The Evolving Bar

Dr Ruth Higgins SC

Mustafa Suleyman commences his recent, exhilarating book, The Coming Wave: AI, Power and the 21st Century’s Greatest Dilemma, by observing that:

‘Almost every culture has a flood myth … I believe this coming wave of technology is bringing human history to a turning point. If containing it is impossible, the consequences for our species are dramatic, potentially dire. Equally, without its fruits we are exposed and precarious.’

This edition of Bar News focusses on emerging information technologies and the ways, from the quotidian to the existential, in which they are apt to affect the work of barristers and the profession more broadly.

In 2023, the Bar Association published guidance specifically addressing issues related to the use of AI language models, like ChatGPT, in legal practice. That guidance aims to assist barristers to navigate potential conflicts between their professional and ethical duties and the use of such technologies. It emphasises the need for barristers to prioritise their professional obligations when using AI language models.

The Association is currently in the process of developing guidance for members on cyber security awareness and prevention, with the support of its newly established Cyber Resilience Working Group. This group is drawn from the Practice Development Committee, Professional Conduct Committees and Media and Information Law and Technology Committee. That guidance will be shared with members shortly.

A focus of my presidency is the mental health of members. The Association’s Mental Health First Aid Course has begun its roll-out, and over 80 members from different chambers will participate in three courses. Demand for the initiative has led us to introduce an additional, fourth, course. That demand reflects an encouraging willingness within our membership to increase mental health literacy and engage in frank conversations about wellbeing. Yet, it also reflects the reality of the demands that our work places on us. All barristers, clerks and chambers staff are encouraged and welcome to sign up to the courses, which are fully subsidised by the Association. If you would like further information, please email Emily Graham’s article in this edition canvasses other ways in which members can assist each other with mental health concerns.

The call for care in the workplace has been raised recently by the terrible violence at Bondi Junction and Wakeley. I am aware that some of our members were, in different ways, affected by those events. BarCare is available to all barristers, their immediate families, and clerks, and I encourage everyone to take advantage of this resource. In this issue, at p. 116, there is an interview with Jenny Houen, the Director of BarCare. As Jenny explains, all contact with BarCare is anonymous and will not be shared with the Bar Association without express consent.

The Supreme Court’s bicentennial celebrations are well underway. The court’s new portrait gallery on level 13 is a majestic mosaic of the history of the institution, taking as its focus a wall hosting only portraits of the first five female judges appointed to the court. Constant Guardian, Changing Times, the history of the court, edited by the Honourable Keith Mason AC KC and Larissa Reid, was recently launched by the Honourable James Spigelman AC KC in the Banco Court. I chaired a conversational event in the Bar Association common room on 1 May 2024, with the Chief Justice, the Hon Keith Mason AC KC and Larissa Reid, to discuss the process of writing, and highlights of, the book. It is a superb and entertaining record of the court to date and exemplifies the way in which complex and enduring social institutions, like courts, reproduce and reinvigorate themselves through transparent histories and narrative retellings. The Association will be gifting copies of the book to all participants in the Bar Practice Course this year.

An interfaith church service will be held on 16 May 2024 at St James Church, Queens Square, which also celebrates its bicentenary this year. A formal ceremonial sitting will occur on 17 May 2024, which will be livestreamed through a link that will be circulated via InBrief. For those with an appetite for Victorian-era theatrics, the Gilbert and Sullivan opera Trial by Jury will be performed in the Banco Court on 30 and 31 May. Each of these events will be covered in the next edition of Bar News, which will be released in August 2024 and will be dedicated to the bicentenary.

On behalf of the Bar Council, I express my deep gratitude for the invaluable and voluntary assistance provided by the Bar Association’s specialised committees, comprising dedicated barristers, clerks, and academic members who contribute their skills and expertise for the benefit of the public and the profession. The Association’s committees are indispensable in advising and assisting the Bar Council in relation to policy and law reform matters, professional standards, professional conduct, education, and practice development.

The Bar Council recognises the importance of diverse committee membership. I encourage each of you to consider nominating to join these committees when expressions of interest are sought in May. The unique perspectives and practical insights contributed by committee members are highly valued and critical in shaping the Association’s strategies and initiatives.

Throughout 2023, the Association’s policy committees assisted the Association to make over 100 submissions to state and federal law reform and policy consultations and to the Law Council of Australia, of which the NSW Bar Association is an integral constituent body.

Examples of the Association’s policy and law reform work in the first quarter of 2024 include:

• advocacy highlighting the Association’s concerns regarding the Bail and Crimes Amendment Bill 2024 (NSW), particularly its impact on incarceration rates of First Nations vulnerable children and young people;

• input to the Law Council of Australia’s submission to the Department of Climate Change, Energy, the Environment and Water on the proposed Nature Positive Laws, which would reform the Environment Protection and Biodiversity Conservation Act 1999 (Cth);

• appearing before the NSW Portfolio Committee No. 1 – Premier and Finance’s inquiry into artificial intelligence in New South Wales;

• submissions to the NSW Law Reform Commission regarding its review of serious road crime offences and to SafeWork NSW regarding a proposed new offence of industrial manslaughter;

• a submission to the City of Sydney in response to consultation on a draft ‘A City for Walking: Strategy and Action Plan’ regarding the accessibility of courts and tribunals for people with disabilities;

• appearing before the NSW Portfolio Committee No. 5 – Justice and Communities regarding its inquiry into the Jury Amendment Bill 2023 (NSW).

The Legal Assistance Referral Scheme (‘LARS’) matches eligible requests for legal assistance with a barrister or mediator who may provide advice, appear for members of the public, or assist them to settle their legal issue. Barristers participate in LARS on a voluntary basis and collectively donate thousands of hours towards assisting members of the public with their legal problems each year.

As outlined in the Association’s 2021–2025 strategic plan, an objective of LARS is to ‘encourage and enable members to provide and engage in pro bono or reduced fee services … through the Bar Association’. Through LARS, members can volunteer their time and expertise by undertaking to provide advice and/or representation in a LARS referral. Members can also gain invaluable appearance experience through the Duty Barristers’ Scheme at the Downing Centre Local Court.

In support of the Bar’s 2021–2025 strategic plan to ‘improve and support diversity at the Bar to represent and support the Society it serves’, the LARS team have welcomed two First Nations law students as paralegals. This initiative aims to encourage participation of First Nations Peoples at the Bar by supporting First Nations law students to gain practical legal experience to complete their legal training as funded by the Association.

The 2024 Regional Conference CPD Series was well received by regional members and those within the Greater Sydney Area. Overall, feedback from the conferences was positive. Attendees commented on the programs being educational and informative and involving an impressive selection of speakers from the judiciary and the Bar. Thank you to each of the speakers and all of the members who attended these conferences.

The February Bar Exam was undertaken by 108 candidates. It was held at the Bar Association and comprised two exams, each lasting two hours. That exam was the eighth time that candidates completed the NSW Bar examinations using an online computerbased software program. A key feature of the NSW Bar examination model is its close connection to practice and the fact that it is written and assessed by members of the profession.

Finally, practising certificates renewals are due by 7 June to avoid the late fee, and renewals cannot be accepted after 30 June 2024. BN

Dr Ruth Higgins SC

Banco Chambers