LSJ May 2016
ISSUE 22 MAY 2016
BLAME ITON THEBRAIN
HOWNEUROSCIENTIFIC EVIDENCE IS CHANGING CASE LAW IN AUSTRALIA
LAWYERS:WHAT’SNEXT? WHY A NEW INQUIRY INTO THE FUTURE OF THE LEGAL PROFESSION IS VITAL
INGANDHI’SNON-VIOLENT FOOTSTEPS THE ROLE OF LAWYERS IN PEACEFUL PROTEST CRASHING, BURNINGANDLOVING IT WHY FAILING IS THE BEST EDUCATION MAKEHAYWHILE THE SUNCORP SHINES A DAY IN THE LIFE OF AN IN-HOUSE GIANT COMMONLAWUNDERTHE SPOTLIGHT THE ALRC’S LANDMARK FREEDOMS INQUIRY
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34 PROFILE Julie McCrossin profiles Sue Higginson, the head of the NSW Environmental Defenders Office 38 THEFUTUREOF LAW Change is here and a new Law Society Thought leadership project will help solicitors prepare and give them a say in the debate 48 ADAY INTHELIFE Suncorp Chief Risk and Legal Officer Anna Lenahan tells Jane Southward about her work as an in-house lawyer as one of Australia’s largest companies
54 THEPOWEROF FAILING It’s time to stop treating failures as disasters, writes Thea O’Connor, who reports on the new management buzz term “flearning” 57 FITNESSFAQ Reporter Kate Allman goes to the experts for answers to five key health and fitness dilemmas 58 TRAVEL In our city guide we visit Tokyo and in You Wish we test-drive a luxury hotel in the Japanese capital that’s been renovated by the architect of Tokyo’s new Olympic stadium
Much can be achieved by protesting peacefully and lawyers have a special role to play in making it happen, writes Eliza Ginnivan 24 INFOCUS Just how do law firms become high performance? A new Macquarie Bank report reveals some fascinating insights into how law firms succeed 26 COVERSTORY “It wasn’t me, it was my brain.” Dominic Rolfe reports on how neuroscientic evidence is changing the law
ISSUE 22 I MAY 2016 I LSJ 3
Photograph: Amanda Leckie
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS News and events from the legal world 16 THE LSJ QUIZ 19 CAREERMOVES Who moved where this month
47 LIBRARYADDITIONS New books at the Law Society library 52 EXTRACURRICULAR Corrs Chambers Westgarth partner Thomas Jones shares the advantages of combining music with the practice of law
68 ADVOCACY: THE LATEST IN LAW REFORM
70 PRACTICE: SUPERVISION RESPONSIBILITIES
72 COMMONWEALTH: ALRC FREEDOMS INQUIRY
76 MEDIALAW: NATIONAL REFORMS
78 PROPERTY: SWIMMING POOLS UPDATE
80 RISK: SUBPOENAE AND CLAIMS OF PRIVILEGE
82 PLANNING: STANDARD INSTRUMENT CASES
20 OUTANDABOUT 42 CAREERCOACH Mind your language, writes Fiona Craig 44 CAREER101
Book reviews, events and our movie giveaway
84 COSTS: INACCURATE ESTIMATES & NEGLIGENCE
86 CONTRACTS: VICTORIA V TATTS HCA DECISION
Yarns we can’t bill for
87 EMPLOYMENT: EXEC CLAIMS AGAINST BANKS
106 EXPERTWITLESS Legal news to make you giggle
Amy Noble, Fremantle Media
90 INTERNATIONAL: CHINA-AUS EXTRADITION
Etiquette and fashion plus tips on how to succeed in a performance review
92 EMPLOYMENT: PRIVILEGEDWORKPLACE REPORTS
94 CASENOTES: HCA, FCA, CRIMINAL, FAMILY & WILLS
4 LSJ I ISSUE 22 I MAY 2016
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A WORD FROM THEEDITOR
It’s that time of year when renewal of both your practising certi cate and your membership with the Law Society of NSW is due. Most of you will already have received your copy of the Member Services Guide and the accompanying calendar that features 12 of the most inspiring lawyers who have featured in the LSJ over the past year. is year, our focus is on encouraging solicitors to be a part of something bigger, to be a proud and active member of our community of legal practitioners, who come from far and wide.
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
e legal profession is a unique and diverse beast and coming together to share experiences, concerns and the common thread that is the rule of law can be very rewarding, not to mention inspiring (which is why the calendar has been spied on so many desks in NSW law rms). As a profession, we have a lot to be proud of and much to gain by banding together. We look forward to welcoming members old and new into the fold in 2016. On another note, the Law Society is in the nal stages of creating an honour board as a tribute to solicitors who served in World War I. e board will include the names of any solicitor who served and was killed in action. Anyone with names that should be included in the board, please contact firstname.lastname@example.org
Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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
Dominic Rolfe is a Sydney-based journalist. In this major feature, he explores the burgeoning area of neuroscience in the law, and what solicitors need to know about its impact on common law in Australia and elsewhere. Cover story p26
Julie McCrossin is a writer and trainer who studied law. In this issue, she meets Sue Higginson,
Thea O’Connor is a Bellingen-based health journalist and wellbeing coach. In her first feature for the LSJ, she explores why failing can be the best thing you can do for your career and your overall health and wellbeing. Health p54
Prof Derek Wilding of the UTS Faculty of law worked at the Australian Communications and Media Authority and was executive director of the Australian Press Council. He explains the possible impact of the next wave of national media reforms. Media law p76
the chief executive o cer at EDO NSW,
who tells why saving the environment is the most satisfying professional pursuit she can imagine. Profile p34
Cover: Neurons in the brain
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 email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 JUNE 2016
6 LSJ I ISSUE 22 I MAY 2016
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I recently had the pleasure of visiting Redfern Legal Centre at the invitation of Law Society councillor David Porter. The centre provides legal services to more than 200,000 people each year, however, the service turns away 150,000 other people seeking legal assistance, largely due to a lack of resources. Community Legal Centres are facing a 30 per cent reduction in Commonwealth funding, due to take effect on 1 July next year. Community Legal Centres make a distinct contribution to fill gaps in legal assistance, reducing the case load on the courts. Governments at a state and federal level must ensure they are appropriately funded to provide services to clients who are most in need.
While court funding is an issue of high priority for the Society, the scarcity of solicitors being appointed to the courts has not gone unnoticed. It is of some concern to me that despite there being many talented and suitably qualified solicitors available in
NSW, their appointment to the courts of NSW as well as to the Federal courts remains a rarity. Judicial officers must be selected from the widest possible pool of talent, and that includes solicitors. With this in mind, in the coming months the Society will be exploring ways to support solicitors seeking judicial appointment. Under new arrangements that came into effect after the 2015 election, the Minister for Police and Justice is the senior minister in the “justice cluster”. The Law Society recently raised concerns that the traditional role of the Attorney- General, which is essential to ensure future legislation protects the rule of law and reflects an appropriate balance between legitimate law enforcement objectives and civil liberties, appears to have been eroded under this arrangement. An example of this is soon to be debated in NSW Parliament – the Crimes (Serious Crime Prevention Orders) Bill 2016 and the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 reflect a trend of the NSW Government introducing legislation that adversely affects the individual freedoms of community members, and without prior consultation. The 25th anniversary of the report of the Royal Commission into Aboriginal deaths in custody in mid-April was an opportunity for the Society to highlight the disproportionately high rates of incarceration of Aboriginal people, which have worsened since the report was released. Most of the 339 recommendations have not been implemented in Australia. Where they have been, such as the Aboriginal Legal Services Custody Notification Services, better outcomes have been achieved but more needs to be done. Significant drivers of Indigenous incarceration in NSW have been laws that see people driving unregistered after defaulting on driving-related fines, a lack of non-custodial sentencing options in rural and remote regions, and the disproportionate impact of AVO and bail breaches on Indigenous people. For a full version of the Law Society’s statement on this, visit lawsociety.com.au/about/news/1114667. Just a reminder that lodgment for practising certificate and membership renewals is due on 15 May. Highlights of our member support and services offering include discounts for one of Australia’s largest CPD programs, support though the Lawyers Assistance Program and Professional Support Unit, regular updates on key issues and events and legislative news in our member-only digital newsletters, and, of course, access to this award-winning publication in print, online and via the LSJ app.
8 LSJ I ISSUE 22 I MAY 2016
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ISSUE 22 I MAY 2016 I LSJ 9
LETTERS TO THE EDITOR
New ASIC register Since December 2012, the Australian Charities and Not-for-profits Commission (ACNC) has received more than 1,000 complaints from registered charities about the way banks and other financial service providers have tried to verify their information by using the now out-of-date Australian Securities and Investments The issue as it relates to charities is that banks and other financial services providers that are required to check a government register to verify information are continuing to access the ASIC Company Register. While this was the norm for a long time and was in the past appropriate for checking information about a for-profit organisation, the ASIC Company Register has not been the source of charity data since December 2012 – when the ACNC was established. Anyone seeking to verify the details of a registered charity must check the ACNC Charity Register, available free of charge at acnc.gov. au to ensure that they access current information. Greg Tanzer, ASIC Commissioner, and I are calling on banks and other service providers to alter their internal processes to reduce the burden on registered charities. Over the past three years, we have been Commission (ASIC) Companies Register.
made aware of hundreds of instances where charities have been denied loans and other financial assistance. As well as being denied bank loans, other issues reported by charities include missing out on grants or funding, loss of AAA credit rating, previous directors being held accountable for the charity, and previous directors being able to access charity bank accounts when they should no longer be able to do so. These issues have been impacting charitable companies, which accounts for about 10 per cent of the key stakeholders, including bank CEOs, the Australian Banker’s Association, lawyers and accountants to further raise awareness of the ACNC Charity Register and the information it holds. Once the message filters down within these organisations, I anticipate it will decrease the impost that charities are currently facing. This slow adoption of the use of the ACNC register has put many charities under significant financial pressure for an extended period. We are keen that the financial sector takes note of the primary source of information on charitable companies, the ACNC register (acnc.gov. au), so we can resolve this issue for the benefit of the charity sector. Registered charities that are facing these issues are ACNC Charity Register. To assist, the ACNC and ASIC are contacting the
encouraged to contact the ACNC by emailing firstname.lastname@example.org, and banks and financial service providers can find more information about the Charity Register at acnc.gov.au/ checkthecharityregister. Susan Pascoe Commissioner Australian Charities and Not-for-profits Commission Common law protection Legislative encroachment on rights and freedoms was prominent in your last issue (“The nature of the profession and its identity” by Tom Bathurst, LSJ March and “A matter of democracy” by Peter Greste, LSJ March). Unfortunately, such encroachment is standard practice for the NSW Parliament. Under the Fines Act 1996 , the government can in effect determine that a criminal offence has been committed, determine the sentence and enforce that sentence – all without judicial involvement. This encroaches on several fundamental common law freedoms and the separation of powers. NSW courts have refused to hold this breaches the Kable principle. Parliament makes nearly 1,000 years of common law protection impotent at the stroke of a pen, all in pursuit of a few hundred dollars. Why has my protection gone? How am I, an ordinary citizen, meant to get it back? Christopher Budd
INSIDETHEWORLD OFYOUTHJUSTICE THETEAMATTHESHOPFRONTYOUTHLEGAL CENTREREVEALSWHATDRIVESTHEM
(NOTQUITE)ACCESSALLAREAS AREFREEDOMOF INFORMATIONPROCESSES STANDING INTHEWAYOFJUSTICE?
MASTERINGTHEARTOFSAYINGNO ANDWHY ITMAYSAVEYOURCAREER INTHESPIRITOFCOLLABORATION WHYLAWYERSSHOULDTALKTOTHEPRESS CRIMES,LIESANDFALSEMEMORIES ADAY INTHELIFEOFAN INNOCENCEPROJECT ARBITRARILYDETAINED WHATTHEUNOPINIONMEANSFORJULIANASSANGE
21/03/2016 2:54 pm
WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WINLUNCHFORFOUR at the Law Society dining room. E: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! SusanPascoe has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 22 I MAY 2016
We don’t want other families to suffer
When my mum died from breast cancer, I knew that I didn’t want other families to suffer the same tragic loss. That’s why our family supports the Walter and Eliza Hall Institute of Medical Research. When we met the scientists at the Walter and Eliza Hall Institute, we were inspired by their passionate commitment to finding better treatments for patients. You can be assured that donations and bequests to the Walter and Eliza Hall Institute support the best research into cancer, infectious diseases and immune disorders.
– Eleni Horbury with her daughter Sophie, and cancer researcher Dr Anne Rios.
For more information please contact Ms Susanne Williamson, Head of Fundraising, on 9345 2962 or email@example.com W wehi.edu.au
CANCER | I MMUNE D I SORDERS | I NFECT I OUS D I SEASE
ISSUE 22 I MAY 2016 I LSJ 11
With a new team and Professor Gillian Triggs, President of the Australian Human Rights Commission, as Patron, 2016 is shaping up to be a busy year for NSW Young Lawyers. Bigyear ahead for NSWYoungLawyers
SYDNEY LAWYER HOSTS DINNER TOFIGHT CANCER Ashleigh Mills, 26, will host a “Dinner for a Difference” at the
Novotel Sydney Central on Saturday 18 June to raise money for the Australian Cancer Research Foundation (ACRF). Mills, a workplace relations and safety lawyer at Holding Redlich (pictured above), has become an advocate for the ACRF since she was diagnosed with thyroid cancer in June 2015. Her illness started with her friends spotting a small lump on her neck. By August she had her thyroid removed and had started radioactive iodine therapy. “It shook me around a bit, to say the least,” said Mills. “I’d never really had much contact with the hospital system and then all of a sudden everything was happening at once.” According to the ACRF, cancer remains the second biggest killer in Australia after cardiovascular disease. One in two Australian men and one in three Australian women will be diagnosed with cancer by age 85. Fortunately for Mills, thyroid cancer often responds well to treatment thanks to medical and scientific advances made by cancer research organisations including the ACRF. After undergoing treatment, Mills decided to raise money to help the ACRF to continue its research and improve cancer treatment methods. Mills invites law firms and other organisations to join Holding Redlich and support her “Dinner for a Difference” through sponsorship packages or by donating items for the raffle draw and silent auction. Individuals are also welcome to attend the black tie dinner, which includes a three-course meal, four hours of drinks, a silent auction, raffle and live band. All proceeds raised on the night will be donated directly to the ACRF. DINNER FOR A DIFFERENCE Saturday 18 June, Novotel Sydney Central $155 per person. Corporate sponsorship packages start from $500. Tickets available via trybooking.com/KZYQ.
NSW Young Lawyers 2016 office bearers (from left): Secretary Jennifer Windsor, Immediate Past President Elias Yamine, President Renée Bianchi, Vice President Emily Ryan, and Treasurer Kathryn Lewis.
Key events for the year include the Golden Gavel on 20 May , the NSW Young Lawyers Information Evening on 22 June and the State of the Profession address by Professor Triggs on 22 September. “The theme for NSW Young Lawyers this year is engagement and we’re looking at how we can reach out to our members,” President Renée Bianchi said. “We welcome the opportunity to speak to young lawyers in firms about how they can be involved with NSW Young Lawyers.” NSW Young Lawyers is a special division of the Law Society of NSW, committed to providing new generations of legal professionals with the expertise, tools and guidance to help them reach their goals. Since 1963, NSW Young Lawyers has provided networking and support opportunities along with a range of membership benefits in what is the country’s largest professional body for young lawyers. Membership is free for all NSW lawyers who are under 36 or in their first five years of practice as well as NSW law students. Membership provides a wonderful stepping stone to contributing to the broader profession. NSW Young Lawyers has 16 committees that members can join, covering large areas of practice such as civil litigation and criminal law, as well as specialised areas such as animal law, environment and planning law and taxation law. Membership of NSW Young Lawyers committees is not by invitation – anybody is welcome to come along to meetings, projects and events.
For more information and event details, visit younglawyers.com.au.
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Twenty-five NSW lawyers celebrated reaching as many years of practice at the Far South Coast & Monaro Regional Law Society Annual General Meeting on 23 March. The AGM followed the Society’s annual CLE Day in Merimbula, which featured a number of presentations by speakers including the NSW Legal Services Commissioner, John McKenzie. Law Society of NSW President Gary Ulman spoke about professional conduct for lawyers, before presenting each of the lawyers with certificates to mark their quarter-century achievement. A celebratory dinner was held at the Merimbula Wharf restaurant afterwards.
Recipients of 25-year practicing certificates, left to right: Steve Clark, Wayne Boom, Clem Parbery, Kevin McMahon, David Griffiths, David Hawdon, Brian Robinson, Thomas Michelsen, Gary Ulman, Peter Harding and Donald Maxwell.
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ISSUE 22 I MAY 2016 I LSJ 13
25years andno improvement since Aboriginal Deaths inCustody report BY KATE ALLMAN
Twenty-five years since the Royal Commission into Aboriginal Deaths in Custody handed down its report on the high rate of Indigenous deaths in custody was marked on 15 April. The original report, handed down in 1991, investigated 99 deaths in custody between 1980 and 1989. The principal explanation given for the high number of Aboriginal deaths in custody was the disproportionate rate at which Indigenous people were detained, arrested and imprisoned. Although 339 recommendations were made with the aim of reducing this high rate of Indigenous incarceration, the Australian Institute of Criminology (AIC) says that today the situation is in fact worse. The number of Indigenous Australians in prison has increased since 1991 from 14.4 per cent of the prison Donate time for justice thisMay
incarceration rate of Indigenous people that were recommended by the Bureau of Crime Statistics and Research Director, Don Weatherburn, at the Access to Justice Conference in Sydney last June. These include properly resourced driver licence programs that are accessible to Indigenous people, a graded response to non-compliance with community correction orders and the re-introduction of earned reduction of sentences. Longer-term measures include improved antenatal care for Indigenous women, more work to increase Indigenous school attendance and completion rates, and a rigorous federal program to pay employers to employ Indigenous people. “The Law Society of NSW strongly supports these evidence-based measures, and again urges the NSW Government to take the lead in setting justice-specific Close the Gap targets,” said Ulman.
population to 27.4 per cent, according to the AIC. In juvenile detention, a staggering 59 per cent of incarcerated people are Indigenous. And Indigenous people are 15.4 times more likely to be incarcerated than non-Indigenous Australians. The President of the Law Society of NSW, Gary Ulman, noted these statistics with concern. “The significant drivers of Indigenous incarceration in NSW are laws that incarcerate people for default on driving related fines, the lack of non-custodial sentencing options in rural, regional and remote regions, and the impact of breaches of justice-related procedures such as bail and AVOs,” Ulman said. “Mandatory minimum penalties are also another key driver of high Indigenous incarceration rates, particularly where they involve alcohol-related offences.” Ulman said the Law Society would support measures to reduce the
International Justice Mission (IJM) Australia will host two fundraising events on 9 May to help lawyers combat sex trafficking in The Philippines. Baker & McKenzie will host a breakfast in Sydney and McCabes a boardroom lunch as part of IJM’s Time For Justice campaign. The campaign encourages lawyers to donate the equivalent of their hourly charge-out rate to sponsor local IJM lawyers and social workers fighting sexual exploitation in Cebu in The Philippines. The World Economic Forum reports that sexual exploitation is a $99 billion global industry and makes up 66 per cent of the illegal profits made from human trafficking. Sexual exploitation of children is rife in the Philippines, however, IJM Australia’s Chief Executive Amber Hawkes says that IJM’s work has resulted in a 79 per cent reduction in the number of minors exploited over the past six years. Join IJM for breakfast or lunch to learn more about their work and how Australian lawyers can help. Visit ijm.org.au for tickets or to make a donation.
EDONSWFUNDRAISING LSJ contributor Julie McCrossin hosted Environmental Defenders Office (EDO) NSW’s gala dinner on 6 April. The event at Sydney’s Doltone House raised more than $50,000 for the organisation, a non-government, not- for-profit community legal centre specialising in public interest environmental law that is committed to helping the community to protect the environment and heritage through law. You can read Julie’s feature on EDO NSW’s CEO and Principal Solicitor Sue Higginson, pictured with EDO NSW Chair The Hon Justice Jane Matthews AO, on page 34.
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A witty and sarcastic home video by Monash law student Sarah Kaltmann has won Sydney law firm Bird & Bird’s “General Counsel for a Day” competition. The competition invited law students from around Australia to create 90-second videos answering the question, “What do you envisage as the greatest opportunity for general counsel of the future?” Bird & Bird veered away from traditional essay or mooting competitions towards a more modern, technology-led competition reflective of the firm’s clients. “And on the eighth day, God created opportunities for general counsel so they could make more money,” said one of the characters from Kaltmann’s entry – a sarcastic Q&A-style video
about globalisation of the economy. Competition entries were posted online for public voting and Kaltmann’s video received 2,604 votes. Her closest competitor was Karen Zhong from UNSW, who received 1,147 votes. The top six entrants were flown to Sydney to receive their prizes of spending a day in the life of a general counsel, shadowing lawyers from Vodafone, Bravura Solutions, AUB Group, FetchTV and ENero Group. Paul Catchlove, from Queensland University of Technology, came fourth in the voting and spent Monday 11 April shadowing Trent Czimer, General Counsel at Vodafone. Catchlove has had an unusually diverse career in banking, as an opera singer and then as a Catholic priest for three years in Rome, working alongside Pope Benedict. He went back to university to study law at 35 and, now 38, sees in-house legal
counsel as an attractive next move. “One of my frustrations when I was working in business was that the lawyers we employed from law firms would understand purely the legal issues but not necessarily the implications for a business,” said Catchlove. “Often it takes someone to think a little more creatively or to take some calculated risks to partner those two objectives. That is why I’ve thought the role of general counsel might be a good pairing for my skills and passions.” Catchlove and the other winners also received a one-on-one mentoring The competition aimed to increase the profile of the in-house legal career path among law students. More information and video entries can be viewed at gcforaday.com . session with a Bird & Bird lawyer, followed by a celebration dinner.
ISSUE 22 I MAY 2016 I LSJ 15
Cross-examination Test your legal knowledge ...
On 5 April 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Gerard Flynn, solicitor, as manager of the law practice formerly known as Heaton Law for a period of two years. On 30 March 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Juliet Margaret Kaberry, solicitor, as manager of the law practice formerly known as Ronik Pty Ltd for a period of one year. No conduct issue. On 17 March 2016 and pursuant to s.77 of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to immediately suspend the practising certificate of Michael Leon Kinchington. On 17 March 2016 and pursuant to s.82(1)(c) of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to suspend the practising certificate of Seog Won Yoon until 30 June 2016. On 17 March 2016 and pursuant to s.82(1)(c) of the Legal Profession Uniform Law (NSW), the Council of the Law Society resolved to suspend the practising certificate of Romel Badal till 30 June 2016. On 17 March 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, solicitor, as manager of the law practice formerly known as W J Gough Solicitor for a period of one year. No conduct issue. PROFESSIONAL NOTICES
Which Australian state recently legalised medicinal cannabis?
What is the nickname of the notorious bank robber who was released from a Brisbane jail and extradited to Western Australia in April?
3. How many members of Parliament are elected to the Australian House of Representatives? 4. Who is the current Chief Justice of the New South Wales Supreme Court? 5. Name the three institutions of government that are divided by the doctrine of the separation of powers. 6. What international treaty established the International Criminal Court in 1998? 7. Controversially, which western democratic state is not a party to the treaty in the previous question? 8. According to the NSW Solicitors’ Rules, a solicitor’s duty to the client is paramount and prevails in the case of inconsistency with any other duty. True or false? 9. How can you make a call on your mobile phone while driving a car, without breaking the law? Not yet using the FLSS? The Family Law Settlement Service (FLSS) o ers mediation for financial or property disputes at the post-conciliation conference stage. The program is a joint initiative of the Family Law Courts, the NSW Bar Association and the Law Society of New South Wales that aims to help families avoid the costs, uncertainty and delays of having a dispute determined in a court hearing. Instead, a qualified mediator provides a structure for parties to find common ground and discuss issues in dispute through a two-hour preliminary conference and three-hour mediation session. All agreements are made between the parties and there are no imposed decisions. Fees are $990 per party and cover mediators’ fees and a FLSS administration fee. Go to lawsociety.com.au/FLSS for more information. 10. Is it legal to pick up a phone in your hand while driving? Answers on page 65.
16 LSJ I ISSUE 22 I MAY 2016
PRASHANT KUMAR, 46 Prashant Kumar is the President of LawAsia. He is a life member of the Bar Association of India and the Supreme Court Bar Association and also heads boutique law firm KPA Legal in New Delhi. He speaks to KATE ALLMAN .
Where did your legal career begin? I was born and brought up in Delhi and studied law at Delhi University. I entered law after a brief stint in legislature working with the Parliament Secretariat. I found there is nothing like being an independent legal professional where you can give expression to your pursuits in a much more robust manner than serving an organisation. What’s it like being a lawyer in India? In India, lawyers and activism of lawyers through the court system are very important facets of how the country is governed. Courts have laid law and helped to fill gaps in government and public issues. Lawyers play a major role in strengthening and implementing what you may term the “social contract” of law, which often gets lost in competitive politics. Of course you have to earn your bread and butter, but you can also play a role in strengthening rule of law and the development of democracy that is more meaningful than aesthetic professional achievements. Why is LawAsia important to the international legal community? If you look at how the international legal community is developing, over past years the business aspect of law has become overpowering. LawAsia, conversely, still maintains rule of law concerns and freedom of the Bar and judiciary at its core. This is so important in Asia because the democracy template is still developing – it is not stabilised like in Europe where such things are taken for granted. We also emphasise that regional organisations might have better access and better standing with hostile legal regimes in Asia than the West. Such regimes are often unreceptive to Western or European and American discourse on human rights and democracy. The 2016 LawAsia conference will be held in Colombo, Sri Lanka. Why there? During the recent civil war that only officially ended in 2013, Sri Lanka underwent a rough phase from a rule of law point of view and independence of the judiciary point of view. LawAsia stood by the Sri Lankan legal profession during this time and there’s now wide acknowledgement of LawAsia within the Sri Lankan legal community. We wanted to showcase to the world how a local legal profession can engage with, and be empowered by, international bodies like LawAsia to fight battles in their own jurisdictions.
ISSUE 22 I MAY 2016 I LSJ 17
mind your ethics
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
For the full round-up of Law Society advocacy, see page 68.
CTP reforms Submissions in response to the Minister’s discussion paper are due on 6 May. The Law Society is preparing its submission. The Minister held a roundtable meeting with lawyers and insurers on 23 March and the Law Society was represented. Before the roundtable, a joint proposal by the Law Society, Bar Association and ALA was forwarded to the Minister for his consideration . The incarcerationof juvenileswithout a meaningful prospect of release The Human Rights Committee prepared a submission to the Attorney-General on the incarceration of juveniles without meaningful prospect of release. This related to the UN Human Rights Committee’s finding that Australia is in breach of the rights of Bronson Blessington and Matthew Elliott, and requiring Australia to review its legislation in this respect. The submission asked the Attorney-General to review and amend the legislation for human rights compliance. Inquiry intodomestic violence andgender inequality The Family Issues and Indigenous Issues Committees provided a submission to the Senate Inquiry into Domestic Violence and Gender Inequality. The Law Society generally supported the view that gender inequalities have a profound effect on violence against women and their children, but noted that in the context of Indigenous people, the drivers of family violence are complex and intersectional and gender inequality is one of a number of issues that require attention. The Elder Law and Succession Committee provided a submission to the Senate Inquiry into the Future of Australia’s Aged Care Sector Workforce. The Law Society focused on the lack of geriatricians in rural towns and remote communities to undertake a cognitive capacity assessment. The lack of medical professionals with the requisite skills and experience to undertake cognitive capacity assessments is of concern as it directly affects the ability of an older person to enter into legal and financial arrangements. The futureof Australia’s agedcare sectorworkforce
BY LINDEN BARNES , SENIOR ETHICS SOLICITOR LAW SOCIETY OF NSW
Our members often get in touch with questions relating to professional courtesy. The Ethics Department often is asked these questions. And where we start our guidance is, of course, with the Conduct Rules. Rule 4.1.2 requires us to “be honest and courteous in all dealings in the course of legal practice”. Q. Do I have to reply to correspondence? A. Solicitors should generally reply to all correspondence in some way, even just a “read receipt” type of response. If we are being harassed with trivial correspondence, then it may be appropriate to set response parameters. However, we must ensure it is clear whether we are still acting. Q. Can I wait a few days before replying? A. Appropriate response times do vary, depending on the urgency of the situation, so this is a proverbial piece of string length. It might help everyone to set the tone for responses by our response time. Q. The sender demands a response within a day. Do I have to comply? A. If the sender has no proper grounds to demand a response time, then this sort of demand can put quite a negative tone on the correspondence. It could even be a breach of Rule 34.1.1, making a “statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person”. Q. Can I tell the sender exactly what I think of them? A.Telling someone what we really think of them is probably one of those times when we should pause and have a calming walk/milkshake/call to the Ethics Department.
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MEMBERS ON THE
TIFFANYTALESKI Joined as In-House Corporate Lawyer Avant Mutual Group
MATTHEWTHOMASWILLIAMS Appointed to Associate, Liquor Licensing and Debt Recovery DPH Lawyers
LEE-ANNEDIMMOCK Joined as Partner McDonald Johnson Lawyers
ANDREWFERGUSON Joined as Partner McDonald Johnson Lawyers
BERNARDTAN Joined as Principal Keypoint Law, Sydney
PHILLIPSALEM Appointed to National Managing Partner Sparke Helmore, Sydney
ALANWRIGHT Joined as Senior Associate, Family Law Team Catherine Henry Partners, Newcastle
SALLYTORGOMAN Joined as Senior Associate Allion Legal, Sydney
COLINDAVIDSON Joined as Principal Keypoint Law, Sydney
JULIACANTARELLA Joined as Associate Yeldham Price O’Brien Lusk
CHRISTINAVALENTINE Joined as Special Counsel, Construction & Infrastructure Team Holding Redlich, Sydney
VI-KYLAM Appointed to Partner, Corporate Group Sparke Helmore, Sydney
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Briefs OUT AND ABOUT
LAWSOCIETYLAUNCHESPEERNETWORKINGPROGRAM The Law Society’s inaugural Wednesday Connexions peer networking event was a booked-out success, with members enjoying an exclusive wine tasting with Member Connexions partner Langton’s. The next event will be held on 15 June. To book, visit lawsociety.com.au/wedconnex PHOTOGRAPHY: JASON McCORMACK
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Briefs HOT TOPIC
The rise and rise of non-violent direct action
Much can be achieved by protesting peacefully, writes ELIZA GINNIVAN , and lawyers have a very special role to play in making it happen.
I t’s 1995 and I’m standing Maclellan, is dining. If he has his way, our sprawling, rural alpine shire will be forced to amalgamate with the neighbouring council of Wodonga. This is an administrative undertaking my 10-year-old brain doesn’t fully grasp, but I think Wodonga is ugly and that’s reason enough for me. I didn’t know it at the time, but on that night I took my place alongside Gandhi and Martin Luther King, other practitioners of NVDA who have used this strategy to empower direct participation in the political process. NVDA is experiencing a resurgence in Australia, attracting law-abiding citizens compelled by conscience or outside an Italian restaurant in north-east Victoria, singing an Australianised version of Woody Guthrie’s ‘This Land Is My Land’ and engaging in my first act of non-violent direct action (NVDA). Inside, the Minister for Planning, Robert
process and working with police and penalties help people understand what they’re getting into – that a trespass conviction won’t land you in jail, but that bail conditions may complicate your upcoming international trip. Do the workshops frighten people? At the end, is she just looking at a room of empty chairs? “Some people definitely make a decision that it’s not right for them,” she says. “But I don’t think that being well-informed scares people off. I think it helps people better deal with situations so that things don’t escalate when they’re dealing with police, and so they’re actively planning what they’re doing and considering the legal aspects of protest.” Avoiding an accidental arrest is a goal of Activist Rights, a collaborative online resource base that aims to empower people to protest with full awareness of the consequences of their decisions. Despite its Victorian-specific content, it’s used by activists, lawyers and legal support teams from Darwin to Dubbo,
called by a higher power to obstruct businesses and occupy electoral offices. As this form of protest relies on getting in the way of business as usual, the line between legal and illegal conduct can be blurry. Before, during and after the event, specialist lawyers are helping NVDA participants understand their rights, manage risks and navigate the legal system – in this way, contributing to the legitimate right of peaceful protest. Making an informed choice on the basis of accurate information is key to participating in NVDA, according to Kate Davis, Principal Solicitor at Tenancy WA and the Australian Greens candidate for Freemantle, who volunteers with community activists. Davis started running activist legal education workshops after realising community members were often unaware of their rights when protesting, uncertain of the repercussions of their actions and fearful of dealing with police. Her workshops on the court
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notching up more than 100,000 hits per year. Meghan Fitzgerald, Principal Solicitor and Social Action, Policy & Law Reform Manager at Fitzroy Legal Service (FLS), that hosts Activist Rights, says underlying the website is the belief that empowering people to engage in visible activism is fundamental to a functioning democratic society. The website provides easy access to accurate legal information, making it a useful tool for protesters on the front line. It’s assisting the Homeless Persons Union during its occupation of an empty house in inner-city Melbourne to draw attention to public housing shortages. As well as receiving upfront advice from FLS, the protesters inside can search the website for information via their phones in response to the changing circumstances of the occupation, putting the power in their hands. Access to justice is the driving motivator for Kira Levin, a criminal law expert at the Environmental Defender’s Office NSW. Levin coordinates a community-funded legal service for environmental activists facing charges arising out of NVDA. The epicentre of her work is the Whitehaven Coal Maules Creek mine in north-west NSW. Once a month, she beats a well-trodden path to the Narrabri Local Court where she represents 20 to 30 clients at each sitting on charges of hindrance, trespass or obstruction, in most cases seeking a Section 10 non-conviction order. While the court process looks the same from a procedural point of view, NVDA matters are a far cry from Levin’s former criminal practice. Her clients include scientists, academics, farmers, Aboriginal traditional landowners and members of the clergy. About 86 per cent are first-time offenders. Some voluntarily break the law on the basis of their beliefs. Few claim to be victims of their
circumstances. Often her clients are daunted by the prospect of court when their hearing date rolls around. For Levin, assisting them during this time is the favourite part of her role. “I enjoy supporting people through that process and providing them with as much information as I can, so they can decide what to do and be informed about how the system works,” she says. For lawyers who know how the system works, can we roll up our sleeves and get involved in NVDA? Although a snow-white rap sheet isn’t a precondition to practice, the reputational and professional consequences of arrest and conviction mean even the most passionate advocates decide to avoid it altogether. But thanks to our unique skillset, lawyers can often add more value to causes in an educational or advisory
capacity. Our ethical obligations mean we can’t help someone break the law, so caution is needed when dealing with clients considering NVDA. But general legal information can help participants plan a safe action, understand the role of the police, and know the limits of the law so the point of the protest is not derailed by escalating tensions. With the Baird Government’s anti-protest laws designed to crack down on certain forms of NVDA, the stakes are getting higher. Anecdotal evidence suggests this is unlikely to deter protesters motivated by their beliefs, and history has shown NVDA works. At the election after my first protest, the government was thrown out, in part due to a backlash against its council amalgamation policy. Just like peaceful protests, an example of a democratic society at its finest.
We specialise in agency appearances for all Sydney CBD courts and tribunals To obtain our services or for more information call (02) 9239 0555 or visit www.sydneymentions.com.au No time for city court appearances? “Don’t mention it...we will.”
Eliza Ginnivan is a lawyer and the Executive Officer of the Grata Fund, a not-for-profit public by grassroots campaigning organisation GetUp which is now an independent charity. gratafund.org.au interest litigation fund established
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