LSJ_April_2021

Letters fromKuching Inside the WWII POW camps where legal education was a saviour Tough on soft skills Why finding strength in human traits is key in a COVID world Reality delivered How Australia’s gig economy is falling foul of the law Out with the old? An analysis of the Federal Government’s JobMaker scheme

ISSUE 76 APRIL 2021

Is it time for legal reformof this centuries-old practice? Dishing the dirt

on pork barrelling

PLUS: UPDATES ON COSTS, EMPLOYME NT, CONSTITUTIONAL, FAMILY & MORE ...

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Contents

24

42 50

Features

24 Hot topic

38 Learning law at war

50 Extracurricular

Kate Allman explores how the price of convenience comes at a cost to the rights of food delivery riders

The secret history of Australian soldiers studying law inside a WWII Prisoner of War camp

Lawyer, elite skier and Army Reserve captain Lizzy Lambert is always looking for a challenge

26 Lunchwith

42 Softening our skills

52 Smarter screen time

NSW Customer Service boss Emma Hogan tells Amy Dale how her agency shone in the time of COVID

Our human qualities are an increasingly valuable asset in practice, writes Angela Tufvesson

It’s not all doom and Zoom with these tips on how to enjoy some guilt-free screen time

32 Cover story

48 Mindset

56 Travel

Has the public’s patience with politicians and pork barrelling finally expired? Amy Dale investigates

Why learned behaviour could be holding us back from a happier and more successful adulthood

From foodie delights to the stunning scenery, Ute Junker finds plenty of highs in Huon Valley

ISSUE 76 I APRIL 2021 I LSJ 3

56

84

Regulars

Legal updates

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

66 Advocacy

78 Elder law& Property

A round-up of the latest developments in advocacy and law reform

Retirement village contracts under review after new laws passed

80 Superannuation

68 Costs & FLIP

The ‘how to’ of contesting a super fund’s rejection of a disability claim

How to future-proof your firm with alternative fee agreements

23 Expert witless 23 The LSJ quiz 46 Career matters 48 Mindset 49 Career coach 52 Health

82 Ethics & Family law Lessons in dealing with diŽcult practitioners 83 Property & Family law

70 Employment

Expert consideration of the complex new JobMaker Hiring Credit Scheme

Dealing with unrepresented parties in electronic property settlements

72 Employment

Ready to roll up your sleeve? The vaccination roll-out is coming

84 Constitutional law

74 Employment

A fascinating look at the High Court’s ruling on Clive Palmer’s WA border challenge

An examination of the UK Supreme Court’s landmark Uber decision & the potential implications for Australia

56 Destination guide 62 Books and lifestyle 64 The case that changedme

86 Case notes

Expert reporting and analysis of the latest the High Court, Federal Court, NSW Court of Appeal, NSW Court of Criminal Appeal, Family Court and elder law and succession judgments

77 Risk

NSWCA confirms solicitors do not owe a ‘penumbral duty’ to provide advice beyond the retainer

76 Library additions 106 Avid for scandal

I also look forward to my Law Society Journal arriving in the mail and in particular reading articles that push me to think about how our profession can strive to be kinder, more inclusive and more accessible.” have the opportunity to connect with so many other talented people in our profession. “I am really pleased to be part of the Law Society and

Mary Konstantopoulos , Senior Regulatory Adviser, nbn™ Australia (Member since 2013)

Find out more about your member benefits: lawsociety.com.au/membership

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A word from the editor

It’s been an interesting and somewhat exhausting month watching the frenetic goings-on in Canberra. Each day seems to deliver yet another jaw-dropping scenario that raises legitimate questions about ac- ceptable behaviour at Parliament House. is month’s cover story on page 32 delves into the legalities of one such behaviour which has, for centuries, been a norm of politics: pork barrelling.

ISSN 2203-8906

Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Acting Advertising Sales Account Manager Laura Gamio 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 © 2021 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the oŽcial opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

So normal is it that both parties openly acknowledge it happens – because it’s perfectly legal. Amy Dale takes an intriguing look into the practice and asks the question: is it time for the law to intervene to ensure this can’t happen, or is it a valid, legitimate way of securing votes? If you’re tired of politics, Tony Cunneen’s foray into a little-known aspect of legal history is welcome relief. As you will read on page 38, for numerous POWs caught up in WWII camps, the opportunity to study law via smuggled legal texts and legally-quali ed comrades was a critical dis- traction from their daily horrors. Tony brings to life a suite of letters from Australian soldiers relaying their experiences of building or maintaining their legal knowledge in the hope they would one day be able to use it on home soil. It’s an inspiring and suprisingly humorous glimpse of what true resilience, hardship and hope looks like. Enjoy!

Claire Cha ey

Contributors

Larissa Andelman Employment p74 Larissa is a barrister in 153 Phillip Barristers, Here, she examines the recent landmark UK Supreme Court Uber decision and its relevance to a string of upcoming High Court appeals here in Australia.

Rosemary Workman Risk p77 Rosemary is a Senior Claims Solicitor at Lawcover. She and YPOL Lawyers Director Dougal Langusch examine a NSWCA decision confirming solicitors do not owe a ‘penumbral duty’ to give advice beyond the retainer. NSW

Tony Cunneen Feature p38

Amy Dale Cover story p32

27,100 * *AUDITED MARCH 2019 DISTRIBUTION

Tony teaches at St Pius X College in Chatswood and has written extensively on the history of the legal profession. In this issue, he reveals the stories of Australian soldiers operating a law school inside a WWII Prisoner of War camp.

Amy is a journalist at LSJ. She previously

worked as a government social policy and media adviser, as a court reporter and author, and has a Masters of Criminology. This month, she asks if it is time for legal reform of pork barrelling.

Letters fromKuching Inside the WWII POW camps where legal education was a saviour Tough on soft skills Why finding strength in human traits is key in a COVID world Reality delivered How Australia’s gig economy is falling foul of the law Out with the old? An analysis of the Federal Government’s JobMaker scheme

ISSUE 76 APRIL 2021

ISSUE 76 APRIL 2021

Is it time for legal reformof this centuries-old practice? Dishing the dirt

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

on pork barrelling

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6 LSJ I ISSUE 76 I APRIL 2021

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ISSUE 76 I APRIL 2021 I LSJ 7

President’s message

A s a law society, we aim to lead, encour- age, and provide our members with the best possible resources to achieve genuine change. is includes our signi cant work relating to the Advancement of Women project, which has been ongoing for the better part of a decade. Recently, I had the honour of launching the Law So- ciety’s refreshed Charter of the Advancement of Wom- en in the Legal Profession, which has been updated to include an acknowledgment of women with disabilities, and new provisions preventing sexual harassment and bullying in the workplace. Our original Charter, rst launched in 2016, was designed to promote and support strategies to retain women in the legal profession over the course of their careers and encourage their career progression into se- nior executive and management positions. Ultimately, it is up to law rms and legal practices to interpret and adopt the updated Charter in a way that makes sense for their areas of practice. However, the rst step is to become a signatory to the Charter – which is why I plan to write to all NSW law rms and legal practices who are yet to sign the Charter, and en- courage them to do so. In the meantime, you can read all about the relaunch of the Charter in Kate Allman’s article on page 14 of this issue, and you can nd the Charter and guidelines on our website. I am also pleased to report, after the COVID-19- induced disruptions to the Law Society’s Future of Law and Innovation in the Legal Profession (FLIP) program

last year, our FLIP Roadshows and annual FLIP Conference are locked in for 2021. e FLIP Roadshows will be held in Parramatta and Orange (on 23 April and 28 May 2021 respectively), with our major FLIP Confer- ence to follow as a virtual event in October. e half-day FLIP Roadshow Program has been designed to provide you, our members, with low-cost, innovative and sustainable solutions to improve your practice. It will pro- vide a combination of presentations and facilitated workshops on issues including the future of legal fees, legal service delivery in a digital world, cyber and claims risks, and practical innovations to improve your practice and profession. I am looking forward to attending these roadshows, which are being staged in collaboration with the Parramatta & District and the Central Western Regional law societies. You can register now via the Law Society’s events portal at lawsociety.com.au/events

Juliana Warner , President, Law Society of NSW

8 LSJ I ISSUE 76 I APRIL 2021

NOW AVAILABLE: LSJ ARCHIVE

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Read every issue of the Law Society Journal published since 1963, on your preferred device.

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Is NSWnowa police state? A look at how the raft of COVID-19 rules are impacting civil liberties Camaraderie and concern With the justice system turned on its head, how are lawyers coping with change? Cruisin’ for a bruisin’ How cruise ships have highlighted the complexities of international law Courting technology How well have our courts adapted to the pandemic’s forced innovation? r ou

ISSUE 66 MAY 2020

ISSUE 66 MAY 2020

2

Deflated expectations The disappointing reality for COVID-generation graduates Ready for theworst One year after Australia’s catastrophic summer, what have lawyers learnt?

Google vs government What is at stake in the trailblazing game of digital cat and mouse?

Personal Injury Commission A new era for workers compensation and motor accident matters

ISSUE 75 MARCH 2021

ISSUE 75 MARCH 2021

A volatile situation

A deep dive into howCOVID-19 is a ecting you, the profession, and the rule of law SPECIAL EDITION Lawin the time of corona

Howwill Australia’s justice systemhandle the Brereton Report?

PLUS: UPDATES ON PELL V THE QUEEN, EMPLOYMENT, CRIMINAL LAW & MORE

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23/4/20 1:43 pm

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2

Mailbag LETTERS TO THE EDITOR

to navigate around family activ- ities and my husband’s business, I proudly graduated from South- ern Cross University in 2019 – fulfilling the promise to my now elderly father. Then the pandemic hit and, like Stefani Jansen mentioned in the article, it was also kind of a big deal for my family to be present for my admission and it was such a shame to miss that opportunity. My elderly parents, along with my husband and three daughters proudly attend- ed my graduation ceremony (a promise of Gold Coast theme parks sweetened the deal), so at least I got the cap and gown, but I am not going to lie – I was sad to miss the pomp and ceremony of admission. It just wasn’t the same in my PJs, homebound in a pandemic, carried out imper- sonally via a live stream. Covid19 then made me re- consider my career projection. Exclusively working in family law, I yearned for experience in other areas. Via networking I secured work experience with a respect- ed law firm in the city and, us- ing business skills gained from running my own events and PR agency, I pitched the idea to my principal of setting up a practice in a semi-rural area where I had been living for the past 10 years, as a means to work in my cho- sen area of law, contribute my other life skills to the business, and creating a sense of commu- nity to give back. Fast forward 15 months post-graduation, nine months post-admission and 30 years since I first graduated uni- versity, and I am now working across two practices with the same principal – for the city firm where I did work experience at the end of 2020 and as a busi- ness partner and solicitor in our new little Country Law Prac- tice, where we have decided to pledge part of our fees to the local RFS. Over summer, I read Matthew McConnaughy’s book Green- lights , which was also men- tioned and reviewed in the last issue of LSJ . I can safely say that I absolutely took the green lights whenever I could, navigated the

red lights, particularly in the last 12 months, and just went for it. It is a new era in legal practice and if you are committed to taking risks and backing yourself, you can do it. Don’t let something like a little pandemic stop you – think outside the square and go for it! Martina Nicolle Hypocrites, much? Interesting to read, in the March LSJ , that the Morrison Govern- ment is considering an indepen- dent commission to investigate claims of bullying, sexual ha- rassment, corruption and other misconduct by Federal Court judges and that Attorney Gen- eral Porter sees the NSW judicial commission as “a body that’s operated in practice in a way that appears e¢cient and sen- sible”. But wait – isn’t that the same concept which Messrs Morrison and Porter are resisting in relation to Federal politicians Burning questions I read with interest the article Disaster Plan which included a quote from lawyer and long term volunteer firefighter Stuart Clark. Mr Clark, who should be congratulated for his civic duty, may be interested that in fact bushfires have declined mark- edly world-wide as NASA’s Mod- erate Resolution Imaging Spect- roradiometers (MODIS) shows (https://superforestblog.word- press.com/2020/09/16/irrefut- able-nasa-data-global-wi ld- fire-down-by-25-percent/). In Australia the tragic 2019 fires were dwarfed by previous fires in 2009 in terms of deaths and 1974 in terms of area burnt. After the 2009 bushfires the Teague Report recommended much greater hazard reduction. At the time of the Teague Report, 2010, only 0.4% of NSW’s 20 million hectares of bushfire prone land, much of this in national parks, had been subject to hazard re- duction. This rate increased to 1.4% under Premier O’Farrell but appears to have declined since. The simple fact is bushfires and their sta£? David Grinston

Deflated expectations The disappointing reality for COVID-generation graduates Ready for theworst One year after Australia’s catastrophic summer, what have lawyers learnt? Google vs government What is at stake in the trailblazing game of digital cat and mouse? Personal Injury Commission A new era for workers compensation and motor accident matters

Punching above your weight

ISSUE 75 MARCH 2021

ISSUE 75 MARCH 2021

This is just a short note of praise for the riveting interview with world champion boxer turned criminal lawyer Lovemore Ndou, which was published in this month’s Law Society Jour- nal (March). In an age of hyper- connected short messaging, where we too often ditch our moment-to-moment social opportunities for another jab at the screen, it was heart-warm- ing to read such a beautifully written piece emanating from an in-depth one-on-one inter- view. I do not know Kate Allman, but she is clearly a highly skilled wordsmith who enjoys her craft. The beauty of this interview was that I felt, as a reader, I was there in the moment, seeing and hearing what was unfolding. Congratulations on the consis- tently excellent material being produced at the LSJ . You have done brilliantly to secure two fine journalists in Kate Allman Taking the green lights I completely related to the article titled “Great Expec- tations, Deflated Outcomes” (March LSJ ) on many levels. Suf- fice to say, my legal career pro- gression has been completely unorthodox. Postponing transfer to a law degree upon attaining a BEc in 1991, a desire to travel the world and to not be the poor uni stu- dent when all my friends were working, trumped further study. I did, however, promise my Dad I’d go back one day and get my law degree. Life and career and business opportunities got in the way un- til I ended up answering phones for a small, suburban family law practice at the ripe old age of 42, seeking adult interaction after eight years as a stay-at- home mum. Recognising my potential, I was encouraged by my principal to go back and finish what I started and, after discovering distance education and Amy Dale. Arthur Stanley

A volatile situation

Howwill Australia’s justice systemhandle the Brereton Report?

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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.

E: letters@lawsociety.com.au

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

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

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

10 LSJ I ISSUE 76 I APRIL 2021

LETTERS TO THE EDITOR

are more intense and cause more damage if there is more fuel. Whether people who su er injury from bushfires because of a neglect in hazard reduction can sue is a moot point. However it is instructive that the victims of the 2011 Wivenhoe dam floods have received a massive $440 million payout because of neg- ligence by the dam managers, Seqwater (subject to appeal). Wivenhoe had been built after the 1974 floods to be used as a flood mitigator which required a large excess storage capacity. However, part of the negligence of Seqwater was the fact Wiven- hoe was being used as a drought mitigator because of climate change predictions and was full with no excess storage capacity. It would seem therefore that climate change is peripheral to any possible litigation flow- ing from bushfire injury. The more relevant factor would be hazard reduction neglect by the relevant authorities, or even more particularly, the

prevention by those authorities of hazard reduction on private land. A case in point is the case of the Sheahan family in the Reedy Creek area of Victoria. The Sheahan’s were fined $50000 for illegally clearing a firebreak around their homestead but were the only landownerswhodid not have their house burnt down in their area in the 2009 bushfires (https://www. smh.com.au/national/fined-for- illegal-clearing-family-now-feel- vindicated-20090212-85bd.html). Anthony Cox Service and service I cannot comprehend what Mick Bainbridge has endured in his life and how he must feel be- trayed by the Brereton Report. However, in Kate’s article I note with interest that Mick’s ca- reer with the Commando regi- ment is referred to as “service.” My great uncle, Septimus Kir- by Wright was “sent” to war in 1915, went ashore at Gallipoli on 25 April (I have his diary that confirms this). Having survived

that «tour», he was shipped to North Africa and after 5 x visits to a military hospital with discharges, he died of Typhus, in 1917, in Cairo. I have the tele- gram sent to his parents (my great grandparents). My father, Kirby Wright (named after his deceased un- cle) after been sent from the seminary in 1939 (he came from a poor Catholic family) Joined the Merchant Navy at Port Melbourne, war was de- clared and he became a ser- viceman with the RAN. He was deployed for active service be- tween March and August 1942 and was a gunner on a supply ship in the Battle of the Coral Sea and the Battle of Midway. He obviously survived as I would not be relating this now. How- ever, I only became aware of his service when my son did a history project when my father was an octogenarian. He could not con- firm this “service” because he’d had a stroke and could not speak. My point: there is “service”

and there is “service.” My great uncle was serving the Empire as directed by the Lord of the British Admiralty, Winston Churchill (remember the ANZACS were dispensable). My father’s service was made defending these shores. Mr Bainbridge was a paid professional whose service was a matter of his choice and his choice alone. He was a trained expert. My great uncle and fa- ther were not. The ultimate price Mr. Bain- bridge has paid is most unfortu- nate. But he was serving the Af- ghan people, just as others were serving the Vietnamese, or so it would seem, or so we are led to believe. Others would say that the Afghan and Vietnamese sov- ereignty was being threatened, just as the Turks’ sovereignty was threatened in 1915. In 1942, it was OUR sover- eignty that was being threat- ened. You see, there is service and there is service. Stephen Wright

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ISSUE 76 I APRIL 2021 I LSJ 11

Mailbag LETTERS TO THE EDITOR

Welcome to 2021, hope you’re all happy

be baulking at what looks like propaganda. For example, of the five-member panel of “experts” on this particular topic, every sin- gle one of them is an out-and-out climate change activist. There is nobody to pres- ent even a moderated, slightly diŽerent or, God forbid, opposing opinion on the matter. Imagine, if you can, receiving an invite to a panel on why compensation laws need to be much more generous, where five of five panelists were compensation lawyers and stood to benefit from the proposed changes. Moreover, they’re advertising it as “Thought Leadership” no less. The lack of self-aware- ness is verging on parody. Welcome to dys- topian 2021, I hope we’re all happy. “Ben”

I received an email from the Law Soci- ety today inviting me to attend a “Thought Leadership” event on Climate Change and saying: “Whether or not you believe it to be the most dangerous man-made threat facing humanity, the science is clear that it is already having a measurable impact on the environment.” This is literally the same as saying: “Whether or not you agree with me on this highly politicised issue, you are wrong and it clearly is a problem.” It should be obvious that there is not po- litical homogeneity in the profession, and yet I routinely receive emails from the Law Society which have an undeniable slant. One is left with the impression that the bureaucracy either doesn’t know, or doesn’t care, that half their readership will

THE RIGHT PATH IS NOT ALWAYS CLEAR Our Professional Support Unit can show the way Contact our experienced solicitors for con dential guidance on ethics, costs and regulatory compliance. lawsociety.com.au/psu

“I’m proud to call Mick Bainbridge a col- league, and most of all, a mate. Inspiring piece on so many levels, and one which hopefully opens the door to several long overdue conversations and reforms. Thanks for your ongoing service and courage Mick Bainbridge.” – Cristen Yazbeck, LinkedIn “Currently a significant number of policy failures of Defence (Inquiry) Regulations 2018 has created unfair workplace prac- tices. The Brereton report is just the tip of the iceberg but importantly supports the

argument that if the ADF seeks to become an employer of choice as stated by the former Chief of Defence Force, David Hurley in 2013, then policy reforms are needed. Decisively absent from the policy is a functional corrective action policy and reparation policy.” – Dr Kay Danes, LinkedIn “Great to have these perspectives pub- lished with some detail here, well done.” – Ginger Gibney, Twitter “Great read.” – Matthew Barnes, LinkedIn

12 LSJ I ISSUE 76 I APRIL 2021

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What goes down, must come up. I have read the cost assessor’s response concerning my question as to why are lawyers bills not increased as they have no power to do so, but the writer does not address why it appears all lawyers bills are reduced and do not remain the same as they were initially billed. I have contact- ed numerous lawyers who have had their costs assessed, and every one of them advises the cost assessor has reduced the costs. If costs assessors reduce all bills by lawyers, and the cost assessors share the same opinion as the writer to the journal, they may have an unconscious bias to the costs lawyers charge their clients. Therefore, the Law Society may need to de- velopanunconscious bias trainingprogramfor costs assessors to address this problem. There are unconscious bias programs conducted to

address the unconscious bias people of pale skin have towards people of skin darker than their own. These programs, I understand, are conducted by the government and by corpo- rations to address this problem. Therefore, it is only appropriate for an unconscious bias pro- gram to be developed for costs assessors if the Law Society finds that my assumption lawyers bills are always reduced and never remain the same is a fact rather than an assumption. I look forward to a response from the Law Society to its investigation and the pro- gram they may wish to develop to address this problem Brendan Manning

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ISSUE 76 I APRIL 2021 I LSJ 13

Briefs NEWS

#TimesUp on harassment at work: LawSociety urges firms to domore

BY KATE ALLMAN

The Law Society of NSW has called on law firms and legal practices to commit to eliminating sexual harassment, discrimination and bullying by signing up to its revised Charter for the Advancement of Women.

Law Society President Juliana Warner (pictured), who was one of the rst work- ing mothers promoted to partnership at Herbert Smith Freehills, announced the launch of a revised version of the Charter at an International Women’s Day break- fast in Sydney on Tuesday. “ e updated Charter is part of our ongoing work to address sexual harass- ment in the legal workplace and drive positive change through our policy work, advocacy and regulatory functions,” said President Warner. “ is version has more targeted and explicit women’s advancement policies that deal with not only the promotion of women in the workplace, but ensur- ing women from all backgrounds feel safe at work, have exibility if they are parents, and are not marginalised if they raise complaints about bullying or ha- rassment.” e Charter for the Advancement of Women was rst launched in 2016 as a voluntary pledge for organisations to commit to establishing strategies to re- tain women and advance them to senior executive management roles. Almost 200 organisations, including law rms, large corporates, and government departments signed up to the original Charter. e revised Charter increases its em- phasis for signatories to take a strong stance against sexual harassment and bul- lying at work, by implementing training for employees and the establishment of safe, accessible, and transparent com- plaints processes, among other recom- mendations.

issues raised by the Law Council of Aus- tralia’s National Action Plan to reduce sexual harassment in the legal profession, which was published in December. e plan noted there were several “drivers” of sexual harassment in the legal profession, including the traditionally hierarchical structure of law rms, and male-dom- inated, competitive cultures that may “turn a blind eye to the behaviour of pro table partners”. “Given the low rates of reporting of inappropriate behaviour within the pro- fession, it becomes even more important for law rm leaders to actively ensure that those with less power are support- ed to thrive. is means interrogating whether the organisation’s systems and processes are inclusive, and the Law So- ciety’s Charter for the Advancement of Women aims to provide a framework for considering these systems and processes,” Kelly said. Women have outnumbered men in the Australian legal profession since 2019, according to data from the Law Society of NSW National Pro le of the Profession. However, the underrepre- sentation of women at leadership levels – which hovers at around 30 per cent women in top-tier partnership – has long been seen as a barrier to equity and diversity. e Charter for the Advancement for Women in the Legal Profession can be downloaded online. Sign up to the Charter and view signatories by visiting: lawsociety.com.au/women

Lawyer Nicholas Stewart, a member of the Law Society’s Diversity and In- clusion Committee that put together the new Charter, said the committee hoped the changes would help to “stamp out sexual harassment and intimidation of women in the legal profession”. “Diversity and inclusion is an area which is constantly evolving, and the Committee is rmly of the view that it is important that we regularly revisit the resources which we have developed to promote greater diversity and inclusion in the profession,” Stewart said. Danielle Kelly, also a member of the Diversity and Inclusion Committee, said the redesigned Charter would address

14 LSJ I ISSUE 76 I APRIL 2021

NEWS

Influencer

NEWTHISMONTH Membership update

by

To allow the Law Society of NSW to continue to meet the needs of the profession and o er new resources and support to its members, the 2021/22 membership fees will revert to the 2019 price of $400 (excluding GST). is year, we have partnered with humm to o er an alternative payment option – allowing you to pay the fee in instalments over time. To read more and sign up before renewals open on 7 April, visit lawsociety.com.au/humm Be a mentor or mentee Applications are now open for the Law Society of NSW’s popular mentoring programs in 2021. Feedback from pre- vious years has been overwhelmingly positive with both mentors and men- tees reporting valuable personal and professional development through the power of mentoring. Mentorships are o ered for graduates, early career and women lawyers. Learn more or register at lawsociety.com.au/mentoring Staying well in the law Professor Samuel Harvey, Deputy Director and Chief Psychiatrist at the Black Dog Institute, speaks to the profession in this free, on-demand webcast as part of the Law Society’s Staying Well in the Law series. Harvey summarises research on the resilience of NSW’s emergency serices and considers ways in which the mental health of other occupational groups, including solicitors, could be better supported. lawsociety.com.au/stay-well FLIP buzzwords: data e Law Society of NSW’s FLIP buzzwords series returns for the second instalment of 2021 with a panel exploring how lawyers may use data to build client base and pro tability. Tune in on Wednesday 28 April for 1.5CPD points. Register at lawsoci- ety.com.au/ ip

Chief JusticeWill Alstergren Chief Justice of the Federal Circuit and Family Court of Australia With change comes opportunity. I ask that we work together to create a world-leading family law system – one that we can all be proud of and one that the people of Australia and future generations of Australians deserve.

ISSUE 76 I APRIL 2021 I LSJ 15

Briefs NEWS

sixminuteswith RACHEL LAUNDERS

Rachel Launders is General Counsel and Company Secretary at Nine Entertainment. She has worked with the Nine group for over 10 years, having been a key external legal adviser as a partner at Gilbert + Tobin. Launders shares her insights with FLOYD ALEXANDER-HUNT .

Tell us about your career? Varied is the word I would apply. When I graduated, I worked as a research assistant for Justice Rogers in the Supreme Court for 18 months. Afterwards, I worked on a NSW government inquiry into a home loan scheme that had gone badly. I then went to the Australian Securities & Investments Commission where I did a whole range of corporate transactions from the regulator’s point of view. at gave me a really interesting perspective on how lawyers make commercial deals happen. I then worked for Gilbert + Tobin for 16 years and became a partner in 2001. I did a diverse array of corporate and commercial work for a whole range of clients including Nine. In late 2014, Nine o ered me a position and I’ve worked there ever since. Talk us through a typical day It’s very much driven by what’s going on in the business. In any day I could be dealing with our board if we’ve got meetings or other governance issues that we need to deal with. It might be working on sports programming or corporate activity. I also manage a team of lawyers across the business and provide guidance. ere’s also a whole lot of regulatory things going on. Something I’ve been involved with is the digital platforms inquiry and their code process with the ACCC trying to get Google and Facebook to pay media businesses in Australia for the use of their content.

What do you like most about your job? My favourite aspect of the job is working with people who are passionate about what they do. From the people who make our programming to the journalists and our clients. ey are enormously passionate and it’s inspiring to be around. I also got to attend a MAFS wedding a couple of years back. It was great to see how television gets made. Just to clarify, they are not legally married in the show – they just commit to participate in the experiment. e unscrambling if they were would keep me very busy! What is something you’re proud of? In 2012, while I was working at Gilbert + Tobin, Nine was on the brink of insolvency. e business was fundamentally sound, but it had $3.2 billion dollars’ worth of debt that needed repaying. I worked really hard and closely with the Nine CEO, CFO, board members and General Counsel to restructure that debt. We were able to turn an awful situation into something which enabled Nine to be the pro table company that it is today. Do you have any advice for people seeking to follow a similar career path? I don’t think anyone would set out to follow a path as erratic as mine, but my advice for someone looking for an in-house role is to spend some time working in a law rm to re ne your skills and training. e next step is to nd a business that you feel excited by and try to nd a role within that organisation.

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NEWS

HOTEL QUARANTINE NSWOmbudsman swamped by complaints duringCOVID-19

An in ux of hundreds of complaints to the NSW Ombudsman likened hotel quarantine to criminal detention facili- ties and agged a lack of police oversight during the COVID-19 pandemic. e Ombudsman tabled a special report to state parliament at the end of March, documenting 913 complaints made to the Ombudsman between 1 January 2020 and 31 January 2021 that speci cally related to the NSW Govern- ment’s response to the pandemic. More than 500 complaints related to NSW’s police-managed hotel quarantine program. However, the Ombudsman’s limited jurisdiction meant it was legally unable to deal with complaints about po- lice o cers controlling or overseeing peo-

ple in hotel quarantine. is was despite the Ombudsman having jurisdiction to receive complaints about other agencies within the program including NSW Heath, NSW Treasury and the Depart- ment of Communities and Justice. e report notes almost 20 per cent of complaints received were “excluded com- plaints” about conduct of NSW public authorities that legislation prevents the Ombudsman from investigating. “NSW does not have a constitutional bill of rights or a human rights act. One of the few express statutory rights that people do have is the right to complain to the NSW Ombudsman if they believe the conduct of a public authority is un- lawful, unreasonable, unjust or otherwise

wrong,” Acting NSW Ombudsman Paul Miller wrote in his foreword to the report. e report recommends designating a single oversight agency during times of crisis, which would have jurisdiction to act on all external complaints related to the crisis. “Our role is to make sure that the exer- cise of state power is not only lawful and reasonable at scale, but that it is individ- ually just – we want to see that everyone receives the right services and that every- one is treated fairly,” Miller said. “One of the lessons of the current pan- demic, however, is that the current over- sight and complaint handling system will not necessarily be suited to a crisis of this nature and magnitude.”

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Briefs NEWS

COURTS Family Court issues guidance on court merger

e newly amalgamated Federal Circuit and Family Court of Australia (FCFCA) has published a statement clarifying how the court will operate under the newmerg- er. e statement assures solicitors that the courts will continue to provide ade- quate resources and specialisation in the family law jurisdiction. “ e rst core principle of the courts is: the prioritisation of the safety of chil- dren, vulnerable parties and litigants, as well as the early and ongoing identi ca- tion and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management,” Chief Justice William Alstergren wrote in the statement. Alstergren said the court would con- tinue to provide specialisation in family

merger – the Federal Circuit and Fam- ily Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 – also prescribes that the num- ber of judges in the Family Court cannot be below 25. Federal Attorney-General Christian Porter assured the courts that any retiring judges would be replaced. “ e current ... judges have an aver- age of 25 years of family law experience between them, and many are former Registrars of the Family Court, expe- rienced family law solicitors, barristers, senior counsel and senior academics,” Chief Justice Alstergren said. “All of the specialist judges of both courts will continue to sit in the new FCFCA, hearing family law cases only.”

law and would increase the number of specialist family law judges under the new structure. By August, there would be 35 specialist judges. e legislation implementing the of children, vulnerable parties and litigants, as well as the early and ongoing identi cation and appropriate handling of issues of risk.” “ e rst core principle of the courts is: the prioritisation of the safety

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

Amanda Doring Joined as Principal in Family Law Russell Kennedy Lawyers

Lee Benjamin Joined as Partner in Tax Controversy, Disputes Gadens

Kelly Gri ths Joined as Partner in Disputes Gadens

Natasha Heathcote Promoted to Managing Associate in Family Law Armstrong Legal

Ariza Arif Joined as Associate in Family Law Armstrong Legal

Sarah Rodrigues Joined as Senior Associate Armstrong Legal

Jasmina Ceic Promoted to Partner NGM Defence Lawyers & Advisors

Martyn Tier Principal Tier Property Lawyers Pty Ltd

Rola Azzi Farah Promoted to Senior Counsel Tier Property Lawyers Pty Ltd

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NEWS

MIND YOUR

BY LINDEN BARNES, SENIOR ETHICS LAWYER

Q: Who is the April Fool of a client?

A: Ourselves. at’s right. e saying goes that if we act for ourselves, we have a fool for a client and also a fool for a solicitor. Quick checklist: I didn’t do the conveyancing when I bought my home. I didn’t draft my will (or I don’t actu- ally have one – like doctors who die before their own eyes, we solicitors of- ten never get around to having a will). I had a fantastic solicitor who sorted out my family law situation. I promised to provide documents to the solicitors for the other side. If we ticked yes to all of the above,

we should go back and look at number 4. It is an undertaking. It is likely to land us in a con ict between our ob- ligations to the undertaking and our obligations to our client. To avoid that, did we give ourselves good advice on tailoring the terms so we could meet all our obligations? Perhaps putting in some element of best endeavours or rea- sonableness? We would advise a client to do that, so why not ourselves? is is where the fool part takes over. We fail to give ourselves good advice. We have, in e ect, inadvertently acted for ourselves and not given ourselves the bene t of independent advice.

Moreover, that good advice would ac- tually start not with the terms of the undertaking but whether it should be our client giving the undertaking in- stead. e matter is theirs so the under- taking should be theirs. And while we are advising them on the undertaking, contemplate whether we would have given ourselves the same advice we are giving them. Probably not. So, don’t be the April Fool and don’t act for one. PS It has been lovely to be able to meet with so many of you in the real over this last CPD season. May that continue.

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Briefs NEWS

INTERNATIONALWOMEN’S DAY Lawyers choose to challenge at sold-out IWD event

Executive leader Sam Mostyn AO has issued a challenge to workplaces to “rap- idly” increase the numbers of women in leadership during a sell-out Internation- al Women’s Day (IWD) event at the Law Society of NSW. e breakfast was the rst member event held at the Law Society of NSW headquarters in Phillip Street since an International Women’s Day event ex- actly one year earlier, just before pan- demic shutdowns. e highlight of the breakfast was an illuminating conversation between Mos- tyn and Law Society CEO Sonja Stew- art, with both women noting the timing of the event; coming one day after tens of thousands of women took to streets across Australia’s capital cities and out- side Parliament House in Canberra for the March4Justice. Mostyn noted the 2021 theme of IWD – “choose to challenge” – high- lights “the notion of still having to chal- lenge” for equality for women in leader- ship positions. “Hoping, wishing and praying for women to get into leadership positions just hasn’t worked,” Mostyn told the audience. “My challenge is we just have to work more rapidly to get women into leadership positions.” Stewart and Mostyn are the current and immediate past chairs of the board of the Goodes O’Loughlin Foundation, with Mostyn stepping down to make way for the leadership of Stewart, who is also the Law Society’s rst female and rst Indigenous CEO. A supporter of the Uluru Statement from the Heart, Mostyn said, “I want to stand with Sonja and other Indigenous people to say we can do better than we are currently doing [regarding constitu- tional recognition].” e pair also discussed how the post-pandemic economic recovery poses

“the greatest risk and the greatest oppor- tunity” to change workplace practices that will enable more women to take the helm in leadership roles. “Our women are the most educated in the world… that is an extraordinary asset that we are squandering,” Mostyn said. In discussing how to ensure IWD events are inclusive for all, Mostyn urged privileged women to understand when “[we] need to get out of the way” and

prioritise diversity. “We all have to listen,” Mostyn add- ed, emphasising it was a skill she had honed over her career spanning legal and executive positions. Finishing the conversation with some rapid- re questions, Mostyn revealed her rst stop once international borders reopen will be Tokyo and her favourite TV shows include Schitt’s Creek and Your Honor.

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NEWS

SOCIAL JUSTICE Time for human rights approach to disability: Rosemary Kayess

Disability advocate and Chair of the chair of the United Nations Commit- tee on the Rights of Persons with Dis- abilities Rosemary Kayess has called on lawyers to re ect on how society values people with disabilities in the wake of COVID-19. Speaking to more than 200 people tuned in to a virtual presentation of the Public Interest Advocacy Centre’s (PIAC) annual Social Justice Dinner, Kayess said the pandemic had high- lighted a sad reality that people with disabilities were often seen as sec- ond-class citizens. She said this had become obvious in countries that developed critical care triage systems that singled out disabil- ity groups as more “dispensable” based

on their chances of recovery from severe COVID-19. “Disability has for a long time been understood as an individual ‘de cit’, an individual problem to be ‘overcome’ or cured, or to be ‘su ered’. is con icts with the universal ideals we have of hu- manness,” she said. “ e challenge for those of us en- gaged in public policy and law is to recognise the diversity of the human condition and re ect this in our laws, policies and practice, and not through ‘special treatment’ of those outside the outdated norms.” Kayess was the keynote speaker at the annual event, which was held virtually in March to accommodate attendees from across Australia. e program was host-

ed by broadcaster, lawyer and comedian Julian Morrow and included speeches by Yvonne Weldon, Chair of the Metropoli- tan Local Aboriginal Land Council, and PIAC CEO Jonathon Hunyor. Hunyor echoed Kayess’ comments about lessons from COVID-19 and its impact on disadvantaged and marginal- ised communities. “Although we liked to say that we were ‘all in this together’, the truth was that some were more in it than others,” he said. PIAC has for many years worked to improve outcomes under the National Disability Insurance Scheme (NDIS), and in 2020 published an open letter for greater accountability and transparency in the sector.

STAYINGWELL IN THE LAW

Practical webcasts and resources to help you stay well at work and at home. FIND OUT MORE lawsociety.com.au/stay-well

TALKING DIFFERENTLY ABOUT GRIEF Tuesday 13 April • 12:30 PM – 1:30 PM

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ISSUE 76 I APRIL 2021 I LSJ 21

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