LSJ August 2020

A class of their own? As Victoria changes the rules on contingency fees, will NSW follow? Unearthing dirty secrets A string of complaints has revealed a grim reality about our privacy laws Ending the shame game Why the profession must change the way it talks about harassment It’s amatter of trust How duty and land tax surcharges will impact discretionary trusts

ISSUE 69 AUGUST 2020

The shadowof injustice

Why people of colour are at a distinct disadvantage within our legal system

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Contents

28

38

48

Features

24 Hot topic

34 Contingency planning

48 Extracurricular

Kate Eastman SC on why the profession must address the shame attached to sexual harassment

As Victoria changes contingency fees in class actions, Katie Walsh asks what it means for NSW

Lawyer and triathlete Phil O’Sullivan reveals how the gruelling sport keeps him in the challange zone

38 Our secret is out

52 Fitness

26 Lunchwith the CEO

Are lax Australian privacy laws leaving us exposed? Kirrily Schwarz investigates

After months of at-home fitness apps, Zara Michales suggests enjoying your exercise in the great outdoors

Outgoing Law Society CEO Michael Tidball reflects on 14 years in a “never boring” role

44 Mindset

54 Travel

28 Cover story

Forget 2020 vision: Angela Heise on how this year has taught us to change our perceptions

The Blue Mountains hits the spot for a serene escape, with Kate Allman’s guide for a perfect hometown holiday

Amy Dale on how the justice system fails people of colour and what we must do to fix it

ISSUE 69 I AUGUST 2020 I LSJ 3

54 74

Regulars

Legal updates

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

64 Advocacy

80 Corporate law

The latest developments in advocacy and law reform 66 Property and taxation New land and duty surcharges impact discretionary trusts 69 Risk

Temporary reforms slow opportunistic shareholder class actions during COVID-19

82 Cyber security

Cyber safety tips for working from home during COVID-19 84 Indigenous issues and children’s law

23 Expert witless 23 The LSJ quiz 42 Career matters 44 Mindset 47 Career coach 50 Health 57 Library additions 58 Youwish 60 Books and lifestyle 62 The case that changedme 106 Avid for scandal

Value of file notes in defending professional indemnity claims

Recent NSWCA decision expands the definition of ‘Aboriginal child’

70 Professional conduct

Legal Services Commissioner speaks out on sexual harassment

86 Consumer law

High Court decision soothes holiday disappointment

72 Constitutional law

The Governor-General, the Chief Justice and the Palace Letters

88 Human rights

Why Bernard Collaery’s case is one of the gravest threats to freedom of expression

74 Property

Tackling dodgy building work with a statutory duty of care

90 Taxation

76 Personal injury

Why accountants & lawyers must learn to work together

Costs under the Motor Accident Injuries Scheme

91 Case notes

78 Employment

The latest High Court, Federal, family, criminal, and elder law and succession judgments

Redundancy pay: nothing ‘ordinary’ about losing a contract

4 LSJ I ISSUE 69 I AUGUST 2020

Legal Aid NSW – improving our engagement

We value you. So we’re improving the ways we engage with you. Private lawyers are critical to ensuring Legal Aid NSW can deliver services across the state. We are working on new ways of doing things that will make it easier for you to do business with us. Together, we can deliver the best possible services to our clients.

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Because you told us you make sacrifices doing our work… We will provide more training and support

Want to know more? Email professionalpractices@legalaid.nsw.gov.au

Better engagement. Better outcomes.

ISSUE 69 I AUGUST 2020 I LSJ 3

A word from the editor

This month’s cover story will hit nerves – and it should. On page 28, Amy Dale delves into the world of people of colour accessing justice. It will make for uncomfortable reading for many. If your skin is a shade of anything but white, chances are that your experience with the justice system – whether as a client or a lawyer – might have at some point come up against multiple barriers. These barriers are varied and numerous, and

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor

the current Black Lives Matter movement playing out across the globe serves as a timely reminder that we should never stop shining a light on what these barriers are, lest they be forgotten. By the time this edition hits your desks, the Law Society’s CEO of the past 14 years, Michael Tidball, will have walked out the doors of 170 Phillip Street for the very last time. As you will read on page 26, he is moving on to steer the Law Council of Australia as its CEO. So, while we are losing him, I suppose we are not losing him entirely – his influence and determination will continue to generate positive ripples across the profession. The state of NSW just has to share him with the rest of the country now. We bid him a sad but fond farewell, and wish him all the very best for his next chapter.

Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2020 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.

Claire Chaffey

Contributors

JOHNMCKENZIE Professional conduct p70

CHRISTINE TRAN Corporate law p80 Christine Tran is a partner at Herbert

AMY DALE Cover story p28

KIRRILY SCHWARZ Feature p38 Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue, she investigates the state of play regarding Australian privacy laws and asks if we are falling behind in the information age.

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Amy is a journalist at LSJ . She is a published true crime author and a former policy and media adviser for the NSW government. This month, she explores the barriers to justice people of colour face and how we can create a fair and equal system.

John McKenzie is the Legal Services

Commissioner for NSW. This month, he speaks frankly to LSJ about sexual harassment and what his office, as co- regulator of the legal profession in NSW, is doing to address this challenging issue.

Smith Freehills. Here, she and fellow partner Harry Edwards examine recent changes to the Corporations Act intended to reduce opportunistic shareholder class actions during the pandemic.

Aclassoftheirown? AsVictoriachanges the ruleson contingency fees,willNSW follow? Unearthingdirtysecrets A stringofcomplaintshas revealed agrim realityaboutourprivacy laws Endingtheshamegame Why theprofessionmustchange theway it talksaboutharassment It’samatteroftrust Howdutyand land tax surcharges will impactdiscretionary trusts

ISSUE69 AUGUST 2020

ISSUE69 AUGUST2020

The shadowof injustice

Whypeopleofcolourareatadistinct disadvantagewithinour legalsystem

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.

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6 LSJ I ISSUE 69 I AUGUST 2020

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ISSUE 69 I AUGUST 2020 I LSJ 3

President’s message

2020 has been a year of disruption like no other in living memory. As the COVID-19 pandemic has continued to unfold, we have all been forced to adapt and make changes to every aspect of our lives – how we practise law, learn, communicate, socialise and stay safe. The uptake of various technologies, especially video technology, has been accelerated. Minds have been opened and changed. Assumptions have been swept aside. Sceptics and critics remain, but there is certainly greater acceptance now than in the past – amongst legal practitioners, judges, officials and court users – that judicial and court work might be undertaken differently. Since courtrooms were impacted by COVID-19 restrictions in mid-March, the legal profession has been forced to test

alternative ways to keep the wheels of justice turning. This has all happened at a pace never thought possible when we started implementing the recommendations contained in the Law Society’s ground-breaking 2016 Future of Law and Innovation in the Legal Profession (FLIP) Report. The suite of FLIP initiatives that has been developed since then has never been more crucial to the ongoing sustainability of our profession. With this in mind, we have two upcoming online FLIP events that will be of great interest and enormous benefit to legal practitioners. On 19 August 2020, Professor Richard Susskind OBE, the world’s most cited author on the future of legal services, will feature in an important webcast on “online courts and the future of justice”. Professor Susskind will introduce the various types of ‘remote courts’ that are emerging, discuss their advantages and limitations, consider the extent to which justice will be enhanced or diminished by these developments, and what the future might hold for judges and litigators. Professor Susskind’s webcast presentation will also include an online Q&A session. And on 1 September 2020, leading researchers from our FLIP Stream collaboration with UNSW Law will present a webcast on “change management for small law firms”. The findings from our FLIP Stream research on change management have shown that small firms are particularly well positioned for change. As someone who has worked in smaller firms for many decades, I am looking forward to gleaning some practical information and useful change management strategies from this presentation. This webcast and Professor Susskind’s online presentation are complimentary for members. Register now at www.lawsociety.com.au/events. Still on the topic of change, I am looking forward to welcoming our new Chief Executive Officer, Ms Sonja Stewart, when she takes up her new role with the Law Society on Monday 31 August 2020. In the meantime, I hope you enjoy the article on page 26 of this issue reflecting on Michael Tidball’s 14 years in the top job at the Law Society and the challenges that await him at the Law Council of Australia.

Richard Harvey , President, Law Society of NSW

8 LSJ I ISSUE 69 I AUGUST 2020

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ISSUE 69 I AUGUST 2020 I LSJ 9

Mailbag LETTERS TO THE EDITOR

ISSUE68 JULY 2020

Insurer backflip on funeral claim I write to thank Belinda Cassidy for her article,

in our profession, Jim will be remembered for an enormous girth and even bigger smile and sense of humour. I think that in amongst the battering we as lawyers get day after day – by the public, the media, “pencil pusher pedants” in ancillary services to the legal profession ever ready to take a shot, many of us are at the “coalface” of trauma each and every day. I think it fitting that I share what Jim would say, “when you smile it’s much harder to cry”. The world will miss James Nicopoulos, as for all his “rough edges” he gave a lifetime to clients, colleagues, and family, making them smile and fighting hard to make their life better. Vale James Nicopoulos. Michael Vassili Vale JohnWilliam Francis Brennan John Brennan was one of the last true gentlemen family lawyers of his generation. He embodied the generosity of spirit that ensures one genera- tion of lawyers gives to the next and inspires that same tradition of support for one another. He knew talent when he saw it, identifying and taking under his wing a young Jennifer Boland AM (later to become her Honour Judge Boland then her Honour Justice Boland and most lately Deputy President NCAT). He and his then wife, the equally accomplished Helen Brennan, would spot a young Paul Le Gay Brereton (later to become Major General Paul Le Gay Brereton AM RFD and Supreme Court Appellate Judge) dining alone at the Inter- continental Hotel, ensconced with a brief, and persuade him to join them and set the brief aside at least for a moment. After the amalgamation of his practice, John worked with and mentored three practitioners who became Family Court of Australia justices and two who became Federal Circuit Court judges. He made friends wherever he went – collecting

life-long friends at judicial conferences, one would fre- quently hear about his latest catch up with the Japanese or English judiciary. He worked diligently and for long hours often all night ahead of one of his frequent overseas trips and his colleagues and family would be left wondering if the can which collected him from the office would see him make his flight. His then long-suf- fering (and highly skilled) but very loyal administrative staff would have the task of deciphering his handwritten faxes from far flung places and turning them into pleadings, affidavits or correspondence. As a widower, John found new sunshine in the later part of his life with Anne Connor, his second wife, herself a dedicat- ed family lawyer, who travelled with him and nursed him in his final years. John relinquished his practising certificate most reluctantly and after countless years of fine lawyering. He was one of the first independent children’s lawyers (then called separate representatives) in NSW and a member of the Law Society Family Law Committee. John was a founding member of the NSW Law Society’s inaugural Specialist Accredi- tation Board and Chair of the Family Law Specialist Accred- itation Subcommittee. That subcommittee pioneered the use of videoing an applicant’s performance with a person role playing a client using a struc- tured script. John held office as Lieutenant Commander in the Royal Navy Legal Reserves and served his fellow reservists well. It is strange to be farewelling such a social creature without public gathering or celebration of life. John is survived by sons Peter, Tony and Michael (and their families), his son David having pre-deceased him, and his wife Anne (and her family). We are all richer for having known him. The Hon. Justice Watts and Suzanne Christie SC

ISSUE68 JULY2020

Acrumblingpedestal Criticismof theHighCourt is growing louder,but towhatend? Legalre-education HasCOVID-19 foreverchanged thewayweeducateour lawyers? LunchwiththePremier GladysBerejiklian letsherguard down to talkabout true leadership

‘The aftermath of death under the Motor Accident Injuries Act’, June LSJ, p82-83. It was a quite timely, indeed. I helped a man lodge an application for funeral expenses for his broth- er who was killed when riding a bike in January this year. The insurer recently replied deny- ing liability. After calling them and making them aware of Belinda’s article and section 3.4 of the Act they changed their decision and will now pay the funeral expenses. Thank you! Whilst this matter is resolved, I am worried about how the insurer dealt with the claim and how they may be dealing with other claims for funerals. I wonder if this is something that should be reported to SIRA. Patrick Latham, Nowra Vale James Nicopoulos On the passing of life long school friend, former partner (in the law), best man, Godfa- ther to my daughter, and fellow legal practitioner James Nicop- oulos, it is perhaps sanguine to reflect on what lawyers bring against the sea of seeming doom and criticism. James (Jim or Jimmy), depending where you sat, spent some 30 years with all the rough edges of walking life’s path through personal hurdles and shoul- dering the personal problems of others. Like some of us, myself included, health and other factors intrude and are consequences of day-in and day-out being the “rock” for others in our society in trauma. In the heart of Western Sydney where he was, there are few, if any, diamond miners walk- ing through the door seeking to avert potential problems. There are an endless number of clients who are on the edge of a proverbial cliff, there is trauma, there is violence. Like many, over time, that takes its toll. Amongst that, like many

Deaths incustody The search foranswers in the faceofpolice silence

Why lawyersmustbeonthefront line ofpreventingelderabuse Thehighcostof growingold

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WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.

E: letters@lawsociety.com.au

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

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

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

10 LSJ I ISSUE 69 I AUGUST 2020

LETTERS TO THE EDITOR

NDIS a Bleak House for those in need Have we come to the point in Australia that people with dis- abilities, as well as many others with various special needs, must publicly reveal their entire lives to receive support? ( LSJ , July 2020) Whatever one may think of ‘sex therapy’, the fact that cases can turn on such intimate matters and, whether a Tribunal thinks these are ‘reasonable and necessary’ given a claimant’s circumstances, shows the sweeping discretions of agency officials and quasi-judicial reviewers. Is this what the NDIS was supposed to be about? As another participant myself, I am tired of having to annu- ally justify every part of my existence to representatives of the National Disability Agency. The other 11 months are spent administering my ‘plan’ pro-bono, where there used to be a state-run Department of Ageing, Disability and

Homecare manned by paid staff. Anyone who says this new arrangement gives me or anyone else choice, while advancing our human rights, should take another look. An image more in keeping with the High Court of Chancellery from Charles Dickens’ Bleak House may well emerge. Individual tailoring invites disputation and makes next to impossible the establishment of a basic basket of basic goods and services that all participants can access with minimal fuss. In the end, what we need are day-to-day support services, not fine legal points about how many therapists can dance on a pinhead. And, while we are litigating these points, which talented research sci- entists are not being funded to cure our disabilities for all time? Adam Johnston Truth about Indigenous imprisonment Your headline “Rate of Indig-

enous youth imprisonment is falling” (June LSJ ) does not seem to be accurate. The AIHW report Youth Justice in Australia 2018-2019 states that the rate of Indigenous youth under supervision has dropped slightly. But supervision is not “imprisonment” or detention and includes community-based supervision. Please note that the contents page states: “Although only about 6 per cent of young people aged 10–17 in Australia are Aboriginal or Torres Strait Islander, half of those under supervision on an average day in 2018–19 were Indigenous. Rates of Indige- nous (33–35 per 10,000) and non-Indigenous (1–2 per 10,000) young people in deten- tion fluctuated over the same period.” Also ... “young people aged 10 and over who were under supervision on an aver- age day saw a small decrease of 1 per cent” and “Supervision fell (by 1 per cent) over the

five years from 2014–15 to 2018–19 for community-based supervision, however rose for detention.” The report does not say that the rate of Indigenous youth being imprisoned or detained has fallen and it seems much more likely to have risen, given the overall rise and that half of all the young people in detention are Indigenous. In addition, a 1 per cent drop in supervision rates does not seem worthy of note. Misleading headlines are unhelpful when the true state of a airs ought to be a matter of the utmost concern. Dr Meg Perkins PhD A rebuttal on climate The letter of JimMain in the July LSJ challenges the statement in my letter in the June LSJ that scientific debate on whether anthropogenic greenhouse gases (AGHG) have any e ect on climate is still ongoing. He refers to the NASA website

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ISSUE 69 I AUGUST 2020 I LSJ 11

Mailbag LETTERS TO THE EDITOR

survey information as proof that there is no real disagreement on the theory in the scientific com- munity throughout the world. NASA’s conclusion is based on the collective opinions of a limit- ed 200 scientific bodies that are about 97 per cent in agreement with the IPCC’s theory, together with a number of surveys of sci- entific papers which have been published during the past 30 years. The results of the surveys vary widely and certainly do not support the finding that 97 per cent of all scientists agree, proclaimed in the headlines of NASA’s web page. A thorough examination of the 2013 survey by J Cook et al reveals that of the 11,914 papers reviewed, 66.4 per cent had no position at all and only 32.6 per cent endorsed the view that AGHG caused global warming. The results of the other seven surveys vary enormously from 7 per cent to 100 per cent. NASA’s finding has been widely criticised as being misleading and in no way representing anything like 97 per cent of all scientists and scientific bodies in the world. In my previous letter I quoted the words of former leading NASA scientist Dr Roy Warren Spencer, who is held in the highest regard throughout the world, that he is opposed to the IPCC’s theory. He was pro- hibited from expressing this view publicly while working for NASA. Many scientists who have resigned from the IPCC have also expressed opposition to its theory. More than 32,000 indepen- dent scientists have signed a petition, organised by the Oregon Institute of Science and Medicine, stating that global warming has not been caused by increased emissions of AGHG and that the limits proposed by the UN on AGHG emissions will harm the environment, hinder the advance of science and technology, and damage the health and welfare of mankind. Professor John Christy, recipient of the US Meteorolog- ical Society’s special “Award for Fundamentally Advancing Our Ability to Monitor Climate” and lead author for the IPCC’s AR2 and AR3 reports, has stated, “I have often heard it said there is

a consensus of scientists on the global warming issue that humans are causing catastrophic change in the climate. Well I am one sci- entist, and there are many others, who say that it is simply not true.” Nevertheless, I have retained a completely open mind on the causes of the recent period of global warming and I neither support nor reject the IPCC’s theory even though, on its own admission, its computer models upon which its theory is based have been found by indepen- dent review to be flawed by as much as 100 per cent, all in favour of higher temperatures. As I stated in my previous letter, if we accept the theory and dire predictions of the IPCC, the real problem for the world is that in 2019 China’s increase in AGHG emissions (being 0.26gt) exceed- ed the total increase in the entire world (being 0.24gt) so the rest of the world actually reduced its AGHG emissions (by 0.02gt). These are facts not “self-evidently illogical and untenable” as claimed by Peter Breen in his letter in the July LSJ . (ref: www.carbonbrief. org/analysis-global-fossil-fuel-). This is quite understandable, as China has (5,884) more than half the coal fired power stations in the world (10,210) and is currently building more. I also reject Peter Breen’s claim that I “find the IPCC so objectionable” which is with- out any foundation as my previous letter does not con- tain any words to this effect. I also totally refute his accusation that my revelation on China’s AGHG emis- sions “is a doozy and takes Ch i na-ba s h i ng to a new level of absurdity”. This is an absurd statement, as every responsible citizen in our democracy should be entitled to express concern about the current real threat that China represents in failing to address its ever increasing AGHG emis- sions even if it upsets China. Apparently, China has no current commitment under the Paris Accord to reduce its AGHG emissions, so if the IPCC’s theory is correct and its alarming predictions become a reality,

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the plain fact is that China will be largely responsible for these consequences. Strangely, the United Nations is not showing any concern. The purpose of my previous letter was to express concern about the content of the Inter- national Bar Association’s model statute for climate liti- gation and its application, and not to enter into a debate on the causes of climate change and global warming which, notwithstanding the denials of Jim Main and Peter Breen, still remain in serious contention within the world’s scientific community. Peter N Dunlop What 97 per cent? No doubt Peter Breen is aware of lemmings and their tendency to follow. Does he not recall the group of Scottish scientists some years ago who ‘fessed up to manipulating test figures to produce damning “climate change” results and that they later recanted and admitted their false intentions. Are these part of the 97 per cent? And dear old Al Gore who turned it into a business. And Tim Flannery with his bizarre predic- tions. Bothpart of the97per cent? We also recently have Michael Schellenberger who was a darling of the “climate change” set apologising for his involve- ment with it and the fact it has misled so many people world- wide. The comments of Dr Ray Warren Spencer in Peter Dun- lop’s letter regarding the IPCC’s “dogged attempt to salvage” its “credibility” and that it “has gone overboard in its attempts to scare the global public” and its “almost total neglect of natural forcing mechanisms” affecting climate (e.g. increased sunspot activity) are far more believable than the supposed 97 per cent who believe in the human-in- duced “climate change fluff.” A reminder that CO₂ is required as part of photosynthesis by which all greenery lives and thrives and emits O₂ for our benefit. Both the UN and its IPCC struggle to justify their existence, being rife with partisan views about most

things e.g. the UN’s defence of China in the present global pandemic. Oops, is this more China bashing? The net is a convenient place to dump stuff to push any barrow you like and for those that swallow it and then believe it without question, more fool them. I will take Peter Dunlop’s position over the sup- posed 97 per cent any day. What 97 per cent of any group agree on anything? If the dissenters did not participate in the survey that arrived at the supposed 97 per cent, how representative is it? Peter Wilson’s position regarding hazard reduction is also to be supported and the sooner adopted the better, par- ticularly in the face of Councils and State Government Ministers that are terrified of the Greens and environmentalists who are more concerned about obscure insects than human life and property. With apologies to Jim Main for whom I have great respect and who terrifies me with each of his articles in LSJ that point out our frailties. HR Cole Proud of 50 years In the July LSJ Phillip R Williams understates the significance of his 50th anniversary of admis- sion to practice. I celebrated 50 years as a NSW Solicitor on 24 April this year. We elder Solicitors have much to reflect upon and to celebrate, although we may have been overtaken by many factors, including the expansion of the law generally and the numbers who have entered the profession since we were young, not to mention the technolog- ical changes we have had to keep pace with! For me, the anniversary represented more than a per- sonal milestone. I have been fortunate to have enjoyed many and varied roles during my career as a Lawyer. I would like to think that along the way I have achieved a measure of contribution to the develop- ment of the profession and to the knowledge and experience of those I have worked with, and mentored, over the years. Maria Linkenbagh

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ISSUE 69 I AUGUST 2020 I LSJ 13

Briefs NEWS

EQUALITY Law Society funds new research into workplace gender equality BY KATE ALLMAN

A multi-disciplinary team of research- ers from the University of Sydney hopes to crack the glass ceilings preventing women from reaching their full poten- tial in legal careers. The team, led by Professor Rae Cooper from the university’s Business School, will partner with the Law Soci- ety of NSW to investigate strategies for achieving gender equality in Australian legal workplaces. The Law Society has pledged $60,000 dollars and significant in-kind support over the lifetime of the three-year project, adding to an Austra- lian Research Council grant as well as cash and in-kind support from the Uni- versity of Sydney and Women Lawyers Association of NSW. President of the Law Society of NSW Richard Harvey said the re- search was timely. As workplaces and the economy reel from changes brought on by COVID-19 restrictions, evidence is emerging that women are dispropor- tionately affected by job losses and re- duced hours across all industries. “The Law Society of NSW has been at the forefront of measures for the ad- vancement of women in the legal pro- fession in the past decade,” President Harvey said. “The Law Society sees this research project as an opportunity to seize the momentum of the current workplace transformation, delve into how lawyers are adapting to the changes, examine what is working well and then channel these findings into strategies for gender equality.” Since 2019, there have been more women than men lawyers at both state

and national levels in Australia. The Law Society’s 2019 National Profile of the Profession report showed that women made up 52 per cent of solic- itors across Australia, and graduated from law school at significantly high- er rates, but still lagged behind men in leadership positions. Data from the Australian Financial Review’s 2019 Law Partnership Survey revealed that just 27 per cent of partners in large and medium-sized firms were women. “The law isn’t alone in the classic pyramid structure of men at the top and more women below, but we’re interested in why lawyers think that is the case,” said Cooper, who has studied issues of gender, work and employment relations for 20 years and in 2019 was made an officer of the Order of Australia for her contributions to “higher education and to workplace policy and practice”. “It may be that there are some parts of the law or areas of practice where it is more difficult for women to progress into senior roles. The goal of our re- search is to answer those types of ques- tions, and work with stakeholders in the law to design gender equality into workplaces.” In light of recent revelations of sex- ual harassment in the legal profession going all the way to the High Court, Cooper said the impact of sexual ha- rassment on careers would be a key as- pect to the research. “From conversations across our focus groups, it appears sexual harassment is worryingly common. And we are defi- nitely going to focus some questions on it. But I think we need to be aware of

sexual harassment as part of a broader ecosystem of gender-based mistreat- ment and disrespect – which we know diminish the professional capabilities and confidence of women.” Cooper said similar research she had done across other industries revealed that women’s careers were halted when their needs were not being met. Fea- tures like workplace flexibility, good pay and interesting work came up reg- ularly. The most-cited desire for women in the workplace was secure employ- ment – an area that COVID-19 has re- vealed many workplaces fall short. “Women across the labour mar- ket are more likely to be in insecure, short-term contracts than men; recent COVID-19 job losses and reduced hours have shown us how it impacts women more,” said Cooper. “The other thing they want is to be treated with respect – and this ranks almost as high as employment security. What does that mean? We think there’s a real gendered angle to it. They want to be treated as professional competent, they want a sense that they have a voice, collegiality and faith.” Cooper and her team began initial work on the project in July and will provide progress reports intermittently throughout its duration. The academic research team comprises Chief Investi- gators, Professor Rae Cooper, Professor Ariadne Vromen and Dr Meraiah Foley and Post-Doctoral Research Fellow Dr Sarah Mosseri, who build on a land- mark report in 2018 about national and social attitudes on the future of work and gender.

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NEWS

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The hottest (takeaway) ticket in town: deliciously prepared meals and pantry staples delivered straight to your door from the Law Society of NSW Dining Room kitchens. Every Dining Room hamper purchased will enable Food- bank NSW & ACT to provide a food hamper to a family in need. Order at: lawsociety.eventsair. com/presidents-charity-hampers/ hamperbookingform/Site/Register Government SolicitorsWeek 2020 We are doing the highly anticipated Government Solicitors Conference differently this year, starting on Mon- day 7 September. Do not miss this opportunity to access five days of vir- tually delivered webinars, panels and thought-provoking sessions, accessible to watch live online or on-demand at your convenience. Register at: lawsociety.com.au/ government-solicitors-week-2020 Online Courts and the Future of Justice Professor Richard Susskind OBE will introduce the various types of ‘remote courts’ that are emerging, discuss their advantages and limitations, and con- sider the extent to which justice will be enhanced or diminished by these developments in an online webcast. Register at: lawsociety.com.au/ events/events-calendar/online- courts-and-future-justice-professor- richard-susskind-obe

Michael Tidball Outgoing Law Society of NSWCEO and newly-appointed Law Council of Australia CEO

There are very few moments in my job that have been boring. Very few.

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Briefs NEWS

What does your job involve? In a nutshell, it is implementing initiatives to combat racial discrimination and prejudices that lead to it. It’s also promot- ing a just, fair and equal society for everyone. We’re not equal when there remains unequal justice, treatment and opportu- nity in our community. On a day-to-day basis I attend a lot of meetings and engage with stakeholders. I also try to keep a clear focus on the bigger picture, which involves setting road maps to becoming the society we seek to become. My job of- ten requires responding to race issues as they arise. is can range from communal disputes to confronting large-scale race problems such as COVID-19-related racism. How has COVID-19 impacted your work? It has con ned me to working from home in Melbourne when my o ce is in Sydney. It has been di cult at times, but I’m learning new tricks about how to get things done. In terms of content, it is disappointing to note there is a general increase in racism due to COVID-19 particularly directed at Asian Aus- tralians. Since February, we have seen a substantial increase in complaints of racism to the Human Rights Commission. I’ve been focused on driving strategies and engagement to address racism that has emerged from this crisis. What are the biggest challenges for the legal profession? e legal profession needs to remain relevant and meaningful, particularly in a post-COVID-19 world. Within the profes- sion, its members need to feel valued and ful lled in their voca- tion. e profession must strive to maintain its role as a trusted leader and institution of the community. Another issue is the staggering lack of representation of Asian Australians in senior roles. ere needs to be a cultural shift in the legal profession. Race Discrimination Commissioner Chin Tan is passionate about promoting cultural diversity and combatting racism in Australia. Prior to joining the Commission, Chin spent three years as the Director for Multicultural Engagement at the Swinburne University of Technology and over two decades working as a lawyer. He discusses his career and thoughts on the legal profession with FLOYD ALEXANDER-HUNT . sixminuteswith CHIN TAN

What legislation or policy frameworks need to be introduced or amended?

e Commission has been keenly aware of the intersection- ality of discrimination in Australia. We would like to see the introduction of a positive human rights framework. ere is a standing advocacy for Australia to adopt a human rights char- ter. We are currently the only country in the western world that does not have one. Additionally, in a world where it is largely polarised by extremism, I believe it’s important that we provide stronger and more e ective laws against hate crimes. What are you most passionate about? Most lawyers were drawn to the legal profession because they had a passion for defending people against injustices, standing up for their interests, and championing legal causes for the greater good of society. I remain true to that passion. I believe there is a multicultural tent in Australia and that we all belong in it. No one should be left behind. Of course, being respectful of our Indigenous Australians, the analogy may need to be adapted but we can work together. I want to give power and hope to Australians of all diverse backgrounds to believe in this country as their home. What do you do in your spare time? I wish I had more spare time! I love to read and spend as much time as I can with family. I like helping my wife out in the kitchen to prepare meals. I also try to go to the gym. My wife is trying to get me to run but I’m not much of a runner. I also devote considerable time to engaging with multicultural com- munities, attending events and functions, and generally just being with community and supporting and understanding what’s happening out there.

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NEWS

COVID 19 Immigration detention conditions pose high risk of COVID-19

Commonwealth Ombudsman Michael Manthorpe has urged the government to reduce the number of people in immigration detention, following an investigation into the management of COVID-19 risks in the facilities. In a comprehensive statement, the Ombudsman revealed the number of people in overcrowded detention cen- tres continues to climb despite public health authorities calling for the reduc- tion of people detained in crowded environments. e Ombudsman also criticised the lack of monitoring and inconsistent practices across detention facilities. ese sentiments are echoed by the Public Interest Advocacy Centre (PIAC)

and the Australian Human Rights Commission, which have both called for changes since nationwide restric- tions began in March. e investigation by the Ombudsman found crowded conditions of these detention centres make it impossible to e ectively practise social distancing. Consequently, men and women in these facilities are at a high risk of contracting COVID-19 and experiencing serious harm. “ e Ombudsman recommends the department works with the rele- vant ministers to reduce the numbers of people held in immigration deten- tion facilities, with a particular focus on achieving e ective social distancing in the facilities, and with particular regard

to detainees with underlying health issues that may render them suscepti- ble to any outbreak of COVID-19,” the statement said. Jane Leibowitz, who leads PIAC’s Asylum Seeker Health Rights Proj- ect, described the situation as “deeply worrying”. “In crowded detention environ- ments, even a single case could prove catastrophic for detainees, sta and the broader community,” Leibowitz said. “ e Government has a duty of care to those it detains. “Specialists have advised that the best way to prevent signi cant transmission is to reduce the number of people in detention.”

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Briefs NEWS

Ben Harris Promoted to Partner Willis & Bowring Solicitors

Kalinda Colley Promoted to Senior Associate Fletcher Pidcock Lawyers

Bronte Crittenden Promoted to Associate Fletcher Pidcock Lawyers

Irfana Kamerasevic Promoted to Associate Acorn Lawyers

Kenneth Chan Promoted to Special Counsel in IP & IT Johnson Winter & Slattery

Elizabeth Pecipajkovski Promoted to Senior Associate Acorn Lawyers

Jeremy Davis Appointed as Managing Partner Johnson Winter & Slattery

DavidMewett Promoted to Associate Acorn Lawyers

Iona Sjahadi Promoted to Partner HBA Legal Sydney

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

COVID 19 All at sea: COVID-19 “humanitarian crisis” for shippingworkers

Legal experts and the United Nations are aligned in growing concerns for the human rights of shipping workers stranded at sea due to global lock- downs stemming from the COVID-19 pandemic. As international borders closed and worldwide restrictions kicked in, hun- dreds of thousands of shipping workers have found themselves desperate, with no way to get home. e International Transport Work- ers’ Federation estimates more than 300,000 seafarers, who often work

six- to eight-month stretches at a time, are stranded at sea or waiting to start employment and get paid. In addition to the humanitarian and welfare concerns associated with crew being left onboard vessels for up to a year, legal experts say that if the current situation is left unresolved it could have a catastrophic impact on global trade and see supply chains grind to a halt. In June, the UN expressed concern regarding the “growing humanitarian and safety crisis facing seafarers around

the world” and called for nations to designate seafarers and marine per- sonnel as “key workers”, which would enable crew changeovers to take place. “As a result of COVID-related travel restrictions, hundreds of thousands of the world’s two million seafarers have been stranded at sea for months,” the UN statement said. “ e world could not function without the e orts of seafarers, yet their contributions go largely unher- alded; they deserve far greater support at any time but especially now.”

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NEWS

MIND YOUR

BY LINDEN BARNES , SENIOR ETHICS LAWYER

Some curious issues on ethics and costs

tion of the law practice’s engagement, that the client or another person authorised by the client, is given any client documents … unless there is an effective lien.” This will also include producing copies of any part of the file that is con- tained in electronic form. However, if the file is retained it must be stored by the practice for a period of seven years. The nature of file storage is not limited to hard copies, as electronic means are becoming increas- ingly used. However, electronic storage must be in a form that permits accu- rate retrieval. A common problem is ensuring that electronic storage is safe, confidential and the systems of soft-

ware and hardware operate over the archive period. Some systems may not remain operative over seven years or beyond and are unsuitable. Significant costs may be borne by the solicitor for file storage. However, a solicitor ‘must not charge for the stor- age of documents, files or other property on behalf of clients, or for retrieval from storage of those documents, files or other property … unless the client has agreed in writing to such charges being made’. The costs of legal practice may include these costs borne by the solic- itor, when dealing with the use and storage of confidential information and client documents.

With legal practice having to adapt ever more quickly due to the rapid changes forced upon us from cur- rent events, it is worth noting some curious issues of ethics and costs. Technology has allowed solicitors to work remotely yet still have access to files and databases that normally would be contained in hard copy within the office environment. Yet we can access these remotely, often working on previ- ously large and bulky files with the click of a mouse or use of a memory stick. The technology may change, but every solicitor still has obligations regard- ing client documents. The solicitor must ensure that, “upon completion or termina-

BROUGHT TO YOU BY THE LAW SOCIETY OF NSW COSTS COMMITTEE

Q: What if a client complains about costs I’m trying to recover?

A: Under Chapter 5 of the Legal Pro- fession Uniform Law (NSW), a client may be entitled to complain to the Legal Services Commissioner about a “costs dispute”, as defined in section 269 of the law. If such a complaint is made after the practitioner or the client has already applied for assessment of the costs con- cerned, the assessment will ordinarily be stayed until the complaint has been determined, by virtue of section 197 of the law.

By virtue of the same section, if there is not already a costs assess- ment underway, any fresh application for assessment made before resolution of the complaint will automatically be stayed. However, this automatic stay does not necessarily mean the practitioner is able to relax and do nothing about a pending assessment or deadline. A complaint to the Legal Services Com- missioner will not pause or extend: • the time to respond to a request for

objections/response by the Manager, Costs Assessment, in an exist- ing assessment (which cannot be extended, even by the Manager); or • the 12-month period for practi- tioners to apply for assessment of their own costs under section 198(3) of the Law (as discussed in the April 2020 edition of the LSJ ). Accordingly, practitioners need to ensure they comply with these dead- lines even if the balance of the costs assessment process has been stayed.

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