LSJ December 2017
ISSUE 40 DECEMBER 2017
THEHIGHCOSTOF A FAILINGSYSTEM WHY AUSTRALIAN FAMILY LAW IS IN TATTERS ANDWHAT MUST BE DONE TO FIX IT
MORETHANSTATISTICS ONE LEGAL SERVICE’S COMMITMENT TO MAINTAINING HUMANITY IN REFUGEE CASES
DRIVING INNOVATION INLAW MEET UBER’S ASIA PAC HEAD OF LEGAL IS YOURCLIENT LEGALLY INSANE? A GUIDE TO TESTING THE EXPERTS ACONSTITUTIONALCATASTROPHE THE SECTION 44 DEBACLE EXPLAINED ANEWERA INCOMPETITIONLAW OUTCOMES OF THE HARPER REVIEW
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ISSUE 40 I DECEMBER 2017 I LSJ 3
26 INFOCUS Lynn Elsey talks flying cars, driverless vehicles and other new technologies with Uber’s Asia Pacific legal eagle Katrina Johnson 28 HOTTOPIC Kate Allman explains the thinking behind the Law Society’s new website, The Boiling Frog 32 COVERSTORY As delays increase and a Federal Government inquiry begins, Jane Southward investigates the troubled state of family law
A M interEllison paralegal tells why he’s spending 13 months training to traverse the Brooks Range in Alaska’s Arctic Circle on cross-country skis 54 WELLBEING Thinking ahead to 2018? Dive into our snapshot of the world of resolutions 59 PSYCHE Psychologist Paul Phillips tackles the tricky issue of assessing a client’s sanity
Dom Rolfe meets the team from RACs and finds they are a passionate bunch 40 PROFILE Solicitor Greg Duffy tells how he combines work helping authors protect their rights with producing feature films 50 ADAY INTHELIFE Meet a young lawyer building a practice in Sydney’s Vietnamese community
ISSUE 40 I DECEMBER 2017 I LSJ 3
68 ADVOCACY: The latest developments in law reform
6 FROMTHEEDITOR 8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 23 EXPERTWITLESS 24 OUTANDABOUT All the fun from the 1920s-themed annual members dinner 23 THE LSJ QUIZ 44 LAW AND JUSTICE AWARDS 46 CAREER101
47 LIBRARYADDITIONS 48 DOINGBUSINESS
70 CONSTITUTIONAL: HCA’s dual citizenship verdict
Dressed to impress, plus three experts on how to be a better public speaker
74 CONTRACT: First B2B unfair contract terms case
76 COMPETITION: Key changes from the Harper Review
79 RISK: Practical guidance onmanaging cyber risk
Intensive training at F45
80 EMPLOYMENT: Navigating work & the silly season
Ute Junker’s guide to Santiago in Chile and a tempting trip to Easter Island
82 PRIVACY: Data retention laws – the broader context
84 COSTS: Preliminary discovery applications & costs
86 CRIMINAL: Section 32 Mental Health Act changes
Book reviews and our movie giveaway 66 NON-BILLABLES Cricketer Jon Whealing 106 AVIDFORSCANDAL
88 CRIMINAL: Forensic procedure orders appeal rights
90 PUBLICHEALTH: Recent developments in HIV law
Police Prosecutor Skye Stromquist
92 CASENOTES: HCA, FCA, Criminal, Family & Wills
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ISSUE 40 I DECEMBER 2017 I LSJ 3
A WORD FROM THE EDITOR
Welcome to the nal edition of LSJ for the year. And what a year it has been.
As we do every year, we’ve worked hard to research, write, edit, commission and curate a vast array of content to keep you informed, educated, enlightened and, hopefully, a little bit entertained. It’s a labour of love, and we genuinely appreciate having such a diverse and engaged readership. Next year holds even more promise as we launch a new Law Society website in April, followed by a brand new, standalone LSJ website. For the rst time, our content will be available on a state-of-the art digital platform as well as in print. It’s an exciting new era. is year has been a challenging one in Australia. e past few months have been especially di cult, with the marriage equality postal survey throwing up divisons and hostility, novel and hurtful to many. e state of global a airs is creating an atmosphere of precarious stability. ese are uncertain times. As we slide into holiday season and the New Year, I, for one, am celebrating the Yes vote and doing my very best to be grateful for all that I have – a signi cant part of which is the joy of working on LSJ with kind and talented colleagues. I hope you are as lucky as I am. Wishing you all the best for the holiday season and see you in February!
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen
Photographer Jason McCormack Publications Coordinator 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 © 2017 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
JANE SOUTHWARD Cover story p30 Our Associate Editor reports on Australia’s family law system and the reasons many believe it is in tatters due to record delays. While the Federal Government reviews the 40-year Family Law Act , find out the solutions lawyers are suggesting.
DOMINIC ROLFE Human rights p36 While refugees dominate the news, Dom meets the team at the Refugee Advice and Casework Service and discovers the team is dedicated and driven despite ever-changing migration law and mountains of paperwork.
FIONA CRAIG Career p44 December can be a
JACK DE FLAMINGH Employment p80 Jack is a partner at Corrs Chambers Westgarth. With the silly season approaching, he provides some light-hearted tips to help employers and employees get through the holiday period unscathed.
challenging month as work pressures collide with social engagements. Fiona, the LSJ Career Coach, o ers tips on how to turn end-of-year events into networking opportunities to boost your career in 2018.
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Cover image: Andy Raubinger
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 do not accept unsolicited articles.
6 LSJ I ISSUE 40 I DECEMBER 2017
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ISSUE 40 I DECEMBER 2017 I LSJ 7
s the year draws to a close it is timely to reflect on the Law Society’s key achievements in 2017. At the beginning of the year, I indicated that my focus as President would be on positive change in the law for the benefit of the whole community, in line with our motto Omnium Jura Defendimus – defending the rights of all. I named three key themes: reducing the number of Indigenous people in detention; reinvigorating discussion about the rule of law, fundamental rights and civil liberties; and forging better solutions for people seeking asylum in Australia. To that end, the Society has held a number of very successful events. Most recently, we held a landmark one-day symposium on the vexed issue of how the law should deal with asylum seekers in Australia. We also held a number of Thought Leadership forums. The first was “Bending the Rule of Law”, which explored the challenge of maintaining the rule of law and traditional freedoms in an era of heightened public security. “Human Rights in Unchartered Territory” armed members with innovative ways
human rights jurisprudence can be practised in the absence of a charter of rights. “Mind the Gap: Advancing Indigenous Justice” examined ways to reduce Indigenous incarceration and the proven advantages of underused alternatives including justice reinvestment, therapeutic justice and Koori Courts. Indigenous justice remains our strong priority and for this reason youth-focused Indigenous organisation Bara Barang Corporation Ltd was chosen as this year’s Presidential Charity. Two unique initiatives this year, our Just Music and Just Art competitions, celebrated the common humanity and creativity of our profession, contributing to wellbeing in our profession, while raising much-needed funds for Bara Barang. We also launched The Boiling Frog, the Society’s new online platform specifically aimed at engaging young Australians on issues pertaining to the rule of law, rights and civil freedoms. The year threw up some unexpected issues. The national postal survey saw a majority of Australians and all States and Territories vote for laws to enable same-sex couples to marry, in line with the Society’s policy on this issue since 2012, reaffirmed by a majority of the Council earlier in the year. It is gratifying to note that the number of signatories to our Charter for the Advancement of Women in the Profession increased to 147. Our new, hugely successful equitable briefing networking events also are helping to bridge closer alliances between solicitors and women at the Bar. We have continued our work on CTP reform and our advocacy for better funding for Legal Aid, community legal services and proper resourcing for our courts. We end the year with the launch of a major initiative in partnership with the University of NSW, following our landmark Future of Law and Innovation in the Profession (FLIP) report, an initiative of 2016 President Gary Ulman. This venture will help the profession rise to challenges and opportunities posed by disruption and innovation in the digital age. I eagerly anticipate the opportunities of a new year for the Law Society under the leadershp of President-elect Doug Humphreys and thank all the Society’s expert volunteers on the Council, committees and regional societies, as well as our staff, for their outstanding work in developing globally acclaimed policy, enabling us to fulfil our regulatory responsibilities, and looking after our profession in 2017. I also thank our CEO, Michael Tidball, for his wisdom and steady hand throughout the year.
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ISSUE 40 I DECEMBER 2017 I LSJ 9
Mailbag LETTERS TO THE EDITOR
MemberOrganisation MagazineoftheYear 2017WINNER
ISSUE39 NOVEMBER 2017
Dual-citizenship dramas The recent political drama brings into focus the fact that no man (or woman) can serve two masters. I say this as an immigrant who may well be a dual citizen. But, if it were up to me, I immediately would require all dual citizens to make a choice. The mindset that prevails when someone describes themselves as a British- Australian or a Lebanese- Australian or an Italian- Australian is that they identify as other than Australian and their loyalty is, at best, divided. I was born in South Africa to a mother with dual South African/British citizenship and a father with British citizenship. I was not registered with the British embassy within the required timeframe after birth and therefore had only South African citizenship. At the age of 12, my family immigrated to Australia. Having lived here for two years, we became eligible for Australian citizenship and both my parents immediately applied. The law in South Africa at the time was that the act of applying for another nation’s citizenship, regardless of the outcome of that application, was considered treason and resulted in the automatic cancellation of your South African citizenship. However, because I was under the age of 16, I was not required to make an application or swear an oath or even attend the ceremony. I am simply listed on my mother’s Australian citizenship certificate.
Christians” not once, but twice, and then go on to take out of context one of the many exhortations of Christ in the Sermon on the Mount (Matt 7, inter alia ), was awful to say the least. However, since Mr Cahill seems comfortable in referring to the scriptures, one can only assume he must have forgotten that passage where Christ specifically reaffirmed the definition of marriage (Matt 19) spanning back to Genesis 2, some 14 centuries earlier, as between a man and a woman, as created (yes, I said it: “created”). To do unto others as one would have others do unto them is not a carte blanche commandment to agree with anything and everything proposed by some; no, not even in 2017. Christ was not a hippy liberal who preached “anything goes”, and to so unjustly and rudely label people as “these so-called Christians” reeks of the same hatred and self-righteousness some, like Mr Cahill, complain of to no end. Enough with the Christian bashing already. Mark I Youssef Taylor & Scott Lawyers Proud to be the odd one out The October 2017 edition of LSJ published two articles in support of Australia adopting a bill of rights (BOR). The joint article by Williams and Reynolds has an emotive catchphrase: “Australia’s troubling exceptionalism on human rights”. It commences with a statement that we are the
I do not describe myself as South African or as a South African-Australian. In my mind, I am Australian. I have, after all, lived here more than twice as long as I lived in South Africa. If the topic comes up, I say I was born in South Africa. If I am pushed to identify my cultural or ethnic heritage I would say I am of Irish Catholic descent, which is curious in itself as there is plenty of English, Scottish and Germanic ancestry present as well and I have never been to Ireland. (I am aware that not all migrants have the luxury of choosing whether to “out” myself as it is not writ large on my face or in my voice.) In my view, if our elected representatives ought not owe any allegiance to a foreign power then neither should the people that voted for them. If you wish to be an Australian citizen, then be an Australian – and only an Australian. Sarah Perkins, Last and Maxwell, Jindabyne letter, ‘Dark Day’ ( LSJ , Nov 2017), was one of the most disparaging pieces I’ve read in Mailbag. I’ll leave the misnomer of marriage “equality” to others to comment on such as Ms Seidler in her commendable letter appearing just underneath Mr Cahill’s in the same edition, but it is hard to do the same concerning the comments made about Christianity. To refer to those who oppose same-sex marriage as “these so-called Christian bashing Solicitor Justin Cahill’s
THEJURY’SSTILL OUTONJUSTICE ASTRIALSGROW INLENGTHANDCOMPLEXITY, IS ITTIMETOOVERHAULTHEJURYSYSTEM?
PAYINGAHIGHPRICE WHYTHENEWWHISTLEBLOWER INQUIRY REPORTMAKESFORHARROWINGREADING
REFLECTIONSONALIFETIMEINLAW THEWISDOMOFSIRANTHONYMASON LAWANDTHEINTERNETOFTHINGS AGLIMPSE INSIDE ITSCOMPLEXITIES THEHIGHSANDLOWSOFEMOTION WHYACKNOWLEDGINGTHEM ISKEY NEWINSOLVENTTRADINGDEFENCE IS ITSTRIKINGABETTERBALANCE?
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. Please note: we may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish. E: email@example.com
CONGRATULATIONS! Sarah Perkins has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 40 I DECEMBER 2017
LETTERS TO THE EDITOR
In 2011 I was diagnosed with an incurable form of leukaemia called chronic lymphocytic leukaemia (CLL) and given five years to live. By October 2015 I was declared terminally ill. However, thanks to a discovery made at the Walter and Eliza Hall Institute by Professor David Vaux, there is a new drug for this insidious disease. I was able to get onto an early trial of the drug and this saved my life. If it weren’t for the research done at the Walter and Eliza Hall Institute, supported by donations and bequests from committed donors, my children would not have a mother today. Without the Institute, I really believe my children would not have their mother today.
only democratic country without a BOR. So what? It is 116 years since Federation and there has obviously been no public outcry to supplement the common law. Internationally, we have not become a pariah state. We are currently inundated by 170,000 immigrants annually. There are hordes waiting to get on boats to invade our country. Our supposed exceptionalism does not seem to have impeded those seeking the good life. Messrs Williams and Reynolds seek to find examples of human rights issues that may trigger the need for a BOR. They trot out the old chestnut of our bi-partisan border protection policy. This policy is the envy of many abroad. Ask a German who is su ering the consequences of Merkel’s folly, and a pro-Brexit Brit who lauds our stance. Messrs Williams and Reynolds troll around trying to introduce instances of human rights violations to support their call for a BOR. These are thin on the ground and hardly compelling. The article by Anthony Levin takes a di erent tack to that taken by Williams and Reynolds. Apart from possible future violations of the rights of the disabled, Levin does not attempt to point to any specific cases in Australia that may trigger a public outcry for a BOR. Levin promotes academic
arguments as to why our anti-BOR culture should change. The article might provoke fevered discussion among the think tank set. The man on the Bondi bus will go on believing a BOR to be a quaint custom in lands far away. We should be proud to remain “exceptionalists”. Peter Poulton, Retired solicitor In search of utopia I read with amusement Mr Manning’s description of a society in which everyone has “the same opportunity to succeed … regardless of race, creed, colour or religion” (Inbox, October LSJ ), thinking it to be a parody. Where is this utopia? It’s clear that our boardrooms don’t reflect the composition of society at large. To use women as an example, although 50.7 per cent of Australians and 50.1 per cent of lawyers are female, The Australian Financial Review ’s July 2017 Law Partnership Survey reveals that just 25.2 per cent of law firm partners are women. These statistics lend themselves to one of two possible conclusions. First, that men are inherently superior to women, which has led to their domination of the upper echelons of this and other professions. Or second, that we as a society have devalued women for centuries, rewarding men with positions of power and high salaries for demonstrating traditionally masculine qualities and
- Deborah Sims, pictured below with Professor David Vaux.
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ISSUE 40 I DECEMBER 2017 I LSJ 11
Mailbag LETTERS TO THE EDITOR
this progressive step towards equality, because we do live in a patriarchy, and women continue to be oppressed, and your backlash is to be expected as a male who has benefited from the system. But it’s a sign we are progressing. Carly Stebbing, Founder and Managing Director, Resolution 123 Monkey claim is monkey business PETA (October LSJ p11-12) insist that it is “ethical” for a monkey to be treated the same as any human author – to be declared owner of copyright in the famous “selfie” and with PETA managing copyright funds to benefit the monkeys. PETA’s claim is fundamentally flawed in both law practice and theory. Copyright law specifies that a copyright creator “author” be a human (e.g. IceTV v Nine Network Australia Pty Ltd (2005) 254 ALR 386 ). have inherent worth to be respected, but animals do not have the full legal rights or responsibilities of humans e.g. if a monkey kills a person we do not make the monkey stand trial for murder or manslaughter in the way we would prosecute a human. Likewise, laws grant property rights only to humans and legal entities governed by humans – not animals. Polly Seidler, Darlinghurst No one is denying that “non-human” animals
cent. The appointment must still be merit based. Sorry, but what is so offensive about this? That some men might have to give up some briefs to make room for a minority of equally senior and experienced women barristers? I have experienced my own pay equity gap. As a junior lawyer, I was told I would have to take a pay cut to join a particular law firm. None the wiser, I agreed. Months on I learned a male peer was earning at least $10,000 more than me, he didn’t have to take a pay cut to join, and yet he was less experienced for the job. It was an awful incident. I was raised to believe I was an equal but here was plain evidence at the very outset of my career in law, I was not. I went to HR, told them I knew about the gap, called it for what it was – sex discrimination – and said I’d quit if it wasn’t immediately fixed. They did fix it. Sadly, years on, on the other side of maternity leave, while searching for a new flexible job, I was on the receiving end of discrimination again. I was consistently denied opportunities for senior roles for which I was more than qualified and experienced. And then, recently, after founding my own employment law disruptor, I had my own #metoo moment when a male client sent me unwelcome and sexually explicit photo messages. So, Mr Manning, I am grateful to the Law Council for taking
Briefing Policy “sexist” and “offensive”. He said, “I suggest to my female colleagues that more work, less complaining will achieve far more than blaming the mythical patriarchy.” I was gob-smacked. Do we not as a fact live in a society under a government largely designed by men in which men hold the majority of power? That is a patriarchy. As to the oppression of women, we still live in a society in which domestic violence against women is considered endemic, where as many as one in five women are victims of sexual violence, where “there were more men named Peter than women at the top of ASX 200 companies and … in every sector, the basic rule is that the higher up you go the fewer women you see.” Thank goodness for Elizabeth Broderick’s article “Tough Work at the Coalface of Change” that was published in the same journal (and from which I have borrowed the previous quote), or readers could have been forgiven for thinking they had been living in an alternate universe to Mr Manning. In terms of the policy Mr Manning finds so offensive, it is optional, not mandated, and the goal is that female barristers with “relevant seniority and expertise” be briefed in 30 per cent of matters and be paid 30 per cent of all brief fees paid by 2020. In three years, the goal is to get to 30 per cent, not 50, not a majority, 30 per
behaviours. I favour the latter conclusion. This is gradually changing, not with time alone, but via affirmative action and a recognition that gender equality doesn’t mean the begrudging admission of women into the club, provided they play by the existing rules. It means embracing diversity and changing workplace culture, including by promoting flexible hours and the novel idea that men and women can equally share in both domestic duties and paid work. It shows a puzzling lack of self-awareness to place inordinate weight on one’s own personal genius and efforts, and none on the pure chance of being born where, when, and who you were, which places you at an inarguable advantage to most people in the world. I keenly await the day when my “hard work, long hours and sacrifice” will mean that my high-pitched voice will not be heard as an invitation to be talked over, or when my gender doesn’t lead others to assume I’m a secretary. Bianca Barry Debunking the “myth of patriarchy” Yesterday I had the misfortune of starting my day by reading “The myth of patriarchy” (Inbox, October LSJ ), a published letter to the Law Society in which Brendan Manning called the introduction of the Law Council’s Gender Equitable
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ON THE SOCIALS
No abuse behind incarceration rates I fail to see the connection between Indigenous incarnation rates and human rights abuse. The only way you get put in jail in Australia is to commit a serious crime or repeatedly commit crimes by refusing to obey the law. The government does not use the criminal justice system to deny human rights to Indigenous people as do many other countries. I would have thought that literacy rates, poor housing, lack of provision of health care and services and education may warrant the allegation of human rights abuse. Perhaps the politically correct President of the Law Society of NSW should stop and think before playing identity politics by conflating crime statistics with human rights abuse. I have worked in areas where Indigenous people appear in courts frequently. I wonder if the President of our Law Society is speaking from experience or saying what she has been told or read. We are lawyers, not politicians. We should rely on facts and critical thinking to examine issues, not our philosophical or political beliefs. There are real issues that severely impact Indigenous people in Australia. They should be squarely addressed. Brendan Manning,
“Here are my tips: 1. Sell your soul to the highest bidder. You’ll have to anyway so you might as well reap some reward. 2. The more boring the field, the higher the pay. 3. If you’re a woman, save every cent you earn and invest as you’ll be unemployable after 50. Or go into politics. Still
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ISSUE 40 I DECEMBER 2017 I LSJ 13
Anewhub for technology and innovation
Rapid technological change across the legal industry is a key driver behind a new centre for innovation and technology at UNSW. The new hub, which is based on partnerships with the Law Society of NSW and Allens, is designed to explore and develop appropriate responses to legal challenges arising from new technology. “ Legal systems all over the world are already working hard to keep pace with the rapid evolution of technological changes happening in our society,” said Associate Professor Lyria Bennett Moses, a member of the UNSW faculty of law, in a statement. Bennett Moses will lead the Allens Hub for Technology, Law and Innovation, with a team of 21 academics to undertake research to better equip legal practitioners and law students to tackle the changes and challenges presented by technology. They will work closely with staff from Allens to better understand how disruptions, including data-driven decision-making, cyber threats and new kinds of biological, artificial and legal ‘persons’, will impact law and society. Anna Collyer, Partner and Head of Innovation at Allens, noted that technology is causing a significant level of disruption in the economy and that, at times, the law wasn’t keeping up to speed on these changes. “The response of the law and lawyers to innovation will play a huge role in defining the benefits Australian businesses derive from new technologies and ways of working,” she said in a statement.
The Law Society of NSW will work with the university to generate another stream of research, related to its Future of Law and Innovation in the Profession (FLIP) report, which highlighted ongoing changes within the profession and recommended ways to embrace them. “Technology presents both challenges and opportunities for the legal profession. Consideration needs to be given to how the legal profession and legal system will evolve while preserving core social and legal values, right and protections,” said Professor Michael Legg, UNSW Law professor and member of the Law Society Future Committee, in a statement. Legg will lead the hub’s FLIP research segment, exploring areas and issues including artificial intelligence and the practice of law, using technology to access justice and alternative fee arrangements. The Law Society has made a five-year, $250,000 per annum commitment towards the research. Michael Tidball, the Law Society CEO, said technology was creating a need for greater efficiency in the practice of law and legal services, along with making access to justice easier, cheaper and more effective. According to George Williams, Dean of UNSW Law, the new hub will provide enormous opportunities and benefits for students, the university and the legal industry. “This is incredibly important and necessary work that will have an impact upon some of the most important debates facing the community and the legal profession,” he said in a statement.
“Technology presents both challenges and opportunties for the legal profession.”
PROFESSOR MICHAEL LEGG
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Cassandra Banks, from the Clarence River and Co s Harbour Regional Law Society, was recognised for her active role in the community by being named NSW Young Lawyer of the Year at the 2017 NSW Young Lawyers Annual Assembly Gala Dinner in November. Banks, pictured above in red with NSW Young Lawyers President Emily Ryan, was lauded for increasing young lawyer engagement, including networking events and implementing a regional mentoring program. The Practitioner’s Guide to Briefing Experts also received a Patron Award for Best Professional Project. The guide, which is free as a valuable resource to all practitioners, was created as a joint initiative between NSW Young Lawyers and Unisearch Expert Opinion Services. The Refugee Assistance Project, which aims to assist some of the NSW refugees seeking asylum who don’t have legal representation, was awarded Best Community Project. The Patron Awards are designed to recognise exceptional contributions to the legal profession and the community by NSW Young Lawyers members and committees.
BARCHOIR CHRISTMAS CONCERT
Justice Diana Bryant Former Chief Justice of the Family Court
Kick o the holiday season with an hour of music at the Bar Choir’s Christmas Concert on Thursday, 7 December. The concert at St James Church will raise spirits and funds. All proceeds will go to the Tristan Jepson Memorial Foundation, which helps promote mental wellbeing in the legal profession. Find out more at tjmf.org.au
There are no winners in family law proceedings.
From an interview with Damien Carrick, T he Law Report , 18 Sept 2017
ISSUE 40 I DECEMBER 2017 I LSJ 15
HOWTOLOSE TWOCLIENTSWITHONE PHONE CALL
LINDENBARNES IN CONVERSATIONWITH THE LAW SOCIETY’S ETHICS COMMITTEE
The Ethics Committee recently had a discussion about how to achieve this rather undesirable outcome. They contemplated the following scenario, from various practice type perspectives: One of our administration staff takes a call. The caller says they have received a statement of claim and they are planning on leaving the country for Majorca on the next available flight. They want some legal advice before they jump on the plane. After making an appointment for this evening, the solicitor checks the name of the caller. It turns out that the practice is already acting for the claimant. Consulting their ethical obligations, the solicitor believes they now have information which is material to the claimant but which has been provided to the practice in confidence. The duties of confidentiality and disclosure are therefore in conflict and the practice cannot act for the caller and also cannot continue to act for the claimant. How could this have been avoided (apart from the caller reading the name of the law firm on the backsheet of the statement of claim)? The committee says the most important safeguard was an adequate process in place in relation to receipt of calls to ensure that the whole story was not swallowed in the first 30 seconds. Having a process in place which allows the systematic receipt of information before
opening a file helps to ensure that only general details are captured first, before anything more detailed is divulged. Features of such a process could include: 1 Ensuring that only professional staff are involved in such calls; 2 Screening by obtaining the caller’s name, the other side’s name and a brief description of the nature of the matter (without details); 3 Conflict register check to ascertain if the enquiry can be taken further; 4 A solicitor only then be allocated to talk to the caller One point of common concern was the use of such phone calls to “knock out” a law firm from acting. The committee noted how improper such a tactic was. The pro bono perspective Is it more difficult in the pro bono environment to stop potential clients from telling their whole story? It could be, if the clients are perhaps more vulnerable and also where the legal services are provided as part of a suite of assistance services which encourage clients to discuss their whole situation. The most important point, however, is that it does’t matter if you are charging, how much you are charging, or for whom you are acting, all the rules must be followed. The smaller law firm It may be easier to avoid this situation in small firms because of potentially knowing the names of most of the clients. This is a common experience
for those practising in suburban and regional areas. The downside for these solicitors is that you are more likely to be cornered by a potential client in the supermarket aisle or at Saturday morning sport. It is rather difficult to do a proper conflict register check while juggling the milk or a football. The bigger law firm While it is definitely not as easy to personally know every client – impossible in fact – in these firms, they tend to have greater resources available to be put into conflict checking processes. For instance, first approaches may be put through a quarantined area where any information is kept securely away from solicitors who might otherwise become conflicted out of a matter if they were told it. However, the increased globalisation of such firms increases risks. There are offices on the other side of the globe, and those offices may also be operating with different ethical requirements. As the Ethics Committee discussed, there is no bullet-proof conflict checking process. This scenario can happen, despite the best processes. What is certain, however, is that not having the processes is a far riskier option. It could make your client numbers very lean indeed. Conflicts are a day to day risk for all firms and there is no “one size fits all” approach for avoiding their consequences. Practitioners are encouraged to formulate a process that suits their particular circumstances.
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JAMES SKELTON COMMERCIAL LAWYER, SWAAB ATTORNEYS, SYDNEY
six minutes with
James Skelton, 29, is a commercial lawyer at Swaab Attorneys in Sydney and works in intellectual property rights, business advice and brand protection strategies. Skelton was named the 2017 Australian Young Lawyer of the Year at the National Golden Gavel competition. The annual award by the Law Council of Australia’s Young Lawyers’ Committee recognises excellence in young lawyers and young lawyer organisations. For Skelton, this included his work with NSW Young Lawyers since 2013 and his work on the Law Society’s Diversity and Inclusion Committee. He tells JANE SOUTHWARD how he almost didn’t become a lawyer.
How did you end up as a lawyer? After school at Newington College, I enrolled at UNSW to study international studies. I never wanted to be a lawyer. My dad, Colin, is a lawyer at Hardings Lawyers and he said, ‘Don’t be a lawyer, there are too many lawyers’. I had planned to be a diplomat. You worked at Hugo Boss in fashion retail for seven years. Did this lead you into the law? I did an exchange in Germany as part of my international studies course. When I enrolled to do a Juris Doctor, I found intellectual property law interesting. My teacher, Alexandra George, had a passion for IP and I saw what I was studying in the classroom reflected in my job at Hugo Boss. I thought working in law might be a good way to combine my skills. Dad was secretly proud! How did you land your first legal job? I finished my law degree and was still unsure what I wanted to do. I worked for six months in the Federal Court with the NSW and ACT District and Deputy District Registrars. It was terrific experience in bankruptcy and corporation work as well as the Copyright Tribunal. Then I was lucky to start a graduate role at Swaab straight after the court role.
Why did you join NSWYoung Lawyers? A partner suggested I join the Communications, Entertainment and Technology Law Committee to meet colleagues in the IP and technology area. Everyone I met was so friendly I put my hand up for the NSW Young Lawyers’ Wellbeing and Diversity Working Group and then as the NSW Young Lawyers representative on the Law Society’s Diversity and Inclusion Committee. In Young Lawyers, we have been doing more activities such as walks and are starting a wellbeing book club. We are trying to facilitate events that young lawyers can network and have fun in away from alcohol and speed networking. As an associate, what hours are you working? 60-hour weeks? I am really lucky because our managing partner, Mary Digiglio, is a big advocate for wellbeing. She sits on the board of the Tristan Jepson Memorial Foundation. The firm has a fantastic culture and a family feel. I am out the door by 6 or 7pm and very rarely do I have to work on weekends because of that conscious commitment to wellbeing and balance.
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DAMARARYDER Joined as Senior Associate Pigdon Norgate Family Lawyers
CAITLINTORR Appointed to Associate Blanchfield Nicholls Partners Family Law
SARAHHENRY Promoted to Partner, Health Group Makinson d’Apice Lawyers
LESLEYBUSH Promoted to Partner, Health Group Makinson d’Apice Lawyers
SOFIAHAIKALIS Promoted to Special Counsel, Commercial Macpherson Kelley’s, NSW
CRAIGCOCKBURN Joined as a Lawyer Turner Freeman Lawyers TERESACLEARY Appointed to General Counsel and Company Secretary Australian Institute of Company Directors (AICD)
ANTHONY INGEGNERI Appointed to Assistant Company Secretary Australian Institute of Company Directors (AICD)
MAXBONNELL Appointed to Partner, International Arbitration Practice White & Case, Sydney
STEPHANIELEE Now Principal in sole practice Stephanie Lee Family Lawyers
TONYWOODS Joined as a Partner, Workplace Relations & Safety Lander & Rogers, Sydney
MEGANPITT Appointed to CEO
Legal Services Council and Commissioner for Uniform Legal Services Regulation
STEPHEN JAUNCEY Joined as a Consultant, Workplace
LALAPORDELI Promoted to Associate JB & Associates
ALI DIBBENHALL Appointed to Head of Legal – Pacific LexisNexis
Relations & Safety Lander & Rogers, Sydney
RAJIVBALDEO Promoted to Associate Nyman Gibson Miralis
FIRASHAMMOUDI Now in sole practice, Founder and Principal Circle Bridge Legal
JAMESROLAND Appointed as a Partner, Banking & Finance Gadens, Sydney
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
18 LSJ I ISSUE 40 I DECEMBER 2017
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CYBERFRAUD Newcyber risk insurance BY JANE SOUTHWARD In conjunction with the Law Society of NSW, Lawcover and its professional advisers have been examining ways to raise awareness about cyber risks in legal practice and to assist in mitigating this evolving business risk among its nearly 6,500 law practices. From 1 January 2018, Lawcover will provide foundational cyber risk insurance via a group insurance policy it has purchased for insured law practices. The cyber risk policy will be e ective for 18 months from 1 January 2018 to 30 June 2019. The Lawcover Board will consider before 30 June each year thereafter whether to extend the group cyber policy for an additional 12 months. Lawcover warns that the risk of financial loss, disruption or damage to the reputation of a law practice due to computer hacking, business interruption and unintended disclosure or destruction of confidential information is a serious threat and will become a reality for many legal practices. The cyber risk insurance policy will provide foundational cyber risk cover to Lawcover insured law practices with no forms to complete and no additional cost. This cyber risk policy provides crisis assistance and protection from losses to a limit of $50,000. The policy has been tailored for law practices and sits adjacent to the Lawcover professional indemnity insurance (PII) policy. It provides cover for first-party losses, as well as specified third-party losses that are not otherwise covered by the PII policy. The cyber risk policy is a foundation from which each law practice can assess its own risk (either independently, or through an insurance broker or professional adviser). Each practice can decide whether the coverage provided is su cient for its needs, or consider purchasing an increase in the limit and breadth of cover by approaching the issuing insurer, subject to underwriting review. This initiative recognises the threat cyber risk poses to the legal profession. Recent experience with malware such as WannaCry, Petya and NotPetya has shown that solicitors don’t need to be a target to become a victim of cyber crime. Visit lawcover.com.au for more information, including details of the policy.
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Avision for the future BY KATE ALLMAN
“Disruption” is a buzzword lawyers have heard a lot in 2017. Technology, automation, robot lawyers and the gig economy have been touted as things that will transform legal practice in ways solicitors can’t even grasp. Rather than be terrified of a Terminator -style takeover by machines, the 2018 President of NSW Young Lawyers, David Turner, has said he wants to put young lawyers in a position to take advantage of this disruption. “The theme we’re focusing on for next year is ‘Preparing for the future’,” said Turner, who stepped into the role of President in November, after the 2017 NSW Young Lawyers Annual Assembly. The other office bearers are Vice President Jennifer Windsor, Secretary Lotte Callanan, Treasurer Jem Punthakey and Immediate Past President Emily Ryan. Turner joined the Animal Law Committee as a new lawyer at Norton Rose Fulbright in 2013. He was keen to find out about the tenancy laws that could affect whether he could keep his lop-eared rabbit, Lady Anne, in a Sydney rental apartment. Since then, Turner has worked on many committees and has overseen law reform submissions on everything from greyhound racing to free-range egg labelling and white- collar crime. He was called to the Bar in 2016 at 27 and sees age as no barrier to young lawyers making their mark on the future of the profession. “As a member of NSW Young Lawyers, you can really have an impact on law reform early in your career,” said Turner. “There are also great networking and social opportunities to meet lawyers in your peer group, which you don’t always get at law firm- organised events.” NSW Young Lawyers membership is open to all young legal practitioners, graduates and law students across NSW who are under 36 or in their first five years of practice. Turner has big plans to put the organisation’s
15,000 members at the forefront of legal innovation. “It’s all very well to have office bearers come up with ideas and implement them from the top down,” he continued. “But I think it’s more engaging and inclusive if we invite ideas to come from our members and for young lawyers in all areas of the law to have an impact on our decisions.” Turner said he planned to explore an “incubator” concept for young lawyers who wanted to become sole practitioners earlier in their careers. In Australia, lawyers who want to become sole practitioners are required to first practise in a supervised firm for a minimum of two years but Turner said most waited until they had more years of experience under their belts before going out on their own. “I went to the Bar a lot earlier than most young lawyers and I think the perception of age and the ‘right time’ to do that sort of thing is changing,” said Turner. “The proliferation of legal freelancing and the gig economy makes sole practice an increasingly attractive option.” So, aside from future-proofing the profession, what’s the young President looking forward to most in 2018? “NSW Young Lawyers has a number of flagship social and networking events, such as our NSW Golden Gavel and Charity Ball.” Turner said. “I’m looking forward to those highlights of our social calendar, but keeping with the ‘future’ theme, we might do some of those a little differently this year.” Turner promised that NSW Young Lawyers would continue to use many of its social events to raise money for charity – the Arts Law Centre having been voted as the organisation’s 2018 charity of choice. He also was pleased to announce that former Australian Solicitor- General Justice Fabian Gleeson SC would be the NSW Young Lawyers patron in 2018. Visit younglawyers.com.au for more information.
“It’s more engaging and inclusive if we invite ideas to come from our members and for young lawyers in
all areas of the law to have an impact on our decisions.” DAVID TURNER
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