As a result of my media comments, I find myself under attack on an important freedom of speech issue. I am a member of the Victorian Bar. I am also a journalist and media commentator.
In May 2007, another member of the Victorian Bar, Peter Hayes QC, died of a drug overdose in most tragic circumstances. As a result of Hayes’ death, in my capacity as a journalist and media commentator, I made a number of comments to the media about the serious problem of the use of drugs in the legal profession. This was a matter of legitimate comment upon an important social issue.
In doing so, I have done nothing wrong. I have simply exercised my right of free speech. I rely upon the right to a free press. The Victorian Charter of Human Rights 2006 protects these rights. Over the past five years I have had a very high media profile. At no time has the Bar Council told me that I cannot work as a journalist and media commentator.
The Victorian Bar is governed by the Victorian Bar Council which has a sub-committee called the Ethics Committee.
The Ethics Committee has been investigating me since May 2007 to establish whether my comments to the media constituted ethical offences. On 27 October 2007, the Ethics Committee wrote to me stating: “(T)he question has now arisen whether, in breach of the Practice Rules of the Victorian Bar, you have engaged in conduct likely to diminish public confidence in the legal profession or in the administration of justice or have otherwise brought the legal profession into disrepute”. They gave me until 19 November to reply and put my defence case. I have not yet replied.
The dispute between the Bar and me is a fundamental one. The Bar demands that I provide evidence of drug-taking by lawyers which would be admissible in court. Obviously I cannot do so – in fact, when I made my media comments about drugs in the legal profession, I made it very clear that I was relying upon anecdotal evidence. I expressed an opinion that there are serious drug problems in the legal profession in Australia. That is still my opinion. In fact, it is an opinion that has been expressed by many journalists. I am entitled to express such an opinion without having sworn evidence.
Like any journalist, I relied upon the “evidence” of what I had been told by a number of people, by my clients, from the conclusions that I drew from the Andrew Fraser case and the recent death of Peter Hayes QC and from other material.
There is a basic disconnect here. The Bar’s position is that I can only comment if I act upon sworn evidence. If that were the case, journalists would never be able to make a comment about any issue. The fact that I have anecdotal evidence but not sworn evidence is fundamental to this problem. My rights to freedom of speech and expression as a barrister, journalist and citizen are under attack.
In the meantime, before I could reply and state my defence, the Bar Council last week itself spoke to the media. A “member of the Victorian Bar executive” said (of this investigation into me), “these publicity hounds need their comeuppance”. This is reported in The Bulletin today.
In my opinion, that is a clear statement by the Victorian Bar Council that (1) they consider me to be a “media hound” and (2) that the current (incomplete) investigation by their sub-committee, the Ethics Committee, will deliver my comeuppance, that is, convict and punish me. My conclusion is that the allegations against me have been unfairly pre-judged. The Bar Council has decided that I am guilty and that I am to be punished.
One consequence of these allegations is that I could be disbarred, that is, I could lose my right to practise law. I have been a lawyer for 45 years so I regard this as a serious threat. Accordingly, for all the above reasons, I have decided to resign from the Victorian Bar, effective 1 December 2007. I will defend these false allegations from outside rather than within the Bar. Undoubtedly the Bar will still continue its prosecution of me and I will defend it with everything that I have.
I intend to practise as an Independent Barrister with a practicing certificate from the Law Institute of Victoria.