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New Directions – 2013

review@lawcouncil.asn.au | www.lawcouncil.asn.au

The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.

Jan–Mar 2013


Cover shot: New Directions – 2013

IN THIS issue

JAN-MAR 2013 PRESIDENT'S MESSAGE

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MESSAGE FROM THE ACTING SECRETARY-GENERAL

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Bringin the Profession Together

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Q&A with the Law Councils newest Executive Members

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80 Years of History: As Australia’s Peak Body for the National Legal Profession – Interesting Facts

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Law Council Honours the Memory of a Distinguished Member of the Legal Profession

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Legacy of Pioneering Indigenous Land Rights Activist Shines through Scholarship Recipients

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Finding the Line on Data Retention

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Highlights from Précis

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New South Wales Law Society: Flexibility Report

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Multiple Pathways to Indigenuos Recognition

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EDITORIAL ACKNOWLEDGEMENTS & CREDITS

International News: From Peacekeepers to Slave Traders – An Australian’s Journey to the United Nations and Beyond

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Managing Editor | Vanessa Kleinschmidt

National News

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Contributing Editor | Michael Anderson Editorial Assistant | Giesel Manalo

DIVISION OVERVIEWS

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SECTION OVERVIEWS

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EVENTS CALENDAR

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www.lawcouncil.asn.au © The Law Council of Australia No part of this publication may be reproduced without the specific written permission of the Law Council of Australia. Opinions are not the official opinions of the Law Council of Australia unless expressly stated. The Law Council accepts no responsibility for the accuracy of any information contained in the Law Council Review and readers should rely upon their own enquiries in making decisions regarding their own interests.


PRESIDENT’S message

Welcome to the first edition of Law Council Review for 2013. As the 61st President of the Law Council of Australia, it is my great honour to take on this prestigious role— particularly as the organisation celebrates its 80th anniversary. In March it was announced I will be taking up a position of Vice President of the Fair Work Commission. While I am very honoured to receive this appointment, I am saddened to leave the Law Council prior to the conclusion of my Presidential term. I officially take up my appointment on 4 June, 2013, and will continue in my duties as President until this date. I will utilise the remaining months as President to ensure the Law Council continues to pursue the agenda set down for 2013. Law Council President-elect, Mr Michael Colbran QC, will be assuming the duties of President following my departure. I am delighted to abdicate this role to such a capable and experienced practitioner. I have the utmost confidence in Mr Colbran’s abilities to continue the important work of the Law Council for the remainder of 2013 and into 2014. In the coming months I will be working with Mr Colbran and the Law Council’s Executive to ensure the changeover process is as seamless as possible and to ensure the organisational agenda remains on target. My first three months in the role have been enjoyable and also challenging. In particular, I have enjoyed sharing in the many success stories of the Australian

legal profession such as the John Koowarta Reconciliation Law Scholarship, which I had the pleasure of presenting in March. Other highlights include attending the United States Conference of Chief Justices; attending the Mahla Pearlman Oration and Presentation of the Mahla Pearlman Award for the Young Environmental Lawyer of the Year; addressing the Western Australia Summer Law School in relation to national legal profession reform; as well as productive meetings with overseas counterparts from legal representative bodies such as the Law Society of England and Wales and the International Bar Association. In September this year the nation will go to the polls. As the industry organisation charged with representing the interests of the legal profession at the national level it is crucial for the Law Council to engage with Australia’s political parties on a number of key issues. One of these key issues is access to justice. At the recent National Access to Justice and Pro Bono Conference in Melbourne, I had the privilege of delivering the opening plenary. Australia is still very much at the cross roads when it comes to access to justice issues and this continues to be a high-priority for the Law Council. Whether it be increases to federal court filing fees or the perilous state of legal aid funding, Australia is facing significant challenges in this area. The advocacy carried out at the Law Council does not however begin and end with federal elections. There are numerous projects and policy areas outside of this context

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that I am aiming to advance in the next two months and which will be continued by the incoming President when I conclude my term in June. The recruitment and retention of female lawyers is one of these priority areas. In 2011, the Law Council launched its Strategic Framework for the Recruitment and Retention of Women Lawyers, which is aimed at exploring why women leave the profession and what can be done to retain their talents. A key tranche of this Framework is the National Attrition and Re-engagement Study (NARS). NARS will obtain quantitative data and confirm trends in progression and attrition rates of female lawyers and will also undertake research to examine the qualitative reasons behind these trends. The objective of conducting the NARS is to produce a report, including recommendations for legal associations and law practices, outlining practical measures which can be implemented to address the causes of high attrition rates among women lawyers, and re-engage women lawyers who have left the profession. I am continuing to work on the implementation of the Law Council’s International Strategy to advance the interests of the profession internationally, which I consider to be a key function of the Law Council’s advocacy work. In line with the strategy, I am focussing on building on the established relationships with key law associations. In 2013, I have participated in delegations to Hong Kong, Malaysia and the United States that have helped further this work. In the US, for example, I held positive talks with the American Bar Association in relation to establishing a joint taskforce with Australia and other countries to consider international trade in legal services.

Another key focus for the Law Council in 2013 is human rights. The Law Council has a strong track record in policy development concerning national and international human rights issues. In the coming months I will continue to work towards furthering the Law Council’s work on slavery and human trafficking. I had the pleasure of speaking on this subject at the recent 6th World Congress on Family Law and Children’s Rights. The Law Council also welcomed the recent passage of significant amendments to the Criminal Code Act 1995, which strengthen laws to criminalise slavery and human trafficking. The exploitation of vulnerable men, women and children through these abhorrent practices is something I believe the legal profession has an important role to play in preventing and redressing. During the remainder of my term I will also be seeking to continue to strengthen and encourage the important position of the Sections within the Law Council. The Law Council of Australia has five specialist sections – Business Law, Family Law, Federal Litigation, International Law and Legal Practice. The Sections administer a range of activities on behalf of the Law Council including the preparation of submissions, professional development events and networking opportunities. The Sections are the lifeblood of the Law Council and are absolutely vital to its ongoing success in the area of policy development and advocacy. Throughout the year the Law Council Review will endeavour to cover many of the important policy areas of significance to the Australian legal profession. For the first edition of 2013 the Law Council Review is covering topics including data retention, environmental law and commemorating the 80th anniversary of the Law Council with a brief look at some interesting moments in the Law Council’s history.

I am confident 2013 will be a challenging and rewarding year. For me, law is a giving profession and one in which I am very proud to be a part. I would like to thank the Law Council for making my Presidential tenure such an enjoyable and memorable experience. In particular, I would like to acknowledge the Law Council Executive for their outstanding work in helping set and drive the agenda of the organisation; the Law Council Secretariat for the unwavering support provided in implementing the important work demanded of the peak organisation representing the legal profession nationally; and finally the Sections, committee members and specialist working group members—the voluntary work conducted by these practitioners for the betterment of the profession and broader Australian community, as representatives of the Law Council, is nothing short of exceptional. Thank you—it has been an honour and a privilege to serve as Law Council President for this all too short time in 2013.

Joseph Catanzariti President


∫rom the

ACTING SECRETARY-GENERAL AS ACTING SECRETARYGENERAL OF THE LAW COUNCIL OF AUSTRALIA I EXTEND TO YOU A WARM WELCOME TO THIS FIRST EDITION OF THE LAW COUNCIL REVIEW FOR 2013. I have been on a steep learning curve since assuming the role of Acting Secretary-General in January this year, and I am grateful for the support from the Law Council’s President, Executive, Board, Secretariat and Sections for easing my way into the role. While I had been long aware of the depth of the policy work undertaken by the Law Council’s Policy Divisions, during my short time here I have been astonished by the volume and quality of the submissions to Government produced by the Law Council’s Sections. The Law Council’s five specialist Sections - Business Law, International Law, Legal Practice, Federal Litigation, and Family Law - administer a range of activities on behalf of the Law Council including the preparation of policy submissions, professional development events and networking opportunities.

Every year the Sections produce the bulk of the Law Council’s policy submissions across a variety of areas of law. Of the 149 submissions produced by the Law Council in 2012, 56 were completed by the Business Law Section on important issues including tax reform, corporations law and trade practices law. A further 38 submissions were produced by the other Sections.

A recent example of this took place at a New York Chapter event held in February this year. The Chapter hosted a presentation from one of the world’s leading experts on human trafficking, Dr Anne Gallagher AO, who reflected on her experiences within the United Nations human rights system. A copy of Dr Gallagher’s presentation is available in this edition of the Law Council Review.

The Sections are also an important conduit between the profession and Australia’s federal courts. A clear example of this is the Federal Litigation Section’s work with the Federal Court in producing the Federal Court of Australia Case Management Handbook. This initiative was borne out of the close relationship between the Court and the Section and continues through regular workshops and discussions about case management issues.

The Legal Practice Section undertakes a range of work pertinent to various areas of specialist legal practice and practice management. Of note has been the significant work the Section has carried out in relation to environmental, planning and property law, and in particular through its involvement with the Uniform Torrens Title Act project.

The Family Law Section is the largest of the Law Council’s five Sections with over 3500 members. It is one of Australia’s premier organisations for providing continuing professional development opportunities for family law practitioners. In 2012, over 1800 practitioners participated in 16 professional development events presented by the Family Law Section and the Australian Institute of Family Law Arbitrators and Mediators. Internationally, the Law Council is supported by the International Law Section. A recent initiative of the International Law Section is the establishment of its overseas Chapters. Now operating in New York, London, Tokyo, Bangkok, the UAE, Beijing, Seoul and Hong Kong, the Chapters enable expat Australian lawyers to remain in contact with each other and the Law Council’s work.

The Law Council’s Sections are remarkable not just for the volume and quality of the work they produce, but also for the fact that their work is delivered pro bono. The Law Council’s Sections function for the betterment of the law, the legal profession and the Australian community. I encourage practitioners throughout Australia and from all disciplines of law, to consider becoming a member of one of the Law Council’s Sections. Membership offers a range of benefits including professional development events and networking opportunities. Further information is available at the Law Council’s website.

Martyn Hagan Acting Secretary-General

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BRINGING THE PROFESSION TOGETHER


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FOR A CONFESSED NERDY KID WHO USED TO ENJOY MUCKING AROUND WITH A SCIENCE KIT AT HOME, JOSEPH CATANZARITI’S RISE TO BECOME ONE OF THE AUSTRALIAN LEGAL PROFESSION’S MOST INFLUENTIAL MEMBERS IS A STORY THAT LENDS STRONGLY TO A PASSION THAT HAS FUELLED HIS AMBITION IN A CAREER SPANNING MORE THAN 30 YEARS. But it’s also a story that could have taken a turn in a different direction. “I didn’t have any history with the legal profession, no family connection—nothing,” Mr Catanzariti said about his motivations to join the legal profession. “I’m pure working class—through and through. I grew up, what in 2013 terms, would be described as being pretty poor. I certainly didn’t plan to be a lawyer at the outset. It wasn’t until I received my HSC results that I made the decision [to become a lawyer]. I thought it would be an interesting challenge as it was completely at odds with my working class background and it presented an opportunity to really make a difference.” Now in his thirty-first year of practice, there is little doubting Mr Catanzariti has made a difference in the Australian legal profession. Despite starting out in the broom closet in his first official role as a lawyer—“there wasn’t an office for me at the time. It was a strange experience until they found somewhere for me to sit—with a door,” Mr Catanzariti laughed—he has had a meteoric rise to the upper echelons of the profession. He is a

partner of one of Australia’s leading Law Firms, Clayton Utz, and also a former President of the Law Society of New South Wales. He is regarded as one of the top commercial litigators in Australia—as acknowledged by peers and industry through awards from Best Lawyers Australia, APL 500 and PLC Which Lawyer—with particular expertise in workplace relations and employment law. He has worked on a number of landmark Australia legal cases including Jana Wendt vs. Channel 7 and SRA vs. earthline. “It has given me a lot of opportunities,” Mr Catanzariti said of his career in the legal profession. “I take the fact that my late parents made a very big decision to migrate to Australia after the Second World War. Never a day passes when I don’t thank them because in Australia we are a lucky country. My father took an enormous risk to come to Australia. He was extremely bright but never had the educational opportunities that I was afforded. His knowledge of Australian politics was phenomenal and I miss sharing election nights with him.”


In 2013 Mr Catanzariti began another important chapter in his legal career when he became the 61st President of the Law Council of Australia. “It is one of the highlights of my career in the profession,” Mr Catanzariti said of the appointment. “Working as President of the Law Society of New South Wales, given its large membership of about 26,000 solicitors, gave me quite an insight into to the legal profession in Australia and the issues that affect it.” It was this insight that drove Mr Catanzariti to increase his commitments to the Law Council of Australia, which culminated with his election to President in 2013. “Any President is but a custodian for a year,” said Mr Catanzariti of his appointment. “You don’t come in and shake up the place in one year—you’ve really got to be consistent with the messaging for the entire profession. You are fortunate to be the custodian, but it is not about you. The President is afforded a lot of trust by all members of the legal profession to carry out the legal debate.” Mr Catanzariti’s term as President comes at a particularly unique time for the Law Council, which celebrates its 80th anniversary. It also coincides with a Federal Election—an event Mr Catanzariti said presents an excellent platform on which to explore some of the most pressing issues affecting the profession and Australian community. “In a Federal Election year you’re even more focussed,” Mr Catanzariti said. “It’s very important that you are inclusive to all practitioners and it’s not simply just a particular sector that is discussed—you’ve got to look at what issues affect the entire profession.” “You can use phrases, but you’ve got to deliver the phrases beyond the phrase,” Mr Catanzariti continued. “We can all use the phrase ‘access to justice’ – that will mean a lot of different things to a lot of different people. What you’ve got to try and do is drill into what is ‘access to justice’ and what are the key issues that need to be debated during that cycle? You are not a one person band. You are well equipped by an Executive, Directors, specialist Sections and a hard

Mr Joseph Catanzariti and Mr Stephen Younger, Immediate Past President of the New York State Bar Association

working secretariat of great policy people—all of which is one big family. That’s the engine and it’s why the Law Council succeeds.” Mr Catanzariti has identified five key priorities for his tenure as Law Council President in 2013 including access to justice, human rights advocacy, international engagement, strengthening the position of the Law Council Sections, and addressing the high attrition rates of women lawyers. Access to justice in particular will be a key focus of Mr Catanzariti. The Law Council has been a consistent and vociferous critic of federal and state governments for their continual cuts to legal aid funding in Australia. It contends that Legal Aid Commissions, community legal centres and Indigenous legal services have been chronically underfunded, particularly in the Commonwealth area, since 1996, when the so-called “Commonwealth/state divide” was introduced. Figures point to just how deep the cuts have been: in 1996 the Commonwealth Government’s share of Legal Aid Commission (LAC) funding was 55 per cent—today it sits at just 35 per cent. Perhaps the starkest results of these cuts manifested itself recently in Victoria. Two serious trials in the State’s Supreme Court have been adjourned due to the

inability of Victorian Legal Aid to provide instructing solicitors. Victoria Legal Aid (VLA) declined to provide an instructor for more than two half days of each trial in accordance with new policies introduced in January, leaving the barrister in each case having to manage all of the tasks usually undertaken by the instructor. The Law Institute of Victoria and Victorian Bar—constituent body members of the Law Council— contend the VLA rules are a result of chronic underfunding: that the legal aid body simply does not have the means to provide the services needed. “Not everybody who commits a crime is convicted,” Mr Catanzariti said of the Victorian legal aid crisis. “If that were the case then we wouldn’t need a criminal justice system. Imagine a world where legal representation is denied because it’s simply unaffordable. This recent example in Victoria is extraordinary. When you’re charged with a criminal offence you must have justice. It’s fundamental to our whole system and not being able to even get a legal aid lawyer because of a funding cut issue is really extraordinary. It can’t be allowed to happen.” “Access to justice means the average Australian must be enabled to run their legal rights—whatever they are,” Mr Catanzariti contended.


Mr Catanzariti added that advocacy in this area was not about a money grab for lawyers. “In consultation with the Law Council’s Access to Justice Working Group, there will be further dialogue occurring about creating a more constructive representation of the Law Council’s advocacy on this issue,” Mr Catanzariti said. “There are some things I have picked up during my trip to the US as part of the annual US Conference of Chief Justices meeting. Our US colleagues are doing some very clever things in this space—it might be the same spend but it’s about how they spend it.” In 2011, the Law Council launched its Strategic Framework for the Recruitment and Retention of Women Lawyers. The aim of the initiative is to explore why women leave the profession and what can be done to retain their talents. One of the four tranches of the Framework is to undertake a national study to explore the reasons why women are leaving the legal profession at a disproportionate rate compared to their male colleagues. Mr Catanzariti said the National Attrition and Re-engagement Study (NARS) will provide qualitative figures of the attrition of women lawyers in Australia and help guide future policy directions on how the profession can better retain its female members. “The Law Council has the opportunity, as the national body, to do something quite different,” he explained. “Everybody accepts that there is an attrition problem, but what has not been dealt with properly is the retention issue. There have been a lot of studies over the years, but not one that has specifically addressed the issues the Law Council will be covering in this study. There’s going to be a lot of ‘ifs’ and ‘why have you left?’ The idea is to figure out how we can increase retention.” Anecdotally, it’s believed that

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women are leaving the profession for a multitude of reasons. Issues such as pay, caring responsibilities and difficulties in rejoining after a period of absence are noted as critical factors in the attrition and retention of women lawyers.

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“We’re a democracy—we can’t have justice denied. It is clear there are problems all over the place whether it be legal aid funding or whether it be the issue of rising federal court filing fees. There are problems everywhere with citizens having appropriate levels of access to justice.”

Mr Catanzariti points to startling statistics when highlighting the need for the type of analysis NARS will provide. “Since 1993 the number of practising female lawyers grew by 288 per cent in New South Wales alone,” Mr Catanzariti said. “This statistic is largely reflected across the country. It’s quite a remarkable phenomenon—the feminisation, if you like, of the profession.” “What I hope the study will achieve is the re-engagement of women lawyers,” Mr Catanzariti said in regards to the NARS outcomes. “This is not a one year project. The re-engagement and what we then do about ensuring better outcomes in this regard will likely be a significant issue for the Law Council for many years to come. It’s a very big project that has been embraced entirely, and unanimously, by the Directors of the Law Council. Mr Catanzariti’s desire for diversity in the profession extends beyond his desire to see greater representation of women at certain points in their career. As the son of Italian immigrants, he is all too familiar of the term WASP (White Anglo Saxon People) as it relates to the legal profession. “We are at stage one where we accept the fact we have women in the profession and a lot of work is being done to ensure they are to participate in the profession to the fullest extent possible—this is work I’m fully supportive of,” Mr Catanzariti said. “But the next level is going to be understanding diversity beyond the sexes. When I went to law school, I think there was one Asian student. There is little doubt that the profession entry point has changed dramatically. However, we are not seeing ethnic diversity transfer through the ranks of partnership, the bar or the judiciary at this point. There are some exceptions to this rule, but there are not enough. A lot of people who have gone through law school in the last 30 years are from diverse backgrounds, yet this

This is not a one year project. The reengagement and what we then do about ensuring better outcomes in this regard will likely be a significant issue for the Law Council for many years to come. It’s a very big project that has been embraced entirely, and unanimously, by the Directors of the Law Council.


Mr Joseph Catanzariti and Ms Laurel Bellows, President of the American Bar Association. is not represented in the senior roles of the profession. I previously made this comment to Lawyers Weekly: ‘How many Wongs or Catanzaritis do you see in judicial office?’ That’s the reality of the situation.” Having been exposed to the inner workings of the Law Council for five years now as a member of its Executive, Mr Catanzariti is eager to extol the virtues of the organisation to the broader profession. He pointed to a desire to see the Law Council work harder to demonstrate its relevance to all legal practitioners, irrespective of where they practise or the type of practice in which they operate. So how is the Law Council relevant to the average practitioner? “It is relevant to all practitioners because the product of the Law Council will affect your practise,” Mr Catanzariti answered. “There will be issues that are relevant because we all do national work—the day-to-day work will have some national linkage.” Mr Catanzariti said it was important for the Law Council ‘family’ to present a united front to this end. In particular, he will seek to strengthen and encourage the important position of the Sections within the organisation. Five

specialist Sections—the Family Law Section, Business Law Section, Federal Litigation Section, Legal Practice Section and International Law Section—administer a range of activities on behalf of the Law Council including the preparation of submissions, professional development events and networking opportunities. “It is really important that the Law Council funds and maintains the Sections—they are the ones driving specific policy in their specialty areas of law,” Mr Catanzariti said. “Everywhere I travel that is what the average practitioner will be raising with me: the work of, for example, the Business Law Section. The Sections were not there in 1933 when the Law Council came into existence. They came in about 30 years ago when recognition occurred that the best way of operating in the legal profession, at the national level, was to create these pillars. The work of the Sections is fundamental to the day-to-day practice of lawyers. We need to profile, even further, the work of our Sections.” “It’s very impressive for me to see people who are generally busy practitioners, at no cost, genuinely concerned about the law,” Mr

Catanzariti continued. “Whatever the issue is, these practitioners live and breathe specialist areas of law and are pointing out to the politicians and the community where problems exist and how laws can be improved. The Law Council has developed a strong reputation over the past 80 years for its work in advancing the Australian legal profession on the international stage. It’s a reputation Mr Catanzariti not only desires to maintain but expand. “It’s important that when the President is travelling overseas that we have a focus on outputs,” he said. “The trips that we’ve had this year have delivered significant outputs for the profession as a whole. You’ve got to deliver outputs—you can’t simply go to a trip and attend a conference. I’m not keen on going to conferences without the meetings surrounding them that deliver outcomes for the Australian legal profession.” Mr Catanzariti cited the opening of the Hong Kong and Malaysian legal years, which are attended annually by the Law Council President, as an example of how Presidential travel can deliver tangible benefits. With the increasing rise of Asia as an economic powerhouse and what Mr


“The focus on Asia has to be paramount—it’s incredibly relevant to the Australian market,” he added. International arbitration is one area of practice Mr Catanzariti believes Australia can excel at in the international legal services market place. Singapore and Hong Kong currently dominate much of this market space due to geographical advantages, but Mr Catanzariti said there were many benefits Australia could offer to become a significant player in this area. “It is something that is very important to the Australian legal profession,” he said.

“If we can get ourselves positioned correctly, we are an attractive place to have arbitration. We can do things quite cost effectively and we can offer neutral territories.” Mr Catanzariti is not averse to having difficult debates in his term as President. “We have to be out there leading the debate,” he said. “Sometimes that means saying things people don’t want to hear or talk about.” This attitude is perhaps best typified in the weight he has placed on the complex and often emotive issue of human rights. In particular, he has identified the scourge of human trafficking and slavery as a problem he believes Australia needs to take greater ownership of. “It’s one of those issues we don’t talk about,” Mr Catanzariti said. “I was fortunate to recently spend time with the American Bar Association President, Ms Laurel Bellows, who is making a big push in the American context. One thing we pretend we don’t have in Australia is human trafficking. We know now, anecdotally, that it is a problem here. It’s not politically exciting, but it needs to be stamped out. The Law Council can play an important role in leading this debate. Slavery and human trafficking continue to be problems throughout the world and, as Mr Catanzariti pointed out, one Australia is not immune to. It is estimated that worldwide, there are between 12 and 27 million people who are victims of some form of slavery. There is similar variation in the number of people estimated to be victims of human trafficking.

A conservative estimate by the US State Department is that 800,000 people are trafficked across borders each year. UN Women (formerly UNIFEM) and the United Nations High Commissioner for Refugees (UNHCR) estimate that figure to be closer to 2 – 2.5 million people each year. The problem is not unique to any particular country or continent. Even in Australia, there are cases of slavery and people-trafficking reported every year — and those are only the cases that are known to authorities. “It’s an awareness issue first and foremost,” Mr Catanzariti said about combating the issue. “We’ve got to start having quite a heavy debate— we can’t turn a blind eye on this. Australia has got to recognise that if we want a good quality of life for all then the problem needs to be recognised and the community made aware of the issues—including how they can contribute to nullifying the problem.” Passion is the driving factor in Mr Catanzariti’s success and he is bringing his love for the law to his work as President of the Law Council. Whilst describing himself as a mere custodian, he is determined to leave an indelible mark on the Law Council during his tenure—to ensure he not only continues, but contributes to the successes of the organisation. After 80 years of serving the profession on a national scale, he said the Law Council has not only stood the test of time but is continuing to grow in its scope and influence. “There are more national issues affecting practitioners on a daily basis,” he said. “The attribute that is unique about the Law Council is that it brings the entire profession together.” From a personal perspective, Mr Catanzariti is showing no signs of slowing down his professional interests—in fact it’s something he doesn’t envisage he’ll ever stop. “I will be in the law for a long time,” Mr Catanzariti said of his future. “I’m not going to be retiring; I’m not the sort of guy who wants to be sitting on the beach.”

Meeting with New York Chapter of International Law Section of the Law Council of Australia.

“I’ll probably be one of those people that when my calling comes to higher office, which is death, then I’ll be dying in an office of some sort,” Mr Catanzariti said with a laugh. “I can never see myself not working and law will always be a part of my life.”

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Catanzariti referred to as the “Asianisation of our region” in a business and economic sense, he said it was important for the Australian legal profession to foster strong relations within the region. Another key output in the international sector is the establishment of the China Law Week, which will take place in 2013. “China Law Week arose as part of my trip to Beijing last year when I was with the Hon. Dr Craig Emerson on a trade mission,” Mr Catanzariti said. “This was the first business trade mission Dr Emerson had undertaken and he took a diverse group of specialist business people, which included myself as a representative of the legal profession. In discussions with some of our Chinese counterparts, it occurred, particularly with King Wood & Mallesons now having such a strong presence in the region, that a reverse China Law week every second year (once in Australia and once in China) would be a very positive concept for both professions.


Ms Fiona McLeod SC has been a Director of the Law Council since 2010 and practises in trials and appeals in administrative and public law, human rights, commercial and common law. Ms McLeod advised and represented the Commonwealth in the Queensland Floods Commission of Inquiry in 2011-12 and the Victorian Bushfires Royal Commission in 2009-10. She is recognised for her work in human rights matters and is regarded as a pioneer in the field of human trafficking law. In 2011 she was awarded the prestigious Inaugural Anti-Slavery Australia Freedom Award and the Ron Merkel QC Award at the Victorian Bar Pro Bono Awards. Ms McLeod is the Chair of the Law Council’s Equalising Opportunities in the Law Committee and the Recruitment and Retention of Lawyers Working Group, and has previously been a President of Australian Women Lawyers. She is also a member of the Attorney General’s International Legal Services Advisory Committee. Mr Justin Dowd is a member of the Executive of the Law Council’s International Law Section and a long standing member of the Family Law Section. He is also a Director of LawCover Pty Limited.

Mr Dowd was the President of the Law Society of New South Wales in 2012. Since joining the Law Society in 2007 as a Councillor, he has served on a number of committees including Professional Conduct, Family Issues, Dispute Resolution, Audit, Finance, and the Executive Committee. In 1994 Mr Dowd was accredited by the Law Society as a specialist in family law, having become a solicitor in 1976 and specialising in family law since 1987. Since 1995, he has been a Partner at Watts McCray, one of the largest specialist family law practices in Australia. Mr Dowd is regarded as a highly experienced litigator, with over 35 years’ experience specialising in international family law matters. He is a long standing member of LawAsia and their Family Law and Children’s Rights Section. Ms McLeod and Mr Dowd spoke with Law Council Review about their new roles on the Law Council Executive and on the year ahead for the legal profession.

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THE LAW COUNCIL OF AUSTRALIA WELCOMED TWO NEW MEMBERS TO ITS EXECUTIVE FOLLOWING THE 2012 ELECTIONS: CURRENT VICTORIAN BAR COUNCIL CHAIR, MS FIONA MCLEOD SC; AND IMMEDIATE PAST-PRESIDENT OF THE LAW SOCIETY OF NEW SOUTH WALES, MR JUSTIN DOWD. MS MCLEOD AND MR DOWD OFFICIALLY COMMENCED AS EXECUTIVE MEMBERS ON 1 JANUARY 2013.

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FIONA MCLEOD Congratulations on your appointment to the Executive of the Law Council of Australia. What prompted you to nominate for the position? I had some encouragement. It was this encouragement to take my participation in Law Council to another level of contribution that really inspired me to start thinking about taking up a role on the Executive. There are some issues I am known for being outspoken about and I saw this opportunity as a way to support these issues and the work of the Law Council generally, which I think is very important. What are some of the issues you’re known for being passionate about and for which you are eager to effect change? For many years I have been concerned to support women in the profession. I have been working to create equality of opportunity and participation for women having seen them, over a couple of decades now, still struggling to reach the top of the profession in significant numbers. We have some remarkable individual women who have made a mark at the top, but we're not seeing the groundswell of numbers staying on and being promoted and appointed at levels of seniority in law firms or at the bar. I think it's really important to address those issues and keep working on increasing those numbers. Another issue I care deeply about is the situation with our Aboriginal and Torres Strait Islander peoples. I think we've got serious work to do in achieving genuine reconciliation with our first Australians and to create a dialogue of respect. As lawyers we are well-placed to engage in such a dialogue because we understand what the law is but we also understand how laws can work injustice. I think that's a critical issue for us going forward: to support the work of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians and address the overrepresentation of Aboriginal youth in custody.

The parlous state of legal aid funding across the country is another vital issue. The fact there has been an absolute stalling of Commonwealth and State relations in terms of getting legal aid funding back on a proper basis and back to an appropriate level. Legal aid funding affects the most vulnerable people in our society and as lawyers we have a positive duty to continue to address these funding issues and lobby for them to be put on a proper footing. You were previously a Director of the Law Council before taking on a role with the Executive. What has been the biggest change between the two positions? The transition gave me an opportunity to look more closely at governance arrangements and to have an understanding of what needs to be addressed in terms of policy and the long term strategic objectives of the Law Council. These are areas in which I am interested in making a contribution. What are some of your goals for 2013 in terms of policy development? As the person with oversight of the National Attrition and Reengagement Study, 2013 will be an important year for me. Work on this is already under way and is showing great promise. To have oversight of the implementation of the recommendations of this Study will be critical. In outlining his vision for 2013, the Law Council’s President, Joe Catanzariti, identified the efforts to combat people trafficking as an interest of his. This is an area I have a strong connection to and I will certainly be supporting this work in any way I can. As you alluded to, the National Attrition and Re-engagement Study (NARS) will be a critical policy area for the Law Council in 2013. What is the aim of this study and how will it help in addressing recruitment and retention issues affecting female lawyers? Ultimately the aim of the Study is to ask the question ‘Why are women not staying in the profession?’ If they're leaving for negative reasons rather than making real choices about career options, then we must

ask how do we address those negatives to re-engage women and keep them in the profession. I think we are quite a long way off having a critical mass of women in senior roles. Ultimately, it's that goal - of having women’s engagement in the profession no longer being an issue, that I am keen to support, although I think we have a seriously long way to go before we get there. NARS is one tranche of the Law Council’s Strategic Framework for the Recruitment and Retention of Women Lawyers. How optimistic are you about the impact NARS and the broader Framework can have in addressing the career issues affecting women lawyers? Some days I am very optimistic and other days I am pessimistic. I really think it’s a case of two steps forward, one step back. But regardless of whether we're optimistic or pessimistic, it's work that has to be done and you have to keep going with it because it's too important. To have an assumption, if that's what's driving this, that more than 50% of our population don't make leading lawyers because of their gender, is something we should be challenging constantly. To have a workplace environment that doesn't suit women’s needs and doesn't serve the way they want to practice law is something we've got to address. To have successful practice as a barrister be seen as unachievable for women because it's just too hard, is unacceptable to me. It doesn't matter that it won't be achieved in 12 months—it's work that has to be progressed in both small steps and quantum leaps. The Study is one of those quantum leaps that can focus everyone's attention in one place, give the issue a massive shove forward and see where we get with it in the next few years. What do you view are some of the other key issues facing the Law Council in 2013? We have stalled in achieving a National Profession through lack of support across the country. We need to restate the objectives of national consistency and the benefits of participating. I believe


I don’t think lawyers should be frightened of entering the fray on these issues when we have the knowledge of how international conventions and human rights instruments work, a vision of what out humanitarian role in the region can be, and how people are affected coming to our shores by changes in the global environment. We have a very important role to play as a thought leader rather than playing politics about those things. Lawyers and the Law Council particularly, need to be a strong voice on these issues.

Ms Fiona McLeod SC these arguments are as compelling as they were years ago when we started on this journey. We should be looking at ways to bring all states and territories on board. We need to support the Sections for their work and their membership base; to be responsive to what the Sections actually need because they hold the specialist knowledge and they're doing the bulk of both the policy work and the professional development work. We need to be able to support them and the work they're doing. I mentioned earlier the work of the Law Council in relation to Indigenous reconciliation: I really think there's a leadership role for the Law Council in this area in being able to frame a debate and support the work of the Expert Panel in promoting constitutional reform. This is a critical conversation for Australians in terms of our concept of who we are and how we relate to each other. I have a sense that reconciliation in all its forms will be an essential issue going forward. I have spent some time teaching advocacy in the Solomon Islands and Bangladesh and I know the Law Council is committed to supporting training programs and pro bono work in the Asia-Pacific region. I

think that work is absolutely vital because it’s all very well to have a successful and flourishing Australian economy, but if we’re in a region where our neighbours are struggling there will be economic and humanitarian impacts on us. We have to support good governance structures, including those that support the rule of law, the courts and the legal professions of our neighbours and continue to invest in the region and its people’s wellbeing. Are there any issues you would like to the Law Council to pursue as part of its policy agenda and advocacy? The way in which we treat vulnerable people in our society must inform all of our thinking as lawyers. We have a privileged view of how the justice system impacts on vulnerable peoples. I think the Law Council needs to stay very focussed and true to that goal of being a national voice for the profession and speaking out on issues like this. We need a genuine and legally sound debate on asylum seeker policy—not one that is driven by party politics; not one that is captured by sound bites, but is driven by the international research and understanding about what

How should the Law Council and the legal profession go about changing the tone of that conversation when it’s so heavily dominated by slogans and rhetoric? I’m a great believer in persistence and intelligent debate. In the last decade, we’ve seen in Australia a culture develop or a sense that we are somehow impervious to outsiders; that outsiders are to be feared when they want to come to Australia; and we have shifted away from a nation of generosity to one of fear and concern. But I don’t think that’s our basic nature and lawyers contributing to the intelligent debate will eventually get cut through. How politicians spin it and sell it is a matter for them. But you can’t say ‘well I won’t bother with the debate because it all looks one way at the moment.’ You have to continue to have the one-on-one conversations that make a difference. These conversations might be behind closed doors with politicians, they might be talking to bureaucrats who are framing policy, or they might be the community conversations that lawyers have all the time through speeches, journal articles, academic writing and CPD seminars.

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drives the movement of peoples including climate change and armed conflict and how migrants can contribute to a diverse society. This might involve conversations about population; it might involve conversations about our humanitarian role in the region and how we perceive ourselves.


THE WAY IN WHICH WE TREAT VULNERABLE PEOPLE IN OUR SOCIETY MUST INFORM ALL OF OUR THINKING AS LAWYERS. WE HAVE A PRIVILEGED VIEW OF HOW THE JUSTICE SYSTEM IMPACTS ON VULNERABLE PEOPLES. I THINK THE LAW COUNCIL NEEDS TO STAY VERY FOCUSSED AND TRUE TO THAT GOAL OF BEING A NATIONAL VOICE FOR THE PROFESSION AND SPEAKING OUT ON ISSUES LIKE THIS. – FIONA MCLEOD SC How do you anticipate many of the policy issues we have discussed, as well as others, fit into the 2013 Federal election campaign? What issues would you like to see the political parties of Australia address as we move closer to the September poll? I think one of the hot election issues will be who is serving women better and what sort of package the major parties are prepared to produce in terms of supporting working women. This is always a difficult one for parties because some see tax rebates or child care support as middle class welfare. But it’s clear women are interested to know what is on offer to them. Asylum seeker policy I think will be another key issue. I would urge the major parties to stay away from the slogans and to pursue the regional solutions that are being spoken about. There’s a huge impact, when you pursue fiscal restraint, on all programs and policies so it’s a question of identifying which programs should not be cut in budget spending. Identifying, as best where able, those programs that are working and seeking to support them is important. The Law Council should be pursuing the funding of legal aid in this context. It will be interesting to see what the priorities will be for the Law Council’s constituent bodies and have some discussion about those.

specific programs. At the moment it’s all high-level commitments but it will really start to engage the legal profession once we see programs develop to support the ideals that it espouses. There’s no doubting this White Paper will affect lawyers and their ability to practise in the region. Admission rights, the National Profession and the regulation of lawyers overseas will continue to be relevant issues for the Law Council’s members. This may not be a hot election issue but certainly one of great interest to the legal profession in the future. The practise of law internationally seems to be an undeniable trend of the future which points to the changing face and evolution of the legal profession. As a practitioner with over 20 years experience, what do you now view as some of the significant challenges for the future of the profession in Australia? There is no question for me that shifts in global wealth and the impact of the GFC has meant lawyers have to be adaptable to changing areas of practice and be prepared to invest in their own re-specialisation. As we see a shift away from the incredible wealth that was associated with mining and resources, lawyers have to be prepared and willing to become experts in those other areas of law and adapt. There are areas of law that ten years ago we would have had no concept would even be relevant: climate change and disaster response; cyber communications; the privacy and security of data; and social media

for example. Many lawyers get left behind because they are not interested in following the cutting edge in law. For law firms to survive today, they have to be able to do more than just offer your bread and butter legal services. They have to keep abreast of major social changes and keep up to date with technological changes in the world. I have a very personal professional interest in climate change and the impact it will have upon us. This interest comes through my exposure to two major disaster commissions of inquiry [Ms McLeod SC worked on the Queensland Floods’ Commission of Inquiry and 2009 Victorian Bushfire Royal Commission] and the impact weather changes have on communities in terms of the cost of responding and rebuilding, the failure of our planning systems to adapt quickly enough to prevent the population spread in areas at high risk to natural disasters, and the fact we haven’t woken up yet to the role lawyers need to play in these areas. I think climate change is an area where lawyers will work out that there is a wealth of specialisation needed in the field.

WITH THE LAW COUNCIL’S NEWEST EXECUTIVE In relation to the recently released Australia in the Asian Century White Paper, we really need to see some Paper

The Law Council celebrates 80 years in 2013. Why do you believe it has been an important organisation for the legal profession over the past eight decades and where do you view its place in the future? It’s very important for the national profession to have a voice. If you make individual approaches on issues of policy or law reform you are much less effective than if you


JUSTIN DOWD Congratulations on your appointment to the Executive of the Law Council of Australia. What prompted you to nominate for the position? Stuart Westgarth, who had previously been on the Executive, had determined not to stand again and I thought it was appropriate that the 25,000 solicitors in New South Wales should be actively engaged in the Law Council. One way to do that is by having representation on the Executive. I had also been a Director of the Law Council for almost year, had seen the working of the organisation and was keen to contribute to it personally if I could. Joining the Executive seemed an appropriate way to achieve this. In what areas of the Law Council’s work are you eager to make a personal contribution? I've never sought office for my own sake. My role as the President of the New South Wales Law Society gave me a greater understanding of issues that affect solicitors at the state level, and also at a national and international level. I've had the benefit over the last several years in participating in many international conferences and events, and I have seen the important work that can be achieved through law associations internationally. In particular, I've been a private member of LAWASIA for many years and have attended many of their conferences. This has helped me gain an insight into the operation of law associations throughout Asia and I think I can contribute in that area.

What have been your initial impressions of your role on the Executive? One of my impressions is that the Law Council does a terrific job representing Australian lawyers and Australian philosophy and respect for the rule of law. I would like to encourage that to continue—for example, last year, the Law Council made representations following the arrest of the Chief Justice of Papua New Guinea. The Law Council was quite active behind the scenes at working towards what ultimately turned out to be a good resolution. One of the things I would like to see is not only an active role in, for example, focusing on enhancing the rule of law, but also letting the wider profession know that work is being done. Why do you view the Law Council’s international work as being so crucial to the broader profession? Lawyers, particularly lawyers in Australia, are in a privileged position. We are well educated, by-and-large well paid, and generally well respected. It gives us the voice that will be heard by governments and by prominent organisations. With this comes the responsibility to do something with that voice and I think we can carry that voice to other countries where the rule of law, for example, is not so well respected. We've got the ability to contribute to the debate and to demonstrate how good systems can work. By modelling good behaviour and good systems we can shine a light on practices that can be improved in other places. But we can also learn. There's a lot of tradition and respect in other legal systems, particularly in Asia, which we can learn from—it's very definitely a two-way street. On the national level, there are always going to be debates about human rights; about abuses of the rule of law, and it’s very important that we, as lawyers, undertake a good examination of Government and Opposition policies and present our own views.

What do you view as some of the key challenges for the Law Council with respect to Government, and even Opposition, policy directions? We have to be sensitive to the fact that some of these challenges are national and some of them stateby-state. A desire of state governments to introduce bikie laws, which are aimed at prohibiting certain people from gathering together in groups, is developing into a national issue. It is an issue that the Law Council should and does have policy on. Issues like mandatory detention and the excision of parts of Australia from the migration zone strike me as being concerns that are very legitimately the focus of the Law Council. There is also the nuts and bolts of making the machinery of the law work better. You can see the fabulous work that’s done on a day-to-day level, as well as on a deeper policy level, by the Law Council's Sections. The Sections provide expertise that the Government couldn’t pay for, I imagine—all on a pro bono basis. I've been a member of the Family Law Section for many years, and am a relatively recent member of the International Law Section. I am really impressed by the work all of the Sections do in their own areas of law. The efficacy of Australian business and Australian law will be enhanced by more harmonisation across the states, and I think the Law Council can take a lead in all of those roles. In recent years, harmonisation of the legal profession has been closer than ever through the National Legal Profession Reform Project. The Project hit some significant hurdles in 2012 but the states of New South Wales and Victoria, which account for about 70 per cent of the lawyers nationwide, remain committed to the reforms. Do you believe national reform is achievable in the future? I do believe it is still achievable in the future. But I think the way of getting there won't be the way that we all anticipated. Those in favour of the reforms anticipated there would be model legislation adopted by all the states and

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can speak with a national voice. That and having strong leadership of the Law Council, is what has really positioned it so well over its 80 year history. It has been an interesting history—the Law Council has had its little moments - but I can’t see its core role changing while it remains strong as an organisation and speaks for the profession.


With federal policy issues in mind, there will be a Federal election in September this year. Now that you’re part of the Executive of the Law Council, the national representative body for the legal profession, what issues would you like to see addressed by Australia’s political parties? Because of my background in the profession, family law is something that is always going to be dear to me. It's never going to be a vote winner but there are issues in this stream of law I would like to address with Australia's political parties. As an Executive, we have determined issues relating to the election and will pursue strategies in relation to those. I'm concerned about the terrorist legislation that has been enacted—not necessarily used, but it's sitting there. I think we ought to be reviewing these laws and be active in saying to politicians that it's time to withdraw them.

Mr Justin Dowd territories and it has been clear that a lot of these jurisdictions have ongoing concerns regarding the proposal. I think reform will be achieved, but it will be achieved through collaboration and example. It is highly likely that New South Wales and Victoria will sign up and it's my hope, and indeed expectation, that the other states and territories see the reforms working in action and their fears in relation to costs and in relation to the growth in bureaucracy, either in Canberra or Sydney, are allayed. I think the idea of adopting a policy and trying to insist everybody join when they're not comfortable is now past—we will not be able to achieve reform in that fashion.

change in the last 18 months. We have a change of President every year, which is part of the Law Council’s Constitution and is probably the best model we have, but it means that there is a constant change in direction and management style. There has also been significant change within the Secretary-General's role. All of this change has meant the Law Council requires stability and leadership from the Executive and through whoever ultimately fills the position of Secretary-General. My immediate goal is to support the President and the Executive; to support management in finding stability and a good method of operation that will see the Law Council working to an optimum.

What are your immediate goals in 2013 as one of the Executive’s newest members?

Are there any federally related policy issues you’re keen to push as an Executive member?

I think we have to be realistic setting our goals and that is something I have learnt over time. I’m still learning about what the Law Council does and how it operates let alone the Executive. What I know, though, is the Law Council has undergone significant

One of the focuses that I feel I brought to the Law Society of New South Wales last year related to the rule of law and the enhancement of it. Human rights and the rule of law and the proper operation of courts is something that is particularly dear to me.

I personally would love to see greater harmonisation of the laws across Australia. I think it's silly, for example, that a citizen in Perth might be subject to a different set of defamation laws than a citizen in New South Wales. Defamation is harmonised now but there are a whole lot of areas that are not. Earlier we discussed some of the key challenges for the Law Council in 2013, but what about more broadly for the legal profession— what do you feel are some of the key issues for the legal profession now and into the future? I think one of the challenges for us, as lawyers, is globalisation or the increasing movement of our clients and the work that they do. We have to deal with people whose jobs, whose contracts, whose family law disputes cross borders. That's a growing issue for lawyers but I think it's one we are ably equipped to meet. Uniform rules and a national profession would definitely make this easier. I think there are a couple of drivers of change in the legal world. I think one of those, undoubtedly, is that clients are better educated, more demanding and are looking for better service at a better cost. This then raises a number of issues


There will have to be a demonstrable value add before lawyers are going to be charging and I don't think they we will be able to do it just because we spent six minutes doing a task. The second area that is driving change for the legal profession is technology. For example, nobody sends anything by mail anymore— everything is done electronically and instantaneously. Who would've thought there would now be upwards of 300 million users of Twitter worldwide? Ten years ago nobody really knew what Twitter was. The increasing pace of change means that lawyers have to keep up with that, which is going to be difficult. As a matter of routine, not as an exception, we're going to have voice recognition technology: computers that can think and feed back documents to us. As lawyers we have to learn and adapt to how we manage that change. The Law Council celebrates 80 years in 2013. Why do you believe it has been an important organisation for the legal profession over the past eight decades and where do you view its place in the future? Historically, the fact that the Law Council was formed and has then grown to become the agreed representative of the constituent bodies makes it a very authoritative organisation. Into the future, the Law Council will become increasingly important because state and territory boundaries are going to become an anachronism— even national boundaries are going to become an anachronism. The only boundary will be whether or not you can log on to Wikileaks.

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The Law Council, as the representative of the state and territory bars and law societies, has the authority to speak with one voice. This will be more important as more areas of law will be referred nationally and more governance will be done nationally. The Law Council's role will be even more important.

JAN–MAR 2013

including the safety of cloud computing and outsourcing work to other countries where it is done more cheaply. It also raises the issue of legal costs and the basis of the six minute charge unit—clients don't want to buy time, they want to buy an outcome, service or expertise. Traditionally, however, lawyers sell time so there's something of a disconnect there. I think there will be an increase in the demands by clients for fixed fee contracts.

MY IMMEDIATE GOAL IS TO SUPPORT THE PRESIDENT AND THE EXECUTIVE; TO SUPPORT MANAGEMENT IN FINDING STABILITY AND A GOOD METHOD OF OPERATION THAT WILL SEE THE LAW COUNCIL WORKING TO AN OPTIMUM. – JUSTIN DOWD


80 YEARS OF HISTORY


MAR–MAY 2012

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IN 2013 THE LAW COUNCIL OF AUSTRALIA CELEBRATES ITS 80TH ANNIVERSARY. THROUGHOUT THE YEAR, THE LAW COUNCIL REVIEW WILL PROFILE SOME OF THE INFLUENTIAL PEOPLE AND EVENTS THAT HAVE SHAPED THE LAW COUNCIL THROUGHOUT ITS HISTORY. THE LAW COUNCIL REVIEW HAS HIGHLIGHTED SOME OF THE MOST INTERESTING SNIPPETS OF LAW COUNCIL HISTORY AND LORE.

The Law Council of Australia’s first meeting held in 1933.


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THE FORMATION

The Law Council of was created in 1933 as the peak national body representing the legal profession.

Existing state and territory legal professions recognised the need for a united front on a national level that could represent their interests to the Federal Government. They also recognised the value in having a national body which could add its weight in support of the state and territory representative organisations on issues of concern to them. At the first ever conference of Australian Legal Societies, held in April 1933, a Constitution was drawn up for the formation of the Law Council of Australia. The nation’s peak legal body was born. The Law Council held its first official meeting in March 1934.

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THE NAME

The ‘Law Council of Australia’ was just one of a number of names that could have been adopted to identify the nation’s peak legal body.

When the establishment of a federal body for the legal profession was proposed in the early 1930s, the terms ‘affiliated council’, ‘Australian Law Association’, ‘central council’ and ‘Australian Law Society’ were all mentioned. The formal proposal put before the April 1933 Conference called for the establishment of ‘The Australian Law Council’. This name was initially adopted as part of the constitution. This name was later rejected however and the alternate ‘Law Council of Australia’ was proposed. The new title was put to a vote and succeeded.

Since the original ‘Law Council of Australia’ name was chosen, alternative names for the Law Council have been proposed, through the years, including: ‘Australian Bar Association’, ‘Australian Lawyers Association’, ‘Australian Council of Lawyers’, and ‘National Council of Lawyers’.

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Sir Robert Menzies

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FAMOUS FACES

Australia’s longest ever serving Prime Minister, Sir Robert Menzies, was a Vice President of the Law Council of Australia from 1939–40.

Mr Menzies was elected to the role of Vice President at the sixth annual meeting of the Law Council, held in Hobart on 1 May 1939. He shared the Vice President role with Queensland practitioner WP Rowland. Sir John Kerr, the man at the centre of the infamous “dismissal” of Prime Minister Gough Whitlam in 1975, was President of the Law Council from 1964–65. Mr Kerr was appointed a Companion of the Order of St Michael and St George (CMG) on 1 January 1966 in part for his services as President of the Law Council of Australia. In its 75-year history, the Law Council of Australia has had a number of well-known lawyers as its President, including Sir John Greig Latham (politician, diplomat and Chief Justice), Sir Garfield Barwick (politician and longest-serving Chief Justice), Sir John Kerr (Governor-General during the dismissal) and Ian Temby QC (first ICAC Commissioner).

HONORARY MEMBERS

The Law Council of Australia has seven honorary members: the Hon. Murray Gleeson AC QC; the Hon. Sir Nigel Bowen AC KBE; the Hon. Sir Anthony Frank Mason AC KBE QC; the Right Hon. Sir Harry Talbot Gibbs GCMG KBE; the Hon. Michael Kirby AC CMG; the Hon. Mary Gaudron AC QC; and the Hon. Sir Gerard Brennan AC KBE.

The Council’s foundation President, Sir Herbert Mayo, worked tirelessly for the creation of a national body to represent the legal profession, and his advocacy led to the formation of the Law Council in 1933. He was appointed a judge of the Supreme Court of South Australia in 1942 and he acted as Chief Justice in 1957.


THE ‘LOVING CUP’ AND OTHER GIFTS

JAN–MAR 2013

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23 In 1951 the Bench, Bar & Solicitors of England presented the Law Council of Australia with the “Loving Cup”.

The gift was made to mark the occasion of the Jubilee Convention and in recognition of the kindness and consideration extended by the Law Council to overseas visitors. The Cup is dated 1706, during the reign of Queen Anne, and bears upon it the O’Neill coat of arms. The Cup was displayed for many years at the High Court of Australia, as the Law Council did not have a secure location for it. On completion of the new Law Council premises in Canberra, then Chief Justice, Sir Gerard Brennan, returned the Cup to the Law Council at a small ceremony in 1996. Former Law Council President Peter Cranswick presented a work of sculpture to the High Court of Australia as a gift to commemorate the opening of the new High Court building by Her Majesty Queen Elizabeth II on 26 May 1980. It is displayed in the foyer on the ground floor of the High Court. The work is “Curvilinear”, a welded steel sculpture by Melbourne artist Erwin Fabian. The work was purchased with donations from the Law Council’s constituent bodies.

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HARMONISATION

Since its formation in 1933, the Law Council has been working towards harmonisation of the profession. However, it’s a movement that predates the Law Council itself.

A bronze plaque, found during renovations at the Law Council Secretariat in Canberra, speaks of a bequest to the development of a national legal profession. The plaque is dated 1930.

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The Loving Cup

SECTIONS

In 1979, the Law Council amended its Constitution to enable the formation of special interest sections. The Law Council of Australia now has five Sections: Business Law; Family Law; Federal Litigation; International Law and Legal Practice. The first Section of the Law Council, the Section of Law Practice Management, was constituted by the Executive on 22 March 1980. This section had its origins in informal discussions held by practitioners from various states who shared a common interest in practice management.

The Law Council of Australia Secretariat, located in Canberra, was opened in 1992 by then High Court of Australia Chief Justice the Hon. Sir Anthony Mason AC KBE CBE QC.


LAW COUNCIL HONOURS THE MEMORY OF DISTINGUISHED MEMBER OF THE LEGAL PROFESSION


The Honourable Ms Pearlman AO passed away in 2011 and is regarded as one of the profession’s most eminent and pioneering members. She was the first female President of the Law Council of Australia as well as the first female President of the Law Society of New South Wales. In January 1985, she received the Order of Australia (AM) for services to the legal profession; in 2003 she was awarded the Centenary Medal for services to the law; and in 2004 she was made an Officer of the Order of Australia (AO) for service to the law, the judiciary and the community. One of her most significant contributions to the profession was in her capacity as the Chief Judge of the New South Wales Land and Environment Court. It was a position she held for 11 years, which ranks her as the longest serving Chief Judge in the Court’s history.

In 2013, the Oration was delivered by the Honourable Paul Stein AM QC, former Justice of the Court of Appeal of New South Wales and the Land and Environment Court of New South Wales, on the topic “From Macro to Micro— International Environmental Law to what’s happening next door”. The Mahla Pearlman Award for the Australian Young Environmental Lawyer of the Year, conducted annually by the Australian Environment and Planning Law Group, was also presented in conjunction with the Oration. The Award was renamed in the Honourable Ms Pearlman AO’s honour in 2012 and is presented to a young practising barrister or solicitor who has made a significant contribution to environmental law The Law Council of Australia announced Ms Lindsey PheloungBeck as the winner of the 2013 Award. “Recipients of this prestigious Award have carried out extensive work in giving back to the legal community as well as to the community at large through environmental law,” said Law Council of Australia President, Mr Joseph Catanzariti. “Ms PheloungBeck’s achievements in this regard point to an already exemplary career as a young environmental lawyer: she has volunteered at the Environmental Defenders’ Office in Western Australia; she is the immediate past president of the Western Australian Chapter of the National Environmental Law Association; and she has lectured at Murdoch University on Environmental, Sustainability and Climate Change Law. The Law Council congratulates Ms Pheloung-Beck on her achievement and looks forward to observing her future contributions to the legal profession—specifically in the area of environmental law.”

The Law Council Review spoke with the Chair of the Australian Environment and Planning Law Group, Mr Greg McIntyre SC, about the Mahla Pearlman Oration and Australian Young Environmental Lawyer of the Year. What are the origins of the Mahla Pearlman Oration? It’s a combined effort of the Law Council of Australia and the Environment and Planning Law Association of New South Wales. When Mahla Pearlman passed away, it was thought desirable to have an event which recognised her contribution to environment and planning law. The two Orations so far have involved prominent, senior, practitioners in the field. The first Oration was by Emeritus Professor Ben Boer who is of very high standing in the area of environment and planning law. In 2013, the Oration was delivered by the equally eminent the Honourable Paul Stein AM QC, former Justice of the Court of Appeal of New South Wales and the Land and Environment Court of New South Wales. What is the significance of the Mahla Pearlman Oration to practitioners and those interested in environment and planning law? It allows them to extend their knowledge in this area. Professor Boer’s 2012 paper tended to have a fairly broad international law perspective to it, which is reflective of his career. Paul Stein’s paper reflected very keenly on the way government is managing the environmental protection process—particularly the developments in the law of New South Wales. As a practising lawyer in this field of law, what aspects of the Honourable Paul Stein’s speech did you find to be particularly interesting? He opened the substance of his talk by saying that the Environmental Protection Act was an elegant piece of legislation when first drafted in 1979 and that it was landmark legislation that integrated the environment into planning considerations.

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IN MARCH 2013, THE AUSTRALIAN ENVIRONMENT AND PLANNING LAW GROUP OF THE LAW COUNCIL OF AUSTRALIA’S LEGAL PRACTICE SECTION HONOURED ONE OF THE AUSTRALIAN LEGAL PROFESSION’S MOST REVERED PERSONALITIES— THE HONOURABLE MAHLA PEARLMAN AO.

The Law Council of Australia in association with the Environment and Planning Law Association of New South Wales hosted the second Mahla Pearlman Oration— an annual event that honours the career, contribution and memory of the distinguished New South Wales public servant.


There is a degree of enthusiasm among younger lawyers to work in environmental law and the Australian Environment and Planning Law Group of the Law Council's Legal Practice Section believe that by providing this award, it is further encouraging practice in this area. How would you sum up the importance of the Award?

(left to right): Mr Ian Hemmings, President of Environment & Planning Law Association (New South Wales); Mahla Pearlman Young Environmental Lawyers of the Year 2013 Ms Lindsey Pheloung-Beck; Mr Joseph Catanzariti, Law Council President; Mr Greg McIntyre, SC and Ms Maureen Peatman, Chair, Legal Practice Section. He said that since then there have been about 150 amendments, usually preceded by the pronouncement that the amendment would make decisions speedier, cheaper, easier and of course cut red-tape. We all know the result was the opposite: the Act became a complex web that led to decisions becoming more difficult, slower, more expensive and inefficient. It’s very difficult for participants and decision makers alike to navigate. Many would even consider that the best remedy would be to start from scratch. Justice Stein was fairly critical in the sense of where the Environmental Protection Act has got to and then he focused on a couple of areas where he thought a more effective approach could be taken. Could one of those more effective approaches include actually starting again from scratch? It’s unlikely that a government would do that. But it probably does give them some indication of how seriously they ought to look at approaching the matter. In this regard, what are some of the other major challenges facing environmental law? I think overall it has done what Justice Stein indicated in that it has become more complex. He compared it, unfavourably, with the Tax Assessment Act, which many people know is a highly complex piece of legislation to work through. One of the dangers of our modern society is that there seems to be a view that in order to deal with difficult problems you have to have more and more incomprehensible legislation.

Certainly there have been advances in environmental law in setting up processes for environmental impact assessments. The danger is that, in creating the processes you do, you create so much complexity that even experienced lawyers have difficultly working through it. What role can the legal profession play in meeting some of these challenges? There’s quite a significant role for the legal profession in assisting various citizen groups in working their way through the legislation, but also to assist in making sure that the legislation and policy are properly integrated. There’s not a clear blue line between legislation and policy in these areas, so the Australian Environment and Planning Law Group has a keen eye on that balance between good policy and good regulation. Part of meeting these challenges involves the current and future generations of environmental lawyers. In 2008 the Australian Young Environmental Lawyer of the Year was first awarded to recognise the great work of young lawyers in this area of law. What are the origins of the Young Environmental Lawyer of the year award and, also, the decision to rename it in honour of Mahla Pearlman? The award has been in existence for several years to recognise the achievements of a young environmental lawyer. Mahla Pearlman passed away in 2011 and the Award was officially renamed in her honour in 2012.

It is a great encouragement for young lawyers to get involved with environmental law. Young lawyers are putting a lot of effort into practising in this area. This is reflected often through their voluntary work; as well as the day-to-day work they are paid for. It is a way of recognising their contribution to the betterment of the Australian community. Shifting focus to the 2013 winner of the Award, Ms Lindsey Pheloung-Beck, what stood out to you about her achievements in environmental law? It was a mix of things. She has a very good academic record, including a first class honours degree in law (which included writing an honours thesis on the threshold test for environmental impact assessment under Australian legislation, comparing case law in the US and Canada)combined with a Bachelor of Science degree, majoring in environmental science. She was, also awarded the Vice Chancellor’s Award for academic excellence. She also has a history of volunteering in the environment movement. She volunteered in the Environmental Defenders’ Office in Western Australia and also the Western Australian chapter of the National Environmental Law Association (of which she is the immediate past president). Overall, she has quite an impressive track record for someone so young. She is quite typical of the highly enthusiastic, highly intelligent young lawyers that the Australian profession has—particularly in the field of environmental law.


At a function on 8th March, Indigenous law student, Mr Corey Smith, was announced as the recipient of the Law Council of Australia John Koowarta Reconciliation Law Scholarship for 2013. Mr Smith is the 23rd recipient of the Scholarship, which assists Indigenous men and women to study law. Currently in his fourth year of a Bachelor of Arts/Law degree at the University of New South Wales, Mr Smith also tutors Indigenous students through the NuraGili Centre for Indigenous Programs and has won numerous academic awards. “Mr Smith has a passion for Indigenous issues and a desire to use his educational opportunities to ensure that all people in Australia are treated equally before the law,” said Law Council President, Mr Joseph Catanzariti, of Mr Smith’s achievement. “He is an outstanding role model within his Sydney community and I wish him all the best for his future studies and career. He is a shining example of

The Law Council of Australia’s John Koowarta Reconciliation Law Scholarship commemorates the memory of John Koowarta.A member of the Winychanam community at Aurukun and a traditional owner of the Archer River region on Cape York Peninsula in Queensland. Mr Koowarta challenged the Queensland Government under the Racial Discrimination Act 1975 (Cth) after its decision to prevent the Aboriginal Land Fund from acquiring a crown lease on a pastoral property for his people. The decision by the Bjelke-Peterson Government was based on cabinet policy at the time, which opposed ownership of large tracts of land by Aboriginal peoples. The Queensland Government challenged the validity of the Racial Discrimination Act in the High Court and was defeated. The High Court’s decision was later pivotal in the recognition of native title in Mabo v Queensland (No.2). The Scholarship was established in 1994 and is available to Aboriginal and Torres Strait Islander students enrolled in an approved course of study at or through an Australian tertiary institute, which is a prerequisite to admission as a legal practitioner in any Australian jurisdiction. Through the John Koowarta Reconciliation Law Scholarship, the legacy of this proud man lives on. “The Law Council is immensely proud to administer the John Koowarta Scholarship on an annual basis and it is considered an integral part of promoting Indigenous involvement in the legal profession,” Mr Catanzariti said. More information about the John Koowarta Reconciliation Law Scholarship, including how to make a tax deductible contribution to the Scholarship trust fund, is available online.

John Koowarta Scholarship Recipient, Mr Corey Smith and Mr Joseph Catanzariti, President, Law Council of Australia.

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LEGACY OF PIONEERING INDIGENOUS LAND RIGHTS ACTIVIST SHINES THROUGH SCHOLARSHIP RECIPIENTS

AS A PIONEER OF INDIGENOUS LAND RIGHTS JOHN KOOWARTA LEFT A LEGACY THAT IS ASSISTING A NEW GENERATION OF YOUNG INDIGENOUS ADULTS REALISE THEIR POTENTIAL AND FORGE THEIR OWN CAREERS IN THE LEGAL PROFESSION.

the values of John Koowarta and the Law Council Scholarship that has been named in John Koowarta’s honour.”


FINDING THE LINE ON DATA RETENTION


Balancing the privacy of citizens and national security interests has become an increasingly difficult job for governments in a world where nearly 2.5 billion of its inhabitants are interconnected through the internet. In 2012, the Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced an inquiry into potential reforms (outlined in a discussion paper about national security legislation: Equipping Australia against emerging and evolving threats) of National Security Legislation. One of the most controversial aspects of the proposals in the Discussion Paper relates to data retention. The Discussion Paper stated that the Government is ‘expressly seeking’ the views of the PJCIS on a proposal that would require telecommunication industry participants to retain certain telecommunications data for up to two years, with specific timeframes taking into account agency priorities and privacy and cost impacts. Late last year, Phillip Boulten SC of the Law Council’s National Criminal Law Liaison Committee appeared before the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to give evidence in relation to the proposed data retention scheme.

What is the Commonwealth Government’s proposed data retention reforms? The data retention proposal is just one of the raft of proposals the Government included in a paper that outlines potential reforms of national security legislation in August last year. It seems that the government is testing the idea of ramping up many different potential investigative tools and this is just one of them. Data retention is the tool that has drawn the most attention, and subsequent criticism, to date. Are there other aspects of the proposed reforms that you believe are of concern? Data retention has received the most publicity and generated the most public discussion—one would say the most concern. The Law Council made an 80 page submission and our concerns are broader than that. There are issues, for instance, about the rationalisation of warrants that would tend to make it easier for ASIO to engage in searching and seizing material. There is also a proposal put forward by ASIO that intelligence agents be allowed to break the law with impunity in a form of intelligence-style controlled operation. This is another controversial proposal. The other particularly fraught issue is the idea being proposed that ASIO might be allowed to obtain person-specific warrants to search computers or to intercept computer databases. This would allow ASIO not only to search a particular computer but to search banks of computers and perhaps even any computer found in premises that ASIO suspects is occupied by a person of interest. Why is the Government pushing reforms in these areas? I think the Government has ventilated a wish list that is being provided to them by the security services.

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THE AUSTRALIAN GOVERNMENT’S PROPOSAL TO RETAIN THE METADATA HAS DELIVERED A CRITICAL REBUKE FROM THE LEGAL PROFESSIONS PEAK BODY.

Mr Boulten spoke with the Law Council Review this month about the proposed data retention scheme and the consequences it could have for the Australian public.


We are quite happy to give support to a number of proposals in this very long list that are sensible proposals to streamline procedure. But it seems that the Government was presented with a virtual wish list of proposals by the security agencies. Initially the Government was not necessarily giving its support to everything on the wish list. When the [former] Attorney-General first issued the discussion paper, it was said that there were some issues about which the Government was looking for some advice and the data retention scheme was one where the Attorney-General initially said she needed some convincing. The Parliamentary Joint Committee on Intelligence and Security was investigating the need for these proposals. They've consulted widely, there have been many submissions made, evidence has been taken and we are looking forward to their report on the issue. What value do these proposals have for the Government and security agencies like ASIO? Access to the data is being sought by security agencies. Security agencies are in the business of gathering intelligence. They are not in the business of investigating criminal activity or prosecuting people for specified crimes. In some senses intelligence has much more variable value than evidence that can be admitted into a criminal trial. Intelligence can be really valuable or worthless. This shows the scope of the power that is being sought. Intelligence agencies are quite happy to scoop up almost valueless information in the hope that in amongst it they might be able to piece together the jigsaw puzzle that has sufficiently valuable pieces to demonstrate the overall picture. ASIO wants to be able to get access to all of the metadata concerning electronic communication in Australia over a two-year period. It seems that they're not pressing to look at the substance of the data. They don't really want to be able to leaf through the pages people have viewed on the internet or to read the content of the e-mails people have sent and received.

Mr Philip Boulten SC What they are interested in though is in having the ability to get access to what internet sites people have accessed, who they sent e-mails to, what time they received them and so on. Is there a concern this is in effect a slippery slope towards security agencies wanting access to specific details such as sent emails and browser history? It could easily be the next step. When the proposal was first aired it wasn't at all clear that they weren't after that power. We're still not 100% sure that they're not after that power. It seems from the nature of the questioning that was undertaken of witnesses in the Parliamentary Joint Committee hearings that the Government's own perception of what it is that they're being asked to deliver to ASIO is the data about the records of communications rather than substance of each communication.

What use does this data have for national security agencies? Is it, for example, part of national security measures? Could it be used in criminal trials (as was referenced, by way of example, by the then Commonwealth Attorney-General in a letter to the PJCIS Chair)? National security has a very broad definition in the ASIO Act. But certainly the focus of ASIO over the last 12 years has been on internal and external threats to Australia's security posed by people who might undertake terrorist activity. These provisions though are not limited to the investigation of terrorist activity. Australia's economic interests are also part of its national security concerns so it could have a very wide reach indeed. The course of the last 12 years has shown an increasing degree of overlap between intelligence gathering and the investigation and prosecution of crime.


It's likely that this sort of mechanism will be used by ASIO as part of, for example, joint taskforces to assist other agencies to identify and prosecute criminals. What would the impacts of these proposed law changes be on the Australian community? To start, internet service providers are going to be required to maintain systems that are going to be quite expensive. This means ISP fees are likely to increase. Secondly, it’s going to be the Internet service providers that are harbouring the information on behalf of spies. Internet service providers are not the government. They are commercial groups that are not particularly charged with any public interest in maintaining the security of the system for privacy purposes. The risks of people being able to hack into this database become more real the longer it exists. The risk of people getting access to this database legitimately but then misusing the data also increases. The potential for abuse of this sort of material is high. Do these impacts extend to the legal profession and the work of lawyers? Lawyers are no different in this set of circumstances from the average citizen. All of the lawyers’ data will be kept and the security agencies will be able to tell who they're communicating with. Even if they don't have access to privileged information, they will at least know who the clients of the lawyer might be. There is some real risk that the relationship that normally exists between solicitor and client will be threatened by the ability of the security agencies to get access to privileged information. At least in real-time searches under warrant

there is a protocol that maintains the ability for a lawyer or a client to be able to claim legal professional privilege over the seizure of particular purportedly privileged documents. There will be no ability to deal with those sorts of issues where intelligence agencies have access to a whole range of data on a lawyer’s computer. Do you believe there is scope for some form of data retention scheme if this proposal is not the correct model? The more specific a request from ASIO for data is, the less the likelihood for misuse is. ASIO needs to be quick to issue a warrant to get access to data that is being stored by an ISP. If they are quick enough they can specify with some degree of certitude whose data they are looking for, for what purpose, and for how long. The real problem is where ISPs are just asked to keep everything, for everybody, for a set period of time. That is the electronic equivalent of forcing everybody to keep all the letters they've received for the last two years in case ASIO wants to come look at the letters. Where does the individual’s right to privacy intersect with a Government’s requirements to defend a nation’s interests? It is a subjective judgement: weighing two quite different considerations against each other. There is no doubt that if there was a law that said that every ISP had to keep their data for years, that it would be of some use to ASIO one day, somehow. But unless there is some demonstration of how useful that might be, it is easy to point to the fact that the privacy considerations and the risks attached to that sort of scheme, being so substantial, are likely to outweigh the national security benefits from such a scheme. ASIO have not really put their case well in public. ASIO has extensive powers under their current legislation and are constantly on the lookout for more. Parliament should be very careful about extending their power without having a proper cost benefit analysis.

Where do you see the future of these reforms heading given the negative publicity they constantly receive? It remains to be seen what the new Attorney-General’s approach is. I would think that the Government’s position is unlikely to change substantially. The Government seems to be giving fairly strong support to the security agencies and I'd be surprised if they changed their mind. Time will tell how much change, if any, is made to the proposed data retention scheme. The Joint Committee's report is due relatively soon. I would be surprised if the Government did anything other than what they have done for the past 15 years— Governments of both persuasions—and that is to give ASIO whatever they ask for. So long as there are new and inventive ways of gathering intelligence, intelligence agencies will be after them. In the past, ASIO has been a fairly backroom player. Now, though, they have been pushed towards the front line on a number of important public policy issues. Not only do they contribute to joint taskforces investigating criminal offences but they are also providing security assessments that, on occasion, lead to people who have not committed crimes being detained indefinitely in immigration detention. Their reach is extending into circumstances where they are having very real impacts on the lives of people who are not criminals and who do not easily fit the characterisation of people who are likely to cause serious threats to Australia's national security.

31 JAN–MAR 2013

Although the ASIO Act restricts ASIO’s role to one relating to intelligence, it is now very common for them to work in conjunction with police and other investigative organisations to share information and to assist in the prosecution of suspects in criminal activity.


HIGHLIGHTS Précis is a fortnightly publication providing a brief overview of the Law Council’s activities. Précis is available to view online. For all enquiries about Précis, including information on subscription, please contact Michael Anderson on 02 6246 3725 or precis@lawcouncil.asn.au Law Council encouraged by funding injection to legal services – Issue #162 The Law Council of Australia has welcomed the announcement that a series of one-off funding injections will be made to a range of services providing assistance for families experiencing separation. Law Council of Australia President, Mr Joseph Catanzariti, said the funding for Community Legal Centres (CLCs) and Aboriginal and Torres Strait Islander Legal Services (ATSILS) is a much needed injection of funds for legal assistance providers. “Due to years of underfunding CLCs and ATSILS have struggled to maintain and deliver the most basic services. “Those most significantly affected by this lack of funding are hardworking people, or the ‘working poor’, and families experiencing separation, who require legal assistance that most Australians simply cannot afford. “The families, and particularly the children, who require the assistance of these services are often the most vulnerable of all families who access the family law system,” Mr Catanzariti said. Chair of the Family Law Section of the Law Council of Australia, Mr Rick O’Brien, joined Mr Catanzariti in welcoming this much needed funding injection.

“The Family Law Section is particularly encouraged by the announcement of funding for a common screening and risk assessment tool and framework – Family Law Detection of Overall Risk Screen (DOORS). “The introduction of funding for the development of DOORS will help professionals in the family law system to identify safety risks for clients, particularly risks to those families exposed to family violence and child abuse. “The issue of family violence cannot easily be addressed in a way which assists Australian families and children without proper and consistent funding,” Mr O’Brien said. While these additional funds will be of great assistance to a number of providers delivering services and invaluable support to a significant number of families, the family law system and the access to justice system in Australia, as a whole, is still significantly under resourced. The Law Council welcomes the initiative and encourages the Government to continue to explore ways to better resource the justice system, so that all Australians have appropriate access to legal advice and services, regardless of their means. Law Council of Australia commends passage of important reconciliation Bill – Issue #163 The Law Council of Australia has welcomed the passage of the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 through the House of Representatives. Law Council of Australia President, Mr Joe Catanzariti, said the Bill represents an important step towards the ultimate aim of a referendum on Constitutional recognition of Australia’s first peoples. “The Law Council of Australia has advocated strongly for commitment to a referendum on Constitutional

recognition of Aboriginal and Torres Strait Islander peoples—the passing of the Act of Recognition reflects a significant development in this process. “It was promising to observe the bipartisan support in Parliament for a national referendum on this issue. “It is now important for Parliament to commit to a program of open dialogue with the Australian community to ensure they are appropriately informed when it comes time to vote on the important potential reform to our nation’s founding document,” Mr Catanzariti said. The Bill passed includes a sunset date of two years, which Mr Catanzariti said would be vital in providing a timeframe for consultation and education on the issue. “It is important to ensure the process is not rushed; that appropriate consultation is undertaken and the people of Australia are adequately equipped with the appropriate knowledge when it comes time to vote on this issue. “The Law Council supports Constitutional change to recognise Aboriginal and Torres Strait Islander peoples, their cultures, history and languages, and to give substantive effect to that recognition through change to Australia’s Constitution.” “To this effect, the Law Council will continue to advocate strongly on the merits of Constitutional recognition to ensure it remains on the Australian political and social agenda. “We have been presented with a potential watershed moment in Australia’s history and it’s vital we get it right,” Mr Catanzariti concluded.


The new resource is designed to provide solicitors and their employers with the necessary tools to implement flexible work arrangements. The resource is one of a number of recommendations contained in the Law Society of NSW’s Advancement of Women in the Profession Report, released in late 2011. Throughout 2011-12, the Law Society of NSW hosted a series of Thought Leadership events as well as networking skills sessions with the Women Lawyers Association of NSW. Feedback from these forums revealed that solicitors and practices need practical tools to make flexible working a reality in the workplace. These consultations also identified that the availability of flexible working remains a key issue in the

JAN–MAR 2013

THE LAW SOCIETY OF NEW SOUTH WALES’ (NSW) INITIATIVES TO RETAIN WOMEN LAWYERS CONTINUE TO GAIN MOMENTUM WITH THE RECENT LAUNCH OF A NEW FLEXIBLE WORKING RESOURCE.

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profession, particularly for women who want to progress in the law. It’s acknowledged that there are clear benefits for practices that embrace flexibility, particularly in attracting and retaining talent in today's competitive environment. The newly published flexibility resource provides information on different types of flexible working and their value, as well as tips on developing suitable arrangements in the workplace for both male and female solicitors. In 2011, 1531 solicitors reported working part time when surveyed by the Law Society of NSW, an increase of 24 per cent compared with the previous year. Women reporting part time working made up 22 per cent of female survey respondents, while part time men constituted just nine per cent of male respondents.

The information for practitioners and practices wishing to introduce more flexible working arrangements includes: • Types of flexible working arrangements, such as job-share, compressed work week and remote working; • The value of flexible working in attracting and retaining talent and improving productivity; • Ways to develop effective flexible working arrangements, with supervisor tips for success and tips for employees; and • A sample flexible work proposal business case and individual flexible work plan - published with the permission of Victorian Women Lawyers. In a related initiative, the Law Society of NSW recently launched a mentoring program for women with 10-15 years post admission experience. Initial interest in the pilot was such that the Law Society of NSW doubled the intake to accommodate the volume of requests from protégées seeking mentors. The new flexibility resource is free to download from the Law Society website.


JAN–MAR 2013

MULTIPLE PATHWAYS TO INDIGENOUS RECOGNITION

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If, like the Law Council of Australia, you support the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution of Australia, and the peaceful resolution of sovereignty and property rights claims, you may be interested in a reflective meander through some of the quiet suburbs and leafy streets of our national capital. Here we can find MyWay streets and places named after Indigenous leaders and their supporters, and the legal luminaries who have contributed to Australia’s governance under the rule of law. Judges and members of the legal profession are commemorated in more than 170 of Canberra’s place names. Many other celebrities and quiet achievers have also been mapped onto our cityscapes. This ‘naming convention by theme’ has been in place since 1927. No theme is more appropriate for the heart of the nation than the recognition of former first Australian leaders, and the legal profession and judiciary themes that commemorate our evolving Constitution and legal

infrastructure, such as the Torrens System for Land Title Registration. Our Federation fathers, including Henry Parkes, Edmund Barton, Samuel Griffith and Alfred Deakin, have commemorative pride of place as the names of some of the powerful, inner sanctum suburbs close to Capital Hill and the Australian Parliament. These men were colonial politicians who were prominent in the Constitutional Convention debates that neglected the rights of Aboriginal and Torres Strait Islander people and migrants, but which led to the draft document that eventually became our Constitution. Griffith and Barton later became Chief Justice Sir Samuel Griffith who served on the High Court 1903–19, and Sir Edmund Barton who served as a Justice 1903–20. Today Reconcilation Place in the Parliamentary Zone creates a breathing space that softens the impact of these built-up, establishment suburbs, the High Court-National Gallery Precinct, and the monarchical names of terraces in the Parliamentary Zone close by.


Although ‘Yarralumla’ is a local Ngunnawal name for a suburb with a prime-ministerial, diplomatic and vice-regal presence, we need to travel a little away from our democratic centre before Aboriginal and Torres Strait Islander leaders and their tribes are commonly recognised in our street names. The suburbs of Aranda (gazetted in 1967) and Waramanga (gazetted in 1980) have many streets dedicated to the names of Aboriginal tribes who predated European colonisation, including Bindubi, Badimara, Jalanga, Janari, Gurnai, Nungara, Wangara, Wargi, and scores more. Jimmy Clements Crescent in the outer, 2009 suburb of Bonner, recognises Jimmy ‘King Billy’, the Wiradjuri elder also known as ’Nangar’ or ’Yangar’ (1847–1927) who, with his friend John Noble (or ‘Marvelous’), attended the opening of Parliament House in Canberra on 9 May 1927. ‘King Billy’ attracted support from the crowd and resisted a move-on request from police, and he was later presented to the Duke and Duchess of York (later King George VI and Elizabeth the Queen Mother). The suburb of Bonner, which includes Jimmy Clements Crescent, is named after Neville Bonner AO, the first Indigenous Australian to sit as a Senator in the Australian Parliament – an office he held for 12 years. In 1979 the Australia Day Council named Bonner the Australian of the Year. Hubbe Street in the suburb of Torrens, commemorates the farmer, legal scholar and journalist Ulrich Hubbe (1805–92) who contributed to the development of the Torrens System of Land Title Registration. As is well known, this reform – pioneered in the Real Property Act 1858 (SA) – rendered obsolete the need to prove a chain of title through title deeds by establishing a deed registration system. Sir Robert (Richard) Torrens MLC as Premier of South Australia in 1857–58 led the introduction of that simplified conveyancing reform legislation. Torrens titles have since been adopted around the world. Canberra commemorates Torrens in the suburb of Torrens, and in Torrens Place and Torrens Street.

Sir Richard Torrens is also commemorated in a Law Council tapestry that hangs above the stairs in its Torrens Street building in Braddon. In 1991 the Law Council’s constituent bodies, the states and territories’ law societies and bar associations, joined together to commission a tapestry from the Victorian Tapestry Workshop as a gift for the building then under construction. Entitled ‘Letters of the Law’, the tapestry features words that relate to lawyers and the legal profession including ‘Torrens System’, ‘Land Titles Office’ and ‘Conveyancer’. It is a coincidence that the new building was ceremonially opened in 1992, when later that year the High Court’s decision in Mabo v Queensland [No 2] (1992) 175 CLR 1 recognised native title as a continuing bundle of rights subject to extinguishment. Native title law and policy can be seen as a peace-seeking compromise in which exclusive Torrens titles, including residential leases, extinguish native title, with the Aboriginal and Torres Strait Islander Land Fund providing compensation and alternative pathways to land title recognition. The Torres Strait Islander community leader and human rights activist Eddie Koiki Mabo, who instigated the paradigmchanging litigation, is commemorated in Mabo Boulevard in the Canberra suburbs of Bonner and Forde. While native title doesn’t feature in the Law Council’s tapestry, the Law Council has since woven streets of recognition through its pioneering work on Constitutional reform. In December 2012 the Law Council welcomed the introduction of the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 into the Australian Parliament, and the establishment of a Joint Select Parliamentary Committee to build support for Constitutional recognition. The Law Council supports a referendum for a Constitutional amendment to insert a provision that recognises Aboriginal and Torres Strait Islander peoples as the first Australians, and to remove out-dated, race-based provisions, including one permitting the exclusion of certain racial groups from voting in state or federal elections and the making of

laws on the basis of ‘race’. Australia has made significant steps towards reconciliation in recent years and Constitutional recognition is the next step forward. The ACT Place Names Committee has paved multiple complementary routes with noble commemorative intent. The Canberra Centenary’s Portrait of a Nation project involves communities in the national capital researching and celebrating the people that some of the national capital’s placenames commemorate. As part of the project, residents are being asked to look up the person their street or suburb is named after and upload their findings to a community portal. For more information visit the Canberra Centenary website.


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INTERNATIONAL NEWS

FROM PEACEKEEPERS TO SLAVE TRADERS

AN AUSTRALIAN’S JOURNEY TO THE UNITED NATIONS AND BEYOND


Dr Gallagher spoke on the subject From Peacekeepers to Slave Traders: an Australian’s Journey to the United Nations and Beyond. “Human trafficking is, quite simply, the exploitation of human beings for profit. It is a scourge that is not defeated by barriers of wealth and influence—trafficking is an immense problem for developed and developing nations alike,” Dr Gallagher said. Dr Gallagher is a lawyer, practitioner, teacher and scholar with an established reputation in international affairs, particularly human rights, and the administration of criminal justice. She is a former United Nations Official (1992-2003) and was Special Adviser to the Hon. Ms Mary

In her address to the New York chapter of the Law Council of Australia, Dr Gallagher reflected on her experiences within the United Nations human rights system. “Today, the credibility of the international human rights system is being severely tested as it confronts contradictions and paradoxes that lay bare the fragile consensus on which it is built,” she said. “How countries of influence, like the United States and Australia, confront and combat the most pressing and controversial human rights issues will define our global standing for decades to come.” Address by Dr Anne Gallagher AO "From Peacekeepers to Slave Traders: An Australian’s Journey to the United Nations and Beyond." I’ve been asked to talk a little about my own career path in the field of international human rights law; and also to reflect on the role that Australia has played in this area over the years. In many respects these are two very different topics, but I will combine a few stories about myself and my experiences with some broader reflections on how Australia contributed to the evolution of the international human rights system and on the role that we could (and perhaps should) be playing in protecting it from both erosion and outright attack. Australia at the United Nations Let me begin by saying a few words about Australia’s role in shaping the post WWII world: a world that included, for the first time, a truly global organisation dedicated to peace and prosperity for all nations; and a world that formally recognized the idea of inalienable human rights.

When I speak of ‘inalienable human rights’, I mean: • first of all, rights that are not granted by states, but that are vested in individuals by virtue of their humanity; • second, rights that cannot be denied on the basis of race, sex or religion; and • third, rights that can’t be taken away on the whim of someone or something more powerful. It’s so easy today for people like us to take these ideas for granted; to accept them as a given. But I think that would be a terrible mistake. These ideas are still new; they are still fragile. They fly in the face of human history, which has always accepted the domination of the weak over the strong, the rich over the poor. The idea of human rights is a dangerous and radical one, because it is about the redistribution of power. Quite simply, human rights is about taking power away from the strong – from those who have too much – and giving power to those who don’t have enough. Human rights involves taking power from states and giving it to individuals, taking power from men and giving it to women, and taking power from majorities and giving it to minorities. History, and our own experience, teaches us that human beings do not give up power easily. Once we understand that, we also come to understand that the struggle for human rights is not a one-off battle. It is, rather, a slow chipping away at structures, attitudes and behaviours that have defined the human condition and human relationships, for a very long time. I think those brave and visionary Australians who played a role in shaping the early international human rights system understood this very well. People like Dr Herbert Evatt, who along with a group of robust postwar politicians, bullied bigger and much more important countries than ours into agreeing to the inclusion of human rights protections in the Charter of the United Nations (UN).

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THE WORLD’S LEADING LEGAL EXPERT ON HUMAN TRAFFICKING, DR ANNE GALLAGHER AO, RECENTLY ADDRESSED THE NEW YORK CHAPTER OF THE INTERNATIONAL LAW SECTION OF THE LAW COUNCIL OF AUSTRALIA AT AN EVENT IN THE NEW YORK OFFICE OF LAW FIRM SKADDEN, ARPS, SLATE, MEAGHER&FLOM LLP.

Robinson, formerly President of Ireland and then-UN High Commissioner for Human Rights. In that capacity she was directly involved in the development of new international laws and policies on human trafficking and in advising and supporting more than forty countries in developing effective criminal justice responses. Since leaving the UN, she has continued that work with the Association of South East Asian Nations (ASEAN) and its Member Countries including Thailand, Cambodia and Burma (Myanmar).


INTERNATIONAL NEWS “In my first few years I was given far more responsibility than my experience and maturity warranted. Of course, this is a judgment that I’ve made in retrospect. At the time, it never occurred to me that I likely knew much less than the people I was so eager to help. We were racing around the world teaching police, prosecutors and judges all about integrating human rights into their work. As if we knew.”

He didn’t stop there. As head of Australia’s delegation, Doc Evatt was directly involved in the drafting of the Universal Declaration of Human Rights. It was under his stewardship, as President of the General Assembly, that the Universal Declaration was adopted in 1948. That moment was truly historic. I think it was the first time, and probably the last, that a victory for human rights was greeted with a standing ovation in the General Assembly. It’s impossible to capture the energy and enthusiasm of that moment but Doc Evatt’s proud announcement gives some indication. He predicted that, in the future, … millions of people: men, women and children all over the world would turn to this first-ever declaration of human rights and fundamental freedoms for guidance. Even back then, it wasn’t just the men who were influencing the shape of the international human rights system. There was one woman on the Australian delegation to the UN Charter negotiations. Her name was Jessie Street. Elizabeth Evatt, the great Doc’s niece and a leading human rights practitioner and advocate in her own right, tells the story of how Jessie quickly banded together with the small number of other women who were at the conference. Their goal was to make sure that the preamble to the Charter recognised the equal rights of men and women. Jessie and the other women knew only too well that, when women are not mentioned expressly, they are likely to be excluded. They won, but that victory certainly wasn’t inevitable. Jessie’s battles didn’t end there. The first draft of the Universal Declaration began with the proud words: ‘all men are brothers’. The words we have today, ‘All human beings are born free and equal in dignity and rights,’ are a fine testimony to Jessie and her inspired, resourceful colleagues. Career path at the UN In 1992, 44 years after those momentous events, and at the end of a long series of nail-biting examinations and interviews, I was offered a job – a career – with the UN.

It was the most exciting moment of my young life. The fact that I was Australian and that I would be working in human rights made things even better. I knew of Australia’s proud history; about Jessie Street and Doc Evatt and the many distinguished Australians who had followed them. I knew, or thought I knew, that our young, vibrant country was behind the UN all the way. I knew that Australians were widely appreciated for their sense of fairness and their preoccupation with justice. Unlike many other countries, Australia could almost always be counted on to suppress its own narrow self interest for the greater goal of human rights and basic freedoms. The thought of being able to continue and be part of that tradition was exhilarating. There is nothing quite so absolute and righteous as a 20-something human rights lawyer and the 12 years I served in the UN taught me some valuable lessons in humility. It also taught me to separate the idea of the UN from the reality. This is an institution built by States and run by individuals. Like States and like people it has great weaknesses and frailties, as well as great strengths. An overdue dose of reality did not, however, dim my faith in the idea of the UN – the idea that ‘we the people’ (in the words of its Charter) can join together to prevent war, to promote prosperity and to protect human rights. From the first day, I took those words to heart in my work. In my first few years I was given far more responsibility than my experience and maturity warranted. Of course, this is a judgment that I’ve made in retrospect. At the time, it never occurred to me that I likely knew much less than the people I was so eager to help. We were racing around the world teaching police, prosecutors and judges all about integrating human rights into their work. As if we knew. It was an exciting time to be at the UN. The new criminal tribunals that would lay the foundation for an international criminal court were hard at work. The issue of violence against women, silenced so effectively, for so long, was now firmly on the international agenda.


Dr Anne Gallagher AO And the 1990s was the decade of peacekeeping. During those 10 years the UN set up its biggest-ever peacekeeping operations, in the Balkans and Africa. Peacekeepers were no longer just soldiers but also civilian police. Their job descriptions expanded beyond providing a buffer zone to supporting communities and even protecting human rights. During those first few years at the UN, I was involved in developing the first-ever human rights training program for peacekeepers. Our guinea pig was the UN Operation in Mozambique. Today, almost all UN peace operations have a human rights team. Protection of human rights is a core responsibility of all peacekeeping staff. It doesn’t work perfectly but it’s a different world to 1994. In 1998, when Mary Robinson became High Commissioner for Human Rights, she brought something that, at least for me, was completely new to the UN. The new High Commissioner did not, unlike

her predecessors, consider herself a servant of the States. Her constituency was captured in the first six words of the Charter: ‘We the People of the United Nations’. Mary Robinson didn’t pander to any country or regional group. For her, the rules of international law, and principles of justice and rights were what mattered. It didn’t come as a great surprise when the member states of the UN, led by the United States, refused to renew her mandate. I need to make a small detour here to give you a short cameo of my other UN hero, a person whose time with the UN was also cut too short. Dag Hammarskjold was the second Secretary-General. A quiet, Swedish diplomat, he was the son of a Prime Minister and came from a long line of public service. The Security Council appointed him as a ‘safe pair of hands’. The euphoria of the first days of the UN had faded as the Cold War began to dominate global politics. The big powers were looking for a technocrat who would

I could only read about Hammarskjold but I was able to work with Mary Robinson. Very soon after her appointment, I was asked to take the lead on the issue of human trafficking: a hidden human rights abuse that Mary Robinson had begun to come across on her travels to Eastern Europe and South East Asia. The timing was perfect. After fifty years of inactivity member states had decided to develop a definition and draft a new international treaty that would prohibit trafficking and set out a series of obligations on states to deal with it. The years 1998– 2002 passed in a blur as we worked to make sure this new treaty, and the other instruments it generated, actually worked to advance the human rights of people being exploited for profit. It was a heady time and I feel very proud to have had the chance to learn, from Mary Robinson, real lessons about the politics of international law making. Mary Robinson’s departure coincided with my own decision to leave. I had wanted to work at the UN since I was 12. The experience had been disappointing, frustrating and immensely rewarding, almost in equal measure. The permanent contract had become a gilded cage. It was time to go. Australia’s changing UN role During that twelve-year period, while my illusions about the UN were slowly being dismantled, I was also learning some uncomfortable truths about Australia. I don’t think my initial enthusiasms were

41 JAN–MAR 2013

not rock the boat. Well, Hammarskjold proved to be more of a ‘General’ than a ‘Secretary’. He interpreted his mandate in a way that gave him quite sweeping powers. He began to involve the UN in conflict mediation and to hasten decolonization. This caused great tension with both Cold War powers, as well as with their allies. Hammarskjold was the only Secretary-General to die in office, when his plane crashed during a peace mission to the Congo. He was a brave man. I imagine how sad he would be to see what has become of that country. Especially him: someone who believed that freedom from fear is the true essence of human rights.


INTERNATIONAL NEWS

completely misplaced. While Doc Evatt’s visionary approach of 1948 had quickly given way to the realpolitik of the Cold War, there was always a strong sense of us being in front of the pack. We may not have been Norway but we were at least as good as Canada and much, much better than the United States. Australia’s relationship to the UN’s human rights system took a sharp turn in 1996. Previous governments may have had their reservations about certain aspects of that system but the Howard Government made their distrust very clear. Things became worse as Australia came under heavy criticism from the human rights bodies for its policies towards asylum seekers and its failure to address the situation of indigenous peoples. Those were bleak years and not just for me. I can only imagine how hard it was to be a diplomat forced to front up to one of the human rights treaty bodies; or, even worse, to be a government lawyer, trying justifying a farce like the Tampa incident. In 2000, after one bruising personal encounter with the Race Discrimination Committee in Geneva, Foreign Minister Downer infamously, and rather ungraciously announced: If a United Nations committee wants to play domestic politics here in Australia, then it will end up with a bloody nose. The legacies of those days are still with us. For example, the Howard Government’s decision to not ratify the Optional Protocol to the Women’s Convention, which allows for an individual complaints

procedure, has not been overturned. A new government has not changed our rather abysmal record of implementing decisions and recommendations of human rights bodies. But things are certainly different. Australia has ratified the new disabilities Convention; and has issued an open invitation to the UN special procedures to visit. The Australian Aid program can, once again, openly advocate a rightsbased approach to its work. When Australia won a seat on the Security Council, the Government committed to using its position to be: ‘a principled advocate of human rights for all.’ It will be interesting to see how this commitment plays itself out in the years ahead. Flashpoints and opportunities I want to finish up by just briefly outlining what I see to be the human rights flashpoints of the next few years. First of all, I think it is important for us to realize that ours is a very different world. The energy, enthusiasm and commitment for human rights that saw the adoption of the Charter, the Universal Declaration, and a raft of human rights treaties, have long since dissipated. We should be very grateful to have these instruments and the procedures attached to them, because there is no doubt they would never get through if proposed today. The past decade has confirmed this absolutely. It is sobering to think about just how quickly after 9/11 governments were able to roll back established rights in the name of ‘national security’:

• the right to privacy; • the prohibition on arbitrary arrest and detention; • even the prohibition on torture. It’s even more sobering to think about how quickly and easily we rolled over and let this happen. Someone once described the development of the international human rights system by states as being like a fox building a henhouse. The fox knows that it’s wrong to eat chickens. He agrees chickens should be protected. But he also realizes that one day he may be very hungry and need to get in. So, the henhouse includes a few gaps and weak points, just enough for a hungry fox to wriggle through. I think that the henhouse of the international human rights system has turned out to be a little stronger than many governments would have wished. Our job in the future will be less to expand what is there than to try and preserve what we have from erosion and attack. And the human rights movement itself will need to be more reflective and thoughtful if it wants to preserve credibility and relevance. One of the tenets of that system is that all human rights are equal. It follows that there can be no conflicts between rights. But we know this is not true. For example, freedom of religion and belief can and does conflict with the rights of women and the prohibition on discrimination. It is no surprise to me that those most preoccupied with curbing the freedom of women are the most aggressive proponents of freedom of religion.


• For the right, any attempt to expand human rights protections is, almost by definition, something to be resisted. • For the left, expansion is always good. The more human rights and the deeper their reach, the better. We should all be resisting this reductive and simplistic analysis. • One can be a staunch defender of human rights and still believe that the state has no right to interfere in the minutiae of human relations. • For that matter, one can be a staunch defender of human rights without necessarily believing that the solution to our ills is an expansion of the concept of discrimination, or indeed, a judicially supervised bill of rights. Much more important is the substance of the issue. What are the human rights problems that we are trying to solve? What tools can we use to solve them? Law is one tool in a much bigger kit. We lawyers in particular need to remind ourselves that law can be a very crude way of trying to change attitudes and behaviour. I’ve touched on a couple of challenges: the threat to human rights posed by the ‘national security’ imperative; and the question of very real conflicts between rights. These are urgent and important issues that we can’t afford to ignore or minimize. Slavery and freedom But I do think it is possible to finish up on a positive note. I do believe there is one area of human rights where progress is being made: steadily and in a way that will prove impossible to reverse.

It is a happy coincidence that this is in my area of work. When I first began to study and work in human rights, the issue of human exploitation was not even part of the conversation: forced labour, bonded labour, servitude, sexual exploitation, forced marriage, all these concerns were off the table. At least in relation to these practices, the sovereignty of states appeared to be impermeable. All that has changed. Today, it is politically impossible for any state to defend exploitation of foreigners or nationals within their territory as not being the business of the international community. It is also impossible for states to hide what is happening: • We now know about forced labour and the sale of girls in China. • We now know the extent of bonded labour in India. • The exploitation of farm workers in the southern states of the US is common knowledge; • The use of debt bondage to exploit Thai and Korean women in the Australian sex industry is not just the stuff of tabloids, it’s gone to our High Court. The link between all these practices is the denial of freedom. Whatever their particular manifestations, all have involved taking the freedom away from one person in order to serve the interests of another. Freedom can be tricked out of someone. It can also be forced or coerced. Sometimes, the capacity to play on vulnerabilities caused by poverty, violence and abuse of human rights is sufficient to be able to take away someone’s freedom. I think that in relation to all human rights issues, freedom is the most appropriate starting point, from which we should be thinking and working. Not least because it expands our view of what is important and what can be done. Freedom is not just about the people we are working to liberate, it is also about us. Nelson Mandela said it much better than I ever could: For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others.

In the case of modern slavery, it’s easy for us to be horrified while absolving ourselves of direct responsibility. But that is wrong. As Nelson Mandela said, true freedom is not just about the shackles and chains of others, it is about how we live. Human exploitation has built our world and continues to drive global economic growth. Cheap labour, cheap sex and cheap goods are woven into the fabric of our national economies, our communities and our individual lives. It’s sobering to wonder just how big our individual ‘slavery footprint'' might be. In his address to the British Parliament, that signalled the end of the transatlantic slave trade, William Wilberforce used his gifts as an orator and writer to win minds and hearts over to the cause of equality and freedom. Wilberforce said something in that address that has stuck with me throughout these past 20 years. It has particular resonance for the issue of modern slavery but in fact can be applied to all issues of justice and human rights. I give the last word to this remarkable man: You may choose to look the other way but you can never say again that you did not know.

The Law Council wishes to thank to the event organisers and host firm, New York Chapter Deputy Convenor Anne Bodley, Convenor Susan Davies, and Timothy G. Nelson of Skadden, Arps, Slate, Meagher & Flom LLP.

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And what about the prohibition on discrimination itself? How far does that go? I’m sure many of you have been following the recent debates in Australia over the question of whether merely offending someone on the basis of race, religion or sex should be regulated by law. For me, one of the most interesting aspects of this debate was the way it played out between the ‘left’ and the ‘conservative’ sides of politics. Certainly it confirmed my belief that both sides are lazy and unreflective when it comes to human rights.


NATIONAL NEWS


Noor Blumer, President, ACT Law Society

AUSTRALIAN CAPITAL TERRITORY

Judicial complaints process Last year, the ACT Law Society wrote to the Attorney-General, Mr Simon Corbell MLA, raising the need for a mechanism by which complaints could be made about the judiciary. At the moment, apart from informal methods, the only tool available is the calling of a Judicial Commission. This is inappropriate for less serious complaints. We are delighted that the AttorneyGeneral has released a discussion paper for public consultation on creating a statutory framework to manage complaints about judicial officers (judges, master, magistrates and tribunal members), and to clearly set out responsibility for arranging court business in ACT Courts. We are also delighted that reform of the arrangements for judicial officer complaints handling was an election commitment. The discussion paper Judicial Complaints and Arrangement of Court Business examines options for reform in the ACT, with a focus on models used in NSW and recently legislated in the Commonwealth and also examines Commonwealth legislation providing express powers to heads of jurisdictions to manage the workload of judicial officers and ensure appropriate access to health assessments, counselling services and judicial education. The Society’s 80th Birthday The Society is turning 80 this year, and in celebration of this milestone you’ll find a couple of themed events in 2013. The theme for Law Week this year is ‘80 Years of Law and Justice.’ Law Week is a national event which runs from Monday 13 to Saturday 18 May, and in Canberra it’s an

The Law Society’s Annual Dinner will be held on 29 August 2013. The Law Society was formed in 1933, and we’ll be hearkening back to that era for a very special evening. Lastly, our fortnightly e-newsletter Hearsay is featuring special ‘Last Words’ all this year. Our Communications Officer will be trawling through the archives and presenting each fortnight a new humourous piece of the Society’s history. Review of the Society’s complaints and disciplinary powers and procedures Last year the Law Society reviewed its process for handling complaints and disciplinary matters. The proposed changes of delegations and procedures have been provided to the Attorney-General. The new procedures will start on 1 March 2013. Many thanks to our hard working Complaints Committee who will continue their work, but with expanded numbers, including some lay members, to deal with the extra responsibilities. Commencement of the Legal Year Ceremony On Monday 4 February I had the privilege to open the Celebration Ceremony to welcome the 2013 Legal Year, held at University House on the grounds of the Australian National University. This ceremony is an old tradition of the legal community, but in 2013, the year of Canberra’s Centenary as well as the 80th anniversary of the ACT Law Society, it was an appropriate time to find a new expression for the event. Reflecting the diverse backgrounds of members of the legal profession, the 2013 ceremony was designed with a secular focus. It is an opportunity for the legal community to re-dedicate themselves to the principles of the profession, and to reflect on their

roles in the justice system. Robyn Archer AO, Creative Director of The Centenary of Canberra, delivered the address, speaking about the relevance of Centenary events to the legal profession. The ACT Attorney-General spoke about the administration of justice in the ACT, and the Chief Justice of the ACT Supreme Court, the Hon. Terence Higgins AO, delivered a thoughtful speech on legal ethics. A highlight of the event was the soaring choral interludes provided by the Toe Talatalano Choir. The acoustics of University House’s Great Hall made it a very special event indeed. International Lawyers Committee Launch The Chief Justice of Australia, the Hon. Robert French AC and the Dean of the Diplomatic Corps, His Excellency Pedro Villagra Delgado launched the International Lawyers Forum on 13 February 2013. Guests included lawyers from many of the embassies and high commissions as well as representatives of many aspects of the local legal profession. Enthusiasm is high to form a committee to continue the forum and exchange of ideas on matters of legal importance and also to foster relationships with the ACT legal profession.

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opportunity for the profession to get together and have a bit of fun while raising money for a local charity. The ACT Golden Gavel Speaking Competition will be held at the launch on Monday, and our Blackburn lecturer this year is Michael (Dan) Mori. The full Law Week schedule will be released soon.


Advancement of Women The availability of flexible working arrangements for returning to work after an absence, particularly parental leave, and the need for mentoring and networking support were both contained in the recommendations of the Society’s Advancement of Women in the Profession Report, published in December 2011. The release of our flexible working materials and the launch of a newly introduced Women’s Mentoring Program means we are now closer to fulfilling our commitment to full implementation of these recommendations by June this year. Our mentoring program for female solicitors at around 10 to 15 years post admission has been extremely well received, almost doubling in size to accommodate the volume of protégées seeking mentors. Career Development Pricing pressures, globalisation, new technology and shifting demographics have altered the legal services market. This means that lawyers, from recent graduates through to senior partners, are having to play a whole new game in which the rules for forging a successful career have yet to be established. In response to this changing environment, the Law Society recently introduced a new initiative aimed at equipping its members with the skills they need to excel in their careers. The Law Society of New South Wales Career Hub, launched in March, is an online resource, providing members with a one stop shop for developing new skills; building constructive workplace relations and even negotiating a pay rise. The online Hub is also fully integrated with the

Queensland Law Society

The New South Wales (NSW) Government’s recently announced review of third party motor accident insurance is now well into the initial consultation period, with submissions due by 5 April. The profession has been working hard to preserve vital benefits that exist within the scheme, including Lifetime Cover for the catastrophically injured and no-fault compensation for children injured in motor accidents. We have also been emphasising the important role of lawyers within the system, in guaranteeing that the injured receive the compensations they are entitled to. Through our Injury Compensation Committee, the Society continues to analyse the proposals and to press the case for meaningful consultation with the profession on the substance of these reforms.

QUEENSLAND

Motor Accident Insurance

The Law Society of New South Wales

NEW SOUTH WALES

Society’s refocused CPD program which will see a stronger emphasis on skills development in 2013.

Forcing the law’s hand is hamfisted justice

Thought leadership

The Queensland Government continues to introduce bills affecting judicial discretion, introducing mandatory sentencing in three new laws in as many months. The Criminal Law Amendment Bill (No 2) 2012 introduced a new mandatory graffiti removal order and also included a requirement for those convicted of drug trafficking to serve a mandatory minimum non-parole period of 80 per cent of their sentence.

The Society’s popular thought leadership activities have continued in 2013, with the launch of a major series focusing on topical business issues affecting legal practice and the business community. The first event in the 2013 Thought Leadership Business Series took place on 19 March, and focused on fraud, bribery and corruption.

The Police Powers and Responsibilities (Motor Vehicle Impoundment) and Other Legislation Amendment Bill 2012 proposes automatic confiscation of motor vehicles should police deem the driver was “hooning”. This presents an interesting situation, particularly for finance companies who would suffer the loss of a security against which money is owed. Then there’s the Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Bill 2012 which reverses the onus of proof and enables the government to seize people’s legitimately earned assets. Based on the presumption of guilt rather than innocence, the accused must then prove that their wealth or assets were obtained using legitimate proceeds. What the law lacks in reason it makes up for in redundancy as the Criminal Proceeds Confiscation Act 2002 already enables judges to penalise people convicted of major crime and drug offences in this manner.


JAN–MAR 2013

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Queensland has introduced seven new mandatory sentencing regimes in less than 12 months and the Society will continue to present its case against these regimes to the government. Attempt to clean up proves untidy In January, the Queensland Government introduced proposed directors’ liability reforms, without public consultation, in an attempt to sort out a complex and unjust area of corporate law. Unfortunately, the resulting Bill not only further confuses the issue, but could damage the state’s economic competitiveness. The issue of liability, which renders directors responsible for company misconduct whether they’re aware of it or not, is peppered in more than 50 Queensland Acts. In a recent article in The Australian, Queensland Law Society (QLS) company law committee chair Bruce Cowley highlighted New South Wales laws as the ‘model for reform’ as they had reduced the number of laws with this issue of directors’ liability from 100 to six. It’s a concern for Queensland business as commercial laws that contain, in effect, a reversal of the onus of proof, can drain Queensland companies of talented directors and inhibit economic growth. The state government’s first pass at fixing the legislation contains layers of complexity, introducing Type 1, 2 and 3 liability provisions with corresponding assumptions of guilt for directors, but offers no clear rationale for why some offences still require a director to prove their innocence. QLS has raised these issues in a submission to government which is currently reviewing the proposed law.

Drug laws high on ambiguity QLS has recommended proposed changes to the Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Bill 2012 be reviewed to ensure concepts are clarified. Examples included clauses that referred to: • ‘possessing relevant substances or things’ that reverses the onus of proof; it has a defence of reasonable excuse but no definition on the parameters; and • ‘possessing things’ has such a broad provision that it could criminalise the activities of doctors, nurses, veterinarians and even diabetics. QLS argued to the state government that the Bill upsets the major principle of the general presumption of innocence and its language needs to be clarified. Sri Lanka impeaches Supreme Court Chief Justice In early January QLS wrote to the Bar Association of Sri Lanka’s President’s Council expressing concern over the (then) pending impeachment proceedings of Supreme Court Chief Justice Shirani Bandaranayke before a Parliamentary Select Committee. The letter contained particular emphasis on the internationally agreed United Nations Basic Principles on the Independence of the Judiciary. The principles enshrine the freedom of the judiciary from government interference and guarantee the right for impartial decision making free from external influence. QLS continues to advocate on this issue.

Changes to Mental Health Act a serious concern In a submission to the Queensland Government, QLS detailed a number of serious concerns about proposed changes to the Mental Health Act 2000. Two changes in particular have rung alarm bells. Clause 61 provides that a patient’s treatment plan can include ‘any monitoring condition required by the Director under section 131A’. Monitoring equipment may be similar to those used by people classified as dangerous sex offenders – a measure the patient could interpret as punitive and that could lead to social stigma and discrimination. Another proposed clause would allow the Director to publish the identity of a young person. The Society is concerned that this will have a negative impact, effectively ‘naming and shaming’ young persons with mental illness or substance abuse issues. QLS has strongly recommended both clauses be removed from the Bill. The submission is available on the Queensland Parliament website.


John White, President, The Law Society of South Australia

SOUTH AUSTRALIA

As Treasury begins putting together the state Budget, the Law Society of South Australia sees the prospect of further cuts to the overburdened justice system. Already seriously underfunded, South Australia’s Courts Administration Authority, as well as other justice providers, can ill-afford another ‘slash and burn’ budget season. But with all public indicators pointing toward a tough budget, there is widespread concern among those working to achieve justice in our state.

Legal Rights Movement or ALRM. And of course the Law Society of South Australia. Even the SA Police have been publicly warned that all their budget wishes may not come true this year – and you know it’s serious when a state election is looming and the police aren’t even getting what they want! Recent judgments in the District Court have focused attention on problems with legal representation that has been provided to some disadvantaged clients due to the poor funding and heavy workload of legal aid lawyers. It is no doubt a sign of things to come, if the government follows through on foreshadowed cuts. The Law Society is urging the Government to re-consider its slated budget cuts, in the interests of justice for all South Australians.

He has warned that cuts will lead to a blowout in court backlogs, increased costs for parties and even risks to public safety, as some defendants are released on bail due to the long wait for their trial. The Chief Justice also observes that a ‘saving’ at the courts end will mean additional costs at the corrections end, as some remandees spend longer behind bars awaiting trial. Cuts in one area of the justice system lead to expenses in other areas. The Chief Justice isn’t alone in his pessimistic predictions and while they may sound sensational they are based firmly in reality. His worries are widely shared by the legal profession, the Legal Services Commission and the Aboriginal

Law Society of Tasmania

The Society supports His Honour’s clear and public warnings that further budget cuts to our courts will have deep consequences. His Honour has stated that proposed budget cuts will prevent the minimum necessary support for judges and magistrates, with the same effect as cutting their numbers.

TASMANIA

And that includes the Hon. Chief Justice Chris Kourakis.

Opening of the Tasmania Legal Year 2013 The Legal Year was opened on 1 February 2013 with a traditional church service held at St David’s Anglican Cathedral in Hobart. Ms Fiona McLeay, Executive Director of the Public Interest Law Clearing House (PILCH), delivered an inspiring speech on how lawyers can use their professional skills in the public service. Ms McLeay said that she had come to believe that the “best lawyers were those who approached their professional practice with this vision of law as public service. Many of them did pro bono work as their way of living this out”.

In closing, Ms McCleay invited each member of the legal profession to renew their vision and encouraged them to “ground their work in the law as public service” in the year ahead. Law Society 50 year Anniversary Dinner The traditional dinner held to mark the Opening of the Legal Year was also a celebration of 50 years of the combining of the Southern and Northern Tasmanian Law Societies to form the Law Society of Tasmania. The President of the Society, Mr Greg Geason, opened the dinner which welcomed more than 180 practitioners including 12 past Society Presidents which notably included Chief Justice Crawford, Justice Blow and Justice Porter. In honour of the 50 years, the Attorney-General, the Hon. Brian Wightman, delivered a speech reflecting on the history of the Society that started out as the “Van Diemen’s Land Law Society” which was established in 1845. The Attorney went on to explain that difficulties in communication and travel between the North and South meant that in 1888 the profession resolved to divide the Society into the Southern Law Society and the Northern Law Society. For the next 78 years, the Tasmanian legal profession continued to be represented by two separate Law Societies. It was not until 1963 that the Societies once again became unified and formed the Tasmanian Law Society which continues to represent the Tasmanian legal profession today. Continuing Professional Development The Law Society is approaching the end of the first mandatory year of CPD which has been a great success and embraced by the profession. The Law Society has held a range of seminars that were well attended by the profession and included a Practice Management Conference held on 22 February 2013. This Conference was a joint initiative of the Law Councils Legal Practice Section and the Law Society of Tasmania.


Appointment of Justice Tree as a judge of the Family Court of Australia The Society was pleased to hear of the appointment of Mr Peter Tree SC as a judge of the Family Court of Australia on 23 January 2013. The Hon. Justice Tree was admitted as a barrister and solicitor in the Supreme Court of Tasmania in 1991 following which he worked as a solicitor with Zeeman Kable and Page from 1991–94. Justice Tree then practiced at the private Bar for over 20 years in the areas of commercial disputes, disciplinary proceedings relating to legal and medical practitioners, judicial review of administrative decisions and family provision claims. Justice Tree took silk in 2004. The Law Society of Tasmania congratulates Justice Tree on his appointment.

Reynah Tang, President, Law Institute of Victoria

JAN–MAR 2013

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VICTORIA

The Practice Management Conference was held in Hobart and focused on “Supercharging Your Practice” with four speakers covering the essential elements of law firm management which included strategy/business planning, finding and retaining talent, developing your client base and maximising your profits. The Conference was well attended with very positive feedback and the vast majority of practitioners said that they would attend in 2014.

Eligibility for legal aid has gotten so narrow in Victoria that not even people living below the poverty line will necessarily qualify for legal aid. This fact is at odds with what and who legal aid is - or should be - for. A great number of litigants, many of them the “working poor”, have little choice but to represent themselves in court. Navigating our complex legal system without expert help is undesirable from an individual’s point of view, but also for the courts. The conduct and outcome of trials is impacted and the subsequent increases in costs and delays impede the effectiveness of the entire justice system. The result is restricted access to justice and compromised protection of legal rights. If a society is judged by how it treats its most vulnerable then Australia is found sorely wanting. Up until 1997, the Commonwealth and states and territories each contributed 50 per cent of the funding needed for legal aid. Now, the Commonwealth contribution is less than a third and shrinking in real terms. This has resulted in Victoria Legal Aid (VLA) reporting a $3.1 million deficit for 2011–12, and introducing tougher eligibility guidelines for family, child and criminal law matters. Meanwhile, in February, funding for the Mental Health Legal Centre (MHLC) was cut. The legal assistance sector’s chronic underfunding is despite enormous unmet legal need in Australia, which is concentrated among the most disadvantaged and vulnerable – children, the disabled, unemployed, single parents, indigenous Australians and those on welfare.


Almost three-quarters of CLCs report being unable to fully meet demand for their services. In 2010–11, 14 per cent of those seeking help, or almost 12,000 people, were turned away entirely. Services have been scaled back, waiting lists are longer and staff and volunteers work longer hours to help cope. The situation experienced by CLCs is mirrored elsewhere. According to the 2012 Australian Community Sector Survey by the Australian Council on Social Services (ACOSS), 73 per cent of legal service providers could not meet demand for their services. This is unsatisfactory at many levels, not least the personal level. Many legal problems have a substantial impact on everyday life, leading to income loss or financial strain, stress-related illness, physical ill health and relationship breakdowns. And the chronic underfunding of legal aid does not make fiscal sense; it is a false economy. For every dollar invested in legal assistance there are substantial savings down-stream. Actuarial modeling undertaken by Price Waterhouse Coopers in 2009 has shown that for every dollar invested in legal aid, there is a saving of between $1.60 and $2.25 in the delivery of justice. Similarly, a report by Judith Stubbs and Associates in 2012, indicated that for every dollar the Commonwealth invests, CLCs return a benefit to society that is 18 times that cost. In dollar terms, the $47 million spent on the CLC program nationally in 2009-10 would yield about $840 million in benefits to Australia. The sustained underfunding of legal aid comes despite commitments by the Federal Government to prevent and minimise social exclusion across Australian society.

This was appreciated, but it is a mere drop in the ocean of unmet legal need.

In concert with the Law Council of Australia, which has spearheaded lobbying for the national legal profession, the LIV calls for a substantial injection of funds into legal aid. We want: • the Commonwealth to commit to a pre-1997 funding level of 50 per cent (up from less than 33 per cent now) of legal aid requirements, which translates to an additional $76.2 million in 2013–14, and $79.39 million in 2014–15; • increased and separate funding for CLCs, Aboriginal and Torres Strait Islander Services (ATSILS), immigration review matters and disaster response; • a co-operative federalism model to replace the current legal aid funding arrangement, and reinforce the national delivery of access to justice standards in Australia. In particular, Commonwealth funding should not be narrowly restricted to Commonwealth matters; and • consultation with all constituent bodies as part of the review of the National Partnership Agreement on Legal Assistance Services (NPA Review), established by the Attorney General in January 2012. Separately, the LIV has also asked the Victorian Government for increased funding in its next budget due to the increased demand brought about by criminal law changes through its ‘tough on crime’ policies. At a rally on the County Court forecourt in December, a range of speakers called on the government to urgently bolster support for legal aid to match the increased demand and resolve the systemic imbalances brought about by the government’s funding of more police, Protective Service Officers (PSOs) and child protection workers. The Victorian Aboriginal Legal Service got a one-off payment of $143,513 from the Federal Government in February as part of an $8 million national funding grant for families with parenting disputes or trials before the Family Court.

The Victorian Bar

Annually, an estimated 8.5 million Australians aged 15 years and over experience a legal problem. Of those, 31 per cent are left to handle the issue without legal assistance and 18 per cent simply do nothing. Community Legal Centres (CLCs) are unable to deal with the demand.

Come May, the Federal Government has an opportunity to ‘right these wrongs’ in its 2013–14 budget.

VICTORIA

As the population has increased, so has legal need.

RAP Launch The opening of the 2013 legal year also marked the official launch of the Victorian Bar’s Reconciliation Action Plan (RAP) following formal adoption of the plan in October 2012 by the Bar Council and more than 30 years after Mr Mick Dodson, Victoria’s first Indigenous barrister signed the Bar Roll in 1981. The RAP was the product of nearly 18 months’ work of the Bar’s Indigenous Lawyers Committee, involving current and previous practising Indigenous members, led by chair Mr Daniel Star. It also puts the Victorian Bar in the company of a growing number of legal bodies , including the New South Wales (NSW) Bar in December, the Law Council of Australia and the Law Institute of Victoria and law firms in adopting the plan to consolidate organisational commitment to Indigenous equality. Key speakers at the launch included Gunditjmara Elder Jim Berg, the first Koori employee of the Victorian Aboriginal Legal Service, and founder the Koorie Heritage Trust, Victoria’s first woman Indigenous barrister (and second Indigenous person to sign the Bar Roll in 2006), Ms Linda Lovett, Indigenous barrister Ms Robin Robinson and Ms Fiona McLeod SC, Chair of the Victorian Bar. It was an extremely well attended launch, with many current and past judges in attendance, a strong showing by the members of the


The RAP, which went through a process of acceptance by Reconciliation Australia, includes mentoring and peer support programs and a work experience program for Indigenous secondary school students, a series of policy financial supports designed to assist Indigenous barristers to begin and maintain thriving practices. There are also initiatives for improved legal services for Indigenous persons as clients of barristers. A copy of the Victorian Bar RAP can be downloaded from www.vicbar.com.au Thinking Big in 2013 – Bar Conference The Annual Bar Conference was hosted in March and focussed on big ideas, big cases and bigger opportunities for practice development in 2013. Keynote speakers included the Victorian Attorney-General, the Hon. Robert Clark who set out his plans for the Courts and legislative program. Other speakers included Associate Professor Rufus Black (University of Melbourne) and Dan Mori (now in Australia with Shine Lawyers following a 28 year military career during which he famously represented David Hicks until his release from Guantanamo Bay in 2007). The 2020 Barrister – Performance, Improvements and Progress (held on 15 and 16 March in Melbourne) included a packed program which focussed on practice development, advocacy techniques and critical skills in persuasion, presentation and practice management. Bar Readers commenced in March Forty-six candidates who sat the November Victorian Bar Readers exam were offered places in the March 2013 intake of new Bar Readers. Of the candidates who sat, offers were made to those who achieved the pass rate of 75 per cent in an exam which assumes a high degree of detailed, up-to-date knowledge of evidence, procedure and ethics, ensuring those who accept places in the new Bar Readers course can

move seamlessly into the course which now has a more intensive focus on advocacy skills and expertise. The Victorian Bar congratulates all new readers and looks forward to seeing all of them at the completion of the course. New silks appointed – first under new model The end of 2012 saw the Victorian Bar welcome the appointment of 20 new silks by the Chief Justice, the Hon. Marilyn Warren AC, on 27 November, followed by their welcome on 7 December. They are the first group to be appointed under the new model for the silks selection process piloted in 2012. The pilot retained the court’s oversight and ultimate decision making, with the Chief Justice centrally involved as the appointor of senior counsel, and implemented a number of improvements to the process to help with the workload. Key to the new model was to provide greater clarity to applicants and help them put forward the best possible application for the rigorous selection process. This included the appointment of a preliminary evaluation committee which reviewed all applications and made recommendations as to those counsel who might be considered for appointment as senior counsel to the Chief Justice. The committee was chaired by the Hon. Stephen Charles QC and senior members of the Bar Council, the Bar and solicitors. As in previous years, the Chief Justice consulted broadly before deciding the appointments. The new model was the result of widespread consultation across the profession and the judiciary. It will now be reviewed for this year’s (2013) Silks selection process. Issues on the go – jury directions, reserve judges, legal aid, sentencing The past three months have seen a number of issues impacting on the administration of justice in Victoria highlighted in public discourse.

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Victorian Bar and the profession – including Indigenous law students.


when she was appointed as a Magistrate at the Family Court of Western Australia. The Society also gratefully acknowledges the work of the late Justice Carolyn Martin and Justice Stephen Crooks whose tireless work in this important jurisdiction was of immeasurable value.

Also in December, the Victorian Bar and the Criminal Bar Association jointly expressed deep concern over the introduction of legislation to the Victorian Parliament to create statutory minimum sentences for serious injury offences involving ‘gross violence’.

Mr Craig Slater, President, Law Society of Western Australia

Victorian Bar Chair, Ms Fiona McLeod SC, addressed a legal aid rally in December, where the focus was on the ever-tightening budget for legal aid to assist disadvantaged Victorians, with the result being that more unrepresented litigants are before the Courts. Another program designed to support those who are most disadvantaged in our communities; the jointly funded state and Commonwealth Foresicare program has also undergone cuts. Forensicare provides Mental Health Court Liaison officer service but the cuts have resulted in the withdrawal of services from several metropolitan courts. This service provides assessment of accused who present with apparent suicidal or acute mental illness conditions and provides expert advice to the courts in those matters.

WESTERN AUSTRALIA

The Bar welcomed two initiatives by the Victorian Government - the implementation of a regime of ‘reserve’ judges made up of retired and former tenured judges and magistrates to replace the previous regime of acting judges and magistrates, and the introduction of simplified jury directions.

The appointment of two new judges to the Family Court will certainly help alleviate the backlog of cases awaiting a hearing date.

This is a message from the 2013 President of the Law Society of Western Australia, Mr Craig Slater. I am very pleased to be the 2013 President of the Law Society of Western Australia. I propose to continue to engage with the membership; but also, and very importantly, government (both executive and judicial) and business. The Society’s outstanding committees enable us to deliver the benefit of the wisdom of people actually working in the law to those who make the laws, administer the law, or simply do not understand the law. This is a powerhouse for generating respect for the legal profession. Family Court I would like to welcome the state Government’s newest appointments to the Family Court of Western Australia: The Hon. Justice John Walters; and The Hon. Justice Susan Duncanson. Justice Walters has practised in the area of family law since 1975, and was appointed Queen’s Counsel in 1997. He served as a Federal Magistrate in Melbourne for 11 years. Justice Susan Duncanson started her legal career in Scotland before moving to Australia. In 1995, she joined Kott Gunning and became partner in 1998 practising exclusively in family law until 2003

I’m pleased to report that the Society has drawn together a Family Court Working Group to look at ways that delays can be alleviated in the Family Court. In the next few months I am looking forward to working with the group and making recommendations to reduce that backlog. After a couple of meetings the group has already formulated several good proposals. Senior Counsel In November 2012, the Chief Justice of Western Australia, the Hon. Wayne Martin AC announced the appointment of two new senior counsels. The appointments are Mr Joshua Thomson and Mr Rod Hooper. The promotion of excellence in the profession is a core value of the Society. The Society is very happy to commend these Western Australians for their high achievement in the profession. Senior Counsel Report Finalised In November last year, the Council signed off on a paper adopting a position on the appointment of Senior Counsel in Western Australia. The paper is the result of a lengthy conferral with all sections of the profession in Western Australia. It is the genuine wish of the Council that this paper contributes in a positive way to improving this key feature of our profession.


division OVERVIEWS

CRIMINAL LAW & HUMAN RIGHTS division

JAN–MAR 2013

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The Criminal Law and Human Rights Division’s work involves advocacy and policy development concerning national criminal law issues and both national and international human rights issues. The Division receives valuable assistance from constituent bodies and Law Council Committees in undertaking this work.


Some important recent developments for the Division include: the consultation on the Terms of Reference for the Royal Commission into Institutional Responses to Child Sexual Abuse; the Government’s release of an exposure draft of the Human Rights and Anti-Discrimination Bill 2012; and the inquiry by the Parliamentary Joint Committee on Human Rights into the provisions of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (the Regional Processing Act) and related Bills and Instruments. Consultation on the Terms of Reference for the Royal Commission into Institutional Responses to Child Sexual Abuse On 28 November 2012, the Law Council made a submission to the Secretariat assisting the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) in response to a consultation paper issued by the Government on 19 November 2012. The consultation paper sought input on the arrangements for the establishment of the Royal Commission such as the scope of its Terms of Reference, its form, reporting timetable and the number and qualifications of Commissioners. The Law Council emphasised its concern at the short timeframes allowed for this consultation process, and noted the experience of other relevant inquiries such as the Royal Commission into Aboriginal Deaths in Custody which highlighted the need for a more comprehensive understanding of the matters to be addressed and the challenges that may arise before the Terms of Reference were set. The Law Council suggested that the Royal Commission would be most effective by focusing on systemic issues rather than on questions of individual blame or culpability. It supported appointing multiple Commissioners to ensure a diversity of skills, knowledge and experience, as well as appropriate workload management. The Law Council also suggested that it may be desirable to form panels of Commissioners which each focus on

different aspects of the Royal Commission, and emphasised the need for certain key safeguards including free legal assistance where necessary, and procedural fairness for all involved.

On 24 December 2012, the Law Council made a submission to the Senate Legal and Constitutional Affairs Committee (the Committee) as part of its inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (the Draft Bill).

On 17 December 2012, the Law Council appeared before the Parliamentary Joint Committee on Human Rights (Joint Committee) as part of its inquiry into the provisions of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (the Regional Processing Act) and related Bills and Instruments. This inquiry, which covers a number of aspects of the Government’s offshore processing policy, follows calls from the Law Council and other organisations for the Joint Committee to assess these laws and policies for compliance with human rights standards.

The Law Council has actively participated in each stage of the consultation process for this consolidated Act including through the development of a Policy Position and submissions in response to a Discussion Paper released by the Attorney-General’s Department in 2011.

The Joint Committee asked the Law Council a number of questions regarding the extent to which the Government’s laws and policies in this area are inconsistent with Australia’s international obligations, including the right to be free from arbitrary detention and the right to a fair trial.

In line with its previous advocacy on this issue, the Law Council generally welcomed the release of the Exposure Draft legislation and identified many positive features of the Draft Bill. However, the Law Council also identified areas in need of immediate attention to ensure that the Draft Bill is able to meet its dual aims of promoting equality and reducing the regulatory burden for business. Some of these concerns related to ensuring that the test of discrimination, which refers to ‘unfavourable treatment’, is clarified to ensure that an objective standard applies; and addressing the complexities arising from the incorporation of a proportionality based test in the ‘justifiable conduct’ exception.

The Law Council also submitted that unless the Government implements all the recommendations of the Expert Panel on Asylum Seekers it may be in breach of Australia’s human rights obligations in this area.

Release of exposure draft legislation - Human Rights and Anti-Discrimination Bill 2012

Public hearings were also conducted in relation to this inquiry in Melbourne, Sydney and Canberra. The Law Council, represented by Mr Nicholas Cowdery QC gave evidence before the Committee at its Sydney hearing on 24 January 2013. Inquiry by the Parliamentary Committee into the provisions of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012


protection of private information and amending the compensation recovery provisions to clarify that a scheme participant cannot be forced to seek compensation under the common law or another statutory scheme.

The CJD prepared submissions to Parliamentary inquiries into the National Disability Insurance Scheme Bill 2012 (the NDIS Bill) the Native Title Amendment Bill 2012, the final report from the Expert Panel on Constitutional Recognition of Local Government the Department of Families, Housing, Community Services and Indigenous Affairs’ consultation on the Workplace Gender Equality Act 2012. The CJD has also progressed the National Attrition and Reengagement Study (which will examine the reasons why lawyers, particularly women, choose to leave the profession and devise strategies for retention and re-engagement of legal practitioners); and engaged in advocacy in relation to legal assistance sector funding.

Subsequently, the Government released a Consultation Paper on the NDIS Rules in February 2013, which seeks views about the possible content of the rules, including eligibility and the definition of ‘reasonable and necessary supports’. The CJD prepared and lodged a submission in response to the Consultation Paper on 4 March 2013, with the assistance of the Law Council’s NDIS Working Group. The Law Council noted in its submission that the Consultation Paper lacked detail and further consultation should be held in relation to the draft Rules, once developed.

A major area of work for the CJD was in relation to the NDIS. On 25 January 2013, the Law Council lodged a submission in response to the Senate Community Affairs Committee’s Inquiry into the NDIS Bill. In preparing this submission, the CJD was advised by the Law Council’s NDIS Working Group. The CJD invited contributions from constituent bodies and received detailed responses from the Law Institute of Victoria and Law Society of South Australia, which fed into the Law Council’s final submission to the Senate Committee. The Law Council also engaged with other stakeholder organisations, including the Australian Medical Association and some disability groups, to gain a better understanding of the broader views about the NDIS Bill within the community. The Law Council’s submission was broadly supportive of the model proposed by the NDIS Bill, but identified a number of amendments that might improve the scheme. These included setting out the criteria for eligibility and reasonable and necessary supports within the Bill, rather than subordinate Rules yet to be drafted, addressing concerns about

On 5 March 2013, representatives of the Law Council appeared and gave evidence at the Senate Community Affairs Committee’s public hearings into the NDIS Bill, at Parliament House in Canberra. The Law Council expanded on a number of its written submissions, which were well received by the Committee. Over the next quarter, the CJD will be coordinating the roll-out of the National Attrition and Reengagement Study, the first of its kind conducted in Australia. The Law Council will also continue to monitor the development of the NDIS, implement the Law Council’s Reconciliation Action Plan and engage with the Review of the National Partnership Agreement on Legal Assistance Services.

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CIVIL JUSTICE division The Law Council’s Civil Justice Division (CJD) provides legal policy advice and engages in advocacy across a broad range of government portfolios and legal practice areas.

In the first quarter of 2013, the Law Council’s Civil Justice Division (CJD) has prepared a number of submissions, engaged with government inquiries and progressed a number of Law Council projects.


division

INTERNATIONAL

Visits to Malaysia and Hong Kong From 11-12 January 2013, the Law Council President visited Malaysia to participate in the Opening of the Legal Year. During his visit, the President met with the Malaysian Bar Council and discussed a possible joint-seminar with the Malaysian Bar Council on “opportunities for Australian and Malaysian lawyers and law practices” in view of the forthcoming Malaysia’s opening up to foreign lawyers. The President also discussed the possibility of reaffirming the Law Council’s Memorandum of Understanding (MOU) with the Malaysian Bar Council. From 14-15 January 2013, the Law Council President visited Hong Kong to participate in the Opening of the Legal Year. The President spoke at the President’s Roundtable on the ‘promotion and protection of human rights and social justice.’ The President also met with the Hong Kong Law Society to discuss implementation of the MOU signed in 2012 and possible opportunities for collaboration with the Law Society of Hong Kong. During this visit, the President met with the Convenor of the ILS Hong Kong Chapter, Mr Anthony Chow, and reiterated the Law Council’s support for Chapters. The President affirmed the willingness of the ILS to assist the Hong Kong Chapter with event planning when he met with Chapter Convenor in January 2013. The Hong Kong Chapter is planning to host a luncheon for a former High Court Justice visiting Hong Kong to sit on the Hong Kong Court of Final Appeal during 2013. The President offered Law Council assistance in promoting the Chapter. Following his attendance in Hong Kong, the Director, International and the Director, Government and Corporate Affairs arranged for a significant profile article on the President to be featured in the February edition of Hong Kong Lawyer. The President was featured on the front cover with the President of the Union Internationale des Advocats (UAI).

The ILS Administrator also worked with Mr Chow to publish an article in this edition of Hong Kong Lawyer on the newly formed ‘Australian Chapter.’ Law Council delegation to the United States From 24-30 January 2013, the President and the Chair, International Law Section Dr Gordon Hughes, visited the United States to participate in a range of meetings. The primary purpose of the delegation was to attend the US Conference of Chief Justices (US CCJ) which was held in San Juan, Puerto Rico, from 26-30 January 2013. The President and Dr Hughes met with the Board of Directors of the US CCJ to discuss three key issues of mutual interest: • the regulation of lawyers, including foreign lawyers in Australia; • progress under the Australian National Legal Profession Project; and • the development of protocols for the exchange of disciplinary information. While in the United States, the President and Chair, International Law Section, also attended the following side meetings: • meeting with Mr Andrew Otis, Chair, International Law Section, New York State Bar Association, New York, 25 January 2013; • lunch with New York Chapter, ILS, New York, 25 January 2013; • meeting with Mr Steve Younger, member of American Bar Association (ABA) Task Force on Trade and Legal Services, New York, 25 January 2013; • meeting with Ms Laurel Bellows, President of the American Bar Association (ABA), at the CCJ, Puerto Rico. The President and Chair, International Law Section reported that access to foreign markets has re-emerged as a live issue in the United States. The New York State Bar Association (NYSBA) is also interested in the issue of foreign lawyers, coming from a slightly different angle. It is concerned specifically about the implications of US foreign lawyers becoming


The ABA is interested in establishing a joint task force with Australia and some other countries to consider international trade in legal services. This arises out of its concerns about Australia’s insistence on including legal services in the Trans Pacific Partnership Agreement (TPP) currently under negotiation. ABA would like this removed from the TPP discussions. The Law Council has been invited to participate in a meeting of the proposed ABA task force on foreign lawyers at the ABA Annual Meeting in San Francisco in August 2013. The Law Council has also been invited to participate in a Roundtable event at the annual offshore meeting of the NYSBA, to be held in Hanoi in October 2013, to progress debate on US concerns regarding non-lawyer partners in Australia. ABA Ethics 20/20 Committee final proposals On 11 February 2013, the ABA Board considered the four final proposals put forward by its “Ethics 20/20” committee to amend ABA rules regarding the practise of foreign law in the United States: • Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices. • Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule. • Resolution 107C amended the ABA Model Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers. • Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to

specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. An overview report describing each of these Resolutions is available online. The New York Chapter of the ILS has been asked to comment on the impact of the resolutions. Attendance at Golden Jubilee of the Bar Council of India (BCI), Delhi, 16-17 February 2013. Mr Justin Dowd, Executive Member, attended the Golden Jubilee of the BCI on behalf of the President who was unable to attend due to other commitments. Attendance at the celebrations was extremely beneficial for the Law Council’s relationship with the BCI. Mr Dowd has provided a preliminary report to the Secretariat which noted: • the event was attended by approximately 1,500 delegates plus several hundred law students. Key speakers included the Prime Minister of India, the Chief Justice, the Law Minister and the Attorney-General; • there was only one other international guest – the ViceChancellor of a University in Wales; • Mr Dowd spoke at two plenary sessions: • the first session was entitled ‘Globalisation and its impact on (the) Legal Profession’ which was co-chaired by the Hon. Mr Justice K. S. Panicker Radhakrishnan, Judge, Supreme Court of India and the Hon. Justice K Venkataraman, High Court of Madras; • the second session was an impromptu address – at the invitation of the Mr Manan Kumar Mishra, Chair of the BCI – on ‘Media and the Law;’ • as a primary objective of the visit, on 18 February 2013, Mr Dowd met with Mr Mishra at the BCI Secretariat. The meeting was very successful. Mr Mishra and Mr Dowd acknowledged the desire of the Law Council and the BCI to strengthen links between the Indian and Australian legal

professions and a number of ongoing steps to advance this have been agreed between Mr Dowd and Mr Mishra. Visiting Delegation from the Qatari Ministry of Justice On 4 March 2013, Law Council President, Mr Joe Catanzariti met with Sheikha Hind, Qatari Ministry of Justice to discuss a proposed Memorandum on Legal Cooperation between Qatar and Australia. The meeting was arranged at short notice in response to an urgent request from the Department of Foreign Affairs and Trade (DFAT). Overall, it was a positive meeting. While Qatar has not been identified as a priority country for pursuing the interests of the Australian legal profession under the current International Strategy, Qatar permits foreign law practices to open in the Qatar Financial Centre without being subjected to the usual requirements for establishing law practices in Qatar, such as citizenship. The Law Council remains hopeful that, having made contact, opportunities for future engagement with Qatar will arise. When the Law Council’s International Strategy for 2014 is prepared later in the year, research and consultation will be undertaken to see whether Qatar may be a country ‘of interest’ for Australian lawyers. Visit by China Law Society From 20-24 March 2013, a sixmember delegation from the China Law Society will visit Australia to discuss foreign investment protection. On 22 March the delegation will travel to Canberra to visit the Law Council Secretariat. During its visit, the delegation will also meet with Dr Wolfgang Babeck, Deputy-Chair, ILS, at Dibbs Barker in Sydney. Australia-China Law Week 2013 Following discussions with DFAT and the Attorney-General’s Department, the inaugural Australia-China Law Week is likely to be held during the week commencing 24 June 2013 to coincide with reporting to Ministers at the Australia-China Joint Ministerial Economic Commission (JMEC). The Director, International

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legal consultants in Australian (and other) firms which permit nonlawyer partners. The CCJ is also interested in the issue. At this stage, it believes in “taking small steps”.


Visit by the President of the Law Society of England and Wales In March 2013, the President of the Law Society of England and Wales, Ms Lucy Scott-Moncrieff, visited Australia to participate in the Law Council’s National Access to Justice and Pro Bono Conference in Melbourne. The Director, International liaised with the Law Society of England and Wales to coordinate meetings and activities for Ms Scott-Moncrieff during her visit. Ms Scott-Moncrieff was in Sydney from 18-19 March 2013. Meetings were held with the Anglo-Australian Lawyers Association, Legal Aid NSW, law firms and the Law Society of New South Wales. Ms ScottMoncrieff then flew to Melbourne to speak at two sessions at the Conference and participated in various Conference events and sessions. On Friday 23 March, Ms Scott-Moncrieff participated in a ‘Diversity Roundtable’ which was organised by the Law Institute of Victoria. Ms Fiona McLeod was also involved in these arrangements. Visit by the President of the International Bar Association (IBA) In March 2013, the President of the IBA, Mr Michael Reynolds, visited Australia to participate in the IBA 9th Competition Mid-Year Conference which was held on 21-22 March 2013, in Sydney. Mr Reynolds had earlier consulted with the Director, International on other appointments he should attend during his visit. On 26 March 2013, Mr Reynolds travelled to Canberra to visit the Law Council Secretariat. This was the first visit by an IBA President to the Law Council. During his visit, Mr Reynolds also met with the Large Law Firm Group and the Law Society of New South Wales.

NATIONAL LEGAL PROFESSION division

has consulted with Mr David Olsson, King and Wood Mallesons, Beijing, regarding this proposed event.

However it is not intended that the Commentary should be binding or comprehensive in the sense that it represents an all-inclusive analysis of the operation of the Rules. As expected, the public consultation on the Commentary has attracted many submissions from Attorneys-General, the judiciary, academics, regulators and others. The Professional Ethics Committee is systematically working through the submissions. Part of this work has required the Professional Ethics Committee to correspond with and engage in talks - for example with peak bodies from the legal assistance sector and the Legal Services Commissioners in Victoria and New South Wales. Uniform Law

The public consultation period being undertaken by the National Profession Division on the draft Commentary to the Australian Solicitors’ Conduct Rules (ASCR), continues. The draft Commentary has attracted considerable attention and final submissions are expected in the next few weeks.

It is understood the governments of New South Wales and Victoria continue to work towards the introduction in 2013 of uniform legislation that will regulate the legal profession in those jurisdictions, based on the proposed National Law.

The Division is also maintaining a watching brief over developments in relation to the introduction into the Victorian Parliament of proposed uniform legislation based on the Legal Profession National Law initiative (LPNL).

The Capped Contingency Fees Working Group has settled an extensive background paper that assesses the position on contingency fees in various jurisdictions- including Australia, Canada, the United States and the United Kingdom (which is set to introduce its version of contingency fee agreements known as damages based costs agreements in April 2013).

The Capped Contingency Fees Working Group has completed initial research directed at developing a policy position for recommendation to Directors on contingency fees and how such costs agreements might operate in Australia.

Contingency Fees

The Law Council’s Professional Ethics Committee completed its work on the draft Commentary in July 2012.

The traditional embargoes against such costs agreements have given way to modern public policy views, the need to introduce competition with litigation funders and improve access to justice – particularly for those too wealthy to be eligible for legal aid and too poor to afford legal representation.

Following a period of consultation within the Law Council, the draft Commentary to the ASCR was released in October 2012 for public consultation. The intention of the Professional Ethics Committee in developing the draft Commentary is that it should explain the underlying principles that underpin the Rules.

It was anticipated that the Working Group could complete its work in addressing the Terms of Reference (developed by the Executive) by the end of February. However it is now expected that in order to do justice to the complexities of the topic, the Working Group will require a short extension of its proposed submission date.

Draft Commentary


The Business Law Section (BLS) Executive held its February meeting in Sydney on Sunday 10 February. Ms Teresa Dyson joined the Executive for her first meeting. The BLS Executive was delighted that the President-elect and Law Council Executive member, Mr Michael Colbran QC, was able to attend part of the meeting. A BLS submissions protocol to assist its specialist Committees in writing submissions to Government and other agencies was one of the major topics discussed at the meeting. On Sunday evening, the BLS Executive hosted a dinner to celebrate Ms Carol O’Sullivan’s twenty fifth anniversary as Administrator and Senior Administrator of the Section. Twelve of the fifteen former Section Chairs attended the dinner which was also attended by the Law Council President, Mr Joseph Catanzariti, Mr Michael Colbran QC, the Acting Secretary-General, Mr Martyn Hagan, and the Deputy Secretary-General, Ms Margery Nicoll. The following day, the BLS Executive conducted its annual workshop for Section office bearers, that is, members of the BLS Executive, Committee Chairs and Deputy Chairs.

Delegates also heard from two guest speakers. Mr John Denton, CEO of Corrs Chambers Westgarth and, inter alia, Co-Chair Commonwealth Business Council; Prime Ministerial representative on the APEC Business Advisory Council (ABAC); Chair ABAC Finance and Economics Working Group; board member Business Council of Australia; Chair of BCA Global Engagement Taskforce; Chairman (Emeritus) Experts Group on Trade and Investment in Indonesia; and founding member of the Australia China CEO Roundtable meetings; addressed Workshop delegates on “Asian century challenges for Australian business. A copy of Mr Denton’s speech is available on the Law Council website. Mr Mark Bielecki, South Australian Regional Commissioner and Senior Executive Leader, Chief Legal Office, gave an address on ASIC’s approach to compulsory information gathering enhancement and privilege. Honorary Life Memberships were awarded during the Workshop to two former Chairmen of the Section – Mr Alan Cameron AO and Mr Andrew Ray for their outstanding service to the Section.

The BLS has a busy schedule during 2013. In addition to its established annual workshop program, the BLS will be assisting the Federal Court in organising its 3rd International Commercial Law and Arbitration Conference in Sydney on 22–23 August, as well as co-sponsoring a conference with the International Bar Association and the Australian Centre for International Commercial Arbitration in Sydney on 5 December on “Key issues in international arbitration for the Asia Pacific Region”.

VALE MR CHRIS BRANSON QC The Business Law Section is mourning the loss of one of its highly esteemed members following the passing of Mr Chris Branson QC on Friday 15 March 2013. Mr Branson has left an indelible mark on the legal profession, particularly through his work with the Law Council of Australia. He showed tremendous enthusiasm and energy for the work of the Tax Committee over many years. He was a strident advocate for taxpayers whilst also being a builder of bridges who formed close relationships with senior people at the Tax Office and at Treasury. Mr Branson is remembered as a tough man, not only in his long and distinguished career at the bar but famously in surf boating—a sport in which he excelled. The Executive, Directors, Section Members and Staff of the Law Council of Australia extend their deepest sympathy to the family and friends of Mr Chris Branson QC.

Business Law Section Executive Members.

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SECTION OVERVIEWS BUSINESS LAW SECTION

Issues discussed at the meeting included the use of the Section’s funds, the Committee membership criteria and process, protocols covering attendance at BLS Workshops, the submissions guidance note and scholarships. The BLS Executive was pleased to welcome the Law Council President and the Law Council Acting Secretary-General, both of whom addressed the delegates on their vision for the Law Council and the role the Sections had to play in its future.


FAMILY LAW SECTION This article is an edited version of the submission made on 17 December 2012 to the Senate Legal and Constitutional Affairs Legislation Committee. It focuses primarily on the issues affecting the family law jurisdiction. The full submission is available at www.lawcouncil.asn.au In late 2012, the Family Law Section and Federal Litigation Section of the Law Council of Australia made a joint submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Courts and Tribunals Legislation Amendment (Administration) Bill 2012 (the Administration Bill) . Family Law Section Chair, Mr Rick O’Brien, and Federal Litigation Section Executive Member, Mr David Gaszner, appeared before the Senate Inquiry in late January 2013. The Administration Bill is part of the package of legislative amendments to give effect to the Government’s ongoing court reform agenda to provide greater certainty around the responsibilities and role of each of the federal courts. Also part of that agenda is the Federal Circuit Court of Australia Legislation Amendment Act 2012, which amends the Federal Magistrates Court Act 1999 (and other legislation) to rename the Federal Magistrates Court as the Federal Circuit Court of Australia. The submission to the Senate Inquiry made the following brief observations about the Administration Bill: • it will merge the administrative functions of the Family Court of Australia and the Federal Magistrates Court of Australia (soon to be the Federal Circuit Court of Australia); • the two courts will be established as a single agency for the purposes of the Financial Management and Accountability Act 1997 (Cth) and Regulations;

• there will be a single Chief Executive Officer for both Courts. There will, however, still be separate heads of jurisdiction for each Court, with a Chief Justice of the Family Court and a Chief Judge of the Federal Circuit Court. The Chief Executive Officer will report to each head of jurisdiction and each head will be able to direct the Chief Executive Officer; • it will formalise administrative arrangements that have been in place since about 2009, with the Chief Executive Officer of the Family Court having also acted as the Chief Executive Officer of the Federal Magistrates Court since that time and with the two Courts sharing many administrative resources; • if passed in its present form, there will thereafter be two primary federal court agencies for the purposes of administration and financial reporting, the combined Family Court/Federal Circuit Court and the Federal Court of Australia; and • the jurisdiction of the Federal Magistrates Court will not change when it becomes the Federal Circuit Court of Australia or as a consequence of the Administration Bill. The Family Law Section and Federal Litigation Sections are concerned that resourcing will be an issue for the Federal Magistrates Court in both the general and family law jurisdictions. Both jurisdictions already experience problems in relation to limited judicial and physical resources. The Family Law Section is also aware of unacceptable delays of varying lengths around the country and a range of problems associated with circuit sittings including where the physical environment of the circuit court is not conducive to dealing safely with family law matters and where conciliation conferences have been cancelled due to the lack of rooms. At the National Family Law Conference in Hobart in October 2012, the Chief Justice of the Family Court of Australia, the Hon. Justice Diana Bryant AO, said that the Federal Magistrates Court had never been adequately resourced since its inception.

It is the Family Law Section’s view that the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia all remain significantly under resourced, and no administrative changes or savings will adequately address that issue. The Family Law Section has consistently argued against the policy decision by the Government to maintain two separate courts exercising family law jurisdiction. As late as 13 April 2012, the Law Council wrote to the AttorneyGeneral to emphasise its support for a ‘single court dealing with family law matters’. The Family Law Section continues to be concerned about the problems that will arise. It is the Family Law Section’s view that the Administration Bill appears simply to be designed to give a legislative basis to the joinder of administrative functions informally put in place by the two Courts, without thought being given to the long term sustainability of those structures. Those arrangements are entirely dependent on the co-operative personal and professional relationships of the current incumbents - the Chief Justice, the Chief Federal Magistrate and Chief Executive Officer; as a blueprint for a long term structure, where agendas and incumbents will change over time, they are fundamentally flawed. The Family Law Section’s view is that further thought needs to be given to an appropriate, inherently sustainable structure for the long term. The difficulties inherent in the decision to maintain separate courts while simultaneously trying to achieve cost savings by merging administrative functions are not open to a simple solution, and again serve to illustrate the point that the Family Law Section has consistently made - that the policy decision to maintain two separate courts is fundamentally flawed.


The Joint Federal Court of Australia and Law Council of Australia Case Management Workshop was held in Melbourne on 22 March. The full day workshop was the third in a series of case management workshops. Starting in 2008, the workshops have been a successful exercise for the Law Council, legal profession and Federal Court. The workshops have provided the impetus for important reforms to Federal Court processes and the first workshop was the genesis of the Federal Court Case Management Handbook, which was ‘launched’ at the second workshop, held in 2011. The Case Management Handbook can be viewed on the Law Council’s website or accessed via the Court’s website. One notable aspect of the most recent workshop was the high level of involvement of Chief Justice James Allsop who has only recently taken up his appointment. Chief Justice Allsop moderated the first session of the workshop, which was run jointly by Justice Michelle Gordon with input from Peter Jopling QC, Charles Scerri QC, Ruth Higgins, Martin Hyde, Glenn Owbridge and Andrew Morrison. This session first focused on case and trial management issues and lessons to be learned from the Centro case that was heard by Justice Gordon. The second half of the session delved into the running of electronic trials for large and small cases, including demonstration of different electronic trial options. The second session was moderated by Justice Bernard Murphy. It focused on a working draft chapter on representative actions which has been prepared for the Case Management Handbook. One of the draft chapter authors and Deputy Chair of the Federal Litigation Section, John Emmerig, went through the detail of the document and explained its conception and why there was a focus on certain issues.

The third and final session opened with a short presentation by former Chairman of the Federal Litigation Section, Simon Daley, which focused on the philosophy of the Case Management Handbook, to recap on the existing chapters and explain the conception for future chapters and progress with drafting of those chapters. This outline also laid the groundwork for the following ‘Hot Topics’ discussion, presented by Richard Hamer, with input from the Executive General Manager Enforcement and Compliance at the Australian Competition and Consumer Commission, Marcus Bezzi. The ‘Hot Topics’ component focused on the balance between the highly desirable benefits of a flexible docket system versus not allowing this flexibility to get to the point where practitioners do not know what to expect because of variations to court practices. All sessions were highly interactive and the feedback from the Court and practitioners is that the workshops have become an extremely valuable and innovative medium for constructive interaction between the Federal Court and the practising profession. Further information is available through contacting the Federal Litigation Section. The Federal Litigation Section of the Law Council of Australia would like to acknowledge the efforts of the organising committee in delivering the workshop: Simon Daley, David Gaszner, John Emmerig, Linda Evans, Damian Graves and Ben Slade.

INTERNATIONAL SECTION 33rd International Trade Law Symposium May 6–7 in Canberra The International Law Section is once again hosting a Continuing Professional Development (CPD) event with high-calibre expert presentations on international trade law. The event is a rare opportunity to hear from Australian Government lawyers and private practitioners about the latest developments in areas including free trade negotiations, anticorruption activities, WTO jurisprudence, international arbitration, intellectual property and genetic resources, the UNCITRAL Model Law on Electronic Commerce and the UN Convention on International Sale of Goods, and bilateral investment treaties. On-line registrations can be made via the Law Council’s website, or contact ils@lawcouncil.asn.au for more information. Registrations are open to all, and young lawyers and students are encouraged to attend. ILS invited to join American Bar Association delegation to the United Nations The American Bar Association’s International Law Section has invited the Law Council’s International Law Section (ILS) to join its annual delegation to the United Nations (UN) on 29 April 2013. The Deputy Chair of the New York Chapter, Dr Anne Bodley, or her nominee, will represent the Law Council on the delegation to meet with UN officials and the United States’ mission to the UN. The Law Council was granted Special Consultative Status to the UN in 2012. Migration Law Committee AGM and election of Chair The ILS Migration Law Committee (formed in 2012 from the merger of the former Immigration Lawyers Association of Australasia and Migration Law Working Group) held its AGM on 7 March 2013.

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FEDERAL LITIGATION SECTION

The second half of this session involved a more interactive component and was run by Cochairs of the Law Council’s Class Actions Committee, Ben Slade and John Emmerig, as well as Committee member, Damian Graves. The discussion focused on six topics that were identified and canvassed in the outline of the chapter on representative actions.


Two candidates stood for election as Chair in the e-ballot held 22 February–4 March 2013: Ms Maria Jockel, and Mr Erskine Rodan OAM. The outcome of the election was advised at the 2013 Annual General Meeting held on 7 March 2013 and Mr Erskine Rodan OAM was elected Chair, Ms Katie Malyon was elected Vice-Chair and Mr Michael Kah was elected as the new Committee Secretary. In January 2013 the ILS agreed that the ILS Migration Law Committee would represent the Law Council as an observer at Australian Human Rights Council meetings discussing the current Australian policy of offshore processing in Nauru and Papua New Guinea. Dr Angus Francis, a current Migration Law Committee member and volunteer solicitor with the Refugee and Immigration Legal Service, will be the Law Council’s representative. The 2013 CPD Immigration Law Conference has been postponed to 25–26 October 2013. If you would like more information contact the ILS administrator, ils@lawcouncil.asn.au. Leadership visit to the US and New York Chapter events From 24–30 January 2013, the President Joe Catanzariti and ILS Chair, Dr Gordon Hughes, visited the United States to participate in a range of meetings. They attended the US Conference of Chief Justices (US CCJ) in San Juan, Puerto Rico, from 26-30 January 2013 and met with the Board of Directors to discuss key issues of mutual interest including the regulation of lawyers, including foreign lawyers in Australia; progress under the Australian National Legal Profession Project; and the development of protocols for the exchange of disciplinary information. During the trip they also met with Mr Andrew Otis, Chair of the New York State Bar Association’s ILS; Mr Steve Younger, member of American Bar Association (ABA) Task Force on Trade and Legal Services; and Ms Laurel Bellows, President of the American Bar Association (ABA). Access to foreign markets and international trade in legal services are live issues in the US.

On 25 January 2013, the Law Council President and ILS Chair attended a lunch meeting with the New York Chapter of the ILS. The President outlined his priorities while President, including access to justice, human rights advocacy, international engagement, and the Law Council’s National Attrition and Re-engagement Study. The ILS Chair provided an update on the development of ILS international chapters world-wide and praised the New York Chapter for providing a model for chapter development during its first year of operation. Observations were shared about trends in the practice of law in Australia, legal education in Australia and the United States, and the international mobility of the profession. New York Chapter members expressed their desire to forge closer ties with other international chapters, and to become engaged in the policyrelated work of other Law Council Sections such as the Business Law Section. Renowned Australian human rights lawyer and scholar, Dr Anne Gallagher AO, addressed members of the New York Chapter and guests at an evening reception at the offices of the international law firm Skadden, Arps, Slate, Meagher & Flom LLP in New York City on 7 February 2013. For detailed coverage of Dr Gallagher’s presentation please refer to the feature article on Law Council Review. Hong Kong Chapter events On 4 February 2013 the Hong Kong Law Society Circular carried an article inviting new members to join to ILS’s Hong Kong Chapter. The Chapter is ably led by Mr Anthony Chow. On 14–15 January 2013, the Law Council President visited Hong Kong to participate in the Opening of the Legal Year and met with Mr Chow during the visit. The President reiterated the Law Council’s support for Chapters and offered Law Council assistance with marketing and event planning.

International trade law conversations Professor Vivienne Bath, ILS member and expert in international trade law, University of Sydney, represented the Law Council on a Comparative Law Conversation panel discussion hosted by the federal Attorney-General’s Department on 6 February 2013. Other panellists were the Head of the UN Commission on International Trade Law Regional Centre for Asia and the Pacific (UNCITRAL RCAP), Dr Luca Castellani, Dr Lisa Spagnolo from Monash University, and Mr Tim Castles, Barrister NSW and currently a consultant to UNCITRAL. Some of the issues that panel members raised for discussion included: • The need for trade law in East Asia and the South Pacific, including Australia, to be updated and harmonised so that supply chains in and out of the region could be strengthened and transaction costs reduced, including in relation to carriage of goods by sea and electronic transactions. The expertise and experience of Australian lawyers could contribute to the development of a more businessfriendly legal environment. • Legislative guidance for courts in relation to the implementation of international conventions in domestic law • Consideration of the need for a specialist court for international trade matters, and more international trade-law focused CPD and courses for law students, graduates, arbitrators and judges so that international law is properly applied. The panellists also participated in a roundtable discussion chaired by the Assistant Secretary of the Justice Policy and Administrative Law Branch Dr Karl Alderson, and met with the Secretary of the Attorney-General’s Department, Mr Roger Wilkins AO, to discuss Australia’s engagement with UNCITRAL RCAP’s work agenda and related issues. The ILS Administrator, Hanna Jaireth, also attended the panel discussion.


In December 2012 five ILS Committees were formed, and members are invited to express interest in contributing to submissions or events. • Trade and Business (chaired by Mr Andrew Percival) • Alternative Dispute Resolution (chaired by Ms Mary Walker) • Migration Law (chaired by Ms Maria Jockel with AGM on 7 March 2013) • Human Rights Committee (chaired by Dr Gordon Hughes) • Comparative Law (encompassing the interests of the former Focus Groups for Europe, China and South Korea) (co-chaired by Dr Wolfgang Babeck and Mr Thomas John). Please contact the ILS administrator ils@lawcouncil.asn.au if you may be interested in joining one or more of these Committees.

CONFERENCE INFORMATION 33rd International Trade Law Symposium 6–7 Mary 2013 University House, ANU, Canberra Contact ils@lawcouncil.asn.au for more information. 2013 CPD Immigration Law Conference 25–26 October 2013 Canberra Contact nicole.eveston@ lawcouncil.asn.au for more information.

LEGAL PRACTICE SECTION The Australian Property Law Group The Australian Property Law Group continues to be actively involved with the Property Law Reform Alliance (PLRA) in relation to Uniform System of Torrens Title: The draft model Act, prepared by Professor Peter Butt of the University of Sydney, which was open for comment until 28 February 2013. Personal Injuries and Litigation Group The Personal Injuries & Litigation Group has worked, along with a number of the constituent bodies to develop the Law Council’s blueprint in relation to the National Disability Insurance Scheme. A representative from the group addressed the Senate Enquiry on behalf of the Law Council on 5 March 2013. Superannuation Group The Superannuation Group’s 26th conference is to be held in Sydney on 28 February 2013 – 1 March 2013 and will be opened by the Honourable T. F. Bathurst QC, Chief Justice of the Supreme Court of New South Wales. The Committee engages in extensive consultation with the Treasury and the Australian Tax Office and in 2012 it made 30 submissions. Presently a 2013 submission to the Inquiry into Tax and Superannuation Laws Amendment (2013 Measures No 1) Bill 2013, has been published on the website of the Joint Committee on Corporations and Financial Services of the Australian Government. Australian Law Management Group (ALMG) The ALMG publishes the Australasian Law Management Journal in electronic form six times a year and has a distribution of 4174. A LAWASIA version of the ALMJ is distributed to 670 subscribers. Work is continuing on the Law Management Web Portal to assist lawyers around Australia. The LPS funds one of its members to sit on the LAWASIA Law Management Section.

That Section continues to operate webinars, and assist in the Law Management Section of the LAWASIA Conference. Australian Environment and Planning Law Group The Mahla Pearlman Oration was held on 14 March 2013 under the partnership of the Australian Environment and Planning Law Group of the LPS, and the Environment and Planning Law Association (New South Wales) and Justices Sheahan and Pepper of the Land and Environment Court of New South Wales (NSW). The Oration this year will be given by Mr Paul Stein QC AM, a former Judge of the NSW Court of Appeal and Land and Environment Court of NSW. The Young Environmental Lawyer of the Year Award has been renamed “The Mahla Pearlman AO Young Environmental Lawyer of the Year Award” in honour of the late Mahla Pearlman AO, former Chief Judge of the Land and Environment Court of NSW, Past President of the Law Council of Australia and the Law Society of NSW. The Award was presented at the Mahla Pearlman Oration on 14 March 2013. The Australian Environment and Planning Law Group partnered with the National Environmental Law Association (NELA) for the NELA Conference which was held in Melbourne on 7–8 March 2013. National Insurance Lawyers Group This group continues to work on amendments to the Insurance Contracts Act; and community resilience and distribution of the costs of natural disasters. Consumer Law Group Areas which the Consumer Law Group are working on in 2013 include: • “pay day” and fringe consumer credit; • The effective operation of External Dispute Resolution schemes; • Credit reporting; • Debt collection; • Class action regimes; • Flood and other natural disaster insurance issues; and • Telecommunications issues.

63 JAN–MAR 2013

New ILS committee structure


2013

CALENDAR OF EVENTS

Apr 2013

Oct 2013

18th Commonwealth Law Conference 14 – 18 April, South Africa More Information

2013 Immigration Law Conference 25–26 October 2013

Human Rights and Policing Conference 16 April, Canberra More Information

26th LAWASIA Conference 27–30 October, Singapore More information

Supercharging your practice: Law Practice Management Master Class Comes To Canberra 22 April, Canberra More Information

May 2013 2013 Family Law Intensive Series 4 May, Melbourne More Information

Nov 2013 2013 Family Law Intensive Series 2 November, Adelaide More information

Oct 2014 16th National Family Law Conference 7–10 October, Sydney

2013 Family Law Intensive Series 17 August, Perth More information

LIST YOUR EVENT HERE Do you have an event to add? Contact the editor to add your event: review@lawcouncil.asn.au

The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.

Aug 2013

review@lawcouncil.asn.au | www.lawcouncil.asn.au

33rd International Trade Law Symposium 6–7 May, Canberra Register Online


Law Council Review - Issue 5  

The Law Council of Australia is the peak national representative body of the Australian legal profession, and represents about 60,000 legal...

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