LSJ - February 2016
FIVE AUSTRALIAN LAWYERS ON THE HIGHS AND LOWS OF GLOBETROTTING CAREERS
PRESUMPTIONOFGUILT WHAT AMERICAN DOCUMENTARY MAKING A MURDERER SAYS ABOUT MODERN JUSTICE
ANEWADVOCATE FORGUARDIANSHIP ALAN CAMERON ON HIS LAW REFORM ROLE VULNERABLEWITNESSES INFAMILY LAW WHY ABUSERS MUSTN’T CROSS-EXAMINE MANAGEMENTVERSUS LEADERSHIP HOW TO HANDLE A DIFFICULT BOSS SOLICITORSGOINGBACKTOBASICS THE HIGH COURT DELIVERS ON SENTENCING
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24 HOTTOPIC The Volkswagen episode should be a wake-up call on the need to confront corrupt conduct across all sectors, writes Selwyn Black 26 INFOCUS The failure of the Federal Government to protect vulnerable witnesses in family law proceedings leaves women feeling they have been thrown to the wolves, writes Janet Loughman 28 COVERSTORY Meet five Australian lawyers making a difference in the law overseas. By Kate Allman and Dominic Rolfe
56 PSYCHE When it comes to putting your best foot forward, embrace your strengths and let go of what you can’t control, writes organisational psychologist Rachel Setti 58 CITYGUIDE Old and new, European and Asian – Ute Junker gives us a tour of Turkey’s jewel city, Istanbul 62 YOUWISH If you want a luxury getaway in Fiji – with or without the children – try Vomo Island, a private retreat just a short ferry ride from Denarau
Julie McCrossin talks to Alan Cameron AO about his new role with the NSW Law Reform Commission and why it’s time to review guardianship legislation 48 ADAY INTHELIFE Thomas Spohr, senior solicitor at the Office of the Director of Public Prosecutions, tells Jane Southward about his work as a prosecutor 54 HEALTH Vegetable? Canola? Olive? Healthy eating can be confusing. Nutritionist Joanna McMillan gives the lowdown on cooking oils
FEBRUARY 2016 I LSJ 3
68 ADVOCACY: THE LATEST IN LAW REFORM 71 CRIMINAL: SENTENCING FOR CTH OFFENCES 74 CITIZENSHIP: CONSTITUTIONAL CHALLENGE? 76 RISK: PREPARING EXPERT REPORTS 77 TAX: STINGS IN DELAYED ESTATES 78 PROPERTY: STRATA SCHEMES REFORM 80 PROPERTY: SUNSET CLAUSES 82 INTERNATIONAL: FOREIGN STATE IMMUNITY 84 COSTS: ESTIMATES UNDER THE UNIFORM LAW 86 EMPLOYMENT: ADVERSE ACTIONCLAIMS 88 WILLS & ESTATES: FAMILY PROVISION CASES 90 PROPERTY: THE END OF UNDERQUOTING 92 CIVILPROCEDURE: HARMAN PRINCIPLE 94 CRIMINAL: BAIL & ‘SHOW CAUSE’ OFFENCES 96 TRIBUTE: THOMAS HURLEY 97 CASENOTES: FAMILY LAW, WILLS & ESTATES
46 DOINGBUSINESS Etiquette and fashion with Timothy McGinley, plus tips to do better in business 52 EXTRACURRICULAR A Sydney lawyer cycles in Nepal to raise money for Oxfam 66 NON BILLABLES Yarns we can’t bill for 72 LIBRARYADDITIONS New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle 64 LIFESTYLE Book reviews, events and giveaways
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS News and events from the legal world 16 PROFESSIONALNOTICES 16 THE LSJ QUIZ 20 CAREERMOVES Who moved where this month 21 OUTANDABOUT
The latest accredited specialists celebrate
22 GLOBALFOCUS 42 CAREERCOACH 44 CAREER101
Featuring Allens’ new managing partner, Richard Spurio
4 LSJ I FEBRUARY 2016
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FEBRUARY 2016 I LSJ 5
A WORD FROM THE EDITOR
Welcome to the rst edition of LSJ for 2016. I hope you enjoyed a refreshing and restful holiday.
If, like me, you spent 10 hours of that holiday watching the sensational US documentary Making a Murderer, you’ll probably want to read Philip Almond’s article on page 22, “Marginalised Outsiders”. For those of you who have been living under a rock and haven’t heard of the Net ix show or the waves it has made since its January release, the article – which contains spoilers – will enlighten you as to the apparent (and astounding) faults at the heart of the US justice system. Opinions are divided on protagonist Steven Avery’s innocence or otherwise – what do you think? If you didn’t get much of a holiday, you might enjoy reading our cover story on ve Australian lawyers who are forging careers abroad. It is a dream of many solicitors to have a stint working overseas, and the article on page 28, “Frequent Flyers”, demonstrates the myriad ways Australian lawyers can do just that in places as diverse as Myanmar, Hong Kong, New York, London and e Netherlands. e challenges are as varied as the perks, and it’s great to see the di erent opportunities available to Australian lawyers possessing a fair dose of wanderlust. I look forward to another year unearthing interesting tales amongst the profession.
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
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 © 2016 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
Selwyn Black is a partner at Carroll & O’Dea Lawyers and acted on the recovery proceedings on behalf of HSU NSW against Michael Williamson. He argues that it’s time to confront corrupt conduct across all sectors. Hot topic p24
Julie McCrossin is a writer and trainer who studied law. She profiles Ashurst lawyer Alan Cameron, the new chair of the NSW Law Reform Commission, on why it’s time to review guardianship legislation. Profile p38
Joanna McMillan is a dietitian, nutritionist and author who writes regularly for the LSJ. If you are confused about which oils are best when cooking, read her lowdown on this common kitchen product. Health p52
Allison Benson is a director of Kerin Benson Lawyers. She outlines the broad reforms to strata laws that are due to commence on 1 July. The nuts and bolts of the latest strata laws p70
Cover: 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 no longer accept unsolicited articles.
PRESUMPTIONOFGUILT WHATAMERICANDOCUMENTARY MAKINGA MURDERER SAYSABOUTMODERNJUSTICE
ANEWADVOCATEFORGUARDIANSHIP ALANCAMERONONHISLAWREFORMROLE VULNERABLEWITNESSESINFAMILYLAW WHYABUSERSMUSTN’TCROSS-EXAMINE MANAGEMENTVERSUSLEADERSHIP HOWTOHANDLEADIFFICULTBOSS SOLICITORSGOINGBACKTOBASICS THEHIGHCOURTDELIVERSONSENTENCING
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6 LSJ I FEBRUARY 2016
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n my first official communication via the LSJ , I would like to provide a brief career background and agenda for the year ahead. For more in-depth information, please see my interview with LSJ Editor Claire Chaffey (page 12), or refer to my Opening of Law Term speech, which will be available online from 5 February. I started my legal career with what was Minter, Simpson & Co in the early ‘70s and have spent my entire working career at the firm where I am now a partner. For the most part I have worked in major litigation, specialising in commercial dispute resolution. My association with the Law Society began in 2005. I have
been a member of the Society’s Licensing, Finance and Audit committees. I have also been Chair of the Professional Conduct Committee for the past seven years and the Litigation Law and Practice Committee for the past five years. In 2011, I was elected a Councillor of the Law Society. My agenda for the year ahead includes the commencement of a new three-year strategic plan, strengthening and expanding our member services with a focus on continuing professional development, a renewed focus on the Law Society’s relationships with the regions and regional practitioners, the development of a comprehensive history of the Law Society of NSW, and an enhanced program of engagement with government and the public on behalf of member solicitors. A fair and democratic society is founded upon access to justice for all. Without this, those in our community who are poor or marginalised are the first to suffer. Fighting for adequacy and consistency for legal assistance programs, courts and tribunals at both State and Federal levels is, therefore, central to my agenda. I strongly believe the Law Society has a vital part to play in promoting this and other fundamental legal rights. In 2013, Minters tragically lost an outstanding lawyer, Jennifer Barton, to ovarian cancer. This deeply impacted all those who knew Jennifer and it was a great loss to the legal profession. I have, therefore, nominated Ovarian Cancer Australia to receive the financial and in-kind support of the Society as my chosen charity for the year. I encourage you to visit ovariancancer.net.au for more information and to give your support to this most worthwhile cause. Finally, I would like to draw your attention to the first in our series of Thought Leadership events for 2016. A Global Climate Agreement: Analysis & First-Hand Reports will take place on 16 February and include three experts who were at the recent Paris Climate Summit. See lawsociety. com.au/thoughtleadership for details. GARY ULMAN
8 LSJ I FEBRUARY 2016
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FEBRUARY 2016 I LSJ 9
LETTERS TO THE EDITOR
All bark and no bite? It is great to hear the CEOs of law firms
Lawfirmsneed todomore than simply talkaboutflexibility in theworkplace or theywill lose staffandclients,a gatheringof lawyersatAllensheard recently. JANESOUTHWARD reports. TIME TO BE FLEXIBLE
Russellnoted that for a long timewomen hadwantedmen to actively engage in discussions around exibleworkhours and otherworkplace changes so “it isnot just seen as something that isdirectly a ectingwomen”. “It’s rare tohear of equaldivision of care of children,”he said. “All the evidence is showing youwill bemore e cient and a better long-term employeewhen youhave exibility atwork. “ epayback in terms ofproductivity and performance and energy and commitment to the organisation ishigh.” When it came to challengingmen to workouthow to combine corporate success, parenting andotherpassions,Russell said the legalprofessionhad started to realise thedebate was aboutmore than alteringworkhours. Russell said researchhe conducted for the VictorianWomensLawyers a few years ago found that clients “weren’t ashungupon exibility as lawyerswere” andwere supportive of their lawyersworking exiblehours. “Iwonder if organisationsneed tobe serious about this andput some targets on men and exibility in the sameway you are doing it around targets forwomen in senior management,”he said. “When youput a mandate inplace you getbetter outcomes. It doesneedbuy-in frommanagement.Unless exibility ismainstream and thepart of the way youdobusiness, it’snot going tohappen.” Agileworking InMarch,Herbert SmithFreehills (HSF) in theUnitedKingdom trialled an initiative they call “agileworking”, encouraging some sta , includingpartners, towork fromhome oneday aweek and take control ofwhen and where theywork. e trialwas successful, with 89 per cent reporting improvedwork/ life balance and just 3 per cent reporting negative responses from their teams or practice groups. e initiativenowhas been introduced to theLondon teams.
“Wearenot makingenough progress, inmy
view.Thebusiness case isprettyclear. Weabsolutelydo needflexibility. Ifwedon’tchange ourmodel,non- traditionalmodels willcome inand outcompete in theirabilityto appealtoclients andto lawyers.” MICHAELROSE, CHIEFEXECUTIVEPARTNER, ALLENS
talk about their desire to introduce more flexibility into their firms ( LSJ , November 2015, pp34-36) but are they addressing the most important issue? I have heard quite a few women speak about what they regard as unsatisfactory treatment by a law firm on their return to work after maternity leave. Your readers may wish to add their own stories. Stories range from (a) “They would not give me the most interesting work from which I would have gained the most opportunity to learn because they did not want to have a part- timer involved in the file” (possibly breaches of s5 or 7A of the Sex Discrimination Act 1984 NSW or s 351 of the Fair Work Act ). I even heard of one case where a partner actually said he was reluctant to assign work because the partner never knew when the employee might be absent to look after their sick child; (b) “They would not give me enough work and then they complained about me not meeting budget or utilization target” (I even heard of one where
FROMTRAGEDY SPRINGSHOPE AYEARSINCETHELINDTCAFÉSIEGE, KATRINADAWSON’SLEGACYTHRIVES
C hrisFreeland,now themanaging partner ofBaker &McKenzie inAustralia, remembers theday he raised the subject ofworking a four- dayweekwith apartner of thefirm wherehewasworking at that time. “Mypartner looked atme and laughed; thatwas a very short conversation,”Freeland recalled. “Certainly at that time therewas a sense thatwanting this sort of flexibilitymeant Iwasn’t serious about my career.” Flexibilitywas a key issue and “law firms are terrible at it”,Freeland told a forum, “NewWays ofworking:men in conversation”, organised by the WomenLawyersAssociation ofNSW on 14October.
“What rmsneed aremanagerswho look forways to redesign theworkplace and work outhow sta can thriveby recreating workplacenorms. It’s aboutmaking assumptions thatmen andwomen can equally share the care of children.” JournalistCatherineFox,who convened the event andhaswritten aboutworkplace issues for30 years, said the languageused around workwaspowerful andneeded to change. “For one thing,weneed to abolish the term ‘primary caregiver’ and thenotion of the ideal workingmodel,”Fox said. Russell agreed, saying, “ e critical thing about it is that exibilityhas been seen as something like a fridgemagnet that sits on the outside. It’s anice ‘todo’ and it’s for aparticulardemographic,but it’snot necessarily apart ofhowwedo thingshere. “ e fundamental challenge around it is what is thenature ofwork and challenging our assumptions about idealwork, ideal workers, and ideal career – and this still hasn’thappened.”
“The toughestnut to crack is cultural change,” he said. “Themore you talk about it, the better.Themore transparent you are, the better.Clients aremore open toflexibility thanwe give them credit for.” GraemeRussell, a formerAssociate Professor ofPsychology atMacquarie Universitywho consults tomanyfirms, includingAlcoa,Caltex,AMP,Westpac and a range of lawfirms, told the forum of 90 attendees he hadnot seen an organisation, let alone a law firm, thatwas seriously interested in gender equality. “Flexibility is stillnot seen as a mainstreamnotion,”Russell said. “Ihaven’t come across an organisation yet that is seriously interested in gender equality. “Men usually get engaged at a policy level, but it’s rare for them to ask for, andwork, trulyflexibly.We should treat this as a critical business issue.
“Weneed to start a conversation about the value ofwork and our expectations aboutwork,”Freeland said. “The key is openness and transparency.Aswehavemore of these conversations, itwillbecome thenorm.” MichaelRose, the chief executive partner atAllens, agreed, saying, “We arenotmaking enough progress, inmy view.The business case is pretty clear.We absolutely do needflexibility. “Ifwe don’t change ourmodel, non-traditionalmodelswill come in and outcompete in their ability to appeal to clients and to lawyers.” Freeland said hewas optimistic theworkplacewould continue to change and that for young lawyers, flexibilitywas importantwhether for caring duties of children, further study, or passions outside the law.
APASSIONFORCHANGE THEAFGHANREFUGEEDEVOTINGHISLEGAL CAREERTODEFENDINGHUMANRIGHTS
THEPAINFULLYHIGHCOSTOFSUICIDE ALAWYER’SACCOUNTOFPERSONALLOSS LOSTINTRANSLATION(ANDTHENSOME) ADAY INTHELIFEOFACOURT INTERPRETER THEFEDERALCIRCUITCOURTINCRISIS AJUDGE’SPLEAFORGOVERNMENTACTION AREDFLAGFORCONTRACTNEGOTIATIONS PAVLOVICVUNIVERSALMUSICEXPLAINED
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WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Dr Brett Williams has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
do not have child care on that day of the week; or (f) a mixture of two or more of the above. Advertising great diversity rather hear about the more important issue: what are the best practices for law firms that ensure that they do not engage in unlawful conduct? Dr Brett Williams Williams Trade Law Hot definition not quite bona fide ... You may be interested to read the following definition found in a Trust Deed: “’Spouse’ in relation to any person includes another person of the opposite sex for the time being living with that person as that person’s husband or wife (as the case may be) on a bonfire domestic basis although not married to that person.” Terry Hartmann Hartmann & Associates policies may be good business, but I would
improvement plan” – which is a euphemism for “we want you to resign soon or we will sack you”); (c) generally treating it as the employees’ responsibility rather than the employers’ the input of di erent employees, some of whom were part time; (d) being given so much work that it is impossible to do it without staying regularly until the early hours of the morning (if done without consideration of a person’s family responsibilities e.g. the responsibility to look after children who wake up early. This could breach s 62 of the Fair Work Act , a provision which cannot be contracted out of); instructions to do work on a day when the employee is not paid to work and cannot work because they (e) being sent email or text (partners’) responsibility to manage proactively
the response to this was: “we need to put you on a performance
10 LSJ I FEBRUARY 2016
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FEBRUARY 2016 I LSJ 11
Newpresident has sights set on future
Disruptive technology and diminishing access to justice are among the greatest challenges facing the legal profession in 2016, says Gary Ulman, the new President of the Law Society of New South Wales.
W hen a young Gary Ulman went job hunting in his final year of university, the world was a place in which approaches to law firms were made via letters of application sent to addresses found in the phone book. It was also a time when lawyers carved out careers in just one firm – something Ulman has proven in his 40- plus years at Minter Ellison. While much has changed in four decades, one thing has remained the same: the fundamental importance of access to justice. It’s an issue about which Ulman has important things that lawyers can focus on simply because it’s so important that people have the opportunity not just to go to court, but to obtain legal advice and to get help in dealing with stressful and di cult issues,” says Ulman. “Having worked with the courts for 40 years, I have a close connection with the court system and I want to see them functioning and fully resourced. “In a democracy like ours, the rule of law is paramount. You can’t spend enough on courts. They are equally as important as health and education, yet it is becoming increasingly di cult to access the courts due to the cost of doing so and the delays.” In his year as President of the Law Society of New South Wales, access to justice will be Ulman’s core theme, with the funding of courts and community legal centres at the heart of his campaign. Another key aim will be a focus on the future of the legal profession, with Ulman planning to establish and chair a committee to look at the types of issues – such as technological advances and market conditions – that are likely to a ect the profession in the future. “I see disruptive technology as one of the biggest challenges facing lawyers,” says Ulman. become increasingly concerned. “Access to justice is one of the most
“Disruption is a buzzword these days but I don’t think the legal profession has escaped, or will escape, the disruption of technology. We are going to see a constantly evolving series of changes to the way the profession operates. “We are going to see greater competition among lawyers, which will put a lot of pressure on some members and the way in which they do business. They will certainly have to learn to adapt – and adapt quickly. I see what happens to the profession as critical to what we do at the Society, which is why we are going to establish the committee. If we can be well placed to anticipate many of those changes, it will enable the profession to cope better with those changes.” The committee will be bespoke, says Ulman, with a mix of councillors, members and non-lawyers. “We want to cover a broad spectrum.” he says. “We don’t just want it to be lawyer- focused. We need the input of those outside the profession who can help us look at the issues that are likely to a ect us. “We don’t want to wait for people to come and talk to us. We will be going out and talking to people. We will hold open sessions so people can come along and talk to us.” While Ulman is aiming high in terms of what he hopes to achieve in the role this year, he is under no illusions about being able to be everything to everyone. “In this job, you want to be able to help as many people as you possibly can and deal with as many issues as you possibly can,” he says. “Some people I am sure I will be able to help, and others I won’t be able to help. When you are dealing with close to 30,000 lawyers, your aim is to do the right thing by them. “Hopefully they understand that it is a big job and, but I am going to give it my very best shot.”
12 LSJ I FEBRUARY 2016
REVISEDLEGALPRACTICE MANAGEMENTGUIDELINES INPLACE In NSW, a solicitor with an unrestricted practising certificate must attend a prescribed practice management course that has been approved and accredited by the Law Society of New South Wales before they are allowed to practise as a partner, legal practitioner director, sole practitioner, or a solicitor on the record. The Law Society originally issued guidelines for accreditation for two practice management courses. The first set of guidelines was in relation to the practice management course for solicitors entering sole practice or partnership. The second was in relation to the practice management course for law firms with 35 or more partners. These guidelines, published in the early 1990s, set out the requirements for providers of the practice management course and participants. The original guidelines (originally introduced by the Law Society Council) have been fully reviewed. The Law Society engaged an independent consultant to conduct a high-level review of the practice management framework, including the 1993 Legal Practice Management Guidelines. The review comprised: (a) a preliminary report on the history of the practice management guidelines, oversight and accreditation, and contemporary legal practice in NSW; (b) a research phase, which included a review of best practices in other relevant jurisdictions in relation to practice management; (c) a consultation phase involving interviews with key stakeholders and a survey to a select group of past attendees of legal practice management courses; and (d) a public consultation period. The research found that most lawyers support such a course and feel it is a worthwhile step for those considering partnership/sole practice. Also, there was support for a face-to-face offering with online resources where applicable. The final report presented to the Law Society concluded that while the foundation upon which the practice management framework was built was sound, the framework itself would benefit from some changes to adapt to today’s market. A sound practice management framework supports practitioners taking on the responsibilities of sole practice or partnership and assists with minimising risk. The key recommendations were: • New practice management courses be developed to cater for the wide variety of practice types in NSW; • All lawyers must undertake a practice management course prior to becoming a principal, unless there are exceptional circumstances based on illness or hardship; • A robust monitoring and evaluation regime be developed to ensure compliance with the purpose of the practice management framework and any guidelines developed; and • The topics taught in the practice management courses reflect the realities of complaints lodged against lawyers. The recommendations, incorporating feedback from the consultation process, were presented to the Law Society Council. These were accepted by Council and the new guidelines approved in November 2015. These are now available on the Law Society website.
“You can’t spend enough on courts. They are equally as important as health and education yet it is becoming increasingly difficult to access the courts due to the cost of doing so and the delays.”
Another goal for Ulman in 2016 is to raise awareness for a cause very close to his heart: the fight for a cure to ovarian cancer. In 2013, a young colleague of Ulman’s, Jen Barton, pictured, lost her battle with
the illness. Her death deeply affected Ulman and many others at Minter Ellison and he has set ambitious fund-raising targets for Ovarian Cancer Australia and is determined to meet them. “Throughout her career and her time at Minters, Jen was undergoing treatment for ovarian cancer,” Ulman says. “She was a courageous lawyer, without a doubt she was brilliant. You could just see that she had ‘partner potential’ written all over the work she did. Anything that she was given she handled way beyond her level of experience. “She would often undergo chemotherapy and would be off work for a few weeks. She would come back wearing a scarf, but it wouldn’t affect her. What I found inspirational was that she would often go off in the afternoon for a chemotherapy session and I would discover she was actually online working as she was doing it. She was a very personable, down-to-earth, mature person for her age. You come across a lot of people in practice, and very few of them have the health challenges she had at such a young age. The fact she was able to cope with that and have a very bright outlook on life was just amazing.” Ovarian Cancer Australia is an independent national organisation that takes action for people affected by ovarian cancer. Each year in Australia, nearly 1,500 women are diagnosed with ovarian cancer, with more than 1,000 succumbing to the disease. Just 43 per cent of women survive five years post-diagnosis, well below the average for all cancer. February is Ovarian Cancer Awareness Month and members of the Law Society can help Ovarian Cancer Australia by hosting an ‘afternoon teal’ event. Visit www.afternoonteal.net.au to find out more .
FEBRUARY 2016 I LSJ 13
Renewed focus ondomestic and family violence services
Annmarie Lumsden, Director, Strategic Planning and Policy at Legal Aid NSW, reminds us of the valuable work Legal Aid NSW undertakes in the field of domestic and family violence.
T here is no doubt that the recent months. Domestic violence is different from other forms of personal violence in that it often involves issues of financial dependence, physical and emotional power and control, and shared emotional history. By virtue of the dynamics of the relationship, the consequences for victims, offenders and their children can be significant. Although men experience domestic violence, women and children are prevalence of domestic and family violence in NSW has gained media prominence in
significantly overrepresented as victims. In 2012, an estimated 16.9 per cent of Australian women aged over 18 had experienced partner violence (ABS Personal Safety Survey 2012 ). Domestic violence is behaviour that deprives or restricts another person from exercising their basic human rights. It can include physical, sexual, psychological, social, economic, legal and cultural harm. It infringes another person’s right to equality, security, liberty, integrity and dignity, and to their physical safety and psychological health. The primary response to domestic violence
is through the criminal justice system – arrest, prosecution, punishment, and protection orders. Inherent in the criminal justice system is the presumption of innocence and the right to a fair trial, and for those reasons legal aid is available to defendants, both adults and young people, charged with domestic violence offences. About 20 per cent of Legal Aid NSW criminal work is for people facing domestic violence-related charges. In 2014, NSW Local Courts granted 26,543 Apprehended Domestic Violence Orders (ADVO) – a significant increase over the past 14 years (in 2000, 15,584 ADVOs
Domestic violence: Where to refer clients
Women’s Domestic Violence Court Advocacy Services (WDVCAS) Information, court advocacy and referral for women in domestic violence situations and assistance with getting an ADVO.
TELEPHONE (02) 4782 4155
LOCAL COURTS COVERED
Katoomba, Lithgow, Bathurst, Mudgee
(02) 9744 1866 Burwood
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Central Coast Central West Far South Coast
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(02) 6492 5002 Bega, Narooma, Eden, Batemans Bay, Moruya
Women’s Legal Services Domestic Violence Advice Line: 8745 6999 TTY 1800 626 627 Rural free call: 1800 810 784 Casework, legal advice and advocacy for women experiencing domestic violence. LawAccess NSW: 1300 888 529 TTY 1300 889 529 Legal assistance and referral over the phone to applicants and defendants including assistance with applying for legal aid. Victims of domestic violence are priority customers for advice. NSW Police: 000 or 112 frommobiles TTY 106 Police will respond to incidents of domestic violence and apply for ADVOs on behalf of victims of domestic violence. Police are required to take action if a person discloses information about a crime e.g. domestic violence assault. Department of Community Services Domestic Violence Line: 1800 656 463 TTY 1800 671 442 Assistance with emergency accommodation and referrals for counselling, heath and legal services. 24 hours 7 days. Mensline: 1300 789 978 (24 hours, 7 days Phone support and referral for male victims and perpetrators of domestic violence. National Disability Abuse and Neglect Hotline 1800 880 052 TTY 1800 301 130 8am to 8pm 7 days Free service that takes reports of abuse and neglect of people with a disability. Safe Relationships Project (SRP) (02) 9332 1966 or 1800 244 481 Free Domestic Violence Court Assistance for people in Same Sex Relationships, Transgender and Transsexual People, Intersex People. The SRP also provides related legal advice, support and referrals for GLBTI clients experiencing or escaping family violence.
(08) 8087 2053 Broken Hill, Wilcannia, Wentworth
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New England North Coast
Armidale, Walcha, Tamworth, Gunnedah, Glen Innes
(02) 6650 0302 Coffs Harbour, Kempsey, Bellingen, Grafton, Macksville or 1800 174 466
(02) 6752 7135
Moree, Boggabilla, Inverell, Mungindi
North West Sydney (02) 4587 9997 Blacktown, Windsor Northern Rivers
(02) 6621 1044 Tweed Heads, Murwillumbah, Mullumbimby, Byron Bay, Ballina, Lismore, Casino, Kyogle
(02) 8425 8707 Hornsby, Manly, North Sydney
(02) 6964 6432 Griffith, Leeton, Hillston, Hay, Lake Cargellico
(02) 4423 8507 Nowra, Moss Vale
South Coast South Eastern
(02) 6299 3835 Queanbeyan, Cooma, Goulburn South West Sydney (02) 9601 6988 Liverpool, Fairfield, Bankstown or 0419 494 680 Southern (02) 6021 3059 Albury, Holbrook, Finley, Deniliquin Southern Sydney (02) 9589 1200 Sutherland, Kogarah Sydney
(02) 9287 7505 Downing Centre, Newtown, Waverley, Balmain or 0447 174 698
(02) 6921 6227
Wagga Wagga, Narrandera, Young, Tumut, Cootamundra
(02) 6884 7388 Dubbo, Nyngan, Wellington, Bourke, Brewarrina, Cobar, Narromine, Warren, Gilgandra
Domestic and family violence resources www.legalaid.nsw.gov.au/domesticviolence
(02) 4731 5098 Penrith, Mount Druitt
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Safety Action Meetings, which are local meetings of key government and non- government service providers aimed at preventing further harm, injury or death to victims and their children who are assessed as facing serious threat of violence. Members share information to develop a coordinated, practical plan to reduce the threat to victims’ safety. The Legal Aid NSW Domestic and Family Violence Committee has been providing high level coordination for the planning and delivery of domestic violence services since 2009. It also builds strategic and collaborative partnerships to respond to the diverse needs of clients. The process of promoting access to justice through early intervention and prevention and better targeting of legal assistance to disadvantaged and vulnerable people, is an iterative one. As such, Legal Aid NSW is developing a new Domestic and Family Violence Strategy across all areas of legal service delivery – crime, family and civil law.
Domestic Violence Unit is to connect with victims at crisis point and to help them through the myriad legal problems they may experience. Legal Aid NSW has administered the Women’s Domestic Violence Court Advocacy Program (WDVCAP) since its inception in 1996. The program funds 28 Women’s Domestic Violence Court Advocacy Services (WDVCASs). At 114 local courts across NSW, WDVCASs provide women with information, advocacy and support, particularly in relation to ADVO process, as well as referrals for family and civil issues law and non-legal needs, such as housing, counselling and financial assistance. WDVCASs also play a key role in Safer Pathway, a key element of It Stops Here: the NSW’s Government’s Domestic and Family Violence Framework for Reform. Safer Pathway is being rolled out across NSW in stages. WDVCASs host the Local Coordination Points, support services for domestic violence victims and support
were granted in NSW local courts). Where ADVO applications are not made by police, private practitioners in the Legal Aid NSW Domestic Violence Practitioner Scheme help women and children to obtain ADVOs at 32 local courts across the state. Legal aid is also available to defendants in limited circumstances. People a ected by domestic violence usually experience a series of complex, interrelated and ongoing legal problems that go beyond the criminal law. They include family and civil law problems, such as parenting, property settlement, child support, child protection, housing, social security, immigration and debt. Victims of domestic violence are particularly vulnerable and often have complex legal and non-legal needs. At least 60 per cent of Legal Aid NSW family law work and 10 per cent of civil law work is related to domestic violence. Recognising the demand for high quality, flexible and holistic legal service delivery, the aim of the recently established
We specialise in agency appearances for all Sydney CBD courts and tribunals To obtain our services or for more information call (02) 9239 0555 or visit www.sydneymentions.com.au No time for city court appearances? “Don’t mention it...we will.”
That’s roughly how long we have spent perfecting the art of legal costing…give or take the odd hour or two…some days it feels like more Save yourself time and reap the benefits of our extensive experience while you focus on your practice
Sydney: Level 1, 39 East Esplanade Manly NSW 2095 DX: 9203 Manly E: firstname.lastname@example.org P: (02) 9977 9200 www.dgt.com.au
Suite 501, Level 5, 265 Castlereagh St, Sydney NSW 2000 DX 1084 Sydney
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Cross-examination Test your legal knowledge ...
1. Which Australian politician was caught texting on his phone while driving in December? 2. Name the traditional “big six” commercial law firms in Australia (using their current titles). 3. By what percentage must the Chinese stock market rise or fall in the same session to trigger the circuit breaker mechanism that shuts down trading for the day? 4. 5. Recently returning a guilty verdict regarding the use of illicit substances by a number of Essendon AFL players, what is the highest international appeal court in sporting law? 6. Where is the court in question five based? 7. Which section of the Evidence Act 1995 (NSW) requires that evidence in court must be relevant? 8. In NSW, is it legal to film a police officer who is writing you a fine? 9. What kind of relationship is attributed the same legal rights and liabilities as marriage? 10. Under road laws in NSW, how much space must a motor vehicle driver leave between their vehicle and a cyclist, when travelling at 60km/h or less? Answers on page 65. Name the Mexican drug lord who was recaptured recently in the US after escaping from prison in July.
TOUGHYOUNGLAWYERS GETDOWNAND(VERY)DIRTY Six determined NSW Young Lawyers took on the infamous Tough Mudder obstacle course in Glenworth Valley on the Central Coast on the last weekend of November. The team, Pawel Kulisiewicz, Rachel Saunders, David Porter, Liesel von Molendorff, Thomas Spohr and Jenny Windsor, ploughed through 20 kilometres of thick scrub, winding trails and neck-deep mud before meeting the final notorious obstacle of the competition – a whopping 10,000 volts of “electroshock therapy”. The well-drilled team had trained for months (some more intermittently than others) in preparation for the event. In the end, determination and team work helped the Young Lawyers conquer the course and become recognised as official Tough Mudders.
On 30 November 2015, the Council of the Law Society resolved to immediately suspend the practising certificate of Karen Eve McGlinchey under s.77 of the Legal Profession Uniform Law (NSW). On 10 December 2015, the Law Society Council resolved pursuant to s.82(1) (c) of the Legal Profession Uniform Law (NSW), to suspend to 30 June 2016 the practising certificate of Karen Eve McGlinchey. On 30 November 2015, by resolution of the Council pursuant to s.334 of the Legal Profession Uniform Law (NSW), Richard Stephen Savage, Solicitor, was appointed as Manager of the law practice known as McGlinchey & Associates for a period of two years.
On 15 December 2015, Law Society Council resolved to immediately suspend the practising certificate of Gary Alan White under s.77of the Legal Profession Uniform Law (NSW). On 15 December 2015, by resolution of the Council pursuant to s.327(2)(b) (ii) of the Legal Profession Uniform Law (NSW), Richard Stephen Savage, Solicitor, was appointed as Manager of the law practice known as White Lawyers for a period of two years. On 7 January 2016, by resolution of the Council pursuant s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Gerard Flynn, Solicitor, was appointed as Manager of the law practice known as United Lawyers & Consultants for a period of two years.
On 30 November 2015, by resolution of the Council pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Gerard Flynn, Solicitor, was appointed as Manager of the law practice known as Machiao Lawyers for a period of two years. On 30 November 2015, the Law Society Council resolved under s.77 of the Legal Profession Uniform Law (NSW), to immediately suspend the practising certificate of Ken Chi Kin Ma. On 10 December 2015, the Law Society Council resolved pursuant to s.82(1) of the Legal Profession Uniform Law (NSW), to suspend to 30 June 2016 the practising certificate of Ken Chi Kin Ma.
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ALLISON STANFIELD DIRECTOR OF NEW BUSINESS, E.LAW
Allison Stanfield, 46, worked as a litigation lawyer and Registrar of the Court of Appeal in Queensland before founding Australia’s first digital management company, e.law, in 1979. She is undertaking a PhD in the authentication of electronic evidence.
How can technology expedite and improve legal processes?
NSWAttorney-General Gabrielle Upton said that online processes are not appropriate in certain criminal cases – do you agree? Certainly, if you have a matter where a witness needs to give testimonial, or the judge needs to ask questions before making a decision, then it is more appropriate and probably more efficient for the party to appear before the judge in person so those questions can be asked. Disputes over the credibility of a witness, for example, can’t be made online using technological processes. Having said that, simple interlocutory matters could be processed more efficiently with the assistance of technology. Let’s say two parties are having a dispute over what documents should be discovered – a judge could make a decision on the papers in that situation and it could all be done online. It needs to start with law schools. Law schools need to provide information and training on legal technologies at an undergraduate level. Students can use online court technology, but they are never taught how. The College of Law offers some training in particular subjects, but no one really says “These are the skills you should have when you leave here, including how to use the basic legal technology that is available”. How could we better use the technology that is available?
Technology can benefit lawyers in a number of ways through the power that electronic evidence brings. Instead of having all documents printed and having to flick through every page, search engines enable lawyers to quickly locate and find what they are looking for. We can mark-up documents so everyone is on the same page, and everyone can see what changes have been made. In litigation there are support systems that help lawyers better manage discoveries and exchange evidence with both sides, which ultimately makes the process of preparing and presenting evidence easier. What are the negative aspects of current court technology? The downfall of our current legal technology is that it’s still not easy for lawyers to transact and file court documents. Perhaps some of the technology solutions that have been put forward by IT departments have been undertaken by people who don’t really understand court processes, because there’s a real disconnect. Some lawyers, particularly older generations, are also reticent to take up new technologies because of the ingrained paper-based culture they have learnt to work with. There are no training or education systems so it can be hard for new technologies to gain traction against this culture.
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mind your ethics
Employment discrimination The Human Rights Committee and the For the full round-up of Law Society advocacy, see pages 68-70. What the committees are advocating this month ... LAW Reform
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
ATOPNEWYEAR’SRESOLUTION BY LINDEN BARNES, SENIOR ETHICS SOLICITOR, THE LAW SOCIETY OF NSW B y the time you read this column, 2016 will already be well under way, we won’t be writing 2015 by accident any
Employment Law Committee wrote to the Law Council in relation to the Australian Human Rights Commission’s inquiry into employment discrimination against older Australians and Australians with disability. Conditions of remandprisoners The Criminal Law, Indigenous Issues and Human Rights Committees wrote to the Premier with concerns about the practice of holding individuals on remand in police and cell court complexes for extended periods of time. The committees also expressed concerned about the standards of the detention facilities, particularly in regional areas. Regulationof legal costs The Injury Compensation Committee prepared a submission to the State Insurance Regulatory Authority (SIRA) in response to a discussion paper on the regulation of legal costs for work capacity decision reviews. The committee considered that injured workers and insurers should have access to paid legal advice and assistance with respect to all review types, if required.
This might occur when there is an investigation into an alleged crime. Alternatively, we might be asked to provide statistics to an authority. While always being courteous in our response, we must ensure that we only disclose in accordance with the Rule 9 exceptions. The two exceptions most likely to be relevant are: 9.2.1 the client expressly or impliedly authorises disclosure; 9.2.2 the solicitor is permitted or is compelled by law to disclose. So, a good New Year’s resolution is complying with Rule 9. As we have to do this, it’s a little bit of a dodgy “resolution”, but at least it will outlast all the others.
more, and most of our New Year’s resolutions will be looking a little the worse for wear. So it may be an idea to make a resolution that we all have to keep anyway. The resolution is confidentiality – specifically, our obligation to keep our client’s information confidential except in very limited circumstances. The obligation is set out in Rule 9 of the Conduct Rules. While it may seem simple on paper, it is an issue that crops up regularly in practice. One example is where we are asked by a government authority to provide information.
Inter-school legal rivalries came to a fierce head at the grand final of the annual schools’ Mock Trial competition held at Sydney University on 11 December. Every year the competition, organised by the Law Society of NSW, attracts year 10 and 11 students from 170 schools. Chevalier College in the Southern Highlands faced a team from St John Paul College in Coffs Harbour in a complex criminal case regarding consorting of convicted offenders. Magistrate of the Children’s Court of NSW Elizabeth Ellis presided over the case, along with Dr Virginia Marshall and Dr Peter Hansen as acting judges. The Chevalier College team argued strongly for the prosecution and, although the defendant was deemed not guilty, Chevalier was awarded the 2015 competition prize for their excellent cross-examination and strong overall performance. Lead barrister Harry Fenton claimed the Sydney University Best Advocacy Prize for his exceptional address and closing speech to the jury.
Mock trial finalists from Chevalier College and St John Paul College.
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