NICHOLAS COWDERY ON THE LEGEND BORNE OF TYRANNY 800YEARSOF MAGNACARTA
COMEDYCENTRAL HILARITY AND DEBAUCHERY AT THE 2015 GOLDEN GAVEL
CONVICTS ANDCOUNSEL A ROGUISH HISTORY OF THE LAW SOCIETY GABRIELLEUPTON ON THE IMPORTANCE OF REACHING OUT ANOBLE PROFESSION FINDING POSITIVITY IN THE BALI DEATHS NEW-AGEDOMESTICVIOLENCE FACING THE CHALLENGE OF CYBER ABUSE
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1 LSJ I JUNE 2014
L egal aid services are critical to ensuring fairness and e ciency in the courts and access to justice for the vulnerable and most nancially disadvantaged. e legal assistance sector needs adequate and ongoing nancial support at both state and federal levels. It is concerning that the 2015 Federal Budget revealed Commonwealth funding to legal aid and CLCs will drop dramatically from 2017-18. It is vital that both Federal and State governments take a consistent and coordinated approach to funding in this area. e Society will continue to press government for such a commitment. I note that the latest NSW Bureau of Crime Statistics and Research gures show a 23.3 per cent rise in adults and 72 per cent rise for juveniles on remand between September 2014 and March 2015. How much of this is due to the changes to bail legislation that came into force on 28 January is still to be determined, however, it is particularly concerning that the increase has been disproportionately higher among the Indigenous population – up 28.9 per cent for adults and 34.2 per cent for children and young people. At the end of May, the Society released the 2014 National Pro le of Solicitors in Australia on behalf of the Conference of Law Societies. e report, which is the second national study of its kind, provides important demographic information on solicitors in all states and territories. With two sets of data we are now able to observe changes in the profession between 2011-2014, including a 12 per cent rise in the number of practising solicitors in Australia, a 22 per cent increase in corporate and 19 per cent increase in government solicitors. For the rst time, the report also provides data on solicitors who identify as Aboriginal and Torres Strait Islander. e areas of similarity and diversity across Australia revealed by the survey are fascinating, and I look forward to future years when we can use this as a benchmark for further insights into the profession. e 29 Regional Law Societies play a vital role in representing local interests, facilitating educational support and strengthening the profession. To “hear it from the horse’s mouth” our Council held its last meeting in the fair town of Dubbo, hosted by the Orana Regional Law Society and its President and Councillor, Andrew Boog. is was a great opportunity to hear from local practitioners and the community to discuss issues of local signi cance. I would like thank the local profession on behalf of the Law Society for the hospitality. Finally, the Legal Profession Uniform Law is expected to commence on 1 July in NSW and Victoria. e scheme will enable lawyers to practise under the same regulatory framework and creates a common legal services market across these two states.
JUNE 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
It’s hard to believe that this time 12 months ago we had just relaunched the Law Society Journal and propelled it into a new era. en Attorney-General Brad Hazzard graced the cover and we waited with bated breath for reaction from the profession. It was, by and large, overwhelmingly positive, and we hope we have continued to evolve and grow the publication in line with your expectations. e LSJ ’s rst birthday edition certainly features a line-up of contributors and personalities worth celebrating. Whether it’s legal giant Nicholas Cowdery delving into the mysteries of Magna Carta, veteran journalist Michael Pelly unearthing forgotten snippets of Law Society history, esteemed medico Dr Alex Wodak bringing rare insight into another nation’s approach to drug control, or new Attorney-General Gabrielle Upton espousing the bene ts of social media, the LSJ team never ceases to be amazed by the wisdom, insight and knowledge we publish in these pages. It is an honour for us to reach out to the profession and create the magazine each month. From all of us at the LSJ , thank you for all your support over the past year. May it continue!
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
Ray Steinwall is General Counsel of Novartis Australia and a member of the Australian Competition Tribunal. He writes about the impact on lawyers of the Chan and Sukumaran cases. A noble profession p22
Caren Whip is the Acting Director of Legal Services for the O ce of the Australian Information Commissioner. She writes about a ruling on when metadata is personal information. Legal updates p68
Nicholas Cowdery AM QC was the NSW Director of Public Prosecutions from 1994 to 2011 and is Chair of the Magna Carta Committee. He reflects on the power of Magna Carta 800 years on. Cover story p26
Michael Pelly is a journalist and author. In the first in a series for the LSJ , he explores a fascinating history that has shaped the state’s legal profession . Convicts, press wars and Australia’s first lawyers p34
Cover image: Andy Raubinger Coloured detail of the Magna Carta
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 JULY 2015
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34 CONVICTSANDCOUNSEL Michael Pelly begins his series on the history of The Law Society of NSW 38 GOLDENMOMENTS Meet this year’s winners in the NSW Young Lawyers Golden Gavel competition 52 TRAVELHEALTH Anna-Louise Bouvier o ers key tips for staying healthy when your job requires you to travel 54 PSYCHE Nicola Gates on the dangers of multi-tasking
56 WHENQUALITYMATTERS Why control can be more important than intensity for fitness 58 CITYGUIDE Jane Southward’s guide to 24 hours in Wellington 62 SEASIDEOASIS Ute Junker gets cosy in the luxurious surrounds of Pretty Beach House at Kilcare
Ray Steinwall reflects on the deaths of Andrew Chan and Myuran Sukumaran and what the case means for lawyers 26 COVERSTORY Nicholas Cowdery delves into the tyranny and bloodshed behind the birth of Magna Carta 800 years ago 32 FIRMLYONTHE UP Claire Cha ey sits down for a chat with State Attorney- General Gabrielle Upton
6 LSJ I JUNE 2015
46 ADAY INTHELIFE Jane Southward
66 LAWSOCIETY ADVOCACY 68 PRIVACY: ACCESSING YOUR METADATA 70 CRIMINAL: DOMESTIC VIOLENCE REFORMS 73 RISK: INFORMAL WILLS UPDATE 74 IMMIGRATION: FUTURE OF DUAL REGULATION 76 REGULATORY: PRAC CERTIFICATE CHANGES 78 CYBERCRIME: TECHNOLOGY AND ABUSE 80 CLASS ACTIONS: BANK FEES IN THE SPOTLIGHT 82 CONSUMER LAW: PAYDAY LENDING 84 EMPLOYMENT: ENTERPRISE BARGAINING 86 BUSINESS: FRANCHISE AGREEMENTS 88 TAX: COMPANY GUARANTEES 90 ETHICS: BEYOND POLICIES AND PROCEDURES 92 TAX: DEALING WITH THE ATO 94 CASENOTES
meets Minter Ellison’s Andrew Cunningham 48 PRACMANAGEMENT How law firms can boost profits by becoming leaner 50 EXTRACURRICULAR A musical tribute 64 LIFESTYLE The latest in books and events 75 LIBRARYADDITIONS
News and events from the legal world
10 PROFESSIONAL NOTICES 16 FROMTHEARCHIVES 17 CAREERMOVES Who moved where this month 18 OUTANDABOUT 20 GLOBALFOCUS Portugal’s innovative approach to drug laws 24 PEARLSOFWISDOM Justice Gleeson
New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle
43 CAREER101 44 FIONACRAIG
JUNE 2015 I LSJ 7
LETTERS TO THE EDITOR
WRITETOUS: We would love to hear your views on the news! The author of our favourite letter, email or tweet each month will WIN LUNCH FOR FOUR at the Law Society dining room . E: firstname.lastname@example.org Please note: we may not be able to publish all letters received.
A very technological a air How interesting and what a co-incidence that, in LSJ May 2015, John Eades in his President’s Message and John McDermott (Mailbag) – my classmates at Sydney Law School – should both speak about the implications of being “computer literate”, albeit in di erent contexts. Of course, in our day, computers were not in use. Indeed, “The Year in review 1980”, also in LSJ May 2015, notes that the Society itself only then resolved to purchase a computer. Progress they may well represent, but let’s all not forget that “Computers make very fast, very accurate mistakes”. Edward Loong, lawyer, Milsons Point
Angst not reserved for graduates
While I wholeheartedly welcome research to be conducted by the Working Party into graduate employment [ LSJ , May 2015], it needs to be acknowledged that entering and staying in the profession can be just as challenging at any age. Therefore, people – including 40-something me – have looked to related paralegal or administrative work, as well as further studies. The question often raised here is the Society’s preparedness (or not) to count this employment or studies towards the retention of our practising certificate and/or advancement in the
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It is difficult to argue with that description, particularly when during the election Mr Abbott heralded there would be no new taxes! In the interest of delivering “a fair go” to all litigants in the Family Law jurisdiction, and should the Government proceed with “this shameful mean spirited tax on family breakdowns”, at least compensate the litigants by providing additional funding from the filing fees collected so as to fund the appointment of more judicial officers and support staff to deliver justice for all in a reasonably timely manner. Tom A Doumanis OAM, Accredited Specialist (Fam), M.AppLaw (Fam Law)
in increased costs to litigants waiting for procedural and interlocutory matters and final hearings to be dealt with and in many cases considerable delay in the handing down of judgments. Given the volume of litigants through the Family Law Courts and the shortage of judicial officers to do justice to all of the litigants, it is not surprising for the inordinate delays. But of course it is not just the financial costs to litigants, it is also the stress, anxiety and uncertainty of putting their lives on hold waiting for their matters to be dealt with. The additional increase in fees has been described as a “mean spirited tax on family breakdowns”.
profession. Add in a job market that appears to rely more and more on temporary contracts, both remunerated and unremunerated, and you begin to see the true scope an employment working party could (and should) have. And if you add further possible issues affecting practitioners – like disability, illness, family or carer responsibilities – then it’s clear that graduate employment is one aspect of a much more complex scenario. Adam Johnston, Davidson Not all fair in family law It is with dismay I read that the Attorney-General proposes to increase filing fees for Family Law matters, projecting to
collect some $87 million of which only $22.5 million will be applied towards “streamlining the Federal Court, the Federal Circuit Court and the Family Court of Australia”. As the Family Court and Federal Circuit Court are the two courts which deal with Family Law matters (“the Family Law Courts”), it would appear if the $22.5 million is apportioned pro rata, the two Family Law Courts will each receive approximately $7.5 million. At present, the Family Law Courts are overburdened with the volume of cases coming before the Courts which, due to their number and shortage of judicial officers and supporting staff, results
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JUNE 2015 I LSJ 9
BUDGETBOTHBOONANDBURDEN The Law Council of Australia has commended budget measures that assist small businesses, including law firms. However, the peak professional body warned that while continued legal assistance funding was welcome, potential increases in court fees and an absence of additional legal aid funding would have an immediate impact on access to justice. Law Council President Duncan McConnel, pictured, said many law practices were small businesses and concessions for changing business structure were critical for continued service delivery, which was particularly important in suburban and regional areas. “These measures will be welcomed by small firms, and for small firms looking to consolidate, merge, or undergo succession planning. It may also be very timely for firms in NSW and Victoria transitioning into the Legal Profession Uniform Law,” McConnel said.
PROFESSIONAL NOTICES On 16 April 2015, the practising certificate of Alan Charles Powrie was cancelled pursuant to section 588(1) of the Legal Profession Act 2004 . At midnight on 17 April 2015, the practising certificate of Bruce Duleep Herat was automatically suspended in accordance with provisions of Section 70 of the Legal Profession Act 2004 . On 20 April 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Herat Solicitors, formerly conducted by Bruce Duleep Herat. On 20 April 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Tien Ngoc Do & Co, formerly conducted by Ngoc Tien Do. The Council of the Law Society of New South Wales, at its meeting on 20 April 2015, resolved to immediately suspend the practising certificate of Ngoc Tien Do pursuant to Section 548 of the Legal Profession Act 2004 . NEWTOTHE LSJ APP: DE-MYSTIFYING THE CLOUD While the cloud offers unlimited space and accessibility, many lawyers are concerned about data security. In the first episode of the LSJ ’s new tech podcast, Byte-Sized, barrister and tech aficionado Pouyan Afshar explores the cloud and explains various services you can use to run your practice more effectively. The high-level introduction is the first in a new series free to Society members. To listen, download the app at lawsociety.com.au/lsjapp
Many law practices are small businesses and concessions for changing business structure are critical for continued service delivery . . . particularly important in
suburban and regional areas. DUNCAN MCCONNEL, LAW COUNCIL PRESIDENT
The immediate deductibility of up to $20,000 in business expenses for small business is another important benefit, according to the Law Council. “This will enable small law firms and barristers to invest in technology innovation to become more efficient. Ultimately, this is good news for consumers as they will be able to access faster, more affordable legal services,” McConnel said. Another positive access to justice measure is the immediate tax deductibility of legal advice for start-up businesses. “New businesses will now be more likely to get legal advice early when it is really needed, reducing civil disputes and improving rates of small business failure. This is good for employees, creditors and customers,” McConnel commented. While the Law Council President welcomed continued funding levels for legal assistance, he expressed disappointment no increase was announced to meet the unmet legal need in the community. He also emphasised the critical need to find solutions to the growing cost of the Federal and Family Court systems. “These court systems have already suffered deep cuts and we must consider the nature and extent of further ‘savings’ which may impact properly funding a critical resource,” McConnel said. “Appropriately-funded court systems will result in more efficient and timely resolution of cases. For family law matters, this has crucial downstream consequences in mental health and family violence.” The Law Council President expressed caution over funding of the proposed infrastructure spending in courts, flowing from a recommendation from the Royal Commission into Aboriginal Deaths in Custody. “It’s worth inquiring why the Royal Commission recommendation is only now being implemented 20 years after it was made,” he said. “In any event, when infrastructure spending is being funded by a potential increase in fees, you immediately have an access to justice issue. We don’t make Australians pay a fee to access public hospitals or schools – why should we have to pay for the courts?”
10 LSJ I JUNE 2015
Legal Aid NSW last month announced a new, ambitious Aboriginal employment target of 6 per cent – three times the general public sector target of 2 per cent. The announcement, during Reconciliation Week, comes as the organisation’s program to nurture talented young Aboriginal lawyers and students is about to recruit its 50th participant. The Bob Bellear Legal Career Pathways program o ers high school scholarships, cadetships and work placements for law students, as well as professional legal training and a career development program for graduate lawyers. Forty-nine people have been accepted into the program since it was introduced in 2007. The program is named after Judge Bob Bellear, the first Indigenous person to be appointed to a court in Australia. “We are currently interviewing applicants for two new cadetships, which will bring us to over 50 participants in the program,” said Legal Aid NSW Chief Executive O ce Bill Grant. “We are proud of this program which has helped us to service Aboriginal clients better and increase sta awareness of cultural
issues. Currently 5.5 per cent of our sta , including 19 of our lawyers, are of Aboriginal background and we aim to increase this even further. “More than 10 per cent of our clients are Indigenous, and for many of them being able to speak to an Aboriginal sta member makes a huge di erence.” Two new participants started their two-year career development in March. One, UNSW graduate Peta MacGillivray, 26, works in a unit that provides civil law advice to children, applying her experience on an ARC-funded research project in Indigenous communities. “I am really proud and happy to see Legal Aid do so much work and commit so much e ort to bringing Aboriginal people into [the organisation],” Ms MacGillivray said “Having Aboriginal people working in partnership with their colleagues can build capacity in the whole organisation to work better with Aboriginal clients.” For more information about the program, go to legalaid.nsw. gov.au/about-us/working-at-legal-aid/judge-bob-bellear- legal-career-pathways-program 248,206 HOURS
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NATIONALPROFESSIONPROFILERELEASED There has been a 12 per cent jump in the number of practising solicitors across the nation, according to the new 2014 National Profile of Solicitors in Australia report. The report, commissioned by the Law Society of NSW on behalf of the National Conference of Law Societies and completed by Urbis, is the second national study of its kind and provides important demographic data about solicitors in all states and territories. A similar report profiled the profession in 2011. Among the findings was the revelation that more solicitors were working later in life and Western Australia had experienced a massive 40 per cent growth in solicitors in the past three years.
View the 2014 National Profile of Solicitors at:
NUMBEROFSOLICITORS • As of October 2014 there were 66,210 practising solicitors in Australia – a 12 per cent increase since 2011. • NSW has the largest proportion of registered solicitors (41.6 per cent), followed by Victoria (24.5 per cent) and Queensland (15.7 per cent). • Western Australia experienced the greatest proportional increase in solicitors, a 40 per cent rise since 2011.
GENDER • The gender profile is close to even with 51.5 per cent (34,100) of practising solicitors male and 48.5 per cent (32,110) female. Three-fifths (60.2 per cent) of all solicitors admitted in the past year were female (+19.3 per cent). • The Australian Capital Territory and Northern Territory are the only states or territories where female practitioners outnumber male practitioners. • Three-fifths (60.2 per cent) of solicitors admitted in the past year in Australia were female (a 19.3 per cent increase). Western Australia had the largest increase in the number of female lawyers admitted in the past year (50.5 per cent). In NSW, female solicitor admissions increased by 17 per cent in the past year.
AGE • Solicitors are continuing to work later in life: while the average age of solicitors (42 years) has remained the same, there has been a 38 per cent increase in the number of solicitors aged more than 65 years.
TYPEOFPRACTICE • There has been a 300 per cent increase in the number of large law firms (40+ partners), a 22 per cent increase in the number of corporate solicitors and a 19 per cent increase in the number of government solicitors.
ATSI • For the first time, the report provides data on solicitors of Aboriginal and Torres Strait Islander (ATSI) status – fewer than 1 per cent (0.8 per cent) of the national profession identifies as being of ATSI status. Of these, 52.1 per cent are female compared with 47.9 per cent male. The Northern Territory has the highest proportion of solicitors of ATSI status at 1.9 per cent. Queensland has the lowest at 0.6 per cent.
12 LSJ I JUNE 2015
LOCATION • Queensland has a considerably higher proportion of solicitors working in country or rural areas (29.9 per cent) compared with the national average of 12.5 per cent. NSW is just below the national average at 12.4 per cent. • Tasmania has the highest number of city-based solicitors (87.3 per cent) compared with the national average of 53.6 per cent. Almost half (49.9 per cent) of NSW solicitors are based in the city.
STATEANDTERRITORY SNAPSHOT The following provides a snapshot of each state/ territory, including total number of solicitors and private firms and a breakdown by gender and location.
New awards categories including Start- Up, Entrepreneur, and For Purpose and Social Enterprise have been added to the 2015 Telstra Business Women’s Awards, recognising that brilliant business women come from across all sectors. In their 21st year, the Telstra Business Women’s Awards have rewarded and raised the profile of thousands of women across all areas of business who have pushed boundaries and achieved excellence. Kate McKenzie, Telstra Chief Operations Officer and Telstra Business Women’s Awards Ambassador, said the introduction of new categories in Australia’s longest- running business women’s awards was important to reflect changes in Australian business. “We believe in a broad definition of success, so we’ve adjusted our Awards categories this year to make sure we continue to recognise vibrant business women from all industries,” McKenzie said. “In 2015 we’ll introduce both Start-Up and Entrepreneur categories that are open to the many inspiring women who’ve backed themselves and taken the risks to turn their passion into businesses. We’ve also lowered the age of the Young Woman’s category to 29 years and under to highlight women who are breaking new ground early in their careers. “Another key change this year is the addition of a new category – For Purpose and Social Enterprise – which recognises that more and more Australian women are leading businesses, including not-for-profits and social ventures, designed to deliver positive social and environmental change here in Australia and overseas.” The Telstra Awards are open to women in all states and territories, whatever their career or sector, providing them with opportunities to meet, mentor and support other aspiring business women. “I urge you to nominate a brilliant business woman you admire and then encourage her to enter the Awards. Perhaps it is your work colleague, friend, family member or possibly even yourself,” McKenzie added. Anne Cross, 2014 Telstra Australian Business Woman of the Year NEWAWARDS IN CELEBRATION OFWOMENIN BUSINESS
The much anticipated Magna Carta Symposium was held on 7 May at Sydney’s State Library. About 100 attendees heard a range of distinguished speakers discuss the history of Magna Carta and its relevance today. Dr Alex Byrne, from the State Library of NSW, welcomed guests to the symposium and the President of the NSW History Council, Emeritus Professor David Carment, was the master of ceremonies and introduced the speakers. Professor Nicholas Cowdery AM QC (the author of this month’s cover story on page 26) spoke about the relevance of Magna Carta in shaping our understandings of the rule of law, separation of powers, democracy, the presumption of innocence and the concept of no taxation without representation. Professor John Hirst’s paper delved into the legacy of British Rights and Liberties in Australia from the very beginning of European settlement to the goldfields and the Communist Party Case. He argued that historians often had overlooked the strength of commitment to British rights in Australia. Dr Rosemary Laing told the story behind the copy of the 1297 Magna Carta, which was purchased by the Menzies Government in 1952, and is housed in Parliament House in Canberra. Professor David Clark spoke about the mythology of Magna Carta in the legal sphere and how it had been misappropriated and used in legal argument in Australia from 1805 to 2015. Dr Andrew Tink provided an interesting account of the early days of the First Fleet in Sydney centering on the story of Cable v Sinclair , the first civil case in NSW in which a convict successfully sued a convict transport captain for lost luggage. Dr Tink made the point that some of the principles of the rule of law that we value today developed quicker in the colonies. He noted it would have been unlikely for a convict to have been able to bring a civil action of this kind back in England, such was the early colony’s commitment to the rule of law. The symposium concluded with a panel discussion and questions. There was some discussion about the role of civics and citizenship education in ensuring young Australians understood the importance of and the principles of Magna Carta. Opinion was divided whether we should be cynical or optimistic about the younger generations’ knowledge and understanding of government, democracy and the law. All the speakers agreed that there was something special and emotive about the story of Magna Carta that still captured people’s imagination 800 years after it was developed. The Magna Carta also forms the basis for the 5th National Access to Justice and Pro Bono Conference in Sydney on 18 & 19 July. Visit www.a2j15.com.au for more information.
14 LSJ I JUNE 2015
Jennifer Wyborn, the 2014 Telstra Young Business Woman of the Year.
C • For Purpose and Social Enterprise (delivers positive social/environment change as its core mission; includes not for profit and social ventures); • Government and Academia (government departments; educational institutions; statutory bodies); • Corporate and Private (employed by the organisation); and • Young Business Women (under 29 as at 30 June 2015). Nominations can be made at M Y CM MY CY CMY • Start-Up (owns minimum 25 per cent; business under three years old); • Entrepreneur (owns minimum 25 per cent; business more than three years old);
and CEO of Uniting Care Queensland, said: “The Awards gave me another platform to talk to many di erent audiences about issues I am passionate about that impact on society – domestic violence, child safety and issues related to Indigenous people living in rural and remote areas. “The process of nomination and selection required me to reflect deeply on what I had learnt and also on the people who had really supported me along the way. The whole experience was incredibly positive,” she said. Previous Telstra Awards winners also include Janine Allis, Carolyn Creswell, Gina Rinehart, Elizabeth Broderick, Therese Rein, Maggie Beer, Gai Waterhouse, Launa Inman and Naomi Simson. The 2015 Telstra Business Women’s Awards six Awards categories include:
womensawards.com or by calling 1800 817 536. Entries are open from 11 May to 29 June.
NOFAULTSCHEMEFORWA The Law Council of Australia has welcomed the Western Australian Government’s announcement to establish a no-fault catastrophic injury scheme for motor vehicle accidents. The new model maintains common law rights, while introducing a safety net for those who cannot prove a driver was at fault. “This decision is a significant step towards a National Injury Insurance Scheme that will create a safety net for catastrophically injured road users,” said Law Council president-elect Stuart Clark. “The new WA model provides a good example of how a national scheme should work, and allows access to common law compensation, which is invariably the case with the best performing no-fault schemes around the world.” Clark said such ‘hybrid’ schemes, generally funded through a levy on motorists, provide low- cost insurance against individual mistakes, while ensuring the scheme remains a ordable over the long term. “The new scheme will ensure that those who have been injured receive immediate care and support, regardless of whether they were at fault, while ensuring fair compensation for those who were injured due to another driver’s negligence,” Clark said. “Those who haven been catastrophically injured on our roads are potentially extremely vulnerable. It is therefore vital that our system supports them and provides a genuine safety net.”
MAY 2015 I LSJ 15
BRIEFS FROM THE ARCHIVES
review THE YEAR IN 2006
Take a trip down memory lane through the pages of the Law Society Journal.
WHAT’SNEW? Defamation law goes national with the introduction of the Defamation Act 2005 . In one change, general damages are capped at $250,000. The Family Law Amendment (Shared Parental Responsibility) Act 2006 begins and 65 Family Relationship Centres open across Australia in an attempt to improve the experience of separation and divorce for families. DOUBLEJEOPARDY NSW Premier Morris Iemma announces plans to overhaul the double jeopardy rule, which prevents a person from being tried twice for the same o ence. June McPhie, president of the Law Society of NSW, opposes any change to the double jeopardy rule saying the core doctrine “must be preserved”. “To do otherwise would undermine the operation of the presumption of innocence and could lead to terrible miscarriages of justice,” McPhie writes. Even so, legislation is introduced by the end of 2006 that abolishes the rule of double jeopardy in several circumstances. WORKCHOICESCOMES INTOPLAY The Howard Government’s new industrial laws come into e ect on 27 March through amendments to the Workplace Relations Act 1996. While thousands of workers join a national day of protest with rallies in more than 300 workplaces, the Journal tries to help solicitors manage the new laws. “Understanding, interpreting and complying with WorkChoices will be a large and di cult task,” writes Joe Catanzariti. “Lawyers in NSW need to familiarise themselves with a host of new laws and institutions.” The Journal publishes several other articles in the year explaining the new rules and warns that: “The legislation is riddled with uncertainties because of the broad manner in which it has been drafted. This may lead to many legal battles in order to determine the actual meaning of various sections of the Act.”
LETTERTOTHEEDITOR Crystal ball
I am seriously concerned that suburban practitioners as well as rural practitioners such as myself will soon only exist on shelves in universities preserved in formaldehyde to be viewed as strange creatures from another era who became extinct for some reason or another. We will be survived by the very well-tailored corporate practitioners, living in the big Sydney firms, who will be able to tell interesting tales to their children about how solicitors once existed outside of 30-storey buildings and worked in little towns with interesting names. How quaint. I say this as I recently noted legal services being provided and advertised under the trading name LJ Hooker Conveyancing. Geo Archer, Nelson Bay
The first stage of the new Parramatta Justice Precinct opens with a new Children’s Court hearing cases from November.
Michael Tidball is named Chief Executive O cer of the Law Society of NSW in November.
16 LSJ I JUNE 2015
BRIEFS CAREER MOVES
MEMBERS ON THE
COSTS ADVICE THAT COSTS YOU NOTHING
COSTS ADVICE THAT COSTS YOU NOTHING COSTS ADVICE THAT COS S YOU NOTHING PAULAPATHY Promoted to partner, Finance Herbert Smith Freehills, Sydney
GRANTKOCH Appointed as Head of Private Equity (Australia) DLA Piper, Sydney
CHARMIANSEIL Joined as a solicitor Jenkins Legal Services, Newcastle
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ASTRIDBEEMSTER Promoted to partner, Real Estate DLP Piper, Sydney
BRYONYADAMS Promoted to partner, Disputes Herbert Smith Freehills, Sydney
NICKWATTS Now a partner, Construction Holman Fenwick Willan, Sydney
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ALANAJACQUET Appointed as a solicitor Edwards Family Lawyers, North Sydney
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BRIEFS OUT AND ABOUT
LAWYERSREMEMBERGALLIPOLI On 23 April, more than 70 guests met at The Law Society to commemorate the 100th anniversary of the Gallipoli o ensives. The Hon Justice Brereton AM RFD was the keynote speaker, while LTCOL Colin Dunston recited the ode of remembrance.
PHOTOGRAPHY: CHRIS GLEISNER
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BRIEFS OUT AND ABOUT
Join us for a great night of trivia, food, prizes and fun in support of our 2015 Charity, beyondblue
Thursday 23 July 2015
6.00pm - 10.00pm
NSW Leagues Club, 165 Phillip Street, Sydney NSW 2000
BOOK YOUR TICKETS ONLINE TODAY: Single Ticket https://events.lawsociety.com.au/2015/513/ Table Ticket https://events.lawsociety.com.au/2015/514/
MAY 2015 I LSJ 21
panel independently checks the accuracy of the information provided to it. It also has some power over the people being assessed to ensure a high degree of compliance with its processes. The panel may find that an individual functional life as a responsible citizen. In this case, no or limited follow-up from a drug treatment agency may be recommended. Alternatively, if the panel decides that an individual is not functioning as a responsible citizen because their drug use is excessive and uncontrolled, the individual will be referred for treatment. The powers of the CDT are sufficient to ensure most people referred to treatment attend and comply. The CDT has a broad range of sanctions to choose from, including fines, suspension of the right to practice associating with certain persons, a ban on foreign travel, a requirement to report periodically to the committee, withdrawal of the right to carry a gun, and suspension of public subsidies or allowances. Most of the evaluations of Portugal’s 2001 policy have been largely favourable. Problematic drug use appears to have declined, as shown by falling figures for crime, drug overdose deaths, HIV infections among people who use drugs, and number of prison inmates serving sentences for drug- related offences. On some (but not all) figures, drug use in the general population has increased. However, these increases are lower than increases in neighbouring countries (such as Spain and Italy) during the same period. It is also possible that a less draconian environment for drug use provides a lower disincentive for respondents to provide honest information about their drug use in surveys. One negative is using drugs frequently but still managing to lead a normal and a profession or occupation, a ban on visiting certain places, a ban on
Almost 15 years since Portugal changed how it treats drug users, DR ALEX WODAK reports that Australia has lessons to learn from the radical approach. WARON DRUGS PORTUGAL’S
T wenty-five years ago, Portugal had many severe problems associated with illicit drugs. HIV was spreading extensively among and from people who injected drugs and the levels of drug-related crime and overdose deaths were alarming. The parliament and community vigorously debated the drugs issue. Many had come to the conclusion that drug prohibition had failed and it was time to consider other options. The Netherlands in the 1970s and Switzerland from the early 1990s had both had similar experiences and found they each benefitted considerably by switching from a criminal justice to a health and social approach to illicit drugs. Portugal commissioned a new drug policy from an expert group chaired by Dr João Goulão, an eminent doctor widely respected for his drug treatment expertise. The expert group prepared an
alternative policy that was considered by the parliament and adopted without modification. The new policy became operational on 1 July 2001. According to this policy, when police find people to be in possession of illicit drugs, the types of drugs are identified and weighed. Threshold quantities, equivalent to estimates of 10 days’ use, have been determined for every different kind of illicit drug. People in possession of quantities above these threshold limits are deemed to be possible drug traffickers and referred to the courts for consideration against the criminal code. People found in possession of quantities below these threshold limits are referred for a health and social assessment at the Commission for the Dissuasion of Drug Addiction (Comissões para a Dissuasão da Toxicodependência – CDT). At the CDT, a panel consisting of health and social professionals makes an assessment of the individual’s drug use, health and social functioning. The
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change. The experts consider that the adoption of their proposals in their entirety was critical, as they feared that political cherry-picking of less popular elements would have weakened the policy considerably. Enhancement of the drug treatment system clearly has made a substantial contribution to the progress Portugal has achieved. Most policy change is incremental and not radical. Although the 2001 policy has improved outcomes and reduced costs while maintaining popular support, it is hard to know what the future holds. Portugal’s drug policy seems unlikely to return to the previous criminal justice approach. Incremental reform along the lines already taken seems much more likely. Cannabis reform is slowly spreading in Western Europe. Cannabis social clubs have been established recently in neighbouring Spain and are well accepted, avoiding the drawbacks of the black market and a vigorously commercial supply system. The size of the cannabis economy in Australia has been compared to our wine industry. This is a large black market and, therefore, represents a considerable risk of corruption. One of the attractions of regulating this market is reducing the risk of official corruption. As the failure of drug prohibition becomes more apparent and more countries start developing novel ways of managing drugs currently classified as illegal, Australia will have an increasing number of alternative models to consider. Portugal provides more than a decade of experience of a reform approach that reduces the emphasis on the criminal justice system without attempting to regulate any of the drug market.
Portugal has not attempted to regulate any of its illicit drug market. This is unlike the approach taken in Colorado and Washington states in the USA, which started taxing and regulating cannabis in 2014 following majority ballot votes in 2012. After a similar majority vote in 2014, Oregon and Alaska are now committed to start taxing and regulating cannabis. Uruguay, Jamaica and Geneva have also indicated an intention to tax and regulate cannabis. New Zealand began regulating new psychoactive substances in July 2013, but suspended this 10 months later after encountering problems with its new assessment system. Portugal has the option of regulating its drug market in the future if required. The options for drug policy are often assumed to be the status quo, decriminalisation, depenalisation and legalisation. Portugal’s policy illustrates the shortcomings of these labels. Drugs have clearly not been “legalised” in Portugal. The label “decriminalisation” is also an inadequate description as criminal sanctions have been removed for drugs below certain specified quantities but retained for quantities exceeding the thresholds. “Depenalisation”, referring to a reduced severity of penalties, is also an inadequate term to describe the Portuguese changes. Representatives from many other countries have visited Portugal to explore the possibility of adopting a similar approach. So far, no country has adopted a new approach and attributed its new policy to Portugal’s model. The international control system has accepted that Portugal’s policy is not inconsistent with her international drug treaty obligations. Lessons for Australia There are many lessons Australia should draw from Portugal’s experience. A vigorous community and parliamentary discussion about drugs and drug policy options helped prepare the nation for
consequence of the 2001 policy has been an increase in small-level drug dealing in public. However, most Portuguese consider this to be more of a nuisance than a major problem. The Cato Institute, a US thinktank strongly supportive of drug law reform, has published very favourable evaluations of the 2001 Portuguese drug policy, but the Association for a Drug-Free Portugal has been very critical of it. Professor Alex Stevens, an English academic, and Dr Caitlin Hughes, an Australian academic, have published several papers evaluating the policy and are generally supportive of Portugal’s approach. Strong community support There are indications that the policy has strong community support. Large majorities in opinion polls have been consistently supportive. In the changes of government since 2001, modifications of the policy have been few and minor. Portugal, one of the poorest countries in Western Europe, was badly affected by the global financial crisis of 2008. Subsequently, the government implemented an austerity policy to reduce government debt and the budget deficit. However, the budget of the CDT was left largely intact as the organisation was thought to be achieving net savings for the government. In 2001, the Portuguese government not only changed the laws relating to drug possession but also considerably expanded and improved the country’s drug treatment system. Opioid Substitution Treatment (OST) for heroin users in the form of methadone or buprenorphine is now much improved and readily available. It is hard to know whether the changes in laws relating to drug possession or treatment expansion and enhancement are mainly responsible for the apparent improved drug-related health and social outcomes.
Dr Alex Wodak AM is Emeritus Consultant, Alcohol and Drug Service, St Vincent’s Hospital, President of the Australian Drug Law Reform Foundation, and Director, Australia21.