ISSUE 47 AUGUST 2018
Grinning and baring it Why current laws around sexting are criminalising today’s youth Banishing burnout Does hitting rock bottom mean the end of your brilliant career? Reflecting on change Justice Virginia Bell on the battle for women’s legal status Criminal law reforms An analysis of sweeping changes to sentencing and committal laws The time for evolution Do lawyers really have what it takes to survive the A.I. onslaught? Googling defamation Why lawyers need to step up and evolve in a changing media landscape Ditching her demons Talitha Cummins opens up about her devastating battle with alcohol Breaking perceptions How everything we think we know about sex offenders is wrong
The sink-or-swim culture hurting our junior lawyers
Puttingbaby inacorner Why choosi g parenthood is still risky business in the legal profession
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ISSUE 47 I AUGUST 2018 I LSJ 49 Sydney • Brisbane • Melbourne • Perth • Singapore • Hong Kong • India
26 Hot topic
36 Sex offenders
Sexual assault survivor Bri Lee chats to Kate Allman about major flaws within the justice system
Denise Cullen delves into the world of sex offenders and discovers some surprises
Dom Rolfe meets Amy Pes, paralegal and rising star vocalist in Indie pop group The Quails
28 In focus
54 The power of green
Talitha Cummins discusses how letting go of shame is key for any recovering alcholic
Melissa Coade meets leading AI lawyer Chrissie Lightfoot and finds old and new ideas converge
Melissa Coade heads into the wild and discovers the power of getting back to your (tree) roots
30 Mum’s the word
48 A day in the life
Flexible work is all the rage, but what is the true state of play when it comes to parental leave?
The Founder of the First 100 Years project meets Jane Southward in London
Been pounding the pavement in running season? Kate Allman has some top recovery strategies
ISSUE 47 I AUGUST 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove
The latest developments in advocacy and law reform
Defamation law in the cyber age. An analysis of the High Court’s decision in Trkulja v Google 86 Land & Environment Court A look at recent judicial
Modern slavery & corporate accountability - a new response to an age old evil
guidance on procedure in strata renewal proceedings
73 National security
23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career coach 46 Career 101 50 Doing business 51 Library additions 58 Travel 64 Books 66 Non-billables 106 Avid for scandal
The constitutional cost of combatting espionage and foreign interference
Concurrent evidence conclaves - getting the most out of your hot tub 90 Business and transport law Getting up to speed with changes to the Heavy Vehicle National Law and the Chain of Responsibility
76 Whitlamoration Open justice and the
information democracy needs
92 Case notes
Getting in on the ‘fruits of the action’. Part two of an examination of equitable liens
A wrap-up and analysis of the latest key judgments - HCA, FCA, Family, Criminal and Wills & Estates
A recent decision emphasises the importance of a solicitor’s duty when identifying clients
4 LSJ I ISSUE 47 I AUGUST 2018
FR I DAY 1 4 S E P T EMBER 20 1 8 • SO F I T E L S Y DNE Y DARL I NG HARBOUR
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ISSUE 47 I AUGUST 2018 I LSJ 49
A word from the editor
There are quite a few heavy topics in this edition – sexual assault, alcohol abuse, sex offenders, and the rise of A.I. and its implications for the legal profession. So it’s nice to have an adorable baby on the front cover (a first for the journal, I suspect). Though the story behind it isn’t so cutesy. Kate Allman’s examination of the reality behind parental leave (“Mum’s the word”, page 30) will resonate with many.
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl
In an age where firms and employers are falling over themselves to be labelled as flexible, inclusive and progressive, it’s disheartening to walk away from Allman’s story sensing that the profession still has a way to go when it comes to genuinely achieving flexibility and equality. It will be interesting to receive your feedback and responses, and perhaps hear some more personal stories – hopefully some of them positive. It’s a pleasure to have former newsreader Talitha Cummins write for us this month (In focus, page 28) on her personal battle with alcohol dependence. Talitha’s story is well known, and one that many lawyers will relate to. Her bravery in telling it is nothing short of inspirational. Come and hear her speak at the Law Society on 30 August at the inaugural LSJ Speaker Series event. You can register here: lawsociety.com.au/talithabreakfast
Reporters Kate Allman
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2018 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 official 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.
KATE ALLMAN Cover story p30 Kate has university degrees in both journalism and law, and is a multimedia journalist at LSJ . This edition, she uncovers the often unspoken truths about taking parental leave, and examines whether reality meets expectation.
MELISSA COADE Profile p40 Melissa is a lawyer and journalist and has recently joined the LSJ team. This edition, she speaks to UK lawyer and entrepreneur Chrissie Lightfoot to delve into some emerging trends prior to her appearance at the FLIP conference in September.
MICHAEL DO ROZARIO Modern slavery p70 Along with Jack de Flamingh, Michael explores the scourge of modern slavery in Australia, and looks specifically at ethical supply chains and proposed new compliance measures for commercial entities.
HANNAH RYAN National security p73 Hannah joined the Human Rights Law Centre in October 2017. In this edition, she delves into national security reforms aimed at combatting foreign interference in Australia’s political and electoral systems.
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Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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NEXT ISSUE: 1 SEPTEMBER 2018
6 LSJ I ISSUE 47 I AUGUST 2018
THE LAW SOCIETY PROUDLY SUPPORTS THE 2018 PRESIDENT’S CHARITY THE BUTTERFLY FOUNDATION The Butterfly Foundation represents all people affected by eating disorders and negative body image. As the leading national voice for supporting their needs, the foundation highlights the realities of seeking treatment for recovery, and advocates for improved services from both government and independent sources. Find out more at thebutterflyfoundation.org.au
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President’s message T here are many regions in NSW where courts and legal services are crying out for resources. However, not all of them have a projected explosion in population from around 300,000 to 600,000 in the next 20 years. This is Macarthur, where the courts are outdated, overflowing and unsafe. The need for new facilities is even more pressing in light of recent statistics that reveal some Macarthur suburbs have among the highest domestic violence rates in the state. current backlogs in criminal and civil cases. So severe are the circumstances that the Police Association of NSW has joined the Law Society’s campaign for the rapid-build of a new multi-jurisdiction precinct in the Macarthur region. Police are frustrated at lengthy court delays that mean less time on the beat responding to and investigating crime. Even more important are those awaiting outcomes, including the victims of crime and people whose families and businesses depend on a just resolution. Of great concern is that Camden and Picton Local Courts do not have adequate security for many types of cases, including apprehended violence orders relating to family violence. This is despite an increase of around 44.9 per cent in the number of domestic violence cases in the Camden Local Government Area over the past two years, according to the Bureau of Crime Statistics and Research. While some increase can be attributed to population growth, a lack of appropriate court resources, including for security, poses serious safety concerns for victims of crime and court users. Crime prevention requires investing in infrastructure to ensure justice can be served both now and into the future. A new Macarthur court complex would provide the necessary security upgrades to keep victims, witnesses and other court users safe. A new Macarthur court complex could provide facilities for criminal matters, but also cater for an anticipated surge in family law services. Some families in Macarthur have no option other than to travel to Sydney or Parramatta because there is no Federal Circuit Court in the region. This imposes additional time costs, legal costs and travel costs. The courts across NSW must be equipped with necessary resources to administer and deliver justice. We call on the Federal and NSW governments to address the urgent need for additional court and legal assistance services by establishing a new multi-jurisdiction justice precinct in the Macarthur region. Macarthur’s three local courts – at Camden, Campbelltown and Picton – are struggling to manage
Doug Humphreys OAM
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Don't miss the legal industry's musical night of nights! Join us to celebrate justice and applaud the creativity of the NSW legal community. Proceeds from ticket sales will support the life-changing work of The Butterfly Foundation. Friday 31 August 2018, 7pm – 9.30pm City Recital Hall, Sydney Register now at lawsociety.com.au/justmusicconcert
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ISSUE 47 I AUGUST 2018 I LSJ 49
ISSUE46 JULY 2018
Time to change the rules
an application by way of cross-claim to get back what was fraudulently taken from the client by the manipulation of the system and the failure of the o cers of the Court to follow the simple rules of the Court. One would expect an immediate apology from the Court and an immediate reversal of the judgment underpinning the fraudulent manipulation. No apology or reversal came from the Court. An application to the Attorney-General for payment of fees or return of the amount, fraudulently obtained by the manipulation of the system and the failure on the part of the o cers, has been ignored. It is time that the Society committed a group of persistent members, not to the restructure of these two Courts in respect of their civil obligations but the wholesale rewriting of the rules to bring them into line with the commercial reality of 2018. I have been at the legal has changed such that the Courts, their rules and how matters are administered, remain almost as it was when I was but an articled clerk and caught the tram to work. Warren Wells, Balmain Lawyers coalface for almost 50 years and, bluntly, little exchange of contracts which owes allegiance to the partial deforestation of the Amazon! My contract told me the excessive paper created for the two counterpart contracts is an unnecessary abuse of the world’s resources. I, of course, told it to stop complaining. Last week’s contract for four folders thick of unnecessary nonsense created by the mandatory disclosure laws. We used to say “Install a Rheem.” But installing five Save our forests? I am just doing another
reams to meet the mandatory requirements is ridiculous. I have some alternative suggestions to alleviate the disempowered who have to deal with simple sale contracts in developments where there are a vast number of sub-station leases or, of course, involve neighbourhood title lots. Why not change the law to require acknowledgements that the vendor has provided emailed copies of the documents referred to in the second schedule of Certificate of Title XYZ and that the purchaser has received them? Alternatively, what about attaching a flash disk as part of the contract? Thank you Hi Claire, love what you and your team have done with LSJ – looks like I’ll be citing your articles this month in three upcoming presentations! Fay Calderone, via LinkedIn A gentle reminder Hi Claire, I read your word from the editor in the July LSJ . I am deeply sorry that you had that experience, but I think the article that Kate has written (‘Bloody terrifying: the modern graduate experience’, July LSJ ) is important and I am grateful for it. It is a good reminder to us more senior members of the profession positive. I have really enjoyed the Journal in recent times and it is a credit to you. Daniel Stoddart, Hall & Willcox LSJ lovin’ I just wanted to [say] how much I enjoy the journal. I read it literally cover to cover. about the impact we can have, both negative and Mark Squire, Boulton, Julian, Squire Solicitors
As a litigation firm requiring the civil commercial divisions of the Local and District Courts to provide relief to our clients who are owed monies, I took interest in the notification of the (Law Society’s Thought Leadership) Q&A session (on reforming the Local And District Court system in New South Wales) with a view to obtaining the contribution of practitioners to the intended restructure of the Local and District Courts. I was not put o by the fact that the committee formed to hold the session were almost exclusively from the criminal side of both courts. I was put o , however, by the fact that I was being asked to pay a fee to attend the Q&A session, to make that contribution. It is extremely di cult to advise commercial and business clients of matters involving the Local and District Courts in obtaining relief for them in what are exacerbated having regard to the fact that a substantial proportion of magistrates and judges come from a criminal background with little or no experience in commercial or business matters. It is even more di cult to explain to a client how the system of the Local Court, including the failure of o cers of that Court to follow their own rules, allowed for the fraudulent manipulation of the Court rules to provide a fraudster with substantial funds by that simple manipulation. It was even more di cult to explain to the client that when the fraudulent manipulation was brought to the notice clearly commercial and business matters. This is of the Court, the Court then required the client to go through a series of unnecessary and costly steps including, would you believe,
Grinningandbaring it Whycurrent lawsaround sexting arecriminalising today’s youth Banishingburnout Doeshitting rockbottommean theendof yourbrilliantcareer? Reflectingonchange JusticeVirginiaBellon the battle forwomen’s legal status Criminal lawreforms Ananalysisof sweepingchanges to sentencingandcommittal laws
Thesink-or-swim culturehurtingour junior lawyers
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LSJ07_Cover (V2)_JULY.indd 1
20/6/18 4:33 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
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.
CONGRATULATIONS! Justin Cahill has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
Viv Jones, Principal Associate, Eversheds Sutherland
10 LSJ I ISSUE 47 I AUGUST 2018
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Vale Rob McIlwaine The sudden passing
matters, he would oppose law enforcement o cers, and defend such o cers with equal skill and vigour before the Independent Commission Against Corruption. He made a significant contribution to the development of NSW Law having appeared in, for example, Peters v Asplund  NSWSC 1061, in which the Supreme Court held that a subpoenaed party will not be arrested for alleged non-compliance without an opportunity to address the court. To borrow a phrase from the celebrant at Rob’s service, Brett O’Brien, Rob embodied the virtues of our profession and dedication helped lift the sum of human experience. He loved problem-solving – as I walk past his old o ce, I can see him slouched low in his chair or feet up on his desk as he worked through generosity and kindness won him great respect. In my own experience, he was a generous mentor who patiently imparted the benefit of his experience. Many other solicitors and barristers benefited from his wisdom and assistance. He was an enthusiastic traveller and explored Australia with his family, Mike and Mal-style. He recently completed parts of the historic pilgrimage trail, the Camino de Santiago. Ever active, Rob su ered a fatal heart attack while cycling from Rhodes to Parramatta. Rob has embarked on another pilgrimage, leaving us without a valued colleague and friend. I speak for many when I o er our condolences to Rob’s family, particularly his young grandchildren to whom he was much devoted and often spoke of. We have lost a good bloke. Justin Cahill the intricacies of a new matter. Rob’s trademark irrepressible humour,
of Robert (Rob) McIlwaine on 20 May 2018 deprived our profession of a model solicitor and the state of a dedicated public servant. Rob was well known to many during his time at the Legal Aid Commission, the O ce of Legal Representation, the Crown Solicitor’s O ce and, lately, the O ce of General Counsel at the Department of Justice. Rob originally hailed from Rhodes in Sydney, where the McIlwaines had lived since his grandparents’ time – McIlwaine Park there is named after his forebears. He was educated at Marist Brothers Eastwood. As he completed high school, the Vietnam War dominated the public consciousness – with the ‘birthday ballots’ being broadcast on television to determine who would be called up for National Service and thus potentially deployed to Vietnam. Rob’s birthday was not drawn. He was awarded a Commonwealth scholarship to study commerce/law at the University of NSW. There, Rob was one of ‘the Originals’ – the first class at the Law School, which opened in 1971. He began his professional life at Young in a conveyancing practice, before returning to Rhodes with his young family. Rob was a great defender of the rights of the individual. He often recalled the occasions on which he dashed into court with a writ of habeas corpus. All business there would come to a sudden halt and counsel cut o mid- sentence as he announced “Your Honour, I have an application concerning the liberty of a subject!” He was a courteous, even-handed advocate. In his Legal Aid
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ISSUE 47 I AUGUST 2018 I LSJ 11
Themodern law graduate experience I was a few months into my first job and had never seen a full application being heard, having only attended court during my degree to see the equivalent of duty lists. I was sent to argue a motion against a fairly senior barrister for a bank. By myself. In the Supreme Court. I attempted to discuss the matter with the barrister who behaved terribly and started the conversation into backing down. I was somehow successful but was very lucky to have over- prepared by staying up all night to draft clear written submissions and be heard by an extremely patient and amazing judge who was incredibly generous to me by helping me clarify my submissions and reading my written material. While experiences such as those have helped me realise that I can sort out almost anything, no one should be placed in that situation. I was lucky to have been heard by someone who realised the situation I had been placed in. I’m sure my experience could have been far more scarring in another court. There should be a requirement for support at court for juniors, they are supposed to be “supervised” but all too often that doesn’t happen. Kelley Dewey, via LinkedIn Solicitor, DLS Lawyers So what if lawyers harvest claims? Has it ever occurred to anyone at the Law Society to defend lawyers rather than agree, partially agree or remain silent when the ever “truthful” media makes accusations against lawyers? The Office of the Legal Services Commission (OLSC) has thousands of complaints against lawyers every year only to have one by raising his voice to me, trying to bully me
or two found to be proven. Yet, if the “trusted” media makes a claim why do you need to immediately accept the validity of that claim by proposing to address the problem? Yes, please do something about it by defending us against the media and doing it aggressively with facts. It is what lawyers do for their clients. You can start with the OLSC statistics on complaints versus action. “Farming” is not illegal. You talk about ethics but it is a one-way street. You criticise lawyers acting like business owners operating a business for profit. Where is the reciprocal protection of our fees and areas of work? There has been systematic conduct by the government and supported by the Law Society to reduce the overall profitability of lawyers by removing exclusive areas of practice. You want us to be professional but then over regulate, remove conveyancing, cap fees, cost assessments, onerous fee disclosure and at every opportunity agreeing with anyone who had a negative opinion of lawyers. I will not apologise for earning a reasonable income from years of low pay whilst building a practice. Our clients are not know complaining had the desired effect. I anticipate in the next 10 years private legal services will be available to only the wealthy and the legally aided. Everyone else will rely on Google. Fortunately, I will have retired and be working part-time assisting a rural legal practice with my skill set. Ps. I do not practice in insurance work. Brendan Manning, Director/Principal Solicitor, Manning Lawyers simpletons who don’t understand what they are doing. They at least
“Sadly still happens. It is very confronting for the inexperienced practitioners not to mention risky for clients and principals.” – Jill Kiely, LinkedIn
“Terrifying how universal this experience actually is. Brilliant.” – Alexander Ross Davis, LinkedIn
“God - I worked for a community Aboriginal organisation. I was in court from day one, sink or swim –‘no one said it would be easy’. I struggled for three years but was not naturally or temperamentally suited to it. Didn’t go on to a career in this area.” – Janet De Castro Lopo, Facebook
“Exactly the same thing happened when I was a junior barrister 34 years ago.” – Lou Steer, Facebook
“It is one thing to write on this issue (and good on you for spreading the word thus). But it is another to convey to firms and clients that their lawyers are HUMAN. Nevertheless, it is encouraging that firms are making progress in facilitating a sound work-life balance for their lawyers.” – Ravi Nayyar, Facebook “This is very VERY true. Large firms are the main offenders and it’s seriously crushing to be pushed out of the practice of law this way. I can assure you, young lawyers ARE taking the initiative, and the enabler of this behaviour is the billable hour.” – @LawyerinBlack1, Twitter
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ISSUE 47 I AUGUST 2018 I LSJ 13
Renewed calls to #RaiseTheAge of criminal responsibility
BY KATE ALLMAN
July to address the UN Human Rights Council on behalf of Indigenous Australians who are disproportionately represented in Australian youth detention centres. “Mr President, right now, children as young as 10 are being locked away in prisons across Australia,” said Mundine, who founded the Sydney-based Inside Out Aboriginal Justice Consultancy to provide support for Indigenous youth and help them re-integrate into the community after leaving prison. “In joining this Council, the Australian Government promised to champion the rights of Indigenous peoples,” he continued. “But, for as long as Indigenous children are 25 times more likely to be imprisoned than non-Indigenous children, these will be hollow promises.” Legislation in all Australian states and territories allows children as young as 10 to be found guilty of an offence. However, each jurisdiction also has a statutory presumption that children between 10 and 14 cannot have formed the guilty intent or mens rea to commit a crime. To rebut this presumption and prove the guilt of a child under 14, prosecutors must provide clear evidence that the child was mentally developed enough to understand the impact of their criminal act. “It’s a principle known as doli incapax , where a child under the age of 14 is presumed incapable of forming the necessary intention to commit a crime,” explained Immediate Past-President of the Law Society of NSW Pauline Wright. “This presumption is rebuttable if proven beyond reasonable doubt that the child has sufficient intellectual and moral development to understand the difference between right and wrong.” The minimum age of criminal responsibility in New Zealand and the UK is 10, while children as young as six can be charged and detained in some US states. Scandinavian countries including Norway, Sweden and Finland set the minimum age of criminal responsibility higher than most, at 15 years.
Indigenous leaders and human rights organisations including Amnesty International have stepped up a campaign to raise the minimum age of criminal responsibility for children in Australia. The median age of criminal responsibility around the world is 14. However, in Australian states and territories, children as young as 10 can be locked away for criminal offences. The #RaiseTheAge hashtag was adopted widely on social media after the Northern Territory Government released its final report on the Royal Commission into the Protection and Detention of Children in March. Among 227 recommendations, the report recommended elevating the age of criminal responsibility from 10 to 12 – the absolute minimum recommended by the UN Committee on the Rights of the Child. “No child should be strip searched, hand cuffed, or locked in a prison cell,” said Director of Legal Advocacy at the Human Rights Law Centre Ruth Barson. “The Turnbull Government cannot defend human rights on the world stage while allowing primary school-aged children to be sent to prisons at home. Raising the age is a simple reform that would make a world of difference. What we need is for our governments to show some leadership.” According to the Australian Bureau of Statistics (ABS), about 600 children under 14 are locked up in Australian prisons every year. And while Indigenous Australians make up less than 3 per cent of the Australian population, the Australian Institute of Health and Welfare’s 2015 report on Youth Detention found Indigenous Australians account for 54 per cent of juvenile detainees. For children under the age of 14, the ratio of Indigenous to non-Indigenous detainees is even higher. ABS data has shown up to 70 per cent of children between the age of 10 and 14 serving sentences in youth detention are Indigenous. Indigenous advocate Keenan Mundine, a former youth detainee who spent 10 of his first 25 birthdays in prison, travelled to Geneva in
“Right now, children as young as 10 are being locked away in prisons across Australia”
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NEWTHISMONTH Future of Law and
Innovation conference Forty experts from around the world will speak at the FLIP Conference in Sydney on 14 September, the innovation event of the year that will give you the tools to survive and thrive in an ever-changing legal landscape. Visit lawsociety. com.au/flip to register. Entries nowopen for President’s medal The Law Society of NSW President’s Medal is an annual award that recognises significant personal and professional contributions to the betterment of law and justice in the community by a NSW solicitor and member of the Law Society of NSW. Past recipients of the prestigious award include John and Nicola Ellis, Deng Adut, Tony Cahill, Frere Green, and Lieutenant Commander Shannon Richards. Nominations should be made by email to firstname.lastname@example.org or by letter addressed to The President, The Law Society of New South Wales, 170 Phillip Street, Sydney or DX 362 Sydney. Government Solicitors Conference Registrations are now open for the Government Solicitors Conference on 4 September at Doltone House Hyde Park in Sydney. Hear from eminent speakers including the Hon Justice Robertson Wright, NCAT; the Hon Justice Ronald Sackville AO, the Supreme Court of NSW; Mark Robinson SC, Maurice Bryers Chambers; Alana Starke, General Counsel for DFACS; and Paolo Buchberger, Practice Director at the Crown Solicitors Office NSW. The conference will be followed by a cocktail networking event where the winners of the Government Solicitor Awards will be announced. Last year’s conference was a sell-out, so register now at lawsociety.com.au/gsc to secure your place.
Sir Laurence Street AUSTRALIAN LEGAL LEGEND
Sir Laurence was a respected jurist and the 14th Chief Justice of the Supreme Court of NSW. He passed away on 21 June 2018, aged 91.
We may lose some of our idealisms as we go on through life, but I’ve been lucky to be able to do things that have provided intense intellectual and emotional fulfilment.
ISSUE 47 I AUGUST 2018 I LSJ 15
Jane is a barrister at Level 22 Chambers practising in the areas of employment and industrial relations. She worked as a solicitor for more than 15 years, most recently as a partner at Gadens Lawyers (now Dentons). Since 2011, Jane has been at the NSW Bar, apart from two year-long stints – as Employee Relations Manager of David Jones and as a New Wales Industrial Relations Commissioner. Jane is a Senior Fellow of Melbourne University Law School and was Adjunct Lecturer in the Masters of Labour Law and Relations at Sydney University Law School. The most recent industry-specific study was in 2014 – the Law Council of Australia found that 47 per cent of women in the legal profession reported gender-based discrimination. Women also reported being discriminated against on the basis of carer responsibilities at a higher rate (27 per cent compared with 11 per cent for men). Twenty- four per cent of female respondents reported sexual harassment, compared with 8 per cent for men. While these results are based on self-reporting, it’s unacceptably high. How has the #MeToo movement shone a light on harassment and assault in the workplace? There’s no doubt that ... public awareness about sexual harassment in the workplace is at an all-time high. And it’s happened very quickly. There has been an immediate flow-on effect in Australia. Myself and colleagues who advise on and investigate complaints of sexual harassment and discrimination have experienced an increased number of inquiries for assistance. In March, Herbert Smith Freehills took the unusual step of publicly confirming it had removed one of its Australian partners after it investigated allegations against him and found sufficient evidence to conclude that the partner’s behaviour contravened the firm’s policies and values. That’s not something I can recall happening in the profession before. The upcoming AHRC National Inquiry – the first of its kind in the world – will ensure the spotlight remains on sex discrimination and harassment as a major workplace issue for at least the next 12 to 24 months. JANE SEYMOUR sixminuteswith BARRISTER How rife is sex discrimination and sexual harassment in the legal sector?
What can law firms do to make their workplaces safe from sex discrimination and sexual harassment? The public statement by Herbert Smith Freehills of its commitment to not only having, but applying, policies to address inappropriate workplace conduct is a positive step. There is a real reluctance by complainants to come forward. This is partly due to concerns about ‘career suicide’, which can only be addressed by changing an organisation’s culture. Staff need to see that if genuine issues are raised, appropriate action will be taken and those who use the firm’s processes are not victimised as a result. Complainants are also fearful about going through an investigation process. Adopting sound, prompt and confidential investigation processes enables firms to minimise the impact on all participants – complainants, witnesses and respondents. It also builds confidence that complaints will be addressed. The types of gender-based discrimination and harassment complaints I investigated 25 years ago are essentially still the same. With sexual harassment, the legal test is whether a reasonable person in the position of the alleged harasser would have anticipated the possibility their conduct was unwelcome. It places the responsibility on each individual to assess their conduct. Human relationships are not black and white, and it’s in this grey area that people sometimes come unstuck. The major change has been the role technology plays – text messages, emails, social media, photos kept and sent on phones – as a vehicle for discrimination and harassment, and as a source of evidence. In your 25 years of practice, what shifts have you seen in this area?
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BY PAUL MONAGHAN, SENIOR ETHICS LAWYER
Q: When accepting a retainer, what can I do to avoid complaints about responsible time management? A: From the initial contact with a client, be aware of the obligations upon a legal practitioner. A quick reminder-list for each le may help avoid pitfalls by noting the following issues: e acceptance of a retainer by the practitioner is on the basis of being able to “… act in the best interests of a client in any matter in which the solicitor represents the client … and be honest and courteous in all dealings in the course of legal practice ....” (Rule 4) To accept a retainer, a practitioner
will require the availability of adequate time and resources that can be devoted to a client’s matter, in order to “… deliver legal services competently, diligently and as promptly as reasonably possible….” (Rule 4) Complaints about excessive delay and failure communicate with a client are too often traced back to the formative part of the solicitor/client relationship, on how the retainer is accepted and the time the practitioner has available to address the issues of the matter. When undertaking initial screening for any matter, it is common practice to consider issues stated on a checklist that is often focused on avoiding
con icts of interest. Too often there is no consideration given to time management. e error manifests itself in the solicitor becoming overcommitted. Unexplained delays and a lack of communication will raise the ire of any client. is becomes a fertile ground for complaints. Time management should be integral in the decision to accept a retainer. To avoid this error, consideration must be given to include a time budget for every matter. ere should be a raised awareness for solicitors to ensure they have included planning for su cient time to address the interests of the client “with reasonable promptness”.
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MelissaMastronardi Now Director Mastronardi Legal
Christine Kelly Joined as Consultant, Family Law Team Barry.Nilsson.Lawyers
Bryan Do Joined as Lawyer, Family Law Team Barry.Nilsson.Lawyers
McKenzieMoore Promoted to Special Counsel, Dispute Resolution Piper Alderman, Sydney
MatthewMennilli, Promoted to Senior Associate, Dispute Resolution Piper Alderman, Sydney
Bree Staines Promoted to Senior Associate, Family Law Armstrong Legal
Daniela Faggionato Promoted to Special Counsel Gilchrist Connell, Sydney
George Hoddle Promoted to Director Everingham Solomons Solicitors
Clint Coles Promoted to Director Everingham Solomons Solicitors
James Halliday Joined as a Consulting Principal Keypoint Law
Caitlin Torr Appointed to Senior Associate Blanchfield Nicholls Partners Family Law
Eva Vicic Promoted to Partner, Real Estate McCullough Robertson, Sydney
Shannon Rogers Promoted to Partner Barkus Doolan Family Lawyers
AdamHenderson Promoted to Partner, Commercial Hicksons
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Frances Dreyer Promoted to Partner Johnson Winter & Slattery, Sydney
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THERAPY DOGS More dog days coming to NSWcourts They say every dog has its day – but what about dogs having a dog day in court? It’s not a completely barking idea, according to NSWAttorney-General Mark Speakman, who announced the rollout of a new Canine Court Companion Program in July. “Guide Dogs NSW/ACT is busy training dozens of Labradors who will be the stars of the Canine Court Companion Program at Burwood, Campbelltown, Gosford, Goulburn, Lismore, Manly, Nowra, Orange, Sutherland and Taree,” Speakman said. “ e fab Labs will patrol the courthouses, looking to help anyone who’s stressed and in need of fur therapy.” Speakman said the program would be delivered by Guide Dogs NSW/ACT and rolled out to 10 courts across NSW, following a successful pilot program at Manly Courthouse run by Delta Society dogs. e Manly program received unanimous support as anxious victims and witnesses reported feeling more relaxed and ready to give evidence after a cuddle with the happy hounds. “We know that the presence of a dog can help calm people and lower anxiety, and it’s wonderful to see our dogs are already doing this at Manly Courthouse,” said CEO of Guide Dogs NSW/ACT Dale Cleaver. “I’m looking forward to seeing our dogs soon bring comfort and companionship to court users at other courts throughout NSW.” Guide Dogs NSW/ACT has more than 60 years’ experience as the leading provider of guide dogs orientation and mobility services, and has been named Australia’s most trusted charity brand in the Reader’s Digest Trusted Brands survey for six consecutive years.
Leave the gift of a better life Leaving a bequest to Diabetes NSW& ACT helps us support, educate and advocate for those living with diabetes and fund life changing research. Our services and programs are designed to help those living with diabetes better manage their condition so they can live their best lives! Continue the circle of life with a gift in your will. For more information about leaving a bequest contact DNSW& ACT Planned Giving Manager on: 02 9552 9925
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SOCIALMEDIA Lawyers learn pitfalls of social media
those things and to make educated, considered choices. Social media is not a private bubble.” Norgard said it was important for legal professionals to have their say and use social media for their enjoyment, but to be mindful of their audiences. “ e proliferation of social media use seems to be blurring the division between conduct at work and outside of work,” said Norgard. “It’s important to be clear about whether you are acting in your personal or professional capacity, but also to recognise circumstances where this may not be clear. It’s not about censorship, but about being mindful and sensitive to context.” e guide comes as defamation laws in Australia defamation laws. Attorney- General Mark Speakman announced the review in March as legal experts pointed to a dramatic increase in social media cases hitting the courts. “ e key takeaway from this publication is that the application of these areas of law do not simply become irrelevant when it comes to social media,” said managing editor of the guide, Eva Lu. “In fact, as a result of the immediacy and greater reach of social media, application and e ect of some of these areas of laws has become much more signi cant and ampli ed. Take the recent developments in defamation law and privacy, for instance.” An electronic version of the guide is available on the NSW Young Lawyers website. may be about to change dramatically, as the NSW government commits to a statewide review of
Social media has made its way into every facet of our lives, and the legal profession is no exception. e NSW Young Lawyers Communications, Entertainment and Technology Law Committee has prepared a practical guide to the uses and pitfalls of social media for lawyers. e guide, titled e Practitioners Guide to Social Media and the Law , is aimed at all lawyers learning about the intricacies and challenges of practising law in NSW in the digital age and social media era. Jessica Norgard, Chair of the members, who felt a guide or cheat sheet around the use of social media would be helpful for lawyers and practitioners. With so many committee members interested in contributing, it morphed into a comprehensive guide across various areas of the law. e guide covers legal issues around using social media as evidence in litigation and employment frameworks, as well as a guide to copyright infringement, defamation, misleading and deceptive conduct, and crime in a social media context. Norgard said it was full of helpful tips for practising lawyers and for individuals as employees. “If you’ve had a hard day at work and you post about it on Facebook, you might think what you’ve written is cryptic, but it could have signi cant consequences,” Norgard said. “It’s important to be mindful of Communications, Entertainment and Technology Law Committee, said the idea for the guide came from Law Society of NSW Legal Technology Committee
DOMESTIC VIOLENCE Online program to combat domestic violence in digital age The O ce of the eSafety Commissioner lawyers working with women who are abused, controlled or stalked through technology like phones and the internet. Australia’s eSafety Commissioner Julie Inman Grant said technology-facilitated abuse was a sad but logical next step for stalkers and harassers operating in the digital age. e new program, “eSafety Women – online training for frontline workers”, equips frontline workers of all industries with skills needed to assist women who are victims of digital threats. “While the e ects of technology- facilitated abuse may not always be visible, we know the impact can be just as devastating to a woman’s physical and psychological wellbeing and safety,” said Inman Grant. “It’s essential that professionals helping women in these situations have easy access to quality training to provide them with the con dence and skills they need to help women protect and empower themselves, and their families, online.” e program is the rst substantial training program of its kind and has so far been delivered to more than 5,000 workers across Australia. Frontline professionals, including lawyers and social workers, allied health professionals, police and government employees who assist women experiencing domestic violence can register for the free online training now at frontlineworkers.esafety.gov.au has released an innovative online training program to better train
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ACCESS TO JUSTICE Law Society joins forces with police to campaign for new justice precinct
on for trial,” said Gooley. “We join with the Law Society in calling for urgent action to address this issue.” In March, the Greater Sydney Commission released a draft district plan for Western Sydney, which estimated population in the Macarthur region would grow from 500,000 to 1.02 million in the next 10 years. e 150-page report, presented to the NSW Government by Chief Commissioner Lucy Turnbull and South District Commissioner Morris Iemma, included big plans for transport, health and education infrastructure – but included no plan for the area to build new courts or improve current justice infrastructure.
President of the Law Society of NSW Doug Humphreys said the predicted explosion in the Macarthur population would put even greater pressure on the courts and legal services that were already struggling to cope with demand. “ e three local courts at Camden, Campbelltown and Picton cannot manage the current backlogs in criminal and civil cases,” Humphreys said. “Camden and Picton were built in the 1800s and are no longer t for purpose. is means victims of crime and residents seeking resolutions to business and family disputes are waiting inordinate amounts of time for justice.”
The Police Association of NSW has joined forces with the Law Society of NSW in calling on the NSW Government to fast-track construction of a new court complex to service the Macarthur region. e three local courts at Camden, Campbelltown and Picton have been facing an increasing backlog of cases in 2018 as the area struggles to keep up with surging population growth. Secretary of the Police Association of NSW Pat Gooley said these backlogs were absorbing police time that could be better spent responding to and investigating crime. “Police are tired of having to explain to victims and witnesses why matters are taking so long to come
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M E D I C O L E G A L P S Y C H I A T R Y Criminal & Civil Forensic Reports
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