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In Brief Issue #931
20Sep
Bumper Bar Council meeting
Last night’s Bar Council meeting had a longer agenda than usual, with a number of significant matters that have been underway in some cases for many months coming to fruition:
- New Strategic Plan. A new Strategic Plan for the Victorian Bar for 2020–24 was debated. I expect the finalised plan will be approved at the next Bar Council meeting in October. The plan has been developed with the assistance of the NOUS Group, in consultation with members and staff of the Bar, the judiciary, the Victorian Legal Services Board + Commissioner and other interested stakeholders. It will set the Victorian Bar’s strategic direction and priorities for the next five years, updating the current plan which set out direction for 2017–2020.
- Readers’ exam ‘overhang’. Bar Council reached a resolution in respect of the difficult issue of what to do about the fact that the number of candidates successfully passing the Bar entrance exam now routinely exceeds the number of available places in the Bar readers’ course.
Bar Council has resolved to retain the current ‘standards-based’ philosophy underlying the exam. Any candidate who achieves the pass mark of 75% will continue to be guaranteed a place in the Bar readers’ course. This reflects the position that has applied since the establishment of the exam requirement in 2011. Available places in the readers’ course will be offered to candidates in the order of their ranking in the exam.
There are limited places available in the March 2020 course for candidates who successfully pass the November 2019 exam, because of the number of candidates who have passed earlier exams but not yet been able to undertake the course. Most successful candidates from the November 2019 exam will be offered places in the September 2020 or March 2021 courses. Candidates planning to sit the November 2019 exam have been advised of these constraints.
Bar Council reached its resolution having given detailed consideration, over the course of a number of meetings, to the recent report of the Panel appointed to review the exam (which received some 80 submissions on this and other aspects of the exam), having consulted with members from recent Bar readers’ courses and all members of the present course, and having taken soundings from the Bar more widely.
The unfortunate reality is that the constraints on the Bar are such that we could not increase the number of places in the Bar readers’ course without substantially altering its curriculum (particularly by reducing the current emphasis on oral advocacy training and assessment with individualised feedback). This would materially reduce the quality of the experience of readers undertaking the course, or substantially increase the cost of the course, presenting a greater potential cost barrier to aspiring barristers. The principal constraint, however, is not cost—it is that the readers’ course depends on the goodwill and generosity of around 300 volunteer teachers and assessors, drawn mostly from the Bench and Bar. We do not have, by way of example only, sufficient teachers or assessors to be able to offer moots to more than the current number of readers, or to increase the number of written advocacy exercises we can administer and give feedback upon. Nor is there any realistic option of, for example, moving from two to three courses per year. Not only would that exacerbate the problems we currently face with finding sufficient teachers and assessors, but it could not be fit into the already busy calendar of other activities at the Victorian Bar.
Bar Council was therefore faced with the difficult task of deciding whether to maintain the current guarantee that anyone who passes the exam will be offered a place in the readers’ course, but at the cost of the establishment of a waiting list; or replacing the current system with a ranking system that would not require a waiting list, but only offer places to the top students in each exam, with the consequence that some candidates who had achieved the pass mark of 75% might not be offered a place at all and have to re-sit the exam.
There is no perfect solution to this problem. Please be assured that Bar Council has given it very careful consideration, drawing upon the report of the exam review Panel and widespread consultation. We will, of course, continue to monitor the exam and course closely.
- Parental Leave policy. Improvements to the Bar’s Parental Leave Policy were approved. The rental subsidy cap, which was set in June 2012, will henceforth be indexed annually, so that it keeps pace with average BCL rent increases. Eligible members will also be entitled to a 75% discount on their Victorian Bar subscription fees, up to a maximum period of 6 months. The changes will increase the cost of the parental leave subsidy to the Bar, but having undertaken modelling and review by the Audit, Finance and Risk Committee, Bar Council is satisfied that the changes are sustainable.
The parental leave policy has been in place now for some 20 years. It was an Australian first and remains the only Bar-wide parental leave scheme in Australia.
- Supreme Court pro bono protocol. A new pro bono referral protocol with the Supreme Court was endorsed. The protocol formalises arrangements for the Supreme Court Trial Division and Court of Appeal to refer appropriate matters to the Bar for pro bono assistance, in order to establish a more sustainable and efficient pro bono scheme, assist with the administration of justice, improve the quality of experience in providing pro bono services and to improve outcomes for everyone involved. Stay tuned for details of the launch and more exciting pro bono news in the coming weeks.
My thanks to Richard Wilson, all members of the Pro Bono Committee and to the Supreme Court for their fine work on this exciting protocol.
- Barristers’ Benevolent Association. Bar Council approved long-overdue improvements to the governance of the Barristers’ Benevolent Association of Victoria, which provides assistance to barristers and their families in necessitous circumstances. This was the culmination of many months of work led by Treasurer Sam Hay, the Bar’s Manager, Finance and Membership Susan Lawrence and me.
We will be seeking the approval of members of the Association at its AGM next month to improve the structure of the Association by incorporating a trustee company limited by guarantee, establishing a trust deed that complies with ATO and Australian Charities and Not-for-Profits Commission requirements, and replacing the rules governing the Association to allow distribution of assets to the new charitable trust characterised as a necessitous circumstances fund for tax deductibility purposes. The existing management and decision-making processes will be retained. More about this when notices for the AGM are posted in a few weeks time.
- A Governance Framework for the Bar was approved. The framework is intended to be a central reference document and repository of information for Bar Councillors, staff and all interested members of the Bar. It brings together the Bar’s key governance documents, and describes the roles and responsibilities within the Bar’s organisational structure and the fundamental principles and mechanisms we have in place to ensure effective governance, continual performance improvement, and meeting of corporate obligations and legal requirements.
If you have ever wondered about any of those matters—essentially, how we are structured, who is responsible for what, and why we do things in the way we do—the Framework is compulsory reading. Thanks to Bar CEO Katherine Lorenz for her work in leading this project.
- A Compliance Management Framework was also approved, in order to assist the Bar in reporting to the Professional Standards Authority.
- Sexual harassment submission. The Bar’s submission to the Law Council of Australia in response to its request for input on addressing sexual harassment in the Australian legal profession was approved. Thanks go to the Equality and Diversity Committee for its work on that submission.
- The Bar Council election schedule for the forthcoming annual elections was approved. Nominations for election to Bar Council will open on 14 October and close on 28 October, ballot papers will be made available to members who are eligible to vote on 30 October, and voting will be open from 30 October to 13 November. Results will be declared at 4.45pm on 14 November 2019. I’ll have more to say in coming weeks about why you should think about standing for Bar Council and contributing to the governance of our institution.
- Annual General Meetings. Notices were approved for the Annual General Meetings of the Victorian Bar Inc and the Barristers’ Benevolent Association, which will each be held on 28 October. I look forward to seeing as many of you get involved as you did for the Special General Meeting in June.
Bar Council meetings are always busy affairs. Apart from the above matters, we also dealt last night with, among other matters, approval of past minutes; reports from the President and the CEO; a monthly finance report; reports in relation to BCL and the Law Council of Australia; a report in relation to the Bar’s delegations from the Victorian Legal Services Board and Commissioner; and various membership matters (disciplinary, practising certificate renewal, applications and transfers, and accreditations), and noted the work of many of the Bar Council’s working groups and standing committees.
Victorian Bar Foundation Student Achievement Awards
Last Friday night I enjoyed attending one of the year’s highlights, the Victorian Bar Foundation and City of Hume Student Achievement awards. It was wonderful to see the excitement and sense of accomplishment of the winners of the awards, and the pride of their families and teachers who attended to join in celebrating their achievements.
The awards are the result of a partnership between the Victorian Bar Foundation and the City of Hume (Broadmeadows, Tullamarine, Craigieburn, Sunbury), which is one of Australia’s most culturally diverse communities, where 140 languages are spoken, and two out of every five residents speaks a language other than English.
The awards recognise 15 high academic achievers by providing prizes of $1,500—$1,000 from the Victorian Bar Foundation and $500 from City of Hume, as well as mentoring opportunities with members of the Bar. The awards go to a student selected from each of the 15 high schools in the City of Hume, based upon their results in Legal Studies.
My congratulations to Victorian Bar Foundation Chairman, Justice Digby, Foundation Patron Justice Gordon, the members of the board of the Foundation, and the Mayor, Councillors and staff of the City of Hume, for an initiative which encourages some of the State’s most promising students to see and experience the intellectual curiosity and diversity within our profession, in the hope that they might be inspired to pursue a career in the law and, more particularly, at the Victorian Bar.
New Chief Magistrate
Congratulations to her Honour Judge Lisa Hannan on her appointment as Chief Magistrate of the Magistrates’ Court of Victoria, commencing on 17 November 2019. Judge Hannan will replace Chief Magistrate Lauritsen on his retirement from the role.
Details of the welcome ceremony will be announced when they are known.
A busy week
This week, as well as Bar Council and my regular catch-ups and meetings (CEO, Diversity & Inclusion Working Group, Executive), I attended a planning meeting with representatives of the Victorian Legal Services Board for a forthcoming regional regulators’ conference, and did interviews with ABC News 24, The Age and the Four Corners program (the latter being for a forthcoming episode looking at the Royal Commission into the Management of Informants). Thanks, too, to Justin Hannebery QC for doing some media interviews on behalf of the Bar with The Age when I was unavailable.
Advanced Trial Advocacy Intensive
The Advocacy Training Council will hold its renowned Advanced Trial Advocacy Intensive from Monday 20 January to Friday 24 January 2020 in Melbourne.
The philosophy underlying the intensive is that the skills of a barrister are best learned in an environment that is as close to the real experience as possible. This involves providing realistic briefs in sufficient time for counsel to prepare the matter for hearing, giving them the opportunity to perform in real court settings, then playing back and reviewing the performance. This gives barristers a rare opportunity to experiment with a number of styles of performance to see which is the most effective for that advocate on that occasion, together with individual and small group coaching by senior Australian judges, international and Australian senior practitioners and professional performance coaches accredited by the ABA. Click here for more details including the registration form.
The Australian Bar Association sponsors one Indigenous barrister to participate in the intensive. To nominate, send a brief outline of your work history to the Secretariat at xanthe.cushing@qldbar.asn.au before 30 September 2019.
Places are limited, so be sure to secure your spot as soon as possible.
The members of Essex Court Chambers and the Singapore Academy of Law are organising the ECC - SAL International Mooting Competition. Now in its ninth year, this contest is open to young barristers from Australia. While entrants pit their advocacy skills against each other, this competition also offers a valuable platform to interact and foster working relationships with counterparts from other jurisdictions in the region.
The competition will take place on 4, 6 and 8 January 2020 at the Supreme Court of Singapore. The winning team will be offered an all-expenses paid, 2 week internship at Essex Court Chambers in London—a leading set of barristers’ chambers specialising in commercial and financial litigation, arbitration, public law and public international law. Awards will be given for the best orator and best memorandum submitted in the competition, as well as to the best competing team from outside Singapore.
Two team slots have been reserved for Victorian barristers’ participation. A copy of the publicity flyer is available here. Members interested in being part of a Victorian Bar team should contact Liz Ingham on Elizabeth.Ingham@vicbar.com.au.
Following on from CommBar’s very successful International Commercial Law Conferences (London 2016 & Hong Kong 2018), CommBar and the Victorian Bar will be holding the 2020 International Commercial Law Conference (‘ICLC’) at the Eastern and Oriental Hotel in Penang, Malaysia on Friday the 18th and Saturday the 19th of September 2020. As was the case with the Hong Kong 2018 ICLC, the timing of the Penang 2020 ICLC coincides with the first weekend of the September school holidays and is an event not to be missed!
The conference will feature speakers from the Victorian, English, Hong Kong, Malaysian and Singapore bars and judiciary and will address a range of current commercial litigation and arbitration topics. Solicitors and Corporate Counsel from the region are also expected to attend and, as ever, the conference will feature an exciting and memorable social program.
Penang is easily accessible via Kuala Lumpur or Singapore on Malaysia Airlines, Singapore Airlines, Qantas, Virgin Australia, Emirates, Silk Air, Air Asia or Scoot in addition to direct flights to Penang from Melbourne, twice weekly (Wednesdays and Sundays) on Jetstar. In addition to the conference hotel (The Eastern and Oriental Hotel), Penang offers a broad range of accommodation suitable to all budgets. Also, the conference registration fee will be competitively priced as it has been with previous CommBar ICLCs.
For now, we are seeking expressions of interest in the Penang 2020 ICLC from CommBar members. If you are interested in attending and consider it likely you will attend the Penang 2020 ICLC, please register your interest by emailing penang2020iclc@vicbar.com.au and we shall keep you informed of future developments.
In the meantime, should you have any queries, please feel free to contact Paul Hayes QC at pjhayes@vicbar.com.au.
Join fellow barristers and members of the VicBar community for an hour of relaxation and fun. Experience and obvious talent not required. All welcome.
The Federal Court is calling for expressions of interest from suitably qualified mediators to assist the Court in the management of its native title work.
The court maintains and periodically reviews a list of suitably qualified mediators for occasions when the court, which manages of aspects of native title proceedings, determines to refer a matter to mediation before a person or body other than the National Native Title Tribunal or a Registrar of the Court.
For further information and an expression of interest form, click here.
In conjunction with the Resolution Institute and VADR, we are very pleased to invite you to a CPD session on the Singapore Mediation Convention to be followed by drinks at the offices of Pitcher Partners at 5:30 pm on 31 October 2019.
In December 2018, the United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation, now known as the Singapore Mediation Convention.
On 7 August 2019, in Singapore, 46 countries, including the USA, China, Singapore, India, Malaysia, the Philippines & South Korea – but not Australia; signed the Convention.
The Convention will facilitate the enforcement of mediated settlement agreements in cross-border disputes in much the same way as the New York Convention does for arbitral awards. It is intended that the Convention will promote the use of mediation and remove the need to involve courts or arbitral tribunals to achieve enforceable dispute resolution. This provides greater certainty to the parties, particularly where the terms of settlement contemplate future performance and enforcement remains an ongoing concern.
Australia’s failure to sign the Convention is disappointing given the extensive amount of international trade in which the country’s corporations engage. It is hoped that this failure will be addressed by the Federal Government in the near future.
The speakers at this event have and will provide a unique insight into the Convention and its intended operation. Professor Khory McCormick was the Australian Government Rapporteur at the UNCITRAL Working Group which drafted and settled the Convention. Professor Rajesh Sharma was present at the signing of the Convention in Singapore.
If you want to learn more, find out what is really happening, make your own contribution, and perhaps hear from an international speaker on this very current topic, then this is a session not to be missed.
Singapore Mediation Convention CPD seminar
Date: Thursday 31 October 2019
Time: 5:30pm - 7:30pm
Location: Pitcher Partners
Level 13/664 Collins St
Docklands VIC 3008
CPD points: 1.5 hour of CPD under NMAS and Resolution Institute accreditation schemes
Entry is free for Victorian Bar members - click here to register
The WATL Foundation presents a six workshop series on Emotional Well-Being for Barristers: How to Succeed with Peace, Purpose and Happiness.
These classes are designed for the members of the legal profession, especially those who are curious and interested in finding more balance in work and life, and those who are keen to find an alternative path to achieve success.
Emotional Well-Being for Barristers: How to Succeed with Peace, Purpose and Happiness Sessions include:
- Thu 10 October 2019, 5-7pm - Foundation Workshop: Beginner's Mind, Neuro-plastic Brain
- Thu 17 October 2019, 5-7pm - How to Become Self-Aware: Non-Doing Workshop
- Thu 24 October 2019, 5-7pm - How to Connect to Yourself: Befriend Yourself Workshop
- Thu 31 October 2019, 5-7pm - How to Cultivate Empathy and Agility: Being Like Water Workshop
- Thu 7 November 2019, 5-7pm - How to Lead Others with Positivity: Why SO Serious Workshop
- Thu 14 November 2019, 5-7pm - Concluding workshop
Facilitator: Elva Zhang
All sessions will be hosted on Level 1, Owen Dixon Chambers East.
Upcoming CPD events:
You must be a member of the Victorian Bar and logged into the VicBar website to view the following events.
A special introductory offer for Vic Bar members wanting to join the RACV Club ends on 31 October, 2019.
If you join before 31 October 2019, the RACV Club will waive its joining fee, so the annual membership fee of $910 will be reduced to $520, as well as a discount on the annual membership fee each year.
Membership includes exclusive access to the RACV City Club in Melbourne’s CBD, the Healesville Country Club in the Yarra Valley, and over 160 reciprocal clubs globally.
By joining RACV Club, you gain access to a range of social, leisure and business facilities and services. You will receive a 50% discount on accommodation at RACV Resorts, as well as discounted dining and day spa packages through the club rewards program. Members also receive unlimited golf with their stay at the Healesville Country Club, which boasts one of the best golf courses in Australia. Other exclusive offerings for RACV Club members are access to the fully equipped business centre and discounted parking rates at the Melbourne CBD venue.
An optional subscription to the RACV Club fitness facilities in Bourke Street (valued at $595) is also available to members.
- To become an RACV Club member, print and complete this form.
- Scan and send your completed form to clubmembership@racv.com.au
- Click here for more information about the Victorian Bar’s associate corporate membership program with the RACV Club.
The Pinnacle Foundation awards scholarships for study in Year 12, University and TAFE to marginalised and disadvantaged LGBTIQ+ youth between the ages of 18 and 26. To date, the Foundation has awarded 209 scholarships to 135 scholars, many of whom study law.
To mark the Foundation's ten year anniversary, it is establishing a scholarship to honour its inaugural Patron, long term Human Rights Campaigner, the Hon. Michael Kirby AC CMG. The scholarship will be open to law students across the country with the first scholarship awarded in December this year. The scholarships are multi-year, with scholars receiving $7,000 in their first year of study and $5,000 in subsequent years. In addition, each scholar is matched with a mentor of the same field of study and sexual identity. The Foundation is a national, registered charity with DGR status.
Results of a recent study of Foundation alumni showed the following;
- 9 per cent of scholars said they would not have achieved their academic goals in a timely way without Pinnacle support
- 95 per cent of scholars said that the scholarship helped them academically by allowing them to give more time and attention to their studies
- 93 per cent said they now feel more valued as a person
- 95 per cent said their confidence improved
Each year, Michael Kirby presents scholars with their certificates commemorating their scholarships. For many years, Michael has been a gay icon, a humanitarian lawyer and a judge who has contributed significantly to transforming the society into which scholars will grow.
The Foundation is looking to raise sufficient funds for the scholarship to be perpetual. In keeping with Michael's own principles of equality, all donations, regardless of size, will be treated equally i.e. there will be no tiering.
The Foundation is seeking commitments from barristers, with a minimum contribution to be acknowledged of $500, with payments to be made prior to September 30th. Donations can be made here (please insert in the comment that you are a member of the Victorian Bar, contributing to the Michael Kirby scholarship fund).
Register your interest at essoignclub@vicbar.com.au
Don't miss out on these exclusive member deals for September with some great offers and gift ideas.
Do you suffer from headaches, neck & back pain, stress or any other aches and pains?
Until the end of September 2019 we are offering all VicBar Members a 15% discount on Osteopathy with Ashley Gudgeon. To book your appointment email admin@absolutehealthperformance.com.au, phone 03 8547 4830, or pay us a visit at 199 William St.
Changes have been made to the operation and management of the Building Cases List in the republished Practice Note (effective 16 September 2019)
The Building Cases List Practice Note has been updated to:
- introduce His Honour Judge Woodward as Judge-in-Charge of the Building Cases List
- introduce weekly Directions Hearings for proceedings in the Building Cases List at 9.30am on Fridays
- set out the process and procedure for special applications, such as applications for security of payment under the Building and Construction (Security of Payment) Act 2002
- encourage the use of the full range of Appropriate Dispute Resolution options, including the introduction of Early Neutral Evaluation conducted by the Judge-in-Charge
- include standard orders for: timetable to trial, appropriate dispute resolution, single joint experts, expert conferences, joint reports and concurrent evidence as well as witness statements and outlines
The Legal Services Council has commenced its review of the Managed Investment Scheme Uniform General Rules 91A-91D and is seeking submissions from interested parties until 3 October 2019.
You can find more information here.
The latest report of the Independent National Security Legislation Monitor, Dr James Renwick CSC SC, concerning the operation, effectiveness and implications of the terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 has now been tabled in Parliament. He concluded that certain ‘operation of law’ provisions in the Act do not pass muster under the INSLM Act and should, with some urgency, be repealed with retrospective effect, but be simultaneously replaced by a Ministerial decision-making model (and thus with constitutionally entrenched judicial review), coupled with merits review as to the conduct (s 33AA), fighting or service (s 35) by the Security Appeals Division of the Administrative Appeals Tribunal, and using the special advocate model which now exists for control orders.
On 30 September 2019, the civil appeal period will increase to 42 days for most appeals, and electronic filing through RedCrest will be introduced. Updated Court rules, Court of Appeal Practice Notes and Registrar’s Notes will also commence. Practitioners are encouraged to familiarise themselves with the following prior to 30 September 2019:
- Supreme Court (Court of Appeal E-Filing and Other Amendments) Rules 2019
- updated Court of Appeal Practice Notes SC CA 1, SC CA 2 and SC CA 3
- updated general Practice Note SC Gen 19
- updated Court of Appeal Notice to Profession regarding applications for extension of time under rule 64.08
For more information please refer to the Court’s website.
By mid-2021, all 31 courtrooms and three mediation rooms will be renewed into eCourt enabled spaces to support the increasingly digital nature of matters heard at the Supreme Court of Victoria.
Practitioners are invited to see the first courtrooms that are now eCourt enabled. All are welcome to bring their devices to plug and play and experiment with connectivity and evidence presentation both wired and wirelessly.
To book into the next session on 24 September, visit here for tickets.
To book into our 11 November lunchtime session in Red Court, visit here for tickets.
For more information on the eCourts Renewal Project, visit here.
La Trobe Law School Seminar
Topic: Law and the Dead: An Institutional History of the Coroner’s Office
Presenter: Dr Marc Trabsky
Time/Venue: 11am-12 noon on Wednesday 2 October 2019 in Room SS-232, Level 2, Social Sciences Building, Bundoora campus, La Trobe University
Click here for registration and further details.
The MCLA is hosting a half day retreat on Sunday 6 October with its chaplain Fr Cameron Forbes.
The retreat will take place from 9am to 1.30pm at Corpus Christi College in Carlton. Morning tea and lunch provided. Please see www.catholiclawyers.com.au for details.
Tickets are now available for the ‘Free and Equal: An Australian Conversation on Human Rights’, hosted by the Australian Human Rights Commission (AHRC) in Sydney on Tuesday 8th October.
The conference is the centrepiece of the AHRC’s Free and Equal project and will feature special guest UN High Commissioner for Human Rights, Dr Michelle Bachelet.
According to AHRC President Rosalind Croucher AM, the conference was a once in a decade event.
“We will bring together experts on human rights as well as leaders from industry, government and the community,” Ms Croucher said.
“This is a wonderful opportunity for you to take part in reshaping human rights in Australia, and participate in this conversation, exploring ways to better protect, promote and preserve our rights and freedoms.”
Over 500 participants are expected to attend the #FreeAndEqual2019 conference at the Hyatt Regency in Sydney.
Registrations are now open for our November 6 day National Mediator Accreditation program. The program gives participants the opportunity to learn Conflict Transformation skills and receive their mediator training assessment as required by the National Mediator Accreditation System and upon successful assessment apply to become a Nationally Accredited Mediator.
Click on the below link for more information and to register.
National Mediator Accreditation Course
November 18, 19, 20, & 25, 26, 27
Visit our website www.cynglerconsulting.com for more information or join our mailing list to be kept informed on courses that are coming up.
Are you wanting to extend and enlarge your mediation skills?
Back by popular demand we have decided to run our student’s and past participant’s favourite 3 day Mediation Master Class course this November in Melbourne. Please click on the link below for information and to register.
November 11, 12 and 13, 2019
Mediation Master Class - 3 Days
Visit our website www.cynglerconsulting.com for more information or join our mailing list to be kept informed on courses that are coming up.
Deadline for the next issue:5pm, 25th September 2019