LSJ - October 2017
ISSUE 38 OCTOBER 2017
THE INHERENT POWEROFGIVING HOWONE LAWYER’S PRO BONO EXPERIENCE ABROAD CHANGED HER LIFE – AND HER CAREER
TRAGEDYANDTRAUMA A CARE AND PROTECTION LAWYER’S DAILY EXPERIENCE OF FINDING HOPE FOR KIDS
IS IT TIME FORABILLOF RIGHTS? A VEXED QUESTION RE-EMERGES AN INCREASINGLYUPHILL BATTLE WHY TRUE EQUALITY IS SO ELUSIVE GOINGFROMGOODTOGREAT TOOLS TO GIVE YOU THE EDGE
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36 PROFILE Julie McCrossin meets Legal Aid solicitor Teela Reid 40 BILLOFRIGHTS Prof George Williams and Anthony Levin examine the vexed question of whether Australia needs a Bill of Rights 50 ADAY INTHELIFE A care and protection lawyer from Newcastle tells Jane Southward about helping kids find hope
52 EXTRACURRICULAR A busy solicitor tells
Meet the winners of the Society’s awards for government solicitors 28 HOTTOPIC Former Sex Discrimination Commissioner Liz Broderick on why the work for advocates is getting harder 30 COVERSTORY DLA Piper solicitor Sarah Mellowes explains how working with female lawyers in Nepal renewed her commitment to the rule of law
Dominic Rolfe how bodybuilding boosted her health and worklife 54 PSYCHE Psychologist Rachel Setti has some tips for lawyers who want to move from good to great 58 TRAVEL Lynn Elsey suggest some key things to experience in Rome and enjoys a luxiurious stay at the St Regis in Florence
ISSUE 38 I OCTOBER 2017 I LSJ 3
68 ADVOCACY: THE LATEST IN LAW REFORM
6 FROMTHEEDITOR 8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 23 EXPERTWITLESS 24 OUTANDABOUT 23 THE LSJ QUIZ 44 CAREERCOACH 46 CAREER101 Sapna Patel, CEO of ImmiAdvisor 48 DOINGBUSINESS Henry Davis York legal secretary Michelle Binskin
Where you are going wrong in the weights room
70 CONSUMER: MISUSE OF MARKET POWERS
72 EU LAW: BREXIT AND FREEDOM OF MOVEMENT
A new report on lawyers’ mental health from the American Bar Association
75 EMPLOYMENT: PROTECTING VULNERABLE WORKERS
78 COSTS: PLAIN PACKAGING ARBITRATION
80 TRUSTS: PROTECTIVE MANAGEMENT ORDERS
Book reviews and our movie giveaway 66 NONBILLABLES
82 PROPERTY: ECONVEYANCING PRINCIPLES & PLATFORMS
84 ESTATES: DECEASED ESTATES EXEMPTIONS FROMDUTY
James Hall on amateur mixed martial arts
86 PLANNING: EXISTING USE RIGHTS –RECENT DECISIONS
ADDITIONS 106 AVIDFORSCANDAL
88 CRIMINAL: JOINT CRIMINAL ENTERPRISE & MURDER
90 RISK: ENDURING POWERS OF ATTORNEY
91 CASENOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS
4 LSJ I ISSUE 38 I OCTOBER 2017
A WORD FROM THE EDITOR
As I write the editor’s note for this edition, I am lucky to be in Tokyo, Japan, for the 30th LAWASIA annual conference.
As our sister organisation – and an organisation of which Law Society CEO Michael Tidball is also CEO – the Law Society has a long and proud history of supporting and working closely with LAWASIA. ere is something so special about coming together with more than 1,600 delegates from all over the world. e diversity of backgrounds, views and experiences is just wonderful – as is the fact that everyone is bound by the common pillars of rule of law, human rights, and a desire to forge new business relationships and networks across the region. It is also one of life’s joys to discover another culture, especially one as rich, quirky and unique as Japan’s. is edition’s cover story touches on a similar experience, with Sydney lawyer Sarah Mellowes relaying her experience in a pro bono capacity-building expedition to Nepal. Sarah was part of a global team tasked with helping women lawyers in Nepal develop skills critical to successful practice – skills that often are di cult to obtain due to a lack of support and training for lawyers who are marginalised for cultural and social reasons. While the Nepalese women clearly bene tted, so did the volunteers. at is a feeling replicated here in Tokyo. A sense that no matter what the cultural, economic or social divide, we are part of a global community of people who, in their own way, all contribute to strengthening the rule of law, wherever they may be. It’s also a reminder that cooperation, mutual understanding, and making an e ort to better understand our fellow humans is something to which we should all aspire. After all, more often than not, this leads to tolerance, compassion, and even friendship. In times like these, what could possibly be more important?
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen
Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 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
LIZ BRODERICK Hot topic p28 In an extract from her Hal Wootten Lecture at UNSW last month, the former Sex Discrimination Commissioner paints a troubling picture of the challenges facing legal advocates around the world.
SARAHMELLOWES Cover story p30 DLA Piper’s Sydney Pro Bono Coordinator travelled to Nepal earlier this year to help lead a training program for women lawyers. She tells how the experience inspired her passion for the law.
GEORGEWILLIAMS Feature p40 With a new book out and a Law Society Thought Leadership event on the issue
ANNE McNAUGHTON European Union Law p72 Anne is a senior lecturer
at ANU Law School, Adjunct at the ANU Centre for European
27,325 * *AUDITEDMARCH2017 DISTRIBUTION
this month, the UNSW Dean of
Studies and Fellow of the European Law Institute. She discusses freedom of movement and
Law says Australia’s exceptionalism when it comes to a bill of rights is troubling.
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residence in the European Union.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
Cover image: Sarah Mellowes
6 LSJ I ISSUE 38 I OCTOBER 2017
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ISSUE 38 I OCTOBER 2017 I LSJ 7
hallenges faced by the community legal sector and its ability to cater for an increasing number of vulnerable people seeking help are leading to more demand for pro bono services across the profession from a vast array of people in need, including victims of family violence, victims of discrimination,
asylum seekers, the homeless and the unemployed. Without the selfless commitment of solicitors to do pro bono work, many disadvantaged people who are otherwise unable to afford or access legal services would be left in desperate circumstances. The duty of the legal profession to uphold the rule of law, safeguard access to justice and defend people’s rights is even more important in an era when balancing the traditional rights and freedoms of ordinary Australians is being challenged, for example, by competing and important needs for public security and national sovereignty. The harsh predicament in which Australian laws, developed by successive governments, place people seeking asylum on our shores brings into
sharp focus the need to consider complex problems such as these through the lens of human rights law. A cornerstone of Australia’s campaign to be elected to the United Nations Human Rights Council for the 2018 to 2020 term was our pledge to “continue to stand up for human rights” and to be “pragmatic, principled and passionate about finding solutions to complex issues”. Yet, Australia remains the only Western democracy without a Federal charter of rights to protect its citizens. The role of the legal profession in upholding the rule of law and safeguarding rights and freedoms through appropriate law reform and human rights jurisprudence is critical. By incorporating human rights jurisprudence into the every day practice of law, individual practitioners can contribute directly to the development of Australian human rights jurisprudence. This requires some innovative thinking. To assist practitioners, on October 17 the Law Society of NSW is hosting a panel as part of our Thought Leadership series entitled “Human Rights in Unchartered Territory” with eminent thinkers including NSW Supreme Court Judge The Hon Justice Stephen Rothman AM, Barrister Kate Eastman SC, University of NSW Law Dean, Anthony Mason Professor and Scientia Professor George Williams AO and Principal Solicitor of the National Justice Project and Adjunct Professor of Law at Macquarie University George Newhouse. The event will be facilitated by distinguished journalist, publisher and lawyer, Richard Ackland AM. I encourage members to participate in the elections for the Council of the Law Society of NSW. The ballot closes on October 23 at 2pm. October heralds several other important events including our Annual Members Dinner on October 26 which promotes collegiality and solidarity in our profession. We are delighted to announce our guest speaker, Peter Greste, award-winning journalist and correspondent. The challenges facing lawyers in rural practice are distinct and complex, even for legal issues that are common across our profession. Among the important topics to be addressed at the Rural Issues Conference on October 27 are changes to domestic violence laws, police powers, rural crime rates, and property law issues. We also are excited about the 2017 Australian Young Lawyers’ Conference and National Golden Gavel Final on October 20. The event is one of the most important for young lawyers across the nation who are given the unique opportunity to impress their peers by demonstrating their advocacy skills peppered with comic genius. I had the joy of witnessing the NSW finals and if they are the standard, then the bar is set high indeed. Prepare to be entertained!
8 LSJ I ISSUE 38 I OCTOBER 2017
My involvement with the researchers at the Walter and Eliza Hall Institute of Medical Research has given me hope and purpose. Thanks to the wonderful research underway at the Institute, I am confident that ultimately other families will not experience the devastating loss of a loved one to cancer. I am proud to support Professor Tony Burgess and his team through the Shirley Cuff Cancer Research Foundation, in memory of my wife, Shirl. I appreciate the regular updates from the Institute and the opportunity to hear directly from the researchers about their progress. It is reassuring to know that my donations directly support leading researchers at the Walter and Eliza Hall Institute. A beacon of hope
SHARPEN YOUR PENCILS
– Research advocate and donor Jeff Cuff, pictured with cancer researcher Professor Tony Burgess
For more information please contact Ms Susanne Williamson, Head of Fundraising, on 9345 2962 or firstname.lastname@example.org www.wehi.edu.au
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lawsociety.com.au/diary DIARIES WILL BE DELIVERED FROM NOVEMBER 1
CANCER | IMMUNE DISORDERS | INFECTIOUS DISEASE
ISSUE 38 I OCTOBER 2017 I LSJ 9
Mailbag LETTERS TO THE EDITOR
ISSUE37 SEPTEMBER 2017
A brief nod A Wright decision – and the right decision. Edward Loong, Milsons Point An enduring suggestion My practical suggestion is that parliament simply renames the Marriage Act 1961 as the “Enduring Relationships Act 1961” and renames the definition “marriage” in section 5 as “enduring registered relationship” and changes the actual wording of the definition as desired by those wanting change. Every other reference would also be changed. Everyone would be happy. Those wanting change would have exactly what they want, and those wanting to retain the word “marriage” would be free to do so at least at the purely linguistic level. Those who want to use it for same- gender relationships would be able to continue to do so in the same manner. There would be no legislative imposition as to what individuals wanted the word to mean. By simply rebadging the existing legislation there would be no constitutional law issue. Easy solution. As a footnote to the above, section 43(1) (a) of the Family Law Act 1975 should be maintained in its current form (referring to marriage in the traditional understanding) as something to which the court continues to have regard (even though I am unfamiliar of such section ever being considered), and a new paragraph (aa) could
an offensive policy. In my discussions with female barristers, they often say how hard it was and is to break into the male dominated bar. However, upon further discussion they often admit that as women who have 20 years-plus experience at the bar or as solicitors, the imbalance will correct itself by operation of the free market (meritocracy). This will not occur overnight but will take time to be achieved. capitalism with the survival of the fitness (sic) determining who succeeds or fails. It is easy to blame someone else for having a difficult time establishing yourself in a profession. However, it does not help when there is a mysterious force that is activity (sic) opposing your success. I assure you it is performance that gets a barrister briefed, not “the old boys club”. I would not want a surgeon operating on my heart that obtain (sic) her specialty as a result of “gender based” awarding of a medical fellowship. Playing the “blame game” is self-destructive as it does not require self-reflection and critical review of your performance to determine if you are the problem rather than everyone else. The very nature of “equitable briefing” not only suggests there is bias but confirms it to all female barristers who are finding tough going at the bar. Perhaps they should talk to the male barristers who are doing it tough and/ It is my opinion that the bar is the last bastion of
be inserted about “enduring registered relationships” and something equally aspirational in that regard (as however persons wish to word it). In this way everyone would be kept happy. The idea would be to allow identical legislative coverage and nomenclature for all relationships (whilst reference to acknowledge the existence of the time immemorial understanding of the word), and avoiding any imposition on people to recognise the word “marriage” as extending to relationships of a different composition to what has previously been the situation. Quentin Schneider Themyth of patriarchy It was my understanding we lived in a meritocracy, which, regardless of race, creed, colour or religion (or lack thereof), gives everyone the same opportunity to succeed in their chosen field. The policy of “gender equitable” briefing of female barristers is in direct contradiction of that social consensus that has made Australia a first world country with opportunities for everyone to succeed (including immigrants). The implementation of a sexist policy, that I presume is based on the unscientific and factually unproven social theory of “the patriarchy” and “the oppression of women”, drives the social justice warriors in the Law Society to propose such permitting something of a forgotten footnote
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HAVINGABELLYLAUGH AUSTRALIANJUDGESONWHY HUMOUR ISESSENTIALONTHEBENCH
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LSJ09_Cover_spine_SeptemberFinal (V2).indd 1
24/8/17 7:22 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. E: email@example.com
CONGRATULATIONS! Jeffrey S Kerr has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 38 I OCTOBER 2017
LETTERS TO THE EDITOR
dominated by white faces and Caucasian names. No consideration of merit, independence of the judiciary or consideration of what it takes to be a good judge – the bench just requires more diversity of DNA. The two excellent letters addressing the many issues thrown up in the euthanasia debate were not successful in winning the lunch; presumably because they do not fit within the editor’s social or political framework. The Law Society of NSW Journal has been captured. Please give it back to the professionals who are looking for it to represent their professional interests and not embark on social engineering activist follies. Hadyn Oriti, Port Macquarie Don’t diss the judiciary Edward Loong’s award winning letter in last month’s journal certainly present’s a pessimistic picture of the fine judiciary that has served our state and country with great distinction. The judicial branch is in some way considered inadequate because it has comprised judiciary has always mirrored the society and communities it represents. Its composition will continue to change just as the make-up of our people continues to change. Thankfully our judiciary is a meritocracy and should always be so. At least Mr Loong did not go on to suggest that because “white faces/Caucasian names”. Thankfully our
or have failed before they blame the “patriarchy”. The concept of “outcome over opportunity” is a Neo Marxist’s doctrine that has failed everywhere it has be (sic) tried. Venezuela is a sad example of socialism in action. Setting quotas or having preferential treatment of a sector of society is a Marxist doctrine that has never worked anywhere it has be (sic) implemented. All this policy will do is allow a few female barrister to remain at the bar a few years more than they would have without being prop (sic) up by this initiative. For those of you who assume I must be a member of the “old boys club” you are sadly mistaken. I arrived in Sydney from the poor area of Scone NSW with no connections or family to assist me in building a legal practice. Hard work, long hours and sacrifice caused my success, not my genitals. I suggest to my female colleagues that more work, less complaining will achieve far more than blaming the mythical patriarchy. I do brief female barristers and re-brief them on their performance not their genitals. Same applies to males and transgender barristers. Brendan Manning Not a captive audience Edward Loong wins the editor’s lunch for four because he writes a letter hoping the judiciary will in future represent a balance of gender and ethnic backgrounds and not be
we have such and such a percentage of disabled, handicapped, transgender etc that the judiciary should in some way reflect these numbers in the appointment to judicial o ce. Paddy Curran Why themonkey
the US courts whereby PETA US is trying to establish that the copyright to a series of photos should be owned by the monkey who took those pictures. The monkey’s name is Naruto, and David Slater owns the camera that he used. Mr Slater has complained loudly about some alleged financial hardship resulting from the case, although that claim doesn’t seem accurate. He admitted publicly that his lawyer is working for free, and the lawsuit hasn’t yet
selfie is so important
Should a monkey own property, rather than be property? Australians are justifiably fascinated with the legal battle being waged in
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ISSUE 38 I OCTOBER 2017 I LSJ 11
Mailbag LETTERS TO THE EDITOR
interfered with his ability to make money from photographs. Every social justice movement in history has advanced by challenging the status quo. PETA US’ argument in court on behalf of Naruto, a free male crested macaque monkey, is making legal history – whatever the outcome. Taking a fresh look at the ways in which things have long been done and whether they still make sense isn’t just beneficial to society – it’s also a vital measure of human progress. Naruto intentionally picked up a photographer’s unattended camera in an Indonesian jungle, watched his reflection in the lens, and made various faces while continually pressing the shutter button and creating several photos, including the now-famous “monkey selfie,” in which he appears to be smiling for the camera. It is undisputed, even by the camera’s owner, that Naruto made the cause- change to his reflection in the camera lens, resulting in his impromptu photo shoot. The US Copyright Act and case law make clear that under these circumstances, the resulting photos are owned by whoever takes the photographs – not by the owner of the camera. There isn’t (and shouldn’t be) anything controversial about PETA US’ request that the court acknowledge Naruto’s ownership of the copyright to the photographs that he and-effect connection between pressing the shutter button and the
reform, slippery slopes and opening of the floodgates are unhelpful distractions. Well may an ideal aspiration be to “allow the natural course of our lives to unfold as our creator designed” as Paddy Curran suggests (August LSJ ), but quite a lot has changed since then. Medical science has achieved an extraordinary life-span extension. Dying has become a far longer, often agonising process managed with surgical intervention, Despite contraception, one child policies, and ongoing global conflict casualties, population has exploded to the point of threatening our survival. It is time we took responsibility for our impact on the planet and for the horrible pain and misery inflicted on people at the end of life as a direct result of the wonders of medical science. Most advanced countries have enacted voluntary euthanasia legislation long ago. Some countries even exit with dignity. Others are debating allowing children with a terminal illness to go early. We don’t subject our beloved domestic pets to suffer unduly when death comes knocking. Why can’t we afford the same human right to ourselves? Stephen Pratt, Coffs Harbour life-support systems, or palliative care. Quality of life is an early casualty. allow people who have “grown weary of life” to
country’s judicial officers. The implications of this social problem for the legal system are clear. I urge practitioners to learn more about East Timor’s legal development and to support CSO’s such as JSMP in monitoring and identifying problematic issues in the legal system. JSMP is the only source of court reporting in East Timor and has a long history of support of the rule of law even to the extent of challenging government interventions that appear to violate democratic principles. Recalling historical ties with the East Timorese people going back to WW2, our betrayal when Indonesia invaded and seized East Timorese sovereignty in 1975, the military intervention INTERFET in 1999 when East Timor gained independence, the chaos of 24 years of the suspension of the rule of law and countless rights violations, crimes against humanity and war crimes, it is worth considering ways in which the legal community can engage with, encourage and support our colleagues in East Timor. Perhaps an act of solidarity by our Judges with the East Timorese judges would be a good way to start. Warren L. Wright BA LLB Unhelpful distractions The Law Society ought to be supporting sensible voluntary euthanasia law reform. Clouding the basic issue with arguments about the nanny state, administrative law
undeniably took. The lawsuit is simply asking the court to allow PETA US to administer the copyright for the benefit of Naruto and his community of macaques and thereby help preserve the habitat of this critically endangered species. If this case succeeds, it will be the first time that a nonhuman animal has been declared the owner of property rather than a piece of property. It will also be the first time that a right beyond the basic entitlements to food, shelter, water, and veterinary care has been extended to a nonhuman animal. Granting those rights is simply the ethical thing to do. We’re at a point in history when we can no longer deny that nonhuman animals have an inherent worth – a value completely separate from their usefulness to humans. Jeffrey S Kerr Esq, General Counsel, PETA Foundation Assaults on judges I draw the profession’s attention to a worrying problem in our close neighbour, East Timor (Timor-Leste) – a spate of assaults on the judges. There have been several physical assaults, threats and intimidation of judges of late. The most recent occurred on 8 June 2017, when a judge from the Baucau District Court was assaulted. Civil society organisation the Judicial System Monitoring Program issued a press release condemning the State’s failure to provide efficacious security to the
12 LSJ I ISSUE 38 I OCTOBER 2017
ON THE SOCIALS
Re: “No laughingmatter”, feature September LSJ
“@LawSocietyNSW Journal is on point this month. I love the humour article.” Brooke Murphy, Twitter
“’Roddy Meagher was a little tubby therefore suitable for a cartoon’: Kirby. Kate, your words are great but I cannot get past the drawings!” Katie Walsh, Twitter
“Great article. Jokes in the medical consulting room are also sometimes very useful. Older patients often great at
non-o ensive humour.” Dr Daya Sharma, Twitter
“Gold.” Marcus Kelson, Twitter
Re: “Turnbull government orders first ever review of Family Law Act ”, news story in the Australian Financial Review on 20 August
“It’s probably due for a review and modernisation, but the problem is that the motivations to do that review right now are more than suspect … [sic]” Stephen Sandler, Facebook
“Here we go again. It may not have been reviewed, but it’s been tinkered with to death over the years. Currently seems to be working well.” Lou Steer, Facebook
“Please do not. Another thing to completely stu up.” Tracy Roscoe, Facebook
“Compulsory prenuptial agreements. Riiiiiiight.” Adam Parker, Facebook
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ENROL ONLINE: collaw.edu.au/alp / 1300 506 402 / email@example.com N E X T S E M E S T E R C OMM E N C E S 1 9 F E B RUA RY 2 0 1 8
ISSUE 38 I OCTOBER 2017 I LSJ 13
Computer algorithms tobe the ‘organisingprincipleof our era’
BY KATE ALLMAN
President of the NSWCourt of Appeal Margaret Beazley has described computer algorithms as the “silent workhorses” that could dictate the future of legal practice. “We barely notice [computer algorithms] and yet they lie at the heart of technological innovation and the development of artificial intelligence,” said Justice Beazley in a speech to about 100 young lawyers at the Law Society of NSW on 21 September. “They are, as certain commentators have suggested, the organising principle of our era.” Beazley stepped out of her usual judges’ robes for the night to deliver this prediction at the 2017 NSW Young Lawyers State of the Profession Address. The annual address has become a highlight on the NSW Young Lawyers calendar in recent years, and provides opportunity for young lawyers to hear from their patron on a hot topic or issue affecting the legal profession. Beazley, who is the patron representing NSW Young Lawyers for 2017, chose to focus on the opportunities and threats that technological change poses for lawyers. “Law, like all aspects of human life, is not immune from the influence of the algorithm and the disruption it brings about,” she said. Beazley highlighted the immense changes that technology was already bringing to the legal profession in NSW, referencing the development of online court systems, online dispute resolution, smart contracts, blockchain deals and automated contingency contracts based on “if-then” statements. She also spoke about the impact technology was having around the world by bringing international jurisdictions closer together and allowing Australian lawyers to take their practice overseas with greater fluidity. “Work can be done anywhere, at any time – all that is needed is a mobile phone,” said Beazley. “I’ve even heard rumours of law firms with competitions for the strangest place in which a solicitor has billed – the base camp of Kilimanjaro being one particularly notable entry.” Beazley was the first woman to be appointed President of the NSW Court of Appeal in 2013,
and is known for her work championing women in law and advocating for equal pay and opportunities. True to form, Beazley noted the role technology can play in encouraging diversity. She warned that tools enabling lawyers to work remotely were not being fully used, and that there was still a “gap between rhetoric and reality” as to how “working from home” was perceived among some lawyers. “This is underpinned by the perception, often realised subconsciously, that working from home is not as “real” or “legitimate” as work undertaken in the office,” said Beazley. “If this becomes the accepted perception, it will affect the significant advances that have been made in Australia towards creating more equal and diverse workplaces.” Beazley acknowleged that there also were downsides to technology and that constantly being connected and globally available could affect work/life balance. She warned employers to consider this pressure on lawyers’ wellbeing. She queried whether the French laws passed in January to prevent bosses contacting their employees outside of working hours “would be greeted in Australia – and what impact it would have on the Australian economy”. Beazley concluded by reminding the young audience that automation could not replace the “human factor” that is vital to a fair legal system. While she encouraged use of technology to make certain legal processes more efficient, Beazley said final decisions made by courts required human understanding of all the issues and individuals involved. “Legal issues arise out of human conduct and court decisions have an impact on the individuals who participate in them,” said Beazley. “Individuals need to feel that they are treated ‘fairly’ in their interaction with the legal system. “Fairness in this context is not only in the outcome of their case or resolution of their issue. It is the human need to be listened to.” See the full speech at facebook.com/NSWYoungLawyers
“Law, like all aspects of
human life, is not immune from the influence of the algorithm and the disruption it brings about . ” JUSTICE MARGARET BEAZLEY AO
14 LSJ I ISSUE 38 I OCTOBER 2017
NEWTHISMONTH LAWINFORM: CPDREIMAGINED The Law Society of NSW has launched LawInfom, a new online platform which makes managing your CPD easier. The one-stop shop makes managing your professional requirements easy. It includes an auto-tracking option for all your CPD points, including Specialist Accreditation, regardless of where they were completed and automatic reminders and notifications about your courses. The new system was designed with portability in mind, which means you can access the site and courses when and where you want. It also includes a 30 per cent discount on all courses (other than the Practice Management Course) for members. “We listened to what our members wanted and needed and designed
the new platform around these requirements,” says Sharmaine Gewohn, Head of Professional
Development. “We want to make it simple and easy, especially for people who are short of time.” Find out more at lawinform.com.au
RURAL ISSUES CONFERENCE
Gail Furness Senior Counsel assisting the Royal Commission into Institutional Responses to Child Sexual Abuse
Solicitors will gather in Sydney on 27 October for the annual Rural Issues Conference at the Primus Hotel in Pitt St, Sydney. Jeremy Cox, NSW Registrar General, Department of Finance, Services and Innovation, will speak on the new regulatory changes and give an overview of e-conveyancing. Judge Gordon Lerve of the NSW District Court will talk about issues of rural crime. Book now at lawsociety.com.au/RIC
It was plain that hearings were needed to examine the responses of faith-based institutions, given that, as at the end of 2016, 60 per cent of survivors attending a private session reported abuse in those institutions.
Opening address to the Royal Commission 50th public hearing, February 2017
ISSUE 38 I OCTOBER 2017 I LSJ 15
MARK GARDINER TEDDINGTON LEGAL
six minutes with
Teddington Legal is not your average law firm. The main office is an old warehouse space in Surry Hills in Sydney, with bright feature walls, glass, computer screens, an in-house miniature poodle named Freddo, and certainly no dress code. Mark Gardiner opened the firm in 2009, after a wide-ranging career that included working as a prosecutor for the Victorian police force, as an in-house lawyer for Coles and the Commonwealth Bank, and an investigator in the Victorian Casino and Gaming Authority. He spoke to KATE ALLMAN about the future of law firms.
How is Teddington Legal different to other law firms?
How do you charge for your services? We do a lot of work on a fixed-fee basis and the advantage is there’s no shock for the client upon completion of a job. Nowadays clients can jump online and look at their legal issues, they can do legal research and even generate legal documents online for a fraction of the cost. Our approach recognises that clients are informed and gives power and choice I guess it’s our approach to work. We don’t have a dress code, we don’t have fixed hours, we have an open, accessible presence in the office. I bring my dog Freddo into the office to put everyone at ease. Clients are always pleased when they come into meetings and see Freddo. How do you think Big Law firms need to change? I’m absolutely convinced the legal profession has to adapt its method and practices. The sustainability of a traditional law firm in a pyramid structure with lots of juniors at the base and relatively fewer partners at the top has to change. Sophisticated clients simply aren’t going to wear the hourly rates that they wore historically. Law firms need to adapt. back to clients. Why the dog?
We’re an entirely cloud-based firm, which means all our documents are stored in the cloud and accessible from anywhere in the world with an internet connection. The advantage is lawyers can work from home, from another office or they can have a physical presence in our Surry Hills office. They still gain the advantages of branding marketing and admin support that you get through a law firm. We also have a flatter structure with a closer ratio of partners to lawyers than larger firms, because we want to empower our junior lawyers. There’s no carrot of partnership being dangled out front, requiring them to work enormous numbers of hours in anticipation of becoming a partner one day. Howdo you share or distributework in thismodel? I think of our firm as a barristers’ chambers approach. Somebody might call the firm needing legal advice or support, and then we will allocate it to the most appropriate lawyer. Our lawyers provide legal advice to clients under the Teddington banner, yet each lawyer operates semi-autonomously and earns most of the fees from their own projects.
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BY PAULMONAGHAN , SENIOR ETHICS SOLICITOR
Q When do I have to reveal confidential information that a child may be at risk in a family lawmatter? A This enquiry highlights the dilemma many practitioners face each day regarding the ethical issue of disclosure during family law proceedings, when an issue arises affecting a child that is subject to those proceedings. It is important for practitioners to note their duties to the court and client are in addition to consideration that the welfare of a child “… is the paramount concern in family law proceedings”. Both legislation and the solicitors’ rules contain emphasis on these duties and the prudent practitioner will constantly review these. A checklist for each family law file may include the following obligations regarding duties, confidentiality and disclosure by the practitioner: • Where information may need to be disclosed to ensure compliance with the Family law Act for “… protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence …” and in accordance with reference to the solicitors’ rules on confidentiality. • Advising and providing guidance to the client should include “… informing the (client) that they should regard the best interests of the child as the paramount consideration; and … encourage the client to act on the basis ... that the child’s best interests are best met”. • Professional obligations of confidentiality pursuant to solicitors’ rule 9 that address disclosure of confidential information “where the solicitor is permitted or is compelled by law to disclose … and where ... disclosure of the information is for the purpose of preventing imminent serious physical harm to the client or to another person”. Ethics issues in family law often are accompanied by a setting of intense conflict and emotional upheaval, that is why there is clear guidance on issues of disclosure in the Family Law Act and the solicitors’ conduct rules. These provide a strong foundation for the ethical principles the practitioner must adhere to.
We specialise in agency appearances for all Sydney CBD courts and tribunals To obtain our services or for more information call (02) 9239 0555 or visit www.sydneymentions.com.au No time for city court appearances? “Don’t mention it...we will.”
Suite 501, Level 5, 265 Castlereagh St, Sydney NSW 2000 DX 1084 Sydney
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GEORGIALENNON Appointed to Solicitor Elliot Tuthill
ALEXANDRA SARMED Opened a new practice as Partner Kingston Fox Lawyers
Promoted to Senior Associate, Real Estate & Construction DibbsBarker
ALICIAELLIOTT Promoted to Director KD Holmes Solicitors
CLAREKERLEY Promoted to Senior Associate, People & Workplace DibbsBarker
ERINHOILE Opened a new practice as Partner Kingston Fox Lawyers
PAULROGERSON Promoted to General Counsel NRMA
VIDDRAGOMIROVIC Promoted to Special Counsel, Motor Vehicle Insurance Curwoods Lawyers
DARRENGARDNER Joined as an Executive Lawyer, Workplace Relations Bartier Perry
ANDREWSAXTON Joined as Principal, Health and Insurance Meridian Lawyers
MARKGLYNN Joined as a Senior Associate, Building &
KURTTOPPER Promoted to Partner Stacks Heard McEwan, Wollongong
Construction Bartier Perry
STEPHENETKIND Joined as Special Counsel Salvos Legal
DENISHALL Promoted to Director Madison Marcus Law Firm
KAYTELEWIS Opened a new practice as Principal Voice Lawyers
VICKI KELLY Promoted to Partner, Family Law McLachlan Thorpe Partners
DANIELRAPPOPORT Promoted to Senior Associate Gavin Parsons and Associates
ANGELA MARTIGNAGO Promoted to Special Counsel, Motor Vehicle Insurance Curwoods Lawyers
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Stephen Lancken MEDIATOR BA LLB ACCREDITED SPECIALIST COMMERCIAL LITIGATION & MEDIATION
WELLBEING WALKINGFORWELLNESS NSW lawyers are invited to join with thousands of people who will be walking in support of mental health as part of the 2017 Wellness Walk and Festival on Sunday, 15 October. Bob Goldie, the principal of Goldie Corporate Counsel, is a driving force behind this year’s event. “Mental illness is a big issue today, which is why it is important to talk about it and de-stigmatise it,” Goldie says. Goldie is a board member of One Door Mental Health, a host of the event. The walk is designed to raise awareness and encourage community-wide acceptance of serious mental health issues. The hosts see the event as a great opportunity for law firms and other legal organisations as well as individuals to show their support and leadership towards de-stigmatising mental health issues across the profession and encouraging people to talk about mental health. “We shouldn’t underestimate the impact the involvement by lawyers can have to the community,” Goldie says. The Sydney event, now in its fifth year, also helps fund work One Door Mental Health does across NSW and the ACT. The 2km and 5.9 km walks start and finish at Government House in the Royal Botanic Gardens; participants in the longer walk will get to the enjoy strolling over the Harbour Bridge. A Schizophrenia Fellowship of NSW, was created to give a voice to those with severe mental illness. The new name reflects the organisation’s work with people with mental illnesses other than schizophrenia and to make services easier to access under the new National Disability Insurance Scheme (NDIS). Goldie became familiar with the challenges of schizophrenia through his sister, who lives with the illness. As a volunteer member of One Door’s board, his legal background has come in handy in recent times, including the organisation’s move from being an incorporated association to a company limited by guarantee. Another big challenge has been addressing a radically- changed funding model. Until now, the disability service sector was mainly funded by governmental block funding. However, the new NDIS system has turned the funding model upside down and introduced a new level of competition. “The NDIS has made a tectonic change to disability funding in Australia. Because money is now allotted to the disability consumer, all providers are now in a competitive environment for funds,” Goldie says. “A lot of people working in this area were driven by passion, rather than being motivated by market-driven forces.” Visit wellnesswalk.org.au for more information and to sign up. family-friendly wellness festival follows the walks. One Door Mental Health, previously known as the
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CONFERENCE BIGSUPPORTFOR GOVERNMENTSOLICITORS
BY MATTHEW PEARCE
PHOTOGRAPHY : JASON McCORMACK
Scores of government solicitors gathered to discuss key issues at the Law Society’s Government Solicitors Conference in Sydney on 5 September.
From left: Chair of the Government Solicitors Committee Doug Humphreys, Law Society President Pauline Wright, and Juliana Crofts, who was highly commended for her work at Legal Aid, Nayomi Senanayake, from the Department of Justice, who won the John Hennessy Legal Scholarship, and Bruce Cantrill, of the Crown Solicitors Office, who won the Michelle Crowther Excellence Award.
Greg Ross, of Eakin McCaffery Cox Lawyers, introduced Pamela Hennessy who presented Nayomi Senanayake, from the Department of Justice NSW , with the 2017 John Hennessy Legal Scholarship. Annmarie Lumsden, Executive Director of Legal Aid NSW, presented Bruce Cantrill of the Crown Solicitors Office with the Michelle Crowther Excellence Award as well as a Highly Commended award to Juliana Crofts, of Legal Aid. Doug Humphreys OAM and Chair of the Government Solicitors Committee welcomed the delegates to the conference. Philip Ruddock, a life member of the Law Society and a solicitor for more than 50 years, gave the keynote address, explaining the importance on accepting advice, understanding the risks of the advice and finding the way forward in respect of a legal issue the advice was sought on. He emphasised the need for integrity in the legal system when acting on advice so as to serve the needs of all Australians
and gave as an example issues relating to immigration when he was a Federal Minister. He spoke about his past role as Special Envoy promoting Australian membership on the UN Human Rights Council, emphasising the need for parliamentary democracy and rule of law and issues relating to domestic violence against women and child protection and the important role of first nation’s people. The first session of the conference considered current issues in access to information and privacy. Peter Leonard, of Data Synergies, facilitated the discussion with Elizabeth Tydd, NSW Information and Privacy Commissioner, and John McDonnell, Assistant Crown Solicitor of the Crown Solicitors. Tydd discussed Australia’s role in the International Open Government Partnership Working Group Review in the development of an open government action plan and providing analysis for understanding the use of information access rights and the release rates by Government and the effect on the current legislation under the GIPA.
McDonnell discussed the issue of what is personal information and whether such personal information held by a Government Agency is “reasonably ascertainable” in respect of GIPA. There was a comprehensive discussion of the case law where, at the present moment, the definition of personal information and whether it can be reasonably ascertainable continues to evolve. Barrister Jason Dowing detailed the psychiatric evidence which arose in respect of the Lindt Siege Inquest and in particular the conduct of Monis prior to and during the siege. Dowing also commented on the regime of orders including public interest immunity and disclosure/protective orders applied in the Inquest to protect sensitive and personal information. He discussed the mental health history of Monis and the severity of his personality disorder. The psychiatric evidence presented at the Inquest to the State Coroner found that Monis had a combination of personality disorders and had entered the café with no real concern as to the outcome of such a
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