Felicity Graham, from Sydney’s Black Chambers, has been a lawyer for over 15 years and was admitted to the NSW Bar in 2015.

She practices predominantly in criminal law, intentional torts, administrative and constitutional law as well as inquests and inquiries.

In particular, she’s interested in the legal mechanisms for protecting fundamental human rights and for achieving police and government accountability.

To that end, she’s been successfully involved in cases challenging laws that curtail the right of protest:

Lees v State of New South Wales – restricting protests in or near places of worship … Impermissible burden on the implied freedom of political communication.

Commissioner of Police (NSW Police Force) v Joshua Lees – led the case for the Harbour Bridge March for Humanity that allowed an estimated 300,000 to march across the bridge in protest at the worsening crisis in Gaza.

Stuart v Minister for Transport – leading the argument for Rising Tide that a notice to exclude climate protest vessels for a large area of Newcastle harbour and offshore was invalid.

Kvelde v State of New South Wales – The Knitting Nannas case – A constitutional challenge which succeeded in invalidating certain anti-protest and criminal offences in relation to major facilities.

Jarrett v State of New South Wales – Legislation in the wake of the Bondi attack giving police power to restrict public assemblies was found by the NSWCA to be an impermissible burden on the implied freedom of political communication.

Her career began as a tipstaff to Justice Graham Barr before she headed to western NSW and the Aboriginal Legal Service, ultimately with the roles of Principal Legal Officer and Trial Advocate for the Western Region.

Felicity is also a host of the ground-breaking legal podcast The Wigs.

Describe yourself in three words.

Fierce middle child.

Books and films – what are your favourites?

Anything that Mary Oliver or Wisława Szymborska have written.

Other recent favourites include “Living Greatly in the Law: Hal Wootten’s selected writing and speeches”, “Ian Barker QC: Prince of Barristers” by former District Court judge Stephen Walmsley and “Moving the Bar: My Life as a Radical Lawyer” by Michael Ratner, an American human rights lawyer.

I am otherwise a very recalcitrant member of my fiction-only bookclub. Favourites in that setting for me have been “Puckoon” by Spike Milligan, “Infinite Jest” by David Foster Wallace and “Milkman” by Anna Burns.

As for films – generally something that is fun with a top soundtrack like “Sister Act”, “Cinema Paradiso”, “Strictly Ballroom”, “The Sapphires”. “Man on Wire”, “Gravity”, and “Tenet” are some others that come to mind.

“Samson and Delilah” is perhaps the film that has been most impactful on me, and whilst it is certainly a wonderful piece of artistic work, it is too haunting and devastating to be a favourite. 

When are you happiest?

It may be nominative determinism but I mostly default to happy. In no particular order: soaking up the big skies and the bird calls of the outback (love the Mundi Mundi plains outside Broken Hill); big wins in court shared with a team of colleagues and the client; building blanket cubby houses with my daughters and husband and relishing in the giggle-a-thon that follows; marvelling at the work of artists (many in my own family); riffing off Jim, Manny and Stephen on The Wigs podcast; trying my own hands at making things like ceramic wheel-throwing, yarn bombing or making pickles; and connecting with family and friends. 

What has been your most formative experience?

As a fledgling and hungry lawyer, I drove out to Dubbo to embark on a big adventure and a serious endeavour of providing criminal defence representation to some very vulnerable people. It definitely made me the lawyer I am today. I ultimately spent six identity-forming years living and working on Wiradjuri and Barkindji country with the Aboriginal Legal Service.

I was given transformative opportunities that took me from an outdoor campfire-side “bush circuit office” where briefs of evidence were unpacked and case theories developed at the same time as the yabby pot was filling up in the Darling Baaka … Then into Wilcannia Local Court, up to the Supreme Court and all the way to the High Court of Australia … Then from giving evidence in a Parliamentary Inquiry (that resulted in the only example I can think of where Parliament agreed to reduce a maximum penalty for a criminal offence, acknowledging the devastatingly harmful effects of imprisonment and punitive responses to people driving while disqualified) … And onto TV screens and radio waves in the national news and debate about criminal justice issues.

Many of the people I encountered in those days I am lucky to have as my most precious friends to this day. I learnt so much from my fellow lawyer colleagues at the ALS out west and across the state, the broader family of ALS-alumni, my opponents, our field officers and other Aboriginal colleagues, the bench, and really importantly I learnt so much from our clients and their families.

Three big lessons I have taken away from my clients, the people for and with whom I had the privilege of working:

• • Do not give up. Be resilient and fight really hard.
  • Suspend your scepticism and listen really carefully. Take time to hear people’s stories.
  • Hone your instinct for injustice and be very vocal about injustices when you detect them.

Why did you want to become a lawyer?

To do good for all manner of people. I was interested in people’s stories, words, the art and science of persuasion, and the power structures of the State.

Criminal law was an early dominant interest. I was interested in the criminalisation of marginalised groups, including along racially-defined lines. And I wanted to be an advocate, to stand up and use the tools of the law to protect and vindicate people’s rights, particularly of the “disfavoured” or “unpopular people”, to borrow from something Chief Justice Spigelman said at my admission ceremony.

What has been the trajectory of your career path?

Do what I love and try my hardest.

At university, I transcribed court hearings and volunteered at Redfern Legal Centre, and I had a brief summer sojourn in a private law firm. I was then Tipstaff to his Honour Justice Graham Barr in the NSW Supreme Court Common Law Division until he retired in March 2009. I moved to Dubbo for my first job as a solicitor about a week later.

I moved up the ranks at the ALS, running the Broken Hill office, then the Dubbo office. I was Trial Advocate for the western region and then Principal Legal Officer out west. Throughout my years at the ALS I appeared for people charged with criminal offences in various courts and also in the Coroner’s Court for families of Aboriginal people who had died in custody.

I also contributed to strategic litigation in the higher courts and to law reform campaigns seeking to address systemic issues.

I came to the bar in 2015 and have focused my practice on criminal law and other public law – particularly in relation to police and government accountability and the right to protest.

In 2019, along with (then law student) Jim Minns, and fellow barristers Emmanuel Kerkyasharian and Stephen Lawrence (now MLC), I started the Wigs podcast.

We set a goal of making six long-form discussion episodes, deep diving into contemporary justice issues and seeing where it took us. We are now in Season 9 with over 80 episodes under our belts.

I have just finished a 10-year term as a member of the NSW Sentencing Council, advising the Attorney-General on sentencing issues. In that role, I recently authored a dissenting opinion, opposing the abolition of good character as a mitigating factor in sentencing.

You’ve had success in overturning State anti-protest laws – are you surprised that the implied freedom of political speech had such awesome powers?

No, I’m not, it has a lot more in it, actually.

I have joked that I like to serve at least one s.78B notice on the Attorneys-General each year to notify them of a constitutional matter to be determined. This year, I kicked that goal before the first week of January was over in the Jarrett case.

The implied freedom is a powerful tool to protect the right to protest, that “right that secures all other rights”. It has the power to protect various ways in which people perform our representative and responsible government, so as to ensure informed political choices are made at the ballot box and beyond. I think it should come out of the lawyer’s toolbox more often.

What would you like to see “permissibly burdened”?

All manner of oppressive laws starting with offensive language statutes. I would also like to see Chapter III of the Constitution put to work on procedural laws that substantially impair a court’s institutional integrity, such as mandatory sentencing provisions and laws that fundamentally alter the accusatorial judicial process and prevent a jury from a proper ascertainment of the facts in a criminal trial. Premier Minns said the relevant bits of the public assembly legislation, overturned by the Court of Appeal, are “rational and necessary”. In what ways do you think it could be made “rational”?

As a lawyer, I do not deign to indulge in politics, so I will not respond directly; suffice to say that a law can only be as rational as its underlying policy objective, and the post-Bondi anti-protest laws rested on an authoritarian and dystopian policy objective.

What has been your most favourite case? … And the least favourite?

I have lots of favourites. Two include:

Firstly, William Bugmy’s case. Anyone can try to go to the High Court, though few succeed. William’s case showed that the most disadvantaged Australians could have an audience in the highest court in the land and have a difficult point heard.

And the case lives on. It is a case that clients understand really well. It is a case, the importance of which they so understand, that it has been given the status of an Act in common jail parlance. Many times I have visited a client in the cells to discuss their case and they will start telling me about their life experience, their family, their community and quickly follow it up with “I want the Bugmy Act in my case, will the judge use the Bugmy Act?” Clients understand the importance of having their story told, heard, and taken meaningfully into account by a sentencing court, and they understand that their story should not be diminished or disregarded because of their criminal record or the passage of time.

Secondly, my first criminal trial.* It was in Dubbo District Court before his Honour Judge Lerve. I was the Trial Advocate for Western NSW at the Aboriginal Legal Service at the time. It is a favourite for a few reasons.

First, and most importantly, because years later I received a text message from my client out of the blue:

“I’m not sure if you remember representing me in Dubbo but you helped me big time. Since then, I’m 6 years clean and sober and am now the operations manager of a residential rehab. I want to thank you for your help when you represented me at court. You helped change my life.”

I remember my client well, and I will always carry with me their story and the power of another chance.

Secondly, because I won the trial in the best way – before it had even really started, through a pre-trial application to exclude unlawfully obtained evidence. (This is often the most important part of the trial because what is properly admissible evidence is determined.)

Thirdly, the ruling in the trial helped develop the law in a critical way regarding fairness to the accused. In this case, as I do in all of my trials, I had prepared a detailed chronology and analysis of the police investigation. I had also used a subpoena to the Commissioner of Police to uncover the circumstances in which the police had taken my client’s DNA, including the historic DNA profile that led to them being on the database and becoming a suspect in the case by way of a “cold hit”.

These deep dive processes paid off. They revealed a number of examples of the police breaching the law in their dealings with my client, including a video in which my client clearly said in answer to the question from the police as to whether they consented to providing their DNA: “No, not really man, no”, but where the Police Forensic Procedure Consent Form recorded that my client did consent to the procedure.

The judgment excluding the DNA evidence – which inevitably resulted in the proceedings being terminated against my client – acknowledged a number of breaches of the Crimes (Forensic Procedures) Act 2000. Judge Lerve found that these included “particularly serious” breaches being, a failure to obtain informed consent, a failure to record the giving of information, proceeding to take the DNA sample in the face of an accused saying they did not really consent, and threatening the taking of hairs from their head in the face of them expressing a lack of consent.

His Honour emphasised comments made in an earlier ALS case in relation to contraventions of the forensic procedure legislation breaching basic rights conferred on citizens in general and vulnerable persons in particular.

Building the legal strategy and approach to the evidence in this case, and then seeing that work recognised in a judgment like this, it filled my cup.

As for least favourite case – any one of many before a certain former Dubbo Magistrate, who imprisoned and bullied his way to retirement.

* Story shared with the permission of my former client.

What is in your refrigerator?

A lot of homemade pickles, preserved lemons and chutneys – I don’t give them all away. A weekly instalment of appammah’s rice, curry and parippu (dahl) for which we are so grateful.

What media do you consume?

Mostly podcasts these days when I can squeeze them in between work and home life juggle.

If you were a foodstuff, what would you be?

I aspire to be the carrot triangoli at Kindred in Chippendale. It is next level. But let me say, swamp taro – a fine staple. 

When you shut your eyes and think of the word “law”, what comes to mind?

Peter Hamill’s catchwords.