LSJ - September 2017
ISSUE 37 SEPTEMBER 2017
APROCESS FOR HOPE ANDHEALING HOW TWO LAWYERS HAVE REVOLUTIONISED JUSTICE FOR MORE THAN 850 TRAUMATISED CLIENTS
HAVINGABELLYLAUGH AUSTRALIAN JUDGES ON WHY HUMOUR IS ESSENTIAL ON THE BENCH
MOVINGTOWARDS RECONCILIATION LIFE BEYOND THE ULURU STATEMENT THE TRIBULATIONSOF TABLOIDMEDIA WHY CRIME REPORTING IS FAILING EATINGDISORDERS ANDTHECOURTS COERCIVE TREATMENT ORDERS WOULDYOUSPONSORAREFUGEE? A FRESH APPROACH TO A BIG ISSUE
TOO MUCH TO DO? LET US HELP.
Your legal solution partner – 24/7, 365 days a year.
Ǿ Guaranteed quality assured work Ǿ Secure and confidential practice to protect you and your clients Ǿ Complimentary collection and delivery of jobs within CBD
Production — Print
Discovery — Consulting
— Court Copying — Mediation — Arbitration — eTrial — eCourt — Appeal Book Preparation
— Copy — Scan — Coding
— Data Collection — Early Case Assessment — Secure Document Hosting — Technology Assisted Review — Managed Discovery
1300 096 216 firstname.lastname@example.org www.lawinorder.com
CONTACT US TODAY FOR A COMPLIMENTARY CONSULTATION AND COST ESTIMATE
Sydney – Brisbane – Melbourne – Perth – Singapore Join over 5,000 lawyers globally supported by Law In Order.
50 ADAY INTHELIFE DLA Piper General Counsel Amber Matthews explains her work in corporate law, including managing the recent cyber attack that hit the firm 52 EXTRACURRICULAR Gilbert + Tobin solicitor Paul McDonald tells why he ran 250km across the Simpson Desert 54 TURNINGBADTOGOOD Joanna McMillan o ers some simple food swaps worth trying
A look at the contentious area of scandalous trade marks and what a recent case means for Australian law 28 HOTTOPIC Nicholas Cowdery tackles the issue of tabloid news reporting on criminal law 30 COVERSTORY Child sexual abuse survivor John Ellis and his wife Nicola explain their work advocating for survivors
Two legal academics from UNSW give an update on the push to recognise Indigenous Australians in the Constitution 40 NOLAUGHINGMATTER How appropriate is humour in the courtroom? Kate Allman puts judges in the witness box 44 ASKFIONA Tears in the o ce? Career expert Fiona Craig o ers some advice for how to move on
ISSUE 37 I SEPTEMBER 2017 I LSJ 3
49 LIBRARYADDITIONS 57 PSYCHE We can’t all be 10s. The bell curve of reality 56 FITNESS Take care of your knees with these exercises 58 TRAVEL Iceland’s capital Reykjavik and a luxury lagoon worth your while 64 LIFESTYLE Book reviews and our movie giveaway 66 NONBILLABLES
68 ADVOCACY: THE LATEST IN LAW REFORM
6 FROMTHEEDITOR 8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 23 EXPERTWITLESS 23 THE LSJ QUIZ 44 CAREERCOACH 46 CAREER101
70 RISK: WHEN IT’S UNWISE TO ADVISE
71 NATIVETITLE: TIMBER CREEK COMPENSATION APPEAL
74 HUMANRIGHTS: PRIVATE REFUGEE SPONSORSHIP
76 ELDERLAW: BINDING DEATH BENEFIT NOMINATIONS
79 TECHNOLOGY: CRYPTOCURRENCY TOKEN SALES
82 PROPERTY: CONTRACT FOR SALE OF LAND CHANGES
84 CRIMINAL: TENDENCY EVIDENCE & THE HIGH COURT
86 MENTALHEALTH: ANOREXIA & COERCIVE TREATMENT
Jamie Ng made partner at 31 and is still one of the youngest partners of global firm Ashurst
88 CARE&PROTECTION: SOCIAL MEDIA & PRIVACY
Meet cycling lawyer Sophie Chesterton 106 AVIDFORSCANDAL Dating guru Floyd
90 FAMILY: RELIGIOUS DIVORCE & THE FAMILY COURTS
92 EMPLOYMENT: RECOVERY FROM DIRECTORS
Three ways to network, plus Susanna Abdollahi’s office style
94 EMPLOYMENT: VOLUNTEERS’ RIGHTS & LEGAL STATUS
Alexander-Hunt offers a love test for lawyers
95 CASENOTES: FCA, FAMILY, CRIMINAL & WILLS
4 LSJ I ISSUE 37 I SEPTEMBER 2017
CLIENTS RECEIVE VIDEO EMAILS FROM YOU CARRYING YOUR LOGO
CLIENTS WATCH A SHORT VIDEO EXPLAINING KEY ESTATE PLANNING TERMS
CLIENTS COMPLETE AN ONLINE QUESTIONNAIRE AT A SECURE SITE
CLIENTS SPEND 30-45 MINUTES AT HOME
ASTUTE INFORMATION GATHERING
ALL INFORMATION IS THERE, READY AT THE CLIENT MEETING
ASTUTE SOFTWARE DELIVERS AN ENGAGING PRESENTATION
VISUALS HELP EXPLAIN COMPLEX ISSUES AND STRUCTURES
Entities & Assets
Structure & Beneficiaries
* FACILITATOR AND CLIENTS MEET FOR APX 60 MIN
ASTUTE MEETING TOOLS
BRIEFING DOCUMENT IS AUTO-GENERATED
CLIENTS CONFIRM THEIR WISHES
WILLS AND ESTATE DOCUMENTS DRAFTED
ASTUTE BRIEFING DOCUMENT
DOCUMENT GENERATED WITH ONE CLICK
A WORD FROM THE EDITOR
ere are so many unsung heroes hiding within the legal profession, waiting to be unearthed. John and Nicola Ellis are but two. e authors of this month’s cover story, “Helping heal sins of the past”, on page 30 have represented more than 850 survivors of child sexual abuse. John and Nicola have not only given their lives over to ghting for justice, but they have transformed the very process adopted in the pursuit of justice. e Ellis Process, as it has become known, is an innovative and invaluable tool for lawyers dealing with traumatised clients. e
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen
sheer passion, humility and dedication with which the Ellis’ go about their daily work is humbling, to say the least, and there are so many lessons for all lawyers unearthed within the article. Speaking of legal heroes, the Law Society is calling for nominations for the 2017 President’s Medal. Find out more information online: lawsociety.com.au/PresidentsMedal. On a lighter note, the article on page 40, “No laughing matter”, is a rare glimpse into the cloaked world of the judiciary. Former judges Kirby and Mason deliver some giggle-worthy anecdotes from their time on the bench (the ones we could publish, anyway). It’s a refreshing reminder that judges are human, just like us, and nd themselves biting their tongues on occasion. Kirby’s courtroom doodles provide an extra layer of enjoyment to what is a frank discussion about something we could all use a little more of – laughter. Enjoy!
Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
KATE ALLMAN Feature p40
JOHN AND NICOLA ELLIS Cover story p30
GABRIELLE APPLEBY Feature p36 With her public law colleague Gemma McKinnon, Gabrielle, details what’s next for Indigenous recognition in Australia since the First Nations Convention at Uluru at the end of May. a UNSW Associate Professor of Law,
LEONIE FLYNN Native Title p71 Leonie is a senior expertise lawyer,
Kate is a journalist who studied law and reports on a range of issues for the LSJ . This month she interviews former High Court justice Michael Kirby about judges making jokes in court, and exposes some of Australia’s best banter from the bench.
John and Nicola have represented more than 850 survivors of sexual abuse. They detail a new process for how solicitors and the courts treat survivors and share their passion for their work in the law.
providing support to the national resources & utilities team at Ashurst. She discusses the Full Federal Court’s recent appeal decision in Australia’s first native title compensation case.
27,325 * *AUDITEDMARCH2017 DISTRIBUTION
NEXT ISSUE: 1 OCTOBER 2017
Cover image: 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 email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
6 LSJ I ISSUE 37 I SEPTEMBER 2017
CPD reimagined. Coming soon...
his month marks the launch of the Law Society’s Just Art exhibition at Gauge Gallery in Glebe from 6 to 16 September. We are delighted that special guest artists Wendy Sharpe and Jane Gillings will open the exhibition and present the artists’ choice award on the opening night. The exhibition unleashes a spectrum of artistic endeavour never seen before from the legal community. The similarly high calibre of compositions submitted to our musical competition, Just Music, are set for a sensational showcase of rap, rock, jazz and classical at City Recital Hall on 28 September, with a special guest performance by world-renowned Australian indie pop artist Lenka. These events unify us in celebrating the creativity of the legal profession and our common purpose: defending the rights of all. Just Art and Just Music aim to help address one of the most pressing problems facing our society – the disadvantage faced by Aboriginal and Torres Strait Islander people. The events will raise funds for Bara
Barang Corporation Ltd, the 2017 charity of choice for the Law Society. Empowering communities and self-determination are key to addressing disadvantage. Despite the hardships and challenges, Aboriginal and Torres Strait Islander people continue to strive for equality. Many factors contribute to self-determination. The Uluru Statement from the Heart and the guiding principles agreed by Aboriginal and Torres Strait Islander delegates at the Constitutional Convention on 26 May was a watershed towards the recognition of Indigenous people in the Australian Constitution. The Law Society commended the NSW Government’s draft legislation to recognise and protect NSW Aboriginal languages as an important act for reconciliation. Many disadvantaged people across the nation rely on the community legal sector for help in accessing legal advice and services. The rise in the number of people turned away from community legal centres around Australia is of deep concern, particularly as a lack of resources was the main cause cited in 75 per cent of cases. Numbers refused rose to 169,513 people last year, from around 159,220 in 2015, as revealed in the recent National Census of Community Legal Centres. These startling figures expose the ramifications of underfunding and the imperative for greater investment. Community legal services and Legal Aid are straining under the pressure of increased demands. The human cost is more vulnerable people left in distress, with nowhere else to go. The injection of $61.7 million by the Federal and NSW governments in April was a welcome recognition that help was needed, but only sustained funding can deliver the certainty the legal assistance sector needs to address these problems. The alternative is a further reduction or closure of some services and even more people left in crisis. The Law Society is an active supporter of LAWASIA, as the primary international law organisation of our region, and upcoming events include the 30th LAWASIA Conference on 18 - 21 September 2017 in Tokyo, presenting an important opportunity to discuss regional developments in law. I also encourage anyone who has not yet registered for the International Bar Association Annual Conference on 8-13 October to do so. It brings together leading thinkers in the law from around the globe, and to host such an event in our capital city is a great opportunity for the NSW legal profession.
8 LSJ I ISSUE 37 I SEPTEMBER 2017
Legal Costs Resolutions A bespoke mediation service offering an effective and confidential solution for your costs disputes
Sydney: (02) 9977 9200 | Brisbane: (07) 3834 3359 | Canberra: (02) 6248 8077 www.dgt.com.au firstname.lastname@example.org
Y OU R P R AC T I C E
W I T H T H E L L M ( A P P L I E D L AW )
– N AT H A N A E L K I T I N G A N S P E C I A L C O U N S E L , MA C P H E R S O N K E L L E Y & L L M ( A P P L I E D L AW ) G R A D UAT E I would highly recommend The College of Law masters. Not only is it very practical, but it’s taught well and it’s immediately applicable to one’s day to day practice.
ENROL ONLINE: collaw.edu.au/alp / 1300 506 402 / email@example.com N E X T S E M E S T E R C OMM E N C E S 1 9 F E B RUA RY 2 0 1 8
ISSUE 37 I SEPTEMBER 2017 I LSJ 9
Mailbag LETTERS TO THE EDITOR
Certificates of non-compliance It has now been more
• Approval time from Council to remove trees within non-climbing zones. • Insufficient time to carry out the necessary rectification works before the inspection program or auction date. (e.g. special size glass panels). • Insufficient funds to carry out the necessary rectification works. • Wanting to leave a cabana in the pool area containing barbecue, dining table and chairs, toilet etc. all of which are non-compliant uses. • When there are so many options available to make the pool compliant, owners decide to leave that decision to the purchaser (e.g. to install glass or metal pool fencing). • Problem with a neighbour objecting to an increase in height of a boundary fence to 1800mm measured on the pool side. Negotiations
It is interesting that on many occasions, a purchaser has agreed to buy a property with a pool on the condition that the Certificate of Non- compliance is replaced with a Certificate of Compliance before settlement. At this time, I am normally asked to arrange for tradesmen to make the pool compliant within the normal six-week settlement period. Leasing a residential property with a pool is quite different, of course, where a Certificate of Compliance is a necessity in an Agreement for Lease. John Denoon, Pool Certification Sydney Legal swim club I am thinking about getting or trying to get a Masters Swim Club started in 2018 with and for members of the Law Society or anyone in the legal profession. I would love hear from solicitors interested in joining. AndrewWhitton, Whitton Legal PO Box 638 Stanhope Gardens NSW 2768 St Thomas More Society I was interested to see an ad in the July edition of the LSJ for an upcoming event of the St Thomas More Society. It revealed that the society was still in existence and active. In February 1957, I was employed as a clerk by C P
JULIANMCMAHONONHISLIFE’SWORK ANDHISBATTLETOENDTHEDEATHPENALTY ACOURAGEOUS FIGHTTOTHEDEATH
than 12 months since the NSW Government introduced the option to use either a Certificate of Compliance or a Certificate of Non- compliance in a contract for sale of a residential property with a pool. Since 29 April 2016, I have inspected more than 300 swimming pools or spas, the majority of which have been inspections for sale purposes. Of these, most were initially assessed as non-compliant. For those owners who preferred to sell with a Certificate of Compliance, we were able to work together in a cost-effective manner to ensure the pools complied. More than 50 per cent of owners, however, elected to sell with a Certificate of Non-compliance attached to their Contract for Sale. These certificates pass the obligation to rectify the pool barrier to the purchaser within 90 days of settlement. The reasons why owners elected to use a Certificate of Non-compliance varied but included : • Removal of attractive climbable landscaping alongside pool fencing could make the value of the property less than if it remained.
TELLYOURSTORY BARACKOBAMA’SFORMERLAWYER ONTHEPOWEROFBEINGHONEST
BOLIVIANPRISONSANDWHITEPOWDER THEWILDADVENTURESOFRUSTYYOUNG THEDARKSIDEOFHENRYLAWSON ANDWHY IT’SSTILLRELEVANTTODAY BUILDINGUPYOURNETWORKS AGUIDEFORNONPARTNERS SHIFTINGTHEGOALPOSTSAGAIN THESKILLEDMIGRATIONPROGRAM
26/7/17 4:18 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org 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.
CONGRATULATIONS! John Denoon has won lunch for four. Please email email@example.com for instructions on how to claim your prize. Correction On p.63 of the July LSJ , a book review was attributed to Magdalene D’Silva. This attribution was incorrect. We apologise for any confusion.
through a community justice centre does take time as does the use of the Dividing Fences Act through the courts.
• Would rather take the time to lodge an application for exemption with Council where the owner believes the restricted access to the pool is as effective as a pool fence (e.g. a sheer cliff face).
10 LSJ I ISSUE 37 I SEPTEMBER 2017
LETTERS TO THE EDITOR
My other reward was more tangible. On some Fridays, I was taken to lunchtime mass at St Mary’s Cathedral, followed by toheroa soup and grilled snapper tail at Gravas fish cafe, King St. Mr Stuart White also became the solicitor for the fledgling Democratic Labor Party. Some of the members of which were also members of the St Thomas More Society. As the sole articled clerk to the firm I now became chief gopher for the society and the party. Luckily, my Protestant faith and Liberal Party upbringing saved me from a dual conversion. The present secretary of the society has a computer and email addresses to perform his/her function. Such have replaced the now extinct articled clerk. Years later I was propounding the benefits of articles of clerkship to such a clerk and mentioned that “humility” was a learned virtue. He immediately retorted that the system taught “servility”. Thank you St Thomas More Society for the unique experience. This dinosaur retains vivid and fond memories of my “Master Solicitor” fulfilling his obligations to provide a “rounded” legal education. Peter Poulton, Retired solicitor
White and Sons, solicitors, 160 Castlereagh St. Sydney. The Sydney partner was Mr Stuart White, who was also the honorary secretary of the society. A large part of Stuart’s function as secretary was to compile the minutes of each monthly meeting. Annexed to the minutes was a copy of the speech delivered at the meeting. The speaker was usually a prominent Catholic theologian, judge or lawyer. My job was to check the typed draft of the speech against the transcript provided by the speaker. As a practising Methodist, my Protestant sensitivities were challenged by the content of the speeches. Ecumenism was not then widely practised. As a reliable photocopier had not been invented, my job was to take the settled minutes to a printer, retrieve the copies, put them in envelopes and deliver them, by hand, as my wages were cheaper than postage, to members of the society who were judges, barristers and solicitors in the CBD. The worn shoe leather and aching feet were not without some reward. In my rambles around Sydney, I met such prominent Catholic lawyers as Bill Deane (later Sir William Deane), Jack Slattery (later Mr Justice Slattery) and Paul Flannery (later Judge Flannery) to name a few.
The scientific examination of handwriting, documents and fingerprints
thorough analysis, impartiality, quality assurance
Phone: +61 2 9453 3033 firstname.lastname@example.org www.forensicdocument.com.au
ISSUE 37 I SEPTEMBER 2017 I LSJ 11
Mailbag LETTERS TO THE EDITOR
Contagious innovation Your feature article “Contagious Innovation” in the LSJ June edition on Israel’s innovation society was problematic and insensitive. I read this article as we marked the 50th year of Israel’s ongoing military occupation of the Palestinian people in the West Bank and the Gaza innovation and even outlines compulsory military service being a contributor to the “significant success factor” for Israeli innovation, because it has provided Israelis “with a level maturity and life experience that is uncommon in many countries”. It was totally silent about what the real consequences of what that “life experience” in military service entails, the purpose of which is to maintain and sustain a military occupation of an entire people. An occupation that is known for its widespread and systematic human rights violations that operate en masse on a daily basis to ensure Israel’s control over the Palestinian population. Collective punishment, land and property confiscation, apartheid, and Jewish only colony settlement expansion, an expansive military injustice system, excessive use of force, unlawful killings, denial of freedom of movement, severe restrictions on Strip since 5 June 1967. The article praises Israel and its penchant for
movement of goods and trade are just some of the entrenched features of this occupation. Michael Lynk, the UN Special Rapporteur on the situation of the human rights in the Palestinian territories occupied since 1967, on the eve of the 50th year of the occupation, said: “Occupations are inherently temporary and short-term under international law, yet this occupation – after five decades – has no end in sight. Indeed, it is deeply entrenched, and Israel, the occupying power, shows many signs of wanting to another praised company in the article, Elbit Systems International, a company which is known for manufacturing and supplying weapons to the Israeli military and creating drones for use in Afghanistan, and which has been the subject of intense criticism and action from those concerned about businesses profiteering from human rights abuses. I would have expected more from the Law Society Journal , a publication that reflects the views of its members, in particular for the promotion of international human rights and international justice mechanisms for all oppressed peoples around the world, that it would make it permanent.” Similarly there was no criticism or insight into
not have been so readily in the service of supporting and promoting Israeli
funny in one place or time is not in another, and what is funny as stand-up is not necessarily funny when written down. Any of these could explain why I didn’t raise a smile when reading the extract from Peter Clayton’s award- winning address at the NSW Golden Gavel competition. But I am not sure I’d have responded any differently had I been there to hear it live, because another thing about humour is that some things just cease to be funny. I’m fairly confident that Mr Clayton would not countenance jokes and one-liners about what were known, years ago, as “wog” jokes or “abo” jokes. Times, values and attitudes have changed, and not only is such “humour” no longer funny, it is widely recognised to be disrespectful, offensive, divisive and harmful. Similarly, “mother-in-law” one-liners and cracks about beating the wife are now beyond the pale. I wonder, then, when a public speaker will baulk at trying to get a laugh by making fun of people with disabilities? When will jokes about people who live with blindness and dyslexia be beyond the pale? Sooner rather than later, I think, and, I hope, before next year’s Golden Gavel competition.
propaganda. Rawan Arraf
Solicitor, Refugee Advice & Casework Service (Aust) Inc.
Our weak corporate watchdog ASIC’s website on 7 July reported that five financial adviser groups related to the National Australia Bank failed to properly disclose – to at least 150,000 clients – the link between the advisers, the NAB and the investment products being recommended. The “disclosure” was buried in the no doubt highly readable Financial Services Guide. The outcome: ASIC will require those investors to receive a “corrective disclosure” when logging into their investment accounts for the next three months. Does anyone share my amazement that ASIC did not require the NAB to offer those investors a right to unwind their investment, without penalty, due to a blatant conflict of interest? David Grinston, Grinstons Lawyers, Crows Nest Not amused About “You say lawyers don’t lie? You’re lying”, LSJ July, humour is a funny thing. What is funny to one person is not to another, what is
Simon Rice, Queens Park
12 LSJ I ISSUE 37 I SEPTEMBER 2017
ON THE SOCIALS
Professional courtesy I am finding an alarming increase in a lack of professional courtesy, particularly when it
comes to responding to telephone messages and correspondence. It’s quite unfair, in these times when we are all bound to follow “just, cheap and quick” objects to make fellow practitioners chase you for a response. In the past few days alone I have found myself having to leave numerous follow- up messages and also even sending emails asking if we can anticipate a response to previous email correspondence – all to no avail. If one thinks of it like a tennis match, all we end up with is a bunch of balls in the other lawyer’s court and a huge waste of time and money. Even if your response is that you are awaiting instructions, at least send that. Anything to let us know that you are working on the matter and we are not being ignored. Even if you have not been paid by your client and don’t want to run up costs, respond
“Love it! Great to celebrate. Just note that it’s very Victorian. How do the other Australian states compare?” Elizabeth Maria Espinosa, Facebook “Great to see there is no diversity in judicial system of Australia. White male replaced by white female and judiciary running the same way.” A.D. Naipaul, Twitter woman who isn’t white. Where has intersectionality gotten us, exactly? What is it that brown and black and Asian women are fighting for when we are fighting for women’s rights? I am embarrassed and astounded by this. That some are meant to be proud of this when all it is telling us is that feminism in this country is for white women only.” Randa Abdel-Fattah, Facebook “I love that it was taken by a man, and ‘took four months to arrange’ – maybe that’s why, hee hee.” Mary Vargy, Facebook “Correct me if I am wrong, but there appears not to be a single
“An interesting slant on this – a female uni student in the US was sent an unsolicited ‘dick-pic’ and forwarded it to the guy’s mum in protest. The originator of the image then lodged a criminal complaint citing the local revenge-porn statute. 10/10 for class there mate.” David Bowles, LinkedIn “Good to see action on this, but we really need to change the name – ‘revenge porn’ makes it sound like the victim has done something to deserve it. I suggest ‘coward porn’ – it correctly identifies both the act and the perpetrator.” Shane Budden, LinkedIn
“Thanks for the update nswls.” - Sarah Connor, LinkedIn
anyway so we don’t run up unnecessary costs chasing you. A lot of time, costs and
frustration can be saved by a little professional courtesy being exercised. Practitioners, please bear that in mind. David Simons, Legal Practitioner Director SR Law, Bondi Junction
ISSUE 37 I SEPTEMBER 2017 I LSJ 13
‘Unprecedented times’ threatening demise of rule of law
A top NSW criminal barrister has referred to the high danger of terrorism in Australia as “unprecedented” and has warned that laws giving police and ASIO more power to prevent terrorism need to be carefully scrutinised. KATE ALLMAN reports. PHOTOGRAPHY: JASON MCCORMACK
NSW Police Commissioner Mick Fuller, Martin Krygier, Peggy Dwyer, Stephen Blanks and Society President Pauline Wright at the Thought Leadership event.
“These are unprecedented times,” said Sydney barrister Peggy Dwyer at a Law Society of NSW Thought Leadership event on 24 August. “Terrorism is a very real threat that needs to be contained, but we need to ensure there is independent scrutiny of the laws that are passed in response to that threat.” NSW Police Commissioner Mick Fuller, University of NSW Professor of Law Martin Krygier and President of the NSW Council for Civil Liberties Stephen Blanks joined Dwyer in putting Australia’s policing and anti-terrorism laws under the microscope, in a fiery panel discussion about how the rule of law is being “bent” in the face of security fears. Former NSW Director of Public Prosecutions Nicholas Cowdery and Education Coordinator for the Rule of Law Institute of Australia Jackie Charles were among nearly 80 legal minds at the event, which was hosted by the Law Society President Pauline Wright. It was the first in a series of 2017 Thought Leadership events that will focus on rule of law concepts such as civil liberties, equality before the law and the right to a fair trial. “There are many legitimate things to fear in the world,” said UNSW law Professor Martin Krygier, who is known as a veritable guru on the rule of law for the number of articles he has written about it. “Terrorism isn’t going to stop. ISIS is real. Fear is appropriate. My hope is that decisions made about responses to that threat will be made with cool heads, and will be sensible and proportionate to the threat.” President of the NSW Council for Civil Liberties Stephen Blanks criticised law enforcement agencies for demanding increasing power that threatens civil liberties in the name of national security. He pointed to powers under the Terrorism (Police Powers) Act 2002 , which allows police to detained suspected
terrorists for up to 14 days without charge, as evidence of anti-terrorism law encroaching on the rights of citizens to rule- of-law concepts such as the presumption of innocence and protection from arbitrary power. “NSW has the toughest terrorism laws in the country,” said Blanks. “That is code for breaking the rule of law. The way in which these laws have been enacted look as though police want maximum power, with minimum responsibility.” NSW Police Commissioner Fuller denied that this was the case, saying that police simply managed the rule of law by applying laws that parliament had passed. “In many cases we didn’t ask for the law or the powers but we have to enforce and apply them,” said Fuller. “Legislation is being rushed through parliament because people have this overblown fear of crime. Crime rates are actually down – they’re the lowest they’ve been in years, and that’s despite our growing population. I don’t think police need any new powers.” All speakers at the “Bending the rule of law” event, agreed on one thing: that the rule of law in Australia was malleable, but not invincible. “The rule of law is not a light switch,” said Krygier. “It can bend without breaking but you have to be careful – it will only go so far.” Wright agreed and said defending the rule of law in the face of expansion of executive powers was an important challenge facing the legal profession and public today. “All people must be able to exercise their constitutional and other rights equitably,” said Wright. “The rule of law can be better preserved within an overarching framework of crisis prevention.” The next Thought Leadership event will be held on 17 October. For more go to lawsociety.com.au/thoughtleadership
14 LSJ I ISSUE 37 I SEPTEMBER 2017
NEWTHISMONTH JUSTMUSICAND JUSTARTEVENTS Don’t miss two inspiring events to raise money for Bara Barang, the Society’s 2017 charity. The Law Society is excited to showase the finalists from its Just Art and Just Music competitions. The Society was overwhelmed with the talent shown by the legal profession, with more than 100 entries received. The Just Art exhibition is on at Gauge Gallery, Glebe, from 6-17 September. All artworks will be for sale throughout the show. Check out the exhibition catalogue at the Just Art webpage. The Just Music concert will be held on the evening of 28 September at the City Recital Hall, Sydney. Tickets are on sale through the venue for $55 (plus booking fee). Proceeds from both events will support the President’s 2017 Charity, Bara Barang. lawsociety.com.au/justart lawsociety.com.au/justmusic NEWTHISMONTH GOVERNMENT SOLICITORS CONFERENCE Solicitors will gather in Sydney on 5 September for the annual Government Solicitors Conference at Doltone House Hyde Park. Speakers include Elizabeth Tydd, NSW Information Commissioner and CEO of the Information and Privacy Commission, and Counsel assisting the inquest into the Lindt siege Jason Downing. Visit eshop.lawsociety.com.au/index. php/catalog/product/view/id/3911 for details.
Cleaver Green Rake, ABC TV
“Isn’t it interesting that when people talk about the measures needed to protect freedom, they are usually discussing ways of limiting it.”
ISSUE 37 I SEPTEMBER 2017 I LSJ 15
six minutes with
JASON GRAY PARTNER, ALLEN &OVERY
in Sydney, which has a broad jurisdictional footprint, was looking for a US expert, so it was a match made in heaven. What do you do? My team and I advise clients in complex white-collar crime matters. A large number are related to the FCPA and have a multi-jurisdictional element. I cover the Asia-Pacific region, from New Zealand to Pakistan and everything in between. It’s a combination of internal and externally-driven investigations, transactional due diligence and helping companies develop or enhance corporate compliance programs. The other side of my practice is the Australian side of foreign bribery investigations and enforcement, which is particularly interesting at the moment following a whole new package of reforms that were recently introduced by the Federal Government. Biggest changes the field? The US is no longer the only sheriff in town when it comes to enforcing foreign bribery laws. Clients now have to deal with a multiplicity of authorities, which makes the area complicated and a high risk for Asia- Pacific companies. What lies ahead? Unfortunately, bribery and corruption is a very old business. I don’t see these practices being eliminated from the world any time soon. The enforcement landscape is only going to get more interesting and complex. and a decade in private practice in New York, including counsel in the government enforcement and white-collar crime at Skadden Arps, Slate, Meagher and Flom LLP. Gray received his BA/LLB from the University of Sydney, LLM from Harvard Law School, and was admitted as a solicitor in 2002. BY LYNN ELSEY Jason Gray, recently promoted to partner, leads the firm’s Asia-Pacific US Foreign Corrupt Practices Act (FCTA) and white-collar crime practice. His previous roles included being an attorney adviser at the World Trade Organisation in Geneva, associate to the Chief Justice of the Federal Court of Australia,
What drew you to study law at Harvard – besides the obvious? During my studies at the University of Sydney I developed an interest in US law and how it was able to reach extra-territoriality beyond US borders with such ease. I also wanted to keep studying.
How did you end up specialising in white-collar crime?
White-collar crime, financial services regulation and insider trading had been an interest for a long time. It just so happened that I ended up at a firm [Skadden Arps] where cross-border white-collar criminal investigations were a driving force in the litigation practice. One morning, one of the partners came to my office and asked, “I assume you have a passport because you are Australian, can you go to Johannesburg tomorrow?” That was the start of my first FCPA investigation. I loved it and was fascinated by it. It just rolled on from there. I love solving complex problems, piecing together facts and applying a legal framework. I have always enjoyed travel and experiencing different cultures and this area of practice really indulges that interest. What prompted your return to Sydney? The reality of trying to raise children in New York City. You don’t realise the value of space and greenery until you have kids and are living in Manhattan. Also, when I was working in New York I could see that the future of FCPA enforcement was going to be focused on emerging companies in emerging markets with US jurisdictional exposure. Many of these are based in Asia-Pacific. Luckily, it turned out that Allen & Overy
If I wasn’t a lawyer, I would be … A detective.
16 LSJ I ISSUE 37 I SEPTEMBER 2017
RAISING THE GLOBAL BAR. The world is changing at an exciting pace. Borders have been replaced by a free flow of information, ideas and international dealings. Our Master of Laws (International Governance) gives you a grounding in international laws, corporate operations and policy making so that you can excel in the global arena. Mixing flexible learning through classes at our new Parramatta City Campus and online components, the course ensures the latest developments in the real world are incorporated right into the classroom. Register and attend our October Information Evening to learn more about our Master of Laws (International Governance). westernsydney.edu.au/postgraduate
WELLBEING TRISTANJEPSONEVENT Magistrate David Heilpern will speak on “Lifting the Judicial Veil: Vicarious Trauma, PTSD and the Judiciary: A Personal Story” as keynote speaker at the annual Tristan Jepson Memorial Foundation (TJMF) lecture in Sydney on 25 October. Heilpern’s distinguished career includes practising with the Australian Government Solicitor, private practice specialising in criminal law on the North Coast, helping form and serving as acting head of the Law School at Southern Cross University, and serving as Senior Civil Magistrate for NSW. He is a senior faculty member of the Orientation Project and also trains magistrates interstate and overseas. Greg de Moore, Associate Professor of Psychiatry at Westmead Hospital, and Julie Blyth, Clinical Adviser at the Royal Commission into Institutional Responses to Child Sexual Abuse, will provide commentary. TJMF seeks to reduce disability and distress from mental ill health in the legal profession and promote psychologically healthy and safe workplaces. Visit tjmf.org.au for more information and to purchase your tickets SCHEMEFORDISADVANTAGED WORKDEVELOPMENT SCHEMEBENEFITS BOTHSIDES The NSW Government’s Work Development Order (WDO)scheme, which was created to allow disadvantaged people to clear debts through work, continues to clock up the numbers. The government noted that a program operating in Griffith had helped give 100 people, who otherwise might have struggled to pay off their debts, a second chance. The WDO scheme allows people in disadvantaged circumstances, including those suffering from mental illness or victims of domestic violence, to pay off debts through volunteering, counselling and rehabilitation programs. In 2016-17, more than 23,000 WDOs were enacted, resulting in $92 million of fines being cleared. Since the program was founded in 2012, more than 75,000 WDOs have been completed across NSW. “Communities like Griffith benefit from participants’ involvement in WDOs because of their volunteer contributions. This important milestone represents many, many lives changed for the better,” said Adrian Piccoli, Member for Murray, in a press release.
We specialise in agency appearances for all Sydney CBD courts and tribunals To obtain our services or for more information call (02) 9239 0555 or visit www.sydneymentions.com.au No time for city court appearances? “Don’t mention it...we will.”
Suite 501, Level 5, 265 Castlereagh St, Sydney NSW 2000 DX 1084 Sydney
ISSUE 37 I SEPTEMBER 2017 I LSJ 17
PAYAL MAHINDROO Joined as a Consulting Principal Nexus Law Group
KELVINKEANE Joined as a Consulting Principal Nexus Law Group
RANIGANDHA Appointed as a Partner Turnbull Hill Lawyers
CLAREBROWN Promoted to Partner Johnson Winter & Slattery, Sydney
RAVI DEFONSEKA Promoted to Partner Johnson Winter & Slattery, Sydney
MICHELLEDOWN Promoted to Director Abrams Turner Whelan
JOSIEBLIGHT Promoted to Partner Pearson Emerson Meyer Family Lawyers
MELANIERUBIN Promoted to Partner Pearson Emerson Meyer Family Lawyers
ALEXNAMISNYK Promoted to Associate Abrams Turner Whelan
JEREMYPERIER Promoted to Senior Associate, Intellectual Property and Competition McCullough Robertson, Sydney
PETERHEGARTY Now Principal Hegarty Legal
PEPPYMITCHELL Promoted to Special
Counsel, Risk DibbsBarker
DANIELLE BENECKE Promotion with
ELIASYAMINE Now Legal Practitioner Director ESY Lawyers
CARLATURNER Promoted to Senior Associate Gilchrist Connell, Sydney
international transfer Baker & McKenzie, San Francisco and Palo Alto SUSANMORAN Promoted to Principal SWS Lawyers
EADMUND (EAD) IZZARD Joined as Consultant SWS Lawyers
GEORGINAKING Joined as Special Counsel Madison Marcus Law Firm
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
18 LSJ I ISSUE 37 I SEPTEMBER 2017
LINDEN BARNES IN CONVERSATIONWITH THE LAW SOCIETY’S ETHICS COMMITTEE
Undertakings are something to be taken seriously. The Law Society’s ethics committee has come up with the top four fake news tweets about undertakings. 1 Promises aren’t important@undertakings The Law Society’s Ethics Committee has had some interesting discussions on the issue of whether an undertaking is “more binding” than a promise, as a result of the recent case of Nada v Georges River Council  NSWLEC 80. In this case, the solicitor’s client did not pay the costs of the Council, despite an agreement to do so, and then opposed an order for those costs on the basis of delay. The court noted that “where legal practitioners appear before the court and assure it that agreement has been reached between the parties … then I consider that such an assurance is tantamount to being an undertaking to the court that the parties will do that which their legal practitioners have assured the court will be done.” As Raymon Anderson, of the Ethics Committee, says, “A solicitor is an officer of the court and both a representation or undertaking can equally be relied on by the court. Disciplinary proceedings under the conduct rules may differentiate between the two, but courts may not as they deal with the broader obligations of solicitors which underpin those rules.” 2 Nomatter if it’s just a court order@officerofcourt The importance of a solicitor’s word, an officer of the court’s word, was made very clear in the series of Bain cases. These involved the potential jailing of a solicitor for contempt of court for allegedly breaching an undertaking embodied in a court order (culminating in Bain & Bain (Deceased)  FamCAFC 80 , exonerating the solicitor). Scott Alden of the Committee noted that “in this case it is clear that the court, rightly, equated a court undertaking by one of its officers as the equivalent of an order or injunction given in the public interest where non-compliance was an interference to the administration of justice. The fact is that, as officers of the court, we are held to a higher standard and simply must comply with court undertakings, or we face the very serious consequences of non-compliance (including incarceration!)”. “The case also highlights how, even in our personal affairs, we are still officers of the court,” explains Michael Tiyce, committee member. “We don’t take off that hat when we leave the office.” 3 CPD/PMC just tickboxes@CPDangst The committee also considered another aspect of undertakings. Taking a look at the practising certificate,
almost all solicitors are subject to condition 1, the annual CPD requirement. Many are also subject to condition 3, the requirement to do the PMC before they can be a principal. Are these undertakings to do what is required given when the certificate is granted or renewed? It is a prudent view. However, it is also important to consider the purpose behind these conditions. As Terrie Gibson, Head of Licensing, says, “These conditions are not just about consumer protection. They are also about risk management. CPD and the PMC exist to educate solicitors so they stay up to date in our ever changing profession, and give them the best possible practice management skills so as to support solicitors in being successful and having happy clients.” Serryn O’Regan, of the Ethics Committee, makes a similar point about the importance of CPD. “Just as a plumber must meet minimum education each year, a solicitor, too, owes a duty to stay current in the law,” O’Regan says. “Is this not for the best interests of clients and indeed for the public in the assurance that, if they see a solicitor, they are getting advice or representation from someone who is up to date? The CPD standards set are the absolute minimum. Scraping through or getting an exemption for one excuse or another is actually very poor practice and a poor reflection on the profession as a whole.” 4 Undertakings to Society not important@strikeoff Jane Glowrey, Councillor and member of the Ethics Committee, has seen a trend of solicitors approaching the CPD timeframe but lacking the points, or wishing to go out on their own without having done the PMC before they put up their own shingle. As she notes, such solicitors attempt to overcome the short- term problem by seeking to give an undertaking to the Society to complete their requirements. There are three PMC course providers, including the Law Society, and multiple ways to attain CPD points. The Licensing Committee, and Terrie Gibson, caution practitioners that undertakings will be available only in limited, appropriate circumstances. Even this clear undertaking is sometimes breached. Glowrey says there have been a number of decisions in relation to practitioners who have breached such undertakings, resulting in findings of professional misconduct. “The message is, undertakings to the Law Society are not to be given lightly. The Licensing Committee regards breaches of a solicitor’s undertaking as most serious.” PS. These are fake twitter accounts. If they do exist, they could be quite interesting.
ISSUE 37 I SEPTEMBER 2017 I LSJ 19
IN-HOUSELAWYERS The future for in-house lawyers
A powerful group of general counsel and in-house lawyers met at the Law Society of NSW on 8 August to discuss the implications of the Future of Law and Innovation in the Profession (FLIP) report for in-house practice. In-house leaders from BHP, Westpac, KPMG, Deloitte, EY, Qantas, the NBN, Hewlett-Packard, Telstra, UBS, AMP, Uber, ANZ, Microsoft, and Google attended the session, which Law Society CEO Michael Tidball facilitated. Among the issues discussed was how to improve collaboration and knowledge sharing, particularly between the larger in-house teams/organisations. The Law Society has also recognised the importance of pro bono work for its crucial impact on the community, as well as personal and organisational benefits to practising lawyers, by launching a new guide specifically created for in-house lawyers. Pro Bono Legal Work – A Guide for in-house corporate lawyers was produced in conjunction with the Australian Pro Bono Centre and the Association of Corporate Counsel. The guide, which builds on previous publications from DLA Piper, covers all aspects of pro bono work. It provides key information and insights including case studies of pro bono legal services from some of Australia’s top organisations and details on how to create an effective in-house program. The free guide is available probonocentre.org.au/in-house-guide .
From top: The FLIP General Counsel group; Anna Golovsky, left, from AMP and Melissa Patrk from KPMG; Kristian Kapetas from Deloitte at the in-house counsel event.
20 LSJ I ISSUE 37 I SEPTEMBER 2017
NEWRESOURCE LIVEYOURBESTLIFE IN THEWEST
MARRIAGEEQUALITY LAWSOCIETYBACKS CHANGESTOTHE MARRIAGEACT The President of the Law Society of NSW, Pauline Wright, said denying couples of the same sex the choice to enter a civil marriage contravened the principle of equality before the law. Wright joined the President of the NSW Bar Association, Arthur Moses SC, and the President of the Australian Medical Association (NSW), Professor Brad Frankum, to express support for marriage equality legislation at the Federal level. “Our organisations support the introduction of marriage equality laws and consider that legislation that discriminates on the basis of sexual orientation and gender identity is fundamentally wrong,” said Moses, Wright and Frankum in a joint statement. “The Law Society of NSW is committed to ensuring that all Australians are equal before the law in rights and dignity, regardless of sexual orientation or gender identity,” Wright said. “Failing to recognise same-sex marriage can have a negative and their families, including those in the legal profession.”
NSW Young Lawyers and the Orana Law Society will launch a new guide for lawyers living and working in the Orana region of western NSW. The guide contains a handy list of details for all Local and District Courthouses in the Orana region surrounding Dubbo, as well as the law firms that could o er potential employment for young lawyers considering making a move to country practice. Thre’s also a calendar of events in Dubbo throughout the year. “We have included tips from other young lawyers in the Orana Law Society, such as where to find the best co ee, our most trusted dry cleaner, the best place to have a beer after work and the best-kept local secrets,” writes NSW Young Lawyers Regional Delegate Melissa Mastronardi in the introduction. The guide will be launched at the Orana Law Society’s annual general meeting on 22 September in Dubbo. Former High Court Justice Dyson Heydon will speak at the AGM dinner and David Turner, Vice President of NSW Young Lawyers, will be attending the launch.Download a free copy of the guide via lawsociety.cld. bz/Guide-to-living-and-working-in-the-Orana-region/2
CRITICAL MCLE SEMINARS NOT TO BE MISSED!
Leave the gift of a better life Leaving a bequest to Diabetes NSW& ACT helps us support, educate and advocate for those living with diabetes and fund life changing research. Our services and programs are designed to help those living with diabetes better manage their condition so they can live their best lives! Continue the circle of life with a gift in your will. For more information about leaving a bequest contact DNSW& ACT Planned Giving Manager on: 02 9552 9925
Employment Law Friday, 24 November 2017 Family Law Saturday, 10 March 2018 Criminal Law Saturday, 17 March 2018
10th Anniversary Fundraising Dinner Saturday 14 October 2017 Chief Guest The Hon Mark Speakman SC MP , NSW Attorney General with The Her Honour Justice Margaret Beazley AO presiding CHECK OUT OUR FREE SATURDAY SEMINAR SERIES Tax and Equity Friday, 23 March 2018 Rule 6.1 Mandatory Components Saturday, 24 March 2018
For registration go to: www.tlc.asn.au
ISSUE 37 I SEPTEMBER 2017 I LSJ 21
Made with FlippingBook HTML5