Member Organisation Magazine of the Year 2017 WINNER
ISSUE 39 NOVEMBER 2017
THE JURY’S STILL OUTONJUSTICE AS TRIALS GROW IN LENGTH AND COMPLEXITY, IS IT TIME TO OVERHAUL THE JURY SYSTEM?
PAYINGAHIGHPRICE WHY THE NEWWHISTLEBLOWER INQUIRY REPORT MAKES FOR HARROWING READING
REFLECTIONSONA LIFETIME INLAW THE WISDOM OF SIR ANTHONY MASON LAWANDTHE INTERNETOF THINGS A GLIMPSE INSIDE ITS COMPLEXITIES THEHIGHS ANDLOWSOF EMOTION WHY ACKNOWLEDGING THEM IS KEY NEWINSOLVENT TRADINGDEFENCE IS IT STRIKING A BETTER BALANCE?
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26 INFOCUS Find out how a young lawyer is using her skills to boost public health 28 GLOBALFOCUS Claire Chaffey reports on the LAWASIA conference in Tokyo and the launch of a new human rights magazine, Asian Jurist 32 COVERSTORY As many court cases get lengthier and the number of judge-only trials increases, Lynn Elsey investigates if juries are up to the job
A busy solicitor tells Kate Allman about his passion for bodysurfing 54 NUTRITION Nutritionist Joanna McMillan explains the value of eating good fats and why we should embrace it 58 TRAVEL Ute Junker offers the ultimate guide to Bangkok and test- drives Kamalaya, the world’s best health spa, on Koh Samui
Julie McCrossin meets ACCC Commissioner Cristina Cifuentes 42 WHISTLEBLOWERS Australia is reviewing its whistleblower laws. Denise Cullen reports on the debate 50 ADAY INTHELIFE A lawyer as a fire officer? Greg Symonds tells Jane Southward how his legal skills are helping keep people safe
ISSUE 39 I NOVEMBER 2017 I LSJ 3
68 ADVOCACY: The latest in law reform 70 TAXATION: Divorce & tax implications 71 PROPERTY: Certifiers and duty of care 72 CORPORATE: New safe harbour provisions 74 EMPLOYMENT: Corporate avoidance & the FWA 77 INTERNATIONAL: What’s at stake in UK exit talks 80 RISK: Professional negligence claims & causation 82 SPACE: Future challenges for space law 84 PRIVILEGE: ‘Without prejudice’ & third parties 86 BANKING: ASIC on cryptocurrency token sales 88 PRIVACY: Data breaches & client confidentiality 90 EMPLOYMENT: Religion in the workplace 92 ENVIRONMENTAL: Cultural heritage reforms 94 CASENOTES: HCA, FCA, Criminal, Family & Wills
6 FROMTHEEDITOR 8 PRESIDENT’S MESSAGE 10 MAILBAG 14 NEWS 18 MEMBERSON THEMOVE 23 EXPERTWITLESS 24 OUTANDABOUT All the fun from the musical extravaganza, Just Music 23 THE LSJ QUIZ 44 LAW AND JUSTICE AWARDS 46 CAREER101
47 LIBRARYADDITIONS 48 DOINGBUSINESS
Dressed to impress, plus three experts on how to ask for more responsibility at work
The power of swimming to boost health for mind and body
Feeling high? Feeling low? Find out why it’s all good for you
Book reviews and our movie giveaway 66 NON-BILLABLES Barrister Zali Steggall 106 AVIDFORSCANDAL
Craig Emery, General Counsel, Telstra Retail, Marketing and Media
4 LSJ I ISSUE 39 I NOVEMBER 2017
CPD REIMAGINED. DISCOVER WHAT’S ON OFFER. lawinform.com.au
A WORD FROM THE EDITOR
My rst experience of a jury was at a special sitting of the Supreme Court of NSW in Armidale, my home town. I was a fth-year law student doing work experience at a local law rm and had the rare honour – especially for a country kid – of assisting with the defence of an accused murderer. Our client was charged with killing his wife, shooting her in the head at point-blank range as their two young children sat at her feet. It was a brutal crime and a rare case in the usually sleepy corner of New England.
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen
As we led into court on day one of the trial, there was an electric sense of scandal and excitement, and the jurors sat bright-eyed and brushy-tailed, pens and notebooks at the ready, eager to digest the evidence and play their role as good, responsible citizens. e enthusiasm didn’t last. As dramatic opening addresses gave way to a tsumani of minutiae apparently required by the prosecution, eyes glazed over, feet shu ed, and heads fell forward for increasingly longer periods of time. At the stage of peak boredom, the jury momentarily was entertained by the mu ed snores of the judge. A swift “ahem” from the defence counsel got everyone back on track. As trials grow in length and complexity, I do often wonder how jurors can stay engaged for so long, through so many laborious excursions into ne detail. is is one of the many questions posed about juries in Lynn Elsey’s cover story on page 32, “Are juries up to the job?” It’s a controversial question with many di ering views, and it’s interesting to analyse the applicability of an ancient method for achieving justice to a modern legal system. So, what do you think?
Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2017 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
SIR ANTHONYMASON 2017 Justice Awards p30 Mason sat on the bench of the High Court from 1972 to 1995. He expresses concern for access to justice in an extract of his keynote address to the Law and Justice Foundation 50th Anniversary Awards on 19 October.
JULIE MCCROSSIN Profile p36 McCrossin studied law and works as a journalist and facilitator. She profiles Cristina Cifuentes, a Commissioner at the Australian Competition and Consumer Commission, about the Internet of Things.
JOANNAMCMILLAN Health p54 McMillan is a nutritionist, author and expert on the low GI diet. She explains why some fats are no longer the enemy and are necessary for the absorption of vitamins and some antioxidants.
JIMMAIN Taxation p70
Main is an Accredited Business Law Specialist and Director of JMA Legal (Sydney, Cootamundra, Gundagai, Junee and Tumut). In his latest ‘Tax Sting’, he explains why it pays to be on the ball when it comes to tax and marriage breakdown.
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Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
6 LSJ I ISSUE 39 I NOVEMBER 2017
MIND THE GAP ADVANCING INDIGENOUS JUSTICE 14 November 2017 | 5–7pm | The Law Society of NSW PANEL DISCUSSION:
Federal Circuit Court of Australia, Magistrate Sue Duncombe , of the Children’s Court of NSW, Youth Koori Court, Sarah Hopkins , Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW and Chair of Just Reinvest NSW and Melanie Hawyes ,
Executive Director Juvenile Justice NSW, Department of Justice, for a panel discussion on how we can reduce the over-representation of Indigenous people in the criminal justice system.
Indigenous people are 14 times more likely to be incarcerated than non-Indigenous people in NSW. Join Professor Larissa Behrendt , Professor of Law at UTS, Judge Matthew Myers AM , of the
ISSUE 39 I NOVEMBER 2017 I LSJ 7
ne of the aims of the Law Society this year – to raise awareness of the rule of law, human rights and civil liberties, and promote public discourse about what they are and why they matter – has come to fruition with a number of significant events that have unified
the profession in the past few months. The enthusiasm and interest that met our panels on Bending the Rule of Law and Human Rights in Unchartered Territory in August and September demonstrates how strongly these issues resonate within the legal community. The Law Society is committed to furthering these debates, including through our advocacy work and pressing with a united voice for a better balance between security and civil liberties, as well as incorporating into our programs practical tips on how to assist practitioners to bring human rights jurisprudence into their practice. The next tranche of our Thought Leadership
series continues this month with Mind the Gap – Advancing Indigenous Justice on 14 November, bringing together another high level expert panel. Indigenous incarceration rates repeatedly have been described as a national crisis. Clearly, current approaches are not working. We need a cooperative, long-term vision for investment in a strategy that recognises the imperative for greater availability of alternative sentencing measures, justice reinvestment, restorative and therapeutic justice, and Koori Courts – options that will have a real chance of reducing recidivism, where imprisonment so spectacularly fails. To advance Indigenous justice, the Law Society is set to launch an awareness campaign to push for change. We strongly support the introduction of robust justice targets in the COAG Closing the Gap Strategy to reduce the number of Indigenous people needlessly held in prisons. We also support setting justice targets in NSW, as has been done in Victoria, the Northern Territory and the ACT. The final event in ourThought Leadership series will culminate in a landmark symposiumon 27November that aims to develop a new, non-partisan Australian approach to asylum seeker policy that respects both national sovereignty and human dignity. Continued advocacy on this issue is critical, given the significant constraints on the ability of asylum seekers to obtain legal advice and recourse, while, in some instances, facing indefinite detention. In today’s environment, the unity and commitment of the legal profession to upholding the rule of law and safeguarding human rights and civil liberties remains imperative. Our recent Just Art and Just Music initiatives revealed for the first time the vibrancy and creative force of the NSW legal community. All the entries portrayed unique aspects of justice. In addition to creating a real sense of wellbeing in those who participated and came to experience the outcomes, the Law Society has been able to raise important funds for Bara Barang Corporation, the Law Society’s charity of choice for 2017. My particular congratulations following Just Music goes to the winner of the People’s Choice award, rapper and drummer Rhyan Clapham, aka “Dobby”, with his piece “OK”.
8 LSJ I ISSUE 39 I NOVEMBER 2017
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ISSUE 39 I NOVEMBER 2017 I LSJ 9
Mailbag LETTERS TO THE EDITOR
ISSUE38 OCTOBER 2017
Save us from the pollies I have a question about the donation of our collective privacy, personal information and photos to a National Licence database so that faceless law enforcement business in public to decide whether or not we look like criminals. My question is: why did every politician in the country agree to this state-sanctioned spying? And please don’t say “to keep us safe” when there is no evidence or guarantee of that – when in fact the only guarantee is that it will do irreparable and irreversible damage to our freedoms and democracy. How do we keep ourselves safe from the Nothing small about small talk Oh gawd – if career progress hinges on sharpening our small talk skills at networking occasions (“How to Go from Good to Great”, Rachel Setti, LSJ October 2017), some of us may be doomed to failure! David Grinston, Grinstons Lawyers, Crows Nest Spell it out My letter in the August LSJ neither stated nor implied that more ethnic diversity in the judiciary be encouraged simply for diversity’s sake alone – without any consideration of merit. That should go without saying but, agencies can use facial recognition to spy on us as we go about our politicians? Mike Wilcox
it seems, for some, it needs to be spelt out. The reality is that just as there are now more female lawyers than ever before, so, too, there are now more lawyers of different ethnic backgrounds than ever before. Just as more women are rightly represented in the judiciary, the simple point being made was that in future, hopefully, the judiciary will similarly reflect that diversity. Just as ability has no gender, equally, ability has no single ethnicity. Edward Loong, Lawyer, Milsons Point Cross-examination With respect, I think your answer [to quiz question 2, LSJ September 2017] is not full enough, and misleading. Constitution section 128 provides in essence that after certain parliamentary actions but before a proposed change can be presented to the Governor General for the Queen’s consent it must be approved by a majority of electors, in a majority of states, by a majority of all the electors voting. Territories are not counted as states but the votes of their residents, (if in favour) are counted in the majority of all the electors voting. Robert King Wham! Bam! Thank you, spam By the time anyone reads this letter, the Law Society Council election will be over. So many hopefuls, so many choices. Fortunately, my task in deciding how to
vote has been made easier by modern technology. A number of candidates saw fit to send me emails seeking my support. Most of this mail was redirected automatically to my spam bucket by my mail server, and only one solicitation actually made it through to my inbox. Regrettably, this one email came directly from the single candidate for whom I otherwise would have been most likely to vote. I say “otherwise” because under no circumstances will I vote for candidate who could possibly think it would ever be okay to spam a colleague. The matter falls within my wider policy of never, ever favouring anyone who sees fit to interrupt my day with a spam email or a cold call, regardless of how impressive the product, or service, or candidate might sound. In the case of the Law Society Council election it was necessary for me to review the contents of my spam bucket before I cast my vote. Fortunately, the offenders were easily identified. Just for the record, the few remaining candidates who received my vote included the horse racing guy. I hate horse racing, but he fessed up through the proper channel (the “Candidates” literature which accompanied my ballot paper), he seemed passionate about giving back to the profession, and, most importantly, he left my email alone. Ian Vasey, Lawsons Solicitors, Forster
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10 LSJ I ISSUE 39 I NOVEMBER 2017
LETTERS TO THE EDITOR
In 2011 I was diagnosed with an incurable form of leukaemia called chronic lymphocytic leukaemia (CLL) and given five years to live. By October 2015 I was declared terminally ill. However, thanks to a discovery made at the Walter and Eliza Hall Institute by Professor David Vaux, there is a new drug for this insidious disease. I was able to get onto an early trial of the drug and this saved my life. If it weren’t for the research done at the Walter and Eliza Hall Institute, supported by donations and bequests from committed donors, my children would not have a mother today. Without the Institute, I really believe my children would not have their mother today.
Keep religion out of it From Federation, Australian marriage law has always been secular. Yes, religious organisations have made their own rulings about marriage which their members have been required to abide by – most churches won’t allow an interfaith nuptial, synagogues won’t allow a person who does not religious law) to be married again, and mosques have similar requirements. And while these religious organisations bless marriage and have rules about how, when, how many times, and whom you can marry, the concept of marriage is not a religious institution. This vote that has been slung upon us has put the rights of a minority group in the centre of a “Democratic Colosseum” to be attacked, torn apart and potentially killed. It is not about religion. It is not about what you believe the deity you pray to has ordered about marriage. It is about equality, of fundamental have a Get (a divorce document in Jewish human rights. Period. You can trust God. You can continue to live how you believe you should live. However, to marginalise and ostracise homosexuals (the Bible I have read does not contain a directive to do so) is morally indefensible. There are churches that have banned the participation
of homosexuals from their sermons, from their premises. This infuriates me. A house of God depriving a group of people of the spiritual comforts it is to o er. How lucky are heterosexuals to be able to use passages from their religious texts as justification for applying certain standards of morality to “abominations” they themselves are not tempted to commit, and at the same time accepting, for themselves, a separate standard of morality for other sins they do regularly commit. expressing their disgust at my remark are deafening – “Ours is a democracy and I am entitled to my own view,” they keep chanting. “Stop bullying us and trying to dictate the way we live,” they continue to recite. I will say it again. It is not okay to vote no. It is not okay to try to make voting no okay. You either support equal rights or you don’t. I accept the topic is one that most people feel forms the practicalities of morality. I accept that most people are unable to separate religious convictions from societal facts. I accept that everybody is entitled to religious freedom. I do not accept that because of one’s ideals and beliefs, one’s dogmatic theories, the rights of a vulnerable group should be subject It is not okay to vote no. The cries of those
- Deborah Sims, pictured below with Professor David Vaux.
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ISSUE 39 I NOVEMBER 2017 I LSJ 11
Mailbag LETTERS TO THE EDITOR
A dark day I was disappointed to see our President’s press release issued on 5 October 2017. It is right that the Law Society, being dedicated to the rule of law, supports the proposed changes to our marriage laws. That is because the rule of law is based on the universal dignity of the individual and their right to equality. By denying human dignity and equality, these so-called Christians have shown what hypocrites they really are. Have they all forgotten Christ’s exhortation that you treat others as you’d want them to treat you? The Society’s position was articulated by its democratically-elected Council. Through their underhand tactics, these so-called Christians have shown their contempt for the Society’s democratic processes. This is a dark day for the Law Society. What fundamental rights does our Council propose to give away next? Justin Cahill, Solicitor A lack of equality? The president of the Law Society claims there is a lack of equality under the law for gay couples and hence the need for gay marriage (Sept LSJ , p21). One claim being made is that gay couples cannot immediately prove their relationship as married couples can. This is false. Gay couples can register
vote, about my right to own property, about my right to work after getting married. Once upon a time, somebody was vocal about my right to practise Christianity. Once upon a time, somebody was vocal about my right to live in Australia. One of my favourite quotes is “Stand up for truth, justice and equality, no matter who it is for or against”. The principles of justice, equality, and truth have been and always remain at the core of all my dealings. However, I believe the most important words of the above quote are “no matter who it is for or against”. If you stand up for truth only if the person you are standing up for is someone close to you, are you really standing up for truth? If you stand up for equality only for those similar to you, are you really standing up for equality? If you stand up for justice only when the victim of the injustice shares your views, are you really standing up for justice? I believe we must speak out and stand up for what is just. To kowtow on the basis of political favour when the rights of our community are compromised, to remain silent or to make decisions affecting the lives of our brothers and sisters based on religious convictions – these things will eventually
their union under the Relationships Register Act 2010 if they want immediate legal proof of their relationship as a “de facto” under the Interpretation Act 1987 (NSW), s 21C(1) &(2). Further, international jurisprudence on what is “equality” under United Nations covenant states that the hetero definition of marriage does not cause inequality. In Joslin et al. v New Zealand , the United Nations Human Rights Committee held that “marriage” includes only persons of the opposite sex under Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR). Importantly, the committee held that the right to equality under Articles 2 or 26 of the ICCPR, which is the applicable international covenant that Australia has ratified, was not violated by upholding a hetero definition of marriage. This is consistent with the UNHRC’s clarification, that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the covenant”. The Law Society should not be making false claims about a lack of equality under the law for political purposes. Polly Seidler, Solicitor, Darlinghurst
to the vagaries of despots. It was this very idea that formed the basis for the argument that women could not vote. It was this very idea that rendered segregation acceptable, that justified slavery, that perpetuated tolerance of apartheid, that permitted people to attempt to exterminate an entire ethnic group. There was a time when people said it was okay to vote no on a woman’s suffrage amendment. “Women are not suffering from any injustice which giving them the ballot would rectify” was one such argument, one that now seems so irrational, so preposterous, but was, at that time, acceptable. There was a time when people believed that segregation was healthy. That it was beneficial to the community. That its purpose was to protect people. There were many who fiercely defended segregation, and, when the highest court in the country was deciding whether a system of segregation based on the notion of racial inferiority was to be continued to be sanctioned, there were people who believed they had a democratic right to continue to refuse “black” clientele. I am constantly asked why I bother being so vocal on this topic. “It doesn’t affect you, Alexia, why do you waste your time?” I bother because once upon a time, somebody was vocal about my right to
crumble a community. Alexia Ereboni Yazdani, Principal Solicitor, Hillside Legal
12 LSJ I ISSUE 39 I NOVEMBER 2017
ON THE SOCIALS
Where was the survey? I refer to recent publication of policy positons of the Law Society regarding same-sex marriage and other social and political issues. I am assuming you have not surveyed the members of the Law Society to ascertain their position before making the above referred to statements. Perhaps you need to be reminded you act on the members’ behalf regarding their interest and views. I am a member of the Law Society and therefore you are speaking on my behalf and all other members. It seems you are acting as an independent organisation, advising lawyer of what they should be thinking and what social polices they should express. I have long been of the opinion that the Law Society sees itself as a quasi- government institution. It sees its role to regulate and educate lawyers. If you are such a body then stop pretending to represent
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the interest and views of lawyers unless you are prepared to poll lawyers for their views on these important social issues. Perhaps you may be
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ISSUE 39 I NOVEMBER 2017 I LSJ 13
Trust fund fraudattacks on the increase
BY JANE SOUTHWARD
A Sydney suburban firm is fighting to retrieve $854,000 lost through a cyber fraud attack in mid-October. Jim Sofiak, the Law Society’s Acting Chief Trust Accounts Investigator, said cyber fraud involving solicitors’ trusts accounts was increasing and was expected to become a key issue in 2018. Sofiak said the first cyberfraud cases affecting solicitors occurred six years ago. In 2017, the Law Society has investigated seven cases, including six cases of email fraud and one in which the scammer effectively took control of the trust account. “In the most recent instance, without knowing, the solicitor was actually corresponding with the client and the scammer at the same time and had no idea,” Sofiak said. “Some $854,000 was transferred from the solicitor’s trust account to a bank account in Western Australia. It wasn’t until nine days later that the client emailed asking about his money. Unfortunately, this was too late and the money was gone.” In another case, Sofiak said it was fortunate for the solicitor that the solicitor on the other side was looking diligently for $180,000 to come into his trust account. “The other solicitor had been promised it would be transferred by the bank immediately and the money would be there the next day,” he said. “When the $180,000 had not appeared, the other solicitor telephoned him and it was then that it was discovered that the original email had been tampered with and the account details altered. Because of the prompt detection, the bank was able to freeze the account to which the money had gone.” In two instances, money was taken from trust accounts by the use of “phishing”. In these instances, the scammer searches a solicitor’s website. In one case, the principal was in one office and the accounts person was in a branch office where the trust records were kept. The scammer pretended to be the principal and by email directed the payment of trust monies into a bogus account. Some $56,100 was stolen.
The other case involved the scammer gathering enough information to first get the telco to direct all calls to his or her own mobile telephone then to get the bank to forward the account details of both the trust account and office account to the solicitor’s nominated mobile telephone number which was automatically transferred to the scammer. Next the scammer used the account information to access the trust account and transfer $27,000 to the office account and then made various payments from the office account to his or her nominated accounts. “There also has been an instance of massive identity fraud where the law practice retained the identity documents of clients in their computer required for the Land Titles verification of identification,” Sofiak said. “These documents included passport photos, credit card details and Medicare details. We are aware that there has already been a fraudulent application for a loan based on one of these identities.” How the scams work Scammers hack into solicitors’ email accounts and obtain client information, and in some instances are able to redirect emails addressed to solicitors into spam emails. In the instances in which the emails are redirected into solicitors’ spam, the scammer is able to alter the account details to which funds are requested to be transferred and then throw their altered email into the solicitor’s inbox. When the scammer has a client’s details, they create a new email address that looks nearly identical, then direct a solicitor to transfer money into their nominated account. It may be that the scammer is trolling through clients’ computers and picks up that a conveyance or estate distribution is to take place. They then assume the identity of the client. For Law Society of NSW resources to help solicitors identify and protect themselves from cyber fraud, visit
“In the case involving $854,000, the solicitor was corresponding with the client and the scammer at the same time and had no idea.” JIM SOFIAK
14 LSJ I ISSUE 39 I NOVEMBER 2017
NEWTHISMONTH LAWAND JUSTICE FOUNDATION WINNERS
John Capsanis, pictured, won the Law Society of NSW President’s Medal at the Law and Justice Foundation of
NSW Awards on 19 October. Capsanis was recognised for
supporting the Pro Bono Scheme and assisting the Greek community with advice and translation. Prue Gregory won the 2017 Justice Medal. Gregory provides free legal assistance to child abuse victims and has served the disadvantaged for more than 20 years. You can read an extract of the Hon Sir Anthony Mason’s address at the awards on page 30. Find out more at lawfoundation.net.au SUPREMECOURT CONFERENCE Solicitors are invited to the Supreme Court Annual Commercial and Corporate Law Conference on 15 November. Speakers from 1.30-6pm will include the Hon Justice Fabian Gleeson, the Hon Justice Ashley Black, Rebecca Maslen-Stannage from Herbert Smith Freehills and Professor Pamela Hanrahan from UNSW. Book now at lawsociety.com.au/SCLC2017
Prof GeorgeWilliams Dean of Law, University of New SouthWales There is no getting away from the unsettling observation that, among democratic countries, Australia and Australia alone has taken no national measure to protect human rights.
A Charter of Rights for Australia by George Williams and Daniel Reynolds
ISSUE 39 I NOVEMBER 2017 I LSJ 15
NICHOLA DONOVAN PRESIDENT, LAWYERS FOR ANIMALS
six minutes with
Nichola Donovan, pictured with her dogs Arkie (left) and Banjo, is president of the national volunteer animal welfare organisation that is dedicated to improving the welfare of animals through education and the law. Donovan earned a BA from Monash University, LLB from La Trobe University and LLM from Monash. She started her legal career at Maurice Blackburn but found her true calling advocating for others, first as a solicitor and migration agent at the Refugee and Immigration Legal Centre (now called Refugee Legal) in Melbourne and now with Lawyers for Animals. LYNN ELSEY reports.
How did you get involved with Lawyers for Animals (LFA)? A volunteer at the Refugee and Immigration Legal Centre where I was working suggested I attend the organisation’s launch in 2005. Until then, I wasn’t really aware that animal law existed. I started working for LFA as a volunteer, then part-time as a legal projects officer in 2007. I became president, which is a voluntary role, in 2009. How does LFA differ fromother animal rights organisations? It’s the legal angle. We advocate for the animals, which includes communicating with politicians and making submissions related to laws and policies that affect animals. We also work with other animal welfare groups and help promote awareness of animal suffering. Initially, we just did policy work, but in 2013, in response to ongoing requests for legal advice, we partnered with Fitzroy Legal Service to start the Animal Law Clinic. Today we have about a 50/50 split between policy work and the clinic. Why has LFA has called for government enforcement of animal cruelty laws? We don’t think any animal cruelty laws should be enforced by charities. The RSPCA and Animal Welfare
League lack the resources, the requisite force and the state indemnity from civil liability to be able to properly protect animals. We believe a better solution is to leave law enforcement to the government and have a police unit take over animal cruelty investigations, overseen by the Department of Justice. There is a successful model for this in New York, where the American Society for the Prevention of Cruelty to Animals formed a partnership with the New York City Police Department. This allows the police to manage the investigations and the society to focus on caring for animals while continuing to offer veterinary and forensic expertise for prosecutions. Do you have any pets? Two dogs, Banjo and Arkie. Banjo was a foster dog I just couldn’t give up. How do you deal with the emotional aspect of animal cruelty? I find the stories where dogs are on death row difficult but I feel I can help some of these, so there is a silver lining. The bigger policy issues, such as agricultural animals, which are legally allowed to be treated in a horrible way, are harder to deal with. I have learned to cling to every small victory. I used to think that refugee work was hard, until I started in animal law.
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AWARDS LSJ TEAMWINS MEMBERMAGAZINE OFTHEYEAR The LSJ was named Member Magazine of the Year at the prestigious Mumbrella Publish Awards in Sydney on 19 October. Other finalists in the category were In the Black , for CPA Australia, Create , for Engineers Australia; HRM , for the Australian Human Resources Institute; and WA Works , for the Chamber of Commerce and Industry WA. LSJ Managing Editor Claire Cha ey was Highly Commended in the category of Editor of the Year (Business). Associate Editor Jane Southward was a finalist as Journalist of the Year (Business) and Multimedia Journalist Kate Allman was a finalist as Young Writer of the Year (Business). The LSJ was also a finalist for Cover of the Year.
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STEPHENROGIC Joined as a Senior Associate, Workers Compensation Bartier Perry
ADAMCUTRI Joined as a Senior Associate, Commercial Disputes Bartier Perry
CLINTCOLES Promoted to Senior Associate Everingham Solomons Solicitors
WENDYJACOBS Joined as Partner, Banking, Insolvency & Disputes DibbsBarker
MASI ZAKI Joined as Senior Associate, Banking, Insolvency & Disputes DibbsBarker
ADAMFARO Promoted to Senior Associate Streeton Lawyers
MIKAELAELDRIDGE Promoted to Associate Streeton Lawyers
ALEXCHERNISHEV Appointed as Head of Banking & Finance Practical Law Australia
ERICBUTLER Solicitor, Accredited Specialist Wills & Estates Now in sole practice
DANIEL FITZPATRICK Appointed to Special Counsel Piper Alderman
THOMASCOXALL Promoted to Associate Prominent Lawyers
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ANDREWSELIM Joined as General Counsel Home Consortium
CHADPENFOLD Joined as Associate, Property Bilbie Dan Solicitors and Attorneys
WARWICKCOTTEE Appointed as a Consultant HPL Law Group, Freshwater
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SAMANTHADALY Joined as Partner, Planning & Environment Johnson Winter & Slattery
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FLIPGOVERNMENTFORUM Canwepredict the future?
An impressive line-up of almost 40 leaders from state and federal government agencies met at the Law Society on 26 September to discuss next steps following the Future of Law and Innovation in the Profession (FLIP) report, released in March.
Attendees at the Future of Law and Innovation in the Profession government segment event.
“I have three predictions for the future of legal practice: one, there will be an increasing proportion of work automated. Two: there will be a proportion of roles replaced by artificial intelligence. And three: the way our children will work in future will be entirely different.” TIM ROACH, ASSISTANT COMMISSIONER OF THE AUSTRALIAN TAXATION OFFICE
Assistant Commissioner of the Australian Taxation Office Tim Roach tuned in to the roundtable discussion via internet video link from Perth airport, while en route to a meeting in Melbourne. It was an apt way to deliver his thoughts on how technology was helping mobilise and globalise the legal industry. “The future is cone-shaped,” said Roach. “It’s as if we’re looking at the universe in a cone – we can predict broadly what events will fall inside that cone. “I have three predictions for the future of legal practice: one, there will be an increasing proportion of work automated. Two: there will be a proportion of roles replaced by artificial intelligence. And three: the way our children will work in future will be entirely different.” The Law Society of NSW’s Chief Executive Officer, Michael Tidball, and President Pauline Wright attended the event and helped to navigate discussion around topics such as technology and the operation of legal practice, and the use of artificial intelligence in litigation and document review. Tidball said the Law Society was committed to helping government lawyers share information, and plan and implement change. “We see this as just the beginning of many opportunities for government solicitors to share knowledge and ideas from FLIP,” said Ann-Marie Boumerhe, the Government Lawyers Segment Manager at the Law Society of NSW.
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YOUNGLAWYERS NATIONALGOLDENGAVEL NSW Young Lawyers hosted the National Golden Gavel on 20 October with judges the Hon. Justice Margaret Beazley AO, President of the NSW Court of Appeal, Supreme Court judges the Hon. Justice Lucy McCallum and the Hon. Justice Julie Ward, Supreme Court of NSW, and Morry Bailes, President-elect of the Law Council of Australia.
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The finalists in the National Golden Gavel competition with o cials, including the NSW Young Lawyers Patron Justice Margaret Beazley, in blue.
Micah Kickett from the Northern Territory won the event, speaking on the topic, “How to speak conversational legalese in one easy lesson”. NSW contestant Floyd Alexander-Hunt received the NSWYL Patrons Choice Award, speaking on the topic “Can you imagine a world without lawyers?” Comedian and lawyer James Smith was Master of Ceremonies at the event. James Skelton, a NSW Young Lawyers Executive Councillor, won the 2017 Australian Young Lawyer Award (Individual) and the NSW Young Lawyers Human Rights Committee won the 2017 Australian Young Lawyer Award (Organisation) for its Refugee Assistance Project. Thanks goes to this year’s Platinum event sponsor, Unisearch Expert Opinion Services, and Gold event sponsor Lawcover.
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INDIGENOUS ISSUES JOINTVENTURETO TACKLEINDIGENOUS CHILDREMOVAL BY KATE ALLMAN The Aboriginal Legal Service (ALS) has teamed up with the Public Interest Advocacy Centre (PIAC) to launch a new project to tackle over- representation of Indigenous children in NSW child protection. The Indigenous Child Protection Law Project (ICPP) will place a full-time lawyer to work between the ALS Care and Protection team and PIAC to help coordinate a new strategy to decrease the number of Indigenous children in child protection in NSW. The strategy aims to focus on protecting the Aboriginal Child Placement Principle, planning for out-of-home care that respects the rights of Indigenous children to family and culture, carrying out risk and safety assessments that are culturally appropriate, and allowing Indigenous participation in decisions across the child protection and family systems. “We know that Aboriginal and Torres Strait Islander children flourish when they are safe and connected to their culture, families and communities,” said Brooke Greenwood, the lawyer chosen to work in the new role for the ICPP. “This project is a rare opportunity to address the systemic legal barriers that lead to disproportionately worse outcomes for Aboriginal and Torres Strait Islander children in the NSW child protection system.” According to PIAC, Indigenous children in NSW were 10.5 times more likely than non-Indigenous children to be taken away from their birth parents and placed in out- of-home care in 2015. PIAC has warned that the population of Indigenous children in care nationally will almost triple by 2035 if the current trends continue. “More than 20 years after the Bringing Them Home report, these alarming trends in Indigenous child removal represent an urgent call to action,” said PIAC CEO Jonathon Hunyor. “Legislative and policy reform as well as increased accountability of decision makers are essential to improving outcomes for Aboriginal and Torres Strait Islander children and families.”
For the full round-up of Law Society advocacy, see page 68.
HealthProviders’ Access to MedicareCardNumbers The Law Society made a submission to the Department of Human Services’ Review of Health Providers’ Access to Medicare Card Numbers. The Society noted that the discussion paper underlying the review made no comment about the My Health Record system. The Society queried whether the potential implications of interaction with the My Health Record system had been properly assessed, and whether the need for health professionals to confirm Medicare eligibility would remain as significant as it had to date in regard to the proposed changes to the My Health Record system from 2018. Child sexual abuse laws The Criminal Law Committee contributed to a detailed submission to the Department of Justice on the issues raised in the discussion paper Strengthening child sexual abuse laws in NSW . The discussion paper covered the legislative recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse in its criminal justice report, as well as issues that have arisen out of the Child Sexual Offences Review conducted by the Department of Justice. The Law Society wrote to the Stolen Generations Advisory Committee offering assistance to the NSW Government’s efforts to implement the recommendations of the inquiry into reparations for Stolen Generations survivors. The letter also provided the Society’s views on the relevant recommendations of the inquiry report which will be considered in December. Reparations for Stolen Generations inNSW
Larissa Behrendt, Professor of Law and Director of Research at the Jumbunna Indigenous House of Learning at UTS (pictured above), will facilitate a discussion on the issues of Indigenous incarceration rates at the Law Society Thought Leadership event on 14 November. Indigenous incareration rates repeatedly have been described as a national crisis. In NSW, Indigenous people are 14 times more likely to be incarcerated than non-Indigenous people. The rate is even higher for Indigenous women and youths. Society President Pauline Wright said it was clear that current approaches to reducing Indigenous incarceration were not working. How can NSW mind the Indigenous justice gap and reduce the over-representation of Indigenous people in the criminal justice system? The panelists will include Judge Matthew Myers AM of the Federal Circuit Court of Australia, Magistrate Sue Duncombe of the Children’s Court of NSW, Youth Koori Court, Sarah Hopkins, Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW and Chair of Just Reinvest NSW, and Melanie Hawyes, Executive Director Juvenile Justice NSW, Department of Justice. Visit lawsociety.com.au/ thoughtleadership to book.
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