LSJ March 2021
Deflated expectations The disappointing reality for COVID-generation graduates Ready for theworst One year after Australia’s catastrophic summer, what have lawyers learnt? Google vs government What is at stake in the trailblazing game of digital cat and mouse? Personal Injury Commission A new era for workers compensation and motor accident matters
ISSUE 75 MARCH 2021
A volatile situation
Howwill Australia’s justice systemhandle the Brereton Report?
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24 Hot topic Who will win the media bargaining law showdown between the Australian government and big tech? 26 Lunchwith Lovemore Ndou, a former world champion boxer-turned-criminal lawyer, shares his fascinating story. 32 Cover story Kate Allman speaks to ADF veterans and lawyers stunned by the public release of the Brereton Report
38 Disaster plan After the 2019/20 bushfires, Kirrily Schwarz enquires how lawyers can respond better to emergencies 42 Graduating in a pandemic Law graduates facing one of the tightest jobs markets in history tell Floyd Alexander-Hunt their fears 48 Mindset Love working from home but your boss wants you in the oce? Amy Dale has tips for a hybrid model
50 Extracurricular Corporate lawyer by day, jazz
singer by night: meet Sally London on the eve of her album release
52 Health Are e-cigarettes a healthier
smoking option? Angela Tufvesson has the lowdown
60 Travel The Northern Beaches are back open for business and Kate Allman finds the perfect place to staycation
ISSUE 75 I MARCH 2021 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News
A round-up of the latest developments in advocacy and law reform
Time to review your insurance contracts: the unfair contract terms regime is on its way 82 Environment & Planning How the pandemic might inform our response to climate change 84 Commercial The liquor licensing reforms designed to revitalise our night time economy 86 Defamation
68 Personal injury
Judge Gerrard Phillips introduces the new Personal Injury Commission
23 Expert witless 23 The LSJ quiz 46 Career matters 48 Mindset 49 Career coach 52 Health
All you need to know about the biggest IR reforms being debated in over a decade
74 Human rights
The international developments Australian businesses need to watch in 2021
Back to ‘pleading back’ and the reform of the statutory defence of contextual truth
56 Destination guide 59 Library additions 62 Books and lifestyle 64 The case that changedme 106 Avid for scandal
88 Case notes
Why it pays to get some help with taxes in the administration of deceased estates
Expert reporting and analysis of the latest the High Court, Federal Court, NSW Court of Appeal, NSW Court of Criminal Appeal, Family Court and elder law & succession judgments
Time limits - love ‘em or hate ‘em, you’ve gotta know them
4 LSJ I ISSUE 75 I MARCH 2021
Legal Aid NSW – improving our engagement
We value you. So we’re improving the ways we work with you. Legal Aid NSW is now inviting applications from new practices, those without any current panel members. We are changing the way that we deal with private panel lawyers in order to simplify the process, increase accountability and provide improved support. Talk to us to find out more.
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A word from the editor
I can’t believe it is March already – how the time ies! March, of course, means Mardi Gras, so a special shout-out to all our LGBTQI+ readers and I hope you are enjoying the festivities. I had the pleasure of sitting down recently with two of our LGBTQI+ members to record the latest edition of LSJ ’s Just Chat podcast. Nicole Evans and Jake Fing both have wonderful, challenging stories of proud- ly nding their place in the legal profession and of bringing their whole selves to work. ey also shed valuable light on better understanding issues pertaining to LGBTQI+ clients. It’s an essential listen for any queer readers and their allies. I also want to bring to your attention our new section on page 30, titled A Country Practice. is page will feature in each edition and celebrates and illuminates the lives of coun- try lawyers. It’s sometimes di cult to cater to our regional readers from the middle of the city, so we hope this section goes some way to creating a regular connection to the bush. Please drop us a line if you know someone who’d be a great addition to our pages. Happy reading!
Managing Editor Claire Chaey
Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy
Online Editor Kate Allman
Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Acting Advertising Sales Account Manager Eden Caceda Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2021 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 o§cial 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 Cha ey
PHOEBE WYNN-POPE Business p74
JUDGE GERRARD PHILLIPS Personal Injury p68 Judge Phillips is President of the Personal Injury Commission. Here, his Honour provides a practical overview of the new-look merged Commission ahead of its first ceremonial sitting on 1 March 2021.
KATE ALLMAN Cover story p32
FLOYD ALEXANDER-HUNT Feature p42 Floyd is the Communications Coordinator at LSJ and previously worked in journalism at Channel Nine. In this issue, she delves into how COVID-19 has aected graduate lawyers.
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Dr Wynn-Pope is Head, Business & Human Rights at Corrs Chambers Westgarth. Here, she and colleagues Abigail Gill and Kate Gill-Herdman examine the increasing human rights scrutiny that businesses can expect to face in 2021.
Kate is a multimedia journalist and features
writer, and is LSJ ’s Online Editor. This
Deflatedexpectations Thedisappointing reality for COVID-generationgraduates Readyfortheworst One yearafterAustralia’scatastrophic summer,whathave lawyers learnt? Googlevsgovernment What isat stake in the trailblazing gameofdigitalcatandmouse? PersonalInjuryCommission Anewera forworkerscompensation andmotoraccidentmatters
month, she explores the legal ramifications of the public release of the Brereton Report, and the impact it has on Australian soldiers.
A volatile situation
HowwillAustralia’s justicesystemhandle theBreretonReport?
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 firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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6 LSJ I ISSUE 75 I MARCH 2021
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ISSUE 75 I MARCH 2021 I LSJ 7
P ractitioners working in motor accident and workers compensation matters are adjusting to a new legal landscape with the establishment of NSW’s new Personal Injury Commission (PIC). e new body merges the dispute reso- lution systems of the workers compensation and motor accidents schemes into a single, independent tribunal with two specialist di- visions: one to deal with workers compensa- tion and the other motor accidents, presided over by an independent judicial head. e aim is to simplify and consolidate the dispute resolution systems for injured road users and workers seeking compensation. I was honoured to speak at a ceremonial sitting in the District Court of NSW acknowledging the o cial opening of the new PIC with a number of speakers including the new President of the PIC, e Honourable Judge Gerard Phillips, the NSW Attorney General, e Honourable Mark Speakman SC MP, NSW Minister for Cus- tomer Service, e Honourable Victor Domi- nello MP, and President of the NSW Bar As- sociation, Michael McHugh SC. In the words of Judge Phillips, the sitting also noted “the passing of one of the oldest tribunals in this country, the Workers Compensation Com- mission, into the pages of legal history”. One of the signi cant changes that will impact solicitors is that PIC members will be
prevented from also practising in personal injury law, to ensure the PIC is seen as an independent tribunal. e Law Society has actively participated in the development of the rules of the new Commission and we anticipate it will, as Judge Phillips told a Law Society panel discussion last year, hit the ground running from day one. Two members of the Law Society’s Injury Compensation Com- mittee, Ian Jones and Shane Butcher, are representing the Law Soci- ety on the PIC Rule Committee, and we acknowledge their e orts in helping to ensure the rules governing the PIC’s practices and proce- dures are appropriately targeted and t for purpose. e primary consideration in establishing a joint Commissionmust be that it ensures better outcomes for all involved in the process. We look forward to continuing to engage with Judge Phillips and theNSW Government to ensure the PIC’s establishment meets this objective.
Juliana Warner , President, Law Society of NSW
8 LSJ I ISSUE 75 I MARCH 2021
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Mailbag LETTERS TO THE EDITOR
Partner with Bartier Perry and Purcell. He served as a member of the Executive of the Law Council of Australia, a member of the Council of the Law Society of NSW and in 1979, as Vice– President of the Law Society. When the Lawcover pro- fessional indemnity insurance scheme was formed in 1979, it was in response to the needs of solicitors who were expe- riencing a contraction of the commercial insurance market and increasing restrictions on the scope of cover available. Ian was appointed as Claims Direc- tor and Manager of Lawcover and finished his time as Man- aging Director in 1995. In that time, he guided the company on its mission to provide aordable insurance protection to solici- tors through an independent, profession-owned fund. When faced with a dramatic escalation of claims through the late 1980s and early 1990s, Ian
took steps to reduce the cost of claims by improving claims man- agement and focusing on the early resolution eorts, where it could be identified that loss flowed from a solicitor’s error. Convinced that most claims arose not from any major error of knowledge on the part of solicitors, but from a break- down in communication in the relationship between the solicitor and client, in 1992 Ian commissioned an inves- tigation into the causes of professional negligence claims. Streeton Consulting compiled the claims research, interviews with principals and findings in a report, which recommended the development of a com- prehensive risk management education program. Enthusiastically adopting the insights gleaned from the report, Ian and the Lawcover Board undertook the devel- opment of the Lawcover Risk
Anewgeneration The legal technology tohelp yourpractice thrive in2021 Supremeselection IsAustralia’shighcourt reallyasapoliticalas it seems? MadamePresident WhyJulianaWarnerhasclimate anddiversityonhermind Insolvencyoverhaul The reforms tocure theCOVID woesofAustralianbusinesses
A sackable o ence? I’m sorry to hear that our nomination of Michael caused the closure of the “Dressed to Impress Section” of the Maga- zine. We have now decided to let Michael go. Judith, Solicitor Note from the editor: For all those concerned about Michael, Michael has not been sacked. This is a joke. Michael is fine. In remembering the late Ian Bowden, it should be acknowl- edged that Ian was, in many ways, the foundation stone upon which Lawcover was built. Beginning his career in 1958, Ian practised at the Bar before becoming Senior Litigation Vale Ian Bowden 17.12.1932 – 23.1.2021
Killer genes Accesstogeneticmaterialhasseenawaveofcoldcases solvedacrosstheglobe,butatwhatcosttoprivacy?
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28/1/21 8:56 am
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.
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.
CONGRATULATIONS! Greg Walsh has won lunch for four at the Law Society Dining Room. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
FEELING LOST WITHOUT LSJ? Facebookmay have put a filter on us but we’re here and willing tomove forward, Your Honours. (We are not cats.) Catchour news, views and multimedia content direct from ourwebsite at LSJ.com.au
10 LSJ I ISSUE 75 I MARCH 2021
LETTERS TO THE EDITOR
Setting strata straight For Christopher Barnard’s information (February LSJ ), I have been involved with strata community living for over 50 years. During that time, I have been a member of various executive/strata committees representing lots ranging from 34 to 127 in number. And, for the record, I have not been “extraordinarily lucky”. If only! Edward Loong, Lawyer Thank you I just take this opportunity as a very experienced legal practitioner, of com- plimenting Ms Jane Sanders on her article published in the Law Society Journal (February edition) in respect of the Mental Health and Cognitive Impairment Foren- sic Provisions Act 2020 . The article is of considerable assistance to me and my clients. In this regard, I wish to convey to you ... that it is very important for legal practitioners such as Ms Sanders to be so willing to provide such material in such an important area of legal practice which involves mental health issues. Greg Walsh OAM
Management Education Program, with interactive workshops for principals and employed solicitors to build skills around communication, relationship manage- ment and other points of risk for legal practices. The Risk Management Edu- cation Program has now been running successfully for more than 25 years and continues to play a pivotal role in assisting the profession to manage risk. Ian also inaugurated the risk manage- ment column in the Law Society Journal giving examples of claims and the alleged acts or omissions which gave rise to them. With the heading “Who, me?”, the lessons were delivered with Ian’s trademark wit and wisdom and made an impression on a generation of practitioners. Widely respected throughout the legal profession and professional indemnity insurance industry for his commitment and dedication, Ian will long be remem- bered for his calm, thoughtful leadership and his invaluable contribution to Law- cover’s success. Kerrie Lalich, Chief Executive O cer, Lawcover
“Widely respected throughout the legal profession and professional indemnity insurance industry for his commitment and dedication, Ian will long be remembered for his calm, thoughtful leadership and his invaluable contribution to Lawcover’s success.”
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ISSUE 75 I MARCH 2021 I LSJ 11
Mailbag LETTERS TO THE EDITOR
So, this happened …
Thankfully, Twitter and LinkedIn still work:
THE RIGHT PATH IS NOT ALWAYS CLEAR Our Professional Support Unit can show the way Contact our experienced solicitors for con dential guidance on ethics, costs and regulatory compliance. lawsociety.com.au/psu
12 LSJ I ISSUE 75 I MARCH 2021
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ISSUE 75 I MARCH 2021 I LSJ 13
LawSociety joins calls to criminalise coercive control
BY AMY DALE
The Law Society has joined leading legal and family violence organisations in calling for the criminalisation of coercive control in NSW.
carefully draw a line between criminal behaviour and “a relationship that may be dysfunctional, but not necessarily coercive”. “ ere is also a risk of criminalising people with alcohol, drug issues, men- tal health issues – the vulnerable and disadvantaged who may not t into the norms of relationships held by others,” the submission said. “ e o ence needs to capture the persistent nature of the o ending, intentionally and persistent- ly … speci c intent is a very important safeguard.” e most recent NSW Domestic Vio- not t into the norms of relationships held by others. e o ence needs to capture the persistent nature of the o ending, intentionally and persistently … speci c intent is a very important safeguard.” “ ere is also a risk of criminalising people with alcohol, drug issues, mental health issues – the vulnerable and disadvantaged who may
“We consider that there is a gap in the current law and that the best way to ad- dress coercive controlling behaviour is via a speci c criminal o ence, rather than further expanding domestic violence leg- islation,” the Law Society said in its sub- mission to the NSW joint select commit- tee currently considering the issue. “ e o ence should be very tightly prescribed and tailored. As coercive con- trol can cover a wide variety of conduct and motivations, a legislative response will necessarily need to be nely tuned.” Coercive control is a type of domestic violence that manifests in psychological abuse via a pattern of acts: threats, ma- nipulation, surveillance, isolation from friends and family, restricting access to nances and rigid rules with harsh con- sequences are common examples. It is a crime in some countries, including Scot- land, France, and Ireland. LSJ published a cover story on the impacts of coercive control in its September 2020 issue. e murder of Brisbane woman Han- nah Clarke and her children in Febru- ary 2020 by her ex-husband, following years of control and psychological abuse, catapulted the issue to national attention with calls for urgent law reform. NSW Attorney General Mark Speak- man, when he established the inquiry last October, said “creating a coercive control o ence would be a complex though po- tentially very worthwhile reform that could help prevent these o ences”. More than 100 legal centres, law rms, and individuals have made sub- missions. e Law Society’s submis- sion noted any new law would need to
lence Death Review Team report, inves- tigating murders between 2017 and 2019, found 77 of the 78 perpetrators used co- ercive control on their partner before kill- ing them. Earlier research from the NSW Bureau of Crime Statistics and Research in 2016 found women who experienced emo- tional abuse were 20 times more likely to subsequently su er from physical violence. e Death Review Team prepared a submission to the inquiry, revealing its current research found “of all domestic violence context intimate partner mur- der-suicides that occurred in New South Wales over the past 18 years there was evi- dence of physical violence prior to the fatal assault in less than half of those cases”. Many submissions have made their support for new laws contingent on ex- tensive training for police and the judicia- ry prior to their introduction. It is a call echoed by the Law Society of NSW. “We consider that compulsory train- ing for all police o cers and the availabil- ity of comprehensive social services are vital components to the success of intro- ducing a new o ence,” the Law Society’s submission said. “Criminal o ences ordinarily address a particular act or instances of o ending conduct, whereas a coercive control o ence would involve a course of acts or events that only become criminal when taken to- gether as a whole.” Other Australian states have recently announced steps to criminalise coercive control. On 17 February, the Queensland Government announced a taskforce will consider how their proposed new laws could be appropriately drafted.
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NEWTHISMONTH How to deal with years like 2020
What can lawyers learn from re ghters? A lot, as it turns out. Tune in to the Law Society’s new webcast series, Staying Well in the Law, on 17 March from 12.30pm to hear from Professor Samuel Harvey, Deputy Director and Chief Psychiatrist at the Black Dog Institute, to discover how occupational groups like re ghters cope with challenging times. lawsociety.com.au/events LawCareers Fair is back live in 2021 After last year’s Law Careers Fair was forced online due to COVID-19, the annual in-person event is back and will be held at the International Convention Centre Sydney on Friday 26 March. Law students and recent graduates are invited to meet representatives from Australia’s leading employers and attend a series of complimentary speaking sessions about the many di erent career doors that a law degree can open. lawsociety.com.au/careers-fair Public Defenders Criminal LawConference Hear from esteemed speakers including the Governor of NSW Margaret Beazley AO QC, Judge Andrew Haesler of the District Court, and mental health accredited social worker Robyn Bradey about emerging trends in criminal law. is live stream event is open to all legal practitioners and others with an interest in criminal law, held across two days on 13-14 March. publicdefenders.nsw.gov.au Climate Change and the Law: Thought Leadership Hear from Justice Brian Preston SC, Chief Judge of the Land and Environ- ment Court of NSW, in this rst panel of the Law Society’s ought Leadership series for 2021. is event will be held via webinar on 31 March. lawsociety. com.au/events-demand
Patricia Bergin SC Retired Supreme Court Judge, and Commissioner leading the inquiry into Crown Resorts
Dignity is an attribute of life that becomes more elusive and more valuable with age.
ISSUE 75 I MARCH 2021 I LSJ 15
sixminuteswith HELEN CAMPBELL
Why did you pursue a career in law? I was highly motivated to make the world a better place. I thought about doing social work because that seemed to be a way of doing good, but my father said to me, “You know if you do law you can change things. If you do social work, you’re only mopping up the mistakes.” What is the Women’s Legal Service NSW? e Women’s Legal Service NSW is a statewide specialist legal centre for women. We’re an independent, not-for-pro t organisation. We provide free legal advice and representation for women as well as quite an extensive program of community education. We also have a dedicated team of First Nations women for accessibility to Aboriginal and Torres Strait Islander clients. We focus on areas of law that have a particularly gendered impact on women. We are inadequately funded so one of the best ways people can support us is to help with our fundraising activity. What are the biggest issues women face today? ere’s no doubt COVID-19 has increased the risk of violence and the experience of domestic violence for women. In March 2020, we saw a 30 per cent increase in the number of clients contacting us compared to the same period the previous year. Other organisations we work with also noticed a massive increase in online searching for help services. It indicates that those who cannot talk safely are nonetheless seeking information. ere are women out there who are in danger and have not been able to reach out and nd safety. We also are seeing an increase in technology-facilitated online stalking a Master of Women’s Studies and holds a Diploma in Frontline Management. Campbell tells FLOYD ALEXANDER-HUNT about her career fighting for equality. Helen Campbell OAM is the Executive O cer of Women’s Legal Service NSW. She is a lawyer with over 20 years’ experience in the community and public sectors. In addition to her legal qualifications, she is
and abuse. It has chilling and isolating impacts and is often occurring in association with physical threats and assault. We have been campaigning very hard to get legislative and systemic responses to it.
What do you hope for the future of the legal profession?
If we were super good at what we do, we’d be working ourselves out of a job, wouldn’t we? Ultimately, I would like to see more commitment to making processes more accessible to people without representation. I think we also need to look more broadly at making sure the profession is a safe place for women and other minorities to be able to work. What has been your biggest career highlight? In 2011, I was awarded a medal in the Order of Australia for my work at the Redfern Legal Centre. I spent 10 years managing it and I’m proud of the work I did there. It was about being in that community. It was also a time when that community was under enormous threat. ere’s a lot of roles lawyers can usefully put their skills to in management committees of not-for-pro t and community organisations or pro bono opportunities. ere’s always an opportunity to assist those who are disadvantaged in their access to the law. I think the legal profession on the whole should be proud, as lawyers do better than most professions in terms of giving their time. Do you have any advice for lawyers seeking to make an impact in the community?
16 LSJ I ISSUE 75 I MARCH 2021
CHILD PROTECTION ‘Hold hope and purpose’ themessage of landmark child protection conference
Lawyers working with vulnerable chil- dren and families have been urged not to feel overcome by “hopelessness or fear” during a landmark conference bringing together the state’s children protection practitioners. e Law Society of NSW was the major sponsor and principal supporter for the two-day NSW Child Protection Legal Conference held in February. It was the rst time the NSW Children’s Court, Legal Aid NSW, and the NSW Department of Communities and Jus- tice have jointly organised a care and protection legal conference in the state, coming after a year when concerns for vulnerable children escalated due to the COVID-19 lockdown.
Michael Coutts-Trotter, Secretary of the NSW Department of Communities and Justice, opened the conference by outlining the state of play in the child protection system. He said statistics in NSW showed promise: for the 2019/20 year, 43 per cent fewer children entered out-of-home care in NSW. ere has also been a 33 per cent fall in the num- ber of Aboriginal children entering care in NSW in the past ve years. “Within our department we have to acknowledge what we see as a posi- tive change, it’s not a result of our work alone,” Coutts-Trotter said. “ e hardest thing for people in child protection practice is to hold hope and to feel purpose and meaning, and not to
be overwhelmed by hopelessness or fear.” NSWFamilies and Communities Min- ister Gareth Ward noted that “tragically, Aboriginal children are still overrepresent- ed in care” and said the state government was working to address the recommenda- tions of an independent review into the experience of Aboriginal children in the child protection system. e review rec- ommended the establishment of a new, independent child protection commission that could conduct inquiries into systemic issues within the system, as well monitor the implementation of case management policies for Aboriginal families. “If children can remain safe with their families, safe at home, then that should be the objective,” Coutts-Trotter said.
ISSUE 75 I MARCH 2021 I LSJ 17
ACCESS TO JUSTICE Camden Court closes indefinitely
e doors of historic Camden Court- house swung shut in February for the foreseeable future, after concerns were raised about the safety and privacy of crime victims fronting up to the court- house for hearings. Family lawyers, who frequented the court regularly, told LSJ the courtroom was small, there was very little security, and it lacked audio-visual technology to enable victims of crime to give their testimony in an environment removed from their alleged aggressors. Domestic violence victims were often questioned by lawyers, sitting just me- tres from their attackers. A spokesperson for the Department of Communities and Justice did not pro- vide a speci c response to these concerns from LSJ but con rmed the court had consulted with a variety of users and re-
ceived no objections from stakeholders when reaching the closure decision. “Following consultation with court users including local domestic violence victim advocates, sittings at Camden Lo- cal Court will relocate from February 15. “After this date, matters will com- mence and be nalised at Campbelltown Local Court,” she said. “Campbelltown’s court capacity, se- curity and access to Audio Visual Link (AVL) and remote witness rooms pro- vide a more suitable court environment. e safety features include AVL facil- ities in all courtrooms, AVL legal suites and a designated safe room for victims. Support services are also available to vic- tims and other court users.” Law Society President Juliana Warner said moving Camden’s increasing work- load to the much-larger Campbelltown
court complex was “another example of the growing pressure on courts in the Macarthur region”. “While governments have recognised this by pledging resources to a business case for a new justice precinct in the area, the Law Society has and will continue to lobby the NSW Government for in- creased resources for courts in Sydney’s south west and across the state more gen- erally,” she said. e Law Society has led a commu- nity-backed campaign for a new court precinct to be built in southwest Sydney since 2018. In October, a milestone was reached as local, state and federal governments jointly pledged to create a business case investigating the potential of such a pre- cinct, with a report due by the end of this nancial year.
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LukeMaroney Joined as Senior Solicitor Stevens & Associates Lawyers
Kathryn Kearly Joined as Partner Hunt & Hunt
Karina Penfold Promoted to Senior Associate Coleman Greig Lawyers
Elizabeth Rysiok Promoted to Associate AS Family Lawyers
LeiaWijeratne Joined as Senior Solicitor Carter Newell Sydney
AshleyWong Joined as Solicitor Carter Newell Sydney
Christine Tadros Joined as Senior Associate Carter Newell Sydney
Emma Thomson Promoted to Senior Associate Foye Legal
Peter McManus Promoted to Senior Associate Kenny Spring Solicitors
18 LSJ I ISSUE 75 I MARCH 2021
BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR
Q: A name for yourself – ‘good, bad or ugly’?
A: For many lawyers, success is mea- sured in material ways. Hard work and dedication to achieving material wealth, property and dominance in the legal profession is accompanied and re ected by obtaining a much desired ‘fame’ – often described as ‘getting a name for oneself’. However, will your name be remembered as good, bad, or just plain ugly? Great marketing campaigns by talent- ed lawyers with the desired outcome of growing their legal practice may well
achieve the coveted title of ‘well known in the legal profession’ and of the pres- tige, in uence and recognition your name may bring. However, promoting or advertising for a solicitor or legal rm has some strict requirements that must be com- plied with. ese include “not to be false, misleading or deceptive ... or be likely to mislead or be deceptive” in ad- vertising legal services. Also, the nature of the advertising campaign must not be “o ensive or prohibited by law”.
is also applies to advertising exper- tise and the claimed standards of a so- licitor or law rm. Care must be taken not to “advertise ... in a manner that uses the words ‘accredited specialist’ ... unless the solicitor is a specialist ac- credited by the Law Society.” It is essential to comply with the rules on advertising. A positive step is to sat- isfy the formal assessments to become an accredited specialist in your chosen eld. A ‘good name’ is still the best ref- erence for developing your practice.
A podcast from the teambehind the award-winning LSJ magazine.
NEW EPISODE NOW AVAILABLE Nichole Evans and Jake Fing
In this special Mardi Gras episode of Just Chat, Claire Cha ey talks with Nicole Evans and Jake Fing about their experiences in the legal profession as LGBTQI lawyers, how those in the profession can be more e ective allies, and how lawyers can better represent LGBTQI clients.
Listen at lsj.com.au/podcasts or in your preferred podcast app
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OPENINGOF LAWTERM Chief Justice:
CRIME Crime and prison numbers fall during the pandemic New data shows the COVID-19 pandemic forced a drop in prison populations across NSW in 2020 for the rst time in many years. According to the Bureau of Crime Statistics and Research (BOCSAR)’s Quarterly Update, prison populations in NSW declined by 6 per cent in the 12 months leading up to September 2021. BOCSAR’s media release suggested the reduced prison numbers could be a result of courts being more inclined to release people on remand to wait for their court case – rather than move them into custody and risk seeding COVID-19 in the con nes of a NSW prison. ere was also a drop in remand receptions and in prison sentences as court appearances were deferred. is is a larger relative drop than the num- bers show, when considering the growth of the overall Australian population. Additionally, the number of youth o enders in prison has declined steadily over the past ve years and is currently at historic lows, with just 190 people young people in custody in September 2020. Lower crime rates in lockdown e lower prison numbers could also be a ow-on e ect from lower crime rates recorded during 2020. BOCSAR’s research shows most major of- fences such as property and violent crimes were lower in 2020 compared with historic norms. e biggest drop in crime rates corresponded with extreme “lockdown” measures introduced across the state in March and April. e report suggests people were not stealing, breaking and entering as much partly because mobility re- duced, and more people were at home to protect their property for longer periods. e only exception to the downward crimes trend was sexual assault, which rose 10 per cent year-on-year to September 2020. In a disturb- ing footnote, BOCSAR said this increase was primarily due to a rise in contemporary child sexual assault reports (not historic reports or adult victimisation).
Declining public trust threatens our judiciary
e Chief Justice of the Supreme Court of NSW has revealed his court’s sta inboxes were inundated during the recent US Presidential election with misdirected criticisms of electoral fraud and former President Trump. Speaking to 240 members of the NSW legal profession at the Opening of Law Term Dinner in Sydney on 5 February, Chief Justice Tom Bathurst said the emails demonstrated a need to improve the public’s understanding of Australian courts and judicial powers. “One email demands the court ‘does our job’ and address electoral fraud, while another describes that they are ‘ba ed [that] the Supreme Court has not stepped in to list Trump and Pence out of o ce’. Anoth- er states the court is the ‘last hope’ for the United States,” Chief Justice Bathurst said. “ ese emails illustrate the limited understanding that many members of the public have about the varying roles and powers of judges from court to court, and country to country.” At worst, the Chief Justice said, this lack of understanding of courts and judges among the Australian public could lead to distrust of the judiciary. “Public trust in institutions is declining not only in Australia but in many other advanced industrialised countries,” he said. “If there was ever a period where we expected the public to blindly trust institutions, it is long gone. “It is essential that the judiciary continually strives to build and rebuild trust by the public, and especially within communities that have tradition- ally had poor relations with the justice system.” President of the Law Society of NSW Juliana Warner also spoke at the dinner, highlighting the importance of a trusted, independent legal profes- sion – especially in the wake of recent international events. “Our profession is a critical part of our democracy. Recent events in the United States underscore just how important a functioning legal system and an independent judiciary are for the health of democracy,” President Warner said. President Warner praised lawyers in NSW for their lightning-quick adjustment to online and remote work during 2020, which enabled the nation’s legal system to carry on operating through the COVID-19 pan- demic. “We went to work from kitchen tables and living room corners; on Teams and Zoom and via social media apps; in suit jackets and stretchy pants; with dogs barking in the background and cats on the keyboard and home-schooling kids on the oor,” she said. “It was a powerful illustration of our commitment – regardless of the circumstances – to the principles that underwrite our peace and prosperity, including the rule of law and the checks and balances inherent in a civil society.”
See photos from the Opening of Law Term Dinner by turning to Out and About on page 28.
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WOMEN LAWYERS WLANSW launches 2021 program with surprise guest
e Women Lawyer’s Association of NSW (WLANSW) launched its 2021 program and achievement awards at the University & Schools Club of Sydney on 18 February. About 50 members and esteemed judges substituted handshakes for elbow bumps at the socially-distanced event. Renée Bianchi, President of the WLAN- SW and former President of NSW Young Lawyers, thanked the outgoing executive for navigating a particularly challeng- ing year and outlined key strategies and events for 2021. “Our vision has always been and con- tinues to be improving the status and working conditions of women lawyers,” Bianchi said. “It is also to provide leadership on those issues e ecting women in the le-
gal profession by driving and advocat- ing for change.” Emeritus Professor Rosalind Croucher AM, President of the Australian Human Rights Commission, stepped in to deliver an impromptu speech when High Court Justice Virginia Bell was unable to key- note the engagement as planned. “To stand in for Virginia Bell is not something one takes on lightly,” Croucher joked. She then paid tribute to Barangaroo, the wife of Bennelong, who she said was an extraordinary advocate in her day. “WLANSW is almost in its 70s now. In the leadership roles, the baton changes from one fabulous woman to the next,” Croucher said. “Each year, we invest our intellects, our energies and our own lived experienc-
es into thinking about helping each oth- er. As women, we need to stick together, support each other and enlist wonderful allies in support of the things that we hold dear.” Croucher recounted her excitement at winning the life-time achievement award in 2019 and then sheer embar- rassment for losing the trophy during her cab ride home. “ at trophy is prob- ably being used as a doorstep some- where,” she said. “So, whoever wins this year, please make sure you get it home.”
Nominations for the WLANSW 2021 Achievement Awards are now open and will close on 31 May. The presentation evening will be held on 3 September and will include an address by guest speaker Governor Margaret Beazley AC QC.
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JUDICIARY Government considers independent judicial commission
For the full round-up of Law Society advocacy, see page 66.
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 The Employment Law Committee contributed to a submission to the Law Council in relation to the Senate Education and Employment Legislation Committee inquiry into the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (‘the Bill’). e Law Society submission stated that the de nition of casual employee proposed in the Bill is inconsistent with common law principles regarding the dynamic nature of employment contracts, as articulated by Bromberg J in WorkPac Pty Ltd v Rossato . e submission further expressed concern that a proposal in the Bill to exclude a period of casual employment from the calculation of notice or redundancy pay may e ectively reduce existing rights of employees. Exposure draft of the Crimes Legislation (Oences Against Pregnant Women) Bill 2020 The Criminal Law Committee contributed to a submission to the Department of Communities and Justice on the exposure draft of the Crimes Legisla- tion (O ences Against Pregnant Women) Bill 2020 (‘the Bill’). e Bill amends the Crimes Act 1900 to provide for a circumstance of aggravation for relevant o ences committed against a pregnant woman that cause the loss of an unborn child (proposed new s 9). e amendment will increase the maximum penalty for the relevant o ence by an additional three years imprisonment. e Law Society submitted that the proposed new s 9 of the Crimes Act 1900, as presently drafted, is too broad and will lead to arbitrary and unjust outcomes. Commonwealth Integrity Commission Bill 2020 – exposure draft The Public Law Committee contributed to a submis- sion to the Law Council seeking input in respect of the exposure draft Commonwealth Integrity Commission Bill 2020. e submission focused on several speci c struc- tural issues with the draft Bill and noted that our views are generally informed by our support for the current model and approach of the NSW Independent Commission Against Corruption (‘ICAC’). In the Law Society’s view, there is no justi cation for distinguishing between sta members of law enforcement agencies, on the one hand, and parliamentarians and sta members of public sector agencies or o ces of Parliamentarians, on the other.
e Federal Government is seeking independent legal advice on establishing a Federal Judicial Commission to oversee allegations of bullying, sexual harassment, corruption, and other misconduct by judges in federal courts. Draft laws to establish an integrity commission with pow- er to investigate corruption by elected o cials, law enforce- ment and bureaucrat – but not judicial o cers – are current- ly the subject of public consultation. However, according to reports in e Australian , Federal Attorney-General Chris- tian Porter is considering the potential to broaden the scope of this agency to also investigate and oversee judges. e Law Council of Australia welcomed the reports. “Since 2006, the Law Council has supported the estab- lishment of an independent Federal Judicial Commission to promote transparency and accountability for judges,” Presi- dent of the Law Council Jacoba Brasch QC said. “Recent reports indicating that the government is now considering a standalone entity is a positive move … It is essential to the protection of the rule of law that there be a strong and independent judiciary, separate to, rather than subject to, review by the executive arm of government.” Pressure has grown on the government to create a feder- al judicial oversight body after allegations of sexual harass- ment by former High Court Judge Dyson Heydon surfaced in 2020, and bullying and corruption allegations have since been levelled at other judges. Federal Attorney General Christian Porter said any over- sight body would need to be carefully balanced to not threat- en judges’ independence. “I think the NSW judicial commission is a relatively sound model and a body that’s operated in practice in a way that appears e cient and sensible,” he told e Australian . “I’ve received a number of pieces of advice responding to slightly di erent concepts and models and questions … I think something like that is constitutionally sustainable.”
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Cross-examination Test your legal knowledge ...
Cat-egorical denial Texas lawyer Rod Ponton was unable to turn o a cat lter on his Zoom call during a virtual court hearing in Feb- ruary, according to e Guardian and a gazillion other publications. e video mishap went viral, with Ponton displayed as a kitten, imploring the judge that “I’m here live … I am not a cat.” “I can see that,” comes the dry re- sponse of Judge Roy Ferguson, of Texas’ 394th judicial district. Judge Ferguson embraced the mishap as an educational opportunity, tweeting a link to the video with the following caption: “If a child used your computer, before you join a virtual hearing check the ‘Zoom video options’ to be sure lters are o .
“ ese fun moments are a by-prod- uct of the legal profession’s dedication to ensuring the justice system continues to function in these tough times. Everyone involved handled it with dignity, and the ltered lawyer showed incredible grace. True professionalism all around!”
Which Australian High Court Justice is due to retire in March 2021? Which former Olympic swimmer was recently arrested for allegedly supplying large quantities of the drug ice? How many Republican Senators voted to impeach Trump in February 2021?
Sisters by blood, litigants by choice Mariah Carey is being sued by her elder sister Alison for $1.25 million over the contents of Mariah’s memoir, e Meaning of Mariah Carey . As reported by Variety , the memoir details the contentious and estranged relationship Mariah has with her sister. Alison led the suit on 1 February 2021 in the New York County Supreme Court. She is representing herself in the matter and claims Maria in icted “immense and emotional distress” on her. e memoir debuted at number one on the New York Times bestsellers list and Mariah is in talks to have it turned into a feature lm, much to Alison’s displeasure. Me, myself and ‘I do!’
Who is the Federal Defence Minister?
What does OAIC stand for?
6. Who was the first woman to serve on the US Supreme Court? In which type of beverage was the snail found in Donoghue v Stevenson? Who stars as Judge Michael Desiato in the 2020 limited series Your Honour? Which of the following former US presidents did not have a law degree while in oce: John F. Kennedy, Richard Nixon or Barack Obama? 10. What is the predominant citation style used in Australia for legal materials? Answers on page 63 7. 8. 9.
Meg Taylor Morrison, a 35-year-old woman from Atlanta, broke up with her ancée in June 2020 but decided to go ahead with the wedding and marry herself instead, reports the Daily Mail . Like any bride, Morrison spent months planning her special day including picking out a custom-made wedding cake, an expen- sive dress and, of course, a large diamond ring. She wasn’t going to let a little break-up spoil her big moment. Morrison walked herself down the aisle to an edition of “Here Comes the Bride” performed on the Kazoo. In the ceremony, she accepted her own ring, read out vows to herself, and kissed herself in the mirror. She admitted worrying that her friends and family would view her as a narcissist but made peace with her decision as she called it an act of self-love.
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