LSJ - June 2016

ISSUE 23 JUNE 2016

TRUTH, JUSTICE ANDHEALING FATHER FRANK BRENNAN ON THE ROYAL COMMISSION INTO CHILD SEXUAL ABUSE

MANVERSUSMACHINE SIMPLE STEPS LAWYERS CAN TAKE TO FUTURE-PROOF LEGAL PRACTICE

ABANDONINGTHOSEWE SHOULDPROTECT THE FAILURE OF OFFSHORE DETENTION LIVE, UNCUTANDLARGELY INAPPROPRIATE THE BEST OF THIS YEAR’S GOLDEN GAVEL ANEWFRONTIER INFAMILYVIOLENCE UNIQUE CHALLENGES FOR IMMIGRANTS HOWFARDOES ADVOCATE’S IMMUNITYGO? THE HIGH COURT DELIVERS JUDGMENT

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CONTENTS

28

26 24

FEATURES

24 HOTTOPIC

34 FUTURE PROOFYOURJOB

54 THENEWFRONTIER

O shore processing has been a complete failure, writes Madeline Gleeson 26 INFOCUS An Australian team of experts plans to bring 80 rhinos to Australia to save the species from extinction, reports Caterina Cavallaro 28 COVERSTORY In light of the Royal Commission, Julie McCrossin asks Father Frank Brennan if legislative change can save the Catholic Church

With machine-learning technology on the rise,

On the eve of another Young Garvan event for lawyers, gene researcher Paul Baldock writes that new medical research is completely rewriting what we know about DNA 57 GETSKI FIT Kate Allman has fitness tips to lift your skiing to new heights this ski season 58 TRAVEL In our city guide, we visit Hobart and in You Wish, we test-drive a luxury hotel in the Tasmanian capital that is owned by the former managing partner of Phillips Fox

Thea O’Connor says lawyers need to future-proof their employment 38 2016GOLDENGAVEL Have a laugh with the winner and People’s Choice speeches from the NSW Young Lawyers Golden Gavel event 48 ADAY INTHELIFE Immigration lawyer Kerry Murphy tells Jane Southward about his work with refugees and asylum seekers

ISSUE 23 I JUNE 2016 I LSJ 3

48

52

58

REGULARS

LEGALUPDATES

10 PRESIDENT’SMESSAGE 12 MAILBAG 14 NEWS News and events from the legal world 18 THE LSJ QUIZ 21 CAREERMOVES Who moved where this month

52 EXTRACURRICULAR Clayton Utz lawyer Mary Konstantopoulos tackles gender stereotypes with “Ladies Who League” 64 LIFESTYLE Book reviews, events and our movie giveaway 66 NON BILLABLES Yarns we can’t bill for 85 LIBRARYADDITIONS New books at the Law Society library 106 EXPERTWITLESS Legal news to make you giggle

68 ADVOCACY: THE LATEST IN LAW REFORM 70 PROPERTY: 2016 CONTRACT FOR SALE OF LAND 71 PERSONAL INJURY: CHILD ABUSE ACTIONS 72 RISK: ADVOCATE’S IMMUNITY FROM SUIT 75 RISK: COMMUNICATIONS WITH THE JUDICIARY 76 TAXATION: STAMP DUTY EXEMPTIONS 77 IMMIGRATION: FAMILY VIOLENCE 80 CORPORATIONS: MARKET BASED CAUSATION 82 WILLS: LIFE ESTATES & RIGHTS OF RESIDENCE 84 INTERNATIONAL: PNG DECLARES MANUS ILLEGAL 86 TRUSTS: ADVANCEMENT UNDER A TRUST 88 PRAC&PROCEDURE: ACCESS TO SOLICITOR’S FILE 90 IPLAW: TRADE MARKS & GOOGLE ADWORDS 92 WORKERSCOMP: WORK RELATED TRAVEL CLAIMS 93 ESTOPPEL: PROMISES & PROPRIETARY ESTOPPEL 94 CASENOTES: HCA, FCA, CRIMINAL, FAMILY & WILLS

22 OUTANDABOUT 42 CAREERCOACH

How to attract top talent to work for you

44 CAREER101

Sarah Love, ODPP 44 DOINGBUSINESS

Etiquette and fashion plus tips on what wine to pick as a gift

4 LSJ I ISSUE 23 I JUNE 2016

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A WORD FROM THEEDITOR

is month’s cover story is sure to re up some strong opinions among the LSJ readership. In our cover story on page 28, “Safeguarding our Children”, Julie McCrossin interviews lawyer and priest Father Frank Brennan as well as the Chief Executive O cer of the Truth, Justice and Healing Foundation, Francis Sullivan, and delves into the murky world of child sex abuse within Australian institutions, particularly the Catholic Church. Brennan and Sullivan o er open and honest assessments of the e ects that

ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor

Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer

past crimes, tolerated within a corrupt culture and insu cient legal framework, have had on so many. ey also give clear opinions on what should happen once the Royal Commission into Institutional Responses to Child Sexual Abuse winds up in 2017. Never has there been a more urgent or compelling case for deep cultural and legislative change. Do you agree? On a more personal note, the team at the LSJ would like to congratulate Ed Santow, Chief Executive O cer of the Public Interest Advocacy Centre, LSJ supporter, and all-round nice guy, on his appointment as Human Rights Commissioner. I can’t think of a more worthy candidate to take up such a challenging and important position.

Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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

Madeline Gleeson is Research Associate at the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW and the author of O shore. She writes that Australia’s o shore processing has been a complete failure. Hot topic p24

Julie McCrossin is a writer and trainer who studied law. In this issue, she meets Father Frank Brennan and Francis Sullivan who discuss the Royal Commission into Institutional Responses to Child Sexual Abuse. Cover story p28

Thea O’Connor is a Bellingen-based

Paul Martin is a solicitor in Sydney and a member of the Business Law Committee of the Law Society of NSW. He writes about the recent case of Arfaras v Vosnakis , [2016] NSWCA 65 and the principles of equitable estoppel. Estoppel p93

journalist and wellbeing coach. She explores the impact on legal practice of computers that can predict the outcome of cases and coders that can create contracts that execute themselves. Future-proof your job p34

Cover photography: Jason McCormack

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

NEXT ISSUE: 1 JULY 2016

8 LSJ I ISSUE 23 I JUNE 2016

President’smessage

I t was extremely disappointing that there was no long-term plan for the proper funding for the legal assistance sector or matters relating to family law in the Federal Budget. In March, I wrote to the Prime Minster calling for an urgent review of resourcing for family law matters and I have received a response. While generally supportive of the access to justice considerations raised in the letter, the Prime Minister’s response gave us little hope of a change to the government’s position on the matter in the short term. In the run up to the Federal election, the legal profession needs to make sure those holding elected office, or who are aspiring to do so, hear loud and clear the message that it is unacceptable to inadequately resource the legal assistance sector and the Family and Federal Circuit Courts. On that note, the Law Society hosted

the NSW campaign launch of Legal Aid Matters on 19 May. This campaign, initiated by the Law Council of Australia, aims to ensure the next Federal Government addresses Australia’s worsening legal aid funding crisis. See legalaidmatters.org.au for information and a petition. At the first Future of Law and Innovation in the Profession (FLIP) commission of inquiry in May, the Welcome to Country was given by Gadigal Elder Uncle Allen Madden. One of Allen’s favourite phrases – “You need to know where you come from to know where you’re going” – is particularly apt as we enter a period of intense focus on the future of the legal profession. I strongly encourage you attend the hearings. You can visit the FLIP website to follow the proceedings at lawsociety.com.au/flip Unlike the Law Society’s own commission of inquiry, the Independent Commission Against Corruption’s (ICAC) public hearings can impact the reputations of those called to give evidence, or about whom evidence is given. David Levine recently delivered his report on ICAC’s powers, recommending that future ICAC hearings be held behind closed doors, “to prevent the undeserved trashing of reputations”. To my mind, ICAC performs an important function, ensuring no person is above the law. However, it is important that we place reasonable limits on the circumstances in which the extraordinary powers of ICAC may be exercised to protect the community against unwarranted intrusions on their civil liberties. I look forward with interest to the NSW Government’s response to the Levine report. Finally, I would like to repeat my concerns about the framework for investigative detention of suspected terrorists introduced under the Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 . This law, which is yet another example of basic human rights being eroded, could see children in NSW as young as 14 held for up to 14 days and questioned for up to 16 hours a day, potentially without access to lawyers or a family member. The Bill was rushed through parliament with unseemly haste and without Law Society consultation. The Society will continue to monitor these measures and press for a balanced approach to their application.

GARY ULMAN

10 LSJ I ISSUE 23 I JUNE 2016

We don’t want other families to suffer

When my mum died from breast cancer, I knew that I didn’t want other families to suffer the same tragic loss. That’s why our family supports the Walter and Eliza Hall Institute of Medical Research. When we met the scientists at the Walter and Eliza Hall Institute, we were inspired by their passionate commitment to finding better treatments for patients. You can be assured that donations and bequests to the Walter and Eliza Hall Institute support the best research into cancer, infectious diseases and immune disorders.

– Eleni Horbury with her daughter Sophie, and cancer researcher Dr Anne Rios.

For more information please contact Ms Susanne Williamson, Head of Fundraising, on 9345 2962 or williamson.s@wehi.edu.au W wehi.edu.au

CANCER | IMMUNE DISORDERS | INFECTIOUS DISEASE

ISSUE 23 I JUNE 2016 I LSJ 11

Mailbag

LETTERS TO THE EDITOR

Presumption of innocence

deputy and gave his reason as loss of trust and confidence. The new deputy complained to ICAC that her employment had been terminated substantially in reprisal for making the complaints to ICAC, which investigated the matter and found that Kear had terminated the employment for this reason. Kear was prosecuted criminally and was liable to a total sentence of up to two years imprisonment. In March 2016, Kear was found not guilty. He was found not guilty, not simply because the prosecution failed to prove the offence beyond reasonable doubt, the normal standard required in a criminal case, but because Kear proved he did not dismiss the deputy substantially as a reprisal. What were the consequences of the allegation? First, the inquisitorial powers questions, the public inquiry, the cherry picking of evidence and the exclusion in the report of evidence favourable to Kear. Then the public report of ICAC condemning him. Then being forced to retire. of ICAC, search warrants, the obligation to answer Then all the powers and resources of the State in prosecuting him. Finally, the offence made by the State which presumed guilt unless Kear proved his innocence. In addition, the results of the allegation have been personally traumatic. When the deputy made the allegation, Kear was given

the option of being fired or resigning from the SES. He resigned and lost a substantial amount of his superannuation benefits. Over the past three years, he and his family have been put under tremendous pressure and he has been unemployed all of this time and had to borrow heavily to pay legal costs in defending himself. His career has been destroyed. Not all of these consequences may flow from every allegation, but many will. It may not be ICAC that makes the allegation, but some other organisation – Australian Securities and Investments Commission or the Fair Work Commission, or the Australian Taxation Office. An allegation is more likely these days when directors and senior managers are under an increasing range of potential liabilities, some common to all, such as sexual harassment and bullying, and others unique to their position, for example: insolvent trading. Destroyed is the presumption of innocence and the presumption of guilt takes its place with mere unsubstantiated allegations Correction: In the May issue of the LSJ , the introductory paragraph to the story “A Perfect Arrangement” mistakenly inferred that Thomas Jones had not worked as a professional musician. Jones, in fact, worked as a professional violinist for several years before becoming a lawyer, playing mostly in the US. enough for a conviction. Robin Speed, President, Rule of Law Institute

David Gonski, lawyer, Chairman of the ANZ Bank and Coca-Cola Amatil, once said: “I do not fear someone making an allegation against me but I do fear the consequences and time taken to disprove it.” What he meant by these wise words is illustrated by what happened to Murray Kear. Like me, you most probably have not heard of Kear, who was the head of the NSW State Emergency Service. For many years through his leadership he had built the organisation into a highly trained professional team. It was made up of about 10,000 volunteers and 225 employees. Then, in late 2012, he arranged to have a new deputy appointed as one of two deputy commissioners. Shortly afterwards the new deputy made complaints to the Independent Commission Against Corruption against the other deputy commissioner. These complaints were not pursued by ICAC at the time. Over the next few months the new deputy made a series of further complaints about the other deputy. It was not suggested that the complaints were not made in good faith, nor that Kear did not investigate them and take actions he thought appropriate. By reason of the worsening atmosphere between the two deputies, Kear warned them that he was considering terminating the employment of one or both. In May 2013, Kear terminated the employment of the new

ISSUE22 MAY2016

ISSUE22 MAY2016

BLAMEITON THEBRAIN

HOWNEUROSCIENTIFICEVIDENCE IS CHANGINGCASELAW INAUSTRALIA

LAWYERS:WHAT’SNEXT? WHYANEW INQUIRY INTOTHEFUTURE OFTHELEGALPROFESSION ISVITAL

INGANDHI’SNON-VIOLENTFOOTSTEPS THEROLEOFLAWYERS INPEACEFULPROTEST CRASHING,BURNINGANDLOVINGIT WHYFAILING ISTHEBESTEDUCATION MAKEHAYWHILETHESUNCORPSHINES ADAY INTHELIFEOFAN IN-HOUSEGIANT COMMONLAWUNDERTHESPOTLIGHT THEALRC’SLANDMARKFREEDOMS INQUIRY

LSJ05_Cover_spine_May.indd 1

21/04/2016 2:32pm

WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WINLUNCHFORFOUR at the Law Society dining room. E: letters@lawsociety.com.au Please note: we may not be able to publish all letters received. CONGRATULATIONS! RobinSpeed has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

12 LSJ I ISSUE 23 I JUNE 2016

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ISSUE 23 I JUNE 2016 I LSJ 13

Briefs NEWS

Examining the futureof lawyers

The world’s first artificially intelligent lawyer featured at the first inquiry session of the Law Society of NSW’s Future of Law and Innovation in the Profession (FLIP) project on 13 May. Law Society President Gary Ulman shared the news that artificially intellgent lawyer “Ross” had been hired to work at US law firm Baker & Hostetler. Ulman said “Ross” could read and understand language faster than a human lawyer, could postulate hypotheses when asked questions, research and generate responses, as well as mention references and citations to back up conclusions. Ulman told the inquiry that recent advancements in technology had sparked alarm among solicitors and prompted the Society to invest in an inquiry into the future of lawyers. He introduced the commission panel that includes Ulman, Jane Glowrey, Edward Santow and Katie Hocking. The panel heard from witnesses including Nassim Arrage, Chair of Community Legal Centres NSW; Doug Humphreys, Chair of the Law Society’s Government Lawyers Committee; Coralie Kenny, Chair of the Law Society’s Corporate Lawyers Committee; and Ricky Welsh, Coordinator of “The Shed” men’s health and resource centre. NSW lawyers Adam Johnston, Malcolm Heath, Katherine Grace, Dominic Woolrych and Lyn Lucas also spoke. The panel will pose questions to expert witnesses in a number of public sessions to be held until November. For more, visit lawsociety.com.au/flip

Clockwise from top: “Flip” panel Gary Ulman, Jane Glowrey, Katie Hocking and Edward Santow; solicitors at the first hearings of the inquiry; Adam Johnston; and Ricky Welsh. Photography: Jason McCormack

Gary Oliver, Chief Executive Officer of the Aboriginal Legal Service (NSW/ACT), said the cuts would hit Australia’s most disadvantaged groups hardest. “The significant drop in funding we’re facing next year will mean Australia’s poorest, most disadvantaged and most needy will have to renege their right to natural justice before the courts,” Oliver said. “In NSW alone we estimate 4,800 Aboriginal men, women and children will miss out on legal assistance in the first year.” Hewitt Whyman, Chair of Aboriginal Legal Service (NSW/ACT), is particularly concerned by how the cuts would affect children. “ABS statistics show more than half of Australia’s Indigenous population are under 20 years old,” said Whyman. “These kids need the opportunity to

move on past minor legal incidents so that they can finish school, go to university, and become the person they want to be. Instead, and this makes me so sad, the government is reducing our funding which means there are less lawyers available to assist our kids.” News of the cuts comes as the Law Council of Australia launches a new campaign for more legal aid funding. Rallies were held around Australia in National Law Week on 16-20 May. According to Law Council President Stuart Clark, the Productivity Commission’s advice in its recent A ccess to Justice Arrangements report was that money invested in legal aid would yield substantial economic savings for the Federal Government. The Law Council says the government has failed to heed this advice. The Law Council campaign continues.

BUDGET2016: ABORIGINALLEGAL SERVICES FACE $6MILLIONCUT Aboriginal legal services have warned they will be forced to axe key frontline staff if a proposed Federal budget funding cut of $6 million passes the Senate. The Federal Government has forecast a 6 per cent cut to funding for Aboriginal legal services nationwide from July 2017, with additional decreases in funding each year after that.

14 LSJ I ISSUE 23 I JUNE 2016

NEWS

SENIORLAWYERSCALL FOR DIVERSITYANDFLEXIBILITY INLEADERSHIP Good leaders “walk the walk” and lead by example to encourage diversity and flexible working practices, said four senior legal figures at a panel discussion on 10 May. “Leadership is about action, not just about talk,” said Lee- May Saw, barrister and President of the Women Lawyers Association. “Great leaders are authentic, inclusive and they empower their team to do their best work.” Other speakers at the Women Lawyers Association of NSW breakfast event at Corrs Chambers Westgarth in Sydney included Roslyn Toms, General Counsel and Company Secretary at NIB, Stacey Taylor, Director and Counsel at American Express, and Michael Chaaya, Partner at Corrs Chambers Westgarth. Alison Jones, a senior solicitor at Corrs Chambers Westgarth, was panel moderator and posed questions about what made a good leader. The panel agreed that senior figures in law firms and in-house teams led by example to create positive culture changes. They

encouraged flexible work practices, for example, by working flexibly themselves. Chaaya, who took part in the “Equilibrium Man Challenge” to promote flexible work practices, emphasised that flexibility for men and women was essential to encourage diversity in law. “Until we recognise that men also need flexibility to contribute equally to family life, there will remain a barrier to women and working mothers to contribute equally in professional life,” he said. (From left) panel moderator Alison Jones poses questions to Lee-May Saw, Michael Chaaya, Stacey Taylor and Roslyn Toms.

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ISSUE 23 I JUNE 2016 I LSJ 15

Briefs NEWS

NewHumanRights Commissioners appointed

ANU lawgraduate earns prestigious Harvard scholarship Sibella Matthews, a 2014 graduate

the Executive Director of Community Legal Centres NSW, Alistair McEwin (pictured right), was appointed Disability Discrimination Commissioner. McEwin is the former Chief Executive Office of People with Disability Australia and, being legally deaf, brings to the role personal experience of issues confronting people with disability. Nassim Arrage, Chairperson of CLCNSW, was encouraged by the news that two leaders of community legal centres – Santow and McEwin – were appointed. “With these appointments it is clear that the Attorney-General has great respect for the work of community legal centres,” said Arrage. “It is all the more bewildering that Senator Brandis is planning on cutting the funding for community legal centres from July 2017 onwards.”

from ANU College of Law, has been awarded an esteemed Robert Gordon

The CEO of the Public Interest Advocacy Centre (PIAC), Edward Santow (pictured above left) has been appointed the new Australian Human Rights Commissioner. A leading human rights advocate at PIAC for the past five years, Santow will retire from PIAC at the end of June to begin his new role. Former Liberal Health Minister Kay Patterson was appointed Age Discrimination Commissioner, while

Menzies Scholarship for postgraduate study at Harvard University in the US. “I hope to address the structural deficiencies in our society that further punish and marginalise children born into situations of socio-economic disadvantage and neglect.” Menzies scholarships are valued at US$60,000 and are Australia’s most prestigious national awards for postgraduate study in the US. Matthews, who is a policy advisor to the NSW Attorney-General Gabrielle Upton, will begin a postgraduate degree in public policy at Harvard’s Kennedy School of Government later this year, focusing on the protection of children’s rights. The 26-year-old solicitor hopes her Harvard experience will help to develop skills and leadership to drive change in Australia’s approach to child protection and juvenile justice. “I hope to address the structural deficiencies in our society that further punish and marginalise children born into situations of socio-economic disadvantage and neglect,” Matthews said. “I’m driven by my personal philosophy that the most valuable investment a society can make in the pursuit of social justice is in the well- being of its children.”

THELAWSOCIETY’SNEWRAP The Law Society has launched the 2016-19 Indigenous Reconciliation Strategic Plan. The plan includes a commitment to maintain the Society’s Indigenous Issues Committee, identify opportunities to provide training for solicitors who provide legal services to Aboriginal clients, provide cultural competency and awareness training for Law Society Council members, management and staff, and establish an Indigenous Solicitors’ Fund to provide members with the opportunity to help Indigenous students and lawyers. SILLYLAWSANDLAUGHSFORACAUSE It must be tough living in West Australia, given that it’s illegal to be in possession of more than 50kilos of potatoes at any one time and singing offensive ballads (does that include Adele songs?) in public could land you a hefty fine. These and other ridiculous laws – some with more serious ramifications than others – were up for discussion at the Giant Dwarf theatre at a fundraiser for Justice Connect in May. Lawyer and comedian Julian Morrow, Dr Justine Rogers and Tom Ballard discussed the potential impacts of new laws that restricted the right to protest, what happens to asylum seekers who arrived by boat before the introduction of offshore processing, and why victims of family violence could be liable for massive housing debts – all for a good cause. Professor Gillian Triggs, Human Rights Commission President and Justice Connect patron, opened conversation with some insights from the frontline. To find out more or donate, visit j usticeconnect.org.au

16 LSJ I ISSUE 23 I JUNE 2016

NEWS

BRINGINGTHE HUMANITYBACK TOBUSINESS Fiona Craig, the LSJ ’s career advisor, hosted a business networking event in Sydney on 19 May. Craig has launched SmartWomen Connect, a community of professional women committed to bringing the human connection back to business. The education and events program is designed to give professional women everything they need to thrive in their career. To find out more and see a complete list of upcoming events, see smartwomenconnect.com.au/ Congratulations Fiona!

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ISSUE 23 I JUNE 2016 I LSJ 17

Briefs NEWS

UNSWto put students through extrapaces innew admission process The University of New South Wales (UNSW) has changed how it selects students wishing to study law, with a new law admission test (LAT), being held around the country on 26 September. The test will be used for selection of undergraduate law students for 2017. UNSW says the test has been developed to “assess the aptitudes and skills needed to succeed in the law program at UNSW, including thinking critically, analysing material and organising and expressing ideas clearly and fluently”. Both the LAT and academic results (such as the ATAR) will be used to assess applicants for entry to UNSW Law from 2017. A sliding scale will be used so students with very high academic results require a lower LAT score and those with lower academic results require a higher LAT score. The ATAR cut-off will remain at 95. UNSW has also announced that some bonus points will be applicable, but some, such as those for elite athletes and performers, will no longer be recognised. For more, see law.unsw.edu.au/ future-students/undergraduate/law- admission-test-lat

Cross-examination Test your legal knowledge ...

1. What is the name of the Panamanian law firm that the “Panama Papers” recently were leaked from?

2.

In which Australian capital city is it illegal to spit in public?

3.

What is the difference between obiter dictum and ratio decidendi ?

4.

What does DNA stand for?

5.

In Victoria, it is illegal to wear pink hot pants on Sundays after a certain time. What time is this?

6.

Which international agency created the anti-doping code adhered to in the Olympics?

7. Australia’s legal system is derived from which country?

8. In which year were appeals to the Privy Council abolished?

9.

What does the Latin term prima facie mean?

10. How do punitive damages differ from compensatory damages?

Answers on page 65.

VALEROSSRAY, FORMER PRESIDENTOFTHELAW COUNCILOFAUSTRALIA William “Ross” Ray, QC, died in a quad bike accident on his farm in Victoria on 23 May.

Ray was President of the Law Council of Australia in 2007/08, and the inaugural Chair of the South Pacific Lawyers’ Association. He strongly advocated for the rule of law and had the vision to see the importance of strengthening justice in the Asia-Pacific region. Ray was a leading national practitioner in the field of Work, Health and Safety and a member of the Australian Bar Association Advocacy Training Council. “Ross wasn’t just a brilliant legal mind, he was a close friend and confidant of many in the legal community,” said Law Council president Stuart Clark. “His sharp wit, down- to-earth character and great sense of humour, was cherished by all who met him.”

18 LSJ I ISSUE 23 I JUNE 2016

NEWS

six minutes with

ALISON LAIRD LEGAL PROJECT MANAGER, DLA PIPER

Alison Laird is the national contact for a new flexible lawyering solution at DLA Piper. Her firm recently joined forces with two of the world’s largest NewLaw businesses - AdventBalance and Lawyers On Demand - to build an on-demand legal resource pool.

How does the partnership between DLA Piper and AdventBalance/Lawyers on Demand (LOD) work? DLA Piper wanted to deliver more flexibility to our clients by capitalising on the best that “old law” and “new law” has to offer. So, in collaboration with AdventBalance, we created a flexible lawyer pool that can be dipped into when there is need for a flexible resource. AdventBalance manages the lawyer pool and carefully matches lawyers to the right assignments, while DLA Piper provides the lawyers and encourages alumni to join AdventBalance if it is the right thing for them. What prompted DLA Piper to develop this service? Entering the flexible-lawyer market was a key part of our innovation strategy, so engaging AdventBalance and LOD – the market leaders in this field – seemed the best way to achieve this. This approach allows DLA Piper to focus on our core business and what we do best, while leveraging best practice in the flexible resource market. Flexible lawyering will address three needs for DLA Piper: resourcing peak demand with optimum efficiency; supporting client-secondment arrangements; and enabling us to retain core DLA Piper-developed talent by providing flexible working

opportunities for current lawyers as well as alumni. We also hope in time it may provide a path back to the firm for some lawyers. What kind of clients are using it? So far, the clients using this secondment service are diverse – ranging from a multinational insurance company, to a pro bono client, to the owner- operator of Europe’s largest network and global cloud services platform. We have also had a team of lawyers deployed on a complex real estate transaction to deliver due diligence advice, and a range of internal secondments into various DLA Piper practice areas. What do the lawyers do when they are not on secondment? It really depends on what each individual lawyer wants to do. One advantage of this collaboration is that it gives DLA Piper alumni a wider range of career choices that accommodate flexible working practices. Some lawyers wish to work on fewer assignments with a more flexible basis around family, travel or other commitments, while others may move quickly from secondment to secondment, taking advantage of the broader role opportunities offered. There is also the option to work with DLA Piper in-house, to provide extra firepower as needed on major matters when we face a peak in demand.

ISSUE 23 I JUNE 2016 I LSJ 19

Briefs NEWS

mind your ethics

TIPS AND TRICKS FOR PLAYING BY THE RULES ...

For the full round-up of Law Society advocacy, see page 68.

CLIENTCONFIDENTIALITY

Asbestos insulation

The Environmental Planning and Development Committee and the Property Law Committee made a joint submission to NSW Fair Trading on the proposed regulatory amendments to give effect to the government’s scheme to deal with loose-fill asbestos insulation in residential properties. The committees support the establishment of a public register of residential properties affected by loose-fill asbestos insulation. DeferredProsecutionAgreement (DPA) Scheme The Law Society provided a submission to the Attorney-General’s Department in response to a public consultation regarding whether Australia should implement a DPA scheme for serious corporate crime. The submission broadly supported the position that a DPA scheme should be introduced in Australia for corporations (but not individuals), in relation to corporate crime offences. However, a number of safeguards would need to be put in place, including ensuring judicial scrutiny of the process. submission to the Minister for Police and Justice on the (Serious Crime Prevention Orders) Bill 2016 and Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016. Copies were sent to the Premier, Attorney-General, counterpart shadow ministers and members of the cross bench. These Bills have now passed both Houses, without amendment. The committees submitted that the proposals under the Bills appear to be an attempt to circumvent the usual protections of criminal justice procedures. Crimes bills The Criminal Law, Juvenile Justice and Human Rights Committees made a

BY LINDEN BARNES , SENIOR ETHICS SOLICITOR, LAW SOCIETY OF NSW

Q. I have just received a subpoena to give evidence. Can I be an ostrich and ignore it? A. Sorry, but no, solicitors cannot ever ignore a court order.

Most of us have issued subpoenas to give evidence. However, it feels very different when you are the recipient of a subpoena and can be quite a scary prospect. What happens when it is not just a matter of discomfort but an ethical issue? What if the subpoena relates to a former or current client? Solicitors must be very careful of our client’s confidentiality. Rule 9 of the Conduct Rules sets out our obligations of confidentiality and also the limited exceptions. Those exceptions include compulsion of law but, even with a subpoena, we would need to consider how much information it compels us to disclose. Does it cover privileged information, for instance? When it is a current client, we must also consider Rule 27. Is our evidence material to a contested issue? Are we the advocate? Would the administration of justice be prejudiced? So, the ostrich approach of burying our head in the sand doesn’t work when you receive a subpoena. Solicitors need to be more like the owl, looking in every direction for all our obligations. On 6 May 2016 , the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Bruce Vernon Dennis be removed from the roll of legal practitioners, and that he pay the Society’s costs as agreed upon or as assessed on a party and party basis. On 3 May 2016, the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Juris Liepins be removed from the local roll, and that he pay the Society’s costs. On 28 April 2016 , and pursuant to s.82(1)(c) of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to suspend to 30 June 2016 the practising certificate of Michael Leon Kinchington. On 28 April 2016, and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, Solicitor, as Manager of the law practice known as Byrne Family Lawyer for a period of two years. PROFESSIONALNOTICES

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CAREER MOVES

MEMBERS ON THE

DANIEL MEYEROWITZ-KATZ Appointed to Associate Solicitor Levitt Robinson Solicitors

JOSHUASAUL KANGISSER Appointed to Associate Solicitor Levitt Robinson Solicitors

MARTINDEUTSCH Joined as Partner, Dispute Resolution & Litigation Group Holding Redlich, Sydney

AYMANGUIRGUIS Appointed to Partner, Competition K&L Gates, Sydney

PAULJAYNE Joined as Partner and Head of Environment, Planning and Government Division Madison Marcus Law Firm

KARWANESKERIE Appointed to Partner, Government Sparke Helmore Lawyers, Sydney

MARKWILLIAMSON Appointed to Partner, National Corporate Practice Piper Alderman, Sydney

AVRYLLATTIN Promoted to Partner, Corporate & Insurance Clyde & Co, Sydney

JANETTEMCLENNAN Promoted to Partner, Insurance Clyde & Co, Sydney

HELENAMANATIADIS Appointed to Consulting Principal Nexus Law Group

JAYNEHUMPHREYS Appointed to Consulting Principal Nexus Law Group

HELENEDE Now Principal Ede Family Law

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

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Briefs OUT AND ABOUT

LEGALAIDMATTERS LAUNCH The Law Society of NSW and the NSW Bar Association jointly launched a legal assistance funding campaign on 19 May. The event was part of Legal Aid Matters, a national campaign aimed at ensuring the Federal Government responds decisively to Australia’s legal aid funding crisis.

PHOTOGRAPHY: CHRIS GLEISNER

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OUT AND ABOUT

ISSUE 23 I JUNE 2016 I LSJ 23

Briefs HOT TOPIC

Offshore processing has been a complete failure, writes MADELINE GLEESON , Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW. Offshoreprocessing: failing thosewe shouldprotect

The stories of these four young men sit in stark contrast to those of another group who sought asylum in Australia by boat, four decades earlier. On 26 April 1976, Lam Binh, 25, steered his leaky wooden fishing boat up and down the rugged coastline. Beside him stood his 17-year-old brother and three friends, aged 16, 17 and 25. In the hull below, three pumps worked valiantly to keep the rickety vessel afloat. They had left Timor 16 days earlier, with nothing to guide them but instinct and a page torn from a school atlas. They were sure the lights and laughter drifting across the water were from Darwin, their destination lying just off the edge of the atlas page, but they could not see anywhere to land. And so they continued, rounding into Darwin Harbour at some point the next day, still unnoticed. For hours, they coasted along until at last coming to the bustling wharf at Stokes Hill, where the young men found somewhere to dock and a fisherman to point them in the direction of the “immigration people”. When Australian government officials boarded boat KG4435, Lam Binh finally delivered the speech he had practised so many times before. As reported by Bruce Grant in T he Boat People , Lam Binh said: “Welcome on my boat. My name is Lam Binh and these are my friends from South Vietnam and we would like permission to stay in Australia”. It was 27 April 1976. Australia had just received its first asylum seekers arriving by boat. These five young men heralded the first wave of boats carrying people seeking asylum to Australia after the fall of Saigon on 30 April 1975 and the establishment of communist regimes in Vietnam, Cambodia and Laos. The Indochinese refugee crisis that followed saw more than three million people displaced from these countries over the

T he human face of Australian immigration law can be hard to see, hidden away offshore. For almost four years it has been obscured behind the high walls of closely guarded detention centres in one of the most remote parts of Papua New Guinea (PNG) or on the far-flung island nation of Nauru where visa restrictions keep out all save a select few. The human face is hidden, but it is there. In April 2016, Omid Masoumali, 23, set himself on fire in front of a group of UNHCR officials visiting Nauru. Video footage captures him lurching forward, ablaze. Other footage shows him pacing inside the Nauruan hospital, severely burnt and screaming uncontrollably. His distressed family is there. A witness vomits into a bucket. Two days later, Masoumali died in a Brisbane hospital. Within a fortnight, another young man aged 26 would be dead on Nauru. The man checked in to the hospital where Omid had been just days earlier, then had a series of heart attacks and died before he could be evacuated. These two join another pair of men in their 20s who have died as a result of their detention offshore, this time on Australia’s other offshore processing island – Manus Island in PNG. In February 2014, 23-year-old Reza Barati was beaten to death during a

riot at the Manus detention centre. Witnesses say he had been trying to run back to his room at the time to hide from the violence engulfing the centre. A group of men – mainly from PNG, but perhaps an Australian or New Zealander, too – had converged and attacked. Australian security guards later sobbed as they stood on a dark pier nearby, watching medics try to revive Reza at a makeshift triage centre. By then, there was nothing they could do. Six months later, Hamid Khazaei, 24, also would succumb to a preventable death, after a bacterial infection from a cut on his leg was left untreated and spread to his bloodstream. Doctors on Manus had begun calling for an urgent medical evacuation as soon as they realised the gravity of his condition, but they were stonewalled or ignored by the Australian immigration department. By the time approval finally came through and Khazaei was loaded onto a plane bound for Australia, he was comatose and believed to be in the early stages of brain death. A witness said his body had swollen beyond recognition, and was completely covered up during the flight. When he landed in Queensland, Khazaei’s vital signs were deemed “not compatible with life”. A few days later, with the consent of his family, his life support was switched off.

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HOT TOPIC

The centres on Nauru and Manus have become gaping sinkholes into

next two decades. It would also become a period of unmatched openness and generosity in Australia’s treatment of people fleeing persecution in the region. Rather than closing up in the face of mass displacement, Australia became more open – encouraging countries in South-East Asia to continue to grant asylum seekers temporary protection while expanding global resettlement programs. Between 1975 and 1981, Australia resettled almost 52,000 Indochinese refugees, most of whom were assessed by Australian officials in refugee camps in Malaysia, Thailand and Indonesia, and flown to their new homes around the country. Together with the few who had chosen to come directly, risking the journey by boat, these refugees were let in, housed, clothed, fed and supported as free and permanent new members of Australian society. F ew asylum seekers arriving by boat after this time would receive such a welcome. By 1989, asylum seekers arriving by boat without visas began to be detained while their claims for refugee status were processed, followed by the introduction of mandatory detention by the Keating Government in May 1992. Under the Howard Government, Australian immigration policies became even harsher. Temporary protection visas were introduced in place of the permanent ones that had been offered previously, naval operations began to turn back boats at sea, and offshore processing in the Pacific was introduced for the first time. Australian immigration law and policy now are even more extreme. Boats are turned back more forcefully than before, with the full backing of domestic law (even if such conduct violates international law, including the law of the sea). A thick veil of secrecy hangs over everything. Whistleblowers are cowed into silence by threats of jail time. Offshore processing, reinstated after a four- year hiatus in 2012, now takes a more drastic form than ever before. Whereas previously

there was some flexibility about resettlement – some people processed offshore came to Australia, others went elsewhere – Prime Minister Kevin Rudd changed everything on 19 July 2013. With just seven weeks to the Federal election, Rudd announced that no asylum seeker who arrived by boat from then on would be given the chance to settle in Australia. Offshore processing would continue and anyone found to be a refugee would have two options: settle in PNG (or another country that would take them) or go home. This policy, which continues, for the first time in this country’s history closed off Australia completely to refugees arriving spontaneously at the border by sea. Responsibility for processing and settling these refugees supposedly shifted entirely to other countries in the region. Unsurprisingly, this has not worked. A handful of men have tried to integrate in PNG, but a single success story is yet to emerge. Just four refugees were resettled elsewhere – a man and his teenage son to Canada (made possible only because his wife had been granted asylum there and was entitled to family reunification) and two to Cambodia. A further three refugees originally sent to Cambodia gave up and went home, despite the risks. Meanwhile, the centres on Nauru and Manus have become gaping sinkholes into which four successive Australian governments have poured billions of dollars and a few thousand vulnerable lives. And for what? There is no endgame. The refugees on Nauru must leave eventually, but there are no permanent resettlement countries on the table. The men on Manus refuse to stay in PNG, even if they are offered a place there. Australian policies have done nothing to address the growing number of displaced people in the region, or to create safe and legal channels for people to reach protection without having to get on a boat. Offshore processing has been a complete failure. It is time to talk about alternatives.

which four successive Australian

governments have poured billions of dollars and a few thousand lives. And for what?

There is no endgame. MADELINE GLEESON

This article is based on Madeline Gleeson’s new book Offshore: Behind the Wire on Manus and Nauru, NewSouth Books.

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Briefs IN FOCUS

A sk lawyers to guess the world’s top four illegal traded commodities. The top three are easy: drugs, counterfeiting and human trafficking. However, number four, wildlife crime, may come as a surprise. Wildlife crime has been described as “a global environmental crisis, pushing several species to the brink of extinction”. One animal in crisis is the rhino, whose horn is one of the world’s most expensive commodities, worth more by weight than gold or diamonds. By comparison with the price of gold (US$41,000/kg), rhino horn rose to a staggering US$103,685/kg in 2015. It is little wonder, then, that the Convention on International Trade in Endangered Species in Wild Fauna and Flora Secretariat (CITES) estimated that rhino poaching in South Africa increased by as much as 8,000 per cent between 2007 and 2014. The high price is fuelled by the mistaken belief that Time is of the essence: The Australian plan to save rhinos from extinction

Biodiversity Conservation Act 1999 (Cth) . Since the 1970s, most rhinos have been listed in CITES Appendix I, which identifies species threatened with extinction. While some rhinos appear in Appendix II, trade in all rhino horn treated is as though that rhino species is listed in Appendix I. Trade in rhino in Australia is covered by a strict licensing regime and rhinos can be imported only where they are not used for commercial purposes and the importation is not detrimental to the survival of the species. While legally speaking, there are safeguards in place for trading in rhinos, poaching is at crisis point because “the money on the table is so great”, according to Ray Dearlove, founder of The Australian Rhino Project (TARP). TARP has proposed its own solution to the crisis: to bring 80 rhinos to Australia over four years as breeding stock to serve as an insurance population in case the species becomes extinct in the wild. TARP was founded by Australian businessmen Ray Dearlove and Allan Davies in 2013. TARP met with staff at the University of Sydney and Taronga Zoo in 2013 and commissioned a feasibility study into whether it could import rhinos from South Africa into Australia. The feasibility study considered the legal landscape as well as practical issues of translocating such large animals, including biosecurity. The feasibility study confirmed that the project was viable. John Shields, Deputy Dean of the University of Sydney’s Business School, says the rhino crisis is “a global challenge [needing] a global response” and that the university is “very proudly involved” in TARP. With the project confirmed as feasible, TARP progressed through protracted government consultation as well as practical commercial issues.

A team of experts, including Mark Stanbridge, a partner at Ashurst, is planning to bring 80 rhinos to Australia to help preserve the species. CATERINA CAVALLARO reports.

rhino horn, which is made of keratin, cures illnesses and promotes wellbeing. Previously, demand for rhino horn came from places such as Yemen, where rhino horn is crafted into traditional daggers. Demand is now high in Asia, primarily Vietnam and China, where rhino horn is used in ornamental carvings and traditional medicine including as “cures” for cancer, hangovers and impotence. TRAFFIC, the monitoring partnership between the World Wildlife Fund and the International Union for Conservation of Nature, reports that the demand for rhino horn “as a luxury purchase by upper-middle class citizens in Vietnam, including businessmen, celebrities and government officials” is the strongest driver of the current rhino poaching crisis. CITES regulates trade in rhinos. Australia has implemented the CITES and registers a list of CITES species under the Environment Protection and

PHOTOGRAPHY: RICK STEVENS

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