InBrief

Life membership

The Bar Council resolved by acclamation that Michael Slattery QC, the association’s immediate past-president, be appointed a life member of the Bar Association for his exceptional service to the Bar Association and to the profession of the law.

Forbes Society Lecture

On 8 November 2007 the president introduced Mr Andrew Tink’s address at the annual Forbes Society Lecture.� Mr Tink spoke about his research on WC Wentworth which is to be published in the near future. The president advised that the event was very well attended and Mr Tink’s speech was interesting and entertaining.

Meeting with Attorney General John Hatzistergos

On 19 November the president and the acting executive director met with the attorney general.

New federal attorney-general

The president advised that the new federal attorney-general is the Hon Robert McClelland MP.� She had sent a letter of congratulations that afternoon.

The former NSW attorney general, the Hon Bob Debus MP had been appointed as minister for home affairs and territories which may include other legal areas.� The president commented that the appointment of Mr McClelland and Mr Debus was encouraging in terms of advancing public debate on a Charter of Rights.

The president also advised that she had received a letter of congratulations from Liz Broderick, the sex discrimination commissioner.�

Kirby portrait

On 19 November the president attended the unveiling of the portrait of Justice Michael Kirby at the NSW Court of Appeal. The event was well attended and Kirby J acknowledged the generosity of the Bar Association in relation to the portrait.

Law Council director’s meeting

On 1 December 2007 the president attended the Law Council of Australia directors’ meeting in Canberra.� The minutes have been circulated to all members of Bar Council by e-mail.��

2007 silks donation

On 11 December 2007 the president attended a function in the association’s Common Room to mark the handover of the 2007 silks donation of $67,000 to the Indigenous Literacy Project. The project is a partnership between the Fred Hollows Foundation and the Australian Book Industry. Their aim is to help raise urgently needed funds to improve literacy in remote Indigenous communities.� Speakers at the event included Gaby Hollows, David Gaunt from Gleebooks and the author Tara June Winch.

Funeral for the Hon Gordon Samuels AC QC

On 13 December the president attended the funeral for Gordon Samuels AC CVO QC, former governor of New South Wales, justice of the Supreme Court of New South Wales and president of the New South Wales Bar Association.�

Meeting with Liz Broderick, Commonwealth sex discrimination commissioner

The president met with Liz Broderick on 8 January.� Matters discussed included attracting women to come to the Bar, and retaining women at the Bar, and difficulties they faced such as child care and court hours.�

Meeting with Hugh Macken, president of the Law Society of New South Wales

The president advised that on 10 January she met with the president of the Law Society of NSW.

Law Reform Commission report: jury selection

On 9 January the president had released a media release ‘Bar Association Supports Improvements to the Jury System’ and given a number of media interviews in response to the public release of the LRC report ‘Jury Selection’.

Media training

The president advised that she and the senior vice-president undertook media training with Anna Grutzner of Fenton Communications on 15 January.� They both found it to be very useful.

Opening of the 2008 Law Term

On 29 January the president attended and spoke at the Catholic Mass and the Anglican Service for the opening of the 2008 Law Term. She would be attending the Jewish service on 1 February and the Greek Orthodox Service on 5 February.

High Court senior counsel bows ceremony and Australian Bar Association Dinner

The president, along with the immediate past president, senior vice-president and executive director, attended the bows ceremony for the 2007 silks at the High Court of Australia on 29 January 2008. They later attended the dinner hosted by the Australian Bar Association, at which Bathurst QC took over as president of the Australian Bar Association.

2008 Bench and Bar Dinner: 9 May 2008

The president advised the Bar Council that she had asked Jane Needham SC and Brad Hughes to be Ms Senior and Mr Junior respectively for this year’s Bench and Bar Dinner.� The guest speaker would be Justice Susan Kiefel.

Finance Investment and Audit Committee

The treasurer proposed that a new Finance, Investment and Audit Committee be established.� He suggested that the committee of five consist of the treasurer, two other members of the Executive and two members of the Bar Council.

The Bar Council discussed the proposal. The president asked that the senior-vice president represent her on the committee.�

The Bar Council agreed to the establishment the Finance, Investment and Audit Committee.� The Bar Council further agreed the new committee would be comprised of the senior vice-president, junior vice-president and treasurer, with the other Bar Council representatives being Healy and McHugh. Notice of committee meetings will be provided by the treasurer in advance, to enable any other interested Bar councillors to attend the meetings.

Legal Assistance Referral Scheme: use of mediation

The Bar Council discussed the memorandum on the Legal Assistance Referral Scheme.

The Bar Council resolved that:

1.�the information that LARS requires an applicant to provide in any application for legal assistance include whether or not the applicant is willing to mediate the dispute;

2.�any barrister advising LARS on whether a matter has reasonable prospects of success be required to consider whether mediation could assist in resolving the dispute and, if so, to make such a recommendation;

3.�the Bar Council, in considering whether it should exercise its discretion to provide referral assistance, consider whether mediation would be appropriate and the applicant’s willingness to mediate; and

4.�LARS be extended to permit clients who wish to mediate their dispute with the other party (whether or not litigation has already begun but subject to the existing requirement for assistance that litigation is at least foreshadowed) to seek the assistance of a barrister as a legal representative for the mediation and/or the services of a barrister as mediator.

District Court Rules Committee extraordinary meeting

The president proposed that the questions raised by the District Court Rules Committee be referred to the Criminal Law Committee.

The Bar Council agreed with the president’s proposal.

The year ahead

The president spoke to her memorandum and outlined some of the issues she would like to pursue during the next 12 months.

The Bar Council supported the president’s proposal to establish a working party on impaired barristers.� Bernie Coles QC offered to chair the committee, which should also include Ian Butcher, Helen Toner, a registered psychologist and Dr Michael Diamond, consultant psychiatrist.�

The Bar Council endorsed the president’s proposal to establish a working party to look at the relationship between the Bar and the community.� The council agreed that the members of this group would include Cunneen SC (chair), Ash, Traill, Fran�ois and Holz.

2008 CPD regional mini-conferences

The president spoke to the memorandum from the deputy director, professional development concerning non NSW barristers and regional solicitors attending CPD regional mini-conferences.� She advised that non NSW barristers are not be subsidised by NSW barristers.� The conference fees for this year will be:

NSW barristers and members��$140 Non-members����$200 NSW barristers and members��$170 (late registration) Non-members����$230 (late registration)

The Bar Council resolved to endorse these arrangements.

The Bar Council noted that the Professional Development Department was considering increasing the fees paid by solicitors so that they are more in line with the fees charged by the Law Society and its agencies for CLE conferences.

Delegation of Bar Council’s functions under the Legal Profession Act

Noting the provisions of clause 16 of Schedule 9 of the Legal Profession Act 2004, the Bar Council resolved under s52(2) of the Legal Profession Act 1987 to delegate to each of the Professional Conduct committees as constituted from time to time all functions which the council may exercise under Part 10 of the Legal Profession Act 1987 save and except for the function of making a determination under the Act under s155 and s155A of the Act.

Further resolved under s696(2) of the Legal Profession Act 2004 to delegate to each of the Professional Conduct committees as constituted from time to time all functions which the council may exercise under Parts 2.4 and Chapter 4 of the Act and under the Legal Profession Regulation 2005, save and except for the functions of making a determination under the Act to refuse to grant or renew, to suspend, cancel or impose conditions on a local practising certificate to practise as a barrister, the functions of making a complaint under Chapter 4, making a determination under s506, dismissing a complaint under s511, modifying a complaint under s535, making a determination under Part 4.5 and making a compensation order under Part 4.9.

Further resolved under s531A of the Legal Profession Act 2004 to appoint the executive director, the director, professional conduct and each of the deputy directors, professional conduct to be an authorised person for the purposes of Part 4.4 of the Act (Part 4.4 also applies to show cause events under Division 7 in Part 2.4 of the Act).

Further resolved under s696(2) of the Legal Profession Act 2004 to delegate to the executive director, the director, professional conduct and each of the deputy directors, professional conduct the powers and functions of the Bar Council to issue notices which may or are required to be issued under the Legal Profession Act 2004.

Further resolved to delegate to the executive director the powers granted to and the functions which the council may exercise under Part 2.4 of the Legal Profession Act 2004 and under the Legal Profession Regulation 2005 with respect to disclosures made under s55 of the Act by holders of practising certificates or disclosures made by applicants for renewal of practising certificates in respect of convictions for any offence, other than a serious offence or a tax offence, save and except for the powers of and functions of making a determination under the Act to refuse to issue, to cancel or to suspend a practising certificate as a barrister.

Further resolved to delegate authority to the executive director to approve, subject to consultation with members of the Executive and, where appropriate PCC chairs, financial and medical experts nominated by barristers for the purposes of financial management and/or medical conditions being attached to their practising certificates.

Further resolved, in respect of compliance with conditions attached to practising certificates, to delegate authority to the executive director to make determinations as to:

1.�whether time for compliance with a condition is extended;

2.�whether a barrister has satisfactorily complied with a condition; and

3.�whether the nature and extent of any non compliance with a condition is such that there is no requirement for it to be brought to the attention of the Bar Council.

Further resolved that in exercising these delegations the executive director consider whether before making a determination the matter should be discussed with a member of the Bar Council Executive, PCC chair or relevant financial and medical experts.

Further resolved that in respect of any applications for renewal of practising certificate 2008/2009, in respect of which applicants have not complied with continuing professional development requirements by 31 March 2008, the executive director, in consultation with the president where necessary, is authorised to issue a local practising certificate to such applicants with conditions 1 and 2 below attached pursuant to s50 (3) (a) (i) of the Legal Profession Act 2004:

1.�That the applicant undertake and complete all outstanding continuing professional development requirements by 30 June 2008.

2.�That the applicant, by 30 June 2008, provide to the executive director a statutory declaration confirming that the applicant has undertaken and completed all outstanding continuing professional development requirements for the year ended 30 June 2007 and providing details of such compliance.

NSW Barristers’ Rules: proposed amendments to the Rules in response to the request from the NSW Attorney General in connection with sexual assault matters.

The president spoke to the proposed amendments to the NSW Barristers’ Rules that had been prepared by the Criminal Law Committee.� The proposed amendments had been discussed with the attorney general.�

The Bar Council resolved to amend Rule 35, and add Rule 35A, as follows;

35.� A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister's advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a)� are reasonably justified by the material already available to the barrister;

(b) �are appropriate for the robust advancement of the client's case on its merits;

(c)�are not made in order to annoy, harass, intimidate, offend, oppress, humiliate or embarrass the person; and

(d) �are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

35A� A barrister must not ask a question or pursue a line of questions in cross-examination of a witness if the barrister is of the opinion that the question or line of questions:

(a) is misleading or confusing, or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

For the purposes of this rule, the matters that the barrister is to take into account include:

(a) any relevant condition or characteristic of the witness of which the barrister is aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and

(b) any mental, intellectual or physical disability of which the barrister is aware and to which the witness is, or appears to be, subject, and

(c) the context in which the question is put, including:�

(i) the nature of the proceeding, and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates, and (iii) the relationship (if any) between the witness and any other party to the proceeding.

25 February 2008