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CULTURAL IDENTITY | TPP | FINANCIAL AGREEMENTS | LEGAL HISTORY | COURT PRACTICE & PROCEDURE | CONFLICT OF INTEREST LAW INSTITUTE JOURNAL LAW INSTITUTE JOURNAL MARCH 2016 FROM FATHER THE CAINS & THE DPP | CULTURAL ADVICE FOR LAWYERS | TRANSLATING TRAUMA TO SON www.liv.asn.au/LIJ THE CAINS AND THE DPP RRP $20 CULTURAL ADVICE FOR LAWYERS TRANSLATING TRAUMA 90.03
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Contents March 2016 FROM FATHER TO SON In his new role as SPP, John Cain now leads the office founded by his father, the former Victorian premier. By Carolyn Ford page 13 Cultural diversity essential for survival To stay relevant in the modern world, the legal profession needs to reflect the cultural makeup of the community it serves. By Karin Derkley page 18 Crossing borders When doing business with clients from different cultures it is important to be aware of sensitivities and behiour which could offend. page 26 Serving the state: John Cain jnr with John Cain snr PHOTO: DID JOHNS MARCH 2016 LAW INSTITUTE JOURNAL 1
Contents March 2016 BRIEFS EVERY ISSUE 8 LCA urges legal aid action 3 Contributors 8 AG joins legal breakfast crowd 4 From the LIV 8 Refugee legal demand surges 6 Letters 9 Rule of law ‘not understood’ COURTS & PARLIAMENT 9 Lawyers recognised 52 High Court judgments 9 New look online LIJ 54 Federal Court judgments 10 Court on camera 56 Family Law judgments 58 Supreme Court judgments NEWS 60 Legislation update 61 Practice notes 61 Cash rate target DIRECTOR OF PUBLIC PROSECUTIONS 61 Penalty and fee units FEATURES 13 From father to son 61 Penalty interest rate REVIEWS In his new role as SPP, John Cain now leads the office founded by his father, the former 63 Online CULTURAL IDENTITY Victorian premier. By Carolyn Ford 64 Books 28 Cultural diversity in family law CULTURAL DIVERSITY 66 LIV Library The changing cultural face of Australia 16 Cultural diversity essential for survival PRACTICE creates fresh and ongoing challenges for family lawyers. By Sarah Bright To stay relevant in the modern world, the 68 Ethics legal profession needs to reflect the cultural 69 Ethics Committee rulings TRANS-PACIFIC PARTNERSHIP makeup of the community it serves. 70 LPLC 30 Legal services and the TPP By Karin Derkley 71 Victorian law reform The TPP will promote new market access COURT INTERPRETERS 72 Property opportunities for investors and for exporters 18 The trauma of translating 73 Pro bono of goods and services. It will impact legal The vital service court interpreters provide 74 Superannuation services and benefit lawyers and law firms. may also be harming them. By Carolyn Ford 75 Practice management By Andrew Godwin 76 Best practice IN-HOUSE LAWYERS 77 Technology FINANCIAL AGREEMENTS 20 A lawyer in the house 78 According to merit?/ 36 Non-English speaking clients Diversity Providing independent legal advice to a party As businesses recognise the value of hing CAREER to a proposed financial agreement in family lawyers in-house the sector continues to grow. By Karin Derkley law can be perilous, particularly where the 79 Flexibility client has limited or no proficiency in English. OPINION 80 Legal action By Victor Tse and Bonita Tsang 22 Challenge and opportunity 81 Mentoring Leveraging our Asia capable workforce can 82 7 habits of highly LEGAL HISTORY effective lawyers 40 What’s in a name? drive legal profession engagement with Asia. 83 Your career Many Hellenic Australian lawyers felt the WELCOME LIV need to anglicise their names to practise law. 23 Justice Mark Moshinsky By Justice Emilios Kyrou Justice Mark Moshinsky was welcomed to the 84 Advocacy Federal Court of Australia on 11 November 85 Council COURT PRACTICE & PROCEDURE 86 Costs 44 CLIP bears fruit 2015. CLASSIFIEDS The Supreme Court has been committed OBITUARY to improving its practices and delivering 24 John Albert Dawson 94 Crossword efficiencies. The Common Law Improvement CULTURAL ADVICE Project is a recent initiative. 26 Crossing borders LIVING LAW By Justice Jack Forrest When doing business with clients from 95 Beyond the law CONFLICT OF INTEREST different cultures it is important to be aware 97 Food/Wine/Coffee 48 A dog’s life of sensitivities and behiour which could 98 With all due respect The High Court decision in Isbester illustrates unintentionally offend. 99 Wellbeing how the High Court determines apprehended 100 Inside stories ILLUSTRATION: CAROLYN RIDSDALE bias by way of conflict of interest. By Andrew Felkel 2 LAW INSTITUTE JOURNAL MARCH 2016
Contributors LAW INSTITUTE JOURNAL SARAH BRIGHT editorial editorial committee Managing editor Tony Burke Carolyn Ford Gerry Bean Sarah Bright is senior policy lawyer 03 9607 9339 Carolyn Ford (family law) at the LIV, co-author [email protected] Geoff Gronow Melissa Macken www.liv.asn.au/lij of Lexis Nexis Practical Guidance Chris Molnar Sub-editor and production (Family Law) module (WA and editor Cameron Ross Mary Kerley Victoria) and principal solicitor at editorial policy Journalist Views expressed by Bright Family Lawyers, a family Karin Derkley contributors are not law practice exclusively for self- Sub-editor and proofreader necessarily en dorsed by the represented parties. page 28 Libby Brown Law Institute of Victoria Ltd. No responsibility is accepted Art director by the LIV, the editor or the Katherine Alexander printers for the accuracy of Editorial assistant inform ation contained in the Sophie Suelzle text and advertisements. Neither the LIV nor the LIJ in submissions any way endorses or takes Submissions for legal any responsibility whatsoever features, opinion pieces and for any material contained on other articles should go to external websites referred to [email protected] by the LIJ. advertising inquiries The LIJ is a peer reviewed Advertising and sponsorship publication. executive Small sums of money from Lisa Crowle the Copyright Agency Limited 03 9607 9337 (CAL) are periodically payable [email protected] to authors when works are www.liv.asn.au/lij copied by CAL licensees (including government Andrew Godwin Victor Tse Bonita Tsang subscription inquiries departments, tertiary Subscriptions coordinator institutions etc). Andrew Godwin is director Victor Tse is principal Bonita Tsang was formerly Sophie Suelzle As it is not financially viable of transactional law solicitor at Victor Tse & a legal assistant at Victor 03 9607 9350 for the LIJ to collect and distribute these royalties and associate director Associates. He is an LIV Tse & Associates. She [email protected] to individual authors, http://tinyurl.com/b9suvbr (Asian commercial law) accredited specialist graduated with a Juris contributors undertake to of the Asian Law Centre, in business law and a Doctor from Melbourne Annual subscription: become a member of CAL Melbourne Law School. candidate for a Masters in Law School in 2015 and Domestic: and receive any payments • Hard copy plus 1 online user directly (see copyright.com. page 32 Applied Family Law. page 36 holds a Bachelor of $192.50 (inc. GST) au) or they waive all claims Biomedicine (Neuroscience) • Hard copy plus 2-20 online to moneys payable by CAL from the University of users $550 (inc. GST) for works published in LIV publications. It is a condition Melbourne. She is now • Hard copy plus 101 – 200 online users $1100 (inc. GST) of submission of an article that pursuing a career in tax Overseas: contributors agree to either of law. page 36 • Hard copy plus 1 online user these options. AU$330 distribution The LIJ is printed by Southern Colour. This issue of the LIJ is cited as (2016) 90(03) LIJ. thank you to our ISSN 0023-9267 regular contributors PP 100007900 for march: © 2016 Law Institute of John Castello Victoria Ltd. Russell Cocks ABN 32 075 475 731. Gino Dal Pont Robert Glade-Wright Fabian Horton Professor Greg Reinhardt Justice Emilios Kyrou Justice Jack Forrest Andrew Felkel Dan Star Andrew Yuile September 2015: 12,392 Justice Emilios Kyrou is Justice Jack Forrest is Andrew Felkel is a barrister. a judge of the Victorian Principal Judge of the He practises predominantly law institute of victoria Court of Appeal and the Common Law Division in the areas of 470 Bourke Street, Melbourne 3000 Victorian patron of the of the Supreme Court of commercial, property and GPO Box 263, Melbourne 3001 Hellenic Australian Lawyers Victoria. page 44 administrative law and is DX 350 Melbourne Association. page 40 also the current Negligence 03 9607 9311 subtitle author for the Laws [email protected] of Australia. page 48 www.liv.asn.au @lij @livpresident @livyounglawyers blog liv.asn.au/livpresblog blog liv.asn.au/ younglawyersblog
From the LIV The good lawyer Pro bono work undertaken by lawyers is constant but often not recognised. In my years of practice I he been impressed time and again by lawyers countries to provide advice to those who giving generously of their time and ability to those who may otherwise would be without a voice or a means to not be able to afford their services. enforce rights or defend charges For most law practices with a direct client contact not a day would go • young lawyers who choose their employer on by without a client or potential client being given advice, without charge, the basis of opportunities for pro bono work as to their legal rights and obligations, or referral to the appropriate (here or abroad) agency to deal with their matter. • lawyers who work with agencies, or On almost any court day in the Magistrates’ Court (and increasingly directly, to protect human rights, stop child in the higher courts) a private practitioner – solicitor or barrister – will exploitation and the sex trade of women and be asked to provide free assistance to a party or witness in a criminal or children, advise refugees of their rights, or civil proceeding. become involved as mediators or counsellors Every night of the week, in some of the many community legal centres to resolve or prevent disputes. in Victoria, lawyers and law students are volunteering their time and Further still, one sees the generous work expertise to provide legal assistance to those that could not otherwise undertaken by lawyers in giving timely, free afford it. and extensive advice and assistance to the Every day, there will be numerous school or hospital boards, charities, victims of natural disasters. sporting associations, service clubs or disciplinary panels that are run It is good to know that on a daily basis, more fairly or efficiently because of the volunteered involvement of a in many ways, lawyers throughout Victoria lawyer. continue to provide necessary services in the This type of contribution from the profession is constant but not often finest tradition of the profession. n recognised. Beyond this I know of: Steven Sapountsis liv president [email protected] • lawyers who he volunteered a year or more to work in developing @livpresident blog liv.asn.au/livpresblog are making it easier for members to Our overall aim is that the website communicate directly with the LIV. is more user-friendly for members, To meet the ongoing demand for regardless of how you access it. access to information and support, And from this month the LIJ will be changes to the phone system he been ailable online as a flip book (see p9). designed to ensure greater personal We are also launching an Ask the contact and member exchange with Member campaign. The campaign an LIV staff member. Under the new will involve staff members engaging streamlined system, reception can see with LIV members face to face or by where staff are at all times and refer to calling. It is a part of an organisational UPGRADES an appropriate person if the initial staff change program at the LIV aimed at member is not ailable. The reduction fostering and building on a member- UNDERWAY in call answering time from 40 seconds centric culture as well as seeking to meaningfully engage with members (as to 10 seconds is due to a new call triaging LOOK OUT FOR CHANGES THAT service. well as lapsed and non-members). It is BETTER SUPPORT OUR MEMBERS. The new LIV website development proposed that this activity will support is progressing well and in the coming LIV member growth, retention and months you will begin to see changes. satisfaction targets. By the time you read this, you may As well as behind the scenes work to As always, you are welcome to call me he noticed improvements to improve nigation, the site upgrade will at any time. n the operations of the LIV. Our new make it easier for members to access Skype for Business-based phones from phones and tablets. Nerida Wallace liv ceo [email protected] 4 LAW INSTITUTE JOURNAL MARCH 2016
A LIST OF LEADING BARRISTER ADVOCATES ACROSS ALL JURISDICTIONS Dever’s List welcomes the following barristers to the Victorian Bar Nick Elias Owen Wolahan Sophie Mariole AREAS OF PRACTICE AREAS OF PRACTICE AREAS OF PRACTICE • Administrative Law • Administrative Law • Banking and Finance • Banking and Finance • Commercial • Bankruptcy and Insolvency • Commercial • Contract • Commercial Law • Conflict of Laws • Equity • Contract Law • Contract • Torts • Corporations/Company Law • Corporations Owen has a broad civil practice with a focus on • Employment/Industrial • Defamation and Media commercial and regulatory law. Owen is also • Equity/Trusts • Equity and Trusts interested in expanding his experience, such as trade • Family Law/De Facto • Personal Injuries practices, town planning, insurance, and testator • Securities • Professional Negligence family maintenance. Sophie practises in a broad range of commercial • Torts litigation matters involving banking and finance, • Trade Practices Prior to coming to the bar, Owen was a solicitor with bankruptcy, insolvency and securities. She also Nick practises in commercial, administrative and Herbert Smith Freehills, hing commenced articles accepts briefs in employment and industrial law as common law. there in 2008. Owen practised mainly in commercial well as family and de facto law. litigation, including class actions. In 2013, Owen Nick completed a JD at Melbourne University and in joined the Office of Crown Counsel in the Victorian Prior to joining the Bar Sophie worked for four years 2011 completed a BCL at the University of Oxford as Government where he worked primarily in statutory as a solicitor at Robertson Hyetts in Bendigo. Sophie a recipient of an Allan Myers Melbourne University law reform, working on legislation introduced by the was an Assistant Registrar at the Commercial Court Scholarship. Attorney-General. of the Supreme Court of Victoria working under the Before coming to the Bar, Nick was an associate to Owen has a Bachelor of Laws (first-class honours) supervision of Justice Hargre and Justice Judd. the Honourable Chief Justice Warren AC and to the from Monash University, and a Bachelor of Arts from Sophie was also an Associate to the Honourable Honourable Justice Osborn at the Supreme Court of the University of Melbourne. Justices Nahum Mushin, Her Excellency Governor Victoria. As an associate, Nick worked on a broad of Victoria Linda Dessau AM and the Honourable range of commercial, administrative and common Owen is reading with Stephen Parmenter and his Michael Watt at the Family Court of Australia. She law matters, predominately in the Court of Appeal. senior mentor is Philip Solomon QC. completed her legal traineeship at Maurice Blackburn Prior to this, Nick completed his graduate training at where she worked on personal injury disputes Herbert Smith Freehills and worked as a solicitor in involving workcover and transport accidents. the firm’s dispute resolution group. Sophie is reading with Robert Heath and her senior Nick is reading with Anthony Strahan and his senior mentor is Stewart Anderson QC. mentor is Michael Wheelahan QC. No matter what the brief, we are able to assist with advice as to the best fit, fees and ailability. www.deverslist.com.au Telephone: 03 9225 7999 Email: [email protected] Fax: 03 9225 7728
Letters CULTURAL IDENTITY | TPP | FINANCIAL AGREEMENTS | LEGAL HISTORY | COURT PRACTICE & PROCEDURE | CONFLICT OF INTEREST LAW INSTITUTE JOURNAL LAW INSTITUTE JOURNAL MARCH 2016 Unsolicited THE CAINS & THE DPP | CULTURAL ADVICE FOR LAWYERS | TRANSLATING TRAUMA www.liv.asn.au/LIJ FROM FATHER TO SON THE CAINS AND THE DPP RRP $20 CULTURAL ADVICE FOR LAWYERS TRANSLATING TRAUMA 90.03 Why gender imbalance (presumably most of them women) and commitment, the exists reported discrimination due to family LETTERS extent of the problem and carer responsibilities. These TO THE EDITOR should be empirically Kate Jenkins, in her article “Briefing lawyers were no doubt passed over verified before we Targets Set” (Jan/Feb 2016 LIJ), said in four of those without family Email: [email protected] intrude into the of the 4000 people responding to an or carer responsibilities, who were Fax: 9607 9451 allocation of legal work. online survey exploring women in therefore able and willing to give Mail: Law Institute I should say that I the law “a quarter said they were more attention to their careers. And Journal managing editor brief women barristers, discriminated against due to family or this is how it should be. In 2016, we Carolyn Ford, GPO Box 263, and I will continue to carer responsibilities”. Ms Jenkins also can safely assume that no one is Melbourne 3001; or do so for as long as claims that women lawyers continue forcing women lawyers to take on DX 350 Melbourne. they continue to do to face “hurdles . . . in the form of family responsibilities, rather, they We reserve the right to edit a good job. But their lower paying, less prestigious jobs and choose to do so because they want to letters and to republish gender has nothing to fewer opportunities for promotion,” (and there is nothing wrong with this). them in their original or do with my decision to and that “the low numbers of women But the consequence is that women edited form on the internet brief them. If the legal in commercial legal practice should who he families to raise end up or in other media. Letters profession decides must include a phone be of concern to us all”. In response to giving less attention and focus to number and address for to adopt widespread Ms Jenkins’ point that firms that he their careers, which means the men authentication. equitable briefing not signed up for a gender equitable are left to get better as lawyers, and targets, it would be briefing target should be asked why are advantaged to go on to receive the very definition of not, I can think of a couple of reasons. higher pay and win more prestigious sexism and an insult to First, although the gender jobs. This is no one’s fault and in a Survey results are a the intelligence of the imbalance in the law is widely competitive and complicated legal notoriously unreliable law. n acknowledged, the more important system, it would be detrimental to the basis for making policy Nicholas Dies, matter to acknowledge is why the law were it otherwise. decisions. If it really Dies Watson Lawyers imbalance exists. Law is a demanding Second, calls for equitable briefing is the case that men and competitive profession, so we targets seem to be based not on are paid and promoted should not be concerned that 25 the results of quality research, more than women of per cent of the survey respondents but on unverified survey results. equal skill, experience t tweets Q: Should you he the right to decide Looking for a new coffee or lunch what happens to your body after you spot in the CBD? @TheLIJ has die? #law #Auslaw #legal RT @theLIJ launched a wine, coffee & food @Djobling reviews section http://ow.ly/XM8xu @LIVPresident Broken aspects of the profession affect society and justice, as well as lawyers Weekend read ‘Disruption, #Innovation themselves #auslaw #depression and Change: The Future of the #Legal Profession’ via @theLIJ @CritTorrent @RWS_01 6 LAW INSTITUTE JOURNAL MARCH 2016
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briefs LCA URGES LEGAL AID ACTION ASYLUM SEEKERS The Law Council of Australia (LCA) has agencies without any legal assistance or REFUGEE LEGAL urged federal parliamentarians to “take a representation at all. stand” and end the legal aid crisis in 2016. “The consequence of federal DEMAND SURGES The LCA said the crisis is a direct government neglect is often catastrophic consequence of long-term funding for the lives and livelihoods of those Asylum seeker legal assistance providers neglect and indiscriminate cuts by the individuals and their families. are swamped with requests for help and federal government. It has impacted “This is despite successive government urgently need hundreds more volunteer severely on many Australians. and publicly funded inquiries lawyers to help. More than 11,000 Victorians were recommending substantial increases in Surging demand for legal assistance with denied legal aid by cutbacks in the past federal government funding, including by complex visa applications from asylum five years, said LCA president Stuart Clark. the government’s chief economic policy seekers combined with an 83 per cent cut “The picture is very similar across advisory bodies. These calls he gone in government funding in the sector has the country. The plight of those people unanswered and the consequences for all created a legal crisis. denied legal aid is a direct result of Asylum seekers he 28 days to lodge a hundreds of millions of dollars in cuts by Australians are manifold. primary application for asylum in Australia successive federal governments. “The Law Council has called on all after receiving notification from the “Over the last 20 years, successive federal parliamentarians to demand an Department of Immigration to do so. They federal governments he cut the end to the federal funding neglect in 2016. must answer 184 questions in English. commonwealth’s share of legal aid from “It is time to take a stand. The federal Director of Refugee Law Did Manne 50 per cent to just 35 per cent, forcing government must restore its funding to said hundreds of new people come to the increasing numbers of people to defend 50 per cent of total funding to legal aid centre for help weekly. The centre formerly themselves in court against well-armed and substantially increase funding to all received funding to help asylum seekers prosecution teams. legal assistance bodies. with legal assistance, but is now relying on “Meanwhile, individuals must battle “In 2016, the legal profession is united the efforts of its volunteer lawyers to meet well-resourced corporate opponents, in calling for immediate federal funding the need. abusive former partners and government priority for legal assistance services.” Refugee Law helps around 8000 people a year. It needs to at least double the number AG JOINS LEGAL BREAKFAST CROWD of volunteer lawyers and migration agents from 200 to 400. The centre is looking for lawyers with migration law qualifications, Uniform Law is controversial but the legal profession. The women barrister briefing or practising lawyers prepared to undertake profession will benefit once its teething report, released every year until 2011, a short course as a registered migration problems are sorted out, the Victorian would be reinstated. And firms appointed agent and training in dealing with clients. Attorney-General Martin Pakula told the to the new government legal services At the Asylum Seeker Resource Centre Legal Laneway breakfast crowd in panel will need to report on their (ASRC), principal solicitor with the Human February. briefing of female barristers to Rights Law Program, Melinda Jackson, said Hardware Lane in comply with the Victorian the number of asylum seekers coming in the CBD was a sea of Bar’s equal opportunity for help with visa applications had almost umbrellas for the briefing policy. quadrupled in recent months. “We’ve been second year in a row The recent totally overwhelmed with the demand,” Ms at the event, which is appointments of Andrea Jackson said, adding there is a four month hosted by the Victoria Tsalamandris to the waiting list for applicants at the ASRC. Law Foundation to County Court, Sara The ASRC is looking for law students celebrate the start of the Hinchey as State Coroner, and practising lawyers who are prepared legal year. and Amanda Chambers as to undertake training to help applicants Mr Pakula said 2015 had president of the Children’s fill out complex applications. The next seen great strides in law Looking ahead: Victorian Court were in line with the information night for ASRC volunteers is reform – introducing new Attorney-General Martin Pakula government’s commitment early April. bail laws to take children to hing women make up The rewards of volunteering to work with out of remand, repealing move-on laws, 50 per cent of future appointments to the asylum seekers are many, Ms Jackson said. and formalising the role of the Victims of Bench, Mr Pakula said. The appointments “You’re learning interviewing skills and Crime Commissioner as an independent brought to the judiciary “women of dealing directly with someone’s human advocate. extraordinary qualities who will make an story, and you’re dealing with issues of Looking ahead to 2016, Mr Pakula enormous contribution to the courts they rights and freedom. People say it makes reiterated the state government’s are appointed to”, he said. them better lawyers.” commitment to diversity in the legal See Court on Camera p10. n 8 LAW INSTITUTE JOURNAL MARCH 2016
briefs t BRIEFLY OPENING OF THE LEGAL YEAR RULE OF LAW ‘NOT UNDERSTOOD’ Courts four prison with CCOs A report by the Sentencing Advisory Australian Human Rights Commission border force officers were to stop and Council shows Victoria’s courts are president Professor Gillian Triggs believes question Melburnians to establish their visa increasingly adding community correction orders to prison sentences rather than the rule of law is a concept understood status. For most Australians the rule of law setting a non-parole period. The report by few Australians, leading to executive is abstract and hard to grasp.” “Parole and Sentencing” examines over-reach. “I suggest that our failure as a community changes in the setting of non-parole Professor Triggs was speaking at the to understand what the rule of law means in periods by Victorian courts over the community Opening of the Legal Year at practical terms has allowed governments to five years ending 30 June 2015. The the County Court on 1 February organised assume unprecedented powers of executive report reveals a decline in the practice of setting non-parole periods as part of a by the International Commission of Jurists. discretion, to diminish and in some cases prison sentence in the higher courts (the More than 100 people attended the event remove the judicial power of review, and to Supreme and County Courts) and the which was supported by the LIV. fail to provide fair access to justice for the Magistrates’ Court. Speakers at the ninth community opening most vulnerable.” Child Protection Toolkit were Chief Justice of the Federal Court Professor Triggs said the legal issues Victorian law firm Moores and not-for- of Australia James Allsop, who spoke on of particular concern to the Commission profit hub Our Community he released society and the law, Professor Triggs, who a Child Protection Toolkit to help not-for- spoke on access to justice, and two Skyline are the disproportionate representation profit organisations and schools promote Foundation students Mukul Relan and of Indigenous people in prisons, the child safety and prevent institutionalised Melissa Claydon. The students from South administrative detention for years of those child abuse. The Child Protection Toolkit, which has a pro bono value of $75,000, Oakleigh Secondary College spoke on issues with cognitive disabilities, and limited has been released in the wake of new around the anti-immunisation lobby. judicial review for asylum seekers. Victorian legislation that came into effect “My evolving concern . . . is that while the At the event, the 2016 John Gibson Award on 1 January this year. phrase ‘the rule of law’ slips smoothly from was given to Victorian lawyer Guy Gilbert LCA welcomes national our lips, few in the community he a clear who has provided a remarkable amount of redress approach idea of what it means,” Professor Triggs said. pro bono work for asylum seekers. A solicitor The Law Council of Australia (LCA) has “In Victoria you he the Charter of since 1975 and a barrister since 1981, Mr welcomed the federal government’s Rights, and the community has a stronger Gilbert is a registered migration agent, and commitment to lead the development sense of the rule of law. It was the Victorian over 10 years was a part time member of the of a national approach to redress for survivors of institutional child sexual community that reacted so swiftly to the Mental Health Review Board and Refugee abuse. The LCA considers it vital that proposed Operation Fortitude under which Review Tribunal. urgent consideration be given to the development of a nationally consistent approach to redress. Survivors of child AUSTRALIA DAY HONOURS sexual abuse he already waited too NEW LOOK LAWYERS long for a national response to redress ONLINE LIJ RECOGNISED and there is still much to be done, the LCA said. What you see in hard copy is what LIV rejects baseline sentencing Victoria’s baseline sentencing legislation you will get online in future with the Twenty lawyers nationally were recognised for should be repealed and any moves Law Institute Journal. their service to the law in the 2016 Australia towards mandatory sentencing rejected, On 1 March, the LIJ is launching Day honours. according to the LIV. In its submission to the Sentencing Advisory Council review an online flip book with electronic The Victorian recipients are: of baseline sentencing, the LIV argued page turning. • Companion (AC) to the Order of Australia, that any issues of public confidence in the Members of the LIV and other Allan James Myers AO QC criminal justice system are best remedied subscribers will be able to read the • Officer (AO) award, Dr Michael Charles through education rather than mandatory version of the LIJ they get in hard Pryles AM sentencing. copy, online. Readers will still be • Member (AM) award for significant service LIV logo restricted able to search for archived LIJ legal to the law, former Supreme Court judge, Following a member’s concern that the features and we will continue to the Hon John Batt, VCAT deputy president LIV logo was seen on the website of an affiliated member, the LIV was able to provide links to the current edition’s Genevieve Nihill, and Ian Pyman. discuss the issue and the logo was later articles and columns. From NSW, Federal Circuit Court Chief Judge removed. Members should be aware that The flip book is the latest John Pascoe was awarded AC; the former logo use is restricted to full practising development in the evolution of the Sex Discrimination Commissioner Elizabeth members. Affiliates should contact the LIV’s flagship publication, which was Broderick received an AO, and former LCA LIV if they want assistance in representing redesigned in July 2015. president Joseph Catanzariti was given an AM themselves as affiliated members and the LIV will find ways to help. for significant service to the law. n MARCH 2016 LAW INSTITUTE JOURNAL 9
briefs Court on camera DID JOHNS DID JOHNS 1 2 3 4 Community Opening of Legal leaders sell the Legal Year 2016 The Big Issue 1 Australian Human Rights 6 Vendor Craig and Allens chief Commission president financial officer and chief Professor Gillian Triggs. operating officer Rod Fielding selling The Big Issue as a part 2 Professor Triggs, Federal of International Vendor Week. Court Chief Justice James Allsop, Skyline Foundation student Melissa Claydon, Federal Court Justice Mordecai Bromberg and Skyline Foundation student Mukul Relan. Legal laneway breakfast 3 Judge’s associate Callum 5 Dawlings and Amy Johnstone from Maurice Blackburn tucking in. 4 Supreme Court Chief Justice Marilyn Warren and Judicial College of Victoria program manager Cassie Carter. 5 Attorney-General Martin Pakula, LIV council member and partner of Holding Redlich Michael Lombard and Senior Crown Prosecutor Brendan Kissane. 6 10 LAW INSTITUTE JOURNAL MARCH 2016
your career In-house Counsel Conference THURSDAY 10 MARCH, 8.50AM–2.15PM | LIV LECTURE THEATRE EP EP SL The LIV is pleased to hold our first In-House The In-House Counsel Conference will Counsel Conference in 2016. Developed by equip you with a comprehensive toolkit CPD UNITS: 4 SL PS EP expert in-house counsel legal practitioners to manage the most pertinent issues you WHEN PS PM SL using peer-based learning techniques, this face in practice, helping you align the Thursday 10 March, 8.50am–2.15pm PS PM event will provide you with essential tools and need for compliance with the commercial WHERE PM information to help you excel as an in-house imperatives of your organisation. LIV Lecture Theatre practitioner. Session topics will include: PRICE (INC GST) Our panel of seasoned in-house counsel • How to Make Compliance Work for Your $399 Member lawyers and expert guest speakers will Organisation $520 Non-member investigate key developments and trends in • Essential Skills for In-House Counsel: Includes morning tea & lunch this area, helping you learn new skills and Negotiation and influence REGISTER BY practical knowledge. This is also a great Friday 2 March opportunity to network and share ideas, • Unfair Contracts and Terms: What do they REGISTRATION INQUIRIES challenges and strategies with others working mean for your business? T: 9607 9473 in in-house roles. • Managing Conflicts of Interest Ethically E: [email protected] SUITABLE FOR: LIV PD CONFERENCE SERIES SPONSOR NEW NEW NEW STUDENTE STUDENT GRADUATESTUDENT GRADUAT PRACTISINGGRADUATE PRACTISING PRACTISINGAFFILIATE AFFILIATE AFFILIATE SOLICITOR SOLICITOR SOLICITOR
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news DIRECTOR OF PUBLIC PROSECUTIONS | DIVERSITY | INTERPRETERS | IN-HOUSE LAWYERS | OPINION | WELCOME | OBITUARY | CULTURAL ADVICE Family affair: Solicitor for Public Prosecutions John Cain jnr and former premier John Cain snr FROM FATHER TO SON In his new role as SPP, John Cain now leads the office founded by his father, the former Victorian premier. by carolyn ford If John Cain jnr ever needs a refresher on the mission of the Director of Public Prosecutions, he need go no further than the walls of his new office. There, behind framed glass, is an Age article from 17 December 1982, “How the DPP will work”. “The whole raison d’etre for a DPP is precisely to cast the office in a more independent role. Important cases do arise which often require more independent examination than is always possible under the present system.” The article is instructional but it also doubles as paternal advice because it was authored by his father, the former (1982-1990) Victorian Premier and Attorney-General, John Cain, who established the position of DPP more than three decades ago. “The framed article was given to me in my first week at the OPP by Bruce Gardner who has been here for a long time and has an interest in the history of the office. He thought it might be an interesting memento for me,” Mr Cain jnr said. PHOTO: DID JOHNS MARCH 2016 LAW INSTITUTE JOURNAL 13
news Director of Public Prosecutions Crossing paths: John Cain jnr, John Cain snr and John Champion SC. When the 56-year-old legal executive, latterly Victoria’s first DPP John Haber Phillips QC of Thomson Geer, began as Solicitor for Public reported in 1983 that the Cain government wanted Prosecutions (SPP) in November 2015, replacing to create a more efficient system and remove the Craig Hyland, the Cain family came full circle in its criminal prosecution process from the political involvement with the DPP. arena. “It had to be done”, said Mr Cain snr of the In a joint interview with the LIJ, the Cains spoke founding of the office of the DPP, to ensure the of the circumstances in which the son’s career as integrity of public prosecutions. a lawyer has dovetailed the father’s career as a “It wasn’t something dreamt up in Australia, it is politician. based on the UK model. I went over there in 1978, Until 1982, prosecutions for indictable offences spent a bit of time seeing how it all worked. in Victoria were handled by the Criminal Law “I was shadow Attorney-General and I got into Branch – 20 staff, none legally qualified, and all the Office of the Home Secretary and spent some men due to the “unsoury” material – of the days there going through it all. It goes back to the Crown Solicitor’s Office which prepared cases early 1900s. So I brought back the model and took it to the party room. The Cain government wanted to “Even before we came to government, it [the create a more efficient system and criminal prosecution process] was crying out for some sort of attention. remove the criminal prosecution handle sensitive issues. The politicians were “It was all mixed up and not the best way to process from the politcal arena. always going to be accused of playing fourites, or not proceeding with a prosecution when they should. The independence of the DPP, which we and briefed Crown Prosecutors. All prosecutions entrenched by giving him the same status as a were instituted in the name of the Attorney- Supreme Court judge, made sense. That’s how it all General, who could refuse consent to particular began. It just seemed to me that that was right. It prosecutions. was difficult to achieve . . . it had to be done. Prosecutorial discretion was based primarily “It was one of a smorgasbord of reforms but on sufficient evidence to justify a trial or raise it provided the independence and integrity of probable presumption of guilt. No consideration the office that was important. I suppose the best was given to cost or public interest. Trials were testimony is that it was picked up in every other completed quickly and appeals were rare. state and territory quite rapidly. So its integrity The Director of Public Prosecutions Act 1982 was and utility and the model we had here was copied. given Royal Assent on 21 December 1982. Others saw it as being the way to go. That’s the 14 LAW INSTITUTE JOURNAL MARCH 2016 PHOTOS: DID JOHNS
news Director of Public Prosecutions best recommendation in the long term,” said Mr Cain snr, 84. The 25 year history of the DPP in Victoria, The Pursuit of Justice, notes that while the nature and scale of prosecuting in Victoria has changed, the fundamental principle behind the role of the DPP remains the same as in 1982 – that the conduct of prosecutions should be independent of the government of the day. “Twenty-five years after Australia’s first DPP was appointed, this principle remains the cornerstone of a sound system of justice and a free, democratic society. It continues to be essential to maintaining the Victorian community’s trust in the fairness and integrity of a prosecution system that is free from political influence or external influence.” While his father was introducing ground- breaking law reform, 23-year-old John Cain jnr was doing articles at Maurice Blackburn. “I was aware of what was going on and how important it was. But it was just one of many reforms that the newly elected government introduced. Others included FOI and changes to workplace accident compensation and transport accidents. “I’m very proud of what my father achieved in public office as Premier,” Mr Cain jnr said, adding he does talk issues over with his like-minded father, including his thoughts on the role of SPP when he was approached about it last year. Mr Cain jnr was with Maurice Blackburn for 20 years. After working as a solicitor for four years, he was made a partner in 1987. He was managing partner from 1991 to 2002. Between 2002-2006 he was CEO of the LIV, then became Victorian Government Solicitor from 2006-2011. In 2011 he was appointed managing partner at Herbert Geer (now Thomson Geer). Mr Cain jnr is in 1972. Mr Cain jnr credits his time or alternatively when the Court of also chair of the Centre for Innovative Justice at running the lawyers’ membership Appeal makes decisions that challenge RMIT University and is on the boards of Victoria organisation with giving him the existing provisions, for example the University, the Legal Practitioners Liability skills to enable him to work in large recent baseline sentencing laws. Committee and the College of Law. organisations such as the OPP with We are making submissions to the As SPP, he now runs Victoria’s largest criminal public policy firmly on the agenda. “It Sentencing Advisory Council on that. law practice. “I started in the position in exposed me to public policy in a way Our view on those things is valued and mid-November and the last couple of months he that I hadn’t experienced before,” Mr sought after.” been getting to know the office. The impression I Cain jnr said, adding advocacy in the Added Mr Cain snr, “It’s become a he of the office after a relatively short time here form of submissions will continue to good resource for consideration of is that it has got a great many talented people who be a large part of the OPP’s work, as reforms and changes because of the are committed and dedicated to the work they do. dictated by the Act. experience it’s had.” “The challenges are to become more economic “As an independent office it [the Interview over, it’s time for photos and efficient, and to use technology to help us OPP] has certain expertise and so and we head to the office of the DPP achieve that,” said Mr Cain jnr, who has a staff of it’s well equipped to provide policy John Champion SC, who when he 350 including about 250 lawyers. support to government. Governments meets John Cain snr (for the first “I’m very proud of my son and the positions he seek it out, they want to know what time) says, “Here’s the man who has held in the legal profession,” Mr Cain snr said, the DPP’s view is. They want to know started it all.” acknowledging that both men had spent time in what people who operate extensively Even without his son running the small practices. Their careers had gone in different in this area he to say on important organisation, John Cain snr is well directions yet occasionally crossed paths. issues,” said Mr Cain jnr. remembered for his pivotal role in The other organisation the two lawyers he “On any significant issue of law improving Victoria’s and ultimately in common is the LIV. Mr Cain snr was president reform that the government has, Australia’s criminal justice system. n MARCH 2016 LAW INSTITUTE JOURNAL 15
news Cultural diversity Muslim Legal Network president Hellenic Australian Lawyers Association Asian Australian Lawyers Jazeer Nijamudeen president Andrew Panna QC Association president Reynah Tang CULTURAL DIVERSITY ESSENTIAL FOR SURVIVAL TO STAY RELEVANT IN THE MODERN WORLD, THE LEGAL PROFESSION NEEDS TO REFLECT THE CULTURAL MAKEUP OF THE COMMUNITY IT SERVES. BY KARIN DERKLEY If you’re of Muslim heritage, the biggest problem no Senior or Queen’s Counsel of Asian Cultural diversity – and the factors isn’t getting into law school or a graduate job in descent in Victoria. that undermine it – is still a relatively a law firm, according to Muslim Legal Network But barriers are encountered by new concept in the professional and president Jazeer Nijamudeen. “There seems to be a European lawyers of non-Anglo business world, let alone the legal fair process at that entry-level stage that is based origin as well. Lawyers from the profession. Race Discrimination on merit.” Hellenic community (those of Greek Commissioner Tim Soutphommasane It’s when you’re trying to move up in the firm or Cypriot heritage) for instance, are has spoken out about how cultural that you hit the ceiling, he said. “Whether or not it well-represented through much of stereotyping and assumptions is discrimination, senior lawyers he advised me the profession – but they hit a ceiling. can stymie opportunities for that there can be a competitive disadvantage to Despite some high profile judges like promotion of otherwise talented and career progression if you’re a practising and visible the Court of Appeal’s Justice Emilios high-performing candidates. Muslim.” It’s perhaps no surprise then that there Kyrou, the Supreme Court’s Associate Those unconscious biases are are very few Muslim law firm partners in the larger Justice John Efthim and Associate holding back Asian-Australians and law firms in Australia, and even fewer barristers. Justice Mary-Jane Ierodiaconou, there others of non-Anglo background That might be expected when you’re part of one are no judges of Hellenic background from positions of leadership, said of the more recent migrant groups to Australia. on the County Court bench, and only former and first LIV president of But it’s also the story for one of Australia’s oldest three in the state’s Magistrates Courts. Asian heritage Reynah Tang, now migrant groups – those of Asian heritage. “That was a bit of a surprise,” said the president of the Asian Australian Australians of Asian descent make up a high the Hellenic Australian Lawyers Lawyers Association (AALA). “The proportion of the ranks of law graduates – with Association president Andrew Panna Bamboo Ceiling is very real,” he said. estimates of around 30 per cent. But look further QC, who discovered the anomaly after “Asian-Australians are perceived up the line – to the senior associate and partner initially being gratified at the number as too respectful to authority for levels in law firms, or to the lists of SCs and QCs or of lawyers of Hellenic heritage in all instance, which is presumed won’t get judges – and they are conspicuous by their absence. other areas of the legal profession. you far in leadership positions, and As with women who make up more than 60 per Indeed, what we see on the bench certainly not to the Bar.” Given that the cent of law school graduates, Asian-Australians are and in the lists of senior counsel and Bar is the most common source for hugely under-represented in the upper reaches of the partners of law firms are a long line of the judiciary, that goes some way to legal profession. They make up just over 3 per cent Anglo-Celtic names interspersed with explaining why there are so few Asians of partners in law firms, 1.6 per cent of barristers, the occasional more exotic name that on the bench across all jurisdictions. and less than 1 per cent of the judiciary. There are jumps out simply because of its rarity. One law firm that had otherwise 16 LAW INSTITUTE JOURNAL MARCH 2016
news Cultural diversity Baker & McKenzie partner Tarwirri president LIV president Steven Anne-Marie Allgrove Kareena Gay Sapountsis made large strides in ensuring the diversity Indigenous young people to envision from the same background, you’re of its workplace in terms of gender and LGBTI themselves as working in the law, not going to he the diversity of representation was surprised to realise it had rather than being its target, is the first thought that we need to prosper in inadvertently fallen behind when it came to challenge. the modern world.” cultural diversity. Baker & McKenzie partner The president of Tarwirri, the In fact, supporting cultural Anne-Marie Allgrove said she had her attention Indigenous Law Students and diversity is essential for the survival drawn to the cultural homogeneity of its higher Lawyers Association of Victoria, of law firms in a new legal market, ranks by one of its associates, Tuan Nguyen. Kareena Gay said, “For a lot of insisted Ms Allgrove. “With the “We were getting plenty of law graduates and Indigenous students, law doesn’t changes in the nature of the law summer clerks from a wide range of cultural seem to be a feasible option. and the delivery of legal services, backgrounds, but we realised that in terms of “Remember, there he only more and more it’s about operating our partnership numbers, their numbers were been two or three generations of collaboratively and going to the very small. So we started to look at the question Indigenous kids who he even been market as one, rather than as of why people weren’t progressing through,” Ms allowed an education – and as a individuals – so we need to embrace Allgrove said. What the firm realised was that the result studying law at university may diversity in order to come up with partners tended to four people like themselves seem an unattainable path.” new ideas and new ways of working.” for leadership positions. “Traditionally, law firms To combat this, Tarwirri is focusing Raising awareness of the issue and he been the stronghold of white males, and that its energies on engaging Indigenous learning to recognise unconscious creates a certain atmosphere and a certain way students from the very early years of bias is the all-important first step of operating that fours people who are part of secondary school to see themselves towards addressing the cultural those networks.” as potential lawyers. It is also diversity issue. The LIV is a signatory You can’t underestimate the importance of providing support for those at law to the Law Council of Australia’s relationship capital in terms of getting promoted, school and working with law firms Diversity Policy, which commits to Mr Tang said. “There is a group of people who make and the Bar to assist Indigenous employing the best people to do the the decisions as to whether you make the cut, and law graduates into employment, best job regardless of culture, among that paradigm says that just one cultural type fits.” and support them through the other attributes. But given the human That cultural dominance hampers those outside all-important first years of practice. tendency to want to work with that circle both because they tend to be overlooked It’s not about lowering standards like-minded people, LIV president by decision-makers for progression, but also to get Indigenous people into the Steven Sapountsis said that specific because potential leaders are deterred by the lack legal profession, Ms Gay said. “There training and policies may be needed of role models further up the line, Ms Allgrove said. are many talented Indigenous law to ensure that recruiters look at For Muslims, that exclusion from the traditional students out there, but it’s about candidates from diverse cultures. old-boy networks is often exacerbated by cultural recognising that there are systemic Mentorship and other support barriers. When so much networking is conducted and structural barriers for Indigenous programs are other important over a beer or glass of red, non-alcohol drinking people. It’s about putting in place measures for those who he the Muslims can find themselves frozen out, Mr measures to address and overcome talent but may need encouragement Nijamudeen said. “A lot of Muslims will still go out these barriers so they can realise to overcome cultural obstacles in and he a Coke or something, but not sharing in their full potential.” their legal career, Mr Sapountsis that social activity of drinking creates a barrier that Lack of cultural diversity is a said. “You can’t underestimate some find hard to overcome.” concern for the whole community, the importance of role models in For Indigenous lawyers, the ladder can be even Mr Tang said. “It’s about diversity of encouraging people to progress in steeper than for migrant communities. Just getting thought – if you’re all going to come their career.” n MARCH 2016 LAW INSTITUTE JOURNAL 17
news Court interpreters THE TRAUMA OF TRANSLATING THE VITAL SERVICE COURT INTERPRETERS PROVIDE MAY ALSO BE HARMING THEM. CAROLYN FORD REPORTS. “I stepped out of the police station after a long session of interpreting for a murder suspect who was still covered in the victim’s blood. The police officers may well go for a counselling session. Where do I go? I still he to go home and join the family dinner as if nothing has happened.” PROFESSIONAL INTERPRETER Court interpreters are storytellers but the t or confidential debriefing to help deal with it. stories are often tales of madness and To the extent counselling is provided, it is not mayhem. KEY FINDINGS: promoted or widely used, according to the survey Details of rape, murder, abuse and physical • interpreters confront report, Vicarious Trauma Among Interpreters. torture – the latter often associated with traumatic material 1-10 There are about 800 accredited interpreters asylum seekers – are leing many of these hours weekly in Victoria, speaking 112 languages, although linguistic go-betweens suffering vicarious • four out of five there are some 300 languages spoken in Australia trauma (VT), a condition described as the interpreters feel including Indigenous languages. There were “emotional residue of exposure . . . from distressed after 271 respondents to the online survey, with 54 working with people as they are hearing their translating traumatic languages represented. trauma stories and become witnesses to the material Coping strategies include oidance of certain pain, fear and terror that trauma survivors • torture, murder, rape, interpreting assignments, denial and negative he endured”. child abuse, loss, illness, emotions. violence, sadness and Recently, academics from RMIT University’s isolation are common The findings paint an “alarming” picture of a School of Global, Urban and Social Studies traumatic topics workforce that is exposed to the horrifying aspects surveyed interpreters in Victoria, including • no alleviation of the of human suffering – violence, death, rape and those working in the criminal justice system impact has been torture – and these professionals are profoundly which relies on translators to give voice to detected over time affected by the experience, said the survey report victims, witnesses and accused who speak • interpreters’ beliefs authors Miranda Lai, Georgina Heydon and Sedat little or no English. They play a pivotal role about safety and trust Mulayim. in affording individuals from culturally and may be affected “The findings indicate VT is a pressing issue for linguistically diverse backgrounds procedural • VT may reduce Australian public service interpreters, who feel it is fairness. perceived quality of affecting them personally and professionally,” the interpreting, affecting In the year to March 2015, there were 300 accuracy, fluency or report said. interpreters used in cases before the Federal completeness Ms Lai, who trains interpreters at RMIT where Court and the Federal Circuit Court, and • 21 per cent of VT is on the agenda, said she had heard “umpteen 11,000 hearings involving interpreters in 98 interpreters felt their anecdotes” about VT by interpreters. They told her languages before the Refugee Review Tribunal response to VT had “I can’t eat or sleep, it distresses me so much”. and the Migration Review Tribunal. In 2014-15, a negative impact on “Judges and child welfare workers know what the Office of Public Prosecutions had 1300 the quality of their they are getting into, but interpreters don’t know interpreter bookings covering 49 languages. interpreting until the assignment what they might hear. You go The survey found VT experienced by • 70 per cent of to the police station and interpret about incest. The interpreters indicated interpreters is profound, with four in five they had no support. next one might be maternal health.” interpreters reporting distress following The traumatic material is on top of what is SOURCE: exposure to traumatic client material, VICARIOUS TRAUMA already an inherently stressful occupation and affecting them personally and professionally. AMONG INTERPRETERS its presence can negatively affect the quality of Further, there is negligible specialist training interpreting, said the survey report. 18 LAW INSTITUTE JOURNAL MARCH 2016
news Court interpreters “Interpreting requires an intense level of “I felt physically sick when I interpreted for an incest cognitive function . . . demanding maximum cognitive processing capacity to maintain accuracy case in a police interview.” PROFESSIONAL INTERPRETER and conversational flow. Any additional load caused by cognitive shifts [anger, guilt, fear, grief, programs he an indispensable to be well-trained, skilful and shame, irritability, intensity] will divert the brain’s duty and provide an excellent bre” to be a court interpreter, finite resources away from the task of rendering opportunity to equip interpreting and urged an overhaul of the one language comprehensibly into another and students with awareness of the process involving all stakeholders. cause a decrease in the interpreting performance, possible acquisition of VT and OnCall provided counselling either in accuracy, fluency or completeness,” said positive coping strategies. opportunities but it was never the report. “The issue must be addressed. taken up, he said. The report said VT was largely a “foreign Interpreter training education “We cannot deny the notion” among interpreter educators. There was must prepare student interpreters side-effects interpreters face as no mention of it, much less self-care or coping for the disturbing nature of a result of working in the justice strategies, in public service training. situations they may be called to system. It is a lonely profession. A stocktake of training, support, supervision and interpret and the possibility of VT, They may require more training debriefing is crucial for interpreters by educators, and equip them with information in order to cope in this complex providers and users, said Ms Lai, who called for about where and from whom to environment. The demands are courts to take an interest in the issue. “All the other seek assistance.” huge on these people – it is very players in a courtroom belong to a system but OnCall Interpreters and worrying. There has been a huge interpreters don’t. If an interpreter is traumatised, Translators, with 4500 interpreters exodus of interpreters over the where does she turn? on staff, is one of Australia’s years, which reflects in part the “It is paramount that interpreters be properly largest providers. Executive stress and remuneration. It needs prepared during interpreter education programs director of marketing and client to be discussed at a high level in via training or through mentoring. Training services Ari Pappas said “you he the courts.” n MARCH 2016 LAW INSTITUTE JOURNAL 19
news In-house lawyers A LAWYER IN THE HOUSE AS BUSINESSES RECOGNISE THE VALUE OF HING LAWYERS IN-HOUSE THE SECTOR CONTINUES TO GROW. BY KARIN DERKLEY As a junior lawyer Julie Galligan was focused, t like so many juniors, on a career in a law firm. JULIE GALLIGAN But after a few years working in private practice, GENERAL COUNSEL AND COMPANY SECRETARY, TRANSURBAN her ambitions were turned 180 degrees when she encountered the world of in-house counsel Julie Galligan worked in the corporate team at Minter Ellison for three while working at a London law firm. “I was years until she moved to London in 2004 to work at SJ Berwin (now King drawn to the idea of working for a business and & Wood Mallesons). There, her exposure to in-house counsel attracted seeing transactions through to their delivery and her to the idea of working for a business. After two years with Associated implementation,” Ms Galligan said. British Ports she joined Transurban in 2008 as senior counsel. At Working in-house for a couple of years at Transurban, where she is now company secretary, she is proud of building Associated British Ports, which owned and a great legal team that works with the business to achieve its objectives operated 21 ports around the UK, ge Ms Galligan “in the right way, within the parameters and constraints that exist”. She great exposure to the broad range of operational said one of the challenges is “trying to predict what legal issues are matters in-house lawyers deal with, she said. That ‘coming at us’ in the short to medium term, and ensuring we are prepared experience laid the ground for her career with to address those potential issues and opportunities”. In so doing, she said, Transurban in Australia, where she has progressed in-house lawyers become trusted advisers, with commercial colleagues from senior counsel to general counsel and seeking out their input, advice and guidance early in the process, providing company secretary over the past seven years. a real opportunity to influence an outcome. “If somebody had told me when I started that I’d still be here, I wouldn’t he believed them,” Ms Galligan said. “But with in-house roles, and particularly here at Transurban, there’s been a lot financial advantage of hing those fazed by the billable hours culture of change, growth and opportunity.” lawyers in-house, rather than of law firms (see breakout). But In-house lawyers constitute around 30 per cent bringing them in for short periods others are drawn by the opportunity of the legal profession in Australia, at around of time from outside. According to to be part of a company’s culture 14,000 legal practitioners. Reflecting the growth in Ms Wong, for every $3-4 spent on and participate in its strategy the sector, member numbers of the peak body for external legal resources, only $1 and achievements in a way that in-house counsel in Australia, the ACC (Association needs to be spent on an equivalent is impossible from outside the of Corporate Counsel – formerly Australian in-house lawyer to do the work. organisation. Corporate Lawyers Association), he grown by The function of in-house legal BlueScope senior legal counsel a consistent 4 per cent per year for the past five teams has changed too, Ms Wong said. Reuben Did said one of the rewards years. “The role of the in-house counsel has of his role is working closely with ACC president Gillian Wong said much of the shifted from being the cost centre to those who make decisions about how growth is being driven by business’ increasing being a trusted adviser and a valued the business is run. “Seeing tangible appreciation of the need for in-house counsel. contributor to the business. You’re outcomes for matters that I’ve “Businesses are recognising that the business seeing more general counsel reporting worked on, such as additional sales landscape has become increasingly complex from directly to the CEO and hing a being generated after signing a large a legal and regulatory perspective, and they’re bigger say in the strategic direction of sales contract or the commissioning beginning to understand the value of hing an organisations.” of a new piece of equipment, is very educated legal resource employed by them who The greater flexibility offered by satisfying.” That close connection understands their business.” businesses employing in-house legal with decision-makers within the There’s also an increasing recognition of the teams is a drawcard for many lawyers business gives in-house counsel 20 LAW INSTITUTE JOURNAL MARCH 2016
news In-house lawyers t FLEXIBILITY A DRAWCARD One of the key drivers for many in-house counsel is a desire for a better work-life balance, including the scope for flexible work hours and the ability to work from home. Of those surveyed by Mahlab, 95 per cent cited flexibility as among the reasons they preferred working in-house rather than in private practice. It would seem this desire is borne out by the reality. A report by the Association of Corporate Counsel (ACC) found that 91 t per cent of in-house teams in Australia he provision for flexible working REUBEN DID arrangements – including working from SENIOR LEGAL COUNSEL, BLUESCOPE home and shorter working days. Reuben Did spent five years as an M&A lawyer in private practice There’s no doubt that flexibility is a major before moving in-house at BlueScope. ”The more I heard about being drawcard for women, particularly those an in-house counsel, the more it interested me – and when the right juggling careers with family life. That opportunity came along, I took it.” Mr Did said one of the rewards flexibility also seems to mean that the of his current role is working closely with the people who make track to the top is easier to trerse for decisions about how the business is run. “Being in regular contact women than in other sectors of the legal with the key decision-makers means that in-house counsel he profession. A Benchmarks and Leading context and background that outside firms don’t always he or can’t Practices Report conducted by ACC access as readily.” The better work-life balance that working in-house found that women represented 40 per can offer was an important drawcard, he said, “although late nights cent of the heads of legal in-house teams, and weekend work are not uncommon, and there are particularly compared to just 11 per cent of law firm busy patches when the balance is more work and less life”. partners, and 11 per cent of QCs. context and background that outside relationship with their employer and ethical values into effective company firms don’t always he, he said, the commitment to furthering their systems and processes”. allowing them to be involved in business objectives can sometimes Ms Wong believes that employers value making strategic decisions that drive muddy their role as gatekeepers and the ethical guidance that in-house lawyers positive commercial outcomes. advisers. bring to their role. “In-house lawyers are Many in-house counsel are As Human Rights Commissioner employed and valued for their business becoming so connected with Gillian Triggs has pointed out, under ethics and the impartiality that they bring,” the decision-making part of the the Legal Profession Uniform Law she said. “When an organisation employs organisation that they are becoming legal practitioners, wherever they an in-house lawyer they expect you to be part of the C-Suite, with important are based, are morally obliged to give the social conscience of the company, and input into longer term strategy. For their companies guidance as to the expect you to adhere to strong business the organisations within which they ethical and reputational risks of their ethics.” n work, in-house counsel build up a activities. level of corporate knowledge and The Law Council of Australia has commitment that can make them also recently declared that lawyers more effective as advisers than an – both in-house and external – play external lawyer could ever be. a core role in helping their business However, one potential challenge clients respect human rights. for in-house counsel is the possible In-house lawyers, LCA president conflict between their role as a lawyer Stuart Clark has said, “play a critical and as an employee, where the close role in embedding core corporate MARCH 2016 LAW INSTITUTE JOURNAL 21
news Opinion CHALLENGE AND OPPORTUNITY LEVERAGING OUR ASIA CAPABLE WORKFORCE CAN DRIVE LEGAL PROFESSION ENGAGEMENT WITH ASIA. “Australia is under-utilising the global speak or write an Asian competitive of the Asian diaspora language or who he in Australia, and lived and worked in advantage of Australian diaspora in Asia. And it would seem hing some Asia. Asian Australian that there is almost 8 lawyers – and those who REYNAH TANG per cent of the working 8 per cent of he lived and worked population that has its population in Asia – bring linguistic the “trifecta” of Asian born in skills, social networks culture, language and and cultural knowledge, Australia clearly has huge Asian ambitions, but Asia . . . it has been suggested that we come at it with a experience. which can enhance European mindset. However, where links between Australia Given that four of Australia’s top five trading Australia struggles is and Asia. They can partners are Asian countries, and seven out of reflecting this capability help clients to decipher Australia’s top 10 export markets are in Asia – in its leadership ranks. the nuances and accounting for some 66 per cent of Australia’s Few executives and complexities of doing total exports – there is an urgent need for “smart board members in business with countries engagement” with Asia to secure the future of Australia he spent in the region. Australian business. time in Asia, speak an Moreover, even if it Now, more than ever, leveraging Asia capability Asian language or are of was not the Asian century, is essential for law firms that want to help their Asian heritage. This almost certainly there is a real and strong business clients engage with Asia and benefit from the holds true for partners of law firms imperative for improving diversity growth in trade and investment that the Asian and at the Bar. generally and cultural diversity in century heralds. This is the challenge, and the Indeed, in 2015, the Asian particular. In a report published in opportunity. Australian Lawyers Association 2015, McKinsey & Co found that (AALA) embarked on research companies in the top quartile of What is Asia capability and where do we find it? into the levels of Asian Australian racial/ethnic diversity were 35 per Asia capability has been defined by the Diversity participation in the legal profession, cent more likely to he financial Council of Australia (DCA) as an individual’s including at partnership level and returns above their national industry ability to interact effectively in Asian countries at the Bar. Although based solely on median. McKinsey & Co points and cultures, and with people from Asian cultural publicly ailable information and to other research which suggests backgrounds, to achieve work goals. In developing therefore limited in scope, the results this is because culturally diverse its National Scorecard of Australia’s Workforce were nonetheless illuminating. organisations win the war for Asia capability, the DCA identified the following Australian law firms had only 3.1 talent, strengthen their customer Asia capability domains: cultural intelligence, per cent of partners with Asian orientation, increase employee Asian language proficiency, Asian cultural working backgrounds, while only 1.6 per cent satisfaction and, ultimately, improve knowledge, Asian social capital, Asian cultural of barristers were Asian Australians. their decision making. experience, Asian people management and It is apparent that Australia is It’s time to get on with it. Given multicultural identity. under-utilising the global competitive the current state of the legal market The report suggests that the level of Asia advantage that arises from hing in Australia – an era of low growth – capability in the Australian workforce is low with some 8 per cent of its population failure to act is not a prudent option. n only 10.8 per cent of workers hing excellent, born in Asia, compared with other and one in three workers hing no or little, Asia Anglophone countries such as the US capability. However, the good news is that the level (4 per cent) and the UK (2 per cent). Reynah Tang is president of the Asian Australian Lawyers Association. This article is based on a of Asia capability was substantially higher among Smart engagement requires presentation to the Victorian Bar and LIV Conference those workers with an Asian identity, who can read, making more use of the bridging role in October 2015. 22 LAW INSTITUTE JOURNAL MARCH 2016
news Welcome Justice Mark Moshinsky JUSTICE MARK MOSHINSKY WAS WELCOMED TO THE FEDERAL COURT OF AUSTRALIA ON 11 NOVEMBER 2015. AMONG THE SPEAKERS WAS LIV PRESIDENT-ELECT BELINDA WILSON. THIS IS AN EDITED VERSION OF HER SPEECH. I appear on behalf of the LIV and the solicitors pivotal, before Justice Warren for six and Bowden v The Northern Territory. of this state to congratulate your Honour Justice days in 2001, your Honour was briefed In the Northern Territory case, the Moshinsky on your appointment to this Court. alone. team was smaller – three counsel, Your Honour’s skills as an advocate were evident Your Honour was opposed to Myers four Ashurst solicitors, and solicitors early. In your second year at law school you and QC, Jopling QC and Hardingham QC from the Human Rights Law Centre. your partner won the senior mooting competition – briefed by Freehills here, and backed Your Honour met with and fully against all comers in open competition. up by Freshfields in London. engaged the whole team. Human Your Honour continued to excel as a student On about the fifth day, Myers QC Rights Law Centre executive director and, long before you were awarded the Supreme delivered the immortal line to the Hugh de Kretser recalls your Honour Court Prize, you were identified as in the very top effect of, “Some people should just moving your chair in one meeting so rank of Melbourne law students. know when to stop!” that you had eye-contact with every You were one of the first to experience the Your Honour didn’t stop. You did member of the team. Arthur Robinson & Hedderwicks strategy of prevail. You were the wall against the Your Honour ge that pro bono assigning each pampered summer clerk to a might of Lloyds. case the same attention you ge your particular partner and placing their desk in Solicitors and their clients sought for-fee work. the partner’s room. The 20-something-year-old your Honour out. Despite extensive other summer clerk may he found a month in Your Honour was a pleasure to commitments, including the Royal a partner’s room confronting, but so did the work with for solicitors – courteous, Commission on Family Violence, 40-something-year-old partner – to whom your respectful of the solicitor’s views, well your Honour always made yourself Honour’s intellect and outstanding ability were prepared and sound of advice. ailable to give clear and decisive immediately evident. Your Honour was a friend of the LIV guidance, settle submissions and keep You were articled to Andrew Guy. It’s now more and understood and appreciated the the case on track. than 20 years since your Honour was at Arthur role of solicitors. Your Honour has a record of Robinsons (now Allens). Since then, members of Your Honour acted for and against achievement at the highest level: in that firm he briefed you, strongly supporting you various government entities such as the practice, first as a solicitor, then at from the outset at the Bar. ACCC and ASIC – for the government the Bar for almost 20 years; in your From your earliest years at the Bar, your Honour regulator in one case; against it in service to the profession – rising in was briefed in very substantial matters. You’d been another. Your Honour was an exemplar a very short time to be Chairman at the Bar only a couple of years when you were of the objectivity, independence and of the Victorian Bar Council; and in briefed in The Commonwealth Bank and White. integrity this requires. what you he given back to the legal The real fight was against Lloyds and your Your Honour has a genius for academy as a lecturer in the early Honour was briefed to draw the third party notice managing large teams of lawyers in 1990s; and now as a senior fellow against The Society of Lloyds on behalf of Mr such a way that each individual feels teaching in the masters program at White. It was a massive case. From January 1998 that their contributions are valued, Melbourne Law School. to late 2004 when the matter settled in mediation, each is conscious of your Honour’s You he demonstrated a there were nine decisions by single judges of the interest in them as an individual and passionate commitment to the rule Victorian Supreme Court; two decisions of the all remark on your Honour’s sheer of law, access to justice, and to social Victorian Court of Appeal; and one decision of the stamina. justice and Aboriginal rights. High Court refusing lee. The story is the same in your On behalf of the LIV and the Your Honour was led at various times by Honour’s pro bono work for the solicitors of this state, I wish your Geoffrey Nettle QC, Julian Burnside QC and Charles Human Rights Law Centre in, for Honour joy in your appointment; and Scerri QC. example, Momcilovic and in the North long, satisfying and distinguished In the proceeding your instructor regards as Australian Aboriginal Justice Agency Ltd service as a judge of this Court. n MARCH 2016 LAW INSTITUTE JOURNAL 23
news Obituary John Albert Dawson 1928–2015 tennis table to ease the pressure of practice and presidency”. John was thrilled that his father, then aged 80, attended the annual general meeting to see his son become president. On assuming the office of president, John described his approach in the LIJ. “The profession provides a service to the community for which the community pays appropriately only as long as the profession provides the service required. The Institute’s function is to help members provide that service.” Former LIV president John Dawson died on 1 October His term as president had many challenges and issues to 2015, aged 87. deal with. After attending Dandenong High School, John Each month the president writes a column for the LIJ. completed his law course at the University of Melbourne Those written by John were thoughtful and challenging in 1952. He served his articles with Lawson Hughes & and reveal a lot about him. Co and joined his father’s practice in 1954. John and his He looked at the broader picture and the role of the brother Geoff became partners with their father in the legal profession in the community. practice F R E Dawson & Son. He wrote in April 1975: “The potentially conflicting 2016 John was first elected to the LIV Council in 1962. He functions of advancing the interests of the members and was treasurer from 1963 to 1965 and chairman of the playing our part in our developing society are resolved Committee of Management from 1965 to 1968. The by reference to the public interest. This is, of course, the Committee had the onerous and very responsible task of public interest as lawyers see it. It is never simply on the oversighting the regulation of solicitors’ trust accounts basis of lawyers’ self interest. I would expect that any and administering the guarantee fund established to people responsible for the profession would adopt this compensate clients who suffered a loss as a result of a philosophy.” solicitor’s defalcation. His words are as true today as they were then. John resigned from the Council in 1968 but was Through his service on the Council and as president, re-elected in 1970. He was treasurer and chairman of the John made an outstanding contribution to the legal Committee of Management in 1971-72 and chairman of profession, the community, the law and the administration the Council in 1973-74. He served as president of the LIV of justice for which we will always be grateful. Victoria’s most comprehensive source of information for lawyers in 1974-75. His contribution lives on in such areas as legal aid and John served on and chaired a number of the Council legal education. Over recent times he generously hosted and businesses wanting to connect with the legal profession. committees. lunches for past presidents at the Sage Club where old He had a particular interest in legal education and was friends gather, tell war stories and reflect how things are the LIV representative on the Council of Legal Education, different now from when they were president. • Updated listings of more than 3000 law firms. the Leo Cussen Institute and the University of Melbourne It was always a pleasure to be in John’s company. faculty of law. Farewell John, a much liked and respected member of • Barrister listings, LIV accredited specialists, Victorian mediators. He retired from the Council in 1976. It was noted in the the legal profession. n Law Institute Journal, “The father of five children retreats • Court and tribunal contacts, fees and sitting dates. to a family farm in the Western District or to the table This tribute was contributed by retired County Court judge, the Hon Did Jones. www.liv.asn.au/Bookshop 24 LAW INSTITUTE JOURNAL MARCH 2016
2016 Victoria’s most comprehensive source of information for lawyers and businesses wanting to connect with the legal profession. • Updated listings of more than 3000 law firms. • Barrister listings, LIV accredited specialists, Victorian mediators. • Court and tribunal contacts, fees and sitting dates. www.liv.asn.au/Bookshop
news Cultural advice CROSSING BORDERS WHEN DOING BUSINESS WITH CLIENTS FROM DIFFERENT CULTURES IT IS IMPORTANT TO BE AWARE OF SENSITIVITIES AND BEHIOUR WHICH COULD OFFEND. LAWYERS WITH EXPERIENCE DEALING WITH CLIENTS FROM CHINA, INDIA, JAPAN AND MUSLIM COUNTRIES HE CONTRIBUTED SOME TIPS. China enough business cards for everyone. Don’t indicate where they would like you to sit. forget it is best to he a double-sided Depending on the seating arrangements When you meet a Chinese client for business card with Chinese translation, the host may want the most senior guest the first time, allow them to choose if and don’t just throw your business cards seated at the host’s right hand side or they want to shake your hand or not. A across the table to every person in the directly opposite. smile, nod or small bow may be just as room as it is rude and disrespectful. When communicating in a meeting appropriate. When hosting a Chinese client meeting try to oid using your hands too much. Don’t shake too firmly, a soft handshake arrange for someone from your team to Big hand movements may be distracting, is confident but a firm handshake is greet guests at the elevator and escort especially if an interpreter is involved. insecure. them to the meeting room. In meetings make sure you don’t talk When you are presented with a business Don’t be late. too fast (if English is the client’s second card, accept it using both hands, and When meeting a Chinese client at their language), and don’t point with your index consider it for a moment. office, make sure you enter the room in finger – use an open palm instead. It is Don’t just put the card in your back order of seniority with the most senior also good to oid tapping someone on the pocket – it is more respectful to put it into person at the front, and try to find out shoulder. a card holder or your breast pocket. the client’s full name and title before When entertaining clients, for example When presenting your own business a meeting because it is best to address at a banquet, do be mindful of the same card, or any other gift for that matter, use Chinese clients using their family names etiquette about greeting guests and seating two hands and ensure the text is facing and professional/government titles (at arrangements (if it is a sit-down event). the recipient. least to start with). Connections and relationships, Don’t give and receive business cards Once you are in the meeting room don’t known as guanxi, are very important, so at the same time and don’t forget to pack rush for a seat, instead wait for the host to engage in some small talk before talking lower your arms so that your card is Consider whether you need to bring offered physically below that of your gifts for your client (and sometimes even partner. Each party then removes their for other parties). It can be embarrassing right hand from their own card, grips the if you receive a number of gifts but don’t other party’s card with their right hand, he any to give. then repeats with their left hand (so that Spend time building a relationship you wind up holding the other party’s even when you can’t see immediate card). Each party then politely takes time rewards. Loyalty is extremely important. to examine the other’s card. Treat the card Follow the lead of the Japanese client Japan as an extension of the person, carefully in taking your seat in a meeting room. placing it in your card case or on a table. There is a system in place dealing with Learn the proper etiquette for exchange Never put it directly into your pocket or who sits where, so don’t rush to any seat of business cards and make sure you write on it. at the table. If in doubt, ask. always he a good supply handy. Each Conduct research before your meeting Don’t expect a decision (even if simple) party will hold their card with both hands, so that you know who will be attending, to necessarily be made on-the-spot or by facing their card so that the recipient what their role is, where they fit within a single person. can read the text upright on receipt and the organisation, and so on. This will also extend their arms to offer their card with inform how many business cards you Dylan Burke is a senior associate and Celeste Koros a bow from the waist. To show respect, need to take. a projects lawyer at DLA Piper. ADOBE STOCK 26 LAW INSTITUTE JOURNAL MARCH 2016
news Cultural advice business and don’t be in a rush – strong relationships and points of Quite a lot of Indians are vegetarian connection will develop over time. and do not consume alcohol. Most If you are hosting a dinner (Chinese would be tolerant of you eating meat cuisine or otherwise) order a variety or hing a drink when dining with of different dishes to allow your guests to India them, but if you feel that it makes try them and offer a short toast to formally The most important thing about them uncomfortable try to oid commence proceedings. consumption. If you are hosting Chinese guests in doing business in India is the network Traditional women may not like to of personal relationships. Invest an Australian setting don’t be afraid to shake hands with men so if she does introduce them to Australian customs, for time and effort in establishing and not put out her hand first, or hesitates example Chinese clients may be pleased to maintaining relationships and try to do when you do, just say hello. hear it is not necessary to drink your whole your business dealings through your Be aware of the infamous “Indian glass of wine when proposing a toast. trusted partner. Do not trust a stranger, Standard Time”. Indians are notoriously If you are the guest at a Chinese banquet, especially if you he not done your late for everything. Things take their homework. People are in the habit of try a little of every dish, lee some food on own time to happen. Usually they will your plate to indicate you are full, and return over promising and when it comes to be in time for their business meetings the four if someone next to you pours you delivery, promises may be broken and but sometimes you may he to wait. a drink. It is also a good idea to he a short contracts may be easily reneged or may Do not mind. Also, if you are invited to toast prepared. fall short of expectations. a dinner or a party do not get there on People can be quite religious and Some classic don’t’s include inserting your time unless you know that your hosts tend to observe all kinds of rituals. chopsticks vertically into your rice (a symbol are sticklers for time. Getting there one of death), pouring your own drink (a loss of They are superstitious about doing hour after the invited time is not only face for the host), and refusing to drink a things at a certain time or in a certain acceptable but expected. toast (although a medical-related excuse is manner, often on instructions from Nothing happens early morning in acceptable). Also, don’t point the spout of their priests. Respect those practices India. People start work later so don’t the tea pot at anyone, instead point it at an and if you are told that a particular expect much to happen before 10am. empty seat or point it outside the table. date is auspicious for signing the They tend to work till late though and At the end of the meeting or event escort contract or starting a venture, it is Saturday is often a working day for a best to accommodate those requests. your guests beyond the restaurant or lot of businesses. meeting room, to the elevator, to their car, Also, during major festivals like the Last, bribery is quite rampant and or to a taxi, and provide them with a parting festival of light celebrated sometime in foreigners are easy targets. Be aware gift if you want (but be careful, not to give October/November business comes to a that giving and receiving a bribe is people shoes, clocks or umbrellas). halt and not much will be achieved. illegal in India and subject to severe Indians are very hospitable people And when you are following up with punishment. In some cases, facilitation and guests are considered gods. Respect a note, email or a letter, don’t write your payments may be made. Rely on client’s name in red ink. Although red is the generosity shown or else they may your local partner to understand the generally a lucky colour, in the context of feel quite offended and insulted. They nature of any payment to be made or names red ink, rather counter-intuitively, is are very generous with their meals and else you may fall foul of the foreign time. Always appreciate it and show reserved for the deceased. n anti-corruption legislation in Australia. your gratitude. Also, all Indian meals Did Hallam is a partner and Edward Kus are shared meals and ordering just for Molina Asthana is principal solicitor at the Victorian Government Solicitor’s Office and deputy chair of the a solicitor at DLA Piper. yourself may appear rude. LIV International Law section. Muslim clients for dealing with those of the same gender alternative is placing the right hand on where possible. the heart and nodding with a smile. If you he a meeting or Halal food builds rapport. Organising a Note that not all Muslims are the same event with Muslim clients venue where all parties are comfortable and each will he their own levels of during Muslim prayer times, can build trust and rapport for a more religious observance. However, these tips organise a small room near productive meeting, negotiation or would be suitable for most practising the function hall where Muslim guests team-bonding. Muslims. can observe their compulsory prayers Handshakes may or may not be Email [email protected] Most Muslims do not drink alcohol and appropriate. Some Muslims may prefer com for more specific advice on prefer not to be in situations involving not to he physical contact with alternatives and detailed advice on any of alcohol so it should be oided if possible. unrelated persons of the opposite gender. the above. Some Muslims may he a preference A common non-contact but sincere Jazeer Nijamudeen, Muslim Legal Network president MARCH 2016 LAW INSTITUTE JOURNAL 27
features Cultural identity Cultural diversity in family law The changing cultural face of Australia creates fresh and ongoing challenges for family lawyers. BY SARAH BRIGHT t backgrounds do not align with our modern SNAPSHOT Australian legal system which was founded on Australia’s cultural history has been shaped by Anglo-centric individualist principles. • The cultural the experiences of the first Australians, its time People’s ability to talk about family violence, makeup of Australia as a British colony, and its responses to major has changed world and regional wars and immigration policies. safety concerns and care arrangements for significantly since World War ll resulted in an influx of migrants children depends on their language, cultural the Family Law Act understanding of these issues and views about 1975 was introduced. from north-west Europe and later, from southern the appropriateness of when and how such issues and eastern Europe. The wars in Korea and • Identifying the Vietnam resulted in an increase in migration from should be discussed. needs of a child The experiences of recently arrived people from a multicultural south-east Asia. More recently, migration has bring an additional complexity as the stress from family can be a come from the growing economic powers of India international resettlement combined with the challenge for the and China and refugees and asylum seekers from family lawyers when the Middle East and Africa. Australia is now one changing gender roles and expectations that often advising clients of the most culturally diverse populations in the occur within families following their arrival in about the care Australia can threaten the power structure within arrangements that world. In 2011, the Australian Bureau of Statistics the family unit and their wider CALD community, best meet the needs Census revealed that 26 per cent of Australia’s of their children. population was born overseas and a further 20 per and are an emerging cause of family violence within new and emerging communities. People • When coupled cent had at least one overseas-born parent. 1 from CALD backgrounds are more vulnerable as with proper cultural awareness Diversity and family lawyers they: education and • may not know about their legal rights 2 training, the current The task of the family court is to exercise the • often come from cultures in which individual legal framework discretion provided in the Family Law Act 1975 rights are not prioritised over the greater good can be used by (Cth) (FLA) and, importantly, to determine every of the family or community family lawyers to protect the rights of case on its own unique facts. • often lack the linguistic skills or resources to children. At the heart of most cultures is family. Cultural obtain legal assistance diversity means that not only is the face of • can face potential social isolation if they seek to Australia changing at an unprecedented pace, but enforce their rights. also concepts such as “family” that many of us Increasingly, Australian families are take for granted. multicultural and comprise people from a range Increasingly, the expectations of parties from of CALD backgrounds. In multicultural families, culturally and linguistically diverse (CALD) identifying the psychological, emotional and 28 LAW INSTITUTE JOURNAL MARCH 2016 ILLUSTRATION: CAROLYN RIDSDALE
cultural needs of a child can be a challenge for family It should not be assumed by the lawyers lawyers when advising clients about the care arrangements that best meet the needs of their children. or the parents that the cultural identity of The current legal framework under the FLA, when coupled a child is defined by the CALD community with proper CALD education and training, can be used by family lawyers to protect the rights of children. into which the child was born . . . What is culture? Culture not only refers to a person’s geographical ancestry, maintain their link to the cultural heritage through food, but also includes institutions, manners, habits of thought, religious practice, language and celebration of particular intentions and behiours in everyday life. It encompasses cultural events. For others, culture is not something they the complex web of meanings which underlie everyday life may he articulated or given much thought to as it is often and behiour, and the understandings and expectations expressed in the ordinary activities of everyday life and are which guide our actions and interactions with others. 3 likely to be actions which, on an individual level, are seen 4 Cultural identity is subjective – it is personal and unique as a given or assumed. These assumptions are sometimes to each and every individual. It should not be assumed by only identified when the individual is confronted with a the lawyers or the parents that the cultural identity of a contrasting assumption. Family lawyers often see this occur child is defined by the CALD community into which the when parents disagree about how they expect their children child was born or that it is even necessarily the same as to be raised or with disputes about childhood milestones the cultural identity of the child’s primary caregiver or the (which school they should attend, participation in religious parents. or cultural ceremonies, time spent with family members Cultural identity is fluid – a forever changing and evolving or people from the wider cultural community, trel to process (a lifelong process) that is an important part of a ancestral homelands etc). person’s sense of identity, belonging, self-esteem and worth. People’s experience of their cultural identity at a specific Many first or second generation Australians identify as point of time may be one of disconnect, particularly being part of the culture of their ancestral homeland and following a separation when they may be estranged (even MARCH 2016 LAW INSTITUTE JOURNAL 29
features Cultural identity temporarily during litigation) from one parent or family child’s parents and any other characteristics of the child the member with whom the child maintains that aspect of their court thinks relevant. 7 culture. Cultural disconnect may also occur when a parent For Aboriginal or Torres Strait Islander children, the FLA has chosen not to focus on their own cultural heritage or makes explicit reference to their right to enjoy their culture where that parent does not know themselves the extent of and the court is required to consider the likely impact any their cultural heritage. proposed parenting order may he on that right. Too often in parenting proceedings, culture is treated as an Although not explicit, culture is also relevant to the other afterthought or as part of a “tick a box” approach as lawyers s60CC(3) FLA additional considerations. For example: and family law clients attempt to nigate the complex • culture may be a relevant factor when assessing the pathway of s60CC of the FLA. weight to be given to any views expressed by the child 8 Culture permeates every aspect of a child’s life. Culture • the nature of the child’s relationship with people other 9 informs the behiour and actions of people and their world than their parents is heily influenced by cultural view. As such, culture is a lens through which family lawyers considerations both in terms of people who can educate should consider whether a proposed care arrangement is in or provide the child with a meaningful connection to their that child’s best interest hing regard to s60CC FLA. (or part of their) cultural heritage and persons whom the child’s cultural community traditionally regard as Nigating s60CC FLA – The best important to the child. interests of the child For example, in many Aboriginal or Torres Strait Islander communities, aunts and uncles of a child occupy the same In family law matters, s65CA FLA provides that, in deciding role and relationship to the child as a mother and a father whether to make a parenting order, the court must would in an Anglo-Australian family, and the relationship regard the best interests of the child as the paramount of a child to their cousins more akin to a brother and consideration. Section 60CC FLA sets out the matters that sister relationship. Similarly, older people within the the court must consider when determining what is in a community may be considered and even called grandmother child’s best interests. There are two primary considerations: or grandfather or aunty and uncle even if they are not • the benefit to the child of hing a meaningful biologically related. 10 relationship with both of the child’s parents 5 It is also relevant when assessing how a child is likely to • the need to protect the child from physical or be affected from any separation from their parent/s or other psychological harm from being subjected to, or exposed to, child or person. 11 abuse, neglect or family violence. 6 The extent to which the child’s parents he, or failed The 2012 family violence amendments introduced to take, the opportunity to participate in making major s60CC(2A) which made it clear long term decisions about the child, spend time with or that where there is a conflict communicate with the child, or maintain the child may be 12 between the two primary informed by cultural considerations. considerations, the need The cultural needs of the child may encompass the to protect children from child’s emotional and intellectual needs and inform an 13 harm or from being assessment of the capacity of each of the parents or any exposed to abuse, other person to provide for those needs. neglect or family violence is to be Challenges for family lawyers given priority. Section 60CC(3) By definition, lawyers are precedent based thinkers. As a FLA sets out profession, there is a tendency to look for examples of what the additional has worked in the past and extract and apply the same considerations that principles to similar fact scenarios. the court must consider There is an increasing trend for firms to rely on precedents when determining a child’s to streamline workflows and provide quality control checks. interests. The FLA does not In parenting cases, this can result in family lawyers trying to give guidance to the weight the make each parenting matter fit a pattern by using precedent court attaches to each consideration or orders or paragraphs from an affidit from another how they are to be balanced against each other. matter involving people from similar cultural, linguistic or Within the additional considerations, there are a number geographical backgrounds. which explicitly reference cultural consideration for It is essential to remember that the court’s task is to children, for example, that the court must consider the exercise the discretion provided in the FLA and, importantly, to maturity, sex, lifestyle and background (including lifestyle, determine every case on its own unique facts, eschewing the culture and traditions) of the child and of either of the temptation to neatly categorise matters into convenient boxes. 30 LAW INSTITUTE JOURNAL MARCH 2016
features Cultural identity Similarly, there is a tendency to ignore the heterogeneous A challenge for family lawyers is to nature of CALD communities and for professionals to assume that a single training program, precedent or policy try to identify the unique cultural will work equally as effectively across all members of CALD needs of the children the subject of communities. This attitude ignores the diversity of CALD communities and the reality that each individual child the proposed care arrangement . . . requires different responses to suit their unique needs. Without undergoing cultural awareness training, this precedent-based approach can be risky as it encourages lawyers to make assumptions about what culture means to their client and/or that child. A challenge for family lawyers • The challenges that a person from a collectivist society, is to try to identify the unique cultural needs of the children one which the role of the individual is to play their part the subject of proposed care arrangement, particularly for and sacrifice their individual wants and desires for the those clients for whom culture is a given. greater good of the community, face when trying to The challenge is made more difficult when the client is comprehend aspects of our legal system founded on from a CALD background. individualist principles; • How the lawyer’s own culture affects how they engage Cultural awareness training with others. A person’s culture informs their behiour and actions Cultural awareness training can teach family lawyers and their general world view. With the right education and important skills to more effectively engage with clients training, family lawyers can better understand their clients from CALD backgrounds and to be more aware of any and the needs of their client’s children, and more effectively unconscious bias harboured and keep that bias in check. engage with clients to develop parenting arrangements that Some of these skills include an enhanced understanding of: are in the best interests of those children. n • The importance of language, the benefit of engaging an interpreter and practical issues to consider when engaging Sarah Bright is senior policy lawyer (family law) at the LIV, co-author of Lexis Nexis Practical Guidance (Family Law) module (WA and Victoria) and principal solicitor an interpreter. For example, ask the client whether they at Bright Family Lawyers, a family law practice exclusively for self-represented would feel more comfortable with a male or female parties. The author wishes to thank Alexandra Ridgway for her assistance. For more interpreter, ensure the interpreter speaks the client’s information on cross-cultural practice and strategies for working with people from local dialect, provide the client with a list of possible CALD backgrounds go to www.1800respect.org.au/workers/1800respect-webinars interpreters prior to the appointment so they can choose and Intouch Legal Centre (within the Multicultural Centre Against Family Violence) at (and, in doing so, limit the risk of engaging an interpreter http://intouch.asn.au/training. who may be active within their community and make the 1. www.abs.gov.au/ausstats/[email protected]/Lookup/2071.0main+features902012-2013. client feel uncomfortable); 2. Reference to family court in this article refers to Family Court of Australia, Federal • How the lawyer’s body language, tone and interviewing Circuit Court of Australia and Family Court of Western Australia. 3. https://aifs.gov.au/publications/ style may impact on clients from CALD communities and families-and-cultural-diversity-australia/1-families-values-and-change-setting-scene. how to adapt that style to suit the needs of individual 4. Note 3 above. clients. For example, a male lawyer in an interview with 5. Family Law Act 1975 (Cth), s60CC(2)(a). a female client from a South Sudanese community 6. Note 5 above, s60CC(2)(b). was becoming increasingly frustrated with the client 7. Note 5 above, s60CC(3)(g). repeatedly oiding eye contact when being questioned 8. Note 5 above, s60CC(3)(a). 9. Note 5 above, s60CC(3)(b)(ii). about historical events and eventually touched her on the 10. “Aboriginal and Torres Strait Islander Cultural Competence Course – Accredited, arm and directed her to look into his eyes so he could be Component Three – worldviews, kinship and culture”, Centre for Cultural Competence sure she was paying attention and understood his advice. Australia, www.ccca.com.au/course-details?LCID=13937. The lawyer walked away from the experience perceiving 11. Note 5 above, s60CC(3)(d)(i)(ii). his client to be an unreliable witness. The client, on the 12. Note 5 above, s60CC(3)(c)(i) – (iii) and (ca). other hand, walked away from the experience feeling 13. Note 5 above, s60CC3)(f)(i)-(ii). 14. Anonymised example provided by de-identified frontline family violence social support unsafe, uncomfortable and distrustful of the legal system. worker from a community legal education centre in Melbourne. It was not until he participated in cultural awareness training that the lawyer realised that within his client’s community it was not culturally appropriate for her to look directly at or be touched by a man other than her husband and that the lawyer’s actions, instead of assisting her with her legal problem, made her feel wary of the legal process and could dissuade her from seeking legal assistance to protect her legal rights in the future; 14 MARCH 2016 LAW INSTITUTE JOURNAL 31
Legal services Following seven years of negotiation and debate, the Trans-Pacific Partnership (TPP) was signed by its 12 member countries on 5 October 2015. and the TPP Described by the US as “the cornerstone of the Obama administration’s economic policy in the 1 Asia Pacific”, the TPP is a comprehensive free trade agreement between 12 countries which together represent approximately 40 per cent of global GDP. The countries that he signed the TPP and will The TPP will promote new market access become bound by its terms upon ratification are opportunities for investors and for Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United exporters of goods and services. It will States and Vietnam. impact legal services and benefit lawyers It has been described as “not so much a free trade agreement as an agreement dealing with and law firms. BY ANDREW GODWIN the ‘economic governance’ of member state markets” and “a form of economic constitution 2 for the region”. This is because it sets out rules or principles by which the member countries must regulate their markets. In fact, one of its primary objectives is to provide transparent rules for trade and investment between the member countries. Its key features include the elimination or reduction of tariffs and non-tariff barriers for 32 LAW INSTITUTE JOURNAL MARCH 2016 ILLUSTRATION: JAMIE JONES
features Trans-Pacific Partnership t SNAPSHOT cross-border trade in goods and services, as well services be provided through a specific type as the reduction or removal of restrictions on • In the area of legal of legal entity or joint venture, or through a investment. It imposes core obligations found in services, the TPP local presence. other trade agreements, such as the obligation to provides a guarantee Member countries accept these obligations accord national treatment, most-foured-nation that such services on a “negative-list basis”, which means that (MFN) treatment and market access to investments may be provided on a their markets are fully open to the cross- of one member country into another member cross-border basis. border supply of services from other TPP country. • In the case of member countries, except to the extent Like other trade agreements, it makes provision for legal services, that they he included non-conforming each member country to maintain non-conforming the TPP primarily measures in the annexes. measures that the relevant country considers confirms existing necessary in terms of its own national interests commitments that Professional services and its own economic development. In effect, these member countries operate as country-specific exceptions to the core he made under Annex 10-A, which governs professional obligations and are contained in the annexes. other international services, encourages consultation between The non-conforming measures fall into one of instruments or member countries on issues relating to two categories: domestic legislation. professional services. These issues include • standstill commitments, under which a country • However, the TPP the recognition of professional qualifications commits to a standstill in its non-conforming is noteworthy in so and licences in other member countries measures and not to make such measures more far as it specifically and also temporary licensing or registration restrictive in the future. There’s also a ratchet encourages member arrangements. The annex specifically arrangement under which a new benchmark for countries to allow mentions two areas of professional services: foreign lawyers to the standstill is set if the measure becomes less operate on a fly-in, engineering and architectural services, and restrictive in the future fly-out basis and on legal services. • non-conforming measures over which a country a fully integrated On engineering and architectural services, exercises full discretion. basis with domestic the provisions recognise the work that the An example of the difference in approach lawyers. Asia-Pacific Economic Cooperation (APEC) between the member countries in this regard is has been undertaking to promote the mutual that Japan, Malaysia and Vietnam he included recognition of professional competence in their existing restrictions on legal practice in the engineering and architecture and encourage standstill commitments, whereas Singapore has mutual recognition and temporary licensing included their existing restrictions on legal practice in the or registration arrangements between the professional full discretion measures. 3 bodies in each member country that register engineers 6 This article provides a brief outline of the TPP as it and architects. The TPP is similar to mutual recognition applies to cross-border services, particularly legal services, arrangements that he applied to engineers under other which are governed by Chapter 10. The TPP is particularly international instruments such as the Free Trade Agreement significant as it relates to services. Although trade in between Australia and Korea. 7 services is not subject to tariffs and other direct barriers as in the case of goods, it is often impeded by non-tariff Legal services barriers such as restrictive rules on licensing, red tape In terms of legal services, paragraph 9 of Annex 10-A and work visa restrictions. The removal or reduction of recognises the importance of transnational legal services many of these non-tariff barriers should go some way in “facilitating trade and investment and in promoting towards facilitating trade in services between the member economic growth and business confidence”. Further, 8 countries and achieving greater integration between the paragraph 10 provides that in regulating foreign lawyers and member countries. The US has asserted that TPP is “the transnational legal services, member countries are required most promising platform for Asia-Pacific regional trade to “encourage its relevant [professional] bodies to consider, 4 integration”. Time will tell whether this assertion proves to subject to its laws and regulations, whether and in what be correct in respect of trade in services. manner: Cross-border trade in services • foreign lawyers may practise foreign law on the basis of their right to practise that law in their home jurisdiction Cross-border trade in services is governed by Chapter 10 of • foreign lawyers may prepare for and appear in the TPP Agreement and includes “professional services” in commercial arbitration, conciliation and mediation 5 Annex 10-A. The primary focus of this chapter is on the proceedings cross-border supply of services rather than on the provision • local ethical, conduct and disciplinary standards are of services by investors of one member country through applied to foreign lawyers in a manner that is no more a presence in another member country. In fact, the TPP burdensome for foreign lawyers than the requirements Agreement prohibits a member country from requiring that imposed on domestic (host country) lawyers MARCH 2016 LAW INSTITUTE JOURNAL 33
features Trans-Pacific Partnership • alternatives for minimum residency requirements are a concern about the ability of foreign lawyers to provide provided for foreign lawyers, such as requirements that cross-border legal services on a fly-in, fly-out basis had foreign lawyers disclose to clients their status as a foreign previously arisen in relation to Malaysia until the position lawyer, or maintain professional indemnity insurance was clarified by legislation permitting a foreign lawyer to or alternatively disclose to clients that they lack that provide advice on condition that the foreign lawyer does not insurance stay in Malaysia for more than 60 days each year. 10 • the following modes of providing transnational legal When this is viewed alongside the measures to encourage 11 services are accommodated alternatives for minimum residency requirements and • on a temporary fly-in, fly-out basis also greater mobility of professionals through enhanced • through the use of web-based or telecommunications visa arrangements, it appears that there is a strong push technology to facilitate the cross-border provision of legal services • by establishing a commercial presence between TPP member countries. This will be of particular • through a combination of fly-in, fly-out and one or both interest to the smaller law firms in Australia, many of which of the other modes listed in subparagraphs (ii) and (iii) do not he a regional presence and provide services on a • foreign lawyers and domestic (host country) lawyers fly-in, fly-out basis. The measures to increase mobility will may work together in the delivery of fully integrated also benefit individual Australian lawyers who may wish transnational legal services to relocate to other jurisdictions or spend short periods of • a foreign law firm may use the firm name of its choice”. time on secondment with foreign law firms in other member In the main, the commitments in the TPP concerning countries. legal services are subject to the existing commitments and TPP is also noteworthy in that it specifically encourages reservations that member countries he made pursuant to member countries to allow foreign lawyers to deliver other instruments, such as the General Agreement on Trade transnational legal services on a “fully integrated” basis 9 in Services (GATS) and the relevant free trade agreements, together with domestic lawyers. Although the concept of or pursuant to its own domestic legislation. For example, “full integration” is not defined, it is likely that this would Japan has maintained its existing restrictions on legal embrace arrangements under which local law firms may services in its standstill commitments and Australia enjoys become part of an international practice that shares not no greater treatment than the treatment that it currently only common branding but also common management and enjoys under the Japan Australia Economic Partnership resources – an essential component of a truly global practice. (JEAP) Agreement. In addition, Malaysia has maintained There are many different ways in which foreign and local lawyers and law firms may be permitted to provide . . . it appears that there is a strong legal services and advice on an integrated basis. The choice depends largely on two questions: push to facilitate the cross- • whether there are any restrictions on the form in which border provision of legal services legal services can be provided by local lawyers in the local markets between TPP member countries. • whether there are any restrictions on the nature and scope of integration between foreign lawyers and local lawyers. In some jurisdictions such as Japan, local law may only its existing restrictions on the provision of legal services be practised in the form of a local partnership. However, it is by foreign law firms and foreign lawyers under its own possible for foreign lawyers to enter into a local partnership domestic legislation, namely, foreign law firms may only with local lawyers to practise foreign and local law, and establish a presence in Malaysia through entering into an the local partnership may become an affiliate member of a International Partnership with a Malaysian law firm or global law firm under contractual arrangements between through applying for a Qualified Law Firm licence. This the member firms. type of licence is subject to a quota in the initial period In other jurisdictions, there are restrictions on the nature and is issued only to law firms with proven experience in and scope of integration between foreign lawyers and local International Islamic Finance. Vietnam has maintained its lawyers. For example, before the introduction of reforms existing restrictions, including prohibiting joint venture in Singapore allowing foreign law firms with a Qualifying law firms and other entities in which foreign law firms and Foreign Law Practice licence to employ Singapore-qualified foreign lawyers are involved from representing litigants lawyers to practise Singapore law in certain permitted areas, before the Vietnamese courts. foreign law firms could not practise Singapore law in their When compared with other international instruments own right. However, they could establish a joint law venture governing the cross-border provision of legal services such with a local law firm to practise foreign law and local law on as GATS and the various free trade agreements, TPP is an integrated basis. noteworthy insofar as it specifically encourages member A further measure introduced by Annex 10-A is the countries to allow foreign lawyers to provide legal services establishment of a Professional Services Working Group on a temporary fly-in, fly-out basis. This has been a concern to facilitate the activities between the professional and in relation to certain jurisdictions in the region. For example, regulatory bodies of each member country in the area 34 LAW INSTITUTE JOURNAL MARCH 2016
features Trans-Pacific Partnership of professional services. This should TPP on the provision of legal services is mega-regional-deal-a-game-changer?wtr=tpp-hub-mega- encourage greater dialogue between less significant than in other areas, it regional-deal-a-game-changer. member states and may operate as a is noteworthy insofar as it specifically 3. For an outline of the current rules governing the provision reform driver in its own right. encourages member countries to allow of legal services by foreign law firms and foreign lawyers in selected Asian jurisdictions, see Andrew Godwin, “Going foreign lawyers to operate on a fly-in, global – The Australian legal profession in the Asian century” Conclusion fly-out basis and on a fully integrated (2013) 87 LIJ pp43-45. basis with domestic lawyers. Further, 4. Note 1 above. In relation to professional services such measures that are designed to achieve 5. Chapter 10 does not apply to financial services except in as legal services, TPP provides a guarantee greater mobility of professionals through limited circumstances. See article10.2, para 3(a). Financial that services may be provided on a cross- enhanced visa arrangements and greater services are governed by Chapter 11. border basis and that service providers of dialogue between professional and 6. TPP Agreement, Annex 10-A, paras 5-8. one member country who set themselves regulatory bodies are likely to facilitate 7. Pursuant to the Korea-Australia Free Trade Agreement up in another member country will enjoy increased cross-border trade in legal (KAFTA), a Mutual Recognition Arrangement was signed between Engineers Australia and the Korean Ministry national treatment, MFN treatment and services. This should bode well for of Science, ICT and Future Planning on 6 May 2015. See market access. As the TPP will be binding Australian law firms and lawyers in the Department of Foreign Affairs and Trade, “Korea-Australia on member countries after ratification, it Free Trade Agreement, Factsheet: Trade in Services”, ailable trans-Pacific context. n provides a basis on which each member at https://dfat.gov.au/trade/agreements/kafta/Documents/ country can be held to its obligations Andrew Godwin is director of transactional law and fact-sheet-trade-in-services.pdf. through the relevant dispute resolution associate director (Asian commercial law) of the Asian Law 8. Annex 10-A, para 9. mechanisms. Centre, Melbourne Law School. The author is grateful to 9. It is relevant to note that member countries he reserved the right to adopt or maintain any measure that accords In the case of legal services, the Timothy Howse for his research assistance. differential treatment to countries under a bilateral or TPP primarily guarantees existing 1. Office of the United States Trade Representative, “Overview multilateral international agreement that came into force or commitments that member countries of the Trans Pacific Partnership” (2015) https://ustr.gov/tpp/ was signed prior to the date on which the TPP comes into he made under other international overview-of-the-TPP. effect. This preserves the position agreed between countries 2. Donald Robertson, Herbert Smith Freehills, “Mega- instruments or domestic legislation. regional deal a game changer” (7 October 2015) under existing free trade agreements. Although the immediate impact of www.herbertsmithfreehills.com/insights/opinions/ 10. Note 3 above, p44. 11. Note 6 above, para 10(d). Lennon’s List is pleased to welcome the following readers: Gary Clark Fiona Crock Jason Romney Jing Zhu Practice Areas Practice Areas Practice Areas Practice Areas • Common Law • Alternative Dispute • Children & Family • Competition Law • Inquests Resolution Law • Discrimination • Medical Negligence • Disciplinary & • Commercial Law • Employment Law • Personal Injuries Related Tribunals • Common Law • Intellectual Property • Professional • Inquests • Coronial Inquests • Media Law Negligence • Medical Negligence • Cyber Law • Personal Injuries • Public Liability • Personal Injuries • Guardianship/ • Transport Accident • Transport Accident • Professional Mental Health • Work Cover • Work Cover Negligence • Intellectual Property • Transport Accident • Magistrates Court • Work Cover CLERKS: PETER LENNON AND DANIEL SISCOS Lennon’s List, Barristers’ Clerks, Owen Dixon Chambers, 205 William Street, Melbourne, Victoria, 3000 DX 99 Melbourne T 03 9225 7555 F 03 9225 8968 E [email protected] W www.lennonslist.com.au MARCH 2016 LAW INSTITUTE JOURNAL 35
features Financial agreements Non-English speaking clients Providing independent legal advice to a party to a proposed financial agreement in family law can be perilous, particularly where the client has limited or no proficiency in English. BY VICTOR TSE AND BONITA TSANG t Recent cases SNAPSHOT There are many pitfalls family lawyers need to Bilal & Omar 4 oid when providing independent legal advice The husband Mr Bilal and wife Ms Omar signed • The cases of Bilal & to clients with limited or no proficiency in a financial agreement in February 2007. Three Omar, Hoult & Hoult and Blackmore & English. Parties must obtain independent legal years later, Ms Omar pleaded her alleged lack of Webber highlight the advice when entering into a financial agreement understanding of the financial agreement as a 1 risks of providing pursuant to the Family Law Act 1975 (Cth). reason for it to be set aside. She claimed that she legal advice to Such an agreement allows parties who agree on did not understand the legal advice provided by her parties with limited financial issues to formally finalise them. It can solicitor prior to signing the agreement. English. be entered into by married or de facto couples at Ms Omar had no English skills. She only spoke a • The client’s any time before, during, or after the relationship. Lebanese dialect of Arabic and was also illiterate in 2 understanding of Where an agreement is found to be binding, it her native tongue. the advice is as important, if not ousts the jurisdiction of the family law courts to Ms Omar’s solicitor provided her with verbal more so, than the make financial orders. Accordingly, independent advice in Arabic, though he spoke this in an provision of legal legal advice is a crucial part of creating a binding Egyptian dialect (which Ms Omar claimed at trial advice. agreement. Lawyers must give advice in respect of: not to understand). However, the solicitor also • There are many • the effect of the agreement on their rights arranged for an Arabic interpreter to explain the ways a practitioner • the advantages and disadvantages of the financial agreement to Ms Omar after the meeting. can minimise the financial agreement to the party at the time that The trial judge ultimately found that since risks including 3 using accredited the advice was provided. the solicitor was not present at this later session translators and Since their introduction in 2000, courts he and could not he known what the interpreter interpreters, using set aside financial agreements on the basis of had said, he effectively failed to “inform and give plain English and inadequacies in drafting or review and advice by legal advice” to his client. Although the case was being sensitive lawyers. Within the profession, there is concern eventually overturned on appeal and remitted for towards cultural differences. that financial agreements are uncertain and risky rehearing due to other reasons, this case highlights for both clients and their lawyers. This has led to a the very real risks in advising clients with no or number of law firms declining to prepare or advise limited English proficiency. on financial agreements. Hoult & Hoult 5 Additional complexity is introduced when clients After separating from her husband in March 2011, are of a non-English speaking background. This Ms Hoult sought a declaration that the financial challenges lawyers to communicate and effectively agreement she had signed in December 2004 was advise people who may not be used to legal not binding because she had not been given the systems and may hold world views starkly different requisite legal advice. from those prevalent in Australia. Ms Hoult had one consultation with her solicitor, 36 LAW INSTITUTE JOURNAL MARCH 2016
features during which she read the 11-page financial agreement on her own and then the solicitor read it to her again verbatim. Ms Hoult claimed that she did not “fully comprehend” what the solicitor had read to her as English was not her first language, even though she had assisted her husband with his business affairs. The trial judge accepted that Ms Hoult had only a day-to-day fluency in English, which was different to appreciating the complex nuances of the language. The judge also considered the consultation to be too short given the complexity of the financial agreement, and particularly since English was Ms Hoult’s second language. The decision was overturned on appeal but the point is still valid and instructive. Blackmore & Webber 6 In this case, the wife successfully applied to set aside a prenuptial agreement entered into in 2004 on the basis that the husband had engaged in unconscionable conduct. The Court was satisfied that the husband took unfair advantage of the wife’s special disability pursuant to the test outlined by Deane J in Commonwealth Bank of Australia Limited v Amadio 7 & Anor. It found that the wife had only a limited command of English at the time of signing the financial agreement, hing arrived in Australia on a student visa just three years earlier. Combined with other attenuating circumstances (such as a lack of familial support), this lack of proficiency amounted to a special disability. Although the wife did not allege that she did not understand the independent legal advice provided by her solicitor due to her poor understanding of English, it is conceivable that this could he been an additional or alternative basis for setting aside the agreement. What this means for lawyers The above cases highlight some of the risks that lawyers may face when advising non-English speaking clients. These risks may be oided or minimised by adopting the following measures. However, lawyers should note that a large number of migrants inevitably revert to the family law system, giving rise to many other such problems. Unfortunately, these issues are not addressed or reported in case law because it is often too difficult to get redress under the current law. ILLUSTRATION: CAROLYN RIDSDALE MARCH 2016 LAW INSTITUTE JOURNAL 37
features Financial agreements Party’s understanding in their preferred language and accuracy of a translation are crucial features that are In order to comply with the legislative requirements of more likely to be provided by a properly trained interpreter. providing independent legal advice, lawyers should take Untrained interpreters and family members of the client steps to ensure that their client has an understanding in should not be used. their preferred language of the content and impact of the Even if a lawyer can speak the same language as the documents that they are signing. The client’s understanding client, there may be times where they misunderstand each of the advice is as important, if not more so, than the other, such as when the lawyer is not a native speaker of the provision of legal advice. language or is more comfortable with a different dialect (as Although s90G(1)(b) does not expressly refer to was the case in Bilal & Omar). It is prudent in such a situation understanding of the advice by the party, best practice to use an interpreter. would require lawyers to ensure the client’s comprehension, Where the use of an interpreter is not possible or analogous to the need to establish testamentary capacity appropriate, lawyers should refer the client to a practitioner in the context of will drafting. The Legal Professional who speaks the client’s language. Uniform Law says in relation to the communication If an interpreter is used, it is appropriate to brief them of advice by lawyers: “a solicitor must provide about relevant words and concepts before meeting 12 clear and timely advice to assist a client to with the client. This allows the interpreter to understand relevant legal issues and to be prepared ahead of time, minimising the make informed choices about action to number of on-the-spot interpretations about 8 be taken . . .” This is consistent with a important legal terms. lawyer’s fundamental duties to “act in Plain language 9 the best interests of a client” and to Lawyers should use plain language when “deliver legal services competently, communicating with their clients. They diligently and as promptly as must remember that they are speaking reasonably possible”. 10 to someone who may he limited or no Translation exposure to the Australian legal system. Consider translating the financial Interpreters are not permitted to explain agreement into the client’s preferred the concepts themselves, so the use of legal language. This should be done by an jargon should be minimal. accredited translator with experience in a Additionally, a particular legal term may not legal setting, preferably in the area of family exist in the foreign language in question. Indeed, the complexity of linguistics means that certain words and sentences in English may he no equivalents in other If legal terminology is unoidable, these languages. Lawyers should be careful about their choice expressions should be accompanied of vocabulary. If legal terminology is unoidable, these expressions should be accompanied with a clear explanation with a clear explanation of what of what they mean so that the interpreter can convey this to they mean so that the interpreter the client. In particular, lawyers should oid using expressions can convey this to the client. that may be hard for clients to understand, such as idioms. Interpreters make an oath or affirmation that they will “well and truly interpret the evidence” (see Schedule 1 to the Evidence Act 2008 (Vic)). However, it is unclear whether this law. As an additional safety measure, a family lawyer means English must be translated literally, which can lead conversant in that language should review the accuracy of to absurdity, or in context, which requires a layer of personal the translated document. Allow the client time to read the interpretation on the part of the interpreter. Lawyers 13 document and to discuss and ask questions. should therefore oid using figures of speech to eliminate One of the authors was once engaged by a specialist the risk of any confusion or misunderstanding. family law firm to provide independent legal advice to Like terminology, grammatical structures can also vary the Chinese-speaking spouse of their Australian client. greatly between languages. Using plain English helps Apart from the draft financial agreement, the law firm also to prevent ambiguity and loss of meaning by ensuring provided the author with a Chinese translation of it. that communication is clear and straightforward. It also Working with interpreters helps the interpreter to easily switch between the client’s Where an interpreter is required, lawyers should use one preferred language and English. 11 certified by NAATI. Part of an interpreter’s role is to bridge To address these issues, lawyers must develop the the cultural and linguistic gaps between the lawyer and the necessary skills to work effectively with non-English client and to facilitate the overall legal process. The quality speaking clients. These methods must approach concepts 38 LAW INSTITUTE JOURNAL MARCH 2016
and legal vocabulary in a way that accurately reflects the legal position of the client. Here, the role of the lawyer extends to bridging the disjunction between Australian and foreign cultures in order to properly We don’t want assist the client. Clarity of communication is crucial in any setting, other families especially in a legal context. Indeed, communication issues between clients and lawyers are a common 14 complaint to the Legal Services Commissioner. Using to suffer language that is easily understood will best assist the interpreter and ultimately, the client’s case. When my mum died from breast cancer, Summary I knew that I didn’t want other families to suffer the same tragic loss. When advising non-English speaking clients: • use plain English That’s why our family supports the Walter and Eliza Hall • be aware of cultural and legal differences Institute of Medical Research. • translate a copy of the agreement into a native When we met the scientists at the Walter and Eliza Hall language document for the client if possible Institute, we were inspired by their passionate commitment • use accredited interpreters experienced in family law to finding better treatments for patients. settings You can be assured that donations and bequests to the • brief interpreters regarding the relevant terminology Walter and Eliza Hall Institute support the best research and concepts used in the document into cancer, infectious diseases and immune disorders. • refer to a family practitioner with native language skills where appropriate – Eleni Horbury with her daughter Sophie, • ensure the client fully understands the agreement and cancer researcher Dr Anne Rios. (provision of advice is no substitute if the client does not truly understand the advice). n For more information Victor Tse is principal solicitor at Victor Tse & Associates. He is an LIV please contact accredited specialist in business law and a candidate for a Masters in Applied Ms Susanne Williamson, Family Law. He is fluent in Cantonese and Mandarin. Bonita Tsang was Head of Fundraising, formerly a legal assistant at Victor Tse & Associates. She graduated with a on 9345 2962 or Juris Doctor from Melbourne Law School in 2015 and holds a Bachelor of [email protected] Biomedicine (Neuroscience) from the University of Melbourne. She is now W wehi.edu.au pursuing a career in tax law. 1. Family Law Act 1975 (Cth), ss90G(1)(b), 90UJ(1)(b). 2. Note 1 above, ss90B, 90C, 90D, 90UB, 90UC, 90UD. 3. Note 1 above. 4. Bilal & Omar (2015) FamCAFC 30. 5. Hoult & Hoult [2013] FamCAFC 109. 6. Blackmore & Webber [2009] FMCAFam 154. 7. Commonwealth Bank of Australia Limited v Amadio & Anor (1983) 151 CLR 447, 474. 8. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), Rule 7.1. 9. Note 8 above, Rule 4.1.1. 10. Note 8 above, Rule 4.1.3. 11. NAATI is the National Accreditation Authority for Translators and Interpreters Ltd. Interpreters should be certified to at least the professional interpreter level (formerly known as Level 3). 12. See also S Hale “Interpreter policies, practices and protocols in Australian courts and tribunals. A national survey”, AIJA, Melbourne, 2011, www.aija.org. au/online/Pub%20no89.pdf. 13. Judicial Commission of New South Wales, Interpreters (March 2013), www. judcom.nsw.gov.au/publications/benchbks/local/interpreters.html. 14. Victorian Legal Services Board and Commissioner, Making a Complaint (27 October 2015), http://lsbc.vic.gov.au/?page_id=3077. CANCER | IMMUNE DISORDERS | INFECTIOUS DISEASE MARCH 2016 LAW INSTITUTE JOURNAL 39
features Legal history What’s in a name? t Many Hellenic Australian lawyers felt the need to anglicise SNAPSHOT their names to practise law. BY JUSTICE EMILIOS KYROU* • Many of the early Hellenic lawyers in Australia anglicised The first Hellenic Australian their names. • If people change lawyers their names to In Shakespeare’s Romeo and Juliet, Juliet asks conform, they risk rhetorically “What’s in a name?” Her observation What is striking about the first Hellenic Australian losing part of their that “that which we call a rose by any other name lawyers to be admitted in NSW, South Australia identity. A name can would smell as sweet” suggests that the substance and Victoria is that they all practised under signify a person’s of something is more important than the name anglicised names. familial and cultural 2 heritage. we give it. But by asking Romeo to “doff” his According to Gilchrist, the first Hellenic surname because his being a Montague was an Australian lawyer to be admitted in Australia was • As multiculturalism obstacle to their relationship, Juliet acknowledged Constantine Servetopoulos. His father, Sophocles, has gained broad community that, in a particular milieu, a person’s name can emigrated from mainland Greece in 1885 and acceptance, people be pivotal in both positive and negative ways. prospered as a fishmonger. Constantine was are embracing their In this article, I will consider the change admitted to practice in NSW in 1924. He built Hellenic names. in attitude of Hellenic Australian lawyers to up a thriving practice under the name C. Don retaining their original Greek names since the Service. In 1933, he won a matrimonial property early 20th century. 1 award which was reputedly the largest award to 40 LAW INSTITUTE JOURNAL MARCH 2016 ILLUSTRATION: JIM TSINGANOS
features Legal history that date in the British Empire. He even visited Hollywood was appointed a judge of the Federal Court in 2013. to negotiate film rights for the Macquarie Broadcasting Nick Manos was admitted to practice in South Australia Association. in 1963. His father changed the family’s surname from The second Hellenic Australian lawyer to be admitted Manolakis to Manos after migrating to Australia from the in Australia was John Demetrius Morris. His story is island of Chios. Nick Manos was appointed Chief Magistrate remarkable. His grandfather Hrisoforos Moros had left of South Australia in 1984 and retired in 1994. the island of Poros in 1854 for the Victorian goldfields and changed his name to Christopher Morris. John Morris was Victorian lawyers admitted to practice in Victoria in 1927. After practising at the Victorian Bar for three years, he moved to Tasmania The first Victorian lawyers with Greek-sounding names and signed the Tasmanian Bar Roll in 1930. In 1940 he were Constantine Dimitrie and George Kouvaras, who were was appointed Chief Justice of Tasmania, becoming the admitted in 1948 and 1955 respectively. They were preceded first Hellenic Australian Chief Justice. He was knighted not only by John Morris, but also Constantine John Diamond, in 1943 and later served as Chancellor of the University who was admitted in 1947. His original family name was of Tasmania. His son, John Paul Morris, was appointed probably Diamandis. a magistrate in 1968 and became Chief Magistrate of Jack Harty, who had a Greek mother and an Irish father, Tasmania in 1987. Sir John’s grandson, Did John Demetrius was admitted in 1959. He served as president of the LIV in Morris, is a partner of the Tasmanian law firm Simmons 1983–84. Wolfhagen. Dr Clifford Pannam QC was admitted in 1964. His family’s The third Hellenic Australian lawyer to be admitted was surname was originally Panayiotopoulos or Panamopoulos. Athanasios Theodore Tzortzatos, who was admitted to It was changed to Pannam by his paternal great grandfather practice in NSW in 1938. He changed his name to Arthur Yiannis prior to his arrival in Australia in 1856. Yiannis was George and later became Sir Arthur George. In addition to born on the island of Kythera and came to Australia as a conducting a legal practice, he had interests in farming, member of the crew of the British ship “the Sea King”. The property development, petroleum refining, cinemas, hotels name change may he occurred when Yiannis joined the and transport, and was president of the Australian Soccer crew. He jumped ship in Sydney and made his way to the Federation between 1969 and 1988. Victorian goldfields. Although the first three Hellenic Australian lawyers to Another silk with the original surname of Panayiotopoulos be admitted in Australia became very prominent, they did is Andrew Panna QC, who was admitted in 1980. He was not practise under their original Hellenic names. Either they or their forebears anglicised their name. In the case If my family history had been of Mr Service and Sir Arthur George, there is very little slightly different, I would he been resemblance between the original Hellenic names and the anglicised names. It is a real pity that these men or known as Dimitrios Kyropoulos. their forebears felt the need to abandon their real names in order to succeed professionally. This is not a criticism of them, but an observation about the era in which they practised. It is not possible for us to say whether born in Greece and changed his name from Andreas they would he enjoyed prominence or success if they Panayiotopoulus to Andrew Panna when he became an practised under their Hellenic names. Australian citizen. Nicholas Papadopoulos was admitted in 1964 – the same year as Dr Pannam. He practised under the name N C Papas NSW lawyers and Co. I remember the late Mr Papas because my father and I went to see him in his Lonsdale Street office in 1973 A prominent NSW Hellenic Australian lawyer who did not change his name, possibly because it was short and easily when my father bought his first home. We trelled all the pronounceable, was Theodore Simos. He was admitted to way to the city from Broadmeadows because my father practice in 1956 and was appointed a Justice of the Supreme wanted a Greek lawyer to do his conveyancing. Court of NSW in 1995. He retired in 2001. Although he did An unrelated Nicholas Papas was admitted to practice in not change his surname, he was generally known as Theo Victoria in 1982 and took silk in 2009. His family name was rather than Theodore. Papathanassopoulos. His father Dionisios changed his name to Denis Papas in 1957. Dionisios must he had a great South Australian lawyers sense of humour because when it was first suggested to him that he shorten his surname, he proposed the deletion John Perry was admitted to practice in South Australia of one s in the middle of the surname. In any event, his son in 1960. His father, Yiannis Pieris, came to Australia from Nicholas was appointed Chief Magistrate in 1993, resigning Cyprus in the early 1920s. He changed his surname to Perry. in 1997. John Perry was president of the Law Society in 1984–85 and The first female Hellenic Australian lawyers to be was appointed a Justice of the Supreme Court of South admitted in Victoria were Maria Verginis in 1964 and Nita Australia in 1988. He retired in 2007. His daughter, Melissa, Sdrinis in 1966. The first female Hellenic Australian barrister MARCH 2016 LAW INSTITUTE JOURNAL 41
features Legal history . . . it would be a pity if one’s high prospects of being employed by non-Jewish firms. Also, some protestant firms refused to employ Catholic lawyers. choice of name is influenced by However, the late 1980s were a turning point for the negative external pressures. legal profession. Fierce competition forced firms to merge to increase their market share and to hire the best legal brains to handle the increasingly complex legal work. In short, market forces left law firms with no choice other than to recruit lawyers on the basis of merit. That trend has continued ever since and accelerated considerably when in Victoria was Angela Kominos, who was admitted in 1978 and signed the Bar Roll in the same year. The first Greek-born firms became national and, more recently, international. lawyer to be appointed a silk in Australia was Olyvia Nikou, Australia’s legal profession today is ethnically diverse and who was admitted in Victoria in 1981. She signed the Bar Roll that is one of its strengths. There are fewer people today who in 1983 and was appointed silk in 2000. Her surname has would be reluctant to be assisted by a lawyer simply because been Nikou for several generations. of his or her ethnic background. And yet, there are still some lawyers with diverse ethnic backgrounds who practise under My names a firm name that includes an Anglo-Celtic name even though no Anglo-Celtic lawyer is a partner of the firm. Also, some My first name has a Romeo and Juliet aura about it. I was firms he adopted generic names based on a legal theme named after the hero of a Greek romantic novel The Beautiful or an acronym rather than using the principal’s ethnic- Girl of Peran. That girl’s name was Hermione and she had sounding name. the misfortune of falling in love with a humble boy named Of course, lawyers should be able to practise under a Emilios who was not acceptable to her wealthy parents. She name with which they feel comfortable. However, it would committed suicide when her parents forbade any further be a pity if one’s choice of name is influenced by negative contact with Emilios and he died of a broken heart soon external pressures. When a person changes their name not afterwards. If my godmother had not been captivated by this because they want to do so but because of a perceived need novel when I was born, I would he been given my paternal to assimilate and conform in order to he a client base that grandfather’s name, Dimitrios. If I had anglicised that name, extends beyond one’s own ethnic group, they risk losing part I would he been known as Jim. of their identity and personal history. This is particularly so My paternal great-great grandfather did not he a for names that he a special meaning. A Greek person’s surname. His only name was Kyros. His son, my great surname often discloses the part of Greece they are from grandfather Constantinos, was registered with the surname or the occupation or a personal characteristic of a forebear. Kyropoulos, which means son of Kyros. Constantinos’s son, For example, a surname ending in “akis” (such as “Kourakis”) my grandfather, was registered as Dimitrios Kyropoulos but indicates that the person comes from Crete and a surname he was generally known as Dimitrios Kyrou. My father was commencing with “Papa” indicates that a forebear was a registered as Ioannis Kyropoulos but he was generally known priest. as Ioannis Kyrou. My brother and I were both registered with I he no doubt that the above discussion about lawyers the surname Kyrou. with Hellenic backgrounds is also relevant to lawyers from If my family history had been slightly different, I would other ethnic groups. he been known as Dimitrios Kyropoulos instead of Emilios Kyrou. Had this occurred, it is likely that I would Ethnic diversity in the judiciary he changed my surname to Kyrou and adopted Jim as Ethnic diversity within the judiciary is a relatively new my first name. This is because the notion that one had phenomenon and we he a long way to go before our to assimilate and adopt easily pronounceable anglicised judiciary reflects the ethnic mix of the legal profession. names in order to succeed professionally was not confined In the case of judges with Hellenic backgrounds, unlike the to the 1920s and 1930s. The notion survived well into the earlier examples of Morris and Perry, more recent appointees 1980s when multiculturalism received broad community he tended to retain their original names including Justice acceptance. When I completed my law degree in 1982, the old Anthe Philippides and Judge Nicholas Samios in Queensland; discriminatory recruitment practices in the legal profession Justice Melissa Perry, Judge John Hatzistergos (who is a had not yet been completely displaced by the meritocracy former Attorney-General), Judge Dina Yehia, Judge Nicholas which largely prevails today. Manousaridis and Judge Nicholas Nicholls in NSW; Justice Diversity in the legal profession Antony Siopis and Judge Andrew Strianou in Western Australia; Chief Justice Chris Kourakis in South Australia; Discrimination in the legal profession based on religion, Associate Justices John Efthim and Mary-Jane Ierodiaconou ethnicity, gender and other personal attributes was not and me in Victoria. uncommon up until the late 1980s. Until then, most Greek law Associate Justice Efthim’s original Greek surname was graduates could only aspire to work for a Greek solicitor on Efthimiadis. His grandfather Yiannis changed it in 1934 Lonsdale Street and many Jewish law graduates did not he because he grew tired of telling people how to spell and 42 LAW INSTITUTE JOURNAL MARCH 2016
features Legal history pronounce it. However, his objective of obviating the need Australian lawyers, there will be significant phonetic to tell people how to spell the family name has been only challenges. partially successful because people continue to ask his In the end, we are all Australians. Thankfully, we now grandson to spell Efthim. live and work in a multicultural environment in which Associate Justice Ierodiaconou is the epitome of the most people feel not only comfortable with being known modern multicultural lawyer. Ierodiaconou means by their original names but are in fact very proud of those archdeacon and her Honour’s name dates back to her names. paternal great grandfather who was the archdeacon of So, my answer to Juliet’s question, “What’s in a name?” is his town in Cyprus. By retaining the surname, she has that, unlike flowers and other objects, a person’s name is preserved a tangible link to her great grandfather. While pivotal because it describes more than what they are and her father’s family has a Greek Cypriot background, her what they do; it also signifies who they are as well as their mother’s family has a mixed English, Irish and Danish familial and cultural heritage. n background. Her husband was born in Japan but has a Justice Emilios Kyrou is a judge of the Victorian Court of Appeal and the Korean background. Victorian patron of the Hellenic Australian Lawyers Association. Conclusion * This article has been adapted from a paper delivered to the Eastern Solicitors Law Association on 4 December 2015. 1. The parts of this article that deal with early Australian lawyers with Hellenic Many third and fourth generation Hellenic Australian backgrounds are based on Hugh Gilchrist, Australians and Greeks, Vol III (2004, lawyers are enthusiastically embracing Greek sounding Halstead Press) and the speech made by Chief Justice Chris Kourakis in Melbourne names and actually preferring them to their English on 11 April 2014 when he launched the Hellenic Australian Lawyers Association. I equivalents. For example, I know a Panos who prefers gratefully acknowledge the biographical information I received from Dr Clifford Pannam that name to Peter and an Eleni who prefers that name QC, Andrew Panna QC, Nicholas Papas QC, Olyvia Nikou QC and Associate Justices to Helen. While that is heartening, if the practice of Efthim and Ierodiaconou, and the research assistance provided by Ross Nankivell of the Victorian Bar. hyphenating surnames catches on among Hellenic 2. Note 1 above. In-house practice can present challenges you probably didn’t encounter in private practice. SHARPEN YOUR SKILLS WITH THE LLM (APPLIED LAW) MAJORING IN IN-HOUSE PRACTICE NEXT SEMESTER COMMENCES 7 MARCH 2016 EMAIL US CALL US VISIT US [email protected] 1300 506 402 collaw.edu.au/alp MARCH 2016 LAW INSTITUTE JOURNAL 43
features Court practice and procedure CLIP bears fruit The Supreme Court of Victoria is committed to continuously improving its practices and delivering efficiencies in the case management of its lists. The Supreme Court has been committed For some time now the Court has been aligning to improving its practices and its caseload against specialised lists or practice areas on the understanding that this delivers many delivering efficiencies. The Common benefits to users. Law Improvement Project is a recent This process of modernisation saw a restructure of the Court in 2014 with the Commercial Court initiative. BY JUSTICE JACK FORREST becoming a division in its own right. The Court of Appeal introduced significant reforms to the management of civil appeals, which were themselves based on successful reforms to the criminal appeal process introduced in early 2011. The Court also appointed a Director Registry 44 LAW INSTITUTE JOURNAL MARCH 2016 ILLUSTRATION: GREGORY BALDWIN
features Court practice and procedure t SNAPSHOT • Procedural reforms are underway in Development to review and reform practices in the Principal Work of the Common Law the Common Law Registry in response to the growing number of documents Division Division of the filed, the increasing complexity of matters, and a surge in Supreme Court of Victoria. self-represented litigants requiring procedural guidance. The great majority of plaintiffs in the Over the past nine months the focus has switched to Common Law Division are private • New case the Common Law Division with a team of judges, lawyers citizens seeking judicial review of management models focusing attention and court administrators working on the Common Law government actions, or redress in respect on specialist lists Improvement Project (CLIP). of transport accidents, work-related and appropriate This project is already producing some pleasing results injuries and disputes, defamation, allocation of in terms of helping to better define and, in some cases, land acquisition, medical negligence, functions among judges, associate reduce issues in dispute, with a consequent reduction in institutional abuse, professional judges, judicial hearing time and cost to parties and the Court. Increased negligence, distribution of estates, or registrars and specialisation in case management has contributed disputes over wills. registry lawyers are to greater consistency in practice and promotes the The Division contains some of the being developed. development of jurisprudence in a particular area of law. busiest lists in the Court including the • The reforms are Reforms already implemented as part of CLIP he Personal Injuries and Dust Diseases Lists, aimed at earlier lightened the load of judicial officers when it comes to two of the largest specialist lists. Between resolution of matters, better pre-trial case management, leing them more time for the them, these lists represent approximately prepared cases and core tasks of hearing and determining matters. 40 per cent of the Division’s pending an overall reduction This means the Court is better equipped to give effect to cases. in cost to parties and the overarching purpose of the Civil Procedure Act 2010 (Vic) Any litigation can inflict significant the Court. (CPA) – the just, efficient, timely and cost-effective resolution emotional, financial and reputational of the real issues in dispute. The Court takes this mandate burden on both plaintiff and defendant, very seriously as demonstrated in an increasing number even more so when it comes to personal of cases in which the overarching purpose and obligations injury. The Common Law Division of this Court deals with imposed on people involved in civil litigation he featured the most serious or complex injuries and it is in the interests 1 prominently. of all concerned to ensure that such cases are dealt with as 2 The authorities make it clear that while the interests of efficiently and expeditiously as possible. justice remain the primary concern for the Court, the range The Major Torts List illustrates this approach. It manages of considerations that courts must take into account in complex tortious claims, cases of significant public interest managing proceedings is not limited to the interests of the and common law class actions, for example, bushfire and parties. A balance must be struck between those interests refugee class actions, product liability and public health and the public interest in managing civil proceedings in claims such as the Bonsoy, Thalidomide and Hepatitis C class accordance with the overarching purpose of the CPA so actions. that as many people as possible who require resolution of a The other specialist lists of the division are: Judicial dispute within this Court’s jurisdiction actually receive that Review and Appeals; Testators Family Maintenance; Civil access to justice. Circuit; Valuation, Compensation and Planning; Professional Judges he been active in managing litigation from Liability; Probate; and the new Employment and Industrial initiation to trial for some years. However, the growth in the List which commenced on 1 January 2016 and provides number and complexity of matters has stretched judicial specialist judicial management of non-injury related capacity. In very large lists, the time the managing judge employment disputes. has to devote to pre-trial management of individual matters What the Court is doing and why is very limited. The more time spent on pre-trial case management, the less time ailable to judges to hear and The Productivity Commission in its Access to Justice 3 determine cases. Arrangements report of September 2014 identified factors CLIP is about efficient and appropriate pre-trial case that contribute to unnecessary cost and delay in litigation management and must be the way forward if the Court is to including: keep up with the ever-increasing demand on its resources • a lack of early identification and narrowing of issues, while ensuring that the interests of justice are served and including problems with pleadings litigants he access to the most cost effective enue • a lack of proactive judicial case management possible for resolving disputes within the Court’s jurisdiction. • a lack of judicial specialisation, ownership and continuity MARCH 2016 LAW INSTITUTE JOURNAL 45
features Court practice and procedure • unnecessary interlocutory steps and excessive time and Commercial Court, and registry lawyers he been operating resources being devoted to interlocutory disputes in the Court of Appeal and Commercial Court as case • a lack of adherence to time lines set by the court managers. Legally qualified registrars he also been active • inefficient listing practices. in case management for many years in the NSW Supreme The Commission acknowledged that not all these Court, the Federal Court and the High Court. factors are within the courts’ control and recognised that a number of reforms had already been implemented by A new model for civil case courts to address these factors. With the right resources management there is clearly more that can be done and the Commission emphasised that well-targeted and appropriately employed The primary task of the CLIP team has been the design of a case management can yield significant benefits in terms of new case management model for the large Personal Injuries improved efficiency and reduced cost and delay. and Dust Diseases Lists which will, if successful, be adapted The Boston Consulting Group (BCG) was asked to review to manage other lists across the Division. the performance of the Supreme Court in 2009 and This new case management model is aimed at recommend opportunities to better enable modernising and reforming the practices and the Court to sustainably deliver against its procedures in these lists in order to continue to guiding principles over the long term. A meet growing demand and ensure the best subsequent review of the Trial Division use of the Court’s judicial officers, staff and in 2014 noted that the Court had resources. already implemented a number The model focuses on the appropriate of innovations, particularly in the allocation of judicial functions among Personal Injuries List, which had judges, associate judges and judicial resulted in significant productivity registrars with experienced legal improvements. These reforms practitioners acting as case managers to included a greater degree of assist and streamline processes. Its aim specialisation combined with effective is to achieve less delay, earlier resolution case management, early intervention, of matters, fewer trial adjournments, better increased delegation and effective prepared cases reaching trial and an overall teamwork. BCG also identified a need for reduction in costs to the parties and the Court. resourcing to refine and implement the model The CLIP team developed certain principles of more broadly. case management in line with the CPA, and while there can be no one size fits all model for all the specialist lists, the appropriate deployment of lawyers within each list as These reforms appear to be already case managers is proving to be of great assistance to judicial bearing fruit in terms of cost officers in ensuring that matters are “judge ready” by the time they get to court. and time sings to litigants. The lawyers triage cases at an early stage to ensure they are in the appropriate list and flag any issues which may require particular judicial management such as pleading deficiencies or evidentiary or procedural gaps. Importantly, With this in mind, concerted efforts he been made by they act as a point of contact for the profession concerning the Court over the past 12 months to stream all matters strategic list management issues providing an important issued in the Common Law Division into the specialist enue for dialogue with court users. lists to ensure they are appropriately managed. This has This frees up trial and associate judges to hear and more than halved the number of proceedings in the Court’s determine matters more expeditiously, improving both generic lists and means that matters are more likely to be access to and, it is hoped, the cost of justice. more actively managed and less likely to slip through the These reforms appear to be already bearing fruit in terms cracks. of cost and time sings to litigants. Preliminary analysis Support for specialised lists requires the Court to organise indicates that cases in the Personal Injuries and Dust its resources to meet demand and, in 2015, the Court Diseases Lists are taking less time to resolve and there has obtained short-term funding to employ two experienced been a reduction in the number of court attendances in legal practitioners on a fixed-term basis to work with the those lists. Common Law judges in the implementation of the lists. In Judicial registrars also play an important role in the late 2015, Chief Justice Marilyn Warren appointed Judicial new case management model and a pilot program has Registrar Did Ware as the Common Law Division’s first commenced which has seen Judicial Registrar Ware involved dedicated judicial registrar. in managing matters in the Personal Injuries and Judicial Judicial registrars he been contributing to the success Review and Appeals Lists. The Judicial Registrar has been of the Costs Court, Funds in Court, Court of Appeal and working with registry lawyers in the early triaging of matters 46 LAW INSTITUTE JOURNAL MARCH 2016
features Court practice and procedure and, in the case of the Personal Injuries List, the making of • greater familiarity of judicial officers with matters timetabling orders, determining certain non-contentious • quicker turnaround time for orders and judgments. interlocutory applications and presiding over directions If ongoing funding can be secured so that the new case hearings. management initiatives can be continued in the Personal In addition, the judicial registrar oversees adherence to Injuries and Dust Diseases Lists and rolled out across the timetables in Personal Injuries List matters by way of an Common Law Division, there will also be opportunities for additional directions hearing shortly after the date by which legal practitioners to join the Supreme Court to work with its parties are to he mediated the dispute. This is designed to judicial officers. ensure that matters which remain unresolved at that stage The Common Law Division is a vibrant and interesting area are on track for trial. of the Court’s jurisdiction and I am looking forward to this In other reform measures, cases in lists which do not he next phase of its development. n a dedicated associate judge are now docketed to the associate judge before whom they are first listed for an interlocutory Justice Jack Forrest is Principal Judge of the Common Law Division of the Supreme application or initial directions. This should ensure greater Court of Victoria. familiarity with the case and a consequent sing in both 1. Examples include Northern Health v Kuipers [2015] VSCA 172; Actrol Parts Pty Ltd v Coppi preparation and hearing time. (No 3) [2015] VSC 758; Stagliano (as administrator of Estate of Manlio (dec’d)) v Scerri [2015] VSC 733; Mandie v Memart Nominees Pty Ltd (as trustee for Did Mandie Family Trust) [2015] VSC 622; Batrouney v Forster (No 2) [2015] VSC 541; Gibb v Gibb [2015] VSC Implications for practitioners 35; Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 VSC 758. 2. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; In addition to time and cost sings for their matters, other Ultra Thoroughbred Racing v Those Certain Underwriters & Ors (Ruling) [2011] VSC 370; benefits to practitioners include: Northern Health v Kuipers [2015] VSCA 172. • greater procedural clarity 3. www.pc.gov.au/inquiries/completed/access-justice/report. • more streamlined registry processes • improved compliance with overarching obligations and court orders your career DON’T MISS OUT ON YOUR CHANCE TO MAKE YOUR MARK Accredited specialisation is being offered in the following areas of law in 2016: • Business • Immigration • Commercial Litigation • Mediation • Children’s • Wills & Estates • Criminal • Workplace Relations • Environment & Planning APPLICATIONS CLOSE SOON: Special consideration: 1 April Standard: 15 April T: 03 9607 9460 E: [email protected] www.liv.asn.au/AccreditedSpecialisation2016 MARCH 2016 LAW INSTITUTE JOURNAL 47
features Conflict of interest A dog’s life s29(4) of the DA Act that the Staffordshire terrier Izzy had attacked a person and caused “serious The High Court decision in Isbester injury”, being a 1.5 centimetre laceration to the complainant’s finger. 6 illustrates how the High Court determines The parties entered into a plea agreement with 7 apprehended bias by way of conflict Ms Hughes instructing the council’s solicitors. The agreement included a guilty plea to the of interest. BY ANDREW FELKEL s29(4) charge, and was finalised and entered in the Ringwood Magistrates’ Court on 12 8 September 2013. The following day, Ms Hughes wrote to Ms Isbester advising her that as a result of the guilty plea to the s29(4) charge, on 30 September 2013 the council would be conducting a panel hearing under s84P of the DA Act to determine the fate of Izzy. 9 t Ms Isbester attended the panel hearing and On 10 June 2015 the High Court delivered SNAPSHOT made both written and oral submissions. Ms its decision in the matter of Isbester v Knox Hughes sat as one of the three members of the City Council [2015] HCA 20. In what was • The High Court found panel. 10 a widely reported decision, and the first that the decision- On 15 October 2013 Ms Isbester was notified by case of a dog on death row to be heard by making process letter that Izzy would be destroyed. Ms Hughes 1 the nation’s highest court, the High Court employed by a local wrote or assisted in the writing of the reasons. 11 unanimously allowed an appeal from the council to destroy a dog was contrary to Court of Appeal reviewing a decision by the natural justice. The decision at trial Supreme Court of Victoria. The High Court held that the process employed by the Knox • The decision Ms Isbester appealed to the Supreme Court confirms that the 12 City Council to decide to destroy the dog, test for apprehended of Victoria, Common Law Division, citing Izzy, pursuant to s84P(e) of the Domestic bias set out in Ebner jurisdictional error on the grounds of, inter Animals Act 1994 (Vic) (DA Act) was flawed v Official Trustee in alia, apprehended bias, unreasonableness and because a fair-minded observer might Bankruptcy (2000) procedural fairness. 205 CLR 337 is the reasonably apprehend that a person who appropriate test In their oral and written submissions, counsel took part in the council’s decision-making where a conflict of for Ms Isbester relied on the matter of Stollery 13 might not he brought an impartial mind interest, being that v Greyhound Racing Control Board (Stollery) in to its decision. 2 of a prosecutor, support of the proposition that Ms Hughes’ accuser, or other role as an informant in the Magistrates’ Court Background moving party, is established a conflict of interest that prevented established. her from being a decision-maker on the panel. In On 20 June 2013, Ms Isbester was charged • The decision rebuts Stollery the High Court held that the presence of with a series of offences arising out of the the proposition that a person during deliberations by the Greyhound 3 conduct of her three dogs Jock, Bub and an accuser’s interest Racing Control Board in a disciplinary matter can effectively be 4 Izzy. Subsequently, Ms Kirsten Hughes, the quarantined in cases concerning an attempt to bribe that person council’s co-ordinator of local laws, became where multiple could cause a reasonable man to “very properly” aware of an additional incident involving the hearings arise out suspect that the opportunity to influence the 5 dogs and decided to investigate further. As a of the same discreet decision of the board might he been used. 14 result of these investigations, Ms Hughes, as set of facts. In her reasons dated 17 June 2014, Justice informant, laid further charges against Ms Emerton found that none of the grounds was Isbester including, relevantly, a charge under established. 48 LAW INSTITUTE JOURNAL MARCH 2016