LSJ - February 2015
TOP LEGAL MINDS PRESENT THEIR CASES FOR LAWS THAT NEED REVIEW 10LAWSTHAT NEEDTOCHANGE
THEPOWEROFETHICS LAW SOCIETY PRESIDENT JOHN EADES ONWHAT UNITES THE PROFESSION
THE SPORTSMAN’S LAWYER THE LIFE OF WWI SOLDIER LESLIE SEABORN THE ART OF ARBITRATION THE REGIME: FIVE YEARS ON DEATHANDDESTRUCTION A DAY IN THE LIFE OF THE STATE CORONER OUTSIDE THE LINES THE DANGERS OF PERFECTIONISM
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1 LSJ I JUNE 2014 Things to know before you Can: This information has been prepared by Commonwealth Private Limited ABN 30 125 238 039, AFSL 314018, a wholly owned but non-guaranteed subsidiary of The Commonwealth Bank of Australia ABN 48 123 123 124, AFSL/Australian Credit Licence 234945 (“Commonwealth Bank”). The services described are provided by teams consisting of Private Bankers who are representatives of Commonwealth Bank and Private Wealth Managers who are representatives of Commonwealth Private Limited.
W elcome back. I would like to take this opportunity to introduce myself as your 2015 president and provide a brief outline of my focus for the coming year. I have had a life long association with regional NSW, which began in my birthplace, Albury. After completing articles at city rm Clayton Utz and being admitted in March 1969, I soon moved to Gri th and later became partner at Noyce, Salmon and D’Aquino. I have been there ever since and have had the honour of serving as president of the Riverina Regional Law Society for 17 years. Let us turn to the year ahead. e profession is diverse. However, the problems faced in the city, country and even by the large law rms are governed by the same ethical rules and obligations. Importantly, how we conduct ourselves through the prism of professional ethics does much to colour public perception. With this in mind, I shall be focusing on ethics as a key part of the Society’s 2015 activities. Continuity is important. My intention is to support the current program promoted by previous presidents to work on the introduction of the Legal Profession Uniform Law; consult with the Commonwealth Government on its response to the Productivity Commission Inquiry into Access to Justice Arrangements; improve access to justice; and continue to advance the role of women in the law during my tenure. Promotion of our State Election Policy Platform is also high on my agenda, including a community forum on changes to workers’ compensation to be held at Penrith Bowling and Recreation Club on 17 February (See lawsociety.com.au/ForSolictors/advocacy/ policyandrepresentation/WorkersCompensation/index.htm). In 2015, I will be visiting all 29 country and suburban law societies as well as continuing the usual program of meetings with the city- based rms. is will give me the opportunity to hear from the whole profession and feed this information back into the work of the Society. Finally, each year the president is asked to nominate a charity that will bene t from the nancial and in-kind support of the Society and the profession. I have chosen Motor Neurone Disease (MND) Australia, a charity that promotes research to support those with MND. Further information can be found online at: mndaust.asn.au/Get-informed/What-is-MND.aspx
JUNE 2014 I LSJ 1 FEBRUARY 5 I 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer
Welcome back to the o ce. Hopefully most of you have enjoyed a substantial break over Christmas and the New Year. As we launch into 2015, it is a time for re ection. It feels like we are living in fraught and uncertain times with the memory of the Lindt Cafe siege still fresh in the minds of many in the legal community, especially the family, friends and colleagues of barrister Katrina Dawson. I would encourage all solicitors to consider making a donation to the Katrina Dawson Foundation (thekatrinadawsonfoundation.org). With former Governor-General e Hon. Dame Quentin Bryce as its founding member, the foundation will honour Katrina’s memory and focus on the education and advancement of women. With Katrina as a shining example of just what women in law can aspire to, I have no doubt the foundation will achieve great things. e need for re ection is one reason we decided to enlist some top legal minds to argue their cases for 10 laws that need to change in 2015. In our cover story (see page 24) the topics and opinions are as diverse as the writers themselves. Do you agree with them? We’d love to hear from you.
Michael Nguyen Photographer Jason McCormack Editorial enquiries email@example.com Business Development Manager Melissa Cossar Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
Nicholas Cowdery AM QC was NSW Director of Public Prosecutions from 1994-2011. In our cover story he argues why mandatory sentencing must go. 10 laws that need to change p24
Tony Cunneen is Student Studies
Rachel Setti is a psychologist specialising in leadership, business psychology and executive coaching. She writes a compelling piece about
Caroline Dobraszczyk is a barrister at Trust Chambers in Sydney. She gives an update on the status of the new Bail Act and what you need to know right now New bail law: Bail Amendment Act 2014 p76
Cover design: Andy Raubinger
Coordinator at St Pius X College in Chatswood. He has written extensively on the history of the
legal profession. The sportsmen’s battalion p40
TOPLEGALMINDSPRESENTTHEIR CASESFORLAWSTHATNEEDREVIEW 10LAWSTHAT NEEDTOCHANGE
The dangers of perfectionism p54
THEPOWEROFETHICS LAWSOCIETYPRESIDENTJOHNEADES ONWHATUNITESTHEPROFESSION
THESPORTSMAN’SLAWYER THELIFEOFWWISOLDIERLESLIESEABORN THEARTOFARBITRATION THEREGIME:FIVEYEARSON DEATHANDDESTRUCTION ADAY INTHELIFEOFTHESTATECORONER OUTSIDETHELINES THEDANGERSOFPERFECTIONISM
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 MARCH 2015
FOCUSED REGULAR EXERCISE IMPROVES CONCENTRATIONAND NEUROLOGICAL FUNCTION – IT’S ANO-BRAINER.
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20 HOT TOPIC
40 ASPORTINGLAWYER The life of NSW lawyer and WWI soldier Leslie Seaborn 54 PICTURE PERFECT Rachael Setti reveals the lurking dangers of
58 STRENGTHOFMIND Jane Southward talks to
Race Discrimination Commissioner Tim Soutphommasane looks back on 40 years of the RDA 24 COVER STORY Some of Australia’s top legal minds delve into 10 laws that need to change in 2015 36 THE ETHICSOF LEADERSHIP New Law Society president John Eades discusses ethics, professionalism and the challenges facing lawyers today
Matthew Johnstone about the power of building resilience 59 FITNESS Easy-to-execute exercise essentials for the new year 60 CITYGUIDE Your guide to spending 24 hours in Mumbai 64 YOUWISH Jane Southward gets back to nature on stunning and serene Lord Howe Island
perfectionism. Are you at risk? 56 THE LOWDOWN
What you need to know about prostate cancer – and how to avoid it
6 LSJ I FEBRUARY 2015
8 MAILBAG 10 BRIEFS
44 CAREERHUB 48 ADAY INTHE LIFE Jane Southward
68 LAWSOCIETY ADVOCACY 70 ANTI-TERRORISM (PART THREE) 72 ARBITRATIONREVIEW 75 MANAGED INVESTMENT SCHEMES 76 CRIMINAL LAW: NEW BAIL ACT
News and events from the legal world 12 PROFESSIONAL NOTICES 15 FROMTHE ARCHIVES 16 OUT ANDABOUT 17 CAREERMOVES Who moved where this month 18 GLOBAL FOCUS Legal news from around the world 22 PEARLS OF WISDOM Julian Burnside QC 38 LIBRARY ADDITIONS
meets NSW state coroner Michael Barnes
MANAGEMENT Online marketing trends to put you ahead of the pack in 2015 52 EXTRACURRICULAR
78 PROPERTY: E-CONVEYANCINGUPDATE 80 ADMISSIBILITY OF ELECTRONIC EVIDENCE 82 LEGAL RISK: POWEROF ATTORNEY 84 CRIMINAL LAW: CRIMINAL TRIAL BENCHBOOK 86 WILLS & ESTATES: FAMILY PROVISIONS 88 CONTRACTS: CONTRACTUAL CONSTRUCTION 90 INTERNATIONAL LAW 92 PROPERTY: SWIMMINGPOOL PROVISIONS 94 CASENOTES: HIGHAND FEDERAL COURTS 96 GENERAL PRACTICE: WILLS & ESTATES, FAMILY ANDCRIMINAL LAW
A lawyer’s journey from the office to making a living from healthy eating
The latest in wine, books and events
106 EXPERTWITLESS Legal news to make you giggle
New books at the Law Society Library
FEBRUARY 2015 I LSJ 7
LETTERS TO THE EDITOR
Careful what you wish for Context is everything and James Bowers’ assertion that CPD in England is being scrapped (LSJ, Letters, December 2014) is only part of the story. He omits to mention what is replacing it. The new system, while potentially more e ective, is also potentially more onerous. Scrapping the requirement of 16 hours CPD is part of a concerted drive by independent regulator, the Solicitor’s Regulatory Authority, to improve the competence of solicitors. The Law Society Gazette of 22 September 2014 reports that, in order to assist solicitors and firms to better focus their training e orts and resources, 2015 will see promulgation of a competence statement and supporting toolkit of ‘what a good solicitor looks like in practice’. This is not as benign as it sounds. In England, solicitors and firms are subject to “outcomes- based regulation” and can be investigated and disciplined if mandated “outcomes” are not achieved. Woe betide a solicitor or firm that fails to achieve outcomes such as client satisfaction, competence and compliance due to inadequate training. The regulatory regime makes it clear that solicitors and firms are expected to plan and execute appropriate training
Congratulations As a lawyer of 35 years’
beyond keeping up to date with substantive law. This approach is in line with global trends for CPD schemes to raise the bar on continuing professional education. If truth be told, many professionals and CPD providers envy the simplicity and flexibility of the “10 hours a year” CPD scheme for NSW solicitors. More onerous requirements of CPD schemes for other lawyers and professionals include more hours, longer sessions, training plans, competence assessments, and accreditation of courses or providers. That said, we should thank James Bowers for raising the issue of how to provide relevant, quality, cost-e ective continuing legal education. CPD providers, too, hate the last-minute rush and disengaged learners. However, where is the forum competence of solicitors can debate these issues? Given the current pressures facing the legal profession, continuing learning, upskilling, and retraining are not only the keys to success but, in many cases, the keys to survival. A debate about the future of CPD in NSW? Bring it on. Jan Christie/Ronwyn North Continuing Legal Education Association of Australasia in which ALL parties with a stake in the continuing
experience, I think the LSJ in its new format is better than it has ever been by a long shot. The layout is conducive to reading the articles. I also think the articles on health issues, travel, food etc have gone a long way to making the Journal much more interesting it its readership. Grae McKenzie In the mix Hugh Mackay has written a 300-page book called Art of Belonging in which he argues that belonging to a community is essential for human health. Lisa Coady ( Books , November LSJ ) dismissively writes one sentence positing that “... We don’t necessarily need an emotional connection with the community”. Who is right? Hugh Mackay is a very well credentialed social science commentator with decades of practical and research experience in his field. While I have not had the pleasure of reading his latest, his previous books have always been based on solid qualitative and quantitative research. Before entering the law profession, nearly 20 years working as a psychologist counsellor framed my belief that those people without a sense of belonging to another group of humans were invariably and without
INTERNATIONALLAW’SPOWER COUPLEONREFUGEES,CLIMATE CHANGEANDTERRORISM
SAYWHAT? WHYSOLICITORSAREFAILING TOCOMMUNICATEWELL TREECHANGE THEPERKSOFREGIONALPRACTICE ADIFFERENTAPPROACH INSIDECIRCLESENTENCING OLDAGEADAGE ADVANCECAREDIRECTIVES INVINOVERITAS THETRUTHABOUTALCOHOL
19/11/2014 6:21 pm
WRITE TO US: We would love to hear your views on the news! The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org Please note: we may not be able to publish all letters received.
CONGRATULATIONS! Jan Christie and Ronwyn North have won lunch for four.
8 LSJ I FEBRUARY 2015
exception more likely to be depressed, anxious and generally not as emotionally healthy as those that did. Anecdotal but overwhelming. Upon what ground does Ms Coady base her assertion? Kim Ibbott What is justice? In Marriage of Minds ( LSJ Dec 2014) Professor Ben Saul is quoted as saying, “I think that’s where my thirst for justice came from. It made me very, very aware of social di erences based on wealth and opportunity”. I am surprised that a professor of law should so confuse justice and social di erences. Justice is a comparatively narrow concept connected with the rule of law and fair hearings. Social di erences involve broad, complex political and economic issues on which a legal expert has nothing special to contribute. Much mischief flows from this confusion. Ken Harkness Bring back Sundays I thoroughly look forward to the publication of your wonderful journal each month. Once delivered, I tend to place it to one side ready to be enjoyed on a sunny Sunday afternoon. However, you can surely imagine my horror this month [ LSJ , November 2014] to see that snivelling little
Basten JA at ; (f) “Where a determination covers multiple court orders, the e ect is to consolidate various separate liabilities into one judgment debt. According to the principle of merger, those separate liabilities would cease to exist … there is no statutory basis that would require that outcome … Ms Dulhunty [the costs assessor] declined to take that step [of undertaking a separate determination for each costs order when asked to]: if she were wrong in that refusal, that constituted error of law”: Basten JA at ; (g) “There is a final reason why … a global certificate of costs with respect to the three proceedings was legally inappropriate … a precondition to the merger of di erent sets of liabilities in one judgment debt is that each debtor be liable under each order. No one would suggest that a person who was liable to the respondent for the costs of one proceeding only could be joined in a certificate relating to the liability of the other persons in the proceedings. Yet that is the consequence of the determination of costs payable … to the respondents in the global amount:” Basten JA at . Shooting the messenger does not make the problem for costs consultants/solicitors go away. C.J. Bevan
understandably, like the message he is bringing from an appellate court. The following excerpts from the Court of Appeal’s majority decision on the illegitimacy of global costs certificates, and of the process of undertaking enunciated by Basten JA, with Beazley P agreeing and Barrett JA dissenting, will hopefully serve to bear out the truth of the message I have brought from that court: (a) “A simpler course is to construe … section  as requiring a separate application for each order, as its language suggests”: Basten JA at ; (b) “A further factor favouring a certificate for each order may be found in s 367A which is in its terms assuming an application relating to a single order:”: Basten JA at ; (c) “In its terms, s 353 requires an application to be made with respect to a particular order of a court or tribunal. The costs assessment must respond to that order and be limited by the terms of the order”: Basten JA at ; (d) “A failure to comply with the terms of the order would be an error of law on the part of the assessor”: Basten JA at ; (e) “… s 364 … sets out the matters that the assessor must consider in assessing legal costs ‘payable as a result of an order made by a court ortribunal’:”: assessments of costs on a court-by-court basis,
gargoyle on its front cover, the same gargoyle who steadfastly attempted to rob me of my sunny Sunday afternoons through his draconian WorkChoices legislation. Whilst I did find your front cover revolting, I am nevertheless a firm believer in the freedom of the press. Hence, I do not advocate for the complete eradication of depictions of conservative spear carriers from all publications. That would be over the top. Rather, I simply ask that perhaps a warning letter be sent in advance so that the more open-minded among us may prepare ourselves. Yours in unity. Stephen Smith Reply to “Costs debate” I read with interest the letter to the editor by Ms Sharon Drew ( LSJ , December 2014), who I understand is a highly regarded costs consultant in Sydney. Ms Drew takes issue with my interpretation of what we agree to be the principal issue determined by the Court of Appeal in Wende v Horwath . Ms Drew, rightly concerned that the Court of Appeal has fundamentally rewritten the manner in which she must henceforth practise her profession of drawing up bills of costs and objections to bills of costs, is making the mistake of shooting the messenger because she does not, quite
FEBRUARY 2015 I LSJ 9
INNOVATIONPAYS FOR ‘GONG LAWYER
Wollongong intellectual property lawyer Tracy Sweeny has been named Innovation Lawyer of 2015. Sweeny, who launched Sweeny Legal in 2012, said she was surprised to receive the Corporate Intl Legal Award and had no idea who had nominated her.
Sweeny began her career as a librarian and studied law at the University of Sydney, University of NSW and the University of Technology (where she also taught for many years) while she was working as a librarian at Waverley Municipal Library. She moved back to Wollongong where she set up the law library at the University of Wollongong. Her legal practice covers trademarks, copyright and patents, including a range of work with plant breeders from the NSW southern highlands.
THE PARTNERS, STAFF AND CLIENTS OF CARNEYS LAWYERS GATHERED AT PASPALEY IN MARTIN PLACE ON 30 OCTOBER 2014 TO MARK HALF A CENTURY OF LEGAL PRACTICE . HIS HONOUR JUDGE MARK WILLIAMS SPOKE AT THE FUNCTION. FIRSTKOORI COURT INNSW NSW’s first Koori Court has opened, with the first case referred from Parramatta Children’s Court and heard in late January 2015. In the Koori Court, the Aboriginal Legal Service will represent the young person. Elders from the University of Western Sydney will work with the magistrate and young person before the court to develop a case management plan, which the young person will be obliged to carry out or risk appearing before a regular court. The Koori Court is a one-year pilot program supported by the NSW Attorney-General and the Children’s Court.
20YEARSONFROMBEIJING PLATFORM FOR ACTION
In March 2015, the Australian National Committee for UN Women joins the international community in celebrating the achievements of women on International Women’s Day (IWD) and commemorates progress made since the Beijing Platform for Action, adopted at the fourth World Conference on Women in 1995.
Twenty years since the defining road map for gender equality was adopted, many are still commitment to ensuring women’s empowerment is at the forefront of the post-2015 development agenda. On 6 March, the Australian National Committee for UN Women will host guest speakers Catherine Fox (pictured), journalist and LSJ contributor, and Ethel Falu Sigimanu, the Permanent Secretary of Ministry of Women, Youth, Children & Family Affairs, Solomon Islands Government, for a 7am breakfast at Australian Technology Park. Funds raised from the event will go towards various development schemes in the Pacific region. To purchase tickets online unwomen.org.au/civicrm/event/info
10 LSJ I FEBRUARY 2015
BARKERCOLLEGE BURNSCOMPETITION INMOCKTRIAL
NEWLYACCREDITED SPECIALISTSANNOUNCED Thirty-seven members of the Law Society of NSW were awarded their specialist accreditations in December 2014. Gaining accreditation is a significant achievement that offers practitioners a recognised means of differentiation and demonstrated expertise. You can read more about specialist accreditation on page 44. The newly accredited specialists are as follows: Dispute resolution: Christopher Kinsella, Minter Ellison Philip McNamara, McNamara & Associates Emma Salkavich, Birchall Legal Brett Williams, QBE Insurance (Australia) Limited Government and administrative law: James Gaynor, Department of Defence Michelle O’Brien, Police Integrity Commission Kate Robinson, Department of Planning & Environment Immigration law: Da Wei (David) Gu, Proactive Legal Pty Ltd Peter Papadopoulos, Ernst & Young Local government and planning: Sean Aaron Gadiel, Gadens Lawyers Sydney Pty Limited Joshua Palmer, Pikes & Verekers Lawyers Personal injury: John Abouchrouche, Leitch Hasson Dent Pty Limited William Allan, Ccc Law Pty Ltd Lauretta Bussoletti, Slater & Gordon Julia Byrnes, Hunt & Hunt Natasha Fiodoroff, Hunt & Hunt Jeffrey Gabriel, Workcover Independent Review Office James Govan, Acorn Lawyers Samantha Harvey, Slater & Gordon Robert Hopper, Malleys Lawyers Naushad Husaini, Thomas Booler & Co Eid Kazzi, Slater & Gordon Lawyers NSW Pty Ltd Darren King, Gillis Delaney Lawyers Helen Li, Hunt & Hunt Jessica Mackenzie, Slater & Gordon Jodie Magee, Slater & Gordon Kristi McCusker, Kenny Spring Solicitors
The victorious Barker College mock trial team after their win.
A case of arson was the subject of the Mock Trial grand final on 12 December 2014 at the University of Sydney. Some 192 schools competed throughout the year, with Barker College Hornsby (prosecution) and John Paul College Coffs Harbour (defence) battling it out in the grand final. More than 1000 NSW students competed in the popular event, developing legal skills and gaining court experience. Magistrate Elizabeth Ellis was assisted by adjudicators Dr Virginia Marshall and Ilknur Bayari to decide the winners. The University of Sydney sponsored the event and awarded Keiran O’Sullivan from John Paul College the Best Advocate award. Tania Dalton, who runs the program for the Law Society of NSW, said the mock trial and mock mediation programs gave high school students a taste of how the justice system worked by allowing them to act in the roles of lawyers in a simulated trial or arbitration. “It is incredible to see the students develop confidence and skills in analysis and logical thinking when participating in this program,” Dalton said. Any member who wishes to register as a volunteer magistrate, coach or scriptwriter for the 2015 Mock Trial competitions should contact the Law Society’s community programs coordinator on 02 9926 0253 or email@example.com.
Geoffrey O’Hare, Slater & Gordon David Pena, Colin Daley Quinn Jamie Ngoc Quach, Moray & Agnew Lawyers
AnastasiaStojanovic, Law Partners Compensation Lawyers Dijana Talevska, Law Partners Compensation Lawyers
JonathanWalsh, Maurice Blackburn Lawyers Gabrielle Watts, Moray & Agnew Lawyers Nicola Whiting, Maurice Blackburn Lawyers
Phillip Young, Slater & Gordon Melissa Zen, Sparke Helmore
FEBRUARY 2015 I LSJ 11
YOUNGLAWYERS LOSING ARTICULATIONSKILLS Young lawyers’ oral communication skills are
PROFESSIONAL NOTICES On 20 November 2014, the Council of the Law Society of New South Wales resolved to terminate the following manager appointments, as of 12 noon:
diminishing, putting them at risk of failing to master the fundamentals of practice, according to a group of leading lawyers. Tests conducted by BigHand and Nuance Communications revealed that while many young lawyers had fantastic written communication skills, they were falling down when it came to oral articulation.
• Richard Gerard Flynn as manager of the law practice known as Christopher Lee Lawyers
• David Michael Prior as manager of the law practice known as Priority Business Lawyers
• Anthony Neary Walker as manager of the law practice known as Greenstein & Associates
On 20 November 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004, Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Henwood Lawyers, formerly conducted by Deborah Joy Henwood. OPENINGOF LAW TERM2015DATES 2 February – Red Mass, St Mary’s Cathedral at 9.00am 2 February – Anglican Service, St James on King Street at 10.30am 10 February – Greek Orthodox, Greek Orthodox Cathedral of the Annunciation at 6.30pm 11 February – Jewish Service, The Great Synagogue at 5.30pm 19 February – Islamic Service, Auburn Gallipoli Mosque at 6.00pm
The Hon. Justice Michael Kirby
“This generation of graduates and younger lawyers verbalise their ideas and thoughts by putting it on the screen – by typing,” said Theodora Ahilas, principal and director at Maurice Blackburn. “They are fantastic in print, but when you question them on their documents, in some instances they fall short of being able to articulate their position.” When much of a lawyer’s work involved court appearances, this could be a problem, she added. “Judges will throw questions at you, and you have to be able to answer them in a well-thought-out, articulate way.” Julia Harrison, partner at Carroll O’Dea Lawyers, believes the rise in texting and emailing has had a “massive e ect” on her generation and those younger than her. “In terms of doing business and being a lawyer, the ability to sit down, and look someone in the eye and listen to their story and use your intuition is so important, and it does concern me that people are losing that skill. I just don’t think that sending a text message or email without properly considering it is the right way to communicate,” she said. “I think the phone call is almost becoming a lost art.” The Hon. Justice Michael Kirby, retired Justice of the High Court of Australia, agrees and says the telephone is a “beautiful thing”. “Younger people are losing the art of speaking to each other via telephone. They text. Even when they are in the same room. It’s ridiculous,” he said. “Oral communication and the way in which we can put things over – not only by words, but by gestures, by a look, by a raised eyebrow, by actions – is the way we really communicate with each other and we see the whole message, the whole context, and that makes for better understanding.” The view that typing an email or developing documents via typing them into a computer is the most e cient use of a lawyer’s highly-valuable time is a fallacy, according to the tests. “Tests show that lawyers are typically three times more e cient when verbalising their ideas rather than typing them,” said Anthony Bleasdale, director, Asia Pacific at BigHand. “This is a significant result in an industry where time is money. “Law firms need to ensure they are not losing e ciencies in how their lawyers are working, provide the right tools to maximise their e ciency and ensure younger lawyers are developing the oral communication skills they need.”
KEYNOTE SPEAKER T HE H ONOURABLE T.F. B ATHURST AC, C HIEF J USTICE OF N EW S OUTH W ALES
12 LSJ I FEBRUARY 2015
RIGHTS ANDFREEDOMS INCOMMONWEALTHLAWS ISSUES PAPER In December last year, the Australian Law Reform Commission (ALRC) released an issues paper, Traditional Rights and Freedoms —Encroachments by Commonwealth Laws (IP 46) , and has called for submissions from the public. The Freedoms Inquiry is a review of Commonwealth legislation for consistency with traditional rights, freedoms and privileges. These may be seen as fundamental freedoms in modern society, such as freedom of speech, of religion, of movement and association; and rights or privileges such as client legal privilege, the right to a fair trial, and access to the courts, to name a few. The terms of reference list 19 such rights, freedoms and privileges. The Attorney-General has asked the ALRC to identify provisions in Commonwealth laws that encroach upon these traditional rights, freedoms and privileges, and critically examine these laws to determine whether the encroachment is justified. ALRC president Professor Rosalind Croucher, commissioner-in-charge of the inquiry said, “Rights and freedoms are rarely absolute and will sometimes conflict with each other. This inquiry raises di cult questions of how fundamental rights and freedoms should be balanced in liberal democracies. It is a great challenge, but it also an area in which the ALRC has considerable recent experience — freedom of speech, for example, was an important consideration in recent ALRC inquiries into privacy law, copyright, classification and censorship, and secrecy laws.” The issues paper provides a brief explanation of each of the rights, freedoms and privileges listed in the terms of reference, their origin and rationale, and how they are protected from statutory encroachment. For each one the ALRC asks the question: What criteria or principles should be used for determining when encroachment is justified? The issues paper also invites people to identify Commonwealth laws that unjustifiably encroach on traditional rights and freedoms, and to explain why the laws are not justified. C M Y CM MY CY CMY K “Rights and freedoms are rarely absolute and will sometimes conflict with each other. This inquiry raises di cult questions of how fundamental rights and freedoms should be balanced in liberal democracies.” The ALRC has been asked to consider commercial and corporate regulation, environmental regulation and workplace relations, but the inquiry is not limited to these areas. The ALRC invites individuals and organisations to make submissions in response to specific questions, or to any of the background material and analysis contained in the issues paper. The issues paper is available free of charge on the ALRC website at www.alrc.gov.au/ publications/traditional-rights-freedoms-ip46 and as an ebook. The ALRC prefers submissions via the ALRC online submission form: www.alrc.gov.au/ content/freedoms-ip46-submission Submissions are due to the ALRC on 27 February 2015. The ALRC plans to release a discussion paper in July 2015 and will provide its final report to the Attorney-General in December 2015. PROFESSOR ROSALIND CROUCHER, ALRC PRESIDENT
FEBRUARY 2015 I LSJ 13
NEEDTORETHINKACCESS TOJUSTICE INRURAL ANDREMOTECOMMUNITIES
Key findings from the report include: • Contrary to perception, solicitors are not leaving RRR NSW at a rate different to general population trends. In RRR NSW, there are far fewer solicitors per head of population than in metropolitan areas (three times lower than for NSW as a whole) but over the past 20 years the ratio of solicitors to population has not declined and actual solicitor numbers have increased. • Within RRR NSW, there are region to region variations, and the biggest factor seems to be the economic and demographic growth of large regional centres such as Dubbo, Wagga Wagga and Tamworth, which has occurred to the detriment of smaller towns and the rural areas surrounding them. Broadly speaking, changes to solicitor numbers have paralleled broader population changes. • In 2009 and 2011, 19 local government areas (LGAs) in NSW did not have a “resident” solicitor, that is a solicitor who indicated that LGA as their principal place of practice. Eighteen of these LGAs had populations under 7,000. A number of other LGAs had one or only a small number of “resident” solicitors. In general, the more remote and disadvantaged the area, the smaller the number of solicitor positions, and the greater the difficulty in recruiting and retaining solicitors. • In RRR areas with declining populations, among the private practitioners interviewed none had plans (or could afford) to recruit new staff. These solicitors suggested that there was not enough legal work to sustain additional resident solicitors in their LGA and probably would make finding a successor a challenge. The director of the Law and Justice Foundation and report co-author Geoff Mulherin said there was no doubt it was tough to access lawyers in remote areas, especially where there was a declining population. “While the report does not provide all the answers, it helps to identify the problem accurately,” he said. “Only by understanding the true nature of the problem, including the uneven distribution of legal assistance services across NSW, can we hope to come up with effective solutions.” This is the second report published by the Law and Justice Foundation of New South Wales looking at lawyer availability in these areas. Data in the report were sourced from the NSW Law Society database on registered solicitors, personnel data from Legal Aid NSW, the Aboriginal Legal Service (NSW/ ACT) and NSW community legal centres as well as final ABS population estimates current at the time. This report follows Recruitment and retention of lawyers in regional, rural, remote NSW (Forell, Cain and Gray 2010) also published by the Law and Justice Foundation of New South Wales. Both reports can be downloaded from www.lawfoundation.net.au
Finding a solicitor in remote NSW and in regional areas experiencing population decline has been getting harder over the past 10 years – but not for the reasons many believe. A new report by the Law and Justice Foundation of New South Wales investigating the availability of solicitors in regional, rural and remote (RRR) NSW was launched on 12 December by the NSW Law Society’s immediate past president Ros Everett, who hails from Wellington in country NSW. The research found that the lack of solicitors in many areas is not a result of recruitment and retention challenges, but rather is a question of the existence and sustainability of solicitor positions in the first place. “This finding might seem trite, but in fact it is very important,” said Leanne Topfer, chair of the Law Council’s new RRR Committee, and herself a solicitor based in Burnie, Tasmania. “Einstein famously said that if he had an hour to solve a problem his life depended on, he would spend the first 55 minutes determining the proper question or problem. Much of the work to date addressing the lack of lawyers in regional, rural and remote areas has been focused on recruitment and retention issues, but to be honest, we haven’t been that effective. This report suggests why – we’ve probably been focusing on the wrong problem.” Everett said the findings in the report were very important for the profession and for access to justice in general. “The Law Society is vitally interested in the availability of solicitors and legal assistance services in all regions, and my predecessors as president chaired the working group that originated this project,” she said. “The Law and Justice Foundation has taken a typically rigorous approach to the issue, combining the best available data with on-the-ground interviews with solicitors. As a result they have provided new evidence and analysis upon which to base reform.” “The Law Society is vitally interested in the availability of solicitors and legal assistance services in all regions, andmy predecessors as president chaired the working group that originated this project” ROS EVERETT, FORMER LAW SOCIETY PRESIDENT
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BRIEFS FROM THE ARCHIVES
review THE YEAR IN 1983
Take a trip down memory lane through the pages of the Law Society Journal.
RANDOMBREATHTESTING One year after NSW introduces random breath testing (RBT), the Law Society releases a brochure to inform the public of their legal rights. Victoria was the first state to introduce legislation for RBT in 1976, followed by the Northern Territory and South Australia. NSW and the ACT made the change in 1982.
In NSW, fatal crashes decreased by 48 per cent within four months of the introduction of RBT.
IN THE NEWS The Aboriginal Land Rights Act 1983 comes into place, providing land rights for Aboriginal people and land councils. The Human Tissue Act 1982 begins allowing for the removal of human tissue for transplants. The Journal reports on a range of new o ce supplies, including post- it notes from 3M and a “whizz-bang word processor” that costs $9,300 with which “one solicitor has thus been able to process an extra 200 writes a month”. Nick Greiner becomes NSW Opposition Leader. Malcolm Fraser is ousted by Bob Hawke who takes over as Prime Minister. Clayton Utz merges with Pritchards, becoming Sydney’s fifth-largest firm with 26 partners and a professional sta of 73. (Clayton Utz now has more than 200 partners and 1750 sta in seven o ces in Australia.)
The Journal publishes a guide “for survival in a market that has fallen by 50 per cent”. “The huge downturn in conveyancing in 1982 has caused a general decline in the work available to NSW solicitors,” the Journal reports. “While the recession has had no demonstrable detrimental e ect on other areas of work – litigation is in fact booming and family law, debt collection, company liquidation and bankruptcy have increased – solicitors whose practices were conveyancing-based are moving into other areas, and competition for work is fierce ... Most firms seem to be battening down the hatches on the assumption that the recession will continue. “Conveyancing and commercial work is down around 50 per cent and income is down 40 per cent overall. Some firms have retrenched 50 per cent of their sta , others have merged for economies of scale.”
NSW Attorney-General Paul Landa and Justice Lionel Murphy of the High Court join 380 guests at the Opening of Law Term Dinner at Sydney’s Regent Hotel.
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BRIEFS OUT AND ABOUT
MOCK TRIAL GRAND FINAL Students from Barker College and John Paul College went head to head in the Law Society’s mock trial grand final held at the University of Sydney in December.
SPECIALIST ACCREDITATIONCELEBRATION The state’s latest batch of newly-accredited specialists got together to celebrate their achievements at the Law Society of NSW in December.
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BRIEFS CAREER MOVES
MEMBERS ON THE
TERESA DODARO Now a senior associate Edwards Family Lawyers
MATILDA ROWE Now an associate Blanchfield Nicholls Partners Family Law
CAMERON CHEETHAM Now a partner Henry Davis York
ALLANMCDOUGALL Now consulting principal Keypoint Law
ROBERT CRITTENDEN Now a principal Meridian Lawyers
JASMINE PRICE Now a special counsel Meridian Lawyers
DAVID PARTRIDGE Now a special counsel Meridian Lawyers
LACHLAN HEATHER Now a senior associate Meridian Lawyers
KAREN TRIGGS Now a senior associate Blanchfield Nicholls Partners Family Law
STEPHEN DOOREY Now an associate Blanchfield Nicholls Partners Family Law
MICHAEL BARKER Managing partner M&A and Tax King & Wood Mallesons
JULIE FLEMING Practice group manager for crime Burke and Mead Lawyers Newcastle
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
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LEGAL NEWS FROM AROUND THE WORLD
GERMANY MEINKAMPF REPRINTROW A group of historians has promised to complete the first German scholarly edition of Hitler’s anti-Semitic Mein Kampf , despite the state of Bavaria threatening prosecution. According to The Times , Bavaria originally commissioned the edition but withdrew its support in the face of pressure from Jewish groups. Mein Kampf was published in 1925 and 1926 in two volumes and describes Hitler’s hatred of Jews and his plans for an expanded Germany. The publication has been banned in Germany since 1945, at which time copyright in the works passed to Bavaria. The historian leading the preparation of the new edition, Christopher Hartmann, said it would contain 4000 notes and commentaries exposing Hitler’s crude arguments. “Everything else about Hitler has been published in annotated editions — his speeches from 1933-45, his military orders, his discussions with international diplomats, his early letters and so on,” Dr Hartmann said. The World Jewish Congress board opposes a reprint, saing: “ Mein Kampf continues to be a tool of incitement for neo-Nazi and other racial bigotry- oriented groups and individuals throughout the world.”
USA CHALLENGE TO EXECUTIONER LAW
UK FIRST FGMCASEKICKSOFF A UK court has begun hearing the country’s first female genital mutilation (FGM) case against a hospital doctor. Dr Dhanuson Dharmasena, a junior registrar at Whittington Hospital, allegedly mutilated a 24-year-old mother following childbirth, reports The Guardian . The woman underwent FGM (in which parts of the labia are sewn together) as a child in Africa. Years later the doctor made two cuts to her vaginal opening to allow delivery of the baby. When Dharmasena sewed her up, a midwife warned him that the way in which he had done it was illegal. He asked a senior doctor for advice, which was that it would be “painful and humiliating” to remove the stitches. “It is the stitching back together by Dr Dharmasena which the prosecution says is an offence under the act,” said prosecutor Kate Bex. Dharmasena is charged with Hasan Mohamed, who is accused of aiding and abetting the doctor. Both deny the charges. Under the Female Genital Mutilation Act 2003, a doctor does not commit an offence if the actions involve a surgical operation on a woman in any stage of labour, or immediately after birth, for purposes connected with the labour or birth. The jury of seven women and five men was told: “It will be for you to decide if Dr Dharmasena’s admitted act of sewing [her] labia together was necessary for her physical health or was for purposes connected with the labour or birth.”
Legislation that protects the identity of those involved in death row executions in the US state of Ohio is being challenged by opponents who say the anonymity is unconstitutional. The law which takes effect in March makes the names of staff such as doctors involved in execution prisoners a secret, even immune, from subpoena. People who reveal names of those involved can be sued and fined. Those challenging the law say it infringes the public’s first amendment rights. “Ohio’s new secrecy law is specifically designed to foreclose only one side of this debate, which is a clear violation of the public’s first amendment rights,” said Timothy Sweeney, a lawyer for one of four death row prisoners. “Constitutional protections are most needed precisely when the government begins to limit the ability of its citizens to question, speak, or inquire freely into its workings, and that is certainly the case here.” One argument against the secrecy law is that doctors involved in other areas that attract fierce public debate have never enjoyed such protection. “Those who perform abortions or those who engage in stem cell research, for example, also face intense directed speech from citizens in opposition to their activities,” the motion filed by the prisoners reads.
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Legal Enquiry Service
WHAT DO YOU MEAN YOU
DON’T KNOW EVERYTHING?
EU OBESITYRULINGCREATES EMPLOYERNIGHTMARE The European Court of Justice has found that obesity can legitimately be classified as a disability and employers must protect overweight workers from discrimination. The Times reports that the ruling, delivered late last year, could mean companies must provide bigger desks and chairs or special parking spaces for employees disabled by their size. The judges concluded that, while obesity itself is not a disability under European Union laws, its effects could be disabling. Danish child care worker Karsten Kaltoft, who weighed 158 kilos, brought the case, claiming he was fired because his weight stopped him from performing his duties. Lawyers flagged that the ruling could create a nightmare for employers trying to figure out what they need to do to avoid discriminating against employees. “This has opened a can of worms for all employers in this country,” said Tam Fry, spokesman for the National Obesity Forum. “They will be required to make adjustments to their furniture and doors and whatever is needed for very large people. It will also cause friction between obese people and other workers.” Niilo Jääskinen, the advocate-general, found that if obesity has “reached such a degree that it plainly hinders participation in professional life, then this can be a disability”.
BELGIUM PRISONER’SRIGHT TODIE OVERTURNED A Belgian man facing life behind bars for rape and murder has been refused a request to die. The BBC reports that Justice Minister Koen Geens refused the request based on medical advice from doctors treating Frank Van den Bleeken, who is unable to control his violent sexual urges. Van den Bleeken will be moved to a new centre for psychiatric treatment. Van den Bleeken’s case is the first to involve a prisoner since assisted dying laws were introduced in Belgium 12 years ago. His request to die was approved by Belgium’s Federal Euthanasia Commission in September, but last month the Justice Ministry released a statement saying that Geens “takes note of the decision of doctors treating Mr Frank Van Den Bleeken to no longer continue the euthanasia procedure”. A spokesperson told the BBC the doctor due to carry out the procedure was no longer willing to be involved. Van den Bleeken, 52, had argued that he would rather die than spend the rest of his life in prison. “I’m in my cell 24 hours a day. That’s my life. I don’t feel human here. What do I have to do? Do I have to sit here and waste away? What’s the point in that?” he said in a TV interview.
The law can be technical, detailed and even disordered. And sometimes as lawyerswe have to quickly become experts in areas of the law that we don’t usually specialise in. That’s why our Legal Information Officer assists members across a range of legal issues, including business law, criminal law, family law, property law, wills and estates and more. Contact Peter Leggo today to find the answers you’re looking for. (02) 9926 0333 1800 420 934 (Toll free) Peter.Leggo@lawsociety.com.au
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HOT TOPIC OPINION
40 YEARS OF THE RACIAL DISCRIMINATION ACT In the wake of the Charlie Hebdo murders in Paris, Race Discrimination Commissioner DR TIM SOUTPHOMMASANE looks at the role of Australia’s anti-discrimination legislation – and why society still needs section 18C.
making it unlawful to discriminate on racial grounds – in the provision of goods and services, employment, access to public places, housing and accommodation, and in advertising – the RDA has ensured people can hold others to account when they have been denied equal opportunity. In 1995, the scope of the legislation was expanded to include racial vilification. Responding to rising concern about racial violence and community harmony, parliament introduced into the Act provisions dealing with racial vilification. A new section 18C made it unlawful to do a public act that was reasonably likely to offend, insult, humiliate or intimidate someone because of their race, colour, ethnicity or national origin. This section was accompanied by section 18D, which provides free speech exemptions for the conduct of public debate. Of course, there has been much recent debate about these provisions. In 2014, the Abbott Government proposed a bill that would repeal section 18C of the Act and related provisions, arguing it placed excessive restrictions on freedom of expression. The effort was abandoned in the face of enormous public opposition and criticism. Multicultural and Aboriginal and Torres Strait Islander communities,
The High Court case of Koowarta v Bjelke-Petersen, which concerned the Act, was also the first instance when the courts endorsed the view that domestic laws could be considered valid exercises of the external affairs power in the Constitution. The judgment in that case would provide authority for the development of the external affairs power in subsequent cases such as the celebrated Tasmanian dams case. The role of the Act in underpinning native title would be confirmed in the 1988 High Court judgment in Mabo v State of Queensland (No 1) . There, the majority of the High Court held that Queensland legislation that sought to extinguish native title in the Murray Islands of the Torres Strait was constitutionally invalid, because it was inconsistent with the Act. The judgment meant that no state law could validly extinguish or acquire native title rights in a way that discriminated on the basis of race. In Mabo (No. 2), the High Court recognised native title at common law and rejected the doctrine of terra nullius . More generally, over its 40-year history, the RDA has provided Australians with a legal remedy for racial discrimination. Prior to the Act, there was little in the common law that dealt directly with discrimination. In
T his year marks the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA). The RDA was the first human rights and anti- discrimination law enacted by the federal parliament, and an important redress of Australia’s treatment of Indigenous people. It was also an important development in the repudiation of White Australia and the advent of multiculturalism. As recently described by Noel Pearson, the Act is akin to the Civil Rights Act 1964 in the United States. Its significance has been profound, but not always recognised. On the occasion of the anniversary, it is worth revisiting the Act’s history and impact. As the first Commonwealth legislation concerning human rights and discrimination, the Act set a precedent. All states and territories now have anti-discrimination legislation. The Commonwealth parliament has also enacted legislation concerning sex discrimination, disability discrimination, and age discrimination.
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