LSJ_November 2018

No drought about it How the big dry is affecting NSW lawyers and their communities Caring for the crew Why successful legal practices need to put their people first Vulnerable nomore? Analysing the outcomes of the Australian Consumer Law Review Approachwith caution The rewards and responsibilities of solicitors acting as executors

ISSUE 50 NOVEMBER 2018

Thebravenewworldof law Five key trends shaping the future of legal practice

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Contents

28

30

40

Features

26 Hot topic

36 Lawyers of the land

50 Career coach

Meet the Sydney lawyer leading the charge to fix legal loopholes that allow ivory to be traded in Australia

As the nation’s worst drought in more than 50 years continues, Melissa Coade reports on how communities are coping

Fiona Craig reveals the key attributes of a solid leader

52 Extracurricular

Kate Allman meets a law graduate using her legal skills to run a successful business

28 In focus

40 People power

A Harvard law graduate argues it’s time to change laws on the use of microdoses of LSD for the treatment of mental illness

Dominic Rolfe finds that a strategic approach to getting your sta right is as important as getting your systems right

54 Health

The latest on magnesium, a powerful nutrient that can improve sleep and reduce pain

30 Brave newworld

48 A day in the life

We uncover the key trends for legal practice from the Future of Law and Innovation in the Profession (FLIP) conference

Refugee and lawyer Fadak Alfayadh shares her passion for human rights and her very personal story of revival

58 Travel

The best of Florence and a dazzling Lake Como retreat

ISSUE 50 I NOVEMBER 2018 I LSJ 3

48

52

62

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove

68 Advocacy

80 Costs

The latest key developments in advocacy and law reform

Differentiating l imitation issues in solicitor/client costs disputes

71 Consumer law

82 Employment

Vulnerable consumers to benefit from new changes to Australian Consumer Law

The AHRC’s world first inquiry into sexual harassment in the workplace

84 Risk

74 FLIP

The duties for practitioners dealing with unrepresented litigants

23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career matters 46 Mindset 50 Doing business

The changing nature of legal practice and the growth of limited scope legal services

85 Wills and estates

The many guises of informal wills

77 Taxation

88 Wills and estates

Why effective succession planning depends on lawyers & accountants working together

Why lawyers should proceed with caution when it comes to acting as an executor

78 Child protection

90 Case notes

Working with Children scheme gets a re-boot in the wake of the Royal Commission

A wrap-up and analysis of the latest key judgments – HCA, FCA, Family, Wills & Estates and Criminal law

56 Fitness 64 Books 66 The case that changedme

70 Library additions 106 Avid for scandal

4 LSJ I ISSUE 50 I NOVEMBER 2018

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A word from the editor

If this month’s cover story fills you with a slight sense of dread, you’re not alone. For many lawyers, the idea of invasive and transformative technology sweeping into the profession and shattering the status quo is a terrifying notion. That’s perhaps why the Law Society’s inaugural Future of Law and Innovation in the Profession (FLIP) conference, held in Sydney in September, was so well attended – and so well

ISSN 2203-8906

Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist

received. There’s a strong sense of curiosity mixed with concern in the profession, as well as a growing perception that the legal industry is becoming increasingly vulnerable to disruption. The conference was, however, far from terrifying. Instead, there was a distinct energy, a discernible ripple of excitement and hope and possibility. The primary warning from the array of experts was, “Don’t put your head in the sand on this one.” The overriding message, however, was one of comfort; that no matter how far technology advances, pushes the boundaries and alters legal practice as we know it, there will always be a need for lawyers – human lawyers. The key is being savvy enough to realise that at the heart of this ongoing need for the human element is the requirement to put your clients’ needs at the centre of all that you do. If you do this, you’ve nothing to fear – disruption or otherwise.

Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty Editorial enquiries 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 © 2018 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Chaffey

Contributors

MELISSA COADE Lawyers of the land p36 Melissa is a lawyer and LSJ’ s Senior Journalist. Eighteen months into the nation’s worst drought in more than 50 years, she speaks with the rural lawyers, farmers and graziers whose clients and livestock are waiting for the dust to settle.

DOMINIC ROLFE People power p40 Dominic is a Sydney journalist and former Deputy Editor of sydney magazine. He reports on a key practice management issue –how a strategic approach to getting your staff right is as important as getting your systems right.

JIM MAIN Taxation p77

LAURA BIANCHI Consumer law p71 Laura is Redfern Legal Centre’s Credit, Debt and Consumer Law Solicitor. She reports on the latest changes to the Australian consumer law, and the key benefits the reforms will bring to vulnerable consumers.

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Jim is an Accredited Specialist, Business Law, a certified tax adviser and longtime LSJ contributor. This month, he explains why effective succession planning depends on accountants and solicitors working together.

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.

Cover design: Andy Raubinger

NEXT ISSUE: 1 DECEMBER 2018

6 LSJ I ISSUE 50 I NOVEMBER 2018

Ethics

Ethics

2019 LAW SOCIETY DIARY IN STOCK NOW GET IN QUICK, STOCKS ARE LIMITED lawsociety.com.au/diary DIARIES WILL BE DELIVERED FROM 1 NOVEMBER FACING AN ETHICAL DILEMMA?

FACING AN ETHICAL DILEMMA?

Contact the Law Society for practical, confidential guidance on ethical questions and complaints.

Contact the Law Society for practical, confidential guidance on ethical questions and complaints.

(02) 9926 0114 ethics@lawsociety.com.au

(02) 9926 0114 ethics@lawsociety.com.au

lawsociety.com.au

lawsociety.com.au

ISSUE 50 I NOVEMBER 2018 I LSJ 7

President’s message

I t’s now 12 months since the allegations of sexual harassment against Hollywood producer Harvey Weinstein surfaced and the global #MeToo movement was created, giving tens of thousands of women a voice to share their experiences of sexual harassment and assault in the workplace. Weeks after the first allegations of sexual misconduct against Weinstein were made, a tweet by Australian journalist Tracey Spicer asking people to “contact her privately with their story” ignited the #MeToo movement here in Australia. The stories of bullying and harassment that came to light put the spotlight firmly on alleged perpetrators in the entertainment industry. However, we know this is a problem in every sector. In our profession, we’ve been told that, globally, one in three

females lawyers has been sexually harassed in the workplace, and that very few of those women report this behaviour to the authorities. This is a situation that needs to change. The Law Society of NSW has long recognised the importance of addressing harassment and discrimination in the workplace, and it has been an important focus of our initiatives aimed at the advancement of women in the legal profession. We are committed to ensuring that practitioners comply with legal standards and meet community expectations in their practice, as evidenced by the rules relating to these issues in Continuing Professional Development. While the Law Society has been, and will continue to be, active in confronting sexual harassment in the wider legal profession, we recognise that growing community awareness of this issue presents new challenges for the profession. Through the relevant committees, we are revising the Equal Opportunity Handbook , first published by the Law Society in 2001. This handbook is designed to help NSW practitioners identify and eliminate discriminatory recruitment and employment practices in their workplaces. It includes practical insights to enable law firms and other organisations to carry out best practice in promoting equal opportunity in the workplace. The Law Society’s Human Rights, Employment Law and Diversity and Inclusion Committees have also prepared a preliminary submission in relation to the National Inquiry into Sexual Harassment in Australian Workplaces being undertaken by the Australian Human Rights Commission. Significantly, this inquiry is the first of its kind in the world. We are also conscious of the need for sensitivity training for professional standards solicitors who are dealing with victims of sexual assault. Our Professional Standards Department is refining the procedures for dealing with allegations of sexual assault and is working with the Bar Association and Legal Services Commissioner on a consistent approach to the investigations and findings. We are also looking at the obligations of principals and employees to each other and to non-legal staff in relation to bullying, discrimination and sexual harassment. We have more important initiatives in the pipeline, including an LSJ Speaker Series breakfast on sexual harassment in the workplace, and I look forward to sharing more details about these in the future.

Doug Humphreys OAM

8 LSJ I ISSUE 50 I NOVEMBER 2018

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ISSUE 50 I NOVEMBER 2018 I LSJ 9

ISSUE49 OCTOBER 2018

A hearty thanks Well done, Jane. Great work on “On the Bright Side: Five young lawyers boldly discuss living with mental illness” ( LSJ October). What a fantastic article, and I love the Word from the Editor. It’s fantastic to see so many people speaking up. I’m going to send it to a number of “not so young” people and many others in and outside the profession. Such good stories. It’s such a shame the Law Society doesn’t do more in this space, as they could make such a di erence and help so many people. However, maybe that’s a story for another day. Keep up your Relevant reading Wonderful cover story in LSJ October edition. Am so glad this is now being openly referred to in legal circles. So relevant to today’s (professional) world. Rachel Setti, organisational psychologist great work. Vicki Irvine edition of LSJ about solicitor Amani Haydar and the tragic event which took place in 2015. I cried as I read about the memory of her mother being honoured with the granting of a posthumous Bachelor’s degree, a degree which her mother had, no doubt, waited so long to be able to obtain. The paragraph in the article which stood out the most, however, was the one about Amani’s misconceptions, before her mother’s death, about what kind of men were capable of abuse and murder Touching account I read the gripping article in the September

circumstances surrounding the murder. I read each and every comment on each and every post about the story – I always do when it comes to topics of domestic violence, hoping, each and every time, that opinions regarding the issue have changed, and being reminded, each and every time, of the woeful ignorance about the crime of domestic violence. A woman, stabbed by her husband, and thousands of men and women were touting absurd, alarming philosophies – blaming the country of birth, blaming the woman, blaming religion. If Salwa could read the comments being made, I believe she would weep. Not so much for her life which ended too soon, her aspirations, hopes and dreams which would not be realised, but for the abundance of fallacies surrounding the reason why the man she once promised to spend the rest of her life with felt compelled to stab her body until it was lifeless. She would scream that it had nothing to do with his religion. She would cry that his faith played no role – “if only he had heeded the words in our religious texts, I would still be alive”, she would lament. At the risk of sounding like Cole Sear from The Sixth Sense, I can see all the women who have died at the hands of their violent partner. They are all saying the same thing – that

their deaths originated from a sense of entitlement their partner felt, that they stayed because their self-esteem had been eroded to the point where the relationship was all they had, that the tearful apologies which followed every episode of violence made them think that maybe, just maybe, the violent man will change. Let us honour these women. Especially, as lawyers, let us learn about domestic violence – the causes, the warning signs, the prevention. Let us speak out when we hear ill-informed notions about domestic violence. Let us stop blaming religions and alcohol and suburbs and income. Let us stop criticising women for poor partner choices. Domestic violence is not a result of poverty (Kay Schuback was strangled by her partner in their posh Point Piper apartment) or of alcohol (Luke Batty was murdered by his very sober father) or religion or culture. It is the child of entitlement, underpinned by coercive control. Alexia Ereboni Yazdani, Hillside Legal Quality read Thank you for your excellent article on alcohol and the law ( LSJ September). It was a great pleasure to see the time and e ort you put into crafting such a high-quality piece of writing. Greg de Moore

ISSUE49 OCTOBER2018

Speakingmy language Themultilingual lawyersproving the valueofculturaldiversity Againstthetide TheSydney lawyer shaping refugeepolicyat theUNHCR Outingthe introverts Whyunderstanding yourquieter teammembersholdsgreatbenefits Acasualconundrum Substanceover formprevails inemployment relationships

Onthe bright side Fiveyoung lawyersboldlydiscuss livingwithmental illness

PLUS: ESSENTIALUPDATESON LAWREFORM,ENVIRONMENTAL&CRIMINAL LAW

LSJ09_Cover_October2018FINAL.indd 1

20/9/18 4:02pm

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: letters@lawsociety.com.au

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

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

CONGRATULATIONS! Alexia Ereboni Yazdani has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

– misconceptions which, unfortunately, are all too common.

I remember the case gained

intense public and media attention and this trickled

down to a barrage of opinion on social media sites about the

10 LSJ I ISSUE 50 I NOVEMBER 2018

A lovely lunch I availed myself today of the generous prize I received for a letter published in the May 2017 LSJ . I take this opportunity to thank you for providing an enjoyable lunch for my wife, daughters and me. As one of my daughters is presently in Sydney from Darwin, the Law Society Dining Room was the perfect venue for a pleasant family luncheon. Peter Poulton Idiocy I heard your podcast on alcohol abuse in the law ( O the Record , episode one). How can you be surprised that no lawyer wants to go on record and announce publicly to the Law Society that they have battled a drinking problem? That is idiotic. Even if the lawyer was certain they would not go back to drinking the way they once did, which no alcoholic can ever be certain of, it would destroy a reputation. There is a stigma precisely because it says the lawyer may have bad judgment and be unstable, which is absolutely correct when one is drinking too much. No one wants a professional attending to their health, finances or legal matters when riddled with instability and poor judgment, hoping the day they operate on you, attend to your tax return, appear in court for you is a “good” day. This is not a cruel stigma cooked up by society. The reality is people are less good at their job when struggling with a drinking problem, whether they are technically functioning or high functioning or whatever. So why would anyone announce they have one? I think it is idiotic that you are surprised by this. Caitlin Kelly

What makes a bully? I will be interested to see what the definition of bullying is as it applies to lawyers. Will it be bullying to ask an employee to turn up on time, record budgeted billable hours, respond to emails or other communications outside of working hours, being held accountable for work and performance, adjusting holidays to meet the requirements of the legal practice and its need to make a profit and to compete with other legal practices for clients. Would a negative review of performance be bullying, or not speaking to you in a manner that you feel comfortable? Would requiring you not to browse your social media during working hours be too much to ask? Given the varying personalities and level of sensitivity of people, how would an employer determine what is appropriate? I have witnessed the legal profession, as practised privately, become more competitive and the profit margins reduce dramatically over the past 30 years. Perhaps this should be taken into account when the definition of what amounts to bullying is defined. It is irritating enough when people continue to claim there is a pay gap when the evidence is overwhelming that it is an earnings di erence. Perhaps the younger generation of lawyers may need to toughen up. Brendan Manning Confidentiality breach? Am I the only one wondering how Tim Watson-Munro was able to write A Shrink in the Clink without breaching confidentiality? And why LSJ didn’t even mention this concern it its review given solicitors’ ethical obligations? Sarah Perkins

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ISSUE 50 I NOVEMBER 2018 I LSJ 11

“Important recovery stories like these will help others clear hurdles and turn corners in getting help and starting needed healing. Thank you for sharing and posting on this platform.” Dan DeFoe, LinkedIn “BrillIant piece. So very well done. Always an enjoyable read and yes, I second what you have said Dan DeFoe, these stories as so important. Others need to know that they are not alone in this. SO important to ask for help when it is needed and even more important to take time to give help when it is requested. I believe this comes with the territory of the profession.” Jocelynne Joy Houghton, LinkedIn

“Improve our working conditions, stop the endemic bullying, more quality, less billables. Watch us grow as

people and lawyers.” Lou Steer, Facebook

Wonderful! She describes the qualities of your paintings so well and so beautifully. Nicole Vaughan, Instagram Yes – Her writing is lovely! Amani Haydar, Instagram I read the feature after seeing it on your story. It was so eloquent!!!! The author did a fantastic job mashallah. One of the things that I’d never considered regarding the already traumatising process of going through the court system, was what you mentioned about the airtime perpetrators get in court to present themselves in the best possible light through character references etc. That really bothered me, because it’d feel like another dimension of gaslighting in a way, adding insult to injury. I can’t imagine how difficult it is bringing your experiences to light, Amani, but everyone is better for your thoughts, your words and your art. And I pray you are too dear Jinan DX, Instagram

“Amazing!” – Alice Pailthorpe, Facebook

“Wow what a champion!” – Kamini Allison, Facebook

“A very admirable man.” – Alan McLennan, Facebook

“Well done Frank Dearn, inspiration to many.” – Nicholas Coleman, Facebook

“Frank, you are seriously incredible. Hats off to you.” – Natalie Chapman, LinkedIn

12 LSJ I ISSUE 50 I NOVEMBER 2018

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ISSUE 50 I NOVEMBER 2018 I LSJ 13

Briefs NEWS

Services, services, services to stemprison numbers

More services and early interventions as well as better collaboration between agencies are needed to stem the increase in prison numbers in NSW, a panel heard at a Law Society Thought Leadership event on 23 October. BY JANE SOUTWHARD

From left, Assistant Commissioner Luke Grant of Corrective Services, Sarah Hopkins of Just Reinvest NSW, Melanie Hawyes, Director of Juvenile Justice, the Drug Court’s Judge Roger Dive, and Carolyn Jones of Women’s Legal Service at the Law Society Thought Leadership event on prison populations.

A ustralia has a higher incarceration rate than Society President Doug Humphreys said the rising number of people in prison in NSW was something lawyers and all citizens should lobby politicians about leading up to the March State election. Sarah Hopkins of Just Reinvest NSW and Aboriginal Legal Service NSW/ACT chaired the panel, which included Drug Court Judge Roger Dive, Assistant Commissioner Luke Grant of Corrective Services, Director of Juvenile Justice Melanie Hawyes, and Women’s Legal Service’s Carolyn Jones. Humphreys said the rate of Indigenous incarceration was “a national shame” and that court delays, particularly in the District Court, were causing unacceptable numbers of people in prison on remand. Assistant Commissioner Grant said some NSW prison cells had not changed, apart from the addition of toilets, since they were built in the any other major common law country, except for the United States, and Law

19th century. He welcomed additional government funding of $3.9 million over four years, which would bring 7,000 new prison beds to NSW, and called for a close look at the remand system in which 50 per cent of prisoners were incarcerated, sometimes for years, and then did not end up receiving a custodial sentence. Grant said the NSW prison population was 13,271, of which 33 per cent were on remand. is compared with 6,400 in prison in 1994, including 11 per cent on remand when he joined Corrective Services. He said an overhaul of sentencing introduced in late September was improving the system and that prison numbers were falling by 20 people each day due to new arrangements. Judge Dive called for more funding for drug courts, which he said had proven their worth and demonstrated the value of agencies such as the Health Department, Corrective Services, Housing and Justice working together. Last year, 96 people had applied to join the drug court program but had been refused due to a lack of funding.

He said 57 per cent of participants in the drug court (165 last year) did not return to jail. Melanie Hawyes, Director of Juvenile Justice, had some good news, saying the number of juveniles in detention in NSW had fallen in the past 10 years. She said between 260 and 290 young people were locked up in NSW at any time, adding that “all the e ort is on keeping kids out of detention”. Hawyes pointed to several early intervention community-based programs that were small but showing success through intensive case management. She called for greater understanding and resources into the e ect of trauma on children. Carolyn Jones, who works with women who have often been raped and assaulted as children, raised in poverty and/or have cognitive impairment, called for more resources for specialised legal services for women and the abolition of short sentences for women. “ e imprisonment of primary carers should be used only as a last resort,” Jones said.

14 LSJ I ISSUE 50 I NOVEMBER 2018

NEWS

NEWTHISMONTH Next LSJ

Influencers

by

Speaker Series You are invited to a special LSJ breakfast event at the Law Society of NSW on 28 November which will cover the issue of sexual harassment in the legal profession. 2017 and 2018 have seen vast numbers of women speak out to share stories of victimisation using #MeToo, and studies by the International Bar Association and Australian Human Rights Commission have shown that lawyers are not immune to or innocent of sexual harassment. Former lawyer and now editor at Women’s Agenda , Georgina Dent, Josh Bornstein, employment lawyer and Principal at Maurice Blackburn, and Kristine Ziwica, head of NOW Australia, the movement started by broadcaster Tracey Spicer as Australia’s answer to #MeToo, will be on the panel hosted by LSJ Online Editor Kate Allman. Join the conversation and book your place at lawsociety.com.au/ events Advancement of women award The Law Society of NSWwill present the inaugural Advancement of Women in the Profession award at the end of the month. The award will recognise signatories who demonstrate excellence in implementing strategies and best practice commitment to sustainable workplace changes relating to the advancement of women in the legal profession. The award winner will be announced at the First 100 Years

Kenneth Hayne AC QC COMMISSIONER AND FORMER JUSTICE OF THE HIGH COURT Too often the answer seems to be greed – the pursuit of short-term profit at the expense of basic standards of honesty. How else is charging continuing advice fees to the dead to be explained?

of Women in Law dinner on 26 November. Learn more at first100years.com.au

From the interim findings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

ISSUE 50 I NOVEMBER 2018 I LSJ 15

Briefs NEWS

sixminuteswith

NICHOLAS STEWART

Your client Alan Rosendale has been fighting for justice since 1989, when he was bashed at a renowned “gay beat” near South Dowling Street in Sydney. What do you hope the parliamentary inquiry will do for Alan and others like him? Alan came to us asking for help five years ago and Dowson Turco took his case pro bono. Initially, our role was talking to witnesses, working out what happened and what the NSW Police Force’s response was. We eventually requested the assistance of the NSW Ombudsman to try to obtain a more satisfactory response from the police. Unfortunately, the Ombudsman could only rubber stamp the police response and that was the end of it. I thought, “It can’t stop here. This is not just about Alan, there are many victims of hate crimes, including deceased people, who need justice.” What do you think of the decision for the inquiry to look at crimes committed between 1970 and 2010. The inquiry focuses on that period because that is when there was an explosion in gay murders and bashings. We were more visible because of the disco scene in the late ‘70s. Homosexuality was decriminalised in NSW in 1984 so the gay scene in Sydney flourished throughout the ‘80s and ‘90s. Unfortunately for us, members of society didn’t like that very much. at gay and transgender hate crimes that occurred between 1970 and 2010. This is only the beginning of what Stewart says will be a long process of reflection, healing and justice for the LGBTI community in NSW. He spoke to MELISSA COADE. PARTNER AT DOWSON TURCO LAWYERS (DTL) Nicholas Stewart is a partner at the “out loud and proud” LGBTI law firm Dowson Turco Lawyers in Sydney. For the past five years he has been advocating for a parliamentary inquiry into historical LGBTI hate crimes committed in NSW, as well as examining the adequacy of police investigations after complaints about such violent crimes were made. In September, an inquiry was established for the NSW Legislative Council Standing Committee on Social Issues to look

How difficult has it been to gain parliamentary support on this issue? The idea was that if I could lobby and campaign for a parliamentary inquiry into LGBTI hate crimes, that would begin the collection of evidence from a third-party, independent investigator. Initially, the challenges were that I was dealing with independents and members of minority parties who don’t have enormous influence in parliament. It was a challenge navigating politics. Then I slowly saw the groundswell and we had this cross-political spectrum, friendly group supporting the cause. What was your response to news that an inquiry into historic LGBTI hate crimes in NSWwould be established? I want mainstream society to see the exclusion and the alienation of the LBGTI community and what we went through in the ‘70s, ‘80s and ‘90s. I don’t want it to be just lost in history, I think we need to put it on the record, put it in Hansard, have it exposed for what it was. And I think as a society we can all benefit from it and grow.

16 LSJ I ISSUE 50 I NOVEMBER 2018

NEWS

BY LINDEN BARNES, SENIOR ETHICS SOLICITOR

Q: I have noticed that the same standards do not seem to apply to an email as they once did to formal letters. How can I elevate the tone of emails I send without sounding too stu y or like I have spent all day drafting them? A: Just what is the right level of formality in correspondence these days? How can we strike the right balance between stu ness and chirpiness as well as appearing cordial without spending the whole day on it? I won’t wade into the “Dear Sirs” debate or the technological issues of emojis – see the May 2018 edition of LSJ

for a discussion. Moreover, our senior ethics solicitor has written eloquently about stern but ethical responses and Rule 34 ( LSJ , June 2018). Instead, let’s look at Rule 4, which says solicitors must be courteous at all times, and Rule 5, which requires solicitors to avoid bringing the profession into disrepute. Getting the formality wrong could breach those rules, yet the desired level is rather subjective. Here’s some general guidelines. ink of the judge: Would you be happy to have what you have written read out and dissected in court for hours? is is actually a very good test

to run past all your correspondence, whether it is a question of formality or the substance of the correspondence. Remember that emails last forever. ink of the recipient: Have you seen examples of their correspondence? ere are de nitely times when mimicry is a good idea. If your intended recipient adopts a certain level of formality, it may be good to do likewise. ink of the risks: is is the heavy- handed part, but a solicitor’s job is to consider risks. If you get it wrong, it could be a disciplinary matter. Now I need some guidance. Should I sign o this article with yours faithfully, tootle pip or what?

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ISSUE 50 I NOVEMBER 2018 I LSJ 17

Briefs NEWS

Jack Lindgren Joined as Senior Associate Jenkins Legal Services, Newcastle

Sally Davies Promoted to Senior Associate Jenkins Legal Services, Newcastle

SamSlack-Smith Promoted to Senior Associate Jenkins Legal Services, Newcastle

Melissa Carmody Joined as Special

Julie Bowker Joined as Special Counsel Carter Newell Lawyers, Sydney

MatthewAlgie Joined as Associate Carter Newell Lawyers, Sydney

Counsel, Capital Markets Baker McKenzie, Sydney

Marlon Shou Promoted to Senior Associate Beatty Legal, Sydney

MatthewVincent Appointed as Partner Kennedy & Cooke Lawyers

Colin Sloan Commenced as Solicitor Director Sloan Law Pty Limited

Diane Elston Promoted to Associate Younes + Espiner Lawyers

James Blake Joined as Partner Chambers Russell Lawyers, Sydney

Richard Phillipps Joined as Special Counsel Chambers Russell Lawyers, Sydney

Raymon Anderson Joined as Special Counsel

Mark Port Joined as Special Counsel Stacks Goudkamp

Con Ktenas Joined as Solicitor Stacks Goudkamp

Chambers Russell Lawyers, Sydney

Terry Sperber Opened his own firm TPS&Co Lawyers

Elizabeth Debono Joined as a Senior Lawyer TPS&Co Lawyers

Frederick Chung Joined as a Solicitor Du & Associates Lawyers

Know someone with a new position? Email us the details and a photograph (at least 1MB) at journal@lawsociety.com.au

18 LSJ I ISSUE 50 I NOVEMBER 2018

NEWS

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WORKPLACE

‘Worrying’ levels of bullying in the profession Almost half of all lawyers have been bullied at work and one in four have been sexually harassed, according to initial results from a survey conducted by the International Bar Association (IBA). e Association’s Legal Policy and Research Unit (LPRU) surveyed 5,000 lawyers from around the world as part of its Bullying and Harassment in the Legal Profession project that began in July. e LRPU released high-level results in October, which found that 43 per cent of lawyers had been bullied, and 25 per cent had been sexually harassed. “ e preliminary survey results indicating a high prevalence of bullying and sexual harassment in our profession is very worrying,” said Sarah Hutchinson, Co-Chair of the IBA Diversity Council and International Managing Director of US Bar exam course provider BARBRI. “As a profession predicated on the highest ethical standards, there is no place in the legal sector for bullying and sexual harassment. Increasingly, lawyers are being asked to advise other sectors how to address such misconduct – we risk hypocrisy if we do not address these issues internally.” e incidence of bullying and harassment was higher for female victims – one in two women lawyers had experienced bullying and one in three had been sexually harassed at work, compared to one in three and one in 15 respectively for men. Meanwhile, perpetrators went unsanctioned – 76 per cent of the time for bullying situations, and 73 per cent of the time in sexual harassment cases. In 62 per cent of cases, the bullying contributed to the victim leaving or intending to leave their workplace. e LPRU report questioned whether anti-bullying and sexual harassment policies and training were working, given the extent of the bad behaviour revealed by the data. “It appears that training has more impact than policies, reducing instances of bullying and harassment by line managers in particular,” the report said. “ e main barriers to reporting sexual harassment appear to remain even after training.” e report also noted that countries like Australia and the UK reported sexual harassment and bullying in greater numbers compared to Russia, Norway and Latvia. It contended this could be for several reasons, including that lawyers in countries where policies and training are more common may be more likely to report bullying or harassment. e survey closed on 28 October and the LPRU will release detailed results soon.

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ISSUE 50 I NOVEMBER 2018 I LSJ 19

Briefs NEWS

THE COURTS New appointments to Family Court A new Chief Justice and Deputy Chief Justice have been appointed to the Family Court of Australia. Chief Justice William Alstergren and his deputy Robert McClelland took up their new positions on 28 September, as Chief Justice John Pascoe AC CVO retired. President of the Law Society of NSW Doug Humphreys congratulated the new appointees and wished Chief Justice Pascoe well for his many years of service to the family law system. “Chief Justice Pascoe has provided distinguished service to the family law system over many years and the Law Society wishes him well in retirement,” Humphreys said. “The Law Society has been active this year in advocating for a single court to deal with family law matters, with appropriate funding and resource commitments. “We will continue to advocate for a robust and specialised family law system, and we look forward to working with the new Chief Justice and Deputy Chief Justice in this regard.” CONFERENCE Rural issues conference Solicitors gathered at Parliament House in Macquarie Street on 26 October for a full-day conference on issues affecting legal practice in rural areas. Hanna Jaireth, who has worked as an academic, lawyer, public servant and parliamentary inquiry secretary in a range of private and public sector positions, many with an environmental focus, spoke on the Farm Debt Mediation Act . Another highlight was an address by Jock Laurie, NSW Land and Water Commissioner at the NSW Department of Industry Land & Water, who explained the background of the regulation of water in NSW and the impact of this process on the community. Gavin Bartier, Director Legal and Dispute Resolution, Land Registry Services, and Sharon Hawke, Area Manager Far West, NSW Department of Industry, discussed Crown land reforms before Deputy Chief Magistrate Michael Allen reported on the latest criminal law updates affecting non-city communties. Dr Caroline Hart, Associate Professor of Law at the University of Southern Queensland, covered the hot topic of succession planning for lawyers in country areas.

MUMBRELLA PUBLISHAWARDS LSJ wins awards

LSJ is proud to announce our magazine was named 2018 Member Magazine of the Year and our Associate Editor, Jane Southward, named Journalist of the Year (small publisher) at the Mumbrella Publish Awards in September. LSJ has won magazine of the year three of the past four years since its relaunch in mid-2014. In this year’s awards, LSJ and Asian Jurist magazine were selected as finalists for cover of the year. LSJ Online Editor Kate Allman was also a finalist as Young Writer of the Year and received a Highly Commended in an impressive field.

CONGRATULATIONS 2018 President’s medal Theodora Ahilas, head of Maurice

Blackburn’s asbestos and dust diseases national practice, has been awarded the 2018 Law Society President’s Medal. Society President Doug Humphreys recognised Ahilas for her more than 25 years of experience in asbestos law in

Australia and New Zealand. Ahilas, who has a Bachelor of Laws with Honours, a Bachelor of Arts and Bachelor of Social Work, received the award at the Law Society’s Annual Members’ Dinner in Sydney on 25 October. “Theodora has exhibited an unstinting commitment to seeking justice for people living with the debilitating consequences of dust disease, most recently as National Head of Asbestos and Occupational Diseases at Maurice Blackburn,” Humphreys said. “Her ability to marry technical excellence with genuine compassion has made a tangible difference in people’s lives. “The empathy, resilience, and emotional intelligence she has brought to her leadership of a challenging area has allowed her clients to find their own strength. Those individuals have always felt that she was available to them.”

20 LSJ I ISSUE 50 I NOVEMBER 2018

NEWS

EQUALITY IN LAW Equality progress ‘stalled’

TECHNOLOGY Breaking down the blockchain Blockchain lives in the cloud and has been touted as a “riskless” form of transaction. For the past three years, regulators, banks and tech companies have raised billions of dollars to explore its possible uses. It is often used with reference to smart contracts and cryptocurrencies. According to the CSIRO, the

A new survey of 68 NSW law firms has found just six have women chief executive o cers. e NSWWomen Lawyers’ Association found no rm had 50 per cent female partners, with the average sitting at 24 per cent. Of partners, 33 per cent of female partners worked part time compared with just 3 per cent of male partners. e survey found men were not using parental leave “to any great extent” despite rms o ering paid leave and formal part-time work arrangements. You can read a full report at womenlawyersnsw.org.au

e panel, moderated by LSJ Senior Journalist Melissa Coade, considered regulatory and risk management issues for the blockchain, its decentralised application, as well as the impact of nancial crime and nancial investigation on the blockchain. Legaler Co-Founder Stevie Ghiassi, Piper Alderman partner Michael Bacina, ASIC Innovation Hub senior advisor Jonathan Hatch, Director of Clayton Utz’s Forensic & Technology Services group Meg McKechnie, Software Developer of Blockchain Australia Lucas Cullen, and Research Fellow Dr Anton Didenko from UNSW Law were panellists.

blockchain could encourage new economic activity in areas such as nancial services regulatory technology, supply chains and government registries, but running a blockchain network is also costly and consumes a lot of electricity. So what is the potential of this software that stores and transfers data across the internet and how is it relevant to lawyers? An expert panel convened by the Law Society tackled these questions and more as part of the third event in the FLIP Inquiry Series: Behind the Buzzwords on 24 October.

The Supreme Court of New South Wales Commercial and Corporate Law Conference 2018 Directors’ Duties, Corporate Culture and Corporate Governance Tuesday 20 November 2018 Banco Court, Law Courts Building 184 Phillip Street SYDNEY CPD Units: 4 Tickets: $265 (inc GST) per person Register now sclc.lawsociety.com.au

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Dr R P Austin Barrister

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ISSUE 50 I NOVEMBER 2018 I LSJ 21

Briefs NEWS

GIVING BACK Pro bono hours are falling The number of lawyers undertaking pro bono work increased in the 2017-2018 financial year, but the total number of hours those lawyers spent on pro bono matters fell from the previous year, according to data released in October by the Australian Pro Bono Centre (APBC). The centre’s 11th Annual Performance Report on the Australian Pro Bono Target noted that 18 out of 37 large firms had reported a result that was down on their previous year’s total, while 17 firms reported an increase. Overall, 12,051 Australian lawyers provided a total 414,843 hours of pro bono legal services in the 2017-2018 financial year. This was 1.3 per cent fewer hours than the 420,195 reported in the 2016-2017 financial year. “Looking at the results from the last few years, we seem to have reached a plateau,” said APBC CEO John Corker. “Increasing competition in the legal services market may be exerting a downward trend on available resources, but pro bono performance is about commitment. And hours are just part of the story. The process efficiencies involved, and the client outcomes achieved continue to be impressive.” The Australian Pro Bono Target was devised and announced in consultation with Australia’s largest law firms in 2007. Target signatories agreed to work towards a target of 35 hours of pro bono work per lawyer per year. Results over the past 11 years have been on an upward trend, but this year’s report marks the first downturn. Twenty-one of the 37 participating firms reported falling short of the target, compared to 20 of 39 last year. Corker urged firms that were consistently falling short of the target to review their programs against the centre’s Best Practice Guide, and to work with the centre to achieve improvements. “Today, more than ever, it is vital that lawyers take a leading role in standing up for the rule of law, challenging injustice and helping the most disadvantaged individuals through pro bono legal service,” he said.

For the full round-up of Law Society advocacy, see page 68.

Calls for sound framework for Aged Care Rights Charter

The Elder Law, Capacity and Succession Committee has joined the Law Council of Australia to push for a framework which addresses the special needs of older people. In a submission on the Draft Charter of Aged Care Rights Consultation Paper, both groups identified the vulnerability and disadvantage faced by consumers of the charter. The submission advocated for the charter framework to be designed in such a way that it could cater to all consumers, who may not be equally able to understand and exercise their rights. recommendations on how to hold illegal phoenix operators to account. According to the committee, some of measures proposed under the government’s reforms were unnecessarily complex and confusing. The submission suggested the creation of an adverse costs order protection for liquidators, who were seeking to attack suspected phoenix behaviour in good faith. This measure would prevent those involved in illegal phoenix conduct being able to exploit “grey areas”, the committee noted. The group also recommended shifting the onus of proof once certain criteria was met. The Law Society has flagged concerns about a police flyer aimed at domestic violence defendants in the Aboriginal community, particularly what the flyer implies about the presumption of innocence and the legality of compliance checks for Apprehended Domestic Violence Orders. Questions have been put to the Police Commissioner about the policy objectives of the initiative, as well as any legislative or common law power that permits the police to undertake ADVO compliance checks. Police ADVOflyer raises compliance check concerns Catching a phoenix operator The Business Law Committee has made a submission to Treasury, with

PROFESSIONALNOTICE As stated in the February 2018 issue of LSJ , on 18 January 2018 pursuant to section 77 of the Legal Profession Uniform Law (NSW) the Council of the Society (Council) resolved to immediately suspend the practising certificate of Zali Burrows and appoint Richard Stephen Savage, solicitor, as Manager of the law practice known as Zali Burrows, (together, the resolutions). By order of the Supreme Court of NSW dated 30 January 2018, the resolutions were stayed. On 31 January 2018, the Council resolved to lift the suspension of Ms Burrows’ practising certificate and terminate the appointment of Mr Savage as Manager of the law practice known as Zali Burrows.

22 LSJ I ISSUE 50 I NOVEMBER 2018

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