LSJ February 2021

A newgeneration The legal technology to help your practice thrive in 2021 Supreme selection Is Australia’s high court really as apolitical as it seems? Madame President Why Juliana Warner has climate and diversity on her mind Insolvency overhaul The reforms to cure the COVID woes of Australian businesses

ISSUE 74 FEBRUARY 2021

Killer genes Access to genetic material has seen a wave of cold cases solved across the globe, but at what cost to privacy?

PLUS: UPDATES ON SUPERANNUATION, MIGRATION, CRIMINAL LAW & MORE

Curated by a team of over 50 Australian legal professionals, LEAP clients enjoy the ability to:

Access accurate information quickly with an extensive library of commentaries and reference materials featuring relevant legislation, cases and procedure.

Easily produce documents that automatically merge with LEAP data with over 5,500 integrated precedents.

Work with confidence or expand practice areas with matter plans for all common areas of law, providing practical commentary and precedents in sequential order.

Exclusive integration with

For more information about By Lawyers visit: leap.com.au/by-lawyers

Contents

26

34

38

Features

24 Hot topic A COVID-19 vaccine is coming, but just how mandatory will it be? Kate Allman looks at the law 26 Lunchwith The 2021 President of the Law Society of NSW Juliana Warner sits down for lunch with Kate Allman 28 Cover story Can family trees help crack cold cases? Amy Dale explores a new branch of criminal detective work

34 New year, new legal tech Robo-lawyers, AI, apps and auto- billing: Sam McKeith highlights the latest legal innovations 38 Who’s judging our judges? Kirrily Schwarz compares the quiet process of Australian High Court appointments with the highly politicised US system 46 Mindset You’ve heard the term “growth mindset”, but just how can you achieve it? Angela Heise writes

50 Extracurricular Remote farmhand or city lawyer: why not be both? Lawyer Alexandra Long proves it is possible 52 Sleep to succeed Angela Tufvesson shines a light on the health and performance risks of chronic insomnia 56 Travel Explore regional NSW with a guide to the outback capital of Broken Hill, then savour an o¡-grid digital detox at a Tiny Holiday house

ISSUE 74 I FEBRUARY 2021 I LSJ 3

60 70

Regulars

Legal updates

6 From the editor

66 Advocacy

81 Risk

A round-up of the latest developments in advocacy and law reform

Drafting more e‡ective preliminary client agreements

8 President’s message

82 Employment

10 Mailbag

70 Opinion

Federal Court divided on which workplace ‘complaints‘ give rise to adverse action

Is the government’s plan to tackle underperforming super funds a backward step?

14 News

23 Expert witless

84 Costs

72 Commercial

A guide to the pros and cons of alternative fee arrangments

23 The LSJ quiz

Your essential overview of the national insolvency reforms

44 Career matters

86 Superannuation

75 Criminal

Super death benefit claims where there is no binding nomination

46 Mindset

New protections for people experiencing sexual and domestic violence explained

49 Career coach

88 Compliance risk

78 Criminal

All you need to know about the end of dual regulation in immigration law practice

52 Health

An overview of the forthcoming changes to mental health and criminal law legislation

60 Youwish

90 Case notes

62 Books and lifestyle

80 Taxation

The latest notable High Court, Federal Court, NSW Court of Appeal, NSW Court of Criminal Appeal, Family Court and elder law & succession judgments.

Trusts, property and stamp duty – the NSWCA sets the record straight

64 The case that changedme

106 Avid for scandal

4 LSJ I ISSUE 74 I FEBRUARY 2021

A word from the editor

W elcome to the rst edition of the new year. A few early wobbles aside, 2021 is shaping up to be a little less dominated by COVID woes – though I am reluctant to speak too soon. Amy Dale’s cover story on the growing power of ancestry websites and genetic material in cracking long-unsolved cold cases is a fascinating diversion from COVID’s ongoing in uence.

ISSN 2203-8906

Managing Editor Claire Cha˜ey

Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy

While Australian investigators are yet to fully embrace the evi- dentiary opportunities o ered by ancestry websites, on which scores of genetic material can be stored and accessed, the American exam- ple shows just how useful these sites can be. Pressing questions are raised, though, in terms of how the law must tackle issues around ethics and privacy, to name a few. In other news, this edition’s Dressed to Impress section on page 48 will be the last. We have heard you, dear readers – you don’t love it. And while our intentions were good and we certainly can’t please everyone, a few too many of you let us know you wanted it gone. So, thank you to all those brave enough to strut their stu in our pages, and thanks also to those who sent in feedback. We value your contributions.

Online Editor Kate Allman

Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Acting Advertising Sales Account Manager Eden Caceda Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2021 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 o§cial 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.

Claire Cha ey

Contributors

Scott Donald Opinion p70

Jane Sanders Criminal law p78 Jane is Principal Solicitor of The Shopfront Youth Legal Centre and a member of the Law Society’s Criminal Law Committee. Here, she looks at cognitive and mental impairment in criminal law and what’s new with section 32.

Amy Dale Cover story p28 Amy is a journalist at LSJ . She has previously worked in government social policy and media relations, as a court reporter, and is a published true crime author. This month she investigates a new trend in ancestry websites cracking cold cases.

Kirrily Schwarz Feature p38 Kirrily is a Young

27,100 * *AUDITED MARCH 2019 DISTRIBUTION

Scott is an external consultant, Herbert Smith Freehills, and Director of the Centre for Law, Markets & Regulation at UNSW.He examines the potential ramifications of the government’s plans to address super fund underperformance.

Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue she asks why appointing new High Court justices does not dominate headlines like the highly politicised US system.

Anewgeneration The legal technology tohelp yourpractice thrive in2021 Supremeselection IsAustralia’shighcourt reallyasapoliticalas it seems? MadamePresident WhyJulianaWarnerhasclimate anddiversityonhermind Insolvencyoverhaul The reforms tocure theCOVID woesofAustralianbusinesses

ISSUE74 FEBRUARY2021

ISSUE74 FEBRUARY2021

Killer genes Accesstogeneticmaterialhasseenawaveofcoldcases solvedacrosstheglobe,butatwhatcosttoprivacy?

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

PLUS: UPDATESON SUPERANNUATION,MIGRATION,CRIMINAL LAW&MORE

Cover design: Alys Martin

LSJ_Cover_FebFinal.indd 1

28/1/21 8:56 am

NEXT ISSUE: 1 MARCH 2021

6 LSJ I ISSUE 74 I FEBRUARY 2021

Getting even better with age… Takes positivity, curiosity, continuous learning, and committed effort to stay ahead of the curve.

Celebrating 20 years of cabenet legal software innovation.

State-of-the-art web design and technology, certified compliance, and outstanding online user support. Experience the future of legal practice management today.

No complex installation or hardware requirements, flexible monthly subscription with no lock-in contract period.

Book an online demonstration www.cabenet.com.au

Shedding light on legal costs for over 30 years

Bespoke Costs Mediation

All legal costing services

Expert evidence

ISSUE 74 I FEBRUARY 2021 I LSJ 7

President’s message

I am so proud to serve as your President in 2021. Our Law Society is a wonderful institution which exists to serve the solicitors of NSW, to amplify their voices; to develop policy and advocate for change for the bene t of society; and to o er leadership and support to every solicitor in this state. I hope my priorities for this year will further those objectives. 2020 was certainly a year like no other. Our profession responded exceptionally well and, notwithstanding the e ect on our practices, the quality of our service to clients was im- pacted as little as possible. Our challenge now is to take the best from our pandemic experience and capitalise on it for the bene t of our clients, our practices, and for each of us as pro- fessionals. is will be one of my rst priorities. I also want to raise the pro le of the profession and highlight the immense social good that solicitors undertake in our communities. rough the Society’s ought Leadership program, I want to explore some of the complex Environmental, Social and Governance (ESG) issues that are becoming increasingly important to many businesses and cover several legal areas: governance, human rights, environmental and climate law, investigations and regulatory compliance. e legal landscape is changing very rapidly in relation to ESGs and, as lawyers, we need to understand what is happening. I also want to champion diversity and inclusion in the legal profession. It’s about getting people from all sorts of backgrounds into the profession, onto the bench and holding positions of leadership. It’s about ensuring our profession is best placed to serve our vibrant and diverse citizenry. And it’s about having a broader vision of what success looks like and ensuring all solicitors feel part of our profession and can thrive in the law. I am also keen to further develop resources to help law

practices and legal teams create and sustain disability con dent workplaces. About six per cent of our membership tells us they have a disability – we need to ensure their skills are fully realised and that our workplaces can sustain this. My charity for this year is the research arm of Dementia Australia. Like many Australians, I have witnessed the devastating impact this disease has on those living with dementia and those caring for them. Investing in research into dementia will ul- timately help minimise its impact in the future and I hope to use my time as President to raise awareness of this misunderstood disease and raise vital funds for research. I am really looking forward to the year ahead. I hope to connect with as many members as I can, to visit as many regions as possible, and to see as many of you as possible connecting with the Law Society through our CPD program, ought Lead- ership series, FLIP initiatives, committee work or otherwise through social activities.

Juliana Warner , President, Law Society of NSW

8 LSJ I ISSUE 74 I FEBRUARY 2021

PRIVATE OFFICE FOR YOUR FIRM 4 MONTHS FREE

*

OFFICES FROM $700/M

FLEXIBLE START DATES

JOIN OVER 400 LAW FIRMS

LIMITED SPACES AVAILABLE SPEAK WITH A WORKSPACE ADVISOR TODAY

*T&Cs APPLY: 4 MONTHS FREE ON A 12 MONTH AGREEMENT, NEW MEMBERS ONLY

ENQUIRIES@CPOSYDNEY.COM.AU 1300 210 831

Mailbag LETTERS TO THE EDITOR

costs claimed as well as small- er and less reductions in costs if more solicitors complied ful- ly with the requirements of the legislation. The fact that these are complex and sometimes di…cult to implement is not the fault of assessors or the costs assessment system. The blame for this must be sheeted home to our legislators. Chris Plummer I like to think that I remain aware of the privileges that my parents’ university education (not in law) have aŠorded me, and endeav- our to practise gratitude in my daily interactions. Against that background, I found the con- cluding statement of the article “A Profession for the Wealthy?” (December LSJ ) somewhat jarring: “Do people from high socio-economic status back- grounds have the same rapport with clients? I don’t think so.” Empathy and non-judgment are not exclusive to a chosen few. Andrea Sun Class does not a ect empathy Having been in practice for more than 50 years, may I warmly welcome and congratulate the young lawyers who featured in your article “A Profession for the Wealthy?” (December LSJ ). Because of their back- grounds and experiences, their contribution to the profession, in my respectful opinion, will be invaluable bringing with them an understanding and accep- tance, not to mention diversity, in the practice of law all too of- ten lacking in those of my gen- eration. Certainly, due to their cir- cumstances, they’re less likely than not to have had a sense of entitlement than others more fortunate. And young Jason O’Neil may be interested to know that the current Chief Justice of the High Court studied with the Le- gal Profession Admission Board, along with many others who’ve Welcome to a new, diverse generation

since been appointed eminent judges, attorneys-general and cabinet ministers to mention just a few roles – bearing in mind that some who study the Board course do so because of their less than desirable if not challenging situations … literally. Edward Loong Not so classy The point, much less the utility, of the LSJ article “A profession for the wealthy” (December LSJ ) is hard to reckon. The arti- cle is long on assertion, short on evidence and fundamentally factually incorrect. The article asserts in its opening “statis- tically speaking, most lawyers in Australia come with pockets lined by wealthy families and relatively privileged back- grounds”. This is despite the article later confessing “there is no published data about the socio-economic backgrounds of practising lawyers across Australia.” Leaving aside the debate of whether diversity, whatever that means, is a good thing, rudimentary analysis of the premise of the article reveals that it falls well short of anything like the reality. The makeup of the firms in the regional town in which I practise exposes the fallacy of the article. I conducted a survey of the secondary edu- cation of solicitors in my town. Not everyone participated. Six attended private school in Sydney and three attend- ed regional private schools. Six attended regional public schools and eight attended Sydney Public Schools. Three were born in countries other than Australia and migrated to Australia as adults. One person surveyed did not complete High School. Solicitors surveyed had prior careers as shearers, journalists, union officials, publicans, teachers, nurses, secretaries, book keepers, and cleaners (me). On this score alone the article is wrong. LSJ should avoid pushing its agenda but at the very least, if it wishes to do so, get its facts right. Toby Tancred

Findingthesilver linings Whatpositivescan the theprofession take from thepandemicdisaster? Buildingculturefromafar Howcanfirmsbuildandmaintain strong cultures in theeraof remoteworking? Upholding integrity DoesAustralia reallyneeda federal anti-corruptioncommission? Thecostsof2020 Awrap-upof themost important costsupdates throughout the year

Wrong idea about costs assessment I don’t have an answer to Bren- dan Manning’s question in the December LSJ as to why costs assessors “always appear to reduce costs by no less than 10 percent”; but I do have a few comments on his letter. I have been an assessor and review panelist for more than seven years and I can understand some of the criticism levelled at assessors and the costs assessment system from time to time. However, with respect, Mr Manning’s letter and the question posed in it appear to be based on a false premise and a misapprehension about the relevant legislation. Assessors have no power “to Increase the costs payable by a client” and they cannot “unilat- erally reduce the costs on any solicitors’ bill when an applica- tion is made for costs.” The leg- islation only empowers asses- sors to assess the costs in the bill presented for assessment. It also requires them to allow all parties to be heard and to consider any submissions in accordance with the requirements of procedural fairness. If there is a failure in this regard the option of review or appeal is always available. While costs can never be increased, if compliant disclo- sure has been made in solici- tor/client matters all the costs claimed by the solicitor will be allowed if the charges accord with the costs agreement. Of course, this does not apply in party/party matters where dif- ferent considerations apply and they usually commence with an ambit claim. It is axiomatic that matters presented for assessment will inevitably arise out of a dispute as to costs. In this context and given the costs of the process it is not surprising that most contested applications proba- bly result in some reduction of the costs claimed. The unfor- tunate fact is that in solicitor/ client matters there would be more allowances of the total

ASSOCIATIONMAGAZINE OFTHEYEAR BUSINESSCOVER OFTHEYEAR

ISSUE73 DECEMBER2020

ISSUE73 DECEMBER2020

A class act Doesthe legalprofessionneedmore socio-economicdiversity?

PLUS: UPDATESONEMPLOYMENT,TECH,CLIMATECHANGE,ELDER LAW&MORE

LSJ_Cover_DecemberFinal.indd 1

25/11/20 4:34 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.

E: letters@lawsociety.com.au

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.

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

CONGRATULATIONS! C.C. Hagan has won lunch for four at the Law Society Dining Room. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

10 LSJ I ISSUE 74 I FEBRUARY 2021

LETTERS TO THE EDITOR

Aussies do strata badly Mr Loong’s award-winning letter (December LSJ ) demon- strates that he does not or has not experienced living in a strata community (and I use the word ‘community’ advis- edly). Or perhaps Mr Loong has been extraordinarily lucky. I have served on strata com- mittees in two buildings and can say from this limited expe- rience that neither common sense nor prudent discretion was exercised in either case. I also have experience with the equivalent of strata manage- ment in Europe and the USA where common sense and dis- cretion are applied. Australians, it seems, have a lot to learn about tolerance, consideration for others and good manners when living in close quarters. Perhaps then common sense and discretion will prevail. I’d also like to applaud Jane Mack for her “Ditch the unfash- ionable fashion” letter. Jane has expressed what I’ve been

thinking but, as I find it more amusing than the last page “Legal Funnies”, I’ve refrained from comment. The lawyers participating clearly don’t take themselves seriously, which at one level is a good thing, but not for me when I’m looking for advice or representation. Christopher Barnard Never too old for good manners The solicitor acting for the other side in one of my mat- ters is one of the nicest solic- itors I have ever dealt with. The first email I received from him started o˜ a little like this: “Hi Alexia, I hope you’re having a good day”. It was a very pleas- ant greeting compared to the few “Dear Sirs” that had been thrown my way earlier that day. In another email, he included a smiley face emoji, and boy did that put a smile on my face. “Ah, he must be quite young” I thought, and looked him up on the Law Society website. Ad-

mitted in 1983 (the year I was born)! Here was a (likely) 60-some- thing-year-old solicitor keep- ing up with the times, discard- ing ancient norms – that he had probably accepted as the correct way to do things for many years – and just being a really good, kind, and e§cient solicitor. Every time I receive an email from him, I smile. And that’s a good thing. Alexia Ereboni Yazdani The Honourable Chief Justice Tom Bathurst AC’s opening of law term address to the NSW Parliament was reproduced in the March 2020 Law Society Journal (Issue 64 – p22) as an article entitled: “The Law and Society’s Moral Conscience”. Yet a striking observation made by His Honour is highlighted in large type: “While this notion of ‘conscience’ has a unique historical connection with Does our law exist in a moral void?

equitable principles developed by the Court of Chancery, it is sometimes used as a metaphor which can be applied to the law more broadly.” Does this sug- gest there is no foundation for the notion of conscience – a moral void? A tension lies between faith- based principles and secular existentialist-based principles. An exemplar of the secular viewpoint was portrayed by Nobel Laureate Francis Crick (of Watson & Crick fame) in his book of the same name, The Astonishing Hypothesis , which, in essence, proposed that all aspects of the brain’s behaviour (including morals and conscience) were due to the activities of neurons, which in turn arose from evolution of the brain. The faith-based view might be that every faculty of the brain that is meaningful to life, including conscience, can- not be the accidental ‘origin of life’ story that Darwin pro- posed, namely, that in

Leverage your profession and access exclusive bene fi ts when applying for a home loan

Garments Of Integrity For Gentlemen Of Character

LAW SOCIETY MEMBERS RECEIVE $500 CASH BACK ON ALL SETTLED LOANS

Contact us today

(02) 9030 0420 enquiries@legalhomeloans.com.au www.legalhomeloans.com.au/corporate-partners

mjbale.com

ISSUE 74 I FBRUARY 20210 I LSJ 11

Mailbag LETTERS TO THE EDITOR

some warm little pond a microbe emerged that eventually would evolve into a Chan- cery judge. Indeed, Darwin was unaware of molecular biology. Moreover, Crick’s other partner in biology, Prof. Leslie Orgel, the fa- ther of the leading origin of life theory ‘RNA world’ (that self-replicating ribozymes pro- duced life), referred to that ‘leading theory’ as “The Molecular Biologist’s Dream” and later his stronger criticism was published in a posthumous paper. Nor can a faith-based origin solve all problems. The famous Greek Philoso- pher Plato wrote via a dialogue of Socrates asking Euthyphro whether the pious was holy because it was beloved by the gods or because it was holy. For instance, taking the 10 commandments – are they ethical because God says so, or are they ethi-

cal in themselves alone? Later, the great philosopher Kant saw no virtue in ‘divinely enforced’ laws, preferring a universalist test principle by asking of any conduct: “What if everybody did that?” In a way, Kant was attempting to encode “society’s moral compass”. But the project to define all the instances of right and wrong that emanate from conscience has also been attempted by many literary masters in an endeavour to decipher the elusive human mindset. The result? There is no frozen set of rules. So, whether you argue our conscience is a relic of God’s creation or a relic of evolu- tion, the problem appears to be the same. A spectrum from “killing is wrong” down to “illegal parking” mixed with moral dilem- mas reflects the “reasonable woman’s con- science” just as the law has embraced what

THE RIGHT PATH IS NOT ALWAYS CLEAR Our Professional Support Unit can show the way Contact our experienced solicitors for con dential guidance on ethics, costs and regulatory compliance. lawsociety.com.au/psu

“Very interesting read and really resonated with me! I think there’s also something to be said about the imposter syndrome and self-doubt that comes with dipping your toes into the world of big law when you’re from a working class background and you’ve finally made it through uni.” – Zoe Caldwell, LinkedIn “Financial pressures (and shame) stopped me completing my LLB many years ago. I was still more privileged than many – I had two jobs, received part youth allow- ance and lived alone – but it was bloody hard. Thanks for telling these stories.” @beyondbeeton, Twitter

“Such an important topic!” – Maria Veiszadeh, Twitter

“Interesting read! The longstanding issue of diversity in law is yet to be addressed and understood by the profession.” – @zoe_hussaini, Twitter

“This is so important and good to know some law schools are looking beyond the ATAR score. Thanks @kateallman_” – @VickiLMullen, Twitter

12 LSJ I ISSUE 74 I FEBRUARY 2021

We’ve combined up to $200 million in capacity and an international team with dedicated claims specialists.

the reasonable man would have done. So how do we resolve this tension be- tween faith and no faith principles given the 2016 census saw our society evenly divided into faith (52.1 per cent) and no faith (47.9 per cent)? First, the secular or humanist position of Crick that our morals exist but through the accidental process of evolution, albeit ambiguous in terms of principles, is a de facto work in prog- ress. Second, Lord Denning, one of the greatest judges in our legal history, ac- knowledges the influence of Christianity in shaping our law. A prime instance, the ‘Golden Rule’ – love thy neighbour as thy- self – is present in many major religions and spiritual cultures. Thus, to prevent a moral void, the fusing of the common ground between secular conscience and

faith-based conscience should be a guid- ing light to courts to bolster and decipher the moral conscience of society in the applicable unwritten law as it develops in Australia. C.C. Hagan, Solicitor, Sydney Unfashionably unfashionable I agree with Jane Mack in her letter in December LSJ headed “Ditch the unfash- ionable fashion”. Dressed to Impress is not a good look for the journal, however good the lawyers look. Also, although I assume many members like to read the travel notes, I do wonder whether it is proper to give a full page to Bannisters by the Sea, which gives free publicity to a particular establishment. Bill Windeyer

We work with our clients to overcome challenges. Themore risks we take o the table, themore deals you can keep on it. Liberty Global Transaction Solutions is a leader in M&A insurance because of our strongworking capital, deep industry experience, and integrated approach. To learn more, go to LibertyGTS.com.

© 2020 Liberty Mutual Insurance

ISSUE 74 I FBRUARY 20210 I LSJ 13

Briefs NEWS

LAWREFORM ALRC launches probe into judicial bias

BY KATE ALLMAN

Former High Court Justice Michael Kirby called it the “double-might” principle. That is, what might a person who is sitting in the back of the court, think that a judge might be influenced or biased by?

Any relationship, interest, or a nity with a case that could appear question- able in the lay observor’s mind should be declared, the former justice told LSJ . Where appropriate, judges should self-exclude themselves from cases. But this rule is not always adhered to in the eyes of the public, according to recent media reports about an erosion of trust and con dence in Australia’s federal court judges. One high-pro le complaint against a Family Court judge by a Perth-based real estate agent made its way to the High Court in August, re- vealing a judge and barrister in Western Australia were meeting for “secret” cof- fee and drinks while his case was under way, drawing criticism from members of the public. e complaint will likely form part of submissions to a national review into federal judicial impartiality and bias, launched by the Australian Law Reform Commission (ALRC) in Sep- tember. e review will consult widely with the legal profession and courts in considering the strength, clarity and e - cacy of laws about actual or apprehended bias among judges. “It is a fundamental principle of our legal system that a judge or magistrate must not sit on a case in which he or she is biased (‘actual bias’) or might rea- sonably be thought to be biased (‘appre- hended bias’),” Federal Attorney-Gener- al Christian Porter said when he referred the matter to the ALRC in September last year. “ is is clearly important both so that justice is not only done but also seen to

bling sexual harassment claims against former High Court judge Dyson Hey- don were investigated and upheld inter- nally in 2019. Former Justice Kirby told LSJ he be- lieved Australia did not have problems with a biased judiciary “on the whole”. “Judicial impartiality is one of the core values of being a judge. I think Aus- tralia has a healthy degree of scepticism about authority and is watchful of issues like this. But on the whole, I think our judiciary is fairly rigorously impartial,” he said. “In my role as co-Chair of the Inter- national Bar Association Human Rights Institute, we are dealing every week with complaints about corrupt governments, parliaments and biased courts. Austra- lia does not often feature as a subject of complaint.” Former Justice Kirby added that, re- gardless of what – if any – change the review would bring, it would contribute to public awareness and the “zeitgeist” around judicial impartiality, which is important. “Judicial impartiality is a concept that evolves in understanding over time,” he said. “We in Australia should be able to acknowledge that, following our long history of treating people without im- partiality – such as women, Indigenous people, LGBTIQ people and other reli- gious or social groups.”

be done. ere are well established tests for actual and apprehended judicial bias but how these are applied can vary de- pending on the actual situation.” e ALRC published a report in De- cember noting its previous Family Law Inquiry had received a surprising num- ber of complaints that indicated a lack of trust from members of the community about judges in the federal court system. “Of the 732 contributions, 504 included a complaint relating to the Family Court of Australia system and procedures. 236 contributions involved a complaint speci cally in relation to a judicial o cer,” the report reads. e review will also query whether mechanisms for raising allegations of bias are su cient and appropriate. It comes in the wake of calls for an inde- pendent body to be established to hold powerful judges to account, after trou- “It is a fundamental principle of our legal system that a judge or magistrate must not sit on a case in which he or she is biased ... or might reasonably be thought to be biased.” Christian Porter Federal Attorney-General

The ALRC will release a consultation paper in April and make a formal call for submissions

at that time. For any enquiries, email impartiality@alrc.gov.au

14 LSJ I ISSUE 74 I FEBRUARY 2021

NEWS

Influencer

NEWTHISMONTH Call for exhibitors: Sydney LawCareers Fair Registrations are open for the annual Sydney Law Careers Fair, to be held on Friday 26 March 2021 at the ICC, Dar- ling Harbour. is is a highlight on the calendar for the next generation of top legal talent, and an opportunity for law rms, corporates, and other exhibitors to get in front of law students and gradu- ates from an array of universities in one day, while minimising their costs. CPD courses open More than 40 live, online and in-person courses are now available to register via the Law Society’s new and improved LawInform website. Find the right course, keep track of CPD units and ful ll your practising certi cate require- ments for the new year at times that suit you. lawinform.com.au Dining Room still delivers e Law Society Dining Room will continue to prepare and send out its “Fill Me” and “Feed Me” hampers that were made popular during lockdown restrictions of 2020. e menu changes weekly, with delights like Atlantic salm- on, slow roast lamb or vegetarian roasts having all made an appearance. is year, pro ts will support the 2021 Pres- ident’s Charity, the Dementia Australia Research Foundation. Place your order at lawsociety.com.au/diningroomde- livers Free mental health seminars Join psychologist Ahelon Annathurai from PeopleSense for a free, on-demand seminar discussing common mental health conditions, the impact of stress on wellbeing, and strategies to look after your mental health. is is a compli- mentary seminar o ered by the Law Society of NSW as part of our Staying Well in the Law webcast series. Register at lawsociety.com.au/events/events-cal- endar/mental-health-awareness

by

Julie Inman Grant Australia’s eSafety Commissioner

Shouldn’t we expect that the technology companies systematically deploy virtual seatbelts to protect our children from the darkest recesses of the web?

ISSUE 74 I FEBRUARY 2021 I LSJ 15

Briefs NEWS

What does the role of a court stenographer entail? We’re there to provide a high-quality, accurate, verbatim record of court proceedings. We also need to conform to client requests, style guidelines and service level agreements. Most of my work is real time, so I provide a transcript you can see as it’s happening in court. It enables instant access to the transcript which counsel and the judges can view, search and annotate. We work under pressure in di erent environments and jurisdictions and there’s often a high degree of con dentiality. A speed of 225 words a minute is required to cope with the pace. We also need a good command of English grammar, general knowledge, common Latin phrases that are used, and legal terminology. Royal Commissions and government hearings. Grossmann shares her insights with FLOYD ALEXANDER-HUNT . Cheryl Grossmann is a court stenographer with over 38 years of experience in every jurisdiction in South Australian courts, as well as Federal jurisdictions, mediations, sixminuteswith CHERYL GROSSMANN

Why did you pursue a career as a court stenographer? I was working at Parliament House in Adelaide and saw a steno in action. Luckily, an opportunity came up for me to join the course. It took me two years before I was fully functional in the courts. I started in 1980 and it’s changed so much since then. Previously, the steno machine recorded our notes on a piece of paper and then we had to manually type it out. When computers came in, it all changed very rapidly. What have been the most interesting cases you’ve worked on? I’ve worked on Royal Commissions and high-pro le murder trials. No day is ever the same. I did work on the pelvic mesh implant case in Sydney, which I found interesting. ere was a lot of specialist evidence in that case. I also worked on a trial that has become a High Court authority, so it often comes up. What have you learnt in the role? I’ve learnt about a wide range of subjects from experts in fo- rensic science, DNA, ballistics, medical practitioners and specialists, psychiatric and psychological evidence, car crash reconstructions, company structures, white collar crime and even wind farms. I’ve also learnt to develop coping strategies because sometimes the cases are quite distressing. As a stenog- rapher you can’t show any emotion. You have to remain com- pletely impartial because you’re there for the court. What are the biggest challenges? Strong accents, foreign names and if two or more people speak at once. Often witnesses are very nervous and speak really quickly and not clearly. I’ve had weeping witnesses and I haven’t liked saying “could you repeat that?”

How does the stenotype machine work? e steno machine is digital and connects to a laptop which has the software program built in. It’s like a small keyboard but it doesn’t have all the letters of the alphabet. It’s based on phonetics and you can hit the keys simultaneously. If you had the word “rough” you would hit the letters “RUF”. It then matches it up to our dictio-

nary which converts everything into English. Sometimes it’s not going to come out phonetically, so we need to nger spell which requires typing every individual letter. ere’s a system for doing that which slows you down. It’s a bit like playing the piano. ere’s not every letter of the alphabet on the keyboard so we press combinations of letters to form di erent sounds. ere’s no letter “N” so we have to press three keys to make an “N” sound.

16 LSJ I ISSUE 74 I FEBRUARY 2021

NEWS

DISASTER RELIEF New bushfire support scheme

Private solicitors wanting to help farm- ers and small businesses struck by 2020’s devastating bush re season can now access government funding to pro- vide legal services. Under the Bush re Legal Aid Scheme – with funding allocated by the federal government – an Early Resolution Assis- tance of up to $2,000 is available in pro- fessional fees for a range of legal issues including banking, insurance and con- tract disputes, credit and debt, commer- cial leases, planning and building law, and entitlements to government grants. To be eligible for this support fund- ing, an applicant must be a primary producer or small business owner, have their farm or business located in a des- ignated LGA, and a legal issue arising from the 2019/2020 bush re season. If someone has experienced more than one

bush re-related issue, they may receive multiple approvals for legal services. Legal Aid has said funding exten- sions will also be available in “reasonable circumstances”. Firms acting on a pro bono basis for clients who qualify for this Scheme can also apply for disbursements of up to $5,000 through Grants Online. Regional Legal Aid solicitor Kyrie Couch told LSJ in 2020 of attending community meetings in the Port Mac- quarie area, where many had lost every- thing, that there was “a blatant state of shock and not knowing where to start is how they present to legal services”. Last year, the Disaster Response Le- gal Service NSW, a partnership between Legal Aid, the Law Society of NSW, community legal centres, and the NSW Bar Association, was launched to o er

free legal advice to those a ected by the deadly bush re season. Legal Aid’s disaster response service has also operated across NSW since 2010. is service provided legal assistance throughout the bush re season for peo- ple navigating insurance claims, tenancy issues, nancial hardship, social security entitlements and employment issues. Private practitioners need to be reg- istered for Legal Aid NSW’s Grants Online website to make an application under the Bush re Legal Aid Scheme. e list of eligible LGAs is available at: legalaid.nsw.gov.au/for-lawyers/resourc- es-and-tools/bush re-legal-aid-scheme.

For more information on the scheme email: disaster.response@legalaid.nsw. gov.au

ISSUE 74 I FEBRUARY 2021 I LSJ 17

Briefs NEWS

WORKPLACE CULTURE Can ‘Trust Tech’ help firms eradicate sexual harassment?

Innovations that enable employees to anonymously report workplace sexual harassment have been lauded as poten- tial game-changers by the International Bar Association (IBA), in a report inves- tigating the bene ts of “trust technolo- gy” in legal workplaces. e paper on Innovation-Led Cultural Change outlines the traditional mecha- nisms and limitations of law rm report- ing models, which have generally required employees to speak up in person or via email or phone to human resources sta . It comes o the back of the IBA’s landmark 2019 Us Too? report on sexual harassment and bullying in the legal profession, which found one in three female lawyers and one in 14 male lawyers had been sexually ha- rassed at work, and that 75 per cent of vic- tims would never report the harassment. e new IBA report asserts that prod- ucts like Talk to Spot, an arti cial intel- ligence software that can gather sensitive information from employees and feed it anonymously through to human resourc- es sta , are giving employees more con - dence to report misconduct. Mobile apps like Vault Platform simplify the process of reporting incidents, and encrypted platforms like Elker could make reports and case management fully anonymous. “ e dearth of reporting incidents of workplace misconduct is sometimes attributed to ‘ rst-mover disadvantage’: targets do not want to be the rst one to come forward for fear of retribution or being dismissed as fabricating the inci- dent,” the report reads. “If the lesson from #MeToo is safe- ty in numbers, then technology which makes use of information escrows may result in higher rates of reporting and engagement.”

is still limited on that front. Indeed, the most recent Australia-wide data on workplace harassment came on 5 March 2020 with publication of the Australian Human Rights Commission’s Respect@ Work report, two weeks before the na- tional COVID-19 lockdown. One survey conducted in the UK by Rights of Women found there had been no increase in harassment behaviour amid the pandemic, but that remote work was making it more di cult for victims to report and seek justice. Half of women being subjected to workplace sexual harassment said it had transi- tioned to take place remotely, with per- petrators nding new ways to abuse their victims via technology. Experts from the Monash University Business School also told e Sydney Morning Herald in June that working from home could reduce opportunities for incidental observation of inappropriate behaviour and early in- tervention by supervisors or bystanders. “E ectively addressing inappropriate behaviour within law requires a jigsaw puzzle approach,” said Kieran Pender, a co-author of the IBA report and Senior Legal Advisor who led the Us Too? cam- paign by the IBA throughout 2019. “ ere is no one solution, no silver bullet. Instead, we require a range of in- novative solutions that can change the culture that facilitates bullying and sex- ual harassment and empower targets to speak up when it does occur. Trust Tech is one piece of the puzzle – and an inno- vative and exciting puzzle piece at that.” e report recommended Trust Tech could be an e ective tool to add to law rms’ arsenals in the battle to eradicate sexual harassment but that it would not be a cure-all panacea.

Discussion Paper

Innovation-led cultural change: can technology effectively address workplace harassment?

Emma Franklin andKieran Pender Legal Policy&ResearchUnit, International BarAssociation

November 2020

e report does not discuss the im- pacts of COVID-19 and whether work- ing from home amid the pandemic has seen an increase or sti ing of workplace harassment claims. Given the unprece- dented nature of legal practice changes over the past year, it appears research one to come forward for fear of retribution or being dismissed as fabricating the incident.” “ e dearth of reporting incidents of workplace misconduct is sometimes attributed to ‘ rst-mover disadvantage’: targets do not want to be the rst

18 LSJ I ISSUE 74 I FEBRUARY 2021

NEWS

MIND YOUR

BY LINDEN BARNES, SENIOR ETHICS LAWYER

Q: What are the ethics behind “Let’s kill all the lawyers”?

A: We certainly can question the ethics of anyone who throws that quote at us, aiming to hurt. However, I suspect that most people who bandy it around are unaware of its context – that it is said by someone of questionable character advo- cating the overthrow of institutions does put a rather di erent spin on it. And how does this relate to our daily professional ethics? Well, rst, Shake- speare arguably was defending our profession, not undermining it. More prosaically, it shows how misleading a

statement can be, which is a constant ethical dilemma put to me by callers to the ethics line. How often, when we reconsider what we have put forward on behalf of our client, do we wonder whether we said enough. Is what we said mis- leading without more? We might un- derstand what we meant, but will the recipient do likewise? It is vital to consider the circum- stances of the recipient. Are they a busy judge only given a snapshot of the mat-

ter? Are they a self-represented litigant who does not understand legal terms? Are they a colleague who, like us, is trained to interpret communications cautiously? My rule of thumb is as follows: • if you are worried • if you have rung the ethics line • if you are lying awake at night • it probably is misleading. Correct it and regain your sleep – “Nature’s soft nurse”, as the Bard rightly called it.

Is a Masters your next step? Choose a specialised Masters to advance your career.

STEP 1 Download

the handbook

Download handbook at collaw.edu.au/postgrad

Next intake commences 15 February 2021

ISSUE 74 I FEBRUARY 2021 I LSJ 19

Briefs NEWS

YOUNG LAWYERS NSWYoung Lawyers wins national award

e NSW Young Lawyers Human Rights Committee, a branch under the NSW Young Lawyers segment of the Law Society of NSW, has been named a joint winner of the 2020 Australian Young Lawyer Organisation Award. e NSW Young Lawyers committee received the award from the Law Council of Australia for its program “Addressing Sexual Harassment in Australian Workplaces”, which included awareness events and active bystander training throughout 2020, teaching young lawyers to identify and intervene to address sexual harass- ment in the workplace. “NSW Young Lawyers and the Human Rights Committee hopes to continue raising awareness and training the profession to remove sexual harassment from legal workplaces and create a culture in legal workplaces where sexual harassment is not tolerat- ed, and complainants are supported to come forward and report,” the committee told the Law Council of Australia after accepting the award. “We look forward to running active bystander training again next year [2021].” Fellow joint-winner, the Law Institute of Victoria’s Young Lawyers, was chosen for its program “Physically Distant, Profes- sionally Close: How to thrive in a virtual world”, launched in response to the COVID-19 pandemic. PRESIDENT’S CHARITY NewLawSociety President commits to charity close to her heart e 2021 President of the Law Society of NSW has announced the annual President’s Charity will be an organisation she has a personal appreciation for. President Juliana Warner, who took the reins at the Law So- ciety in January during a one-year leave of absence from her role as Sydney Managing Partner of Herbert Smith Freehills, told LSJ she has chosen the Dementia Australia Research Foundation as the Law Society’s fundraising bene ciary for the year. She will announce upcoming fundraising initiatives in coming weeks. “I chose it because Mum passed away after su ering early-on- set Alzheimer’s,” Warner said. “It was a horrible journey for my family. Alzheimer’s is just such an appalling disease and it a ects the family of su erers as well as the su erer. It takes away the very thing that enables people to come to terms with a terminal illness. My passion for this was reinforced by my work on the aged care royal commission.”

FAMILY LAW Family Court’s COVID-19 priority list to continue through 2021 e Family Court and Federal Circuit Court will continue to fast-track urgent family law matters under the highly successful COVID-19 list system implemented in April last year. e List was introduced during the height of the pan- demic to triage urgent family law matters arising due to new restrictions and an uptick in family violence. e Fam- ily Court of Australia reported a 39 per cent increase in matters and National COVID-19 Registrar Brett McGrath told LSJ that family court registries had been inundated with requests to vary court-ordered parenting arrange- ments – as supervised visitation centres suddenly closed and families who lived across state borders could not travel. In December, the courts announced that the COVID-19 list would continue to operate into 2021 and be expanded thanks to a Commonwealth Government investment an- nounced in the Budget in October. “With growing community concerns of increased fam- ily violence incidents and nancial stress, the Courts are pleased to announce the expansion and continuation of the COVID-19 list,” a statement released by the courts said. e statement said the COVID-19 list had received “wide- spread support and praise from community legal and sup- port services, advocates for victims of domestic violence, and the legal profession”. e courts have promised that urgent applications meet- ing the COVID-19 criteria will be given a rst return date before a National Registrar, Senior Registrar or Judge with- in three business days. Matters assessed as not urgent, but a “priority”, will be returned within seven business days.

Read the interview in full on page 26.

20 LSJ I ISSUE 74 I FEBRUARY 2021

Made with FlippingBook - Online catalogs