LSJ - September 2014

SEPTEMBER 2014

HEADHELDHIGH WHY CONFIDENCE IS CRUCIAL FOR A LAWYER’S SUCCESS WAYOUT WEST A UNIQUE KIND OF LEGAL PRACTICE HIGH IMPACT STATEMENTS NEW POWER TO VICTIMS OF CRIME MENTOR BEWARE ARE YOU REALLY HELPING? MAKE THE CHANGE SIMPLE STEPS TO GOOD HEALTH THE LONE DEMOCRACY IS IT TIME TO RECONSIDER AN AUSTRALIAN HUMAN RIGHTS CHARTER?

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PRESIDENT’S MESSAGE

I am pleased to report that work on the Law Society’s 2015 State election policy platform is progressing. Building on the Society’s outstanding policy and law reform submissions, this platform will ensure measures that increase justice and fairness in the legal system are front and centre for political parties and candidates, whether they are in government or opposition following the March 28 election. Consultation with the Society’s policy committees and stakeholders has identi ed a number of key issues, including restrictions on legal representation, court funding and accessibility, sentencing, funding for legal aid services, workers compensation and CTP reform. At the time of writing, the Bail Amendment Act 2014 was progressing through NSW Parliament. e bill seeks to amend the

current law so there is a one-step process whereby if an “unacceptable risk” exists after a number of factors have been considered, bail will not be granted. e bill lists factors that must be taken into account, including views of the victim or victim’s family members, which are relevant to a concern about the safety of the victim, individuals, or the community. Initial analysis of the bill indicates a step back to the presumptions against bail that existed under the old law. Further assessment of these changes is required. Applications for membership of the Society’s policy and regulatory committees open on 8 September and I encourage

members to get involved. Having joined a number of the Society’s 28 policy committees over the years, I have found this work to be rewarding and challenging at times, but always worthwhile. Visit lawsociety.com.au/ committees for details. Finally, I congratulate the Honorable Justice

Derek Price AM on his appointment as new Chief Judge of the District Court. Justice Price is former Sydney- and Dubbo-based solicitor who served as president of the Orana Regional Law Society in the 1980s. I would like to thank the outgoing Chief Judge of the District Court, the Honorable Justice Reginald Blanch AM. Justice Blanch is a highly respected judicial o cer and I thank him on behalf of the profession, for his outstanding service over many years.

SEPTEMBER 2014 I LSJ 3

A WORD FROM THE EDITOR

ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer

It feels like only yesterday that Australia was debating whether or not we needed a human rights charter. But it wasn’t. It was about ve years ago. And, as you probably know, the decision was taken that we do not need a charter to protect human rights in this country. However, as journalist Dominic Rolfe details from page 24, there are growing murmurs for this decision to be re-examined. Rolfe takes a look at a new set of reasons why the question, perhaps, needs to be thrown into the arena once more. Another fabulous article in this edition of LSJ is Julie McCrossin’s interview with Aboriginal Legal Service solicitor Felicity Graham on page 34. What a fascinating job Graham has! I was struck by her tales of camping on the banks of the Darling River in western NSW and dining on self-caught yabbies the night before attending local court. As a country kid, this makes me feel quite nostalgic and Graham certainly is an example of a young lawyer doing hugely important and game-changing work in the regions. As we welcome in spring, I hope you enjoy this edition as much as we enjoyed producing it.

Michael Nguyen Photographer Jason McCormack Editorial enquiries journal@lawsociety.com.au Business Development Manager Jemma Still Classified Ads www.lawsociety.com.au/advertise Advertising enquiries jemma.still@lawsociety.com.au or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2014 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

Contributors

Dominic Rolfe is a Sydney-based journalist. His first story for the LSJ is about the “freedoms debate” that looks at an Australian charter for human rights. The lone democracy p24

Catherine Fox is a commentator on women and the workforce and author of three books. She writes about the issue of confidence at work with a focus on the

David Clutterbuck advises the International Bar Association on mentoring. On the eve of an Australian visit, he o’ers his dos and don’ts for mentors and mentees. Bad manners at the mentoring table p38

Richard McCullagh lectures in elder law and is author of Retirement Village Law in NSW . He explains the major reforms to residential aged care introduced on 1 July. Aged care reforms p70

Cover design: Andy Raubinger

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Got 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 the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.

NEXT ISSUE: 1 OCTOBER 2014

70 LSJ I SEPTEMBER 2014

CONTENTS

24

34

FEATURES

20 HOT TOPIC Rebecca Barrington argues the need for domestic violence courts 24 COVER STORY Dominic Rolfe tackles the question of whether Australia needs to re- open the debate around a Human Rights Charter 30 FEATURE Catherine Fox and Jane Southward examine why confidence is king when it comes to work success 34 PROFILE Julie McCrossin meets a young country lawyer making a real di€ernce out west

50 CHANGE ONE THING What you can change in your life to achieve better health 52 POSTURE Chiropractor Michael Egan shares vital tips to get you standing taller 54 PSYCHE Mim Beim looks at how breathing can make a huge di€erence to your wellbeing 55 THE FINAL THREE Can’t shake those last few kilos? Here’s how!

56 CITY GUIDE Your guide to spending 24 hours in Dubai 60 YOUWISH

Jane Southward soaks up the laid-back river charm of The Frames in SA 62 HIGH EXPECTATIONS Brooke Swavley gets well o€ the beaten path in breathtaking Peru

6 LSJ I SEPTEMBER 2014

56 42

REGULARS

LEGAL UPDATES

8 MAILBAG 10 BRIEFS

44 TECHNOLOGY

66 CRIMINAL LAW 68 TAXATION 70 ELDER LAW 72 CONSTITUTIONAL 74 INTELLECTUAL PROPERTY 76 RISK

Do you need a virtual legal secretary?

News and events from the legal world 12 PROFESSIONAL NOTICES 14 FROM THE ARCHIVES 16 CAREER MOVES Who moved where this month 18 GLOBAL FOCUS Legal news from around the world 22 PEARLS OF WISDOM

46 PRACTICE

MANAGEMENT The importance of diversification 48 EXTRACURRICULAR

Carroll & O’Dea partner Maithri Panagoda sings to his own tune

77 EMPLOYMENT 78 DEFAMATION 80 CORPORATE 82 CTP 84 CASE NOTES: HIGH AND FEDERAL COURTS 86 GENERAL PRACTICE 90 LAW SOCIETY ADVOCACY

64 LIFESTYLE

The latest in wine, books, events and style

98 EXPERT WITLESS Legal news to make you giggle

Human Rights Commissioner Gillian Triggs 40 CAREER HUB

Get the best out of work

42 A DAY IN THE LIFE Jane Southward meets criminal lawyer Deng Adut

SEPTEMBER 2014 I LSJ 7

MAILBAG

LETTERS TO THE EDITOR

Judges are not above the law Moses SC is of the view that a judge’s conduct and rulings are not for public debate. He makes a poor case to support his argument. He says the NSW Parliament has the ultimate responsibility. The NSW Parliament is subject to the electorate. Why should not members of Parliament gauge the public mood? Judges choose to be in public life. Like all others in public life making decisions that a‹ect people they are open to public scrutiny and comment. Judges are not and should not be above the law. Leslie Young, Randwick Back to basics I write to express concern about an increasingly popular practice among real estate agents – often called a “tender” process – where purchasers are asked to produce a signed Contract for Sale of Land with their “best o‹er” inserted, a cheque for a 10 per cent deposit and a s66W certificate. I cannot understand how a contract can be signed (and likely a print of an emailed draft contract NOT, as it should be, an original counterpart with blue pages) and a cheque for a deposit produced when there has been no acceptance by the vendor of an o‹er. Apart from not wishing to participate in any breach of copyright, am I just being old-fashioned or pedantic by expecting o‹er and acceptance before a contract is signed? Deborah Tam, Eastwood

Say no to trial by media The public outcry surrounding Judge Garry Neilson’s comments are unfair when he is precluded by his judicial ožce from speaking publicly to defend himself. This is the responsibility of the Attorney-General who, far from defending him, seems to have passed judgment while the matter is sub judice. His Honour’s comments, seen in the context of a dižcult criminal trial, are judicially balanced and sage when dealing with this emotive, painful social taboo that excites partisan predetermined opinions and passions. Clearly it is an unpleasant subject but if Judge Neilson had said during the conduct of this trial (as the Attorney-General is reported to have said to the media) that “Incest is completely reprehensible, unacceptable, disgusting and criminal”, it may have been grounds for a mistrial for apprehended bias. Judge Neilson is correct – homosexual acts between consenting males in the 1950s and 1960s, indeed, from Victorian times, were criminal acts. Further, there may have been in the evidence mitigating considerations to this charge of incest and, like it or not and unpleasant as they may be, His Honour was duly bound to pose them; not to do so could be a breach of his oath of ožce and he had the moral courage to do so. A word of caution: the Fairfax media seems to be conducting a trial by media and a public outcry can quickly become

a witch hunt: he is too fine a Judge for this to happen. We are supposed to have an independent judiciary. It would be remiss not to speak up and mean spirited not to say Judge Neilson has been a credit to the Bench and has conducted his role with dignity, fairness and compassion for many years. The legal profession needs to stand up and be counted: Judge Neilson should not be tried in the court of public opinion. He deserves better. Richard Black, lawyer the latest Law Society Journal and thought I had just read a women’s magazine. Most of the articles are about women. I am a member of the Law Society to be represented as a lawyer not a gender. Brendan Manning, Frenchs Forest You snooze, you lose On 21 July 2014, English Judge Phillip Cattan fell asleep during a criminal trial. The matter was raised with him and he abandoned the trial. The matter has been referred to the Judicial Complaints Commission. English Judge Gabriel Hutton did the same thing in 2001 and with the same result. James Bowers, London **Correction** On page 16 of the July 2014 edition of LSJ, we incorrectly referred to Hugo Paul of Mills Oakley as a lawyer when he is in fact a special counsel. Gender bender I have just finished reading

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WRITE TO US: We would love to hear your views on the news! The author of our favourite letter each month will WIN LUNCH FOR FOUR at the Law Society dining room . Email: letters@lawsociety.com.au What a champ! What a joy to read in the August issue of the Law Society Journal about legal student and boxer Shelley Watts competing at the Commonwealth Games in Glasgow. Shelley, from Laurieton, is in her final year of law and looking forward to using her boxing talents in the court room. The best quote from Shelley was: “I don’t want to look back on life and think I could have done this a little better or I should have given this a crack. I just want to be able to say I have lived my life to the fullest and enjoyed every moment of it”. Wise words from Australia’s first female boxing Commonwealth

Games gold medallist. John O’Brien, Laurieton

8 LSJ I SEPTEMBER 2014

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BRIEFS NEWS

FORMER A G JOINS SYDNEY FIRM Former Commonwealth Attorney- General Robert McClelland has joined Carroll & O’Dea Lawyers. Attorney-General for Australia between 2007 and 2011, McClelland was first elected to the seat of Barton in 1996, which he held until announcing his retirement from politics at the 2013 election. He joins Carroll & O’Dea’s Workplace Solutions practice and will be based in Sydney. 16TH BIENNIAL NATIONAL FAMILY LAWCONFERENCE Last hosted in Sydney in 2000, the biennial National Family Law Conference makes its way back to the NSW capital from 7 to 10 October this year. This is an event every family lawyer should attend. One of the exciting new features in 2014 is the opening night Q&A event hosted by pre-eminent journalist and broadcaster Tony Jones. Panellists will include the former Commonwealth Attorney-General the Hon Mark Dreyfus QC MP, social commentator Bettina Arndt, former Family Court judge the Hon Jennifer Boland AM, entrepreneur Mark Carnegie and Australian Greens MLC Dr Mehreen Farqui. It promises to be an important conference with delegates treated to more than 37 sessions that comprehensively address all aspects of the practice of family law, ranging from a thorough coverage of legal principle and practice management through to the exploration of new and developing areas of the law and associated areas.

The Hon Professor Andrew Rogers QC, Ros Everett and Albert Monichino QC

LAW SOCIETY SUPPORTS INTERNATIONALCOMMERCIAL ARBITRATION The 9th Annual International Commercial Arbitration Dinner was held on 24 July, co-sponsored by the Law Society of NSW and the Chartered Institute of Arbitrators Australia. This event began as an opportunity to congratulate students of the Diploma of International Commercial Arbitration course (run by the Chartered Institute of Arbitrators) and has since expanded its scope to recognise the increasing role played by international commercial arbitration in our global economy. Law Society of NSW president Ros Everett welcomed guests with a brief review of NSW’s year in arbitration, particularly noting the relocation of LAWASIA to Sydney. The guest speaker was the Hon Professor

Andrew Rogers QC, formerly chief judge of the Supreme Court Commercial Division. In his introduction to more than 80 local, interstate and overseas guests, the president of the Chartered Institute of Arbitrators Australia Branch, Albert

The Hon Justice David Hammerschlag, the Hon Tom Bathurst AC and Mr Peter Callaghen SC

Monichino QC, described the guest speaker’s judicial style as that of an “iron fist wrapped in a titanium glove”. Professor Rogers regaled guests with anecdotes of his experiences in international commercial arbitration, and provoked some thought with his idea that commercial disputes might be better solved by commercial people rather than lawyers. For more pictures, see page 15.

familylawconference2014.com

10 LSJ I SEPTEMBER 2014

BRIEFS NEWS

SPEAK UP FOR A CHARITY An organisation pushing for more Australians to nominate a charity in their will is calling on solicitors to step up and make a di€erence The charity Live On is urging lawyers – and all Australians – to think of charities when making wills especially during Include a Charity Week from 8 to 14 September. While 70 per cent of Australians support a charity in their lifetime, only 19 per cent currently consider making a charitable bequest and just 12.5 per cent actually do. One study from the University of Bristol split will-writing solicitors into three groups. In one group that did not ask clients about including a charity, 4.9 per cent of people left a charitable gift in their wills. In a second group in which solicitors asked, “Would you like to leave any money to charity in your will?”, 10.8 per cent of clients left charitable gifts. In the third group in which solicitors were asked, “Many of our customers like to leave money to charity in their will. Are there any causes that you are passionate about?”, 15.4 per cent of clients left a charitable gift. “This clearly shows that simply asking people at the right moment whether they want to donate leads to a substantial increase in giving,” a spokeswoman for Include a Charity said. “It’s also about how solicitors ask the question. “This study shows that solicitors can have a huge impact on charitable bequests – simply by asking the question – in the right way.” Leanne Warner, Include a Charity chairperson, said: “Most major Australian charities are reliant on bequests to fulfil their good work in the community, and Include a Charity Week highlights the enormous assistance a charitable bequest can deliver to charities everywhere. Leaving a lasting legacy is really wonderful way to be remembered.”

The Baird Government’s proposed changes to bail laws in New South Wales threaten to breach Australia’s international human rights obligations, according to Australian Lawyers for Human Rights (ALHR). Under the proposed reforms the presumption of innocence will be relegated to the Preamble of the Act, rather than as a “purpose” of the Act. For serious o€ences, the onus will be on the accused to “show cause” that their detention in custody is unjustified. ALHR president Nathan Kennedy said the changes would undermine the basic common law presumption of innocence, and that they were inconsistent with Australia’s international human rights obligations. “It is important to remember that a person who is on bail or remanded before trial has not been convicted of an o€ence. Indeed, nearly half all people who are charged with an o€ence are ultimately acquitted,” said Kennedy in a statement. “Whilst the criminal justice system must recognise situations where pre-trial detention is justified, the reforms are not reasonable because they do not allow the courts to assess the risks of granting bail based on the circumstances of the o€ence. They instead introduce arbitrary provisions dealing with all crimes in certain categories in the same way, irrespective of the facts of the case. This will potentially see innocent people spend long periods on remand awaiting trial and significantly increase the pressure on our already overburdened prison system.” Kennedy said that rather than being based on empirical evidence, the reforms appeared to be a knee jerk reaction in response to alarmist media coverage of a handful of cases. “The premature nature of these reforms jeopardises the maintenance of principled and balanced bail laws in New South Wales,” he said. “ALHR calls on the government to reconsider the reforms in light of their apparent inconsistency with the presumption of innocence, which is a fundamental and long-held principle of the common law and international human rights.” OUSTED IN BAILREFORMS FUNDAMENTAL RIGHTS “It is important to remember that a person who is on bail or remanded before trial has not been convicted of an oence. Indeed, nearly half all people who are charged with an oence are ultimately acquitted.” NATHAN KENNEDY, PRESIDENT, AUSTRALIAN LAWYERS FOR HUMAN RIGHTS

includeacharity.com.au/legal

SEPTEMBER 2014 I LSJ 11

BRIEFS NEWS

SMALL BUSINESSES MUSTGRASP LAWS Fair Work Ombudsman Natalie James has told small business operators they need to make an e¢ort to understand and comply with workplace laws. At the National Small Business Summit held in Melbourne last month, she said workplace laws could be “complicated for the uninitiated”, and for those who were not industrial experts the margin for error was high. James told small businesses they had nothing to fear from the Fair Work Ombudsman unless they deliberately exploited employees or take advantage of the vulnerable. She also tried to debunk perceptions that the Fair Work Ombudsman was heavy-handed, saying that only one in every 500 matters investigated ended up in court. “We have thousands of interactions with business owners every day, and yet very few issues see us reach for enforcement tools,” she said. James urged small business operators to use the Fair Work Ombudsman’s new website to assist them understand and comply with their workplace obligations. “It prioritises the most common and fundamental information people look for. Where possible, it also tailors information for the user and provides specific answers that you can act on,” she said. Commenting on the modern award review being undertaken by the Fair Work Commission, James said that while the national system was now simpler than it was, there was still room for it to be made clearer. WOMENSHINEAT LAWAWARDS Australia and New Zealand’s top female lawyers gathered in Sydney on 7 August for the third Australasia Women in Business Law Awards. The president of the NSW Bar Association, Jane Needham SC, gave the keynote address at the event hosted by Euromoney Legal Media Group, which celebrates women leading their field as well as female-friendly workplaces. Baker & McKenzie was named best international firm for women in business law, DLA Piper took out the best pro bono work and mentoring program awards, Piper Alderman took the gong for best gender diversity initiative for an Australasian firm and King & Wood Mallesons won an award for the same category for an international firm. For a full list of group and individual winners, including Russel McVeagh’s Pip Greenwood, who was named best in capital markets, visit iflr.com/Article/3369204/Search/Results/ Australasia-Women-in-Business-Law-Awards-2014-Winners. “We have thousands of interactions with business owners every day, and yet very few issues see us reach for enforcement tools.” NATALIE JAMES, FAIR WORK OMBUDSMAN

PROFESSIONAL NOTICES The Council of the Law Society of New South Wales, at a meeting on 17 July 2014, resolved to immediately suspend the practising certificate of Margaret Scanlan pursuant to section 548 of the Legal Profession Act 2004 . On 17 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Gerard Flynn, solicitor, was appointed as manager of the law practice known as Scanlan’s Lawyers (Id: 16972) formerly conducted by Margaret Scanlan. On 17 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Ocean Lawyers (Id: 23059) formerly conducted by Travis McGeachy. On 17 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Anthony Neary Walker, solicitor, was appointed as manager of the law practice known as Orion Legal Pty Ltd (Id: 23325) formerly conducted by Rajbir Singh. On 24 July 2014, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Francesco Leonardo Andreone be removed from the Roll of Legal Practitioners.

Pip Greenwood, who was honoured at the Women in Business Law Awards.

12 LSJ I SEPTEMBER 2014

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BRIEFS NEWS

The Honourable Justice Derek Michael Price AM has been appointed as new Chief Judge of the District Court of New South Wales. APPOINTEDCHIEF JUDGE OFTHEDISTRICTCOURT FORMER SOLICITOR

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NSW Attorney-General Brad Hazzard, left, and Justice Reginald Blanch.

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Justice Derek Price started his judicial career as a magistrate at St James Court. In 1999 he was appointed an Acting Judge of the District Court of NSW – an appointment that was later made permanent. In 2002 he became Chief Magistrate of NSW and, in 2006, he was appointed to the Supreme Court of NSW. Justice Price is taking over from the Honourable Justice Reginald Blanch AM, who was appointed to the role in 1994. Speaking on behalf of the NSW Bar, State Attorney-General Brad Hazzard spoke at Justice Blanch’s retirement ceremony last month, saying he had an “excellent blend of traits that have led [him] to being one of the finest judicial o–cers in Australia”. Justice Blanch began his legal career in 1966 and joined the Bar in 1972. In 1980, he was appointed as one of her Majesty’s counsel and became the Deputy Senior Public Defender. In 1984, he was appointed Crown Advocate, advising the Commissioner of Police in the attempt to prosecute corruption in the NSW Police Force. Hazzard said that His Honour’s “reputation as a man of unimpeachable integrity, honesty and fairness” led to his appointment as the first Director of Public Prosecutions in 1987. “Members of the Bench and the Bar past and present have praised you for establishing a substantial foundation for the o–ce of the Director of Public Prosecutions and a truly independent prosecutorial arm of government,” Hazzard said. “One former prosecutor and judge tells me that, when dealing with controversial cases, you ‘served no causes and brought much needed objectivity and practicality to the role’. In fact, I could find no criticisms of your Honour save and except one of your colleagues telling me that at some stage you ‘took up pipe smoking’. What perhaps is a little more savage is to end that commentary by saying ‘and was not particularly good at it’, although I was told that, on the upside – and I am sure we can all see this now – it made you look like Sherlock Holmes.” In 1994, Justice Blanch was appointed a judge of the Supreme Court of NSW, where he sat in civil and criminal cases and on the Court of Criminal Appeal. The same year he was appointed Chief Judge of the District Court. “I think it is fair to say, your Honour, you are one of the most respected professionals in the criminal justice system,” said Hazzard. “Practitioners who have appeared before you, both defence and prosecution, describe you as fair, patient beyond all measure, and a pleasure to appear before.” CY CMY K

SEPTEMBER 2014 I LSJ 13

BRIEFS FROM THE ARCHIVES

review THE YEAR IN 1988

Take a trip down memory lane through the pages of the Law Society Journal.

TIME FOR FUN Law Society president WV Windeyer writes in his November president’s message: “We are in a time of full employment in the law; nearly everyone is too busy yet many are quite inadequately rewarded for the work they do. Life is becoming more complicated and more people need more advice

about more things . . . I think that we ought to enjoy ourselves more. How can we expect others to want to enter the law unless we appear to be happy in our work. I think a lot more laughter and a lot less talking about billable hours – which is an appalling phrase anyway – would be a jolly good thing.” QUOTABLE QUOTE “How can we expect others to want to enter the law unless we appear to be happy in our work. A lot more laughter and a lot less talking about billable hours would be a jolly good thing.” LAW SOCIETY PRESIDENT WV WINDEYER

IN THE NEWS Nick Greiner is elected NSW Premier in elections on 19 March 1988. John Dowd becomes Attorney-General. Kevin Waller is appointed State Coroner and Derek Hand is appointed Deputy State Coroner. The Law Society Council agrees to support a set of recommended minimum salaries for solicitors after lobbying by the Young Lawyers Section. The recommended salaries for the first three years of practice are annual salaries of $19,000 for the first year, $21,000 for year two, and $24,000 for the third year. There are more active solicitors in NSW over the age of 65 than there are under the age of 25. Of the 9263 solicitors in NSW, 2056 are aged between 30 and 34; 329 are aged over 65 and 206 are between 20 and 24. Justice Mary Gaudron ,

NEWDISCIPLINARY SYSTEM IS INTRODUCED The Legal Profession Act 1987 becomes law, o€ering a revised system of discipline of solicitors and barristers in NSW. It also introduces the new concept of unsatisfactory professional conduct to cover the area of bad professional work that the former provisions failed to tackle. Unsatisfactory

pictured, launches Other Sides to the Law , a book on careers for law graduates other than in private practice. Justice Gaudron questions why there is so little mobility within the profession. “The answer which suggests itself is that the manner in which the practice of law is organised does not

professional conduct is redefined to include “conduct (whether consisting of an act or an omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner”.

really permit of this mobility. Yet one suspects that knowledge acquired in the fields of commerce and industry may be every bit as valuable to a practising lawyer as is knowledge of the law to a person working in commerce and industry,” she says. The Law Society estimates that just 50 per cent of people who graduate in law are required to fill vacancies in private solicitors’ practices.

14 LSJ I SEPTEMBER 2014

BRIEFS OUT AND ABOUT

INTERNATIONAL COMMERCIAL ARBITRATION DINNER

The 9th Annual International Commercial Arbitration Dinner was held on 24 July 2014, co-sponsored by the Law Society of NSW and the Chartered Institute of Arbitrators Australia. The Hon Professor Andrew Rogers QC, formerly chief judge of the Supreme Court Commercial Division was the guest speaker.

THOUGHT LEADERSHIP MURKY WORLD OF CYBER BULLYING EXPLORED. On 5 August, members turned out to hear the Hon Paul Fletcher MP, Australian Human Rights Commissioner Tim Wilson, and Dr Jenny Cartwright of the Australian Federal Police discuss

legal issues around cyberbullying with Nigel Phair from the Centre for Internet Safety.

SEPTEMBER 2014 I LSJ 15

BRIEFS CAREER MOVES

MEMBERS ON THE

ANGUS FOLEY Now a partner in the infrastructure group Ashurst Sydney

ROWANMCMONNIES Now a partner in the competition practice Baker & McKenzie Sydney

WILL MCCOSKER Now a partner in the M&A practice King & Wood Mallesons Sydney

JOHN VIZZONE Now a partner at Vizzone Ruggero Twigg Lawyers

JOE VIZZONE Now a partner at Vizzone Ruggero Twigg Lawyers

TRAVIS TOEMOE Now a partner in the dispute resolution practice King & Wood Mallesons Sydney

ANNELISE PEDERSEN Joined as director in the family law practice Meyer Partners Family Lawyers

MICHELLE FINNANE Now senior solicitor and accredited specialist in family law Tiyce & Lawyers Sydney

PETA STEVENSON Now a partner in the dispute resolution practice King & Wood Mallesons Sydney

LISA RUGGERO SALERNO Now a partner at Vizzone Ruggero Twigg Lawyers

DANIELLA RUGGERO Now a partner at Vizzone Ruggero Twigg Lawyers

CATE NAGY Now a partner in the

dispute resolution practice King & Wood Mallesons Sydney

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

1 LSJ I JUNE 2014 6 LSJ I SEPTEMBER 2014

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LEGAL NEWS FROM AROUND THE WORLD

UNITED KINGDOM PHILIP MORRIS PREPARED TO SUE AGAIN Tobacco giant Philip Morris has announced plans to sue if the British government’s plans to introduce cigarette plain packaging laws are passed by parliament this year. The UK draft regulations propose that cigarettes be sold with graphic health warnings and no branding – much the same as in Australia. The draft regulations follow a UK government review that found the changes to cigarette packaging were likely to reduce the incidence of young people taking up smoking. The draft regulations, released in June, were followed by a six- week consultation period. Reuters has reported that Philip Morris’s submissions to the government stated that “’standardised packaging” is a euphemism for government-mandated destruction of property” and that “it is unlawful, disproportionate and at odds with the most basic requirements of the rule of law”. Already in the process of suing the Australian government for its world- first plain packaging laws, Philip Morris said it was also planning to “seek fair compensation” through the courts if the UK laws were passed and the company’s branding is ašected. The amount of compensation sought could potentially be “billions of pounds”, according to the company’s submission to the Department of Health.

CAMBODIA KHMER ROUGE LEADERS GUILTY OF CRIMES AGAINST HUMANITY Almost 40 years after Pol Pot’s Khmer Rouge regime came to power in Cambodia, two of the highest level surviving leaders of the former regime have been convicted of crimes against humanity in a specially-formed UN Cambodian Tribunal – the Extraordinary Chambers in the Courts of Cambodia (ECCC). A team of United Nations prosecutors – among them Adelaide lawyer Bill Smith – successfully prosecuted their case against 83-year- old Kieu Samphan, the former regime’s head of state, and 88-year-old Nuon Chea, deputy to the late Pol Pot. Both men will serve life sentences. They are the second and third men to be convicted by the tribunal that has been described as a “hybrid” authority, blending international and Cambodian judicial authority. Nil Nonn, the tribunal’s chief judge, said both men were guilty of “extermination encompassing murder, political persecution, and other inhumane acts comprising forced transfer, enforced disappearances and attacks against human dignity”. Lawyers for Kieu Samphan and Nuon Chea have announced their intention to appeal the verdict.

TIMOR LESTE CONSTITUTIONAL REVIEW

OF NEWMEDIA LAWS Timor Leste president Taur Matan

Ruak has submitted a decree to Timor Leste’s Court of Appeal requesting a review of the constitutionality of the country’s new media laws. The laws were passed in parliament in May but are yet to be signed by the president. The constitutional review follows domestic and international concern over the apparent incursions upon freedom of expression contained in the new laws. Critics argue the laws are in breach of articles 40 and 41 of Timor Leste’s constitution. These articles uphold and protect the rights of the media and citizens’ freedom of expression. The Media Act is seen to contain conflicting provisions. The Act purports to protect “freedom of the press”, “freedom of expression” and “prohibition of censorship”, however other provisions are seen to be in conflict with these protections. For example, all domestic and foreign media reporting from Timor Leste will be required to gain registration from a government appointed “independent” press council. Overseas journalists will need permits to report from Timor Leste, and so-called citizen journalists will need permission from the council to report or express opinions through social media or blogs..

18 LSJ I SEPTEMBER 2014

UGANDA ANTI GAY LAWS

THAILAND TOUGHER SURROGACY LAWS New draft surrogacy laws in Thailand criminalise the involvement of surrogacy agencies, doctors and clinics in commercial surrogacy arrangements. No-one, including surrogate mothers and biological or intended parents, will be permitted to advertise about surrogacy for either commercial or non-commercial purposes. Under current Thai law, the birth mother or surrogate mother is considered the child’s legal mother. Whether that marriage must be according to Thai law is unclear, but the intention of the bill is reportedly to prevent overseas couples from becoming parents through surrogacy. The bill also stipulates that the egg and sperm must come from the intended couple only and the surrogate must have already had a child of her own and, if married, her husband’s consent is required. Only medical expenses would be payable to a surrogate mother under the draft laws. The bill does not actually criminalise surrogacy for commercial purposes, nor does it criminalise intended parents for the act of commissioning the surrogacy. However, if any of the parties is found to have advertised, they will be liable for up to 10 years imprisonment.

RUSSIA RUSSIA ORDERED TO PAY ALMOST 1.9 BILLION EUROS IN DAMAGES The European Court of Human Rights (ECHR) has awarded an unprecedented sum of damages – 1,866,104,634 euros – to the shareholders of Russian oil company Yukos. The ruling follows another order issued by the Hague Court of Arbitration that required Russia to pay Yukos shareholders US$50 billion by January 2015. The awards of damages have put added pressure on Russia’s already fragile relationship with the West. Shareholders first brought their claim to the ECHR in 2004. The verdict in their favour was delivered in 2011 but the record sum of damages has only recently been awarded. Yukos was liquidated in 2006 after chief executive o–cer Mikhail Khodorkovsky, then Russia’s richest man, fell foul of Vladamir Putin. Many of the company’s largest assets were transferred to state- run oil company Rosneft. Khodorkovsky, who served a 10-year sentence in a Siberian jail for tax evasion and fraud before being pardoned in December, will receive no part of the award of damages. The ECHR ruled that Russia’s handling of its tax proceedings against the company, and the penalties the state imposed, were “unlawful”. Russia said the ECHR ruling was “unfair” and plans to appeal.

UNCONSTITUTIONAL The Uganda Anti-Homosexuality Act, enacted in February, has been overturned in the country’s

Constitutional Court. Homosexuality is illegal in 37 countries in Africa, including Uganda. However, the penalties provided for in the Ugandan Act were some of the most draconian on the continent. The law outlawed the promotion of homosexuality, obliged Ugandans to denounce gays to the authorities, prohibited touching in public, and said homosexuals should be jailed for life. A number of European countries as well as the World Bank protested by suspending aid programs to Uganda worth US$118 million. Uganda reportedly relies on aid to fund about 20 per cent of its budget. While pre-existing anti-homosexuality laws are now expected to be revised and re-enacted, UN Secretary-General Ban Ki-moon has welcomed the ruling of the Constitutional Court as a “step forward” and a “victory for the rule of law”. The Guardian reported that the challenge to the law in the Constitutional Court was based on claims that it “violated the constitutional right to privacy and dignity, as well as the right to be free from discrimination and cruel, inhuman and degrading treatment”.

SEPTEMBER 2014 I LSJ 19

HOT TOPIC OPINION

TIME FOR DOMESTIC VIOLENCE COURTS Convictions for domestic violence have increased by 35 per cent in the United Kingdom due to the introduction of Specialist Domestic Violence Courts. With domestic violence reaching its highest level in NSW in 15 years, it’s time to consider the model, writes REBECCA BARRINGTON .

D omestic violence in NSW in December reached its highest level in 15 years, bucking a statewide decline in all other major o ences. e NSW Bureau of Crime Statistics and Research reports that, on average, 74 domestic violence assaults were reported to police each day with 28,000 victims involved last year. Annual crime data released in April showed a 1.9 per cent rise in domestic violence related assaults in the past ve years. e bureau believes up to half of all incidents go unreported and research by the Australian Institute of Criminology suggests at least half of all women have su ered domestic violence at some point. Rates of domestic violence are up to 11 times higher in regional and rural areas, the NSW Bureau of Crime Statistics reports. roughout the state when incidents are reported, the cyclic nature of domestic violence and the complexity of emotional pressures on victims mean that many victims at some point retract their statements or refuse to attend court to give evidence. e result is that very few perpetrators are brought

to justice, the cycle of violence continues and victims feel powerless. Domestic violence (DV) is a term that encompasses a broad range of abuses within a domestic context. It includes verbal and behavioural threats as well as abuse or violence of a physical, psychological, emotional, social, sexual or nancial nature. Victims most often are women and children, although as many as one third of victims are male. According to ABS data, only 17 per cent of victims physically assaulted by their current partner report the violence to police. Fewer than 20 per cent of these reports result in criminal charges and only a portion of those charges result in convictions. The UK model One model that appears to be working well in the United Kingdom is the Specialist Domestic Violence Courts (SDVCs) which were rst trialled in 2003. ere are now 137 SDVCs across the UK with these key aspects: • Trained Independent Domestic Violence Advisors (IDVAs) who act as a point of contact for victims

Rebecca Barrington works in the OŠce of the Director of Public Prosecutions in Toronto Drug Court in Newcastle. She researched domestic violence courts in the United Kingdom when she won the John Hennessy Scholarship last year.

Photography: Justin R Watson

20 LSJ I SEPTEMBER 2014

• Community-based penalties

throughout the legal system. Contact is made from the time a matter is reported to police and the IDVA o ers support until and after the court matter is nalised. IDVAs are considered pivotal to victim support and satisfaction and appear to play a role in deterring recidivism. • Separate entrances and exits for victims and accused persons at the courts to ensure safety of victims and increasing victim con dence when giving evidence. • Special training in dealing with DV for prosecutors, magistrates and legal advisors and a project co-ordinator who oversees each SDVC. • An operational team that includes an IDVA, specialist DV prosecutor, management or “steering” group to develop and monitor the SDVC comprised of representatives from each group delivering services at the SDVC. • Multi-Agency Risk Assessment Conferences (MARACs) which help assess the speci c risks each victim faces and attempts to manage those risks. police domestic violence o cer, representation from the court and a data administrator plus a

Viability of the UK model in NSW e NSW Criminal Justice System lends itself quite readily to the implementation of many of the key aspects of the UK system. e most signi cant costs involved in implementing a program in NSW similar to the UK arise in training and creating roles for IDVAs, project co-ordinators, management teams and MARACs. While the upfront costs would be signi cant, long-term savings are expected if the UK results can be mirrored. Savings would come from a reduction in recidivism and fewer failed prosecutions as well as early guilty pleas. e following recommendations for NSW are made based on the success of the UK model: 1. Insert provisions into the Criminal Procedure Act 1986 (NSW) in terms similar to Chapter 6, Part 5 to protect DV victims when they give evidence, and speci cally to allow victims to give evidence via CCTV/remote witness facilities. 2.Insert provisions into the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring judicial o cers to consider safety of victims when imposing community-based sentences for DV-related o ences. 3. Issue policies to court sta , WAS o cers and ODPP o cers requiring that the accused and victim do not enter and exit the court at the same time. 4.Engage domestic violence agencies and specialists to educate judiciary, solicitors and barristers and WAS o cers on the unique needs of domestic violence victims. 5.Commence a 12-month trial for a Specialist Domestic Violence Court in a target region. 6.Begin training social workers to work as IDVAs. 7. Develop a multi-agency MARAC- type team from various community agencies.

provided the victim’s safety is not put at risk. • CCTV/remote witness facilities for victims to give evidence. • Fast tracking and/or clustering of

DV cases with aim for trials to be listed within six weeks of a plea of not guilty.

The results e UK Crown Prosecution Service (CPS) reports that the number of domestic violence cases dealt with by the CPS has more than doubled since the introduction of the SDVCs. In that time, the percentage of convictions has increased from 55 per cent to 74.3 per cent, being an increase of 35 per cent. Further, discontinuance of DV prosecutions has almost halved. e Violence Against Women and Girls Crime Report reveals a rise in guilty pleas in DV matters with 68.5 per cent of cases resulting in guilty pleas in 2012. e data also reveals a drop in the number of cases that were unsuccessful due to victim retractions although further assessment is needed to determine if the drop is statistically signi cant.

UK DOMESTIC VIOLENCE DATA 2004 2012

Period

Volumes

% Convictions

% Discontinuance

2012 - 2013

70,702

74.3%

19.9%

2011 - 2012

79,268

73.3%

20.9%

2010 - 2011

82,187

71.9%

22.3%

2009 - 2010

74,113

72.0%

21.7%

2008 - 2009

67,904

72.2%

21.5%

2007 - 2008

63,819

68.9%

24.7%

2006 - 2007

57,361

65.2%

27.9%

2005 - 2006

49,782

59.7%

33.0%

2004 - 2005

34,839

55.0%

37.0%

SEPTEMBER 2014 I LSJ 21

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