ISSUE 49 OCTOBER 2018
Speakingmy language The multilingual lawyers proving the value of cultural diversity Against the tide The Sydney lawyer shaping refugee policy at the UNHCR Outing the introverts Why understanding your quieter team members holds great benefits A casual conundrum Substance over form prevails in employment relationships
Onthe bright side Five young lawyers boldly discuss living with mental illness
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28 In focus
Lawyer Dominique Doyle speaks to Melissa Coade about taking on the earth as a client
Jane Southward meets Australian lawyer Ellen Hansen in Geneva to discuss her work on a new deal for refugees
Jane Southward meets a lawyer living with Type 1 diabetes and discovers the key to resilience
30 Better days ahead
48 A day in the life
Five lawyers under 35 open up to Jane Southward about their experiences of mental illness and reveal why it’s time to reduce the stigma
On the eve of World Mental Health Day, Kate Allman uncovers what the best exercises are for improving your mental health
The CEO of mental health organisation Batyr reveals the value of his legal training in not-for-profit work
36 Talking the talk
Melissa Coade examines whether multilingualism is an advantage in the modern legal market
Kate Allman meets 85-year-old lawyer and runner Frank Dearn for a jog around the block
Dream a little with our city guide on the Swiss city of Lausanne and dive into a luxury palace in Montreux on Lake Geneva
ISSUE 49 I OCTOBER 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career coach 46 Mindset 50 Doing business 64 Books 66 The case that changedme
84 Personal property Birthing a legal lacuna: the extraction and use of sperm without consent 86 Elder law
The latest developments in advocacy and law reform
The Full Federal Court settles another casual conundrum 75 Practice and procedure Dissecting the dilemma of the District Court’s commercial jurisdiction 78 Environmental law Rights of nature laws: an emerging movement changing the legal status of nature 80 Redress National redress scheme and redress payments for child sexual abuse survivors
Mixing family and property: the risks of lending to the kids
88 Criminal law
An outline of the new laws targeting child sexual abuse
Estate planning traps: binding death benefit nominations and enduring powers of attorney
91 Case notes
A wrap-up and analysis of the latest key judgments – HCA, FCA, Family, Criminal, and Wills & Estates
77 Library additions 106 Avid for scandal
4 LSJ I ISSUE 49 I OCTOBER 2018
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ISSUE 42 I MARCH 2018 I LSJ 49 ISSUE 46 JULY www.practiceconnexions.com.au
A word from the editor
October is Mental Health Month in NSW, which is why our cover story is all about mental illness. We have been looking to tackle this topic for some time, and it was appropriate to run the story this month. The result is a compilation of five young lawyers discussing their experiences with mental ill health. Hearteningly, each has found success, balance and happiness in spite of their challenges.
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist
The fact that all the lawyers featured are under 35 is not by design. Associate Editor Jane Southward reached out to no fewer than 40 organisations and lawyers of all ages when researching this powerful story. Tellingly, the five lawyers who eventually went on record were all under 35. So what does this say about the legal profession? A crude analysis would suggest there is a generational shift in our willingness to admit and accept that poor mental health affects so many of us at some point – and that it’s perfectly okay. It does not mean the end of careers. It does not equal ostracism. It does not indicate weakness. It simply is a real part of being a lawyer and, more importantly, of being human. Thankfully, the younger generation seems quite at ease with this reality – certainly more so than their elders. Perhaps this is where we need to focus our efforts around breaking down stigma. So go on, young lawyers, take the lead on this and start a conversation about mental health in your firm. You never know who you might help. Claire Chaffey
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty Editorial enquiries 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 © 2018 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
JANE SOUTHWARD Cover story p30 Our Associate Editor has been a journalist for 30 years, working at Fairfax in Sydney and New York. She is also a sessional academic, teaching media at the University of NSW. In our cover story, five lawyers open up about how they deal with mental health issues.
MELISSA COADE Talking the talk p36 Melissa is a lawyer and LSJ’ s Senior Journalist. As international firms meets lawyers using their multilingual skills in the increasingly global legal market – and finds it proves a perfect recipe for career success. look to build their talent pools, she
MICHELLE CASTLE District Court p74 Michelle is a barrister at 13th Floor, St James Hall Chambers. She takes on the hot topic of the District Court’s commercial jurisdiction, which has been thrown into doubt by recent decisions.
MICHELLE MALONEY Environmental p78 Michelle is a lawyer and co-founder of the Australian Earth Laws Alliance. She writes about recent developments in Rights of Nature laws, an emerging international legal movement gaining interest in Australia.
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ISSUE49 OCTOBER 2018
Speakingmy language Themultilingual lawyersproving the valueofculturaldiversity Againstthetide TheSydney lawyer shaping refugeepolicyat theUNHCR Outingthe introverts Whyunderstanding yourquieter teammembersholdsgreatbenefits Acasualconundrum Substanceover formprevails inemployment relationships
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 do not accept unsolicited articles.
Onthe bright side Fiveyoung lawyersboldlydiscuss livingwithmental illness
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6 LSJ I ISSUE 49 I OCTOBER 2018
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ISSUE 49 I OCTOBER 2018 I LSJ 7
O ne of the hot topics at the Law Society’s recent Future of Law and Innovation in the Profession (FLIP) Conference was the issue of artificial intelligence (AI) in legal practice. The message from the experts was loud and clear: when it comes to AI, we need to get over it and get on with it because the future is now. The rise of automated systems and software products is reshaping the way the legal profession works. This means that, as a profession, we need to view AI as an opportunity rather than a threat to our existence. This sentiment was backed up by new research on AI and the legal profession flowing from the Law Society’s
five-year collaboration with the University of NSW, known as FLIP Stream. Each year, FLIP Stream is undertaking research into a specified topic that will then be disseminated through the academy, the profession and society. It’s research that will help shape the blueprint for the 21st Century practitioner’s engagement with the 21st Century profession. As FLIP Stream Director Professor Michael Legg and researcher Dr Felicity Bell told the FLIP Conference, AI offers a set of tools which allow lawyers to be more efficient and effective in their work. Rather than replace an entire job, AI can complement human activities and, in turn, make our skills more valuable. However, AI will impact different parts of the profession in different ways. For example, lawyers working on civil litigation matters involving voluminous discovery will need to understand technology-assisted review of documents, while those who practise in wills and estates must know about the options for automated drafting. As Professor Legg explained, while legal roles will undoubtedly change, AI and other technologies will be able to assist lawyers and society more generally. Just as technology has made many dangerous occupations safer, technology can minimise the less intellectually stimulating or less fulfilling functions in legal practice. It can also reduce the cost of legal services and increase access to justice for those we serve. The FLIP Stream research is just one of many initiatives the Law Society is undertaking to help you stay ahead of the game in understanding how innovation and technology are affecting the way you practise now and in the future.
Doug Humphreys OAM
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ISSUE 42 I MARCH 2018 I LSJ 49
ISSUE48 SEPTEMBER 2018
Doing away with the profession Apropos the
the mental health profession for having a mental health problem. I can’t see someone’s boss in a legal practice being quite so empathetic. I look forward to future episodes. I assume bullying is high on your subject list. Ross Duncan Manners maketh theman Kelley Dewey’s letter (August LSJ , Mailbag) reminded me of an occasion when I attended an ICAC hearing in about 2014. From memory, a former premier of NSW was about to take the witness box. The numerous rows of bar tables which occupied most of the hearing room were full to capacity. A senior counsel (not on the record) arrived late, and asked a junior barrister sitting at the end of the last table nearest the entrance to vacate his seat for him. When junior counsel explained he was appearing that day, this pompous individual then shouted in so many words, “Don’t you know who I am? Weren’t you taught the rules of seniority?” Moribus facit hominen – manners maketh the man. Edward Loong Youmake your own bed Oh dear, here we go again. unisex world, that there is no di erence between male and female lawyers, that we provide the same commitment to work (male and female) … And then I get my latest edition of the Woman’s Weekly aka The Law Society Journal replete with 14 of the first 16 articles written by the fairer sex (I suppose this is to be expected when the sta of the magazine is dominated by the lovelier sex). Come on Dominic Rolfe, put up your hand higher. The loveliest of mothers with her beautiful child adorns the cover with her story within its pages. How the firm she I am trying to adopt that we professionally live in a
works for makes allowances for her limited time. Well done to them. But how does a woman work in her profession when she splits her time between raising young children and working as a lawyer 50 to 60 hours a week? Not possible – assuming, of course, hubby works the same hours – unless you have a full-time nanny. One cannot own/run a practice working nine to five. No, not until the children get much older and are able to look after themselves, or other family members pitch in, or, as I have said, you hire a nanny if is it financially possible. If that is what you want, and the family is supportive, go do it gals – but life will continue to be hectic and di cult. I envy you not. As an aside, I have four daughters and one son; not one wisely became a lawyer. I asked one of them one day why, and she replied, “You worked too hard, dad, even on Saturdays.” Only recently was I game enough to admit to her that I only worked Saturdays to get away from them. Stephen Cutler The boss is always right Your article (September LSJ , Careers, “Dealing with a bad boss”) reminded me of this note one of my secretaries once showed me. Rule one: the boss is always right. Rule two: if the boss is wrong, rule one applies. Actually, she was very understanding … of the rules. Edward Loong You’ve gotta love this lawyer ... Part of rebuilding New Orleans caused residents often to be challenged with the task of tracing home titles back potentially hundreds of years. With a community rich with history stretching back over two centuries, houses have been passed along through generations of family, sometimes making it quite di cult to establish ownership.
profoundly sensible proposal by Mr Jonathan Lowe (September LSJ , p 106) masquerading as comedy, I took the liberty of undertaking a survey of all police within Australia. The result was an almost unanimous vote in favour of the immediate implementation of the proposal. (The only charges or who suspected that they might do so in the future.) While I have not had time to do so, I suspect I would obtain a similar result if I surveyed all public servants, all politicians, and all local government o cials. O.R Butler O the Record o the hook Congratulations for the O the Record podcast initiative. I listened to episode one at lunch during a run (was patting myself that it was a run and not a liquid lunch) and was so impressed with everything about it. The production was seamless and the content was really interesting and thought provoking. Also, I am really glad to see such an important topic being brought to the surface. Looking forward to First booze, next bullying I just listened to your podcast on alcohol ( O the Record , episode one). Great job! Refreshing to see the Law Society prepared to examine the profession’s “dark side”, as you put it. I don’t think it’s that surprising that lawyers are reluctant to out themselves as having a drinking problem. Mental health professionals are more likely to, since it would be odd for them to be ostracised/victimised by exceptions were police currently facing criminal more episodes! Talitha Fishburn
Grinningandbaring it Whycurrent lawsaround sexting arecriminalising today’s youth Banishingburnout Doeshitting rockbottommean theendof yourbrilliantcareer? Reflectingonchange JusticeVirginiaBellon the battle forwomen’s legal status Criminal lawreforms Ananalysisof sweepingchanges to sentencingandcommittal laws Modern-daybagsearch How fardoesprivacyextendwhen itcomes tomobilephonesatwork? Childsexualabuseredress Why thenewgovernment scheme willpresentachallenge for lawyers Allaboardthetechtrain Why there isnoexcuse for small firms failing toembrace technology Savingcommunity justice Attorney-GeneralMarkSpeakman onnew funding for strugglingCLCs
Thesink-or-swim culturehurtingour junior lawyers
Shatteringthe illusion Themessy truthbehindhigh-functioningalcoholics in law
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23/8/18 6:30 pm
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10 LSJ I ISSUE 49 I OCTOBER 2018
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A New Orleans lawyer sought an FHA loan for a client. He was told the loan would be granted if he could prove satisfactory title to a parcel of property being o ered as collateral. The title to the property dated back to 1803, which took the lawyer three months to track down. After sending the information to the FHA, he received the following reply: “Upon review of your letter adjoining your client’s loan application, we note that the request is supported by an Abstract of Title. While we compliment the able manner in which you have prepared and presented the application, we must point out that you have only cleared title to the proposed collateral property back to 1803. Before final approval can be accorded, it will be necessary to clear the title back to its origin.” Annoyed, the lawyer responded as follows: “Your letter regarding title in Case No.189156 has been received. I note that you wish to have title extended further than the 206 years covered by the present application. I was unaware that any educated person in this country, particularly those working in the property area, would not know that Louisiana was purchased by the United States from France in 1803, the year of origin identified in our application. For the edification of uninformed FHA bureaucrats, the title to the land prior to U.S. ownership was obtained from France, which had acquired it by Right of Conquest from Spain. The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Queen Isabella. The good Queen Isabella, being a pious woman and almost as careful about titles as the FHA, took the
precaution of securing the blessing of the Pope before she sold her jewels to finance Columbus’s expedition. Now the Pope, as I’m sure you may know, is the emissary of Jesus Christ, the Son of God, and God, it is commonly accepted, created this world. Therefore, I believe it is safe to presume that God also made that part of the world called Louisiana. God, therefore, would be the owner of origin and His origins date back to before the beginning of time, the world as we know it, and the FHA. I hope you find God’s original claim to be satisfactory. Now, may we have our damn loan?” The loan was immediately approved. O.R Butler Litigation can work Associate Professor Anna Cody says (“The case that changed me” September LSJ ), “I took over … the case of Joy Williams v State of New South Wales . Her case was one of the first in Australia to challenge the horrific practice of separating Aboriginal children from their families because they were lighter coloured. The aim of this policy was genocidal: to destroy Aboriginal families and communities by removing children and bringing them up in ‘white’ society. This practice and its e ects became known as ‘the Stolen Generation’ “. Later, Assoc. Prof. Cody writes, “She was also deeply harmed by what she had gone through, removed from her mother as a baby ...” and “Her life could have taken a very di erent path if she hadn’t been taken from her mother when she was just four weeks old.” Law Society members may be interested to read a brief extract from the judgment in that case at paragraph 27: “The primary submission made by Mr Hutley SC for the plainti [that is, Joy Williams], was that there was
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no unlawful removal and detention or taking of the
ISSUE 49 I OCTOBER 2018 I LSJ 11
plainti at any time and that there was no factual removal of the plainti in the sense of her having been ‘stolen’. If there was a removal, or taking it was pursuant to the mother’s request for the Board to do so. She applied or asked the Board to take control of the plainti and the Board acceded to her application.” At paragraph  Abadee J adds, “I further find as a fact that the plainti ’s mother at no time between 1942 and 1960 made application to the AWB or, otherwise sought to have the plainti released from the AWB’s control, or sought her restoration to her care within the meaning of s 11D(1)(h) of the Act, nor was any discharge of the plainti sought at any time pursuant to s 11D(1)(i) of the Act.” In light of this, if Assoc. Prof. Cody says her client was “removed” from her mother as a baby, I would have expected the article to be clearer as to the sense in which she meant it. Assoc Prof Cody says, “… the judge preferred the evidence of the now What his Honour said at paragraph 834 was, “Mrs Reid, who was Matron during the last years of the plainti ’s stay at Lutanda, and whose husband was Superintendent from 1959 onwards said (at para 6 of her a davit 13 November 1997): “Joy was not treated di erently from other children at Lutanda. If anything Joy was favoured over the other children at Lutanda and I can recall other children complaining about this. At one time, not long before Joy eventually left Lutanda, my husband and I arranged for Joy to learn the piano because we thought she had musical talent. Of course the home could not a ord to allow all the children to take music lessons, so my husband paid for Joy’s lessons out of his own pocket. He thought that Joy had a nice voice and she should be encouraged ...”. Assoc. Prof. Cody says that losing this case caused “deep disillusionment about litigation as a means of righting a wrong”. In a long and careful judgment, his Honour gave his reasons for finding that the plainti had not established negligence by the State. Litigation may not be perfect, but it is often e ective as a forensic process for determining facts based on evidence in a calm and objective setting. Ken Harkness, K M Harkness & Co Sydney grown other children about the treatment of Joy at Lutanda.”
“Can’t wait to listen and this morning’s event was fantastic. Well done.” Michaela Whitbourn, Twitter “I listened to it in my lunch break just then. Fabulous first episode. I thought it was thought-provoking and choice of guests were great. I really liked the music choices as well. Look forward to future episodes.” Rachel Worsley, LinkedIn
“Great initiative! Well done.” Cullen P. Haynes – LinkedIn
“Excellent podcast on a very important issue. Looking forward to the next episode. Thank you!” Marie-lyse Eliatamby
“What a woman!” Evette Campbell, Facebook
“Put a fork in me, I’m done.” Steph Gardiner, Facebook
“Great to see some of @gtlaw’s leading women feature in this celebratory video which marks 100 years since women obtained the right to practise law.” Courtney Robertson, Twitter “I am thrilled to have been involved in this terrific short film marking 100 years of “Legal Status”! Juliana Warner, LinkedIn
“Wow! A writing masterclass for judges to be delivered by literary maestro Helen Garner.” Kate McClymont, Twitter “What a great idea. To quote @Hon MichaelKirby: ‘It is the noble objective of making the law speak with a clearer voice to the people who are bound by the law’. #auslaw” By Lawyers, Twitter
12 LSJ I ISSUE 49 I OCTOBER 2018
Re: One toomany, September cover story “Thank you, Kate, for bringing this very important issue to the table and starting this conversation. These are very concerning statistics and sadly to a lot of us lawyers is real life. The pressure and demands of this profession can certainly take its toll and what we need to realise is that we are all in it together. There is no need to su er in silence feeling like you're the only one who feels constant anxiety and/or depression and that your colleague next to you has it all figured out and you don't. Learning strategies such as mindfulness and increasing your emotional intelligence can be so e ective for stress management and building resilience so you can start to find true fulfilment in this profession.” Lara Wentworth, LinkedIn
“How sad, it used to be journalists …” Greg Bearup, Twitter
“We deal with other people’s problems, the same problems that rank highest on stressor scales. Any wonder?” Chris Jowett, Facebook
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ISSUE 49 I OCTOBER 2018 I LSJ 13
THE COURTS Senate committee extends deadline for family law submissions Lawyers and other “interested parties” have been given two more months to make submissions to an inquiry into a proposed merger of Australia’s Federal Circuit Court with the Family Court. The controversial merger was suggested in August, with the federal government allowing just three weeks to make submissions on a bill that was more than 500 pages long. But after backlash from the legal community, including the Law Society of NSW, a senate motion was passed in September that will push the closing date for submissions to 23 November, effectively tripling the amount of time for the committee to receive submissions. Law Society of NSW president Doug Humphreys had previously slammed the short submission period. “This is the most significant reform of family law in well in excess of 10 years. You don’t do this sort of thing on the run,” Humphreys told The Sydney Morning Herald on 27 August. Humphreys had labelled the short three-week window a “sham consultation process” and urged the government to offer more time for lawyers to make meaningful submissions on the changes. Law Council of Australia (LCA) President Morry Bailes welcomed the extended deadline. He said the LCA had been given just four business days for a small team of representatives to view the confidential exposure bill of about 530 pages. “The [former] government timetable allowed for barely a month for submissions to be made on the most significant changes to the family court system in the last 40 years,” Bailes said. “The Senate has sent a powerful message to government that policy must come before politics when dealing with Australia’s family court system and the vulnerable people caught up in it.” The new deadline will allow the committee to hold hearings across Australian cities and regions, in the months after 23 November and before the scheduled date to report findings to Parliament in April next year.
AWARDS DPP lawyer takes top prize at Government Solicitors Conference Solicitor Sarah Love from the NSWDirector of Public Prosecutions was awarded the 2018 John Hennessy Research Scholarship at the Government Solicitors conference in Sydney on 4 September. Love, who graduated with a Master of Forensic Mental Health from UNSW last year, plans to use the scholarship funds to research drug courts in NSW, Nashville, Tennessee and Cape Cod, and to investigate the case for a regional drug court in Lismore, NSW. “Having worked as a prosecuting solicitor in Sydney and Lismore, I have seen first hand community members come through the revolving door of the conventional criminal justice system,” Love said. “Problem-solving courts, their use and implementation have been demonstrated as being beneficial in making offenders accountable for their actions and playing an active role in their rehabilitation while reducing recidivism and assisting people to live reformed lives.” Jeffrey Gabriel was awarded the Michelle Crowther PSM Excellence in Government Solicitors Award for his work as Director of the Solutions Group at the Workers Compensation Independent Review Office (WIRO). Jackie Finlay, a solicitor at Legal Aid NSW, was highly commended for her work in the development of national approaches to service delivery in the National Disability and Insurance Scheme. The conference began with an opening address from Peter Hall QC, Chief Commissioner of the NSW Independent Commission Against Corruption. The 200 attendees at the conference sponsored by Law In Order and Holding Redlich also heard an update on the National Redress Scheme and the delivery of apologies to victims of historical child abuse. Justice Robertson Wright of NCAT, Acting Justice Ronald Sackville AC of the Court of Appeal of the NSW Supreme Court, barrister Mark Robinson and solicitor Carl Freer debated the work of tribunals. The conference then group split into four sessions on a range of topics, including blockchain and the top 10 changes that affect NSW government contracts. From left: Law Society Government Lawyers Segment Manager Ann-Marie Boumerhe, solicitors Jackie Finlay, Jeffrey Gabriel, Sarah Love and Law Society policy lawyer Nova Justen-Hoven.
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NEWTHISMONTH Video celebrates the history of women in law A new video has been released as part of the First 100 Years Initiative, supported by Gilbert + Tobin and the Law Society of NSW. The viral video offers a variety of perspectives from lawyers and law students about women in law and has already been viewed more than 3,000 times on Law Society social media channels. Watch it at first100years.com.au Third Thought Leadership session for 2018 The NSW prison population is at its highest level in history. In the 2016- 2017 financial year, the net operating costs required to house inmates in NSW prisons totalled more than $3 billion. Join us for the third instalment of our Thought Leadership series for 2018, in which we unpack issues surrounding this growing prison population and discuss strategies such as justice reinvestment to curb rising prisoner numbers. lawsociety.com.au/thoughtleadership Register now for the Rural Issues Conference Earn up to 6.5 CPD points at this full-day conference on 26 October at Parliament House Sydney. Speakers include NSW Land and Water Commissioner Jock Laurie and Mick Keogh from the Australian Competition and Consumer Commission. Attendees also can partake in two free workshops at the Law Society of NSW on the previous day. To find out more, go to the calendar at lawinform.com.au
Michael Legg UNSW PROFESSOR OF LAW
The future lawyer will combine legal knowledge with sound judgment, creativity, emotional intelligence, tech savvy, numeracy and a command of their ethical responsibilities.
From “The AI-enhanced lawyer” presentation at the FLIP Conference 14 September.
ISSUE 49 I OCTOBER 2018 I LSJ 15
DIMITY KINGSFORD SMITH
PROFESSOR OF LAW AT UNSW
Dimity Kingsford Smith is the Director of the Centre for Law, Markets and Regulation at UNSW, and lectures on corporate and financial regulatory topics in law. Kingsford Smith joined UNSW in 2005, having held academic appointments in Australia and the UK at the University of Sydney, Monash University, the University College London, London School of Economics and University of Warwick. Her research is focused on directors’ duties and their moral obligations to shareholders – somewhat grey areas of law that have been catapulted into media spotlight by recent Royal Commission hearings. Kingsford Smith will be presenting a paper on directors’ moral duties at the Supreme Court Conference in November. She speaks to KATE ALLMAN .
bear it, products that have very little or no value, services that are paid for but not actually delivered or properly or fully delivered, poor dispute resolution. I was incredulous at the scope and depth of the misconduct. Do you think there will be any substantial change? I think there has to be. Politically, it’s now impossible to get the lid back down on the genie that has escaped from the box. I think we will see huge tightening up in corporate governance. There will need to be some law reform – with patches of concentration. For example, a patch on reforming and extending the regulation of superannuation trustees. Especially those in the retail sector, who are part of vertically integrated financial institutions and have a lot of conflicts of interest. Changing what seems to be an endemic culture in banks will be difficult. How can CEOs who are serious about improving their practices and reputation go about that? I think you have to recruit differently, you have to train them differently, and I think you have to pay people differently. Bankers should be on salaries like the rest of society, not working for commissions based on sales figures. You have to intrinsically motivate people to want to help clients and to have a working life with purpose. Banks are huge pillars of a modern, post-industrial society, and bankers are in a position of accumulated privilege, size and power. This means they also have responsibilities to provide products that are fair and don’t take advantage of that power.
You studied at the London School of Economics during the 1980s, which was a period of substantial de-regulation of financial markets. What impact do you think that experience had on your ideas and academic career? It was a time in my life and a time in Britain when everything seemed possible. I was in my late 20s, it was the 1980s, Margaret Thatcher was in power, the markets were rising, new international relations were happenings. Gorbachev, the fall of the Berlin Wall. There was a lot of land reform going on. I studied restitution at a time before restitutionary law was even recognised by the High Court. In some ways, it made me the academic I am. I had international legal experience at a very young age. The same financial regulation that eventually came to Australia had an earlier version in Britain while I was there. As this interview goes to print, the fact-finding part of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services will have just wrapped up. Was there anything that has come out of the Commission so far that has surprised you? Before the Commission began its hearings, I had the impression that only financial advice and asset management wings of banks were the problem areas. What has astonished me is how endemic the problems are and how they have been replicated in every part of the business: products that don’t fit very well, sales practices that don’t fit the people, shocking record-keeping, poor decisions about risk and who should
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BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR
Q: I am a graduate solicitor who has observed a partner at my firm using aggressive tactics to deal with lawyers for the other side. How can I have a respectful discussion with her about this without risking my job? A: Well-developed communication skills are sought after and important professional attributes for any new lawyer. In this scenario, an early-career lawyer may question what behaviour is appropriate and what example to follow. When considering such questions, be aware of what the obligations are for a legal practitioner in all communications
and, in particular, when a heated dialogue may occur. To observe another practitioner act with hostility and aggression may be an apparent breach of the solicitors’ rules and may require the young lawyer to raise it as an issue in the conduct of a matter. When reviewing these professional obligations, it should be noted that: • ere is a duty on a practitioner to: “ ... be honest and courteous in all dealings in the course of legal practice ...” (Rule 4) and • To observe the professional standards required in all communications and ensure that you must not : “... make any statement which grossly
exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person ...” (Rule 34.1.). e training to acquire and become pro cient in all professional communications will be an ongoing task covering the entire career of every lawyer. e threads that are brought together are courtesy, accuracy and professional standards. ese combine to give the professional communications skills that are the hallmark of every lawyer. Even when others may waver, you must be rm in upholding these standards.
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Lachlan Innes Joined as Senior Corporate Counsel Alstom Transport Australia
Jonathan Gardner Joined as Associate Maples and Calder, London, UK
Osman Aydogan Joined as Solicitor Giles Payne & Co
Emanuel Oros Promoted to Partner,
MahenManokarathas Promoted to Associate
Racha Abboud Appointed as Principal – Commercial Macpherson Kelley
Slater and Gordon Lawyers, Newcastle
Corporate & Commercial Sparke Helmore Lawyers, Sydney
Rita Khodeir Appointed as Principal – Commercial Macpherson Kelley
Suzanne Hallas- Gleeson Appointed as Principal – Private Clients Macpherson Kelley
Ariane Potter Joined as an Associate Lawyer Edwards Family Lawyers
Michael Moloney Joined as Senior Associate Edwards Family Lawyers
Caroline Blair Promoted to Senior Associate, Health and Dispute Resolution Makinson d’Apice Lawyers
James d’Apice Pomoted to Senior Associate, Corporate & Commercial and Building & Construction Makinson d’Apice Lawyers Isabel McLelland, Promoted to Associate, Estate Planning, Trusts, Probate and Estate Litigation Makinson d’Apice Lawyers
Seun Idowu, Pomoted to Senior Associate, Health and Dispute Resolution Makinson d’Apice Lawyers
Sanjay Selvakumaran Promoted to Senior Associate, Dispute Resolution Makinson d’Apice Lawyers
Jacinta Studdert Joined as Partner Clyde & Co
Caitlin Lloyd Joined as Associate Tiyce & Lawyers
Peter Surgeon Joined as Special Counsel Sekel Grinberg Judd, Sydney
David Barnett Joined as Special Counsel Sekel Grinberg Judd, Sydney
Michael Schneider Joined as Partner (Private Client Services) Bartier Perry
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
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FLIP CONFERENCE The future looks brighter than robot lawyers Preparing for the future of the legal profession means looking beyond the “threat of robot lawyers”, a US legal academic told an audience of more than 400 lawyers at the FLIP Conference on 14 September.
Keynote speaker Professor Daniel Katz, from the Chicago Kent College of Law and Director of Law Lab, lamented that mainstream media tended to focus on artificial intelligence and chat bots taking over legal work. However, a diverse range of topics and technology presented at the FLIP Conference hosted by the Law Society of NSW at Sofitel Darling Harbour highlighted that changes to the profession were far more expansive. A legal who’s who of more than 50 international and Australian speakers, law tech experts, members of the judiciary, academics and regulators spoke at the conference, offering a snapshot of the near future for lawyers and outlining
Law Society President Doug Humphreys said the event inspired an “incredible wealth of information, ideas and thought-provoking discussions for the profession on so many levels”. “What was made abundantly clear at the FLIP Conference is that at no time in the brief history of legal technology has there been a convergence of so many powerful new innovations, each creating both opportunities and perils for how lawyers can serve their clients,” said Humphreys. LSJ will be covering the FLIP Conference in greater depth next month. For more information on FLIP in the meantime, visit lawsociety.com.au/ FLIP
how they should embrace innovation and new technologies if they want to achieve greater professional success. Mark Cohen, author of The Future You – Legal Professionals in the Uber Era , and Chrissie Lightfoot, who penned Emotionally Intelligent Humans with Artificially Intelligent Machines , also featured in the star-studded lineup.
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HACKATHON Legal eagles join forces to hack for justice More than 100 participants from universities, law firms and technology companies took part in the Law Society of NSW’s first hackathon, hosted in partnership with The Legal Forecast on 7-9 September. Hackers were asked to develop solutions around various access to justice challenges that were posed by the Supreme Court of NSW and Justice Connect and based on real issues the courts face. Young guns and old hands alike joined forces, as students from law schools around NSW were mentored by experienced lawyers and professors from a range of sectors in the legal industry. “The energy is buzzing – where’d you get this crowd from?” remarked Law Society CEO Michael Tidball on the opening night. The winners were announced at the FLIP Conference dinner on 14 September. Team “HACKTIVATE” won the NSW Supreme Court Challenge by devising a multi-platform app that could be used as a courtroom translator. Team “W.O.M.B.A.T.” won the Justice Connect Challenge, with its idea for an app that would provide an easy guide for self- represented litigants to claim lost entitlements.
COURTS Retirement age raised for NSW judges NSW judges and magistrates will soon be able to serve on court benches for three more years than they could previously, under new laws that raise the compulsory retirement age. NSW Attorney-General Mark Speakman announced on 20 September that judges would now be asked to retire at a maximum age of 75 instead of 72, as the law currently proscribes. Speakman said the legislative reforms would be introduced to Parliament in coming weeks, in a bid to “harness the judicial expertise of our finest legal minds for longer”. “The change reflects social trends towards people living and working longer, and will allow experienced judges and magistrates to continue to contribute to the justice system when they’d otherwise be forced to retire,” said Speakman. Speakman said the reforms would also enable retired judicial officers to be appointed as acting judges and magistrates for fixed periods until the age of 78, up from 77. He also noted the reforms would decrease the average number of years judges receive the pension, which was expected to deliver “significant savings to taxpayers”.
NSWYOUNG LAWYERS Resilience and agility two key skills for future lawyers Supreme Court Justice Fabian Gleeson has told an assembly of young lawyers they need to be “agile” and “resilient” if they are to adapt to new opportunities presented by modern legal careers.
Gleeson explored the challenges that technology and automation pose to the legal profession in an address to more than 50 young legal eagles at the 2018 State of the Profession Address. NSW Young Lawyers hosted the event on 13 September at the Law Society of NSW, with the annual event a highlight on the NSW Young Lawyers calendar. Gleeson predicted that in 10 to 15 years’ time many lawyers in the audience would be performing non-traditional, “hybrid” lawyer jobs such as legal knowledge engineer, legal technologist, legal process analyst, legal project manager, scientist, researcher and developer, or risk manager. “Some of you will have new role titles in law firms and elsewhere, including some in alternative business structures,” said Gleeson.
The judge emphasised the importance of resilience and agility in this rapidly changing environment – emotional skills which were fitting to highlight as he spoke on the national mental health awareness day known as R U OK? Day. “That today is ‘R U OK? Day’ is a reminder that we have a collective responsibility to express, in a meaningful way, care for the wellbeing of others with whom we work and interact,” said Gleeson. “By way of conclusion, I would like to emphasise my earlier remarks drawing attention to the importance of young lawyers building resilience in the practice of law and remaining agile to the opportunities and challenges presented by new technological changes.”
NSW Supreme Court Justice Fabian Gleeson
“Some of you will have lost your traditional areas of practice to the disruption of new technologies, including automation, which is likely to impact standardised and commoditised legal work.”
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