LSJ – April 2018

ISSUE 43 APRIL 2018

Celebrate your sisters Kirstin Ferguson on what inspired the #CelebratingWomen Twitter campaign Swallowing a bitter pill Is the criminalisation of drugs doing more harm than good? Just beneath the surface A day in the life of a lawyer dealing with clients battling stress disorders Shifting judicial discretion The NSW Court of Appeal reins in generous family provision decisions

Anewangle onageing Why age discrimination could be closer than you think

PLUS: CAREERS, HEALTH, WELLBEING, COSTS, EMPLOYMENT, PROPERTY & MORE

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Contents

30 28

36

Features

28 Hot topic

40 The war on drugs

52 Extracurricular

Journalist Cindy Wockner explains why she is campaigning to outlaw the death penalty

Kate Allman reports on the e ectiveness of criminal law in controlling drug use

Meet the top-ranked female fencing champion in Australia, who also happens to be a lawyer

30 Cover story

46 Careers

54 Health

Age discrimination is one of the most common forms of discrimination. Lynn Elsey reports on why no one’s talking about it

Conflict in the o ce? Why it can be a good thing, according to business coach Peter Agnew

You’ve heard of IQ and EQ, but what about BQ? Thea O’Connor explains why body intelligence is important

48 A day in the life

58 Travel

36 #CelebratingWomen

Jane Southward meets Sydney personal injury lawyer John Cox, who specialises in representing clients su ering PTSD

Ute Junker o ers her tips for a visit to Launceston, Tasmania, and reviews an exclusive lakeside retreat

Meet company director and ABC board member Kirstin Ferguson, the woman behind a viral campaign

ISSUE 43 I APRIL 2018 I LSJ 3

48

58

74

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove

68 Advocacy

80 Costs

The Law Society’s policy experts bring you up to date with the latest in law reform

The LSJ costs experts grapple with the complexities of the Legal Profession Uniform Law

71 Family provision

82 Corporate

A look back at the Court of Appeal’s restrained approach to family provision in 2017

The role for lawyers in navigating the safe harbour for small- to medium-sized enterprises

23 Expert witless 23 The LSJ quiz 24 Out and about 26 In focus 44 Careers 50 Doing business 51 Career coach 64 Lifestyle 106 Avid for scandal

74 Animal law

84 Mediation

The winner of the NSW Young Lawyers National Animal Law Essay Competition explores the moral scope of legal personality

Misrepresentation and ethics in mediation - why it’s wise to play fair

86 Interpreting

What lawyers need to know about the complex role of the court interpreter

76 Employment

88 Risk

Unfit for work? The Fair Work Commission will decide

Lawcover looks at issue waiver and when this privilege can be lost

78 Property

90 Case notes

The time for mandated eConveyancing is nigh. Our expert explains how to prepare

HCA, FCA, Criminal, Family, Wills & Estates and Commercial law

4 LSJ I ISSUE 43 I APRIL 2018

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A word from the editor

e average age of a Law Society member is 42. Which is quite young, right? Maybe not as young as we thought. Lynn Elsey’s cover story on page 30, “An age-old issue”, reveals some remarkable facts about age discrimination in Australian workplaces. One such fact is that some employers have been found to start discriminating against potential employees on the basis of “old age” from the age of 45. While

ISSN 2203-8906

Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer

this may seem absurd, it is no joke – age discrimination is a very real issue in Australia, including in law firms. Elsey’s story is an essential read for both employers and employees. If you have experienced age discrimination, we would love to hear from you (journal@lawsociety.com.au). e NSW Attorney-General has written for LSJ this month (“Digital assets and law reform”, page 26), raising the daunting issue of what happens – and who has access – to our digital assets once we kick the proverbial bucket. I imagine that most people don’t have all their usernames and passwords mapped out in an easy-to- find document (maybe in the cloud) for their next-of-kin in the event of a series of unfortunate events. I certainly don’t. And the thought of getting my ducks in a row in this regard is completely daunting. Do you agree? It might be a good time to write to the Law Reform Commission.

Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2018 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 specific written permission of the Law Society of New South Wales. Opinions are not the official 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 Chaffey

Contributors

MARK SPEAKMAN In focus p26 NSW Attorney-General Mark Speakman writes about why he has called upon the Law Reform Commission to asses whether a legal framework for accessing digital assets is needed. Solicitors are encouraged to join the debate.

CINDYWOCKNER Hot topic p28 In an extract from her new book, The Pastor and the Painter, journalist Cindy Wockner reflects on what she saw in the final days of Myuran Sukumaran and Andrew Chan, and argues why the death penalty should be abolished.

THEA O’CONNOR Health p54 Our health coach explains BQ, the latest health buzzword. Thea argues why it’s more important than ever to listen to your body’s cues to boost your health and emotional intelligence, and o ers some tips to get you moving.

GREGCHANNELL Property p78 Greg Channell is an eConveyancing consultant and a member of the Law Society’s Property Law Committee. He explains how to prepare for the next stage of mandated eConveyancing and why you should act now.

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ISSUE43 APRIL 2018

ISSUE43 APRIL2018

Celebrateyoursisters KirstenFergusononwhat inspired the #CelebratingWomenTwittercampaign Swallowingabitterpill Is thecriminalisationofdrugs doingmoreharm thangood? Justbeneaththesurface Aday in the lifeofa lawyerdealing withclientsbattling stressdisorders Shifting judicialdiscretion TheNSWCourtofAppeal reins in generous familyprovisiondecisions

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

Anewangle onageing Whyagediscriminationcouldbecloser thanyou think

PLUS: CAREERS,HEALTH,WELLBEING,COSTS,EMPLOYMENT,PROPERTY&MORE

Cover design: Alys Martin

FINALVERSION_LSJ04_Cover_April_Issue 44.indd 1

22/03/2018 1:06PM

NEXT ISSUE: 1 MAY 2018

6 LSJ I ISSUE 43 I APRIL 2018

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ISSUE 43 I APRIL 2018 I LSJ 7

President’s message

T his year we celebrate the first 100 years of women in law. I am proud of what the Law Society has achieved in terms of gender diversity. Women make up more than half of our governing Council – 12 of a total 21 councillors. Our Immediate Past President, Senior Vice President and Treasurer are women. Women also occupy 22 of the total 33 management positions at the Law Society. More broadly, women comprise just over half, or 16,238 out of 31,946 solicitors in NSW. Many serve the judiciary or hold leadership positions in firms and other organisations. These remarkable practitioners are, for new entrants to the profession (most of whom are female), strong mentors and role models. The overall figures, however, betray continued underlying inequalities. Women remain under-represented in leadership roles, and they still face a wages gap, unconscious bias in hiring, a lack of workplace flexibility, and limited career opportunities. Men still dominate private practice and hold most senior positions. Men comprise about 70 per cent of partnership and principal roles at law firms. Much work has been done in recent years to improve diversity in the judiciary, where women make up just 37 per cent. There is still much to be achieved. Workplace culture continues to be a key factor hindering women’s advancement. Many leave private practice to pursue a path in the corporate and government sectors, where women outnumber men. Those in private practice can learn much from the enduring ability of companies and the public sector to retain women. The Law Society’s Advancement of Women project, which began in 2011, recognises that although women are reaching parity with men in terms of numbers, they still face barriers in career progression and pay inequality. Combatting these challenges is the driving motivation behind the Law Society’s Charter for the Advancement of Women, as well as our mentoring programs and equitable briefing networking events. As we mark the first 100 years since the Women’s Legal Status Act 1918 (NSW) was passed to allow women to practise law, we must remember that this remarkable achievement was won by decades of lobbying. It should not take another 100 years to reach true gender equality.

Doug Humphreys OAM

8 LSJ I ISSUE 43 I APRIL 2018

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Yes siree, it’s a raging debate ...

ISSUE42 MARCH2018

A debate has broken out on Twitter about whether addressing correspondence to “Dear Sirs” is acceptable in this day and age. Here’s what you missed … This is a pet peeve. When “Colleagues” is sitting right there as a perfectly acceptable option there is no excuse for “Dear Sirs”. Andrew Tiedt “Dear Partners”, or, shocking thought, find out the name of the person you’re writing to. Christa Ludlow Yeah, the 1800s called. It wants its style guide returned. @KateOnTheGo I would like to ask “Sir” for a reference to support his assertion, just to see the era it comes from. Dr Daya Sharma I refuse to sign letters addressed to “Dear Sirs”. If you don’t know the name of the person you’re writing to, call and ask. Katie Miller

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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.

I read the initial rant in the LSJ and laughed so hard. I agree with the sentiment of this response (although it could have been expressed more eloquently). I’ll keep using “dear sirs” until I cease practice (and I’m female and not (yet) a total dinosaur!). Nell McGill I find informal modes of address refreshing and, by contrast, stu y, formulated forms of address boring and outmoded. We no longer use “Ye” and “yea”. Using “Dear Sirs” when knowingly addressing women does not make sense. John Morhall Oh Lord. The world moves on. Thinking that “Dear Sirs” these days should be accepted as a generic salutation for males and females is simply antediluvian thinking. Hopelessly outta touch. @ICBubbleGum “Dear Sirs” is so old fashioned it is just a reminder that women are where they used not to be allowed. I love it, it’s adorable. Every time I read it I am like yyyeah boi. Kate Doherty I prefer the gender neutral “Sup homies” in my professional comms. Dizzy Pete We could just use “Dear Madams” then, if we need an all-encompassing address. Bea Watson

The writer does not go far enough. Business communications should NOT be by email. They should be dictated, typed by one’s secretary, signed by hand and sent by registered post. Email a scanned copy if you must, but ensure it’s marked “courtesy copy” only. Wen H. Wu The letter reflects a deeper problem. I note that a well- used and popular document system sold to law firms has Sirs/Madam as its embedded default salutation. Christine Smyth, Former President of the Queensland Law Society missed male cranky pants (who thinks he is entitled to dictate how the profession should be addressing each other). Moronic. Out of touch. Irrelevant. Probably in a leadership role. *goes to find hard copy LSJ * Kate Bartlett Yours faithfully, signed: a soon to be irrelevant and won’t be I think that the time for stando sh communication has culturally passed. Etiquette follows what makes people feel most comfortable. Rigid formality is presently used by robots. A more informal and personalised response shows that you are a human and should mostly be preferred. Adrian Cartland

E: letters@lawsociety.com.au

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

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

I don’t object to letters that begin with “Dear

CONGRATULATIONS! Graeme Hearl has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

Madams” as I understand that this is a gender-neutral term that applies to both businesswomen and male businesswomen. @screw_dog

Last roar of a dinosaur? @geebeeWA

Yean, nah. Damien Smith

Mankind certainly is used to describe people in general but I cavil with the notion “sir” is commonly used to refer to men and women. By cavil I mean I am aggrieved. Bonus points for also having a crack at the (female) correspondent’s apparent youth. A winning combo. Michaela Whitbourn

10 LSJ I ISSUE 43 I APRIL 2018

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You never know who’s listening I recently had occasion to travel by train from Town Hall to Gordon on a Friday afternoon. As it was a “no client day”, I was casually dressed, so my appearance gave no clue to my profession. The carriage I was in was reasonably crowded and I was standing in the foyer trying to do a crossword, oblivious to everything that was going on around me (like virtually all of the other commuters). My solitude was broken, however, by the extremely animated conversation in which the young lady standing next to me was engaged on her mobile telephone. Given the content of the conversation I could overhear (I had no choice, given she was literally standing next to me and speaking very loudly with excellent articulation), it was clear she was a solicitor and was involved in a highly contentious commercial matter currently before the courts. She appeared to be speaking to her client. Between Town Hall and North Sydney where she alighted from the train, I was able to ascertain, without any di culty given the volume at which she was speaking: Her assessment of the talents and limitations of the counsel who was briefed in the matter, even though he apparently did not practise regularly in the jurisdiction. Fortunately for him (given she named him; although, fortunately for me, I cannot remember his name), his talents apparently far exceeded his limitations; The strong points of her client’s case; and the expected weaknesses in her opponent’s case. While I have had the misfortune to hear a number of similar conversations in the past while on the train, I think this is the first time I have had such an explicit breakdown of the matter.

That said, I can only hope for the young lady’s client (not to mention her own future legal career), I was the only person hearing the conversation who understood what was going on and that neither the other party nor their legal representatives were a orded the same access to her client’s case as I was. Contrary to whatever stereotype people may have of lawyers, I suspect many of us still use public transport to get to and from work. Hence, a train is the last place anybody should listening. I am not sure if this is a common experience for other members, but it may be timely for us all to remember there is no such thing as a private discussion or a private telephone call on public transport. Graeme Hearl, Delaney Lawyers, Sydney An excellent article The article by Darryl Browne “Avoiding elder financial abuse” (Feb LSJ , page 79) is an excellent one and I would like to provide it to clients as an explanation for why we have to be so fastidious, take so much time, and charge what to many clients is an exorbitant amount for a minor activity. Roger Butler OAM, Solicitor, Moree A di cult story to tell Thank you so much for your touching words and well wishes in the current issue of LSJ . I really appreciate you allowing me to share my story and message with your readers (Feb LSJ , ‘Crushing waves’, page 28). It’s not easy to write a personal piece in a professional journal which is read by all of my colleagues, but I’m very grateful to Jane Southward for making the task so simple. With thanks and best wishes to you both. Lillian Leigh be conducting business. You never know who is

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ISSUE 43 I APRIL 2018 I LSJ 11

Pragmatism not Band-Aids

Why review theWolf? I was disturbed to see LSJ provide free publicity to Jordan Belfort and his book Way of the Wolf, without giving proper balance to the darker side of a convicted fraudster. The facts are Mr Belfort, a former stockbroker, defrauded more than 1,500 investors, a total sum more than $100 million. He was sentenced to four years in 2004 but was released in April 2006. He had been ordered to pay restitution of $100 million to his victims, but according to court documents, as of 2013 he had paid just $11 million. In 2014, 60 Minutes interviewed Belfort and characterised his life as one of “deceit, depravity and drugs.” The same program interviewed investors who had lost various sums of money from Belfort and had received minimal restitution. One investor lost $250,000 and received just $8,000. Former friend and now private investigator Bo Dietl stated that Belfort “understands about one thing, greed”. In 2015, 60 Minutes showed how Belfort was involved in a training scam against the Queensland Department of Education. The program stated that Belfort was coaching sales people to exploit a $300 million training scheme. As someone who appreciates LSJ articles, can I suggest that book reviews focus less on seeking advice from convicted fraudsters who continue to profit at others’ expense, and more on people seeking to ethically, legally and responsibly use their skills to bring about better outcomes for all. Stewart Mills, Balmain Nothing like dog therapy Please pass on my congratulations and thanks to those responsible for the uplifting and heartwarming cover of the February LSJ . It is on the wall of my office now. Great therapy. Michael Shephard, Shephard & Shephard Solicitors

Hold fire on the criticism I write as a practitioner of 45 years’ service and a Family Law Specialist since 1994. In a report in the Sydney Morning Herald of 13 December 2017 of Justice Robert Benjamin’s judgment in a matter, he was seriously criticising the profession over costs and correspondence. Most of us endeavour to serve our clients in family law in the best way possible and as cost-effectively as possible. This is not assisted by judicial decisions to adjourn matters and to allow in much material at a very late stage of the proceedings, thus extending time and cost. Nor is it assisted by closing down the court for two hours to have a welcoming ceremony for a new judge without advising any of the counsel/ solicitors who were to appear in the list at that time. Whilst appreciating the great volume of work for judicial officers, there is often a lack of judicial wisdom on these issues and I merely ask at this time, when there is so much media attention on our jurisdiction, that one of the considerations is to develop a policy among those who sit on our benches of not criticising the profession in such a manner, but saving that for private communication. After all, are we not all members of the same club? Eleanor Murphy, Eleanor Murphy & Company Solicitors, Bondi Junction More practice management, please I review each issue of LSJ cover to cover. It is undoubtedly a very professionally-produced publication, and there is always some great content of real interest in the very wide- ranging topics. The special “Wellness” issue (Feb LSJ ) caused me to reflect on a few ironies. Can any reader recall an issue of LSJ in the past few years that has not featured one or more photos of attendees at Law Society

functions with an alcoholic beverage in hand? Let’s see if in future issues the alcohol in “Out and About” can be deleted, not by photoshopping but by serving non-alcoholic refreshments at Law Society functions as a practical wellness leadership initiative. (NB I enjoy a drink as much as many others in the legal profession!) Congratulations to our new President, Doug Humphreys OAM. Readers will recall that Doug’s first President’s Message outlined his focus on mental illness in the profession, and challenges to viability of practice and the stress these can cause. I reviewed the 100-plus pages of the February LSJ a second time looking for material on practice management … without success. Ironic, I feel, that practice management and business skills are areas of some mandatory CPD every year, but the LSJ cannot find space for related material and hasn’t done for some years as far as I can recollect or determine by online search. Perhaps impressive size, some practical material on establishing and maintaining practice viability can be introduced? Even if the sections on dressing for success and travel have to go, I for one will feel that’s a reasonable compromise, especially if the content on diet and exercise (and dogs) remains! Let’s see some down-to-earth material on budgeting, pricing, practical marketing, time management, and ensuring productivity of key resources. Kept simple and short, such content will make its own small contribution to lawyer wellness, especially in the vast majority of NSW practices – the small ones. Rob Knowsley, O’Connell NSW in future issues, without increasing LSJ ’s already-

The President’s message in Monday Briefs of 12 February 2018 (which repeats a theme emanating from the spokespersons for the Law Society of New South Wales) in using the expression such as “justice-specific targets” implies that, inter alia, incarceration rates are the result of bias on the part of the judiciary against Indigenous people and is an insult to our judiciary (both magistrates and judges). As I recall it from the media, a South Australian magistrate was roundly berated for making the statement in or to the effect: “The reason they are in gaol is because they commit the crimes.” If you were to take any group of people who were school aged but not compelled to attend school; and/or out of school but unemployed or not otherwise gainfully occupied and tell that group of people that they were victims; not responsible for their own actions; not subject to the law; safe from punishment under even their ancient tribal laws, you are likely to have the same situation as is the subject of the present clamour to “close the gap”. The Aboriginal elders whom I know complain that government actions have undermined family and destroyed parental authority. Our Moree identity, Dick Estens AO, has achieved tremendous success with the Aboriginal Employment Strategy Ltd, and to work with the employees and beneficiaries of the strategy is to be surrounded by people with pride and motivation who are positive members of society. Our Council would be better advised doing something pragmatic such as encouraging education and employment: address the cause of the problem, not try and put a Band-Aid over the outcome. Roger Butler OAM, Solicitor, Moree

Oh so precious We are becoming a little

precious. Dear oh dear, life has suddenly become clearer or is it more complicated? All

12 LSJ I ISSUE 43 I APRIL 2018

those years ago when, as an articled clerk (relic) being paid £3 a week, I was bullied and taken advantage of in more ways than one by female stenographers (they typed, took short hand) who were paid five times what I was paid to produce the occasional letter. Oh the imbalance! Oh that Malcolm had been around then to save my body and soul from such rapacious females and lectured them that o ce romance (was it called that?) was not on. It would have assisted me passing exams somewhat quicker without the distraction. But I survived. Malcolm, you have arrived too late for me. Stephen Cutler, Cutlers the Law Firm, The Entrance Parentingmatters I understand there is a proposal to implement a scheme for a panel to decide parenting matters without lawyers, to replace the current

adversarial approach. If the proposal is implemented the result will be far more equal time orders being made, as it is the easiest option for the panel. I anticipate a backlash from women’s groups when this unintended consequence occurs. I expect a significant number of fathers in Australia will see far more of their children, and property settlements will approach an equal division of assets. If this scheme is implemented we will see the results within six months. Has anyone actually thought this through before being so enthusiastic about the proposed legislation? Brendan Manning, Manning Lawyers Pty Ltd Why just one lunch? You very kindly o er lunch for four at the Law Society dining room for your “favourite” letter. It’s my recollection that, on

whose letter was the only one published; fair enough. However, when there are numerous letters, as for example, in the February and March LSJ s, why not o er two lunches for two to spread the cheer? This is not sour grapes (I’m a former grateful recipient), but merely a suggestion to “reward” more than one letter writer for his/ her e orts, rather than simply choose a favourite. Why not o er a second lunch for the shortest letter published, if only to encourage brevity (often lacking in published letters)? At least its choice objective choice of favourite. Edward Loong, Milsons Point Somany annoyances! Yes, Helen MacKenzie (March LSJ , Mailbag), I am with you on the general annoyingness of young people and the horrors of faux intimacy in would be self evident, in contrast with your less

email correspondence. Things which annoy older people like us should be rooted out and destroyed. Nor should we have to learn to spell non-Anglo-Saxon names or even really tricky Scottish ones like “Colquhoun”. Better to call them all “Sir”! And as D Melekok assumes in her March 2018 letter to the editor, language is immutable and yet those politically correct types keep trying to change it! Another annoyance! I’m a woman lawyer and my own boss. If someone writes to me as “Dear Sir” I don’t think someone is trying to make my life easier; I think someone is making a gender- specific assumption. And if they still do it in response to my correspondence to them, I think, “Someone lacks attention to detail”. I always find that an encouraging quality in an opponent. Sue Bowrey, Bowrey Lawyers Chippendale

one occasion, lunch was actually won by a writer

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ISSUE 43 I APRIL 2018 I LSJ 13

Briefs NEWS

LawCouncil says state of justice is dire

BY KATE ALLMAN

The President of the Law Council of Australia handed down a scathing analysis of the state of Australia’s legal system at the National Press Club in Canberra last month. In the first speech the Law Council has given at the club in 15 years, President Morry Bailes claimed that Australia’s legal system had become too expensive for many Australians to access justice. He said the legal assistance sector and courts needed an immediate injection of $390 million “as a minimum” to get back on their feet and to serve Australians in need. “Our longstanding reputation as a fair, open-hearted and prosperous country with a strong legal system has distracted us from an uncomfortable truth: the growing numbers of people unable to access justice who are excluded from that system and thus from equality before the law,” said Bailes. Bailes and Immediate Past-President Fiona McLeod addressed a live audience at the Press Club, as well as a large number of online viewers who watched a live stream, for the first “Justice State of the Nation” address by the Law Council. They released a progress report and three early recommendations from the Justice Project – a review of the state of access to justice in Australia overseen by former High Court Chief Justice Robert French. These recommendations included the need for a whole-of- government approach to reform, introduction of justice impact tests for government policies, and a major boost in funding for legal assistance and the courts. “During the Justice Project I heard stories that moved and stunned me,” said McLeod. “Australia needs a plan. The Justice Project will provide us with a roadmap.” Data from the National Association of Community Legal Centres (NACLC) in 2017 showed that Australia’s community legal centres were turning away more than 160,000 people every year due to a lack of resources. These centres provide free legal help to the most vulnerable and disadvantaged groups in Australia, with the 2017 NACLC Census showing 15.3 per cent of community legal centre clients identified as Aboriginal or Torres Strait Islanders and 26.6 per cent had a disability. Bailes said that as the gap between rich and poor widened, growing numbers of Australians were being caught in the “missing middle”, unable to afford lawyers but unable to qualify for legal aid. “These are the ordinary working people who cannot

Centre: National Press Club Chair Sabra Lane with Law Council Immediate Past President Fiona McLeod (left) and President Morry Bailes.

afford legal representation for everyday legal concerns such as commercial matters, family law, injury compensation,” said Bailes. “Those in the ‘missing middle’ . . . fall through the cracks in our justice system.” His comments follow the release of the Household Financial Comfort Report in 2017 which found job insecurity, cuts in wages and underemployment were putting Australian households under increasing strain. While many wealthy households were experiencing income gains, 41 per cent of households earning less than $40,000 reported income losses, the report said. Bailes made an impassioned plea for the government to introduce reforms that would help to correct the “catastrophic over-incarceration of Aboriginal and Torres Strait Islander peoples”. The Australian Bureau of Statistics reported last year that this group was the most incarcerated people on earth by percentage of population (2,346 per 100,000). “We need to tackle the many contributing factors such as the state of bail and parole conditions, mandatory sentencing laws, and the failure to institute early intervention strategies and address intergenerational trauma,” said Bailes. “The work of the Law Council is now more important than ever. We must bring our strongest and most measured arguments to the table to defend the rule of law.” You can read the full speeches at lawcouncil.asn.au/media/ speeches/national-press-club-address-justice-state-of-the- nation

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NEWS

NEWTHISMONTH Call for submissions The Australian Law Reform Commission (ALRC) is calling for submissions regarding its recently released Issues Paper, as part of its review of the Family Law System. e Issues Paper is the first consultation document of the review, the first independent review of the family law system since the inception of the Family Law Act 1975 . During the intervening years there have been many changes to Australian society and families, which suggests a need for reform. resolution of family disputes as quickly and cost-effectively as possible, keeping in mind the safety and wellbeing of all involved, especially children. It also seeks commentary on whether reform is needed to the substantive law governing decisions about parenting and property disputes. e ALRC invites submissions to the 47 questions and analysis in the Issues Paper, which can be found on the ALRC website at alrc.gov.au/publications. Additionally, anyone with recent experience with the family law system is invited to share their story, anonymously, with the Commission through the “Tell Us Your Story” portal at alrc.gov.au/ content/tell-us-your-story Updated Law Society website The Law Society has launched a new website to give members better access Issues under discussion include considering how to encourage the

Influencers

by

Catherine Tanna

ENERGYAUSTRALIA’S MANAGING DIRECTOR AND MEMBER OF THE RESERVE BANK BOARD. Tanna announced on International Women’s Day 2018 that women at EnergyAustralia will be paid the same as male colleagues for doing the same job. We’re bridging that gap. But I’m sorry that it’s taken so long and that our women at EnergyAustralia have had to wait for this day. We’re not claiming to be any kind of hero here.

to information and advice and help themmore easily renew practising certificates and Law Society membership. e site is the result of months of work from teams working in the regulation and communications areas of the Society. Visit lawsociety.com.au to see the results of the project.

ISSUE 43 I APRIL 2018 I LSJ 15

Briefs NEWS

RIANA STEYN sixminuteswith

CHIEF EXECUTIVE OFFICER, BARTIER PERRY

Your firm has a strong connection to young law students at Western Sydney University and offers scholarships. What’s the value of this to your team? Our involvement with the scholarship program illustrates our culture beautifully. Not only are we partnering with a valued client, we are also assisting young people who deserve additional support on their professional journey. This is pretty special. We have been fortunate that the majority of these talented scholars have joined our team and are making valuable contributions to us and our clients. Few law firms have women CEOs. Can you explain this? Gender diversity at senior levels remains a challenge. This is not limited to the legal industry. It follows that when CEO

Riana Steyn held senior executive management roles in South Africa and Australia for PwC, Investec Private Bank and Kemp Strang Lawyers before joining Bartier Perry as CEO in December. Steyn holds a BA (Hons) degree in languages and a Master of Business Leadership (MBL) and says the business of law has always interested her. She moved here from South Africa 11 years ago when her husband was transferred. By JANE SOUTHWARD When you started as CEO of Bartier Perry, the press release said the firm’s board had agreed “without hesitation” for you to work flexible hours. Can you explain? Working hours in my view are academic – you do what you need to do to deliver quality

and timely outcomes. The technology at Bartier Perry is a great enabler for this kind of mobility. My official office hours are from 8am to 4pm daily. My husband and I both hold demanding roles and his requires frequent overseas travel. We have two young, busy boys and they are our priority. The challenge is to balance our professional and personal lives – flexible working goes a long way in achieving this.

positions become available the majority of candidates will be male. This becomes the “easy” choice. It is imperative for all businesses to do more to develop talented females to ensure we have a larger talent pool to choose from, and more diverse

thinking at the leadership table. We need to look at our processes, systems and symbols – are these

assisting or hindering us in improving our ability to attract, retain and develop diverse candidates. Mentors are also

What’s the best way for people to request flexible working arrangements? And the worst? The worst way to request flexible working is for it to be one-sided, such as a sole consideration of your needs and desires without a well considered plan as to how the impact on your team, clients and the business can be reduced or managed. Being inflexible and unwilling to reach a middle- ground will be detrimental to your request. It needs to be a win-win.

key, and I’ve been fortunate to have

Sally Herman, a very experienced business woman, as my

coach and mentor. Sally is a director of the Suncorp Group, and holds various other

directorships.

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NEWS

BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR

Q: I work in family law and find it di cult sometimes to deal with the high emotions of my clients. What are my ethical obligations? A: Issues in family law are among the most common inquiries we receive in the Law Society’s ethics team. Try this checklist to prevent any erosion of professional standards. Stay courteous: e ethics rules require solicitors to be “honest and courteous in all dealings in the course of legal practice”. It is an unwanted practice that some solicitors consider empathy with their client may be expressed through “tough tactics and personalisation” of the legal issues in a family law matter. Such undesirable conduct does nothing more than inflame a situation and can add unnecessary time and cost to any matter. Maurice Blackburn is Australia’s leading employment lawfirm. Our employment lawdivision, led by Josh Bornstein, has an unparalleled track record across a range of legal issues impacting employees. Our teamhave the experience, expertise and discretion to find the right resolution for your client. A recommendation they’ll remember.

Act promptly: It should be carefully noted that, especially in an emotional and hostile jurisdiction, true professional solicitors adhere to the ethical requirements of “delivering legal services competently, diligently and as promptly as reasonably possible, and ... avoid any compromise to their integrity and professional independence”. Use your judgment: It must be emphasised that solicitors “must not act as the mere mouthpiece of the client ... and must exercise the forensic judgments called for during the case independently”. ese threads of professional standards, solicitors’ rules and their application by prudent practitioners will always result in a better outcome for the client and the manner in which a matter advances.

“Our teamhas an outstanding record of achieving terrific outcomes for employees in both the private and public sector. We assist our clients with a combination of strategy, tenacity and compassion.”

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ISSUE 43 I APRIL 2018 I LSJ 17

Briefs NEWS

Stuart Green Joined as Principal Davies Collison Cave

SamBerry Appointed as Partner DVM Law

Martyn Tier Joined as Consultant Project Lawyers

Rola Farah Joined as Senior Associate Project Lawyers

Pierrette Khoury Joined as Special Counsel Project Lawyers

Leigh Davidson Joined as Principal Solicitor Advantage Legal Pty Ltd

Ana Jaglic Joined as Principal Solicitor Advantage Legal Pty Ltd

TomYeoman Promoted to Senior Associate Chambers Russell Lawyers

Pascal Kasimba Joined as Group Governance O cer HBF Health Limited

Nick Leon Joined as Senior Associate Bartier Perry

Julian Sefton Appointed as General Counsel and Company Secretary NSW Ports

Sharon Levy Joined as Senior Associate Bartier Perry

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

Your membership website just got better With new pages tailored for your area of law, a clean and uncluttered design, intuitive navigation and improved search functionality that directs you to the information most relevant to you, the new Law Society of NSW website gives you the tools you need so you can get on with the business of law. LAW SOCIETY NEW WEBSITE

LAUNCHING APRIL 2018

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NEWS

newcastle mediation services

EQUITY Women call for immediate action on pay gap

Newcastle Mediation Services specialises in dispute resolution; • Claims brought for damages for personal injury • Commercial matters (contracts, partnerships, shareholdings, etc) • Claims relating to property damage • Professional negligence and claims for loss and damage • Offices and mediation rooms located in Bolton Street, Newcastle. • Services available throughout NSW. • Jeffrey Thomas is a solicitor of the

Amid celebrations for International Women’s Day (IWD) in law firms around the state, the Sydney o ce of Baker McKenzie hosted the launch of the “2018 Press for (Immediate) Progress” report by publisher Women’s Agenda on 13 March. e report, a play on words of the 2018 IWD #PressForProgress campaign, offered a snapshot of the inequality women still face at work despite recent efforts to bridge the gaps. “ e impatience is real,” said Women’s Agenda editorial director Angela Priestley. “Not enough is being done to push for real change.” e report found that Australia’s national gender pay gap is 15.3 per cent in 2018 and that this translates to an average $251.20 less per week in earnings for women. e report also tabled a 2016 analysis by Australian National University’s Centre for Social Research and Methods, showing that women barristers experienced the highest pay gap of all occupations. e report did note that the rate of women in the partnerships of major law firms is (slowly) improving, with the Australian Financial Review ’s June 2017 survey finding women account for 25.5 per cent of such positions. But men still hold the vast majority of leadership positions on boards in Australia’s leading companies, and there are more CEOs named “Andrew” than there are females in the ASX 200. “We need to continue influencing across a range of areas to achieve the cultural change needed in corporate Australia,” noted Elizabeth Proust AO, Chairman of the Australian Institute of Company Directors, in the report.

Supreme Court of New South Wales and the High Court of Australia and a retired Director of a state-wide practice (offices located in Newcastle and Sydney).

Jeffrey Thomas - Director

P: (02) 4910 4038 | M: 0407 109 155 Suite 402, 17 Bolton Street, NEWCASTLE NSW 2300 newcastlemediationservices.com.au

Angela Priestley, Women’s Agenda .

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Briefs NEWS

ADVOCACY PIAC pursues action against CommBank

CELEBRATION Haunting self-portrait claims lawfirmart award

The Public Interest Advocacy Centre is taking legal action to help people who are blind or have low vision with their banking. The Commonwealth Bank

is facing disability discrimination cases in relation to their touchscreen “Albert” EFTPOS machines after two consumers launched matters in the Federal Circuit Court, represented by PIAC, with the support of the Grata Fund. The consumers, Graeme Innes and Nadia Mattiazzo, who are both blind, say people who are blind or have low vision are unable to use the Albert machines because they have a touch screen rather than a tactile keypad. It has been reported that there are more than 88,000 Albert machines in operation across Australia. The bank has continued to roll out the machines despite the concerns of blindness advocates and individuals. PIAC client Nadia Mattiazzo said she had decided to take legal action as a last resort. “We have been raising these issues since 2016 and so far the Commonwealth Bank has failed to act,” said Mattiazzo. “The 350,000 Australians who are blind or have low vision should not be left out when new technology is introduced. “These machines seriously limit where I am able to shop and eat out. I am not willing to divulge my PIN to complete strangers and I would be in breach of my contract with the bank if I were to do so. I have no choice but to avoid businesses that use them.” PIAC Chief Executive Officer Jonathon Hunyor (pictured above) said consumers shouldn’t have to take legal action to ensure accessibility issues are properly considered when new technology is introduced. “New technology offers opportunities for inclusion and has the potential to transform lives,” Hunyor said. “We should not accept bad design that leaves people behind. Big corporations like the Commonwealth Bank need to demonstrate their commitment to our community by ensuring their products and services are accessible to all.”

Law firmClyde & Co awarded its annual art prize to Sydney College of the Arts graduate Wendy Ma in February. Ma’s Unofficial Self-Portrait was a photographic self-portrait of the artist, with stark lighting and shadows of Chinese characters looming over the face, indicating her Asian heritage. The work was praised by judges as “an outstanding and polished piece of photographic work of very high quality”. Ma received a cash prize as well as pro bono legal advice from Clyde & Co to assist in her commercial art career. Her artwork, and those of other award participants, is on display at the Clyde & Co Sydney office and is available for purchase via auction. Visit artawards.clydeco.com for more.

The Law Society of NSW is running two charity arts initiatives, Just Art and Just Music, in 2018. For more information, visit lawsociety.com.au/ president

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