Continuity and Change

Dr Ruth Higgins SC

It is a great honour to be elected President of the New South Wales Bar Association.

An independent, ethical and competent Bar is a critical aspect of our legal system. And a legal system operating subject to the rule of law is a substantial human achievement. The New South Wales Bar continues to flourish in a context of institutional continuity and change: with the upcoming bicentenary of the Supreme Court of New South Wales in 2024 and a federal judiciary now led by the Honourable Chief Justice Gageler AC and the Honourable Chief Justice Mortimer.

But the Bar also is, and should be, a space of collegiality, friendship and growth. I emigrated to Australia 22 years ago leaving my then connections 10,000 miles away. The New South Wales Bar has been a place of great inclusion, opportunity and support for me, and my focus as President will be to ensure that that is true for as many of its members as possible.

Before turning to the future, let me acknowledge the immediate past President. Gabrielle Bashir SC was a remarkable and dedicated President, and I thank her for the example she has provided and for her decades of service to the Association and its members.

To list Bashir SC’s contributions makes that service manifest: Bashir SC was a member of Bar Council between 2018 and 2023, its President from May 2022 until November 2023, and prior to that Senior Vice President and Junior Vice President, as well as Co-Chair of the Criminal Law Committee between 2018 and 2021. For over 20 years, the Association has benefited from Bashir SC’s knowledge, thoughtful leadership and willingness to give of her time generously and significantly for the benefit of the New South Wales Bar.

That contribution extended to participation in national governing bodies. Bashir SC was a member and Co-Chair of the Law Council’s National Criminal Law Committee from April 2018 to February 2020 and as a Director between April 2018 and December 2020. She was a member of the Law Council’s Indigenous Incarceration Working Group from its establishment in December 2018. Bashir SC’s involvement was central to shaping the Law Council’s position on the minimum age of criminal responsibility, mandatory sentencing and a federal parole authority. She has regularly appeared as an expert witness before parliamentary inquiries, including, most recently, appearing before the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into current and proposed sexual consent laws in Australia.

Bashir SC oversaw the emergence of a stronger and more resilient Bar following the restrictions and difficulties that flowed from COVID-19, the black summer bushfires and the catastrophic Northern Rivers floods. It was timely that, during her tenure, the Association’s Climate Change Panel expanded to a permanent Committee, which has already provided important contributions to law reform and policy development by State and Commonwealth governments.

The Bar became more inclusive under Bashir SC’s leadership, with a record number of female readers starting in 2023. Our recent Open Day for women and gender-diverse law students was a huge success. Coordinated on behalf of the Diversity and Equality Committee, almost 60 students heard a lively panel discussion with the Honourable Justice Julie Ward, the Honourable Justice Dina Yehia and Ragni Mathur SC, and then visited courts and chambers in the company of over 20 volunteer barristers. Diversity within the administration of law, and at the Bar, is not an aspirational proposition. It is a necessity. The legitimacy of our institutions critically turns on their ability to reflect, and speak to, the communities they serve. The Association takes extremely seriously, while seeking to promote joyfully, diversity within our membership.

The Association also continued promoting and implementing its Updated Best Practice Guidelines on harassment, bullying and discrimination through training of Respectful Relations Officers and delivery of CPDs on recent legislative changes. It is pleasing to see that, by December 2023, a significant majority of chambers have implemented or substantially adopted the BPGs. It is important that chambers continue to review their BPGs to ensure they reflect ongoing legislative developments, including the new compliance functions and powers for the Australian Human Rights Commission to monitor and assess compliance with the positive duty in the Sex Discrimination Act 1985 (Cth) which will commence on 12 December.

Under Bashir SC’s leadership Bar Council unanimously voted to support a constitutionally enshrined Aboriginal and Torres Strait Islander Voice to Parliament. That referendum did not secure the majority it required. However, the Association’s commitment to closing the gap experienced by Aboriginal and Torres Strait Islander people each and every day in our society will continue. This includes maintaining the organisation’s long-standing advocacy in support of a fully-funded Walama Court and for raising the age of criminal responsibility. The NSW Government is lagging behind several other jurisdictions in failing to take action to raise the age. That failure has the greatest impact on First Nations people between the ages of 10 and 14, who are grossly overrepresented in detention in NSW .

The profession thanks Bashir SC for her profound commitment to reducing Indigenous incarceration rates in NSW and wishes her the very best for life beyond Bar Council.

We find ourselves in the midst of several extremely distressing international events. Many of our members, and their families and friends, have been directly affected by the shocking war and violence in the Middle East, and its local ramifications. We will continue to support them throughout this very difficult period. The wellbeing of our members confronted by such events, alongside the daily demands of life at the Bar, and in some cases the additional demands involved in caring for children, will be a priority for the Association over the coming year, with the assistance of its Wellbeing Committee. Several initiatives are being developed to address vicarious trauma and other mental health support needs of members. I will update the Bar on the progress of those important initiatives in coming months.

The work of our policy committees continues to be prolific and to contribute to the development of law reform across a vast array of topics and jurisdictions.

There has in the past year been significant federal legal reform. The National Anti- Corruption Commission commenced in July this year, and the new Federal Administrative Review Tribunal is expected to replace the Administrative Appeals Tribunal next year. The Association has provided detailed input to the principles underlying a proposed Federal Judicial Commission. Our Family, Care and Adoption Committee has recently provided input to reforms to the Family Law Act 1975 (Cth) arising from far-reaching inquiries conducted by the Australian Law Reform Commission (ALRC) and the Joint Select Committee into Australia’s Family Law System.

At a state level, the Association has long advocated for root and branch reform of the coronial system, for increased opportunities for diversion of children and young people from the criminal justice system, and for the implementation of recommendations of the Ice Inquiry. In October 2023, the NSW Parliament introduced a pre-court diversion scheme for personal drug use and small quantity drug possession offences. Based on recommendations of the Ice Inquiry, the Scheme will allow police to issue up to two Criminal Infringement Notices to adults for personal drug use and small-quantity drug possession offences. It is anticipated to commence in early 2024.

Next year there will be a new offence of coercive control and the state-wide expansion of the Child Sexual Offence Evidence Program will commence: both reforms have been developed with the input of the Association’s policy expertise. There has been increasing recognition in recent years of the adverse impact of trial processes on vulnerable witnesses, and the ALRC’s upcoming national inquiry into justice responses to sexual violence will provide a further opportunity to consider the necessary balancing of such impacts with fundamental fair trial rights. The Association is being proactive with a range of CPD activities in these areas to assist the Bar.

We will continue to work closely with the Law Council of Australia on matters involving federal law reforms, including ongoing advocacy in relation to the extension of the federal Anti-Money Laundering regime to the legal profession and on priority issues to be considered under the Australia-United Kingdom Free Trade Agreement (A-UKFTA), with formal meetings of representatives of professional legal associations and regulatory bodies from Australia and the UK to kick off in 2024.

The Association plays an important role in supporting the profession to meet the challenges of rapid developments in technology and the impact of AI. Guidelines on Issues Arising from the Use of AI Language Models (including ChatGPT) in Legal Practice were published in July this year, and the expertise of several Committees, including the Media and Information and Technology Committee has fed into our recent submission to the NSW Upper House Inquiry into Artificial Intelligence in New South Wales. The advent of AI poses fundamental and potentially existential challenges to the legal profession, human rights and society more broadly, and the submission recommends that the Government adopt a structured, evaluative approach to determine whether (and if so, what) legislative change is required to adapt to and regulate AI. Further guidance for members on document retention practices to ameliorate the impact of cybersecurity breaches will be published shortly.


The regulatory functions of the Bar comprise admission to practice, responsibility for the Bar Exam and Bar Practice Course, and the handling of professional conduct matters through our Professional Conduct Committees and the Bar Council.

We currently have 82 matters under assessment or investigation, related to competence, compliance, costs and ethics. Over the past year, there has been an increased focus on reducing the time to resolve complaints without compromising procedural fairness or the high quality of our investigations and reports. This has resulted in a new Guideline being distributed to the various Professional Conduct Committees which contains clearer guidance as to the process and desirable time frames for the assessment and investigation of complaints. Of course, each complaint is different. The complexity of many complaints is increasing, with complainants identifying more grounds of complaint and matters which have arisen during a hearing, often making it necessary for a transcript of proceedings to be obtained for the complaint to be properly assessed.

Notwithstanding those challenges, in the last financial year, 60% of complaints were finalised within 12 months and 80% of complaints were finalised within two years. Further work will be undertaken by the Professional Conduct Department over the remainder of this financial year to increase the proportion of complaints finalised within 12 months.

The Bar Council is astute to the effects a complaint can have on the barrister concerned, both in the time it can take to respond properly to requests for information during the investigation and the potential emotional toll. The Bar Council has, for some time, encouraged barristers to seek advice from their professional conduct insurer solicitors or trusted colleagues in responding to complaints. I remind all barristers that support from BarCare is available if needed. In addition, the Bar Association is reviewing its processes and support mechanisms to reduce any unnecessary stress caused to barristers against whom complaints have been made.

Finally, thank you for the members’ confidence in voting for me in the election, and for the Bar Council’s confidence in electing me President. I will give the best of myself in discharging that role. BN

Dr Ruth Higgins SC

Banco Chambers