LSJ - July 2017

ISSUE 35 JULY 2017

ACLOSE-UP LOOKAT LAWYERS SURPRISING TRENDS IN THE 2016 NATIONAL PROFILE OF THE PROFESSION

AFAMILYDRAMA THE UNUSUAL MATTERS KEEPING THE FAMILY COURT BUSY

NOT YOURAVERAGE LAWFIRM A GLIMPSE INSIDE THE MODERN OFFICE COURAGE ANDCOMPASSION A DAY IN THE LIFE OF JAMES HORSBURGH MAKINGTHEMOVE IN-HOUSE TIPS AND ADVICE TO GET YOU THERE ICAC TESTIMONYANDCRIMINAL TRIALS WHY WITNESSES MUST BE WARY

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CONTENTS

26 24

38

FEATURES

24 INFOCUS

34 FAMILYLAW From surrogacy to DNA

50 LIFEOUTSIDETHELAW Clyde & Co partner Alena Titterton shares how her passion for musical theatre helps her find balance 55 PSYCHE Should resilience be a four- letter word? Psychologist Paul Phillips writes that the idea of coping at all costs has gone too far 60 YOUWISH Just months after Cyclone Debbie, qualia, the Whitsunday’s prime retreat, is up and running again

Be inspired by the passion of solicitor Terri Janke who tells how she is working to protect the rights of Inidgenous artists 26 HOTTOPIC In an exclusive report, the Chief Judge of the District Court, Justice Derek Price AM, tells Jane Southward it’s time for an overhaul in the way solicitors and prosecutors work 28 COVERSTORY A new national report shines light on new trends in the legal profession. Lynn Elsey and Kate Allman report

parentage testing and social media uses and abuses, family law is evolving 38 TRENDSATWORK New o•ce layouts and workplace approaches are changing how law is practised in firms big and small 48 DAY INTHELIFE James Horsburgh, a partner at one of NSW’s largest regional firms, tells how an accident at university that left him a quadriplegic hasn’t held him back

ISSUE 35 I JULY 2017 I LSJ 3

54

56

REGULARS

LEGALUPDATES

6 FROMTHEEDITOR 8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 23 EXPERTWITLESS 23 THE LSJ QUIZ 42 CAREERCOACH

52 HEALTH

68 ADVOCACY: THE LATEST IN LAW REFORM

Gluten-free foods – magic of myth?

70 CRIMINAL: ICAC TESTIMONY & COMPELLED EVIDENCE

54 FITNESS

73 PERSONAL PROPERTY: CHANGES TO PPSA

How to make a barbell the most effective tool in the gym

74 ELDER LAW: ALRC ELDER ABUSE REPORT

76 TAXATION: OPTIONS AND HIDDEN TAX STINGS

56 CITYGUIDE

Denise Cullen reports on the best of Brisbane

77 PROPERTY: CAPITAL GAINS WITHHOLDING CHANGES

62 LIFESTYLE

78 EMPLOYMENT: THIRD PARTY ACCESSORIAL LIABILITY

Book reviews and our movie giveaway

Fiona Craig explains the skills you need to work in-house

80 RISK: MAKING ENDURING POWERS OF ATTORNEY

82 INSURANCE: BROTHELS, BIKIES ANDDISCLOSURE

64 NONBILLABLES Boxing champ Shelley Watt

44 CAREER101

84 TECHNOLOGY: VALIDITY OF ELECTRONIC SIGNATURES

Anna Kerr, founder of the Feminist Legal Clinic

86 CONTRACT: CONVENTIONONELECTRONICCONTRACTS

66 LIBRARYADDITIONS 106 AVIDFORSCANDAL

46 DOING BUSINESS

Three ways to improve your CV, plus Josephine Gardiner’s office style

89 WILLS: RECENT CAPACITY CHALLENGES TO VALIDITY

Peter Clayton’s hilarious Golden Gavel address

92 CASE NOTES: HCA, FCA, CRIMINAL, FAMILY & WILLS

4 LSJ I ISSUE 35 I JULY 2017

UNLEASH YOUR INNER ARTIST lawsociety.com.au/president Finalists will be showcased at events in September to raise money for the President’s 2017 Charity Bara Barang. The venues: Just Art exhibition at Gauge Gallery and Just Music concert at City Recital Hall entries close 31 July

ORGANISEDBY

PROUDLYSUPPORTING

A WORD FROM THE EDITOR

I am utterly delighted to see the smiling face of my dear friend James Horsburgh on page 48 of this edition. For those of you who know James – or Teddy, as he is known – his story will merely reinforce what you already know of him. For those of you who don’t know him, I have no doubt his story will enlighten and inspire. Following a terrible accident towards the end of his law degree at the University of New England in Armidale, Teddy was left a quadriplegic. is fact did nothing, however, to stifle his

ISSN 2203-8906

Managing Editor Claire Chaffey Associate Editor

Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen

dreams of becoming a lawyer. Now a partner in Bathurst, Teddy is nothing short of an inspiration, proving that even in the most challenging of circumstances, success is possible. Teddy resolutely loves the business of helping people, and has become a husband, father and highly-respected practitioner, all while remaining a genuinely great bloke. e other exciting story in this edition is our cover story on page 28, ‘ e State of the Profession’, which unearths myriad fascinating trends within the legal profession, one of which is monumental – for the first time in history there are more female lawyers than male lawyers. Not bad considering that less than 100 years ago, until 1924, there were exactly zero practising female solicitors in Australia. What will the next one hundred years hold?

Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 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 specific written permission of the Law Society of New South Wales. Opinions are not the official 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 Chaffey

Contributors

Lynn Elsey is the LSJ’ s Senior Writer. In this issue she co-writes our cover story and interviews Terri Janke, an inspiring solicitor who is using her expertise in copyright and intellectual property law to futher the case of Indigenous social justice In focus p24

Paul Phillips is an occupational therapist, psychologist and academic who leads mindfulness classes for Law Society members. He ponders the question of whether the idea of resilience has been pushed too far Psyche p56

Richard Harvey is a sole practitioner,

Justice Derek Price is the Chief Judge of the District Court of NSW. He tells Jane Southward in an exclusive report why it’s time to change the culture of the legal profession in how solicitors and prosecutors run criminal trials Hot topic p26

Chair of the Property Law Committee & Specialist Accreditation Board, and Treasurer of the Law Society of NSW. He outlines recent foreign resident capital gains withholding changes. Property law p77

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ISSUE35 JULY2017

ISSUE35 JULY2017

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.

ACLOSE-UP LOOKATLAWYERS SURPRISINGTRENDS INTHE2016 NATIONALPROFILEOFTHEPROFESSION

AFAMILYDRAMA THEUNUSUALMATTERSKEEPING THEFAMILYCOURTBUSY

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ISSUE 35 I JULY 2017 I LSJ 7

President’smessage

I

t is timely during NAIDOC week this month to reflect on our progress towards closing the gap in access to justice for Aboriginal and Torres Strait Islander peoples. Indigenous incarceration rates have worsened since the Report of the Royal Commission into Aboriginal Deaths in Custody was released 25 years ago, and many of the key recommendations of that report have

been ignored or are yet to be implemented. As a result, the number of Indigenous people held in remand pending trial has grown. Particularly concerning is the marked increase in detention of Aboriginal and Torres Strait Islander women, who now comprise about 34 per cent of the female prison population, compared to less than 3 per cent of the general community – and the rates for children have similarly risen alarmingly. Our criminal justice system is failing to address the causes of offending, problems that can only be solved by attending to the social and economic disadvantage Indigenous Australians face. A major contributing factor to social disadvantage and contact with the justice sector is the over-representation of Indigenous children in out-of-home care. The Law Society of NSW calls for a national strategy to eliminate this factor. To reduce offending and recidivism we need justice measures that divert people from the criminal justice system, including greater use of non-custodial sentencing options, particularly in regional and remote areas, together with greater investment in health and education and support for family-based and Indigenous-specific, community-driven programs. Motor vehicle-related offences are among the drivers of disproportionate Indigenous detention, which is why we, along with the Aboriginal Legal Service (NSW/ ACT) and the NSW Council of Social Services, have called for the waiver of fees for identity documents for Indigenous people and reforms to driver licensing. Elder abuse is also an issue of increasing concern, and I am pleased to announce the formation of a new multidisciplinary working group of solicitors to investigate strategies to tackle it following the Australian Law ReformCommission’s (ALRC) recommendations for a national plan to combat and prevent the abuse and mistreatment of elder Australians. Our Committees are also working on a submission on the Draft Voluntary Assisted Dying Bill 2017, which is due in July. Our Human Rights and Public Law Committees are making contributions to the Law Council of Australia for a Regional Processing Policy Statement, which is expected to be submitted to the Federal Government in coming months. The Law Society is also planning a symposium with the aim of generating durable alternatives to offshore processing and practical solutions to deal with the flow of asylum seekers into the Asia Pacific region. Work also continues with the NSW Government on the implementation of the new CTP motor accidents scheme, expected to commence in December. My thanks go to our specialist CTP working group for their tireless efforts. Entries for Just Art and Just Music are open until 31 July, so motivate your muse and pull out your paintbrushes! Express your creative side and support a vital Indigenous community organisation, Bara Barang. And please do take advantage of early bird registration for the International Bar Association Conference in Sydney on 8-13 October, which offers exciting content with world- class speakers and great networking opportunities for solicitors.

PaulineWright

8 LSJ I ISSUE 35 I JULY 2017

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ISSUE 35 I JULY 2017 I LSJ 9

Mailbag

LETTERS TO THE EDITOR

Inbox

ISSUE34 JUNE2017 LSJ06_Cover_spine_June.indd 1

Euthanasia is a complex topic

one’s self. Such feelings as these are not exclusive to the terminally ill. As Dr Harvey Chochinov explains in his book Dignity Therapy, with treatment, terminally ill people can regain their sense of respect, meaning, hope and self. These feelings are not dependent on good health. While the author of the LSJ article refers to ending one’s life in “a more dignified fashion”, his meaning is unclear. If he means a quick, painless and medicalised death as I discuss in my paper “Such is life, Euthanasia and capital punishment in Australia: consistency or contradiction?” recently published in Solidarity, euthanasia seems not to ensure a quick and painless death any more than any other death by lethal injection does so. Euthanasia is a more complex topic than this article suggests. Professor Michael Quinlan Dean, School of Law University of Notre Dame Australia Avid for scandal Your piece “Study confirms lawyer jokes not funny” (May LSJ ) reminded me of the quote, “The problem with lawyer jokes is that lawyers don’t think they’re funny, and nobody else thinks they’re jokes.” Edward Loong, Milsons Point

states that where euthanasia has been introduced “limits and safeguards have been secured and flow-on problems avoided”. When the article refers to euthanasia in the Northern Territory it simply states that legislation “enabled three people to be assisted to die” but that it was over-ridden by the Commonwealth. The paper fails to note Kissane’s research, which concluded that “the gatekeeper roles designed by [the NT Act ] failed to protect depressed, isolated and demoralised patients” and that of the seven people who sought to be euthanised under the NT Act, three were socially isolated and four had displayed symptoms of depression. The article also states that, where passed, euthanasia legislation “all assist those who are suŸering, who have capacity and who wish to end their lives in particular circumstances and by particular means, in a more dignified fashion than would be the case if they were left to die unaided”. The article fails to mention that Dutch research has found that pain is given as the reason for euthanasia in only 5 per cent of cases, while a “loss of dignity” was the reason in 57 per cent of cases. A loss of dignity here includes feeling that other people do not respect you, losing meaning and hope, and losing a sense of

ISSUE34 JUNE2017

The June LSJ featured an article about euthanasia (26-27). It asked, “Will we legalise euthanasia?” and was said to explore “why dying with dignity is still not legal in Australia”. Precision in the use of language is critical, but perhaps never more so than when dealing with life and death questions. I have witnessed both of my parents die in their 70s after long illnesses and one of my brothers die in his 30s after a heart attack. They were not euthanised. Each died with dignity. To use the expression “dying with dignity” as a synonym for “euthanasia” without explaining what one means by “dignity” is to create confusion rather than clarity. Briefs HOTTOPIC

THEBURDENOF UNCONSCIOUSBIAS ARELAWYERSANDTHELEGALPROFESSION PROGRAMMEDTOEXERCISEPREJUDICE?

GOLDENGAVEL2017 ALLTHELAUGHSFROMTHEEUROVISION OFTHELEGALPROFESSION

OPPORTUNITYKNOCKSFORINNOVATORS GLOBALDEMANDFORAUSSIESTARTUPS PLEASELETUSDIEWITHDIGNITY TIMEFORCHANGEONEUTHANASIA CANYOUREPEATTHEQUESTION? HOWHEARINGLOSSAFFECTSYOU THENUTSANDBOLTSOF THENEWNSWCTPSCHEME

24/05/2017 1:16PM

WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: letters@lawsociety.com.au Please note: we may not be able to publish all letters received and we edit letters we reserve the right to shorten letters we do publish.

Will we legalise

/lawsocietyofnsw

euthanasia? FormerNSWDirectorofPublic Prosecutions NICHOLASCOWDERY exploreswhydyingwithdignity is stillnot legal inAustralia.

L astmonth a cross-party working group ofNSW politiciansunveiled adraft bill legalising voluntary assisteddying. e bill,whichwill be introduced toNSWParliamentwithin months,would give terminally illNSW residents over 25 the legal right to end their own liveswithmedical assistance. Atpresent inAustralia, the laws againstmurder and suicide forbid all formsof voluntary assisteddying. Even awillingparticipantmaynot lawfully take such action – the laws in every state criminalise such conduct. ey extend to active euthanasia and to assisted suicide. ere are some legislativeprovisions andmedicalpractices throughout Australia for advance caredirectives that affect thedoctor/patient relationship, butwhichdonot relieve from criminal liability.Despiteother jurisdictions around theworld introducingprovisions todecriminalise voluntary assisted dying, aswell as attemptsbydifferent states to legalise euthanasia,Australian

/LawSocietyNSW

parliamentshavebeen reluctant to follow throughon change.

andmore grave problems than those it sought to address.” iswas at a comparatively earlypoint in themoderndebate about euthanasia and, fortunately, it seems that thosedire predictionshavenotbeenborneout in theplaceswhere voluntary assisteddying isnow allowed. Limits and safeguardshavebeen secured andflow-onproblems avoided. Even in theUK therehavebeen some interestingdevelopments in criminal lawwith thepublicationof guidelines for such casesby theCrownProsecution ServiceofEngland andWales at the urgingof the (then)HouseofLords following thePurdy case. ishistoric judgment in2009protected aUKman fromprosecutionwhenhe accompanied hiswife,DebbiePurdy,whowas suffering frommultiple sclerosis, to attend a euthanasia clinic inSwitzerland. Internationalmoves Modernmoves to legalisevoluntary assisteddying seem tohavebegun in Switzerland in1942,with relevant legislation in1994. It isoneofagroupof jurisdictions thatenableassisted self- administrationofa lethalagent, theothers includeGermany, Japan,Canada,Mexico andanumberofUS states. e administration of a lethal agent by anotherhasbeenpermitted in Colombia since1992, eNetherlands since2002,Belgium since2002 and extended to children in2014 and Luxembourg since2009. InDenmark, voluntary assisteddying ispermitted and inFrance a terminally illpersonmaybe kept sedateduntil

Whythereluctancetochange? What stopsus frommaking change in the area of voluntary assisteddeath?A UKHouse ofLords SelectCommittee in1993 said: “We donot think it is possible to set secure limits on voluntary euthanasia. Itwould be impossible to frame safeguards againstnon-voluntary euthanasia if voluntary euthanasia were to be legalised. Itwould benext to impossible to ensure that all acts of euthanasiawere truly voluntary, and that any liberalisation of the lawwas not abused.Moreover, to create an exception to the general prohibition of intentional killingwould inevitably open theway to its further erosion, whether by design, by inadvertence, or by the human tendency to test the limits of any regulation. ese dangers are such thatwe believe that any decriminalisation of voluntary euthanasiawould give rise tomore

/law-society-of-nsw

CONGRATULATIONS! John Churchill has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

26 LSJ I ISSUE34 I JUNE2017

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p26-27_HotTopic-June.indd 26

18/05/2017 11:18AM

While the article reads as a dispassionate and objective explanation, it makes a number of very contentious assertions. For example, it

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The scientific examination of handwriting, documents and fingerprints

Thank you, Floyd From unconscious bias to action on asylum seekers and refugees, editorials against imprisonment (just after a crazed gunman on parole killed a reception clerk and died in a hail of police gunfire) to articles explaining why dying with dignity is “still not legal” in Australia (news to me), I was trying really hard to find something, anything, worthwhile in the June 2017 edition of the LSJ outside of the legal updates. Thank heavens for Floyd Alexander-Hunt (p39). She nailed it. Hadyn Oriti, Port Macquarie Freedomof speech Morgan Begg’s letter ( LSJ May 2017) erroneously reasons that because section 18D is but sometimes relied upon to escape liability for racial vilification under section 18C of the Racial Discrimination Act , it is not a reliable defence for freedom of speech. Both logic and experience suggest otherwise. Section 18D, for example, protects fair comment. However, a respondent cannot successfully rely on section 18D when there is a finding against the respondent of a lack of good faith, good faith being a threshold requirement for any of the exceptions in section 18D to apply. In doing so, the statute

strikes an appropriate balance between freedom of expression and freedom from the harms of racial vilification. The current provisions actually support freedom of speech for those who would otherwise be intimidated from exercising that right. History has taught us that racial vilification deprives its targets of equal treatment and a fair go, disempowering them and excluding them from society, either wholly or in part, often intimidating them into silence. Not only history. Consider the Scanlon Foundation’s report, Mapping Social Cohesion in 2016. Reported incidents of discrimination on the basis of skin colour, ethnic background or religion have increased markedly in the past 10 years. The QUT case, to which Ms Begg refers, exemplified not that the law was in need of reform but that its administration by the Human Rights Commission passed a series of significant reforms to the commission’s processes but rejected the government’s proposed amendments to section 18C, that would have allowed, for example, the public humiliation of Australians based on their race. David D. Knoll AM was in need of reform. Fortunately, the Senate

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ISSUE 35 I JULY 2017 I LSJ 11

Mailbag

LETTERS TO THE EDITOR (CONTINUED)

Inbox

Onthesocials

City-centric profession As a solicitor who has been practising for 30 years, I recently had occasion to reach out to Lawcare, only to discover how city-centric this profession is. The same general practitioner has been running Lawcare (no doubt most admirably) since its inception some decades ago. However, he is only able to offer a consultation at his rooms in Surry Hills, and the “initial assessment and referral by phone” promised on the Law Society’s website never eventuated. All the psychologists and counsellors bar one psychiatrist, listed on the Small Practice Portal – Wellbeing – Specialist Panel, are located in the city or the eastern suburbs. practitioners do not practise, or live, in the Sydney CBD? There is a north of the harbour and, in fact, a south and west of the harbour, too. The profession has come a long way since I was admitted in terms of EEO, anti- discrimination, awareness and involvement in important social issues affected by the law and the legal system, and in caring for members of the profession – a far greater awareness of the challenges and difficulties we face as lawyers in the 21st century. But it was somewhat disheartening when I found myself in a position of actually needing to call on the support that apparently Has the Law Society forgotten that most

now exists, to find that it only exists if you are a city practitioner. Janine De Saxe, Dee Why The technique of persuasion The interview with Holly Ransom and Bernard Salt (May LSJ ) was entertaining and informative. However, Bernard Salt touched upon it and Holly Ransom appeared to be aware of it but both failed to understand the importance, not only in the practice of the law but in life generally, of the technique of persuasion. One of the best pieces of advice I received at the commencement of my career was to read the book by Sir David Napley (published in 1975) that provided a guide to the skills that an advocate is required to master. The ability to persuade cannot rely on age, experience, digital skills, enthusiasm or speed, rather reflection, preparation, listening, understanding and patience, all of which, of course, is not limited to the practice of law before the courts, but with clients and in life generally. The technique of persuasion has been studied and mastered over generations and regardless how one categorises current or future generations, it will always remain, in my opinion, a fundamental skill for life and

Re: The burden of unconscious bias June LSJ cover story

“Great piece – raw and real. Kate Eastman SC and Fiona McCleod spot on as always! Such a talent drain from graduate to leadership and counsel ranks. To truly serve our communities we must be representative of them!” Fay Calderone, Twitter “I was disappointed to see that disability missed a mention. Disabled and neurodivergent people bring really great things to the profession, but they are often unconsciously “Firms should not be told who they have to employ or the methods by which they should recruit. It should not matter if a firm prefers to employ a certain ‘type’ of person. Why should it then be judged and called biased because all of its staff members are not from different locations and of different age brackets and genders?” Jason Cavallaro, LinkedIn “I agree that they shouldn’t be told who or how to employ but there have been multiple tried and tested methods that can be used as a basis to recruit the best employees possible.” Thomas McKenna, LinkedIn “Research has also shown that witness testimony from ‘attractive’ participants (females in the study I think) is considered more credible.” Belinda Cox, Twitter discriminated against.” Brooke Murphy, Twitter

the profession. John Churchill

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Re: My night in prison, June LSJ In Focus “Great read! If disturbing. Important

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“Wouldn’t have imagined the cost of prevention would be so much lower than incarceration. Something to think about re ‘law and order’ politics.” Dr Daya Sharma, Twitter “Great story, compassionately told.” Jenny Valentish, Twitter “The comments around these young people’s surroundings and environments they are brought up in are bang on. No wonder poor choices are made, most of the time they know no better.” Jamie Lobina, LinkedIn

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ISSUE 35 I JULY 2017 I LSJ 13

Briefs NEWS

Access to justicebecoming “aglobal concern”

crisis. It is quite clear that access to justice is becoming a global concern.“ Prof Genn said the United Nations was talking about the need for access to justice and the dangers of an absence of access to justice. The OECD had recently set up a group looking at access to justice questions and they talk about why access to justice is important not just for citizens but to societies in terms of development. Professor Genn said unmet legal needs affected other areas of society, such as health, and that key to a solution was evidence. She praised the Law and Justice Foundation for quality empirical research she described as the first step for anyone wanting to improve access to justice, especially for the disadvantaged. “I have heard it said that the right to legal advice and representation is the single right that is most important in making other rights effective,” she said. “Understanding the experience and extent of what people need is the first step towards devising policies for people’s needs.” Last year she launched a student-led legal advice clinic in a health centre in East London to reach disadvantaged people. “The justice system deals with the result of poor decisions in other areas of government,” she said. “Problems tend to cluster and cascade and early intervention can be crucial. What is needed is a coordinated approach. “ Professor Genn said the development of online courts and tribunals was improving efficiency and access to justice for people as long as they weren’t illiterate. “If people can’t read or write, online services aren’t much help,” she said. “Disadvantaged people need advocacy as well as access to services.“ NSW Attorney-General Mark Speakman congratulated the Law and Justice Foundation on its 50th birthday saying he had great respect for the organisation’s “dedication to improving access to justice

in NSW”. He said the foundation’s 2012 Law Survey was internationally renowned and the world’s most comprehensive survey of legal needs. The survey found that every year, about 2.8 million people in NSW – that’s half the NSW population aged 15 years and over – have a legal problem. Of these, about 85 per cent are civil law problems – everyday problems – and about 15 per cent are criminal law problems. People seek advice for only half of all legal problems. For 19 per cent of legal problems, people take no action. “What the LAW Survey and the 2014 Productivity Commission Report on Access to Justice Arrangements tell us is that we have a sizeable problem with access to justice in Australia,” Speakman said. “Things such as court processes and dealing with lawyers are daunting for many people, yet neither of these things may even be necessary when people have a legal problem to deal with.” Speakman said that while the NSW Bureau of Crime Statistics and Research reports key information about our criminal justice system, there was no equivalent bureau for reporting on civil matters. He noted that the Local Court and the NSW Civil and Administrative Tribunal (NCAT) dealt with 90 per cent of the civil justice workload in NSW. He said new technology could help break down some barriers to accessing the justice system and that the Department of Justice was increasing digital services in courts and tribunals. “Online registry, which has 65,000 registered users, has delivered many conveniences,” he said. “A legal practitioner can file a form like a Statement of Claim through the Online Registry in about 15 minutes – down from about five days using the over-the- counter process. Close to 6,000 forms are filed online every week. Our record week was in March with 6,416 forms filed in one week.”

BY JANE SOUTHWARD

Professor Dame Hazel Genn

Professor Genn, Dean of the UCL Faculty of Laws and an international authority on access to civil and administrative justice, said England and Wales were experiencing an access to justice crisis partly due to budget restraints – and they are not alone. “Most societies governed by the rule of law face similar problems, which is how to provide citizens access to justice in a way that is effective for the citizens and affordable for the state,” said Prof Genn. “This is neither easy nor cheap. In the UK we have had nine years of austerity and are experiencing an access to justice Hazel Genn told the Law and Justice Foundation Research Symposium “Reshaping Justice: Client-centred service delivery, technology and innovation” on 20 June at NSW Parliament. As societies increasingly struggle with global challenges such as health, ageing and security, expenditure on the justice system has come under pressure, Professor Dame

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NEWS

Legal legends

NEWTHISMONTH

Applications open for public service awards Nominations have opened for an award and scholarship that recognise and celebrate excellence in government service. The Michelle Crowther PSM Excellence Award 2017 recognises Crowther’s commitment to client service throughout her career at Legal Aid NSW. The annual award highlights excellent government service by a public sector solicitor or group during 2016. The John Hennessy Legal Scholarship 2017 honours Hennessy’s service to the Attorney-General’s Office, the legal profession and the administration of justice. The scholarship supports public sector solicitors who undertake research or further study and is open to public sector solicitors who are members or associate members of the Law Society. Applications for both close on 1 August and the winners will be announced at the annual Government Solicitors Conference on 5 September 2017. Both awards are sponsored by the Law Society of NSW Government Solicitors Committee. For more information visit lawsociety.com.au/resources/ areasoflaw/Government/index.htm New President for Human Rights Commission Attorney-General George Brandis QC has announced Emeritus Professor Rosalind Croucher AM will replace Professor Gillian Triggs as Australian Human Rights Commission President on 30 July. Professor Croucher has been with the Australian Law Reform Commission (ALRC) for more than 10 years, almost eight of those as President.

by

Justice Michael Kirby Former Justice of the High Court of Australia

Human rights is rarely an easy or a popular issue. None of us should rest content while there are victims of human rights abuses anywhere on our planet. The fundamental motivation for the pursuit of human rights is love. Speech on receipt of the Japanese Order of the Rising Sun, Gold and Silver Star, Tokyo, 9 May

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Briefs NEWS

six minutes with

Why did you study law? Initially, law was my “Plan B” in case a career in communications didn’t work out. So I started my law degree intending just to become qualified; I never really planned on practising law. Why do you prefer working in-house? It’s the best aspect of legal work. You aren’t just a lawyer; you are part of a business. You get to use your commercial acumen and help the company achieve goals. It’s much more rewarding than working in private practice and just being assessed on billable hours. I enjoy working with a diverse group of people, not just lawyers. Howwas working at Jurlique? I loved it. It was more challenging than I initially expected. I previously had worked for an Australian company, Australian Pharmaceutical Industries, but as Jurlique is a global company (its products are sold in more than 20 countries and the company has offices around the world), it involved a whole range of new challenges, especially as there were only two lawyers in the organisation. How did you land the role at Amazon? I always wanted to work for a US tech company; I just never thought it would happen. I’ve always been interested in technology and doing things better and more efficiently. But when a friend, an Australian lawyer, landed a position with Amazon in Seattle, MARGARITA VARIGOS Margarita Varigos is trading one stunning harbour for another as she takes on a role as an in-house lawyer for Amazon in Seattle. She worked as legal counsel for Australian skincare company Jurlique in Sydney for the past two years. She has also worked as legal counsel for Australian Pharmaceutical Industries and as a lawyer for Thomson Geer (formerly Herbert Geer) in Melbourne. Varigos received a BA in Arts (Comms) and LLB from Monash University. BY LYNN ELSEY

I decided to apply, especially after learning that Washington was one of the US states that exempts foreign lawyers from having to be a member of the state bar, in some circumstances. What will be you be doing? My title will be Corporate Counsel – Global Store and will involve expanding Amazon’s global retail offering. What are youmost nervous about? Nothing. I’m excited and ready to give it my all. I have a passion for innovation and technology so I can’t wait to get my hands dirty. And the global experience I gained at Jurlique will, hopefully, come in handy. I haven’t actually been to Seattle so I have been researching the neighbourhoods and trying to figure out where I want to live. Have you had any negative feedback here in Australia about taking a role with Amazon? Yes, some people have asked me if I have moral issues with working for the company, given its impacts on the retail industry. But I don’t have any problems with it. You can’t stop the world from evolving. Australia is extremely behind the rest of the world in terms of e-commerce. Most importantly, and as a Melbourne native, how will you cope with American coffee? I think I’m safe. I’ve already done my research on food and coffee places around Seattle.

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NEWS

mind your ethics

Q&AWITH LINDENBARNES , ETHICS SOLICITOR

Q: My boss beratedme last week because I forgot to stand up in court when a judge entered. Can you explain the basic Ps and Qs solicitors need to know? A: This is the ethics column, so how do we come to be looking at this issue? The simple answer is that we are all ocers of the court. The ethical conduct obligations which flow from that include rule 3 of the Conduct Rules which begins: “A solicitor’s duty to the court and the administration of justice is paramount.” Then there is rule 4: “A solicitor must … be … courteous in all dealings …” and you can see how courtroom etiquette is a vital part of our obligations. Those Ps and Qs are not just for litigators. The non-litigators among us might attend the swearing in of a new judge. When the president of the Law Society gives a speech of welcome, we must stand with them because the president is STTHOMASMORESOCIETY extendsaninvitationtoallmembersofthelegal professionandtheircolleguesandsupportsta tothe PATRONALFEASTDAYDINNER withguestspeaker,theHon.MarkSpeakman,SC,MP, Attorney-GeneralofNSW Priortothedinner,Masswillbecelebratedat StMarysCathedralSydneyat5.30pm(allwelcome).

speaking on behalf of all solicitors. Here is a list of the more day-to-day Ps and Qs: 1. Stand when the judge enters or leaves 2. Bow when you enter or leave 3. Never leave the bar table empty 4. Always be ready when your matter is called 5. Never put your bags on the bar table 6. Never, ever lie (not just in court) 7. Make sure you know the correct form of address for the bench 8. Do not address the bench with familiarity. Some courts will not entertain “Good morning”. These rules all go towards ensuring that we behave properly as ocers of the court in upholding our system of justice, which is a precious burden we all share.

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Briefs NEWS

WELLBEING Compos Mentis free podcasts Endless briefs, clocking up billable units, demanding clients, o‚ce politics, tight deadlines, red-flagged emails, sleepless nights and more – it’s not surprising that more than half of all lawyers and barristers su‡er from mental health challenges. Two young lawyers have responded by creating a series of podcasts to help lawyers balance the challenges of staying productive and healthy in the highly competitive environment of the law. The first series of episodes, which are designed to address common workplace challenges including stress, perfectionism, rejection and managing high career trajectory expectations, cover a range of topics including wellbeing, managing stress and exploring mindfulness. The free 30-minute podcasts grew out of conversations between two lawyers, Natalie Campbell, a reader at the Victorian Bar who works in public, industrial and employment law, and Jennifer Lim, a senior legal policy o„cer working in human rights for the Victorian government, about the professional and personal challenges they were finding across the industry. The goal of their self-funded project is to provide lawyers with suggestions for balancing personal wellbeing with the demands of professional success. Visit composmentis.sqaurespace.com to access the free podcasts. Save the date Solicitors are invited to the annual Government Solicitors Conference on 5 September at Doltone House Hyde Park. NSW Attorney-General Mark Speakman will open the conference. Speakers include Elizabeth Tydd, NSW Information Commissioner and CEO of the Information and Privacy Commission, and Counsel assisting the inquest into the Lindt siege Jason Downing. Visit eshop.lawsociety.com.au/index.php/ catalog/product/view/id/3911 for details.

AMYCOSSALTER Promoted to Senior Associate Barkus Doolan Family Lawyers

MAYSAAPARRINO Joined as a Partner Project Lawyers

CLAIREPARSONS Joined as a Senior Associate Project Lawyers

LUCINDA MORPHETT Joined as a Senior Associate Project Lawyers

ANDREACHRISTIE- DAVID

JOSHUAKHOO Joined as a Senior Associate (Banking & Finance) DibbsBarker NELSONARIAS- ALVAREZ Joined as a Partner (Construction & Infrastructure) Madison Marcus Law Firm

Appointed to Chief Operating O„cer Salvos Legal (Humanitarian)

CHRISTINECLARKE Joined as a Senior Associate Broun Abrahams Burreket

PHILIPCOUCH Joined as a Senior Associate (Real Estate &

DANIELROD Joined as a Solicitor Farrar Gesini Dunn, Double Bay

Construction) DibbsBarker

KEVINPRINGLE Joined as a Partner, Dispute Resolution Kemp Strang

IVANOSHRY Joined as a Partner, Corporate Kemp Strang

Know someone with a new position? Email us the details and a photograph (at least 1MB) at journal@lawsociety.com.au

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NEWS

COMPETITION Nothingarbitrary about theworld’s largestmoot

The University of Notre Dame Vis Moot team, left to right: Judiel Garcia, Olivia Vallieres (back row), Kate Chalker, Gemma McTegg (back row), Madeleine Goodsir in Vienna,

BY ANGUS MACINNIS AND SVETLANA GERMAN Did you hear the one about the 342 law schools who walked into a bar? If not, it’s probably because you weren’t in Vienna in the week before Easter. If you had been, you might have seen some of those students battling it out in the Willem C. Vis International Commercial Arbitration Moot before heading to the bar to share war stories with teams from around the world. The Vis Moot, as the annual competition is widely called, starts with a problem, which always involves a contract for the sale of goods (this year it was fan blades for jet engines). The contract is always governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the moot always takes place before an arbitral tribunal. As a result, students need to learn how to apply legal principles they are familiar with (for example, the interpretation of commercial contracts) to an unfamiliar legal system, the CISG. The problem is released to the teams in early October. Familiarity with the new system needs to be grasped quickly. Before oral arguments can be prepared, each team must first submit a 35-page written memorandum for the claimant, in December, and another for the respondent, in late January. The process of researching and writing the memoranda requires students to work closely as a team. Teams from two NSW law schools, the University of Notre Dame (Australia) and the University of Sydney competed in this year’s event. “Competing in the Vis Moot in Vienna was a wonderful experience academically, professionally and socially,” said

Madeleine Goodsir, a member of the University of Notre Dame team. “The team spent months researching and preparing written submissions, which formed the basis of our oral arguments and provided us with incredible practical experience.” The students’ coaches included Heydon Wardell-Burrus, from Allens, and Sophie Maltabarow, Associate to Leeming JA, who were recent competitors in the Vis Moot and found the experience invaluable in the development of their legal careers. “The Vis Moot requires students to produce high-quality legal work as part of a team. It is certainly a distinguishing factor when applying for legal roles,” Wardell-Burrus said. Commercial law firms also recognised the benefits. Damian Sturzaker, the head of the Dispute Resolution team at Marque Lawyers, said, “We find that law graduates who have experience with mooting are able to transition more quickly into daily legal practice, especially dispute resolution.” Sturzaker is also a national councillor with the Australian Branch of the Chartered Institute of Arbitrators, which has sponsored Australian teams in the Vis Moot for a number of years. “Our support of the Vis Moot has been grounded in a strong belief that the promotion of Australian law students on the international stage is good for the reputation of Australian arbitration,” he said. The 2018 competition kicks off in October and culminates in Vienna in the week before Easter.

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Briefs NEWS

CONGRATULATIONS ALTERNATIVEDISPUTERESOLUTION

Steven Lancken, Deputy Chair of the Law Society of NSW Alternative Dispute Resolution (ADR) Committee, has been

named Mediator of the Year. Lancken (pictured with CEO of

Resolution Institute Fiona Hollier) was praised for increasing awareness and use of ADR among lawyers in NSW, and for his work organising the Law Society- sponsored Global Pound Conference (GPC) on dispute resolution in Sydney on 29 May. More than 500 professionals attended this year’s GPC conference in Sydney to discuss the theme “Shaping the future of dispute resolution and improving access to justice”. Barrister and former Solicitor General of Australia Justin Gleeson delivered the keynote address and discussed the benefits of various forms of dispute resolution including litigation, arbitration, conciliation and mediation. The first GPC was held in London

COPYRIGHTLAW Cooking thebooks to lawreform Librarians across Australia have successfully cooked their way to copyright law reform with an innovative– and tasty – campaign to update Australian copyright law. The Australian Library and Information Association (ALIA) ran a campaign as part of their Freedom of Access to Information and Resources (FAIR) initiative called “Cooking for Copyright”, which asked participants to cook an old recipe and to post a photo to Facebook or Twitter with the hashtag #CookingForCopyright. Hundreds of librarians across Australia uploaded vintage recipes to the FAIR website, technically in breach of antiquated copyright restrictions, and then cooked the results. All the cake and muffins eventually caught some hungry politicians’ attention, and on 15 June Federal Parliament passed the Copyright Amendment (Disability Access and Other Measures) Bill. The bill removes perpetual copyright in unpublished works such as handwritten recipes and allows works to be reproduced for disabled people to read or access. “It feels great to have cooked our way to such deliciously successful reform,” said Jessica Coates of the Australian Libraries Copyright Committee.

MID-YEARASSEMBLY Recordnumber of young lawyers unite for apurpose A record turnout of more than 110 young lawyers gathered on the Central Coast for the NSW Young Lawyers Mid-Year Assembly in June. The 2017 NSW Young Lawyers patron, Justice Margaret Beazley AO, delivered the keynote address on the theme “Unite with a purpose” and called on attendees to unite for a common purpose, and to support and help advance young lawyers in the NSW legal profession. Other speeches during the weekend-long conference focussed on social justice issues and discussed current and future projects by NSW Young Lawyers. "I am incredibly proud to be part of an organisation in which so many volunteers put their time into bettering our profession and supporting young lawyers and the community,” said NSW Young Lawyers President Emily Ryan. in 2014 and has since led to a series of conferences around the world to generate conversation about improving access to justice and the quality of justice in civil and commercial conflicts. For more information on the event visit globalpoundconference.org

NEWRESOURCES Contract for sale of landandcosts guidebook The contract for the sale and purchase of land 2016/17 edition has been released.

This edition is an interim update to take into account changes made to the rate and threshold of the foreign resident capital gains withholding measure (“FRCGW”), expected to commence on 1 July. The references to the FRCGW rate of 10 per cent and the $2 million threshold in the 2016 edition have been replaced with a generic drafting approach. The 2016/17 edition also excludes the adjustment of surcharge land tax from any adjustment of land tax under clause 14.4 of the contract. A further edition, the 2017 edition, is expected to be released in July/August 2017, to take account of likely changes to the Conveyancing (Sale of Land) Regulation 2010, and other legislative updates e.g. strata legislation. Also in July, the Law Society will release the 7th edition of the Costs Guidebook.

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