LSJ - May 2015

MAY 2015





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A post-election Cabinet and Ministry reshu e has given the State its rst female Attorney-General. In her maiden speech as Attorney-General, Gabrielle Upton indicated a close interest in advocating the equalisation of opportunities for women and addressing mental health issues in the legal profession. I welcome Ms Upton to her new role as the First Law O cer of New South Wales. Members of the public overwhelmingly regard solicitors as honest brokers, hard workers and detail masters within the legal system, according to independent research commissioned by the Society and recently reported in e Australian – Legal A airs . Undertaken as a resource to inform the Society’s public advocacy and government liaison work, the study revealed a high level of favorability towards one’s local and usual solicitor. is underlines the degree to which the community supports the profession, which is seen as playing a crucial role in preserving our civil society, contrary to many commonly held misperceptions. Pricing pressures, globalisation, new technology and shifting demographics have altered the legal services market almost beyond recognition in recent years. e upshot is that all legal practitioners, from recent graduates through to senior partners, are changing how they approach the challenges and opportunities associated with forging a successful legal career. With a growing perception that law graduates’ employment prospects are poor, and heightened anxiety around the numbers emerging from NSW universities, in June last year the Law Society established a working group to investigate the employment prospects of law graduates and their related dynamics. e Law Society’s Future Prospects of Law Graduates Report and Recommendations has revealed that while there are some gaps in the available data, NSW law graduates are not exceeding new entrants to the profession. However, we also recognise that further work is needed, such as gathering more detailed statistics and data on graduate numbers and further evidence on employment trends. I commend the report, which makes for interesting reading and is now available for download by members on the Law Society website. On a nal note, just a reminder that practising certi cates are due for renewal by 15 May. Online renewal is once again available for those who are computer literate; I am told that this method of renewal continues to be extremely popular:

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ISSN 2203-8906

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

In December last year, I had the great privilege of travelling to Tanzania to meet my sponsor student, Martha, at e School of St Jude in Arusha (run by fellow former Guyra girl Gemma Sisia) and visit the Kili Kids orphanage at Rainbow Ridge, a property just outside of Moshi in the country’s north east. As you can read in this month’s cover story, Sustaining Africa , on page 28, Rainbow Ridge is home to 26 beautiful children, as well as a unique and exciting community development initiative around sustainability, thanks to Australian lawyers John and Steve O’Reilly and their charity, Communities Assist. Visiting Tanzania a ected me profoundly. I was deeply touched by the warmth, hospitality and gratitude for the small things shown by the Tanzanian people. In the face of extreme poverty was a strong sense of resilience, hope and joy. It was also incredibly inspiring to see what a bunch of intelligent, driven and caring people can achieve when they really believe in the outcome – creating a better future for Tanzania’s children and the broader community.

Michael Nguyen Photographer Jason McCormack Editorial enquiries Juliana Grego Classified Ads Advertising enquiries or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Cha ey


Fiona Craig is a lawyer who has also worked in recruitment. She runs a business to help lawyers improve their strengths and skills and writes in each issue of the LSJ . It shouldn’t be legal p44

Dennis Cowdroy OAMQC is a barrister at 12 Wentworth Selbourne Chambers and a former judge of the Federal Court of Australia. He mounts the case for the use of modern mediation. Legal updates p74

Jane Southward has been a journalist at Fairfax and ABC Life etc and is the LSJ ’’s Associate Editor. In this issue she interviews Gilbert + Tobin’s Chris Flynn, the lawyer for journalist Peter Greste. A day in the life p46

Paul Phillips, PhD is a registered occupational therapist and psychologist with post-graduate degrees in behavioural science. He runs mindfulness courses at the Law Society. This is his first piece for the LSJ . Psyche p56

Cover photograph: Marytza Leiva

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 Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.


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38 AMANOF FAITH Julie McCrossin interviews Rhodes scholar Sean Lau about his life in law and theology 42 FOLLOWINGTHE LEADER Rachel Setti on how to create powerful and effective leaders in your firm 52 THE ANYTIMEWORKOUT Joanna McMillan creates the ultimate workout with exercises you can do anywhere 54 HEALTHMATTERS How to build your brand with better posture

56 ANEWTAKEONWELLNESS Try our 12-second mindfulness exercise and reduce your stress now 57 DEFY YOUR AGE How exercise keeps you looking and feeling young 58 CITYGUIDE Ute Junker’s guide to 24 hours in Tokyo 62 THE ARTFUL LODGER Jane Southward sleeps beneath some of Australia’s best artworks in Melbourne

Redfern Legal Centre’s CEO, Jo Shulman, discusses the impact of the funding cuts 28 COVER STORY Claire Chaffey tells the inspiring tale of two lawyer brothers changing the lives of children in Tanzania 34 TOP 10GLOBAL TRENDS Tahlia Gordon reveals the top 10 trends in legal practice across the globe in 2015 – and why you need to know them

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43 CAREER 101 44 FIONACRAIG 46 ADAY INTHE LIFE Jane Southward meets Peter Greste’s lawyer, Chris Flynn 48 TECHNOLOGY How technology can


News and events from the legal world

12 PROFESSIONAL NOTICES 18 FROMTHE ARCHIVES 19 CAREERMOVES Who moved where this month Legal news from around the world 26 PEARLSOFWISDOM Chief Justice French 41 LIBRARY ADDITIONS 20 OUT ANDABOUT 22 GLOBAL FOCUS

help mid-tier firms compete with the big boys

50 MENTORING Women lawyers 64 LIFESTYLE

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

New books at the Law Society Library

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Can you put that in writing?

disease is spreading!) whether a 14-day period of settlement after registration of a plan could be extended to 28 days and we went through the same pantomime. Once again I was patronised by being told that emails were the “only proper ways of doing things”. There was no meaningful response when I wondered out loud whether solicitors had been incapable of doing things properly for several hundred years before emails were popularised. In both these conveyancing matters, which have very small margins, the attitude demonstrated at the other end of the telephone/email was, in my view, unprofessional. It delayed the outcome for both parties. It also added to the overheads of both solicitors in circumstances where clients are placed at risk of having to pay more because of unnecessary “make work”. Why is all this so? John Emmet McDermott, McDermott & Associates A story hard to swallow I was disappointed to see the article ‘A Healthy Business’ in the February 2015 edition of the Journal . As interesting as it is to see stories of law graduates using their skills to succeed in the business world, I strongly question the promotion of the Paleo Diet in a publication that otherwise prides itself on evidence-based reporting and commentary. The Paleo Diet

is, put simply, nothing more than a fad with nothing that you can’t already receive from healthy eating as per advice from scientific organisations such as the CSIRO. According to the Dieticians Association of Australia, the Paleo Diet involves excessive consumption of protein and inadequate consumption of carbohydrates, which can lead to long-term health risks. Additionally, this diet is allegedly based on diets of our early human ancestors which, according to a range of sources, is simply untrue. To heavily promote a business founded on unproven scientific diet “expertise”, including publishing a recipe featuring the owner’s protein powder, is something I would not wish to be repeated in subsequent editions of the LSJ . Chris Angus Unmentionables I am always eager to open the Law Society Journal each month to read about other lawyer’s journeys, new legal principles in my area of practice, and articles from senior members in the profession. This month, I was able to learn about ‘The Lowdown on Menopause’. It is no wonder women in this profession struggle to be taken seriously. I take no issue with the new wellbeing section, but perhaps it could be slightly more profession appropriate, such as the article by Professor Janet

As somebody who graduated in 1969, I have been through the cycle of wondering what computers were all about, to having one on my desk but virtually ignoring it, to being as computer literate as most members of the profession and being largely reliant on computers in my practice. A substantial proportion of the profession seems to have gone computer mad. This segment appears to be unable to use the telephone or even, on occasions, converse with people in their own o ce and to whom they feel compelled to send emails, although sitting metres apart. Recently, I telephoned another solicitor to advise, in a circumstance of some urgency, and hoping to advance a matter, that the description of my client’s business in the commercial lease should be altered from “dry cleaning” to “dry cleaning and ironing”. I was asked to send an email. I politely asked the person at the other end whether they owned a pencil and might not perhaps be able to write down the phrase “and ironing”. I was hu ly told that an email was required, that a copy of my email would be emailed to the lessor, and only when the email from the lessor came back would I receive an email confirming this “substantial change” or otherwise. Last week, I asked a Queensland solicitor (the








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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: Please note: we may not be able to publish all letters received. CONGRATULATIONS! Geo Archer has won lunch for four. Please email for instructions on how to claim your prize.

Chan ‘Work-Life Balance’. Samantha Lewis, associate solicitor, Manning Lawyers

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Good service I am a solicitor and the grandson of Major General Sir George Wootten. I still use his law books! I refer to your splendid article on Gallipoli ( LSJ April ). George Wootten was involved in both world wars but was not admitted as a solicitor until 1931 (or perhaps 1932). As such, he may not qualify as being a solicitor involved in WWI. According to my father who served with him in New Guinea and who became his son-in-law, George Wootten had a very distinguished military career. Chris Clancy An alternative practice? As someone practising in an alternative Chambers Practice, I would like to share with you what I believe are the many benefits for sole practitioners. In my view, a Chambers Practice helps to overcome the loneliness, keep overheads to a minimum, have the ability to discuss issues with and bounce questions o other solicitors, access informal sharing of precedents with other solicitors, have the opportunity for referral of matters to and from other solicitors and to arrange for matters to be looked after while absent from the o ce, answering of telephone calls and taking of messages by professional receptionists, access to conference rooms with multimedia facilities, sharing of DX and LexisNexis

Keep crisis on the radar A big thank you to the Law Society Journal for its articles on our funding crisis. The President’s messages have also included comments about the need for access and fairness in our legal system. I am sure these articles, and the support of the legal profession in general, contributed to the Federal Government’s decision to “restore” some of the community legal centre’s funding, which we and 60 other community legal centres were due to lose on 30 June. Macquarie Legal Centre, was due to lose $120,000 this year and $120,000 next year. Now we have a commitment to the restoration of this funding. The restored funding was only a small part of our total funding but it all counts. Let’s keep talking about unmet legal need and how we can improve (not cut) legal services to the most vulnerable in our community. Maria Girdler, Manager, Macquarie Legal Centre Bail Act riddle solved? The high level of uncertainty in NSW as to what exactly the law of bail is and the even greater uncertainty as to how to apply it has, for some time now, been a major concern for me. Having just digested and carefully considered the Court of Criminal Appeal decision of DPP (NSW) v Tikomaimaleya [2015] NSWCA, I was respectfully pondering

facilities among those who wish to participate; and access to photocopy, fax/scanners and printing machines, courier and mail systems. Generally speaking, sole practitioners who practise in a Chambers Practice receive all the benefits of being in a law firm with none of the disadvantages. In particular, the sole practitioner can focus on his or her own practice without having to worry about the supervision of others or the ongoing management of the firm. Also, I find that there is no o ce politics because there is no competition between solicitors; camaraderie develops and many strong friendships are formed. Practising in a Chambers Practice also helps to overcome the main problem su ered by the legal profession of today, namely the high level of depression caused mainly through the stress and other work- related issues associated with working for a legal firm. Joining a Chambers Practice is a great way for solicitors to commence practising on their own, particularly for women who want to re- enter the work force after having a family. With all the problems associated with Practice should be considered as a better alternative for sole practitioners. David Beattie, Clarence Professional Group running a legal practice, practising in a Chambers

whether the court, in assessing the “two stage“ test (introduced in the most recent 2015 amendments) has in fact correctly identified whether conflation of the “show cause” test and the “unacceptable risk“ test is really warranted at all. After many sleepless nights and countless hours of high level mathematical analysis of the decision and the 2015 bail amendments, I am pleased to advise that I have discovered a remarkable paradigm enabling the apparent duplicity of the conflation proposed by their honours in show cause and unacceptable risk tests to be solved utilising the mathematical principles of quantum mechanics. I can now reveal the fruits of my labours, which I have respectfully named the ‘ Daily Telegraph -Hadley-Hatzistergos Bail Uncertainty Principle’: Probability of Release = R(P(FTA) x P(CFO))/k x 100/1 R =The Ray Hadley Bail Constant, which is able to be heard daily on Sydney radio station 2GB, currently = 0. P(FTA) = Probability that the client will fail to appear at court, published daily by The Daily Telegraph , currently = 0. P(CFO) = Probability of client committing further o ences, published daily in The Daily Telegraph , currently = 100 per cent. k = The Show Cause / Unacceptable Risk Test Index, announced daily by the Attorney-General, currently = 0. Geo Archer, solicitor and accredited specialist (Crim)

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Professor The Honourable Dame Marie Bashir AD CVO delivers the keynote address at Parliament House; Guests enjoy the night out.

Supporting diversity in the workplace is not only the right thing to do, but also makes good business sense, according to Baker & McKenzie’s Australian managing partner, Chris Freeland. Speaking at the launch of Out for Australia – for which Baker & McKenzie is the founding principal sponsor – at Sydney’s Parliament House last month, Freeland said the firm was proud to support the LGBTI initiative. Out for Australia is an expansion of Out for Sydney, a networking and mentoring organisation aimed at young professionals that was launched in 2013. “As lawyers, we’re in a privileged position and have a responsibility to do our bit to ensure that our society is free from discrimination and bullying, and that people are not held back from being as successful as they can and want to be because of factors which should be entirely irrelevant to that success,” said Freeland. “We want to attract and retain our best and brightest, and many of these people are those who are a part of the LGBTI community. Nurturing a culture that celebrates diversity, where everyone is valued for their individual qualities and contributions, will deliver much better outcomes for our people and for our clients.” Out for Australia’s CEO, Arts/Law student Matt Yeldham, said the organisation’s mentoring program and events had broken down barriers, uncertainties and anxieties for many in the LGBTI community. “The unfortunate reality is that there are still too many people in our community who may not have a role model, who may not have access to information about their long-term career uncertainties, or who may not have a support network,” he said. “But our mere existence as an organisation is already having an impact. Just a few days ago, I had a conversation with someone who reached out to me. They are in the closet and studying finance, and have not had any prior involvement with our organisation. They said, ‘Even though I’m not out yet, your organisation gives me confidence that I can be out and secure a proper job in my field’. To me, this is why we do what we do.” Professor The Honourable Dame Marie Bashir AD CVO, pictured above, is the official ambassador for the organisation and gave the keynote address at the event. For more information visit

“As lawyers, we’re in a privileged position and have a responsibility to do our bit to ensure that our society is free fromdiscrimination and bullying, and that people are not held back from being as successful as they can and want to be because of factors which should be entirely irrelevant to that success.” CHRIS FREELAND, AUSTRALIAN MANAGING PARTNER, BAKER & MCKENZIE

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GRADJOBMARKET CAUSINGANGST There is significant anxiety within the legal profession and law schools about a lack of employment opportunities for law graduates, according to a working group established by the Law Society of NSW. The working group, established in June 2014 with the aim of considering the question of employment prospects for law graduates, found there are numerous drivers behind the perceived problem of graduate employment, including economic, systemic and educational factors. Economic factors include the impact of the global financial crisis on organisational structure and ways of working; law firms rationalising operations because of competitive pressure and demand for costs control from clients; increasing pressure from clients around billing practices; and an unwillingness by some clients to pay for junior lawyers. Systemic factors include the use of new technologies to undertake work previously done by junior lawyers, such as discovery and document automation; outsourcing of work to low cost jurisdictions; and the erosion of areas of work previously undertaken by junior solicitors, such as small claims matters in local courts. Education factors include that law schools are easy to establish and tend to be very profitable, with high fees and low expenses compared to other degrees; the introduction of the Juris Doctor degree in 2008, which provides graduates of disciplines other than law a pathway to legal practice; and the addition of legal studies to the Higher School Certificate curriculum which may have contributed to the popularity of law courses at the university level. Some factors influencing the graduate job market were found to be outside the Law Society’s sphere of influence, and the working group considered that it would be counterproductive to suggest that law schools limit the number of law student places. While anecdotal evidence is strong, it was recommended that more solid data be collected to get a more accurate snapshot of law graduate employment in NSW. The working group also recommended that the Law Society’s current offerings for graduates seeking employment in the profession be broadened and enhanced; that the Law Society and universities work more closely together to develop solutions; and that a co-ordinated, national response was desirable, given concerns about an over-supply of law graduates in other states. The working group represented a cross-section of the legal profession in NSW including staff from large and small firms, corporate and government practice, regional and city areas and young lawyers.

Community Legal Centres NSW (CLCNSW) has launched a twitter campaign to highlight concern about funding cuts in the lead-up to 1 July. Many CLCs face an uncertain future following the Commonwealth Government’s announcement that new funding arrangements will take effect from 1 July. The Commonwealth will reveal funding allocations when the budget is announced on 12 May. The environment of uncertainty has resulted in what many see as a growing crisis, with some CLCs seeing staff leave because of the uncertainty and many CLCs unable to plan for how they will deliver services. On 2 April, 90 days before 1 July, CLCNSW commenced the campaign under #FundCLCs, with specific messages about the impact of funding uncertainty on individual CLCs or on the sector as a whole flowing in. Some of the tweets have included: What will happen to women escaping domestic violence who need legal help? #FundCLCs @ womenslegalnsw 40% of @MNCCLC legal help for ppl with a #disability. Funding cuts = solicitor loss & reduced legal help #FundCLCs @HunterCLC’s outreach program to places like Muswellbrook, Cessnock, Port Stephens at risk #FundCLCs What will happen to clients who need urgent unfair dismissal advice? #FundCLCs @ kingsfordlegal Last financial year, CLCs in NSW completed almost 1,400 community legal education projects #FundCLCs


Contact the LawSociety for practical, confidential guidance on ethical questions and complaints. (02) 9926 0114

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30YEARSFOREDONSW Environmental legal centre EDO NSW will celebrate its 30th anniversary this year with Chief Justice Robert French to speak at a fundraising dinner on 25 June at the Museum of Contemporary Art. EDO NSW was formed in 1985 after the Wran government brought in reforms to planning, development and heritage laws and established the Land and Environment Court of NSW. Over the past 30 years, EDO NSW has run landmark legal cases and undertaken law reform work on coal mines, coastal and urban development, coal seam gas projects, forestry, contaminated land, and threatened species. Executive director Jeff Smith says EDO NSW has always sought to hold governments and companies to account through law reform work and court challenges. “We work on behalf of the community to protect the NSW environment,” he said. EDO NSW provides free telephone legal advice to over 1000 individuals and community groups across the state every year, and runs free legal education workshops to explain how the public can participate in development decisions and enforce environmental laws. The original convenor of EDO, Professor Ben Boer, said EDO NSW fulfils a key role in the NSW legal system. “I am confident that the EDO will still be here in another 30 years, for the simple reason that its raison d’être remains the same. It fills a gap that no private firm or educational institution is able to in promoting the defence of the environment,” he said. For more information visit: 04887-1_15 TIMETOGOONLINE The Australian Securities and Investments Commission (ASIC) is urging solicitors and members of the public to lodge reports of misconduct using its online form – not by post. “When you submit online, in addition to being able to instantly lodge reports of misconduct, the matter will be allocated to an ASIC action officer sooner than if you were to make a hard copy submission,” ASIC says. “Misconduct reporting often requires supporting documents or other material to be provided. The online form is designed to enable ASIC to fain a snapshot of the report of misconduct and you will be prompted to provide us with the relevant key details of the matter. You will not be able to attach supporting documents. “Once your matters has been registered and allocated to an action officer, they will be in contact with you so that you can provide the supporting documentation directly via email.” For more information visit: Find out more t: 1300 796 566 w:

PROFESSIONAL NOTICES On 19 March 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as Manager of the law practice known as Anthony Gilchrist, Solicitor & Conveyancer, formerly conducted by Anthony Gerard Gilchrist. On 19 March 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as Manager of the law practice known as The Compensation Recovery Lawyers, formerly conducted by Spiro Eistis. On 19 March 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Gerard Flynn, solicitor, was appointed as Manager of the law practice known as Mark Flynn & Associates Pty Ltd, formerly conducted by Mark Joseph Flynn. On 19 March 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Gerard Flynn, solicitor, was appointed as Manager of the law practice known as Alexander Tees, formerly conducted by Alexander Tees. On 7 April 2015, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Margaret Joan Scanlan be removed from the Roll of Local Lawyers, and that she pay the Society’s costs as agreed or assessed. The Council of the Law Society of New South Wales, at its meeting on 19 March 2015, resolved that the application for a practising certificate by Amil Dlakic for the year ending 30 June 2015 be refused pursuant to Section 48(3) of the Legal Profession Act 2004 .

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HARMONY AWARDWINNER A Sydney solicitor who arrived in Australia as a Sinhalese migrant has been honoured for her work helping women from culturally diverse backgrounds to speak out about domestic violence. Nalika Padmasena received the Stepan Kerkyasharian AO Harmony Award from NSW Premier Mike Baird at a dinner for 1300 people in Sydney in mid-March. Padmasena, who works at the The Aged-care Rights Service Inc. Older Persons Legal Service (OPLS) in Surry Hills, said she was honoured to receive the award. She has worked with migrants and refugees for more than 20 years and is a solicitor at TARS, the Age-Care Rights Service.

Nalika Padmasena with NSW Premier Mike Baird.


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MAY 2015 I LSJ 13














SOUNDADVICE More than 100 members of NSW Young Lawyers gathered on the rooftop of First Title in George Street in April to hear John McGrath, of McGrath Estate Agents, and Gary Newton of CBP Lawyers, share their knowledge. The main tip? If you want to build your reputation, make your clients the focus and remember how you make them feel. For more photographs of the event, see page 20.

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Sydney lawyers were among a swathe of senior executives who got on their bikes in a strong show of support for cycling in the city during April. They joined more than 3,000 employees from 250 organisations in the City of Sydney-backed Sydney Rides Business Challenge. Lawyers from King & Wood Mallesons, Clayton Utz and Maurice Blackburn were among the many law firms that participated alongside the Reserve Bank of Australia, Commonwealth Bank, ANZ, HSBC, Hilton and Qantas, to name a few. Maurice Blackburn general manager Ross Lamb (pictured, with Lord Mayor Clover Moore) said the challenge – which is a business-based competition to encourage more people to discover the joy and benefits of bike riding and is part of a worldwide program – was a great way to encourage staff to be physically and mentally fit. “Many of the staff already ride to work regularly but doing it in a challenge like this is culture building – it’s good for productivity and staff wellbeing and good for business,” he said. “I have ridden all my life. I ride to and from work which gives me energy for the day and a chance to unwind on the way home. I hate the idea of commuting, then having to get changed and go out to a gym. Senior management can be a stressful. Cycling is a fun and efficient way to overcome the demands of the day and keep a balance in life.” Sydney criminal and employment lawyer John Laxon, who heads the Pyrmont- based firm Laxon Lex Lawyers, said he rode every day and enjoyed the health benefits “which are important for someone in a stressful and sedentary job”. “When I get to work and again when I get home at night, I feel terrific and energised,” Laxon said. “The decision to ride to and from work each day now seems like such a no-brainer, I don’t know why more people don’t do it.”


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THOUGHTLEADERSHIP More than 100 lawyers gathered at the Law Society of NSW on 26 March for the first Thought Leadership event of 2015. This year, the events will cover the topic ‘Australia in the world’ and the first sold-out event looked at the issue of sovereign borders. JANE SOUTHWARD reports.

P rofessor Gillian Triggs (centre), president of the Australian Human Rights Commission; Peter Hughes (right), an academic at the Australian National University with more than 30 years’ experience working in immigration and refugee policy; and Julian Burnside (left), a barrister and human rights lawyer who was last year awarded the Sydney Peace Prize, kept their audience enthralled at the Law Society’s first Thought Leadership event in March. Ali Mojtahedi, Principal Solicitor at the Immigration Advice and Rights Centre, facilitated the panel. Prof Triggs said Australia was “exceptionist” when it came to the nation’s treatment of asylum seekers. “… Unlike the whole of the rest of the world, we don’t have a regional treaty and we don’t have regional complaints processes or a regional court to appeal to,” Prof Triggs said. “I come back to the core point that we are exceptionist globally in relation to our protection of human rights. We do protect human rights for most people most of the time, but where we have a breakdown, as we clearly have in relation to refugees and asylum seekers, then it is extremely difficult for

the courts to do anything other than interpret as strictly as they can the precise terms of the legislation. “What we’ve got is this constant battle with the government on the one hand and our very quiet but dogged High Court on the other that is trying to interpret the legislation in a way that forces the Minister to have proper reasons and to exercise his discretion in affair or comply with the Migration Act . “But every time it doesn’t work for the applicant, or rather it works against the government, like in the Malaysia case and others, they go back to parliament and they amend the legislation “We have an extraordinary battle going on that the public is completely oblivious to. It is, legally, fascinating.” Hughes noted that “in many respects, it was the Rudd Government that slammed the door ... on maritime asylum seekers” and that “turning around the boats from my perspective was really just a matter of pushing the bolt across”. “I entered this field over 30 years ago at the height of the Indo-Chinese refugee crisis when there was a national consensus – and a very positive national consensus - about the treatment of Indo-Chinese refugees and something

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we managed very successfully over the time, and over a 10- or 15- year period,” Hughes said. “It is a shock to me that over time we lost the national consensus we had then and ended up with the harshest measures you could possibly imagine in order not to have maritime asylum seekers.” Burnside noted that there was a risk of the discussion “sounding politically partisan”.

“Unlike the whole of the rest of the world we don’t have regional treaty and we don’t have regional complaints processes or a regional court to appeal to.” PROFESSOR GILLIAN TRIGGS

“Although the Coalition have been the front-runners in advocating harsh treatment, it is important to remember that Labor have never contradicted the fundamental untruth that these people are illegal and Labor and the Coalition fought it out in the September 2013 election, both of them trying to win political support by promising cruelty to a group of human beings,” Burnside said. “That is something I never thought I would see in this country.” Prof Triggs said there was “a real sense of shock in the United Nations in Geneva” at Australia’s response. “Where that response came from, particularly, was from our Asian neighbours,” she said. “All of them were saying they look to Australia as a leader in the region on human rights issues. I think the international community generally will probably see this as a blip. “They don’t really believe this is Australia. I think they think it is a leadership issue or a political position at the moment, and pretty much that was what I was trying to say. We will get over this. “This is not the Australia that we are proud of. This is such huge global problem, with 55 million displaced people and refugees, that we need new and fresh thinking, even if it is controversial. Most importantly, we need political leadership; we need people of vision. “It is not inappropriate to say that today, because we have the funeral tomorrow of Malcolm Fraser, who has been such a strong supporter, and the death not so long ago of his nemesis, Whitlam. “But these were di erent men. They had a di erent vision; a di erent sense of principle. I do believe we have allowed a political environment to be created in which that kind of leadership and strength of vision for Australia is being lost. And I think we and the community now have to stand up for the values that we know Australians really do care about.” Hughes called for a national refugee policy as a “good starting point to reframe the whole thing”. “I think active engagement with the problem, rather than disengagement, is the way we should go with our national policy,” he said. “What we have ended up with over the last five years ... is about the harshest way you can have to discourage maritime movements.”

MAY 2015 I LSJ 17


review THE YEAR IN 1980

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

NSWYOUNGLAWYERSGROWS On 18 December 1980, the Law Society Council resolves to constitute a Young Lawyers Section, with its own constitution, rules and by-laws, adding weight to the original NSW Young Lawyers that first came into being in 1963 when it was established as a committee of the Law Society of NSW. ANTARCTICTREATY ENVIRONMENT PROTECTION ACT1980 The Antarctic Treaty Environment Protection Act 1980 comes into play, a Commonwealth Act that applies within the Australian Antarctic Territory, and to Australian citizens, organisations and property in the Antarctic Treaty Area. It addresses three main issues: 1. The conservation of Antarctic fauna and flora, including the specification of permits and specially protected areas. 2. Environmental impact assessments. 3. Inspectors and o ences. LET’SKILLALLTHELAWYERS! The Premier of NSW, Neville Wran, addresses the Young Lawyers Committee at the Hilton Hotel on 3 November 1980. “Distrust of our profession has an ancient lineage – as long ago as the reign of Henry the Sixth, the policy speech of the peasants in revolt consisted of one sentence: ‘First, let’s kill all the lawyers ...’,” Wran says. “There may be an element of masochism in the fact that so many of us end up in an even more unpopular calling – politics. But for all the criticism that is heaped on lawyers from time to time, the fact is that they have an essential and responsible role to play in the community. As William Pitt the elder said in 1770 in a speech on the case of John Wilkes – “Where laws end, tyranny begins”. This is as true today as it was in the eighteenth century. Mr Wran points to a pilot scheme, whereby three Community Justice Centres are established. “The Community Justice Centres are designed to provide a place where aggrieved marriage partners, or disputing neighbours, can debate and sort out these problems without violence,” he says. “I believe this represents a constructive step forward ... I use this example mainly to illustrate the point I made earlier – that the lawyer’s role in society is basic to the maintenance of a civilised state.”

WHAT’SNEW? The new High Court building opens in Canberra, five years after construction began on the shore of Lake Burley Gri n. The Society announces in October that, after a feasibility study, it has resolved to purchase a computer. “It is anticipated that this will be in operation by the time of issue of practising certificates in 1981,” the Journal reports. The Journal also publishes an evaluation of word processors, saying: “The greatest advantage that word processors o er is they provide the opportunity to reorganise the o ce in a more e cient manner. Once reorganised, the typing performance can be regularly monitored and controlled. Typists within many o ces are only providing 15 to 20 pages of typed text each day. The main reason for this is there is no greater demand for their service. Their job is essentially to man a station and type if required.”

The Hon Sir Laurence Street (left), Chief Justice of NSW, and Mr AJ Mitchell, president of the Law Society, attend the Law Society’s opening of law term dinner at the Sydney Opera House.

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STEPHEN BYRNE Now a principal Allion Legal

PETER BOBBIN Now a principal Argyle Lawyers

JANE OWEN Now a partner Bird & Bird, Sydney

KATHRYNMILLIST SPENDLOVE Now a consulting principal Nexus Law Group, Sydney

MARK FEETHAM Now a partner Thomson Geer, Sydney

JESS MILLER NEE DODSON Now Head of Legal and Government Relations (Australia/NZ) Procter & Gamble

PAULINE TAN Now a partner, Real Estate Ashurst, Sydney

BENWARNE Now a partner, Corporate Ashurst, Sydney

ANTON HARRIS Now a partner, Corporate Ashurst, Sydney

OLIVIA LAU Now a partner, Infrastructure Ashurst, Sydney

SARAHMORTON RAMWELL Now global pro bono partner Ashurst, Sydney

MICHELLE ARCHER Now a principal Archer Law

Know someone with a new position? Email us the details and a photograph (at least 1MB) at:

MAY 2015 I LSJ 19


YOUNGLAWYERSPROPERTYEVENT NSW Young Lawyers and sponsor First Title hosted a networking event in Sydney on April 16. Real estate guru John McGrath and Gary Newton, partner in the Property and Development team at CBP, shared their tips for building positive partnerships.


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More than 100 guests turned out to hear, from left below, Peter Hughes, Professor Gillian Triggs, refugee lawyer Ali Mojtahedi, and Julian Burnside discuss the topic ‘Sovereign Borders’ at the Law Society on 26 March.


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TIMEFORARETHINK The US news agency The Intercept has issued a stern warning about the consequences of capital punishment, as LILIANA SEGURA writes. UNITED STATES

B y now many have read and been moved by the extraordinary mea culpa published in The Shreveport Times by a man named Marty Stroud III, who more than 30 years ago sent Glenn Ford to die for a crime he did not commit. “How wrong was I,” wrote Stroud, who as a young prosecutor convicted Ford, a black man, with the help of an all-white jury in Louisiana’s Caddo Parish. Stroud’s murder case against Ford was bankrupt on its face — at trial, a key witness admitted in open court that her testimony had been a lie. Yet Ford didn’t stand a chance. His court-appointed lawyers had never handled a criminal trial, let alone a capital case. He was sentenced to die, though fortunately never executed. After decades spent fighting to prove his innocence, Ford was was finally cleared after the DA’s office revealed it had obtained exonerating evidence. But by the time he was released from prison last year, at 64, Ford was sick with cancer. Doctors say he has just months to live. Ford has spent his last days fighting for financial compensation, which the state has so far denied him. In his anguished letter to the Times , Stroud said that Ford “deserves every penny” for his lost freedom and expressed deep remorse “for all the misery I have caused him and his family”. Stroud’s apology made headlines across the country. The National Registry of Exonerations called it “uniquely powerful and moving.” In a culture that shields prosecutors from having to answer for even the most outrageous miscarriages of justice, Stroud’s letter is indeed an astonishing read. Though no substitute for accountability – he denies any intentional misconduct — Stroud lays bare the hubris that drives state actors to aggressively pursue even the most questionable convictions.

“In 1984, I was 33 years old,” Stroud writes. “I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning.” Stroud recalls going out for drinks to celebrate Ford’s death sentence, which he labels “sick”. Not only because Ford turned out to be innocent, but because today Stroud believes that, as a fallible human being, he never should have had that kind of power to begin with. The death penalty, he writes, “is an abomination that continues to scar the fibres of this society.” Stroud’s dramatic conversion, his revulsion at the memory of toasting a death sentence, echoes a story told by a different man, former Florida prison warden Ron McAndrew. On the morning after overseeing his first execution in 1996, McAndrew went out to the “traditional breakfast” with the execution team, just 15 miles from the death chamber. “Everyone in the restaurant knew who we were and what we had just done,” he wrote. “There were even a few ‘high five’ signs.” He spotted the defence attorney who had tried to save the life of the man he had just helped execute. “I saw my own sickness on her sad face,” McAndrew wrote. The ritual felt wrong. “It was my first and my last traditional death- breakfast.” Later, Esquire would publish a profile of the former warden. It was titled ‘Ron McAndrew Is Done Killing People’. Others who once operated the machinery of death have reached similar epiphanies. Two years ago, The Guardian published a sobering Q&A with Jerry Givens, a retired executioner who killed no fewer than 62 prisoners for the state of Virginia. Givens, a clearly traumatised man, said taking the job was the “biggest mistake I ever made”. Today, he serves on the board of Virginians Against the Death Penalty. Former Georgia warden Allen Ault, who presided over five executions

and now speaks out against capital punishment, says he has “spent a lifetime regretting every moment and every killing”. Jeanne Woodford, who gave the order for four executions as the warden of San Quentin Prison, later became the executive director of the abolitionist group Death Penalty Focus. In 2013, The New York Times ran an obituary for a warden-turned-academic who oversaw three executions at Mississippi’s Parchman Farm. It included his nagging belief that one of the men may have been innocent. In its headline, the Times remembered him as ‘Donald Cabana, Warden Who Loathed the Death Penalty’. These are transformative figures. Their accounts, while powerful on their own, are important in the space they create for others to change as well — perhaps even some still working inside the system they have since disavowed. As Americans increasingly question the death penalty amid new exonerations and botched executions, we can probably expect — and should encourage — more of these stories. Yet as these narratives become more ubiquitous, they also expose a nagging hypocrisy. If we are drawn to such expressions of penitence and moral clarity, if we see them as brave or enlightened or even noble, why don’t we grant people in prison the same potential for change? Why have we abandoned rehabilitation, once supposedly central to the mission we call “corrections”, and replaced it with the longest sentences on the planet? Why do we give people who do bad things so few pathways towards redemption? Is it too much to consider that murderers in prison are as complex and human as people who kill in the name of the state? Earlier this month, the state of Georgia came within hours of killing 47-year-old Kelly Gissendaner for the murder of her husband in 1997. Although her degree

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