LSJ - November 2015
THE HIGH (AND PAINFUL) COST OF SENDINGWOMEN TO PRISON FAMILIESDOING HARDTIME
THEENDOFLAWFIRMS? ACCLAIMED FUTURIST RICHARD SUSSKIND ON WHY LAW AS WE KNOW IT IS DYING
THEMYTHOF LAWFIRMDIVERSITY WHY IT’S TIME FOR MORE THAN JUST TALK LEARNINGHOWTOCAGE THERAGE AND WHY IT MIGHT SAVE YOUR CAREER 7 STEPS TOAMORERESILIENT YOU SMART WAYS TO BUILD A STRONGER SELF UNTANGLINGTHE TANGLEDWEB THE MURKY WORLD OF GRANNY FLATS
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P olicy issues have been high on the agenda over the past month. is included measures from the NSW Government aimed at curbing anti-social behaviour in social housing. Certain features of the Residential Tenancies and Housing Legislation Amendment (Public Housing – Antisocial Behaviour) Bill 2015 cause rule of law concerns, including removal of the NCAT’s discretion to consider decisions to evict social housing tenants in certain circumstances. However, the legislation was amended to ameliorate a number of concerns raised by the Law Society and the community legal sector. is includes allowing the NCAT some discretion to consider if an eviction would cause “undue hardship” to children, victims of violence, and people with a disability. e Court of Appeal judgment in Cram Fluid Power Pty Ltd v Green means injured workers are limited to a single claim for lump sum compensation, regardless of when the rst claim for a lump sum was made. e NSW Opposition introduced a Bill removing some of the unfairness surrounding this restriction by enabling a worker who made a claim for lump sum compensation in respect of an injury before 19 June 2012 to recommendations of the Joint Commonwealth – SWMartin Place Siege Review, additional factors now will be taken into account as part of the existing “unacceptable risk” test when assessing bail concerns in NSW. is includes an accused’s association or a liation with people or groups advocating support for terrorist acts or violent extremism. Only time will tell how the new law is applied. is year marks the 100th anniversary of commencement of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 , making provision for disappointed bene ciaries. To mark this occasion, in October the Law Society ran a CPD panel discussion, ‘One Hundred Years of Family Provision – have we gone too far?’ e prominent panel of speakers for this event included Justice Philip Hallen, Justice Geo Lindsay, solicitor Richard Neal and barristers John Arm eld and Lindsay Ellison SC. We were honoured to have NSW Attorney-General Gabrielle Upton MP as our keynote speaker for the Annual Members Dinner on 22 October. As is the tradition, the President’s Medal was presented at the dinner to two outstanding winners, Frere Green and Anthony Cahill. I was also delighted to announce the launch of Bona Fide Kitchen , a collection of recipes being sold by the Law Society in support of my chosen charity for the year, MND New South Wales which supports people with motor neurone disease. Bona Fide Kitchen is available for purchase via the Law Society website. make a further lump sum claim in respect of the same injury. In the wake of the Martin Place Siege and in line with the
NOVEMBER 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
It makes me really proud to announce that the LSJ was this year short-listed as a nalist in three categories at the prestigious 2015 Publish Awards. e Oscars of the Australian publishing industry, the Awards recognise Australia’s best in print and digital publishing. Our nomination in the categories of Cover of the Year, Association or Member Organisation Magazine of the Year, and Custom Magazine of the Year was a great achievement. e Cover of the Year category was the most hotly contested of all the categories, and our May 2015 edition was in the running against some big titles. As you may recall, that cover was graced with the faces of the Tanzanian Kili Kids, residents at an orphanage established by Australian lawyer John O’Reilly. I was lucky enough to meet all of those beautiful children, all of whom are now in need of sponsors. I would encourage all of you to visit communitiesassist.org to nd out more about the great work John and his team are doing, and also to consider becoming a sponsor parent to one (or more!) of the kids. It’s a fabulous way to support a fellow lawyer, give something back, and ensure the Kili Kids face a brighter future.
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
Michael Nguyen Photographer Jason McCormack Administration O cer Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 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
Louise Mathias is a barrister and
Ian Harvey is a barrister at
Elizabeth Mason is a clinical psychologist at the Clinical Research Unit for Anxiety and Depression at St Vincent’s Hospital. She writes about the success of online treatments for people with anxiety and depression. Health p54
Jane Southward is a journalist and Associate Editor of the LSJ . In this issue she writes our cover feature on the impact of NSW’s record number of women in prison on families and the legal fraternity. Famlies doing time p28
mediator at Elizabeth Street chambers. She argues that as well as intellectual IQ, lawyers should value more their emotional IQ when it comes to dealing with clients and colleagues. Hot topic p24
Third Floor Wentworth Chambers and Adjunct Professor of Law at Notre Dame University. Read the second part of his two-part series on public enquiries. The role and duties of lawyers assisting p74
Cover illustration: Andy Raubinger
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 DECEMBER 2015
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Louise Mathias explains why lawyers should take time to improve their emotional IQ 26 INFOCUS Joanne Gray recounts 35 successful years of the NSW Land and Environment Court 28 COVERSTORY Jane Southward probes into issues facing the increasing numbers of women in prison
Men in the profession examine why no one is taking diversity seriously 38 THEFUTUREOFLAW Dom Rolfe chats to futurist Richard Susskind about where the legal profession is headed 52 EXTRACURRICULAR Meet two Sydney lawyers producing a heartwarming film about cross-cultural love 54 MANAGEYOURTEMPER Anger is universal, explains Paul Phillips. It’s how you deal with it that counts
Why doctors are recommending iPads as counselling for mental health issues 57 GENEGENIE A test to determine your future health? Jenny Bromberger explains genetic testing 58 CITYGUIDE Dom Rolfe takes a spin through Copenhagen, the eclectic Danish city ruled by bicycles 62 YOUWISH Ute Junker samples rural Australian luxury at the Lake House in Daylesford, Victoria
6 LSJ I NOVEMBER 2015
8 MAILBAG 10 BRIEFS
68 ADVOCACY: THE LATEST IN LAW REFORM 70 EMPLOYMENTLAW: CONTRACTORS & UBER 73 CONSTITUTIONAL: FOREIGN INCURSIONS 74 PUBLIC INQUIRIES: COUNSEL ASSISTING PART 2 76 CLASSACTIONS: COMMON FUND APPLICATIONS 78 PLANNINGLAW: CERTIFIERS’ POWERS 80 CIVILAVIATION: CAPE TOWN CONVENTION 82 ELDERLAW: GRANNY FLATS AND LEGAL ISSUES 88 LEGALPROFESSIONUNIFORMLAW: FAQS 89 PROPERTY: COVENANT OR EASEMENT ? 90 ENVIRONMENT: LAW REFORM CONTROVERSY 92 INSURANCE: GUIDANCE ON SECTION 6 94 RISK: ESTATE BENEFICIARIES 95 CASENOTES: HCA, FCA, CRIMINAL, FAMILY &WILLS 84 COSTS: RECENT ASSESSMENT CASES 86 CHILDPROTECTION: KEY CHANGES
46 DOINGBUSINESS Etiquette, fashion and tips to do better in business 48 ADAY INTHELIFE Co s Harbour family
News and events from the legal world
14 PROFESSIONAL NOTICES 14 THE LSJ QUIZ 18 FROMTHEARCHIVES 19 CAREERMOVES Who moved where this month
lawyer Heather McKinnon
Book reviews, events and giveaways
66 NON BILLABLES
Yarns we can’t bill for 72 LIBRARYADDITIONS New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle
20 OUTANDABOUT 22 GLOBALFOCUS
Europe’s refugee crisis – or is it?
42 CAREERCOACH 44 CAREER101
Redfern Legal CEO Joanna Schulman
NOVEMBER 2015 I LSJ 7
LETTERS TO THE EDITOR
NSW lawyers orchestra Expressions of interest are sought from all musicians in the legal field across NSW to register to play in the first season of the NSW Lawyers Orchestra. It is anticipated that the orchestra will be established at the beginning of law term 2016. The orchestra will have two concerts a year, in June and November. February to June 2016 will be the first season. July to November 2016 will be the second season. Music scores will be distributed to members two to four months before each concert and player’s practise in their own time. There will by four to six rehearsals prior to each concert. The orchestra is designed for busy legal practitioners and legal practitioners, legal employees or law students from rural NSW who cannot commute for weekly rehearsals. The conductor is Sydney barrister and experienced legal practitioner Peter Godkin. Before admission as a legal practitioner in NSW, Peter was the head of music of a leading independent school in Sydney for several years. He is experienced in conceiving, planning and implementing large scale concerts featuring more than 600 performers to an audience of more than 1,200. Peter has conducted in the Sydney Opera House and is an experienced and inspiring orchestral trainer and conductor. Peter is a
ASIC and fraud I noted with interest the comment by Mr Donovan
graduate of the NSW State Conservatorium of Music and holds the Fellowship diploma in performance from Trinity College London. Players from all parts of NSW, rural, regional and metropolitan and those from country areas of NSW are encouraged to register. The orchestra is open to legal practitioners, other legal employees and law students representing general practice and all specialities. The goal of each concert is to culminate the months of work by many people who share a dream of combining their passion for music with their professional commitments in law; and wish to turn that dream into a reality. As the orchestra develops, we would welcome assistance from professional musicians who may tutor different sections in the orchestra; players will have the experience of playing in an orchestra and the added inspiration of opportunities that may arise to work with internationally renowned soloists. As the orchestra develops charities in both the arts and law, as well as take part in a variety of significant events. To register for the first season email your details including orchestra experience to shaddad@ lathamchambers.com.au Sarah Haddad, Latham Chambers it is expected that the orchestra will support
on electronic conveyancing practice. I have just been involved in a case where a false Form 484 was lodged with ASIC by a person hijacking a company in collaboration with minority members. ASIC accepted the false form without inquiry and the banks changed signatories on the basis of the false form so lodged. ASIC’s instructions state, “The cover sheet for this form must be signed by a current company officeholder. A resigning officer’s signature is not acceptable.” This means a “new” director can alone sign the instrument by which ASIC proceeds to notify the world that he is a director – and have that form accepted by ASIC on face value. I find it strange that ASIC does not require signatures of both a current and the incoming director on forms lodged on behalf of a company advising a change of office holders. Without a chain of signatures, there is no means of even a cursory check on the legitimacy of a Form 484. Given that ASIC now operates on a profit-making (more than “full cost recovery”) basis and contributes handsomely to the Federal Budget, I wonder whether the shield of the Crown would – or should – be available to protect ASIC from being sued in negligence were its casual acceptance of Form 484s to result in theft from, say, a self-managed superannuation fund via a bogus change of “directors”. Terry Dwyer, Dwyer Lawyers
EDSANTOWONFAMILY,FATHERHOODAND DOINGJUSTICE INTHEPUBLIC INTEREST
UNDERTHETABLE THEROLEOFLAWYERS INPREVENTING INSTITUTIONALCORRUPTION
WINNINGMOREBUSINESSINASIA YOURGUIDETOLURINGMORECLIENTS ISSTRESSREALLYMAKINGYOUFAT? WHENCAREERSANDGENESCOLLIDE WORKERSCOMPENSATIONREFORM AWINFOR INJUREDWORKERS? NO-ONELIKESAWORKPLACEBULLY THEFWC’SJURISDICTIONREVIEWED
24/09/2015 12:28 pm
WRITETOUS: We would love to hear your views on the news! The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! Terry Dwyer has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
8 LSJ I NOVEMBER 2015
NewNSWYoungLawyers President aiminghigh The new President of NSW Young Lawyers wants to raise the perceptions of the organisation and has confidence that the association will grow to become a peak professional body. BY KATE ALLMAN
R enée Bianchi is a full-time barrister, Deputy State crossfitter and tentative Tough Mudder participant in training. Somehow, she has also found time over the past seven years to be a vocal and inspiring contributor to NSW Young Lawyers. “Do I sleep? I’m not a great sleeper,” the 32-year-old admits. This high-achieving insomniac also has found time to build her practice as a barrister at 13th Floor St James Hall Chambers in Sydney, and contribute to a number of NSW Young Lawyers committees since she was admitted as a solicitor in 2008. Having acted as Vice- President in 2015, Bianchi will take over as President of NSW Young Lawyers in 2016. Bianchi is the first barrister to have come from the local high school in her home town of Dungog, a small country town north of Newcastle. “It just shows that whatever you dream can happen,” says Bianchi. “You’re not limited by the fact you might go to a country high school.” Despite small beginnings, Bianchi was always one to dream big. “I wanted to be a lawyer from the age of 10,” she recalls. “Mum and dad have no idea why. I have no lawyers in the family, they don’t know where I saw it or heard it, and at the age of 10 I didn’t really understand what university was.” In a surprising twist, Bianchi spent her first four years at Newcastle University studying biomedical science, before realising that her heart still lay with her childhood ambitions. In her fifth year, Bianchi began a postgraduate law degree, where her involvement in public speaking and debating spurred her decision to go to Commissioner of Girl Guides in NSW and the ACT, amateur
the bar, which she did in 2013. Also listed on her extensive resume is volunteer Deputy State Commissioner of Girl Guides in NSW and the ACT. She leads the areas of governance and risk management, with a personal focus on empowering girls and young women. For the same reasons that she educates Girl Guides as young as 12 about the strategic plan for their organisation, Bianchi wants to empower young lawyers in the legal profession. “We want Young Lawyers to be a peak professional body,” says Bianchi. “When people want to know something about the legal profession, we want to be top of mind, held in the same esteem as the Law Reform Commission or the Law Society of NSW. “There’s some perception out there that younger lawyers aren’t to be taken seriously. People think, ‘Oh, they’re young, they’re still learning.’ Yes, we are. But that doesn’t mean we don’t have great ideas or we can’t deliver on things.” NSW Young Lawyers covers a diverse demographic of about 15,000 members, ranging from law students struggling through their first exams to highly- qualified law firm partners. Bianchi is adamant that such a large number of legal professionals should be given their share of decision-making. “If we want the profession to respond to what its members want, we need to listen to young lawyers,” says Bianchi. “On a broader scale, if we want society to respond to what members want, then we need to be able to listen to a cross- section of the community. It’s really important for these young people to have a seat at any table. “We’re not just the leaders of tomorrow – we’re the leaders of today.”
“We’re not just the leaders of tomorrow–we’re the leaders of today.”
10 LSJ I NOVEMBER 2015
Evendinosaurs canuse newonlinecourt system BY KATE ALLMAN It’s easy to shop, bank, pay bills and even do tax returns online, so why are lawyers expected to converge in a primordial cluster outside the Sydney Downing Centre on Wednesday mornings simply to request their matter be adjourned for further call-over? Paula Carlton, Daryl Brown and Catherine McNairn, leaders of an innovative Justice Online project at the NSW Department of Justice, asked themselves the same question when they began developing the new online court system. “We are witnessing a demand-driven service revolution across all areas of business and our community,” said NSW Attorney General Gabrielle Upton. “People expect to be able to access services they need when and where they want.” Currently operating on a 12-week trial launched in September, the online court allows lawyers to avoid the often stressful and time-consuming process of appearing in person for simple civil matters. Instead of appearing before a judge, solicitors can request adjournments, submit requests for further particulars, and send messages between the Local Court Registrar and opposing parties via an online messaging system. Documents can be uploaded in support of applications, registrars can make orders, and solicitors will receive automatic email notifications when any of the above occurs in relation to their case. Lawyers also are no longer restricted by the traditional nine-to-five work day as any matters lodged up until 11.59pm will be registered that day. Such lodgements, applications and requests can be paid for online using a credit card and a simple screen that looks like an online shopping basket. Project manager Paula Carlton said feedback from both the bench and the bar so far had been overwhelmingly positive. “Even dinosaurs can use it,” said one barrister. The online system is expected to deliver major benefits to lawyers from outer suburbs and regional areas as they will no longer have to incur hefty costs associated with travelling, waiting and attending court. If successful, the new system will be rolled out across local courts in NSW next year. Visit onlineregistry.lawlink.nsw.gov.au/content/ for more information. C M Y CM MY CY CMY K Pianoconcert to raise funds for Arts LawCentre 5 November, 7pm The Arts Law Centre of Australia will hold a fundraising concert featuring world-renowned Australian pianist Simon Tedeschi in collaboration with celebrated jazz pianist Kevin Hunt. These musicians will perform a unique blend of classical and jazz styles to raise funds for the Arts Law Centre’s essential work in protecting the rights of Australian artists. The pair, who have entertained George W Bush, Vladimir Putin and the Crown Prince and Princess of Denmark, promises to serve up an entertaining mix of music from Bach to Duke Ellington, Gershwin and Brubeck. The concert will be held at the New Hall at Grammar School on Thursday, 5 November. Tickets: $60 / $30 students Visit trybooking.com/Booking/BookingEventSummary.aspx?eid=159333 for tickets.
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NOVEMBER 2015 I LSJ 11
Lawcover lets loose for 20-yearmilestone Lawcover held an event at the Museum of Sydney last month to celebrate 20 years of its Risk Management Education Program (RMEP).
INTEGRITY, FAIRNESSAND RESPECTREIGN SUPREME: GAGELER BY KLARA MAJOR This year’s NSW Young Lawyers State of the Profession address, held on 23 September, drew a crowd keen to gain wisdom from High Court Justice and 2015 NSW Young Lawyers patron Stephen Gageler. With an address intriguingly titled “Magna Carta and the Camel”, his Honour did not disappoint. Setting aside the more contemporary commercial concerns of practice, Justice Gageler focused on the personal responsibility of lawyers to uphold the core values of our legal system – values still relevant in the 800th anniversary year of the Magna Carta. He said the responsibility to “keep the law well” came down to integrity, fairness and respect. On integrity, Justice Gageler reminded his audience to tell the truth and be honest about the law. Lawyers must never give what purports to be legal opinion (just because you think it is what your client wants to hear), otherwise, he said, “you will not be practising law. You will be manipulating legal concepts to another end.” On fairness and the right to hear and be heard, he said, “If you don’t yet recognise the importance of a fair process, then wait until the first time you feel that you or your client has not had it. You will feel a sense of grievance. You will consider it an injustice.” Respect, he said, was essential for the “dignity of the individual who is the subject of legal rights and obligations and who by virtue of his or her personhood is entitled to due process of law”. Justice Gageler also reminded his young audience of the importance of professional courtesy and respect for earlier generations of legal practitioners. “I once referred to the doctrine of precedent as a white-fella’s version of respect for elders,” he said. “Listen to them or read what they say: you might just learn something.”
Lawcover implemented the landmark program in 1995 with the aim of changing solicitors’ behaviours towards the way they practised law. At the time, there had been an escalation in the number of professional negligence claims made against solicitors and premiums were threatening to double. The nature of legal practice behaviour had to change, and Lawcover responded with its RMEP. Twelve months into the widely supported program, an independent study found that practitioners who attended and actively participated in the RMEP changed their practice behaviour. They applied new risk management strategies and implemented systems and procedures to reduce the likelihood of claims of negligence against them. Twenty years on, the theme of behavioural change and improved practice management continues. Thousands have attended RMEP events and activities since its inception. “Believing in the effectiveness of the RMEP is one thing. When an actuary puts numbers in front of me that provide compelling evidence that the RMEP is effective … that is something quite different,” said Michael Halliday, chief executive officer of Lawcover. Law Society President John Eades noted his support for the RMEP and its contribution to good legal practice.
Top: Lawcover staff enjoying the festivities. Above: Law Society President John Eades in action.
12 LSJ I OCTOBER 2015
TWOWINNERSBETTERTHANONE FOR2015PRESIDENT’SMEDAL In an unusual outcome, this year there are two recipients of the 2015 Law Society President’s Medal, which was presented by John Eades at the Society’s Annual Members Dinner on 22 October. Frere Green, Associate Solicitor at Booth Brown Legal in Warren, was admitted to practice in 1972 and has lived in the Warren district of western NSW his entire life. He is the son of long-time local solicitor Eric Green and the grandson of HW Lovett, who founded historic local firm Lovett and Green, established in 1894. Those close to Frere note his compassion and sense of duty. The second recipient is legal author, speaker and former solicitor Tony Cahill. Tony was admitted to practice in 1981 and has worked for city firms and as a sole practitioner. In 2002 he took up legal writing and has co-authored a number of books on conveyancing and property. Cahill has been a member of the Society’s Property Law and Environmental, Planning and Development committees for many years. Eades said both recipients had made significant personal and professional contributions to the betterment of law and justice in the community.
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OCTOBER 2015 I LSJ 13
Students conquer thecoast Three university students tested the limits of their physical and mental fortitude in October, paddling on surf rescue boards from Palm Beach to Bondi in support of youth mental health.
Cross-examination Test your legal knowledge ...
1. Australians have a constitutional right to freedom of speech. True or false? 2. Name the first Indigenous Australian to be appointed senior counsel. 3. “Blackstone’s ratio”, formulated by English jurist Sir William
Blackstone, argues that it is better for x number of guilty persons to escape than one innocent suffer. According to Blackstone, what was the value of x? 4. What section of the Australian
Competition and Consumer Act 2010 (Cth) prohibits “misleading or deceptive conduct” in trade or commerce?
5. Before its name change in 2013,
what was the Federal Circuit Court of Australia formerly known as? 6. In what year was the court in question 5 established? 7. Who was the Sydney barrister depicted by artist Nigel Milson in the winning portrait of the 2015 Archibald Prize? 8. Name the NSW Attorney General. 9. What mode of transport did prisoner Ali Chanine (left) allegedly use to escape from police custody at the Sydney Downing Centre District Court in early October? 10. If you bill 70 per cent of an eight-hour work day, how many units will you charge? Answers on page 65.
William Slattery, a law student at the University of Technology and son of Supreme Court Justice Michael Slattery, was responsible for organising the first ever “Conquer the Coast” event on 3 October. Along with friends William Bodor and Evan England, Slattery completed an 42-kilometre open water paddle to raise awareness for Batyr, a social enterprise that focuses on preventative education in the area of young people’s mental health. After suffering three months of sore arms in training for the event, the students completed their gruelling challenge in seven hours and raised almost $6,000. There was a slight delay when the trio unwittingly paddled into a school of boiling fish – a great attraction for sharks – but a support boat towed them to the safety of deeper water before they reached their final port at North Bondi. Despite blue bottle stings and aching triceps, the students said their experience was far easier than overcoming the challenge of mental health issues. They welcome further donations via their online supporter page: give.everydayhero.com/au/ conquer-the-coast
The Council of the Law Society of NSW, at a meeting on 25
On 17 September 2015, by resolution of the Council pursuant to Section 327 (2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Stephen Savage, solicitor, was appointed for a period of two years as manager of the law practice formerly known as George Pikoulas, formerly conducted by George Pikoulas.
On 25 September 2015, by resolution of the Council pursuant to Section 327 (2)(b)(ii) of the Legal Profession Uniform Law (NSW), Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as V.L Macri Lawyers Pty Ltd, formerly conducted by Vince Larry Macri.
September 2015, resolved to immediately suspend the practising certificate of Vince Larry Macri pursuant to s.77 of the Legal Profession Uniform Law (NSW).
14 LSJ I NOVEMBER 2015
CHRIS HEATHCOTE six
The chief executive officer of the G20-backed Global Infrastructure Hub spoke at the Thought Leadership event at the Law Society of NSW on 16 October. KATE ALLMAN reports.
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In layman’s terms, what does the Global Infrastructure Project hope to achieve? The hub has come about because of concern at the G20 that information in the infrastructure sector is not being captured and shared among countries. This failure can lead to a huge inefficiency in the creation of investable projects. Any country looking to improve how infrastructure is procured will find a mass of information but no guide as to what information is most useful and appropriate given their situation. The hub will collect best practice in the different areas of infrastructure procurement and will make them available. The hub will not advise on specific projects nor invest in them. It is not a standard enforcing body, but will offer elements of standardisation, on a voluntary basis, where we feel it is appropriate. The hub also will look to use past experience to improve countries’ abilities to procure infrastructure and will, eventually, lead to a significant increase in investment ready projects What is unique about working in Australia? On the business side, you have access to loads of fantastic knowledge and capability. People are very generous with
their knowledge, they recognise that the more knowledge gets spread around, the more opportunities there are. It’s a great place to do work with Asia-Pacific. And it’s a great place to live. Most valuable learning experience in your career? After a few years in management consultancy and working for a water company in the UK, I was sent down here to Australia to finance Melbourne CityLink. New to the whole game of infrastructure and finance, I was thrust into a very large, very complex project, where we were putting quite a lot of money at risk in the project. The learning curve that I went on was just immense. A bit scary. It was a bit like the local yokels turning up at the sophisticated dinner. But as a local yokel I learnt a lot from it. Best piece of advice? Don’t be constrained by other people’s views. If you believe in something strongly enough, go out and try and make it happen. Better to do that than to accept perceived wisdom.
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NOVEMBER 2015 I LSJ 15
mind your ethics
TanyaWhitehouse wins 2015JusticeMedal The 2015 Justice Medal has been presented to Tanya Whitehouse for her commitment to protecting the rights of women and children affected by domestic violence in the Macarthur region of south-west Sydney for 22 years. As head of the Macarthur Women’s Domestic Violence Court Advocacy Service (MWDVCAS), Whitehouse has led the expansion of frontline services and advocated for reform. The award was presented by NSW Attorney General Gabrielle Upton MP at the 17th annual Justice Awards at Parliament House in Sydney last month. The Justice Awards recognise individuals and groups that have made an outstanding contribution to improving access to justice, especially for socially and economically disadvantaged people in NSW. Alistair Ferguson was named the winner of the Aboriginal Justice Award for his 20 years of work in the Bourke community, and in particular for his leadership of the Maranguka Justice Reinvestment Project, which addresses Aboriginal disadvantage. The Law and Justice Volunteer Award was presented to Leonie Duroux for her 23-year fight for justice for the families of three Aboriginal children murdered in Bowraville. Duroux’s efforts prompted a police taskforce, which in turn led to a parliamentary inquiry and change to the law. Salvos Legal and Salvos Legal Humanitarian won the Pro Bono Partnership award for their innovative The Law Society President’s Award was presented to Eric Butler for his outstanding contribution to the Law Society’s pro bono scheme. The Community Legal Centres NSW Award was presented to the volunteers at the Australian Centre for Disability Law, with the Criminal Justice Support Network volunteers at the Intellectual Disability Rights Service being highly commended in the same category. The Legal Information Access Centre (LIAC) Centre of Excellence Award was awarded jointly to Gunnedah Shire Library and Sutherland Shire Libraries. The dinner, attended by 300 people, began with a Welcome to Country given by Aunty Norma Ingram, and former Federal Court judge and ex-President of the Australian Human Rights Commission the Hon. Catherine Branson QC delivered the 2015 Law and Justice Address. For photos of the event, see page Out & About on page 20. model, which provides pro bono services to disadvantaged and marginalised people.
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
Remembering Rule9 BY LINDEN BARNES, SENIOR ETHICS SOLICITOR, THE LAW SOCIETY OF NSW The topic of the month this month is Rule 9 of the Conduct Rules: “A solicitor must not disclose any information which is confidential to a client”. This rule covers most information we find out about a client and is much broader than just privileged information. It can cover the fact that the client is our client – for instance, the negative implications of disclosing client names if we work in sensitive areas like family, bankruptcy or criminal law are obvious. Then there are the exceptions, including disclosing to other people in our practice, if the client consents, where the law compels us or if someone’s life is in peril (a lovely, old-fashioned phrase but a very confronting situation).
What is also important is our obligation to our fellow solicitors. This is not one of the rules that explicitly place a positive obligation on us to help a fellow solicitor. There are a couple of rules which do that. Rule 6, about undertakings, for instance, says that we must not ask of another solicitor an undertaking which they should not be giving. However, all our rules come with the overarching obligation to be courteous and professional. That should extend to helping each other comply with the rules. So, when we are asking another solicitor to disclose confidential information, make sure it is clear which exception applies. If the client is consenting, provide a good, reliable authority which we ourselves would be happy to accept. And do not object if the other solicitor has a different threshold for what they will accept.
It is, after all, their practising certificate on the line if they disclose in breach of Rule 9.
Community Legal Centres celebrate40years Julian Burnside AO QC, advocate for the rights of refugees, and Justice Virginia Bell AC, who was with Redfern Legal Centre in its early days, will help mark 40 years since the first Community Legal Centre (CLC) opened in NSW. The first CLC was set up in Redfern in 1975 with the aim of fighting for justice for everyone in the community, especially the disadvantaged and marginalised. NSW now has 38 CLCs offering free legal advice and advocating for the better and fairer laws. In 2014-15, CLCs in NSW provided advice to 58,428 clients and delivered a total of 74,754 advices. Alastair McEwin, Executive Director of Community Legal Centres NSW, invites supporters to two events on 19 and 20 November. For details visit: clcnsw.org.au
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What the committees are advocating this month ...
For the full round-up of Law Society advocacy, see pages 68 and 69.
Crowd-sourced equity funding The Business Law Committee responded to a Treasury Consultation Paper, “ Facilitating crowd-sourced equity funding and reducing compliance costs for small business”, noting that the Australian Government is committed to developing crowd– sourced equity funding legislation with the aim of introducing it to Parliament in 2015. The legislation will include investment caps to protect investors. Bail Act reform The Criminal Law Committee wrote to the NSW Attorney General about the report released by Judge Hatzistergos regarding his review of the recent amendments to the Bail Act 2013 . The Committee noted that, although the Government has indicated that it intends to adopt the report’s recommendations, the Committee holds concerns about several of them. Workers compensation The Injury Compensation Committee wrote to the NSW Government with respect to the impact of the above Court of Appeal decision which clarified the meaning of “one claim” in section 66A(1A) of the Workers Compensation Act 1987. It e ectively determined that a worker may only ever make one claim for permanent impairment compensation.
LAWSOCIETY’S CHARITY COOKBOOK RELEASED Bona Fide Kitchen , a cookbook of recipes from members of the Law Society, is now on sale. Whether you want to create a hearty main or need a sweet treat, the collection includes a delicious selection of recipes. Sixty-three diverse recipes, including ideas for breakfast, lunch, dinner and dessert provide something for every palate. The book is a collection from the heart and all proceeds raised will be donated to 2015 Society President John Eades’ nominated charity, MND New South Wales – an organisation that provides support to su erers of motor neurone disease: a progressive, terminal neurological disease with no known cure and no e ective treatment. You can order Bona Fide Kitchen for $34.95 via the Law Society website or purchase it at the Society shop on Level 1, 170 Phillip Street, Sydney.
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Briefs FROM THE ARCHIVES
review THE YEAR IN 2007
Take a trip down memory lane through the pages of the Law Society Journal.
Law Society president Geo Dunlevy writes about depression in the legal profession: “As the industrial relations debate begins to take centre stage in the lead-up to the Federal election, more commentary is focusing on the importance of being able to balance work/life family commitments in an era of changing workplace expectations.
RECORDNUMBEROF LAWYERS INNEWNSWCABINET
“Whatever happens on the industrial relations front, the harsh reality for our profession is that trying to achieve a work/life balance has always been a struggle for many lawyers.
The Australian Labor Party, led by Morris Iemma, wins a fourth four-year term on the March 24 election. Iemma becomes NSW Premier and selects a record number of politicians with legal training in his Cabinet. John Hatzistergos is named Attorney General and eight of the 22 ministers in the new Iemma Cabinet have legal qualifications. WOMENSOLICITORS The Journal reports new statistics showing the massive influx of women into the profession since the late 1980s. In 2007, the number of female solicitors in the state has risen by 336 per cent since 1988, according to the 2006 Profile of the Solicitors of NSW report. The number of male solicitors grew by a comparatively modest 50 per cent. Since 1988, the entire profession doubled in size – from 9,808 to 20,330 solicitors in NSW.
“So, it comes as no surprise that a recent survey by Beaton Consulting, in conjunction with the organisation beyondblue, has found lawyers experience the highest rates of depression out of all the professions in Australia ... In a sample study of 7,551 professionals, 15.2 per cent of lawyers su er or have su ered from depression and associated symptoms such as anxiety. What is alarming about this figure is that it is more than double the general population’s rate of 6.3 per cent. “Finding a solution to the problem of depression cannot be done in an instant. It will take time, money and can only be achieved through an ongoing commitment by all in the profession. But I strongly believe there is not much to be gained until we begin to invest in the very practitioners whose success makes or breaks the many firms, large or small, in our profession.” “Finding a solution to the problem of depression cannot be done in an instant. It will take time, money and can only be achieved through an ongoing commitment by all in the profession.” GEOFF DUNLEVY
WHAT’SNEW? The Australian Citizenship Act 2007 replaces the 1948 Act, commencing on 1 July 2007.
The first inquest into the deaths of the Balibo Five begins.
John Howard loses the Federal election on 3 December after 11 years as Prime Minister. Kevin Rudd takes over.
The Law Society of NSW and NSW Women Lawyers launch Work2Suit, a new network for part-timers.
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MEMBERS ON THE
BENPIKE Joined as partner DGB Lawyers
MICHAELPHILLIPS Joined as partner, Corporate Group Swaab Attorneys
CATHERINEHING Appointed to special counsel Gilchrist Connell, Sydney
VICTORIAGARRINGTON Joined as intellectual property counsel Swarovski AG (Liechtenstein)
MELYSHATURNBULL Now an associate Squire Patton Boggs
DAVIDHOWARTH Joined as special counsel, Commercial Insurance Sparke Helmore Lawyers, Sydney
REAYMCGUINNESS Joined as partner, Dispute Resolution Webb Henderson, Sydney
KATEHENDERSON Promoted to partner Beilby Poulden Costello
NIDAHYOUSSEF Promoted to associate, Family Law Matthews Folbigg
JENNIFERHUTTON Promoted to associate, Family Law Matthews Folbigg
VICTORLAU Joined as special counsel Pinsent Masons, Australia
MELANIEHARWOOD Joined as senior associate Pinsent Masons, Australia
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
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Briefs OUT AND ABOUT
TALENT SHINES AT JUSTICE AWARDS More than 300 guests turned out to Parliament House in Sydney last month to celebrate the prestigious Law and Justice Foundation’s annual Justice Awards. For a full round-up of the winners, see our news story on page 16.
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Briefs GLOBAL FOCUS
that the issue transformed into one of “common concern”. However, common positions on asylum remained under-developed because of the law-making structure at that time, based on inter-governmental cooperation rather than binding legal instruments. On 1 May 1999, the Treaty of Amsterdam entered into force, shifting immigration and asylum issues into a different domain. Now, asylum law and policy could be developed through a common regional approach that would bind the Member States under EU law. It was thought that the European Commission could take a more comprehensive approach, less driven by state self-interest, with supranational judicial controls providing positive restraint. However, Member States’ insistence on retaining certain control meant that, in reality, asylum law remained heavily influenced by domestic political concerns. It was in this context that the Common European Asylum System (CEAS) was devised in the late 90s/early 2000s. It sought to create a harmonised EU-wide approach to asylum seekers and refugees by minimising differences in the Member States’ law and practice, and ensuring that asylum procedures were as fair, consistent and effective as possible throughout the EU. From one perspective, the CEAS is one of the world’s best regional systems for protecting the rights of refugees. But one only has to look at the context in which it was agreed to see why it was always flawed. It is a product of compromise and remains open to interpretation – in very different ways. More fundamentally, though, it is based on the unrealistic idea that the consideration of asylum claims – and
Acrisis in collectivewill
With existing EU laws struggling to deal with the challenges of the recent refugee influx, PROFESSOR JANE McADAM argues that international cooperation – not unilateralism – is the only way forward.
in recent months to discuss how to deal with this refugee influx shows the lack of political solidarity. We have seen the best and worst of political leadership in European countries’ responses. Perhaps this is the inevitable outcome of what happens when a so-called regional system is left to individual national governments to implement, and fails to include proper mechanisms for responsibility-sharing. Until 1986, asylum and immigration passage of the Single European Act in 1986, which sought to create a European “space” free of internal border controls to realise the free movement of goods, workers, services and capital, precipitated consultations on the asylum question as well. It was not until the entry into force of the Maastricht Treaty in November 1993 (which created the European Union) policy remained in the realm of individual Member States. The
Barely a day goes by without a news story on Europe’s “refugee crisis”. Europe is not facing a refugee crisis, but rather a political crisis about a lack of collective will to respond to desperate people on the move. Europe has not gone to the Middle East to help refugees, so refugees are going to Europe to try to help themselves. Some 500,000 refugees and migrants have already entered Europe this year, with projections that many more will arrive before the year’s end. Meanwhile, Turkey, Jordan and Lebanon are sheltering some 3.6 million refugees, mostly Syrians who have fled the brutal civil war. They now comprise a quarter of Lebanon’s total population. On top of this, at least 7.6 million Syrians are displaced within Syria itself. This puts the numbers entering Europe into perspective. The many hours European leaders have spent locked in meetings
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