The Brief Edition 2 2014

Macquarie University Law Society magazine

The Brief | Volume 20, Edition 2

1

GOLD SPONSORS

PLATINUM SPONSOR

with thanks to

Write for us

and be a published law student!write the

brief AD

Submissions are now being accepted for Editions 3 2014. For more information, contact Emma Grimley at thebrief@muls.org.

2

The Brief | Volume 20, Edition 2

6

8 Dear Reader,

Anything But Ordinary: The New Non-traditional Practice

Exchanging Protection for Bigotry: Amending the Racial Discrimination Act

10

16

Sex[t] Offender List

Whaling in the Antarctic: What Was Really Decided and What This Means in Reality

CONTENTS 18 20

It amazes me that we find ourselves nearly halfway through the year, and at the second edition of The Brief to be seen in 2014. I am sure many of you would agree with me that time has not so much flied as raced away as the academic semester comes to a close.

Many of the contributions you see in this edition are by students who have, despite the challenges of the educational routine, taken time to write about legal issues that are significant to them. You may find, as I have, that they impact similarly on you. Eleanor Sanderson and Patrick Barkachi discuss New Model law firms and the future of billing respectively.

We also see engaging examination of the whaling decision by the ICJ, the recent successful gender appeal in the High Court and changes to the Racial Discrimination Act. I would also like to thank Dr Mehreen Faruqi, Greens Member of the NSW Legislative Council for taking the time to chat with Denise Hamad about her political career, being a part of The Greens and the work of public advocacy and representation. Equally I am proud of all the contributors and the efforts they have made towards another edition of an amazing publication.

Read and enjoy.

Two Anniversaries and a Funeral

The Future of Billing

22

26

Sex and Gender Diversity: A Fight for Those Who Fall in Between

Silk Wars: The Monarch Strikes Back - The Changing Landscape of a Senior Australian Barrister’s Post-nominal

Emma Grimley | Editor

more...

16 Interview with special Mehreen Faruqi 24 Interning in the ‘Kingdom of Wonder’ 4 New in the Law 12 Social Justice Corner 29 Stuff Law Students Like 30 Crossword The Brief | Volume 20, Edition 2

3

A VICTORY FOR FREEDOM OF SPEECH OR A GREEN LIGHT FOR BIGOTRY IN AUSTRALIA?

Volume 20 Edition 2, June 2014

© Macquarie University Law Society 2014

EDITOR Emma Grimley DEPUTY EDITOR Patrick Barkachi DESIGNER Nathan Li SUB-EDITORS Valiant Warzecha, Naveen Rehmani, Patrick Barkachi, Eleanor Sanderson, Connor Hogg CONTRIBUTORS Eleanor Sanderson, Dean Zinn, Karina Marlow, Nandini Bajaj, Dr Mehreen Faruqi, Denise Hamad, Elyse O’Sullivan, Luke Richards, Patrick Barkachi, Nava Mostajabi, Yumna Arif, Max Turner, Connor Hogg EDITORIAL REVIEW Angela Voerman Manager, Student Engagement Laura Webster Director (Publications), Macquarie University Law Society IMAGE CREDITS All images courtesy of Shutterstock.com unless specified otherwise.

THE BRIEF ONLINE The Brief can be read online at www.muls.org or on ‘The Brief’ Facebook page.

DISCLAIMER All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

PRESIDENT’S WELCOME Members of MULS, I am proud to present to you the second edition of The Brief for 2014.

Notwithstanding the privilege I was afforded in contributing to this edition, I can assure you that you are in for another unquestionably high-quality MULS publication.

Semester 1 has been challenging and exhausting, yet undeniably rewarding. As you approach the ever-demanding exam period and you prepare to annihilate your final assignments, I encourage you to reflect on the Semester that was and be proud of your achievements. I particularly hope that you were able to engage with everything that MULS has had to offer – whether you danced yourself ‘around the world’ at Law Cruise, scored a try or goal at Sports Gala Day, picked up some valuable vocational tips at Clerkship Week, participated in your first or fiftieth moot or even grabbed a biscuit or two at a Just for Justice session, everything that MULS has to offer is designed to help you develop as a fine, young law student and as a person.

So be sure to enjoy the upcoming holidays and take a well-deserved break from the craziness of #lawstudentlyf.

Now is the time to travel, pick up that novel you had been meaning to read, or simply sleep for 14 hours a day.

Whatever it may be you have earned it.

Digest and enjoy every word of this edition and I look forward to seeing you all again in Semester 2.

All the best, Max Turner | President president@muls.org

4

The Brief | Volume 20, Edition 2

Proposed changes to the Racial Discrimination Act, concerning s 18 C ride a fine line between freedom of opinion and allowing bigotry. Current government's view of s 18 C is that it’s unreasonably restrictive on freedom of speech and public discussion and that racial discrimination isn’t effectively addressed under the Act. Senator Brandis’ justification is that it’s not the governments place to legislate on ‘hurt feelings’ but to strengthen protection against racial intimidation and vilification, whilst decreasing the political censorship effect of the act.

©A n

dy

Dolp

h in

UPDATE ON THE HOME INSULATION INQUIRY On May 15 former Prime Minister Kevin Rudd was recorded as having accepted ‘ultimate responsibility’ for the failed home insulation scheme which resulted in the deaths of four installers in 2009. Mr Rudd still claims that he was not warned about the safety risks of the program, and that the rushed implementation was encouraged in the advice of bureaucrats.

PROGRESSIVE REFORM FROM HIGH COURT High court has determined in a landmark case, that sex being represented on birth, deaths and registrations can now be gender neutral, opening the door for greater recognition of intersex rights.

GREATER LIBERTY WITH CIVIL PRIVACY NO MORE BINGLES FOR BINGLE? In May model Lara Bingle was handed a six-month suspended jail sentence for driving twice without a license. She was also fined $2000 and banned for driving for two years. Through her lawyer she has proclaimed to have since the offences spent time in community programs to promote safe driving.

Privacy laws in Australia have undergone great reform in 2014, with 13 harmonized principles regulating the handling of personal information, and enhanced powers of the OAIC to asses privacy compliance of Government and seek civil penalties in the case of serious breach.

DANIEL KELSALL FACES MORE CHARGES

A COUPLE AND COCAINE Noted ex-swimmer Geoff Huegill and his wife Sarah Hill have pleaded guilty to cocaine possession and been awarded six month good behaviour bonds in Waverley Local Court. They were caught with the drug in their suite at Randwick Racecourse in April.

The man accused of killing Morgan Huxley last September faces a further charge of indecent assault to be imminently answered in court.

Prior to having Victim: Morgan Huxley stabbed Mr Huxley 28 times it is alleged Kelsall also touched his genitals. The matter is back in court in June.

LAW AND ORDER AUCTION NSW government, and new Premier Mike Baird have axed the department of Attorney-General in a move being criticized as a ‘concern for administrative convenience and budget savings over the rule of law.’ NSW opposition further criticized the new arrangement, warning of a ‘law and order auction’ in NSW politics.

The Brief | Volume 20, Edition 2

5

ANYTHING BUT ORDINARY: THE NEW NON-TRADITIONAL PRACTICE Old model and new model firms, new firms and old firms. Eleanor Sanderson lays down what it’s all about.

F

rom first year, law students have gotten used to hearing about the tier categorisation of law firms. You question whether you’ll have the chops to make a prestigious top-tier or ponder whether you’d be better off in a mid-tier. A lot of highly technical terminology about fish and pond sizes is thrown around. But what if there’s more to consider than just which tier you make? These days, with the rise of New Model law firms, there is.

It is no longer simply about tier categorisations, there are also significant considerations about firm structure. This article examines some of the alternative firm

6

The Brief | Volume 20, Edition 2

models emerging in the industry. It will look at what these New Model firms do differently to Old Model firms, and why they have chosen to do so. An Old Model firm is not necessarily about an old firm, nor is a New Model firm necessarily a new one. There are many old firms changing to New Models and new firms sticking to the Old Model. This article is about how firms choose to operate, but ultimately, it’s more. It’s also about changing trends in the industry and the challenge firms face to differentiate themselves from each other in an increasingly competitive environment facing both economic and client pressures.

THE OLD MODEL The traditional law firm model encourages an internal tournament that would make Russell Crowe in his Gladiator days proud. Hierarchy is important and lawyers compete to achieve equity partner status. Equity partners can influence the firm’s operation, receive high salaries. There is a restriction on the number of people who may hold such status. Associates, who form the bulk of the firm, are relied upon to support the equity partners. Clients are billed by the hour and lawyers must meet minimum thresholds for billable hours logged.

Ability to meet or exceed these targets is indicative of a lawyer’s contribution. A study of American lawyers found 80% of

hired lawyers in the equivalent of top tier firms leave within five years, most due to pressure. In recent years the dominance of this model has been compromised. In light of the global financial crisis, companies are increasingly selective about their use of legal services and challenge firms’ prescription about the volume and cost of necessary work. Formerly loyal clients became fickle, searching for the best deal.

It is also the result of long term changes in the industry. The number of firms has simply grown, increasing competition.

Firms need to work harder and harder to differentiate themselves from the pack.

THE NEW MODEL Other than seeking out top legal talent, Old Model and New Model firms have little in common. There are two types of New Model firms. There are firms which employ a lean structure and firms which employ different and individualised fee options.

Lean Firms Structurally, lean firms challenge the idea that work should be done with a mindset of maximising billable hours. Instead, they operate on the principle that the costs incurred by inefficiency cut into the profit margin of a firm. There are different ways to make a firm lean, be it as simple as giving work to the least expensive person with the requisite skills (instead of giving work to partners with an excess of skill simply to fill their workload or because the work is high status). Alternatively, a firm may be made lean by eliminating overhead costs like the cost of maintaining an office space. An example of this is Axiom which operates in the UK, the USA, Germany, Hong Kong, Singapore and India. Started in 1999 by Alex Guettel and Mark Harris, both alumni of the traditional law firm model, Axiom operates online, without an office. Harris said of his time at a top New York firm that his billable hours would earn him his annual salary in a month.

The rest of the year was spent covering the firm’s overheads, including partner salaries and office space. By eliminating the office, Axiom cuts 30% of the traditional firm’s overhead costs. As Guettel puts it, “Lawyers can access the resources they need from anywhere they can operate a laptop … So why pay for a mahoganypanelled office in [New York’s] midtown?”

Axiom matches work up with lawyers whose skills suit the work. It gives their lawyers the freedom to control the structure of their working week and assist employees such as mothers, who might otherwise struggle to stay in the pressured law industry. Axiom doesn’t

It’s also about changing trends in the industry and the challenge firms face to differentiate themselves from each other in an increasingly competitive environment facing both economic and client pressures.” hire researchers or secretaries – another means of keeping the firm lean. They’ve found that, given the ability to access the information themselves, their lawyers don’t find a use for the researchers or secretaries. This is a harsh blow for desperate law students looking for any ‘in’ to the industry but good news for lawyers and clients. The savings can be passed onto the client and more of what the lawyers directly earn for the firm can be returned to them as salary. Axiom boasts clients such as Reuters, Cisco Systems, Google, Yahoo, eBay, Goldman Sachs, and Genentech and in 2010 brought in a profit of $31 million.

Axiom hasn’t set up shop in Australia yet but we can see a similar model in Hive Legal, a Melbourne firm established this year by Mitzi Gilligan and Simon Davidson, both former partners at top tier firms.

The firm does have an office space but operates largely remotely. Where work is better suited to another firm or consultancy, Hive willingly will refer a client to a better suited advisor. Gilligan emphasises the model’s quality of life benefits to lawyers and the value benefits to clients.

Alternative Billing Models The second type of New Model firm offers alternative billing options and is not reliant on billable hours. The New Model sees law firms evolving to more closely resemble other professional services. Nowhere is this more evident than in their billing. Other professional services provide value-based billing as opposed to time-based billing.

Gilligan says she would use billable hours if a client insisted but she feels that it rewards inefficiency. “We want to move towards value pricing, which will reward efficiency and outcomes rather than how long it takes to do something.”

Marque Lawyers has become a hot topic firm among students in light of their far from traditional recruitment methods. Their fee schedule is a neat summary of some of the most popular alternative billing

options emerging in the industry. Retainer Fees, a periodic and ongoing set payment, are ideal for long term clients. They are designed to account for the average value of the work conducted over time. Retainer Fees can be adapted as the needs of the client change. Fixed Fees suit oneoff provision of services and involve an upfront estimation of the value and effort involved in that work.

With regards to litigation billing, a Retainer model may be designed for extended proceedings. Fixed Fee litigation costs are appropriate when it is certain the case will proceed all the way to trial and the client wants total certainty of cost. Alternatively there is Event Costed fees where a fee is charged for each stage of the process as it progresses.

If New Model firms differentiate themselves by offering value-based, as opposed to time-based fees, the next challenge, of course, is how to break free of the mindset of valuing work by the time needed to do it. Bowen Buchbinder Vilensky Lawyers (BBV), a Perth firm employing a Fixed Fee model, refers to metrics used by the Federal Court cost scale. In determining value, the scale looks at complexity, novelty, urgency, value of any property involved and time. Time is just one factor. Morgan Solomon, one of the firm’s directors, says, “If the Federal Court is willing to recognise that value is subjective, it’s amazing that we don’t as lawyers, we still adhere to this rigid idea that there’s one price for everyone and that’s it.”

Whatever means New Model firms use as alternatives to billable hours, there is a distinct emphasis on the individual needs of the client, the skills of the lawyer and encouraging efficiency. It has even been argued by some that Old Model is demeaning to lawyers because it values them on the basis of their spreadsheet entries, not their output. All the emphasis on incrementally mapping your work day (continued on page 31) The Brief | Volume 20, Edition 2

7

8

The Brief | Volume 20, Edition 2

Image by Oliver Elipse @ flickr

...it comes down to what kind of society we want to live in. Do we want to live in one predicated upon inclusion, where the weak can seek legal protection from hate speech that compromises their wellbeing?

EXCHANGING PROTECTION FOR BIGOTRY:

AMENDING THE RACIAL DISCRIMINATION ACT What are the implications of the proposed changes to the Racial Discrimination Act? Dean Zinn discusses.

O

n the 25th of March, Federal Attorney General George Brandis announced the Abbott government’s intention to revise the Racial Discrimination Act 1975 (Cth) by repealing s 18C of the Act. The draft legislation repeals s 18C of the Act which makes it unlawful to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin. In substitution, another clause will be inserted making it unlawful to vilify people on those same grounds. In support of the amendment, Senator Brandis said that ‘people have a right to be bigots’. The proposed legislation and these comments have understandably ignited widespread debate in the community. This article will explore the ramifications that the amendments will have, arguing that they will compromise the cohesion of multicultural Australia.

Advocates for the amendment of the Racial Discrimination Act are critical of the suppression of free speech in the legislation’s current form . Libertarians and freedom-of-speech activists commonly refer to the United States, where free speech is constitutionally protected by the First Amendment. Their argument focuses on the fact that legislation should never impede or limit one’s freedom of speech.

In a liberal and democratic society, the right to hold and express opinions is one of the most fundamental rights that a person can have, and for the state to restrict this

right would be very dangerous. However, the arguments of those that support free speech are overly simplistic, in that they largely ignore the fact that freedom of speech is not an absolute right, that trumps all others.

The late Justice Lionel Murphy said: ‘Freedom of speech is what is left over after due weight has been accorded to the laws relating to defamation, blasphemy, copyright, sedition, obscenity, use of insulting words, official secrecy, contempt of court and parliament, incitement and censorship.’ Murphy J’s statement emphasises the manner in which the law imposes restrictions on what we are permitted to say. By adapting the legislation to promote free speech, Australian citizens have a significant responsibility to uphold values of respect and tolerance. However, the reality is we do not live in a utopian society predicated upon compassion and kindness. Therefore, by repealing legislation making it unlawful to offend, insult, humiliate or intimidate another person based on their race, colour or ethnic origin, the government has failed to protect citizens from hate speech.

Hate speech denigrates and harms individuals. When wilful prejudice and vilified speech are allowed free reign, victims are left feeling dehumanised and void of their dignity. Consider Sydney Swans star and current Australian of the Year Adam Goodes, who was labelled an ‘ape’ by a thirteen year old spectator

during a game last season, or Timana Tahu’s decision to quit the New South Wales State of Origin team because of a racial slur targeted at an Indigenous player of the opposite team by his coach. Of course, racial abuse does not only appear in the sports arena. Consider Fanny Desaintjores, who was sworn at, told to speak English or die, and was threatened with having her breasts cut off for singing in French on a Melbourne bus. In February this year, a 77-year-old Indigenous man was racially abused and assaulted by two teenage girls on a Gold Coast bus. What these examples show is that, be it against Indigenous Australians, Jews, Muslims, in the sports arena or on public transport; racial vilification incites a culture of bigotry.

This renders George Brandis’ comment both narrow minded and dangerous.

In 2009, Holocaust denier Fredrick Toben was successfully prosecuted under s 18C. Toben, who publicly propagated offensive, anti-Semitic material and suggested that those who found his denial offensive possessed ‘limited intelligence’, would be protected under the new racial vilification laws proposed by the draft legislation.

Because Toben’s claims were expressed as a matter of ‘public discussion’ they would be permitted.

So, as an Australian community, it comes down to what kind of society we want to live in. Do we want to live in one predicated upon inclusion, where the weak can seek legal protection from hate speech that compromises their wellbeing? Do we want to live our daily lives without fear of our personal safety being threatened from flagrant vilification and abuse? Would we rather live in a country where hate speech is hastily fashioned and allowed free rein?

Do we want to destroy the very fabric of tolerance, diversity and inclusion that our nation is founded upon? These are the questions that must be asked in light of the proposed legislation. It is the cohesion of Australian society that is at stake.

To repeal s 18C of the Racial Discrimination Act would seriously weaken the existing protection against racial abuse. It sends a message that bigotry is acceptable if uttered in a public debate, instead of allowing individuals the freedom to live unaffected by it. The right to free speech is an important right in any democratic society, but the pursuit of this right should never substantiate one’s right to racially abuse others. The proposed amendments to the Act appear to do just that.

The Brief | Volume 20, Edition 2

9

Do we need different laws to address sexting?

Karina Marlow writes.

SEX[T]

OFFENDERS LIST

T

here have been growing calls for new laws to address sexting, as teenagers have been charged with possession of child pornography after compromising images were found on their phones and computers. Though the laws were intended to protect young people, they are having the unintended consequence of catching some of them within the child pornography legislation net, which was created before sexting rose to prominence. Although sexting is acknowledged as inappropriate and risky behaviour, youth advocates, parents and lawyers are questioning why teenagers are being grouped with serious sex offenders.

Several cases have received prominent media attention and sparked debates over how the laws operates. In Victoria, a 17 year old who broke up with his girlfriend, also 17, sent stills from a sex tape they had made to three friends. After receiving legal advice he pleaded guilty to making and transmitting child pornography,

10

The Brief | Volume 20, Edition 2

was fined $1000 and placed on the sex offenders list for eight years. The boy’s father, though disgusted by his son’s action and supportive of tough legislation on child pornography, claimed that the finding was ‘madness’.

WHAT IS IT AND WHY IS IT SIMILAR? Sexting occurs when people send revealing pictures of themselves or friends to others via the internet or mobile phones.

Thus the word ‘sexting’ combines the idea of ‘sex’ and ‘texting’. Though the pictures are often taken by the young person themselves or with their consent, and are designed to be sent to a particular person, these images are often spread more widely. Under the current legislation those involved can be charged with transmission of child pornography and other offences such as indecency.

THE LAW The offence of producing, disseminating, or possessing child abuse material, which includes images of children under sixteen

in a sexual pose or activity or containing nudity was created under division 15A of the Crimes Act (1900) NSW and is punishable by a maximum of 10 years imprisonment.

However in NSW the possession of child pornography is not of itself an offence that results in registration on the child sex offender list, created under the Child Protection (Offenders Registration) Act. However in the ACT, the Northern Territory, South Australia, Western Australia and Victoria possession of child pornography leads to an eight year listing.

Registration on a child sex offender list was first introduced in NSW in 2000 and subsequently between 2004 and 2006 all the other States and territories created similar legislation. The list of registrable offences varies greatly from State to State with offences ranging from sexual assault to loitering near schools. Most are divided into a two tier system with more serious offences resulting in registration for 15 years and less serious offences in 8 years. Information that can be recorded in the register includes the

... law academics, Thomas Croft and Murray Lee, argue that the current Australian legislation lacks the ability to effectively distinguish between sexting and child pornography offences and that consent, motivation and the level of harm should be considered in deciding cases. They conclude that the current legislation may in some cases do more harm than good. and to aid police in the investigation, prosecution, monitoring and management of cases. However Dr Greg Lyon, former chair of the Victorian Criminal Bar association points to a ‘clash of the old and the new’ where the wider purpose of the legislation collides with new technology and behaviours leading to individual injustices. This is a sentiment echoed by the Victorian Law Reform Commission, which, in a review of the legislation, found that of the approximately four thousand people currently recorded on the State’s Register, twenty-six were under 18 when their offence was committed.

offender’s personal details such as address, date of birth, the passwords they used to access any illegal site and even the make details of their car. There are also ongoing requirements to report to the Commissioner of Police each year and in some States to notify of any inter-state travel plans. More importantly for young people it damages their reputation and limits their job and volunteer opportunities as they cannot work in any industry that requires a Working with Children Check.

Sydney University law academics, Thomas Croft and Murray Lee, argue that the current Australian legislation lacks the ability to effectively distinguish between sexting and child pornography offences and that consent, motivation and the level of harm should be considered in deciding cases. They conclude that the current legislation may in some cases do more harm than good.

The purpose of the child sex offender legislation was to get tough on offenders

There have also been claims that the rising number of low-risk registered offenders can result in police time being wasted as they have to supervise those who do not pose a risk. It can also been seen as limiting the power and effectiveness of the Register if offences with a wide range of criminality are included on the same list.

Charges over sexting have also been an issue in the United States where three high schoolers faced the possibility of a twenty year sentence for child pornography related charges after taking revealing photographs of peers at parties.

Furthermore, sexting has been linking to at least two reported cases of suicide in the States after students were ridiculed when the pictures they had taken were shared publicly. Since 2009, over 20 states have moved to create more lenient punishments for sexting.

WHAT SHOULD BE DONE ABOUT IT? In Australia, there have been calls from parents and youth advocates to create a new law that distinguishes sexting

from child pornography or at least gives courts more discretionary power over who can be included on the Register. The Attorney-General of South Australia, John Rau, has been an active voice in calling for national law reform on the issue. His two suggestions, which will be put to the Attorney-Generals of other states, are creating a defence for sexting scenarios or creating an alternate offence with a lesser punishment. The Federal Government has also recognised the issue with the Senate Committee on Cyber Safety Report released in late 2013 also suggesting that the introduction of a tort for the invasion of privacy and the creation of national digital communications tribunal might also be options for consideration. After examining submissions from psychologists, teachers, NGO’s, police and state governments they concluded that the issue needed to be addressed urgently and suggested that an inquiry be conducted into the best options for addressing the problem.

However this issue cannot simply be solved with legislation. Educating young people about the legal and social consequences of their actions is also important to prevent unfair results. The Young People and Sexting in Australia study examined the opinions of highschoolers on sexting and found that many do not see it as a serious or overly sexual activity. They claimed that adults often overreacted to what some saw a method of flirtation or more simply a joke and had little idea of the legal ramifications of their actions. Parents have also called for a greater focus on education rather than punishment particularly in regards to the hurt that can arise when these images are shared.

The Brief | Volume 20, Edition 2

11

Former volunteers at the Women’s Legal Service Nandini Bajaj and Laura Webster

Social Justice Corner

Volunteering with the Women’s Legal Service Nandini Bajaj

O

ne of the most pressing issues facing women today is domestic violence. In Australia, a woman dies every week at the hands of her partner, making a steady death toll of 52 women each year. With the recent cuts to funding for community legal centres, help for women in need is even more difficult to come by than before. That said, I’m incredibly pleased to say that I volunteered over the summer with the Women’s Legal Service NSW to develop SpeakUp, an app that’s a national domestic violence service database, the first in Australia.

My summer volunteering at the Women’s Legal Service NSW was one of the best experiences I have ever had. As an all female environment, and as one geared towards community services, the atmosphere was incredibly relaxed and friendly, and the solicitors were more than happy to lend a hand or provide advice to the

12

The Brief | Volume 20, Edition 2

volunteers. The volunteers themselves were amazing, and quite possibly the best colleagues. Big shout out here to all the Macquarie Law women who volunteered, making the bulk of volunteers, especially Laura Webster, Dhanya Mani and Ellen Hile.

So what does the Women’s Legal Service actually do? First and foremost, it is a community legal service for women in New South Wales, providing legal services for women in need, usually dealing with domestic violence cases. This includes custody battles that arise from these cases, and increasingly, defending women whose abusive partners have pressed an apprehended violence order (AVO) against them. This especially, is an important issue, as AVOs were designed to afford women trapped in abuse a means to remove that abusive presence from their lives. The second main part of the Women’s Legal Service is its Indigenous women’s service, which often collaborates with the regional outreach program. The same services are provided, but tailored to suit the needs of Indigenous communities.

Talking to the solicitors at the Women’s Legal Service and seeing their day-to-day operations gave me an insight into the very real problems facing CLCs. Regional outreach programs are essential to being able to provide services to the women who are even less able than women in urban areas to access these services.

However, the cuts mean that there are fewer and fewer resources to allow these outreach programs to continue providing essential services to women who need to have someone on their side, someone who is willing to listen, and who they can trust to be able to help them.

The national database is a tool to overcome this challenge, and it is most definitely going to provide some much needed information.

However, being able to run outreach programs that are often disguised as health clinics is still incredibly important to providing

... the cuts mean that there are fewer and fewer resources to allow these outreach programs to continue providing essential services to women who need to have someone on their side, someone who is willing to listen, and who they can trust to be able to help them.”

SOCIAL JUSTICE OPPORTUNITIES •

Semester Two internship with Australian Human Rights Commission for penultimate or final year students. Applications close June 16 - http://www. alrc.gov.au/about/legal-internship-program.

•

PLT placement with Legal Aid NSW in the civil law section. Applications close June 27 - http:// beyondlaw.com.au/job-hub/posting/135/pltplacement-legal-aid-nsw?returnl=

•

International Bar Association’s internship program.

Applications for the Hague close July 15 - http:// beyondlaw.com.au/job-hub/posting/95/legalinternship-programme-international-barassociation

•

Volunteer with LEAP Refugee Mentoring Program at Macquarie University - http://www.mq.edu. au/about_us/offices_and_units/widening_ participation/leap_projects/leap-macquarie_ mentoring_refugee_mentoring/.

abused women an excuse to get away from their partner and have a face-to-face conversation with someone who can help.

The Women’s Legal Service NSW is one of the most essential CLCs, and there are several opportunities to help. They have an intake of volunteers every semester, and do take PLT placements.

You can also learn more about legal issues facing women by registering for their free online seminars, and contribute your voice to the SpeakUp project, an initiative to generate discourse around ending domestic violence.

summerclerks

www.hdy.com.au/summerclerks

aspire. contribute. Thethrive.

Brief | Volume 20, Edition 2

13

Denise Hamad*: Could you share with us a brief description of your professional (and personal) background and how you came to be a member of the NSW Senate?

Mehreen: I grew up in Lahore, Pakistan where everyone (almost!) is pretty passionate about two things – cricket and politics.

Before moving to Australia in 1992, I graduated and worked as a civil engineer – a profession I deliberately chose as an act of feminism since it was heavily male-dominated.

I joined the Greens ten years ago because of our strong stand on multiculturalism, the environment, climate change, refugees and workers’ rights and, equality.

For me, the current role of a Greens MP has developed quite organically.

I’ve had amazing and diverse career opportunities from working as a researcher and academic at UNSW, to working in multinational and local firms as an engineer, to managing environmental divisions in local governments across NSW. Every organisation has been an opportunity to influence change towards environmental protection and social justice.

Being a part of the Greens movement, running as a candidate for the state seat of Heffron and now having the privilege of representing our community in parliament are all chapters of my ‘influencing positive change’ story.

Q&A with Mehreen Faruqi Name: Dr Mehreen Faruqi Position: Member of NSW Legislative Council (State Senate) since July 2013 Party: Greens Portfolio overview: Animal Welfare, Environment, Women, LGBTI people, Transport, young people, multiculturalism.

14

The Brief | Volume 20, Edition 2

D: What were your expectations about this position before you got it?

After you became a senator, do you think that these expectations were met? Were they exceeded? Were they disappointed?

M: It’s really hard to imagine what such a role really entails, till you’re in it. One of the privileges of being an Upper House MP is that you don’t have only one electorate, but represent all of NSW. So I’ve been travelling across the state meeting with communities and Greens members to find out about their concerns.

What really excites me about being in this position is the opportunity to campaign with communities across NSW on protecting our environment, advocating for sustainable and integrated public transport, women’s rights, animal welfare, removing discrimination at every level, and then bringing these issues and campaigns into parliament to influence legislation. I do feel honoured to have this opportunity.

I am quite disappointed at the refusal of the current government to consider expert and scientific evidence in their decisionmaking. The recent passage of foetal personhood law (Zoe’s law) in the NSW Legislative Assembly is an example of this, where overwhelming and unanimous evidence provided by lawyers, medical experts and women’s rights advocates highlighting the dangers of this law, was ignored by the majority of MPs. It is quite obvious as well that our parliaments are not representative of contemporary Australian society. Firstly, only about 25% of parliamentarians are women and there is little representation from indigenous or culturally diverse communities or indeed LGBTI communities. We need to transform to more diverse representation reflective of our broader society. This will also be of benefit for democracy as many perspectives and voices will be part of the political debate.

D: Describe for us a typical working day/week for you.

M: Luckily, there is no typical day at all; every day is different. Everyday does have some common elements though: seeking and responding to media through radio, print, TV, social media, meeting with stakeholders and community members within my 12 portfolio areas, responding to queries and concerns, speaking at or attending community events and organising grassroots campaigns.

divert funds to public transport options, protecting our precious marine parks from overfishing, our national parks from being commercialised, ensuring that ecologically sustainable development principles remain at the heart of decision-making and supporting animal free circuses.

It is this collaborative and shared work that inspires and motivates me.

D: What is the most challenging aspect of your work?

M: As the [Baird] government’s agenda of privatising NSW rolls out we are clearing facing attacks on our environment, public service, on social justice and equality.

We have the challenge as well as the responsibility to turn this around.

I wish I had more time in the week! I do find prioritising issues challenging, because everything is important: from protecting animals, to protecting the Leard forest from coal mining, to trying to convince the government to implement affordable and effective public transport options. The most inspiring thing though is that communities are coming out more and more in a much stronger way to stand up against these attacks. Many hands make light work, and I think that’s what’s going to pan out over the next year or so. So, while it’s challenging, it’s exciting to be a central part of a grassroots movement to turn back this tide on environmental and social injustices.

D: What can you tell us about being part of a smaller party? How does this affect the daily work?

M: The Greens is a young party, and it’s amazing that we have five people in the upper house in NSW, and one in the lower house, and hopefully we will have more after the 2015 election. We have a very strong belief in our four principles – grassroots democracy, social justice, ecological sustainability and peace and non-violence. As a political movement, these are at the core of our practice within the party and in our parliamentary representation. We do have a long-term vision for a just and sustainable society, and the way to achieve this is by working with communities outside parliament to build momentum for change to influence legislation inside parliament.

Although, our parliamentary representation is not as big as the old parties, we do punch above our weight in the media and in our work both inside and outside parliament. Our connectedness with members and communities means participatory democracy is the core of Greens decision-making processes, which is something bigger parties lack, and what communities are asking for. It is this meaningful engagement with people and strong commitment to principles that underpins my work every day. * Disclaimer: Denise is a research assistant at Dr Faruqi’s office. She was not paid for this interview.

There are, however, two distinct periods in the parliamentary calendar – parliamentary sitting and non-sitting days. When parliament is sitting from morning till night, you’re pretty much engrossed in preparing and debating legislation and questioning the government.

But outside of this period is when much of the activism, engagement with the community and campaigning take place.

D: What would you say has been the highlight or achievement of being an MLC so far? What’s really stood out for you?

M: For me - and maybe I’m still idealistic - but for me every day is a highlight. It is a complete privilege to stand in parliament and join my colleagues to be the voice of Greens members and people across NSW who are standing up for environmental protection and social justice. My team and I work closely with communities and stakeholders on a number of campaigns, for example, opposing the $12 billion WestConnex tollway to The Brief | Volume 20, Edition 2

15

WHALING

IN THE ANTARCTIC: WHAT WAS REALLY DECIDED AND WHAT THIS MEANS IN REALITY Elyse O’Sullivan considers the recent ICJ judgement and recent developments.

T

he International Court of Justice (ICJ) ruling on the illegality of the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) was welcomed with open arms by the international community as finally giving some teeth to the anti-commercial whaling movement.

Although there is a marked lack of enforceability of it’s decisions, the ICJ ruling is the first legally binding decision against JARPA II in the Antarctic; a program many had criticised as commercial whaling under the guise of scientific research.

Though this success should be celebrated, it should also be put into context. ABC Fact Check reports there are at least 10 countries undertaking some kind of whaling activities. Of these nations however, not only is Japan the largest, but it is the only country with programs that extend beyond its own territorial and economic boundaries. This aspect of the JARPA II program was utilised by the ICJ in finding it had jurisdiction over the case.

This argument hinged on the fact disputes before the ICJ must be either concerning the delimitation of maritime borders; or be related to the exploitation of a State’s maritime area or an area adjacent thereto.

Both parties agreed the dispute was not in

16

The Brief | Volume 20, Edition 2

regard to maritime delimitation however, as JARPA II takes place in the maritime zone claimed by Australia and the taking of whales from that area in considerable numbers, could be viewed as a form of exploitation. Whether such action under the ICJ could be brought forward regarding Japan’s other whaling program in the Pacific however is another issue.

Australia alleged, as outlined in the summary Judgements of the ICJ ruling: “JARPA II is not a programme for the purposes of scientific research within the meaning of Art VIII of the Convention, Japan has breached and continues to breach three substantive obligations under the Schedule: the obligation to respect the moratorium setting zero catch limits for the killing of whales from all stocks for commercial purposes, the obligation not to undertake commercial whaling of fin whales in the Southern Ocean Sanctuary, and the obligation to observe the moratorium on the taking, killing or treating of whales”.

The International Convention for the Regulation of Whaling 1946 (ICRW or the Convention) is enforced by the International Whaling Commission (IWC or the Commission). The Commission works to promote the recovery of depleted whale populations and is charged with the management of whaling. Article VIII of the ICRW stipulates: “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit”.

The ICJ judgement did not however explicitly concern Japan’s other whaling programs conducted in the Pacific. Japan launched its annual coastal whaling program from Ayukawa in late April. The hunt had been anticipated to commence April 22nd but had been delayed to the 26th.”

In ascertaining the meaning of Art VIII of the ICRW, the Court determines the phrases ‘scientific research’ and ‘for the purposes of’ to be cumulative. Concluding even if a programme involves scientific research, Art VIII will not be applicable unless the activities are ‘for the purposes of’ that research.

The Court found no basis to conclude the use of lethal methods per se unreasonable in the context of JARPA II, as evidence demonstrated at least some of the data sought by the program could not feasibly be achieved through use of non-lethal methods alone. However, the Court was not satisfied Japan had undertaken feasibility studies, or practicability studies, of the potential use of non-lethal methods.

The Court found no evidence studies had been undertaken to determine whether it would be possible to combine smaller lethal intakes coupled with an increase in non-lethal sampling methods to achieve JARPA II’s research objectives. Evidence also suggested the target sizes to be larger than reasonable; again with no feasibility studies being undertaken in relation to lowering sample sizes as the program progressed from 2005 onwards.

The Court’s conclusions included the following: there was not sufficient evidence to demonstrate JARPA II was for the purposes of scientific research and that from 2005 onwards, under JARPA II, Japan had set catch limits above zero for three species of whale and therefore not acted in conformity with its obligations under the ICRW. In response to the ICJ ruling, Japan ceased whaling under JARPA II in the Antarctic and affirmed to the international community their intention to abide by the decision, confirming the cancellation of the 2014-2015 hunt in the Southern Ocean.

“We will carry out extensive studies in cooperation with ministries to submit a new research program by this autumn to the International Whaling Commission (IWC), reflecting the criteria laid out in the verdict” said Yoshimasa Hayashi, Minister of Agriculture, Forestry and Fisheries.

The ICJ judgement did not however explicitly concern Japan’s other whaling programs conducted in the Pacific. Japan launched its annual coastal whaling program from Ayukawa in late April. The hunt had been anticipated to commence April 22nd but had been delayed to the 26th. As the anticipated departure date coincided with US President Barak Obama’s visit to Tokyo there has been speculation this was the deciding factor in the delay.

Hayashi emphasised the technicality that the ICJ had not prohibited this particular program. Although it was announced the program would operate on a smaller scale than had been initially anticipated prior to the ICJ ruling.

Interestingly, a survey conducted by Asahi Shimbun newspaper reported 60% of respondents were in support of lethal whaling; with only 14% saying they ate whale meat ‘sometimes’ or ‘fairly infrequently’.

The IWC shall have its biennial commission meeting this coming September in Slovenia. Undoubtedly Japan will try to convince the IWC to approve a proposed hunting program in the Antarctic in 2015-2016. Japan has already expressed its intention to draft a new program in accordance with the ICJ ruling for the 2015-2016 season.

The Brief | Volume 20, Edition 2

17

Where does Australia stand on Multiculturalism and policy now?

Luke Richards writes.

T

his year marks two significant anniversaries. The centennial anniversary of the beginning of the Great War and the 40th anniversary of ‘multiculturalism’ as debuted in the houses of parliament by Malcolm Fraser. The significance of these two anniversaries is not what is being talked about, but precisely what is not being talked about. This meaning in absence is best portrayed in James Fenton’s poem German Requiem: It is not the houses. It is the spaces between the houses.

It is not the streets that exist. It is the streets that no longer exist.

In the same way, these anniversaries illuminate the lack of discussion about culture and what it means to live and be an Australian. The questions not asked: Is Australia still a multicultural society?

Should we be? What kind of society do we want to become?

40 years ago multiculturalism was about to be ordained as Australia’s dominant immigration and national-identity policy for

18

The Brief | Volume 20, Edition 2

more then three decades. Whilst the term ‘Multiculturalism’ has now become a part of the common man’s vernacular, as interchangeable in conversation as ‘pie and sauce’ or ‘a three thousand dollar bottle of grange’ – recent successive governments have all but abandoned its denotation and meaning. The last policy statement on multiculturalism by the Australian Government was eleven years ago in 2003. Entitled ‘United in Diversity’, it was a Howard Government initiative, which built upon the 1999 ‘New Agenda’ multicultural policy. It focused entirely on counter-terrorist operations and strategic community management, with all notions of a pan-Australian multiculturalism as an identity being excised. It was a response to the September 11th attacks of 2001 and

the Bali bombings in 2002; a mandate extending only so far as 2006, whereupon it was to be reviewed. But when this deadline past, only a mute bipartisanship filled the void.

Since then consecutive Australian Governments have done their best to shuffle away from multiculturalism altogether. In 2007 the Department of Immigration and Multicultural Affairs (DIMA) was changed to the Department of Immigration and Citizenship (DIAC).

Further, the minority Gillard government in 2010 stripped the title of ‘Multicultural Affairs’ from the Parliamentary Secretary

‘Multiculturalism’ has now become a part of the common man’s vernacular, as interchangeable in conversation as ‘pie and sauce’ or ‘a three thousand dollar bottle of grange’ – recent successive governments have all but abandoned its denotation and meaning.”

Kate Lundy.

Whilst Tony Abbot, the then opposition leader, declined to create a shadow spokesperson for multiculturalism at all.

But the magnum opus came in September 2013, when the new Abbot government ended the Ministry of Multicultural Affairs altogether.

Parliamentary Secretary to the Minister for Social Services the Hon Concetta Fierravanti-Wells responded to the closure by stating: “We have a unique Australian multiculturalism. It’s really one where we become Australians and assimilate at different paces.” It is perhaps unique, if you equate ‘multiculturalism’ with ‘assimilation’ as if they were synonymous, and then eradicate all mention of the word from government. So multiculturalism is dead, in all but name, (well the name too). Long live its obscure successor!

Contrast this political double-speak with the rest of the world. In 2010, Angela Merkel the Chancellor of Germany decried that the policy of multiculturalism had “utterly failed” and that a new policy of

integration would supersede it. The same was true of the United Kingdom after the 2005 London bombings, a multiculturalism policy not dissimilar from our own, was abandoned in favour of a ‘community cohesion’ and integration policy. Even in the Netherlands, considered 'the European bastion of toleration and multiculturalism', had itself wrenched into intense public discourse after the ritualistic decapitation of the filmmaker Theo van Gogh by Dutch Muslims and the subsequent attempted murder of Ayann Hirsi Ali, a member of the Dutch Parliament. Since then, the Netherlands has introduced mandatory civic integration programmes. According to Law Professor Dora Kostakopoulou this is an attempt to create an “antidote to the alleged failures of multiculturalism and the alleged creation of parallel worlds within societies owing to increasing ethnic and cultural heterogeneity.”

The paradox is in a period of unprecedented human movement across the world and in a time where a total quarter of the Australian population is born overseas, far above the 11% OECD average, no one is talking about it. But this is not merely a conversation about immigration or asylum seekers. Such topics have come to dominate the public sphere ad nauseam. This concerns who we are as a people and what we should wish to be as a society. In a recent visit to Australia, Ayann Hirsi Ali commented upon this lack of discourse at the Wheeler Centre: ““This is what’s amazing about Australia, I come at a time when there are elections. The people really want to have a debate about culture and the clash of civilisations… and the politicians are having a cosmetic debate about immigration, and about big Australia and about small Australia. But that is not what the debate is about. If you want to learn anything about Europe, the mistakes that Europe made. It is exactly what you are

seeing now, they trivialised the debate…”

The consequences of avoiding these debates over values and over cultural identities can be costly. Seyran Ates, a women’s rights lawyer and Germany’s 2005 Woman of the Year, denounced the lack of open discussion in Germany as the ‘Multicultural Mistake’. She was forced to abandon her free legal clinic for Muslim women after death threats and assaults were made against herself and her clients.

She blames the benign political consensus in Germany that sought to avoid the debate about identity and culture until the disparities between the differing sects in society reached fever pitch.

Meanwhile, Australia continues to become increasingly balkanised along cultural, religious and ethnic lines. Questions as to whether we should have a pluralistic legal system naturally arise. Should the common law merge with the ancient Hindu dharmasastra and Mansumriti scholarly works? Should Australian lawyers, as the Law Society of England and Wales is considering to do, execute wills and divorces after the respective Sharia law schools of Hanafi, Maliki, Shafi’i and Hanabali? What value do we place on our values? What society do we want to be?

The debate on these questions and others is just not there. But the answers are never going to be found in whirr of absent mind.

Whilst Bismarck is notoriously remembered for uttering, “The whole of the Balkans is not worth the balls of a single Pomeranian grenadier” unlike his ‘laws and sausages’ shtick, this quote is recounted for its fatalistic error to foresee the catastrophic near future that was the First World War. In the same way, without discussion or debate, Australia’s future as a society shall be as fragmented and divided as that provincial-obsessed peninsula – The Balkans: that crossroad of people, culture (continued on page 31) The Brief | Volume 20, Edition 2

19

Patrick Barkachi explores the features of time billing systems in firms and new alternatives.

THE FUTURE OF

BILLING

“Who ever says to a client that my billing system on its face, rewards me at your expense for slow problem-solving, duplication of effort, featherbedding the workforce and compulsiveness, not to mention fuzzy math?” Scott Turow, “The billable hour must die”, American Bar Association Journal.

I

nitially billing was something of an art, one had to consider the nature of the matter, the time spent, the work done and the ability of the client to pay. The introduction of billable hours to Australia between the 1960’s and 70’s severely changed the legal working environment. Lawyers began billing by time spent on a client’s case granting them the ability to bill a client on anything they deemed suitable. This eventually led to potential overcharging either unwittingly or via unethical practice. Enough people will tell stories about their frustrating brush with the legal system and the exorbitant fees they were left with, that the image of a money-hungry lawyer is stereotyped.

Every year, the Office of the Legal Services Commissioner receives over 3000 complaints regarding the conduct of

20

The Brief | Volume 20, Edition 2

barristers and solicitors in NSW. The core of frustration among clients is perceived over-charging by the lawyer. This is a long and ongoing trend in the profession where the majority (91%, based on a survey about billing practices) performs work under a billable hours scheme.

We hear about blatantly unethical billing practices that strengthen the negative perception of the profession; lawyers being caught billing over 24 hours in a day, billing for the time spent sending Christmas cards to a client or wrapping a gift intended for an expert witness. These, however, aren’t the only reasons a client will end up with a questionably large bill. They’re actually much less common than being unintentionally overcharged. Largely, this is due to inaccurate time recording. There are a few reasons this could occur, for example; lawyers may not realise they included breaks in the final time-recording or lawyers could be on the phone to matter B whilst recording time for matter A. Working out the time cost the day after may often lead to forgetfulness and subsequently charging for time spent procrastinating. As appealing as being paid to procrastinate sounds, it remains unequivocally wrong.

The biggest issues with a time based billing system aren’t only that clients are being over charged. Firms could potentially use the billable hour system to measure the utility of an employee; this gives weight to decisions on salary, promotion and bonus prospects. Lawyers may focus on driving up billable hours in favour of advancing their own self-interests within the firm.

You might ask. How could an incentive to work harder and meet set requirements be a problem? The push to drive up billable hours means lawyers are no longer willing to take the time to clearly communicate how the billing system will work for a client’s case, leaving many surprised with a substantial bill. Time is money in any competitive firm environment and this mentality restricts the free flow of communication between a lawyer and client as a lawyer cannot afford to waste time on matters not central to a client’s case.

The billable hour is fundamentally about quantity over quality. Former Chief Justice of the High Court Murray Gleeson stated, “It is difficult to justify a system in which inefficiency is rewarded with higher remuneration.” Due to the nature of a

Former Chief Justice of the High Court Murray Gleeson stated, ‘It is difficult to justify a system in which inefficiency is rewarded with higher remuneration.’ Due to the nature of a time-based system, productive lawyers who efficiently complete their matter in less time aren’t always rewarded for their efforts.” hours, with about 7.7 billable hours expected per day, factoring in time for breaks, lunch, taking phone calls from friends and speaking with colleagues a lawyer can only bill about 70% of time spent at work, meaning a working day extends to about 12-15 hours to meet billable targets. As you can imagine, if one simply cannot meet their billable hour requirements, they can, and have at times resorted to unethical practices.

time-based system, productive lawyers who efficiently complete their matter in less time aren’t rewarded for their efforts. The ‘time is money’ mentality of some leads to the belief that one shouldn’t waste time on un-billable work creating a factory environment. This leads to another issue associated with a time based billing system.

A report on psychological distress and depression in the legal profession by the Convener and Senior Vice President from the Law Society of Western Australia Dr. Christopher Kendall highlights the need to shift towards alternative methods of billing.

The report links high levels of distress and depression to a competitive environment compounded by billable hour targets and fear of failure. With more than 35% of law students suffering from psychological distress and almost 40% of that reported distress being severe enough to warrant medical attention, it’s clear that problems with mental health in the legal professional start early and only continue to get worse.

Albeit, not true in all cases it is significant enough to warrant serious consideration.

Meeting set billing requirements as a lawyer means working unsustainable

The General Council of National Australia Bank stresses than an emphasis on achieving billable hour requirements results in burned out lawyers. CJ Tom Bathurst criticises the billable hour, warning the emphasis on commercial success leaves lawyers and clients open to exploitation, creates tension with legal ethics and could limit the recruiting to ‘mindless drones’.

Clearly there is a lot of support within the legal profession for abolishing the billable hour. It is also largely client supported, a survey by the Australian Corporate Lawyers’ Association showed that almost 60 per cent of companies were seeking alternatives to hourly billing from their legal advisers.

Due to organisational inertia not many firms are willing to go against the status quo. There are many alternative options to time-based billing, however, the most common and growing trend towards alternative methods involve the use of a fixed or capped billing system.

Many firms have led the movement towards a fixed and capped fee system and are successful. Marque lawyers, pioneers in the area, emphasise that a time costing system dehumanizes lawyers.

Further, a fixed fee or capped system can be a lot more accessible for clients’

A fixed and capped fee system includes the lawyer and client agreeing on a fixed maximum fee for services, this means that the firm can charge an agreed upon hourly rate but the total compensation for legal services cannot exceed the maximum specified. Apart from being straight-forward and easy to administer, it forces lawyers and clients to sit and communicate in depth how to proceed with the case and what costs will apply in order to finalise a suitable maximum. It also means lawyers aren’t under constant pressure to work ridiculous hours or engage in unethical billing practices just to meet firm requirements.

“A survey on members of the Australian Corporate Lawyers Association reveals that 75% of respondents consider fixed and capped fees to be the most appropriate form of billing for routine matters and for large complex commercial transactions” Steve Mark, Former Legal Services Commissioner (NSW), “Analysing Alternatives to Time-Based Billing and the Australian Legal Market”, Finance Essentials for Practice Management.

Looking to the future of the legal profession, for the sake of lawyers and clients, alternatives to time based billing should be seriously considered. As we see a slow trend towards alternative methods, in order to succeed as a business in the industry, firms must change pricing policies to meet market demand, which seems to increasingly favour the benefits of a fixed and capped system. Such alternatives are one part, albeit a crucial one, of what appears to be an evolving, dynamic legal profession.

The Brief | Volume 20, Edition 2

21

SEX AND GENDER DIVERSITY: A FIGHT FOR THOSE WHO FALL IN BETWEEN Nava Mostajabi outlines some significant reform arising from Norrie v NSW Registrar of Births, Deaths and Marriages.

H

ave you ever asked yourself why institutions continue to demand that we identify ourselves as male or female?

What difference, if any, does gender really make to your bank account, to the tax office, or to the many other organisations and bureaucracies that you deal with in your daily life?

not make sense to be categorised by a specific gender.

While it may only be a minor irritation for some to specify their gender, for many others it is not so black and white. It is a constant confrontation of who they are and how they identify. But now there is hope for change.

When the case was heard in the High Court last month, Counsel for the Registrar argued that the acceptance of more than two categories of sex would cause unacceptable confusion. But the High Court rejected this argument:

In the landmark case of Norrie v NSW Registrar of Births, Deaths and Marriages, the High Court of Australia, on 2 April 2014, has determined that a person in NSW can identify as a gender that is neither male nor female on a registry document.

The hearing was spearheaded by a Sydney resident named Norrie.

In 2010, Norrie applied for a name change, also requesting to have the gender removed from the identity certificate, to be replaced with “not specified”.

Norrie was identified as biologically male at birth but, after a reassignment, felt it did 22

The Brief | Volume 20, Edition 2

The primary question before the High Court in the Norrie case was whether the word “sex” in the Births, Deaths and Marriages Registration Act 1995 (NSW) (the Act) could mean anything other than male and female.

For the most part, the sex of the individuals concerned is irrelevant to legal relations.

The obvious exception to this is the Marriage Act, which in Australia was modified in 2004 to specify that marriage is not between two people, but a man and a woman. This was however challenged recently in the case of Commonwealth v ACT in 2013 where the High Court held that “marriage” under s 51(xxi) of the Australian Constitution includes marriage between persons of the same sex.

The High Court in the Norrie case

Norrie’s victory in the High Court means the enforced adoption of either male or female as the only way of being in Australia will come under increasing scrutiny and challenge.

This is the first time a court in Australia has recognised a legally valid alternative to the traditional binary male‒female view of sex.” noted that language develops, evolves and changes. The fact that a word is currently evolving does not mean the traditional meaning of the word must be taken as an absolute meaning, nor is a dictionary definition necessarily a statement of a word’s ordinary meaning.

Developments in the last two decades evidence an increased understanding that sexual identity is not dependent solely upon physical characteristics and is not necessarily unambiguous.

Norrie’s victory in the High Court means the enforced adoption of either male or female as the only way of being in Australia will come under increasing scrutiny and challenge. This is the first time a court in Australia has recognised a legally valid alternative to the traditional binary male‒female view of sex. The High Court has now recognised that sex may be non-specific. At the moment the decision is confined to people in NSW who fulfill the requirements under Part 5A of the Act. It is possible however that this decision will act as a precedent both for other areas of law and also other states’ equivalents to the NSW Act. Norrie’s case is the latest development regarding legal recognition of transgender, intersex and gender diverse people. While there have been reports of states such as Western Australia and Victoria issuing certificates to individuals without an ‘F’ or ‘M’ marker, it was only recently that a more sophisticated approach to sex recognition has been applied consistently across Australia. In 2011 the Federal Government allowed individuals greater

ability to be issued a passport with an ‘X’ marker and recognised transgender people as their affirmed gender without the need for surgery. The Government is now expanding their passports policy to all government records under their “Guidelines on the Recognition of Gender”.

In the last few decades the Australian courts have considered a number of cases raising the issues of recognition of sex.

Through cases such as AB v Western Australia heard in the High Court of Australia in 2011 and Kevin v AttorneyGeneral (Cth) heard in the Family Court of Australia in 2001, a body of jurisprudence is slowly being built that recognises that sex is more complex than a simple ‘male’ and ‘female’ binary. Finally, the Federal Government recently passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 that provides protection against discrimination on the basis of sexual orientation, gender identity and intersex status.

If you have a strong desire for recognising your identity as a male or a female, that’s great! But people like Norrie who fall in between should also have a choice.

Sex and gender diverse people face problems every day accessing services and facilities that most Australians can use without thinking twice. It is essential that our legal system accurately reflects and accommodates the reality of sex and gender diversity that exists in our society, and the High Court has taken an enormous leap in achieving that goal by effectively ruling out the necessity for a binary world.

The Brief | Volume 20, Edition 2

23

INTERNING

IN THE ‘KINGDOM OF WONDER’ Yumna Arif

T

his summer I was fortunate enough to spend three months in Phnom Penh, Cambodia through PACE International and Australian Volunteers International. I was one of twelve Macquarie law students who were all assigned to different legal organisations such as NGO Forum which helps secure indigenous peoples’ land against development projects, and the Arbitration Council Foundation which resolves labour disputes and helps stabilise Cambodian labour law.

The whole experience was invaluable, eye-opening and amazing to say the least.

From snorkelling in the beautiful waters off Rabbit Island in Sihanoukville to exploring the magical ancient ruins of Angkor Wat to trying out as many different types of cuisines possible.

We did do some work …despite what our Facebook friends may have believed.

The organisation I worked with is called Asian International Justice Initiative which focuses on monitoring the Extraordinary Chambers in the Courts of Cambodia (ECCC). It has been set up to specifically try those responsible for the genocidal atrocities during the Khmer Rouge regime in the 1970’s. One of their tasks is to report, interpret and publish trial proceedings to help increase public

24

The Brief | Volume 20, Edition 2

awareness amongst the Cambodian and international community about any issues of concern, as well as provide general trial updates. The dialogue spoken in the Trial Chamber can often be dry and difficult to follow due to the legal complexities being discussed, so it’s great to see that information is being simplified and channelled into the mainstream, such as via live Twitter feeds.

It was great to see the Trial Chamber live in action. Those sassy French lawyers had me daydreaming about one day working in international criminal defence. To the lay person, the ECCC appears impressive, in the way that all the submissions from the OCP (Office of Co-Prosecution), Civil Parties and Defence Counsels tie up somewhat seamlessly. However, after researching and compiling reports on the fair trial rights of the accused, it became evident to me how slow the progress of the trial was and how much further the victims were from obtaining justice.

The Cambodian people inspire me with their calmness, considering their beautiful country’s horrific past. They watch patiently as highly prominent international lawyers for the accused argue that Case 002 should be severed into a two-part case, to ensure their client has the best opportunity to enforce their legal rights. This has the

potential to prolong the trial for another six years which realistically means the accused (who are in their 80’s) will be dead before they can be punished for their countless charges.

Cambodia overall is a bucket-list traveller’s dream, where you can do pretty much anything all under a tight budget. Living in Phnom Penh was, well, PenhPhnomenal (I had too…sorry). The city is absolutely thriving and whilst there were some issues of mass political protests, they were easy enough to stay away from. Three months is not enough time to properly save the world, but I think my fellow travellers and I can agree that it was enough time to actively participate in specific roles which had a lasting impression on our mindset for the future.

Global career Global expertise Global opportunity

rid Mad

ork New Y

Aust ralia

Bangkok

Shang hai

Paris Beijing London

bai Du

n Berli

Broadening your horizons comes as standard Join one of the global elite, visit www.allenovery.com/careers 2,821 Lawyers

Š Allen & Overy 2014

525 Partners

43 Offices

30 Countries The Brief | Volume 20, Edition 2

www.allenovery.com/careers

25

The NSW Bar Association’s Committee has advised against the reintroduction of QC. Max Turner examines their reasons.

S

enior Counsel (“SC”) or Queen’s Counsel (“QC”).

Does it really matter? Both titles denote pre-eminence, seniority and distinction amongst Australian barristers in precisely the same way. However, one represents the independence and freedom of our very own Bar Association, whereas the other is inextricably and anachronistically linked to Australia’s colonial past. Despite 21 years of “SC” certainty, our silk are now facing potential recourse to the monarchic artifact that is the QC post nominal.

SILK WARS: THE MONARCH STRIKES BACK

THE CHANGING LANDSCAPE OF A SENIOR AUSTRALIAN BARRISTER’S POST-NOMINAL 26

The Brief | Volume 20, Edition 2

The title of Queen’s Counsel was nationally abolished in 1993 due to its blatant purposelessness. Taking a (four) leaf (clover) out of the Irish legal system’s book of how to legally emancipate one’s self from the UK, the New South Wales Bar Association resolved to implement and regulate their own method of recognising senior advocates, and with such resolution came the birth of the progressive, noncolonial “Senior Counsel.” Such has the system operated for the last 21 years.

2014 has brought a rapidly spreading movement to reinstate the formerly abolished title of Queen’s Counsel. The Commonwealth, Queensland and Victorian jurisdictions all recently reestablished the ability to award the title of QC to deserving Barristers. This movement, having infiltrated the borders of New South Wales, needed to be swiftly addressed by the New South Wales Bar Association.

The Association’s Council consequently established a committee designed to determine the desirability of reinstating the use of the title “Queen’s Counsel” and whether the Bar Association should approach the Attorney General for support in doing so.

The perplexing and unnecessary return to this monarchic anachronism provides as much social utility as allowing a private school prefect to don a crown.”

Chaired by the Hon. L J Priestley QC, the committee returned a report on the 16th April 2014 detailing arguments both in support of and in opposition to a change of title. The majority view was that it was not suitable to approach the Attorney General, nor was it appropriate to make a recommendation in favour of the reinstatement of the title of QC. First, I would like to outline the arguments in favour of reinstating the QC title as supported by the minority.

The committee’s proponents of the QC title relied on anecdotal evidence to substantiate a claim that barristers would risk losing a commercial and competitive advantage when bearing the SC moniker, compared to their QC counterparts. This is by virtue of the assertion that the QC title possesses a deeply entrenched popular resonance worldwide. Citing the popularity of the QC title in the Asia-Pacific market, the proponents fear that a world with both SCs and QCs would manifest a false perception that the latter is superior to the former. As a renowned brand associated with legal excellence, QC titles were set to take precedence over the apparently unfamiliar and confusing SC title.

Furthermore, due to the knee-jerk QC reinstatements from the conservative Attorney Generals of the northern and southern bordering states of New South Wales, interstate inconsistency in the QC/ SC nomenclature would further confuse users of legal services. This argument would suggest that an ill-informed client or solicitor would rarely source a barrister from New South Wales when they could alternatively retain a supposedly better in Queensland or Victoria. The minority believe that a nationwide implementation of the QC title would proverbially kill two birds with one stone – not only would there be national uniformity in the title, but such a title would be universally held in higher esteem. Such a decision would ultimately serve the supposed strong public interest in protecting SCs from unfair competition.

Albeit noble, the intention to protect our homegrown barristers from being forced to unjustly punch in a higher weight division should invariably come second to the overarching purpose of notifying the public of and guaranteeing the exemplary administration of justice.

This particular purpose will be canvassed below as I detail the (unequivocally correct) views of the majority and their subsequent reasoning.

At the forefront of the majority’s reasoning was the service of the public interest. As made clear by the current Senior Counsel Protocol, the purpose of the designation of Senior Counsel is to allow members of the public to clearly identify barristers who are capable of providing beyond outstanding services and advocacy for the good of the administration of justice. Furthermore, with one fell swoop of devastating logic the majority conclusively refuted all of the proponents’ claims for want of empirical evidence. Mere anecdotal evidence was simply insufficient in compelling the rest of the committee to resolve to approach the Attorney General for the reinstatement of the QC title. Ouch.

In opposition to the reimplementation of the QC title, the majority was of the view that an independent and transparent system of appointment that is free from the political flavours, convictions and biases of the moment, would better serve the public interest. The involvement of the Executive branch of Government in recognising the seniority of Barristers would contribute to such political poisoning.

Peculiarly enough, this Executive intervention is afforded to no other profession but the legal. I am admittedly, as a law student, inherently biased in believing that the legal profession is the most illustrious and brilliant, however reason would suggest that senior members of other industries are just as, if not more worthy of Executive acknowledgement.

Should distinguished and senior doctors, accountants, teachers, engineers and supermarket cashiers (to name a few)

be worthy of like recognition? Despite the allure of a “Queen’s Bookkeeper” or “Queen’s Plumber”, mechanisms for ranking reputable members of a profession should be left to the representative bodies of that professions.

What’s more bizarre is the (un)timeliness of the potential reestablishment of the QC title. If a significant purpose of the nomenclatural reform is to adopt the attractive and prestigious QC brand and guarantee recognition of legal excellence overseas and interstate, then what of the ramifications of the succession of Queen Elizabeth II? Let’s be honest – Her Majesty will not live forever. Hence the imminent accession to the throne of Prince Charles, followed by Prince William, followed by Prince George will see the steady extinction of the QC brand and the supersession by a breed of “King’s Counsel” (“KC”). Despite the title’s overwhelming semblance to a fast-food outlet easily identifiable by any fried-chicken enthusiast, the KC post-nominal would be just as foreign to overseas pursuers of legal services as the SC. Whilst there may exist the potential for existing QC barristers to have their post-nominal altered to reflect the monarch of the time, a post-nominal that is not conditional upon any one person or gender would logically allow for a more sustainable brand.

Finally, Unlike Victoria or Queensland, the reimplementation of the QC title would occasion the logistically nightmarish and burdensome hurdle of repealing or amending s 90 of the Legal Profession Act 2004 (NSW). The provision expressly prohibits prerogative intervention of the Executive in (re)introducing official schemes for recognising seniority or status. As such, New South Wales would be faced with a unique legislative challenge, not just a political one.

For the reasons detailed above, the New South Wales Bar Association’s QC/ SC Committee ought to be applauded for advising the Bar Council of the inappropriateness of reintroducing the “QC” post-nominal. The perplexing and unnecessary return to this monarchic anachronism provides as much social utility as allowing a private school prefect to don a crown. Simply put, the average consumer of legal services will not care.

No wonder the QC/SC debate is just as trivial as a Star Wars pun.

The Brief | Volume 20, Edition 2

27

Like us.

Follow us.

Join us.

Write to us.

Macquarie University Student Publication

WHY SHOULD YOU JOIN GRAPESHOT? 1. It’s YOUR magazine.

2. You can write whatever you like.

3. You don’t even have to write! We love your photos, drawings and pieces of art too.

4. Awesome events and parties.

5. Great for resumes.

6. Free beer, maybe*.

We don’t care what you study.

If you’re an accountant/dancer/biographer who deos interpetive dances of Fermat’s Last Theorum, that’s just fantastic.

WE WANT TO HEAR FROM YOU. If you’re not sure what to write about, but you still want to participate, just stop by our office (in Student HQ). We can help edit your work brainstorm ideas.

If you need further details, check out grapeshotmq.com.au, or email us at

grapeshot@mq.edu.au 28

The Brief | Volume 20, Edition 2

*We’re working really hard on this. Keep checking our Facebook Page!

de rerum natura (“ON THE NATURE OF THINGS”) As law students we argue. As sure as the Cock shall crow at a molten-gold sunrise, so too shall the law student before long clear an over-used epiglottis and commence the oratory battle of our kind. Unfortunately, given the certainty that these arguments almost never occur during a tutorial between like-minded fellows, problems tend to arise. Much like the humble early-to-rise bird, we are inclined to annoy the other non-law species with our natural verbal inclinations.

It can be hard to appreciate that these non-arguers are just happy to be wrong without having the good sense of conceding to say so. Worse still, these wrong people sometimes insist that we could both be right? Sacrilege. In the final moment your non-law lover or friend, having delighted in hours of persuasive and patient argument, may respond with a final guttural shriek “Enough! You think too much like a lawyer!” (This is not meant as a compliment.)

Yes we do think like a lawyer. It is part of who we are. But, we are also sorry. Not really.

LAW STUDENTS

LIKE

by Luke Richards

‘GAP STUDENTS’ As I write these words, an Italian man attempts to use my left shoulder as a comforter to pass a solitary night aboard the midnight train. Meanwhile, the shoeless (but not sockless) Senegalese gentleman directly opposite, with whom I have been sharing the same knee space for the past 4 hours, has just been arrested for reasons unknown to me. Yes, this was the cheapest ticket out of town and the place where my two student worlds have uncomfortably converged.

The first world is that of the scholar; of books, argument and beer pong. The second is that of the 20-something adult student, a supposed proper person in society’s eyes, but without any money, progeny, or even a nice pair of jeans to prove it. As I continue to be jostled along in this increasingly foul smelling train compartment, the words of Lady Capulet recur to me “Here in Verona, ladies of esteem, Are already made mothers.” Whilst Juliet’s postmature circumstances are easily soothed by the assurance that both Paris and Romeo seek her love, we are not so fortunate. The fatiguing actuality remains that our degrees and studies are unfashionably long, and Romeo probably fancies someone younger with enough spare time to hang out of a balcony.

The wry consequences of these perpetual assignments and internships will naturally be poverty and, if you are really unlucky, the feared recurrent question from friends and family: “have you graduated yet?” Well no. We have not graduated yet. We are the ‘gap students’, the crack between the sofa students. Too old now for you to remember how happy you were when we got into law school, but still studying and thus too poor to become a proper person. It’s frustrating, but we like where we are. One day, perhaps soon, we shall graduate and have a real job where the expression pecunia non olet (money does not smell) shall be the moralistic illustration of choice over expensive scotch. Until then I need to offer this Italian fellow some gum, because it really is getting smelly in here.

The Brief | Volume 20, Edition 2

29

CROSSWORD

by Connor Hogg

ACROSS

DOWN

4. Mandatory retirement age of High Court justices

1. Inspiration for the ABC’s Rake

5. A type of court in which the principles of law and justice are disregarded or deliberately perverted

2. Barry O’Farrell’s favourite landmark High Court torts case (8-1-7)

11. Doctrine that one can be incapable of wrong (4-7)

3. The most used model of negotiation named after an Ivy League School

12. The giving of sworn oral evidence out of court 13. Plaintiff whose High Court case concerned the right to a fair trial in Australia 15. NSW Landlord who claimed to shoot his tenant in self defence in this key criminal case 16. Making a false statement on oath 18. What does the LL stand for in LLB? 20. Music file sharing service taken to court by Metallica 21. Name of the youngest British Prime Minister aged only 24

6. Name of the cabin boy Dudley & Stephens claimed it was necessary to murder (7-6) 7. Coined the legal catchphrase ‘Litt up” 8. One of the requirements to be deemed equity’s darling (4-4) 9. Former High Court judge who recently led a year-long UN inquiry into human rights abuses in North Korea 10. Military themed legal drama whose spinoff NCIS became even more famous 11. Well renowned Master of the Rolls of the 20th Century 14. Popular form of situational crime prevention 17. Which Kardashian was OJ Simpson's defense attorney?

19. Recent US Supreme Court decision that reduced restrictions on campaign spending ____ v FEC

30

The Brief | Volume 20, Edition 2

SILVER SPONSORS

with thanks to

LAST WORDS...

ANYTHING BUT ORDINARY: THE NEW NON-TRADITIONAL PRACTICE (continued from page 7) may detract from time spent actually doing the work. Morgan Solomon, a director at BBV, says, “When you give a client a bill that’s based on time billing what you’re showing them is the labour pains when all they wanted to see was the baby.” New Model firms offer the baby, not the timesheet.

So, does this mean the end of the Old Model firm? Guettal says no. He says mergers and acquisitions will remain the domain of the big traditional firms.

Additionally, he says the traditional firms are an ideal training ground for lawyers.

The rise of New Model law firms does not

mean the extinction of Old Model firms, it simply means increased choice for both clients and job-seeking lawyers. The future may also see the development of a hybrid, unaccounted for in this article, during the halfway point as some Old Model firms choose to begin a process of evolving to be more like New Model firms. New Model firms mean we shouldn’t just think about what size fish we want to be in whatever sized pond we swim in, we should also think about what shape that pond should take and the plants it’s furnished with.

TWO ANNIVERSARIES AND A FUNERAL (continued from page 19) and blood since remote antiquity. The Balkans, over which an ethno-religious war

claimed the lives of 100,000 people, and in the mid-1990s, on a matter of whose god and race should rule. The Balkans, which the Greeks called Haemus Mons, the “blood-soaked mountains.” The Balkans: where a century ago a European slaughter first began with the death of a luckless princeling and his new wife by Serbian nationalists. It is the lurid spectre of Australia’s future should the debate about culture and about our identity as a society continue to remain silent.

So put away the endless talk of boats and asylum seekers for just 5 minutes. A new introspective debate about culture, and who we are and what we would like to become as a society is needed. As Aleksandr Solzhenitsyn once asked: “If you desire to change the world, where would you start? With yourself or with others?”

The Brief | Volume 20, Edition 2

31

WE ARE ALSO DIGITAL! Like ‘The Brief’ on Facebook and access the magazine anywhere.

32

The Brief | Volume 20, Edition 2