Cunneen slams bar association

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High-profile barrister Margaret Cunneen SC has sent a letter to NSW Bar Association members asking for support in preventing the 'disintegration' of the 'association’s credibility'.

She accused the association of “highly partisan forays into the public arena”, the ABC reported.

“I do not believe it is in the interests of the profession for our peak body to maintain an overtly ideological and partial stance,” the letter stated.

Among other examples, Cunneen’s letter cites an association press release, saying it accused then-PM Tony Abbott of racial hatred and describing him as patronising, not in line with the association’s role of looking after barristers.

“The organisation has a role as a sensible and constructive participant in law reform.  It has never been, and should not be, a soap box for senior members of Bar Council,” the letter said.

“In this last year the NSW Bar Association has made a number of highly partisan forays into the public arena.  For an organisation that relies on being taken seriously by incumbent governments, I would describe them as imprudent.”

Cunneen points out what she deems to be inconsistencies, where the Bar Association issued scathing comments about the Abbott’s reaction to the Federal Court’s decision on the Carmichael mine case but did not criticise opposition leader Bill Shorten for his attack on Dyson Heydon, a Bar Association member.

“Without being too prescriptive, I suggest a media protocol should be introduced, and amendments made to the constitution of the Bar Association,” said the letter.

“The purpose of this would be to ensure that neither the Presidency of the Bar Association (nor any other position in the organisation) can be used as a platform for the unilateral expression of ideological and personal views, as distinct from policies that have been adopted by the entire Bar Council in properly convened meetings of Bar Council.”

She concluded the letter calling for supporters of her views to come forward to make changes.

The NSW Bar Association said it would not provide comment at this time when contacted by Australasian Lawyer.
 
  • William on 6/10/2015 11:54:05 AM

    Louise states:

    “william, I often enjoy jousting with you.”

    Louise attempts to describe her behaviour as “jousting”. It is properly described as bullying as the substance of her blogging is not about legal argument but about name calling and derogatory statements. Further support for the bullying case against Louise is found in other blogs where she incites gender hatred.

    Louise states:

    “I support Needham SC's comments and praise her for the courage it must take in the face of the extreme conservatism of the legal profession to stand up for what is right, not what pleases any PM.”

    The majority in Australia decide what is right, not Louise as she insists. The PM represents the majority who elected him in. The PM has every right to speak out against the injustice against people’s right to employment.

    The comments of Louise are unreasonable on the basis that she seeks to exclude the PM but take up the right to speak out for herself and for Needham QC.

    Louise states:

    “And unlike you, I use my real name and proudly state my affiliations.”

    This is a clear example of bullying. Some websites make it clear that individuals should not be pressured to put their names on the web in blogs.

    It makes complete sense not to put one’s real name on the web because it can result in being stalked by bloggists. (I currently have a female friend who can’t get rid of a stalking female blogger)

    It is clear from the gender hatred comments in other topic areas that “Louise Steer” would potentially follow-up her blogs with direct contact.

    Furthermore, there is no guarantee that “Louise Steer” is the real name of the blogger.

    Louise states:

    “I remind you of Sir Thomas More, a lawyer in high position who stood up to a king and lost his life. We in the NSW legal profession face no such risks, so why are we so afraid of speaking out for human rights and the real rule of law, not legislation invented simply to oppress people the government decides to scapegoat for society's ills.”

    The right to speak out is clearly a right of everybody including the PM. But, in Needham’s case she was wrong in law, the PM is entitled to speak out against a Judge’s decision.

    There are plenty of historical examples of people speaking out heroically and changing the law. The following are examples of when that was a horrible thing to do: Hitler, Lenin, and Mussolini all spoke out against the monarchy.

  • Wayne on 2/10/2015 11:32:25 AM

    The self-promotion of the current president of the Bar Association is hilarious. She allowed herself to be named "Woman Barrister of the Year" recently, although I note she stopped short of insisting on "Barrister of the Year" simpliciter. Interesting that during her tenure very few women have successfully applied for silk (this year only 3 in a list of 26). Cuneen SC has certainly stood up for the rule of law, including her win over iCAC in the High Court.

  • Louise Steer on 1/10/2015 12:22:43 PM

    william, I often enjoy jousting with you, but now you have gone from unfounded assertions to simple irrationality. No one in the Greens advocates criminal activities of any kind. Their platform is on the net for all to see. And unlike you, I use my real name and proudly state my affiliations. I will continue to throw stones at the Liberals and their leaders while they continue on their current path of abusing human rights and abrogating legal rights.

    I'm off now. I support Needham SC's comments and praise her for the courage it must take in the face of the extreme conservatism of the legal profession to stand up for what is right, not what pleases any PM.

    I remind you of Sir Thomas More, a lawyer in high position who stood up to a king and lost his life. We in the NSW legal profession face no such risks, so why are we so afraid of speaking out for human rights and the real rule of law, not legislation invented simply to oppress people the government decides to scapegoat for society's ills.

  • William on 1/10/2015 11:16:45 AM

    Louis states:

    “I cited facts ie the actual breaches of international and domestic law committed on a daily basis by the Liberal government. I see much rhetoric, but no facts in your words.”

    The issue in point is the statement of Needham and her criticism of a PM who was doing what he was entitled to do. The introduction of evidence of the type of person that the PM is or is not is irrelevant. It smacks of the old law in which women victims were accused of tempting the rapist.

    The issue is clear, Needham was attacking the PM’s right to free speech and accusing him of not understanding the Westminster process.
    Louise’s comments bring to mind the obfuscation and refocussing that many government investigations do when investigating whistleblowers and other complaints. They direct their actions against the complainant and then seek to charge the complainant.

    That Louise cited what she considers facts against PM amounts to the raising of irrelevant matters in coming to a conclusion on an issue in just the same way as a recitation of the connections between the ALP and pedophilia are irrelevant to the matter.

    The issue of relevance is one that is regularly brought up in Courts, in particular an example is in criminal cases the past history of an accused is not to be raised until sentencing.
    Louise then asserts that a PM is not entitled to criticize judges as Abbott did… I’m uncertain where that assumption arose but people from all kinds of life have been criticizing judicial decision for hundreds of years… what is particularly relevant is that the Judgment had been given before the PM spoke out against it.

    What is clear is that nobody is entitled to interfere with the Court’s processes (the PM certainly didn’t do that; there is no evidence that he had bribed the judge or pressured the judge to make a particular verdict)

    The refocussing of the debate onto the victim PM does not justify Needham’s statement.

    Louise states:

    “And I would be very disappointed if most barristers are Liberal voters. That would be news to the many progressive barristers who are members of Labor or the Greens (as I in fact am) and who support progressive causes and organisations. I knew many in my time at the NSW Bar. Some even made it to judge!”

    It’s a mistake to attach yourself to a particular group as Louise did… as she takes on its reputation… it was she who threw the stone at the PM and therefore Liberal policies. One need only take a look at how progressive this Green is:
    https://www.lifesitenews.com/news/infanticide-and-bestiality-advocate-given-australias-highest-civic-award

    I draw to your attention that Louise tried to make me out to be an Abbott supporter.....

  • Louise Steer on 29/09/2015 4:23:58 PM

    As for confusing the law with politics, consider the number of lawyers in government at all levels from the local council to the Prime Minister! Laws are by their very nature not neutral or value free, but the way which governments enforce policies. There is a clear nexus between law and politics. It's neither right nor wrong (or left). It's the way things are.

    And I would be very disappointed if most barristers are Liberal voters. That would be news to the many progressive barristers who are members of Labor or the Greens (as I in fact am) and who support progressive causes and organisations. I knew many in my time at the NSW Bar. Some even made it to judge!

  • Louise Steer on 29/09/2015 4:13:18 PM

    Sophistry, william, not facts. I cited facts ie the actual breaches of international and domestic law committed on a daily basis by the Liberal government. I see much rhetoric, but no facts in your words.

    And the PM is not entitled to criticise judges as Abbott did. The Westminster system has 3 branches, providing checks and balances on each other. Parliament is not in control of the other 2 branches ie the judiciary and the bureaucracy. They operate independently. In the case of the judiciary, they exist to review legislation to make sure it is constitutional and within the powers of parliament to make. That is their role and the High Court has been very busy in the last 2 years doing just that. Criticising the judiciary for fulfilling their role in our system of government is unwarranted political interference by the Prime Minister. Parliament's only power over the judiciary is to impeach judges who done something illegal and to change legislation if the courts have found it wanting eg invalid. Those are the appropriate responses, not criticising particular judges or decisions which the PM does not agree with. He was keen on the captain's call, but every team player is required to obey the umpire's call. The courts and judiciary are the umpires in our political system.

    Needham SC was perfectly correct in pointing this out and supporting the judiciary as she did. Cuneen SC is out of line in her political attack. Obviously Cuneen SC wants to be the next Bar Association President, which means it will sink back into its usual "apolitical" but actually partisan conservative torpor.

  • william on 29/09/2015 2:36:41 PM

    Louise states:

    “william. you're back again! Obviously you're an Abbott fan. This puts you in the minority, even his own party turned on him because he had become too extreme.”

    Louise is clearly trying to politicise this matter. I certainly am not an “Abbott fan” as Louise’s bullying post indicates. My post’s are clearly with the view of addressing the “legal” issues and not so much the political issues. I’d invite other readers to consider the nature of Louise’s posts as to whether they are actually trying to deal with the “law” or whether she is trying to make a “political statement”.

    Louise states:

    “Exactly in what way was Needham SC in error at law in her comments?”

    In the simplest terms (I have already posted the reasons why there is an error in law elsewhere): Politicians are the legislators and as such may comment publicly on all kinds of issues in order to change legislation; they need to make the public aware of their reasons for making change. In Needham’s case she argued that PM was not entitled to criticise Judges. That is the error in law.

    Louise has then made a number of comments about the policies of the Liberal government that are irrelevant to the comments of Needham. They are merely Louise’s political observations.

    The decision makers in regards to the issues and legislative procedures are the voters and they are the ones than can oust governments that fail to meet the people’s wants.

    Louise states:

    “When laws are unjust. it behoves lawyers to speak out against injustice.”

    Free speech is a different matter from what Needham QC/SC was saying. Needham “dragged in” her Bar Association when that was not within the ambit of the association. In any case, it is likely that most barristers are liberal voters; we’ll find out at the next Bar Association elections”

    Needham has an entitlement to put her personal views in the public arena but she should have distanced herself from her position at the Bar Association. Needham’s argument clearly tried to minimise the right and responsibility of the PM to ensure that the people who elected the PM get what they voted for...if the party does not keep the majority of people happy then the party will be voted out.

  • Louise Steer on 29/09/2015 12:09:24 PM

    william. you're back again! Obviously you're an Abbott fan. This puts you in the minority, even his own party turned on him because he had become too extreme.

    Exactly in what way was Needham SC in error at law in her comments? It is a matter of record that the Liberal government has taken away an enormous number of human rights previously taken for granted. The treatment of refugees in offshore detention camps breaches international law including the UN Convention on Refugees. the UN Convention on the Rights of Women and the UN Convention on the Rights of the Child, to all of which Australia is a signatory. Domestically, the Liberal government breached its own laws on approval of projects with major environmental impacts such as the misbegotten Adani mine, as the High Court stated. The Liberal government has also attempted to criminalise Australian citizens who engage in peaceful protest - and it is thanks to the courts of NSW that they failed. The ridiculous example of the environmentalist "Karen" in the anti terrorist manual distributed to schools shows how extreme those policies have become. Our basic hard won common law freedoms are under threat and many have already been abolished or weakened eg habeas corpus. right to silence, now juries are under threat as well.

    When laws are unjust. it behoves lawyers to speak out against injustice. If we don't, we're just useless paper shuffling shysters. The law is both a sword and a shield, and we lawyers should be warriors wielding both tools with equal ease.

  • william on 26/09/2015 1:59:50 PM

    Jane Needham’s attack on the PM was not only political but incorrect in law. Its unlikely that the head of the bar will be held accountable for misinforming the public on the legal position of a politician's right and responsibility to challenge judicial decisions on behalf of the politician's electorate and in the assessment of justice.

    The "pot calling the kettle black" applies to the Bar Association. One only needs to examine the QC/SC eligibility and candidacy requirements to find that there exists political bias. The main criteria is a person's ability to get into the correct chambers; its been long known that one particular chambers and floor realises a significant more amount of QC/SC appointees.

    Furthermore, complaints against the stacked barristers process means that a complainant needs to use a barrister to prosecute the complaint. Fees for losses are extraordinarily expensive ($35K+ is not out of the question). This prohibitive cost means that a large number of complaints go unaddressed.

    What of the barristers standing in the community? I can still remember the "bankruptcy controversy" where barristers declared bankruptcy after handing all their money over to the spouse and in that way they avoided tax. Hmmmm. You might remember Cummins esq who by recollection hadn't paid taxes for about forty five years and had to pay $1m to ATO. I understand that the judge questioned him on why he had done nothing to pay back the money and he according to newspapers declared that he was "scared".

    A lot to be said of ethics of barristers and others in the law....

    The "mateship-style" scrutiny to nominate a person for QC needs to be scrapped as the mateship model does not scrutinise ethics and political sobriety.

    Cleary the involvement of the Heads of Law Society and Bar Association in the public arena must focus on legal issues and not political defamation the likes of what was seen in the attack on PM Abbott.

    Jane Needham’s betrayal of her elector barristers requires that she repent of the incorrect in law that damns politicians from speaking out against judicial decisions.

    Ms Jane Needham is aware that barristers are required to correct misrepresentations in court and it therefore stands that she needs to correct her public legal error.

  • Jane Rawlings on 25/09/2015 6:07:30 PM

    And yet that is precisely what Margaret Cuneen SC is doing - using her position on the NSW Bar Council (and access to the membership database in sending her email to members) to "peddle [her] own personal views."
    Once again we see the hoary old tropes trotted out. What is this loss of "public credibility" of the NSW Bar Association and of the Bar and how are either "disintegrating"? Do we really want the elected leaders of the Bar muzzled in the way Cuneen SC wants? How does this breach of Cabinet solidarity, for want of a better word, by Ms Cuneen SC advance the interests of justice and the NSW Bar?
    I expect the NSW Bar Association to stand up for the administration of justice and for a strong independent justice system, including an independent Bar. We elect members of the Council to show leadership by doing this. This is what the Council of the NSW Bar Association are doing here in this maligned policy statement http://www.nswbar.asn.au/docs/webdocs/election_24022015.pdf and here in the August 2015 review of the Equitable Briefing policy of the Law Council of Australia http://www.nswbar.asn.au/docs/webdocs/eb_report_01092015.pdf, by way of example.
    We can always vote in a new batch of Councillors next year if we disagree with their views.

  • Suzie Broome - solicitor on 25/09/2015 2:53:14 PM

    I agree with the views expressed by Ms Cunneen SC and also with those views expressed by my colleague, John Henshaw.

    Organisations who exist supposedly to represent their members must not allow certain members to use the organisation to peddle their own personal views.

  • Lyn McDermott on 25/09/2015 2:42:18 PM

    Totally agree with Margaret Cunneen !

  • Lynden Hopper on 25/09/2015 2:35:12 PM

    It disturbs me that I have the impression that the Bar Association holds itself above the rest of us and holds a brief to have forays into the public arena. I often wonder if these views are referred to those others who are being represented.

  • Lynden Hopper on 25/09/2015 2:29:28 PM

    Just hope the Bar Association makes the changes.

  • Louise Steer on 25/09/2015 2:27:03 PM

    The NSW Bar Association has always been partisan. Until recently, it was invariably on the side of Liberal Party. The current leadership of the association is showing genuine leadership by standing up for human rights and flagrant abuses of law by the current federal Attorney General and past and present Immigration Ministers. There is nothing wrong with challenging unjust laws, that is what lawyers do all the time. Ms Cuneen holds a public position and is no stranger to controversy. Why does she want to stifle debate and comment in the profession?

  • SL on 25/09/2015 2:18:48 PM

    Totally concur with Ms Cunneen.

  • John Henshaw Solicitor on 25/09/2015 2:05:36 PM

    Nothing makes me more furious than little groups of left or right ideologues presuming the right to make political comments on behalf of their members. That comment equally applies to the Law Society of NSW or any other body purporting to represent the political views of its members.

  • Kerry Davis on 25/09/2015 1:14:45 PM

    I agree with the sentiments and proposed reform by Ms Cunneen SC and consider her letter to be a courageous statement.

  • Stephen Earl on 25/09/2015 1:04:55 PM

    Bunch of fascists!

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