A fortnight ago, I updated members on the Bar Council’s review of our pro bono duty barrister schemes with Victoria’s courts and tribunals. Last week, I updated members on work being done by the Bar Council to drive an increase in the volume of direct briefing work available to members.
This week, I want to update members on the status of the Bar Council’s governance review and to foreshadow the imminent release of a discussion paper and survey to canvas the opinions of members in relation to the election of the Bar Council and the tenure of Bar Councillors.
In 2016, a working group of the Bar Council, chaired by Wendy Harris QC, conducted a comprehensive review of governance at the Victorian Bar, culminating in a long list of recommendations and action items. Since then, successive Bar Councils have implemented those recommendations, resulting in dramatic improvements in the quality of the information provided to Bar Council, the operations of Bar Council itself, and the interaction between the Bar Council and the Bar Office. Among other things, the improvements have included the adoption of a new strategic plan and Bar Council Charter, KPIs for Bar Office staff, an induction program for Bar Councillors, a complete review of all Vic Bar policies and committees, the introduction of Committee Charters, and better resourcing in the Bar Office for policy development and requests for policy input by government and other organisations.
Elections and tenure of Bar Councillors
One of the issues identified in the governance review concerned the fact that, under clause 42 of the Victorian Bar’s Constitution, members of the Bar Council have one-year terms. The review identified that one-year terms give rise to a number of challenges for good governance of the Bar, including the potential for the pursuit of ad hoc or piecemeal agenda from one year to the next; a focus on ‘bite-sized’ projects which can be achieved in the short term; the agenda of the Bar Council being heavily influenced by the personal agenda of the sitting President; and the potential for loss of corporate memory, re-invention of the wheel and inconsistency in decision-making. In addition to those matters, for more junior members coming on to Bar Council, a one-year term can be limiting: new members may be just finding their feet when the annual election cycle comes around, with no assurance that they will be re-elected. The governance review recommended, among other matters, that consideration be given to amending the Constitution to provide for two-year terms for Bar Council members.
There are countervailing arguments to be weighed against the advantages of longer terms for Bar Councillors. Longer terms would reduce the opportunity for members to stand for election and to serve on the governing body of the Bar. They would increase the term served by the President and likely, therefore, increase the time that other Bar Council members would need to serve as ordinary members before securing an opportunity to serve on the Executive and then, increase the time they would need to serve on the Executive before they could realistically expect to be elected as President. Longer terms could, for that reason, affect the preparedness of some barristers who would make outstanding leaders of the Bar to put themselves forward because of the commitment involved and the impact upon their practices.
A special meeting of the Bar Council was convened in May to discuss whether possible constitutional reform to increase the terms of Bar Councillors ought be pursued. Broadly, six possible models were canvassed:
All other Australian Bars currently have annual elections. Most follow the ‘minimalist’ model. The minimalist model was also largely the convention at the Victorian Bar prior to 2000 and there would be no constitutional impediment to it being reintroduced.
Discussion Paper, survey and call for submissions
Although a range of different views were expressed at the May Bar Council meeting, after a constructive debate considering the pros and cons of each of the above models, a strong majority emerged in favour the ‘two year’ model. The Bar Council resolved, as a result, to prepare a discussion paper with a view to canvassing the views of members of the Bar. As part of that discussion process, an optional survey of members of the Bar will be conducted in relation to the models set out above. More detail will be included in the discussion paper.
The discussion paper and survey will be available shortly.
I know that some members may see this as a second order issue. Having served on Bar Council for almost four years, including as President for the past six months or so, I do not see it that way. We have been very well served over many years by outstanding leaders and Bar Councils that have managed the affairs of the Bar wisely and overwhelmingly by consensus. Nonetheless, the Victorian Bar faces significant challenges in an environment of increasing competition for legal services and constant disruption. To meet those challenges, and achieve our purpose of ensuring that the Victorian Bar and its members thrive and continue to do so, demands that we consider whether there are better ways in which we can do things.
I urge members to get involved, once the discussion paper is released and the survey goes live, to enable your voice to be heard in relation to the governance of your Bar.