12. 2020 DECEMBER LSJ_02

Finding the silver linings What positives can the the profession take from the pandemic disaster? Building culture fromafar How can firms build and maintain strong cultures in the era of remote working? Upholding integrity Does Australia really need a federal anti-corruption commission? The costs of 2020 A wrap-up of the most important costs updates throughout the year

ASSOCIATIONMAGAZINE OF THE YEAR BUSINESS COVER OF THE YEAR

ISSUE 73 DECEMBER 2020

A class act Does the legal profession needmore socio-economic diversity?

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Contents

26

34

50

Features

24 Hot topic

34 It starts at the top

50 Scaling newheights Pro bono lawyer Sara Lane’s adventurous gap year took an unexpected turn when COVID-19 struck South America 54 Fitness

Judicial stress was once an unspeakable topic, but events in 2020 have sparked a conversation

Great workplace culture is popular in theory but Sam McKeith asks leaders how they make it reality , 38 Covid creativity Three lawyers tell Floyd Alexander- Hunt how the pandemic sparked innovative changes to their work

26 Lunchwith ...

The 2020 President’s Medal recipient Peter Rosier shares laughs and lessons in law with Amy Dale

‘Tis the season to raise a glass (we’ve earned it) but how much is too much Christmas cheer? Kate Allman writes

28 Cover story

46 Mindset

56 Travel As our passports gather dust this holiday season, now’s your chance to explore the world’s best city: Sydney

Justice for all but a profession for the wealthy? Kate Allman exposes a hidden barrier to diversity in law

With 2020 heading for the rearvision mirror, Linda Gough reflects on lessons learned in a difficult year

ISSUE 73 I DECEMBER 2020 I LSJ 3

60 80

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News

66 Advocacy

82 Property

The latest developments in advocacy and law reform

It’s official – paper CTs are set to go, but is your practice prepared?

69 Opinion

84 Risk

A blistering analysis of the new Commonwealth Integrity Commission Bill

Precautions to consider when acting for ‘foreign purchasers’ in property transactions

23 Expert witless 23 The LSJ quiz 44 Career matters 46 Mindset 49 Career coach 52 Health 60 Youwish 62 Books and lifestyle 64 The case that changedme

72 Costs

86 Property & Elder law

An expert guide to the key costs decisions of 2020

Salutary lessons from granny flat arrangements gone wrong

74 Employment

88 Compliance risks

An essential update on JobKeeper 2.0, modern awards, and the future of IR

The Law Society’s Regulatory Compliance team answers your FAQs about legal practice

77 FLIP

90 Case notes

The year the legal profession went home – an examination of the great WFH experiment 80 Climate &Corporate law The climate change settlement

Concise analysis of the latest High Court, Federal Court, Family Court, criminal, and elder law and succession judgments

raising the bar for Australian corporate risk management

85 Library additions 106 Avid for scandal

4 LSJ I ISSUE 73 I DECEMBER 2020

Legal Aid NSW – improving our engagement

We value you. So we’re improving the ways we work with you. Legal Aid NSW is taking its next step towards simplifying our panels process. If you are currently a panel member, your law practice will be invited to apply to our new panel structure on behalf of the lawyers at your firm, before February 1 2021. Applications for new practices, those without any current panel members, will open after February 1.

Because you wanted greater flexibility...

Because you wanted less complexity…

Law practices – not individuals – will now hold panel memberships

One single application form for almost all panels

Because you wanted better training…

Because you wanted better support…

We’ve launched our new Lawyer Education Series

Enhanced online support and resources

www.legalaid.nsw.gov.au/ lawyer-education-series

Want to know more? Email professionalpractices@legalaid.nsw.gov.au

Better processes. Better support.

A word from the editor

Here we are again, at the end of another busy year. I suspect few of us will easily forget 2020. While I could reflect on many events that have shaped our lives this year, I actually just want to formally thank the wonderful LSJ team. I am so immensely proud of the work we do and of the magazine and website we produce.

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor

Creating a publication like this requires so many moving parts and exceptional teamwork. It also demands creativity, diligence, attention to detail, immense amounts of research, diplomacy, critical thinking and careful strategy. Oftentimes it is difficult and draining, but mostly it’s very rewarding. So, thank you, team! It’s been a big year and I am immensely grateful for your contributions. A big thank you also to our vast network of non-staff contributors, without whom LSJ would not exist. Your valuable expertise is always appreciated and makes our content offering so much richer and more diverse. Thank you also to our readers, many of whom actively engage with us throughout the year via our always entertaining Mailbag section. Until 2021, look after yourselves and enjoy a hard-earned rest.

Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Acting Advertising Sales Account Manager Eden Caceda Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290

Claire Chaffey

LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney

Contributors

© 2020 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Kate Allman Cover story p28 Kate Allman has a double degree in

Floyd Alexander-Hunt Feature p38 Floyd Alexander-Hunt has a degree in Arts/ Law from the University of Sydney, and performs standup comedy shows by night. In this issue, she interviews three

Nicholas Cowdery QC Opinion p69 Nicholas Cowdery is the former Director of Public Prosecutions for NSW and a member of the Centre for Public Integrity. Here, he subjects the Government’s long awaited federal anti- corruption Bill to the full prosecutorial treatment.

Jack de Flamingh Employment p74 Jack is a partner at Corrs Chambers Westgarth and regular LSJ contributor. This month, he and John Casey reflect on a year of rapid change in employment law and examine the prospects of long-term industrial relations reform in 2021.

27,100 * *AUDITED MARCH 2019 DISTRIBUTION

journalism and law and is LSJ ’s Online Editor. This month, she exposes an uncomfortable reality about the lack of socio- economic diversity in the legal profession,

Findingthesilver linings Whatpositivescan the theprofession take from thepandemicdisaster? Buildingculturefromafar Howcanfirmsbuildandmaintain strong cultures in theeraof remoteworking? Upholding integrity DoesAustralia reallyneeda federal anti-corruptioncommission? Thecostsof2020 Awrap-upof themost important costsupdates throughout the year

ASSOCIATIONMAGAZINE OFTHEYEAR BUSINESSCOVER OFTHEYEAR

ISSUE73 DECEMBER2020

ISSUE73 DECEMBER2020

legal professionals who successfully navigated the challenges of 2020.

asking how we can dismantle class bias.

A class act Doesthe legalprofessionneedmore socio-economicdiversity?

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

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LSJ_Cover_DecemberFinal.indd 1

25/11/20 4:34 pm

Cover design: Alys Martin

NEXT ISSUE: FEBRUARY 2021

6 LSJ I ISSUE 73 I DECEMBER 2020

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ISSUE 73 I DECEMBER 2020 I LSJ 7

President’s message

A s this is the last LSJ issue for 2020 and my final message as President, it is timely that I outline the Society’s key achievements during the past 12 months. Given that we began 2020 in the wake of several crises, including drought, bushfires, and floods, and we will end it in the midst of a devastating global pandemic, this has not been the easiest year in which to practise law. The pandemic has presented many challenges for our profession – loss of income, remote working, social isolation, disruption to the operation of the courts, and increased reliance on online technology to conduct the practice of law. However, when I look back at 2020, I am proud of the way our profession responded in these unprecedent- ed times, the support we have shown for each other, and the united strength of our profession. I am also proud of the manner in which the Society responded to the pandemic restrictions; from moving the bulk of our Continuing Professional Development

(CPD) program and all events online, to creating a dedicated COVID-19 por- tal and e-newsletter for the legal profession, and reducing the membership fees to $10 for the 2020/21 financial year. While our community transmissions remain low and our domestic borders are opening again, the social and economic impact of COVID-19 will be felt for many years. Yet I remain confident that together, as a profession and sup- ported by this association, we will ultimately emerge from this crisis stronger, and better able to serve the court and our fellow citizens. While much has changed in 2020, our commitment to shaping and ini- tiating debate about law reform has not. This year, the Law Society worked extensively with the NSW Government in relation to the witnessing of im- portant legal documents during the COVID-19 lockdown. As a result, a reg- ulation-making power was added to the COVID-19 Legislation Amendment (Emergency Measures) Act of 2020, which allowed legal documents, such as affidavits and ‘stat-decs’, to be witnessed electronically during the pandemic. The Law Society’s key priorities in the advocacy space included calling for additional early intervention services and justice reinvestment strategies to re- duce the disproportionate rate of Indigenous people in our criminal justice sys- tem, and our ongoing campaign for a Drug Court in regional NSW along with an expansion of drug and alcohol rehabilitation services. We also made extensive submissions through the Law Council of Australia in relation to the revised Closing the Gap Agreement, sexual harassment in the legal profession, raising the age of criminal responsibility, and national uniform defamation laws. One of my key goals as President was to launch a range of mental health ini- tiatives that would help our profession cope with the challenges of legal practice in 2020. This included the employment of a new Wellbeing Coordinator at the Law Society, ramping up our CPD offering in this space, and the launch of

8 LSJ I ISSUE 73 I DECEMBER 2020

PRESIDENT’S MESSAGE

“While our community transmissions remain low and our domestic borders are opening again, the social and economic impact of COVID-19 will be felt for many years. Yet I remain confident that together, as a profession and supported by this association, we will ultimately emerge from this crisis stronger, and

a new Solicitor Outreach Service (SOS). In 2020, I set out to promote aware- ness of and raise funds for Foodbank ACT/NSW, Australia’s largest food relief organisation and a charity which plays a significant role in times of emergency and natural disasters such as fires, floods and drought. Thank you to all in the pro- fession who have supported Foodbank’s work during an intensely demanding year, either by donating funds or order- ing food hampers through our “Dining Room Delivers” service. I would like to acknowledge and thank my team of 21 Law Society Coun- cillors who generously committed count- less hours of their time and expertise this year, along with those members of our profession who have volunteered to serve on our various committees throughout 2020, especially as we dealt with major regulatory and procedural changes as a

result of the pandemic. I am indebted to the Society’s long-serving CEO, Michael Tidball, who now heads up the Law Council of Australia, for his guidance and support during one of the most challenging pe- riods in the history of the Society. My thanks to our new CEO, Sonja Stewart, the Executive Unit, Senior Leadership Team and all the staff at 170 Phillip Street for their extraordinary support and commitment during an intensely de- manding period. In closing, I would like to wish all members a happy and safe festive season, mindful that COVID-19 restrictions may prevent many people from celebrat- ing Christmas with their loved ones this year.

better able to serve the court and our fellow citizens.”

Richard Harvey , President, Law Society of NSW

THOUGHT LEADERSHIP SERIES RELIGION AND REFORM Tuesday 8 December 2020 Join our expert panellists online as they explore the potential legal impacts of the proposed reforms and their effect on business, individuals and the wider community. REGISTER NOW lawsociety.com.au/thoughtleadership

lawsociety.com.au

ISSUE 73 I DECEMBER 2020 I LSJ 9

Mailbag LETTERS TO THE EDITOR

VALE The Honourable Stuart Grant Fowler AM Stuart was a prominent and well-respected member of the legal profession during the 47 years he served it, in many differing roles. Stuart graduated from Sydney University with a Bachelor of Laws in 1966. He was admitted as a solicitor of the Supreme Court of NSW in the same year, and a solicitor of the High Court of Australia in 1986. He practised as a solicitor for 40 years before he was appointed to the Family Court of Australia. As a solicitor, he hadmany achieve- ments. He was a member of the Law Society of NSW Family Law Committee for 17 years. In 1975, he became a member of the Law Council of Australia’s Family Law Committee and served on that committee until 1984 when the Law Council’s Family Law Sec- tion was formed. He became Chair of that section in 1986 and continued until 1991. Stuart was part of the group of practitioners who founded the Australian Institute of Family Law Arbitra- tors and Mediators. That initiative was ahead of its time. Perhaps his greatest achievement in legal politics was his election as President of the Law Council of Australia. As President, he had entree to the highest level of government and the judiciary. He took great advantage of that position to promote the aims and aspirations of the Law Council, both for its lawyer members and the Australian public. When at the helm of the Family Law Section, Stuart initiated the Biennial Family LawConference. That initiative had more in store for him than mere education. The first conference was held in Sydney and was a great success. The success was significantly attributed to its organiser, Gail Hawke. Not slow to recognise talent and beauty when pres- ent, Stuart quickly realised his life needed Gail and they were married on 26 October 1991. Not content with his achievements thus far, he became a publish- er. He, together with Malcolm Broun QC, published the most

became effective. While asking for a date, the answer given is a year. That was the year the Commonwealth came into existence. I was left pondering what the term “effective” means. Arguably, the date upon which 63-64 Vic Ch 12 gained Assent, 9 July 1900. Question 7 asks whether Papua and New Guinea were previously external territories of Australia. The answer given is ‘Yes’, which is patently wrong. The territory of New Guinea was initially a Mandated Territory under the League of Nations, and after WWII as a trust territory of the UN. From 1949, they were administered together by Australia as one entity while remaining separate territories. I have the honour to be, Madam, your obedient servant, Brian Hatch Fret a Porter As indicated in the August edition of this journal (p88) the prosecution of Bernard Col- laery, and the circumstances in which that is taking place, is a disgrace to our legal system. I wrote to the Attorney-General requesting that he reconsider the Commonwealth’s role in all of this, but after a month I still have not received a response. Apparently, he has more important affairs to attend to. Warwick van Ede Assessing costs Regarding costs assessors and the way they appear to unilaterally reduce the costs on any solicitors bill when an application is made for costs … by the client or the lawyer. I have always wondered why costs assessors only reduce solicitors’ costs [and] never increase them. I understand it’s within the power of the costs assessor under the leg- islation to increase the costs payable by a client. However, this is never done. They always appear to reduce the costs by no less than 10 per cent. Per- haps your readers may have an answer to this question. Brendan Manning

40yearsofSilverwater LSJ goesbehind thewallsof Sydney’smostnotoriousprison UndertheCOVIDveil How theprocessof lawmakinghas changed since theonsetofcoronavirus JudgingtheUSA Whatwecan learn fromAmerica’s judicialappointment system

Much ado about Angus If only the OC had applied some common sense and exercised discretion, the whole sorry saga involving Angus could have been avoided (A Benson, ‘Harsh, unconscionable, oppressive: Angus has the last bark on strata by-law’, Nov LSJ ). Angus is a 14-year-old schnauzer (appar- ently, the equivalent of about 72 in human years). At that age, he would hardly be likely to create any nuisance or annoyance. An exception permitting his pres- ence could and should have been made at the very outset. The challenge by the OC to the Court of Appeal, in the circum- stances, speaks volumes. The Court’s decision in dismissing the appeal and awarding costs is entirely welcomed. Edward Loong Ditch the unfashionable fashion I am not in the legal profession, relatives are, and often browse through the LSJ left on a kitch- en table. I enjoy some of the erudite yet readable articles. I am flummoxed, though, by the page devoted to a lawyer posing in a designer outfit, explaining their choice of expensive attire in an interview that has me thinking I am reading Marie Claire . This trivialises and diminishes your profession and suggests a high-flying corporate culture is at its epicentre. Surely hard-working, hard-thinking members of your profession, for instance those working in Legal Aid, in outback commu- nities, in regional and suburban offices and even in city towers, deserve a better representa- tion than that of a marketable clotheshorse. Keep your Jour- nal’s integrity by publishing thoughtful writing and get rid of the anachronistic fluff piece. Jane Mack Questioning the quiz I refer to the quiz on p23 of the Journal of November 2020. Question 1 asks for the date upon which the Constitution

ISSUE72 NOVEMBER2020

Truthvsreputation Does ICAC strike the right balance in itsquest foranwers?

ISSUE72 NOVEMBER2020

Takinga newdirection Howanalternativeapproach tocriminal justicecan breakthecycleofrecidivism

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LSJ_Cover_November_Final_Cover.indd 1

21.10.20 09:48

WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.

E: letters@lawsociety.com.au

Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

CONGRATULATIONS! Edward Loong has won lunch for four at the Law Society Dining Room. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

10 LSJ I ISSUE 73 I DECEMBER 2020

LETTERS TO THE EDITOR

widely used practice service for Family Law in Australia. That service is still used widely today and is published by CCH. In 1989, and continuing until 1994, Stuart was appointed and served as the inaugural chairman of the Family Law and Family Rights Section of the Law Association for Asia and the Pacific. In 1993, Stuart embarked on a project which became a real passion for him. Through his o ces held in Law Asia and the Law Council of Australia he inaugurated the first World Congress on Family Law and Children’s Rights. The first conference was held in Sydney where over 850 delegates from 54 countries attended. Out of that project emerged real and significant reform for children who were the subject of abuse and exploitation across the globe. The Law Asia Children’s Trust was also established through the e orts of the organ- isers of the World Congress. Graeme Richardson SC, speak- ing on behalf of the Australian

and NSW Bar Associations at Stuart’s welcome to the court ceremony, accurately described the work which Stuart put into the World Congress project and its subsequent conferences as a “monumental achievement and the congress remains the pre-eminent world forum for the examination of family law”. Stuart has been described as a “consummate legal politician”. He was comfortable establish- ing a working relationship with Attorney Generals and politi- cians of any allegiance. In 2005, Stuart was made a Member of the Order of Australia. On 16 November 2007, he took up his commission as a Justice of the Family Court of Australia. At the end of 2013, Stuart turned 70 and his commission as a Jus- tice expired, as the Australian Constitution requires. It was a great loss to litigants and legal practitioners that his service ceased at a time when he was such a successful and compas- sionate member of the court. In

his retirement, Stuart continued to assist the legal profession by making himself available to mediate family law matters. Outside of the law he had many and varied interests. He enjoyed people, boating, travelling, art, music, raising livestock, working on his property at Hannam Vale, and a driving well-made motor vehicle with historical relevance. He excelled at everything he set his hand and mind to. He leaves behind his wife of many years, Gail, and a blended family all of whom will remember his presence on this earth for the remainder of their days. Reciting the achieve- ments which have marked the life of Stuart Grant Fowler AM leaves many breathless and yet inspired. However, such was the stature and quality of the man, he never wore his achievements on his sleeve or allowed them to enter his conversations. He was a high achiever with an even higher level of humility. A person who laid at the feet

of many others, achievements which were encouraged and worked for so significantly by himself. He was a man of com- passion, an innovator in the art of negotiation and mediation. He was respected and admired by all. He was universally liked by those who knew little or nothing of his background and work. He exuded warmth, interest and support in his interaction with people he met in all walks of life. His departure will leave a hole in the hearts of many. In his address to the Court, at his welcome ceremony, he spoke of his great lawyer friend, the late Colin Davies OAM. The words he used to describe his friend were equally apposite to Stuart. He said: “He was during his life a great leader and diplo- mat. He was a true gentle man. He passed through life with a capacity of leaving more than just footprints in the sands of time. He gave freely of his skills

and his experience.” Mark le Poer Trench

Missed something? Our curated collection of wellbeing webcasts are available on-demand. REGISTER TODAY lawsociety.com.au/stay-well STAYING WELL IN THE LAW COPING WITH CHANGE AND UNCERTAINTY Jaydene Tucker LIFE AS A HIGH-PERFORMANCE HAPPY LAWYER Clarissa Rayward MANAGING STRESS FOR SUSTAINED PERFORMANCE OVER TIME Dr Jemma King LIFE HACKS TO MANAGE AND PREVENT BURNOUT Dr Jemma King

ISSUE 73 I DECEMBER 2020 I LSJ 11

Mailbag LETTERS TO THE EDITOR

Our readers demand excellence. You should, too. Advertise with us.

Get real about climate Given the letters in recent months casting doubt on the science of climate change, it is important to realise that climate change is not just a prediction about the future but also a reality of today. This is how the intensity of greenhouse gases in our atmosphere has increased in recent years – and please observe the upward trend. The red CO2-e line measures the carbon dioxide equivalent of all green- house gases, which apart from carbon dioxide are mainly methane and nitrous oxide.

Points 1 to 4 in blue have sustained human life ever since modern humans emerged around 200,000 years ago. Item 5 in red emerged only since we started the intensive use of fossil fuels – coal, oil and natural gas – over the last century or so. According to the Australian Academy of Science, we can already see the impacts of climate change by way of increases in the number, duration and severity of heatwaves; changes in the growth and distribution of plants, animals and insects; poleward shifts in the distribution of marine species, and increases in coral bleaching on the Great Barrier Reef. Most of this has happened during the writer’s 77 years on the planet. It is pretty obvious what will happen to future gen- erations if the trends continue for another The world doesn’t know yet My law firm is situated in the Hills District of Sydney, upon the land of the Darug people, the traditional custodians of the land on which I work and live. My first encounter with the area was in the mid-80s. The school I attended had pur- chased a huge block of land in Rouse Hill and relocated to the far away suburb. St Gregory’s Armenian School stood tall and proud on Mungerie Road, amongst trees, farm animals, and hectares of vacant land. I frequently drive past the school, glancing at the structure, remembering and often yearning for my childhood. It was within the walls of that school that I learnt how to speak and write English. Within the walls of that school that I learnt about God and religion. It was there that I learnt about Captain James Cook, Botany Bay, the plight of Aboriginal and Torres Strait Islander peoples. It was at that school that I learnt about the Holocaust, that I cried as we watched Schindler’s List. It was there that I learnt about the Arme- nian Genocide. It was within the walls of that school that I resolved to become a lawyer. I was 10 years old and had just sat through a powerful lesson on genocide. I vividly remember the emotions I felt – sadness and anger drenched with a sense of con- fusion. Emotions that triggered my reticent fourth grader self to stand up and ask a question. “Miss,” I said, my voice shaking, “how did the world just stand there and let these things happen?” “The world didn’t know,” she replied. “Times were di erent then, news travelled slowly, they didn’t have the technology we have now.” Her response was comforting 77 years. Jim Main

Policingthepandemic Which stateshavebest responded toCOVID-19–andatwhatcost?

Roughseasahead HowAustralia’s lawfirmsare coping in the faceof recession Securingyourcyber How toprotect yourselvesand yourclients ina remoteworld Unconsciouslybiased What lawfirmscando toaddress the underlying inequities inourprofession

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ISSUE70 SEPTEMBER2020

Atruereignofterror Those touchedby theFamily Courtbomberhorror speakout Decisionsmadeeasy Asartificial intelligence improves is it time to start trusting thedata? Keepingpacewithtech Has the timecome foranew tortof cyberharm forprivacybreaches? Borderingonconflict The true significanceofClive Palmer’sconstitutionalchallenge

Bya thread Whyour lawsneedtobetterrespondtothe threatofemotionalandpsychologicalcontrol t f ISSUE71 OCTOBER2020 ISSUE71 OCTOBER2020

27/8/20 12:17pm

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The longhaul

With the impactsofCOVID-19ongoing, wecheck inonthementalhealthofthe legalprofession

PLUS: UPDATESON LEASING,MIGRATION,EMPLOYMENT,COMPLIANCE&MORE

40yearsofSilverwater LSJ goesbehind thewallsof Sydney’smostnotoriousprison UndertheCOVIDveil How theprocessof lawmakinghas changed since theonsetofcoronavirus JudgingtheUSA Whatwecan learn fromAmerica’s judicialappointment system

LSJ_Cover_October.indd 1

ISSUE72 NOVEMBER2020

24/9/20 9:34am

Truthvsreputation Does ICAC strike the right balance in itsquest foranwers?

ISSUE72 NOVEMBER2020

And this is how global temperatures have trended upwards over a similar period:

Takinga newdirection Howanalternativeapproach tocriminal justicecan breakthecycleofrecidivism

PLUS: UPDATESONCOSTS,TAX,MEDIATION, FAMILY LAW,EMPLOYMENT&MORE

LSJ_Cover_November_Final_Cover.indd 1

21.10.20 09:48

And this illustrates how increasing emissions warm the planet with the so-called “greenhouse e ect”, which has been known to science since the 1800s:

Email: advertising@lawsociety.com.au Visit: www.lawsociety.com.au/advertise

12 LSJ I ISSUE 73 I DECEMBER 2020

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and, as I sat there, solaced by the words of my teacher, convinced that people were largely good, persuaded that, if provided with information and details of atrocities, they would seek to condemn the perpetrators, I became determined to become a lawyer, to use my voice to convey information, to use my voice to stand up for truth and justice. In the early hours of 27 September 2020, Azerbaijani forces launched large-scale air and artillery strikes on the indigenous Armenians of the Republic of Artsakh. The attack, coor- dinated with the connivance of the dictatorial regime of Turkey’s Erdogan, saw Artsakh and Armenia – landlocked, blockaded genocide survivor states – lose thousands of young soldiers to the senseless military aggression. Despite a number of humanitarian ceasefires, Azerbaijan continued its deliberate and nonstop shelling of civil- ian towns and infrastructure. Deadly cluster munitions, banned under inter- national humanitarian law, were utilised by Azerbaijani forces. The forests of Artsakh were deliberately set alight in a move to harm the civilian population sheltered there. Maternity hospitals and schools were targeted. Thousands left displaced. As Azerbaijan continued its military offensive against Artsakh and Armenia, Australia pulled a mask over its eyes, as though unwilling, perhaps afraid, to condemn the human rights abuses, the violations of international laws, the senseless killing. Like all conflicts that straddle bor- ders, the issue of Nagorno-Karabakh, or Artsakh, is a complicated one, often looked at through the lens of its status as an internationally unrecognised state. Artsakh is a mountainous, land- locked region in the South Caucasus. Inhabited by Armenians for thousands of years, its hills are decorated with thousands of Christian churches, some dating back to the 10 th century. Following sovietisation in 1921, Joseph Stalin arbitrarily annexed the highlands of Artsakh to Soviet Azerbaijan, ren- dering it an autonomous region – an oblast – of the Soviet state. The new region, which at the time had a 94 per cent indigenous Armenian population, received the name the Nagorno-Kara- bakh Autonomous Oblast. On 10 December 1991, the people of Artsakh declared their independence by an overwhelming vote – 99 per cent

voted for independence. In response, Azerbaijan launched a violent war against the Nagorno Karabakh Repub- lic. A war that lasted until 1994 and took with it 30,000 lives. Since declaring independence in 1991, Nagorno-Karabakh has suc- cessfully conducted more than 10 parliamentary and presidential elec- tions. Geoffrey Robertson QC, one of few Australians to have ventured to Artsakh, has marvelled at its true democratic status. Ilham Aliyev claims Nagorno-Karabakh is part of Azer- baijan. This is, however, completely erroneous. Stalin’s 1921 order did not grant the territory to be within Azerbai- jan. Rather, by treating it as an oblast, it transferred administrative control of Karabakh to Soviet Azerbaijan. In addition, Artsakh has not had the status of an oblast since voting for independence. As stated by Geoffrey Robertson, “International law allows what is termed the right of remedial secession, which has been accorded to East Timor, Kosovo and others and which should apply to Artsakh.” Yet despite the legal invalidity of Azerbaijan’s reasons for aggression, despite the human rights violations, the committing of war crimes, the behead- ing of prisoners of war, the bombing of churches and hospitals, despite Azerbaijan using lies and deception to create a media narrative, not one single country did anything to protect the Armenian people from another genocide. A few days ago, my 8-year- old son asked me a question. “Mum,” he said, his voice shaking, “how is the world just standing there and letting these things happen?” I could sense his sadness, his anger and confusion. I knew his emotions very well, they were the same ones I felt all those years ago. I knew, however, that I couldn’t allevi- ate his concerns with the reassuring response my Year 4 teacher provided me. Her words, once a beacon of hope, were now laden with canards and fal- lacies. Battling with the horrifying concept that atrocities are able to continue being committed because humans are indifferent to the suffering of others, I decided to tell my son what I was told. Perhaps, I thought, my words would ignite within him the same fire that burnt within me. “The world doesn’t know yet,” I said, a blatant lie. “We need to let them know.” Alexia Ereboni Yazdani

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Briefs NEWS

RURAL ISSUES Cybercrime andmental health greatest threats to small firms

BY STEPH GARDINER

Experts say cyber criminals are attacking small law firms and taking advantage of their vulnerabilities, as lawyers increasingly shift their practices online during the pandemic.

$1 million. Heath said rather than be fearful of working online, lawyers should be cau- tious with all online transactions. He advised firms to enact extra verification measures on their email accounts, like software that sends a security access code to a mobile phone. One tactic to watch out for is a fraud- ulent email linking to a website that appears to hold legal documents. The third-party website may ask for a name and password, giving hackers access to computer systems or emails. Lawyers should also be warning their clients to look out for these kinds of email scams, Heath said. “Email is vulnerable, so when we’re looking at transferring tens of thou- sands, hundreds of thousands, or even millions of dollars, the risk management guard should be [at] the top. “It really is a ... behaviour error. It’s often a reaction to haste or speed.” The increase in hacking adds to a year “Email is vulnerable, so when we’re looking at transferring tens of thousands, hundreds of thousands, or even millions of dollars, the risk management guard should be [at] the top.” Malcolm Heath Practice Risk Manager, Lawcover

Lawcover’s Practice Risk Manager Mal- colm Heath said the insurer had record- ed a spike in cyber-attack claims this year, the majority relating to compro- mised business email accounts. Heath addressed an audience of 120 solicitors who tuned in to the online Ru- ral Issues Day conference hosted by the Law Society of NSW on 23 October, in a panel discussion focusing on the hard- ship and impact of recent crises on rural legal practice. Heath and his co-panellists including consultant Rachel Setti, University of Newcastle professor and researcher Ha- zel Dalton, and Legal Services Commis- sioner for NSW John McKenzie, noted the increase in hacking exacerbated the years of intense stress law firms in re- gional areas had experienced, amid rap- idly changing local economies, drought, bushfire, floods, and the pandemic. Heath said fraudsters had stolen large settlements and payments by using busi- ness accounts to email clients their own bank details. “Perhaps the cyber criminals are in full-scale operation as more and more businesses are going to remote environ- ments, and that may increase exposure,” Heath said. In the first four months of this finan- cial year alone, Lawcover received 12 cy- ber-attack claims, compared to a total of 26 in 2019-20 and 21 the year before. The insurer has paid out more than $5 million in losses since the first claim of this kind in 2016. Losses, usually suf- fered by small firms or sole practitioners, have blown out from $12,000 to nearly

of immense change and difficult eco- nomic circumstances posed via drought, bushfire, floods, and the pandemic. “2020 has culminated in the most significant period of change in a short space of time, and that in itself is quite traumatic,” Heath said. He said firms could contact Lawcover for pastoral care through trained coun- sellors, as well as premium relief. Hazel Dalton, the research leader at the Centre for Rural and Remote Mental Health, said it’s been a difficult period for lawyers juggling their clients’ wellbe- ing with their own mental health. The Centre offers short, time-sensitive men- tal health training courses to help navi- gate difficult conversations. “It can be comforting, and it can help you decrease the stigma in provid- ing support for others and seeking help yourself,” Dalton said. She said prioritising sleep, eating well, exercising, connecting with others and planning things to look forward to were beneficial. It’s also vital for lawyers to remind themselves of the importance of their role in their communities. “Be compassionate with yourself – you’ve got a demanding job and it real- ly makes a difference in people’s lives,” Dalton said. “Sometimes it’s hard and we can’t al- ways get it right or feel like we’re getting it right. “Taking time to look after your- self can make for better performance at work, a better human, and [being] happier with yourself. So give yourself a break.”

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NEWS

Influencer

NEWTHISMONTH Kaldor Centre releases newpodcast ‘Temporary’

by

Refugees caught in limbo in Australia share their stories in a new podcast pro- duced by UNSW’s Kaldor Centre for International Refugee Law, the UNSW Centre for Ideas and Guardian Australia. The podcast offers rare access to people with lived experience of the refugee system and what it is like to be caught between the cracks of that system. Round up a team for Just Trivia Who said lawyers aren’t competitive? Exactly nobody. It’s why the Law Society is pitting members against each other an end-of-year trivia tournament at 5.30pm on 16 December. Great prizes are up for grabs and proceeds will support the 2020 President’s Charity, Foodbank. Register at lawsociety.com. au/justtrivia Sydney Law Careers Fair 2021 – exhibitor registrations open Exhibitor registrations are open for the Sydney Law Careers Fair, to be held on Friday 26 March 2021 at the ICC, Darling Harbour. This is a great oppor- tunity for firms to meet prospective law graduates and maximise their exposure to the state’s top talent in a single day. See lawsociety.com.au/legal-communi- ties/law-students/careers-fair

Justice Jacqueline Gleeson Federal Court Judge and incoming Justice of the High Court of Australia

Humour is highly valued in my family as an antidote to snobbery, self-indulgence, self-righteousness, pedantry, bullying, in fact all unpleasantness.

ISSUE 73 I DECEMBER 2020 I LSJ 15

Briefs NEWS

What made you pursue a career in law? My interest in law stemmed from starting a PhD in policy studies, as it’s nearly impossible to separate policy and legisla- tion. After my accident [Kayess is quadriplegic], I had an in- terest in disability policy because it was what I understood and could relate to. Having a disability has kept me on a less tradi- tional academic path because of physical access and flexibility. It depends on the person with the disability and what their practice is. Essentially, we need a far more accessible workplace for people with disabilities, whether they be lawyers or not. ere needs to be procurement mechanisms within firms to ensure the equipment is flexible enough to adapt to the breadth of the human condition. It’s about flexibility and being able to meet individual requirements and recognise the diversity of the legal profession overall. Courts need to provide access and information to everybody to ensure access to justice. How has COVID-19 impacted you? It was really tough at the beginning. It wasn’t easy to access personal protective equipment, and because of my disability I require support people every day, which made isolation impos- sible. Information and communication to people with a dis- ability has not been good during the pandemic, especially at the beginning. I wrote on the critical care triage mechanisms which reinforced some of the vulnerabilities that I as a per- son with reduced respiratory ability have. I accept that if the system was under pressure, it could be a waste of resources for What needs to be done to improve the working situation for lawyers with a disability? Rosemary Kayess is a human rights lawyer, Director of Engagement at the Disability Innovation Institute UNSW, and a teacher in the UNSW Faculty of Law. In 2019, she became the Vice Chair of the United Nations Committee on the Rights of Persons with Disabilities. Kayess discusses COVID-19 and her career with FLOYD ALEXANDER-HUNT . sixminuteswith ROSEMARY KAYESS

me to receive critical care. However, it was the nature of com- munication that arbitrarily sacrificed people with disabilities for what came across as the real people. Do you have any mentors? I’ve got some colleagues that have been incredibly important to me throughout my career, particularly Robin Banks, Phillip French, Andrew Byrnes and erese Sands. ey have helped me in the areas of human rights law, anti-discrimination law and disability policy. I don’t actively work as a mentor for any- one, but I always make myself available. I enjoy working with younger colleagues and hope I can contribute to their develop- ment as human rights lawyers. What have been your biggest career highlights? Being involved in the Convention on the Rights of Persons with Disabilities was the opportunity of a lifetime. I got ap- pointed to the Australian government delegation as a desig- nated expert and it brought together my two degrees – law and social science. at was followed up with my appointment onto the Committee on the Rights of Persons with Disabili- ties. I’m generally not a big one for accolades but winning the Human Rights Medal last year was pretty special. It was the response from people when I won it that really blew me away. Aside fromwork, what do you like to do in your spare time? I’m a tragic for indie pop. Once a week my friend and I get a meal box and have either a nice craft brew or bottle of Austra- lian red. During lockdown, it was an excellent way to delineate the weekend from the week.

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NEWS

HUMANRIGHTS LawCouncil renews calls for Human Rights Act

The Law Council of Australia has reig- nited a longstanding debate over wheth- er Australia should have a federal Hu- man Rights Act Addressing the National Press Club in Canberra on 18 November, Law Council President Pauline Wright said she believed many Australians had no idea their human rights were not pro- tected by the Constitution or legislation. “Our Constitution protects very few rights, and those rights, which have been so hotly debated during the pandemic, are backed by few Constitu- tional or statutory guarantees,” Wright said.

While Queensland, Victoria and the ACT have state human rights Acts, Aus- tralia is the only Western democracy without some form of a charter of rights at the national level. It has long been a source of tension for human rights ad- vocates in NSW that our state does not have a parallel state Act, despite legal ex- perts championing the idea. Wright pointed to rapidly changing laws and unprecedented restrictions placed on people’s civil liberties during the COVID-19 pandemic as examples of government action that can impact human rights. A Human Rights Act, she said, would protect essential liberties

and rights even through such unprece- dented circumstances – while balancing the need for the government to take measures to protect its citizens and the economy. “A human rights charter will assist public acceptance of government deci- sion-making processes – including for decisions which must be made against rapidly unfolding circumstances such as seen during the pandemic,” Wright said. “A federal Human Rights Act would provide a much needed, established framework setting out the core princi- ples to resolve tensions which arise when rights come into conflict.”

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Briefs NEWS

GOODNEWS LSJ scoops ‘fourpeat’ at national awards

MEMORIAL BURSARY AWARDED Award honours son of Sutherland judge

Two law students from the University of Wollongong received bursaries in October, in memory of a former student who died tragically of epilepsy. e St George Sutherland Law Society established the Cam- eron O’Brien Memorial Bursary in 2013, in memory of Camer- on O’Brien, a commerce/law student who passed away in 2012 during his fourth year of study. Cameron was the son of His Honour Judge Chris O’Brien, a past-President and life member of the regional law society. e annual award recognises a fourth-year law student from the St George and Sutherland area attending the University of Wollongong (UOW). is year, the $3,000 bursary was awarded to Jacob Moussa for his community involvement and impressive charity work with the UOW student advisory council, Red Cross, Girls of Granada and the World’s Greatest Shave. Moussa suffers from a neuro- muscular condition but, despite this adversity, has achieved outstanding academic records. e law society also awarded a Highly Commended Bur- sary in the sum of $1,500 to Jenna Lennon for her outstand- ing community involvement and academic achievements.

Confirmed: LSJ rocks. e team is proud to an- nounce your favourite member magazine was named 2020 Member Organisation or Associ- ation Magazine of the Year at the Mumbrella Publish Awards, the annual national awards night for the publishing industry. is is the fourth year in a row and the sixth time in its seven-year history, since the magazine was relaunched to its current for- mat, that LSJ has won the coveted trophy. LSJ also earned a gong for Business Mag- azine Cover of the Year, with its powerful

IsNSWnowapolicestate? A lookathow the raftofCOVID-19 rulesare impactingcivil liberties Camaraderieandconcern With the justice system turnedon itshead, howare lawyerscopingwithchange? Cruisin’forabruisin’

Howcruise shipshavehighlighted thecomplexitiesof international law Courtingtechnology Howwellhaveourcourtsadapted to thepandemic’s forced innovation?

ISSUE66 MAY2020

Adeepdive intohowCOVID-19 isa ectingyou,theprofession, andtheruleof law SPECIALEDITION Lawin the time of corona

PLUS: UPDATESONPELLVTHEQUEEN,EMPLOYMENT,CRIMINAL LAW&MORE

23/4/20 1:43pm

COVID-themed cover,designed by Alys Martin, featur- ing Lady Justice donnning a surgical mask and gloves during the pandemic. e magazine and its creators were nominated in six cate- gories in total, including editor Claire Chaffey for Editor of the Year, journalist Kate Allman for Journalist of the Year and Young Writer of the Year, and Floyd Alexander-Hunt for Young Writer of the Year.

LSJ05_Cover_May.indd 1

Know someone with a new position? Email us the details and a photograph (at least 1MB) at journal@lawsociety.com.au

AndrewAitken Appointed as Principal Lawyer Coleman Greig Lawyers

Renee Smith Promoted to Senior Associate Holmes Donnelly & Co Solicitors

Jamal Bakalian Promoted to Senior Solicitor Streeterlaw

MatthewMallos Joined as Partner Blackstone Waterhouse Lawyers

Bridget Edghill Promoted to Special Counsel Bird & Bird

AndrewZeidan Promoted to Associate Blackstone Waterhouse Lawyers

Jarrad Parker Promoted to Special Counsel Bird & Bird

Pawel (Paul) Brozek Promoted to Associate Eakin McCa ery Cox

Martin Bernhaut Joined as Principal Bernhaut Solicitors

18 LSJ I ISSUE 73 I DECEMBER 2020

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