Samuel, chairman of the Australian Competition and Consumer watchdog, told The New Lawyer that lawyers face some steep learning curves on how to present to 12 good men and women instead of the current judge in such cases. 

Lawyers, particularly in large firms dealing with large business clients, will have to “pull out some of their old criminal procedure books from law school days and start brushing up on some of those processes”, he said. 

Allens Arthur Robinson competition partner Wendy Peters says that while competition lawyers will be under experienced in dealing with the new legislation, as Samuel said, those in large firms will be backed by their barristers and other criminal law experiences lawyers in other practices. 

She said there are practical procedural differences that competition lawyers will have to grapple with. “There is no doubt that competition lawyers do not have that experience. None of us in the competition sphere have worked with criminal juries before.”

But Peters says in firms as large as Allens, there are others with the expertise.

“Clearly in running a trial where our client has criminal charges brought against them, we would consider which counsel we would use. It may be there is a move to look more broadly rather than using those barristers with competition expertise, we would take into account those with criminal trial experience.” 

Deacons partner Michael Hammond, an occupational health and safety and workplace relations expert, argues that firms trying to build their practices now to deal with the upcoming legislation are running a little late. “You don’t get that [expertise] overnight.”

Hammond, whose experience has included work with juries because of Victoria’s requiring OH&S cases in front of juries, said “firms need to approach this work as a criminal lawyer and not as a commercial lawyer”. 

“Working in civil or commercial litigation is a very different area. They certainly need to skill up, but it’s almost a mindset on how you approach these things,” Hammond said.