LSJ - September 2016
ISSUE 26 SEPTEMBER 2016
TWEETS, HASHTAGS ANDJUSTICE THE POWER AND INFLUENCE OF SOCIAL MEDIA IS HUMANISING THE COURTS BUT AT WHAT COST?
THECASEFORDIVERSITY WHY CULTURALLY BLAND LAW FIRMS WILL LOSE OUT TO THOSE EMBRACING DIFFERENCE
SEEKINGTHERIGHT TODIEWITHDIGNITY THE PUSH TOWARDS A LAW FOR ASSISTED DYING EATINGTHE FROGFORBREAKFAST WHY IT’S BEST TO DO THE WORST JOB FIRST THE PROBLEMOF TEENMARRIAGE IN INDIA WHEN THE LAW DOESN’T MATCH PRACTICE THERISEOF BLOCKCHAINTECHNOLOGY A NEWWORLD OF SMART CONTRACTS
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Joanna Thomas reports on a university program in which law students are advocating for young girls being married o in India 24 HOTTOPIC Former Tamworth lawyer Trevor Kahn writes that it’s time for NSW to have new laws to allow the very ill to end their lives 26 INFOCUS Two UNSW academics question if a Royal Commission is the best way to tackle the problems in our juvenile justice system
Dominic Rolfe reports on how social media is drawing in our courts, lawyers and judges 34 yet Australian law firms remain culturally bland, writes Kate Allman 48 ADAY INTHELIFE THECASEFORDIVERSITY Diversity is a key ingredient for successful businesses, The wellbeing and mobility manager at King & Wood Mallesons, Vicki Irvine, shares her wisdom on new ways to deal with mental health issues among lawyers
lawyer David Ryan has learned exactly when to stomp on the brakes – whether he’s in the middle of a deal or racing his Porsche GT3 54 HEALTHYLIVING Nutritionist Joanna McMillan explains why adding legumes to your meals could go a long way towards ensuring a healthy diet. 58 THEBESTOFPERU Ute Junker unveils the very best of the Peruvian capital Lima and visits a drop-dead gorgeous retreat
ISSUE 26 I SEPTEMBER 2016 I LSJ 3
68 ADVOCACY: THE LATEST IN LAW REFORM 70 CORPORATE: HIGH COURT BANK FEES CHALLENGE 72 TECHNOLOGY: BLOCKCHAIN & THE LAW 75 TENANCY: DOMESTIC VIOLENCE REFORMS 76 PROPERTY: INTRODUCTION OF PRIORITY NOTICES 78 INTERNATIONAL: CHILCOT REPORT & AUSTRALIA 80 FAMILY: CHILDREN & GENDER DYSPHORIA 82 EMPLOYMENT: ACCESSORIES PERSONAL LIABILITY 84 ETHICS: ASSESSING MENTAL CAPACITY 86 CONTRACT: BANKING CODE OF PRACTICE 88 ADMIN: INCORPORATED ASSOCIATIONS CHANGES 90 EMPLOYMENT: OFF THE CLOCK SOCIAL MEDIA USE 92 RISK: LEGAL PROFESSIONAL PRIVILEGE & WAIVER 94 CASENOTES: HCA, FCA, CRIMINAL & FAMILY
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS 14 THE LSJ QUIZ 18 CAREERMOVES Who moved where this month 20 OUTANDABOUT 38 PROFILE Julie McCrossin speaks to legal academic and Star Wars fanatic George Williams 42 CAREERCOACH Fiona Craig’s tips to make you a better manager 44 CAREER101 Christian McMahon on working in Dubai
Fashion, etiquette, and tips on how to motivate your team
Why doing the worst job first boosts productivity
Improve your posture with these simple moves
Book reviews, events and our movie giveaway
66 NON BILLABLES
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ORGANISE YOUR STRESS don’t add to it Pre-order your Law Society Diary online from Monday 19 September 2016 Diaries will be delivered from Tuesday 1 November 2016 lawsociety.com.au/diary
A WORD FROM THEEDITOR
Lawyers and social media. What a combination. Fear around using mediums such as Facebook and Twitter has long been prevalent in most Australian law rms – and, I imagine, even more so in the judiciary. Dominic Rolfe’s cover story on page 28, “Tweet Justice”, is a fascinating insight into the slow but inevitable (if not reluctant) adoption by all facets of the legal profession, including the courts, of social media – and all the perks and perils that accompany it. e perks? It humanises the judiciary, and adds a very relatable,
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
human element to an institution which (and some will argue for very good reason) has traditionally been inaccessible and intimidating. e perils? How does the future of the judiciary look when a new generation of judges will emerge from a pool of digital natives whose every thought, sel e and slip-up has been captured for eternity on the internet? It’s fascinating reading. Finally, congratulations to the Law Society’s team of runners who conquered the City2Surf last month to raise money for the 2016 President’s Charity, Ovarian Cancer Australia. A very worthy cause made the pain of Heartbreak Hill worthwhile (or so I hear). If you didn’t get around to donating you can do so at lawsociety.com.au/donate.
Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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
Trevor Kahn is a lawyer who practised in Tamworth until enterning NSW Parliament in 2007 as a Member of the Legislative Council. He writes about a new Bill to allow the terminally ill to receive help to end their lives. Hot topic p24
Dominic Rolfe is a Sydney journalist. His cover story “Tweet Justice” deals with how the growing use of social media in courts, law firms and by judges is shaking up the stereotypes of an aloof and conservative legal profession. Cover story p28
Fiona Craig has more than 20 years experience training, and mentoring lawyers. In this issue she writes about the key ways sta at all levels can become better managers. “Silence is not a virtue when it comes to leading a team,” she writes. Career coach p44
Allysha-Jane Merrett is a family and criminal lawyer with Turnbull Hill Lawyers. She explores the current approach to determining child gender dysphoria cases in the Family Court and why there is a need for improvement. Family law p80
Cover illustration: Andy Raubinger
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 OCTOBER 2016
6 LSJ I ISSUE 26 I SEPTEMBER 2016
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ISSUE 26 I SEPTEMBER 2016 I LSJ 7
A t the LAWASIA Golden Jubilee Conference in Colombo in August, distinguished Australian lawyer Dr Gordon Hughes outlined what he regards as the top 10 challenges to human rights and rule of law principles confronting international law associations.
In his fascinating keynote speech, Dr Hughes identified a number of issues for the future such as the humanitarian crisis involving refugees and asylum seekers, the growing wealth gap and its impact on access to justice, the response to terrorism and the growth of invasive powers of investigation and surveillance, freedom of religion as a fundamental human right balanced with the manipulation and misinterpretation of religious ideology, and the need for a region-wide consensus on the use of capital punishment. I note that there are a number of parallels to be drawn between the issues and concerns raised by Dr Hughes in his Colombo speech and those
identified by our Chief Justice, the Hon Tom Bathurst AO, in his excellent Opening of Law Term address in February. Of particular note is Dr Hughes’ assertion that law associations and the legal profession must work to promote core values and humanitarian principles in order to counteract the threat to rule of law principles posed by the growth of populism as a political ideology. It is vitally important that representative organisations like ours are responsive to these and other emerging issues. To this end, the Law Society recently has undertaken a review of its policy committees to strengthen our expertise in a number of emerging legal and legal policy areas. With the establishment of a Public Law Committee, for example, the Law Society will be well positioned to respond to emerging constitution and administrative law issues, such as those associated with the Independent Commission Against Corruption and the NSW Crime Commission, as well as the preservation of core democratic principles such as rule of law and separation of powers. Our work on NSW CTP insurance scheme reform continues. A joint submission with the NSW Bar Association and the Australian Lawyers Alliance to the CTP Reform Reference Panel has proposed a scheme that is fairer to those with moderate and severe injury who are not at fault. The submission set out the legal profession’s proposal of an alternative three-part scheme structure with statutory no fault benefits, restricted common law benefits for those who can prove fault and are under the threshold for common law damages, and the current broader range of common law benefits for those who can establish fault and are over the approved threshold. I also would like to mention some recent events I was pleased to attend. This includes a visit by the Hong Kong Secretary for Justice, Rimsky Yuen SC JP. Mr Rimsky’s attendance at our recent managing partners lunch was a welcome opportunity for the NSW legal profession to foster closer ties with the Hong Kong legal sector. I also was delighted to welcome a large gathering of corporate lawyers to the Law Society for a networking event chaired by Law Society Treasurer Coralie Kenny at the end of July. Finally, I was pleased to speak at the official launch of the NSW Young Lawyers Mentoring Program on 28 July. This program is now in its ninth year and about 200 matched mentors and mentees attended the launch.
8 LSJ I ISSUE 26 I SEPTEMBER 2016
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ISSUE 26 I SEPTEMBER 2016 I LSJ 9
LETTERS TO THE EDITOR
Love the lifestyle Thank you for your prompt attention to my inquiry as to the non-arrival of the LSJ . It has been a looked-forward- to monthly arrival since my admission in May 1964. I have really enjoyed the new format with the inclusion of the lifestyle segment. I look forward to catching up on my missed reading. Peter Poulton appreciate reading the LSJ . I always find articles of interest in them, especially when it comes to historical issues. In earlier times, the Law Society Journal was very formal, and a little intimidating to read. Now, it is very modern and invites the reader to read more. Thank you, indeed. Dennis Cowdroy Time for diversity In my class when I studied at Sydney Law School – never mind when – you could count on one hand the number of women and, on the other, those from an obvious ethnic background, myself included – although a second generation ABC. Since graduation, I have noticed, as a part-time law tutor/teacher/lecturer/ examiner, that the pendulum has swung the other way that with those two groups now growing in strength if not tending to predominate. Yet, as Ray Steinwall observes (“When will we see cultural diversity in our Thanks for the read Just to say how much I
profession?, LSJ , August), the judiciary especially, remains “the least culturally diverse in our society”. Yes, it’s time to buck that earlier trend. After all, just as “ability has no gender”, equally, it has no ethnicity. Edward Loong, Milsons Point Dressed to impress I write to you to in regards to your section “Professional development” and in particular the regular piece “Dressed to impress” and what is, in my view, an emerging and concerning pattern. Let’s look at this piece just in the past few months and who has been featured: April: Bianca Barry, May: Erika Jasarevic, June: Blake Egelton, July: No piece, August: Renee Smith. So in the last five months alone you have featured three females and one male. Now personally I think that these kind of fluff pieces have no place in a professional journal, however, that’s just my opinion and so long as they do no harm, I really couldn’t care less; “Just turn the page” I hear you cry! However, as a female who has worked full-time and continuously as a lawyer in NSW for the past decade, I feel it is my responsibility to raise my concerns when I think a “fluff piece” is reinforcing the very stereotypes that continue to see women in this profession earning less than their male counterparts for doing the same work. By predominantly featuring
women in these pieces, you are focusing on their clothes, their looks and their sex appeal rather than their many accomplishments. You are reinforcing traditional male and female stereotypes and basically projecting a “woman first, lawyer second” attitude. The LSJ is a publication which in my view, usually sends positive messages to women by publishing articles on their many endeavours in the field and you should be commended for that. What I’m asking you to do is consider (or perhaps consider again) whether this piece contributes to those positive messages or detracts from them. Sian Aldis From the Editor: Since we launched this page, we have featured six women and four men (including Peter Milevski in July). Yes, we focus on clothes because that is the key point of the section which, as an aside, was started after advice from senior partners wanting to help younger lawyers learn to dress more appropriately. Important perspective Re Kate Allman’s article on Juvenile Offenders (“Ending the cycle of recidivism”, August LSJ) , the topic is definitely not something I have thought much about, and probably wouldn’t have had it not been staring me in the face. Not only is the feature wonderfully written, it is such an important perspective to
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22/07/2016 11:26 am
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! Tia Singh has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 26 I SEPTEMBER 2016
It is not correct to say that outgoings are usually borne by the remaindermen. Mr Browne in saying this has been led astray by paragraphs 51 and 52 of the judgment of Slattery J in Finlay v Tucker  NSWSC 560 but, with respect to my old colleague, he is not correct in this. The clear rule is that in the case of a life estate, outgoings are paid by the life tenant, not the remaindermen. It could hardly be otherwise. The remaindermen may not take in possession for many years. It is of course possible in the case of an equitable life interest in a settled estate to provide for outgoings to be paid out of the income and/or capital of the residue of an estate. But unless express provision is so made outgoings must be paid by the life tenant: see Heydon and Leeming, Jacobs: Law of Trusts , 7th ed at [19:6] and the authorities listed there; Glover: Capital and Income between Life Tenant and Remaindermen , 3rd ed 65. Any reader who has read this far might like to read the 1791 case of Fontaine v Pellett 1 Ves Jun 338; 30 ER 374 which held that the words “To have, hold, occupy, use and enjoy” gave an equitable life estate, and that the person holding that estate was responsible for outgoings. It is not, I think, possible to have a “portable life estate” as Mr Browne suggests. If a life tenant surrenders his interest the interest of the remaindermen is accelerated. A life tenant cannot switch
be shared instead of further stigmatising and stereotyping juvenile offenders. Thank you for sharing that perspective. It could be considered a touchy issue, considering that we tend to group “criminals” together, but the story sheds light on the important of second chances for the younger generation who can easily get caught in a dark and sinister spiral. Tia Singh Wording counts I read with interest the article of Darryl Browne on page 82 of the June LSJ . I agree with him that the important thing is to get the wording right, but there are a few points I would like to make. It is important to bear in mind the difference between legal and equitable interests. By far the most effective way of creating a legal life estate is to use the words “I give Blackacre to A for life and after his death to B” . If a trust is interposed in a settled estate this can be changed to “I give Blackacre to my trustee upon trust for A for life and after his death to B” . In the case of a legal life estate, the Registrar General will issue separate titles for the life interest and the remainder interest. If this scheme is followed, there is no need to use or include words such as “use and occupation of A during his life” although those words used together are enough to give a life estate “use” giving the right to rent the property and “occupy” the right to live in it.
properties. But as Mr Browne suggests Crisp-type provisions are very useful. These provisions give rise to equitable rights what are really rights of residence in homes or other accommodation which can be varied from time to time, depending upon the changing needs of the beneficiary. In such cases a trustee will be involved. Care needs to be taken in providing whose consent or direction is needed to trigger the variation in accommodation. A life tenant is not bound to insure. Neither is a remainderman. Both have insurable interests. In the case of a settled estate section 41 of the Trustee Act 1925 (NSW) provides that a trustee may insure in which case the premiums are charged against income. Section 42 provides
for the application of insurable moneys. However, a trustee is unlikely to insure if there is no income from a property where a life tenant is in possession and there is no other estate property subject to the same trusts from which income to pay premiums is available. In the case of a right of residence as opposed to a life estate it is wise to make express provision as to payment of outgoings, including, if desired, insurance premiums. If such payments are to be borne by the occupant then this can be achieved by making the right to reside conditional upon payment. This would operate as a condition subsequent, breach of which will extinguish the right. I think that the general topic of insurance deserves a separate article. W.V. Windeyer
ISSUE 26 I SEPTEMBER 2016 I LSJ 11
Kirby calls for international lawreformtoprotect human right tohealth BY KATE ALLMAN
LEAVEA LEGACY FOR CHARITY
What happens when there is a clash between the
Solicitors are being urged to encouragemore people to leave charitable donations in their wills, through September’s Include a CharityWeek campaign. More than 100 charities are uniting to promote Include a Charity Week from 5-11 September. The campaign, run by Australian organisation Include a Charity, hopes to increase the percentage of people who remember charities among the beneficiaries in their wills from 7.5 to 15 per cent of Australians by 2020. Wills and estates lawyers are being asked to help achieve this target by mentioning charities as an option when preparing wills for their clients. According to Include a Charity, clients are twice as likely to include a charitable gift in their wills when their solicitor mentions charities as an optional beneficiary. While 70 per cent of Australians support a charity in their lifetime, only 19 per cent consider making a charitable bequest and just 12.5 per cent actually do. Events will be held in Sydney on Friday 9 September, starting with an 8am breakfast seminar in the CBD and followed by a workshop for campaign supporters. For more information and to register go to eiseverywhere. com/ehome/index. php?eventid=188083&
Kirby gave the example of a drug that could completely cure Hepatitis C if taken correctly for a 12-week course. It has been called a “miracle drug”, and has the potential to save millions of lives in what is a serious global epidemic of Hepatitis C. Kirby said the problem was that the company with the licence for the drug was entitled to sell it for different prices around the world. “In Egypt it is sold for $800 for a 12-week course,” Kirby said. “This is a huge amount for Egyptians – and there is a terrible Hepatitis C epidemic there. In Australia, the same drug is, fortunately, on our pharmaceutical benefits scheme, but is estimated to cost the government around $55,000 per course. In the USA, on the free market it can cost up to $78,000. The actual cost of manufacturing the drug is about $80.” The high-level panel on access to medicines has 16 members from eminent positions in world politics and healthcare. It is co-chaired by Ruth Dreifuss, former President of the Swiss Confederation, and Festus Gontebanye Mogae, former President of the Republic of Botswana who saw Botswana become the first African country to provide free antiretroviral treatment for HIV/AIDS to its citizens. Kirby said the panel was compiling a report on its investigations, but had not yet presented the report to the UN Secretary-General. He said he would be “very happy” to return to UNE next year to give a full update on the response from Ban Ki-moon once the report had been tabled. “That is the story as it is,” said Kirby. “If we come up with a report that makes suggestions for changes to the current agreements and world trade industry, then there will be a lot of opposition and nothing may then get done. “The high-level panel needs to come up with a way to fairly re-jig and re-balance the right for inventors to have access to proper rewards for their inventions, as well as allow people who are seriously ill to have access to drugs that are essential to their life and health.”
intellectual property rights of inventors to sell medical products and the international human right to health?
It is a contentious question that involves large sums of money and legal and political controversies, according to former Justice of the High Court, the Honourable Michael Kirby, pictured. The conflict between international trade laws and universal access to essential healthcare was the focus of a lecture by Kirby at the University of New England (UNE) in Armidale last month. Kirby visited UNE Law School on 8 August to discuss his involvement with a high-level United Nations panel on access to essential healthcare. UN Secretary General Ban Ki-moon convened the panel in November last year with the objective to investigate policy conflicts between trade laws, international human rights law, intellectual property law and the rights of inventors in the context of developing health technologies. “International human rights law guarantees the right to health to be accorded to people by gradual steps of international governance,” Kirby said. “Unless we protect the right to health, we are in breach of another branch of law, namely the international law of human rights.” The difficulty in protecting the right to health is that international trade law and agreements under the World Trade Organisation vehemently protect the right of inventors to retain intellectual property rights over their invention. So, developers of medicines, vaccines and diagnostic technologies can determine the price of those technologies, even if they become prohibitively expensive. The unfortunate result, Kirby said, was that essential healthcare had become unaffordable in developing countries that desperately needed it.
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The LawCouncil of Australia has launched a landmark new Equitable Briefing Policy aimed at improving the briefing of female barristers in Australia. The policy includes a target for lawyers and firms to brief women in at least 30 per cent of matters and for women to be paid at least 30 per cent of the value of all brief fees in Australia by 2020. The impetus for the Briefing Policy was sparked by data from the Law Council’s National Attrition and Re-engagement Study (NARS) report, which found that only 16 per cent of practising female lawyers would consider working at the Bar. The report also found that female
barristers were twice as likely as those in private practice or in- house roles to experience sexual harassment in the workplace, and were more likely than other women to report experiencing discrimination due to gender, bullying or intimidation, and discrimination due to family/carer responsibilities. Other statistics from the NARS report highlight the lack of gender and cultural diversity in the Australian legal profession, (see our feature story on page 34 for more). To read the Equitable Briefing Policy, go to lawcouncil.asn.au/ lawcouncil/images/Nat_Model_ Gender_Eq_Briefing_Policy.pdf.
Source: Law Council’s National Attrition and Re-engagement Study (NARS) report
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ISSUE 26 I SEPTEMBER 2016 I LSJ 13
Cross-examination Test your legal knowledge ...
On 14 July 2016 and pursuant to s.334 of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Anthony Neary Walker, solicitor, as the manager of the law practice formerly known as Archer Legal Pty Ltd for a period of two years. On 21 July 2016 and pursuant to s.334 of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, solicitor, as manager of the law practice formerly known as BMF Tax Legal Pty Ltd for a period of two years. On 21 July 2016 and pursuant to s.334 of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, solicitor, as manager of the law practice formerly known as Bizannes & Associates for a period of two years. On 26 July 2016 and pursuant to s.334 of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, solicitor, as manager of the law practice formerly known as Pei Sze Tee T/A NSW Solicitor for a period of two years. On 29 July 2016 , the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of George Pikoulas be removed from the roll of local practitioners, and that he pay the costs of the Council on the ordinary basis as agreed or assessed. PROFESSIONAL NOTICES
1. Who was the first female Crown Solicitor in NSW? 2. In what year was she appointed? 3. Which section of the Racial Discrimination Act 1975 outlaws offensive behaviour related to “race, colour or national or ethnic origin” and has been a source of recent public debate? 4. What does “MDT” stand for in the context of roadside police testing? 5. Name the Australian lawyer who recently won a gold medal in a rowing event at the Rio Olympics. 6. Which particular event did she win? 7. According to the Marketing of Potatoes Act 1946 , how many kilograms of potatoes can a person legally grow in Western Australia? 8. In which Australian State will Uber become legal from 5 September? 9. Name one of the five new judges appointed to NSW District Court in August. 10. In Australia, what is the fine for not completing a census on time? Answers on page 65.
PRE-ORDERTHELAW SOCIETYHISTORY BOOKANDSAVE Save $5 and be the first to read Defending the Rights of All: A History of the Law Society of New South Wales. The book published by the Law Society and written by Michael Pelly and Caroline Pierce will be launched on 17 October. You can now pre-order the hardcover book, which includes more than 250 historic photographs. Visit lawsociety.com.au/defendingtherightsofall to order the book for $35 in a pre-launch special offer for Society members.
14 LSJ I ISSUE 26 I SEPTEMBER 2016
Newthree-year strategicplan for LawSociety
The Law Society of NSWhas unveiled its strategic plan for 2016- 2019, listing new objectives to take over from the previous plan for 2013-2016. The new strategic plan lists four objectives for the Law Society based on regulation, advocacy, membership and sustainability.
“The strategic plan is a vital roadmap for the society as it builds for the future,” said Law Society CEO Michael Tidball, pictured. “The Law Society’s primary remit as a co-regulator held in high regard, and as a high value membership organisation, can only be realised if it has a clear direction. The strategic plan is developed in such a manner that it allows for a future, and allows us to respond to the presidential programs from year to year, as well as the ongoing role of council within the three- year period in driving the strategic direction of the organisation. “The simpler format of the new strategic plan captures the very clear raison d’être of the Law Society across the areas of regulation, advocacy, membership, and sustainability. These areas have been foundational in forming the Law Society’s legacy and they will be the key determinants of its future.”
Actions such as “promote and protect the rule of law” and “provide regulatory leadership and oversight of the legal profession” are listed as strategies that will be employed to achieve the targets.
LAWFIRMS “LOOKDEEPER” INTOMENTALHEALTH
Eighteen of Australia’s top lawfirms have joined forces to partner in RUOK’s 2016 “LookDeeper” campaign to raise awareness aboutmental health issues in the legal profession. The year-long campaign asks practitioners to start a conversation with colleagues about mental health, starting by asking the simple question, “Are you okay?” “Look Deeper” was spurred by the annual awareness event of R U OK Day, held on the second Thursday of September, but specifically asks law firms to “look deeper” than this simple question, which is often brushed aside by those who need help. “This campaign is about helping people understand that you don’t have to say you are fine if you actually aren’t,” said Alan McArthur, Managing
Partner at partner law firm DibbsBarker. “And if someone else tells you they are ‘all good’, you don’t have to accept that at face value if your gut tells you there is more to the story.” According to the Law Council of Australia, lawyers experience the highest incidence of depressive symptoms of any profession. A survey by Beaton Global in 2011 found that lawyers are four times more likely to experience depression than other professions. (For more, see “Day in the Life” on page 48.)
For more information and to read the facts on mental health in the legal profession, visit lookdeeper.org.au
ISSUE 26 I SEPTEMBER 2016 I LSJ 15
mind your ethics
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
For the full round-up of Law Society advocacy, see page 68.
AGENTLEREMINDER FORSOLICITORS BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR
Sexualisationof youngpeople The Juvenile Justice Committee provided a submission to the NSW Parliament Joint Committee on Children and Young People Inquiry into the sexualisation of children and young people. The submission raised several concerns with the current legal framework on sexting. The committee considered that children can be disadvantaged by the current law’s treatment of consensual sexting as this act between children is captured under NSW “child abuse material” legislation and Commonwealth “child pornography” legislation and is a registrable offence. The committee also noted the variation in penalties for children as compared with adults for consensual and non-consensual sexting, and the variations as to the age of consent across Australian jurisdictions. NSWCTP insurance scheme reform The Injury Compensation Committee provided a joint submission with the NSW Bar Association and the Australian Lawyers Alliance to the CTP Reform Reference Panel. The legal profession noted that it opposed the abandonment of the current NSW CTP scheme and its replacement with an inadequate and unfair workers compensation-style model. The submission outlined several problems with the Government’s proposal, including the long-tail scheme design, the design “cliff” at 10 per cent whole person impairment (WPI), and the significant restraints placed upon legal representation. Statutory reviewof the Victims Rights and Support Act 2013 The Injury Compensation, Juvenile Justice, Human Rights and Indigenous Issues committees provided a joint submission to the NSW Department of Justice on the statutory review of the Victims Rights and Support Act 2013. The committees reiterated the Law Society’s concerns in its 2014 submission, and outlined a number of other issues. The committees queried whether the level of support under the Act was adequate.
Whether a solicitor is appearing in court, dealing with clients or other members of the profession, there are some fundamental duties that must be upheld with regards all aspects of legal practice. Some of these fundamental duties can be found in the contents of Solicitors’ Rule 4 and should be carefully noted (See www.lawsociety.com.au/ForSolictors/professionalstandards/ Ruleslegislation for details). Rule 4 - other fundamental ethical duties A solicitor must also: 4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client; 4.1.2 be honest and courteous in all dealings in the course of legal practice; 4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible; 4.1.4 avoid any compromise to their integrity and professional independence; and 4.1.5 comply with these rules and the law. It should be noted that “…to be honest and courteous in all dealings in the course of legal practice…” addresses a wide application of conduct for a solicitor to comply with. Regrettably, many accepted courtesies are being ignored or forgotten and represent an unwanted erosion of professional standards in the legal profession. Any communication between a solicitor and the court should be with proper formality and respect for court processes. Communication between solicitors should always be in a professional and courteous manner with due regard for prompt and timely reply to correspondence, the avoidance of inflammatory or insulting remarks and be relevant to proceedings. Communications with clients should also be to the required standard of a courteous and professional manner stated in Rule 4. By recognising and upholding these required standards, the additional duties of integrity and professional independence can be properly maintained. With the ever increasing size of the legal profession, it now is more important than ever to maintain the high standards of conduct by all solicitors in the course of legal practice.
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six minutes with
RICHARD LORD TRAFFIC SAFETY AND SECURITY DIVISION, 3M
As head of the Traffic Safety and Security Division at 3M Electronic Monitoring, Richard Lord is in charge of the company’s Private Electronic Monitoring Bail program. The program invites defendants to agree to electronic monitoring as a condition of bail, and can be an assurance to judges who are considering whether to award bail to an offender at risk of flight or committing further offences. Lord explains the technology to KATE ALLMAN .
Why might a defence lawyer choose to apply for electronic monitoring as a condition of bail? While electronic monitoring will not necessarily stop someone from committing an offence, it is a very strong deterrent and is proven to reduce the risk of non-compliance for defendants on bail. This includes not only the risk of committing an offence, but also the risk of flight and the risk of interfering with the court process. The defence lawyer’s client will stand a better chance of being granted bail if he is prepared to pay at his own cost to be electronically monitored (along with other bail conditions). How does the technology work? The monitoring system is a two-piece ankle tag with a GPS tracking system that uses radio-frequency identification (RFID) to positively identify the client. The Central Monitoring System (CMS) can define specific inclusion zones for that tag (such as a house or suburb area) that may also bear a curfew period (for example, to be at home overnight). The system can also nominate exclusion zones that the client cannot go near, which is useful in circumstances of alleged domestic violence or in relation to an apprehended violence order. If a defined violation occurs (such as tampering with equipment, breaking a curfew, or moving out of an inclusion zone or into an exclusion zone) the unit “While electronic monitoring will not necessarily stop someone from committing an offence, it is a very strong deterrent and is proven to reduce the risk of non-compliance for defendants on bail.”
will immediately notify the CMS of the violation and the monitoring police officer will receive an SMS and an email within about 20 seconds. For example, if a defendant is not home by curfew, the officer will receive an SMS notification at curfew time. Another notification will be sent when (or if) the defendant reaches home. Whomonitors it? The system is monitored by 3M and generates alerts should the defendant breach any of their bail conditions, attempts to tamper with or remove their tag, if the GPS device is low on battery or if it is separated from the RFID tag. Both 3M and the police case officer receive notification of these alerts via SMS and email. How successful is the technology at increasing the chances of a defendant getting bail? It will not guarantee bail for any client, but it is definitely an additional condition available to the court that will increase a defendant’s chances. During the program’s five years of operation, about 20 defendants have been granted bail to be monitored by 3M as part of their bail conditions. This includes defendants accused of serious indictable offences, including homicide, solicit to murder, drug trafficking and terrorism-related offences.
ISSUE 26 I SEPTEMBER 2016 I LSJ 17
Briefs CAREER MOVES
MEMBERS ON THE
CLAUDIATAYLOR Joined as Solicitor, Family Law Elliot Tuthill Solicitors
RAYTRAVERS Appointed to Managing Partner Pigott Stinson
DANIEL FLEMING Appointed to Partner, Litigation Pigott Stinson
MICHAELKISSANE Joined as Consultant, Family Law Owen Hodge Lawyers
MATTHEWWILSON Promoted to Partner, Banking & Finance Kemp Strang, Sydney
ADRIANMUELLER Appointed to Partner JS Mueller & Co
CARMENTHOMSON Joined as Director Sautelle White Lawyers
CHRISPLUMMER Joined as Consultant, Business Law Owen Hodge Lawyers
MICHAELDEMESTRE Promoted to Senior Associate John de Mestre & Co Pty Ltd
JAMESWANT Joined as Senior Associate Roberts Legal
TIJANAPETKOVIC Appointed as Director Blanchfield Nicholls Partners Family Law
MICHAELMALLEY Elected Vice President The Eastern Suburbs Law Society
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: email@example.com
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stice James Dowling in 1842, tablish courts without lawyers ny of New SouthWales. l group of legal gentlemen to create profession’s honour, independence and fair and liberal practice therein”. ll group of men has grown to close ng as solicitors in New SouthWales.The gh,works to the same ideals – upholding on,ensuring the administration ending the rights of all. of society if it were not for stration of justice? be separated from the law? sional man to whom of the law is entrusted? stice James Dowling in 1842, tablish courts without lawyers ny of New SouthWales. l group of legal gentlemen to create profession’s honour, independence and fair and liberal practice therein”. ll group of men has grown to close ng as solicitors in New SouthWales.The gh,works to the same ideals – upholding on,ensuring the administration ending the rights of all. of society if it were not for stration of justice? be separated from the law? sional man to whom of the law is entrusted?
THE RIG TS OF ALL
THE RIGHTS OF ALL
A History of the Law Society of New South Wales
Imagebottom:SydneyCove1855 CourtesyMitchellLibrary, StateLibraryofNewSouthWales
MICHAEL PELLY & CAROLINE PIERCE
Imagebottom:SydneyCove1855 CourtesyMitchellLibrary, StateLibraryofNewSouthWales
MICHAEL PELLY & CAROLINE PIERCE
Briefs OUT AND ABOUT
LARGE LAWFIRMPARTNERS LUNCH Rimsky Yuen, Secretary for Justice of Hong Kong , spoke to the managing partners of large law firms at an event at the Law Society on 9 August. PHOTOGRAPHY: CHRIS GLEISNER
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OUT AND ABOUT
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ISSUE 23 I JUNE 2016 I LSJ 21
ISSUE 26 I SEPTEMBER
Briefs GLOBAL FOCUS
With the help of a Hindi speaking team leader from Melbourne it became a support system necessary to face the pollution, sickness and intensity of Bollywood. But most importantly, it helped us cope with the constant reminders and experiences of the shocking poverty and inequality that seems to define India. Child marriage has been illegal in India since 1929, with the legal age of marriage 18 years for women and 21 for men. The Prohibition of Child Marriage Act 2006 (PCMA) was created in an attempt to enforce the illegality of child marriage. Under the PCMA, each state is required to appoint a child marriage prevention officer who has an extensive list of duties, including educating the local population and investigating any potential marriages. These duties are consistently ignored and in many states officers have not been appointed. However, the locals are generally aware that child marriage is illegal and they are highly suspicious of outsiders asking questions. Offenders include those supporting or arranging the marriage, and it is punishable by up to two years in prison and/or a fine of up to 2 lakh (about $A4,000). However, the marriage itself is not immediately void. A child must petition the court within two years of reaching their majority (18 for women and 21 for men). It is a system that relies on the non-existent independence and legal access of the children. Our conversations around the village became a balance of casual interest, and circumspect inquiries. As well as using the “sugar”, having me taking notes and photos. We found the villagers had only limited knowledge of the legal consequences and, despite recognising that child marriage was illegal, there was a cultural and traditional acceptance
CHILD MARRIAGE IN INDIA: Legal challenges of a social issue
Child marriage has been illegal in India since 1929, with the legal age of marriage 18 years for women and 21 for men. However, JOANNA THOMAS discovered on a university placement in Uttarakhand in India’s north that many girls marry younger than 18 and that four in 10 aged 15-19 are pregnant.
A fter a six-hour train trip, a two-hour drive and a hike up a mountain I found myself in the village of Uttarakhand, Northern India. Nepal is only a valley away and the density of Delhi is almost forgotten. The air is fresh but the sun is finally out and I’ve been told my purpose is to be the “sugar”. My duty in this all- important role is to attract locals by standing around, being friendly, and most importantly, being white. As a foreigner, I have everyone’s attention and the willingness to talk (or at least have a good look at me) which is essential to finding cases of child marriage in this area. Uttarakhand is a northern state of India, with a population of 10 million. India’s population stands at 1.3 billion. The 2011 Indian census reported there are 5 million girls in India who were married before they reached
15. In Uttarakhand, the 2012-13 Annual Health Survey by the Indian Government found that 18.5 per cent of women 20-24 are married and 39 per cent of women 15-19 are mothers or pregnant. This fact-finding mission was part of my work with the Human Rights Law Network (HRLN) in Delhi, India. HRLN is a collaboration of lawyers and social activists who work with individual clients and in broader issues in nationwide human rights violations. For two months, my focus was the issue of child marriage and included first-hand research, report writing and submission drafting. The internship was part of the compulsory participation unit at Macquarie University where I am studying law. After an application and interview process, I joined 11 students and we were placed in different human rights organisations around Delhi.
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