LSJ February 2020
Putting an age on crime Why debate around age of criminal responsibility is notoriously complex A glimpse into the dark An exclusive interview with two North Korean defectors on the most wanted list Online court revolution Richard Susskind on the growth of online justice: are we ready? A newclimate for super The debate around climate-related risks and superannuation funds heats up
ISSUE 63 FEBRUARY 2020
Cries for legal help rising from the ashes of NSWcommunities
PLUS: UPDATES ON CRIME, LITIGATION, COMPLIANCE, BANKRUPTCY & MORE
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ISSUE 63 I FEBRUARY 2020 I LSJ 81
24 Hot topic
34 Putting an age on crime Behind bars and without hope. Amy Dale asks if it’s time to raise the age of criminal responsibility 38 Out of the darkness Two North Korean defectors tell Kate Allman about living in terror under the communist regime
Is trial by robot the way of the future? An exclusive extract from Richard Susskind’s latest book
How lawyer and winemaker Sandy Godfrey stays in vintage form, from the courtroom to the vineyard
26 Lunchwith a lawyer
RFS volunteer Stuart Clark takes a break from fighting fires to discuss the catastrophic summer
Our health and fitness experts reveal the best tricks to make your new year’s resolutions stick
28 Cover story
When the bushfires end, the legal storm is only just beginning. Kirrily Schwarz reports
Angela Heise on embracing your true self and mastering the art of authenticity
From Big Ben and Buckingham Palace to Boris bikes and bigger beers. Kate Allman brings you the best of London
ISSUE 63 I FEBRUARY 2020 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 26 Out and about 44 Career matters 46 Mindset 48 Doing business 49 Career coach 52 Health 60 Youwish 62 Books and lifestyle 64 The case that changedme
The latest key developments in advocacy and law reform
Whose insurance will cover the work of a consultant solicitor?
68 Climate law
82 Practice & procedure When emailing the court, is it enough merely to cc your opponent? 84 Property
The growing pressure on corporations to mitigate the financial risks of climate change
The High Court decision shaking up the future of common fund class actions
What you need to know about using an e-settlement subscriber for your eConveyancing work
75 Criminal law
86 Environmental law The legal implications of
A new study of the right to silence, reveals some compelling findings for socially marginalised defendants
Australia’s latest World Heritage listing and why it’s so significant
78 Practice & procedure The Legal Services
A series of related decisions reveals the Court’s broad approach to the alienation of property with intent to defraud
Commissioner on the importance of having appropriate management systems in place
90 Case notes
The latest High Court, Federal, family, criminal, and elder law and succession judgments
80 Compliance risks
85 Library additions 106 Avid for scandal
Does the modern ‘consultant solicitor’ have the practising certificate to match?
4 LSJ I ISSUE 63 I FEBRUARY 2020
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ISSUE 63 I FEBRUARY 2020 I LSJ 81
A word from the editor
Are you feeling refreshed as we enter into a new law term this month? If not, you’re not alone. Over the past month I have been catching up with friends and colleagues after a few weeks off, and a general theme is emerging – no one is feeling particularly renewed. I wonder why? There is some consensus that the dramatic and traumatic bushfire emergency has taken an emotional toll on the population at large. Even those not
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor
directly affected likely knew someone who was at some point threatened by fire. I spent a good part of my short trip abroad streaming ABC radio to stay across the fires threatening family in the Hawkesbury and Blue Mountains. It was stressful even from afar, and seeing the fires from an aeroplane brought home their enormous destructive power. You will find numerous articles in this edition which touch upon the fires. Amidst the terrible stories, though, are so many stories of hope, goodwill and community – least of all the fact that the legal community has responded to the emergency with all the good grace, warmth and pragmatism one would expect from such a profession. For all of you who have answered the call, thank you. You’re setting the tone for what will hopefully be a year to remember – for all the right reasons.
Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2020 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.
KIRRILY SCHWARZ Cover story p28 Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue, she asks what will happen in the wake of the NSW bushfires and how the profession can respond to those in need.
JOHN MCKENZIE Practice & procedure p78 John McKenzie is the Legal Services Commissioner for NSW. In this issue, he encourages practitioners to ensure they have the right management systems in place and reveals the best way to prepare for an audit.
ANDREW BEATTY Environmental law p86 Andrew Beatty, Director of Beatty Legal, & Tim Unsworth, Director of Unsworth Legal, team-up to explain the legal significance of Australia’s latest World Heritage listing - the unique and fascinating Budj Bim.
AMY DALE Feature p34
27,100 * *AUDITED MARCH 2019 DISTRIBUTION
Amy is a journalist at LSJ . She is a published true crime author and a former policy and media adviser for the NSW government. This month, she asks experts whether it is time to raise the minimum age of criminal responsibility and banish doli incapax .
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 firstname.lastname@example.org. 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.
Cover: Getty images
NEXT ISSUE: 1 MARCH 2020
6 LSJ I ISSUE 63 I FEBRUARY 2020
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ISSUE 63 I FEBRUARY 2020 I LSJ 81
This year, we will continue with our extensive and highly successful Future of Law and Innovation in the Profession (FLIP) initiatives and research, with an eye to helping solicitors harness technology and innovation to support the viability of their legal practice and foster their practice management skills, thereby enhancing the services they provide to their clients and the community. I also plan to prioritise work onmental health and wellbeing to support the profession in coping with the challenges of legal practice in 2020. This will include the addition of a new Wellbeing Coordinator at the Law Society and ramping up our CPD offering in this space. This support is particularly relevant for solicitors in the regions, whose clients are dealing with the hardships created by one of the worst droughts our state has endured and, for many, the bushfire disaster, which has caused so much devastation and destruction. While the drought endures and the road to recovery from the bushfires will be long and challenging, it is heartening to know it will be with the support of both our profession and the broader community. Thank you to the many solicitors and firms who have offered to provide free legal assistance to those impacted by the fires. If you haven’t done so already, I encourage you to read the guidance available on the Law Society website and follow the process for providing meaningful and targeted help to those individuals and communities requiring immediate and/or ongoing legal assistance. And for those solicitors whose practice or home has been damaged or destroyed by the fires, please remember that the Law Society has a range of support services available, which are also outlined on our website. I would like to take this opportunity to acknowledge the incredible work being undertaken by the staff and volunteers at Foodbank during the bushfire emergency. Foodbank, which is the President’s Charity for 2020, is Australia’s largest food relief organisation and the only charity to play a role in times of emergency and natural disasters such as fires, floods and cyclones. I was privileged to visit their warehouse in western Sydney recently and experience first-hand the incredible logistics involved in providing a staggering 300 tonnes of food every week to people in need in NSW and the ACT. I am looking forward to partnering with Foodbank NSW/ACT this year to promote awareness of and raise funds for their important work.
A s a solicitor who has practised continuously for nearly 40 years, I am well aware of the unique, human dimension of legal practice and the important role solicitors play as trusted professional advisors and members of local communities. As detailed in my interview with LSJ Editor Claire Chaffey on page 14, my experience as a solicitor has been in small firms in the suburbs of Sydney. I have also served for nearly a decade as a Law Society Councillor and on a range of committees, including chairing the Specialist Accreditation Board and Property Law Committee and as a member of the Fidelity Fund, Conduct, and Diversity and Inclusion committees. It is with this knowledge and experience that I embark on my term as President of the Law Society, committed to working with and on behalf of our state’s legal practitioners, regardless of what area of law they specialise in, the size of their practice, or where it is located. Looking to the year ahead, my focus for 2020 will be on three key areas: the viability of legal practice; recognising the value, skills and expertise of our profession; and wellbeing. While our heritage embraces and promotes time-honoured principles, which must be retained, I want to strengthen the role of our profession as we move into the future, embracing and making the most of innovation to work more productively and with the best interests of our clients at heart.
8 LSJ I ISSUE 63 I FEBRUARY 2020
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ISSUE 63 I FEBRUARY 2020 I LSJ 9
Mailbag LETTERS TO THE EDITOR
either working for themselves or leaving completely, it doesn’t make sense to just keep doing the same thing over and over. As lawyers, we are better than this and it seems lazy or illogical to keep following this old path. I have found from day one that by creating my own legal business model I have been able to embrace innovation immediately with new lawyers who are valued equally, not my underlings. Now there’s food for thought … Also, the profession needs to stop using the word “young” when referring to people entering law for the first time e.g. Young Lawyers should be Emerging Lawyers, as I was 40 when I entered the profession and, along with many other mature students, we have felt unwelcomed in An update for your readers … Our small oce decided to use Maryanne Ofner’s prize for her letter to LSJ about Warwick Dunn’s longevity in the law to boycott our oce’s former long-standing celebration of Melbourne Cup. We instead opted to enjoy the complimentary lunch at the Law Society and celebrate our own long-distance champion Warwick’s course through the law. Perhaps not surprisingly we had the dining room to ourselves. What was surprising was to collect the latest version of LSJ from the dining room and find another prize-winning letter with the same theme of Warwick’s longevity in the law. Perhaps, then, it would not be at all surprising given what you have learnt to date about Warwick that, following a most convivial lunch, most of the sta disbursed with an early mark, but Warwick dutifully returned to the oce, where you will find him most days, until 5pm. Can Warwick’s commitment to legal practice earn yet another prize-winning lunch (or at least publication)? On a serious note, the sta of Biddulph & many circumstances. Marcel Vaarzon-Morel Flogging a not-dead horse
Salenger certainly owe a debt of thorough-bred proportion to the overflowing cup of knowledge, professionalism and courtesy Warwick has shared with us over the years and would be keen to hear further stories about the “golden oldies”, quietly setting their own pace on the increasingly fast- paced legal track. If this letter is not worthy of publication, perhaps an article or series of articles focusing on the achievements of long-serving practitioners could be explored. Speaking from experience, their contribution has been mighty. Edyta Zurawski I was interested to read in November LSJ (Latest developments, p67) that our Human Rights and Employment Law committees have quite rightly identified some of the serious deficiencies in the proposed “religious freedom reforms” (see dot points 2 to 5). Surprised, therefore, was I to read (dot point 1) that the committees appear to give support for the proposed reforms. In short, the “reforms” will give persons with “religious belief” or indeed “belief in no belief …” a statutorily protected right to harangue work colleagues and others provided the dicta is a recognised tenet of a religion (or presumably non-religion). Will law schools be required to introduce “religious studies” so we can advise our clients (particularly our employer clients) whether the religious (or non-religious) proselytising amounts to protected speech or to harassment or bullying? This attempt at social engineering is bizarre. It is Pythonesque. It is enough to wake a dead parrot from eternal slumber. Whether you agree or not will, I suppose, depend on whether you believe in resurrection, or whether your “belief” is one of “non-belief”! Heaven help the hapless souls of no particular beliefs who fall between the cracks. This nonsense should be Waking dead parrots from slumber
ISSUE62 DECEMBER 2019
Billable hours come at a cost
I love [Sam McKeith’s] article (November LSJ ,
“Crying over billedmilk”, p40). In fact, my firmhas used a fixed-fee system for 12 years and we have been able to embrace many new practices and systems well before other legal practices. Initially when I mentioned my system in various groups, other lawyers looked at me as if I was crazy. But I had a career before entering law as a mature-age practitioner. From the start I realised the whole process of billable hours was wrong on every level. Those proponents of the billable system are ignoring the human toll that this system is exacting on lawyers. The pressures created I have witnessed firsthand, with new and experienced lawyers alike. [It] has created mental health impacts on lawyers that range from nervous breakdowns, family destruction through to suicide. I understand lawyer suicide rates are amongst the highest of professions. Not to mention the costs to universities and practices with lawyers either not continuing in their career or leaving shortly after entering. The cost of training and loss of skilled lawyers is a significant issue for any profession or business. Interestingly, the billable system was invented by an American accountant, that was quickly abandoned by many. The only winners in a billable system are those that have their hands tightly gripped around the purse strings, for if greed is the key motivator it can be argued that your moral compass may be compromised leading to illegal practices. The starting point for my practice was by asking the question: how would I want to be treated (both client and lawyer)? And, based on my experience, it was not how the industry was operating. With the exodus of lawyers from the profession to
Enactingtheunenacted Growingcalls for the revivalofone ofAustralia’smost secretive laws Afreshnewperspective What formerPrimeMinisterJuliaGillard really thinksabout lawand leadership
Practising lawatacost Awrap-upandanalysisof the year’s most significantcasesoncosts O -the-planreforms Changes toproperty lawdrivenew editionofcontract for saleof land
Meetthree inspirational lawyersexcelling andthriving inthefaceofdisability Willingandable
PLUS: UPDATESONWILLS,COMPLIANCE,EMPLOYMENT,ANIMAL LAW,RISK&MORE
28/11/19 4:21 pm
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! Marcel Vaarzon-Morel has won lunch for four. Please email: email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 63 I FEBRUARY 2020
LETTERS TO THE EDITOR
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opposed. We could, however, beef up our existing free speech protections (if thought necessary) by removing the word “o end” (and perhaps even “insult”) from s18C1(a) of the Racial Discrimination Act 1975. That is, however, a discussion for another day. Peter Neil Wilson, Trangie ValeMargaret EllenWells neeMcFadyen Margaret Ellen Wells was born on 10 February 1949 at St Margaret’s Hospital, Sydney to George Leslie McFadyen, a shop-fitter and returned soldier, and Dorothy Joyce McFadyen (nee Kaine). She had two elder brothers, Ron and Peter, and two younger sisters, Dorothy and Catherine. When Margaret was three, George took his family to live on Argyle, a wheat and sheep property that his grandfather had selected in 1901 at Wyalong. She had many happy memories of life on a farm during the 1950s. Margaret attended primary school at St Mary’s West Wyalong and when she was 11 she was awarded a State Bursary to attend Mt Carmel College in Yass, where she boarded for five years to complete her secondary schooling. Despite Margaret spending most of her life in the city, she always remained a country girl at heart. Return visits to the city were equally exciting with the opportunity to watch television, ride on trains and buses, and go to the beach. Margaret was a gifted student and at the completion of her final exams she was awarded two scholarships to university. She completed her Arts degree at Sydney University in 1969 and the following year, after obtaining a Diploma of Education, she started teaching at Busby High in Western Sydney. While at university, Therese Clancy introduced Margaret to a law student named Paul Wells, at the nearby Forest Lodge Hotel. Paul and Margaret married in 1970, when Paul was in his final year and Margaret was teaching. They moved to Port
Vila in Vanuatu in 1972 where Paul worked as a solicitor and Margaret worked in the law oce. This was followed by two years in London where Margaret again worked as a legal secretary while Paul practised law. They returned to Sydney in mid-1976 to live at 4 Colbourne Avenue in Glebe and their one and only son, James, was born on Christmas Eve of that year. While James was a baby, Margaret began studying Law at Sydney University. She graduated in 1981 with 2nd Class Honours and won prizes for the subjects of Torts and Succession. It was during this time that Margaret met Kim Smith and became friends. They had met by chance outside the Dean’s oce. Kim had her first born, Jonathan, with her and Margaret o ered to nurse him while Kim saw the Dean. Thirty- three years later, Jonathan married [Margaret’s daughter] Amy in 2014. Meanwhile, Paul had set up his own legal practice in Sydney and in 1982 Margaret joined the firm. In May 1985, the family moved to 8 Avenue Road, in time for the birth of Amy a few months later in September, and then Clare was born in December 1986. Margaret’s love of French culture, lifestyle and language had begun in her earliest days of high school. She visited France with Therese in 2005 and bought 2 Rue du Babaudus in 2010. Shemanaged to transformher little house into a modest but charming pied a terre with her clever eye and unique taste. Margaret was a devoted mother and partner, a caring friend and a highly skilful and competent lawyer, specialising in the field of family law. Prior to her retirement she took on legal aid cases for women whose children had been taken from them under care orders. Her generosity was best represented with the donation of a kidney to Paul who su ers from polycystic kidney disease and after numerous tests she was shown to be her lifelong partner’s perfect match. The successful
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ISSUE 63 I FEBRUARY 2020 I LSJ 11
Mailbag LETTERS TO THE EDITOR
Women in Black where she would be found supporting Palestine on the steps of Sydney Town Hall; as well as her long-held desire for Australia to become a republic. She is survived by her husband Paul; James and his wife Meredith, children Charlotte and Edward; her daughter Amy and her husband Jonathan, and their sons William and Alexander; and her youngest daughter Clare and her wife Megan. Kim Howard Smith We regret to inform you that your precedents are now out of date. “Dear Sirs” is a salutation applicable to men. Fifty-two percent of legal practitioners are not men. We are amongst them. We invite you to join us in 2020 with an updated mindset and precedents and Ditch the outdated Dear Sirs,
to refrain from addressing us as “Sirs” in correspondence. You could try “Dear Partners”, “Dear Colleagues” or “Dear Mesdames”, options all rising in popularity given the increasing number of women lawyers, women law firm partners and firms solely owned by women. Sincerely, Your colleagues The above letter is gaining traction with female lawyers. I know that it annoys me when I am addressed as “Dear Sir”, the language is outdated and disrespectful. There is a gofundme group set up to pay for advertising to address the issue. Natasha Smith Jet ski conundrum I am a retired NSW Police Officer. Some months ago, I was made aware of the high costs of personal watercraft
(PWC/jet ski) registration and licencing in NSW. It’s about $550/year compared to Qld of $88/year. I began looking into relevant NSW legislation and the definition of a PWC in the NSW Water Traffic Regulations states: A power driven vessel that; a. Has a fully enclosed hull, and b. Does not retain water taken on if it capsizes, and c. Is designed to be operated by a person standing, sitting astride or kneeling on the vessel but not seated within the vessel. This definition has been in the legislation for 30-40 years. Looking at how the PWC’s were constructed prior to the year 2000 and what it states in the above definition, I feel those who made this legislation got it spot on. It is a precise description of an early model jet ski (PWC). My
transplant took place at Prince of Wales Hospital in July 2013 shortly after they closed the doors at Paul Wells & Co – a 30-year chapter of their lives where they worked together day and night and most weekends, nurturing both the business and the family. Her warm spirit, sense of humour, strong convictions and kind empathy for others shone through her dealings with everyone she met. She was determined to live life on her terms, wasted no opportunity and saw the good in others. She was always keen to share the benefit of her advice and experience. In retirement she volunteered as a fastidious Justice of the Peace at Glebe Library and in Balmain; at the Supreme Court and her causes, notably the
“As a Councillor of the Law Society of NSW and someone directly impacted by the fires over the past few weeks, I am grateful and proud of our profession. The Far South Coast and Monaro Regional Law Society encompasses an enormous area, most of it on fire in the last two weeks. Thank you to everyone that has registered to assist as legal volunteers through The Law Society of NSW ...this will provide meaningful and targeted assistance to those who really need it.” – Joanne van der Plaat, LinkedIn “Thanks for this. Such great work from the profession. News like that has to get out because lawyers sometimes cop negative societal views.” – Nicholas Stewart, Twitter
“Great article. These stories are important to changing people’s perception of what’s possible.” – Nicole Lyons, LinkedIn “Great to see this on IDPWD and hearing from the three lawyers! I hope this becomes a regular feature and we hear from diverse range of people with disability, including people with cognitive disability and psychosocial disability. It would also be great to hear more on what the legal profession is doing to dismantle barriers, so becoming a lawyer as a person with a disability, doesn’t have to be “overcoming the odds.” – Emily Cukalevski, Twitter
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LETTERS TO THE EDITOR
concern is with part b) of the definition (retention of water after capsizing). After the year 2000, a large percentage of PWC’s were constructed with a raised rear, causing a significant amount of water to be trapped in the foot wells after capsizing (in excess of 10lts each side). This trapped water escaped over the rear of the vessel only when the vessel was driven and accelerated. This retention of water after capsizing put these vessels in direct conflict with what was stated in the definition. I contacted NSW Roads and Maritime (RMS) and commenced communication, via email, with David Hunter, General Manager Operational Policy and Performance, NSW Maritime Division. It took time, but I finally obtained RMS’s opinion of all aspects contained in the above definition. I was also informed that there was no
further legislation to describe a PWC. I then informed RMS MP Constance of my concerns about the conflict with part b) of the definition and the construction of the later model. After six months, I have not received a reply from his office. RMS also stopped communicating. I informed the NSWOmbudsman’s office and I believe the matter is now under investigation. If my analysis is correct, then I have opened a bag of worms for RMS. If these vessels are not classed as PWCs then RMS may be liable for about $380 per vessel per year. There are also specific fines that relate to PWCs and the revenue from these offences would be in jeopardy. If you feel this matter has struck your interest, let me know and I will forward you the relevant emails from David Hunter. Steve McLeod
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ISSUE 63 I FEBRUARY 2020 I LSJ 13
lose people in the community who do so much,” he says. “If there is no viable legal profession, there is no pro bono.” While the viability of practice de- pends on multiple factors, Harvey sees technology as especially important. He will oversee the continuation of the Law Society’s Future of Law and Innovation in the Profession (FLIP) program, which includes numerous CBD and regional events as well as ongoing research via FLIPStream, a partnership with the University of New South Wales. Harvey’s second focus for the year will be protecting and promoting the legal profession as a profession, placing emphasis on what that means for law- yers and the community. Professions are, he says, under attack by “consum- erists” and other forces that threaten the very foundation of what it means to be a professional. “Being in a profession is different to being in a business, because you have ob- ligations to more than your clients and certainly to more than yourself,” he says. “You must operate within ethical rules, so everybody knows there is an even playing field.” This higher level of duty is what de- fines a profession, says Harvey, and is also what adds immense pressure to the day-to-day reality for lawyers. “We cannot breach our ethical ob- ligations, because if we do, we lose our right to practice. You had better be good at working at a coffee shop,” he laughs. Harvey’s charity for the year is Food- bank, Australia’s largest food relief or- ganisation which is instrumental in pro- viding disaster relief. While Harvey’s initiatives to support Foodbank will continue throughout the year, one of his first official duties as President was to call upon the profession to provide free legal assistance to those affected by the bushfires. The response has been remarkable, with hundreds of solicitors and firms offering their resources. “I think we will get an overwhelming response,” he said at the time he put out the call. He was right.
LEADERSHIP NewLawSociety President outlines 2020 vision This year’s Law Society President Richard Harvey has two core items on his agenda. He talks to CLAIRE CHAFFEY about what the profession can expect in 2020.
A sole practitioner based in Mosman, Richard Harvey’s 40 years of experience in small firms has culminated in accred- ited specialisation as a property lawyer and ascension to the role of President of the Law Society of NSW. It isn’t his only role as President in 2020, however. As a law student in the late 1970s, Harvey spent almost as many hours pulling beers at the Annandale Ho- tel as he did buried in his books. As the last of the families trickled out the door by 10pm, members of the Petersham Rugby Club kicked on. Tight bonds were forged and Harvey’s love of the game, formed in high school alongside three future Walla- bies, was rekindled. “That’s when I thought, maybe I’ll play again,” he recalls. Forty years later and with more than 300 games under his belt, the former front-rower is both club stalwart and club President – though his playing days are behind him.
These days, Harvey is on the front- lines of the protection and progression of the profession. Heavily involved in the move to e-settlements in convey- ancing, Harvey sees the viability of legal practice as a critical issue. Accordingly, he plans to spend much of his year as President ensuring lawyers – especially smaller players – have access to and fully embrace practices and tech- nology that will allow their businesses to thrive. “If you want access to justice, you need to have lawyers at hand, no matter where you live,” Harvey says. “If lawyers can’t make money, there will not be enough lawyers. And all the lawyers will be in the Sydney CBD or surrounding suburbs.” This, says Harvey, would be devastat- ing for rural and regional communities that depend on the skills and goodwill that many solicitors provide. “If regional areas lose lawyers, they
Photography: Jason McCormack
14 LSJ I ISSUE 63 I FEBRUARY 2020
NEWTHISMONTH Opening of Law TermDinner As is tradition, Chief Justice of the Supreme Court of NSW Tom Bathurst will open the new year’s law term with an address on 5 February. Tickets are available individually or as a table of 10. Visit lawsociety.com.au/ 2020-opening-law-term-dinner
Tickets on sale for PIAC Social Justice Dinner
Hear from guest speaker and renowned art- ist Ben Quilty at the annual PIAC Social Justice Dinner at Doltone House on 27 February. Guests will have the opportunity to bid on fabulous silent auction prizes or make a tax-deductible donation to PIAC. Visit piac.asn.au/2019/12/19/2020 -social-justice-dinner/ Program released for 2 nd LAWASIA Human Rights Conference
TimLeach Executive Director of Community Legal Centres NSW. Heading up the CLC bushfire response.
Will we have enough resources? Right now, it is too early to tell, because right now people are still putting out fires.
LAWASIA will hold its 2nd annual Human Rights Conference in Kathmandu, Nepal, between 7 – 8 March. For information on the program and to register head to lawasiahumanrights2020.com
ISSUE 63 I FEBRUARY 2020 I LSJ 15
Chief Justice Will Alstergren leads the Family Court and the Federal Circuit Court. As 2020 brings a fresh review into the workings of the high-stakes jurisdiction that tackles thousands of new cases each year, the Chief Justice has plenty on his plate. In an interview with AMY DALE , he reveals a bold agenda to clear the backlog, work closely with solicitors, and support litigants in their most stressful hour. sixminuteswith CHIEF JUSTICE WILL ALSTERGREN
management principles for family law and done by getting together a group of judges from both jurisdictions and an independent chair. Already there has been significant progress on the case management principles, and this is the first time in more than 20 years that a project like this has been achievable. The second key piece of reform is increasing the role that registrars play in the dispute resolution process. Some judges have dockets of 400 to 600 cases. We have very well-qualified and skilled registrars who are able to do interim matters, alternative dispute resolution, and property cases. There is currently a lot of attention on the family court, with the announcement of another inquiry. Does that sort of pressure take its toll? The focus of the court should be on lit- igants. There is a lot of negativity [to- wards] the court at the moment and, as judges, we have to create a positive
environment. I know the judges of the court have got such integrity and they really want to improve the system. We are working very, very firmly to make cases more effective and get them out of the system more quickly. I implore the government to see the urgency and necessity of increasing our resources. What can solicitors do to ease the stress of the family court experience? Solicitors do a wonderful job. I commend practitioners across the state for the skill and dedication they bring to their work. In terms of practical steps, it can be about making sure clients are prepared, that they turn up to callover, and that they have an open mind to settling as soon as possible – or, if it is appropriate, moving towards alternative dispute resolution. Identifying the best outcome for their client, and that could be through different forms of dispute resolution, such as arbitration or mediation.
Both of your roles bring considerable responsibility. How difficult is managing such a broad jurisdiction? It is challenging. When you have cas- es that are three or four years old, it is placing a direct burden on families in the most stressful time in their lives. We are looking really closely at what changes can be made to improve the system; cur- rently there are too many delays. People are spending disproportionate amounts of money on legal fees – and it is dispro- portionate, especially when you consider howmuch they are actually fighting over. That pool of assets can quickly diminish when you factor in the time it takes and the delays in the litigation process. What measures have you put in place to address the significant delays? One of the biggest pieces of reform is the harmonisation of the Family Law Rules and the Federal Circuit Court of Australia Rules. This is the development of a single set of rules, forms and case
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BY LINDEN BARNES, SENIOR ETHICS LAWYER
Q: I want to helpmy distressed client – how sealed are my lips?
skills. But what if one of these clients is suicidal? Can you disclose information about them and get help? It is ingrained in us to keep our solicitor lips hermetically sealed, but there are exceptions. One of them, set out in Conduct Rule 9, says we can disclose information “for the purpose of preventing imminent serious physical harm to the client or to another person”. is is where it’s important to know what resources are available. Do you contact the police? Does your local
hospital have a team that can help? Do you know who your client’s doctor is (it might be prudent to obtain that information up front for some clients)? What is also important is looking after yourself. ese sorts of situations are de nitely stressful. Maybe give LawCare a call on 0416 200 788. And don’t forget to give the Ethics Line a call if you need our guidance – 9926 0114. We are another one of the Rule 9 exceptions.
A: I’m not even going to try to nd an appropriate adjective for the bush res and the resultant su ering, but I am going to try to help you help a ected clients. Many of you will be providing advice to very distressed people – the response to the Law Society’s call for pro bono advice to bush re victims shows just how eager you are to give your time and
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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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Victoria- Jane Otavski Joined as Special Council Automic Group
Zainab Jaber Promoted to Associate Banking and Finance Makinson d’Apice Lawyers
AshleighMoran Promoted to Senior Associate Clinch Long Woodbridge
Karena Nichols Joined as Partner Injury Compensation Law Coutts Solicitors & Conveyancers
Abbey Conquest Promoted to Solicitor Property Elliot Tuthill Solicitors
Christopher Yong Joined as Lawyer, IPTR Thomson Geer
Kylie Lundy Promoted to Associate Director Era Legal
Adele Veneess Joined as Senior Associate Government and Environmental Law Coutts Solicitors and Conveyancers
Amanda Olic Joined as Senior Associate Commercial Law and Immigration law Coutts Solicitors and Conveyancers
Nicholas Chase Berry Promoted to Senior Associate Era Legal
Blake O’Neill Promoted to Associate Director Era Legal
DeniseWright Promoted to Associate Director Era Legal
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
On 16 January 2020 the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as A P Sparke & Broad Lawyers. On 16 January 2020 pursuant to s.327(2)(b)(iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Anthony Neary Walker, Solicitor, as manager of the law practice known as Sam Parmaxidis for a period of two (2) years. On 16 January 2020 pursuant to s.327(2)(b)(iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Anthony Neary Walker, Solicitor, as manager of the law practice known as R A Bayliss & Co for a period of six (6) months.
On 16 January 2020 pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as Milne Berry Berger & Freeman for a period of two (2) years. On 16 January 2020 pursuant to s.327(3) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as Hilton King Lawyers Pty Ltd for a period of one (1) year.
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NSWWOMANOF THE YEAR LawSocietymember nominated for NSW Premier’s Award
Sydney artist, lawyer and writer Amani Haydar has been shortlisted for the 2020 NSW Premier’s Woman of the Year Award. Haydar lost her mother to domestic violence at the hands of her father in 2015 and has since used her legal and creative skills to spur action on violence against women. She was a nalist in the 2018 Archibald Prize and won the Law Society of NSW Just Art Artists’ Choice Award in 2019. She has made submissions to the NSW Sentencing Council to address concerns she has with criminal sentencing procedures. She has also called for laws on character evidence to be allowed in certain cases, and for coercive control and psychological abuse to be criminalised as it is in the UK. Online voting for the Premier’s Awards is now open at women.nsw. gov.au/news-and-events/women-of- the-year
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NSWBUSHFIRES NSW legal profession rallies to support bushfire victims
BY KATE ALLMAN
The NSW legal profession has rallied to support bushfire-ravaged communities in NSW, amid an unprecedented bush- fire crisis that has damaged or destroyed more than 2,600 homes across the state this season. Australia’s largest law firms have in combination pledged almost $1million in donations to charities assisting in the crisis, including the NSW Rural Fire Service (RFS), the Australian Red Cross and WIRES Wildlife Rescue. Ashurst, Gilbert + Tobin and Clayton Utz have each pledged at least $200,000 in donations to bushfire relief and recov- ery causes, as well as offering up to 20 days of extra paid leave for staff wishing to volunteer with organisations assisting in the bushfires such as the NSW RFS. Ashurst and Gilbert + Tobin have vowed to match staff donations to the Austra- lian Red Cross Bushfire Appeal dollar for dollar. A spokesperson from Herbert Smith Freehills said the firm expected total donations from the firm and staff to relief causes would be “in excess of $200,000”. The two remaining firms from the “Big Six” – King & Wood Mallesons and Allens – told LSJ of considerable donations via their part- nerships but preferred to keep those numbers under wraps. Individual solicitors and smaller firms have also opened their wallets to contrib- ute. Many firms including DLA Piper, Maurice Blackburn, Lander & Rogers, Herbert Smith Freehills, Shine Law- yers, Dowson Turco Lawyers, Carrol & O’Dea, HFW Australia, Hall & Wilcox and Gadens contacted LSJ about various fundraising campaigns, most of which include vows by the firms to match staff donations. Members of a Facebook group
NSW at the start of January to formulate a state-wide pro bono assistance capa- bility. The resulting Disaster Response Legal Service NSW was announced today, offering bushfire victims access to free legal advice and services via the help line 1800 801 529. Tim Leach, Executive Director of Community Legal Centres NSW (CLCNSW), said he was grateful and impressed by such swift action and good- will from the legal community in NSW. “There has been a hugely impressive display of support from all areas of the legal sector, lawyers have really come together,” said Leach. “Offers are coming in every day from firms and individual willing to assist our community legal centres pro bono. Leach said most CLCs operated on skeleton staff numbers over Christmas and new year holidays, but that lawyers had rallied to open their doors early in the face of increased legal needs in their communities. He said the main legal issues bushfire-impacted clients faced were related to insurance claims, ten- ancy issues arising from burnt properties or being unable to find housing, social security issues, and replacing important documents. “Will we have enough resources? Right now, it is too early to tell because right now, people are still putting out fires,” he said. “The challenge will be over the coming weeks and months. CLCNSW has not faced a crisis of this scale while I have been Executive Director.” Want to help? Lawyers and firms can offer pro bono support by following the instructions at lawsociety.com.au/bushfire-response
“There has been a hugely impressive display of support from all areas of the legal sector, lawyers have really come together.” Tim Leach, Executive Director of Community Legal Centres NSW
known as “Lawyer Mums Australia” have managed to fund and donate more than $10,000 worth of smoke mask kits to the NSW Rural Fire Brigade. Pro bono and community legal centre support There has also been an outpouring of support from NSW solicitors and firms offering pro bono legal assistance to communities impacted by the fires. Law Society of NSW President Rich- ard Harvey said a callout for pro bono volunteers, announced in January by the Law Society, drew emails from more than 200 lawyers and firms across the state offering their services. “It’s been heartening to see the gen- erous response from our state’s legal profession and the broader community in the wake of the devastating NSW bushfires,” the President tweeted. Harvey and the Law Society met with the NSW Attorney-General’s office, the NSW Bar Association and Legal Aid
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SPORT Cricketing lawyers win back- to-backworld cup victories
e Australian Lawyers Cricket team has been crowned world champions for the third time since 2009 after a win against Sri Lanka at the 7th Lawyers’ Cricket World Cup in New Zealand. e team, boasting NSW solicitors and barristers from Sydney, Woy Woy, Tamworth and Manilla, as well as barris- ters and solicitors fromQueensland, were pitted against 12 other teams from India, Sri Lanka, Pakistan, England, New Zea- land, Bangladesh and the West Indies. After seven roundmatches, the Austra- lians reached the nal against Sri Lanka – the same team they defeated to win the 2017 tournament. e Australians scored
a nine-wicket win to retain the trophy at Seddon Park in January. It was the Australians’ third world cup victory following wins at the Sinha- lese Sports Club, Colombo in 2017 and e Oval, London in 2009. e Australian team was led by captain and Norton Rose solicitor Jon Whealing, under the watchful eye of former Law Society of NSW President Ron Heinrich. All eyes are now on the next world cup in 2021. e Australian team will be hoping to make it three in a row when the tournament will be hosted by the West Indies in Trinidad.
For registration visit www.tlc.asn.au TAX & EQUITY Friday 27 March 2020 RULE 6.1 MANDATORY COMPONENTS Saturday 28 March 2020 13th Annual Fundraising Dinner 2020 For updates visit www.tlc.asn.au MCLE Seminars &Workshop FAMILY LAW Saturday 7 March 2020 CRIMINAL LAW Saturday 14 March 2020 EMPLOYMENT LAW Friday 20 March 2020 LEGAL RESEARCHWORKSHOP Saturday 21 March 2020
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COMMUNITYWORK Surfing lawyers hang ten with local Indigenous school
For the full round-up of Law Society advocacy, see page 66.
BY KATE ALLMAN
Improving effectiveness of the Consumer Product Safety System The Business Law Committee contributed to a submission to the Treasury in response to the consul- tation regulation impact statement ‘Improving the Effectiveness of the Consumer Product Safety System’. The committee noted the deficiencies identified in the current product safety system by the 2017 Consumer Affairs Australia and New Zealand review of the Australian Consumer Law. It supported the recommendation for the introduction of a General Safety Provision. Review of the Independent Planning Commission The Environmental Development and Planning Committee contributed to a submission to the NSW Productivity Commissioner’s Review of the Indepen- development independently of other NSW government agencies. The independent evaluation of such major development is an important part of the planning system. Draft Proposals: Consent in relation to sexual offences The Criminal Law Committee contributed to a submission on the NSW Law Reform Commission’s draft proposals on consent in relation to sexual offences. The Law Society raised concerns that, if implemented, the proposals may result in lengthier trials, more potential for appeals and retrials, and an increased focus on the conduct of the complainants during sexual assault trials. It submitted the proposed legis- lation is unnecessarily complex, some of the provisions are too broadly drafted, and the amendments do not add clarity. dent Planning Commission (IPC). The Law Society submitted it is in the public interest for the IPC to be maintained to assess state significant
Students of Redfern’s Jarjum College enjoyed their annual dose of vitamin sea with the Australasian Lawyers Surfing Association (ALSA) at Bondi beach in December. The annual “Surf-A-Bout” with Jarjum College is a Christmas tradi- tion sponsored by ALSA every year. A volunteer Sydney division of surfing solicitors and barristers treats the entire school to lessons with surf school Let’s Go Surfing, then hosts a beach barbeque at North Bondi surf lifesav- ing club for lunch. Matt Smith, the Principal of Jarjum College, said this year’s event attracted record attendance by the students. “Many of these kids come from disadvantaged backgrounds and their family situations are complex. It can be difficult for them to make it to school, even on a normal day,” Smith said. “The ALSA surfing day is a huge treat. Many of the students would rarely otherwise see a beach.” The idea to sponsor surfing lessons for local Indigenous communities was originally conceived by ALSA member, and Australia’s first Indige- nous silk, Tony McAvoy SC. McAvoy and the surfing lawyers have hosted an annual charity surfing day since 2010, forging a bond with Redfern’s Jarjum College in recent years. Matthew Warburton, the President of ALSA and Founder and Director of his own legal practice OUT.LAW, said that charity work was a prime focus for ALSA and its 400-plus volunteer members across Australasia. “The most encouraging part of our organisation’s work is the charitable arm – which is something we take seriously at ALSA,” said Warburton. “Surfing and the law are what brings us together, but many of our mem- bers also want to give back to the community. The Jarjum surfing day presents an opportunity to do that.” For more information on ALSA and to register as a surfing lawyer for free, visit surfinglawyers.com.au
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