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 the executive director for further information.

Meeting with Judge David Re of the Court of Bosnia and Herzegovina - 1 August 2008

The president advised that she and the executive director had met with Judge David Re, formerly of Frederick Jordan Chambers. Judge Re, an international judge with the Court of Bosnia and Herzegovina, was meeting with various persons in Australia who may be able to assist his court in providing training and other assistance. Judge Re will make a formal submission to the Bar Association in due course.

Meeting with the federal attorney-general

The president advised that she and the executive director had met with the Hon Robert McClelland MP for a wide ranging discussion. Matters discussed included the Bar Association’s long standing requests for amendments to s16 of the Income Tax Assessment Act 1936 and s55D of the Judiciary Act 1903; the federal government directly briefing the bar in appropriate cases; the government adopting an equitable briefing policy to ensure that women barristers receive their fair share of meaningful work; and the tender process for government legal work. The attorney-general accepted the president’s offer to review the July 2008 legal services reporting template to determine whether the template adequately covered the issues during this meeting.

The funeral of Matthew Bracks

The president advised that she had represented the Bar Association at Matthew Bracks’s funeral.�

15 Bobber – Judge Leonard Levy SC and Judge Michael Elkaim SC

The president noted that the 15 Bobber for Levy and Elkaim JJ had been well-attended.

Swearing in of Justice Nye Perram

The president advised that she had spoken at the Federal Court swearing in ceremony for Justice Nye Perram on behalf of the Bar Association, Law Council of Australia and the Australian Bar Association.

Bar councillors commented on how well the president’s address to the court had been received.

Medico-Legal Society of NSW – annual dinner

The president advised that she had proposed the toast to medicine at the Medico-Legal Society’s annual dinner.

Women in Leadership Forum

The president advised that she had participated with Sex Discrimination Commissioner Elizabeth Broderick and Ms Carol Kirby, senior solicitor, University of New South Wales at the Women in Leadership Forum organised by the law firm Bartier Perry and Purcell.

Membership renewals

The executive director had advised that 574 Class B members had renewed their membership for 2008 / 2009.� Fifty-four Class B members had not yet returned their renewal documentation. These members were being contacted to ascertain whether they wished to renew their membership.

Tutors and Readers Dinner – 25 July

The executive director advised that the senior vice-president and he had attended the 2008 Tutors and Readers Dinner, for which Richard Ackland, editor of Justinian, had been the guest speaker.

Academics and practising certificate fees

The executive director advised that 19 academics hold a NSW barrister’s practising certificate.� Academics are charged a reduced practising certificate fee.

Bar Council resolved that the attorney general’s approval be sought pursuant to s91 of the Legal Profession Act 2004 to the practising certificate fee for academics being the regional rate for their seniority category.

Review of the law of vilification in NSW – submission of the Human Rights Committee to the Bar Council

The Bar Council had a wide-ranging discussion about the issues raised in the Human Rights Committee’s submission on the law of vilification in NSW.

Bar Council that the NSW laws in relation to vilification be reviewed in order to assess the effectiveness and areas in which they could be improved and strengthened; that such a review involve consultation with a wide range of stakeholders and interested community groups, including the Bar Association.

It was further resolved that the Bar Association indicate to the NSW Government a willingness to participate and contribute to such review.

The Bar Council asked that the committee revise its submission so that the Bar Association’s� position on there being a statutory cap on damages is consistent with the association’s position taken in respect of damages to be awarded in the Equal Opportunity Division of the Administrative Divisions Tribunal (a cap of $100,000); the committee satisfying itself that paragraph 37 is an accurate representation of the director of public prosecution’s position as to why prosecutions have not been commenced and, in respect of paragraph 82, it being made clear that vilification should be subject to criminal sanction where there is an intention to promote hatred and not a mere likelihood.

Bar Council resolved that the Executive settle the final form of the submission to go to the government.

Proposal for the NSW Bar Dispute Resolution Centre

The Bar Council, noting that what was proposed was a licence agreement and that the council would have an opportunity to review the proposed agreement to be prepared by Counsel’s Chamber’s solicitors, resolved to approve the Bar Association negotiating an agreement with Counsel’s Chambers for the operation of ‘New South Wales� Bar Dispute Resolution Centre’ on the following terms:

1.�The Bar Association and Counsel’s Chambers agree that the National Disputes Centre, Level 1, 174 Phillip Street, Sydney, owned by Counsel’s Chambers, will be renamed ‘The New South Wales Bar Dispute Resolution Centre’.

2.�The Bar Association will own the trade mark, ‘The New South Wales Bar Dispute Resolution Centre’, and will license it to Counsel’s Chambers without charge to Counsel’s Chambers.� If the Bar Association chooses to register the trade mark, Counsel’s Chambers will be designated in the written agreement as an ‘authorised user’ within the meaning of the Trade Marks Act 1995 ( this is necessary to protect the Bar Association’s rights in the registered trade mark when the mark is not being used by the Bar Association itself).

3.�The Bar Association will register the business name, ‘The New South Wales Bar Dispute Resolution Centre’ and the domain name nswbardisputeresolutioncentre.com.au (or similar name) and will license those names to Counsel’s Chambers without charge to Counsel’s Chambers.� Counsel’s Chambers will retain the registered business name ‘National Disputes Centre’ but will not use it during the term of the agreement with the Bar Association.

4.�The agreement between the Bar Association and Counsel’s Chambers to be initially for three years, with two further options, each for three years.

4A.�� Counsel’s Chambers shall operate The New south Wales Bar Dispute Resolution Centre.

5.�Counsel’s Chambers and the Bar Association will both promote The New South Wales Bar Dispute Resolution Centre and will cross-link the web sites of The New South Wales Bar Dispute Resolution Centre and the Bar Association.� The Bar Association web site will contain sufficient details of the centre to enable disputants to consider this venue without necessarily seeking further information from the centre or its web site.

6.�Counsel’s Chambers Ltd� will offer a (initially) 5 per cent discount on the full day hiring fee for rooms for alternative dispute resolution processes if the mediator or alternative dispute resolution provider is (a) a member of the Bar Association, and (b) identified at the time of booking the rooms. The discount will still be given if the identity of the alternative dispute resolution provider changes after the booking is made but he or she is a member of the Bar Association.

7.�The operator of the centre, if requested to recommend a mediator or ADR practitioner, will recommend the Bar’s list of arbitrators and mediators published on the Bar Association’s website (noting that as from October 2008 mediators on the list will be accredited under the national standards).

8.�The Bar Association, if requested to recommend a venue, will recommend the centre.

9.�The operator of the centre will liaise with the Bar Association in relation to an information package to be provided to disputants and will notify the Bar Association of any changes in the information package.

10.�The Bar Association will provide a model mediation clause to the centre operator providing for nomination of a mediator by the president of the Bar Association to provide to enquirers who seek such a clause.

11.�The Bar Association will provide to the centre operator a model mediation agreement for provision to disputants in the event that they require one.

12.�Enquiries will be made to the centre operator rather than the Bar Association.�

13.�A small subcommittee will be formed from the Bar Association’s ADR Committee and Counsel’s Chambers to deal with issues that arise and will meet at least biannually. (The Bar Council was of the opinion that the chair of the committee and the association’s projects officer were appropriate representatives on this subcommittee.)

14.�Counsel’s Chambers will arrange for new signage, advertising material and new business cards to be designed for the centre and to be approved by the Bar Association.� Counsel’s Chambers and Bar Association will each pay 50 per cent of the costs.� Counsel’s Chambers will obtain quotes.

15.�Telephone calls to the centre will be answered by the centre operator with the words ‘The New South Wales Bar Dispute Resolution Centre’.

16.�A written agreement will be executed which will include trade mark, business name and domain name licences. The agreement will be prepared by Counsel’s Chambers’ solicitors. Counsel’s Chambers and the Bar Association will each pay 50 per cent of the costs.�

17.�The Bar Association will promote the centre regularly in its e-mail circular to members.

18.�The Bar Association agrees not to promote any other mediation/arbitration venue during the term of the agreement.

The executive director advised that Counsel’s Chambers had already considered the proposed points for negotiation and had approved all other than that the proposed discount for members of the Bar Association would be 5 per cent not 10 per cent as initially suggested, although they were happy to review the discount level once the volume of use could be better assessed.

Delegation of s48(9) Legal Profession Act 2004

The Bar Council resolved, pursuant to s696 (2) of the Legal Profession Act 200_4, to delegate to the executive director the power under s48 (9) of the _Legal Profession Act 2004 to refuse to grant a local practising certificate if the applicant has not successfully completed the Bar Exams.

Human Rights Charter – Submission from the Human Rights Committee to the Bar Council

The president advised that the Law Council of Australia at the directors meeting on 4 June 2008 resolved ‘That there is a principle agreement that there is a need for a charter or bill of rights at the federal level’.

The Law Council had asked each of its constituent bodies to indicate its preferred position on a number of issues so that the Law Council would prepare a document summarising the position of constituent members for discussion at the directors September meeting.

The Bar Council noted that in indicating to the Law Council its current preferred position on this range of issues it did not bind the Bar Council from expressing a different view once it had the opportunity to consider the document to be prepared for the September meeting. Accordingly, the Bar Council resolved that the Bar Association is presently minded to support the adoption of a charter of human rights for Australia with the following features:

1.�The sovereignty of the Commonwealth Parliament should be maintained.

2.�The human rights charter should be enacted by statute.

3.�The human rights to be protected in the light of international human rights law should include the following: equality before the law and equal protection of the law, right to life, protection from torture or cruel, inhuman and degrading treatment, freedom from forced work (slavery, servitude or compulsory labour), freedom of movement, protection of privacy and reputation, freedom of thought, conscience, religion, belief, expression, peaceful assembly and freedom of association, protection of families and children, right to take part in public life, cultural and property rights, right to liberty and security of the person, right to humane treatment when deprived of liberty, rights of children in the criminal process, right to a fair hearing, rights in criminal proceedings, right not to be tried or punished more than once, rights in relation to retrospectivity of criminal laws (‘human rights’). *

4.�Public authorities and those exercising a public power should be required to act in accordance with human rights unless required by statute to act otherwise.

5.�A member or senator introducing a Bill should be required to deliver a reasoned statement to parliament as to whether the Bill is compatible with human rights or not.

6.�A review should be conducted no later than five years after commencement to ascertain whether rights in the charter should be reviewed, whether human rights might more adequately be enforced and whether a right to damages should be added to the charter.

With respect to particular questions posed by the Law Council of Australia, the Bar Association makes the following statements:

7.�Limitation of human rights:

a.�Australia should adopt the approach to non-derogability contained in Article 4 of the International Covenant on Civil and Political Rights, namely there should be no derogation from the rights referred to in� Article 4(2); **

b.�Other rights may be derogated from in times of public emergency which threaten the life of the nation and only to the extent strictly required by the exigencies of the situation; ***

c.�Subject to (a) and (b) above, a charter should not permit any greater limitations on human rights than are permitted under international human rights law; in this regard the limitation provision found in s7 of the Charter of Human Rights and Responsibilities Act 2006 (Vic)+� is an appropriate formulation of permissible limitations on rights which international law recognises as subject to limitation.

8.�Courts should be required to interpret legislation in a way that is compatible with human rights, so far as is consistent with the statute’s purpose.

9.�The existing legal framework at the federal level fails to guarantee adequate protection for fundamental human rights.

10.�Notwithstanding that there are differing views on its constitutionality, a federal charter of human rights should empower a court to declare a law to be incompatible with the rights protected under the charter. Such declaration should not operate to invalidate the law, but it should require a response from parliament.

Notes

*� The paraphrased rights are taken from the _Charter of Human rights and Responsibilities Act 2006 (_Vic.) ** The rights referred to in Article 4(2) are the right to life; freedom from torture or cruel, inhuman or degrading treatment; freedom from slavery or servitude;� freedom from imprisonment for a contractual obligation; freedom from retrospective criminal laws; right to recognition as a person before the law; and the right to freedom of thought, conscience and religion. ***�Article 4(1) of the ICCPR

• Section 7. Human rights-what they are and when they may be limited … A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-(a) the nature of the right; and (b) the importance of the purpose of the limitation; and(c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

15 September 2008