LSJ October 2019

A country lawyer at war The tale of a brave solicitor who fought for Breaker Morant’s freedom Adopting daddy daycare More dads want flexible work options so how can law firms get it right? Vale Chorley exception The High Court wields the axe in a controversial costs ruling Take it or (sick) leave it The Federal Court tackles the costly issue of personal leave

ISSUE 60 OCTOBER 2019

Fillingthe empty spaces A newBritish lawhas sparked calls for change in the way Australia deals withmissing persons

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Contents

24

30 36

Features

24 Hot topic

36 Ready, Aim, Fire

50 Extracurricular

Former NSW Attorney General Gabrielle Upton MP urges law firms to make their gender targets sweat

An exclusive extract from lawyer James Unkles’ new book on the controversial trial of Breaker Morant

Barrister and filmmaker Darren Mort reveals how his family court expertise sparked a new career

52 Health

26 Lunchwith a lawyer Human Rights Commission

40 Going Dutch

Angela Tufvesson examines the flawed formula of measuring Body Mass Index

Alice Ramsay speaks to men doing daddy daycare, and why it’s made them better lawyers

President Rosalind Croucher on the light and shade of her work

56 Travel

30 Forgotten persons

46 Mindset

Lynn Elsey explores the Italian jewel of Verona, a city rich in food, architecture and style, then discovers a Dolomites delight

Kirrily Schwarz examines how a new law could ease the complexity of missing persons cases

Thea O’Connor shares the top tips for building interoception and listening to your body

40

50

60

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 12 News 18 Members on themove 21 Expert witless 21 The LSJ quiz 28 Out and about 44 Career matters 46 Mindset 48 Doing business 49 Career coach 54 Fitness 60 Youwish 62 Books 64 The case that changedme

66 Advocacy

78 IP & competition law ACCC guidelines place

The latest key developments in advocacy and law reform

anti-competitive IP transactions under the spotlight

68 Costs

80 Corporate law

High Court has the final say on the Chorley exception

Time for Australian Financial Services Licensees to act ‘efficiently, honestly and fairly’

70 Mediation

A closer look at the new Singapore Convention 73 Compliance risks Compliance obligations to consider when recruiting and training new talent 74 Employment The Federal Court’s landmark judgment on personal leave New sentencing statistics now available on the Judicial Information Research System 77 Practice & procedure CDPP’s e-Brief Referral 76 Criminal law

82 Wills & estates

Practical tips for dealing with testamentary capacity

84 Personal injury

Part three of our series examines the new concept of ‘minor injury’

86 FLIP

The latest research findings on how lawyers can lead change within their own practice

89 Risk

Practical tips for conveyancing solicitors in a changing economy

90 Case notes

97 Library additions 106 Avid for scandal

Guidelines to improve the efficiency of prosecutions

The latest High Court, Federal, family, criminal, and elder law & succession judgments

Shedding light on legal costs for over 30 years

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A word from the editor

If you’ve never visited the Australian Federal Police’s Missing Persons website, I would encourage you to do so (missingpersons. gov.au). But be prepared to go down the rabbit hole. The website contains the profiles of 700-odd missing Australians – loved ones who vanished one day, never to return. Looking at their faces, some long forgotten, brings home the haunting reality that a significant proportion of our population

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor

is in some way affected by the fact that someone they knew and loved has simply disappeared. For close friends and family, the pain of not knowing where their loved one is must be excruciating. That’s why Kirrily Schwarz’s story on page 30, “Forgotton faces”, shines a light on the growing calls for law reform in this space. How can the law better support and accommodate the heavy administrative burden left behind by the missing – all of which must be tolerated on top of grief, confusion, guilt, anger and a whole raft of other emotions most of us can only imagine.

Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290

Claire Chaffey

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Contributors

© 2019 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.

KIRRILY SCHWARZ Cover story p30 Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. She delves into the complex world of missing persons and finds a strong appetite for change.

JAMES UNKLES Feature p36 James is a lawyer, mediator and author based in Melbourne. In this edition, we run an extract from his new book, Ready, Aim, Fire – the story of the country solicitor who defended Harry “Breaker” Morant in his ill-fated trial.

DAVID PRICE Wills & Estates p82

JUSTINE ROGERS FLIP p86

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David is a barrister and mediator in 7th Floor Wentworth Selborne Chambers. With estate litigation on the rise in NSW, David examines the vexed question of testamentary capacity

Justine is Deputy Director of the FLIP research stream at UNSW Law. With Research Fellow Felicity Bell, she presents research and insights about organisational culture and change leadership.

and the evidence needed to prove it.

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

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President’s message

T he Federal Government’s recent announcement of another inquiry into Australia’s family law system has reignited considerable debate about the best way to address the systematic failures plaguing our family courts. The Joint Select Committee on Australia’s Family Law System will examine whether the current system is “fit for purpose” and comes less than six months after the Australian Law Reform Commission’s comprehensive review of the family law system, which contained 60 recommendations in total. The Law Society of NSW has long identified a need for family law reforms that provide the best outcomes for Australian families who rely on the family court to help them resolve complex and emotional disputes, often within the context of

the insidious and increasing scourge of family violence. As practitioners would well know, the lengthy delays in resolving family court matters are placing significant financial and emotional stresses on families caught up in these disputes – the consequences of which can have a life-long impact on physical and mental health, housing, career and future relationships. While the Law Society will continue to make submissions regarding options to improve the operation of the family law system via our national body, it is our view that urgent basic problems with the family law system, caused by decades of underfunding and under-resourcing, need to be addressed immediately, separate to this latest inquiry. Another ongoing priority is that of mental health and wellbeing in the legal profession. Someone who recognised this was the late Charles Xuereb, who for more than a decade coordinated the Law Society’s Lawyers Assistance Program, which provides confidential support to lawyers doing it tough. To honour Charles’ life and legacy, the Law Society held the inaugural Charles Xuereb Oration at 170 Phillip Street on 24 September, which was delivered by Australian Small Business and Family Enterprise Ombudsman Kate Carnell AO. In her address, Kate emphasised that law firms and legal professionals need to be willing to prioritise themselves and their wellbeing, even if it means disrupting the traditional business model that includes embracing technology and innovation. As Kate said, while change is uncertain, it is also exciting. Learning to adapt is the key challenge, not only for lawyers but for all professionals and businesses. As she sees it, the way we respond to those challenges can impact on our wellbeing, and it is in fact those who see change as an opportunity for discovery, learning and new entrepreneurial endeavours who are most likely to succeed.

Elizabeth Espinosa

Farbeyondthepale Why the recentAFPpress raids requirecarefulconsideration Buildingsocialempires Are lawyersnoton socialmedia missingoutonbusiness? Therightmedicine How treating impulsivity in repeat offenderscould lower violentcrime Apowerfulchill iscast Implicationsof theHighCourt’s recentdecision inComcare vBanerji

ISSUE59 SEPTEMBER 2019

ISSUE59 SEPTEMBER2019

Longevity in the law With alarming statistics

Clean up your act I write this as I sit in one of the Visiting Solicitors meeting rooms in our lovely, peaceful Law Society library, having had to enlist the assistance of library sta to clean the filth left behind by, regretta- bly, one of us – I’m told the rooms are only used by solic- itors. Food crumbs over table and chairs, dirty black marks all over the table, discarded staples that it was too much e ort to pick up and throw in the bin five feet away. But of course, if it can be someone else’s problem, who cares? Come on fellow practitioners – it’s thoughtless and grotty. Please do better. Janine De Saxe, Director, Accredited Specialist Family Law What’s mine is mined I am not a socialist, but I find it di cult to understand why we, as consumers in Australia, are required to pay the retail price for resources that are mined from the country of which I am a citizen. Surely, mining companies [with] the leases to extract gas and other resources, could pro- vide those to the Australian consumers who e ectively own all of the resources in Australia, and if the company sells the resources to a third party then it should be at the retail price. Australia is rich in natural resources which [are] e ectively owned by everyone who is an Austra- lian citizen, and managed by the government of the states, territories and the federal government overall. Perhaps if a political party wishes to establish itself on the basis that Australians [are] allowed [to use] the natural resources of Australia at the cost of mining, then they may find themselves with a significant voter base at the next election. Brendan Manning

Fourth Generation lawyer enters historic practice In 1910, Ernest Henry Tebbutt, architect and barrister, estab- lished a law o ce in Martin Place. Ernest was soon joined by his two sons, William and Roy, and E H Tebbutt and Sons Solicitors came into being. Today, its o ces remain no more than 150 metres from their 1910 origins. Over the past 110 years, the firm has built an enviable reputation for excellence in practice and influence on scholarship. Some of the many notable partner contributions over this time include E H Teb- butt’s authoring in 1918 of The Moratorium (a digest and index to the War Precautions Acts), R E Tebbutt’s seminal 1953 Handbook of Landlord and Tenant Law in NSW , and H W (“Peter”) Tebbutt’s ten- ures as Conveyancing Editor of the Australian Law Journal and the Chalice Lecturer in Property Law at the University of Sydney – positions which spanned the better part of two decades from the mid- 1960s onwards. Since Peter’s retirement in 2005, the firm has continued to prosper, but without a Tebbutt presence. In June 2019, David Roy Tebbutt, great grandson of Ernest, graduating with a First Class Honours degree from the University of Technology Sydney, became the first of the fourth generation to join the practice. With David’s father, Peter, having recently passed away, it was fitting that I, as a long-standing partner at Tebbutts, moved David’s admission. John Hunter, managing partner of the firm since 2006, stated that “David’s addition is exciting and representative of a con- tinuity in values and expertise that have made Tebbutts an institution on the NSW legal landscape”. Michael J Sainsbury, Partner

Slavery inthe supply chain

of disillusion, burnout and opt-out amongst newly-ad- mitted solicitors and reports of depression endemic amongst those who remain, it is timely to read Stephen Cutler’s for- mula for longevity in the legal profession – enjoying what you do, good health, travel, contin- uous learning and the buzz of laughing about something with four generations of clients. My colleague, Warwick Dunn, prefers not to draw attention to his longevity in law (exceeding Stephen Cutler’s by more than a decade!). I joined Warwick in 1987. At that time, he said he was considering “winding down”. With a couple of new knee joints and some occasional surgery, his only real concession to age has been to arrive at the o ce at 9am instead of 7.30am. From my observation of Warwick’s dedication and persistence in the profession and to add to Stephen Cutler’s formula, it really makes a di erence to genuinely like your clients and do what is best for them. The well drilled maxim to “regard your client as your enemy” has some application and is prudent advice, but a more optimistic approach towards human nature makes life in the law more enjoyable. A major point of di erence between Stephen Cutler and Warwick Dunn is that weekends for Warwick have never been spent in the o ce! Maryanne Ofner, Principal, Biddulph & Salenger Themeaning of ethics Speaking of “ethics”, I always like to mention this quote, and its explanation, to aptly illus- trate what it’s all about: “Ethics is knowing the difference between what you have a right to do and what is right to do” i.e. “Doing the right thing when no one else is watching – even when the wrong thing is legal”. Edward Loong

WhyAustralianbusinessesneedtogetseriousaboutthe manyandvariedformsofmodernslavery

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E: letters@lawsociety.com.au

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

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CONGRATULATIONS! Maryanne Ofner has won lunch for four. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

Establishing a right to deal

Legal redress for fathers The father of an unborn baby, who has not been told that the baby’s mother is going to seek an abortion, has no redress. When the mother tells the baby’s father that she has already terminated the preg- nancy without informing him, he has lost a son or daughter and potential grandchildren, and a possible heir to his estate. The father must be able to take legal action against the baby’s mother and also the doctor who agreed to end the baby’s life. Both mother and doctor are conspirators in an action concealed from the father. This happened in my own case. The baby’s father had no legal redress. Virginia C. Smith

CORRECTION In the September edition of LSJ we erroneously reported that Australia was a signatory to the Singapore Convention on Medi- ation. This is not the case. We apologise for this error.

most obvious document is the duplicate certificate of title. The solicitor or con- veyancer should require that the duplicate certifi- cate of title be handed over – alternatively the original registration confirmation statement. If the certificate of title is not available, then the practitioner would be put on enquiry as to why the client did not have it. For example, has the owner given a mortgage by deposit? The Guidance Note does list a number of other documents which corroborate the alleged right to deal, including mortgages, utility accounts

I read the article on e-con- veyancing essentials in LSJ September 2019 and specifi- cally refer to the commentary (on page 81) as to the “right to deal” by a vendor. A prac- titioner is required to take “reasonable steps” to confirm the vendor’s right to deal. I suggest it is insu cient to simply rely upon VOI and a fresh title search showing the vendor’s name. Guidance note 4 on the Model Partici- pation Rules on the ARNECC website at points 5.1 and 5.2 lists a number of supporting documents that should be considered by a solicitor or conveyancer to establish the person’s “right to deal”. The

or rate notices. Stephen Barry

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Briefs NEWS

GOVERNMENT SOLICITORS Awardwinners and experts shine in sold-out Government Solicitors Conference

From left: Conference attendees, NSW Crown Solicitor Karen Smith, and Law Society President Elizabeth Espinosa.

N ew challenges facing gov- ernment lawyers, from modern slavery to the implications of cancelled projects and high-profile Royal Commissions, were discussed at the sold-out annual Government Solici- tors Conference on 3 September. Hosted by the Law Society of NSW, the conference brought together 300 solicitors from all tiers of government. Law Society President Elizabeth Espi- nosa said the conference sessions offered targeted and optimistic advice to assist practitioners to navigate the increasing complexity of government work in an ever-changing landscape. “In the diversity of [the conference] topics we see something of the complex and rapidly evolving world our solicitors in the government segment are con- fronted with every day,” she said. “The Law Society is your ally as you rise to meet these challenges.” The day began with a keynote ad-

dress from NSW Crown Solicitor Karen Smith, who explored present “mega-trends” concerning government including an ageing population, a grow- ing social consciousness, and shift in the global economy. Smith detailed how law could be used to deliver social change and meet the demands of citizens, now referred to as “customers” in the Service NSW system. She also recommend- ed government lawyers harness data, emerging innovation and technology to assist in decision-making. Following sessions canvassed issues ranging from the implications for law- yers of state and federal modern slavery laws, tips on pro bono work, automated decision-making and ethical legal prac- tice. For the first time, the conference hosted a subpoena mock trial in which Magistrate Mark Richardson presided over a case concerning an unsuccessful application to subpoena material about an undercover police officer on the

grounds of legitimate forensic purpose. NSW Parliamentary Counsel An- nette O’Callaghan, fresh from drafting a record number of amendments for the Reproductive Health Care Reform Bill (2019), gave practical advice on how to draft a bill. She offered nine practical suggestions to assist lawyers in draft- ing legislation and discussed challenges of ensuring sound policy development within tight deadlines. The John Hennessy Legal Scholar- ship award was presented by the Law Society CEO Michael Tidball to Sophie Heithersay, solicitor from the NSW De- partment of Communities and Justice. The judges remarked on Heithersay’s highly commended work on inmates ac- cess to technology . Susai Benjamin from Revenue NSW won the Michelle Crowther PSM Ex- cellence in Government Legal Service Award. Michelle Larin from the NSW Port Authority was recognised as highly commended.

NEWS

Influencer

NEWTHISMONTH 2019 Annual Members Dinner The Law Society of NSW Council and President Elizabeth Espinosa invite members to the 2019 Annual Members Dinner on 24 October. Over an evening of dinner, dancing and entertainment we will thank all who have contributed to the work of the Law Society over the course of 2019. We will also honour the achievements of solicitors who have practised law for 50 years, as well as announce the President’s Medal recipient. Visit: lawsociety.com.au/events/annual- members-dinner-2019 Full program at Rural Issues Conference Legal practitioners in regional and remote NSW work tirelessly for local communities while grappling with distinct and challeng- ing issues. The highly anticipated Rural Issues Conference will be held on 25 October at the InterContinental Hotel Sydney and will focus on the unique matters affecting prac- titioners in rural areas. View the program at: lawsociety.com.au/events/events-calendar/ rural-issues-conference Future of the Australianbusiness corporation In the wake of Commissioner Hayne’s Report and the continuing effects of the GFC, what does the future of business look like? This year’s Supreme Court Corporate and Com- mercial Law Conference will seek to provide an answer to this question, which could have profound consequences for business, regula- tors and the legal profession. The conference will be held in the Banco Court of the Su- preme Court of NSW on 29 October. Visit: lawsociety.com.au/events/events-calendar/ SCLC

by

Vale Jane Mathews AO

When I was 14 years old my school showed the movie of the Terence Rattigan play, The Winslow Boy . The lawyer [in the play] got up before the House of Lords at the end and said, ‘Let justice be done’. And that just got to my idealistic 14-year- old heart and the next holidays I went home and said to my parents, ‘I’m going to study law’.

Briefs NEWS

sixminuteswith

MANAGING PARTNER, SWAAB ATTORNEYS MARY DIGIGLIO

high mental health conditions in law, I am not aware of any data which suggests mental health conditions are higher than 10 years ago. There is definitely more discussion and an appetite to understand and assist. Generally, people in law want to be better equipped to identify mental health conditions and ensure those who need help get it quickly. Do you think the way in which law is practised, and the traditional structure of law firms, has an impact on wellbeing? Yes. Billable hours and a personal budget – thrown into a pot with a desktop, laptop, ipad, smart phone and all the latest technology – has created an expectation fromclients that we are available 24/7.This pot is a ticking time bomb. It is precisely why firms and organisations must take responsibility for mental health. Helping people create boundaries and develop tools to manage workload, timelines, personalities and expectations while maintaining integrity, service standards, excellence and client relationships, is integral to keeping people sustainable and happy. I am not suggesting it’s easy – but it needs and can be done. What can law firms do better when it comes to caring for their employees? Walking the talk is a powerful message. We want to see law firm leaders talking about mental health to the firm, cham- pioning the issue, putting it on the firm’s strategic agenda, and providing relevant and accessible resources and training. However, there’s more to it – the real test of the firm’s stance on caring for its em- ployees is how the firm deals with its peo- ple when they have personal challenges in their life. The commitment to wellbeing needs to be woven through the culture of the firm. People want to see the commit- ment, not just hear about it.

a significant amount of time talking to people, trying to understand their challenges, and presenting tools to assist. As a director of Minds Count and a managing partner, it is my responsibility to ensure I am equipped to deal with the complexity of human relationships and interaction. There is no better way to achieve this than further study and professional training. The news is pretty grimwhen it comes to the mental health of the profession. Do you think this can change? Over the last 10 years, many in our profession have promoted the importance of mental health in firms and organisations. Increased awareness has propelled more conversation and openness, better resources and assistance, and an acceptance of responsibility for wellbeing as a profession. While the statistics suggest

You have a deep interest in the wellbeing of the legal profession. Where does that come from? Growing up, my family had little focus on material possessions and more on being a good person and caring for the less fortunate. When I joined Swaab, the firm’s core value, “generosity of spirit”, resonated with me. We have built on this core value and developed our own philosophy around the employer/ employee relationship. A significant part of this is caring for the whole person and investing in their welfare, both at work and outside of work. At Swaab, we set high expectations of appropriate behaviour and fostering wellbeing. We take it very seriously. You’ve decided to complete a course in counselling. What’s the driver? I have a longstanding interest in human behaviour and psychology. I spend

BY PAUL MONAGHAN, SENIOR ETHICS LAWYER

here, so stop complaining,” say many who would do such a thing. is yields many a nightmare and happens regu- larly in law rms. No instruction, no time, and maybe a brief post-it note with an initial of authority as the only form of communication. We should note our obligations in Rule 4 of the Australian Solicitors’ Con- duct Rules: “... A solicitor must act in the best interests of a client in any matter ... be honest and courteous in all dealings in the course of legal practice ... deliver legal services competently, diligently and as promptly as reasonably possible ...”. e court requires every solicitor

appearing to have knowledge of the matter at hand and to be armed with instructions to allow appropriate direc- tions and orders to be made. is is to ensure the court is not inconvenienced, costs are minimised, and time is not wasted. Senior practitioners should ensure all matters have been prepared and the solicitor allocated a le has had time to be pro cient in the presen- tation of it. Blame does not work. Construc- tive procedures to ensure a team works well and the best possible outcome is achieved should be the ultimate goal of every law rm and in-house practice.

Q: What do we do when we’re blamed for making a mistake? What are our obligations? A: Success has many parents, yet failure is an orphan, especially in law. So who to blame when things go wrong? An almost perverse glee is elicited when someone else gets the blame, but what happens when it’s you? Playing the blame game is destructive, in particular for the interests of the client and your duties to the court. When some- one has a ‘poison le’, is it proper to pass it on to some unsuspecting junior? “You have to be thrown in the deep end to learn. at is how it happens

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Briefs NEWS

Eugene Fedoseev Promoted to Associate, Banking and Finance Makinson d’Apice Lawyers

Kate Hinchcliffe Promoted to Associate, Health and Dispute Resolution Makinson d’Apice Lawyers

Jessica Bourke Promoted to Solicitor / Business Manager Hughes & Co. Lawyers & Conveyancing, Parkes & Forbes

Thomas Felizzi, Promoted to Associate Carroll & O’Dea Lawyers

Kristie James Promoted to Associate Carroll & O’Dea Lawyers

Alex Longbottom Promoted to Associate Carroll & O’Dea Lawyers

Jack Pembroke-Birss Appointed to Partner Norton Rose Fulbright

Laura Dale Promoted to Senior Associate Chambers Russell Lawyers, Sydney

CameronWilson Promoted to Associate Chambers Russell Lawyers, Sydney

Luke Jeffrey Promoted to Associate Chambers Russell Lawyers, Sydney

Joel White Promoted to Associate Chambers Russell Lawyers, Sydney

Mary Stephan Joined as a Solicitor John Fasha Solicitors

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

NEWS

APPOINTMENT Bench beckons for Sophia Beckett

“I congratulate Ms Beckett on her appointment and wish her every success in the next stage of what has been an impressive legal career.” Beckett was admitted as a NSW solic- itor in 1990 and was called to the Bar in 2007. She was a senior policy officer at the then Department of Attorney Gen- eral between 2004 and 2005 advising on criminal law and drafting legislation. Beckett returned to the Legal Aid Commission as senior solicitor in the Indictable Appeals Unit and has acted for the Crown in the trial of former politician Eddie Obeid on charges of misconduct in public office, and for the defence in one of Australia’s largest ter- rorism investigations. She spent almost a decade as a barris-

ter at Forbes Chambers before joining the Public Defenders. Beckett will begin the new role this month.

Deputy Public

Senior

Defender Sophia Beckett has been appointed to the bench of the NSW District Court. In announcing

“[Her career has included appearances] across all criminal court jurisdictions, appearing in complex criminal trials, appeals, inquests and inquiries including murder, drug importation and sexual assault matters.” NSW Attorney General Mark Speakman

her ascent to the bench, NSW Attor- ney General Mark Speakman noted Beckett’s “distinguished legal career, spanning almost 30 years”. “[Her career has included appear- ances] across all criminal court jurisdictions, appearing in complex criminal trials, appeals, inquests and inquiries including murder, drug importation and sexual assault matters,” Speakman said.

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Briefs NEWS

Abortion decriminalised inNSW amidfierce debate

BY AMY DALE

A fter several weeks of fierce debate that united MPs from opposing parties and divided political col- leagues, the Abortion Law Reform Bill has passed both houses of NSW Parliament. “Through your substantive debate and historic conscience vote on decrim- inalisation of abortion, the NSW community’s range of views were heard and acknowledged. [The] result will be the best laws in Australia,” said Health Minister Brad Hazzard to MPs after the final vote in the lower house on 26 September. The Bill passed with 26 votes to 14 in the upper house late on 25 Septem- ber, after a marathon debate with over 100 proposed amendments and 26 divisions. The removal of abortion from the NSW Crimes Act after 119 years, has brought NSW into line with other states and territories. After initially passing the lower house in August, the Bill was sent to a committee during a week-long sitting break as some MPs put their careers on the line to prevent it passing the upper house, claiming it would lead to an increase in sex-se- lection abortions and terminations up until the moment of birth. Abortion will now be defined as a regulated medical procedure; a medi- cal practitioner will be able to perform the procedure on a woman up until 22 weeks gestation; after that time the

it was a crime for a pregnant woman to unlawfully administer a drug or poison, or unlawfully use an instru- ment to procure a miscarriage, or for another person to intentionally cause a woman to suffer a miscarriage using unlawfully administered drugs, poison or instruments. The maximum penalty for each of these offences was 10 years in jail. The crime of procuring an abortion has rarely been prosecuted in NSW, following the 1971 case of R v Wald , when District Court Judge Levine found the procedure was permissible if the doctor had an honest and rea- sonable belief that it was necessary on an “economic, social or medical ground or reason” to avoid danger to the woman’s life or her physical or mental health. The offence last came before the NSW courts in 2017, in a local court, when a woman was given a three-year good behaviour bond after purchasing pills online to procure an abortion. “I am satisfied beyond reasonable doubt that the accused ... acted with intent to procure her own miscar- riage,” Magistrate Geoffrey Hiatt said. Prior to this case, in 2006 the offence was heard in a NSW court for the first time in 25 years when a regis- tered doctor, Suman Sood, was given a two-year good behaviour bond for pro- viding drugs for a woman to procure a miscarriage.

“The NSW community’s range of views were heard and acknowledged. The result will be the best laws in Australia.” Brad Hazzard

patient will require the consent of two ‘specialist medical practitioners’, who are obstetricians or have experience in obstetrics. While an amendment seeking to ban ‘sex-selective abortions’ was unsuccessful, another was passed that a review into sex-selection abortions must result in the development of new professional standards. The name of the Bill was also changed from its original title, the Reproductive Health Care Reform Bill. The final Bill has mandated the providing of appropriate medical care if a termination results in a born- alive baby. Until now, offences pertaining to abortion were contained in sections 82 to 84 of the NSW Crimes Act ; stating

PUBLISHAWARDS It’s a threepeat for LSJ at Publish Awards

F or the third year in a row, LSJ has claimed the Association or Member Organisation Publication of the Year Award at the annual Mumbrella Publish Awards. e team secured the win in a competitive eld, beating out Public Accountant, e Brief and HRM by Mahlab for Australian HR magazines. LSJ has been nominated in the category ve times since the magazine was relaunched in 2014. Managing Editor Claire Cha ey was awarded Highly Com- mended in the Editor of the Year (Business) category. LSJ and Asian Jurist , the second magazine published by the Law Society of NSW for LAWASIA, were nominated in six cat- egories at the awards, including Website of the Year, Magazine Cover of the Year (Business), Single Article of the Year for online editor Kate Allman’s cover story on sexual harassment in the legal profession, and Young Writer of the Year.

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Briefs NEWS

APPOINTMENTS New job-share arrangement for PIAC

For the full round-up of Law Society advocacy, see page 66.

The Public Interest Advocacy Centre has appointed Michelle Cohen and CamillaPandolfini as co-principal solicitors ina job-share, and thewomen say more legal firms could reap the benefits of “two minds for one role”. “Job sharing can allow both women and men, with caring or other responsibilities, to also fulfil a desire to have a satisfying career, and pursue leadership roles,” Cohen told LSJ . “To women in the legal industry, we would say being collaborative and supportive of one another is so important.” Cohen leads the centre’s work on discrimination and represented former Disability Discrimination Commissioner Graeme Innes in his landmark case against NSWTrains. She has also led PIAC’s Mental Health Insurance Project, which aims to reduce the discrimination faced by people with past or current mental health conditions in their dealings with insurers. Pan- dolfini led the first academic research study into the use of Suspect Target Management Plans by NSW Police, and settled PIAC’s class action on behalf of young people found to have been wrongly imprisoned by police. She was PIAC’s solicitor in a High Court challenge to the federal govern- ment’s decision to hold a postal survey on same-sex marriage. “We have the benefit of having worked together at PIAC in the strate- gic litigation team for a number of years,” Cohen said. “In that time, we have collaborated to lead strategic projects in litiga- tion and policy and have established a strong respectful and productive working relationship with one another. “We are each dedicated to our respective areas of responsibility but also to supporting each other in our commitment to fulfilling the role. Effective and frequent communication with each other and our col- leagues is essential.” The pair say developing a job-sharing policy could be an important step for firms, with the idea of collaborating on roles still in its early days in the legal profession. “Camilla and Michelle have significant experience driving success- ful strategic litigation at PIAC and both bring a depth of experience in achieving outcomes for clients and the community,” PIAC CEO Jona- thon Hunyor said. “We are looking forward to working with them in this critical leader- ship role.” Professional notices On 19 September 2019 , the Council of the Law Society of NSW resolved to immediately terminate the following Manager appointment made on 23 January 2019: Jason Farrah as Manager of the law practice known as Farry & Co (FN: 11609). On 19 September 2019 , the Council of the Law Society of NSW resolved to immediately terminate the following Manager appointment made on 13 February 2019: Richard Gerard Flynn as Manager of the law practice known as MS Law & Attorney Pty Ltd (FN: 33718).

Fees paid to private practitioners in legally aidedmatters In 2018 the Law Society made submis- sions to Legal AidNSWas part of its review of fees paid to private practitioners for legally aided work. Legal Aid’s business case for the reform of fees remains under Government con- sideration. We requested an update from the Attorney General regarding increasing the Legal Aid rate for private practitioners. We reiterated our position that an increase in funding is required to allow for proper remuneration to attract private practitioners of sufficient skill and expertise. SIRA’s review on the ‘minor injury’ definition The Injury Compensation Committee contributed to a submission to the State Insurance Regulatory Authority on its review of the ‘minor injury’ definition under the Motor Accidents Injuries Act 2017 (‘the Act’). The submission outlined issues with the current ‘minor injury’ definition, includ- ing that by attempting to focus on how an injury can be diagnosed objectively, without any contemplation of the real-life conse- quences the threshold can lead to arbitrary, counterintuitive and unfair outcomes for claimants. The Privacy and Data Law Commit- tee contributed to a submission to the Department of Communities and Justice on whether a mandatory reporting scheme for data breaches by NSW public sector agencies should be adopted in NSW. The submission notes the Law Society sup- ports introduction of a mandatory reporting scheme for data breaches in NSW by public sector agencies, but made several recommen- dations. Notification of data breaches by public sector agencies

Do you take this tree to be your lawfully wedded husband? “I do.” Kate Cunningham, a British woman from Liverpool, has tied the knot with a tree in a desperate attempt to prevent plans for a dual carriage way being built through a much-loved nature reserve. According to the Daily Mail , Cunningham will take the tree’s last name, becoming Kate Rose Elder after the species of tree with which she has committed to put down roots. e couple took an untraditional approach by opting for a joint hens-do the night before the wedding. Mrs Elder invited a group of her closest friends to celebrate around her future husband and his groomsmen (other trees). Rumour has it several of the bridesmaids were hoping to hit it o with the groomsmen but proved incompatible. Mrs Elder still has a (human) boy- friend, however he was been completely supportive of the marriage and attended

Drunk raccoons found to be over the limit United Press International has reported that residents in Ottawa, Canada, have been complaining of drunk raccoons stumbling around their properties. Emily Rodgers said she arrived home one day to nd one racoon massively oversharing, one racoon passed out on her couch next to a KFC bucket, and another yelling ‘I’m not drunk, you’re drunk!’ According to biology professor Michael Runtz from Carleton University, the racoons are getting drunk from fer- mented fruit. Runtz advises residents to give them water and don’t let them call any exes.

the ceremony along with a group of her close friends. Her eldest son was initial- ly morti ed at the idea of having a new step-father that was a tree but has since realised the bene ts of being able to climb it. e pair are due to go on their honey- moon later this year. Mrs Elder has her sights set on Fiji but Mr Elder has a fear of ying.

Cross-examination Test your legal knowledge ...

1. Which former opposition leader’s partner was appointed magistrate of the NSW Local Court in September? 2. What section 51 head of power was the Tasmanian Dam case about? 3. When did the registration grace period for the Foreign Influence Transparency Scheme end? 4. NSW Governors serve for a term of how many years?

5. What does the phrase nemo dat non quod habet mean? 6. How many referendums has Australia had? 7. Per UNCLOS, how many nautical miles is a country’s territorial sea? 8. Which of the following Royal Commissions is fake? The Royal commission into: (a) The Butter Industry (b) Secret Drugs, Cures and Foods (c) Refrigeration

9. Which current famous Australian actress has a law degree from UNSW? 10. Who is the only Australian judge sitting on the International Court of Justice?

Answers on page 63

Making our targets sweat

The Hon GABRIELLE UPTON MP was NSW’s first female Attorney General and held the portfolio from 2015-17. She argues that we owe it to the profession to work our equitable briefing targets hard.

he issue of how to increase women’s representation in senior ranks of the legal industry has long generated discussion. With more than half

women in law. I was responsible for approving the appointment of Senior Counsel to NSW Government Agency briefs as well as approving rates for their fees. Matters which require Senior Counsel are often complex, high pro le and/or highly contentious. Under the Premier’s Memorandum M2009-17, the Crown Solicitor and Government Agencies must put forward at least one female candidate for the three Senior Counsel required nomina- tions. Where a female Senior Counsel is not nominated, reasons must be given. My role gave me a unique opportunity to increase the appointment of women to Government Agency briefs. e main areas of law in which female Senior Counsel have histori- cally been engaged include litigation, employment, industrial relations, com- mercial projects, construction and coronial inquiries. I took the view that since Senior Counsel are credentialed

by their peers, any candidate put for- ward could do the job well. Consequently, I pro- actively selected female Senior Counsel candidates where one was nominated. Where an appointment brief didn’t nominate a woman, I always asked why and followed up. As my expectation of Government Agen- cies became clear, the number of female Senior Counsel nominated in appoint- ment briefs increased and I didn’t need to sweat the target so much. From 1 July 2016, NSW Govern- ment Legal Services required panel law rms to seek approval for the engage- ment of Senior Counsel in accordance with the targets in the Premier’s Mem- orandum M2009-17. is helped to further drive the NSW Government’s equitable brie ng targets. Gratifyingly, in the 2015-16 nancial year, female Senior Counsel received a

the state’s law graduates being female, equity dictates we have to remove the barriers preventing them from securing these senior roles. e Law Council of Australia, var- ious law societies, bar associations and law rms have all implemented policies, targets and reporting mechanisms to achieve this. Like most e ective reform, it requires incremental steps and for everyone to step up. Targets alone do not guarantee success – we must make our targets sweat. When I took o ce as the NSW Attorney General in 2015, I wanted to help close the ‘opportunity gap’ for

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