LSJ - June 2014

JUNE 2014

STANDING STRONG STRAIGHT TALK FROM THE NEW ATTORNEY GENERAL CROSS TOBEAR THE LAWYER MENTALHEALTH SETTING NEW TARGETS DIGITAL DETOX WHY YOU NEED IT A DAY IN THE LIFE OF A LEGAL AID LAWYER 6 DUMB THINGS SMART PEOPLE DO BRINGING HOPE TO WAR ZONES

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PRESIDENT’S MESSAGE

Welcome to the new look LSJ . I congratulate all who have been

A s far as political rollercoaster rides go, the past couple of months have certainly been memorable. Following the shock resignation of NSW Premier O’Farrell on 16 April, a new cabinet was sworn in. is reshu e produced a new Attorney General and Minister for Justice, the Hon Brad Hazzard MP. Michael Tidball, the Law Society of NSW chief executive o cer, and I had a very positive initial meeting with Minister Hazzard, in which we raised our concerns regarding the ministerial hierarchy within the new department of Police and Justice. In particular, we sought assurances regarding any involved in this project and hope you enjoy reading this significant reboot of a much-loved o ering to members.

potential erosion of the independence of the First Law O cer under the new arrangements. Following the resignation of Police Minister Gallacher on 2 May, the Attorney General appears to be the senior minister within the Police, Attorney Generals and Justice Portfolios cluster, however, we are still seeking clari cation on this issue. I am also pleased to report that the Legal Profession Uniform Application Bill passed the NSW Legislative Council on 14 May without opposition. e

contribution of the Law Society was acknowledged both in Parliament and a ministerial media release. We now expect that the Legal Services Council and new Commissioner will be appointed in July, with the new scheme due to commence in early 2015. Finally, I would like to thank all those who contributed to the success of Law Week 2014, which brought legal information direct to local communities with 120 events across the state.

JUNE 2014 I LSJ 3

A WORD FROM THE EDITOR

ISSN 1839-5287

Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Craig Sisterson Art Director Andy Raubinger Graphic Designer

Welcome to the launch edition of the all new LSJ . e task of relaunching the Journal has been a mammoth one. e rst step – talking to members and uncovering what you expect from your member publication – was followed by several months of brainstorming, focus groups, consultation and, nally, creation. As the LSJ moves into a new era, it’s tremendously exciting to consider the possibilities of the stories we can uncover, the knowledge we can convey, and the community we can build through the Law Society of NSW’s shared connection with and love for the law. e new LSJ is quite di erent to what you’re used to, with a range of topics from in-depth legal updates to health, wellbeing, practice management, technology, careers and much more. Our aim is to create a publication that takes a holistic approach to legal practice and celebrates the challenges, achievements, knowledge and daily life of lawyers. Hopefully we have achieved that. e team at LSJ very much looks forward to moving into this new era with you.

Michael Nguyen Photographer Laura Friezer Editorial enquiries journal@lawsociety.com.au Business Development Manager Jemma Still Classified Ads www.lawsociety.com.au/advertise Advertising enquiries jemma.still@lawsociety.com.au or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2014 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Cha ey

Contributors

Daniel Stepniak is associate professor at the University of Western Australia. He looks at the logic behind televising court cases in Australia. Hot Topic p20

Justice Melissa Perry was sworn into the Federal Court in September. She warns against overlooking women at the Bar. Pearls of Wisdom p24

Julie McCrossin is a writer, trainer and lawyer. Her first feature for the LSJ is on the inspirational Helen Durham. Profile p30

Dr Joanna McMillan joins the LSJ team with advice about health and nutrition. See her story “Six dumb things smart people do” . Wellbeing p58

Cover photograph: Laura Friezer

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

NEXT ISSUE: 1 JULY 2014

CONTENTS

30 26

FEATURES

56 DIGITAL DETOX Why your health depends on stepping away from technology 58 6 DUMB THINGS Dr Joanna McMillan reveals some common misconceptions about what we eat 60 LAUGH OUT LOUD Anthony Ackroyd tells why laughter is the best medicine 61 TIME POOR FITNESS No-fail tips for getting fit and healthy when you’re watching the clock

62 CITY GUIDE Your guide to spending 24 hours in London 66 YOUWISH Find true luxury in a remote corner of NZ’s south island 68 ADVENTURE ISLAND Walk o… your gourmet dinner on Tassie’s stunning Maria Island

20 HOT TOPIC

Daniel Stepniak weighs the pros and cons of televising court cases 26 COVER STORY Claire Cha…ey gets the inside word from new Attorney-General Brad Hazzard 30 PROFILE Julie McCrossin delves into the extraordinary international career of Australian lawyer Helen Durham 36 MENTAL HEALTH

Jane Southward reports on the new guidelines for the legal profession

6 LSJ I JUNE 2014

68

62

54

REGULARS

LEGAL UPDATES

8 MAILBAG 10 BRIEFS

46 A DAY IN THE LIFE Hayley Dean, legal aid lawyer 48 TECHNOLOGY Three tech problems

74 ENVIRONMENT & PLANNING 75 CORPORATE 76 LABOUR LAW 78 INTELLECTUAL PROPERTY 79 WATER RIGHTS 80 CRIMINAL LAW 82 WORKPLACE RELATIONS 83 TRADE

News and events from the legal world 14 FROM THE ARCHIVES 16 CAREER MOVES Who moved where this month 18 GLOBAL FOCUS Legal news from around the world 24 PEARLS OF WISDOM Justice Melissa Perry talks women and the law 40 CAREER HUB Get the best out of work 44 PROFESSIONAL DEVELOPMENT The meaning of partnership

you didn’t know you ha d

50 PRACTICE

MANAGEMENT Tips to make your firm more profitable 54 EXTRACURRICULAR

The lawyer taking his love for wine to a new level

84 LITIGATION 85 LEGAL RISK 86 CASE NOTES: GENERAL PRACTICE 90 CASE NOTES: HIGH AND FEDERAL COURTS 92 LAW SOCIETY ADVOCACY: POLICY & PRACTICE

70 LIFESTYLE

The latest in motoring, wine, books and style 98 EXPERT WITLESS Legal news to make you giggle

JUNE 2014 I LSJ 7

MAILBAG

LETTERS TO THE EDITOR

Spelling divorce I was amused by the Outside View anecdote on ‘D.I.V.O.R.C.E spells E.N.D’ in the April issue of the Law Society Journal. It reminded me of one of my early errors in practice, way back when the Family Law Act (1975) was only a few years old. I interviewed a man who “wanted a divorce”. In my youthful enthusiasm I took instructions including names, occupations, dates of birth, marriage, children etc. I established both parties were psychiatric nurses. I then asked the final (and ever since, the first) question,

“When did you separate?” “Oh we haven’t separated” was the astonishing response. I then explained the new ground for dissolution as well as the concept of separation under the same roof. “I don’t think the wife would like that,” came the reply. I never did establish why he wanted the divorce. Peter Wilson, Trangie, NSW Not so fast The Department of Police and Justice? Who snuck that one in? Whatever happened to the separation of powers in NSW?

are headed respectively “The Parliament”, “The Executive Government” and “The Judicature”. The doctrine of separation of powers, let alone the requirements of good, right and proper governance, dictates the Legislature makes the laws, the executive (including the NSW Police Force) puts the laws into operation and the judiciary interprets the laws. In NSW we now have, overnight, out of the blue, a Department of Police and Justice. As citizens, let alone members of the legal profession, we should be screaming like hell and manning the barricades. John Taylor, Freemans Reach, NSW

Write to us: Letters to the editor, LSJ

170 Phillip St, Sydney NSW 2000 Email: letters@lawsociety.com.au Fax: 02 9926 0123

The first three chapters of the Australian Constitution

Personal Injury Law Reform and Social Justice

Dinner | Pre-dinner drinks and canapés will be offered, followed by a 3-course dinner Price | $145 To attend, please visit www.stms.org.au or telephone Anthony Herro on 9247 0100 All welcome

Speaker | Ms Ros Everett, President, Law Society of NSW on “Personal Injury Law Reform and Social Justice” Date | Wednesday 25 June, 2014 at 6.30pm (Preceding the dinner there will be Mass at the crypt at St Mary’s Cathedral at 5.30pm) Venue | Doltone House, 181 Elizabeth Street, Sydney

Saint Thomas More Society An event of the

Australian Lawyers inspired by the example of Saint Thomas More

8 LSJ I JUNE 2014

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BRIEFS NEWS

UNDERWEAR AND THE GOLDENGAVEL WINNER

A witty presentation on the choice of boxers or briefs has won David Mierendor (pictured top right), from Allens, the NSW Young Lawyers Golden Gavel award for 2014. Mierendor was one of 10 contestants in the annual event attended by 600 at the Westin Hotel on May 16. He admitted to feeling daunted when given his topic, “Boxers or briefs: the secret life of a barrister”, 24 hours before presenting the five- minute spiel. Gavel judges Justice Julie Ward and Mark Doepel (pictured middle right), a partner at Sparke Helmore, agreed that choosing the winner was tough. Antony Faisandier, from Baker & McKenzie, was named runner up. His topic was “You have been endorsed: performance review 101”. Peter Craney, of Blackstone Waterhouse, won the People’s Choice award for his speech on “How I met your mother at a CPD seminar”. The other speakers (below right) were Sam Sykes of Sparke Helmore; Matthew Geary of Gadens; Candice Berger of Somerville Legal; Claire Anderson, a student at the University of New South Wales; Nadia Messiha of Hills Family Lawyers; Daniel Lim of Clayton Utz, and Kirstie Underwood of Suncorp. Here’s an excerpt from Mierendor ’s address: “As lawyers, we give briefs to barristers all the time as documents. However, as my topic cleverly suggests in its witty use of innuendo, briefs are also a kind of underwear ... While briefs are something worn by both men and women, boxers are traditionally worn only by men. Boxers or briefs is a male underwear-based dilemma and, as a topic, it reflects the inherent masculine nature of the Bar. In NSW only 25 per cent of barristers are women. “The Bar, if you like, has a seam or much larger pouch area in the crutch to accommodate the bulge of men. Boxers or briefs may be a masculine topic but, in fairness, this speech would have been a lot worse if my topic was ‘Panties or G-strings, both are visible through a glass ceiling’. So allow me to rephrase the topic in gender-neutral terms. ‘Loose or tight underwear, the secret life of a barrister’. That is the name of a documentary never coming to a cinema near you. “What I have done so far is be a pedant, and pedantry is something lawyers do. It’s part of the public life of lawyers. A lawyer is someone who at a party hears the song ‘We didn’t start the fire’ and says, ‘Yes, but you were near the fire and you didn’t do anything to put it out. At worst, you are an accessory to arson. At best, you were knowingly involved in the fire’.” Mierendor will represent NSW at the national Golden Gavel competition in Canberra in September. We wish him luck.

10 LSJ I JUNE 2014

BRIEFS NEWS

IT’S ALL DOWNHILL FOR LAWYERS Entries have opened for the annual LAWSKI event, now in its 24th year. The weekend promises to be as action-packed and social as ever – and did someone say competitive? LAWSKI 2014 includes: Sydney Registration Party, Thursday 24 July; Welcome Party at the Keller Bar – Thredbo, Friday 1 August; Lawyers’ Ski and Snowboard Race – Thredbo, Saturday 2 August; Post-Race BBQ lunch – Thredbo, Saturday 2 August; and Presentation Dinner including our charity auction, this year supporting the Sporting Chance Cancer Foundation – Thredbo, Saturday 2 August. A range of prizes will be given away throughout the weekend including lucky door prizes and prizes for best fancy dress and most impressive crash on the race course. Entries are now open. For more information, entry forms, pictures and sponsors visit: lawski.com.au facebook.com/lawski

50 YEARS IN THE GAME Dubbo’s Douglas Butcherine celebrated 50 years of practice on 1 May. Butcherine, 77, graduated from the University of Sydney in 1962. After working in Sydney for a couple of years, he moved to his hometown of Dubbo for work in 1964. A father of five and grandfather of 22 (with two more babies on the way), Butcherine’s son, Andrew, works with him at Nelson Keane & Hemingway. He says he has no plans to retire but is “easing oŸ”, working four days a week and starting work a little later than unusual on some mornings. So, what has been the biggest change in legal practice over the past 50 years? “It would have to be computers,” he says. “They really have revolutionised how we work. Plus I have noted a gradual improvement in the standard of lawyers. I think this is due to continuing education programs.” And what does he see as the biggest challenge facing the profession? “It is very exacting, and clients are so aware and well educated,” he says. “Lawyers need to be so, so accurate.”

KEEP PRO BONO VOLUNTARY The National Pro Bono Resource Centre has welcomed news from the Productivity Commission that is does not consider compulsion an appropriate way to bolster pro bono legal services and has called for more restraints to be removed so more lawyers can do more pro bono work. The Productivity Commission released a draft report on Access to Justice Arrangements and called for final submissions by 21 May. Centre director John Corker said barriers were still preventing some lawyers from doing pro bono work. “Given the evidence of great unmet legal need in Australia, it is a waste of potential pro bono capacity to have obstacles in the way of lawyers who are willing to help by giving their services for free,” he said. “The centre was recently advised of several in- house legal teams wishing to start a pro bono project but there were no options for them to

do so due to the current practising certificate regime in their jurisdiction. “Much progress has been made in Australia in the past five years to remove constraints facing lawyers who wish to take on pro bono legal work but there is still plenty more that can be done.” He welcomed the Productivity Commission’s recommendation that governments hire a pro bono coordinator (as exists in Victoria) to coordinate requests from firms for clearance of matters of conflict of interest and include a pro bono aspirational target as part of the requirement for firms to tender for government legal work. “Pro bono work is part of being a lawyer and it makes being a lawyer better,” Corker said. “We do it because it is the right thing to do. If you make it mandatory it takes away from the honourable nature of pro bono work.” Corker said about 10,000 of the nation’s 55,000 lawyers had signed up for the voluntary National Pro Bono Aspirational Target committing to at least 35 pro bono hours each year.

JUNE 2014 I LSJ 11

BRIEFS NEWS

Number Crunch 28,004 Solicitors in NSW

10TH EDITIONOF WOMEN AND FAMILY LAW LAUNCHED Women’s Legal Services NSW has launched the 10th edition of Women and Family Law during Law Week at the State Library of NSW. Women and Family Law is an easy-to-read publication for women experiencing relationship breakdown. It contains tips and answers common questions on divorce, property, children and child support, as well as protection against violence. The 10th edition details the many reforms to family law over the years and an increased recognition of the scope of family violence. Women and Family Law is available

48.62% Women solicitors in NSW compared with just 27.8% in 1995

1 in 2 NSW solicitors practises in Sydney’s CBD 42.2 *

The average age of NSW solicitors is

online and in hard copy from Women’s Legal Services NSW.

* Source: 2013 Profile of the Solicitors of NSW , prepared by Urbis for The Law Society of NSW

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BRIEFS FROM THE ARCHIVES

review THE YEAR IN 1995

Take a trip down memory lane through the pages of the Law Society Journal.

THE LAWSOCIETY TAKES ON THEWEB

The Law Society Council agrees to move towards the delivery of information to members via a “homepage” on the World Wide Web section of the Internet. President Maurie Stack writes: “The Internet is basically a huge number of computers throughout the world which are linked by dedicated telephone lines. Each organisation with a computer in the Internet pays for its own equipment

and for a short link in the net. Through commercial providers, individuals can dial into the Internet. This provides a quick and cheap form of e-mail to anyone in the world who has a personal computer, a modem and an address on the Internet. “Whether you surf the Internet breakers or quietly cruise its byways, you’ll never get bored. Information on just about any topic is available, quickly and cheaply.”

SCHOLAR AND ACTIVIST HARVARD BOUND

Larissa Behrendt is a name to watch in legal circles, particularly in the Indigenous legal milieu. Apart from the fact she holds a Masters degree in law from Harvard University, teaches law at the University of NSW, and reviews books for the The Sydney Morning Herald , she’s now heading back to Harvard in July to study for a PhD. “The law has yet to recognise our sovereignty,” says Behrendt.

PRESS RELEASE The Law Society issues a press release describing as

2300 PEOPLE GATHER IN SYDNEY’S TOWN HALL ON OCTOBER 11 to show the Carr Government their concern over the government’s push to substantially reduce the role of lawyers in traditional areas of practice. “I’ve been a member of the Law Society for 25 years and I’ve never seen the Law Society gather such a crowd.” Shadow cabinet minister John Hannaford

“outrageous” the Department of Immigration and Ethnic A‹airs’ policy of denying asylum seekers independent legal advice. “Over 1225 boat people have arrived in Australia over the last ten years. Refugee status was granted to 394,” the Law Society Journal reports.

14 LSJ I JUNE 2014

BRIEFS OUT AND ABOUT

THOUGHT LEADERSHIP SERIES 2014 PRIVACY IN A DIGITAL AGE Members came out in force in April to hear esteemed panellists Dr Vivienne Thom, Inspector-General of Intelligence and Security (below left), Stephen Blanks, NSW Council for Civil Liberties (middle right) and Dr Gordon Hughes, partner at Ashurst (above left), tackle the contentious and ever-growing issue of “Privacy in a Digital Age”.

REGULATION ON THE DIGITAL FRONTIER There was a large turnout of members in March to hear research fellow Angela Daly (main middle), author Linda Jaivin and cyberlaw expert David Vaile debate issues on the regulation of cyberspace

and the challenge of balancing the law with digital rights and obligations.

lawsociety.com.au/ thoughtleadership

JUNE 2014 I LSJ 15

BRIEFS CAREER MOVES

move MEMBERS ON THE

“Numbers Talk”

GRANT LONG From corporate lawyer at Lake Macquarie City Council to principal at Long Legal Pty Ltd

GITANJALI BAJAJ Promoted to partner in the Litigation & Regulatory practice, DLA Piper Sydney

AMELIA KELLY Promoted to partner in the Restructuring practice, DLA Piper Sydney

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SOPHIE DEVITT Promoted to partner in the Litigation & Regulatory practice, DLA Piper Brisbane

LYNDONMASTERS Promoted to partner in the Corporate practice, DLA Piper Brisbane

NICOLE GARDNER Promoted to partner in the Dispute Resolution practice, Ashurst Sydney

Litigation Support Business Valuation

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Sydney, NSW2000 T +61 2 8488 6000 sydney@rgl.com rgl.com

JON LOVELL Promoted to partner in the Employment practice, Ashurst Canberra

CORY MCHATTAN Promoted to partner in the Securities and Derivatives practice, Ashurst Sydney

KENNETH NGUYEN Promoted to partner in the Banking practice, Ashurst Melbourne

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

23 offices | 5 continents | 1 firm

1 LSJ I JUNE 2014 6 LSJ I JUNE 2014

END ELECTRONIC CONVEYANCING TRAVEL TO with the SPECIALISTS DESTINATION SAI GLOBAL PROPERTY

JUNE 2014 I LSJ 15

BRIEFS INTERNATIONAL

global FOCUS

LEGAL NEWS FROM AROUND THE WORLD

UNITED STATES RISKY AND UNFINISHED BUSINESS Law firms should not be able to “own” legal matters, the American Bar Association said in a brief filed in a New York Court of Appeals case considering the status of “unfinished business” at bankrupt law firms. As reported by the Law Blog of the Wall Street Journal , the United States’ largest legal organisation argued that the long- standing principle of a client’s right to choose, including selecting and retaining or changing counsel at any time, meant that bankruptcy administrators shouldn’t be able to claim against firms that inherited hourly assignments originating at law firms that went bust. Following conflicting decisions, New York State’s highest court was asked for guidance on whether firms in bankruptcy can collect on pending hourly fee assignments, and if so, how the court should define such matters and divide the money earned. Law firms and bankruptcy administrators have lined up to file briefs on either side of what could be a test case for several “unfinished business” suits. With the law unsettled, many firms sued by law firm trustees had chosen to settle cases. Oral arguments take place this month.

BRAZIL A GIANT INTERNET LEAP One of the world’s largest countries and internet markets joined a select group of nations to o¡er citizens a digital bill of rights when Brazilian President Dilma Rousse¡ signed the Marco Civil into law recently. As reported by Reuters, the ground- breaking legislation protects freedom of expression and information, guarantees equal access to the internet, and protects the privacy of Brazilian users in the wake of US spying revelations. Under the law, companies such as Google and Facebook will be subject to Brazilian laws and courts in cases involving Brazilian citizens, even if the data is stored on servers abroad. Service providers will not be liable for user-published content, but must comply with court orders to remove o¡ensive or defamatory material. The law has been supported by the likes of British physicist Tim Berners-Lee, inventor of the World Wide Web, “for balancing the rights and duties of users, governments, and corporations while ensuring the internet continues to be an open and decentralised network”.

UNITED KINGDOM NO BARRISTERS, NO TRIAL Discontent over massive legal aid cuts in Britain has resulted in a high-profile fraud trial collapsing for want of counsel, reports The Law Gazette . His Honour Judge Leonard QC refused the Crown’s pleas for an adjournment, saying there was no reason to think the bar would accept very high cost cases at the reduced rates - the government cut fees by 30 per cent in December - and the Public Defender Service (PDS) was small and insu˜cient. To allow the state an adjournment to put right its failure to provide necessary resources to ensure a fair trial would be a violation of court process. Noting that the defence had made “painstaking enquiries” to find suitable advocates, contacting 70 sets of chambers, 90 firms of solicitors, and the Irish and Scottish bars, his Honour said it would be a “dangerous precedent” for cases to be dictated by the availability of PDS advocates. The Financial Conduct Authority has indicated it will seek leave to appeal the decision.

18 LSJ I JUNE 2014

NEW ZEALAND NO PRE EMPTIVE PEEK FOR MEDIA A High Court judge in New Zealand has denied a media application to inspect and copy documents o the court file ahead of a trial involving high-profile former MP and Auckland mayor John Banks. In APN New Zealand Limited v Banks [2014] NZHC 913, Justice Wylie had to balance a number of issues, including the defendant’s right to a fair trial, the orderly and fair administration of justice, confidentiality and privacy, the principle of open justice, and freedom of information. The principle of open justice, noted Justice Wylie, sought to encourage the fair and accurate recording of, and comment on, trials and decisions. Releasing documents from the court file, which may or may not be used in the trial itself due to relevance, confidentiality, or admissibility, prior to any trial would risk “trial by media”, and wouldn’t be helpful to the fair administration of justice, Justice Wylie said. The need for fair, balanced, and accurate reporting (open justice) could best be achieved by the media attending the trial and reporting on evidence actually given there.

UNITED STATES MY PHONE, MY CASTLE? The Supreme Court of the United States appears divided on how to apply decades-old precedents to police searches of smartphones, reports The New York Times . At a recent hearing, the nine justices, ranging in age from 54 to 81, struggled with two cases that sought to establish whether police could search digital content without warrant in the same way they can handle physical diaries or photos held by someone at the time of arrest. The justices noted that “most people now carry their lives on cellphones”, with the technology accessing vast amounts of private materials, including bank, tax and medical records. As the justices sought to balance the longstanding rule that items carried on a person were subject to search and seizure with changing expectations of privacy in the modern age, some suggested drawing a distinction between arrests for serious and non- serious crimes, or limiting searches to information relevant to the crime. A decision is expected this month.

CANADA PM TAKES SWING AT CHIEF JUSTICE Canadian legal groups and media

outlets have strongly condemned recent comments by Prime Minister Stephen Harper attacking Chief Justice Beverley McLachlin, saying the claims risk casting a shadow over the independence of the Supreme Court. As reported by The Toronto Star , following a series of defeats for his Government before the highest court, Harper accused the Chief Justice of trying to inappropriately lobby against a proposed Harper appointee to the Court. Calling it “scurrilous” and “a contemptible bid to impugn the integrity of a respected jurist”, the Star said McLachlin sought to alert Harper that his proposed appointee, federal judge Mark Nadon, might not meet eligibility requirements for a Quebec seat on the Court (proved correct when Nadon’s appointment was later overturned). However, Harper’s attack was unlikely to sway public opinion his way, with University of Toronto law professor David Schneiderman noting the PM was “trying to discredit the Chief Justice and he can’t win that fight”.

JUNE 2014 I LSJ 19

BRIEFS HOT TOPIC

A WINDOW ON THE LEGAL WORLD Graphic details and vision from the Oscar Pistorius trial in South Africa have put a renewed focus on the notion of televising trials. Associate Professor DANIEL STEPNIAK evaluates whether it’s time for TV cameras to be allowed into our courtrooms.

T o ask whether TV cameras ought to be admitted into our courts today is no longer the pressing question it was when televising proceedings seemed to be the only means of enabling the public to see and hear what actually occurred in court proceedings. language that challenges the comprehension levels of law students, academics, lawyers and even fellow judges) traditionally has been held to satisfy the requirements of open justice. However, since the 1980s, Australian courts have increasingly recognised that open justice calls for more than open doors and published judgments. ere has been debate as to whether publication of courtroom proceedings can facilitate informed debate on whether what occurred in court re ected public notions of justice. e admission of television cameras to record court proceedings for later broadcast appeared to provide the means by which anyone with access to a television could acquire a personal understanding of how courts operated and how justice was administered. For some time, applications and arguments in favour of the admission of television cameras most commonly have been rejected. When televising proceedings has been allowed, the cases have been subject to strict Merely leaving court doors open and publishing reasons (largely expressed in

court-imposed rules, guidelines or undertakings that nothing be broadcast that could adversely a ect the administration of justice. e quest for the holy grail of iron-clad rules and guidelines proved elusive. e invariably positive evaluations in jurisdictions that admitted cameras into their courts seemed to be neutralised by rogue cases or judges preferring to rely on their own intuition and refusing to be satis ed by evidence. Nor could it be said that the television networks clamoured for admission. Somewhat unexpectedly, in light of a widely held perception of a judiciary stubbornly resisting media clamouring to televise court proceedings, the reality has been that when invited to televise proceedings, television networks tended to show little or no interest in doing so. Perhaps most signi cantly, judges who presided over televised trials rarely expressed satisfaction with the length or selection of footage chosen for broadcast. My observations and assessment of television’s access to courts led me to conclude that while television cameras need not adversely a ect proceedings, it could not be said that their admission led to the attainment of the goals justifying admission. Televising court has failed, to date, to promote public understanding of court proceedings and public scrutiny and informed debate. Disappointed with how little of what was

Photography: Tony McDonough

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the internet, online streaming of proceedings and even the use of social media to reach a greater sector of the population, some state governments have declined court requests for the quite modest funding required for the ongoing maintenance of such initiatives. In so doing, they have rehashed uninformed and repeatedly disproven arguments about the dangers of televising. ey have also ignored the vital distinction to be drawn between proposals to televise proceedings: those reliant on the media’s interest and willingness to broadcast material likely to educate and promote public understanding of court proceedings, and those in which courts record and stream key segments of proceedings online, accompanied by explanatory and supporting material, and where such material including the footage of proceedings is also likely to be broadcast by television networks and used by other media. Other Australian courts have managed to nd the funding to provide the public with ongoing online access to recording (audio-visual or only audio) of categories of proceedings, and in the case of the High Court of Australia, all proceedings before the full court. It is important to stress that such coverage is only one element of Australian courts’ strategies to promote greater access to and understanding of judicial proceedings. us, for example, using the internet, courts are posting decisions and other related materials within hours and, in some cases, minutes of them being handed down. Interestingly, in light of traditional judicial insistence that any proceedings broadcast by television networks that are granted access be broadcast without editing or commentary, courts are beginning to accept that without editing, explanation, supporting materials or commentary, footage of court proceedings, in many cases, may be barely decipherable by the public. 

The admission of television cameras to record court proceedings for later broadcast appeared to provide the means by which anyone with access to a television could acquire a personal understanding of how courts operated and how justice was administered.

o ered was actually broadcast and with the lack of informative and educative content in what was televised, courts began looking elsewhere. e arrival of the internet and its phenomenal growth as a source of information and communication has provided courts with a means of providing the public with almost instantaneous access to unprecedented amounts of information about court proceedings. Even more signi cantly, associated developments in recording and communication technology permit courts to a ordably produce information, including audio-visual recordings of proceedings, and to disseminate such materials in a manner that overcomes the shortcomings of media coverage. Courts own recordings of entire proceedings, or more commonly of segments such as sentencing remarks, judgments, judgment summaries and opening statements, clearly avoiding the risk of disruption and other potentially adverse e ects of admitting TV cameras into courts. By being made available to the media, such material has been shown to promote more extensive and accurate media coverage. e online availability of such materials also ensures that coverage is not determined by considerations of cost and ratings. It is also designed to counter potentially selective, overly brief, unbalanced, editorialised, sensationalised or otherwise misleading media coverage. While most Australian courts are enthusiastic about the educative and informative potential of

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BRIEFS HOT TOPIC

T his is clearly the case where written rather than oral submissions and/or evidence dominate. Not unlike, it must be conceded, the traditionally lauded basis of open justice secured by allowing members of the public to enter courtrooms so that they may endeavour (often fruitlessly) to understand what is going on in the few minutes of proceedings they happen to stumble across. Using their own audio-visual recordings and accompanied by documents, explanatory materials and links to other related material, Australian courts have the means to provide the public with access to footage and material about court proceedings that should truly promote public understanding and informed debate about the law and the administration of justice in our courts. For all its innovation, the posting of material and streaming of proceedings online still requires the public to seek out the information, causing some to question whether it is worth the courts’ cost and e ort. e solution may well be found in social

media, the early utilisation of which reveals its capacity to take news and information about court proceedings to the people. So where does that leave an old technology medium such as television? By no means irrelevant, I would suggest, and likely to bene t from the arrival of new technologies, as overseas experience suggests. Television still remains a dominant source of public information about the courts, and courts’ utilisation of the internet and social media to promote public understanding and access to courts has been shown not to sideline the television medium but rather to promote longer coverage of more hearings. Almost 25 years ago I became a passionate advocate of television cameras being admitted into courts. Today, I still argue for television coverage of court proceedings but largely in the context of proceedings being recorded by courts and, together with additional information and materials, being provided via the internet and social media to the public and to the media for publication and radio and television broadcast.

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BRIEFS WISDOM

Those who pass over female counsel in the higher echelons of judicial power miss opportunities to brief some outstanding advocates, artificially limiting their field of choice, writes the Honourable Justice Melissa Perry , Justice of the Federal Court. wisdom PEARLS OF

I n its survey in 2009, the Law Council identified a number of perceptions that had persisted and were thought to impact on the number of women joining, remaining and advancing at the Bar. These include that “advocacy work is more suited to the masculine personality” and that “female barristers are not suited to lucrative commercial work at the Bar”. Consistently with this, the perception is sometimes evident that it is better to have an aggressive advocate to stand up to the other side. Such perceptions may contribute to statistics that show that women are accepted as good “worker bees” but less likely to be briefed as lead counsel. In my experience, the assumption that women can’t be aggressive is simply not the case. Indeed, one of the most aggressive advocates I have encountered was a woman. More importantly, I can categorically say from many years’ experience in the law that aggression is very rarely, if ever, in the client’s best interests. Barristers are engaged in the task of persuasion and judges want thorough preparation, strong analytical abilities, a deep understanding of legal principle and sound judgment. These are the tools of persuasion and they are not unequally endowed upon any particular gender.

sobering when I looked over statistics as to the number of female barristers appearing before the High Court between 1994 and 2011 to realise that in a number of those years I was the only female barrister who had appeared as lead counsel or had a speaking part. Those times have changed, although appearances by women with a speaking part are still infrequent in that court and less frequent than one would wish in intermediate appellate courts. Those who pass over female counsel in these higher echelons of judicial power miss opportunities to brief some outstanding advocates, artificially limiting their field of choice. They also overlook how anomalous it must seem for a Bench, which may now be comprised wholly or by a majority of women, to view a Bar Table populated exclusively by male counsel. Nonetheless, when we look at the statistics, it is important to celebrate how far we have come, as well as understanding what remains to be done. When I reflect on the changes I have already seen and the remarkable women who inspired me, I am reminded that the world is one of infinite opportunities. But we will not find those opportunities unless we look for them in the first place and sincerely believe that they are open to us.

Equally troubling are perceptions that women cannot be relied upon to stand their ground. As one respondent to a study conducted on behalf of the Victorian Bar Council stated: “You want to be able to refer the client to a barrister who is strong enough to handle the client’s problem and the di˜culty, or the perceived di˜culty with female barristers, is that they may not have the intestinal fortitude to handle it.” I can equally categorically say that has not been my experience on the bench or at the Bar. The courage to stand up for your client is an essential trait for an advocate: it is not a trait that is gender-specific. I believe that by developing and using the skills of persuasion to the best of our ability, we as women through our actions continue to break down these perceptions and do so more powerfully than we can through words alone. We are the most e¡ective advocates for ourselves when we are e¡ective advocates. And I have on occasion recommended to government and other litigants frequently in the courts when they complain that the pool of advocates they brief is small, to increase the pool by watching for good advocates on the other side. When I began appearing in the High Court in 1995, women were rarely seated at the Bar Table and even more rarely given a speaking part. It was somewhat

This is an edited extract from a speech by the Hon Justice Melissa Perry, Federal Court of Australia, to the Women Barristers Forum on 5 April. A copy of the full text of the speech is available on the Federal Court website.

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COVER STORY

A ROSE BY ANY OTHER NAME For new state Attorney-General Brad Hazzard, the renaming of the Department of Attorney-General and Justice is a hollow exercise that does nothing to diminish his position or agenda. He speaks to CLAIRE CHAFFEY .

I n April, newly-appointed New South Wales Premier Mike Baird decided to shake up the Department of Attorney-General and Justice, rolling Attorney-General Greg Smith and rebranding to the Department of Police and Justice. e change, according to Shadow Attorney-General Paul Lynch in an article in e Sydney Morning Herald in the same month, would, in e ect, mean newly-appointed Attorney-General Brad Hazzard would be “subservient” to the Minister for Police. Such a move, said Lynch, was indicative of the government’s preference for administrative convenience and cost savings over the rule of law. A wave of concern washed through the legal profession. Hazzard, however, is having none of it – and the solicitor and former Minister for Planning and Infrastructure is quick to dispel any notions of subservience, demotion or otherwise. “ e administrative changes were misinterpreted by the legal profession to see that I, as the rst legal o cer, would somehow be subjugated to the Police Minister,” he says. “Absolutely not. I am not going to let that happen. And no-one need fear that will ever happen while I’m on watch.” According to Hazzard, the name change is just that: a name change that will not diminish the in uence or status of the Attorney-General – or the legal profession – in the slightest.

Photography: Laura Friezer

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“The administrative changes were misinterpreted by the legal profession to see that I, as the first legal o cer, would somehow be subjugated to the Police Minister. Absolutely not. I am not going to let that happen.”



COVER STORY

I t’s early days for Hazzard, 62, but already he has some signi cant items on his agenda. e rst, he says, is ensuring that the judiciary remains strong and independent, which he hopes will go some way to restoring faith in the legal system. According to Hazzard, there are sectors of the community that believe the legal system doesn’t always address community needs. Part of the reason for this, he says, is the legal profession’s inability to e ectively communicate what it is doing and why it is doing it. “ ere needs to be a lot more recognition of the need to communicate in simple language about why we do things,” he says. “ e challenge for lawyers is to move away from the jargon that is necessary in our day-to-day activities and realise that it also needs to be translated into a simpler form of words that will help the community understand and appreciate why we do things.” Speaking plainly, however, isn’t always a good idea – especially if you’re the Attorney-General. Hazzard’s predecessor, Greg Smith, was tarred with a “soft-on- crime” brush, partly due to his views on the ine ectiveness of mandatory sentencing. He expressed his concerns in the face of a government using mandatory sentencing as the cornerstone of new anti-alcohol-fuelled violence laws. Premier Baird promptly despatched Smith after Barry O’Farrell quit. For Hazzard, though, the priority is to balance legal principles with community expectations. “I don’t have any preconceptions about labels. Greg Smith was an excellent Attorney-General. He is an excellent lawyer,” he says. “ e challenge for me, at this particular time, is to make sure there is a balance [between] some of these issues.”

“Sometimes, that may or may not be exactly in accordance with legal principle,” he says, “but hopefully it will be in the majority of cases.” Hazzard also has a plea for his fellow Attorneys-General: get on board with national profession reform. His rst reading in Parliament was in relation to the Legal Profession Uniform Law Application Bill 2014, which, Hazzard says, “takes us a few steps closer towards common sense”. So far just New South Wales and Victoria are backing the Bill, which aims to streamline the profession and remove much of the bureaucracy that Hazzard says hinders practitioners. “Whether you’re a small suburban practice or a large city practice, the red tape and bureaucracy that surrounds us is a major challenge,” he explains. “At least we now have the kernel of a system that will make it a lot easier for legal practitioners to operate across at least Victoria and New South Wales. “My message to Attorneys-General around the country is that this is a good start – come on board. It would make a lot more sense for law rms to have at least the bureaucracy and the red tape of operating across borders reviewed.” While Hazzard is aware of the di culties of achieving a borderless legal system, it is critical to both the health of the profession and the community, he says. “I intend to listen to the profession and see what we can do to try and streamline [the system],” he says. “It’s a killer. As a partner in a law rm in Manly for many years, it certainly didn’t help my sanity that I had to deal with so much red tape at all levels. “We need to look at it in a holistic way, not just for the bene t of the community but also for the profession to be able to do their job on behalf of the community.”

In relation to mandatory sentencing, Hazzard says: “ ere should be discretion for judges to deal with an o ender in the context they nd them, applying the appropriate legal principles. But, from time to time, the government has to take measures which send a strong message to change cultures. At the moment, sadly, in New South Wales we have a culture that’s been very much around excessive use of alcohol and drugs. What the government decided to do was send a clear message. It has already had some clear results across the [Sydney] CBD area where these provisions are in, and we will look at those as we progress.” Hazzard says the legal profession has to understand that the government must do what is in the best interests of the community. Who is BradHazzard? • Began his career in 1974 as a science teacher at North Sydney Boys High School • Studied law at UNSW and was admitted as a solicitor in 1977 • In 1984 he was awarded a Master of Laws from Sydney University • Throughout the ‘80s and ‘90s he practised as a solicitor and arbitrator on Sydney’s northern beaches • He entered Parliament in 1991 as the State Member for Wakehurst • In the Greiner and Fahey Liberal Governments he was chairman of the road safety committee StaySafe. In Opposition, he served continuously on the front bench under five Opposition leaders and in 17 di‹erent portfolios • Before being appointed Attorney- General and Minister for Justice in April 2014, he was the Minister for Planning and Infrastructure - a position he took up in April 2011

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