PLUS... INSIDE THE TECHNOLOGY, MEDIA & TELECOMMUNICATIONS STACK Australasian legal business
AUSTRALASIAN
LEGAL BUSINESS
www.legalbusinessonline.com
ISSUE 11.03 APRIL 2013
APRIL 2013
WOMEN IN LAW:
PLUS... INSIDE THE TECHNOLOGY, MEDIA & TELECOMMUNICATIONS STACK
Why firms must change SPECIAL REPORT: south australian PERSPECTIVE Beyond Adelaide’s Olympic gloom
ISSUE 11.03
General Counsel Rare Opportunity in a National Organisation Our client is a national organisation with its head office in Adelaide. It is a leader in its field and delivers a range of dynamic projects and programs across Australia. It has extensive land-holdings and operates businesses in the tourism and pastoral sectors. A rare opportunity has now arisen for a highly skilled and professional lawyer to lead our client’s in-house legal section as General Counsel. The role is responsible for overseeing the client’s legal services and directly manages other solicitors and administrative support staff. The General Counsel is part of the senior management team, and reports directly to the Chief Executive Officer. The role will be well suited to a senior practitioner with a minimum of 5 years PAE in either a commercial law firm or a comparable in-house counsel role. The successful candidate should have worked extensively in commercial and property
Leader in its field
law. A background in administrative law, construction law, indigenous land rights law, employment law and intellectual property would also be highly regarded. The candidate should be able to deliver complex and strategic legal advice, have highly developed communication skills with a range of audiences, and have highly developed problem solving capabilities. The role involves participating in strategic and high profile projects, developing strong relationships and influencing cross-function teams and senior management throughout the organisation. An attractive salary package will be offered to the right candidate commensurate with qualifications and skills.
To have a confidential discussion or obtain a more detailed Position Description, please ring Doron Paluch or Paul Burgess on 03 8676 0302 (BH) or email a CV and cover letter to doron@bplr. com.au. Your CV will be confidentially provided to our client.
Asia and off-shore
BPL2665
Singapore Litigation Lawyer 5+ PAE Our client is a well known US firm with a global presence. Their emerging Asian offices are quickly building a strong reputation among major corporate clients. Of particular prominence is their expertise in product liability matters, where they assist and advise major manufacturers across broad sectors on complex product liability issues. The opportunity has opened in their Singapore office for a 5+ PAE lawyer who has first and foremost, strong litigation skills. While particular attention will be given to those applicants with specific product liability experience, the firm is willing to consider hands-on litigators who have experience litigating on complex and technically dense matters, such as engineering faults, construction claims, complex insurance matters and the like. Fluency with an Asian language, including Chinese, Korean or Japanese, will be highly considered. The successful applicant will be paid well, with support given for relocation. This is a great opportunity to locate your career within a strong and growing brand, offering excellent scope for career progression. For a confidential discussion, call Paul Garth on 03 8676 0342 or email a CV to paulg@bplr.com.au
www.bplr.com.au
Hong Kong Senior Associate - Employment
Join this leading global firm in a rare chance to take your honed skills into an off-shore market. Suitable to a senior and autonomous employment lawyer, at senior associate or special counsel level, this role represents a chance to take on a lead role in a growing and dynamic market. Like other Australians practicing in Hong Kong, you will be challenged and immersed in this role as you use both your personal and legal skills, and become a key contact for clients. The firm is only considering strong and confident lawyers who back themselves for this client facing position. The role offers some cross border work within Asia particularly, and the ability to create and grow relationships within other offices of this global juggernaut. It will offer sponsorship, relocation and a good salary. Language skills not required. To discuss this rare option, or for other options for employment lawyers nationally or globally, call Paul Burgess in confidence on 03 8676 0372 or email a CV to paul@bplr.com.au
Cayman Islands Corporate / Commercial or Funds 2-4 PAE Ever considered working in the Cayman Islands? Beautiful location with international quality work. This is a rare opportunity for an Australian lawyer to re-locate and work on corporate and/or finance/funds matters in a top international environment. Very large salary package and relocation assistance on offer and potential lucrative tax benefits. This is a new opportunity to work alongside an Australian qualified, down-to-earth partner (who was placed at this firm by Burgess Paluch Legal Recruitment). Together with his colleagues he seeks a lawyer with 2-4 years of post admission experience in transactional corporate and / or finance / funds work (You will need to have 3 years PAE by the time you hit the ground in the Caymans – which could be any time before October 2013). You will work on a wide range of legal issues while sustaining excellent working relationships with colleagues and clients. The work on offer is broad, interesting, and often high profile. You will enjoy getting to the core of issues being conscious of the effect your decisions may have on a business. Enjoy a unique quality of work / quality of life mix. For a confidential discussion, call Doron Paluch on 03 8676 0302 or email a CV to doron@bplr.com.au
CONTENTS
Australasian Legal Business ISSUE 11.03
36
1
“My assessment of the Adelaide profession is that there is likely to be a merger in the next six to eight months.” Adam Bannister, Minter Ellison
alb special report ALB IN-HOUSE COUNSEL ROUNDTABLE - PART TWO
This month the panel turns its sights on in-house careers, the independence of the in-house profession and the optimum structure for an in-house team.
36
cover story WOMEN IN LAW
16
Firms need to look beyond the obvious reforms if they are serious about achieving gender equality, Workplace Gender Equality Agency director Helen Conway tells ALB.
features SPECIAL PROFILE 24 A look at diversity and employee engagement at Dibbs Barker
TECHNOLOGY, MEDIA AND TELECOMMUNICATIONS
From NBN to the convergence reviews, TMT lawyers have never been busier – but has the workflow peaked?
44
ADELAIDE
Adelaide firms are happy to share their market perspective – just don’t mention that cancelled project.
AGRIBUSINESS Investors are queuing up to buy Australian assets – but are they on a fool’s errand?
26
54
regulars Deals
06
SPONSORED UPDATE
09
Buddle Findlay
League tableS
10
NEWS
12
APPOINTMENTS
14
ACLA
51
Australasian Legal Business ISSUE 11.03
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EDITORIAL PLUS... InSIDE tHE tECHnOLOgY, MEDIA & tELECOMMUnICAtIOnS StACK AUStRALASIAn LEgAL bUSInESS
AUSTRALASIAN
LEGAL BUSINESS
www.legalbusinessonline.com
ISSUE 11.03 APRIL 2013
APRIL 2013
WOMEn In LAW:
Renu Prasad Australasia Editor, Australasian Legal Business, Thomson Reuters
AUSTRALASIAN
LEGAL BUSINESS
ISSUE 11.03
E
arlier this year, a study conducted by Graduate Careers Australia found that there was a continuing discrepancy between the starting salaries of male and female law graduates to the tune of over $4,000. The media were quick to draw their conclusions. The problem, explained one commentator in the Sydney Morning Herald, was that corporate Australia was run by “a bunch of men” who hired people “who were like them.” The legal press helpfully extended this analysis to law firms and the Australian Law Students’ Association (ALSA) also clambered on board: “There is no discernible cause for this discrepancy [in salary], which suggests a fundamental lack of equality in the way female grads are valued at the commencement of their careers,” ALSA wrote in a position statement. ALSA went on to lament the “lack of transparency in starting salaries for males and females in the graduate recruitment process.” I must say I’ve never heard of the practice of reputable law firms using differential salaries for female graduates. I questioned Workplace Gender Equality Agency director Helen Conway on this topic and you can read her commentary in the Women in Law feature in this issue. Conway attributed the gender pay differential to a number of issues, most of which were significantly more subtle than overt sexism. The reasons for gender inequality in the legal profession run deep and relate, I suspect, much more to the way legal roles are designed rather than any discriminatory purpose. We need to look at these structural issues in legal practice and take a serious stance on reform, for the benefit of both men and women. To imply, as many media outlets have done, that firms have deliberate and systematic policies of discrimination is to introduce a red herring into the debate. The hallmark of both journalism and the legal profession is a dedication to dispassionate critical analysis. It’s time to apply that analysis to gender equality.
PLUS... INSIDE THE TECHNOLOGY, MEDIA & TELECOMMUNICATIONS STACK
ALL AT SEA ON GRADUATE SALARIES
Why firms must change SPECIAL REPORt: SOUtH AUStRALIAn PERSPECtIVE Beyond Adelaide’s Olympic gloom
6
deals
Australasian Legal Business ISSUE 11.03
your month at a glance Your month at a glance Deal
David Zwi, Thomsons Lawyers
A$462 million property Investa funds’ purchase/ develop 567 Collins St Melbourne
• The deal is conditional on signing up anchor tenants including Corrs Chambers Westgarth and Leighton Contractors.
Maria O’Brien, Baker & McKenzie
Value
Advisor
Client
Lead Lawyer
Griffin’s Bluewaters power stations sale
A$1 billion
Baker & McKenzie
Griffin Energy/ KordaMentha
Maria O’Brien, David Walter
Griffin’s Bluewaters power stations sale
A$1 billion
Clayton Utz
acquirers
Griffin’s Bluewaters power stations sale
A$1 billion
King & Wood Mallesons
Lenders’ syndicate
Jeff Clark,Jessica Chilton
TPG Capital acquisition of Ingham Group
A$880 million
Thomsons
Bob Ingham
David Zwi
TPG Capital acquisition of Ingham Group
A$880 million
Herbert Smith Freehills
TPG
Baden Furphy, Robert Nicholson
Lowy Family Group’s sale of interest in Westfield Retail Trust.
A$664 million
Clifford Chance
Lowy Family Group
Danny Simmons, Lance Sacks
Investa funds’ purchase/ develop 567 Collins St Melbourne
A$462 million
Norton Rose
Investa Commercial Property Fund and Investa Office Fund
Justin Lucas, Andrew Spalding
Citic stake acquisition in Alumina
A$452 million
Baker & McKenzie
Citic
Ashley Poke
Citic stake acquisition in Alumina
A$452 million
Allens
Alumina
Independence Group NAB facility
A$170 million
King & Wood Mallesons
Independence Group
Nathan Collins, Nicholas Creed
deals
Australasian Legal Business ISSUE 11.03
DEALS REPORTED TO ALB, march 2013. Is your firm missing from this table? Please assist ALB in making this table as complete as possible by notifying us of your firm’s involvement in deals by emailing renu.prasad@thomsonreuters.com. ALB will publish all deals in value order and all submitted deals will be published, space allowing.
Your month at a glance Deal
Value
Healthscope Group subordinated notes
A$150 million
Healthscope Group subordinated notes
Advisor
Client
Lead Lawyer
Herbert Smith Freehills
Healthscope Group
Tim McEwen
A$150 million
Clayton Utz
Joint lead managers
Brendan Groves
Haohua Energy investment in Coal of Africa
US$100 million
HWL Ebsworth
Haohua Energy
Jeremy McCarthy
Haohua Energy investment in Coal of Africa
US$100 million
Dacheng Law Offices
Haohua Energy
Haohua Energy investment in Coal of Africa
US$100 million
Corrs Chambers Westgarth
Coal of Africa
Jeremy Horwood, Sandy Mak
Inchcape acquisition of Trivett
GBP78 million
Minter Ellison
Inchcape
Matthew Hibbins, Peter George
Inchcape acquisition of Trivett
GBP78 million
Robinson Legal
Trivett
Julie Briscoe
Newmark fund St Kilda property acquisition
A$81 million
Hall & Wilcox
Newmark
Harry New
APN Property Group St Kilda property acquisition
A$28 million
Hall & Wilcox
APN Property
Tony Macvean
A$150 million debT Healthscope Group subordinated notes
• Herbert Smith Freehills has a long standing relationship with the Healthscope Group. The firm initially advised on the acquisition of the group by funds advised and managed by the Carlyle Group and TPG, as well as the original issue of Healthscope Notes in 2010.
Matthew Hibbins, Minter Ellison
Brendan Groves, Clayton Utz
7
8
deals
Australasian Legal Business ISSUE 11.03
your month at a glance DEALS REPORTED TO ALB, march 2013. Is your firm missing from this table? Please assist ALB in making this table as complete as possible by notifying us of your firm’s involvement in deals by emailing renu.prasad@thomsonreuters.com. ALB will publish all deals in value order and all submitted deals will be published, space allowing.
A$40 million m&A Catalyst acquisition of Reed Business Information Australia
• Reed Business Information’s stable of publications includes legal industry publication Lawyers Weekly.
Richard Hayes, King & Wood Mallesons
Your month at a glance Deal
Value
Advisor
Client
Lead Lawyer
Catalyst acquisition of Reed Business Information Australia
A$40 million
King & Wood Mallesons
Investec
Catalyst acquisition of Reed Business Information Australia
A$40 million
Herbert Smith Freehills
Reed Business Information
Catalyst acquisition of Reed Business Information Australia
A$40 million
Gilbert + Tobin
Catalyst
PetroChina acquisition of WA exploration assets from ConocoPhillips
Herbert Smith Freehills
PetroChina
Hilary Lau, Bruno Camarri
Sinochem - Monsanto herbicide agreement
Allens
Sinochem
Kate Axup
Richard Hayes
Firm Profile
NZ Commentary
Agoraphobic? RATIONALISING A FEAR OF OPEN SOURCE SOFTWARE For many CTOs, CEOs and in-house lawyers, the use of open source software (OSS) in their organisations has long been put in the too‑hard basket. The risks (real or perceived) of inadvertently tainting proprietary code with the fuzzy, permissive terms applying to OSS are not well understood by many people, and even fewer have been willing to tackle them head-on. The philosophy underlying OSS is that source code (usually jealously guarded and heavily protected as valuable IP) wants to be free. Early proponents of OSS tended to be inspired by concepts of freedom of property, and were inherently against the restrictive nature of intellectual property rights – a philosophy that didn’t blend well with Microsoft, Oracle and the other software giants as they rose to power in the 1980s. Today, the term ‘open source software’ generally means that the source code (i.e., the humanreadable portion of computer code) can be seen, modified and redistributed by the public without paying any royalties or licence fees – resulting in a continuing cycle of open and collaborative improvement for the benefit of society in general. There is a catch however. Despite a common misperception that OSS means ‘licence-free’, users of OSS are still subject to a software licence, just as users of proprietary, commercial software are. OSS licensors still use copyright law to control the behaviour of users; but rather than using it to curtail or restrict what a user might otherwise be able to do (i.e., copy or distribute software), they use the powers they have as copyright owners to ensure that the OSS remains ‘free’, and that users aren’t able to impose on it their own restrictions. The principal fear relating to using OSS arises from a concept known as ‘copyleft’ (as in the opposite of copyright), which arises in some – though not all – OSS licences. More pejoratively known as ‘viral’ licences, copyleft licences (the most well-known of which are the GPLv2 and its successor GPLv3) provide that the terms that apply to original OSS are inherited by any subsequent licensee of that software, or variations of it. In practice, this means that if an organisation wishes to redistribute software
which includes elements of OSS, then it may have to make available the source code to all of that software under the terms of that licence, including elements of the code which it might have thought were proprietary. This of course leads to a significant grey area – determining exactly when a “work is based on the [OSS] Program” (in the words of the GPLv2). Answering that question will require a detailed working knowledge of the code in question, and how the derivative work or adaptation came to be – but it is a question that only needs to be asked in relatively few circumstances. Copyleft provisions are only triggered if a licensee distributes the OSS – so if it is only ever used internally within an organisation, then those provisions shouldn’t cause any problems. The GPLv3 also clarifies that making software available as a software-as-a-service (SAAS) offering does not constitute ‘distribution’ of the software. The problem is that for many potential users, the relatively rare and avoidable effects of copyleft licences can distract from the obvious benefits that OSS can offer – zero licensing fees, reduced development costs, flexibility across software solutions and vendors and regularly (and freely) available fixes and updates through the collaborative OSS community. The majority of OSS licences (including the MIT, BSD 2.0 or Apache 2.0 licences) do not contain copyleft provisions – and for that reason, tend to apply to the most popular OSS products. There is also a huge amount of reputable, mature, and well supported OSS already in use by a large number of businesses (a 2011 Gartner survey put the figure at more than half of surveyed organisations) – including the Android and Linux operating systems, applications like Mozilla Firefox web browser, and server software like Apache or database software like MySQL. This doesn’t mean that problems can’t arise. Pre-acquisition due diligence of an organisation distributing software should ensure that any applicable OSS licences have been complied with, and – as would be the case with any other
software – confirm that the downstream licence rights granted by the target haven’t exceeded the rights it has been granted by the original licensor. It may also be worth investing in a code scanning service to verify the extent of any OSS in a target’s software product. For organisations considering procuring a solution that includes OSS, very little can be expected in the way of warranties, and a clear understanding of exactly which OSS licences apply will be needed. It may also put more pressure on contracted support services if something goes wrong, and some would argue that a supplier of OSS support services has less commercial incentive to get to the bottom of a problem than someone who has invested a lot of time and money in developing and marketing proprietary software. Regardless of an organisation’s own views on the open source philosophy, the reality is that the use of OSS is on the rise. The perceived risks may or may not be acceptable, but understanding those risks and setting down an organisation’s stance in a formal internal OSS policy can help to manage any issues before they arise, as well giving to potential investors or acquirers the same peace of mind given to in-house counsel.
This article was written by Allan Yeoman, Senior Associate in Buddle Findlay’s Information and Communication Technology practice. Allan can be contacted on +64 9 363 1029 or allan.yeoman@buddlefindlay.com
Allan Yeoman
Buddle Findlay
10
league tables
Australasian Legal Business ISSUE 11.03 Top M&A firms - Completed deals, full year 2012
Top M&A firms - Announced deals, full year 2012
1
NO.
1
King & Wood Mallesons
1,277.24
Deals: 11
Rank Legal Advisor
NO.
Value ($Mil)
Market Share: 17.5 Value ($Mil)
Mkt. Share
Deals
Gilbert + Tobin
2,951.68 Deals: 3
Value ($Mil)
Market Share: 36.9
Value Mkt. Deals ($Mil) Share
Rank Legal Advisor
2
Paul, Weiss
2,280.19
28.5
1
3
King & Wood Mallesons
1,201.84
15.0
9
4
Middletons Lawyers
1,150.02
14.4
2
5
Blake Cassels & Graydon
1,078.75
13.5
1
5*
Dorsey & Whitney LLP
1,078.75
13.5
1
5*
Gowling Lafleur Henderson LLP
1,078.75
13.5
1
5*
K&L Gates
1,078.75
13.5
1
5*
Squire Sanders LLP
1,078.75
13.5
1
1
5*
Lawson Lundell Lawson & McIntosh
1,078.75
13.5
1
2.3
3
11
Skadden
595.37
7.4
2
1.6
1
12
Herbert Smith Freehills
484.26
6.1
6
13
Ashurst
454.78
5.7
5
14
Minter Ellison
407.96
5.1
10
15
Norton Rose
380.46
4.8
7
16
Hardy Bowen Lawyers
235.48
2.9
2
17
Clayton Utz
157.17
2.0
3
18
Mayer Brown LLP
121.30
1.5
1
19
Davies Ward Phillips & Vineberg LLP
114.80
1.4
1
20
Johnson Winter & Slattery
105.88
1.3
2
21
Corrs Chambers Westgarth
103.99
1.3
7
22
Edward Nathan Sonnenbergs Inc
102.80
1.3
1
23
Hogan Lovells
90.80
1.1
1
24
Jones Day
73.50
0.9
1
25
Mattos Filho Veiga Filho Marrey Jr
71.27
0.9
1
Subtotal with Legal Advisor
6,631.69
82.9
61
Subtotal without Legal Advisor
1,372.02
17.1
142
Industry Total
8,003.71
100.0
203
2
Allens
1,258.38
17.2
7
3
Herbert Smith Freehills
491.50
6.7
11
4
Minter Ellison
437.70
6.0
10
5
Corrs Chambers Westgarth
277.70
3.8
2
6
HopgoodGanim
236.36
3.2
4
7
Steinepreis Paganin
231.14
3.2
8
Clayton Utz
171.25
9
Davies Ward Phillips & Vineberg LLP
114.80
10
Linklaters
66.63
0.9
1
11
Ashurst
26.73
0.4
4
12
Gilbert + Tobin
13.20
0.2
1
13
Veirano Advogados
12.53
0.2
1
14
Olswang
0.79
0.0
1
Subtotal with Legal Advisor
3,340.98
45.7
56
Subtotal without Legal Advisor
3,973.05
Industry Total
7,314.03
54.3
100.0
Based on Ranking Value inc. Net Debt of Target Source: Thomson Financial Date: 2013-03-13 09:44:06 EDT
205
261
(*tie) Based on Ranking Value inc. Net Debt of Target Source: Thomson Financial Date: 2013-03-13 09:17:42 EST
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Technology in practice
Q&A with
Damian Huon Damian Huon is a Legal Technology Strategist and CEO of Huon IT. With over 24 years supporting Australian law firms, Huon IT deliver business-wide outcomes with ‘everything technology’.
Balancing Tradition with Technology – IT Change in a Multigenerational Workforce
In today’s environment of mounting competition and globalisation, firms have to adapt quickly or be left behind – but are your staff keeping up? Here, seasoned strategist Damian Huon shares his tips on innovating while catering for the generational diversity in your firm.
Q1 How does each generation handle IT change differently?
These days we’ve got four generations working side by side – each with its own needs, attitudes and motivations. As an employer, you need to cater for this diversity – particularly when it comes to IT. In a Legal Careers Report (Kane 2013), these generational divides were classified as: • Traditionalists, who are nearing retirement age. Traditionalists are loyal and great team players, who tend to prefer face-to-face interaction where ever possible. • Baby Boomers are hard working, focused on achieving tangible targets, and are accustomed to long hours in the office. • Gen X like autonomy, and strive for freedom to set their own hours and achieve a work/life balance. • Gen Y/Millennials are a new breed altogether. While they also want flexibility, it comes in a very different form. They want to be connected 24x7 to the office through their phones, as they multi-task everything and are blurring traditional lines between personal and work time.
can my firm’s systems cater for such a wide range of Q2 How staff needs?
One size certainly doesn’t fit all. No longer a stand alone department, IT needs to transform into a flexible service for your staff. This notion of ‘IT as a Service’ comes hand in hand with The Cloud. Regardless of whether you build your own in-house cloud, or outsource to a provider’s hosted offering, it provides ultimate flexibility to your staff to use as they wish. While some habitual staff may opt to stick with the basics of a PC on a desk, other more tech-savvy staff will embrace flexibility to the fullest – including mobile devices and apps, collaboration tools such as video conferencing, and basically anything that will allow them to work ‘on the go’. To whatever degree, fluidity is key to ensure all staff can access the IT service they need.
can we ensure consistency and compliance Q3 How amongst this flexibility?
The IT ‘service’ you provide your staff still needs boundaries and strict security measures – which include formal policies and procedures. These not only outline what the firm will provide and how, but perhaps even more importantly, what your employee’s responsibilities are. A crucial element of this is providing the right training. Again, this needs to be tailored to the audience via flexible learning channels – while some may be happy to read about it online, others will respond better to a face to face session. There’s no longer a single one ‘right’ way to work. Create secure, flexible options - and let your staff choose. Email your questions to alb@huonit.com.au
Australasian Legal Business ISSUE 11.03
In case you missed it….. The month’s top headlines from www.legalbusinessonline.com
INDUSTRY M+K acquires Melbourne litigation practice M+K has announced the acquisition of the practice of commercial litigator Victoria Nomikos and her firm, A’Beckett Lawyers. Nomikos specialises in a wide range of dispute resolution areas including franchise disputes, debt recovery, intellectual property disputes and building and construction disputes. “When we started looking at A’Beckett Lawyers, we realised there were a number of synergies between the two firms from both an industry and client perspective. A’Beckett’s expertise bolsters our existing litigation practice and also enhances our commercial offering,” said M+K’s National Managing Director, Damian Paul.
PROFIT SHARING Firm allocates equity to all solicitors, support staff Argyle Lawyers, a member firm of listed entity Integrated Legal Holdings, has announced that all staff will receive equity shares in parent company ILH Limited. This arrangement covers nonprincipal staff of all seniority and across all roles, such as support staff and solicitors. Shares will be allotted with full and immediate vesting rights. This is not a one-off allocation, but a continuing profit sharing scheme which will see a prescribed percentage of the firm’s profits allocated to staff in the form of ILH shares each year. Managing principal Peter Bobbin told ALB that no decision had yet been made as to whether these shares would take the form of a fresh issue, or via an acquisition of pre-existing shares. Practice director Janice Duncan said the firm was motivated by the desire to attract and retain talent. “Our shareholder trust and client confidence in Argyle’s services is directly dependent on employing the best people in their field. Our business plan has been to create an intelligent and collegiate environment; the time is now right to reward all staff with a part of the equity that they help create,” she said. From April 2013, Argyle Lawyers will be known as Rockwell Olivier in line with a move to adopt standard branding across the ILH group.
LISTED FIRMS Slaters posts 47 percent revenue growth; NPAT up 61 percent Listed firm Slater & Gordon has revealed its half year results for FY2013. Total revenues are up 46.5 percent to A$145.7 million and NPAT is up 61.3 percent to $19.1 million. Interim dividend is up 10 percent to 2.75 cents per share fully franked.
news
Australasian Legal Business ISSUE 11.03
The company predicted that it would meet full year guidance and said that the UK expansion was “progressing well.” UK results were in line with the firm’s expectations, delivering $34.3 million in revenue and NPAT of $3.5 million. Total group revenue guidance for FY2013 remains at $290 million with the EBITDA margin expected to be in 24-25 percent range. “Our business is in good shape, we have strong prospects for further profitable growth and we have the resources and the people to be able to deliver it,” said managing director Andrew Grech.
Integrated Legal Holdings posts flat revenues, profit Listed firm Integrated Legal Holdings has revealed its half year results for FY2013. The group earned revenues of A$16,265,542, which represents a flat trajectory from the same period last year. Net profit after tax was A$414,362, which represented a 57 percent drop on the same period last year. However, the group also noted that the movement in profit would have only been a one percent decline but for a “movement in fair value of financial liabilities [representing] a non-cash and one-off accounting adjustment arising from an acquisition transaction in 2011, being a deferred consideration liability which ultimately was not payable.” During this period, ILH acquired a 49 percent stake in Melbourne firm Rockwell Bates and introduced consistent national branding (“Rockwell Olivier”) across the group.
LITIGATION Slaters takes bank fees class action to NZ Slater & Gordon has announced plans for a class action on behalf of bank customers in New Zealand who are said to have been overcharged up to $1 billion (NZD) in bank fees. The proceedings are based on similar grounds to those raised in Australia, where a test case against the ANZ bank is pending in the Federal Court. Slater & Gordon is working with Auckland lawyer Andrew Hooker, who will lead the action and litigation funder Litigation Lending Services (NZ). The firm is calling for registrations from interested litigants.
PRIVATE EQUITY Firms help PE buy Lawyers’ Weekly A stable of B2B publications including the legal industry’s Lawyers’ Weekly have been acquired by private equity firm Catalyst with the guidance of Herbert Smith Freehills, KWM and Gilbert + Tobin. The publications are part of Reed Business Information Australia, one of the largest B2B media companies in Australia. This transaction sees Catalyst acquire RBIA for a reported A$40 million. Investec provided Catalyst with debt financing to fund the acquisition and ongoing working capital requirements. Legal advisors on this deal were King & Wood Mallesons (advising Investec), Herbert Smith Freehills (advising RBI) and Gilbert + Tobin (advising Catalyst). Prior to being moved into the RBIA suite of publications in 2011, Lawyers Weekly was published by LexisNexis. Both RBI and LexisNexis are owned by global publishing giant Reed Elsevier.
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In-house Q&A Peter Elliott General Counsel / Company Secretary
Presented by
Fitness First Australia Pty Limited
your opinion, why have in-house lawyers become an 1 Inincreasingly indispensable part of an organisation? The developing legal and regulatory landscape faced by businesses has led to a greatly increased compliance burden. Good corporate governance has become more important for businesses as they seek to manage legal as well as reputational risk in a business environment which is becoming increasingly competitive. In-house lawyers are uniquely placed to assist businesses to balance commercial outcomes with compliance risk given the depth of their knowledge of the business gained through regular interaction with stakeholders combined with their ability to view issues from a global as well as a legal perspective. recent times, the role of the General Counsel has 2 Indiversified into a multi-faceted role, (where the General
Counsel can wear the ‘hat’ of Lawyer, Legal Manager, Compliance Manager, and Company Secretary). In your opinion, do you believe this has increased your risk profile?
I think that there is no question that the risk profile of General Counsel has increased, especially in the light of decisions such as that handed down in the James Hardie case. General Counsel are no longer simply lawyers advising the business. Their skill set and experience mean that they are often the logical choice to take on the additional responsibilities of compliance manager and company secretary. This widening of responsibility inevitably brings with it a higher risk profile as General Counsel are challenged both regarding the skills required to properly discharge these additional offices and the time constraints which they face. It is incumbent upon them to ensure that the appropriate resources are available and that they are able to devote sufficient time to their traditional role as well as these additional areas of responsibility. your opinion, what do you consider to be the main 3 Inchallenges you and your team will face in 2013? I think that the economic climate currently facing all businesses will present the greatest challenge in 2013. In-house teams are being asked to do more with less and Fitness First is no exception. Therefore the main challenge for me will be to deal with all issues as they arise utilising a smaller team and to ensure that legal/compliance risk can be appropriately managed whilst maintaining commercial outcomes. JLegal is a global specialist legal recruitment consultancy focused solely on providing recruitment solutions to the legal profession. For a confidential discussion about your career, contact one of our senior consultants today.
www.jlegal.com Melbourne t | +61 3 8102 1900 Sydney t | +61 2 8249 4730
aPPOINTMENTS Lateral partner appointments Name
Practice area
Coming from
Going to
Andrew Cameron
Litigation
(bar)
Gadens
Byron Koster
M&A
Corrs Chambers Westgarth
Johnson Winter & Slattery
Deborah Bean
Banking & finance
Gadens
K&L Gates
Grant Scott-Hayward
Firm management
Lander & Rogers
Gadens
Iain Laughland
Corporate
Corrs Chambers Westgarth
Norton Rose
James Rozsa
M&A
Corrs Chambers Westgarth
Johnson Winter & Slattery
Jeremy Davis
M&A
Corrs Chambers Westgarth
Johnson Winter & Slattery
Jeremy Rosenthal
Corporate
Norton Gledhill
SBA Law
John Hutchinson
Financial services
DLA Piper
Hall & Wilcox
John Kettle
Competition
Mason Hayes & Curran
McCullough Robertson
Jonathan Stafford
Construction
Clayton Utz
Colin Biggers & Paisley
Paul King
Tax
Greenwoods & Freehills
Minter Ellison
Richard Horton
Technology
DLA Piper
Squire Sanders
Richard Lewis
Corporate
Corrs Chambers Westgarth
Norton Rose
Sam Cottell
Corporate
Clayton Utz
Rockwell Bates
Shayne Thompson
Insurance
K&L Gates
Moray & Agnew
Steve Johns
Corporate
Corrs Chambers Westgarth
Norton Rose
Terry Brigden
Financial services
Herbert Smith Freehills
Lander & Rogers
Tim Castle
Insolvency
Gilbert + Tobin
Sparke Helmore
Tony Rein
Gaming/ entertainment
Clayton Utz
Thomsons
Tony Macafee
Financial services
DLA Piper
Hall & Wilcox
Landers COO moves to Gadens Former Lander & Rogers COO Grant ScottHayward has made the move into the CEO role at Gadens Melbourne and has flagged “happiness” as one of his key priorities. “Our firm is already high performing in a number of areas and everyone works extremely hard for our clients, but I believe there’s real potential here to make it a stand-out success when it comes to happiness combined with top performance,” he said. At the same time, the firm announced three new Melbourne partner appointments: Annette Gaber (dispute resolution), Kirsten Ganley (insolvency) and Ivan Hristovski (corporate). Three more partners depart Corrs; JWS quietly builds Corrs Chambers Westgarth M&A partners Jeremy Davis, Byron Koster and James Rozsa have been poached by Johnson Winter & Slattery. This development follows the news that Corrs partners Richard Lewis, Iain Laughland and Steve Johns have opted to join Norton Rose. The new recruits will bolster the cross-border capabilities at JWS, with managing partner Peter Slattery hinting in an interview with the Wall
Street Journal that the firm will pursue a strategy of relationships with off-shore firms rather than an outright merger. The firm has stated that no start date for the new recruits has yet been decided.
Hall & Wilcox boosts property funds practice with DLA hires Hall & Wilcox has announced the appointment of partners John Hutchinson and Tony Macafee from DLA Piper. Both lawyers have a particular focus on the property funds sector and, prior to DLA, Hutchinson’s roles included general counsel at Centro Properties Group and corporate partner at Freehills, whilst Macafee was previously general counsel (funds management) at Becton Property Group. “The appointment of John and Tony means that Hall & Wilcox now undoubtedly has one of Australia’s leading property funds practices,” said Hall & Wilcox managing partner Tony Macvean.
Norton Rose appoints Australian partner as global chairman Norton Rose has announced that Australian
chairman Adrian Ahern will also become global chairman, effective from 1 May 2013. Ahern, who is based in Sydney and leads the financial institutions industry sector team in the Asia Pacific, takes over from Norman Steinberg, whose term as global chairman expires by rotation in April. Steinberg will continue as chairman of Norton Rose in Canada and will be a co-chairman of Norton Rose globally.
Herbert Geer promotes Hawkes to partnership Herbert Geer has announced that Peter Hawkes has been promoted to partner in the Sydney office. Hawkes is a multi-disciplinary lawyer specialising in clean energy projects and carbon law. He commenced with the firm in April 2010 as special counsel and has over 14 years of professional legal experience in Australia and the UK.
Moray & Agnew adds new partner in Sydney Moray & Agnew has appointed a new partner in its Sydney office. Shayne Thompson, formerly
aPPOINTMENTS an insurance partner at Middletons (now K&L Gates), has joined the firm and brings with him over 20 years experience in advising clients in the insurance industry. Thompson has acted for major local and international insurers, including a number of American insurers and the London insurance market. He is known for his expertise in insurance litigation, particularly professional indemnity and directors’ and officers’ liability insurance.
Ashurst stalwart joins DLA Piper DLA Piper has announced that Elizabeth Johnstone has joined the firm as a senior consultant and will focus on a portfolio of strategic client and business development initiatives. Johnstone, who spent over 20 years at her previous firm Blake Dawson/Ashurst, will be working closely with senior executives including Tony Holland, who was recently appointed chairman of the Australian partners and Asia Pacific head of banking & finance, and incoming Australia managing partner Andrew Darwin.
Clutz construction expert joins CBP Construction lawyer Jonathan Stafford has joined Colin Biggers & Paisley. Formerly with Jonathan Clayton Utz, Stafford brings Stafford with him extensive experience in infrastructure projects including roads, rail, ports and telecommunications.
Squire Sanders mines Silicon Valley, DLA for talent Squire Sanders has announced the arrival of corporate and technology partner, Richard Horton, who has joined the firm from DLA Piper in the U.S. Horton will be resident in both the Sydney and Silicon Valley offices and his arrival coincides with Squire Sanders’ move to new permanent premises in Sydney, located in the Gateway building. Horton is an experienced, dual-qualified U.S. and Australian attorney. His clients have included Yahoo!, Boeing Energy, Cisco, Kmart and Telstra.
Landers makes another financial services hire from Freehills Lander & Rogers has announced that it has appointed financial Terry Brigden services lawyer Terry Brigden, to build the firm’s financial services offering in the Sydney market. Brigden, who joins the firm’s Sydney office as a consultant, was previously at Freehills. This appointment follows the recruitment of Natalie Gullifer and Peggy Haines, also formerly of the Freehills financial services team, in 2011.
Minters adds Greenwoods tax specialist Minter Ellison has announced the appointment of Paul King as senior tax counsel. Based in the Sydney office, King joins from Greenwoods & Freehills, where he had been a director since 1988.
McCullough Robertson recruits from Irish firm McCullough Robertson has announced the appointment of John Kettle as a partner. Joining the firm as a competition, utilities and privatisation specialist, Kettle will also chair the firm’s International Group. Kettle has relocated with his family to Australia from London where he established and ran the London office of a major Irish corporate law firm, Mason Hayes & Curran.
Jeremy Rosenthal joins SBA Law Corporate boutique firm SBA Law has announced that Jeremy Rosenthal has joined the firm’s corporate and commercial law practice as a principal. Rosenthal joins the firm from Norton Gledhill where he was a principal for five years. Rosenthal is an experienced transactional and corporate lawyer who is known for his expertise in the agricultural sector.
Gadens Melbourne welcomes new commercial litigation partner Gadens Melbourne has strengthened its commercial litigation group with the appointment of Andrew Cameron as a new partner. Prior to joining Gadens, Cameron practised as a barrister at the Victorian Bar and was senior legal adviser to the Premier of Victoria. He is an experienced commercial litigation lawyer who has acted for a diverse range of clients, including publicly listed corporations, Commonwealth and State governments and high profile individuals.
Corrs corporate trio heads to Norton Rose Norton Rose has announced the appointment of Richard Lewis, Iain Laughland and Steve Johns as corporate partners from Corrs Chambers Westgarth in Sydney. This is a significant movement. Richard Lewis was head of Corrs’ corporate advisory practice in Sydney and is recognised as an accomplished M&A and private equity advisor. Iain Laughland has broad equity capital markets experience and advises issuers, underwriters and lead managers in relation to IPOs, share subscriptions, rights issues and institutional placements, including a number of multi-jurisdictional placements. Steve Johns specialises in privately negotiated transactions, with a focus on private equity and hedge funds, undertaking leveraged buyouts,
management buyouts, expansion capital and public to private transactions. Norton Rose has also bolstered its corporate practice with the return of key partners from offshore. Partners Michael Joyce, Ross Ramsay, Shaun McRobert and Michael Wilton have all returned home after a stint in various Asia offices of the firm.
Sparke captures G+T’s Castle Sparke Helmore has announced the appointment of Tim Castle as a partner in the commercial & projects group in Sydney. Castle practises in the areas of insolvency and restructuring and commercial litigation, advising financial institutions, insolvency practitioners, creditors and directors on all aspects of corporate insolvency. Before joining Sparke Helmore, Castle was a partner at Gilbert + Tobin and previously practised with Freehills.
Construction: Minters announces new practice group heads Minter Ellison has named Pamela Jack as the new head of the firm’s Pamela construction practice and Andrew Jack Rentoul as the new infrastructure group leader. Both roles were previously held by Brisbanebased Ian Briggs, who has taken 12 months’ leave from the firm to work with a major client. Partner Andrew Julie Whitehead has been leading Rentoul the construction team in Brisbane for the past year and will continue in that role.
K&L Gates plucks Bean from Gadens The Brisbane office of K&L Gates has added Deborah Bean as a partner in the finance practice. Bean joins the firm from Gadens Lawyers. Bean has spent more than 20 years advising the top four banks and other financial institutions on challenging institutional and property banking transactions. She has significant experience in large commercial construction projects, agribusiness, retirement and aged care, pharmacy, and energy and resources.
Ashurst appoints Australian as new Asia managing partner Ashurst has announced that Blake Dawson alumnus Matthew Bubb has been appointed as managing partner of Asia, with effect from 1 May. Bubb started his career with Blakes in 1999 and was with the firm for five years before joining Ashurst LLP. A partner since 2006, he has also held the role of managing partner of the Singapore office and is recognised as a leading practitioner in the development and financing of projects in the energy and infrastructure sectors.
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BEYOND THE LOW HANGING FRUIT Law firms have made significant strides in the interests of gender equality, but Workplace Gender Equality Agency director Helen Conway says that deeper structural reforms are needed. She explains why to ALB’s Renu Prasad.
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H
elen Conway’s Workplace Gender Equality Agency prefers to be known as a “light touch” regulator. The Agency, explains Conway, does not exist to bludgeon employers into submission – it exists to work collaboratively with them on gender equality issues. The touch might be light, but one gets the impression that Conway does not suffer fools lightly. Talk with her for any length of time and you’ll soon see where she attributes much of the responsibility for gender inequality in corporate Australia: intellectual laziness. Inertia. A culture where businesses operate in a particular way because that’s the way things have always been done. Take flexible job design, for example: “Many jobs are designed on the basis that they’re full time jobs and can be done no other way,” says Conway. “Well that’s just a heap of rubbish. It’s happened that way because people are too lazy to think about how jobs can be done.” A former Caltex GC and Blake Dawson partner, Conway has a particular interest in the legal profession. Having worked extensively with firms, she sees plenty of evidence of a willingness to embrace the issue of gender equality. However, good intentions only go so far. The next step, she says, is for firms to look into the deeper structural reforms necessary for a truly inclusive workplace.
The slow road When asked to give an account of the legal industry’s performance in gender equality, Conway points to one of the profession’s best known indicators: the number of women partners in private practice. It is well established that the growing ranks of female law graduates of previous decades has not fully translated into an even representation of women in the partnership ranks. The higher performing firms have achieved around a third female representation, while the bulk of the corporate firms straggle between about 15 percent to 25 percent. “It is very disappointing to see women who do so well at [senior associate] level but don’t translate that achievement into a sustainable partnership opportunity,” says Conway. “Some might get to partnership but then they drop out.” The raw statistics may actually understate the position because they relate to overall partner numbers and not equity partners. It appears that a number of firms have promoted lawyers to partnership without granting equity. This is a practice which affects both women and men and occurs for a number of reasons – for example, preserving profitability for existing partners or providing some kind of recognition where the firm cannot afford to make a new equity partner. The result, however, is that we need to view the statistics for female participation in equity partnership to get the complete picture. A survey conducted by Beaton Consulting in mid 2012 provides these statistics and demonstrates that the raw figures are indeed
“Many jobs are designed on the basis that they’re full time jobs and can be done no other way... Well that’s just a heap of rubbish. It’s happened that way because people are too lazy to think about how jobs can be done.” Helen Conway, Workplace Gender Equality Agency
Australasian Legal Business ISSUE 11.03
misleading in many instances. One midtier firm which had a 24 percent female partnership only had 10.5 percent female equity partners. Another UK based firm had 21.5 percent female partners, but only 10.6 percent female equity partners. There were three well known mid-size firms which had over 15 percent female partnerships but zero female equity partners. “If you break it down by equity and non equity partners, it is interesting to see how few women are equity partners and you wonder whether there’s some reservation about whether women are worthy of the position or serious about the role and hence not offered equity partnership,” says Conway. “Women aren’t making it in appropriate numbers to partnership and what’s worse they’re not making it to equity. The power in the legal profession is about whether you’re partner but then the distinction in the ranks is between equity and non equity and the ones who are equity partners are getting the big draws.” Still, Conway does not go so far as to assert that there is widespread discrimination of an overt nature in law firms. When asked to explain the underrepresentation of women at senior levels, she points to a far more subtle issue: flexible work and careers. “Until organisations, whether they be law firms or corporates, come to grips with the impact of family on workplaces, we’re not going to resolve this issue,” she says. Paradoxically, this is not uniquely a gender issue. “Part time or flexible work is presented as a solution to a woman’s problem but actually it’s not a solution to a woman’s problem - this is a family issue on how to balance lives,” says Conway. “So both men and women should be able to work flexibly and they should have flexible careers.” 24/7 culture Long hours, billable targets and a culture of providing a “24/7” service to the client are all typical elements of the culture of a large corporate law firm. While there’s often a heroic element to the lawyer who has pulled an “all nighter” to meet the demands of the client, privately many lawyers, both male and female, are shaking their heads at this state of affairs. “No other profession does it,” one senior lawyer told ALB. “If I rang my heart specialist at 8pm and told him I wanted to see him straightaway, he’d tell me to ring back
women in law
Australasian Legal Business ISSUE 11.03
tomorrow and make an appointment for next month. So why are we here all night?” Conway is particularly scathing of the 24/7 culture and says that it is attributable to profit-conscious firms pandering to a perceived client demand for round the clock service. She’s not convinced that this perception is actually correct. “Law firms believe that [being available 24/7] might make them more attractive to their clients than their competitors,” she says. “They make an assumption about what clients want, but they haven’t had a conversation with the client as to whether the 24/7 service is actually necessary. There are many clients who are well ahead of law firms in terms of introducing flexible work practices. For example, you might be able to reach an agreement with Telstra or Commonwealth Bank that 24/7 is not necessary. They are organisations with good performance in flexible work practices, so why wouldn’t they want their suppliers to mirror that?” Clearly the client needs to have protocols to prevent individuals making unreasonable demands on law firms, a point which Conway readily concedes. “This is all about discipline in the supplier relationship,” she states. “If somebody within the company is not acting within the terms of the supplier relationship, that needs to be dealt with. This is about changing cultures in both the law firm and in the corporates and workplaces generally. We need to work just a little harder to change this.” Perhaps the change could start at the client level. “I’ve been on both sides of the procurement exercise,” says Conway.
“The business will come to you and say they need this done tomorrow. And you will ask why do you need this tomorrow? And sometimes they need it tomorrow because it’s been on their desk for three months and they’ve done nothing about it and suddenly they’re getting a kick in the rear end and they’ve decided to get the lawyer to do it over night; they can work all night.” Helen Conway
Leading the way with flexible careers for women in law. At Jackson McDonald we are committed to supporting our staff to achieve their personal and professional goals. As Western Australia’s leading independent law firm we know that through flexibility we retain highly regarded lawyers who are pivotal in meeting the needs of our clients. That’s why we’re one of the leading law firms for flexible working arrangements and have one of the highest percentages of female fee earners. Want a leading career in law? Contact us to find out more.
Joanne Alilovic, Senior Associate – Workplace Relations
t +61 8 9426 6611 f +61 8 9321 2002 e hr@jacmac.com.au a Level 25, 140 St Georges Terrace, Perth, Western Australia 6000
w ww . j ac mac ca r e e r s . c o m . a u
2012
WINNER
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“When I was in a corporate, procuring legal services, in my tender document I wanted specific things from law firms – for example, from a culture point of view. We would examine very closely what the value set of law firms was. You can prescribe all sorts of things in a tender document.” But the bigger cultural change relates to the work practices within the client organisation. With a bluntness which will make many private practice lawyers smile, Conway says that GCs simply need to organise themselves better. “GCs would love to have everyone on tap [24/7] because they don’t want to organise themselves to work between Monday and Friday particularly and within regulation hours,” she says. “GCs should organise themselves a bit better - I was a GC for a long time and it’s not hard to organise yourself. There are circumstances where things might come up urgently but I do think you can organise things properly.” However, Conway adds that often the problem has its genesis in other parts of the business. “The business will come to you and say they need this done tomorrow. And you will ask why do you need this tomorrow? And sometimes they need it tomorrow because it’s been on their desk for three months and they’ve done nothing about it and suddenly they’re getting a kick in the rear end and they’ve decided to get the lawyer to do it over night; they can work all night.” Time based billing is another practice which is commonly blamed for a variety of law firm ailments ranging from depression through to a general lack of diversity. Could it be keeping women away from senior legal practice? “I’m not sure there’s a connection,” says Conway. “There are a whole lot of issues around time based billing of course, but I think it’s more an issue that lawyers need to be present in the workplace rather than [the fact of ] time based billing, because you can still work at home and record your time. I think the issue is more that you need to be present and available in the office 24/7 - I think that’s a bigger issue and I think that’s an organisational culture issue.” One area which looms large in the 24/7 mentality is the transactional space and Conway admits to not having all the solutions for this area. “I do believe in some areas of law firms, some flexible work practices are tough,” she says. “So for transactional work and M&A, it’s tough, really intense work for a couple of
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Proportion of female partners, by firm - July 2012 FIRM
Total Female Women number of partners as a % of partners partners Gilbert + Tobin 66 24 36.3 TressCox 35 11 31.8 Lander & Rogers 53 17 31.1 Holding Redlich 58 17 28.7 Hall & Wilcox 33 9 28.3 Henry Davis York 53 15 28.1 Ashurst Australia 188 47 25 Hopgoodganim Lawyers 26 6 24.2 Maddocks 63 15 24.1 King & Wood Mallesons 156 37 23.6 Herbert Smith Freehills 191 44 23.3 Griffith Hack 33 8 23.3 Hunt & Hunt 59 14 23.2 Norton Rose 143 31 21.5 Gadens 135 29 21.4 DLA Piper 111 23 20.9 Minter Ellison Legal Group 285 59 20.6 Jackson McDonald 28 6 19.9 Clayton Utz 198 39 19.8 Corrs Chambers Westgarth 122 24 19.4 Kennedy Strang Legal Group 68 13 19.1 Piper Alderman 52 10 19 Sparke Helmore 53 10 18.6 Moray & Agnew 65 12 18.5 Arnold Bloch Leibler 38 7 18.4 Curwoods Lawyers 11 2 18.2 HWL Ebsworth 146 26 17.8 Middletons 67 11 17 Herbert Geer 42 7 16.9 Squire Sanders Australia 12 2 16.7 Allens Arthur Robinson 176 29 16.2 Colin Biggers & Paisley 36 6 15.7 Wotton & Kearney 13 2 15.4 Baker & McKenzie 91 14 15.3 Cooper Grace & Ward 23 3 14.5 M+K Lawyers 53 8 14.2 McCullough Robertson 50 7 14 Dibbs Barker 45 6 13.3 Thomsons Lawyers 58 7 12.1 Mills Oakley Lawyers 36 4 11.1 Lavan Legal 21 2 9.5 Source: Beaton Consulting/ News Ltd
Nominations now open!
10 year anniversary of the ALB Australasian Law Awards Thursday 30 May 2013, Sydney Town Hall The ALB Australasian Law Awards is the highlight of the legal industry calendar and provides a spectacular evening of celebration, networking and entertainment. The night is dedicated to recognising and rewarding the achievements and excellence of legal teams and individuals across Australiasia. Come and celebrate our landmark year at this prestigious event.
For all enquiries including sponsorship opportunities, please contact Paul Ferris on 02 8587 7114 or paul.ferris@thomsonreuters.com or Peter Ratcliff on 02 8587 7543 or peter.ratcliff@thomsonreuters.com
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“I don’t think much of [the discrimination] in firms is overt. Firms are trying to come to grips with gender and I think there are very genuine efforts being made.” Helen Conway, Workplace Gender Equality Agency months and that’s hard. But in most areas in law firms you could have flexible work practices.” Low hanging fruit Firms have made rather slow progress in improving the rate of female participation at senior levels, a situation which has led some cynics to question their bona fides in this regard. Conway offers an alternative explanation: firms have made the easy reforms – for example, generous paid parental leave offerings – and are now struggling with understanding what to do next. “I once said to a firm, the trouble is you’ve taken all the low hanging fruit,” recalls Conway. “You now need to dig deep into your culture to make necessary changes to the organisation to get to a better gender performance position. And they said that will cost money. But you tell me a business initiative that doesn’t cost money.” What are these deep cultural reforms? We have already touched on one example – moving away from a 24/7 culture. Conway says another example is the entrenched belief that legal practice can only occur on a full time basis. She says that belief is entirely misconceived. “If you looked at most jobs, most would be amenable to some sort of flexible work, but that’s hard yakka,” she observes. This failure to design jobs appropriately can have two consequences for women returning from parental leave. The first potential consequence is that the role is never properly adjusted to account for the part time aspect. “If someone is working full time and goes part time… when they come back, the job needs to be changed - you can’t ask someone to do a full time load on a part
Australasian Legal Business ISSUE 11.03
time slot,” says Conway. “I think that’s quite an abusive thing to not really honour a part time work agreement in substance.” The other extremity is that a returning employee may be underutilised or given poor quality work, an outcome which Conway says not only sells the lawyer short, but also the firm – particularly if the lawyer becomes discouraged and decides against returning to work. “Firms invest a lot of money in lawyers – they should want a return on that investment,” she says. “Well if women don’t come back from maternity leave, you don’t get any ongoing return on that investment. If you have a woman with a high level of expertise and client attractability, you can maintain that if you structure things properly. But that requires lawyers to have a longer term view of return on investment – not the short term view about preserving the profit draw for that year.” The common thread running through all of this is appropriate job design: ensuring that lawyer roles are designed in a way that promotes rather than inhibits flexibility. One example of this could be a job share arrangement, whereby a single role is performed by two part time lawyers, thereby providing an interrupted service to the client and avoiding the danger of a part time role “spilling over” into a lawyer’s day off. Such arrangements have been trialled at firms such as Clayton Utz, which has been favourably mentioned as a firm with progressive thinking in this space. Still, Conway says there is room for improvement. “So at Clayton Utz there was an example last year of two lawyers sharing,” she says. “But it was interesting that it was those women who worked it out and they took the proposal to the firm instead of the firm proactively managing and thinking innovatively about how they can do things.” Still, the story does demonstrate that change can be initiated at the employee level. “It’s a lesson for people not to accept the status quo – they were innovative and they formulated something and went to management,” says Conway. “And if people go in with a good business case, it’s hard for people to say no. If they said no to piloting it, it would seem very unreasonable. I’ve had stories where people have gone to management with a job share proposal and management are sceptical and do it as a bit of a pilot but then it works out. Well, organisations need to be more proactive in doing that and not waiting for the
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“It is very disappointing to see women who do so well at [senior associate] level but don’t translate that achievement into a sustainable partnership opportunity.” Helen Conway, Workplace Gender Equality Agency
employees to go cap in hand and telling them this is what we want to do.” Graduate salaries Earlier this year, Graduate Careers Australia published a survey which found a widening pay gap between male law graduates and their female colleagues. Males were found to earn, on average, $4,300 more than women a year. Judging from the media coverage which ensued, it appears that some journalists drew the conclusion that most law firms routinely pay female graduates less than males. It’s not an inference which Conway says automatically follows from these stats: “If you look at the large firms, they’re paying men and women graduates equally. You might find some differential practices if you went to a country law firm, for example – but the good performers and the national law firms are unlikely to pay differential salaries. But I think the size and geography of the firm can impact the stats.”
The point which Conway says might be obscured by the data is that there may be a higher proportion of men in the areas of law which are better remunerated – for example, corporate law – and there may be a higher proportion of women in less well remunerated areas – for example, government practice. “The data is a bit blunt and can be misleading,” she says. “If you aggregate it all up there is a pay gap between men and women graduates. Some people call it a gender pay gap, some would say it’s not all attributable to gender. If you take into account things like different areas of law, private sector versus public sector, you might find there are some factors that explain it and really they’re not truly gender based factors. So it’s a blunt piece of data and contentious and we’re a bit concerned about that and we’re looking to see how we might better communicate that pay gap going forward.” Ultimately, Conway says that her perception is that firms are approaching this issue with the right intentions. “I don’t think much of [the discrimination] in firms is overt,” she says. “Firms are trying to come to grips with gender and I think there are very genuine efforts being made. These are people who accept the business case that gender diversity is good; in an emotionally sense they accept it, but they struggle to actualise it in their workplaces. That’s what this agency is all about – we’re here to help people actually do things.”
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women in law
daring
to be
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“Rather than trying to be everything to everybody, we have identified key industries in which we are well placed to deliver exceptional insight and value to our clients.”
dibbsbarker Strong employee engagement and flexible work arrangements are just part of the recipe for a more diverse, inclusive workplace. Two senior women from DibbsBarker, partner Lis Boyce and people & development manager Odile Shepherd, share their experiences.
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n 2012, DibbsBarker achieved over 80 percent participation in its annual employee opinion survey DibbsVIEW, and 99 percent of the respondents rated the firm as a good place to work. It also increased both partner and special counsel numbers in an environment where many firms have gone backwards. In terms of gender balance at senior levels, across the firm’s Brisbane and Sydney offices, the ratio of male to female senior associates and special counsel on 1 January 2013 was 50:50, a dramatic improvement on 60:40 two years ago. The firm also appointed and promoted 26 people to associate, senior associate and special counsel roles between January and December 2012, and 65 percent of these were women. Gender balance at partner level has improved more slowly, but it has still gone from 12 percent on 1 January 2010 to 18 percent three years later. Two of the women leading DibbsBarker are Lis Boyce, a partner and newly appointed board member, and Odile Shepherd, the firm’s People & Development Manager. They describe the firm as an organisation that is open, clear on its strategy and direction, very
supportive of its people, and always willing to try new approaches. Lis Boyce has been with DibbsBarker for nearly 25 years. She has ‘grown up’ with the firm and heads an industry-leading life sciences practice that now boasts half of the Certified Licensing Professionals in private practice in Australia. She is also highly regarded for her corporate governance and board advisory work, and she has just joined the firm’s own board. Lis believes DibbsBarker’s success stems from two primary factors – a clear focus on selected industries and investment in relationships. “Rather than trying to be everything to everybody, we have identified key industries in which we are well placed to deliver exceptional insight and value to our clients. We advise the leaders in those industries and we invest in broad industry participation and engagement. We also invest heavily in our relationships, both with our clients and with each other.” Lis was a DibbsBarker partner when her son was born. She says colleagues stepped in to help manage her practice while she took time off. Lis returned to practice on an 80 percent fee budget that is still in place. Lis is one of a number of the firm’s senior women who work flexibly i.e. part-time, remotely, or in a job-share arrangement. However, flexible working arrangements are not confined to women. DibbsBarker provides males and females the same progression opportunities and access to professional development, remuneration and flexibility – at all levels. “The firm has invested in me as it has in many others. At partner level both men and women have had flexible arrangements to allow for study and family needs or transition in the latter part of their career. Throughout the firm, we have
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supported people in a variety of ways to allow them to fulfil commitments to faith, charity and pro bono work, sport and study. This attitude applies from the board down. Accountability is high, and so is trust, which means we can be flexible about what success and commitment look like in individual circumstances,” she says. Odile Shepherd agrees with DibbsBarker’s focus on relationships and supporting people. She says “You can get interesting work and flexible arrangements in many firms, but what makes DibbsBarker unique is our people and the relationships they have with one another. Our people also value that their leaders are willing to ‘give anything a go’ to support whatever they are trying to achieve whether it’s balancing work and family, developing their career or taking time out to pursue their individual interests.” Odile has been a beneficiary of this attitude. She was a Human Resources consultant with DibbsBarker in her early20s when the leader of the department resigned. Instead of going to market to recruit a senior replacement, the CEO and leadership team at the time gave her the
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opportunity to step up into the role, supported by mentoring from partners across the firm. She jumped at the opportunity to lead the function and has just celebrated 10 years with the firm. “An engagement score of 81 percent is fantastic and what it tells us is that our people are interested in the firm’s business and want to see it succeed. They are very forthcoming about what it is they value about the firm, but also what the firm could be doing better,” says Odile. “I am fortunate in reporting directly to our managing partner, Alan McArthur, and he is a strong champion for the people agenda. Our partnership is also committed to ensuring we respond to feedback we receive from our people given the awesome contribution they make to the firm. It is a priority for them and I am proud to work alongside them to create the solutions.” In response to previous staff surveys and following a comprehensive client listening project, DibbsBarker has developed internal and external programs around the theme of ‘being valuable’ over the last year. These encompass all activities from the firm’s industry and key client initiatives through to performance and development tools with a ‘valuable’ competency scorecard at their core. The firm has just embarked on the next phase of the project which has an internal and external client service delivery focus and is called ‘Step Up’. “We don’t spend too much time thinking about being different from other firms – our strategic focus, our flexibility and our support for our people are just parts of our culture, they’re a given,” says Odile. “But if they help us to stand out and make us a more successful firm, well that’s terrific.”
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In-house
The five year
itch Why do so many private practice lawyers move in-house after five years in a firm? This was one of many questions addressed by our panel of GCs, who return to talk about careers in-house, the independence of the inhouse profession and developing a centralised legal function in-house.
THEPANEL
Adrian Goss
Brian Salter
John Fitzgerald
General Counsel, Bauer Media LTD & National Vice President, ACLA
General Counsel, AMP
Head of Legal, AGL
In-house
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Moderator: Renu Prasad Australasia Editor, ALB Magazine
Jon Downes
Kim Sides
General Counsel, ACE Insurance
Gen. Counsel, Australia (Project MGMT & Construction) - Lend Lease
Mathew Kaley
Group General Counsel, Allianz Australia
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In-house
ALB: A number of senior in-house lawyers – including many at this table – appear to have started their careers in private practice. Why is that the case and is this a transition you would recommend for young graduates leaving university? ADRIAN GOSS: I think – except for the very large in-house teams on the whole, in-house teams don’t have the capacity to train junior lawyers to anywhere near the standard that the big firms do. I think for that reason, starting off in a law firm is quite important, unless you’re going to go into one of those big teams that do have the resources and the capacity and the general wisdom within the team that would allow that [training] to happen. KIM SIDES: ...and the commitment and the appetite, I think, is an important element of that. I’ve got quite a nice mix in my team at the moment between senior lawyers, a couple of junior lawyers, one of whom has only ever been in-house, another that went in-house, I think, quite junior. I’d always thought you needed to be in [private] practice probably four or five years in order to lay down a coal seam of broad knowledge that you can then mine as you then work in different industry groups. And I still think as a general observation you need to have a reasonable amount of private practice experience- partly the training, but also the rigour of the basic skills; writing, communicating, understanding what the brief is, learning that the client may have not asked you the right question- because that’s fundamentally a lot of what we do as well. But there is a nice fluidity now between the in-house and the firms, which I actually think is a really positive progression. I think it comes from the maturity of seeing in-house as a sensible step in your career now, rather than something that those who couldn’t cut it in firms do. ALB: That figure - four to five years - in private practice before you make a move seems to come up a lot. Have the rest of the panel got any thoughts on that? BRIAN SALTER: Well, I’m probably a very bad example because I was in private practice for twenty-two, twenty-three years before making the transformation, but reflecting back on my own experience when I was in private practice, by the four to five year mark you’ve been a senior associate for a while, had responsibilities and diversity of experience, you’re getting more challenging assignments... I think that’s probably about the right time. That sounds right for me.
But there is a nice fluidity now between the in-house and the firms, which I actually think is a really positive progression - kim sides
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JOHN FITZGERALD: I think it’s also the confidence you acquire with that level of experience as well. I think if you’re anything less than four or five years, you haven’t quite got the level of confidence you need to interact with your clients, because you haven’t acquired the kinds of core skills that Kim was talking about. JON DOWNES: In in-house, you’re looking for somebody with the skills they have learnt in the private practice but they need to learn how to apply that commercially. They need to become solutions oriented beyond just the legal question, looking for the overall answer to the questions put to them and to have regard to the company’s overall strategic approach and that doesn’t come immediately. So when I’m recruiting, certainly I’ll be looking at that private practice experience. But there’s a lot more [than that]. KIM SIDES: I think there’s also one refinement – I should perhaps continue to challenge myself and others in the fact that we’re putting so many law graduates through now. I don’t think that we can assume that the in-house lawyer is always exactly as we are – doing transactional work or advice work – I think those very basic legal skills can be useful in other tasks that aren’t strictly in-house legal tasks. So I’m getting a number of CVs through from people who are freshly qualified, who want a foot in the door but they don’t necessarily ever want to be a GC. They’re interested in just doing some company secretarial work; they’ll probably move onto three of four other careers on the way through. I think we also shouldn’t be too closed minded about the pool of talent that’s coming through. BRIAN SALTER: Certainly at our place we have various levels of lawyers and that represents different levels of experience but, also, different types of assignments and matters that we will give them as a part of their professional development. And so, we have legal counsel, senior legal counsel, executive counsel and obviously the general counsel. And so each layer represents a different degree of seniority, but it also represents a different kind of work we give people and we’re trying to encourage a process of vertical movement, so, if people feel that there is a career path ahead of them, and, when they come in they’re not only getting challenging
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legal tasks, but the other skills that they need to be a successful inhouse lawyer, they’re also getting those opportunities as well. JON DOWNES: I would say it’s not a rigid rule – four to five years - it certainly is a good guideline, but, I think, as Kim was saying, it depends on the aptitude and the ability of the individual to demonstrate that they’ve got the skill set that we might look for in an in-house lawyer and certainly, from my experience in the insurance industry, the in-house legal role has expanded to encompass compliance and risk and a range of other skill sets that people don’t necessarily completely learn in a law firm, so if you get somebody with the right attitude, approach and ability to pick things up quickly.... they might not have been in private practice all that time but they have worked in another non-legal area - they have the basic legal skill set, you can certainly shape them and mould them into the sort of person you want on your team.
In-house
that is a very effective synergy; compliance and legal reporting to the same head. - matthew kaley
ALB: I was interested in what you were saying about compliance and risk. How do those functions usually mesh with the structure of an in-house team?
other and the legal team, for instance, usually looks at some front end dealings with regulators, making submissions on regulatory change and advising the compliance team on what might be coming. The compliance team deals with things that go wrong, deals with regulators, and explains the issues that come up and the remedies that we might be looking to put into place. So I think that, for me, that is a very effective synergy; compliance and legal reporting to the same head.
MATTHEW KALEY: I have both compliance and legal report to me and I’ve set it up as a model, so that the legal team services the compliance team... but the connection is obviously very significant so that the issues that come up in one team normally have some relevance to the
KIM SIDES: I think we have the luxury of being a fairly large organisation, so there’s well established principles of looking for risk, looking for compliance, so there are well
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over the last twenty years we’ve seen a real maturing and that in-house legal has its own value proposition now. - brian salter
clients better, they’re better at meeting clients’ needs, they’re perhaps more commercial and, by the same token, as we’ve already discussed, in-house lawyers who have had some private practice experience perhaps have a little more rigour around the hard legal skills.
established divisions that have got that as their responsibility. I think lawyers are naturally good at identifying risk and managing risk and we naturally try to bring people along with us. You’re really trying to bring that sensitivity to risk and compliance in everything you do, with everybody you come across, because that’s part of an organisational approach to risk.
BRIAN SALTER: When I was starting out, in-house legal was regarded as the poorer cousin of private practice and you went into inhouse legal because you couldn’t be a partner of a major law firm, or you didn’t want to be a partner of a major law firm and so the holy grail was being a partner of a firm rather than in-house legal. But I think over the last twenty years we’ve seen a real maturing and that in-house legal has its own value proposition now and its own skills sets that it looks for and encourages in people – which are different from private practice – and I think that transfer of experience and knowledge between the two. It is a very healthy process. (In) private practice, when you’re in a large
ALB: Kim, you spoke earlier about the increased fluidity between in-house and private practice. We’re seeing a lot more people doing an in-house stint and then returning to private practice. What are the panel’s thoughts: is this a path we’re going to see a lot more of in the future? ADRIAN GOSS: I think it is and I think that it’s a positive thing. I think both sides of the profession inform the other side. I think private practice lawyers who’ve had some experience in-house understand
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law firm, or any law firm, and a matter comes to you, you tend to be outside the organisation and so you’re just being referred a legal issue and you’re having to opine on it, whereas in-house lawyers tend to spend their time from beginning to end with a particular issue and they work with the business all the time. So they have a lot invested in the outcome and I think it helps a lot for external lawyers in private practice to be able to understand the client focus and the client value elements that we bring to the table and it can also help them in the way they service the company as well. KIM SIDES: In developing your staff, I think you also can’t assume where any member of staff is going to go next. I mean, I take it as my responsibility to my staff that I’m going to make them fantastic at what they’re doing, to fit them for whatever their next role is whether it’s with me or elsewhere - I’d like them to leave my team better than when they started, and having learnt something along the way and taught something along the way. So, I was very sorry to lose my Assistant General Counsel, but she was approached to become partner of a firm and it’s something that she was always wanting to do. I was delighted for her. Even when we catch up from time to time as a client- I’m now a client to that firm- you sort of say: ‘Now, how are you going with this? Have you thought about that?’, because you’re still interested in seeing your people succeed. JON DOWNES: Certainly from my experience of being in private practice for a number of years and then in-house - they’re two very different cultures and it really depends on the person and the sort of culture they prefer. I think, personally, it would be difficult for me to get back into private practice. I enjoy being a lawyer in business, which requires a different focus and different skills sets, I think, to being a lawyer in private practice. As well, you have to understand how the business works, you have to interact with the board, have business acumen, be able to communicate with the different business units and think much more commercially than you necessarily would when you’re in private practice. And in private practice you tend to be specialising in a particular area, whereas General Counsels have to.... well, the word ‘general’ in General Counsel is exactly that. You need to be across pretty much everything in the business, so it’s a very different culture and one which I find quite interesting. ALB: There are a number of different ways of structuring an in-house team – for example, a centralised versus decentralised model – how do you approach this issue? MATHEW KALEY: We have a centralised structure and you have to have a very close relationship with your customer to compensate for not being embedded in the business. We do that by having a single legal point of contact for every client. So core clients across the business will all have one lawyer that they can talk to about all of their business. And it’s that lawyer’s job to understand the business of the person concerned and we also annually review all of Allianz’s strategic plans and make sure we understand the goals of all those areas of the business, so that not only do we align the advice that we provide with those end goals, but hopefully proactively support them and give them ideas in relation to the achievement of those goals. And I think if you’re going to take a centralised approach – which personally I favour – you need those compensating factors to make sure that you’re as close to the business as you can be.
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KIM SIDES: I think the centralised structure is important for ethics and quality support and, lawyers - unless you’ve got a critical mass - they just “go native” and that’s not in the business’ interest and it’s just not in the interest of the lawyers either. Lawyers are best when they are supporting each other and also part of the advantage or part of the approach that we’re able to offer, is that if you’ve got a big enough team you can actually have leave, because there’s somebody else who can help you. That team culture where lawyers naturally look out for each other is very hard to keep up if you have a de-centralised structure. ADRIAN GOSS: There’s such diversity within the in-house profession and the in-house teams, and on the whole this panel represents larger teams in highly regulated industries. The vast majority of teams are smaller - one, two, three people - and in unregulated, relatively unregulated industries, not finance, not insurance. And you know, I think that the one thing that is absolutely true is that you’ve got to be close to management.
we put a lot of emphasis on integrating ourselves as far as we can with the business: participating in key decision making forums, like steering committees and project teams and so on. - JoHn FITZGERALD In-house can’t deliver value without being close to management. I think beyond that, so much varies - on the age and experience of the team, the size of the organisation, the way the organisation itself is structured- so, I do think it is very hard to generalise about in-house structures. JOHN FITZGERALD I agree with most of what’s been said. We run a function that is mapped and scaled along business functional lines and, because we are a centralised function, we as Matthew said - put a lot of emphasis on integrating ourselves as far as we can with the business: participating in key decision making forums, like steering committees and project teams and so on. I think without that you become disconnected from what’s going on in the company.
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In-house
ALB: The independence of in-house counsel has certainly come under scrutiny of late, with several notable High Court decisions last year. What was your reaction to these? KIM SIDES: I’m concerned that judges are taking the view that we’re more likely to be swayed than external firms because we’ve got the risk of being sacked. I would’ve thought that my MD is more likely to listen to me when I say: ‘Look, that’s a really bad idea’, and is more likely to hear it from me than an external firm that might not have heard the whole story, so I query the way that some of the judiciary are seeing the [in-house profession]. I think, given the need to manage legal costs, the in-house function is very sophisticated. I think that most of the time we are robust and at arm’s length. We’re going not to change the fact that we are going to be held to a high standard because we are embedded with the business. BRIAN SALTER: It’s a very common misconception and one that I think warrants challenge; that somehow if you’ve moved in-house that you’re compromised in your independence. And certainly I think, in my organisation - and I’m sure it’s replicated throughout that there’s quite an independent reporting line, and so my entire team reports up independently to the CEO and to the Chairman. From our perspective we think - and so does senior management that our value is in providing dispassionate advice. And if you’re actually not providing independent advice, all you’re doing is masking risk that the business will eventually trip over. So, it’s much better that it be recognised at the outset and dealt with and managed rather than just being swept under the carpet.
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From my observation over five years at AMP my entire team- and it’s something that I’m quite proud of – are very fiercely independent in the advice that they give but at the same time they can understand, I think, their value lies in that they understand what the business would like to do and that gives them an opportunity of being more innovative and creative about forging a solution which is within our risk parameters. AMP is an incredibly conservative organisation and rightfully so given our role... but we can forge, within the parameters set by the organisation, creative, and innovative solutions which are a benefit to the business and I think that’s one of the great value propositions that we deliver. JON DOWNES: The judgement last year concerning James Hardie also concerned facts that took place over ten years ago. I think the in-house model now is very different to what it was back then; there are a lot more lawyers who are in-house, a lot more lawyers come from private practice, there’s the Australia Corporate Lawyers Association, and there’s the New South Wales Corporate Lawyers Association that give a lot more. There’s a focal point for
In-house
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VISIT: www.legalbusinessonline.com to view video footage of this event.
in-house lawyers. Businesses understand the role a lot more clearly and I think that some of the issues raised in that case are much less likely to arise now and I think in-house lawyers - as Brian said - are very much aware of their ethical responsibilities. They’re solicitors, officers of the court first and foremost, and to suggest that there’s any disparity between in-house lawyers and private practice lawyers, I think, the in-house lawyers would very much disagree with any such suggestion. KIM SIDES: At various points in your career you do get an opportunity to be in what’s almost a purely commercial role and it’s important to know which side of the line you’re on, because if you’re doing a purely commercial role you should have a commercial title. You’ll always bring legal knowledge and support and skill to it but we shouldn’t add to the blurring of that line in any respect, because
the judges are struggling to keep up, I think, in some respect with modern legal practice, external and internal. MATTHEW KALEY: To buttress what my colleagues have said, you need to be clear on what you are doing day-to-day, and whether it actually is Head of Legal or some other role. So I’m Company Secretary, I’m Head of Compliance and I’m General Counsel, so there is quite a lot that I do day-to-day that is not the provision of legal advice and I mark my emails, for instance as to whether or not they are privileged, and I make sure that I’m aware when I am dealing as a nonlawyer and when I’m dealing as a lawyer. And if I’m a non-lawyer I will assume I’m an officer and make sure I comply with my duties as an officer. When I’m a lawyer, then I’m giving legal advice and have regard to my obligations as a lawyer and I think most in-house lawyers have to have regard to all that as well. Our sincere thanks to the panel for taking the time to participate in this Roundtable. Video footage of this event will be uploaded at www. legalbusinessonline.com.
Shipping & Offshore Finance Associates Singapore | 3 years PQE to Senior www.shlegal.com
Stephenson Harwood’s Shipping and Offshore Finance team is one of the world’s foremost names, widely recognized for its strength and depth and ranked in Tier 1 by both Chambers Asia Pacific and Asia Pacific Legal 500. The three partner practice in Singapore is now looking for associates, from 3 years’ PQE upwards, with finance experience (ship or asset finance an advantage, but not essential) to join the team in Singapore. The appointed candidate will have the opportunity to work on many of the market’s leading transactions, in a team noted for its collegiate team ethic and its dedication to excellence. We are looking for candidates who combine technical capability with ambition and drive. Successful candidates will receive attractive remuneration, benefits and a relocation allowance. To apply, or for further information, please contact Gracies Goh at Stephenson Harwood in Singapore on +65 6622 9660 or by email at gracies.goh@shlegal.com.
Stephenson Harwood has offices in Beijing, Dubai, Guangzhou, London, Hong Kong, Paris, Piraeus, Shanghai and Singapore.
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TMT
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CONVERGENCE OF FORTUNES The epic NBN rollout, the rise of ‘big data’ and the reality of convergence means now is a better time than any to be a TMT lawyer, writes BEN ABBOTT.
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Andrew Messenger
Bernadette Jew
Graham Phillips
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ustralian Prime Minister Julia Gillard’s bold political decision to name this year’s Federal Election date was designed to redirect pressure towards her strengthening political opponents. However, with September 14 now looming large in Australia, TMT lawyers will be waiting to see what impact a highly probable change of government later in the year may have on everything from the ongoing National Broadband Network rollout to the future of media convergence. Though much is at stake and there are fears of a subtle shift in gear towards a more ‘wait-and-see’ client stance, TMT lawyers both in Australia and New Zealand remain confidently upbeat. They have a lot to be happy about. Fresh from successfully advising on the launch of the NBN in Australia as well as Ultra-Fast Broadband (UFB) in New Zealand, law firms have now turned to the decade-long task of implementation, which is set to provide a consistent stream of work. Likewise, bread-and-butter IT transformation and procurement projects and the cloud computing revolution are driving technology practices forward, while the long-predicted communications and media convergence endgame has now become a vivid reality.
The new networks Many corporate lawyers dream of someday taking the lead on one of the game changing deals of their generation. But for some TMT lawyers in Australia, that dream has already been realised. “In the telecommunications space and generally in the corporate space the NBN
Philip Wood
“Our clients have grown having to fight a dirty fight with the incumbent, and that is what they are doing again – one incumbent has been replaced by another.” Tony Dooley, Herbert Geer
was the most complex transaction for many years in Australia and certainly globally was the most complex transaction a telco has gone through,” says Gilbert + Tobin partner Peter Waters. Advising Telstra on the deal alongside King and Wood Mallesons, the NBN dominated legal work for Gilbert + Tobin’s top tier TMT practice for a three-year period, and the significance of the transaction still resonates for those other lawyers who were lucky enough to snare the work. “I think the NBN was the biggest deal in this space in recent times,” says King and Wood Mallesons partner Cheng Lim, who advised Telstra on its definitive agreement with NBN Co. In agreement is Corrs Chambers Westgarth’s TMT leader Andrew Messenger, who was retained as specialist legal adviser to the Australian Government on the project: “There is no doubt the NBN was the most significant development I or any of us have seen in recent times,” he comments. However, with the initial deal long-since sealed and NBN Co busy connecting fibre to homes across Australia, lawyers have moved deep into the decade-long process of implementation. “The agreement was not the end of the deal, it was the start,” says Cheng Lim. “It’s now more about working out how this is all going to work. There’s the push and shove between companies, aiding with disputes, some regulatory work and advising on strategic matters.” G+T expects to have to utilise the full spectrum of its services to help Telstra through an era set to transform every corner of its
TMT: The key trends to watch NBN and UFP network rollout
With national networks being rolled out over a decade, lawyers expect continued implementation work, including on access and pricing issues.
Convergence and Cross-media regulations and the convergence of delivery technologies will drive further consolidation media consolidation, including at Channels 9 and 10. Transformation IT transformation projects are now being bitten off in more digestible chunks, while clients and procurement are moving from single to multiple suppliers.
Steve Nightingale
Cloud computing The rapid flight to the cloud continues, causing a boom in data centre construction as well as and data data privacy and sovereignty concerns.
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Tony Dooley
Peter Waters
business. “Telstra now have to become a service-based competitor operating on someone else’s network, while simultaneously operating their own legacy copper network – that’s like trying to keep your feet on two moving platforms,” Waters says. Meanwhile, Messenger says Corrs continues to benefit from its government and NBN Co panel appointments. But the work is not restricted to Telstra and NBN Co panel firms. Herbert Geer is one firm that has grown its TMT practice significantly since 2005 by representing challenger internet service provider (ISP) clients like iiNet, who have had to battle for fair access to Telstra’s network and facilities. The firm estimates it has saved clients $200 million to $300 million in operating costs over seven years through its representations. Though NBN Co is in the midst of setting umbrella terms of access for its network over 30 years via a Special Access Undertaking, Herbert Geer partner Tony Dooley says there will still be much that will need to be decided across shorter terms. “Our clients have grown having to fight a dirty fight with the incumbent, and that is what they are doing again – one incumbent has been replaced by another,” Dooley says. “Our clients still have to make sure they get reasonable terms of access to protect their interests.” And while it is not yet giving lawyers pause, firms will be keeping a close watch on the Federal Opposition’s plan to change the shape of the NBN rollout should it win in September. “We’ll all be focused on what that may mean for the rollout of the NBN,” says Messenger. Across the Tasman in New Zealand, Hudson Gavin Martin’s founding partner Simon Martin says the UFB rollout is also resulting in work. “Companies are asking themselves, ‘if there is going to be a better connection available to the customer, what can we put down that pipe?’”
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“There may be an element of wait and see now as broadband becomes more widely available, to see what opportunities will present, who will enter the market and how companies may go about putting a richer offering to the end user,” Martin says.
Full spectrum dominance In September last year in Australia, Optus was denied leave to appeal a High Court case that saw its TV Now service scuttled by rival Telstra due to potential media rights infringements. The Optus ‘time-shifting’ service, which allowed customers to record free-to-air TV programs when broadcast and played back on any Optus mobile device or a PC, incurred the ire of the NRL and AFL football codes, which had granted Telstra exclusive licences for online broadcasting. Lim, who was part of the King & Wood Mallesons team advising Telstra on the landmark case, said it represented a “massive victory” for the company and media rights holders. However, the TV Now case was a clear example of the way new technologies are reshaping and testing the boundaries between competitors in the communications and media sector, and how
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“I expect that there will continue to be jockeying in the market as telcos look for a richer play, across fixed, mobile, television and internet” Simon Martin, Hudson Gavin Martin
Socially awkward: Adjusting to new media ill-equipped current legislation is to deal with this new age of convergence. The April 2012 Convergence Review stated clearly that regulation was lagging behind fast-paced development in technology and recommended sweeping changes. What a government may do with the review is a key question for TMT lawyers following the September 14 election. Messenger says while the concept of convergence has been talked about for many years, it is only now that it is starting to make a very tangible and visible impact. He says one of the main likely outcomes is continued consolidation, including at Channel 9 and 10. Corrs advised CVC Asia Pacific shareholders on the urgent restructure at Channel 9 last year. Law firms are also witnessing a convergence-driven separation between content creation companies and media delivery companies, with delivery companies now forced to be much more focused on the consumers they want to attract as the number of media channels proliferate. Convergence is playing out in New Zealand as well as Australia. With the country switching over from terrestrial to digital broadcasting, Hudson Gavin Martin advised TVNZ on its JV with Sky TV, creating the ‘pay-lite’ TV offering igloo that will help Sky and TVNZ present a Pay TV offering to a type of customer that might not otherwise be available. “I expect that there will continue to be jockeying in the market as telcos look for a richer play, across fixed, mobile, television and internet,” says Martin. Players are working out where they will sit in terms of the new digital offering, and where they will be getting the content from.
Carlton & United Breweries’ VB brand may like to associate itself with a hard-earned sweat, but the group’s executives recently found themselves sweating over an unwelcome ruling by the Advertising Standards Board that has Australasian media lawyers watching. In a test case for fledgling social media platforms, the ASB ruled that comments made by a third unrelated party on VB’s Facebook site constituted advertising, if left online by the company. If misleading, such unsanctioned comments could now land unsuspecting brands in hot water. “If that post is misleading, inaccurate or offensive in some way then potentially the advertising regulator could say it is not enough to say, ‘We didn’t write that it isn’t our advertising’,” says Buddle Findlay partner Philip Wood, who feels the ruling has implications in New Zealand. “Even though it’s generated by a third party, companies may need to actively monitor and take them down.” Lawyers are currently getting clients up to speed on social media, though at this point they don’t expect that advice on the social media market is likely to make them rich overnight. “We are doing work around social media, helping people to understand that space and develop policies and procedures to deal with it,” says Wood. Corrs’ Andrew Messenger says social media has now become a legitimate marketing strategy for many firms, and as such, will require digital marketing strategies that deal with the legal issues.
Australasian Legal Business ISSUE 11.03
There are also questions over whether that content sits in too few hands, with Sky TV’s rights and relationships under scrutiny from the government. “We will wait to see if anything comes of the Commerce Commission’s review of content rights and access. If they come back negative [for Sky TV] on that, it could result in increased activity in the market with new players coming in or some who claim to be constrained being freed up,” says Martin. At present, telcos in Australia are preparing for the upcoming 4G spectrum auctions, which is providing a near-term wave of legal work despite the shock withdrawal of Vodafone due to a higher than expected spectrum price and threats from Optus that it may do the same. ‘The auctions are very critical to Telstra and indeed to all mobile carriers, and although some companies are saying they aren’t interested, this is going to be very important,” Lim says. Bread, butter and big data Leading technology practices are seeing a continued surge in their importance to clients of all stripes, as technology moves to centre stage, particularly in the private sector. “Technology has gone from a bolt-on to the point where businesses are now building around technology and the potential transformation it can achieve,” says G+T partner Bernadette Jew. “We are seeing more projects receiving senior executive involvement than 15 years ago.” The make up of this technology work is highly sustainable. Firstly, there are the bread and butter IT procurement and transformation projects, which have picked up after a GFC lull in both Australia and New Zealand. Some clients are moving into their second or third regenerations. Jew, who recently advised on major IT transformation projects for Westpac and
“Technology has gone from a bolt-on to the point where businesses are now building around technology and the potential transformation it can achieve.” Bernadette Jew, Gilbert + Tobin
TMT
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Australasian Legal Business ISSUE 11.03
“It is a key focus for IT clients, and we are doing a lot of work in relation to new data centres for a wide range of organisations and we expect that to continue.” Andrew Messenger, Corrs
All things to all people? The TMT legal market The legal market in the TMT sector remains much as it has since prior to the GFC, with the largest telco players served primarily by larger full-service law firms. These players include King & Wood Mallesons and G+T in Australia, who advise Telstra, as well as Baker McKenzie and Minter Ellison, who advise Optus. There are also a number of firms clustered around new player NBN Co, including Corrs, Ashurst and Allens, a solid mid-tier that includes the likes of DLA Piper and Norton Rose, as well as smaller boutique firms that have grown their practices advising smaller players including Herbert Geer, which advises iiNet, and Maddocks for Macquarie Telecom. Boutiques like Hudson Gavin Martin and Webb Henderson have been a feature of the TMT market in Australasia since before the GFC, primarily due to larger firms skewing their focus and fees toward high-end corporate and M&A work, leaving clients looking at other propositions. The trend hasn’t stopped. These firms have seen their offerings grow and mature, while new tech and IPfocused firm, Switch Legal, emerged from the ranks of NAB’s in-house team last year. Some lawyers expect recent international merger activity in the top tier may result in more lateral movement in 2013, with some TMT lawyers said to be at odds with this new direction. They also expect competition to remain tight, both among external law firms, which are being asked to compete on price, and with in-house legal teams, which are keeping their budgets under control by cutting back on the outsourcing of legal work, particularly technology related. Individually, TMT lawyers themselves will have to increasingly be more things to more people, as convergence drives the range of skills they are required to master into new areas.
NRMA as well as external IT procurement projects for Qantas and the NSW Government, said clients have learned the hard way they need to take a staged, flexible approach to such larger projects. “They can’t know everything when they are starting out, so we are now working on pieces of projects as they evolve. From the design phase, to the contract for build, and the ongoing run phase. Clients are no longer thinking they can lock it all down at the beginning.” Lim says the trend towards flexibility is resulting in more multisourcing, rather than single providers. “Fewer and fewer bigger clients are outsourcing everything. They are being smarter and taking more control by outsourcing smaller and more manageable pieces,” he observes. The public sector is also seeking more efficient IT procurement practices. Based in Wellington, Buddle Findlay partner Steve Nightingale recently advised a major government department in the creation of a master contract for an infrastructure as a service platform. The model allows other agencies to sign on to the master contract, rather than going through their own procurements. But the trend on the minds of most IT lawyers is the rise of ‘big data’ and cloud computing. “This has been happening faster than people thought,” says Waters. “We are seeing stuff flying out the door into the cloud up and down the chain, including mid-sized enterprises.” Cloud computing by its very nature involves a different approach to provider contracts. “These are a different model to the old software licenses with different considerations, such as resilience, service performance over a network, and data sovereignty,” says Nightingale. Indeed, both public and private sectors are grappling with the issue of privacy. Australia only minted a new Privacy Amendment (Enhancing Privacy Protection) Bill in November 2012. “Data security will continue to be important – we have seen an uptick in these issues, including investigations around breaches. That’s something that will continue,” says Lim. With increasing amounts of data flowing offshore – particularly from the private sector – companies are now more than ever focused on jurisdictions with robust protections. “Clients used to want to locate jurisdictions with thin data laws, so they could maximise their ability to use the information in those locations,” Waters said. “But that has largely reversed. Consumers want to make sure their data is hosted in a place with good, clear data protections.” The growth in cloud services is resulting in an explosion of data centre-related work, with firms involved in the building of the infrastructure needed to host the mushrooming amount of data. “It is a key focus for IT clients, and we are doing a lot of work in relation to new data centres for a wide range of organisations and we expect that to continue,” says Messenger.
ACLA
Australasian Legal Business ISSUE 11.03
Gender equality legistlation
51
– Balancing gender is not a universal proposition By Tony de Govrik, Legal Affairs & Communications Director, Australian Corporate Lawyers Association, the professional body for in-house lawyers. There are many commentators on gender equity and I do not profess to be an expert. But the reality is that there is still inequality and in the words of Barbara Streisand, “How I wish we lived in a time when laws were not necessary to safeguard us from discrimination”. But alas we do, and it is this entrenched gender inequality that the government’s new legislation, passed by Federal Parliament last November, attempts to address. Following the passing of the Equal Opportunity for Women in the Workplace Amendment Act 2012 the Equal Opportunity for Women in the Workplace Act 1999 has been replaced by the Workplace Gender Equality Act 2012 (WGE Act). Under the new legislation, the Equal Opportunity for Women in the Workplace Agency has been renamed the Workplace Gender Equality Agency (WGE Agency). What all this means is that from April 1 this year, as part of the Federal Government’s attempt to close the gender pay gap, relevant companies will have to report how many women they employ and how much they earn compared with their male colleagues. All non-public sector employers with more than 100 employees will also have to detail what flexible working arrangements they offer and how many staff actually take them up. For details of the reporting requirements visit www.wgea.gov.au The gender equality indicators are yet to be detailed by the responsible Minister and are likely to be delayed until after the Federal election in September. However, I believe they will include matters such as the gender composition of the workforce, gender composition of an organisation’s governing body, equal remuneration between men and women and the availability of flexible working arrangements. The big compliance stick that the Federal Government will be waving is that companies that do not comply with the new requirements will not be able to apply for government contracts or Commonwealth grants or financial assistance. The other sanction the government has is for non complying employers to be “named and shamed” in an annual report by the WGE Agency tabled in Parliament. How ironic then that, when looking at the in-house legal profession the proportion of women leading legal functions in the government sector is 17 percent, compared to an Australian average of 38 percent. This is
in stark contrast to the NGO, NFP and academic sectors where 60 percent of head of legal are women. This can lead people to assume that the big end of town is not pulling its weight. On the contrary, the ASX 100’s general counsel are 30 percent women, compared to the average of 9.7 percent female executives across the ASX 200. In smaller organisations (fewer than 300 employees) 52 percent of heads of legal are women, but this drops to 35 percent for organisations with over 2000 employees. Where there is a sole GC, 49 percent are women, and the leadership drops to 14 percent women in teams of 20 or more. Broadly speaking, flexibility in working arrangements is highest for senior lawyers (> six years experience but not yet GCs) with 45 percent of legal functions having staff on flexible working arrangements. Comparatively 17 percent of organisations have GCs and 11 percent of young lawyers utilise flexible arrangements. It is tempting to say this fits naturally with family life stage, however, as with gender diversity, this is not universal – 69 percent of government organisations have legal staff on flexible arrangements and the in-house profession is 60 percent. Flexibility though, comes down to resources. For sole GC legal functions 30 percent of organisations utilise flexibility (this includes working from home arrangements). Where there are two to four legal staff this jumps to 66 percent and by the time you have more than 20 legal staff it is at 95 percent. These statistics demonstrate that within in-house, gender diversity and workplace flexibility issues are not universal. Assuming this is similar in other professions in business and government, then the question that needs to be asked is ‘will this additional reporting requirement make a difference?’. For the in-house legal profession I believe there are some sectors that have good leadership diversity and flexible working arrangements and others that can do more. Reporting is not the universal answer, but in the absence of society norms providing the impetus, regulation is required to safeguard us from discrimination. Reference: • •
2012 ACLA CLANZ In-house Counsel Report: Benchmarking and Leading Practices. ASX100 General Counsel Report: The nature of the role as at 30 June 2012
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AGRIBUSINESS
Australasian Legal Business ISSUE 11.03
Foreign investment
in Australian farms: rash or prescient?
AGRIBUSINESS
Australasian Legal Business ISSUE 11.03
Australian agricultural assets may be hot property in the eyes of foreign investors – but is the optimism justified?
F
or all the willing buyers seeking tracts of Australian farm land, local investors are not among them. They wonder what all the fuss is about. Years of weak and volatile returns and some of the harshest weather on earth suggest a wave of foreign interest in Australia’s farms and agricultural assets is on a fool’s errand. “Overseas investors are too dumb to realise that they are not going to make money out of Australia agriculture,” said David Leyonhjelm, an Australia-based agriculture consultant at Baron Strategic Services. He may have a point. Australian farms’ return on capital has seldom exceeded more than two percent in a year on average during the past decade, excluding changes in land values, according to government research bureau ABARES. That is less than half the return on stocks and less than a third compared with bonds, figures from Russell Investments suggest. Although farm returns are volatile anyway - owing to the vagaries of the weather - the unpredictability of Australian earnings is much greater than in the U.S. In the past 30 years, Australia’s net farm income has experienced annual drops of more than 40 percent on five occasions compared to just once in the U.S., data from ABARES and the U.S. Department of Agriculture shows. Including capital appreciation, Australian farm returns have been outstripped by Africa and Brazil. Australian farm debt has risen some eight percent a year since 2001, almost double the pace of U.S. farm debt. Even when it comes to the weather, Australia seems worse off. It has the lowest and most variable rainfall patterns of any inhabited continent, due largely to the El Nino-Southern Oscillation climate pattern that periodically bakes much of the country in hot, dry weather and intersperses it with flooding rains. “In recent history, Australia has seen more volatility in agricultural farm output than other major agricultural producers,” said Michael Creed, agribusiness economist at National Australia Bank. “In the past 20 years alone, we’ve had a drought that lasted a decade and when the drought broke, it broke in massive way.” Despite the weak and volatile returns, the explosion of the middle classes in Asia is attracting more offshore investors looking beyond immediate returns to an expected long-term surge in demand for high-quality food. The UN Food and Agriculture Organisation says the world needs to boost food output by 70 percent by 2050 to meet demand, a sobering statistic for highly populated countries such as China, where a major tenet of the Communist Party is guaranteeing food security for its 1.3 billion people. Chinese investors have been involved in a number of high-profile farm deals, including the purchase of the country’s biggest cotton farm, the 1,000 sq km (390 sq miles) Cubbie Station. Chinese entities are also in the running for a large dairy operation in Tasmania and a big irrigation project in Western Australia. U.S
firm Archer Daniels Midland has made a $2.8 billion bid for Australia’s last major independent grain handling company, GrainCorp, spurring a 40 percent jump in its share price.
Australia lacks comprehensive data on foreign ownership but the government says the vast majority of farms are locally owned and that has not changed much over the past 30 years. But spurred by a number of high-profile foreign deals, the issue has become politically sensitive as the sector struggles to attract much-needed investment at home. Despite local scepticism at the prospects for Australia’s farming sector, the increase in offshore interest comes at a time when returns have seldom been better and this adds to other evidence suggesting the foreign investment may not be mistimed after all. Helped by generous rains and strong global prices, Australian farmers may have enjoyed the best year in decades in 2011/12. “For the first time in more than 30 years, all states and all industries are expected to record positive farm business profits and rates of return,” ABARES said in its 2011/12 annual crop and livestock farm performance report. Average farm cash income jumped
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AGRIBUSINESS
Australasian Legal Business ISSUE 11.03
CHART TWO: Broadacre and dairy farm financial performance
Source: ABARES farm survey results, 2009-10 to 2011-12
to A$117,3000 in 2010/11 from just A$59,470 the previous year, it said. This year is forecast to remain a strong A$116,000 - almost 40 percent above its real, long-term average. Some analysts say a global rush for agricultural land is just beginning, driven by increasing concerns over long-term food and water security. With the availability of suitable farmland shrinking and productivity gains slowing when populations are growing and diets changing, supply/demand dynamics are likely to be favourable over the next 40 years, an ANZ report says. Another study, by real estate company
Savills, identifies Australia as having some of the lowest land costs for wheat production in the world and highlights the appreciation in farmland values since 2002. Shandong Ruyi Group, which bought Cubbie Station, is taking the long view, company adviser Ian Smith said. “They are not dictated by the short term and they also have a proud track record of maximising the assets over the longer term,” he said. Underscoring the gap between the short and the long view, Laguna Bay Pastoral Co, an agricultural investment fund advised by U.S. commodities trader Jim Rogers, was forced to seek investors offshore because of a lack of interest in Australia. “We were presented to most local funds. Most Australian local pension funds don’t have agriculture assets allocation,” said Laguna founder Tim McGavin. “We have been forced to market to overseas just because the general lack of understanding and interest in agriculture.” Laguna secured its main seed funding from U.S.-based Global Endowment Management, and now aims to buy and privatise PrimeAg Australia Ltd, an investor in rural property and water assets. Australia’s vast pension funds industry, sitting on $1.4 trillion and looking for longterm diversified assets, has largely shied away from the sector. Even The Future Fund, Australia’s $80 billion sovereign wealth fund, has no direct exposure to the country’s agricultural sector. Still, Pauline Vamos, the chief executive of the Association of Superannuation Funds of Australia, said interest in farm assets is picking up after some ill-conceived and poorly managed project had put off local investors. “You’ve had cotton farms built in the middle of the desert, you’ve had timber plantations built miles from any infrastructure - these schemes were never going to make any money,” she said.
Leading legal experts in agribusiness At Cooper Grace Ward, we have a dedicated agribusiness team that has not only specialist legal expertise, but also a genuine understanding of the unique needs of this sector. As a full service commercial firm, we can provide quality legal support on a broad range of issues including: • trade agreements for distribution, marketing and licensing • rural property acquisitions and sales • capital raisings and initial public offerings (IPOs) • employment and workplace relations • revenue, tax and superannuation • share farming and adjustment agreements • litigation and dispute resolution
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Partner Corporate and Commercial T 61 7 3231 2421 E david.grace@cgw.com.au
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Partner Planning and Environment T 61 7 3231 2958 E tarnya.fitzgibbon@cgw.com.au
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