LSJ July 2018
ISSUE 46 JULY 2018
Grinning and baring it Why current laws around sexting are criminalising today’s youth Banishing burnout Does hitting rock bottom mean the end of your brilliant career? Reflecting on change Justice Virginia Bell on the battle for women’s legal status Criminal law reforms An analysis of sweeping changes to sentencing and committal laws
The sink-or-swim culture hurting our junior lawyers
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ISSUE 46 I JULY 2018 I LSJ 57 Sydney • Brisbane • Melbourne • Perth • Singapore • Hong Kong • India
26 Hot topic
36 Protectingminors Denise Cullen looks into
48 A day in the life
Kate Allman gets comfy to examine the growth of the so-called tracksuit economy
NSW Health Care Complaints Commissioner Sue Dawson on why she ensures weekends are sacred
why lawyers are increasingly concerned about the laws around sexting
28 In focus
51 Career coach
40 Skin of their teeth
Denise Cullens delves into the complicated world of drug and alcohol testing in the workplace
Fiona Craig oers tips on how to make the most of the opportunity to work from home
Justice Virginia Bell reflects on her own experience of leading in law during a dicult time for women lawyers
30 Cover story
Kate Allman unearths some disturbing truths about the experience of junior lawyers in law firms across the state
Diane Nazaro on why hitting rock bottom does not mean the end of a beautiful career
Feeing blue? It could be seasonal aective disorder. Plus, learn how to better read a room during important meetings
Lynn Elsey explores wild, wonderful and luxurious Oregon, USA
ISSUE 46 I JULY 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 12 News 16 Members on themove 21 Expert witless 21 Q uiz 22 Out and about 44 Careers 50 Doing business 51 Library additions 52 Extracurricular 56 Fitness 64 Lifestyle 66 The case that changedme 106 Avid for scandal
84 Practice & Procedure Unsure about Online Court and Online Registry? Our Litigation Committee has your queries covered 86 Costs
The Law Society’s policy experts bring you up to date with the latest in law reform 71 Practice & Procedure The Hon Justice Beazley
reinforces the importance of the new NSW Court of Appeal Practice Note
This month we begin part one of an examination of the power of the solicitor’s lien
74 Criminal law
Making sense of the highly anticipated changes to NSW sentencing laws
Why it’s time to confront the significant privacy challenges posed by our growing use of drone technology
78 Criminal law
Specialists explain the impact of the Early Appropriate Guilty Plea reforms on children and the committal process in NSW
Why appearances matter: uncovering tensions in religion and secular law
93 Case notes
Two experts in the field share their views on what is shaping up to be a big year for litigation funding in Australia
Recent key judgements: HCA, FCA, Family law, Criminal law and Wills & Estates
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The legal profession is in a state of flux and changing at an unforeseen speed. Equip yourself with the knowledge and tools needed to survive and thrive in an ever-changing landscape at the inaugural innovation and technology conference presented by The Law Society of New South Wales. FEATURING: FR I DAY 1 4 S E P T EMBER 20 1 8 • SO F I T E L S Y DNE Y DARL I NG HARBOUR
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ISSUE 46 I JULY 2018 I LSJ 55
A word from the editor
I can very much relate to Kate Allman’s cover story on page 30, “Bloody terrifying: the modern law graduate experience”. I started my career as a graduate lawyer in a large Sydney rm, and very quickly got used to the feeling of crippling anxiety each and every morning. I would struggle to get out of bed, thinking of any excuse under the sun as to why I could call in sick. I spent most of my time feeling terri ed. Terri ed
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2018 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.
of being yelled at by the judge for not knowing what I was doing. Terri ed of taking too long and too many billable units to walk back from court. Terri ed of making the wrong decision, or not understanding something (because god forbid I ask a question), or not billing enough hours, or daring to speak up. Terri ed of being screamed at (again) in my supervising partner’s glass-fronted o ce for all to see. My con dence was slowly but surely shattered. I was constantly unwell. I drank myself stupid to cope with the stress. But everyone else did, too, so that was normal. It was all normal. It was only after I left the law and launched into another career that I realised how abnormal it was. My experience wasn’t rm-wide; it was reserved for one particular practice group. And of course not all law rms are like this. But it’s more common than we’d like to think – and, in my case, the damage was done. While I don’t think the damage was lasting, it took me a long time to shake the anxiety and self-doubt. I’m lucky to have built an alternative career of which I am proud and that I genuinely love. Others aren’t so lucky. Claire Cha ey
KATE ALLMAN Cover story p30 Kate has university degrees in both
MARGARET BEAZLEY AO Practice note p71
VIRGINIA BELL AC Women in law p40 Justice Virginia Bell was appointed to the High Court in February 2009. In an extract of a speech delivered at the Francis Forbes lecture in May, she reflects on the struggle of women lawyers over the past 100 years – and what it means for her.
THOMAS SPOHR Sentencing p74 This month, our trusted criminal law expert Thomas Spohr goes beyond his usual witty case notes with an examination of the immediate and
27,501 * *AUDITED MARCH 2018 DISTRIBUTION ISSUE46 JULY 2018 LSJ07_Cover (V2)_JULY.indd 1
Justice Margaret Beazley has been the President of the New South Wales Court of Appeal since 2013. She informs the profession about an important new Court of Appeal Practice Note which commenced on 1 January this year.
journalism and law, and is a multimedia journalist at LSJ . She delves into the fraught issue of inadequate supervision of junior lawyers within law firms – and the damage that this sink-or- swim culture can do.
future impacts of the sweeping new changes to NSW sentencing laws.
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 email@example.com. 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 do not accept unsolicited articles.
Cover design: Andy Raubinger
20/6/18 4:41 pm
NEXT ISSUE: 1 AUGUST 2018
6 LSJ I ISSUE 46 I JULY 2018
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ISSUE 46 I JULY 2018 I LSJ 55 Things you need to know: Credit criteria, fees and charges apply. T&Cs available on request. Offer valid for new applications submitted between 11 Jun 18 to 30 Sep 18 and loan settled by 30 Nov 18. Excludes Equity Access Loans and internal refinances or switches from Westpac, St.George, Bank of Melbourne, BankSA and RAMS. Not available to company and trust account holders. Only one Velocity Points home loan offer can be taken up by the Primary applicant within a 12 month period. Primary applicant must be a member of the Velocity Frequent Flyer program. Velocity Membership Terms and Conditions and Premier Advantage Package Conditions of Use apply. Full offer terms and conditions available at Westpac.com.au/velocity. Tax consequences may arise from this promotion for investors and customers should seek independent advice on any taxation matters. The credit material in this promotion has been prepared by Westpac. Law Society NSW may benefit from Westpac in the form of a cash payment (being up to 0.5% of the eligible Westpac loan amount actually approved and drawn down). You can ask Westpac if your loan is an Eligible Loan for which the Introducer will receive a commission. Please present this advert at the time of loan application for Law Society NSW to be eligible for a commission payment. © Westpac Banking Corporation ABN 33 007 457 141 AFSL and Australian credit licence 233714. WBC 00938 06/18
President’s message N SW is spending more on prisons than ever before. e prison population is at the highest level it has ever been, largely driven by an increase in the number of people being arrested and held on remand, and it is expected to increase further. Police nowhave capacity to boost their good work as a result of increased funding under the NSW Budget. However, without additional resources for the criminal courts, we may anticipate even more downward pressure on the justice system. It is clear we need long-term funding solutions to address court backlogs and over owing prison numbers. e work of solicitors is critically a ected by these overall systemic problems. While victims await justice and accused spend longer periods on remand, delays in the nalisation of matters have a serious impact on the viability of legal practice. e setbacks clients face mean solicitors and rms must juggle the nancial consequences of work remaining in progress. Private solicitors, particularly those in regional and bush areas, are also struggling to absorb the increasing amount of legal assistance work left to them. While additional budget funding will assist Community Legal Centres, the distribution of funds for Legal Aid NSW in relation to the early appropriate guilty pleas reforms will be determined following the completion of a review of legal aid fees. e Law Society acknowledges that one of the aims of the criminal justice reforms is to improve the e ciency of the criminal justice system. But without an increase in the pay rate for private practitioners undertaking legal aid work, which has remained at $150 an hour since 2007, we risk more private practitioners walking away from legal aid work because they can no longer a ord to ll the gaps that core legal assistance services cannot provide. Let us not forget the critical economic role solicitors play in our communities, which is particularly acute for practitioners in regional areas where individuals, families and communities rely on their local lawyer. We need more measures aimed at increasing the e ciency of the courts. is would not only go towards improving the legal system and the e cacy of legal practice, but the economy as a whole.
Doug Humphreys OAM
8 LSJ I ISSUE 46 I JULY 2018
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ISSUE 46 I JULY 2018 I LSJ 9
Shakingupthesystem JudgeRobynSextononhow innovation in thecourtroomhaschanged thegame Earlymorninghilarity Thewinning speechandbestzingers from the2018NSWYLGoldenGavel Competingwithclients Theperilsof insourcing for in-house counselandprivatepractitioners
ISSUE45 JUNE 2018
Family law fail The proposed merger of the Family Court
Kill o sexist language The relevant legislation refers to ‘executor’, ‘testator’, ‘administrator’, ‘caveator’ and the like without distinction for the sex of the person being described. Yet court decisions occasionally refer to ‘executrix’, ‘testatrix’, ‘administratrix’, ‘caveatrix’ and the like – words which aren’t found in the legislation. Judges, mostly but not exclusively, use this language to refer to a woman who meets the legislative description. I have never had a client refer to herself by these titles. I have rarely had a fellow solicitor do so. It seems odd that this sexist and outmoded language is still used, especially given the history which tells of the discriminatory use of the words. Take ‘testatrix’ as an example. When the Statute of Wills 1540 first allowed a person to devise real estate, a ‘person’ didn’t include an
oces by the ineciencies of a crippled family law system bursting at the seams through lack of proper funding. For goodness’ sake, someone tell the government family law can’t be done on the cheap. It requires real financial resources. Michael Vassili An Indigenous museum? How best to describe a property/residential house about to come on the market for sale with three Aboriginal graves – allegedly Bennelong and two relatives – locally and historically recognised, and with visible mounds onsite? Can it be said to be sold with vacant possession? It seems the ideal opportunity to become an Aboriginal Museum – a genuine first in Australia – with excellent waterfront access to the public. P. L. Hill
Theartofpersuasion Aguide to lump sumcostorders andgetting the result youwant
and Federal Circuit Court is akin to spending money to weld the sinking Titanic to the aptly-named Albatross, which sunk some seven years before by way of iceberg, in order to keep it afloat. To patch them together in a Service NSW approach to some eciencies-of-scale theory is so clearly not going to work. What the court needs is one of two things (and ideally both): more judicial ocers and a radical rethink of the litigious approach to problems, which should be resolved by experts and assessors and not lawyers (including judges) at first instance. Someone will complete a study into how children’s lives have been so adversely aected, together with their parents’ financial futures flushed into the bowls of legal practices’
Reshaping justice in Bourke Howanewapproach tocrimeprevention is rejuvenatingoneofNSW’smostvulnerablecommunities
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24/5/18 5:03 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
Please note: we may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! MICHAEL VASSILI has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 46 I JULY 2018
Wanting to focus on your area of law? Shine Lawyers are now purchasing personal injury files. Shine has a team of dedicated personal injury experts in New South Wales who can get these cases moving, allowing your firm to concentrate on your core areas of law. We are prepared to purchase your files in the areas of:
No insinuation We reject the suggestion
infant, lunatic or married woman. So the use of ‘testatrix’ was relevant as it identified someone who may lack the relevant legal capacity. As women are no longer deprived of the legal capacity to gift real estate by will, the use of ‘testatrix’ serves no useful purpose other than to remind us of this discriminatory legal history. Then there’s ‘administratrix’. It was once the practice of the Ecclesiastic and then Probate court to not grant the administration of an estate to a woman if a man was available. Use of ‘administratrix’ revealed the absence of an available man. Times have passed. Thankfully, the probate law and practice no longer discriminate between the sexes. Is it too much to hope that the discriminatory, now outmoded and sexist language of the past can be confined to history? Darryl Browne
(made in the letter published in May LSJ ) that our article “Re: Kelvin – A turning point for gender dysphoria” ( LSJ , Feb 2018 ) contained “recklessly worded” insinuations (or indeed any insinuation). We certainly didn’t intend to oend or insult either the plurality judges or any reader. We stand by our analysis. The important point to remember is that children and adolescents who are receiving treatment for gender dysphoria are now free from the previous, onerous requirement that their progression from stage one treatment to stage two treatment be approved by the Court. This is, as most commentators agree, a good
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ISSUE 46 I JULY 2018 I LSJ 11
Experts warn of increasingly sophisticated cyber attacks
BY DOMINIC ROLFE
and a client, then when they see a bank account nominated, they will step in and alter the bank account details.” So ak said a case in late 2017 saw $850,000 sent to the bank account of a hacker due to a fraudulent email. He also noted it was often the client’s email systems – not the lawyers’ – that had been compromised. Sylvia Ng, Director of Legal at PwC, said the growth of digital devices and cloud storage was driving risk, but that human error was still a big part of the problem. “ irty per cent of security incidents are from current employees,” said Ng. “Many come from inadvertent use of email, insecure use of USBs, or using public Wi-Fi.” Valeska Bloch, a partner at Allens, said it was essential for lawyers to educate all employees about what to do if they suspected a breach. “Education is a big thing,” said Bloch. “Someone usually knows they’ve done the wrong thing, but in many cases, they don’t tell anyone until months later when it becomes obvious hackers have used that data. If you have a no-blame approach, people are more willing to tell someone and stop the problem straight away.” Simone Herbert-Lowe, Manager of Strategy and Innovation at Lawcover, highlighted just how important it is for lawyers to get their cyber house in order. “As lawyers, we have strict con dentiality requirements and handle everything from Medicare details to M&A information as well as trust accounts,” she said. “Regardless of the size of the rm, there’s an obligation to get your cyber security in order.” Herbert-Lowe did have some good news, however, saying that Lawcover insurance policies covered lawyers in the event of a breach. She also urged lawyers to try the online cyber risk assessment tool Lawcover o ered on its website. Maria Milosavljevic, Chief Information Security O cer, NSW Government, closed the discussion with some advice on how the legal profession could create a culture of cyber awareness and put plans in place for when breaches occurred. “ e rst step is shifting your thinking from cyber security to cyber risk,” Milosavljevic said. “If you’re not ready to respond, then your rm is at risk.” The full panel discussion will be edited into a podcast available for download in coming weeks. Keep reading LSJ and follow the Law Society’s Facebook, LinkedIn and Twitter accounts to stay informed.
From left: Valeska Bloch, Maria Milosavljevic, Jim Sofiak, Kate Allman, Sylvia Ng, and Simone Herbert-Smith.
Most of us instantly dismiss spam emails telling us we’ve inherited money from a wealthy Nigerian prince. If it’s an email that appears to be from a client, however, we wouldn’t think twice about opening it. But as the inaugural FLIP Inquiry Series event “Behind e Buzz Words: Cyber Crime” heard, scammers are now using highly sophisticated means of in ltrating emails and IT systems used by the legal profession. Supported by Lawcover, the expert panel held on 20 June at the Law Society of NSW opened with host Kate Allman, the LSJ ’s multimedia journalist, recounting some disturbing statistics. “A recent survey of 122 lawyers conducted by Edith Cowan University and the Law Society of Western Australia found that 11 per cent of lawyers had no anti-virus protection on their work computers,” said Allman. “Forty-one per cent did not know what cyber security measures were in place on their smartphones, and 53 per cent forwarded work-related emails to a non-business email account such as Gmail.” e panel discussed that no lawyer or rm is immune from the risk of cyber attacks. Some of the most advanced IT systems in the world have been compromised, as recent breaches in networks run by the Commonwealth Bank, Medicare and the 2017 Australian Census show. Jim So ak, Chief Trust Account Investigator at the Law Society of NSW, said about $2.8 million had been stolen from NSW trust accounts by hackers or malicious actors. “ e systems are not being hacked per se,” he said. “It is more about email fraud. In a majority of cases, we see a hacker gaining the ability to monitor emails between a lawyer
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NEWTHISMONTH Thought leadership:
Reforming the local and district courts Solicitors are invited to take part in the second Thought Leadership panel discussion on 31 July, which will consider what reforms are available to ensure the Local and District Courts in NSW continue to deliver just outcomes for the community. Facilitator Annmarie Lumsden (Director, Criminal Law, Legal Aid NSW) will lead respected panellists in discussion. She will be joined by the Hon Reginald Blanch AM QC (retired Chief Judge of the District Court and Judge of the Supreme Court of NSW), Assistant Police Commissioner Joe Cassar APM (NSW Police Force), Kara Shead SC (Deputy Director of Public Prosecutions), and Dr Donald Weatherburn PSM FASSA (Director, the NSW Bureau of Statistics and Crime Research and Professor of the University of New South Wales). Visit lawsociety.com.au/ thoughtleadership to register. Just Music concert Save the date for the profession’s musical night of nights! Join us to celebrate justice and applaud the creativity of the NSW legal community at the Just Music concert on 31 August. Just Music will showcase the nalists of the Law Society of NSW’s charity song-writing contest. e performances will include original lyrical and instrumental pieces inspired by justice, in a variety of genres. Expect everything from moving ballads to toe-tapping rock, and a special guest performance! Proceeds from ticket sales will support the life-changing work of e Butter y Foundation, the national organisation that supports people with eating disorders and body image issues. Find out more at lawsociety.com.au/ justmusic
TimSoutphommasane OUTGOING RACE DISCRIMINATION COMMISSIONER
The commissioner’s five-year term will come to an end on 19 August, with some questioning whether he should be replaced.
Over the past five years, we have spoken out together ... Fighting racism is not easy. But when we do it together, in solidarity, we can succeed. We can prevail.
ISSUE 46 I JULY 2018 I LSJ 13
BRETT MCGRATH sixminuteswith
FAMILY LAWYER AND PRESIDENT OF MACARTHUR LAW SOCIETY
What attracted you to family law? I always wanted to be in a career where I could give back. It sounds cliched, but the law is an area where I thought, “Here is an avenue where I can help people.” I was always community- minded. I also had empathy for family law because I was about 16 when my mum and dad separated. Most important lesson you’ve learned in your career? e most important lesson I have learnt was from a partner who taught me at Marsdens. He said, “You can’t know all of the legislation and case law from the get-go. What is most important and what you can do now is to learn the practice of being a lawyer. Get your le management and case management down pat, everything else will come. Make sure you have the foundations right.” Biggest issues facing your region? e main thing is the lack of actual court rooms and magistrates to hear matters. ere is only one local court in Camden. It’s tiny and the police station next to it is no longer operating. ere’s one sheri , no security guard and no security gates. People just stand around outside on the grass waiting for their matter to be heard. In March alone, there were more than 100 matters listed at Camden local court. In the one court room. courts in the southern NSW area – Parramatta, Wollongong and Sydney. But a lot of the lings come from the Macarthur region. It takes more than an hour to get to the Sydney family court from Macarthur and many people simply can’t a ord that travel. If they are taking public transport for a domestic violence matter, often the victim will be catching the same train as the defendant. We know that the population in Macarthur is about to double in size – from 500,000 people to more than one million. e Greater Sydney Commission has done a lot of planning for increased health and education services, but there has been no planning for our justice infrastructure, which is already overburdened. If I could pitch one thing to the NSW government it would be to build a new court complex in Macarthur – that could include a family court, a local court and district court. Most pressing issue you see in family law? e critical issue we have is that there are only three family What do you hope to achieve in the final year of your Presidency?
Brett McGrath is a senior associate at Marsdens Law Group in southwestern Sydney and has been President of the Macarthur Law Society since September 2014. McGrath has celebrated plenty of wins during his four-year tenure as President, including successfully calling for the legalisation of same-sex marriage and introducing therapy dogs to Campbelltown courthouse. In his (negligible) spare time, McGrath teaches family law at the University of Western Sydney and is becoming a familiar face in local papers, advocating for improving access to justice in the Macarthur region. He speaks to KATE ALLMAN .
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BY LINDEN BARNES, ETHICS SOLICITOR
Q: Our firm has a solid website and sta have been asked to get more active on social media to promote the work we do. What are the ethical considerations solicitors should take into account? I don’t want to seem like a self promoter. A: e most important ethical point to remember is that the rules are the same. What social media can do is make the risks much greater. Here are some examples.
spontaneous comments. But a comment about a day in court can reveal if a matter is going well or not. A location revealed can show where we are, or where a client is. Celebrities have apparently been tracked via their devices to the o ces of family law experts. 2. Comment on current proceedings (rule 28) e old casenote that a law practice published at the end of a matter has been overtaken by the need to comment online immediately. Yet it is still essential that we comply with the sub judice rule. Could that comment online in the
middle of a hearing, which showcases just how up-to-date we are with the law, also be prejudicing a fair trial? 3. Courtesy (rule 4) e speed which social media demands also leads to informality. Yet we must always be courteous. I doubt many of us would start a blog with the words “Dear Sirs” (please see the debate in previous letters pages on that phrase). But using all the abbreviations and emojis that now proliferate on social media may lead to misunderstandings and discourtesies that didn’t occur in the old typing-pool world.
1. Confidentiality (rule 9) Social media encourages brief,
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ISSUE 46 I JULY 2018 I LSJ 15
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
Megan Cant Joined as Senior Associate, Workplace Relations & Safety Holding Redlich, Sydney
Gemma Rope Joined as Associate Lawyer Bryant McKinnon Lawyers
Morgan Lane Joined as a Partner, Commercial & Corporate Logie-Smith Lanyon
Paul Jurdeczka Joined as Partner Chambers Russell Lawyers, Sydney
Patrick St John Established new business SP Search & Consulting
Alan Blumberg Appointed as Principal Blumberg Family Lawyers
Catherine (Katy) Jenkins Joined as a Senior Associate, Family Law Cominos Family Lawyers
Georgia Lennon Joined as Family Law Solicitor Southern Waters Legal
Janine Demetriou Joined as a Wills and Estates Lawyer Cominos Family Lawyers
Simon Kumar Promoted to Associate, Employment Law Marsdens Law Group
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Janette Siu Appointed as an Associate Herro Solicitors
LAWASIA Cambodia to host 31st LAWASIA conference The 31st LAWASIA Conference will take place in Siem Reap, Cambodia, from 2-5 November 2018 and will represent one of the “most significant conferences held in recent years focussing on the rule of law in South East Asia”, says LAWASIA Secretary-General and Law Society CEOMichael Tidball. With the theme “A New Era for South East Asia”, the four-day conference is the highlight of the LAWASIA calendar and draws solicitors, barristers, judges and academics from across the globe. “ e pace of development in the region, political developments, emerging dynamics with trade, and new approaches to dispute resolution, foreign direct investment, environmental law, and cross-border transactions present the conference with a diverse and vast agenda,” says Tidball. “LAWASIA’s compelling charter places the rule of law and human rights as the beacons through which fundamentals of leadership by the profession are rmed and progressed over time. e Siem Reap conference will rea rm the place of human rights and the rule of law, and will also cover topics that recognise the Asia Paci c region faces a new era of vast expansion in commerce and trade.” Discussion topics include judicial practice, legal education, cross-border business and investment law, and cross-border dispute resolution. For more information and to register, visit siemreap2018.com
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ELDER ABUSE ‘It’s everyone’s issue’: Attorney-General launches national organisation to combat elder abuse
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It’s a growing social epidemic that will a ect almost one in 10 Australians over the age of 60. Elder abuse has long been a concern for lawyers and the legal community, but it was cemented as an issue of national urgency in June, when Commonwealth Attorney-General Christian Porter launched Australia’s rst multidisciplinary organisation to combat it. “Tackling elder abuse is everyone’s issue,” Porter said to a packed room of media, lawyers and government o cials at the launch of Elder Abuse Action Australia (EAAA) in Sydney on 14 June. “In 2056, 22 per cent of Australia’s population – or 8.7 million people – will be over the age of 65. is is not just a problem facing the legal community. It’s a problem for social workers, education providers, healthcare providers, community organisations, and families.” e Turnbull Government contributed $500,000 to establish the EAAA as part of its $3.7 million commitment announced in the Federal Budget to combat elder abuse. Porter said the new EAAA body would o er Australia’s rst dedicated service for elderly Australians to report serious crimes of fraud, theft and even physical violence. “ e Bureau of Statistics estimates that 1.3 per cent of the population over 65 have experienced physical violence,” said Porter. “More than 55 per cent of those violent attacks are carried out by family members. e vast majority go unreported.” Porter said it was increasingly common to see adult children using deception and threats to wrangle nancial control from their parents. “It is critical we tackle these issues of nancial abuse, physical violence and ageism head on,” he said. Federal Attorney-General Christian Porter (middle) at the opening of Elder Abuse Action Australia.
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ISSUE 46 I JULY 2018 I LSJ 17
YOUNG LAWYERS Partnership no longer the end game for millennial lawyers
BY KATE ALLMAN
“We were pleasantly surprised to see that the difference in experience and responses between genders was marginal,” said Aldous. “From trainee to partner level and among both men and women alike there is a similar shift in motivations, aspirations and concerns around careers – work/ life balance being the resounding example of this.” Manager of NSW Young Lawyers Victoria Graves said graduate lawyers should be encouraged by the many career opportunities that a law degree now offered, which could accommodate more flexibility and work/life balance than traditional partnership models allowed. “A law degree doesn’t just give you a ticket to becoming a lawyer in a firm – it equips you with a transferable skill set that makes you strategic, problem-solving, analytical and able to digest large amounts of information,” said Graves. “Those skills are demanded in a diverse range of careers. Lawyers need to shift their mindset to think beyond the linear career path in a law firm. Choosing a career other than law should not be seen as a failure.” Samuel Murray, an active member of NSW Young Lawyers and a graduate lawyer at Corrs Chambers Westgarth, agreed. “It is important to approach the changing face of the profession in a more holistic and nuanced way, rather than seeing it as a binary between ‘conventional’ and ‘unconventional’ legal careers,” Murray said. The report noted that, while increasing numbers of lawyers were stepping into legal consulting careers through platforms like Peerpoint, peers and colleagues were still an integral part of a happy legal career. Just 8 per cent of the survey respondents were willing to compromise on working with those whose company they enjoyed in order to achieve career success. Most (64 per cent) lawyers said working in a team with intelligent and interesting people was the aspect of their profession they enjoyed most. Just over a third (36 per cent) identified financial reward.
Just one in five young lawyers are attracted to the idea of making partner at a law firm, according to new data from an international survey of more than 1,000 lawyers and law students in the UK and Asia Pacific. The ground-breaking research was commissioned by multinational firm Allen & Overy and conducted by the firm’s global consulting platform for lawyers, Peerpoint. The results were published in May in a report titled “The Future of Legal Talent” and revealed some startling differences between the career aspirations of modern lawyers and their counterparts from previous generations. Forty-six per cent of the lawyers surveyed said that although it would be nice to make partner, it was not the most important thing to them in their career. Eighty-one per cent of lawyers believed many young lawyers entering the profession would feel that undertaking the path to partnership was not worth the sacrifice to their work/life balance. “The fact is that for many reasons young lawyers don’t always see law as a career for life anymore,” said Carolyn Aldous, Managing Director of Peerpoint Asia Pacific. “Conventional career paths are not as appealing, and the results show that satisfaction levels for young lawyers drop significantly between one to five years into their legal career. Eighty-three per cent of our sample believe lawyers starting out today will have a very different experience to one who started five to 10 years ago.” The report found that achieving a fulfilling work/life balance was now “the single most important criterion” for lawyers in defining career success. Almost all respondents said they would be prepared to sacrifice a degree of seniority and income in order to control their work and career and achieve balance. This was equally the case for men and women.
Conventional career paths are not as appealing, and the results show that satisfaction levels for young lawyers drop significantly between one to
five years into their legal career.
18 LSJ I ISSUE 46 I JULY 2018
“ e NSW Government will remove legal barriers that have stopped survivors of child abuse from seeking the justice they deserve,” Speakman said. “ e Royal Commission found many survivors felt let down by the current civil litigation system, which made it di cult for them to seek damages and hold institutions to account. “ ese reforms will provide access to new avenues to allow survivors to pursue compensation, so they can focus on recovering and moving forward with their lives.” e changes include legislation to prevent institutions relying on the so- called “Ellis Defence”, which enabled certain institutions operating with associated trusts to avoid liability for child abuse. Courts will have power to appoint trustees to be sued if those institutions fail to nominate an entity with assets as a proper defendant and
allow the assets of the trust to be used to satisfy the claim. e legislation will also codify and extend the vicarious liability of institutions for employees so that employees will be liable for non- employees like volunteers or religious o cers who have taken advantage of their position to carry out abuse. e onus of proof to displace liability will be placed on the institution to prove it took reasonable precautions to prevent the abuse. NSW is the rst state to pass laws enabling the National Redress Scheme and to introduce a comprehensive criminal justice response to the Royal Commission. Speakman promised that the NSW Government would continue to lead the way in supporting survivors of institutional child sex abuse, and that the announced civil litigation reforms will be introduced before the end of 2018.
ROYAL COMMISSION Better access to justice for child abuse survivors The NSW Government has announced it will overhaul civil litigation laws to enable thousands of survivors to sue institutions responsible for child abuse. Attorney-General Mark Speakman said NSW will implement recommendations of the Royal Commission’s Redress and Civil Litigation Report, which was released in September 2015. e changes will allow survivors to sue against organisations including churches, which could not previously be sued for historic and current claims of child abuse.
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ISSUE 46 I JULY 2018 I LSJ 19
DEFAMATION LAW Defamation laws receive Facebook-era reboot
For the full round-up of Law Society advocacy, see page 68.
The NSWGovernment has tabled a report in State Parliament recommending a long-overdue overhaul of uniform defamation laws, more than six years after it was originally due to be released. e last comprehensive national review of defamation laws was undertaken in 1979. e current review of legislation, announced by Attorney-General Mark Speakman in June, was statutorily required to be carried out in NSW “as soon as possible” after the fth anniversary of the Defamation Act in 2011. “ ere’s been a huge rise in defamation cases involving publications on social media sites in recent years, which is why we need the laws to be more tech-savvy,” said Speakman. e new legislation is expected to speci cally address cases of social media and online defamation, which have increased dramatically over recent years. A study published in March of Australian defamation cases between 2013-2017 by the University of Technology, Sydney found 51.3 per cent of the 189 cases involved digital publications such as tweets, emails, Facebook posts and news websites. STATE BUDGET State Budget promises $1.2 billion for legal sector
Inquiry into adequacy and scope of special care o ences The Criminal Law Committee contributed to a submission to a Parliamentary Inquiry into the adequacy and scope of special care o ences. e purpose of a special care o ence is to impose restraint upon a person who is in a position of power arising from a special care relationship. e o ence under section 73 of the Crimes Act 1900 provides an exception to the age of consent. e Law Society submitted that, while it may be professionally unethical for people in a position of care to engage in sexual activity with a person under their care, it is a much bigger step for that conduct to be made criminal where there is no abuse of their position . Gift card expiry dates The Business LawCommittee contributed to a submission to NSW Treasury responding to a Regulatory Impact Statement which examined options to reform gift card expiry dates to achieve a uniform national approach for all types of gift cards, regardless of their delivery mechanism. e Law Society supported a three-year mandatory minimum expiry period, which allows consumers to enjoy the bene ts of certainty and longer minimum expiry periods and also allows businesses to write o gift card liability at a certain period of time. It also considered that a ban on the use of post- purchase fees should be part of the nal policy design for a three-year minimum expiry date. ALRC Family LawReview The Family Law and Indigenous Issues Committees contributed to a Law Society submission to the Australian Law Reform Commission’s Issues Paper. e Law Society had also liaised with the Law Council’s Family Law Section on its submission, noting areas where the Law Society supported, supported with amendments, or di ered from the Law Council’s position.
The NSWGovernment has promised to spend $1.2 billion over four years on courts and community legal assistance in the 2018 State Budget. After the Budget was released on 19 June, Attorney-General Mark Speakman promised that $10 million of that total would be allocated as additional funding to the Legal Aid Commission, to help clear the District Court backlog and minimise court delays. His announcement followed numerous calls from the Law Society and Bar Association to throw legal aid and community legal centres a funding lifeline as federal assistance has plummeted in recent Budgets. “Nearly three million people in NSW experience a legal problem every year. e NSW Government’s investment will make it easier for people and businesses to resolve legal issues quickly, saving time, money and stress,” said Speakman.
20 LSJ I ISSUE 46 I JULY 2018
Cross-examination Test your legal knowledge ...
1. In what year were NSW defamation laws most recently updated? 2. Who is the President of the Australian Human Rights Commission? 3. Actress Rebel Wilson recently had her $4.5 million defamation payout from magazine publisher Bauer Media slashed by Victoria’s Court of Appeal. What will she now be paid? 4. NSW recently enacted legislation establishing safe-access zones around abortion clinics. How far from abortion clinics do the zones extend? an internet search engine for defamation over search results that link him to the criminal underworld. Which search engine is it? 7. What is the average number of Court, according to the most recent BOCSAR statistics (to the nearest 50 days)? 8. NSW is the first state in the country to pass laws enabling the National Redress Scheme for child abuse survivors in response to the Royal Commission into Institutional Responses to Child Sexual Abuse. True or False? 9. The Commonwealth Bank of Australia has just settled with AUSTRAC over anti-money laundering allegations. How much was the penalty? 10. Property values across the country (led by Sydney and Melbourne) are cooling and recorded their first annual decline – down 0.3 per cent – for the first time in how many years? days between committal for trial and finalisation in the NSW District 5. What is the maximum fine for the first oence of a person who protests abortions within the safe- access zone? 6. A Melbourne man is suing
Sydney biohacker Meow-Ludo Disco Gamma Meow-Meow, who in March was fined for implanting an Opal Card chip into his hand, has had his conviction overturned. Meow-Meow, 33, pleaded guilty to using public
Answers on page 65
ISSUE 46 I JULY 2018 I LSJ 21
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