LSJ July 2019
Lawand politics: a love a air Why so many lawyers are tailor-made for successful political careers An insidious epidemic The shocking findings of a new report on the true cost of family violence A climate ripe for litigation How a tiny community is making legal history by fighting for its very existence EvenQueensland is doing it As our northern neighbour enshrines human rights, is it time we caught up?
ISSUE 57 JULY 2019
Ahidden hazard Why the legal profession can no longer run from the reality of bullying
PLUS: UPDATES ON PRIVILEGE, EMPLOYMENT, COMPLIANCE, TAX, ESTATES & MORE
3 September | Four Seasons Hotel Sydney lawsociety.com.au/GovSol2019 CONFERENCE SOLICITORS GOVERNMENT 9–10 August | ICC Sydney lawsociety.com.au/SpecAcc2019 CONFERENCE ACCREDITATION SPECIALIST
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24 Hot topic
36 From law to politics
A group of Torres Strait Islanders is taking the Australian Government to court over its inaction on climate change
Thinking of a career change? Kirrily Schwarz asks some of Australia’s most prominent politicians what it takes
Cara Ghassemian balances her work as a lawyer with a side hustle in Moroccan tourism
26 Lunchwith a lawyer
40 Domestic violence
An emerging body of research reveals loneliness is a bigger threat to health than smoking or being overweight
Claire Chaey meets innovator and legal tech expert David Bushby over a plate of good ol’ fish and chips
Amy Dale investigates the wide range of legal problems that victims of domestic and family violence face
28 Cover story
Ute Junker discovers how to trek without the icky bits on a luxury guided hike through the Himalayas
Is bullying the biggest workplace hazard for lawyers? Kate Allman exposes the extent of the problem in this exclusive story
Body language expert Michael Kelly has seven public speaking tips for lawyers to command the boardroom
ISSUE 57 I JULY 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 28 Out and about 44 Career matters 46 Mindset 48 Doing business 49 Career coach 54 Fitness 60 Youwish 62 Books 64 The case that changedme
80 Compliance risks
The latest key developments in advocacy and law reform
Tips to avoid common conflict of interest conundrums
69 Human rights
82 Driving laws
Has the time come for NSW to revisit the question of whether to adopt a human rights act?
A closer look at NSW’s new drink driving laws 84 Wills and estates Estate planning and
superannuation death benefits
What you didn’t know about the landmark Rocky Hill judgment
86 Practice and procedure Tips on using the Online Court in the District Court 88 High Court
74 Employment law
Procedure is a servant, not the king – approval of enterprise agreements gets a little bit easier
High Court gives the green light to controversial ‘book-up’ system
76 Employment law
An in-depth look at t he privacy implications of collecting employees’ biometric data
Advising on the purchase of land? Beware the sting of GST withholding
91 Case notes
Privilege pitfalls – beware of implied waiver in email chains
A wrap-up and analysis of the latest HCA, FCA, Family, criminal and Wills & Estates judgments
94 Library additions 106 Avid for scandal
4 LSJ I ISSUE 57 I JULY 2019
YOUNG PROFESSIONALS CHARI T Y BALL 2019
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A word from the editor
ree weeks ago, I learned how to meditate. As my partner and I settled into the intimate course run in a townhouse in Paddington to learn the art of Vedic Meditation and hopefully soak up the wisdom of a practice that has been around for thousands of years, our teacher, Tim, asked a very telling question: “Are there any lawyers in the room?” Glancing around, I sheepishly raised my hand. “I am a kind-
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Art Director Andy Raubinger Graphic Designer Alys Martin Publications Project Lead 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
of lawyer,” I said. “Why do you ask?” “Oh, because there is always a lawyer,” he replied.
I found this observation interesting, yet not surprising. It is likely no coincidence that so many of Tim’s clients are from the legal profession. Meditation, after all, is increasingly sought out as a way to control stress, to quiet the constant chatter in our minds, and to shield ourselves from the onslaught of technology and the sensory overload of modern life. Lawyers are the perfect candidates for meditation. So, does it actually work? I admit I walked into the course a skeptic – and emerged two days later utterly convinced it holds myriad benefits for my wellbeing. Give it a go – you might just be surprised.
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© 2019 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.
KATE ALLMAN Cover story p30
AMY DALE Family violence p40 Amy is a former court reporter, journalist and published true crime author. She now works in the government sector, specialising in media relations and social policy. She writes about a new report on the impact of family violence.
MARIA NAWAZ Human Rights p69
ATHENA KOELMEYER Employment law p76 Athena is Principal and Managing Director of Workplace Law. She discusses the recent Fair Work Commission case which considered the privacy implications of collecting employees’ biometric information.
27,100 * *AUDITED MARCH 2019 DISTRIBUTION
Kate has degrees in law and journalism from UNSW, hosts the O the Record podcast, and is Online Editor at LSJ . In this issue, she exposes the hidden workplace hazard of bullying and its shocking prevalence in the legal profession.
Maria is Law Reform and Policy Solicitor at Kingsford Legal Centre. She takes a closer look at whether the time has come for New South Wales to adopt a human rights act – and what such a law might look like.
Lawandpolitics:a lovea air Why somany lawyersare tailor-made for successfulpoliticalcareers An insidiousepidemic The shockingfindingsofanew report on the truecostof family violence Aclimateripefor litigation Howa tinycommunity ismaking legal historybyfighting for its veryexistence EvenQueensland isdoing it Asournorthernneighbourenshrines human rights, is it timewecaughtup?
ISSUE57 JULY 2019
Ahidden hazard Why the legalprofessioncanno longerrun from therealityofbullying
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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6 LSJ I ISSUE 57 I JULY 2019
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I t’s hard to believe we are already halfway through the year and I have reached the half- way point of my term as President for 2019. It’s been an incredibly busy six months – more so with elections being held at both a state and federal level. Elections do have that unfortu- nate side-effect of slowing down legislative de- bate and the passing of new or amended laws, and in some cases halting them altogether. is has certainly been the case with Australia’s version of what has be- come known globally as the Magnitsky Acts – laws designed to allow governments to target individuals and companies for grave human rights violations or corruption rather than nation states, often in circum- stances where the rule of law has failed. e laws have a rather disturbing genesis in that they are named after Sergei Magnitsky, a Russian law- yer who was tortured and killed in a Moscow prison in 2009 after he uncovered a web of corruption allegedly
involving Russian officials at the most senior levels of government. e first Magnitsky Act was passed in the US during the Obama presidency in 2012 and was specifically aimed at Russians who engaged in serious human rights violations and corruption. In recent times the UK, Canada and three Baltic states have passed their own versions of the human rights act, and in March this year the European Parliament passed a resolu- tion calling for an EU Magnitsky Act. In December last year, Victorian Labor MP Michael Danby introduced the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018 into the Federal House of Representatives. However, the Bill lapsed at the dissolution of the Parliament prior to the 2019 Federal Election. In force, the global law strengthens the hand of the executive of the legislating country and creates serious legal risk for businesses that unknowingly deal with a blacklisted entity. Its legal foundation is also troubling: in 2017, US President Donald Trump announced that human rights abuses and corruption in foreign nations constituted a “national emergency” to justify extending the Act’s reach. As you can imagine, this all sets the scene for what will be a fascinating discussion at our next ought Leadership event at the Law Society on 5 August, titled “A Magnitsky Act for Australia – Human Rights Bombshell or Frankenstein’s Monster?” I encourage members of the profession with an interest in Australia’s role as a champion of global human rights and anti-corruption to attend. More details can be found on the Law Society website. On another subject, I was honoured to attend a one-day symposium at Sydney’s Powerhouse Museum re- cently on the making of the Uluru Statement from the Heart, the lessons that can be learnt from this achieve- ment, and what processes need to be considered to seek First Nations consensus in treaty-making processes. e event was a partnership between the Law Society, the Bar Association, and the Judicial Commission of NSW (as part of its Ngara Yura Program), aimed at creating a conversation between judicial officers, lawyers, and Aboriginal community members. It raised some important issues about the journey to enshrining con- stitutional recognition for Aboriginal people, reinforcing just how crucial public dialogue will be in elevating the voices of Indigenous people and giving this process the public legitimacy it deserves.
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For more information visit: www.tlc.asn.au MCLE seminars in March 2020 Family Law Saturday 7 March Criminal Law Saturday 14 March Employment Law Friday 20 March Legal Search Workshop Saturday 21 March Tax & Equity Friday 27 March Rule 6.1 Mandatory Components Saturday 28 March Upcoming events in 2019 Advocacy Workshop TWO SATURDAYS 26 October & 2 November 2019 e-Conveyancing & Its Fundamentals: Saturday 9 November 2019 TLC’s 12th Annual Fundraising Dinner Saturday 16 November 2019
THOUGHT LEADERSHIP SERIES
ere are two sides to every story. Get the full picture with our expert panel as they explore the justi cation, impact and troubling origin of the Magnitsky Act and why there’s a signi cant interest for Australia. Register now at lawsociety.com.au/thoughtleadership HUMAN RIGHTS BOMBSHELL OR FRANKENSTEIN’S MONSTER? A MAGNITSKY ACT FOR AUSTRALIA 5 August 2019 | 5pm – 7pm
For more information visit: www.tlc.asn.au
ISSUE 57 I JULY 2019 I LSJ 9
adamant that she wants to be a judge when she’s older (a big change from her previous career aspiration of becoming a crocodile hunter) #newlaw- perks. Alexia Ereboni Yazdani, Hillside Legal Framing the future We would like to thank LSJ for their coverage of the work of The Legal Forecast NSW along- side that of our fellow innovators in the February edition (Cover story, “Meet the Innovators”. Having a small, not-for-profit organisation being represent- ed in legal publications such as LSJ , as well as mainstream media, is truly a testament to the changing attitudes towards the dynamic nature of the legal profession. For many years, the future of the legal industry has been an elusive and intriguing question for students and prac- titioners alike. Today, grassroots organisations like The Legal Forecast and the motivated members that comprise them are answering this question by helping the industry adapt to digital disruption and identify a range of opportunities. The piece gave The Innovators vis- ibility and a voice – something that will encourage others to be bold, put themselves out there, and engage with the issues facing our profession. These eorts drive meaningful conversations that will gradual- ly ensure that legal innovation rises to meet the challenge of innovation in other industries such as financial services and consulting. From our expe- riences working in courts, universities, and law firms large and small, there is evidence that a large portion of legal profes- sionals are reluctant to accept the incoming technological changes to the profession – the routine of practice has become innate to most. On the other, law students and incoming practitioners of today are brought up in an environ- ment where digital fluency is the norm – and with it, a turn towards communication and globalisation. Moreover, they
are highly aware that innovation requires time, and workplaces are most productive when their structures adapt to the needs of people to live balanced lives, and not the other way around. Mentioned in the article alongside The Legal Forecast was Marina Brizar, a young lawyer and advocate of legal reform on an international scale. Her fresh ideas on law reform on the topics of immi- gration and refugees have drawn on policy from other countries, and its potential for incredible legal change is undeniable. This is an exam- ple of how innovation has the capacity to change what we do, how we do it and, ultimately, improve access to justice. The Legal Forecast will con- tinue challenging the way we think about law fundamentally, and what a day working in the legal profession looks like. To have our best and brightest members recognised among such distinguished company validates the work we’ve been doing and inspires us to keep pushing ahead with the next initiative. In future editions we would appreciate seeing more recognition of the vision and work of not-for-profit organi- sations like ours. Daniella Murphy, Macquarie University, NSW; Helen Yija Wang, University of Sydney, NSW and Adam Connolly, lawyer, QLD. On behalf of The Legal Forecast. Staying silent on freedom of speech? I enjoyed reading Jack de Flamingh’s article on freedom of speech in the employment environment (June LSJ ). It seemed particularly relevant in light of the termination of Israel Folau’s employment for quot- ing a religious text. Apparently ideas and their expression can break people’s bones after all, even if they are hypothetical ideas based on a theory many regard as an illusion, and so justify sanction. Jack’s article was limited to employment law issues. It would be nice to see more general input into the
AlleyesonAmerica What theUSopioidepidemicandclass actioncouldmean forAustralia Empoweringthevictims Howa freshapproach to strategic litigation ishelping victimsfind redress Speakuporstaymum? Thecomplicated stateof freedomof speech inemployment relationships Family lawcourts incrisis Whatnow for the system in thewakeof theALRC’s recommendations?
ISSUE56 JUNE 2019
Happy 125th birthday This year, Duy Elliott Lawyers (formerly MJ Duffy & Son) turns 125 years old. There are two Duy boys still practising in the firm, both descendants of the original MJ Duy who commenced practice as a lawyer in 1894. Stephen Duy is a director and Robert Duy is a consultant to the firm (having retired from the partnership a couple of years ago). They are brothers and the fourth gen- eration of Duys to practise law in central western NSW. Stephen has three children, one or more of whom are potential fifth generation lawyers. Peter Duy is the uncle of Robert and Stephen and retired as manag- ing partner and as a solicitor approximately five years ago, although he still calls in for morning tea quite regularly. Peter practised for 50-plus years. The three Duys I know have been extremely generous to many in our community with their time and expertise and are valued and respected solicitors and community members. This kind of milestone is a rare feat. Robert Elliott, Principal, Du y Elliott Lawyers Junior in court I was unable to arrange a babysitter for my daughter this morning, which was frustrating as I had a hearing. My husband was also in a hearing and so I had no other option but to take her along with me to court. On the way, I explained how a courtroom works. I told her where everyone sits and emphasised the importance of having to remain really quiet inside. My little girl sat there as I presented my client’s case. Not a peep from her. She even stood and bowed as the Mag- istrate entered and again on leaving. A very excited client who had her matter dealt with pursuant to section 10, and a very excited four year old who was so glad she got to see what mummy does for work and who is now
Takingonthetragedy Why lawfirmsmustbealive to thedangersofvicarious trauma
PLUS: UPDATESONARBITRATION, IP,EMPLOYMENT,PROPERTY,RISK&MORE
LSJ06_Cover June.indd 1
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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.
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debate from the Law Society into the very real issues posed around individual freedom by the pell-mell rush to satisfy the veneration of a particular notion of equality that in its operation appears to exclude some. For instance, conser- vative religious believers, such as Folau. Perhaps our rush to pin on the likes of Folau the broader communities’ his- torically prejudicial attitudes to the marginalised, includ- ing the LGBTI community, is primarily driven by a desire to find a convenient scapegoat for past wrongs and thus escape their censure. It is no surprise that humanity spe- cialises in producing groups on the margin. A centre and a margin appear socially inev- itable. I can verify this from my office in the suburbs, far from the CBD. Perhaps it is a fundamental human trait if the lessons of populism are anything to go by. It appears society would rather reduce down the entire history of cultural and social hostility to the LBGTI community through the ages, and deposit it entirely onto the shoulders of one specific group in the present, a convenient sin- gularity of blame as it were, and conveniently disown the entirety of it. It was someone else, I was not there, I did not do it, it has nothing to do with me. Case closed. However, arguably all aspects of a society belong to it, and the conservative ele- ments of Australia’s history are simply a factual component of the fabric of the present. But not if we can say it was the Folaus of the world who did it. We can pretend that back in the day, for me the 70s and 80s as my area of responsibility (but swap out for whatever era you own), we were all so progressive, and loved everyone equally, espe- cially all the gays we knew. We voted for same-sex marriage because of our progressive tendencies and gee, because we are just great. This does,
however, appear an artificial way of viewing the world. It is a narrative that is only attractive insofar as it serves the purpose of achieving some form of social catharsis, while surreptitiously deposit- ing the guilt for past wrongs upon someone else. From the point of view of honesty it is somewhat lacking in my view. Regardless of the minutiae of employment law, the issue of whether individuals should be permitted to carry in their heads an idea, and express it, is surely fundamental to the question of whether or not an individual or indeed a society is truly free. Media reports state that the various Australian worker’s unions have decried the Folau situ- ation, correctly recognising that this kind of draconian authority over the individual has an amazing ability to cascade down from on high, oozing into the areas of great- est weakness, generally at the whim of the powerful. Other interest groups have had a say about the situation. What to me is disturbing is the thought that the NSW Law Society may not have anything obvious to say about this particular issue notwithstanding its apparent import. The man Folau and his conservative religious views are certainly unpopular. But for a person to be excluded without apparent comment or opposition from any form of viable employment in their chosen field based upon the expression of a religious belief held is concerning to me at least. I could not imagine I was alone in this view. I would regard it as little different to the situation of a person of no religious views, who upon announcing proudly (some might say brazenly) their lack of religious belief to the world, was immediately and publically denounced and thereafter deprived of all future employment by a reli- giously-minded majority. Or even just a religiously-minded employer. Such a position would presumably be regard-
ed as intolerable, as it would represent a return to a society we would all assumed was long left behind in a pluralist Australia. And if the basis of this sanction is a concept of offence, it is a short few steps to finding offence not only with the expression of the doctrine, but with the religious doctrine itself, and those who practise the tenets of the religious faith. After all, Christian beliefs are held and expressed widely within the community, not only by Israel Folau. My 89-year-old mother would be one such person. Daily, weekly, groups of religious believers meet to discuss and teach each other about their religious doctrines. Many of them are exclusive in many respects, and on that basis contain inherent in their exclusivity the seeds of potential offence of the excluded. On the basis of offence, perhaps they too should be sanctioned. Why not just outlaw them altogether? The basis of the argument would be the same. Such and such a group finds it offensive. The level of offence is very high, it has reached this amount of social media markers of disapproval. We must act to save the world from this evil. An ideologue hostile to religious belief is no different in my view to a religious ideologue. The question is whether we, members of the NSW Law Society, are happy to coun- tenance without question the return of an environment dominated by ideologues. If there is to be any seismic shift in the freedom of an individ- ual to hold and express any view, religious or otherwise, it would be entirely wrong that it should be left to a media-driven mob to bring it about. Such a change should be made by the parliament, as the best representative of the people, based on considered discourse as best as that is possible in a media landscape that favours framing issues
in binary terms and without regard to such irrelevancies as nuance, context, or com- plexity. And it is in raising these issues and promoting discourse about them that the Law Society surely has a role to play. Tom Adams, Solicitor Colour blind Now that it seems, at long last, the profession has rec- ognised that ability has no gender, surely it’s now time to accept that “achievement has no colour”, to quote Abraham Lincoln. Edward Loong, Lawyer What next for vicarious trauma? As a person who has been diagnosed as suffering from vicarious trauma in the last few months, I was excited to see your cover story in the June edition (“Taking on the trauma”). Unfortunately, I was left wanting more from the article. The article identified some of the signs and symp- toms but I was left wanting about what a vicarious trauma program would look like in a law firm. Your article also only touched on who a likely group of suffers would be. Certainly criminal law and family law practitioners are at high risk of suffering from this, but the likely age group is probably those of us who have been in the practice of the law for some time who have soaked up so much in our careers that our “cup” is now full – and less likely the newly admitted younger members. None of us are superheroes, although we at times believe we are and possibly we should all just take the time to go to all the members of our firm every day and, when we say hello, ask, “Are you okay today?” You might be surprised by the answer. Alison M Howarth
ISSUE 57 I JULY 2019 I LSJ 11
“Game on! How many NSW players does it take to win 8 series in a row? Nobody knows.” – Queensland Law Society, Facebook “Go the Blues!” – Ben Gillies, Facebook “Good luck President Espinosa! Go the Blues!” – Adeline Schiralli, Facebook “We bleed blue.” – Shailja Gos
“A family violence survivor never comes to our community legal centre for just one legal issue. There are always at least three issues, often more and many over a period of years. Sadly the govts still struggle with the complexity of issues and the need for higher funding.” @FreoLou, Twitter “These statistics raise serious concerns. It encouraging to note that In May, Speakman announced $40 million in funding for the state’s community legal sector over the next three years.” Anne O’Donoghue, Twitter “Unpaid #dv leave is a start, but paid leave and greater employer aware- ness of this as an workplace issue is critical. We need whole community responses and support for joined up legal and non-legal services. Great research @NSWLawFound and reporting @KateAllman_” Susan Price, Twitter “Important study setting the complexities facing victims of domestic violence. The load must be lightened.” Larissa Andelman, Twitter
“I’m very clear that bullying is one of a number of possibly contributing factors to a person’s burnout. The burnout ‘cocktail’ I have seen over decades ... is dierent for each person. One may have zero bullying yet for another – bullying may be a significant element. Sounds like a great event topic.” Sophia Hutton-Taylor, Facebook
“A topic that definitely needs to be talked about more!” Jimmy Pan, LinkedIn “Now that is a topic!!!” – Greg Brenner, LinkedIn “Fantastic to see this vital topic being addressed.” Megan Edwards, LinkedIn
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“As would my master solicitor when I’d get unhappy about others outright stealing my carefully drafted precedents.” – Andrew McCormack, Twitter
Master your career. Postgraduate Applied Law Programs with practical learning you can immediately apply to your work. Intake 3 commences 19 August 2019
Choose from 11 areas of law specialisation streams
Enrol at collaw.edu.au/ALP or call 1300 506 402
ISSUE 57 I JULY 2019 I LSJ 13
Huge line-up announced for the 2019 FLIPConference
BY KATE ALLMAN
Legal visionaries George Beaton and Richard Susskind will headline a star- studded line-up of speakers at the Law Society of NSW’s annual conference on the Future of Law and Innovation in the Profession (FLIP) in Sydney in July. ese innovation experts will sit alongside stalwarts of the Australian legal system such as former High Court Justice Michael Kirby and Judge of the Federal Court of Australia Melissa Perry. It’s an interesting juxtaposition that looks set to pair discussions around auto- mation, coding and de-centralisation of legal work with pillars of tradition and justice – reflecting a key FLIP theme that innovation need not come at the price of sacrificing the rule of law. “ e legal profession is in the middle of what is being referred to the next indus- trial revolution,” said President of the Law Society of NSW Elizabeth Espinosa. “As the use of legal technology picks up pace, it is important that solicitors understand and anticipate how technology will affect the way they practise law and, in turn, under- stand how their clients use technology.” George Beaton will lead a conference session on this very issue – discussing innovation from clients’ perspectives in a panel session titled “Keeping up with the changing choices of clients”. Beaton lends his experience as the head of global consulting powerhouse Beaton Research + Consulting, and as the author of two books that offered revolutionary predic- tions for the future of law when they were first published – NewLaw New Rules in 2013 and Remaking Law Firms in 2016. Richard Susskind, a British professor who became globally renowned after publishing his landmark e Future of the Professions in 2015, will join the con- ference via video link to speak on how lawyers can prepare their business mind-
caption goes here
The legal profession is in the middle of what is being referred to the next industrial revolution. LAW SOCIETY OF NSW PRESIDENT ELIZABETH ESPINOSA
sets for the future. A new addition to the program for 2019 will be an exciting interactive display called “Today and Tomorrow Alley”. is walk-through display will showcase some of the most exciting technology products forecast to make lawyers’ work easier in coming years. Participants will put on headphones and be able to see, hear and experience predictions for life as a lawyer in the decades up to 2050. “ e thought-provoking program will give delegates the tools to survive and thrive in an ever-changing legal land- scape,” said Espinosa. “And importantly, practitioners can earn up to 17 CPD points – seven points for attending the conference and another 10 more by listening to podcasts of any ses- sions that they didn’t attend on the day. All podcasts are included in the ticket price.” Canadian professor Mitch Kowalski,
previously featured in the June news pages of LSJ , will open the conference with his keynote speech on “Lawyering in 2050: Robots in Suits or Just a Slightly Better Version of 2019?” Despite big names headlining the con- ference program, smaller legal start-ups will also get their chance to shine at the “Emerg- ing Technology Lounge”. is lounge will provide a stage for technology-focused legal start-ups that are less than five years old and not publicly listed to pitch their ideas for new legal technologies. Speakers will be vying for audience votes to earn a prize for the most successful pitch. e day will conclude with an “Inno- vation Dinner” and networking drinks reception at the Hilton Sydney from 5.30pm.
To view the program and register head to ipconference.com.au
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Legal Aid NSW Criminal Law
Conference 2019 e Legal Aid NSW Criminal Law Conference will be held be- tween 31 July and 2 August at Doltone House, Pyrmont. is is the premier professional develop- ment event for criminal lawyers in NSW. Register via eventbrite.com. au/e/61850276843 or Google “NSW Criminal Law Conference”. Comedy debate for a cause e NSW Young Lawyers Work- place and Safety Law Committee’s comedy debate will be held on 18 July at Baker McKenzie. is is a no-holds-barred duel between le- gal eagles, pitting wit against wit to determine who reigns supreme in the area of workplace relations (or who gets the cheapest laughs). Proceeds support the NSW Young Lawyers’ charity for 2019, the Public Interest Advocacy Centre. lawsociety.com.au/events Associate member event: future-proof your career Technological advances, economic pressure, globalisation and client expectations are impacting how law- yers deliver services. Join us at the Law Society of NSW on 2 July as an expert panel including Law Society President Elizabeth Espinosa and UNSW Law Professor Michael Legg unpack the legal career path of today and how it is expected to change in the future. More information and register at lawsociety.com/events
Richard Susskind AUTHOR, SPEAKER, ACADEMIC AND ADVISOR TO PROFESSIONAL SERVICES FIRMS
If we leave it to professionals themselves to reinvent their workplaces, are we asking the rabbits to guard the le uce?
ISSUE 57 I JULY 2019 I LSJ 15
Mitch Wallis is a social entrepreneur and founder of the viral online mental health movement Heart on My Sleeve. After graduating with a commerce degree, Wallis joined the technology industry for seven years before opening up on social media about his struggles with mental ill-health. Having struggled with severe and debilitating mental illness symptoms for most of his life, Wallis is a refreshing voice for change in the way we talk about mental health. He speaks to CLAIRE CHAFFEY in the lead-up to his appearance at the 2019 FLIP Conference in Sydney in July.
sixminuteswith MITCH WALLIS
Lawyers are particularly bad at opening up about mental health. How can the profession tackle stigma and encourage openness? Lawyers are like the trauma surgeons of the corporate world. Tons of pressure, tons of stress. at attracts a certain type. at type is often incongruent with vulnerability. However, if we want to make a change for others we have to lead by example. e only way we will make any progress toward people believing they are truly able to be real or bring their full self to work (or anywhere, for that matter) is if they see people walking the walk. We can talk about it being okay until the cows come home, but until people are willing to be vulnerable we won’t get anywhere. e priority is leadership. Leaders need to show people it’s okay to be human, and that the employee is valued in their totality, not just the parts they choose to show the world. Some would say you’re incredibly brave to start this movement. Would you agree? It shouldn’t be brave, it should just be. What’s brave is the hundreds of people who have told their story alongside me. I was the first one in this particular movement, but I certainly won’t be the last. In fact, true vulnerability in the presence of people you care about is scarier than public vulnerability. Showing someone your wounds or insecurities in a one-on-one setting is far braver than sharing to 1,000 people on Facebook. Shout out to all those who courageously open up, conversation by conversation, despite the fear of judgment.
It’s been two years since HOMS began. What have been the highs and lows you’ve experienced since then? Every day has highs and lows. Start-up life is a grind. Founders are twice as likely to have a mental health condition or thoughts of suicide than the general population. Start-up life in a mental health organisation is a double grind. It’s hard work. You have to drink from a bottomless mimosa of extreme passion every single day in order to survive and thrive. It’s a rollercoaster. at said, it gives back way more than it takes. I have never worked so hard yet felt so fulfilled in my whole life. I wouldn’t change a thing. When you get an inbox message at 9pm on a Tuesday saying your work has saved a life, it’s all worth it. ey are the moments you live for. ey are the moments that make every email, presentation, excel spreadsheet, investor meeting, failure and success worth it. For better or worse, I can’t be anything but authentic. It’s a raw package deal. So that has its pros and cons. Hopefully I will give a very genuine insight into what it’s like to live with mental health issues, and how we can move forward and evolve as a society toward a place of healing. I will speak a lot about corporate mental health practices, and the practical things we can do to make a difference to the way we integrate our personal and professional lives. You’re speaking at the 2019 FLIP conference. What can we expect?
Why is a movement like Heart on My Sleeve important? Mental health is the single biggest issue facing our generation. It’s the global warming of public health. ings aren’t getting better – in fact, they’re getting worse. Heart on My Sleeve (HOMS) is determined to make a positive impact. It has become the go-to platform for giving people a voice online and empowering their story. ere’s a certain realness and authenticity to our approach and community that is cutting through. HOMS is flipping the conversation from RUOK to I’M NOT OK, empowering those going through it to speak up. We can’t just wait to be asked or expect our supporters to be mind-readers. is is validated further with the launch of our service provider arm of the organisation that is offering workshops, training and consulting to organisations and individuals around how to have real conversations in safe ways. I’m excited about our ability to shift the behaviour, not just awareness, of mental health in Australia.
To learn more about Wallis’ work or book tickets to see him at FLIP, visit flipconference.com.au
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BY LINDEN BARNES, SENIOR ETHICS LAWYER
Acting for them could make it worse. We would be failing our obligation under Conduct Rule 4 to “deliver legal services competently”. Would we be able to act with “profes- sional independence”, again as required by Rule 4? As someone recently said to me, acting for a friend means the profes- sional relationship starts on the wrong basis. And we could well end up as a wit- ness. Rule 27 sets out the restrictions on acting when in that position. So, what can we do? We can still help. We could suggest they get advice and
recommend a solicitor who would suit. e Law Society has a referral service – a most useful resource. And maybe giving them the contact details of our support services such as Lifeline for Law- yers, Law Care or the Lawyers Assistance Program. It is important that we are all aware of these support services – we never know when we or a friend might need them. Looking out for our fellow solicitors is a vital part of our profession. Hopefully, we won’t have this situa- tion, but being prepared if we do could make such a difference.
Q: I am very concerned about a friend at work. I know they are going through some dicult times at home, but now they have come in with significant bruises because they “walked into a door”. What can I do? A: Of course you want to support your friend, but it is very important here to think of their best interests before you leap in. It is probably not in their best interests for you to turn into their lawyer. For most of us, we simply don’t have the expertise in this area of law (or the practising certificate).
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Jason Sprague Joined as Partner, Corporate and Commercial Bartier Perry
Karl Maakasa Joined as Special Counsel, Insurance Bartier Perry
MalcolmCampbell Joined as Principal Lawyer, Commercial Advice Coleman Greig
LukeMitchell Joined as Principal Lawyer, Commercial Advice Coleman Greig
Ariane Potter Promoted to Senior Associate Edwards Family Lawyers
Laura Donnelly Formed new family law firm Holmes Donnelly & Co Solicitors
Alicia Elliott Formed new family law firm Holmes Donnelly & Co Solicitors
Duncan Holmes Formed new family law firm Holmes Donnelly & Co Solicitors
TashaWolodko-Kouril Joined as Solicitor, Commercial Litigation Roberts Legal
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INNOVATION IN LAW Hack for innovation
The increase in the number of people held in prisons around Australia between 2014 - 2019 30 %
engineering, design, IT) are being encouraged to register. “If you don’t know about law or engineering, don’t worry. InnovateLaw is beginner friendly. ere will be plenty of mentors to help you out before and during the hacking,” organisers have written on the event website. e event is being run in collaboration with the Legal Forecast and the Supreme Court of NSW and will take place at the Law Society of NSW building in Sydney. Register at innovatelawsyd.com
The Law Society of NSW is on the hunt for creative minds to take part in the #InnovateLaw2019 Hackathon, to be held in Sydney over the weekend of 19 – 21 July. e event will see students team up with experienced professionals to come up with ways to solve a series of legal industry challenges, which will be announced at the hackathon launch party on the evening of Friday 19 July. Practising lawyers, industry professionals, students, and mentors from a variety of backgrounds (law,
Source: Australian Bureau of Statistics, June 2019
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QUEEN’S BIRTHDAY HONOURS Legal luminaries honoured for Queen’s Birthday
professor Nicholas Cowdery, who served for 16 years as NSW Director of Public Prosecutions and achieved several high- profile convictions including of notorious backpacker killer Ivan Milat, received an Officer of the Order of Australia (AO). Former President of the Law Society of NSW John Eades, who served as President in 2015 and is the current President of the Riverina region law sociery, received a Member of the Order of Australia (AM). Some of NSW’s most prominent jurists and lawyers were also honoured, including acting NSW Judge of Appeal Reginald Barrett, former NSW Land and Environment Court and Federal Court Judge Denniss Cowdroy, and Supreme Court Justice Monika Schmidt. For the full list visit gg.gov.au/queens-birthday-2019- honours-list
A former President of the Law Society of NSW, a long-serving NSWDirector of Public Prosecutions, and the President of the Anti-Discrimination Board of NSWwere among the eminent Australians who received Queen’s Birthday Honours on 10 June. President of the Anti-Discrimination Board of NSW Annabelle Bennett SC (pictured) was listed as one of just 12 Australians who received the highest award available – a Companion of the Order of Australia (AC). Bennett, who has had a distinguished career as a Supreme and Federal Court Judge, and now serves as Chancellor of Bond University and a senior barrister in Sydney, was recognised for her “eminent service to the law, and to the judiciary, particularly in the field of intellectual property, to higher education, and to sports arbitration”.
NSW Attorney-General Mark Speakman said he was “thrilled” Bennett received the award. “ e award recognises Dr Bennett’s enormous contribution to intellectual property law and higher education, including as a Judge of the Federal Court of Australia and an additional judge of the Supreme Court of the ACT. Dr Bennett is also leading the NSW Law Reform Commission’s work on modernising the way digital assets, like Facebook or Instagram accounts, are dealt with after death,” Speakman said. UNSW and Sydney University law
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WOMEN IN LAW Year 101: what next forwomen in law?
PROFESSIONAL CONDUCT OLSC urges lawyers to disclose harassment and bullying
In light of recent data released by the International Bar Association, which revealed that up to 38 per cent of lawyers around the world have been bullied at work, the Office of the Legal Services Commissioner (OLSC) NSW has urged lawyers in NSW to disclose instances of harassment and bullying. Legal Services Commissioner John McKenzie said he realised many lawyers would not want to make a formal complaint at first instance, and to start with informal disclosures to help his team form a better understanding of what was happening in the profession. “We have a small team trained to take your call and assist you in whatever way is possible,” said McKenzie in a notice to solicitors in the Law Society’s Monday Briefs newsletter on 17 June. “Our guiding principle is to never cause you further trauma. We need your reports so we can start to plan the end of the impunity that perpetrators currently think they enjoy.” To speak with one of the OLSC team members, call (02) 9377 1840 and tell the inquiry line person you want to talk about a Personal Conduct issue.
others and ultimately, less tolerant,” said Ferguson, who is the Deputy Chair of the Australian Broadcasting Corporation and founded the viral #CelebratingWomen social media movement in 2017. Ferguson moderated an impressive panel that included Justice Sarah Derrington of the Federal Court of Australia, senior barrister Jane Needham, Telstra Executive Justine Rowe, and Managing Partner of McCullough Robertson Kristen Podagiel. Needham, who has juggled a career at the bar and various leadership roles in the profession with family life, highlighted the need for more men to take equal parenting roles. To accommodate this, she said workplaces needed to support and encourage men to take parental leave and work flexibly – because equality in law would ultimately require equality in gender roles and conventions across society. “Men at the bar have on average three children and women have one,” Needham commented. “Fifty per cent of women at the bar have no children – what does that tell us?” Podagiel emphasised the importance of quotas rather than targets for diversity in the profession, “Because what gets measured gets done.” View more photos from the day in Out and About on page 28.
It has been a century and one year since women won the right to practise law in NSW. But as this milestone passed in May 2019, industry leaders reflected that equal opportunities for female lawyers have come at a glacial pace. Figures from the Law Society of NSW’s National Profile of the Profession show women have outnumbered men in the legal profession since 2017, but women still represent only 27 per cent of the partnerships of Australia’s largest law firms, according to data from the 2019 Law Partnership Survey by e Australian Financial Review . e Federal Government’s Workplace Gender Equality Agency reports that the gender pay gap in Australia’s legal industry is approximately 26.2 per cent – which is five per cent higher than the national average across all industries. More than 200 lawyers, barristers, judges and media gathered in Sydney at a lunch hosted by McCullough Robertson on 30 May to highlight the obvious inequality that these numbers reflect. A panel of experts led by author and company director Kirstin Ferguson discussed steps that still need to be taken on the long road to gender equality in the legal profession. “Without actively striving for equality and diversity, the legal profession will always be less than it could be – less understanding of
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DISCRIMINATION Report reveals ‘widespread’ mental health discrimination in travel insurance
per cent of Australia’s travel insurance industry – Allianz, Suncorp and World Nomads Group. “ ese insurers were unable to establish that they could rely on any of the available exceptions under the Equal Opportunity Act to lawfully discriminate,” the VEOHRC said on its website. During the investigation, all three insurers committed to removing blanket mental health exclusions from their policies. Representatives from Sydney’s Public Interest Advocacy Centre (PIAC), who have been campaigning on the issue for PIAC’s ongoing Mental Health and Insurance project, welcomed the change. “ e removal of outdated and discriminatory blanket mental health
exclusion clauses from travel insurance policies is an important step towards fairer treatment of people with past or current mental health conditions by the insurance industry,” said PIAC Senior Solicitor Michelle Cohen. However, Cohen noted that travel insurance was just one segment of the Australian insurance industry – and that many other sectors still discriminated towards people with mental health conditions. “Despite the progress we have seen in travel insurance, discrimination against people with past or current mental health conditions by life insur- ers remains widespread, including in relation to income protection and total and permanent disability products,” said Cohen.
A landmark report by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) has revealed “widespread and far- reaching” discrimination by travel insurers against customers with mental health conditions. e report, Fair-minded cover , was published in June and revealed the findings of an eight-month investigation into some of Australia’s largest travel insurance companies. According to the report, those companies sold more than 365,000 policies containing unlawful exclusionary clauses or terms that discriminated against people with mental health conditions. e VEOHRC investigation focused on three companies that make up 37
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