LSJ August 2021
All the legal ladies Women on top and more surprises in the latest profession data Operation greenwash Why climate change is creating new pockets of risk for lawyers Digital accountability What the Online Safety Bill will mean for online service providers Bankruptcy or bust The pitfalls of pursuing bankruptcy on the basis of assessed costs
ISSUE 80 AUGUST 2021
Why lawyers are leading the push to go bush in a COVID world
PLUS: UPDATES ON PROPERTY, INSURANCE, RISK, EMPLOYMENT AND MORE ...
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24 Hot topic Should the right to clock o and ignore work emails be enshrined in law? Amy Dale explores a landmark decision 26 Lunchwith NSW Attorney-General Mark Speakman opens up on his bold legislative agenda over a virtual lunch with Kate Allman 32 Cover story Is a COVID-change the new tree- change? Sam McKeith meets lawyers escaping the city for regional areas
38 State of the profession How is the solicitor profession growing and diversifying over time? LSJ unveils the latest national profile data 42 Greenwashing the law Kirrily Schwarz examines whether lawyers and law firms have a duty of care to act on climate change
50 On track for success
Between training and Tokyo, Olympic sprinter Rohan Browning is finding time to make strides in a law degree
Rates of dementia are soaring but small steps earlier in life can make a di erence, writes Angela Tufvesson
Ensure your career achievements are underpinned by your values with this guide by Angela Heise
Cascading waterfalls, croc adventures and sunset markets: Kate Allman discovers the treats of the Top End
ISSUE 80 I AUGUST 2021 I LSJ 3
66 Advocacy The latest in law reform and
80 Business and human rights What the first round of modern slavery reporting reveals about Australian business and what’s next 83 Risk Lawcover’s Jen McMillan looks at the headaches that adjustment clauses in wills can cause 84 Space law Steven Freeland examines the problem space junk poses to life on earth and possible legal solutions 86 Employment Can ‘out of hours’ conduct constitute 88 Case notes Expert updates on the latest High Court, Federal Court, NSW Court of Appeal, NSW Court of Criminal Appeal, Family Court, and elder law and succession judgments a valid reason for dismissal? And is honesty always the best policy?
6 From the editor 8 President’s message 10 Mailbag 14 News 23 Expert witless 23 The LSJ quiz 28 A Country Practice 46 Career matters 48 Career coach 48 Mindset 52 Health
advocacy from the Law Society’s Policy and Practice department
68 Cyber law An overview of the controversial Online Safety Bill and the eSafety
Commissioner’s expansive new powers
71 Crime and cyber law New laws point to an Australia-US
Cloud Act agreement allowing cross- border access to encrypted data
74 Costs A practical look at the pitfalls of pursuing bankruptcy on the basis of a judgment for assessed costs 76 Property Are you holding a paper CT as a lien? Soon it may not be worth the paper it’s printed on 78 Insurance As COVID-19 business interruption claims gather pace in the courts, we examine the outlook for insurers
55 Library additions 56 Destination guide 62 Books and lifestyle 64 The case that changedme 106 Avid for scandal
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A word from the editor
A s we go to press with LSJ ’s 80th edition (she is o cially a grand old dame) we are once again held hostage to the COVID-19 pandemic. So much is at stake, and so many people are having to sacri ce so much. Given that you are reading this edition as a digital-only ver- sion, you will by now know that our beloved LSJ is not immune to the impacts of lockdown. As thousands of o ces throughout NSW remain empty, we simply could not justify the cost and waste associated with sending tens of thousands of magazines to uninhabited desks. We know many of you will be disappointed but, if you are reading this, you have found your way to our fantastic Flipping Book version, which lets you enjoy all of our content and design on your favourite device. You can also visit lsj.com.au for an optimised online experience. Rest assured that, as these challenges endure, the LSJ team is working hard to bring you our usual content to assist you both professionally and personally during what is an incredibly di cult time. It is not lost on me that this is the rst break in printing of the journal since 1963. is observation brings home that we are living through truly extraordinary times. Take care.
Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor
Jacquie Mancy Online Editor Kate Allman Journalist Amy Dale
Art Director Alys Martin Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290
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© 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 ocial 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.
John Van de Poll Insurance p78 John is a Partner at Holman Webb Lawyers. Here, he and Stephanie Carter examine the outlook for the insurance industry as it faces the possible implications of recent and pending Covid-19 test cases brought by a¢ected businesses.
Phoebe Wynn-Pope Modern Slavery p80
SamMcKeith Cover story p32
Kirrily Schwarz Feature p42
27,578 * *AUDITED SEPTEMBER 2020 DISTRIBUTION
Phoebe is Head of Business & Human Rights at Corrs
Sam is a journalist and filmmaker who has worked at the AFR and Hu ngton Post. He has a Bachelor of Arts (English) and Law. This month, he meets lawyers who made the country move after COVID-19 changed oce life forever.
Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue, she considers recent developments in climate change litigation, and whether lawyers have a duty to be more climate conscious.
Chambers Westgarth. Here, she and fellow Partner Heidi Roberts examine what is e¢ectively our first national report card on modern slavery and wherewe go fromhere.
Allthe legal ladies Womenon topandmore surprises in the latestprofessiondata Operationgreenwash Whyclimatechange iscreating newpocketsof risk for lawyers Digitalaccountability What theOnlineSafetyBillwill mean foronline serviceproviders Bankruptcyorbust Thepitfallsofpursuingbankruptcy on thebasisofassessedcosts
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
Why lawyersare leading thepushtogobush inaCOVIDworld
PLUS: UPDATESONPROPERTY, INSURANCE,RISK,EMPLOYMENTANDMORE ...
Cover design: Alys Martin
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I began my career in the ‘80s, which was a pretty challeng- ing time for women in the profession. In general, we were paid less, we were regarded as “not committed” to our careers when we had children, and we weren’t awarded the equivalent opportunities to those given to male colleagues. Back then, we didn’t speak about “unconscious bias” be- cause there was nothing unconscious about it. Today, some 30-plus years later, the prospects for wom- en in our profession are so much brighter. I am proud of the many women and men who spoke out against those old attitudes and helped create change over the decades. As revealed in the recently published 2020 National Profile of Solicitors report, women solicitors now make up 53 per cent of all Australian solicitors and, for the first time, women solicitors now outnumber their male counter- parts in all states and territories. While the data is significant, for me, it’s the work that has been and continues to be undertaken for the advance- ment of women in the legal profession that is the real story. I am especially proud of the Law Society of NSW’s leadership in this space, in particular the ground-breaking Advancement of Women in the Legal Profession Thought Leadership Project in 2011 (the same year as the first Na- tional Profile of Solicitors was published), the establish- ment of the Diversity and Inclusion Committee and the development of the 2016 Charter for the Advancement of Women in the Legal Profession. After launching a revamped Charter this year, with new provisions to prompt signatories to establish procedurally fair and transparent sexual discrimination and harassment complaints processes, the number of law firms and legal
practices which have signed the Charter has jumped significantly. I am happy to say that hundreds of NSW law firms and legal practices, employing thousands of partners, lawyers and their teams, are now signatories. And last month, I launched a new portal on the Law Society website which deals solely with the issue of sexual harassment in the legal workplace, including steps you can take if you have experienced or witnessed sexual harassment, discrimination or victimisation. The portal has been well received by the profession, as has our new CPD workshop dealing with sexual harassment in the workplace and work- place culture. There has been a major cultural shift in the past decade in creating more female-friendly workplaces, and the COVID-19 pandemic has also accelerated flexible workplace arrangements (but that has also pre- sented other challenges such as juggling home schooling and childcare during a lockdown while working remotely). However, barriers remain. I firmly believe our profession needs to reflect the community we serve. We need to work to not just retain and accelerate women in the profession but ensure equality of opportunity for all members of the profession, regardless of race, ethnicity, heritage, gender, age, religion, disability, or sexual orientation. This means we all need to continue to work collectively, as a profession, to find ways to create more diverse, inclusive workplaces where everyone feels safe, secure and supported.
Juliana Warner , President, Law Society of NSW
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Mailbag LETTERS TO THE EDITOR
met her husband Denys, later the Hon Justice GD Needham of the Supreme Court of New South Wales, at university. She graduated LLB in 1955, and she and Denys were married in November 1957. From 1955 until 1961, she worked as a solicitor, first at Tribe Conway under her master solicitor the legendary Ken Tribe, and then at Allen Allen and Hemsley. She was the second woman employed as a lawyer by Allens. Her pioneering role in law was recognised by the granting of a life membership by New South Wales Women Lawyers, an honour shared by her daughter Jane Needham SC. Anne ceased working as a solicitor just before her son Sam was born in 1961, followed by Jane, Emma, William, and Matthew. After her children left home, she wrote, with her sister and two others, The Women of the 1790 Neptune , a collection of the life stories and legal his- tories of the women who were transported or came free on the Neptune, a ship of the Second Fleet. The book was based on her review of original trail doc- uments and, in some cases, she was able to use her legal training to assess whether the women had been appropriately con- victed or not, particularly where they were not given the benefit of presumptions which would otherwise provide a defence. Her interest in Australian con- vict history was sparked by her discovery that she was descend- ed, not from “early settlers” but from convicts. This interest, and the fact that her Best and Beckett ancestors lived near the family home in the Dural area, brought her to membership of the Dural Historical Society. She was a fine needleworker and knitter, made most of her clothes (including her beautiful wedding dress) and was a member of the Embroiderer’s Guild. Anne loved gardening and plants, and her rare blue hippeastrum (Worsleya procera) lives on at the Royal Botanic Gardens. She survived her beloved hus- band Denys by 24 years, during
which she travelled extensively and enjoyed her new life living in Bridge Street, Sydney. She was an active member of the Union, University and Schools Club. She attended Book Club there on a regular basis, and was able to comment on every book choice, whether she had read it or not. Her 12 grandchildren delight- ed her until her last days. She was endlessly interested in their lives and even during the 2020 aged care lockdown was able to talk to many of them over Zoom. She was much loved, and will be much missed, as a mother, grandmother, and role model. Jane Needham SC
ISSUE79 JULY 2021
ouworkwithflexibility. attermanagement, oneplatform
Question 5 in Cross-ex- amination LSJ April asks “Who is the current Chief Justice of the NSW Court of Appeal”. I think that the Chief Justice on NSW would be surprised to find that according to the answer given that he is. No doubt Justice Andrew Bell will be a little mied to be overlooked although he might be excited to find that he has been elevated to Chief Justice. He probably thinks that he is still WelcometoanextraordinaryeditionofLSJ. InhonourofNAIDOCWeek2021 and the theme ‘HealCountry!’,we are eecting acontent takeover. Inplaceof theusual, youwillfind anopen celebrationof Indigenous strength, resilience and talent.Wewillgrapple with the tough issues, showcase thedepth anddiversityof Indigenous legal leaders, tell the stories thatneed telling, and amplify the voices of those in theprofessionworking towardsmeaningfulchange. As LSJ does its smallbit toHealCountry, youwillfind in thesepages: Whatnowfortruthtelling? It’sbeen four long years since the launchof theUluru Statementfrom theHeart. AMYDALE speaks to thosewhocontinue topassionatelydrive it in the faceofpolitical stagnation. Canyouaskthat?RealtalkwithIndigenous lawyers Equity iswell andgood, in theory.Buthow far is the legalprofession from achievingeqitableoutcomes for IndigenousAustralians? KIRRILY SCHWARZ asks three Indigenous lawyers. Breakingtheprisoncycle IndigenousAustralians– includingchildren– aremassivelyoverrepresented in Australia’sprison system.KATEALLMANmeets ambitiouschange agents altering thenarrative forgood. TakingIndigenouspeopleo mute There areoften significant knowledgegapswhen itcomes tounderstanding Indigenous culture, and this all adds to lived trauma formany,writesTRENTWALLACE. Whopaystheprice? Thenumberof Indigenousdeaths incustody is still ashamedlyhigh. CRAIG LONGMANexplores theongoing tragedy in the faceof theBLMmovement and asks:who shouldbeheld accountable? Andmuchmore… 23/6/21 3:41pm
WRITETOUS: We would love to hear your views on the news.
the President. Bill Windeyer
Please note: We may not be able to pub- lish all letters received and we edit letters for style. We reserve the right to shorten the letters we do publish.
Vale Anne Needham Anne (Cunningham) Needham died on 21 May 2021 at Lulworth House, Elizabeth Bay, surround- ed by family. She was born in Murwillumbah in 1925, and was the daughter of John Cunning- ham and Phyllis Wood. As the daughter of a Commonwealth Bank branch manager, she lived in various towns such as Cairns, Singleton and Kempsey before moving to Sydney at the end of WWII. Her father encouraged her to look to support herself, as she was only 20 years old when the war ended, and he was of the view that there were not enough men left to ensure she would be able to marry, and so needed to be able to support herself. Taking on that advice, Anne studied law as one of only four women then at the University of Sydney Law School. Contrary to her father’s prediction, she
Vale John Spencer Butler John was born in Inverell in 1931 and died on 6 June 2021 at Inverell Hospital NSW aged 89 years. John was the son of FSC (Cli) and Gwen Butler. John’s early schooling was in Inverell, later at Shore (School House), North Sydney. John was a country solicitor at Borthwick and Butler Solicitors, Inverell, established in 1900. John’s grandfather, SJS (Spen- cer) Butler was in partnership with his cousin John Borthwick. Spencer graduated in law from the University of Sydney and did his articles (at a cost of 200 guin- eas) at Allen, Allen and Hemsley, Sydney. Spencer died in 1942. Cli practised from 1923 until his death in 1972. John practised at the firm from 1954 until 2001. His workload increased dramat- ically after his father’s death. A Butler has been in practice at the firm for 100 years and 11 of
CONGRATULATIONS! Bill Windeyer has won a limited edition LSJ x frank green™ cup. Please email: email@example.com for instructions on how to claim your prize.
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LETTERS TO THE EDITOR
“John was e cient and innovative and embraced technology with the latest dictaphone machines and studied computers at TAFE to aiding legal research.”
Spencer Butler’s descendants went on to study law. John commenced his articles, on a salary of 10 shillings ($1.00) per week, at Borthwick and Butler. He excelled in his exams and was able to get his Articles of Clerkship shortened so that at aged 21, John was admitted as the youngest practising solicitor in NSW. John did a stint as a regis- tration clerk for Rand, Drew, Villeneuve and Dawes, then as a locum at Condobolin for John Shields for 12 months. He then returned to Borthwick and Butler attending court of Petty Sessions, criminal matters and assisting his uncle, Guy Smith, with District Court matters. John also did wills and estates including death duties. He soon was managing complex matters, having an exemplary knowledge of statute law. His legal expertise included appearances in Wardens’ Court. He used his vast knowledge of mining law, for matters relating
to the rights of farmers, private ownership of minerals, mining leases and contracts with mining companies. This was especially so during the 1970s when there was a sapphire mining boom in the Inverell district. His work also covered mat- ters in Western Land Transfers, Riparian Rights, water allow- ances and licences, (re: the Wayland Creek matter before Sir Justice Laurence Street). Many Supreme Court matters relating to farming and State authorities (re: Croppa Creek matter). Suc- cession planning and mediation to resolve disputes, complex wills and estate planning, land division and transfer. He also briefed barristers for High Court and even for the Privy Council. John was an alderman on the Inverell Council and held many honorary positions on various organisations. So much so, as an alderman, he had to excuse from meetings due to a conflict of interest. John mentored students for
school debating teams and Apex public speaking, he established the Butler Public Speaking Award. John was efficient and innovative and embraced technology with the latest dictaphone machines and studied computers at TAFE to aiding legal research. John was a mentor to many law students including his wife Tiiu (admitted in 1992) and his daughter Tessa John was married to Tiiu for 58 years, and they have four children, Tessa (Newmarch), Matthew, Rowan and Saima (Grills), 10 grand-children and one great granddaughter. After retiring, John cherished time with his family and enjoyed reading, writing his memoirs, trekking, golf, tennis, snow-ski- ing, watching rugby and cricket, also travel throughout Australia and overseas. A life well lived and loved. Tess Newmarch and Tiiu Butler
How to submit your Expression of Interest? Further information about the application process, key dates and a copy of the response template are available at lawcover.com.au/paneltender About Lawcover Lawcover provides professional indemnity and management liability insurance to law practices in NSW, the ACT and NT, as well as to national law firms. Claims Panel Remit Lawcover’s Claims Panel works with insured lawyers on instructions from Lawcover’s highly experienced claims team. Together, they achieve cost-effective and timely outcomes in a manner that engenders confidence and respect in Lawcover’s claims handling process for insured lawyers. Applications close 5.00pm on 31 August 2021 Call for Expressions of Interest to join the Lawcover Claims Panel
ISSUE 80 I AUGUST 2021 I LSJ 11
Mailbag LETTERS TO THE EDITOR
THE RIGHT PATH IS NOT ALWAYS CLEAR Our Professional Support Unit can show the way Contact our experienced solicitors for confidential guidance on ethics, costs and regulatory compliance. lawsociety.com.au/psu
THE BLAKOUT EDITION
Christine O’Donnnell, LinkedIn Thank you @KateAllman_ and @
Looks amazing! So fortunate to be involved. Trent Wallace, LinkedIn Such a great concept Sonja Stewart … So good to see the Fiancè Emma Langton recognised along with other amazing lawyers who just so happen to be Indigenous. Raymond French, LinkedIn Looks great Sonja Stewart ! Looking forward to reading. Congratulations to all involved. Caitlin Gooden, LinkedIn Great initiative Sonja! The special edition looks super cool!
LawSocietyNSW for your latest edition of the #LSJ and for highlighting the work of #DeadlyConnections @keenan_mundine Deadly Connections Community & Justice Services, Twitter Thank you for bringing awareness to our work and why our programs/services are so important. Carly Stanley, LinkedIn Awesome Kate Allman thanks for the plat- form to share our Deadly work. Keenan Mundine, LinkedIn
12 LSJ I ISSUE 80 I AUGUST 2021
The more risks we take off the table, themore deals you can keep on it.
Find out howat
Hi Claire and Kate, You must both be thrilled about the latest oering – I was so happy to be featured twice. For me, it was a wonderful acknowledgement of the eort that goes into being the first and only in a role, it shows mob they can carve out a career that doesn’t exist yet! It’s tough, but this kind of acknowledgment makes my heart happy. Trent Wallace, Ashurst First Nations Advisor and Lawyer
Kate, your Deadly Connections article is the best I’ve read on LinkedIn this year! I just reached out to Keenan as I organise a couple of charity events each year and the next in a March will have an indigenous kids focus. Hopefully I can add them to the list of beneficiaries. Having knocked around local courts in my time and representing indigenous kids I know the challenges all too well. What an amazing initiative Deadly Connections is. Well done for raising awareness! Andrew Price, Managing Principal, PSC Insurance
ISSUE 80 I AUGUST 2021 I LSJ 13
Newonline hub aims to stamp out sexual harassment
The Law Society of NSW has launched a new online portal to arm legal professionals with tools and resources to help fight sexual harassment at work.
e portal will be housed on a publicly accessible website, branded the Sexual Harassment in the Law portal, and is ex- pected to be a key tool for victims and bystanders who are experiencing, report- ing or otherwise responding to sexual ha- rassment in legal workplaces. It will provide links to training pro- grams for lawyers and rms on identify- ing and responding to harassment, guid- ance on how to report it via the NSW Legal Services Commissioner, links to mental health support, and resources that shed light on sexual harassment and initiatives aimed at addressing it. “I feel strongly about keeping the spotlight on this issue and continuing to nd ways to create more open workplac- es, backed by the appropriate policies, reporting processes and support, and ultimately empower victims to speak out without fear of negative repercussions,” said President of the Law Society of NSW Juliana Warner on 12 July, the day of the portal’s launch. “Everyone has the right to feel safe and supported in their workplace.” e portal is the most recent
report found as many as one in two fe- male lawyers and one in three male law- yers had been bullied at work. One third of female respondents to the survey said they had experienced sexual harassment at work, while one in 14 men had. President Juliana Warner has been a longstanding advocate for eliminating bullying and harassment. She was Syd- ney managing partner of top-tier rm Herbert Smith Freehills between 2012- 2020, during which time she helped to establish the Law Society’s Diversity and Inclusion Committee in 2017 and was instrumental in developing the profes- sion’s Charter for the Advancement of Women, which this year added a new provision to prompt signatories to es- tablish procedurally fair and transparent sexual harassment complaints processes. “As an association that represents 43 per cent of Australia’s solicitors, we have a responsibility to be part of the solution and ensure that victims can speak out against unacceptable behaviour in the knowledge that it will have severe con- sequences for the perpetrator, and not them,” said President Warner.
development in a series of projects theLawSocietyofNSWhaslaunchedtotry to eradicate sexual harassment in the legal profession. e NSW-based membership body, which represents the largest legal professional association in Australia, has in recent years authored thought-leading reports, published podcasts and hosted events designed to shine a spotlight on the issue and encourage lawyers to be part of the solution. Much of the Law Society’s recent work has been propelled by a report the International Bar Association published in 2019, based on a survey of almost 7,000 lawyers in 135 countries. e be part of the solution and ensure that victims can speak out against unacceptable behaviour.” “As an association that represents 43 per cent of Australia’s solicitors, we have a responsibility to
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NEWTHISMONTH Specialist Accreditation Conference 2021 Due to NSW Health guidelines, the Specialist Accreditation Conference 2021 will be held online on Thurs- day 5 August. Join us virtually for an exciting line-up of speakers and topics presented by Accredited Specialists, academics and experts in your field, including an opening keynote address from Dr Jacoba Brasch QC, President of the Law Council of Australia. Regis- ter at: lawsociety.com.au/specacc2021 Treat yourself in lockdown with Dining RoomDelivers Dining Room Delivers is still serving up delicious weekly hampers, available for delivery in the Sydney metropolitan area. All food is made and assembled by our master chefs and profits from every order go to the 2021 President’s Charity, Dementia Australia Research Foundation. Order at: lawsociety.com. au/dining-room-delivers Risky business? The working fromhome phenomenon Most of us are now working from home, but are any of us doing it right? Tune in on Wednesday 11 August as we explore the remote working phe- nomenon and the challenges it brings, including privacy and confidentiality issues, supervision for staff, and how employers and employees can best manage their obligations and respon- sibilities. Register at: lawsociety.com. au/risky-business This month Just Chat (virtually) sits down with Amani Haydar: lawyer, artist, mother and advocate for wom- en’s safety. Amani has just released her debut book The Mother Wound , ex- ploring the aftermath of her mother’s murder at the hands of her husband, Amani’s father. Search “Just Chat” in your preferred podcast player. Just Chat with Amani Haydar
DeliaDonovan CEO, Domestic Violence NSW
The UN described domestic and family violence as the shadow pandemic during COVID-19. No time is more important than now.
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sixminuteswith KRIPI BHATT
Kripi Bhatt is Legal Counsel at CPB Contractors. Prior to moving to Australia, she worked at a top commercial law firm in India in the banking and finance sector. Despite her extensive experience, Bhatt struggled to find work when she first arrived in Australia. Now employed by a leading construction company, Bhatt tells FLOYD ALEXANDER-HUNT about her career and the committee she’s set up to support foreign qualified lawyers migrating to Australia. Tell us about your upbringing? I grew up in a small town in the center of India. To give you an understanding of how small it is, malls were only built there a couple of years ago. There were not many opportunities grow- ing up. I decided to do law because in India you see extreme human rights issues every day and I wanted to help. Fortunate- ly, I was able to get into one of the top 10 law schools in India and from there I was placed in a top-tier law firm in Mumbai. I’m a first-generation, female, foreign qualified, Indian lawyer working in Australia. Being a woman in construction adds an- other dimension. I make sure I’m extra prepared, even if it’s the simplest of meetings, to subvert any potential presumption. It is an extremely interesting industry and working with CPB Contractors, I get to be part of the most iconic projects in Aus- tralia. Even in 50 years, I’ll be able to tell my kids “I worked on that”. When I first arrived in Australia and started applying for jobs, recruiters told me “you will never get a job” or “why don’t you just change your career?” I applied for hundreds of legal jobs and was rejected from almost all of them. Despite having ex- perience at a top-tier law firm in India I was rejected on the basis that I had no local experience. But how was I meant to obtain local experience when no one was willing to give me an opportunity in Australia? What is it like working as a lawyer in the building and construction industry? What has been a particular obstacle you have had to overcome?
Tell us about the Foreign Qualified Lawyers Sub-Committee
The Foreign Qualified Lawyers Sub-Committee is a group I founded within the NSW branch of the Asian Australian Lawyers Association (AALA). It’s for overseas lawyers who come to Australia and have to re-qualify and break into the legal profession. I created this sub-committee because I lacked mentorship when I arrived in Australia. I wanted to create a network for foreign lawyers and equip them with the skills they need to adapt to the Australian legal market. I want to grow this group and bring awareness to the struggles and barriers foreign qualified lawyers face. What has been your career highlight? I am really proud I am now qualified in two different juris- dictions and that I overcame the identity crisis I had when I first moved. I’ve been able to move from a one day a week position into a full-time role in a top-tier construction com- pany. I’ve also set up a committee where I can help foreign qualified lawyers. I’m passionate about getting people to talk about the issues foreign lawyers face as it has largely been ignored in Australia until now. What do you like to do in your spare time? I love reading. I’m someone who usually has five books going at any one time. I also enjoy bushwalking, so I try and go up to the Blue Mountains and catch a sunrise every now and again. Every year I also try and learn a new skill. Last summer, I learnt surfing and this year I’m looking to go skiing.
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DEATHS INCUSTODY Pleas for reformafter another Indigenous death in custody
The family of an Indigenous man who died in custody last month has demanded answers about his final hours, as the CEO of the Aboriginal Legal Service noted “it’s devastating … to have this conversation with yet another Aboriginal family”. Frank “Gud” Coleman, a 43-year- old Ngemba man, was found dead in his cell at Long Bay prison on July 8. He is one of at least 478 Aboriginal people to die in prisons and police incidents since the Royal Commission into Aboriginal Deaths in Custody, and the ninth In- digenous person to die in custody since March this year. An inquest will deter- mine the cause of death. His family had been unable to see him for around 18 months, due to COVID-related restrictions on in-person
visits. Coleman was also moved between prisons a few times, including to facilities several hours from Sydney and a require- ment to quarantine upon arriving in a new facility. “We understand he didn’t have any vis- itors for several months and that’s an ag- onising period of time to go without any physical contact with your siblings, your parents, your children,” his ex-partner, and the mother his children, Skye Hip- well said in a statement. “Frank always said he was not a free man, he was living under a white man’s law, and it breaks my heart that he died not a free man. He died alone in a jail cell and no one knows any- thing about his last minutes.” CEO of the Aboriginal Legal Ser- vice NSW/ACT Karly Warner said in a
statement: “Each time an Aboriginal per- son dies in custody, the lives of their fam- ily members and entire communities are changed forever. “The trauma is some- thing they carry every day,” Warner said. “It’s devastating beyond measure to have this conversation with yet another Aboriginal family whose loved one has died alone behind bars. “Earlier this year Australia marked the 30th anniversary of the Royal Commis- sion into Aboriginal Deaths in Custody. Yet federal and state governments refuse to conclude the Royal Commission’s un- finished business. Life-saving recommen- dations remain on the shelf while people like Frank suffer lonely and preventable deaths.” A coronial inquest will be held at a later date.
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COMMUNITY LEGAL CENTRES NewFirst Nations cadetship program in community legal centres
The NSW government has announced it will offer $200,000 in scholarships to fund Aboriginal and Torres Strait Is- lander university students to gain work experience in community legal centres (CLCs). The new First Nations Cadetship Program will offer four $50,000 schol- arships to enable university students to gain training and mentoring as they un- dertake cadetships at four CLCs across NSW. It is being touted as a “one-off cadetship program” open to Aboriginal students in the final two years of a degree in law, social work, community develop- ment or communications. The cadetships will be funded by the Commonwealth Government and ad- ministered by Legal Aid NSW. “The cadetships will offer crucial work experience for these promising young students, providing them with opportu- nities to kickstart their careers,” NSW Attorney-General Mark Speakman said. “Strengthening the cultural under- standing of CLCs will boost access to justice for First Nations people.” The scholarships aim to bolster the numbers of Indigenous Australians Deputy Chief Magistrate Jane Mottley AM will be sworn in as Senior Judge of the NSW Drug Court when his Honour Judge Roger Dive retires this month. NSW Attorney-General Mark Speak- man said Deputy Chief Magistrate Mot- tley would be an “ideal candidate” to fill the position, and “brings a wealth of knowledge and skill to the role”. “Her Honour’s warmth, insight and intelligence will be invaluable to an area of justice system which has a proven
entering the legal profession – where the proportion of First Nations lawyers is substantially lower than their representa- tive proportion across the broader popu- lation. The program will also help CLCs meet commitments and access to justice and employment outcomes under their Reconciliation Action Plans. “Cadets will undoubtedly bring knowledge, skills and expertise that will strengthen our services. These cadet- ships will have many benefits, including providing vital work experience to First Nations students and encouraging ca- dets to think about a career in CLCs,” said CLCNSW Executive Director Tim Leach. CLCNSW will employ one part-time Aboriginal staff member to facilitate the scheme, and cadets will receive training and mentoring from the CLCNSW Ab- original Advisory Group. Eligible CLCs must already employ at least one First Nations staff member, who may also provide the cadets with in- formal mentoring support. Applications are expected to open in the second half of 2021.
These cadetships will have many benefits, including providing vital work experience to First Nations students and encouraging cadets to think about a career in CLCs.” CLCNSW EXECUTIVE DIRECTOR TIM LEACH.
COURTS New judge to leadNSWDrugCourt
record of turning lives around,” Speak- man said. Deputy Chief Magistrate Mottley was admitted as a solicitor in 1989 and became a magistrate in 2000. She has served on the bench of the Children’s Court, in Local Courts, and has been an acting judge of the District Court since 2017 while presiding as a judge of the Drug Court. She will step into the imposing shoes of Judge Roger Dive, who led the
specialist Drug Court in NSW for 17 years. Under his watch the Drug Court program assisted in lowering the reof- fending rate of participants in the pro- gram by up to 17 per cent, according to a 10-year BOCSAR study published in 2020. Judge Dive has been the father of the Drug Court and it’s an honour to be able to continue his work. I hope I can achieve as much as him in the time that I lead the court,” Deputy Chief Magistrate Mottley said.
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DEFAMATIONREFORM Defamation reforms finally become law; stage two reviewbegins
A full year since NSW parlia- ment passed long-awaited up- dates to its defamation laws, the changes finally came into effect on 1 July. Australia’s defamation laws have been nationally consis- tent since the first sweeping reform of defamation was passed back in 2005. NSW became the first jurisdiction to pass updated reforms to those laws last year, but held off proclaiming the chang- es into effect as it waited on other states to make the same, nationally agreed, changes in their own legislation. In July 2020, the Coun- cil of Attorneys-General had agreed that each jurisdiction
other states so long.
“For reasons that escape me, a number of jurisdic- tions have found it difficult to copy and paste. But NSW, Victoria, Queensland, South Australia and the ACT all brought in the changes on the first of July. The remaining jurisdictions have agreed they will catch up as soon as possi- ble,” he said. The Meeting of Attor- neys-General in March re- leased a discussion paper for the second stage of the reform project, focusing on reviewing online defamation, including via search engines and social media. Submissions are cur- rently being reviewed.
would act as quickly as pos- sible to introduce the Mod- el Defamation Amendment Provisions in their respective parliaments. A year later, after spending months in a holding pattern,
NSW Attorney-General Mark Speakman announced the reforms would commence on 1 July. He told LSJ he had been puzzled as to why the “copy and paste” process was taking
BY LINDEN BARNES, SENIOR ETHICS LAWYER
What do the different jerseys mean in the Tour de Solicitors?
Green Jersey typically won by sprinters. In our Tour, that would be the efficient solicitor who doesn’t waste any- one’s time, particularly not the court’s. Polka Dot Jersey The king of the mountains. Think of those massive mountains in the Pyrenees and the struggle of the riders to get to the top. We win this award when we struggle through the different client gradients, all of them steep, and come out ethi- cally unscathed. Most combative Combativity might be acceptable in sport, but it is not
For those of us who were able, last month, to juggle watching the Tour de France while enjoying the Barty Party to while away lockdown hours, here is the ethical guide to the cycling jerseys that we solicitors might win. Yellow Jersey The solicitor we all want to be, standing on the podium of respect under the Arc de Triomphe. We are courteous to all. We do not take ad- vantage when a colleague falls off their bike. We do not need a repair kit for our promises. The administration of justice is safe in our hands.
acceptable for solicitors. This is the so- licitor who is discourteous, who does not stand apart from their client’s emotional state but rather becomes party to it. They communicate with our client and they threaten to report us. Not the prize to win. The Tour de Solicitors is gruelling, but the scenery of those mountains and coastlines and chateaux is magnificent. Our prize is more enduring than any paper Certificate of Title. Your commentators here at the Eth- ics Department wish you a good ride in these difficult times.
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CONSTITUTIONAL RECOGNITION ‘Amatter of priority’: LawSociety calls for referendumonUluru Statement
The Law Society of NSW and NSW Young Lawyers have called on the Com- monwealth Parliament to commit to a timetable for a referendum on implement- ing the Uluru Statement from the Heart. Law Society of NSW President Juliana Warner and NSW Young Lawyers Presi- dent Simon Bruck launched a joint state- ment on the issue at a virtual event cel- ebrating NAIDOC Week in July, which featured Professor Megan Davis – one of the architects of the Uluru Statement – as guest speaker. “Australia is one of only a handful of Commonwealth nations that still doesn’t have a treaty with its Indigenous peo- ple,” said President Juliana Warner in opening the event. “The Law Society and NSW Young Lawyers fully support the
implementation of the Uluru Statement. We are now calling on the Commonwealth Parliament to set a timetable on a referen- dum on this issue as a matter of priority.” The Uluru Statement from the Heart was issued in 2017 on the 25th anniver- sary of the High Court’s Mabo decision on native title rights and calls for a change to the Constitution to give First Nations Australians a voice in the laws and policies made about them. Professor Megan Davis, Pro Vice-Chancellor Indigenous and Professor of Law at UNSW, spoke about the State- ment during a virtual conference event held on 6 July, as she answered questions posed by the Law Society of NSW CEO, Yuin woman Sonja Stewart. “It’s very hard to heal country when
you don’t have rights to or over the land, and when you’re not consulted in deci- sions over the land,” she said, responding to the theme of 2021 NAIDOC Week – “Heal Country”. “We’re asking for a constitutionally enshrined voice so that the power of our constitution compels our people to be at the table.” The joint statement published by the Law Society of NSW and NSW Young Lawyers also approved the establishment of a Makarrata Commission to supervise the process of agreement-making and truth-telling about Indigenous history. Makaratta is an Indigenous Yolngu word meaning a coming together after a strug- gle, facing the facts of wrongs and living again in peace.
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
Anna Lindeman- Jones Promoted to Senior
Shanna Protic Dib Promoted to Senior
Kate Blunden Promoted to Senior
Lee Cone Promoted to Senior
Alex Betancor Promoted to Special Counsel Holman Webb Lawyers Sydney
Stephanie Carter Promoted to Senior Associate Holman Webb Lawyers Sydney
Mark Logan Promoted to Associate Holman Webb Lawyers Sydney
Funda Karabacak Promoted to Associate Holman Webb Lawyers Sydney
Tilly Herbert – Smith Joined as Lawyer Edwards Family Lawyers
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ENVIRONMENTAL LAW LawCouncil names young environmental lawyer of the year
e Law Council of Australia has named Perth lawyer Jess Hamdorf as winner of its annual Mahla Pearlman award for the Australian Young Environmental Law- yer of the Year. Hamdorf is an associate at Glen Mc- Leod Legal, a planning and environmen- tal law practice, and she volunteers with the National Environmental Law Asso- ciation both at a national and local level. Law Council President Jacoba Brasch QC said the award also recognised her “sustained commitment” to the Mur- doch University Law School, for pre- senting and preparing course materials in environment law and for being a tutor for ve years. Robyn Glindemann, Chair of the
Australian Environment and Planning Law Group, said “the commitment of people like Ms Hamdorf, who volunteer their time so generously over many years all while managing their own practice and the needs of their law rm clients, allows organisations like NELA to ourish thus bene tting the profession as a whole.” e Mahla Pearlman Award is named in honour of the former Chief Judge of the Land and Environment Court of New South Wales, and former President of the Law Council of Australia, the late honourable Mahla Pearlman AO. e recipient is a young lawyer who has made a signi cant contribution to envi- ronmental law and to the legal and wider community.
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LEGAL INNOVATION Artificial intelligence to help themost vulnerable navigate justice Two projects will improve access to justice for vulnerable people, thanks to new funding grants under the NSW gov- ernment’s Innovation Fund program. Not-for-profit organisation Justice Connect and the Uni- versity of Sydney will share in $250,000 in funding under the government’s Access to Justice Innovation Fund, which provides investment in artificial intelligence (AI) technology to address legal problems. Justice Connect will receive $174,000 to build a language processing model to help an estimated 50,000 people across the state who lack the legal literacy they may need when searching for resources and services online. The University of Sydney will use its $76,000 to develop a fairer assessment model for parents with a cognitive disability involved in care proceedings before the Children’s Court. NSW Attorney-General Mark Speakman said in a state- ment: “Everyone is equal in the eyes of the law and the sys- tem must be fair to all those who come into contact with it.” “These cutting-edge projects will help people with a dis- ability, seniors, Aboriginal people and those from culturally and linguistically diverse backgrounds understand and exer- cise their legal rights,” Speakman said. Justice Connect CEOChris Povey said “we hope our proj- ect can serve as an example of AI for good and can ultimately be used by legal organisations across the justice sector”. Povey said his team will gather thousands of language samples from diverse groups in NSW to incorporate into the AI model’s training. Susan Collings from The University of Sydney’s Research Centre for Children and Families said their funding would help parents with an intellectual disability, who statistically are more likely to lose their child to statutory care but must “have a right to equal access to justice”. “Shifting professional beliefs and practices is the black box that this project seeks to unlock,” Collings said. The Government has pledged $1 million over four years to the Fund, with applications for the next round to open later this year.
For the full round-up of Law Society advocacy, see page 66.
Privacy amendments and a newmandatory noti- fication of data breach scheme The Privacy and Data Law Committee contributed to a letter to the Department of Customer Service on the draft Privacy and Personal Information Protection Amendment Bill 2021, which would establish a mandatory notification of data breach (‘MNDB’) scheme in NSW. The letter noted that we strongly support the introduction of a mandatory reporting scheme for data breaches in NSW by public sector agencies, and that, so far as possible, such a scheme should mirror the Common- wealth MNDB scheme. The letter also noted a number of issues, including that the Government should consider addi- tional mechanisms to enhance data protection by encouraging a focus on a ‘just culture’ (shared accountability) approach to managing security of personal information. Proposed condition for the disbursal of donated funds following disaster appeals The Business Law Committee contributed to a submission to the Minister for Better Regulation and Innovation, endorsing comments made by the Charities and Not-for-Profit Committee of the Legal Practice Section of the Law Council of Australia, on a proposed fundraising condition requiring disbursal of donated funds following disaster appeals in NSW. The submission expressed concern that the proposed condition may have negative consequences, as demonstrated by the recent review of fundraising by the Australian Charities and Not-for-profits Commission (‘ACNC’) in its report on the Bushfire Response 2019-20, and the findings of the Royal Commission into National Natural Disaster Arrangements (Royal Commission) on fundraising and distribution of donated funds in its Report. ALRC Consultation Paper on Judicial Impartiality The Public Law and Diversity & Inclusion Committees contributed to a submission to the Law Council responding to the ALRC’s consultation paper. The submission consid- ered that the three main issues to address are the relevant test for apprehended bias, the appropriate procedure for hearing disqualification applications and the systemic matters that ought to be dealt with to support judicial impartiality. The submission supported the thrust of the consultation paper, but suggested caution in seeking to reform the procedural aspects of disqualification application hearings, noting that any reform would have to demonstrate that it was an improvement of the current system with respect to the balancing of the public interest and the inter- ests of litigants.
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