Promises, promises

UPDATE ... Email meltdown ... NSW briefs besieged with election claims and counter claims ... Tickets advocating "stability" and "neutrality" ... Priceless bauble at stake ... Vote early, vote often ... Roll out the bunting 

Election bunting: royalist revival

MEMBERS of the NSW bar are besieged by a torrent of election material from candidates in the forthcoming annual council vote-a-thon. 

The task of digesting some of these missives is not helped by the leaden language and gruesome grammar. 

The two competing camps have been described in the email correspondence as the "neutrality" ticket and the "stability" ticket. 

It doesn't get much more gripping than having a face-off between those who are neutral and those who are stable. 

The politically neutral group is led by conservative, pro-QC people such as David (Bubba) Bennett and Margaret Cunneen. 

Taking up the call from right-wing scribbler Janet Albrechtsen they object to the current executive of the bar council issuing press releases on a range of social policy issues: supporting Gillian Triggs' work on children in immigration detention; criticising politicians for conflating terrorism with wearing the niqab or burqa; rebutting the then prime minister's comments critical of the Federal Court for blocking the Carmichael mine development on environmental grounds; comments on the advancement of women in the profession; and failure to sufficiently support Dyson Heydon when he faced accusations of apprehended bias. 

The bar should not engage in "political controversy or media posturing", unless it's in support of Tory heroes, like Dyse or Tony Abbott. To do otherwise goes to issues of "governance".

Members of the neutrality team are far from neutral on the issue of QCs - an ornament they are desperate to see restored. 

From a safe distance Justinian has a couple of observations about the election campaign, so far. 

It's noticeable that the "neutralists" have not complained about a press statement in July last year, made by junior vice Arthur Moses. He supported Cunneen when she was called to give evidence to the Royal Commission into child sexual abuse, concerning her advice not to prosecute an alleged sex offender.  

Moses said: 

"In relation to the crown prosecutor's role outside of court, particularly the giving of confidential advice, such advice should be able to be given freely without fear of retribution." 

No concerns have been expressed about this statement to the media by a member of the bar's executive. 

Moses is a member of the opposing "stability" ticket and acted successfully for Cunneen in her darkest hour with ICAC. 

When it comes to proper governance, it should not be forgotten too hastily that in May this year the queenly restorationists attempted a putsch at a secret meeting where they passed a resolution adopting a return to the QC title. 

This was done without the rest of the bar council's participation or engagement. 

Advice from Bret Walker to the president, Jane Needham, said this resolution by part of the council, "raised serious issues as to the validity of the purported resolutions from both a legal and governance perspective".  

Cunneen herself is no stranger to stroking the media, giving patsy interviews to supporters such as 2GB's Ray Hadley, writing cloying columns for the right wingers bible Spectator Australia and hanging out with media celebrities like David "Flint".  

She is keen on the idea of becoming president of the bar n grill and to that end it would surprise if she objected to assistance from sections of the media.

David Bennett, in his email to members of October 13, said he disagrees with many of the things done by the bar association over the past year or two. 

This is odd, because Bennett's royalist faction has had the "numbers" on bar council for the past year - 13 out of 21 councillors is a firm majority. So much so that ultimately they were able to force the acceptance of the QC choice policy and make submissions to the government about the pressing importance to NSW of reintroducing queen's counsel. 

Here's a clip of Bennett in action from his days as Commonwealth solicitor general ... 

To appoint QCs in NSW requires amendment of section 160 of the Legal Profession Uniform Law Application Act, 2014. Even if the government supported such an change, it by no means sure that it would pass the Legislative Council.  

So, apart from abolishing press statements on worthwhile social policy issues, the other main plank of the neutralists is uncertain ever to be politically realised. 

Along the way, Bubba Bennett also had a crack at "an over-powerful employed staff", which was not particularly "punctilious" of him. 

Joining the neutral ticket are a few from the criminal bar, led by Robert Sutherland from Gar Bar chambers. 

He argued that solicitors are snitching too much of the criminal bar's bread and butter and that something had to be done about the listing problems at the Parramatta District Court, the "Bermuda Triangle" of the court system, where lawyers and parties can spend up to a week or more in the courthouse waiting for a judge. 

To counter the inroads made by the other branch he proposes that barristers become a little more like solicitors, with the flexibility of being able to use a trust account and undertaking basic tasks such as filing subpoenas. 

In this endeavour he is supported by Tom Hughes, jnr-jnr. 

ADR aficionados Nigel Cotman and Mary Walker have also signed onto the "neutral" ticket saying that its members support the development of alternative dispute resolution at the NSW bar while the stability ticket doesn't. 

Danny Feller, from Edmund Barton Chambers, is also part of the neutrality ticket and has sent out a letter decrying the bar's public comments on social justice issues, describing them as a "sustained bout of controversial posturing".

Straight out of the politicians handbook also comes a "neutralist" scare campaign that if the other ticket gets control of the bar council, it will reverse the commitment to press the government to restore the royal plumage. 

Since amendment of the legislation to reverse the prohibition on official schemes of recognition is of low or no importance to the parliament, the idea that the "stable" councillors will kill a QC revival is not hugely convincing. 

The establishment ticket, of "stable and experienced people", is led by Noel Hutley, Tim Game, Andrew Bell and Arthur Moses.  

Its platform is a model of stability itself: promotion of the administration of  justice, advancing the interests and standards of barristers and making sure there is fair and honourable practice among briefs. 

Hutley: leader of the stable ticket

Today (Oct. 16) a further missive from the traditionalists hit email in-boxes with the subject line, "civilised and respectful debate". It denied that the QC submission to the government would be reopened and said it would not engage in debate on "unfounded assertions".  

Later on Friday (Oct. 16) a group of NSW criminal barristers led by the elder statesman of crime briefs, Ian Barker, urged members to support the "stable and experienced" ticket: 

"Some candidates think that the Bar Association has become 'too political'. They are critical of the moderate positions taken by the bar defending the Human Rights Commissioner (a former dean of the Sydney University faculty of law) and the Federal Court from political attack and some aspects of the bar's advocacy about its equitable briefing policy. They want to tone the bar down. 

We want the bar council to continue to lead, to take brave and independent positions when required. This is no time to quieten the legal profession's voice." 

In truth, whoever is elected will have a job reversing the slide in the bar's fortunes. The Qld bar has found that overall the volume of its work has slipped backwards since the reintroduction of queen's counsel. 

You can find some of the NSW campaign material here  

The election results should be known on November 5. The full list of candidates is here  

Update on Thursday, October 22, 2015 by Justinian

Discussion ...

Richard Douglas • 19 hours ago

In response to Robert. Douglas not "Doglas". Nonetheless yours is a generous reading of an article which is generally informative but tainted by subjectivity. As they say in the courts often, if that is what the draftsperson meant it would have been easy to express. Apart from some modest increase in cachet with some clients particularly those from Europe and Asia, I doubt the change from SC to QC has made a great difference in Qld. The Bar Associations changed to SC in anticipation of a republic. Once those hopes were dashed, probably for several generations at least, perhaps this vestige of Commonwealth membership is worth preserving at this point. The arguments run both ways. 

Carmine • 3 days ago

Nice comment on whether the "neutral" (Luddite) group is stable...or not... Perhaps for the benefit of those of us who do not think the Bar should exclude women, the "neutral" faction could tell us why, in light of the NARS report and the fact that some floors still have few or NO women, they do not support changing the current affirmative action for males to one of equitable briefing? 

Richard Douglas • 3 days ago

While your discussion of this important topic is appreciated, best to keep it accurate. It is quite untrue for you to say that the work volume at the QLD bar has slipped since the reintroduction of the rank of Queen's Counsel. There has been no change in volume but to the extent it has that has no nexus with such introduction. To suggest as much is akin to politicians engaging in push-polling.

Robert  - Richard Doglas • 2 days ago

I read this more as a response to the claim sometimes made that reintroducing QC will somehow generate work. An absurd claim, and Queensland is a relevant data point against it.