LSJ August 2019

ISSUE 58 AUGUST 2019

Freedomof tweet Will Israel Folau’s sacking set a precedent for free speech? All alone and anxious Why sole practitioners are more vulnerable to mental ill-health Everyone’s a publisher How a recent ruling has dramatically changed the defamation game Reigning in robo-debt Will the Federal Court’s overdue scrutiny right a legal wrong?

Her Excellency Margaret Beazley AOQC on leaving law, pushing boundaries, and why she’s not a feminist Amost royalascent

PLUS: UPDATES ON RISK, HUMAN RIGHTS, PROPERTY, PERSONAL INJURY & MORE

3 September | Four Seasons Hotel Sydney lawsociety.com.au/GovSol2019 CONFERENCE SOLICITORS GOVERNMENT 9–10 August | ICC Sydney lawsociety.com.au/SpecAcc2019 CONFERENCE ACCREDITATION SPECIALIST

CONFERENCE RURAL ISSUES 25 October | InterContinental Hotel Sydney lawsociety.com.au/Ruralissues2019

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Contents

24

30

36

Features

50 Extracurricular

24 Hot topic

36 Losingmy religion

Lawyer Trent Wallace on being an ‘awful Aboriginal’ and how workplaces must do better 26 Lunchwith a crime editor Channel 9 court and crime journalist Emma Partridge shares the secrets behind her scoops

Amy Dale writes how Israel Folau dragged employment law into the spotlight and divided expert s

Young lawyer Emily Miers prepares to swim the English Channel and raise money for children’s brain cancer

40 Sole practitioner blues

52 Health

Sam McKeith speaks with lawyers going it solo on how they keep loneliness in check

Why long hours, little sleep and mental fatigue is causing so many lawyers anguish

30 Cover story

46 Mindset

56 Travel

A brilliant career that is still on the rise. Kate Allman sits down for an exclusive chat with Governor Margaret Beazley

Leadership coach Angela Heise explores the powerful di erence between reputation and credibility

Lynn Elsey explores Phoenix, Arizona, a city of endless sunshine, outdoor adventures and fine dining

ISSUE 58 I AUGUST 2019 I LSJ 3

40

50

60

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 28 Out and about 44 Career matters 46 Mindset 47 Library additions 48 Doing business 49 Career coach 54 Fitness 60 Youwish 62 Books 64 The case that changedme 106 Avid for scandal

66 Advocacy

82 Employment law

The latest key developments in advocacy and law reform

A costly sexual harassment case sends a warning to the legal profession

68 Social security

84 Property

Finally, a Federal Court challenge to the government’s robo-debts scheme

An overview of some essential concepts in e-conveyancing

71 Risk

86 Defamation

Tips for managing risks in litigation practice

We are all publishers now: why businesses do need to read the online comments 88 Practicemanagement Common sense tips to help

72 Human rights

Freedom of religion and speech in the spotlight: why it’s time for change

boost your productivity at work

76 Personal injury

89 Family law

Updating the profession on operation of the CTP scheme

An in-depth analysis of the recent High Court sperm donor case

78 Personal property

92 Case notes

Registering security interests: key considerations when seeking an extension of time

A wrap-up and analysis of the latest HCA, FCA, family, criminal, and elder law & succession judgments

80 Litigation

The way forward: how we can bridge the gap between the digital and analogue worlds

4 LSJ I ISSUE 58 I AUGUST 2019

For Registration visit www.tlc.asn.au MCLE seminars in March 2020 Family Law Saturday 7 March Criminal Law Saturday 14 March Employment Law Friday 20 March Legal Research Workshop Saturday 21 March Tax & Equity Friday 27 March Rule 6.1 Mandatory Components Saturday 28 March Upcoming events in 2019 Advocacy Workshop TWO SATURDAYS 26 October & 2 November 2019 e-Conveyancing & Its Fundamentals: Saturday 9 November 2019 TLC’s 12th Annual Fundraising Dinner Saturday 16 November 2019

Exhibition

Visit the Just Art Exhibition to see this year’s finalists and celebrate the creativity in the legal profession. Artworks will be available for purchase to support

the 2019 President’s Charity, Our Watch. Save the date 20–23 August Law Society Building, Level 2, 170 Phillip Street, Sydney lawsociety.com.au/justart

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For Registration visit www.tlc.asn.au

ISSUE 58 I AUGUST 2019 I LSJ 5

A word from the editor

What an honour to have Her Excellency Margaret Beazley gracing this edition’s cover. There are few jurists as accomplished, fiesty, modest – and just downright impressive – as our new Governor. So many women in the profession especially view Her Excellency as a true heroine, fearlessly conquering the law with nary a second thought of any barriers in her way, perceived or

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor

otherwise. Her Excellency is a delightful example of the power of choosing to believe anything is possible, even when circumstance and history may indicate otherwise. Her interview with online editor Kate Allman is a joy – even more so on film, so head to lsj.com.au/videos for a lively and colourful discussion. In other news, we’re excited this month to introduce additional legal content exclusive to LSJ Online, where you will now find extended case notes and additional legal updates articles. Check it out and sign up if you haven’t already – it’s free for members. For those already using LSJ Online, we would love your feedback! Drop us a line at letters@lawsociety.com.au.

Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Publications Project Lead Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290

Claire Chaffey

LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney

Contributors

© 2019 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

AMY DALE Feature p36

TERRY CARNEY Social Security p68 Terry Carney AO is Emeritus Professor of Law at the University of Sydney and was a member of the AAT for 39 years. Here, he exposes how the Government’s unlawful robo-debt scheme is still operating and why lawyers need to step up.

ROSALIND CROUCHER Human Rights p72 Rosalind Croucher AM is President of the Australian Human Rights Commission. She delves beyond the current controversies to explore how our fundamental rights and values can be better enshrined.

27,100 * *AUDITED MARCH 2019 DISTRIBUTION

Amy is a published true crime author, former government policy adviser and now journalist at LSJ . In this issue, she explores the case of Wallabies star Israel Folau and how far employers can go in policing the private lives of their staff.

Kate is a multimedia journalist, podcast host and Online Editor at LSJ . She has degrees in law and journalism from UNSW. This month, she scores an exclusive interview with the much-loved Governor

of NSW, Margaret Beazley AO QC.

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.

Cover photography: Benjamon Powell

NEXT ISSUE: 1 SEPTEMBER 2019

6 LSJ I ISSUE 58 I AUGUST 2019

ISSUE 55 I MAY 2019 I LSJ 45

President’s message

“Robots in suits”, “TheUberisationof the legal services market”, “Thinking like a Kardashian” and “Making science fiction a reality”. These were just some of the engaging topics discussed, debated and analysed at the Law Society’s Future of Law and Innovation in the Profession (FLIP) Conference and Innovation Dinner held at the Sydney Hilton on 25 July. About 600 lawyers, innovators and technologists attended the conference and dinner, held under the banner of solicitors serving clients in new ways, guided by timeless values. The FLIP program expresses the Law Society’s commitment to helping lawyers prepare for a dynamic, uncertain and exciting future, and the conference and dinner were crucial components of the program, as was the successful FLIP Roadshow that travelled to Newcastle, Wollongong, Dubbo and the North Coast earlier this year for the benefit of more than 300 regional members. The FLIP Conference and Innovation Dinner provid- ed attendees with an immersive and engaging program

from the big thinkers in the profession, along with panel discussions, interactive workshops, the latest from our FLIP Stream research project, and even a Great Debate moderated by the Hon Michael Kirby AC CMG. Canadian author, lawyer and legal futurist Mitch Kowalski provided an enlightening opening keynote, focus- ing on what the profession could look like in 30-plus years from now. “Will 2050 bring us legal robots in suits?” he asked, “Or only a slightly better version of the legal services we receive today?” The answer, according to Kowalski, is likely somewhere in the middle. Over the next three decades, he said, the talent mix within legal services pro- viders will adjust as legal technology reduces the need for masses of lawyers. As a result, legal services professionals will be able to do more work with greater accuracy in less time – from anywhere on the planet, all supported by the appropriate technology. Kowalski’s thought-provoking address laid the groundwork for Professor Richard Susskind’s afternoon presentation, webcast live from the UK, which challenged delegates to change their mindset to prepare for the future legal services market. The FLIP Conference and Innovation Dinner was the most ambitious and challenging event ever developed by the Law Society. Our purpose-built “Today & Tomorrow Alley” provided an immersive and interactive experience, personalised to each ‘time traveller’ who journeyed through it. The Law Tech Theatre featured bite-sized pitches by legal tech product providers, and the Emerging Tech Lounge showcased the newest technologies shaping the evolution of legal practice. The Innovation Dinner, with Kowalski as the guest speaker and the finalists of the #In- novateLaw2019 hackathon presenting their solutions to real-life challenges set by the Supreme Court and the Law Society, provided another exciting glimpse into the future of law and brought the day to a fitting close. The next major event coming up is the annual Specialist Accreditation Conference in Sydney on 9-10 August. Her Excellency the Honourable Margaret Beazley QC AO, Governor of NSW, will deliver the opening address. As you can see, Her Excellency is also the subject of this month’s cover story – a fascinating read about a truly remarkable woman. Visit lawsociety.com.au/events/events-calendar/specialist-accreditation-conference for more information.

Elizabeth Espinosa

8 LSJ I ISSUE 58 I AUGUST 2019

My firm thrives at My firm thrives at SIMON DELLA MARTA , PARTNER POINTON PARTNERS SYDNEY CHRISTELLE SANTELLI INNOVO LEGAL

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week, but also after hours. I would be willing to pay for that service. Any business model that charges a fee for services needs to meet the expecta- tions of those seeking them. It is my experience there are generally two types of clients: the demanding and unde- manding. The undemanding person would be prepared to accept his or her lawyer not being available five days a week and after hours. The demanding client will require seven days a week service and after-hours contact. Unless there is legislation preventing lawyers from providing 24/7 service, it will be provided to those clients prepared to pay. I would assume the 80/20 rule would apply, in that 20 per cent of people seeking legal services will be demanding. I would also assume the 20 per cent makes up 80 per cent of legal work and fees generat- ed. The e ect will be those lawyers will have greater fees and earn more income. If two young lawyers start at a firm and one is prepared to work six to seven days per week and meet the expectations of the demanding client, I do not need to state the obvious as to where this will lead regarding disparity in pay. Perhaps some thought should be put into these initiatives and the con- sequential e ects before they are promoted as an essential part of legal services and the business model. Telling young lawyers they can have a work- life balance in their career and still earn a large income and build a practice is a disservice to their career planning and expectations. If you think I am sexist by stating this, you are not in touch with the reality of the provision of legal services in 2019. Brendan Manning Shout-out to Illawarra Legal Centre An article in April LSJ referred to the enormous benefit of the Work and Development Order (WDO) Scheme to individuals experiencing disadvantage by

allowing repayment of fines through education, volunteer- ing, or counselling programs. We certainly agree. The article referred to the role of PIAC and Legal Aid NSW in the law reform process that resulted in changes to the Fines Act 1996 .We also wish to draw attention to the work of the Illawarra Legal Centre (ILC). ILC sta worked tirelessly on the project, including part- nering with the law faculty of the University of Wollongong to investigate the impact of fines on young people in the Illawarra, conducting research, and liaising with the then State Debt Recovery O ce. The ILC worked with community organisations to clarify what WDOs were, how they would work, and encour- age organisations to sign up to o er WDOs. During the initial two-year trial period, ILC was indirectly responsible for setting up a large proportion of the 2,000 WDOs required to move beyond pilot status to become permanent. The ILC’s work in the development of the scheme was noted in NSW Parliament by the Member for Keira, Ryan Park, as having been crucial in the establishment of WDOs. He particularly mentioned the e orts of the ILC in promot- ing the scheme to community groups by way of community legal education. ILC continues to promote the scheme and distributes resources devel- oped and published by our centre. Once the WDOs were declared permanent, Legal Aid NSW received the necessary funding to continue the proj- ect and took responsibility as the main liaison point, and has been essential in the scheme’s continuing success. Truda Gray More love and humility I could not stay silent regarding my wholehearted agreement with Tom Adams’ letter (Mail- bag, July LSJ ), particularly calling out the scapegoating of (generally) Christians as if no others in history have ever

Lawandpolitics:a lovea air Why somany lawyersare tailor-made for successfulpoliticalcareers An insidiousepidemic The shockingfindingsofanew report on the truecostof family violence Aclimateripefor litigation Howa tinycommunity ismaking legal historybyfighting for its veryexistence EvenQueensland isdoing it Asournorthernneighbourenshrines human rights, is it timewecaughtup?

ISSUE57 JULY 2019

Ditch the useless reviews

ISSUE57 JULY2019

When I think of all of the money wasted on family law reviews, I can’t help recalling my 1963 Ford Cortina, which I left on the side of the road in my youth. Sometimes, when something’s so broken, you just need to move on. For parenting, we need panels of experts, not adversarial systems. Psychiatrists, spe- cial needs educators, social workers, drug and alcohol counsellors all working together to constructively support families. Do we want to “fix” issues or throw orders at them? For property mat- ters, we need assessors with powers to get valuations from panels and issue notices for production of records. Why can’t an ATO-like assessment system apply to cut through the adversarial nature of the present system? Don’t get me wrong, I don’t mind the business – I just don’t like the human carnage, including children. Michael Vassili The (un)reality of work- life balance It amazes me when I read LSJ and other publications that fail to understand law is a predominantly private business model. Most law- yers in NSW and Australia are privately employed by small to medium firms. There is a push towards the workplace being more accommodating to the needs of lawyers. In the private sector, people will pay for legal services that are of high quality, delivered on time and within budget. People are prepared to pay fees if provided the service they want. I could not imagine anything more frustrating than if I called my lawyer to find out he or she was not working on a business day due to a work- life balance arrangement. I would want the lawyer to be available not only five days a

Ahidden hazard Why the legalprofessioncanno longerrun from therealityofbullying

PLUS: UPDATESONPRIVILEGE,EMPLOYMENT,COMPLIANCE,TAX,ESTATES&MORE

LSJ07_Cover.indd 1

20/6/19 9:07am

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

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

10 LSJ I ISSUE 58 I AUGUST 2019

Musing on leaving full-time work

been guilty of marginalising certain groups. Tom’s com- ments on ideologues were spot on, and I would add that in the current “high offence” culture, the only ones we are allowed to offend are those of faith. After all, shouldn’t they just turn the other cheek? I would also like to point out that many of our very good legal concepts have their roots in Judeo-Christian ethics and Christians are exhorted to love others, be self-sacrificing and humble, following the example of Jesus. Perhaps if all of us showed more love and humility we wouldn’t be dealing with such hostility and offence in the first place. Deborah Tam I confess to feeling uncom- fortable submitting this letter. I am a 46-year-old Anglo Saxon partner in a law firm. I look like a lawyer from a comic book and I find it odd that I am writing a note about flexibility. I am hardly a great example. Perhaps that is why it’s important. I’m not sure when I started to reflect more deeply on how the work lives of women and men differ so much. Perhaps it was when I was given Annabel Crabb’s The Wife Drought , or per- haps it was the self-interest of having two daughters and thinking about the world they will navigate as they enter the workforce. In reality, it was seeing the struggles of my talented, hard-working wife on her return to work; seeing how hard she works – and still does – to fill the gap I leave at home. The impact of doing all the pickups and being unable to stay at work. It is embarrassing I did not think about this until I was aware it directly affected the person with whom I share my life. The monotony of making lunches over years and of getting children fed, bathed and to bed alone. The default that my work was more important. Confessions of a part-time partner

Last year, I started think- ing about working part time to spend time with my two pre-schoolers and, in some way, to take pressure off my wife. I thought about working four days a week. I agonised over it. The practice was big. The clients needed me. I was encouraged and supported by my wife and partners, but I was reluctant. Then I realised I did not know what my kids ate for dinner. I had packed their lunches maybe twice and was home after they went to bed. I landed on a nine-day fortnight. I had kittens. What would happen? How would it work? What if something went wrong? I remember trepidation when I put this message as my out of office: Thank you for your email. I am having every second Wednesday off this year to parent my two girls before they go to school. Your email has been received on my day caring for my girls. Should your enquiry be urgent, please contact … All that happened was that clients and other lawyers told me they thought it was great and they wished they had taken the time when their kids were little. Working part time as a bloke to look after kids should not be a big deal, but it is. One day a meeting was arranged on the day I parented my girls and I have a distinct memory of being tempted to say I had to cancel the meeting as I was sick. It seemed more accept- able than saying I had to look after the girls. I told the truth, but the temptation to give another answer reveals how deep the programming goes that raising kids is a female task. I had never thought about what the transition was like for a woman who was a skilled, full-time professional and then changed to part-time hours until my wife went back to work. It is a great credit to my largely part-time team that I never reflected on that because they did it so well. However, the idea that part-

time workers have an easier work life is a fallacy. I look at how confronting I found it to reduce my work capacity by 10 per cent. Men’s work lives are far more linear than women’s work lives. Very few men have to navigate the massive change of working part time and caring for children (it appears we don’t ask to). Women have outnumbered men coming out of law schools for decades, but men still populate the upper ech- elons of the profession. I had the good fortune to spend time with a very high achiev- ing special counsel recently, and the idea that she could be a part-time partner was a revelation to her. For one reason or another, partnership is substantially thought of as a full-time occupation despite the relatively easy task of reducing a draw for reduced contribution (we seem to be able to manage that for some- one working full time and not making a profit). Men’s work lives need to change. Part-time male part- ners will make it easier for women to progress and see partnership as possible. In 2016, Bain and Co found that 60 per cent of men wanted to work flexibly, but they were twice as likely to have their request for flexible work hours declined. Women still dominate part-time work in Australia (68.65 per cent in early 2019). Working as a part-time partner for a year has been fantastic. It has forced me to wonder how much difference men working differently might make to women progressing in the profession. I have not had something taken fromme, but rather I have had something given back. To my male colleagues, ask for that time – it will most likely not just be good for you and your family, but it might also be great for your profes- sion. And now I know what my kids eat. Daniel

On 30 June 2019, I retired as Managing Partner of William- sonBarwick, an incorporated boutique workplace relations firm I started in August 2010. On 5 July, I will cease work altogether – for the time being. I have been planning this process for five years and, four years ago, Adrian Barwick and I commenced a buy-out process. What can I offer to my fellow practitioners who are nearing the end of their formal careers? Recognising that I wanted to choose the time of my departure and not be forced into giving up work through ill health was critical. Too many owners/partners hold on too long, and then may be forced to make tough decisions when they and their families are not ready. One of my former employers still had a sole practice when he died suddenly aged 74 and left his wife, me and fellow solicitors with a financial and legal mess to clean up. It took months. His widow is still recovering from the stress. The message: plan and think it through. Start that planning and your financial planning at least five years out – longer if you want to develop hobbies and interests. We are often the last to recognise we are aging. I’m 65 shortly but still feel 25. Last January, my wife and I had the latest of our rehearsals for retirement by having six weeks in Europe. In the Dubai souk, touts kept calling me “professor”. I eventually asked why, and they said, “You look old and have a white goatee” and “You look like an old pro- fessor!” Oh well, they knew I wasn’t 25. At least I didn’t look like the mad professor. The message: time waits for no one. Too many of us identify our being as our work. We are “solicitor”. Lose the work and the whole personality can collapse. I saw it first-hand

ISSUE 58 I AUGUST 2019 I LSJ 11

an employee, partner or principal to withstand the stress and strain inherent within that society. TAFE in its advertising trumpets “Be what you want to be”. We are bombarded with representations that we can all become brain surgeons. For many years law students, at the end of their first year in law, have become paid employees of the practice. They work in the practice when not being educated through to the end of their supervised period. The applicants for these much sought-after positions are extremely talented and well educated.However, they generally lack the life experiences that one would expect them to have at their age. I watched, without being able to reverse it, my first senior partner – a fine, generous and very sensitive man – drink himself to death. I observed my school mates and friends as they bore scars of service to their country in Vietnam, some extremely well, some very badly. Sadly, all of us cannot be what we want to be. We are just not hard wired to withstand the pressures that come with what we want to be, or what others want us to become. Perhaps it is time to introduce the need for employers and educators to consider – and even develop – testing that will identify whether or not the employee ready for promotion can withstand the pressures inherent within that pro- motion, or whether an employee is fit to handle the stress generally. Will the present failure on the part of employers and educators form the basis of another duty of care? My final comment: we watch our “newbies” very closely to measure their ability to handle stress, and we review that persistently as they take on more responsibility. There have been occasions where we have recognised an employee would be safer in another work environment, and have addressed this with the employee. The results have been amazing. One is now a very much acclaimed musician and another a highly sought-after make-up artist, loving what they do and doing it within stress levels they can accommodate. Warren Wells

when I acted for a bank manager in the 90s who was retrenched in his mid-50s. He never coped with no longer being a bank manager and shot himself. While I’ve worked in law as an articled clerk since 1973, then a solicitor and university lecturer, I’ve always been more: a human being, a husband, a friend and a father. I don’t need the title “solicitor” to prop up my self-es- teem. The message: think about yourself as a whole human being and what you have to o er and experience. Decide how to fill the time that any change in life circumstance creates. This includes not just loss or ending of a career, but death of a spouse, loss of a marriage, becom- ing empty-nesters. How do we fill the emptiness when a void occurs? Some folk fill it with rubbish. We have a friend whose husband died at 45. She was 42. She’s rushed into several huge jobs, travelling all over the world in her role but never fully grieving his death. Twelve years later it’s like it occurred yesterday. Don’t talk about retirement, per se. I’m not retiring – I’m taking a period of time to transition from structured to unstructured work. In the transition period my wife and I are spending a month walking in the Pyrenees and then 12 months grey-nomading to experience Australia. After that we’ll look at whether we keep travelling or what we can do to contribute to society. The message: think about how you will market yourself post-retirement. It will impact how others see you and your options for post-retirement work. Finally, thank you to my fellow workplace relations practitioners with whom I’ve either worked or had on the other side. It was a great decision to specialise in employment and industrial rela- tions and you have all made my career richer. Brian C Williamson Time for a stress test? Much has appeared in LSJ about “burnout”. Nothing has appeared about the complete lack within our employment society to measure the potential ability of

“This article made for distressing reading. Extremely sobering. I do careers advice to students on occa- sion and I have been bringing LSJ s with me to give them if they want to read about the reality of the profession. It’s a good thing to acknowledge it.” Janet De Castro Lopo, Facebook

“Most informative. Such an important topic.” Anne O’Donoghue, Facebook

“Great to be part of this very important conversa- tion, great work The Law Society of NSW for keeping this conversation alive.” Will Basby, LinkedIn

“Great leadership from The Law Society of NSW.” Sandya Manickam, LinkedIn

“This is just so concerning on many levels. We all look up to the legal profession. I guess it will take people beginning to speak out before it changes. Sadly, fear seems to be what is allowing this to continue.” Kathie Melocco, LinkedIn

“A great read.” Karena Nicholls, LinkedIn

12 LSJ I ISSUE 58 I AUGUST 2019

“Thanks for sharing this and for penning it Trent Wallace. There is no magic wand for building cultural competency; but relevant, plain- ly-expressed examples of the diversity of Aboriginal Australians’ experience are essential to the process.” Justin Moses, LinkedIn

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ISSUE 58 I AUGUST 2019 I LSJ 13

Briefs NEWS

‘A profession of distinction’: LawSociety outlines three-year vision

BY AMY DALE

relevant to the particular situation. We recognise the services we provide will respond to different issues in the regions.” A new area of interest, Tidball told LSJ , has been outlined in the plan as “support law practices seeking to draw on the experience of foreign lawyers,

“The challenge for us now is to lead the profession within that globalised marketplace.” Tidball said there will also be greater effort put into tackling mental health and wellbeing issues in the profession, as well as other systemic problems like bullying and sexual harassment and, for

A fresh focus on the needs of regional and rural NSW, and an eye to the global law market; with an ambitious breadth the Law Society of NSW’s new Strategic Plan for 2019-2021 will aim to unite the profession, no matter the location. Under the Strategic Plan, which came into effect on 1 July, the Law Society will “promote the profession as one of dis- tinction, actively demonstrating its value and contribution to the community”. The CEO of the Law Society of NSW Michael Tidball said the Strate- gic Plan is based on a stronger body of membership research and consultation than ever before. Tidball said the Law Society drew on the advice of its regional presidents and expert committees in developing the strategy, to ensure more is done to respond to the needs of the bush. “This is the first time we have sought to gain input from the regional law societies, the various Law Society com- mittees and subject experts. It’s our hope that their input has been well captured in this framework,” Tidball told LSJ . “The Law Society of NSW, in seeking to unite the profession, must realise there can be an immense distance between the aspirations, the types of work, and the culture of city-based practice versus the needs of regional practitioners and practitioners working in regional envi- ronments. The gap is enormous. “The responsibility we have is to ensure that, wherever the practitioner, wherever the firm, the Law Society pro- vides services, support and advocacy

The responsibility we have is to ensure that, wherever the practitioner, wherever the firm, the Law Society provides services, support and advocacy that are relevant to the particular situation. We recognise that the services we provide will respond to different issues in the regions. MICHAEL TIDBALL, LAW SOCIETY OF NSW CEO

including by advocating for appropriate changes to the regulatory framework, and promote international market access for NSW solicitors”. “While we are not a national organisation, some of the great legal associations of the world are city or pro- vincially based, like the New York Bar or the Paris Bar Association,” he said. “NSW is an economic powerhouse and a leader. Forty-five per cent of the nation’s lawyers are in NSW, so we have the critical mass. The Law Society has existed since 1842 and we are a power- ful, well-resourced law society.

the profession to set an example in sup- porting its workforce. “We know from various studies that we have a serious challenge in the profession around mental health and wellbeing issues,” he told LSJ . “The vital step was to have an open conversation, because those issues have been there for a long time. “The needs of lawyers to find sup- port, professional development and also the appropriate wellbeing equilibrium for them as individuals is vital, and the Law Society of NSW must continue to play a lead role in that space.”

14 LSJ I ISSUE 58 I AUGUST 2019

NEWS

Influencers

NEWTHISMONTH Just Art exhibition kicks off

by

After much anticipation and deliberation by an esteemed judging panel, the Just Art finalists will be chosen and on display between 20-23 August at the Law Society of NSW. The artworks will be available for purchase, with proceeds supporting the 2019 President’s Charity, Our Watch. lawsociety.com.au/justart

Tickets selling fast for Young

Professionals Ball Spend “one night in Paris” and help raise much-needed funds for the Public Inter- est Advocacy Centre at this year’s Young Professionals Ball in Sydney on 31 August. The theme is L’Affaire Parisienne , and or- ganisers have promised to deck out the glamorous venue at Sofitel Wentworth with Parisian backdrops, French paintings and Moulin Rouge-inspired performers. Gather your squad and reserve a table at lawsociety.com.au/events Early bird registrations

Teresa O’Sullivan NEWLY APPOINTED NSW STATE CORONER

open for LAWASIA Conference

The 32nd LAWASIA Conference will be held in Hong Kong from 5-8 November. This is the annual flagship event for law- yers, bar leaders, jurists and professional organisations from across the Asia Pacific, designed to facilitate discussion of regional developments in law. Register now at an early bird rate available until 31 July 2019. lawasia2019.com

For those who are experiencing their hardest days as they deal with the loss of a loved one, we can all imagine being in their shoes and we workwithin a culture of kindness.

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Briefs NEWS

You were made the youngest female partner at HFW while on maternity leave with your son, Ace. How did you achieve this? Throughout my career, as I became more comfortable and confident at each stage, I looked for new ways to develop. I participated in internal courses that HFW offers to promote non-legal skills and clear path- ways towards partnership. It’s important to keep learning new skills, things they do not teach you at university. I am also in the final stages of completing my MBA, and that has helped me grow in my job and take on new responsibility. When I put in my application for partner, I knew I had done all the right things and given everything I possibly could have to secure that position. I never considered that my pregnan- cy was going to be a bar to achieving that. We should not be considering pregnancy and maternity leave as any kind of barrier. I had a lot of women come to me after learning I was made partner on maternity leave asking for my recommendations on what they can do to achieve the same. There is a definite need to have more women – and greater diversity in general – at the senior levels of law. There is a very high number of female law graduates compared to male graduates, but once you look at senior positions you do see that ratio drop off. When women start their career, you are looking at a career progression of eight to 10 years before you might be in a position to become partner. Law firms should be looking at how they can facili- tate both women and men having families during that time and not have them thinking they are losing a year of their career, or that the momen- tum and journey to becoming partner has stalled due to parental leave. What can firms do better to support the career progression of women who have a family or are planning on starting one? We talk a lot about flexible work, but it is an entirely different thing to create an environment where it is actually accepted. Lawyers, just like any other professional, should be able to feel certain they can grow and develop both a family life and a career at the same time. Law firms have a reputation of a high-pressure culture that is difficult to balance with a family, and it should not be that way. I do not see what I have done as trailblazing; people have had both families and work for as long as humans have been around. At HFW, 85 per cent of our senior associates are female, the highest percentage in Australia. Many of these senior associates have young families. Non-legal-focused development programs are really important to remove unconscious bias and create a more inclusive and diverse culture. Your role involves a lot of work with international offices. How do you balance late night and early morning time zone clashes with a baby? There is a saying that it takes a tribe, and I could not have achieved what I have in my career without support at home. My husband has his own businesses, which allows him to be more flexible. If my partner had the same job as me, it would be very difficult. In my family we know how to tag team, and I know I have support if I have to be on a conference call to London at 9pm or midnight. Do you think there will be a day when becoming partner while on maternity leave is simply business as usual?

sixminuteswith

STEPHANIE LAMBERT

Stephanie Lambert is a partner at HFW and specialises in commercial law and major projects, including high-profile acquisitions and retail developments. Last year, at age 35, she became the youngest female partner at HFW Australia while on maternity leave with her first child. She talks to AMY DALE about how she achieved partnership and her hopes that one day mixing a promotion with parenthood will not be a big deal.

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NEWS

BY PAUL MONAGHAN, SENIOR ETHICS LAWYER

Q: Dealingwith the office bully: what are our professional obligations?

bully is a coward and the psychopath will always crawl back under their own dark rock when the light of truth shines upon them. With regard to the topic of how we should treat others, it is prudent to remember our professional obliga- tions that are stated in our Solicitors’ Rules and to observe the professional standards required with regard anti-dis- crimination, harassment and bullying: “A solicitor must not in the course of practice, engage in conduct which constitutes discrimination, sexual harassment, or workplace bullying.” Also, the issue of ‘bullying by proxy’, which is a favorite pass-time of some who mistakenly believe the bullying of a staff member through the calcu- lated manipulation of other staff to do their bidding, is a source of unending amusement. They are warned that such behavior may result in a complaint of professional misconduct. At the recent launch of the Interna- tional Bar Association report, “Bullying and sexual harassment in the legal pro- fession”, the issue of bullying within the legal profession was recognised as a significant problem and should never be tolerated within the legal profession. A simple rule should be applied for successful practice by every solicitor: “Good manners and common sense in all matters.” Regrettably, these desired traits are not always that common. Good luck in practice.

A: Lawyers are a competitive lot and like to work hard and party hard. Nothing wrong with that, but what happens when competition and the pressure of work take a sinister turn and you or a col- league get picked on, harassed or bullied? At a CPD session I once stated boldly: “Let us ensure we act like professionals – be honest and courteous in all dealings in the course of legal practice, ensure that you do not threaten, intimidate or bully other solicitors or parties ...”. The response was noteworthy as one participant said: “ What is left for us to

practice law with?” This illustrates a major problem with the culture of some law firms. The legal profession attracts the brightest and best people, yet in a small minority of cases it has become a haven for the psychopath and degenerate. Many solicitors have taken an interest in psychology merely to identify what particular personality disorder a member of staff or opposing counsel may be suffering from. In addition to conducting an office guessing competition regarding person- ality types, it should be noted that every

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Briefs NEWS

Jennifer Hughes Appointed as Senior Special Counsel Beatty Legal

Peter Naddaf Promoted to Associate Law Partners

Rebecca Furner Joined as Senior Associate and Practice Group Manager, Family Law Team Burke Mead Lawyers

Holly Jackson Appointed to Associate Ledlin Lawyers

Megan Zhou Joined as Associate CCSG Legal Pty Ltd

Stefania Boitano Promoted to Senior Associate Barwick Boitano Lawyers

Cheryl Weston Joined as Partner, National Insolvency and Reconstruction Piper Alderman, Sydney

Deena Palethorpe Promoted to Associate Holmes Donnelly & Co

Christopher Aoun Promoted to Senior Associate, Banking and Finance Makinson d’Apice Lawyers

Michelle Barraclough Promoted to Senior Associate, Property Makinson d’Apice Lawyers

Nadia Baker Promoted to Special Counsel Carroll & O’Dea Lawyers

Evelyn Garnett Promoted to Special Counsel Carroll & O’Dea Lawyers

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

PROFESSIONALNOTICES

On 5 July 2019 , the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Andrew Graham Stuart be removed from the local Roll; and they he pay the Society’s costs in default of agreement.

On 27 July 2019 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 SHS Law Pty Ltd for a period of two (2) years.

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BUILDING LAW Expertswarnof loomingbuildingcrisis

Boggs Avendra Singh joined Edney and Ho man on the panel. ey pointed to speed and careless project management as the likely causes of construction problems in Sydney apartments. “Focus has been on speed and pro t, to the detriment of en- suring proper building work is done,” Easthope said. e panel was held as construction lawyers prepare for a state parliamentary inquiry into building standards and the regula- tion of building disputes, which opened for written submissions in July and will hold its rst public hearings in August.

A panel of lawyers, engineers and academics scru- tinised the Sydney apartment building crisis at a sold- out event at the Law Society of NSW on 24 July. e event, part of the “Ask an Expert” discussion series or- ganised by NSW Young Lawyers and sponsored by Unisearch, was held in the wake of a spate of high-pro le building failures – one of which was splashed across the front page of e Sydney Morning Herald on the very morning of the panel event. e rst of these failures occurred in the high-rise residential Opal Tower in Sydney Olympic Park last December and forced more than 3,000 residents to evacuate their homes. “ e million-dollar question we are all asking is, what went wrong?” asked David Edney, a barrister and Vice-President of NSW Young Lawyers, who moderated the panel. “ e original design of the Opal Tower was ne,” Mark Ho - man, Dean of Engineering at UNSW, said. “But during the con- struction process, the builders worked quickly and made changes to the original design. So the strength of the building and thus the safety factor was reduced.” Head of School Civil and Environmental Engineering at UNSW Stephen Foster, Associate Professor at UNSW Hazel Easthope, and construction lawyer and partner at Squire Patton

CONTACT US: Suite 203, 46 Market St SYDNEY NSW 2000

ph: (02) 8399 2050 fax: (02) 8399 2080 email: info@mlp.com.au web: www.medicolegalpsychiatry.com.au

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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Briefs NEWS

INDIGENOUS ISSUES LawSociety opening doors for Indigenous students

sity and do a nursing degree,” Longford said. “Girls Academy is always helping with assessments and homework.” “Girls Academy is a place for young Aboriginals to feel comfortable and to have someone other than their parents to talk to,” Lamb said. “In the future I would really like to finish school and then go to university and graduate. My dream job is to be a lawyer.” The Girls Academy program sup- ports more than 2,500 students in 43 sites across Australia. Each academy has a minimum of two full-time female mentors who provide the students with auntie and sister-style mentoring and support. President of the Law Society of NSW Elizabeth Espinosa said she was pleased the Law Society could play a “small part in supporting better outcomes for In- digenous education and helping these young women to succeed.” “It’s so inspiring to see the impact that The Girls Academy program is making, not just in NSW but all over Australia. Eighty-six per cent of the girls that have completed The Girls Academy program are either in gainful careers or completing tertiary education – what a wonderful outcome,” Espinosa said. The expo featured some of Australia’s top employers and tertiary education providers, who outlined a wide range of career and study pathways for Indig- enous students who will sit their HSC exams later this year. Teachers, relatives and other members of the Aboriginal and Torres Strait Islander community also attended the event. Premier of NSW Gladys Berejiklian recently announced a new Premier’s Pri- ority to increase the proportion of Ab- original students completing Year 12 by 50 per cent by 2023, while maintaining their cultural identity.

From left: Toni Longford and Shamika Lamb during the “Be the Change” Indigenous Careers Forum

It’s so inspiring to see the impact that The Girls Academy program is making, not just in NSWbut all over Australia. Eighty-six per cent of the girls that have completed The Girls Academy program are either in gainful careers or completing tertiary

education – what a wonderful outcome. ELIZABETH ESPINOSA, PRESIDENT, THE LAW SOCIETY OF NSW

Shamika travelled from Dubbo in the state’s west, and Toni came from Melville on the North Coast to attend the one-day expo in Sydney. Both par- ticipate in The Girls Academy program, which provides in-school education and mentoring for Aboriginal and Torres Strait Islander girls. “In the future I hope to complete my HSC and obtain my driver’s licence, but ultimately I would like to go to univer-

As the state’s largest-ever number of Aboriginal and Torres Strait Islander girls prepared to sit their HSC exams, Year 12 students Shamika Lamb and Toni Longford had plenty to ponder at the “Be the Change” Indigenous Careers Forum in July. The Law Society of NSW proudly sponsored the two students to attend the career and study expo held in Syd- ney during NAIDOC Week.

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NEWS

MENTAL HEALTH Anxiety and depression rife among small firms

believed it was likely they or a colleague would experience depression at some point in their careers. e Meritas Wellness Survey involved 200 employees at Meritas member rms, from partners through to non-legal professionals. A large proportion of respondents said they felt barriers to seeking help for mental health issues at work – some preferred to manage it on their own (38 per cent) but many were worried about asking for help or what others might think of them (26 per cent). Twenty one per cent said nothing would prevent them from accessing help.

Managing Partner of Swaab andChair of Meritas Australia and New Zealand Regional Committee Mary Digiglio said the survey showed there was still a lot of work to do to boost awareness of mental health issues and overcome barriers to help-seeking behaviour. “Stigma and a fear of reaching out remains a critical barrier that hin- ders many people from seeking help,” Digiglio said. “We each need to take responsibility to look out for each other and continue to nurture a supportive and open culture to reduce the prev- alence of mental illness in the legal profession.”

Sixty-three per cent of lawyers in small- and me- dium-sized firms say they have experienced de- pression or have a close colleague

who has, according to a landmark wellness survey published in June by Meritas Australia. In addition, 85 per cent of lawyers who responded to the survey said they had experienced anxiety or knew some- one close to them in the workplace who had. More than half of respondents

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