The science of tired Why everything you thought you knew about fatigue is wrong Embracing change The new Law Society President has her eye on legal technology Abuse in the digital age How lawyers can protect their clients from stalking in cyber space
ISSUE 52 FEBRUARY 2019
T H E innovators Meet the fresh-thinking lawyers set to shake things up in 2019
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ISSUE 52 I FEBRUARY 2019 I LSJ 2
26 Hot topic
40 Tired of waking up tired? Pilot Chris McBurnie uses science to argue that law firms must change their attitude to fatigue or suffer the consequences 46 Mindset There might actually be
51 Career coach
Australian Sex Discrimination Commissioner Kate Jenkins says there is a lack of leadership among lawyers in combatting workplace sexual harassment With State and Federal elections due before June, Law Society President Elizabeth Espinosa shares her plans for the year ahead
Perfomance coach and academic Anna Hinder joins the team with sound advice on the skills to develop to be a top performer in 2020
28 In focus
With the LAWASIA conference due in Hong Kong in November, Jane Southward rounds up the best things the city has to offer
something to the song lyrics of “Accentuate the Positive”, according to organisational psychologist Rachel Setti
30 Cover story
48 Day in the life
The LSJ team speaks to eight trailblazing lawyers who are leaning into the future with fresh ideas and fire in the belly
Melissa Coade speaks to intellectual property lawyer
Damien MacRae about using play to educate kids about melanoma
ISSUE 52 I FEBRUARY 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career matters 46 Mindset 50 Doing business 52 Life outside the law 54 Health 56 Fitness 64 Books 66 The case that changedme
82 Practicemanagement Why contingency planning is so important for sole principals 84 Employment Aftermath of the casual conundrum: ‘double dipping’ and a new era in class actions
The latest key developments in advocacy and law reform
71 Constitutional law and costs Illuminating issues of jurisdiction in the NSW costs assessment system 74 National security An analysis of the controversial laws enabling unprecedented access to encrypted data
87 Domestic violence
The legal remedies to protect your clients from technology- facilitated stalking and abuse
A look at the pros and cons of the Online Court system
Legal internships in NSW: experience or exploitation ?
91 Case notes
A wrap-up and analysis of the latest big High Court, Family, Criminal and Wills & Estates judgments
80 Cyber security
Why practices need to be proactive when outsourcing their IT services
93 Library additions 106 Avid for scandal
4 LSJ I ISSUE 52 I FEBRUARY 2019
I NFORM. ENGAGE . I NSP I RE .
The annual Future of Law and Innovation in the Profession Conference and Innovation Dinner returns in 2019 to host over 50 Australian and
international leaders in law, technology and innovation. Join us as we shine a spotlight on the changing landscape of the legal profession in Australia.
SYDNEY , AUSTRAL I A THURSDAY 25 JULY 2019
For more information on how to attend, sponsor or exhibit in the 2019 FLIP Conference and Innovation Dinner visit lawsociety.com.au/FLIPconference
ISSUE 52 I FEBRUARY 2019 I LSJ 7
A word from the editor
Welcome to the first edition of LSJ for 2019. It is such a pleasure to bring you a positive, energetic cover story to kick- off the new year, celebrating a handful of the many in our profession pushing the boundaries and challenging the status quo by thinking laterally. The pages within this publication are too few to include everyone we see as “faces to watch” in 2019, and deciding on just who to feature was a difficult
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist
task. We are, however, excited to present a diverse pool of practitioners – both present and future – who all demonstrate an ability to innovate, evolve, and offer alternatives to embedded processes, cultures, and ways of thinking. Last year, we were proud to launch LSJ Online, a beautiful, mobile-responsive website which complements the print edition you are now reading (and which is not going anywhere anytime soon!). If you haven’t already done so, I encourage you to visit lsj.com.au and tell us what you think. Finally, I would like to acknowledge the departure of our associate editor, Jane Southward, who has left LSJ to pursue new adventures. Jane’s contribution over the past five years has been enormous. We wish her all the very best in her new endeavours.
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty 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 © 2019 The 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 specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The 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.
KATE JENKINS Opinion p26 Kate is Australia’s Sex Discrimination Commissioner. She writes about why the legal profession needs to show more leadership in response to revelations emerging about sexual harassment in law.
RACHEL SETTI Mindset p46
HELEN CAMPBELL Technology & DV p87 Helen is Executive Officer of Women’s Legal Service NSW. She examines the very real issue of technology- facilitated stalking and abuse, and the harm it causes – as well as the variety of remedies now available.
ARTHURKOPSIAS National security p74 Arthur is a solicitor, NSW Police Force, and a member of the Law Society’s Privacy controversial new laws giving law enforement and security agencies new powers to access encrypted data. Law Committee. He examines the
27,501 * *AUDITED MARCH 2018 DISTRIBUTION
Rachel is is an organisational psychologist and coach.
She examines why developing an open
Thescienceoftired Whyeverything you thought you knewabout fatigue iswrong Embracingchange ThenewLawSocietyPresident hashereyeon legal technology Abuse inthedigitalage How lawyerscanprotect theirclients from stalking incyber space
mindset can be one of the most useful tools in the office for those who want to boost their performance.
T H E innovators Meetthefresh-thinking lawyerssettoshakethingsup in2019
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 LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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Cover design: Alys Martin
LSJ01_Cover_Feb2019_ApprovedConcept (V2).indd 1
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NEXT ISSUE: 1 MARCH 2019
6 LSJ I ISSUE 52 I FEBRUARY 2019
e Law Society of New South Wales Dining Room located within the landmark 170 Phillip Street building, is now taking bookings online.
Our modern Australian menu has an emphasis on fresh seasonal produce and we are fully licensed with excellent wines available by the glass. With the flexibility to book a table or book the whole venue, our centrally located restaurant is perfect for gatherings large and small.
VISIT THE DINING ROOM WEBSITE FOR RESERVATIONS AND TO VIEW OUR CURRENT MENU lawsociety.com.au/diningroom
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ISSUE 52 I FEBRUARY 2019 I LSJ 6
A s we launch into a new year and new legal term, it’s timely that I outline my key priorities as President of the Law Society for 2019. My in-depth conversation with LSJ on page 28 of this issue should provide some insight into my background and the experiences that ignited my early aspirations to become a lawyer. I am pleased to say that, more than 20 years after graduating from the University of Wollongong and becoming the first member of my family to practise as a lawyer, I am still as excited as ever about the contribution I can make to society as a member of the legal profession and in my role as President. The interview details some of the key
issues on which I intend to focus in 2019, such as highlighting the valuable role of solicitors in the profession and the community, advocating for the appointment of more solicitors to the bench, pushing for an increase in the hourly rate for legally aided work, and supporting our members in dealing with technological change within the legal profession. I will be working hard to ensure all political parties and independents respond to the key law and justice priorities set out in the Law Society’s 2019 State Election Platform. We intend to publish their responses so the legal profession and wider community are aware of their views before the 23 March election. I am also looking forward to progressing the significant achievements of my predecessor, Doug Humphreys, which have cemented our continued standing as one of the most resilient and respected legal associations internationally. Of note were his efforts in driving some key initiatives relating to the Future of Law and Innovation in the Profession (FLIP) report, which demonstrated that we are ahead of the pack in tackling this global issue. It’s clear our members are hungry for information about innovation and technology. In 2019, we will power ahead with initiatives to help solicitors meet the challenges that come with such rapid transformation, and to understand how it will affect the way they practise today and in the future. We will be rolling out more exciting FLIP initiatives, including a Regional FLIP Series in four key locations around the state, a major FLIP conference in July, the continuation of our bi-monthly FLIP inquiry series, new CPD seminars on cyber safety, and the development of online and offline technology resources for members. Finally, in choosing national domestic violence charity Our Watch as the 2019 President’s Charity, I hope members will join me in supporting this organisation’s efforts to drive change in the culture, behaviours and attitudes that underpin and create violence against women.
8 LSJ I ISSUE 52 I FEBRUARY 2019
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ISSUE 52 I FEBRUARY 2019 I LSJ 9
Reflections of an era gone by When I entered Articles
management of the firm had built up an extensive probate practice. He kept a black cape hanging behind his door and at the sni of a funeral would be o , probably to mourn only if he did not succeed in bringing back the appropriate instructions. I learnt very early that this was not a wealthy firm .On my first day, I learned my first lesson. This consisted of removing the red tape for reuse from each completed file and replacing it with string. Also, each morning I was required to deliver the mail to other firms in the city; it being cheaper to pay me than to buy the postage stamps. I was placed in the care of the junior registration clerk, Yvonne. She taught me how to spend my days filing documents in the Titles O ce and the courts. She knew every aspect of her job with but one exception: to my frustration, she had no idea why these tasks were performed. However, she taught me one valuable lesson: how to walk from our o ce in 10 Castlereagh Street to Queen’s Square without once crossing an intersection where every Friday, at that time, button sellers for charity accosted all and sundry. At a salary of only 10 shillings a week, this was invaluable information. Attendance at the law school consisted of lectures in Phillip Street before and after work. Initially, student numbers were enormous as former members of the armed forces were granted special privileges including free tertiary education and a reduced period of Articles of Clerkship. Student numbers exceeded 300 in the first year, but many ex-servicemen could not settle down to study and soon the numbers fell away. The lecturers were in the main young barristers, some of whom were not popular with the ex-servicemen but who took the job, I imagine, not only to augment their
Avitalmatteroftrust Withconfidence in lawyersata record low,howdowe recover? Triumphoveradversity A judge reflectsonwhybelieving in lostcausescanbe veryworthwhile Blowingthewhistle DoesanewBill succeed inproviding moreprotection forwhistleblowers?
ISSUE51 DECEMBER 2018
Well composed I wanted to say thank you for your recent article on Carolyn Jones, “Day in the Life”, December LSJ . I thought it was really interesting and well composed. Readers may also be interested in a project I am coordinating called Voices for Change. We are o ering support and training for a group of survivors of sexual, domestic and family violence to speak up publically about their stories. The training will be in February. Renata Field, Voices for Change Project Coordinator, Domestic Violence NSW Reunion notice In 1969, my Sydney law school class graduated. There were about 100 of us. So our group is planning a 50-year reunion in Sydney on 6 April 2019. After 50 years, the contact details of many of us have changed or been lost. Hence, I request you publish this letter and invite the members of the 50-year group to communicate with our principal organiser to confirm their interest in attending. He is John Maxwell and his email address is john@ parkerkissane.com.au. John Eades What about us? Page 57 of the December LSJ advertises corporate packages for F45 training. Unfortunately, unless you live in Sydney CBD or the nearby suburbs, you miss out. There are F45 studios in regional NSW as well. Perhaps the Law Society might consider contacting those studios to have the same discount o ered. Dannielle Ford Elephant in the room Just read your article (“For the love of animals”, November LSJ ) and found it fascinating. More of the same please. Ross Pearson
of Clerkship in 1947, the legal world di ered a good deal from the present day. One of my earliest recollections is the visit as a prerequisite, with my Master Solicitor Alan Weir, to be introduced to the prothonotary in the old Supreme Court building. As we walked along Elizabeth Street, Mr Weir said to me, “Always take Elizabeth Street whenever possible. Most solicitors have their o ces here, so you will never be run over here.” Whether he was serious or joking I have never known, but it is still my chosen route when in that part of the city. When I finished school at 16 years of age in 1946, my parents insisted I attend university, so I took a vocational guidance test with the examiner advising me that most professions were open to me – other than law. I had no particular desire to spend the rest of my life working in dentistry, which my mother was pushing, so I was in a dilemma only solved when I saw the famous film The Winslow Boy and was much taken with the barrister featured therein. So it was law for me. None of my family knew any lawyers or anything of the practice of law, but my father, thankful that I was going to do something, found an introduction to Arthur Rath, then a very junior member of the Bar (and eventually a judge of the Supreme Court). Arthur, I know not how, found Articles for me with the two-man firm of W.H. Hill & Weir, a firm founded in the previous century. Alan Weir was one of many recently returned from the war and died not long after I commenced my Articles. Mr Hill had apparently carried the firm during the war despite his advanced years, but it was really conducted by two middle-aged ladies who had no legal training whatsoever. Mr Hill, who must have been in his 80s, during the time of his
Thestories the legalprofessioncanno longer ignore
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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.
Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Bill Caldwell has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 52 I FEBRUARY 2019
income but also to ingratiate themselves with the students who would eventually become solicitors and thus a source of income at a time when members of the Bar could only be engaged through a solicitor . I came to know one of the ex-servicemen well, Dennis Needham (eventually Chief Judge in Equity) who served his one year of Articles with Hill & Weir. He was known as “Gunner”, a capacity in which he had served during the war. W.H.Hill retired and Alan Weir died while I was still in my first year of Articles and the firm was acquired by Roger Lakeman, a happy soul and a good lawyer who knew his duty to educate me in the law and did the best he could. One near disaster comes to mind. During my third year of Articles I asked him if the firm would place its name on a list kept in the divorce office of the Supreme Court of firms prepared to act for married women of little means who wished to obtain a divorce for a payment to us of only five pounds. I pointed out that with each divorce successfully obtained we would receive an order requiring the former husband to pay our full costs – “If we could find him” I left unsaid, but I am sure well understood by Roger. Eventually he agreed, but on the basis that, with the exception of the actual hearing which he would handle, all cases would be prepared by myself and Yvonne (by this time our roles had been reversed and she was now my secretary). Cases now rolled in. Apparently, most solicitors had the sense to avoid these low-paying cases with the result that two 19 year olds from our firm were conducting a substantial number of the state’s divorces. At this time, “no default divorce” was unheard of, so I received not only extensive knowledge of this aspect of the law but also, by listening
to the harrowing tales of these unfortunate women, some insight into a world previously unknown to me. One problem arose. The divorce office reported to me that the judge in divorce was concerned that he was receiving in our cases an extraordinary number of discretionary statements. This need arose, as I understand it, as the jurisdiction of our Supreme Court in Divorce originated in the English Ecclesiastical Courts, so it arrived here with some moral scruples, one of which was that the courts should be loath to assist an adulterer. Therein became the rule that each petitioner be first questioned of any such fall from grace, and if it was the case he or she then should sign a discretionary statement in the nature of a confession and explanation. The statement was then sealed in an envelope and opened by the judge at the hearing. The unfortunate law clerk interviewing the prospective petitioner was required to ask this embarrassing question. I need hardly say that as a young boy I found it difficult to address the question to middle-aged women time and time again. I reported to Roger the judge’s remarks and looked for a solution. It was readily provided: “Before asking the question, preface it by saying that if her answer to the next question is ‘Yes’ her right to divorce will be in jeopardy.” Once again Roger’s advice proved masterly. I don’t remember ever helping to prepare a discretionary statement again. And so five long years of clerkship dragged on until 5 May 1952, my admission date. It is not so much as I remember the tense atmosphere of the old Banco Court with oil paintings of former judges lining the walls and the sitting judges resplendent in full bottom wigs and scarlet gowns, but the fact that immediately after the ceremony I rushed
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ISSUE 52 I FEBRUARY 2019 I LSJ 11
my mind to come up with a solution. So, I thought I should share my thoughts with you – lucky you! Firstly, I consider that the Wall Street response as described in the SMH is the knee-jerk reaction of persons involved in some inappropriate activity who feel caught out – if you do not play along then we will take retribution and we can blame you openly for it because of #metoo being public. Secondly, I think it is wrong to discuss the issue as a male- female one. My observations and experience over many years is that it is best described as a “club” mentality. If you are not part of the club, whether your choice or theirs, whether male or female, then you do not progress. What the club is based on will vary in different situations and workplaces. It will be described in terms of fitting in with the workplace, being part of the team, etc. If you do not, then you are out whether you are male or female. In the legal profession, my observation is that the clubs are formed around drinking, sexual activity and harassment, and chasing and showing wealth and status. My experiences with the club mentality at the start of my legal career – help, or even confidentiality, from the Law Society had not been invented then – led me to set up my own firm in 1978. I did not want to treat people the way I had seen them treated in the firms I had worked for. My concern is to see the issue dealt with honestly and appropriately and even to have the Law Society lead the way. John Kabos Section 316 query I would dearly love to see a decent analysis of Section 316 of the Crimes Act using the recent charge and appeal of former Archbishop Philip Wilson as a case study. Of particular interest would be how, if at all and to what extent, political imperatives drove this particular prosecution, and the
underlying context of the rule of law. Noteworthy would be the contributions of then-PM Malcolm Turnbull and the leader of the opposition, before the court process had reached its final conclusion, urging the sacking of the defendant. And lest we forget the media and its particular love of whipping the mob into a lather while ignoring boring facts and complicated analysis. I have always admired the concept of Atticus Finch going against the mob and took it to be an inspiring representation of how the rule of law should work in actual practice. Dismayingly, I do not recall any media outlet giving any reasoned assessment of Section 316, with all of its flaws after the event. It was all “boo evil churchman, off with his head”. I would like to think LSJ would stand up for similar kinds of ideals. Of course ideals are not always going to be popular, fit with the mood of the day or, indeed, any particular or even progressive ideology. But, really, isn’t that what the practice of law should be about? Now I know LSJ will have to take time out from overthrowing the patriarchy, revealing individuals who spent a lot of time dressing themselves, and tantalising us with trips we cannot take because the practice of law (at least in the suburbs) hardly allows one either the time or the money, but come on – why not dazzle us with some important and even contemporarily relevant legal principles? Tom Adams Kirby and tea a winning combo As a passionate tea drinker who brews a large pot of leaf tea every morning for the family, I thoroughly enjoyed former High Court Justice Michael Kirby’s video message about the LSJ Online launch, but it might be pointed out to His Honour that one boils
the kettle, not the tea, and he should consider letting it brew a bit longer to be worth drinking. It was also wonderful to see such a traditional fruit cake, complete with almond decorations, just like my mother-in-law used to make. I wonder who baked the cake and who enjoyed eating it for their morning tea. Chris Kimber Progress can be good I was admitted to practice in 1984, and I recall my early days in the law with great fondness and a memory that my colleagues were always helpful to a newbie and were a pleasure to deal with. As the years went by, practice became more intense and complicated and often more adversarial, and with the many new practitioners being admitted I felt that much of the old-fashioned courtesy and collegiality was lost. With the introduction of electronic conveyancing, and again, finding myself a novice, my pleasure in dealing with my colleagues has again been restored. Without fail, practitioners I have been dealing with have been helpful if more experienced, or eager if faced with a problem that needs solving if also novices, and very collaborative in finding solutions and seeing a matter to successful completion. There has been so much reluctance to embrace the new regime of electronic conveyancing, but I can report that I have found that there has been this very happy by- product of its introduction: a return to a more friendly profession and great rapport between practitioners. Peter J. Grant, World Square, Sydney. Taking offence My opinion as a male in the profession is that this is an offensive cover (December LSJ ). I have never witnessed this type of behaviour [sexual harassment] in the profession against women. All women in
back to the office, ignoring all celebrations, to provide a moratorium certificate and thus proudly earn for myself my very first fee as a practising solicitor of 10 shillings and six pence. Oh how I wish today that I had framed and kept that 10 You don’t say! I read with great humour/ interest your webpage on fences (www.lawsociety.com. au/for-the-public/know- your-rights/problems-with- neighbours/fences). Informative, to the point and factual – good work here. The section “Can my neighbour look over my fence?” is hilarious, as the language/tone remains so practical and to the point. And it is basic common sense. Your privacy recommendations are funny, because they are just the natural response of a down-to-earth resident who has nosy neighbours. Anyway, I guess you have people complain about this all the time. Keep up the good (albeit ...”no sh*t”) work! MHP from Darwin NT (where we have big, opaque fences as standard issue kit because we know how to protect privacy) shilling note. Bill Caldwell Over the last two days I have listened to the two Off The Record podcasts and have been prompted to write to you after reading the following article in the SMH a short time ago (www.smh.com. au/business/workplace/wall- street-s-new-rule-for-the- metoo-era-avoid-women-at- all-cost-20181206-p50kh6. html). It would be a very sad and inappropriate response to your fine podcasts if Wall Street is mimicked amongst lawyers here. I have been trying to sort the issues and descriptions in The professionmust respond well
12 LSJ I ISSUE 52 I FEBRUARY 2019
my workplaces have been treated fairly, respected and protected. I have seen firms where the women have pictures or calendars of men/strippers in underwear placed on the walls of their o ce space. This was considered acceptable. There is much bullying and harassment of male solicitors who refuse to complain and speak up about it. I know of at least five men o the top of my head who were bullied out of the workplace and some even gave up the profession. Let’s keep things even handed and try not to tip the scales too much. Matthew Palazzolo profession was understated in the recent article in LSJ (“#Timesup for the legal profession”, December LSJ ). The article reported that 37 per cent of Australian lawyers have been sexually harassed during their careers. I think the number is understated because significant harassment goes on behind closed doors – unknown to the victim. Discussions among partners alluding to various physical or behavioural traits of junior lawyers is all too common. This disrespectful treatment is a form of harassment because it impacts on the victims’ progress or treatment within Sexual harassment understated Having practised law in the United States and Australia for a total of 45 years, I believe the incidence of sexual harassment in the legal
Fantastic article! So good to see the spotlight shining everywhere!” – Jo Stone, LinkedIn
“I have two little girls. My hope is that the conversations we are having now will mean they are safer in their workplace. We do need to remember that silence is approval and be brave enough to not walk past inappropriate behaviour. The practice of law is hard enough without this crap.” – Daniel Stoddart, LinkedIn
“Great! It’s good to see the law societies taking this seriously.” – Bridget Burton, LinkedIn
“Pretty confronting article, well done Kate. There truly are some seriously awful people out there.” – William Montgomery, LinkedIn “I’ve heard of male partners in Australian firms handing out ‘pink cases’ to young female lawyers; cases they believe wouldn’t “damage the reputation of the company.” – Selby Stewart, Twitter “Sexual harassment is a very significant problem in the legal profession. The strength of these women to tell their stories should be recognised and applauded.” – Anthony McGrath SC, Twitter “Congratulations on a confronting but brave article. I am not a lawyer but I was disgusted by your revelations.” – Lyn McGrath, Twitter
the law firm. Similarly, I believe the statistic that 31 per cent feel that the employer’s response is
insu cient is also low. I think the management response is almost always inadequate and the victims know that. As a profession, we have a long way to go in cleaning-up our own houses. Dr Harry Melkonian
ISSUE 52 I FEBRUARY 2019 I LSJ 13
New Young Lawyers President making an impact
BY KATE ALLMAN
(usually late at night, she says – the deadlines can be tight). There’s also a tiny bit of time for play, including at her favourite annual event, the Golden Gavel. “You can’t go past a comedy breakfast like the Golden Gavel,” said Windsor. “Seven hundred lawyers in a room, all laughing at law jokes at 7.30am. You can’t tell those jokes at a typical dinner party because no one gets them.” Windsor remarked that 2019 was also an exciting time to be a female lawyer. Women lawyers began to outnumber men in Australia for the first time in 2016, the ratio of female partners continues to climb at the nation’s leading firms, and the 2019 Law Society of NSW President is a woman. It’s a remarkable alignment in a profession still dominated by men in a ratio of about four to one in its senior ranks, according to the Australian Financial Review ’s 2018 Law Partnership Survey. “We just had a woman in my team at Clayton Utz promoted to Senior Associate while she was on parental leave, which is a real sign of the times,” said Windsor. “Firms and lawyers are waking up to the fact that lawyers can be any gender or race, they can have a life and still achieve. You will be valued for what you bring – and that’s more than just billable hours.” Of course, networks can still be key to climbing ladders in the legal profession. Windsor was quick to remind young lawyers that there was a horde of “really personable, intelligent, and decent people” ready to assist them with free mentoring and advice. “I studied law in Canberra and came to Sydney not really knowing anyone,” said Windsor. “The Young Lawyers mentoring program and events really helped me to connect with professional networks and new friends. Whatever kind of lawyer you are, we’ll help you find your people.”
The incoming President of NSW Young Lawyers, Jennifer Windsor, believes 2019 is an exciting time to be a young lawyer. T he legal jobs market is diversifying, globalisation is creating international opportunities, and technology is taking over menial tasks like discovery that were once reserved for graduates and clerks. Young lawyers are freer than ever to sink their teeth into important legal work in an array of workplaces. But perhaps the most exciting part, Windsor told LSJ , is the increased push for firms to value these up-and- comers as humans rather than billing machines. “Wellbeing is becoming a normal conversation,” said Windsor. “It’s okay to talk about depression and seek help, and that conversation is so important. Leadership from organisations such as the Law Society and Young Lawyers has a lot to do with that.” Windsor, a senior lawyer at Clayton Utz who also has extensive experience in government legal roles, took over from Immediate-Past President David Turner as President in October. In 2018, Turner ran several events preparing young lawyers for the future and the disruption sweeping the profession. However, in 2019 Windsor wants to focus on the present. She said the organisation’s motto for the year was “making an impact”. “The idea of Young Lawyers is that if you’ve got something you care about – you want to initiate or contribute to a law reform submission, an event, a wellbeing or pro bono initiative or anything else – we’re the ones that can make that happen,” explained Windsor. “We’ve got the networks, the skills, the resources to get you from thinking, ‘This would be great’ to ‘Let’s make this happen’.” Windsor has already been busy making things happen for about 15,000 NSW Young Lawyers members, all of whom are aged 36 and under, in their first five years of practice or studying law. She will spend 2019 chairing monthly council meetings, attending educational and networking events, and reviewing law reform submissions
It’s okay to
help, and that
such as the Law
has a lot to do
To join NSW Young Lawyers or find out more visit lawsociety. com.au/legal-communities/NSW-young-lawyers
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NEWTHISMONTH The FLIP Inquiry Series – RegTech The first FLIP Inquiry Series panel for 2019 will focus on “RegTech” – the hottest new buzzword in legal circles, relating to regulatory technology and the challenges it presents. The event will be held at the Law Society of NSW on 27 February from 5.30-7pm. NSWscraps ‘Ellis defence’ to child sexual abuse The NSWGovernment has eliminated a precedent that prevented thousands of survivors of child abuse from suing churches and other institutions in NSW. Commission into Institutional Responses to Child Sexual Abuse. Go to justice. nsw.gov.au for more information. Sexual harassment consultation for women in law The Australian Human Rights Commission has announced a second consultation session for women working in the legal profession to contribute to the National Inquiry into Workplace Sexual Harassment. The consultation will take place at the AHRC office, Level 3, 175 Pitt Street Sydney, on Monday 11 February 2019 10 – 11.30am. Register via EventBrite. The new laws came into effect on 1 January and implement a key recommendation from the Royal
DonWeatherburn NSW BUREAU OF CRIME STATISTICS AND RESEARCH
We’re now at the lowest level of property crime, motor vehicle theft, break and enter, robbery, stealing from cars, stealing from people ... all those robbery and theft offences are lower than they’ve been in 30 years.
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You left a career in corporate law for a more altruistic legal career. Why? Corporate law was an important foundational step in my career, but I always knew I would step into the public interest field once I had some corporate experience. The watershed moment for me was working for Aboriginal clients on Stolen Wages Reparations in remote East Kimberley in 2012, on secondment from Clayton Utz. I was confronted with the urgency of social justice in Australia in a way I’ll never forget. I moved into the non-profit sector about six months after I got back to Sydney. You founded Grata Fund in 2016 and are now the executive director. What exactly does the fund do and how does it work? Grata Fund catalyses and supports strategic litigation on issues of democracy, human rights and climate change. We provide adverse cost protection and disbursements funding to plaintiffs seeking to access the courts to hold governments and corporate leaders accountable, and create systemic change for their communities. We take applications for support from solicitors through our website and also develop new cases in-house, in collaboration with affected communities and external legal teams. We work with plaintiffs, affected communities and lawyers to build integrated communications campaigns around litigation to ensure the cases we support win both in and outside the courtroom. Tell us about the most rewarding case Grata has funded. The first case we supported in 2016 was the Doctors 4 Refugees and Fitzroy Legal Service challenge to gag laws Churchill Fellow and earned an LLB (Honours)/ BScience (Psychology) from Australian National University. She speaks to CLAIRE CHAFFEY about the need to hold governments to account. EXECUTIVE DIRECTOR AND FOUNDER, GRATA FUND After a stint as a corporate lawyer at a top-tier firm in Sydney, Isabelle Reinecke changed direction to pursue her passion for social justice causes in 2014. In 2015, she was nominated for a Walkley Award for Coverage of Indigenous Affairs. She is a 2016
in the Border Force Act . Those laws penalised Australian doctors with two years in jail for speaking out about horrific conditions in offshore detention. That was a really rewarding experience, as it resulted in the Government removing the gag laws from the Act and showed the power of litigation to hold Governments accountable to the law. Grata challenges unfair laws and policies. Which laws do you have your sights set on at present? We’re currently supporting a group of Eastern Arrernte people from Santa Teresa in remote NT and their pro bono lawyers, Australian Lawyers for Remote Aboriginal Rights, to take the NT Government to court over 600 urgent repairs that had been ignored by government for over five years. We’re talking about housing that is making kids chronically sick and is, according to the Australian Human Rights Commission, undermining all efforts to Close the Gap on health, education and employment. My father grew up economically disadvantaged in regional Australia in the aftermath of the Second World War, and went on to be the first in his family to attend university. He and my mother, also from a modest upbringing, went on to build really successful lives for themselves and our family, with careers that were focused on public service. Because of that I’ve always been acutely aware that it’s a pretty random statistical anomaly to be born into the immense privilege that I was. That’s always been a pretty strong motivator to use the privilege I have to help amplify the voices and power of other people in society. What inspires you to do the work you do? Is it difficult to stay motivated?
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BY LINDEN BARNES, ETHICS LAWYER
simple solution to discourtesy, but there are some actions that do help. First is our own level of courtesy and thinking of the recipient – how they might understand what we say. Second is grasping all opportunities we have for collegiality, whether it be a regional law society event or a helping hand to an opposing solicitor. 4. That I do myself out of a job. No, I enjoy what I do too much, so keep those ethical conundrums coming! I look forward to catching up with many of you over the next weeks as the Ethics Department tours the state with our Ethics Roadshow.
Happy New Year! Here’s my ethical wish list for the year ahead:
2. Everyone does their CPD well before 31 March.
How good would it be if, as we cleared our desks for Christmas, we could tick that o the list. A word of warning: 31 March is a Sunday this year and may not be the easiest day to obtain CPD, or to get help if that webinar you bought doesn’t stream properly. 3. There is no diminishing courtesy between practitioners. I personally don’t really experience it, but I am told about it. Unsurprisingly, solicitors who call the Ethics Hotline generally are ethical and courteous – they get it. I would love to have a
1. Rule 42 and #MeToo will be unnecessary. I was asked to write on the ethical implications of the following scenario: “My managing partner consistently makes lewd and inappropriate remarks about my choice of clothes, always out of earshot of others. e comments seem too trivial to raise with HR but make me feel uncomfortable and demeaned.” May it be that soon there will be no need to write about that sort of scenario because no one will behave like that anymore?
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Darrell Kake Joined as Director CharterLaw Legal
Andrea Evans Joined as Family Law Partner Mills Oakley, Canberra o ce
Kate Sambrook Joined as Senior Associate, Restructuring and Insolvency Squire Patton Boggs
Hannah Gore Promoted to Associate Pigdon Norgate Family Lawyers, North Sydney
Justin Levido Opened his own firm Levido Law + Property, Port Macquarie
Caroline Hutchinson Appointed as Chair of the Board Coleman Greig Lawyers
Natalie Vella Joined as Senior Solicitor, Litigation Environmental Defenders O ce NSW
Brett McGrath Joined as Senior Associate, Family & Relationship Law Gadens, Sydney
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New from the teamat LSJ, a podcast to shine light on the dark side of the legal profession.
SUBSCRIBE TODAY • Off the Record can be found on iTunes and SoundCloud • lawsociety.com.au/offtherecordpodcast
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INNOVATION State Government o ers big money for big ideas
way legal problems are resolved, or to help people more easily navigate the justice system,” said Speakman. e new scheme comes as free legal advice has become more di cult to access in recent years. Steady funding cuts to the legal assistance and community legal sector in NSW have made it harder for disadvantaged litigants to nd a lawyer, increasing court delays as people are forced to represent themselves. In 2017, Community Legal Centres NSW reported turning away more than 160,000 people in the 2016-2017 nancial year due to a lack of resources. Speakman said nearly three million people in NSW experienced a legal problem every year – 85 per cent of which were civil law issues. “ e fund will focus on projects that demonstrate how technology or new methods of service delivery can support small business and people who are experiencing social and economic disadvantage to resolve legal problems,” said Speakman.
The NSWGovernment is calling on creative lawyers, coders and entrepreneurs to apply for grants to improve access to justice. Attorney-General Mark Speakman announced in December that the Department of Justice would grant up to $250,000 each year to people
with tech-savvy solutions to improve access to justice. e department has set aside $1 million over four years for the scheme, called the Access to Justice Innovation Fund, to make the civil justice system more accessible for vulnerable or disadvantaged Australians. “Grants will be open to applicants such as legal professionals, community groups, coders and social entrepreneurs who have ideas for projects to improve the
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M E D I C O L E G A L P S Y C H I A T R Y Criminal & Civil Forensic Reports
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INQUIRY AHRC extends deadline for sexual harassment submissions
CONGRATULATIONS 62 new specialists gather to celebrate their achievements
Australia’s Sex Discrimination Commissioner Kate Jenkins has given stakeholders an extra month to make submissions on the national inquiry into workplace sexual harassment. Jenkins said she hoped the extra time would give employers enough time to partially waive non-disclosure agreements (NDAs)
so their employees could make confidential submissions to the inquiry. The NSW Government Sector and18 private companies have already agreed to the limited waiver of NDAs. At the time of publishing, just one Australian law firm – Clayton Utz – was among them. “We know NDAs can be beneficial, enabling all parties to put the unpleasantness of a dispute behind them,” said Jenkins. “But we can’t fully understand the experience of the full complaint process, including negotiating resolutions that include NDAs, without access to the experience of people – complainants and respondents – who are subject to them.” Jenkins urged the legal sector to consider waiving NDAs to allow more lawyers to contribute to the inquiry. See her opinion piece on page 26 of this edition. A list of employers supporting the waiver is on the AHRC website. Submissions can be made via the AHRC website until 28 February.
Richard Harvey, Chair of the Law Society’s Specialist Accreditation Board (centre), with newly accredited specialists in 2018.
The Law Society of NSW and the Specialist Accreditation Board congratulated 62 solicitors who obtained their Specialist Accreditation in 2018. The program received 186 applications and 137 candidates completed the program. Richard Harvey, Chair of the Specialist Accreditation Board (above centre), presented the new Accredited Specialists with their certificates at a cocktail event held at the Law Society of NSW in December. This year, the areas of accreditation offered are business law, commercial litigation, criminal law, family law, property law, and wills and estates. For more information visit lawsociety.com.au/specialist-accreditation .
COMMUNITY NEWS Bell to replace Beazley after Governor appointment
Bell is the Senior Vice President of the NSW Bar Association and a past Chairman of a Professional Conduct Committee. For the past decade, Dr Bell has been an Adjunct Professor of Law at Sydney University. Speakman paid tribute to Justice Beazley, who will become the 39th Governor of NSW in May this year. “Justice Beazley is a highly decorated Federal Court of Australia and NSW Court of Appeal judge whose legal career crosses four decades,” he said. “She has been a trailblazer for female lawyers across the state as the first
woman appointed to the bench of the Federal Court in 1993 and then to the Court of Appeal in 1996, where she continued to break records by becoming the first female President in 2013. She was the third woman to join the Supreme Court judiciary. “I thank Justice Beazley for her outstanding contributions to the judiciary and congratulate her on becoming the new Governor of NSW,” Speakman said. Dr Bell will be sworn in as a Justice of the Supreme Court on Tuesday 28 February 2019.
Sydney barrister Dr Andrew Bell SC will be elevated to the bench of the Supreme Court, replacing Governor- designate Justice Margaret Beazley AOQC as President of the Court of Appeal, Attorney General Mark Speakman announced last month. “Dr Bell is one of the Sydney’s leading barristers, with 24 years at the bar. He has appeared in 30 High Court appeals, more than 80 appeals in the NSW and Western Australia Courts of Appeal, as well as appearances in the Full Court of the Federal Court,” Speakman said.
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