LSJ March 2015

MARCH 2015

ASUNBURNT COUNTRY

THE COMPLEX REALITIES OF REMOTE, RURAL AND REGIONAL PRACTICE

THESOCIALMEDIATRAP HOW TECHNOLOGY IS CHALLENGING LAWYERS’ ETHICAL OBLIGATIONS THEMURKYWORLDOF SURROGACY A WARNING FROM CHIEF JUDGE JOHN PASCOE OUT TOSEA THE TAMIL ASYLUM SEEKER CASE OFF YOURTROLLEY BEHIND FAIR WORK’S COLES RULING HIDDENTREASURES AN OFFBEAT GUIDE TO PARIS

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13 LSJ I JUNE 2014

PRESIDENT’S MESSAGE

T he Productivity Commission Report into Access to Justice Arrangements was high on the agenda at the Opening of Law Term Dinner in February. In his address, Chief Justice Bathurst spoke at length on the Commission’s recommendations, warning against a court system in which the extent of access to justice is assessed on a case-by-case basis “with fees levied on the basis of a futile attempt to measure the positive bene t of an individual matter”. To my mind, access to justice must not be dependent upon one’s capacity to pay, and barriers such as excessively high ling fees should be resisted. As part of our State Election Policy Platform, the Society is calling for reasonable controls on further court fee increases. is will signi cantly bene t those on low incomes who wish to access the court system. Adequate services are critical to ensuring fairness and e ciency in our court system. Due to recent funding cuts, only those facing imprisonment or those with “special circumstances” now receive legal aid. A project that has felt the pinch is the Aboriginal Legal Service legal advice phone line, implemented following the Royal Commission on Aboriginal Deaths in Custody. is 24-hour service has greatly improved the well-being and access to justice for Aboriginal people in police custody. In February, the Society held the rst of its ve Regional Presidents’ Conferences for 2015. At this meeting the issue of court funding came up once again. e Society is particularly concerned about the impact of resourcing pressures in regional and suburban areas, with some Local Court sittings moved or reduced in number. is has led to a blowout in the time taken for matters to come before the courts. With the state election fast approaching, the Society continues to press all political parties on key access to justice issues. Finally, I am encouraging practitioners to raid the kitchen cupboard and dust o those old family recipes as part of the Law Society charity cookbook project. All proceeds from the sale of the book will go to go to my chosen charity for the year, Motor Neurone Disease New South Wales. Stay tuned for more information on how to contribute.

MARCH 2015 I LSJ 3

A WORD FROM THE EDITOR

ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer

e content in this edition of the LSJ is as diverse as the membership itself. Our cover story, Beating around the Bush, penned by associate editor Jane Southward, is a comprehensive round-up of the current state of a airs for regional, rural and remote practitioners and provides some valuable and sometimes surprising insights into the challenges and rewards solicitors face outside the cities. Our second feature, Desperately Seeking Information by Stuart Teicher, tackles a topic many solicitors nd confronting: social media and how changing technology a ects the way in which lawyers meet their ethical obligations. e article serves as a reminder that this is an area about which practitioners cannot a ord to be lax – as the results of complacency could be disastrous. Our third feature, Babies without Borders by Julie McCrossin, deals with the murky world of surrogacy, with Chief Judge John Pascoe issuing a frank warning about the roles Australian solicitors are playing in this morally grey area. It is nothing if not a thought-provoking piece on the potential e ects our actions have on the lives of others.

Michael Nguyen Photographer Jason McCormack Editorial enquiries journal@lawsociety.com.au Business Development Manager Melissa Cossar Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Cha ey

Contributors

Michael Bradley is managing partner of Marque Lawyers.

Catherine Bembrick is a senior associate at Allens and will join

Jane Southward has been a journalist at Fairfax and ABC Life etc magazine and is the LSJ ’s Associate Editor. In this issue she unearths some truths about legal practice in the bush. Beating around the bush p28

Julie McCrossin is a writer and trainer who studied law. She interviews Chief Judge of the Federal Circuit Court John Pascoe on his misgivings about the role of Australian lawyers in international surrogacy law. Babies without borders p40

Following last month’s cover story 10 Laws that Need to Change , he looks at some of NSW’s archaic and peculiar laws. Hot topic p24

5 Wentworth Chambers as a barrister in May. She covers consumer law: ACCC v Fisher & Paykel Customer Services [2014] Legal updates p86

Cover photograph: Matt Lyster, Community Lawyer, Broken Hill

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

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CONTENTS

28 36

FEATURES

24 HOT TOPIC Michael Bradley delves into the often hilarious world of some of NSW’s most antiquated laws 28 COVER STORY Jane Southward gives a comprehensive round-up of the current state of rural and regional practice 36 ETHICS AND SOCIALMEDIA Ethics expert Stuart Teicher

40 BABIESWITHOUT BORDERS Julie McCrossin talks to Chief Judge John Pascoe on the blurred lines around surrogacy 54 MENOPAUSE Dr Nicola Gates talks us through the must-knows around menopause 56 THEWHITE STUFF Nutritionist Joanna McMillan reveals why it’s time to avoid most white foods

57 FITNESS

Why mixed martial arts are a useful way to build strength, fitness and confidence 58 WORK-LIFE BALANCE Professor Janet Chan looks into the latest report on depression in the law 60 CITYGUIDE Your guide to 24 hours in Paris 64 YOUWISH

warns that technology is creating new ethical challenges for lawyers

Dominic Rolfe discovers paradise and an award- winning spa in Phuket

6 LSJ I MARCH 2015

40

48 60

REGULARS

LEGAL UPDATES

8 MAILBAG 10 BRIEFS

44 CAREERHUB 48 ADAY INTHE LIFE Jane Southward

68 LAWSOCIETY ADVOCACY 70 NATIONAL UNIFORMLAWS: OVERVIEW 72 IMMIGRATION: TAMILS AT SEA CASE 74 ELECTRONIC EVIDENCE: PART 2 76 TORT LAW: PROPORTIONATE LIABILITY 78 NEGLIGENCE: ADVOCATES IMMUNITY 80 ETHICS: FAQS 81 LEGAL RISK: THE DISHONESTY EXCLUSION 82 PROPERTY: THE CASSEGRAIN RULING 84 CLASS ACTIONS: LITIGATION FUNDING 86 CONSUMER LAW: ASIC V FISHER & PAYKEL 88 EMPLOYMENT: FWA V COLES RULING 90 WILL & ESTATES: PARENS PATRIAE 92 PROPERTY: E-CONVEYANCING 94 CASENOTES: HIGH AND FEDERAL COURTS 96 GENERAL PRACTICE: CRIMINAL AND FAMILY LAW

News and events from the legal world

meets IJM Australia CEO Amber Hawkes

12 PROFESSIONAL NOTICES 18 FROMTHE ARCHIVES 19 CAREERMOVES Who moved where this month 20 OUT ANDABOUT 22 GLOBAL FOCUS Legal news from around the world 26 PEARLSOFWISDOM Tom Bathurst CJ 27 LIBRARY ADDITIONS

50 TECHNOLOGY

The future of e-trials and how it affects you

52 MENTORING

Zac Armytage and Jason Behrendt

66 LIFESTYLE

The latest in wine, books and events 106 EXPERTWITLESS Legal news to make you giggle

New books at the Law Society Library

MARCH 2015 I LSJ 7

MAILBAG

Costs Advice

LETTERS TO THE EDITOR

That ol’ chestnut The LSJ’s lead article for February 10 Laws That Need To Change was a great idea. Many of us have opinions on what should or should not be in the top 10. The need to reform the Victims Rights and Support Act 2013 (NSW) is an old topic which was well and truly flogged around May 2013. The O’Farrell government rushed the Bill through with one token amendment for child sex abuse survivors. The Christian Democrats were useless. I think at the time Fred Nile was o on holidays with his new girlfriend and nobody at his o ce could be bothered with a Bill which slashed entitlements for the state’s most vulnerable. On the one hand, Victoria is having a Royal Commission into family violence while NSW, on the other hand, slashed awards for domestic violence victims down to $1500, barely the cost of one month’s rent. But the hottest topic of law reform in NSW right now is the government’s plans to abolish the limitation period for child abuse civil actions. This completely missed the list. There is every chance that the new regime will lead to some of the biggest class actions in Australian legal history. The Catholic Church will lose so many assets they might even end up meeting in houses. Submissions on the proposed reforms from those interested are due with the Attorney-General on 10 March. Peter Kelso, Newcastle Unearthing hidden treasure I enjoyed the article in the December issue of the LSJ entitled Tree Change: The Perks of Regional Practice and the September 2014 article entitled Way out west – the unique kind of legal practice . Our firm has developed a law clerk program whereby younger members of the community, together with the “hidden treasure” referred

ISSUE8 FEBRUARY2015

FEBRUARY2015

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WRITE TO US: 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: letters@lawsociety.com.au Please note: we may not be able to publish all letters received. CONGRATULATIONS! Peter Kelso has won lunch for four.

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8 LSJ I MARCH 2015

to below, are encouraged to complete their law studies by distance learning. What is “hidden treasure”? The hidden treasure within every legal o ce is the mature paralegals and law clerks who have great practical skills and experience but do not have formal qualifications. The solicitor shortage in the bush could be cured if country practices encouraged and supported their hidden treasure to complete their law studies. For example, we have the following paralegals studying law or have completed their study: Tanya Longmore, who worked at our Junee o ce and is based at our Wagga o ce, agreed to study law after the last of her children started primary school. Tanya has now been admitted for approximately two years and is in her 30s. She is a great, practical, down-to-earth employee whose connections to the community should ensure she will have a long-term commitment to our firm. Deborah Boardman is at our Tumut o ce. We have had di culties employing a permanent solicitor at there and Deborah, who has a young family and has worked in legal firms in the Newcastle area, has commenced the LPAB Program and has completed nine subjects. Sue Fifield, based at Coolamon O ce, has worked with our firm for 12 years. Sue has three children and is completing her law studies through Southern Cross University, Lismore. Sue is my personal assistant and has great communication skills and a great future as a lawyer. Our firm has five directors, six licensed conveyancers, and 16 solicitors with o ces at Wagga Wagga, Henty, Tumut, Junee,

Coolamon and Ganmain, at which we have either a solicitor, senior law clerk who is still studying, or a licensed conveyancer. Our aim is to have a full- time solicitor in each o ce. Our firm has two female directors and there will be a new female director, as at 1 July, in her 30s. One of the directors decided to have her children before advancing to a directorship, whilst the other has had her two children whilst working. Both directors originally come from the Riverina and have partners who have their careers in the country. In the past two years we have had five (three men and two women) admitted as solicitors through our law clerk program. We pay for the cost of subjects, study leave and a travel/ accommodation allowance. Country practice has a future if we utilise the existing skills we have in our o ces on the basis that the ‘hidden treasure’ is encouraged to gain formal law or conveyancing qualifications. Bill Thompson, legal practitioner director, Commins Hendriks Tweets Great article by @timsout the @LawSocietyNSW Journal celebrating the impact of the Racial Discrimination Act on Indigenous people and rights. Also great in the LSJ @JulianBurnside’s Sydney Peace Prize Lecture. Loving the social justice themes in this edition @LawSocietyNSW. @LucindaMade Great to read about @BarkerCollege victory at the 2014 Mock Trial in the @LawSocietyNSW journal today. @amanda_mcleod_

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MARCH 2015 I LSJ 9

BRIEFS NEWS

COFFSCOURTHOUSE SETS STANDARD The new Coffs Harbour Courthouse has raised the benchmark for justice facilities in regional NSW, according to Member for Coffs Harbour Andrew Fraser. “Victims of sexual assault can be chaperoned into the courthouse via a private entrance and give video evidence from a secure room.” NSW ATTORNEY-GENERAL BRAD HAZZARD Fraser officially opened the four-storey courthouse at the $73 million Coffs Harbour Justice Precinct with NSW Attorney-General Brad Hazzard last month. “This courthouse is 50 per cent larger than the old courthouse and is packed with technology that rivals anything you’d see in any capital city,” said Fraser. “With five courtrooms, it will host District and Supreme Court jury trials, Local Court, Federal Circuit Court, Industrial Relations Commission, Fair Work Commission and NSW Civil and Administrative Tribunal hearings and mediations. All courtrooms have LCD screens to broadcast bail applications made from prisons and testimony from offsite witnesses.” Hazzard said the courthouse design would reduce contact between victims of violent crime and offenders. “Victims of sexual assault can be chaperoned into the courthouse via a private entrance and give video evidence from a secure room,” he said. The courthouse, which is fully accessible to people with a disability, also features jury assembly and deliberation rooms, a large public waiting area with electronic screens to display case information and a computer kiosk for browsing legal information online, 15 interview rooms, including one with videoconferencing facilities so lawyers can seek instructions from clients in prison, and offices for NSW Legal Aid, the NSW Office of the Director of Public Prosecutions and the court liaison officer for the Justice Health & Forensic Mental Health Network. Fraser said the construction of the precinct had injected millions of dollars into the local economy and provided more than 600 local jobs.

The new Coffs Harbour Courthouse opened by (centre, bottom) Attorney-General Brad Hazzard and Andrew Fraser.

NEWLEGAL SERVICESCOMMISSIONER

Award-winning solicitor John McKenzie is the new Legal Services Commissioner for NSW. NSW Attorney-General announced the appointment in late January, saying, “Mr McKenzie is a distinguished jurist who has won multiple awards for his work as a criminal lawyer and for his commitment to improving access to justice, particularly for Aboriginal people. He has displayed the utmost integrity throughout his 36-year career and has the skills and experience necessary for the role of regulating the legal profession”. The Office of the Legal Services Commissioner is an independent statutory body that deals with complaints about NSW lawyers. It has the power to take disciplinary action against solicitors and barristers and helps resolve consumer disputes over legal services.

Prior to being appointed Legal Services Commissioner, McKenzie served for eight years as Chief Legal Officer of the Aboriginal Legal Service (NSW/ACT). He won the Law and Justice Foundation’s Justice Medal in 2011 for outstanding achievement in improving access to justice. He also received the Terry Keaney Memorial Award in 2009 for outstanding service as a defence criminal lawyer. McKenzie was a principal solicitor at the Royal Commission into Aboriginal Deaths in Custody between 1987 and 1991 and in the years that followed he remained committed to ensuring its recommendations were implemented. He has also held senior positions at the Many Rivers Aboriginal Legal Service, Legal Aid NSW and the Public Interest Advocacy Centre. McKenzie will begin a four-year term on 4 March.

10 LSJ I MARCH 2015

BRIEFS NEWS

JOHNEADESOUTLINES 2015AGENDA Law Society of NSW president John Eades outlined his agenda at the Opening of Law Term dinner last month. Focusing on ethical obligations, the society’s representational role in the NSW State Election, and member services, Eades said he will continue to press all political parties for their responses and engagement on key issues identified in the Law Society’s State Election Policy Platform. “This focuses on key issues including a balanced criminal system, protection of legal rights and access to justice,” said Eades. He said he was concerned that in the past three months of 2014 the number of juveniles on remand increased by 52.1 per cent. “Diversion of young people is vitally important because the earlier a child comes into contact with the youth justice system, the greater the risk of related o ending,” he said. Being from the country, Eades said he was also highly conscious of the specific needs facing rural practices. “I intend to visit all the regional and suburban law societies, as well as continuing our normal program of actively engaging with corporate and government solicitors. The Law Society shall also expand its support for members through its growing Continuing Professional Development o erings and rich program of face-to-face and online courses,” he said. Chief Justice of the Supreme Court Tom Bathurst delivered the keynote address at the dinner. For an extract of his speech, see page 26. For photos of the event, see page 20.

NEWTRISTAN JEPSON MEMORIAL FOUNDATION CHAIRMAN

248,206 HOURS

Former Chairman of ASIC Alan Cameron AO has been appointed as Chairman of the

Tristan Jepson Memorial Foundation (TJMF) to replace Keith Mason AC QC, former President of the Court of Appeal of NSW. Cameron is a lawyer and company director who stepped down at the end of 2014 after seven years as Deputy Chancellor of the University of Sydney. In accepting the role, Cameron, pictured above, paid tribute to his predecessor, stating: “Keith chaired the foundation through a remarkably successful period in raising awareness of depression and anxiety in the legal profession. His years of dedication and service in the role of Chairman gave rise to the launch of our Psychological Wellbeing: Best Practice Guidelines for the Legal Profession and in less than a year boasts 88 signatories. He has overseen in these guidelines what is, unquestionably, the most important initiative ever undertaken to address the issue of wellbeing in the legal profession.” TJMF Founder and Executive Director Marie Jepson welcomed the appointment and acknowledged Mason’s contribution.

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MARCH 2015 I LSJ 11

PROFESSIONAL NOTICES The Council of the Law Society of New South Wales, at its meeting on 15 January 2015, resolved to suspend the practising certificate of Alan Charles Powrie pursuant to the provisions of section 588(1) of the Legal Profession Act 2004 . The Council of the Law Society of New South Wales, at its meeting on 15 January 2015 resolved that the application for a practising certificate by Cesar Montenegro for the year ending 30 June 2015 be refused pursuant to section 48(1) of the Legal Profession Act, 2004 . On 22 January 2015, by resolution of the Council pursuant to section 616(2) (b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as Manager of the law practice known as Ralston IP Pty Ltd formerly conducted by Susan Louise Darmophil – no conduct issues. NSW judges marked the return of the 2015 law term with the annual Red Mass at St Mary’s Cathedral in February. About 50 judges and magistrates from Supreme, District and Local Court level attended the ceremony, with a homily delivered by Archbishop Anthony Fisher who called on all Australians to renew “lost values”. “We must renew that social and spiritual capital, and that is a task for both Church and State, for high- minded jurists and down-to-earth citizens,” Archbishop Fisher said. PHOTOS: GIOVANNI PORTELLI, THE CATHOLIC WEEKLY OPENINGOF LAWTERM

CULTURALDIVERSITYEXPLORED An upcoming Sydney conference, organised jointly by the Migration Council of Australia and the Australasian Institute of Judicial Administration (AIJA), promises to help lawyers working in Australia know how to ensure justice for clients from culturally diverse backgrounds Expert panellists at “Cultural Diversity and the Courts: Access to justice in multicultural Australia” to be held on 13-14 March at Sydney’s Sofitel Wentworth Hotel will be sharing strategies on topics including working with interpreters, best practice for judicial officers in a multicultural courtroom, family violence and access to justice. Keynote and plenary speakers include the Hon Robert French AC, Chief Justice of the High Court of Australia and the Hon Wayne Martin, AC, Chief Justice of Western Australia and Chair of the newly established Judicial Council on Cultural Diversity. The Chief Justice of Victoria, the Hon Marilyn Warren AC, will speak on ways to aid public trust and community engagement, while the former Chief Justice of the Family Court, the Hon Alastair Nicholson AO RFD QC will address international perspectives on the access to justice. Speakers on “Justice, security and terrorism” will include the Hon Anthony Whealy QC, who presided over NSW’s landmark Pendennis counter-terrorism trials, and the Australian National University’s Dr Clarke Jones, an expert on the radicalisation of prisoners in jail and an opponent of the isolation and segregation of inmates with extremist views. Panellists in the session on representing multicultural clients will include the Supreme Court of Tasmania’s Hon Justice Helen Wood and barrister, refugee advocate and film-maker Jessie Taylor. The conference program and registration forms can be found at cdlc.org.au or at aija.org.au. The AIJA is a research and educational institute associated with Monash University.

12 LSJ I MARCH 2015

BRIEFS NEWS

LONG-SERVINGNSW CROWNSOLICITORRETIRES NSW Crown Solicitor Ian Knight (pictured) retired on 20 February 2015 after 20 years in the role. Knight joined the Crown Solicitor’s Office (CSO) as a legal clerk in 1970 and spent all but three years of a 45-year public service career advancing from its most junior legal role to its most senior. He served under 13 Premiers and 15 Attorneys-General. In 1981, Knight was appointed Assistant Crown Solicitor, Advising and Constitutional Law. Ten years later he was appointed Ombudsman for the Northern Territory and Delegate of the Commonwealth Ombudsman in the Northern Territory. Knight was appointed to succeed Hugh King Roberts in 1994 and returned from Darwin to take up the role. He played a key role in commercialising the CSO and in 1996 initiated a major restructure of the office, introducing nine specialist practice groups that replaced the four branches that had operated since the 1940s. Knight’s role was of national significance, ranging from helping to secure compensation for asbestos victims to great struggles over the foreign affairs and industrial relations powers, the constitutional settlement between the Commonwealth and States concerning Australia’s offshore areas and the severing of residual constitutional links with the United Kingdom by the Australia Act of 1986 .

He also served as a member of the NSW Legal Aid Review Committee, the State’s Officer to the Special Committee of Solicitors General, and as a member of the Australian Delegation to the UN Law of the Sea Conference. “Throughout his time as Crown Solicitor, Ian has shown great concern for the health of his staff. He has also sought to offer staff flexible family friendly work arrangements and a better life work balance,” Acting Practice Manager Amalia Stanizzo told the LSJ . “His leadership has helped define the Crown Solicitor’s Office and he will be missed by those who have worked with him.”

MARCH 2015 I LSJ 13

BRIEFS NEWS

The Law Society’s 2015 Election Policy Platform – Balance.Rights.Justice. – which featured in the December 2014 issue of the LSJ , sets out eight key areas in which changes should be made to the benefit of the NSW community, under three major themes: BALANCE.RIGHTS.JUSTICE. 2015 NSW STATE ELECTION POLICY PLATFORM: RESPONSE FROM POLITICAL PARTIES

In this issue, we reveal the responses of the NSW Liberal & Nationals, the NSW Labor Party and the Greens NSW on the issues of mandatory sentencing, workers compensation and legal representation. The responses are reproduced in full on our website at www.lawsociety.com.au/nswelection and make interesting reading for any practitioner. The Law Society was also pleased to receive responses from two independents: Mr Greg Piper MP, the Member for Lake Macquarie, and Mr Alex Greenwich MP, the Member for Sydney.

A balanced criminal justice system A balanced approach is essential to criminal justice, particularly in relation to the state’s new mandatory sentencing laws. The Law Society is calling on parties to reject mandatory sentencing, which we believe is unjust, ineffective and unaffordable, and to repeal laws which impose minimum terms of imprisonment. “The NSW Liberal & Nationals acknowledge that sentencing is a complex process and we want magistrates and judges to have the appropriate tools to ensure community confidence in the criminal justice system is maintained.” “The NSW Labor Party believes in the retention of judicial discretion in the face of calls for mandatory sentencing. We have considerable reservations as to the effectiveness or desirability of mandatory sentencing.” “The Greens oppose mandatory sentencing and mandatory minimum terms of imprisonment … We will remain true to these principles in the future, including in supporting the repeal of the existing one punch and mandatory minimum laws.”

Protecting rights Injury compensation matters remain a serious concern for the Law Society, with the full impact of the 2012 workers compensation reforms now being felt. The Law Society is calling for the 2012 provisions to be wound back and for real consultation to identify a system which is fair, efficient and affordable. “The NSW Government supports workers compensation schemes … that are fair, affordable, efficient and which provide proper support for those who are injured … The NSW Government is also considering the findings of recent reviews of the Workers Compensation Scheme and continues to look at ways the Scheme can be improved.” “NSW Labor will reverse the Liberal State Government’s workers compensation laws, including the provisions that prohibit workers from hiring legal practitioners to help them … We will restore journey claims and give injured workers the financial assistance they need to pay medical bills.” “The Greens support the return to fair and just workers compensation and work injury damages law in NSW … The loss of lump sum benefits, limits on weekly compensation payments and medical

Access to justice Over the years, we have seen changes in law and practice that constrain access to legal advice and representation. To acknowledge the critical role played by lawyers in securing access to justice, the Law Society is calling on all parties to affirm the role of lawyers in providing legal services and to give people the right to choose to have legal representation in courts and tribunals. NSW Liberal & Nationals : “We note that in the vast majority of cases individuals do have the right to have legal representation. However, legal representation is not always necessary. Where a matter is straightforward, allowing parties to be represented by skilled agents or to present their own case to the NCAT is an effective way to ensure disputes are resolved quickly and cheaply. This in turn makes the legal system more accessible to the community. There is capacity for the NCAT to grant people leave to be represented by a lawyer where appropriate.” NSW Labor: “ We support the principle of lawyers providing legal services to the community.” “The Greens support the importance of legal services being provided by an independent and well-regulated legal profession. People must have the right to seek to be represented by the lawyer of their choice.”

benefits have all caused significant hardship to injured workers. These changes must be reversed.”

14 LSJ I MARCH 2015

BRIEFS NEWS

WORKERSCOMPFORUMHITSTHEMARK A forum on workers compensation was held at the Penrith Bowling and Recreation Club last month, with many solicitors and members of the community attending to hear keynote speakers discuss the impact of changes to the system.

Organised by Steve Groves, a solicitor and personal injury accredited specialist at Lamrocks Solicitors & Attorneys in Penrith, a number of key issues were discussed, including: • That many people are finding the scheme overly-complicated and too heavily weighted in favour of return-to-work, at the expense of providing the support needed for injured workers; • There is a need for balance to be restored to the system so it benefits workers and provides value for money to employers; • Under the current system, if an injured person disagrees with their insurer’s decision, they have to seek an internal review from the insurer. If they still disagree, they must seek a review by WorkCover. If there is further disagreement, there is a further procedural review available from the WorkCover Independent Review Officer. This three-stage process must be navigated without legal assistance as the law effectively excludes access to legal support. Ros Everett, the immediate past president of the Law Society of NSW and a partner at Everett Evans Solicitors in Penrith, chaired the event. Dr Richard Deveridge, a Penrith-based surgeon with a medico legal practice in personal injury and negligence, also presented. In its State Election Policy Platform, the Law Society of NSW is calling on all state political parties to commit to the following changes: Restore fair compensation to injured workers; Reform the overcomplicated work capacity review process and abolish the restrictions on access to legal advice; and Fix the dysfunctional dispute resolution system for workers compensation disputes.

“The community is entitled to a workers compensation scheme that is fair, efficient and affordable andmost importantly supports the needs of injured workers.” ROS EVERETT

Dr Richard Deveridge, Steve Groves, Ros Everett and Michael Tidball.

Members of the community turned out in force.

MARCH 2015 I LSJ 15

BRIEFS NEWS

INTRODUCINGOURNEWCOUNCILLORSFOR2015

BLANKAMOSS, Sydney

ANDREWBOOG, Dubbo

Tell us about yourself (in a nutshell)!

Tell us about yourself I was born and raised in Dubbo and studied in Canberra. After graduation I worked in Penrith and then Broken Hill before returning to Dubbo. I am married with two sons, one of whom has four daughters (and so restoring his brother’s faith in cosmic justice).

I am a first generation migrant, having spent two years in a UN refugee camp in Italy. English is my third language and I love reading and learning the meaning of words.

Where do you practise and in which practice area? I have been a corporate lawyer for 25 years working in the construction/engineering field. I am General Counsel and Company Secretary at Schindler Lifts Australia P/L, a wholly owned Swiss subsidiary. Why did you become a solicitor? My earliest memories of wanting to become a lawyer are when, in my teens, I was introduced to shows such as Perry Mason and Divorce Court . I enjoyed the banter, the cross-examination and the fact that lawyers were portrayed as the good force against the bad – and, of course, the good always prevailed. The encroachment by other professionals in the area of legal work. Everyone seems to think you do not need to study law to do legal work. Another challenge for the young generation is the increasing specialisation of legal work, where young lawyers are expected to do leases and nothing else for a few years. The work becomes boring, repetitive and soul-destroying for intelligent, smart and capable young professionals. They are not challenged and many of them hit a realisation that the long years of hard study land them a job they are really not interested in doing. What are your priorities as a councillor in 2015? Because of my interest in young lawyers, I want to dedicate my priorities as a councillor to their cause and interests. I will continue to engage with and promote their cause within the Law Society. What do you see as the biggest challenges solicitors will face in 2015?

Where do you practise and in which practice area? I am based in Dubbo although we do work in much of the west. My practice is general although I try to specialise in business law. Why did you become a solicitor? I was interested in law as a career and my father arranged for me to speak with Gerry Peacocke, a local solicitor. I ignored his advice: “Don’t be a silly bugger. There’s got to be a better way to make a living”. What do you see as the biggest challenges solicitors will face in 2015? A reducing appreciation of the role sound legal institutions play in securing civilisation; there are more and more players on a contracting field; and the ever-heightening expectations of what lawyers can and should achieve. What are your priorities as a councillor in 2015? While the “high end” stuff (e.g. national profession, electronic conveyancing, international representation, liaison with governments etc.) is important, it must never be allowed to diminish our focus on those in the profession. There are many practitioners who struggle in many areas of professional and personal life. They are the reason the Law Society exists. We only deserve to exist while ever we can assist our members. If you could change anything about the legal profession, what would it be? To ensure that those wanting to join our ranks are aware that, while all the stories about the glamour, wealth, influence and luxury available to the profession generally are true, they are also about 100 years out of date; that there be a greater appreciation of the role our legal system plays in protecting the liberties and freedoms we enjoy in Australia; and that we behave as an ancient and honourable profession – and the wider community supports us in doing so.

If you could change anything about the legal profession, what would it be?

The current perception of our profession. We seem to be portrayed as a self-interested profession that society can do without. We need to recover our professional standing where we are seen as an integral part of society. Everyone will need our help and expertise sometime in their lives. We should be there whenever a member of our society needs us and give them the advice and assistance they deserve.

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BRIEFS NEWS

ANNMARIE LUMSDEN, Sydney

JODIE THURGOOD, Port Macquarie

Tell us about yourself

Tell us about yourself I was born and raised on a property outside Kempsey where my family bred beef cattle. After completing my studies, I moved back to the mid-north coast and now enjoy breeding beef cattle myself.

I was admitted in 1989 and started working in private practice as a personal injury lawyer before moving to Legal Aid in the ACT and then NSW. I am an accredited specialist in criminal law and have been an active member of the Law Society’s Criminal Law Committee since 2001.

Where do you practise and in which practice area? I have been a member of the senior executive team at Legal Aid NSW since 2006. My current role is Director, Strategic Policy and Planning and Community Partnerships. Why and how did you become a solicitor? Having grown up in NSW coastal towns, as a child I wanted to be a marine biologist. I was encouraged to do law and when I got the marks the challenge attracted me. Three biggest challenges solicitors will face in 2015? Lobbying effectively to minimise any adverse impact on the profession and our clients of the government and court response to the recommendations of the Productivity Commission report into Access to Justice Arrangements. This may present significant challenges to diverse areas of the profession in the way we deliver services, including public legal assistance services, and all solicitors involved in litigation. The introduction of the Uniform Legal Profession Act will present new compliance and administrative challenges, particularly for small suburban and regional and rural firms. I intend to do what I can to improve their lot with the limited legal aid dollar, but it is hard. What are your priorities as a councillor in 2015? My overall priority is enhancing the society’s relevance to the entire legal profession, supporting solicitors and providing better services through education and technology, and defending their role and the rule of law. Specific priorities are supporting initiatives to protect children in the care and protection legal system and which reduce current levels of incarceration, and in particular the overrepresentation of Aboriginal people in our jails. If you could change anything about the legal profession, what would it be? We need to be more effective in persuading government to respect individual rights and the rule of law, and to increase Legal Aid funding to provide greater access to justice. There is a growing justice gap for the working poor. We need to get better at embracing the use of technology in providing services to our clients and training our lawyers, particularly those clients and lawyers in rural, regional and remote NSW.

Where do you practise and in which practice area? I practise in Port Macquarie with Stacks Law Firm. I am an accredited specialist in personal injury law. Why and how did you become a solicitor? I was fascinated by the law in my teenage years and I enjoyed a constructive debate. However, I also possessed a keen interest in science and the human body. I decided to study both science and law. I managed to find the perfect medium in practising in personal injury. What do you see as the biggest challenges solicitors will face in 2015? The environment in which we practise is contracting and I see the attempt to exclude solicitors from tribunals and courts as a challenge for our profession. Furthermore, it seems the value of our services is depreciating and we are currently witnessing the infiltration of non-legal professionals into the legal industry, including the provision of legal advice on the internet. What are your priorities as a councillor in 2015? My focus will be on advancing the interests of regional practitioners and young lawyers. I appreciate the issues that regional practitioners face, especially young lawyers who start their careers in regional NSW. If you could change anything about the legal profession, what would it be? I would like to see the members of the legal profession unite to confirm the value of our services to the community. At times, the focus of legal professionals seems to be on overcoming their opponent and we lose sight of the fact that our profession itself is not immune to attack.

MARCH 2015 I LSJ 17

BRIEFS FROM THE ARCHIVES

review THE YEAR IN 1986

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

THEAUSTRALIACARD The nation debates the idea of a national identification card. The Law Society of NSW, led by president Kim Garling, opposes the introduction of the Australia Card saying it would be “ine ective” and its introduction “costly and wasteful”.

“The Society believes the Australia Card would be nugatory,” the Journal reports. “Honest people would remain honest but encumbered by the card; dishonest people will remain so – una ected by the card, yet having it available as an additional tool.”

AFFIRMATIVE ACTIONBILL INTRODUCED The Bill is introduced to improve equity in the Australian workforce and establish the A rmative Action Agency. The aim is to promote equal opportunity for women in employment and eliminate discrimination by employers against women. (In 1999 the agency was changed to the Equal Opportunity in the Workplace Agency.) The Journal reports that Prime Minister Bob Hawke stresses that the government’s a rmative action bill “does not propose positive discrimination or reverse discrimination”. “We are totally opposed to the use of quotas and this legislation, by stating that all action is to be based on merit, makes this clear,” Mr Hawke says.

16.1 per cent of the profession is female (1,419 solicitors of a total of 8,836) 16.5 per cent of the profession are sole practitioners (1,460) 2.4 per cent are unemployed (209) 2350 Total number of firms, 70 per cent of which are city or suburban firms LAWYER DEMOGRAPHICS NSW1986

INTHENEWS The first cases come before the courts following the introduction of the De facto Relationships Act two years earlier. The Australian Human Rights Commission is established under A ustralian Human Rights Commission Act 1986. It is now unlawful to discriminate against people because of their race, colour, sex, aged, religion and politics, among other things. New evidence emerges in February 1986 when Azaria Chamberlain’s matinee jacket, which the police had maintained did not exist, is found. This discovery supports the legal case of Azaria’s mother, Lindy, who is released five days later after four years in jail.

THEFACTSABOUTFAX The Law Society Journal celebrates the facsimile with a three-page report on its benefits. Fax machines are selling for between $3,900 and $8,500 in 1986. “It is as simple as making a phone call, then feeding the original document into the ‘send’ facsimile machine connected to your telephone. A copy then immediately emerges from the machine at the receiving end,” the Journal reports. “The machine will transmit handwritten, typed or drawn material. It only takes a few minutes of simple instruction for anyone to learn how to use the facsimile e ciently and economically.”

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BRIEFS CAREER MOVES

MEMBERS ON THE

KATHERINE TOSHAK Now a principal McInnes Wilson Lawyers NSW

TIMOTHY BOWEN Now a special counsel DibbsBarker Sydney

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MARC BADDAMS Now a partner, litigation Swaab Attorneys Sydney

VERONICA SIOW Now a partner, workplace relations Allens Linklaters

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ARTHUR APOS Now a partner Baker & McKenzie

ALEISA CREPIN Now a partner Baker & McKenzie

MELINDA DI CONDIO Now a principal M+K Lawyers (Sydney)

JUSTIN SPROGIS Now a consulting principal Nexus Law Group

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

BRIEFS OUT AND ABOUT

OPENING OF LAW TERM DINNER 2015 About 260 guests turned out to hear Chief Justice Tom Bathurst and Law Society president John Eades deliver their keynote addresses for the opening of law term at Parliament House in Sydney last month.

VIEWTHE SLIDESHOW ON THE APP

PHOTOGRAPHY: CHRIS GLEISNER

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BRIEFS OUT AND ABOUT

MARCH 2015 I LSJ 21

BRIEFS INTERNATIONAL

global FOCUS

LEGAL NEWS FROM AROUND THE WORLD

UK EMBASSIESNOT IMMUNE FROMCLAIMS In a landmark ruling, three appeal judges have ruled that embassies cannot rely on state immunity to avoid being the subject of legal action in cases that “fall within the scope of EU law”, thus paving the way for workers to bring claims. The Times reports that Lord Dyson said the court accepts that its ruling might seem unfair, but added that “sometimes the apparent unfairness to an individual is outweighed by the harm that would be caused by a failure to give effect to diplomatic immunity”. The decision means UK-based embassies cannot claim state immunity as protection against legal action, but diplomatic immunity can still be claimed by diplomats themselves. Lord Dyson said the international community believes “diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, it also fosters good will and enhances relations between nations”. The ruling came as a disappointment for two overseas domestic workers who allege they were trafficked and harassed at the Saudi Arabian mission in London, where they worked for a diplomat and his wife. Both workers made claims to the Employment Tribunal saying they were victims of racial discrimination and harassment and that they had been paid below the minimum wage. The Anti-Trafficking and Labour Exploitation Unit greeted the decision with “delight”, but expressed “regret” over the court’s refusal to dissolve diplomatic immunity.

ENGLAND AND WALES REVENGE PORNTOBE CRIMINALOFFENCE

HONG KONG MAIDABUSECASE ENDS WITHGUILTYVERDICT A woman in Hong Kong has been found guilty of the mistreatment of an Indonesian maid in a case that drew worldwide attention because of its brutality. The BBC reports that Law Wan-tung was accused of causing grievous bodily harm, criminal intimidation and failure to pay wages. The maid in question, Erwiana Sulistyaningsih, returned to Indonesia for hospital treatment and testified in court in December that she was abused for several months before being sent home. The case drew intense scrutiny in Hong Kong, a city, in which residents employ about 300,000 maids, mostly from other parts of Asia. Law was found guilty of 18 of the 20 charges against her and was due to be sentenced as the LSJ went to press. After the verdict, Erwiana, who said she had been tortured, told the AFP news agency she was “very happy”. During the trial, the court heard that Law had beaten Erwiana with numerous objects including a mop and a coat hanger. At one point Law knocked her unconscious and deprived her of proper food She also forced a vacuum cleaner tube into Erwiana’s mouth, twisting it and injuring her lips. On another occasion, Law punched Erwiana so hard that her incisor teeth cracked.

Posting so-called “revenge porn” videos and photos on the web is on the way to becoming a criminal offence in England and Wales. The BBC reports that the Criminal Justice and Courts Bill , which has a specific amendment in relation to such actions, is set to receive Royal assent and become law. Offenders could face up to two years in prison. The amendment covers images posted on social networks including Facebook and Twitter and also those sent via text message. Scotland and Northern Ireland are contemplating similar laws. The new English and Welsh law classifies revenge porn as “photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”. The amendment covers images shared online and offline without the subject’s permission, and must be done with intent to cause harm. Physical distribution of images is also covered. The Scottish Government told BBC Newsbeat there were plans to consult on making revenge porn a specific offence. Northern Ireland’s Department for Justice said that while there were current laws to prosecute revenge porn offenders, ministers would nonetheless consider the case for a new offence.

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