IBA Conference in Miami

Law Council President, Tass Liveris, together with Deputy CEO and Director, International Margery Nicoll attended the International Bar Association (IBA) Annual Conference held in Miami between 30 October and 4 November 2022.

At meetings of the IBA Council and Bar Issues Commission (BIC), the President and Director, International raised the contempt proceedings brought by Fiji’s Attorney General against senior Fijian lawyer Richard Naidu, who is a highly regarded member of the BIC Policy Committee.

The President had two speaking engagements during the Conference. Together with Fiji Law Society Vice President Wati Seeto, the President delivered a presentation at the IBA Bar Issues Commission Bar Leaders Forum titled The role of the independent bar to defend the rule of law in the Pacific. The President also served as a panelist in the American Bar Association Bar Breakfast session titled ‘Is the rule of law dead?’ alongside ABA President Deborah Enix-Ross and Chair of the ABA International Law Section, Marcos Ríos. The session was moderated by IBA BIC Vice Chair Steven Richman.

The Law Council also hosted a highly successful reception on 3 November 2022 at the Miami offices of Jones Day. The Law Council has for many years hosted a social function in the margins of the IBA Annual Conference. The Law Council is grateful to Jones Day, and Executive Member of the International Law Section, Fred Chilton, for arranging to showcase Australian wines of Tyrrells and d’Arenberg.

35^th Annual LAWASIA Conference in Sydney

LAWASIA held its 35^th Annual Conference in Sydney between 18-21 November 2022. The first face-to-face LAWASIA Annual Conference since 2019 attracted 320 delegates from 30 jurisdictions.

The President spoke at the Opening Ceremony on 18 November 2022, and Gala Dinner on 20 November 2022, which was sponsored by the Law Council. The President was also a panelist in a session titled Human Exploitation: Modern Slavery, People Trafficking and Refugees, reflecting on the efficacy and future direction of Australia’s modern slavery legislation.

The Conference provided the opportunity for the President, Chief Executive Officer and International Division to meet with the LAWASIA President and senior officeholders, and bar leaders from Fiji, Japan, Malaysia, Hong Kong, India, and England and Wales.

The Conference was preceded by the annual LAWASIA Council Meeting on 18 November, attended by bar leaders from 17 jurisdictions across the ESCAP region. The Law Council congratulates Arthur Moses SC on his election to LAWASIA’s Executive Committee for 2023, and appointment as Co-Chair of LAWASIA’s Human Rights Committee.

The Law Council is delighted to announce that from 1 July 2023, it will host the LAWASIA Secretariat. The current staff members will work remotely from Sydney; however finance, human resources and IT support will be provided through the Law Council Secretariat in Canberra.

National Principles to Address Coercive Control

On 5 December 2022, the Law Council lodged a submission to the Commonwealth Attorney-General’s Department in response to a consultation on proposed ‘National Principles to Address Coercive Control’. These National Principles are being developed by the Australian Government and state and territory governments, with the aim of creating a shared national understanding of coercive control which is important for improving the safety of Australians, particularly women and children.

In its submission, the Law Council was highly supportive of the development of National Principles, noting that effective responses to coercive control will be greatly assisted by nationally consistent policy settings.  A key challenge highlighted in the submission was the nature of coercive control as a pattern of behaviour over time, meaning that it may be commonly unrecognised and underdefined as a form of family violence, which impacts the ability of victim-survivors to access appropriate protection and legal services.  The Law Council also commented on the merits of a standalone offence of coercive control, noting that while this will ultimately be a matter for states and territories, there are definitional challenges that must be considered in depth, in addition to the potential for adverse unintended consequences (including misidentification) if criminalisation is not coupled with appropriate educational and training programs for those responding to family violence concerns.

Review of the Modern Slavery Act 2018 (Cth)

On 13 December 2022, the Law Council made a submission for the purposes of a statutory review of the Modern Slavery Act 2018 (Cth).

The Modern Slavery Act was conceived as a scheme which, by requiring large corporate entities operating in Australia to publicly report on the measures to address the risk of modern slavery arising in their operations and supply chains, would generate a shared culture of transparency and accountability and inspire those entities to develop best practice. The Law Council has been a strong supporter of the passage of the Modern Slavery Act and recognises that the Act has had a positive impact by increasing Australian entities’ understanding of modern slavery and the need to improve their risk management practices.

In its submission, the Law Council recommended a number of amendments and other measures to buttress the transparency ethos with greater regulatory controls and incentives for entities to comply with their reporting requirements imposed by the Act. These included:

• establish an Anti-Slavery Commissioner responsible for the performance of key regulatory measures— education, assessment and advice;
• introduce civil penalties for non-compliance with reporting requirements in certain circumstances, as well as additional regulatory tools to aid compliance;
• lower the annual turnover threshold that determines which entities are subject to the scheme, albeit subject to a tiered approach which gives smaller entities a regulatory amnesty on entering the scheme;
• measures to improve the clarity and utility of the register of modern slavery reports; and
• consider strengthening the manner in which Commonwealth entities properly consider the risks of modern slavery in their procurement decisions.

The Law Council is grateful for the considerable input from constituent bodies, Sections and advisory committees for the purposes of this submission, which have contributed to a balanced submission on behalf of the legal profession. It is noted that the Law Council reserved its position on the introduction of a duty of due diligence in relation to modern slavery risks into the Modern Slavery Act and it anticipates it may consult further on developing a position on this issue in 2023.

The Law Council expects to also engage constituent bodies, Sections and advisory committees in the New Year on a response to consultations and inquiries directed at giving effect to other actions under the National Action Plan to Combat Modern Slavery 2020-25, including a a targeted review of the modern slavery offences in Division 270 and 271 of the Criminal Code and a targeted review of support and legislative protections, defences and remedies available to modern slavery victims and survivors, particularly women and children, taking into account existing reviews and inquiries.

Corporate insolvency in Australia public hearing

The Business Law Section gives thanks to our members Mr Chris Pearce, Mr Bruce Collins, Mr David Walter and Mr Tony Ryan for representing the BLS at the Parliamentary Joint Committee on Corporations and Financial Services’ public hearing in Sydney on 14 December 2022 as part of its inquiry into corporate insolvency in Australia in Sydney.

We also wish to extend our sincere thanks to all those who contributed to our submission.

You can read a copy of the BLS' submission here.