LSJ OCTOBER 2020
A true reign of terror Those touched by the Family Court bomber horror speak out Decisionsmade easy As artificial intelligence improves is it time to start trusting the data? Keeping pacewith tech Has the time come for a new tort of cyber harm for privacy breaches? Bordering on conflict The true significance of Clive Palmer’s constitutional challenge
ISSUE 71 OCTOBER 2020
With the impacts of COVID-19 ongoing, we check in on the mental health of the legal profession The longhaul
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26 Hot topic Sydney law firm launches class
36 Embracing AI Kirrily Schwarz delves into the
50 A lesser known sport Talented athlete Amanda Fung tells Kirrily Schwarz about the sport Ultimate Frisbee and why we should take it seriously 54 Fitness Personal trainer Zara Michales reveals the many benefits to incorporating powerlifting into your training 56 Travel Head to the Margaret River to indulge in Australia’s finest wines alongside a stunning backdrop, writes Ute Junker
action to recover economic losses for small business in Victoria
world of artificial intelligence and its impact on the legal sector
28 Lunchwith Geo Gallop reflects on his time in politics and the importance of mental health with Amy Dale 30 Mental health As the pandemic continues, Angela Tufvesson and Amy Dale check in on the legal profession
40 Family Court bombings With Leonard John Warwick
sentenced to life behind bars, Amy Dale explores the chilling case
46 Mindset Angela Heise emphasises the
importance of staying positive in the face of uncertainty
This special edition of LSJ , recognising Mental Health month, discusses a range of issues that may cause you concern. Counselling Support Services If you would like to speak with someone for support: The Solicitor Outreach Service (SOS) – 1800 592 296 An independent and confidential psychological counselling service for NSW solicitors. Visit lawsociety.com.au/sos to learn more
Lifeline – 13 11 14 24-hour crisis support and suicide prevention services
Beyond Blue – 1300 224 636 Mental health information, support and counselling
If your or someone else’s life is in danger, phone 000 immediately
ISSUE 71 I OCTOBER 2020 I LSJ 3
Legal updates Artwork: © Luke Penrith
6 From the editor 8 President’s message 10 Mailbag 14 News
The latest developments in advocacy and law reform
Tips to aid compliance with WH&S obligations while working remotely
86 Compliance risks FAQs in the age of the Coronavirus 87 Cyber security
Making the case for a new tort of cyber harm 72 Constitutional law Challenging coronavirus border closures 75 Superannuation NSWSC consideration of
23 Expert witless 23 The LSJ quiz 44 Career matters 46 Mindset 49 Career coach 52 Health 60 Youwish 62 Books and lifestyle 64 The case that changedme
Reduce cyber risk by making people the first line of defence
88 Indigenous issues
death benefit nominations and persons lacking capacity
Legal Aid’s expert guide to best practice standards in representing Aboriginal clients
90 Commercial law
The end of dual regulation for migration law practice
The impact of COVID-19 on commercial leasing disputes
80 Intellectual property
92 Case notes
FCA uses preliminary discovery mechanism to identity suspected copyright infringers
The latest High Court, family, criminal, and elder law and succession judgments
81 Library additions 106 Avid for scandal
High Court clarifies the meaning of ‘a day’ for personal leave purposes
Artwork above: © Luke Penrith (from the cover of Legal Aid NSW’s Best Practice Standards For Representing Aboriginal Clients)
4 LSJ I ISSUE 71 I OCTOBER 2020
A new podcast from the teambehind the award-winning LSJ magazine.
No bias, no politics, no nonsense. Just great chat with those making and shaping the future of your profession.
EPISODES NOW AVAILABLE
Michael Cou s-Tro er Secretary of the New South Wales Department of Communities and Justice
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Listen to the first three episodes at lsj.com.au/podcasts or in your preferred podcast app
A word from the editor
October is mental health month in NSW. An initiative started in 2010 by the Mental Health Association of NSW, mental health month is a handy way for us all to stop and reflect on our own mental health, as well as that of those around us. e current COVID-19 situation is presenting even more challenges than usual to people’s mental
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor
Jacquie Mancy Online Editor
health. In my experience, more people are experiencing periods of stress, anxiety, isolation and depression. Some days you’re up, some days you’re down. Other days you’re really, really down. If there is a silver lining to this observation, it’s that people seem far more willing to acknowledge the struggle. It’s as if COVID-19 has finally given us a valid and socially acceptable reason to admit that we’re not doing so well; to respond, when asked how we are, “You know what? I am struggling today.” e pandemic has opened the communication lines and, in its own strange way, chipped away at the stigma surrounding mental health. Let’s hope that, once this crisis has passed, this small silver lining remains. As the great Ruth Bader Ginsberg once said, “Real change, enduring change, happens one step at a time.” Claire Chaffey
Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290
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© 2020 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 specific written permission of the Law Society of New South Wales. Opinions are not the official 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.
Rachael Falk Opinion p70
Dr David Tomkins Constitutional law p72
Angela Tufvesson Cover story p30 Angela is a freelance journalist, editor and content creator specialising in health, sustainability and lifestyle. In this edition, she examines how the profession’s mental health is holding up under the strain of COVID-19.
Amy Dale Family Court p40
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Dr David Tomkins is a lecturer at the
Amy is a journalist at LSJ . She has previously worked in government social policy and media relations, as a court reporter and is a published true crime author. This month, she explores the lasting impact of the Family Court bombings.
Rachael Falk is a former lawyer-turned-cyber expert and now CEO of the Cyber Security Cooperative Research Centre. Here, she makes the case for a new tort of cyber harm dealing specifically with digital privacy breaches.
University of Newcastle Law School, where he teaches and researches in Constitutional law. Here, he analyses Clive Palmer’s High Court challenge to Western Australia’s COVID-19 border closures.
Atruereignofterror Those touchedby theFamily Courtbomberhorror speakout Decisionsmadeeasy Asartificial intelligence improves is it time to start trusting thedata? Keepingpacewithtech Has the timecome foranew tortof cyberharm forprivacybreaches? Borderingonconflict The true significanceofClive Palmer’sconstitutionalchallenge
With the impactsofCOVID-19ongoing, wecheck inonthementalhealthofthe legalprofession The longhaul
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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6 LSJ I ISSUE 71 I OCTOBER 2020
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ISSUE 71 I OCTOBER 2020 I LSJ 7
A s many would be aware, Oc- tober is the month in which members and friends of the Law Society gather for our Annual Members Dinner, a tradition that has sustained us through good times and bad. In the midst of one of the most challenging periods in the history of the profession, the Society and indeed the entire nation, it’s never been more important that we find a way to come together to acknowledge the positive advances we have made and to celebrate and affirm those relationships that have sustained us throughout the year and which unite us as a profession. However, in this COVID-19 limbo that we find ourselves in, and with the health and wellbeing of our members and their guests in mind, we have had
to re-envision this year’s event as a virtual gathering. While we cannot be together in person, it’s my hope that members will join me online for the Annual Members Address at 3.30pm on Monday 26 October 2020. As well as celebrating the strength and collegiality of our profession, we will also honour the achievements of solicitors who have practised law for 50 years, and an- nounce the 2020 President’s Medal recipient, recognising their significant personal and professional contributions to the betterment of law and justice in the community. In October, we also celebrate Mental Health Month, in conjunction with World Mental Health Day on 10 October. I am pleased to see this month’s issue features a number of articles on mental health and wellbeing, including an item on former WA Premier and prominent mental health advocate Emeritus Professor Geoffrey Gallop AC. Professor Gallop will be delivering the Law Society’s annual Charles Richard Xuereb Oration on mental health and wellbeing in the law on Monday 12 Octo- ber. e annual oration commemorates the life and work of the late Charles Richard Xuereb – a gifted solicitor and an eloquent advocate for the wellbeing of the legal profession. Having fought his own battle with depression, Professor Gallop has used his public profile to raise awareness of depression and other mental illnesses and I am delighted that he has accepted our invitation to speak on this important topic. Members can register for both the Oration and Annual Members Address via the events page on the Law Society website: lawsociety.com.au/events
Richard Harvey , President, Law Society of NSW
8 LSJ I ISSUE 71 I OCTOBER 2020
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ISSUE 71 I OCTOBER 2020 I LSJ 9
Mailbag LETTERS TO THE EDITOR
Policingthepandemic Which stateshavebest responded toCOVID-19–andatwhatcost? Roughseasahead HowAustralia’s lawfirmsare coping in the faceof recession Securingyourcyber How toprotect yourselvesand yourclients ina remoteworld Unconsciouslybiased What lawfirmscando toaddress the underlying inequities inourprofession
ISSUE70 SEPTEMBER 2020
A plea to lawyers Having graduated in law half a century ago, I am
fessor Spencer Zifcak; Georey Robertson QC; high-profile former NSW Director of Public Prosecutions Nick Cowdery QC; former Victorian Court of Appeal judge Stephen Charles QC; Greg Barns; and Richard Ackland. One article about Collaery’s case for a general audience is in The Guardian – just google “Collaery Cun- liffe and Guardian”. We live in troubling times. I fear that, increasingly, we are going to have to put into practice those fine principles we hear of at graduation and admission cer- emonies and don the armour of moral courage with real intent. I have written to the Law Coun- cil of Australia quoting Robert French in Hogan v Hinch  HCA 4 at : “An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subject- ing court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution, courts capable of exercising the judicial power of the Com- monwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard.” I added that the Federal Government is pressuring courts to depart from the open-court principle, often quite radically, and inhibiting the discretion of the judiciary to decide issues of secrecy on their proper merits. I implore you, as a fellow member of a great profession, to write a short email or letter expressing your concern. Suggested addressees are the Law Council, your law society or bar association, and your federal MHR and Senators. Ian Cunli e Snap that? Now that His Honour [Chief Justice Bathurst] has embraced the digital sphere, hopefully
he will now also consider extending this by permitting, finally, restricted photography in admission ceremonies once resumed? Edward Loong
defensive of lawyers. I am a bit critical of them too. My heart swells when I hear eminent judges and other leaders of our profession at graduation and admission ceremonies, extolling the fine and enduring principles of lawyers standing up against oppression and demonstrating moral courage in the face of bullying, intimida- tion and injustice. When I hear criticism of the legal profession, I ask the critic: “Who goes into the butchers and asks for a free porterhouse steak, or the service station for a free tank of petrol, or the surgeon for a free hip replacement?” It’s an everyday event for many lawyers to help battlers free of charge. We have much to be proud of. About six weeks ago, I began to take a close interest in the secretive crim- inal proceedings in Canberra against Witness J, Witness K and Canberra lawyer Bernard Collaery. I began to write about them. That has attracted some interest from others who had picked up on the issues more quickly than me – secret trials, oppressive laws, apparently vindictive prosecutions, Goli- ath (the Federal Government) launching attacks on David to cover up its own crimes, and more to make my blood boil. One of those others is a man in Darwin – a non-lawyer – who contacted me, and has helped me greatly with ideas, proof reading, editing and more. But my new friend keeps asking me, “Why aren’t the lawyers speaking out?” I am embar- rassed that my answers seem a bit inadequate. Mind you, some of the leaders of our profession have spoken out: the President of the Law Council of Australia, Pauline Wright; former NSW Court of Appeal judge and ICAC Commissioner Anthony Whealy QC; Nick Xenophon and Mark Davis of Xenophon Davis; Pro-
Should you really publish that?
Bya thread Whyour lawsneedtobetterrespondtothe threatofemotionalandpsychologicalcontrol
Recent months’ issues of the Law Society Journal have featured exchanges of corre- spondence on climate change. While these might demonstrate a diversity of opinion as wel- comed by the editor, I beg to disagree that they should be published. I hope LSJ will not fall into the fallacy that simply because there is “divided opinion”, both “sides” deserve equal prominence. A news producer remarked to me once that 50 per cent truth and 50 per cent lies is not balance. Taken to its logical conclusion, the LSJ would be equally justified in publishing letters express- ing opinions supporting anti-vaxxing, the flat Earth, that man didn’t land on the moon, that COVID was caused so Bill Gates can insert chips via 5G into our brains, or the patent inferiority of women. People may hold these opinions, but should LSJ give them the time of day? Climate change deni- alists necessarily operate on the basis that the vast majority of scientists are 100 per cent wrong, because if there is even a 10 per cent possibility they are right, then action is justified to mitigate the risk. We take medical advice and buy insurance against risks far less likely than the prospect that 97 per cent of scientists are wrong or conspiring to produce false- hoods. There may, and should be, dierent opinions on how to address the problem but do not entertain a dispute on the existence of the problem. Michael Berg A plea to the Scots I read carefully the letter of Peter Breen, but do not understand
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27/8/20 12:17 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.
Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Ian Cunli e has won lunch for four at the Law Society Dining Room. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 71 I OCTOBER 2020
LETTERS TO THE EDITOR
howhe can state there is no uncertainty re. global warming, but at the same time cite US surveys that show a large percentage of people do not know there is certainty and may indeed hold the opposite view, as by his own admission do many mem- bers of the US administration. I also do not understand why reduction of tropical forest and extinction of species can be said to be caused by burning of fossil fuels. Whilst these are to be deplored, as are air and sea pollution, the cessation of use of fossil fuels would not correct the situation. Indeed, it would almost surely lead to an increase in the use of wood as a fuel, accelerating the reduction of forests, thereby causing more extinc- tions of species. All of these problems require carefully planned and complex solutions, not a simple and ill-consid- ered ban of one human activity, the use of fossil fuels. As to Mr Breen’s cavalier dismissal of contrary views, I would with due respect cite two comments: Oliver Cromwell’s plea to the Scots that they should consider they might be wrong, and Lord Bertrand Russell’s comment that the whole problem with the world is that fools and fanatics are always so certain of Behind cabenet’s mild mannered, easy user interface, lies all the powerful features any law firm needs to deliver superior legal services and profitable business performance, from anywhere. End to end matter management, certified law office accounting, professional billing and invoicing, and seamless Microsoft Office integration gives control over everything matter related - matter files and financials, emails, messaging, calendars and document management, and much more. Simple to use remote working capability and business continuity peace of mind for any sized firm. Just signup online and start using immediately, no complex installation and no minimum contract period.
themselves, but wiser people are so full of doubts. I hastily disclaim any intention to suggest Mr Breen is either a fool or a fanatic, but strongly urge him to take Cromwell’s advice – as I will gladly do if persuaded I am wrong in my remarks. Brian Bullock Superfluous adjectives Thank you for the update in the latest LSJ for September 2020 about the appoint- ment of two solicitors as Registrars of the Family Court and Federal Circuit Court of Australia. However, I’m puzzled by the need to include the description that the appointment was “Two women registrars” in the title to the article. Seems superfluous given the Registrars’ names are Lynda and Sandra and pictures were also supplied ... Unless, of course, a review of the last few appointments aptly describe a gender? Samantha Lewis Consulting on coercive control We commend the current attention on coercive controlling violence (CCV) (Amy Dale, ‘Criminalising Coercion’, Sept LSJ ). The Greens and Labor Bills to criminalise CCV are facilitating a desperately needed
conversation. The Government’s inten- tion to hold a public consultation is what we need. It is vital that the community, first responders, and our legal systems, including all the professionals working within them, get better at recognising, understanding and responding to CCV. Women’s and children’s lives depend on it. We want to better understand how police and courts respond to existing laws including stalking and intimidation oences; the current blocks to police focusing more on context than on discrete incidents in isolation; and the Scottish experience. There are diering views on criminalising CCV. Some, such as Women’s Legal Service NSW, are con- tinuing to work through the complexities. We desperately need a criminal justice system which properly recognises and responds to gendered violence, including CCV, and holds perpetrators accountable. A thorough consultation on how to best respond to CCV is an essential step in this journey. Read our full statement at: wlsnsw.org.au/criminalising-coer- cive-control/. Liz Snell, Women’s Legal Service NSW
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ISSUE 71 I OCTOBER 2020 I LSJ 11
“Proud to have an Indigenous woman steering our honourable profession.” Andrew White, LinkedIn “Congratulations Sonja. Looking forward to working with you in the continuing important work of the Society.” Ron Heinrich AM, LinkedIn “Wonderful choice! Perfect credentials to take the Society forward in the 21st Century.” Philip Argy, LinkedIn “Congrats, for both, the professional, and the institution!” Juliano Gusmao, LinkedIn “Fantastic news. The future is bright!” Renzie Duncan, Facebook “Ngalaya is very excited that Yuin woman and @UNSWLaw alumnus Sonja Stewart has started in her role as CEO of @LawSoci- etyNSW this week. We look forward to working with Sonja to support the 400+ First Nations solicitors in NSW.” Ngalaya First Nations Lawyers and Law Students NSW/ACT, Twitter
“Women lawyers in NSW are thrilled to welcome Sonja Stewart as CEO of the Law Society of NSW and we look forward to working together for a more diverse, inclusive and respectful profession.” WLANSW, Twitter “Legal history made this wk. Yuin trailblazer @sonja_stewart70 started as CEO of Law Society of NSW. Sonja is an Indigenous graduate @UNSWLaw – back in those days who would of thought! Imagine the futures of the students today. Terri Janke, Twitter
SAVE THE DATE On 7 October , Scheme Coordinators can apply for participation in, or exemption from, the 2020–21 Scheme. In these COVID-19 on-site sta ng restricted times, please make your application online at lawsociety.com.au/scheme . We’re here to help so please call us on 02 9926 0189.
“My personal favourite is Falkenberg v Nationwide News : ‘Daily Telegraph Mirror’ publishes Gary Larson cartoon, ‘Grati in Hell’ with a 555 telephone number on the wall. Nonsense number in the US but home phone of a Leichhardt couple (and the Longford gas plant in Victoria).” David Rolph, Twitter “Always hard to go past Liberace winning £8,000 damages against the Daily Mirror in 1959 for insinuating he was gay (they called him “fruit-flavoured”). Although Eddie Obeid’s defo win against Fairfax comes close.” Marque Lawyers, Twitter “The Coco Roco litigation was wild.” Nicholas Stewart, Twitter
“When Lindsay Lohan sued Pitbull for his lyric, “I got it locked up like Lindsay Lohan”. Borcsa Vass, Twitter “There was one (I forget the name!) which considered the question of whether referring to your ex-son-in-law as ‘Dennis Denuto’ carries defamatory imputations.” Elizabeth Clark, Twitter “Benhayon v Rockett - a walkover - in my biased opinion. Also Ziggy - the mullet case which I think settled eventually.” Esther Rockett, Twitter “No comment.” The Chaser, Twitter
12 LSJ I ISSUE 71 I OCTOBER 2020
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“Great piece, thanks the Law Society of NSW! I don’t think legal should ever take over in a crisis. I like the elements of this article that emphasise the need for the organisation to speak authentically to its values, and then have the lawyers manage
“Thanks the Law Society of NSW – some interesting find- ings from this research. It was great to hear about ways that lawyers and communicators can work better together such as respecting each other’s role.” CITEC Confirm, LinkedIn “Legal always required for final review of strategy and all key messages before implementa- tion and broadcast.” Kris Ty, Facebook
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“This is such an important issue. Many of my clients, when providing their history, tell me their partner hasn’t been physically abusive, ‘just’ emotional or psychological. They themselves believe, or are made to be believe, that’s not significant. It’s time the impact of non-physical forms of abuse and escalating patterns of behaviour are addressed.” Laura Donnelly, LinkedIn
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ISSUE 71 I OCTOBER 2020 I LSJ 13
INDIGENOUS ISSUES Pro bono support needed to keep Indigenous kids safe at home
BY AMY DALE
A new campaign is underway to recruit more lawyers into pro bono work in a Federal Circuit Court list that aims to keep Indigenous children out of the care system. e Court’s Indigenous List strives to protect Indigenous children and keep them connected to family and culture. It encourages relatives of a child, whom they suspect may be at risk, to make an application for parenting orders. As a Federal Court, private applications are brought by individuals. is differs from the state-based Children’s Courts, where applications are initiated by child welfare authorities. As part of the Indigenous List, the par- ents and proposed carers of the children are supported by Indigenous community services in relation to drug and alcohol, mental health or family violence issues. Senior lawyers say the list is mending relationships between members of the Indigenous community and the justice system, as well as helping to keep Indige- nous children from entering care. To date, there has been a zero drop-out rate among Indigenous families who have taken part in the list, which began in late 2016. ose responsible for establishing the program hope more lawyers will consid- er volunteering their time and expertise. e pro bono work supports Indigenous clients who do not qualify for Legal Aid
or the Aboriginal Legal Service but can- not afford private representation. In the new “Our Kids” video cam- paign (pictured), directed by award-win- ning Indigenous filmmaker and lawyer Larissa Behrendt, an aunt makes an ap- plication to look after her nephew while her sister seeks help for issues relating to domestic violence. It emphasises there is a legal pathway that can keep Indigenous children connected to family and culture. Skye Owen previously worked as an associate for Judge Robyn Sexton, who started the list in the Sydney registry. She is now “on the other side of the bar table” doing some pro bono work with Indigenous clients. “It is work that I feel very passionate about and I can see the benefit of the work that is being done,” Owen, a senior associ- ate at Lander & Rogers Lawyers, told LSJ . “It really provides an alternative to the Children’s Court, where a lot of these chil- dren would have ended up.” Indigenous children are over-repre- sented in child protection and out-of- home care services compared to non-In- digenous children. In NSW, Indigenous children are 10.5 times more likely to enter the care system. Owen has worked closely with Rick Welsh, a former member of the Law So- ciety’s Indigenous Issues Committee who described the Indigenous List to LSJ as
“therapeutic jurisprudence.” “ ere had historically been real re- sistance and lack of trust in the justice system by the Aboriginal community and that is completely understandable,” Owen said. “It takes time to build up the trust … but I think through this initiative we have shown what family law can offer to keep families together. “We so often see [in the list] some of the most powerful women in their com- munities, who are so child focused and so determined on what is the right thing to do for the kids. “Within the community, they may be very desperate for someone to guide them through the court process and that is what I feel very fortunate to be able to do. It is about looking after the kids and working with family to prevent these cases from ending up in the child welfare system, where the outcomes may be very poor.” Owen hopes more lawyers will consid- er doing pro bono work for the list. “As lawyers, we have an obligation to help people through the system and to ensure we are allowing all people equal access to justice,” she said. For more information on pro bono work, visit: https://greatersydney. pn. com.au/resources/our-kids
14 LSJ I ISSUE 71 I OCTOBER 2020
NEWTHISMONTH New resource for elder abuse e Law Society of NSW has published guidance to help practitioners identify and deal with elder abuse. e guide was drafted by a working party that included Kathryn McKenzie (Director Operations, NSW Ageing and Disability Commission) as well as members of the Law Society’s Elder Law, Succession and Capacity Committee and Ethics Committee. Download it at lawsociety.com. au/resources/practice-resources/ my-practice-area/elder-law ALRC looks at judicial impartiality Federal Attorney-General Christian Porter has asked the Australian Law Reform Commission to undertake a review of laws relating to impartial- ity and bias among the federal judi- ciary. e ALRC will consult widely with the legal profession, courts and tribunals. For more information and to make a submission visit alrc.gov.au e Law Society of NSW will host Rural Issues Day on 23 October via a series of online panels and presentations. e program features leading speakers from across the profession, including Commissioner John McKenzie from the Office of the Legal Services Commissioner, Registrar Brett McGrath from the Family Court and Federal Circuit Court of Australia, and Kirsty Ruddock, the Director of Regulatory Investigations and Compliance at the Natural Resources Access Regulator. lawsociety.com.au/ rural-issues-day Register for Rural Issues Day
Justice Peter Garling NSW Supreme Court judge in the trial of Family Court bomber Leonard Warwick
I recognise that I must change by listening rather than talking.
ISSUE 71 I OCTOBER 2020 I LSJ 15
sixminuteswith RAWAN ARRAF
How have you managed the challenges of COVID-19? It’s slowed down our ability to conduct some of our cases. With clients who we represent abroad we’ve really had to man- age their expectations and tell them it’s going to take a little longer to complete their criminal complaints. In another way, though, I feel like we’re busier than ever. Do you have any plans for the future? It’s a huge challenge what we’re trying to do – to get Australia to undertake international crimes, investigations and prose- cutions. Australia is still miles away from where jurisdictions in Europe are. At the moment, Germany has an ongoing trial of two individuals involved in Syria’s state sponsored torture apparatus, on the basis of universal jurisdiction – the idea that regardless of the nationality of the perpetrator, victim or where the crime took place, states have an obligation to prosecute the most egregious crimes of concern to the international com- munity. Australia doesn’t have this practice, and it’s going to take a lot of work to change that. at’s why, in addition to litigation, we have a broad policy advocacy agenda. My first piece of advice is to always follow what you’re passion- ate about. Talk to people in the field and gain a language if you can, especially if you want to work abroad. Getting an LLM is a plus – I’m in the process of getting mine at the moment. If you can find a gap in legal services, then definitely find a way to fill it. Additionally, seek out a mentor and build a network of supporters who will keep pushing you and providing advice along the way. Justice. She has 10 years of experience in refugee protection, administrative law and international human rights law. Arraf set up the centre to develop Australia’s domestic investigations and prosecutions of international crimes. Do you have any advice for lawyers seeking to pursue a similar path? Rawan Arraf is Principal Lawyer and Director of the Australian Centre for International
What inspired you to establish the Australian Centre for International Justice? I’m passionate about supporting victims of international crimes and finding avenues to disrupt the pattern of impuni- ty enjoyed by perpetrators. For a long time, I wondered why there was no centre doing this kind of work here domestically, particularly because we have such an established legal profes- sion. Moreover, Australian international criminal lawyers and academics are well regarded abroad. ere was a clear gap in the legal services, prompting me to create this centre to work directly on these issues and push Australian authorities to im- prove access to justice for victims of international crimes. What cases have inspired you? Previously, I worked as a lawyer at the Refugee Advice and Casework Service (RACS). is gave me a chance to work di- rectly with victims of international crimes. Many of my clients had escaped violence from horrific armed conflicts that are still happening today. While my role was to help these clients gain protection in Australia, hearing their stories of what had happened prior was one of my inspirations to open the centre. What has been a career highlight? I still feel so young in my career, but opening the centre would have to be a highlight. It has been a huge undertaking and a real sacrifice. To be honest, the first two years has involved a lot of admin and bureaucracy, but it’s ultimately been worth it. It will be interesting to look back in 10 or 20 years and see what we’ve achieved, if we are still around.
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LAWREFORM Defamation change in limbo: NSWmay go it alone
Attorney-General Mark Speakman has committed to pushing forward with amendments to defamation law in NSW, despite other jurisdictions so far dragging their feet on the changes. e Model Defamation Amendment Provisions 2020 passed state Parliament in August following a two-year review into the laws. e changes have not yet been proclaimed into law, as NSW waits on other states to pass the same model bill in their own parliaments. Implementing the changes in NSW alone risks upending Australia’s uniform model of defamation law that has existed across the country since 2006. “ e Council of Attorneys-General has agreed that the jurisdictions will start [the amendment process] as soon as possi- ble. To avoid forum shopping, ideally we would all start at once,” Speakman told
author of two textbooks on defamation David Rolph told LSJ uniformity was a “hard-won goal” that should continue to the extent possible. “ e whole point of uniform legisla- tion is that Australian defamation law has been uniform – right through since the first of January 2006. Before that, we had substantively different defamation laws. It meant the same publication disseminated across different jurisdictions could lead to different outcomes. We need uniformity.” A second round of reforms looking at the liability of owners of social media pag- es for comments, among other issues, will be conducted over the next two years. e Attorney-General said a discussion paper would be released at the end of 2020. Turn to page 24 for photos from the Thought Leadership event: Defamation reform – in pursuit of balance.
viewers of an online defamation panel discussion hosted by the Law Society of NSW as part of its ought Leadership event series in August. “A number of jurisdictions said they have busy legislative programs and they don’t know when they can fit this in. I have difficulty understanding that be- cause … all they need to do is copy and paste [the amendments] into their bills.” University of Sydney law professor and
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CRIME Crime is down but gendered violence has surged
Elizabeth Bedford Joined as Partner Pearson Emerson Meyer
Amber Sharp Joined as Partner in Employment Relations and Safety McCullough Robertson Lawyers Sydney
Heidi Menkes Promoted to Partner Pearson Emerson Meyer
SamHarmer Promoted to Associate Bartier Perry Pty Ltd
Crime across NSW has remained stable or fallen in the past two years, accord- ing to fresh data released by the NSW Bureau of Crime Statistics and Research (BOCSAR) in September. e NSW Recorded Crime Statistics quarterly update June 2020 showed pleas- ing trends in falling rates of robbery, theft and damage to property, but noted a dis- turbing rise in sexual assault and domes- tic assault. Incidents of sexual assault had sky- rocketed by as much as 59 per cent in the Sutherland area, and the report flagged a “significant upward trend in the Great- er Sydney Statistical Area” of domestic assault. Regional areas including the Ill- awarra, Southern Highlands and Shoal- haven experienced the sharpest rise – by as much as 64 per cent – of this type of assault. e worrying rise of domestic vio- lence amid COVID-19 lockdowns has previously been reported on by LSJ . A survey of 15,000 Australian women by the Australian Institute of Criminology, published in July, found one in 10 experi- enced domestic violence during the pan- demic. Of those women reporting physi- cal or sexual violence, two-thirds reported experiencing violence for the first time or an escalation in violence. e BOCSAR report noted that crime reporting patterns had been significantly interrupted since April due to the pan- demic response. While overall crime rates appeared lower, reporting numbers were also considerably lower than the same pe- riod in 2019.
Elaine Alexandrea Clarke Appointed as Senior Associate Newnhams Solicitors
MaryannMelhem Appointed as Associate Newnhams Solicitors
Emily Ostler Appointed to Associate The Law Oce of Conrad Curry
Samantha Curroof Promoted to Special Counsel McAuley Hawach Lawyers
MahwishMalik Joined as Special Counsel (Private client services) Bartier Perry
Damien R. Clarke Joined as Senior Associate McCullough Robertson
Ana Jaksic Promoted to Associate Blanchfield Nicholls
Andrew Ferguson Joined as Special Counsel Sparke Helmore
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BY PAUL MONAGHAN, SENIOR ETHICS LAWYER
Beating the blues by ethics
Every day, lawyers focus with intensity upon the legal issues of which they have carriage. e picture of lawyers dili- gently working through every nuance of the law, problem solving and carry- ing the load that otherwise would be imposed upon their client is a common depiction of the modern law firm. At night, many lawyers toss and turn, restless and stressed, often replay- ing their case and the ethical issues that have arisen. Over time and relentless pressure, this bleak picture gets worse and develops into the spiral of depres- sion, alcoholism, substance abuse and, regrettably, sometimes self-harm. is portrait of horror is often referred to in the most chilling of all descriptions:
“just another day in the office”. All is not lost. It does not have to be like this. ere are reasons for having conduct rules, as they pro- vide both solutions and protection for the lawyer in practice. Difficult eth- ical circumstance can push even the most hardened stalwart of the legal profession to breaking point. How to deal with and solve these problems is the purpose of developing rules that govern a lawyer’s conduct under such adverse circumstance “… conduct rules are … to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules …”. (Rule 2)
e Law Society provides ongoing assistance to every lawyer through the Professional Support Unit, in particu- lar with an emphasis on key topics of ethics, costs and regulatory compli- ance. When you have a problem that just won’t go away, please call us to discuss it and work through a solution. Additional counselling and help to all lawyers suffering distress is available through the excellent Solicitor Out- reach Service by calling 1800 592 296. e modern lawyer shares common characteristics with the ancient warrior: “When knocked down seven times … you must get up eight times.” e Law Society is always available to help you get back on your feet each time.
BROUGHT TO YOU BY THE LAW SOCIETY OF NSW COSTS COMMITTEE
Q: I gave my clients a discount and they’re still gettingmy costs assessed. Can I reverse the discount?
A: Ordinarily, absent express writ- ten agreement to the contrary (for example, in a costs agreement), practi- tioners do not have an automatic right to withdraw an existing bill of costs and substitute new bills of costs for the purpose of assessment. e legal position is complex (a useful overview may be found in Gorczynski v Beilby  NSWSC 884, at paragraph 52 and onwards), but the starting point is
that a solicitor has no automatic right to reverse, on assessment, a discount previously given. ere are also specific provisions of the legislation which must be con- sidered. For instance, if a lump sum bill is replaced by an itemised bill for a higher amount, rule 74 of the Legal Professional Uniform General Rules 2015 (NSW) says that the higher amount may be recovered only if, at
the time the lump sum bill was given, the law practice made an “appropri- ately worded” disclosure in writing to the client indicating that the total amount of costs claimed in any ite- mised bill may exceed those claimed in the lump sum bill, and the higher costs are determined to be payable by a costs assessor or the Office of the Legal Services Commissioner.
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GOVERNMENT LAWYERS Innovation and teamwork key themes at Government SolicitorsWeek
BY FLOYD ALEXANDER HUNT
The Government Solicitors Week took place remotely this year, with speakers discussing innovative ways to navigate work in the public sector amid changes brought on by COVID-19.
e event, held from 7-11 September, saw 314 lawyers tune in over five days rather than attending the traditional one-day live conference. Lawyers were able to access 10 online conference sessions and post their questions to leading experts in- cluding Sydney barrister Bret Walker SC, NSW Surveillance Devices Commission- er Donald McKenzie, and constitutional law expert Professor Anne Twomey. Brett Walker SC (bottom right) led a thought-provoking session on the issue of legal professional privilege with respect to secrecy, particularly in the context of gov- ernment legal practice. “ ere is a balance between secre- cy and justice, which is a hallmark of a civilised system. We have far too much secrecy, and secrecy for its own sake en- genders suspicion,” he said. Australian Government Solicitor Mi- chael Kingston gave the keynote address, exploring executive federalism – the con- cept of coordinating state and federal ex- ecutive branches in enacting policy. “Executive federalism has not been a term traditionally employed in Australia to describe relations between the com- monwealth, state and territory govern- ments,” said Kingston. “But it is a pithy and apt term, particularly in the context of COVID-19, because it directs atten- tion to the structures that determine which government does what in the exer- cise of public power.” Another highlight was Surveillance Devices Commissioner Don McKen- zie who took viewers on a “bumpy ride” through the regulation of surveillance devices, discussing steps being taken to ensure the integrity of the Surveillance
Devices Act 2007 and outlined key strate- gies to problem solve in this area. Law Society of NSW President Rich- ard Harvey (top left) said the sessions offered targeted advice to assist practi- tioners to navigate the increasing com- plexity of government work in the era of COVID-19. “ e unprecedented and ongoing pub- lic health crisis has raised profound mor- al, legal and policy issues which will be explored over the next five days,” he said. “ e necessity of working together is one of the great lessons of this crisis.” At the end of the week, Harvey pre- “ e necessity of working together is one of the great lessons of this crisis.”.” Law Society of President, Richard Harvey
sented the John Hennessy Legal Scholar- ship to Sarah Wyatt, a solicitor from the Department of Premier and Cabinet, who accepted the honour remotely. Emma Langton (top), Senior Legal Officer in the Aboriginal Services Branch of Legal Aid NSW, won the prestigious Michelle Crowther PSM Excellence in Govern- ment Legal Service Award. She was there to accept her award in person, though without a handshake this year. Felicity Dougherty from the Australian Nuclear Science and Technology Organisation was recognised as highly commended.
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