LSJ- June 2017
ISSUE 34 JUNE 2017
THE BURDENOF UNCONSCIOUS BIAS ARE LAWYERS AND THE LEGAL PROFESSION PROGRAMMED TO EXERCISE PREJUDICE?
GOLDENGAVEL2017 ALL THE LAUGHS FROM THE EUROVISION OF THE LEGAL PROFESSION
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24 INFOCUS Kate Allman glimpses life on the “inside” by spending a night in youth detention 26 HOTTOPIC Will Australia legalise euthanasia? Nicholas Cowdery QC weighs in on the debate 28 COVERSTORY Eliminating unconscious biases will help the Australian legal profession better represent our society, writes Dominic Rolfe
34 PROFILE An Israel-based lawyer oers insights into the country’s reputation as an innovation hotspot 38 GOLDENGAVEL The best gags and hottest zingers from the 2017 Golden Gavel competition 42 ASKFIONA Why should lawyers be on LinkedIn? Fiona Craig oers 10 good reasons for joining the popular network
Meet a tax lawyer who finds arranging plants and flowers bloomingly therapeutic 52 HEALTH Hearing is something most of us take for granted until it’s gone. Learn about protecting one of your most important
assets 56 LUXURYTRAVEL
Ute Junker oers the must- do list of places to eat, drink and walk your way around Auckland
ISSUE 34 I JUNE 2017 I LSJ 3
Break the cycle of negativity by taking time to recalibrate
68 ADVOCACY: THE LATEST IN LAW REFORM 71 PERSONAL INJURY: NEW CTP SCHEME FOR NSW 74 RISK: THE POWER OF THE FILE NOTE 75 PROPERTY: TRANSITIONING TO E CONVEYANCING 76 PROPERTY: STRATA RENEWAL REFORMS 78 WILLS : THE PROS & CONS OF INTERNATIONAL WILLS 80 MEDIATION: COURT ORDERED MEDIATION 82 EMPLOYMENT: EMPLOYER’S BREACH & RESTRAINTS 84 INSURANCE: NEW CODE OF PRACTICE 86 HUMANRIGHTS: AUSTRALIA SIGNS TORTURE TREATY 88 CONTRACT: THE HCAON AMBIGUITY INCONTRACTS 90 LITIGATION: PRELIMINARY DISCOVERY 92 CASE NOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS
8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 21 EXPERTWITLESS 21 THE LSJ QUIZ 22 OUTANDABOUT 44 CAREER101 46 DOINGBUSINESS Associate Jane-Elise Harabopoulos 48 ADAY INTHELIFE Police prosecutor Richard McDonald on policing and law
Why caeine may be the best legal drug around
Luxury lodge life in New Zealand, where sheep- shearing is optional
Books, events and our movie giveaway
64 NONBILLABLES Fitness junkie James Sloan says competition helps him focus 106 AVID FOR SCANDAL
Two guest writers see the humour in budgets
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A WORD FROM THEASSOCIATEEDITOR
One of the most well attended events at the Law Society recently was a networking evening for solicitors and women barristers working in civil litigation, with a focus on commercial, equity, industrial and employment law. e event was one of the first in response to the Law Council’s National Model Gender Equitable Briefing Policy which came into effect last year. e policy includes interim and long-term targets with the ultimate aim of briefing women in at least 30 per cent of all matters and paying them 30 per cent of the value of all brief
Managing Editor Claire Chaffey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen
fees by 2020. Our cover story on page 28, “ e burden of unconscious bias”, written by journalist Dominic Rolfe, explains how bias, conscious or unconscious, has moved beyond sexism. We look forward to your views in emails and letters in response to this. You’ll notice some changes in our legal update pages from page 67 of this issue. We have given the pages a refresh and we hope you enjoy the new design. Finally, it’s a pleasure to include a report and photographs from the funniest legal event of the year, the NSW Young Lawyers 2017 Golden Gavel competition. See pages 22 and 23 for photos and pages 38-41 for a full report. Our managing editor, Claire Chaffey, has taken a well-earned break for this issue. She will be back on board for the July issue of the LSJ . anks for reading.
Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Dominic Rolfe is a regular contributor to the LSJ . In this issue, he writes about the issues around unconscious bias and the ways firms and individuals are dealing with it. Dom also profiles, on page 50, a solicitor who combines tax law and the joy of floristry. Cover story p28
Fiona Craig is the founder of
Kye Tran-Tsai is Special Counsel
Nicholas Cowdery AM QC is Visiting Professorial Fellow, UNSW Law, and Former Director of Public Prosecutions, NSW. In part two of a series in the LSJ , he looks at the state of play of laws for voluntary assisted dying in Australia. Hot topic p26
SmartWomen Connect and a career coach. In this issue, she o ers 10 reasons a LinkedIn profile is a must-have for solicitors, whether you are thinking of changing jobs or trying to build an internal profile. Career p42
at Nolan Lawyers & an adjunct lecturer in the Applied Law Program at the College of Law. She delves into recent strata reforms which allow for the collective sale or redevelopment of an entire strata scheme. Property law p76
Cover image: iStock
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
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6 LSJ I ISSUE 34 I JUNE 2017
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o one needs to remind us in the legal profession of all the research concluding that jail is an ineffective tool to deter crime – indeed prisons have been referred to as “universities of crime”, so effective they seem at encouraging recidivism.
Jailing people is also very costly, so it is time that we tackle the problem and find ways to reduce the record numbers of people filling our jails.
Investing more funds in early intervention, prevention and diversion programs that can help to address the underlying causes of crime is likely to achieve safer communities and reduce rates of reoffending. Sadly, despite a reduction in most categories of crime, a lack of resources for non- custodial options, especially in regional NSW, has led to more offenders being sentenced to jail, albeit for short periods, for relatively minor offences. e need to expand the availability and use of community-based sentencing alternatives in accordance with this aimwas the subject of a recent policy paper by Just Reinvest NSW, to which we were pleased to contribute. We have also called upon the NSWGovernment to lead the way in addressing the level of Aboriginal over-representation in jails by setting justice-specific targets. Our new webpage on Indigenous justice issues also provides resources and information including access to our Indigenous Reconciliation Strategic Plan 2016-2019 Plan. Measures including more flexible intensive corrections orders (ICOs) are a more focused way to address underlying causes of offender behaviour. e NSW Sentencing Council recently pointed out that ICOs are under-utilised, particularly in regional and remote communities. Diversionary sentencing, rehabilitation programs, drug and alcohol and mental health programs have been shown to improve the prospects of offender rehabilitation, yet funding for alternatives to full-time imprisonment remains inadequate. Measures specifically tailored to address the needs of Indigenous people including programs that couch redress and rehabilitation in a community setting, greater use of specialised courts like the Koori Court introduced by the Children’s Court in Parramatta and reviewing bail laws and the operation of apprehended violence orders could assist in closing the justice gap. We are also working hard to promote diversity and inclusion in the legal profession. Unconscious bias is not merely something to be considered by decision-makers or recruiters, it is something we must all turn our minds to when reflecting on our own behaviour in the workplace. I urge you to look at the Law Council of Australia and Symmetra’s unconscious bias program which has been customised to help lawyers understand and address unconscious bias. We also have produced several new resources on flexible work arrangements to assist practitioners and address practices that can prevent women from progressing in the profession. It’s pleasing to note that our Charter for the Advancement of Women in the Legal Profession, which promotes flexible working as one means to break down barriers to women’s advancement, now has 134 firms signed up.
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ISSUE 34 I JUNE 2017 I LSJ 9
LETTERS TO THE EDITOR
O -the-plan purchase sunset dates Many practitioners would be aware of Section 66ZL(3) Conveyancing Act 1919 which limits the right of a vendor (developer) to rescind an o-the-plan contract where the subject lot has not been created by the ‘sunset date’ stated in the contract. The section was conceived as a result of some developers using the exchange of contracts to source finance for the development but then rescinding under the sunset date provisions and re-selling at a higher market rate after two or three years. I have recently been involved in an o-the-plan purchase in which the contract not only includes a sunset date but also a “presales satisfaction date”, being a date which is 18 months after
the exchange of contracts and may be extended by 12 months. The relevant contract clause says “prior to the resale satisfaction date the vendor can rescind if the vendor forms the opinion that satisfactory presales have not been achieved”. The concept of presales targets is dierent to sunset date delays. However, it does provide a creative way for a developer to have an alternative right to rescind now that section 66ZL is in place. In advising clients (often young first-home buyers), we need to keep in mind that they are committing to a purchase which, in eect, excludes themselves from an alternative purchase for a lengthy period with the possibility of facing a ‘presales satisfaction rescission’ and then having
to restart the process in a potentially higher marker. Should section 66ZL be broadened to cover this? Mark Squire Boulton, Julian, Squire Unsung heroes Having read Stephen Walmsley’s book The Trials of Lionel Murphy , I was delighted to read your cover story in the LSJ April 2017 edition. The Trials of Lionel Murphy brings to mind a significant episode in Australia’s legal and political history. However, buried in the story is a three-part display of heroism in adherence to integrity in the law. First there was Clarrie Briese. Briese was the Chief Stipendary Magistrate
HOLLYRANSOMANDBERNARDSALTTACKLETHE THORNY ISSUEOFGENY INTHEWORKPLACE THEGREAT MILLENNIALDEBATE
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FROMWALLSTREETTOPROBONO ADAY INTHELIFEOFNERIDAHARVEY WHYGOODFOODISBRAINFOOD HOWDIETDRIVESMENTALHEALTH CHILDRENANDTHEFAMILYCOURT IS ITTIMEFORDRAMATICREFORM? AHISTORYOFFAILEDREFERENDUMS WHYCONSTITUTIONALCHANGE ISHARD
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org Please note: we may not be able to publish all letters received.
but at that time, as with all magistrates, a public
CONGRATULATIONS! Michael Best has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
LESSONS FROM A HIGH COURT SCANDAL
TheHighCourt’s thirdmost senior judge, theNSWChiefMagistrate, twoDistrictCourt judges, theChief Judgeof theDistrictCourt, theChief Judgeof the Land andEnvironment Court, and theGovernor-General– the caseofHighCourt judge and Laborhero Lionel Murphyhas it all, includinghis tragicdeath from cancer just anhour afterhehandeddown his final judgments.Thirty years since thebiggest scandal inAustralian legalhistory, the trialsofMurphyoermany lessons,writes retired judge STEPHENWALMSLEYSC .
W hen judges are appointed to theHighCourt ofAustralia,most Australianshavenever heard of them, but the appointments are rarely controversial. When JusticeLionelMurphywas appointed to theHighCourt on 14 February1975,however,hewas one of the best knownpoliticians in the country.Hewas bynomeans thefirst politician appointed to the court, but of thosewhohad beenpoliticians, even including SirGarfieldBarwick,hewas probably themost controversial. e legalprofession appreciatesmore thanmost the importance ofhaving highly competent anduncontroversial judges, especially on theHighCourt. HighCourt appointments, itwas less thanwholehearted in itswelcome for Murphy. eVictorianBar’swelcome came after a rare internaldebate about whetherhe should bewelcomed. Although the legalprofession is usuallywarm in its celebration of
JusticeLionel Murphyserved on theHighCourt for10yearsand eightmonths andwas trialled forattempting to pervert thecourse of justice.Hedied in1986, justan hourafterhis last judgmentswere delivered.
JusticeMurphy servedon theHigh Court for10 years and eightmonths, dying from canceron21October1986, just anhour afterhis last judgmentswere delivered.For two-thirdsofhis time as aHighCourt judgehewas involved personally in litigation concerning allegations abouthispersonal conduct. For the last22monthsofhis life,he sat foronly threedays. efirst four yearshewas aHigh Court judge,Murphy, alongwith formerPrimeMinisterGough Whitlam and formerWhitlam GovernmentministersRexConnor and JimCairns,was forced tofight allegations that theyhad committed criminal conspiracies to avoid compliancewithCommonwealth laws concerning the raising ofmoneyby the Commonwealth. iswas theprivate prosecution laid by Sydney solicitor Danny Sankey,which arose from the loans affair (see Sankey vWhitlam (1978) 142CommonwealthLawReports1 ).
Sankey’sprivateprosecutiondidnot stopMurphy from sitting as a judge, buthewas required to attend court whenhis committalproceedingswere heard at theCourt ofPetty Sessions in Queanbeyan. e Sankeyprosecution was launched on 20November 1975, justninedays after thedismissal of theWhitlamGovernment.But it wasnotuntil early in 1979when the Queanbeyanmagistratehearing the case,DarcyLeo, found thatnone of the accusedhad a case to answer, and the case against themwasdismissed. B y1983,Murphywas the country’s thirdmost senior judge. InFebruary 1984, eAge publishedwhat purported to be transcripts ofphone calls illegally recorded byNSWpolice. eAge tapes, as they became known, contained salaciousdiscussions inwhich a judge apparently bragged to a solicitor friend about some sexual and drinking exploits.Neitherwasnamed but itwas soonpublicly known that Murphywas the judge. stopMurphy from sitting as a judge,
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30 LSJ I ISSUE32 I APRIL2017
ISSUE32 I APRIL2017 I LSJ 31
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.
servant, and therefore very much exposed to governmental pressure for appointment. Justice Lionel Murphy of the High Court made friends with Briese and understandably such a friendship between Magistrate and High court Justice was pleasing to Briese. Additionally, Briese saw the opportunity to seek the influential assistance of Justice Murphy towards securing an independence of the magistracy. Justice Murphy was very receptive to this. However, in the course of their meetings it became apparent to Briese that Murphy was, in Briese’s opinion, seeking to aect the course of justice in committal proceedings involving one Morgan Ryan in the Local Court. Briese did not allow this attempt at influence to aect him in any manner, and the issue of attempted influence remained dormant until Briese’s name was mentioned in The Age tapes when Briese was called to comment on the matter. Briese knew his reporting would imperil his friendship with Justice Murphy, and might also aect the push to independence of the magistracy and would certainly involve him in great controversy. Nevertheless, Briese called it for what he saw it to be, that is, attempts by Justice Murphy to aect or pervert the course of justice. Briese, through his courage and integrity, set himself on a course of great travail so well dealt with in Stephen Walmsley’s book. The second example of heroism was that of Judge Paul Flannery (for whom we acted). Flannery had shared chambers with Murphy for many years and was on friendly terms with him. More especially, Flannery had attended Waverley College with John Foord, and had remained good friends while both were at the Bar, and then subsequently as District Court judges. However, Flannery observed the unremitting criticism of Briese by Murphy’s friend Premier Neville Wran for Briese telling it as he saw it, which persisted with calls for Briese to resign. Flannery who was the trial judge for the Morgan Ryan matter had never met Briese. However, Flannery recognised that he had been subject to the very same style of subtle attempt to influence that Briese was reporting on. Though Flannery did not know Briese, he felt compelled to reveal that he also had been the subject of attempted influence by Murphy. Despite knowing that if he revealed Murphy’s actions he would also be compelled to reveal that his friend John Foord had also sought to influence the Ryan trial. Nevertheless, Flannery chose to speak out because of the pressure that was then being exacted on Briese by Premier Wran. Flannery knew his coming forward would
– Eleni Horbury with her daughter Sophie, and cancer researcher Dr Anne Rios.
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ISSUE 34 I JUNE 2017 I LSJ 11
LETTERS TO THE EDITOR CONTINUED
Talkin’ about my generation(s)
mean much heartache, and it did, but his courage and integrity would not allow him to remain silent in the face of injustice. Flannery was the second hero in the Murphy matter. Our third hero was Senator (as he then was) Michael Tate. A second Senate committee was established to inquire into the allegations arising from The Age tapes. The committee comprised four appointees and was chaired by Labor appointee Michael Tate. After hearing evidence and in the absence of a refutation by Murphy, Tate sided with non-Labor appointees that there was a prima facie case that Murphy’s conduct may have amounted to misbehaviour. At the time, Tate was scheduled to be appointed a Minister. His finding on the second Senate enquiry led to him being overlooked by the Hawke Government as he would well have expected. In short, Tate chose to act on his conscience and with integrity rather than to advance his own political career. Senator Michael Tate was the third hero in the Murphy saga.
I hope you do not think I am expressing a certain amount of pride (well I suppose I am) but I felt I should let you know that my grandson, Harry Best, has been admitted as a solicitor in Melbourne and is now a fifth generation lawyer. It all started with my grandfather, Percival George Best, who was admitted as a solicitor by the Supreme Court of NSW on 6th March 1897 and he swore an Oath of Allegiance to Queen Victoria. He practised in Lismore in the firm of McIntosh & Best. He was followed by my father, Harold Best, who was admitted on 1 November 1923. I was admitted on 29 October 1954 and carried on the firm of McIntosh & Best until amalgamation with Trenches in 1966. My son, Peter, was admitted in February 1997 and worked in our Lismore oce before entering into the finance world. My son, Mark, was admitted as a solicitor in December 1992 and worked in Sydney before being admitted as a barrister in September 1994. His son, Harry, was admitted as an Australian lawyer in November 2016. Just a side note, at the Melbourne admission, a barrister rose and said, “If the court so pleases, I move the admission of my mother”. Michael J. Best, Lismore
Re: “I am not a resource. I am a human being.” April Hot Topic “Anonymous, this alone speaks volumes!” Alan Claire, LinkedIn
“Glad I left private practice. As soon as your perceived value to an organisation is based on the fees you generate, it’s a disaster waiting to happen. What’s even more bewildering is when a firm charges fixed fees and simultaneously expects its employees to meet their 6.5. Good article!” James (Jin) Qian, LinkedIn “Applicable to a number of service industries. An interesting read.” Deb Richman, LinkedIn “A nice companion piece to observations of law being a people business.” Sue-Ella Prodonovich, LinkedIn “A must-read for all leaders in the law. Put your people first.” Simon Tupman, LinkedIn “This is not restricted to law firms.” Cathy Tunbridge, LinkedIn “Her employer obviously doesn’t know she’s on the clock writing that article.” Marty Burnout, Facebook “I’m so happy I don’t work at a law firm anymore!” Danielle Wallis, Facebook
In all three models, we witnessed where acting with integrity and good
conscience was preferred to personal convenience and enhancement. Michael O’Dea, KCSG, AM BA LLM, Special Counsel, Carroll & O’Dea Lawyers
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ISSUE 34 I JUNE 2017 I LSJ 13
Lawyers call for actionon asylumseekers and refugees
The first group of refugees on Nauru and Papua New Guinea’s Manus Island could move to the US mid-year, Graham Thom, Refugee Coordinator at Amnesty International Australia and Asylum Seekers Centre Board Member, told attendees at an event at the Law Society on 11 May. The refugees have been required to apply to resettle in the US and of the 1,600 who have applied, just 900 have been interviewed so far, Thom said. Fairfax reported in late May that the Department of Immigration and Border Protection said 268 people had completed their second-stage security interview with US ocials. 220 completed interviews in Nauru and 48 on Manus Island. The Trump administration has agreed to settle up to 1,250 asylum seekers from Australia. “The number who have applied to move shows how desperate people on Manus Island and Nauru are,” Thom said. “There is a lot of hope that people will go to the US at the end of June or in early July.” Elaine Pearson, the Australia Director at Human Rights Watch and an adjunct lecturer in law at the University of NSW, said the time for introducing an independent monitor in o-shore processing centres had passed. “The time the centres were set up would have been the time,” she said. “We know the conditions are abusive and poor. People have to be transferred out of the abusive conditions as soon as possible. We need to shift the nature of the debate and tell the stories of what is happening to individual people. It’s time to lift the ban on journalists and lawyers visiting the centres.” A joint Human Rights Watch and Amnesty International investigation found that asylum seekers detained in Nauru suered severe abuse, inhumane treatment and neglect. The report found that the Australian Government, by forcibly transferring refuges and people seeking asylum to Nauru, had violated
the rights of people to be free from torture and other ill treatment.
BY JANE SOUTHWARD
Australia’s policy of sending asylum seekers and refugees to Nauru and Manus Island to process their claims was put under the spotlight at a Law Society event, “Asylum Seekers: Where to From Here?”
Madeline Gleeson, a lawyer and Senior Research Associate at UNSW’s Andrew and Renata Kaldor Centre for International Refugee Law and author of O shore , said Australia had an immigration policy that violated human rights law. She said several hundred men on Manus Island had been found not to be classified as refugees and were facing deportation. She said the Australian Government appeared to see the treatment of asylum seekers as embarrassing and feared it could harm Australian eorts to get on international boards and bodies such as Australia’s push for a spot on the United Nations Human Rights Council from 2018-2020. Steven Glass, a Partner at Gilbert + Tobin, who has led the firm’s pro bono refugee practice for 12 years, called on the government to show leadership by increasing the intake of asylum seekers and treating them more humanely. “A better solution won’t come until we have leadership from the government,” he said. “It’s really important that Australia increases the number of people we accept. Australia can’t solve the problem of the global refugee crisis and we do need to accept that there has to be a cap, but we can do more. This year Australia will accept 13,000 refugees and next year the figure is expected to be 16,000 then in 2018, 18,000.” Glass commended Australia for taking 12,000 refugees from Syria but described the response as “pathetic given the magnitude of the problem”. He said the Australian Government had appointed two law firms to oer legal services to people on Nauru and Manus Island. “RACS (the Refugee Advice and Casework Service) are experts in doing this type of legal work pro bono but they have been banned from the oshore detention centres,” he said. “Everybody other than those two firms has been banned, which isn’t ideal.”
We need political leadership: Steven Glass, a Partner at Gilbert + Tobin.
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NEWTHISMONTH PRACTICE MANAGEMENT COURSE
The Law Society of NSW is making it easier to set up your own practice or become a principal with the launch of a new practicemanagement course. The three-day course will help you prepare to run an ecient and cost- eective practice through use of the latest business management skills and techniques. It will include real life examples along with practical advice, making you better prepared to take on new responsibilities. experience. The course combines online and face-to-face learning workshops in technical and business skills. The first course starts 7 July. Contact the Law Society for more details. The small class size, capped at 30, will create a hands-on, interactive JOBATLEGALAID Brendan Thomas has become the first Aboriginal Chief Executive Ocer (CEO) at Legal Aid NSW. Thomas, the former Deputary Secretary of the NSW Department of Justice, formally took over the role on 22 May. He said he was keen to continue former CEO Bill Grant’s legacy of improving access to justice in NSW. “As an Aboriginal Australian and as a long-time advocate for increased access to justice for all, I look forward to ensuring Legal Aid NSW continues to assist Aboriginal communities, victims of domestic violence, the homeless, and anyone else in need of legal advice,” Thomas said. Thomas worked for the Department of Justice for more than 20 years and was the Deputy Secretary of the Department before he left. His former boss, Attorney- General Mark Speakman, commended the appointment to CEO. INDIGENOUS CEOTAKESTOP
Elizabeth Broderick Former Sex Discrimination Commissioner
Women represent by far the largest untapped talent pool that exists but they are still under-represented at senior leadership levels. Of the 119 executive directors on ASX 100 boards in 2015, a mere six were women. Address to the Australian Council of Superannuation Investors, May 2017. Sydney University Law School April 2017.
ISSUE 34 I JUNE 2017 I LSJ 15
six minutes with
DEMETRIO ZEMA FOUNDER ANDDIRECTOR, LAWSQUARED
Why did you go into law? I originally wanted to be a diplomat. I studied international relations at uni but wanted a broader education, so I decided to do a law degree as well. While I was applying for the DFAT (Department of Foreign A airs and Trade) program, I decided to do my legal traineeship then got a job as an insurance litigator and ended up sticking with law. Why did you decide to start a legal firm? I come from a business-related family and had already started a number of businesses. As a lawyer, I struggled with the notion of traditional law and the trajectory it bestows upon us all. I got to a point in my career where I wanted something di erent and thought, “Well, I am a good lawyer and an entrepreneur, so why not blend the two?” How is Law Squared di erent to a traditional firm? In philosophy and in mindset. For starters, we focus on outcomes rather than numbers. In a normal firm there is a focus on daily numbers, which dictates what the firm makes. That leads to a mindset that equates hours with outcome, which may not be as ecient, productive and e ective as it can be. By removing the element of numbers, solicitors can focus on outcomes – just because you are hitting numbers doesn’t mean you are doing well at your job. Our billing models include a number of fee- for-service packages. Many of our clients are entrepreneurs, often seeking investment. We help make them investor ready. Most of our options are A champion of “NewLaw”, Zema decided to combine his entrepreneurial instincts with his legal background and in 2016 founded Law Squared, a new-gen law firm, in Melbourne. It quickly expanded and now includes teams in Sydney and Brisbane. Before founding the firm Zema, now aged 29, worked in litigation at Logie- Smith Lanyon Lawyers and Ligeti Partners. He holds a Bachelor of Laws (LLB) and Bachelor of International Relations from La Trobe University. He is also a board member for the Victorian Deaf Society and the Centre for Multicultural Youth.
really designed for new businesses, seed or self- funded start-ups and SMEs. We also o er retainer- based services. Other di erences? We give our lawyers input and control over client management, outcomes and setting their own agendas. Everybody has the same opportunities; it leads to more autonomy at an earlier age. We also have more of a flat rather than a traditional hierarchical management structure. Starting out, we researched what most people didn’t like about lawyers, which was: they are inecient, expensive and bad communicators. We pride ourselves on being the opposite and having a positive relationship with our clients. Has the youthfulness of your sta created any challenges with potential clients? Most of our client base are entrepreneurs aged 26-36 the same age as most of our lawyers, which means they resonate with team. Age isn’t an issue. We do have older clients, but they also relate to a much younger, proactive style of thinking. Biggest challenge? There’s a lot of noise about disruption and innovation in the legal space at the moment, which has created some confusion in the marketplace. There are some new legal platforms and artificial intelligence solutions, but only a few legal firms are really championing this new internal change. There needs to be a better understanding about where each of these di erent models sits in the market.
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mind your ethics
Q&AWITH LINDENBARNES , ETHICS SOLICITOR
Q: I have been working in law for many years and would love to give back to the profession. Can you suggest some ways I could do this? A: Many solicitors use their skills and experience to support the profession. We all know how hard practising law can be, whether it is dealing with clients, interpreting laws, balancing personal situations or managing practice obligations. I constantly see examples of great professional collegiality and support, be it at regional Society get-togethers, or when a practitioner gently guides another on to the correct track. There is another avenue to help fellow practitioners in need and that is the Professional Conduct Advisory Panel. This panel has been running for many years, under the name of the Senior Solicitors Scheme, and involves an amazing group of dedicated
practitioners. They provide support to solicitors who may be subject to a complaint, concerned about a possible show cause event, or dealing with a trust account issue. With the retirement of some of the current members, and a need to expand the panel to cover more areas of legal practice for an ever-broadening profession, we are seeking new members for the panel. Members of the panel are given access to training on how to deal with people who may be in distress, as well as greater insight into the regulation of the profession. And being part of it can give you the satisfaction of helping a colleague in need. If you would like to find out more on how you can share your knowledge and experience, visit http://www.lawsociety. com.au/ForSolictors/professionalsupport/supportingyou/ seniorsolicitorsscheme/index.htm
Y OU R P R AC T I C E
W I T H T H E L L M ( A P P L I E D L AW )
– A D E L I N E S C H I R A L L I A S S O C I AT E , W I L L I S & B OWR I N G A N D S T U D E N T, T H E C O L L E G E O F L AW L L M ( A P P L I E D L AW ) The coursework has been absolutely relevant to my daily practice. The material that was provided to us throughout the course is constantly being used throughout my practice.
Contact us: 1300 506 402 or email@example.com WATC H A D E L I N E ’ S S TO RY @ WWW . C O L L AW . E D U . AU / A L P
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LEGALHEROES JUSTICEAWARDS NOMINATIONS OPEN Help celebrate the achievements of those who are improving access to justice by nominating outstanding individuals and groups for the 2017 Justice Awards. Each year the Law and Justice Foundation of NSW recognises people who have helped improve access to justice in NSW, especially for socially and economically disadvantaged people. Nominations are now open for these awards: • Justice Medal : presented to an individual who has demonstrated commitment to improving access to justice, especially for socially and economically disadvantaged people in NSW; • Aboriginal Justice Award : recognises an individual or group who have demonstrated outstanding commitment to improving access to justice for Aboriginal people in NSW. It is supported by the NSW Department of Justice; • Law and Justice Volunteer Award : presented to an individual commitment to improving access to justice, especially for socially and economically disadvantaged people in NSW. Sponsored by the NSW Bar Association; • Pro Bono Partnership Award: presented to a law firm, community organisation and/or community legal centre partnership that has developed an outstanding pro bono legal assistance relationship that has resulted in improved access for disadvantaged people. Nomination forms and details about the process, including selection criteria, are available at lawfoundation. net.au . Nominations close on 7 July 2017. The winners will be announced on 19 October. or group who have, through volunteering, demonstrated a
BRENTFISSE Joined as a Special Counsel Resolve Litigation Lawyers
MICHAELMALLEY Elected President of the Eastern Suburbs Law Society Malleys Lawyers
JOANNEGRAY Appointed as Commissioner Land and Environment Court
LYNNELEWIS Appointed as a Partner, IP Bird & Bird, Sydney
NATASHA MARSHALLTEOH Joined as Senior Associate, Intellectual Property, Technology & Competition DibbsBarker
ROSEMARY CARRERAS Appointed to Principal Coleman Greig Lawyers, Parramatta
PAULVINCI Joined as a Partner, Corporate Johnson Winter & Slattery, Perth
JUSTINHARRIS Joined as a Partner, Corporate Johnson Winter & Slattery, Perth
JASONSPRAGUE Joined as a Partner Eakin McCa ery Cox Lawyers
DR. ULYSSES CHIOATTO Appointed as General Counsel Parramatta Mission
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
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ASNAPSHOTOFTHE PROFESSIONIN2016 The National Profile of the Profession prepared for the Law Society by Urbis shows some interesting workplace trends. solicitors and women barristers working in civil litigation, with a focus on commercial, equity, industrial and employment law. This event was intended to facilitate solicitors and women barristers who practise in the same area to meet each other and exchange contact details, with a view to increasing the briefing of women barristers in NSW. The event promoted the aims of the Law Council of Australia’s National Model Gender Equitable Briefing Policy. The policy includes interim and long-term targets with the ultimate aim of briefing women in at least 30 per cent of all matters and paying them 30 per cent of the value of all brief fees by 2020. The Law Society has commended the policy to entities that brief counsel in NSW and has The Law Society and the NSW Bar Association co-hosted the first equitable briefing networking event on 4 May. The event was aimed at
adopted the policy in relation to its own briefing of policy. Law Society President Pauline Wright, pictured right, urged attendees not just to come together in support of the same change they wished to see in the profession, but to do something practical to realise it. The Law Society and Bar Association plan to run events for other practice areas later this year. For more information on the policy go to lawsociety.com.au/ ForSolictors/AdvancementofWomen/ EquitableBriefing/index.htm
AS AT OCTOBER 2016, THERE WERE 71,509 PRACTISING SOLICITORS IN AUSTRALIA.
42.4 THE MEAN AGE OF AUSTRALIAN SOLICITORS IN 2016 years old
of solicitors work in private practice 69 %
WHERE WE WORK More solicitors are working for smaller firms: compared with 2011, firms with 2 to 4 partners had the highest increase in the number of solicitors
+23.1% firms with 2 to 4 partners
50.1 % 49.9 %
+ 24.2 % in the number of practising solicitors since 2011 increase THE PROFESSION IS GROWING
52.7 % of solicitors were practising in a capital city in 2016 CITY SLICKERS
+19.4% firms with 5 to 10 partners
THE GENDER AGENDA In 2016, the legal profession comprised an even gender distribution, mostly driven by more female solicitors entering the profession than males since 2011 (+34.2% compared with +15.6%).
+17.5% sole practitioners
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On 20 April 2017, the Council of the Law Society of NSW resolved to terminate the appointment of Richard Gerard Flynn as Manager to the law practice known as McMurchie & Co. On 3 May 2017 pursuant to s.327(2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Lionel Peter Kramer, Solicitor, as Manager of the law practice known as Horowitz & Bilinsky Pty Ltd for a period of two years. On 3 May 2017 pursuant to s.327(2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, Solicitor, as Manager of the law practice known as Edrison Lawyers for a period of two years. On 28 April 2017, the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Albert-Edris Truong be removed from the roll of practitioners and that he pay the Society’s costs, as agreed or assessed. On 28 April 2017, the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Thomas Gerard Feerick be removed from the local roll and that he pay the Society’s costs, as agreed or assessed. On 18 May 2017 pursuant to s.327(2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as JP McNamara & Co for a period of two years. On 18 May 2017 pursuant to s.327(2)(b)(ii) the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, Solicitor, as manager of the law practice known as Axis Legal (Australia) Pty Limited for a period of two years. On 18 May 2017 pursuant to s.327(2)(b)(iii) the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Gerard Flynn, Solicitor, as manager of the law practice known as John Orford & Associates for a period of two years. On 18 May 2017 pursuant to s.82(1)(a) of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to suspend the practising certificate of Albert Judah till 30 June 2017.
For the full round-up of Law Society advocacy, see page 68.
Funding for the Criminal Justice Support Network The Criminal Law Committee wrote to the NSW Attorney-General regarding funding of the Criminal Justice Support Network (CJSN), which supports people with an intellectual disability in police stations, courts and correctional centres. Funding will end by June 2018 unless the Department of Justice takes over the funding. The committee asked the Attorney-General to give full consideration to providing the necessary funding to enable the CJSN to continue operating on an on-going basis. Federal Inquiry into establishing a Modern Slavery Act The Human Rights Committee made a submission to the Law Council of Australia regarding establishing a Modern Slavery Act in Australia. The submission strongly supported the introduction of mandatory transparency legislation and policies in Australia to prevent trafficking and slavery within business operations, including domestic and global supply chains and suggested a number of additional provisions. Inquiry into the Legislative Council Committee System T The Human Rights and Public Law Committees wrote a joint letter to the NSW Department of Premier and Cabinet regarding the inquiry into the Legislative Council Committee System, noting the Law Society’s support for a system of scrutiny by the Legislative Council for the referral of bills for substantive scrutiny and reiterated the Law Society’s previous recommendations regarding timeframes. The submission also recommended that further consideration be given to general reform of the committee system to ensure that it is used for genuine investigation and reporting.
NSW JUVENILES IN CUSTODY 31 % 281
amount the juvenile inmate population has dropped since 2011
the number of juvenile inmates in NSW
Source: NSW Bureau of Crime Statistics and Research
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