LSJ JULY 2020
ISSUE 68 JULY 2020
A crumbling pedestal Criticism of the High Court is growing louder, but to what end? Legal re-education Has COVID-19 forever changed the way we educate our lawyers? Lunchwith the Premier Gladys Berejiklian lets her guard down to talk about true leadership
Deaths in custody The search for answers in the face of police silence
Why lawyers must be on the front line of preventing elder abuse Thehighcost of growingold
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ISSUE 68 I JULY 2020 I LSJ 31
24 Hot topic
36 Court up in public outcry Is scathing commentary threatening the esteem of our highest court? Kate Allman writes 40 The class of COVID-19 Katie Walsh asks universities if the switch to online learning may change law schools forever 46 Mindset
Celeste Barber’s botched bushfire recovery fundraiser shows why it pays to know your charity law
Lawyer Shiranee Pararajasingham reveals how she amassed 400kg in grocery donations for Foodbank
26 Lunchwith the Premier Premier Gladys Berejiklian tells
Zara Michales serves up a fitness and eating plan to help you ditch any unwanted COVID kilos
Kate Allman how she steered NSW through its darkest days
30 Cover story
The lockdown was to protect the elderly, but is abuse now going unchecked? Amy Dale reports
Rachel Setti on how to lead by example and build a team of happy high-performers
Hanging out for the travel bubble? Plan your post-iso holiday across the ditch with Ute Junker’s guide to Queenstown
ISSUE 68 I JULY 2020 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News
80 Competition law
The latest developments in advocacy and law reform
Paying the price in sentencing for criminal cartel conduct
66 Criminal law
Time to break the silence on Aboriginal deaths in custody
Advising companies on the new personal GST liability applying to company directors 84 Costs, wills and estates A look at recent and common types of costs orders in wills and estates matters
23 Expert witless 23 The LSJ quiz 44 Career matters 46 Mindset 47 Career coach 50 Health 58 Youwish 60 Books and lifestyle 62 The case that changedme
The future of casual employment – the Full Federal Court’s decision in Rossato
72 Immigration law
86 Disability and
A look at the immigration and employment landscape in the wake of COVID-19
administrative law Lessons from the Full Federal
Court’s judgment in the NDIS ‘sex therapy’ case 88 Wills and estates
A new take on the valuation of leasehold interests in resumption of land cases
The case for a new coordinated national approach to assessing testamentary capacity
The problem of bullying in the profession; impacts, consequences and redress 78 Administrative law The High Court opens the
91 Case notes
83 Library additions 106 Avid for scandal
The latest High Court, Federal, family, criminal, and elder law and succession judgments
door in the Palace Letters saga
4 LSJ I ISSUE 68 I JULY 2020
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A word from the editor
One of the best things I get to do as LSJ editor is read our letters to the editor, most of which we run in our Mailbag section. By any measure – but especially when it comes to print magazines – we receive a lot of letters. This is great – it means you’re interested and engaged, and that you care about our content; love it or loathe it. This month’s letters demonstrate the divide that exists in our
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor
Jacquie Mancy Online Editor
community regarding climate change. There are such stark differences in terms of what people believe and, perhaps more interestingly, the foundations for their beliefs. We are in an era in which opinions are fashioned and based on, well, a whole range of sources – some of which have little if any foundation in science, evidence, or even logic. Reliable information feels scarcer, especially as the role and expectations of the media shift in troubling ways. Hopefully, though, the range of strong voices and weight of expertise featured in LSJ brings you some confidence. One article on which I anticipate some letters next month is Amy Dale’s elder abuse feature on page 30. What does it say about our society when our most vulnerable are so easily and so often taken advantage of, coerced and abused? Dale’s article delivers a sombre verdict on the grim reality of aging for so many. The profession must be alive to this issue.
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.
PENNY THEW Employment p76
JOHN CLARKE Wills and estates p88 John Clarke is Director of Clarke Law and a member of the Law Society’s Elder Law Committee. Here, he makes the case for doctors and lawyers to work together for a new, more unified approach to assessing testamentary capacity.
AMY DALE Cover story p30
KATE ALLMAN Feature p36
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 explores the growing instances of elder abuse and asks how the profession can protect their clients.
Kate is a features writer, podcast host and Online Editor at LSJ . In this issue, she analyses growing media criticism of Australia’s High Court and whether this is as sinister as it seems. Is it all hot air, or should the legal profession be worried?
Penny Thew is a barrister in Greenway Chambers
and specialises in employment and
discrimination matters. One year on from the IBA’s “Us too?” report, she examines the state of bullying and harassment in the Australian legal profession.
ISSUE68 JULY 2020
Acrumblingpedestal Criticismof theHighCourt is growing louder,but towhatend? Legalre-education HasCOVID-19 foreverchanged thewayweeducateour lawyers? LunchwiththePremier GladysBerejiklian letsherguard down to talkabout true leadership
Deaths incustody The search foranswers in the faceofpolice silence
Why lawyersmustbeonthefront line ofpreventingelderabuse Thehighcostof growingold
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.
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Cover design: Andy Raubinger
NEXT ISSUE: 1 AUGUST 2020
6 LSJ I ISSUE 68 I JULY 2020
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ISSUE 68 I JULY 2020 I LSJ 31
F rom its earliest days, the Law Society has existed to serve the profession. For many years now, that support has extended to offering services and resources to keep solicitors travelling well and thriving in practice, as well as supporting them when they face a challenge to their mental health and wellbeing. When it comes tomental health and wellbeing, the Law Society has a responsibility to lead. One of my key goals this year, well before we
had even heard of COVID-19, was to look at ways to scale up resources to promote the mental health and wellbeing of our members and ensure NSW solicitors have access to relevant support services. As we well know, the legal profession is far from immune to susceptibility to mental health distress. We also know the pressures of legal practice have become exacting, and the environment more stressful. The mental health needs of legal practitioners have also changed considerably over the years, and feedback from the profession supports the need for solicitors to have direct access to psychological counselling as well as crisis support. The launch of the Law Society’s new Solicitor Outreach Service, the subject of this edition’s lead news story, comes at a time when some members of the profession will be at heightened risk due to unpredictability about the scale, duration and impact of COVID-19, along with other factors such as the challenges of working remotely, lack of regular exercise, and restricted social engagement. While many large law firms and organisations provide support through their employee assistance programs, there are solicitors in smaller practices, especially in regional areas, who don’t have access to the mental health support that the Solicitor Outreach Service will provide. While we’ve made enormous strides in reducing the stigma around mental health in recent years, we need to remember to take the time to initiate conversations with peers about how they have been coping with the recent challenges and, without judgment, remind them of available support services if needed. We all have a role to play in supporting one another during these difficult times. Finally, I would like to take this opportunity to acknowledge the Law Society’s CEO, Michael Tidball, who, after 14 years at the helm, will depart on 31 July 2020 to take up his new position as CEO of the Law Council of Australia. I would like to thank Michael for his outstanding contribution to the Law Society, the legal profession and the wider community. He has been an effective, respected and highly regarded leader who has brought vision, dedication, exceptional strategic skills and considerable energy to the role. While I am incredibly sad to see Michael depart, he goes with our gratitude for his tireless efforts and contribution, and I wish him every success.
Richard Harvey , President, Law Society of NSW
8 LSJ I ISSUE 68 I JULY 2020
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ISSUE 68 I JULY 2020 I LSJ 9
Mailbag LETTERS TO THE EDITOR
Grindingtoahalt How thepandemichasa ected thecriminal justice system Culturaldi erences Can lawfirms reallydismantle embedded toxicocecultures? Adjourning justice E-trialsanddispute resolution in theenduringageofCOVID-19 Advocatingflexibility TheFairWorkCommission responds toCOVID-19witha raftofchanges
ISSUE67 JUNE 2020
A helping profession
the hand-drawn card from a child thanking the senior associ- ate for helping his family. I will be admitted in July and hope I will have the opportunity to help, at least sometimes. MatthewPaull The evidence is clear I refer to the letter from Mr Peter Dunlop in your June 2020 edition headed, in reference to potential litigation on the subject, “Entering the climate danger zone” and stating, amongst other things, that “… scientific debate on whether anthropogenic greenhouse gases (AGHG) has any effect on climate is still ongoing and many leading world scientists and scientific organisations disagree with the theory …”. If only it were so. According to NASA, clever enough to put the man on the moon so pretty good on science, scientists have high confidence that global temperatures will continue to rise for decades to come, largely due to greenhouse gases produced by human activities; multiple studies published in peer-reviewed scientific jour- nals show that 97 per cent or more of actively publishing climate scientists agree that climate-warming trends over the past century are extremely likely due to human activities; there are nearly 200 worldwide scientific organisations hold- ing the position “that climate change has been caused by human action”. The list of 200 includes the CSIRO, the Aus- tralian Academy of Science and the Australian Bureau of Meteo- rology. The full list can be seen at this website: https://climate. nasa.gov/scientific-consensus/ Jim Main A 50-year milestone While it is merely a personal milestone, I thought I would bring to your attention that today (29 May 1970) is the 50th anniversary of my admission as an Attorney, Solicitor and Proctor of the Supreme Court of NSW. It may well also be of
interest that I was the inaugural Lawyer of the Year in 1986 and a copy of the front page of the Law Society Journal is attached. I might add that the most sig- nificant change that occurred in my practise was when I com- pleted Specialist Accreditation in Business Law. I am fortunate and most proud that my daughter Verity is an associate of my firm and will continue the practise into the future. Phillip R Williams Let’s listen to themajority There were some bold claims in Peter Dunlop’s concerns about changes to environmental law as described in his letter, “Enter- ing the climate danger zone”, in the June 2020 LSJ . It’s hard to know where to start, but the claim that in 2019 “China alone was responsible for the total anthropogenic greenhouse gas increases of the entire world” is a doozy and takes China-bashing to a new level of absurdity. Mr Dunlop gave no authority for this proposition, which is self-evi- dently illogical and untenable. As to the question of sunspot activ- ity and other “natural forcing mechanisms of climate change” being responsible for global warming rather than humans, it so happens I wrote to the head of the Bureau of Meteorology about this question for my book Candidates Disease , which was reviewed last year in LSJ . In his reply, Dr Andrew Johnson of the BOM said that “solar radi- ation has not increased since satellite measurements began in 1978”. Johnson also said that “the pattern of observed warming is inconsistent with that which would occur from solar changes”. According to the UN’s Intergovernmental Panel on Climate Change website, industrial and other human gen- erated emissions have caused 100 per cent of global warming as observed in the past century, which explains why Mr Dunlop finds the IPCC so objectionable. The scientists he provided as authorities for the proposition
I read Jane Farquhar’s “Becoming a Solicitor in
the Time of Corona” (June 2020, Mailbag) and was struck by the similarities of her experience to mine: the excitement, the eager- ness to delve into new topics each semester, the challenges of balancing work and study, and the physical and mental toll. Unlike Jane, I worked full time and studied part time. Like her, I am a carer and sole income earner. I began with the Law Extension Committee in 2012 and finished in 2018. Unlike Jane, I had the good fortune of already being employed in admin in a law firm and my employer generously paid for my tuition. I paid for the text books, which oftenmeant hand-me-downs or getting in early to borrow them from the library. I recall buying a copy of Professor Butt’s Land Law with a broken spine at the bargain price of 70 dollars. I tried to attend every lecture, which were at 7pm on weeknights and could go to 9 or 9.30 pm, and this entailed a three- to four- hour round trip; those who have been stuck in Sydney peak hour will understand my decision to try and beat it by getting to work early. So, a day with a lecture could be 17 hours door to door. Other days, I caught the train and fought the urge to sleep so as to read cases, legislation and commentary. As Jane says, the essays and the exams seem like an endless blur. Unlike Jane, I have not had an opportunity to work in a legal centre. I envy her in this regard, because I believe that experi- ence reveals the true prize that being a lawyer makes possible: being able to help people. I am not naïve. I am a cynical near-fifty-something and know this is not mostly what happens, but I have seen here at my work place that it does happen; that as a lawyer you can make a positive difference to people’s lives. My evidence: the portrait of my boss painted by her grateful client and
Shouldthecruelactofcatfishing bedeclaredacrime in itsownright? Laws of deception
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28/5/20 5:02 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! Matthew Paull has won lunch for four. Please email: email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 68 I JULY 2020
LETTERS TO THE EDITOR
that humans are not responsible for global warming represent just 3 per cent of the world’s climate scientists. My authority for this proposition is a quick Google search which includes the Skeptical Science website and John Cook, an alumnus of Queensland University, who says we are currently warming the planet at the rate of four Hiroshima bombs per second. As bold claims go, that’s anoth- er doozy, but the precautionary principle demands that we listen to the 97 per cent of climate sci- entists who agree that humans are responsible for global warm- ing. Peter Breen The fallacy of emissions I found Peter Dunlop’s letter “Entering the climate danger zone” (June LSJ ) so compelling (comprehensive summaries of the reputable scientists who question the orthodoxy being relatively rare) that I went in search of the article by Kate
Allman referred to, said to be in the April issue and to have reviewed the model statute for climate litigation proposed by the International Bar Association. My e ort was in vain; howev- er, I was rewarded by reading Harvey Cole’s letter in the April edition referring to the subject as “emotive nonsense”. Further searching found an interesting article by Kate Allman in the May issue, “Police state or safety net?” on the rampant COVID-19 regulation of life, but no men- tion of the “emotive nonsense”. Eventually, in the March edition, I found what I presume was the article which so exercised Mess- ers Dunlop and Cole, “Climate Disaster Law: Does it hold the key to dealing with bushfires?” by Professor Rosemary Lister of the Sydney University Law School. She refers to a publi- cation, The Law of Adaption to Climate Change. I apprehend from context that the proposed legislation would provide for,
inter alia, sweeping powers over land use. (So perhaps Ms Allman’s article is on point after all – dealing as it does with evo- lution of the police state.) The need for more legislation is said to be the recent flooding and bushfire disasters having been “influenced and exacerbated by climate change”. Of course, in this context “climate change” means anthropogenically forced change and not that which may be inevitable as a result of, for example, increased sunspot activity, as Mr Dunlop points out. The acceptance of media hyperbole that “these fires were unprecedented in scale” is unfortunate and ignores the fact that the 18,626,000 ha burnt in Australia in the 2019/20 summer has been exceeded at least four times previously and on each such occasion by more than double that area, the largest being 117,000,000 ha in 1974/75 (Wikipedia). The burned area is said to have declined by
one third between 1900 and 2000. The Professor herself acknowledges that the IPCC “states that attribution of chang- es in individual climate events to anthropogenic forcing is com- plicated”. Our chief scientist is reported to have opined that emissions (In Australia at least) had negligible, if any, e ect on the recent fires. I would be will- ing to bet the farm on the fact that if all Australians voluntarily euthanised and returned the continent to “nature” (why homo sapiens are not part of that has always been a mystery) there would be just as severe bushfires and other climate catastrophes in future despite zero human emissions. Rather than more legislation, what we need is more compliance with what we have – particularly regulations relating to hazard reduction and firebreaks. Extending such obligations to those bodies who manage public land would be a good place to start. PeterWilson
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ISSUE 68 I JULY 2020 I LSJ 11
Mailbag LETTERS TO THE EDITOR
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“Catfishing is not a prank. It is deception, fraud and misleading. It also raises many ques- tions about the legality of impersonating someone who does not exist. While there are current laws relating to fraud, procuring or grooming and identity theft, I believe it is time that catfishing becomes a criminal offence in its own right.” – John Tadros, Facebook “Thank you for sharing this big issue. Many more people experience it than are willing to admit, because so often, the victim is blamed for believing the lies. We need more ways to make people think twice before inflicting this type of pain.” – Susannah Birch, Facebook
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ISSUE 68 I JULY 2020 I LSJ 13
WELLBEING A beacon in the darkest
moments: Law Society launches landmark wellbeing program BY AMY DALE
Solicitors struggling with their mental health will be able to access three free counselling sessions a year with a psychologist as part of a new wellbeing program launched by the Law Society of NSW. The Solicitor Outreach Service (SOS) is part of the Law Society’s ongoing ef- forts to support the mental health and wellbeing of the state’s 35,000 solicitors during the COVID-19 crisis and the ongoing recovery from the devastating bushfire season and drought. “Most of us at some point confront an hour that is very dark,” CEO of the Law Society of NSWMichael Tidball told LSJ. “Our hope, and our vision at the Law Society, is that the profession in its en- tirety will recognise that no-one is ex- cluded from the possibility of needing to access this service.” The Solicitor Outreach Service pro- vides access to up to three one-on-one psychological sessions, at no cost for NSW solicitors, as well as immediate psychological counselling for solicitors in acute crisis or distress, via a new ho- tline. All SOS psychologists are Medi- care-registered so solicitors who are eligi- ble for Medicare-subsided sessions may be able to continue treatment with their psychologist beyond the SOS. The telephone counselling will be delivered by an external provider and is confidential. President of the Law Society of NSW Richard Harvey said the phoneline will be managed by counsellors “who [are] aware of the sorts of stresses that lawyers are probably going through, who will then be able to hear directly from solicitors who
are for whatever reason under stress, du- ress or feeling low or even suicidal.” “Solicitors will have somewhere to go where they know that the people who are listening to them are solicitor-friendly and understand the sorts of issues law- yers are going through,” Harvey told LSJ. Harvey said the difficulties experi- enced by the profession and the broader
you’ve got to look after your client. That’s an essential part of being a profession, but it brings stresses that don’t necessarily apply in other sectors of society. “Many lawyers are sole practitioners and often they are genuinely alone. They don’t have support staff, or they could be in remote areas, and so they are not in a position where they can just hop on the bus and go see somebody on Macquarie Street.” Tidball said the Law Society has “a particular need to lead in this area”. “The evidence of a high degree of dis- tress in the profession and occurrence of challenges with mental health – that is not a new discovery,” Tidball told LSJ. “There is way more science and knowledge and empirical evidence that we have been able to channel in 2020 about the messaging, the behaviour, the insights and the needs of a person who is making that first vital step of reaching out and making a call. “What we want to do is, when that happens, recognise that for them it is quite literally a tough call.” For Tidball, the launch of SOS is one of his final initiatives before departing the Law Society at the end of this month after 14 years at the helm. “One of the great lessons of the last decade has been that mental health, and other struggles like addiction… that these things are tractable and treatable,” he said. “And to every practitioner who has a need, there is always hope through prac- tical assistance.” The Solicitor Outreach Service will be introduced in July 2020, with details to be published at www.lawsociety.com.au.
community so far in 2020 “gave us the impetus to get things up and running”. “The legal profession, like any other portion of society, is made up of human beings, so there’s always going to be a level of distress, but of course we have solicitors freely acknowledge that there is a great deal of pressure in legal practice,” Harvey said. “You can’t just say ‘I don’t feel like deal- ing with your matter today’ when you’re reading to run your case in court. You’ve got to be there; you’ve got to provide, and “One of the great lessons of the last decade has been that mental health, and other struggles like addiction… that these things are tractable and treatable.” Michael Tidball, CEO, The Law Sociey of NSW
14 LSJ I ISSUE 68 I JULY 2020
NEWTHISMONTH The Dining Roomdelivers Enjoy delicious meal hampers deliv- ered to your door every Friday, which have been prepared in our Law Society Dining Room kitchen. The FEED ME hamper offers a generous dinner ham- per to enjoy with your family or friends, while the FILL ME hamper provides an extended dining experience. All profits will go directly to FoodBank NSW & ACT – for every home-delivered hamper purchased, FoodBank will provide a box of essential items to a family in crisis. Place an order at: lawsociety.com.au/ dining-room-delivers FLIP Buzzwords: Strategy With increasing expectation that legal professionals embrace broader strategic roles, it’s more important than ever to understand what is meant by ‘strategy’ and how to successfully develop one. Having a successful strategy in place will not only ensure that lawyers remain via- ble into the future, but that they contin- ue to thrive. Register for the Webcast at: lawsociety.com.au/events/events-cal- endar/flip-buzzwords-strategy Save the date: AnnualMembers Dinner 2020 Save the date for Thursday 22 October and join us for what will be an enjoy- able occasion and an excellent oppor- tunity to catch up with friends and col- leagues. It will be an evening to honour all who have contributed to the work of the Law Society over the course of the year. Registrations opening soon at: lawsociety.com.au/events/events-cal- endar/save-date-annual-members-din- ner-2020
Celeste Barber Comedian and bushfire fundraiser
Turns out that studying acting at university does not make me a lawmaker.
ISSUE 68 I JULY 2020 I LSJ 15
sixminuteswith HANAAN INDARI
tion to the community and helping people is of huge signi - cance. e law has given me this opportunity to assist people and make a di erence to their lives. What have been your biggest career highlights? Making partner after only six years with the rm was a big achievement. I was one of the youngest to be appointed and felt very honoured. After that I was proud to become the rst deputy managing partner at Carroll & O’Dea Lawyers. I’ve been fortu- nate to do pro bono litigation particularly refugee advocacy. I also worked on the rst stolen generation case early on in my career. How have you coped with changes due to COVID-19? I think it’s been a challenging time for everyone. In a matter of days, we adapted the whole rm to operate remotely which ordinarily would take years. I’m transitioning to the role of managing partner during a pandemic. While this might seem daunting, I see it as an opportunity to help reshape the rm for the future. I’m passionate about having a exible workplace on a permanent basis, digitising processes and continuing to provide the highest service to our clients. What do you do in your spare time? I love cooking and yoga. I’m also part of a book club that meets every six weeks. At the moment we’re meeting via Zoom and reading Girl, Woman, Other by Bernadine Evaristo. It’s great because we all have such diverse opinions from each other. We’re in our tenth year of running the club, so I guess you can say I’m not afraid of commitment. Hanaan Indari starts her new role as Managing Partner at Carroll & O’Dea Lawyers this month, making her the first woman to do so in the firm’s 121-year history. Indari has been with the firm for 23 years and is passionate about leadership opportunities for women. She shares her thoughts with FLOYD ALEXANDER-HUNT .
How does it feel to be the first female managing partner at Carroll & O’Dea Lawyers? It’s a great honour. Generally, in the profession there is a lack of women at the leadership level, so it is great the rm is making its mark. Women are extremely competent and bring some- thing di erent to the leadership level. When you have more women and diversity at the top, it brings many positives to the organisation. One of the issues for some women is that whilst they are extremely competent they might not automatically put their hand up to go to the next level. I think it is incumbent on people like me now in a leadership position to help by providing support and more opportunities for women. What makes a good leader, and do you have any advice for people wanting to pursue a similar career path to you? I think the key is authenticity. I’m very fortunate that my val- ues align with the values of the rm. I encourage all lawyers to work hard and say yes to every opportunity that comes their way. Saying yes allows you to diversify your skill set in di erent areas of practice. Another crucial element is nding good men- tors. I’ve had a brilliant mentor, Howard Harrison, who is the current managing partner at the rm. He gave me great oppor- tunities and now he’s handing over the baton to me. I intend to mentor and support others in the rm. What are you most passionate about? I’m passionate about helping people and access to justice. My dad was an Arabic journalist and an advocate in the Leb- anese community. I come from a background where contribu-
16 LSJ I ISSUE 68 I JULY 2020
LEGAL AID Sweeping reforms to Legal Aid processes
to increase the fees it pays solicitors and barristers to undertake legal aid work. It also sought amendments to the Legal Aid Commission Act 1979 (NSW), which are due to commence on 13 July, and aim to streamline panel processes. Under the changes, Legal Aid NSW will engage with law rms – including sole practitioners – directly, and panel applications may be made at any time. e principal of a law rm will only have to submit one application for all Legal Aid NSW panels, and once appointed to a panel they will no longer need to apply for reappointment. Legal Aid NSW will also o er private lawyers more training and support. omas said that over the coming year, Legal Aid NSW intends to estab- lish clear standards for what is expected of private lawyers and commit to inter- vening earlier should any issues arise around the quality of services provided to clients.
Legal Aid NSW has announced changes to the way it engages with the private legal profession in what CEOBrendan omas describes as a major overhaul designed to better support private lawyers. e reforms come after almost two years of consultation with private solici- tors, barristers, the Law Society of NSW and the NSW Bar Association. omas said some “pain points” were raised repeatedly during consulta- tion – including that fees paid by Legal Aid NSW were too low, that the panel application process was inconsistent and time-consuming, and that grants approvals were frequently delayed.
“What we heard over and over during those conversations was that private lawyers simply did not feel valued by Legal Aid NSW, and that was of serious concern to us,” omas said. “Private lawyers appear in almost three quarters of our ongoing casework matters and 40 per cent of our duty ser- vices. We cannot do what we do without the private legal profession. “So we want to make it easier for more private lawyers to do business with us, but we also want to do a better job of engaging with the profession.” Legal Aid NSW last year secured additional NSW Government funding
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INDIGENOUS ISSUES All-Indigenous police station highlights strategies for closing the gap
the situation,” said Ozies. “Most of the time, communication breaks down. English could be their sec- ond or third language. An Indigenous person speaking to a police officer who doesn’t understand them might become frustrated. Things spiral.” Sergeant Kelly, an Aboriginal wom- an who grew up in Perth, encountered many of the same cultural barriers that non-Indigenous officers struggle with in their dealings with Indigenous com- munities. She spends much of the film attempting to learn the language and build relationships with local people. “Trying to get your tongue around some of those words was so tricky,” she admitted to LSJ . “If you have that engagement between police and community, people relax a lot more and they’re not walking around on eggshells. If they’re in trouble, they know they can talk to us or ask for help.” The NSW Police Force 2018-19 An- nual Report shows 4 per cent of NSW police officers are Aboriginal or Torres Strait Islanders. This is a slightly high- er proportion than is represented in the overall national population – of which Indigenous people represent 3.3 per cent according to the Australian Bureau of Statistics (ABS). The statistics surrounding Indigenous imprisonment are more dire: as many as one in three inmates in adult prisons are Indigenous, according to the Aus- tralian Institute of Health and Welfare (AIHW). Data released by AIHW in May shows Indigenous young people aged 10–17 are 16 times as likely to be under supervision by the criminal justice system as non-Indigenous young people. When asked whether all-Indigenous police stations could help to close this gap in city regions like Sydney, Sergeant Kelly told LSJ , “I don’t see why not”. “I’d also love to see more legal doc- uments done in [Indigenous] language. In Warakurna we were trying to get bail papers translated and produced in language. If a person can’t even read their bail conditions, how can we expect them to get it right?”
BY KATE ALLMAN
Our Law is a documentary about Australia’s only known all-Indigenous police station.
For most of his life, the only interactions film director and Indigenous man Cor- nel Ozies had with police were negative. He recalls his Indigeneity regular- ly attracting police attention where he grew up in Broome, Western Australia. Just last year in Sydney, he endured half an hour of interrogation by officers look- ing for a man of Indigenous appearance – despite Ozies showing them identifi- cation – as he walked to his teaching job at the University of Sydney. It’s why, when Ozies heard rumours of Australia’s first all-Indigenous police sta- tion working collaboratively with mem- bers of a remote outback community in Warakurna, Western Australia, he decid- ed to make a film about it. The resulting documentary, Our Law , premiered at the 2020 Sydney Film Festival and will be broadcast on NITV on Monday 22 June. “The station in Warakurna was do- ing things really differently,” Ozies told LSJ . “The respect, understanding of cultural difference and communication
between officers and the community at was amazing. I had never seen anything like it before.” Our Law follows officers Wendy Kel- ly and Revis Ryder as they work to build bridges between the justice system and largely Indigenous community of 230 people in Warakurna, an outback town 330km west of Uluru. The film offers lessons to police forc- es around the nation about easing ten- sions between police and Indigenous communities and dismantling long- held prejudices. Ozies said these lessons were timely in the wake of recent Black Lives Matter protests, as well as the emergence on social media of a damn- ing video showing an officer in Redfern sweep-kicking an Indigenous teenager to the ground. “White police officers don’t always understand the aggression towards them because they aren’t taught the historical context. The aggression is not about the individual; it is towards the system and
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BY LINDEN BARNES , SENIOR ETHICS LAWYER
Q: Has the pandemic changed our ethical rules?
A: No. The rules have not been rewrit- ten. Like during other novel situations over the centuries, the rules stay the same. They simply apply to the novelty. Let us take some examples. 1. Confidentiality: We have all been working in different surrounds. The pots and pans of kitchens have featured as backdrops to many an online meeting, as has the occasional family member or pet. Now, while Fido the family mutt is prob- ably not a confidentiality risk, the same cannot be said for the family member, particularly if they happen to be the solic-
itor acting for the other side. It is always good to have a confidentiality plan if we are taking information or having conver- sations outside our “proper” office. 2. Communications: While our standards of dress may have dropped, our standards of address cannot do likewise. This is particularly relevant to online court where there have been issues from its inception, long before the pandemic, about solicitors not treat- ing it with the necessary formality or approaching the bench without the consent of all the other parties. In any
situation, court or otherwise, courtesy and clarity are always required. 3. Remote witnessing: Here was a classic situation where the locking down of nursing homes in particular created a significant issue with how we take instructions and witness signatures. The response was an emergency regulation. But the ethical rules never wavered – competent instructions, and accuracy and honesty in terms of the witnessing. So, whatever the new normal of our world looks like, we can rely on unchanging ethical rules.
BROUGHT TO YOU BY THE LAW SOCIETY OF NSW COSTS COMMITTEE
Q: Costs rules –what if I get it wrong?
A: Practitioners who comply with costs rules benefit from favourable presump- tions – for example, the rule that costs properly disclosed in a costs agreement are prima facie considered reasonable ( Legal Profession Uniform Law (NSW), s172(4)). However, failures to comply with costs rules can have severe conse- quences, as can overcharging. First and foremost, either cir- cumstance is capable of constituting unsatisfactory professional conduct or professional misconduct ( Legal Profes- sion Uniform Law (NSW), ss178(1)(d), 298(a), (d)). Further, and irrespective of the conduct consequences (which apply
whether or not there is a dispute), prac- titioners who have overcharged or failed to make proper disclosure will suffer a number of automatic adverse conse- quences in any dispute about costs: • Failure to comply with disclosure requirements cancels the usual pre- sumption that a costs agreement is prima facie evidence of the reason- ableness of the costs disclosed in the agreement ( Legal Profession Uniform Law (NSW), s172(4)). The costs agreement is automatically deemed void, and costs recovery proceedings are unable to be commenced until costs have been assessed ( Legal Profes-
sion Uniform Law (NSW), s178(1)). • Moreover, in any subsequent solic- itor/client costs assessment, if the Costs Assessor concludes that there has been insufficient disclosure, or if costs are reduced by 15 per cent or more, there is a presumption that the law practice must pay the costs of the assessment ( Legal Profession Uniform Law (NSW), s204). It is important to keep on top of costs compliance. The Law Society’s Legal Costs Unit is here to help members and can be contacted with any questions on (02) 9926 0116 or costs@lawsociety. com.au.
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YOUNG LAWYERS COVID-19 can’t stop the laughs as GoldenGavel winners crowned
BY FLOYD ALEXANDER-HUNT
Golden Gavel winner Olivia Irvine, left, and People’s Choice winner Sophia Urlich.
Law graduate Olivia Irvine has taken out this year’s virtual NSW Young Lawyers Golden Gavel competition with a hilar- ious take on how to adequately measure 1.5 metres and adhere to COVID-19 public health orders. The Golden Gavel competition looked a bit different this year due to the pandemic restrictions. In the absence of a crowded early morning breakfast the competition went ahead online, with seven brave competitors bringing the laughs and drawing in hundreds of viewers and votes. Irvine’s winning speech tackled the topic, “COVID health order – the best ways to measure up 1.5 metres are these”. Her speech featured a lot of wit and the occasional reference to her “beautiful hair”. The crux of her comedic routine was that 1.5 metres is in fact a complex legal term determined by your member of parliament. “To meet the 1.5 metres, measure with your member,” Irvine, a volunteer at the Redfern Legal Centre, said. Irvine was surprised by her win and grateful to everyone who watched her
video; particularly given her mum didn’t even vote for her. “I sent it to my mum, and she felt it would be nepotism if she voted, so she didn’t. But she told me she liked it,” Irvine told LSJ . The winning speech was shot as one long take and Irvine admits she had to redo it 30 or 40 times due to her cat Sheba walking into the background. In this year’s pandemic edition of Golden Gavel, each competitor was given a different topic and had just 24 hours to write and film their five-min- ute speech. The videos were then made available online for viewers to vote for across the week. Sophia Urlich, a lawyer at Lindsay Taylor Lawyers, won the People’s Choice Award for her theatrical performance of “M-m-m-m-my corona – tips to going back to the office and living to tell the tale”. She staged her video at the beach using a pink esky as her desk where she provided amusing tips for returning to the office safely. “By far the best thing you can do is sing and dance, that’ll keep people away
from you,” said Urlich. Urlich demonstrated the point by singing her own lyrics “Let’s go fight a case” to the tune of Mary Poppins’ “Let’s Go Fly a Kite”. NSW Supreme Court Justice Lucy McCallum, who is the 2020 Patron of the NSWYoung Lawyers and headed the judging panel, praised all the competi- tors for braving the online competition and creating laugh-out-loud moments. She highlighted Irvine’s winning speech, calling it “stand-up comedy in its purest form”. “It was a careful narrative with a slow build, a strong message conveyed through satire, punctuated with the odd irrelevant gag and glimpses of the vulnerability of the comedian,” McCallum said. McCallum gave Irvine a virtual judi- cial hug and flowers. She complimented all the competitors on their speeches and encouraged them to make her laugh in court one day. The 2020 Golden Gavel was spon- sored by Unisearch Expert Opinion Services. If you missed the fun, visit lsj. com.au to watch the speeches in full.
20 LSJ I ISSUE 68 I JULY 2020
Contingency plan to assist sole principals
BY LSJ TEAM
“As someone who has practised as a solicitor for nearly 40 years, I am well aware that sole principals are particularly vulnerable to disruption if they are suddenly unable
e Law Society’s Professional Stan- dards Department has launched a new resource designed to help sole principals nominate a Personal Representative and Alternate Manager in the event they are no longer able to manage their practice. Motivated by the e ects of the ongoing pandemic, the Law Society is urging sole principals to nominate another legal practitioner as a Per- sonal Representative and an Alternate. President of the Law Society of NSW, Richard Harvey, said the service will provide “an additional safety net”. “As someone who has practised as a solicitor for nearly 40 years, I am well
aware that sole principals are particu- larly vulnerable to disruption if they are suddenly unable to manage their own practice,” he said. “ is new service is an additional safety net, particularly in the event of death, serious injury or illness. I am pleased to say sole principals of law practices have already reported that the nomination process for the new resource is straight- forward and easily accessible.” Practitioners can nominate a Personal Representative and an Alternate by com- pleting a simple online form. Find more information at lawsociety.com.au/con- tingency-plan-sole-principals
to manage their own practice.”
Richard Harvey, President, the Law Sociey of NSW
WORKINGSM@RT WITH MICROSOFT ONLINE TRAINING TO HELP YOU AND YOUR TEAMTOWORK SMART Tuesday 14 and Thursday 23 July • 2.00pm – 3.30pm Discover how Microsoft Outlook and Teams can help you prioritise and manage your workload and drive effective teamwork, communication and planning with two practical webcast sessions to get you working smarter, not harder. Learnmoreat lawsociety.com.au/workingsmart
ISSUE 68 I JULY 2020 I LSJ 21
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