Issue 46 spring/SUMMER 2010
golden gavel competition working overseas YOUR SUMMER "TO DO" LIST
RRP $7.50 ACN 075 475 731 ISSN 1441-4449
Dealing with disclosure
MEET THE HAMPELS
In partnership with
Get out of the office and get active! Join over 1000 members of the legal community at the premier legal sporting event of the year. Run 8km or walk 4km around the Tan Track and celebrate afterwards with our famous gourmet BBQ and race festivities. Not competing? Cheer on your friends and colleagues then join us for the post-race BBQ and festivities. Registration is essential. WHEN Monday, 15 November Race registration commences 5.30pm WHERE Tan Track, Cnr Linlithgow and Alexandra Avenues, Melbourne
COST (INCLUDES GST) Early Bird (register by 5pm, 25 October) $49 LIV members $65 Non members Standard (register after 25 October) $59 LIV members $75 Non members
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his year the Young Lawyers’ Section (YLS) focused on promoting diversity in the law and increasing the contributions by young lawyers to the community and profession. Young lawyers recognise that diversity is important as an essential component of representing the community we serve.
with Victorian Aboriginal stakeholders has commenced.
This is the last edition of the YLJ for 2010 and looking back over the year we have a lot to celebrate.
Y L S A D D R E S S E S C L I M AT E CHANGE The YLS continues to build on the success of previous years in our efforts to green the profession. The Green Practice Project aims to provide information, training, and support for lawyers seeking to make their firm more sustainable.
Our work this year has included strengthening our relationships with Victorian Women Lawyers, Tarwirri, and the Federation of Community Legal Centres; donating to several charities through fundraising activities; and providing timely and apt (and sometimes humorous) seminars for our members. We will continue to work hard for the rest of the year on these and other issues. RECONCILIATION ACTION PLAN CONSULTATION The Law Council of Australia notes that Indigenous people are dramatically underrepresented in the profession. Importantly, the Victorian Bar leads Australia, but still with only four Indigenous barristers. Early in the year we canvassed interest from young lawyers in the adoption of an LIV reconciliation action plan (RAP) and received significant support. The LIV Council subsequently endorsed the concept and wide-ranging consultation
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Once finalised, the RAP will present the LIV with an exciting opportunity to explore its operations, activities and influence, and map out concrete steps the LIV can take to help close the gap. Please contact us to find out more about the RAP working group.
In 2008, the project started with the introduction of a monthly column in the LIJ, and expanded to include networking and training on how to green a firm’s practice. This year, the YLS focused on assisting suburban and regional law firms to reduce their environmental impacts. Young lawyers have championed this cause in the legal profession and have placed sustainability on the agenda of the courts, private firms and the LIV itself. PERSONAL SUSTAINABILITY Up to 41 per cent of law students and 31 per cent of lawyers suffer from depression. To address this disturbing fact, the Community Issues Committee this year hosted a Hot Topics: Towards Better Practice seminar on understanding and combating depression, stress and anxiety.
YLS The Young Lawyers Journal is published by the LIV Young Lawyers’ Section (YLS) Editorial Committee. For more information on the Young Lawyers Journal or YLS contact the LIV YLS manager Anna Alexander P: (03) 9607 9379 E: email@example.com W: www.liv.asn.au/younglawyers
Young Lawyers Journal Contributions All contributions and letters to the editor are gratefully received and should be addressed to: YLS manager Anna Alexander LIV, GPO Box 263C, Melbourne 3001, DX 350 Melbourne E: firstname.lastname@example.org.
Young lawyers making a difference prove that if you want to effect a change, you have to lead it.
The seminar discussed the resilience@ law program, which aims to build awareness and education, remove the stigma of mental illness and make available selfhelp strategies, support and resources. The program has been incorporated into the College of Law’s practical legal training curriculum for law graduates. The LIV offers a free counselling service through LawCare, and mentoring is also available for young lawyers and law students. You can read more about the resiliance@law program in the October edition of the LIJ. TOWARDS BETTER PRACTICE We are the future of the profession. Based on our leadership and achievements this year, the future is looking both resilient and brilliant. Heading into 2011, remember: you will spend more time at work than anywhere else, so make sure your time counts, that it’s sustainable and that you make a difference. JULIE FRASER
YLS President & Solicitor (above right) MELanie SZYDZIK
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Views expressed by contributors are not necessarily endorsed by the Law Institute of Victoria Ltd. No responsibility is accepted by the LIV, the editor or the printers for the accuracy of information contained in the text and advertisements. Neither the LIV nor the Young Lawyers Journal in any way endorses or takes any responsibility whatsoever for any material contained on external websites referred to by the Young Lawyers Journal.
©2010 Law Institute of Victoria Ltd. This issue of the Young Lawyers Journal is cited as Issue 46/Spring/Summer 2010 YLJ. ISSN 1441-4449. ABN 32 075 475 731. The Young Lawyers Journal is printed by GEON Impact Printing.
Yo u n g L aw y e r s J o u r nal
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Meet the Hampels They have been together for 25 years and are one of Australia’s most notable legal duos. Retired Supreme Court Judge Professor George Hampel AM QC and his wife, County Court Judge Felicity Hampel SC, took time out to talk to the YLJ. How did you come to teach advocacy? PROFESSOR: It’s staggering to me that the legal profession allows people to hold themselves out as advocates and just pick up their skills as they go along. Initially, my ideas about teaching were drawn from my experiences at the Bar. Over time, it became clear advocacy consisted of skills, techniques and disciplines that could be taught and developed. Now, advocacy training has grown into an extensive body of practical knowledge. JUDGE: I fell into advocacy teaching because of George, but I found I enjoyed teaching and had an aptitude for it. I have enjoyed the opportunities to teach in Australia and overseas for so many years. Do you notice a difference between Australian advocates and other advocates? JUDGE: I generally find Australian advocates are respectful, but more independent and ready to stand up to the bench, whereas advocates from the UK or Singapore are more deferential to hierarchy. In terms of advocacy, the English are more concise, Americans are very fluent and Singaporeans are hard-working and prepared. In The Hague and Rwanda, the advocates were drawn from both common law and civil jurisdictions. Their advocacy combined different practices but what was common to all was the sense of importance in what they were doing. What’s one thing the public might be surprised to know about judges? PROFESSOR: There is a perception judges are soft on criminals but judges are unlikely to be more 4
CAREER PATH: County Court Judge Felicity Hampel recommends lawyers spend time working as a judge’s associate before going to the Bar.
“Empathy and compassion are an essential part of being a judge. You have to be impartial, but this doesn’t mean you have to be robbed of humanity.” – Judge Felicity Hampel sympathetic than the public. In fact, recent experiments in which judges and members of the public were asked to consider sentences resulted in tougher sentences by judges. Did you ever look back and wonder if you got a decision wrong? PROFESSOR: Sentencing is probably the most difficult aspect of impartial decision-making. Within the range of discretion allowed, I always tried to deal with issues in a constructive, compassionate manner. I would worry before I handed down my decision so that, afterwards, there was nothing to worry about. Has a case ever driven you to tears? JUDGE: Yes. Some cases really touch you. Empathy and compassion are an essential part of being a judge. You have
to be impartial, but this doesn’t mean you have to be robbed of humanity. What is the most frequent mistake that you see lawyers make? JUDGE: It’s easy for lawyers involved in litigation to get emotionally involved. As a judge, I want to know what the legal issue is rather than who was late serving documents. I’m not interested in point-scoring between advocates. Any advice for young lawyers wanting to go to the Bar? JUDGE: I didn’t know enough about preparation of cases, getting briefs and managing the business of being a barrister before going to the Bar. I would advise others to gain more experience, to have some savings, to have a greater understanding of the practice of the law, to know more people and to have earned their respect. It would also be Yo u n g L aw y e r s J o u r nal
PROFESSOR: We have many friends within the legal fraternity but we try to reach beyond the law. We’ve been fortunate to make friends from different professions around the world, mainly through our teaching. FOCUSED: Professor George Hampel says commitment is vital for success in the law.
of assistance to be a judge’s associate before going to the Bar because you are exposed to a variety of cases and to how judges react in their role. You have held distinguished positions within the law. Did you create these opportunities or were they the result of chance? JUDGE: It’s important to be open to opportunities and where they may take you. I had lots of out-of-leftfield opportunities that led to very rewarding experiences. For example, although I had been a commercial solicitor, when I went to the Bar I found it hard to get commercial briefs. Out of the blue, I was offered a brief before the Equal Opportunity Tribunal (as it then was). The anti-discrimination jurisdiction was just beginning and I was very lucky to be involved at the start of the development of human rights jurisprudence in Australia. PROFESSOR: I enjoy being good at what I do and it’s my commitment that helped me to succeed. I’ve also been involved in broader professional activities by being on bodies such as the Victorian Bar Council, Council of Legal Education, Legal Practice Board and Law Council of Australia. This allowed Yo u n g L aw y e r s J o u r nal
me to broaden my field of contact within the profession, which created opportunities for me. I have been lucky, but luck needs some assistance from commitment and hard work. Do you ever look to each other for advice about work? PROFESSOR: We’re always discussing our work. Occasionally, we disagree but we both have great respect for each other’s opinions and intellect. Initially, I was unsure of the need for a Bill or Charter of Human Rights. It was Felicity who eventually persuaded me of its value. She helped me to see that the common law, which I still respect, cannot sufficiently deal with difficult human rights issues and is too slow to react to social change. JUDGE: I am heartened to hear I have won George over to my way of thinking on the Charter of Human Rights! George has had an enormous influence on my thinking. I use him as a sounding board. It can be a difficult balance between giving advice yet not giving the answer. George will not tell me what to do but will ask me questions which help me reason it through myself.
Which of your roles in the legal profession have you found most rewarding? PROFESSOR: Probably, I have most enjoyed teaching. I started as a tutor at Melbourne University, then a ski instructor and, for the past 40 years, teaching advocacy. I enjoy the responses from those I teach. JUDGE: As with George, I’ve loved every part of my career. I have found the Law Reform Commission incredibly rewarding, as it gave me the capacity to reflect on the law and the way it operates, and to consider how it can be changed or improved. As a barrister, and as a judge, you are confined to the law as it applies to the instant case. JOANNE HERBERT-RUNCIMAN
Co-chair YLS Editorial Committee & Solicitor, Department of Health
AT A GLANCE
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Given you both work together and have careers in the law, how do you maintain a balance? JUDGE: It’s important to do things that have nothing to do with law. We love doing physical activities. We ski, and have just taken up surfing. I have a vegie garden in the country which I potter about in. George takes off on his tractor and attacks fallen trees with his chainsaw.
Professor George Hampel AM QC Admitted to the Victorian Bar (1958) Appointed Queen’s Counsel (1976) Justice of the Supreme Court of Victoria (19832000) Chairman – Australian Advocacy Institute, Leo Cussen Institute and the Victorian Bar Readers’ Course Appointed Professor of Advocacy and Trial Practice, Monash University (2000) Order of Australia for development of advocacy training and service to legal institutions Centenary of Federation Medal Judge Felicity Hampel SC Admitted to the Bar (1981) Appointed Queen’s Counsel (1996) Appointed to the Victorian County Court (2005) Appointed vicepresident of Victorian Civil and Aadministrative Tribunal (2010) Member –Australian Advocacy Institute Board and Management Committee, Victorian Law Reform Commission The Hampels have extensive advocacy teaching experience. They have devised and delivered advocacy skills programs in Australia and internationally, including the training of prosecutors in war crimes tribunals for the former Yugoslavia and Rwanda.
YLS Editorial Committee & Solicitor, Lander & Rogers
b e f o r e t h e b o ard
Dealing with disclosure The rule that only “fit and proper” people can join the legal profession is no mere formality in Victoria.
he range of matters taken into account by the Board of Examiners, who assess applicants under the Legal Profession Act 2004 (Vic), is unmatched in other professions. How the board and the Supreme Court determine who is “fit and proper” for admission to the legal profession can be complex.
“If they have got any queries about their affidavit they should speak to the staff and get it done right,” Mr Pippett said.
proving you’re “fit and proper” The formalities to prove you are “fit and proper” to be admitted appear simple. You require:
supporting information Practice Direction No. 4 of 2009 helpfully states that “wherever possible supporting documentation should be provided to corroborate disclosures made”. This is no easy task.
• • • •
an affidavit of disclosure; two character references; a criminal record check; and an academic conduct report from every tertiary institution you have attended.
The challenge for many applicants is working out what to include in their affidavit of disclosure. The Supreme Court’s often-repeated statement that applicants “must disclose anything that bears on their fitness to practise” can seem circular – young lawyers are left wondering if a board of seven senior practitioners cares about a littering fine they got in high school. Generally the Board is more concerned about you confessing your past sins than exactly what those sins are, unless you have some serious skeletons in your past. To clarify matters, in 2009 the Board published Practice Direction No. 4 of 2009, available on its website. This provides answers for common issues like parking fines, plagiarism, public transport fines and Centrelink overpayments. For other issues, Board staff can be a good resource. A solicitor member of the Board and LIV Council member, Bruce Pippett, said the Board encouraged applicants to go and see the staff and discuss their applications before lodging them.
“The point is that it’s not what people have done in the past, it is what their situation is when they come to make their application to be admitted.
One can expect a time-consuming wild goose chase to find any record more than 10 years old. Applicants have identified universities and Centrelink as being unresponsive to requests, claiming they cannot provide information or taking months to send it. The Department of Transport and the police are very helpful, but often do not have records of older offences. The Board expects that applicants will use freedom of information requests if necessary. As a last resort, applicants need to explain in their affidavits the steps they have taken in trying to get documentation. The good news is that if your application is a bit thin on supporting documentation, it doesn’t mean rejection; the Registrar will request further information and you will have to file a supplementary affidavit. submitTing your application When you submit your affidavit it is assessed by the Registrar of the Board of Examiners. The majority of applicants pass at this stage. Problematic applicants may be asked for further information. Applications that raise serious issues are scheduled for a hearing. These unlucky applicants must personally persuade the Board of Examiners they are “fit and proper” to join the ranks of the legal profession. Yo u n g L aw y e r s J o u r nal
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Usually there are two ways to end up before the Board: disclosing conduct of concern, or the Board discovering something you haven’t disclosed that you should have. Not confessing your sins is by far the bigger issue.
appearing before the Board Most hearings are short, and conducted in sittings of about 8-10 applicants in an informal fashion. The few “serious” cases are heard individually in a special hearing, often in court, with more formal rules.
“Applicants must show candour. If you show candour and you admit what you have done wrong and demonstrate some reformation . . . well then the likelihood is that you will be let through. There are very few we throw out,” Mr Pippett said.
The goal, according to Mr Pippett, is to find out what sort of a person you are.
Board of Examiners issues The majority of cases the Board hears relate to plagiarism, at university and in practical legal training (PLT) courses. The Board takes academic misconduct very seriously. Setting out the nature of the charge is very important: forgetting to cite authorities properly in first year is quite different from submitting someone else’s assignment with your name on it. Failure to disclose something the Board considers relevant (candour) will almost certainly lead to a hearing. Therefore it is important to get advice if you are unsure about including something. Plagiarism in particular is often picked up – if other law students are involved, there is a good chance the Board will discover the issue when your partner in crime applies for admission. Practice Direction No. 4 of 2009 provides a fairly comprehensive list of what must be disclosed. Centrelink overpayments, speeding tickets, parking fines (if numerous), and other minor offences must be disclosed, but are unlikely to result in your having to explain yourself. However, a pattern of such misdemeanors is something that you may have to explain. The Board takes a strict view on what constitutes a pattern: one applicant was called before the Board for disclosing five or so public transport fines over 10 years. The Board also requires disclosure of past mental illness or disturbances. It is important to note the Board focuses more on how applicants are coping now than how serious their illness was years ago. Yo u n g L aw y e r s J o u r nal
”When you look them in the eye and speak to them face to face you can get an idea of their character, because character doesn’t come through on the papers,” he said. The Board suggests getting representation, and no adverse inference will be made if applicants turn up with a barrister alongside. There are barristers who will represent applicants pro-bono – for more information contact your PLT provider, barristers’ clerks, or the Registrar of the Board. Being prepared is vitally important and can be a burden, especially alongside work commitments. Applicants need to prepare briefs for counsel, harass government departments for documents, draft affidavits, seek further character references and make seven copies of everything for the Board members. It’s important to realise that supervising lawyers must sign your affidavit of disclosure – so if there is some dark secret to disclose it’s better to tell them early. The hearing itself can be extremely intimidating. Applicants are grilled about their past actions by seven senior practitioners with over 200 years of combined experience in the law, who make no apologies about being tough on people. “You’ve got to make them understand that this is serious. The penny has got to drop sometime,” Mr Pippett said. “I think sometimes getting a huge grilling changes people’s lives because they realise that while they may have messed around before, this is serious.”
Important Facts The Board of Examiners website, www. lawadmissions.vic. gov.au, includes all practice directions and an information pack for applicants. You must submit a Notice of Intention to apply three months before your proposed admission date. All documents must be personally delivered by applicants to the Board’s office. Your PLT provider can provide much more detailed information about preparing documents and submitting them. If supporting documentation is late, you can delay your admission. You need academic conduct reports from all institutions you have attended, including exchange semesters, and these must be sent directly to the Board. Hearings and material submitted to the Board are confidential and covered by the Information Privacy Act 2000.
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Another country practice Rules and regulations for practising overseas differ from country to country. Wise up before you size up where you might move to.
lobalisation of the legal industry is transforming the world into a single vast legal marketplace. As law firms become internationalised, lawyers are moving to jurisdictions in the UK, US and Asia. Admission requirements in each jurisdiction are different, so migrant lawyers and students need to satisfy those requirements before entering the profession. OVERSEAS England and Wales Admission to practice in England and Wales is regulated by the Solicitors Regulation Authority (SRA) and foreign lawyers should register with the Law Society of England and Wales to practise foreign law. Foreign lawyers qualified in certain jurisdictions outside England and Wales are entitled to requalify as solicitors by sitting the Qualified Lawyers Transfer Test (QLTT). Under the Qualified Lawyers
Transfer Regulations (QLTR) the two requirements are: • a pass in the QLTT; and/or • satisfying a two-year legal experience requirement (which includes experience in practising the law of England and Wales). The test covers property, litigation, professional conduct and accounts, and principles of common law. The SRA determines the subject area(s) that must successfully be completed based on their primary professional qualification4 and sets QLTT specifications. The Legal Services Board has recently approved the Qualified Lawyers Transfer Scheme Regulations 2010. The QLTR and QLTT were due to be replaced by the Qualified Lawyers Transfer Scheme on 1 September 2010.5 United States Common law graduates and practitioners admitted to practice in common law jurisdictions are generally eligible to sit the Bar examination.
Admission is controlled by state boards of examiners and supreme courts. Foreign lawyers admitted to practice from English common law backgrounds can qualify for the Bar examination. Their qualifications must be recognised by a government accrediting agency, the law school study must be of an equivalent duration and the applicant must have successfully completed a minimum of 20 semester hours of credit, or the equivalent, in an approved law school in the US covering professional law subjects including basic courses in US law.6 Canada There are 14 law societies in Canada. Each is governed by the common law tradition from England, except for Quebec where French civil law governs the province. Foreign lawyers should apply to the National Committee on Accreditation (NCA) for an evaluation of their legal credentials and experience to be members of Canadian law societies. The NCA assesses qualifications7 of individuals with legal education and professional experience outside Canada, or in a civil law program in Quebec, wishing to be admitted to a common law Bar in Canada. National standards are applied so applicants can practise law in any of the provinces and territories. Once the stated requirements and demonstrated competence in a number of subjects have been met, the NCA issues a Certificate of Qualification. Competence is generally demonstrated via: a. passing NCA examinations; b. registering as a special student in a Canadian common law degree program and successfully Yo u n g L aw y e r s J o u r nal
c. a combination of (a) and (b). Most law societies in Canada accept NCA’s Certificate of Qualifications for entry to their Bar admissions process, but the certificate is not the same as a Canadian law degree. 8 Hong Kong Foreign lawyers wishing to practise foreign law should register with the Law Society of Hong Kong.9 A registered foreign lawyer cannot practise Hong Kong law and cannot join in partnership with Hong Kong solicitors, but may be employed as a foreign legal consultant and can practise the law of their own jurisdiction or the law of a third jurisdiction. Overseas lawyers from common law jurisdictions with five years of practice and a completed bachelor’s degree in law – or a course of study substantially equivalent to that of a Hong Kong tertiary institution – are generally qualified for admission as a solicitor.10 Foreign lawyers with less than five years’ experience need to undertake the Overseas Lawyers Qualification Examination. Practical experience in core subjects such as contract, torts, property and equity is also essential for admission.11 Singapore Foreign lawyers wishing to practise foreign law or international law can do so without requalifying provided they register with the Attorney-General’s Chamber in Singapore. Foreign lawyers cannot practise both foreign law and Singapore law holding a Singapore practising certificate. Admission to the Singapore Bar means satisfying all the requirements of “qualified persons” as set out in the Legal Profession Act and the Legal Profession (Qualified Persons) Rules.12 On meeting all the academic requirements an overseas graduate from an approved university is eligible to undertake Part A of the Bar examination, which is a conversion examination. Senior legal practitioners with substantial experience may seek exemption from the Ministry of Law from taking this. Part B of the examination is a compulsory five-month practical law course and examination.
In Victoria, the Council of Legal Education (CLE)1 assesses the qualifications and determines the requirement for applicants to be eligible for admission to practice on the basis of the “Uniform Principles for Assessing Overseas Qualifications”. All overseas applicants must demonstrate their academic qualifications in the Priestly Eleven2 subjects. It must be substantially equivalent to an Australia academic qualification.3 Demonstrating substantial equivalence is challenging and each decision by the CLE differs. Legal practitioners with considerable experience from common law jurisdictions may receive exemption from additional study in NSW, but this is not the case in other states. Applicants in Victoria get no exemptions and have to complete six or 12 months as a trainee lawyer (supervised workplace training or practical legal training) based on their previous work experience. SHEFALI KUMAR
Yo u n g L aw y e r s J o u r nal
2. Criminal law and Procedure, Torts, Contracts, Property (including Torrens system land), Equity (including Trusts), Administrative Law, Federal and State Constitutional Law, Civil Procedure, Evidence, Company Law, Ethics and Professional Responsibility. 3. See www.lawadmissions.vic.gov.au/overseas_ applicants. 4. Exemptions to pass any of the tests are granted based on qualifications. 5. See www.sra.org.uk/solicitors/qltt.page 6. See www.nybarexam.org/Foreign/ ForeignLegalEducation.htm. 7. The assessment is based on the academic and professional profile of each individual applicant. 8. See www.flsc.ca/en/foreignLawyers/ foreignLawyers.asp. 9. See the Legal Practitioners Ordinance 1994, ss 39A and 50B, Foreign Lawyers Registration Rules (Rules 2, 3, 4, 5, 6, 9, 10 & 11), and Legal Practitioners (Risk Management Education) Rules. 10. See Overseas Lawyers (Qualification for Admission) Rules, which sets out the requirements to be fulfilled and supportive evidence in support of qualifications undertaken in common law jurisdiction. 11. See www.hklawsoc.org.hk/pub_e/admission/ oversea.asp. 12. Other admission requirements are set out in s12(1) of the Legal Profession Act, and requirements in Rule 11 of the Legal Profession (Qualified Persons)Rules. Check www.lawsociety.org.sg/ble/index.htm. 13. See Rule 2 of the Legal Profession (Qualified Persons) Rules. 14. See Attorney-General’s chamber at www.ifaq. gov.sg; & www.app2.mlaw.gov.sg/Usefulinfo/ PractieclawinSingapore.
Lawyer from India, currently working in Australia
Imagine doing more with your life Yet again, Indigenous Australians have been denied an opportunity to speak… In 40 years we will still lament the unintended consequences of ‘us’ making decisions for ‘them’ across a racial divide.
An applicant with a law degree from an approved university fulfilling all other “qualified persons” criteria and being admitted to practice in a common law jurisdiction with at least two years of relevant legal practice or work and/or relevant training 13 could file an appeal to the Minister of Law for an exemption. The Secretary of the Board of Legal Education deals with the requirements on qualification as a Singapore lawyer.14 IN AUSTRALIA Foreign lawyers should register with the Legal Services Board Victoria to practise foreign law in this state. To practise Australian law, overseas lawyers have to requalify. This will be based on an assessment of their qualification.
1. Empowered by Part 4 of the Legal Profession (Admission) Rules 2008.
Since becoming a Jesuit, Father Frank Brennan has dedicated his life to promoting the rights of Indigenous peoples, refugees and other marginalised Australians.
What more could you be doing? The Jesuits are a religious order of men committed to living out a faith that does justice, following God’s call wherever it leads. For more about joining the Society of Jesus in Australia, visit us at
w o rki n g o v e r s e a s
completing the assigned subjects as part of the program of studies; or
law a n d o rd e r i n t h e h o u s e
A memorable case was representing a child who was born with spina bifida and who was put on a regimen of sedation and non-treatment. We got an injunction and eventually the child was treated. That was just after I’d gone to the Bar. Most of my practice, however, was general civil litigation; I travelled the usual journey of a young barrister from the Magistrates’ to the Supreme Court. I was really getting into it by the time I went into politics, so my dreams of taking silk were put aside. Why did you decide to go into politics?
LONG-TERM GOAL: Liberal MP Kevin Andrews’ love of politics began when he was in secondary school.
No bar to Canberra Liberal MP Kevin Andrews is one of many MPs to have turned to politics from the law. In an interview before the recent federal election he talked to the YLJ about his career.
evin Andrews learned early in his legal training to keep his cool. It was a trait that would serve him well in a diverse political career punctuated by high-profile issues including the Haneef trial, immigration and WorkChoices. From earning an LLM at Monash University to a career at the Bar and the intensity of politics, he has held various roles including Minister for Immigration and Citizenship, Minister for Workplace Relations, and even one-time editor of the YLJ. When the YLJ caught up with him, we chatted about media controversies, his years as a judge’s associate and the journey from law to his then current role as Liberal member for Menzies and Opposition spokesman on Families, Housing and Human Services. Your early legal career involved being a judge’s associate. What was that like? I was keen to be an associate because early on I had aspirations of going to the Bar. I thought it would be a wonderful opportunity to see how courts operate and judges approach decisions, and to observe some of the best – and less than best – counsel. I spent twoand-a-half years working for Sir James Gobbo at the Supreme Court; some of the best times I’ve had. He is a wonderful man and a great judge and I learnt a lot, not just about law, but about life generally. You were at the Bar for some time. Any highlight cases?
Growing up in my family, current affairs were discussed a lot and I developed an interest in politics and the governance of the country. It was an aspiration from secondary school; by university I was still interested but, like a lot of people, I wanted to get a degree and get started in a career. My opportunity came up out of the blue when my predecessor, Neil Brown, retired and I thought I should have a go. I was fortunate to win preselection and here I am. You were Minister for Workplace Relations. What were some of the changes you implemented? The establishment of a national system of workplace relations, the Fair Pay Commission and other changes were very substantial in terms of what was necessary in Australia at that time. After that you became Minister for Immigration and Citizenship. How was that time? Immigration is always a difficult portfolio because issues arise that you have no control over. It’s a matter of trying to deal with them as best you can. I think I had only one boat arrival when I was minister but there were substantial decisions involved with that; we sent the people to Nauru, obviously a matter of some controversy in the media and community, but nonetheless what we believed had to be done if we were going to stop the people smuggling trade. Whoever happens to be the Immigration Minister from either side of politics has a difficult job. The Haneef trial must have been very challenging? It was challenging for a reason that doesn’t arise in most political decisions, and that is there was information which pertained to the investigation that I was given in confidence. In a sense the media was baying for information, but I and others were legally bound to not disclose that information, so I felt like I had one hand tied behind my back. There was a lot of media attention on you at that time. How did you handle it? I don’t get too carried away by what the media says, whether good or bad. It can be assured that in a longer life in politics you’ll get both. Whether the criticism is favourable or otherwise, you have to get on with doing your job. My personality is such that I don’t get too fazed about what people say; that’s also partly my legal training. My years at the Bar and legal practice Yo u n g L aw y e r s J o u r nal
generally taught me that you represent your client to the best of your ability, but you don’t become your client. What are your thoughts about the current stances on immigration from the two federal leaders? Obviously I agree with Tony (Abbott’s) views, partly because I helped shape them. Australia is a nation of immigrants and we will continue to require immigrants in the future. But immigration requires adequate infrastructure to support a larger population, and I think we are falling down in that regard. Australians will support higher levels of immigration if they believe
What are your thoughts on the political climate in Australia at the moment and the issues we face?
With so many politicians starting out in law, many YLJ readers could be MPs in the making – and just not realise it. So just what kind of political leader would you be?
Yo u n g L aw y e r s J o u r nal
A. Give it a kiss and hope that someone pulls out a camera
So far they’ve done neither. I would let them make up their mind about what they want to do. I suspect that they have seen politics so closely that they may perhaps not want to go into it, but in the end it’s about what they want to do and we support that whatever it is. DAISY DARVALL
Law Graduate, Corrs Chambers Westgarth
What impression do you want to leave with people? A. That you are a real person
B. That women like you (and your body)
B. Try and give it a high five, throw it in a stroller and win the 100m sprint while pushing it
C. That you’re a good manager, really, despite what people say . . . You’re popular as well, right?
C. Teach it basic Chinese foreign policy
D. Hand it back to its parents and check whether they have a trust fund set up for it
D. That you have the full support of the people in your firm
What do you think of climate change?
$5000 lands in your lap. What would you do? A. Give it to the Western Bulldogs
A. Unless we have consensus we can’t do anything, so we should ask a mum and dad on the street if they care about it.
B. Claim it as a tax rebate
B. I’m not sure it exists, I will agree with people if it’s in my interest.
C. Spend it on an overseas trip
D. Invest it in your business
C. It’s the biggest challenge we face, but someone else can deal with it in 3 years.
D. It’s time to drag the deniers along kicking and screaming, even if that means that others aren’t too fond of you
What is your position on unlimited access to the internet?
Read this list of phrases. Which do you like the sound of? A. Moving forward
B. Stop the boats
C. Working families
D. Straight talking
A. We should be able to access it faster, and it doesn’t matter how much it costs.
B. The private sector will give us faster internet, though I don’t understand how.
C. We should take the lead of the Chinese and ensure that that rubbish never reaches our shores
D. It’s a free country, and if there is a market for filth, who cares?
Cs = Kevin Rudd Ds = Malcolm Turnbull
What type of politician are you?
You are handed a baby. What is your instinct telling you to do?
Would you encourage your children to go into law or politics?
Results As = Julia Gillard Bs = Tony Abbott
that the government is in control of what’s going on. By contrast, when the government is seen as not being in control it tends to lead Australians to be more sceptical about immigration, which is undesirable. The thing about the Howard years was that, despite what is said about “turning back the boats”, we had the highest levels of immigration to Australia up until that stage, which I think is because there was confidence among Australians who saw the government as being in control of it.
“I don’t get too carried away by what the media says, whether good or bad. It can be assured that in a longer life in politics you’ll get both.” – Kevin Andrews
Australia faces a number of challenges including demographic change and population ageing, specifically, less people in the workforce compared with dependants. Beyond that, the obvious changes and challenges: in terms of the economy, I’m not sure that the world is “out of the woods”. The combination of those two things will radically colour what goes on here and internationally for the next few decades.
g o ld e n gav e l
Young Lawyers Golden Gavel Competition Victoria’s second annual Golden Gavel Competition was a runaway success, with 13 young lawyers stepping forward to display their golden gift of the gab in front of a sell-out crowd.
he Golden Gavel is a public speaking competition that sees young lawyers from across Australia represent their firms before an audience of legal professionals. The winners from each state and territory Golden Gavel go head-to-head in their bid to secure the coveted title of national Golden Gavel champion. This year’s Victorian Golden Gavel was held on 18 August at the Exchange Hotel. The competitors were given 24 hours to prepare an entertaining presentation on such topics as “Cousins & Tigers & Akers: Oh my! Being a sportsman’s lawyer” and “Office politics: why anything that goes into the fridge should be labelled”. A sell-out crowd of members of the profession turned out to enjoy the spectacle and were not disappointed. The YLS was especially proud of the fact that despite being in only its second year, this year’s Victorian competition attracted the highest number of competitors out of all of the participating states. MC, barrister and comedian Rohan Hoult and the expert panel of judges– Supreme Court Justice Betty King, LIV president-elect Caroline Counsel and 2009 winner of the Victorian Golden Gavel competition and the People’s Choice award at the national Golden Gavel competition, Lachlan Clancy – provided as much entertainment as the competitors themselves. The winner of this year’s competition was Athol Birtley, from Allens Arthur Robinson, putting a unique spin on the topic “Upwards delegation: a how to guide”.
ALL SMILES: MC Rohan Hoult, with judging panel members Justice Betty King, Caroline Counsel and Lachlan Clancy
WINNER: Athol Birtley
Victorian competition results 1 – Athol Birtley Allens Arthur Robinson 2 – Nick Musgrove Minter Ellison 3 – Teena Zhang DLA Phillips Fox
Other competitors Kim McFarlane Wakefield & Vogrig Lawyers Roland Muller Parke Lawyers Tasman Fleming John R. Buman & Co Laird Macdonald Maurice Blackburn Tom Storey Herbert Geer Yvette Zegenhagen Cornwall Stodart Lawyers Thomas Barry Corrs Chambers Westgarth Caroline Mills Lander & Rogers Sam Tovey Galbally & O’Bryan Lawyers Taboka Finn Australian Government Solicitor
The YLS would like to congratulate all the young lawyers who competed, the judges and the firms who supported their entrants throughout the competition. NICOLA TAYLOR
Co-chair YLS Professional Development Committee & Lawyer, Russell Kennedy JONATHAN ELLIOT
Co-chair YLS Professional Development Committee & Lawyer, Gadens
RUNNER-UP: Nick Musgrove
THIRD PLACE: Teena Zhang
Yo u n g L aw y e r s J o u r nal
g o ld e n gav e l
Yo u n g L aw y e r s J o u r nal
r e gi o n al p e r s p e c t iv e
Go bush, young lawyer – it’s worth it W In a regional city you get to know your clients, avoid the peak hour commute and can still easily get to the big smoke.
orking in regional Victoria was an easy choice for me.
I was a country girl to start with, having grown up in Rochester, and I returned to Bendigo after completing a Bachelor of Commerce/Law (Honours) at Deakin University in Geelong.
I still have family in this area, so that made the decision to practise in the country somewhat easier for me than it might be for other graduating lawyers. But I made a conscious decision to work in Bendigo at the end of my studies. I returned to Bendigo to complete my articles at John R. Buman & Co. a firm at which I worked during my school holidays and university holidays to gain experience in law. It was an incredible learning curve when I started my articles. It really hit home just how different the actual practising of law was from the studying of law. But I think there were a lot of benefits in being based in regional Victoria. A huge part of that for me is being part of a smaller community, and not just professionally. There are opportunities to get involved in community groups and volunteer for organisations, sit on boards and the like. I think it’s easier to get involved in the community in the country because of the smaller population. It’s easier to get to know people, which means you have the opportunity to develop really good working relationships. Word of mouth works wonders in the country.
Then there are the things that seem small, but that make my day-to-day life a little easier, the main one being travel time to get to work. I haven’t worked in Melbourne, but I understand from colleagues that one of the worst parts of their work is the commute into the city in peak hour. In Bendigo, home is about 10 minutes from my office. 14
There’s also less pressure in terms of billable hours than in large firms in Melbourne. On top of all that, it’s really not that far to Melbourne. I think all these things make Bendigo a really attractive place to be. I worked with John R. Buman & Co. for nearly eight years and in mid-2008 decided to take the plunge and practise on my own. It has been an amazing two years. The hardest thing I have found is managing that elusive work/life balance. I work long hours, and because I’m a newly started sole practising solicitor I haven’t felt able to take leave or holidays yet. That aspect of owning your own practice is probably the hardest. On the other hand, all this hard work is for myself. I don’t have to answer to anyone or have the pressure of meeting billing quotas, and it really makes a huge difference when you’re putting in those hours for yourself. I think it’s a common sentiment among business owners – long hours and hard work are worth it when it’s your own business that you’re building up. You can decide who you want to work for and when – and really, it is up to you how hard you work. You’re also able to foster more personal relationships with clients when you’re working for yourself because your time is your own to manage. I get to really see the ways that I’m helping people, which makes the job extremely rewarding, especially given it’s a smaller community that I’m part of and that I’m supporting. Nurturing those relationships and feeling that I’m really helping people means my work is very satisfying for me. MICHELLE O’SULLIVAN
Yo u n g L aw y e r s J o u r nal
Two young lawyers see their profession from a new perspective.
ave you ever considered leaving your job as a lawyer to work as a judge’s associate? Sharyn Broomhead and Katie Hamilton did. Having spent some two years working for a top-tier law firm, the two young lawyers took up joint associateships with the President of the Court of Appeal, Justice Chris Maxwell. Both had decided that commercial law was not for them and sought some breathing space to consider what their next career move might be.
different styles of advocacy that barristers bring to court changed Sharyn’s view that the Bar is reserved only for those with commanding, boisterous personalities.
So what does the work of a judge’s associate entail? Although much time is spent in court listening to barristers’ submissions, associates are also required to engage in a great deal of substantive legal analysis. Justice Maxwell often asks his associates to analyse relevant case law, comment on parties’ submissions and analyse the legal issues being grappled with.
Katie and Sharyn have been struck by the cerebral nature of the judge’s role and value the opportunity to help the judge unravel complex issues. Although Sharyn and Katie both feel their ability to articulate their views has improved dramatically during their associateships, they are still impressed by Justice Maxwell’s ability to “put beautifully in two sentences something that would take anyone else five pages to express”.
The judge���s associate is essentially the gateway to the judge, so there is an administrative aspect to the role that allows associates to see how the court works “from the inside out”. This removes the mystery from the court and the mechanics of its processes. About half the associate’s time is spent responding to telephone and email queries, assisting self-represented litigants and compiling case law and documents for the judge to consider.
Most judges value the opportunity to discuss the cases before them with their associates. Katie and Sharyn particularly enjoy the “robust discussion” that takes place in chambers. They feel that not only does Justice Maxwell find it useful to consider his associates’ views on an issue or appropriate outcome, but it has made them both more confident about challenging his Honour’s opinion or taking a contrary view.
CHALLENGING: Judge’s associates Katie Hamilton (front) and Sharyn Broomhead relish their working environment. Yo u n g L aw y e r s J o u r nal
For young lawyers considering a career at the Bar, an associateship may provide what Sharyn and Katie describe as “perfect training”. Observing the
Both associates have developed professional networks with barristers that may prove useful in the future and which have opened their minds to the multi-faceted nature of the role, which they have learnt encompasses not only court appearances but also giving advice and pro bono assistance.
Both have found Justice Maxwell’s chambers to be a very friendly working environment, lacking any of the pomp and ceremony that one might expect. Although their relationship with Justice Maxwell is professional, they find him a relaxed and easy-going person whom they can joke and have fun with and are on a first-name basis with. An associateship is certainly intellectually demanding, but can provide young lawyers with a view of the legal system that they would not otherwise have. Sharyn says that her legal thinking is challenged every day in her role as an associate because she is required to really consider what the law says and what it in fact should say. So if you are a young lawyer looking for a different career alternative, why not consider a judge’s associateship? It can certainly equip you with skills, both legal and non-legal, that may open many doors in the future. MITALI BRAVO
Lawyer, Lander & Rogers
Inside perspective: working as a judge’s associate
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The days are at last starting to lengthen, so it’s time to push thoughts of pesky clients from your mind and relive the joie de vivre of your university years with the aid of these tips.
Leaving the office behind this holiday season Y oung lawyers, summer is almost upon us. The only bags you should be sporting are those you are wheeling through an airport, not those under your eyes. Nothing reminds us more of our carefree uni days than the sweet taste of alcohol. Fancy a tipple? Try Pimm’s and lemonade or a Moscow Mule.
HOLIDAY Do you remember when you planned uni around the availability of cheap flights? Quench your frustration at the Supreme Court’s lack of trolley access by booking a holiday instead.
Best Rooftop Bars in the CBD Rooftop Bar – Curtin House, 252 Swanston Street
Hot (and cheap) summer destinations include:
Madame Brussels – Level 3, 59 Bourke Street The Deck – Level 2, The Waterside Hotel, 508 Flinders Street (enter via Mercantile Place) Palmz at The Carlton – 193 Bourke Street
Moscow Mule recipe Fill a highball glass with ice One shot vodka One shot lime juice Top up with ginger beer Garnish with a mint leaf and wedge of lime WARDROBE OVERHAUL If you want to reek of the loved-up uni vibe, fork out some cash. Recessionista fashion is sooo last year.
Avoid lunching anywhere that costs $20 and max out your credit on some travel instead. Anglesea – The new Portsea. Bury yourself in the sand and burn away your office tan. If you do end up in Portsea, make sure you know the ferry timetable better than you know the opening hours of the court registries. This way if you spot your partner at the beach you can make a quick getaway. Bali – It is the destination for young cashed-up professionals. Queenstown, New Zealand – Bungy jumping should shake any “I’m not working” guilt right out of you. Vietnam – Tailor your suits in Hoi An before heading to Nha Trang to practise relaxation in a hammock. Visit Vinpearl Amusement Park to get your adrenaline pumping instead of an arbitrary deadline being the cause of your heart palpitations.
Instead, try to emulate the style of those indie-band kids receiving all the airplay on Channel V. Remember to dress as if you are going to a festival.
If you don’t yet have travel plans because you haven’t left the confines of the 1200m2 on Level 50, get your secretary to check out:
Ladies, massage out that RSI by spraying on a can or two of fake tan before pulling on the short shorts.
www.needitnow.com www.expedia.com www.wotif.com www.lastminute.com.au
Gentlemen, need to smarten up? Throw on a pair of rolled-up chinos with some plimsolls (or boat shoes) and a nautical tee. Did someone say Portsea polo? BOOKS Many of us haven’t read anything apart from High Court judgments this year. Draw on uni sentiments by reigniting your love of reading with these: Self-help The Art of Happiness, by His Holiness the Dalai Lama The Happiness Trap, by Dr Russ Harris MD The Power of Now: A Guide to Spiritual Enlightenment, by Eckhart Tolle On-trend
Oh, and if your client persists with that January deadline, you can always accumulate your leave and look forward to a European summer! Your peers will be envious as you get to relive the glory of your uni days once more. And don’t forget . . . if you still can’t lose those bags under your eyes, keep a pair of designer sunnies on hand. Happy New Year 2011. MICHELLE BATSAS
If you’re missing the office The Firm, by John Grisham The Pinstripe Prison, by Lisa Prior Hell Has Harbour Views, by Richard Beasley Yo u n g L aw y e r s J o u r nal
Tomorrow, When the War Began, by John Marsden
L I V m e mb e r s hip b e n e fi t s
Make the most of your membership When you’re just starting out, the LIV can help you as you build your legal career. Through the power of association, you can enhance your knowledge and networks, gain a competitive career edge and take advantage of special member offers from LIV Privileges.
LIV Bookshop The LIV Bookshop is Australia’s only dedicated legal bookshop, stocking a comprehensive range of legal, practice management and general interest publications, including student texts, legal forms and hard-to-find titles. LIV members save 10 per cent on all purchases. Browse the full range and order online at www.liv. asn.au/bookshop or visit the bookshop at 470 Bourke Street Melbourne.
WhatsOn @ the LIV CPD
Gain practical knowledge whilst completing your continuing professional development requirements with the Young Lawyers Professional Education Program. We bring together a range of experts every Tuesday to explore current legal issues in substantive law or compliance. TUESDAY 5 OCTOBER YL Program: Practice and Procedure in the Civil Jurisdiction FRIDAY 8 OCTOBER Property and Environmental Law Conference TUESDAY 12 OCTOBER YL Program: Introduction to Mortgages TUESDAY 19 OCTOBER YL Program: YL 2010 - Interlocutory Injunctions, Mareva Orders & Other Applications THURSDAY 21 OCTOBER Not for Profit Conference TUESDAY 26 OCTOBER Information Technology for Lawyers Conference TUESDAY 26 OCTOBER YL Program: Tips and traps of Residential Conveyancing THURSDAY 28 OCTOBER Strategic Networking: Creating Networking Opportunities TUESDAY 9 NOVEMBER YL Program: Wills, Drafting and Testamentary Trusts SATURDAY 13 NOVEMBER Practice Support Conference TUESDAY 16 NOVEMBER YL Program: Negotiating with Police and Plea Making in the Magistrates Court FRIDAY 19 NOVEMBER Family Law Conference TUESDAY 23 NOVEMBER YL Program: Preparing for Interlocutory Applications in Supreme & County Courts
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FRIDAY 26 NOVEMBER Bookkeepers Trust Recording Workshop
The Young Lawyers’ Section brings you an exciting range of social, networking and career-based events throughout the year. Mark these dates in your diary now and read your monthly lawBytes eNews for information updates, speaker details and more. MONDAY 4 – SUNDAY 10 OCTOBER Regional and Suburban Young Lawyers’ Week wednesday 13 OCTOBER Women in Leadership Lunch FRIDAY 22 OCTOBER Bond with the Bar
Get The Weekend Australian and the Sunday Herald Sun for just $3 LIV members can now get home delivery of The Weekend Australian and Sunday Herald Sun for 52 weeks at the price of $3 per week (plus GST), a saving of $1.80, billed monthly via credit card. For more information visit www.liv.asn.au/privileges
THURSDAY 28 OCTOBER LIV President’s Leadership Lunch with Sally McDonald, CEO, The Oroton Group Friday 5 November LIV Legal Awards Presentation Lunch WEDNESDAY 10 NOVEMBER Big Brother is watching: censorship and privacy in modern Australia MONDAY 15 NOVEMBER LIV Legal Fun Run and Power Walk FRIDAY 26 NOVEMBER Young Lawyers’ Section Christmas Party THURSDAY 2 DECEMBER LIV Members Christmas Party
For more member benefits visit www.liv.asn.au/members 18
For the full program of upcoming CPD activities and events visit www.liv.asn.au/whatsOncalendar Yo u n g L aw y e r s J o u r nal
Nalini Moore, Mahlab firstname.lastname@example.org
Dear Career Doctor
am one of the lucky ones who managed to secure a traineeship just before the global financial crisis (GFC). I have been with my firm (a mid-tier firm in Melbourne) for over two years now and the bulk of my experience has been in banking and finance. I know my firm has reviewed its hiring requirements since the GFC, and I have heard that a lot of other firms (large and small) have done the same. Some of my friends have tried or are trying to move from one job to another, with varying success. Now that the legal job market seems to be improving, I am also contemplating a move in the near future and would like to understand what law firms are looking for when hiring junior lawyers, what practice areas are busy and any other tips you could give me on the post GFC legal market. ON THE LOOKOUT
Dear On the Lookout The financial crisis caused all law firms to closely examine their businesses and most have made, or are continuing to make, some fundamental changes. Firms have become leaner and more profit-driven; international law firms have entered the Australian market and many Australian firms have expanded nationally; and there is a greater emphasis on a firm’s “people strategy” in which young lawyers with potential to progress to partnership are identified early. During the GFC some firms implemented recruitment and remuneration freezes and any new hires were made only with an approved business case. The good news for you is that the tide has well and truly turned since then, and many firms are now actively recruiting. Earlier this year, the demand increased for mid- to senior-level lawyers with experience in construction, energy/resources, property, planning and environment, workplace relations and litigation/
insolvency. This activity was led by the mid-tier firms and, more recently, the top-tier firms. Junior lawyers who have not yet developed a marketable area of expertise still have difficulty finding alternative roles, and this may be the reason your friends have had varying degrees of success in their job hunt. More recently, practice areas to have recorded increased recruitment activity include corporate law (in particular, public mergers and acquisitions, and private equity work), commercial law and, of most interest to you, banking and finance. Recruitment of top talent is once again a priority for firms regardless of their size. Now more than ever firms are looking to fill their employee ranks with lawyers who display “EI” (emotional intelligence) as well as “IQ”. Technical skills and strong billings are not enough. Recruits need to be able to demonstrate a commitment to work with the firm’s values. The firms are looking for lawyers who want to work for them and with them. Outside activities, other interests and work attitudes are being looked at closely to determine what interests and motivates individual lawyers. Like you, many lawyers have been waiting patiently for the market to improve before investigating their options. Now that it has improved, it is likely that there will be significant movement over the next year. My advice to you is to make sure your résumé is up to date and that you have made contact with a reputable recruitment consultant, so that when the right role that suits your type and level of experience becomes available, you will be ready to apply for it. All the best with your imminent move. CAREER DOCTOR
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P h o t o G all e ry trivia night
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For career advice and support, refer to Career Doctor or visit www.mahlab.com.au Mahlab - Supporting young lawyers 20
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