwerle and Ada Bird Petyarre, are the most internationally acclaimed artists of the Aboriginal Art Movement of the Utopia Aboriginal Lands of the Eastern Desert that emerged in the 1970s.

 

Louise’s paintings have been widely exhibited throughout Australia, and in August 2017, couture designer Pia du Pradal launched a range of ‘resort wear’ featuring Louise’s Bush Medicine Leaf design at the Mercedes Benz Fashion Week in Brisbane.

 

She has also enjoyed ‘going viral’ on social media – registering literally millions of views of the hypnotic videos of her creating her stunning ‘Bush Medicine Leaves’ paintings. While Louise makes the painting of the bush medicine leaves look effortless, it is her talent, confidence and joy in bringing the story to life that inspires her to “keep our culture strong”.

 

The Art

 

The “Water Soakage” motif was selected for its inherent significance in Aboriginal and First Nations Culture, as well as the personal significance to Avelina. Water is one of the necessary conditions for all forms of life, it is important to Indigenous and non-Indigenous people alike for environmental, economic and cultural purposes.

 

In terms of Aboriginal culture “Water is essential to Aboriginal culture and lore both in life and spiritual practice, cannot be separated from other elements and exists in all parts of life and culture , water is a shared essential resource for life , there is a shared essential need for access . Water is a community resource and cannot be just for one person or individual”.

 

Prints and original paintings are available to purchase via Ludlows Brisbane and Raintreeart.

 

The Fundraising Strategy

 

Ludlows intends to raise funds to assist First Nations legal practitioners in Australia with the cost required when coming to the Bar, including Robes and Legal Regalia in general.

 

$165 from each sale of the First Nations Lining ($200 per Jacket/Vest) will be distributed from Ludlows quarterly to three existing trusts supporting Aboriginal and Torres Strait Islands Barristers, namely the Indigenous Barristers’ Trust (Vic), the Indigenous Barristers’ Trust – The Mum Shirl Fund (NSW) and the Mullenjaiwakka Trust (Qld).

 

A portion of the sales from the artwork prints and paintings will be donated to this project.

 

Click here for more information.

Speech at the Ceremonial Sitting of the Full Court of the Federal Court of Australia to welcome the Hon. Justice Emilios Kyrou AO

28 June 2023

CEREMONIAL SITTING OF THE FULL COURT

TO WELCOME THE HONOURABLE THE HON. JUSTICE EMILIOS KYROU AO

 

Speech by Peter Dunning KC, President of the Australian Bar Association

 

Chief Justice Mortimer, Justice Gordon, Chief Justice Alstergren, Judges of the Federal Court, retired Judges, distinguished guests, but most importantly, Justice Kyrou. It is my privilege and pleasure, on behalf of the Bar nationally, to offer our congratulations and welcome to your Honour to this important national Court, and as President of the Australian Administrative Appeals Tribunal. It is a well-deserved appointment that has understandably been met with wide acclaim.

By the time your Honour was ten, you had arrived in Australia speaking little English. By the time your Honour was twenty, you were well on your way to the esteemed career of which today is just another distinguished chapter. Your Honour’s success, and those things that the Commonwealth Attorney has spoken of your character, are a testament to the value of hard work and the benefit of the support of those around you to see you succeed in the way that your Honour did.

Justice Kyrou, it is always a pleasure when I get to address in respect of somebody who came to the Court as a solicitor, rather than from the Bar. I realise that is some long time ago for your Honour now, but there is a special relationship that exists between solicitors and barristers, and it is appropriate that somebody in my position acknowledge on a day like today the grand contribution solicitors appointed to this Court and other courts have made to the jurisprudence in Australia, and the balance and the insight they give to the disposition of legal disputes.

Can I turn, then, to the other task that arises today, and that is that your Honour will become President of the Administrative Appeals Tribunal in the short term, and the successor tribunal to it. It is, I might respectfully suggest, the mark, indeed, the emblem, of a civil society that a citizen can, in significant respects, take a decision of the government to an independent tribunal and have it tested. The transparency that comes from that process, and the confidence in government decision-making, cannot be understated.

In that regard, it is appropriate that I recognise on behalf of the Bar nationally the First Nations people on whose land we meet, and who have, since time immemorial, been the custodians of this land, as an exemplar of those people in our society who do need the protection of institutions such as the AAT for their proper recognition and advancement.

Your Honour is well-suited to the task which you have been given by the government. Your Honour spent a decade and a half on the Supreme Court of Victoria, including in notable matters regarding administrative law. Your Honour brings intellect, decency, compassion and humility to the task, all hallmarks of great judicial accomplishment.

In your new role in the tribunal that will replace the Administrative Appeals Tribunal, I can assure you the Bar nationally will support your Honour in your endeavours as you give effect to the government’s mandate to change the manner in which the review of administrative decisions occurs in this country.

Your Honour, we also recognise your arrival at this large and important national Court as a Justice of this Court. One does not arrive at a day like today with the accomplishments that your Honour has received, not only today but in the years in the past, without the love and the support of those around you. That is reflected in your Honour’s own life. Your wife, Peris; your children John, Stephen, William and Catherine; and your grandchildren, Luke and Demi, should have justifiable pride in your Honour’s achievement today and your Honour’s many achievements in the past.

The Bar is confident that your Honour will discharge your role with distinction, and is here to assist in whatever way it can. I wish you many happy years in your position.

May it please the Court.

 

28 June 2023

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Media Release - On the appointment of the Hon. Justice Bromberg to the ALRC

23 June 2023

The Australian Bar Association welcomes the appointment of and congratulates the Hon. Justice Mordecai (Mordy) Bromberg on his appointment as President of the Australian Law Reform Commission (ALRC).

Justice Mordy Bromberg is a notable Australian with a long held and deep commitment to the development of the law in Australia.

President of the Australian Bar Association Peter Dunning KC said, “From the ALRC’s distinguished first President, the Hon. Michael Kirby AC CMG, to its distinguished most recent President the Hon. Justice Sarah Derrington AM, each President has brought to the role her or his unique legal experience and perspective on the ways in which the law can be meaningfully developed. The ALRC is a better institution for that.

It is important that the President of the ALRC is somebody committed to exploring the ways in which our legal system can be improved, and its boundaries. Justice Mordy Bromberg is well equipped for that task.

Justice Mordy Bromberg brings the attributes of decency, experience on the Federal Court and a commitment to law reform that will ensure that the ALRC continues its task of provoking discussion not only of what the law is, but what it should be.”

The Australian Bar Association notes the statement made today by Chief Justice Mortimer regarding certain media coverage concerning Justice Bromberg’s appointment. Suffice it is to say in addition to her Honour’s statement, the office is disrespected when the officeholder is.

 

23 June 2023

media@austbar.asn.au

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Media Release - Vale the Hon. D. F. Jackson AM KC

15 May 2023

It is with deep regret I announce to the national Bar that David Jackson AM KC died peacefully this morning in Sydney. David had recently celebrated his 82^nd birthday.

Today is a significant day in the life of the Australian Bar, marking as it does the passing of a pre-eminent silk of nearly half a century, and the finest constitutional and High Court barrister of a generation, indeed arguably since Federation.

David was an extraordinary advocate. The many who had the privilege of working directly with, or against, him are better judges and barristers for it. The many more who did not have the occasion of dealing directly with David will nonetheless have had their professional lives touched for the better because of the impact of his advocacy across the gamut of legal controversies before courts in their constitutional or appellate jurisdictions.

David leaves an enduring legacy on the development of the law in Australia and the craft of barrister by his lived example that the finest advocacy is the product of skill, industry, propriety and courtesy in equal measure.

David was encouraging to barristers young and old, a loyal friend to many, extraordinarily generous and had a fine sense of humour.

David lived as he worked. He was a loving and devoted husband to Monica, his wife of more than fifty years, father to their three daughters, Catherine, Dominique and Louise, and grandfather to their four grandchildren. On behalf of the Australian Bar Association, I express my deepest sympathy to them on this sad day.

David was an unsurpassed exemplar of a barrister, an inspiration to all of us, and we salute his service today. May he rest in peace.

Peter Dunning KC

President of the Australian Bar

15 May 2023

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Vale the Hon. D. F. Jackson AM KC

15 May 2023

It is with deep regret I announce to the national Bar that David Jackson AM KC died peacefully this morning in Sydney. David had recently celebrated his 82^nd birthday.

Today is a significant day in the life of the Australian Bar, marking as it does the passing of a pre-eminent silk of nearly half a century, and the finest constitutional and High Court barrister of a generation, indeed arguably since Federation.

David was an extraordinary advocate. The many who had the privilege of working directly with, or against, him are better judges and barristers for it. The many more who did not have the occasion of dealing directly with David will nonetheless have had their professional lives touched for the better because of the impact of his advocacy across the gamut of legal controversies before courts in their constitutional or appellate jurisdictions.

David leaves an enduring legacy on the development of the law in Australia and the craft of barrister by his lived example that the finest advocacy is the product of skill, industry, propriety and courtesy in equal measure.

David was encouraging to barristers young and old, a loyal friend to many, extraordinarily generous and had a fine sense of humour.

David lived as he worked. He was a loving and devoted husband to Monica, his wife of more than fifty years, father to their three daughters, Catherine, Dominique and Louise, and grandfather to their four grandchildren. On behalf of the Australian Bar Association, I express my deepest sympathy to them on this sad day.

David was an unsurpassed exemplar of a barrister, an inspiration to all of us, and we salute his service today. May he rest in peace.

Peter Dunning KC

President of the Australian Bar

15 May 2023

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Speech at the Ceremonial Sitting of the Full Court of the Federal Court of Australia to welcome Chief Justice Mortimer

11 May 2023

CEREMONIAL SITTING OF THE FULL COURT

TO WELCOME THE HONOURABLE CHIEF JUSTICE MORTIMER

 

Speech by Peter Dunning KC, President of the Australian Bar Association

May it please the Court. It is my privilege and pleasure in equal measure to extend a congratulations on behalf of Barristers throughout Australia on your appointment today, Chief Justice Mortimer. Chief Justice, Justices of the Federal Court, Justices of the High Court, Chief Justices, distinguished guests, all.

Today is an important day, indeed, a historic day, in the life of this large national Court, which is fundamental not only to the third arm of government but because of the important place it has in the lives of so many Australians across its ranging jurisdiction. We gather here today, though, to recognise in one exceptional public service to the judiciary as a Judge of this Court. Chief Justice Mortimer, your Honour brings to this Court outstanding academic achievement, an outstanding career at the Bar and an outstanding decade of service as a Judge to this Court. 

It is, as the Commonwealth Attorney has noted, a notable feature that your Honour is the first female Chief Justice to this Court, following in the footsteps of the late Sir Nigel Bowen; the Honourable Michael Black, who is here today; the Honourable Pat Keane; and the Honourable James Allsop. But if we may respectfully suggest, what is genuinely remarkable about that is not that your Honour is a female. Your distinguished academic performance, your exceptional career at the Bar, your exceptional career on the Court explains your Honour’s appointment, but it’s reflective of the fact that this Court now has more than a third of its members as females and is heading towards the balance, diversity in all matters to which we all strive. 

It is customary on days like today to speak of some of the cases that a Judge has been involved in. Can I pick out two. Your Honour was in the Full Court of this Court in the decision in Timber Creek, a case that was most important to First Nations People, and the case was, ultimately, taken and approved in the High Court.

Your Honour sat at first instance in a number of significant native title cases, including Dewal v Western Australian in relation to the fact that mining leases did not extinguish native title, again, a matter that has played an important role in the progress towards unity in our community.

And finally, your Honour was a trial Judge in what we all called Palm Island. Indeed, I had a brief cameo appearance before your Honour in Palm Island. Those cases are all exemplars of the fact that your Honour brought your powerful intellect, your sense of humanity and your personal decency to the disposition of the dispute before you to show that fidelity of the principle and the attainment of Justice are true companions.

I was given an injunction last week both as to the length of this speech and its content. 

Mortimer CJ: You were. 

Mr Dunning: Barristers are, of course, notoriously poor with both. I trust that I will not trespass on the former and will not take too great a liberty in what I’m about to say in relation to the latter.

Chief Justice Mortimer, it is a singular honour and privilege and distinction to be chosen as first amongst equals in such a distinguished Court. Your Honour should be rightly proud of the effort that has brought you to today. Nobody, if we may respectfully suggest, gets to a day like today without the love and the support of family and friends, and your family and friends should be rightly proud of where your Honour sits today. Indeed, your Honour’s children’s own accomplishments and the diversity of them speak to the breadth of your Honour’s interests in life. 

Chief Justice, on behalf of the barristers of Australia, can we again thank you for agreeing to accept this service, acknowledge the great contribution you have made to the life of this Court, and in particular in the three exemplars they gave of your Honour’s performance in the Court, they serve to recognise the important role this Court plays in bringing us to peace with our First Nations peoples. It is right that I acknowledge First Nations Peoples throughout Australia on behalf of Barristers throughout Australia and hope that the references to the cases your Honour has been in are a reminder to all of us of the effort each and every one of us must take to bring such peace.

Finally, Chief Justice, may I wish you many happy years as Chief Justice of the Federal Court. May it please the Court.

17 April 2023

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Speech at the Ceremonial Sitting of the Full Court of the Federal Circuit and Family Court of Australia (Division 2) to Welcome the Hon. Judge McArdle

11 May 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

CEREMONIAL SITTING OF THE FULL COURT TO WELCOME

THE HONOURABLE JUDGE McARDLE

 

Speech by Peter Dunning KC, President of the Australian Bar Association

 

May it please the Court. Judge McArdle, it is my pleasure and privilege, in equal measure, to speak on behalf of the barristers of our Commonwealth to offer our congratulations today on your well-deserved appointment to this Court. Your academic prowess has already been essayed and I will not repeat it, but you bring to this Court a measure of learning and experience which is invaluable for what it needs to do. Your Honour has had a distinguished career at Legal Aid, and in particular, in those most vexed of cases concerning children.

After that distinguished career, as we’ve heard, you came to the Bar and were popular among your colleagues, highly regarded for your skill, your acumen, your decency and your kindness. One might think attributes, Chief Justice, that you will find more than handy in the discharge of judicial office in this Court.

In all that time, you found time to contribute significantly to the profession and its associations, for which, as a Bar, we are most grateful. By clients, solicitors and barristers alike, your Honour carved out a special area of practice in parenting matters. It is an important role and one that touches the lives of many Australians at their most vulnerable. The contribution that people like your Honour make to that important task ought not be underestimated, and ought be acknowledged on a day like this. In that sense, today represents simply a profession of decades of public service on behalf of your Honour, of which the people of Australia have been well served and will continue to be well served.

But your Honour has a non-work side. We have already heard that your Honour is a great lover of fine food and fine wine. Your Honour likes travelling, and I am reliably informed your Honour is something of an adroit traveller because COVID brought all of its complications for all of us. Given your Honour worked in Brisbane and lived in northern New South Wales, it brought more than its fair share to your Honour; yet, I am told, together with all of those attributes I have just mentioned, together with some adroit negotiating skill, your Honour was able to cross the Queensland/New South Wales border during COVID times with a particular skill. Something that, no doubt, will come in handy in navigating your way through the Court.

Your Honour, as we have heard, has a love of music and, I am reliably informed again, is a fine singer. But your Honour’s talents don’t, I’m told, stop at singing. Your Honour enjoys a touch of pantomime and is still favourably recalled as Cinderella, Queen of the Desert. In fact, I understand your Honour rejoices in the nickname ‘Cinderella’ amongst your closest colleagues. Now, I am not sure if the Chief Justice can offer you similar pantomimes amongst your new colleagues, but it is, perhaps, something to think of.

Today is a day of justifiable pride, Judge McArdle, for you and for your family and friends. It represents a lifetime of hard work and diligence, and the undoubted respect and regard of your colleagues.

Not having ever crossed paths with your Honour professionally, I had occasion to make inquiries for the purpose of today’s speech. I have given many such speeches. Rarely have I found a new appointee who has been greeted by such universal warmth when I have telephoned around.

On behalf of the barristers of Australia, and particularly those of Queensland, we salute your appointment and wish you many happy years as a judge of this Court.

May it please the Court.

 

27 February 2023

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The Australian Bar Association Welcomes the Appointment of the Next Chief Justice of the Federal Court of Australia

31 March 2023

The Australian Bar Association welcomes the appointment of Justice Debra Mortimer as Chief Justice of the Federal Court of Australia.

“As Chief Justice, Justice Mortimer will bring a wealth of experience from her time at the Federal Court and her significant career at the Bar,” said Peter Dunning KC, President of the ABA.

“Early in her career, her Honour served as associate to Sir Gerald Brennan of the High Court. Her Honour is a former member of the Victorian Bar, and acted in significant immigration and environmental matters before being appointed to the Federal Court in 2013. For her work in public interest law, her Honour was awarded the 2011 Law Council of Australia President's Medal, the Victorian Bar's Pro Bono Perpetual Trophy and the Australian Human Rights Commission Law Award. Her Honour will lead the Federal Court with distinction.”

The appointment will be effective from Friday 7 April 2023. Details of the welcome ceremony are yet to be released.

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Speech at the Ceremonial Sitting of the Full Court of the Federal Circuit and Family Court of Australia (Division 1) to Welcome the Hon. Justice Curran

24 March 2023

SPEECH BY PETER DUNNING KC AT THE CEREMONIAL SITTING OF THE FULL COURT OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) TO WELCOME THE HONOURABLE JUDGE GOODCHILD AND THE HONOURABLE JUSTICE CURRAN

 

May it please the Court. Chief Justice, Deputy Chief Justice, Justices of the Federal Circuit and Family Court, the Attorney-General for the Commonwealth, Ms Simpson, Ms Ball, and can I particularly notice those members of the ACT Judiciary with us today — Chief Justice Baker, Chief Coroner Archer, Special Magistrate Hopkins and Chief Magistrate Walker, who come today to share this very special day.

Justice Curran, it is my privilege and pleasure in equal measure to get to speak today on behalf of not just the ACT Bar, but barristers Australia-wide on a day when we are justifiably proud that one of our numbers has been asked to join this Court, and we know will do such an exceptional job.

Your Honour’s act in taking the appointment is one of great public service that ought be publicly recognised. This Court is a Court that touches the lives of many Australians. Indeed, for many of the litigants in this Court, their only experience in litigation will be in it, and it is apt to make a lasting impression in circumstances of necessary angst and difficulty. It calls for special skills, not just as a lawyer but as a human, to fulfil that task, and your Honour has them in spades.

Your Honour was appointed a solicitor in 1993, as we have heard, and I will leave that to Ms Simpson and Ms Ball to discuss, but in 2012, your Honour had the prescience to join the Bar. You have practised in the Act and in Queensland and, indeed, been a Registrar of this Court and the Federal Magistrates Court. But it is your time at the Bar that I would particularly wish to emphasise today.

Your Honour became a giant of the ACT Bar, and you became that because of your skill, your acumen, your decency and your compassion towards togethers. Your Honour became President of the Australian Capital Territory Bar Association, which was where I first had the good fortune to meet your Honour, and indeed, you were its first female President, as we have already heard.

Like the Chief Justice, your Honour has served the Australian Bar Association with distinction as well. It would be remiss of me not to note the calm head and decency your Honour brought to your presidency during a time of particular difficulty in the Australian Capital Territory, and you did barristers Australia-wide proud in doing so.

Your Honour is described, and rightly so, as in every sense a leader of women lawyers in the Australian Capital Territory and more generally. Your Honour has been a great mentor to young women coming through the Bar, something that remains a challenge that we seek ever to improve. Beyond that, your Honour has been just a wonderful mentor to young barristers coming through.

Your Honour is described as the go-to mediator — or, at least, was described as the go-to mediator in the Australian Capital Territory, and all of those qualities I spoke of at the outset were the reason your Honour was such a skilled mediator. Your Honour developed, rightly, a national recognition as a mediator in the historical sex abuse mediation sphere. It is a particularly difficult and fraught one, and your Honour’s empathy, which was authentic and reassuring, I am told was nothing short of exceptional in that special area of practice.

As the President of the ACT Bar, you were described to me as having infectious enthusiasm, Chief Justice, something that will no doubt transition to this Court to great advantage. What is this court’s and the country’s great gain has, of course, been the great loss to the Australian Capital Territory Bar. If, Chief Justice, pride remains a sin, I am reliably informed there has been a lot of sinning in the national capital. Your colleagues are justifiably proud, Justice Curran, of your appointment today.

Nobody comes to an appointment today without the love and the support of their family. The Bar is a challenging occupation; it is time consuming; it is demanding on many levels. Your Honour is lucky to have been blessed with a beautiful family, who are here today and are justifiably proud of your Honour’s well-earned achievement. Days like today are inevitably bittersweet, and particularly today. For your children, Kefi, Kebs, Seni and Loko, today is a day of understandable pride, as it is for your mother, Janet. It’s a bitter day in the sense that your late husband is not here today, but everybody I have spoken to has said that today would have been one of enormous pride to him, and rightly so.

Justice Curran, on behalf of the barristers of Australia, may we offer our heartfelt congratulations on this very fine appointment, and wish you many happy years as a Justice of this Court. May it please the Court.

 

24 March 2023

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Speech at the Ceremonial Sitting of the Full Court of the Federal Circuit and Family Court of Australia to Welcome the Hon. Judge Goodchild and the Hon. Judge Lioumis

16 March 2023

SPEECH BY PETER DUNNING KC AT THE CEREMONIAL SITTING OF THE FULL COURT OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA TO WELCOME THE HONOURABLE JUDGE GOODCHILD AND THE HONOURABLE JUDGE LIOUMIS

 

Chief Justice, Deputy Chief Justice, Judges Goodchild and Lioumis, ladies and gentleman, it is my privilege and pleasure, in equal measure, to stand today on behalf of the barristers throughout Australia, and particularly those in New South Wales, to offer our congratulations on these two stellar appointments to this Court.

Each of their Honours brings to the Court a distinguished background as members of our National Bar. Your Honours join a Court which is essential in the life of Australia. It deals with problems and issues that, in the most fundamental way, touch the lives of many of us — many Australians. In particular, each of your Honours brings a distinguished background in dealing with children who find themselves in the dealings of this particular jurisdiction, something that no doubt will serve you well, and them.

Judge Goodchild, if I may turn to you for a moment. Your Honour joined the Bar in 2005, as we have heard, and it is a matter of sadness to your colleagues at Frederick Jordan Chambers your departure from there. But it is everybody’s gain that you have joined this Court. Your Honour had a ranging practice as a barrister. You are, undoubtedly, an expert in family law with a particular interest in children’s matters, but you also had a practice in equity, succession, personal injuries, administrative law, Native Title and defamation. It seems hard to imagine a predicament of this Court will throw to your Honour that you will not have had some history of.

Your Honour was on the board of the Women’s Legal Services of New South Wales, and as I have prepared for this speech, one of the recurring themes has been your Honour’s commitment to the progress of barristers generally, but particularly women, and young women, at the Bar, which is a matter that is important to all of us. Today is an appropriate day to acknowledge the contribution your Honour has made in that regard.

Your Honour, in fact, started your professional life practising in Queensland, and as Mr Murphy, President of the Law Council, will no doubt agree, that is a fine start for anybody who intends to practice in New South Wales.

Your Honour, having had considerable experience in Native Title matters, and in crime, then, when at the Bar, took a particular interest in family law.

I regret to say that I do not have the welter of stories that one likes to have on this occasion. Your Honour’s colleagues were miserly to say the least. The best I got, when I inquired on a salacious story, was that your Honour was good at music and liked it, which hardly passed as salacious. If, indeed, the last judge who managed to be so discreet, I suspect, was the now Justice Jagot of the High Court when another barrister at another lectern said of the speech I am presently giving that her Honour must have been in witness protection to have had so little stories about her.

Your Honour appears to have run witness protection, as far as I can tell. Your Honour is tenacious, level-headed. Your Honour is kind and decent. Your Honour will serve the Court with distinction.

Judge Lioumis, you came to the Bar in 2018 with a generation behind you of distinguished practice as a solicitor, which my friend Mr Murphy will speak to. You come from Waratah Chambers, who, like those in Frederick Jordan Chambers, lament the departure of a much-valued colleague, but join us in the enthusiasm of your Honour’s appointment.

Like Judge Goodchild, you have a long history of public service, having worked at, amongst other places, Legal Aid. You have a long history of looking out for those in the community most in need, and most requiring of somebody who will vigorously assert their legal rights.

Your colleagues are not nearly so discreet, though, as Judge Goodchild’s, as it turns out. They were easy nuts to crack.

I understand, Chief Justice, if you please, that her Honour can walk and chew gum. Not only did your Honour apparently run with considerable aplomb a trial involving parties of Chinese ethnicity, but picked up Mandarin on the way through. On another occasion, when being led by Cummins SC in Newcastle, some less than courteous client on the other side, who was being cross-examined, described you as Cummings SC’s helper. In a Court that, no doubt, does repeat business, you never know, you might see him again. I am told you managed to knock a microphone into your leader’s eye. It can happen. It can happen to anyone. Less frequent is the Court being adjourned as a result of it, and apparently one of your now-colleagues asked a question of Kearney SC, who was on his feet, and your Honour answered sitting at the bar table.

Your Honour brings to this Court a mastery of each jurisdiction and the warmth and affection of all of your colleagues.

Judge Goodchild, Judge Lioumis, for each of you today is a day of justifiable pride, and for that of your family and friends. Nobody arrives at the position each of you have arrived at today without the love and support of those around them, and it is right that we acknowledge those who have been so very important in your lives. It is a delight they can be here, and a delight for them, and tinged with sadness as, inevitably, there are other special people who do not make a day like today.

On behalf of the barristers of Australia, we thank you very much for your agreement to serve this Court, and wish you many happy years as Judges of the Court.

May it please the Court.

 

16 March 2023

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International Women’s Day - “Cracking the Code: Innovation for a Gender Equal Future”

08 March 2023

On this International Women’s Day, the Australian Bar celebrates the achievements of all women barristers and reflects on what the Australian Bar can do to ‘crack the code’.

Australian women barristers have been leaders of the profession serving as Chief Justices, Presidents of intermediate appellate courts, Solicitors-General, Directors of Public Prosecutions, Public Defenders and Presidents of the ABA and local Bar Associations. Women barristers have also contributed to public service as the Governor-General of Australia, Governors of Australian States, and heads of anti-discrimination tribunals. Women barristers have been leaders in the academy and development of the law as Deans of law schools and Chairs of law reform commissions. Women barristers have been elected to parliaments across the country.

The ABA acknowledges the Chief Justice of Australia, the Hon Susan Kiefel AC, who was admitted to the Queensland Bar in 1975 when her Honour was one of only 10 women barristers in Queensland. The ABA thanks Chief Justice Kiefel for her service to the profession, the judiciary and Australia.

While the contribution of Australian women barristers should be celebrated there is more to do. The Australian Bar is yet to crack the code of achieving equality in the numbers of men and women barristers. While the majority of Australian solicitors are now women, the ABA acknowledges this is not the case for the Australian Bar. It is important young women barristers, as well as those women who might be thinking of coming to the Bar, know the Australian Bar seeks to improve the opportunities for women and strives to achieve gender equality. The ABA recognises this requires ongoing action and commitment from the Australian Bar as a whole.

It is my hope all members are able to take some time out of this day to consider the themes of International Women’s Day 2023, which can be found here, and consider how we can all contribute to those themes in our workplace.

Peter Dunning KC

President

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Chief Justice Susan Kiefel given lifetime membership of the Australian Bar Association

06 March 2023

The Australian Bar Association would like to formally congratulate her Honour, Chief Justice Kiefel on being made a lifetime ABA member at the 2023 Silks Bows dinner.

Following a High Court ceremony on Monday 6 February to announce the 2022 silks, a gala dinner was held in the evening, at which Kiefel CJ’s lifetime membership was announced.

This year’s ceremony was the last before her forthcoming retirement at which her Honour will preside.

In nominating her Honour, Mr Dunning said, “I have known the nominee throughout the entire time of her career as an Australian jurist.

“In fact, I have appeared before her Honour in the Supreme Court of Queensland, the Federal Court of Australia and the High Court of Australia.

“Kiefel CJ places considerable emphasis on the collegiality of the profession at every level, from junior barristers to judges at the highest level.

“Her Honour’s leadership in terms of courtesy in the courtroom and exposing the rationale for decision-making of the implied freedom of political communication merit particular attention.

“It would seem appropriate that the ABA mark the pending retirement of a Chief Justice of the High Court at an appropriate occasion.”

The ceremony takes place each year, where those who have been elevated to Senior Counsel or King’s Counsel can take their ‘bow’ before the High Court.

The bow dates back to 1921, with two newly appointed silks (KCs and SCs) announced their appointment to the High Court in Melbourne.

In more recent times it has become an annual event. In its current form, the silks bows ceremony is arranged by the ABA, and has been running since 1982.

Australian Bar Association submission to the Judicial Commission Taskforce

23 February 2023

View the PDF here

Lighthouse Model: Update to the Profession February 2023

20 February 2023

New court process focuses on the safety of children and their families by identifying and addressing issues of family violence and other risks.

Lighthouse risk screening and the Evatt List commenced nationally on 28 November 2022. In the first two months since its expansion the Courts have already:

• Sent over 1700 confidential risk screens;
• Completed over 600 confidential case file reviews and triage interviews; and
• Placed over 130 matters on the Evatt List.

This is an encouraging response by parties and the profession as screening at the start of the case will ensure that the Courts can quickly identify, assess and help families impacted by family violence and other family safety risks. The Courts thank the profession for the early support of this important initiative. With the expansion now well underway, the Courts call upon the profession, and those working in the family law sector, to familiarise themselves with this important family safety initiative and to communicate the process and benefits with their clients.

The purpose of this update is to focus on the key benefits of screening, provide frequently asked questions and answers the Courts have received, and advise where to go for further information, resources and training. The Lighthouse (and importantly, its objectives) received widespread support at a launch held in Sydney late last year. A recording of the launch, and a video compilation of the television media coverage, is available from the Courts’ website.

Benefits of risk screening

By encouraging your client to undertake the confidential Family DOORS Triage questionnaire, practitioners and members of the profession are strengthening their client’s support in navigating the family law system.

By completing the Family DOORS Triage questionnaire, clients are provided:

• An opportunity to self-identify risk;
• Responsiveness to serious risk issues;
• Online safety planning;
• Referrals to legal and social support (where appropriate); and
• Placement on the most suitable case management pathway based on the identified needs and circumstances of their family.

The Family DOORS Triage questionnaire not only assists the Courts but also helps practitioners and members of the profession to enhance their response and understanding of risk factors present. By completing Family DOORS Triage, clients will receive targeted support for their concerns. Importantly for your client, they can be confident that their responses to the risk screen are confidential and inadmissible.

Confidentiality

Part IIA of the Family Law Act 1975 (the Act) prevents the disclosure and admission into evidence, of information that is disclosed through the Courts’ family safety risk screening process, relating to a party to proceedings under the Act. Part 11A of the Act provides that:

• a party cannot be asked to disclose whether or not they undertook risk screening;
• the risk screen responses, classification and referrals arising  from the screening process, cannot be used as evidence in a proceeding; and
• information shared or provided by a party to a triage counsellor in the course of conducting risk screening cannot be disclosed, or used as evidence.

More information on how the risk screen is protected under Part IIA can be found here.

FAQs

Why should clients undertake early risk screening?

The completion of early risk screening greatly assists the Courts to identify risk factors and safety concerns at the earliest point in time. This in turn assists in directing the matter to the most appropriate case management pathway and providing your client with an opportunity to be referred to additional support and resources.

How can family law practitioners help?

At the earliest stage of a matter coming before the Court, you should ensure that you speak to your client about risk screening and the benefits of undertaking the screen. The Courts have a fact sheet for clients about the risk screening process which can be used. There are also translated versions available.

To assist the Court and your client, it is important to ensure that your client's personal contact details are provided when filing an Initiating Application or Response on the Commonwealth Courts Portal. These details are only used for risk screening. Beyond that, the Court will always contact the legal representative that is on record for all other issues.

There is a separate section on the Commonwealth Courts Portal to provide these details for the purposes of risk screening only. Please ensure that you enter these contact details accurately. If you do not enter your client’s details, or enter your own details in their place, you will be contacted by the Lighthouse Team to request your client’s personal contact details for the purpose of the risk screening process via an online form.

Who can complete the screening?

All parties filing an eligible Application or Response for parenting only orders, or parenting and financial orders filed on or after 28 November 2022 in Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong will receive the opportunity to complete the risk screen Family DOORS Triage. The questionnaire must be completed by the client, not their lawyer.

Can the other party access response or contact details?

No. Your client’s answers will not be seen by the Judge, Judicial Registrar, other parties or legal representatives involved in the case. Under ss 10U– 10V of the Family Law Act 1975, answers to the Family DOORS Triage questionnaire are confidential and cannot be used as evidence (inadmissible).

How does the client receive the risk screening questionnaire?

The risk screen is sent via email to your client’s nominated email address within 2 business days of filing an eligible Initiating Application or Response. The email will contain the link to the confidential risk screen and the client’s personal login details. Where there are multiple Applicants and/or Respondents each party will receive a risk screen. Reminders will also be sent via email and SMS as access expires after 10 days.

What happens after a client completes the risk screen?

The risk screen responses will enable the Courts to identify any risks that your client or their child/ren may be experiencing. The Lighthouse Team will confidentially review the risk screen to identify the level of risk which may require further review and risk assessment by Triage Counsellors.

High risk matters may be referred to an Evatt Judicial Registrar for consideration to be placed onto the Evatt List, or such appropriate case management pathway according to the level of risk. Medium and lower risk cases will be considered for a range of case management pathways, including dispute resolution, in accordance with the Central Practice Direction – Family Law Case Management. At no point does a Judicial Officer have access to or view the confidential risk screen.

In all matters, you must ensure that the material filed addresses any risks your client is experiencing to ensure that the matter is directed to the most appropriate case management pathway. You are also reminded of the obligation to inform the Courts of any family violence orders that apply to a party, to a child of the proceeding, or a member of the child’s family.

How can clients screen if they do not have access to technology or need assistance?

Clients who cannot screen online, or who need help from an interpreter, can contact the Lighthouse Team directly. This information is also included in the email inviting clients to complete the risk screen.

Further Information

The Courts have published a series of updates to the profession in advance of the expansion of Lighthouse and have published a recording of the Lighthouse Webinar. Practitioners are encouraged to review these updates as they contain important information about the expansion of Lighthouse and the Evatt List.

Further information can be found on the Courts’ website:

• Practice Directions | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
• Lighthouse | Federal Circuit and Family Court of Australia (fcfcoa.gov.au) including FAQs, fact sheets and detailed information on risk screening
• Evatt List | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

This update is also available online:

https://www.fcfcoa.gov.au/news-and-media-centre/updates-profession/utp-170223

Law Council of Australia and Australian Bar Association extremely concerned over police informants legislation

10 February 2023

The Law Council of Australia (LCA) and Australian Bar Association (ABA) have major concerns over the Human Source Management Bill 2023 introduced into the Victorian Parliament on 7 February 2023.

The deliberate cultivation of a lawyer as a police informant places lawyers in direct conflict with fundamental duties that have been imposed on lawyers for centuries, both organisations emphasised.

Australian Bar Association President Peter Dunning KC said: “An Australian lawyer should never be registered as a human source in relation to information disclosed to them which is the subject of client confidentiality.”

President of the Law Council of Australia, Luke Murphy also expressed serious concerns about key parts of the new legislation.

“Lawyers being used as human sources and allowing them to covertly inform against their clients is contrary to a lawyer’s role as an officer of the court and would violate multiple ethical duties that are owed by a lawyer to their client,” he said.

The Bill aims to implement several recommendations from the Royal Commission into the Management of Police Informants (RCMPI), including introducing a framework for the registration, use and management of human sources by Victoria Police.

While the transparency that the Bill provides for the registration, use and management of human sources is welcomed, both the LCA and ABA state that lawyers should never be used as police informants.

“A lawyer’s duty of strict confidentiality is there to protect the client,” Mr Dunning said.

“It also underpins the institutional integrity of our legal system. The long-established exceptions to confidentiality adequately protect against legitimate concerns.”

 

[ends]

For further information:

Matt Reddin

T: +61 3 9225 6947

media@austbar.asn.au

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Practice Direction No. 1 of 2022 - High Court Rules 2004 Approved Forms

20 December 2022

1.    Commencement

This Practice Direction takes effect in relation to documents filed on or after 1 January 2023.

2.    Approved forms

The Justices of the High Court of Australia approve the forms annexed to this Practice Direction for the purposes of the High Court Rules 2004.

A reference in the High Court Rules 2004 to a form by number is a reference to the form so numbered and approved by this Practice Direction.

6 December 2022

View the PDF here

Statement to members regarding R v Lehrmann

15 December 2022

Because of concerns that have been widely expressed within the bar regarding the continuing public commentary concerning alleged reservations of some investigating police of the charges in R v Lehrmann being pursued at trial, and public statements made by the ACT’s Director of Public Prosecutions concerning the decision not to retry those charges, the Australian Bar Association is prompted to write to members.

The Australian Bar Association reiterates the observations made by Chief Justice McCallum of the barristers who conducted the trial as having “behaved in an exemplary way in accordance with the finest traditions of the Bar”. The performance of all the barristers involved in the trial was a credit to them and our profession.

A high-profile case of this nature is inevitably drawn into the public sphere, and subject to commentary from within, and outside of the legal profession. Some of that commentary is appropriate, some is inappropriate, and too frequently insufficient regard is given to how any legitimate commentary will affect the humans at the centre of the case.  

Inappropriate commentary is a disservice to the universally accepted need to bring to justice more effectively those responsible for acts of sexual violence.

Important institutional safeguards are the reason that it is the decision of police to lay charges, and the decision of prosecutors whether to pursue those charges at a trial. Whether or not it be the case that some investigators had a different view, it was the continuing obligation of the ACT DPP to exercise his discretion whether to pursue the charges laid. Public criticism of the ACT DPP because others allegedly had a different view does not have regard to the importance of the checks and balances and accountability in our criminal justice system that this discretion ensures.

When noting the public statement made by the ACT DPP (both as to its content and manner) as the subject of public criticism, the Australian Bar Association recognises the difficult job performed by DPPs Australia wide. It is not the role of the Australian Bar Association to comment on the conduct of particular advocates, public or private.

The Australian Bar Association wishes to reiterate in the plainest terms that the presumption of innocence in our criminal justice system is absolute. That presumption is not diminished by a decision to retry or not to retry a charge for whatever reason.

Further, on those occasions where a public explanation regarding why a prosecution has taken a certain course is truly necessary, the ordinarily appropriate place for such an explanation by the barrister, whether prosecution or defence counsel, is in court and in the presence of those concerned in the prosecution.

Peter Dunning KC

President, Australian Bar Association

High Court Amendment (Forms and Other Matters) Rules 2022

05 December 2022

The High Court Amendment (Forms and Other Matters) Rules 2022 were registered on the Federal Register of Legislative Instruments on 21 November 2022.

The Amendment Rules update references to the Sovereign in the court forms to reflect the ascension of King Charles III and make provision for the Court to remove the court forms from the High Court Rules 2004 and to prescribe the forms instead by Practice Direction.

The Amendment Rules also implement the 4% increase to the scale of costs recommended by the Joint Costs Advisory Committee in its Fifteenth Report.  The amendments to the scale of costs in Schedule 2 will apply in relation to all work done and services performed by solicitors after 1 January 2023.

• High Court Amendment (Forms and Other Matters) Rules 2022 [PDF]
• Explanatory Statement - Amendments to High Court Rules 2004 [PDF]

Update to the Profession: Amendments to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 commencing 28 November 2022

25 November 2022

FCFCOA Expansion of the Lighthouse model - Update to the Profession #4

24 November 2022

ABA announces New President and Executive

23 November 2022

The Australian Bar Association has announced the election of its executive team for 2022–23.

Peter Dunning KC, former Solicitor-General for Queensland, has been elected President of the Australian Bar Association. Dominic Toomey SC, member of the Council and Executive of the NSW Bar Association and Roisin Annesley KC, former President of the Victorian Bar Association have been elected Vice Presidents, and Andrew Muller former President of the ACT Bar Association has been elected as Treasurer. Ian Robertson SC of the South Australian Bar Association will continue as Chair of the Advocacy Training Council.

Outgoing President Dr Matt Collins AM KC said, “It has been a privilege to lead the ABA over the past twelve months and to meet with so many hardworking barristers around the nation committed to furthering the fair and efficient administration of justice. I wish Peter and his team all the best for the year ahead.”

Incoming President Peter Dunning KC said, “It is a privilege and an honour, which I am humbled by, to have been elected President of the ABA. I wish to express my appreciation on behalf of barristers Australia wide for the deft and skilful leadership of the outgoing President of the ABA, Dr Matt Collins AM KC. Matt provided great leadership and foresight in guiding the bars through the aftermath of the pandemic and return to full time, conventional legal practice.

“In 2023, I look forward to promoting the critical skills and talents of the more than 6,000 barristers Australia wide who, in every state and territory are an essential part of the legal architecture in Australia for the sustenance of the rule of law.

“I intend to build on the work this year of the ABA council in the enhancement of professional standards for barristers, fostering a collegiate, inclusive and diverse national profession and publicly advocating for the importance of an independent judiciary.

“The ABA will have important contributions to make to the national debate around the National Anti-Corruption Commission, and other matters of national concern.”

The non-executive members of the ABA Council for 2022-23 are:

Gaby Bashir SC (President, NSW Bar Association)
Duncan McConnel SC (President, NT Bar Association)
Mark Hoffmann KC (Director, Sth Australian Bar Association)
Brahma Dharmananda SC (President, WA Bar Association)
Phillip Zeeman (President, Tasmanian Bar Association)
Damien O’Brien KC (President, Bar Association of Queensland)
Sam Hay KC (President, Victorian Bar)
Rebecca Curran (President, ACT Bar)

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

Media Enquiries

Email media@austbar.asn.au 

View the PDF here

The National Brief #11

17 November 2022

Click here to read the November issue of the National Brief, the official newsletter of the Australian Bar Association.

FCFCOA Expansion of the Lighthouse model - Update to the Profession #3

16 November 2022

New court reform focuses on the safety of children and their families by identifying and addressing issues of family violence and other risks

The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the Courts) are delighted to provide the third update in the lead up to the commencement on 28 November 2022 of the expansion of the Lighthouse model and the Evatt List. You can also find out more from the previous updates.

The third update focuses on the Evatt List which is the Courts’ specialist list for those matters that are considered to be of the highest risk, with a focus on family violence and other family safety risks. The Evatt List ensures that families are provided with appropriate support to safeguard against family violence and other associated risks. It also ensures cases are managed through the Court process as efficiently and effectively as possible, with a focus on identifying risks and early information gathering.

The Evatt List

Matters are eligible to be placed on the Evatt List where the application to the Courts is for “parenting” orders, or “parenting and financial” orders only and in accordance with Family Law Practice Direction – Evatt List (FAM-EVATT) which will commence on 28 November 2022. It does not include:

• matters where only financial orders are sought
• child support only cases
• child maintenance only cases, or
• contravention applications.

In order to be referred to the Evatt List, at least one of the parties to the proceeding must have:

• completed the online risk screen Family DOORS Triage; and
• been identified as high risk during the triage and risk screening process, including a review by a Triage Counsellor.

It is important for you to note that matters cannot be placed on the Evatt List by way of transfer, order or request. At the earliest stage of a matter coming before the Courts, you should ensure that you speak to your client about risk screening, the benefits of undertaking the screen and the Evatt List.

One of the key objectives of the Evatt List is to ensure that when your client and their children have been identified as being at high risk, they are provided with greater court resources to support them and provide safeguards around risk, while closely managing the matter as it progresses through the Court system. The case management approach focuses on ensuring that critical and in-depth information is gathered and collated from a variety of sources (such as police, child welfare and Court Child Experts) which helps to identify important issues for the first return listing, and throughout the course of the matter. The diagram below outlines the key court events and steps of the Evatt case management pathway.

Hearing Protocol issued | FCFCOA PD COVID-19 Special Measures revoked

10 November 2022

The Chief Justice, the Hon Chief Justice Alstergren AO, has issued the Special Measures Information Notice – Hearing Protocol to replace the Special Measures Information Notice – COVID-19 Hearing Protocol, with effect from Monday, 7 November 2022 in the FCFCOA (Division 1) and FCFCOA (Division 2).  

The SMIN sets out how the Courts will continue to utilise both in-person and electronic hearings, as well as the arrangements for dispute resolution and Court Children’s Service events. 

It also specifies the COVIDSafe measures that continue to apply. Some of the COVIDSafe measures have been relaxed, including removing the restriction on the Courts providing water jugs and disposable cups in courtrooms.

From close of filing, Friday, 4 November 2022, the Chief Justice has revoked the FCFCOA Practice Direction – COVID-19 Special Measures. This document provided for the filing of documents that had not been witnessed, the deferral of fee payments, filing of documents by email, and other COVID-19 measures.

All documents should continue to be filed electronically through the Commonwealth Courts Portal or eLodgment. For documents that cannot be filed electronically through the Commonwealth Courts Portal, they may be lodged for filing by email, by post, or in the registry. 

These changes will be reflected on the website shortly. The Hearing Protocol is live here: FCFCOA Special Measures Information Notice: Hearing protocol | Federal Circuit and Family Court of Australia

The Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection continues to apply.

View the PDF here

FCFCOA Expansion of the Lighthouse model - Update to the Profession #2

10 November 2022

The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the Courts) are delighted to provide a second update in preparation for the commencement of the expanded Lighthouse model and the Evatt list. This update will focus on Lighthouse risk screening, including Family DOORS Triage, what happens when an eligible proceeding is filed and what happens next. You can also find out more in the first Update to the profession: Expansion of the Lighthouse Model.

When an Initiating Application seeking parenting only or parenting/financial orders is filed on or after 28 November 2022, or a corresponding Response is filed, parties will be asked to complete the Courts’ bespoke risk screen, Family DOORS Triage. By encouraging your client to undertake the Family DOORS Triage questionnaire, you are strengthening your client’s support in navigating the family law system. Completing the risk screen at the earliest opportunity will assist the Courts to ensure your client’s matter is directed to the most appropriate case management pathway.

Risk Screening

What is risk screening and Family DOORS Triage?

Risk screening refers to the process taken to identify the likelihood of harm or exposure to a type of harm experienced by a party or their child(ren) in family law proceedings. This process involves completing an online risk screening or questionnaire called the Family DOORS Triage. Children do not participate in the risk screening process, however the risk screen includes questions to identify any concerns or risks in relation to the children.

Family DOORS Triage is an evidence-based universal screening framework developed to assist with detection of risk and support the development of tailored responses. The risk screen considers a range of safety risks that frequently arise in family law proceedings including family violence, mental health issues and drug or alcohol misuse and has been specifically developed for use in the family law system and the Courts.

It is safe to screen. Screening responses and referrals are confidential and inadmissible in court. The other party, legal representatives and the Judge, Senior Judicial Registrar or Judicial Registrar will not see or have access to the answers or referrals and they cannot be used as evidence in court. Sections 10Q—10W of the Family Law Act 1975 (Cth) protect the confidentiality and inadmissibility of this information. For more information see the Lighthouse expansion – General fact sheet.

For further information on risk screening see:

• Information Sheet for Parties
• Information Sheet for Practitioners

Are there any changes to the material needed when filing?

No, no additional documents or special notification is required when filing.

To assist the Court, please ensure that your client’s personal contact details are provided when filing an Initiating Application or Response on the Commonwealth Courts Portal. These details are only used for risk screening. Beyond that, the Court will continue to contact the legal representative on record for all other issues.

There is a separate section on the Commonwealth Courts Portal to provide these details for the purposes or risk screening only. If you do not enter your client’s details, or enter your own details in their place, you will be contacted by the Lighthouse Team to request your client’s personal contact details for the purpose of the risk screening process via an online form.

At the earliest stage of a matter coming before the Court, you should ensure that you speak to your client about risk screening and the benefits of undertaking the screen. The Courts have a fact sheet about the risk screening process which can be used.

Parties are encouraged to refer to the Central Practice Direction – Family Law Case Management and Family Law Practice Direction – Parenting Proceedings for information on the risk screening process which will be updated upon commencement of Lighthouse on 28 November 2022.

How is the risk screen sent?

The Risk screen is sent via email to your client’s nominated email address within 2 days of filing an eligible Initiating Application or Response. The email will contain the link to the risk screen and the client’s personal login details. Where there are multiple Applicants and/or respondents each party will receive a risk screen. Reminders will also be sent via email and SMS as access expires after 10 days.

The online platform is secure and the risk screen can be completed safely and conveniently using a computer, mobile or tablet. The risk screen will take approximately 15 minutes to complete. All of the questions seek a ‘yes’ or ‘no’ reply rather than any specific detail or examples. Should your client or a party require assistance to complete the risk screen they can contact the Lighthouse Team. You can also assist your client to undertake the risk screen; however, it is not appropriate that you complete the risk screen on your client’s behalf.

The risk screen is voluntary to complete; however, your client is encouraged to complete the risk screen at the earliest point in time. Even if it is perceived that there is no or little risk in the matter, completing the risk screen also supports the Courts to identify the most appropriate case management pathway for a matter based on the level of risk identified. It will also assist with the timely progression and resolution of your client’s case.

Triage and Case Management

The risk screen responses will enable the Courts to identity any family safety risks that your client or their child/ren may be experiencing. After risk screening, the Lighthouse Team review the risk screen responses to identify the level of risk; this might include further reviews and risk assessment by Triage Counsellors.

The matter is then considered by a Judicial Registrar to assess the steps needed for future management of the case. This may include placing the matter onto the Evatt List.

High risk matters

Matters where a high level of risk has been indicated will be referred for immediate action with a Triage Counsellor who will provide a tailored, clinical review. The Triage Counsellors are highly qualified professionals, who are either psychologists, social workers or hold a relevant social science degree (such as counselling). They have extensive clinical experience working with children and families across a range of areas, including working with children and families who have experienced family and domestic violence.

All matters which have been identified as high risk will be reviewed by a skilled Triage counsellor to ensure that a tailored, clinical follow-up is conducted which includes a detailed risk assessment, safety and wellbeing plans and service referrals. This will often include being invited to attend an interview with the Triage Counsellor to further explore concerns and risks raised. This entire process is confidential. For further information, see the Triage Counsellor fact sheet.

High risk matters may also be referred to an Evatt Judicial Registrar for consideration to be placed onto the Evatt List, or such other case management pathways most appropriate according to the level of risk, such as the Magellan List or Indigenous List. As the risk screen is confidential and inadmissible under sections 10Q—10W of the family Law Act 1975, the Judicial Registrar does not view the confidential material.

Medium and lower risk matters

Your client will be provided with a copy of their confidential responses and safety and wellbeing plan that has been created based on their responses via email shortly after completion of the risk screen. Medium and lower risk cases will be considered for a range of case management pathways, including dispute resolution, in accordance with the Central Practice Direction – Family Law Case Management.

In all matters, you must ensure that the material filed addresses any risks your client is experiencing to ensure that the matter is directed onto the most appropriate case management pathway.

Data and Observations

Our experience throughout the pilot has shown that the legal profession has been embracing this world leading model. During the pilot, the Courts have observed high rates of screening. Since commencement, 94% of all matters filed have at least one party being invited to complete the risk screen, and 7 out of 10 eligible matters have completed the risk screen.

Feedback and findings have constantly reported that the opportunity to complete the risk screen questions and seek assistance in a confidential space is highly valued with most parties indicating that the primary motivation to complete the risk screening was to ‘raise concerns’.

“[the triage counsellor’s] knowledge and level of experience far outweighed anyone I’ve spoken to… [they] were straightforward and didn’t just tell me the answers I wanted to hear, I saw some light at the end of the tunnel when I spoke to [them].”

Litigant whose screen was high risk.

Since commencement, Triage Counsellors have conducted over 1500 triage interviews, with parties viewing the opportunity to speak with a Triage Counsellor as a key benefit to completing the risk screen. An anonymised case study of an actual high-risk matter is included in this update.

Further information

See the following fact sheets for more information about risk screening and triage counsellors:

• Information Sheet for Parties
• Information Sheet for Practitioners
• Triage Counsellor Fact Sheet

Next week the update will focus on the Evatt List.

Information sessions will be held as follows:

• Wednesday 16 November 2022 4pm ACST / 4.30pm AEST / 5pm ACDT / 5.30pm AEDT
• Tuesday 22 November 2022 3pm ACST / 3.30pm AEST / 4pm ACDT / 4.30pm AEDT

The Courts welcome questions for the presenters in advance and these can be sent to Lighthouse@fcfco.gov.au

The Honourable Justice William Alstergren AO

Chief Justice — Federal Circuit and Family Court of Australia (Division 1)

Chief Judge — Federal Circuit and Family Court of Australia (Division 2)

 

Evatt List — Case Study The legal representative filed on behalf of the Applicant grandparents an initiating application seeking urgent parenting orders in respect of two young children. The Family DOORS Triage questionnaire was completed and risk regarding the Applicants’ and children’s safety were identified. Upon speaking with a Triage Counsellor, additional risk factors of criminality, neglect, family violence and alcohol issues were identified. The matter was placed on the Evatt List within 14 days of filing. As part of the triage process, the Applicants were provided with information and resources to support the subject children through the proceedings and provided referrals to external safety planning agencies. In recognition of the complexities of the matter, additional resourcing and support was provided by the Court, resulting in interim orders being made in relation to the immediate care of the children, the appointment of an Independent Children’s Lawyer, material being requested from local police and child welfare authorities and the provision of a section 62G report. Tailored case management was provided through regular court events and close management of the proceedings to ensure that careful progression through the family law system could occur. By virtue of this approach to case management, interim orders for time with the Respondents were able to be ventilated and tested between the parties, ultimately resulting in the finalisation of the complex matter within 8 months of filing. Feedback from the Applicants was provided to the Court at the conclusion of proceedings noting the positive impact placement on the Evatt List had provided.   By the legal representatives encouraging their clients to complete the Family DOORS Triage questionnaire and following inclusion on the Evatt List, the following positive outcomes were achieved: Enhanced and strengthened support was afforded to their clients The close management of the matter enabled the complexity, issues and needs of the case to be identified very quickly after filing, and the matter to progress promptly and efficiently without delay The legal representatives were able to improve their clients’ experience of the litigation process without increasing the risk of emotional stress or trauma.

View the PDF here

Role of Junior Counsel in Commission proceedings - Notice to Profession

07 November 2022

Justice Ross, President

7 November 2022

[1]  The Fair Work Commission encourages the active participation of junior counsel in cases where two or more counsel are briefed for a person and the Commission has granted the person permission to be represented by a lawyer or paid agent in a Commission conference or hearing.

[2]  The Commission recognizes that junior counsel will often have made a substantial contribution to the preparation of the case, and will best develop as advocates by being given opportunities to present argument and examine and cross-examine some witnesses.

[3]  Where appropriate, the Commission encourages senior counsel to divide submissions between themselves and junior counsel, or ask junior counsel to make submissions in reply, call evidence or cross examine witnesses.

President

View the PDF here

Australian Bar Association Deeply Concerned About Appointment of Kiribati Attorney-General to Position of Acting Chief Justice

02 November 2022

The Australian Bar Association is deeply concerned by the appointment of Attorney-General Tetiro Semilota to the position of Acting Chief Justice of Kiribati. The appointment follows the purported suspension of the nation’s Chief Justice and its three next most senior judges, as well as Justice David Lambourne.

President of the ABA, Dr Matt Collins AM KC, said, “Respect for the rule of law demands that judicial officers be wholly independent from the government of the day and have security of tenure. Neither of these principles has been respected in Kiribati. The public must have confidence that the judiciary can and will determine disputes, including those involving the State, without fear or favour and free from recriminations. The ABA repeats its call on the government of Kiribati to reinstate the suspended judges without delay and cease all interference with the operations of the courts."

[end]

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

media@austbar.asn.au or call Róisín Ryan on 0433 375 940.

View the PDF here

FCFCOA Expansion of the Lighthouse model - Update to the Profession #1

28 October 2022

Following Tuesday’s budget announcement, and FCFCOA media release, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the Courts) have been working on the expansion of the Lighthouse model to 15 family law registries.

The safety of children and families is the highest priority for the Courts and this new process is being implemented to improve outcomes for families in the family law system. As I detailed at the National Family Law Conference in August the Courts’ focus and priority is squarely on family violence, and the Courts have made significant changes to address the seriousness of the issue. Some of those changes and initiatives include:

• The Mandatory filing of a Notice of Child Abuse, Family Violence or Risk in every parenting proceeding
• Comprehensive family violence and trauma informed training for Judges, Registrars and Court Child Experts
• A clear and consistent case management pathway focused on early resolution if safe to do so
• The triage of all cases at the earliest stage
• A digital transformation that enables vulnerable and regional litigants to have access to justice from their homes or safe environments

From 28 November 2022, the Courts will make further changes to continue this focus, expanding the Lighthouse model, including the Evatt List, nationally. Please see below an overview of these changes.

Lighthouse Model Expansion – Identifying risk at the point of filing

The Courts are ensuring that family violence considerations are embedded in all of our practice and procedure. The introduction of the Lighthouse model and risk screening nationally strengthens and assists the Courts’ ability to identify risks early, and respond to those risks. It will improve the safety of litigants who may have experienced family violence and the safety of children who may have experienced associated risks such as child abuse.

The expansion of Lighthouse will mean that risk screening, triage and differentiated case management, including the Evatt List, will be:

• Available in 15 family law registries, increasing from 3 during the pilot period; and
• Offered to any party filing parenting only, and parenting and financial orders.

The Lighthouse Project has been very successfully piloted in Adelaide, Brisbane and Parramatta since December 2020, receiving positive feedback and strong support from the legal profession and key stakeholders. The Lighthouse model builds on the success of the Project and places significant attention on the support, safety and wellbeing of families who enter the family law system. During the Pilot period the following benefits and outcomes to families in the family law system have been observed:

• Responsiveness to serious risk issues through the introduction of Family Counsellor involvement (including safety planning and referrals) and the Evatt List, a specialist list with a focus on family violence and family safety risks;
• Better understanding, through data, of the risks and cases that are in the Courts, leading to targeted resourcing and training;
• Close case management of high risk matters, with tailored, safe and appropriate orders; and
• Enhancement of the courts’ response and understanding of family violence and other risks which affect family law matters.

The family law case management pathway will include additional steps for Initiating Applications filed on or after 28 November 2022, and corresponding Responses, to identify and triage risk as follows:

1. Risk Screening: Parties filing an eligible Initiating Application for Response will be asked to complete a risk screen via a confidential and secure online platform. Family DOORS Triage has been developed specifically for the Courts and can be completed safely and conveniently from any device, computer, mobile phone or tablet.
2. Triage: A dedicated, specialised team made up of highly skilled Judicial Registrars, Triage Counsellors (psychologists or social workers acting in the role of Family Counsellor), and support staff with detailed knowledge in family violence and family safety risks, will assess and direct cases into the most appropriate case management pathway based on the level of risk. The team will triage matters and identify parties who may require additional support and safety measures. This may include online referrals or interviews with those most at risk.
3. Case Management: Those matters with the highest levels of risk will be referred to be placed on the Evatt List, the specialist court list developed and designed to assist those families that have been identified as being at high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention from the very commencement of proceedings. The team, including Judges, Senior Judicial Registrars and Judicial Registrars, has specialised training and is experienced in working with families where high risk safety issues have been identified. Lower risk cases will be considered for a range of case management pathways, including dispute resolution, in accordance with the level of risk and the Central Practice Direction – Family Law Case Management.

At the earliest stage of a matter coming before the Court, parties will be encouraged to undertake the screen. It is imperative that practitioners discuss the importance of risk screening with their clients when providing advice and the benefits that flow from completing a risk screen. Lawyers and parties are also reminded that screening responses, triage interviews and referrals are confidential and inadmissible in court under Part IIA Family Law Act 1975.

For more information on the Lighthouse model and Part IIA Family Law Act 1975 see the Lighthouse expansion fact sheet below.

To support the introduction of these changes, amendments will be made to a number of Practice Directions including:

• Central Practice Direction – Family Law Case Management
  • Core Principle 1 – Risk, paragraph 3.2: description of new approach;
  • Core Principle 4 – Approach to case management and Section 4 – Triage and Assessment: inclusion of new paragraphs under to describe the new approach.
• Family Law Practice Direction – Parenting Proceedings
  • Introduction: new paragraphs after paragraph 1.7 to describe and define eligible proceedings for risk screening process at the point of filing;
  • NEW Section 4 – Family Safety Risk Screening Process and Section 5 – Family Safety Risk Screening Process – Confidentiality and Inadmissibility: describes the process and requirements for risk screening as well as the supporting legislation; and
  • NEW Section 6 – Case Management options: describes the case management of eligible proceedings that have completed the risk screening process.

What to expect upon commencement

From 28 November 2022 in Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong, in both parenting, and parenting and financial cases, parties will observe two changes when commencing or responding to proceedings:

1. When filing via the Commonwealth Courts Portal, parties will be asked to provide their preferred personal email and mobile number to enable the Court to invite parties to screen; and
2. Within 2 business days, parties will receive an email with the personalised link and login details to complete the risk screen.

The Evatt List

Matters are eligible to be placed on the Evatt List where the application to the Courts is for parenting orders, or parenting and financial orders only and at least one party has completed the Family DOORS Triage risk screen. The Evatt List will be supported by a new Practice Direction, Family Law Practice Direction – Evatt List (FAM-EVATT). The Practice Direction will cover the following:

• eligible proceedings;
• criteria for the Evatt List; and
• case management of Evatt List matters.

Further information on the Evatt List can be found in the Lighthouse expansion fact sheet below.

Information Sessions

The Courts will be conducting three live-streamed national webinars in the lead-up to commencement as follows:

• Thursday 10 November 2022 – 11.30am ACST / 12pm AEST / 12.30pm ACDT / 1pm AEDT
• Wednesday 16 November 2022 – 4pm ACST / 4.30pm AEST / 5pm ACDT / 5:30pm AEDT
• Tuesday 22 November 2022 – 3pm ACTST / 3.30pm AEST / 4pm ACDT / 4.30pm AEDT

The webinars will be streamed live on our YouTube channel: https://www.youtube.com/@FCFCOA. The Courts welcome questions for the presenters in advance and these can be sent to Lighthouse@fcfcoa.gov.au.

Over the coming weeks we will be providing detailed updates on the following topics:

• Lighthouse risk screening
• The Evatt List
• Summary of changes and information session opportunities

Information on the current Pilot can be found on the Courts’ website: https://www.fcfcoa.gov.au/fl/fv/lighthouse

These amendments to the case management pathway are a significant occasion for the Courts in their continuing commitment to the protection of vulnerable parties and children in family law proceedings.

The Honourable Justice William Alstergren AO

Chief Justice – Federal Circuit and Family Court of Australia (Division 1)

Chief Judge – Federal Circuit and Family Court of Australia (Division 2)

View the PDF here

Speech at the Swearing-In of the Hon. Jayne Jagot as a Justice of the High Court of Australia

17 October 2022

SPEECH AT THE SWEARING-IN OF THE HON. JAYNE JAGOT AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA, 17 OCTOBER 2022

DR MATT COLLINS AM KC

PRESIDENT, AUSTRALIAN BAR ASSOCIATION

 

May it please the court.

I appear on behalf of the Australian Bar Association and its constituent bodies to congratulate your Honour Justice Jagot on your appointment to this Court.

I acknowledge the traditional owners of the lands on which we meet, the Ngunnawal and Ngambri peoples. I acknowledge their continuing culture, and pay respects to their elders, past and present.

It is a privilege to have been invited to speak today on the occasion of your Honour’s swearing in as the 56^th person to be appointed a Justice of this Court.

Because the High Court of Australia sits at the apex of our justice system, its members have unique and onerous responsibilities.

This Court is an ultimate safeguard of the Australian experiment:

• a nation on a remote and unforgiving, yet fragile and beautiful, continent nurtured for millennia by the peoples of the oldest continuing civilisation on earth;
• a western democracy whose foundations rest on the displacement of that civilisation;
• a federation both blessed and cursed with the sharing of powers and responsibilities between its constituent parts;
• in its modern incarnation, perhaps the most successful multicultural country on earth; and
• despite the relative youth of our foundational document and the institutions it established, a country whose commitment to the rule of law is basal.

One of the many reasons why the Australian community can have confidence that your Honour will discharge your duties as a Justice of this Court with distinction, and provide a bulwark for the Australian experiment, is that your Honour has, throughout your career, reflected deeply upon the intersection of the law and humanity. That deep reflection has found form in the manner in which your Honour has managed and adjudicated the cases you have heard and determined.

Your Honour has observed that fundamental touchstones for the rule of law in a civilised society include the separation of powers; the judiciary alone having authority to declare what the law is; and having laws that apply equally to all people, and equally to individuals and the State. But your Honour has also observed that adherence to the rule of law does not protect us from bad laws; laws that are inconsistent with our shared values.

The law is our social compact; the rules by which we all, governors and the governed, agree to be and are bound. The strength of that compact depends upon the law comporting, so far as possible, with the human values that we agree, at least as an aspiration, ought to define our society. This requires a constant process of re-examination and recalibration by all three arms of government.

But, as your Honour has articulated, the judicial function, even on a court free from the yoke of binding precedent, is not to substitute the judge’s view of what the law should be for the judgment of parliament, or what the outcome should be for the exercise of discretion by the executive or the principled development of the common law. As Justice Brennan put it in Mabo (No 2), not even this Court is free to adopt rules that would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.¹

These are principles your Honour profoundly believes in. You will bring to the awesome responsibility of sitting on our ultimate court not only a remarkably broad mastery of the law and a renowned work ethic and efficiency, but also a nuanced view of the machinery of the compass which points the law towards justice, or our shared values, chief among which is compassion, described by your Honour as “the great moral engine of human action”. Your Honour is in good company: Arthur Schopenhauer described compassion in 1840 as “the basis of morality”; the XIV^th Dalai Lama more recently as “the wish to see others free from suffering”.

Your Honour also comes to this Court with a clear and compelling vision of the judicial function. You are no cog in a system; you understand the role that the law plays in the functioning of society; that it is the optimal means by which we resolve real world problems; and that it cannot achieve that objective unless every litigant, whether a claimant in a native title claim or a multi-national pharmaceutical company in a patent dispute, has equality of access and is accorded respect and a fair hearing.

In speaking to many people for the purpose of preparing these remarks, from judges, to counsel who have appeared before your Honour, to associates and former associates, there was a striking consistency in what I was told.

Your Honour has a calm patience, unfailing respect for others, empathy and modesty. You are a natural leader, and a person of rare well-roundedness, combining intellect, wisdom, judgment, equanimity and good humour. Your judgments are characterised by an elegant simplicity which belies the intellectual effort they incarnate.

People asked about your Honour invariably mention your humility. When you tell a funny story, and you are known to do so, it is more likely than not to be at your own expense.

They also mention your authenticity: your Honour is the same person on the bench as off it; the same person sworn in today as a Justice of the High Court as the law student who was interviewed for a summer clerkship by Julie Ward, now President of the NSW Court of Appeal (good call by the way, Justice Ward).

You are the sort of judge beloved by counsel, because you credit them with winning submissions, even where in truth you were the author of them or had improved them when recording them in your reasons for decision.

I have been told that counsel who appear before your Honour often can assess how they are going from your no-nonsense responses to submissions. ‘Yep’ means ‘I get it and that’s right’; ‘uh-huh’ means ‘I get it but I don’t buy it’; and ‘Nup’ means ‘nup’.

I spoke earlier of the Australian experiment, because your Honour considers yourself to be a lucky beneficiary of it. In truth, your Honour’s appointment says something both meaningful and reassuring about the strengths of our nation. Your Honour has risen to the apex of the Australian judicial system in exactly the way we would hope for it to be possible, through talent and hard work, quietly earning and building respect, without talking yourself up or others down.

The Attorney-General consulted, and is to be thanked for consulting, widely in the period leading up to your Honour’s appointment. Your Honour emerged as the outstanding candidate from that process, and your appointment has been universally welcomed by the profession.

Australia is fortunate that there are people of your Honour’s calibre who are prepared to serve the community by accepting appointment to high judicial office. I have not the slightest doubt that your Honour will discharge your new duties with intelligence, integrity, diligence and compassion.

On behalf of the Australian Bar Association, I wish you a long and satisfying career as a Justice of this Court.

May it please the Court.

 

View the PDF here

Australian Bar Association Congratulates Justice Jagot on her Appointment to the High Court Of Australia

29 September 2022

The Australian Bar Association welcomes today’s announcement that the Hon. Justice Jayne Jagot has been appointed as the 56^th person to be a judge of the High Court of Australia.

Justice Jagot will join the Court following a distinguished career as a judge of the Federal Court of Australia. Her Honour’s appointment means that the High Court will have a majority of women judges for the first time in its history.

Justice Jagot will replace the Hon. Justice Patrick Keane AC, who retires next month.

President of the Australian Bar Association, Dr Matt Collins AM KC, said, “I warmly congratulate Justice Jagot on her appointment. Her Honour will serve as a member of Australia’s ultimate appellate court with integrity and distinction. On behalf of the legal profession, I also thank Justice Keane for his outstanding service, and the contribution he has made to Australian jurisprudence as a judge of the High Court since March 2013 and in his former roles, and wish his Honour all the best for his forthcoming retirement. Australia is fortunate to have persons of their Honours’ calibre who are prepared to serve the community as judicial officers.”

Justice Jagot’s appointment followed a comprehensive period of consultation by the Attorney-General, that included seeking the views of the ABA on suitable candidates. “The Attorney-General is to be thanked for the consultative way in which this important decision was approached,” Dr Collins concluded.

[Ends]

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Roisin Ryan on 0433 375 940. 

View the PDF here

The National Brief #10

26 September 2022

Click here to read the September issue of the National Brief, the official newsletter of the Australian Bar Association.

Federal Court of Australia – Public Holiday for National Day of Mourning on Thursday, 22 September 2022

13 September 2022

The Prime Minister’s media release of Sunday, 11 September 2022 advised that Thursday, 22 September 2022 will be a public holiday to commemorate Her Majesty Queen Elizabeth II.

The court will not be sitting next Thursday unless a matter cannot be rescheduled and is of such urgency or necessity that would require a sitting on a public holiday. Any decision to sit will be made by the docket judge or the judges of a Full Bench after consultation with the National Operations Registrar and the Chief Justice. If a party has any doubt as to their matter, enquiries should be made of the docket judge or the National Operations Registrar.

Duty judges and duty registrars will remain available for urgent applications.

High Court (2023 Sittings) Rules 2022

12 September 2022

The Justice of the High Court of Australia have made a Rule of Court appointing the High Court sittings for 2023.  The Rule of Court is available here. 

The Rule of Court appoints the Full Court sittings to be held in Canberra throughout the year and the days on which special leave applications will be heard.  Where required, and if practicable, sittings of the Court will continue to be held in Adelaide, Brisbane, Darwin, Hobart and Perth.  Additional sittings may also be held on other days as required, for example in matters requiring expedition.  These sittings will be appointed by the Chief Justice pursuant to Rule 6.04.2 of the High Court Rules 2004.

Additionally, phone numbers for the following registries have been updated:

Canberra (02) 6270 6857

Melbourne (02) 6270 6800

Sydney (02) 6270 6380

Statement on the Use of Postnominals

09 September 2022

On the demise of Her Majesty Elizabeth II, the Queen of Australia, and the accession to the throne of His Majesty Charles III, the King of Australia, the appointments of persons as Queen’s Counsel by letters patent continue automatically. By custom, those persons, upon the passing of Her Majesty, became ‘King’s Counsel’ (or ‘KC’). They did not need to seek new letters patent of appointment or take any further action.

View the PDF here

Passing of Her Majesty Queen Elizabeth II

09 September 2022

The Australian Bar Association (ABA), on behalf of Australia’s more than 6,000 barristers, offers heartfelt condolences to the family of Queen Elizabeth II upon the passing of Her Majesty.

Her Majesty served as Head of State of the United Kingdom and Australia over seven decades; a period during which the United Kingdom had 16, and Australia had 17, Prime Ministers.

President of the ABA, Dr Matt Collins AM KC, said, “Her Majesty served the people of Australia, the United Kingdom and the Commonwealth with unfailing dignity, compassion, intelligence and grace over seven remarkable decades. Throughout that period, Australia has been very well served by, and owes much of its stability and prosperity to, the institutions and Westminster traditions of which Her Majesty has been a vital and wise custodian. On this sad day, the legal profession joins in mourning the death of Her Majesty and in offering our best wishes to her successor, King Charles III.”

[ends]

 

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Roisin Ryan on 0433 375 940

View the PDF here

Australian Legal Profession Deeply Concerned about Attacks on Judicial Independence in Kiribati

06 September 2022

The Law Council of Australia and the Australian Bar Association express deep concern about recent events in Kiribati.

On 2 September 2022, Kiribati President Taneti Maamau purported to suspend the nation’s three most senior remaining judges, Justices Paul Heath, Peter Blanchard and Rodney Hansen. Those judges, who are retired senior New Zealand judges and distinguished jurists, last month quashed an administrative decision to deport High Court judge and Australian citizen Justice David Lambourne. These latest attacks on the judiciary follow the earlier suspension of Kiribati’s Chief Justice William Hastings and Justice Lambourne.

As a result, there are now no sitting judges in Kiribati.

Law Council of Australia President Tass Liveris said, “The Australian legal profession calls on the Government of Kiribati to respect the independence of the judiciary and the separation of powers, and to refrain from any inappropriate or unwarranted interference with the judicial process. The decisions of Kiribati’s highest court, and its judicial officers, must be respected.”

Australian Bar Association President Dr Matt Collins AM QC added, “Judicial officers must have security of tenure. Respect for the rule of law demands that they be able to determine disputes between the state and the citizen according to law and, where those decisions go against the state, to do so free from recriminations and attacks on their integrity.”

[Ends]

About the LCA

The Law Council of Australia is the voice of the Australian legal profession in Australia and internationally. Established in 1933, it represents all 16 Australian State and Territory Law Societies and Bar Associations and Law Firms Australia. Through this representation, the Law Council effectively acts on behalf of more than 90,000 lawyers across Australia on legal and policy matters of national and international importance to uphold the rule of law, to support the administration of justice and to promote access to justice.

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

kristen@talkforcemedia.com.au or call Kristen Connell on 0400 054 227.

media@austbar.asn.au or call Roisin Ryan on 0433 375 940.

View the PDF here

Australian Bar Association launches national Find-A-Barrister service

29 August 2022

Australian Bar Association launches national Find-A-Barrister service

29 August 2022

The Australian Bar Association (ABA) is set to launch an Australian first national Find-A-Barrister service on Thursday, 1 September 2022.

The service will showcase the professional profiles of barristers wherever they are based in Australia and identify their areas of speciality and the Australian jurisdictions in which they practice.

President of the ABA, Dr Matt Collins AM QC, said, “The ABA’s Find-A-Barrister service will provide solicitors and clients, for the first time, with the ability to identify the best available barristers for their matter from a single search, irrespective of where they are located around Australia. It will reduce the frustration inherent in having to look for barristers on a State-by-State, clerk-by-clerk or chambers-by-chambers basis. Over time, I expect this to become the go-to service to search for Australian barristers.”

The service will enable barristers to showcase their qualifications, dates of admission and call, date of taking silk (where applicable), previous occupations and specialised practice areas. The search functionality enables users to filter for barristers who are prepared to accept briefs Australia-wide. It also identifies whether the barrister is a nationally accredited mediator and if they have adopted the Law Council of Australia’s Equitable Briefing Policy. It will also be possible to search for First Nations barristers and to conduct searches based on gender and seniority.

The ABA’s Find-A-Barrister service will be available online from Thursday, 1 September via the ABA website.

[ends]

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Roisin Ryan on 0433 375 940. 

View the PDF here

Australian Bar Association Welcomes Western Australia to the National Legal Profession

01 July 2022

Western Australia today joins the uniform regulatory scheme for Australian legal practitioners, the third State to do so since the scheme came into operation in New South Wales and Victoria in 2015.

With Western Australia’s participation, the uniform scheme now covers some 75% of all Australian barristers and solicitors.

ABA President, Dr Matt Collins AM QC said, “The uniform scheme provides benefits to consumers of legal services as well as practitioners. It imposes rigorous ethical and practice obligations on barristers and solicitors, ensuring the highest standards of professional conduct. Having a single framework also facilitates the free movement of legal services between different jurisdictions and promotes competition.”

[ends]

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

media@austbar.asn.au or call Roisin Ryan on 0433 375 940.

View the PDF here

The National Brief #9

15 June 2022

Click here to read the June issue of The National Brief, the official newsletter of the Australian Bar Association.

Vale Sir Gerard Brennan AC KBE QC

02 June 2022

The Law Council of Australia and the Australian Bar Association note with sadness the passing of the Hon. Sir Francis Gerard Brennan last night, aged 94.

Sir Gerard served with distinction as Australia’s tenth Chief Justice from 21 April 1995 to 21 May 1998. He was a Justice of the High Court of Australia from 1981 to 1995, President of the Australian Bar Association from 1975–76 and a member of the executive of the Law Council of Australia from 1974–76. Appointed a Knight Commander of the Most Excellent Order of the British Empire in 1981, and a Companion of the Order of Australia in 1988 in recognition of his service to the law, Sir Gerard was one of Australia’s most distinguished and respected jurists.

LCA President Tass Liveris said, “Sir Gerard made a remarkable contribution to the law and jurisprudence and his legacy will echo long into the future. Despite his formidable abilities, his unwavering reputation for decency and thoughtfulness provide a shining model to follow.”

ABA President Dr Matt Collins AM QC said, “Sir Gerard was one of the finest jurists this country has produced. He inspired generations of lawyers with his intellect, but also his deep sense of humanity. His passing is a great loss to the whole of the justice community.”

Sir Gerard’s wife, Dr. Patricia O'Hara passed away in September 2019. Sir Gerard is survived by his four daughters and three sons.

Vale Sir Francis Gerard Brennan AC KBE GBS QC.

On behalf of the Law Council of Australia and the Australian Bar Association, our condolences are with his family at this time.

About the LCA

The Law Council of Australia is the voice of the Australian legal profession in Australia and internationally. Established in 1933, it represents all 16 Australian State and Territory Law Societies and Bar Associations and Law Firms Australia. Through this representation, the LawCouncil effectively acts on behalf of more than 90,000 lawyers across Australia on legal and policy matters of national and international importance to uphold the rule of law, to support the administration of justice and to promote access to justice.

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

media@austbar.asn.au or call Roisin Ryan on 0433 375 940.

View the PDF here

Australian Bar Association Congratulates Lincoln Crowley QC

27 May 2022

The Australian Bar Association congratulates Lincoln Crowley QC on his appointment today as a judge of the Supreme Court of Queensland.

Justice Crowley is the first Indigenous Australian to be appointed to the bench of an Australian Supreme Court.

President of the ABA, Dr Matt Collins AM QC said, “Justice Crowley was a talented barrister and Crown Prosecutor who has made a significant contribution to the legal profession and is a role model for First Nations lawyers throughout Australia. His appointment is rightly being celebrated in the legal community as an historic achievement. I wish him all the best in his new role.”

[ends]

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

[ends]

media@austbar.asn.au or call Roisin Ryan on 0433 375 940.

View the PDF here

Australian Bar Association Responds To Prime Minister’s Attack On Barristers

10 May 2022

AUSTRALIAN BAR ASSOCIATION RESPONDS TO PRIME MINISTER’S ATTACK ON BARRISTERS

10 May 2022

 

The Australian Bar Association is deeply concerned by the Prime Minister’s attack today on the barristers of Australia, stating that he “didn’t care if [they] disagree with me” and that “I’ve never had much truck with them over the course of my entire political career.”

ABA President Dr Matt Collins AM QC said, “Australia’s more than 6,000 hardworking barristers are committed to promoting the administration of justice. They abide by a cab rank rule, which requires them to accept briefs within their area of expertise and ensures that all Australians have an entitlement to representation. Every year, they provide countless hours of pro bono and poorly remunerated assistance to people from Australia’s most disadvantaged communities. They frequently stand between the individual and the State, and provide a bulwark for the rule of law. Any person who has no truck with barristers cannot have made a conscientious effort to understand their indispensable contribution to civic society.”

The Prime Minister’s comments were made in the context of the ongoing debate about the need for a federal anti-corruption commission. Dr Collins said, “While there is room for debate about the design, powers and mode of operation of anti-corruption bodies, it is neither correct nor constructive to characterise the NSW ICAC as a kangaroo court. A kangaroo court is a body that operates with disregard for or perversion of legal procedure. The ICAC Commissioners are highly experienced and respected jurists who preside over investigations conducted according to law and the powers given to them by the NSW Parliament.”

[Ends]

 

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

 

[ends]

media@austbar.asn.au or call Greg Tolhurst on 0406 040 683.

View the PDF here

Call for nominations for ABA nominee to the Legal Services Council’s Admissions Committee

11 April 2022

The Legal Services Council’s Admissions Committee is a statutory committee established by the Legal Services Council. Its functions are to:

 

(a) develop Admission Rules under the Uniform Law

(b) give advice to the Council about guidelines and directions of the Council relating to admission and any other matters relating to admission, and

(c) give advice to the Council about any matters referred to the Committee by the Council.

 

The Committee performs important work in the implementation of admissions aspects of the Uniform Law and the Council. The Committee meets three times a year. Membership of the Committee is honorary, although the Council meets reasonable travel and incidental costs.

 

Pursuant to Sch 1, cl 21(1)(c) of the Uniform Law one member of the Committee must be a person nominated by the Australian Bar Association, who has expertise or experience in legal practice. The terms on which members of the Committee are appointed and hold their positions are determined by the Legal Services Council.

 

Nominations to be submitted by Friday 29 April and should be sent to ceo@austbar.asn.au

FEDERAL ELECTION 2022

10 April 2022

The Australian Bar Association looks forward to the forthcoming election campaign and calls on all parties and candidates to outline policies directed at enhancing access to justice, improving the administration of justice, and promoting of the rule of law.

The many priorities in this critical sector include:

• a strong and independent Commonwealth court and tribunal system, with increased resources to reduce waiting times and backlogs, and ease the significant pressure placed on the system as a result of COVID-related lockdowns and other restrictions;
• adequate funding for legal aid to ensure that eligible Australians are able to access timely, high quality legal representation, particularly in criminal and family law matters;
• the establishment of a strong and properly resourced Commonwealth independent anti- corruption commission; and
• increased consultation in the making of judicial and tribunal appointments, to ensure that all potential candidates are considered and the views of the legal profession taken into account.

President of the ABA, Dr Matt Collins AM QC said, ‘The ABA has offered, and stands ready, to host a Justice Debate between the Commonwealth Attorney-General and Shadow Attorney-General, at which issues affecting the justice sector and the major parties’ competing policy platforms can be debated to assist all Australians in exercising their democratic right on election day.’

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

media@austbar.asn.au or call Róisín Ryan on 0433 375 940

View the PDF here

The National Brief #8

21 March 2022

Click here to read the March issue of The National Brief, the official newsletter of the Australian Bar Association.

Read more here

ABA welcomes Epiq as a sponsor of Re-Emerge 2022

14 February 2022

The Australian Bar Association is pleased to welcome Epiq as a Silver Sponsor of the ABA’s national conference, Re-Emerge 2022, to be held in person in Melbourne and fully remotely from 28 to 30 April 2022.

Epiq is a worldwide provider of legal services to law firms, corporations, financial institutions and government, helping them streamline the administration of business operations, class action and mass tort claims, court reporting, eDiscovery, regulatory, compliance, restructuring and bankruptcy matters.

Re-Emerge 2022 will be the first gathering of the Australian Bar in more than two years. Epiq joins the ABA’s Major Partners, The Australian Financial Review and Legal Homes Loans as a sponsor of this landmark conference.

Confirmed speakers include Professor Richard Susskind OBE, the Hon. James Allsop AO (Chief Justice of the Federal Court of Australia), the Hon. William Alstergren (Chief Justice of the Family and Federal Circuit Court of Australia), the Hon. Anne Ferguson (Chief Justice of the Supreme Court of Victoria), the Hon. Senator Michaelia Cash (Commonwealth Attorney-General), the Hon. Jaclyn Symes (Victorian Attorney-General), the Hon. Mark Speakman (NSW Attorney-General), the Hon. John Quigley (WA Attorney-General), the Hon. Justices Gageler, Keane, Gordon and Steward (High Court of Australia) and many other senior members of the judiciary and legal profession and others taken from the apex of national life.

As part of its sponsorship, Epiq will provide transcripts of conference sessions.

ABA President Dr Matt Collins QC said, ‘We are delighted to welcome Epiq as a sponsor of this much-anticipated conference at which the ABA will bring together leaders from the judiciary, the Bar, the legal profession, politics and the media from across Australia and internationally to reflect upon two momentous years dominated by COVID-19.’

Early-bird registrations are currently available for Re-Emerge 2022. For more information about the conference and to register, visit www.re-emerge2022.com.au.

[ends]

 

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

Media Enquiries

Email media@austbar.asn.au or call Greg Tolhurst on 0406 040 683.

View the PDF here

The National Brief #7

17 December 2021

Read more here

ABA calls for moderation in anti-corruption debate

26 November 2021

The Australian Bar Association has called for moderation in the debate over the proposed federal anti-corruption commission, after the Prime Minister yesterday compared the New South Wales Independent Commission against Corruption to a ‘kangaroo court’.

The ABA has long supported calls for a federal anti-corruption body with powers to investigate alleged malfeasance by federal parliamentarians, agencies and public servants. The design, powers and mode of operation of such a body are appropriate matters for robust debate, and the operation of state and territory anti-corruption bodies should be subject to scrutiny and, where warranted, criticism both generally and in particular cases. The ABA welcomes debate about the establishment of a federal body.

The Macquarie Dictionary, however, defines a ‘kangaroo court’ as an ‘unauthorised or irregular court conducted with disregard for or perversion of legal procedure’.

ABA President Dr Matt Collins QC said, ‘Whatever criticisms there may be of the NSW ICAC, it is neither correct nor constructive to characterise proceedings before it as the manifestation of a kangaroo court. The ICAC Commissioners are highly experienced and respected jurists who preside over investigations conducted according to law and the powers given to them by the NSW Parliament.’

About the ABA

 

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

 

Media Enquiries

Email media@austbar.asn.au or call Greg Tolhurst on 0406 040 683.

ABA announces New Executive Team

24 November 2021

The Australian Bar Association has announced the election of its executive team for 2021–22.

Dr Matt Collins AM QC, a former president of the Victorian Bar, has been elected President of the ABA. He is joined by Peter Dunning QC, a former President of the Bar Association of Queensland and Solicitor-General for Queensland, and Michael McHugh SC, the President of the New South Wales Bar Association, as Vice-Presidents. The President of the ACT Bar Association, Andrew Muller, will serve as Treasurer. Ian Robertson SC of the South Australian Bar Association will continue as Chair of the Advocacy Training Council.

Dr Collins said, ‘It is an honour to have been elected President of the ABA. I pay tribute to outgoing President, Matthew Howard SC, who has skilfully led the profession through two of the most challenging years in memory, during which the justice system and legal profession have had to adapt to lockdowns, working from home, and the suspension of jury and in-person trials in much of the country. Matt’s leadership during this difficult period has been admired throughout the whole of the sector.

‘As we look forward to a brighter 2022, there is much to be done in promoting the indispensability of Australia’s 6,000-plus barristers to the administration of justice. Barristers play a critical role in safeguarding the rule of law by ensuring that Australians have access to fearless and independent representation before the nation’s courts and tribunals. The ABA’s Council has adopted an ambitious program for the year ahead, prioritising enhanced professional standards for barristers; fostering a collegiate, inclusive and diverse national profession; and advocating publicly for the importance of an independent judiciary and legal profession dedicated to the service of the Australian people.’

The non-executive members of the ABA Council for 2021–22 are:

Anna Mitchelmore SC (Vice-President, NSW Bar Association)
Duncan McConnel SC (President, NT Bar Association)
Mark Hoffmann QC (President, SA Bar Association)
Martin Cuerden SC (President, WA Bar Association)
Phillip Zeeman (President, Tasmanian Bar Association)
Tom Sullivan QC (President, Bar Association of Queensland)
Róisín Annesley QC (President, Victorian Bar)
Andrew Muller (President, ACT Bar)

About the ABA

The Australian Bar Association is the peak body representing more than 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

Media Enquiries

Email media@austbar.asn.au or call Greg Tolhurst on 0406 040 683.

View the PDF here

High Court of Australia Robing Protocol November 2021

24 November 2021

FULL COURT
Counsel appearing before the Full Court exercising its appellate jurisdiction are to wear what is customarily worn in the Commonwealth court or the Court of Appeal or Court of Criminal Appeal of the Supreme Court from which the appeal (or application for special leave to appeal) has been brought.

For appearances before the Full Court in a matter in the Court’s original jurisdiction, counsel are to wear what is customarily worn in the Court of Appeal or Court of Criminal Appeal of the Supreme Court of the State or Territory in which they most commonly practise.

SINGLE JUSTICE
Counsel are not to robe for hearings of any kind before a single Justice, including any listing before a single Justice of a matter in the Court’s appellate jurisdiction.

COURT OF DISPUTED RETURNS
Counsel are to robe for a hearing, including a directions hearing, before a single Justice of the Court sitting as the Court of Disputed Returns.

CEREMONIAL SITTINGS
When attending a ceremonial sitting of the Full Court, counsel may wear what is customarily
worn for a ceremonial sitting in the Supreme Court of the State or Territory in which they most commonly practise.

View the PDF here

New York State Bar Association, International Section’s, “Arbitration of Insurance Disputes”

23 November 2021

Panel discussion on US and Australian perspectives about recent trends in relation to the arbitrability of insurance disputes, including where the insurer is a non-party to the arbitration agreement.
This new frontier has implications for insurance lawyers and arbitrators across the spectrum of legal disputes, and raises interesting questions about the interaction between contractual rights, statutory remedies, domestic arbitration statutes and the New York Convention.

Join Ed Lenci, Chair of the New York State Bar Association, International Section, and Professor Charles J Moxley Jr to present the US perspective, and Professor Chester Brown and Barrister Laina Chan from Sydney to discuss the approach in Australia. Panel Chair – Tim Castle SC.

Date:	Wednesday 24 November 2021
Time:	11.00am (Sydney/Canberra/Melbourne/Hobart)
	10.30am (Adelaide)
	10.00am (Brisbane)
	9.00am (Tokyo/Seoul)
	8.00am (Perth/Beijing/Singapore)

 

Registration is complimentary here.

View the PDF here

The National Brief #6

21 November 2021

National Conference
In the last National Brief, I reported on the decision to postpone the National Conference.
We have now fixed the dates of 28-30 April 2022 for the Conference which will take place both physically in Melbourne and fully remotely. The details are here: https://austbar.asn.au/events-calendar/details/re-emerge-2022

The postponed Conference has received great, continuing support from its presenters and our sponsors.

It will be a wonderful opportunity for the National Bar to gather together again and I commend the program to you. Can I acknowledge, again, the enormous work done by Dr Matt Collins AM QC, the ABA’s outgoing head of Strategy Implementation Dr Liz Gray, and the many members of the Victorian Bar who have all worked for both the initial planning and rescheduling of the Conference.

Podcasts: Sexual Harassment and the Bar

With the great benefit of Liz Gray’s herding of cats, two further Podcasts have been recorded and released by the ABA on sexual harassment and the Bar.

Podcast #3 is entitled “Eliminating Sexual Harassment at the Bar: Building a Culture of Respect”; in which I was joined Dr Michael Flood of Queensland University of Technology.

In Podcast #4 Kate Eastman SC discusses “From #MeToo, through #UsToo and Respect@Work, to changes to the Sex Discrimination Act. Bringing the Bar to account.”
These have both now been distributed and placed on the website: ABA | ABA Podcast #3 (austbar.asn.au) and ABA | ABA Podcast #4 (austbar.asn.au)

The Bar and the pandemic

The ABA receives many requests from media outlets and others for comment on issues in the public domain. Usually by the Executive, but sometimes by the full Council, careful consideration is given to such requests with a view to the ABA only speaking when it feels it can make an appropriate contribution to
the particular issue. We were contacted in the last month by an international publication that specifically covers Bars and spirits: I suppose it had to happen at some point!

Amongst the questions which were posed to us were:

• what has the last year been like for the Australian Bar?
• what will be the biggest challenges facing the sector in 2022?
• was I optimistic for the future of the Bar (industry) next year?

All of these, are excellent questions for the Bar that we are actually at.

I can say that the Bar has responded magnificently to the challenges of the pandemic and has across the board sought to continue to represent our clients and to work co-operatively with the Courts to do so. I think the Bar can be justly proud of the work it has done, and continues to do.

Sign-off

On Tuesday, 23 November 2021, the Association will hold its AGM at which time a new Executive and President will be elected.

That will bring to an end the two years I have been President and the six years of being on the ABA Council.

It has been an incredible privilege to serve as President in, it almost goes without saying, what have been an incredibly challenging couple of years for
the world, our society and the profession.

I would like to thank, especially, Greg Tolhurst who has been (and remains) an incredibly hardworking, thoughtful and insightful CEO. I would also like to thank the Executive over the last couple of years who have been always constructive, co-operative and industrious. It would, however, be remiss for
me not to single out Dr Matt Collins AM QC, Vice-President for these last two years, for his hard work, energy and wise counsel.

I have every confidence that the incoming President and Executive will continue to serve the ABA’s members most excellently.

Matthew Howard SC
President, Australian Bar Association

View the PDF here

ABA Podcast #4

16 November 2021

From #metoo, through #ustoo and Respect@work, to changes to the Sex Discrimination Act. Bringing the Bar to account

In this fourth podcast, Matthew Howard SC, President of the ABA, and Kate Eastman AM SC, Chair of the ABA Diversity & Inclusion Committee, discuss how the #metoo movement set off a string of legal and social action, which has now brought the judiciary and the Bar under the legal framework of the Sex Discrimination Act 1984 (Cth). You can listen to the podcast here.

Concurrent Evidence Practices Survey – The results

11 November 2021

The survey found that over 85% of respondents agreed it was a useful tool and more than two thirds of participants had experienced an increase in the use of concurrent evidence over the last five years. With that said, a number of key issues with processes around taking concurrent evidence were identified and discussed, suggesting there is still room for improvement.

To get the full insights, click on the link below to review the survey results.

Read more here

ABA Podcast #3

28 October 2021

Building a Culture of Respect

In our third podcast, Assoc. Prof. Michael Flood, at the School of Justice at the Queensland University of Technology, joins Matthew Howard SC, President of the ABA, and Kate Eastman AM SC, Chair of the ABA Diversity & Inclusion Committee, to discuss what men can do to change the culture of the profession and help eliminate sexual harassment. You can listen to the podcast here.

ABA KordaMentha Concurrent Evidence Practices Survey

24 August 2021

Hot Tubbing – hot or not?

KordaMentha and the Australian Bar Association are interested in your views on concurrent evidence practices in Australia.

While its modern history goes back more than 35 years, concurrent evidence has seemingly increased in frequency over the last decade. However, 'hot-tubbing’ often receives mixed reviews from those operating within the legal sector, perhaps because of the varied approaches and formats that are applied.

With that in mind, the Concurrent Evidence Practices Survey has been designed to collect the opinions of those who give, examine or assess expert evidence, whether in litigation, arbitration or other hearings, to obtain benchmark information regarding current best practices for concurrent evidence in Australia.

If you have first-hand experience with concurrent evidence and would like to be part of the survey, we welcome your participation. The survey closes on 17 September.

You can find more information, and take the survey here.

Read more here

Australian Bar Association responds to recent commentary about judicial impartiality

23 August 2021

The Australian Bar Association notes recent commentary in the media about analyses of the outcomes of decisions reached by individual judges – sitting both by themselves in trials or together on appeals. From those, it has been suggested that certain judges are "pro" or "anti" certain groups, in particular employers or employees/unions.  It is misleading to draw any inference as to the impartiality of the judiciary on that basis.

President of the Australian Bar Association, Matthew Howard SC said, "The methodology employed in analyses of this kind is flawed. The Australian people are well served by highly competent, hard-working and independent judges.  Judges take an oath to serve the community without fear or favour and it is unfair to question their independence on the basis of these kinds of ‘statistics’.

“Cases are decided by the application of legal principles, sometimes developed over many years, to the particular facts in each case and having regard to any relevant legislation. The impartiality of judges should not be questioned without a complete understanding of each of those factors.”

About the ABA
The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554.

View the PDF here

Statement on Afghanistan by the Law Council of Australia and the Australian Bar Association

18 August 2021

The Law Council of Australia and the Australian Bar Association join members of the international legal community in expressing grave concern regarding the fall of Afghanistan’s Government to the Taliban.

Dr Jacoba Brasch QC, President of the LCA, and Mr Matt Howard SC, President of the ABA, said that among the pressing issues arising for the Australian Government’s urgent attention and action are:

1. (1) assisting Australians who are at risk and need to leave, along with Afghans who supported Australia's defence and humanitarian work in the country, and
2. (2) attending to the grave risk to those who have worked to defend and uphold the rule of law, and to support and establish democratic and justice institutions over the past twenty years, including in particular women participating in the legal profession.

“Among Afghans at terrible risk are judges and lawyers – many of whom have courageously worked to defend and uphold the rule of law, and to support and establish democratic and justice institutions over the past twenty years. We are particularly concerned for the safety of all Afghan judges, but in particular, the women judges who previously heard trials against members of the Taliban, and lawyers who worked for the fallen Government.

“We urge the Australian Government to continue to work with its international allies to protect and assist vulnerable Afghans, including by offering asylum and working to ensure safe passage of Afghans seeking to leave Afghanistan.”

View the PDF here

The National Brief #5

09 August 2021

This week, with sadness, the ABA Council resolved to postpone the National Conference which was due to take place in mid-September physically in Melbourne and fully remotely.

When Council decided last year to hold the Conference, we had hoped that the worst of COVID-19 would be well behind us and we could bring the national Bar together in Melbourne, which had borne the brunt of the pandemic and consequent lockdowns.

Obviously, some few weeks out from the Conference our hopes and expectations have not come to pass.

We simply cannot achieve, now, the vision of bringing the national Bar together physically.

While the Conference was always intended to be fully available remotely – which also had allowed us to access high-profile international presenters – we did not intend for the Conference to be only a remote event.

For those of you who had looked at the program, it was a provocative and challenging one. We were genuinely excited by it and by the calibre of speakers we were able to attract.

We are now looking for dates in 2022 for the Conference. We have been buoyed by the genuine enthusiasm of the presenters who are very keen to remain involved.

Those on the Steering Committee – made up of Sam Hay QC (Victoria), Nicole Papaleo (Victoria), Raini Zambelli (Victoria), Jo Sorbello (Queensland) and Janet McKelvey (NSW) – have worked very hard and I wish to extend my thanks to them.

I do want to single out, however, the work and efforts of ABA Vice President Dr Matt Collins AM QC and Dr Liz Gray (Head of the Association’s Strategy Implementation).

The two of them have put in an inordinate amount of work and I want to thank them for their energy, passion and cool judgement in putting the Conference together.

Of course, we will let members know as soon as we have firmed up on a replacement date.

Regards,

 

Matthew Howard SC
President, Australian Bar Association

View the PDF here

The Australian Bar Association calls on the Commonwealth to reconsider the prosecution of Bernard Collaery

28 July 2021

The Australian Bar Association shares the concerns of the ACT Bar Association in relation to the prosecution of barrister and former Deputy Chief Minister of the ACT and ACT Attorney-General, Bernard Collaery.

Mr Collaery advised the East Timor Resistance movement and represented Witness K in a legal case brought by the Timor-Leste Government against the Australian Government.

The prosecution relates to events which occurred in 2004. The prosecution was commenced at the end of May 2018 with the consent of the (former) Attorney-General, a consent which his predecessor had not granted.

The prosecution has largely taken place in secret, with much of the evidence suppressed. The basis upon which evidence needs to be suppressed is, itself, the subject of suppression. This impedes the ability of the legal profession and the public to scrutinise the administration of justice in this important case.

Further background can be found in the ACT Bar Association’s media release here.

The Council of the Australian Bar Association this week unanimously passed the following resolution:

The ABA expresses its concerns about the delays in the prosecution of Mr Collaery and the secret nature of the proceedings and suppression of much of the evidence as raising rule of law concerns going to the open and fair administration of justice.

President of the ABA, Matthew Howard SC, said, “This matter raises two, fundamental rule of law questions as to the fair and open administration of justice – the length of time it has taken to prosecute the matter, and the suppression of evidence. For the public to have confidence in the administration of justice, it is vital that prosecutions proceed in a timely manner, and that the workings of the courts be open to public scrutiny to the maximum extent possible. The public will rightly be concerned, in relation to Mr Collaery, that little is or can be known about the prosecution, and that it is continuing some 17 years after the events in question.

“The ABA urges the federal Attorney-General to reconsider the prosecution in light of these significant rule of law issues.”

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

View the PDF here

The National Brief #4

20 July 2021

Last Friday, I was asked by a journalist to comment on the impact of lockdowns on the justice system. In response, I noted the greater impacts on, for example, jury trials and the growing backlogs in that area. I also said that the Bar had worked very hard, obviously with the rest of the profession and the Courts, to keep hearings going to continue to resolve disputes. Notwithstanding different levels of comfort and competence with technology prior to covid, the Bar has adapted rapidly to the benefit of the administration of justice. As much of the country is in lockdown at the moment, I think we can (without any false humility) take some pride in what we have done in the last 15 or so months, and continue to do. For those with a subscription to The Australian, the article is here.

ABA National Conference:  RE-EMERGE 2021, 16-18 September 2021

Towards the end of last year, when the ABA decided to hold a National Conference in Melbourne in September, we were hopeful that we would be through the worst of the disruptions to our professional and personal lives. Obviously, that is not where we are yet.

Nonetheless, what motivated us towards the end of last year remains central: to bring the national Bar together to explore how we re-emerge from the pandemic – how we pick ourselves up and pull together, to energetically confront the challenges ahead, to innovate, and to continue providing independent representation and advice without fear or favour.

The planning for the Conference was always for it to be held fully physical and fully remote and we have been working towards delivering that. While things can, and have, moved quickly, we remain committed to delivering the 2021 National Conference in Melbourne on 16-18 September. We have secured the iconic State Library of Victoria as the conference venue, and have a robust program with more than 50 speakers including leaders in our judiciary, politicians, media and others across the legal profession.

Of course, covid-related restrictions may disrupt attendance – which is why we have engaged a state-of-the art virtual conferencing team so that everyone attending – be it in-person in Melbourne or live-streamed – will be able to contribute to the debate and explore the in-depth issues discussed.

With four sitting High Court judges in attendance, together with heads of federal and Victorian jurisdictions, eminent academics, Attorneys-General and politicians, members of the Bar and the legal profession, epidemiologists and mental health professionals, the program will provide us with an opportunity to reflect on our personal and professional journeys through the pandemic, understand key black-letter law, practice and ethical issues, and enable us to better meet the challenges and opportunities of the post-pandemic world.

Every member of the Australian Bar can access the discounted ABA Member rate, and there are a limited number of tickets available for New Barristers (those who first signed the Bar Roll on or after 1 July 2019). We have made provision for those who are unable to attend Thursday 16th because of Yom Kippur.

For those able to attend in-person, we have a great social program lined up – with welcome drinks at the Old Melbourne Gaol followed by sectional dinners hosted by Victorian Bar Associations on Thursday 16th, and the evening-wear, black-tie dinner at the stunning new W Melbourne on Friday 17th.

We’re delighted that The Australian Financial Review is a major partner of RE-EMERGE 2021, with discounts available for AFR subscribers. Subscribers to the AFR can read the article published about the conference here. I urge all members of the Bar to book early to secure their spot.

The conference website with full registration details is at re-emerge2021.com.au.

Support for those reporting sexual harassment

The recent reports of sexual harassment by a judge of the Federal Circuit Court were of grave concern. The ABA supports the unequivocal actions taken by the Chief Judge of the Federal Circuit Court, the Hon. Will Alstergren. On behalf of the ABA, I said to the press that, “It is unacceptable that sexual harassment within the profession and courts continues to occur. The ABA’s position is that sexual harassment must stop. As the Chief Judge forthrightly stated such behaviour is ‘unacceptable and inexcusable’. The Court’s actions and clear statements of support for the complainants are welcome. People subjected to this conduct must be heard and their experiences respected. The effects on them are often severe. The ABA has recognised that power imbalances – which are present within the law – can and do contribute to such unacceptable behaviour. The whole of the profession has an obligation to stop this behaviour continuing.”

The ABA also supports the establishment of a Federal Judicial Commission, which would be an important step to enhance the public’s confidence in the administration of justice. You can read the ABA’s statement here.

Those with subscriptions to Lawyerly can read the full press report here.

Supporting lawyers in defending the rule of law

It is unfortunate that in a number of our near neighbours, the rule of law is undermined by the intimidation and incarceration of lawyers as they defend the legal rights of their clients, and political pressure on the judiciary undertaking their role in upholding the rule of law. In the last National Brief, you will remember I wrote about the ABA’s support for lawyers in Myanmar – the statement is here.

Last month, the ABA joined the Law Council of Australia and the New Zealand Law Society | Te Kāhui Ture o Aotearoa in supporting the independence of the judiciary in Samoa, which has been been criticised for performing its role in considering the consititutional questions falling out of the disputed election in that country. That statement is here.

The ABA has also joined 30 other international legal organisations in signing a joint statement organised by the Netherlands-based NGO, Lawyers for Lawyers, condemning the escalating attacks against lawyers in the Philippines. More than 60 lawyers have been killed in the Philippines since 2016, the majority of which have been related to cases in which they represent victims of human rights violations, government critics, political opposition leaders, human rights defenders, environmental activists, and people who are accused of terrorist- or drug-related crimes. The joint statement is here.

Significance of Culture to Wellbeing, Healing and Rehabilitation

The ABA has supported the Bugmy Bar Book in publishing the Significance of Culture to Wellbeing, Healing and Rehabilitation report, by Vanessa Edwige, registered psychologist, and Dr Paul Gray, Associate Professor, UTS Jumbunna Institute of Indigenous Education and Research. Both of the authors are Directors of the Australian Indigenous Psychologists Association (AIPA).

The report attests to the importance of sentencing orders that enhance an offender's prospects of rehabilitation by providing for engagement with culturally appropriate services and programs, and that enable Indigenous communities to play a role in the healing process wherever possible. More information about the report is here.

Postponement of the Silks’ Bows and Dinner in Canberra on 2 August 2021

These events traditionally take place at the opening of the legal year at the end of January or the beginning of February in the High Court. We postponed them from beginning of February this year to the first sitting date after the Court’s winter recess.

Unfortunately, after close consultation with the Court, we have postponed these important events again.

Matthew Howard SC
President, Australian Bar Association

View the PDF here

Significance of Culture to Wellbeing, Healing and Rehabilitation

20 July 2021

The ABA has supported the Bugmy Bar Book in publishing the Significance of Culture to Wellbeing, Healing and Rehabilitation report, by Vanessa Edwige, registered psychologist, and Dr Paul Gray, Associate Professor, UTS Jumbunna Institute of Indigenous Education and Research. Both of the authors are Directors of the Australian Indigenous Psychologists Association (AIPA).
 
The report builds on the Bugmy Bar Book’s work to date concerning establishing the link between experiences of disadvantage and contact with the criminal justice system, and citing recognised roads to rehabilitation and healing.

The report attests to the importance of sentencing orders that enhance an offender's prospects of rehabilitation by providing for engagement with culturally appropriate services and programs, and that enable Indigenous communities to play a role in the healing process wherever possible. The report will be relevant in assisting the framing of sentencing orders, including the finding of special circumstances and the crafting of conditions attached to community-based orders.
 
In addition to using the report in sentence proceedings, it is envisaged it may also be useful for briefing non-Indigenous mental health and other experts and as a tool for building cultural competence.

For more information about the report and to download a copy please visit the link below.

 

Read more here

The Australian Bar Association announces The Australian Financial Review as a Major Partner in RE-EMEREGE 2021

19 July 2021

The Australian Bar Association is delighted to announce that The Australian Financial Review is the Major Partner for the ABA’s 2021 National Conference Re-emerge. The Australian Bar after COVID-19: Energised, Innovative, Enduring.

Taking place in Melbourne at the State Library of Victoria on 16-18 September, RE-EMERGE 2021 will be the first gathering of the national Bar for nearly two years and will feature an immersive program focusing on provocative and robust panel discussions, reflecting in particular on the implications of the pandemic for the administration of justice, the Bar and the nation—hence the theme of re-emergence, and the call to arms to energise, innovate and endure.

Matthew Howard SC, President of the Australian Bar Association said, “It is fantastic that The Australian Financial Review is partnering with the Australian Bar Association for this important national conference, RE-EMERGE 2021. This is a unique opportunity for the Bar, judiciary, politicians, academics, policy makers, journalists and legal professionals to come together to think deeply about how COVID-19 has changed our federation, society and profession, and the challenges and opportunities in delivering justice in our community in the post-pandemic world.”

Michael Stutchbury, editor in chief of The Australian Financial Review, said the line-up would ensure the conference was a success. “With four sitting High Court judges, chief justices, attorneys general, leading academics, legal and health professionals and journalists from the Financial Review, RE-EMERGE 2021 promises rigorous and engaging discussion that will shape the national debate.

"The Financial Review is pleased to be involved with this important event."

For more information about the conference, registration and to access the $500 discount for AFR subscribers visit the conference website at re-emerge2021.com.au.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

View the PDF here

ABA Signatory to statement about attacks against lawyers in the Philippines

25 June 2021

The ABA has signed a joint statement with 30 other international legal organisations and bar associations condemning escalating attacks against lawyers in the Philippines.

The statement, issued by Lawyers by Lawyers, is here: The Philippines: attacks against lawyers further escalating - Lawyers for Lawyers.

View the PDF here

Proposed amendments to the Legal Profession Uniform Conduct (Barristers) Rules 2015

24 June 2021

The Australian Bar Association invites comments and submissions on a proposal to amend Rules 123 and 125 of the Legal Profession Uniform Conduct (Barristers) Rules

Submissions can be sent to the Australian Bar Association on or before 2 August 2021 by email to: ceo@austbar.asn.au

The proposal to amend the Barristers Conduct Rules stems from, among other matters, the ABA’s consideration of the Australian Human Rights Commission (AHRC) National Inquiry into Sexual Harassment in Australian Workplaces. The ABA considers the Rules should be amended to:

• expand the application of rule 123 beyond conduct in the ‘course of practice’ to include conduct ‘in connection with’ a barrister’s ‘profession’;
• provide some inclusive examples of what that broader expression is intended to
• capture; and
• expand the application of rule 123 to prohibit bullying ‘in connectionwith’ a barrister’s ‘profession’, rather than ‘workplace bullying’.

The current rules

Rule 123 currently provides:

A barrister must not, in the course of practice, engage in conduct which constitutes:

1. a) discrimination,
2. b) sexual harassment, or
3. c) workplace bullying.

Rule 125 relevantly provides:

workplace bullying

means unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace.

The proposed amendments

Rule 123(1)

(1) A barrister must not, in the course of practice or in connection with their profession, engage in conduct which constitutes:

1. (a) discrimination,
2. (b) sexual harassment, or
3. (c) workplace bullying.

(2) For the purposes of this rule, conduct in connection with a barrister’s profession includes, but is not limited to:

1. (a) conduct at social functions connected with the bar or the legal profession; and
2. (b) interactions with a person with whom the barrister has, or has had, a professional relationship.

Rule 125

workplace bullying means unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace.

View the PDF here

The Australian Bar Association supports the independent judiciary in Samoa

11 June 2021

The Australian Bar Association joins the Law Council of Australia and the New Zealand Law Society | Te Kāhui Ture o Aotearoa in supporting the independence of the judiciary in Samoa and urges all parties to respect and support the rule of law in the country.

The Samoan judiciary has faced criticism for exercising its constitutional role in considering matters arising out of the country’s general elections held on 9 April 2021.

Matthew Howard SC, President of the Australian Bar Association said, “It is the role of the courts to resolve constitutional matters independently and in accordance with the law.”

“The independence of the judiciary is fundamental to upholding the rule of law and maintaining the integrity of the democratic process. The ABA supports the Samoan judiciary in exercising its vital role in resolving the current issue,” he added.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

View the PDF here

Resilience and Reinvention: Dispute Resolution During a Crisis and Beyond

11 May 2021

The Australian Bar Association is pleased to be listed as a supporting organisation of this conference. In addition, we have negotiated for ABA members to register at the Institute’s member discount. 

Please ensure you register at this special link

https://www.resolution.institute/events/event/2021-conference-resilience-and-reinvention-support-orgs.

Australasia's largest dispute resolution organisation, Resolution Institute, is pleased to invite you to its 2021 international conference, Resilience and Reinvention: Dispute Resolution During a Crisis and Beyond.

As COVID-19 continues to disrupt the local and global economies, significant challenges abound. For both private enterprises and public institutions, priorities are rapidly shifting under increased pressure. For organisations in dispute prone sectors, the efficient resolution of disputes is now more important to maintain business and rebuild community confidence and harmony. Increasingly, flexibility and reinvention of consent-based dispute resolution procedures are key to meeting the needs of disputants in these challenging times.

This premier two-day conference is the first face-to-face event in the region’s ADR calendar. Supported by global institutes, government, industry associations, and sponsors, the program comprises 27 specialist sessions and six plenaries, bringing together over 90 key influencers and stakeholders from business, government, judiciary, commercial and academia, addressing developments and emerging trends across a wide range of sectors.

Social highlights include a conference dinner (15 July) and cocktail reception (16 July).

This is a must-attend event highlighting the importance and opportunities of dispute resolution in the COVID-19 era and beyond.

We look forward to welcoming you to what promises to be a high-end experience combining an excellent professional program and a relaxing stay in Sydney.

Read more here

The National Brief #3

07 May 2021

Zero tolerance – let’s make it clear

The publication of the Review into Sexual Harassment in Victorian Courts by the former Victorian Equal Opportunity and Human Rights Commissioner, Dr Helen Szoke AO, and the Review of Sexual Harassment in the South Australian Legal Profession by the South Australian Equal Opportunity Commission, exposed again sexual harassment as a pervasive issue in the legal profession and at the Bar. The reports, again, make uncomfortable reading and, while each focuses on incidents and situations in those two individual States, the findings are of national importance and are relevant to every Bar in every State and Territory in Australia. I urge all members of the Bar to read the Review of Sexual Harassment in Victoria’s Courts here and the Report of the Review of Sexual Harassment in the South Australian Legal Profession here.

The ABA issued a statement following the release of the reports, reiterating its position of zero tolerance of sexual harassment at the Bar and acknowledging that the institutional framework of the Bar, including the implicit power imbalances and its hierarchical structure, perpetuates these unacceptable behaviours. Sexual harassment cannot be eradicated from the legal profession if people fear that they will not be heard or may face repercussions from speaking out, or that perpetrators will be protected. Sexual harassment is illegal and unacceptable in any workplace and must not be tolerated at the Bar. The ABA’s statement is here.

As the national representative body of Australia’s independent Bars, the ABA recognises our responsibility to work towards a nationally consistent approach to effect real and lasting change. The Diversity and Inclusion Committee of the ABA has been commissioned by the ABA Executive to review the Victorian and South Australian reports and develop an implementation plan, working closely with State and Territory Bar Associations.

“Power and Consent”

This week we released the second in the ABA’s podcast series in which Kate Eastman SC, Chair of the ABA’s Diversity and Inclusion Committee spoke with Rachel Doyle S.C., Barrister at the Victorian Bar and author of a new monograph “Power and Consent”, published by Monash University Press. I commend the book. In the podcast, Rachel speaks about what led her to write the book, and puts forward some “red flags” as a practical way of stopping harassment. Please listen to the podcast here.

The ABA also welcomes news that Commonwealth Attorney-General Michaelia Cash announced that Parliament will strengthen protections against sexual harassment in the workplace under the Sex Discrimination Act and the Fair Work Act to include politicians and judges, together with adopting many of the other recommendations of the Report of the National Enquiry into Sexual Harassment in the Workplace (Respect @ Work Report). The ABA supported the recommendations of the Report when it was delivered in a statement you can read here and we are heartened that the new Attorney-General has announced the Government now will move to implement many of the recommendations.

In late March, I was among a number across the profession who responded to questions from the media about mechanisms to address gender parity at the Bar and on the Bench. It is the ABA’s, view that it is important that the judiciary reflects, and is seen to reflect, the community that our judicial system serves, and it can only be a good thing if disputes and proceedings are resolved by calling on collective wisdom drawn from different personalities, genders and experiences. Addressing and overcoming the barriers and behaviours that impede diverse representation at the Bar is such an important priority of the ABA. Subscribers to Lawyerly can read the article here.

National Conference: Re-emerging from the pandemic

2020 was an enormously significant year that will have lasting impact on our profession and our nation and the fall-out from the pandemic continues to play out in 2021. I’m delighted that we will have the opportunity to reflect on how our country, the courts, practitioners and administration of justice has changed at the 2021 ABA National Conference, in Melbourne on 16 – 18 September. The theme of the Conference is “RE-EMERGE. The Australian Bar after COVID-19: Energised, Innovative, Enduring”. This will be the first opportunity following the pandemic for members of the Bar, judiciary and others across the legal profession to come together at a national level. By September, we will be in a good position to assess and reflect on questions such as: what will be the long-term impact of the pandemic; what have we learned about our adaptability and resilience; what do we need to do to ensure we deliver value, earn respect and remain relevant in the justice sector and in society?

The conference will open on the afternoon of Thursday 16 September, with a keynote address by the Hon. Susan Kiefel AC, Chief Justice of the High Court of Australia, followed by an international keynote by the legal futurist Prof. Richard Susskind OBE. The full day program on Friday 17th and the morning of Saturday 18th will take attendees on an in-depth and reflective journey around issues such as the future of our federation, the psychological impacts of the pandemic, what future courts, juries and remote justice might look like, what is the lived experience of discrimination within our profession, how we address the ethical issues that have beset us and how our clients view us, and culminating in a War Room in which a high-profile cast of house-hold names hypothesise about the impact of the next pandemic. We’re planning a good mix of black-letter law topics and those that consider our personal, professional and social journeys as we re-emerge from the pandemic.

We’re hoping that as many of you can join us in person in Melbourne as possible. We will be offering live-streaming of the conference for those unable to attend in person. Please save the date. More information is on the ABA website here. Registration will open soon.

Silks’ bows in Canberra

I’m delighted that Silks’ Bows before the High Court of Australia, and the ABA Silks’ Dinner will take place on 2 August this year. In consultation with the High Court, we delayed these events from February 2021. This is an important event that recognises the achievement of barristers attaining Senior Counsel, and underscores the collegiality of our national Bar and the critical role that we play the administration of justice. The ABA Executive and I are looking forward to meeting the 2020 cohort of silks and celebrating their success.

Supporting lawyers in Myanmar

I am sure that many readers, like me, have looked on in horror at the use of military force to dissolve parliament, break-up protests and detain civilians in Myanmar. There have been credible reports of harassment and detention of lawyers for challenging the legality of their clients’ detention, and for filing legitimate cases. We have also noted reports that judges at all levels of courts have been dismissed without valid cause, and some placed under unlawful detention.

The Australian Bar Association and the Law Council of Australia issued a joint release last month urging Myanmar’s military government to immediately release all lawyers, judges and others detained unlawfully; take immediate, meaningful steps to enable lawyers to carry out their professional duties safely and independently, and protect them against intimidation, threats and reprisals; and guarantee to all persons due process rights in accordance with the rule of law, particularly the right to effective access to independent, competent legal assistance at all stages of the criminal process. You can read the release here.

SAVE THE DATE - RE-EMERGE 2021

06 May 2021

In a full program over three days, Re-emerge 2021 will bring together leaders from the judiciary, the Bar, the profession, politics and the media, from across Australia and internationally, to discuss topics.

Read more here

ABA Podcast #2

06 May 2021

In this second ABA podcast, ABA President Matthew Howard SC and Kate Eastman SC, Chair of the ABA Diversity & Inclusion Committee, speak with Rachel Doyle QC, Barrister at the Victorian Bar, about her book "Power and Consent" – what prompted her to write it, how to combat sexual harassment at the Bar and in the legal profession, and some practical “red flags” indicative of when an advance may be unwelcome. You can listen to the podcast here.

Statement on the release of the Victorian Review into Sexual Harassment in Victorian Courts and the Report of the Review of Sexual Harassment in the South Australian Legal Profession

20 April 2021

The Australian Bar Association (ABA), as the representative body of all Australian state and territory Bar Associations, is committed to addressing all forms of harassment, including sexual harassment, at the Bar and in the legal profession. The ABA recognises the devastating impact that sexual harassment can and does have, and has had, on victim-survivors, including causing them to leave the profession. The conduct revealed in the Victorian and South Australian reports released this week also undermines public confidence in the legal profession and the administration of justice.

The President of the ABA, Matthew Howard SC, said “The Victorian and South Australian reports released this week expose again the dark behaviours that unchecked power imbalances and hierarchical structures can perpetuate. Sexual harassment cannot be eradicated from the legal profession if victim-survivors fear that they will not be heard or may face repercussions from speaking out, or that perpetrators will be protected.

“Sexual harassment is illegal and unacceptable in any workplace and must not be tolerated at the Bar. As the national representative body of Australia’s independent Bars, the ABA recognises our responsibility to work towards a nationally consistent approach to effecting real and lasting change.” Mr Howard added.

The Diversity and Inclusion Committee of the ABA has been commissioned by the ABA Executive to review the Victorian and South Australian reports and develop an implementation plan. The ABA will work closely with State and Territory Bar Associations.

The Review of Sexual Harassment in Victoria’s Courts is here.

The Report of the Review of Sexual Harassment in the South Australian Legal Profession is here.

The ABA’s statement of zero tolerance of sexual harassment is here and its Diversity and Inclusion Principles are here.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

View the PDF here

The Law Council of Australia and the Australian Bar Association condemns violence towards lawyers in Myanmar

12 April 2021

The Law Council of Australia and the Australian Bar Association strongly condemn the ongoing intimidation, harassment, arbitrary arrest and incommunicado detention of lawyers and judges by Myanmar’s military (the Tatmadaw) since the unlawful coup d’état on 1 February 2021.

We are concerned by credible reports of lawyers being detained for challenging the legality of their client’s detention, and for filing legitimate cases that the military considers undesirable. In addition, judges at all levels of courts have been dismissed without valid cause, and some placed under unlawful detention.

These reprisals violate Myanmar’s obligation to respect, protect and fulfil the rights to life, liberty and security of person, the right to a fair trial, and the right to not be subjected to arbitrary arrest, detention or exile.

They also violate the fundamental guarantee, contained in the United Nations Basic Principles on the Role of Lawyers, that lawyers shall not be identified with their clients or their clients causes. The Basic Principles require Myanmar’s authorities to ensure that lawyers may perform their professional functions without intimidation, hindrance, harassment or improper interference; and are not subjected to or threatened with prosecution or administrative, economic or other sanctions for performing their professional duties.

Myanmar’s lawyers are also entitled to travel and consult with their clients freely, communicate with them confidentially, and to be afforded appropriate access to information to enable them to provide effective legal assistance to their clients. They are also entitled to freedom of expression, belief, association and assembly, and have a right to participate in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.

These reprisals indicate a deliberate and coordinated effort by the Tatmadaw to impede Myanmar’s lawyers from undertaking their professional duties – at a time when the rule of law is under unprecedented assault, and the Tatmadaw and Myanmar’s law enforcement personnel are reportedly committing serious and widespread human rights violations.

These developments occur against a backdrop of an already fragile justice system undermined by a lack of judicial independence, military influence over civilian court proceedings, widespread corruption and violations of basic fair trial rights – particularly the right to independent counsel.

We express our solidarity with the lawyers and judges of Myanmar seeking to uphold the rule of law, defend the rights of Myanmar’s people, and maintain Myanmar’s hard-fought progress in building accountable, effective democratic and justice institutions. In particular, we support the efforts of the Independent Lawyers’ Association of Myanmar for their courageous and principled advocacy to enhance the rule of law, access to justice, and the protection of human rights in Myanmar.

We urge Myanmar’s military government to:

• immediately release all lawyers, judges and others detained unlawfully.
• take immediate, meaningful steps to enable lawyers to carry out their professional duties safely and independently, and protect them against intimidation, threats and reprisals; and
• guarantee to all persons due process rights in accordance with the rule of law, particularly the right to effective access to independent, competent legal assistance at all stages of the criminal process.

Contact:

Fiona Wade: P. 0403 810 865, E. Fiona.Wade@lawcouncil.asn.au

Elizabeth Gray: P. 0401 561 554, E. media@austbar.asn.au

View the PDF here

The National Brief #2

16 March 2021

A hundred years ago

As I write, it is a hundred years ago since, in my home jurisdiction, Edith Cowan was elected to the WA Parliament, becoming only the second woman in the common law world (and the first in Australia) to do so. In 1923 she secured the passage of a private member’s bill – which became the Women’s Legal Status Act 1923 (WA) which, amongst other things, overcame the effect of the WA Full Court’s decision in Re Haynes (1904) 6 WALR 209 that had the effect of prohibiting women from practising as lawyers.

The theme for International Women’s Day this year was #ChooseToChallenge. In considering both the early movement towards equality in the legal profession for women and the theme of this year’s IWD, I cannot help but reflect on the things that are part of the current legal environment, which are being challenged and may, in the not-too-distant future, be thought of as weirdly anachronistic. You can read the ABA’s statement on International Women’s Day 2021 here.

Our Judicial Landscape

On 1 March, the Hon. Justice Jacqueline Gleeson took office as a Justice of the High Court of Australia. In her remarks, Justice Gleeson drew from the widely reported speech by the Hon. Tom Bathurst AC, Chief Justice of the NSW Supreme Court, at the opening of the 2021 Law Term, about the importance of public trust in the judiciary and the courts, and what measures can be taken to increase that trust. Justice Gleeson spoke about the provision of justice according to the law as proving the integrity of our courts. A recording of the Ceremonial Sitting to welcome the Hon. Justice Gleeson is here. A copy of the speech that I gave on behalf of the ABA is here, and you can read the original remarks by Bathurst CJ here.

Family and Federal Circuit Courts’ “Merger”

As readers will know, the Commonwealth Parliament recently passed the Federal Circuit and Family Court of Australia Act 2021 (C’th); and the Act has now been given royal assent.

The ABA’s position is that the real problems that litigants and children face within the system/s touching on families, outlined in the March 2019 ALRC Report, are not significantly addressed by the “merger” legislation. The ABA’s position was outlined in the media release here. I spoke with Fran Kelly on Radio National about the legislation, which you can listen to here. The ALRC Report is here.

Support for a Federal Judicial Commission

One of the issues that Bathurst CJ raised in his speech in February was about the integrity of the judiciary, which, “as an institution is dependent on the integrity of each and every judge…. Trust will only be maintained if judges maintain the highest standards of integrity in their professional, public and private lives.” The ABA expressed similar sentiments in our media release supporting the establishment of a Federal Judicial Commission, which we believe would help to reinforce trust in the administration of justice, and reflect community expectations of the transparent accountability of judicial officers outside of, and additional to, the existing appeal processes. The ABA media release is here.

The Bar, of course, is not immune to the challenges of public confidence, and it one of our priorities this year to proactively tackle the cultural behaviours at the Bar that perpetuate sexual harassment. I am very pleased that last month’s podcast, in which I spoke with the Hon. Kenneth Hayne AC QC and Kate Eastman SC, Chair of the ABA Diversity & Inclusion Committee, about respect at the Bar, achieved a wide public reception, thanks to reports in The Age / Sydney Morning Herald. The podcast, which you can listen to here, is just the first in a series we will be running through this year, to prompt discussion, debate and change in our profession. It is an issue that we need to address if the Bar is to remain relevant, trusted and respected by the community that we serve.

2021 ABA National Conference

Many of the issues about which I write this month will be part of the topics to be discussed at the forthcoming 2021 ABA National Conference, to be held in Melbourne on 16-18 September. The conference promises to be an exciting opportunity to debate issues facing the Bar, the profession, and the provision of justice in our community as we emerge into the post-COVID environment. I invite all readers to please save the date.

Australian Bar Association marks 2021 International Women’s Day

09 March 2021

The Australian Bar Association (ABA) marks International Women’s Day by celebrating women’s achievement in the law, acknowledging the challenges which women continue to face within the profession, and reiterating its commitment to fostering a respectful and inclusive environment for all at the Australian Bar.

President of the ABA, Matthew Howard SC, said, “In addition to the pandemic, this has been a challenging year for the legal profession, as reports of incidents and culture from our country’s highest court down and extending through all workplaces demonstrate. The ABA and its member Bars recognise the work that is still to be done and are working hard to ensure equality of opportunity at the Bar, without discrimination, harassment or sexual harassment. We call on all members of the ABA to #ChooseToChallenge.”

Kate Eastman SC, Chair of the ABA’s Diversity and Inclusion Committee said, “It is important on International Women’s Day to mark both the achievements of institutions in fostering a respectful and inclusive environment in which women can than thrive, but also challenging those cultures and behaviours that set us back. That’s why, on International Women’s Day 2021, we reiterate the commitment we made last year in adopting the ABA’s Diversity and Inclusion Principles, and in 2021 have embarked on a new campaign to address the obstacles to gender equality at the Bar and in the administration of justice.”

In February 2020, the ABA adopted and released Diversity and Inclusion Principles. The Principles are here. In February 2021, the ABA launched a series of podcasts to address the cultural issues that perpetuate sexual harassment at the Bar. The first of the podcasts is here.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

 

 

 

Address at the Swearing In of the Hon. Gleeson J as a Justice of the High Court of Australia to welcome the Honourable Justice Jacqueline Gleeson (Monday 1 March 2021)

01 March 2021

Speech by President of the Australian Bar Association Matthew Howard SC on the occasion of the swearing-in of the Honourable Justice Jacqueline Gleeson of the High Court of Australia.

View the PDF here

The National Brief #1

17 February 2021

Matthew Howard SC, President of the ABA

I am delighted to launch this first, nation-wide communication from the Australian Bar Association to barristers, legal professionals, students, and all those interested in the work of the ABA’s Committees, Council and members.

2020 unfolded through bushfires, a pandemic, and significant reputational issues for the legal profession. Never have we seen a year that has disturbed and disrupted so many in our profession and our community. As we settle into the “new post-COVID normal”, the ABA considers that this is the right time to launch a new monthly communication to our members, colleagues in the legal profession and the public – for there are issues that the Bar faces that need to be addressed nationally, and we believe that the ABA (with its member Bars) has a significant role to play to support adaptation, change and progress in our profession.

As I write, we all hope that the worst of the pandemic is over in this country. However, it is still with us and its extraordinary impact on society, our interactions and security, and the administration of justice will be long-lasting. That is also true for its impact on the profession and the Bar.

Profound questions have been raised of the justice system and access to it. Of course, these are not new problems, but the last year has brought them into stark focus. The Bar needs to support and help drive the reforms necessary for the benefit of the society we serve.

The ABA also has a role in articulating the value of counsel within that system, and to assist barristers to remain relevant – not for our own benefit but to continue assist in the administration of justice. The Bar does that by remaining excellent, independent and ethical in our dealings with the courts, our clients and the public.

How the post-pandemic legal and court environment will look, and the role of barristers within it, will be the theme of the ABA’s 2021 national conference, to be held 16-19 September in Melbourne. Please save the date!

While the pandemic impacted our profession dramatically, we should not underestimate the reputational impact of another event affecting the legal profession last year. The statement by the Hon. Susan Kiefel AC, Chief Justice of Australia, about the results of the Court’s independent enquiry into sexual harassment at the Court was unprecedented and sent shockwaves through both the profession and the community. The ramifications of the revelations will, and should, be widespread across the profession.

The ABA deplores sexual harassment and other harassment wherever it occurs. As I wrote in a statement on behalf of the ABA following the revelations, sexual harassment is particularly egregious when it involves the exploitation of a power imbalance. Such conduct has no place in any workplace, including the legal profession.

All members of the Bar must work to ensure that the Bar is a safe place for everyone, because if it is not seen as an environment that welcomes everyone – for women, for those identifying as LGBTIQ+, and for those from diverse cultural backgrounds – then the broader profession will move on without us. If we are not seen to reflect the community we serve, then we will become irrelevant. That will be a loss not only for our profession, but, because of the independence and quality of the representation we provide, it will be a loss for the society we serve and make the administration of justice more difficult. We need to continue to attract, develop and retain barristers of the highest standard. We improve the quality of legal services by bringing more varied experiences, perspectives and talents to the practice of law.

In February, the ABA adopted a set of Diversity and Inclusion Principles, guided by the belief that an Australian Bar should reflect the diversity of the Australian community it serves. This is no more than what the principles of justice, integrity, equity and the pursuit of excellence upon which the independent bars are founded require.

The Council of the ABA, assisted by its Diversity & Inclusion and Ethics Committees, continues to consider and work on measures that can support those Principles.

The ABA has launched a new podcast series which seeks to address this cultural issue. In the first of these, the Chair of the ABA Diversity and Inclusion Committee, Kate Eastman SC, speaks with the Hon Kenneth Hayne AC QC and me about what men at the Bar can do to eliminate sexual harassment in our profession. I invite you to listen to this first podcast here.

There must be equality and dignity in the law, as well as before the law. It is essential that the public has confidence that those responsible for upholding the rule of law behave appropriately.

I believe that the Bar’s future and relevance are intimately tied to its response. If the Bar does not respond appropriately and change, it will become irrelevant to the society it is to serve.

Finally, the ABA was invited to address the High Court at the recent ceremonial sitting to welcome the Hon Steward J. At the last moment I was unable to attend because of the ACT’s Health Guidelines following the snap lockdown of Perth. David Bloom QC very kindly read my address for the ABA – which can be found on the link here.

On behalf of the ABA, I wish all members a safe and productive 2021.

Matthew Howard SC

President, Australian Bar Association

 

ABA Podcast #1

17 February 2021

Eliminating sexual harassment is an imperative for the Bar. In this first ABA podcast, ABA President Matthew Howard SC speaks with the Hon. Kenneth Hayne AC QC and Kate Eastman SC, Chair of the ABA Diversity & Inclusion Committee, about steps that men at the Bar can take to support a culture of respect and diversity. You can listen to the podcast here.

ABA supports the establishment of a Federal Judicial Commission

17 February 2021

The Australian Bar Association joins the Law Council of Australia in supporting the establishment of a Federal Judicial Commission to promote confidence in the administration of justice.

The President of the ABA, Matthew Howard SC, said, “The establishment of a Federal Judicial Commission would be an important step to enhance the public’s confidence in the administration of justice.

“The ABA welcomes reports that the Commonwealth Attorney-General is considering the establishment of a Commission. Such a Commission would reflect the community’s expectations that there would be transparent accountability of judicial officers outside of, and additional to, the existing appeal processes.

“The ABA understands that the establishment of such a Commission requires careful consideration of the Constitutional provisions guaranteeing the independence of judges. Nevertheless, the ABA is confident that such a body may be established without infringing that. The ABA looks forward to working with the Government and other stakeholders to assist in bringing the Federal Judicial Commission into being”, Matthew Howard SC added.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all. 

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

View the PDF here

Proposed Family Court Merger Bill will not address the problems in the family law system

16 February 2021

The Australian Bar Association (ABA) notes that the proposed “Family Court Merger Bill” has been brought on overnight at short notice to be considered by the Senate today.

The ABA notes the Law Council of Australia has expressed its opposition to the “proposed merger” in a joint press release it issued today with other stakeholders.

“The ABA’s position remains that the ‘proposed merger’ will not significantly and positively impact on the problems that the family law system in this country faces,” President of the ABA, Matthew Howard SC said.

“As the ABA had stressed previously, the Family Court of Australia has been under-resourced for many years and before dismantling the court careful consideration must be given to the value that maintaining a properly resourced specialist family court would bring.

“The ABA fully supports steps being taken to address the practical challenges faced in the family law jurisdiction, including proper resourcing, implementation of harmonised rules and forms between the Family Court of Australia and the Federal Circuit Court and simplification of the Part VII of the Family Law Act.

“The ABA sees the principal problem with the family law system as being one of chronic under resourcing and the ‘proposed merger’ does not address the problems that necessarily flow from such under resourcing”, Mr Howard added.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554. 

 

 

 

View the PDF here

High Court of Australia Special Sitting Welcome to the Honourable Justice Steward – 1 February 2021

01 February 2021

On 1 February 2021, the High Court held a Special Sitting to welcome the Honourable Justice Steward as a Justice of the Court.

The address by Matthew Howard SC, President of the Australian Bar Association, delivered in Court by David Bloom QC, is here.

 

View the PDF here

Claim of Corrupt Family Court Judges

13 January 2021

Statement by the President of the Australian Bar Association, Matthew Howard SC

The Australian Bar Association (ABA) joins with the Law Council of Australia in rejecting the claim reported by Fairfax Media on 12 and 13 January 2021 that ‘the Family Court of Australia has many corruption issues’ including ‘corrupt’ judges.

“The ABA has the highest respect for the judges of the Family Court of Australia and for their independence and integrity,” Mr Howard SC said.

“More Australians have contact with the family law system and courts than perhaps any other part of our justice system. It is important that the Australian community has and can have confidence in these courts, the hard-working judges who serve in them and the justice process more generally.

“The reported comments were baseless, inappropriate and undermining of the courts administering the judicial system.

“As the President of the Law Council of Australia, Dr Jacoba Brasch QC noted, the judges of the courts including the Family Court of Australia and Federal Circuit Court of Australia perform their work in a ‘difficult, high-pressure environment that carries the risk of physical danger to themselves and their families’ and are ‘accountable for their decisions through processes including appeals and the Family Court’s and Federal Circuit Court’s Judicial Complaints Procedures’.

The Courts of Australia are open to the public and their judgments can be critically scrutinised but Mr Howard said “There is no place for unfounded claims about the integrity of the country’s judges.”

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.

MEDIA ENQUIRIES: media@austbar.asn.au

View the PDF here

ABA congratulates the Australian Bar’s new senior counsel

17 December 2020

The Australian Bar Association congratulates Australia’s new senior counsel.

President of the Australian Bar Association Matt Howard SC said, “The Australian Bar Association congratulates these 73 individuals on their appointment as senior counsel. Their appointment is an acknowledgement of their skill, independence, integrity and standing in the profession. We look forward to these members of the Bar continuing to serve our community and the administration of justice with independence and integrity.”

The ABA will celebrate the appointment of new Senior Counsel and Queen’s Counsel at its annual Silks’ dinner at the High Court of Australia on Monday, 2 August 2021 after the Court’s winter recess. Traditionally, the Dinner has been held with the Court’s ceremonial sitting at which the new silks take their bows at the start of the High Court’s legal year in February. However, in consultation with the Court, the ABA has moved the Dinner to August for next year.

Senior Counsel and Queen’s Counsel 2020

Commonwealth Queen’s Counsel

Timothy Begbie QC, Andrew Berger QC, Leo Hardiman PSM QC and Peter Quiggin PSM QC.

New South Wales Senior Counsel

Frank Veltro SC, Jason Downing SC, Andrew Fernon SC, Vahan Bedrossian SC, Ken McKay SC, Jodi Steele SC, Justin Hogan-Doran SC, Ben Katekar SC, Madeleine Avenell SC, Andrew Harding SC, Andre Zahra SC, Sue Chrysanthou SC, Richard Potter SC, Thomas Brennan SC, James Emmett SC, Christopher Withers SC, Angus Lang SC, Houda Younan SC, Sophie Callan SC, Justin Williams SC, Yaseen Shariff SC, Chloe Burnett SC, David Lloyd SC, Jonathon Redwood SC, Perry Herzfeld SC and Tim Castle SC.

Queensland Queen’s Counsel

Errol Morzone QC, Deborah Holliday QC, Gavin Handran QC, Christian Jennings QC, Jodie Wooldridge QC, Joshua Trevino QC, and Scott Hooper QC.

South Australia Senior Counsel

Meredith Dickson SC, Lucy Boord SC, Anthony Allen SC, Todd Golding SC, Benjamin Doyle SC, Kerry Clark SC, Stephen McDonald SC and Kristopher Handshin SC

Tasmania Senior Counsel

Gregory Barnes SC, Anthony Spence SC, Marcus Turnbull SC and Jacqueline Hartnett SC.

Victoria Senior Counsel

Donald Farrands S.C., Patrick Bourke S.C., Peter Fary S.C., Timothy Puckey S.C., Julianne Jaques S.C., Lisa Hannon S.C., Patrick Wheelahan S.C., Justin Graham S.C., Peter Wallis S.C., Megan Tittensor S.C., Alistair Pound S.C., Paul Vout S.C., Sandro Goubran S.C., Christopher Carr S.C., Daniel McInerney S.C., Georgina Coghlan S.C., Elizabeth Ruddle S.C. and Benno Ihle S.C.

Western Australia Senior Counsel

Graham Droppert SC, Penelope Giles SC, Alan Sefton SC, Matthew Curwood SC, Kim Lendich SC and Lindsay Fox SC.

The Australian Capital Territory and the Northern Territory did not appoint new Senior Counsel in 2020.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all. 

MEDIA ENQUIRIES: media@austbar.asn.au 

View the PDF here

ABA announces New Executive Team

09 December 2020

The Australian Bar Association has announced the election of a new executive team for 2020-2021.

Matthew Howard SC, a past-president of the Western Australian Bar Association, has been re-elected as President of the ABA for a second one-year term. Dr Matthew Collins AM QC is joined by Kylie Nomchong SC as Vice Presidents. Peter Dunning QC remains as Treasurer as does Ian Robertson SC as chair of the Advocacy Training Council.

Matthew Howard SC, President of the ABA, said, ‘It’s an honour to have been re-elected as President for a second year, and I would particularly like to welcome Kylie Nomchong SC as a new Vice President. Kylie brings impeccable academic and professional credentials, and also a commitment to social justice and human rights that are especially valuable to the ABA as we tackle the challenges of the new year. Kylie is part of an Executive team that is committed to the principles of diversity and inclusion, and will help ensure that the ABA will reflects the diversity and standards of the community which barristers serve.

“I am delighted that Dr Matthew Collins AM QC, Peter Dunning QC and Ian Robertson SC remain on the Executive, and would like to thank the outgoing Vice President, Michael McHugh SC for his dedicated and service to the ABA.

“The year 2020 has been an exceptionally challenging one for our community, for the justice sector, and for the members of our State and Territory Bars. As we look to 2021, there are two specific priorities on which the ABA Executive will be focused.

“The first is to work, together with the State and Territory Bar Associations, to assist the nation’s courts and tribunals as they manage the administration of and access to justice in a post-COVID-19 world. 2020 has been a watershed for the justice sector and the courts have never worked harder or had such demands placed on them. The ABA is committed to supporting the courts and the profession to meet the challenges that the justice sector faces, so that justice is accessible to all those in our community who seek it.

“The second is to ensure that the principles of diversity and inclusion that the ABA adopted in February 2020, and which it holds as core tenets of the profession, are supported by clear actions. We seek to build a collegiate and inclusive national association of barristers. The Australian Bar should reflect the diversity of the Australian community it serves. This means ensuring that all forms of sexual harassment, bullying and intimidation are expunged from our profession. This is no more than what the principles of justice, integrity, equity and the pursuit of excellence upon which the independent Bars are founded requires”, he said.

About the ABA

The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all. 

MEDIA ENQUIRIES:  media@austbar.asn.au 

View the PDF here

Publication of the Final Report of the Royal Commission into the Management of Police Informants

30 November 2020

The Australian Bar Association welcomes the publication of the Final Report of the Royal Commission into the Management of Police Informants. The implementation of the recommendations in the report will enhance public confidence in the administration of justice. The ABA will work with the Legal Services Council and the Law Council of Australia to implement the recommendations in the Final Report relating to it, particularly in relation to harmonising the duties of confidentiality and continuing professional development for barristers and solicitors across Australia.”

Matthew Howard SC

President

ABA Welcomes the Hon Justice Jacqueline Gleeson and the Hon Justice Simon Steward to the High Court of Australia

28 October 2020

The Australian Bar Association welcomes the announcement today by the Prime Minister, the Hon Scott Morrison MP, and the Attorney General, the Hon Christian Porter MP, of the appointment of the Honourable Justice Jacqueline Gleeson and the Honourable Justice Simon Steward to the High Court of Australia. 

“The ABA congratulates and welcomes both Justices on their appointment to the High Court. Both come to the Court with a wealth of experience in practice and as judges of the Federal Court of Australia,” President of the ABA, Matthew Howard SC said. 

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

View the PDF here

The Victorian Bar and Australian Bar Association raise concerns about the COVID-19 Omnibus Bill 2020

23 September 2020

Concerns about the criteria for appointment and power of “authorised officers” under the Bill have been raised by the Victorian Bar with the Attorney-General, supported by the Australian Bar Association 

Melbourne, 23 September 2020 – The Victorian Bar has expressed its concerns to the Victorian Attorney-General The Hon. Jill Hennessy about the criteria for appointment, and scope of powers, of “authorised officers” as part of proposed amendments to the Public Health and Wellbeing Act 2008 made by the COVID-19 Omnibus (Emergency Measures) Bill. 

The Victorian Bar’s concerns about provisions of the Omnibus Bill, tabled in Parliament on 17 September 2020, refer principally to the broad and generic criteria on which “authorised officer” appointments may be made under s. 30 of the Act. The proposed criteria potentially open the door for those who are not trained as health professionals to be appointed as “authorised officers”. This is of significant concern as it is imperative that the qualifications of these officers are relevant to the public health functions that they are intended to perform. 

The Victorian Bar is also concerned with the proposal that people may be detained by authorised officers for failure to abide by a public health direction on the basis of an authorised officer’s “reasonable belief”. This standard of validation is broad and subjective. The power to detain should be reviewed against an objective standard, for example, one of “reasonable likelihood”. Furthermore, the public interest would best be served if decisions made by authorised officers were reviewed by the Chief Health Officer (or senior delegate) within a short, stipulated period (preferably not longer than 24 hours). In the Bar’s view, the power of detention should be expressly based on a test of the least restrictive means reasonably available in the circumstances to achieve public health and safety. 

Wendy Harris QC, President of the Victorian Bar, said, “It is vital that, as the Government crafts powers to assist in the enforcement of public health and safety regulations, the individuals who are empowered to enforce those powers meet appropriate standards of professional knowledge and training, and the enforcement of those powers meets common and well-tested standards of objectivity. This is essential in order that public confidence is retained in the enforcement of public health measures, and that the rights of members of the community are protected.” 

Matthew Howard SC, President of the Australian Bar Association, said, “The Australian Bar Association fully endorses the Victorian Bar’s position on this important matter. Whilst the Victorian Government needs to take appropriate measures to manage this extraordinary health crisis, these should not be implemented without appropriate oversight and protections.” 

View the PDF here

ABA Joins The Law Council of Australia in expressing the need for caution in adopting the recommendations of the ALRC’s report ‘Corporate Criminal Responsibility’

03 September 2020

 The Australian Bar Association joins with the Law Council of Australia in expressing caution in adopting the recommendations of the Australian Law Reform Commission’s Report on Corporate Criminal responsibility. 

The Report contains recommendations allowing for the physical or mental element of an offence to be deemed to be that of the corporation if “any officer, employee, or agent of the body corporate, acting within actual or apparent authority” carries out the act or holds the relevant state of mind or otherwise directs, agrees or consents to a person carrying out the act. There is no requirement that such an employee be a “high managerial agent” of the company. 

‘The extension of criminal liability to a corporation for the acts of such a large group of actors has far reaching ramifications for the criminal law of this country. It is not clear why a company should be criminally liable for the conduct of such a wide group’, the President Matthew Howard SC said. 

‘At a time when Australia heads into a recession and when there is a need to stimulate business, a change to the law that makes a company vicariously liable for the acts of any employee of a company no matter what their position would have a sobering effect on anyone thinking of starting a business in this country or remaining in business’, Mr Howard said. 

The ALRC recommends that some conduct attracting a civil penalty could be characterised as criminal conduct if there is a ‘system of conduct or pattern of behaviour’. Caution needs to be exercised in adopting this recommendation. 

‘While there may be a need to dissuade a corporation viewing a civil penalty as a cost of doing business, the public, including corporations, should have the benefit of knowing when conduct will be criminal in nature. If the legislature has accepted that an offence should attract a civil penalty, the criminalisation of that conduct cannot be left to an undefined point in time’, Mr Howard said. 

‘No one doubts the need to hold companies to account, including imposing criminal liability, however, the diverse size, operations and functions of companies dictates that care must be taken in determining how far down the chain of command conduct should be sheeted home to a company’, Mr Howard said. 

‘The ALRC’s report is close to 600 pages long. It is the result of an enormous amount of work and deals with a very complex area of law. It is imperative that time be taken to carefully consider its recommendations many of which go to the heart of the nation’s concept of criminal responsibility’ said Mr Howard. 

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

View the PDF here

Australian Bar Association joins expression of disappointment at Commonwealth’s Justice Targets

03 August 2020

The Australian Bar Association (ABA) joins with national and state legal organisations to express its disappointment at the low justice targets set by the Commonwealth for the reduction in incarceration of First Nations people. 

Matt Howard SC, President of the ABA, said today “The ABA backs calls by the Law Council of Australia and the New South Wales Bar Association for a more ambitious justice target for the reduction of First Nations people in custody.” 

“Reducing the incarceration rate of Indigenous adults by only 15% by 2031 is a profoundly disappointing effort by all Australian governments. Long term structural problems such as the chronic over-incarceration of Indigenous Australians need to be met with long term structural changes. 

“First Nations have proposed a number of structural changes to decrease the rate of incarceration, yet government has been unwilling to embrace or implement them. 

“There are three well thought out and detailed measures which the ABA encourages the federal and state and territory governments to embrace: 

• Implement the Voice to Parliament arising from the Uluru Statement from the Heart 

• Raise the age of criminal responsibility from 10 to 14 years of age 

• Implement the recommendations of the Australian Law Reform Commission’s Pathways to Justice report”. 

“The minimal target that has been set sends a message that the government lacks ambition in this crucial policy area and reinforces the impression that government is unwilling to tackle the hard issue of over-representation of Indigenous people in the criminal justice system.” 

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

View the PDF here

IATC Presents - Effective Advocacy for Remote Trial Hearings

09 July 2020

SUNDAY, 12 JULY 2020

• 4:00 p.m. (Hong Kong, Malaysia, Singapore)
• 9:00 a.m. (United Kingdom)
• 10:00 a.m. (South Africa)
• 5:30 p.m. (South Australia) 6:00 p.m. (Victoria/NSW)

Topics to be covered:

• Assessing whether your matter is suitable for a remote hearing
• Protocols
• Use of Technology and documents
• Cross-examination including use of documents
• The Judge’s perspective

Speakers:

• The Hon. Mr. Justice Ashley Binns-Ward, Western Cape Division of the High Court, South Africa
• Anna Annandale S.C., National Advocacy Training Convenor, GCB of South Africa
• Michele O’Leary, One Pump Court, England & Wales
• Todd Alexis, S.C., Sixth Floor, Selborne Chambers, Sydney, Australia
• Andrew Chiew, Partner, Lee Hishammuddin Allen & Gledhill, Malaysia

100 places available.

Registration link: https://zoom.us/webinar/register/WN_Q987TEhLSPG_18hg1cp4Ig.

Registration will be confirmed by email.

View the PDF here

Judging and Advocacy in Virtual Court Hearings – An International Experience

26 June 2020

The COVID-19 Pandemic has only served to accelerate the use of remote hearings to determine disputes. As an important means of broadening access to justice, there is no question that such hearings are here to stay. This event brings together a diverse group of legal experts to discuss an international experience of judging and advocating remotely.

Topics will include:

• Protocols and guidance;
• The Judge’s experience and the advocate’s skill;
• Determining which cases are suitable for remote hearings;
• The IT platforms in use and experience of their effectiveness;
• What should you have in mind to ensure all goes to plan and the case is most effectively presented or heard.

More information including the list of speakers and registration instructions can be found on the Pump Court Chambers Website.

Statement by the President, Matt Howard SC

23 June 2020

The Australian Bar Association notes with concern the statement made today by the Chief Justice of the High Court the Hon Susan Kiefel AC regarding the findings of an independent investigation into claims of sexual harassment by former Justice of the High Court the Hon Dyson Heydon AC QC.

Regrettably as the Australian Human Rights Commission concluded in its April 2020 Report into Sexual Harassment in the Workplace, ‘Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces’.

The legal profession is no exception to this.

The ABA deplores sexual harassment wherever it occurs. Such behaviour is particularly egregious when it involves the exploitation of a power imbalance.

Sexual harassment and bullying have no place in any workplace including the legal profession. All members of the Bar must work to ensure that the Bar is a safe workplace for everyone.

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

View the PDF here

The ABA congratulates Jennifer Batrouney AM QC

08 June 2020

The Australian Bar Association congratulates former President Jennifer Batrouney QC for being awarded Member (AM) in the General Division Of the Queens Birthday Honours.

ABA marks 3rd anniversary of Uluru statement from the heart

26 May 2020

ABA MARKS 3RD ANNIVERSARY OF ULURU STATEMENT FROM THE HEART 

On the 26 May 2020 the Australian Bar Association marks the third anniversary of the Uluru Statement from the Heart. 

Three years ago today, First Nations delegates to the 2017 National Constitutional Convention at Uluru in the Northern Territory concluded four days of discussion by issuing a historic statement to the people of Australia. 

The Uluru statement calls for a Voice for First Nations peoples to be enshrined in the Constitution, for a Makarrata Commission to supervise the making of agreements or treaties, and for truth telling about the history of First Nations. 

Two years ago, the ABA, representing independent Bars from across Australia, expressed its support for the Uluru Statement call for a Voice in the Constitution. In doing so it joined with many other national bodies across Australian society in expressing their support for the Voice. 

Today it reiterates that support for achieving this important change to the Constitution for all Australians. 

This day is particularly important because 26 May 2020 is also both National Sorry Day and comes at the start of Reconciliation Week. It is a day on which we reflect on our history, on the devastating effects of past policy on First Nations and the need to redouble our efforts to address important structural reforms such as the inclusion of a Voice in the Constitution. 

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

View the PDF here

Parliamentary inquiry fails Australians at risk of family violence

22 May 2020

The Australian Bar Association (ABA) expresses its disappointment at the decision by a Senate Committee investigating domestic violence to report three months ahead of schedule without conducting a single hearing, receiving one submission or consulting with experts or survivors of family violence. 

The Legal and Constitutional Affairs References Committee inquiry into domestic violence “with particular regard to violence against women and their children” was established in February 2020 and due to report by 13 August 2020. Its terms of reference included inquiring into the adequacy, effectiveness and resourcing of policies, programs, services and responses to domestic violence across government and immediate and long-term measures that need to be taken to prevent violence against women and their children. 

President of the Australian Bar Association, Matthew Howard SC, said the Senate Committee’s decision was extremely disappointing and a missed opportunity to lead meaningful reform to protect children and families at risk. 

“Domestic violence is a scourge in our community at any time, and its prevalence is known to increase during times of crisis and stress. Front line service providers continue to report increased instances of domestic violence and abuse during the 2019-20 bushfire season and now the COVID-19 pandemic. Now more than ever, there is a need for comprehensive analysis of the policies, services and programs that are working well and what we can do better as a nation to address this issue. The Senate Committee had the means and opportunity to make a meaningful contribution to developing policy in this space to protect Australians at risk,” Mr Howard said. 

“Regrettably, the Committee has chosen not to take up that opportunity. The purpose of conducting hearings is to ensure relevant stakeholders are consulted, not for the sake of form or to “reinvent the wheel”, but to listen to the expertise of those who have experienced or work with the issues on a daily basis. That information should then be used to frame the issues and propose meaningful recommendations. 

“There is only one mention of ‘family law support services’ in the Committee’s report. This ignores the Government’s responsibility to resource and properly fund service providers and the courts who are working with families who have experienced domestic violence. Delays due to chronic under-resourcing continue to adversely impact families and their children awaiting interim and final hearings. 

“The establishment of the Committee in February 2020 was prescient and provided a valuable opportunity to hear from survivors of family violence, the community, the courts and key stakeholders on urgent and long overdue reform. The ABA echoes concerns raised by Centre Alliance in its dissenting report. If the Australian Parliament does not take the issue of family violence seriously, what message does that send to survivors of family violence in our community?” said Mr Howard. 

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

View the PDF here

Vale Philip Alan Selth OAM

05 May 2020

The Australian Bar Association mourns the passing of Philip Selth, former CEO of the Australian Bar Association and Executive Director of the New South Wales Bar Association, who died on 3 May 2020. 

Philip was the long-serving and dedicated Executive Director of the New South Wales Bar Association from November 1997 until October 2016. Prior to taking up his position at the New South Wales Bar Association he was the Pro Vice-Chancellor (Planning and Administration) at the Australian National University having had a distinguished career in public administration before that. 

Philip's involvement in the ABA commenced in April 1998. Whilst he was formally appointed CEO of the ABA in February 2015, he had previously provided several years of service, leadership and support to the ABA. Philip had the foresight to recognise the imperative for a strong, independent national bar and that integral to this was the central role the ABA could play, both in terms of representing members of the Bar nationally and also in developing policy and a law reform agenda. Perceiving what was required to bring this about, he became a driving force for constitutional change to the ABA to achieve the necessary renovation and modernisation of its governance and activities. In recognition of his enduring high service over many years, he was honoured with Life Membership of the ABA in 2016. 

Philip was instrumental to the introduction of the National Australian Bar Association Rules, describing the settling of these as constituting one of his proudest achievements throughout his long career. Regarding them as a crucial step in the recognition of an 'Australian Bar', Philip strongly believed that the pursuit of their development and enhancement are 'properly the role of the profession, not one to be picked up by default by some government agency'. He maintained a lofty perception of the role of the profession in a democratic society, its independence being essential, and accordingly placed a very high importance on the profession's development of these rules, the backbone of its ethos. This informed his advocacy of a national profession and, to secure its achievement, he was at the forefront of the development of the Uniform Law including ensuring the ABA's statutory role of recommending a member of the Legal Services Council to the Attorney-General. 

In his role as Executive Director of the New South Wales Bar Association, and recognising the toll of the unrelenting challenges facing barristers, he championed the establishment of BarCare. BarCare is an integral part of the Bar community providing assistance to barristers who are experiencing difficulties in their professional or personal lives. Also amongst his proudest work, there is, no doubt, many a barrister and their family who remains extremely grateful for service that was derived from foresight and compassion. For, while barristers are almost always the support for others amidst the unpredictable vicissitudes of litigation, they often neglect to protect their own well-being. Recognising the importance of such an initiative, similar schemes have since been created in some other states. Recently, working with the local bar associations, the ABA rolled this out nationally to help members through the current COVID-19 crisis. 

To say that Philip was dedicated to his work for the Bar is an understatement. He described himself in Justinian just prior to his retirement as a 'Grumpy old workaholic'. He immensely enjoyed working for both the New South Wales and Australian Bar Associations, an enjoyment that flowed from the many friendships he had formed at the Bar, coupled with his sincere and deeply held reverence for the rule of law along with a deep conviction that essential to its maintenance, and to the administration of our system of justice, was the existence of a flourishing independent referral Bar. 

Philip was always generous with his encyclopaedic knowledge of all things to do with the Bar nationally and the ABA as an organisation. He was welcoming of newcomers, encouraging of them to find their place, to feel at home and make a contribution. He was possessed of a wicked sense of humour and it was always a pleasure to be in his company. He inspired great loyalty from those who worked for him and who were fortunate to be mentored by him. 

Philip was highly respected by all branches of the profession, not any easy respect to achieve. Perceiving that at the core of the profession was service to the public, he was passionate about access to justice and the right to representation. He was a great servant of the Bar. If ever he was able to contribute or help, he was always willing to go out of his way to assist. No job was too large, or too small for him. He was that man you could rely on to source a spare jabot for a nervous new silk at the silks bows’ in the High Court or the person who had the courage to have difficult conversations with politicians or the heads of jurisdiction on behalf of the Bar, its sure and certain champion. His email address says it all: @pleasefixall. 

Philip is survived by his wife Frances and son Alexander. Throughout his career he made an enormous and invaluable contribution to the national Bar and the ABA for which we are very grateful. He will be sorely missed by the profession. 

Vale Philip Selth 

On behalf of the Council of the Australian Bar Association 

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

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