At the coalface of misery Insights from an Australian lawyer assisting in a Rohingya refugee camp No justice for the poor Can Australia learn from a damning report into the UK’s legal aid system? Bravado versus humility Why the legal profession’s best leaders choose understatement over arrogance A newera in privacy law Preparing clients for the General Data Protection Regulation privacy reforms
ISSUE 44 MAY 2018
Emojisunder thespotlight Are our courts equipped to properly interpret the new global language?
PLUS: JANE SANDERS, CAROLYN SIMPSON, ANNABELLE BENNETT & MORE
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26 Hot topic
40 Lessons from the UK
48 A day in the life
Former Justice Carolyn Simpson looks back on her career with a message for aspiring lawyers
Julie McCrossin investigates the lessons for Australia from the UK’s review of cuts to the nation’s legal services
Former Justice Annabelle Bennett tells Jane Southward about her post-bench priorities, including her new government role
28 In focus
51 Career coach
Why Australia’s consumer laws aren’t adequately protecting Australians who buy digital products
Bad news for a colleague? How to give negative feedback with a positive result, plus the power of two-way mentoring
Fiona Craig oers some sound advice on why how you feel on Mondays can signal whether it’s time for a change
30 Cover story
Kate Allman reports on how Australian courts are dealing with the use of emojis as a form of communication at work and play 36 Workingwith the Rohingya Sydney lawyer Michelle Sanson reports from Bangladesh
Why humility is a skill worth developing – and how to find the confidence to be a humble leader
The surprising benefits of fibre for managing inflammation, cholesterol and more
The best of San Diego, plus a winter wonderland worth your time
ISSUE 44 I MAY 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 LSJ quiz 24 Out and about 35 Library additions 44 Careers 50 Doing business 52 Extracurricular 56 Fitness 64 Lifestyle 66 The case that changedme 106 Avid for scandal
The Law Society’s policy experts bring you up to date with the latest in law reform
Australia’s first “Super Union” is born. How did it come about and what will it mean? Our expert weighs in
2018 Timor Sea Treaty: a new dawn in relations between Australia and Timor-Leste?
The pros and cons of suing for the recovery of professional costs
Emails: why you need to adopt a less trusting and more critical mindset
Post - sentence detention and protecting the community under the Terrorism (High Risk O enders) Act
What the EU data protection reforms will mean for your Australian clients
Slander of title and the battle of the battle-axe block
78 Wills and estates
90 Case notes
The dilemma of archaic legal language: a more enlightened look at “insane delusion” and testamentary capacity
HCA, FCA, Criminal law, Family law and WIlls & Estates – our dedicated contributors have the significant cases covered
4 LSJ I ISSUE 44 I MAY 2018
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A word from the editor
Even if you’re not one to use emojis in your day-to-day communications, Kate Allman’s cover story on page 30, “When is an eggplant not an eggplant?”, is an important story for any lawyer involved in cases that might require deciphering the meaning of communications being used as evidence in legal proceedings. ere is no doubt that emojis represent a new and pervasive global language, with research estimating
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer
that 92 per cent of online users employ emojis in their digital communications. As Allman’s article points out, the way that courts interpet the meanings attached to emojis and the contexts in which they are used can be troublesome – but emoji interpretation is an increasingly frequent necessity. A world away from this conversation is Sydney human rights lawyer Michelle Sanson, who writes about her experience working in a Rohingya refugee camp in Bangladesh. Her article on page 36, “At the coalface of a refugee crisis”, is a moving and somewhat distressing account of life for the hundreds of thousands of Rohingya who have ed persecution in Myanmar. It is also a stark reminder that things could always be worse, and that gratitude for our privileged position in this world should always be front of mind. Finally, if you haven’t already checked out the new Law Society website, I urge you to do so. We would love to hear your feedback at email@example.com.
MICHELLE SANSON Refugees p36 Michelle is a Sydney human rights lawyer and reports from Bangladesh on the legal and humanitarian eorts for Rohingya refugees who have crossed the border from Myanmar. They have been called the world’s most persecuted people.
JULIE MCCROSSIN Legal aid p40 Julie studied law and works as a journalist, broadcaster and facilitator. She reports on lessons for Australia from the UK’s Bach Commission recommendation for drastic action to restore the nation’s failing legal aid system.
DONALD ROTHWELL International p70 Professor Donald Rothwell, ANU, is one of Australia’s leading ex- perts in international law. He examines the recent 2018 Timor Sea Treaty and the delicate matters of oil and gas revenues, maritime borders, and Australia/Timor-Leste relations.
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Kate studied law at UNSW and works as a journalist. She reports on whether Australian courts are equipped to interpret the meanings of emojis in legal cases, from criminal threats to contractual issues and even free speech arguments.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
Cover design: Andy Raubinger
NEXT ISSUE: 1 JUNE 2018
6 LSJ I ISSUE 44 I MAY 2018
7 th LAWASIA Family Law& Children's Rights Conference
Family Law: Realities, Expectations andHope 6–8 June 2018 | Vientiane, Laos Register nowat lawasia.asn.au/familylaw2018.html
ISSUE 44 I MAY 2018 I LSJ 7
T he upcoming Federal and NSW budgets provide an opportunity for legal aid to be provided su cient resources to ful l their critical function. ousands of people in need are being turned away from legal assistance services and private practitioners doing legal aid work simply cannot ll the gap in demand. Without an immediate increase in resources, we can expect the overall cost of the justice system to increase. Our hybrid legal aid system, which relies on the combined e orts of Legal Aid NSW, Aboriginal Legal Services, community legal centres and private practitioners, is breaking down. More private
practitioners are walking away from legal aid work because they cannot absorb the cost of taking on cases. e decline is particularly evident at courts outside the Sydney metropolitan area. Legal Aid NSW estimates the number of solicitors who committed their own time and resources to undertake ve or more services and claimed for duty work decreased from about 366 in the 2012-13 nancial year to 294 in the 2016-17 nancial year. Part of any funding injection for legal aid should be put towards adequately remunerating the private solicitors who ll a gap in work that core legal assistance services cannot provide. e Productivity Commission warned in its report on access to justice four years ago that private solicitors would not undertake legal aid work if the pay rate was not brought closer into line with the market rate. e current rate of pay has remained at $150 an hour since 2007. No adjustments have been made for in ation, meaning the pay rate has decreased in real terms by about a third in the past 10 years. A recent review by Legal Aid NSW concluded that fees across a number of practice areas were inadequate. Rates paid to solicitors for legal aid work are also inconsistent across the NSW O ce of the Director of Public Prosecutions, the Attorney-General, the Crown Solicitor’s O ce, and Legal Aid NSW. e rami cations of not taking action are particularly serious for victims and accused. We must remember that the legal aid system assists people at the lowest end of the poverty threshold. All people, irrespective of their nancial or social circumstances or geographic location, have a right to access justice. Without a substantial increase in funding for legal aid, including for private practitioners doing legal aid work, we risk access to justice becoming a privilege rather than an entitlement. Ultimately, inaction could result in the public losing trust in – and damage to the reputation of – the justice system as a whole.
Doug Humphreys OAM
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ISSUE43 APRIL 2018
Neutering society Ms Yazdani’s comments under the caption “Enough with the ‘Dear Sirs’” in the February LSJ made me wonder whether gender equality is achieved through gender neutrality. Put another way, is the ultimate goal of gender equality to achieve gender neutrality? If so, logic suggests that the typical question on gender found in most forms and questionnaires today should be taken out and people should stop addressing each other with gender identifying salutations in their correspondences. In fact, taking this line of thought further, people should probably stop addressing each other by titles, such as Mr, Mrs or Ms, that identify people’s gender, since gender apparently has no role to play in society. Political correctness can help engender a sense of equality, but, taken too far, toeing the line on political correctness can become a slippery slope fraught with irrational outcomes and unintended consequences. Of course, I could be wrong and a neutered society is the ultimate goal of mankind – err, I mean humankind. Joseph Ho, W&H Lawyers Glory of the pioneer In his excellent article on the history of women in our legal profession ( LSJ , March 2018), Tony Cunneen refers to the outright hostility of Professor Pitt Cobbett towards Ada Evans who, through ability and perseverance, graduated LLB in 1902. Cobbett was, by all accounts, not always an easy man. In a pen portrait published on the occasion of Sydney Law School’s jubilee in 1940, Sir George Rich referred to Cobbett’s practice of announcing examination marks individually in class – with comments such as
Celebrateyoursisters KirstenFergusononwhat inspired the #CelebratingWomenTwittercampaign Swallowingabitterpill Is thecriminalisationofdrugs doingmoreharm thangood? Justbeneaththesurface Aday in the lifeofa lawyerdealing withclientsbattling stressdisorders Shifting judicialdiscretion TheNSWCourtofAppeal reins in generous familyprovisiondecisions
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.
“pooh!”, “incredible!” and “scandalous!” – and then turning to the assembled students to “grin at his own vehemence”. As Cunneen has noted elsewhere (Bar News, Summer 2010-2011, p 70), Ada Evans did have some encouragement. Professor Jethro Brown wrote to her: “If I were in your place I would work on in spite of discouragement. If you cannot reap all the rewards of your toil, the greater glory will be yours of sowing that others may reap – the glory of the pioneer.” Brown spent a short time as acting dean at the Law School in 1898. It was he who admitted Ada Evans. Like Cobbett a native of South Australia, he earned doctorates from Cambridge and Dublin, was a foundation lecturer at the University of Tasmania (becoming professor of law in 1896) and later held chairs at the University College of Wales, the University of London and the University of Adelaide. He ended his career as President of the Industrial Arbitration Court of South Australia. Brown was noted for seeking positive interaction with students. In later life, he wrote a play, “Who Knows?”, which has been described as
a “drama of woman’s revolt”. He was a proponent of new idealist thought. Bleak and lonely as many of Ada Evans’ student days must have been, she cannot but have derived comfort and energy from re-reading Brown’s perceptive and enlightened words. He was right: by the end of her life in 1947, she had deservedly enjoyed “the glory of the pioneer”. Although another woman did not receive the LLB until 1924 and there were only 17 woman graduates by 1939, it was Ada Evans who broke the ceiling. R I Barrett, Honorary Life Member Bravo Tony Cunneen I greatly appreciated Tony Cunneen’s article (“Pioneers and pariahs: a century of women in law”, LSJ March 2018), which was illuminating and sobering. I wonder how few male lawyers (me included) knew of the Women’s Legal Status Act ? When I move the admission of ANU law graduates in the Banco Court, the gender balance of candidates is a testament to how things have changed. David Grinston, Grinstons Lawyers
Please note: we may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Robert Bryden has won lunch for four. Please email email@example.com for instructions on how to claim your prize. CORRECTION In the April LSJ the name of the lawyer featured in our Dressed to Impress column on page 50 was published incorrectly. The title said “John Pietersz” and it should have read “Johan Pietersz”. We apologise for this error.
10 LSJ I ISSUE 44 I MAY 2018
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Too cocky in NCAT I refer to the letter from P. L Hill, Associate Member ( LSJ , March 2018) in relation to NCAT concerns. I have run a few strata matters in NCAT for owners against the OC and have been mostly successful. I have even obtained a costs order from a tribunal member. However, this is not an exercise for the faint-hearted or the kind of lawyer who has practised in the more rigorous of jurisdictions. I regret that the practice and bias against sole owners is patent. In fact, having succeeded I would not counsel an individual to go to NCAT to resolve a dispute if it can be avoided. In my researches, the success of individual owners is almost non-existent. My opponents in the OC in one matter were so cocky at one stage that they didn’t bother to file documents or turn up to the hearing. They had been outrageously favoured by the adjudicator on previous occasions. They should, however, have appeared, as not only did I get orders that I sought but I also obtained costs. OCs, however, are made up of individuals in the Executive Committee. Perhaps relief can be considered against recalcitrant committees by warning the members of their duty of care as oce bearers. Sam Ingui, Pymble Fair but firm Thank you Campbell Bridge SC for your article on mediations in the April LSJ . The very last words are most important: “If you are known to be honest, thorough and fair but firm, you will be most eective. If you engage in misleading conduct, the consequences both personally and professionally
A sti Freudian slip? I received this confirmation from a real estate agent (to me and to the purchaser’s solicitors) after a final inspection prior to settlement and thought I would share: “Hi All, The shower is working. I have just had a sti member attend the property again, [and] water was flowing through after few minutes. I guess as it wasn’t used for some time it took a while to flow through.” Deborah Tam Baseless speculations In a recent article ( LSJ Feb 2018, “ Re: Kelvin – A turning point for gender dysphoria”), the startling allegation that a judgment in the Full Court of the Family Court of Australia ( Re Kelvin  FamCAFC 258), was aected by “vested Michelle Painter QC and Surya Palaniappan made might have been aected by an “unspoken factor”. In their review of the case, they wrote: “The plurality appeared to be at pains to confine the ratio of the Court in Marion’s case … The plurality’s analysis of Marion’s case, the consideration of the background to Re Jamie , and the passages following, read somewhat defensively. The plurality in this vein ensured to [sic] highlight that the medical evidence had evolved … Their Honours answered question two in the same way, that is, avoiding a finding that Re Jamie was plainly wrong (at ). This approach is perhaps not surprising given Strickland J ... was part of the Court in Re Jamie … In contrast, the concurring judgment … reached the very conclusion that the plurality seemed to wish to avoid: that those earlier decisions, and in particular Re Jamie , had incorrectly applied Marion’s case. […] It is also curious to note that Thackray J joined with Strickland and interests” of some of the judges, whose reasoning
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ISSUE 44 I MAY 2018 I LSJ 11
Murphy JJ who... seemingly had perhaps more vested interests in the plurality’s careful consideration of the intersection between Re Jamie and Marion’s case […]”. Read as a whole, the article suggests that the plurality judges were being disingenuous in their reasoning. Saying that the plurality “seemingly wished to avoid” the conclusion is quite misleading: they gave explicit and orthodox reasons for avoiding it. It is like saying, of a sentencing judge who has given detailed reasons for a sentence, that the judge “seemingly wished” to send the person to prison. The insinuation that there was something dishonest in the reasoning was presumably intended to support the speculation in the concluding comments that two of the judges displayed vested interests deriving from their involvement in previous decisions. While it would have been proper to discuss the desirability of including on the bench for Re Kelvin two judges who had previously expressed particular views on the issues, the authors do not do this (nor was there any application at the hearing that any of the judges should be disqualified). The plurality judgment is an orthodox and carefully reasoned judgment (as are the concurring judgments). Painter and Palaniappan do not identify any weaknesses in the reasoning that might indicate that the judges must have had some undisclosed reason for their reasoning. In my view, the authors’ recklessly worded insinuations and speculations are both baseless and insulting. In fairness, I should add that I regard all the judges involved as friends as well as former colleagues. Richard Chisholm, Honorary Professor, ANU College of Law, and former Judge of the Family Court of Australia
Thank you! In the United States they say, “If you feel safe today, thank a trial lawyer”. Recently, I was travelling along the M1 near the Pennant Hills merge when a 60-tonne semi-trailer I was virtually past suddenly changed lanes and clipped the rear of my car, causing it to spin in front of the truck, which pushed me and my car sideways for 80 to 100 metres until it finally stopped. I thought it was over. After I escaped the wreckage, the semi-trailer driver started abusing me. A witness stopped, took control of the situation, calmed the driver down, called the Police, arranged the trac flow, and managed things until the Police and RMS arrived to assist. I thought at the time, “What a gentleman, what skill in managing the situation, the people and the trac”. When we swapped particulars, I learnt it was our professional colleague Greg Walsh, who set aside his time and used his skills so eectively, despite being in a hurry to get to court to represent a client. What a great representative of all that is good about our profession. Thank you, Greg, I felt safe that day due to your intervention. Robert Bryden Nailed April edition Just a brief note to compliment you on the April edition of LSJ . The article selection was tops, the writing terrific and the layout superb. I read pretty much everything, with ease and in a very short amount of time. You’ve nailed it so well I felt compelled to send you this note. PJ O’Brien, Newcastle Appalling service at Land Registry Services I had occasion recently to telephone Land Registry Services NSW for their guidance on how to describe
premises on a lease that I required to register. I had already looked up the Registrar-General’s guidelines on this but I considered they were still unclear for my purposes and I didn’t want to risk a requisition being raised when I lodged the lease. I was informed by the LRS ocer I spoke to that they were not permitted to give any assistance on this except to refer to me to the Registrar-General’s Guidelines. I asked why not and was not given any reason except a reiteration that they were not allowed. I said I had already referred to the Guidelines but was still unsure. There was still no change in the ocer’s stance on this. I responded by giving the ocer my opinion that this could only be because LRS wanted me to lodge the lease so a requisition could be raised together with a requisition fee. At the very least, I had the satisfaction of then hanging up. Regardless as to whether I am right or wrong, in my opinion this situation is quite simply disgraceful and intolerable. In my more than 40 years of practice, we have always been able to phone up
for assistance when required. I see no valid reason for this to have now changed. I urge the Law Society to approach LRS to reverse its position. Members of the profession, and indeed of the public, must be entitled to assistance where necessary. Sam Scarfone Treat drugs the same as alcohol and tobacco I congratulate the editor for including the article “How to fight a war on drugs” in the LSJ April edition. The use of illegal drugs is out of control in the black market and there is no prospect of controlling this situation. The prohibition on drugs is not a deterrent for anyone who wants to use the drugs. I fully support the idea of treating drugs in the same way as alcohol and tobacco. They should be legalised, regulated and taxed. In my view, the benefits of doing so (as described in the article) are substantial for the community and outweigh any detriment. We need some courageous politicians to run with this agenda. But this is a hot potato for them so unfortunately that is unlikely to happen anytime soon. Tony Wassaf, Sydney
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ISSUE 44 I MAY 2018 I LSJ 13
INDIGENOUS ISSUES ALRC report shows
Indigenous incarceration rates only getting worse
BY KATE ALLMAN
to improve child protection and youth justice. The strategy included plans to replace Don Dale and Alice Springs Youth Detention Centres and invest in community-led programs that would help divert young people from crime and future offending. Such funding would address youth imprisonment issues that Bailes said were inextricably linked to the high imprisonment rates of Indigenous adults. “There is no doubt that the extremely high rate of Aboriginal and Torres Strait Island imprisonment is linked to punitive criminal justice measures that bring them into contact with the justice system at a very young age,” he said. The ALRC report noted that higher incarceration rates did not necessarily correlate with higher crime rates, but could be due to discretionary factors and prejudices within the system. For example, Indigenous people were seven times more likely than non-Indigenous people to be charged with a criminal offence and were 11 times more likely to be held in prison on remand, rather than be granted bail. Up to one third of Aboriginal and Torres Strait Islander people in prison were being held on remand awaiting trial or sentence – many of whom did not receive a custodial sentence after conviction. The report offered 35 recommendations for State, Territory and Commonwealth governments to address incarceration rates, including reforms to bail laws and sentencing so judges could take into account systemic and background factors.
The Australian Law ReformCommission (ALRC) has released a report showing that Indigenous people are being imprisoned at a rate more than double that reported 27 years ago by the Royal Commission into Aboriginal Deaths in Custody. The ALRC Indigenous Incarceration Report was released on 28 March and threw light on the staggering numbers of Indigenous Australians being caught up in the prison system. It noted that in 1991, the Royal Commission into Aboriginal Deaths in Custody found that Indigenous Australians were being imprisoned at seven times the rate of the general Australian population. Today, that number has more than doubled. “This figure has jumped to 14.7 times for Aboriginal and Torres Strait Islander men and a staggering 21.2 times for Aboriginal and Torres Strait Islander women,” said the President of the Law Council of Australia, Morry Bailes, who called the situation a “national crisis”. The report found that Aboriginal and Torres Strait Islander adults make up about 2 per cent of the population, yet they constitute 27 per cent of the national prison population. In 2016, about 20 in every 1,000 Indigenous people were incarcerated. “The ALRC report must not go the way of the past Royal Commission report where most of the recommendations are still gathering dust,” said Bailes. The ALRC report came before the Northern Territory Government announced on 20 April that it would invest $229.6 million over five years
The ALRC report must not go the way of the past Royal Commission report where most of the recommendations are still gathering dust. The ALRC’s recommendations offer a renewed roadmap to end disproportionate numbers of Aboriginal and Torres Strait Islander people in incarceration.
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Thought leadership The Law Society invites solicitors to a Thought Leadership panel discussion on 15 May on the topic
“Legally aiding access to justice”. Jane Sanders, Principal Solicitor at Shopfront Youth Legal Centre, will facilitate the panel as they discuss the relationship between the legal assistance and community legal sectors and access to justice. Speakers include e Hon Acting Justice Ronald Sackville AO, NSW Court of Appeal, Brendan omas, CEO, Legal Aid NSW, and Nadine Miles, Principal Legal O cer, Aboriginal Legal Service (NSW/ACT) Ltd. Register at lawsociety.com.au/ learning-and-events/events-calendar/ legally-aiding-access-justice
Golden Gavel Fancy a side of funnies with your
breakfast? Tickets are selling fast for the 2018 Golden Gavel competition at The Westin on 18 May from 7.30am.
Judge Kate Traill
NSW DISTRICT COURT Judge Traill recently sentenced a Canadian woman, 24, who was lured into the drug trade by an older man, whom she called her “sugar daddy”. The woman documented her crimes on Instagram. This is a sad indictment on her relative age group in our society. It is sad they seek to attain such a vacuous existence, where how many ‘likes’ they receive is their currency. This highlights the negative influence of social media on young women.
Established in 1993, the annual public speaking competition tackling humorous legal topics is open to members of NSW Young Lawyers as well as law students. Close to 800 people attended last year’s even to hear 10 nalists speak on di erent topics, which they received just 24 hours before the breakfast event. Visit lawsociety.com.au/goldengavel or the NSW Young Lawyers Facebook page for tickets and more information.
ISSUE 44 I MAY 2018 I LSJ 15
TIM LEACH sixminuteswith
EXECUTIVE DIRECTOR OF COMMUNITY LEGAL CENTRES NSW CLCNSW
What was your first job out of university and what did you learn in that role? My very rst gig was at the South West Sydney Community Legal Centre. It was a very steep learning curve. If you had told me in advance how much work it would involve, I might not have taken the job. It was a small centre and very under-resourced. You didn’t need many people to leave to have a full turnover of sta . Within a year, I was the longest-serving member of sta in that centre. What did you like about working in CLCs? I liked the work that we did and I was motivated to be part of a movement that was trying to make the legal system fairer. You also have done a lot of work in HIV prevention, for the AIDS Council of NSW and the Australian Federation of AIDS Organisations. What were some of the challenges and highlights? ere was some very intense prejudice and discrimination against particular communities when I was working in that sector in the 1990s. Gay men, people who inject drugs, sex workers, people with HIV – people in those communities were vili ed. But it’s also true to say there was an amazing collaborative e ort to address the spread of this disease. It was good for me to see early in life the e ect that groups of people working together could have. You had government, community, medical and research communities working together. When they worked together instead of being at war, huge progress was made. can work in a way that is recognised and supported by the government and community. I want to support individual centres to do their best work. I want to create opportunities for centres to share the work they are doing with people across the legal sector. I think we’re doing some really fascinating, innovative stu and I want to capture that. CLCs are embedded in communities, so I think if there are new and emerging issues, we are in a unique position to discover that and adapt strategies to improve the legal system. What are some goals for CLCNSWunder your leadership? I want to build a sector that has funding security, that
Photography: Jason McCormack
Tim Leach stepped into the role of Executive Director of Community Legal Centres NSW (CLCNSW) in February. He brought with him 28 years of experience working in legal, policy and management positions in a variety of organisations, including at the Australian Human Rights Commission, the NSW Anti- Discrimination Board and the Australian Federation of AIDS Organisations. Taking the top job at CLCNSW has brought his career full circle as he returns to the sector that hired him when he graduated from UNSW with an Arts/Law degree in 1990.
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BY LINDEN BARNES, ETHICS SOLICITOR
Q: What is the least tasty side dish you want to be served at a weekend BBQwith family and friends? A: A spicy request for advice. I am not going to go into the risk issues of this situation – Lawcover has plenty of examples. Nor will I look at the practising certi cate issues – my colleagues in Regulatory Compliance can help on that side. What I am going to focus on are two Conduct Rules, and there are two reasons from an ethical perspective why it is not a good idea for solicitors to act
for family or friends. e rst is Rule 4 and the requirement that solicitors remain independent of their clients. How can solicitors be independent of their loved ones? ere are many examples of unreliability if solicitors act for family members. It is not that solicitors set out to do the wrong thing. However, they are likely to be biased, possibly subconsciously, and this may make them less than reliable. e second is Rule 12. is is the rule that requires solicitors to have no the court’s concerns with a lack of independence and potential
con ict between themselves (or indeed family members) and their clients. Rule 27 also says solicitors cannot usually act if they are a witness. is is essentially a subset of Rule 12 as it is a particular instance of a con ict. When solicitors act for family or friends, con icts can arise so much more easily than with an unrelated client. Solicitors may have their own interests, for example, in a will that is being drafted. ey can be a witness to the way in which children are being parented. Advice really is a side dish that makes the deliciously crispy barbequed salmon taste bad.
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ISSUE 44 I MAY 2018 I LSJ 17
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
Nicole Pearce Joined as a lawyer, Family Law team Coleman Greig, Parramatta
Anna D’Addona Joined as Independent Children’s Lawyer, Family Law team Coleman Greig, Parramatta
Anthony Saba Joined as a solicitor Tiyce & Lawyers
Michael Perkins Joined as Head of Private Client Services Nexus Law Group
Donna Bartlett Appointed as Partner, Intellectual Property &
Marial Daniel Promoted to Senior Associate Teleo Lawyers
Technology Team Gadens, Sydney
Angus Haig Joined as General Counsel Cox Automotive Inc, Atlanta, USA
Peter Milevski Joined as Principal Barry.Nilsson. Lawyers
Elizabeth Clegg Joined as Senior Associate Barry.Nilsson. Lawyers
Jayne O’Sullivan Joined as Senior Lawyer Stacks Goudkamp
JohnMoran Appointed as Partner Clyde & Co, Sydney
Belinda Cassidy Joined as Senior Counsel Stacks Goudkamp
LAWCAREERS Sydney LawCareers Fair a hit for the second year
path that law once represented. “Not all graduates are hoping for a clerkship or graduate position at a corporate rm any more, although that once was the goal for many,” said Graves. “Many express their desire to work in human rights law, government positions, as an in-house lawyer or even embark on an entirely di erent, non-legal path. “Modern employers recognise the multi- faceted skillset that a law degree provides and are keen to employ law graduates.” For information on the myriad career options available to law graduates, visit legalvitae.com.au
Law students from around NSW inundated the International Convention Centre on 28 March for the Sydney Law Careers Fair. e future legal eagles were o ered myriad career options that were not limited to graduate positions in the “Big Six” Australian rms but included government roles, in-house and even non-legal career options. Victoria Graves, Manager of NSW Young Lawyers and Graduate Services at the Law Society of NSW, noted the range of careers for law graduates had expanded in recent years, and students were becoming more open- minded in looking beyond the straightforward
NSWYOUNG LAWYERS Newguide for lawyers briefing experts
NSW Young Lawyers has collaborated with Unisearch Expert Opinion Services to launch the Practitioners Guide to Briefing Experts , a go-to guide for lawyers learning to brief and instruct expert witnesses in NSW. e guide was launched on 12 April at the Law Society at a panel event featuring guest speakers the Hon Justice Robert McDougall of the Supreme Court of NSW, barrister Renee Bianchi, solicitor David Edney, and Adjunct Professor Ann Fairfax from the University of NSW. More than 40 lawyers attended the event and praised the insightful discussion from the range of experts o ering di ering angles on brie ng expert witnesses. Danny Gompes, Business Development Manager at Unisearch Expert Opinion Services, chaired the panel. e guide is available in hard copy or online via a ipping book. Download your copy via lawsociety.cld.bz/ e-Practitioner-s- Guide-to-Brie ng- Experts
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2018 Regional Presidents meeting Regional presidents from the state’s 29 regional law societies gathered at the Law Society of NSW on Friday 23 March, engaging in robust discussion and catching up on the latest work of the Law Society.
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Innovative Harlem court model could offer solutions for NSW
BY KATE ALLMAN
a similar program in NSW might have a significant impact in reducing recidivism, especially within vulnerable communities and areas with a high concentration of parolees.” A 2014 report by the NSW Bureau of Crime Statistics and Research (BOCSAR) showed that one in four parolees in NSW reoffended, and 2018 statistics from the NSW Reoffending Database, compiled by BOCSAR, found that almost half the adults who exited prison were reconvicted in the next 12 months. However, Senanayake’s report noted that programs like the Harlem Re-entry Court could reduce the likelihood of this reoffending. “A randomised controlled trial conducted on the Harlem Court found that, at 18 months post release, Harlem Court participants were significantly less likely to be reconvicted or have their parole revoked, compared with a control group,” wrote Senanayake. The Harlem Court matches participants with a parole officer and a case manager who connects the parolee to social services in the community. The case managers help parolees to secure housing, assist them to apply for a driver’s license, or help them enter necessary drug or alcohol rehabilitation programs. The participant and his or her parole officer then also appear regularly before a judge in the court. Senanayake noted that the word “court” was used loosely and the program was perhaps better described as a parole program – helping to ensure former inmates stay out of jail and successfully re-enter the community. Parolees had six months to complete the program and, if successful, would
celebrate with a graduation ceremony before transferring to regular parole supervision for the remainder of their parole term. In a separate trial that Senanayake’s report referred to, Harlem Court participants were found to be more likely to be employed, had a significantly higher annual income, reported less drug use and demonstrated better quality family relationships than parolees not in the program. Senanayake said the challenges that prevented more re-entry courts from opening were the costs and resources involved. Perhaps unsurprisingly, matching a case manager, parole officer and judge to each individual parolee was resource-intensive for the Harlem Court administrators and such programs would be hard to scale because of their high initial cost. However, Senanayake noted that “re-entry courts are not appropriate for mass replication” and “the most effective re-entry courts target a specific group of offenders and deliver programs to that group”. “While there are differences in parole between NSW and New York, there are elements of the Harlem Court that could be used in a local re-entry court mode,” the report concluded. By actively addressing unemployment, substance abuse and other issues that cause criminal behaviour, a re-entry court could find success in the NSW criminal justice system, she added. Applications for the John Hennessy Legal Scholarship will open on 1 June. Visit lawsociety.com.au/legal-communities/ government-solicitors/solicitor-awards for details.
An experimental new court model has been shaving numbers off the high reoffending rate for parolees in one of New York’s most notorious crime neighbourhoods. Now, an Australian policy lawyer believes the same model could be worth exploring in NSW. The Harlem Parole Re-entry Court helps offenders reintegrate into the community after they have left jail by connecting them with local social services and requiring them to attend regular hearings before a judge, who monitors their behaviour. The program is one of the first of its kind in the world and represents a full-circle approach to rehabilitating former criminals after they have served their prison sentences. Policy Officer at the NSW Law Reform Commission and Sentencing Council Secretariat Nayomi Senanayake travelled to New York to study the program last year on a grant awarded to her by the Law Society of NSW’s 2017 John Hennessy Research Scholarship, which offers a scholarship up to $10,000 for public sector lawyers to undertake research in another jurisdiction and make recommendations for the improvement of the legal system in NSW. Senanayake spent two weeks in New York investigating whether the Harlem Court program could be transferrable to the NSW parole system, and in April returned an optimistic report to the Law Society of NSW. “A re-entry court could be a way for NSW to curb its reoffending rates and enhance the effectiveness of its parole scheme,” wrote Senanayake. “In a climate of growing parolee numbers,
20 LSJ I ISSUE 44 I MAY 2018
RURAL ISSUES Permanent magistrate a bigwin in Broken Hill A new residence will be built or purchased to accommodate a newmagistrate at Broken Hill in NSW’s far west, alleviating fears the region’s permanent magistrate was to be replaced by a fly-in, fly-out judge. Law Society President Doug Humphreys has commended Chief Magistrate Graeme Henson for listening to the speci c needs of the community and thanks the President of the Far West Law Society, Rachel Storey, for her “tireless e orts on this campaign”. “Like many courts in regional and rural areas, the Broken Hill Local Court is crying out for more resources to ease the burden of excessive workloads and delays,” Humphreys said. “ e court deals with some of the most disadvantaged people in the state including Aboriginal and Torres Strait Islanders and women and children seeking help to escape family violence. Legal Aid and the Aboriginal Legal Service (NSW/ACT) are overwhelmed with requests for assistance.”
EVENTS All eyes on Sydney for 2018 International Law Association Conference Sydney will step into the spotlight as it hosts the 2018 International Law Association Conference from 19-24 August at the International Convention Centre, Darling Harbour. Internationally renowned speakers will address the big issues in international law, including trade in the Asia-Paci c region, pathways to nuclear disarmament, modern slavery and feminism in international law. Speakers include Minister for Foreign A airs Julie Bishop, the Chief Justice of the High Court the Hon. Susan Kiefel, the Chief Justice of the Federal Court of Australia the Hon. James Allsop AO and more. Explore the full program at ila2018.org.au/ program and discover which conference package is best for you at ila.org.au/register .
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ISSUE 44 I MAY 2018 I LSJ 21
WELLBEING Jepsons step down
After more than 10 years at the helm, Marie and George Jepson are stepping down from involvement in the Tristan Jepson Memorial Foundation (TJMF). Leadership of the organisation is being handed over to the board. Marie Jepson has been Executive Director of the foundation since it was established in 2008, in honour of her late son Tristan, a UNSW law graduate who was diagnosed with clinical depression in 1998. Tristan su ered bouts of depression during his university years and committed suicide by drug overdose at age 26. According to the foundation, one in two law students, one in three solicitors, and one in ve barristers report they have experienced depression. “ e time has come for me to step down as Executive Director of TJMF and hand over the future development of this endeavour to the legal professional itself,” Marie Jepson said in a statement. “TJMF’s work and our e orts over the past years have been our gift to the profession in Tristan’s memory. e full-time role over the past 10 years has taken its toll on me. Creating a psychologically safe and healthy workplace culture does not happen overnight. It requires sustained e ort and active leadership commitment to creating a team.” e current chairman of the foundation’s board, Alan Cameron AO, is also stepping down from his role. e remaining board members will continue to lead the organisation.
For the full round-up of Law Society advocacy, see page 68.
Review of the Local Court Act The Litigation Law and Practice Committee contributed to a letter to the Department of Justice regarding a review of the Local Court Act 2007 (NSW). e letter reiterated the Law Society’s previous support for increasing the Small Claims Division’s jurisdiction to $20,000 to facilitate a quicker and cheaper method of resolving civil monetary disputes. Any expansion should ensure that safeguards are in place so that appeal rights are not reduced. e letter also suggested that, subject to consultation with the Local Court, consideration may be given to dividing the General Division of the Court into a number of lists to allow for the appointment of magistrates with some specialist experience to particular lists. Identity matching legislation The Privacy and Data Law Committee contributed to a letter to the Law Council of Australia providing comments for a Law Council submission in relation to the Identity-matching Services Bill 2018 (Cth) and Australian Passports Amendments (Identity- matching services) Bill 2018 (Cth). ese comments were incorporated by the Law Council in their submission to the Parliamentary Joint Committee on Intelligence and Security. is letter raised concerns about the short consultation timeframe, the nature of the Interoperability Hub, the security of access to the Interoperability Hub and the National Driver Licence Facial Recognition System, the scope of the Interoperability Hub and private use of the face veri cation service. e letter noted that the legislation does not incorporate all the limits and safeguards contained in the Intergovernmental Agreement on Identity Matching Services. e letter also set out concerns about the limited provision for the oversight of the Interoperability Hub.
Celebrating 25 years of the DDA The 25th anniversary of the commencement of the operation of the Disability Discrimination Act 1992 (Cth) (DDA) occurred on 1 March 2018. To celebrate, the Commission hosted an event at PWC’s Barangaroo Oces in Sydney. e event included a facilitated panel discussion on the successes and challenges of the DDA. e panel included Catia Malaquias, a lawyer, board director and human rights advocate; Damian Gri s, CEO First Peoples Disability Network Australia; Professor Helen Meekosha, Honorary Adjunct Professor Helen Meekosha, School of Social Sciences UNSW; and erese Sands, People With Disability Australia. e UN Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, was also in attendance. e MC for the event was Wendy Harmer.