LSJ – February 2017

ISSUE 30 FEBRUARY 2017

ABSOLUTELY (F)LAWLESS

HOW FIVE LAWGRADUATES TURNED THEIR DEGREES INTO NON-LEGAL SUCCESS STORIES

ANUNSUNGHERO MARK TEDESCHI QC TELLS THE TALE OF AN UNKNOWN LEGAL PIONEER

A FRESHPERSPECTIVEONJUSTICE MEET THE NEW LAW SOCIETY PRESIDENT WHENCHILDRENLIVE BEHINDBARS INSIDE A MOTHER’S PRISON FACILITY STARTINGTHE YEAR INACAREERRUT? HOW YOU CAN DIG YOURSELF OUT THEGREAT SECTION18CRACEDEBATE DISPELLING THE MISCONCEPTIONS

CONTENTS

24

28

FEATURES

22 GLOBALFOCUS

38 MARKTEDESCHI Jane Southward interviews NSW Senior Crown Prosecutor Mark Tedeschi about his life in the law and the subject of his latest writing project 42 CAREERCOACH Fiona Craig answers your career questions. In this issue, she tackles how to avoid falling into a career rut and suggests proactive ways to talk to your manager about making work more meaningful and enjoyable

48 ADAY INTHELIFE

There’s intense discussion over US President Donald Trump’s capacity to overturn and enact new legislation. What will he change? 24 INFOCUS New Law Society President Pauline Wright outlines her agenda for 2017 28 COVERSTORY Kate Allman reports on five people who are using their law degrees to shine in careers outside the legal profession

A woman raising her baby behind bars explains how an innovative Corrective Services program is helping her whole family 52 LIFEOUTSIDETHELAW Baker McKenzie’s David Jones shares his passon for cycling for charity 54 HEALTH Moving lunch to the top of your priority list could be your most productive action for the year, reports Lynn Elsey

ISSUE 30 I FEBRUARY 2017 I LSJ 3

38

58

REGULARS

LEGALUPDATES

56 WELLBEING The value of volunteering 57 FITNESS High Impact

8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS 16 CAREERMOVES Who moved where this month 19 EXPERTWITLESS 19 THE LSJ QUIZ 20 OUT AND ABOUT 26 HOTTOPIC Psychologist Paul Phillips argues that it’s time to dump the clinical interview 44 CAREER101 Emma Hodgman, chair of the board of DibbsBarker

68 ADVOCACY: THE LATEST IN LAW REFORM

70 HUMANRIGHTS: FREE SPEECH vs DISCRIMINATION

73 PROCEDURE: FEDERAL COURT PRACTICE CHANGES

Intensity Training 58 SINGAPORETRAVEL Discover the must-

76 RISK: CHANGES TO REAL PROPERTY LEGISLATION

78 LITIGATION: ENFORCING CONTRACTS IN CHINA

dos in this surprisingly satisfying tourist hub and tempt yourself to stay at Marina Bay Sands

80 COMPENSATION: STOLEN GENERATIONS CLAIMS

82 CRIMINAL: KEY BAIL DECISIONS OF 2016

64 LIFESTYLE

Book reviews, events and our movie giveaway

84 COSTS: MOTOR ACCIDENTS COMPENSATIONCHANGES

86 ELDERABUSE: THE LATEST ON THE ALRC INQUIRY

66 NONBILLABLES

Yarns we can’t bill for 87 LIBRARYADDITIONS 106 AVIDFORSCANDAL Have a laugh at our new column

88 IPLAW: TRADE MARKS  USE IT OR LOSE IT

90 CRIMINAL: CHILDREN & CRIMINAL RESPONSIBILITY

46 DOINGBUSINESS

Fashion and tips to beat the holiday blues

92 CASENOTES: HCA, FCA, WILLS, FAMILY & CRIMINAL

4 LSJ I ISSUE 30 I FEBRUARY 2017

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A WORD FROM THEEDITOR

Welcome to the rst edition of LSJ for the year. I hope you are feeling refreshed and ready for a 2017 lled with adventure. With a new year comes change – and you will notice some changes within our pages. Firstly, we are thrilled to introduce the hugely talented cartoonist Rocco Fazzari as a regular LSJ contributor. Many of you will recognise Fazzari’s illustrations from the pages of e Sydney Morning Herald , where he drew cartoons for 28 years. We are lucky enough to have him depicting a “legal legend” for us each month. Check out page 13 to see who is rst o the blocks.

ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor

Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer

Secondly, we are excited to launch a brand new column, Avid for Scandal, on page 106. Over the years, the LSJ team has come to realise that, against the odds, many lawyers are actually quite funny. As such, we have opened this new column to the comedic writers among you. We look forward to receiving some entertaining submissions, the best of which we will publish. In this frightening new era of post-truths and fake news, it is perhaps tting that our rst submission embraces “alternative facts” to make us giggle. We look forward to another year bringing you news, knowledge, inspiration and, we hope, a laugh or two.

Lynn Elsey 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 journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Cha ey

Contributors

Paul Phillips PhD, is a registered occupational therapist, psychologist and academic. In this issue, he argues it might be time to kill oŽ the clinical interview in CTP, Workcover or personal injury cases. Hot topic p26

Rocco Fazzari uses a range of mediums to create his imagery. For 29 years his illustrations were published in Fairfax newspapers while his paintings have featured in many art galleries. He joins the LSJ as a regular this issue. Legal legends p13

Lynn Elsey has been a writer for more than 20 years. US-born, she has lived in the United Kingdom and Australia and joined the LSJ as Senior Writer last year. In this issue, she reports on how US president Donald Trump could shake things up. Global focus p22

Maithri Panagoda AM is a partner at Carroll & O’Dea Lawyers. He writes about new and alternative schemes in NSW to compensate members of the Stolen Generation. Victims compensation p80

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 journal@lawsociety.com.au. 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.

Cover photograph: Jason McCormack

NEXT ISSUE: 1 MARCH 2017

6 LSJ I ISSUE 30 I FEBRUARY 2017

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ISSUE 30 I FEBRUARY 2017 I LSJ 7

President’smessage

W elcome back! I want to start by saying how honoured I am to be serving as your President for 2017. We have a full program of activities planned for the year; a key focus will be hearing directly from the legal profession. With this in mind, I already have a busy schedule of visits to the regions planned, and I will be attending all ve of our regular meetings with the Suburban and Regional Law Society Presidents.

With the addition of Public Law and Privacy and Communications committees, our law reform and advocacy work has been strengthened for 2017. Advocating for positive changes in the law that bene t the entire community is a vital part of the Law Society’s work. I will be taking a keen interest in the work of all 26 of the Society’s standing committees, as well as chairing

the Public Law and Environmental Law and Planning committees. I wish to thank those who have taken up committee membership for 2017. e work of our committees is vital, building collegiality within the profession and enabling the Society to meet its statutory duties and perform as a major player in law reform and policy debates. For further information on the roles and priorities of the committees, see the 2017 Committees List at lawsociety.com.au/about/organisation/committees/Currentcommitteeslist/index.htm. Finding a solution to the appalling rates of Indigenous poverty and incarceration must be a priority for all Australians if we hope to be a progressive and inclusive society in the future. Indigenous imprisonment rates are about 12 times those of the rest of the Australian population, and, worryingly, rates of over-representation are even higher in juvenile detention. With strong role models and a sustainable basis for cultural development and education, many Indigenous and non-Indigenous organisations are helping keep Indigenous youth out of the criminal justice system. As many of you know, each year the President has the opportunity to nominate a charity that the Society will put its weight behind. e Bara Barang Corporation Ltd is my chosen charity for the year. is is a group of seven organisations that have joined together with the aim of developing and executing key initiatives that will improve the lives of Indigenous people on the Central Coast. Bara Barang also works with young Indigenous people to encourage connection with culture and community and has developed innovative cultural programs that focus on youth in juvenile detention. We will be nding creative ways to support and raise funds for Bara Barang throughout the year. To nd out more go to barabarang.com.au. Finally, I had the opportunity last month to sit down with LSJ editor Claire Cha ey to outline in more detail my legal career and some of my key agenda items for the year. You can read this article on page 24. I will also be putting more meat on the bones in forthcoming LSJ President’s Messages, Monday Briefs, and in my Opening of Law Term Presidential Address, which will be available online soon.

PaulineWright

8 LSJ I ISSUE 30 I FEBRUARY 2017

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ISSUE 30 I FEBRUARY 2017 I LSJ 9

Mailbag

LETTERS TO THE EDITOR

Review of Articles I agree completely with Simon Munslow’s letter ( LSJ

Ice-breaking The article on Judge Scarlett’s career (LSJ Nov) contained a telling comment: “Usually you can get along a lot better with your colleagues if you are polite to them.” How’s this for an idea: at the start of a contentious matter, e.g. a family law property dispute, the lawyers for both sides could meet for a coŸee (where feasible), just to “break the ice”. In my experience, the wrong tone can be set in a brusque initial email exchange or a terse phone call. The lawyers’ egos intervene and the temperature of the matter rises, to the detriment of the parties. I don’t think our client duty will be prejudiced if at the outset we agree to treat each other properly, in working towards a satisfactory outcome for both parties. David Grinston, Crows Nest women to senior counsel this year has received praise and a nod towards greater gender equality at the Bar. However, this fact stands with the 12 men who were also appointed – four times the number of female silks. While all progress is important and this is certainly a cause to celebrate, in the past 20 years the number of female barristers has increased only a meagre 4 per cent to finally break 20 per cent. We would like to highlight some views about gender and the law to emphasise that we are still far from gender parity. Women must overcome multiple barriers before our Gender equality The appointment of three

in 1970/1. In the June 2015 LSJ , the figures quoted as to areas of practice were city 49.9 per cent, suburban 33.1 per cent and country 12.4 per cent, the remaining percentage being, no doubt, government or corporate etc. While I am not suggesting that these percentages should be reflected in the Law Society’s Articles as to representation on the Council, surely they should bear some resemblance to them. I agree with the comments of Simon Munslow as to cities such as Wollongong and Newcastle being “satellite cities of Sydney”. However, might I suggest that Wollongong, coupled with the Illawarra area, and a Greater Newcastle area should be individually represented on the Council. I also agree with his comment that the Macarthur and Central coast areas are “outer suburbia” but would extend that description to many other areas within what is now, the vast Sydney government and corporate solicitors need representation and a voice, small as it may be, on the Council. Let it be remembered, it is the “Law Society of NSW” and should cover all solicitors in this State. It certainly appears it is time for this representation to be looked at and the Society’s Articles amended to better reflect the current position. Hopefully, this is achieved in a much shorter time and without the campaign that was necessary to obtain accreditation for suburban Law Societies. Denis Solari, retired solicitor spread, and could all be classified as “suburban”. City, country, suburban,

ISSUE29 DECEMBER2016 LSJ12_Cover_spine_December_Bishop.indd 1

ISSUE29 DECEMBER2016

Nov) in calling for a review of the Law Society Articles but, not only as suggested by him, but also as to the basis of representation on the Law Society Council. The last time this position was substantially reviewed was, to my knowledge, in 1970 followed by the adoption of amendments to the Articles at the Law Society AGM held on 28 October 1971 when Suburban Law Societies were recognised and granted representation on the Council. All of this occurred after solicitors in the St George and Sutherland areas met in May 1964 and then adopted a constitution at an inaugural meeting on 30 July 1964 of what became the St George- Suburban Law Society in NSW. At that particular time, if you did not have an o‘ce within two miles of the General Post O‘ce, Sydney, you were classified as a Country Solicitor. However, the Country Regional Societies’ areas did not cover suburban areas except for Parramatta. It was then a Country Regional Society but upon the recognition of Suburban Law Societies, it became a Suburban Law Society. In serving for many years as a member of the Committee of the St George-Sutherland District Law Society from inception and as its second president, I can assure readers, recognition was only after many years of representations to the Council before finally succeeding Sutherland District Law Society and then the first

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WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WINLUNCHFORFOUR at the Law Society dining room. E: letters@lawsociety.com.au Please note: we may not be able to publish all letters received. CONGRATULATIONS! Denis Solari has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

skills and capabilities are even recognised. We are

10 LSJ I ISSUE 30 I FEBRUARY 2017

requires a social and cultural shift from both men and women. Sydney University Law Society Women’s Committee Bemusing I am bemused at Thomas Spohr’s whimsical article about not standing in court ( LSJ Dec). Mr Spohr’s list of those people most likely to not stand in court is remarkable in that it does not include that category of persons who are most likely to not stand in court: Muslims. Perhaps Mr Spohr has not been following the latest incident of what appears to be a policy by some members of the Islamic community to with- hold respect from Australian courts by not standing. Moutia Elzahed, the wife of convicted terrorist recruiter Hamdi Alqudsi, has been told by Judge Audrey Bella she will be charged for each incident of disrespect to the court. It is doubtful Ms Elzahed falls into Mr Spohr’s general category of not being all there. The reason Ms Elzahed does not respect the court is slightly more serious than the various possible reasons rattled oŠ by Mr Spohr. That reason is Sharia Law. Sharia Law and its compatibility with Western legal systems, which are predicated on such fundamental principles as separation of Church and State, equality of rights and consistency and impartiality of process, deserves a more

paradoxically criticised for being too soft yet in the alternate also for being too aggressive and career-driven. In negotiations, a firm female lawyer will be described as abrasive when her male peer is assertive. A working mother is held to higher standards than a working father and she must work harder to justify her part-time work arrangements as though the primary caregiver and homemaker roles she assumes are without value. The idea that success in the profession depends on years of uninterrupted work ignores the unalterable biological truth that childbirth is part of female human life. It leads to the unnatural conclusion that a successful woman should not have children, or that if she does, she is actively choosing to sacrifice a career. The fact that such views are still unashamedly expressed today strongly suggests that strategies such as briefing quotas and targets are essential. We understand that they are imperfect solutions but there is no quick and easy way to rectify the gender imbalance in the legal profession. As young women entering the legal profession, we strongly advocate for formal and informal women’s mentoring and networking events. This is not because we want a de facto women’s club, but because women need role models and leaders to aspire towards. More discussion and education of the struggles women face needs to exist to inform aspiring young women, but also men. Ultimately, creating gender equality in the profession

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ISSUE 30 I FEBRUARY 2017 I LSJ 11

Briefs NEWS

Community legal centres teeter as fundingcuts loom

Australia turn away more than 160,000 clients each year under current funding arrangements, and a 2016 report by the Productivity Commission on Access to Justice Arrangements found that legal assistance services were underfunded by a staggering $200 million. NSW Attorney-General Gabrielle Upton said the NSW Government was strongly opposed to the cuts and had urged Federal Attorney-General George Brandis to reconsider. “I have strongly opposed the Commonwealth’s cuts since becoming NSW Attorney-General almost two years ago,” Upton said. “I have also raised my concerns personally with the Federal Attorney-General George Brandis on a number of occasions.” The Federal Attorney-General George Brandis told LSJ he believed the federal funding ošered by the National Partnership Agreement was generous enough in Australia’s current “resource- constrained environment”. “Funding for community legal centres is not a matter for the Australian Government alone,” Brandis said. “Under the National Partnership Agreement on Legal Assistance Services 2015-2020, state and territory governments are responsible for allocating Australian Government funding for community legal centres, alongside state funding contributions.” Law firms around Australia have joined the fight for CLCs, pleading with the Federal Government in open letters to the Attorneys-General in all State and Commonwealth governments. Ten pro bono practice leaders from Australia’s top-tier firms penned a letter in June and 18 partners from mid-tier firms followed in the same vein in December, writing that the impending cuts “present serious risks” to the legal assistance centre as well as the ability for Australian law firms to deliver pro bono legal services.

BY KATE ALLMAN

With just fivemonths to go before $12 million in funding cuts hit community legal centres (CLCs) nationwide, community lawyers in NSWnow have a better idea of how the funding cuts are likely to a‚ect particular centres. When the cuts were announced in 2015, Legal Aid NSW was given the di cult task of distributing the reduced funding among already under-funded CLCs, based on the number of disadvantaged clients in their catchment areas. Interim Executive Director of CLCNSW Polly Porteous said it’s a case of taking from the poor and giving to the even poorer. “Many CLCs are barely staying afloat on the current levels of government funding,” Porteous said. “However, if you look at the sheer numbers of socially disadvantaged people in certain catchment areas, CLCs in Western Sydney, the Illawarra and Central Coast are servicing greater numbers than the Sydney city centres like Kingsford Legal Centre, the Inner City Legal Centre and Redfern Legal Centre. “The regional centres are going to be allocated more funding than the city legal centres, but all centres are going to be hit with pretty devastating cuts.” Funding for regional centres such as the Elizabeth Evatt Community Legal Centre in the Blue Mountains and the Illawarra and Northern Rivers legal centres will drop by 20 per cent, while Sydney centres are bracing for budget cuts closer to 30 per cent. Commonwealth funding for CLCs will drop by more than 30 per cent nationally from 1 July under the new National Partnership Agreement for Legal Assistance negotiated between the Commonwealth and State governments in 2015. Of this, CLCs in NSW will lose $2.9 million annually.

“Centres will have to decide who’s in the firing line, how many services will get the chop, which services will have to notify their clients that the service will be winding down and unavailable from 1 July,” Porteous said. Arlia Fleming, Managing Principal Solicitor at Elizabeth Evatt CLC, said the reduced funding meant her centre would need to lay oš one and a half full-time lawyer roles, from an existing four. “The work we do assisting disadvantaged people in domestic violence matters, family law, property and tenancy law actually saves the government money in areas like healthcare, the courts and prisons,” Fleming said. “Cutting funding for services that help vulnerable people to avoid the court system and prison just doesn’t make sense.” According to the CLCNSW 2015 annual report, 57 per cent of CLC clients in NSW reported no or low income (annual income of less than $26,000), 17 per cent identified as having a disability and 6 per cent were Aboriginal or Torres Strait Islanders. The National Association of Community Legal Centres said CLCs in The team at Illawarra Legal Centre in Shellharbour (pictured) are bracing for Federal funding cuts of 21 per cent, which will be worth $165,000 each year.

12 LSJ I ISSUE 30 I FEBRUARY 2017

NEWS

Legal legends

NEWTHISMONTH WOMEN’SJUSTICE NETWORK WIPAN, theWomen inPrisonAdvocacy Network, will relaunch as theWomen’s JusticeNetwork inMarch. Chief Executive O cer Lana Sandas said the organisation would rebrand to make clear the organisation’s belief that most women in custody should be living in the community, not in prison. “Diversion is the key, not incarceration,” Sandas said. “Most female prisoners come from deeply disadvantaged backgrounds and about 78 per cent report a history of childhood and adult sexual, emotional or physical abuse. “Sixty per cent of female prisoners are the primary carers of their children and almost two-thirds are sentenced for minor o‚ences and serve fewer than six months in custody. Yet the emotional, social and economic costs for mothers, children and families can be extensive.” The Women’s Justice Network will also launch a youth program for at-risk teens this year. Visit wipan.net.au for more details. ADVANCEMENTOF WOMENCHARTER SUCCESS More than 124 law firms and government departments have signed the Law Society’s Advancement of Women Charter since its launch late last year. The charter is designed to promote and support strategies to retain women in the profession over the course of their careers and encourage and promote their career progression into senior executive and management positions. Visit lawsociety.com.au/ForSolictors/ AdvancementofWomen/Charter to find out more.

by

Susan Kiefel Chief Justice of the High Court of Australia and first woman to ever hold the position Lawyers may generally be said to be necessary to the working of the law in all its respects. But it is only the ethical lawyer who is essential to a system of justice. Speech to Queensland Law Society, 2010 “

ISSUE 30 I FEBRUARY 2017 I LSJ 13

Briefs NEWS

six minutes with

clubs and two state bodies that run the game in Queensland and NSW. There’s a lot of history there and everything we do, even if it’s from a purely legal perspective, aŒects our stakeholder engagement. The other challenge is that rugby league in Australia has a fishbowl existence – it’s constantly in the media. Every decision we make as a legal team or as a business has potential ramifications in the media. Why did you apply for the BOSS Emerging Leaders MBA scholarship? I’ve been working as a lawyer for 10 years and my objective is to go on to become a CEO or COO one day. I thought I’d get more out of an MBA than a Masters of Law because you learn broader business skills such as financial modelling, marketing, managing people skills and strategic venturing. What do you thinkmakes a good business leader? I think you need to have presence and credibility. You need to take leadership by making decisions in tough situations, even if they are unpopular. Finally, you need to have the capacity to lead – which requires both a technical and a soft skill set that is learned through experience as well as by doing something like an MBA. It’s no good putting people in positions of leadership who don’t have the skills and credentials. his Higher School Certificate and start a law degree at the University of Technology Sydney. He began his legal career at Gilbert + Tobin before joining the National Rugby League (NRL) in 2013. PETER GIURISSEVICH SENIOR LEGAL COUNSEL, NATIONAL RUGBY LEAGUE Peter Giurissevich has been selected from a competitive pool of more than 80 applicants for the 2017 Australian Financial Review ’s BOSS Emerging Leaders Masters of Business Administration (MBA) Scholarship. No stranger to competition, Giurissevich grew up playing representative football at the selective Westfield Sports High School and left school when he was 16 to trial for professional football teams in Italy. When he missed out on a place in the senior league, he returned to Australia at 18 to complete

What did two years playing semi-professional football in Italy teach you? First of all, I learned the language. It took me seven or eight months to learn Italian fluently and I’m still fluent in it now – written and spoken. Secondly, I learned a lot about relationships and working with people. Sport is almost a metaphor for life in that you’re working in a team and dealing with relationships within the team. You have to learn to deal with the coach, with your team mates, and also external pressures in stressful situations. What does an average day look like as a lawyer for the NRL? I do a lot of drafting of contracts, settling transactions with the broadcasters, and rights agreements. Contractual questions come up every day around TV scheduling, time slots and sponsorships. There’s also the odd defamation piece in the media. The diversity of my job is what makes the role so interesting. You are eŒectively a service provider for the business and you have the opportunity to tap into all diŒerent areas of the business. What are the challenges? The NRL is quite a political environment, which can present challenges. We have really complex relationships with our members and the 16 NRL

14 LSJ I ISSUE 30 I FEBRUARY 2017

NEWS

mind your ethics

Q&A WITH LINDEN BARNES , ETHICS OFFICE

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Q: I run a busy practice in Sydney’s west and last week a new client walked in the door, very angry with her former solicitor. The client did not have the file and said she would not pay the bill. What do I do? A: First, do not denigrate the other solicitor. It may be their fault. It may be a di cult, unrealistic client. Either way, the appropriate approach is to focus on the legal issues, including obtaining the file if needed. Second, contact the other solicitor. Under Conduct Rule 14, they must hand over the file unless they have a lien (Conduct Rule 15). The Ethics Committee recently has released a new FAQ on how to avoid subverting another solicitor’s lien. Try these tips: 1. The new solicitor should first discuss the matter with the old solicitor. 2. If the tripartite agreement is available, the new solicitor should make no alternative attempts to obtain the file unless the old solicitor refuses to enter into the agreement. The committee notes that it may not be available where, for instance, the new solicitor is prohibited by law to enter into the agreement (such as the Legal Aid Commission), or it does not provide reasonable security. 3. Disbursements should generally be reimbursed to the old solicitor irrespective of the payment of legal fees. The committee notes that this is covered by the tripartite agreement. 4. It is not appropriate to subpoena the file of the old solicitor to circumvent a lien. 5. A solicitor should not attempt to undermine the valid lien of another solicitor in any circumstance. 6. If the old solicitor refuses to enter into a tripartite agreement when it is available, the new solicitor may seek documents from an insurer, prosecutor or the court when that action is in the client’s best interests.

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ISSUE 30 I FEBRUARY 2017 I LSJ 15

Briefs NEWS

CAREERS NEWWEBPORTAL TRANSFORMS JOBSEARCH The Law Society of NSW has launched a new website to help law students and graduates find employment in the competitive legal market. LegalVitae launched on 30 January and aims to connect legal job-seekers with employment opportunities in private practice law firms, in-house roles, government and public interest organisations as well as non-legal opportunities across Australia. The website is the first law-exclusive portal of its kind in Australia and provides an easy-to-use platform through which law graduates can apply for a range of positions. Job-seekers can also create personal profiles and set up email alerts for employers to notify them when suitable jobs become available. “This portal represents an innovative step forward for graduates and employers alike in what can often be a fragmented market,” said Law Society Chief Executive Oœcer Michael Tidball. According to a survey by the Australian Council of Law Deans, 7,583 law students graduated in 2015. However, data from The Australian Financial Review ’s Law Partnership Survey found that just 875 graduate positions were o¤ered by the largest 42 law firms in Australia in 2016. The Law Society hopes LegalVitae will help graduates to explore the many opportunities available to them, rather than focus on these highly competitive positions. departments and key social justice organisations around Australia have already signed up to the site. The “Big Six” of Australian law firms, including Allens, Ashurst, Clayton Utz, Herbert Smith Freehills, King & Wood Mallesons and MinterEllison are also on board. legalvitae.com.au More than 60 large corporate organisations, government

LEIGHADAMS Joined as Accredited Specialist Business Law Owen Hodge Lawyers

KATEWILLIAMS Promoted to Practice Group Leader, Medical Law team Slater & Gordon, Sydney

MAXWILLIAMS Joined as Associate HPL Lawyers, Freshwater

FIONACROSBIE Appointed to Chairman Allens

CHRISTOPHER AYLWARD Joined as Partner, Banking & Finance Madison Marcus Law Firm

STEPHENJENKINS Joined as Partner, Intellectual Property Madison Marcus Law Firm

ANTHONYURSINO Appointed to Senior Legal Counsel, Australia & New Zealand Danone

CHINGPHANG Joined as Principal JC Legal Practice

NICOLECERISOLA Promoted to Special Counsel Meridian Lawyers, Sydney

HANNAHSHIEL Promoted to Associate Meridian Lawyers, Sydney

BENMALONE Promoted to Senior Associate Massons

IGORKAZAGRANDI Now the Principal BMA House Lawyers, Sydney

Know someone with a new position? Email us the details and a photograph (at least 1MB) at: lsj@lawsociety.com.au

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We don’t want other families to suffer

MOCKTRIAL STGREGORY’SCOLLEGE WINSMOCKTRIAL

PHOTO: JASON McCORMACK

When my mum died from breast cancer, I knew that I didn’t want other families to suffer the same tragic loss. That’s why our family supports the Walter and Eliza Hall Institute of Medical Research. When we met the scientists at the Walter and Eliza Hall Institute, we were inspired by their passionate commitment to finding better treatments for patients. You can be assured that donations and bequests to the Walter and Eliza Hall Institute support the best research into cancer, infectious diseases and immune disorders.

– Eleni Horbury with her daughter Sophie, and cancer researcher Dr Anne Rios.

After a year of tough competition between 164 high schools in NSW, St Gregory’s College in Campbelltown has taken home the trophy in the grand final of the Law Society’s 2016 Mock Trial competition. The grand final was held in December in the Moot Courtroom at Sydney University law school. It involved a criminal case in which the defendant took and drove a vehicle without the owner’s consent. St Gregory’s College, acting as prosecution, successfully proved each element of the o”ence beyond reasonable doubt to win over the runners- up from Green Point Christian College on the Central Coast. Sean Mabin from St Gregory’s College was awarded the Sydney University Best Advocacy Prize for his role as a barrister on the prosecution team. The grand final judges, Magistrate Elizabeth Ellis, Dr Virginia Marshall and Ellen McKenzie, said the final two schools were the best they had seen all year and deserved their places in the grand final. Round one of the upcoming 2017 mock trial competition will run from Monday 6 March to Friday 17 March. You can register a team of Year 11 and 12 students via the Law Society website, lawsociety. com.au/ForSolictors/practisinglawinnsw/ formsdirectory/578836

For more information please contact Ms Susanne Williamson, Head of Fundraising, on 9345 2962 or williamson.s@wehi.edu.au W wehi.edu.au

CANCER | I MMUNE D I SORDERS | I NFECT I OUS D I SEASE

ISSUE 30 I FEBRUARY 2017 I LSJ 17

Briefs NEWS

FAREWELL CHARLESCAWLEYRETIRES One of the Law Society’s long-standing stalwarts, Charles Cawley, has retired. Cawley, pictured left, has served as Secretary of the Law Society for the past 20 years, where he was responsible for ensuring that the Society and its group of companies complied with requirements of the Corporations Act and other company-related laws.

For the full round-up of Law Society advocacy, see page 68.

During his 37 years with the Law Society, Cawley held a number of senior management positions, including managing the provision of legal advice to the public, policy development, practice advice to legal practitioners and foreign lawyers and committee administration as well as overseeing complex litigation on behalf of the Law Society. As Director of Statutory Responsibilities at the Society, Cawley performed a broad range of functions related to regulation of the legal profession. He is regarded as an authority on legal profession regulatory matters locally and internationally. Cawley represented the Law Society and the Law Council of Australia as a member of numerous state and commonwealth advisory committees. He received an LLB from the University of Sydney and was admitted as a solicitor of the Supreme Court of NSW in 1977. He continues to serve as a long-standing member of the Legal Profession Admission Board. Lorraine Hall has been named as the new Secretary of the Law Society of NSW.

Insurer Profit inCompulsory ThirdParty (CTP)Motor Vehicle Insurance The Injury Compensation Committee provided a joint submission with the NSW Bar Association and the Australian Lawyers Alliance in response to the Government’s discussion paper on reforming insurer profit in CTP motor vehicle insurance. The legal profession strongly supported e orts to rein in excessive insurer profits. The submission included supporting enhanced regulatory powers for the State Insurance Regulatory Authority (SIRA), a cap on insurer acquisitions and operating expenses and a ban on the payment of commission or “business support” payments related to any CTP insurance policy. Statutory reviewof NSW “one punch” laws The Criminal Law, Human Rights and Indigenous Issues committees made a joint submission to the Department of Justice’s statutory review of sections 25A and 25B of the Crimes Act 1900 , otherwise known as the “one punch” reforms, noting the Society’s opposition to mandatory minimum sentencing. Communications in the online court environment The Litigation Law and Practice Committee wrote to the Law Council regarding a query from a NSW solicitor who was concerned about the way rule 22 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (relating to communication with opponents and the court) applies in the online court environment and requested the Council consider amending the rule to accommodate the online court environment or provide additional guidance.

BRUCEMILES FOUNDATION SCHOLARSHIPS Four Indigenous law students have been awarded textbook scholarships by the Bruce Miles Foundation to encourage their continuing academic success at law school.

Each year the foundation, a charity named after the esteemed NSW solicitor who worked at Redfern’s Aboriginal Legal Service, o ers scholarships to Indigenous university students who have demonstrated academic excellence. Mallary Welch, Daniel Cahill, Lorraine Dawson (pictured) and Eliza McCabe (absent) were awarded the 2017 scholarships.

PROFESSIONALNOTICES

On 15 December 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, Solicitor, as Manager of the law practice known as Johnston Vaughan for a period of one year from 15 December 2016. On 15 December 2016 and pursuant to s.82(1)(c) of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to suspend the practising certificate of Chona Encarnacion Castillo Davidson till 30 June 2017. On 15 December 2016 and pursuant to s.327(2)(b)(iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as Manager of the law practice known as Melanie Tilbrook for a period of two years.

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NEWS

Cross-examination Test your legal knowledge ...

Crabby day at theo ce

1. Under the Drug Misuse and Tra cking Act (NSW) , three grams of cocaine or more is considered a “tra ckable quantity”. What is the threshold tra ckable quantity for cannabis leaf? 2. In 2016, the University of NSW introduced a new admission test for students to gain entry into undergraduate law programs. What is the name of this test? 3. What is the di„erence between a deed and a contractual agreement? 4. In January, the European arm of a top-tier multinational law firm went into administration in London. Which firm? vehicles (UAVs) more commonly known as? (Hint: In 2016 a Victorian man used one to pick up a sausage from a Bunnings barbeque.) 6. What is the maximum altitude you can fly a recreational UAV at, without needing approval from Australia’s Civil Aviation Safety Authority? 7. In the famous tort law case of Donoghue v Stevenson , the plainti„, Donoghue, drank a bottle of ginger beer infested with the decomposed remains of what? 8. What is the maximum volume of liquid, aerosol or gel you can carry onto an international flight from Australia? appointed Australian High Court judge? (Hint: see page 13.) 10. Which two Australian animals stand either side of the Commonwealth coat of arms? 9. Name the most recently 5. What are unmanned aerial

Employees at Sydney law firmKemp Strang su ered a communally crabby day at work when their o ce was overrun by livemud crabs over the Christmas season. According to RollOnFriday , a partner purchased the mud crabs and stored them in the o ce kitchen for consumption at a Christmas party. Perhaps unsurprisingly, the cheeky crustaceans escaped, and terrified sta„ found the

creatures scuttling around the kitchen. An email was circulated to all sta„, calling for “whoever purchased the crabs to return to the level 16 kitchen to capture them”. The LSJ put the pinch on a number of employees at Kemp Strang, asking for confirmation or denial of the story. Our questions were met with chuckles. No one in the firm denied the crabby misadventure. SpudKing fries again TheWest Australian has reported that theWest Australian Government has launched a fresh legal action against Perth potato grower and self-proclaimed “Spud King” Tony Galati. Galati had been wedged in a 20-year legal battle with the state’s archaic potato regulator, the Potato Marketing Corporation (PMC). When the PMC was dismantled at the end of 2016, it was widely assumed Galati had won his battle to deregulate the potato industry. However, in January the WA Department of Agriculture and Food lodged a new legal action in the Supreme Court, revealing the state’s intention to claim damages for three alleged breaches of an agreement over potato quotas by Galati in 2015 and 2016. The Spud King said he would continue “fighting these bastards”. Keep your eyes peeled for updates. Shockingparty game A drunken game of truth or dare between two police o cers turned electric when the pair thought it would be fun to introduce a taser, Ten Eyewitness News has reported. The constables from Atherton in far north Queensland were drinking at a party before they decided to spark up the entertainment. They allegedly left to retrieve a police-issue Taser from their station’s weapons storage safe. Upon returning, they began shocking each other as part of a “truth or dare-style game”. A taser is classed as a Category-R weapon in Queensland and unlawful possession of it carries a maximum penalty of seven years’ jail. Machine guns, grenades and rocket launchers are also classed in Category R. The o cers have been stood down while an internal investigation is conducted. Charges have not yet been laid.

Answers on page 65.

ISSUE 30 I FEBRUARY 2017 I LSJ 19

Briefs OUT AND ABOUT

NEWSPECIALISTS CELEBRATE ACHIEVEMENTS More than 60 newly-accredited specialists and their guests gathered at the Law Society of NSW in December to celebrate their achievement of gaining Specialist Accreditation in 2016. PHOTOGRAPHHY: JASON McCORMACK

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Justine’s Granddaughter Lexy was born with a rare genetic disease. It was so rare that doctors couldn’t diagnose it in time to save her life. Each year in Australia, over 600 children are diagnosed with cancer, and one in 20 is born with a birth defect or rare genetic disease. By leaving CMRI a gift in a Will, it helps the world’s best researchers save the lives of I only saw my Granddaughter once. She was 3 days old. I was planning her funeral. I couldn’t give Lexy a gift. But I can leave her a legacy. Justine. Age 57

Australia’s precious children. A legacy of love is a legacy that can save lives.

For more information call us on 1800 436 437, email bequests@cmri.org.au or visit www.cmri.org.au/legacy

Diploma in Law program

Law Study & MCLE

The NSW Legal Profession Administration Board’s Diploma in Law program is a pathway to legal practice, and also offers single unit enrolment in certain subjects which can satisfy MCLE requirements. It is taught by the University of Sydney’s Law Extension Committee and full access is provided to Sydney Law Library’s resources. Study is: Flexible: mid year entry, attend evening lectures and/or weekend schools on campus. Affordable: the fee for each subject is currently $825 and one subject would easily meet the 10 hours per year MCLE requirement. Apply by 1 September for Summer semester or by 1 March for Winter semester Subjects include:

• Insolvency • Conveyancing • Succession • Intellectual Property

• Competition and Consumer Law • Industrial Law (Labour Law) • Family Law

For more information visit www.lpab.justice.nsw.gov.au or sydney.edu.au/law-extension-committee or phone (02) 9338 3500

Legal Profession Admission Board

16/2502 CRICOS00026A

ISSUE 30 I FEBRUARY 2017 I LSJ 21

Briefs GLOBAL FOCUS

Executive orders have the full force of the law, but not the permanence. For example, on his second day in office, Obama signed an executive order that revoked a previous order instated by George W. Bush that allowed the CIA to use waterboarding as a method of interrogation. Obama has been accused of overusing executive orders. In reality, though, he relied on two less well-known executive options for enacting policy: memorandum and actions. Executive memoranda are legally binding. They are frequently used to direct federal agencies on how to approach policy decisions, often by reinterpreting existing laws. There are no official records kept of these – presidents are required only to release and publish memoranda they feel are “relevant” in the Federal Register. A memorandum can be made into a federal regulation if it goes through a lengthy notice-and-review process. An incoming president needs to go through the same process to have it revoked. Executive actions are informal proposals or directions from the president that direct congress or the administration to act. But many carry no legal weight. If they set policy, they can be readily invalidated by the courts or undone by legislation from congress. What lies ahead? The proactive use of executive powers for key policy initiatives in recent years has been cited as both a sign of a weakening of the US presidency and an indication of the somewhat unchartered capacity for a president to make significant economic, regulatory, environmental, social and foreign policy long before facing legal opposition. Obama, for example, made robust use of these methods to pursue a wide range of issues and policies, ranging from attempting to wind back the extreme edges of gun policy to withdrawing areas of the US coast from future

Thepowers thatwill be UNITEDSTATES

Donald Trump’s surprising victory in the US presidential race has led to intense discussion over his capacity to overturn and enact new legislation, writes LYNN ELSEY.

A s the concept of Donald Trump becoming US humour to a possibility – and then reality – the focus and speculation about what he could and might want to do, and undo, became a major talking point. Fears about a president who will not play by the rules and is well known for making inflammatory and non-factual statements about crucial policy and legislation helped fuel concerns. The US governmental structure, in which laws are enacted primarily through congress and require a majority vote from both the members of the House of Representatives and the Senate, limits the capacity of any president to unilaterally enact legislation. Special powers Over the past half century, however, US presidents have been noted for exerting far more control over domestic and foreign policy than in the past through the use of so-called executive powers. president moved from being a topic of late night TV

A popular case in point is the issue of funding for overseas family-planning clinics that provide abortion services. This arrangement was repealed by Ronald Reagan, reinstated by Bill Clinton and removed by George W. Bush, only to be restored by Barack Obama, all through use of executive powers. So what exactly are these executive powers? Executive orders allow the president to order members of the executive branch to take action without going through the difficult and lengthy legislative process via legally binding directives to federal administrative agencies. Executive orders are published in the Federal Register and they can be reversed by the courts and congress. Executive orders have been used for years, from Abraham Lincoln’s “Emancipation Proclamation” to Theodore Roosevelt’s establishment of internment camps for Japanese- American citizens during World War II.

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