LSJ - October 2015
ED SANTOWON FAMILY, FATHERHOOD AND DOING JUSTICE IN THE PUBLIC INTEREST
UNDERTHETABLE THE ROLE OF LAWYERS IN PREVENTING INSTITUTIONAL CORRUPTION
WINNINGMORE BUSINESS INASIA YOUR GUIDE TO LURING MORE CLIENTS IS STRESS REALLYMAKINGYOUFAT? WHEN CAREERS AND GENES COLLIDE WORKERSCOMPENSATIONREFORM A WIN FOR INJURED WORKERS? NO-ONE LIKES AWORKPLACE BULLY THE FWC’S JURISDICTION REVIEWED
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U nder-resourcing has led to unacceptable delays in the Family Court and Family Law Division of the Federal Circuit Court. Judges are not being replaced to ll retirements, resignations or absences as a Federal Government cost-saving measure. I am particularly concerned that long delays negatively impact parties in a number of ways, including children’s contact with parents and school enrolments. e Law Society will continue to call on the Federal Government to urgently address this issue so judges are replaced in a timely manner. e Royal Commission into Institutional Responses to Child Sexual Abuse has recommended a compensation scheme to provide ongoing support for the estimated 60,000 abuse victims. Under the proposal, funds would primarily be provided by those churches, schools, charities and other non-government institutions directly implicated, with state and federal governments as funders of last resort. Of key importance for victims is the ability to choose whether to participate in a redress scheme, or pursue their common law rights. e Law Society continues to support this position through its submissions and representational work. As lawyers, we often ful l a gatekeeper role, one that relies to a large extent on ethical judgment. It’s easy to make ethical decisions when everyone is acting with integrity – it is when a person stands against the tide that they need clear guidance and ethical strength. is and other important ethical issues were discussed by an impressive array of domestic and international experts as part of the Law Society’s premier ought Leadership event for 2015, the Re ections on Corruption Conference (see page 38 for a report). Providing representation through the Society’s legal policy and submission work gives members the opportunity to interact and learn, and fosters collegiality within the profession. Submissions from our 26 standing committees recently have included issues as diverse as strata legislation, the review of the Bail Act 2013 and remedies for the invasion of privacy in NSW. With about 100 policy submissions made by the Society each year, there is ample opportunity to make your mark in a positive way. Expressions of interest for membership of Law Society committees for 2016 are open now. Also a reminder that tickets are available for the 2015 Annual Members Dinner at Sydney Town Hall on 22 October. We are pleased to have as guest speaker for the event the NSW Attorney-General, the Hon Gabrielle Upton MP. See our website for details of both opportunities.
OCTOBER 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
Every now and then it’s good to clear out the cobwebs and look at things with a fresh perspective. at’s why in this edition of the LSJ you will notice a few changes. We’ve consolidated our sections and are using colour tags for ease of navigation. We have a couple of new additions we hope you’ll enjoy, including a legal knowledge quiz on page 14; new ethics and advocacy columns on pages 16 and 17; an expanded professional development section (including, due to popular demand, a new section called Smart Casual that will showcase some of the profession’s snappiest dressers); and a new lifestyle page called “Non-billable hours”. is is in addition to our regular features and extensive legal updates, which remain a priority. While the LSJ is a modern publication for a modern profession, it is humbling to look at the line-up of members who have been in the profession for 50 years (see page 16). What an astounding achievement – and what changes these practitioners must have witnessed over the years. Half a decade in one career is a rare ocurrence these days – congratulations!
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 email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org 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
CT Johnson is a global thought leader in managing foreign transactions and cross-border operations. He shares his knowledge on 10 ways Australian lawyers can win more business from Asia. Global focus p22
Julie McCrossin is a writer and trainer who studied law. In “Wanting to do justice”, she interviews Ed Santow, the Chief Executive O cer of the Public Interest Advocacy Centre. Cover story p28
Paul Baldock works at the Garvan Institute of Medical Research. In our health story “A lesson from cavemen”, he explains
Stephen Tully is a barrister at 6 St James Hall
Chambers. In our legal updates pages, he writes about the legal process for compensating Australian victims of overseas terrorism acts. Wrong place, wrong time p82
why stress may be making Australian
Cover phototgraph: Jason McCormack
workers fat and o ers some handy solutions. Health p54
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 NOVEMBER 2015
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OCTOBER 2015 I LSJ 5
24 HOTTOPIC Mental health month sparks debate over how best to discipline lawyers su ering mental illness 26 INFOCUS Attorney-General Gabrielle Upton introduces the NSW Young Lawyer’s Young Justice Program to 100 eager school children 28 COVERSTORY Julie McCrossin meets Ed Santow, the prominent CEO of the Public Interest Advocacy Centre
34 LAWASIA We preview the 2015 LAWASIA conference planned for November in Sydney 38 CORRUPTCONDUCT Kate Allman reports on a timely anti-corruption conference, with fascinating insights into the psychology of corruption 52 EXTRACURRICULAR An army veteran-turned-lawyer speaks with Jane Southward about his plans to revitalise the RSL 54 ISSTRESSMAKINGYOUFAT? Paul Baldock identifies a hidden health risk for professionals
Nutritionist Joanna McMillan gives the lowdown on this unfairly tarnished carb 57 AUDITYOURVALUES Rachel Setti explains why it is important to align your personal values with those of your workplace 58 CITYGUIDE Ute Junker finds the best places to eat, drink, shop and stay in Austin, Texas 62 YOUWISH The Byron at Byron works weekend-away wonders for LSJ editor Claire Cha ey
6 LSJ I OCTOBER 2015
46 DOINGBUSINESS Etiquette, fashion and tips to do better in business 48 ADAY INTHELIFE Surrogacy lawyer Andrea Wilson 64 LIFESTYLE Book reviews, events and giveaways 66 NON BILLABLES Yarns we can’t bill for 95 LIBRARYADDITIONS New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle
8 MAILBAG 10 BRIEFS
68 ADVOCACY: THE LATEST IN LAW REFORM 70 ADMINISTRATIVELAW: AUTOMATED DECISIONS 72 WORKERSCOMP: REFORM PACKAGE HIGHLIGHTS 74 TORT: THE PRECISE SOURCE OF INJURY & RISK 76 IMMIGRATION: ILLEGAL WORK PRACTICES 79 UNIFORMLAW: YOUR QUESTIONS ANSWERED 80 EMPLOYMENT: FWC BULLYING JURISDICTION 82 TERRORISM: VICTIMS COMPENSATION 84 PROPERTY: TITLE INSURANCE & INDEFEASIBILITY 86 NATIVETITLE: ALRC REPORT URGES REFORM 88 PUBLIC INQUIRIES: ROLE OF COUNSEL ASSISTING 90 MENTALHEALTHACT: RECENT AMENDMENTS 92 EVIDENCE: WHAT THE EXPERTS THINK 94 CONTEMPT: WHERE CIVIL & CRIMINAL BLUR 96 TAX: CGT & FAMILY PROPERTY SETTLEMENTS 97 CASENOTES: HCA, FCA, CRIMINAL & FAMILY
News and events from the legal world
14 PROFESSIONAL NOTICES
14 TAKETHE LSJ QUIZ 18 FROMTHEARCHIVES 19 CAREERMOVES Who moved where this month 20 OUTANDABOUT 22 GLOBALFOCUS 10 ways to win more business from Asia 42 CAREERCOACH 44 CAREER101 Entertainment lawyer Kayte Lewis
OCTOBER 2015 I LSJ 7
LETTERS TO THE EDITOR
Our wellbeing is always neglected and ignored when it should be the front-runner in any decision we make on a daily basis. I found the article interesting and extremely relevant to anybody working experiencing first-hand the harsh reality of how one’s health and fitness can deteriorate very fast when burdened by the stresses, pressures, daily challenges and realities of working full time in a law firm. Deterioration in health and fitness not only affects your confidence, self-esteem and wellbeing, but has a domino effect on your overall productivity, mental stability, and thought processes. I am not saying I have experienced the full extent of such deterioration first hand, but I have had a taste of such distress and witnessed it in others. Tim Arvanitis, solicitor A preference for paper I refer to the article on p84 of the July LSJ , “Old meets new: paper conveyancing and electronic CTs”. While I accept that electronic lodging is here to stay, I would nevertheless make the following points. First, with regard to those documents that can be lodged electronically, it is all the more important to ensure prior to lodging that no essential detail has been omitted. Sadly, that this is not happening is borne out by the number of documents in this profession. As a graduate, I am
requiring amendment. It was to guard against that for over 40 years that I kept an Almanac on hand and closely scrutinised every document prior to lodging. Second, if an eCT has issued then it is all the more vital that the holder of the CoRD consent spell out precisely the details of all incoming documents, and the solicitor acting for the incoming transferee/mortgagee has to ensure this has been done. Third, if the incoming mortgagee is not an APRA- regulated institution, then I cannot see the solicitor acting for such mortgagee agreeing to accept anything other than a paper CT. Fourth, I cannot see how settlement and lodging can take place simultaneously unless, of course, the lodging is by an APRA institution. Otherwise, it is all the more important to ensure that lodging does in fact take place as soon as is practicable after settlement so as to preclude the possibility of any conflicting dealing being lodged. I once had an instance of a caveat being lodged by the solicitor acting for a third mortgagee who had handed over a withdrawal of caveat at the settlement and no end of trouble ensued. Lastly, if I had to choose, I would always opt for a paper title. Gerald F. Donovan, Artarmon (retired 2008)
A new dress code?
The dress requirements for solicitors in court need to be revised. If the courts are going to allow police to wear loaded firearms in court, we should be permitted to wear Kevlar vests, particularly given that police themselves are occasionally hit by friendly fire. That is, of course, providing that the Police Association is okay with it. Joe Weller, solicitor Ode to Dickens I had to laugh at the heading “Is the law an ass?” over the letter written by my friend Andrew Melville, published in the August issue of LSJ . Surely there can be only one answer – “No, the law is a ass”. Any other answer would be an insult to Mr Beadle, not to mention Charles Dickens. Patricia Strachan, retired to the wilds of Thurgoona I was scanning through the August issue of LSJ during my late night train ride home after a long day at work, and a particular article caught my attention. The article was to do with wellbeing and nutrition (p56, “The lowdown on gut health”). I read this article thoroughly – every single word – as I have quickly learnt, in the short time I have had a full-time job, that as professionals we do not prioritise our bodies, health or mental health over our work. Stop neglecting your health
AWOMAN’SWORLD ASPOTLIGHTONTHEEARLYWOMEN LAWYERSWHOCHANGEDTHEGAME
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19/08/2015 11:32 am
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: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! JoeWeller has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
8 LSJ I OCTOBER 2015
Beware dodgy contracts Recently I was asked to review an off-the-plan contract for a proposed three-building development at Rouse Hill. My client had been given an attractive glossy brochure by the selling agent that contained the usual plans and layout for the unit. The contract made it clear that despite there being a development consent, the developer was still considering what it would build, reserved the right to build all or none of the three buildings, any development was subject to the developer obtaining finance, contained a vague schedule of finishes (e.g. “selected carpet”, whatever that means) and, importantly, contained no plans. When I asked for the floor plan from the brochure to be included it was refused. So, at the end of the day we had a meaningless, one-sided contract where my client would be locked into an arrangement for some 2.5 years without any guarantee that the unit would be built. In the meantime a deposit of some $71,500 was locked up. Developers and their solicitors are issuing these contracts because they can get away with in it in the current overheated market. It’s about time something was done by the State Government to legislate the minimum standards for these contracts. Perhaps the ACCC could intervene in light of its powers regarding unfair contracts. David Jackson, David Jackson & Associates, Sydney
WWI grant of probate Recently, I came across a photocopy of a probate document, that I had put to one side some years ago. I thought members may be interested in a condition in May 1916 that had been imposed by the Supreme Court of New South Wales on the particular grant of probate. I suspect it must have been a standard condition during the War. The condition reads as follows: “This Grant is made upon the condition that no portion of the Assets shall be distributed or paid during the War to any Beneficiary or Creditor who is a German Austro-Hungarian Turkish or Bulgarian subject wherever resident or to anyone on his behalf or to or on behalf of any person resident in Germany Austria Hungary Turkey or Bulgaria of whatsoever nationality without the express consent of the Crown and if any distribution or payment is made contrary to this condition the Grant of Probate will be forthwith revoked.” Robert N Caddies, Newcastle Beckett case exposes DPP Despite my 2007 retirement, community – observing and reacting to its contribution to society – now in my 63rd year of participation. I am currently relishing Robert Harris’s 2013 book on the Dreyfus Affair, having recently completed Frank Moorhouse’s Australia under Surveillance . Each of them deals with instances I still regard myself as a member of the legal
Verbose, indeed Reading the Society’s circular stipulating that following the commencement of the Uniform Law, we need to update our stamps to record “An Australian legal practitioner within the meaning of the Legal Profession Uniform Law (NSW)”, you would think that in an age where we are constantly criticised by the powers that be for being verbose, they would set an example and settle on a more succinct description, such as “Legal Practitioner”. Are we being encouraged to go back to the days of charging by the word? Charles Stanford, Stanford Lawyers. A sad passing I am writing, sadly, to notify the Society of the death of Ian Stuart Denis Maguire, a retired solicitor who passed away on 28 August 2015. One of Ian’s and my cousins, Judge Christopher Robison, follows: “Ian was a wonderful human being, possessed of many qualities – too many to mention ... suffice to say he was a man of true compassion, who undoubtedly changed many lives, particularly due to his commitment to the law and justice in so many ways. His sense of justice is a model example for all lawyers to follow and his firm views about what needs to be done to ensure the rights of others is summarised the feelings of his and my siblings as
where governments, through agencies right up to senior levels, fought to extreme times and steps to defend acts and decisions that ultimately were either substantially or utterly discredited, bringing disgrace upon those involved, including lawyers. We now seem to have been presented with our own local example, unless another appeal and drawn-out hearing readjusts the balance once again, in the Roseanne Becket case. Many, probably all, of us have experienced the “right- case, wrong-client” syndrome leading to a teeth-grinding settlement, but governments seem to manage to make “wrong-case, wrong-client” choices of sometimes epic proportion. I have had general, multi- decadal respect for the office of the DPP, but, in this instance, its “client”, the senior investigating police officer, appears to have been – and this goes to the heart of the lengthy and legalistically vigorous opposition to the lady – blatantly clay-footed. Like so many of the other such cases, this establishment intransigence probably will never be explained or justified, but the distress caused to all those involved, the frightful costs incurred, and the reputational damage to the institution will remain. No matter the ultimate outcome, I doubt the old default police refrain of “We got her to rights but just couldn’t convince the ‘jury’” will help them this time, either. Richard Hansford, Pymble
well known.” John Stinson, Diamond Conway Lawyers
OCTOBER 2015 I LSJ 9
Refugee centre succeeds despite funding cuts Despite the Federal Government cutting funding by 85 per cent last year, the Refugee Advice and Casework Service (RACS) is celebrating a number of recent successes in the Administrative Appeals Tribunal (AAT).
FIRMSFAILING FIRSTCONTACT Seventy-eight per cent of law firms fail the First Impressions Test and only one in five clients would recommend their firm, according to new research. Customer Experience specialist CXINLAW says its research shows 78 per cent of prospective clients did not have a positive initial contact with law firms, 45 per cent of firms left shoppers likely to call competitors and one third of all calls were so poor that an instruction would definitely not take place. The research, ‘No Second Chance: The Importance of First Impressions to Law Firms’, was produced in collaboration with the Australasian Legal Practice Management Association (ALPMA). The research sampled a range of firms of various sizes across a range of practice areas. CXINLAW used ‘secret shopper’ techniques commonly found in the retail industry to establish the quality and impact of client interactions with legal staff. More than 65 “perception points” were used to measure performance at the first contact stage. These were combined with results of other CXINLAW data to produce the analysis. Carl White, Director of CXINLAW (Australasia), said: “There is worrying stuff for firms in these results. It can’t be good when over half of online enquiries received no response and when 40 per cent of lawyers are conveying a tone of inconvenience when talking to a prospective client. Firms are spending significant money on branding and promotion, but then not delivering the service promised. Most clients do not know about law, but they know about great service. They get it elsewhere and they don’t understand why they don’t get it here.” The report is available at cxinlaw.com
From left: solicitors Scott Cosgriff, Rawan Arraf, Sarah Dale, Katie Wrigley and Simon Bruck.
RACS has helped 2,870 people with their claims for refugee status over the past year, many of whom do not speak English and have survived torture and persecution in their home countries. Since the government cuts, 80 per cent of this work has been taken on pro bono by volunteer solicitors, interpreters and law students. “The numbers of people seeking out help has really exploded in the last couple of years,” says Katie Wrigley, Principal Solicitor and Migration Agent at RACS in Randwick. “This is because of the government’s previous decision to prevent asylum seekers applying for a protection visa. “Now that the bars are being lifted, they are able to apply for protection visas and that’s when the legal need hits. At the same time, some people need our help in challenging decisions to cancel their bridging visas.” A bridging visa is a temporary visa granted to an asylum seeker, allowing them to leave immigration detention and live in the community. Stringent reporting conditions prohibit criminal conduct or participation in paid or unpaid work. Any breach of these conditions can lead to
cancellation of the visa, and a bureaucratic nightmare inevitably ensues when the applicant tries to appeal. “If there’s a criminal charge – founded or unfounded – the asylum seeker’s bridging visa can be cancelled,” says Simon Bruck, a solicitor at RACS. “Even once the magistrate decides that the charged person is not a risk to the community and is granted bail, or the charges are dismissed under the normal criminal process, they are given just a few minutes to prepare a response to the business days to apply for review to the Administrative Appeals Tribunal. If the appeal is not lodged in time, they face lengthy detention in Australia or deportation to immigration detention on Nauru. “Nauru is pretty much a dark space for us,” says Scott Cosgriff, a senior solicitor at RACS. “Every person who has spent time there has been damaged, mentally and physically.” RACS needs volunteer assistance from students, solicitors and interpreters, and welcomes any donations to keep it afloat in the face of its funding crisis. For more information visit: racs.org.au/become-a-friend-of-racs/ Department of Immigration.” Asylum seekers then have two
10 LSJ I OCTOBER 2015
Lawyerflies high for a cure A Sydney lawyer is flying around the world to raise $150,000 for research into cystic fibrosis, a disease afflicting his 13-year-old daughter, Kristen. Matthias Fuchs, the chief procurement officer at Boral, will leave on 2 November and spend 12 days travelling to every continent except Antarctica without leaving a plane or airport. Qantas is supporting his travel, which will involve almost 200 hours in the air over 176,000 km. DLA Piper, Westfield, Mack Trucks, Optus, Adecco, JLT, Sherrin Rentals, Dowell and MSM Loss Management are also involved. This is the fourth time Fuchs has raised money through the arduous travel experience and he hopes the 2015 challenge will bring his fundraising total to more than $500,000 for the Children’s Hospital, Westmead. There is no cure for cystic fibrosis, an inherited genetic condition that is diagnosed at birth during the heel-prick test. According to Cystic Fibrosis Australia, it is a disease that affects the lungs and digestive system due to a malfunction in the
exocrine system, which is responsible for producing saliva, sweat, tears and mucus. Lung failure is the main cause of death and one in 2,500 babies in Australia is diagnosed with cystic fibrosis each year. One in every 25 people, often unknowingly, carries the gene. Life expectancy has increased to 38 years for cystic fibrosis sufferers and Fuchs hopes the money he raises will help medicos improve the early treatments for symptoms. For more information or to make a donation visit: give.everydayhero.com/au/flying-for-kids-with- cystic-fibrosis
1 in 25 people carries the CF gene
1 in 2500 babies is diagnosed with CF each year
Source: Cystic Fibrosis Australia
OCTOBER 2015 I LSJ 11
Government solicitors gather for annual conference On 1 September, the Law Society’s annual conference for government solicitors was held at the Sheraton on the Park with 130 delegates in attendance. Delegates from all levels of government attended.
On 5 September, 510 guys and gals donned their glad rags and tripped the light fantastic at the 2015 Young Professionals’ Charity Ball. The theme was “Roaring Gatsby Soiree” with the art-deco styling of Doltone House Hyde Park transporting attendees back to the 1920s. In the true spirit of a Jay Gatsby party, the tone was swanky, food decadent, and prohibition disregarded. The guys looked swell in their sharp suits, bow ties, fedoras and pocket squares and the gals channelled Daisy Buchanan with pearls, fringing, and feathers adorning their flapper frocks. Money raised from the night went to NSWYL’s 2015 charity Beyond Blue, with ambassador Alan Sparkes inspiring attendees with his powerful, personal tale of his experience with Puttin’ on theRitz Are you thenext President’sMedal recipient? The Law Society of New South Wales is calling for nominations for the 2015 President’s Medal. The President’s Medal is an annual award that recognises significant personal and professional contributions to the betterment of law and justice in the community by a NSW solicitor and member of the Law Society of NSW. The winner will be announced at the Law Society’s Annual Members Dinner on 22 October 2015. Past winners of the medal include David Giddy (2009), Glenn Thompson (2010), Matthew Myers (2011), Stuart Tipple (2012), Sam Macedone (2013), and Lieutenant Commander Shannon Richards (2014). For information on eligibility and how to enter, visit: lawsociety.com. au/presidentsmedal. Nominations close on 9 October . PTSD and depression. See page 20 for photos of the evening.
From left: Renee Bianchi, John McKenzie, Doug Humphreys, Neil Bayles and John Eades; Penny Lee and Virginia Newell; Moira Brophy, Jeremiah Cudilla and Lynley Gardner.
The annual conference dinner was opened by John Eades, President of the Law Society, and had, as its after-dinner speaker, Mr John McKenzie, NSW Legal Services Commissioner, who gave an entertaining and thought-provoking speech. The 2015 John Hennessy Research Scholarship was announced and presented to Virginia Newell and Penny Lee from the Department of Industry during the dinner. Newell and Lee will examine the possibility of developing a “no fault” inquiry team model to undertake “no blame” investigations in relation to certain serious incidents at mining workplaces. They will look at the models that exist in other Australian jurisdictions and assess their suitability for the legal system in NSW. The 2015 Excellence Award in Government Legal Service was awarded to Jane Warmoll, Moira Brophy, Lynley Gardner and Jeremiah Cudilla of the Veterans’ Review Board, National Registry, for the implementation of a successful trial of alternative dispute resolution processes to improve the high quality of services the board provides to veterans, members of the Australian Defence Force and their families.
Timothy Pilgrim, Acting Australian Information Commissioner, gave the keynote address, describing how the office had undertaken an increasing number of strategic privacy impact assessments, developed a privacy oversight data retention scheme, and worked collectively with Border Protection to achieve a balance between individual privacy and national security during the past year. Gaby Carney, Director of Policy and Practice at the Law Society, discussed the Legal Profession Uniform Law and outlined the development of the law, the role of the regulatory bodies, and issues facing government lawyers as a consequence of the new legislative framework. Dr Ashley Tsacalos, a partner at Norton Rose Fulbright Australia, provided a thought-provoking address to delegates on the lessons learnt by government from the Home Insulation Royal Commission and the need for government solicitors to provide frank and fearless advice so robust decisions are made. Professor Trevor Waring discussed mental health and wellbeing for government solicitors in a period of exponential technological change and gave practical tips on the enjoyment of life, the benefits of inclusive relationships, community giving and life review.
12 LSJ I OCTOBER 2015
Onlinecourt to make lifeeasier
Access to justice will be faster, easier and cheaper with the pilot of the State’s first Online Court, says Attorney-General Gabrielle Upton. The Online Court initially will be used for civil cases in the Local Court General Division and will eliminate the need for legal practitioners to attend pre-trial hearings. For the first time in NSW, legal practitioners will be able to make requests and seek preliminary orders, such as adjournments and hearing dates, online. The change will deliver major benefits to lawyers and their clients from suburban, regional and remote areas. The system will be trialed for 12 weeks and, if successful, roll out in 2016.
On 3 September, 700 past and present female police employees paraded through Sydney to celebrate 100 years of women in the NSW Police Force. The parade marked the final leg of a state-wide Women in Policing baton relay, which began in March and has made its way across all 76 Local Area Commands in NSW.
NSW Police Commissioner Andrew Scipione led the parade to its final standpoint on the Opera House forecourt, where the women were greeted by dignataries including former Governor of NSW Dame Marie Bashir. The work of more than 7,000 female o cers in the current NSW Police Force was gratefully acknowledged.
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OCTOBER 2015 I LSJ 13
Time for change Father Frank Brennan, a
NSWLAW SCHOOL COMMITSTO RECONCILIATION ACTIONPLAN UNSW Law has become the first law school in the country to adopt its own Reconciliation Action Plan (RAP). The document, which has been approved by Reconciliation Australia, was launched at an event featuring Indigenous speakers and artists, including performances from UNSW Indigenous student Bridget Cama, and rapper Rhyan Clapham. The RAP commits UNSW Law to a range of initiatives, including measures to increase the number of Indigenous staff and students in the faculty. UNSW Law has had a long-standing commitment to Aboriginal and Torres Strait Islander people’s legal education. Since 1975, 80 Indigenous students have graduated from its programs and 54 students are now enrolled in the faculty. The Indigenous Law Centre, the only research centre of its kind in Australia, is located at UNSW Law. “The RAP isn’t just a rhetorical statement – it’s an accountability measure. We are laying down a series of commitments we can be checked against,” says the Dean of Law, Professor David Dixon. Reconciliation Australia works with organisations to develop business plans that document what they will do within their sphere of influence. “It came about because we were working on a range of things such as scholarships for Indigenous students and building up numbers of Aboriginal and Torres Strait Islander staff and one of our colleagues said it looked like a Reconciliation Action Plan,” says Professor Dixon. “We were already doing a lot of work in this area, so the RAP pulls them all together and sets targets for the future.”
Cross-examination Test your legal knowledge ...
1. What is the name of the lawyer in Harper Lee’s 1960 novel, To Kill a Mockingbird ? 2. Who was the most recent Justice to be sworn in to the High Court of Australia?
human rights lawyer, Jesuit priest and professor of law at the Australian Catholic University, has released possible wording for changes to the Constitution to recognise Indigenous Australians. Father Brennan, who is also Adjunct Professor at the ANU College of Law and National Centre for Indigenous Studies, suggests inserting an Acknowledgment before Chapter 1 of the Constitution with the words: “We, the people of Australia, recognise that the continent and the islands of Australia were first occupied by Aboriginal and Torres Strait Islander peoples. “We acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters. “We acknowledge and respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.” He also suggests repealing section 25 and 51 (26) of the Constitution and inserting: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters.” In a speech at St Aloysius College on 27 August, Father Brennan, who was appointed an Officer of the Order of Australia (AO) in 1995, said just eight of 40 referendums put to the Australian people had been accepted. He said the 50th anniversary of the 27 May 1967 changes to the Constitution would be a useful time to vote on further changes. He pointed out that the 1967 changes removed all reference to Aboriginal and Torres Strait Islander peoples.
3. At what age are judges forced to retire? 4. What is the French term used to describe a discussion regarding legal or evidential issues between judge and counsel while the jury is not present?
5. For how many years has Queen Elizabeth II reigned? 6. Which five Australian
jurisdictions allow for majority verdicts in jury trials?
Which Australian actor plays lawyer Cleaver Greene in the ABC television series Rake ?
8. Who was the barrister for the prosecution in the notorious “Backpacker murders” trial of Ivan Milat? 9. Which section of the
Australian Constitution allows the parliament to legislate on trade and commerce? 10. According to Amnesty International, how many countries can still invoke the death penalty under law? Answers on page 65.
On 17 August 2015, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Jayram Narayanasamy be removed from the Roll of Local Lawyers and that he pay the Society’s costs as agreed or assessed. On 7 September 2015, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Sonny Wilson be removed from the Roll of Local Lawyers and that he pay the Society’s costs as agreed or assessed.
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LARISSA BEHRENDT six
Behrendt was a keynote speaker at a conference marking 40 years since the release of Damned Whores and God’s Police by Anne Summers. She talks to JANE SOUTHWARD .
What is the legacy of Damned Whores and God’s Police ? I first read it in the mid-80s when I was 17 and at UNSW. It was a ground- breaking book. Then I read The Women’s Room by Marilyn French and Germaine Greer. Anne Summers showed how you can identify a dynamic and a power imbalance. The book opened up my thinking and I was never embarrassed about being a feminist. It also started to make me think about what my own contribution to the debate was. How did your parents shape you? I lived in an era where my mother had a career in the navy and had to leave it because she married. Both my parents had ambitions that were thwarted and this made them very ambitious for my brother and me. My mum had wanted to go to university but her dad wouldn’t let her because she was a woman. Dad always wanted to do law but didn’t because he had to leave school at 14 to get a job. How far have we come in terms of equality of the sexes? The legal profession is still a place where there is a level of misogyny that makes it very di cult for women to succeed. You hear people chortling
about women who have a baby on the Friday and are back in the o ce the next week, and what a go-getter she is, and you have to think, ‘What sort of reflections are we making on the society we are in?’. This is controversial, but I feel there has been a greater acceptance of what needs to be done to improve access for Indigenous students to careers in the law than there has been for women. We have so much further to go until there is an equal playing field for women in the profession. What was themost profound thing about studying at Harvard Law School? The most significant thing was the ability to get out of the space that I had grown up in, where I was always labelled as being Aboriginal and being Paul Behrendt’s daughter, as dad was active in the community. It’s the same for all students – you go overseas and you don’t take any of that coding with you. It was also really liberating to be in an environment so rich in ideas and bigger philosophies. Larissa Behrendt is Professor of Indigenous Research and Director of Research at the Jumbunna Indigenous House of Learning at the University of Technology .
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mind your ethics
WOMENLAWYERS SHINEATGALADINNER The State’s top female lawyers were recognised at the 7th NSW Women Lawyers Achievement Awards on 11 September at Cockle Bay Darling Harbour. Taking up NSW Women Lawyers’ 2015 theme of “Engagement”, the gala dinner featured the Honourable Quentin Bryce AD CVO and the Honourable Acting Justice Jane Mathews in conversation. Winners on the night were: • Woman Lawyer of the Year, Private Practice Katrina Rathie, Partner in Charge, Sydney, King & Wood Mallesons • Woman Lawyers of the Year, Government, Corporate or Statutory Body Susan Price, Director PricewaterhouseCoopers • Woman Lawyer of the Year, Community or Academic Organisation Carolyn Jones, Senior Solicitor Women’s Legal Services NSW • Woman Barrister of the Year Jane Needham SC, Barrister 13th Floor St James Hall Chambers • Woman Lawyer of the Year, Up and Coming Marina Brizar, Head of Corporate & Private Clients Playfair Visa & Migration Services • Woman Lawyer of the Year, 2015 Anne Healey, Barrister Frederick Jordan Chambers • Outstanding Law Firm of 2015 Baker & McKenzie • Highly Commended Judging Panel’s Award Jacqueline Vincent, Partner Watts McCray
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
Communications with thecourt BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR, THE LAW SOCIETY OF NSW The art of persuasion is often described in the ancient Latin text of “per suasio or via sweetness”. What are the ethical obligations upon a practitioner when communicating with the court? Many practitioners will experience the need to vigorously press the case of their client and yet must be mindful of the obligations upon them to act in accordance with the Professional Conduct and Practice Rules. It is worth noting a few important points on the required standards that apply to practitioners with particular emphasis on the Solicitors’ Rules that prescribe how communications between the practitioner and the Court must be conducted. “Formality” before the Court must be maintained under all circumstances pursuant to Solicitors’ Rule 18 where “…. A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms Lawyers celebrate 50years in the job Several Law Society of NSW members celebrated 50 years of practice at a special lunch held in Sydney last month.
of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court ...”. The conduct of practitioners should be defined by their courtesy and assistance to the Court, yet reflect the necessary formality expected and required by the Court. Regrettably, these attributes have been noted more by their omission, rather than the clear demonstration by some practitioners in recent times. It is a worthy addition to the reminder list that every practitioner should have, to include strict compliance with our professional obligations in all communications to the court. The conduct of practitioners should be defined by their courtesy and assistance to the Court, yet reflect the necessary formality expected and required by the Court.
The attendees were (from left to right): John Bell, David Bentley, Robert Bruce, Brian Butcher, Warwick Caisley, John Hegarty, Victor Kelly, Brian Lane, John Newnham, Alfred Rose, John Stinson, David Thomas, James (Jim) Warland Those absent were: Neville Allen, Robert Armstrong, Maxwell Bisley, David Jones, Steve Masselos, Nicholas Papallo,
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What the committees are advocating this month ... LAW Reform
INTEREST INANIMALLAWBLOOMS More than 200 students, practising lawyers, academics, and members of the public attended the NSW Young Lawyers Animal Law Committee’s Animal Law Conference, held at the University of New South Wales in August.
For the full round-up of Law Society advocacy, see pages 68 and 69.
Police searchpowers The Criminal Law Committee has made a submission to the NSW Ombudsman’s review of the police use of the new Firearms Prohibition Order (FPO) search powers. In the first 10 months of the review, 642 FPO searches were conducted on people and vehicles. However, none of the searches resulted in police finding a firearm. High social needs communities The Indigenous Issues Committee, Rural Issues, Criminal Law and Juvenile Justice Committees provided a joint submission to the NSW Parliamentary Inquiry into service coordination in communities with high social needs. The Indigenous Issues Committee suggested ways to deliver better service coordination to improve outcomes for Aboriginal children and families in respect of care and protection. The committee noted the work in Bourke undertaken by the Maranguka initiative and the recent partnership with Just Reinvest . Foreign resident tax The Property Law Committee made a submission to the Commonwealth Treasury, raising concerns in relation to the Foreign Resident Capital Gain Withholding Tax proposal. The committee had concerns about the impact of the proposed tax measure and queried whether the existing revenue leakage from unpaid foreign resident capital gains tax justified the red tape it imposed.
Animal law is an increasingly popular subject for lawyers and students.
A range of presentations was delivered at the conference with leaders in the field discussing the most pertinent contemporary animal protection issues. The Honourable Michael Kirby AC CMG (pictured, above right) opened the conference with an inspiring message: “Law … is about our conscience”. Philip Wollen OAM persuasively argued that changes in current animal agricultural practices would curtail animal cruelty and support the environment, the world economy and the alleviation of poverty. Greens MP Mehreen Faruqi presented on problems associated with puppy farming, while Dr Alex Bruce, Associate Professor at the ANU College of Law, addressed the role consumer law could assume in animal welfare standards. Attendees also were privileged to hear from several practising animal lawyers, including Jed Goodfellow, National Policy Officer for the RSPCA, who argued for the
need for transparency in the agricultural sector and shared his concerns about recent political endeavors to introduce laws that could chill attempts to shed light on the agricultural industry. Emmanuel Giuffre, Legal Counsel at Voiceless and author of the Voiceless Dairy Report , illuminated the legal framework that regulated the dairy industry and the animal welfare issues inherent in the industry. Australian animal cruelty legislation and the process for prosecuting breaches were explored by Andrew Clachers, NSW RSPCA Prosecutor, who drew upon his extensive experience to provide many examples of the operation of this area of law. Shatha Hamade, Head of Investigations at Animals Australia, examined the important but obscure disjuncture between the government and industry depiction of the live export trade and the grim realities of the practice.
Michael Carnegie, John Conlon, Ian Crichton-Browne, Norman (Jim) Fiford, Michael Fisher, and George Williams. Marita Ranclaud, Philip Slade and Peter Wood.
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Briefs FROM THE ARCHIVES
review THE YEAR IN 1985
Take a trip down memory lane through the pages of the Law Society Journal.
LEGALREPUTATIONSUNDERSCRUTINY The legal community faces a
huge challenge as Justice Lionel Murphy, Judge John Foord, Rex Jackson and Murray Farquhar face criminal charges. The State’s new Attorney-General, Terry Sheahan (pictured), vows to restore the community’s faith in the legal system.
“COMPETEORPERISH” The advent of computers dominates the Journal throughout 1985. Law Society president Fred Herron advises members to “compete or perish”. “Computers will enable us to counter the criticisms that are being levelled against us, while at the same time keeping the profession intact and independent,” Herron tells the 1985 Opening of Law Term Dinner. “Computers provide us with the means of embarking upon entirely new methods of delivery of legal services. What is more important, those methods are much more e cient and economical than any methods we have ever used in the past.”
WHAT’SNEW? Capital gains tax is introduced in Australia on 20 September, one of a number of tax reforms by the Hawke/Keating Government. “It will be very di cult for us in 1985, when it appears that one High Court judge, one District Court judge, one former Cabinet Minister and one former Chief Stipendiary magistrate will all be on criminal charges in various sets of circumstances,” Sheahan tells the Journal . Murphy and Foord were acquitted.
The Drug Misuse and Tra cking Act 1985 begins.
NSW becomes the last Australian State to formally abolish the death penalty for all crimes.
HEROINCRISIS “Australia can no longer collectively bury its head in the sand to escape the heroin problem,” writes John Marsden, national president of the Council of Civil Liberties in May. At the time the Bureau of Crime Statistics and Research estimates that between 50 and 60 per cent of NSW prisoners serving sentences for armed robbery or break and enter o ences had serious heroin addictions when they committed the crimes. “The criminal justice system, in relation to addicts, is spiteful and unfeeling,” Marsden writes. “It is a system dependent on punishment and deterrents ... The addict is the subject of a terrible and debilitating disease, requiring careful and compassionate treatment.”
Law Society 1985 president Fred Herron at his desk.
NSW Chief Justice Lawrence Street also covers the topic of computers in his address at the dinner, saying, “The benefits of computerisation in administration and as a management tool are a little short of wondrous ... The computerisation of case law must be our valued servant and not our unyielding master”. In March, the Journal publishes a report on preventing repetition strain injury (RSI) and reports that “management negligence is the key problem in failing to prevent RSI”.
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