LSJ September 2021

A newera The Australian women lawyers dominating the world stage Must showcause Why top talent expects firms to take a stand on social issues First, do no harm What we can learn from the UK treatment of the ‘serious harm’ test Able to help How lawyers can improve the system for people with disability

ISSUE 81 SEPTEMBER 2021

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POINT Are vaccine passports a ticket to freedomor destined for the courts?

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ECTIONS

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50

ge Roger Dive retired as f the NSW Drug Court in fter 17 years leading the , 32 years on the bench, a century working in the ession. He reflects on an iring and storied career. 24 Hot topic

36 Firmvalues

50 Extracurricular

Protests are becoming an unfortunate feature of the pandemic. How does the democratic right operate in lockdown?

Sam McKeith explores how a law firm’s stance on social issues is becoming more important to new hires 40 Women on the world stage Australian women are dominating senior promotions in global law firms. Kate Allman speaks with a few 49 Mindset What’s the most effective way to deliver uncomfortable feedback? Rachel Setti has tips for tough conversations

Meet Alice Fraser, the lawyer-turned- comedian, ready to deliver much- needed laughs after the pandemic 52 Morning lark or night owl? Angela Tufvesson explains why you should work with your “chronotype” to ensure optimum productivity 60 Travel A vaccinated, borderless future is not far away; make plans to visit Queensland with tips from Ute Junker

26 Farew ll, Judge Dive

‘Law was a fascinating master’ JUDGE ROGER DIVE The Senior Judge of the NSW Drug Court reflects on 32 years at the bench and 50 years working in law 30 Cover story Vaccine passports might be our ticket to new freedoms but how far can they go, legally? Amy Dale examines

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60 87

66 Advocacy

80 Defamation

6 From the editor 8 President’s message 10 Mailbag 14 News 23 Expert witless 23 The LSJ quiz 28 A Country Practice 46 Career matters 48 Career coach 49 Mindset 54 Fitness

The latest in law reform from the Law Society’s policy lawyers 68 Ethics andPracticeManagement Balancing Legal Project Management with lawyers’ professional obligations

The new NSW serious harms test is identical to that in the UK, so could their case law be instructive here?

82 Disability law

Insights and practical tips for working with clients with disability and engaging with the Royal Commission

71 Class actions

Continuous disclosure laws - a seismic change in Australian class actions? Or a mere shift in the sand?

84 Evidence and Succession

The importance of contemporaneous medical evidence and treating doctor opinion in mental capacity cases

74 Corporate law

Declaring dividends and other lessons for company directors from Dick Smith Holdings 76 Privilege and litigation What junior solicitors wish you knew about privilege reviews 78 Employment High Court rules on casual employment, and the primacy of contracts over hopes and expectations

87 Taxation and Property

Handing down the family farm without NSW duties - a guide to the new Revenue NSW Ruling

90 Case notes

Expert updates on the latest High Court, Federal Court, NSW Court of Criminal Appeal, Family Court, and elder law and succession judgments

55 Library additions 56 Destination guide 62 Books and lifestyle 64 The case that changedme 106 Avid for scandal

4 LSJ I ISSUE 81 I SEPTEMBER 2021

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Welcome to LSJ September

W ho would have thought we would be here again? As Greater Sydney pushes into its third month of lockdown, and restrictions continue in the regions, it isn’t just the empty buildings and streets that look di er- ent. For the second month in a row, LSJ is not publishing a print edition. As most of us continue to work from home in accordance with government directions, we want to ensure your favourite legal magazine does not land in a deserted o ce but is instead available anytime, anywhere, on your favourite device. e current lockdown wave brings with it new upheavals, but also new rea- sons for hope. Unlike 2020, vaccines are here and, at the time of going to press, accessible to the entire NSW adult population. Many who have received both doses of either P zer or AstraZeneca are starting to ask about incentives: when they will be allowed to visit family, sit down in a restaurant or café, go to the gym or, yes, resume travel without snap state border closures or stints in hotel quar- antine? Vaccine passports have been agged as the golden ticket to freedom but, as Amy Dale’s analysis on page 30 explores, enforcing them could be a bumpy ride; especially for many small businesses already buckling under the strain of prolonged closures. Many have taken to the streets to protest the continuing restrictions, in crowd- ed scenes that are cheered by some and scorned by others. Kate Allman’s article considers what comes rst when freedom of movement puts public health at risk.

ISSN 2203-8906

Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor Kate Allman Journalist Amy Dale

Art Director Alys Martin Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2020 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 o•cial 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.

From all of us, stay safe and well, e LSJ Team

Contributors

Ross Foreman SC Corporate law p74 Ross Foreman is a commercial barrister in PG Hely Chambers. Here, he and colleagues Kate Boyd and Jerome Entwisle examine the latest guidance on the requirements individual company directors must satisfy before declaring share dividends.

Dung Lam Tax and Property p87 Dung is a Principal of West Garbutt Lawyers and a member of the Law Society’s Property Law Committee. Here, she & Marlon Camacho explain Revenue NSW’s new Ruling & the complexities of handing down the family farm duty free.

Amy Dale Cover story p30

Kate Allman Feature p40

27,578 * *AUDITED SEPTEMBER 2020 DISTRIBUTION

Amy is a journalist at LSJ . She previously worked as a government social policy and media adviser, as a court reporter, and has a Masters of Criminology. This month, she explores the legalities of introducing COVID-19 vaccine passports.

Kate Allman is a multiplatform journalist and presenter with a bachelor degrees in law and journalism from UNSW. This month, she exclusively interviews the Australian women lawyers smashing glass ceilings as leaders of global law firms.

Anewera TheAustralianwomen lawyers dominating theworld stage Mustshowcause Why top talentexpectsfirms to takea standon social issues First,donoharm Whatwecan learn from theUK treatmentof the ‘seriousharm’ test Abletohelp How lawyerscan improve the system forpeoplewithdisability

ISSUE81 SEPTEMBER2021

ISSUE81 SEPTEMBER2021

TIPPING

POINT Arevaccinepassports atickettofreedomor destinedforthecourts?

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

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6 LSJ I ISSUE 81 I SEPTEMBER 2021

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President’s message

O n 1 September, the new Federal Circuit and Family Court of Australia officially opens its doors. It marks one of the most significant structural changes to the family law system since the establishment of the Family Court in the mid-1970s. Our recent webinar featuring the head of the new Court, the Hon- ourable Chief Justice William Alstergren, attracted significant interest from the profession, with more than 1200 practitioners registering to watch the event live or on demand. Chief Justice Alstergren outlined his vision for the Court, stating that “the courts will bring efficient and effective delivery of justice, common processes to simplify our court program and will make it a much more cost-effective system for all litigants.” For the first time there will be a “single point of entry” into the Australian family law system. His Honour also stressed that compliance, which he said has long been an issue in the family law system, will be a real focus going forward. To this end, the new court will introduce a national contravention list, which is aimed at dealing swiftly with alleged breaches of court orders. The Q&A session during the webinar was exceptional and I’d like to thank Chief Justice Alster- gren for taking the time to answer a staggering 60 questions from the online attendees. Practitioners can access the webinar via the Law Society’s on de- mand portal and also subscribe for regular updates from the new Court on its website. I wish Chief Justice Alstergren and all involved in the establishment and ongoing operation of the Federal Circuit and Family Court of Australia every success with the new structure. With COVID-19 lockdown restrictions in place until at least the end of September, we will continue to deliver our Continuing Pro- fessional Development and Events program online. While I miss at- tending face to face events, the online format has certainly increased access for members outside Greater Sydney, to the point that we’ve seen registrations increase by 300 per cent in the past 12 months.

This certainly gives us food for thought beyond the pandemic. Upcoming online events include our annual Government Solicitors Conference on 7 September and a Staying Well in the Law panel discussion on 9 September to mark R U OK? Day, which will be facilitated by Christine Morgan, CEO of the National Mental Health Commission. Another upcoming event is Dementia Action Week, which takes places from 20-26 September. Demen- tia affects close to half a million Australians and that number is set to double in the next 25 years. My family is one of many who have experienced the devastating impact this disease has on those who are living with, and those caring for someone, with dementia. It is why I chose the Dementia Australia Research Foundation as my President’s Charity for 2021. Living with dementia can be lonely. Studies have shown people with dementia are more than twice as likely to not see any friends, more than three times more likely to not have a confidant and almost three times as likely to not have a friend to call on for help. Increased social isolation during the pandemic means people living with dementia and their families and carers are even more vulnerable to adverse mental health outcomes. During Dementia Action Week 2021, Dementia Australia is providing simple and practical tips on how to give a little support to a person living with dementia as well as their family, friends and carers. A little support can go a long way to ensuring that people living with dementia live active and fulfilling lives many years after diagnosis.

Juliana Warner , President, Law Society of NSW

8 LSJ I ISSUE 81 I SEPTEMBER 2021

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ISSUE 81 I SEPTEMBER 2021 I LSJ 9

Mailbag LETTERS TO THE EDITOR

in thg

Allthe legal ladies Womenon topandmore surprises in the latestprofessiondata Operationgreenwash Whyclimatechange iscreating newpocketsof risk for lawyers Digitalaccountability What theOnlineSafetyBillwill mean foronline serviceproviders Bankruptcyorbust Thepitfallsofpursuingbankruptcy on thebasisofassessedcosts

ISSUE80 AUGUST2021

Vale Hal Woo en On 27 July, the UNSW commu- nity was deeply saddened to lose Emeritus Professor Hal Wootten AC QC, aged 98, the founding Dean of what is now the Faculty of Law & Justice. Many tributes to Hal poured in, from family, friends, colleagues and from the many whose lives were touched in some way by the extraordinary breadth of his work. His was not just a long life, but a large one and in his case, the vignette may reveal more than an attempt to view the full canvas. This strikes me as true in respect of a story that oŒers an appreciation of Hal’s remarkable achievement in the establish- ment of the UNSW law school. According to a 1972 Bulletin profile on the new Dean Woot- ten, in his very first class at UNSW, Hal handed out copies of the National Service Act, asked the students to work out how it might apply in certain cases – and then left the room. He snuck past the door half an hour later, “gratified to hear vociferous discussion!” That the class was the abso- lute antithesis of the traditional law lecture that Hal had found so uninspiring and deficient in his own legal education, is obvious. But this brief scene also oŒers a reflection of Hal Woot- ten’s character and his unique contribution to Australian legal education. First, is his pragma- tism. Hal described himself as a barrister, not an academic and he chose to commence with a practical exercise rather than with a discussion on the history or theory of the law. Doubtless those dimensions were seized on later, but the first class went straight to the skills of interpre- tation and case analysis. Second, his focus on activity over pas- sivity. Hal believed that learning happened through engagement, well before legal education embraced the terminology of “constructed” or “student-cen- tred” learning. This quality

ISSUE80 AUGUST2021

Why lawyersare leading thepushtogobush inaCOVIDworld

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explained Hal’s approach to his own learning and was perhaps most memorably demonstrated by his move to Ramallah for sev- eral months in his eighties so as to better understand the Pales- tinian struggle. Third, and most importantly, Hal had the cour- age of his convictions. It takes some confidence as a teacher to remove the guardrails and let students control the discussion. But to create space for students to learn by absenting yourself from the very first class of the

first intake of students in the law school you have been charged with establishing, was both bold and productive! That class happened 50 years ago this March, and the law school has obviously changed in many ways since it first opened its doors. Hal left the law school not long after- wards after being appointed to the Supreme Court of NSW in 1973. He left the court 10 years later, aged 61. His post-judicial career probably ranks among

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The more risks we take off the table, themore deals you can keep on it.

the richest in Australian history – Chairman of the Australian Press Council, President of the Australian Conservation Foundation, a Royal Commissioner into Aboriginal Deaths in Custody, and Deputy President of the Native Title Tribunal. But Hal’s influence on the law school endured, not least through the continued presence of some of the talented staff he had hired, but also via the purpose he had articulated for it with such clarity. His oft-quoted words that “a law school should have and communicate to its students a concern for those on whom the law bears harshly”, greet staff and students when entering the Faculty to this day – posing a reminder, and a challenge, for us all. Two manifestations of that ethos at UNSW are also celebrating their own anniversaries this year. The first is the Indigenous Law Centre (ILC), now marking 40 years as a research centre dedicated to the recogni- tion, protection, and development of the rights of Indigenous peoples. The origins of the ILC go back to Hal’s role in the establish- ment of the Aboriginal Legal Service in 1970 with members of the Redfern community which also involved the legal profession and

law students. The second is the Kingsford Legal Centre, also commenced in 1981, and through which students experience legal practice while contributing to the University’s local community as a pro bono service. Hal was very far from being a remote or merely emblematic figure in the life of the Faculty he created. He was a regular visitor, and not just for the annual lecture in his name initiated by one of his decanal successors, Professor David Dixon. On these occasions, Hal would approach members of staff to ask what they were working on or teaching and always have something valuable to impart in conversation. Hal Wootten “lived greatly in the law” to use an expression of Justice Holmes that he memorably invoked – more than enough for one lifetime, even one as long and rich as his own. Hal’s achievements were many and diverse, and to the benefit of the nation in ways that will not be forgotten. Amongst these, his founding of the UNSW law school over half a century ago is just one. But his influence still guides our work and will con- tinue to be felt by successive generations of students to come. Professor Andrew Lynch, Dean, UNSW Law & Justice

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Vale Bill Thompson OAM The Law Society of NSW remembers the contributions of Bill Thompson OAM to the legal profession and we are saddened by his passing on Tuesday, 3 August 2021, aged 63 years. Bill was a founding member of the Law Society of NSW Rural Issues Committee and regularly appeared as a guest speaker at the Annual Rural Issues Conference. He will be remembered for contributions to advocacy for amendments, together with a number of Committee members, to the Duties Act 1997 (NSW) in respect of intergenerational farming transfers. Our thoughts are with his family and friends at this time.

ISSUE 81 I SEPTEMBER 2021 I LSJ 11

Mailbag LETTERS TO THE EDITOR

Features COVERSTORY

COVERSTORY

“When IarrivedatUNSW inmy firstyear,everyonewas talking aboutwhatSydneyhigh school theyattended– Ihadneverheardof these schools. Iwasstunned.” JASONO’NEIL

“Icame fromasingle- parenthouseholdandwas thefirst inmy family togo touniversity.Therewasno easy road into lawschool and togetadmitted to legalpractice.” ARLIAFLEMING

“Let’s just say this: it’s moreoften thatJohn moveshis sonMark’s admission, thanHassan moveshisdaughter Amira’sadmission” ZAAHIREDRIES

“Lawdegreesarealready incredibly expensive, Iwillfinish thisyear withabout$60,000 indebt. If Iwas applying foruniversity thisyear,with the fee increases, I’ddefinitelybe reconsideringmyoptions.” TONIMUDDITT

A PROFESSION FOR THE WEALTHY? e enduring problem for diversity in law

ISSUE 73 I DECEMBER2020 I LSJ 29

28 LSJ I ISSUE 73 I DECEMBER2020

Not just a profession for the wealthy I just wanted to let you know that I just read your article (December 2020) and really appreciate you writing on the subject! I want to make it a pet project at my firm to do something about this, but there is so little written on the subject! So thanks! Articles like this make it easier for me to start a conversation with my colleagues . Trina Malone Pizzazz and polish I like the idea of the LSJ “going digi- tal”, and this will be the future if wider publishing trends are any indication. However, by “going digital”, your readers have yet another document to view on a backlit screen, which is probably not good for “young eyes”, and is definitely a prob- lem for “older eyes”, certainly by day’s end. It is diŒcult to do justice to the content published in the LSJ , given its typeface, without also having the capacity to alter fonts and backgrounds in the manner cus- tomarily supported by dedicated reading apps. It is also handy to be able to high- light a word and find its meaning, without having to trigger the Google search engine (or Bing) or a dictionary app as a separate transactional step, particularly as ready access to a dictionary (legal or otherwise) is simply not realistic given our newmobile working methods. If we are serious about going digital, readers will surely need the capacity to use a viewing platform that allows for changes to font and background, the removal of dual columns, easy bookmarking, syncing between devices, and convenient access to a dictionary (for those of us who like to use one). People are already disinclined to use resources that are diŒcult to access or

which require extensive reading, and the LSJ is unlikely to survive in a multimedia future, as a publication ‘for reading’, unless it does more than digitally reproduce the written page. I personally doubt that tra- ditionally styled publications “for reading” have much of a long term future, except as a resource for research, and even then such publications will need to be easy to view on a mobile device with a small screen, quickly searchable and greater than the printed word. At the start of the third decade of the twenty first century, even serious publications need pizzazz as well as polish. Roger Gormly Party like it’s 2020 This letter has been prompted by the August LSJ mentioning, as it did, it was your 80th edition (A word from the editor), as well as featuring 23 year old law student Olympian, Rohan Browning (“Racing towards a career in law”). Well, just quietly, as it happens my unrestricted practising certificate In 2020 was its 50th edition. In past years, the Law Society has invited those celebrating that milestone to a luncheon in the Society’s dining room, and also to its annual ball. Due to COVID, regrettably, neither occurred. Wouldn’t it be nice - nay, it would be nice - if at least one of those events if not both could be reconvened once lockdowns end? After all, Rohan still managed to attend the Games later - albeit with all medal lanyards displaying 2020. Surely, those who’ve sur- vived 50 years in practice deserve at least a lunch - if not a medal? Incidentally, in our cohort last year was a former president. Hope that helps the cause. Edward Loong

THE RIGHT PATH IS NOT ALWAYS CLEAR Our Professional Support Unit can show the way Contact our experienced solicitors for confidential guidance on ethics, costs and regulatory compliance. lawsociety.com.au/psu

12 LSJ I ISSUE 81 I SEPTEMBER 2021

“Congrats! Maybe he uses ‘Carbolic Smoke Balls’ to give him the extra edge?” – Valentine Tse, LinkedIn “Congratulations Rohan, we watched you with pride!!” – Nina D, LinkedIn “What a legend, go Rohan!” – Emma Salkavich “Amazing. Irrespective of winning or losing tonight, an absolutely phenomenal achievement. Well done!” – Marie-Ilyse Eliatamby, LinkedIn “Great marketing right there: ‘Lawyer on the run’” – Michael Sutherland, LinkedIn

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“Really enjoyed reading the digital mag - maybe this is another positive change for the legal profession- online courts, virtual mediations and now, digital LSJ. All positive and e–cient changes.” – Jacqueline Townsend, LinkedIn “I am loving the fact I can download my LSJ! Best.Legal.Publication.Ever. And it means I can store it electronically! My Dad still has boxes of LSJs and caveats that he is still shredding from [decades ago]!” – Andrew McCormack, LinkedIn

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ISSUE 81 I SEPTEMBER 2021 I LSJ 13

Briefs NEWS

Specialist AccreditationConference highlights hot topics in law

BY KIRRILY SCHWARZ

The Family Court of Australia and Federal Court of Australia have launched a new project designed to enhance the health and safety of litigants as they navigate the family law system.

As LSJ previously forecast in November last year , it’s known as The Lighthouse Project and relies on four key compo- nents: early risk screening through a secure online platform, early identifica- tion of safety concerns, assessment and triage of cases by a specialist team who will assist with case management, and referral of high-risk cases to a dedicated court list. “When we designed this risk-screen- ing process, we did a jurisdictional re- view to look at what was happening in courts around the world, and all family courts are experiencing the same issues - that is, high numbers of cases with fam- ily violence,” said Lisa O’Neill, a senior registrar at the Family Court. The initiative aligns with the merger of the two courts, which officially begin operation on 1 September. It’s one of many changes announced during The Law Society of NSW’s annu- al Specialist Accreditation Conference, held virtually on 5 August. The confer- ence encompassed a full day of program- ming in each sector of business law, em- ployment and industrial law, family law, personal injury, property law, and wills and estates. “These are certainly strange times in which we are still living,” said Juliana Warner, President of The Law Society of NSW, in an address. “This conference is such a staple of the [specialist accredita- tion] scheme’s operation and I am heart- ened that, notwithstanding the current

public health challenges, our expert speakers will still be heard by an appre- ciative community of specialists.” Discussion focused on numerous hot topics, such as Sydney’s booming prop- erty market. Business lawyers dived into the judge- ment in BP7 v. Gavancorp , a decision handed down in the Supreme Court of NSW in March 2021. It discussed the matter of “call options”, which gives the purchaser the right to buy property at the exercise price at or within a specified time, and “put options”, which gives the vendor the right to sell the property at the exercise price at or within specified time. The matter dates back to 2018 when there was a strata block of 14 units at Cronulla. The developers and vendors exchanged put and call options for the sale of the whole block – but there were 14 different deeds. They were all interre- lated, so exercise of one had to occur at the same time as the others. When the deal ran into difficulties, the distinction between put and call options became critical. The cooling off periods became a source of contention, making it clear that vendors must always obtain a standard section 66W certifi- cate if they plan to act on a put and call option in a contract of sale. “All of us are familiar with what used to be called the Green Pages or the Blue Pages of the standard contract for sale, and are familiar with the standard certificates which must be provided. Plastered all over

those pages are the warning notices, and similarly for options, there are warning notices,” said Geoff Farland, a barrister at University Chambers. “That should give every practitioner cause to pause and ask, ‘Have I dealt with that cooling off regime effectively in this contract?’” Employment lawyers, meanwhile, dove into disability and employment. About 2.1 million Australians with a disability are currently of working age and 53 per cent are employed full- time. However, many people living with disabilities still face segregation in the workplace. Human rights and employ- ment law barrister Kate Eastman SC said lawyers should be asking key questions about inherent requirements of each job. How are they determined? How are reasonable adjustments determined? Who determines them? Is it always nec- essary to rely on evidence from medical practitioners and allied health profes- sionals? Can you rely on an employee being able to describe what they can and can’t do and relying on their word? “For some people, this might be the last frontier in relation to inclusion,” she said. “This area is often overlooked when we look at other areas of discrimination law, particularly in the current climate of looking at our response to sexual ha- rassment and sex discrimination.”

For more information about becoming a NSW accredited specialist visit lawsociety. com.au/specialistaccreditation

14 LSJ I ISSUE 81 I SEPTEMBER 2021

NEWS

Influencer

NEWTHISMONTH FLIP Conference 2021

by

The annual must-attend legal conference returns in 2021 with an impressive line- up of speakers including internationally renowned legal sector analyst and author Jordan Furlong, former Australian Human Rights Commissioner Ed Santow, and several pre-eminent Australian corporate lawyers from top-tier firms. Commissioner of Resilience NSW Shane Fitzsimmons will feature in a session on resilience for the legal profession amid COVID-19. For the program and registration see lawsociety. com.au/flip-conference-2021 Nominations now open for President’s Medal Do you know a NSW solicitor who has made a significant personal and professional contri- bution to the improvement of law and justice in the community? Nominate them for the Law Society of NSW President’s Medal 2021 via lawsociety.com.au/presidents-medal Nominations close Wednesday 29 September. RUOK? Day event In collaboration with NSW Young Lawyers and its 2021 charity partner, Minds Count Foundation, the Law Society of NSW is hosting a Staying Well in the Law panel event to mark R U OK?Day on Thursday 9 September, focusing on how to practically ask, “Are you ok?” CEO of the National Mental Health Commission Christine Morgan, and Chair of Minds Count Melin- da Upton will feature on a panel discussing the importance of normalising mental health conversations with colleagues. Law Society of NSWCouncil election 2021 Nominations for the forthcoming Law Society of NSW Council election are open and must be received by the Company Secretary of the Law Society not later than 4pm on Monday 20 September. There are seven vacancies to be filled this year, each with position for a three-year term, plus one vacancy to be filled by appointment of a Young Lawyer Councillor for a one-year term.

HalWootten Legal giant, 1922-2021

Life in the law was what you made it, not what some miserable lecturer in Legal Ethics reduced it to

ISSUE 81 I SEPTEMBER 2021 I LSJ 15

Briefs NEWS

Taylah Gray is a proud Wiradjuri woman and lawyer for the Aboriginal Legal Service. She is currently completing her PhD on Native Title at the University of Newcastle. In July 2020, she successfully defeated a motion by the NSW police in the Supreme Court to block the Newcastle Black Lives Matter protest. Gray tells FLOYD ALEXANDER-HUNT about her plans for the future. sixminuteswith TAYLAH GRAY What made you want to study law? I’ve known since I was a little girl that I wanted to be a lawyer. As I went through the schooling system, I became more acute- ly aware of my Aboriginality and the experiences my father had to go through as a stolen generations survivor. This only inspired me more. Ironically, I failed all my year 11 and 12 assessments for legal studies. It made me think I wasn’t smart enough to do law but during university, I attended a protest about the forced closure of Aboriginal communities. I found myself at the front of the march holding a banner. It was in that moment that I decided I am good enough to do law and I haven’t looked back since. Tell us about your PhD? I wrote a thesis in my final year of law school and ended up top- ping the class. I loved the topic Native Title so much I turned it into a PhD. I was so fascinated by the world of property law – the way western people view property and the way First Nations people view property, I thought how can I marry these two so everyone can come together? My PhD is about finding solutions to get to the bottom of this sovereignty issue. We’ve got so many learned diplomats and intellectuals in this field yet they’ve failed to solve this great problem of sovereignty. How can the legal profession better accommodate Indigenous clients and issues? I think police should have less powers. Removing smaller pow- ers of arrest such as swearing would make a huge difference. Also making sure that police are not investigating police re- garding deaths in custody. We need to stop incarcerating Ab-

original people. We have the highest incarceration rates in the world, not just in Australia. What is the biggest obstacle you’ve faced? I think having a different perspective to white academics. In my opinion, it’s sometimes reflected in my grades and feedback where I’ve opposed my lecturer’s viewpoint. There’s a lot of barriers for Aboriginal people. Having to go to the Supreme Court every time we can’t work things out with corporations. We’re never able to negotiate because we don’t have the bar- gaining power to do so, we don’t have millions of dollars be- hind us. I hope we have a treaty and that there’s a First Nations court functioning. I hope my people aren’t the most incarcerated people in the world and that children aren’t taken at the rates they currently are. We should be focusing on rehabilitating and investing in them, not incarcerating them. Education is the way forward. I like what Nelson Mandela says, that edu- cation can be used as a weapon to change the world. I plan on using my education to change the systems in place to make it equitable for everybody. What do you like to do in your spare time? I love reading and I love playing sport. I’m particularly pas- sionate about rugby league and football. I also love the water and spending time with friends. There’s more to me than just being a lawyer and an academic! What is your hope for the future of the legal profession?

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NEWS

HUMANRIGHTS Legal and human rights groups alert to ‘grave risk’ in Afghanistan

Members of the Australian legal com- munity have expressed grave concerns for those at risk in Afghanistan follow- ing the recent fall of the country’s gov- ernment to the Taliban. e Law Council of Australia, the Australian Bar Association, Human Rights Watch, the Refugee Council of Australia and the Australian Centre for International Justice have released state- ments calling on the Australian gov- ernment to urgently assist in the crisis – including to help Australians to leave Afghanistan as well as Afghans who sup- ported the defence and humanitarian work in the country. One joint letter, penned by the Ref- ugee Council of Australia, has received

more than 300 signatories from organisa- tions, businesses and community groups calling on federal MPs and senators to take urgent action on the situation. “Members of the Afghan diaspora in Australia are desperately worried about their family, colleagues, and friends who remain in Afghanistan. Many of the people here in Australia also need certainty and safety, and the Australian Government has the power to o er pro- tection and additional support in many ways,” said Refugee Council of Australia CEO Paul Power. President Jacoba Brasch of the Law Council of Australia and Matt How- ard SC, President of the ABA, said the government should attend “to the grave

risk to those who have worked to defend and uphold the rule of law, and to sup- port and establish democratic and justice institutions over the past twenty years, including in particular women partici- pating in the legal profession”. “Among Afghans at terrible risk are judges and lawyers – many of whom have courageously worked to defend and uphold the rule of law, and to support and establish democratic and justice in- stitutions over the past twenty years. We are particularly concerned for the safety of all Afghan judges, but in particular, the women judges who previously heard trials against members of the Taliban, and lawyers who worked for the fallen Government,” they said.

Membership in the Prime Lawyers Group Do you own a small to medium law firm in New South Wales? Are you a practitioner looking to rebrand or start your own firm? The Prime Lawyers Group has opportunities available now to join the Group as an independent office, or as part of a joint venture office, sharing resources and know-how. We are currently experiencing an overflow of enquiries and are interested in speaking to you if you are currently operating, or looking to own or be part of, a regional or suburban firm. If that’s you get in touch by contacting plg@primelaw.com.au or visit us at www.primelawgroup.com.au.

ISSUE 81 I SEPTEMBER 2021 I LSJ 17

Briefs NEWS

FAMILY VIOLENCE Boost in funding for legal and domestic violence support

The NSW Government has doled out $4 million to assist organisations providing legal advice or support for domestic vio- lence victims, amid rising concerns that extended COVID-19 lockdowns are placing extra pressure on the sector. NSW Attorney-General Mark Speak- man said the new funding would help more than 70 organisations modernise and expand their operations in deliver- ing critical services. “This initiative will help these chari- ties and not-for-profits increase capacity, provide better digital service delivery, and enhance remote working options,” Mr Speakman said. “The NSW Government is commit- ted to helping those in need to end the

value to services and in turn benefit those they support.” A total of $2.06 million was granted to 44 organisations that provide family and domestic violence services, while 28 groups, who specialise in legal services, will receive $2.39 million in total. Jayne Clowes, CEO of Carrie’s Place Domestic Violence and Homelessness Services, said the funding could not have come at a more opportune time. “Our laptops and tech were all in ur- gent need of being upgraded and, now, because of the necessity for working re- motely, it is especially important. The grant will enable our workers to have far greater flexibility to deliver our services,” she said.

scourge of domestic violence, and by en- suring these services are equipped with the right resources and capabilities, we know these grants will add long term

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

Hayley Aldrich Promoted to Special Counsel Carroll & O’Dea Lawyers

Katherine Driscoll Promoted to Senior Associate Carroll & O’Dea Lawyers

Elizabeth Edgar Promoted to Senior Associate Carroll & O’Dea Lawyers

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

Matthew Forshaw Promoted to Senior Associate Carroll & O’Dea Lawyers

GregMcAllister Promoted to Senior Associate Carroll & O’Dea Lawyers

YuenWing Ho Promoted to Associate Carroll & O’Dea Lawyers

AllyshaMerret Promoted to Senior Associate Watts McCray

Jade Tyrrell Promoted to Senior Associate Johnson Winter & Slattery

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NEWS

APPOINTMENTS UNSWofficially appoints new lawDean

After a global search, UNSW has found its next Dean of Law & Justice: Professor Andrew Lynch, who has been acting in the role since July 2020 and brings to it years of experience with the university. Lynch was officially appointed to the role on 19 August. Prior to becoming Acting Dean last year, Lynch was Head of School and Deputy Dean for the law faculty from 2017 to 2020. He is a UNSW alumnus, earned his PhD at UNSW, has been a Professor at UNSW Law & Justice since 2011, and spent five years as Director of the University’s Gilbert + Tobin Centre of Public Law. In a statement announcing the news, UNSW said, “Andrew is recognised in- ternationally for his expertise in constitu- tional law and has an impressive research and publication record in the areas of federalism, judicial dissent and deci-

Photo: Richard Freeman, UNSW Sydney.

sion-making, judicial appointments, and legal responses to terrorism. “He is also recognised for his deep en- gagement with the legal profession and as a passionate advocate for creating a stu- dent experience with academic grounding that inspires graduates with a strong sense of social justice. “We look forward to working with him as he leads our outstanding Faculty of Law & Justice.”

Among those congratulating Lynch on the appointment was former Human Rights Commissioner Ed Santow, who tweeted “[Lynch] is an outstanding leader — deeply committed to the best ideals of justice, education & research, with genu- ine care for his colleagues and students.” The UNSW bookshop boasted Lynch is “on our favourite customers’ honour roll”, to which the new Dean tweeted in reply “that is indeed a mighty honour”.

MIND YOUR

BY PAUL MONAGHAN, SENIOR ETHICS LAWYER

When errors occur – ‘to err is human… to forgive is to be a lawyer’

Recent history has delivered to every solicitor new and challenging circum- stance, which have adversely impacted on them in their noble pursuit of the practice of law. Members of the profession are trained to deal with events from the everyday to the worst crisis, with the same forensic skill and the capacity to innovate that mark the profession during more famil- iar times. However, very few practitioners would have studied law that would de- scribe the circumstances of the past year and lay an established precedent to fol- low in dealing with such matters. Errors and mistakes may occur when

the legal profession is subjected to cir- cumstance that may be confusing and ambiguous. It is at times like these that public disorder and the questioning of law often arise as unpopular opinion or fervent dislike toward the operation of the law occurs. However, lawyers are well versed in “what can go wrong” and what must be done to cure a problem. Under these trying circumstance, we are reminded of our professional obligations when deal- ing with another solicitor or other per- son’s error. Practising law is filled with errors and it is important to recall that “…a solici- tor must not take unfair advantage of the

obvious error of another solicitor or other person ... if to do so would obtain for a client a benefit which has no supportable foundation in law or fact ...”. This principle is often read in conjunc- tion with another fundamental duty as to always be “... honest and courteous in all dealings in the course of legal practice ...”. When we are confronted with diffi- cult and hostile circumstance, we find our professional standards provide a means of resolving errors ... “to err is hu- man ... to forgive is to be a lawyer ...”. Again, this highlights the special role of lawyers and their professional stan- dards contributing to a just and ethical society.

ISSUE 81 I SEPTEMBER 2021 I LSJ 19

Briefs NEWS

THE COURTS Family Court merger becomes official

The newly created Federal Circuit Court and Family Court of Australia (FCFCA) officially commences operations on 1 September. The merger of the former Family Court with the Federal Circuit Court, formalised in the Federal Circuit and Family Court of Australia Act 2021 , was passed by the Federal Parliament in Feb- ruary to streamline and create efficiency in the court systems. Part of the combined court’s am- bitious remit is to resolve up to 90 per cent of cases within 12 months, to im- prove early risk identification and safety of children and vulnerable parties, and enhance national access to justice for vulnerable parties and regional commu- nities through the use of technology. “This merger marks one of the most significant structural changes to the family law system since the establish- ment of the Family Court in the mid- 1970s,” Law Society of NSW President Juliana Warner said during a webinar with the Court’s Chief Justice William Alstergren last month. “It’s not surprising, given the high stakes involved, and the extent of the reforms, that public debate around this merger has been intense. “It follows multiple inquiries by both Coalition and Labor governments, which have shown that in recent years Australia’s family courts have struggled with high caseloads and limited resourc- es. Vulnerable citizens, including chil- dren, are falling through the cracks.” The Court’s new leadership structure includes the Chief Justice and Depu- ty Chief Justice for Division 1, and in Division 2, one Deputy Chief Judge for Family Law, and one for General Federal Law and Fair Work. Chief Justice Alstergren said during the live online event: “The courts are extremely grateful for the support of

“It’s not surprising, given the high stakes involved, and the extent of the reforms, that public debate around this merger has been intense.”

the profession, for engaging in consul- tation opportunities, supporting initia- tives such as the COVID-19 list and call overs, and generally assisting the Court to help Australian families to resolve their disputes.” “It’s an exciting time in the history of family law and both the Family Court and the Federal Circuit Court … for at least 21 years we have been looking for a single point of entry [for all family law matters] and we finally got one,” he said. “The Courts have been working dil- igently to build a court system that is innovative, truly focuses on the safety of children and vulnerable litigants, and that changes the culture and conversa- tion around family law – learning from the many inquiries, reviews and calls for change that have occurred in the past. Particularly robust discussions have hap- pened in the last two or three years.” Chief Justice Alstergren said one of the objects of the new legislation, “is to pro- vide for just outcomes, in particular, [in] family law or child support proceedings.”

A pivotal plank of the court reforms is the Lighthouse Project, a specialised risk assessment tool that focuses on public health and tailored case manage- ment for families involved in the family law system. “Importantly, specialist judges with expertise in family law will continue to be appointed, with the … Act requiring that … all judges exercising family law jurisdiction must be suitable to deal with family law matters, including matters in- volving family violence,” the Court wrote in published guidance to the profession. In a statement issued on August 13, the Court wrote “The focus is clearly on effective and efficient delivery of justice and achieving common approaches to simplify the court system… from 1 Sep- tember we will see a new structure that is innovative, fair and efficient and focuses on risk, responsiveness and resolution.” The Law Society event on the merger can be viewed as a webcast on demand at lawsociety.com.au/events/events-de- mand

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