LSJ April 2015

APRIL 2015







Breakfast just got a whole lot cheekier. Take a few brave young lawyers, add humorous topics, mix in breakfast and prepare yourself for one of the highlights of the law calendar!

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A t the time of writing, the media was intensely focussed on the state election to be held on 28 March. Following the election, the Society will continue to press NSW politicians from all parties for constructive and consultative law reform on the key issues contained in its election platform, including mandatory sentencing, court and Legal Aid funding, and the role of lawyers in providing legal services to the community. At the beginning of March, the Law Society published responses from the three major political parties to its 2015 State Election Policy Platform. is creates an important platform for post-election engagement with the NSW Liberal & Nationals, NSW Labor Party, and Greens NSW on major law reform issues, and sets the tone for post-election campaigning by the Society. Adequate legal aid services are critical in ensuring fairness and e ciency in our court system and are essential to provide access to justice for the most nancially disadvantaged. It is therefore a positive move that the Commonwealth Government has responded to calls from the Law Society and others to return funding to Legal Aid NSW. e Attorney-General’s Department has agreed to a cash injection of $5.2 million to supplement the expensive Commonwealth criminal cases fund to the end of this nancial year. I am pleased to report that my planned visits to all 29 Regional Law Societies have now started in earnest. us far I have visited some of the Regional and Suburban Law Societies. is has given me a valuable opportunity to hear directly from members of the profession and provide up-to-date information on the activities of the Society. e Law Society’s ought Leadership Program for 2015 is entitled ‘Australia in the World’. e rst in this year’s panel series was on 26 March, when Australian Human Rights Commissioner Gillian Triggs was joined by an expert panel for a lively and highly topical discussion around Australia’s focus on border security in light of the continued increase in international refugee numbers. e Law Society was pleased to host the Commissioner, who has come under considerable personal pressure in recent weeks following the release of the National Inquiry into Children in Immigration Detention 2014. Finally, members should be aware that Law Week 2015 activities start on 11 May. Law Week gives us the opportunity to focus on the many excellent events in local communities throughout NSW. ere is still an opportunity to apply for a grant of up to $1000 from the Society with further information available online at

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ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer

is month’s cover story written by Tony Cunneen, A Tale of Gallipoli: Solicitors at War , is fascinating, compelling and incredibly moving. Highlighting the exploits of certain NSW solicitors who were instrumental in the Gallipoli campaign 100 years ago, there are tales of leadership, bravery, resilience and heartbreak by which it is impossible not to be moved. e Honour Roll on page 32 is particularly powerful, showing just how many talented young lawyers and law students were lost; the waste is palpable. Perhaps the most distressing aspect of the story, however, is the photographs (including the image that features on the front cover) which depict, among other things, proud mothers and fathers bidding their eager young sons – many of whom would never return – what they thought was a temporary adieu. If only they knew what we know now. If only they knew of the horrors that awaited and the fear they would experience as they faced death on the peninsula. Perhaps it is a blessing they were ignorant.

Michael Nguyen Photographer Jason McCormack Editorial enquiries Juliana Grego Business Development Manager Melissa Cossar Classified Ads Advertising enquiries or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 e 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 speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e 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.

Claire Cha ey


Tony Cunneen teaches at St Pius X College in Chatswood has written extensively on the history of the legal profession. His cover story looks at the contribution of solicitors in Gallipoli. A Tale of Gallipoli p24

Christopher Kerin is a director of Kerin Benson Lawyers. In this edition of the LSJ, he writes about the completion and statutory warranty aspects of sweeping amendments to the Home Building Act . Legal updates p70

Julie McCrossin is a writer and trainer who studied law. She

Dr John Hart is an expert in longevity

Cover image: Australian War Memorial

medicine. This month, Law Society members receive 20 per cent o their first visit to Elevate, the clinic where Dr Hart works. Read his latest piece about the brain. Health matters p54

interviews human rights lawer Geo rey Robertson about ISIS, the Magna Carta and the Australian Constitution. Expatriate, not Ex-Patriot p34

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 Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.






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38 YOURDIGITAL AFTERLIFE Facebook? LinkedIn? Twitter? Jane Southward reports on a new challenge for family and wills and estates lawyers 42 THE POWEROF PROBONO Nicolas Patrick tells Claire Chaffey about the importance of pro bono in law firms 54 HEALTHMATTERS Dr John Hart gets to the heart of brain health

56 BEWARE THE INNERCRITIC Psychologist Guy Vicars has a warning for lawyers who talk nasty (to themselves) 57 FITNESS TECHNOLOGY Is wearable technology enough to get you fighting fit? 58 CITYGUIDE Ute Junker’s guide to 24 hours in New York 62 YOUWISH Claire Chaffey dons her soft-soled shoes for a sailing adventure in Tassie

Justice Emilios Kyrou sounds a warning about understanding cultural diversity 24 COVER STORY On the eve of the 100th anniversary of Gallipoli, Tony Cunneen details the contribution of NSW solicitors to the campaign 34 EXPATRIATE, NOT EX-PATRIOT Julie McCrossin talks international law and Magna Carta with Geoffrey Robertson as he prepares for a one-man show in Sydney

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43 CAREER 101 44 FIONACRAIG 46 ADAY INTHE LIFE Jane Southward meets entertainment lawyer Chris Chow 48 PRACTICE MANAGEMENT The lowdown on e-conveyancing 50 EXTRACURRICULAR Amanda Davidson and a special charity, Pearls 64 LIFESTYLE The latest in wine, books and events 106 EXPERTWITLESS Legal news to make you giggle



News and events from the legal world


13 PROFESSIONAL NOTICES 15 FROMTHE ARCHIVES 16 OUT ANDABOUT 17 CAREERMOVES Who moved where this month 18 GLOBAL FOCUS Legal news from around the world 22 PEARLSOFWISDOM Justice Steven Rares 41 LIBRARY ADDITIONS

New books at the Law Society Library

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WRITE TO US: 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: Please note: we may not be able to publish all letters received.

The power of a knowledge management practice While I found the article written by Professor Janet Chan, of UNSW Law School, on a new national survey on work/life balance by in the LSJ (March 2015) very relevant, I was incredibly annoyed with the inclusion of the comments by Margaret Thornton and Joanne Bagus (from The Gender Trap: Flexible Work in Corporate Legal Practice ) and in particular that knowledge management “has emerged as a new feminised underclass of lawyering”.

I find this comment demeaning to both the male and female lawyers who are in knowledge management or KM and disclosing a total lack of what type of work KM encompasses. With more than 30 years legal experience, I now have my own sole practice specialising in intellectual property (IP) law and I publish what I consider to be a very successful weekly IP newsletter, Personalised IP . In 2004, after having been a senior associate in a top-tier firm and then running my own practice for nine years, I chose to go back into a law firm part- time but wanted a job that






CONGRATULATIONS! Sonal Moore has won lunch for four.

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The birth of an idea

to deliver high quality legal advice to my target client base. In addition, KM had allowed me to put myself back in touch with many of my peers, develop a network and commercialise my newsletter. There was nothing “underclass” about the lawyering I or my colleagues did and I maintain that all junior lawyers would benefit greatly from a stint in KM where they can learn to deliver a better service while being in a collaborative area of the law. Sonal Moore Principal, Moore+Moore IP

precedent drafting, compiling and sharing information on a diverse range of topics relevant to our practice groups, assisting other lawyers in transactional work and generally being the senior lawyer with an open door that is too often missing from legal practices today. I believe everyone benefited from the role we played. At the end of 2010 when I decided it was time to reinvigorate my practice, my KM skills meant that I was more up to date on the current law than many other practitioners. I had fine-tuned my eye for detail and I was in a position

didn’t carry the tyranny of the billable hour as my two daughters were still at school. I wanted a job that was intellectually stimulating, would enhance my legal skill set and give me flexibility. KM ticked all of the boxes. I was a KM lawyer in the IP group of a top-tier law firm for five years. I was part of a group of senior lawyers, both women and men, with different specialties, who had chosen the KM route for different reasons. We sat with our practice groups and provided a very wide variety of support services including mentoring,

At a recent (and impressive) CLE seminar staged by the College of Law on wills and trusts, the presenter referred several times to “CGT- pregnant assets”. Once I regained my composure, I realised this meant assets that carry a potential CGT (capital gains tax) liability if affected by a transfer. Whether or not this was the presenter’s original expression, I’m sure it could only have been “conceived” of by a lawyer! David Grinston, North Sydney

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COMMUNITYLEGALCENTRE FUNDINGCRISIS The National Association of Community Legal Centres (NACLC) has written to the Commonwealth Government expressing major concerns about proposed reforms to the funding of legal assistance services and, particularly, the timetable for change. The Commonwealth Government confirmed last month that it proposes to change the funding model and process for allocating funds for community legal centres (CLCs). The Commonwealth is proposing to allocate a certain amount of funding to CLCs in each jurisdiction, but then it will be the responsibility of the relevant state or territory government to allocate funding to individual centres. The Commonwealth has stated that new arrangements will take effect from 1 July 2015 but neither the amounts of funding to each state or territory, nor the terms of the proposed funding agreements between the Commonwealth and state and territory governments, will be known until the Federal Budget on 12 May. “While elements of these reforms have merit, this is really an impossible timeline to effectively deal with funding for an absolutely crucial sector,” said Michael Smith, NACLC Chair. “Community Legal Centres assist thousands of highly vulnerable and disadvantaged clients every week and these people will face huge uncertainty when they most need legal help. “This will mean significant uncertainty for CLCs in terms of the services they will be able to offer clients moving forward and leave only a matter of weeks for funding allocation decisions to be made, and the drafting, negotiation, and signing of funding agreements. The proposed timetable is unrealistic and is actually counterproductive to the express intent of the proposed reforms.” Joanna Schulman, CEO of Redfern Legal Centre, said that over the next four years CLCs will lose more than $19.6 million. “In NSW, more than 15 community legal centres are in danger of closing if the proposed funding cuts are implemented,” she said. “At Redfern Legal Centre, we anticipate losing half the solicitors in the general team, which translates to us helping 50 per cent fewer clients.” NACLC and CLCs are already greatly concerned about the effect of announced funding cuts on centres and all current Commonwealth funding agreements for CLCs are due to expire on 30 June 2015. With the proposed reforms, there is minimal infrastructure in place to transition to a new structure from 1 July. NACLC said it supports the sentiments expressed by all state and territory Attorneys-General in a letter sent to Federal Attorney-General George Brandis last week calling for no further funding cuts to CLCs and that states and territories be informed of funding allocations by the end of March if the reforms are to proceed.

The Law Council of Australia (LCA) has awarded Tamara Kenny, pictured left, and Allison Boland the 2015 John Koowarta Reconciliation Law Scholarship. The scholarship, established in 1994, commemorates John Koowarta, an inspirational man who pioneered Indigenous land rights in Australia. “The Law Council’s John Koowarta Reconciliation Law Scholarship has helped 27 Indigenous law students in completing their legal studies, many of whom have gone on to make valuable contributions to their communities, the legal profession and Australia. It was a great honour to add Ms Boland and Ms Kenny to that list,” said LCA President Duncan McConnel. “Both recipients embody the passion with which John Koowarta lived his life and fought for Indigenous legal rights and I congratulate them on their achievement.” Kenny identifies with the Yuin people from the Bodalla community on the far south coast of NSW. Kenny is in her third year of a combined Arts/Law degree at the University of New South Wales. She is passionate about social justice and said she was inspired to study law to help people, especially those in Indigenous communities, overcome disadvantage. “I believe studying law will equip me with the skills and knowledge that are necessary to understand how the law contributes to help address social justice issues and how it can be utilised to have positive impacts on individuals and communities,” she said. Boland is a Mardigan and Kooma woman from south-west Queensland, studying a double degree in Bachelor of Justice and Bachelor of Law at the Queensland University of Technology. Boland said her interest in becoming a legal professional was driven by a desire to break the cycle of contact with the criminal justice system in her family. She will be the first person in her family to become a legal professional. “By studying law, I am sending a positive message to the young people in my community that gaining higher level qualifications will provide them with life changes and opportunities that are made possible by further education,” Boland said.

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International Law Committee launched the updated edition of The Practitioner’s Guide to International Law at an event at Tresscox in Sydney last month. High Court Judge and NSW Young

Lawyers Patron for 2015 the Honourable Justice Stephen Gageler, pictured top right, addressed the audience as the keynote speaker, providing an insight into his experiences in international law. First published in 2010, the book covers a diverse range of topics, including international conventions, private international law, international dispute resolution, criminal law, environmental law, protection of cultural property and international family law and succession. In writing the foreword for the publication, Sir David Baragwanath, President of the Special Tribunal for Lebanon in Leidschendam, The Netherlands, said: “The energy and confidence of young practitioners adds to the Australian scholarship in international law . . . made accessible by this new edition of a respected text”. According to committtee chair Erika Williams, the guide aimes to “provide an introductory overview of certain aspects of international law for Australian practitioners, to facilitate greater understanding of the area and to promote recourse to international law in resolving disputes before Australian courts and international fora”. The book is available free of charge from the Law Society library or at merchandise/handbooks-and-guides.html

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BEFOREYOU TIETHEKNOT Esteemed members of the legal profession gathered at Herbert Smith Freehills’ Sydney office last month for the official launch of the firm’s new book on joint venture law Before You Tie the Knot. The book, published in conjunction with the Ross Parsons Centre of Commercial, Corporate and Taxation Law at the University of Sydney, was launched by Justice Fabian Gleeson of the NSW Court of Appeal. The book’s co-editor, Herbert Smith Freehills partner Tony Damian, spoke at the event as did the firm’s Australian managing partner Jason Ricketts. Copies of the book can be purchased from the University of Sydney.

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LISMOREFORUMSTRESSES PUSHFORFAIRNESS At a community forum organised by the Law Society of NSW and hosted by solicitors at Lismore Workers Club last month, injured workers and their legal representatives came together to discuss the impact of changes to the workers’ compensation system. The forum included an expert panel chaired by personal injury accredited specialist and local solicitor Andrew Mulcahy, from Mulcahy Lawyers Lennox Head, injury compensation law accredited specialist Brendan Bourke from Bourke Love Lawyers Lismore and Ballina, and Law Society of NSW CEO Michael Tidball. The Lismore gathering was the second of two workers’ compensation community forums organised by the Law Society of NSW in the lead up to the State election; the first being held at Penrith Bowling and Recreation Club on 17 February. “This forumwas a timely reminder of the importance of pressing the political parties and local parliamentary candidates for their commitment to a strong and fair workers compensation system ahead of the state election.” MICHAEL TIDBALL, CEO, THE LAW SOCIETY OF NSW First-hand accounts from injured workers provided compelling and often emotional insights into the impact of the 2012 changes to workers’ compensation entitlements on individuals and their families. A reoccurring theme and common complaint from injured workers and local lawyers was that the workers compensation system had consistently failed to facilitate compassion and fairness when dealing with injured workers. Law Society CEO Michael Tidball said that while it was disappointing that representatives from the two major parties declined the invitation to attend, he was pleased the Greens NSW confirmed their commitment to a fairer workers compensation system. “This forum was a timely reminder of the importance of pressing the political parties and local parliamentary candidates for their commitment to a strong and fair workers’ compensation system ahead of the State election,” he said. March also marked the release of Macquarie University’s Centre for Workforce Futures’ report commissioned by Unions NSW. The report measures the impact of the changes to NSW workers compensation legislation on injured workers’ health and welfare. The Impact on Injured Workers of Changes to NSW Workers’ Compensation report found that more than 5,000 injured workers had lost their workers’ compensation benefits since the State government introduced changes to the system. In addition, it revealed that up to 20,000 workers with long-term injuries had had their entitlements to medical benefits removed. It should be noted that while some benefits have been returned to workers in recent months, it is widely accepted that these changes have still not gone far enough in returning balance to the system.


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14 LSJ I APRIL 2015


review THE YEAR IN 2010

Take a trip down memory lane through the pages of the Law Society Journal.

INTHENEWS A settlement is reached in the country’s biggest ever sexual harassment lawsuit involving Kristy Fraser-Kirk’s $37 million lawsuit against David Jones, its ex-CEO Mark McInnes, and nine directors of the retailer. David Jones reports it has settled the case with Fraser-Kirk for $850,000, including a “smaller” contribution from McInnes. The Crimes Amendment (Fraud, Identity and Forgery O ences) Act 2009 comes into force in February. The change simplifies the existing fraud and forgery provisions in the Crimes Act 1900 . More than 30 fraud provisions are replaced with four new provisions, and 25 forgery o ences are replaced with four new provisions. SKYE’SLAW New penalties for those who deliberately try to avoid arrest by starting high-speed police chases begin under what is known as Skye’s Law. The legislation carries a maximum penalty of three years imprisonment for a first o ence or five years imprisonment for a second or subsequent o ence. The law is colloquially named after Skye Sassine, a 19-month old who died when a getaway van being used by two alleged armed robbers smashed into her family’s car in Sydney’s south-west on 31 December 2009. The Law Society’s Criminal Law Committee and Juvenile Justice Committee raise serious concerns about the law, saying the penalties are “excessive and disproportionate to the gravity of the o ence”. SAME SEXADOPTIONBILLPASSED The NSW Parliament passes legislation allowing same-sex couples to adopt. The Adoption Amendment (Same Sex Couples) Bill 2010 divides members of parliament, who are given a conscience vote before it is pushed back and forth between both houses for two weeks of debate as each seeks to make amendments. The move was recommended by the Law Reform Commission 13 years earlier.

ANATIONALJUDICIARY NSW Chief Justice James Spigelman addresses the Law Society’s Opening of Law Term Dinner and recommends national reform, proposing a national judiciary. “Our present system does not ensure that we make full use of our most talented judges, particularly those with highly specialised knowledge,” he says. Law Society of NSW President Mary Macken urges greater collaboration between the Society and the Law Council of Australia. “Just as we need uniformity, e ciency and a streamlined regulatory framework for the profession, it is vital that the independence of the profession is protected,” Macken writes in the Journal .

In June, the NSW Parliament passes the Crimes (Sentencing Legislation Amendment) Intensive Correction Orders Bill 2010 . Attorney-General John Hatzistergos writes in the Journal that the new law introduces a new sentencing option – the intensive correction order that allows for electronic monitoring, strict curfews, regular drug testing and mandatory rehabilitation as opposed to imprisonment. Hatzistergos says the law is “designed to reduce an o ender’s risk of reo ending through the provision of intensive rehabilitation and supervision, where possible, in the community”.

“Just as we need uniformity, e ciency and a streamlined regulatory framework for the profession, it is vital that the independence of the profession is protected.”

Mary Macken. 2010 President of the Law Society of NSW

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YOUNGLAWYERSBOOKLAUNCH Around 100 guests turned out to see the 2015 NSW Young Lawyers Patron, His Honour Justice Stephen Gageler, launch the new edition of The Practitioner’s Guide to International Law at Tresscox in Sydney.


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AMANDA COWLEY Now a special counsel Gilchrist Connell Sydney

TIJANA PETKOVIC Now a senior associate Blanchfield Nicholls Partners Family Law

RANI JOHN Now a partner DLA Piper Sydney

FRANK ZIPFINGER Councillor Macquarie University

JINGMINQIAN Councillor Macquarie University

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SOUTH KOREA CHEATINGSPOUSESNO LONGERCRIMINALS South Korea’s highest court has ruled that adultery is no longer a crime. The BBC reports that the decision revokes the 1953 law under which cheating husbands and wives could be sent to prison for up to two years. South Korea was one of three Asian countries to make infidelity a crime. About 5,500 people have been convicted of adultery since 2008 – very few of whom have actually gone to prison. A panel of nine judges reviewed the law, with seven deeming it unconstitutional. Presiding judge Park Han-Chul said ideas about an individuals’ sexual rights had changed. “Even if adultery should be condemned as immoral, state power should not intervene in individuals’ private lives,” he said. The court has previously reviewed the law four times and upheld it. The most recent review was in 2008 when actress OK So-ri petitioned the court after she was handed an eight-month suspended sentence for adultery. She suffered a narrow loss, with five judges deeming the law unconstitutional. Some in South Korea have defended the law, arguing its loss would encourage sexual depravity. Dissenting Justice Ahn Chang-Ho said the statute was a “key protector of family morals” and warned that its abolition would “spark a surge in debauchery”.

American lawmakers voted last month to bring back the firing squad as an alternative way to execute death row inmates in the case that supply of lethal injection drugs runs out. The Guardian reports that the state of Utah, facing a nationwide scarcity of lethal drugs, has approved legislation to allow the state to use the firing squad, more than 10 years after ceasing the practice. It is not yet clear whether the Governor, Republican Gary Herbert, will sign the bill, although a spokesman said the state was “dedicated to pursuing all reasonable and legal options” to obtain the execution drugs. If it fails to do so, however, the firing squad proposal would act as a back- up plan. Under the bill, the state will be allowed to use a firing squad in place of drugs in case they are unavailable 30 days before an execution is scheduled. “We are facing a situation where we are going to have to go to court, and it’s going to cost millions of dollars for the state of Utah to defend what we’re doing,” said the bill’s sponsor, state representative Paul Ray. The Republican-controlled Senate voted 18 to 10 to pass the bill with almost no debate. Critics are calling the method archaic and barbaric.

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BURMA KIWI JAILEDFOR MOCKINGBUDDHA New Zealand bar manager Phil Blackwood and two Burmese colleagues have been jailed for two-and-a-half years after being found guilty of insulting religion. According to The Guardian , a Burmese court ruled that by using a psychedelic image of Buddha wearing headphones to promote their bar they were insulting religion. The conviction comes in the wake of a surge in Buddhist nationalism in Burma and an active promotion of the country’s Buddhist character. All three parties pleaded not guilty but were sentenced to jail with labour. Rights groups have condemned the verdict as a direct assault on freedom of expression. “The authorities are clearly trying to make an example with this case, but ironically all it has done is hurt the image of Burma and Buddhism,” said Matt Smith, executive director of the Bangkok-based group Fortify Rights. At a hearing in December, Blackwood said it was not his intention to o end Buddhism when he posted the image on the establishment’s Facebook page in order to advertise a cheap drinks night. He removed the image and posted an apology when he became aware that it was provoking outrage. While Burma’s government lifted restrictions on freedom of speech, association and media, there has also been a rise in Buddhist nationalism.


The Austrian Parliament has passed a new bill aimed at tackling Islamist radicalism by banning foreign funding for mosques and imams. According to the BBC , Austria’s Integration Minister, Sebastian Kurz, has defended the reforms in the face of Muslim leaders who say they fail to treat Muslims equally despite the fact a 1912 law made Islam one of Austria’s o cial religions. First proposed three years ago, the new measures include protection of religious holidays and training for imams. However, Muslim groups have labelled the ban on foreign funding as unfair because the Christian and Jewish faiths are still able to receive funding from abroad, adding that the law reflects a widespread mistrust of Muslims. There are plans to contest the bill in the constitutional court. Kurz told the BBC that the reforms were a “milestone” for Austria. “What we want is to reduce the political influence and control from abroad and we want to give Islam the chance to develop freely within our society and in line with our common European values.” The legislation continues to draw condemnation from Muslims across the world. “Austria will go back 100 years in freedom with its Islam bill,” said Turkey’s head of religious a airs, Mehmet Gormez. C M Y CM MY CY CMY K


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JUDGINGINA MULTICULTURALSOCIETY In trials without a jury, judges need to be adequately equipped to recognise and manage the cultural diversity of the people who appear in their courts, writes JUSTICE EMILIOS KYROU , of the Court of Appeal, Supreme Court of Victoria.

I n a liberal democracy, the rule of law involves fundamental tenets such as equal access to the courts and a fair trial whose outcome depends on an assessment of the evidence that is impartial and free of prejudgment. Fulfilment of these tenets is challenging in a multicultural society where parts of the population do not speak English and do not adhere to uniform cultural beliefs and practices. Australia faces these challenges because it is both a liberal democracy and a multicultural society. Judges need skills and tools to enable them to conduct a fair trial and to reach the correct legal decisions. A trial involves receiving and assessing evidence and making factual findings on that evidence. With oral evidence, the manner in which a witness answers questions and the words and expressions used by him or her can affect the judge’s assessment of the veracity of the evidence. As a witness’s cultural background can influence the content of his or her evidence as well as the manner in which it is given, judicial ignorance of cultural factors has the potential to lead to inaccurate factual conclusions and thus to a miscarriage of justice. The courts have recognised that there are difficulties in using demeanour to assess the credibility of a witness whose culture is other than the dominant Anglo-Celtic culture. Some examples of cultural factors that affect the content of a witness’s evidence or his or her demeanour, which may not be recognised without an understanding of the relevant culture are: • A witness may look down and avoid eye contact with the judge when answering questions because in his or her culture it is considered discourteous

dancing at a wedding, he explains that he was at his son’s wedding and that, although he was in severe pain, he had to dance otherwise the guests would think that he did not truly approve of the wedding. The options While the difficulties and risks involved in using demeanour to assess the credibility of a non-Anglo-Australian witness can easily be stated, finding a practical and proportionate solution is fraught with difficulties. Doing nothing in the face of the obvious risks in individual cases and to the overall administration of justice is not a viable option. There is general acceptance that one of the necessary systemic responses to Australia’s cultural diversity is to incorporate training in cultural matters in courses conducted by judicial colleges. However, there is no unanimity on the nature and extent of such training. Adoption of an ambitious program to educate judges about the full range of cultural issues they might encounter in the course of their work is unrealistic. Australia’s cultural diversity is so extensive that it would be impossible for judges to become familiar with all cultural mores. Such a program might also give rise to the perception, if not the reality, that judges are applying different considerations in deciding cases depending on the cultural dynamics of each case. This has the potential to be incompatible with the general principle that all cases must be decided consistently and in accordance with the same rules. This general principle is vital to the maintenance of confidence in the integrity of the courts and the administration of justice. A comprehensive cultural education program for judges may also create a problem of judges being influenced by their own understanding of

to look directly at a social superior or an authority figure; • A witness may pause before answering questions and give cautious answers because of a cultural desire to show respect for the court’s processes; • A witness may engage in gratuitous concurrence by avoiding direct disagreement with a proposition that is put to him or her in order to avoid conflict. This is a well-documented phenomenon within Aboriginal communities; • A female witness may recount a conversation using euphemisms rather than the actual words used where those words concern topics that her culture regards as unsuitable for discussion by women; • An Indian witness may indicate agreement with a proposition by shaking his or her head in a manner that ordinarily might be interpreted as conveying disapproval; • A female witness from a culture in which women are expected to be submissive may give evidence that is peppered with prefatory remarks – such as “I think” – and which conveys an incorrect impression of hesitancy and uncertainty. In the above examples, in the absence of an awareness of the cultural dimension, the witness’s evidence might be misunderstood or his or her behaviour might be relied upon to support a finding of prevarication, obfuscation or evasiveness. Cultural factors may also affect a judge’s assessment of the veracity of explanations given by a witness for out-of-court conduct. Take the example of a male plaintiff who is suing for a debilitating back injury. When he is shown footage of him participating in vigorous traditional

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THE USEOF HYPERBOLE: ACASE STUDY The case involved a claim for damages for personal injuries by a male plaintiff who grew up in southern Europe. He gave evidence that he was so traumatised by the defendant’s wrongful act that he did not leave his house for three years. Counsel for the defendant then cross-examined the plaintiff at length to establish that he was lying because he was seen in the local bank and supermarket on numerous occasions. I was familiar with the plaintiff’s culture but the defendant’s counsel was not. Unlike counsel, I knew that, in the plaintiff’s culture, exaggerated language is considered a legitimate form of emphasis rather than a deliberate lie. In that cultural context, it is likely that the plaintiff was merely saying that the defendant had caused him to become withdrawn and to cease to socialise. If that was the intended effect of the plaintiff’s evidence then counsel’s cross-examination to establish that the plaintiff’s evidence was literally untrue missed the plaintiff’s point. Fortunately, for reasons which are not presently relevant, I did not need to make a specific finding on this aspect of the plaintiff’s evidence. However, if I had been required to do so, the following difficult questions would have arisen: • Should I have disclosed to the parties that I was familiar with the plaintiff’s culture and that one interpretation of his evidence was that he had become withdrawn and ceased to socialise, so that the parties could take this into account in formulating further questions for the plaintiff? • Should I have withheld the above information and merely asked the plaintiff to clarify whether he literally meant that he did not leave his house for three years? • Should I have said nothing? • In my reasons for judgment, should I have explained what I knew about the plaintiff’s culture and how I used this knowledge in making findings on the plaintiff’s evidence? • Alternatively, should I have put to one side my personal knowledge of the plaintiff’s culture and made factual findings based solely on the evidence adduced and the parties’ submissions on that evidence? It is instructive to consider these questions in a context that does not involve any distinct culture. How would a judge usually respond to evidence from a supervisor that she had told her subordinates “a thousand times” to shut down their computers when going home at night? What about evidence from an injured worker that the box he was asked to lift “weighed a tonne”? These examples indicate that the question of whether a witness is engaging in innocuous exaggeration or lying arises frequently but because we are familiar with common forms of hyperbole, we readily make assumptions that obviate the need to consider the possibility of lying. Yet, in essence, the issues raised by the two examples are similar to those raised by my case.

cultural matters in assessing oral evidence without articulating this in the course of a trial or in their reasons for judgment. Depending on the circumstances, this may infringe the hearing rule of natural justice and the rule that judges must give reasons that adequately disclose their path of reasoning. In some cases, a cultural matter may be one of the issues in the proceeding. In such a case, the above risks are unlikely to apply because it would be expected that the cultural matter would be addressed directly, possibly with the assistance of expert evidence. In most cases, however, cultural matters do not arise overtly as issues. Rather, they may arise inconspicuously and may affect only a small number of questions that may appear mundane. The risk in such a situation is that the cultural dimension may pass unnoticed and result in an unfair hearing and an incorrect legal outcome. Some suggestions It is important that educational and training courses for judges incorporate information about Australia’s different cultures and how culture can influence the content of a witness’s evidence and how it is presented. Those courses need to be sufficiently detailed to instil in judges a mental red flag cultural alert system that gives them a sense of when a cultural dimension may be present so that they may actively consider what, if anything, is to be done about it. The courses should also make judges sufficiently aware of Australia’s cultural diversity so that they can avoid the performance of their functions being inappropriately influenced – whether consciously or unconsciously – by assumptions that are based on cultural stereotypes. For the reasons already discussed, the courses cannot hope to be comprehensive. In many cases, managing a cultural dimension in evidence may require no more than the most basic of all tools in a judge’s toolkit, namely, context and common sense. A witness’s evidence must be considered as a whole and thus the answer to a particular question cannot be considered in isolation. If a witness is caught out lying on numerous occasions during cross-examination then that obviously would be relevant to assessing whether a particular unusual answer involves an innocent cultural dimension or a lack of frankness. Similarly, if common sense suggests that an answer was not intended to be interpreted literally, then the possibility of a figurative meaning should be considered. Witnesses from different cultural backgrounds share many human traits. Accordingly, in many cases the skills and tools that judges have at their disposal to assess the veracity of witnesses’ evidence coupled with common sense will be sufficient to enable judges to perform their functions. There will be other cases, however, where cultural dimensions may involve additional considerations. A key challenge for judicial colleges is to design courses which add to judges’ toolkits a mental red flag cultural alert system of the sort I have described.

This is an extract of an address by Justice Emilios Kyrou at the Cultural Diversity and the Law Conference in Sydney on 14 March, jointly organised by the Migration Council Australia and the Australasian Institute of Judicial Administration.

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The Federal Court of Australia’s JUSTICE STEVEN RARES speaks about the challenges associated with using interpreters and translators in the courtroom.

A s a country with more than 28 per cent of its population born overseas, Australians must recognise that their institutions, including their courts, may need to implement measures to ensure that people who do not speak English at all, or as a first language, and whose cultural practices are likely to be di erent from our own, are not substantively disadvantaged in their ability to access the courts and to receive justice according to law. Interpreters will frequently assist litigants in person, including self-represented claimants for refugee status in the Federal Circuit Court and the Federal Court. Sometimes the interpreter will be competent in a particular language, but not in the applicant’s dialect or his or her local or idiomatic usages which may include subtle di erences from the interpreter’s experience. And, of course, the interpreter assists not just the party or person to whom the interpreter is provided but also all of those involved in the litigation. The judge and the other party or parties thus have a means of communicating in court proceedings with the person requiring the interpreter, a matter essential to a proper understanding of that person’s case or evidence. This enables the person communicating through the interpreter to have a proper understanding so far as is possible for lay persons, of the evidence of the opposing party or parties and of the issues and arguments arising in the case generally.

can be expressed in one of Oscar Wilde’s aphorisms: “We really have everything in common with America nowadays, except, of course, language.” ( The Canterville Ghost by Oscar Wilde.) A good translation requires the translator to be aware of the idiom of both languages and the nuances which each language attributes to particular words. And even the best of translations, particularly from the richness of the singularly extensive word base of English, will not provide a perfect substitute for the original. Just ask yourself, if you are multilingual, how you would translate into another language an English-speaking South African’s statement, “I stopped at the robot.” The South African word for a tra c light is a robot, a fact that is a little bewildering when one first encounters it. Some of the instances where the quality of an interpreter has actually a ected the result can be seen in cases that come before the court in applications under the Migration Act 1958 (Cth) for review of administrative decisions concerning the grant or, usually, refusal of visas. In one appeal that came before me the interpreter in the Refugee Review Tribunal had interpreted a question about the Bible into the Mandarin question: “What is your favourite book story?” Needless to say, the witness was confused and the confusion continued because the interpreter knew no words for any biblical personalities or cultural allusions and simply translated names such as “Moses” as “the person” or “him” or “her”. Hence, the witness became more and more frustrated, saying that

This can extend to situations in which a mediation has been arranged so that there can be a meaningful settlement discussion between all concerned. It is important to bear in mind that interpreters in such situations require regular breaks from the stress of being the interface between a witness or party and the other people in the proceedings who are talking. And the interpreter may be exposed to and a ected by hearing and then translating, a description of very traumatic or confronting evidence. In addition, the court and others present in the courtroom must be conscious that the interpreter is not the witness. It can be easy to overlook that the personality, cultural conditioning and evidence or arguments of the person for whom the interpretation is given are not those of the interpreter through whom he or she is communicating. The interpreter’s use of language, personality and cultural background is interposed in this form of communication. The interpreter swears or a rms that he or she will faithfully interpret the particular language into the English language and the English into the other’s language to the best of the interpreter’s skill or ability. Not all interpreters have any particular level of education. An interpreter who has no understanding of the principles of physics may not be an appropriate choice to interpret for a professor of physics in a case involving the professor’s expertise. Those of us who speak more than one language readily appreciate that translation is not some mechanical or objectively achievable function. Our own experience with the English language

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