President's Message

23/05/2025

It is a singular honour to be given the opportunity to serve as President of the New South Wales Bar Association.

I acknowledge the devotion given to that task by Ruth Higgins SC, and thank Ruth for her exceptional leadership over the last 18 months. Her sagacity, and capacity for sheer hard work, always performed with humour and equanimity, have served us exceptionally well.

I also acknowledge the work of our Executive Director, Andreas Heger, who will leave us shortly to live overseas for a period of time with his family. In his four years in the role, Andreas has reshaped the Association’s management structure and put in place systems and efficiencies which will see the continued smooth operation of the organisation for years to come.

Of particular note is Andreas’s implementation of multi-layered cyber security measures and the commencement of a large project to update the Association’s various software platforms, to form an integrated whole. Andreas’s term has also seen the relocation of the Association’s staff to new premises in Elizabeth Street. The importance of that to staff morale cannot be overstated.

Soon we will welcome Heather Moore to the role of Executive Director. Heather was engaged after a comprehensive search undertaken in the first few months of this year. She brings deep experience and a calm intelligence to the role, and I look forward to working with her over the coming 18 months.

The independent referral Bar is as relevant today to the functioning of the liberal democracy within which it operates as it has ever been. The Association’s objects, articulated in its constitution, reflect the essential role the Bar has always played in explaining and safeguarding the rule of law.

Our role in that regard is, I suspect, however, not always well understood by some in the broader community. A recent study published by the Australian Curriculum Assessment and Reporting Authority suggests that many school students lack an understanding of the roles of our civic institutions, including, presumably, that of the judicial arm of government, assisted as it is by the Bar. This underscores the continuing need for the Bar to explain the centrality of its role in our system of government. We are, if you will, the thin black line - a line which not only defends the rule of law, but which itself requires defending.

The Bar Association has, as a fundamental aspect of its remit, the defence and promotion of its individual members and of the Bar more generally as an institution. The defence, too, of an independent judiciary forms an equally important part of our function. I take this opportunity to emphasise the importance of civility and respect in public discourse. This is particularly so in respect of the criticism of judicial decisions, which is of course not confined, but tends often to be directed, to bail decisions. The Bar Association acknowledges that reasonable minds may differ on the question of whether bail ought or ought not to have been granted in the circumstances of a given case. But despite differences of opinion, it is never acceptable to subject judicial officers to unreasonable criticism in relation to decisions made in good faith. Respect for the decisions of the judiciary is fundamental to the rule of law. Where appropriate, a decision can be appealed or another application made.

Thankfully, we have not seen in Australia, in any concerted way, the sort of attacks which have been made recently by the executive on both advocates and judges, alike, in the United States. So prevalent are those attacks, that William Bay, the president of the American Bar Association, issued a figurative call to arms in a statement he made in March this year. Bay unsurprisingly emphasised the non-partisan nature of the Bar, as defender of the rule of law, and defended the vital role of the courts and of the lawyers who appear daily before them. He condemned efforts to cow that country’s judges and legal profession.

If barristers here are to provide fearless advocacy for their clients, and discharge their obligations as officers of the Court, it is criticial that they can operate viably. There is great disparity in the earnings of barristers across different practice areas. Contrary to popular opinion, not all barristers are wealthy. Indeed, many struggle. Many also undertake considerable volumes of pro bono work, and work on a contingency basis providing access to high quality legal representation for those who would otherwise not be in a position to pursue worthy causes of action. That is to be applauded.

Much of the criminal defence work performed by the Bar is funded through Legal Aid. The rates paid continue to be inadequate and pose real threats to the viability of some barristers’ practices. If that remains unaddressed, the results of the National Legal Aid Private Practitioners 2024 Census tell us that work offered at those rates will no longer be accepted by significant numbers at the Bar. That, in turn, threatens the administration of the criminal justice system itself.

Much work funded through Legal Aid is performed in the civil arena, too, particularly in the fields of care and protection, and family law, again at well below commercial rates. Commonwealth rates for counsel, which have not been reviewed since 2012, also fall well below New South Wales Crown rates, making it difficult for counsel to sustain large volumes of Commonwealth work.

The Bar Association will continue advocating for increases in legal aid and government rates for counsel.

The Association has, under Higgins SC’s Presidency, also sustained its focus on the mental and physical demands of practising at the Bar. The pressures of practice are real.

From 2023, the Bar Association began rolling out a fully subsidised Mental Health First Aid Course to chambers across NSW. This early-intervention course enhances mental health literacy and teaches skills to support individuals in crisis until professional help is available.

A majority of chambers in NSW now have a member or clerk who have undertaken the Mental Health First Aid Course. We anticipate that, by the end of 2024-25, at least 80 members from 48 chambers will have participated.

These numbers show the willingness of our profession to look out for each other.

The rate of uptake of the Mental Health First Aid Course also correlates with an increase in the number of members contacting BarCare. As I hope you all know, BarCare provides free, independent and confidential counselling for barristers and their families, with additional support for rural and regional members in finding local specialists.

Another key priority for the Bar Association has been managing the impact of the Commonwealth Government’s anti-money laundering and counter-terrorism financing regime on our profession.

The proposed reforms would have created significant administrative and regulatory burdens on barristers, duplicated responsibilities owed by solicitors under the reforms, and increased costs for clients, ultimately reducing access to justice.

Through the Bar Association’s sustained advocacy, an exemption was secured for work performed by barristers which is briefed through an instructing solicitor. It is important to note, however, that barristers accepting direct briefs will still be subject to the AML regime. The Bar Association will provide significant guidance to barristers, which will include dedicated CPDs, between now and the commencement of the reforms, due on 1 July 2026.

In June last year, the Bar Association published its Cybersecurity Guidelines for barristers. As sole practitioners, cyberattacks are one of the most pressing risks we currently face.

The Guidelines identify preventative steps that we should all take to protect against cybersecurity threats. In the event of a cyberattack, a failure to implement at least core security measures could result in significant financial, reputational or other harm. Such failure may even, in certain circumstances, involve a breach of the Barristers Rules.

The Bar Association has also been working closely with insurance brokers to obtain bespoke cyber insurance policies for the bar. Information on the first of these policies has been provided in InBrief. I urge all barristers to consider obtaining cyber insurance for their practice.

Generative AI models, too, will continue to pose challenges for the Bar, and in the practice of law more generally. The very existence of the independent referral Bar heavily depends upon our clients’ confidence that the advice and representation they receive is the product of detached consideration of their case by a trained professional bound by strict ethical standards. The guidelines for the use of AI models issued by the Bar Association and published on the website, point to a number of ethical and practical pitfalls in the use of this fast-evolving technology. I encourage all barristers to read and follow them.

Other matters of focus on the immediate horizon will include the recently announced inquiry into the operation of the doli incapax presumption, dilution of which the Bar Association has opposed. The Association will seek to assist the inquiry with submissions, which will undoubtedly also address the closely related matter of the minimum age of criminal responsibility. Proposed changes to workers compensation laws around psychological injury will also be the subject of continued advocacy, beyond submissions already made, and evidence given last Friday, to the Upper House Standing Committee on Law and Justice.

Eligibility for admission to the Bar, beyond qualification in law, is dictated solely by a person’s good character, and ability satisfactorily to complete the Bar examinations and the Bar Practice Course. Ours is a meritocracy par excellence. It is rightly to be expected then, that in a society as diverse as ours, that diversity will be reflected in our own composition. That is increasingly the case, but there remains work to do. I am committed to continuing to promote opportunities for those who might not otherwise have been inclined, or able, to pursue a career as a barrister to do so. To this end, I am delighted to announce, in addition to the many existing programmes run by the Association, that at the instigation of the Diversity and Equality Committee a pilot programme involving sending barristers into schools will commence in coming months, with a view to educating students about what we do, and, I hope, exciting in some an interest in a career at the Bar.

Diversity at the Bar, though laudable, is not simply an end in itself. A broadly representative Bar is vital to the public’s faith in our institution, and therefore to the Bar’s execution of its fundamental functions. That all those who qualify for the Bar should, by reason, alone, of their good character and status as barristers, deprecate all forms of discrimination, need hardly be stated. Indeed, I acknowledge that some feel it so axiomatic that it need not even be said.

It is noteworthy that for the first time in the history of the NSW Bar, there are more women in the Bar Practice Course than men. Twenty seven of the 51 participants in the current course are women. This follows the trend seen in recent years in the solicitor arm of the profession, and parity may therefore be expected to be maintained. Continuing work is required, however, on increasing the rates of retention of women at the Bar.

I thank the leadership of the Bar Association’s policy and practice committees for continuing to promote the drive for a representative profession, open and welcoming to all who are suitably qualified.

I look forward to serving as President.

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