FROMBOY SOLDIER TOGUNSOLICITOR HOWDENG ADUT’S EXPERIENCE AS A CHILD SOLDIER AND REFUGEE SHAPED HIS FUTURE
REFLECTIONSOFAJUDGE STEPHEN SCARLETT ON WHETHER YOUNG LAWYERS ARE MEETING EXPECTATIONS
ADVANCINGOURWOMENLAWYERS A NEW CHARTER FOR REACHING EQUALITY FACINGTHEMUSICWITHDIGNITY DEALING WITH MISTAKES AT WORK THE INTEGRITYOF THERAPEUTICRECORDS WHY IT MATTERS IN FAMILY VIOLENCE THECHANGINGNATUREOF EVIDENCE DEVICES AND THE INTERNET OF THINGS
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22 GLOBALFOCUS Two academics discuss
34 WOMENONTHEMOVE Two new strategies – a charter for the advancement of women and an equitable briefing policy for barristers – are designed to boost diversity at all levels of the legal profession 38 ADAY INTHELIFE Julie McCrossin speaks with retired Judge Stephen Scarlett about his diverse 28-year judicial career 42 CAREERCOACH Fiona Craig o ers advice on what to do when you make a mistake at work
Meet building and construction lawyer Lelien Chua, who wears boardshorts to client meetings so she can go surfing afterward 54 HEALTHYLIVING Paul Phillips discusses how three techniques can help you recharge and redirect your life 62 YOUWISH Jane Southward discovers luxury in the Australian bush at O’Reilly’s Rainforest Retreat in Queensland
the chances of Philippines President Rodrigo Duterte facing the International Criminal Court for his bloody war on drugs 26 INFOCUS Ransomware poses a threat to the cyber security of law firms. Kate Allman outlines the best ways to protect your data 28 COVERSTORY Read an emotional excerpt from Songs of a War Boy , the new autobiography of Sudanese child soldier-turned- Sydney solicitor Deng Adut
ISSUE 28 I NOVEMBER 2016 I LSJ 3
50 LIBRARYADDITIONS 55 FITNESS
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS 14 THE LSJ QUIZ 19 CAREERMOVES Who moved where this month 38 PROFILE
69 ADVOCACY: THE LATEST IN LAW REFORM
72 FAMILY: THERAPEUTIC RECORDS & CONFIDENTIALITY
Five common injuries and how to avoid them
74 RISK: RISK MANAGEMENT & CLAIMS PREVENTION
76 TAX: BILATERAL TAX TREATY INTERPRETATION
Why you need a relationship reboot
78 TAX: NEWGST LAWS & NON RESIDENT CLIENTS
Julie McCrossin meets Judge Stephen Scarlett
80 PRACTICE: NEW FEDERAL COURT PRACTICE NOTES
Ute Junker explores the emerging tourist hotspot of Zurich
82 HUMANRIGHTS: ABORTION LAW REFORM IN NSW
Bradley Beasley started his career as a painter. He now owns a legal practice and lectures in law at university
84 STRATA: THE LEGALITY OF SHORT TERM LETTING
Book reviews, events and our movie giveaway
86 GUARDIANSHIP: NCAT & POWERS OF ATTORNEY
66 NON BILLABLES
88 TECHNOLOGY: THE INTERNET OF THINGS
Fashion, etiquette, and tips on how to land those unadvertised jobs
Yarns we can’t bill for
106 EXPERTWITLESS Because if we can’t laugh at ourselves ...
90 COSTS: OFFERS, COSTS & JUDICIAL DISCRETION
93 CASENOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS
4 LSJ I ISSUE 28 I NOVEMBER 2016
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A WORD FROM THEEDITOR
When LSJ Associate Editor Jane Southward rst met solicitor Deng Adut in 2014, she returned from the interview with him in a state of excitement. Pro ling Deng for our “A Day in the Life” series, she had been suitably struck by his commanding physical presence. She had also been utterly blown away by his personal story of life as a child soldier in Sudan, and by his generosity of spirit which saw him o er to represent pro bono a distressed unrepresented litigant he met at Burwood Local Court. Jane wrote a fascinating article about Deng for the LSJ ,
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
and now, in Deng’s newly-released book, Songs of a War Boy , we can read his complete, heartrending and inspiring story. It is a revelation. It is impossible for so many Australians to fully understand Deng’s ordeal. e horrors he endured exist only in the imagination of most people. But this was Deng’s life. For him, it is very real. e story is told with frankness and stoicism, and the underlying strength of Deng’s character, which today shapes his legal career and determination to make a di erence, shines through. We are lucky enough to have Deng coming to the Law Society on 8 November to speak at a ought Leadership breakfast event. So, if you’re looking for a little inspiration, join us. Visit lawsociety.com.au/thoughtleadership for more information.
Fiona Craig has more than 20 years experience training and mentoring lawyers. In this issue she o ers practical and brave advice on what to do when you make a mistake at work. Owning the error is foremost, she says. Find out more. Career p44
Sarah Williams is an associate professor at the University of NSW. She writes, with PhD candidate Emma Palmer, about Philippine President Rodrigo Duterte’s brutal approach to drug dealers
Julie McCrossin trained as a lawyer and is a writer, broadcaster and facilitator. Read her feature about former Judge Stephen Scarlett OAM, who recently retired from the Federal Circuit Court after a 28- year judicial career. A life in the law p38
Matthew Cridland is Head of GST & Customs (Australia), at DLA Piper. In his first article for LSJ, he writes about reforms to GST and how they impact legal services for non- resident clients . Taxation p78
and the chance of an International Criminal Court investigation. Global focus p22
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.
I am pleased to report that following a sustained and collaborative effort by the legal profession, the State Government has recently indicated its intention to undertake further work on its reform agenda for NSW CTP Green Slip Insurance. In the meantime, it will implement the legal profession’s suggested approach to legal costs, which was put to government in March. It is now incumbent on the legal profession to further persuade the Government as to the need for a scheme design that delivers sustained premium costs savings while preserving benefits for those who are injured on NSW roads. On this basis, the coming months will be critical as we continue to advocate for a more equitable scheme.
We have now moved past the phase of aspirational statements into the rigour of specific initiatives in our work on the
advancement of women lawyers. The Law Society recently launched its Charter for the Advancement of Women in the Legal Profession, which is designed to promote and support strategies to retain women in the profession over the course of their careers, and encourage and promote their career progression into senior executive and management positions. I commend those law firms that have already signed up to the Charter, and I strongly encourage the broader profession to get on board with this important initiative. I was delighted to attend the Law and Justice Foundation of NSW Annual Justice Awards at NSW Parliament House last month. Each year, these important awards recognise the work of individuals and organisations that have improved access to justice for socially and economically disadvantaged people. I congratulate solicitor Richard Brading from Wesley Community Legal Service, winner of the 2016 Justice Medal for providing legal assistance over many years to those with gambling-related problems. Our new history book, Defending the Rights of All , was officially launched at NSW Parliament House in October. This impressive piece of work charts the history of the Law Society and the NSW legal profession over almost 175 years. I would particularly like to thank her Honour Justice Julie Ward, from the New South Wales Court of Appeal, who was kind enough to provide the foreword to the book, as well as Law Society councillors, staff and members who had a hand in getting this publication off the ground. I also acknowledge the skill and hard work of the book’s joint authors, Michael Pelly and Caroline Pierce. Copies can now be purchased via the Law Society website. Finally, I would like to thank all those who have attended the Future of Law and Innovation in the Profession (FLIP) Commission of Inquiry in recent weeks. In October, the FLIP Commission heard evidence on diversity, new processes, and managing change in the legal profession. The library of video evidence continues to expand and is available on the Law Society website.
8 LSJ I ISSUE 28 I NOVEMBER 2016
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ISSUE 28 I NOVEMBER 2016 I LSJ 9
LETTERS TO THE EDITOR
Plebiscite or referendum? I quite agree with Professor George Williams (September LSJ p38-41) that there should be no plebiscite on same-sex marriage. It clearly requires a referendum. Neither the Commonwealth Parliament nor the High Court has the power to alter the meaning of the word “marriage” in section 51(xxi) of Clause 9 of the Commonwealth of Australia Constitution Act 1900 (Imp). Terms in the Constitution Act and Constitution have the meaning they had in English law in 1900. When the late Queen Empress put Her Royal Assent to the Bill for it to “be enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal”, Victoria was granting a power to make laws with respect to things as she understood them in law and common parlance. She was not giving her servants power to write their own instructions. Anything said to the contrary should be dismissed as merely a rush of blood to the head or an obiter frolic. It’s a pity no one makes students read Quick and Garran anymore. Terry Dwyer Dwyer Lawyers, Canberra Assisted dying Trevor Khan’s article proposing the Voluntary Assisted Dying Bill (September LSJ p24-25) falsely claims that not everyone has the option to refuse medical treatment, such as refusing kidney dialysis. Every adult has the option of refusing life- prolonging treatment. In such case, the death certificate would note the cause of
is dated by the Registrar General on the day of issue and that is all that is required. My dating my certification would be of no further utility than if I dated a photo of the Rosetta Stone. As a profession, we are being asked to do stupid and unnecessary things with increasing frequency and on diminishing profit margins. We Why so serious? Bah Humbug to the whingers complaining about the “Dressed to Impress” page. In an age where the dress code for almost all occasions is dull, boring and sloppy, those who take some trouble to make the most of their appearance and demonstrate an individual style, should be appreciated, not dismissed. Complimenting someone on his or her appearance is not the same as judging a person immediately apologised. He thought I might be offended, that it might be inappropriate to remark on my appearance. I quickly set him straight: compliments are always appropriate. Keep them coming! How sad that everything is taken so deadly seriously comments. Perhaps they are horizontally and aesthetically challenged themselves, and simply envious of the impressive dressers. I bet their wardrobes are all black. I suggest they go shopping and buy a colourful new spring outfit. They will must resist such things. John Emmet McDermott McDermott & Associates by their appearance. A colleague recently complimented me, then nowadays. I think envy is behind the whingers’
death as kidney failure. Whereas the new bill allows for medical practitioners to assist a patient to administer a toxic substance to themselves – so the death certificate would list “toxification” as cause of death – and with no one being prosecuted. Most doctors who studied medicine before the mid- 1980s are ignorant of effective pain relief, and so their patients died in “excruciating” palliative care such that most physical pain can be removed, and patients can live dignified though dependant lives. If someone is lonely or in existential angst about their future, this is not something the law or doctors can fix by assisting patients to end their lives. And who is going to subsidise all these separate medical “safeguard” reports? They are hardly what is within the definition of what is “medically necessary” for a Medicare rebate. Makework With increasing regularity I am asked to forward a copy of a death certificate to banks and insurance companies, when I forward a certified copy of the Grant of Probate. I have fallen into the habit of suggesting that “it is a long time since the Supreme Court of NSW issued a Grant of Probate for the will of somebody who had not actually died”. When I do forward a death certificate, for a proper purpose, I am now asked, again with increasing frequency, why my certification has not been dated. I point out that the death certificate (sometimes it is a birth certificate or similar) Polly Seidler Darlinghurst physical pain. There have been huge advances in
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WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WINLUNCHFORFOUR at the Law Society dining room. E: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! TerryDwyer has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 28 I NOVEMBER 2016
Country or city? It was with some interest that I noted the location of practice of some of the candidates for election who were nominating themselves as “country members”. On reviewing clause 12 of the Law Society Articles, I was surprised to see the Central Coast, Macarthur, Newcastle and Wollongong areas are viewed as “country”. This would have been the case when sheep and cattle fields commenced just west of Parramatta and the river systems to the north and south of Sydney imposed a natural boundary. With the increasing urbanisation of the last few
decades, most would now consider Macarthur and the Central Coast as outer suburbia, and Newcastle and Wollongong as “city” as they have become major satellite cities of Sydney. Practising law in the “country” (and by this I mean in a town or city where the nearest major centre is 100km or more distant) raises certain di culties that most practitioners on the fringe of Sydney would have no experience of. It is time for “country”, “city” and “suburban” definitions, for the purposes of our Articles, to be revisited.
experienced some solicitors appearing in court in casual clothes, such as jeans and open necked shirts (especially on so-called casual Fridays). Casual dress suggests that the solicitor is treating the proceedings as a casual occasion, and should not appear dressed as if they are going to a barbecue. Respect for the institution of the courts and for the clients, and the seriousness of the occasion demands a better attitude than this. If younger solicitors in particular need any guidance, then the “Dressed to impress” piece should be compulsory reading. The Hon David Lloyd QC
feel (and probably look) so much better. Helen MacKenzie, Duncan & MacKenzie Judging fashion Contrary to the views of some letter writers, I have enjoyed the regular inclusion in the LSJ of the “Dressed to Impress” page and totally reject the criticism of its inclusion. In my former role as a judge I noted the deterioration in the standard of dress of some solicitors appearing in court. Court proceedings represent a serious occasion of great importance to the clients. Solicitors should therefore dress appropriately. I
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ISSUE 28 I NOVEMBER 2016 I LSJ 11
Time todomore for the vulnerable: GillianTriggs
The judiciary has been no friend to the most vulnerable in society, according to Professor Gillian Triggs. BY JANE SOUTHWARD .
P resident of the Australian Human Rights Commission Professor Gillian Triggs used the NSW Young Lawyers (NSWYL) State of the Profession address on 22 September to hit out at the judiciary, governments and lawyers for not doing enough to help the vulnerable. Triggs, who is the 2016 patron of NSWYL, said she hoped her address would leave young lawyers “breathing fire and brimstone in fury at the failure of parliaments, judges and the legal profession to adequately protect our fundamental common law freedoms that are so frequently overridden today”. “I have become concerned that lawyers in Australia, whether as solicitors, barristers, parliamentarians, judges, in-house counsel, or working in the media or with civil society, have failed to recognise and stand up for the rights and freedoms that have underpinned our multicultural democracy,” Triggs said. “There seems to be some kind of fatigue among the profession so that we are sleep walking into accepting the unprecedented rise (outside wartime) of executive powers and ministerial discretions that are not subject to full judicial scrutiny.” Triggs pointed to the treatment of Indigenous juveniles in detention in the Northern Territory and offshore detention of asylum seekers as examples she hoped the legal profession would do more to resist. She claimed Australia was “historically a good international citizen”, but had become isolated from international human rights jurisprudence and practice over the past 15 years. She noted that the Australian Human Rights Commission received about 18,000- 20,000 inquiries and complaints each year alleging breaches of human rights and anti-discrimination laws.
“Australia is in a region where we have no convention on human rights or a regional court to develop an accepted jurisprudence on fundamental freedoms,” Triggs said. “Common law rights and freedoms are typically overridden by unambiguous statutes to the contrary.” Triggs highlighted “the unpalatable fact” that more than 95 per cent of juveniles held in the NT system were Indigenous and that the national figure for Indigenous incarceration was about 55 per cent of prison inmates. “The more than 300 recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1995 have not been adopted, more than 25 years after they were made,” Triggs said. “Today, the numbers of Indigenous people in detention has more than doubled from the time of that Royal Commission.” Triggs also raised the case of a Bangladeshi asylum seeker who was intercepted at sea three years ago and detained on Christmas Island on 19 October 2013 as an unlawful non- citizen for the purposes of the Migration Act . The woman was transferred back in December 2014 and although she commenced proceedings in the High Court to reverse her return to Nauru, she has remained there since. Her refugee status remained undetermined nearly
two and a half years after her arrival. “One of many questions this case raises is: what kind of lawyer would suggest to the government that the illegality of removals offshore of asylum seekers could be cured by retrospective legislation to authorise what was otherwise probably illegal? Did any lawyer from Prime Minister and Cabinet or the Attorney-General’s Department or the Department of Foreign Affairs and Trade raise the principles of international law, or even the ethics of such a retrospective law?” Triggs said. Triggs called on the legal profession to be “alert and alarmed by the failure of our legal system to protect fundamental rights, especially by the failure of Parliament and the courts to protect the rights and freedoms that have evolved over millennia”. “The legal profession has historically seen the protection of fundamental rights and freedoms as a core professional responsibility,” Triggs said. “I would like to see a refreshed commitment to protecting our freedoms so that lawyers are champions of the vulnerable and disadvantaged and that we have the courage to speak out against injustice.”
“I have become concerned that lawyers in Australia, whether as solicitors, barristers, parliamentarians, judges, in-house counsel, or working in themedia or with civil society, have failed to recognise and stand up for the rights and freedoms that have underpinned our multicultural democracy.”
PRESIDENT OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION, PROFESSOR GILLIAN TRIGGS
12 LSJ I ISSUE 28 I NOVEMBER 2016
NSWYoungLawyers receives Law Council award formentoringprogram
The Criminal LawCommittee of NSW Young Lawyers has won the 2016 Australian Young Lawyer organisation award for its program, A Day in the Life of a Criminal Lawyer. Two Australian Young Lawyer awards are presented annually by the Law Council of Australia’s Young Lawyers’ Committee, to recognise excellence in young lawyers and young lawyer organisations. This year, the Criminal Law Committee of NSW Young Lawyers won the organisation award for its popular mentoring program that pairs law students with volunteer criminal lawyers so the students receive insights into the daily work of a criminal lawyer. The program ran between March and July 2016 and received 351 student
applications. Fifty lawyers volunteered, some of whom took on more than one student to o er a total of 68 students places in areas all over NSW, including Sydney, Wagga Wagga, Port Macquarie, Co s Harbour, Bathurst, Armidale, Lismore and Dubbo. “For students who do not yet know which avenue of law to pursue, there are few avenues to gain criminal law experience,” said Law Council of Australia President Stuart Clark AM. “This program has addressed this issue and received terrific feedback from all involved.” Program Coordinator and NSW Young Lawyer Lauren Mendes said the program would continue with a new intake of students and volunteers in March 2017.
NSW Young Lawyer Sam Murray, left, with his mentor Andrew Tiedt, of Armstrong Legal.
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ISSUE 28 I NOVEMBER 2016 I LSJ 13
Students and universities need to stop referring to “alternative career paths” but rather should emphasise the “many options available” for law graduates, according to a panel of professionals in different legal roles who spoke at a NSWYoung Lawyers event last month. “The Clerkship Conundrum” seminar addressed an audience of students and prospective job-seekers at the University of Technology Sydney on 11 October about the challenges law graduates face in an increasingly competitive jobs market. The panel included Robyn Howard, Professional Development Director at Johnson Winter & Slattery, Dominic Woolrych, Legal Product Manager at LawPath, Kristin Barratt from Thomson Reuters, Yin Chiew, Legal Recruitment Consultant at Robert Walters, James Skelton, solicitor at Swaab Attorneys, Sarah Warren a barrister at 9 Windeyer Chambers and Eric Norris, Graduate Resourcing Advisor at MinterEllison. The panel hoped to highlight alternatives for students who missed out on clerkship positions and were unsure how to start their careers in law. LEGALCAREERPATHNOT SOSTRAIGHTFORWARD “We don’t talk about lawyers somuch any more. We talk about business professionals trained in law.” WILMA LEWIS, PROFESSIONAL DEVELOPMENT DIRECTOR, JOHNSON WINTER & SLATTERY According to The Australian Financial Review , the number of law graduates in Australia this year reached a record high, with 14,600 graduates entering a legal jobs market comprising 66,000 solicitors. In such a competitive market, Professional Development Director at Sydney law firm Johnson Winter & Slattery Wilma Lewis said graduates needed to think laterally and consider options other than the traditional clerkship-to-graduate position career path. “We don’t talk about lawyers so much any more. We talk about business professionals trained in law,” said Lewis. However, for graduates keen on the traditional path via top-tier law firms, the panel agreed that business- minded applicants who could demonstrate an interest in the legal commercial environment were more likely to succeed in job interviews.
Cross-examination Test your legal knowledge ...
1. Who is the 2016 President of the Law Council of Australia?
2. Where is the original Constitution of Australia kept?
What is the legal drinking age in the USA?
4. In what year was the Australian Constitution amended to recognise Indigenous Australians as citizens?
5. What is the speed limit for school zones in NSW?
6. Name the law firm that recently filed a class action on behalf of shareholders against Slater & Gordon?
7. Who is the Australian Solicitor-General?
8. Prostitution is legal in NSW – true or false?
9. In family law, what is the paramount consideration for the court to consider when making a parenting order?
10. What is the name for a judge’s hammer?
Answers on page 65.
On 26 September 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Anthony Neary Walker, solicitor, as manager of the law practice known as LAC Lawyers Pty Ltd for a period of two (2) years. On 26 September 2016 and pursuant to s.327(2)(b)(ii) and (iii) of the Legal Professional Uniform Law (NSW), the Law Society Council appointed George John Mallos, solicitor, as manager of the law practice formerly known as Morgan Ardino & Co for a period of two (2) years.
14 LSJ I ISSUE 28 I NOVEMBER 2016
SOLICITORDENGADUT THOUGHTLEADERSHIPEVENT Start the day with a bit of inspiration. The Law Society of NSW invites you to hear Sudanese child soldier-turned- Sydney solicitor Deng Adut share his personal story of triumph over adversity. Tickets include a copy of Deng’s new autobiography, Songs of a War Boy . Date: Tuesday, 8 November Time: Registration 7am, seated for breakfast 7.25am (event concludes at 9am) Where: The Law Society of NSW, 170 Phillip Street, Sydney, Level 2 Register: Members $112 | Non-members $129 Visit https://events.lawsociety.com.au/2016/855/ to book. Seats filling fast.
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The LawSocietyofNewSouthWales,NSW Young LawyersandAustralianNationalUniversitypresent
When it comes to wellbeing, NSW Young Lawyers and the Law Society ofNew SouthWales are keen to lead. BeingWell in theLaw is a toolkit for lawyers. Itdrawson expert andmultidisciplinary knowledge about the breadth of mental health problems and offers ideas to help everybody, young and old,dealwithdepression, anxiety and stress and learn tobettermanage thebusiness andpressuresofwork and life. We all share a responsibility to continue the conversation aboutmental health. In the legal profession this is especially important as lawyers have aheightenedpre‑disposition todepression andmental illness. This smallbut importantbook,with itsvaried suggestionsandpersonal stories frompeoplewhohave been touched bymental illness, is a solid first step towards ahappier andhealthierworld.
2016 Justice Medallist Richard Brading, right, with Sky News journalist Stan Grant who delivered the 2016 Law and Justice Address.
The Law Society of NSW, NSW Young Lawyers and Australian National University will launch the first wellbeing self- help guide for the legal profession in November. Being Well in the Law offers lawyers practical, holistic and achievable ways to boost health and wellbing and improve mental health. The book includes personal stories of several people in the legal profession who open up about their experiences with mental health issues. Being Well in the Law is free to members of the Law Society
Sydney lawyer and founder of Wesley Community Legal Service Richard Brading has won the 2016 Justice Medal for outstanding work providing community legal services to problem gamblers and driving reform in response to the impact of problem gambling. Sir Anthony Mason presented the medal in front of 330 people at the 18th annual Justice Awards at Parliament House in Sydney on 13 October. Director of the Law and Justice Foundation of NSW Geoff Mulherin said, “A true pioneer, Richard Brading established the Wesley Community Legal Service, the world’s only free legal service for problem gamblers and their families, over 20 years ago. He has provided advice and representation to hundreds of people, in many cases turning their lives around. Richard has also taken gambling operators to task in an effort to reduce the social harm caused by problem gambling.” Hazel Collins, Laura Lyons, Patricia MacKenzie, Debra Swan, Jennifer Swan and Suellyn Tighe, who are Grandmothers Against Removals (GMAR), were presented with the Aboriginal Justice Award for their efforts to ensure there is appropriate Aboriginal participation in child protection decision making. The Law and Justice Volunteer Award was awarded to Janette Perram for her 25 years volunteering at Burwood Court providing support to victims of domestic violence. Wollongong Women’s Information Service and the law firm Carter Ferguson won the Pro Bono Partnership Award for their collaboration to provide pro bono legal services to women experiencing domestic violence in Wollongong and the Illawarra region. Two other awards were presented to recognise groups that have made an outstanding contribution to improving access to justice for socially and economically disadvantaged people in NSW. The Community Legal Centres NSW Award was presented to Inner City Legal Centre for its project providing legal advice and representation for transgender young people going through medical procedures and their families. The Legal Information Access Centre of Excellence Award was awarded jointly to Richmond-Upper Clarence Regional Library and Tamworth City Library.
and NSW Young Lawyers. Visit the Society shop on level 1 of 170 Phillip Street, Sydney, after 3 November to pick up a copy or email eshop.lawsociety.com.au
16 LSJ I ISSUE 28 I NOVEMBER 2016
six minutes with
What inspired your passion for legal aid, human rights and access to justice issues? My dad came from Hungary to Australia as a refugee in 1949 when his family was displaced at the end of World War II. That has given me a strong sense of gratitude for the opportunities I had growing up in Australia. As someone who has had the enormous privilege of getting a law degree, I feel very passionate about human rights and access to justice. I also feel an obligation to make something of those opportunities and to help people who haven’t had those opportunities. The National Association of Community Legal Centres says it is facing a $34.84million cut between 1 July 2017 and 30 June 2020. Howwill these cuts affect PIAC? We are very concerned about the impact of those funding cuts. It’s really disappointing that, even when the Australian Productivity Commission has recognised the value to society of a properly resourced community legal sector, as well as the cost to society of not having that support available, the government still wants to cut funding to community legal work. Since then, his career has been split between Sydney and the Northern Territory, working for the NT Legal Aid Commission in Darwin, the Central Land Council in Alice Springs, the Australian Human Rights Commission in Sydney and, most recently, the North Australian Aboriginal Justice Agency, where he was Principal Legal Officer. He speaks to KATE ALLMAN . JONATHON HUNYOR CEOOF PIAC Jonathon Hunyor took over from Ed Santow as Chief Executive Officer of the Public Interest Advocacy Centre (PIAC) in Sydney in August. Hunyor, 44, began his legal career as a student volunteer at the Australian Centre for Disability Law while he was studying economics and law at Sydney University. He turned his hand at corporate law as a summer clerk at Freehill Hollingdale & Page (now Herbert Smith Freehills) and quickly realised his passion was in helping individuals through
community legal centres. The challenge for PIAC is to make sure people recognise the unique role that we play by focusing our legal work around test cases and strategic litigation. Look at the work we did representing Graeme Innes against Sydney Trains regarding the failure to make “next stop” announcements for vision-impaired people. We won that case but the impact wasn’t for just one person, it was for the thousands of blind or vision impaired people in NSW who previously couldn’t ride the trains alone. What projects or objectives will you focus on at PIAC? PIAC’s strategic plan recognises that homelessness is a significant issue. We also will continue to focus on the rights of Aboriginal people, particularly Aboriginal young people, issues around policing of young people, bail laws and enforcement of bail conditions, accessibility for disabled people to things such as public transport, media and the internet. Those sorts of grassroots issues are at the heart of what PIAC does differently and does well. I can’t see any radical changes in the direction and work that PIAC does.
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mind your ethics
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
For the full round-up of Law Society advocacy, see page 68.
JUGGLINGLAW ANDASECONDJOB BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR
Local Courts in rural and regional areas
The Law Society wrote to the Attorney-General about the ongoing problem of underfunding in the Local Court of NSW, and the impact this is having on the court’s performance and access to justice in rural and regional areas. The submission noted that the reduction in the number of magistrates and corresponding increase in the caseload of the court would inevitably lead to delays in matters being finalised. In criminal matters, this would prolong the time spent in custody on remand by the accused and prolong the process for the alleged victim. Counter-TerrorismLegislation Amendment Bill (No 1) 2016 The Juvenile Justice, Criminal Law and Human Rights committees provided a joint submission to the Law Council of Australia on the Counter- Terrorism Legislation Amendment Bill (No 1) 2016 (Cth) regarding control orders. The committees reiterated their concerns about those aspects of the 2015 Bill identified in its earlier letter to the Law Council that have not been addressed by the recommendations of the Parliamentary Joint Committee on Intelligence and Security or the 2016 Bill. They also provided additional comments on the recommendations and the 2016 Bill. Koori Courts inNSW The Indigenous Issues, Criminal Law and Juvenile Justice committees wrote a joint letter to the Attorney-General regarding the expansion of the existing Youth Koori Court pilot. The committees noted the Law Society’s strong support of options for diversion for young offenders and, in particular, measures to reduce the increasing rates of Indigenous youth incarceration and contact with the criminal justice system. The committees supported the expansion of the Youth Koori Court model to other locations and, in particular, in areas with high rates of Indigenous youth incarceration.
Legal practice is undergoing a quiet revolution when it comes to occupation and work practices. The traditional model of a solicitor in an office busy with familiar legal activities of commercial law, probate and local court work is shifting to new areas of activity, often quite separate from being a lawyer. We are often asked at the Law Society Ethics Department: “Is it all right if I am involved in another job or business activity when I am a solicitor?” What are some of the ethical obligations? Solicitors must comply with all obligations under our regulatory framework of the Legal Profession Uniform Law, General Rules and Solicitors’ Rules. Other forms of work must be of a nature that does not bring the legal profession into disrepute or compromise the integrity of the solicitor. This fundamental duty can be found in the contents of Solicitors’ Rule 5. Dishonest and disreputable conduct 5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice, or 5.1.2 bring the profession into disrepute. By recognising and upholding these required standards, any other activity a solicitor undertakes should not be in conflict with the duties and obligations of legal practice. With new areas of practice and business opportunities for lawyers to be involved in, it’s important to remember our ethical obligations.
Australian of the Year General DavidMorrison urged the legal profession to change its culture to encourage lawyers to speak out about mental illness amid high rates of depression among the state’s barristers and solicitors. An edited version of the lecture is available at tjmf.org.au
Watch the lecture on the LSJ app.
18 LSJ I ISSUE 28 I NOVEMBER 2016
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
MEMBERS ON THE
JESSICA ELLIS Promoted to Property Solicitor Elliot Tuthill Solicitors
TIMOTHY NICHOLLS Joined as a Solicitor, Family Law Tiyce & Lawyers
GLENN HUGHES Joined as Partner Russells
SARAH BULLOCK Joined as Senior Associate Russells
ELIZABETH MCDONALD Promoted to Principal McCabes Lawyers, Newcastle
Highly qualified and experienced Acoustical Consultant. Can assist with expert witness representation in noise and vibration including: • Environmental noise
Matthew Harrison MEngSc, BE(Mech), MAAS, MIOA, MASA, MIEAust 0425 467 764
MatthewHarrison@pulseacoustics.com.au Level 4, 83 York Street, Sydney NSW 2000
JUNE 2014 I LSJ 1 ISSUE 28 I NOVEMBER 2016 I LSJ 19
Briefs OUT AND ABOUT
YOUNG PROFESSIONALS BALL About 500 young professionals gathered at Four Points by Sheraton Sydney for the 10th annual Young Professionals Charity Ball on Saturday 25 September. CEO of the Alannah & Madeline Foundation, Lesley Podesta, pictured in blue below, gave the keynote address and all proceeds raised were donated to the charity. PHOTOGRAPHY: JASON MCCORMACK
View more photos on the LSJ app.
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OUT AND ABOUT
LAW SOCIETY BOOK LAUNCH Justice Julie Ward was the keynote speaker at the launch of the Law Society’s landmark publication Defending the Rights of All: A History of the Law Society of NSW at Parliament House in October. The book’s co-authors Michael Pelly and Caroline Pierce also spoke, delivering anecdotes from their work on the book. PHOTOGRAPHY: CHRIS GLEISNER
ISSUE 28 I NOVEMBER 2016 I LSJ 21
Briefs GLOBAL FOCUS
attempting to collate evidence to form the basis of a communication to the Prosecutor. The Prosecutor may also gather information independently. Before opening a formal investigation, the Prosecutor would conduct a preliminary examination. First, she would review the reliability, nature and content of the information provided in the communications. Many communications are rejected at this initial stage, as the crimes alleged are manifestly outside the jurisdiction of the ICC. Next, the Prosecutor would consider whether crimes within the jurisdiction of the ICC had been committed. The alleged crimes in the Philippines occurred after the country ratified the Rome Statue in 2011, were committed on Philippines territory and presumably were perpetrated by Philippine nationals. There would therefore be a clear jurisdictional basis to proceed. The more challenging aspect would be whether the conduct could be characterised as crimes within the ICC’s jurisdiction. The acts do not constitute genocide, as the victims were not targeted due to their membership of a national, religious, ethnic or racial group. The “war on drugs” also does not appear to form part of any internal armed conflicts in the Philippines (although drug-related crime may fund the spread of arms), so would not constitute a war crime. Crimes against humanity must occur within a widespread or systematic attack directed at a civilian population. These contextual elements probably would be satisfied for the situation in the Philippines: the deaths are widespread and/or their extent and consistency suggest systematic killings. Drug users and criminals are civilians and arguably constitute a civilian population that is being targeted. So the relevant crimes of murder, enforced disappearances, unlawful imprisonment and other inhumane acts would be crimes against humanity.
Although the death toll in Philippine President Rodrigo Duterte’s “war on drugs” has risen to 3,426 since 1 July, a possible trial of President Duterte before the International Criminal Court is unlikely, and would be years away. However, a criminal investigation could provide an impetus to document crimes and the resulting political debate might prompt some restraint from the Government, write SARAH WILLIAMS and EMMA PALMER . Will President Duterte face court for his bloodywar ondrugs?
P hilippine President Rodrigo Duterte announced a crackdown on drugs when he entered office in June. Figures that were reportedly released by the Philippines National Police (PNP) on 4 September showed that 1,011 alleged drug users and dealers had been killed in police operations, with another 1,391 apparent vigilante killings “under investigation”. Media, lawyers and the Philippines’ Commission for Human Rights have raised the possibility of an International Criminal Court (ICC) investigation. Although possible, an ICC trial is an unlikely outcome. The ICC is an international court located in The Hague, established by an international treaty, the Rome Statute. The ICC may exercise jurisdiction over war crimes, crimes against humanity and genocide. The Philippines ratified the Rome Statute in August 2011. Situations come before the ICC in three ways. First, a party to the Rome Statute may refer a situation to the
ICC Prosecutor. It is doubtful that the Philippines would refer this situation, at least while Duterte remains in power. It is possible that another state party could refer the situation to the ICC, but this has not happened in the 14 years of the ICC’s operation. Second, the United Nations Security Council could refer the situation to the ICC. However, the Philippines is not on the Council’s agenda and it is doubtful that the situation would amount to a threat to international peace and security (although internal human rights violations have attracted the Council’s attention in other contexts). Third, the ICC Prosecutor, Fatou Bensouda of Gambia, could initiate an investigation on her own initiative. Article 15 of the Rome Statute allows States, international organisations and civil society actors to send information (known as communications) to the Prosecutor concerning the commission of crimes within the court’s jurisdiction. Some local and international actors are