LSJ - December 2016
ISSUE 29 DECEMBER 2016
WHY JULIE BISHOP FINDS STRENGTH INWARMTH, INTELLECT AND FASHION
GOINGITALONE THE TROUBLING RISE OF THE SELF-REPRESENTED LITIGANT
ANAUSTRALIATHAT SPEAKS TOUS ALL STAN GRANT ISSUES A POWERFUL PLEA THEMESSYPOLITICSOF LEGAL ADVICE WHAT NOW FOR THE SOLICITOR-GENERAL? ARE YOUA LEADEROR JUSTABOSS? WHY IT REALLY MAKES A DIFFERENCE NEWMEDIAANDTHE FUTUREOF LAW HOW DIGITAL IS DRIVING CHANGE
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22 GLOBALFOCUS Shaeron Yapp reports on new legislation in the United Kingdom to tackle modern slavery 24 INFOCUS The u se of video links in NSW courts rose by more than 400 per cent between 2002 and 2014. What does it mean for the lawyer/client relationship? 28 COVERSTORY Foreign Minister Julie Bishop tells Julie McCrossin about becoming a partner in a law firm at 26, and the source of her personal confidence
48 DAY INTHELIFE
More than one in three people appear in court without a lawyer. Dominic
Michelle Sanson has the legal job many people want. The former Blakes solicitor tells Jane Southward about her humanitarian work with the United Nations 52 LIFEOUTSIDETHELAW Saranpaal Calais tells how he balances work as a solicitor with service in the Sikh community 54 BEINGWELL INTHELAW An extract from a new wellbeing book published by NSW Young Lawyers, the Law Society and ANU
Rolfe reports on the implications of this growing trend 38
THELAWANDJUSTICE Stan Grant says the nation has unfinished business when it comes to how it treats Indigenous people and a treaty is just one important step 42 CAREERCOACH Boss or leader? Fiona Craig explains the di erences
ISSUE 29 I DECEMBER 2016 I LSJ 3
68 ADVOCACY: THE LATEST IN LAW REFORM 70 STATUTORY: THE ROLE OF THE SOLICITOR-GENERAL 73 FAMILY: GUIDE FOR DRAFTING PARENTINGORDERS 74 WILLS: INSURANCE, LIFE TENANTS & REMAINDERMEN 76 INTERNATIONAL: TIMOR GAP CONCILIATION 78 PERSONALPROPERTY: FARMERS & THE PPSA 80 TAXSTINGS: SUPER FUND PROPERTY SALES 81 CONTRACTS: RISKS OF ELECTRONIC SIGNATURES 82 EMPLOYMENT: WHOOWNS SOCIALMEDIA ACCOUNTS 84 UNIFORMLAW: RESPONSIBILITIES OF PRINCIPALS 86 CLASSACTIONS: GROUP MEMBERS’ RIGHTS 88 RISK: ADVISING THIRD PARTY GUARANTORS 90 PERSONAL INJURY: NDIS & COMPENSATION 92 TECHNOLOGY: NEWMEDIA AND THE LAW 94 CASENOTES: HCA, FCA, FAMILY, WILLS & CRIMINAL
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS 14 THE LSJ QUIZ 19 CAREERMOVES Who moved where this month 20 OUT AND ABOUT
The power of rest
Tips to boost your health over summer 58 IRELANDTRAVEL GUIDE
Ute Junker gives her tips on the best of Dublin and recommends a luxury retreat near Cork 61 LIBRARYADDITIONS 64 LIFESTYLE Book reviews, events and our movie giveaway 66 NON-BILLABLES Yarns we can’t bill for 106 EXPERTWITLESS
Photographs from the Annual Members Dinner
Stand, bow, sit. A look at appropriate court behaviour
Jordan Sosnowski on legal work to save dolphins
Fashion, etiquette, and tips on how to land those unadvertised jobs
Because if we can’t laugh at ourselves ...
4 LSJ I ISSUE 29 I DECEMBER 2016
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A WORD FROM THEEDITOR
Welcome to the nal edition of LSJ for the year. And what a year it has been! With 11 editions under our belts in 2016, we certainly have featured some impressive characters on our covers – from Australian Human Rights Commissioner Ed Santow, to Father Frank Brennan, and NSW Australian of the Year Deng Adut. And, in a last hurrah, we are fortunate to feature the esteemed lawyer and politician Julie Bishop. Whatever side of the political fence you are on, it is hard not
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
to admire Bishop and the strength, poise and determination she brings to the role of Foreign Minister. She is the ultimate case study of a talented woman shattering the glass ceiling and, as you’ll read in Julie McCrossin’s piece on page 28, Bishop attributes much of her success to her legal grounding. Speaking of successful women, we are looking forward to 2017 – a year during which a woman, Pauline Wright, will be at the Law Society’s helm as President. It’s an appropriate state of a airs for a year that is tipped to see, for the rst time in history, more female lawyers than male lawyers in our profession. Until then, rest well, recuperate, and we look forward to connecting in the New Year.
Michael Nguyen Photographer Jason McCormack Publications Coordinator 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 © 2016 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
Dominic Rolfe is a Sydney journalist. In “Flying Solo”, he reports on the implications of self -represented litigants at a time when more than one in three people appears in court without a lawyer. It’s a growing trend a ecting court times and solicitors. Feature p44
Carolyn McKay holds a Commerce/Law degree and completed her PhD this year at Sydney Law School where she lectures in criminal law. She covers the impact of the use of video links – a trend that has grown four-fold since 2002. In focus p26
Julie McCrossin trained as a lawyer and is a writer, broadcaster and facilitator. On the eve of the US election she interiewed Foreign Minister Julie Bishop, who trained as a lawyer and holds practisting certificates in three states. Cover story p28
Ben Mackay is a solicitor at Matthews Williams Solicitors & Conveyancers. He has an interest in agribusiness and insolvency law. He writes about the benefits for farmers of the Personal Property Securities Act 2009. Personal Property p78
Cover photograph: Jason McCormack
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 FEBRUARY 2017
6 LSJ I ISSUE 29 I DECEMBER 2016
T raditionally, the President’s final message in the LSJ is an opportunity to reflect on key campaigns and achievements of the year. However, here – as with my recent Annual Members Dinner speech, – I will also briefly look to the future of the legal profession. Access to justice has been an enduring theme in 2016 and has been central to the conversations we have had with state and federal governments. With the support of the suburban and regional Law Society Presidents, we have sought to highlight the impact of court delays on individuals and their families, particularly in the Federal Circuit Court, Family Court and District Court. The suburban and regional Law Societies also have been hugely supportive of our ongoing campaign to oppose changes to CTP Green Slip Insurance in NSW and privatisation of certain sections of the NSW Land and Property Information Service, as well as other key projects and campaigns.
Key milestones have also been the launch of the Law Society’s Roll of Honour, which
commemorates solicitors who fought – and, in some cases, died – in World War I, and the publication of Defending the Rights of All: A History of the Law Society of New South Wales . To my mind, it is vitally important that, as a profession, we remember and honour our rich history. Looking to the past informs and enriches the future of the profession. A reoccurring theme that came from contact with my counterparts overseas this year has been widespread recognition of the Law Society of NSW on the world stage for the strength of our organisation in terms of our membership, our co-regulatory role, and the breadth of work made possible through our partnership with the regional and suburban Law Societies. The Law Society’s 19 policy committees make more than 100 submissions to government, law reform bodies, parliamentary inquiries and courts each year, advocating for positive reform in the legal and justice systems. I wish to recognise this important work supported by our excellent Policy and Practice Department. I also note that the Law Society has established three new committees for 2017, strengthening our ability to deal with policy and practice issues arising in relation to Diversity and Inclusion, Public Law, and Privacy and Communications. Now we come to the future. Discussions during the Future of Law and Innovation in the Profession (FLIP) hearings have been fruitful over the course of seven months, and I wish to thank the more than 100 witnesses who contributed to this project. As a result, we have created a rich database of materials that showcase and draw on the expertise of researchers in the field. I am pleased that our incoming president, Pauline Wright, who has been Deputy Chair for the project, will take on leadership of the next phase that builds on this important work. Members should expect to see a report early next year that will recommend ways of approaching the professional, social and regulatory dimensions of the enormous changes underway in the legal community. Finally, as many of you are no doubt aware, my chosen charity for the year has been Ovarian Cancer Australia. I thank all those who gave so generously to this important cause and who took part in the fundraising initiatives in support of the 2016 President’s Charity. I also wish to thank the excellent group of councillors, senior executive team and staff members who have supported me throughout the year. Special thanks go to Chief Executive Officer Michael Tidball, who has provided wise counsel and support throughout my year as President.
8 LSJ I ISSUE 29 I DECEMBER 2016
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ISSUE 29 I DECEMBER 2016 I LSJ 9
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LETTERS TO THE EDITOR
A selfless act What a joy to read Brendan Manning’s
Crossing the (cover) line? I have just received the latest issue of the LSJ . While the quality is as high as ever, I am disappointed in the headline on the front page for the article about Mr Deng Adut (November LSJ ). While the word “gun” has the particular colloquial meaning of “expert”, I feel that this word in this headline is very inappropriate in light of Mr Adut’s personal history. The linking of the subject matter of a boy soldier with “gun” as segue to his current profession is below the standards of your journal, in my opinion. Ivan Kent, solicitor I can’t see you … David Lloyd (November LSJ ) mentioned that, as a former judge, he “experienced some solicitors appearing in court in casual clothes, such as jeans and open-necked shirts”. This prompts me to inquire whether it’s still the practice of the bench to admonish such delinquent practitioners with the quaint rebuke, “I can’t see you” and, if so, whether Generation Y, less still Generation Z, understands what that means? Edward Loong, Milsons Point The state of language I agree with Terry Dwyer (November LSJ ) in that the words in the Commonwealth Constitution must be interpreted and have their meanings as at the time when the Constitution was written. At that time, it would have been axiomatic
that a marriage would have involved a male and a female. If we can simply redefine words to “update” the Constitution, then why not, for example, redefine “lighthouses” in s51 to include fire stations, and so the Commonwealth could take over NSW Fire and Rescue? Indeed, with some inventive redefining, the Commonwealth could take over all the functions of the various States and, effectively, abolish the States. Surely, that cannot be the law. D. Mueller, Parramatta A not-so-smiley face In the article titled “Judge uses emoji in official court ruling” (November LSJ ) it states that Justice Peter Jackson used an emoji symbol “because he hoped the children would read the judgment” and then goes on to state, “It is thought to be the first [judgment] in English legal history that has included an emoji, or web symbol, to explain a point of evidence”. When you read the judgment, the symbol is not used to explain a point of evidence. It is used because it IS the evidence, namely placed at the end of an email written by one of the parties. An argument was raised that the use of the symbol altered the meaning of the email – specifically, it was alleged the emoji was winking, which might suggest the email was tongue-in-cheek or not to be taken seriously. This is what Justice Jackson was explaining in his judgment. The article is misleading, either deliberately or because
letter to the editor (October LSJ ). Too often, in these strained economic times, we forget to laugh at ourselves, and so it is such a relief to know that some members of the profession have maintained their sense of humour. Mr Manning’s tone captures perfectly the reactionary male voice; his grasp of satire is complete (the comparison of childbearing and navel contemplation in the Himalayan mountains was a particularly sophisticated use of the form. Perhaps Mr Manning has a sneaky Arts degree?) That a solicitor with a thriving inner-city practice can take the (obviously not inconsiderable) time to pen such a witty morsel for the enjoyment of the broader profession is a tribute to him as a renaissance man. Kate Haddock, Banki Haddock Fiora Just not cricket At the risk of being howled down by cricket supporters, I was stunned (perhaps an unfortunate word choice here) that time and money was spent on an inquest into the cricketing death of Phillip Hughes. Isn’t the simple answer volenti non fit injuria and that an improved helmet will reduce the risk? Aren’t there more important social problems on which to apply our resources, such as the police handling of the tragic Lindt cafe siege? David Grinston, Crows Nest
FROMBOYSOLDIER TOGUNSOLICITOR HOWDENGADUT’SEXPERIENCEASACHILD SOLDIERANDREFUGEESHAPEDHISFUTURE
REFLECTIONSOFAJUDGE STEPHENSCARLETTONWHETHERYOUNG LAWYERSAREMEETINGEXPECTATIONS
ADVANCINGOURWOMENLAWYERS ANEWCHARTERFORREACHINGEQUALITY FACINGTHEMUSICWITHDIGNITY DEALINGWITHMISTAKESATWORK THEINTEGRITYOFTHERAPEUTICRECORDS WHY ITMATTERS INFAMILYVIOLENCE THECHANGINGNATUREOFEVIDENCE DEVICESANDTHE INTERNETOFTHINGS
LSJ11_Cover_spine_November_Deng use this.indd 1
20/10/2016 11:12 am
WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WINLUNCHFORFOUR at the Law Society dining room. E: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! KateHaddock has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 29 I DECEMBER 2016
We don’t want other families to suffer
profession so only men progress is also without any evidence, save anecdotal complaints by women groups. If I was a young lawyer starting out I would be outraged that the Law Society has decided to preference women in this fashion. I would like to see actual evidence, not assumptions, regarding female lawyers su ering some sort of prejudice that prevents them progressing in their careers rather than the opinions of those who believe women su er discrimination in the workforce. Realistically, if you work hard in law you will succeed. The disproportionate number of barristers and/or partners in law firms of men and women is a function of the time it takes to rise to the top in this profession – not some mysterious conspiracy of elder white males. Does the Law Society act for all its members equally? If so, then your advancement of women is discriminatory against male members of the society. The only recourse to correct this imbalance is to positively discriminate in favour of young male lawyers rather than my “gender blind” approach in employing and paying those who can do the job regardless of their sex, creed or colour. However, as I am not sexist, I will continue to employ and support female lawyers. I will continue to brief female barristers.
the writer failed to read the judgment. An article about the interpretation of symbols contained in evidence is quite interesting. Why didn’t the writer focus on
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this (real) point? Nikita Robertson, Wollongong
Woe is a young, male lawyer I appreciate the e orts of the Law Society to promote the advancement of women in the profession. However, could you please tell me what disadvantage they are under that requires special treatment to ensure their success? I am a male who has had no assistance from the Law Society other than what is available to all members to advance my career. Do women have a special disability that I am unaware of? Or is it the Law Society’s intention to discriminate in favour of women in the legal profession and leave males membership fees to finance this scheme and, if so, when was I consulted that I would be supporting one sex over another? Many of the assertions of feminists regarding gender imbalance are incorrect. The alleged “pay gap” does not exist. Rather, what people earn may be di erent depending on how many hours you work, what type of law you practice, and who employs you. The alleged conspiracy that white males have structured the to fend for themselves? I assume you are using
– Eleni Horbury with her daughter Sophie, and cancer researcher Dr Anne Rios.
For more information please contact Ms Susanne Williamson, Head of Fundraising, on 9345 2962 or firstname.lastname@example.org W wehi.edu.au
Brendan Manning, Manning Lawyers
CANCER | I MMUNE D I SORDERS | I NFECT I OUS D I SEASE
ISSUE 29 I DECEMBER 2016 I LSJ 11
SudaneseandMalaysian lawyers steal showat AnnualMembersDinner
BY CLAIRE CHAFFEY PHOTOGRAPHY: CHRIS GLEISNER
Two lawyers hailing from abroad stole the limelight at the Law Society’s Annual Members Dinner in October, entertaining the crowd with sharp wit and tales of inspiration. Sudanese-born solicitor Deng Adut won the prestigious President’s Medal, which 2016 Society President Gary Ulman presented at the event on 27 October. Adut, who appeared on the cover of the November edition of LSJ and spoke at a Thought Leadership breakfast last month, was recognised for his extensive community and pro bono work in criminal and refugee law. He was the unanimous winner among the panel of judges. Accepting the award in front of more than 250 guests at Darling Harbour’s Dockside Pavilion, Adut joked that when he got the call from the Law Society informing him he had won the medal, he got quite a shock. “Normally, when you get a call from the Law Society, it’s not great,” he joked. A humble Adut, who has also been named NSW Australian of the Year, said he felt he was “too young” to win the President’s Medal especially when so many lawyers in the community did so much for others. He added that winning the medal would inspire him to work even harder and do even more for vulnerable members of the community. In the keynote address, Malaysian lawyer Chris Leong, President Elect of LAWASIA and former President of the Malaysian Bar, focused on the contribution of the Law Society in protecting the rule of law across the Asia Pacific. “Being in Australia and busy with your legal practice, you may not know the impact that your actions and statements as a Law Society, and as a member of LAWASIA, can have towards the betterment of the rule of law in other countries,” Leong said.
would be present to ensure order and the safety for our members. “On a separate occasion, the police threatened to arrest me, as the then President of the Malaysian Bar, for sedition. On both occasions, numerous Bar Associations and Law Societies from other jurisdictions, including the Law Society of NSW, and international law organisations such as LAWASIA, spoke up for us and for the rule of law. “I believe that the voices and support from the Law Society of NSW and other law organisations played a crucial part in focusing international attention and scrutiny such as to have made a difference. To members of the Malaysian Bar, it also meant that we did not stand alone.” Leong said the challenges to the rule of law in Malaysia continued, with the Bar Association recently filing for judicial review of a matter in which a corruption investigation against the Prime Minister was closed on the orders of the Attorney-General. “In what appears to be a reaction, the Attorney- General of Malaysia has produced a draft bill seeking to interfere with the independence of and to weaken the Malaysian Bar,” said Leong. “The Malaysian Bar is fighting this. In this endeavour, we are humbled to find that our friends, the Law Society of NSW and other national Bar Associations, Law Societies and international law organisations like LAWASIA, are again with us.” The night concluded with a key raffle that raised $8,500 for Ovarian Cancer Australia. The lucky winner of a Cerrone necklace valued at $8,000 was Jean- Pierre Chaina.
Law Society President Gary Ulman presents Deng Adut with the 2016 President’s Medal.
“There are jurisdictions where the fight for the rule of law and good governance is still at a rudimentary level. The fight is to establish the very principle of the rule of law as a foundation for democracy. The fight is for the principle of good governance as the basis for a just and responsible society. The struggle is for laws and institutions which would recognise and protect the fundamental rights of individuals. These challenges are daunting and success is far from certain.” Leong spoke of the current situation in Malaysia, where there are significant challenges to the rule of law. “The Malaysian Bar has been a fierce opponent and advocate against the Sedition Act [which, in effect, criminalises aspects of freedom of speech or expression] and its application. In 2014, more than 2,000 members of the Bar, in court attire under the scorching Malaysian sun, marched to present our memorandum against the Sedition Act to the Minister in the Prime Minister’s Department. In the lead-up to this protest march, the Bar faced threats of possible violence by opposing groups and of disruption to its event. The police were initially silent as to whether they
View all photos from this year’s Member Dinner on the LSJ app.
12 LSJ I ISSUE 29 I DECEMBER 2016
Councillors and executive members of the Law Society of NSW, along with senior sta members, pictured right, attended the 2017 planning conference on the Central Coast in mid-November. Chaired by incoming Law Society President Pauline Wright, the team mapped out the 2017 strategy. Speakers included President-elect of the Law Council of Australia Fiona McLeod SC, President of the Australian Human Rights Commission Professor Gillian Triggs, and Sean Gordon, CEO of Darkinjung Aboriginal Land Council. Topics covered included asylum seekers and the law and the Law Society as an advocate for Indigenous justice. The team visited Bara Barang cultural centre, which provides training and services to engage Aboriginal people and youth. Bara Barang is Wright’s charity for 2017.
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ISSUE 29 I DECEMBER 2016 I LSJ 13
NEWNSWYOUNGLAWYERSPRESIDENTTO BREAKDOWNWALLS INLEGALPROFESSION
BY KATE ALLMAN PHOTOGRAPHY: JASON McCORMACK
While a certain President-elect has been swampingmedia headlines with promises to build walls, the incoming NSWYoung Lawyers President hopes to devote her presidency to breaking themdown.
All law students and lawyers under the age of 36 in NSW are considered members of NSW Young Lawyers. This means there are 15,000 members in NSW. Ryan hopes to make sure all of their voices are heard. “We have a unique opportunity to do work in the public interest to achieve generational change in areas like access to social justice and environmental justice,” Ryan says. “This year, we’ve put together a number of policy statements and law reform submissions that can really make an impact in those areas. I’m keen for us to continue that work.”
“We had about 500 people apply to be volunteers – both as lawyers and translators,” Ryan says. “About once a month we run a clinic where volunteer lawyers and translators sit down in rooms at the Law Society and help asylum seekers fill out applications for temporary assistance visas. It’s such administrative work but it really makes a difference to these people’s lives.” The Refugee Advice and Caseworker Service (RACS) community legal service worked alongside NSW Young Lawyers to develop the refugee program and Ryan is keen to continue this relationship. She
“It would be wonderful to continue to be recognised as a voice of the legal community, because we aren’t just the future of the legal profession –we’re also a large portion of the legal profession right now.” EMILY RYAN
Ryan, 34, attended her first NSW Young Lawyers meeting in 2011 when she moved to Sydney from Lismore to work for the NSW Environmental Defenders Office (EDO). Joining the Environment and Planning Law Committee of NSW Young Lawyers helped satisfy her deep passion for environmental law and policy she developed growing up in the country towns of Gundagai, Lennox Head and Lismore. Impressed by NSW Young Lawyers’ law reform submissions work, Ryan soon became a submissions coordinator in 2012 before she chaired the Environment and Planning Law Committee in 2014. Ryan was NSW Young Lawyers Vice- President in 2016 and gained insights into the work of its 16 committees. She is most proud of her achievements with the Human Rights Committee on establishing a refugee assistance project to help asylum seekers apply for visas in Australia.
is thrilled that NSW Young Lawyers has chosen RACS as its charity for 2017. Ryan plans to explore new ways of helping young lawyers participate in pro bono work. She wants to increase participation in a program that allows young lawyers to volunteer as duty solicitors at the Fair Work Commission. She also wants to work on a project with the Law Society of NSW to collect data about the perceived “glut” of law graduates entering the legal profession each year. “At the moment there’s all this talk on the topic but there’s not actually much data to back it up,” Ryan says. “As lawyers, we want to collect that evidence. It’s really important for us to continue working with students to make sure they know that, yes there are jobs in top-tier law firms but there is also all this other stuff you can do – working in a community legal centre or as an academic or working in government. There is so much good you can do with a law degree.”
Environmental lawyer Emily Ryan, pictured above, has stepped up as President of NSW Young Lawyers and hopes to continue the legacy of 2016 President Renee Bianchi by challenging age-related assumptions about young lawyers and increasing their participation and recognition in the legal profession. “Through Renee’s work this year and the whole team with her, I think we’ve seen an increase in the perception that NSW Young Lawyers is a peak professional body and we are thought leaders,” Ryan says. “It would be wonderful to continue that growth and continue to be recognised as a voice of the legal community. Because we aren’t just the future of the legal profession, we’re also a large portion of the legal profession right now.”
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Professor Gillian Triggs, President of the Australian Human Rights Commission and NSWYoung Lawyers 2016 Patron, announced the winners of the 2016 NSWYoung Lawyers Patron Awards at the Annual Assembly at The Langham Sydney on 5 November. The awards recognise exceptional contributions by young lawyers to the legal profession and the general community.
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2016 NSW Young Lawyer of the Year Marina Kofman, centre, with outgoing NSW Young Lawers president Ren é e Bianchi and 2016 Patron Gillian Triggs.
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St Patrick’sCollegecrownedbest mediators in the state St Patrick’s College Student Golden Gavel was highly commended in this category. The Best Professional Project award went to the Family Law Committee for the Young Lawyers Professional Skills Series, which runs one or two seminars each month from leaders in the field. The International Law Committee was highly commended for the 8th Annual CIArb Australia/Young Lawyers International Arbitration Moot 2016. Marina Kofman was named 2016 NSW Young Lawyer of the Year for her work as Vice Chair of the International Law Committee and her active involvement with the International Bar Association. Sam Murray was highly commended in this category for his sustained commitment to criminal law and public law and government committees of NSW Young Lawyers, including his work in the “A Day in the Life of a Criminal/Civil Lawyer” programs. The Human Rights Committee won the 2016 Best Community Project for the Refugee Assistance Project, which is designed to help people seeking asylum fill in their visa application forms. The Special Committee of Law Student Societies for the
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ISSUE 29 I DECEMBER 2016 I LSJ 15
mind your ethics
Cross-examination Test your legal knowledge ... 1. On what date will Donald Trump take over as President of the United States? 2. What does Australian Prime Minister Malcolm Turnbull earn in his annual salary (to the nearest $50,000)? 3. Under the Australian National Employment Standards, what is the minimum amount of paid sick leave that full-time employees are entitled to each year? 4. Is it illegal to take photographs of a person inside their home from a public street? 5. Can a couple apply for divorce in Australia while living in the UK? 6. Can the couple divorce if one spouse moved back to Australia a month ago? 7. Under the Corporations Act 2001 , how many directors is an Australian proprietary company required to have? 8. According to the 2015 Global 100, which law firm is the largest in the world by number of employees? (Hint: originally a Chicago-based firm and has an office in Sydney.) 9. In a contract of sale for off-the-plan property, what do you call the clause that refers to the final date by which a developer has to finish the project? 10. What does the Latin term ultra vires mean in legal circumstances? Answers on page 65. On 20 October 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Dermot Andrew Duncan, Solicitor, as Manager of the law practice known as C G Taylor & Son for a period of two years. On 17 November 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, solicitor, as Manager of the law practice known as Stephen Gilbert & Associates for a period of two years from 17 November 2016. On 17 November 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, solicitor, as Manager of the law practice known as Castillo Davidson & Associates for a period of two years from 17 November 2016. PROFESSIONALNOTICES
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
BY LINDEN BARNES, ETHICS OFFICE
As the New Year approaches, the Ethics Department reviews the year that was. We have had our usual range of queries – essentially anything you can ethically poke a stick at – because that is the range of what clients present to the solicitors who call us. There were, however, some more frequent issues. One was communications. Often we were asked whether a letter was appropriate, or was it discourteous? If it has the effect of reducing the recipient solicitor to tears, then it is probably reasonable to assume it is discourteous. It is likely to be somewhat off point, too, not focusing on the client but on the solicitor. Remember that rule 4 requires us to be courteous, and rules 32 and 34 guard against unfounded and inappropriate allegations. Undertakings are a real risk area for solicitors. We were frequently asked to waive an undertaking that a solicitor had given. We would love to be able to help, but rule 6 does not include the Ethics Department in the list of who can waive undertakings. It is only the recipient or the Court. Commonly, the problem arises because the solicitor steps in for the client and gives the undertaking the client should be giving. Another risk is that an undertaking doesn’t need to be called that to be that – something of a wolf in sheep’s clothing if you get it wrong. The third issue to include in this list would be instructions. We need them. But as rule 8 points out, they must be competent, lawful and proper. The number of queries we have had about clients who have disappeared, or who are at that tricky stage where they might or might not be competent, shows just what a big issue instructions can be. Always remember with the disappearing client, they could even be dead. As for lawfulness, if it smells, don’t touch it. Very often we get callers saying, “I just have this feeling that there is an ethical problem”. Be confident in that because it is essentially all your good experience at work, helping you identify a problem. It may be easily resolved, but it is very important to identify it and make sure that is the case. So what is the department’s New Year’s resolution? To make
sure ethics remains the hallmark of our profession. Happy Christmas and an ethical New Year to all.
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six minutes with
Why did you decide to become a lawyer after 12 years working as a nurse? When I was working as a nurse at St Vincent’s Hospital in Sydney, my best friend was raped and bashed in the car park. The worker’s compensation insurers originally denied her claim because they said she had “deviated” from her usual route on her way home from work. At the time, I had no idea about law and no idea about negligence issues but the incident led to a union dispute at St Vincent’s and I got involved. That incident gave me a shocking insight into the big, bad world and made me think that maybe I didn’t want to be a nurse forever. Law was a way that I could help people in a different way. What sorts of medical claims do you advise on? The clients I see have often undergone lengthy surgeries. These days, a lot of surgeons are trying to trump each other by doing three or four surgeries in one hit because people can’t afford the time off work to recover. You might think it’s really convenient that the doctor can perform a breast enhancement, tummy tuck and liposuction under one anaesthetic, but the fact is you could be under anaesthetic for five or six hours and many complications could occur. KATE WILLIAMS SLATER & GORDON Kate Williams is the Practice Group Leader of Slater & Gordon’s medical law team in Sydney. Williams worked as a nurse in the eastern suburbs of Sydney for 12 years before she began studying law at the University of Technology. Williams practised as a solicitor on the Gold Coast and in Brisbane, where she was admitted as a barrister, before she returned to Sydney to be admitted as a solicitor in the Supreme Court of NSW in 1995. She gained the Law Society’s Specialist Accreditation in personal injury in 2002 and specialises in acting for plaintiffs in medical negligence claims. She speaks to KATE ALLMAN .
Why do claims often arise from cosmetic surgeries?
I often take enquiries from people who have undergone plastic surgery performed not by a plastic surgeon but by a cosmetic surgeon. Cosmetic surgeons are often cheaper and usually have less experience than plastic surgeons. Any doctor could call themselves a cosmetic surgeon because all doctors technically are trained to do surgery. The difference is that a plastic surgeon is a member of the Royal College of Plastic Surgeons Australia. That signifies that they have undertaken specific training to gain the qualification so they can specialise in plastic and reconstructive surgery. What advice do you have for people looking to have plastic surgery? As consumers of elective surgery, people need to be aware that, in the eyes of the law, this is an autonomous society. People are entitled to make choices about their own bodies. Justice Lucy McCallum delivered a judgment in Harris v Bellemore , which was a leg-lengthening case where the plaintiff lost because he was fully informed of the risks of surgery. McCallum said that people, so long as they’re given all the information, are entitled to make their own decisions about their own bodies. That is the situation I tell my clients.
ISSUE 29 I DECEMBER 2016 I LSJ 17
No thawin iceproblem for regional solicitors
YOUAND YOUREXPERT PANELEVENT
BY KATE ALLMAN
Crystal methamphetamine, or ice, is still rampant in regional areas of NSW and poses incessant problems for rural solicitors, according to lawyers who attended the Law Society’s annual Rural Issues Conference on 21 October. One hundred lawyers attended the full- day conference at the Swissotel in Sydney to discuss the biggest issues facing solicitors in regional NSW. Ice was top of the agenda, as the conference began with a panel discussion about ice and its impact on the lawyers and communities in regional NSW. “The impact of ice in regional areas is different to the experience of city lawyers,” said Law Society President Gary Ulman. “The clients affected you see not only in the office, but in school, the supermarket, at the footy.” Magistrate Michael Antrum from Queanbeyan and Cooma Local Courts said ice-related violence was spreading terror among rural communities, despite data showing that crime rates and overall drug use had actually fallen in recent years. CEO of the Noffs Foundation and author of Breaking the Ice , Matt Noffs, went further and referred to the “media hype” about ice as “cultural fraud”, arguing that statistics showed the ice problem was “nothing like what we saw with heroin”. Murmurs of disagreement were audible responded by saying, “People in the city have no idea how bad the problem is in country areas. Country people are leaving towns in droves because of ice.” Principal solicitor of Dubbo Legal Aid Bill Dickens said that, unlike heroin, the ice problem was pervasive and unique to among the audience. An audience member from the Dubbo region
regional areas. “Just two weeks ago, I saw a man in a jail cell who had bitten off his finger while on ice,” Dickens said. “This was a man who clearly had an addiction problem and should really have been in a treatment facility while he was coming down off the drug. But, in rural areas, we don’t have the Drug Courts or MERIT programs to deal with the issue. There are only 100 beds in drug rehabilitation clinics west of the Blue Mountains, from Moree to Wagga.” “People in the city have no idea how bad the problem is in country areas. Country people are leaving towns in droves because of ice.” The panel noted that violent offences often accompanied ice use and lawyers found it difficult to advise ice-affected clients, who were unpredictable and often acted irrationally. The lack of rehabilitation facilities in rural areas that could divert addicts from prison into treatment was said to be causing a backlog in court cases related to ice. Other topics discussed included the legality of farm-managed deposits, issues of property law, ethics and elder abuse, mining and land access. Ian Coleman SC, a barrister from Culwulla Chambers, presented a paper on family violence and its wide range of impacts on different areas of the law in regional NSW.
NSW Young Lawyers and Unisearch Expert Opinion Services hosted a panel discussion on 27 October at the Law Society of NSW called “You and Your Expert: Getting it Right”. The Honourable Justice Lucy McCallum of the Supreme Court of NSW, Elizabeth Collins SC, Marcus Pesman SC, Robert Casey and Kristy Martire, pictured above, shared their knowledge and barrister Hugh Selby acted as moderator. Casey, a mechanical engineering expert, said one of the biggest problem lawyers had when using expert evidence was asking “extraordinarily broad” questions, as these required experts to answer all aspects of the question whether they were relevant or not. “Preserving your expert’s credibility is vital and an easy way to destroy their credibility is to move outside their area of expertise,” said Pesman. Justice McCallum said it went without saying that expert evidence should “relate to an opinion on a fact that is in issue in the proceedings”. “A judge wants an expert to succinctly articulate the premise that they have assumed and the reasoning that they can apply to their expertise in order to express the opinion they are expressing,” she said.
A guide to presenter notes and slides, research, case studies and supplementary information
is available to conference attendees via the Law Society’s website lawsociety. com.au/cs//groups/public/documents/ internetcontent/1206211.pdf
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MEMBERS ON THE
JEAN-PAULFRATICELLI Joined as a Senior Associate Madison Marcus Law Firm
IANSTREETER Joined as Consulting Principal Keypoint Law
ANDREWLACEY Promoted to Managing Partner McCabes Lawyers
DRLINDSAYSTODDART Joined as Consultant, Estate Planning Owen Hodge Lawyers
KARENBULLUSS Appointed as Principal McInnes Wilson Lawyers
CATEMULLINS Joined as National Executive Partner Nexus Law Group
STEPHANIEMURTANOVSKI Promoted to Director Neville & Hourn Legal
RHYSWILKIE Promoted to Senior Associate Neville & Hourn Legal
JONUIDAM Appointed to National Manager, Property Legal and Commercial News Corp Australia, Sydney
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
ISSUE 29 I DECEMBER 2016 I LSJ 19
Briefs OUT AND ABOUT
ANNUALMEMBERS DINNER Several hundred Law Society members gathered at Dockside Pavilion in Sydney on 27 October. The President Elect of LAWASIA, Christopher Leong, spoke and Society president Gary Ulman presented Sydney solicitor Deng Adut with the 2016 President’s Medal. PHOTOGRAPHHY: CHRIS GLEISNER
View more photos on the LSJ app or at amd2016.com.au/ photos-gallery
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OUT AND ABOUT
ISSUE 29 I DECEMBER 2016 I LSJ 21
Briefs GLOBAL FOCUS
below) to annually publish a succinct statement outlining what they do to ensure there is no slavery in their organisation, and crucially, in their supply chains. Yet the law is toothless. The only requirement is to sign and publish the statement. Failure to publish could result in the Secretary of State bringing injunctive proceedings to require compliance, and continued resistance could result in unlimited civil fines. However, the content of the statement is not regulated. A corporation could publish a statement reading, “No slaves here” and face no legal penalties. Clearly, section 54 is designed to be market driven – a race to the top in improving standards, enforced by the court of popular opinion. Reputational risk will be the driving factor for directors when approving statements. Corporations are not expected to audit every aspect of their business and every supply chain, but rather to demonstrate a strong commitment and proportional response within their spheres of influence. Non-binding government guidance notes suggest that the statement could cover six main areas, which are: • structure of business and supply chains • internal and external policies • due diligence processes • risks identified and mitigation strategies • key performance indicators to demonstrate effectiveness of policies • training and whistleblowing policies. Every corporation (whether British or foreign) must comply with section 54 if it has a business or part of a business in the UK, supplies goods or services, and has a turnover of more than £36 million. The definition of “carrying on business” is fluid, but government The threshold test – affected companies
TheCEO and the slave
More than 45 million people are working as slaves around the world – including at least 4,300 in Australia – in operations generating billions in profit. The United Kingdom is using legislation to try to tackle the problem. SHAERON YAPP reports.
S lavery is a hugely profitable criminal activity, each year generating US$150 billion around the globe, according to a 2014 International Labour Organization report. Governments around the world have begun to recognise that the power to fight it lies in the board room. The UK has introduced the Modern Slavery Act 2015 , which has global reach through supply chains that span the world. Under section 54 of the Act, directors of qualifying foreign and British companies that do business in the UK must make slavery a compulsory item on the board agenda. Section 54 is part of a growing global trend towards increased corporate transparency, and similar laws are expected both internationally and in Australia. Modern slavery The term “modern slavery” covers human trafficking, slavery, servitude and forced or compulsory labour
offences. Its broad definition reflects the fact that modern slavery is a complex crime and can manifest in many different ways. The Walk Free Foundation’s Global Slavery Index put the number of slaves worldwide at 45.8 million. It estimates there are 4,300 slaves in Australia. Identified risk areas include food processing operations and small farms in rural Australia, where migrant workers are subjected to forced labour and abusive practices. Instances of modern slavery have also been identified in suburban Australia, where victims have had their passports withheld, receiving little to no pay while being forced to work under extreme conditions. Most relevant for major Australian corporates, the biggest risk of slavery is within complex supply chains. The slavery statement Section 54 is a simple disclosure obligation. It requires corporations (that meet the threshold test described
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