JULIAN MCMAHON ON HIS LIFE’S WORK AND HIS BATTLE TO END THE DEATH PENALTY ACOURAGEOUS FIGHT TOTHEDEATH
TELLYOURSTORY BARACK OBAMA’S FORMER LAWYER ON THE POWER OF BEING HONEST
BOLIVIANPRISONS ANDWHITE POWDER THE WILD ADVENTURES OF RUSTY YOUNG THEDARK SIDEOFHENRY LAWSON AND WHY IT’S STILL RELEVANT TODAY BUILDINGUPYOURNETWORKS A GUIDE FOR NON PARTNERS SHIFTINGTHEGOALPOSTS AGAIN THE SKILLED MIGRATION PROGRAM
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ISSUE 36 I AUGUST 2017 I LSJ 27
22 GLOBALFOCUS On the eve of an Australian tour, the former Senior Adviser to US President Barack Obama recounts her journey from law school to the White House 26 INFOCUS Two experts argue the case for using concurrent evidence in litigation 28 HOTTOPIC A former lawyer for the Aboriginal Legal Service shares heart-wrenching memories of representing youth in detention
50 ADAY INTHELIFE
Human rights barrister Julian McMahon tells Julie McCrossin about his mission to outlaw the death penalty around the
Jane Southward meets NSW Electoral Commissioner John Schmidt, a self-confessed “election junkie” working behind the scenes of NSW elections 53 EXTRACURRICULAR Lawyer-turned-tradie Kerryn Carter describes her unusual career path to Dom Rolfe 57 PSYCHE Is multi-tasking really an e cient way to work? Thea O’Connor investigates
world 36 RUSTYYOUNG The former lawyer and
bestselling author of Marching Powder shares his fascinating story with Kate Allman 40 DIVORCELAW Kerrie Davies investigates whether attitudes favouring men in divorce law have changed in the past 100 years
ISSUE 36 I AUGUST 2017 I LSJ 3
6 FROMTHEEDITOR 8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 21 EXPERTWITLESS 21 THE LSJ QUIZ 44 CAREERCOACH Danielle Benecke, an associate at Baker McKenzie 48 DOINGBUSINESS Three ways to listen better, plus Chad Penfold’s office style Fiona Craig has tips for attracting new clients 46 CAREER101
45 LIBRARYADDITIONS 54 HEALTH Why you stop chasing work/life balance 56 FITNESS Learn how training in winter is worth the warm up 58 CITYGUIDE Macau 64 LIFESTYLE Book reviews and our movie giveaway 66 NONBILLABLES Meet fencing lawyer Jason Qian 106 AVIDFORSCANDAL Nicholas Kraegen proposes how to make Australia great again
68 ADVOCACY: THE LATEST IN LAW REFORM
71 INDIGENOUS: INQUIRY INTO INCARCERATION RATES
72 ELDERABUSE: AND WILLS – A NATIONAL RESPONSE
75 MIGRATION: SKILLED VISA REFORM CONTROVERSY
78 TECHNOLOGY: SMART CONTRACTS IN AUSTRALIA
80 CRIMINAL: IMAGE-BASED SEXUAL ABUSE OFFENCES
82 RISK: SERVING ON A CLIENT’S BOARD OF DIRECTORS
84 HUMANRIGHTS: REFUGEE ASSISTANCE BLITZ
86 CRIMINAL: SECTION 32 MENTAL HEALTH PLANS
88 NATIVETITLE: LEGISLATIVE FIX FOR McGLADE DECISION
90 LITIGATION: APPLICATIONS FOR DISCOVERY FROM USA
92 CASENOTES: HCA, FCA, CRIMINAL, FAMILY & WILLS
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CPD reimagined. Coming soon...
ISSUE 36 I AUGUST 2017 I LSJ 61
A WORD FROM THE EDITOR
ere are very few Australians who would be unfamilar with the painting gracing this edition’s cover. Titled “Self-Portrait, Time is Ticking”, the oil painting is one of Bali Nine member Myuran Sukumaran’s nal works, painted during his nal days on death row in Bali in 2015. Myuran was executed by ring squad on 29 April 2015, along with friend and fellow Bali Nine member Andrew Chan. According to those who knew Myuran, he died a changed man; one who had enriched the lives of others within prison walls and
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen
who tried to make the most of his life in spite of a future without hope. As barrister and anti-death penalty campaigner Julian McMahon says in Julie McCrossin’s compelling cover story, “People of great courage: the battle to stop state-sanctioned killing”, Myuran is a perfect example of why the death penalty must be abolished – he is proof that people can change. Nothing screams this louder than his paintings. A heartfelt thanks to Myuran’s family, who generously allowed us to use the painting on the cover of the LSJ . Myuran’s extensive collection of self-portraits and paintings recently was exhibited at Campbelltown Arts Centre. e exhibition was incredibly powerful and something I re ected upon for weeks afterwards. For those who missed it, “Another Day in Paradise”, an exhibition of Myuran’s proli c works, will tour nationally in the near future, with dates and venues to be announced.
JULIE MCCROSSIN Cover story p30 Julie studied law and works as a journalist, broadcaster and facilitor. She interviews barrister Julian McMahon about the campaign to abolish the use of the death penalty and the impact of working on the Bali Nine cases.
DOMINIC ROLFE Life outside law p52 Dominic is a journalist and regular contributor to the LSJ . In his piece for Extracurricular, he meets a solicitor with a passion for woodwork. “The law isn’t so di erent,” says Kerryn Carter. “You do make things, it is tangible.”
LIZ SNELL Criminal Law p80
Liz is the Law Reform & Policy Co-ordinator
Claire is Senior Vice President & General Counsel for Brookfield Properties. She was named 2016 General Counsel of the Year. She gives an update on the charity the NSW Australian of the Year has set up as well as some exciting personal news.
at Women’s Legal Service NSW. She
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outlines the nuances of brand new o ences criminalising the recording and sharing of intimate images without consent in NSW.
NEXT ISSUE: 1 SEPTEMBER 2017
Cover image: Myuran Sukumaran “Self-Portrait, Time is
Ticking”, 25 April 2015, Oil on canvas, 100 x 80 cm. The artist’s family has granted permission for the LSJ to reproduce this artwork.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
6 LSJ I ISSUE 36 I AUGUST 2017
Legal Costs Resolutions A bespoke mediation service offering an effective and confidential solution for your costs disputes
his month we focus on the rule of law as part of our Thought Leadership program. I am excited to announce that speakers for “Bending the Rule of Law” on 24 August include NSW Police Commissioner Michael Fuller, University of NSW Professor of Law Martin Krygier, Council for Civil Liberties President Stephen Blanks, and barrister Peggy Dwyer. Their diversity of perspectives will ensure a well-rounded discussion. Defending the rule of law in the face of expanding executive powers is a significant challenge for the legal profession today. Is the rule of law being bent too far in the name of public security and safety and, if so, what can we do to prevent it from breaking? A concern often raised by members and which is reflected in the submissions of our various committees including Criminal Law, Human Rights and Indigenous Issues, is that many long-standing principles which protect our civil liberties and democratic rights are being sacrificed to broader – albeit legitimate – concerns, to ensure communities
are safeguarded from potential threats of violence. Traditional liberties including freedom of speech and association have been whittled away in favour of broader powers for the executive, police and intelligence agencies. Meanwhile, the ability of refugees to seek legal advice and recourse, while in some circumstances facing indefinite detention, has been constrained because of the offshore processing regime. These events render critical the unity of our profession, to ensure the spirit of the Magna Carta lives on. The importance of the rule of law in upholding human rights was echoed by many of the 300 delegates from Asia Pacific countries at the recent 28th Presidents of Law Associations of Asia (POLA) Summit in Colombo. I was proud to highlight the Law Society of NSW’s leadership in advocating for the rule of law and social justice as well as foster Australia’s reputation as a friendly venue for alternative dispute resolution. The hard work of our committees continues in other practice areas, including engagement with the NSWGovernment to seek legislative amendments to remedy constraints on the jurisdiction of the NSW Civil and Administrative Tribunal which resulted from the outcome of a recent case. We have also expressed ongoing concerns about CTP reform, Local and District Court resourcing, and Indigenous incarceration, as well as advocating for much-needed funding for the Family Law Courts. We also have provided comments to the Law Council of Australia concerning the draft guidance for the Notifiable Data Breaches scheme. In another submission to the NSW Law Reform Commission, we outlined concerns about proposed amendments to guardianship laws. The Law Society of NSW has launched a campaign to promote the work of the legal profession and solicitors in regional areas. This has been heavily guided by the input of the regional presidents, and we would be keen to receive feedback from local practitioners. Finally, we have had a wonderful response to our call for entries into Just Art and time for submissions has closed. The Just Art exhibition at Gauge Gallery in Glebe will run from 6 to 16 September. Entries received for Just Music are of a similarly high calibre, and the deadline for entries has been extended to 14 August to give musicians more time to compose and prepare for a concert at City Recital Hall on 28 September. So, whether you are a Sondheim solicitor or a Led Zeppelin-loving lawyer, we want the theme “justice” resonating through your chosen musical medium.
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ISSUE 36 I AUGUST 2017 I LSJ 9
LETTERS TO THE EDITOR
ISSUE35 JULY2017 LSJ07_Cover_spine_July .indd 1
Euthanasia and the “nanny state” Human beings’ ability to interfere with the lives of their fellow human beings continues to know no boundaries. Nicholas Cowdery’s article (June LSJ ) is further confirmation. It starts at conception and ends with death. Isn’t it time that we all took a step back and allowed the natural course of our lives to unfold as our creator designed it? Mr Cowdery confirms the age of 25 years as the appropriate age to commence the intervention for the end of a human being’s life. Why? Why not 18, which is the legal age in NSW? Is there some reason that from 18 to 25 you are not capable of making a serious or life-defining decision? Also, isn’t it time that this issue should be laid to rest (sorry for the pun) as, various attempts have been made over a 25-year period and quite nobly the legislature has seen the immense complexity of promulgating legislation which our society and our fellow human beings cannot accept. Euthanasia should be called what it is – the murder of another human being. Yes, and we want it to occur not because you are in pain but because I cannot cope with seeing you in pain. The total selfishness of such an act should be understood by anyone who values all lives, including our weakest and
most frail human beings. The sick, the elderly and the disabled fulfil an extremely important role – and that is to make us generous. Without this virtue being able to flourish in our world, we will all be poorer and less human. Paddy Curran Solicitor, Enrights Maitland A slippery slope? I recently requested the opportunity to write an article for the LSJ on the issue of euthanasia. More recently, I received a copy of the latest version of the LSJ with an article on euthanasia by Mr Cowdrey AC QC. While I realise this article was designed as an overview of various legislative considerations, I do not think it went far enough to condemn euthanasia. I am actually concerned that the brevity of the article gave the unwitting reader a false impression as to the stability of euthanasia laws over the past 20 years. The reference to Dignitas in 1942 adds to this false impression. Yesterday, I finally finished a letter to Senator Dr Richard Di Natale opposing euthanasia. Today, I received Monday Briefs that included a President’s message about elder abuse. I have formed the view that the proposed laws in Victoria are based on an overseas investigation which is unlawful
for administrative law reasons. I also think it was hopeless and incompetent in the way it was carried out. In my respectful submissions, I hold that the Law Society of NSW is not contributing to the eradication of elder abuse unless it writes to the Premier of NSW to voice its opposition to euthanasia. As you will see in my submissions, I have great concern that no matter what law is introduced, legal interpretation will likely result in 100 per cent compliance not being necessary. I also do not see the enforcement of the minutia of the law as being something that society will bother itself with. Any administrative oversight body, even if it is not branch stacked with pro-euthanasia supporters like they are in Belgium, will not do much more than make meaningless recommendations and very minor monetary fines. Doctors and families will soon learn what they can get away with. I have used comparisons to other laws, such as WHS law, where any risk that is likely to cause a fatality must be eliminated, not merely controlled. Contrary to that, politicians are actually creating a risk where none exists and (badly) controlling it, not eliminating it. This is before we even consider issues of how LGBTIQ people who suffer from depression will be encouraged to commit suicide, as is the desire for
ACLOSE UP LOOKATLAWYERS SURPRISINGTRENDS INTHE2016 NATIONALPROFILEOFTHEPROFESSION
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: firstname.lastname@example.org Please note: we may not be able to publish all letters received and we edit letters we reserve the right to shorten letters we do publish.
CONGRATULATIONS! Edward Loong has won lunch for four. Please email email@example.com for instructions on how to claim your prize. Correction On p.63 of the July LSJ , a book review was attributed to Magdalene D’Silva. This attribution was incorrect. We apologise for any confusion.
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My involvement with the researchers at the Walter and Eliza Hall Institute of Medical Research has given me hope and purpose. Thanks to the wonderful research underway at the Institute, I am confident that ultimately other families will not experience the devastating loss of a loved one to cancer. I am proud to support Professor Tony Burgess and his team through the Shirley Cuff Cancer Research Foundation, in memory of my wife, Shirl. I appreciate the regular updates from the Institute and the opportunity to hear directly from the researchers about their progress. It is reassuring to know that my donations directly support leading researchers at the Walter and Eliza Hall Institute. A beacon of hope
lobbyists in Belgium and the Netherlands. I have written to those in Victoria who are responsible for implementing the Victorian Government’s LGBTI Inclusion Plan with this concern. Then there is the issue of killing infants. No doubt, when we have some legalised euthanasia, lobbyists will call for the Groningen Protocol to come to Australia – and then deny there is a “slippery slope”. I ask that you all consider what the Law Society of NSW can do to prevent euthanasia. I have taken great o ence to the setting aside of administrative law requirements to give reasons, consider proper evidence, not fetter discretion, not act under dictation and so forth. I have made plain to Senator administrative law and we must fight to preserve the esteem of and adherence to administrative law. I am hoping that politicians in Victoria and NSW will see their obligation in this regard. May I suggest that the Law Society of NSW take issue with the need for the administrative law principles, irrespective of the outcome to support or oppose euthanasia. I have already approached each member of the Di Natale that lawyers are custodians of the Parliament of Victoria’s committee to adhere to
Parliament of Victoria once with my first two written works. I have also complained to the Ombudsman for Victoria, Mrs Deborah Glass OBE. I learned that the Ombudsman did not have jurisdiction, so I am fighting again on my own. I will not let the majority of the committee get away with this. David Foletta BCME LLB GDLP JP Thank you I like the new index in the latest LSJ (June). It makes it easier to scan the update list to see which are of interest. David Grinston (July LSJ ) that “... for the first time in history there are more female lawyers than male lawyers,” you conclude, “What will the next 100 years hold?” Well, for starters, let’s hope with that seismic shift in gender balance, not to mention the surge in numbers of lawyers from di erent ethnic backgrounds, that the judiciary, especially – at all levels – then reflects both gender equality and ethnic diversity, such that the domination of white faces/ Caucasian names on the bench shall be a thing of the past, too. Edward Loong, Milson Point Time for diversity After reporting in your editor’s letter
– Research advocate and donor Jeff Cuff, pictured with cancer researcher Professor Tony Burgess
For more information please contact Ms Susanne Williamson, Head of Fundraising, on 9345 2962 or firstname.lastname@example.org www.wehi.edu.au
CANCER | IMMUNE DISORDERS | INFECTIOUS DISEASE
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LETTERS TO THE EDITOR CONTINUED
Research project on lawyer wellbeing: workingwith traumatised clients I am writing to you as I believe the Law Society of NSW, being a signatory to the Tristan Jepson Memorial Foundation, may have an interest in being involved in my research project. The project examines the impact on lawyers of working with clients and their traumatic material. It is the basis of my PhD at Gri th University, Brisbane. Your organisation represents members who may work in the capacity with clients who have been traumatised. In the interest of lawyer wellbeing, I am asking solicitors to take part in a study on the e ects of working with traumatised clients. Any interested members can email me at pat.weir@ gri thuni.edu.au for details. Patricia Weir, Menzies Health Institute and School of Applied Psychology, Gri th University Mr Justice Price The July edition of the LSJ features an interview with Mr Justice Price entitled, “Time for change”. His Honour was once a Dubbo solicitor who became a magistrate, District Court judge and Supreme Court justice. When His Honour came to Dubbo in the mid- 1970s, he was part way through
a masters degree on the theme “the Icelandic cod wars“. Apart from possibly appearing for a fisherman busted for illegally netting the Macquarie River, His Honour had no opportunity to refer to his erudite tome on public international law. The situation changed when His Honour, as a magistrate, having Federal jurisdiction, was appointed to preside over the prosecution of Japanese caught fishing in Australian waters. Fast forward to 2017 after His Honour, in the past 40 years, had accumulated vast judge and later in that post as Chief Magistrate. Then he was appointed a Supreme Court justice and now Chief Judge of the District Court. In his LSJ interview, His Honour brought to our attention the present and projected increase in the workload of the District Court. His Honour outlined the challenges caused by the increased workload and the changes needed to meet those challenges. experience as a solicitor, magistrate, District Court His Honour particularly mentioned the part he expected solicitors to play to implement his projected program of reform. “Cometh the man, cometh the moment”, to steal a phase from Oklahoma . The District Court is in the very best of hands. Peter Poulton, retired solicitor
Re: July LSJ, “Day in the life of James Horsburgh” When I heard about that accident all those years ago, in all our worry I remember thinking this is an exceptional character that will rise above and achieve great heights. I think you have still exceeded what I ever imagined. A true champion and a load of hard work I bet! Shona Ballard, Facebook Congrats Teddy on all you have achieved and all you will achieve in the future. Best wishes to your beautiful family and for the future. You are an idol and an inspiration. Take care my friend. Tim Couch, Facebook You are the most amazing person I have ever met or had the pleasure of working with. I remember meeting you that first time and to say the least I was scared, scared that I would o end you, scared I wouldn’t know how to help you, scared because I have never been around someone who has a disability like yours. But you put all our minds at ease and even made light of your disability and for that I am grateful. You certainly taught me not to only see what’s on the outside but to look past that and see what was on the inside. You are truly an inspiration and someone I am happy to call a friend ... keep up the good work. Rachel Williams, Facebook Great read mate. You are an inspirational man. Jared Fuller, Facebook What a fantastic article! You are an incredible man Teddy. Katie Peters, Facebook
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Re: July LSJ cover story, “The state of the profession” Great news! Now we need to see female representation increase at leadership level. Emma Starkey, Twitter Beware the 50:30:10 ratio through a woman’s career – leaky pipeline starts with great numbers but ends at a low. Let’s plug that leak! Rashda Rana SC I can certainly understand why small firms are growing. After years of practising in law and getting a feel for almost every kind of role in law, I purposely chose to work in a small firm closer to home rather than opt for a large firm. You come to the realisation that autonomously providing a service to members of the community, and a more healthy lifestyle are more important than status, blindly following a team in large-scale matters, extra income and pressure. Sarah Haddad, Facebook I bet there’s still a gender pay gap, or lack of women in principal positions. The institution entrusted to demonstrate equality denies it. Melody, Twitter Women make excellent lawyers. Amy Barnhouse, Twitter Yes!! We made it. Gayathri Arvind, Facebook
Y OU R P R AC T I C E
W I T H T H E L L M ( A P P L I E D L AW )
– A D E L I N E S C H I R A L L I A S S O C I AT E , W I L L I S & B OWR I N G A N D S T U D E N T, T H E C O L L E G E O F L AW L L M ( A P P L I E D L AW ) The coursework has been absolutely relevant to my daily practice. The material that was provided to us throughout the course is constantly being used throughout my practice.
ENROL ONLINE: collaw.edu.au/alp / 1300 506 402 / email@example.com N E X T S E M E S T E R C OMM E N C E S 7 AU G U S T
ISSUE 36 I AUGUST 2017 I LSJ 13
of Patrick Container Terminals, jointly owned by Brookfield & Qube. The shipping container itself may stay at the University of Juba and be repurposed as a library building. The board of the foundation includes Adut, journalist Hugh Riminton, Judith Preston (Doctor of Philosophy candidate, Macquarie University Lecturer) and Professor Michael Adams (Professor and Dean of Law at WSU). In the short to medium term, the foundation’s goal is to secure increased financial backing, most likely from individual philanthropists and corporate supporters. Adut and his partner Tammy Beveridge are expecting their first baby later this year. Adut, who was a child soldier and a refugee, remains a man of hope, as he looks toward the next chapter of his life. WANT TO HELP? To become involved in the John Mac Foundation, visit johnmacfoundation. org or contact the foundation’s chief executive officer, Nick Willetts at nick@ johnmacfoundation.org . Opportunities abound to provide financial or fundraising assistance, act as a mentor, or facilitate introductions to enable the foundation to grow. It can be as simple as organising a book drive at your workplace to help arm the children of Sudan with books, not guns. Each week, Adut’s legal practice, AC Law Group, provides approximately 30 per cent of its time working on pro bono matters. If you can support them with your own pro bono services, contact info@aclawgroup. com.au. criminal and environmental justice, by making books, scholarships and new skills available to students, lawyers, judges and educators.” “In South Sudan, the John Mac Foundation aims to support the pursuit of
Deng Adut and his partner Tammy Beveridge.
BY CLAIRE BIBBY
MAIN PHOTOGRAPH: JOEL PRATLEY
With his charity taking off and a baby on the way, the NSW Australian of the Year and Law Society President’s Medallist Deng Adut has a lot going on. Deng Thiak Adut needs little in the way of introduction. Child soldier, refugee, man of hope, lawyer, 2016 NSW Australian of the Year, brother, son, and soon-to-be father. Despite all that has been written about a man who has overcome unthinkable adversity, Adut doesn’t feel his story is an exceptional one. His charity, the John Mac Foundation, is working to provide scholarships to disadvantaged students, principally from refugee backgrounds, to help with tertiary expenses in Australia. To qualify, students must be Australian citizens or permanent residents. While still in its early days, the foundation has received more than 200 applications for the inaugural scholarship. Three students have been offered fully funded scholarships, at a cost of about $7,500 each year for three years. Armed with the first royalty cheque from the sale of his book, Songs of a War Boy , Adut has
funded these scholarships himself. His goal is to fund another two scholarships by the end of 2017. Adut’s aim is to pay back his brother, John Mac, who died in 2014, by changing the lives of at least 20 people from disadvantaged backgrounds – a target Adut has set for 2025. John Mac risked his own life to smuggle 14-year- old Deng from Africa after several years as a Sudanese child soldier. With the help of the United Nations, the boys became the third Sudanese refugee Foundation aims to support the pursuit of criminal and environmental justice, by making books, scholarships and new skills available to students, lawyers, judges and educators. At the time of writing, the first shipping container of second-hand legal texts, donated by law firms, law libraries, members of the Bar and the Judiciary, was en route to Juba in South Sudan via Mombasa in Kenya. The process has been facilitated by the work of corporate and individual volunteers for the foundation. The first 20-foot shipping container was filled at Port Botany with the support family resettled in Australia. In South Sudan, the John Mac
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NEWTHISMONTH LAWSOCIETY THOUGHT LEADERSHIP EVENT Join NSW Police Commissioner Mick Fuller, UNSW Gordon Samuels Professor of Law and Social Theory Professor Martin Krygier, President of the NSW Council for Civil Liberties Stephen Blanks and Barrister Peggy Dwyer as they discuss security, the rule of law and civil liberties, at the Law Society’s new Thought Leadership event. Law Society President Pauline Wright will facilitate the 24 August event. NSW law enforcement agencies must have appropriate powers to ensure public security and safety. It is also critical that laws granting these powers do not undermine the rule of law. NSW now has a large body of laws that encroach on essential rights and freedoms and defending the rule of law in the face of expansion of executive powers is an important challenge for the legal profession today. Is the rule of law being bent too far in the name of security and safety and what can we do to prevent it from breaking?
Justice Margaret Beazley President, Court of Appeal, Supreme Court of NSW
Thursday 24 August
5-7pm (refreshments at 5pm for a 5.30pm start) The Law Society of NSW, 170 Phillip Street, Sydney
The topic of human rights is one that should excite each and every one of us. However, it is not particularly useful to speak of rights in the abstract. All the legal rights in the world are rendered nought without a firm commitment, as a society, to the rule of law. The respect we have, as a society, for rights and liberties between ourselves as individuals and in the community more generally, is a matter of fundamental importance and something which we must jealously protect .
Barry O’Keefe Memorial Lecture at the Australian Catholic University, February 2017 .
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six minutes with
DAVID EDNEY COMMERCIAL LITIGATOR
Why did you study law? I studied law because I hoped for a career that was intellectually stimulating and offering different challenges every day. I wanted to discover my strengths in analysing problems and helping others. Being a lawyer can require a wide range of skills and unexpected challenges in one day. I am happy to say I got what I hoped for. How did you get involved with NSWYoung Lawyers and the 2017-18 LawGuide: Your Complete Guide to Careers with a LawDegree? I was fortunate to work under a fantastic partner at my first firm, who encouraged me to involve myself in NSW Young Lawyers, even letting me take a 90-minute round trip out of my day from Sutherland to the city to attend committee meetings. I loved being around other practitioners at similar levels in their careers, which kept me coming and increasing my participation, from committee member, to general delegate, to committee secretary, and now the chair of the NSW Young Lawyers Civil Litigation Committee. I was approached by the Law Society Graduate Services team about the Law Guide to help law students get a better understanding of what it means to practise as a civil litigation lawyer and how to start their career. What do graduates face in their first jobs? While the job market for graduates is by no means easy, I believe one of the greatest challenges is the widespread perception that the “true” way into the legal industry is a traditional clerkship or similar role at a large private practice firm, when, in reality, that isn’t where most graduates (or lawyers) will end up. This leads to many students and graduates simply Shire, in 2006. After taking a year off in 2011 to complete a Master of Laws at University College London, he moved into boutique commercial litigation and insolvency at Polczynski Lawyers in Sydney and, in February, joined William James Lawyers. Edney loves a good legal argument and is the Chair of the NSW Young Lawyers Civil Litigation Committee. David Edney began his career in the commercial litigation practice of MCW Lawyers, a suburban firm in the Sutherland
not appreciating the alternative pathways available to them. It’s important for students to research and talk to as many people within the industry to learn about the different opportunities out there, and not just wait until clerkships season to consider their career path. Visiting the Law Society’s students careers site, LegalVitae, would be a great start. What exactly is the LawGuide? The Law Guide is a joint publication by the Law Society and GradAustralia that aims to inform law students about the many different career paths available to them after graduation, including not only conventional private practice but in-house, public sector, academic, and even non-legal career options. It includes an excellent summary of the many different practice areas students may end up in and has great tips on what to think about each year while studying, how to prepare for interviews, look after your wellbeing, and survive your first year as a lawyer. Howwill the guide help law students? I think the Law Guide is an ideal tool to help law students broaden their horizons and see the wide variety of career paths that are now available to them within the legal profession. Students can find it online at gradaustralia.com.au/store . What’s the best thing about your job? As clichéd an answer as it is, it has to be that no two days are the same. Every case is a new challenge to be tackled, requiring you to use your full mental capabilities to research, hypothesise and formulate strategies to effectively solve problems for clients.
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Q&AWITH LINDENBARNES , ETHICS SOLICITOR
Q: I act for the happy corporate family. Are there any ethical problems with that? A: I once heard the following written advice, and I quote: “It’s a bit i y.” Questionable advice aside, it is a situation where we have to exercise caution. Whether you are an in-house solicitor or an external solicitor, you need to be sure who your clients are at any particular time. Then you need to consider whether there is an issue of multiple clients with conflicting interests (Conduct Rule 11 www.legislation.nsw.gov.au/#/view/regulation/2015/244/ part2/divrelationsw/rule.11), or an issue of former clients and ongoing obligations to them (Conduct Rule 10 legislation.nsw.gov.au/#/view/regulation/2015/244/part2/ divrelationsw/rule.10 ). The biggest problem is that the clients will see themselves as one (unless there is a question of debt and its avoidance). They often will fail to understand why you
cannot act for them all. If you add into the mix a director or shareholder who wants advice as well, it can become even more complicated. When you begin to work for a corporate family, it might be worthwhile doing a little diagram of the corporate structure. This will help you and your team clarify who your clients are, and help you explain it to your clients’ sta . Another important point for in-house solicitors is the restriction on which entities solicitors can provide advice to. Corporate practising certificates typically restrict holders to advice to the employer and its related entities (see s6 of the Legal Profession Uniform Law for the definitions legislation.nsw.gov.au/#/view/ act/2014/16a/chap1/part1.2/sec6 ). If you need further guidance on this, contact my Law Society colleagues in Regulatory Compliance on 02 9926 0115 for their expert assistance.
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ISSUE 36 I AUGUST 2017 I LSJ 17
Legal professi of ‘fundament BY KATE ALLMAN
DRTIMSMYTH Now the principal Health Sector Law
THOMASJONES Joined as Partner, Technology & Communications Bird & Bird, Sydney
ZACHARYWILSON Joined as Associate Tiyce & Lawyers
MALCOLMWOOD Joined as
Senior Associate Gilchrist Connell, Sydney
Law Society President Pauline Wright, second from right, with attendees at the “Technology and the Law” event .
CHETANSHUKLA Joined as
JOHNVOHRALIK Now in sole practice John Vohralik, Solicitor and Vohralik Mediation
Senior Associate Gilchrist Connell, Sydney
Authors Richard and David Susskind called it back in 2007 and lawyers around the world have been hastening to get their heads around it since. The legal profession is facing a period of immense upheaval, largely brought about by technology. Australian lawyers are not immune to this change and must learn to find opportunities among the challenges, a panel of experts told attendees at a Law Society of NSW event in June. Dean of UNSW law school George Williams delivered the keynote speech and emphasised the importance of teaching the next generation of lawyers the skills they will need to adapt to technological change, starting at university. “Disruption is part of the future of law,” Williams said. “This presents challenges but it also creates opportunities. Universities need to be able to produce graduates who can adapt to technology, and will be able to capitalise on those opportunities.” Law Society of NSW President Pauline Wright sat on the panel alongside legal technology experts Lyria Bennett-Moses, Lachlan McKnight and Sapna Patel. UNSW Associate Professor Michael Legg asked the speakers questions on the topic “Technology and the Law: Opportunities for the Legal Profession”. Wright welcomed the recent funding boost of $19.3 million by NSW Attorney-General Mark Speakman to upgrade technology in District and Supreme Courts across NSW. Wright said such upgrades in court technology could help improve access to justice for remote and disadvantaged communities, pointing to findings from the Law Society’s 2016 Future of Law and Innovation in the Profession (FLIP) report.
JAMES RICHARDSON Joined as Special Counsel Dimocks Family Lawyers
JOANNAELLIOTT Promoted to Principal, Family Law Macpherson Kelley, NSW
DAISYMALLETT Promoted to Partner, Dispute Resolution King & Wood Mallesons, Sydney
DANIELNATALE Promoted to Partner, Corporate Advisory Group King & Wood Mallesons, Sydney
LEAHRANIE Promoted to Partner, Taxation King & Wood Mallesons, Sydney
Promoted to Partner, Property Development King & Wood Mallesons, Sydney
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18 LSJ I ISSUE 36 I AUGUST 2017
Stephen Lancken MEDIATOR BA LLB ACCREDITED SPECIALIST COMMERCIAL LITIGATION & MEDIATION
onon thebrink al change’
• Creating constructive
conversations. Providing support for sound decision making
“Call it the Uber e ect, call it what you want – cloud technology is here to stay,” Wright said. “Being able to lodge court documents in the cloud and access information on basic legal rights online has a huge beneficial impact for people living in rural areas.” CEO and founder of ImmiAdvisor Sapna Patel told the audience how her company used technology to cut costs and increase e ciency “in every aspect of the business”. ImmiAdvisor is an online search portal that connects people applying for visas in Australia to suitable, nearby immigration lawyers. “I don’t pay an executive assistant, I have an AI [artificial intelligence] assistant,” Patel said. “Our website uses heat-map tracking software to discover where people are looking and clicking, we create content that is search engine optimised and all marketing is done online. We’re also a completely virtual o ce so any employees can take a laptop with them around the world to work.” Patel, who studied a double degree in marketing and law, said future law graduates with broad skills in digital marketing, business and technology were likely to be more attractive to employers in new business models such as ImmiAdvisor. “That is exactly why many universities like UNSW have made it compulsory for undergraduate students to study a second degree alongside law,” agreed Associate Professor at UNSW Lyria Bennett-Moses. “I just wish the universities taught more spelling and grammar,” CEO of LegalVision Lachlan McKnight said, half-jokingly. “It’s amazing how many graduates apply to work for LegalVision and make spelling mistakes in their applications. Sometimes I don’t know how they got a law degree!” Despite the recurring debate about robots taking lawyers’ jobs, Wright said she was confident that artificial intelligence could not replace human qualities of empathy and legal decision-making. “I would hate to see bail decisions being made based on computer algorithms, for example,” Wright said. “Face-to-face, human decision-making is still essential in the criminal sector. “In the civil sector, I believe clients don’t want us to be doing menial tasks like discovery, which can be automated. They want to pay for complex legal thinking that only human lawyers will be able to continue to provide.”
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ISSUE 36 I AUGUST 2017 I LSJ 19
CONGRATULATIONS LAWYERS MEET FORGLOBAL HACKATHON
For the full round-up of Law Society advocacy, see page 68.
Online Registry and the Online Court One of the key issues for the Litigation Law and Practice Committee in 2017 is to “monitor developments in relation to online courts in Australian jurisdictions and overseas”.Earlier in the year the committee sought feedback from legal practitioners on their experiences using the Online Court. Feedback received included information in relation to both the Online Court and the Online Register. The main concerns were about the registration process and the fact that notifications are only sent to the solicitor on the record and not to the contact solicitor. Based on that feedback, the committee prepared a letter to the Department of Justice setting out the feedback received. The committee has also invited the team within the Department of Justice to come and speak at a future meeting. NCAT jurisdictional issue The Litigation Law and Practice and Public Law Committees wrote to the NSW Attorney General noting the jurisdictional issue arising for NCAT as a result of the decision in Burns v Corbett; Gaynor v Burns  NSWCA 3 , which held that NCAT does not have jurisdiction to hear matters between residents of different states. The committees noted that as a result of this decision a number of parties are left without remedies that the legislature intended for them. Rural and regional courts The Rural Issues Committee wrote to the Attorney-General raising concerns about access to justice in the Cobar, Nyngan, Bourke and Brewarrina areas, due to court closures and reductions in sitting arrangements. The concern is that court closures in these areas have a disproportionate effect on the most disadvantaged in our society.
An Australian legal innovation team from Gilbert + Tobin in Sydney was awarded the prize for Best Teamwork at an international hackathon in London in July. More than 200 lawyers, students and legal coders from the UK, Europe and Australia converged on the University of Law in London on 1 and 2 July to compete in the world’s first Online Courts Hackathon. Thirty teams worked through the night to devise tools to support online courts and deliver technology improvements to justice systems. At the end of the 24-hour time limit, nine teams with the best ideas were chosen to pitch their ideas to the judges. The Gilbert + Tobin team (pictured) made the final nine for building an application dubbed “ireckon” which leveraged data analytics to predict case outcomes based on empirical evidence. Two teams from UK legal engineering firm Wavelength Law and the Law Society of England and Wales jointly took out the overall prize. The Hackathon was organised by the UK Society for Computers and Law (SCL), Legal Geek, the Judiciary of England and Wales and HM Courts & Tribunals Service.
On 20 July 2017, the Council of the Law Society of NSW resolved to terminate the following Manager appointment made on 18 May 2017: Richard Gerard Flynn as Manager of the law practice known as JP McNamara & Co. On 20 July 2017 pursuant to s.327(2) (b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, Solicitor, as manager of the law practice known as Robert Balzola & Associates (Legal) Pty Ltd for a period of two years. On 21 June 2017 pursuant to s.327(2) (b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Brenda Joy Coleman, Solicitor, as manager of the law practice known as Sheekey Williams for a period of two years. On 21 June 2017 pursuant to s.327(2) (b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Anthony Neary Walker, Solicitor, as manager of the law practice known as Samuel Jones Legal for a period of two years.
On 21 June 2017 pursuant to s.327(2) (b)(i) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as Hermann & Green for a period of two years. On 29 June 2017 pursuant to s.82(1) (d) of the Legal Profession Uniform Law (NSW), the Council of the Law Society suspends to 30 June 2017, the practising certificate of William John Grace. On 4 July 2017 pursuant to s.327(2) (b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as AJ Apps & Associates for a period of two years. On 4 July 2017 pursuant to s.327(2) (b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as L David Lock Solicitor for a period of two years.