LSJ - November 2014
ULTIMATE SACRIFICE FORMER PM JOHN HOWARD
ONWAR, LAWAND THE MEANINGOF SERVICE
LESTWEFORGET SOLICITORS WHO GAVE IT ALL DURING THE GREAT WAR THE DEMENTIADILEMMA WHY LAWYERS ARE AT RISK LIFE AT SEA A NAVY LAWYER’S STORY BEHINDTHE TERROR WHAT THE NEW LAWS MEAN RIGHTS CURTAILED THE BROOKFIELD DECISION
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F ollowing the o cial launch of the Law Society’s State election policy platform on 27 October, take this opportunity to focus on some of the key issues raised. Our theme “Balance. Rights. Justice” re ects the Society’s advocacy for a balanced criminal justice system, the protection of individual rights and access to justice through proper resourcing for the NSW court system. In the lead-up to the State election, we will be seeking a commitment to a balanced criminal justice system from all NSW politicians. Unfortunately, a belief long held in politics is that severity in sentencing is re ective of a justice system that takes crime seriously. While judicial o cers must have the appropriate tools to protect the community, we believe mandatory sentencing is unjust, ine ective and una ordable and should play no part in our courts and overcrowded prisons.
We therefore will be calling on parties to reject mandatory sentencing and repeal laws that impose minimum terms of imprisonment; provide for exible sentencing options across NSW; and take urgent action to reduce the disproportionately high number of Indigenous people in NSW prisons. As we have seen in recent months, a reactive approach
to bail often delivers changes that are unnecessary, ine ective and overly complex. We believe the recent amendments to bail laws have gone too far in undermining the presumption of innocence, which must remain a fundamental principle. Particular attention is needed on the application of bail within the juvenile justice system. With more than 83 per cent of young people held on remand not going on to receive custodial sentences, the impact of the 2013 Bail Act needs to be monitored to ensure young people are not subject to remand unnecessarily. At the annual members’ dinner on 23 October, I was delighted to present
the 2014 Law Society President’s Medal to Lieutenant Commander Shannon Richards. Shannon is an outstanding lawyer who has given his commitment to national service in the Royal Australian Navy and is a cofounder of KidsXpress, a children’s charity based in Sydney. Congratulations Shannon. (You can read more about him on page 42). Finally, I would like to give a plug to the Law Society’s excellent new job board. Visit lawsociety.com.au/jobboard to see new opportunities.
NOVEMBER 2014 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer
It’s di cult to believe this is the sixth edition of the relaunched LSJ . It seems like yesterday that we were sitting down to rethink the Journal and how it might look as we move into a more modern, accessible era of legal publishing. So far, so good – especially with the recent launch of the LSJ app for smart phone and tablet. Already, almost 1200 members have taken to the app, and that’s in less than six weeks. We have also had a huge increase in online viewers – a jump of 521 per cent since this time last year – plus circulation of the print edition has grown by more than 400 copies to almost 27,000 copies since we relaunched the LSJ in June. We have also been fortunate to feature some seriously impressive individuals on our covers, and former Prime Minister John Howard – who in this edition talks openly about his family history and experience as a lawyer and politician – falls squarely into that bracket. is is all positive news for the LSJ , and there are plans to deliver even more content to members across all platforms in 2015. Exciting times, indeed.
Michael Nguyen Photographer Jason McCormack Editorial enquiries email@example.com Business Development Manager Jemma Still Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2014 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
Dominic Rolfe is a Sydney-based journalist. His piece on former Prime Minister John Howard covers the former lawyer’s family’s record of service. Service and sacrifice p28
Nicola Gates is a clinical
Joanna McMillan holds a Bachelor of Science with First Class Honours in Nutrition and Dietetics. She happily busts some myths over protein and exercise. The truth about protein p50
Christopher Kerin is a director of Kerin Benson Lawyers. He reviews the High Court’s decision in Brookfield which curtails the rights of apartment owners to sue builders in negligence. Builders’ negligence p70
neuropsychologist and trainer with 20 years experience. She explains how many cases of dementia can be prevented. Lawyers and dementia p34
Cover photograph: Jason McCormack
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
16/10/2014 12:15 pm
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42 ADAY INTHE LIFE Jane Southward meets navy lawyer Shannon Richards 44 TECHNOLOGY
8 MAILBAG 10 BRIEFS
64 LAWSOCIETY ADVOCACY 65 WORKERS COMPENSATION 67 LEGAL RISK 68 ANTI TERRORISM 70 BUILDING&CONSTRUCTION 72 MEDIA LAW 74 EMPLOYMENT LAW 76 SOCIAL SECURITY 78 ENERGY &RESOURCES 80 COSTS 82 INTELLECTUAL PROPERTY 84 PROPERTY
News and events from the legal world
12 PROFESSIONAL NOTICES 15 FROMTHE ARCHIVES
The future of e-books within the law library
16 OUT ANDABOUT 18 CAREERMOVES Who moved where this month 20 GLOBAL FOCUS
MANAGEMENT Mitigating risk in an evolving legal landscape
Two lawyers share their experiences of the NSWYL’s new program
Legal news from around the world 24 PEARLS OF WISDOM Justice Margaret Beazley 25 LIBRARY ADDITIONS
The latest in wine, books and events
86 CASENOTES: HIGHAND FEDERAL COURTS 88 GENERAL PRACTICE: WILLS & ESTATES, FAMILY ANDCRIMINAL LAW
98 EXPERTWITLESS Legal news to make you giggle
New books at the Law Society Library
NOVEMBER 2014 I LSJ 7
22 HOT TOPIC
50 THE TRUTHABOUT PROTEIN
55 BONEHEALTH What you need to do now to avoid osteoporosis 56 CITYGUIDE Your guide to spending 24 hours in crazy Los Angeles 60 YOUWISH Ute Junker experiences the ultimate in glamping at Uluru
Michael Bradley explains why one size doesn’t fit all when it comes to law firms and parenthood 26 COVER STORY Former Prime Minister John Howard opens up about war, law and the meaning of service 32 LAWYERS ATWAR Tony Cunneen takes a look at the NSW lawyers who gave their all during the Great War 34 FEATURE Dr Nicola Gates delves into the troubling issue of dementia in the legal profession
Joanna McMillan busts open some myths about the gym junkie’s favourite supplement 52 SNOOZEOR LOSE Dr John Hart oers 25 tips on how to optimise sleep for better health and wellbeing 54 TOOMUCHCHEER? Psychologist Guy Vicars shares some solutions to the chaos of silly season
6 LSJ I NOVEMBER 2014
LETTERS TO THE EDITOR
Back o , boys! I am disappointed but, sadly, not surprised to read yet another letter insinuating gender bias on the part of the new Law Society Journal (Gell, “Too much girl power”, October edition; Manning “Gender bender”, September edition). I applaud the LSJ ’s attempts to boost the skills, confidence, opportunities and advancement of women in law, particularly by relaying accounts of others’ achievements. We continue to struggle to reach the upper echelons of this profession, notwithstanding we have been a part of it for almost a century: quite frankly, we need all the help we can get. For as long as I continue to be referred to as a “lady lawyer” by certain, albeit more “senior”, male members of the profession, I will support such positive discrimination. I refer our male counterparts to the United Nations “HeforShe” campaign and call on all of them to be true advocates for change. Amanda Farmer, Lawyers Chambers on Riley Us pesky women … George Gell, you are completely right (“Too much girl power”, October LSJ ). I, for one, am glad that despite overt activism for female equality in the LSJ , male lawyers, on average, are still paid more than their female counterparts. At least something is still right in this world. Hopefully the next generation of female lawyers will quit while they’re ahead and leave the law to the men. This will avoid those pesky
Taking ownership I just wanted to say I enjoyed reading your story in the October LSJ ( The Track to Partnership ). The views of the young partners featured in your article resonated with my own experience. I am constantly encouraging our young lawyers to take ownership of their matters and start building a practice of their own. Simply being technically competent is no longer enough to make partnership. Funnily enough, I have always found client development and practice building the most enjoyable part of the job! James Ryan, Speirs Ryan Praise for Kirby Love the piece on @ HonMichaelKirby in this month’s issue of the @ LawSocietyNSW Journal ... what an inspiring man! Stephen Sander, via Twitter Victim impact statements I refer to the article published by Samuel Burton concerning victim impact statements. In it he says, “For family victims there is a real possibility they will be subjected to cross- examination.” There are a number of problems with this statement. Generally, why would a defence lawyer want to cross-examine a person about the eect of the death of someone close to them? Secondly, in R v Wilson  NSWCCA 219, Simpson J said at – that the factual basis of the Crown’s case, particularly where it seeks
sexual harassment claims and requests for maternity leave. While we’re at it, we should return to the time when I could only obtain a university degree with the permission of my husband or father. May I also request that men be given a louder voice in the LSJ . They have clearly suered through this ridiculous push for female empowerment. I mean, what’s next? A female on the bench of the High Court? Oh, wait ... Claire P, University of Oslo A timely reminder letter in the October LSJ . It is evidence that attitudes like his still remain in the profession, and exactly why we still need to turn our minds to diversity and flexibility in our sector. Gemma McKinnon, Sydney I wanted to thank you for publishing George Gell’s October edition, I thought I was re-reading September’s … only to realise I was just reading a similar letter to one which appeared in the earlier issue, both complaining about the too high representation of females in LSJ issues. I remind the authors of these letters that 48.62% of lawyers in NSW are female. Historically, legal practitioners have been predominantly male, but this is not the case anymore. There should be no issue with equal representation of both genders in this journal. I believe LSJ ’s recent issues have managed All equal in the law Reading Mailbag in the
ANEWGOLD STANDARD MICHAELKIRBYONNORTH KOREA,TRANSPARENCYAND SHAKINGUPTHEUN
THEROADTO PARTNERSHIP WHYLEGALSKILLSARE NOLONGERENOUGH
SAVETHECHILDREN ACAREERWITHUNICEF COURTROOMNOUS TIPSTOBOOSTYOURCONFIDENCE JUDGINGCAPACITY DEALINGWITHDEMENTIA ALLABOUTME SURVIVINGOFFICENARCISSISM
23/09/2014 2:52 pm
WRITE TO US: We would love to hear your views on the news! The author of our favourite letter each month will WIN LUNCH FOR FOUR at the Law Society dining room . Email: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! This month’s winner of lunch for four is JAMES RYAN. open to challenge by an oender. Her Honour stated, however, that the victim impact statement legislation “does not appear to envisage that cross-examination of the content of the statement would be permitted”. If the prosecution is put to proof by the defence on a factual issue in a victim impact statement the court has to decide whether the harm is foreseeable. Of course, the prosecution may then seek to formally prove the contested factual issue but in practice (especially in cases involving the death of a person) this will be rare. Hugh Donnelly, via email
equal representation of both genders, and have been reflective of today’s membership base. Hayley Aldrich, Sydney
to establish aggravating circumstances, is always
8 LSJ I NOVEMBER 2014
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NOVEMBER 2014 I LSJ 9
NEWPRESIDENT FOR YOUNG LAWYERS
SPECACCAREASANNOUNCED The Specialist Accreditation Board has announced that in 2015 practitioners will be given the opportunity to seek accreditation in the areas of: • Business law • Commercial litigation • Criminal law • Family law • Property law • Wills and estates law Law Society members interested in gaining accreditation in one of these areas are invited to visit lawsociety.com.au/specialists for information and to register their interest. CYBERSECURITY INFOCUS The Law Society will focus on the hot topic of cyber security at the next Thought Leadership seminar to be held on 1 December. Escalating security threats and the rise of cyber attacks make cyber defence vital, yet consensus on the ethics of cyber security is still to be achieved. Select panellists will ask how public trust can be strengthened and security overreach avoided. Cyber security is costing the global economy between an estimated $375 billion and $575 billion a year. In May the US indicted five Chinese military ocials in a US court for installing malware and stealing trade secrets from US firms. NATO recently established a trust fund for Ukraine dedicated solely to cyber defence. At home, the Federal Government is drafting laws to store metadata for up to two years on national security grounds. Panellists will include Professor Roger Bradbury, co-ordinator, National Security Research, National Security College ANU; Major General Stephen Day, future co-ordinator, Australia Cyber Security Centre; and Bret Walker SC, St James’ Hall Chambers. For more information visit lawsociety.com.au/ ForSolictors/Events/CLEeventscalendar/Detail/ index . lawsociety.com.au/specialists
The next few months will be rewarding for Elias Yamine, the new president of NSW Young Lawyers. The 34-year-old will take on the new role, complete a Master of Applied Law (Commercial Litigation) and, in January, welcome his second child. Still, the University of Western Sydney graduate, who is a senior associate in Bartier Perry’s Commercial Litigation and Dispute Resolution Group, is excited at the chance to make a di¢erence to the profession he loves.
“I always wanted to be lawyer,” he says. “I wanted to give back to the community and I enjoy talking, so law made sense. It has worked out well because working in commercial litigation I spend a lot of time in courts, speaking up before judges.” Young Lawyers has more than 15,000 members and is the State’s only body representing young and newly practising lawyers as well as law students. The association, now in its 52nd year, o¢ers networking opportunities, learning experiences and channels for members to contribute to the legal profession. Membership is free and automatic for all NSW lawyers under 36, as well as all lawyers in their first five years of practice and law students. Young Lawyers publishes practice and careers guides to assist lawyers in their first few years of practice. This month, the organisation will launch the second edition of the Survive and Thrive Guide , which is designed to dispel the myths about working as a lawyer in the first few years. “Mental health and wellbeing will continue to be a key priority for us,” Yamine says. His aims also include providing resources to graduate lawyers seeking to enter the profession. “A career in law isn’t just about working in a top-tier firm,” he says. “It’s not just about private practice. There are options available to work in the public sector and for not-for-profit organisations. The key is to arm our members with information about all of the options so that they can make informed decisions”. Yamine grew up in south-western Sydney and studied a double degree in commerce and law at the University of Western Sydney. The fourth of five children of Lebanese parents, he says working in the law is “a privilege” and “the chance to make a real di¢erence”. His wife, Sandra, is an in-house lawyer and the couple have a four-year-old daughter. Yamine, who has been vice-president, executive councillor, chair of the Civil Litigation Committee from 2010 to 2012, a member of the Law Society’s Litigation Law & Practice Committee and the Law Society’s representative on the Supreme Court of NSW Common Law Civil User Group for two years, replaces Thomas Spohr as president. His first task as president will be to launch a two-year strategic plan for NSW Young Lawyers. He intends to use social media as a tool to reach out to more of its members. Elias Yamine, president, NSW Young Lawyers
10 LSJ I NOVEMBER 2014
FIRST ABORIGINALWOMAN WITHLAWPHDGRADUATES FROMMACQUARIEUNIVERSITY
OZPOST JOINSPEXA Australia Post has joined forces with Australia’s new online property exchange, Property Exchange Australia Ltd (PEXA), to undertake identity verification of its e-conveyancing subscribers, including property lawyers and conveyancers. As part of the deal, Australia Post will also oer verification of identity (VOI) services to property lawyers and conveyancers’ clients at more than 1500 participating post oces nationally. “By working with Australia Post, PEXA continues to take distance and geography out of the property exchange process,” said PEXA Ltd CEO Marcus Price. “There are two key steps in a property transaction that require a physical meeting of parties; the VOI check and physical attendance at settlement. Australia Post removes the first while PEXA takes care of the rest through its online lodgement and financial settlement capability.” Price said the partnership opened up new business horizons for property lawyers and conveyancers who would be able to operate nationally, if certified to do so, without geographical constraints. To find out more about PEXA go to ULSCMEMBERSANNOUNCED The NSW and Victorian Attorneys-General have announced the inaugural members of the Uniform Legal Services Council. The council will play a key role in the new Uniform Legal Services Scheme, which aims to reduce the complexity of legal services regulation across Victoria and NSW. The Hon Michael Black AC QC, former Chief Justice of the Federal Court, is the council’s first chair. The four council members joining him are Fiona Bennett, member of the Legal Services Board (Victoria) since 2008 and chairperson since 2013, Kim Boettcher, a lawyer with experience in corporate governance, consumer advocacy and practice in the UK and Australia, Steven Stevens, the nominee of the Law Council of Australia, former president of the Law Institute of Victoria and director of the Law Council of Australia, and Bret Walker SC, the nominee of the Australian Bar Association and a former president of both the Law Council of Australia and the NSW Bar. Both the Victorian and NSW Parliaments have passed legislation applying the Legal Profession Uniform Law to reduce red tape and create consistency between the jurisdictions. The new scheme will begin in the first half of 2015. pexa.com.au
Dr Virginia Marshall (pictured left with deputy chancellor Elizabeth Crouch) is the first Aboriginal woman to gain a PhD in law from Macquarie University with her thesis topic, “A web of Aboriginal water rights: Examining the competing Aboriginal claim for water property rights and interests in Australia”. Gaining her doctorate this year marks the end of a
long journey for Marshall, who left school after completing Year 10 and pursued a professional music career as an opera singer, both in Australia and Europe. Following the birth of her fourth child, Marshall decided to find a new career. She completed a certificate IV at TAFE and went on to complete six degrees in five and a half years, while also working in roles as diverse as Aboriginal discovery ranger, lecturer at the NSW Police Academy and legal aid lawyer. After completing her Law Masters at the Australian National University, Marshall gained entry as a doctoral candidate at the Macquarie Law School. Marshall’s thesis examines Aboriginal concepts and values of water, and proposes that Aboriginal values not only exist as ancestral rights, but should be formally incorporated within the body of Australian water law. It examines the general failure of the Australian legal system to formalise Aboriginal peoples’ ownership of water as an Aboriginal property right. The thesis recounts how Western and European policies and laws sought to frustrate and exclude Aboriginal peoples from their inherent relationship with water, and how the development of Australian law post- contact has impeded the recognition and protection of Aboriginal rights to water. It develops an Aboriginal perspective on the impact of native title in respect to Aboriginal water rights and interests, and seeks to analyse the Western and European treatment of Aboriginal water values, customs and practices in Australia. The thesis examines the overall impact of the Water Act 2007 (Cth) and the Water Amendment Act 2008 (Cth) and further amending legislation on Aboriginal communities’ water rights and interests, the broad experience of Aboriginal communities within the Murray-Darling Basin, and the eect of the proposed water reforms by the Murray-Darling Basin Authority. Marshall aims to publish the thesis as a legal research textbook.
NOVEMBER 2014 I LSJ 11
YOUNGGUNS LEARN ABOUT LAW
On 10 September 2014, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Michael Anthony Spillane be removed from the Roll of Local Lawyers On 27 August 2014, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Lorenzo Flammia be removed from the Roll of Local Lawyers. On 18 September 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Frontier Law Group Pty Limited (Id: 15909), formerly conducted by Thomas Gerard Feerick. The Council of the Law Society of New South Wales, at a meeting on 18 September 2014, resolved to immediately suspend the practising certificate of Thomas Gerard Feerick pursuant to section 548 of the Legal Profession Act 2004 . The Council of the Law Society of New South Wales, at a meeting on 26 September 2014, resolved to revoke its suspension on 29 July 2014 of the practising certificate of Patricia Maria Jenman. On 26 September 2014, the Council of the Law Society of New South Wales resolved to terminate the following manager appointment as of 12 noon: Richard Stephen Savage as manager of the law practise known as Jenman Lawyers, inc Karageorge & Co Solicitors. SUPPORT STAFF RAISE AGLASS The Law Society’s Annual Legal Support Training Cocktail Party on 9 October brought together paralegals, legal assistants, receptionists, court clerks, administrators and oce managers to network and share ideas. Representatives from the NSW Online Registry website project were also in attendance to introduce the courts’ online registry services. As guest speaker, Michele Kearns, clerk to Martin Place Chambers, gave a fascinating talk on how to interact with barristers’ chambers, sprinkled with a healthy dose of humour and the odd fascinating war story. Kearns has been a barrister’s clerk for 24 years and is the seventh most senior clerk in NSW.
In early 2010, NSW Young Lawyers established a group called the Justice Education Team. The aim of the team was to educate young people on the topic of social justice and encourage them to become more actively engaged members of our society.
Wenona students enjoying the Law & Justice program at State Parliament.
In 2011 the Justice Education Team began running Law & Justice Leadership Conferences for upper-level primary school students in western Sydney. Over the years, the program has been developed and an array of public and private primary and secondary schools now participate. The program won a national award in 2013 from the Law Council of Australia in recognition of its impact and importance. This year the program was rebranded as Young Justice, with students invited to participate in two programs at NSW Parliament House – one for Years 5 and 6 and another for Years 7 and 8, each with about 100 students attending. The programs o£ered a unique opportunity for students to come together to explore, learn and discuss issues of law and justice, with the aim to inspire and equip future leaders to make a di£erence to local and global issues of injustice. The programs included a number of workshops reflecting a variety of issues such as human rights, children’s rights, animal rights, environmental issues and poverty. The presenters were experts in their fields and organisations involved included UNICEF, Amnesty International, Palmera and the Australian Youth Climate Coalition. The interactive nature of the sessions and the willingness of presenters to answer all questions and o£er practical suggestions as to what students could do themselves, was highly regarded. The students involved indicated they would return to their peers with a greater awareness and passion for social justice and inspiration to develop their leadership skills to make positive change.
12 LSJ I NOVEMBER 2014
LAW SOCIETY SEEKS PRE¤ELECTION COMMITMENTS TO CONSTRUCTIVE LAWREFORM
Each year, the Law Society of NSW makes submissions on proposals for new policies and law reform and suggests improvements to the operation of the justice system.
The 2015 State Election Policy Platform – Balance.Rights. Justice. – builds on that body of work, calling on candidates to make a commitment to constructive law and policy reform in the lead-up to the election on 28 March 2015. The eight areas covered by the policy platform have been identified by members as raising issues of particular importance, although there are undoubtedly many more that could be added. A balanced approach is essential to criminal justice, particularly in relation to the state’s new mandatory sentencing laws, which are unjust and should be repealed. Injury compensation matters remain a serious concern, with the full impact of the 2012 workers compensation reforms now being felt. The critical role played by lawyers in securing access to justice is also highlighted including by permitting people to choose whether or not they wish to be represented in courts and tribunals. The Law Society is inviting political leaders to respond to these issues, which fall under three key headings. Sentencing The Law Society of NSW calls on all parties to: • Reject mandatory sentencing and repeal laws that impose minimum terms of imprisonment; • Provide for flexible sentencing options across NSW; • Take urgent action to reduce the disproportionately high number of Indigenous people in NSW prisons. Bail The Law Society of NSW calls on all parties to: • Stop knee-jerk amendments to the Bail Act ; • Reject the “show cause” test requiring defendants to justify their own bail; • Evaluate the impact of the Bail Act on young people to ensure unnecessary remand is avoided. A balanced criminal justice system
• Fix the dysfunctional dispute resolution system for workers compensation disputes. CTP motor accidents insurance The Law Society of NSW calls on all parties to: • Maintain fair entitlements for people injured in motor vehicle accidents for as long as they need them; • Continue making improvements to the CTP claim and dispute resolution processes; • Preserve access to legal advice for CTP claims. Government powers The Law Society of NSW calls on all parties to: • Repeal anti-bikie and consorting laws which criminalise non-criminal behaviour; • Ensure legislation on police powers protects rights; • Improve outcomes for Indigenous children in the care and protection system.
Access to justice
Court accessibility The Law Society of NSW calls on all parties to:
• Ensure adequate funding for judiciary and court sta; • Improve court coverage in regional and suburban areas; • Reduce court filing fees and limit future increases to CPI. Justice funding The Law Society of NSW calls on all parties to: • Ensure adequate funding for legal aid from NSW Treasury; • Ensure adequate funding for the NSW Oce of the Director of Public Prosecutions; • Commit to ongoing funding of the telephone service for Aboriginal people taken into custody. Role of lawyers The Law Society of NSW calls on all parties to: • Arm the role of lawyers in providing legal services to the community; • Give people the right to choose to have legal representation in courts and tribunals; • Draw on the knowledge and expertise of the legal profession in developing and implementing policy.
Workers compensation The Law Society of NSW calls on all parties to: • Restore fair compensation for injured workers; • Reform the over-complicated work capacity review process and abolish restrictions on access to legal advice;
NOVEMBER 2014 I LSJ 13
PACIFICWOMENTHINKBIG On 8 August the Australian Professional Pacific Women Symposium was inaugurated. The main initiative of the forum, titled “Think Big Start Small Symposium”, was to open dialogue among professionals with the aim of increasing participation of those of Pacific Islander background in professional and political life in Australia. The High Commissioner from the Kingdom of Tonga to Australia, HRH Princess Angelika Latufuipeka, delivered the keynote address about leadership. “As an Ambassador, my primary role is to develop and maintain relationships,” she said. “They call it in diplomacy as ‘deepening of relations’ between states and relations within the international community. As I see it, leadership is also about relationships and the ability to strike a balance within relations. On a personal level, leadership is not about my journey as a person who wears many hats, but journeying together with those around me. As the old adage remains: If you want to go fast, go alone; if you want to go far, go together.” The next panel discussion is in November on “The Islands and People at Risk” (in partnership with the University of Sydney) to discuss climate change and the islands in the Pacific.
LAW SOCIETY PRESIDENT ACKNOWLEDGES HALFCENTURIES Law Society president Ros Everett has recognised members of the Law Society of NSW with 50 years’ service. Some 29 solicitors from the class of 1964 qualified for their 50-year certificate this year, hailing from sole practice, small, medium and large firms, as well as academia, government and the corporate world. All have made significant contributions through their continued commitment to upholding the rule of law and enhancing justice and equity for all. Also included in this number were former presidents of suburban and regional law societies, as well as members of Law Society of NSW committees. Name Organisation Mr Anthony (Tony) Addison Addisons Mr Warren Ball Warren F. Ball & Co Mr Bohdan Bilinsky B Bilinsky & Co Mr John Fordham Fordham Lawyers
Mr David Gillingham Mr Malcolm Gledhill Mr Grahame Goldberg
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LEGAL EDUCATORSGET TOGETHER On 17 October, the Law Society hosted a reception for attendees at the 2014 CLEAA Conference (Continuing Legal Education Association of the Legal Services Council (pictured far right with Margaret Ryan from the ACT Law Society and Ronwyn North, former president of CLEAA), gave a short address. The conference was attended by representatives of legal education providers, state and federal government and law firms. Keynote speakers included The Hon Justice Michael Slattery, Supreme Court of NSW, The Hon George Hampel QC, Professor at Monash University and Her Honour Judge Felicity Hampel SC, County Court of Victoria. Australasia). Dale Boucher, CEO of
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14 LSJ I NOVEMBER 2014
BRIEFS FROM THE ARCHIVES
review THE YEAR IN 1990
Take a trip down memory lane through the pages of the Law Society Journal.
MOBILE PHONESNOLONGERANUPMARKET TOY The Journal reports that “the cellular mobile
telephone” is now an “essential adjunct” to
business and includes an item about how mobile phones work. “Roaming is the term used to describe movement from one service area to another,”
the Journal reports. “If your home base is
Motorola Brick Phone
NEWACCREDITED SPECIALISTS PLAN The issue of specialisation gains attention and the Society’s Family Law Committee proposes the introduction of accreditation of specialists to “improve the quality of service” and “significantly improve the image of the profession”. Specialisation is already in operation in Victoria and being actively promoted in Queensland and Western Australia, writes Joe Lynch, a member of the Family Law Committee. He writes: “NSW cannot aord to ignore the demand by the public for the introduction of specialisation and its promotion.” “Far from being an upmarket toy, the mobile telephone is now an essential adjunct to many businesses, as necessary as faxes, pagers, computers and photocopiers. Advertisements that refer to your vehicle as your potential second oce are not wrong.” LETTER TO THE EDITOR Sir: I have been in practice for the last 56 years and have seen many changes not only in the law but in the conduct and attitude of many embryonic and aspiring young solicitors in their disrespect for a very honourable profession and their indierent performance in the administration of their employment. The standard of professional conduct is being slowly eroded by a clique whose conduct not only to clients but to their professional brothers is abysmal. Ninety-nine per cent of claims against employers are caused by their negligence and “don’t care” attitude to responsibility. JOHN M RUGGERO Brisbane and you are travelling to or in Sydney, for example, then you are roaming. It doesn’t matter where you are, calls can still reach you from interstate or internationally. “Currently there are three types of cellular mobile telephones available in Australia: vehicle mounted, transportable and handheld ... All telephones are battery operated. Recharging takes approximately 12 hours.
WHAT’S NEW IN 1990? NSW has 10,874 practising solicitors in 2507 law firms of which 1628 are sole practitioners and 14 are megafirms employing 2500 solicitors. “It would be fair to say that except for the top 14 firms, conveyancing makes up a significant part of the income of the practitioners,” writes president Georey Roberson. “The profession is presently experiencing a quiet time in conveyancing due to the high interest rates. We are also awaiting legislation as a result of the so called ‘gazumping’ problem.”
The Crown Lands Act 1989 begins in May.
Radical new immigration laws and regulations are introduced by the Migration Legislation Amendment Act 1989. “The Policy Advice Manual comprises more than 70 booklets, approximately two feet high, unsequentially numbered, based upon colour code,” writes Adrian Joel, immigration law expert.
New barristers and solicitors admission rules begin, aecting legal practitioners who have qualified overseas.
GRADUATE NUMBERS Law Society of NSW president Georey Roberson writes that admission to the Sydney University Law School required a Higher School Certificate pass mark of 446 (out of 500), an average of 89 per cent in each subject. More than 50 per cent of current university graduates are women and the Law Society membership department reports that more than 25 per cent of the state’s 10,600 solicitors are women.
NOVEMBER 2014 I LSJ 15
BRIEFS OUT AND ABOUT
ANNUAL MEMBERS DINNER The Annual Members Dinner 2014 was held at the Museum of Contemporary Art in Sydney and was attended by more than 200 members from across the state. The Hon. Justice Beazley AO was the guest speaker (see page 24 for an extract of her speech) and money was raised for the president’s charity, Soldier On, via a silent auction of a Ben Quilty artwork – a portrait of Trooper Luke Korman at Tarin Kowt.
16 LSJ I NOVEMBER 2014
NOVEMBER 2014 I LSJ 17
BRIEFS CAREER MOVES
MEMBERS ON THE
JOHN TURNER Now a consultant at Nexus Law Group
GEOFF FARNSWORTH Now a partner in the
TOM LENNOX Now a partner in the banking & asset finance practice K&L Gates, Sydney
AEMELIA GROUNDS Now an associate Taylor Vinters, Singapore
NATHAN CECIL Now a partner in the transport practice Holding Redlich
transport practice Holding Redlich
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LOOKING AFTER YOUR FAMILY’S HEALTH LOO I AFTER YOUR FAMILY’S HEALTH LOOKING AFTER YOU FAMILY’S HEA TH LOOKING AFTE YOUR FAMILY’S HEALTH LOOKI AFTER YOUR FAMILY’S HEALTH LOOKING AFTER YOU FAMILY’S HEA TH
AS A MEMBER OF LAW SOCIETY OF NSW HEALTH PLAN, YOU CAN RELAX KNOWING YOUR HEALTH COVER IS IN GOOD HANDS. WHEN YOU TAKE OUT HOSPITAL AND EXTRAS COVER YOU CAN LOOK FORWARD TO: AS A MEMBER OF LAW SOCIETY OF NSW HEALTH PLAN, YOU CAN RELAX KNOWING YOUR HEALTH OVER IS I GOOD HANDS. WHEN YOU TAKE OUT HOSPITAL AND EXTRAS COVER YOU CAN LOOK FORWARD TO: loyalty maximums - each year we increase how much you can claim by 20% of the initial amount for most extras services (up to 6 years). On Law Society of NSW health plan, you can start at year 4 loyalty maximums* AS A MEMBER OF LAW SOCIETY OF NSW HEALTH PLAN, YOU CAN RELAX KNOWING YOUR HEALTH COVER IS IN GOOD HANDS. WHEN YOU TAKE OUT HOSPITAL AND EXTRAS OVER YOU CAN LOOK FORWARD TO: AS A MEMBER OF LAW SOCIETY OF NSW HEALTH PLAN, YOU CAN RELAX KNOWING YOUR HEALTH COVER IS IN GOOD HANDS. WHEN YOU TAKE OUT HOSPITAL AND EXTRAS COVER YOU CAN LOOK FORWARD TO: AS A MEMBER OF LAW SOCIETY OF NSW HEALTH PLAN, YOU CAN RELAX KNOWING YOUR HEALTH OVER IS IN G D HANDS. WHEN YOU TAKE OUT HOSPITAL AND EXTRAS COVER YO L K FOR ARD TO: AS A MEMBER OF LAW SOCIETY OF NSW HEALTH PLAN, YOU CAN RELAX KNOWING YOUR HEALTH COVER IS IN GOOD HANDS. WHEN YOU TAKE OUT HOSPITAL AND EXTRAS OVER YOU CAN LOOK FORWARD TO:
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keep your mind and body active with some great member discounts on things like gym memberships, movie vouchers and theme park entry. Visit bupa.com.au/memberexclusives for more information access our Living Well program for practical support and subsidised health programs to improve a health condition, including Nicotine Replacement Therapy, Weight Management Programs, Kids Swimming Programs, Gym Membership Fees and Yoga and Pilates courses+.
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bupa.com.au/corporate username: lawsociety password: healthplan
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134 135 and quote ID 400423 134 135 and quote ID 400423 bupa.com.au/corporate username: lawsociety password: healthplan *Applies after the first 12 months and increases every year for the first six years. Annual limits, waiting periods and fund rules apply. Available on most Corporate extras cover. **For most items covering general dental, physio and chiro services. Annual m ximu s, f nd rules and waiting periods apply. Major dental for VIC and SA members only. Excludes orthodontics and hospital treatments. Based on selected extras cover. #Gap free general dental and physiotherapy is available on Ultimate Corporate Health Cover and Corporate Advantage and Corporate Classic covers (gap free general dental only on Platinum Visitors Cover) when taken with hospital cover on a family membership, when treatment is provided by a Members First dentist or physiotherapist. Major dental only available in VIC and SA, excludes rthodontics and hospital tr atments. Annual limits, waiting periods and fund rules apply. Child dependants only. ~Available on Ultimate Corporate Health Cover, Corporate Advantage and Corporate Classic. +Kids swimming programs, Gym Membership fees, Yoga and Pilates require a Living Well approval form to be completed by your GP, physiotherapist, occupational therapist, chiropractor or medical specialist. Other benefit and recognition criteria apply. Bupa Australia Pty Ltd ABN 81 000 057 590. firstname.lastname@example.org email@example.com bupa.com.au/corporate username: lawsociety password: healthplan bupa.com.au/corporate username: lawsociety password: healthplan 134 135 and quote ID 400423 firstname.lastname@example.org
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NORTHERN IRELAND NORTHERN IRELAND
TACKLESABORTIONLAW Northern Ireland’s Stormont Department of Justice has recommended abortions be allowed in cases where the foetus has a lethal abnormality, reports the BBC. A public consultation will begin on a possible amendment to the criminal law on abortion, with opinions sought on changes to the law in cases of lethal foetal abnormality and rape. Lethal foetal abnormality is where an unborn baby has a condition that will lead to the foetus’s death in the womb or soon after birth. Justice Minister David Ford said he would make a “strong recommendation” for legislation allowing abortion where there was no chance of the foetus surviving or having a viable life. Ford has not made recommendations regarding abortion in cases of sexual assault. “This is a very emotive area and I want to clearly state that this consultation paper in no way represents proposals for abortion on demand,” he said. “It is not about the wider issues of abortion law, often labelled ‘pro-life’ and ‘pro-choice’. It is about considering legislative changes in two specific sets of circumstances.” Last year, Sarah Ewart raised the issue of the choices Northern Irish women had after she was told she was carrying a child with fatal foetal abnormalities.
Same-sex marriage is now legal in 32 American states, with the laws aecting more than 60 per cent of the US population, reports BBC News. The marriage equality movement achieved a critical victory in October when the Supreme Court – the highest court in the land – chose not to hear appeals against lower court decisions overturning same-sex marriage bans in five US states. Many now expect it is only a matter of time before marriage equality is available across the country, with the Supreme Court decision setting a potential precedent in Kansas, Montana, South Carolina and Wyoming. In the states that do not allow gay marriage, the laws vary greatly with some states allowing civil union laws granting couples the same rights as marriage. Other states have bans or constitutional amendments forbidding gay unions. Some states ban same-sex marriage, but will recognise gay couples married in other states. While the Supreme Court has not yet resolved the question of same-sex marriage nationally, legal analysts suggest the court might take up the issue if an appeals court rules in favour of a state- based same-sex marriage ban, thus creating a dispute among the circuit courts, with the highest court having to step in as referee.
showered Labour MP Stella Creasy with abuse via Twitter has been jailed for 18 weeks, according to BBC News. Peter Nunn sent the Twitter messages to Creasy after she campaigned to put novelist Jane Austen on the £10 note. The City of London Magistrates’ Court heard that Nunn re-tweeted posts threatening to rape the MP, and also branding her a “witch”. District Judge Elizabeth Roscoe found Nunn guilty of sending indecent, obscene and menacing messages, and also imposed a restraining order banning him from any contact with Creasy or Caroline Criado-Perez, who kick-started the Austen campaign. “[The] sentence for Peter Nunn is a step forward in recognising the distress and fear online harassment can cause,” said Creasy in a statement. “We now need to ensure our police and criminal justice services are better trained to identify the risks anyone receiving threats faces, whether these are made on or oine so that we can protect those being stalked. “Above all, we need to send a clear message that it isn’t for anyone to put up with being harassed via any medium – this is an old crime taking a new form online.”
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