Annual Report 2008 - 2009

Annual Report 2008 - 2009 THE NSW BAR ASSOCIATION | ANNUAL REPORT 2008 - 2009 Contents Section 1 The year in review President’s report 1 Executive director’s report 4 Section 2 About us Offi ce bearers 8 Our people 9 Statistics 10 Section 3 Reports Promoting the interests of practising barristers 12 Arranging & promoting continuing professional development 16 Making recommendations and promoting the administration of justice 18 Promoting access to justice 26 Questions as to professional conduct 31 Section 4 Appointments 38 Section 5 Financial statements Bar Association fi nancial statements 47 Barristers’ Benevolent Fund 73 Indigenous Barristers’ Trust 92 Corporate Directory Registered office Bankers Incorporating the annual report of Selborne Chambers National Australia Bank The New South Wales Bar Association 174 Phillip Street 75 Elizabeth Street ABN 18 526 414 014 Sydney 2000 Sydney 2000 Ph : + 61 2 9232 4055 The Indigenous Barristers’ Trust Fax :+ 61 2 9221 1149 Annual General Meeting ABN 53 124 431 831 www.nswbar.asn.au The Annual General Meeting will be held at 1.00pm on November 2009 in Financial results for Auditor the Bar Association Common Room. Barristers’ Benevolent Association of NSW HLB Mann Judd (NSW Partnership) ABN 18 466 736 745 Level 19 207 Kent Street Cover photo: Troy Bendeich / Sydney NSW 2000 Newspix E-mail: [email protected] www.hlb.com.au The year in review President’s report Anna Katzmann SC The Legislative Review Committee no place for legislation of this kind, but expressed concerns about the absence alive to the political realities, we suggested of ‘robust consultation’ on the Bill and a number of amendments designed to reported that: ameliorate some of the worst features of the scheme. The Opposition expressed the broad covert search warrant powers support for the legislation, although it did signifi cantly trespass on personal rights move some of our proposed amendments. and liberties, particularly in regard to The Greens expressed opposition and persons not suspected of serious criminal activity. The Committee also believes that moved others. It is regrettable that the the Act contains insuffi cient safeguards to government accepted none of these address these.2 amendments. In Ousley v The Queen3 McHugh J said of The legislation provides NSW police provisions in the Commonwealth Crimes with extraordinary powers to invade Act that make it mandatory for a police our privacy without our knowledge. The offi cer executing a search warrant to make powers enable the police to enter the a copy of it available to the occupier of President Anna Katzmann SC premises, not merely of suspects, but the premises, also of their hapless neighbours, and search and seize items without notice Such provisions refl ect the desire to Standing up for rights and using a subterfuge. What is more, achieve an appropriate balance between a the householder may not know that the person’s rights of privacy and the need to Last year in these pages I referred to search has been conducted for a period facilitate the gathering of evidence the furore over the World Youth Day of up to three years afterwards. Until this against, and the apprehension and Regulation, part of which the Federal legislation, powers of this kind were only conviction of, those who have broken the Court held could have a ‘chilling’ effect exercisable in terrorism cases and then criminal law. Recognition is given to the on the exercise of the right of free only by the NSW Police Counter-Terrorism importance of enabling persons whose speech. Noting the absence of human Co-ordination Command and units of rights of privacy stand to be affected to rights legislation in New South Wales satisfy themselves of the authority for the NSW Crime Commission involved in or nationally, one did not need to be a such action… terrorism-related investigations. Now they soothsayer to predict that more legislation apply to all law-abiding citizens, cover a of this kind would follow. In Ballis v Randall4 Hall J set aside three search warrants executed covertly by NSW Crime Commission offi cers. He ...it is diffi cult to see any justifi cation for the acknowledged that investigating offi cers conferral of such extraordinary powers in a liberal might fi nd covert search warrants highly desirable – even necessary – and observed democracy. that it could be inconvenient not to be able to execute a search warrant without the knowledge of the occupier. However, This year (without public consultation) wide range of indictable offences and may he went on to say: the New South Wales Parliament passed be used by ordinary police offi cers. As I said at the time the Bill was introduced [I]nconvenience in carrying out an object the Law Enforcement (Powers and into the parliament, it is diffi cult to see authorised by legislation is not a ground Responsibilities) Amendment (Search any justifi cation for the conferral of for eroding fundamental common law Powers) Bill, legalising the use of covert such extraordinary powers in a liberal rights”: Plenty v Dillon (1991) 171 CLR at search warrants in the investigation 654 referred to by the Full Court of the democracy. Certainly, no good reason of numerous criminal offences. It High Court in Coco v R [1993-94] 179 CLR has been offered. Having regard to the was trumpeted as ‘part of the State 427 at 436. breadth of the powers it was particularly Government’s ongoing commitment disappointing that the government chose Yet, it appears that the NSW Parliament to providing law enforcement agencies not to consult on the proposed changes. decided that inconvenience to the police with the necessary armoury to respond should trump the right to privacy. And it effectively to major crime and keep the The Bar Association briefed members of did so despite the lack of any empirical community safe’.1 parliament about the implications of the proposals. Despite our view that there was evidence showing the need for these New South Wales Bar Association Annual Report | 2008 - 2009 | 1 The year in review President’s report Australian prototype and compared it to the old consorting laws of the Askin government about which the Wran Labor government had been very critical. During the brief window of opportunity available to it, the Bar Association again briefed parliamentarians on our concerns, which were of the same order as those later voiced by the Legislation Review Committee, but both the New South Wales Government and Opposition, keen to be seen to be doing something about outlaw motorcycle gangs, seemed to be unable to see the wider picture. Premier Nathan Rees at a NSW Police briefi ng on violence related to outlaw motorcycle gangs, 23 March Fortunately, with the change of 2009. Photo: Tracey Nearmy / AAP Image government federally, there has been much greater consultation with the covert search warrants and without proper by the ombudsman for two years. profession about these sorts of issues. In consideration of whether this legislation Although the ombudsman reported to September last year the association co- was a proportionate response to the the government, the government has hosted (with the Law Council of Australia) concerns apparently raised by the police, not tabled his report. Why the legislation a Federal Criminal Law Conference, which presumably in the wake of the decision in was introduced before the ombudsman’s was designed to feed into a forum later Ballis v Randall. report is made public is a mystery. in the month in Canberra organised by The NSW Government appeared to share Our experience with the covert search the minister for home affairs. A number of these concerns when covert warrant warrants legislation was replicated when highly qualifi ed members of the bar and powers were originally proposed for the government introduced the Crimes bench from across the country attended terrorism-related offences in the Terrorism (Criminal Organisations Control) Bill, and presented papers. The association also Legislation (Warrants) Bill 2005. The then only in this case there was even less attended and contributed to the Canberra attorney general, the Hon Bob Debus MP, time for debate. The Bill was introduced forum. The purpose of both events was noted at the time that: General criminal activity has never aimed Some opponents of human rights legislation to perpetrate the mass taking of life, the widespread destruction of property, or the have argued that a scrutiny of bills committee is wholesale disruption of society in the way that terrorism does. The powers in the bill suffi cient to protect our rights from ill-conceived are not designed or intended to be used parliamentary incursions. However, the NSW for general policing. Their use is restricted to the NSW Police Counter-Terrorism experience suggests otherwise. Co-ordination Command and to the units of the NSW Crime Commission assigned into the lower house on 2 April, passed to generate ideas to improve the federal the task of investigating and responding through both houses that same day criminal law. In July this year the Australian to terrorism. Law enforcement agencies and commenced the following day. The Government released a discussion paper already have a wide array of investigation Legislation Review Committee expressed on proposed amendments to the national powers at their disposal and they will all its concerns that the Bill would criminalise security legislation. The association continue to be employed in the fi ght a person’s associations rather than ‘a guilty is contributing to the Law Council’s against terrorism.5 act of a specifi ed criminal conduct’ and response and may lodge its own separate would deny a person’s right to freedom submission. It is a pity that the New South When the government introduced its anti- of association, contrary to article 22 of Wales Government is apparently unwilling terrorism legislation in 2005 it announced the International Covenant on Civil and to follow the example of its federal that the covert warrants scheme would Political Rights.

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