LSJ – December 2015
FROMTRAGEDY SPRINGSHOPE A YEAR SINCE THE LINDT CAFÉ SIEGE, KATRINA DAWSON’S LEGACY THRIVES
APASSIONFORCHANGE THE AFGHAN REFUGEE DEVOTING HIS LEGAL CAREER TO DEFENDING HUMAN RIGHTS
THE PAINFULLYHIGHCOSTOF SUICIDE A LAWYER’S ACCOUNT OF PERSONAL LOSS LOST INTRANSLATION (ANDTHENSOME) A DAY IN THE LIFE OF A COURT INTERPRETER THE FEDERALCIRCUITCOURT INCRISIS A JUDGE’S PLEA FOR GOVERNMENT ACTION AREDFLAGFORCONTRACTNEGOTIATIONS PAVLOVIC V UNIVERSAL MUSIC EXPLAINED
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A s another busy year draws to a close, I would like to re ect on the Law Society’s achievements in 2015. is has been a year of breaking new ground on several initiatives for both the Law Society and the legal profession as a whole, including the much anticipated rollout of the Legal Profession Uniform Law and our State Election Policy Platform. Our State election campaign re ected the Society’s vision of the law as honouring individual rights, securing a balance between competing priorities, and promoting access to justice. “Balance. Rights. Justice.” was well received and elegantly outlined the Society’s position on bail, mandatory sentencing and resourcing. e Law Society received formal responses from all major political parties to the document, which will form the basis for future engagement and advocacy. In August, the Law Society hosted a one-day conference on the relationship between ethics and public policy governance. e Re ections on Corruption Conference was an outstanding event, providing participants with the opportunity to consider how a profession builds an ethical culture. Another highlight was the Rural Issues Conference, which featured comprehensive advice and broad-ranging discussion on issues relating to rural and regional practice. In addition, seminars on ethics were conducted around the major regional areas and in Sydney. e Law Society was very active in its e orts to ensure access to justice for the most vulnerable in our community, joining the chorus of voices expressing concern over drafted changes to funding arrangements for Legal Aid and Community Legal Centres. We raised concerns about the dire shortages in the Family Court and Federal Circuit Court and our campaign against unfair changes to Workers Compensation legislation gathered even more steam, as did our warnings on changes to bail and restrictions on legal representation. Our CPD and CLE program increased in scope and accessibility this year, and, in a rst for an Australian membership organisation, we secured ground-breaking contracts with major publishers that provide members with online access to 16 traditional loose leaf titles. Our technological push will continue into 2016. I would like to thank the many people who have supported me this year, particularly Law Society Chief Executive O cer Michael Tidball and his dedicated executive team. It has been a privilege and honour to serve as President of the Law Society, to have engaged with so many members of our profession, and to have visited so many suburban and regional law societies. A personal highlight was nominating Motor Neurone Disease Australia as the 2015 President’s Charity, a cause very close to me. I wish the President-elect, Gary Ulman, every success for 2016 and hope all members of the profession and their families have a happy Christmas and a safe and prosperous New Year.
DECEMBER 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
As another year draws to a close, the LSJ is wrapping up on a powerful note. Jane Southward’s cover story on the life and legacy of much-loved barrister Katrina Dawson who died in the Lindt Café siege last year is a stark reminder of the events of that day, which impacted so many of our friends and colleagues. Although terribly sad, the story ultimately is uplifting as we learn of the incredible resilience of Katrina’s family and the determination of the legal profession in supporting the Katrina Dawson Foundation, a charity already impacting the lives of talented young women – some of them lawyers-to-be. We also are incredibly fortunate to be able to share the very personal account of family lawyer Elizabeth Rusiti, whose husband, Matthew Stutsel, took his own life earlier this year. Matthew was a friend of mine – we shared a love of all things French – and Elizabeth’s story is powerful in its fragility and honesty. Rusiti bravely opens up an important dialogue and reiterates the need to constantly revisit and rethink the issue of mental illness in the legal profession and beyond. On that note, take care of one another and hold your loved ones close this festive season.
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 email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 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
Ronald Sackville AO QC is an Acting Judge of Appeal and a former judge of the Federal Court. In our extract of his address to UNSW Law, he reflects on access to justice issues 40 years on from his important report, Law and Poverty in Australia . In focus p26
Joanna McMillan is a dietitian, nutritionist and author who writes regularly for the LSJ. In what may be the year’s best news, she details why co ee is actually good for you. So grab a co ee and read on, guit-free. Health p52
Tom Gumley is a partner at Herbert Smith Freehills. With HSF partner Rebekah Gay, he writes about whether claims to nucleic acid molecules are patentable subject matter under Australian law.
Nicholas Cowdery was the NSW Director of Public Prosecutions from 1994 to 2011. In an extract from his address to LAWASIA last month, he reflects on Australia’s legal response to the global
Cover illustration: Andy Raubinger
What next for gene patents in Australia? p70
terror threat. Global focus p22
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 FEBRUARY 2016
24 OPINION The Federal Government’s failure to make timely appointments of new judges to the Federal Circuit Court of Australia is a disgrace, writes Judge Giles Coakes 26 INFOCUS Forty years since his ground-breaking Law and Poverty in Australia report, Justice Ronald Sackville is critical of today’s approach to access to justice 28 COVERSTORY A year since the death of barrister Katrina Dawson, her family has been overwhelmed by support from the profession
32 APASSIONFORCHANGE Afghan refugee, star lawyer and polyglot Besmellah Rezaee is pouring his passion into human rights cases 36 THETRUECOSTOFSUICIDE Family lawyer Elizabeth Rusiti shares her tragic personal story of love and loss 46
52 COFFEE–GOODORBAD? In possibly the best news of the year, Joanna McMillan explores why coffee is good for you 54 PSYCHE Dealing with anniversaries of tragic events such as the Lindt Café siege needs more than a simple phrase, writes Guy Vicars 56 CITYGUIDE Ute Junker gives the lowdown on Vietnam’s most dynamic city, Ho Chi Minh 60 YOUWISH Tasmania’s King Island has two new golf courses worth a visit
ADAY INTHELIFE Van Thu Pham tells
Jane Southward about her work as a court interpreter 50 EXTRACURRICULAR
Meet the surfing lawyers who hold conferences at island surf spots
6 LSJ I DECEMBER 2015
8 MAILBAG 10 BRIEFS
66 ADVOCACY: THE LATEST IN LAW REFORM 70 IPANDPATENTS: GENE PATENTABILITY 73 RISK: INCAPACITY & SETTLEMENT APPROVALS 74 CONTRACTS: BINDINGCLIENTS INCONTRACT 76 ROYALCOMMISSION: CHILD SEXUAL ABUSE 78 CONSTITUTIONAL: POLITICAL DONATIONS 80 PRACTICEMANAGEMENT: SECRETS TO SUCCESS 82 STRATA: BREACH OF STATUTORY WARRANTIES 84 FAMILYPROVISION: INSIGHTS FROMTHE BENCH 86 CONTRACTS: EXPERT DETERMINATIONS 87 CUSTOMS: TARIFF CLASSIFICATION 88 INDIGENOUS: WHO SPEAKS FOR COUNTRY? 90 CONTRACTS: AMBIGUITY & INTERPRETATION 92 CRIMINAL: EVIDENCE OF FACT V OPINION
40 CAREERCOACH With Fiona Craig 42 CAREER101
News and events from the legal world
Featuring Tim Holden, in-house counsel for Football Federation Australia
14 PROFESSIONAL NOTICES 14 THE LSJ QUIZ 18 FROMTHEARCHIVES 19 CAREERMOVES Who moved where this month 20 OUTANDABOUT The Law Society’s Annual Members Dinner 22 GLOBALFOCUS Legal responses to a global terror threat 35 LIBRARYADDITIONS
Etiquette, fashion and tips to do better in business
Book reviews, events and giveaways
64 NON BILLABLES
Yarns we can’t bill for
106 EXPERTWITLESS Legal news to make you giggle
93 TAXATION: DANGEROUS TRUSTS 94 COSTS: CERTIFICATE JUDGMENTS
New books at the Law Society Library
95 LEGALPROFESSIONUNIFORMLAW: FAQS 98 CASENOTES: HCA, FCA, CRIMINAL & FAMILY
DECEMBER 2015 I LSJ 7
LETTERS TO THE EDITOR
Time for change I wish to comment on the article “A Day in the Life of Andrea Wilson, Surrogacy Lawyer”, (October LSJ ), about the issue of altruistic surrogacy. I have mostly been providing independent legal advice to surrogate mothers and their partners these past few years and have found it a very interesting and challenging area of law. It never ceases to amaze me the different combinations of relationships that have formed for the sole purpose of bringing a very much loved and wanted child into this world because a woman is not able to carry a child herself, or a man does not have a female partner. I also practise in the care jurisdiction in the Children’s Court, where some parents can have as many as 10 children removed, one by one as they are born, who are not particularly wanted. The contrast is marked. I think the legal status of the intending parents in the altruistic surrogacy arrangements needs to be changed, possibly before birth or shortly thereafter, to ensure that when the child is born it will have parents who are able to be regarded as their legal guardians, to ensure they can access medical and government services. Currently, only the birth mother has legal status as the parent until the intending parents apply to the Supreme Court for a parentage order 30 days after the birth of the child, and sometimes it can take months for the Supreme Court to make the orders. This
pregnant in exchange for money. These surrogates are paid to bear the children of others, which they give away shortly after the birth. Surrogacy is glamorised within a narrative of benevolence and service; surrogacy becomes progressive and selfless instead of dehumanising and degrading. Behind the façade of creating happy families lies a lucrative industry that trades in human beings – women as well as babies. In India and other third-world countries such as Thailand, thousands of children have been born by this means. Third-world surrogates come at a cheap price. It is not uncommon for surrogates to be paid between $2,500 and $6,500, which could be many years’ salary for a peasant woman. These women are made to stay at clinics during their pregnancy where they are closely supervised and administered medicines and matter. Some are coerced by their husbands or families to become surrogates, adding another element to appallingly brutal and unjust transactions. “Free choice” and “consent” are bought at a cheap price. The human being becomes painful injections without having much say in the a commodity, those who are more economically advantaged exploit those who go without; one person’s desires trump another’s right to be valued for their human dignity. It is now possible for anyone to have a baby, whether they are childless, infertile, heterosexual or homosexual, old or young.
leaves the intended parents, who have the day-to-day care of the child, without legal status and unable to interact effectively with medical and government services for the benefit of the child. If the irrebuttable presumption under the Status of Children’s Act (NSW) was amended so the presumption that the birth mother’s husband or de facto partner was rebuttable and the Surrogacy Act 2010 also was amended so intending parents applied to the Supreme Court for an order just before the birth of the child so that they were the legal guardians, then the practical issues facing parents after the birth of the child would dissipate somewhat. It also would assist practitioners trying to deal with the shortcomings of the current law and the practical difficulties of the intended parents by being creative with the law, such as having to apply for exemptions on the basis of exceptional circumstances for the birth certificates anomaly of having the intended father placed as the father. Jacqui Griffin, Parramatta The article “A day in the life of Andrea Wilson, surrogacy lawyer” provides no critical reflection on exactly how surrogacy happens, and its consequences. For some years now, there has been a trade in pregnancy, a situation in which women (surrogates) are inseminated and made Need to rethink surrogacy
THEHIGH (ANDPAINFUL)COST OFSENDINGWOMENTOPRISON FAMILIESDOING HARDTIME
THEENDOFLAWFIRMS? ACCLAIMEDFUTURISTRICHARDSUSSKIND ONWHYLAWASWEKNOW IT ISDYING
THEMYTHOFLAWFIRMDIVERSITY WHY IT’STIMEFORMORETHANJUSTTALK LEARNINGHOWTOCAGETHERAGE ANDWHY ITMIGHTSAVEYOURCAREER 7STEPSTOAMORERESILIENTYOU SMARTWAYSTOBUILDASTRONGERSELF UNTANGLINGTHETANGLEDWEB THEMURKYWORLDOFGRANNYFLATS
22/10/2015 1:34 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! Richard Legg has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
8 LSJ I DECEMBER 2015
My wife, whom I met when she was the librarian at the Commonwealth Crown Solicitor’s O ce, was the daughter of a Newcastle barrister. On the same floor as the library was a room occupied by the then Attorney-General Garfield (later Sir Garfield) Barwick. If he was late in returning a book, he received a firm but courteous reminder, notwithstanding his status, that he had to comply like everybody else. Nearly three years after we married, my wife gave birth to our first child, a boy, who is now my partner at work and has been my partner for 20 years. My wife approved the move from the Bar to Forestville as it gave me the opportunity to master the art of changing nappies, washing baby bottles and preparing meals for children – our daughter arrived two years after her brother. Living close to where you work results in seeing clients or others with whom one has regular contact. Some years ago, a local doctor told me she had numerous kerbside consultations when she was shopping until she decided to keep her head down, wear a facial covering, or ultimately never go out. About 95 per cent of such contacts outside the o ce are friendly, but it can be taxing when the other person says, after the usual friendly greeting, “You remember about 15 years ago when I consulted you about … ?”
As time passes, remembering what was said in a consultation a week earlier can be very testing. The rising proliferation of emails increases the pressure to perform – and to do so promptly. While many matters repetitious and mundane, it must be remembered that it is important to the client. One becomes accustomed to seeing clients in varying emotional states, ranging from humour (fairly rare) to depression, anxiety, anger and distrust. Visits to nursing homes can provoke di erent reactions of sympathy, sadness and, possibly, a small window to your own future. At our o ce, my chief o ended) is a 13-year-old Tenterfield Terrier. She has the ability to calm people who can be uptight. She has been there five years and has accumulated substantial legal knowledge. One of her predecessors, a Sydney Silky, performed the role of time keeper. If a consultation lasted more than 20 minutes, she started to snore, indicating “you have had enough time”. I hope this gives a realistic picture of the scene at Forestville. Richard Legg Burridge & Legg Solicitors have a certain similarity and may be considered assistant (I hope the secretaries will not be
Professionaldevelopment ADAY INTHELIFE
with transgender issues. I ampartof the community and therewereno role models forme.People inmybuilding knowmy clientele. I initiallywanted tobe a teacher.Now I feel like Iaman educator with clients, solicitors, and the courts. Lesbians started coming tomewhere onewanted tohave a childusing sperm fromknownorunknowndonors.My rstof those caseswas in1994 and I just gotknown fordoing that sortof work. e lawused tobe that there wasno recognition for the co-mum, so wehad to apply forparentingorders in theLocalCourt (FamilyMatters) so the co-mum couldbe recognised as the legal guardian.We appearedbefore MagistrateScottMitchellwho gave my clients special treatment. en the law changed to allow the co-mum to be recordedon thebirth certi cate as parentormother andmyworkdropped o in that area. en gay guys started having children. e social changehas been enormous. Altruistic surrogacy is legal in Australia,but commercial surrogacy is banned. It is also illegal to advertise for a surrogate, for a surrogate to advertise, and for a clinic to nd a surrogate for anyone. Idon’t arrange surrogacy. ere are some lawyerswhodo. I am an advocateof commercialising the industry. It’s encouraging thatChief JusticeDianeBryantof theFamily Courthas called for commercial surrogacy tobe allowedhere. If you look at all theprofessionals, starting at the fertility clinic right theway through, whynotpay the surrogatewho isdoing thebiggest jobof all? Ithas takenme a while todecide this,but I think itwill regulate the industry. ere are also inconsistencies across theStates and betweenCommonwealth andState legislation,whichneed tobe addressed. Currently, ababywillbe registered as the childof thebirthmum (the
surrogate). e intendedparents then need toapply foraparentageorderunder the SurrogacyAct . ese casesareheard in the adoptions listof theSupremeCourt of the statewhere the intendedparents and child live.Until theparentage order ismade, the child is in the care ofpeopleneitherofwhom is the legal guardian.Nothavingaparentageorder means the intendedparents caring for the childordinarily aren’t able to get aMedicare card, for example,which means theyhave toobtain the consent of the surrogatemother andherpartner formedical treatment. e law inNSW ( Status ofChildren Act ) is that the surrogatemother and herpartnerorhusbandhave tobe recordedon thebirth certi cate. Ihave recommended to clients that they apply for the initialbirth certi catewith the nameof the surrogate and themale intendedparent (oroneof in the case of same-sex families) as father so that, for example, aMedicare card canbe obtainedby the intendedparents. It doesn’tmatterwhether thepersonhas provided the geneticmaterialornot. eRegistrarofBirthsDeaths and Marriageshas recorded thebirth as there isnodispute from thepartneror spouse of the surrogate and theSupremeCourt has allowed the application tobe treated as exceptional circumstanceswithout amending the initialbirth certi cate. ere’s ahuge listof requirements forparentageorders and entering into surrogacy arrangements.Of course, that is in thebest interestsof the childbut there is judgment on theparenting capability. It’sunfair, becauseparents of children born in thenormal course, oftenbymistake,don’t get judged on theirparenting abilities.
“ I leftschoolat theendof Form5 (Year11)andworked forbarristers inOwenDixon Chambers inMelbourneasa legalsecretary. Itwas just fantastic. Iknew Iwanted to study law. Iworked there fornine years and completedmyHigherSchool Certi cate andother studies. I studied economics atMonashUniversity and majored in nance. I recentlybecame a Certi edPractisingAccountant. When I rst startedworking, there werenumerous grounds fordivorce– strict compliance andblame– and then, in1975, justone ground–12months separation. Isn’t that just soprogressive? Oneofmybosses,AbeMonesterQC, chaired theFamilyLawCommittee pioneering that change.Abewas the juniorbarrister toPhilOpasQCwho defendedRonaldRyan, the lastperson hanged inAustralia formurder. I grewup readingdiscretion statements that contained evidence after aprivate investigator tookphotosof someone committing adultery. ephotographic evidencewouldbeplaced inbrownpaper bags, sealed,andgiven to the judge. I got to seeallof thatbefore theywent to the judge.Weacted formany celebrities around town. eywere fun times. I applied to theUniversityof TechnologySydney,whicho ered a law degreepart-timewith the requirement ofworking in a lawo ce full-time. I moved toSydney in1986 and started working as aparalegal atSly&Weigall and laterTaylor&Scott.After I completedmy lawdegree, abosswho I worked for inMelbournehelpedme set up ano ce inSydney,which I later took over in1996. I alwayswantedmyown rm. I started giving talks atuniversities andotherplaces aboutdiscrimination and I starteddoingdiscriminationwork. My clienteleare from thegayand lesbian community and I also act forpeople
Aday in the lifeof ...
SURROGACY LAWYER AndreaWilson
AndreaWilson’soffice inUltimo isa subduedand tranquilhaven in whichherclientsdiscuss themost importantand intimatedetailsof their relationships.Spermandembryodonation, surrogacy, in-vitro fertilisation, infertilityandadoption: theseare the issues thatmakeupmostofher practice.Lesbianmothers,gay father families,and familiescreated by surrogacyhereandoverseasareherbreadandbutter.Wilson,60, describesher legalpracticeas “allabout relationships”. “Iembracechange,” she says. “I lovepushing the law,and the socialchange Ihavewitnessed with in-vitro fertilisation,gayand lesbianparentingand surrogacyhas beenhuge.Thenext inevitablechange ismarriageequality.”According to SurrogacyAustralia,more than 1,000babiesbornvia surrogacyentered Australia in2014.Attorney-GeneralGeorgeBrandis isconsideringa recommendation from theHouseofRepresentativesStandingCommittee onSocialPolicyandLegalAffairs foran inquiry into the regulatoryand legislativeaspectsof surrogacy.WilsonhopesAustralia soon legalises commercial surrogacy.She tells JANESOUTHWARD aboutherdailywork.
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p50_52_A day in the life.indd 1
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Suburban law: the truth Some of you may be interested in what
A woman can outsource the di culties of pregnancy and have her own biological baby without having to go through pregnancy and labour, If pregnancy can be conceived of as just a service, what is the product in this commercial exchange? The product is a child. The woman bears, gives birth and hands the product over. At the time she gives up the child, she receives payment. This is simply human tra cking. Surrogacy is legitimised through the claim that it is a right of gay couples, the infertile and those too busy working to get pregnant, to have children. Human rights do not derive simply from desires, even noble ones such as wanting a child, especially when the rights of others are infringed. The truth is that with commercial surrogacy the human person becomes a commodity. There is never a right to buy another human being and commercial surrogacy should continue to be banned. Brian Symons
life as a suburban solicitor is like. Next year, if I make it, I will have been practising as a solicitor in Forestville for 50 years. I started my career at the Commonwealth Crown Solicitor’s O ce in Sydney in 1956 and received wonderful mentoring and guidance from a number of senior lawyers, including Ron Bannerman, who became the first Commissioner for Trade Practices. Among the work I did was a significant number of prosecutions for Social Security and customs o ences and I was able to go to country areas to represent the Commonwealth on those matters. After seven years, I moved to the Bar and practised for three years, sharing chambers with Ted Lusher (later a Supreme Court judge) and David Opas, a family law judge whose career was cut short when he was murdered.
DECEMBER 2015 I LSJ 9
28thLAWASIAa success More than 300 lawyers and judges from 28 international jurisdictions gathered in Sydney for the 28th LAWASIA Conference in November. Travelling from regions as diverse as Hong Kong, the UK, Nepal, Kazakhstan, and Myanmar, delegates gathered to hear addresses on the theme of cross-border law and practice in Asia-Pacific. Michael Tidball, CEO of the Law Society of NSW and LAWASIA, said important issues around the rule of law unite lawyers from such diverse backgrounds. “The glue of LAWASIA is the rule of law. Rule of law issues are the bedrock values that underpin civil society,” said Tidball. LAWASIA’s main objective is to foster professional and business relations between lawyers, businesses and government representatives in the Asia-Pacific region. Tidball said Sydney’s central location among global connections makes the city a prime hub for legal business operations in the region. Key presentations at the conference included a speech by Professor Nicholas Cowdery on the Legal Response to Terrorism and a presentation by The Hon. Michael Kirby on why LAWASIA’s lawyers have responsibilities to help reform anti-LGBT laws. A number of forums were held to discuss pertinent cross-border issues, looking at the growth of Asian economies and the contemporary challenge this poses for lawyers.
YOUNGLAWYERS COMMENDED AT2015PATRON AWARDS The winners of the 2015 NSW Young Lawyers Patron Awards were announced at the Young Lawyers Annual Assembly Gala Dinner on 7 November. Now in their fifth year, the awards recognise exceptional contributions by NSW Young Lawyers to the legal profession and the community. Migration lawyer Besmellah Rezaee was awarded the distinguished Young Lawyer of the Year award for his extracurricular contributions to public debate in immigration law, as well as dedication to advancing the rights of vulnerable communities within Australia. The Best Community Project award went to the Workplace and Safety Law Committee for its “Pro Bono Duty Solicitor Scheme for the Fair Work Commission” and the Criminal Law Committee received the Best Professional Project Award for its “A Day in the Life of a Criminal Lawyer Program”.
A new category of award was also announced to recognise the outstanding contributions of Thomas Spohr, a senior solicitor at the NSW Office of the Director of Public Prosecutions and former President of NSW Young Lawyers, pictured above. Spohr received the Young Lawyer Exceptional Achievement Award in recognition of his exceptional contribution to NSW Young Lawyers over the past nine years and his significant and broad contributions to the legal profession generally.
Clockwise from top: Law Society of NSW and LAWASIA Chied Executive Officer Michael Tidball; lively discussions at the forum; Akio Harada, Japan, and Christopher Leong, Malaysia; The Hon. Michael Kirby.
10 LSJ I DECEMBER 2015
2016PLANNING CONFERENCE Councillors and executive
members of the Law Society of NSW, along with senior sta members, attended the 2016 planning conference in the Blue Mountains in mid-November. Chaired by incoming Law Society President Gary Ulman, the team mapped out the 2016 strategy for the council and welcomed several guest speakers, including Chief Justice James Allsop and Ed Santow, chief executive o cer of the Public Interest Advocacy Centre. Each spoke about challenges to access to justice. Journalist and author Michael Pelly updated the group on his progress writing the history of the Law Society of NSW, which will be published in 2016.
MANYMOVEDBYANNUAL TRISTANJEPSONLECTURE More than 230 lawyers attended the annual Tristan Jepson Memorial Foundation lecture in Sydney on 27 October. Alex Malley, chief executive o cer of CPA Australia and author of The Naked CEO , was the keynote speaker, delivering an inspiring and emotional address. The foundation was established in 2009 to honour UNSW law graduate Tristan Jepson who took hiw own life in 2004 after
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Alex Malley and Marie Jepson from the Tristan Jepson Foundation.
DECEMBER 2015 I LSJ 11
Crime rates falling BY JANE SOUTHWARD Police, academics, lawyers and social workers gathered at the Law School of the University of Sydney on 5 November for the Contemporary and Future Crime Trends Conference. Don Weatherburn and Paul Nelson, from the Bureau of Crime Statistics and Research, told the conference crime rates were falling around the western world. Among the explanations were increased sanctions for criminals and an increase in security due to new technology. Professor Mark Taylor, a professor of Environmental Science at Macquarie University, presented on the association between lead emissions and aggressive crime in young adults. He said there was clear evidence of a link between exposure to lead in children and crimes 20 years later. “There is no safe level of lead in anybody and the costs of lead exposure are enormous,” Prof Taylor said. He said the most heavily contaminated children lived in Australia’s premier lead mining and smelting towns where lead emissions in the air and dust remained far too high: Mount Isa, Port Pirie and Broken Hill. Emissions from mining and smelting were the primary source of exposure in these communities, he said, and local children’s blood lead levels signified a public health crisis. Roxanne McMurray, a spokesman for Save our Women’s Services, presented on domestic violence and the concern that one to two Australian women were killed each week by their partners. “I guarantee that if one to two people were being killed by sharks each week there would be new laws to prevent this happening,” Murray said. She commended NSW Premier Mike Baird and Prime Minister Malcolm Turnbull for their strong language condemning violent men but said funding cuts to services for women and children escaping violence were crippling services. “The problem is being overlooked as, if women have nowhere safe to go to, it’s too hard to leave and they won’t leave,” McMurray said. One in three women experienced violence from a male they know at some time in their life. She said the NSW Government’s reforms had had a “devastating effect” on services. Of the 74 women’s refuges in NSW, just 14 offered specialised domestic violence services whereas 70 used to. Tessa Boyd-Caine, deputy CEO of the Australian Council of Social Service, presented figures confirming that poverty in Australia was at high levels and growing. Some 13.9 per cent of the Australian population (2.5 million people including 600,000 children) were living below the poverty online. Of these, one in three could be classed as “working poor”, meaning they had jobs but didn’t earn enough to live above the poverty line. Boyd-Caine said the Newstart allowance of $261 a week for unemployed single people had not increased for 20 years. She said the growing number of poor put great pressure on community services including the need for community legal centres.
OranaLawSocietyhonours regional solicitors
NEWSCHEMEFOR INDIGENOUSENTERPRISE The Law Society has announced a new partnership with the NSW Indigenous Chamber of Commerce to deliver a pro bono legal assistance referral scheme for Indigenous enterprise. Consistent with self-determination principles, the IELA scheme is a practical way for the legal profession to assist in reconciliation efforts. The benefits of Indigenous-controlled enterprise are potentially significant for communities. For example, it is understood that 72 per cent of the surveyed staff members employed by Indigenous businesses certified by Supply Nation are Indigenous. The IELA scheme offers legal advice to assist enterprise in the early stages of development, such establishing a legal entity or other business model, tax, workplace law, commercial leasing, intellectual property, tendering processes, building and construction law, contract law, trade practices, consumer law, corporations law, e-commerce and privacy. For more information about the scheme and a registration form, email IELA@lawsociety.com.au. If you would like to discuss the Law Society’s reconciliation work in general, contact Vicky Kuek, Principal Policy Lawyer at firstname.lastname@example.org . The Orana Law Society (OLS) paid tribute to some of its most senior members at the OLS annual dinner in Dubbo on 16 October. Orana Law Society draws legal practitioners from the largest region in NSW – a vast area in the central north of the state, comprising the regional shires of Dubbo, Bourke, Walgett, Brewarrina, Gilgandra and Coonamble. A select group of nine solicitors and magistrates from this region were awarded life memberships for their continuing services to the legal profession. NSW Legal Services Commissioner John McKenzie presented the awards in front of more than 40 guests. McKenzie also gave the keynote speech on the night, followed by OLS President Andrew Boog. Boog, who has been re-elected as OLS President for the 10th time, said the prestigious award of a life membership reflected a practitioner’s “long, meritorious contribution to the law and their communities”.
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Richard Tadros, Investigator, Trust Accounts Department (TAD) at the Law Society, delivered a talk to bequest executives representing various charities in NSW on 16 October. The executives from charities including the Heart Foundation, the Children’s Hospital at Westmead and National Breast Cancer Foundation, gained an understanding of the work undertaken by investigators from the TAD and, in particular, the regulation of asset distributions from deceased estates made
themselves as a beneficiary of a deceased estate; • the role of the TAD in ensuring that law practices across NSW complied with the laws concerning trust money; • the conduct of investigations by TAD of solicitors trust and o ce accounts to detect and prevent fraud;
• the rules and legislation governing solicitors’ dealings with deceased estates, including the Solicitors Conduct Rules 2015 and Legal Profession Uniform Law (NSW); and • examples of misappropriations made
by solicitor executors. The meeting covered: • how to defend the rights of all, including charities that find
by solicitor executors where a charity had been nominated as a beneficiary in a will.
Complete a Legal Practice Management Course in 2016 If you want to become a sole principal, partner , solicitor-director or in-house solicitor on the record , the College’s Legal Practice Management Course meets all NSW Law Society requirements. SOLE PRACTITIONERS 11, 12 and 13 February 2016 or 3, 4 and 5 March 2016 SMALL-MEDIUM FIRMS 17, 18 and 19 March 2016
CORPORATE + GOVERNMENT 3, 4 and 5 February 2016 or 4, 5 and 6 May 2016
New handbook now available! Call 02 9965 7111 or email email@example.com
DECEMBER 2015 I LSJ 13
Cross-examination Test your legal knowledge ...
1. Which former Sydney Swans football star has been asked to run as a Labor candidate at the next federal election?
2. True or false – it is legal to ride a quad bike without a helmet on public roads in Queensland.
3. How many states in the USA have legalised euthanasia for terminally ill patients?
OURLADYOFMERCYCOLLEGEPARRAMATTA WINSMOCKMEDIATION (AGAIN!) Year 9 and 10 students from Our Lady of Mercy College Parramatta won the Law Society’s mock mediation grand final for the second year in a row. The students battled it out against competitors from Hurlstone Agricultural High Schools on 30 October. Ellie Pietsch, General Manager of the major sponsor Resolution Institute, attended and professional mediator and arbitrator Mark Buchanan volunteered as judge. Buchanan applauded the two teams for excellent characterisation as di cult stakeholders, and the calm yet strategic approach taken by their designated mediators. More than 160 schools took part in mock mediation exercises in 2015, with numerous scripts used to challenge students to use their skills to reach agreements and resolutions over an array of topics. University assignment conflicts, car dealership dilemmas and, in the grand final, a small business workplace dispute over team productivity, were some of the issues the students grappled with. Members wishing to register as volunteer magistrates, coaches or scriptwriters for the 2016 Mock Mediation competitions can contact the Law Society at firstname.lastname@example.org.
4. Under NSW road rules, what is the punishment for hanging your arm out of a moving car’s window (technically termed a “limb protrude”)? Discrimination Commissioner between 2007 and 2015? 6. Name the civil Act that governs the law of negligence liability in NSW. 7. What does “phoenix activity” refer to in the context of corporate law? 8. What is the name of the system of land title used in NSW? 9. In which city is the High Court of Australia located? 10. Which party bears the burden of proof for criminal cases in Australia? 5. Who was the Australian Sex
Answers on page 65.
On 25 September 2015, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Matthew John Fulham be removed from the Roll of Local Lawyers, and that he pay the Society’s costs as agreed or assessed. On 15 October 2015, by resolution of the Council pursuant to Section 327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Gerard Flynn, solicitor, was appointed as manager of the law practice known as Milne Berry Berger and Freedman for a period of two years.
On 15 October 2015, by resolution of the Council pursuant to Section 327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Gerard Flynn, solicitor, was appointed as manager of the law practice known as Milne Berry Berger for a period of two years. On 15 October 2015, by resolution of the Council pursuant to Section 327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Peter R Murphy & Co formerly conducted by Peter Robert Murphy for a period of 12 months.
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Solicitor’s Copy Service
six minutes with
ANDREW HAESLER SC DISTRICT COURT JUDGE Andrew Haesler SC became a judge of the District Court of NSW in 2010 following 19 years as a public defender. He talks to KATE ALLMAN .
FAST. RELIABLE. COST- EFFECTIVE. COPY THAT?
What is the hardest part of your job as District Court Judge? Dealing with increasing maximum penalties. Having the responsibility of sending people to jail for increasingly longer periods, when almost everything tells you the community is not protected by longer, harsher sentences. The irony is that sending people to jail usually is the best indicator that people will reoffend. We are imposing these custodial sentences to protect the community, but the end result is that the offenders come out and commit more crimes. Why we insist on harsher and harsher penalties, rather than education and intervention policies, is beyond me. What is your opinion on juries? I’ve always thought juries get it right. As an advocate, if a jury got it wrong and my client benefited from it, I could put that down to brilliant advocacy (although it also could be incompetence somewhere in the prosecution). Where someone was wrongly convicted, there was always the possibility of an appeal.
Guns in court? I do not allow guns in my court. I cannot conceive of a situation in which a firearm could be used safely – and that includes a terrorist attack on the court. The chances of the criminal with the gun being taken out by a police officer with a gun is next to zero. Knowing the guns police use, the chance of the bullet ricocheting and hitting someone else is very high. As I understand the problem, it is to do with the threat to police officers, not the court. So, if police are the target, I do not want them in my court. If they need guns to protect themselves, that can happen outside my court and they can give evidence via CCTV. Best part of the job? You get to see the law applied and to involve the community in the decision- making process. When you’re a lawyer, you don’t get to make the final decision. As a judge, I like hearing both sides of the argument, looking at the facts, and then saying, “This is the final answer.” I like playing my part in making things run smoothly and fairly with minimum stress.
(02) 9926 0221 email@example.com
DECEMBER 2015 I LSJ 15
mind your ethics
StolenGenerations inNSW The Indigenous Issues Committee made submissions to this inquiry, focusing on non-monetary reparations, including the guarantee against non-repetition of Stolen Generations and contemporary child removal policies; repatriation What the committees are advocating this month ... LAW Reform For the full round-up of Law Society advocacy, see pages 68 and 69. Abolitionof deathpenalty The Criminal Law Committee contributed to a Law Council of Australia’s submission on advocacy to support abolition of the death penalty internationally. The committee has a long-standing policy opposing the imposition of the death penalty and considers its use to be a fundamental breach of human rights and contrary to the rule of law. Injury compensation review The Injury Compensation Committee provided a submission to KPMG, which reviewed the dispute resolution function of the LTCSA. The committee noted that the experience of lawyers dealing with the dispute resolution processes within the scheme was limited due to the fact that the Motor Accidents (Lifetime Care and Support) Act 2006 prevented recovery of legal costs from the authority except in very limited circumstances. of members of the Stolen Generations; and access to records held by the State.
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
ACAUTIONARYNOTE FORMEDIAUSEAND PROFESSIONALCONDUCT BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR, THE LAW SOCIETY OF NSW T he increased use of technology by the legal profession means it is worth noting the
If related to current legal proceedings, photographs, images and comments in social media may be regarded as “publishing or taking steps toward the publication of material ... which may prejudice a fair trial or the administration of justice.” What may be considered an innocent remark, statement or photograph on social media can result in a breach of the rule. With the greater use of social media as a platform for communications, marketing and discussion, it is an opportune time to consider the contents of Solicitors’ Rule 28 and ensure we demonstrate the high standards of conduct that all practitioners are required to maintain. The adoption of the Solicitors’ Conduct Rules under the Legal Profession Uniform Law on 1 July 2015 raises the timely need for the contents of Rule 28 to be highlighted and the required professional standards expected amongst members of the legal profession. We wish our readers best wishes for a safe and happy Christmas and a prosperous 2016.
required standards that apply when contemplating the use of media in the course of practice, with particular emphasis on the Solicitors’ Rules. What are the ethical obligations upon a practitioner when using media and the nature of making a public comment on a legal matter? Rule - 28 - Public comment during current proceedings: 28.1 A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice. Many practitioners easily recognise the application of this rule when applied to the traditional media, displaying adequate caution and compliance. However, when applied to new forms of publication, including social media, the rule is often overlooked and may result in a breach of the solicitors’ conduct rules.
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Conservative thinking holds law firms back The 2015 LexisNexis Roadshow Report has found that conservative cultures were limiting the potential of Australian law firms. The report combined the findings from the 2015 LexisNexis Australian Legal Industry Innovation Survey and 2015 Innovation Panel Series to illustrate how the legal landscape was changing to embrace innovation. Although a nationwide survey of 140 law firms showed that 96 per cent of
the client above all else,” said Joanne Beckett, General Manager of LexisNexis Australia. Beckett also emphasised the importance of a top-down commitment from managing partners and leaders to drive this type of client-focused innovation. Overall, the report emphasised the need for a paradigm shift away from traditional firm growth models to methods of strategic innovation that would drive a client-centric culture. You can read the report at lexisnexis.com.au/2015InnovationReport
lawyers believed innovation was a key to success, few firms were game enough to implement new ideas that were less focused on profit maximisation and were driven by client needs. The survey found that firms still considered revenue as the main measurement for return on their innovation investments. However, panellists from the Innovation Panel Series said the measurement focus really should be client satisfaction. “Innovation should not be just about technology, but transformation,” the report said, adding that law firms needed to be more strategic about implementing technologies that would improve the client experience. LexisNexis’ panel experts agreed that client satisfaction would then create domino benefits in other areas to drive profitability. “Improving the client experience means challenging traditional practices, business and fee models and putting
“Innovation should not be just about technology, but transformation.” 2015 LEXISNEXIS ROADSHOW REPORT
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DECEMBER 2015 I LSJ 17
Briefs FROM THE ARCHIVES
review THE YEAR IN 1975
Take a trip down memory lane through the pages of the Law Society Journal.
THE FAMILYLAWACT BEGINS The Family Law Act comes into play, revolutionising divorce law nationally and introducing no-fault divorce. The legislation means couples no longer need to show grounds for divorce but can o er “irreconcilable breakdown” as the grounds for ending a marriage. A 12-month separation is required. Not everyone welcomes the changes. The Honourable Norman Jenkyn QC, a retired Justice of the Supreme Court, writes in the Journal : “Few Acts of the Australian Parliament have caused such a marked division of opinion as has this one. There are those who believe that the act will provide a panacea for most, if not all, matrimonial ills. There are others, and I am one, who fear that the radical alteration to the law relating to the dissolution of marriage which this legislation produces could have serious sociological consequences and tend to undermine the institution of marriage. Only the passage of time will provide the answer. “It seems to be at least a possibility that marriage could deteriorate into a union regarded initially as of a temporary nature … I firmly believe that the continuance of the institution of marriage, with its emphasis upon family life, is basic to the survival of our civilisation. “… A heavy burden of responsibility will rest upon the members of the legal profession who practice in the Family Law courts ... Unless they develop their sincere and positive e orts to the task of reconciling divided spouses and to stabilise the marriage, whenever that is humanly possible, rather than to that of setting the wheels of litigation in motion, then these admirable statements of principle in the Act may simply develop into pious expressions of unfulfilled hopes.” FIRSTGRADUATESFROMUNSWLAWSCHOOL At the end of 1975, the profession celebrates the first UNSW law graduates – 120 in total – who complete their course at UNSW. Most go on to complete six months further study at the College of Law. Professor H Whitmore, Dean of the UNSW Faculty of Law, writes in the Journal : “I shall be writing over the next month or so to all practices in NSW, city and country, to explain in some detail the overall structure of our courses and something of the philosophy behind what we do here … I am most concerned that our students should be a orded every opportunity to obtain the articles or employment of their choice.”
LEGALAIDBILL A H Loxton takes over as President of The Law Society of New South Wales and describes the Legal Aid Bill 1975 as “one of the most critical pieces of legislation a ecting or relating to the legal profession”. “Legal Aid is now regarded as a civil right,” Loxton writes in the Journal . “The private profession must assess the e ect that its attitudes and services have on the methods to be employed to satisfy that right.”
WHAT’SNEW? In a new human rights protection, the Racial
Discrimination Act 1975 (Cth) begins, making it illegal to treat people unfairly because of race, colour, descent, national or ethnic origin, or immigrant status. The new law promises fair treatment for all people in regards to employment, education, and access to services. Medibank is introduced in July, and Australia Post and Telecom are formed from the Postmaster-General’s Department (PMG).
366 people apply to the Supreme Court of NSW for admission as solicitors.
The nation celebrates the achievements of women as 1975 is deemed the United Nations International Year of Women.
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