ISSUE 55 MAY 2019
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Attend the annual Specialist Accreditation Conference to keep up to date in your area of accreditation. This year’s conference streams are Family Law, Business Law, Property Law, Personal Injury and Wills & Estates. Venue: International Convention Centre Sydney
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Attend the annual Government Solicitors Conference to hear from distinguished speakers on important legal issues relevant to you as a government lawyer and your clients. Venue: Four Seasons Hotel Sydney
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ISSUE 54 I APRIL 2019 I LSJ 51
28 Hot topic
40 Spot your inner impostor The “fake it till you make it” mantra can actually undermine your work, writes Emma Heuston
51 Career coach
The UN is looking at Australia’s scorecard on children’s rights. Melissa Coade speaks to lawyers who worked on the report
How do you interpret feedback that you should be taking on more responsibility at work?
30 Cover story
Rachel Setti considers how ethical workplaces can keep employees’ moral anxiety at bay
Hockey star Kalindi Commerford chats with Kate Allman about her fledgling legal career
The trial of George Pell has put the use of suppression orders in Australia under the spotlight
48 A day in the life
36 Managing in law
Jim Main is a seasoned legal practitioner but ageism has a ected how clients perceive his experience
Osaka o ers a taste of both modernity and ancient culture in Japan. Kate Allman explores the delights of this thrumming city
Sam McKeith reports on a soft- skills deficit in legal management that needs to change
ISSUE 55 I MAY 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career matters 46 Mindset 50 Doing business 52 Life outside the law 54 Health 56 Fitness 64 Books 66 The case that changedme
82 Elder law
The latest key developments in advocacy and law reform
In the national effort to combat elder abuse, is it time to revisit the notional estate?
70 Criminal law
The compelling case of the Bowraville murders and its implications for criminal law
Tougher laws and more resources usher in ASIC’s renewed approach to enforcement
Buying or selling, beware the sting of the GST
Court warns against lodging unmeritorious e-caveats
Increased scrutiny reveals franchisors falling short of industry Code of Conduct
Court of Appeal narrows scope of ‘just compensation’ for resumed businesses under Just Terms Act
Fine lines blurred in important adverse action claim
Why honesty is the best policy - especially when you mess up
78 Contract law
91 Case notes
Reflections on Codelfa and the ‘ambiguity gateway’
A wrap-up and analysis of the latest HCA, FCA, Family, Criminal and Wills & Estates judgments
The importance of training in avoiding legal liability for rogue employees
81 Library additions 106 Avid for scandal
4 LSJ I ISSUE 55 I MAY 2019
I NFORM. ENGAGE . I NSP I RE .
IN ONE DAY
500 LEGAL PROFESSIONALS
50 EXPERT SPEAKERS
20 FACE-TO-FACE SESSIONS, WORKSHOPS AND PODCASTS
11 HOURS OF DEMONSTRATIONS
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17 CPD POINTS 7 ON THE DAY 10 VIA PODCAST
FUTURE OF LAW AND INNOVATION IN THE PROFESSION (FLIP) HI LTON S YDNE Y THURSDAY 25 JULY 2019
ISSUE 54 I APRIL 2019 I LSJ 51
A word from the editor
Kirrily Schwarz’s cover story on page 30, “Secret’s out: the storm around suppression orders”, is a fascinating read. When Cardinal George Pell was convicted of child sex offences in December last year, it quickly became the country’s worst- kept secret. Media outlets forbidden from publishing the news dropped prominent clues to their readers, clearly frustrated by court-issued gag orders (who could forget the Daily Telegraph ’s
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist
front page on 13 December with the brilliant cover line, “An awful crime. The person’s guilty. You may have read the news online already. Yet we can’t publish it. But trust us ... It’s the nation’s biggest story”). As many intrigued readers would have done, I went straight to Google and searched: “high-profile conviction Australia suppressed”. Up popped a slew of blogs fromCanada and the US, reporting the news that our nation’s most senior Catholic had been found guilty of horrific offences. The situation sparked a widespread debate about suppression orders and whether they should have been issued in this instance. Did we have a right to know, or should the interests of natural justice prevail? It’s an ongoing argument. Let us know your thoughts by emailing email@example.com
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2019 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
KIRRILY SCHWARZ Cover story p30 Kirrily Schwarz is a Young Walkley Award- winning journalist and producer with a double degree in journalism and law. In this issue, she examines whether suppression orders are effective, necessary or fair in the modern age of information.
SAMMCKEITH Management p36
CRAIGLONGMAN Criminal law p70 Craig Longman is a barrister and the Head of Legal Strategies and Senior Researcher at the Jumbunna Institute at UTS. This month, he examines the compelling Bowraville murder trials and the broader implications for criminal law.
ANNA JOHNSTON Privacy p80 Anna Johnston is the Director of Salinger Privacy and a former Deputy Privacy Commissioner of NSW. Ahead of National Privacy Week in May, she explains why proper privacy training is key to avoiding liability when employees go rogue.
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Sam McKeith has worked as a journalist at the AFR and Huffington Post, and has a Bachelor of Arts (English) and Law. In this issue, he delves into why lawyers are still critiqued on their people skills in an era when they are so critical to success.
ISSUE55 MAY 2019
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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6 LSJ I ISSUE 55 I MAY 2019
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provide the best outcomes for Australian families. Register now at lawsociety.com.au/thoughtleadership
ISSUE 55 I MAY 2019 I LSJ 7
O ne of the Law Society’s mandates, and indeed our Memorandum of Association’s first objective, is “to consider, originate and promote re- form and improvements in the law … [and] to remedy defects in the ad- ministration of justice.” Guided by our motto, omnium jura defendimus , the Law Society engages with government and communi- ty stakeholders to ensure our legal system defends the rights of all. One current law reform issue is featured in this month’s LSJ – the NSW Law Reform Commission’s consent law review into section 61HA of the Crimes Act 1900 (NSW). The Law Society contributed to the review with a submis- sion in June 2018, calling for “ongoing judicial education and attention to the difficulties which juries face ... to en- sure consistent and fair outcomes in sexual assault trials”.
Meanwhile, voices for reform are grappling with the question of how best to deliver meaningful change to those engaged in the family law system. The landmark report of the Australian Law Reform Commission, pub- lished on 10 April, contemplated the referral of family law disputes to the states and territories, and the eventual abolition of federal family courts. In the wake of this recommendation, these questions will be addressed at our upcoming Thought Leadership panel, “Family law courts: Change for a system in distress” on Tuesday 14 May. For the benefit of our regional practitioners, we will be webcasting the event. Our leadership in the law reform process is informed by our community’s future justice needs. We recently welcomed the announcement of an additional $20 million federal funding for legal assistance services until 30 June 2022. Whatever the result of this month’s federal election, this guarantee must be followed with additional long-term funding to ensure timely access to justice for the vulnerable. Similarly, last month the Law Society made a pre-budget submission to the NSW Government on the need for increased funding for the legal assis- tance sector, and adequate resourcing for state courts and tribunals. Both federal and state governments must rise to the task of building tomorrow’s justice infrastructure. I am helping to lead a campaign for a multi-jurisdictional South-western Sydney Justice Precinct. According to the Greater Sydney Commission, by 2036 the south west will be home to 1.1 million people – a city the size of Adelaide. The existing courthouses at Camden, Campbelltown and Picton are outdated, at capacity and unsafe, while court users face delays and costs as they must go far afield to Sydney, Parramatta or Wollongong for the resolution of family law disputes. Our efforts are gaining momentum – support the campaign and follow our progress at justiceprecinct.org Finally, just as society must be equipped for its future needs, so too must NSW legal practitioners be equipped to serve clients innovatively into the future. Early bird rates for our 2019 Future of Law and Innovation in the Profession (FLIP) Conference are still available. This event, on the back of our successful inaugural conference in 2018, will for the first time feature a new “ Future-proofing your career” stream and the “ Today and tomorrow alley” – a virtual time-travel experience leading attendees on a journey from legal practice in 2019 to what it might look like in 2050. I encourage all members to attend.
8 LSJ I ISSUE 55 I MAY 2019
THE LAW SOCIETY OF NEW SOUTH WALES IS PROUD TO ANNOUNCE THE 2019 PRESIDENT’S CHARITY
Our Watch is a not-for-profit organisation established to drive nationwide change in the structures, norms and practices that can lead to violence against women and their children. Australia has a choice. We can change the story that currently sees a woman murdered every week by a current or former partner. We can choose a future where women and their children live free from violence.
Find out more at www.ourwatch.org.au
ISSUE 54 I APRIL 2019 I LSJ 51
acceptable today to the major- ity of the current High Court to clients who mostly have little knowledge of the complexity of the problem let alone the importance of the key relevant facts that they happen not to mention? We really are mugs. Wherever I look in the professions (yes, I include med- icos) I see standards dropping. The unstated mantra is that individual cases don’t matter, it’s the overall average achieved that’s the accepted measure of success. Is this my pitch to encourage a drop in standards? No, far from it, but I do think it’s time for us to become kinder to each other, more co-operative and easier on ourselves. And in case you’re thinking I’m a lazy youngster looking for an easier life, I was admitted in 1981. Stephen Rayfield, Solicitor and Public Notary, Warners Bay O ce Legals in the fast lane Dear members of the journal, I really enjoyed the December edition. The costs summary article by Michelle Castle and Andrew Bailey was very helpful to me in a couple of cases, particularly where I am a litigant (and if successful with a delayed judgment will hope to recover for my time). The article by Dr Emma Carmody from EDO NSW was so topical and well- written. I have read part of the Bret Walker Report. I will look at the proceedings and enforcement actions they have taken where a link is given. In the main I read the journal on the fast ferry between Manly and the city. It is a good enjoyable read. The article by Matthew Shepherd about litigants going to arbitration because of the long delays in the Family Court shows
lawyers lateral thinking and ingenuity. Please keep it up. Stephen Titus, Partner Carneys Lawyers A cry from the heart I note that in Monday Briefs on 1 April 2019 (perhaps an April fools’ joke) the President writes again about “Indigenous incar- ceration rates on the rise”. Is this just another case of hand wringing or virtue signalling? Brendan Manning in his letter “Gaol birds” published in the March 2018 editor of the Jour- nal and my letter published the following month, pointed out clearly the need to “address the cause of the problem: not try and put a band aid over the outcome”. I commend to you and all my fellow practitioners Jacinta Price’s article “A cry from the heart Indigenous women are being silenced … by Indigenous women” in the 9 February, 2019 edition of The Spectator Australia. She is an Aboriginal woman honestly identifying a major factor in the current indigenous incarceration prob- lems. She concludes her article: “They are utterly fractured. There is no ‘community’ and there will not be one until we learn to listen to each other and support each other. How can we expect white Australians and governments to listen to us respectfully when we are so willing to tear each other down. We have got to stop being our own worst enemies.” O. R. Butler A novel approach on coal The case of Gloucester Resources Limited v Minister for Planning is indeed novel in NSW for including the theory of Anthropogenic Climate Change (AGW) as a justifica- tion for refusing a coal mine
Anationobsessed IsAustralia’sappetite for truecrime hampering the right toa fair trial? Neverstopstriving Five lawyers share their reasons for pursuing furthernon-legal study There’sanappforthat Discoverwhat’shotandwhat’snot when itcomes tomentalhealthapps Defamationdilemma Why socialmediaposes serious challenges todefamation laws
ISSUE54 APRIL 2019
A new dawn for big banking
The burnout profession Areyouon thebrink?
Congratulations to Ball Point and Barb Wire (the real authors using the pseudonyms William Chalk and Dale Picketfence) for their brilliant article. Don Watson (Weasel Words etc.) would applaud. Roger Butler, Cole & Butler, Solicitors, Moree
21/3/19 12:31 pm
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.
Burnt out by burn out Was I the only reader
to notice the irony in the fact that the story following Kate Allman’s thought-provoking “The burnout profession” was titled “Upskilling to outrun the pack”? ( LSJ April 2019) Something else that I recent- ly found thought provoking was a paper lecturing me on how I should advise an employer who had just received an employee’s resignation. What first occurred to my obtuse brain was, “Which of my clients would actually pay to seek legal advice on that simple question?” As I read the paper, I could see that, after thorough research, I could competently answer that question should it ever occur to an employer to ask it. My next (inevitable) internal question was, “Is there really any question that I can con- fidently answer o the cu , without pausing to contemplate and/or to update myknowledge of the law since the highest courts in the jurisdiction shut up shop today?” Most likely only mathematical questions can be answered that accu- rately, so why do we still feel obliged to impose on ourselves the burden of giving advice to a minimum standard that we could guarantee would be
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! Stephen Rayfield has won lunch for four. Please email: email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 55 I MAY 2019
science. This is a great pity because most of this science is problematic. For instance, the claim at 431 that most of the atmospheric increase in CO2 has come from the anthropogenic increase in GHG (greenhouse gases) concentration has been largely refuted by a number of scien- tific papers and research (i.e. Harde, Gloor et al, Knoor, Pet- tersson, Quirk, Berry, Munshi, Salby etc). The point being that despite the IPCC science asserting CO2 is the dominant GHG and has a causal correla- tion with temperature, if the increase in CO2 concentration is natural not anthropogenic then restricting human emis- sions from coal, particularly Australia’s contribution from our relatively tiny usage, is Quixotic. Regardless, given Australia is the world’s largest exporter of coal with those exports keeping the Australian econ- omy afloat and with rapid improvements in coal power technology which markedly restrain CO2 emissions the fact that a NSW court has ruled against one particular coal mine is unlikely to be a paradigm shift. Anthony Cox, Solicitor Thanks, but … It was great to see the success of the Work Development Orders scheme highlighted in your April edition, but the Public Interest Advocacy Centre can’t take as much credit as we were given in the article. We are very proud to have provided the catalyst for the scheme and to have been involved in its development, but credit is really due to our colleagues at Legal Aid NSW, the Department of Justice and Revenue NSW for ‘helping
proposal. However, a previous case in Queensland, Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management  QLC013, found the opposite. In Xstrata, the Court found: 1 its powers and functions in recommending conditions were restricted to the extent of any inconsistent overlap with conditions imposed under the State Develop- ment Act 2 its jurisdiction was limited as to those water issues it could consider at this stage of the project, which it suggested was undesirable 3 global climate change issues were largely irrelevant to its decision whether to recom- mend the project proceed The Xstrata case was for a thermal mine, which is coal used for generating power in coal power plants. The proposed Rocky Hill mine at Gloucester was for coking or metallurgical coal, which is the highest quality coal used for the making of steel. The Rocky Hill case was brought by a local environ- mental group, Groundswell Gloucester, which was chaired by a Greens’ candidate, Julie Lyford. Groundswell was represented by the NSW EDO and the case was heard before Preston CJ, who had previous- ly worked for the EDO. The evidence for AGW was referred to by Preston CJ in his judgment beginning at paragraph 422. What follows is a verbatim reporting of sci- ence material from the IPCC (Intergovernmental Panel for Climate Change). Gloucester Resources, the consortium behind the coal mine proposal, did not challenge any of this
more than 50,000 … people to clear debts related to fines’. Their role in administering and continuing to grow the scheme has been critical to its success. Jonathon Hunyor, Chief Executive Officer, Public Interest Advocacy Centre Ltd In the April edition of LSJ , a news story was published on page 23 indicating that the Work Development Orders Scheme was a program run by PIAC. This was incorrect. The scheme is run by Legal Aid and Revenue NSW, and was set up in response to a 2006 report authored by PIAC: Not Such a Fine Thing . Vale, Trevor Nyman I write in order to convey to the current membership of The Law Society, the contribution that the Late Trevor Nyman to the affairs of the Law Society and wider legal profession. Sadly he passed away in mid- April at the age of 81, having outlived his wife and I note was the grandfather to twelve grandchildren. Trevor’s career principally in the field of criminal law is an example of what is right about “the cab rank rule” and the principle of the “unpopular cause” which have been prin- ciples that underpinned the taking of instructions in the legal profession for several hundred years. Sadly, despite the underlying notion behind those two principles, which is basically that one accepts instructions for legal work, not because we agree with the position of the client, but because everyone is entitled to the best legal representation available. What unfortunately has emerged is that to many Editor’s note: CORRECTION
people, both lawyers and oth- erwise, make the ill-informed assumption that if you acted for people accused of a seri- ous crimes, and you did so as a speciality, then in all likelihood you were part of the criminal world and at the least tainted by it and at the worst complicit in it. In my view Trevor Nyman could never ever have been said to have done anything but the right thing by himself and the legal profession. He gave hours of his time to the criminal law committee of The Law Society as it then was, not only because it was a field in which he was interested but largely because he was by far and away the acknowledged expert in the whole of the profession. He mentored many young lawyers on the broad aspects of the profession but reminded us all continuously of the important aspects that underlay the criminal law. He lectured for years at The College of Law in his specialty field and did so with great aplomb. I was one of those Presidents who had to deal with the ill-informed critics that having made an ill- informed judgement as to his honour, then wanted me to remove him from serving on Law Society committees and lecturing at The College of Law. No president including myself succumbed to such request. A fine and wonderful husband, lawyer, and contributor to the legal profession is how he should be remembered and not by innuendo and allegations that remain totally without any external evidence of truth. Roderick H.McGeogh, AO, LLB Corrs Chambers Westgarth
ISSUE 55 I MAY 2019 I LSJ 11
“A very good article, felt similar pressures in my latter years as a local government town planner. With the 24/7 world that we have now created I don’t think there is the ability to put a halt to it. Despite the obvious impacts on mental health constant staff availability seems to be the norm. I used to have people send emails over the weekend, and then ring on Monday morning to complain that I had not provided a response.” – Graeme Hewat, Facebook “Again, excellent article. Congratulations for bringing this out in the open and opening up the debate.” – Anne O’Donoghue, LinkedIn “Great article Kate and so, so important that these issues continue to be covered and receive attention. The industry and firms need to stop focusing on solutions that place the entire impetus on the individual (resilience, EAP, mindfulness) and actually take proactive steps to recognise, acknowledge and fix the environment that fosters burnout and mental health issues. Thanks for writing.” – David Vallance, LinkedIn “Solid story Kate. So good you should float it with the mainstream media I reckon. I think your summary nails the reasons. The focus on KPIs, continuous improvement and charging by the minute has everyone in panic mode. No more weekends off to break the cycle with a 24/7 expectation to be connected. So we’ve established the problem. What is the solution? How will change happen I wonder? And a big tick to the photographer as well. That is
a powerful image. Well done.” – Geoff Goodfellow, Facebook
“Thank you for sharing your personal insights into the most challenging aspect of practising law.” – Deborah Banwell, LinkedIn
12 LSJ I ISSUE 55 I MAY 2019
“A perennial. Like PTSD in emergency services, military and so on – recognition and action move at a snail’s pace.” Duncan McNab, Twitter “No, others have burnt out, left their employer, changed careers, moved etc, but the awareness of burnout comes from the realisation of the expectations upon employees. Three people once did the work of two and now it’s one person doing the work of three = burnout. No rest or time out.” – Sharon Bowen, Twitter
“Great idea! I can’t think of anything more useless than a lawyer who knows nothing about anything but the law.” – Richard Trewethey, Facebook
ISSUE 55 I MAY 2019 I LSJ 13
Legal experts at loggerheads over consent law review
BY AMY DALE
the Law Society of NSW recommended that current laws remain the same, as “section 61HA strikes the right balance between the complainant … and the accused”. However, then-President Doug Humphreys noted that “ongoing judicial education and attention to the difficulties which juries face … are also areas which require attention to ensure consistent and fair outcomes in sexual assault trials.” Section 61HA was most recently reformed in 2007. Before that change, an accused could not be found guilty
in an appropriate grading of offences, “recognising that knowingly sexually assaulting a person is a more heinous offence than honestly believing a person is consenting”. The Bar also submitted that the current maximum penalty of 14 years imprisonment for an offence of sexual intercourse without consent is “extremely high” for an offender who honestly believed it was granted. Community Legal Centres NSW has suggested that 61HA be amended to “clarify that consent can only be granted
Specialist sexual assault courts, restorative justice, and lower penalties for offenders who honestly believed their victim agreed to sex are among the proposals submitted to a NSW-led review into consent laws, which is now in its final stages. The NSW Law Reform Commission’s review of section 61HA of the Crimes Act 1900 began in May 2018 and is expected to deliver its recommendations to Attor- ney General Mark Speakman in coming months. However, many groups have told the Commission that amending this law will do little to address the systemic issue of sexual assault, its prevalence as a crime, and troublingly low conviction rates. Tim Leach, the executive director of Community Legal Centres NSW, told LSJ “there is a growing consensus that legislative reform on its own will not improve access to justice for victim-sur- vivors of sexual violence in NSW”. The review was sparked by the high-profile case of R v Lazarus , which saw two trials and two appeals in an exhausting legal process lasting almost five years. At the centre of the case against defendant Luke Lazarus was his knowledge of whether then 18-year-old Saxon Mullins had consented to having sex with him in the back alley of a Kings Cross nightclub in May 2013. Mullins’ courage in making her iden- tity public in a Four Corners feature by the ABC last year, and the grow- ing momentum of the #MeToo and #TimesUp movements, has led to calls for NSW to adopt an “affirmative con- sent” model. This would bring it into line with the current law in Tasmania. But many legal bodies remain resistant to enshrining an explicit verbal agree- ment in law. In its submission dated June 2018,
There is a growing consensus that legislative reform on its ownwill not improve access to justice for victim-survivors of sexual violence in NSW. TIM LEACH, EXECUTIVE DIRECTOR, COMMUNITY LEGAL CENTRES NSW
if they honestly believed the person consented, even if that belief was unrea- sonable. More than a decade on, many submissions say the current law does not go far enough. “Reframing the definition of consent will not solve the fundamental problem with sexual assault trials: the over-em- phasised focus on the conduct of the complainant, rather than a focus on the conduct of the accused,” wrote Professor Annie Cossins from the University of NSW in her submission. The NSW Bar Association has suggested the introduction of a new neg- ligent sexual assault offence with a lower maximum penalty. The Association told the Commission this would result
if a person says or does something to communicate consent”. It also asked the Commission to consider specialist sexual assault courts and increasing the use of restorative justice, currently only avail- able in NSW if an accused is convicted. Without a more holistic approach to improve the community’s under- standing of respectful relationships and consent, community lawyers fear the review will have little impact in address- ing the systemic drivers of sexual assault. “We need a meaningful, respectful community-wide conversation about the archaic systems and cultural norms around sexuality and sexual relationships which allow so much sexual violence to occur with impunity,” Leach said.
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ISSUE 55 I MAY 2019 I LSJ 15
Why did you choose to study law? Before I did law, I was a judge’s associate in the District Court and thought, “I could do this”. I chose to study at UTS and during my degree was working as a part-time legal secretary at Mallesons. When I graduated, my father and the judge I worked for said, “Go out to the coun- try and you’ll get fabulous experience – you’ll actually be thrown in the deep end and that first 12 to 18 months of experience will set you up.” So off I went and got thrown in the deep end. What was it like working in regional NSW in the 1990s? I was the litigation solicitor in Orange and the sole solic- itor in Blayney two days a week. I was shown all the files and told, “You’ll have to go through every single one of them and work out when the limitation period is about to expire and where they are all at in terms of the progress of the cases.” I think I had between 200 to 300 cases to work through. This was in the heyday of personal injury claims and common law claims. The internet is now 30 years old, so [back then] some of the city practitioners were starting to get emails, but there was none of that in Orange. It was all letters, faxes, carbon paper, kept files. Our secretaries used carbon paper. I decided I had had enough of big firms and had always wanted to have my own practice. So I took a six-month locum job out at Maroubra to get back into general practice again and realised it was interesting and really enjoyed it. Once I got back into doing commercial work, I bought a law practice from two women who were retiring. The deal we came up with was a transition [of business ownership] over a six-month period. It would be a 50-50, 60-40, 70-30, 100 per cent split of the business. They introduced me to the clients and it made perfectly good sense for everyone. I am a board of trustees member for the Australian Museum. I had my resume up on the NSW Government Boards and Committees Register and had known the Arts Minister for a number of years. I used to see him at luncheons and say, “I could do this, I could do this.” The minister rang me up one day and said, “Would you like to do it?” I said yes. You’ve got to ask. Every decent bloke will tell you, if you don’t ask nobody will know. If you never ask, you don’t get. You later chose to buy a legal practice in the city. What prompted this decision? How did you become involved with the Australian Museum?
SHAUNA JARRETT MEMBER, BOARD OF TRUSTEES, AUSTRALIAN MUSEUM
There are many skills a good lawyer should have, but being adaptable rates high on Shauna Jarrett’s list. Because she has spent her career specialising in change management, reinvention is not something she has shied away from. A dentist’s daughter who cut her teeth in law in Orange, Jarrett says she always wanted to run her own business. When the time came to purchase a practice in Sydney’s CBD in 2000, she dived right in and recalls the feeling of pride when she showed her dad the very first cheque generated by the firm. Jarrett explains to MELISSA COADE how being open to new opportunities has allowed her to flourish professionally and personally.
16 LSJ I ISSUE 55 I MAY 2019
BY PAUL MONAGHAN, SENIOR ETHICS LAWYER
fessional standards of confidentiality that apply to every lawyer. When undertaking any form of communication the guide to our professional obligations may be noted in Rule 9 of the Solicitors Rules: • The fundamental duty on a practitioner to: “not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not: 9.1.1 a solicitor who is a partner, prin- cipal, director, or employee of the solicitor’s law practice, or 9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes
of delivering or administering legal services in relation to the client, avoid any compromise to their integrity and professional indepen- dence …”; and • To observe the professional standards required and ensure that you must not: “… disclose any confidential informa- tion … in a crowd of fellow passengers in a train, bus, ferry or footpath …” by any action or statement. When lawyers wish to communicate in any form they need to ensure it is in a confidential setting and by appropri- ate confidential means. If you receive a call on your mobile only speak when you have a private and confidential setting.
Q: There have been a number of times while travelling on public transport that I have overheard a solicitor speaking loudly about apparently confidential matters on the telephone. What are our obligationswhen travellingor inpublic? A: Solicitors must exercise caution when contemplating any communication. This quote should be remembered: “There is a time and a place for everything … however, this is neither the time nor the place.” The temptation to speak of a matter due to urgency and using whatever means of communication available must be in the context of maintaining the pro-
SEXUAL HARASSMENT Lawyers say sexual harassment complaints ‘skyrocketing’
Responses to Sexual Harassment at Work, penned by a coalition of CLCs including Kingsford Legal Centre, Redfern Legal Centre, Women’s Legal Service NSW and the National Associa- tion of Community Legal Centres. The report was released in April and makes 45 recommendations to build a culture preventing sexual harassment at work. The report noted that complaints of sexual harassment to community legal centres were “skyrocketing”. Sharmilla Bargon, a co-author of the report and employment lawyer at Redfern Legal Centre, said CLCs received the brunt of employment law work related to sexual
harassment, because disadvantaged or marginalised clients were often seen as easy targets. “We regularly advise clients who have been sexually harassed, and are then fired or bullied when they report it,” Bargon said. “We also know that women with disability, LGBTQ+ people, Indigenous women, young people, and women of colour are more likely to experience sexual harassment. “We need harsher penalties for employ- ers who refuse to institute transparent and effective complaints procedures, and who victimise complainants rather than disciplining perpetrators.”
A coalition of community legal cen- tres (CLCs) has slammed the “en- demic nature” of sexual harassment in workplaces across Australia, sug- gesting the law is “broken” and fails to protect employees who fall prey to harassment at work. “From bakeries to banking firms, from supermarkets to law firms, sexual harass- ment in Australian workplaces is rife and remains under-reported,” said Kingsford Legal Centre LawReformSolicitor Maria Nawaz. “The law is broken and fails to protect workers from sexual harassment.” Nawaz was one of three authors of a new report, called #MeToo: Legal
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Amanda Crosbie Appointed to the Board of Directors Roberts Legal, Newcastle
RayMcClenahan Appointed to Managing Partner Taylor & Scott Lawyers
Adrian Corbould Appointed as Partner Turnbull Hill Lawyers
SamMiles Appointed to Head of Strata Bower Wood Lawyers, Wagga Wagga
Alice Byrnes Now Joint Owner and Director Cheney Suthers Lawyers, Orange
Dannielle Ford Now Joint Owner and Director Cheney Suthers Lawyers, Orange
Kirsty Evans Now Joint Owner and Director Cheney Suthers Lawyers, Orange
Donna Boyce Joined as Special Counsel, Litigation JemmesonFisher
Sophia Chung Joined as Solicitor, Litigation JemmesonFisher
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
CHARITY Pedal power ensures Amity’s legacy lives on
incurable brain tumour known as diffuse intrinsic pontine glioma (DIPG) in 2016. When tests came back neg- ative for epilepsy and the doctor saw the results of Amity’s CT scan, the medi- cal professionals wept for her. Doctors gave Amity about nine
comes with its own challenges.” Rogers said his small workplace took the impact of Amity’s death to heart when she passed last January. His boss gave him extended leave and financial assistance. He was also supported by the Solicitor’s Benevolent Association, which enabled Rogers to cover the extensive costs of caring for a child with a serious illness. In over 50 years there have been no significant medical advances in DIPG treatment given the sensitive location of the tumour in the brainstem.
A Sydney law firm will partic- ipate in a charity bike ride in memory of child can- cer patient Amity Rogers who tragically died of brain cancer at just six years old. A nine-person team from
Harris & Harris, where Ami- ty’s father Jackson Rogers works as a solicitor, will take part in the 12-hour “Endure for a Cure” bike race in May to raise funds for the Children’s Cancer Institute. “Obviously, we can’t help Amity, but we can try and help the next child,” Rogers told LSJ . “This is a chance to do something.” Amity was just shy of her fifth birth- day when she was diagnosed with an
months to live and immediately com- menced radiation therapy but Rogers explained that this was essentially pal- liative treatment. “As people, and perhaps particularly as lawyers, we like to solve problems. But with a child who is terminally ill, there is no adequate solution,” he said. “It’s just a question of making the most of what time is left. For people who are one step removed from the process, that
Donations to the Children’s Cancer Institute will help fund important research for a cure. You can support the team by visiting: https://bit.ly/2va86My
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ISSUE 54 I APRIL 2019 I LSJ 51
CAREERS FAIR Future looks bright for Australian lawgraduates
FAMILY LAWREVIEW Family law reviewhas 60
The Australian Law Reform Com- mission has released a compre- hensive review of the family law system for the first time in more than 40 years. The final report, which was released in early April, made 60 rec- ommendations including that the Federal Government consider estab- lishing family courts in “all states and territories” and abolish first-in- stance federal family court hearings. This would help alleviate the extreme backlog of cases currently waiting in the family law system. Law Society councillor and family lawyer Brett McGrath previ- ously told LSJ that some applicants with family court matters will be forced to wait up to four years to be heard. “Just the other day, a magistrate in the Federal Circuit Court told me he is listing matters for 2023,” McGrath said. The landmark report also rec- ommended that a new national in- formation-sharing framework be established to cover police and child protection records, so that an of- fender’s history of domestic violence would not be lost between states. President of the Law Society of NSW Elizabeth Espinosa said she “looked forward” to considering the report’s recommendations and work- ing with the newly-elected State and Federal Governments on how to best reform family law nationally and de- liver meaningful changes. Find the report at: alrc.gov.au/inquiries recommendations for overburdened system
BY KATE ALLMAN
Representatives from the Law Society of NSW offered advice to students at the 2019 Law Careers Fair
sends representatives to speak with the students and answer their questions. “The feedback we have received is that students learn far more about working in the law from this kind of face-to-face in- teraction with young lawyers than they ever could from a website or pamphlet.” Where law graduates have perhaps been disheartened in past years by news stories of an “oversupply” of law gradu- ates in what was thought to be a shrink- ing jobs market, there was excitement in the air at this year’s fair. Many were en- couraged by news that Australia’s top-tier firms were upping their graduate intake numbers after the explosion in work due to the 2018 banking royal commission, and that other businesses like consulting and accounting firms were developing dedicated legal departments. “I’m really interested in information technology and am focusing on cyber law in my PhD thesis,” said final-year post-graduate law student Callum In- gram, 25. Ingram said he hoped to find a role in a “forward-thinking” firm that emphasised the importance of integrating legal technology with business processes. Those who missed attending the fair can download the 2018-19 Law Guide to graduate careers online. Visit legalvitae.com.au for more information about clerkships and graduate roles.
Law firms are diversifying, accounting firms want lawyers, and a rise in new legal technology is creating new jobs for law graduates, students were told at a sell-out law careers fair in Sydney on 29 March. More than 1,500 law students from universities across NSW packed into the International Convention Centre in Sydney for the 2019 Sydney Law Ca- reers Fair, an annual event hosted by the Law Society of NSW and NSW Young Lawyers. It was the biggest turnout in the fair’s history, as presenters from more than 40 organisations including top-tier law firms and Australia’s big banks of- fered career advice and information to students. Many presenters emphasised the growing number of roles available to graduates in a diversifying legal market. Victoria Graves, manager of NSW Young Lawyers and Graduate Services, said the fair provided a unique opportu- nity for students to speak to young law- yers who had walked the same path as them and had experience in the various professions they chose to pursue. “The legal industry is changing rapidly, and new jobs are emerging in different or- ganisations, so choosing a career path can seem quite overwhelming for students,” said Graves. “The great thing about the law careers fair is that each organisation
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INDIGENOUS LAW UNSWcelebrates 100 Indigenous lawgraduates
UNSW in 2016 and now works as a solicitor for Legal Aid NSW in Sydney, said that o ering Indigenous students pathways to legal education and careers was so important to empower First Na- tions communities. “Statistically, First Nations Australians are the most oppressed communities by our laws – we have the highest proportion of Australians in prison and have seen generations of disadvantage,” Reid said. Reid noted that including Aboriginal perspectives in law creation and reform had to begin at law school – by including Indigenous perspectives in the classroom. “If we can use legal education as a tool to include Indigenous Australians and embed Aboriginal perspectives into our laws, we can build a nation where we co-exist.”
The University of NSWhas become the first university to graduate 100 Indige- nous law students in an Australian-first for other law schools to follow. UNSW law school marked the mile- stone with a gathering of Indigenous alumni and families on 29 March at its Kensington campus. e dean of law George Williams said it was a “signi - cant milestone” that deserved celebra- tion, but that there was still a long way to go to accelerate the pace of change for Indigenous people in Australia. “ e graduation of 100 Indigenous students from UNSW Law is a signi - cant milestone. ese students have gone on to extraordinary careers, ranging from high judicial o ce through to political and community service,” Williams said. “In re ecting on this achievement, we
(From left) UNSW Adjunct Associate Professor Carolyn Penfold, Professor Megan Davis, Damien Miller and Terri Janke.
must renew our e orts not only to edu- cate the next 100 Indigenous students, but to accelerate the pace so that the his- toric underrepresentation of Indigenous peoples in the legal, political and other sectors of public life is redressed.” Teela Reid, who graduated from
Welcome to Audi Corporate
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For the full round-up of Law Society advocacy, see page 68.
Guidelines needed for Stolen Generation reparations
April Fool’s prank backfires on Texan judge A newly-elected American judge from Houston has accidentally resigned in an April Fool’s joke gone wrong. According to reports from local TV station KHOU 11 News, Judge Bill McLeod of the Harris County Civil Court jokingly shared plans on April Fool’s Day that he intended to run for the Texas Supreme Court. The effect of the April 1 social media post was an automatic resignation by Judge McLeod. Under Article 16, Section 65 of the Texas Constitution, when a judge announces candidacy for another office, that notice “shall constitute an automatic resignation of the office then held”. Judge McLeod was sworn in last November after winning 55 per cent of the race for office. His supporters have said they will petition county commissioners to allow the judge to retain his office. Protecting the family name The new wife of Canadian pop musician Justin Bieber, Hailey Bieber (née Baldwin), has filed trademark paperwork for the words “Bieber Beauty”. According to TMZ, Mrs Bieber intends to use the phrase to market a cosmetics line. In September 2018, the 22 year old applied to trade- mark the name “Hailey Bieber”. An accomplished influencer on Instagram, Hailey is already affiliated with several makeup lines. She is the face of Bare Minerals and has appeared in L’Oréal Professionnel advertisements. Commentators speculate that the legal moves being made by Hailey signal plans to launch her own celebrity beauty line, adding to the fash- ion brand that was launched by hubby Justin earlier this year. Law in KimKardashian’s sights According to a report by Vogue, KimKardashian is nearing the end of her first-year apprenticeship with a San Francisco law firm. The reality television star told the magazine that if she passed the California Bar exam in the US summer, she would continue the four- year apprenticeship and join the legal profession in 2022. California is one of the few states where people can sit the bar exam without having competed a law degree. If Kardashian does become a lawyer, she will be following in the footsteps of her late father, Robert, who was part of OJ Simpson’s legal defence team in his 1995 murder trial. Simpson was acquitted.
The Indigenous Issues Committee has called for reparations guidelines to be introduced for entitled Stolen Generation survivors and descendants. The committee said although “some prog- ress has been made” regarding the ineligibility of those removed by the Child Welfare Board (rather than the Aboriginal Protection Board of Aboriginal Welfare Board), greater clarity was needed. The recommendation was made as part of a Law Society submission to the Stolen Gen- erations Advisory Committee, along with advocacy that the descendants of eligible sur- vivors who had passed away should remain eligible for reparations. TheBusiness LawCommitteehas supported a two-pronged approach to remove regulation 7.1.33 of the Corporations Regulations 2001 and extend the general obligations under section 912A of the Act to claims handling. In a submission to NSW Treasury, the com- mittee agreed that post-contractual obligations were critical in the case of insurance products. The Law Society added such an approach would ensure fair and timely claims handling and settling. Court diversion under ss 32 and 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW) has been raised by several Law Society committees in a submission to the LawCoun- cil for an ongoing inquiry into mental health. The inquiry commenced in November to con- sider “how mental illness can affect all aspects of a person’s quality of life including physical health, social participation, education, employment and financial status”. Support for Indigenous Austra- lians with mental impairments in the system was also raised. Post contract obligations key for insurance products Law Society flags access challenge for court diversion
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