LSJ - July 2015
THE EPIDEMIC CHANGING OUR LEGAL AND SOCIAL FABRIC ICE, VIOLENCE ANDJUSTICE
WIVESANDWARRIORS HOW AUSTRALIAN WOMEN FOUND THEIR VOICE DURING WWI
7 ETHICSNIGHTMARES YOU DIDN’T EVEN KNOW YOU HAD BURSTINGAT THE SEAMS THE SHAMEFUL STATE OF NSW PRISONS TERRORANDCITIZENSHIP AN ANALYSIS OF GLOBAL TRENDS CAPACITYANDLITIGATION A BLUEPRINT FOR REFORM IN NSW
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T he Legal Profession Uniform Law commenced on 1 July, bringing around 70 per cent of Australian lawyers into a common system of regulation. I wish to acknowledge the ongoing and long-term support of all political parties in NSW as we have worked towards delivery of the scheme. It is a new world in which we now practice – one that delivers lawyers the bene ts of a common market and provides consumers with a regulatory scheme characterised by consistency and accessibility. For those who are not completely up to speed with the changes, I remind you that the Law Society has developed a series of CPD sessions and materials to assist. You can nd more information here: lawsociety.com. au/ForSolictors/Education. I recently wrote to the Commonwealth Attorney-General requesting urgent consideration be given to the implementation of legal capacity and litigation guardians in the Family and Federal Circuit Courts. ere are currently no such arrangements in place with the Attorney- General’s Department. I am concerned that where there is no litigation representative, court proceedings cannot progress, causing delays or dismissal of matters. ere were celebrations around the world on Monday 15 June to mark the 800th anniversary of the inception of Magna Carta. Rule of law concepts taken from this document have endured. e Great Charter is widely credited with curtailing the monarchy’s divine right to rule, introducing the doctrine of separation of powers in a modern state. To my mind, the real heroes of the Magna Carta were not the barons or the king but rather the scribes who drafted its wonderful clauses, such as clause 39 promising “no free man shall be taken or imprisoned … except by the lawful judgment of his peers or by the law of the land” and clause 40 that says “to no one will we deny or delay right or justice”. On a related topic, I also note that at the 5th National Access to Justice and Pro Bono Conference in Sydney at the end of June, the Hon. Mr Justice Mostyn, Judge of the High Court of Justice in England and Wales, spoke at length about the legacy of Magna Carta and access to justice considerations in the Family Court of England and Wales. For those interested, a copy of his ne speech is available to download at: a2j15.com.au/docs/Mostyn_speech_to_NAJPBC_Sydney_18_ june_15.pdf
JULY 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
is month’s cover story, “Ice Age”, by LSJ reporter Kate Allman, delves into the murky world of ice addicition and its e ects on the criminal justice system in NSW. As someone who grew up in country NSW and now resides in Sydney’s inner city, interactions with ice-a ected individuals are becoming more frequent in my daily life – and the fact that ice users can be so violent and unpredictable means an element of fear is creeping in. But it’s not just the cities seeing an increase in ice use. Many a country town is su ering under the weight of ice addiction and the resultant crime, as well as the uncomfortable realisation that dealing with the issue is proving extraordinarily di cult from both a legal and social point of view. On a much brigther note, in this issue Tony Cunneen gives voice to an oft-forgotten band of heroines – the wives and daughters of legal professionals who left our shores to ght during World War I. e tales in “A Noble Sisterhood” are inspiring, sad and surprising, to say the least, and shed light on what must have been fraught, dark days for Australia.
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
Michael Nguyen Photographer Jason McCormack Administration O cer Juliana Grego 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 © 2015 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
Sophie Farthing is Senior Policy O cer at the Public Interest Advocacy Centre in Sydney. She argues why it’s time to act on NSW’s overcrowded prisons, which are now well and truly over capacity. Hot topic p24
Laura Joseph is a solicitor with the NSW Department of Justice and winner of the John Hennessy Scholarship. She presents her international comparative research into legal capacity and litigation guardians. Legal updates p70
Tony Cunneen teaches at St Pius X College in Chatswood and has written extensively on the history of the legal profession. He writes about women in World War I. A noble sisterhood p38
Joanna McMillan is an author and Accredited Practising Dietitian with a PhD from the University of Sydney. She reveals the three top foods to consume to beat the winter blues. Her choices may surprise. Health matters p56
Cover illustration: Andy Raubinger
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 the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 AUGUST 2015
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Sophie Farthing from the Public Interest Advocacy
Tahlia Gordon walks us through the minefield of technological ethics issues. 38 WOMENATWAR Tony Cunneen uncovers a noble sisterhood which has barely received a mention in Australia’s history books. 52 EXTRACURRICULAR Allens’ Michael Rose shares his love of vintage cars. 54 TRUTHABOUTVITAMINS Dr Jenny Bromberger explains how increasing your vitamin intake can boost health.
Joanna McMillan’s top healthy foods to get through winter. 58 Paul Phillips has a four-point strategy to acknowledge and seek help for mental health. 60 CITYGUIDE Ute Junker’s guide to spending 24 hours in bustling Montreal. 64 YOUWISH Clawfoot tubs and an extensive wine list – Jane Southward WHENFRIENDS AREN’TENOUGH
Centre analyses the issue of overcrowding in NSW prisons. 26 COVERSTORY Kate Allman investigates the crystal methamphetamine epidemic and its e ects on the criminal justice system. 32 IN FOCUS From foster family to the o ce of the DPP, solicitor Amber Boatman shares her story.
indulges in Wellington’s Martinborough Hotel.
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45 CAREER101 48 ADAY INTHELIFE Jane Southward meets Queanbeyan
68 LAWSOCIETYADVOCACY 70 GUARDIANSHIP: CAPACITY & LITIGATION 74 RISK: ACTING IN FAMILY LAW MATTERS 75 ETHICS: COMMITTEE UPDATES 76 REGULATION: UNIFORM LAW BEGINS 78 INTERNATIONAL: SOVEREIGNTY CONTESTS 80 MEDICALPRIVACY: HEALTHRECORDS 82 MIGRATIONLAW: VISAS & OFFSHORE WORKERS 84 PROPERTY: ELECTRONIC CT S 86 FAMILYLAW: ‘SPECIAL SKILLS’ RULING 88 WILLS&ESTATES: GENEALOGY 90 FREEDOMOF INFORMATION: PUBLIC INTEREST 92 PROPERTY: STATE RESUMPTION OF LAND 94 SUCCESSION: FAMILY BUSINESS PLANNING 96 CASENOTES
News and events from the legal world
Local Court Magistrate Michael Antrum
10 PROFESSIONAL NOTICES 18 FROMTHEARCHIVES 19 CAREERMOVES Who moved where this month 20 OUTANDABOUT 21 PEARLSOFWISDOM Justice Stephen Gageler 22 GLOBAL FOCUS
Three steps to increase your e ciency at work 52 EXTRACURRICULAR 66 LIFESTYLE The latest in books and events 75 LIBRARYADDITIONS New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle
Australia’s citizenship and terrorism laws in international context
Stress less, weigh less
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LETTERS TO THE EDITOR
WRITETOUS: We would love to hear your views on the news! The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at The Law Society dining room . E: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Erin Eckho has won lunch for four.
Drop everything and go I really enjoy the LSJ and would like to share an idea on the importance of taking a sabbatical during the course of our professional lives. There comes a time in each chapter of our lives where the winds of change start to blow. It starts like a gentle breeze, barely audible, and grows to a whisper. If you ignore it, it only gains momentum until it’s a roaring tempest that threatens to dislodge your footing on reality. Denying this wind, even for a short period, leads to frustration and disillusionment. But if you give it rein, as scary as that may sound, it can
take you to a place where time is suspended and you arrive in the mythical lands of “Self Awarenessville” and “Perspectivia”. I believe that these journeys, suspended in place and time, also more commonly known as “sabbaticals”, are essential in the world we live in for the ability to breathe, to develop and to discern the things that really matter from the things, places and people that don’t. That’s also what separates a sabbatical from a mere vacation. There is no going back after a sabbatical. It’s not a time out, rather it marks the beginning of a new chapter.
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When people take this time (and few do) it is usually only once in their lives – after school or uni and before starting “a real job”. But it ba es me why the value of doing it at other points in our lives is not also universally recognised. I once saw a Ted Talk by a Dutch advertiser who argued that we should retire seven years later and instead disperse those seven years throughout our lives as sabbaticals. He argued that the sabbatical was essential for him and his sta to get perspective on their personal lives and to have the freedom
to develop professionally. It was his firm view that it made one more productive, more balanced and happier. I couldn’t agree with him more. Some businesses/institutions and firms have designated sabbatical programs. But if they don’t or won’t engage in the discussion, just leave. Seriously, you will find another job, you will come back motivated and focused and it’s likely you will be more employable than when you left. It’s a leap of faith but at the end of the day, you don’t get to do this life again and I doubt you will remember all those long days spent in
the o ce on your death bed. There are always a thousand excuses as to why you can’t do a sabbatical and I can imagine some extreme cases where saying “just go” is just not possible – crippling disabilities, illness and extreme poverty. But, on the balance of probabilities, if you’re reading this letter then it’s unlikely those circumstances apply to you (though one day might!). Your big excuse is more likely to be, ‘I’m scared to leave my job, I don’t have enough savings and I have children’. In 2011, my husband and I dropped our lives in New
Zealand, sold everything and flew to Europe. We bought a beat up old campervan and travelled for six months, and our lives have never been the same. The clarity, energy and direction we found is still sustaining us to this day – it has led to post-graduate study, changes in our careers, and lives that spread across three countries. My point? Life is not rehearsal and fortune favours the bold. Whatever you’re waiting for, drop everything and just go. Erin Eckho Speed and Stracey Lawyers
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JULY 2015 I LSJ 9
Thecourts failedme: RosieBatty
Lawyers and judges should do more to understand how confronting and
overwhelming it was to appear in court in matters involving domestic violence, said Australian of the Year Rosie Batty at a forum hosted by the Law Society of NSW on 2 June. “The isolation caused by violence is very debilitating,” Batty told the sold-out forum titled “Violence at home is everybody’s business: legal responses to family violence”, which was organised by the Judicial Commission of NSW, the NSW Bar Association and the Law Society of NSW. “The expectation placed on the victim is enormous. You have a duty to be firm with perpetrators. This is a gender issue caused by men who see women and their children as possessions. “There is too little accountability for the perpetrators of domestic violence. Two women a week in Australia are being killed through domestic violence. We put the onus of responsibility for change on the victim. We are expecting them to somehow leave, to go into crisis accommodation and refuges. You have to consider what way is the perpetrator using the court system to continue the abuse.” Batty said she felt the court system had failed her. Her son, Luke, was killed in February 2014 by his father, Greg, who was gunned down by police and died the next day. She has since become a campaigner for victims of domestic violence and said most of the correspondence she received from members of the public detailed failures within the family court system. “Greg was six foot two inches. He threatened to kill me,” she said. “I spent 12 years managing the violence. It’s only when it hits a crisis point that you would involve the police.” Other speakers at the forum were Dixie Link-Gordon from Rape and Domestic Violence Services Australia, the Honourable Justice Hilary Hannam of the Family Court, and solicitors Cheryl Orr and Robyn Druitt, who chaired the event. Justice Hannam detailed some cases of domestic violence that had come before her. She urged family members to step up and try early intervention. Ms Orr, who said she was a survivor of the Stolen Generation and a carer of seven children, told the forum: “Firstly, we need acceptance of the problem of domestic violence, and then the will to fix the problem. “As an Aboriginal woman, it is important for us to get involved, to not wait for the point of crisis. We need to get information out there to Aboriginal people to act early, to put the responsibility on family to step in. If you see a child in trouble, stand up, speak strong.” – JANE SOUTHWARD
“There is too little accountability for the perpetrators of domestic violence. Two women a week in Australia are being killed through domestic violence. We put the onus of responsibility for change on the victim ... “
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The Motor Accidents Authority (MAA) has issued a warning that members of the public have received unsolicited phone calls attempting to obtain personal information about motorists and accidents in which they have been involved. According to information provided to the LSJ , in some cases the caller has identified themselves as the “Claims Advice Service”, the “Claims Advisory Service” or the “Motor Accidents Authority”. The MAA’s Claims Advisory Service does not make or authorise unsolicited calls to customers to obtain personal information about motor vehicle accidents. “There is a warning on the MAA’s website in relation to this activity. In some cases, the individuals claim to have received information from the MAA, which is again patently false,” said a spokesperson for the MAA. “We are aware of a website that has been cold calling members of the public. There are other websites where advice is provided that people can claim a minimum of $10,000 for any kind of injury and referring them select legal firms for advice. “The MAA has been contacted by a number of law firms who have advised that they have been approached to sign up for a fee to be supplied a certain number of CTP clients per month.” For more information visit: NSWYLCOURTROOMPROGRAM EARNSACCOLADES The NSW Young Lawyers program “Confidence in the Courtroom – Family Law”, part of the Law Society’s CPD o ering, has been recognised internationally, winning an ACLEA (International Association for Continuing Legal Education) “best” award. The annual ACLEA awards recognise the contributions of its professional member organisations in the categories of marketing, programs, publications, public interest, and technology. The Law Society of NSW is a member organisation. The Award of Outstanding Achievement is given to the first and second runners-up in these categories. The Young Lawyers’ award, which is in the programs category, will be presented at the Chicago ACLEA meeting on 1-4 August. In making the announcement, the ACLEA noted the high number of exceptional entries received this year and the quality and innovation of the entries. maa.nsw.gov.au
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JULY 2015 I LSJ 11
Directors’ duties andshareholderwealth
This year’s Supreme Court Corporate Law Conference promises an impressive line-up of speakers who will discuss a fundamentally important topic, “Must directors maximise share value?”
O n 20 May, David Gonski presented a paper at an ASX/UTS seminar in which he stated: “Until quite recently, the long-term holders have remained relatively silent. Therefore ... the noise from short-term holders can give a biased view of what is required from the company by its shareholders. In my view, directors and officers have an implied duty to the entity which they govern to govern in the longer term and on the basis that the entity continues and seeks to flourish.” Similarly, on 12 May, Michael Chaney – when accepting his appointment as the chairman of the board of Wesfarmers – said he would retain Wesfarmers’ culture and its continued focus on long-term shareholder returns, noting that “[t]here are all sorts of shareholders – hedge funds, mums and dads and long-term institutions – and we can’t please everyone all the time”. The question remains, however, what the law requires and permits, and it is this question that will be examined in detail by a line-up of distinguished international and local speakers at the 2015 Supreme Court Corporate Law Conference in Sydney on 8 September. The question breaks down into two parts: should the directors take a long-term view of shareholders’ interests, as Gonski and Chaney insist, and should the directors take into account non-shareholder interests? According to conference co-ordinator Dr Robert Austin, the theme of this year’s conference is central to corporate governance, as well as being highly controversial and testing for company directors. The long-term versus short-term issue has become increasingly controversial for boards as the share registers of listed companies become increasingly volatile and the short-term priorities of hedge funds and
activists come to dominate the financial press. The second part of the question is whether directors have to take into account the interests of stakeholders other than shareholders, including in particular the community’s interest in preserving the environment. According to Austin, this topic has also become highly controversial in recent times as some major institutional investors, particularly in Scandinavia, and other investors, including some universities in the US, UK and Australia, have announced changed investment policies under which they will divest their investments in fossil fuels. “That puts enormous pressure on fossil fuel companies and in particular, coal companies, which might eventually find that their share price declines even when they are producing superior returns, because an increasing body of investors are prepared to forsake high returns in order to influence the commercial community to move into cleaner fuel alternatives,” explained Austin. “It also puts pressure on listed institutional investors, such as the big insurers, and on the large superannuation funds, to review their policies.” The question of where exactly directors’ duties lie is a complex one – the answer to which, in Australia, has traditionally been “the body of shareholders as a whole”. “According to corporate law orthodoxy, the task of the board is to produce, in a longer- term scenario, a good investment return for the shareholders,” said Austin. “The common wisdom is that looking after employees, customers, suppliers, creditors and the environment will operate for the benefit of shareholders, because listed company profits are very much tied up with good industrial and business relationships, and favourable
Justice David Richards, Chancery Division of the UK High Court.
Dr Robert Austin, Conference co-ordinator.
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media and community perceptions. So you look after the other stakeholders in order to look after the shareholders. “However, sometimes there is a divergence. For example, totally divesting investments in coal producers may damage the short-term profitability of the company which disposes of the investment, in circumstances where the directors may even believe coal has a reasonably healthy future up to the investment horizon.” While the law in Australia is not clear, in the United Kingdom the Parliament has intervened. Section 172 of the Companies Act 2006 (UK) says that while directors must act in the way that they consider – in good faith – would be “most likely to promote the success of the company for the benefit of its members as a whole”, they must take a long-term view and have regard to a series of stakeholder interests, including “the impact of the company’s operations on the community and the environment”. It is these contrasts and comparisons in the law that will make up the lion’s share of discussion at the conference. The conference’s keynote overseas speakers are Justice David Richards from the Chancery Division of the UK High Court, and Professor Robert Thompson from Georgetown University. Professor Thompson, a senior corporate law academic, will set the scene by explaining the leading judgments of the Delaware Supreme Court and the lively debate around the topic in US corporate governance circles. Justice Richards will explain the impact that the Companies Act 2006 has had on basic duties of directors. Justice Richards was called to the Bar in 1974, took silk in 1992 and became a judge of the High Court of Justice in 2003. He is chairman of the Competition Appeal Tribunal. Neil Young QC will consider the extent to which Australian courts are likely to follow the lead provided by Delaware and the UK. Australia does not have any general statutory requirement for directors to consider non-shareholder interests, but there are specific requirements for life companies to prefer the interests of policy holders, and for managed investment schemes and superannuation funds to prefer the interests of beneficiaries. Dr Austin will assess the implications of such provisions for company boards. A particular application of the general conference theme is whether directors should minimise corporate tax – an issue that is highly topical in Australia, as recent Senate committee hearings have shown, and widely debated in other countries where corporate governance matters. The conference speakers will take part in a panel discussion to debate this issue. The conference will be held at Banco Court in the Supreme Court of NSW. To find out more about the speakers and session times, and to book your ticket, visit
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NEXTCROWN SOLICITOR APPOINTED
By Order of the Supreme Court on 24 April 2015, Hugh Charles Thomas was appointed receiver for the law practice known as Tien Ngoc Do & Co, formerly conducted by Ngoc Tien Do.
Lea Armstrong has been appointed as the state’s next Crown Solicitor. Armstrong is a solicitor with 23 years’ experience in government and commercial law, including 18 years at the NSW Crown Solicitor’s O ce. She has extensive experience in leading and directing the provisions of legal services to NSW government agencies. She currently holds the position of General Counsel at NSW Treasury. During her previous period at the Crown Solicitor’s O ce Armstrong worked in a range of roles, including as General Counsel with a focus on major commercial transactions and reform projects for a range of clients including Treasury. She also served as an Assistant Crown Solicitor in commercial law and administrative law. Armstrong will begin serving as Crown Solicitor on 13 July. She is the first woman in NSW to hold that position. Armstrong takes the place of Ian Knight, who held the position of Crown Solicitor for 20 years before retiring.
3,000members are currently using the LSJ App. Join them! lawsociety.com.au/lsjapp
14 LSJ I JULY 2015
UNSWshines at ICCmoot A team of university students from UNSW has returned triumphant from The Hague after placing fourth in the International Criminal Court Moot competition.
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(From left) Caitlin Eaton, Isobel O’Brien, Natalie Hodgson, Hannah Lippmann, Mark Knespal and Professor Sarah Williams.
The ICC Moot competition is held annually in the criminal courtrooms of The Hague in The Netherlands and is attended by 60 of the strongest university mooting teams from around the world. The UNSW team spent 10 months preparing for the 2015 competition, having qualified as the strongest competitors in the Australian round in October last year. Preparations included the submission of three 10,000-word “memorials” from the perspectives of di erent parties. This year’s fact scenario involved an emerging area of international law surrounding cyber attacks, and the contentious issue of whether cyber crimes can constitute war crimes under the Rome Statute. The scenario bore similarities to the self-determination issues in Kosovo. “Ironically, the Kosovo team argued against the right to self-determination which is against the authority of the International Court of Justice’s Advisory Opinion and contrary to their 2008 declaration of independence from Russia,” said Natalie Hodge, who acted as victims’ counsel for the UNSW team. The team underwent vigorous advocacy training with their coaches, Associate Professor Sarah Williams and Dr Rosemary Grey. Former NSW Director of Public Prosecutions Nicholas Cowdery also acted as a practice judge during the young mooters’ training at UNSW. Caitlin Eaton, who was the Government Counsel for the UNSW team, said the trip was a fantastic opportunity to enjoy various extra-curricular activities around international criminal law. “Aside from the actual mooting, we enjoyed the opportunity to meet many other like-minded students from around the world, attend master classes run by Doughty Street Chambers, have afternoon tea with the Ambassador at the Australian Embassy, and make visits to the ICTY and Special Tribunal for Lebanon where we watched ongoing trials,” said Eaton.
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11NSWlawyers receiveQueen’s Birthdayhonours Eleven of the state’s legal professionals were recognised in this year’s Queen’s Birthday Honours list in June. CLIVENORMANAUSTINAM , of Kirribilli, was recognised for significant service to people with disabilities, particularly rehabilitation program delivery, to the not-for-profit sector and to the community. SAMUELSTUARTCLARKAM , of Killara, was recognised for significant service to the law, through senior roles with professional legal bodies, to strategic reform, and to the rural fire service. RONALDARTHURFINLAYAM , of North Sydney, was recognised for significant service to the law, particularly in the area of dispute resolution, through public infrastructure advisory roles, and to baseball. JOHNELIOTTKILPATRICKOAMAM , of Speers Point, was recognised for significant service to the Greater Newcastle community, through leadership of social welfare organisations, and to local government. GRAHAMLEONARDBERRYOAM , of Pagewood, was recognised for service to the community through volunteer roles with service organisations. GLENNBRUCEDUDLEYOAM , of Robertson, was recognised for service to the agricultural society movement in NSW. GRAEMEROGERGIBSONOAM , of Narrawallee, was recognised for service to the community of the Hunter Valley. DOUGLASWILLIAMNEWALLOAM , of Smithfield, was recognised for service to veterans and their families, and to the community of Smithfield. DARRELLJOHNPANNOWITZOAM , of Davistown, was recognised for service to the community of Umina. STEPHENHUGHSCARLETTOAM was recognised for service to the judiciary, to the law and to professional organisations. RICHARDJOHNSTANILANDOAM , of Mona Vale, was recognised for service to aged care and to the community of Ku-ring-gai.
CAKE IN CANBERRA FOR
MAGNACARTA Australia’s leaders gathered in Canberra last month to wish the Magna Carta a happy 800th birthday. The official reception for the Magna Carta’s 800th Anniversary was held at the Australian Parliament House in Canberrra, with Prime Minister Tony Abbott delivering the keynote address, flanked by the 1297 Inspeximus Magna Carta.
The Speaker of the House of Representatives, Bronwyn Bishop, and the President of the Senate, Stephen Parry, lead the Magna Carta celebrations (top); with Prime Minister Tony Abbott and the Leader of the Opposition, Bill Shorten (middle); and children from Boggabri Primary School, 700kms from Canberra, joined the celebrations.
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Tickets for the Justice Awards now on sale
Awards to be presented on the evening: • Justice Medal • Aboriginal Justice Award • Pro Bono Partnership Award • Law and Justice Volunteer Award
• Law Society President’s Award • Community Legal Centres NSW Award • LIAC Centre of Excellence Award
Presented by the Law and Justice Foundation of New SouthWales Thursday 15 October 2015 6pm-10.30pm at the Strangers’Dining Room, NSW Parliament House, Sydney
This year’s Law and Justice Address will be delivered by The Hon. Catherine Branson QC.
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JULY 2015 I LSJ 17
BRIEFS FROM THE ARCHIVES
review THE YEAR IN 1991
Take a trip down memory lane through the pages of the Law Society Journal.
BRAINSTORMING2001 The Legal Education Task Force considers what members believe legal practice a decade later will look like. Members predict “a growing gulf between legal practice in large city practices and the sort of work done by smaller firms and by lawyers in the suburbs and country areas”, a stronger emphasis on alternative dispute resolution, a change in fee systems, and more specialisation. ADOPTIONLAWSHAKE UP People who have been adopted get new rights under The Adoption Information Act 1990 from 1991. Under the legislation, adopted people over 18 are entitled to obtain their original birth certificate and birth parents are entitled to obtain the post-adoption birth certificate as well as access to adoption and hospital files. Adopted persons and birth parents (but not adoptive parents) who do not wish to be contacted can lodge a contact veto. Anyone wishing to contact a person from whom they have been separated by adoption can register their desire, but unless the other person does the same there can be no “match”. The Journal reports that the new rules present a dilemma for “unacknowledged birth fathers, some of whom may be listed on a birth certificate but unaware of the birth”.
THELAWANDTHEUNDER18 S The Journal reports on the use of closed-circuit TV for children giving evidence. Legislation has just been enacted in NSW, Queensland, Western Australia and the ACT, but the new technology is used only in the ACT in 1991. “Closed- circuit television is a promising measure to alleviate two of the main fears that children have about testifying: seeing the defendant and being present in the courtroom with a number of people they do not know,” the Journal reports. In another legal development for children, new rules of evidence for the under 12s come into play in NSW. The Oaths (Children) Amendment Act 1990 begins on 6 January. The Family Court considers the issue of children’s consent to medical procedures such as contraception, abortion and sterilisation. In a Full Court decision, the Family Court held by a two-to-one majority that parents of an intellectually disabled child (Marion) may lawfully authorise a sterilisation procedure without first obtaining the court’s approval. SOLICITORNUMBERS “With an increasing number of practitioners per head of population in NSW, can solicitors hope to increae or even maintain their income in the medium to long term?” the Journal asks. The total number of solicitors in NSW in 1991 is 11,428 – up from 7,577 seven years earlier. The Journal reports that the growth in practice has been largely in the city and suburbs.
oversees the installation of a $16 million computer system at Blake Dawson Waldron, “implementing what could only be dreamt of recently – a
terminal at every desk from the managing partner’s o ce down to the mailroom”. Broderick tells the Journal the firm has calculated it could pay back the computer system in two and a half years.
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BRIEFS CAREER MOVES
MEMBERS ON THE
JODIEMASSON Joined as a partner William James Law
BENMALONE Joined as a lawyer William James Law
LAURENBATHUR NEEMASON Joined as a senior associate William James Law
OLEMITREVSKI NEEGEORGIEVA Now a senior associate William James Law
LEISHADEABOITIZ Now a partner William James Law
TRINAFRANCIS Now a consulting principal Keypoint Law
KONNAKOUSIS Joined as a partner Clyde & Co Australia, Sydney
GARETHHORNE Now a partner Clyde & Co Australia, Sydney
JOFOLAN Now a partner, Banking & Finance Allens, Sydney
TIMSTEWART Now a partner, Banking & Finance Allens, Sydney
DAVIDCOWLING Now a partner, Restructuring & Insolvency King & Wood Mallesons, Sydney
BROOKEMASSENDER Now Head of Pro Bono & Citizenship, Australia & Asia Herbert Smith Freehills
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BRIEFS OUT AND ABOUT
FAMILY VIOLENCE SEMINAR
Australian of the Year Rosie Batty, Dixie Link-Gordon, The Honourable Justice Hilary Hannam and Cheryl Orr spoke on the topic “Violence at home is everybody’s business: Legal responses to family violence” at the Law Society of NSW last month.
PHOTOGRAPHY: JASON MCCORMACK
VIEWTHE PHOTOGALLERY ON THE APP
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JUSTICE STEPHEN GAGELER of the High Court of Australia reflects on why lawyers shouldn’t dismiss the value of simply doing a good job for their clients.
of the national electricity market. The case also required me to gain a rudimentary understanding of the processes by which alternating-current electricity is generated and transmitted throughout an electricity grid. That is very much more complicated than you might think. I had a very good teacher. I spent six to eight hours a day with him for about a week. I would ask questions, he would explain the answers, I would take notes and then I would reflect my understanding back to him in my own words. Towards the end of the process, he asked me questions about the case, my strategy, and where the information he was providing fitted in. He then said something that was a real revelation about the nature of the exercise in which I was engaged. I still regard it as the highest compliment of my career. He said, “You know, you think like an engineer.” How is it that engineers think? They start o with a client. The client has an objective. The engineer identifies the path to that objective and each of the problems along the way. The engineer then designs solutions to those problems within technical limits and within legal and ethical constraints. That is exactly what all good lawyers do in practice. You may go on to become great advocates for the poor and the oppressed in social justice litigation. If that is your ambition, then I do not want to dissuade you. But you should recognise that you will be contributing hugely to social justice simply by being a competent and ethical lawyer solving your client’s problems. My advice to you, the most inspirational and constructive thing I can say, is “go forth and build bridges”.
society stops. And you can’t have law without lawyers. The vast body of lawyers are just damn good professionals and they keep the sewers running.” The “somebody” to whom Justice Mahoney referred was Professor William Twining, who a few years before published an article in the Law Quarterly Review entitled ‘Pericles and the Plumber’. “The lawyer”, said Professor Twining, is “essentially someone who is master of certain specialised knowledge, ‘the law’, and certain specialised skills ... What he needs is a no-nonsense specialised training to make him a competent technician. A ‘liberal’ education in law for such a functionary is at best wasteful; at worst it can be dangerous. Imagine the e ect, it might be argued, on our drains and central heating systems if our plumbers had been made to study the history and philosophy of plumbing, the aesthetics of drains, housing policy, Roman baths, comparative plumbing, and a special subject in the water supply of the Houses of Parliament.” What Justice Mahoney took from what Professor Twining was saying was not that there is anything wrong with a liberal education for lawyers or for plumbers. His point was that lawyers, like plumbers, should not get too trumped up about what they do. Both provide an essential – but essentially technical – service. When I was well and truly into the infrastructure phase of my legal practice, I was acting for Transgrid, the state-owned owner of the electricity transmission system in New South Wales. The case required me to understand the economics
first could have been described as a young lawyer in 1983. Between then and 2012, when I became a Justice of the High Court, I did a number of things. The main thing was to work in private practice as
a barrister for nearly 20 years. Most of the time I did ordinary cases about ordinary issues for a whole range of individuals and corporations. Towards the end, I seemed mainly to be doing cases about infrastructure. If you had anything to do with an electricity grid, or an airport, or a port, or a railway line, or a pipeline of any description, including a sewer pipe, and you encountered a serious legal problem, I was your man. Some of the time, I was Don Quixote, on my public interest charger, jousting at what appeared at the time to be giants. Most of the time, I was Bob the Builder. What I want to share with you is not from the small Don Quixote part of my professional experience. It is some insights from being Bob the Builder. Not very long after I became a barrister in Sydney, there was a retirement of one of the most senior judges in New South Wales, Justice Dennis Mahoney. He had been President of the Court of Appeal. He was, at the time of his retirement at 72, the longest serving judge in New South Wales. Asked by a reporter how he wanted to be remembered, he said he wanted to be remembered as a professional. When asked to elaborate he said, “Somebody once said that there were two things that are essential to any community. One is sewerage. The other is lawyers. If you don’t have sewerage you’re dead, but if you don’t have law
This is an edited version of Justice Gageler’s address delivered at the NSW Young Lawyers mid-year assembly in May.
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France, the United States and other countries.” It is true that a number of countries allow for the deprivation of citizenship on national security grounds in certain circumstances, but the scope of ministerial discretion in these countries varies significantly. Canada In Canada, recent changes to the law allow the ministerial revocation of the citizenship of dual citizens in three circumstances. A person may have their citizenship revoked where they have been convicted by a Canadian court of any one of a range of prescribed national security offences. The minister may also revoke a person’s citizenship where they have been convicted by a foreign court of an offence committed overseas which, if it had been committed in Canada, would qualify as a “terrorism offence” under the Canadian Criminal Code. In both instances, the minister has discretion over whether to revoke the citizenship of a person who has engaged in terrorism. However, the minister has no discretion over the threshold question of whether the citizen concerned has engaged in terrorism. This is a question that must be determined by a court. This is significantly narrower than the Bill that has been introduced to the Australian Parliament. The third circumstance in which the minister may revoke the citizenship of a Canadian citizen is where they have reasonable grounds to believe that the person has “... served in the armed forces of a country, or as a member of an organised armed group, while that country or group was engaged in armed conflict with Canada”.
SANGEETHA PILLAI examines international approaches to citizenship and terrorism and whether the Prime Minister’s claims that he is simply following suit really measure up. Proposals to strip citizenship takeAustralia a step further thanmost COMPARATIVE
O n 24 June, Immigration Minister Peter Dutton introduced the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 to Parliament. It follows months of public debate and revelations of division among senior Cabinet ministers and the government backbench over such questions as whether the legislation should apply only to dual citizens or extend to sole Australian citizens, and whether it complies with the rule of law. The new Bill clarifies that the changes will apply only to dual citizens, and that it will not be necessary for a person to have been convicted by a court of a terrorism offence in order to be vulnerable to citizenship revocation. There are three grounds upon which a dual citizen will have their citizenship revoked. These grounds are described as “self-executing” and no decision by a minister or court is required. Prime
Minister Tony Abbott stated: “The role of the Minister is not adjudication, it’s notification ... It will be the operation of the law that actually strips people of their citizenship rather than the ministerial decision as such.” However, a person may be exempted if the minister believes this is in the public interest. The government has also indicated it is examining proposals as to whether the new laws could apply retrospectively. The revoking of citizenship or a failure to exempt someone from this will be subject to judicial review. However, the form of such review remains unclear. The bill is silent on this aspect of the process. Announcing the plans, Prime Minister Tony Abbott said: “These new powers are a necessary and appropriate response to the terrorist threat. They modernise our laws and bring them closer to those of the UK, Canada,
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There is greater scope for ministerial discretion in this circumstance. Under existing Australian law, loss of citizenship is automatic where a citizen with dual citizenship serves in the armed forces of a country at war with Australia. In the new Bill this has been extended to cover citizens fighting for non-state actors such as IS and Boko Haram. Australia has declared 20 groups to be terrorist organisations. France In France, Article 25 of the Civil Code allows for a naturalised dual citizen to lose their citizenship in three circumstances: • Where they are sentenced for an offence that constitutes an injury to the nation or an act of terrorism; • Where they are sentenced for evading duties under the Code of National Service; or • Where they commit acts detrimental to the interests of France for the benefit of a foreign state. As in Canada, for a person to lose their citizenship on the grounds of having committed a terrorism or national security offence, conviction by a court is required. Time restrictions also apply. The person must have committed the relevant offence prior to or within 10 years of acquiring French citizenship. Any decision to revoke citizenship can only be made up to 15 years after the offence occurred. United States The regime governing citizenship loss in the US is complex. It is significantly narrower than the model that is likely to be introduced in Australia. Citizens born in the US are regarded as constitutionally protected against being deprived of their citizenship
The broad deprivation powers in the UK have attracted substantial criticism. Their operation raises significant concerns. For instance, while a person may lodge an appeal against a citizenship deprivation order, this does not prevent them from being deported from the UK. This can make it very difficult to initiate appeal proceedings. revocation provisions now apply only to dual citizens, they will be narrower in this sense than the UK laws. Nonetheless, it is clear that the UK laws have provided much of the inspiration for the Abbott government’s decision to move ahead with its Bill. It may be that things will play out differently in Australia than the UK. Because Australia, unlike the UK, has a written Commonwealth constitution, the passage of a law along these lines may also raise interesting constitutional questions, such as whether citizens have a constitutionally protected right to enter Australia, and the scope of the executive power to deprive a person of citizenship. The concerns for Australia Because the proposed Australian
by the state, but may renounce it voluntarily. By contrast, Australia’s Constitution makes no mention of a national citizenship. The constitutional protection against citizenship deprivation does not extend to naturalised US citizens. However, the US law governing citizenship deprivation treats US-born and naturalised citizens substantially alike. The US Code prescribes certain acts that can lead to a loss of US citizenship, but only if the citizen in question performs them with the intention of relinquishing US citizenship. For some prescribed acts – such as engaging in treason, bearing arms against the US, or conspiring to overthrow the government – conviction by a court is required before any loss of citizenship can eventuate. United Kingdom In contrast to Canada, France and the US, citizenship revocation laws in the UK allow for extremely broad ministerial discretion. The Secretary of State may deprive a person of citizenship where they are satisfied that deprivation would be “conducive to the public good”. UK law also allows for the citizenship of sole UK citizens to be revoked, provided the Secretary of State is satisfied that the citizen concerned has: “… conducted themselves in a manner which is seriously prejudicial to the vital interests of the United Kingdom.” Before revoking the citizenship of a sole UK citizen, the Secretary of State must have reasonable grounds for believing that the person is able to obtain foreign citizenship.
This article first appeared in (theconversation. com) and has since been updated, with permission, for publication in the LSJ.
Sangeetha Pillai is a research fellow and director of the Federalism Project at the Gilbert + Tobin centre for Public Law at the University of New South Wales.
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