- Autumn 2023
By the time the next edition of Bar News is published we will have voted in a referendum to decide if the Constitution should be amended to enshrine a First Nations Voice.
The Bar Council has already voted ‘Yes’. On 6 April 2023 the Bar Council unanimously endorsed the proposed wording as sound and appropriate and resolved that the NSW Bar Association will publicly advocate in support of a ‘Yes’ vote. In my time on the Bar Council, I have not participated in any resolution more significant.
As Gaby Bashir SC writes in her 'President’s column', this is an historically important reform. The lack of recognition of our First Nations people in our Constitution is a historic wrong that needs to be addressed. It is a reform called for in the powerful and poetic Uluru Statement from the Heart which sought 'constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.'
This edition carries 'The Voice – a step forward for Australian Nationhood', by the Hon Robert French AC, former Chief Justice of the High Court, who explains why the Voice is a big idea but not a complicated one, providing a high return for a low risk. He answers the question: Why not leave the Voice out of the Constitution altogether and just make a law using the races power to create the Voice?
The first answer is that The Voice is not about race. It is about our First Peoples as the indigenous people of Australia. The second answer is that by providing for The Voice in the Constitution, the Australian people perform an act of recognition and acknowledgement of First Peoples as the bearers of the first history of our continent. That is a history which stretches across tens of millennia. The third answer is that the constitutional provision creates a democratic mandate for the Parliament to create and continue The Voice as a significant institution in our representative democracy. It would be a democratic mandate because it is approved by a majority of electors in a majority of States as required by s 128 of the Constitution.
In 'Voice in its Chorus' David Townsend writes about referenda and indigenous recognition in other common law countries. In many ways Australia is an outlier in indigenous recognition in the common law world. While the 1999 referendum to insert a preamble into the Constitution 'honouring Aborigines and Torres Strait Islanders' failed, he notes that 38% of the current electorate were not then able to vote.
This edition also includes a paper presented to the Uphold and Recognise Forum held in the Federal Court on 28 February 2023 by Tony McAvoy SC, a Wirdi man from Central Queensland, co-chair of the Law Council of Australia’s Indigenous legal issues committee and NSW Bar Councillor. Tony’s paper examines the principles underpinning the constitutional reform and the opposition to the reforms. It includes a critique of those who oppose the Voice using the language of ‘race’
.… the fact that the polls show that a majority of Australians are supportive of substantive recognition tells us that those who descend into the use of racial fear and distrust are in the minority. In my view, it is the responsibility of all of us who understand the law to call out those who attempt to drag this reform debate down the low road of race politics. In making this observation, I am reminded of the famous Martin Luther King Jr quote: In the end, we will not remember the words of our enemies but the silence of our friends.
A diverse edition
This edition contains a variety of wonderful articles, offering something for everyone. For those new to the Bar, Nicholas Bentley has gathered a series of tips on what makes a good junior, while Jeh Coutinho, Brenda Tronson and Celia Winnett explain what is involved in buying chambers. At an event to celebrate John Rowe, Dr Ron Desiatnik, John Ringrose, Malcolm Ramage KC, the Hon Dennis Cowdroy AO KC, Garry McIlwaine and the Hon Greg James AM KC for achieving 50 years at the Bar, the Hon Arthur Emmett AO KC gave a speech on the connections between the Bar and Roman antiquity. Talitha Fishburn both looks back at the career of the Hon Greg James AM KC and the upcoming careers of two young lawyers hoping to start at the Bar.
This edition carries the two marvellous speeches given by Kathleen Heath and Nicola Gollan examining the career of the Hon Elizabeth Evatt AC, on the occasion of the Sybil Morrison Lecture.
Farid Assaf SC provides a comprehensive insight into ChatGPT and how barristers can use it. And then to demonstrate how effective it is, we also publish an article on the same subject written by ChatGPT itself. There it is clear that it, or tools like it, will be used by barristers of the future.
Anthony Cheshire SC examines the utility of demeanour assessments of witnesses in decision-making. I too have had a witness who was unresponsive to the point of being considered unreliable, not because she wanted to avoid answering but because she found the process so stressful that she was incapable of providing coherent answers.
In her interview with Eugene Chan, Tiffany Wong SC reflects on growing up (‘Where do you come from?’ ‘From Australia’), what brought her to the Bar, and the complexion of the Bar both then and now.
Elizabeth Nicholson writes about the Diverse Women in the Law’s ‘Shadow Program’ giving diverse women the opportunity to experience a day in the life of a barrister, and interviews some of the participants.
The lack of recognition of our First Nations people in our Constitution is a historic wrong that needs to be addressed. It is a reform called for in the powerful and poetic Uluru Statement from the Heart which sought 'constitutional reforms to empower our people and take a rightful place in our own country'.
Sam Pararajasingham interviews Lee-May Saw, the current advocate for cultural diversity, who says it was meeting and being put in touch with barristers through a placement with Legal Aid and being part of the Women Lawyers Association that inspired her to come to the Bar. She speaks about her experiences at the Bar and her observations of the intersection between race and gender.
In 'A human rights act for New South Wales' Arthur Moses SC sets out the case in favour of a bill of rights, setting out the minimum rights and freedoms that ought to be protected, contending the time is ripe for such legislation.
The 2022 Lismore Floods shocked the nation. A year on Kavita Balendra interviews Sophie Anderson, the Bar’s representative for the North Coast, who reflects on the devastation that hit the coastal town and its impact on the legal profession. The photos reveal the devastation to offices and the courts; and the recollections reveal how the legal profession rallied to support each other and the community.
Judge Gerard Phillips, President of the Personal Injury Commission of New South Wales gives readers an insight into litigation of the future: the creation of virtual hearing rooms located in regional areas allowing witnesses to give evidence without having to travel to Sydney or other major town where the court is located and without the witness needing to arrange and operate the technology necessary for a remote hearing.
New provisions introduced into the Sex Discrimination Act 1984 (Cth) which impose positive duties to take all reasonable and proportionate measures to eliminate as far as possible sexual and sex-based harassment are discussed by Penny Thew with Bruce Hogkinson AM SC, Yaseen Shariff SC and Maurice Baroni. Importantly the new duties extend to all persons, not just employers, and capture barristers chambers.
Former barrister, Nicole Abadee, interviews lawyer and playwright Suzie Miller, author of Prima Facie and RBG: Of Many, One, while Anna Garsia provides a review of the Sydney Theatre Company’s recent production of RBG. Miller’s plays are seriously good – and well researched: before writing RBG Miller read every single judgment Bader Ginsberg wrote and every case she ran.
As part of our ongoing series ‘with my own two hands’ which focuses on barristers who work with non-profit community groups, Libby Nicholson interviews Renee Bianchi about her long-standing association with Girl Guides Australia (replete with great photos, including that of seven-year-old Renee promising to become a Brownie).
Larissa Anderson writes about the memorial held on 17 November 2022 to celebrate the life of Janet Viola Coombs AM, which involved the recollections of many barristers including the Honourable Mary Gaudron KC who gave a wonderful speech dedicated to her old friend.
Madeleine Bridgett records the annual event that celebrates the appointment of women senior counsel, and in passing notes that in 2022 only 24.8% of the NSW Bar are women, while more than 50% of solicitors in NSW are women.
On that topic the Furies, in a typically acerbic and brilliant piece, address the question Why is it that only 25% of barristers are women? What is going on?
A key aspect of the answer is childcare responsibilities (which the Furies point out need not, but do, fall disproportionally on women).
The independence of the Bar is its greatest attribute yet contains a fundamental structural flaw, the latter not being apparent when the only barristers were men. Essential to our independence is the inability to share income. Yet that means that unlike a solicitor employed in a firm, a barrister who takes parental leave is unable to receive income from a common pool in the form of paid parental leave, not even to meet the usual ongoing expenses, which unlike the income do not disappear during a period of extended leave. In addition, employed solicitors can return part-time if they choose, and otherwise suffer no reduction in income on their return to work, unlike those barristers who take time to rebuild a practice.
I have long harboured the kernel of an idea that the Bar Association could create a trust akin in concept to the Barrister’s Benevolent Association, into which barristers could donate annually, and out of which those who take parental leave could receive a modicum of income. Whether that or something else is the answer, I suspect that until we address the significant financial hit barristers suffer when taking parental leave, we will struggle to lift the percentage of the Bar who are women to match the level of solicitors. BN