LSJ - April 2016
INSIDETHEWORLD OFYOUTHJUSTICE THE TEAM AT THE SHOPFRONT YOUTH LEGAL CENTRE REVEALS WHAT DRIVES THEM
(NOTQUITE) ACCESSALLAREAS ARE FREEDOM OF INFORMATION PROCESSES STANDING IN THE WAY OF JUSTICE?
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36 FREEDOMOFINFORMATION Timely release of information is crucial for access to justice, says NSW Information Commissioner Elizabeth Tydd 40 PROFILE Meet Michelle Dixon, the chief executive o cer of Maddocks, who tells why she loves being a litigator and was reluctant to lead the firm 50 ADAY INTHELIFE Celine van Golde, a Sydney University academic who is leading students in the new Not Guilty: The Sydney Exoneration Project, explains NSW’s new innocence project
54 NUTRITION If you want to maintain clarity and feel less sluggish, try our guide to foods to boost your brain power by nutritionist and author Joanna McMillan 58 CITYGUIDE With the Olympics in August, dive into Rio de Janeiro with Ute Junker’s guide to the world’s biggest party city 62 YOUWISH We test-drive Canberra’s hippest hotel, Hotel Hotel, and managing editor Claire Cha ey discovers it really is worth the hype
Professor George Williams on the debate about the Cameron Government’s plans to repeal the Human Rights Act in the United Kingdom 24 HOTTOPIC Journalist Sarah Ferguson argues that lawyers should do more to encourage their clients to speak to the media 30 COVERSTORY Step behind the security doors of The Shopfront Youth Legal Centre and discover some of the toughest work NSW lawyers tackle
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50 58 62
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS News and events from the legal world 16 THE LSJ QUIZ 19 CAREERMOVES Who moved where this month 20 OUTANDABOUT See photos from the LSJ thank you party 26 INFOCUS Why it’s time lawyers did more to help gamblers find help for their addictions 44 CAREERCOACH The power of saying “no” 46 CAREER101 Richard Skurnik, ExpertsDirect
48 DOINGBUSINESS Etiquette and fashion plus tips to stand out in a job interview 49 LIBRARYADDITIONS New books at the Law Society library 52 EXTRACURRICULAR Maritime lawyer Adrienne Cahalan shares
68 ADVOCACY: THE LATEST IN LAW REFORM
71 POLICY: ABORIGINAL FAMILY LAW ROADSHOW
72 INSURANCE: LIABILITY TO THIRD PARTIES
74 RISK: ‘PUT AND CALL’ OPTIONS
76 EMPLOYMENT: RESTRAINT AFTER REPUDIATION ?
78 FAMILYLAW: NEW ARBITRATION RULES
80 INTERNATIONAL: ASSANGE & THE UN OPINION
her experience as a professional sailor
82 EMPLOYMENT: CASUAL EMPLOYEES & FAIR WORK
Book reviews, events and our movie giveaway
84 PROPERTY: FOREIGN CGT WITHHOLDING TAX
86 BANKING: ASSESSMENT OF THE ABILITY TO REPAY
Yarns we can’t bill for 75 LIBRARYADDITIONS New books for loan 106 EXPERTWITLESS Legal news to make you giggle
88 CLASSACTIONS: CONCURRENT CLASS ACTIONS
90 MIGRATION: HIGH COURT RULING ON M68 CASE
92 TAXATION: TRUSTS & HIDDEN TAX STINGS
93 CASENOTES: HCA, FCA, CRIMINAL, FAMILY & WILLS
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A WORD FROM THEEDITOR
Last month, the LSJ team, along with Law Society Chief Executive O cer Michael Tidball and President Gary Ulman, were lucky enough to host a cocktail function to thank the large contingent of lawyers, journalists and experts who write for our publication. It was an absolute pleasure to be in the same room as, and have the opportunity to thank those who spend so much time and e ort preparing articles that we boldly project into the world of lawyers for your consumption, review and inevitable scrutiny.
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
I was struck by the enthusiasm in the room – ideas for future articles were owing as fast as the wine and discussions ranged from how best to make an article on superannuation interesting to the need to tackle bullying in law rms, why young lawyers need to learn how to present themselves better, and why looking after one’s physical and mental health should be at the top of the priority pile for all lawyers. e diversity in the room matched the diversity in the content we produce each month, and, in turn, the diversity of our profession. To all our contributors, I once again say thank you. You can see some of the photos from the event on page 20 of this edition and on the Law Society’s Facebook page.
Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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
Sarah Ferguson Walkley Award-winning journalist and host of ABC TV’s Four Corners used the fundraising dinner of the Public Interest Advocacy Centre to call on lawyers to encourage their clients to “share their stories”. Hot topic p24
Jane Southward meets the inspiring team at The Shopfront, a free legal service in Sydney’s Darlinghurst, designed to help homeless and underprivileged youth. As Senior Associate Jane Irwin explains, “There is always, always hope.” Cover story p28
Julie McCrossin is a writer and trainer who studied law. She meets MIchelle Dixon, the chief executive o cer at Maddocks, who tells why is an atypical CEO who plans to return to practising law rather than leading the firm. Feature p40
Patrick Parkinson AM is a professor of family law at Sydney University and former Chair of the Family Law Council. He explains the new rules for the arbitration of family property cases which come into e ect on 1 April. Family law p78
Cover photograph: Jason McCormack
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 firstname.lastname@example.org. 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.
NEXT ISSUE: 1 MAY 2016
6 LSJ I APRIL 2016
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APRIL 2016 I LSJ 7
ith the time taken from lodgement to the first day of trial in the Family and Federal Circuit courts now averaging 15 months, the issue of court delays remains high on my agenda. To this end, I recently wrote a joint letter with the President of the NSW Bar Association to the Prime Minister, Malcolm Turnbull, once again urging the Federal Government to review resourcing for family law matters. This letter was sent out of frustration that calls from all quarters of legal practice and the judiciary have fallen on deaf ears. I look forward to relaying theGovernment’s response. Incremental incursions into the common law and human rights of the people of NSW are of serious concern to the Law Society. There must be proper scrutiny of draft legislation in order to protect the rights of individuals from legislative encroachment. This issue was the focus of the 2016 Opening
of Law Term address by the Chief Justice of NSW, the Hon Tom Bathurst. In this speech, the Chief Justice noted that in comparison to the six formal parliamentary scrutiny committees that exist at the Commonwealth level, NSW only has one Legislation Review Committee. It is also worth noting that since 1997 Legislative Council committees have received references for only 11 bills, whereas since 2013 the Australian Senate committees have received referrals for about 180. Through its recently passed Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 the NSW Government has moved to place limits on the right to peaceful protest by NSW people. In my view, it is neither necessary nor proportionate to continue to expand police powers in relation to protests, as sufficient common law powers to restrain or detain people for their own or others’ safety already exist. Under this legislation an assessment of whether police interference with protests and public assemblies is necessary on “reasonable grounds” to avert “serious risk to safety” will be based only on an assessment of an individual police officer. It also creates a new offence of aggravated trespass on inclosed lands (where the maximum penalty is increased tenfold to $5,500), where the element of aggravation is an intention to interfere with a business. Also in March the Minister for Innovation and Better Regulation the Hon Victor Dominello MP announced a major review of the NSWCTPGreen Slip scheme. One of the aims of the review is to put downward pressure on CTP premiums. The Government has also released an independent review of insurer profit that makes recommendations around premium prices, risk rating and the level of competition within the scheme. The Law Society is committed to working with government and insurers to develop a scheme that is affordable and sustainable and which keeps legal representation in the system, to deliver benefits to the victims of motor accidents. Finally, you soon will receive the Law Society’s member services guide, detailing an enhanced program of member services and opportunities for 2016/17. Please take time to read it to find out more about the many programs and benefits available through membership.
8 LSJ I APRIL 2016
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LETTERS TO THE EDITOR
Happy to serve Tom Cowen’s letter and the Chief Justice’s speech are good counter-points in the question about the provision of legal services (LSJ , March 2016). While we can speak of encroachments on basic rights, if it is difficult for many to find affordable, accessible advice, then the point is moot. It would be welcome to have the experience of retired practitioners available and, can I add on my own account, that of the currently unemployed practitioner; we are numerous. Many of us would happy to be of service, though medium- to long-term volunteering biggest challenge is meeting the continuing professional development costs to maintain a valid practising certificate. There may also be supervisory issues if some of us still have restrictions on our certificates. When the Law Society is truly prepared to confront these issues, many regulatory blockages in the sewerage system will be cleared for clients and practitioners alike. Adam Johnston, Davidson Dress sense The new LSJ format was a bit of a surprise. The decision to include (for example) fashion tips and other such content was a significant departure from the sort of material one typically expects to find in so austere a publication. Lawyers have always taken themselves seriously, and so may not be financially sustainable for all. The
disquiet such intrusions cause their subjects. However, we should know that the majority of such intrusions, which impinge upon our right to quietly go about our business free from embarrassment or harassment, prove fruitless. The Australian Drug Law Reform Foundation provides many reasons why police resources should not be deployed for such purposes. One that is personal to me is the inhibiting effect such policies may have on adolescents’ willingness and ability to safely test a substance before ingesting it, for example. Furthermore, there is at least anecdotal evidence that police drug operations are a catalyst for some individuals to consume unduly large quantities of substances to evade detection: unharm.org/ ditch_the_dogs. None of this points to harm minimisation and is redolent of former US First Lady Nancy Reagan’s (or, more ironically, Sarah Palin’s) “just say no” answer to teenage pregnancy. Making contraceptives widely available to minimise the incidence of teenage pregnancies was the far more effective strategy that Nancy’s answer sought to displace. Similarly, NSW policymakers must be ignoring reality and the data when they choose to subordinate the health and wellbeing of adolescents to the goal of enforcing laws proscribing generally victimless acts. While ever such unenlightened approaches
we should – but we’re also all human, and it’s nice to see the LSJ publishing material that reflects the reality that a lot of us are genuinely interested in (and should probably think more regularly about) achieving and maintaining high standards in other areas of our lives, including professional image, personal care and physical and mental health. Good on you, LSJ team. Keep it coming. Thomas Russell, ERA Legal Recreational drug laws As the father of two teenagers, my abiding interest in drug laws and policies in NSW was piqued by a recent Four Corners program on ABC TV on the efficacy of laws and policies aimed at curbing recreational drug use. It is axiomatic, but evidently not to the Deputy Premier and NSW Minister for Police, the Honourable Troy Grant MP, who appeared on Four Corners , that the wellbeing of drug users should be a greater priority than their detection or prosecution. I recall being concerned about drug policies in NSW as early as 2003 when, at Burwood railway station, I saw a woman being required by two police officers to allow them to inspect the contents of her handbag, all due to the inquisitiveness of a specially-trained beagle. We cannot know what conduct is undeterred or crimes go undetected while police officers are so diverted, or the
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19/02/2016 1:17 pm
WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Jonathan Bolton has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
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prevail, we are condemned to seeing more tragic consequences among families of adolescent children as they seek out life experiences. None of us can prevent young people from experimenting with drugs. However, we can do everything within our powers to positively influence teenagers and ensure they survive what, for many adolescents, is an unavoidable, but hopefully brief, phase of their lives. Ultimately it is a matter of personal choice. However, the role of peer pressure should not be underestimated when looking upon those who succumb to temptation or when seeking the most appropriate policy responses. The coerciveness of such pressures should give even the most attentive parents of the highest-achieving children considerable pause. In the existing, zero- tolerance, environment, I could well understand a responsible adult taking unlawful steps to ensure that adolescents for whom they cared consumed drugs in the safest possible manner, whether by pill-testing or venue management. For as long as the law makes a criminal of such parents, the state would appear to be interfering unduly and unhelpfully with parents’ duties to ensure the safety of their offspring and of any young people they might reasonably protect. Also implicit to the Government’s approach is the proposition
that processing mostly young people through the criminal justice system will have a suitably safe and positive impact on a serious social and public health issue. In reality, the greatest impacts are occasioned by the misdirection of limited resources, less safe practices by users and the preoccupation of the justice system with defendants in substantially victimless matters Meanwhile, the harm to tens of thousands of people in NSW caused each year directly and indirectly by alcohol pales the mostly treatment programs. As much as wandering among throngs of mostly blissful party-goers makes for a more agreeable assignment than risking an encounter with an inebriated hotel patron, police could prevent far more harm by focusing on the latter. Given NSW’s enlightened approach to heroin users, the Government’s current approach to recreational drug use is anachronistic and as deleterious to our youth as its diversion of resources is contrary to the efficient functioning and prosperity of this state. The experts have been clear. Politicians and bureaucrats must heed the better advice. They have a sworn duty to self-imposed effects of recreational drug use. State budgets currently directed at the detection of personal drugs would provide far greater social benefits if applied to prevention and
of the freedom of press and speech when the
do so. We can only hope that positive change occurs before another preventable death in the mosh pits adolescents enjoy or outside a pub due to uninhibited violence that police were diverted from deterring. Jonathan Bolton Director, JBL Solicitors Freedomof speech laws George Williams (a Professor of Constitutional Law) is entitled to argue recent legislation “impinges on the freedom of press and speech” (LSJ , March 2016). However, at least those laws have an object, the security of Australia and its population from acts of terrorism. The security of the nation generally is regarded as the principal obligation of any democratic government. Regrettably, there was no equivalent outcry in favour
Commonwealth Government suggested that section 18C of the Racial Discrimination Act be limited in its scope. The various law councils, law societies and bar associations fell over themselves in their enthusiasm to oppose any alteration to the law. At least the recent Commonwealth legislation seeks to protect our life and limb. There is no such purport in the Racial Discrimination Act . I look forward to the professor’s further articles in support of the amelioration of our laws restricting free speech such as can be found in the Racial Discrimination Act, anti- discrimination law, and the various defamation acts.
Lindsay Ellison SC Wardell Chambers
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Community legal centres face ‘fundingcliff’ BY KATE ALLMAN
Community Legal Centres NSW (CLCNSW) has warned courts to brace for increased numbers of unrepresented litigants who cannot afford legal counsel, as Commonwealth funding for CLCs is set to drop by 25 per cent in NSW from July next year. C LCNSW says centres are teetering on the edge of a “funding cliff” that is a result of the National Partnership Agreement for Legal Assistance that began in July 2015. The agreement was negotiated between the Commonwealth and State governments, with CLCs feeling obligated to sign up in June 2015. “There are a lot of elements with which we are unhappy,” said Alistair McEwin, Executive Officer of CLCNSW. Commonwealth funding will be cut by $2.9 million in NSW and $12.1 million nationally between 2017 and 2018 under the agreement. By 2020, funding across Australia is forecast to drop by $34.83 million. The cuts have sparked a national campaign entitled “Community Law Australia – Fund Equal Justice” that is being led by the National Association of Community Legal Centres (NACLC). Community lawyers from across Australia met with members of parliament in Canberra on 14 March to call on the Federal Government to reverse funding cuts under the National Partnership Agreement. They asked the Government to inject $120 million per year into legal assistance which, according to NACLC, is consistent with the recommendations of the Productivity Commission. “In the context of a relatively small overall budget for CLCs, these funding cuts … will have a significant impact on CLC service delivery and on the ability of people seeking legal help to receive the help they need,” said Rosslyn Monro, campaign spokesperson and NACLC chairperson. “New figures released from the NACLC 2015 Census reveal that CLCs turn away more than 160,000 people each year. A 30 per cent cut to Commonwealth funding nationally is likely to lead to 36,435 fewer clients assisted and 45,644 fewer advices provided.”
As an added frustration, demand for community legal assistance appears to be growing. CLCNSW reported an increase in client numbers of 7 per cent in 2014 and 2015. According to McEwin, 57 per cent of these clients had no or low income (an annual income of less than $26,000), 17 per cent identified as having a disability, and 6 per cent were Aboriginal or Torres Strait Islanders. “CLCs help our most vulnerable people – people who can’t afford a lawyer – in a range of legal problems, including family violence, relationship breakdowns, debt, consumer problems, tenancy disputes and employment issues,” said McEwin. “Funding cuts are forcing community legal centres to turn away the most vulnerable and disadvantaged people.” The President of the Law Society of NSW Wales, Gary Ulman, fears that the funding cuts will compound access to justice issues for disadvantaged groups. “If primary CLC funding is insecure, in the long term there is a very real danger that this will increase the gap in legal assistance available for the most marginalised in the community, including Indigenous people,” said Ulman. Anna Cody, director of Kingsford Legal Centre in Sydney, agreed that the cuts would hit those less fortunate hardest. “We rely on government funding to provide help to our local community,” she said. “We help more than 1,800 people every year with everyday legal problems such as family violence, debts, unfair treatment at work, problems with tenancies. We anticipate we will have to cut our services to the most disadvantaged people in our community.” In 2014-2015, CLCs in NSW reported helping more than 58,000 clients and running more than 10,000 cases. In NSW, 21 CLCs developed pro bono partnerships with law firms, which contributed more than 27,000 hours of assistance to CLC work during the 2013-14 financial year. In the face of the “funding cliff”, CLCs would be forced to rely increasingly on these pro bono partnerships to continue to deliver legal help to disadvantaged groups in NSW.
“These cuts will have an impact not only on individuals, but the entire community and the legal system.”
ALISTAIR MCEWIN, EXECUTIVE OFFICER OF CLCNSW
“We anticipate we will have to cut our services to the most disadvantaged
people in our community.”
ANNA CODY, DIRECTOR OF KINGSFORD LEGAL CENTRE
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NEWWEBSITEFOR INDEPENDENTCHILDREN’SLAWYERS Legal Aid NSW has launched a new website for Independent Children’s Lawyers (ICLs) that provides mentoring, social science research
information, links to significant cases, legislation and relevant guidelines. The website comes at a critical time for ICLs, when demand for their work is growing as the Australian legal community increasingly recognises the importance of neutral representatives to advocate for the best interests of children in court.
Nationwide Legal Aid commissions engage almost 550 ICLs to represent children in court cases each year and last financial year ICLs worked on about 4,800 court cases. According to Kylie Beckhouse, Executive Director of Family Law at Legal Aid NSW, the number of cases is growing. “The trend for using ICLs is growing but Legal Aid budgets are shrinking,” says Beckhouse. “Court delays and the increase of self-represented parties has added to the workload and complexity of cases in the system. That’s why these resources [such as the website] . . . are so important to help ICLs to do the best job they can in a di cult environment.” Part of the website is accessible to the public, providing easy-to-navigate information such as interactive, animated clips that explain the role of ICLs to children. The new website is particularly significant for ICLs in rural and remote Australia, who face inevitable challenges when accessing resources, networks and collaborating with colleagues. Beckhouse says the site will help connect these lawyers and allow them to access the training and mentoring available to city practitioners.
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APRIL 2016 I LSJ 13
UKcasepavesway for techadvance
SYDNEY LAWYER RETIRES AT86 By KATE ALLMAN George A Duncan, 1964
By KYLIE PETERSEN , lawyer and Director of Consulting & Services with e.law International A judgment given in the English High Court in February marks the UK’s first judicial approval of the use of predictive coding in disclosure. The proliferation of electronically stored information has created a range of challenges for courts and litigants. Chief among these is the challenge of achieving effective disclosure at a reasonable cost and within reasonable time frames. In 2012, in the unreported case of Moore v Publicis Groupe, US District Court Judge Andrew Peck made the first judicial pronouncement of the role of predictive coding in meeting this challenge. Acknowledging that there is no review tool – human or automated – that guarantees perfection in document review, Judge Peck recognised the appropriateness of predictive coding as a review tool. This position was endorsed by Fullam J of the Irish High Court in Irish Bank Resolution Corporation Ltd v Quinn  IEHC 175. On 16 February, in Pyrrho Investments Limited and MWB Business Exchange Limited v MWB Property Limited and others, Master Matthews of the English High Court reviewed the requirements of the Civil Procedure Rules 1988 and relevant Practice Notes. As these contained no prohibition, and on the basis of a range of factors including experience in other jurisdictions, accuracy considerations and cost and proportionality factors, he approved the use of predictive coding. This amounted to the first judicially-endorsed use of predictive coding in the UK. What is predictive coding? Predictive coding is also known as technology-assisted review, computer assisted review or assisted review. In general terms, predictive coding means that, after an initial training period involving the creation, review and re-creation of sample sets of documents, software is used to generate customised search algorithms for identifying and categorising responsive and privileged documents. The results are validated through human statistical sampling and the results are fed back into the software for further learning and categorisation. Only a small proportion of the entire document set will be subject to human review. The Australian position To date, there has been no judicial determination by Australian courts of the appropriateness of predictive coding in disclosure. No reference is made to predictive coding (however described) in Civil Procedure Rules or Practice Notes although all, including Practice Note SC Gen 7, “encourage the use of information technology as a means of improving the efficiency of litigation”. Practitioners should be aware that current generation eDiscovery software incorporates predictive coding capabilities and that there is nascent but growing use of this capability by Australian litigators. For the sake of certainty, it is hoped that our courts will evaluate the appropriateness of predictive coding in meeting disclosure obligations in Australia.
The oldest member of the Law Society of NSW, 86-year-old Sydney solicitor George Duncan has retired after a career of 58 years. Duncan (pictured above in 1964) grew up in Sydney’s eastern suburbs and went to Waverley College. His classmates included the late District Court Judge Paul Flannery and ex-Supreme Court Justice Robert Hunter. Duncan graduated with a law degree from Sydney University in 1952 and worked for a number of small law firms before joining Unilever in 1962 to work as in-house counsel for the company, mainly doing conveyancing work and advising Australian companies such as Streets and Rosella. Duncan joined the Law Society in 1981 when he resigned from Unilever to set up his own practice at his home in Darling Point. With the help of his “invaluable” assistant Carol, Duncan built his practice to a large client base over the years. By the time he retired in February, he had more than 400 clients. “I started with no secretary,” said Duncan. “I didn’t have the typewriters and secretaries that I had at Unilever, so it was quite stressful at first. The work started to come in and thankfully I met a woman called Carol Walker – who became my assistant. She’s been doing my work since the late 1980s and nothing’s a trouble for Carol.” A lawyer by day, Duncan was also a talented actor by night during his youth, and played a number of lead roles in productions with the Genesian Theatre Company on Kent Street. He was awarded a life membership with the Genesian in 1970. He hopes to revive his love for theatre by seeing more plays during retirement. “I love the theatre, being an actor myself,” says Duncan. “Also going to movies. Lately I have been so busy sidelining my practice that I haven’t had a chance to see many. For now, it’s just good to have a break.”
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PIAC FUNDRAISING DINNER Four Corners journalist Sarah Ferguson joined The Chase r’s Julian Morrow and Ed Santow from the Public Interest Advocacy Centre, pictured left, at the organisation’s fundraising dinner on 25 February. The event at Sydney’s Doltone House raised more than $75,000 for the organisationwhich is an independent, non-profit law and policy organisation, dedicated to providing legal help to the most vulnerable and disadvantaged people in our community. You can find an extract from Ferguson’s address on page 24.
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APRIL 2016 I LSJ 15
LAWSOCIETYHISTORY The Law Society history project is nearing completion and we need your help. We are on the lookout for photographs and illustrations – particularly old ones – of the Law Society in action to complement what we have from the collection of the Society, the State Library and The Sydney Morning Herald . The book to be launched later this year will include five chapters on the history of the society from 1842 to 2016 and five on the way the society works, solicitors at war, the role of women, solicitors in country practice, and the rogues. If you think you have something that will help us tell the story, please contact the author, Michael Pelly, at firstname.lastname@example.org or the LSJ team at email@example.com CONGRATULATIONS We are pleased to announce the winner of the LSJ /M. J. Bale competition. HARRY MAK , staff attorney at Interactive Intelligence, has won $2,000 in menswear from M. J. Bale. Thank you to the many Society members who entered the competition.
Cross-examination Test your legal knowledge ...
1. Who was the defendant in the notorious case upon which the Netflix television series Making a Murderer is based? 2. At what time must Sydney bars and nightclubs covered by the controversial “last drinks” and “lockout laws” cease serving alcohol? 3. After what time of night are takeaway alcohol sales prohibited in NSW? 4. Who is the Chief Justice of the High Court? 5. Which Australian city holds an original copy of the Magna Carta? 6. It is illegal to leave your house in Thailand if you are not wearing underwear – true or false? 7. In NSW, how many passengers must a vehicle carry in order to enter a T3 transit lane? 8. What is the minimum number of passengers required for a vehicle to drive for three kilometres in a T3 transit lane? 9. UberX ridesharing service is illegal in NSW – true or false? 10. According to the Legal Profession Admission Board, how many law schools are there in NSW? Answers on page 65.
The presidents of many of the 29 regional law societies in NSWmet in Sydney in February. Pictured are: Back row left to right: Andrew Boog, Orana Law Society; Danny Bricknell, North Metropolitan Law Society; Helen McGowan, Vice President, as proxy for Allison Bruce, Albury & District Law Society; Andrew White, Blue Mountains Law Society; Cassandra Banks, Clarence River & Coffs Harbour Law Society; Geoff Shelton, Liverpool & Fairfield District Law Society; Maria Daniele, Inner West Law Society; Lauren Howes, Shoalhaven & District Law Society; Richard Green, Eastern Suburbs Law Society; Gary Fox, Newcastle Law Society; Grieg Lamond, Far North Coast Law Society; Front row left to right: Madeleine Reid, Treasurer, as proxy for Kim Rowley, St George-Sutherland District Law Society; Con Ktenas, City of Sydney Law Society; Jodie Thurgood, Mid-North Coast Law Society; Brett McGrath, Macarthur Law Society; Natalie Scanlon, North & North West Law Society; Dixie Fitzclarence, Far South Coast & Monaro Law Society; Tricia Arden, Central West Law Society
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HARJ NARULLA Narulla has been working for Justice Margaret Beazley in the NSW Court of Appeal since graduating with a law degree from UNSW in October 2015. In September, he will begin postgraduate studies at Oxford University on a Rhodes Scholarship. He talks to KATE ALLMAN .
What do you want to do with your law degree? After studying in Oxford, I would love to practise as a solicitor at the Aboriginal Legal Service or Legal Aid NSW. My legal training also gives me a clear understanding of government and policy, so I am considering working in a public or private policy institute later in my career. What do you look for in an employer? My starting point is to look for an alignment of values; does the organisation do work that I support or am comfortable with? Is there another organisation that would suit my goals? If that is resolved, then I have expectations that I think are fairly common: sufficient pay for my seniority and expertise, the capacity for flexible work arrangements, a positive workplace culture that is welcoming and constructive, colleagues who are motivated and invested in their work, and, importantly, a receptive approach towards lateral thinking. How important is salary compared with other perks such as flexible work practices, regular hours and extracurricular opportunities? I’m young enough to not have the financial responsibility that comes with a mortgage or dependents, so I don’t value my prospective salary very highly at all in terms of its relative importance when weighed against other factors. For the same reason, I am also happy to work long hours at this point in my life and career. I can anticipate that as I get older I will place a higher premium on flexible work arrangements that allow me to have a meaningful presence at home. So, too, will the importance of my salary increase. There is no easy resolution to the tension between these variables. I know that the ideal workplace – with high salary, regular hours as well as working flexibility – can be something of a chimera. Where do you see your career in five or 10 years? Aside from my desire to practise and then work in policy, I foresee an ongoing (but not full-time) presence in academia.
APRIL 2016 I LSJ 17
mind your ethics
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
For the full round-up of Law Society advocacy, see page 68.
ACAUTIONARYNOTEABOUT FORENSICJUDGMENT A question often debated by solicitors regards the required forensic judgment that must be used when presenting a matter before the court. In particular, when there is occasion when a solicitor may be appearing in court, not as merely the solicitor for a client, but as a party to proceedings. What are the ethical obligations of a practitioner when being a self-represented litigant? Rule 17 Independence – avoidance of personal bias 17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable. 17.2 A solicitor will not have breached the solicitor’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgments called for during the case so as to: 17.2.1 confine any hearing to those issues which the solicitor believes to be the real issues, 17.2.2 present the client’s case as quickly and simply as may be consistent with its robust advancement, or 17.2.3 inform the court of any persuasive authority against the client’s case. Ignoring the required level of forensic judgments and using the skill and experience of legal practice to inconvenience the court by excessive delay, failing to identify the real issues, present a case in an excessively long and complex manner inconsistent with the robust advancement of a case, and failing to inform the court of any relevant persuasive authority, may be in breach of the professional obligations of the solicitor. Regrettably, an unwanted practice of some solicitors, who are self-represented litigants, has been the erosion of the required forensic judgment necessary for every case. This has added to workload and unwanted delays to an already busy court system. If a solicitor is the self- represented party to proceedings, it is important to be aware of solicitors’ Rule 17 and remember the old legal adage: “Acting for oneself may prove you have a fool for a client” BY PAUL MONAGHAN , SENIOR ETHICS SOLICITOR, LAW SOCIETY OF NSW
Family andFederal Circuit courts The Presidents of the Law Society and the NSW Bar Association wrote to the Prime Minister, Malcolm Turnbull, requesting an urgent review of resources in both the Family Court and Federal Circuit Court to reduce the delays experienced by litigants in family law matters. Homebuildingcompensation fund The Property Law and Business Law Committees prepared a submission to NSW Fair Trading in response to a discussion paper on the reform of the Home Building Compensation Fund. The Law Society supported the need for reform in this area and encouraged NSW Fair Trading to consider fundamental parts of the scheme, such as whether it should continue to operate as a scheme of last resort. Inquiry intoelder abuse inNSW In a submission to the NSW Parliament General Purpose Standing Committee No 2, the Elder Law and Succession and Criminal Law Committees called for practical measures to assist in safeguarding the elderly against financial abuse through the improper use of powers of attorney. The criminal law issues included the effectiveness of NSW laws and policies relating to the treatment of older persons in custody. Reviewof the extensions to the Crime (HighRiskOffenders Act) 2006 The Criminal Law and Human Rights Committees prepared a submission in relation to the statutory review. The submission opposed any expansion of the qualifying “serious violence behaviours” set out in the Act. They noted that extended supervision orders and continuing detention orders are extraordinary measures outside of the judicial sentencing framework and their use should be limited to those offenders who present only the most serious risk to society.
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MEMBERS ON THE
ZOEBOJANAC Joined as Special Counsel and Defamation and Reputation Protection Division Director Levitt Robinson Solicitors
WENDYBLACKER Joined as Partner, Insurance Barry.Nilsson. Sydney
CONKAKAKIOS Joined as Partner, Insurance Barry.Nilsson. Sydney
JACKGENG Joined as Senior Associate, Insurance Barry.Nilsson. Sydney
RORYO’CONNOR Joined as Special Counsel, Insurance Barry.Nilsson. Sydney
JENNIFERDEAN Promoted to Special Counsel, Intellectual Property, Technology & Competition Corrs Chambers Westgarth, Sydney
KIRSTYDAVIS Promoted to Special Counsel, Environment & Planning Corrs Chambers Westgarth, Sydney
JAMESSHIRBIN Promoted to Special Counsel, Corporate Advisory Corrs Chambers Westgarth, Sydney
KATHERINECZOCH Joined as Principal Gilchrist Connell, Sydney
CLAREBRANCH Appointed as Principal Gilchrist Connell, Sydney
REBECCAGILBERT Promoted to Associate Newnhams Solicitors
GARYNEWTON Joined as Partner, National Property Team TressCox Lawyers, Sydney
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
JUNE 2014 I LSJ 1 APRIL 2016 I LSJ 19
Briefs OUT AND ABOUT
LSJ COCKTAIL PARTY More than 100 people gathered at the Law Society’s thank you event for contributors to the LSJ on 10 March at Ananas Bar and Restaurant in The Rocks. PHOTOGRAPHY: JASON McCORMACK
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OUT AND ABOUT
APRIL 2016 I LSJ 21
Briefs GLOBAL FOCUS
The UK Human Rights Act was an important catalyst in shifting the Australian debate back to proposals for legislative change. This shift was so significant as to produce the first successes in Australian legal history towards some form of Bill of Rights. This occurred at the state and territory level. The first to move was the Australian Capital Territory (ACT), which after a community consultation led by Professor Hilary Charlesworth, enacted a Human Rights Act in 2004. The second was Victoria, which after a community consultation that I chaired, enacted its Charter of Human Rights and Responsibilities in 2006. A parliamentary inquiry is under way in Queensland on the subject of whether that state should enact a similar law. The ACT and Victorian instruments are based on the UK model. They provide for enhanced parliamentary scrutiny, a new interpretive function for the courts and for courts to declare legislation to be inconsistent with human rights. They also contain significant adaptions of the UK Human Rights Act . These adaptions were inspired by reactions to the UK model, including the political and media pushback more than a decade ago that has since grown into the full-blown crisis afflicting the statute. The UK law has been widely attacked in parts of the press, is poorly understood by the public and has been slated for repeal by the Cameron Government, which proposes to replace it with a British Bill of Rights. It is the policy of the UK Government to “break the formal link between British courts and the European Court of Human Rights and make the [UK] Supreme Court the
TheUK HumanRights Act debate
The Cameron Government has committed to repealing the UK Human Rights Act 1998 . PROFESSOR GEORGE WILLIAMS looks at the debate and the significance of the Act.
T he long-running debate common law world and all the way to Australia. This is because the Act is more than just an instrument of human rights protection for Britain. It stands as a leading example internationally on how rights can be safeguarded without constitutional entrenchment or conferring supremacy upon the judiciary. The Act stands in contrast to the world’s most influential model of domestic human rights protection, the United States Bill of Rights. The UK Human Rights Act is not the first instrument of this kind. The Canadian Bill of Rights 1960 and the New Zealand Bill of Rights Act 1990 are prior examples. With the UK law, they have become known as the “Commonwealth model” of human rights protection. over the future of the UK Human Rights Act 1998 has reverberated around the
It is fair to say, though, that the UK model is of the greatest international importance. It is a more refined version of this approach to human rights protection. The New Zealand model, for example, makes no express reference to declarations of incompatibility. This UK device permits courts to send a statute found to be inconsistent with basic human rights back to parliament for reconsideration. The UK law is also of undoubted political significance due to it being enacted in the home of Westminster democracy. The influence of the Human Rights Act as an exemplar of human rights protection can certainly be seen in Australia. The Australian debate on national human rights protection was going nowhere throughout the 1990s. This was due to the debate focusing mainly on the prospect of bringing about a Bill of Rights in the United States form.
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