LSJ - March 2016

MARCH 2016

OURMEDIALAWS ANDDEMOCRACY PETER GRESTE ONWHY FREEDOM OF SPEECH IS UNDER THREAT IN AUSTRALIA

THE INNOVATIONERA THE ROLE OF LAWYERS IN MALCOLM TURNBULL’S VISION FOR THE NATION

DON’TMESSWITHTHE PLUMBING: BATHURST EXAMINING LEGISLATIVE ENCROACHMENT WE’LL ALWAYSHAVE THE PARIS AGREEMENT WHAT DOES IT MEAN FOR CLIMATE CHANGE? WHYMENNEEDFLEXIBILITY, TOO A DAY IN THE LIFE OF A NEW-AGE LAW FIRM UNFAIRCONTRACTS ANDSMALL BUSINESS A LOOK AT CHANGES ON THE HORIZON

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CONTENTS

40 28

FEATURES

40 INNOVATION

22 HOTTOPIC

59 HEALTH

Lawyers can do more to facilitate entrepreneurial projects and prosper in Prime Minister Malcolm Turnbull’s “era of innovation”, reports Julie McCrossin 50 ADAY INTHELIFE Meet Jon Wright, who left Minter Ellison to join WorkDynamic Australia, a new-age firm that’s doing things a little differently 56 PSYCHOLOGY

Legislative encroachments of certain rights and freedoms is affecting the nature of the legal profession, says Chief Justice of the Supreme Court, the Hon. Tom Bathurst AC 28 COVERSTORY Three new Australian laws seriously undermine media freedom, argues journalist Peter Greste 34 CLIMATECHANGE Martijn Wilder of Baker & McKenzie explains why the agreement at last year’s

Aching feet? No wonder, as your feet have 52 bones and 38 muscles. Two podiatrists from Elevate health clinic give the lowdown on choosing the right shoe 60 CITYGUIDE Colombo in Sri Lanka will host the LawAsia conference in August. Enjoy our guide to the city’s best 64 YOUWISH Sri Lanka has been called “the world’s newest five-star destination”. Kate Allman test drives Cape Weligama and comes home satisfied

If you want to work better and stay calmer, working out your senstory profile can help. Psychologist Paul Phillips explains

Paris Climate Change Summit is so significant

MARCH 2016 I LSJ 3

54

56

60

REGULARS

LEGALUPDATES

8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS News and events from the legal world 16 PROFESSIONALNOTICES 16 THE LSJ QUIZ 19 CAREERMOVES Who moved where this month 20 OUTANDABOUT See photos from the Opening of Law Term dinner 26 INFOCUS Meet the new councillors 44 CAREERCOACH Women and “the wombat e ect” 46 CAREER101 Jesse Webb, Sparke Helmore

48 DOINGBUSINESS Etiquette and fashion with Carly Stephens, plus tips to improve your online presence 49 LIBRARYADDITIONS New books at the Law Society Library 54 EXTRACURRICULAR Stuart Clark, from Clayton Utz and the

70 ADVOCACY: THE LATEST IN LAW REFORM

72 CRIMINAL: DETAINING THE MENTALLY ILL

75 CONTRACTS: SETTLEMENT AGREEMENTS

76 CONTRACTS: SMALL BUSINESS REFORMS

78 INTERNATIONAL: TOBACCO PLAIN PACKAGING

81 RISK: SOCIAL MEDIA PITFALLS FOR LAWYERS

82 EVIDENCE: THE MISINFORMATION EFFECT

Law Council, shares his passion for volunteering at the Rural Fire Service

84 CIVIL: CIVIL PENALTY PROCEEDINGS

66 LIFESTYLE

86 UNIFORMLAW: TRANSITIONAL EXEMPTIONS

Book reviews, events and giveaways

88 WILLS: EXECUTORS & CONFLICTS OF INTEREST

68 NON BILLABLES

92 CRIMINAL: BAIL AND CHANGES TO PROCEDURE

Yarns we can’t bill for

106 EXPERTWITLESS Legal news to make you giggle

94 CRIMINAL: BAIL ACT 2015

AN OVERVIEW

96 CASENOTES: HCA, FCA, FAMILY, WILLS & ESTATES

4 LSJ I MARCH 2016

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A WORD FROM THE EDITOR

This “big picture” edition of the LSJ certainly covers some pretty hefty issues – from freedom of speech to climate change and innovation – all of which affect the rule of law, lawyers and society at large. Journalist Peter Greste’s address at UNSW’s annual Gandhi Oration, which we cover on our page 28 story “A matter of democracy”, is an insightful foray into some realities that we, as Australians living in a modern democracy, were perhaps unaware of. The piece raises serious questions about the balancing of

ISSN 2203-8906

Managing Editor Claire Chaffey Associate Editor

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

rights and the potential consequences of failing to do so. The Law Society was lucky enough to host Baker & McKenzie’s Martijn Wilder AM at a Thought Leadership event last month. Wilder attended the climate change talks in Paris late last year and his article on page 34, “Well below 2 degrees”, reveals why the historic agreement that was reached is more meaningful and powerful than those that came before. Finally, Julie McCrossin’s piece on page 40, “Innovation pain relief ”, on the role lawyers can play in fostering innovation in Australia is a reminder that, while the rule of law is crucial to a properly functioning society, lawyers must be aware that legal processes and procedure – if poorly managed – can stymie the very outcomes we are trying to achieve.

Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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 may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. 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.

Claire Chaffey

Contributors

George Williams is a leading constitutional lawyer and Professor at UNSW’s Faculty of Law. Fresh from six months research in the UK, he argues that Federal counter-terrorism laws impinge freedom of the press. Cover story p28

Julie McCrossin is a writer and trainer who studied law. She meets the team at UNSW Innovations and reports on the changing role of lawyers in Prime

Fiona Craig has trained, coached and mentored lawyers for more than 20 years. She explains how she loves wombats but believes “the wombat effect” is holding back women in and out of the workforce. Career coach p44

Ben Fogarty is a barrister at

Denman Chambers. In our legal updates pages he writes about the valid exercise of police powers under the Mental Health Act. Police detention of the mentally ill or mentally disturbed p72

Minister Malcolm Turnbull’s push for innovation projects. Feature p40

Cover photograph: Jay Cronan

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

NEXT ISSUE: 1 APRIL 2016

6 LSJ I MARCH 2016

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President’smessage

T

he latest Bureau of Crime Statistics and Research (BOCSAR) custody figures indicate that the NSW adult prison population grew by 12 per cent in 2015, reaching a record high in December 2015 of 12,121. According to BOCSAR, the key factors linked to the cumulative increase appear to be a higher rate of arrest for serious crime and an increase in the proportion of convicted offenders given a prison sentence. Of particular concern to those representing prisoners on remand is the recently observed practice of holding individuals in unsuitable police cells or court complexes for extended periods due to insufficient prison beds. The Law Society will continue to raise its concerns about the current record high NSW prison population and the impact on individuals detained within the NSW justice system. Judicial resourcing for the Family and Federal Circuit Court was foremost in the

minds of attendees at the year’s first Regional and Suburban Law Society Presidents Conference in February. It was agreed to make this a Federal election priority, given the serious consequences of delays for families seeking to resolve high-conflict parenting and financial disputes. The Law Society is aware of delays exceeding three years for matters to reach trial and urgent matters being allocated hearing dates in other registries, including Brisbane, because of the shortage of judges. Funding for NSW courts, and the recent closure of regional courts such as Brewarrina and Cobar, also was discussed. Resourcing issues are particularly acute in regional areas, where poor conditions in police cells and overcrowding are exacerbated by antiquated facilities. The NSW Land Title Registry underpins billions of dollars of economic activity for the State each year. The Torrens Title register has protected land title by government guarantee since 1863. It is concerning that the NSW Government appears to be forging ahead with the sale or lease of part of the operational functions of Land and Property Information (LPI), yet the scoping study has not concluded. Privatisation of key operational arms of LPI, including the land titling services, poses potential risks, including the need to preserve the immutable importance of certainty of title, to the NSW economy. Finally, the legal profession is undergoing profound change. Factors such as globalisation of the legal services market, changing client expectations, and the impact of new technologies are disrupting the old norm. It is vital that the Law Society is in a position to lead the profession in preparing for these changes. To this end, the Council of the Law Society recently resolved to establish a Standing Policy Committee to research, analyse and respond to these changes and help inform and shape the provision of legal services in NSW. I look forward to reporting on the work of the Society’s Futures Committee in the coming months. The Law Society of NSW has forged a close strategic partnership with LAWASIA: a confederation of some 46 legal bodies mainly from the Asian region. This relationship has culminated in The Law Society of NSW hosting the LAWASIA Secretariat. We are looking forward to welcoming the President of LAWASIA, Prashant Kumar, who is making an extended visit to Sydney in March. GARY ULMAN

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Mailbag

LETTERS TO THE EDITOR

Vale Jerrold Cripps QC I knew former judge Jerrold Cripps QC well. He was chairman of the NSW Legal Aid Commission for several years when I was its secretary. I thought I knew a lot about him, but it wasn’t until I read on 4 February the Timelines section of The Sydney Morning Herald that I realised how little I knew. This was due primarily to his abiding sense of humility. I remember an occasion when he arrived for a meeting of the commission. Our legal culture mostly has been one of conservatism and adherence to the rules of dress, decorum and dignity; the commission simply bristled with the pin-striped suits of judges, barristers and solicitors. Judge Cripps arrived right on time with appropriate demeanour but wearing a bright pink jumper. He carried off the moment beautifully with a self- satisfied grin: no-one said a word. A giant tree recently crashed in the forest of legal excellence; it will not be

Retired solicitors and volunteering potential The Seniors Right Service (SRS) is a community Legal Centre and, as such, our resources are never enough to satisfy the demand. We specialise in providing legal advice and assistance to older vulnerable disadvantaged people in NSW. We cover a range of issues including elder abuse and elder financial exploitation. We rely on volunteers to help us meet the demand for our services. While we have plenty of students (both law and other disciplines) wanting to volunteer, it occurs to me that there probably are plenty of retired lawyers in NSW who would be very happy to volunteer their services to keep their hand in and their minds active. SRS would be the perfect place for them to do just that. We are located near Central Station and open between 9 and 5. We are friendly and very supportive of all people who come to us (staff, volunteers and clients). We also do a lot of community education, so if a volunteer likes to get out and talk to groups of people, we can arrange that, too. Tom Cowen, Principal Solicitor

Harman Principle Revisited

I commend LSJ , and the authors, on the article by Gregory Sirtes SC and Michelle Castle, “The Harman Principle Revisited” in the LSJ February 2016 issue. In 1995, I found myself in a position of conflict as between compliance with express undertaking as to confidentiality) and an obligation to comply with a notice from the securities regulator, then the Australian my Harman implied undertaking (and an Securities Commission, to produce documents pursuant to its statutory power. The conflict was resolved by the Court, at first instance (Canberra) (1995) 13 ACLC 1611, 1660 and on appeal by the Court of Appeal (reversing Rolfe J by majority) (1996) 14 ACLC 80. The subject is important and those judgments are instructive. Aleco Vrisakis, Rylstone by Rolfe J in Ampolex v Perpetual Trustee Co

WRITETOUS: We would love to hear your views. 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! Aleco Vrisakis has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

replaced. Paul Hunt, Engadine

10 LSJ I MARCH 2016

International inspiration As a final year law student, reading the legal journeys of the lawyers (in February’s LSJ cover story “Frequent Flyers”) only confirms my thirst to work internationally. Students these days are given the taste for international experience on platters of opportunities – myself already having studied law in London, interned in public interest law in Beijing and planning to work in the Netherlands in the near future. Seeing the professional and personal lives of individuals working overseas only confirms that our futures are going to be based in shaping the international legal relations within an increasingly globalised world. I can’t wait for my passport to reflect my professional development in international law. Oksana Lutak Vale Linda Johnson Linda Johnson, a partner at King & Wood Mallesons and one of Asia’s leading insolvency and reconstruction lawyers, died in December 2015. Linda joined King & Wood Mallesons in 1989 and was made a senior associate in

Correction An article published in last month’s LSJ referred to Rachael Arnold as an “Australian Ironman Champion” and stated that she placed third in the “Ironman World

1994 and partner in 1997. She was devoted to her firm and, throughout her career embodied its culture of legal excellence. Her unwavering commitment to her clients’ best interests ensured she approached each of her cases afresh, bringing her well-known, meticulous attention to detail to every problem that she was asked to solve. Linda’s legal brilliance was widely recognised. Her accolades are too numerous to mention in this short reflection on her life. Clients regularly praised her ability to give strategic advice unmatched by her peers. In 2013, she was named Best Insolvency Lawyer at the Euromoney Women in Law awards for Australasia against opponent was matched by her reputation as a warm, caring and generous person. She was a great mentor to a long list of young lawyers who worked with her, many of whom went on to achieve significant careers in other firms and at the Bar. Linda was a great teacher of other lawyers not just within the firm. She taught post- tough competition. Her reputation as an exceptional lawyer and formidable courtroom

graduate insolvency classes at Sydney University and engaged the class in lively debate and often said she would have been a teacher had she not become a lawyer. Linda was devoted to the teams that worked with her. The solicitors fortunate enough to work for Linda were the recipients of an extraordinary training in the practice of law. Her door was always open to colleagues in need of her expertise or desirous of a friend willing to debate the points of their cases. Her generosity to her team was something that Linda herself never spoke of, but which her team knew well. Linda’s intellect, sense of fun, desire to engage and scrupulous honesty ensured that she earned the respect, admiration and loyalty of so many who had the privilege to work with her. She was determined to prevent her illness from interfering with her life for as long as she could. We are so saddened that her life has been cut short. She is greatly missed by the legal community, especially her partners, colleagues, clients and former team members at King & Wood Mallesons. Karen Coleman and Zoë Hillman

Championships” in Japan in 2012. This is not correct – she placed third in the Ironman Japan race in 2013, and although she is an Ironman, has never participated in Ironman Australia. The LSJ apologises for any confusion caused by this error.

Tweets

MARCH 2016 I LSJ 11

Briefs NEWS

Openingof lawterm ceremonies unite lawyers Judges and lawyers from across Sydney marked the return of the law term with ceremonies across major faiths in February. Legal professionals attended ceremonies at St Mary’s Cathedral, the Great Synagogue, and the Auburn Gallipoli Mosque. PHOTOGRAPHY: GIOVANNI PORTELLI/ THE CATHOLIC WEEKLY; GISELLE HABER; MUSLIM LEGAL NETWORK

12 LSJ I MARCH 2016

NEWS

UNPRECEDENTEDSUPPORTFOR ‘LETTHEMSTAY’ Public interest in the campaign to allow 267 asylum seekers to remain in Australia had been “inspiring” and “unprecedented”, according to the Human Rights Law Centre Director of Communications, Tom Clarke. In early February, the High Court rejected a challenge to Australia’s o shore processing regime in Nauru. The finding gives Immigration Minister Peter Dutton broad powers to transfer asylum seekers to Nauru as he sees fit. “How long is the Australian community prepared to tolerate this cruel ‘processing’ of innocent human beings who have no say about their

Clarification In the 2016 Law Society Diary, the Law Society failed to correctly attribute the content in the costs section, including the Probate Ready Reckoner, as a joint e ort between the Law Society Costs Committee and Pattison Hardman. The Law Society regrets this oversight and apologises for any inconvenience caused.

“We have doctors risking jail time, church leaders speaking out, protests on Sydney Harbour and rallies around the nation,” Clarke said. “We have never had a response like this to an issue before.” Among the asylum seekers who may be sent to Nauru are 37 babies. One, a toddler known as “Asha”, is in Lady Cilento Children’s Hospital in Brisbane as medical sta will not release her until “a suitable home environment is identified”. “All decisions relating to a patient’s treatment and discharge are made by qualified clinical sta , based on a thorough assessment of the individual patient’s clinical condition and circumstances, and with the goal of delivering the best outcome,” a hospital spokesperson said.

futures, and that is being carried out behind a veil of secrecy,” asked Human Rights lawyer Julian Burnside. “What has this country become? “Doctors have said clearly that sending children to detention on Nauru is child abuse. So the question for Malcolm Turnbull is this: ‘Will you deliberately condemn these children to child abuse, or will you show some human decency?’ As the LSJ went to press, lawyers from the Human Rights Law Centre said they feared the Turnbull Government was planning the quick return of asylum seekers to Nauru after it allegedly advised a 72-hour notice period for the deportations would soon be lifted, meaning they could be returned with little warning or legal help.

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Briefs NEWS

Newinnocence project unveiled A new innocence project at the University investigate claims of wrongful conviction. Undergraduate and postgraduate students in psychology and law now can apply to be supervised to review cases for individuals who have cleared a rigorous application process to have their convictions assessed. Not Guilty: The Sydney Exoneration Project seeks so- cial justice for those in need, according to Dr Celine Van Golde, the project’s founder and director. “Research shows eyewitness misidentification is by far the key cause of wrongful convictions, while other contributing factors can include false memories, false confessions, and laboratory error,” said Dr Van Golde. “The Sydney Exoneration Project applies forensic psychological research into memory and testimony to investigate these issues.” In the US, researchers estimate that between 0.5 and 5 per cent of American convictions are recorded against innocent individuals. However, there currently is no reliable national data on the prevalence of wrongful con- victions across Australia. Without an independent body mandated with powers and resources to investigate wrongful convictions, they can be difficult to identify. “Wrongful convictions happen in this country,” said Associate Professor of Evidence and Proof and Sydney Exoneration Project supervisor, David Hamer. ”But with- out any real mechanism to identify and address them, Australian legal systems are left without a clear picture and means of amending miscarriages of justice.” In Britain, an independent Criminal Cases Review Com- mission (CCRC) has the power to send or refer a case to an appeal court if it determines there is a real possibil- ity of a quashed conviction or reduced sentence. The CCRC’s work leads to the overturning of 20 miscarriages of justice a year. Between 2007 and 2014, NSW had a DNA review panel that failed to correct a single miscarriage of justice. But it operated on a more limited basis than the CCRC. It considered only the most serious cases and could act only where there was evidence capable of producing a DNA profile. The Sydney Exoneration Project will consider cases where no DNA evidence is available, but where other evidence, such as eyewitness error and false confes- sions, can verify a person’s innocence. The project, begins in March. of Sydney will combine forensic psychology with legal expertise to

COURSEOPENSUP WORLDOF FRANCHISING As the Australian franchise sector booms, lawyers are indemand more than ever. UNSW Business School’s JENNY BUCHAN explains why educating solicitors about franchising law is now more worthwhile than ever. Not so long ago, most commercial and litigation lawyers regarded franchise law as an interesting sideline but not one on which they would seek to build a substantial practice. International franchise law was in the same category. Ongoing legal education was taught face-to-face and, in my case, involved a tram ride to university after work a couple of times a week. Times have changed. The Australian franchise sector generates annual turnover of more than $140 billion. Domestically, franchisors, master franchisees, area developers and franchisees, as well as potential joint venture partners, retail premises owners, financiers, liquidators, suppliers, and other participants, seek legal advice on a wide range of legal issues. These range from intellectual property protection, compliance with the Competition and Consumer Act , public listing, mergers, establishing a suite of contracts, compliance with the PPSA, leasing, tax, insolvency and dispute resolution, to name a few. The involvement of lawyers does not stop at the coast. Having established their base, some franchisors quickly aspire to international expansion of their franchise systems. Foreign-born franchise systems also move to Australia, continuing a trend that began in the early 1970s when Pizza Hut and McDonald’s opened their first Australian outlets in Sydney and Hungry Jacks opened in Perth. Australian lawyers increasingly need to advise on franchising in an international context. At the international level, franchising is a practical and exciting aspect of global commerce. In March, business and legal experts from Australia, Britain, Canada, France, and the USA will run a Massive Open Online Course (MOOC) titled International Franchise Law: The World is Yours via the FutureLearn platform for six weeks (and again in September). The MOOC is based on a case study of a typical couple who decide to franchise their business. With the help of the experts they encounter some of the laws that have developed globally to support business format franchising both at home and in target foreign jurisdictions. In particular, learners will explore due diligence, franchise and master franchise agreements, franchise disclosure laws, intellectual property law, franchise disclosure laws, relationship laws, dispute resolution, competition law, tax law, exit options, and the recent emergence of social franchising. Links to resources such as legislation and franchise research are included. A MOOC is an interactive environment and is free. Participants will be invited to join discussion forums and to comment on issues that arise.

.

futurelearn.com/courses/international-franchise-law

14 LSJ I MARCH 2016

NEWS

LAWFIRMRECOGNISES YOUNGARTISTICTALENT

Global law firm Clyde & Co held its annual art award night at the Sydney office of Clyde & Co on 10 February. Twelve students were selected from Sydney’s National Art School, Sydney College of the Arts (COFA), and UNSW Art and Design to exhibit artworks as part of the firm’s global community art project. The project aims to foster the talent of graduating art students and aid their transition from art school into the commercial art world. Hannah Pembroke won the 2016 Sydney Art Award for her impressionist landscape, “Still Steal”, a grayscale depiction of city life in acrylic on canvas, pictured left. Adeline Musters from the Sydney COFA was highly commended for her piece, “A Permanent Place”, a metallic photographic print mounted on Dibond. Daniel Grosz, also from COFA, won the staff choice award for his oil on canvas work, “Ketzev I”. The works will be on display at Clyde & Co in Sydney until sold at a silent auction at the end of the year. The artists receive the full value of successful bids as well as payment for displaying their works.

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Briefs NEWS

Availabilityof judges restrictedby a lackof apension: GeorgeBrandis The Law Council of Australia is investigating reports by Federal Attorney-General George Brandis that a lack of access to pensions affects the retention and recruitment of Federal judges. On 9 February, Brandis told a Senate estimates hearing that Federal Circuit Court judges were hard to recruit because they were not offered a pension, and some judges moved to State courts to ensure they had a pension when they retired. Brandis’s comments come after retired Judge Giles Coakes last year criticised the failure to replace Federal Circuit Court judges soon after they had retired, and the Federal Circuit Court’s Chief Justice John Pascoe urged the Attorney-General to make more timely appointments of new judges. The slow process for appointment of new judges has led to severe delays in custody battles and distress for the family violence victims involved. Judge Pascoe said there was a growing caseload in Australia’s family law courts. Federal Circuit Court judges are the only Federal judicial officers excluded from receiving a pension under the Judges’ Pensions Act 1968 . Under the Act, other Federal judges who are over 60 and have served for 10 years are entitled to a pension, which is 60 per cent of their current salary. “It is vital that Federal Court appointments are made so as to avoid a lack of continuity in the courts,” said President of the Law Council of Australia Stuart Clark. “The Federal Government should investigate whether judicial pensions for Federal appointees who do not currently have access to them would make the retention and recruitment of federal judges easier.”

Cross-examination Test your legal knowledge ...

1. What does the “eggshell skull” principle refer to in tort law? 2. Which Sydney council recently was sacked by the NSW Government? 3. Name the controversial member of that council who is also facing charges of electoral fraud. 4. Who was appointed managing partner at Allens in January 2016? (Hint: see February LSJ Career 101) 5. What was the original Magna Carta written on? 6. Under the Corporations Act 2001 , what is the minimum number of board directors that a publicly listed company must have? 7. Name the government body responsible for administering the Act in question 6? 8. In contract law, what does the remedy of “specific performance” refer to? 9. Copyright law protects original ideas. True or false? 10. If you are a tenant renting an apartment in NSW, is it legal to sub-let the property to another person? Answers on page 67.

DOWNLOADTHEAPP THAT MAKES IT ALL LEGAL lawsociety.com.au/lsjapp

PROFESSIONALNOTICES

On 21 January 2016 and pursuant to s.82(1)(c) of the Legal Profession Uniform Law (NSW), the Council of the Law Society suspended the practising certificate of Gary Alan White to 30 June 2016. On 21 January 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, Solicitor, as Manager of the law practice formerly known as Szekely & Associates for a period of two (2) years.

On 4 February 2016 and pursuant to s.77 of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to immediately suspend the practising certificate of Seog Won Yoon. On 4 February 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Gerard Flynn, Solicitor, as Manager of the law practices formerly known as El Khan Legal and Boep Jeog Pty Ltd for a period of two (2) years.

16 LSJ I MARCH 2016

NEWS

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STEPHEN DIGBY PRINCIPAL, DIGBY LAW

Digby Law is a boutique firm specialising in media, arts and entertainment law. Principal Stephen Digby speaks with KATE ALLMAN about the critical importance of branding following a recent transformation of its marketing image.

Why is it important to establish a unique brand for a law firm in today’s market? In today’s crowded legal market, it can often seem an overwhelming choice for clients considering where they will go for legal advice. The job of the brand is to be distinctive, not only to enable clients to quickly notice, recognise and recall the brand over others, but to reflect the philosophy, values and approach of the business. How have you done this at Digby Law? We have been a niche business specialising in entertainment and communications, media, leisure and the arts for more than 11 years. However, as the industry is expanding, niche is becoming the new normal, so that in itself is no longer enough to be distinctive. My aim, therefore, was to build a bridge to my clients (and potential clients) who are in these industries to explain who we are and what we do. I felt that the most distinctive and powerful way was to do this visually, so I engaged the creative talents of our friend and client, photographic artist Kerry Wilson (see kerrywilson.net/) to interpret something that represented our heritage, our underlining philosophy, and our approach, as well as the areas in which we

operate. Creative design agency Nucleo (see nucleo. com.au/) then took the images and incorporated them into all our associated stationery and business and promotional material, such as business cards, cards, credentials documents, and our website (see digbylaw.com). How do you strike a balance between developing a recognisable individual brand without alienating potential clients? Not everyone will like the images we have created, and/or connect with the message, but my hope is that everyone will take notice of the approach and, with luck, appreciate the effort we have made to engage with our core client base – and to communicate with them in a creative way. What is your best advice for boutique firms trying to develop their marketing image? The benefit of being a boutique is that you know your own clients and their industries better than most. You have a much clearer view of who they are, and what they do and don’t like. As a result, despite limited budgets, boutiques can communicate very effectively because their message is targeted and the message is relevant and appropriate to its recipients.

MARCH 2016 I LSJ 17

Briefs NEWS

mind your ethics

What the committees are advocating this month ... LAW Reform For the full round-up of Law Society advocacy, see pages 70-71.

TIPS AND TRICKS FOR PLAYING BY THE RULES ...

CAUTIONWHENBRIEFINGCOUNSEL BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR, THE LAW SOCIETY OF NSW W ith the increased complexity of many legal matters, the choice of personal liability for payment of the third party’s fees, the solicitor must advise the third party in advance. If a solicitor enters into a contract with a third party, the obligation is upon the solicitor to honour this.

Inquiry into ‘revengeporn’ The Human Rights Committee and Criminal Law Committee prepared a submission to the Senate Legal and Constitutional Affairs Committee regarding policy and legislative responses to the phenomenon colloquially referred to as “revenge porn”. The Human Rights Committee noted the need for a new statutory tort to address serious invasions of privacy in the digital era. The Criminal Law Committee discussed the adequacy of existing criminal offences. Bail practicenote The Criminal Law Committee provided comments to the Supreme Court regarding the content of a draft Bail Practice Note. The Practice Note relates to a change in procedure for filing an application in the Supreme Court under the Bail Act 2013 (NSW). Practitioners must now complete a notice of readiness to proceed before 2pm on the Friday before the call-over. The committee made some minor suggestions to the wording of the Practice Note. Disrespectful or disruptivebehaviour incourt –preliminary consultation The Criminal Law Committee, Indigenous Issues Committee and Litigation Law and Practice Committee commented on a proposal by the NSW Government to introduce a proposed summary offence where a person appearing before a court deliberately engages in disrespectful behaviour. The submission opposed the proposal on the basis that it was not necessary to introduce a summary offence criminalising behaviour that fell short of contempt. Foreign resident capital gains withholdingpayments Members of the Property Law Committee’s Contract for Sale and Purchase of land subcommittee met by teleconference with officers from the Australian Taxation Office and Treasury to discuss possible amendments to the 2014 edition of the contract to include the new foreign resident capital gains withholding measure, due to commence on 1 July 2016.

briefing counsel becomes more important to achieve to obtain an effective outcome on behalf of the client. However, a recurring ethical problem needs to be brought to the attention of practitioners, who always should be mindful of their obligations that arise when briefing counsel, as they are contracting with a third party on behalf of a client. What are a practitioner’s ethical obligations when contracting with third parties and, in particular, when briefing counsel? The contents of Solicitors’ Rule 35 should be noted. Rule 35 – Contracting with third parties 35.1 If a solicitor instructs a third party on behalf of the client, and the solicitor is not intending to accept

Care should be taken to ensure money is held in trust and that the client clearly understands the nature of the transaction. Many practitioners do not clearly explain to the client the obligation that can be incurred, especially when the client may sometimes refuse to pay fees for counsel at a later time. However, unless there is an unambiguous arrangement where the solicitor is not intending to accept personal responsibility, the fees incurred are an obligation for the solicitor to pay and should be paid without delay.

CLOTHESREALLYDO MAKETHEMAN ... The Law Society of NSW is giving one lucky LSJ reader and Law Society member the chance to win a $2,000 voucher to spend at M.J. Bale, one of Sydney’s sharpest clothiers.

For your chance to win, send your top tips for creating executive presence, professional style and overall health and wellbeing in your life as a lawyer. Share your wisdom in 50 words or less, by emailing competitions@ lawsociety.com.au. Entries close 10 March and the winner will be announced on the Law Society’s Facebook page. For terms and conditions, lawsociety.com.au/cs/groups/public/documents/ internetmondaybriefs/1092029.pdf

18 LSJ I MARCH 2016

CAREER MOVES

MEMBERS ON THE

KATHERINEALLSOP Joined as Senior Associate Yeldham Price O’Brien Lusk

ABBEYBURKE Joined as Solicitor Yeldham Price O’Brien Lusk

MICHELLEWHITE Joined as Senior Associate Yeldham Price O’Brien Lusk

ROSSBARWICK Joined as Solicitor McAuley Hawach, Parramatta

MAEVEDOYLE Joined as Consulting Principal, Employment Nexus Law Group, Sydney

ANITAPERHSAD Joined as Special Counsel Prominent Lawyers

EMMAGEORGE Joined as Senior Partner LegalVision

ZIPPYCHAN Promoted to Senior Associate Linden Legal

CATHERINELOGAN Joined as Senior Partner LegalVision

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

JUNE 2014 I LSJ 1 MARCH 2016 I LSJ 19

Briefs OUT AND ABOUT

2016OPENINGOF LAWTERMDINNER More than 300 people attended the 2016 Opening of Law Term dinner at the Art Gallery of NSW on 4 February. Chief Justice Tom Bathurst gave the keynote address, discussing legislative encroachment on fundamental rights and freedoms. See page 22 for an edited extract. PHOTOGRAPHY: DARYL CHARLES

20 LSJ I MARCH 2016

OUT AND ABOUT

MARCH 2016 I LSJ 21

Briefs OPINION

At the 2016 Opening of Law Term dinner, the Chief Justice of the Supreme Court of NSW, THE HON. TOM BATHURST AC , delved into how the legislative encroachment of certain rights and freedoms affects the very nature of the legal profession. The nature of the profession and its identity

This is an edited extract of this address.

PHOTOGRAPHY: DARYl CHARLES

22 LSJ I MARCH 2016

OPINION

“Without those rights we would have to reassess the nature of our profession and who we

Somebody once said, “There are … two things that are essential to any community. One is sewerage. The other is lawyers. If you don’t have sewerage you’re dead, but if you don’t have law, society stops. And you can’t have law without lawyers. e vast body of lawyers are just damn good professionals and they keep the sewers running.” As un attering as an analogy between sewerage and the law is, it is one that I would like to dwell on in detailing the nature of our profession. I do so not to take an ideological stand on how law should be taught, nor in response to some perceived crises in con dence in our profession’s identity. Rather, I wish to examine the fundamental common law rights that are integral to the nature and identity of our profession and examine the state of those rights in our society. With that disclaimer, I pose the question: what is the nature of the current legal profession? e profession that is attracting graduates in droves, yet su ers systemic mental health issues? In speaking of the profession’s identity, it is of course important to acknowledge that we are not a homogenous whole. ose that are part of the profession range from solicitors to barristers and, in a broad sense, judicial o cers. Within each of those components are further layers of individuality, with proliferating structures and focuses of practice. A solicitor today may practise as a sole practitioner, or as part of a partnership, or as an employee in an incorporated law rm. People may work in private practice or government. e variables, although not in nite, are large. It is understandable, therefore, if people express scepticism towards the very idea that the nature of the profession, made up of disparate parts, can be summarised as one. Even more likely to receive scepticism today is the simple idea that the profession is still that – a profession. ere are those who fear

are –what we, as legal

professionals, are doing and

what point we serve in society.”

TOM BATHURST



MARCH 2016 I LSJ 23

Briefs OPINION

“Even when conservative searches are performed, there are at least 397 legislative encroachments on either the rights to legal professional privilege, against self- incrimination, or the presumption of innocence.”

the commercialisation of the legal industry has removed the ethical facet that marked it out as a profession. I know there are many legal fictions, but I strongly believe that the fact we are still a profession, with all that this entails, is not one of them. Of course, even if we are accepted as a profession, depending on who you are speaking to, we can be described as a noble or immoral bunch. The jokes of a hired gun and many more are familiar to us all. I would like to focus on perhaps not the most glorious depiction of the legal profession. That is, the idea of legal professionals as plumbers. I do not claim that the analogy is my invention. It was, of course, popularised in 1967 when Professor Twining published a journal article on legal education titled “The Plumber and Pericles”. Since then there have been many comments made on the similarities and disparities between the two callings. If I could be forgiven to quote one particularly humorous but lengthy comment made by a Lord Justice of Appeal in England and Wales, only a few years ago, I will do so. He specifically focused on the similarities between judges and plumbers and commentated that: “[t]he judge approaches a case with much the same mixture of resignation and righteousness as a plumber responding to a call-out. Each knows that [they] . . . will not have been brought in until the efforts of those on the spot have left the place ankle-deep in water. Although, unlike the plumber, the judge cannot charge a king’s ransom for his attendance … he shares with the plumber the … pleasure of surveying the wreckage and groaning, ‘Oh dear, oh dear, who installed this?’ ‘True, the judge cannot quite match the next trope of the plumber’s monologue: ‘Had a Stetson and spurs, did he? . . . But the judicial trope, while less vivid, is no less trenchant in its [criticisms] . . . of parliamentary and departmental drafting, the incompetence of contract negotiators, the folly or malice of litigants, the inability of lawyers to see the

point, or, on the rare occasion when they see it, to stick to it, and the otherworldliness of academic commentaries … Above all, the experienced judge shares the experienced plumber’s aversion to activism. Both know the value of shutting the water off at the mains and promising to be back as soon as other jobs permit – [this is] known … [in legal circles] as the Mareva … [There is also the alternative] … of plugging the leak with a bit of mastic and waiting for a further call-out … stare decisis, as it’s called in Latin.” The point of the analogy between plumbers and legal professionals is, as Justice Gageler from the High Court has stated, to emphasise that they both provide “an essential but essentially technical service”. That is, in protecting and furthering the client’s interest. Just as the plumber does as the client instructs, provided it is not contrary to the laws of physics, so the legal professional acts, unless it is contrary to their paramount duty to the court. The focus on the task at hand to facilitate the client’s interests is what marks the lawyer as fundamentally a technician. As mundane or unflattering as this may sound, it is ironically this very feature that embodies the more noble attributes of the profession. Honesty, diligence and dispassionate advice are attributes that stem from a lawyer with a straightforward technician’s attitude to a task at hand. The lawyer who seeks to prioritise their perception of what is best or for the public good over the client is not a technician. They are a paternalistic Pericles, which is not what the client, society or the justice system needs. There is, however, no doubt more to our profession’s identity beyond this simplistic depiction of a plumber. It is unquestionably informed by the historical and fundamental innocence and the rights to legal professional privilege and against self-incrimination are fundamental common law principles, which inform our identity as legal professionals as much as anything else. freedoms of our common law system. Concepts such as the presumption of

TOM BATHURST

24 LSJ I MARCH 2016

OPINION

They are the backdrop, the rules of the game, in which we operate. It is only because of those rights that go towards ensuring there is equality before the law that we can have any confidence that a dispassionate attitude to legal advice will achieve justice. Without those rights we would have to re-assess the nature of our profession and who we are – what we as legal professionals are doing and what point we serve in society. This inevitably prompts the question: what is the state of those rights in our society today? Essentially, like many submissions from counsel, all I [want] to say [can be] condensed into five simple propositions. First, the historical context and relatively recent emergence of certain common law rights always needs to be remembered. This is not to detract from their importance but does lend weight to the proposition that legislative encroachments are not necessarily unique to this era. Whether they are necessary will always be a question of degree. However, necessity should be judged by reference to the question of whether a particular abrogation of fundamental rights is in fact conducive to the maintenance of the rule of law. Second, in seeking to obtain the right balance between a functioning state and liberty, formal and informal, statutory and common law-based mechanisms of protection against encroachment are important. Third, the number and strength of both types of scrutiny mechanisms in NSW, whether assessed independently or in comparison to Commonwealth counterparts, is not necessarily ideal. It is particularly questionable whether the theoretical potential of both formal and informal scrutiny mechanisms is translating into an effective protection of fundamental common law rights. Fourth, even when conservative searches are performed, there are at least 397 legislative encroachments on either the rights to legal professional privilege, against self-incrimination or the presumption of innocence. Whether this is more or less than desirable is not a matter for me to comment on. Whether it reflects the robust operation of a culture of justification in NSW is also a matter for individual opinion and comment. Finally, as desirable and important as it is for there to be awareness and transparency of the extent of legislative encroachments, it is particularly difficult to

analyse that question. This is due to a combination of factors, including that the principle of legality may be defeated by necessary – not express – implication, the use of ambiguous headings, and inconsistent drafting techniques. I hope I have shed some light on the extent of state legislative encroachments on three of the fundamental common law rights in NSW. As I said at the outset, the three rights in particular of which I have spoken directly affect the identity of all lawyers. To that extent, how they are faring in society is something we all should be aware of if we wish to continue to identify ourselves as a profession of dispassionate plumbers. I express my thanks to my Research Director, Madeline Hall, for her assistance in the preparation of this address. Note: This is an edited extract of a speech delivered on 4 February. It does not contain footnotes. For the full, comprehensive version of this address, visit supremecourt.justice.nsw.gov.au/Documents/ Speeches/2016 Speeches/Bathurst_20160204_speech.pdf

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