{"id":4434,"date":"2012-12-12T16:10:32","date_gmt":"2012-12-12T05:10:32","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=4434"},"modified":"2012-12-12T16:10:32","modified_gmt":"2012-12-12T05:10:32","slug":"excerpts-from-alj-volume-86-part-11-november-2012-current-issues","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2012\/12\/12\/excerpts-from-alj-volume-86-part-11-november-2012-current-issues\/","title":{"rendered":"Excerpts from ALJ Volume 86, Part 11 (November 2012): Current Issues"},"content":{"rendered":"

CURRENT ISSUES<\/strong><\/p>\n

Guest Editor: \u00c2\u00a0Justice Clyde Croft<\/strong>
\nSupreme Court of Victoria<\/em><\/p>\n

Federal Circuit Court of Australia<\/strong><\/p>\n

The Commonwealth Attorney-General, Nicola Roxon, announced on 12 September 2012, that the Federal Magistrates Court would be renamed the Federal Circuit Court of Australia and the current 63 Federal Magistrates would be judges in the renamed court.<\/p>\n

The Attorney-General said that the new name and title of \u00e2\u20ac\u0153judge\u00e2\u20ac\u009d, \u00e2\u20ac\u0153will better recognise the character and importance of the work undertaken by the court\u00e2\u20ac\u009d. In terms of court hierarchy and \u00e2\u20ac\u0153relativities\u00e2\u20ac\u009d as between State and federal court hierarchies, the change better reflects the current reality that the Federal Magistrates Court has, particularly given the nature of its work, been equated with State intermediate courts, rather than State Magistrates\u00e2\u20ac\u2122 Courts.<\/p>\n

Of course, as Chris Merritt observed in an article in The Australian<\/em> of 13 September 2012, these changes will raise issues of remuneration and relativities as between the newly named court and remuneration of judges in the State intermediate courts. For example, he says: “At the moment, Federal Magistrates earn $305,070, which is $23,490 more than their counterparts in the NSW magistracy but $46,900 less than NSW District Court judges.”<\/p>\n

He continues: “The changes to the Federal Magistrates Court come just days after Ms Roxon increased spending on the courts by $38 million. That increase, across four years, is linked to higher fees for the federal court system that are expected to give the government $100 million in extra revenue.”<\/p>\n

Women in the law<\/strong><\/p>\n

In contrast to the position discussed in our note in September ((2012) 86 ALJ 575 at 576<\/a>) with respect to flexible working hours for women with children in law firms, Lawyers Weekly<\/em> of 7 September 2012, paints a more positive picture, particularly as a result of the efforts of Jane Needham SC, Junior Vice President of the Bar Association of New South Wales, and others to establish flexible work arrangements. One step in this direction was the amendment to the New South Wales silk protocol, which was passed unanimously when Ms Needham applied for silk in 2004, to include explicit reference to part-time or flexible practice not being a bar to appointment as silk. Other barriers to advancement, more in the nature of perceptions rather than formal, discussed are work practices and, what may be described as \u00e2\u20ac\u0153gravitas\u00e2\u20ac\u009d. Addressing these issues, Lawyers Weekly<\/em> noted comments by both Needham and Justice Virginia Bell which indicate that these barriers are at least diminishing at the Bar:<\/p>\n

Having had a flexible practice for 10 years, Needham says she is a \u00e2\u20ac\u0153huge advocate\u00e2\u20ac\u009d of these new projects that promote diversity. She believes the Bar needs to reject the perception that 60 hours is the minimum working week for a barrister. On a positive note, she adds that judges are becoming more receptive to flexible work arrangements and family issues when setting court timetables.<\/p>\n

\u00e2\u20ac\u0153Attitudes are changing\u00e2\u20ac\u009d, Needham adds.<\/p>\n

Outdated perceptions of the skills needed to be an effective barrister are also being challenged, she continues, referring to comments made by High Court judge Virginia Bell on rhetoric.<\/p>\n

In a keynote at the Australian Woman Lawyers conference in August, Bell dismissed the idea that rhetoric is the mark of an effective barrister. She argued that the view that a barrister must have \u00e2\u20ac\u0153a commanding physical presence \u00e2\u20ac\u00a6 and voice, and an eloquence of style and address\u00e2\u20ac\u009d is a myth that discriminates against women.<\/p>\n

This \u00e2\u20ac\u0153irrational\u00e2\u20ac\u009d opinion is one of the reasons why female barristers are not receiving the same quality of work as men of similar experience and ability, she told delegates: \u00e2\u20ac\u0153There exists an impression that men are superior to women in the ability to present a case in court\u00e2\u20ac\u009d.<\/p>\n

Needham agrees that, on occasion, there is client resistance to working with a female barrister. She believes that clients need to be educated on this issue, echoing Bell\u00e2\u20ac\u2122s plea to lawyers to \u00e2\u20ac\u0153redress this misconception in their discussions with clients\u00e2\u20ac\u009d.<\/p>\n

Bell also claimed that judges today prefer reason rather than style of delivery, to dominate court proceedings \u00e2\u20ac\u201c a view Needham shares.<\/p>\n

\u00e2\u20ac\u0153I don\u00e2\u20ac\u2122t believe there is any perception by judges that women are any less capable than men\u00e2\u20ac\u009d, Needham says.<\/p>\n

While Bell believes there is no longer a place for colourful advocacy in modern litigation, letting go of traditions does not come easily to barristers, who have been bewigged and robed for centuries, despite the impracticality of this attire in Sydney\u00e2\u20ac\u2122s summer months. However, the changes of the past year may very well be a sign of things to come, as visionaries at the Bar, who are increasing in number, are making moves to modernise what is often perceived as the stuffy barristers\u00e2\u20ac\u2122 profession.<\/p><\/blockquote>\n

These issues are not issues solely of concern to or with respect to women. Nevertheless, their significance in terms of career advancement is more significant for women than for men, as is clear from Michael Pelly\u00e2\u20ac\u2122s article in the Legal Affairs section of The Australian<\/em> of 14 September 2012, where he said:<\/p>\n

While women comprise more than 50% of law graduates, it will take time for these numbers to be transformed into practising lawyers. At the largest Bar in the nation, NSW, the divide is 81:19. Only 6.7% of those women are silks.<\/p>\n

Of the almost 60,000 solicitors in Australia, the split is 55:45 in favour of the blokes. At partner level it is 79:21.<\/p><\/blockquote>\n

The position of the Victorian Bar is not dissimilar to the New South Wales Bar, the corresponding figures (taken from Victorian Bar Membership Statistics published in February 2012) indicate that women comprised 25.3% of members of the Victorian Bar (24% are juniors and 1.3% are silks).<\/p>\n

A more encouraging picture is presented by the figures for judicial appointments, as Michel Pelly comments:<\/p>\n

Some of those partners have found their way to the bench, such as Julie Ward of the NSW Supreme Court and formerly with Mallesons Stephen Jacques. She is one of 11 females among 51 full-time judges (22%) on the largest superior court in Australia. At the NSW District Court \u00e2\u20ac\u201c the latest second-tier court \u00e2\u20ac\u201c 17 of the 65 (26%) judges are women. \u00e2\u20ac\u00a6 Over the past five years the numbers are even more impressive. For example, there have been 23 appointments to the Federal Magistrates Court since 2007 of which 11 (48%) are female. The Family Court led the way for courts of more than 10 judges, with 43% of its judges being female.<\/p>\n

The clear winner among all state courts was the County Court of Victoria with 41% (27 of 66), while the most female friendly supreme court was in Queensland (9 of 26, 35%).<\/p>\n

Pioneers such as Mary Gaudron, Elizabeth Evatt and Jane Matthews have rightly pointed out the judiciary can hardly be representative of society if it is dominated by men.<\/p>\n

At 28% there is still some way to go, but even they would recognise that females have never had it so good when it comes to the bench.<\/p><\/blockquote>\n

Tradition always seems to be part of the mix in relation to these issues, as Justice Bell observed. While tradition has a place in a stable society, once it becomes an excuse to maintain the status quo at the expense of a very large section of the legal profession and society, and results in the waste of talent and denial of satisfaction in the development of a career based on merit, it is clearly destructive and ought to be challenged vigorously.<\/p>\n

Tradition and the law<\/strong><\/p>\n

Speaking of tradition, the law is one profession where tradition really dies hard. For example, one must wonder at the utility of junior counsel continuing to dress in the mourning dress for the death of Charles II in 1685 \u00c2\u00a0(a \u00c2\u00a0position demonstrated in a very interesting article by Professor Sir John Baker QC FBA,1<\/sup>\u00c2\u00a0Professor of Legal History in the University of Cambridge) and wigs, which were merely 17th-century gentleman\u00e2\u20ac\u2122s dress rather than the then more expensive true dress of the Bar.<\/p>\n

At the end of the mourning period, junior barristers would not return to the true dress of the Bar, in spite of attempts by the judges and others to persuade to them to do so. On the final day of the Michaelmas Term in 1697, Sir John Holt, Chief Justice of the King\u00e2\u20ac\u2122s Bench, \u00e2\u20ac\u0153ordered all barristers to appear next term in their proper gowns and not in the mourning ones, as they have done since the death of King Charles\u00e2\u20ac\u009d.2<\/sup> The Lord Chief Justice did, apparently, have some success but the order did not stand for long.3<\/sup><\/p>\n

Even the origin of this tradition has been lost in the myths of more modern times. Perhaps this should be regarded as encouraging, as it indicates that traditions are not immutable and can be questioned once they are understood, even to the extent of considering more modern and practical dress.<\/p>\n

1. Baker JH, \u00e2\u20ac\u0153History of the Gowns Worn at the Engish Bar\u00e2\u20ac\u009d (1975) 9 Costume<\/em> 15.<\/p>\n

2. Baker, n 1 at 18, referring to Luttrell N, A Brief Historical Relation of State Affairs<\/em> (1854) iv, 299.<\/p>\n

3. Baker, n 1 at 18.<\/p>\n

Click on the\u00c2\u00a0citation for\u00c2\u00a0the full\u00c2\u00a0article: (2012) 86 ALJ 723<\/span><\/a>.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

CURRENT ISSUES Guest Editor: \u00c2\u00a0Justice Clyde Croft Supreme Court of Victoria Federal Circuit Court of Australia The Commonwealth Attorney-General, Nicola Roxon, announced on 12 September 2012, that the Federal Magistrates Court would be renamed the Federal Circuit Court of Australia and the current 63 Federal Magistrates would be judges in the renamed court. The Attorney-General […]<\/p>\n","protected":false},"author":9,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[179],"tags":[777,2226,2786,2787,2788],"class_list":["post-4434","post","type-post","status-publish","format-standard","hentry","category-the-australian-law-journal","tag-current-issues","tag-federal-magistrates-court","tag-judge","tag-lawyers-dress","tag-women-in-law"],"_links":{"self":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts\/4434","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/users\/9"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/comments?post=4434"}],"version-history":[{"count":0,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts\/4434\/revisions"}],"wp:attachment":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/media?parent=4434"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/categories?post=4434"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/tags?post=4434"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}