LSJ - April 2017
ISSUE 32 APRIL 2017
NOTESONAHIGH COURT SCANDAL WHY THE LIONEL MURPHY TRIALS STILL FASCINATE THE PROFESSION 30 YEARS ON
ACLIMATEFORDISASTER WHY TREATIES AREN’T ENOUGH TO SAVE THE RISING TIDE OF CLIMATE CHANGE REFUGEES
THEY’VECOME A LONGWAY, BABY HUMAN RIGHTS IN TODAY’S SOUTH AFRICA FINDINGSUCCESS AGAINST THEODDS THE INDIGENOUS LAWYER OF THE YEAR TECHNOLOGYANDMODERNLEGAL PRACTICE THE REPORT NO SOLICITOR SHOULD IGNORE THEDEATHKNELLOFMANUALDISCOVERY LAW IN THE AGE OF PREDICTIVE CODING
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ISSUE 31 I MARCH 2017 I LSJ 73
52 EXTRACURRICULAR Kate Allman meets the surfing lawyers sending waves of charity to impoverished Indonesian families 54 HEALTH Find out why osteoporosis is a silent killer and one of Australia’s most common and costly diseases 62 LUXURYTRAVEL Ute Junker visits El Questro Homestead in Western Australia’s Kimberley region
Professor Jane McAdam discusses climate change
Meet Indigenous law student of the year Johanna Byrne 28 HOTTOPIC An anonymous senior associate calls for law firm partners to value their employees as humans, rather than monetary “resources” 30 COVERSTORY Thirty years since his death, former High Court judge Lionel Murphy’s trials bring important lessons, writes former judge Stephen Walmsley SC
and its impact on displaced persons 44 ASKFIONA
A senior lawyer is hoping for promotion and Fiona Craig advises how to argue the case in a performance review 50 ADAY INTHELIFE Asbestos lawyer Joanne Wade tells Jane Southward about working in a highly specialised field of law, which is also one of the saddest
ISSUE 32 I APRIL 2017 I LSJ 3
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS 16 MEMBERSONTHEMOVE 19 EXPERTWITLESS 19 THE LSJ QUIZ
68 ADVOCACY: THE LATEST IN LAW REFORM
Lawyer Matthew Singh shares fashion tips
71 CONTRACT: PRE-ASSIGNMENT WARRANTY BREACHES
72 NATIVETITLE: KEY RULINGON LANDUSE AGREEMENTS
How to disrupt your disruptions at work
74 BANKING: THE HCA RULES ON PERFORMANCE BONDS
76 PRIVACY: MANDATORY DATA BREACH OBLIGATIONS
Stretching: how to do it better
22 OUTANDABOUT 24 GLOBALFOCUS 40 FEATURE Six lawyers and an
78 PERSONAL PROPERTY: HIDDEN TRAPS OF THE PPSR
80 RISK: ’REASONABLE SUPERVISION’ OF STAFF
The best things to do in Western Australia’s buzzing capital, Perth
82 TECHNOLOGY: DISCOVERY & PREDICTIVE CODING
accountant discuss what it takes to build a law firm
85 PROPERTY: KEY RETAIL LEASES ACT AMENDMENTS
Book reviews, events and our movie giveaway
The new Chair of Community Legal Centres NSW shares what she has learned in a diverse career
88 ARBITRATION: INTERNATIONAL PRACTICE
66 NON-BILLABLES Yarns we can’t bill for 106 AVIDFORSCANDAL
90 ELDERLAW: AGE PENSION, AGED CARE & THE HOME
92 CASENOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS
4 LSJ I ISSUE 32 I APRIL 2017
PROUDTOBE A LAWYER?
You should be. At the Law Society of NSW we
support you to be the best lawyer you can be. With extensive resources, support services, facilities and networks at your fingertips, you can get on with the task of upholding the rule of law
and defending the rights of all. Who wouldn’t be proud of that? Renew your Practising Certificate and Law Society membership online from 4 April www.lawsociety.com.au/benefits
ISSUE 31 I MARCH 2017 I LSJ 73
A WORD FROM THEEDITOR
As you’re reading this, the time for renewal of both your practising certi cate and Law Society membership is almost upon us (renewals open on 4 April). is year, we have created something special to celebrate the fact that lawyers, as a diverse and eclectic profession, should be proud of the work they do. Too often, lawyers get a bad rap in society or are the butt of (usually terrible) jokes. However, we see the work our members do as being worthy of celebration. As such, we have created a suite of videos showcasing ve extraordinary
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer
members working across all sectors of the profession – regional, city, suburban, in-house and government. When I rst watched the compilation video that features all ve members, I got goosebumps and felt a wave of pride that I work at the Law Society and am part of a cohort that is so crucial to society. e individual videos, which explore in-depth the story of each member, are equally as powerful. I encourage you to log onto lawsociety.com.au/ bene ts and watch them. Hopefully you will feel proud to be part of a profession that makes a di erence in society every day. I also want to mention how fabulous it is that the LSJ is receiving more and more letters from readers. We are making extra space for your views, and reading your letters is one of the most exciting parts of production. Keep them coming (just don’t write “Dear Sirs”)!
Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 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
Stephen Walmsley SC was a judge of the District Court for 12 years and worked as a lawyer in Canberra as well as a barrister in Sydney. He investigates the history of former High Court Justice Lionel Murphy. Cover story p30
Lynn Elsey has been a writer for more than 20 years. She is a senior writer on the LSJ and edits our health pages. In this issue, Lynn reports on osteoporosis, a silent killer of Australian men and women. Health p54
Jane McAdam is the Director of the Andrew & Renata Kaldor Centre for International Refugee Law at the University of NSW and lectures in international refugee law. She discusses how climate change can force refugee migration. Feature p36
Anthony Herro is a specialist in retail and commercial leasing and Principal of Herro Solicitors. Here he explains the key aspects of the new and wide-ranging reforms to the Retail Leases Act 1994 (NSW ) . Property Law p85
Cover photograph: Fairfax Media
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 email@example.com. 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 2017
6 LSJ I ISSUE 32 I APRIL 2017
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CANCER | I MMUNE D I SORDERS | I NFECT I OUS D I SEASE
ISSUE 32 I APRIL 2017 I LSJ 7
he 35th US President, John F. Kennedy, once said: “Change is the law of life. And those who look only to the past or present are certain to miss the future.”
As a profession, we are not immune to rapid changes brought about by new technology and the evolving needs and expectations of the public and our clients. To better understand these forces and help arm our members with the knowledge and skills needed for the future, the Law Society established the Future Committee in 2016 and, in turn, the Future of Law and Innovation in the Profession (flip) Commission of Inquiry. This culminated in the successful launch of the 2017 flip report in March – containing findings and recommendations critical for the future of our profession. I congratulate Gary Ulman, the Society’s Past President and Chair of the Future Committee, for his leadership in delivering this initiative. I encourage you to view the report, which is available online at lawsociety.com.au/flip . The NSW Government introduced the Motor Accident Injuries Bill 2017 last month, representing an improvement on initial plans proposed last year. Your Society continues to be instrumental in the reform process, advocating for a scheme that upholds fairness for injured motorists by retaining access to adequate benefits and legal representation, while delivering savings to motorists. In line with the Society’s ongoing commitment to help address the justice gap for Aboriginal and Torres Strait Islander people, I recently was appointed to the Advisory Committee of the Australian Law Reform Commission’s Inquiry into Indigenous Incarceration. The ALRC is tasked with examining factors leading to the over-representation of Indigenous peoples in our prisons and to consider law reform to address this national tragedy. The inquiry acknowledges the majority of Indigenous Australians are grossly over-represented in terms of contact with the criminal justice system. I look forward to working closely with the Commissioner of the Inquiry, His Honour Judge Matthew Myers AM. The Society will also continue to tackle this issue through our Thought Leadership program this year. Plans are well under way for our two major fundraising initiatives, giving NSW lawyers the opportunity to flex their creative muscles – Just Art and Just Music. These competitions will be open to lawyers and law students to help raise funds for the Society’s 2017 nominated charity, Bara Barang. An initiative of the Darkinjung Local Aboriginal Land Council, it aims to improve the lives of Indigenous people on the Central Coast of NSW, including employment and skills programs for young people facing the justice system. A concert and exhibition for finalists will be held in September with entries open soon until the end of June.
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ISSUE 32 I APRIL 2017 I LSJ 9
LETTERS TO THE EDITOR
Commemorating John Plunkett The profile on
“put out of the way” before the trial of the remaining four of the 11 killers commenced. When Henry Dangar died, he was one of the colony’s wealthiest men with extensive landholdings. Mr Tedeschi is to be congratulated for raising awareness of Plunkett who he describes as a colonial Martin Luther King in his tireless advocacy for equality for all and access to public education. Renaming a bridge in Plunkett’s honour achieved great public good and perhaps provide small salve to a wound that lies very deep with the Kamilaroi people. Kate Lumley would acknowledge a heroic personality who Gender inequality I consider myself diametrically opposed to gender inequality in all professions and, particularly, as a young female lawyer, in the legal profession. I was most relieved when the Sydney University Law Society Women’s Committee pointed out in their recent letter to the editor that when it comes to the appointment of women barristers to the role of Senior Counsel, this year we are exactly on the right track (though you had to read between the lines). As the committee helpfully noted, female barristers make up approximately 20 per cent of the bar at present. Of the 15 persons at the top of their professional game who were appointed silk this year, three of those were women. Or,
you could say, 20 per cent were women; a perfectly sound representation of the current gender make-up of the NSW Bar. I look forward to watching both of these figures rise in the coming years. In the meantime, I would like to pose a question to the committee: how might you feel if one of your fellow students took a gap year in the middle of their degree and then returned expecting to graduate at the same time as the rest of the cohort? While I’m reluctant to compare taking a gap year around Europe to the often arduous journey of becoming a parent, there is an element of similarity. Both come with unique, joyous and life changing experiences that some people, for whatever reason, may not have the good fortune to enjoy, but neither are things that we should later receive compensation for in our professional lives over our colleagues – male or female. In this day and age, women can have it all – as we well should. Unfortunately, the practical reality of trying to fit it all in often means something’s gotta give. Emily Lane, Solicitor The first casualty It would be wrong to let pass without correction aspects of your feature story ( LSJ February) in which Charles “Chas” Licciardello comments on the (excellent) APEC stunt he performed as part of The Chaser’s War on Everything in 2007.
Mark Tedeschi AM QC’s book Murder at Myall Creek: the Trial that Defined a Nation ( LSJ Feb) asks how we can fete the relatively unknown John Hubert Plunkett. Mr Tedeschi reveals the role of Plunkett, the Attorney-General and Solicitor General for NSW who successfully prosecuted seven of the 11 accused of the murders of 28 Wirrayaraay people of the Kamilaroi nation in 1838 at Myall Creek. Here’s a suggestion: rename the Dangar Bridge over the Barwon River at Walgett the Plunkett Bridge. The only access into Walgett for residents of the Gingie community, Kamilaroi people, is to cross the Dangar Bridge. They are daily reminded of the massacre and of the Dangar family’s appropriation of their land during the Frontier Wars of the nineteenth century. Thomas Dangar MLA opened the bridge, named for the Dangar family, in 1877. Thomas was the nephew of Henry Dangar (1796-1861), the pastoral leaseholder of Myall Creek Station when the massacre occurred. Henry Dangar joined the Black Association, a group of landholders and squatters, established as a defence fund for the accused murderers. Henry Dangar also arranged for a key witness to the massacre, a young Aboriginal boy named “Davey”, to be
AUSTRALIA’SGREATESTREFUGEECHALLENGE ANDTHESOLICITORSSTEPPINGUPTOMEET IT
SPEAKINGHISMIND NEWATTORNEY-GENERALMARKSPEAKMAN ONWHYPOLITICSNEEDSMORELAWYERS
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23/02/2017 4:56 pm
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: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Kate Lumley has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 32 I APRIL 2017
Times  FCA 307. Ms Seidler does not explain how s 18C “will only shut down legitimate debate about race”; any internet search of “race in Australia”, for example, will illustrate the healthy and extensive current debates on the issue. What s 18C “shuts down” is – as in the case Ms Seidler invokes, Eatock v Bolt – discussion about race that is not done in good faith. Mr Bolt’s conduct is an example: he made an “erroneous” comment that was “unsupported by any factual basis”, and he asserted facts that were “substantially proven to be untrue”. In Ms Seidler’s view, the Andrew Bolt decision will “deter anyone discussing matters that have a public interest component”. Only those who wish to have such discussions in bad faith – based on assertions of untrue facts, for example – need be deterred. For everyone else, go ahead and exercise the extensive and respectful free speech that ss18C and 18D, read together, promote. Professor Simon Rice OAM Some balance? Further to Polly Seidler’s letter printed in the March LSJ , will the LSJ balance the debate by inviting a s 18C contribution from Anthony Morris QC? These are my personal opinions, and not those of my employer. Valentino Musico
view that the Chasers would not enter or be taken into the restricted area. The motorcade had been waved through by police and police permission in fact constituted “special justification” for entry (as defined in s 37(2)(b) of the Act). All of this means that, contrary to what Licciardello has asserted, there was never a trial in which a judge watched television footage in the court and found the accused not guilty “because it was so clear that we were trying not to break the law”. Hopefully it is not descending to nitpicking to also point out that, if any of this had happened (which it did not), the matter would not have been heard before a “judge” anyway. The charges, which – absent aggravation – carried a maximum penalty of six months imprisonment, were brought in the Local Court and would have presumably been heard by a Magistrate. Paul McDonald, solicitor The s 18C debate If the words of s 18C of the Racial Discrimination Act went “far beyond what is needed to enact the international treaty” on which it is based (Polly Seidler, LSJ Mailbag March), the provision would be unconstitutional to that extent. In Toben v Jones (2003) 129 FCR 515, the Full Court of the Federal Court unanimously rejected a challenge to the constitutional validity of s 18C and the relevant part of the Act. The constitutionality
As the article indicates, the stunt involved Licciardello and others entering an APEC security zone with a fake motorcade in September 2007. Licciardello subsequently emerged from one of the vehicles dressed as Osama bin Laden. Following the stunt, the Chasers were charged with entering a restricted area without special justification, contrary to section 19(1) of the APEC Meeting (Police Powers) Act 2007 (NSW). What happened next has not been accurately relayed in the LSJ article. In particular, Licciardello asserts that the Chaser team was “found not guilty” in respect of charges relating to the stunt after “the judge watched the original footage play back in court”. This is just not true. In fact, there was no verdict on any of the charges. The (Nick Cowdery) directed that there be no further proceedings on all charges and announced that they would be withdrawn the following day. The DPP published a statement explaining his reasons why there was “no reasonable prospect of conviction”. In short, he believed the prosecution would not be able to negate, beyond reasonable doubt, the existence of an honest and reasonable (but mistaken) matters were belatedly referred by police to the ODPP in March 2008. They had been set down for a two- week hearing in July 2008. On 28 April 2008, the DPP
of s 18C was raised with me by the Parliamentary Joint Committee on Human Rights in its recent hearings for its inquiry into “Freedom of speech in Australia”, and went unremarked in its report in February this year. Ms Seidler says, “the time taken to conciliate and defend [an 18C] matter in court is a concern”. The time that any matter takes to make its way through the court system is “a concern” that is generally held; it is not peculiar to, or worse in, the half dozen or so s 18C cases that get to court in a year. The fact that – differently from other litigated matters – almost all complaints under s 18C are resolved by conciliation, by an independent body, before any proceedings are commenced, is a considerable saving in time, cost and stress to a person against whom a complaint is made. The actual test for permissible vilification is broader than Ms Seidler’s “reasonable and in good faith engagement in public debate”; it is (in relevant part) “anything said or done reasonably and in good faith in the course of any ... discussion or debate made or held for any ... genuine purpose in the public interest”. It may seem to Ms Seidler a test that is “impossible to satisfy”, but the courts have had no difficulty in applying the (actual) test, and finding it satisfied; see, eg Jones v Scully  FCA 1080; Bropho v Human Rights & Equal Opportunity Commission  FCAFC 16; Clarke v Nationwide News Pty Ltd trading as The Sunday
ISSUE 32 I APRIL 2017 I LSJ 11
Newstudy to track “glut” of lawgraduates
BY KATE ALLMAN
Three thousand Australian law students will this month be surveyed about what they intend to do with their law degrees, in an Australian-first study launched by the Law Society of NSW in partnership with consultancy firm Urbis. The Law Student Tracking Survey will be sent to 14 law schools across NSW and the ACT and will ask final-year law students whether they intend to practise as lawyers or take their education in a different career direction. In three years and again in five years’ time, the same cohort will be invited to answer questions to track their employment experiences. CEO of the Law Society of NSW Michael Tidball said the Law Society launched the tracking survey in response to recommendations from its 2014 Report on the Future Prospects of Law Graduates. “The Future Prospects of Law Graduates report found that there was a need for empirical rigour in scoping what was happening to lawyers after they graduated,” said Tidball. “This study brings that empirical rigour to the debate about the number of law graduates and what happens to them post-graduation. ” The study aims to dispel myths about law graduate employability, amid recent media commentary about the perceived over-supply of graduates. “There has been some concern about growth in the number of law graduates recently, and the number of jobs that are available to those graduates,” said Director of Urbis Alison Wallace. “Are we facing an oversupply of law
“This survey will allow us to ascertain whether there is actually a problem with an oversupply of law graduates, and, if there is, to put an informed and evidence-based plan in place to address it.” The Law Society has this year increased its services for law graduates seeking employment by launching a new legal jobs portal called LegalVitae, a new graduate mentoring program to help students transition to professional life, and a legal careers fair where more than 27 legal employers showcased diverse opportunities to Sydney law students. The aim is to make students aware of the many employment options that a law degree can offer, beyond the standard clerkship-to-lawyer pathway associated with top-tier firms. “I’m studying finance as well as law, so I have a broader outlook for potential jobs,” law and commerce student Alex Wilde told LegalVitae representatives at The Big Meet law careers fair in Sydney on 17 March. “I’m not worried if I don’t become a lawyer. There are lots of other opportunities.” Many students at the fair expressed their desires to pursue opportunities other than graduate roles in top-tier firms. Ryan Whittard from Macquarie University said he was keen to use his law degree in an international role. “If I could have gone straight into international law that would have been great, but the pathway isn’t that direct. My dream job would be working in the United Nations and standing up to Donald Trump.” Urbis plans to release a draft report of the Law Student Tracking Survey in September this year. Further results will be available after the follow-up studies in 2020 and 2022.
CEO of the Law Society of NSW Michael Tidball and Director of Urbis Alison Wallace.
graduates? Is there a graduate glut? There is a lot of anecdotal information circulating but until now it has been difficult to get actual numbers on the subject.” In 2015, statistics published in The Australian Financial Review indicated that the employment prospects for law graduates were grim – with almost 15,000 law graduates entering a jobs market of just 66,000 solicitors. However, last year the Council of Australian Law Deans (CALD) corrected these numbers by directly surveying the law schools in Australia. The CALD study returned a much smaller figure, with the law schools reporting that just 7,583 law students graduated in 2015. CALD chair and Melbourne University Law Dean Professor Carolyn Evans said the exaggerated numbers could have stemmed from counting Practical Legal Training (PLT) and masters’ students twice, as well as confusing government data. Following the mix-up, the Law Society of NSW was keen to set facts straight about law graduate employment. “From a NSW Young Lawyers perspective, a comprehensive data set will allow us to broaden and enhance the work we’re doing with and for the benefit of law students and graduates across NSW,” said President of NSW Young Lawyers Emily Ryan.
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NEWTHISMONTH NEWASSOCIATION OFWORKPLACE INVESTIGATORS A new association for lawyers who conduct andmanage impartial workplace investigations will launch in Sydney on 1 May. The Australasian Association of Workplace Investigators (AAWI) is a chapter of the US- based Association of Workplace Investigators and is the first association to represent workplace investigators in Australasia. AAWI has stated its mission is “to promote and enhance the quality of impartial workplace investigations and provide mutual support for those who work in the field”. A Melbourne chapter launched in November 2016 and the Sydney chapter will follow next month. Employment lawyers, workplace investigators, HR managers and in-house legal counsel have been invited to attend. For more information go to aowi.org/aawi
NEWTHISMONTH CLYDE&CO AUSTRALIAART AWARD
FionaWatson has won the annual Clyde & Co Australia Art Award for her sculpture titled “Geisha”. Watson was presented the prize at the firm’s official new office launch party on 15 March.
Professor Gillian Triggs Australian Human Rights Commission President
Watson’s piece is a bronze lost wax casting, a process which has been around for a millennia, and involves turning malleable handmade elements into enduring sculptures. The judging panel, which was led by Clyde & Co consultant Oscar Shub, chose Watson’s piece as the winner because of the exceptional level of its quality. Watson recently completed a Bachelor of Fine Art at Sydney’s National Art School, following a career in advertising.
Over the past decade, particularly since the attack in 2001 on the twin towers in America, Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention. Speech at the 2015 Human Rights Law Centre Dinner
ISSUE 32 I APRIL 2017 I LSJ 13
six minutes with
FIONA CROSBIE CHAIRMANOF ALLENS
– and not only Allens – are working hard at it. It is not enough just to have a diversity and inclusion policy. All parts of the firm need to be on board, with a real commitment from the top and a range of programs to maximise the impact across the organisation. How is Allens making things change? The commitment to diversity here is very strong. Take cultural diversity. In 2009, we were one of the first firms to implement a Reconciliation Action Plan. One part of that is to create real opportunities for Indigenous interns, for example. Another key area is the way we now approach recruitment. Allens was the first law firm in Australia to introduce a contextual recruitment system, called Rare. It recognises that business has a role in breaking the strong link between levels of inequality and the rate of social mobility. How does this impact students and the firm? The program identifies candidates who demonstrate exceptional initiative and resilience but, previously, might not have been interviewed for a clerkship. It is having a positive impact on firm culture and performance. We are a modern meritocracy and we want to put students on a more equal footing so that we draw from a more diverse pool of talent. How are you balancing your new role as chairman with your other responsibilities? It is a challenge. I am working very hard – and enjoying it a lot. I’m keeping an active competition practice and will continue on the board of the Children’s Medical Research Institute, too. alleged collusive conduct by major retail chains, the merger of St George Bank with Westpac, and Wesfarmers’ acquisition of Coles. She is also Chair of the Law Council of Australia’s Competition and Consumer Committee. Competition lawyer Fiona Crosbie has been a partner at Allens for 15 years. In January 2017, she was elected Chairman of Allens; the first woman to lead the firm. Crosbie has been involved in a number of high-profile competition cases, including
How did you end up specialising in competition?
I started as a commercial litigator and moved on to working on disputes with regulators. But once I started doing competition work, I just loved it. I enjoy the advocacy and the need to do a deep dive into markets, plus there is often a policy overlay and the stakes are usually high. It’s a very interesting specialty. In the last few years I have been fortunate to have a nice balance between working on headline cases and more ongoing strategic work. Does your background in competition help in today’s competitive legal market? Yes, I think so. Competition lawyers understand how markets operate. We bring a strong commercial outlook and see the world through a “competition law” lens. There has been concern that company mergers, which seem to be on the increase, hinder innovation. Any thoughts? I don’t see that mergers and acquisitions necessarily stymie innovation, it all depends case by case. Large organisations are often best placed to innovate – they have the capacity, resources and incentive to try new things. You recently said, “We lawyers need to reflect the community we serve.” Do you think Australia’s law industry does? I think we have a way to go. But many in the profession
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mind your ethics
Q&AWITH PAULMONAGHAN , SENIOR ETHICS SOLICITOR
Q: What should bemy top priority for April? A: Start planning your CPD year.
ethics CPD sessions all over the State. We thoroughly enjoyed meeting our fellow practitioners from so many di erent practice types, experiences and points of view (particularly on the grey areas of ethics). What we are always reminded of, as we do these sessions, is that: 1. The Conduct Rules are and must be the same for all of us; 2. There are countless di erent fact scenarios for which we need the skill to apply our ethical obligations; 3. Being collegiate and courteous to our colleagues is vital for our ethical standards. In short, do your ethics hour early in the year and remember it is not a tick-box exercise. Ethics are what bind our profession and make it an honourable one.
No, this is not an April Fool’s joke. The problem for solicitors in April is that 31 March and the end of the next CPD year seem so far away. And as with all distant deadlines, we can put it o for another day and yet another … there is always a more pressing deadline. Solicitors have an obligation is to do 10 units, of which four must cover the compulsories of ethics and professional responsibility, practice management and business skills, professional skills, and substantive law. The full requirements are set out on the Law Society website www.lawsociety.com.au/CPDrequirements . At the Society’s Ethics Department, we are recovering after a hectic February and March tour throughout NSW to provide
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ACCESSTOJUSTICE LAWCOUNCIL NEWJUSTICE PROJECT
ANNEMOWBRAY Appointed to Director Acorn Lawyers, Wollongong
PETERWILLIAMSON Appointed to Director, Property & Family Law Acorn Lawyers, Wollongong
The LawCouncil has announced it is conducting a comprehensive national review into the impediments to justice in Australia, focusing on those facing significant social and economic disadvantage in the community. The Justice Project will uncover systemic flaws and ensure the path towards equal access to justice is clearly mapped out. It will report its findings by the end of November. A steering committee of eminent Australians, chaired by the Hon Robert French AC, former Chief Justice of the High Court, will oversee the project. “Access to justice is a bedrock principle for our society and a means of protecting, promoting and defending the rule of law and human rights of all people,” said the President of the Law Council of Australia, Fiona McLeod SC. “It is a core tenet of our modern democracy, yet unfortunately there are many who are missing out. “A person’s formal right to justice and equal treatment before the law is of no value if he or she cannot effectively access the legal system or secure protection of basic rights. “Whether it is the pressures upon court resourcing and long backlogs, lack of access to legal advice or representation, or laws and practices that compound unfairness, the inequity experienced can have a devastating impact upon their lives.” The project is seeking submissions and wil involve consultation with individuals and organisations with on-the-ground experience and focus on case studies that illuminate the key impediments and solutions. lawcouncil.asn.au
SARAHHOLMES Appointed to Associate, Family Law Acorn Lawyers, Wollongong
ALANPRASAD Joined as a Partner Nexus Law Group, Sydney
MICHAELHOLMES Appointed as a Consulting Principal Nexus Law Group, Sydney
GIAGHAZI Appointed as a
Consulting Principal Nexus Law Group, Sydney
SIMONCRADDOCK Joined as Senior Legal Counsel Uniting Financial Services
DAVIDPERKINS Joined as a Consultant, Corporate & Commercial Law Bradfield & Scott Lawyers
MARKLINDFIELD Joined as a Partner, Corporate Insurance Lander & Rogers, Sydney
BRADSANTER Promoted to Senior Associate Indemnity Legal
LORRAINEHALL Appointed as Company Secretary
ADAMWEST Joined as a Principal, Family Law Coleman Greig Lawyers
The Law Society of New South Wales
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BY KATE ALLMAN
Forty lawyers donned rainbow-coloured clothing and took to Oxford Street to march in the 2017 Gay and Lesbian Mardi Gras parade in Sydney last month. Among them were Fiona McLeod SC, President of the Law Council of Australia, and Pauline Wright, President of the Law Society of NSW.
Lawyers getting amongst it to march for LGBTQI equality before the law; With former NRL great Ian Roberts.
“Wemarched to highlight the incredibly important role that the legal profession has to play in ensuring the legal and human rights of LGBTIQ people are protected and enforced.”
The float was organised by NSW Young Lawyers and led by its President, Emily Ryan, who was dressed in rainbow robes as Lady Justice, the Roman goddess of jurisprudence. Dancing lawyers dressed in suits, robes, wigs and rainbow accessories paraded on the rest of the float. Many carried signs celebrating the significant legal battles fought and won by LGBTQI people. “We marched to highlight the incredibly important role that the legal profession has to play in ensuring the legal and human rights of LGBTQI people are protected and enforced,” said Ryan. The float also carried a serious message, with other signs begging the question of whether marriage equality could become a reality in Australia in 2017. “Inequalities under the law do still exist,” Ryan said. “As a profession, and as humans, we must continue to strive for tangible equality for all LGBTIQ people.”
YOUNG LAWYERS PRESIDENT EMILY RYAN
LAWASIACONFERENCEHITSTOKYO Registration for the 30th LAWASIA Conference in Tokyo from 18-21 September has opened. The theme of the conference is “Big Leap through the Rule of Law: LAWASIA Legacy and Future Role”. The conference will be held at the same time as the biennial Conference of Chief Justices of Asia and the Pacific and will bring together legal practitioners from the Asia-Pacific region. Topics to be discussed include the judicial, legal training, and dispute resolution systems of each jurisdiction; international business law; international human rights issues; and other common issues from across jurisdictions within the region. For more visit lawasia.asn.au
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COURTDELAYS REFUGEELAWYERSFRANTICAS APPLICATIONDEADLINELOOMS
Lawyers at the Refugee Advice and Caseworker Service (RACS) have been working around the clock to assist asylum seekers submit their applications for protection visas, after the Federal government announced its latest crack-down on refugee applications last month. In February, the Immigration Department cut the length of time asylum seekers have to apply for protection visas from one year to just 60 days, under a new Fast Track Assessment process. Hundreds of asylum seekers were told they would lose welfare payments, bridging visas and access to health and welfare services if they didn’t urgently submit their applications for refugee protection. Acting Principal Solicitor at RACS Sarah Dale said some warning letters issued by the Department of Immigration gave asylum seekers as little as 14 days to lodge their claim before they would be permanently denied the right to claim asylum in Australia. Dale said RACS was the only legal centre in NSW assisting asylum seekers to submit applications under the new process, and has been swamped by clients in the wake of new deadlines being announced. “We currently have more than 1200 waiting for our assistance, many of whom will be required to lodge their visa application without legal assistance,” Dale said. Dale said RACS has vowed to try and meet the demand by fundraising to increase its staff numbers. To donate go to givenow.com.au/racsaustralia average number of days an adult prisoner spent on remand in 2016, up from40.2 days in 2012 16 % 47.8 PRISON POPULATION the increase in NSW adult prison population since 2014
For the full round-up of Law Society advocacy, see page 68.
NSWLegislativeCouncil inquiry intohuman trafficking The Human Rights Committee provided a submission to the NSW Legislative Council’s inquiry into human trafficking. The submission acknowledged the current Commonwealth Parliament’s Joint Committee on Law Enforcement inquiry into human trafficking, which is examining Commonwealth law enforcement responses to human trafficking, including sl Consultationonproposed reforms to strengthen buildingfire safety The Property Law and Environmental Planning and Development Committees provided a submission to the Department of Planning and Environment in response to the draft Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 and Commentary on proposed reforms to strengthen building fire safety issued by the department. Native Title Legislation Amendment (Indigenous Land UseAgreements) Bill 2017 The Indigenous Issues Committee provided a submission to the Law Council of Australia in relation to the inquiry into the Native Title Legislation Amendment (Indigenous Land Use Agreements) Bill 2017. The Bill amends the Native Title Act 1993 (Cth) to resolve the uncertainty created by the Full Federal Court decision in McGlade v Native Title Registrar & Ors  FCAFC 10 ( McGlade ), regarding Indigenous Land Use Area Agreements (Area Agreements).
Source: NSW Bureau of Crime Statistics and Research
On 16 March 2017 pursuant to s.327(2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council reappointed Richard Gerard Flynn, Solicitor, as manager of the law practice known Mark Flynn & Associates for a period of three years. On 16 March 2017 pursuant to s.327(2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Nerida Ann Johnston, Solicitor, as manager of the law practice known Fidelity Legal for a period of two years.
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Cross-examination Test your legal knowledge ...
Local Council vGod A Tasmanian couple who owemore than $9,000 in unpaid property rates will be evicted from land they claimbelongs to God, so that the local council can sell the land and recoup the rates debt. According to Nine News, when Meander Valley Council urged owners Rembertus and Fanny Beerepoot (yes, these are real names) to pay outstanding rates for three properties they own in Tasmania, the couple suggested council take the matter up with God. “You are asking us to bow down to a false god which is something we cannot do,” the Beerepoots wrote in a recent letter to council. Mayor Craig Perkins said the council had repeatedly tried to negotiate with the couple. However, the Beerepoots made their belief clear that the land belonged to the heavenly father and that it was therefore a matter between council and God. In March, the council voted to forcibly sell the land in order to recover unpaid rates that date back to 2010. The Age reported that the officers had just finished taking part in an annual counter-terror training exercise in Port Phillip Bay, when they took the rigid hull inflatable boat they had been using out to famous surf spot called Quarantines or “Quarras” at Port Phillip Heads. One of the officers, a Water Police sergeant, was a former police and emergency services games surfing champion. It just so happened that his impromptu surf trip coincided with the first major east coast swell to hit Australia in 2017. Although the two men were believed to have been off-duty at the time, a Victoria Police spokeswoman said the officers had been disciplined. She did not specify how. Surf’s up forwayward cops Two Victorian police officers pushed the limits of a $650,000 counter-terrorism boat to breaking point – literally –when they allegedly borrowed the vessel to go surfing at a remote break near Point Nepean last month. Democrats in Texas have proposed satirical legislation that would penalisemen for masturbating in an attempt to highlight the absurdity of President Trump’s anti-abortion laws that place restrictions on women. NBC News reported that Democratic State Representative Jessica Farrar filed House Bill 4260 last month. The bill proposed a US$100 fine for male masturbation and would require men to undergo rectal examinations for elective vasectomies, as well as wait out a 24-hour cooling off period before they can buy Viagra. Farrar said a fine for masturbation might deter men from wasting semen that should be used to create human life, in the vein of the “pro-life” argument used to support anti-abortion laws. She also said that if a woman had to wait 24 hours before she could have an abortion, under HB 4260 a man would have to wait 24 hours to obtain erectile dysfunction drugs or undergo a vasectomy. Farrar admitted that she didn’t expect the satirical bill to pass through the Republican and male-dominated US Parliament. USDemocrats respond to anti-abortion laws
1. Do judges of the High Court of Australia wear wigs? 2. Which NSW District Court judge is affectionately referred to as “Judge Judy” by litigation lawyers? 3. Some barristers in NSW carry blue robe bags and some carry red bags. What is the significance of each? 5. What do you call a law clerk to a judge in NSW? 6. What type of civil trials in NSW commonly involve a jury? 7. Where was the first sitting of the High Court in Australia? 8. How many years of post- admission legal experience must a lawyer in NSW gain before they can start their own firm? 9. How many life sentences did former Sydney nurse Roger Dean receive from the NSW Supreme Court in February for murdering 11 elderly residents in a fire he lit at a nursing home? 10. In Victoria, how old do you have to be to gain a probationary driver’s licence? 4. False imprisonment is a criminal felony in NSW, not a tort. True or false?
Answers on page 65.
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Briefs FUTURE OF LAW
Gary Ulman, determined that it would be appropriate for solicitors of NSW to have their own forum for engagement and discussion, to address issues unique to our jurisdiction and investigate whether and to what extent trends identified elsewhere were discernible in NSW. This was the basis for the Law Society’s own investigation, the Future of Law and Innovation in the Profession Commission of Inquiry. The commission format was inspired by the public inquiry conducted by the American Bar Association, the Commission on the Future of Legal Services. On 21 January 2016, the Law Society Council passed a resolution that formally established FLIP. The future committee In March 2016, a committee was formed to lead the FLIP Commission of Inquiry. Chaired by Gary Ulman, then Law Society President, the committee met for the first time in April 2016. Its members were recruited from various parts of the legal services sector. It includes a legal technology specialist, a non-judicial representative of the Supreme Court of NSW, an operations and change manager, general counsel, a university academic, the Australian Human Rights Commissioner, country and city solicitors, members of the Law Society Council and a policy lawyer as executive member. Commission format The flip Commission convened twice each month from May to November and on each occasion the commission panel was constituted by members of the committee. The commission was chaired by Gary Ulman and the session on 20 May 2016 was chaired by Pauline Wright, who has now succeeded Ulman as the Law Society President. The composition of the commission panel on any given occasion depended on the areas of expertise and interest of individual
Are you ready for flip?
On 28 March, the Law Society of NSW launched its long-awaited flip report – a 106-page document outlining the findings and recommendations emerging from the year-long commission of inquiry into the future of law and innovation in the profession. The report provides a comprehensive view of how technology is impacting the legal profession and makes clear that lawyers can no longer ignore the trends that are shaping legal practice. In this brief extract from the report, LANA NADJ outlines why flip was necessary, the methodology behind it, and the key recommendations going forward.
I n 2016, the world watched as citizens elected Donald Trump to be their President. In part, the decisions reflected an immense public distrust of existing institutions, a hostility that had evidently been growing over time. Over the same period, the peer-to- peer sharing economy was continuing to flourish. This form of trade builds on trust and transparency. These powerful contradictions spilled into all areas of life. In late 2015, the Council of the Law Society of NSW saw acceleration in the pace of change affecting the legal profession across NSW. It was clear that there were many opportunities and new problems to analyse and act upon. Flip was established to grasp the big picture, and assess its implications. For the Law Society to provide leadership, it had to ensure it was properly informed of the range of activities being undertaken apparently immutable institutions unravelled. British citizens defied expectations to vote for Brexit. US
right now. The trends apparent in late 2015 were various. Large firms were investing more in technology development and buying equity in start- ups. General counsel asked panel law firms to report on their inclusivity and diversity. They were applying metrics to better cost and resource legal matters. In 2016, the pace of change continued to accelerate. Citizens sought cheap solutions to their legal needs over the internet. When these didn’t meet expectations, some but not all turned to solicitors for help. The first end-to-end paperless conveyance in Australia was concluded in NSW. Solicitors debated what algorithms could mean for the rule of law and legal chatbots came online. Blockchain also found its way into the vernacular. Professional associations around the world have conducted outstanding, comprehensive legal “futures” work. That work has informed this project. However, in 2015, the President-Elect,
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