LSJ May 2021

The age of reason Why older workers hold the key to greater productivity

Shaping the profession How our newest lawyers are changing the face of the law “I amnot a cat” Lunch with the judge from the world’s funniest Zoom call Respect@Work Is the Government’s response enough to e ect change?

ISSUE 77 MAY 2021

Why small firms around the state are leading the post-COVID revival

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Contents

26

28 38

Features

24 Hot topic

38 Age-old dilemma

50 Extracurricular

Could pay transparency and leadership quotas enshrine gender equality in law? Kieran Pender asks 26 Lunchwith the cat lawyer Texas Judge Roy Ferguson Zooms with Kate Allman to chat innovation, COVID-19, and that Zoom hearing

Angela Tufvesson on why the legal profession must embrace the skills and experience of older workers

Lawyer Nathan Cahill turned a brush with death into a business inspiring happy and healthy lives

42 Admitting diversity

52 Health

The voices of a new generation of lawyers are leading a chorus of change, writes Kirrily Schwarz

Why is the AstraZeneca vaccine safe for some and deadly for others? LSJ breaks down the statistics and myths

32 Cover story

48 Mindset

56 Travel

The pandemic bounceback is afoot, and regional firms are leading the way, as Katrina Lobley explores

You can’t always get what you want, but Angela Heise advises how to best cope with letdowns

Prawns, waves and jacarandas for days: our guide to the best bits of Yamba and the Clarence Valley

ISSUE 77 I MAY 2021 I LSJ 3

Legal updates 56 86

Regulars

6 From the editor 8 President’s message 10 Mailbag 14 News 23 Expert witless 23 The LSJ quiz 28 A Country Practice 46 Career matters 48 Career coach 48 Mindset 52 Health

66 Advocacy

80 Risk

Your monthly round-up of what’s new in law reform

Why solicitors need to take care with caveats in PEXA

68 Opinion

82 Native title

A frank assessment of the Government’s Respect@Work response 70 Intellectual property Vaccine nationalism and the case for limiting patent rights 72 Business &human rights

The Torres Strait success story o‡ering hope for culturally significant sites at risk from development

84 Environmental law Lay observers and expert witnesses face-o‡ in the

Montara oil spill class action

Identifying and reporting on ESG risks in the midst of a pandemic

86 Animal law

An overview of the latest developments in New South Wales animal protection laws

75 Employment

A practical analysis of the new casual employment reforms

88 Case notes

Expert reporting of the latest High Court, Federal Court, NSW Court of Appeal, NSW Court of Criminal Appeal, Family Court, and elder law and succession judgments

56 Destination guide 62 Books and lifestyle 64 The case that changedme 77 Library additions

78 Privacy

Maximising the value of corporate data while protecting against privacy risks

“I want to play a role in shaping the impact of my profession in the wider community:

through leveraging the Law Society’s ability to coordinate our voice to government, through participation in its committees, and its invitations to network with and learn alongside my fellow NSW lawyers. I’ve been a proud member for 35 years, and I won’t be changing that any time soon.”

Justin Moses , In-House Lawyer at AIME (Australian Indigenous Mentoring Experience) (Member since 1986)

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A word from the editor

It’s a relief to read this month’s cover story, “ e bounce back”, on page 32. Last year was a sometimes di cult, often strange year in which – in many ways – things changed forever. ere were undoubtedly silver linings to the whole situation – and these were only able to emerge because of Australia’s fortunate position in terms of being able to suppress and

ISSN 2203-8906

Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2021 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 o•cial 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.

virtually eradicate COVID-19. One of these silver linings has been an uptick in legal work for many small law rms and sole practitioners. As you will read in Katrina Lob- ley’s feature, COVID-19 set in train numerous changes in circumstance and outlook for many Australians, which, in turn, generated a greater need for bread-and-butter legal services such as conveyancing, wills and estates, and employment law. It has been a boon for many of our smaller rms, particularly in the regions which have been so cruelly battered by res and droughts and oods. While this is not the story for all law rms, it is important to acknowl- edge that – in the big scheme of things, especially in global terms – our profession has held remarkably strong and, in some cases, even thrived throughout the pandemic. It is something to be grateful for. Claire Cha ey

Contributors

Jennifer McMillan Risk & property p80 Jen McMillan is Manager, Practice Support Services at Lawcover and a long time LSJ contributor. This month she gives practical pointers on electronic conveyancing and dealing with caveats in the PEXA platform.

Katrina Lobley Cover story p32

Angela Tufvesson Feature p38 Angela Tufvesson is a freelance journalist and editor with 15 years’ experience contributing to business and lifestyle publications. She explores the prevalence of age bias and discrimination in law.

Dr Dilan Thampapillai IP & Vaccine Equity p70 Dilan Thampapillai is Senior Lecturer, ANU College of Law & Senior Research Associate, Intellectual Forum, Jesus College, Cambridge. He looks at the hot topic of vaccine equity and the case for limiting the monopoly of COVID-19 vaccine patents.

27,578 * *AUDITED SEPTEMBER 2020 DISTRIBUTION

Katrina Lobley is a Sydney-based writer

who started working as a journalist in regional NSW more than 30 years

The age of reason Why older workers hold the key to greater productivity

ago. She contributes regularly to national

Shaping the profession How our newest lawyers are changing the face of the law “I amnot a cat” Lunch with the judge from the world’s funniest Zoom call Respect@Work Is the Government’s response enough to e ect change?

ISSUE 77 MAY 2021

ISSUE 77 MAY 2021

newspapers. This month, she writes for LSJ on the post-COVID boom in work for regional firms.

Why small firms around the state are leading the post-COVID revival

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 journal@lawsociety.com.au. 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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6 LSJ I ISSUE 77 I MAY 2021

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ASSESSING AND CHANGING OUR RELATIONSHIPWITH ALCOHOL Wednesday 12 May • 12:30pm – 1:30pm

Dominique Robert-Hendren Hello Sunday Morning

ISSUE 77 I MAY 2021 I LSJ 7

President’s message

A s someone who has now been in- volved with the Law Society for a number of years, I have always been struck by the level of exper- tise and commitment from those who volunteer their time for the bene t of our profession and the greater community. Since becoming President, I have gained further in- sight into how much of this generous support is woven through the fabric of the Law Society’s work and the broader legal profession – most recently in relation to the Society’s mentoring programs. Last year, in the midst of the pandemic, when most of the legal profession was work- ing from home, the Society made the brave decision to continue with the launch of not one, but all three of our mentoring pro- grams. It was also the rst time our mentoring programs were conducted entirely online. Despite the challenges, there was never any doubt about whether we would run the mentoring programs which, I am pleased to report, saw a record 466 participants pair up across the three mentoring streams for Graduate Lawyers, Early Career Lawyers and Women Lawyers. Early in my career, I was fortunate to expe- rience the transformative power of mentoring. In the years since, I have found joy in giving back as a mentor. For lawyers, mentoring isn’t

really an optional extra. It is an expression of who we are as legal professionals. Mentoring also re ects a commitment to lifelong learning and continual improvement. It illustrates our dedicated sense of service and heightens our awareness of a shared obligation to both court and client. What is particularly gratifying about our mentoring programs is that participa- tion continues to increase each year, and we are now seeing members of the profession who have bene ted from being mentored in our programs returning as mentors. I would like to thank all those who participated in our 2020 mentoring programs for their ongoing involvement and active participation over the past 10 months. I would also like to congratulate the winners of our 2020 Mentor of the Year Awards – Dianne Retief (Graduate Lawyers Program), William Fitzsimmons SC (Early Career Lawyers Program) and Kylie Virtue (Women Lawyers Program) – along with the highly commended nomi- nations. You can read all about these impressive mentors in Floyd Alexander-Hunt’s article later in this issue. In the meantime, applications for our 2021 mentoring programs are now open via our website: lawsociety.com.au/mentoring. If mentoring is something you are con- sidering, I would o er one observation: the conclusion of a mentoring program is the start of a journey, not its end.

Juliana Warner , President, The Law Society of NSW

8 LSJ I ISSUE 77 I MAY 2021

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ISSUE 77 I MAY 2021 I LSJ 9

Mailbag LETTERS TO THE EDITOR

in attendance at court at least an hour before a matter was listed to commence. Chester would often become slightly aghast when a junior was late for a conference. At that first conference, Chester asked me at length about my own background and where I was brought up; namely, the western suburbs of Sydney. He was interested in my parents and the fact that my father op- erated a bicycle shop at Punch- bowl and had had a lifelong interest in the rehabilitation of prisoners. Chester then turned to the particular case before us and asked me to explain what I understood to be the client’s case, consistent with our client’s innocence. He listened atten- tively. It was then that his foren- sic mind was seen to operate. He had read all of the material in the brief which, in this case, was voluminous. Chester point- ed to a pile of papers on his sec- retary’s desk and told me, “Greg – that’s the material I won’t need.” He had already spent a considerable amount of time in focusing on the defence theory and identifying the critical issues in the case. Our elderly client arrived at our conference anxious and

distressed. Chester made him welcome and spoke to him with understanding and courtesy, telling him that he was not there to judge but to represent him. At the end of the conference, Chester showed the client out and I was taken with his sincerity and support for the client. This was no mean feat having regard to the allegations before us. On that occasion, our junior arrived late but he was one of the most able of barristers that I have ever had the honour to brief, namely, the late Paul Byrne SC. I was in a truly remarkable position, as were my clients, to have such a team of legal talent. I continued to brief Chester and Paul for many years. It goes without saying that Chester and, for that matter, Paul, became mentors to me and I came to know them very well. They were both men of enormous intellect and poise and had a love of the arts, including poetry and litera- ture. In Chester’s case, he had, of course, his wonderful inter- ests as an ornithologist. The cases that Chester and Paul undertook for my clients were extremely di•cult. On many occasions, they involved the defence of religious mem- bers charged with serious sexual

Letters fromKuching Inside the WWII POW camps where legal education was a saviour Tough on soft skills Why finding strength in human traits is key in a COVID world Reality delivered How Australia’s gig economy is falling foul of the law Out with the old? An analysis of the Federal Government’s JobMaker scheme

ISSUE 76 APRIL 2021

Vale Chester Porter QC Chester Porter QC passed away on 15 March 2021, his 95th birthday. His pass- ing was peaceful with his be- loved wife, Jean, and daughters, Mary and Josie, by his side. I had the honour of briefing Chester Porter QC for some 25 years. The passing of such a dedicated and learned senior counsel has meant the end of an era. Chester Porter attended Barker College and then Shore by way of a scholarship. He was captain of the debating team and graduated in law from the University of Sydney. He was admitted to the Bar in 1948, aged 21, being the youngest person ever admitted at that time. I, as a young lawyer, briefed Chester in what was a very di•cult sexual assault mat- ter. I recall arriving at his cham- bers well before the conference was to commence. His secretary ushered me inside and he com- mented on the fact that I was early. Chester informed me that this was a very important trait for a lawyer and, I soon learned, a most important one for Ches- ter. Invariably, he was always

ISSUE 76 APRIL 2021

Is it time for legal reformof this centuries-old practice? Dishing the dirt

on pork barrelling

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WRITETOUS: We would love to hear your views on the news.

E: letters@lawsociety.com.au

Please note: We may not be able to pub- lish all letters received and we edit letters for style. We reserve the right to shorten the letters we do publish.

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CONGRATULATIONS! Greg Walsh has won a limited edition LSJ x frank green™ cup. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

Chester Porter QC (portrait by Mark Tedeschi QC)

10 LSJ I ISSUE 77 I MAY 2021

LETTERS TO THE EDITOR

“I have no doubt that he was regarded as the pre-eminent senior counsel in NSW at the time of his retirement. Chester maintained all of his interests in life, including caring for his beloved ducks and geese at Mona Vale.”

library of books was kept. We would talk about old times and cases and he maintained, as he always did, enormous kindness, compassion and genuine inter- est in others. A trait of his that I will never forget is that he never criticised anybody else. In being with Chester in his lounge room, I am mindful of the quote of Marcus Tullius Cicero when he said, “A room without books is a body without a soul … if you have a garden and a library, you have everything you need.” After Chester passed, I spoke with Mark Tedeschi QC. Mark (who took this portrait) has been a lifelong friend of Chester. We were both genuinely saddened by Chester’s passing. Mark said to me that Chester was probably one of the most genuine, kind and able persons he had ever known in his life. Our thoughts and prayers are with Jean, Dorothy, Mary, Josie and the extended family. Greg Walsh & Co

o ending. The cases were often ‘hard fought’, however, it was readily apparent that the judi- ciary, crown prosecutors, other defence counsel, police and the community always found Ches- ter and, for that matter, Paul, to be very highly regarded and re- spected and the most courteous of men. In this regard, I never witnessed neither Chester nor Paul to be discourteous in any way to a judge, opponent nor witness. They embraced a true art of persuasion that had noth- ing to do with being aggressive or arrogant. Chester Porter was coun- sel assisting in the Voyager and Chamberlain Royal Commis- sions. His advocacy in those commissions was of enormous

assistance to the commissioners and the public. A controversial case in which Chester was in- volved was that of Roger Roger- son who had been charged with bribery against a fellow police o cer, Michael Drury. His de- fence of Judge John Ford was described by Christopher Mur- phy, Solicitor, as “Chester Porter walks on water”. In the context of his foren- sic skills as a cross-examiner, everyone became aware of his nickname: “the smiling funnel web”. One witness described his ability in this regard as being such that “one didn’t know how good a cross-examiner he was until you saw your head rolling down the aisle of the court”. Chester eventually retired

from the Bar in 2000, being at a time when he had contributed so much to the practice of law in this state and also in Austra- lia. I have no doubt that he was regarded as the pre-eminent se- nior counsel in NSW at the time of his retirement. Chester main- tained all of his interests in life, including caring for his beloved ducks and geese at Mona Vale. After his retirement, I main- tained contact with Chester and would go to his home where Jean would call him whilst he was out feeding his ducks. He still lived in the house that he and Jean had bought just af- ter the Second World War and it was very clear that his was a life of simplicity. We would go into the lounge room where his

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ISSUE 77 I MAY 2021 I LSJ 11

Mailbag LETTERS TO THE EDITOR

Mind your language On page 14 of this month’s LSJ (April), there is an article talking to the need for commitment to eliminate sexual ha- rassment, discrimination and bullying. On page 23, the heading of a regular section is “Expert witless; Because if we can’t laugh at ourselves”, and this month the leading story talks to a judge calling a defendant “dumb”. There is something to be said for in- cluding unusual stories, but another for it to be under a category of witless/let’s laugh at others. It’s also worth consider- ing the language we celebrate – whilst circumstances are challenging, often requiring the need to send firm messag- es, does this mean we have the right to call people “dumb”, or, more so, cele- brate it by publishing same? Whilst our role is to know the rules, follow them, advise on and judge on them, I don’t feel we represent ourselves well or display leading EQ by taking the mickey out of people, or talking poor- ly to people, for not doing the same. It would be great to see unusual stories with topics, and scribed in a way that also demonstrates how we can engage on challenging matters with respect and emotional intelligence. Otherwise, the magazine and con- tents continue to serve a needed pur- pose, so thank you. Kate Eastoe Politicising pork The cover article of the April 2021 issue of LSJ covered the issue of pork barrel- ing from a legal perspective – currently a most sensitive political issue for the in- cumbents in State politics. One of the interviewees, Michael Bradley (identified as the Managing Partner of Marque Lawyers) is quoted in the article to say, “A lot of commenta- tors have been pointing to fundamental structural changes that have progres- sively taken place within government through the generations, and that shift in power and functioning from public service to political ošces is definitely a big one. The politicisation of the pub- lic service … It’s opened up a lot more scope for corruption and just really poor and partisan decision making, and that’s led to the blurring of lines between pub- lic good and what’s good for the public.” The article does not establish Mr Bradley’s expertise to oœer an opinion in the area and neither do his com- ments draw on any legal qualifications. The website of Marque Lawyers iden-

tifies a number of their clients which include The Greens, First Solar, Ecolab, and Bio-Oil. This is not a good look for the Journal. If the politicisation of the public service is a bad thing, then the politicisation of professional associa- tions is not better. Ken Harkness No debate on climate change It amazes me that the ošcial journal of a mostly educated profession still pub- lishes letters such as the letter in the March issue from “Ben” claiming there is still a debate about whether or not cli- mate change is real and that both sides should be given a hearing. But there is no debate. The science has been known since 1896. Today there is not a single scientific institution or university or me- teorological body that doubts the reality of the problem. If there is a debate it is only about how best to achieve net zero emissions quickly enough to preserve the planet for the benefit of our children and grandchildren. JimMain PS: A 2018 issue of the Scientific Ameri- can discussed how, in a then recent poll, 1.28 per cent of the 10,374 responders stated their belief that the world is flat. Is the LSJ open to a debate on the subject? Musings on conveyancing I owe a huge, belated thank you to so many of my conveyancing colleagues. Why, you ask? For giving me the oppor- tunity to refresh my knowledge of the printed clauses of the current edition of the Contract for the Sale and Purchase of Land each time I review a contract when acting for a purchaser. I am invari- ably confronted with page after page of so-called “special conditions” amending and deleting those printed clauses. That said, the advent of electronic conveyancing has had some irksome results, according to my view on life as a conveyancing lawyer. It seems obvi- ous to me that many of my colleagues have pared their fees in conveyancing matters down to such an extent, to what someone once described as “a plate of goulash and a glass of beer”, that even the most minor, technical infringe- ment of the terms of the contract by the purchaser results in the imposition of a monetary penalty and, often, those infringements no longer have any ap- plication or relevance to life in PEXA. Point in question, failure to deliver the transfer 14 days prior to the settlement

THE RIGHT PATH IS NOT ALWAYS CLEAR Our Professional Support Unit can show the way Contact our experienced solicitors for con dential guidance on ethics, costs and regulatory compliance. lawsociety.com.au/psu

12 LSJ I ISSUE 77 I MAY 2021

date, $165.00 (obviously GST in- clusive) payable by the purchas- er for the “costs of execution of the Memorandum of Transfer at such a late date”; totally irrele- vant in PEXA. A further point in question, the shifting by ven- dor’s solicitors of the obligation to obtain the section 184 Strata Information Certificate onto the purchaser’s solicitor, who then has to serve a copy of the cer- tificate on the vendor’s Solicitor. One more point in question, a special condition asserting that “ … if settlement fails to proceed due to a system fail- ure, then neither party will be in default” (which is precisely what printed clause 30.12 states, but with far more specificity as to which system failure) which then proceeds: “If electronic settlement cannot be re-estab- lished the next working day the parties must settle in the usual non-electronic manner as soon as possible but no later than three working days after the initial electronic failure unless otherwise agreed.” Really? Just one more, before I cease my venting: the ubiquitous dele- tion of printed clause 16.8 (look it up, folks); there are no bank cheques in PEXA! But the abso- lute straw that broke the camel’s back, so to speak, and prompted me to send this letter (admittedly it was told to me by a colleague) was a special condition stating that if the purchaser requested more than three amendments to the contract, including in the pre-exchange negotiations, the purchaser would be obliged to add $275.00 (GST inclusive) to the settlement adjustments to cover the extra work on the part of the vendor’s solicitor in deal- ing with the amendments. All I can say is, seriously? I suggest that all of us need to take a good look at our ad- ditional clauses and, amongst other things, get rid of the dead- wood that is irrelevant in a PEXA environment and stop transfer- ring the burden for an increase in our fees in these matters onto a purchaser. Life would be so much easier for those of us who have to deal with this unnec-

essary and time-wasting added verbiage. George Bognar

The solicitor-client relationship

I recently heard and read in the press that the solicitors original- ly instructed by the Federal At- torney General Christian Porter, Minter Ellison, had sent an email to sta¤ members apologising for representing Mr Porter. Nat- urally the email went public and was reported to the press. Minter Ellison’s disrespect for their client should be con- demned widely by every prac- tising solicitor in Australia. The relationship between solicitor and client is sacrosanct. If you refuse to take a case for whatever reason, be it po- litical, religious or any other reason you can think of, then don’t take it. Once you take it on, respect your client and don’t throw him under the bus the way ME did to Mr Porter. It matters not what the client has come to you for. When you accept the instructions, you MUST represent that person to the best of your ability. It is obvious that the people responsible for the email at ME were concerned about the fact that a woman had alleged that Mr Porter had acted improperly towards her 33 years ago. They should have parked their ideo- logical preferences to one side and allowed the sanctity of the solicitor client relationship to rise above their ideologies. That is the message which should be sent to all lawyers, especially the younger members of our profes- sion, both male and female. If the solicitor client relation- ship is undermined, the future of the profession is at risk. How could clients trust us? You don’t always have to like your client, but you will be a better lawyer if you find it an honour to rep- resent them and showcase to them your ability and profes- sionalism. This cannot happen if you put ideological preferences ahead of your client. J. Andriano

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ISSUE 77 I MAY 2021 I LSJ 13

Briefs NEWS

Chief Judge: ‘We need to bemore climate conscious’

BY KIRRILY SCHWARZ

The Chief Justice of the Land and Environment Court of NSW has called for lawyers to become “climate conscious and not climate blind”.

In the rst event of the Law Society of NSW’s ought Leadership Series for 2021, Justice Brian J. Preston said this required lawyers to have active awareness of the way climate change interacts with daily legal problems. “A climate conscious approach de- mands rst, actively identifying the in- tersections between the issues of the legal problem or dispute and climate change issues,” Justice Preston said. “Secondly, giving advice and litigating or resolving the legal problem or dispute in ways that meaningfully address these issues.” Justice Preston moderated a discus- sion between a panel of experts, includ- ing Cathie Armour, a commissioner at the Australian Securities and Investment Commission (ASIC); Sophie Marjanac, Climate Accountability Lead at envi- ronmental law charity ClientEarth; and Timothy Stutt, a senior associate who works as the lead for environmental, so- cial, and governance business at Herbert Smith Freehills. e event came on the back of weeks of wild weather that caused devastating ooding to large areas of the state. Justice Preston noted that climate-related risks to business don’t just include physical risks from extreme weather events but economic risks and liability risks. In- creasingly, companies are being held lia- ble for contributing to, or failing to adapt to, environmental issues. Australia has seen two recent exam- ples. Justice Preston referenced the in- quiry and board shake-up that followed Rio Tinto’s destruction of the Juukan Gorge caves in Western Australia, and Cbus’s divestment of shares after Chinese

From a regulatory perspective, Ar- mour said, sustainable nance is a hot topic in many multinational groups and forums including the G20. Much is hap- pening ahead of the next Rome summit in October. “ is is a world without borders and while we have to address speci c climate risk in certain geographic areas, we can do it with a coordinated e ort,” she said. “From our perspective, we’re very keen to ensure we can have global consistency, especially in relation to disclosure stan- dards and accounting.” When it comes to governance, how- ever, Stutt said culture is evolving even where the law remains unchanged. is includes a “rising tide of disclosure” as well as increased expectations of compa- nies. “Even something like directors’ duties – the law is unchanged, but it’s well rec- ognised by a lot of companies now that the framework of what reasonable care and diligence has changed,” he said. “As people’s understanding of these risk areas is enhanced, and as regulators take stronger positions, that changes the goal posts. at’s why we’re seeing a bigger focus on how... companies are considering climate as a material risk and addressing it and communicating it to the market.” e panel agreed that Australia is a “fertile ground” for future climate change litigation. Justice Preston said this meant lawyers needed to be climate conscious so they can give holistic advice, focusing not just on legal issues, but nancial, social, environmental and ethical consequences of each course of action.

Justice Brian J. Preston

“A climate conscious approach demands ... actively identifying the intersections between the issues of the legal problem or dispute and climate change issues.” mining company Shenhua threatened to destroy Aboriginal cultural artefacts in a northern NSW coal mine. It’s the di er- ence, he said, between having a “legal li- cence” and a “social licence”. Public atti- tudes towards such commercial activities – even though they are legal – are starting to change. “Climate law is hot law,” he said. “ e law is relating to climate change and its consequences is rapidly evolving… and the view that [companies] have no or very few legal responsibilities is being challenged.”

14 LSJ I ISSUE 77 I MAY 2021

NEWS

Influencer

NEWTHISMONTH Golden Gavel 2021

by

e funniest event on the legal calendar is back in 2021. Join us for breakfast on Friday 21 May and watch 10 of the funniest legal minds compete in a winner-takes-all comedy showdown. With limited seats avail- able, this year’s competition is sure to sell out quickly. Don’t miss out: book today at: lawsociety.com.au/events Just Chat new episode is month, Just Chat dives into the ndings of the Royal Commission into Aged Care and Quality, nursing home deaths from COVID-19, elder abuse and the high cost of growing old in Australia. Our special guest is Andrew Simpson, National Head of Wills & Estate Planning at Maurice Blackburn Lawyers. Search “Just Chat” wherever you get your podcasts or visit whooshkaa.com/shows/just-chat FLIP RoadshowOrange e President of the Law Society of NSW invites you to the Future of Law and Innovation in the Profes- sion (FLIP) Roadshow in Orange on Friday 28 May. e half-day program is designed to provide our members with low-cost, innovative and sus- tainable solutions to improve their practice. Register at: lawsociety.com. au/events/events-calendar/ ip-road- show-orange 2021 mentoring programs Applications are now open for the Law Society’s 2021 mentoring programs. e three uniquely targeted and popu- lar mentoring programs have been de- veloped to support lawyers at di erent stages of their career: graduate, early career (two to ve years of practice), and women. To nd out more and express interest in participating in the programs, visit: lawsociety.com.au/mentoring

CaroMeldrum-Hanna Investigative journalist, Exposed: The Ghost Train Fire

It’s time for justice for the long-su ering families. Please don’t turn away.

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Briefs NEWS

Joshua Wong is a solicitor with the NSW Trustee & Guardian (NSWTG), a state government agency which administers deceased estates and provides financial management for some of the most vulnerable people in NSW. Wong has helped establish and manage a new team within NSWTG providing an in-house conveyancing service to assist clients. Wong discusses his career and insights with FLOYD ALEXANDER-HUNT . sixminuteswith JOSHUA WONG Why did you pursue a career in law? I studied law and philosophy at the University of Sydney, but I didn’t think I was a particularly academic type. I enjoyed the challenge of studying law but when I left, I wasn’t sure what I was going to do next. I went travelling, lived overseas and eventually came back to complete my PLT. I had the opportunity to work with very passionate and experienced lawyers at a busy property law practice. It was there that I was really thrown into the deep end. I didn’t particularly seek out property law, but it suited me. I’ve developed skills in project management, negotiation, understanding the market and working on real life practical issues. Coming to grips with the mental health crisis in the legal profession. I learnt early on that the legal profession is competitive, demanding and a high-pressure environment. I think a lot of graduates aren’t really prepared for that. I also think COVID-19 has forced a cultural shift away from traditional modes of working. We have to re-look at the system and be open to changing how we work, billables, and where work ts into our lives. How did COVID-19 aƒect you? Fortunately, property law is quite well-suited to working from home, as in 2019 a lot of property settlements moved online. Technology and the digital revolution hit property law at the perfect time, so the pandemic didn’t have a huge detrimental impact on our practice. What are the biggest issues the legal profession is facing today?

Do you have any advice for lawyers seeking to follow a similar path? Keep an open mind, be curious and jump at every opportunity. You need a balance of technical skills and softer skills such as project management. ose softer skills are sometimes more important than being able to recite large pieces of legislation. I didn’t really have a set idea of my direction, but I was given interesting bits of work, great mentors and built my skills from there. I learnt a lot by taking on di erent clients and working across di erent jurisdictions. What has been your biggest career highlight? My current role at NSWTG is incredibly rewarding. I manage the new in-house property law and conveyancing service. It’s de nitely been a step up acting in a management role and building a professional and e cient team within government. I’m still learning, but I think my previous experience set me up well. Prior to working as a lawyer, I worked overseas which exposed me to a lot of di erent cultures and ways of working. A huge element of my role is keeping a lot of di erent balls in the air and working with people from di erent backgrounds. What do you like to do in your spare time? My partner and I are proud dog parents to a miniature dachshund. We got her just before COVID, which was perfect timing. At the moment, both of our lives pretty much revolve around the dog. We take her everywhere we can. Outside of that, I’m also a pretty keen skier but I don’t see myself going overseas anytime soon. I also play guitar, but I’m not very good. And, to be honest, I didn’t improve during lockdown.

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NEWS

MIND YOUR LANGUAGE NSWChief Justicewarns against erroneous use of ‘rule of law’ arguments

e Chief Justice of NSW has delivered a searing hot take on politicians and me- dia overusing the phrase “rule of law” with apparent disregard for its proper meaning. In a speech to members of the legal profession and judiciary in April for the District Court of NSW Annual Con- ference, Chief Justice Tom Bathurst lamented misconceptions appearing in the media and political spheres of late. He said the phrase “rule of law” was fast becoming the “in vogue” argument to justify a range of divergent positions on current issues. “Far from languishing in obscurity, the concept of the rule of law has taken up prime position in recent times. Over

the past month in particular, I have been troubled by the discourse around the rule of law playing out amongst politicians, the media and the public,” he said. “When the phrase is carelessly or in- correctly bandied around by the loudest voices in society, this undermines the reputation and mandate of rule of law processes.” e Chief Justice said one of the recent challenges to the rule of law stemmed from a public misunderstanding of what the rule of law entailed. He went on to clarify the concept of the rule of law was made up of key prin- ciples including that no one is above the law, there must be an independent ju- diciary to apply the law, the content of

law should be accessible, clear, and con- sistent, laws must be fair, rational and impartial and everyone must have a right to a fair trial including the presumption of innocence. Chief Justice Bathurst also said social media, “fake news” and online disinfor- mation circulating posed a threat to the “two-sided nature of the rule of law cov- enant” by enabling conspiracy theories and “fringe views” to ourish without fair debate. “Lawyers also have a vital role in maintaining public con dence in insti- tutions by communicating the law clear- ly and ensuring that cases are brought fairly and on their merits in accordance with law.”

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Briefs NEWS

MENTORING IN THE LAW LawSociety launches annual ‘Mentor of the Year’ awards

ree lawyers have been rec- ognised for their mentorship and impact in the 2020 men- toring programs run by the Law Society of NSW. e inaugural “Mentor of the Year” award is presented to three mentors each year - one in each of the mentoring programs for graduates, early career lawyers and women. Dianne Retief won the graduate category for her ex- cellent coaching of a mature age graduate; William Fitz- simmons SC won the ear- ly-career lawyer category for mentoring an aspiring barris- ter and Kylie Virtue won the women’s category for helping a lawyer navigate a non-lin- ear career path. e awards acknowledge those who have shown exceptional dedica- tion and patience in helping their mentees gain valuable knowledge and con dence in their career. Mentees in the 2020 pro- grams had an opportunity to nominate their mentors and provide written responses to questions about the quality of their interactions, the sup- port they received and what it meant to have the person as their mentor. Danielle Manion nominat- ed her mentor Dianne Retief, a Senior Associate at Caroll & O’Dea Lawyers who specialis- es in taxation, commercial law and estate planning. “I was extremely lucky to be matched with Dianne,” said Manion, a mature-age graduate interested in work-

lege of Law, won the award for the women’s category. She was nominated by her mentee Ida Nursoo, a lawyer and academic who currently works as an Industrial O cer for the National Tertiary Ed- ucation Union. “ e process reminded me of how important it is to real- ly listen and be present,” said Virtue. “With mentoring, you don’t have to tell people what to do, you just have to help them nd their way.” Virtue acknowledged that she gained as much as her mentee through the process. “I learnt from Ida. I was impressed by her resilience and we were both reminded that having a non-linear path doesn’t make it any less suc- cessful,” said Virtue. Ida Nursoo praised Vir- tue’s wholistic approach to mentoring and acknowl- edged the boost it gave to her self-esteem. “Kylie helped me value my skills and experience. She en- couraged me to seek out op- portunities that utilised my diverse skills, experience and background,” said Nursoo. Several other mentors in the 2020 mentoring programs were highly commended in- cluding Paul Akon, Glenjon Aligiannis, Lisa Powell and Rita Ibrahim. Applications for the 2021 mentoring programs open on 19 April and close on 21 May. For more information, please refer to the Law Soci- ety website.

From left: mentee Danielle Manion and mentor Dianne Retief

ing in wills and estates

the award for the early-career lawyers mentoring program. “I feel incredibly lucky that I was paired with William,” said White, who is an acting Senior Federal Prosecutor. White was admitted to the NSW legal profession three years ago and works for the Commonwealth Director of Public Prosecutions. As an aspiring barrister, she found Fitzsimmons’ experience at the bar invaluable. “I have this quote on my desk which says, ‘ e law tru- ly develops when practitioners impart their wisdom, dedica- tion and passion onto others.’ William embodies that.” Kylie Virtue, a lawyer and adjunct lecturer at e Col-

“From day one, she was thoroughly committed to the mentoring program and ex- ceedingly generous with her time. really struggled with my rst year of practice and Di- anne gave me faith in myself that I would ultimately suc- ceed as a lawyer.” Retief was pleasantly sur- prised by the win, acknowl- edging that mentoring is a two-way street. “You’ve got to get them to open up with you about their struggles because if they don’t, you can’t really help them,” said Retief. Sydney Barrister William Fitzsimmons SC was nominat- ed by Hannah White and won

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NEWS

LEGAL REFORM Defamation reforms to commence in three states

After a year-long wait, NSW will move forward with defamation reforms that passed state parliament in 2020 but have hovered in limbo since. e Model Defamation Amendment Provisions 2020 passed NSW parlia- ment in August 2020 after the state led an 18-month review into the e cacy of defamation laws in the modern era. NSW Attorney-General Mark Speakman at the time told LSJ that the Council of Attorneys-General had agreed to start the amendment process “as soon as possible”. ree jurisdictions – NSW, Victoria and South Australia – have since introduced the provisions and agreed to commence the laws on 1 July 2020. “I’m grateful to the Attorneys-Gener- al of Victoria and South Australia who’ve also guided this historic reform through their respective Parliaments,” said Speak-

man in a statement published in April. Legal commentators have agged the issue that other states and territories have not yet introduced the reforms to their par- liaments. Neither have they committed to a timeline for doing so, placing the unifor- mity of the national defamation regime – which has existed since 2005 – in jeopardy. University of Sydney law professor and defamation expert David Rolph told LSJ uniformity was a “hard-won goal” that should be protected as much as possible. “ e whole point of uniform legisla- tion is that Australian defamation law has been uniform – right through since the rst of January 2006. Before that, we had substantively di erent defamation laws. It meant the same publication disseminated across di erent jurisdictions could lead to di erent outcomes. We need uniformity.” Speakman told e Sydney Morning

Herald that uniformity was “highly desir- able” but that “waiting inde nitely for a small minority of jurisdictions unwilling to commit to any commencement date for the reforms is not an option”. “All the remaining jurisdictions need to do is copy, paste, pass and proclaim the legislation to which they all agreed and continue to agree,” he said. e Attorney-General also announced the launch of a “Stage 2” review for defa- mation law, investigating the relevance of current laws in the context of social me- dia and whether the threat of liability was having a “chilling e ect” on investigatory journalism. e Stage 2 Discussion Paper has been published at justice.nsw.gov.au/ defamationreview and calls for submissions from media, digital platforms, legal stake- holders and other members of the commu- nity. Submissions close on 19 May.

MIND YOUR

BY PAUL MONAGHAN, SENIOR ETHICS LAWYER

I didn’t quite catch your name …who are you? The problemwith identification.

For some lawyers, their very presence brings immediate recognition, fawning attention heaped upon them and many hushed conversations between onlook- ers, discussing the greatness that now graces the assembled throng of fellow members of the legal profession. However, this may not occur for all solicitors. e large and everchanging profession makes the personal identi - cation of a solicitor a far more di cult task than in the past, and this has sever- al unwanted consequences. e di cult nature of forming an immediate profes- sional rapport with another solicitor, the need to ensure courteous communica-

tions, maintaining every opportunity to avoid disputes, and to expedite resolving disputes, becomes ever more di cult. ere are professional obligations upon every solicitor when communi- cating, and the required level of identi- cation. ese obligations may be sum- marised by reference to and compliance with the solicitors’ practice rule 8, where in the conduct of legal practice “… a so- licitor must cause the rm or business name of the solicitor or rm … to be mentioned in legible characters on all communications written in the course of legal practice by the solicitor.” However, this may not be enough to

solve the emerging problems of identi- cation amongst a growing legal pop- ulation and the increasing incidence of cyber fraud. e use of computer-based communications, online nancial trans- actions, property settlements and deal- ing with imposters pose a burden upon the solicitor to maintain the integrity of legal practice. is is becoming mani- fest in the number of attempts at fraud, scam directions and ‘dodgy’ instruc- tions occurring late on a Friday after- noon. When in doubt, con rm identi- cation of the solicitor you may dealing with and con rm instructions from cli- ents by several means.

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Briefs NEWS

POLICE POWERS Police targeting of NSW solicitor ‘completely unacceptable’

ANTIDISCRIMINATIONACT NSWGovernment urged to introduce protections for religious discrimination e majority of a NSW Parliamentary committee has found there is “a strong need” to protect people from discrimination on the grounds of religious beliefs and activities. e joint select committee was formed in response to the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 introduced by One Nation NSW Leader Mark Latham, proposing that the state make it explicitly unlaw- ful for a person to be discriminated against on the basis of their religion. Latham’s proposed Bill would also award protection against adverse action for employees based on any comments, motivated by their religious belief, that are made outside the workplace. e committee majority, in their report to NSW Parlia- ment tabled on March 31, described Latham’s Bill as “a useful template for this kind of legislation, but it has a number of shortcomings that need to be corrected.” For example, the committee majority recommended that protection for employees for comments outside the workplace would not apply for those deemed to be “brand ambassadors” who are “employed or contracted solely for the purpose of pro- moting an organisation’s brand, values and public image.” “ is inquiry raised complex issues about religious beliefs and activities which go to the core of who we are as individuals and indeed what we do as community members,” Upton said. Upton told LSJ that the Anti-Discrimination Act is “a com- plex piece of machinery and we de nitely do not want to cre- ate further discrimination [through any proposed changes].” “We do not want to have the unintended consequence where vulnerable groups could be subjected to future discrim- ination,” Upton said. “We had 192 submissions, four hearing days and 47 wit- ness, as well as 19,000 responses to a public survey: a whole gambit of individuals, organisations and not-for-pro ts … and very well considered and well researched submissions from the Law Society of NSW.” Upton called on the NSW Government to introduce a Bill inserting discrimination on the grounds of lawful religious be- lief and activity as a protected attribute in the Anti-Discrimi- nation Act by the end of the year. “It is my strong expectation that the important issue of pro- tection from religious discrimination can nally be addressed through a Government Bill, thereby improving the lives of people in NSW,” she said. NSW shadow Attorney-General Paul Lynch, Independent MP Alex Greenwich and Greens MP Jenny Leong dissented from the majority support within the committee for amending the laws.

A NSW solicitor was deliberately targeted, harassed and intimi- dated on his way to court by three police o cers during an epi- sode of misconduct the Law Society of NSW President labelled “completely unacceptable”. Following an investigation spanning almost two years, the Law Enforcement Conduct Commission (LECC) found three police o cers from Strike Force Raptor “engaged in serious po- lice misconduct” when they targeted the solicitor. eir investigation, dubbed Operation Monza, concluded the o cers embarked on behaviour designed to “intimidate and harass” the solicitor in 2019, following a request he made for police to give evidence in-person during a hearing for his client, appearing on animal cruelty charges in a local court in regional NSW. During private hearings held by the Commission in 2020, two o cers told the inquiry they had acted on the instructions of a supervisor when they “inconvenienced” the solicitor with minor tra c o ences as he made his way to court. e super- visor con rmed to the inquiry that he gave those instructions. e solicitor told the inquiry he noticed police parked out- side his house at 6.30am and that they followed him as he drove a neighbour to a car repair store on his way to court. e inquiry heard the solicitor was pulled over by the two of- cers, who asked to see his licence because he had not indicated when he reversed from his driveway. He was then stopped again a short time later for a road worthiness check on his car and served with a vehicle defect notice. A mechanic later inspected the car and found no defects. Law Society of NSW President Juliana Warner wrote to the NSW Police Commissioner in the wake of the Commission’s report and ndings from the investigation, tabled in Parliament on March 26. “I have written to the NSW Police Commissioner, Michael Fuller APM, on behalf of the legal profession expressing my concerns about the conduct uncovered by the [LECC report],” Warner said in a statement. “ e deliberate targeting of a solicitor, as uncovered by the Commission, so as to impede his or her ability to represent his or her client at court, is completely unacceptable and has raised signi cant concerns across the legal profession. “It presents a real threat to the community’s belief that the criminal justice system is operating as it should. “I also noted in my letter to the Police Commissioner that the LECC found that three o cers engaged in serious police misconduct and recommended that further action be consid- ered in relation to that misconduct. I look forward to the Police Commissioner’s response to the Commission’s report.”

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