LSJ JULY 2021
Welcome to an extraordinary edition of LSJ. In honour of NAIDOC Week 2021 and the theme ‘Heal Country!’, we are eecting a content takeover. In place of the usual, you will find an open celebration of Indigenous strength, resilience and talent. We will grapple with the tough issues, showcase the depth and diversity of Indigenous legal leaders, tell the stories that need telling, and amplify the voices of those in the profession working towards meaningful change. What now for truth telling? It’s been four long years since the launch of the Uluru Statement from the Heart. AMY DALE speaks to those who continue to passionately drive it in the face of political stagnation. Can you ask that? Real talkwith Indigenous lawyers Equity is well and good, in theory. But how far is the legal profession from achieving equitable outcomes for Indigenous Australians? KIRRILY SCHWARZ asks three Indigenous lawyers. Breaking the prison cycle Indigenous Australians – including children – are massively overrepresented in Australia’s prison system. KATE ALLMAN meets ambitious change agents altering the narrative for good. Taking Indigenous people o mute There are often significant knowledge gaps when it comes to understanding Indigenous culture, and this all adds to lived trauma for many, writes TRENT WALLACE. Who pays the price? The number of Indigenous deaths in custody is still ashamedly high. CRAIG LONGMAN explores the ongoing tragedy in the face of the BLM movement and asks: who should be held accountable? As LSJ does its small bit to Heal Country, you will find in these pages:
20 Hot topic June Oscar AO on why reconciliation in Australia’s future depends on reckoning with our past 22 Lunchwith Judge Elizabeth Boyle explains the impact of the Federal Court’s Indigenous List over tea with Amy Dale 30 Constitutional recognition Amy Dale explores how recognising the Uluru Statement in Australia’s Constitution could forge reconciliation
34 Can you ask that? Kirrily Schwarz asks three Indigenous lawyers for their takes on the tough questions you always wanted to ask 38 Breaking the cycle Kate Allman uncovers a community- led program in Sydney helping divert Indigenous children from prison 47 Mindset Trent Wallace writes how lawyers can improve their cultural communication and competency in the workplace
48 Extracurricular A creative prison program is allowing children to paint the boots of NRL heroes while building brighter futures 50 Health Dr Janine Mohamed writes how self- determination for Indigenous people is ensuring success amid COVID-19 54 Travel Ute Junker has trawled Australia to find and share the best Indigenous cultural travel experiences
ISSUE 79 I JULY 2021 I LSJ 3
6 From the editor
64 Criminal law Justice Lucy McCallum and Erica Timmins make the case for a black letter application of Bail laws in NSW 68 Wills and estates Prof Prue Vines extolls the benefits of Indigenous wills in overcoming the shortcomings of existing succession laws 70 Black deaths in custody Craig Longman gets to the core of structural problems impeding change, and the latest legal challenges brought by families 73 Risk 74 Advocacy The latest in law reform from the Law Society’s policy lawyers 76 Practice and procedure When should you not act for a client? After the Porter case, you might be wondering ... Why good file notes are the best insurance against a claim
79 Employment All the key takeaways from
8 President’s message
the FWC’s Deliveroo judgment
82 Corporate and climate Overpromising and underdelivering when it comes to directors’ duties and climate change 84 Insolvency The Full Federal Court decision that has rung the death knell for the peak indebtedness rule 86 Costs Is your costs agreement template fit for purpose? Time to find out with this handy checklist 88 Property law O ce of the Registrar General delivers the o cial word on the end of CTs as we know them 90 Case notes Expert updates on the latest High Court, Federal Court, NSW Court of Criminal Appeal, Family Court, and elder law and succession judgments
19 Expert witless
19 The LSJ quiz
24 A Country Practice
25 Library additions
44 Career matters
46 Career coach
60 Books and lifestyle
62 The case that changedme
106 Avid for scandal
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Legal Aid NSW – improving our engagement
We value you. So we’re improving the ways we support you. As part of our commitment to support private lawyers, we have created the Lawyer Education Series. The series features a suite of CPD-accredited training modules created by Legal Aid NSW lawyers who are specialists in their area of practice. They have been developed to enable private lawyers to independently build legal capability and deliver high-quality legal services to our clients. The Lawyer Education Series aims to support our private and in-house lawyers to build and refresh their skills.
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A word fromour Guest Editor A very warm welcome to this special LSJ edition.
As you can see, I have taken over as Guest Editor in the lead-up to NAIDOC week. I have always loved NAIDOC week. It’s built on the strengths of my people, their resilience, their connection to and care of Country, and their pride in be- ing the oldest surviving culture in the world . I am also very proud of the work and commitment of Law Society sta in delivering the vision of serving our members,
Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor
Jacquie Mancy Online Editor Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Contributing feature designer Lara Shipard 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 © 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 July 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.
leading the profession, and ensuring a just legal system. I started as Law Society CEO in September 2020 at the height of worldwide attention on racially motivated violence with the Black Lives Matter movement; a time when focus was on the importance of the rule of law, the need for safe and harassment-free workplaces across the legal pro- fession and, importantly, when the profession responded so well and continued with its duty to court and client during the COVID-19 pandemic. In undertaking the CEO role, I am ever mindful that I am more likely to be incar- cerated, a victim of crime, and to have my four children removed from my care than I am to be the rst Aboriginal woman to lead this organisation in its almost 180-year history. e idea for this LSJ edition came from a desire to highlight the great work the profession does, particularly Indigenous lawyers, across the many and diverse ar- eas of law that impact Indigenous peoples and communities. I hope you enjoy the read and learn something new – and that Indigenous law students, and those recently admitted, are inspired by what they see and what they can be.
Sonja Stewart, Yuin, Law Society of NSW CEO
LSJ is produced on Gadigal land. We acknowledge the Gadigal of the Eora Nation as the traditional custodians of the Sydney Cove region, who for more than 60,000 years have cared for the foreshore and the land we now work on. We pay our respects to Gadigal elders past and present.
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ISSUE 79 JULY 2021
EAP lets you work with flexibility. egrated matter management, unting in one platform
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. Contributing artist: Ryhia Dank is a contemporary Aboriginal artist who grew up in a remote community and now lives in modern Australia. Ryhias paintings are storywork. Gudanji/Wakaja people told stories through pattern and design – Ryhia calls her storying ‘nardurna’. The three lines in her brand are to acknowledge the three woman who came from the ocean near Ngukurr in the Gulf of Carpentaria. They travelled a long way and then created the place of her family, the hills and fresh water Country. See more of her beautiful work at nardurna.com or on Instagram @nardurna
Welcome to an extraordinary edition of LSJ. In honour of NAIDOC Week 2021 and the theme ‘Heal Country!’, we are e ecting a content takeover. In place of the usual, you will find an open celebration of Indigenous strength, resilience and talent. We will grapple with the tough issues, showcase the depth and diversity of Indigenous legal leaders, tell the stories that need telling, and amplify the voices of those in the profession working towards meaningful change. What now for truth telling? It’s been four long years since the launch of the Uluru Statement from the Heart. AMY DALE speaks to those who continue to passionately drive it in the face of political stagnation. Can you ask that? Real talkwith Indigenous lawyers Equity is well and good, in theory. But how far is the legal profession from achieving equitable outcomes for Indigenous Australians? KIRRILY SCHWARZ asks three Indigenous lawyers. Breaking the prison cycle Indigenous Australians – including children – are massively overrepresented in Australia’s prison system. KATE ALLMAN meets ambitious change agents altering the narrative for good. Taking Indigenous people o mute There are often significant knowledge gaps when it comes to understanding Indigenous culture, and this all adds to lived trauma for many, writes TRENT WALLACE. Who pays the price? The number of Indigenous deaths in custody is still ashamedly high. CRAIG LONGMAN explores the ongoing tragedy in the face of the BLM movement and asks: who should be held accountable? As LSJ does its small bit to Heal Country, you will find in these pages:
Cover art: Ryhia Dank
Cover design: Alys Martin
NEXT ISSUE: 1 AUGUST 2021
6 LSJ I ISSUE 79 I JULY 2021
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I am excited to contribute to this groundbreaking issue of LSJ , timed to coincide with NAIDOC Week events taking place around our state and nationally. This year’s NAIDOC Week theme, “Heal Country!”, calls on all Australians to celebrate Country, to protect and respect it, and to listen to the voices of our First Nations people about how best to do this. The Law Society has some terrific events celebrating NAIDOC Week 2021, particularly our Thought Leadership event: “In Conversation with Professor Megan Davis” on Tuesday 6 July 2021. Professor Davis is the Pro Vice-Chancel- lor of Indigenous Law at UNSW and one of the architects of the Uluru Statement from the Heart. The Uluru Statement was issued in 2017 on the 25 th anni- versary of the High Court’s Mabo decision, after the largest consultation of First Nations people ever carried out in Aus- tralia. It calls for three reforms: Voice, Treaty and Truth. The Law Society of NSW and NSW Young Lawyers fully support the implementation of the Uluru Statement. It is a powerful statement, addressed to all Australian peo- ple, asking us to change the constitution and give First Na- tions people a voice in the laws and policies that are made about them. Entrenching a First Nations Voice in the constitution will be a form of recognition of the history and place of our First Nations people, as well as a strong statement of the right to self-determination.
We now call on the Commonwealth Parliament to set a timetable for a referendum on this issue as a matter of priority. We also support the establishment of a Makarrata Com- mission by way of legislation to “supervise a process of agree- ment-making between governments and First Nations and truth-telling about our history”, as called for in the Uluru Statement. In keeping with the right to self-determination, comprehensive consultation and co-design with First Nations People must be central to the development and design of a First Nations Voice to Parliament. The legislation establishing the Makarrata Com- mission can then be designed by the Voice to Parliament. There is an urgent need to address the over-representation of First Nations people in the criminal justice system, the gap in life outcomes between First Nations people and other Australians, and the over-representation of First Nations children in out- of-home care. Implementation of the Uluru Statement will be the way to walk a different path with First Nations people and assist in addressing the outstanding injustices which impact on the lives of First Nations people. It will provide a way forward for us to truly heal as a nation.
Juliana Warner , President, Law Society of NSW
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ISSUE 79 I JULY 2021 I LSJ 9
‘The news our region has beenwaiting for’: drug court coming toDubbo
BY AMY DALE
Dubbo is the site for a much-anticipated new Drug Court, with the Orana Law Society declaring it “the news our region has been waiting for”.
The Drug Court will be made possible by a $27.9 million invest- ment over four years from the NSW Gov- ernment. The expan- sion means Dubbo will join Drug Court sites in Sydney, Parramatta and the Hunter. For more than 20 years, the Drug Court has been diverting those facing prison time for a non-violent offence into an intensive pro- gram of supervision,
there is a pressing need for a Drug Court in Dubbo,” President War- ner said in a statement. “Research has con- sistently shown that the Drug Court is more ef- fective than prison in reducing drug-related crime. It can also play a part in reducing family and domestic violence, family breakdown, homelessness and other social issues. “This announcement is a much-welcomed ac-
them to prison”. In a longitudinal study, tracking us- ers who had gone through the drug court program alongside others who were deemed eligible but did not complete it, the study found those who participated had a 17 per cent lower reoffending rate compared with non-participants. “It’s more cost effective than sending offenders to prison and is proven to be more efficient at driving down crime. It’s no surprise, then, that the NSW Police support it too,” Speakman said. “Graduation day in the Drug Court is testament to the fact that it’s possible to get better.” Law Society of NSW President Juli- ana Warner welcomed the announce- ment. “The Law Society of NSW, which rep- resents the state’s 36,000 solicitors, and the Orana Law Society, which represents solicitors in Dubbo and the surround- ing regions, have long held the view that
testing and treatment of the underlying factors of drug dependency. Opening a Drug Court in priority regional areas was a key recommendation of the Special Commission of Inquiry into Ice, noting the regions had been hit especially hard by the drug epidemic. “It’s not enough to be ‘tough on crime’; instead, we need to be tough and smart,” NSW Attorney General Mark Speakman said during his announce- ment on 17 June. “We need responses based on evi- dence, not on outmoded prejudices or easy headlines. We need responses that actually make a difference for the indi- viduals, families, friends and communi- ties battling illicit drug abuse.” A 2020 evaluation from the NSW Bu- reau of Crime Statistics and Research and the National Drug and Alcohol Research Centre found “treating drug-related of- fenders is far more effective than sending
knowledgement by the NSW Govern- ment that the use of ice and other am- phetamine-type substances needs to be addressed as a major health issue, not just a criminal justice issue. “The Law Society has publicly encour- aged the expansion of the Drug Court and other diversionary programs for some time and welcomes the prospect of additional Government support for this therapeutic approach.” Andrew Boog, President of the Orana Law Society, reiterated President Warner’s comments, saying “this is the news our re- gion has been waiting for, for many years”. Judge Roger Dive, who has been the Senior Judge of the Drug Court since it commenced 17 years ago, said “our so- ciety gains when we do something really sensible and give drug users an opportu- nity to recover. It’s good for the commu- nity, good for the budget and very good for the families of those in recovery.”
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AWARDS Legal profession celebrates recipients of Queen’s Birthday Honours
Lawyers from NSW have featured prom- inently in this year’s list of Queen’s Birth- day Honours recipients. Among the 50 distinguished Austra- lians who were named as O cers (AO) of the Order of Australia in 2021 were law- yer and University of Sydney Law School Professor Anne Twomey, and UNSW Scientia Professor of Law Jane McAdam. Twomey is admitted as a solicitor in NSW, Victoria, the ACT, and the High Court, and is considered a leading expert on constitutional law and the legal limits of executive power. McAdam serves on a number of international committees regarding international refugee law, is Director of the Andrew & Renata Kaldor Centre for International Refugee Law at
UNSW, and is joint Editor-in-Chief of the International Journal of Refugee Law . ere were 252 Australians who re- ceived a Member (AM) of the Order of Australia. Among them was Syd- ney-based human rights barrister and Senior Counsel Kate Eastman, who was recognised for her more than 30 years of court advocacy and service to the law, to human rights and professional organisa- tions. NSW solicitor Joplin Higgins, a fam- ily lawyer and director of Newcastle rm Joplin Lawyers, was one of two solicitors among 640 Australians to receive a Med- al (OAM) of the Order of Australia. So- licitor Denis Farrar, a lawyer of 46 years and founding partner of Farrar Gesini
Dunn based in the ACT, was the other. e below lawyers were named in the Queen’s Birthday 2021 Honours List: e Honourable Patricia Anne Ber- gin SC, Professor Anne Frances Twom- ey, Professor Jane Alexandra McAdam, Katherine Louise Eastman, Peter Clem- ent Semmler QC, Mary Catherine Walk- er, Denis William Farrar, Joplin Higgins, Colonel James Graham Waddell, and Group Captain Edward Allan Eather. e complete list of award recipients is listed on the Commonwealth Gover- nor-General’s website.
To view the list visit gg.gov.au/australian-honours-and- awards/australian-honours-lists
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ISSUE 79 I JULY 2021 I LSJ 11
sixminuteswith KERRY O’BRIEN
Kerry O’Brien is a proud Koori man and Senior Associate in the Employment Relations and Safety team at McCullough Robertson. He holds a Master of Laws from the University of Sydney and is Chair of the Board of Redfern Legal Centre. O’Brien tells FLOYD ALEXANDER-HUNT about his career and passion for helping vulnerable people.
Why did you pursue a career in law? From a young age, I wanted to be a judge. In my first year of high school, all the Aboriginal kids were gathered together for a careers session. I remember saying, “I want to be a lawyer” and the liaison officer’s response was, “Oh no, Aboriginal kids don’t become lawyers. Maybe consider an apprenticeship or something sports related.” I thought that was so rude. It was an offhand comment, and it wasn’t said in an unaffectionate way, but it was perpetuating ideas about what Aboriginal peo- ple can and can’t do. It really put a fire under me to pursue the career I now have. What does a typical day look like for you? I get into work super early before anyone can call or email me with questions. My practice involves mostly litigious matters, working with the wonderful team at my firm. If it’s a weekday, I will probably go to Barry’s Bootcamp in the city. It’s a cult and I am very much indoctrinated into that. Then I will head home and do something boring like binge watch Netflix. What is your role at Redfern Legal Centre? I’m the Chair of the Board of the Redfern Legal Centre (RLC), the oldest community legal centre in NSW. My role is to lead the board and the centre by supporting the CEO and manage- ment in the work they do. We’ve got seven directors, including myself, that sit on the board. A lot of my role involves conduct- ing typical board functions – board meetings, facilitating the implementation of our strategic plan and supporting the team.
Why is the role important to you? Access to justice is absolutely critical, and community legal centres, particularly the RLC, have a vital role to play. I’m not alone in volunteering time to a community legal centre or doing pro bono work. I’ve been on the board for a number of years, and I’ve come to see how our assistance deeply affects people on a day-to-day level. I am also the first Aboriginal Chair of the RLC. Being a young Aboriginal man who is able to be in that position is something I don’t take for granted. Have you experienced any challenges in your career? I think in the legal profession there are elements of real elit- ism. I went to UNSW; I got my masters from Sydney but I’m also an Aboriginal gay man from the Central Coast who was the first in my family to go to university. I have observed in my time as a solicitor, and more broadly, that the law has real issues with classism and elitism, and I think that is something that will be part of a broader reckoning in the profession in the future. If I was hiring a junior lawyer or graduate, I’d be more interested in their personality and interests over any med- als or citations they have. I’d say to them to choose an area of law you find fun rather than what you think will make you money. Also, don’t be in a rush! Take time to live your life outside the law. Do you have any advice for young lawyers seeking to pur- sue a similar path?
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NEWTHISMONTH Fundamentals of the Fair Work Commission The Employment Law Committee is hosting two webcasts with the Vice President of the Fair Work Commission, Joseph Catanzariti AM, designed to help practi- tioners with limited exposure to the Fair Work Commission or in need of a refresher. The sessions are complimentary to Law Society members. Register via lawsociety. com.au/events Information on the Family Court merger The Honourable Chief Justice William Alstergren will present a free live online session providing an overview of the imminent merger, plus procedural aspects and considerations for family law practitioners. lawsociety.com.au/events Government Solicitors Conference 2021 – registrations open Registrations are open for the Government Solicitors Confer- ence 2021 on Tuesday 7 Septem- ber at the Fullerton Hotel. Early bird prices are available until 30 June. lawsociety.com.au/govern- ment-solicitors-conference-2021 New Just Chat episode available 2 July This month, Amy Dale sits down with Brendan Thomas, proud Wiradjuri man and CEO of Legal Aid NSW. Thomas reveals what this year’s NAIDOC Week theme “Heal Country” means to him and what he has learned in a more than 20-year career improving the justice system. Episode available from 2 July at https://player. whooshkaa.com/shows/just-chat or search “Just Chat” wherever you listen to podcasts.
Cheryl Axleby Co-Chair of Change the Record and proud Narungga woman
Dozens and dozens of submissions made by legal, health and youth experts have been hidden and ignored by attorneys-general for over a year, as they have sat and done nothing while our children languish in prisons.
ISSUE 79 I JULY 2021 I LSJ 13
LOCAL COURTS Eight new magistrates for NSWLocal Court
The cogs of justice will turn faster in the new finan- cial year, the state government has promised, as it pledges funding for eight new Local Court magis- trates in NSW. NSW Attorney-General Mark Speakman has an- nounced that the 2021-22 Budget will invest $56.1 million over the next four years to appoint eight extra magistrates and boost resources for prosecutors and Legal Aid. This will take the number of Local Court magistrates in NSW to a record high of 149. The Law Society of NSW last month welcomed the news. President of the Law Society of NSW Ju- liana Warner said she had been calling on the Attor- ney-General to provide additional magistrates for the state’s Coroner’s Court, Sydney’s Downing Centre and Local Courts at Albury, Coffs Harbour, the Cen- tral West, Illawarra, and Wagga Wagga. “The current workload of magistrates is ferocious – the Local Court deals with more than 94 per cent of all criminal prosecutions and almost all domes- tic and family violence matters in NSW,” President Warner said. “The shortfall in magistrates in the Local Courts during the past three years placed an enormous strain on the workload of our judiciary and court staff, impacting on everyone who came into contact with our courts. “The Attorney-General’s announcement brings in some much-needed resources to reduce the delays in the Local Court and is welcomed by the state’s solici- tors, especially those in our regions.” Speakman said the extra magistrates would reduce the wait time and trauma for victims, witnesses and families facing lengthy court delays. He said the gov- ernment was “committed to easing that burden felt particularly by those involved in domestic violence cases” and noted the increase in magistrates would en- able the Coronial Case Management Unit (CCMU) pilot to become permanent. “The CCMU helps ensure grieving families can lay their loved ones to rest sooner and receive better and more timely information. Led by coroners, the unit is a successful collaboration between police, forensic pathologists, medical specialists and counsellors,” Speakman said.
NSW Attorney-General and Minister for the Prevention of Domestic Violence Mark Speakman
FAMILY VIOLENCE $90million Budget boost
for those escaping domestic violence
Women and children experiencing domestic violence will have greater access to support under a $90 million funding boost for specialist ser- vices as part of the 2021-21 NSW State Budget. The funding boost has been welcomed by specialist domestic violence organisations amid a rise in reports to victim support lines during the COVID-19 pandemic. NSW Attorney-General and Minister for the Prevention of Domestic Violence Mark Speakman said the Government’s priorities include “help- ing children impacted by domestic violence, Aboriginal survivors, those from culturally and linguistically diverse communities, and victims from regional communities”. Part of the Budget commitment includes $32.5 million over four years to expand the Staying Home Leaving Violence program, which supports women to remain safely in their homes and removes the perpe- trator. This includes wraparound safety planning, like upgrading home security and installing CCTV, as well as help navigating the legal process and financial management assistance. “Women are often forced to flee violent homes, and in doing so they’re cut off from housing, community supports, employment, and education for their children,” Speakman said. “Perpetrators choose to inflict horrendous abuse on those they claim to love. It is they alone who should bear the brunt of re-locating if they refuse to change their behaviour.” Delia Donovan, CEO of Domestic Violence NSW, said the funding boost would benefit services across the state. “Frontline services have been advocating for greater support, partic- ularly during COVID-19, to deliver crucial services to victim-survivors in communities across NSW, so we’re really pleased to see this critical funding commitment in the Budget,” Donovan said. The NSW Government has also recently launched the Avow phone app, which will help perpetrators understand conditions of their appre- hended domestic violence offenders (ADVOs), including information about appearing in court.
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The more risks we take off the table, themore deals you can keep on it.
DEATHS INCUSTODY DavidDungay Jr’s death referred toUN
Two of Australia’s most renowned hu- man rights lawyers will assist the mother of Indigenous man David Dungay Jr in bringing his death to the attention of the United Nations. The 26 year old died in custody in De- cember 2015 at the Long Bay prison hos- pital. A diabetic, he had been restrained by five prison officers in his cell after re- fusing to hand over a packet of biscuits. Lawyers Geoffrey Robertson SC and Jennifer Robinson appeared at a media conference on 10 June alongside Dun- gay’s mother Leetona and nephew Paul Silva to announce the move. They hope it will spark the attention of the world and the Black Lives Matter movement, which led global protests in 2020 following the murder of Minneap- olis man George Floyd by police officer Derek Chauvin. Ms Dungay will make the complaint the UN’s Human Rights Committee, arguing the NSW Government failed to protect her son’s right to life. Her complaint will also note the failure of successive Australian governments to im- plement the recommendations from the landmark 1991 Royal Commission into Aboriginal Deaths in Custody. “My son had a right to live. He had the right to be safe from harm,” Ms Dun- gay said in a statement. “I have the right to demand accountability and justice for
what happened to David. “The government and the prison had a duty of care to keep David safe, with people who were trained properly to keep him alive. The system failed and David lost his life because of that failure.” A coronial inquest in 2019 found the prison officers involved were not moti- vated by malicious intent. Footage played during the inquest into Dungay’s death showed the man screaming to officers “I can’t breathe”, with one of the prison staff replying: “You’re talking, you can breathe.” Dungay could be seen spitting blood in the footage as he was removed from his cell and placed in another cell, where he was injected with a sedative. He died an hour from the time prison officers first entered his cell. “The Australian government has ob- ligations under international law to pro- tect the right to life and to prevent deaths in custody,” Robinson said. “Yet Australia has failed to implement recommendations from both the Royal Commission and UN bodies to prevent deaths in custody. “As a result, 30 years on from the Roy- al Commission, the rate of First Nations deaths in custody remains unacceptably high, with at least five deaths already in 2021.”
Find out howat
ISSUE 79 I JULY 2021 I LSJ 15
CRIME ‘Sharp and unexpected’ rise in sexual assaults
e NSW Bureau of Crime Statis- tics (BOCSAR) has reported a 61 per cent increase in reports of sexual assault, a staggering jump linked to widespread community attention on matters of sex- ual violence. BOCSAR statistics showed police recorded 940 sexual assaults in March 2021; 300 more than in February 2021 and 61 per cent more than the monthly average. Most of these incidents had fe- male victims. BOCSAR said in a statement follow- ing the release of its quarterly crime sta- tistics that the rise “appears to be due to a temporary rise in victim willingness to formally report sexual violence”. “ e timing of the increase closely aligns with saturation media coverage of numerous sexual assault allegations in late February and March 2021. is triggered a wide-spread community con- versation about sexual violence and con- sent of a scale not previously seen,” the statement said. Recorded assaults involving victims aged between 13 and 20 years old ac- counted for two thirds of the increase. BOCSAR’s Executive Director Jackie Fitzgerald said the preliminary data for April 2021 shows reports of sexual as- sault have decreased. “Typically, only around 10 per cent or 15 per cent of adult sexual assault victims report to police,” Fitzgerald said.
“ e March 2021 increase shows that, under the right conditions, more victims will come forward. More now needs to be done to make sure that victims who reach out are appropriately supported.” e statistics were released shortly after the NSW Government announced proposed changes to consent laws. NSW Attorney-General Mark Speak- man will introduce a Bill to NSW Par- liament later this year, which hopes to legislate an a rmative consent model – clarifying that an accused person’s belief in consent will not be reasonable in the circumstances unless the other person said or did something to ascertain consent. “[ e proposed model] will address is- sues that have arisen in sexual o ence tri- als about whether an accused’s belief that consent existed was actually reasonable,” Speakman said. “No one should assume someone is saying ‘yes’ just because they don’t say ‘no’ or don’t resist physically. Steps should be taken to make sure all parties are consenting.” In the two years to March 2021, 10 of the 17 major crime categories trend- ed downwards, including robbery with a rearm (down 35.2 per cent), motor vehicle theft (down 16.3 per cent) and stealing from a retail store (down 29 per cent). BOCSAR said the large decreases reported in many o ences represent falls in crime associated with the response to the pandemic in 2020.
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“ e March 2021 increase shows that, under the right conditions, more victims will come forward. More now needs to be done to make sure that victims who reach out are appropriately supported.”
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JUDICIARY Longest-serving Chief Magistrate to retire
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People often ask what makes lawyers dif- ferent from other people and why they are so special. What is that essential in- gredient that will separate the few from the many and identify the noble lawyer? Every society, from the ancient to the modern, has had those who have upheld the principles and ethical standards re- quired to sustain a society. Comparisons of societies around the world have displayed the presence of a legal profession (or equivalent) that has a membership with a unifying thread of ethics and professional standards. In today’s global economy, the union of ethics and sustainability is becoming another part of that unifying thread that Judge Graeme Henson will retire on 27 August after more than three decades at the bench. The veteran judge served a total 33 years at Local and District Court bench- es in NSW, including 15 years as head of the Local Court jurisdiction, making him the longest-serving Chief Magistrate in the NSW Local Court. During his time as Chief Magistrate, the Local Court dramatically increased its use of audio-visual link technologies and implemented new efficiency measures to keep the wheels of justice moving. The Local Court bench also saw huge leaps in gender parity improvements, with the proportion of female Local Court magis- trates now at 49.6 per cent. In a statement, NSW Attor- ney-General Mark Speakman applauded Judge Henson’s strong leader- ship through the COVID-19 pandemic and thanked him for his service. MIND YOUR
AnthonyMorrissey Joined as Special Counsel in
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JordanMitchell Joined as Senior Associate in
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Richard Abbott Joined as Partner in real estate (national) Piper Alderman
Kieren Parker Promoted to Managing Partner Addisons
The role of lawyers throughout history, from the Dreamtime to the present BY PAUL MONAGHAN, SENIOR ETHICS LAWYER
will require a legal profession to be agile and receptive to change, in order to ad- dress the challenge of advising our clients on all matters affecting our world and to “provide clear and timely advice to assist a client to understand relevant legal issues … and informed choices during a mat- ter…” (Rule 7). Arising from these professional ob- ligations, future legal discussions in Australia will require the inclusion of clear and timely advice on the claims for “greater management, involvement, and empowerment by Indigenous peoples over country.” These are topics that will be necessary for the lawyer to include in legal advice to
properly “… allow every client to under- stand relevant legal issues …and to make informed choices about action to be tak- en during the course of a matter …”. Changing circumstance illustrates the nature of what makes a lawyer so different. It is that they are well placed to manage this change, to be “a client’s trusted adviser and representative, as a professional respected by third parties and as an indispensable participant … to forestall and prevent conflicts and ensure conflicts are resolved …”. This special role of lawyers from the past and now into the future provides hope and confidence in securing an en- during, just and ethical society.
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REMOTEWORK Governments consider a national framework for electronic document execution Australia’s Commonwealth, state and territory governments will collaborate to create nationally consistent laws for signing and wit- nessing legal documents via video technology such as Zoom or Face- Time. NSW introduced a temporary regulation to enable electronic doc- ument execution during the COVID-19 pandemic in April 2020, then extended the regulation in September, enabling legal processes to continue with social distancing restrictions in place. Several other states and territories also introduced temporary emergency response measures to allow certain documents to be signed electronically and witnessed by audio-visual link. The Law Council of Australia said it was “fully supportive of [the] decision” for the states, territories and Commonwealth governments to work together on a common approach. “During the COVID-19 pandemic, the electronic execution of documents was a game changer, especially in the commercial law space. It will remain a game changer by offering real potential for trade and commerce to flow in a more efficient and cost-effective way,” said Law Council President Jacoba Brasch. “However, the need for consistency across the states and territo- ries is paramount, which is why [this] announcement is crucial.” VOLUNTEERING Call for solicitors to commit to National Pro Bono Target The Australian Pro Bono Centre has invited members of the NSW legal profession to commit to undertaking pro bono legal work in their communities by signing up to the National Pro Bono Target. The centre said the target is a “voluntary and aspirational target” for lawyers to undertake at least 35 hours of pro bono work – the equivalent of a five-day, seven-hour work week – per year. More than 200 signatories have already pledged to meet this target including top-tier law firms, government legal departments, in-house legal teams and individual solicitors. The signatories have collectively reported more than 4.3 million hours of pro bono legal work since its commencement in 2007. “Through involvement in pro bono work, lawyers are able to use their unique skills to support a wide range of vulnerable individuals in our community and provide vital legal assistance to community organisations,” the National Pro Bono Centre said in a statement. “Although the Target is entirely voluntary and unenforceable, becoming a signatory prompts involvement in pro bono work and helps each [lawyer or firm] set a goal for the amount of pro bono work they will undertake each year.”
For the full round-up of Law Society advocacy, see page 66.
National Health (Privacy) Rules 2018 review The Privacy and Data Law Committee contributed to a submission to the Office of the Australian Information Commissioner (‘OAIC’) on its review of the National Health (Privacy) Rules 2018 (‘the Rules’). The submission responded to various ques- tions posed in the OAIC’s consultation paper as part of the review. The submission noted that the Law Society recognises the benefits to appropriately controlled and safeguarded use and sharing of data, particularly where such use and sharing enables the better delivery of govern- ment services and benefits to citizens. However, initiatives that rely on the provision and use of data largely depend on high levels of citizen trust that governments will ensure that uses of data about them are fair, proportionate and consistent with expectations about how that data will be used and shared. Injury insurance arrangements for food delivery riders in the gig economy The Injury Compensation Committee contributed to a letter to the State Insurance Regulatory Authority as part of its consultation on injury insurance arrange- ments for food delivery riders in the gig economy. The submission noted that there are various ongoing reviews (at the Commonwealth and NSW level) and court proceedings on foot in relation to the issue of gig economy workers, which will likely impact any decision made in relation to insurance arrangements. The sub- mission was therefore high-level and principles-based, outlining key elements to consider in the development of any compensation scheme of this kind. Varying development standards The Environ- mental Planning and Development Committee contributed to a submission to the Department of Planning, Industry and Environment on proposed changes to clause 4.6 of the Standard Instrument – Principal Local Environmental Plan. An applicant can seek development consent for a development that contravenes the applicable development standard, pro- vided the applicant can satisfy the requirements set out in clause 4.6. The Law Society is concerned that the proposed revised test introduces further uncertainty into the process. The submission states that we also do not support a test requiring consideration of ‘economic’ factors in determining whether the variation results in an ‘improved planning outcome’.
Go to probonocentre.org.au for more information and to sign up.
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Cross-examination Test your legal knowledge ...
If you can’t beat ‘em, block ‘em In response to Twitter banning one of his controversial tweets, which encouraged a secessionist movement in his country, Nigerian President Muhammadi Buhari banned Twitter.
of anyone found breaching the ban. Ap- parently, the threats did not have his in- tended impact as many people continued tweeting, and “ ank God for VPN” started trending on Twitter in Nigeria. Former US President Donald Trump praised Buhari’s decision, despite signi - cant backlash from Nigerian twitter users. Trump said, “Perhaps I should have done it [ban Twitter and Facebook] while I was President. But Zuckerberg kept calling me and coming to the White House for dinner telling me how great I was. 2024?” several large, rainbow-coloured ood- lights to illuminate their house instead. ey turn the rainbow lights on from approximately 7-10pm every night. “We’re not trying to stick it to any- one,” said Memo Fachino. “It was just a fun way for us to show our individuality and support in a way that didn’t break any HOA rules.” In the UAE, the Khaleej Times has out- lined a woman’s legal case against her husband, brought for accessing her In- stagram and Microsoft accounts with- out permission and changing her pass- words. e Abu Dhabi woman present- ed her case to Al Bayan, the Court of First Instance, which charged and ned him for the o ence before he lodged his most recent appeal. On appeal, the court found that the husband lacked criminal intent, and the case lacked the technical evidence required to uphold the charge. e man was acquitted of all charges.
e New York Times reported that a senior o cial in the Buhari government declared the social media platform’s activity as “very, very suspect”, before announcing a nationwide ban of the platform. e announcement was made – ironically – via a tweet. Nigeria’s Attorney-General Abubakar Malami threatened prompt prosecutions
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
National Reconciliation Week is bookmarked by which two significant legal milestones? Which Prime Minister promised, but never delivered, a treaty for Indigenous people of Australia after receiving the Barunga Statement in 1988? In which year was the Uluru Statement from the Heart first released? What was National Reconciliation Week initially called in 1993? Who was Australia’s first Indigenous member of parliament? Who is the current Minister for Indigenous Australians? In which year did the Royal Commission into Aboriginal Deaths in Custody begin? In which state was Robert “Bob” Bellear the first Indigenous person to be appointed as an Australian judge? The Uluru Statement from the Heart was awarded which peace prize in 2021?
DeLIGHTful display of pride USA Today has reported that Wisconsin man Memo Fachino and his husband Lance Mier were banned by their local homeowner’s association (HOA) from ying a LGBTQI+ ag during pride month due to a technical rule. e as- sociation rule requires that only US ags be own outside houses in the area. Not even a sports team ag is permissible. In response, the couple ordered
Hacking hubby heads to court
10. Which Australian state recently
announced its intention to create the nation’s first Indigenous Voice to parliament?
Answers on page 63
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Briefs HOT TOPIC
RECKONING WITH OUR PAST If reconciliation is to happen and have true meaning, we must – as a nation united – come to grips with and tell the truth about our past, writes JUNE OSCAR AO .
“T here are moments in history where the sudden confluence of past and present events opens to a future of real possibility. I be- lieve that moment is now. Over the past 18 months, the global upheaval of the COVID-19 pandemic has brought into plain sight truths that for so long have been denied by those in power and authority – the truth of en- trenched institutional discrimination, of marginalisation and the rampant growth of inequalities. The now worldwide Black Lives Mat- ter movement has shown us these truths in sharp relief, exposing to the world the inadequacies of our current systems, built upon a long and living history of racial injustices. In Australia, mass in- carceration of our peoples, deaths in cus- tody, the destruction of Juukan Gorge, and the bush fires that have torn through sacred land, are the painful consequences of systems that have failed, and too of- ten refused, to incorporate our rights and lives into the fabric of this nation. These truths laid bare, witnessed by humanity, cannot be unseen. It is in these moments of history when people everywhere begin to question our current structures and ways of operating, that we simply have no choice but to move forward in a different way. The option to return to what was before is no longer acceptable. What do we want the future to be and how are we going to get there?
I am a fervent believer that to move forward with conviction we need to know where we have come from. We need to know how the footprints laid be- fore us have brought us to this present, with all the power and potential of a na- tion reckoning with itself, its past and fu- ture identity – a reckoning that has been a long time coming. Truth of the past can be hard to turn toward, but it can also give us clarity that all our fights – many hard won – have been worth it. That when we turn back without the haze of anger and disap- pointment, there are pillars in place that we have laid that can form the structures we need today. For all of us who know and are en- gaged in the native title system, the tech- nical details force us into a singular and restrictive focus. In attempting to make it work within its current requirements we forget the purpose and intention of native title and what it could still achieve. The Mabo decision overthrew the lie of terra nullius . It gave us a foundational truth that we had needed to move for- ward, ever since the first acts of our dis- possession in 1788. Ever since colonisa- tion, the truth – that we have occupied these lands and waters since a time im- memorial – was urgently needed to halt the perpetuation of grave injustices. We needed it, we thought, to set us on a path to right the wrongs of history through proper compensation, repatriation and
reconnection, and the incorporation of Aboriginal and Torres Strait Islander rights and self-determination into the fabric of the Australian nation. Mabo came at a moment in time when a fundamental reset in our relationship with Australian governments – a time of agreement-making – seemed imminent. In this way, native title was imagined not as an isolated set of rights regarding the use of our lands and waters, but as a key pillar in a broader settlement package. Through an intense political debate, a compromise emerged with the passing of the Reconciliation Act, setting out a process to work through what settlement would be, and how a real, meaningful reconciled outcome could be achieved. And when Paul Keating delivered his historic Redfern speech, post- Ma- bo and the handing down of the Royal Commission into Aboriginal Deaths in Custody, his words seemed to cement this inevitable future. His government
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