LSJ - May 2017
HOLLY RANSOM AND BERNARD SALT TACKLE THE THORNY ISSUE OF GEN Y IN THE WORKPLACE THEGREAT MILLENNIALDEBATE
HELLODRIVERLESSCARS CAN THE LAW KEEP PACE WITH RAPID TECHNOLOGICAL ADVANCEMENTS?
FROMWALL STREET TOPROBONO A DAY IN THE LIFE OF NERIDA HARVEY WHYGOODFOOD IS BRAINFOOD HOW DIET DRIVES MENTAL HEALTH CHILDRENANDTHE FAMILYCOURT IS IT TIME FOR DRAMATIC REFORM? AHISTORYOF FAILEDREFERENDUMS WHY CONSTITUTIONAL CHANGE IS HARD
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26 INFOCUS The International Bar
52 EXTRACURRICULAR Jane Southward meets a Paralympic cyclist who has his sights set on Tokyo 54 HEALTH Dietician Joanna McMillan recommends the best foods to boost your mental health 58 LUXURYTRAVEL Kate Allman tests out a swanky Canadian ski resort and tours the buzzing capital of Vancouver
Family law expert Professor Patrick Parkinson AM calls for urgent reform of our legal system 40 FEATURE Denise Cullen reports why driverless cars will have major implications for liability on the road 44 CAREERCOACH Do you really want to be partner? Careers expert Fiona Craig weighs up the pros and cons of the path to partnership
Association is using the law to improve lives around the world. Learn more as the IBA prepares to convene in Sydney 28 HOTTOPIC Nicholas Cowdery QC argues the case for legalising voluntary assisted dying 30 COVERSTORY Love them or hate them, your firm needs millennials. Kate Allman asks Bernard Salt and Holly Ransom why
ISSUE 33 I MAY 2017 I LSJ 3
8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 16 MEMBERSON THEMOVE 21 EXPERTWITLESS 21 THE LSJ QUIZ 22 OUTANDABOUT
68 ADVOCACY: THE LATEST IN LAW REFORM
50 ADAY INTHELIFE The Law Society’s
71 CIVIL: UNION RECALCITRANCE & CIVIL PENALTIES
head of Pro Bono and Community Services, Nerida Harvey, shares her career story from Wall Street to Sydney
74 RISK: COMPLIANCEWITHNEWPRIVACY REGIME
76 CONSTITUTIONALREFORM: REFERENDUM LESSONS
78 INSOLVENCY: LIQUIDATOR’S REMUNERATION
How to create and keep healthy habits
80 DISCRIMINATION: PARTICIPATION OF DEAF JURORS
82 NEGLIGENCE: HIGHCOURT ON ADVOCATES’ IMMUNITY
The test for when you’re too sick to train 61 LIBRARYADDITIONS 64 LIFESTYLE Book reviews, events and our movie giveaway 66 NON-BILLABLES Hockey player Amelia Crawford 106 AVIDFORSCANDAL
The Law and Justice Foundation turns 50 and the launch of the Law Society’s flip report
84 EMPLOYMENT: INTERN OR EMPLOYEE ?
86 TAXATION: SUCCESSION PLANNING
87 EQUITY: CONFLICTS OF INTEREST
46 CAREER101 48 DOINGBUSINESS
88 PRIVILEGE: PROTECTING INTERNAL INVESTIGATIONS
Lawyer James Reid shares fashion tips for “country chic” office style
90 CORPORATE : OFFSHORE TAX HAVENS
93 CASENOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS
4 LSJ I ISSUE 33 I MAY 2017
UNLEASH YOUR INNER ARTIST by entering the Law Society’s Just Art or Just Music competitions. Finalistswill be showcased in September to raise money for the President’s 2017 Charity Bara Barang. Entries close 31 July.
ONLINE ENTRIES OPEN 1 MAY
A WORD FROM THEEDITOR
is edition of LSJ raises some pretty hot issues. Our cover story on page 30 jumps headlong into the ever- present Baby Boomer versus Millennial debate; Nicholas Cowdery tackles the voluntary assisted dying issue on page 28; and Professor Patrick Parkinson expresses some strong and controversial views on marriage and children in the family law system on page 36. As per usual, we’re looking forward to reading your letters in response to these and other articles. It remains to be seen whether any of the articles will touch a nerve
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer
like that which appeared on page 28 of April LSJ titled, “I am not a resource. I am a human being”. e article, sent to us by an anonymous senior associate in a top-tier rm, caused a storm on LinkedIn and is one of our highest-ranking posts across all social media channels. Quite clearly, many people could relate to the notion that many commercial law rms regard their sta as money-making resources rather than talented human beings. It’s essential reading for any law rm partner, and certainly creates food for thought. Finally, for those artistic and musical lawyers out there (and we know there are many of you!), the time has come to enter the 2017 President’s Charity competitions, Just Art and Just Music. It’s a great chance to showcase your talent and raise funds for a fantastic organisation, Bara Barang. See more on page 5.
Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
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 © 2017 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
Kate Allman is a journalist who studied law at UNSW. In our cover story, she talks to KPMG demographer Bernard Salt and Holly Ransom, a consultant who specialises in marketing to millennials, about the pros and cons of millennials at work. Cover story p30
Joanna McMillan is a nutritionist, author and expert in the low GI diet. We know that some foods can build physical power, but what about boosting your mental health? McMillan explains key things to add to your diet. Health p54
Matthew White SC is a barrister at Sixth Floor Selborne Wentworth Chambers. He examines Federal Court attempts to ensure “truth in penalties” in the face of the union movement’s open disregard for the rule of law. Civil penalties p71
Nicholas Cowdery AM QC is Visiting Professorial Fellow, UNSW Law, and Former Director of Public Prosecutions, NSW. He tackles the sensitive issue of voluntary assisted dying and argues that it’s time to change the law. Hot topic p28
Cover photograph: Jason McCormack
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 2017
6 LSJ I ISSUE 33 I MAY 2017
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he Law Society is steaming ahead with new initiatives aimed at developing a fairer national asylum policy and reducing Indigenous incarceration rates. We are also continuing to lead efforts to boost critically needed funding for Community Legal Centres (CLCs) across NSW. There is a fairer way to deal with people seeking asylum and we are committed to developing a just solution. This is why we are holding a one-day symposium in September that will bring the country’s top thinkers together, as well as publishing an e-book and launching a short film that will expose asylum seekers experiences within the Australian legal system, investigate the erosion of human rights and the rule of law, and articulate the legal community’s response.
We have congratulated the NSW Government and Attorney-General Mark Speakman SC this month for providing $6 million over two years for the State’s 37 CLCs. This will fill the void caused by the Federal Government’s proposed funding cuts of up to 30 per cent from July. Without the NSW rescue package, many of society’s most vulnerable people would have been left without adequate and timely legal advice and services, including from critical centres such as Redfern, Northern Rivers and Illawarra. CLCs in NSW helped more than 55,000 people last financial year, many of them living below the poverty line. Yet CLCs were forced to turn away around 34,000 people last financial year because of a lack of funding. This has also increased pressures and costs on our courts and police. I am particularly concerned about the effect on access to justice for rural and remote communities and Indigenous people. The Law Society continues to call on the Federal Government to take the lead from NSW and be both compassionate and pragmatic in its future funding. Finally, every key report to date has concluded that self-determination by Indigenous communities is the key to any successful initiative affecting Indigenous people and their rights. Indigenous leaders across Australia have been engaged in a series of Regional Dialogues to seek broad agreement as to whether, if and how constitutional “recognition” should take place. This has culminated in the Uluru Convention taking place in May, the outcomes of which will be taken into account in the Law Society’s contribution for submission to the Referendum Council.
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ISSUE 33 I MAY 2017 I LSJ 9
LETTERS TO THE EDITOR
Credit where credit is due Thank you for the March edition of the LSJ . The very moving and uplifting story of Bianca Amoranto (“Breaking the cycle”) would have been much appreciated by many of your readers. The statement, “I grew up in a normal household” floored me. Since when does a single-parent household, with no father and a brother and raised by a single-parent represent “normal” in our society? The statistics are writ largeby so many that any girl brought up in such a household is expected to experience sex, drugs and alcohol at a far earlier age than any of her peers who experience a close connection with both parents, particularly their father. The increase in male unemployment and suicide shows that many men in Australia are in crisis and this comes back to bite big time on our families, with
the results as happened with Bianca. It is greatly to her credit that she has been able to bring herself back from the abyss, but let us not forget the fundamental cause of where her troubles have come from in the first place. It’s time the LSJ started looking at the issues of men’s lack of engagement with their families. Paddy Curran, Solicitor, Maitland
society. Denis had issued him the invitation to attend the meeting. As President Denis took his seat, the members burst forth with a hearty rendition of the song Solari , a parody on and to the tune of the popular 1950s song Volare . Denis sat muted with an air of resignation until the members ran out of voice. It demonstrated a sense of camaraderie that existed reinforced by members on our table who related that in the short time the society had been in existence, the practitioners in the area had welcomed the spirit of friendship engendered by getting together. They among the members. This perception was
ISSUE32 APRIL2017 LSJ04_Cover_spine_April.indd 1
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ACLIMATEFORDISASTER WHYTREATIESAREN’TENOUGHTOSAVETHE RISINGTIDEOFCLIMATECHANGEREFUGEES
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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: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Peter Poulton has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
Review of articles I was interested to read the letter of Denis Solari’s review of
articles ( LSJ February). Denis played down his major role in fostering the formation of suburban societies. I recall attending a dinner meeting of the St George- Sutherland District Law Society in 1966 with a fellow Burwood practitioner. The latter was interested in forming an inner-west
particularly recognised Denis’s charisma and energy in achieving the great outcome.
Denis threw the pebble in the pond, the ripples from which breached the walls of
10 LSJ I ISSUE 33 I MAY 2017
resistence and thus suburban societies were born. Secondly, readers may find it interesting how a Sri Lankan- born Maithri Panagoda AM, through Carroll & O’Dea, has taken on acting for stolen generation claimants for compensation (“The Stolen Generation: Struggle for justice” LSJ February). I first met Maithri in Dubbo in the early 1980s. He and his wife had settled in Dubbo. Maithri was employed by the Western Aboriginal Legal Service. Maithri and his wife had been lawyers in London but found it difficult to practise there because of racial prejudice. The photo with Maithri’s article shows him possessed of a swarthy complexion. Maithri told me this attribute saved him from harm when a rampaging Aboriginal client of the service ran through its Dubbo building looking to “get whiteys”. He burst into Maithri’s office and stopped in his tracks and uttered, “It’s okay, bro. You are black.” Maithri later joined the ultra- conservative Dubbo legal firm Peacocke, Dickens & Price. The senior partner, the late Gerry Peacocke, was the long-standing National Party member for Dubbo. Derek Price is now Mr Justice Price, Chief judge of the District Court of NSW. Maithri built up a civil practice acting for many Aboriginal clients. He later moved to Sydney with Carroll & O’Dea where he has had a distinguished
career as a civil litigator. Maithri’s association with the Aboriginal community has given him an insight into their culture, needs and aspirations. With his vast experience in compensation law, Maithri is the ideal person to pursue claims for the stolen generation. Peter Poulton, retired solicitor Section 18C Race Discrimination Commissioner Tim Soutphommasane’s essay “Setting the Record Straight” about section 18C of the Racial Discrimination Act ( LSJ February) perpetuates more misconceptions than it dispels. It is true that the Racial Hatred Act 1995 was introduced following the tabling of three government reports in the early 1990s, the recommendations put forward in those reports. Not one of those reports recommended for a civil prohibition on offensive or insulting language. Nor is it appropriate to refer to the current interpretation of 18C as “settled law”. As readers will be aware, the Full Court of the Federal Court or the High Court is not bound by the interpretation of equal or lower courts. Nor is the present interpretation clear. That 18C applies to “profound and serious effects, not to be likened to mere slights” is no less vague than “offend” and “insult”, and doesn’t make but it is not accurate to say section 18C reflects
QUT stopping segregation with segregation …?” For this comment made in May 2013, Wood was subjected to three-and-a-half years of legal drama before the matter was dismissed in the Federal Circuit Court in November 2016. This is an indefensible example of section 18C, which makes its omission from Dr Soutphommasane’s article unsurprising. To the question, “What is it that people want to say, which they can’t already say?”, the answer is that Alex Wood should be able to write Facebook comments critical of his university. Likewise, a cartoonist should be able to draw satirical political cartoons and a church should be able to erect a statue commemorating WWII sex slaves without the threat of legal sanction, as happened to Bill Leak and the Ashfield Uniting Church in the past 12 months alone under section 18C. Dr Southphommasane’s intent was to address the lack of “clear public understanding of how the Act and the AHRC in fact operate”. In fact, opponents of s ection 18C have witnessed how the law operates in a very clear way, and recognise it has no place in a liberal democratic society. Morgan Begg,
any clearer what conduct amounts to “mere slights”, “profound and serious effects” and what falls in the chasm between them. Another level of confusion in the law is the so-called objective test for whether there has been a breach of section 18C, which uses “the reasonable person of the target ethnic or racial group”. Justice Ronald Sackville recently noted in reference to a case which used the subgroup of “young, impressionable, Jewish people faced with Holocaust denial” that “once you get to that kind of level, I think, extraordinarily difficult to apply and will not work.” Section 18D is not a reliable defence for freedom of speech. In 20 years and close to 80 cases being heard in the Federal Courts, the 18D defence has only be accepted three times, and two of those were from the Bropho series of cases. from the outcome of court proceedings, but from the process before a complaint reaches court. This was most glaringly demonstrated in the case against several students at Queensland University of Technology. The complaint was launched after 20-year-old student Alex Wood commented on an unofficial student Facebook page: “Just got kicked out of the unsigned indigenous computer room. in fact, you are dealing with concepts that are The chilling effect of section 18C arises not
Research Fellow at the Institute of Public Affairs
ISSUE 33 I MAY 2017 I LSJ 11
LETTERS TO THE EDITOR (CONTINUED)
own accountant, which was different again. As my accountant was the only one without a vested interest, that was the advice I accepted. However, I’m still not really sure which accountant gave the right answer, or if they were all wrong. Even if a “dummy lease” might be legitimate, it can have other tax implications for the vendor. One vendor client was advised that a lease might, upon sale of the property, deprive him of another tax concession available to him as the long-term owner of a small business, continuously carried on at the same premises. The property in that instance had been purchased pre- CGT, which opened up another lot of questions. The client required very detailed tax advice, which cost a fortune, and resulted in him deciding not to sell at all. He had simply wanted to sell a large commercial property, take some profit, downsize, and carry on his business in smaller premises. However, in his personal circumstances, the tax implications meant that he was significantly better off staying put, in a property far too big for his needs. These transactions mostly concerned the sale or purchase of commercial property by individuals. It all becomes so much more complicated when SMSFs, trusts, companies etc are
Astounded First-time contributor, long- time reader. David Boundy’s letter (March LSJ ) was simply astounding. It beggars belief a fellow legal practitioner could so readily make such an inaccurate public comment by calling it a “Muslim visa ban” and subsequently proceed to rudely label others who do not agree with their views. Saying he was “appalled” and “remained sickened” at the cover of the Dec 2016 LSJ , is so hyperbolic and emotive I honestly had to look up Mr Boundy using the “Find a Lawyer” search to make sure you weren’t just getting in early on an April Fools’ Day prank, you cheeky thing. It appears in large part due to such faux-outrage and hysteria exhibited by Mr Boundy and others nowadays that Mr Trump and Ms Hanson et al have been so successful. Ridiculing and trying to compartmentalise conservative members of
society into a basket of deplorables while claiming members of the opposite view have some sort of infallible monopoly on morality, at least without considering the evidence and the context in which it exists, is just unhelpful if not unbecoming. Mark I Youssef, Accredited Specialist in Family Law and Partner, Taylor & Scott Lawyers Required reading Jim Main’s articles on tax now sit at the back of the magazine, where they could easily be overlooked. I recommend them as required reading, though they always cause me a little queasiness. I’d like to add my own small warning, based on recent experience. Vendors and purchasers, particularly of commercial property, are now determined to avoid payment of GST, at any cost. The problem has become
acute because banks are refusing to lend sufficient funds to cover payment of GST. A purchase price is agreed, a loan is approved. Whoops, the purchaser forgot about the extra 10 per cent needed for GST, or the bank simply refused the extra funds. Surely the bank can be persuaded to give that little bit extra? No, they can’t. Next step: apply pressure to the vendor’s solicitor to make the GST go away. If GST should be paid, because the sale cannot fit into a legitimate exemption, a common suggestion is to create a “dummy lease” and agree to call it a sale of a “going concern”. I’ve received conflicting advice on this practice from accountants. Of course, it depends on individual circumstances. In one matter, the vendor’s accountant and the purchaser’s accountant each gave different advice, so I sought advice from my
12 LSJ I ISSUE 33 I MAY 2017
We don’t want other families to suffer
involved. Obviously, we all need to be very, very careful. My question is: why? Why should the law surrounding GST, CGT, and tax generally, be so di cult, the exemptions so complex and confusing, that accountants can’t give definitive answers, and every party is put at risk with every transaction? As the solicitor for either vendor or purchaser, we are at risk of claims of negligence for not knowing laws that, it appears, nobody really knows.
principal of a practice in a well-to-do suburb of Sydney. During the course of the seminar, the practitioner made it known to our group (and repeated to the floor) that he screens potential clients of his practice based on their ethnic group, because some ethnic groups (in his words) “are dishonest and do not pay their bills”. some ethnicities, he adds a premium to the fees charged. He would not specify the ethnicities in question. I was astounded, to say the least. For a moment, I thought I was caught in a time warp and had drifted back to the 1970s, when ideas such as these were commonplace in some of the schools I attended. Sadly, noone at the seminar challenged this gentleman’s views. How sad if all the progress decades in breaking down the walls of racial prejudice and discrimination should be reversed by the re- emergence of the old guard. Of course, aside from anything else, the implementation of policies like those of this practitioner are unlawful, because they o end section 19 of the Anti- Discrimination Act 1977 (NSW) . Peter Sanfilippo, Solicitor that has been made in Australia in the last few He also said that if he does choose to act for
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Weasel words When announcing Federal Court action against Audi Australia and its parent
companies over the “cheating” software in
their diesel-powered cars, Australian Competition and Consumer Commission Chairman Rod Sims said: “Consumers expect that there is some relationship between the performance of the car as set out in the sales brochure and their day to day on-road use”. Some relationship? That’s setting the bar pretty low for misleading or deceptive conduct. David Grinston Crows Nest
Shocking and sad Recently, I attended a
CPD seminar and sat in a workshop group next to an older practitioner. He was the
CANCER | IMMUNE DISORDERS | INFECTIOUS DISEASE
ISSUE 33 I MAY 2017 I LSJ 13
States holdbreath for Federal Budget asNSWthrows lifeline to Community Legal Centres
Productivity Commission report also found that Federal funding was falling short by about $200 million each year. In NSW, $12 million in funding would be lost over four years if the proposed cuts went ahead. That was until Speakman announced the NSW Government would help fill the void by offering $6 million for the first two years. “Access to justice, particularly for the most disadvantaged, is a priority for me and for the NSW Government,” said Speakman at a press conference at Gosford Local Court on 5 April. “The Federal Government’s decision not to renew a grant to the Community Legal Centres sector put many CLCs at risk of staff cuts and service reductions. This was an unacceptable situation, given the importance of the work CLCs do for disadvantaged individuals and communities. This funding will provide Speakman promised to continue to urge the Federal Government to reconsider the proposed cuts to CLCs. President of the Law Society of NSW Pauline Wright said the extra funding was a welcome boost for the short term, but that ongoing Federal funding was essential for the survival of the sector. “CLCs provide vital services to people, often the most vulnerable in our community, and at times when they are in real legal crisis,” Wright said. “They provide it efficiently and effectively on a shoestring budget. This welcome injection of funding announced by the NSW Attorney-General is sorely needed in the short term but, as the Productivity Commission observed, ongoing Federal funding is essential to the long-term viability of this essential sector.” CLCs with breathing space, while a sustainable, long-term solution is developed.”
Lawyers from community legal centres (CLCs) across Australia have all eyes focused on the upcoming Federal Budget on 3 May with hopes that proposed cuts to national CLC funding will not go ahead. Chair of CLCNSW Linda Tucker said she hoped the Federal Government would follow the lead of NSW Attorney-General Mark Speakman, who in April announced a $6 million funding rescue package for community legal centres in NSW. “This NSW Government funding will put an end to planned staff cuts, service reductions and outreach closures at community legal centres across NSW, ensuring that hundreds of people and communities across NSW won’t lose access to the legal assistance they need,” Tucker said. “We thank the NSW Attorney-General for recognising the essential work done by community legal centres and stepping in to fill this gap.” The NSW funding injection increases the NSW Government’s contribution to CLCs by 50 per cent, which is the largest annual increase from the State Government in two decades. Tucker welcomed Speakman’s announcement on behalf of NSW centres but said increased Commonwealth funding was as important as ever for CLCs. “Now we need the Federal Government to chip in their fair share, so CLCs can meet demand and ensure that everyone has access to justice,” Tucker said. CLCs have been bracing for cuts to Federal funding of about 30 per cent, which would force many centres to shut down some services and plunge the sector into crisis. According to the 2015 National Census Report by the National Association of Community Legal Centres, CLCs were already turning away 160,000 clients a year due to inadequate resources. A 2014
BY KATE ALLMAN
The NSW Attorney-General has announced a $6 million funding rescue package for community legal centres in NSW. Advocates are hoping the Federal Government will follow suit.
NSW Attorney-General Mark Speakman top) and Chair of CLCNSW Linda Tucker.
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Australian Pro Bono Centre CEO John Corker
Lawyers in large firms in Australia have increased their hours of pro bono work by almost 10 per cent from2014 to 2016, according to a study by the Australian Pro Bono Centre. The Fifth National Law Firm Pro Bono Survey collected data from 41 firms in Australia with 50 or more full-time equivalent lawyers and found that lawyers averaged 34.8 hours of pro bono legal work in 2016, compared with 31.7 hours in 2014. The report also noted a rise in pro bono participation rates for the first time since 2010, as the average rate of lawyers undertaking pro bono work increased from 50 per cent in 2014 to 57 per cent in 2016. The average partner participation rate was 46 per cent in 2016, up from 40 per cent in 2014. Despite these encouraging statistics, Chief Executive Officer of the Australian Pro Bono Centre John Corker said there was still room for improvement among firms. “Despite this impressive growth, the performance across the 41 respondent firms is still strikingly uneven, ranging from four hours of pro bono work per lawyer a year to 71 hours,” said Corker. “There is clearly room for a much stronger effort at several firms. “As the pro bono ethos for lawyers stems from an ethical professional responsibility to improve access to justice, it is vital that law firms devote a significant part of their pro bono programs to directly helping individuals.”
Mark Tedeschi AMQC NSWSenior Crown Prosecutor
Our national heroes are often those who can hit, throw, or kick a ball. Surely we can agree to fete a man who achieved so much in creating the freedoms, civil rights, and public institutions that we enjoy today. Plea at the launch of Tedeschi’s book Murder at Myall Creek about Australia’s longest serving Attorney-General John Plunkett.
ISSUE 33 I MAY 2017 I LSJ 15
six minutes with
GUY BETAR PARTNER, SALVOS LEGAL
How did you get involved in IP/IT work? I was always interested in creative endeavours, IP and IT seemed to offer that. Obviously it was a bit simpler when I started; technology keeps advancing at ever- accelerating rates, making it very difficult for the legal system to keep up. IT used to be a speciality but now it is a necessity in the commercial sphere. Is working at Salvos quite different than working for a software company? Naturally they are very different environments, but businesses have similar commercial elements and need to be driven by similar fundamental principles. However, Salvos is really unique. The outcomes here are built around a humanitarian basis [as a social enterprise law firm, all profits fund Salvos Legal Humanitarian, which provides free legal services to people in need].My main focus is to enable the firm to develop a commercial IP and IT practice to increase its commercial work base. How important is communication in today’s legal environment? As lawyers, our goal is to assist our clients, which means that written and verbal communication is really important. It can make a profound difference in how people perceive and respond to you. Unfortunately, skills in public speaking seem to be diminishing. In my view, talking to anyone is “public speaking” – whether in a meeting in your office or to an audience of hundreds, and consequently speaking well is an essential skill. Written communication is equally important. Take email, for example. People spend a Salvos Legal, he was a senior legal counsel for TIBCO, a Silicon Valley- based software company, a partner with Sparke Helmore and served as corporate counsel with global IT/IP responsibilities for other corporations. Guy Betar joined Salvos Legal as special counsel in 2015 to drive a new intellectual property, technology and privacy focus. In March 2017, he was promoted to partner. Before joining
lot of effort drafting letters but do not give the same consideration to the importance of emails, which are just as much “legal” in nature as formal letters. In your spare time you play guitar, compose music and even have written about legal topics for musicians. What’s the connection? Music is good for the soul and it gives me a lot of personal satisfaction to play, write and record music. I started playing guitar in my teens. In terms of the music industry, it is full of struggling musicians and composers – in earlier years I wrote some music- related columns, trying to help others with the legal aspects of the business, and gave time to helping musicians with their business and legal affairs What is the biggest challenge to the legal profession today? For the legal profession, the charging mechanism is an anachronism. Clients struggle to see value; they want to know, “What do we get for our money?” It is often difficult to show value through charging for very small blocks of time. I am sure the smarter firms (including Salvos Legal) will work out a way to deal with it and come up with a model that works; there won’t be just one answer or one solution.
What’s the best thing about the law? The law is an essential ingredient in most
communities; it helps underpin the standard premise of civilisation. Trying to bring about what the law can be and do is very rewarding, although it can also be very frustrating.
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mind your ethics
Q&AWITH PAULMONAGHAN , SENIOR ETHICS SOLICITOR
Q: An elderly client wants me to draft an amended will but in our conversation she seemed confused and her attention was wandering. Can I still draft the will? A: The capacity to instruct underpins all solicitor-client relationships. A solicitor must not act if they are not reasonably satisfied that the client has the mental capacity to give instructions (see Goddard Elliot (a firm) v. Fritsch  VSC 87). The Law Society has issued detailed guidelines on how to manage such situations ( lawsociety.com.au/cs/groups/ public/documents/internetcontent/023880.pdf) . Q: What constitutes informed consent? A: With rare exceptions, a solicitor owes a fiduciary obligation to the client. The solicitor is under an obligation not to promote the solicitor’s “personal interests by making or pursuing a gain in circumstances in which there is ‘a conflict or a real or substantial possibility of a conflict’ between personal
interests of the solicitor and those to whom the duty is owed, unless the client gives informed consent to the solicitor’s actions”. The requirements for informed consent will depend on the circumstances of each case but the following are usually important ingredients: 21.1 the client must have the appropriate knowledge; 21.2 complete information must be provided; 21.3 the information must be provided to the client; 21.4 some persons can’t give consent; 21.5 there is no need to state the obvious; 21.6 the onus of establishing informed consent resides with the solicitor. For more on this topic, visit lawsociety.com.au/cs/groups/ public/documents/internetcostguidebook/1093508.pdf
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S P E C I A L I S T L E G A L C O N F E R E N C E S
Novotel Sydney Manly Pacific
Wills & Estates and Estate Planning (13-14 May) Business and Property Law and Personal Injury (26-27 May) Family Law and Dispute Resolution Practice (2-3 June)
Register online at WWW . C O L L AW . E D U . A U / S L C 2 0 1 7
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GOLDENGAVEL2017 SMASHEDAVO ANDROAST Young lawyers who have been locked out of the housing market and practitioners of all ages can still lock in a morning of breakfast The 2017 Golden Gavel will be held at The Westin in Sydney and promises a morning of droll entertainment as well as a tasty breakfast. Each year the much-anticipated public speaking competition invites 10 members of NSW Young Lawyers (lawyers under 36 or in their first five years of practice) to speak on different topics, which they receive via email just 24 hours before the event. Jokes about Trump, Mexican walls, Turnbull and Abbott featured heavily in the speeches of 2016. Given the global political climate, the 2017 Gavel promises great things. This year’s Gavel will be highly interactive with live voting for audience members to decide on the winner of the People’s Choice Award. The overall winner of the NSW Golden Gavel will compete in the national competition later in the year. You can purchase a single ticket or book a table of 10 for a discount. Tickets are selling fast so register now for a seat at one of the few remaining tables. Go to lawsociety.com.au/ goldengavel and visit the NSW Young Lawyers Facebook page comedy with NSW Young Lawyers on 19 May.
HAYLEYRAKE Joined as a Partner Mallinson + Rake Lawyers
DAMONHALL Appointed as a consultant HPL Law Group, Freshwater
DRTERESA NICOLETTI Joined as a Partner, IP Mills Oakley
JAMESLAWRENCE Joined as a Partner, IP Mills Oakley
ANIKAFLEET Promoted to Director WMD Law
MATTHEWCOULTER Promoted to Associate WMD Law
AMANDADORING Promoted to Director WMD Law
LISAO’LEARY Promoted to Director WMD Law
JOSEPHSCARCELLA Joined as a Partner Johnson Winter & Slattery
KEIRAN BRECKENRIDGE Appointed as Special Counsel McInnes Wilson Lawyers
BRADMALLINSON Joined as a Partner Mallinson + Rake Lawyers
JEMAYABARLOW Joined as Special Counsel Johnson Winter & Slattery
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
for more information. lawsociety.com.au/ goldengavel
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CELEBRATION LAWANDJUSTICEFOUNDATION MARKS50-YEARANNIVERSARY
More than 90 prominent lawyers, politicians and members of the judiciary gathered at the Law Society of NSW to celebrate 50 years of the Law and Justice Foundation NSW inMarch. The Foundation was founded in 1967 by the Law Society of NSW as an independent body that sought to identify the legal needs of the community and act to address them. On the Foundation’s 50-year anniversary, the Law Society of NSW hosted guests including NSW Attorney-General Mark Speakman, the Governor of NSW David Hurley, Chair of the Law and Justice Foundation Paul Stein, and Judges Margaret Beazley and Terry Sheahan, at a cocktail party to celebrate the Foundation’s successes in breaking down barriers in the justice system. President of the Law Society of NSW Pauline Wright served as a Board member of the Foundation between 2000 and 2007, and gave the keynote address at the event. “Were it not for the vision of the lawyers in the
Law Society President Pauline Wright speaks at the 50-year celebrations.
1960s, the people of NSW would not have benefited from the Foundation’s important work,” Wright said. NSW Attorney-General Mark Speakman also gave an address that reflected on the significance of the Foundation’s 2012 Legal Australia-Wide (LAW) Survey. This was the largest national legal needs survey of its kind conducted anywhere in the world. “Thanks to the ground-breaking evidence provided by the LAW Survey, we know many in our community face big barriers when they need the justice system,” Speakman said. “The Foundation has been at the forefront of knocking down these barriers, especially for the socially and economically disadvantaged. For these tireless efforts, I thank everyone who’s worked with the Foundation over the years, many of whom are here tonight.”
THERAPYDOGSOFFERA COMFORTINGPAWINCOURT Social media went wild last month over photos of a furry new addition to the team at Manly court. Therapy dog Hugo Cavoodle (pictured) debuted on Twitter in a post by the Department of Justice saying, “Meet Judge Hugo Cavoodle delivering paw and order at #Manly Local Court”. The tweet was liked 58 times and prompted a wave of pet puns from followers of the Department. “Round of a-paws,” quipped Sydney Morning Herald court reporter Michaela Whitbourn. Hugo is the first therapy dog to be trialled in a new initiative by the NSW Attorney-General’s Department with the assistance of Delta Therapy Dogs Australia, to help children and vulnerable victims feel more at ease as they navigate the court system. The six-month trial began in Manly Local Court on 27 April, with two therapy dogs lending a floppy ear and friendly paw to victims suffering the stress and anxiety of appearing in court. “Research shows having a dog to talk to and pat can calm people who are feeling scared and nervous, a phenomenon referred to as the ‘pet effect’,” said Attorney- General Mark Speakman. “It’s a wonderful initiative. The success of the trial here at Manly will determine whether the program will roll out across the state.”
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On 27 March 2017 pursuant to s.327(2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, Solicitor, as manager of the law practice known Allan Scriven for a period of two (2) years from 27 March 2017. On 28 March 2017, the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Tereze Vilhelmina Dzitars be removed from the roll of legal practitioners and that he pay the Society’s costs as agreed or assessed. On 21 March 2017, the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Christopher Francis Curran be removed from the roll of legal practitioners and that he pay the Society’s costs as agreed or assessed. On 17 March 2017, the NSW Civil and Administrative Tribunal, Occupational Division found John Donald Weller (“the respondent”) guilty of professional misconduct. The respondent was reprimanded and ordered to pay the Society’s costs, as agreed or assessed. On 30 March 2017, the High Court of Australia - Michael Anthony Griffin v Council of the Law Society of NSW  HCASL 69 S15/2017 - dismissed an application by a Solicitor for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales - Griffin v The Council of the Law Society of New South Wales  NSWCA 364 - (Sackville AJA, Ward and Gleeson JJA agreeing) . The Court of Appeal had earlier dismissed an appeal from a decision of the NSW Civil and Administrative Tribunal of New South Wales – Council of the Law Society of NSW v Griffin  NSWCATOD 40 – finding that the Solicitor was guilty of professional misconduct and that he should, in part, be reprimanded and undergo (and successfully complete) a course in Legal Ethics. The High Court held that the Court of Appeal was correct in holding that the imposition of disciplinary sanctions on a legal practitioner who improperly makes allegations that a judge has misconducted himself in a particular case does not burden the implied constitutional freedom of political communication.
For the full round-up of Law Society advocacy, see page 68.
Submissionon serious vilification laws inNSW
The Human Rights and Criminal Law Committees provided a submission to the Department of Justice on serious vilification laws in NSW, indicating that the Law Society is not opposed to considering alternative definitions to “incite” in the legislation as long as the alternatives do not further add to current uncertainty around the application of the offence. It also supported limiting the offence to intentional acts only and extending it to include “religious belief or affiliation” or “ethnic or ethno-religious origin”. Urgent reviewof resourcing in the FamilyCourt of Australia and Federal Circuit Courts The Law Society and Bar Association wrote to the Prime Minister outlining concerns about the impact of delays in family law matters in both courts and an urgent need for additional judicial and other resources. Social impact investing The Business Law Committee made a submission to Treasury discussing the main regulatory barriers to the growth of social impact investing in Australia. qualifications imposed on entities act as constraints and increase cost and it may be worth providing a purpose-built legal entity with a template constitution, automatic tax qualification and simplified reporting to make social justice investment entities easier to set up and encourage participation by less wealthy investors. The submission notes that the legal obligations and tax
APPREHENDED DOMESTIC VIOLENCE ORDERS
20 % 24,458
final orders were made between July 2013 and June 2014
of final orders were breached between July 2013 and June 2014
Source: NSW Bureau of Crime Statistics and Research
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Cross-examination Test your legal knowledge ...
1. According to the Road Rules Act 2014 (NSW), what is the maximum fine for crossing a road at pedestrian lights after the pedestrian light has turned red? 2. People who apply for Legal Aid assistance in NSW must pass a means test which includes an income test. What is the maximum weekly income an applicant can earn to qualify for Legal Aid? 3. According to data released by the Australian Bureau of Statistics 2016 Census, describe the “typical” Australian? 4. Under the Fair Work Act 2009 (Cth), how many employees constitute a “small business” in Australia? 5. In what year did the Australian dollar replace the pound sterling, removing the pound from circulation in Australia? 6. At what age are elderly drivers in NSW required to undertake a practical driving test? 7. How long can police in NSW keep you under arrest with no charge, when they don’t suspect you have been involved with terrorism? 8. Under the Local Court Rules 2009 (NSW), are witnesses allowed to give evidence via telephone or audio-visual link in NSW local courts? child born in NSW via a surrogacy arrangement? 10. Commercial surrogacy is legal in NSW. True or false? Answers on page 65. 9. Who is the legal mother of a
Two shades of assault Themother of a New Zealand defendant has been charged with assault for hurling her sunglasses at a judge when she disagreed with his verdict. RollonFriday.com has reported that Tania Robinson caused the spectacle when she was attending her son’s bail application in Dunedin District Court. Presiding Judge Kevin Phillips refused the son bail, sending Robinson into a rage in the public gallery. Robinson reportedly leapt out of her seat and shouted expletives as she hurled the shades at Judge Phillips. Although she botched the throw and missed by about a metre, a police officer arrested Robinson and she appeared in the same court later that day on assault charges. Robinson also lashed out and struck her son’s lawyer, earning a second assault charge. Her hearing was adjourned in order for Robinson to attend a restorative justice meeting with the victims. District Court Judge Matthew Dicker heard the case in April and found this amounted to unlawful arrest because police had no plans to charge him with an offence. The Judge awarded Raad $20,000 for false imprisonment. Judge sacked for online trolling It’s one of themost sacrosanct principles of the justice system– the rule that no judge or juror should talk about or post on social media regarding legal cases they are adjudicating. Yet one British judge tried to get around this rule by using an alias to post abusive comments online about cases with which he was involved. BBC News has reported that Judge Jason Dunn-Shaw of Canterbury Crown Court in Kent trolled readers in the comments section of the website KentOnline, calling users “donkeys”, “stupid”, “narrow-minded” and “bigoted”. “Are you too stupid to make a sensible comment?” one of his taunts read. When Dunn-Shaw’s cover was blown by a suspicious victimwho complained to the Judicial Conduct Investigations office, Dunn-Shaw tried to blame his partner for the comments, claiming they shared an account. Dunn-Shaw was removed from judicial office in April but has vowed to appeal the dismissal. Sydneymanbooted frompub; wins $20,000 indamages Not all heroes wear capes. One Sydney man who was kicked out of a pub for allegedly acting “drunk” after one beer has stood up for all the sober dudes who have experienced the same unfair treatment. The Sydney Morning Herald has reported that Johnny Raad, 46, was with his wife at the Albion Hotel in Parramatta when a security guard ordered him to leave because he was “intoxicated”. Raad had only drunk one glass of Victoria Bitter and had just purchased a second when he was ejected from the bar. When Raad complained to police at the pub that the security guard had assaulted him, police arrested Raad and held him at Parramatta Police Station for two hours.
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