LSJ JUNE 2020
Grinding to a halt How the pandemic has a ected the criminal justice system Cultural di erences Can law firms really dismantle embedded toxic oce cultures? Adjourning justice E-trials and dispute resolution in the enduring age of COVID-19 Advocating flexibility The Fair Work Commission responds to COVID-19 with a raft of changes
ISSUE 67 JUNE 2020
Should the cruel act of catfishing be declared a crime in its own right? Laws of deception
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24 Hot topic
36 Corporate change In the post #MeToo era,
Lawyers and singers Judith Edwards and Robert Green on how choir practice during lockdown keeps them on song
In the battle of the beaches, where is the line in the sand between public health and police state? 26 Lunch at the Family Court Kate Allman visits the Family Court for a socially distant lunch break with busy Registrar Brett McGrath
Catherine Fox asks how we can truly change workplace culture
40 Bail out needed
COVID-19 brought criminal courts to a halt. Kirrily Schwarz reveals the human rights impact
Zara Michales has a workout that will train your brain just as sharply as your body
30 Cover story
56 Cairo calling
Angela Heise on how embracing transition can help reset your mind in an uncertain time
Victims of catfishing can be left bankrupt or even dead: is it time to criminalise it? Amy Dale reports
Ute Junker travels to Egypt’s sprawling capital for a peek at the pyramids and the city’s hidden treasures
ISSUE 67 I JUNE 2020 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News
78 Criminal law
The latest key developments in advocacy and law reform 68 Practice and procedure Adjournment cases focus on ‘just, quick and cheap’ dispute resolution during COVID-19 The Fair Work Commission’s flexible approach to modern awards during COVID-19 74 Practice and procedure Top tips for advocates adapting to the ‘new normal’ in the virtual courtroom 76 Family law and arbitration 71 Employment law
Were the raids on Newscorp and the ABC valid? The verdicts are in but the controversy continues
Total fire bans and the denial of indemnity
23 Expert witless 23 The LSJ quiz 28 Out and about 44 Career matters 48 Doing business 49 Career coach 52 Health 60 Youwish 62 Books and lifestyle 64 The case that changedme
82 Personal injury
The aftermath of death under the Motor Accident Injuries Act
84 Family law
International child abduction and the Hague Convention
86 Criminal law
Is Weissensteiner dead? The High court charts a new direction in Strback v The Queen
The ins and outs of the new National Family Law Property Arbitration List
89 Case notes
The latest High Court, Federal Court, family, criminal, and elder law & succession judgments
70 Library additions 106 Avid for scandal
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A word from the editor
Oh, how quickly we become accustomed to a new way of living and working. In what seems like a ash, this is the third edition of LSJ produced remotely. And it all seems so normal now. With our new requirement for physical distancing comes an increased reliance on technology-assisted communication, which we are so fortunate to have – but it can have its drawbacks. Some days, I feel completely drained after multiple video meetings
Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor
(why is that?) and nd myself making some good old-fashioned phone calls instead. e current reliance on technology makes this month’s cover story even more timely. For those of you unfamiliar with the term “cat shing”, there is a full explanation in Amy Dale’s comprehensive piece on page 30. In a nutshell, though, it is the art of deceiving someone you have never met in person and convincing them you are someone you are not. And how do they do it? Technology. e reasons people “cat sh” are varied, and understanding the psychology of both perpetrator and victim can be challenging. But what is very real and perhaps easier to comprehend is the pain and trauma this act can cause. People have ended up humiliated, heartbroken and angry. Some have even taken their lives under the weight of it all. It is a fascinating look at a growing phenomenon and the question is rightfully asked: is the law adequately equipped to deal with this most cruel form of deception?
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 e 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 speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
AMY DALE Cover story p30
JUDGE JOE HARMAN Family law p76 Judge Harman is a Judge of the Federal Circuit Court and a National Arbitration Judge for the new Family Law Property Arbitration List. He joins accredited family law specialist and arbitrator Matthew Shepherd to discuss the practicalities of the new Arbitration List.
THOMAS SPOHR Criminal law p95
CATHERINE FOX Feature p36
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 reports on the disturbing and deadly trend of catfishing and the calls to criminalise it.
Thomas is a solicitor at Legal Aid and regular LSJ criminal law contributor. This month, he delves into two NSWCCA decisions: one on the compellability of spouses to give evidence, and another which may have turned Local Court sentencing on its head.
Catherine Fox is a Walkley Award-winning journalist, author and presenter who is considered a leading commentator on diversity and workplace issues. This month, she investigates what law firms must do in order to change toxic cultures.
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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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6 LSJ I ISSUE 67 I JUNE 2020
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ISSUE 67 I JUNE 2020 I LSJ 7
W hen Australians went into lockdown on 22 March this year as part of measures to restrict the spread of COVID-19, there was a great deal of uncertainty of the road that lay ahead. Businesses were forced to close and or lay o sta , employees were sent home to work remotely, schools and universities went online, courts were operating by audio-visual
links, jury trials were suspended, and domestic and international borders closed. For many, the fear of the social and economic impact of these measures was as great as our fear of the virus itself. Now, two months down the track, we nd ourselves at a crucial point on the road to recovery. Face-to-face civil hearings have resumed in some courts, jury trials are set to resume later this month, people are gradually returning to the o ce, school students are back in classrooms, intra-state travel is allowed, and in-house dining has resumed in pubs, clubs and restaurants. While restrictions are easing, we are being urged to remain vigilant and disciplined about physical distancing to prevent a second wave of infection. With thousands of people working from home at the height of the lockdown, one of the silver linings of the COVID-19 crisis has been the shift in attitudes towards exible and remote working. As we continue to adjust and respond to our rapidly changing circumstances, the pandemic could mark the start of a transformation in the way we conduct the practice of law, the way our courts operate and administer justice, and the advent of more exible workplace arrangements. Being adaptive and resilient to change could well become the hallmark of 2020. Given all this disruption in the workplace, it’s timely that the Law Society is working with a leading multi-disciplinary team, led by Professor Rae Cooper at Sydney University’s Business School, on an Australian Research Council (ARC) Linkage Project which will identify workplace transformations currently unfolding in the law and design strategies to construct a gender-equitable future of work in the profession. e Linkage scheme promotes national and international research partnerships between leading academics and high-pro le industry partners to tackle complex problems to bene t society. Additionally, the Law Society’s ongoing FLIP Stream collaboration with UNSW Law is about to turn its attention to another crucial issue for the legal profession: “ e sustainability of law and lawyers.” e ndings from this research and the ARC Linkage Project will certainly be both timely and bene cial for the profession.
Richard Harvey, President, Law Society of NSW
8 LSJ I ISSUE 67 I JUNE 2020
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ISSUE 67 I JUNE 2020 I LSJ 9
Mailbag LETTERS TO THE EDITOR
IsNSWnowapolicestate? A lookathow the raftofCOVID-19 rulesare impactingcivil liberties Camaraderieandconcern With the justice system turnedon itshead, howare lawyerscopingwithchange? Cruisin’forabruisin’ Howcruise shipshavehighlighted thecomplexitiesof international law Courtingtechnology Howwellhaveourcourtsadapted to thepandemic’s forced innovation?
ISSUE66 MAY 2020
Becoming a solicitor in the time of corona In 2013, as a single mum of two young children, I made the decision to study law. I quipped to my father that “it couldn’t be that hard could it?” I worked part time and studied for the rest of my time. Turns out it was incredibly dicult, both mentally and financially, but nothing could deter me from fulfilling my pursuit of a better life. At the start of each semester, the smell of new textbooks and the thrill of knowledge soon to be canvased is something I still recall fondly; but by far one of my most uplifting experiences was volunteering my time in legal centres. It confirmed for me that I was pursuing the right dream. Finally, after a seemingly endless number of essays, exams and semesters I graduated in December 2018. College of Law was a whole new world of practical knowledge and further financial struggle as I worked for nearly a year to complete the mandatory 75 days of work experi- ence. I volunteered in five dierent firms throughout 2019 and learnt a lot about the law, myself and what sort of firm I wanted to work in. Eventually, on my birthday in September, I began working in a wonderful family law firm with a group of funny, clever and nurturing colleagues. I win my idea of a ‘legal lotto’ and am oered a paid position and the opportunity to stay on after PLT is complete and I am admitted. In late November, I receive an email from College of Law that tells me ‘you are now complete’. A few days after Christmas, I cobble enough money together to pay the $920 admission fee and hope I can be admitted in March 2020. Finally, I receive an update that my admission is confirmed for 27 March 2020. About a week before, COVID-19 is ocially labelled a pandemic and lock down conditions slowly start to be implemented. I check again and my admission ceremony becomes ‘a certificate will be posted once I sign a form and send it back in’. All the years of hard work have come to this … law in the time of corona. Work colleagues are kind enough to share champagne and gifts, but all celebratory lunch plans with friends and family are postponed indefinitely. My employer kindly pays for my practising certificate and I check the Law Society roll every morning. I’ve been told that once my name is on the roll, I will ocially be a solicitor. The days pass into weeks and finally, unceremoniously, one morning on 16 April I discover my name is now on the roll. My heart skips a beat as I realise I am now ocially a solicitor. Jane Farquhar
Adeepdive intohowCOVID-19 isa ectingyou,theprofession, andtheruleof law SPECIALEDITION Lawin the time of corona
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WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
Entering the climate danger zone
temperatures and sea levels by the end of this century. Dr Roy Warren Spencer, former senior scientist for climate change at NASA’s Marshall Space Flight Centre, stated, “One of the biggest omissions of the AR5 (last major report of the IPCC) continues to be almost total neglect of natural forcing mechanisms of climate change (e.g. increased sun- spot activity) and the report reveals a dogged attempt to salvage the IPCC’s credibility amidst mounting evidence that it has gone overboard in its attempts to scare the global public.” Dr Vincent Gray, a leading New Zealand climate scientist and founder of New Zealand Climate Science Coalition, said, “There is no scientific evidence that human emitted greenhouse gasses are a harmful influence on
the climate”. Dr Piers Corbyn, prominent environmental scientist of the University of London, recently stated that “global warming is primarily caused by variations in sun- spot activity. The findings of the IPCC are one hundred per cent fake. Sunspot is the major influence on climate.” Highly distinguished Australian sci- entist Dr David Evans, former climate modeler for the Aus- tralian Greenhouse Oce, has revealed that after unpacking the architecture of the basic climate model that underpins all the science of the IPCC it had been applied incorrectly and that the IPCC had overes- timated future global warming by as much as ten times. Even if we accept that the IPCC’s theory that AGHG is the pri- mary cause of global warming and therefore that all nations
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The model statute for climate litigation proposed by the International Bar Association as reviewed in the article of Kate Allman in the April LSJ gives cause for great con- cern. Primarily because the scientific debate on whether anthropogenic greenhouse gases (AGHG) has any eect on climate is still ongoing and many leading world scientists and scientific organisations disagree with the theory of the International Panel on Climate Change (IPCC) of the United Nations that the global warming which has occurred in the past eighty years or so has been caused solely by substantial increase in AGHG and will result in alarming consequences including large increases in
10 LSJ I ISSUE 67 I JUNE 2020
LETTERS TO THE EDITOR
must, in accordance with the Paris Accord, reduce their out- puts of AGHG, the question that arises is that, if a nation that is making a conscientious e ort to comply with its rea- sonable obligations to restrict its AGHG emissions but fails to meet its commitment, does it have exposure to any liability under the proposed legisla- tion even if it is a very small nation whose output would have a negligible e ect on climate worldwide? Another consideration is that in 2019 China alone was responsible for the total increase of AGHG of the entire world so, if this trend continues in the future, is it logical that any other nation should have any legal responsibility for any alleged adverse e ects of AGHG on the climate, particularly if compliant with its Paris Accord commitment? A further inter- esting consideration is who would be legally qualified to decide the appropriate AGHG emissions reduction obligation applicable for any nation? I tend to agree with your correspondent H R Cole (in the same LSJ issue) who declared, “What emotive non- sense.” Unfortunately, it seems that environmental law is set to move into highly unpredict- able and unchartered waters. Changing the pace from that pesky old rat race In the corporate world it is sometimes difficult to stay inspired; we may find ourselves getting lost in a repetitive routine of consis- tent diligence, the need to finish our work to achieve a numerical goal and essential- ly getting to the front of that “rat race”. When this routine is taken away from us, the initial shock might lead us to panic and wonder what other methods can lift us to that bar of success. In these tough times, where many of us have been subjected to reduced work hours, now might be the time to walk away from Peter N Dunlop, Retired solicitor
that desk and get inspired. In fact, I challenge you to flip the situation to one of positivity; to view the extra hours a week as a gift. View it as an opportunity to reach beyond your desk, beyond your chair, beyond your computer and beyond that table. The truth is, while these times are testing, it is one that we may never relive. How many of you wanted to try something new, gain a new skill, complete a short- term project – and that 9 to 5 (sometimes 9 to wee hours of the night) job became your blockage? Now is the time to reflect and act. I say NOW because the rest of the world is in the same boat with you. This global boat we’re cur- rently on means there is no race; we’re all sailing at the same pace towards the same destination. People have come together to o er opportunities and share experiences that may not have been provided in another time; free online courses, discounted exercise programs, DIY home projects, assistance with planning that side business you’ve always wanted to achieve, volunteer- ing for causes you’ve never had the time for or simply the time to catch up on life, with family and get that rest your body has been crying out for. Reduce those stress and anxiety levels and embrace these opportunities; the Rat Race has come to a temporary halt. If your hours have been reduced, clock o accord- ingly and use this new found ‘me time’ for your benefit. Stay curious, stay inspired; in these unprecedented times, it will help you go beyond the boundaries you have ever set yourself and help you prepare a stronger foundation for life post COVID-19. Nabilah Reza It’s about time One positive that has emerged from courts in NSW dealing with COVID-19 has been being able to appear by AVL. There has been a great deal of time and money saved by
not having to continue to line up like lawyers of centuries past, waiting for a turn at the bar table. But why did it take this global emergency to get to this point? All around us, taxation and customs author- ities have been doing their business online for decades, as now does the business of land titles, and payment of state duties. The clever coun- I perused the latest edition of LSJ with interest, pondering what we the legal profession have to say about these inter- esting times. There certainly were some inspiring stories of people working from home, and valuable commentary about the extraordinary ero- sion of freedoms imposed by a government that hitherto would have purported to be sitting in the liberal tradition. Overall, however, I wonder whether it is worth question- ing of the actions of the NSW State Government relating to COVID-19. I am a great fan of raising the dicult questions, and while I truly appreciated the warm, engaging image of Mark Speakman enjoying the company of his (potentially) designer dogs at home, I would have preferred some hard questioning about what is happening in NSW. I am particularly interested in the explanation for how the party that believes in individ- ual freedoms has so quickly become the party that spon- taneously removes them. In short, I would favour some pre-emptive opposition and complaint, before it becomes de rigueur. I would dearly love LSJ to ask Mark (or any State Government representative?) to clearly define goals and strategy around COVID-19, and perhaps to explain how they have justified the party of individual freedom morphing literally overnight into the party that represses freedom. From the point of view of try? I don’t think so. Joe Weller, Solicitor Asking the tough questions
public health policy, we seem to be leaping seamlessly from an eradication position (think New Zealand, the land of the long white illusion), to a suppression position (think Sweden, but we don’t have to be so laissez faire ), and back again. After all, isn’t it true that, ethically and economically, the value of life is relative? But we seem to have entered an artifi- cial realm of absolutes, making it possible for our leaders and indeed the public dialogue to flit free of the bonds of nuance (and thus the logical consequences of decisions). The death of a 95-year-old resident of a nursing home can be couched therefore as a tragedy, which all of soci- ety must be conscripted and restricted to prevent at any cost even if said restrictions do not actually guarantee the prevention of nursing home deaths at all. On the other hand, the broad removal of freedoms, impacting vast swathes of society not just now but long into the fore- seeable future, do not seem to make much difference. Notwithstanding the obvious weight of the argument that the long-lasting economic damage occasioned by said restrictions will surely have a whopping cost in lives long into the future. Of course, I am speaking from reality land in the suburbs, where work- ing from home is not a thing. Walking the dog, wearing my pyjamas, zooming my col- leagues, wow, and still getting paid! Um, no. I can do all those things, but it will be without reward. Working from home just means not working in the economy of the little people. So this means working with- out pay, sta reducing hours drastically with no assurance of ongoing employment at all, and so on. And not working means swathes of the econ- omy becoming a permanent ghost town, a fact which the NSW State Government presumably is becoming pressingly aware of as they contemplate the loss of their
ISSUE 67 I JUNE 2020 I LSJ 11
Mailbag LETTERS TO THE EDITOR
The march goes on One day, while you are walk- ing through some bush land, you happen upon some oddly-placed stones. Curious, you walk closer to the uneven structures and, warily, place your hands upon them. You wake up in 1899 NSW – Claire Beauchamp Randall Fraser style. After a dicult but suc- cessful attempt at sourcing a dress to cover your complete- ly inappropriate Lorna Jane tights and sports bra, you meet some lawyers – conservative, elitist men, most of them from a privileged social class. They regard themselves as superior to you, simply because you are a female. In your time, you were a solicitor running your own firm. You knew the law well and you were a brilliant lawyer. Although you are aware of the diculties faced by women of the time you are now in, being an optimist and slightly stubborn, you try to enrol in the Sydney Univer- sity Law School. As you walk towards the university where you spent many years learning about the law, you stop and admire the structure. Unfortu- nately, Professor Pitt Cobbett, the Dean, is not on leave. He looks at you and chuckles, muttering something about the absurdity of your attempt to enrol. He doesn’t accept you as a student, simply because you are a female. A few days later, you meet a 27-year-old lady who introduces herself as Ada. She is very attractive and extremely intelligent. She tells you she is wanting to enrol in law school. Your insides flutter with excitement and you tell her to make sure she attends the university when the Dean is on leave. She seems con- fused. A few days later she tells you the good news. She has been accepted as a student. As she walks away, she looks back and asks how you knew that she should avoid Profes- sor Pitt Cobbett. You shrug and blame it on intuition. A few months later, you meet a handsome man by the name of Jamie. He has long, red hair
own shiny precious, the golden stamp duty egg, carefully cos- setted and treasured by them for so long. Until now. What’s this! Our enthusiastic assault on the property transaction goose has brought about its demise! I am cynically imagining surprise. At some future point presum- ably the question will be asked: was the great 2020 removal of freedoms, that delivered a series of life-threatening blows to the State government’s property transaction goose, not to mention that multitude of other geese relied upon by the great unwashed for their daily bread, justified? Presumably this question will arise when the State is busily trying to replace said golden goose from other sources. About the same time that the great unwashed, who cannot simply requisition someone else’s geese to replace the one put down by their own govern- ment, will perhaps be sitting on the (by then) extremely thin public purse. And putting aside philosophical questions about freedom and at what point do we permit our supposed liberal democracy to act in a manner very similar to that of any of your good old autocracies, there are pragmatic questions about public health goals to be answered. For instance, is an almost complete lockdown necessary to make a dierence over time to something like Covid-19, or is it necessary to give primacy to the immediate medical imperative over all others, etc. I would imagine that, ultimately, if infection and mortality rates in places like NSW, over time, match those in other jurisdictions where the economy was not stamped out by their own government, the questioners (or complainers?) will then become rather stri- dent. And up until now there has been no expert assurance that I am aware of to the eect that delaying the inevitable with Covid-19 will meaningfully alter those rates to the point that would justify where we cur- rently sit. Tom Adams
and beautiful eyes. You fall in love and, before long, are married in a small church. You remain friends with Ada and watch in admiration as she overcomes numerous hurdles. Hurdles you had read about. Hurdles that you had never really given too much thought to. About three years later, in 1902, Ada visits you, her eyes gleaming. As she tells you she has graduated, you hug her tightly, tears flowing down your face. You tell her you are so proud of her – she is, after all, Australia’s first woman to graduate LL.B. Through her own tears, she tells you of her plight. She details the discrim- ination. She lists the restrictive legal disabilities surrounding her. She tells you she just doesn’t understand, that she was as capable as the men in her class. That she under- stood the material as well as them. That she was able to formulate arguments just like them. That her emotions were not a hindrance to her ability to practise law. She cries as she vocalises her concerns. I wish to seek admission to practise, she says. Although coloured with confidence, her voice is shaky and tinged with well-founded doubt. You join women’s organisations in an attempt to support Ada’s (and one day your) endeavours. You help write numerous letters to successive govern- ments, requesting that the law be altered – but it takes 16 years for change to come around. With the passing of the Women’s Legal Status Act in 1918, Ada is finally able to gain admission to practise, becoming the first woman to be admitted to the NSW Bar in 1921. Your friendship with Ada has been cemented through- out the years. She is not only your best friend, but confidant too. She is your mentor and, perhaps more accurately, you are hers. Armed with the knowledge of what’s to come, you are able to provide her with incredible advice. When she accepts her first brief, she tells you about it. When she feels
overwhelmed about a case, she talks to you about it – and you give some pointers, being careful all the while, of course, to not reveal your time travel- ler status. Once in a while, she looks at you and says you are really good at this, that it is as though you have completed a law degree yourself. You both laugh (yours quite uneasy) and you tell her that maybe, one day, you’d consider it. You rejoice at the progress women have made and you give her carefully worded reassurances that things will get better, that, “hopefully” in about a hundred years or so, women won’t be subjected to discrimination. That in about a hundred years or so, women will be equal to men. And then, as you enter a sort of dream-like state, you recall your own time. You remember being addressed as a “Sir”. You remember being told that women have to wear knee-length skirts to court. You remember being paid less than your male colleagues. You remember being told you are wearing too much make-up to be respected. You remember being asked about your plans to have children during a job interview. You remember the unwelcome advances that were tolerated so you could keep your job. Twenty-six years later, Ada dies. As you weep, you realise she spent almost as much time studying and attempting to gain admis- sion as she did practising law. You remember the day she told you about Professor W. Jethro Brown and how he encouraged her to persevere with her legal studies, telling her that her reward would be the glory of the pioneer. As you stand there, remember- ing this courageous woman who, against all odds and in the face of extreme adversity, continued to march on, you realise the marching cannot stop just yet. That the march- ing will not stop for another 90 years and that it would probably not stop for far longer than that. Alexia Ereboni Yazdani
12 LSJ I ISSUE 67 I JUNE 2020
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Time to kill these costs clauses
Following on the “Counting on Costs” article in the May 2020 LSJ , I’d like to suggest banning clauses in cost agreements that create a charge on a client’s real estate and give lawyers power to lodge a caveat. Here are my reasons. First, they are a case of lawyers using superior knowl- edge to gain an advantage over people who inmany cases won’t understand the potential impact of the provisions. Second, most lawyers can use their trust accounts to get paid progres- sively and protect themselves from a build-up of costs. Third, lawyers – like me – who choose to avoid the inconvenience of running a trust account must accept the consequential busi- ness risk. Fourth, these clauses can have absurd consequences and provoke severe conflicts of interest; here are two instances: One, in theory, a lawyer submit- ting a cost agreement to a new client that contains such provi- sions ought to tell that person to get independent legal advice before signing it. Imagine how that person would feel, having to track down another lawyer to advise on the terms of engaging the very lawyer they want to trust with their aairs? Two, a firm might be acting in a family law property dispute, in which its client is incurring heavy costs. Following settlement or a court order, they may be engaged to handle the sale of a matrimonial property on which they have placed a caveat. A dispute may erupt prior to set- tlement over their fee claim in the family law case, prompting them to hold up settlement by keeping their caveat in place until they are assured of being fully paid. The sale contract has a time limit for settlement, so this may put the seller at risk of the contract being rescinded and being sued for damages. These clauses are a blot on the profession; the sooner they are banned and lawyers who are found to use them in defiance of the ban are sanctioned, the better. David Grinston
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ISSUE 67 I JUNE 2020 I LSJ 13
TECHNOLOGY NSWallows witnessing documents via video call – but are there privacy risks? BY KATE ALLMAN
ulation enabling remote witnessing of documents was “sensible” in the context of the coronavirus pandemic. “Lots of legal processes have risks and there are aws when witnessing things in person, too. I don’t think this com- pounds those fraud risks signi cantly – given the other risk might be catching and spreading COVID-19,” she said. Bennett Moses said that lawyers were likely to face bigger challenges than foul-mouthed Zoom-bombings when pivoting to online and remote work. “If you think about people’s environ- ments at home, they often work on their own PCs, and they may not have paid as much attention to security settings,” she said. “To what extent are rms able to have the same level of protections on home networks? Firewalls and routers and passwords may not be as strong at home. Who else is in the room and could be listening? Law rms typically vet their employees in some form – but they can’t vet partners, children or anyone else.” Tim Gole, a partner at Gilbert + To- bin and leader of the rm’s Technology and Digital group, said his rm had strict cyber security protocols that em- ployees were regularly educated on. Ev- ery lawyer knew, for example, that for- warding emails to personal addresses or taking documents home on USBs were strict no-go’s. But Gole admitted smaller rms or sole practitioners may not have the same expertise or IT resources to protect con- dential client data. “COVIDcreated very short sharp pres- sure point to force working from home. It probably has forced lawyers to move onto platforms and work in ways that haven’t properly been vetted,” he said. Gole noted his rm’s IT team had seen a rise in phishing and scam attempts associated with COVID-19. But he also said the pandemic had a surprising up- side: reducing lawyers’ paper trails. “COVID has forced us to go paper- less – which is actually a great con den- tiality protection. Disposing of con - dential paper documents was always a risk for lawyers and their clients.”
As o ce spaces have been forced shut by COVID-19, many law rms have shifted the bulk of their legal work online in the space of a few weeks. Some have been left wondering whether this rapid transition could introduce previously not-contemplated privacy and security risks for lawyers and their clients. In particular, a new regulation intro- duced last month by the NSW govern- ment that allows video technology to be used to witness legal documents remote- ly has thrown client con dentiality and privacy into question. “Video technolo-
creasingly common, and the company has been hastily updating encryption and privacy protocols to cope with it. Buckland admitted “most software has aws”, but that none of the discov- ered Zoom aws would prevent him us- ing the platform to teach his university courses. But, he said, he would avoid holding con dential meetings over Zoom. He also warned it is di cult to guarantee privacy of audio-video con- ference conversations on any platform – and lawyers should be aware of that. “So-called smart
devices such as smart TVs, smart speakers, Siri or Alexa on your smartphones, can physically listen in to your conversations. Your internet service provider or others on the NBN overtly or covertly have the po- tential to intercept and record what you transmit in conversa- tions. Australia’s suite of anti-terror legisla- tion gives wide powers
gy can be intercept- ed and recorded at many points along the chain,” warned Professor Richard Buckland, an expert in cyber security and lecturer at the School of Computer Science at UNSW. “ e most likely scenario is your home computer could be unknowingly com- promised by malware.
“Video technology can be intercepted and recorded at many points along the chain.” Professor Richard Buckland
Malware has the potential to record or reveal everything you do; what you type, your les, and whatever is on your screen, in front of the camera or over- heard on the microphone.” Free video conference platforms have seen a rise in security aws exposed by a surge in use during lockdown. “Zoom-bombing” – where intruders hack into a conference call and post slurs, threats or pornography – has become in-
to many organisations to intercept and keep recordings of what is sent over the internet,” he added. “Conversations that are con dential are best not done on your home com- puter at all. Use the phone, face to face, or a ‘cone of silence’ if you can nd one.” Lyria Bennett Moses, Director of the Allens Hub for Technology, Law and Innovation and a professor in the law faculty at UNSW, told LSJ the new reg-
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NEWTHISMONTH LAWASIAHuman RightsWebinar Series 2020 A number of LAWASIA events scheduled for 2020 have been postponed due to coro- navirus. e organisation is instead hosting a series of free webinars to keep the pro- fession in Asia informed and updated. e rst of these covers access to justice, gov- ernment accountability, and human rights amid the pandemic. Find out more at lawasia.asn.au/current-webinars Communicating in the virtual courtroom What’s the best way to convince a judge through a laptop camera? How should you present on screen? e Australian Advoca- cy Institute has produced a video to help legal practitioners meet the demands of e ective communication using remote vid- eo access to court. Watch it on Vimeo at vimeo.com/415727777 Save the date: Annual Members Dinner 2020
Bret Walker SC
Commissioner, Special Commission of Inquiry into the Ruby Princess
If we must use the term ‘a national conversation’, at least let it have substance. Without proper disclosure of critical matters known only to government, how can we – why should we – discuss anything about the topic in question with them?
Law Society President Richard Harvey and the Council of the Law Society of New South Wales invite you to save the date for the 2020 Annual Members Dinner, which is scheduled to be held on ursday 22 October. Registration and more details to come at lawsociety.com.au/events
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Courtney Bowie, founder and CEO of Her Lawyer, was recently crowned the winner of the Emerging Leader category at the Telstra Business Women’s Awards. Passionate about women in business, Bowie opened her own virtual law firm and continues to give back to the community during COVID-19. sixminuteswith COURTNEY BOWIE
on their team. We focus on women who are bringing in money and ensure they have access to legal services to make that a reality. When I started the rm, I told my family and friends, “I’m going to have a virtual rm and I’m going to get most of my clients through social media.” ey said I was insane and that it’d never work, but it did. I was so excited I did a little dance. Also, this might be a strange response, but [I felt] validated. Even though my career has taken a non-traditional path and people have questioned me along the way, win- ning this award showed me there is val- ue in the work I’m doing. It’s such a joy working with women and it has made working in the law all the more satisfying. How did you feel when you won at the Telstra Business Women’s Awards? How has your life changed due to COVID-19? It is a little bit more hectic being at home with my husband and eight-month-old son. It is challenging trying to be good business owners and good parents at the
same time. I thought I’d be less busy during COVID-19 but I’m actually busi- er. I’m interested to see how this period of remote working changes attitudes around exibility and whether this will a ect fe- male lawyers’ pay and promotion. is is an online support group I creat- ed to provide Australian business own- ers with reputable information about COVID-19 and business. We mainly cover changes to legislation, JobKeeper, the Fair Work Act and leasing. My role is to give updates on the legislation as it changes, help decode it and give some plain English summaries. What do you do in your spare time? I’m spending quite a bit of time being a mum at the moment, which is a big learning curve. I’m doing a lot of walking but normally I like to vintage shop. I love recycling furniture, doing up things from Facebook marketplace, and putting to- gether out ts. I’m very interested in sus- tainability in my work and private life. What is the Coronavirus COVID-19 Business Support Group?
Why did you pursue a career in business law?
I started o on a traditional legal career path, working my way up in a rm. Early on I worked at Gadens in their nancial services recovery, doing the backend of business law. is involved dealing with the recovery for banks when businesses had gone bust. It was just heart breaking. My bosses used to call me a “bleeding heart” because I felt so sorry for people and thought this really could have been avoided if they’d got good advice up front. One day I realised I have this back- ground in law and all these people need help, so why don’t I combine my skill set with what I’m really passionate about. I feel like women are underserved by traditional law as clients and as employ- ees. e traditional practice of law is very male dominated and could be done better in a way that’s more accessible for women. I created Her Lawyer as I want- ed women to feel empowered in getting legal advice and feel like their lawyer was What prompted you to create Her Lawyer?
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POLICE CONDUCT Strip-search report flies under the radar
went beyond the law when they required a 16-year-old girl to take o her clothes, without a parent or guardian present, at Splendour in the Grass music Festi- val in Byron Bay in 2018. According to evidence provided by the girl, the door ap to the tent area where she was being searched did not close properly, worsen- ing her humiliation and terror. e reports concluded that police training in the LEPRA was seriously inept and should be reconsidered. “ e current manner in which po- lice are trained in their powers and responsibilities should be seriously re- considered,” the report into “Operation Mainz” read. “ is investigation demonstrates that whatever educational methods are being utilised by the NSWPF to inform o cers of their powers and responsibil- ities in relation to LEPRA … are not being universally applied in the practice of policing.”
BY KATE ALLMAN
Reports by the Law Enforcement Con- duct Commission (LECC) on its in- vestigation into strip searches by NSW Police slipped quietly beneath the pub- lic eye last month, overshadowed by the COVID-19 news cycle. e commission handed down ve reports into allegations of illegal strip searches by NSW Police on Friday 8 May. e reports were published online at the same time as news was breaking about Prime Minister Scott Morrison’s “three-step plan” to reopen the econ- omy after the nationwide COVID-19 lockdown. e reports found all ve searches
investigated had been undertaken un- lawfully, and none of them resulted in o cers nding prohibited drugs. It was also scathing in its criticism of individual o cers’ lack of knowledge of the law gov- erning searches. “ e evidence of all o cers was that they had no idea they were committing multiple breaches of LEPRA [Law En- forcement Powers and Responsibilities Act],” one of the reports said. is report investigated the unlawful strip search of a 16-year-old Indigenous boy in the street of a regional town, and later in the garage of a local police station in November 2018. Another report found police o cers
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PRISONS Rate of Indigenous youth imprisonment is falling, but ‘systemic problems’ remain
BY AMY DALE
While the rate of young Aboriginal and Torres Strait Islander people under youth justice supervision has fallen over the past ve years, legal experts say new gures continue to “highlight systemic problems”, including the overrepresen- tation of Indigenous youth in custody. e latest report on the data by the Australian Institute of Health and Wel- fare (AIHW), Youth Justice in Australia 2018–19, released on 15 May detailed the rates of young people aged between 10 and 17 years under youth justice su- pervision, both in the community and in detention. “ e rate of Indigenous young peo- ple aged 10–17 under supervision on an average day fell from 176 to 172 per 10,000. e rate of non-Indigenous young people fell from 12 to 11 per 10,000,” Anna Ritson, spokeswoman for the AIHW, said.
Despite the encouraging fall in su- pervision numbers, the report said In- digenous youth still represented about half of the young people under supervi- sion in Australia. is is despite Indig- enous and Torres Strait Islander people representing just 6 per cent of the 10-17 age group in Australia. Based on the most recently available 2018-19 gures, Indigenous young peo- ple aged 10–17 are 16 times as likely to be under supervision as non-Indigenous young people in 2018–19. Data shows many who enter the youth criminal jus- tice system will also migrate to the adult system when they turn 18. As many as 1 in 3 inmates currently in the adult prison are Aboriginal or Torres Strait Islander. Ritson noted “being under youth jus- tice supervision doesn’t always mean a young person is in detention”. “Around four in ve young people
(4,767) received community-based super- vision such as home detention, bail, parole and probation,” she said. Law Council of Australia President Pau- line Wright, while praising the reduction, said the gures “continue to paint a picture of an Australia where being Indigenous, coming from a remote area, or growing up in low socioeconomic circumstances in- crease a child’s likelihood of contact with the youth justice system”. “ e report of a slight reduction over the past ve years … only serves to high- light systemic problems,” Wright said in a statement. “We are also concerned that there has been no improvement to the rates of children in detention awaiting the outcome of their legal matter or sentencing … this is partic- ularly disturbing given that when they do come to court, many of these children will not be sentenced to any time in detention.”
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