President's Message November 2024

29/11/2024

It is an honour to be re-elected President of the New South Wales Bar Association.

In my first President’s message, one year ago, I observed that the Bar confronted change in the extension of the federal anti-money laundering regime to the legal profession and in the incursions of artificial intelligence. Those issues have materialised in recent days.

Anti-Money Laundering

The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 has today passed the Commonwealth Parliament with amendment.

The Bill, as enacted, differs importantly from the Bill as introduced and reflects a significant policy success for the Association. I express the gratitude of the Bar to all of the Executive of Bar Council, and the staff of the Association, especially Andreas Heger, for their tireless work over the past two months to promote the changes which have now occurred.

The Bill was introduced as part of the anti-money laundering and counter-terrorism financing (AML/CTF) Tranche 2 reforms, expanding and extending the AML/CTF regime to the legal profession. A description of the proposed reforms was provided in a previous President’s Message.

The Bill, as introduced, imposed regulatory obligations on barristers providing designated services, despite imposing the same obligations on the instructing solicitor. This would have produced a substantial and unnecessary burden on barristers and increased costs for clients, thereby reducing access to justice.

Following the introduction of the Bill, Michael Izzo SC, Catherine Gleeson SC, and a dedicated Association working group considered the potential effects of the proposal on the New South Wales Bar. When the Bill was referred to the Senate’s Legal and Constitutional Affairs Legislation Committee, the Association made a detailed submission and Michael Izzo SC appeared before the Committee on behalf of the Association, alongside President-elect of the Law Council of Australia, Ms Juliana Warner. In addition to providing answers to questions on notice, the Association sought, and provided to the Committee, advice from Tim Game SC and Hugh Atkin regarding the interaction between the Bill and the High Court of Australia’s decision in AB v CD; EF v CD [2018] HCA 58 (the Lawyer X Case). The Committee published its report on 13 November 2024.

Due to the advocacy by the Association and the Law Council of Australia, the Commonwealth Attorney-General, the Hon Mark Dreyfus KC MP, agreed to propose a Government amendment to the Bill to ensure that: “…a service is not a designated service if the service is provided by a person in the course of legal practice as a barrister on the instructions of a solicitor, if the instructions are given in connection with the provision of a designated service.” The Senate supported this amendment and the Bill was returned to the House of Representatives, which has today passed the Bill as amended by the Senate. Barristers accepting direct briefs will be subject to the AML/CTF regime.

The main elements of the reforms are due to commence on 1 July 2026. In the interim, stakeholders will work with the Government and AUSTRAC on amendments to the Rules that underpin the AML/CTF regime, and to devise guidance to assist with the new obligations. The Association will continue to advocate to address the effects of the reforms on the New South Wales Bar. In due course, the Association will provide guidance to barristers, including dedicated CPDs, in the period leading up to commencement.

Artificial Intelligence

Last week, the Chief Justice of New South Wales issued Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI). The Association was given an opportunity to provide input on the Practice Note before its publication, and welcomes its introduction.

The Practice Note sits alongside the Guidelines on Issues Arising from the Use of ChatGPT and other AI Language Models in Legal Practice, which the Association published in July 2023 and which can be accessed here. That document was developed to assist barristers in understanding their professional obligations when considering any use of AI language models in their practice. We intend to review this document following the publication of the Practice Note.

I encourage practitioners to attend the Chief Justice’s briefing on Gen AI on 2 December 2024 at 4.30pm in the Banco Court, Queens Square. The Practice Note will commence on 3 February 2025.

The Hon T E F Hughes AO KC

In that first message, I also celebrated the centenary soon to be achieved by the Hon T E F Hughes AO KC, a former President, and true leader, of our Bar.

Yesterday, on 28 November 2024, Hughes died, two days after his 101st birthday.

Hughes lived a rich and vivid 20th century life: from flying planes for the Royal Air Force aged 18, to participating in the Normandy beach landings; from his role as Attorney-General of the Commonwealth arguing many significant constitutional cases in the High Court, to his domineering presence at our Bar. The significance of his life is reflected in the way in which his death stopped events: extremely busy proceedings were yesterday suspended in the House of Representatives to allow the Government and Opposition to mark his passing. The Chief Justice of New South Wales issued a moving obituary. Hughes has had, and will continue to have, an enduring influence on the practice of law and the art of advocacy in this nation.

Well-being and collegiality

During the past year, the Association has sustained its focus on the mental and physical demands of practising at the Bar. The uptake of our Mental Health First Aid course was high: over 100 barristers, clerks and Bar Association staff have completed the course, with at least 1 participant from 55 different chambers and another 16 currently part-way through. That is at once sobering and encouraging. It reflects both the considerable demands imposed by the practice of law and a far greater willingness openly to acknowledge them. The success of the course has correlated to an uptake of the services of BarCare, which is a welcome development. The Association’s aim is to foster work places and practices that allow barristers to find meaning, collegiality, and balance in their work.

The past year has also, in various respects, been a difficult one for the administration of justice in our state and nation. Our Association has a diverse membership, spanning those at the private bar, Crown Prosecutors, Public Defenders, Parliamentary Counsel and Judges. We value each of our members, and recognise that each has a different, and differently demanding, role to discharge in the administration of justice. Although difficult in itself, the collaborative endeavour of the administration of justice goes best when we all do our best by each other. The Executive of Bar Council is always available to assist, however we can, any of our members who are experiencing hardship in the discharge of these roles.

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