Et Cetera Issue 2 2020: Shifting Landscapes

ISSUE 2 2020

ET CETERA SHIFTING LANDSCAPES

ET CETERA - ISSUE 2 2020 About the Deakin Law Students’ Society: The Deakin Law Students’ Society is one of Deakin’s oldest and largest student societies. We are a student-run organisation which aims to assist Deakin Law students to make the most of their time at law school.

Across our portfolios, we work to provide a range of events and services to assist you at every stage of your degree. Whether you want to improve your grade or make new friends, the DLSS is your one-stop shop for all things law at Deakin.

Disclaimer: This publication is provided free of charge by the Deakin Law Students’ Society. Any opinions expressed in this publication are not to be held as those of the DLSS, Deakin Law School or Deakin University. The DLSS, Deakin Law School and Deakin University do not necessarilly endorse these opinions; they belong solely to the authors.

Copyright: This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may, in any form or by any means (electronic or otherwise) be reproduced or stored in a retrieval system or transmitted by an process, without special written consent of the DLSS. © Deakin Law Students’ Society Room EA2.17, School of Law, Deakin University 221 Burwood Highway, Burwood 3125 www.deakinlss.org

Introduction Et Cetera is the flagship publication of the Deakin Law Students’ Society (DLSS). It seeks to reflect the Deakin Law School zeitgeist of the time, and resonates with the interests of Deakin Law Students. It aims to provoke thoughtful discussion about issues relevant to our readers as students, future legal professionals and citizens of the world.

Editorial Editor-in-Chief - Kim Koelmeyer Design - Jack Enticott Editor - James Dance

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Contributors Fiona Kirkman Jordan West Ben Zerbe Krystal Kovac Lauren Kelindeman Maddie P Meg Reid Su-Anne Tan Burke

Issue 2 Shifting Landscapes

PRESIDENT’S FOREWORD: “Shifting Landscapes”, another apt theme for the rollercoaster that has been 2020! It is safe to say that this year is not what any of us envisioned and especially not what the DLSS Committee envisioned when we started our term in November 2019.

As a collective, we have braved a summer of the worst bushfires our country has experienced, are currently living through a world-wide pandemic, and have witnessed and joined historic social movements.

On the educational and professional front, we have been impacted by the transition to working and learning from home, the loss of employment, online exams, and an extrastressful clerkship and graduate recruitment process.

Despite all of this change and our “shifting landscapes”, you’re still here reading this, and I am still here writing this. Go us.

Amid these unprecedented times, the DLSS Committee did our best to take advantage of our online platform by providing valuable events, reimagined initiatives, and support to our members. I am extremely proud of what we have been able to achieve this year and I wish to thank each and every Committee Member for their contribution.

Annabelle Weinberg President Thank you to everyone who has contributed to this issue of Et Cetera, and a huge thank you to our Communications Portfolio for pulling off another seamless publication.

Enjoy reading!

Anabelle Weinberg

OFFICERS’ FOREWORD: We would like to warmly welcome you to Issue 2 of Et Cetera 2020. Safe, digital, paperless and disinfected, this issue provides unusual and unique insights into the legal landscapes that have been shifting for some time and have accelerated in their transformations this year.

The Issue also looks at landscapes which have had to adopt completely unexpected adaptations given this year’s particular circumstances.

It’s been a fast-moving train and we’ve seen snow-capped mountains, dense forests, salty shores and arid deserts. We hope we arrive at our intended station soon, and that we can focus our efforts on settling in a workable and comfortable town with consistent and reliable conditions.

From lawyers learning how to draw dogs to building a professional network from your desk whilst considering legitimately intriguing constitutional law complexities, we hope to show you that everyone and everything has changed this year. At the very least, you’ll be comforted to know that it’s not just your life that has been turbulent.

Under the sage leadership of Kim Koelmeyer, Director of Communications, we

have put together this collection of wisdom and thinking to best equip Deakin law students for what lays ahead. We also hope that this bank of knowledge may inspire some new ideas.

Et Cetera would be but a title page and back cover page if not for the wonderful and thoughtful contributions of our student and expert writers. We would like to thank you for your reflections.

Et Cetera is one of countless products created by the Deakin Law Students’ Society this year in what has been a concerted effort to help and support Deakin law students as much as possible.

For our readers, we would be excited to receive some article submissions for Issue 1 2021 looking at what will, by then, be our new landscape.

Enjoy!

James Dance and Jack Enticott Communications Officers

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ALUMNI NETWORK Hello Deakin Law School Alumni, We want to hear from you as our role models, leaders, innovators, and trail-blazers.

The DLSS and DLSSG wish to connect and engage with our alumni to provide our students with invaluable insight into how they can use their law degrees. We would love to engage with you, whether that be through judging our competitions, being one of our panelists, or even contributing to a publication.

If you’d like to register your interest, please provide your details using the following link:

BEFORE THE COURT Introducing the DLSS’ first ever podcast!

https://docs.google.com/forms/d/e/1FAIpQLSfMZiHs3EGVowea5PhKqj-1TDy34xbkSjLGwL3emLO_73C-7w/viewform If you have any questions or wish to know more, please do not hesitate to contact either Anabelle Weinberg (president@deakinlss.org) or Emma Genovese (president@dlssgeelong.com.au).

Before the Court takes an in-depth look into the exciting areas of the legal world outside the commercial sphere. With new guests each episode, the Industry Careers Portfolio of the Deakin Law Students’ Society interviews leaders in the legal profession to discuss different areas of law, the careers of the guests, and how students can get their foot in the door.

Episodes of Before the Court are now streaming on Spotify and Apple Podcasts.

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JOIN THE COMMITTEE!

We’re hiring!

The DLSS is on the lookout for Officers for 2021. If you’d like to get more out of your university experience, meet some incredible like-minded law students, and attend amazing social events then this is your chance.

We’d love to welcome you into our amazing community. We’ll be beginning our search for new officers very soon, so this is the opportunity to get involved. There a range of positions available, so there is something for everyone.

Keep your eyes peeled for applications! All announcements will be broadcast on the DLSS Facebook page.

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TABLE OF CONTENTS: 10 Family Law and Mediation In A COVID-19 World The effects of COVID-19 and widespread imposition of lockdowns have impacted all of us in unpredictable, varying ways. Fiona Kirkman and Jordan West shed light upon the challenges faced by feuding families, as well as the innovation brought on by these challenges.

13 Coronavirus and Borders A fascinating insight into the legal implications of our government’s response to COVID-19. Unprecedented times call for unprecedented measures, but does the total closure of state borders contradict the Australian Constitution?

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26 Conversations With A Criminal Barrister Meg Reid sits down with Shivani Pillai, a barrister with over 20 years experience of practice in Criminal Law, to discuss the postponement of criminal jury trials in Victoria.

28 'Being Commercial' - What It Means Su-Ann Tan Burke provides an insightful reflection of what it actually means to be ‘commercial’, as well as how lawyers can provide holistic advice which takes into account all of the client’s needs.

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Emphasising the 'Counsel' In Legal Counsel

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Little Failures

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How 15 Minutes A Day Of Wellbeing Can Make You A Happier, Healthier and Better Lawyer

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Making the Net Work For You

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Hearsay 9

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FAMILY LAW AND MEDIATION IN A COVID-19 WORLD FIONA KIRKMAN & JORDAN WEST

The breakout of the pandemic has affected families in several ways, including psychologically and economically. Family law issues such as separation, divorce and (the risk of) family violence have only been exacerbated - especially where lockdowns have been implemented. The Federal Circuit Court has seen a 70% increase in urgent cases and the Family Court has seen an increase of almost 200% in urgent cases, according to Chief Justice Alstergren.1 Families engaging in these cases are also experiencing job insecurity, instability of business and volatility in the property and share markets; all of which may impact the asset pools and agreements relied upon to effectively divide their finances upon separation. The shift toward a remote working environment using technologies such as video conferencing software and specialist platforms like FamilyProperty aims to reduce the reliance on the Court system and increase productivity and efficiency in family law matters.2

The family law system itself can have a profound

impact on the family. This is exacerbated when combined with the effects of the pandemic. Despite ultimately being legal disputes, there are facets of psychology and sociology that impact family law disputes. Rose Cuff of The Bouverie Centre in June 2020 stated that where mental illness already has an impact on the family, especially during Family Law proceedings, it is important for practitioners to engage by understanding and acknowledging the unique situations of clients and maintain an open and safe environment for them as opposed to making assumptions and following set standards.3

At Kirkman Family Law,4 the use of the P.A.U.S.E principle underpins Rose’s advice and strives in each instance to encourage the parties to pause and move towards future focused interest based negotiations.5 The P.A.U.S.E acronym is also used to focus on the importance of preparation, affirm relationships as co-parents, understand interests, search for creative solutions and evaluate options in order to reach agreements.

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Sabra Lane, Interview with William Alstergren QC, Australia (Radio Interview, 12 August 2020).

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Family Property <https://www.familyproperty.com.au>.

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Rosemary Cuff, ‘Mental Illness in Family Law’ (Webinar delivered online, 17 June 2020).

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Kirkman Family Law <https://www.kirkmanfamilylaw.com.au>.

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P.A.U.S.E Kirkman Family Law <https://www.kirkmanfamilylaw.com.au/pause.html>.

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ET CETERA - ISSUE 2 2020 The involvement of other professionals in family dispute resolution (FDR), such as financial professionals, psychologists and child consultants is beneficial as it provides a holistic approach and additional perspectives which might not have been introduced but for their involvement. Collaboration with other professionals can help lawyers and mediators ensure that full and frank disclosure is undertaken, financial realities considered, the views of the children are heard and that the parties are emotionally supported during the process. By ensuring that the process of FDR is collaborative, it also takes away the adversarial nature of disputes which are commonplace in family law proceedings.

more efficient and effective collaboration through the use of breakout rooms and the slew of host controls which allows the mediator to take greater control where required. Interestingly, statistics indicate that FDR processes being conducted virtually are seeing a greater resolution rate than those previously conducted face-to-face,7 perhaps due to the security provided by video conferencing from their home environment.

A definite sign that online FDR will become the new norm.

In addition to the remote environment presented by COVID-19, new technologies such as FamilyProperty have been instrumental in providing a platform for the timely, cost-effective and efficient resolution of family law disputes. FamilyProperty does intake entirely online via a questionnaire that captures clientsâ&#x20AC;&#x2122; personal information and circumstances. The questionnaire then generates an interactive autocalculating working balance sheet. Documents can be uploaded to support the assets on the balance sheet to assist with disclosure. Having a neutral balance sheet also removes the possibility of issues arising as to disclosure if there appear to be inconsistencies.

When the matters are finalised, document automation allows generation of Court documents to reflect the agreement reached. FamilyProperty enables family law professionals to focus on providing legal value rather than serving as paper pushers. It also provides clients a greater understanding and transparency of the issues in agreement and dispute, thus promoting effective

The Federal Circuit Court has seen a 70% increase in urgent cases and the Family Court has seen an increase of almost 200% in urgent cases.

A key change spurred by COVID-19 was making the workplace completely remote; this meant taking FDR to the virtual space. Using Zoom and Microsoft Teams (and other specialised dispute resolution platforms such as Immediation) has proved an excellent alternative to face-to-face FDR.6 It brings with it safety for some clients (concerns of being in the same environment as their former partner) and allows for

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Immediation <https://www.immediation.com>.

7 Fiona Kirkman â&#x20AC;&#x2DC;Mediation and Collaborative Practice Post COVID-19â&#x20AC;&#x2122; (Webinar delivered online, 20 August 2020).

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ET CETERA - ISSUE 2 2020 collaborative practice firm focused on resolution without court. She is also the founder of the product FamilyProperty (an innovative family law product that offers a better way to manage family financial matters and mediations online and collaboratively) and LawSwitch (a chatbot, document automation and booking page product for law firms). Fiona is passionate about utilising legal technology and dispute resolution processes to craft new ways law is practised.

negotiation and resolution.

Despite ultimately being legal disputes, there are facets of psychology and sociology that impact family law disputes.

There is an increasing online landscape in family law and dispute resolution which is hoped will propel a somewhat reluctant legal industry into the legal technology age and help promote better access to justice both during the pandemic and beyond. This shift to technology has been a wake-up call for the legal system and has provided insight into the future of the profession, and encouragement for its continued implementation in the future.

Jordan is a PLT Student intern at Kirkman Family Law and a final year law student at the University of Wollongong, New South Wales, studying a combined degree of Bachelor of Laws & Bachelor of International Studies. Jordan is passionate about legal technology and its intersections with Family Law and hopes to combine his passions and proficiency in Japanese to help provide greater access to justice.

____________________________________________ Fiona is an Accredited Specialist in Family Law, a Nationally Accredited Mediator, Family Dispute Resolution Practitioner and Collaborative Practice Divorce Coach. As director of Kirkman Family Law, she runs a specialist family law mediation and

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CORONAVIRUS AND BORDERS Ben Zerbe

The arrival of COVID-19 in Australia has heralded the use of incredible powers by the Federal and State Governments. For the most part, the public’s desire to be free of both the virus and the lockdowns that accompany its uncontrolled presence has resulted in acceptance of previously unimaginable impositions. Many of these have been controversial but few have invited as much legal speculation as the decision by states to erect internal borders in Australia. The question that remains to be answered is whether these internal borders are legal.

The borders are inherently at odds with the purpose that drove the unification of the six British colonies into a single nation. That unification was inspired by a range of considerations. Chief among them was the desire to facilitate free trade between the colonies. Prior to 2020, it was easy to forget the level of independence each colony possessed before federation. Differing railway gauges, border tolls, import taxes and excises levied by each colony against the others hampered internal trade and stood in the way of a continental economy. The federation process was designed to eliminate these barriers between colonies, now states (with additional internal and external territories), and create a prosperous unified national economy.

This ambition was written into law via section 92 of the

Australian Constitution which states “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” The key elements of this clause come together to read: trade, commerce and intercourse among the States shall be absolutely free.

For the most part, the public’s desire to be free of both the virus and the lockdowns that accompany its uncontrolled presence has resulted in acceptance of previously unimaginable impositions.

The judicial interpretation of this clause has not been without controversy. There have been significant disagreements about the legal implications of the term ‘absolutely free’. It is clear from the evidence available from the Convention debates that the framers of the Constitution never intended ‘absolutely free’ to be applied absolutely. There seemed to be a relative consensus that certain restrictions such as those imposed by licensing regimes and the need to control weeds and

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ET CETERA - ISSUE 2 2020 other pests required some level of restriction. However, the clause was vague enough that at times it had been taken to mean that State Governments were unable to create laws which would restrict interstate commerce.

This interpretation essentially imposed the doctrine of laissez faire economics onto Australian interstate trade.

It was only with the decision of Cole v Whitfield in 1988 that the jurisprudence of section 92 was relatively settled. The High Court in Cole v Whitfield unanimously characterised the language of section 92 â&#x20AC;&#x153;as a rallying call for federationists who wanted to be rid of discriminatory burdens and benefits in trade, and who would not suffer that call to be muffled by nice qualifications.â&#x20AC;? The High Court then read the clause down to ensure that it would only prevent those laws which were discriminatory in effect and grounded in a protectionist purpose from taking effect. There has been further elucidation on the finer points of when a law may fall within the scope of section 92, emphasising that those laws which are deemed proportionate and necessary, even if somewhat discriminatory, may escape its clutches.

The question which naturally arises is whether the borders being imposed by State Governments fall within the category of laws which are reasonably necessary to enact a non-protectionist purpose. However, to some extent this line of thinking is allowing the cart to lead the horse. Litigation involving s 92 of the Constitution has largely related to restrictions on business such as onerous or discriminatory licensing requirements or restrictions on the movement of specific goods. The borders erected in 2020 are of a completely different nature. Whilst there is variation in how the closed borders are being enforced, they tend to be impervious except where some form of specific exemption is granted.

The question that the Court has tended to grapple with in applying s 92 is whether State Governments should be allowed to regulate trade and commerce from other states, not whether they should allow individuals from other states to cross the borders. One can accept that the language of section 92 was a rallying call for federalists, yet still think it provides a strong justification for freedom of movement within Australia.

On the proportionate and necessary point however, it seems likely that the near blanket bans being applied

by Queensland and Western Australia would struggle to survive a constitutional challenge. If a border were to be permitted for the legitimate purpose of preventing a COVID-19 outbreak, that justification has to be limited to restricting travel only from areas where COVID-19 is prevalent.

These issues can seem academic from afar, but in border regions where communities have become accustomed (with good reason) to unfettered interstate intercourse these laws are impacting lives. Fly-in fly-

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ET CETERA - ISSUE 2 2020 out workers have been separated from their families for months as they risk leaving income if they return home. Many of us will be familiar with the story of the mother who lost her baby after failing to apply for an exemption from the Queensland Government to travel to Queensland for treatment. The issue being that if Queensland’s border restrictions were to fall foul of s 92, there would never have been a justification for having to seek a permit in the first place.

On the proportionate and necessary point however, it seems likely that the near blanket bans being applied

by Queensland and Western Australia would struggle to survive a constitutional challenge.

Even on the Victorian border with NSW where there would seem to be the strongest justification for imposing a border, there could be problems. Every day, individuals with businesses that cross the Murray such as in Albury-Wodonga and Echuca-Moama are restricted from going back and forth. Often essential services such as hospitals are based on one side of the border but used by those on the other side. The issue is whether the restrictions can be justified as necessary when COVID-19 cases in border communities have been relatively negligible for most of the period.

trade and commerce. But for those living in border communities or working interstate, constitutional law is a living issue. State Governments are acting with impunity, but it is likely that challenges under section 92 could bring clarity to the circumstances in which a hard border may be imposed and to what extent it may be maintained.

____________________________________________ Ben is a final year law student who has been inspired

by Epictetus’ stoic observation that ‘It is not so much what happens to you, as how you think about what happens’ and the Corona Beer slogan ‘from where you’d rather be’. Unfortunately, no amount of stoic philosophy has been able to compensate for the fact that he would rather be anywhere other than Melbourne in 2020.

Constitutional law can often seem dry and remote, especially when it relates to matters such as interstate

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EMPHASISING THE ‘COUNSEL’ IN LEGAL COUNSEL KRYSTAL KOVAC

The rise of in-house counsel being positioned as an executive only began to gain traction in the late 1980s, placing the role of in-house counsel as a relatively new subsection of the legal profession. Originally, in-house counsel were hired to liaise with the company’s external legal advisors and handle the administrative work.

Within the span of three decades the role of in-house counsel has shifted dramatically and poses the question: with the shifting landscape fast-tracked by a global pandemic, how will the role of in-house counsel continue to evolve?

At the core of any company is the need to be profitable, and amid a global pandemic this need is placed under a microscope. The flow on effect is that each and every department within that company needs to add value.

With the ever-growing list of regulatory compliance companies now face, the trend to hire and grow legal teams and their remit, is likely to be on an upward swing where teams can embrace the following:

posed, they just need to know how they can operate legally. This means not saying ‘no’, but rather finding legal ways to achieve the outcome the company desires and ensuring risk is communicated clearly. To do this successfully, understanding the operating model and products/services is imperative. In my experience, being part of the management team has meant that I am part of the conversations before changes are implemented, rather than trying to mitigate risk once decisions have been made or changes have been implemented. For example, I was recently a part of the development process for a new service offering. I was able to highlight the legal issues and offer potential workarounds while the service was still being developed. I have also been involved in developing the company strategy and have been able to highlight current and potential future changes to the employment law landscape that may impact the strategy plan.

With many general counsels (GCs) becoming involved in the broader company strategy and the pandemic highlighting the GCs’ innate strength of remaining calm and logical while leading crisis management, we are likely to see an increase of GCs stepping across into CEO roles in the same way CFOs currently do.

Be a Business Partner:

Great in-house counsel recognise the needs of the company and operate in the same manner as the other executives. The company does not want a ten-page written advice full of legalese on the question they have The use of in-house counsel outside of strictly legal

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ET CETERA - ISSUE 2 2020 functions is also likely to increase and diversified skillsets will be in demand. As an example, analytical and logical reasoning skills can be used to identify product development based on contractual trends or improve customer service by identifying ways to simplify the contracting or sales process. Ultimately, to add value the starting point is to develop internal relationships with all business departments, understand their processes and pain points, and ensure the legal team operates as one team with the other business units.

Implement Technology: Legal technology must shift away from being considered a novelty for those who are tech savvy, and instead become part of the everyday tools required for a legal team to operate efficiently. In the same way that finance teams use accounting software and customer service teams use ticketing software, the expectation will be that legal teams stop using paper, Word documents, and their computer drive to track and store their workloads. Some examples of software that can be implemented immediately and without expertise include:

1. Workflow management through platforms such as Monday or Jira. This is crucial not only to become an agile and adaptable team, but also for reporting purposes. Work must be tracked and able to be picked up by another team member if the person responsible is away. Most companies do not use billable hours, however, it is still important for management to have visibility over the teamâ&#x20AC;&#x2122;s output for headcount resource purposes. Monday is the choice platform within my team for monitoring workflow. Every person in the legal team can see the status of all matters, along with comments, so any team member can continue on with the task.

Our operational and sales teams also have access to Monday, meaning that they are able to see what stage their contract is at without needing to phone the legal team. While not a â&#x20AC;&#x2DC;legal taskâ&#x20AC;&#x2122;, the data shown in reporting is invaluable to a company. We track a number of metrics the company relies upon when making decisions. For example, in the contract space, tracking the state the client is based in will give the company insight into where the sales effort needs to be focused. Tracking non-standard clauses that are being complied with using manual operational processes can also highlight where automation investment may be worthwhile when those clauses start to appear across multiple clients.

2. Contract and matter management - the options in this category are endless and cater to even the most minimal of budgets. Platforms like ContractWorks and LawVu can offer visibility to all business departments, allow you to automate contracts, and give visibility of contractual clauses within the contract base using metadata tags. Using a contract

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ET CETERA - ISSUE 2 2020 management tool allows my team to generate contracts using pre-filled fields. This increases workload efficacy and decreases the chance of manual errors. It also allows legal to provide self-service documents to the sales team, reducing the tasks sitting with the legal team. Where self-service is implemented, fields are restricted to ensure the necessary clauses are not altered.

data analysis to find the gaps where value can be added in new ways. ____________________________________________ Krystal Kovac is the Head of Legal & Compliance at Oncore and is based on the Sunshine Coast.

3. Electronic signatures - most sales teams will expect electronic signatures to ensure the deal can be closed as quickly as possible. Legislative changes are desperately needed to give organisations peace of mind that their agreements are binding when signed electronically. The implementation of electronic signatures in our process significantly decreased the turnaround time for clients returning signed documents. The goal of any contracting process is to be as quick as possible, to enable the company to start providing the service to the client.

The opportunities in this climate will be vast for lawyers who are willing to step outside the idea of the traditional legal pathway and diversify their skill sets by learning about technology, business strategy, and

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â&#x20AC;&#x153;Great in-house counsel recognise the needs of the company and operate in the same manner as the other executives.â&#x20AC;?

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LITTLE FAILURES: Law students are known for being professional, conscientious, intelligent and organised. We dress well, we champion our throughtfully-curated LinkedIn pages and we’re highly career-driven. From the outside, we’re flawless.

Except, we’re not. The reality is that one of us actually have any idea what we’re doing. We’ve been bluffing this whole time.

So here are some of our little failures.

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Calling a Partner by the wrong name and playing High School Musical music out loud instead of through my earphones right outside his office.

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Prematurely sending a reply all email to the whole practice group that just said ‘woohoo’.

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Forgetting I had a bright green facemask on and jumping on a zoom meeting with it on and only realising when I saw my reflection.

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Just sent a chat in the wrong blackboard seminar that genuinely makes no sense and it’s recorded.

I slept through a job interview and woke up to 15 missed calls and approximately 10 people thinking I was dead.

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My work email logged me out of my mail app without me noticing so I missed a solid week of work emails.

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I was driving down a busy street pumping Eminem to psych myself up for an interview. It didn't occur to me that my sunroof was down and the entire street was looking at me. The best bit? When I pulled over, a guy who I used to date (and who ghosted me) was standing there watching me.

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Just realised I’ve been calling the People’s Choice Panel ‘PSP’ instead of ‘PCP’.

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HOW 15 MINUTES A DAY OF WELLBEING CAN MAKE YOU A HAPPIER, HEALTHIER AND BETTER LAWYER LAUREN KELINDEMAN

At the start of March 2020, I was in a happiness bubble having just returned from a relaxing week scuba diving in Thailand. I seemed to have missed the news on panic buying, so when I got home and stepped into my local supermarket, I was in for a shock! Looking around, the shelves were empty. How strange, I thought to myself. People started shouting and physically fighting over the last remaining items. I felt like I was in a zombie apocalypse movie and my happiness bubble quickly burst.

As someone who has Generalised Anxiety Disorder, my fight or flight reaction kicked in and I got out of there pronto (without any of the groceries I actually came for).

The next day, still disturbed by my supermarket experience, I couldn’t concentrate on my work. I spoke with my colleagues and we all felt the same. I knew something unconventional had to be done to help us through this awful time, both personally and professionally.

With the support of Legalite, I started a wellbeing initiative called Love Your Life. It consists of daily 15-minute wellbeing sessions, which are free for the public via Zoom. Each day we do a different activity,

such as a drawing class, chair yoga, gratitude or creative writing. My colleagues, family, friends and people from all around the world login each afternoon at 2pm (when people usually hit their slump) and join us.

The impact of the sessions was instant. We spent most of the time laughing and smiling, and afterwards we felt happy, calm and socially connected. We made new online friends who we never would have met otherwise. It enabled a safe space for us to be silly and play.

This is so refreshing and humanising when we feel like we have to be serious all the time as lawyers.

After 2 months, we surveyed attendees and the results were enlightening: • 100% of people felt more productive compared to the days they did not attend.

• Nearly 90% of people rated their happiness levels at 9 or above out of 10 after a session.

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ET CETERA - ISSUE 2 2020 • 78% of people introduced a new wellbeing activity into their life as a result of the sessions, such as creativity, goal setting and mindfulness breaks.

Psychologist Sonja Lyubomirsk tells us that 40% of our happiness is caused by our intentional thoughts, actions and behaviours.

Six months on, the benefits of Love Your Life sessions are still flowing.

We were finalists in the Wellness Initiative of the Year category in the Australian Law Awards 2020. I was also a finalist in the Wellness Advocate category in the 30 Under 30 Awards in 2020.

The LIV have asked us to run wellbeing sessions for their conferences in 2020, as well as running internal sessions for their staff. This has allowed us to expand the positive benefits to hundreds of lawyers across Victoria.

As a team we have become far more creative with our ideas and have come up with new ways to innovate legal services: • We make hand drawn cards for clients’ milestones.

• We provide infographics to supplement our legal advice for visual learners.

• We design ‘fun’ front covers for our clients’ new contracts so they are not intimidating.

This has been greatly beneficial for our clients, as the work we do for them becomes more understandable and relatable. Also, it allows us to express how we care about our clients and their business in our own way, making them feel valued. We want people to enjoy

interactions with their lawyer!

As one of the most unhappy professions, it is time for lawyers and law firms to prioritise wellbeing in a practical and significant way. Our work allows us to help members of the community, so we should be able to do it happily, healthily and to a high standard.

As one of the most unhappy professions, it is time for lawyers and law firms to prioritise wellbeing in a practical and significant way.

We plan to continue this initiative at Legalite well beyond the end of Melbourne’s lockdown. We now run the sessions twice a week for the public and plan to do so indefinitely. Wellness is an ongoing priority which does not simply end because we can walk the streets again.

Our wellbeing won’t improve by itself if we sit back and do nothing. However, we can improve it by actively doing things that are good for us like exercising, practicing gratitude or being creative. In other words, we mustn’t forget that we are normal human beings who just so happen to have an LL.B after our name. Please feel free to join a Love Your Life session with us for free! Register at Eventbrite by searching for ‘Legalite’. ____________________________________________ Lauren is an Associate and Wellbeing Champion at Legalite, a commercial law firm that specialises in franchising law. She is also a published children’s book illustrator and loves to be creative.

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MAKING THE NET WORK FOR YOU MADDIE P

‘It’s not what you know, but who you know’. In the face of lengthy lockdowns, virtual networking is more important than ever. Networking can help you find a lifelong mentor, lead you to great work experience, and allow you to build a community in which you can share and receive guidance on navigating life in law.

people. I recently participated in The Legal Forecast’s ‘TLF Connect Virtual Mentoring Program’, found graduate positions in the ‘jobs’ section, and landed the opportunity to write this article - all from LinkedIn. If you’re scared to put yourself out there, start small.

Start by connecting with friends and colleagues and following organisations and law firms you might like to work for one day. Then, slowly reach out to new connections, comment on posts and share your own achievements as you feel comfortable.

For many, networking can be daunting and overwhelming. After facing the initial challenge of having no connections in the industry, I made an effort to develop my networking skills; I’ve worked on drafting messages in a professional yet genuine manner and appreciating the importance of sharing with my connections. I am by no means an expert, but I’m happy to share advice based on my experience in the hopes it might help some of you out there. Even if you’re not in your final or penultimate year, it is never too early to start connecting with new people - and making the most of some extra time you might have on your hands.

If you’re scared to put yourself out there, start small. Start by connecting with friends and colleagues and following organisations and law firms you might like to work for one day.

‘How do I become comfortable with putting myself out there?’ ‘How is it possible to network from home without the cocktails and canapés?’ The answer, despite the memes and stereotypes of the ambitious law student, is LinkedIn. I’ve found a wealth of opportunities and have been able to connect with a range of amazing

There are plenty of resources out there on how to best style your page, but it is really a matter of personal preference. My best advice is to think of it like a resume; frame it in a way that you would be happy with potential employers seeing. Take advantage of the personal link feature to include it in your resume and

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post.

When reaching out to new connections, it is best to include a professional and personalised note that either asks questions about some of the individual’s experience, or if you met at an online networking event, follow up from your conversation. This is a great way to get your foot in the door and start expanding your network.

Ultimately, the best tip I received with regard to LinkedIn is to share with your network. Repost articles about law that you find interesting, share job posts, recommend a great webinar you watched, or support your friend’s achievements. You have to be active. This is an opportunity to share your personal brand with a large and diverse audience. This helps your community, including prospective employers and colleagues, get a gauge of who you really are.

In the face of lengthy lockdowns, virtual networking is more important than ever.

These are some of the things I’ve learnt as a novice networker. I hope some of this advice nudges you to get started on your own networking endeavours. Happy networking!

Following law pages like ‘The College of Law’, ‘Deakin Law School’ and ‘InsideSherpa’ can unearth countless opportunities for you to upscale and engage with webinars and courses while at home. This will also allow LinkedIn to provide you with personalised recommendations for jobs based on your skills and interests.

I found Lucy Dickens’ ‘Doing Law Differently’ podcast as a result of being tagged by my mentor in a LinkedIn post advertising the College of Law’s ‘Bootcamp: Everything you want to know about working in a law firm’ webinar. This webinar gave me practical skills on what to expect when first entering a firm, and how to improve the effectiveness of my job applications from the comfort of my own home. I prefer to watch recordings of webinars so I can take down notes and allow the knowledge to really sink in. If you do attend the live webinar, make the most of it by asking questions.

You can also connect with the speakers or organisation afterwards by leaving a positive review under their

____________________________________________ Maddie is a novice networker in the final year of her degree. She enjoys reading, mooting and has aspirations to become a legal writer.

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CONVERSATIONS WITH A CRIMINAL BARRISTER MEG REID

Victorian Courts and VCAT are currently operating in a very unusual way. This includes postponing criminal jury trials and increasing digital access to cases. Wherever possible, trials are proceeding as remote virtual hearings, irrespective of their intended length. Physical attendance, which was previously a fundamental element of court proceedings, is now limited to urgent or priority matters. For insight into the transformations occurring within the criminal courts in Victoria, I spoke with Foley’s List barrister Shivani Pillai BA LLB. Shivani has over 20 years’ experience at the Bar and practices predominantly in criminal law as both Defence and Prosecuting Counsel. Beyond her role as a Barrister, Shivani volunteers as a community radio/ online television presenter for Mornington Peninsula Radio and is a founding member of ‘Artists of Kids Culture’, an art charity for disadvantaged children.

of Public Prosecutions, Victoria Legal Aid and similar government bodies as well as private criminal firms who necessarily are briefing their full-time solicitor advocates.”

Has all work stopped?

“There are still pleas, appeals and of course a plethora of bail applications, but the Bar is a big place and sadly there is not sufficient work to be spread across the hundreds of barristers, leaving aside solicitor advocates.”

What do you see as the impact of most Victorian court hearings occurring virtually?

What does a Barrister’s life look like in the pandemic landscape?

“I am predominately a ‘trial barrister’, so the bulk of my work as a self-employed barrister has evaporated for almost 6 months which has resulted in a lull in my otherwise extremely busy practice over the past 20 years at the Bar. This is a result of trials being suspended and because there are in-house counsel at the Office

“The courts appear to have realised through COVID-19 the practical and financial benefits of having remote hearings, where it is just and practicable to do so. Remote hearings offer the benefit of convenience, time and costs. I personally save over two hours a day in travel not to mention the costs of parking and the benefit to the environment in carbon emissions. As an advocate and trial barrister who is accustomed to addressing a jury it feels as though my wings have been clipped as I am less able to utilise and ‘showcase’ my advocacy skills. I miss the ‘cut and thrust’ of being in court and being able to address a

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where Counsel, the accused, witnesses, the media and members of the public attend remotely via Web-ex or a similar platform in cases where there is essentially no impediment to the administration of justice, procedural fairness or prejudice to any party. Further, certain hearings of an administrative nature may be able to be determined in chambers by Judges without an appearance in the future.”

Is this at the expense of transparency?

“Transparency and accessibility are not easily achieved in remote hearings due to web-links being required.

‘Traditional’ court proceedings in physical courts are readily accessible to the public and better enable justice to be ‘seen to be done’. It is vital that there is transparency of court proceedings and the public is not excluded, subject of course to ‘the closed court’ exceptions such as child sex offence matters.”

What has been keeping you entertained through the lull in your work?

To accommodate the pandemic restrictions, the COVID-19 Omnibus Emergency Measures Act 2020 and section 420D of the Criminal Procedure Act 2009 allow for ‘judge alone’ trials to take place. What does this mean for the justice system?

“One criteria for granting a judge alone trial is that it must be in the interest of justice. This has been defined broadly by the courts and includes the public interest, policy considerations and matters such as delay, and whether the issues to be determined meet community standards which are in the domain of a jury. I envisage that Victoria will retain ‘judge alone trials’ as part of the legal landscape post-COVID.” How will the post-COVID court differ from the preCOVID court?

“Speaking as a criminal barrister, I anticipate that we will return to attendance of all parties in person and resume jury trials. However, I expect that there will be a list in each court dedicated to remote hearings

“I still have sporadic appearances and never-ending legal submissions and memorandums. I seem to be busier than ever as my life as a barrister has metamorphosised into being a super-multi-tasker currently juggling home-schooling, court work, my voluntary roles and my allocated one hour of exercise which was never prioritised previously. Nevertheless, I assure you the courts are going to become very busy catching up with the backlog, particularly in criminal law. So, for soon-to-graduate law students interested in criminal law, you need to be ready, able and raring to go.”

Any last advice for law students?

Change is inevitable in life and with change comes opportunity. Take opportunities when they arise and create them where they do not exist. Don’t let go of your dreams and never stop learning. ____________________________________________ Meg is a Bachelor of Laws / Arts (Anthropology) student at Deakin’s Burwood Campus. In her spare time she enjoys exploring new wineries, reading and holidays in Sorrento (When we’re not in a real life version of The Walking Dead!)

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‘BEING COMMERCIAL’ - WHAT IT MEANS SU-ANNE TAN BURKE

How do law graduates ‘see the big picture’? We don’t have years of experience and we aren’t experts in everything.

Time and time again we hear recruiters and law firms say, ‘be commercial’. What does it mean?

Without being a mind reader, it’s hard to know because the words themselves aren’t clear without a context.

And haven’t you been engaged for legal not commercial advice? This demonstrates that the answer depends on the speaker’s intention. Depending on how much information you already have, it may be wise to clarify what the speaker is looking for before you attempt to answer.

If the speaker is asking you to provide practical legal advice in the client’s best interests, then a good way to start is to put yourself in the client’s shoes and see the big picture.

You’re right. No one can know or be an expert in everything… but you don’t need to. For a start, understand the client’s objectives and what’s important to them, for example, read their strategic goals, business plans, media releases and thought leadership content.

Their objectives and drivers may change over time as emerging issues impact their business. To help anticipate and prepare for potential impacts, keep up to date with major changes in the client’s industry.

The internet provides an overwhelming amount of information, and you could inundate your inbox and news feeds with subscriptions. To cut through the noise, be fussy about the credibility and value of information you consume. Personally, I don’t like minute-by-minute news updates because they suck up time and don’t present broader implications or analysis. Instead, I find weekly publications such as The Economist and The Guardian Weekly far more valuable because they capture and analyse major issues in a thoughtful and balanced way. You could read them cover to cover for an expansive (and enjoyable) intake

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ET CETERA - ISSUE 2 2020 of news and ideas, or take a more strategically selective approach to topics relevant to your work. However, don’t be too narrow if you’re trying to be selective because topics can have indirect or latent implications.

For example, if we rewind a decade, did anyone predict at the time that climate change risk would become a financial and legal risk, with implications for regulators and company directors?

Do you have tips on managing complexity when giving advice to clients?

I go by the mantra, ‘break it down, don’t let it break you down’.

that integrates with the client’s ‘big picture’. I’m not saying change your legal advice to make the client happy – please don’t do that! I’m saying, give your legal advice independently and clearly, with sound reasons and awareness of the client’s situation, whether it’s commencing litigation, approving funding for a project, entering into a joint venture or taking some other step that has implications including legal. Your job is not to make the decision – that’s for the client.

To make the decision, the client needs you to arm them with options that appropriately deal with risk, including legal risk, while leveraging opportunities presented by the situation.

To organise your thoughts in a presentable way (whether it’s legal or other advice you’re qualified to give), I recommend grouping information into key themes.

My graphic below aims to help you see the ‘big picture’ from a client’s perspective. It presents common factors that guide decision-making in a range of situations.

These aren’t the only factors but I have seen them commonly appear in private and public sector projects across industries. These factors may not be discrete either. There may be crossover or interaction between a combination of factors. For example, a company’s disregard for the law may negatively impact public perception of the company.

This graphic should help you see that ‘legal’ is only one factor in a myriad of other factors, and may not be the most important factor to the decision-maker within the client organisation. Understanding this should help you provide contextualised legal advice

In my view, if you can ‘see the big picture’ while demonstrating attention to detail in the advice you have been engaged to provide, that’s being ‘commercial’. ____________________________________________ Su-Ann is a lawyer and consultant at Proximity, an innovative professional services firm that provides integrated legal, commercial and other solutions.

Su-Ann wants you to know that it’s possible to survive a global crisis and come out fighting. She lived through the 2008 global financial crisis as a jobless graduate who learned how to create opportunities and get hired. For more on Su-Ann’s professional profile, find her on LinkedIn.

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HEARSAY: Law students often find themselves feeling stressed, tired and somewhat delirious.

On the bright-side, the grogginess of Law students make libraries, lecture theateres and seminar rooms fertile grounds for comedy.

Here is a selection of quotes we overhead throughout the trimester. We hope you laugh as much as we did, after all, the purest form of comedy is laughing at each others expense!

“How many gears does a car have?”

“Mine doesn’t have any, it’s automatic.”

“Is the time on Student Connect when the exam opens or closes?”

“Pain is temporary, but WAM is forever.”

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“You are Law students, you’re supposed to be the best and brightest and here you are throwing up peace signs to deal with your emotions. You guys are concerns.”

“As if I’m studying for an online exam. We literally have 48 hours to figure it out.”

“You’re gonna fail, just like last trimester.”

“Do you reckon employers would be impressed by a half-finished law degree?

Surely the fact that I passed Torts has to count for something. I’m not sure I can do another two years.”

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DLSS OCTOBER 2020