LSJ March 2020

Getting diversity right Why law firms still have work to do when it comes to LGBTQI equality Saving reputations Fixing our outdated defamation laws: where do we go from here? Overtime and awards A modern award for graduates: how will it impact employers? Reporting on slavery Preparing clients for compliance under the Modern Slavery Act

ISSUE 64 MARCH 2020

Lawyers are joining the space race but can they keep up with technology? Star laws

PLUS: UPDATES ON CLIMATE, EVIDENCE, RISK, LITIGATION, GUARDIANSHIP & MORE

You’ve spent your career fighting for winning outcomes.

We have built our business on helping you achieve them.

info@lawinorder.com • 1300 096 216 Where Production Work Flows.

Sydney • Brisbane • Melbourne • Perth • Singapore • Hong Kong • India Printing/Copying | Oversize Plan Printing | Scanning | Appeal and Court Books Accessing and Reproducing Subpoenaed Documents | Legal Process Outsourcing

Contents

30 22

54

Features

22 Hot topic

36 Embracing equality

50 The power of mentoring

Chief Justice Tom Bathurst on conduct rules and moral conscience in the 2020 law term

In a series of candid interviews, LGBTQI lawyers tell LSJ what more the profession can do 40 Amatter of reputation Defamation law is under review, but who needs the most protection? Kirrily Schwarz writes 46 Mindset Angela Heise reveals how to start and end the day with a genuine slice of gratitude

Floyd Alexander-Hunt meets a mentor and mentee reaping the benefits of a Law Society mentoring program

24 Lunchwith a lawfirm

54 Fitness

The partners of Gordon Garling Mo tt celebrate 150 years of practice with Stephanie Gardiner

From performance trackers to high- intensity workouts in half the time, Ben Lucas shares his top 10 fitness trends

30 A legal summoons

56 Travel

As lawyers join the journey to the stars, Amy Dale asks if our laws can adapt to an evolving galaxy

Whether you’re looking for a timeless classic or the hot new spot, Ute Junker has you covered in New York City

ISSUE 64 I MARCH 2020 I LSJ 3

56

68

80

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 12 News 16 Members on themove 21 Expert witless 21 The LSJ quiz 26 Out and about 44 Career matters 48 Doing business 49 Career coach 52 Health 60 Youwish 62 Books and films 64 The case that changedme

66 Advocacy

80 Evidence

The latest key developments in advocacy and law reform

High Court rules on the admissibility of evidence in greyhound animal cruelty case 82 Practice and procedure

68 Climate law

Climate disaster law comes to the fore in light of the Australian bushfire crisis

A guide to when fiduciaries can seek judicial advice and protect themselves from personal liability

71 Employment

84 Litigation

An in-depth analysis of the Fair Work Commission’s modern award changes 74 Business & human rights It’s time to start work on your Modern Slavery Statement 76 Children’s law A new era in building an integrated child safe system 79 Risk The importance of settlement dates for land tax certificates

The future of class actions and the imminent change to class actions practice in Victoria

86 Personal injury

Key changes to the revised Motor Accident Guidelines

89 Case notes

The latest High Court, Federal, family, criminal, and elder law and succession judgments

90 Library additions 106 Avid for scandal

4 LSJ I ISSUE 64 I MARCH 2020

DL ADVICE . S K I L L S & S U I TA B I L I T Y . A V A I L A B I L I T Y . A R E A S O F E X P E R T I S E D E V E R ’ S L I S T

A CLERKS LIST FOR OVER 150 YEARS

LEGAL DISPUTE RESOLUTION SERVICES DELIVERING PRACTICAL SOLUTIONS

“We pride ourselves on the best advice as to counsel suitability and accurate availability based on linked diary technology for highly qualified, experienced and accessible barristers who will advise, strategise and appear in all Jurisdictions, Court and Tribunals.“

Dever’s List Barristers’ Clerk Telephone: (03) 9225 7999 24 hour contact: 0416 087 999 | Email: dever@vicbar.com.au

deverslist.com.au

A word from the editor

is edition’s cover story is a little bit left of centre. Never did I envisage that we would one day be delving into the complexities of the laws governing outer space, but here we are. Like many concepts beyond our atmosphere, the scale and scope of laws pertaining to who governs what beyond Earth is somewhat mind-bending, and a reminder that laws often have trouble keeping pace with science and technology. Amy Dale

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor

delivers a fascinating read on page 30. Many readers will find the opening lines of our feature on LGBTQI issues on page 36 confronting. I certainly did. e four lawyers interviewed for the article delivered a stark message that life for many in the gay community can still be difficult – even in the wake of marriage equality. For many in the LGBTQI community, myself included, even thinking about the postal vote and the debate that came with it is painful. e article tackles the question: are law firms living up to expectations when it comes to genuine acceptance and inclusivity for their gay staff members? e verdicts are mixed, but it is apparent that amidst lingering trauma and fear, there are strong rays of positivity and a call to action for more LGBTQI champions within the profession. In my view, the four brave interviewees are just that – sorely needed champions and role models. I thank them all for their courage and honesty.

Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2020 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Chaffey

Contributors

AMY DALE Cover story p30

ROSEMARY LYSTER Climate law p68 Rosemary Lyster is a professor and Director of the Australian Centre for Climate & Environmental Law at The University of Sydney Law School. She examines how the burgeoning area of climate disaster law can be applied to Australia’s bushfire disasters.

JACK DE FLAMINGH Employment law p71 Jack de Flamingh is a partner at Corrs Chambers Westgarth and regular LSJ contributor. In this issue, he and senior associate Chris Bell examine the hot topic of modern awards, underpayments, and annualised wage arrangements.

KIRRILY SCHWARZ Feature p40 Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue, she explores the proposed changes to defamation law and ask experts if the reforms go far enough to be meaningful.

Amy is a journalist at LSJ. She is a published true crime author and a former policy and media adviser for the NSW Government. This month, she writes on the rise of space law and the Australian lawyers driving our journey to the stars.

27,100 * *AUDITED MARCH 2019 DISTRIBUTION

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

Cover: Getty images

NEXT ISSUE: 1 APRIL 2020

6 LSJ I ISSUE 64 I MARCH 2020

National Process Serving and Skip Tracing through innovation, quality and experience.

02 8833 3334 www.riskandsecurity.com.au Sydney | Brisbane | Melbourne CBD Document Delivery & Collection Available

The Intellectual Property and Trade Mark Investigation experts.

07 3257 1083 www.tmis.com.au Sydney | Brisbane | Melbourne

President’s message

public scrutiny in the past 12 months, the Law Society has in fact raised concerns regarding the strip search provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) with the NSWGovernment on a number of occasions since the legislation was introduced in 2002. We are concerned about the information regarding strip search practices that has emerged through both the LECC investigation and the 2019 UNSW report, “Rethinking Strip Searches by NSW Police”. The Law Society is currently reviewing an interim report published by LECC on 13 February, which is focused on NSWPolice standard operating procedures for strip searches in custody. We also await the release of the final LECC report and its recommendations, and it seems likely the Government will need to seriously consider reforms to LEPRA to ensure these extraordinary powers are only used in appropriate circumstances. A long-overdue review of defamation laws in Australia, led by NSW Attorney General Mark Speakman SC MP, is another issue of law reform in which we have been actively engaged, assisted by our Litigation Law and Practice Committee. In January, we provided extensive comment on draft amendments to the Model Defamation Provisions prepared by the Council of Attorneys-General Defamation Working Party (DWP). The Law Society expressed support for a number of recommendations made by the DWP, which should help modernise current defamation laws, which were drafted in a different communications era. For some time now, the Law Society has also been advocating for the expansion of the highly successful Drug Court to Dubbo in regional NSW, matched with increased funding for additional drug and alcohol rehabilitation and support services. We hope this will be one of the many actions arising from the findings of the Special Commission of Inquiry into the Drug “Ice”, which were delivered to the Premier on 28 January 2020.

O ne of the Law Society’s foundational purposes is to initiate law reform and contribute to the administration of justice in this state. This advocacy work is informed by the Law Society’s 18 specialist policy committees, which bring together solicitors from all areas of practice to examine legislative and law reform proposals, court practice and procedure, and general practice issues. Through their regular submissions (more than 250 in the past 12 months) and public statements, our policy committees have helped establish the Law Society as a highly respected commentator to government on legal matters. I would like to acknowledge and thank those members of our profession who have volunteered to serve on our policy committees this year and in previous years. Whether the issue before us is about family law reform or e-conveyancing, the Hayne Report recommendations or artificial intelligence, court reform or Indigenous recognition, our committees enable us to display leadership in law reform, and advance and protect the rule of law. Take, for example, the legal profession’s and wider community’s concerns about strip searches conducted by NSW Police, which is the subject of an ongoing Law Enforcement Conduct Commission (LECC) investigation. While police strip search powers have come under major

Richard Harvey

8 LSJ I ISSUE 64 I MARCH 2020

My firm thrives at Find the right property . Buy with confidence. Prepare legal documents quickly and accurately, all by voice Regardless of practice size, Dragon Legal Australian software can increase time spent with clients on billable work. Dragon My firm thrives at MANJOT SINGH DHILLON LEGAL M firm t ri a SIMON DELLA MARTA , PARTNER POINTON PARTNERS SYDNEY My firm thrives at CHRISTELLE SANTELLI INNOVO LEGAL RACHEL SLAT SLAT FAMILY LAWYERS SPECIALIST IN RELATIONSHIP BREAKDOWN Whether you are looking for a new home , an investment property or a commercial property , our personalised buyers agency service will ensure you find your ideal property and purchase it at the best possible price. Prepare case files, contracts, briefs—all by voice Eliminate or reduce transcription time and costs 3 times faster than typing, with Dragon you can: Let the journey begin. Take advantage of 10% off * Australian Avis rentals as a Law Society Member. Find. Research. Negotiate. Bid. Buy. Used by The Hon. Michael Kirby AC CMG . See Michael’s video at dragonpro.com.au/legal & ask your member benefits contact for our exclusive member offers. Utilise an extensive, built-in legal vocabulary that c vers terminology specific to the legal community Create, import and share custom words specific to your clients, practice or specialty Community | Workspaces | Resources WWW.CLARENCE.LAW 1300 310 500 Shop 8, The Italian Forum , 21-23 Norton Street, Leichhardt, NSW 2040 P: 02 9568 6330 | M: 0405 134 645 www.buyersdomain.com.au Dataworxs Australia www.dataworxs.com.au 1300 446 932 Community | Workspaces | Resources WWW.CLARENCE.LAW 1300 310 500 Community | Workspaces | Resources WWW.CLARENCE.LAW 1300 310 500 We want you and your money to go further on your next journey with this special offer. Plus, earn 4 Qantas Points † for every dollar spent on time and kilometre charges in Australia. T o b o o k v i s i T w w w . e m b e r c o n n e x i o n s . c o m . a u * Discount offer is valid for Australian car rentals booked via the LSNSW booking tool. This discount applies to the base rate (time and kilometre charge) only. Standard age, credit card and driver requirements apply. Rentals are subject to the terms and conditions of the Avis Rental Agreement at the time of rental. Off r v lid until 18 May 2020. † You must be a memb r f the Qantas Frequent Flyer program to earn points. Membership number must be quoted when booking to earn points. Membership and points are subject to the terms and conditions of the Qantas Frequent Flyer program. A joining fee may apply. Points are earned on time and kilometre charges. For more information about earning points with Avis visit qantas.com/cars. Voice Rec gnition Australia www.voicerecognition.com.au 1300 255 900 Contact our Dragon Partners for help with software, installation, configuration, customisation and training: Voicex Communications www.voicex.com.au 1300 551 778 Community | Workspaces | Resources WWW.CLARENCE.LAW

ISSUE 63 I FEBRUARY 2020 I LSJ 81 ISSUE 59 I SEPTEMBER 2019 I LSJ 25

Mailbag LETTERS TO THE EDITOR

Puttinganageoncrime Whydebatearoundageofcriminal responsibility isnotoriouslycomplex Aglimpse intothedark Anexclusive interviewwith twoNorth Koreandefectorson themostwanted list Onlinecourtrevolution RichardSusskindon thegrowth ofonline justice:arewe ready? Anewclimateforsuper Thedebatearoundclimate-related risks and superannuation fundsheatsup

ISSUE63 FEBRUARY 2020

Lynne Stallard: A wonderful event and speeches! Philip Sutherland: Our Governor is very special. We are blessed with great people as former governors. This great person is a lawyer; one of ours. Anne O’Donoghue: Warmest congratulations to Richard Harvey and wishing you all the very best for your Presidential Year. Many thanks also to Elizabeth Maria Espinosa for all her excellent work in 2019. Dominic Cudmore: The Governor is looking splendid! Sam Mason: It was a terrific evening.

ISSUE63 FEBRUARY2020

Inthewakeof disaster

Criesfor legalhelprisingfromtheashesofNSWcommunities

PLUS: UPDATESONCRIME, LITIGATION,COMPLIANCE,BANKRUPTCY&MORE

LSJ02_CoverFebruary.indd 1

23/1/20 3:22 pm

WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.

E: letters@lawsociety.com.au

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

Jayne Hardy: I am going to Messina V day or not. This article was written by a romantic, right?

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

CONGRATULATIONS! Yenee S has won lunch for four. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

Jeven Paea: ‘Food for thought’ … interesting article

10 LSJ I ISSUE 64 I MARCH 2020

The largest global team in the industry. $200 million in capacity. Thousands of transactions completed.

Thank you for the laughs Following the Royal Commission into Institutional Responses to Child Sexual Abuse, the floodgates opened for survivors to seek justice and redress. Lawyers now have an unprecedented number of historical child sexual abuse claims to run. I’m one such lawyer who is exposed day-in, day-out to heartbreaking and horrifying stories of institutional abuse. It feels all the more poignant when you receive handwritten letters from your clients, many of them being inmates who don’t have access to computers. After work on the train ride home one day, I was feeling particularly heavy and despondent after reading statements from my clients about the abuse they have su ered in boys’ homes. Flicking through the December LSJ , I stopped on your Expert Witless section (p23) and

NEWS

Googleuserspass judgmentonSydneycourts Armchairwarriorshave taken toGoogle reviews too er theiropinionson thestateof facilities inSydney’scourts. Herearesomeof thebiggestclangers.

SupremeCourtofNSW 4.8

GLLittleton

LocalGuide •1,702 reviews •25,396photos 2yearsago

The emblem hanging in thebuilding explains it all. A lionon the leftbut aunicornon the right?Does it meangetting justice ismagical?

DowningCentre 2.4

42 reviews

RoyBuchanan

6 reviews

AndrewW

LocalGuide •721 reviews •4,484photos 3yearsago

2yearsago JusticeFullertonwas in fine form asusual,but chairswere uncomfortable.

If youdoJuryDuty, theyprovide free lunch.Usually theybring tray ofmixed sandwiches. Ihave to say, theymake thebest - seriously - thebestChickenSchnitzelSandwiches....when theybring them outgrab thoseand leteveryoneelsehave thecrappycheeseand tomato sandwiches.

CoronersCourt,Lidcombe 4.2

WillieWongus

636 reviews •180photos 3monthago Morbid,but the facilities are cutting-edge. winneryeahmate

3 reviews

2yearsago Theyhave 300people sitting inone cramped space,don’t expect you’regoing toget a seat.Only 2 toilets, nowifi,2 tables withpower sockets, youbetterbe the first touse it,or you’re nevergoing to.

HornsbyLocalCourt 3

BurwoodLocalCourt 3.3

sudipsharma

636 reviews•180photos 3monthago

LocalGuide •39 reviews •11photos amonthago It’sold, the toilets are abitgross and itgets really stuffy inside. FrauleinMaria

FORGETTHEMOSCOWCIRCUS.THIS ISTHEPLACETO COMETOSEECLOWNS INWIGSANDOTHERPERFORMING IMBECILES.

Cross-examination Test your legal knowledge ...

1. Whowas thefirst female judgeon the HighCourtofAustralia? 2. Finish this legalmaxim: Nemodatquod … 3. Inwhat yearwereAustralia’snational uniformdefamation lawspassed?

5. WhenwasAustralia’s last successful referendum? 6. What is abillof lading? 7. What sectionof theConstitution precludesdualnationals from running forelectedoƒce? 8. According toAmnesty International, howmanycountries still invoke the deathpenalty?

9. Whichof the following rolesdid DrH.V.Evattnotoccupy? Justiceof theHighCourt, Secretary-Generalof theUN, Chief Justiceof theNSW SupremeCourt. 10. What are the threecertainties required for thecreationof anexpress trust?

4. Who is theNSWDirectorof PublicProsecutions?

Answersonpage63

Our expertise helps M&A deals take off.

22 LSJ I ISSUE62 I DECEMBER2019

ISSUE62 I DECEMBER2019 I LSJ 23

p14_23_Briefs_News_3.indd 10

28/11/19 3:15pm

burst into raucous laughter at reading the Google users pass judgment on Sydney Courts piece, much to the dismay of the quiet commuters sitting beside me. Thank you for sourcing and compiling hilarious Google reviews of Sydney courts – I’m still laughing at one juror’s glowing review of the Downing Centre having the best chicken sandwiches. Thank you for cheering up this Law Society member by giving her a much-needed laugh! Yenee S A real treat Congratulations for such an interesting … much improved … NSW Law Society Journal this month (February 2020) … a real treat! P. L. Hill Online only? I was born in the 1960s, admitted to practice in the 1990s, and almost every aspect of work in the profession is captured on some form of computer or device. I used to have a subscription to a newspaper that was delivered to my house seven days a week. Now, all subscriptions (except for the Law Society Journal ) are digital. Can I please, please, please have a membership option of the Law Society that enables me to select a digital-only version of the Law Society Journal (with a requisite reduction in membership fees reflecting the production and distribution costs for producing the hardcopy of the journal). For an organisation that presents itself as moving ahead in the 21st century, the maintenance of a mandatory hardcopy subscription of the magazine appears to be a very 20th-century mindset. Sean Patrick Cahill Editor’s note: We do now have lsj.com.au, with a monthly e-newsletter landing in your inboxes with each new edition. Readers can unsubscribe from the hardcopy LSJ by sending an email to: journal@lawsociety.com.au

Liberty Global Transaction Solutions We've brought the best minds in M&A insurance together with a dedicated team of in-house claims specialists to create bespoke policies and get deals done. To learnmore, go to www.libertygts.com.

© 2020 Liberty Mutual Insurance

ISSUE 64 I MARCH 2020 I LSJ 11

Briefs NEWS

LAWREFORM LawSociety calls for newapproach as prison population climbs The Law Society of NSW has urged the state government to invest more in diversionary pathways “rather than pouring money into prisons” as crime statisticians predict another rise in the number of full-time inmates.

BY AMY DALE

“The ongoing increases in the NSW prison population, as confirmed in these latest figures, coincide with a record in- vestment in our state’s prisons.” Acting Executive Director of BOCSAR Jackie Fitzgerald said the prison population increase between De- cember 2018 and December 2019 could be attributed to a rise in the number of sentenced prisoners, a growth of 4.9 per cent or 417 inmates. Harvey urged the government to in- vest in initiatives that will divert offend- ers away from full-time custody and into community-based prevention and reha- bilitation measures. “Incarceration is also expensive with figures suggesting that the daily cost of keeping a person in custody is more than $180 per day,” Harvey said. “It’s clear that instead of pouring money into the prisons, the NSW Gov- ernment needs to invest in early inter- vention strategies, expand the NSW

Drug Court to Dubbo, better resource community-based health treatment such as drug and alcohol rehabilitation cen- tres, and introduce further reforms to better enable courts to impose alterna- tives to full-time imprisonment. “We also need a coordinated nation- al response from Commonwealth, State and Territory Governments to address the over-representation of Indigenous people in the criminal justice system.” The number of young people in de- tention remains at historic low levels, despite a slight increase from 259 in De- cember 2018 to 275 in December 2019. The figures are considerably lower than the 315 young detainees held in 2013. Fitzgerald said the statistics indicate the steady climb in adult prisoners will continue. “Forecasts suggest that in the com- ing year the male prison population will increase again by more than 200,” she said.

The news comes after the latest figures from the NSW Bureau of Crime Statis- tics and Research (BOCSAR) revealed a 3.6 per cent rise in the NSW prison population – an additional 470 inmates – in 2019. BOCSAR said it is likely the male prison population will once again rise in 2020. “The high prison population is put- ting significant pressure upon an already struggling system resulting in a substan- tial and continually increasing backlog in our courts and delays in justice – all at a time when our legal aid system is under increasing pressure,” Law Society of NSW President Richard Harvey said. “The Law Society of NSW has re- peatedly raised concerns on behalf of the state’s solicitors in relation to the swell- ing numbers in the state’s prisons, and the justice system as a whole.

12 LSJ I ISSUE 64 I MARCH 2020

NEWS

Influencer

NEWTHISMONTH Sydney Law Careers Fair

by

The 2020 Sydney Law Careers Fair will again take place at the International Convention Centre on Friday 3 April. The event is open to all law students and newly admitted practitioners across NSW and the ACT, and is free to attend. For more information visit lawsociety.com.au/legal-communities/ law-students/careers-fair How to own your in-house role Join Justin Moses and Linden Barnes for a networking breakfast on 10 March to discuss some common ethical issues sole in-house lawyers face. More information at lawsociety.com.au/events/events- calendar/home-alone-how-own-your- house-role-and-stay-ethically-sound

Carmel Barbagallo SC West Australian Supreme Court Justice Gail Archer on Carmel Barbagallo SC, who is currently prosecuting the trial of the man accused of the Claremont serial killings:

Save the date: Annual Members Dinner Law Society of NSW President Richard Harvey and Council invite Law Society members to the Annual Members Dinner on Thursday 22 October 2020. Registrations will open soon. Visit lawsociety.com.au/ events/events-calendar/save-date-annual- members-dinner-2020

No amount of personal exhaustion will stop her. Carmel leaves no stone unturned, no diamond unconfiscated.

ISSUE 64 I MARCH 2020 I LSJ 13

Briefs NEWS

sixminuteswith ALICE MANTEL

Alice Mantel is an experienced lawyer and adviser on the challenges that many women encounter during retirement. She talks to AMY DALE about family law, homelessness, and why just planning one big overseas trip won’t cut it for the final third of your life.

They were often very friendly but aimed at chaps who were fairly well off or aimed at women who presumably intended to spend the last third of their life on continual holidays. My research gradually grew into a book that is far more extensive than I had ever contemplated and includes mundane topics like accessing your pension as well as more interesting options such as lifelong learning or starting a new relationship. What issues specifically apply to women? Bulk of carer responsibilities, less superannuation, longer life span? I see retirement as very different for women than men. Generally, women are the main carers for their parents, children, partners and grandchildren. At the same time, they come into retirement with significantly less financial resources but live on average five years longer. If they do not have enough resources, those last years are going to be close to living in poverty. It can be a very grim prospect if a woman’s health begins to suffer and there is not always the certainty that your children will be there to look after you. Women aged 55 and above are the fastest-growing cohort at risk of homelessness. How can we do more to ensure financial security? It is no surprise to me that older women are at risk of homelessness. It can begin if they lose their home in a divorce settlement and cannot recover financially, but also if they are unable to find work and remain unemployed, either

as a result of their own or their children’s health issues. When super funds talk about having a modest retirement, or a comfortable retirement, there is always an unspoken assumption that the retiree owns their own home. That’s ridiculous and increasingly unlikely as recent figures have demonstrated. We need to make a secure home a realistic possibility for everyone. What about social planning for retirement? How can people prepare themselves to leave the workforce and feel at ease that a happy and fulfilling future is still ahead of them? Most women retiring today can expect to have another 20 years of relatively good health, so it simply isn’t enough to plan your one big overseas trip and think that’s all there is to it. For working women, one of the major issues around retirement is the loss of their work identity, the loss of income and the social connectedness that professional life brings. We need to plan at least a year ahead of retirement about how we can use our skills and experience in the non-employment sphere – and let me assure you, that is a very large sphere. There are so many not-for-profit agencies looking for directors on their boards or volunteers for their operations. Not having to follow a work routine means you can finally pursue your real passion – whether it is art, woodwork, or caring for your grandkids and even if it might take a little time to find what that is, it will give real meaning to the legacy you leave.

What experiences as a lawyer shaped your decision to advise on planning for retirement? I spent probably around 10 years practising family and then elder law. In family law particularly, I was surprised and then concerned about how little many of my clients knew about their own personal financial circumstances. Often, they did not know if their name was on the title of the property, or how much was owed on the mortgage or credit cards. Again, when acting for older clients, often they left making their wills or power of attorney until very late, when there was pressure from their children, which, as you can appreciate, is a very difficult situation for any lawyer. It brought home to me that women need to be prepared much sooner for the unexpected. What inspired you to write your book, Every Woman’s Guide to Retirement ? I started writing this book before I retired. I was initially doing research to answer my own questions. Years ago, when placing my mother into a nursing home, I realised how difficult it was to find any sensible information to assist me. More recently, I wanted some guidance when I was thinking about closing my practice. After a while, I decided that most books or articles did not seem very relevant to me.

14 LSJ I ISSUE 64 I MARCH 2020

NEWS

Lawyers can be a charming lot when we want to be. However, we deal with many people under di erent conditions. Pressure, conflict, adversarial circumstances and hostility can be a testing time for even the most skilled practitioner, explains PAUL MONAGHAN , senior ethics lawyer at the Law Society of NSW.

Before we emulate a volcano building up to an explosion, perhaps we should reflect on what our obligations to the court, clients and other members of the profession entail. Rarely have I heard a lawyer accuse another of being too polite or courteous, yet this is a fundamental duty upon every practitioner.

matter in which the solicitor represents the client … and be honest and courteous in all dealings in the course of legal practice ...” (Solicitors rule 4). At the commencement of each year, many practitioners will consider how to promote their legal practice and how they may “make a name for themselves” to become well known amongst clients and their professional colleagues. at is quickly established by doing something unethical or discourteous to the court, client or other legal practitioners. You will never be

forgotten and always remembered, but for all the wrong reasons. Worse still, disciplinary proceedings may also be taken against you that may tarnish your reputation permanently. Honest and courteous behavior does work. Consider the true nature of legal persuasion as per suasio, or via sweetness, in all dealings in the course of legal practice. A good name is the most important asset a legal practitioner may have and should be wisely protected. Success in law is achieved by the most ethical.

What are our obligations when dealing with others?

It should be carefully noted by all practitioners that “A solicitor must act in the best interests of a client in any

Shedding light on legal costs for over 30 years

Bespoke Costs Mediation

All legal costing services

Expert evidence

ISSUE 64 I MARCH 2020 I LSJ 15

Briefs NEWS

Cameron Spanner Promoted to Director Adams & Partners Lawyers

Hardeep Bhullar Promoted to Senior Associate Executive Legal

Jason Cabarrus Promoted to District Registrar, NSW Administrative Appeals Tribunal

Lisa Absalom Promoted to Associate, Wills and Estates Rydge Evans Lawyers

Jenifer Windsor Joined as Senior Associate Norton Rose Fulbright Australia

Atul Singh Promoted to Director Adams & Partners Lawyers

Robert Kalde Joined as Partner (Dispute Resolution & Advisory) Bartier Perry

Grant Wiblin Promoted to Associate Joseph Grassi & Associates

Robbie Elder Joined as Partner (Insurance law) Bartier Perry

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

Newchair takes reins at State Parole Authority

four decades of legal experience. Before he was elevated to the bench, Judge Frearson was Deputy Director of Public Prosecutions and one of the state’s most successful crown prosecutors, conducting many complex trials and appeals,” Speakman said. CorrectionsMinister Anthony Roberts said he felt confident having someone of Judge Frearson’s calibre in the role. “Judge Frearson’s substantial expertise in the criminal law will be a major asset to the SPA when making these difficult but very important decisions,” Roberts said. Speakman thanked outgoing chair

Justice James Wood, who held the position for six years and previously served as Supreme Court Justice for more than two decades. “In a long and distinguished career, JusticeWoodheldnumerous appointments including Chief Judge at Common Law, Royal Commissioner leading an inquiry into corruption within the NSW Police Force, and Chairman of the NSW Law Reform Commission,” he said. “I thank him for his outstanding service to the legal profession and for his leadership at the SPA and wish him well in his new role.”

Experienced judge and criminal prosecutor David Frearson is the new chair of the State Parole Authority. Judge Frearson’s role begins on 24 February, coming after several years on the bench as Judge and Acting Judge of the NSW District Court, and more than 20 years as a criminal prosecutor. In announcing the new role, NSW Attorney General Mark Speakman highlighted Frearson’s wealth of criminal law experience. “Judge Frearson has had an impressive career in the criminal law with more than

16 LSJ I ISSUE 64 I MARCH 2020

NEWS

NSWYoung Lawyers 2020 o cial launch

NSW Young Lawyers has welcomed 2020 with a successful launch ahead of a busy year of events. While taking in the beautiful views from the Sofitel Darling Harbour’s Champagne Bar, the Young Lawyers enjoyed refreshments and canapes while discussing some of the exciting projects they have coming up over the next 12 months. ese include the Sydney Law Careers Fair at the International Convention Centre on 3 April, the annual Golden Gavel competition held at the Fullerton Hotel in Sydney on 15 May, and their two major Young Lawyer Assemblies being held in June and November. is was a great opportunity for NSW Young Lawyers to acknowledge their achievements and plan for another productive and rewarding year.

ISSUE 64 I MARCH 2020 I LSJ 17

Briefs NEWS

‘Intrusive policing tactics’ used on children

Coalition in 2017 that found the program was increasing contact between the police and targeted young people but having no observable impact on crime prevention. One case study highlighted by the Commission was a nine-year-old Aboriginal boy who had no charge history and had been identified by police as a child at risk and a victim of domestic violence. After the boy was placed on an STMP as an active target, he was charged 94 times; the most serious alleged offence was aggravated armed robbery. “The LECC’s findings confirm what we are hearing from young people on STMPs: police are overwhelmingly using it as a tool to harass and surveil young people,” said Camilla Pandolfini, Principal Solicitor at the Public Interest Advocacy Centre and one of the authors of the 2017 report. “In some cases, young children have been targeted with these invasive policing strategies even though they haven’t been charged with any crimes – but in fact are known to police as being the victims of crime or children at risk. “Exposing these children to even more

interactions with police and the criminal justice system has a serious negative impact on the young person and runs counter to the efforts that are being made to divert young people from the criminal justice system. “We continue to have serious concerns about the lawfulness of these proactive policing measures, particularly seemingly arbitrary ‘home visits’. This policing practice has no lawful basis and should be ceased immediately.” The report found the police “did not undertake evidence-based evaluations to assess the success, or otherwise, of the STMP on targeted individuals”. The Commission has made 15 recommendations to NSW Police, which have been accepted. This includes a recommendation that the police create a risk assessment tool for the STMP that has been deemed useful and reliable with young people. Another recommendation is “the NSW Police Force consider how police interactions with young STMP targets can be limited to … officers trained in youth policing strategies”.

A NSW police initiative that targets young people deemed at high risk of offending has led to “unreasonable, unjust and oppressive” interactions, some involving Indigenous children as young as nine years old. The Law Enforcement Conduct Com- mission presented its findings on the Sus- pect Target Management Plan (STMP) to NSW Parliament on 13 February. Among its findings was that the risk as- sessment process used to determine which young person to place on a plan may have introduced an unacceptable risk of bias. The Commission found a high proportion of young people identified as Aboriginal or Torres Strait Islander were placed on an STMP. “Our analysis suggests overt and intrusive policing tactics have been applied by theNSWPolice Force resulting in apparently unreasonable surveillance and monitoring of young people,” the report found. The police watchdog examined 429 young people who were placed on an STMP between 2016 and 2018, following research by the Youth Justice

18 LSJ I ISSUE 64 I MARCH 2020

NEWS

LawCouncil seeks funding injection for ‘alarming’ family court delays

family law system is required,” Wright said. “We need a stand-alone, specialist court which understands the complexities involved in family matters. Any merger will diminish this vast expertise and lead to worse outcomes for parents and chil- dren across Australia. “We have been warning for years that the system is under strain and that back- logs are increasing. More funding should not be made contingent upon the courts’ merger going ahead. Our family law courts are overwhelmed and in urgent need of additional funding. “The stress and pain that families go through because of these delays is unthink- able. Many of these cases are of course complex and lengthy but we should not be seeing such a jump in delays over a period of just 12 months.”

The Productivity Commission found an increase of 44 per cent over the past year in the number of non-appeal family court matters that are more than two years old. Family Court and Federal Court Chief Justice Will Alstergren has introduced new measures to attempt to clear the court’s backlog, including increasing the role of registrars in the dispute resolution process and harmonising the Family Law and Federal Circuit Court rules. “The delays and backlogs are unacceptable,” Wright said. “Fund these courts appropriately and we will see delays and backlogs decrease. We can take away the enormous burden being placed on too many families and the relatively small number of judges on whom this huge workload falls.”

The Law Council of Australia has asked for increased resources to the family law system in the wake of “alarming” delays including with cases that are more than two years old. The Productivity Commission’s annual Report on Government Services high- lighted a 34 per cent increase in the back- log of cases in the Family Court between 2012/13 and 2018/19. In the same time period, the backlog in the Federal Circuit Court rose by 63 per cent. Law Council President Pauline Wright said the delays have now reached an alarming level. “Justice delayed is justice denied, par- ticularly when some of these cases involve some of the most vulnerable in our com- munity and allegations of domestic vio- lence. An urgent injection of funds into the

For registration visit www.tlc.asn.au TAX & EQUITY Friday 27 March 2020 RULE 6.1 MANDATORY COMPONENTS Saturday 28 March 2020 13th Annual Fundraising Dinner 2020 For updates visit www.tlc.asn.au MCLE Seminars &Workshop FAMILY LAW Saturday 7 March 2020 CRIMINAL LAW Saturday 14 March 2020 EMPLOYMENT LAW Friday 20 March 2020 LEGAL RESEARCHWORKSHOP Saturday 21 March 2020

ISSUE 64 I MARCH 2020 I LSJ 19

Briefs NEWS

A portrait of progress WOMEN IN LAW

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

Model Defamation Amendment Provisions 2020 (Consultation Draft) The Law Society’s Litigation Law and Practice Committee contributed to a submission to the Review of the Model Defamation Provisions, which is being led by the Council of Attorneys- General Defamation Working Party (‘DWP’). This follows a March 2019 response by the Law Society to a Discussion Paper released by the DWP. The Law Society supported the proposed introduction of a serious harm threshold. We further took the view that the serious harm threshold should be considered by the court at an early stage of proceedings, to minimise the court to the court and other parties of unmeritorious or spurious that do not satisfy the threshold. Inquiry into Professional Engineers Registration Bill 2019 The Property Law and Environmental Planning and Development Committees contributed to a submission to the Inquiry being conducted by the Legislative Assembly Committee on Environment and Planning into the Bill. We supported the establishment of a scheme for the registration and regulation of professional engineers. We suggested that any registration system, in order to be effective, must be complemented by a mandatory professional insurance regime. Council of Attorneys-General Age of Criminal ResponsibilityWorking Group Review The Law Society’s Children’s Legal Issues, Indigenous Issues, Human Rights, and Criminal Law Committees contributed to a submission to the Law Council in relation to the Age of Criminal Responsibility Working Group Review. The submission notes that the Council of the Law Society considered this issue in 2019 and resolved by majority that NSW should raise the age of criminal responsibility from 10 to 14 years and remove doli incapax. The submission outlines a number of factors the Council took in reaching this decision.

It has beenmore than 100 years since women were able to practise law and stand for parliament in NSW. Tomark themilestone, a painting of Australia’s first female High Court Chief Justice Susan Kiefel AC is now on display at the National Portrait Gallery in Canberra. The portrait of the Chief Justice, by artist Yvonne East and sponsored by law firm Herbert Smith Freehills, was a 2018 Archibald Prize finalist. Chief Justice Kiefel was the first woman to be appointed Queen’s Counsel in Queensland in 1987 and the first woman to be appointed as the Chief Justice of the High Court of Australia in 2017. The portrait of the Chief Justice was commissioned by the First 100 Years project, an initiative in affiliation with the Law Society of NSW and the Women Lawyers Association of NSW to celebrate women working in law and their achievements. Chief Justice Kiefel is the Patron of the First 100 Years project in Australia. “My hope was to capture the commanding and graceful presence of the Chief Justice. Her incredible intellect is represented by the books behind her,” said artist Yvonne East. “There are 100 books; one for each of the 100 years being commemorated. The spines of the books are blank to represent the anonymity of the many women who worked tirelessly to achieve their goals. This portrait represents the strength and honour of women in powerful positions, combined with femininity and order.” Juliana Warner, Managing Partner of sponsoring law firm Herbert Smith Freehills, said: “I am delighted by the addition of the portrait of the Chief Justice to the National Portrait Gallery. By celebrating and marking the milestones of how far we have come in the last 100 years, we recognise the women pioneers in our profession and provide opportunities for young women in law to be inspired by their stories.”

20 LSJ I ISSUE 64 I MARCH 2020

NEWS

Fake it till you… don’t make it?

Something fishy about cat burglar

A Canadian teenager who attempted to order a fake ID online has turned himself in to Ontario police in order to prevent iden- tity theft scams, according to Fox News. While most teenagers would be ashamed of falling for a dodgy scam, this underage Canadian citizen decided to cop the consequences of his conduct in order to protect other vulnerable teenagers from the company’s fraudulent activities. The teenager, whose name remains unknown, paid an undisclosed amount of money and surrendered all personal and identifying information to the online company. Ontario Police have since issued several press releases warning underage persons against seeking fake IDs online for fear of scams or potential criminal charges.

A Kiwi family who fell victim to a series of burglaries involving stocks of fish food tak- en from their Auckland property has finally found the culprit – a cat. According to United Press International, for weeks the Spooner family would wake in the middle of the night in fear of an intruder. They would venture downstairs only to find nothing but a container of fish flakes missing. Thinking they were the repeated target of neighbourhood theft, the Spooner family installed CCTV cameras to catch the suspected burglar. In a surprising revelation, they discovered the perpetrator was a local cat, who would persist through their magnetically bolted cat door and steal the family’s fish food.

Mother of a loser A man from the US state of Georgia was convicted of attempting to scam his 73-year-old mother into buying back electronics he had stolen from her. Forsyth News has reported Thomas Mitchell McCollum was arrested at his mother’s home after a series of intimidating behaviour, including the theft of his mother’s TVs and iPads. McCollum allegedly demanded escalating amounts of money via text to return her items, and at one point even blocked his mother’s car from leaving her property until she agreed to take him to an ATM. McCollum is currently in Forsyth County Jail and faces charges of exploitation and intimidation of an elderly person.

Cross-examination Test your legal knowledge ...

1. In which year was the Wik decision? 2. What does PPSR stand for? 3. What does lex loci delicti mean? 4. Which Australian judge currently sits on the International Court of Justice? 5. Which famous Australian supermodel commenced, but did not finish, a law

9. What system of voting does Australia use when voting for the federal House of Representatives? 10. Which Australian state or territory was the first jurisdiction to pass a version of a Bill of Rights?

degree at the University of Sydney?

6. What is anti-siphoning legislation?

7. Which Chief Justice was sworn- in to preside over Donald Trump’s impeachment trial?

8. Which chapter of the Australian

Answers on page 63

constitution governs the High Court?

ISSUE 64 I MARCH 2020 I LSJ 21

Briefs HOT TOPIC

The law and society’s moral conscience

THE HONOURABLE CHIEF JUSTICE TOM BATHURST AC reflects on the intersection between law and moral values.

M ore so than ever before, our society is one which is defined and regulated by law. The demands of a complex and integrated economy and a diverse and multicultural community necessitate a sophisticated and extensive body of rules, administered by a profes- sional corps of lawyers and judges. These rules control how power may be exercised in our society and serve to prescribe standards of conduct by which we must abide in our everyday lives. But these rules do not govern our behaviour as if we were automatons. Outside the law, our existence is more than just a legal abstraction. We also live our lives by the moral values which we have learned from our family, friends, and society as a whole. Our society is also defined and

regulated by these values just as much as it is by the law, but this often passes unnoticed beneath the surface, in the realm of private conscience. Unlike the law, these standards of conduct drawn from conscience are not written but appear from patterns of behaviour we find in society as a whole. However, these two concepts are not as distinct as they might at first seem. The idea of “conscience” has had a long history in the law. As lawyers, we are most familiar with it as the touchstone for the historical development of equita- ble principles by the Court of Chancery. While this notion of “conscience” was based on values influenced by the religious traditions of the early modern period, themselves ultimately traceable to concepts from Greek and Roman philosophy, we now understand the

same idea in a more secular sense. The “conscience” which underlies and animates equitable principles is now interpreted as a reflection of the moral values of our society as a political whole, rather than any one tradition within that society. When courts apply equitable principles to resolve a dispute, we see them as upholding the standards of conduct prescribed by this fictional “conscience”. For example, if a plaintiff establishes an entitlement to relief in equity, say, for an injunction to restrain a threatened breach of contract, then we express this conclusion by saying that the defen- dant was “bound on conscience” not to commit the breach. A court will then seek to “relieve” the conscience of the defendant by making an injunction to restrain any threatened breach. In this way, the court holds the

22 LSJ I ISSUE 64 I MARCH 2020

Made with FlippingBook - Online catalogs