LSJ June 2021

The equal paywave How a surf competition sparked a war on equal pay for women in sport Paws and reflect The law firms bringing dogs into the o ce to boost health and wellbeing Is Australia still home? Lessons from the India travel ban on the interpretation of emergency powers

Out in the icy cold As the Antarctic Treaty turns 60 is it still doing its job e ectively?

ISSUE 78 JUNE 2021

2021 Leadership

Key lessons on leadership from those leading the way outside the legal profession

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Contents

Features LEADERSHIP SPECIAL 2021

LEADERSHIP SPECIAL 2

2021 Leadership

30

Features

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24 Hot topic

34 Hayley Foster The CEO of Women’s Safety NSW tells Amy Dale how she is driving change to address domestic violence 42 Grace Tame

50 A labour of love

A group of surfing lawyers wants legal change to ensure women earn “equal pay for equal play” for sports in NSW

Bellingen solicitor Linda Dalton tells Katrina Lobley why she became a part-time wedding celebrant

26 Lunchwith

54 Dog days are here

Comedian Floyd Alexander-Hunt exchanges ca einated quips with the winner of the 2021 Golden Gavel 32 Shane Fitzsimmons The former rural fire chief speaks to Kate Allman in the first interview of this month’s cover special on leadership

Australian of the Year Grace Tame embodies brave leadership in her advocacy for sexual assault victims

The research is in: dog-friendly o ces help create happier, more productive teams, writes Angela Tufvesson

44 Rob Scott

56 Travel

The CEO and Managing Director of retail giant Wesfarmers reflects on business leadership through COVID-19

No border, no mobile reception, no worries: Lord Howe Island o ers an ideal pandemic escape

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24

26 71

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News 23 Expert witless 23 The LSJ quiz 28 A Country Practice 46 Career matters 48 Career coach 48 Mindset 52 Health

66 Advocacy

82 Practice and procedure

A round-up of the latest developments in advocacy and law reform

New Supreme Court guidance about client file ownership and storage

84 Elder law and property

68 Citizenship

Retirement village residents prevail in challenge against receiver

Lessons from the Federal Court India travel ban challenge

86 Risk

71 International law

Avoiding cyber extortion through proper law firm management

What the Antarctic Treaty ’s 60 th birthday bash will mean for Australia

87 Taxation

74 Maritime law

Some salutary lessons in end of financial year tax stings

The Ever Given may have been dislodged, but the complex legal fallout has only just begun

88 Employment

WFH, RTW, WHS, FWC, FOMO, JOMO ... ! Getting to grips with the new world of flexible work

77 Property

An new expert analysis of the complex pitfalls of residential put options 80 Building and construction An essential update on the new NSW building and construction reforms starting 1 July

90 Case notes

55 Library additions 56 Destination guide 62 Books and lifestyle 64 The case that changedme 106 Avid for scandal

Expert reporting of the latest High Court, Federal Court, NSW Court of Appeal, NSW Court of Criminal Appeal, Family Court, and elder law and succession judgments

From the teambehind the award-winning LSJ magazine.

JUST CHAT

NEW EPISODES Available now

Shane Fitzsimmons sits with Kate Allman to talk about taking a leadership position during the bushfires and being appointed head of Resilience NSW. Available 14 June Author and lawyer Bri Lee chats with Amy Dale about her new book, the power and privilege inside our most prestigious institutions and reveals her answer to this important question: who gets to be smart?

Find all episodes at lsj.com.au/podcasts or on your preferred podcast app

A word from the editor

W hat a treat to have such a clever, diverse and high-pro- file cohort gracing this month’s cover. When the LSJ team began discussing the possibility of bringing readers an edition based on the theme of leadership, we quickly decided we should look for those making waves outside of the profession. Not because there aren’t exceptional leaders within the law – there are many – but because it is always important to actively look outside of oneself to learn from those you don’t necessarily resemble and to peer into corners you may not stumble across in your everyday existence. There are so many lessons to be heeded from this group; so many grains of wisdom on what great leadership looks like and how we can all strive to do better, give more and fear less. Importantly, it also sheds light on what leader- ship is not, and unpacks many of the circumstances and traits which, when thrown together, transform ordinary people into those who lead nations, movements and critical change during some of our most important moments. If you need a little inspiration, you’ll find it here. I hope you enjoy the read. Claire Chaffey

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt 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 © 2020 The 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 June 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. The 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.

Contributors

Diane Skapinker Property p77 Diane is a leading property law specialist, Consultant at Ashurst, and a member of the Law Society’s Property Law Committee. This

Dr Sangeetha Pillai Citizenship p68 Sangeetha is a constitutional lawyer and Senior Research Associate at the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW. Here, she examines the India travel ban challenge and the uncertainties of Australian citizenship.

Kate Allman Cover story p32

Amy Dale Leadership p34

27,578 * *AUDITED SEPTEMBER 2020 DISTRIBUTION

Kate is a multimedia journalist and Online Editor at LSJ . She has a double degree in law and journalism from UNSW. This month, she interviews powerful Australian leaders Grace Tame, Shane Fitzsimmons, Ryley Batt and Rob Scott.

Amy is a journalist at LSJ. She previously

worked as a government social policy and media

The equal paywave How a surf competition sparked a war on equal pay for women in sport Paws and reflect The law firms bringing dogs into the o ce to boost health and wellbeing Is Australia still home? Lessons from the India travel ban on the interpretation of emergency powers

adviser, as a court reporter, and has a

ISSUE 78 JUNE 2021

Out in the icy cold As the Antarctic Treaty turns 60 is it still doing its job e…ectively?

ISSUE 78 JUNE 2021

month she offers a timely and detailed

Masters of Criminology. She talks to the woman leading the movement to criminalise coercive control in NSW.

analysis of the complex pitfalls of residential put options.

2021 Leadership

Key lessons on leadership from those leading the way outside the legal profession

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 LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

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President’s message

A s a Law Society, we aim to lead, encourage, and pro- vide our members with the best possible resources to achieve genuine change for the profession and the community we serve. A quarter of a century has now passed since the Law So- ciety first developed an Equal Opportunity Policy for its workplace and, in doing so, demonstrated a firm and ongo- ing commitment to the principles and practice of fairness of opportunity and diversity in the legal profession. As part of our ongoing work to promote diversity and inclusion in the workplace, I am happy to announce the release of our revamped Workplace Guide and Model Dis- crimination and Harassment Policies. Since the first edition was published in 2001, there have been a number of legal developments making it necessary to revise and update this guidance to the profession. The 2021 Guide contains practical tools that can assist legal practices in NSW to identify and eliminate discrimina- tory recruitment and employment practices, and it includes helpful insights to enable legal practices and other organisa- tions to engage in best practice to promote a diverse and fair workplace. Understanding and implementing policies that address discrimination and harassment should see organisations reap a range of benefits, resulting in better business outcomes for the profession and the community. I applaud legal practices that are already active in this area and encourage others to follow suit and introduce and implement workplace policies that support fairness and inclusivity. The 2021 Guide complements recent initiatives in this space, including revamping our Charter for the Advance-

ment of Women in the Legal Profession to include new provisions focusing on the promotion of women from all backgrounds to leadership positions and prompting signatories to establish procedurally fair and transparent sexual discrimination and harassment complaints processes. Since we relaunched the Charter in March, another 113 law practices and legal teams have become signatories, bringing the total number of signatories to 289 law practices and large organisations, which collectively employ thousands of solicitors across NSW. I am on a mission to get all law practices and legal teams to become sig- natories and, if your workplace has not yet signed the Charter, like me, you should be asking “Why not?” and “When will you be signing it?” I am also happy to report that the Law Society will soon be delivering to the profession a new CPD workshop on the issue of sexual harassment in the work- place. The workshop, to be rolled out next quarter, will provide guidance on how to identify inappropriate conduct, the role of bystanders, workplace culture and the reporting and management of complaints.

Juliana Warner , President, Law Society of NSW

8 LSJ I ISSUE 78 I JUNE 2021

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ISSUE 78 I JUNE 2021 I LSJ 9

Mailbag LETTERS TO THE EDITOR

The age of reason Why older workers hold the key to greater productivity

Shaping the profession How our newest lawyers are changing the face of the law “I amnot a cat” Lunch with the judge from the world’s funniest Zoom call Respect@Work Is the Government’s response enough to e ect change?

Not a requisition George Bognar’s letter in May’s LSJ reminded me of the increas- ing practice of including replies to requisitions in contracts, most often without any amendment to provide that the answers are deemed to be made on making of the contract. I was particu- larly amused by one reply which stated: “This is not a requisition.” Dale Shaddock All pork, no barrel Congratulat ions on publishing the critique of “pork barrelling” in the April LSJ. As for the Senate report, it’s trite for the Prime Minister’s Department to “note” the discrepancy between grant applications recommended by Sports Australia and those approved by the Sports Minis- ter and to “highlight” a lack of transparency, unless reforms come from the top to force changes that the Australian public now demands. David Grinston Check your numbers? I appreciate that you thought to put a fact-based article on the health risks of AstraZeneca

in the May edition of the Law Society Journal – I read it with interest. I applaud the e ort to contribute to ensuring the profession has accurate and reliable information about this important issue. You referred to the low risk of death due to blood clots caused by the AstraZeneca vaccine and referred to figures from the World Health Organization and Australia’s Chief Medical O cer. You also referred to the contraceptive pill and the risk of blood clots, and ask why the extra worry about the vaccine. You referred to figures from UNSW Lecturer Terri Foran who is quoted as saying, “The di erence is that with the pill, you’ve only got about a 3 per cent chance of dying (if you get a clot) so it’s tragic if it happens, but the actual risk of dying is still very small.” However, I did a few simple calculations using the figures from your article and they showed that the risk of dying from a blood clot caused by the contraceptive pill is substantial- ly higher than the risk of dying caused by the AstraZeneca vac- cine, which doesn’t support the

argument the article seemed to be making about comparative risks. As I don’t have a combined LLB/Mathematics qualification I asked a friend with a Maths degree to check the calculations and she confirmed what I had found. So, while I appreciate the arti- cle, it would have perhaps been better if the figures had backed up all the points being made. Bringing it to your attention in the hope that in future there might be some double checking of figures used and what they mean. Michelle Gardiner P.S. I happily had my first Astra Zeneca shot several weeks ago – and am encouraging all my friends and family over 50 to get theirs. Principle and spirit Indutiably, the rule of law is a fundamental principle. So too should be the spirit of the law. Let’s not forget the aphorism: “Not only must justice to done; it must also be seen to be done.” Edward Loong

ISSUE 77 MAY 2021

ISSUE 77 MAY 2021

Why small firms around the state are leading the post-COVID revival

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E: letters@lawsociety.com.au

Please note: We may not be able to pub- lish all letters received and we edit letters for style. We reserve the right to shorten the letters we do publish.

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Features

CONGRATULATIONS! David Grinston has won a limited edition LSJ x frank green™ cup. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

PORK BARRELLING past its use-by date? It is a practice more than a century old. But as Australia grapples with the standards of behaviour inside Parliament House, has the public’s patience regarding pork barrelling — government cash splashes in marginal seats and treating those who reward them at the ballot box — finally expired? And could a legal framework set the rules of engagement for ministerial intervention? AMY DALE investigates.

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“I think that in these hard times that are upon us, that even though society was in chaos and there was a lot of uncertainty with employment, work was going well for you so much so that you were able to o er another solicitor employment. Well done.” – Dion Willcocks

ISSUE 78 I JUNE 2021 I LSJ 11

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“I’ve also experienced this with laterals of those who were grads and moved up the ranks. Laterals, esp post GFC, are in more of a position to negotiate when moving across. Only those firms who have undertaken a full scale review should be able to comfortably say no pay gap.” – Cassandra Heilbronn, Twitter

“Not this figure but, like, same.” – @KaraLambo, Twitter

“Well said @KieranPender it’s so common to see employment contracts in the legal profession requiring solicitors to keep their remuneration secret. It’s appalling and I am surprised that it hasn’t been stamped out.” – Larissa Andelman, Twitter “This happened to me. As a female, I was paid $15,000 less and when asking for a pay rise, I was told I wasn’t doing enough work to warrant it. They ignored the fact I was carrying the work of two other men in the legal team, who were getting paid more to do less.” – @ KateOnTheGo, Twitter NEWS by Influencer NEWTHISMONTH Golden Gavel 2021

The funniest event on the legal calendar is back in 2021. Join us for breakfast on Friday 21 May and watch 10 of the funniest legal minds compete in a winner-takes-all comedy showdown. With limited seats avail- able, this year’s competition is sure to sell out quickly. Don’t miss out: book today at: lawsociety.com.au/events Just Chat new episode This month, Just Chat dives into the findings of the Royal Commission into Aged Care and Quality, nursing home deaths from COVID-19, elder abuse and the high cost of growing old in Australia. Our special guest is Andrew Simpson, National Head of Wills & Estate Planning at Maurice Blackburn Lawyers. Search “Just Chat” wherever you get your podcasts or visit whooshkaa.com/shows/just-chat FLIP RoadshowOrange The President of the Law Society of NSW invites you to the Future of Law and Innovation in the Profes- sion (FLIP) Roadshow in Orange on Friday 28 May. The half-day program is designed to provide our members with low-cost, innovative and sus- tainable solutions to improve their practice. Register at: lawsociety.com. au/events/events-calendar/flip-road- show-orange 2021 mentoring programs Applications are now open for the Law Society’s 2021 mentoring programs. The three uniquely targeted and popu- lar mentoring programs have been de- veloped to support lawyers at different stages of their career: graduate, early career (two to five years of practice), and women. To find out more and express interest in participating in the programs, visit: lawsociety.com.au/mentoring

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CaroMeldrum-Hanna Investigative journalist, Exposed: The Ghost Train Fire

It’s time for justice for the long-suffering families. Please don’t turn away.

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Briefs NEWS

Federal Budget will fundmore Family Court judges, improve services for domestic violence

BY KATE ALLMAN

The number of federally funded judges in the Family Court and Federal Circuit Court of Australia will jump to 111 nationally, up from 101, under additional funding the government has promised in the 2021 Budget.

Family law judges had been buckling un- der crippling caseloads, sparse resources and ballooning wait times for litigants in recent years. Under the incoming Budget, however, two additional judges will be appointed to the Family Court, and eight to the Federal Circuit Court of Australia. It is hoped this will reduce the burden on existing judges – some of whom told a senate inquiry last year they were overseeing up to 600 cases at a time. The courts, which will amalgamate officially in September after a restructure was recommended by the government’s two-year review into the family law sys- tem, will receive $100 million of addi- tional resources over the next four years. Chief Justice Wil Alstergren said the funding would provide welcome assis- tance as the courts transitioned into the new streamlined system and would trans- late into significant benefits to litigants. “This is very good news for the Aus- tralian public. For too long, we have en- dured a less than ideal system, and with the injection of such substantial resourc- es, I am confident that the Courts can start to address the unacceptable delays litigants have faced for many years,” the Chief Justice said in a statement released by the Family Court and Federal Circuit Court in May. “The judges of our Courts are some of the hardest working judges in Australia, demonstrated over the past 12 months by their ability to continue to hear cases suc- cessfully throughout the pandemic. This funding will provide them with critical and much‐needed support to continue to

deal with their unrelenting workloads.” The Budget also forecast wins for women’s legal services, with a total $129 million over four years for women’s legal services to increase their capacity assisting women experiencing or at risk of family violence. An additional $17.1 million would go towards domestic violence units and health justice partnerships, to deliver additional mental health services for women who have experienced violence. President of the Law Council Jacoba Brasch said the “chronically underfund- ed” legal assistance sector would wel- come the targeted funding. “Women’s legal services in particular have faced a significant increase in de- mand over the last 12 months, with the COVID-19 pandemic pushing these al- ready resource-poor centres to breaking point,” she said. “The downstream savings created by proper investment in the legal sector are clear. It’s time government recogniz- es that a failure to adequately invest in these services has broader implications to health, housing, social services and welfare, child protection, families, cor- rections, policing and justice portfolios.” The list of female-centric support measures came in an historic “Wom- en’s Budget Statement”, the first of its kind in Australia, which women min- isters Marise Payne, Anne Ruston and Jane Hume presented to parliament on 12 May. As well as the $129 million for legal assistance, the ministers announced a

new trial program to give women fleeing violent relationships up to $5,000 in assistance, split into a $1,500 payment and $3,500 in expenses like rent, legal fees and furniture. But organisations that assist women fleeing family violence said the fund- ing falls short. CEO of Women’s Safety NSW Hayley Foster said the Budget did little to address the root causes of vio- lence, or to assist the nine in 10 women who wanted to be supported to stay at home with the abuser removed. “If we don’t get serious about primary prevention, we’re never going to achieve the generational change we need to see in this country for rates of violence against women to come down,” Foster said. Women’s Legal Services Australia (WLSA) welcomed the funding boost but warned new money would not create a “safe, child-centred system” without broader law reform. “I’m heartened at the government’s acknowledgement of the crucial role women’s legal services play in responding to violence against women,” CEO of WLSA Angela Lynch said. “But women and children will only be safe in the system if changes are made to make it the priority. For example, the as- sumption of shared parental responsibil- ity, which gives violent men an incentive to litigate and puts children at risk. “This dangerous presumption rou- tinely gives violent perpetrators con- tinued access to their victims and has already caused preventable deaths. Survi- vors have been clear: it must go.”

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NEWS

Influencer

NEWTHISMONTH Hear from Shane

by

Fitzsimmons in Just Chat He’s been dubbed “the nation’s father” for his leadership through the Black Summer of bushfires in NSW. Former rural fire chief and Head of Resilience NSW Shane Fitzsimmons speaks to Kate Allman about many harrowing experiences and lessons learned from a career in emergency services. Shane features in this month’s cover story (p32) and you can listen to his interview in full on the latest episode of LSJ ’s podcast series. Search “Just Chat” wherever you get your podcasts. Event: Understanding and managing perfectionism A high-achiever mentality and tendencies towards perfectionism are common traits among lawyers. Add that to demanding workloads and high client expectations and that’s a recipe for burnout and self-dissatisfaction. Learn how to manage the risks of perfectionism in this important webinar on Wednesday 2 June at 12.30pm. Register via lawsociety.com.au/events Legal Aid NSWCriminal Law Conference 2021 The annual Legal Aid NSW Criminal Law Conference will go ahead virtually this year, with sessions livestreamed from the ICC Sydney. The program includes an impressive range of speakers includ- ing Attorney-General Mark Speakman, Governor of NSW Her Excellency the Honourable Margaret Beazley, Justice Michelle Gordon and Mark Weinberg AO QC. Register via iccsydney.jomab- lue.com/community/23 Practising certificate renewal reminder To engage in legal practice after 30 June 2021, you will need to hold a current prac- tising certificate for the new financial year. Lodge your renewal form via lawsociety. com.au . You can also opt to pay your fees in instalments over time, interest-free, via humm (more info via website).

Professor DanHoward SC Commissioner, Special Commission of Inquiry into ‘Ice’

I wonder how many politicians who are deciding what to do with this report have actually bothered to read it ... because if they had they would understand the urgency of the measures that were recommended.

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Briefs NEWS

Emma Maple-Brown recently took up the role of Director, Pro-Vice Chancellor Indigenous at UNSW. During the early years of her career she worked at Herbert Smith Freehills, specialising in defamation and later leading the firm’s Australian pro bono practice. Maple-Brown tells FLOYD ALEXANDER-HUNT about her new role and the skills she’s acquired from the legal profession to undertake it. sixminuteswith EMMA MAPLE-BROWN complex facts and communicating legal ideas to people who may not be lawyers. How can the legal profession support Indigenous Australians better? I would really encourage all lawyers to read the Uluru Statement from the Heart and learn about the legal discussion taking place, including a protected voice in our Constitution. I think lawyers have an important role in educating others. If there’s a chance that an enshrined Voice to Parliament might eliminate the comparative disadvantage of Indigenous Australians, then I believe as lawyers we really need to do whatever we can to carefully consider and support that reform. What’s the greatest obstacle you’ve had to overcome in your career? I think it’s the balance between work and family. I often say some of my most demanding clients are my four children. My time management now is second to none and that’s because I have had to learn the hard way that if you’re not organised, then the wheels fall off. It’s an obstacle, but it can also be a gift. What do you like to do in your spare time? My happiest days are the ones I spend with my family. I love being on holiday, reading and cooking. I’m not a natural runner, but I do try to run at least three times a week to stay fit. I think we run the risk of living in a culture where we always talk about how busy we are and while I am busy, most of the time I’m really enjoying what I’m doing. I think that’s an important thing to try to hold onto.

What inspired your career transition? I’ve been lucky to have spent the majority of my working life at Herbert Smith Freehills. In 2019, I completed a secondment at the Indigenous Law Centre with Professor Megan Davis, Pro- Vice Chancellor Indigenous at UNSW. The work really spoke to my values and increasing desire to use my skills to improve the lives of others. When the director position came up, I was ready for a new challenge and that is certainly what I have now. What does your role involve? My role is to support Professor Davis in all of the work she does. This means managing the large teams and projects she has going on, all of which work towards the UNSW Indig- enous Strategy. Professor Davis has a really diverse portfolio, including her work as a public constitutional lawyer, her role on the United Nations, on the NRL board, and as a member of the Land and Environment Court. She is also one of the key constitutional lawyers leading the movement on the Uluru Statement from the Heart. I help manage this diverse portfolio and act as a conduit of information between her and the teams. What skills are transferrable to your new role? I can’t emphasise enough that the most important skill all lawyers can have is the ability to listen. It’s important in my work now because I’m working with people who have so much professional and lived experience in the space. Only by listening can I work out where I can use my skills to help. The other skill I’ve gained is the ability to work with people from all different backgrounds and experiences. Other transferrable skills include time management, writing succinctly, distilling

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NEWS

PRISONS Calls for urgent reform to Indigenous incarceration

The Law Society of NSWhas joined other legal organisations in urging the govern- ment to address the “unacceptably” high rates of Indigenous incarceration, noting that “pain, grief and suffering” endures from the decades-old Royal Commission into Aboriginal Deaths in Custody. On the 30th anniversary of the Royal Commission, the Aboriginal Legal Ser- vice (ALS) noted many of the landmark recommendations from that inquiry have been “gathering dust” since 1991. A NSW Parliamentary Committee reviewing the high level of Indigenous incarceration and Aboriginal deaths in custody released its report last month. Its first recommendation was for the govern- ment to fully implement the Royal Com-

mission recommendations. Among the other 39 recommendations of the committee are calls to raise the minimum age of criminal responsibility to at least 14 years old, greater funding for justice reinvestment, reform the Bail Act 2013, and expansion of the Drug Court to new locations in regional NSW. Karly Warner, CEO of the ALS, said in response to the report’s release: “Honouring children’s right to grow up in schools, homes and playgrounds rather than prisons is a step that’s long overdue. We also welcome amendments aimed at seeing fewer Aboriginal people languishing in cells without having been sentenced of a crime. “We call on the NSW Government to

urgently act on these recommendations and not wait six months to respond, as indicated by the report.” Law Society President Juliana Warner said in a statement: “The time has come for a concerted and coordinated whole of government response to make substantive, structural changes to address these long-standing issues.” “In 1991, the Royal Commission into Aboriginal Deaths in Custody made 339 recommendations – 30 years later the rate of Indigenous incarceration remains unacceptably high and tragically more than 450 Aboriginal and Torres Strait Islander People have died in custody. “We support calls for all of the recom- mendations... to be fully implemented.”

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Briefs NEWS

HUMAN RIGHTS Asylum seeker processing blitz worries lawyers

Elizabeth Hill Joined as Partner Clifford Chance Sydney

Sarah Newman Joined as Principal Lawyer Coleman Greig

The Australian Government is rushing to process the applications of some 1,000 asylum seekers in Australia by 30 June under a new “Fast Track” process predominantly in NSW and Victoria. Human rights groups have raised the alarm that the Australian Government plans to interview and assess an unprecedented 1,100 people by the end of the financial year. Some of the applicants have been waiting up to eight years for the Government to process their visa applications. The surge in processing is leaving asylum seekers just two weeks notice – all the law requires – to prepare for potentially the most important interview of their lives. “The recent sudden surge without warning has left the community and the services who support them, completely overwhelmed,” said Sarah Dale, Centre Director and Principal Solicitor of the Refugee Advice and Casework Service. “We haven’t seen this system move with the haste we are seeing as it draws to an end. It is without any consideration of the significant change in the vulnerability of the community we support, nor the fact people have waited eight years to tell someone their story, only to be left to do so by phone – their one and only opportunity in this process to be heard.” The NSW Council for Civil Liberties (NSWCCL) published an open letter on 17 May warning of the lack of due process in such a system, and calling on lawyers to express concern to the Government. “Reviews are on the papers only – there is no interview ... and no additional materials can be submitted except in exceptional circumstances. “This means that their applications, due so suddenly, are crucial. “Their lives depend upon their success. The assistance of lawyers is vital,” the NSWCCL wrote.

Sarah Grealy Promoted to Associate Newnhams Solicitors

JoeMurphy Joined as Partner Piper Alderman

Nicholas Gibbs Joined as Associate Lawyer Edwards Family Lawyers

Lachlan Jackson Joined as Associate Lawyer Edwards Family Lawyers

LeilaModdel Promoted to Special Counsel Bird & Bird Sydney

Jessica Laverty Promoted to Senior Associate Bird & Bird Sydney

KathrynMorton Promoted to Special Counsel Bird & Bird Sydney

LilaMorris Joined as Partner Barkus Doolan Family Lawyers

Daniel Naddaf Promoted to Associate Dimocks Family Lawyers

Marial Lewis Promoted to Founder/Principal Solicitor Crossover Law Group

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

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NEWS

MIND YOUR

BY LINDEN BARNES, SENIOR ETHICS LAWYER

Q: Everyone else is being a little unethical, so that makes it okay?

A: I am sure we have all come across this defence, maybe when a client is seeking advice or when we are trying to work out what to do in terms of our professional ethical obligations. I want to give this defence an official title: the sheep defence. With that title, should our unofficial response to it be “Baaaa”? Because how valid is it as a defence for either a client or for us? It is not. In fact, the Conduct Rules not only do not contemplate such a defence, they positively go the other way. They apply personal responsibility to each of

us for our ethical obligations. No one of us is too junior, too inexperienced, too part of the crowd to be freed from that responsibility. Yet it can be daunting to be the ethical leader, to stand out from the mob of sheep. This is particularly so when the “everyone else” includes colleagues who are senior to us in experience or hierarchy. How do we lead those who should be leading us? Here I might do a little cross-promo- tion (is that unethical for an ethics so- licitor to do?) for the articles in this LSJ on leadership. Have a read of them to

gather some useful leadership tips on how you can lead where it is not easy to do so. And here are my top three ethical reasons to be an ethical leader: • We must not breach our own person- al professional obligations. • We must be leaders and help our colleagues not to breach their obligations. This is not just a matter of collegiality (see s 39 of the Legal Profession Uniform Law). • We will sleep better at night as a result. Can I resist mentioning that we will then not need to count sheep … ?

ISSUE 78 I JUNE 2021 I LSJ 19

Briefs NEWS

STUDENTS Australian Academy of Law launches inaugural First Nations scholarship

PRIVACY New laws will out government agencies involved in data breaches The NSW government has unveiled a plan to bolster privacy law in the digital era by introducing a mandatory notification scheme to hold organisations to account when they experience a data breach. Under the scheme, NSW public sector agencies would need to noti- fy the Privacy Commissioner and affected individuals when a data breach involving personal informa- tion was likely to result in serious harm. The proposed laws come at a time when NSW public sector agencies are holding more personal data than ever before, bolstered by COVID-19 check-in processes, QR codes and contact tracing. NSW Attorney-General Mark Speakman and NSW Minister for Digital and Minister for Customer Service Victor Dominello released draft laws on the scheme for public consultation during Privacy Aware- ness Week in early May. Passage of the laws would make NSW the first state or territory to invoke such a scheme in Australia. “The protection of people’s privacy is crucial to public confidence in NSW Government services. I encourage anyone with an interest in this area to make a submission,” Speakman said. “If passed, this Bill will introduce a scheme that will ensure greater openness and accountability in relation to the handling of personal information held by NSW public sector agencies.” The government has called for public submissions on the law, which can be made until Friday 18 June on the Have Your Say website.

An Arrernte woman from Alice Springs is the first recipient of a new scholarship program established to improve pathways for First Nations people to become lawyers. Mikeyli Hendry, a final-year student in Arts and Law at the University of Adelaide, received the inaugural First Nations Scholarship from the Australian Academy of Law (AAL) in May. She will receive $5,000 and a 12-month period of mentoring by the AAL under the scholarship. Hendry, who is concentrating her studies on criminal law, human rights and family law, said she was grateful for the financial freedom the scholarship would afford her. “Not only will it give me the financial freedom to concentrate fully on my studies and afford the textbooks and support I need for my final year, but it will also help me afford to get back to Alice Springs to visit my family and maintain connections with my community,” she said. The AAL is a coalition of solicitors, academics, judges, students, and

barristers from across the nation’s legal profession. Chief Justice of the High Court of Australia Susan Kiefel is the organisation’s patron, and Alan Robertson SC is the President. Anthony McAvoy SC, Australia’s first Indigenous Senior Counsel, was part of the three-person selection panel deciding the recipient of the scholarship, alongside Southern Cross University Professor Bee Chen Goh and UTS Law Professor Larissa Behrendt AO. Each member of the panel is a Fellow of the AAL. “I left the interviews feeling inspired and reminded that we have come a long way since I was in their position as a young student,” said McAvoy. “I am sure Mikeyli will benefit greatly from the AAL’s generosity and go on to be a fantastic advocate for her people and thereby add significantly to the justice system as a whole.” Hendry said she was determined to practise law and would be happy to work anywhere when she graduates, but her ultimate goal would be to return to her community and use her legal skills to assist First Nations Peoples.

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NEWS

COURTS A fresh look for Sydney’s ‘grand old dame’: DowningCentre unveils $10mmakeover

From boutique fashion house to revitalised engine room of justice: Sydney’s Downing Centre court complex debuted a fresh new look last month. It comes with new courtrooms, a dedicated space for the Drug Court, and a long- awaited bathroom makeover. NSW Attorney-General Mark Speak- man joined Senior Judge of the Drug Court Roger Dive and NSW Chief Mag- istrate Judge Graeme Henson to tour the facilities and formally unveil the court’s $10.6 million renovation on 19 May. Law Society of NSW President Ju- liana Warner also joined guests for the opening, which took place inside a new courtroom that will be used by the Drug Court on its weekly sitting day, as well as

a District Court on other days. Speakman told the crowd the reno- vation would “[add] a new lustre to this jewel in our architectural heritage … the grand old dame of Sydney’s architecture” and described the improvements as “the best in heritage and innovation”. Before it became a court complex in the early 1990s, the Downing Centre enjoyed a rich history as the Mark Foys Department Store, hosting fashion balls and even an ice rink in the 1950s. Prior to COVID-19 associated lockdowns and a pivot to online hearings, the Downing Centre welcomed between 1,000 and 1,400 court users a day. It remains the largest court complex in the Southern Hemisphere.

A critical part of the refurbishment is a designated space for the Drug Court and meeting rooms for the legal and support services that collaborate in the program. Judge Dive told LSJ “it’s fantastic to have a purpose-built courtroom”, as pre- viously the court had been relying on “the grace” of sharing Local Court facili- ties. He hoped it would be “a catalyst” to expand the successful program. A 2020 evaluation by the NSW Bureau of Crime Statistics and Research revealed those who participated had a 17 per cent lower reoffending rate compared with non-participants. The update also adds a new safe room for victims and complainants in sexual assault and domestic violence cases.

For registration visit www.tlc.asn.au Seminars on: E-CONVEYANCING & ITS FUNDAMENTALS Saturday 19 June EMPLOYMENT & INDUSTRIAL LAW Friday 30 July RULE 6.1 SEMINAR Saturday 31 July CRIMINAL LAW Saturday 6 November FAMILY LAW Saturday 13 November Intensive workshops on: ADVOCACY Saturdays 9 & 16 October LAND TAX Friday 22 October PAYROLL TAX Saturday 23 October E-CONVEYANCING WITH PEXA Friday 29 October

PROCESS IMPROVEMENT Wednesday 30 June 2021 1.5 CPD units Learn more and register lawsociety.com.au/flip-buzzwords

ISSUE 78 I JUNE 2021 I LSJ 21

Briefs NEWS

EMERGING TRENDS Fixed fees on the rise for small law

For the full round-up of Law Society advocacy, see page 66.

Review of the Data Sharing (Government Sector) Act 2015

Legal bill shock could become a thing of the past, if a recent trend of clients demanding fixed-fee pricing from small law firms and conveyancers continues. A survey of 134 small law firms across Australia by Smokeball in February 2021 revealed almost half (43 per cent) of small firms and conveyancers had seen an increase in requests for fixed-fee pricing over the past year. Firms in NSW reported a 50 per cent increase in requests for fixed fees. Most lawyers quoted market forces and a need for bill certainty as reasons for the trend. But firms also said there were reasons for lawyers to opt for fixed fees as a preference to timesheet billing: there was a rising unwillingness among clients to pay large legal fees, even for work that has been completed. Firms noted one of the difficulties of moving to fixed-fee arrangements came in managing profitability through the process. A quarter (24 per cent) of NSW firms reported that matters often took more time than they felt they could bill in a fixed-fee arrangement. Firms also reported clients tended to shop around for cheaper rates that may not reflect the work done. “The most important thing ... is that one price doesn’t fit all so you need to build a scope for your fixed fee prices that can be moved up or down depending on the client’s needs, complexity, timing and where the matter may go,” said Clarissa Rayward, Director and Creator of the Brisbane Family Law Centre. More than half of firms surveyed (53 per cent) expected an increase in fixed-fee pricing in the next year. Only 12 per cent did not expect an increase, and 35 per cent were unsure. Four newLocal Court magistrates The Law Society of NSW has welcomed the appointments of four new magistrates to the Local Court of NSW in May. Attorney-General Mark Speakman announced the appointment of Magistrates Michael Ong, Kasey Pearce, Gareth Christofi and Rebecca Hosking on Thursday 20 May. The new appointees will replace recently retired magistrates and will commence service in country regions after 12 months of training in Sydney. President of the Law Society of NSW Juliana Warner praised the appointments as recognising four people with considerable experience as solicitors. “Members of our profession play a valuable role in the community and in providing access to justice,” she said. “It is pleasing to see that this contribution has been reflected in these latest appointments and I have every confidence Mr Ong, Ms Pearce, Mr Christofi and Ms Hosking will make exceptional judicial officers.”

The Privacy and Data Law Committee con- tributed to a submission to the Department of Customer Service as part of the five-year stat- utory review of the Data Sharing (Government Sector) Act 2015 (‘ the Act ’). The submission focused on suggestions to ensure the Act en- hances the digital trust of citizens, by imple- menting transparency requirements, enhanced safeguards, and the adoption of good data shar- ing practices within and between government agencies The submission made various sugges- tions, including that consideration be given to amending the Act to control the effects of data analytics outcomes on an individual/cohort, and to ensure inferences made about an indi- vidual are fair and reasonable. The Property Law and Environmental, Plan- ning and Development Committees contrib- uted to a submission to the Department of Customer Service, responding to the Discus- sion Paper issued for the statutory review of the Strata Schemes Management Act 2015 (‘ SSMA ’) and the Strata Schemes Development Act 2015 (‘ SSDA ’). In relation to the SSDA , the Discus- sion Paper raised questions about the utility of the strata renewal process. In the committees’ view it does not appear to have been successful, as reflected in the small number of applications to the Land and Environment Court since the legislation commenced in November 2016. The Indigenous Issues Committee contributed to the Law Society submission to the Indige- nous Australians Agency on the interim report into the Indigenous Voice to Parliament. The submission focused on the proposals as they relate to the National Voice to Parliament. The submission echoed the comments previously made as a contribution to the Law Council submission. Statutory review of the NSW Strata Schemes Laws Interim report – Indigenous Voice to Parliament

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NEWS

Cross-examination Test your legal knowledge ...

Universal Music not gonna take it Clive Palmer has been ordered to pay $1.5 million in damages to Universal Music for using a rendition of the Twisted Sister hit “We’re no connection to the Twisted Sister origi- nal, and subsequent- ly ordered Palmer to pay interest and court costs. A state- ment by the Universal Music Group defended the rights of songwriters, saying “the court’s determina- tion sends a strong message about the unauthorised use of music”. Out of ‘toon’ with the real Morrissey Not Gonna Take It” in advertisements for his United Australia Party in 2019. Channel Nine reported that the Federal Court ruled in Universal Music’s favour, ordering the removal of all copies and uses of Palmer’s rendi- tion across different media, in- cluding his website. Twisted Sister lead singer Dee Snider tweeted in celebration of the victory, stating “WE’RE NOT GONNA TAKE COPYRIGHT IN- FRINGEMENT ANY MORE!” Justice Katzmann deemed it “fanciful” that Palmer’s rendition had

CREATIVE COMMONS

1.

The Treaty of Paris in 1783 officially ended what conflict? The Federal Government must call an election by the end of 2021, true or false? What is the minimum number of directors a public company must have in Australia? Which former Australian High Court Justice wrote the High Court’s longest judgment to date (165 pages)? Who was Australia’s youngest ever Prime Minister to assume office? Of the two actresses who play Kath and Kim in the namesake Australian comedy, which obtained a law degree?

2.

3.

A public row has erupted between musician Morrissey and the writers of The Simpsons over a guest character bearing a striking resemblance to the former Smiths’ front man. According to The Guardian , Mor- rissey wrote a public letter suggesting that The Simpsons’ creators were “taunt- ing a lawsuit” with the cartoon, and ac- cusations against his character of being racist were unfounded. This is not the first time in recent years that Morrissey has found controversy, having attracted

criticism from fans after wearing a badge in support of the UK’s far-right party, Britain First, on a performance for The Tonight Show. The episode’s writer, Tim Long, has defended the show by stating that the character depicted was a inspired by a number of famous rockers, not just Morrissey. “The character is definitely Mor- rissey-esque, with maybe a small dash of … Ian Curtis from Joy Division, and a bunch of other people,” Long said.

4.

5.

6.

7.

How many seats are in the Australian House of Representatives?

An unlucky streak According to South Australian newspaper The Advertiser , a topless 27-year-old man has been charged for running onto the Adelaide Oval during an AFL match on Saturday 8 May. The man, donning white shorts and an impressive mullet hair- cut, adhered to at least one COVID-19 rule and wore a face mask for the stunt. Several security guards chased and caught him by tackling him to the ground in the middle of the field. He was arrested at the scene for “entering field of play” and will face a minimum three-year ban from Adelaide oval and up to $5,000 in fines. He is set to face court at a later date.

8.

Who is Chief Justice of the United States Supreme Court? Which Australian former politician was recently elected Secretary General of the Organisation for Economic Co-operation and Development (OECD)?

9.

10. How many countries are permanent members on the UN Security Council?

Answers on page 63

ISSUE 78 I JUNE 2021 I LSJ 23

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