LSJ September 2019
Far beyond the pale Why the recent AFP press raids require careful consideration Building social empires Are lawyers not on social media missing out on business? The right medicine How treating impulsivity in repeat offenders could lower violent crime A powerful chill is cast Implications of the High Court’s recent decision in Comcare v Banerji
ISSUE 59 SEPTEMBER 2019
Slavery inthe supply chain
Why Australian businesses need to get serious about the many and varied forms of modern slavery
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ISSUE 59 I SEPTEMBER 2019 I LSJ 25
24 Hot topic
36 Press freedom
Could medicating domestic violence o enders be the answer to lowering violent crime rates?
Patricia Drum investigates what the AFP media raids mean for the media and national security 40 Social mediamarketing
Lawyer Matt Ward balances extreme adventure with billable hours from remote corners of the earth
26 Lunchwith a lawyer Russell Hodge went from
Emma Heuston meets the lawyers making the most of social media to boost business
September is Prostate Cancer Awareness Month: do you know what to look out for?
corporate lawyer to sleeping rough – and now author
30 Cover story
Amy Dale plunges into the world of modern slavery in Australia, asking if our laws are su cient
Rachel Setti has advice for workplace bullies, and highlights why victims often become perpetrators
Ute Junker travels to bustling Seoul, while Kate Allman finds adventure o -piste in the NSW snow fields
ISSUE 59 I SEPTEMBER 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 12 News 18 Members on themove 21 Expert witless 21 The LSJ quiz 28 Out and about 44 Career matters 46 Mindset 46 Library additions 48 Doing business 49 Career coach 54 Fitness 60 Youwish 62 Books 64 The case that changedme 106 Avid for scandal
The latest key developments in advocacy and law reform
NCAT Appeal Panel taps off on the Gold Opal Card case
84 Wills and estates Beware charging for
Controversial new Temporary Exclusion Orders Act raises constitutional concerns
non-professional work in the administration of estates
86 Compliance risks
Why ethics in trust accounting is about more than a set of rules
The High Court has its say on so called ‘freedom of speech’ in the public sector
88 Personal injury
‘The relevant insurer’: a new concept under the CTP scheme
The journalist, the warrant & the gatekeeper: are current powers fit for the times?
High Court decision in Glencore confirms legal professional privilege is a shield, not a sword
A closer look at the laws authorising sharing of personal information to fight fraud against the Commonwealth
Careful attention required with foreign trusts and duty
93 Case notes
Part two of a new series covering e-conveyancing essentials
A wrap-up of the latest federal family, criminal, and elder law & succession judgments
4 LSJ I ISSUE 59 I SEPTEMBER 2019
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A word from the editor
If you’re interested in the red-hot issue of press freedom and the implications of the recent AFP raids on two Australian media outlets, you’re in for a treat. ABC producer Patricia Drum, whose name you might recognise from her work on The Killing Season with investigative journalist Sarah Ferguson, offers an exclusive insight into the myriad views and experiences of those involved in and close to the raids.
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor
It’s fascinating and concerning, and you’ll find it on page 36. An interesting addendum to this article is barrister Bradley Dean’s legal analysis of the warrants behind the raids – an issue that raises a whole swathe of different questions and delivers a curious insight into the history of search warrants in Australia. First, though, don’t miss Amy Dale’s exploration of slavery in Australia in 2019 in our cover story on page 30. The issue of so-called “modern slavery” is easy to ignore; often it festers within deliberately hidden corners of society. But it is something that all businesses – big and small – must be aware of and responsive to. And, by default, so too their legal counsel. A must read.
Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin 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
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© 2019 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
AMY DALE Cover story p30
PATRICIA DRUM Feature p36 Patricia is a researcher and producer at the ABC. She takes a deep dive into the fraught situation following the AFP raids on News Corp and the ABC in June, and asks how we can
HELEN IRVING Constitutional law p68 Professor Helen Irving is a constitutional law expert at the University of Sydney law school. She takes an in-depth look at whether the government really has power to pass a law that can prevent
BELINDA CASSIDY Personal injury p88 Belinda Cassidy is Special Counsel at Stacks Goudkamp and has more than 28 years of personal injury experience. In part 2 of a series of articles for LSJ , Belinda takes a close look at the “relevant insurer” under the NSW CTP scheme.
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Amy is a published true crime author, former government policy adviser and now journalist at LSJ . In this issue, she explores the reality of modern slavery in Australia in 2019, and asks whether our laws are enough to prevent it.
adequately balance press freedom with national security.
an Australian from entering Australia.
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6 LSJ I ISSUE 59 I SEPTEMBER 2019
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ISSUE 59 I SEPTEMBER 2019 I LSJ 25
I n her closing presentation at the Law Society’s recent FLIP Conference in Sydney on “making science fiction our reality”, Market Clarity CEO Shara Evans provided some fascinating insights into the way technology and innovation is re-shaping the way we live, work and play. From big data and analytics to image recognition, voice recognition, emotion recognition and robots, Shara outlined how artificial intelligence is being woven into almost every emerging technology. In doing so, she highlighted some key ethical considerations in this re-imaging of the future, such as designing ethics into driverless vehicles and the use of autonomous lethal weapons. Taking this a step further, factors including quantum mechanics, the rise of big data, and our rapidly improving expertise in gene and brain function manipulation are also challenging some of the values and assumptions that underpin our laws and legal system. Vast improvements over the last 10 years in imaging technology and
understanding of neurological processes are challenging legal concepts and our very sense of self. Artificially intelligent brain implants have been trialled on at least one human and blur the line between technology as agent of the self or a component of the human mind. As part of the Law Society’s ongoingThought Leadership series, we’ve decided to delve deeper into the fascinating world of neuroscience, biology and free will. How will advancements in fields like neuroscience, biotechnology and behaviour change challenge our laws and legal system? What ethics apply to biotechnology? Can we be ‘nudged’ into a brave new world, tailored to meet our every need? And amid the brain’s powerful electrical impulses, is there room for what we call ‘free will’? These are just some of the thought-provoking questions that will be put to a panel of experts at our upcoming panel discussion on Tuesday 17 September 2019. “Is biology destiny? Free will and the law in the age of biotech” will be facilitated by Dr Nicole Vincent, Senior Lecturer, Faculty of Transdisciplinary Innovation, University of Technology and will feature leading legal theorist Dr Allan McCay, behaviour change expert Kathy O’Donoghue, and top neurosurgeon Professor Jeffrey V. Rosenfeld AC OBE. It’s set to be a boundary-pushing discussion and I hope you can join us. I would also like to take this opportunity to remind members that nominations are open for the 2019 Charter for the Advancement of Women Awards. These awards recognise the efforts of the 161 signatories to the Law Society’s Charter for the Advancement of Women in the Legal Profession who have demonstrated strategies and workplace changes relating to the advancement of women in the legal workplace. After the success of last year’s inaugural Charter for the Advancement of Women Awards, we have expanded the awards from one to three categories: Large law firm (member of Law Firms Australia); Organisation employing an in-house practitioner; and any NSW law firm or practice that is not a member of Law Firms Australia. Nominations close on 20 September 2019, with the winners announced at the Annual Member’s Dinner on Thursday 24 October 2019. Further information is available on the Law Society website.
8 LSJ I ISSUE 59 I SEPTEMBER 2019
My firm thrives at y firm t rives at My firm thrives at RICHARD TIMPSON TIMPSON IMMIGRATION LAWYERS SIMON DELLA MARTA , PARTNER POINTON PA TNERS SYDNEY CHRISTELLE SANTELLI INNOVO LEGAL
Community | Workspaces | Resources WWW.CLARENCE.LAW 1300 310 500 Community | Workspaces | Resources WWW.CLARENCE.LAW 1300 310 500 T o b o o k v i s i T w w w . * Discount offer is valid for Australian car rentals booked via the LSNSW booking tool. This discount applies to the base rate (time and kilometre charge) only. Standard age, credit card and driver requirements apply. Rentals are subject to the terms and conditions of the Avis Rental Agreement at the time of rental. Offer valid unt l 18 May 2020. † You must b a member of the Qantas Frequent Flyer program to earn points. Membership number must be quoted when booking to earn points. Membership and points are subject to the terms and conditions of the Qantas Frequent Flyer program. A joining fee may apply. Points are earned on time and kilometre charges. For more information about earning points with Avis visit qantas.com/cars. Community | Workspaces | Resources WWW.CLARENCE.LAW e m b e r c o n n e x i o n s . c o m . a u Let the journey begin. Take advantage of 10% off * Australian Avis rentals as a Law Society Member. We want you and your money to go further on your next journey with this special offer. Plus, earn 4 Qantas Points † for every dollar spent on time and kilometre charges in Australia.
ISSUE 59 I SEPTEMBER 2019 I LSJ 25
ISSUE58 AUGUST 2019
An easy day job I was amused to read the letter from Alexia
thinking – because that’s what has always been done. Prob- ably, but not really the image you would want to project through the work you do, I would have thought. Sure, this issue is more grumpy old person than block- chain revolution – but in our profession, as in other areas, improvement and evolution are incremental processes. I encourage colleagues to spend a couple (approx. 2) of (unbilled) minutes eliminating this practice where you come across it. Michael Easton Legal, Marrickville Fashion over fitness I couldn’t help but laugh at Kate Allman’s article in last month’s LSJ (Fitness, August). Not one of the suggested “drills” could physically be done whilst wearing an A-line skirt and heels. Even if your outfit that day was a flowing skirt or trousers, in these days of open-plan o ces and glass partitions none of those manoeuvres are even vaguely suitable for the workplace! Surely a standing desk would be a much better option? When I commenced legal practice approximately 25 years ago, I recall telephoning the Law Society and the hold message advised you how to complain about your lawyer. I reported this to my supervis- ing partner and the message was subsequently removed. I have noticed there has been a concerted e ort by commu- nity groups, political parties and the Law Society of New South Wales to advocate on behalf of the consumers of law, how to complain about your lawyer and making complaints regarding costs. The passing of the Cost Sarah Perkins, LLB B Info Tech The high cost of costs assessments
Assessment Act effectively meant lawyers could not sue for their fees until the assess- ment process was completed. This will often take up to 18 months if there is an appeal. During that period, the client can divest themselves of their assets to e ectively nullify any enforcement process. The cost assessors have gone out of their way to make the regulations and requirements of what is a valid costs agree- ment di cult for a lawyer to comply with without expert advice from a cost assessor. It does not surprise me that as a result of the delegitimising of the profession of law that it is also radiated to law in general and most notably the courts. The institutions on which our society functions are under attack by left-wing activists who would like to see tribu- nals determining all issues between parties rather than the involvement of lawyers. It is becoming more frequent for a client to complain about the cost charge or the services rendered once they have been primed by various community groups or even the Law Society website. The lopsided nature of this debate is that I am running a private business that is subject to highly restrictive regulations and how that business is run, whereas the consumer of my services has access to all the government provided services and community advice to attack the costs of my services and to avoid payment. If you keep telling people that law is overpriced, then people will believe that regardless of whether or not there is any factual basis to that statement. The hourly rate charged by a lawyer is dependent upon the overheads incurred for that hour. When reading articles on the Internet relating to legal costs this is never mentioned; only the hourly rate as if it is 100 per cent profit. Perhaps
Freedomoftweet Will IsraelFolau’s sacking set aprecedent for free speech? Allaloneandanxious Why solepractitionersaremore vulnerable tomental ill-health Everyone’sapublisher Howa recent rulinghasdramatically changed thedefamationgame Reigning inrobo-debt Will theFederalCourt’soverdue scrutiny righta legalwrong?
Yazdani ( LSJ July 2019) about her four year old sitting in court, who was adamant she wanted to be a judge when she was older. When I was a young child, some decades ago before tra c lights were as common as they are, I wanted to be a policeman directing tra c at intersections. I figured I could do the job as it didn’t look di cult. Makes you wonder about how a four year old perceives the role of a judge. As I approach the age of fifty (50), after more than twenty (>20) years in practice, I find myself puzzled at the per- sistence of some colleagues of writing numbers as both words and numerals in con- tracts and other documents. Today alone I have reviewed three (3) contracts featuring this archaic practice – all from lawyers who, as far as I am aware, are less archaic than me. Why do this? Are we concerned that eight hun- dred (800) years after their introduction in the twelfth (12th) century, Hindu Arabic numbers might be unfamiliar or confusing to our clients? Should we revert to Roman numerals? Or go binary? Is it to avoid mistakes? My experi- ence is that this practice only creates mistakes, when one version is updated and the other overlooked. I’ve cer- tainly seen this happen one (2) or two (1) times. Is it an e ort to impress the other party with an additional veneer of legalese? Possibly, but as a profession I thought we were trying to move beyond that sort of thing. Or is it just done without Alan Friedlander, O’Neill Partners Number’s up on this useless practice
HerExcellencyMargaretBeazleyAOQCon leaving law, pushingboundaries,andwhyshe’snota feminist Amost royalascent
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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.
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! Alan Friedlander has won lunch for four. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 59 I SEPTEMBER 2019
the Law Society should put on the website what it costs to run a private legal practice as a result of the regulations imposed upon it by the government and with the assistance of the Law Society. I would not object to the course of action regarding advising consumers of their rights as long as I had the same ability to enforce my costs as any other business oper- ating in New South Wales. Unfortunately, consumers can complain to the Office of Legal Services and the most trivial of complaints that require an answer. The consumers can seek an assessment of the costs and if the cost of assessor is of a certain political persuasion, then the resulting assess- ment is generally in favour of the consumer. That then requires an appeal which is mostly successful but takes a further 18 months. I amdrawing to the end of my career in law and antici- pate practising for no more than a further 10 years. Any young lawyers entering the practice will need to drastically change the way in which they provide their legal services if they want to make a reasonable living. I cannot see there will be any less legislation regulating lawyers or a change in the government’s attitude in protecting consumer rights as they see it. This will lead to a two-tiered legal system where lawyers will provide for the wealthy and the rest will take what they can get through public or com- munity services. Lawyers that served the general community will no longer be able practise as it will be simply uneconomical to do so.
“Wonderful interview. I appreciated Her Excel- lency’s take on feminism. My grandmother and mother were both doctors (paediatric and anaesthetic) from the 1920s and 1950s. People often said I was lucky to have such feminist role models – but they weren’t feminists. Not in the least. They just got on and did it. They did house- work too and my grandmother worked through WWII when her husband was away. My mother loathed Greer. I so admire Governor Beazley.” – Janet De Castro Lopo, Facebook “I was grateful to attend Her Excellency’s swear- ing out ceremony from the Court of Appeal. A remarkable inspiration for women in the legal profession. It’s pretty simple really: ‘Be a doer.’” – Grayson Gray, Twitter
“This is so nice Em! I didn’t realise you didn’t have shorthand; you’ve made my own lack feel sooo much better!” – Sally Rawsthorne, Twitter
“’Be a doer.’ Great piece @KateAllman_” – Kelly Fedor, Twitter
“The Governor is highly respected and much loved. Such a wonderful appointment. Well done, NSW Government.” – Philip Sutherland, Facebook
Brendan Manning, Director/Principal Solicitor
ISSUE 59 I SEPTEMBER 2019 I LSJ 11
Report shows 20-fold increase inNSW police strip searches
BY KATE ALLMAN
P olice officers in NSW con- ducted almost 5,500 strip searches outside of police sta- tions in one year, and two thirds of those searches found nothing, a new report has revealed. The report, Rethinking Strip Searches by NSW Police , was commissioned by Redfern Legal Centre (RLC) and pub- lished on 22 August by legal academics at the University of NSW. The authors gathered data from NSW Police records, obtained under freedom of information laws, revealing that strip searches were used 277 times “in the field” (outside police custody or in stations) in the 12 months to 30 November 2006. This number jumped to 5,483 in the 12 months to 30 June 2018 – representing an almost 20-fold increase in less than 12 years. Lawyer Samantha Lee, the head of RLC’s police accountability practice and co-author of the report, said she began looking into the numbers when she noticed a rise in anecdotal reports from RLC clients saying they had been strip searched by police. “I started to see a pattern among clients reporting they had been strip searched. Many of these clients were quite young, and the stories they told of being strip searched were extremely traumatic,” she said. “When we delved into police records, we found the numbers of strip searches had gone up quite significantly.” In December 2018, NSW Greens MP David Shoebridge revealed data
showing that strip searches in NSW had increased by 47 per cent in four years to 2018. However, the RLC report found that this trend was not replicated nationally – roadside strip searches con- ducted in Queensland, for example, had declined from 457 in 2016 to 353 in 2018. The RLC report found that many searches in NSW were being conducted with dubious legal justification, and 64 per cent found nothing related to crim- inal offences. “One young woman had been a victim of sexual assault and she was subjected to a full-body strip search at a music festival,” Lee said. “That triggered extremely trau- matic memories of the assault. It was incredibly invasive, and I think a demonstration of the fact police are going beyond the boundaries of the law using strip searches. The law requires a strip search only be used as a last resort.” Young people and Indigenous Australians were disproportionately tar- geted by strip searches, according to the report, with 45 per cent of all recorded strip searches targeting people aged 25 and under, and 10 per cent of strip searches in the field involving Indige- nous Australians, despite Indigenous Australians representing only 3 per cent of the population. The report also highlights that unlawful strip searches are “potentially widespread” in NSW. According to Lee, the “deeply humiliating” practices of removing a person’s clothes, asking
them to squat, cough and bend over are strictly elements of a “cavity search” that are not to be used during a strip search in NSW. “My reading of the law is that police are not allowed to conduct cavity searches in the field,” said Lee. In 64 per cent of strip searches, police found nothing related to a poten- tial crime or criminal activity. No data is publicly available on how many convictions resulted from strip searches in which drugs or dangerous weapons were found and the searched person was charged. The law surrounding strip searches is governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), which Lee said is vague and outdated. The report recommends the law be amended to provide a clearer defi- nition of a strip search, when police can conduct strip searches in the field and in police stations, and to explicitly require that strip searches not be undertaken if there is a less invasive alternative. A coalition of more than 50 organ- isations and members of the legal profession, including former NSW Director of Public Prosecutions Nich- olas Cowdery QC and former Chief Justice of the Family Court Elizabeth Evatt AC, have previously indicated their support for legislative change on the issue, signing an open letter in June to the NSW Police Minister to address the rise in police strip searches as part of RLC’s “Safe and Sound” campaign (safeandsound.org.au).
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NEWTHISMONTH Nominate for the LawSociety President’s Medal The Law Society of NSW is calling for nom- inations for the 2019 President’s Medal, an annual award recognising solicitors who have made significant personal and professional contributions to the improvement of law and justice in the community. Previous recipients include lawyer Deng Adut and Lieutenant Commander Shannon Richards. lawsociety.com.au/presidents-medal Awards for those Nominations are open for the 2019 Charter for the Advancement of Women in the Legal Pro- fession Awards. Recognise the efforts of signato- ries to the Law Society’s Charter by nominating a firm, practice or other organisation employing in-house practitioners which has contributed to the advancement of women in the legal work- place. Nominations close Friday 20 September. lawsociety.com.au/about-us/Law-Soci- ety-Initiatives/advancement-of-women/char- ter/awards Law in the age of biotechnology Law schools have begun teaching neurosci- ence and the law, and criminal courts around the world are finding culpability may be miti- gated or aggravated on the basis of brain imag- ing. What ethics apply to this biotechnology? Join us for an engaging panel discussion on the topic on 17 September at the Law Society. lawsociety.com.au/events/thought-leader- ship-biology-destiny-free-will-and-law-age- biotech committed to inclusion and diversity
Bernard Collaery LAWYER FOR “WITNESS K”, FACING CHARGES OF LEAKING NATIONAL SECURITY INFORMATION
It is with a heavy heart that I shall enter the dock of the courtroom where I have spent my entire career supporting the rule of law. You might forgive me for thinking, after more than 40 years in the law, that I might understand injustice. Clearly I have more to learn.
ISSUE 59 I SEPTEMBER 2019 I LSJ 13
sixminuteswith STEPHEN CUTLER
Central Coast lawyer Stephen Cutler has just notched up 50 years as a solicitor. He tells AMY DALE about the changes he has witnessed in a lifetime of law, his top tips for happiness, and why he has no plans for retirement.
and a couple of hours again on Saturday. I enjoy the quietness of weekend work, but it does mean none of my children have fol- lowed me into law. I joked with them once about not creating a succession plan and they said, “Dad you work too hard, I don’t want to work weekends.” The main thing is to enjoy what you do, but you must have good health as well and go to the gym. I go for a 20-minute walk at lunch- time every day. To have a well-balanced life you need a certain amount of physical activ- ity. Travel has also been important to me. I was admitted at the age of 24 and … left in 1970 to go to a legal practice in London for six months. Following that I went travel- ling for 17 months across Africa and India. I thought I would have one opportunity to do that sort of travel. I just returned from Vietnam and Cambodia, and I thoroughly enjoyed seeing those places for the first time. A few years ago, I went back to university to do my Masters in Applied Laws. It was the first time I had sat an exam in 50 years. Aside fromwork, what keeps you happy and healthy?
Do you have any mentors? [The now late Newcastle solicitor] George Bilbie, who I first saw in a newspaper article when he turned 100 years old and had held a practicing certificate for 70 years. He said in the article he had no plans to retire, because his wife didn’t want him home for lunch. I wrote him a letter after the article. He was kind enough to reply and I subsequently had some dealings with his office. They told me there was not a property law question he did not know the answer to, and that kept his mind going. He obviously had the longevity gene and he swam two to three times a week throughout the whole year. I will be 75 next birthday and I have no plans for retirement. I have clients keeping me very busy. I find it very stimulating for my mind and it’s what keeps me going. I have always said that when I find something better to do, I will do it. So far nothing has challenged the law in that respect. I am in the office Monday through Thursday, and I come in for three or four hours on Friday, Can we assume there are no plans for retirement?
You were admitted to practice half a century ago. Howmuch – good and bad – has changed in law since then? A change that has really been for good is having more women in law. They are leaving us blokes for dead in ability. They are very, very bright. They have worked so hard in their twenties and often by their thirties they are balancing that with having a lovely family. It is a lot of work. When you are expected to work 50 to 60 hours a week, it becomes very difficult to look after a family and keep clients happy. Also, working as a suburban practice, where we specialise in conveyancing and wills and estates, the Con- veyancers Licensing Act (1992) sticks out in my mind as a big change for us. You have spent much your career as a sole practitioner. What do you enjoy most about your job? I quite like working for myself. I have clients who have been with me for many years. In some instances, I have acted for four gener- ations of the one family. Knowing that gives me a bit of a buzz. At some point in your dealings together, you can always find some- thing to have a laugh about.
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BY LINDEN BARNES, SENIOR ETHICS LAWYER
And then there’s the issue of national security and freedom of the press (see p 36) – appropriately a topic for discus- sion in the press. So, do our conduct obligations need updating in the face of all this novelty? Our conduct obligations do date from ages past, but they have proven to be timeless by their applicability to what- ever confronts the solicitors in each of those ages. e introduction of the telephone didn’t change the need to be courteous or to maintain con den- tiality. It just broadened the scope for breaching the obligation.
e laws creating the various courts that we have today didn’t change our obliga- tion to uphold the system of justice above all other obligations. And while heads rolled for alleged treason against the Crown (the real person, not the internet streaming one), we solicitors were always obliged to behave in a way that didn’t bring our profession into disrepute. So, no, our obligations don’t need an update. We’re the ones who need to keep updating with all the changes, but on a secure foundation of those obligations.
Q: With all this new technology, new laws and new issues, don’t our conduct obligations need an update? ose of us who were at the FLIP conference held in Sydney on 25 July were taken on a journey into a future of amazing technologies. We were sur- rounded by robots and AI. We were confronted with the “uberisation” of legal services. On page 30, we have an indepth analy- sis of the new modern slavery laws. How accurate is the idea that slavery is Gone with the Wind? A:
Shedding light on legal costs for over 30 years
Bespoke Costs Mediation
All legal costing services
ISSUE 59 I SEPTEMBER 2019 I LSJ 15
Jodie Vella Promoted to Senior Associate, Dispute Resolution Makinson d’Apice Lawyers
DavidWong Promoted to Senior Associate, Dispute Resolution Makinson d’Apice Lawyers
AndrewDeards Promoted to Senior Associate, Dispute Resolution Makinson d’Apice Lawyers
Shaun Cockle Promoted to Senior Associate Carroll O’Dea Lawyers
Alex Collie Promoted to Associate Carroll O’Dea Lawyers
Katherine Driscoll Promoted to Associate Carroll O’Dea Lawyers
SeanWright Joined as Solicitor, Personal Injury Burke Mead Lawyers Team
Joshua Randall Promoted to Associate Watts McCray
Beth Agar Promoted to Senior Associate Watts McCray
Natalie Chapman Legal Counsel The Wests Group Australia
Sarah Hardey Promoted to Senior Associate DEA Lawyers
Sarah Jones Joined as Consulting Principal Keypoint Law
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
MEMBER ANNOUNCEMENT Law Society upgrading digital security
It is good practice to ensure you are using the latest web browser version of Internet Explorer, Google Chrome, Mozilla Firefox, Safari, or another browser, to ensure the newest secu- rity features are available. Download the latest version of your web browser via the relevant website (for example, google.com/chrome).
Changes to the Law Society’s digital services will be progressively rolled out over the next few months, so the sooner users can upgrade their browsers, the better. If this is likely to cause you significant inconvenience or you have any questions, please contact us on firstname.lastname@example.org or (02) 9926 0343.
Old encryption protocols and ciphers will soon be disabled across all the Law Society’s digital services. This will prevent those using insecure web browsers from accessing our web- sites. While there should be minimal impact for most users accessing the Law Society’s digital services, it is likely that around three per cent of users may be affected by this change.
16 LSJ I ISSUE 59 I SEPTEMBER 2019
HACKATHON Savvy students hackNSWcourts
e teams had to solve one of two real-life legal challenges in 48 hours. e victors in the Law Society’s challenge developed a digital registry of legal technology products for solicitors. e team that won the Supreme Court challenge developed a web-based platform designed to reduce costs disputes in the NSW courts. “ e Law Society hackathon challenge was driven by the fact that the legal profession wants to know more about the available legal technologies and how they can use them to advance their practices and propel them into the future,” said President of the Law Society of NSW Elizabeth Espinosa. Innovation has been high on the NSW legal agenda this month, with the NSW Government announcing that a legal chatbot will soon be on hand in Sydney legal centres to assist vulnerable clients and leave sta free to help those in more com- plex situations. Marrickville Legal Centre will be the rst to use the tech- nology after becoming the rst recipient of a $250,000 NSW Government innovation grant to improve access to justice. Photography: Chris Gleisner
Two teams of hackers successfully conquered the systems of the Law Society of NSW and the NSW Supreme Court, but both parties were thrilled by the intrusion. Far from being an unwelcome invasion, the Law Society and Supreme Court had issued a challenge to pioneer legal technol- ogy that could cut largely paper-based and clogged processes. Ten teams of university students, supported by lawyers, legal techs, technologists, and business and marketing professionals took part in the #InnovateLaw2019 hackathon.
The Supreme Court of New South Wales Annual Corporate and Commercial Law Conference What is the future of the Australian business corporation? Tuesday 29 October 2019 | Banco Court, The Supreme Court of NSW | 4 CPD Units
The Honourable TF Bathurst AC Chief Justice of NSW
The Honourable Justice James Edelman High Court of Australia
Professor Colin Mayer CBE FBA Peter Moores Professor of Management Studies, The University of Oxford
Catherine Livingstone AO Chairman, Commonwealth Bank of Australia
Daniel Crennan QC Deputy Chairman, ASIC
The Honourable Dr R P Austin Barrister, Level 22 Chambers
Register at sclc.lawsociety.com.au
ISSUE 59 I SEPTEMBER 2019 I LSJ 17
WOMEN LAWYERS ASSOCIATION Former LawSociety President, head of Human Rights Commission amongwinners atWomen Lawyers’ Awards
From left: Human Rights Commissioner Rosalind Croucher AM and former Law Society President Pauline Wright, winners at the annual WLANSW Awards.
F ormer Law Society of NSW President Pauline Wright and Human Rights Commission President Rosalind Croucher AM were among the award recipients at the 2019 NSW Women Lawyers’ Achievement Awards, hosted by the Women Lawyers’ Association of NSW (WLANSW) in Sydney on 23 August. A total of 17 winners were chosen from more than 100 entries at the an- nual Gala Presentation Dinner, which was attended by more than 500 people and was co-sponsored by the Law So- ciety of NSW. Former President Wright claimed the prestigious title of “Woman Law- yer of the Year” and was recognised for her commitment to legal aid, access to justice and the rule of law over a long career – 20 years of which she has ded- icated to the Central Coast firm of which she is now a principal, PJ Don- nellan & Co. Wright served as Presi- dent of the Law Society in 2017 and is current Treasurer for the Law Council of Australia as well as 2019 President of the NSW Council for Civil Liberties.
Rosalind Croucher, who gave the keynote speech on the night, was pre- sented with a Lifetime Achievement Award for her significant service to the law and women over many years. Croucher is an Emeritus Professor, current President of the Australian Hu- man Rights Commission, former Dean
“Rosalind has made an enormous contribution to WLANSW with her active presence and involvement. As an organisation we are so much richer for it,” said Sydney barrister and President of WLANSW Larissa Andelman. This year’s awards also introduced a new category, Regional Woman Law- yer of the Year, which was awarded to Shoalhaven lawyer and Accredited Specialist in Commercial Litigation Lorri Field. Andelman said the judges received a “large number of nomina- tions from outstanding candidates” in the new category. “For women practising in rural and regional areas there are often the additional hurdles of being without a supportive network of women,” An- delman said. “However, we have been blown away by the stories of women supporting other women and support- ing members of their communities by participating with community organi- sations, schools and local councils over and above their role as solicitors.” The full list of finalists and winners is online at womenlawyersnsw.org.au
“For women in rural and regional areas there are often the additional hurdles of being without a supportive network
of women.” Larissa Andelman
of Macquarie Law School, a Member of the Order of Australia, and an Honor- ary Life Member of WLANSW.
18 LSJ I ISSUE 59 I SEPTEMBER 2019
PUBLISHAWARDS LSJ and Asian Jurist scoop five nominations for national Publish Awards
T wo magazines published by the Law Society of NSW have been named nalists in ve categories of the prestigious annual Mumbrella Publish Awards. LSJ was for the fth year running named a nalist for Association or Member Organisation Publication of the Year – a category it has won three times since the magazine was relaunched in 2014. Managing Editor Claire
running for Single Article of the Year for her ground-breaking cover story on sexual harassment in the legal profession published in December 2018. LSJ Online is up for Website of the Year (Business), while Asian Jurist, LAWASIA’s agship pub- lication, earned a nomination for Magazine Cover of the Year (Busi- ness) alongside INTHEBLACK and Company Director magazines. e Publish Awards recognise the
LSJ and Asian Jurist will compete with publishing giants.
Cha ey was named a nalist for Editor of the Year (Business) and Online Editor Kate Allman has been nominated as a nalist for Young Writer of the Year. Allman is also in the
best in Australia’s print and online publishing industry across a variety of categories and the 2019 winners will be announced at a gala dinner in Sydney on 19 September.
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ISSUE 59 I SEPTEMBER 2019 I LSJ 19
For the full round-up of Law Society advocacy, see page 66.
Highwind helps cops sni out suspect
Draft Residential Tenancies Regulation 2019
The Property LawCommittee contributed to a submission to NSW Fair Trading. The submission supported most of the pro- posed changes to the Regulation. In relation to the proposal to expand the list of material facts that landlords or their agents must not knowingly conceal from a prospective tenant, we suggested that the material fact should be referable to the receipt of relevant notices, to provide more certainty to landlords and tenants. We also raised concerns with the breadth of the pro- posed new material fact ‘signi cant health or safety risks’. Migration Amendment (Strengthen- ing the Character Test) Bill 2019 The Human Rights Committee contrib- uted to a submission to the Law Council regarding the Senate Legal and Constitu- tional A airs Committee inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2019. e Law Society highlighted concerns regarding the potential infringement of Ch III of the Constitution , and implications on the right to family, the best interests of the child and the principle of non-refoulement . Centrelink Compliance Program T he Law Society provided comments on a Law Council of Australia discussion paper concerning the Online Compliance Inter- vention automated debt recovery system operated by the Department of Human Services through its agency Centrelink (referred to colloquially as ‘Robodebt’). e submission was informed by the Public Law, Privacy and Data Law, Human Rights and Indigenous Issues Committees. e Law Society echoed the Law Council’s concern about whether calculating debts by averaging income from ATO data satis es the require- ments of ss 1222A and 1223 of the Social Security Act 1991 (Cth) to create a debt .
A US man on the run from police has been betrayed by his own carelessness when he let out an audible fart while hiding in parklands in Liber- ty City, Kansas. e Hu ngton Post spilled the beans on the man wanted for possession of a controlled substance. He apparently let out a di erent uncontrolled substance at the wrong time, allowing police o cers to sni out his hiding spot. Clay County Sheri ’s O ce caught wind of the arrest and posted the caution- ary tale on Twitter. Plenty of Twitter users appreciated the opportunity to let rip with some atulence wisecracks.
DIY parking permit fails pub test NSW Police have ned a P-Plate driver who parked in a disabled car spot with what appeared to be a photocopied permit. According to news.com.au, two o cers noticed a Range Rover with P-Plates parked in a disabled park in Croydon Park at about 7pm on 16 August. When the police approached the 28-year-old female driver, she pre- sented them with a Mobility Parking Scheme permit. On closer inspection, they could see it was “a colour photocopy of an actual card with numerous numbers altered”. Police seized the fake permit and ned the woman $572. She retaliated in a Facebook post saying police had “no integrity” – which drove many other users to pile on. “If she had any integrity, she wouldn’t dare take a space away from a dis- abled person when she is able to walk,” one woman commented. “It’s lazy, it’s disrespectful and it is entitlement at its nest.”
20 LSJ I ISSUE 59 I SEPTEMBER 2019
IBA REPORT #UsToo report: LawSociety maintainsmomentum for change
S exual harassment and bul- lying in the legal profession will only be adequately addressed when there are proper prevention strategies to com- plement robust complaints-handling processes, experts told an audience of 100 at a Law Society of NSW event on 1 August. President of the Law Society of NSW Elizabeth Espinosa joined Sex Discrimination Commissioner Kate Jenkins, prominent human rights barrister Kate Eastman SC, and
to the more senior status of the per- petrator, fear of repercussions, or the incident being endemic to the workplace. “What is ironic about the legal industry [is that] this is the indus- try that does understand the rules,” Jenkins said. “If even lawyers are not prepared to use reporting systems and the laws, then it tells us the laws are not doing their job.”
From left: panellists Michael Harmer, Kate Allman, Elizabeth Espinosa, Kate Jenkins, Kate Eastman SC, Justice Melissa Perry and report author Kieran Pender.
The panel debated whether workplace policies on bullying and sexual harassment were doing their job of preventing such behaviour. “Having a policy isn’t prevention. Policies can often be a get-out-of-jail-free card for CEOs. They are not doing the job of stopping sexual harassment,” Jenkins said. Among the IBA’s recommendations were the introduction of customised training, improved data collection, and trans- parency measures, as well as flexible reporting models. President Espinosa said the data from the IBA report “is very useful to guide the Law Society’s next steps”. “If we don’t (maintain) the momentum, then this will just be another story in three years,” Espinosa said. Jenkins will release the Australian Human Rights Com- mission’s National Inquiry into Sexual Harassment in Australian Workplaces by the end of 2019.
Chairman of Harmers Workplace Lawyers Michael Harmer to discuss the recent findings of an International Bar Associ- ation (IBA) survey into bullying and sexual harassment in the legal profession, in a panel moderated by LSJ Online Editor Kate Allman. The IBA’s 2019 report “Us Too? Bullying and Sexual Harassment in the Legal Profession” found both sexual harass- ment and bullying were rife in the profession worldwide, with one in two female respondents saying they have been bullied and one in three women indicating they had been sexually harassed. Males in law have also been significantly affected, with one in three reporting they had been bullied and one in 14 experiencing sexual harassment, according to the report. Most victims – 57 per cent of bullying cases and 75 per cent of those sexually harassed – did not report, usually due
Cross-examination Test your legal knowledge ...
1. Australia’s largest prison is nearing completion. In which state will it be located?
5. Which actor recently discontinued his defamation lawsuit following an acquittal on a sexual assault charge? 6. Ludlows has recently released a new line of Bar jackets. What are they? 7. A recent NSW inquiry found it did not have any reasonable doubt about the conviction of which convicted killer? 8. What was the now-shelved proposed government bill that sparked the protests in Hong Kong?
9. Who was recently appointed as the NSW Building Commissioner to investigate and pursue disciplinary action for misconduct in the building industry? 10. The heads of which three media companies fronted the parliamentary inquiry into Australia’s security laws and their impact on reporting?
2. What is the hard Brexit deadline date?
3. The recent highly charged Pacific climate forum was held in which country?
4. What is the maximum penalty for
procuring an abortion under the NSW Crimes Act 1900?
Answers on page 63
ISSUE 59 I SEPTEMBER 2019 I LSJ 21
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