Bar Council business for Thursday, 1 May 2008

02/06/2008

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.ï¿½ï¿½

The president reported on some of her activities on behalf of the Bar Association that she had attended since the last business and policy meeting of the Bar Council.ï¿½ She advised that a list of the other events would be provided in the minutes.

Meeting with Attorney General Hatzistergos

On Thursday 3 April the president, Odgers SC and the executive director met with the attorney general to discuss the Bar Associationâs concerns with aspects of the proposed criminal case conferencing trial, for which the enabling legislation had been introduced into the Legislative Council the night before.

General Meeting of the Bar Association, 7 April

The president reported on the general meeting of the Bar Association that took place on Monday 7 April in the Common Room to discuss the proposed changes to the New South Wales Barristersâ Rules. She referred to the record of the meeting that was included in the agenda papers.ï¿½ The president thanked those Bar councillors who had attended the meeting for doing so. The president noted that the attorney general attended at the latter part of the meeting and had answered questions from the floor. ï¿½ Commonwealth Bank and equitable briefing

The president advised that on 10 April she, the executive director and project officer (secretariat and research) met with Richard Coleman, acting general counsel, Commonwealth Bank and bank solicitors Paul Smythies and Lee Anderson to discuss the bank adopting the model Equitable Briefing Policy.ï¿½ After some discussion, the bankâs officers undertook to consider the policy and its implications for the bank. Subsequently Mr Smythies had advised the executive director that the bank would be adopting the Equitable Briefing Policy, and adding to its list of counsel to be briefed suitably qualified women barristers. Law firms the bank briefed would also be asked to adhere to the policy.

The executive director is separately discussing with Commonwealth Bank officers the bank providing loans at reasonable rates to junior barristers seeking to buy chambers.

Funeral for Peter McDowell and Memorial Service for Kim Santow

On Wednesday 23 April the president attended the funeral of Peter McDowell and in the evening, together with the treasurer and the executive director, the memorial service for the Hon Kim Santow AO held at the University of Sydney.ï¿½ Both services were extremely well attended and were fitting tributes to both men.ï¿½

Maurice Byers Lecture

Dame Sian Elias, chief justice of New Zealand, had given the 2008 Maurice Byers Lecture on Thursday 24 April.ï¿½ The president reported that, despite that being the evening before the ANZAC day long weekend, and raining, the event was well attended. Dame Eliasâ very interesting address will be published in a future edition of Bar News.

City of Sydney Council

On Wednesday 30 April the president, executive director and project officer (secretariat and research) had met with Louise Byrne and Susan Teasey, solicitors with the City of Sydney Council, to discuss how the council might more easily brief the Bar. The possibility of the council adopting the model Equitable Briefing Policy was also discussed.

Other meetings/events

â¢ï¿½CPD mini conference, Orange, Saturday 28 March (with executive director) â¢ï¿½Inaugural Healthy Breakfast, Common Room, Friday 27 March. â¢ï¿½Lunch with chief magistrate and deputy chief magistrates Helen Syme and Paul Cloran (and executive director), Friday, 27 March. â¢ï¿½University of Sydney Jessup Moot Reception, Wednesday 2 April (with executive director). â¢ï¿½Opening of âLegal Chameleonsâ, an exhibition of photographs by Mark Tedeschi QC, Justice Museum, Thursday, 3 April (with executive director) â¢ï¿½Meeting with Rebecca Irwin, prime ministerâs justice advisor, Wednesday 16 April (with director, law reform and public affairs).ï¿½ Matters discussed included a possible Commonwealth Charter of Rights and the Commonwealth directly briefing the Bar.

Discussion paper on selection criteria for judicial appointments

The president referred to the NSW attorney generalâs Discussion Paper on Selection Criteria for Judicial Appointments which the executive director had e-mailed to Bar councillors. Bathurst QC (chair), Pepper, Needham SC and Ash will prepare a report on the paper for consideration by the council at its meeting on 22 May.

Tabling of papers for Bar Council meetings

The president reminded Bar councillors of her memorandum of November 2007 which stated that âThe agenda and papers for Bar Council meetings will be distributed on the Friday preceding the scheduled meeting.ï¿½ Unless a matter is genuinely urgent (and some PCC matters will fall into this category), papers will not be added to the agenda after this time.âï¿½ She asked that if any councillor has a matter for Bar Council that it be submitted to the executive assistant by the Wednesday of the week prior to the meeting.

Bench and Bar Dinner

The executive director advised that some 640 guests would be attending the Bench and Bar Dinner.

Practising certificate and professional indemnity insurance renewals

The executive director advised that the attorney general had approved the practising certificate fees for 2008 â 2009. The attorney generalâs approval to the four submitted PII policies was still being sought. The president was settling a detailed letter to go out with the renewal notices.

Letters to the editor

The executive director asked that members of the Bar Council advise him if they were successful in having a letter to the editor printed on matters of interest to the Bar Association.ï¿½

Treasurerâs report

The treasurer asked Bar Councillors to read his tabled report and apologised for it not being possible to circulate the report prior to the meeting.ï¿½ He thanked the executive director and the finance manager for their assistance in briefing him on the current position of the Bar Association.ï¿½

The Bar Council agreed to refer the recommendations in the treasurerâs report to the Finance and Investment Committee (FIAC) for consideration.

NSW Barristersâ Rules, proposed amendments to 35 and 35A

The senior vice-president reported on the deliberations of the Rules Committee and their new proposal to amend Rule 35 and 35A of the New South Wales Barristersâ Rules.ï¿½ He advised that the new proposal was a compromise, but one that the committee thought principled and justified.ï¿½ He advised that the rule had been circulated to the Common Law Committee, Criminal Law Committee, Family Law Committee, director of public prosecutions and the crown prosecutors; the feedback had been very favourable.

The new proposal removes the suggested changes to rule 35 so that rule 35 would be unaltered from its present form and adds new rules 35A and 35B.

Rule 35A is directed solely to the cross-examination of complainants who make allegations of sexual assault, whether the proceedings are criminal or civil.ï¿½ Rule 35B qualifies the operation of the rule and picks up the substance of s275A (3) of the Criminal Procedure Act and s41(3) of the Evidence Act (as amended).

The senior vice-president recommended that the Bar Council approve the circulation of the proposed new rule for consideration and comment.

Rule 35 No change to rule as presently drafted â last amended 1997. In other words âprincipallyâ retained in 35 (c) and the categories are not expanded.

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;

(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.

Proposed Rule 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.

Proposed Rule 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 discussed the proposal and the possible courses of action.ï¿½ It gave consideration to all the submissions that had been received concerning the rule and the remarks made at the general meeting of the Bar on 7 April.

The Bar Council agreed that the proposed new rule be circulated to the membership for consideration and comment by Friday, 16 May.ï¿½ The note to the Bar would highlight the practice areas the change would cover and would ask for both supportive comments and/or possible changes.

The president agreed that a draft of the letter that would be sent to the attorney general when the new rule had been settled would be first circulated to the Bar Council.

The Bar Council recorded their thanks to the Rules Committee for the hard work they had put in over the past few weeks on this matter.

Silk Selection Committee and information session on silk application

The president spoke to her memorandum concerning membership of the Silk Selection Committee for 2008. She proposed that the members be the president, the senior vice-president, Tom Bathurst QC; Lindsay Foster SC; Paul Byrne SC and Stephen Gageler SC.

The president advised that she would be convening a seminar for potential applicants on Monday 30 June.

The Bar Council endorsed the membership of the Silk Selection Committee.

Academics - practising certificate condition

The Bar Council discussed the memorandum from the director, legal which sought a clarification of the meaning of âleaderâ in relation to the condition currently placed on the practicing certificate of academics who have not completed the Bar Practice Course.

The Bar Council resolved that âleaderâ be defined in the condition as a barrister who is a senior counsel or who has more than seven years experience and holds an unrestricted practising certificate.

The application of s50 of the Civil Liability Act 2002 (no recovery where person intoxicated) to children

The Bar Council resolved to request the Common Law Committee to draft a proposal for amendment to the Civil Liability Act to be referred to the attorney general for his consideration, together with a covering letter.

Appointment of the judiciary

The president raised the item regarding the attorney generalâs query as to whether the Bar Association wished to have a representative on selection committees for appointments to the Local Court and the District Court.ï¿½ The president noted that in the past there had been Bar Association representation on selection committees for public defenders and crown prosecutors.

The Bar Council agreed that the Bar Association should seek representation on selection committees for public defenders and crown prosecutors.

The Bar Council asked that the committee chaired by the senior vice-president that is preparing a report for the council on the NSW attorney generalâs Discussion Paper on Selection Criteria for Judicial Appointments 2008 to also consider the question as to whether it would be appropriate for there to be Bar Association representation on the selection panels for members of the judiciary.

The Bar Council noted the minutes.

Submission to joint report of the Commonwealth, NSW and Victorian Law Reform Commissions, ALRC 102, Uniform Evidence Law

The Bar Council noted the memorandum from the executive director that outlined the process undertaken when the ALRC sought submissions for its âUniform Evidence Lawâ reference.

A query was raised as to whether the Commonwealth legislation now includes the equivalent of s41 of the Evidence Act 1995 (NSW).ï¿½ The executive director was asked to advise the current position with the Commonwealth Act.

University of New South Wales mooting

The Bar Council noted that the UNSWâs mooting team had come second in the international round of the Jessup Moot Competition that had been held in Washington DC in mid April.

Family Provision Act 1982

Needham SC reported on the work undertaken by a working party comprising herself, Blackburn-Hart SC, Ellison SC and Wilson concerning the NSW attorney generalâs draft consultation Family Provision Amendment Bill. The working party has been giving particular attention to the proposed cost restriction in s100 of the draft Bill, and is currently consulting with the Law Society and trustee companies in the course of finalising a draft submission for Bar Council consideration.

2 June 2008

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