InBrief

Matters reported elsewhere in In Brief are omitted from this summary of Bar Council business. Bar Council regularly considers requests by the attorney general, the courts and other agencies for advice on proposed legislation. Because that advice is sought on a confidential basis, it is not noted in this summary. Any member interested in a particular matter should contact either the relevant member of Bar Council or the executive director for further information.

Swearing-in of Justice Rein

The president reported that she spoke at the swearing in of His Honour Judge Nigel Rein SC as a justice of the Supreme Court of NSW on Monday, 5 May.�

Funeral of Alex Clout

The president and executive director had attended the funeral of Alex Clout on Tuesday, 6 May.� The attorney general was also in attendance.

Bench and Bar Dinner

The dinner was held on Friday, 9 May.� The president advised that she had received a large number of complimentary remarks about the evening. The interstate guests particularly had spoken of their enjoyment of the event.�

The Bar Council recorded their thanks to Katie Hall and Chris D’Aeth of the Bar Association staff for their enormous effort in making the dinner such a success.

Funeral of Brian Donovan

The president advised that she attended, read a lesson and sang in the choir at the funeral for his Honour Judge Brian Donovan QC on Monday, 12 May.� The executive director and many members of the Bar Council also attended.

Swearing-in for their Honours Len Levy S and Michael Elkaim SC

The president and executive director attended the swearing-in of Leonard Levy SC and Michael Elkaim SC as judges of the District Court of New South Wales on Thursday, 15 May. The attorney general spoke on behalf of the Bar.

Practicing certificate renewals

The executive director advised that 2107 practising certificate renewal notices had been issued. Four requests for fee waiver had been received, which he would discuss with the treasurer.

Commonwealth legal services purchasing

On Wednesday, 21 May the executive director and Slattery QC had attended a discussion seminar held by the Commonwealth Attorney-General’s Department on Commonwealth legal services purchasing.� The department is very of the need for the Commonwealth to brief equitably, and the cost savings that can be achieved by direct briefing of the Bar in some circumstances.� The executive director was working with Slattery QC on a submission to the department on its proposed common form package which is intended for mandatory use by Commonwealth agencies when tendering for legal services

Judicial appointments

The executive director advised that he had participated in a meeting of the Law Council’s Judicial Appointments Working Party. The executive director and Bathurst QC, in his role as president of the Australian Bar Association, were to meet on 23 May with Ken Martin SC, chair of the Law Council’s working party to discuss, in particular, the suggestion that the LCA should press for a federal judicial appointments commission.

New South Wales Barristers’ Rules, proposed amendments to 35 and 35A

The senior vice-president, as chair of the Rules Committee, advised that the revised proposal for amendment to the New South Wales Barristers’ Rules had been circulated to the Bar.�� The Rules Committee had met and considered the comments which had been received.� The SVP also advised that a formal advice had been obtained from Walker SC as to whether making the proposed Rules 35A and 35B to be added to the New South Wales Barristers’ Rules� would be a valid exercise of the council’s rule making power.

There was a lengthy discussion of the comments that had been received, including whether the rule was in any form discriminatory and what commitments, if any, had been given to the attorney general.

The Bar Council resolved to amend the New South Wales Barristers’ Rules by adding Rules 35A and 35B as follows:

35A. �Without limiting the generality of Rule 35, in proceedings in which an allegation of sexual assault is made and in which the person who is alleged to have been assaulted gives evidence:

(a) A barrister must not ask that witness a question or pursue a line of questioning of that witness which is intended: (i) to mislead or confuse the witness; or (ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.

(b) A barrister must take into account any particular vulnerability of the witness in the manner and tone of the questions he or she asks.

35B. �A barrister will not infringe Rule 35A merely because:

(a) the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or

(b) the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

The Bar Council approved the draft letter to the attorney general.

The executive director advised that a note explaining the Rule change would be sent out with the new practising certificates and in In Brief.� Details would also be posted on the Bar association’s web site.

Selection criteria for judicial appointments

The Bar Council resolved to send the draft reply to the attorney general once the footnotes were incorporated into the body of the letter.

The future involvement of the Australian Bar Association (ABA) in advocacy training

The senior vice-president, who is president of the Australian Bar Association, explained that the ABA had in the past twelve months conducted two very successful advocacy courses, one in Perth and one in Sydney. A significant part of this work had been undertaken by Greenwood SC, with help from individual Bar Associations. Greenwood SC is the chair of the ABA’s Advocacy Training Council.� The ABA Council was looking for two barristers from each constituent body to become members of the council.� An immediate role of the council was to consider the viability of an on-going national advocacy training program and a possible structure for the management of that program.

The Bar Council resolved that the Executive nominate two qualified association members to the Advocacy Training Council.

Recommendation to the Bar Council that the NSW Bar Association become a Registered Mediation Accreditation Body

The president spoke to the memorandum from the Alternative Dispute Resolution Committee.� She noted that registration would be at no cost.� The Bar needed to be active in developing a major mediation presence.

The Bar Council resolved that;

1.�That the Bar Council declare the NSW Bar Association to be a Recognised Mediator Accreditation Body under the Australian National Mediator Accreditation System Standards. .� 2.�That the Bar Association impose the following requirements for accreditation in addition to those stipulated by the standards:

(a)�All accredited mediators hold a NSW barrister’s practising certificate and the required professional indemnity insurance;

(b)�all accredited mediators be required to have five years experience as a legal practitioner before accreditation; and

(c)��those mediators who apply for accreditation other than as ‘experience qualified’ mediators demonstrate that they have achieved at least the 10 points of mediation experience as outlined in the current criteria for appointment.

3.�That only barristers who are accredited under the standards be selected for the District Court and Supreme Court mediators panels, subject to those barristers also having at least the experience as mediators that has been required in the past for inclusion on the panels.

4.�That, as accreditation under the Standards is for a period of two years and selection of mediators for the District and Supreme Courts lists of mediators are also for two years, applications for accreditation are made at the same time each year as the applications for selection for the court panels (that is, for the District Court panel in September 2008 and for the Supreme Court panel in September 2009).

5.�That the Bar Association use application forms substantially in the form of Annexures A and B to the committee’s paper of� recommendation as the application forms for ‘experience qualified’ mediators and new mediators, and for applications for selection for the District Court list of mediators.� The criteria for selection are still to be finalised.

6.�That the committee set up a mentoring scheme for barrister mediators.

The council recorded its appreciation of the work by the ADR Committee and the association’s project officer, Ms Kim Kemp, in developing this proposal

The Soqosoqo Duavata ni Lewenivanua (‘ United Fiji Party’ / SDL)

The Bar Council noted the correspondence from Mr Laisenia Qarase, leader of the SDL Party in Fiji,� expressing the party’s gratitude, and the gratitude of many other people in Fiji,� to Perram SC and Pepper for ‘answering our call for help in mounting a court challenge against the legality’ of the military regime. Their standing ‘ by those who are oppressed and denied their rights by the perpetrators of the military take-over, and those in league with them’ was ‘consistent with the finest traditions’ of the legal profession.

25 June 2008

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