LSJ - August 21015
JENNIFER ROBINSON ON WHAT’S BEEN KEEPING HER BUSY SINCE ASSANGE
VICARIOUSTRAUMA HOW LAWYERS ARE HARMED BY EXPOSURE TO PAIN AND SUFFERING
APROJECT FROMTHEHEART INNOVATION LEADS CHANGE IN DUBBO DON’TBLAME THE JUNIORS WHY SENIOR LAWYERS NEED TO STEP UP E-CONVEYANCING: THE VERDICT USERS REACT TO THE NEW SYSTEM SUFFERING INSILENCE BEHIND THE BORDER FORCE ACT
Of One Substance : Painting & Place Works by Pijaji Peter Skipper From the Collection of the late Duncan Kentish 25 - 29 August 2015
1 LSJ I JUNE 2014 The Depot Gallery 2 Danks Street Waterloo NSW 2017 m +61 (0) 414 873 597 email@example.com greeradamsfineart.com
I n my address at the Opening of Law Term in February, I outlined a program of engagement on ethics in the legal profession and beyond. As part of this, the Law Society will host a one-day conference focussing on the relationship between ethics and public policy governance. e Re ections on Corruption conference on 29 August will include a keynote fromWashington State University academic Professor J Patrick Dobel. Professor Dobel, who is an expert in leadership, ethics and public management, will be joined by high-pro le panellists for a detailed discussion of the role of anti-corruption agencies and ethics in Australian institutions. Visit rocc2015.com.au for more information. At the Access to Justice and Pro Bono Conference in Sydney in June, 2015 Australian of the Year Rosie Batty spoke with great courage and conviction about her dedication to raising public awareness around the issue of family violence. As a profession, we are in a position to support measures that contribute to the reduction of domestic violence in the community. e NSW Government will soon be piloting a Domestic Violence Disclosure Scheme, allowing a person who has concerns about his or her partner to make an application to the NSW Police Force for information on whether their partner has a history of domestic violence. e Law Society supports measures that will help prevent domestic violence and keep victims safe. However, the government has not provided any evidence that individuals who think they may be at risk of domestic violence, or who are experiencing domestic violence, will choose to leave a relationship due to knowledge of previous o ending. e Law Society is of the view that the goal of preventing domestic violence and assisting victims is best served through directing resources at outreach, awareness, and the provision of specialist services that are appropriate to the needs of speci c groups. A petition signed by local residents in Moree was tabled recently in the NSW Parliament asking for the Magistrates Early Referral into Treatment (MERIT) program to be introduced in the town. MERIT is a pre-sentencing diversionary program for adult defendants with substance abuse problems in the Local Court. e Bureau of Crimes Statistics and Research has shown MERIT reduces the proportion of those reconvicted of any o ence by 12 per cent. In July, the Society called for the statewide rollout of the program. Finally, as part of our Advancement of Women project, we are holding a range of breakfast forums on “Women and Leadership”. Our 2015 forum series begins in August. Visit lawsociety.com.au/ oughtLeadership for more.
AUGUST 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
It’s hard being a lawyer. We all know it. I have no doubt that most lawyers have, at some stage, found their role extremely challenging, for a variety of reasons. Whether it’s the conditions under which we practise – the long hours, the relentlessness of billable units, the high demands of clients, or the intimidating spectre of the court system – or the nature of the work we do, working as a solicitor can be tough. In this issue, LSJ reporter Kate Allman delves into the topic of vicarious trauma in ‘ e Cost of Caring’ on page 38. In it she reveals the high cost many lawyers pay for becoming deeply invested in their cases, for reliving the pain and su ering of their clients, for simply caring too much. Or, in other words, for doing their job. e feature blows open a problem that is too often taken as “normal” in the profession, with many practitioners su ering in silence because work-related trauma and distress are simply seen as part of the job. It’s an important story for the very fact it shows that this is not something su ered in isolation – it is a common experience in the law and one we should confront head-on.
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
Michael Nguyen Photographer Jason McCormack Administration O cer Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 e 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 speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e 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 Cha ey
Senthorun Raj is a PhD candidate at Sydney Law School and a forthcoming visiting doctoral fellow at NYU Law School. He writes about the implications of the same-sex legislation in the US Supreme Court. Global focus p22
Julie McCrossin is a writer and
Lee Holmes holds an Advanced Certificate in Food and Nutrition, teaches yoga and is author of the Supercharged Foods series. She gives the lowdown on keeping the gut healthy. Health matters p56
Alex Baykitch is a partner at King & Wood Mallesons and President of the Australian Centre for International Commercial Arbitration. He co-writes with Aleks Sladojevic on ChAFTA & investor-state dispute settlement mechanisms Legal updates p74
trainer who studied law. She travelled to London to interview solicitor Jennifer Robinson, one of the lawyers representing Julian Assange. A woman of influence p26
Cover photograph: Newspix
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 SEPTEMBER 2015
24 HOTTOPIC Why senior lawyers need to take responsibility for adequate mentoring of their juniors 26 COVERSTORY Julie McCrossin meets high- profile human rights lawyer Jennifer Robinson to discuss her career and recent work representing Julian Assange 32 INFOCUS Husband and wife Nikki and Tim Lester speak about their role as partners launching the new Australian presence for global firm Hogan Lovells
34 AUGUSTOFFENSIVES Tony Cunneen details the tragic story of one NSW solicitor at Gallipoli and beyond 38
Why a healthy gut is imperative for brain and immune functions 58 POSITIVECULTURE Rachel Setti explains how strong core values can be much more than corporate rhetoric 60 CITYGUIDE Where to eat, sleep and play in Oslo – Claire Chaffey explores the delights of Norway’s cosmopolitan capital 64 YOUWISH
THECOSTOFCARING Kate Allman reports on the troubling trend of secondary psychological trauma for lawyers 52
EXTRACURRICULAR Jane Southward meets Andrew Chalk, a Sydney lawyer who is the brains behind an innovative social program 54 YOGAANDWEIGHTLOSS Is it possible? Joanna McMillan investigates
Canberra’s incredible Jamala Wildlife Lodge
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8 MAILBAG 10 BRIEFS
45 CAREER101 48 ADAY INTHELIFE A young law student spends a day as a criminal lawyer 50 PRACTICE MANAGEMENT Creating e-databases for related litigation matters 52 EXTRACURRICULAR 66 LIFESTYLE The latest in books and events 95 LIBRARYADDITIONS
68 ADVOCACY: THE LATEST IN LAWREFORM 71 RISK: LEGAL vs FINANCIAL ADVICE 72 REGULATORY: UNIFORM LAW & TRUSTS 74 ARBITRATION: FREE TRADE DISPUTES 77 TAXATION: HIDDEN STINGS IN WILL-MAKING 78 MIGRATION: BORDER FORCE CONTROVERSY 80 FOI: THE NEW AAT MEGA-TRIBUNAL 82 INTERNATIONAL: TREATY-MAKING 84 FAMILY: JUST & EQUITABLE PRINCIPLES 86 COSTS: PROPORTIONALITY IN ASSESSMENTS 88 INDIGENOUS: CULTURE & HERITAGE 90 ANIMALLAW: LEGAL PERSONHOOD 92 PROPERTY: E-CONVEYANCING Q & A 94 PLANNINGLAW: DEVELOPING CROWN LAND 96 CASENOTES: CRIMINAL, FAMILY &WILLS
News and events from the legal world
10 PROFESSIONAL NOTICES 17 FROMTHEARCHIVES 19 CAREERMOVES Who moved where this month
20 OUTANDABOUT 22 GLOBAL FOCUS Examining the US
Supreme Court stance on marriage equality
New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle
How in-house lawyering compares with private practice
AUGUST 2015 I LSJ 7
LETTERS TO THE EDITOR
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: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Charles Stanford has won lunch for four.
Worth a read Thanks to Nicholas Cowdery and the LSJ for the article on Magna Carta ( LSJ , June 2015). Readers may be able to find a book entitled 1215: The Year of Magna Carta , which was published a few years ago. The book gives a wide snapshot of British life some 800 years ago. It is an interesting read and worth seeking out. Keith Osborne Halton via East Gresford Ed note: The Society library confirms it has books on legal history for members to borrow.
Lawyer wants a lunch date? Little wonder that Erin Eckhoff’s letter ( LSJ , July 2015) won lunch as your favourite letter, since hers was the only one published! Incidentally, when there’re only three to four letters printed, why not offer complimentary lunches for the writers alone to share together and, if more than four, the same to apply for your favourite four letters? I look forward to a lunch, on the house, in the Law Society dining room in August!
THEEPIDEMICCHANGINGOUR LEGALANDSOCIALFABRIC ICE,VIOLENCE ANDJUSTICE
WIVESANDWARRIORS HOWAUSTRALIANWOMENFOUND THEIRVOICEDURINGWWI
7ETHICSNIGHTMARES YOUDIDN’TEVENKNOWYOUHAD BURSTINGATTHESEAMS THESHAMEFULSTATEOFNSWPRISONS TERRORANDCITIZENSHIP ANANALYSISOFGLOBALTRENDS CAPACITYANDLITIGATION ABLUEPRINTFORREFORM INNSW
Edward Loong Milsons Point
Tuesday 1 September 2015
9.00am – 5.15pm
Sheraton on the Park, Sydney
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This seminar is proudly sponsored by:
Book online: lawsociety.com.au/GSC2015
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Pricing pain After paying $350 for the privilege of spending 40 minutes in my dentist’s chair, I reflected on the disparity with our remuneration for, and time we spend on, a conveyance. We are selling ourselves too cheaply. Charles Stanford Stanford Lawyers Is the law an ass? For the information of those practising on the border of New South Wales and Victoria … There appears to be unintended consequences of the NSW Mandatory Alcohol Interlock Program, which
the number of solicitors in that state, but the figure they have for current members is 3,500. Since they have a fused profession in South Australia it would appear that this includes barristers, but this is not likely to be large in number. In short, it would seem that the number of solicitors in South Australia is likely to be in the thousands rather than just 588. Perhaps you might consider including some type of correction in next edition. Phillip C. Roberts, PCR Law & Associates Sydney Ed note: Right you are, Phillip – the figure should be 3,588.
came into force on 1 February 2015. Here’s an example: - Victorian driver – second PCA in the past five years – low range PCA – convicted. - Disqualified for a minimum period of one month with minimum interlock period of 12 months. - Completes disqualification period. - Applies for NSW interlock device and interlock licence. - Victorian resident cannot obtain NSW interlock licence. - Now deemed to have failed to complete the interlock
period and disqualified by Vic Roads from holding a licence for five years. The ultimate Catch 22. Andrew P. Melville, Corowa More firms than lawyers in SA? I understand that you welcome feedback about the LSJ . I certainly enjoy reading it and I like the new format. However, on page 13 of the June edition you have a chart showing the state-by-state statistics for solicitors. For South Australia, the figure given is just 588 (even though the figure given for firms is 876). I was not able to find the statistic for
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The future of federalism discussed Sociologist and cultural commentator Professor Eva Cox AO, Dr Doug McTaggart of the Commonwealth Reform of the Federation Expert Advisory Panel, and constitutional experts Professor Cheryl Saunders AO and Professor Lynch discussed their visions for the future of federalism at the Thought Leadership event at The Law Society of New South Wales in July. For information on upcoming Thought Leadership events visit
PUBLIC INTERESTCAREERSFAIR More than 300 law students attended the NSW Young Lawyers Public Interest Careers Fair at the Law Society of NSW on 9 July. Edward Santow, Chief Executive Officer of the Public Interest Advocacy Centre (and pictured below, top left), spoke about his experiences working in the public interest sector. Many of the attendees were members of the Australian Law Students Association, which supported the event. The fair brought together a variety of public interest organisations, government departments and community legal centres so that law students and graduates could access information about a diversity of career paths that they may wish to pursue upon graduation. Among the organisations and government departments that attended the event were the Public Defenders’ Office, the Commonwealth and State Departments of Public Prosecutions, Beyond Law, and Salvos Legal.
Prof Cheryl Saunders (top) and Prof Eva Cox.
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CALLFORSTATEWIDEROLLOUTOF SUBSTANCEABUSEPROGRAM The Law Society of NSW has called for the statewide rollout of a rehabilitation program that targets adult defendants with substance abuse problems. Law Society President John Eades said the Magistrates Early Referral into Treatment (MERIT) program allowed eligible motivated defendants to receive supervised treatment and rehabilitation as part of their bail conditions. “The MERIT program has been shown to be a highly e ective pre-plea diversionary program that specifically targets the underlying cause of many crimes, namely substance abuse,” Eades said.
“The Law Society considers that the demonstrated success of MERIT in reducing recidivist behaviour, and the associated benefits this creates for the community, justifies the allocation of substantial resources to the program to enable it to be available throughout the entire state.” JOHN EADES
“The program helps o enders address their substance abuse problem, which is really important in terms of breaking the substance abuse-crime cycle. “Defendants assessed as suitable for MERIT undertake supervised treatment as part of their bail conditions, and a magistrate is then able to consider the defendant’s progress in treatment as part of final sentencing.” Eades said research by the Bureau of Crime Statistics and Research (BOCSAR) had shown that MERIT was successful in reducing rates of reo ending. “BOCSAR found that completion of MERIT reduces the proportion of those reconvicted for any o ence by 12 per cent,” Eades said. A petition signed by residents of Moree was tabled in the NSW Parliament during the last sitting asking for the MERIT program to be introduced to the Moree Local Court. “The Law Society considers that the demonstrated success of MERIT in reducing recidivist behaviour, and the associated benefits this creates for the community, justifies the allocation of substantial resources to the program to enable it to be available throughout the entire State,” Eades said.
AUGUST 2015 I LSJ 11
PROFESSIONAL NOTICES On 18 June 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Ronald M Fluit Solicitor, formerly conducted by Ronald Marinus Fluit. On 18 June 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as MER Legal Pty Ltd, formerly conducted by Michael Edward Rogers. On 18 June 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Tereze V Dzitars, formerly conducted by Tereze Vilhelmina Dzitars. The Council of the Law Society of NSW, at its meeting on 18 June 2015, resolved to suspend the practising certificate of Michael Edward Rogers pursuant to Section 60(1) of the Legal Profession Act 2004 to 30 June 2015.
Pro bono legal experience will now be compulsory for students studying law at the Australian Catholic University’s Thomas Moore Academy of Law.
The pro bono program requires ACU Thomas Moore students to complete a minimum of 240 hours (equivalent to 30 days) of professional experience over the course of their degrees. While most universities offer course credit for optional work experience, the compulsory aspect of the ACU law program is unique. “The pro bono program provides students with an unrivalled opportunity to experience and reflect upon the operation of the law in a practice setting,” said program coordinator Dominic Cudmore. “It allows students to give back to their communities and make a difference while gaining valuable practical legal experience.” Students have undertaken work in community-based support services such as Legal Aid NSW, Macarthur Legal Centre and various law firms and government departments. “I got to experience and work with a huge variety of legal issues across fields of civil, criminal and family law,” said one student participant. “This first-hand experience allowed me to appreciate the intensity and fast-paced nature of work as a pro bono lawyer.” Any students or legal organisations interested in becoming involved with the program should contact Dominic Cudmore at firstname.lastname@example.org. “The pro bono programprovides students with an unrivalled opportunity to experience and reflect upon the operation of the law in a practice setting.” DOMINIC CUDMORE, ACU
After more than 100 years of trading as a private partnership, CBP Lawyers began the new financial year as a corporation. The firm will now trade as Colin Biggers and Paisley Pty Ltd under managing partner Dunstan de Souza. De Souza, pictured, said the change was a “historic moment” for the firm and cited rapid growth in recent years as the main reason behind the decision to incorporate.
“We have grown rapidly in the past five years, expanding to Victoria in 2012 and Queensland the following year,” said de Souza. “As a result, we found ourselves with a hybrid structure, with a partnership model in NSW and Victoria but an incorporated model in Queensland.” CBP now has more than 400 staff with offices in Sydney, Melbourne and Brisbane. De Souza said converting to an incorporated model had helped the firm achieve uniformity across the three states and would encourage continued growth in the future.
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Solicitors are reminded that under Clause 24 of the Motor Accidents Compensation Regulation 2015, which came into e ect on 1 April, a legal practitioner or close associate cannot receive or pay a fee or other consideration for the referral of a claimant to a legal practitioner. Under the Regulation, “close associate” means an employee of the legal practitioner, a partner of the legal practitioner, an employee or agent of the legal practitioner or a family member of the legal practitioner. This new prohibition in the costs regulation was inserted following feedback from the Law Society that there are emerging risks in this area. As noted in the July edition of the LSJ , businesses are emerging in NSW (as has been the case overseas) which seek to recruit “clients” for potential compensation claims and pass them on to legal firms for a fee. The Motor Accidents Authority (MAA) is investigating this further. The paying or receiving of any such fee by a legal practitioner is now prohibited by the Motor Accidents Compensation Regulation, as is the paying of a fee for referral of client from one practitioner to another. Under the Regulation, “close associate” means an employee of the legal practitioner, a partner of the legal practitioner, an employee or agent of the legal practitioner or a family member of the legal practitioner. According to the MAA, the Regulation is in place is to set the maximum recoverable costs for legal and medico-legal services provided in relation to motor accident claims. The rationale for regulating the cost of these services is to ensure that transaction costs relating to motor accident claims do not unreasonably contribute to the cost of green slips payable by NSW motorists. This is not new, but the remade Regulation, e ective 1 April, provides for increases in the maximum recoverable fees for legal and medico-legal fees. In some cases, the increases are quite significant. There has been a general 8 per cent increase in most stages. Practitioners now are able to charge for more than one dispute in a medical assessment matter at the Medical Assessment Service. Representation at Assessment conferences under s104 of the Motor Accidents Compensation Act 1999 has increased substantially from $530 to $1250. At the same time, the Regulation seeks to provide greater transparency in relation to solicitor-client costs in motor accident matters by requiring legal practitioners to disclose to the MAA a costs breakdown setting out the total amount paid by an insurer in finalising a motor accident claim and breaking that total into various components as required by the MAA. This provision will not become mandatory until the MAA has issued a form and process for this disclosure of data. The MAA is working with the Law Society and the Australian Lawyers Alliance to pilot a data collection process, which is expected to be finalised within the next few months. Further information on these requirements will be made available in the LSJ .
DON’T KNOW EVERYTHING?
The law can be technical, detailed and even messy. And sometimes as lawyerswe have to quickly become experts in areas of the law that we don’t usually specialise in. That’s why our Legal Information Officer assists members across a range of legal issues, including business law, criminal law, family law, property law, wills and estates and more. Contact Peter Leggo today for help to find the answers you’re looking for. (02) 9926 0333 1800 420 934 (Toll free) Peter.Leggo@lawsociety.com.au
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MINDFULNESSLEADERSHIPFORUM 27 28 AUGUST The Mindful Leadership Forum is a new event that brings together leaders from the fields of business, science, the arts and society to explore a new global movement in leadership. Join world-leading thinkers from a range of companies as they explore the revived importance of mindfulness in leadership roles. Being mindful encourages people to press pause on their often hectic lifestyles to become more attuned to their current situation. For leaders in our constantly logged-in, digitally-dependent corporate world, mindfulness provides essential skills in compassion and authenticity that should not be overlooked. Companies such as Google, LinkedIn and the Harvard Business School have already begun to realise increases in wellbeing, creativity and productivity that mindful leadership can bring. Find out what the buzz is about at the Concourse, Chatswood, between 27 and 28 August. For registrations and more information visit
ELDERABUSEFORUM 13 OCTOBER The Aged-Care Rights Service (TARS) will hold a forum in October to discuss the rights of elderly people. Audiences will hear from keynote speaker Susan Ryan, Australia’s Age Discrimination Commissioner under the Australian Human Rights Commission. The forum will investigate age-based discrimination for existing and future community workers from a human rights perspective. Interactive sessions will provide a platform for discussion and strategies on addressing elder abuse in community and residential settings. The Elder Abuse Forum will run from 9:30am-3pm at Auburn Town Hall. For registrations and more information visit
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AUGUST 2015 I LSJ 15
Salary and Employment Outlook
47% of legal employers plan to increase headcount over the next 12 months.
82% of legal employers will be rewarding their employees with a salary rise; majority will be rewarding a 1-5% increase. 62% of employers will be rewarding their sta with a bonus.
51% of legal employers state that mid-level professionals are most in demand. 26% of legal employers state that specialists are in highest demand.
71% of legal employers will be promoting a strong company culture to attract new talent. 68% of legal employers using the same strategy to retain top performing sta .
74% of employers o ering flexible working hours. 68% o ering the option to work from home. 45% o ering increased maternity/paternity leave.
These figures are found in the 2015/16 Michael Page Australia Salary and Employment Outlook, launched in July 2015. Credits: Binoculars by Nathan Driskell, Ribbon by Sofía Moya, Megaphone by Angelique Hering, Magnet by Arthur Shlain and Clock by Nick Green from Noun Project.
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BRIEFS FROM THE ARCHIVES
review THE YEAR IN 1963
Take a trip down memory lane through the pages of the Law Society Journal.
THEMEANINGOFSTATUS A LETTER TO THE JOURNAL “It is very noticeable how the use of the word ‘status’ is increasingly in the annual reports of the Law Society and in discussions amongst members of the profession. It has always been my opinion that although there are a limited number of occupations which, by their nature, confer status on the individual automatically, the fact is that generally speaking status is a condition which must be earned by the seat of one’s brow. It also seems clear that by fair means or foul, a largish proportion of the world’s population is actively engaged in seeking status.” W H A Womack NSWYOUNGLAWYERS ISBORN The Law Society launches the Young Members Committee (later to become NSW Young Lawyers). Law Society President Barry McDonald is keen to involve young solicitors in the Law Society’s activities and encourage their involvement in the legal profession. He believes that a Young Lawyers Committee would have benefits for both the profession and the broader community. The new committee sees the immediate need for greater communication between its members, establishing a number of initiatives aimed at creating new networks for young lawyers, including sporting competitions and social events such as the Annual Law Term opening dinner.
INTHENEWS From 1963 all Indigenous Australians are allowed to enrol to vote in Federal elections after Prime Minister Robert Menzies amends the Commonwealth Electoral Act 1918 in 1962. Other states allowed Indigenous Australians to vote from 1949. NSW Premier Robert “Bob” He ron’s Royal Commission into the legalisation of o -course betting leads to the establishment of the Totalisator Agency Board (TAB). Editor Roger J Atkins writes in the first editorial: “The Council’s purpose in introducing it to you is to take one step further forward in improving the relations between members, and between members and their Society, as part of a programme of improvement of the status of the profession ... Continuous self-education in his professional and ethical responsibilities is the duty of every member … The extent of these responsibilities has been ably put by Mr Christian in his book A short History of Solicitors , when he says: ‘Few professions are so old as the solicitor’s, and probably none so stringently regulated or so jealously supervised by the State. From the first day of his apprenticeship to the last day of his practice every action of the solicitor is subject to regulations laid down by Parliament, his education, his right to practise, his relations to his employers, his remuneration, all are minutely prescribed by the legislature’. This then is your Journal . Give it your assistance and there is no end of the good it can do.” The first issue of the Law Society Journal is published in March 1963. The Society announces there will be four issues of the Journal each year.
HOWCANTHESOCIETYHELP THEPRACTITIONER? In an extract from an address by Sir Thomas Lund to practitioners in April, Lund says: “Public confidence flows from the fairness of the law, a justifiable conviction that the courts are completely impartial and available, and a complete confidence in the integrity
and e ciency of the lawyers ... As regards the profession itself, we certainly need to be very strict about our own discipline, because this is a very vital matter as it concerns the public. We really need to investigate every complaint and, if it is unjustified, to explain carefully to members of the public concerned why it is to; and if it is justified, to take immediate disciplinary proceedings.”
JUNE 2014 I LSJ 1 AUGUST 2015 I LSJ 17
BRIEFS CAREER MOVES
MEMBERS ON THE
ANNETTEENGLISH Now a partner, Equilaw , and a director, Thoroughbred Legal
MATTHEWGRAHAM Joined as a senior associate, Commercial Team Salvos Legal
GUYBETAR Joined as a special counsel, Commercial Team Salvos Legal
DAVIDGILHAM Joined as a partner, Corporate and Real Estate McCullough Robertson, Sydney
AMANDASEGUNA Appointed to senior associate Meridian Lawyers, Sydney
PETERMCMAHON Joined as a senior tax consultant Baker & McKenzie, Sydney
PETERBAHLMANN Joined as partner Hansons Lawyers, Wollongong
CLAIRHODGE Joined as group corporate counsel Transport for NSW
NATALIEBAINI Joined as head of legal Insight Legal Partners, Drummoyne
MAITHRI PANAGODA Appointed adjunct professor of law University of Notre Dame, Australia
MICHAELASCHMIDT Promoted to partner JMA Legal Business Lawyers, Cootamundra
ERICZIEHLKE Joined as partner, IP & Technology Swaab Attorneys, Sydney
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JUNE 2014 I LSJ 10
BRIEFS OUT AND ABOUT
A2JCONFERENCE2015 Guests, speakers, and leading minds in the profession gathered to celebrate the opening of the National Access to Justice and Pro Bono Conference, held on 18 & 19 June in Sydney. The impressive line-up of speakers included Chief Justice Tom Bathurst, Rosie Batty, Nicholas Cowdery AM QC, Stephen Blanks, Rosalind Croucher AM, Hugh de Krester, Peter Greste, Justice Ruth McColl AO, Gabrielle Upton MP, George Williams AO, Acting Chief Judge McInerney, and Mark Dreyfuss QC.
PHOTOGRAPHY: CHRIS GLEISNER
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BRIEFS OUT AND ABOUT
AUGUST 2015 I LSJ 21
intimate association. A decade later, the court brought down sections of the Defense of Marriage Act that prevented the federal recognition of same-sex marriages solemnised in states where it was legal. Obergefell adds to the above pro- gay jurisprudence. Yet, what is striking about the judgment is the mix of sentimentality and optimism that underscores the constitutional analysis. Much of the majority’s opinion, delivered by Justice Anthony Kennedy, evokes visions of liberty, equality, and dignity. In delivering the opinion of the court, Justice Kennedy gestures to the “transcendent importance of marriage.” From bans on interracial marriage to the doctrine of coverture to denying married women contraception, the regulation of this “transcendent” institution has never been static. Marriage laws have shifted with changing social and political norms. However, while detailing the historical development of the institution, he carefully stresses how marriage has been revered as a “binding” form of intimacy throughout history. For Kennedy J, the push for gay and lesbian relationships to be recognised under this evolving framework is far from radical. It’s one of “destiny”. However, this should prompt us to ask: has marriage equality been central to the gay community’s destiny? The judicial narrative of inclusion and incrementalism with respect to gay rights sits uncomfortably with the broader activism for queer justice. Specifically, activism associated with the Stonewall Riots in 1969 – the precursor to the Sydney Gay and Lesbian Mardi Gras in 1978 – sought to contest social institutions such as marriage that stifled non-normative
DIGNIFIEDFUTURES: A QUEER CASE ON MARRIAGE EQUALITY? UNITED STATES OF AMERICA
R arely do appellate decisions garner intense, wide-ranging community interest. Yet the recent US Supreme Court’s decision to endorse marriage equality continues to generate significant international celebration, condemnation, and critique – even in Australia. Advocates for reform here cite the US jurisprudence as a reminder of what is at stake for same-sex couples: equality before the law. Over the past decade, a number of states in the US have legislated to allow for same-sex marriage. Many others have ushered it through judicial fiats. The most recent case, Obergefell v Hodges , brought together 14 same- sex couples and two gay men whose partners were now deceased who sought to challenge the state bans on same- sex marriage in Michigan, Kentucky, Tennessee, and Ohio. The appellants had been successful in challenging the
bans in their respective District Courts but those decisions were reversed at the Sixth Circuit. On appeal, a majority of justices on the US Supreme Court quashed the decision of the Sixth Circuit on the basis that denying same- sex marriage infringed on the Equal Protection and Due Process guarantees of the Fourteenth Amendment. In order to understand the US Supreme Court’s decision, it is necessary to reflect on the judicial path that has helped facilitate the recognition of gay and lesbian civil rights. In 1996, the court invalidated an amendment to the Colorado Constitution that would preclude the Colorado government from passing anti-discrimination laws or funding programs for gay, lesbian, and bisexual people. In 2003, the court held that all remaining state bans on sodomy were unconstitutional because they impinged on the right to private
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sexual intimacies or gender expressions. Now, claims for civil rights rely on recognising the dignity of same-sex couples through marriage. Far from undermining the institution of marriage, the decision elevates the national position of marriage. e court moves from romanticising marital relationships as a “union unlike any other” to discussing its “stable” safeguards for children to reiterating the enduring signi cance of marriage to our “social order”. In concluding the judgment, Kennedy J poetically exclaims: “No union is more profound than marriage, for it embodies the highest ideals of love, delity, devotion, sacri ce, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. eir plea is that they do respect it, respect it so deeply that they seek to nd its ful llment for themselves. eir hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. ey ask for equal dignity in the eyes of the law. e Constitution grants them that right.” Connecting claims for dignity and love with the ability to get married are enormously moving. e above paragraph serves as a reminder of how jurisprudence can reach beyond legal or technical de nitions and touch us in profoundly emotional ways. Yet, at the risk of being labeled a killjoy, it is worthwhile to pause and consider whether the judgment’s lyricism narrows – rather than broadens – our visions for intimate liberty. In a passionate dissent, Chief Justice John Roberts critiques the majority for imposing their “will” upon the Constitution, ignoring precedent, and taking the issue away from legislatures or voters to decide on. Yet, Roberts CJ also pushes the majority’s reasoning further: if the denial of marriage interferes with a fundamental right to liberty, why exclude people who wish to marry more than one person? is question is interesting not because it con ates same-sex marriage with polygamy but because it forces us to broaden the majority’s questions about marital recognition. Indeed, the Australian High Court has resolved this issue, noting that the “marriage power” in the Australian Constitution refers to consensual unions between people (of which eligibility, rights, entitlements, obligations, and responsibilities are de ned by legislation). Ultimately, marriage reform generates claims for
love, equality, and dignity. Such principles are powerful and important to protect. However, as marriage equality jurisprudence re ects on the evolving regulation of marriage, and the push for social acceptance more broadly, we should also be wary of claims that inadvertently exclude others. No one should have to get married in order to have their relationship respected or to access support from the state. Love and family nd expression in disparate ways. It would also be parochial to assume that marriage equality will eliminate the violence, harassment, and discrimination that sexual and gender minorities are subjected to on a daily basis. So, feel free to wash your Facebook pro le pictures in rainbow lters and campaign for marriage equality, but remember that the push for social justice goes well beyond that. Senthorun Raj is a PhD candidate at Sydney Law School and a forthcoming visiting doctoral fellow at NYU Law School. 248,206 HOURS
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AUGUST 2015 I LSJ 23
HOT TOPIC OPINION
Senior lawyers who fail to adequately train and mentor junior lawyers must take responsibility for poor outcomes, writes JACQUELINE DAWSON .
Blame not the junior lawyers
M uch has been said in recent times about the abundance of law graduates now entering the workforce, not all of it flattering. In my experience, there is a tendency for senior lawyers to criticise more junior lawyers for undesirable results without necessarily considering whether they should accept responsibility for failings in the relationship. In the age of significant billing pressure, and where some junior lawyers’ first experience of the law is the day they start working full-time, opportunities to learn have changed. This can produce poor outcomes: lawyers being asked to carry out tasks
be profitable. It is more likely to produce confident solicitors who have capacity to ably take on matters. So how does a senior solicitor act as a good mentor, and how does a junior solicitor know if they are being mentored well? What makes a goodmentor? • Knowledgeable – perhaps this is an obvious point. However, anecdotally it seems that junior lawyers are sometimes employed to take over an area in a firm in which their supervisor has no expertise in that area. • Approachable – if you can’t be available on a flexible basis, ensure that you are available at regular times of the day/week. • There is no “one size fits all” approach – acknowledge differences in style and ability between various junior solicitors and take time to work with each solicitor individually. Some will be ready to take on particular tasks sooner than others.
responsibility to work to improve their skills, those who are senior to them have a responsibility to nurture and assist the careers of junior lawyers. Ultimately, this comes down to good-quality mentoring. Good-quality mentoring is arguably not cost-effective in the short term. It means taking time to discuss problems and help the junior lawyer decide on approaches. It includes permitting the junior solicitor some non-billable learning time, such as attending court to watch proceedings, or attending meetings as an observer. It can be profoundly damaging to the confidence of a junior solicitor if their first experience of such things is when they are attending on their own, and things go wrong. Thus, in the short term – particularly with new graduates – there may be a period where profitability is compromised. However, in the longer term, an approach in which there is a generous attitude to learning is far more likely to
in which they have no experience and/or being left unsupported in
their employment. When this occurs, outcomes will be poor for the client, the firm, the system and the junior solicitor. Just as much as graduates have a
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Solicitor’s Copy Service
It can be profoundly damaging to the confidence of a junior solicitor if their first experience of [going to court] is when they are attending on their own, and things go wrong.
• Generous about work – actively look for tasks for junior lawyers that are commensurate with their ability. • Be balanced in relation to the need for billing and the need for learning. • Recognise success and take responsibility for failures. Ultimately, matters are the responsibility of the supervisor, and if something goes wrong, little is achieved by blaming the junior solicitor. • Be respectful towards the junior solicitors you work with. This extends to the obvious of not engaging in bullying behavior or in behavior that may be perceived as bullying. • Have reasonable expectations of work practices – this includes both hours of work and the work that is expected. If you are a senior lawyer, take a moment to reflect: am I doing all I can for my junior employees? And junior lawyers perhaps need to consider whether their mentor is doing everything they can. In this tough legal market, it is difficult for a graduate to be objective about their own career. I suspect that many lawyers simply believe they are fortunate to be working, so they may be reluctant to carefully assess whether they are learning what they need to. However, if a junior lawyer finds themselves in a situation where most (if not all) of the above criteria are not being met, they need to carefully assess whether their longer-term career needs are being met. Similarly, if a senior lawyer finds that junior lawyers never stay for long, or if they are beset with a long list of complaints from clients on a regular
basis, then they need to assess whether their mentoring could be improved. Of course, junior lawyers also have responsibility for their part in the equation. Here are few thoughts about the mentee’s responsibilities: What makes a goodmentee? • Display awareness of what they do and don’t know. • Learn from mistakes. • Be open about mistakes – do not attempt to conceal them. • Actively seek learning opportunities. • Respond to the needs of your mentor and your clients: do not ask for help at inappropriate times. • Be respectful and display awareness of your role in the firm. • Clearly communicate about your needs and wishes (while keeping the above points firmly in mind). • Adapt – be willing to take on different tasks as your abilities expand. Mentors appear in many guises, not all of them in the employee/employer context. Interactions between solicitors on opposing sides of matters can be just as important and can have a big impact on the learning and confidence of junior solicitors. When we deal with junior solicitors in any context, they will learn something from us: for better or worse.
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JACQUELINE DAWSON is a solicitor director at Sexton Family Law in Milsons Point.
AUGUST 2015 I LSJ 25
Awoman of influence
Jennifer Robinson, legal adviser to Julian Assange and the United Liberation Movement for West Papua, is Director of Legal Advocacy for the Bertha Foundation where she established the Bertha Justice Initiative that supports 120 young lawyers in 16 countries to practise “movement lawyering”. JULIE MCCROSSIN speaks to her in London about her work with filmmakers, lawyers and activists and her journey from Bomaderry High on the south coast of NSW to the centre of international legal activism.
A t Yale Law School they call it “cause lawyering”. Other law journals use the term “radical lawyering”. At the Bertha Foundation it’s “movement lawyering”. Whatever you call it, 34-year-old Australian lawyer Jennifer Robinson does it and her goal is to ensure that more human rights lawyers get the chance to do it as well. We meet on a very hot day in late June on the roof of her office building in Cavendish Square near Oxford Circus in Central London. The park opposite is packed with sun-baking office workers quietly eating their lunch. The small roof garden where we talk is surrounded by flowers of every colour. It is a gentle setting for a discussion that ranges over many challenging international legal issues facing some of the most disadvantaged people on earth. As a young graduate with an impressive academic record, Robinson graduated
from the Australian National University with the university medal in law and a Distinguished Scholar in Asian Studies and won a Rhodes Scholarship to Oxford where she graduated from Balliol with a Bachelor of Civil Law specialising in International Law and Human Rights and a Masters of Philosophy in Public International Law. She was encouraged to do two years in a corporate law firm and laughs as she remembers her annoyance at this advice. “I was always frustrated by this advice,” she says. “I didn’t want to go and do that. And frankly, I don’t see why reviewing financial services contracts in the basement of a magic circle law firm is ever going to put anyone in good stead to litigate on human rights cases. I was frustrated that so many bright young lawyers take this advice and get caught up in the corporate world.” The Bertha Foundation, a privately funded family foundation where she works, shared her frustration. (Robinson
will not say who started the foundation, saying the founder prefers not to be named.) Robinson has spent three years establishing the Bertha Justice Initiative program to offer an alternative. “We set out to create a program to support young or emerging lawyers to go into public interest legal work and become human rights lawyers,” she says. “We created a two-year fellowship, partnering with the most radical human rights litigating organisations all around the world, to create paid, entry-level opportunities for young lawyers to get their start in this work. Opportunities that, unlike in the corporate sector, didn’t previously exist. “We partner with organisations that practice what we call ‘movement lawyering’. They work together with activist movements and use the law as a tool to build power for these movements. They take the really tough cases, cases no corporate law firm will do pro bono. “We provide incentive funding for
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