LSJ May 2020
Is NSWnowa police state? A look at how the raft of COVID-19 rules are impacting civil liberties Camaraderie and concern With the justice system turned on its head, how are lawyers coping with change? Cruisin’ for a bruisin’ How cruise ships have highlighted the complexities of international law Courting technology How well have our courts adapted to the pandemic’s forced innovation?
ISSUE 66 MAY 2020
A deep dive into howCOVID-19 is a ecting you, the profession, and the rule of law SPECIAL EDITION Lawin the time of corona
PLUS: UPDATES ON PELL V THE QUEEN, EMPLOYMENT, CRIMINAL LAW & MORE
This year we have been faced with many unprecedented challenges. Foodbank NSW & ACT played a crucial role during the bushfire crisis that devastated communities across the country earlier this year. Now, we need them more than ever as we tackle the COVID-19 pandemic. As the ‘pantry for Australian charities’, Foodbank distributes 300 tonnes of groceries a week. Without their help, millions of vulnerable Australians would go hungry. So, thank you Foodbank, for all that you do to help in a time of crisis. As the Law Society President’s nominated charity for 2020, we are proud to join you in the fight against food poverty. DONATE TODAY: lawsociety.com.au/donate ph: 02 9756 3099 THANK YOU, FOODBANK
ISSUE 66 I MAY 2020 I LSJ 3
24 Hot topic
36 A jolt to justice
Can you sue a country for a global pandemic? Experts reveal if lawsuits against China could work
It’s a new era of remote justice. Kirrily Schwarz asks what we can learn for a post-pandemic future
Lawyer, advocate and best-selling author Sarah Hopkins explains how her court work inspired her latest novel
26 Lunchwith a Judge
40 No cruise control
Biosecurity, public health orders and law of the sea: Amy Dale explores the Ruby Princess mess
Judge Robyn Tupman dials in for a lunchtime chat on how the bench is handling the COVID-19 crisis
Zara Michales o ers a killer at-home isolation workout and tips for how to make the most of your daily exercise
30 Cover story
Kate Allman on the unprecedented legal changes and police powers, and their impact on our civil rights
Kate Allman takes a closer look at the important issue of eye health during lockdown
Treat your isolation wanderlust with Kate Allman’s guide to the wild and luxurious ski fields of Jackson, Wyoming
ISSUE 66 I MAY 2020 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News
78 Family law
The latest key developments in advocacy and law reform
A common sense approach to parenting during COVID-19 80 Business and human rights Six compliance steps to establish a robust modern slavery program
The courts and the role and limits of technology during the COVID-19 pandemic
23 Expert witless 23 The LSJ quiz 28 Out and about 44 Career matters 46 Doing business 47 Career coach 50 Health 58 Youwish 60 Books and lifestyle 62 The case that changedme
82 Wills and estates
68 Criminal law
Practical tips for dealing with digital records in estate planning
Understanding the High Court’s acquittal of Cardinal George Pell 71 International law
84 Wills and estates
An examination of the suspicious circumstances rule in estate litigation
Cruising through the Coronavirus: a journey through international law
86 Employment law
Recent decisions on application of the general protections provisions of the Fair Work Act
74 Criminal law
Could the ‘Great Writ’ of habeas corpus lie to release prisoners at risk of COVID-19?
88 Employment law A helpful guide to the
76 Criminal law
Government’s JobKeeper program
The fascinating High Court decision extending the law of causation in homicide cases
91 Case notes
94 Library additions 106 Avid for scandal
The latest High Court, Federal, family, criminal, and elder law and succession judgments
4 LSJ I ISSUE 66 I MAY 2020
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ISSUE 66 I MAY 2020 I LSJ 3
A word from the editor
Hello from a very different reality. Things have certainly changed since we brought you the last edition of LSJ . Here at the Law Society, we have discovered that producing a magazine remotely – while being entirely doable, as you can see – certainly has its challenges. Not being able to shout something across the office or wander over to someone’s desk to ask a question, or even just enjoy the organic development of
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor
ideas that comes from long chats over coffee, can feel frustrating and stifling. Most people I speak to find this whole experience very up and down. Some days feel simply fantastic, as lunchtime runs in the sunshine, extra dog walks, and the ability to be hyper-productive in tracksuit pants seem like rare gifts. On other days, our homes feel like cages and we would do anything just to go to the office to see our colleagues, visit friends and family, or sit at the pub drinking an ice-cold beer. All in all, though, I have found this experience to be one in which bonds have forged much closer, camaraderie has strengthened, and gratitude and appreciation for what we have here in Australia has grown exponentially. It is hard to see how things will ever be the same on the other side of this pandemic, but part of me thinks that is probably a good thing. Perhaps a change of pace is exactly what many of us have needed for far too long.
Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton 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 © 2020 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.
KATE ALLMAN Cover story p30
MARK TEDESCHI QC Criminal law p76 Mark is a barrister and former Senior Crown Prosecutor for NSW. He is also known for his true crime books. Here, he examines the High Court’s decision in Swan v The Queen and its implications for the law of causation in homicide cases.
JACK DE FLAMINGH Employment law p88
AMY DALE Feature p40
Kate is a journalist, multimedia producer and LSJ ’s online editor with a double degree in law and journalism from UNSW. In this issue, she reveals the civil liberties and legal
Jack is a partner at Corrs Chambers
Amy is a journalist at LSJ. She is a published true crime author and a former policy and media adviser for the NSW Government. This month, she explores the myriad legal and biosecurity issues surrounding the Ruby Princess affair.
27,100 * *AUDITED MARCH 2019 DISTRIBUTION
Westgarth and regular LSJ contributor. In this edition, he and James Connolly present the first in a two-part series examining the details of the Federal Government’s new JobKeeper program.
IsNSWnowapolicestate? A lookathow the raftofCOVID-19 rulesare impactingcivil liberties Camaraderieandconcern With the justice system turnedon itshead, howare lawyerscopingwithchange? Cruisin’forabruisin’ Howcruise shipshavehighlighted thecomplexitiesof international law Courtingtechnology Howwellhaveourcourtsadapted to thepandemic’s forced innovation?
ISSUE66 MAY 2020
rights under threat due to COVID-19 restrictions.
Adeepdive intohowCOVID-19 isa ectingyou,theprofession, andtheruleof law SPECIALEDITION Lawinthe timeofcorona
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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Cover Design: Alys Martin
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NEXT ISSUE: 1 JUNE 2020
6 LSJ I ISSUE 66 I MAY 2020
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W hen I embarked on my term as President of your Law Society in January, I could never have envisaged the depth and breadth of the challenges and disruptions we would encounter in 2020. From the aftermath of drought, bushfires and floods on Australian soil, we have moved, almost without pausing for breath, to a global coronavirus pandemic.
Now, six months after the virus was first detected, there is no facet of economic or societal activity that is not affected by COVID-19. Working from home, loss of income, and physical distancing are creating challenges for us all. The Law Society has certainly experienced an increase in the volume of calls and emails from legal practitioners seeking clarity on the changes relating to COVID-19 as well as information on the delivery of legal services and the sustainability of law practices during the lockdown. Our intent, in reducing Law Society membership fees to just $10 for 2020/21, was to provide our solicitor members with both financial relief and a sense of certainty about remaining connected with our legal community at a time when we all need it most. As the COVID-19 pandemic has continued and physical distancing measures have increased, we’ve had to further adapt our modus operandi for the benefit of members. And we will continue to do so in the coming weeks and months. It has been heartening to witness the resilience of our profession during COVID-19, cognisant as we are of the difficulties many legal practitioners are facing during these very testing times. We also want to ensure our members have access to support services as well as practical advice relating to mental health and wellbeing, all of which is housed on a dedicated wellbeing portal on our website. The practice of law is challenging at the best of times, and supporting the mental health and wellbeing of our profession has always been a major priority for the Law Society. The current COVID-19 climate presents us with an increased urgency to provide additional mental health services to NSW solicitors. To this end, the Law Society is prioritising work on a tailored package of enhanced mental health services which will be available for all NSW solicitors during the COVID-19 pandemic and beyond. I look forward to providing more details in due course.
Richard Harvey , President, Law Society of NSW
8 LSJ I ISSUE 66 I MAY 2020
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ISSUE 66 I MAY 2020 I LSJ 9
Mailbag LETTERS TO THE EDITOR
ISSUE65 APRIL 2020
Thank you I’m writing to express my deep gratitude to [President Richard Harvey] and team. Firstly, for reducing the Law Societymembership fee, and secondly for thewonderful daily email updates. I set up my own practice in February 2020 after working for a large organisation for 20 years. It has been an exciting although somewhat daunting transition, made more so by the pandemic. I would like you and your team to know how important the daily email updates have become to me and I’m sure many practitioners. No doubt they are an enormous amount of work but be assured they are helping us all so much. Not just because of the real time updates regarding vital changes, but because they inspire a sense of being supported and being part of a larger team all working together to get through this crisis. I have always enjoyed receiving my LSJ each month and with the reduction to our membership fees I will be able to remain a member and keep up to date and connected. I’m truly grateful. Madeleine Schneider, Executive Director & Principal Solicitor, Accredited Specialist in Criminal Law
25/3/20 4:25 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.
What about Whitlam? Could I respectfully submit that the answer in the negative to Question 9 of your April quiz is wrong? From my recollection, the one and only EG Whitlam, AC, QC, led the Opposition throughout the entire 1969- 1972 Parliament before his glorious ascension to the Government benches. Andrew Fraser How far we’ve come I was pregnant with my first child when I started my firm – a small home office, inside our small living room. When my son was born, I’d try to make calls only while he was sleep- ing. If I received a call while he was awake, I’d run into my room, close the door and pray to God that the person I was speaking with wouldn’t hear him crying. I’d be mortified if they did. Today, while I was having a video conference, my now eight-year-old first born walked into my office, dressed up in some sort of Star Wars-inspired costume, and said, “Come to the dark side”. Everyone laughed. They said hi to him. He said hi back. He was so happy. They were so happy. The conversation was relaxed. I wasn’t mortified. These times are challenging. They’re scary and lonely ... but amid all the stress, the confusion, the tears
and the fears, I think we’ve also become more relaxed. We’ve become more accepting of things that are unconventional. We’ve come to understand that not conforming to customary standards might just be okay, that a small glitch in the system will not destroy the big picture. I just wish I could turn back time to eight years ago and spend some more time hearing my baby cry. Alexia Ereboni Yazdani, Hillside Legal Anthony Jucha’s achievements at the World Rockstacking Championships provide a fine example of the creativity, com- petitive spirit and desire for excellence with which our pro- fession prides itself. However, the concept of rockstacking gave me a nightmare vision of hordes of enthusiastic lawyers leaving no stone unturned around our foreshores. As well as providing material for recre- ational construction, foreshore rocks and driftwood provide safety and shelter for a wide variety of invertebrate species. Moving rocks damages or destroys the homes of these animals. The frequent and sys- tematic disruption of foreshore materials is like clearfelling an old-growth forest and replac- Leave the stones unturned
ing it with a pine plantation. Let us celebrate Anthony’s victory but encourage him to move onto a new challenge. Richard Brading Clarifying the cake The article on religious discrim- ination bill (April 2020 pp57-59) claims US baker Jack Phillips “refused to provide” a wedding cake to a gay couple. It should be noted that the baker provid- ed custom hand-made cakes – not off-the-shelf, ready- made cakes (for which he’d have no basis to refuse serving the customer). The baker also refused Halloween cakes and adult-themed cakes as they were against his legitimate religious moral conscience to make them, even if the purpos- es were legal. Religious persons should be entitled in a free soci- ety to teach religious morals, especially if there are spiritual or eternal consequences for disobedience. Catholics teach that using contraception is sinful and most people just ignore such claims. Likewise, traditional religions teach that any (consensual) sex outside of male-female marriage is sinful with eternal consequences (unless repented) even though fully legal. Religious persons should be free to teach such counter-cultural religious moral teachings, to be able to instruct
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! Madeleine Schneider has won lunch for four. Please email: email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 66 I MAY 2020
LETTERS TO THE EDITOR
those who want to know how to live in accordance with that religion. But, alas, because sexual orientation is considered a “protected attribute” suddenly religious moral teaching is to be ruled as unlawful on the basis of it being “discriminatory” – resulting in quasi censorship on religious speech. For the record, religious moral teach- ing on sexual matters concerns not sexual orientation but sexual practice – and since any legal sex must be consensual, it follows that religious teach- ing merely informs about what sex is to be not consented to (or refrained from i.e. repented of) to uphold the tenets of that religion. Everyone is free to ignore religious moral teach- ings – but not to insist that such teachings are, by their nature, “harassing” or “vilifica- tion” simply because they do
not endorse LGBT practice. Polly Seidler, Darlinghurst
and Aboriginal children. First- ly, risk assessment tools are irrelevant when it comes to children and Suspect Target Management Plans (STMP). Of course, children who are in out-of-home care and have been excluded from school are at high risk, as are Aborig- inal children and children with cognitive impairments. Statis- tics tell us that they are more likely to become involved with the criminal justice system. However, STMP is intended to reduce (adult) recidivism and will not address the complex issues that these very disad- vantaged young people are facing during their transition from childhood to adulthood. Secondly, a 9-year-old child is not old enough to be charged with a criminal offence. The fact that this child was placed on STMP and became an “active target” is unconsciona-
ble and clearly indicates that this program is being used in an “unreasonable, unjust and oppressive” manner. Children are searching for an identity and for acceptance by a group as they mature. Forcing them into the role of “offender” and “prison inmate” when they are very young simply labels them accordingly and often seals their fate. We need to use those positive strategies and expose marginalised children to prosocial groups and responsible adults. How disturbing to read that the one young person referred to a PCYC programwas non-Ab- original, when racism is a possible source of bias, and the more disadvantaged the children are, the more support they need. Dr Meg Perkins PhD BA Hons (Clinical Psychology) MAPS
An idiomatic antithesis The article “Informal wills; an informal response to these things” ( LSJ April) arguably raises the sentiment in what has been described as an “idiomatic antithesis” viz: the letter of the law versus the spirit of the law. One can only speculate whether a deceased would be pleased to know that his/her last expressed wishes were frustrated because a will failed to comply with statutory formal requirements. Edward Loong
A psychologist’s perspective
Having written psychological reports for the courts for some 30 years I have two comments to make on the LECC report on intrusive policing tactics
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ISSUE 66 I MAY 2020 I LSJ 11
Mailbag LETTERS TO THE EDITOR
“Great decision. This will help a lot of practitioners. I am proud of the Society for taking this initiative.” – Jennifer Pierno, Facebook
“Thank you, this has assisted many practitioners and we thank you for your support during these unprecedented times.” – Maria Buongiorno, Facebook “What a marvellous way for the Law Society of NSW to support members. This measure, the daily email updates and the COVID-19 FAQs page are all brilliant ways the Society is leading from the front and providing genuine value to members. Very proud to be a member.” – Thomas Russell, Facebook “Relaxing the rules to comply with CPD units and the reduction on the membership fees are very welcome in these di cult times! Thank you!” – Iran Dias, Facebook “Congratulations to the President and Councillors of the Law Society. This is the most proactive approach I have seen from any member-based professional organisation I have seen to COVID-19 and will make a real di erence to practitioners and their businesses.” – Natalie Scanlon, Facebook “This is such an excellent and compassionate decision in these times. Very much appreciated – thank you. Stay safe.” – Leanne King, Facebook
“Can you sue the USA for illegal invasions of sovereign countries? International law is often no more than a theory and might is right in most cases.” – Bart Jano, Facebook
“Not a chance. If anyone can sue China then they can sue the USA as well.” – Richard Trethewey, Facebook
“This is so good!” – Joanne van der Plaat, Twitter
“Interesting legal question.” – Chan Chee Kong, Facebook
“A fantastic step by @LawSocietyNSW to support their members. Thank you!!” – Lucy Sunman, Twitter
“China does not accept the compulsory jurisdiction of the International Court of Justice. For that matter, the United States doesn’t accept it either.” – Davis Davis Davis, Facebook
“Thank you so much! As a newly admitted solicitor, my applications to employment are on hold. I was considering whether to keep my membership this year. This is truly helpful.” – Lixia Liu, Facebook
“Interesting – we will all have to wait to see whether it is possible.” – Tabetha Hilliard, LinkedIn
“Thank you, this is a wonderful gesture.” – Karen Rands, Facebook
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LETTERS TO THE EDITOR
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ISSUE 66 I MAY 2020 I LSJ 13
In the movie The Castle , what was the name of the QC whomDenis Denuto instructed in the High Court to save the Kerrigan family’s home? We’ll get to the answer in a minute. For now, the most important thing to know is that Friday night drinks are officially back. NSW Young Lawyers and the Law Society of NSW are presenting Happy Hour, a weekly trivia extravaganza live streamed on Friday evenings, designed to keep lawyers smiling while social distancing. The Chaser’s Julian Morrow will host the event live on the NSW Young Lawyers Facebook and Instagram accounts, posing a series of questions every Friday from 5-6pm for eight weeks, starting on 24 April. Morrow – who previously worked as a lawyer – is a seasoned trivia master. He has delivered quizzes on ABC’s Radio National and as part of his own legal ethics course, Ethical Pursuit, for lawyers notching up continuing professional development points. He said these experiences formed the basis for Happy Hour, and may or may not inspire some of the questions. “I’ve long enjoyed the quiz format as a punter, going out to pubs with friends to do trivia and also presenting quiz nights over the years,” Morrow told LSJ . “It’s a convenient format for conveying a lot of information in a fun way that starts conversations, and it’s good when there’s some competition.” People can join as individuals or teams, answering questions live from their desktop computers or mobile devices. A leaderboard will be updated each week and each weekly winner will receive a prize. At this stage, the questions are closely-guarded secrets. are back! Hosted by comedian JulianMorrow BY KIRRILY SCHWARZ LIGHT RELIEF Friday drinks
When pressed, Morrow simply states that legal biographies provide interesting information. You can do whatever you like with that information, but if you were thinking about breaking out your copy of David Marr’s biography on Sir Garfield Barwick (a former Chief Justice of Australia), now is probably the time. Victoria Graves is the Manager of NSWYoung Lawyers and Graduate Services at the Law Society of NSW. She explained it is a wellbeing initiative that doubles as a fun networking opportunity, which will help make up for the fact that many in-person events have not been able to go ahead due to social distancing guidelines. “A lot of people were saying they were pretty sad they’d be missing out on after-work catch- ups on Fridays, so I thought this would be a good way to have a happy hour at home that would simulate a pub quiz, but with a legal twist,” said Graves. “There will be funny, cool trivia topics where everyone can show off their chops a bit. Every- one can be competitive in the name of fun. It’s a great way for everyone to wind down and enjoy each other’s company at the end of the week.” The Happy Hour trivia challenge is free to join and open to everyone: Young Lawyers, members of the Law Society, and anyone else looking to test their knowledge against the in- dustry’s best and brightest. Answer: In case you were wondering, it was Lawrence Hammill, played by Charles “Bud” Tingwell.
“A lot of people were saying they were pretty sad they’d be missing out on after-work catch-ups on Fridays, so I thought this would be a good way to have a happy hour at home that would simulate a pub quiz, but with a legal twist.” Victoria Graves, Manager of NSW Young Lawyers and Graduate Services at the Law Society of NSW
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NEWTHISMONTH Your COVID-19 questions answered
How can I witness documents? How do I manage remote working and supervision? The Law Society of NSW has created an online hub to distribute relevant COVID-19 information, updates and fre- quently asked questions. Head to lawsociety.com.au/covid-19 Seeking mentors and mentees Applications are open for the Law Society of NSW 2020 mentoring programs. There are three programs open for mentoring graduate law- yers, law students, young lawyers and women lawyers. To apply as either a mentor or mentee head to lawsociety.com.au/mentoring Practising certificate and membership renewals open Online lodgements for 2020- 21 practising certificate and membership renewals are now open.The online process is relatively simple and fast via lawsociety. com.au/membership. If you need assistance, the Law Society’s registry team members are happy to walk you through the process over the telephone on (02) 9926 0156.
Shane Fitzsimmons Commissioner of the new disaster recovery agency, Resilience NSW
Think of anything in your community that happens well and you will find it’s underpinned by volunteerism. It’s a critical part of the social fabric.
ISSUE 66 I MAY 2020 I LSJ 15
sixminuteswith MELINDA UPTON
Melinda Upton, former co-managing partner of DLA Piper Australia, is the newly appointed Chair of Minds Count Foundation. She tells FLOYD ALEXANDER-HUNT why mental health in the legal profession is more important than ever.
How do you feel about this important new role? I’mhonoured to take on the role and passionate about ensuring the foundation continues to be the strong, collaborative voice the profession needs to achieve systemic change. Early on in my career, I recognised the legal profession has very high rates of mental illness. Statistically, about 30 per cent of lawyers will su er distress due to depression. roughout my career I’ve led a number of initiatives to help reverse those statistics and will continue to do so. What are you hoping to achieve? e work we’re doing will be as important as ever in 2020 and beyond as COVID-19 continues to sweep the globe. e impact of the pandemic will be felt for years and we must be prepared for the changing needs of our people as the impact evolves. at includes emotional support, nancial support, mind and body connection, purpose and self-awareness. is is a whole new way of working and we will have to nd what the new norm is. Supporting each other and communicating regularly is absolutely crucial. My personal view is we are better together than on our own. Routine is key. Try to include breaks throughout the day, exercise, access to sunlight, and virtual contact with people from your work or family. It’s also essential to switch o at the end of each workday. I encourage people to observe any changes in theirmental health and seek support where needed. Leadership needs to be supportive and accommodating of family needs during this period. Do you have any tips for how to stay on top of our mental health during this period?
What has the current global situation taught you? It has demonstrated to me just how resourceful the human spirit is. e ability to adapt to new technologies andmaintain engagement has been incredibly impressive. I’m proud of my team and the profession at how they’ve responded to the situation. As the weeks and months roll on, we run the risk of productivity going down and will have to come up with new ways to maintain engagement. I think it’s brought the innovative spirit right to the front and we may not go back to doing things the way we used to. Do you have any advice for law firms? Before COVID-19, life was really busy and there wasn’t much time for re ection. We really encourage rms to look beyond their immediate work and carry out some horizon spotting and business planning. What will the new issues be? What will clients have to navigate? What will we do in terms of providing better service? Answering those questions will get us ready to be at our best and to provide value to our clients when we do come back. Have you found any positives in this experience? I’ve loved spending time with my husband and two children. I’ve also enjoyed being able to maintain my preferred exercise routine. I’ve attempted to kick o French lessons, which I’ve wanted to do for a long time. Unfortunately, I had a false start, so I’ll start next week. I always say in di cult times “be kind to self and kind to others” so I’m being kind to myself and deferring it until I’m ready.
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The Law Society of New SouthWales has online wellbeing resources to help you manage during these difficult times.
These unprecedented times have had a critical impact on our livelihood and wellbeing, and with each day new challenges arise. We are here to offer support with a growing range of resources and tips to help you through the COVID-19 pandemic and beyond.
Visit our wellbeing portal today. lawsociety.com.au/wellbeing
ISSUE 66 I MAY 2020 I LSJ 17
BY LINDEN BARNES, SENIOR ETHICS LAWYER
Q: Are there any ethical issues in costs?
A: There are so many ways in which being paid to do our job has potential ethical ramifications. I was reminded of this because this is my first column when I am joined by the wisdom of my costs colleagues and their column. Let’s start with the one they raise (shameless cross-promotion) and then two others to form a top three: 1. Conflict – as you can see from the costs column, putting on a caveat can be a conflict between us and our client. To give another example, and this can arise for those of us working in-house, there could be a conflict if
our pay is linked to the success of a project. How might that influence us advising that the project is unlawful and must not proceed? 2. Undertakings – always best to avoid. If we make a promise, then we are absolutely bound to it, even if we are prevented from complying because of someone else’s actions. That is why we must not give an undertaking that we cannot control. So, for costs, there are two important points to remember. First, we cannot control our client. Second, they are the payer, not us.
3. The no-contact rule – is it appropriate for us to directly chase a former client for payment rather than do so via their new solicitors? There is considerable disagreement on this point. However, as with so many ethical issues, courtesy wins out. It is best and courteous practice to go via the new solicitors. In this world of social distancing, ethics are not breaching the rules by being integral to costs. The Ethics Department hopes you are coping well in these difficult times.
BROUGHT TO YOU BY THE LAW SOCIETY OF NSW COSTS COMMITTEE
Q: My client has not paid my fees. Can I lodge a caveat over his/her home?
A: It can be unlawful, and can potentially constitute a conduct issue, for a practitioner to lodge a caveat over a client’s property to secure fees. The first point to note is that it is unlawful for anybody to lodge a caveat unless a valid “caveatable inter- est” exists – a circumstance which must be verified by statutory decla- ration. Solicitors who lodge caveats improperly (whether for themselves or others) can face disciplinary conse- quences (see for example Law Society of NSW v Manolakos  NSWC-
ATOD 54, Law Society of NSW v Young  NSWADT 264). It is not a complete solution for practitioners to include a “charging clause” in their costs agreements, under which clients agree to charge their property as security for payment of costs. Although this is a common method used by commercial suppli- ers to obtain security, solicitors are not ordinary suppliers. By virtue of their statutory and ethical duties, they are in a unique position. The inclusion of a charging clause in a client costs agreement has been
found to give rise to an “obvious” conflict of interest, and to exceed the statutory right to “take reasonable security” for legal costs.The solicitor’s fiduciary duties also loom large, even if the fiduciary relationship has not commenced at the time the arrangement is proposed. Long story short, solicitors must approach the question of security for legal costs with enormous caution. As the authorities show, the cost of getting it wrong is not only invalid security, but also adverse costs and disciplinary action.
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More than 1,000 high school students across NSW will have the chance to learn from a series of lectures by expert solicitors, focusing on the judicial system across a six-week program. e program was launched after the Law Society was forced to disband its NSW Mock Trial Competition for 2020, a rst for the program since its inception in 1981, due to the restrictions imposed by the spread of COVID-19. With a need to adapt to the current environment and create new online opportunities for students in Years 10 to 12, the Future Young Lawyers Program will cover the weeks the Mock Law programs would have previously, with an opportunity for students to learn from experienced and knowledgeable solicitors. e program will be hosted on Zoom and cover topics such as an introduction to Australian legal systems, advocacy, law reform, policy and ethics, as well as mock trial topics to keep Mock Trial teams on their toes while the competition is halted. Students who complete the program will undertake an online quiz at the end of each lecture and receive a participation certi cate. e student with the highest overall quiz score will receive a “Top Student” certi cate.
EDUCATION The future is now: Law Society launches Future Lawyers Program
Share your knowledge and experience with the next generation of legal professionals
For as little as one hour a month, you can develop your leadership skills while having a positive impact on the career of another lawyer. Apply now to become a mentor in our graduate, young lawyers or women’s mentoring program. Applications close 5 June 2020. Check the eligibility criteria to find the right program for you at lawsociety.com.au/mentoring
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ECONOMY Pay cuts and reduced hours: lawyers to share economic burden of COVID-19
BY LEMA SAMANDAR
Law firms are taking a major financial hit and cutting employee salaries as the eco- nomic crisis caused by COVID-19 deepens. International law firm Ashurst has announced staff would reduce their pay and hours by 20 per cent from 1 May, with the exception of employees working in busy parts of the business and those subject to awards under the National Employment Standards. The multinational flagged that partner pay would be cut by 20 per cent for the next six months, and salary reviews for this financial year would be deferred until November. The announcement comes as law and professional services firms across Australia slash jobs to protect their businesses against the economic fallout of COVID-19. Clay- ton Utz has instituted a hiring freeze and said it would consider reducing employee hours if economic conditions worsen. At the same time, 13 of Australia’s larg- est firms, including Ashurst and Clayton Utz, have jointly applied to the Fair Work Commission seeking changes to the Legal Services Award that would enable them to reduce the hours of employees covered by the award during the COVID-19 crisis. The award does not cover qualified lawyers but does include clerks, graduates undertak- ing practical legal training, paralegals and administrative staff. Global Managing Partner of Ashurst Paul Jenkins said these were difficult deci- sions, but they were necessary to avoid redundancies. “As a global business, Ashurst like many others is affected by the economic
disruption being caused by COVID-19,” Jenkins said. “The 80 per cent work pattern will help manage capacity levels of the busi- ness in coming months. “We do not underestimate the impact they will have on our people. They are necessary to protect jobs and avoid the redundancy situations that other pro- fessional services firms have needed to consider.” Bonuses will be paid in two instalments, with the first half a bonus to be paid in July and the second in November. The firm, which is currently operat- ing virtually, said while some sectors were taking a hit, several sectors in Asia were picking up, particularly in greater China, as the region starts recovering from the eco- nomic effects of the virus. “Across our practice areas, we’re also seeing demand in equity capital markets, infrastructure work, financial services, dispute resolution, restructuring and employment,” Jenkins said. “However, it is also apparent that some markets face a long road to recovery.” The global firm employs more than 1,600 partners and lawyers across its 28 offices globally. In Australia, Ashurst has offices in Sydney, Melbourne, Perth, Bris- bane and Canberra. Ashurst chairman Ben Tidswell said the firm has “pulled together in an impressive way”. “While this is not an easy time, I take a great deal of confidence from the way the whole firm is presenting a united front, as we continue to meet the needs of our clients,” Tidswell said.
“As a global business, Ashurst like many others is affected by the economic disruption being caused by Covid-19. The 80 per cent work pattern will help manage capacity levels of the business in coming months.” Paul Jenkins, Global Managing Partner of Ashurst
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From the implications of panic buying in remote areas to the policing of social distancing restrictions and lack of robust health resources, legal experts warn the impact of COVID-19 may be especially harsh on Indigenous communities. Lawyers have told LSJ close attention needs to be paid to ensure Aboriginal people do not bear the brunt of the restrictions stemming from the pandemic, noting the spread of the virus in certain communities would bring catastrophic consequences. While Australians with compromised immune systems and those aged over 70 have been told by the government to stay at home “unless absolutely neces- sary”, those same strict measures apply Protecting the most vulnerable fromCOVID-19 BY AMY DALE
to Aboriginal and Torres Strait Islander people over the age of 50. Samantha Lee, police accountability solicitor at Redfern Legal Centre, fears Aboriginal people will be disproportion- ately targeted by the social distancing regulations. “We have had concerns from youth workers who work with young Aborig- inal children, who are generally out participating in public spaces,” Lee said. “ ere is lots of movement between households, there are family and kin- ship arrangements that aren’t taken into account in the public health orders. We also know that Aboriginal people are more policed than other groups.” Robert Springall, lawyer and consul- tant with Holman Fenwick Willan who has spent extensive time in remote Indig- enous areas, said any potential spread of the coronavirus “would be like dynamite in those communities”. “ ey do not have anywhere near the same level of medical resources as other
communities, and I think unless people have spent time in these remote areas, they may not necessarily grasp how iso- lated they truly are,” he said. “ ere may be rural nurses within the community but there is no real support at any great depth in many of these com- munities. ere are also many people su ering from heart and kidney disease, diabetes and other comorbidities. “I think to date there has been great success from government at all levels in containing the virus, and obviously that goes a long way in protecting those in Indigenous communities and other vul- nerable populations,” he added. A coalition of Aboriginal organisa- tions has written to government asking for assurance that remote communities will continue to have access to essential groceries and fresh food, amid concerns that larger supermarket chains were bulk-buying goods, leading to a shortage in independent stores that service disad- vantaged areas.
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PRIVACY Privacy concerns over mobile tracing app
For the full round-up of Law Society advocacy, see page 66.
BY KATE ALLMAN
Australian Human Rights Commission’s Human Rights and Technology Report The Privacy and Data Law and Human Rights Committees contributed to a submission on key proposals put forward by the Commission in its discussion paper, which is the principal document underpinning the second phase of its consultation on human rights and technology. The submission notes the Law Society is broadly supportive of the AHRC’s proposals and provides some additional recommendations for the AHRC’s consideration in progressing its proposals to government. The Property Law and Business Law Committees contributed to a submission to the Australian Taxation Office supporting the ‘Draft Variation 2020/D1 Taxation Administration PAYG Withholding for Foreign Resident Capital Gains – No Residue after a Mortgagee Exercises a Power of Sale Variation 2020’. We noted that the mechanism provided will reduce the compliance costs of mortgagees exercising powers of sale and provide clarity for purchasers involved in those transactions. Proposed Convention on the Rights of Older Persons The Elder Law, Capacity and Success Committee and the Human Rights Committee contributed to a submis- sion to the Law Council supporting a proposal for a new international con- vention on the rights of older persons. We suggest the Law Council’s policy position explicitly recognise the key issues of older persons and employment, and older persons and access to justice. PAYGWitholding for Foreign Resident Capital Gains
Legal bodies have sounded alarm bells over the federal government’s plan to release a mobile-tracing app that would help track the contacts and movement of people infected with COVID-19. Prime Minister Scott Morrison last week announced his intention
to introduce an app modelled on one being used by the Singaporean government called “TraceTogether”, which employs Bluetooth technology to trace the mobile phones of people who have been close to the phones of confirmed COVID-19 cases. But the Law Council of Australia said it had concerns over the app’s privacy settings and the government’s vague detail about how Australians’ data would be collected and used. “The privacy settings of any such app will require careful scrutiny, with many in the community understandably hesitant about the collection of their personal information by the government,” said President of the Law Council Pauline Wright. “The Law Council is concerned that a number of important policy details have not yet been provided, which will be material to the ability of Australians to give their informed consent to the collection and use of their personal information.” The NSWCouncil for Civil Liberties (NSWCCL) said in a statement that any move to monitor citizens movement could set a dangerous precedent. “Contact tracing and the wider application of mobile device tracking would enable the Australian government to assemble a person’s location history into a single, searchable database,” warned Michelle Falstein, convenor of the Privacy and Data Retention Action Group at NSWCCL. “Without a Bill of Rights or a statutory cause of action for serious invasion of privacy, it is problematic for Australians to remedy injustices due to restrictive or intrusive laws. “In Australia, any implementation of mobile device tracking capability should also be accompanied by an independent oversight role for the Office of the Australian Information Commissioner (or other government office), accompanied by the appropriate resources to fulfil that oversight role effectively.” The Prime Minister has said that the app would not be compulsory to download. But health experts say at least 40 per cent of Australians will need to download the app for it to be effective. In Singapore – which perhaps has a more compliant population than Australia, and a unicameral legislature with only one house of Parliament – just 20 per cent of people have signed up to the TraceTogether app.
For more on privacy and rule of law issues, see LSJ ’s feature story on page 30.
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Excuses, excuses … With hefty fines being dished out under the new COVID-19 “stay at home” laws, Australians are getting creative with their excuses when busted out and about. Channel Nine and e Daily Mail reveal some of the most staggering excuses that have been used by those caught breaking the rules:
Some might say the police saved him from another cat- sh incident. He didn’t see it that way after receiving a $1,300 ne and being no closer to nding love. Two men drinking in a park in Batehaven were ned despite their claims that drinking is their (as well as 70 per cent of Australians, according to some reports) primary form of exercise. A woman who was pulled over for a breath test in northern NSW copped a ne despite passing her breath test as she did not have a rea- sonable excuse to be driving at 1.30am. Don’t drink and drive, but also don’t drive without an excuse.
A group of 18 people was ned for street racing west of Newcastle. Apparently driv- ing your car really, really fast does not constitute essential exercise. After a minor car accident, a 51-year-old man from Albury told NSW police that visiting his drug dealer was “essential business”. He argued that what is essential lies in the eye of the beholder. e police did not see it that way and dis- quali ed his driving license. A couple who drove from Victoria to NSW was ned $1,000 despite the claim they were driving to “recycle their cans”. Surprisingly, police were not so supportive of this environmental pursuit.
A wealthy man from Bris- bane was ned for ying his helicopter to Moreton Island. Twice. He claims he was just trying to get away from it all. In fairness to him, it must be stressful living in an enor- mous mansion. A man from Port Douglas drove 70km in order to meet up with someone he “liked the look of” on a dating app.
A man from Newcastle was ned $1,000 for eating a kebab while out running. Regardless of the COVID-19 laws, no one should ever eat while running. A couple from Muswell- brook was ned for sitting in their car with no reasonable excuse other than that they were bored of their living room (we can relate).
Cross-examination Test your legal knowledge ...
8. How many of the seven High Court judges voted to acquit George Pell in April 2020? 9. Who was Australia’s second prime minister? 10. In what year was the Federal Court formed?
1. What is the limitation period for defamation in NSW?
4. What does NCAT stand for?
5. What are the four elements of negligence? 6. Which recently retired Australian prime minister published an autobiography in April? 7. What is the standard of proof for civil cases?
2. Which current justice of the High Court of Australia had never served as a judge prior to their appointment? 3. Which Australian state recently passed a regulation to allow legal documents to be witnessed via online video commu- nications such as FaceTime or Zoom?
Answers on page 61
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