australasianlawyer.com.au Issue 3.4
THE LEGAL INDUSTRY’S
HOT LIST 2016’s hottest private practice lawyers working in the Australasian legal market
A SQUARE PEG Interview with legal legend Rabia Siddique
NEXT BIG THING The latest on the Perth legal market
IN-HOUSE AT TELSTRA Inside transcontinental legal job-sharing
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CONTENTS UPFRONT 04 Legal insight 06 Deals round-up
THE LEGAL INDUSTRY’S
HOT LIST
18 COVER STORY
HOT LIST
12 Appointments
PEOPLE 48 Designing disaster laws Gabrielle Emery on managing international response to disasters
42 FEATURES
AGENTS OF CHANGE
TMT lawyers on the more-for-less challenge
Australasian Lawyer reveals the hottest private practice lawyers working in the legal industry
14 Job-share across borders Telstra lawyers talk the logistics of job-sharing abroad
46 Running so they can Wotton + Kearney pro bono partner Heidi Nash-Smith on charity running
BUSINESS STRATEGY 52 The power of giving Why philanthropy makes good business sense
FEATURES
54 Psychological well-being: providing a helping hand
A SQUARE PEG IN A ROUND HOLE
How managers can keep well-being front of mind
Former legal officer in the British army Rabia Siddique on suing the British government
32
36 FEATURES
THE NEXT BIG THING This is what is keeping the post-mining-boom Perth legal market growing
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1
UPFRONT
EDITORIAL
Legal legends
I
t was 2005 and Rabia Siddique, a decorated legal officer in the British army, had barely made it out of a hostage situation in the Middle East alive. But it was how she took on the British government that turned out to be the real story. We were fortunate enough to interview Siddique – who in person was just as lively as her TED Talks on YouTube would lead you to believe – a woman with contagious energy, who won’t be scared off in her pursuit of justice. In this issue of Australasian Lawyer, we look at a number of legal legends taking the industry by storm. Though it’s on the rise in-house, the industry doesn’t yet seem to have its head fully around the idea of the legal job-share, despite the many benefits in flexibility and staff retention. Two Telstra lawyers are doing the unimaginable, countries apart. We spoke with Hong Kong-based Jessica Alder and Lucy Walker in Australia on the ins and outs of intercontinental job sharing.
from the Team at Australasian Lawyer
www.australasianlawyer.com.au AUGUST 2O16 EDITORIAL Editor Sasha Borissenko
SALES & MARKETING Sales Manager Paul Ferris
Production Editors Roslyn Meredith Bruce Pitchers
Marketing and Communications Manager Lisa Narroway
CONTRIBUTORS
Traffic Coordinator Lou Gonzales
Hannah Norton Ben Abbott Samantha Woodhill
CORPORATE
ART & PRODUCTION Design Manager Daniel Williams Designers Kat Vargas Marla Morelos Martin Cosme
Chief Executive Officer Mike Shipley Chief Operating Officer George Walmsley Managing Director Justin Kennedy Chief Information Officer Colin Chan Human Resources Manager Julia Bookallil
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UPFRONT
STATISTICS
Will your salary go up this year?
EXPECTING INCREASES OR WHAT TO EXPECT? In answer to a question about the overall movement in the respondents’ firms’ salaries anticipated for the next 12 months: 45% looked forward to increases above CPI, 32% expect increases at CP, 16.5% forecast increases below CPI.
When it comes to pay increases for legal practitioners, it’s a matter of location, location, location GEOGRAPHY IS ALL: legal practitioners in rural and regional areas earn less than their equivalents in the capital cities – that’s the message from the most recent iteration of the Legal Industry Salary Survey, which compiled responses from more than 250 firms and over 10,000 employees. The survey identified the fact that while a higher proportion of respondents from the eastern states report an expectation of salary
38%
level by which salaries are overall higher in capital cities
94%
of firms anticipate staff salary increases
11%
raises to at least the level of CPI, and that those expecting salary changes that outstrip CPI are also concentrated on the eastern coast, WA leads the field only in the level of anticipated wage freezes, or limited wage freezes. Another message from the survey: overall salaries in legal firms are on the way up, with an overall 2.8% increase anticipated, although that overall percentage growth represents a fall from 4.6% the year before.
88%
of firms use annual salary reviews
35%
32%
Wage Freeze Limited freeze CPI only Individually negotiated above CPI
72%
of participants report bonuses are offered at their firms
GENDER GAP?
SIZE MATTERS
Is there a pay gap along gender lines among legal professionals? For those who work in larger firms the answer is a resounding yes, with four out of five respondents in firms of 150 or more answering in the affirmative.
When the figures are analysed according to size of firm, a pattern emerges: almost 90% of large firms are likely to increase salaries at or above CPI; at the other end of the scale, the number is 74%. -
Wage freeze Limited freeze CPI only Individually negotiated above CPI
150
13% 40% 47%
39%
35% 43% 5%
25-74
27%
22%
75-149
Yes No Don’t know
9% 15%
1-24
34%
37% 43%
Source: ALPMA Australasian Legal Industry Salary Survey, 2016
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22%
WA
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17% 28% 46% Source: ALPMA Australasian Legal Industry Salary Survey, 2016
7% 16% 5% 21%
46%
16%
QLD 30%
SA
58%
2%
33% 4%
8%
58%
VIC
ACT
19%
51%
31%
67%
NSW 26%
FROM LAST YEAR
CITY-DWELLING PAYS
A comparison of the data in the same survey published in 2015 reveals that for legal practitioners overall salaries are up from the same time last year by just under 3%.
Across the board salaries are higher in capital cities; this was plain when the data was sorted geographically. The greatest discrepancy falls in the category of senior management: those in capital cities outstrip their regional equivalents by almost two-thirds.
8%
80%
7%
70%
6%
60%
5%
50%
4%
7.1%
3%
0%
63%
30%
2% 1%
40%
2.5% Solicitors/lawyers
20%
2.8% Paralegals/law clerk
34%
10% Executive and senior management
Source: ALPMA Australasian Legal Industry Salary Issues Survey, 2016
0%
14% Solicitors/lawyers
Paralegals/law clerk
Executive and senior management Source: ALPMA Australasian Legal Industry Salary Issues Survey, 2016
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5
UPFRONT
TRANSACTIONS
DEALS ROUND-UP Squire Patton Boggs on deal to create leading global lithium producer Squire Patton Boggs has acted for General Mining Corporation Limited on its merger with Galaxy Resources Limited, creating a premier global lithium producer with leading market assets. General Mining is an ASX-listed lithium production company whose primary assets are the right to earn, from Galaxy, 50% of the Mt Cattlin spodumene project in WA and an option to earn 50% of the James Bay spodumene exploration project. The merger sees the company join with Galaxy Resources, a lithium-focused resources company with assets spanning Australia, Canada and Argentina. The combined company will be a leading global lithium producer with international assets and strong networks in the key Asian lithium markets. The transaction values General Mining at approximately $216m, with the merged entity expecting to have a combined market capitalisation in excess of $700m.
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Value (A$)
Adviser
Client
Lead lawyer(s)
Ferrovial Servicios S.A. on successful takeover bid for Broadspectrum Ltd
>$768m
Allens
Ferrovial Servicios S.A.
Guy Alexander
Acquisition of Nextgen Networks and two development projects
$807m
Allens
Vocus Communications Limited
Mark Malinas, Robert Simkiss, Julian Donnan, Robert Pick, Fiona Crosbie
Canberra Metro Consortium on funding of the Canberra Metro’s Gungahlin to Civic light-rail project
$710m
Allens
The financiers to the Canberra Metro Consortium
Phillip Cornwell
OneVue and Diversa announce merger
$177m
Ashurst
OneVue Holdings Limited
Lisa Simmons
McCullough Robertson, – legal adviser to Diversa
Northern Territory Airports 2016 refinancing
$582m
Ashurst
Lenders: National Australia Bank Limited, Australia and New Zealand Banking Group Limited, Commonwealth Bank of Australia, Canadian Imperial Bank of Commerce, Westpac Banking Corporation Security Agent, CBA Corporate Services (NSW) Pty Ltd, Common Terms and Bank Agent, Westpac Banking Corporation, MetLife, USPP Noteholders, Prudentia
Martin Coleman, Kenneth Nguyen
King & Wood Mallesons
DeGrussa Solar $40m Project: hybrid solar/ battery/diesel power station
Ashurst
Pacific Energy Limited subsidiary, Pacific Energy (KPS) Pty Ltd
McCullough Robertson Bell Gully, – legal adviser to MinterEllison, Diversa Sullivan & Cromwell, Baker & McKenzie
Wellard syndicated facility with Intesa Sanpaolo S.p.A
Ashurst
Ocean Shearer Pte Ltd as Gaelan Cooney borrower, Wellard Ships Pte Ltd as guarantor, Wellard Limited as guarantor
Transaction
US$59m
Other firms involved
King & Wood Mallesons, Clayton Utz
Rajah & Tann Singapore LLP, King & Wood
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Value (A$)
Adviser
Client
Lead lawyer(s)
Other firms involved
Webjet Limited fully underwritten non-renounceable accelerated entitlement offer
$70m
Ashurst
UBS AG, Australia branch and Credit Suisse (Australia) Limited
Sarah Dulhunty
MinterEllison
Sale of half interest of Pelikan Artline joint venture to joint venture ACCO Brand
US$103m
Bird & Bird
Confidential
Lyle Abel
MinterEllison
Vodafone NZ and SKY NZ$3.4bn Network Television
Bell Gully
Vodafone Group and Vodafone New Zealand
James Gibson, Anna Buchly
Herbert Smith Freehills, Buddle Findlay
Blackstone investment in Partners Life
NZ$200m
Bell Gully
Blackstone
Glenn Joblin, Anna Buchly, Chris Goddard
Chapman Tripp
Sale of Online Republic to ASX-listed Webjet
NZ$85m
Buddle Findlay Online Republic and its shareholders
Grant Dunn
MinterEllison
Sale of Chevron South Asia Holdings Pte Ltd’s shares in Chevron NZ to Z Energy
NZ$785m
Buddle Findlay Chevron South Asia Holdings Pte Ltd
Simon Vodanovich, Lisette Hood
MinterEllison, Chapman Tripp
NZME listing
NZ$167m
Chapman Tripp NZME
Rachel Dunne, Kelly Baker & McKenzie McFadzien, Philip Ascroft
Infratil Ltd’s $392m acquisition of 48% of its Canberra Data Centres from Quadrant Private Equity
Chapman Tripp Infratil Ltd
Josh Blackmore, Sarah Denton
Virgin Australia’s $852m pro rata entitlement offer
$852m
Clayton Utz
Virgin Australia Holdings Limited Rory Moriarty, Rod Halstead, Stuart Byrne
KWM
Centuria Property Funds Limited’s $279m joint acquisition of The Zenith
$279m
Clayton Utz
Centuria Property Funds Limited's unit trust
Allens, MinterEllison
Transaction
Matt Anderson, Kathy Neilson
Allens, Linklaters, KWM, Gilbert & Tobin
Herbert Smith Freehills advises Growthpoint Properties Australia Limited on $166m acquisition of fully leased A-grade office building Located at 75 Dorcas Street, South Melbourne, the 11-storey building is 100% leased to several high-profile tenants, including ANZ, food conglomerate Mondelez and BMW. The newly renovated property forms part of Melbourne’s city-fringe office market. The Herbert Smith Freehills team was led by head of real estate Australia and Asia David Sinn, supported by solicitors Jean Liu and Emma Larkin. Constructed in 2002, the property offers substantial attractions for tenants, including a recent refurbishment, in 2015, and its location just 2km south of Melbourne’s CBD. The deal is yet another example of the significant work of Herbert Smith Freehills’ real-estate team and follows the team’s work last month advising S P Setia on a $101m acquisition of a Telstra exchange site in Melbourne’s central CBD.
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UPFRONT
TRANSACTIONS Value (A$)
Adviser
Client
Lead lawyer(s)
$158.5m
Clayton Utz
AMP Capital
Julie Levis, Carrie Rogers
DibbsBarker
S P Setia’s acquisition $101m of Telstra exchange site in Melbourne CBD
Herbert Smith Freehills
S P Setia
David Sinn
Arnold Bloch Leibler
Growthpoint’s acquisition of Victorian office building
$166m
Herbert Smith Freehills
Growthpoint Properties Australia
David Sinn
Origin Energy’s sale of the Mortlake pipeline
$245m
Herbert Smith Freehills
Origin Energy
Robert Merrick
Bank of America Merrill Lynch, King and Wood Mallesons
Licence awarded $209m to Maxgaming NSW Pty Ltd to operate the centralised monitoring system for gaming machines in NSW
MinterEllison
NSW government
Anthony Borgese, Nick Pascoe, Katrina Groshinski
DLA Piper
Acquisition by Iron Mountain of ASXlisted information storage provider Recall Holdings
$3.7bn
MinterEllison
Iron Mountain
Katrina Groshinksi, Michael Gajic, Ben Smith, Costas Condoleon
Weil Gotshal & Manges LLP
Sale by Brookfield of One Shelley Street (Macquarie Group’s headquarters in the King Street Wharf precinct) to Charter Hall
$525m
MinterEllison
Brookfield Office Properties
Kiri Purdy, Virginia Briggs
Allens
Tegal IPO
NZ$298.9m MinterEllisonRuddWatts
Tegal Group Holdings Ltd
Mark Stuart
MinterEllisonRuddWatts
Acquisition of Vector’s gas transmission and non-Auckland gas-distribution business
NZ$952.5m MinterEllisonRuddWatts
Advisor to purchaser’s financiers
Tom Fail, Steve Gallaugher
Bell Gully, Chapman Tripp
Transaction $158.5m acquisition of 71 Macquarie Street from AMP Capital
Tegel IPO A trans-Tasman team of MinterEllison and MinterEllisonRuddWatts lawyers advised Tegel on its successful IPO and dual listing on NZX and ASX. Tegel, a fully integrated poultry producer, is involved in the breeding, hatching, processing, marketing and distribution of poultry products across New Zealand, Australia, the Middle East, Asia and the Pacific. It was admitted to the official list of NZX and ASX in early May, with normal settlement trading on NZX and ASX commenced on 5 May 2016. “The transaction is significant as Tegel is one of the first NZ issuers to conduct a dual listing relying on the recently amended NZ securities law regime, as well as one of the first NZ issuers to seek admission to the official list of ASX relying on the new foreign exempt admission criteria for NZ companies on ASX,” said MinterEllison partner Daniel Scotti. “We congratulate Tegel’s management team, led by Phil Hand, on this milestone transaction.”
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Other firms involved
Firm Profile
EU-US PRIVACY SHIELD, BREXIT – WHERE TO NEXT FOR EUROPEAN DATA PROTECTION LAW? Arguments amongst UK and European politicians and privacy regulators could be dismissed as irrelevant to this end of the world. But Australian and New Zealand companies who operate in or are eyeing up Europe will need to keep up to speed with a number of recent changes to EU privacy laws. For those who follow developments in European data protection law, the European Commission’s vote to approve the EU-US Privacy Shield on 12 July 2016 may have been somewhat overshadowed by the result of the Brexit referendum just a few weeks earlier. It had already been a big few months in the world of European privacy law. The General Data Protection Regulation (GDPR), the set of rules which will replace the EU Data Protection Directive, was agreed in December 2015 and will come into force in May 2018. And the Court of Justice of the European Union declared in the Schrems decision in October 2015 that the Safe Harbour regime, under which US companies certified compliance with EU-standard data privacy practices, could no longer be trusted and was invalid. The Schrems ruling caused a scramble among US companies whose businesses involve the storage or handling of European personal information to put in place alternative means of meeting EU data protection requirements. For Australian or New Zealand businesses with customers in the EU, inboxes would have been full with urgent requests from US hosting providers, SaaS vendors and other suppliers to sign up to ‘Model Clauses’ based on the European Commission-approved standard contractual terms for transfers from EUbased data controllers to offshore data processors.
Meanwhile behind the scenes, privacy and trade regulators from the EU and US were working hard to develop a more permanent solution. The result is the Privacy Shield, claimed to be a beefed up version of Safe Harbour with stronger obligations on US signatory companies, clearer rights of redress and inquiry for EU citizens (including a dedicated ombudsperson), and assurances from the US government regarding access to data for law enforcement and national security purposes - an issue central to the Schrems decision. THE IMPACT OF BREXIT So, given the UK has voted to leave the EU, should we still care what happens to European privacy law over the next few years? Clearly, the answer is yes. First, Brexit is only relevant, to any degree, to businesses whose European operations are headquartered in the UK, or who use data processing equipment located in the UK. For those with offices or equipment in other EU member states, European privacy law should go on largely uninterrupted, including with reforms as scheduled. Second, it’s unlikely that there will be any substantial change in UK data protection law in the foreseeable future. Brexit has a two-year runway so the English Data Protection Act 1998 and privacy directives from Brussels will remain the law of the land in the short-to-medium term. Even in the long-term, post-Brexit it seems doubtful that the UK would choose a substantially different path from the rest of Europe. Significant commercial and trading hurdles could emerge if the European Commission found reason to declare UK privacy law ‘inadequate’, and compliance costs for UK businesses would dramatically
increase. The more logical view is that the UK would, in the same way Switzerland has done, maintain a set of privacy laws that it knows to be consistent and harmonised with EU standards, minimising the disruption for UK businesses with customers and trading partners elsewhere in Europe. However, the timeframe for Brexit means that UK businesses, and Australian and New Zealand companies who need to comply with UK data privacy law, will need to adopt practices compliant with the new GDPR when it is implemented in May 2018. So even as the UK is walking towards the exit, businesses will have to keep up with privacy law reform when the GDPR comes into force, and then re-adjust to whatever postBrexit privacy regime replaces it. The upshot is that it should largely be business as usual for Australian and New Zealand businesses in terms of the need for them to comply with European data protection laws. While the demise of Safe Harbour, its replacement with the Privacy Shield, the new GDPR and Brexit amount to a generation of reform and upheaval in the space of less than a year, it remains as important as ever for privacy compliance to remain near the top of the agenda for those operating in Europe. This article was written by Allan Yeoman (partner) and Keri Johansson (senior associate), who specialise in TMT and are based in the Auckland office of Buddle Findlay. Allan Yeoman DDI: +64 9 363 1029 allan.yeoman@buddlefindlay.com
Keri Johansson DDI: +64 9 358 7018 keri.johansson@buddlefindlay.com
www.buddlefindlay.com www.australasianlawyer.com.au
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UPFRONT
TRANSACTIONS Transaction
Thomson Geer advises oOh!media on Junkee acquisition Thomson Geer advised oOh!media on its successful acquisition of online publishing company Junkee Media, one of Australia’s fastest growing companies, boasting a readership of over 5.5m millennials each week. Led by Thomson Geer corporate partner Gaynor Tracey, oOh! successfully acquired 85% of the business at $11.05m, with the right to acquire the remaining 15% of the shares from the three remaining shareholders. Senior associate Madeleine Kulakauskas and lawyer Eunice Leung assisted Tracey on the Thomson Geer advisory team.
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Value (A$)
Adviser
Client
Lead lawyer(s)
Other firms involved
NZ Superannuation Fund: underwritten block trade in Z Energy
NZ$291m
Russell McVeagh
HRL Morrison & Co, Guardians of New Zealand Superannuation
Pip Greenwood, Hamish Beckett
Issue of ANZ Capital Securities
US$1bn
Russell McVeagh
Australia and New Zealand Banking Group Limited
Fred Ward, Rhonda Gregory
Tasman Bay Forests Company
NZ$370m
Russell McVeagh
Tasman Bay Forests Company (managed by Hancock Natural Resource Group, Inc)
David Raudkivi, Ben Paterson
Chapman Tripp
Vital Healthcare Property Trust: underwritten rights issue
NZ$160m
Russell McVeagh
Forsyth Barr Group Limited
David Raudkivi, Hannah Brown, Zoe Rodgers
Harmos Horton Lusk
Sale/restructure on NZ aspects of Toshiba Corp’s sale of its medical business to Canon Inc
US$5.9bn
Simpson Grierson
Toshiba Corp Japan
Michael Pollard
Clayton Utz, Nishimura & Asahi
Acted on the NZ$90m acquisition of Shore City Shopping Centre
Simpson Grierson
Precision Group of Companies (AU)
Greg Towers, Greg Allen
Bell Gully
Off-market takeover bid by Galaxy Resources Ltd of General Mining Corp Ltd
$286m
Squire Patton Boggs
General Mining Corp Ltd.
Simon Rear
Steinepreis Paganin
Synthomer Plc acquisition of adhesives and coatings business from Hexion Inc
US$226m
Squire Patton Boggs
Synthomer Plc
Campbell Davidson, Joshua Fitzpatrick
MinterEllison
oOh!media acquisition of Junkee Media
$13m
Thomson Geer oOh!media
Gaynor Tracey, Partner
OPUS Group sale of COS Printers
$11.3m
Thomson Geer OPUS Group
David Zwi, Partner
Global Capital purchase of 36% of UCW Limited
$6.5m
Thomson Geer Global Capital
Dan Kramer, Partner
Montech acquisition of Tetran
$9m (shares)
Thomson Geer Montech
Dan Kramer, Partner
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11
UPFRONT
MARKET MOVEMENTS
APPOINTMENTS QUEENSLAND EXPANSION OF NEXUS CONTINUES WITH APPOINTMENT OF MARK FOY
Presented by
PARTNER PROMOTIONS
Nexus Law Group has appointed Mark Foy as a consulting principal in the Queensland office. Based in Brisbane, Mark was most recently a special counsel with global firm K&L Gates, and was previously a partner at Dibbs Barker and McCullough Robertson, acting for developers on real estate transactions and due diligence, including fuel-service centres, residential high-rise projects and development of new retail centres. On joining Nexus, Mark says he was looking for an innovative law firm that was achieving real reform in the delivery of legal services. “Nexus appealed to me straight away, as it is the only business in the market undertaking a positive restructure of the law firm itself,” Mark said. “Its practice model allows me to generate a practice for myself, and gives me complete freedom to choose what work I undertake, when I do it and what I refer out. I set my own fees for my clients, without getting caught up in autocratic approval processes.”
FIRM
LAWYERS PROMOTED
Allens
Chris Blane, Benjamin Downie, Linda Govenlock, Chung Le, Scott McCoy
Macpherson Kelley
Prath Balasubramaniam, Stefanie Orlando, Sebastian Renato
MinterEllison
Tom Fletcher, Stephen Knight, Adrian Rich, David Moore, Geoff Shaw, Joelle Grover, Alison Sewell, Nicholas Pascoe, Natalie Stuart-Bell, Jackie Su, Paula Robinson, Adam Merlehan
Russell McVeagh
Kylie Dunn
Simpson Grierson
Matt Conway, Stuart Evans, Andrew Matthews
LATERAL PARTNER APPOINTMENTS NAME
PRACTICE AREA
LEAVING
GOING TO
WEBB HENDERSON WELCOMES TWO HOME-GROWN LAWYERS INTO THEIR PARTNERSHIP RANKS
Gerard Breen
Insolvency & restructuring
Johnson Winter & Slattery
Mills Oakley
Franki Ganter
Corporate
MinterEllison
Allens
Kristy PeacockSmith
Employment
K&L Gates
Bird & Bird
Helen Smith
Dispute resolution
Webb Henderson is pleased to announce the appointment of Ish Omar and Tom Bridges as partners of Webb Henderson. Ish practises as a telecommunications and media lawyer and joined Webb Henderson in January 2011. Ish works closely with partner Angus Henderson and has been a key member of Webb Henderson’s TMT practice for many years. Tom, a competition and litigation specialist, joined the firm in 2013 with Andrew Christopher. Ish and Tom join a number of other home-grown partners of Webb Henderson. Our growth has been principally driven by the expertise and market reputations of our senior partners. Commenting on the appointments, Webb Henderson founding partner Angus Henderson said: “Our success to date and our expected growth path over the long term provides opportunities for our best young lawyers to develop their careers and move through to partnership.”
Simpson Grierson
OTHER NAME
FIRM/COMPANY
TITLE
Mark Foy
Nexus Law Group
Consulting principal
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SENIOR ASSOCIATE APPOINTMENTS
Nicole Franklin, Christine Wright, Kristen Giansalvo, Anne Bowler, Sally-Anne Eldridge, Amy Surkis, Emily Archer, Kristy Brockwell, Ben House, Daniel Bell, Daniel Lauren Donazzan, Chris Hu, Esmond Prowse, Tom Kearney, Elisabeth Moran, Jordan Engwerda, Tara Linn, Eric White, Haydn Flack, Helen Lauder, Wesley Lalich, Hannah McLeod, Jayne Treherne, Matthew Kenny, Steve Forster, Stacey Rolfe, James Stanton, Joseph Lam, Linda Kelleher, Eveline Rygorowicz
FIRM
LAWYERS PROMOTED
Allens
Rod Aldus, Miranda Cummings, Monique Donato, Tarsha Gavin, Anfeng He, Darren Kamil, Jasmin Last, Yan-Lin Lee, Lisa Lucak, Andrea Moffatt, Priyanka Nair, Felicity O’Brien, Amanda Richman, Danielle Thompson, Lincoln Verass, Jillian Williams
Bell Gully
Philip Leightley
MinterEllisonRuddWatts Katrine Kofoed, Chris Baldock
Bird & Bird
Rebecca Currey, Kate Morton
Macpherson Kelley
Buddle Findlay
Oliver Gascoigne
Rebekah French, Sarah Colmanet, Dennis Batur, Craig Doherty, Stephen Worthley
Carter Newell Lawyers
Beau Mollinger
Simpson Grierson
Luis Cunha
Thomson Geer
Laird Macdonald, Lisa Marcus, James Walshe
Chapman Tripp
Kirsten Todd, Asha Trotter, Luke Ford, Phoebe Gibbons, Jared Hold, Grace Rippingale, Daniel Street, Peter Sygrove
Clayton Utz
Natasha Blake, David Blencowe, Sally Campbell, Patrick Cranley, Christopher Cull, Bryony Dewar-Leahy, Irene Drossinos, Stefanie Faubel, Armin Fazely, Samuel Fiddian, Amy Granger, Christopher Hibbard, Flora Innes, Patrick Lawler, Sofia Marchesi, Lucinda McPhee, Kathy Neilson, Edwina Renshaw, Peter Rugg, Amanda Ryan, Fiona Schmedje, Caitlin Sheehy, David Suttner, Masatoshi Suzuki, Elizabeth Tan, Mark Teys, Alice Zheng
DLA Piper New Zealand
Neisha Mistry, Caroline Halliday, Victoria Knell, Emma Manohar, Jonathan Pitts, Emma Sweet, Shane Swinerd
Catherine Adamson, Michael Compton, Anna Coroneo, Bailee Walker, James Braithwaite, Natalie Colbert, Breanna Hamilton, Sally-Anne Ivimey, Suzannah Morris, Mark Smyth, Katherine Dommerson, Amanda Lyras-Jones, Sam Cooper, Rebecca Elgar, Melissa Rubbo, Lauren Whitehead, Emma Zarb, Anna Jaffe, Annabel Herbert Smith Freehills Sampson, Emily Coghlan, Rachelle Downie, Amelia Edwards, Matthew Eglezos, Jeremy Herz, Chelsea Roche, Courtney Ford, Lilly Knorr, Adam Lambert, Melanie Smith, Rachael Wong, Paul Marshall, Alex Zolotarsky, Melissa De Abreu, Sue Nicholas, Owen Alcorn, Maja La Rosa, Danielle T McCarthy, Scott White, Bianca Janovic, Sarah Beer, David Castelino, Freya Hillier
MinterEllison
Paul Duke, Eibhlin Hamman, Sophie Croft, Suzanne Marlow, Amy Dunphy, Dorothea Lueders, Matthew Neville,
Russell McVeagh
Daniel Williams, Emmeline Rushbrooke
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FEATURE
FLEXIBLE WORKPLACE
JOB-SHARE ACROSS BORDERS While the job-share concept is not new to in-house legal teams in Australia, there are few examples of lawyers sharing a job across borders. Telstra’s Lucy Walker, together with Hong Kong-based Jessica Alder, is putting intercontinental collaboration to the test 14
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TELSTRA IN-HOUSE counsel Jessica Alder says she’s met many female lawyers who would relish the opportunity to have a job-share arrangement, but such opportunities are not common or an accepted norm in Hong Kong. Her job-share partner, Lucy Walker, says despite overwhelming benefits for firms, clients and lawyers, her expectation is “that there may be some reluctance to the idea of job-sharing among lawyers in private practice due to the difficulties in managing budgets and billables.” The Sydney-based in-house counsel started a legal job-share arrangement with Alder six months ago, after Walker returned to work following maternity leave after the birth of her third child. “I had worked with Jess before going on maternity leave on various projects and felt that we would be a good match for a job-share due to our complementary working styles,” says Walker. “Jess was happy to give the job-share a try and six months in we both agree that it
has allowed us to achieve a balance between work and family life.” Having previously worked part-time, Walker says the job-share has been by far the best arrangement in terms of managing to
working during Jess’s half of the week, I do have time to reconsider and refresh my thinking about complex matters I may have been working on. I can then discuss those ideas with Jess when I return to the office.
“There is a lot of research that shows how productive thinking-time away from the office desk can be” Lucy Walker balance family life while maintaining a good client base with quality work.
Job-share benefits Walker points out that while the advantages for the working mum are self-evident there are also advantages for employers. “There is a lot of research that shows how productive thinking-time away from the office desk can be. While I’m not technically
“Hopefully there will be more examples of job-share arrangements in both in-house legal environments and in external firms as organisations become aware of the benefits it can offer to both employees and employers.” If anything job-sharing helps minimise the contact a lawyer needs to have with clients on non-working days, she says. But critical to the women’s success has been the widespread support from their clients, the
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FEATURE
FLEXIBLE WORKPLACE
JESSICA’S TIMELINE:
2005 Graduated from Monash University, Melbourne
2006 - mid 2011 Solicitor, Mallesons Stephen Jaques (Melbourne and Hong Kong)
mid 2011 - November 2011 Secondment, Telstra International Group November 2011 - present Legal counsel, Telstra
LUCY’S TIMELINE:
1999 Graduated from university
1999 - 2004 Worked at Blake Dawson and Waldron as a solicitor and then senior associate
2004 - 2011 Worked at Reach (Telstra and PCCW joint venture) initially as senior legal counsel and then as deputy general counsel
October 2015 Now working in job-share arrangement with Jess Alder (who is based in HK)
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2011- October 2015 Legal counsel for Telstra International Group (working on a part-time basis, initially three and then four days per week)
wider Telstra legal team and the company itself. Alder says within the domestic legal team there were already successful examples of job-sharing arrangements. “Telstra Legal is very open to challenging traditional ways of working for the benefit of the company and employee, and we found that the business and our colleagues in the international legal team welcomed our new working relationship.” Alder believes that her clients benefit from her collaboration with Walker and the varied experiences they bring. “I enjoy the opportunity to discuss complex legal issues with someone as invested in the work as I am. I’m really enjoying the balance between work and family life, too.” Telstra Global human resources business partner Lily Bednikov says the duo’s job-share is an excellent example of Telstra’s All Roles Flex policy, which allows its employees to work flexibly, any place, anytime, anywhere. “We have strong uptake of this policy globally, and it drives excellent employee engagement across the company.”
Logistics Alder covers the first half of the week from the Hong Kong office, while Walker completes the second half from the Sydney office. Each lawyer prepares a brief handover note that includes all work in progress. Walker says clients are clear that both lawyers work as a job-share and their respective working days are set out in their electronic signatures and out-of-office tools. “We know we have to offer a consistent, high-quality experience for our clients and
the business. We always aim to make sure clients are not forced into positions where they find themselves providing the same information and instructions to both lawyers on separate occasions.”
regulatory and transactional advice. A typical day would involve internal meetings, collaboration with internal clients and drafting advice, she says. “One aspect that we both really enjoy
“I enjoy the opportunity to discuss the complex legal issues with someone as invested in the work as I am. I’m really enjoying the balance between work and family life, too” Jessica Alder According to Alder, the pair work on a broad range of matters for the international business. This means anything from advising the business on sales, marketing and procurement contracts to providing
is having the opportunity to collaborate and to get each other’s perspective on the same matter. The least favourite aspect is collectively having to juggle everything in the 4.5 days that we work.”
The key to job-share success Walker says their job-share thrives because their working styles are complementary; both women are committed to making the job work for the company and each other, and underpinning it all is the support of Telstra’s management. Gilbert + Tobin partner Peter Waters has worked with the pair and says it’s been long said that technology will be transformative in the workplace, but the industry continues to imagine jobs as slots occupied by one person in one place. Walker and Alder’s arrangement is indicative of the fact it is not hard to develop something different. “By applying some common sense operating rules between themselves, they have created a seamless experience for their internal clients and external service providers, although they work thousands of kilometres apart. Digital disruption does not have to be painful.”
brilliantly different At Holman Webb, over half our partners have joined us from in-house and general counsel roles. We know the demands and pressures of corporate life. So if you’re looking for a brilliantly different law firm with real business instinct, visit us at www.holmanwebb.com.au
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HOT LIST
THE LEGAL INDUSTRY’S
HOT LIST
Australasian Lawyer reveals 2016’s hottest private practice lawyers working in the Australasian legal market
Supported by
THIS FEATURE seeks to profile lawyers who have stood out among their peers in some way. It’s not all about deals. All manner of achievements were considered. These include non-transaction areas, involvement in landmark cases or judgements, pro bono work, or a result that just defied the odds. Lawyers featured in the list could also have simply been water-cooler talk, a result of having been involved in something
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that, from an industry standpoint, was interesting or amusing. Of course, being included in a list such as this is a significant achievement, but we should also remember that, for one reason reason or another, many commendable lawyers never receive such accolades. Thus, Australasian Lawyer’s Hot List does not purport to be an exhaustive listing of meritorious achievement. Lawyers were selected for this feature based on submissions received from firms. >>
NAME
PAGE COMPANY
Kerry Anderson
19 19 20 20 20 20 21 21 21 21 22 22 22 22 22 23 23 23 24 24 24 24 25 25 25 25 26 26 26 26 27 27 27 28 28 28 28 28 29 29 29 29 30 30 30 30
Caroline Atkins Astrid Beemster Michelle Blackburn Valeska Bloch Brendan Brown Peter Chemis Scott Charaneka Maximillian Chung Brian Clayton Daniel Creasey Alissa Crittenden Tom Fail Scott Farrell Emily Gerrard James Gibson Grant Guenther David Hoare Richard Johnson Nathan Kennedy Jeremy King Tim Lange James Lawrence Rebecca Magee Lauren Magraith Kelly McFadzien Mark Morgan Heidi Nash-Smith Dr Teresa Nicoletti Jason Opperman Nola Pearce Colleen Platford Michael Pollard Stephen Quinn Astrid Raetze Simon Rear Craig Rogers Tae Royle Tony Ryall Joseph Scarcella Siabon Seet Belinda Sigismundi Nathanael Starrenburg Luke Westmore Juliana Warner Tal Williams
DLA Piper New Zealand DLA Piper Australia DLA Piper Australia Corrs Chambers Westgarth Allens Russell McVeagh Buddle Findlay Thomson Geer Hall & Wilcox
KERRY ANDERSON DLA Piper New Zealand
Chapman Tripp Colin Biggers & Paisley Clayton Utz MinterEllisonRuddWatts King & Wood Mallesons Allens Bell Gully Macpherson Kelley Russell McVeagh Wotton + Kearney Hall & Wilcox Corrs Chambers Westgarth Piper Alderman Piper Alderman Clayton Utz Baker & McKenzie Chapman Tripp Colin Biggers & Paisley
Kerry Anderson is one of New Zealand’s leading legal specialists in the local government and resource management sectors. Anderson’s strategic thinking and problem-solving skills are invaluable to DLA Piper and her clients. She and her team are highly regarded in local government and resource management circles. She specialises in large infrastructure projects, usually on behalf of government or local government clients, including the men’s prison in Manukau and all roads of national significance; in the Wellington region, such as Transmission Gully and Basin Bridge. Anderson is also leading the team on the Wellington Regional Plan review and the runway extension at Wellington airport. She is ranked as a leading environment and resource management lawyer in Chambers Asia-Pacific guide 2016 and is noted for her work on behalf of local government bodies during all stages of transportation and other infrastructure projects as diverse as roads and waste-water treatment facilities.
Wotton + Kearney Piper Alderman K&L Gates Carter Newell lawyers Gilbert + Tobin Simpson Grierson DLA Piper New Zealand Baker & McKenzie Squire Patton Boggs King & Wood Mallesons Ashurst Simpson Grierson Ashurst Gilbert + Tobin Macpherson Kelley Harmos Horton Lusk Limited Mills Oakley Herbert Smith Freehills
CAROLINE ATKINS DLA Piper Australia
Caroline Atkins is widely recognised as one of the leading government IPT lawyers in Australia. Her opinion on issues such as procurement strategy innovations and effective performance management frameworks is sought after by a wide range of federal agencies. Atkins is a highly regarded major government procurement specialist and contract negotiator. She has more than 30 years’ experience in this field, making her one of the most experienced government IPT lawyers in the market. Atkins advises federal entities on major and complex ICT procurements, such as outsourcing and software/cloud services agreements, systems integration and whole-of-government technology services panel and volume sourcing arrangements.
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HOT LIST
VALESKA BLOCH
ASTRID BEEMSTER
Trailblazers
Beemster is a standout lawyer in the real estate sector. She offers clients a powerful mix of technical expertise, commercial acumen, deep sector knowledge and diamond-strength clarity in complex transactions. She advises across a variety of sectors and asset classes. She acts for some of the biggest names in real estate in relation to high-value acquisitions (at asset and fund level) and disposals, complex leasing transactions (landlords and tenants) and developments. Beemster led one of the largest real estate transactions in Sydney’s history – 420 George Street, Sydney acquisition ($600m) – and the disposal of an industrial portfolio ($250m).
Bloch is co-founder of Allens Accelerate, a market-leading legal practice supporting the Australian start-up community with a range of free and cost-effective legal documentation, advice and policy commentary. Allens Accelerate has advised more than 50 start-ups since its launch, with its A-suite documents downloaded more than 1600 times. She also co-authored Blockchain Reaction, Allens’ landmark report on distributed-ledger technology and blockchain, which was the first major report on the topic to be released by an Australian law firm. Bloch specialises in the procurement and development of large-scale ICT platforms and telecommunications projects, as well as new and traditional media transactions, privacy and data management.
DLA Piper Australia
BRENDAN BROWN
Allens
Russell McVeagh
Brendan Brown heads Russell McVeagh’s tax team and has recently been at the forefront of a number of the most important developments affecting the New Zealand market. He has led the Russell McVeagh team acting on a number of significant tax cases before the courts, including Westpac’s successful application for judicial review of Inland Revenue’s refusal to exercise its power to amend certain tax assessments, which is now the top authority on the New Zealand Inland Revenue’s re-assessment power. He is regularly consulted on emerging issues and recently advised the major banks on the tax implications of the new Basel III-based capital standards.
MICHELLE BLACKBURN Corrs Chambers Westgarth
Over the past 12 months, Michelle Blackburn has provided key advice on regulatory issues related to the livestock exports industry. The complex export regulatory regime has undergone significant reform in recent years in response to trade and animal welfare issues. Her work on this and on other innovative agribusiness proposals has positioned her as a pre-eminent lawyer in the increasingly important area of agribusiness approvals. Blackburn is also a leading expert in advising on the environment, planning and landaccess aspects of major development and infrastructure projects. Combining expert technical knowledge with an approachable manner, Blackburn provides high-quality advice that takes into account the full suite of clients’ planning and environmental issues.
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PETER CHEMIS
MAXIMILLIAN CHUNG
Buddle Findlay
SCOTT CHARANEKA Thomson Geer
Charaneka acts for many of the largest financial institutions in Australia, including three of Australia’s largest six super funds. He recently acted for QSuper on the launch of its own life-insurance company, QInsure. This landmark deal is expected to be the catalyst for other funds to follow suit. His other recent significant transactions include advising AustralianSuper on the sale of its holdings in Superpartners and on the redesign of its current benefit arrangements. Charaneka is an editor of the LexisNexis Superannuation Law Bulletin and leads the team that provides ASFA’s quarterly regulatory updates and its national quarterly masterclasses.
Hall & Wilcox
Peter Chemis has been a leading employment and industrial relations partner at Buddle Findlay for 23 years and has led the firm as national chairman for the past 10 years. The national chairman position is subject to an annual vote of partners, and his 10 years in the role demonstrates a remarkable commitment to one of New Zealand’s top legal firms and an impressive period of leadership. Chemis has led Buddle Findlay through significant events and change, including the GFC, the All-of-Government procurement process, the Christchurch earthquakes and making important changes to the partnership and how it operates. Largely as a result of these changes, the firm’s revenues have increased significantly in recent years.
Chung advises on domestic and crossborder transactions, including mergers and acquisitions, primary and secondary market capital raisings, corporate restructures and corporate governance matters. He has been instrumental in cementing the firm’s presence in the start-up, innovation and technology sector, including the recent listing of Netccentric Limited, a Singaporean tech company, on the ASX. He exhibits outstanding leadership qualities and legal service excellence and is valued by clients for his practical and down-to-earth approach. He is always exploring new opportunities to grow the firm’s profile in line with its Smarter Law strategy and drove the Hall & Wilcox team at Westpac’s recent BlockHack16 innovation initiative on the applicability of blockchain technology.
BRIAN CLAYTON Chapman Tripp
Previously the first Kiwi partner at prestigious New York law firm Shearman & Sterling – with positions also held at leading international firms in London and Melbourne – Brian Clayton is a sought-after specialist construction and projects lawyer and a partner at Chapman Tripp. He has worked on many significant projects in New Zealand over the past 12 months, at a time when the industry is noting record levels of activity. At last count, he had worked on construction projects worth NZ$100bn. Some highlights from the past 12 months include advising the Ministry of Health on the major redevelopment of Burwood and Christchurch hospitals and the developer of a large project-financed fertiliser plant in Taranaki.
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HOT LIST DANIEL CREASEY Colin Biggers & Paisley
Creasey is a leading pro bono and responsible business lawyer. He was instrumental in establishing the Colin Biggers & Paisley Foundation whose core strategy is to promote and protect women and children’s rights in Australia and abroad. Since 2015, the foundation has booked over 10,319 pro bono hours, totalling more than $3.6m in value. The foundation collaborates with a number of charitable organisations and undertakes projects focusing on human rights, domestic violence, Indigenous communities, women’s legal services and youth advocacy. Internal initiatives include staff volunteering leave, a coordinated workplace giving project, and fee credit for pro bono hours.
ALISSA CRITTENDEN Clayton Utz
Restructuring and insolvency senior associate Alissa Crittenden has advised on a number of significant commercial and insolvency litigations. She recently co-led the Carpenter International matter, a legally and factually complex administration. This was a significant case that resulted in judicial pronouncements on previously unconsidered areas of intersection between insolvency and personal properties law. Crittenden is also part of the core team currently advising on the high-profile Nexus Energy administration. Clayton Utz acted for the deed administrators in their application to transfer all of the issued shares in the company under a relatively untested provision of the Corporations Act 2001 (Cth).
SCOTT FARRELL
King & Wood Mallesons Rainmaker
Renowned for venturing into unchartered waters, Scott Farrell was recently appointed by the Prime Minister to Treasury’s Fintech Advisory Group and was named one of Asia’s top-10 most innovative lawyers by the Financial Times. Farrell transcends the title of lawyer. He works in partnership with leading national and international financial regulatory bodies and financial institutions to develop new financial market infrastructure, create new financial structures and products and even draft new laws. Most recently Farrell and his team developed their own smart contract. Titled the DnA Smart Contract, it is an innovation that converges artificial intelligence with human intelligence in a way that creates real value for clients.
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TOM FAIL
MinterEllisonRuddWatts
Tom Fail’s several years of international experience acting on project finance transactions across Asia has helped many “NZ first of type” projects get funded. He has led the firm’s team on the first PPP to close in New Zealand (Hobsonville Schools PPP), has led the firm’s team on its roles on all the five following PPPs in New Zealand to date. Recently, he was instrumental in developing/negotiating the finance and contractual structure for the project financing of the South Island’s large Central Plains Water irrigation project. He’s widely recognised by international directories for his market-leading work solving difficult project bankability issues.
EMILY GERRARD Allens
Pillars of the Community
Gerrard is co-head of Allens’ Climate Change Group and works with clients to understand the impact of climate change on their businesses. She advises on environmental regulatory and compliance matters, including the Australian government’s Emissions Reduction Fund, water rights and participation in native vegetation, biodiversity, carbon and water markets. She volunteers one day a week with the National Indigenous Climate Change Project, a collaboration between corporate Australia, Indigenous peoples and other experts about climate change and participation in carbon markets. In 2015, Gerrard attended the Paris Climate Conference (COP21) and spoke on a panel at UNESCO’s headquarters.
GRANT GUENTHER Macpherson Kelley
JAMES GIBSON Bell Gully
James Gibson is one of New Zealand’s leading M&A and equity capital markets lawyers. He is currently advising Vodafone on the NZ$4bn+ merger of Vodafone New Zealand and Sky Network Television. He recently advised the joint lead managers on the NZ$300m float of Tegel and sale agents on the NZ$700m block trade of Z Energy shares by NZ Superannuation Fund and Infratil. He is also a regular adviser to global and Australasian private equity funds making investments in New Zealand.
Guenther started at the firm as an article clerk in 2007 and was promoted to principal in 2015. In his first year as principal, he has taken on the role as national head of the firm’s foreign owned subsidiary and real estate industry groups. He also heads the firm’s commercial practice in the Dandenong office, leading a team of 11 fee earners. He is passionate about helping businesses in Melbourne’s south east and in promoting their significant contribution to the Victorian and Australian economy. He acts as lead advisor on many of the firm’s merger and acquisition transactions involving medium and large privately owned businesses. His clients value his pragmatic and commercial approach. His proactive style is particularly effective as clients are often undertaking a sale or acquisition for the first time and are new to the process.
DAVID HOARE
Russell McVeagh
David Hoare is chair of the firm’s board of management and widely respected as the New Zealand corporate legal adviser of choice for a number of the firm’s premier clients, including Pacific Equity Partners, Cheung Kong Infrastructure, Woolworths and Lion. He recently acted for Pacific Equity Partners on two major acquisitions – Academic Colleges Group and Manuka Health – as well as for one of the bidders for Vector’s gas assets. He also acted for Lion on its acquisition of the Panhead brewery, and led the New Zealand team on the US$6.3bn Staples/OfficeMax merger and the US$67bn Dell/EMC merger.
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HOT LIST
NATHAN KENNEDY Hall & Wilcox
RICHARD JOHNSON Wotton + Kearney
Since joining Wotton + Kearney as a senior associate in February 2015, Johnson has had a meteoric career rise. His focus since joining the firm has been to increase the firm’s public and product liability practice. He was promoted to special counsel in January 2016, and invited to join the partnership in July 2016. Johnson has practised solely in insurance law and litigation for over 13 years. He has advised on large-scale and complex issues in respect of defence of injury and property damage claims, first-party loss claims, subrogated recovery claims and on policy coverage.
Nathan Kennedy is a passionate supporter of pro bono and community initiatives. He was recently appointed to the new role of director, pro bono and community, at Hall & Wilcox. Kennedy is an expert on human rights and social justice, holding an LLM in this area. He volunteers regularly at the Marrickville Legal Centre and the Refugee Advice and Casework Service and has brought substantial pro bono work to the firm through his connections. Kennedy previously worked with the National Children’s and Youth Law Centre and attended the UN as part of the Child Rights Taskforce. He has held several leadership roles with Australian Lawyers for Human Rights, including the past two years as president. Kennedy will be responsible for developing and implementing the national pro bono strategy and business plan for the firm.
JEREMY KING
Corrs Chambers Westgarth
Jeremy King is a partner in the banking and finance team and the chairman of Corrs’ pro bono and community committee. He is a passionate and outspoken proponent in the area of social finance and impact investment. His pro bono work covers renewable energy projects, humanitarian and refugee issues, Indigenous health and welfare, homelessness and social housing, recidivism, disability services and mental health issues. His work in the sector includes advising Save the Children on its joint venture with Deakin University to establish the Centre for Humanitarian Leadership.
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TIM LANGE
Piper Alderman
Tim Lange is an employment relations partner with over 15 years’ experience. For the past 24 months, he has been acting pro bono for three stevedores regarding an anti-bullying order against a union now found to have pressured members and employees into compliance. This is the first successful case establishing that unions as well as employers are exposed to antibullying orders for unreasonable conduct directed at pressuring employees to join unions and comply with union directives. In addition to being head of Piper Alderman’s national employment team coupled with a high-performing practice, Lange has personally accumulated over 380 hours in pro bono legal advice. Numbers aside, the success of Lange’s pro bono practice comes from an attitude of heart.
JAMES LAWRENCE Piper Alderman
Lawrence has quickly established himself as the go-to expert in relation to the increasing demand for commercial use of drones, with the devices now being used across myriad industries. He has advised companies in the property, insurance, energy and resources and hospitality sectors on the legal aspects of being able to use drones, including compliance with the various regulatory frameworks, intellectual property, privacy and liabilities. He recently presented at a leading national energy and resources conference on the emerging use of drones in the oil and gas sector. He has also authored numerous articles and has been published in a number of industry publications, including Engineers Australia magazine.
REBECCA MAGEE Clayton Utz
Restructuring and insolvency senior associate Rebecca Magee advises on insolvency and commercial litigation issues. She recently co-led the Carpenter International case, a significant matter that restates the leading PPSA principle concerning the late registration of a security interest. The case follows her earlier precedent obtained in the Arcabi coins matter, which also provided precedent as to the nature of a registrable interest and defined a consignment interest.
KELLY MCFADZIEN Chapman Tripp
LAUREN MAGRAITH Baker & McKenzie
Magraith is one of the country’s leading ECM lawyers. She has a unique professional skill set, having previously spent eight years at a global investment bank in both legal and investment banking roles, along with private practice roles in top-tier global law firms. Magraith has worked on some of Australia’s largest capital markets transactions during her career. Since joining Baker & McKenzie as a partner at the end of 2015, she has successfully advised a number of issuers and investments banks, including: APN News & Media on its $180m entitlement offer and demerger of NZME; the underwriters of National Storage REIT’s $260m placement and entitlement offer; Mantra Group’s $107m institutional placement; Aconex Limited’s $135m institutional placement; and Qube Holding’s $494m entitlement offer to fund Qube’s participation in the $9bn takeover of Asciano. She is working to balance her career with her role as a mother of two small children and is passionate about promoting and supporting women in the legal profession.
Chapman Tripp partner McFadzien has helped reshape New Zealand’s media landscape this year by advising NZME on its demerger with APN – the Australasian media conglomerate – and subsequent NZX listing. She specialises in commercial contracts and transactions, also projects involving technology, infrastructure and outsourcing, intellectual property and long-term services and procurement arrangements. She regularly advises clients on data protection and big-data issues and over the past 12 months has spent a lot of time advising on issues arising from emerging technologies, including the Reserve Bank’s proposed outsourcing policy reform, cloud services in regulated sectors, cybersecurity issues, blockchain technologies and investments into crowdsourcing and peer-to-peer platforms.
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HOT LIST MARK MORGAN Colin Biggers & Paisley
As a partner in one of the largest project conveyancing groups in Australia, Morgan has become a passionate advocate of e-contracts. In 2015, he played a pivotal role in launching the legal practice’s e-conveyancing service utilising the DocuSign platform, and hundreds of paperless contracts have now been entered into via this remarkable service. He has appeared on Sky News and has addressed numerous seminars and written many articles on the e-contract product. He has also represented the nine Australian real estate institutes in a joint submission to all Australian attorneys-general calling for reform of the national electronic transactions scheme.
HEIDI NASH-SMITH Wotton + Kearney
Heidi Nash-Smith has always had a passion for pro bono work and was the driving force behind the establishment of W+K’s pro bono and corporate social responsibility program. In 2016, she was appointed as the firm’s first dedicated pro bono partner. Her leadership and passion has enabled W+K to dramatically increase its participation in pro bono. She leads by example, participating in legal clinics, working on pro bono cases and leading W+K’s CSR initiatives, including taking a team to Kenya this August to work with the charity So They Can, and fundraising by participating in the Masai Mara Marathon.
DR TERESA NICOLETTI Piper Alderman
As a lawyer and scientist with more than 20 years’ experience, Dr Nicoletti provides legal, regulatory and commercial advice to a diverse array of clients across all health sectors. She is actively engaged in discussions with Commonwealth, state and federal health departments, to press for the legislative changes required for a medicinal cannabis industry to lawfully operate in Australia. Noting the important therapeutic benefits of medicinal cannabis, she has been influential in the federal government’s announcement of changes to the legislation to enable a farm-to-pharma model for medicinal cannabis, permitting the cultivation and extraction of medicinal cannabis and the manufacture and supply of pharmaceutical-grade medicinal cannabis products for therapeutic end-use. As a result of her work, she was recently awarded Partner of the Year in Health.
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JASON OPPERMAN K&L Gates
Opperman leads K&L Gates’ restructuring and insolvency practice in Australia. His elevation to a practice group coordinator in K&L Gates’ global finance team recognises Opperman’s commitment to transplanting the skills he developed while leading a tier-one practice at his previous national firm to a global stage. Under Opperman’s leadership, K&L Gates’ restructuring and insolvency practice is undeniably a growing force in Australia’s finance industry. In the past 12 months, the team has been bolstered by former HDY partner Leonard McCarthy and special counsel Zina Edwards, who joined from Herbert Smith Freehills. He has recently advised on a number of major matters, including Australasian Lawyer’s Restructuring and Insolvency Deal of the Year, the Atlas Iron restructure, as well as advising on the collapses of BBY and the Keystone Group, both high-profile matters.
COLLEEN PLATFORD Gilbert + Tobin
Platford is currently the lead partner on some of the largest and most complex disputes in Australia. She led the Gilbert + Tobin team in representing eight RiverCity companies in Australian federal court proceedings against AECOM Australia, achieving a $280m settlement. This is one of the largest settlements of a misleading and deceptive conduct case in Australian history. Platford is also currently acting for the BrisConnections group in its claim in the federal court against Arup, for in excess of $1bn, for misleading or deceptive conduct and negligence in undertaking the traffic forecasting for the AirportlinkM7 in Brisbane.
NOLA PEARCE
MICHAEL POLLARD
Pearce has a passionate and energetic commitment to the nobility and high ethical standards of the legal profession and its role in justice administration service. This dedication was recognised when she won the QLS President’s Medal 2016 outstanding contribution award. She is the chair of the Queensland Law Society’s ethics committee, and a member of the QLS Free Legal Advice Panel. Additionally, she works for access to justice and animal welfare, including as a member of the board of management of the Animal Welfare League of Queensland, plus her acceptance of referrals from the national pro bono Barristers’ Animal Welfare Panel.
Pollard heads Simpson Grierson’s corporate team. He is regarded as one of New Zealand’s leading deal makers, advising on transactions totalling over NZ$5bn in 2015. Pollard’s recent high-profile work includes acting for Macquarie Capital on the block trade of Origin Energy of its 53.1% shareholding in Contact Energy, one of the largest deals ever undertaken in New Zealand. He also led on deals for CHAMP Ventures (acquisition of Macpac), nib (acquisition of OnePath Life), Marlborough Lines (acquisition of Yealands Wine Group) and Accel Partners (investment in Xero).
Carter Newell Lawyers
Simpson Grierson
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HOT LIST SIMON REAR
ASTRID RAETZE
Squire Patton Boggs
Baker & McKenzie
Raetze is a partner in the Sydney office of Baker & McKenzie and a member of the management committee. She is a pioneer in the fintech space in Australia and around the world. Raetze has been a regular media commentator on the topic both locally and globally, appearing in the South China Morning Post, Apple Daily, Oriental Daily, Funds Selector Asia and Asian Private Banker. Recently she advised Acorns Grow Australia Limited on the establishment of its micro-investing product platform in Australia.
Rear is a strategic corporate lawyer with experience in Australia and the UK focusing on M&A, equity capital markets, corporate advisory and corporate governance. He has a particular focus on the resources industry and has been involved in a number of highprofile cross-jurisdictional matters in 2016. Rear is a leading player in the mid-tier M&A market, where the deals are often complex and involve coordinating teams across the region. Over the past six months he has led his practice team’s largest matters in Australia. He is also an expert in corporate governance and regularly presents on corporate governance issues, including at the Governance Institute.
CRAIG ROGERS King & Wood Mallesons Rainmaker
STEPHEN QUINN DLA Piper New Zealand
Stephen Quinn is a powerhouse of DLA Piper talent, specialising in local and central government work, and particularly resource management, environmental law, public law and building law. Quinn is also a member of the DLA Piper board. He advised the Marlborough District Council on the Board of Inquiry for New Zealand King Salmon’s proposed expansion into prohibited areas of the Marlborough Sounds. He also advised the Department of Corrections on the designation for a new men’s prison in Auckland, and is regularly instructed by Auckland, Wellington, Hutt and Upper Hutt city councils. Quinn also advises the New Zealand Fire Service on major projects involving resource management and building matters.
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Since becoming a partner in 2011, Craig Rogers has consistently been one of KWM’s highest performing partners and, at just 39, he is the youngest partner to join the firm’s leadership team, with his appointment as sector leader for projects, infrastructure, energy and resources. This year he has led numerous high-profile energy and infrastructure transactions, including advising QIC (and Future Fund’s) landmark investment into the $3bn Powering Australia Renewables Fund; Landbridge’s acquisition of the Port of Darwin; BG Group’s $91bn takeover by Shell, and APA/REST on the acquisition of the Mortlake pipeline. In a highly competitive market, he is the go-to trusted advisor to a large stable of clients, and is the firm’s client relationship partner for APA, BG/Shell, QIC, Aurizon and Landbridge.
TAE ROYLE Ashurst
This year Tae Royle was part of the team that launched Ashurst Advance, a uniquely integrated team bringing together three fundamental areas of legal service innovation: resources, process and technology. As a smarter, more efficient and different way of working, Ashurst Advance brings significant benefits to Ashurst’s clients and is leading the way in legal services innovation. Royle leads Ashurst’s legal technologist team and has cutting-edge expertise in the design and implementation of document automation systems, data visualisation, digital contracting systems, distributed applications and machine learning.
JOSEPH SCARCELLA Ashurst
Joseph Scarcella is a partner in the restructuring and insolvency group in Sydney. He is an expert in all aspects of all forms of insolvency administrations, security enforcement, insolvency related litigation, restructuring techniques and workouts. This year, Scarcella was the lead partner acting for the liquidators of HIH in the landmark and long-running case of HIH Insurance Limited (in liquidation) & Ors [2016] NSWSC 482. This is the first decision in Australia that has squarely considered the US-style, indirect market-based causation. Scarcella also acted for the liquidator of Babcock & Brown in the equally important decisions of Grant Taylor v Babcock & Brown Limited (in liquidation) (2015) 322 ALR 723; [2015] FCA 149 and [2016] FCAFC 60. Scarcella is an expert litigator in the insolvency space and handles some of the firm’s most complex litigious matters.
SIABON SEET Gilbert + Tobin
Siabon Seet has expertise across all areas of intellectual property, with a particular focus on finding innovative and commercial answers to legal complexities that arise in IP from the digital transformation or disruption of industries. She has acted on landmark copyright infringement proceedings that have tested the boundaries of copyright law in Australia, including the Cooper, Kazaa, IceTV and the Roadshow/iiNet cases. In the past year, Seet has acted in a ground-breaking case for the music industry to determine a new multi-million dollar revenue stream for recording artists and record companies for the online simulcast or streaming of their music by the commercial radio industry.
TONY RYALL Simpson Grierson
Former senior cabinet minister Tony Ryall joined Simpson Grierson in January 2015 to lead the firm’s public policy work. A non-lawyer, Tony works at the highly important interface between the public and private sectors in New Zealand. His services are highly sought after by a wide range of private and public sector organisations. Ryall helps clients to develop their strategies around the regulatory and legislative stakeholder issues they face. His role evidences the increasing trend of law firms diversifying services to meet the needs of their clients.
BELINDA SIGISMUNDI Macpherson Kelley
With over 11 years of experience as an intellectual property lawyer, Belinda Sigismundi has particular expertise in the development, protection and enforcement of trademarks locally and overseas and has been fortunate during her career to work with many leading national and global brands. Her broad experience covers all aspects of contentious and non-contentious intellectual property issues, including the commercialisation of innovative products. Sigismundi loves seeing her clients succeed in business and helping them to be successful. As a young, emerging leader, Sigismundi is passionate about encouraging other young female lawyers, particularly those returning from parental leave, to strive for leadership roles within a firm and make an impact in the legal profession.
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FEATURES
HOT LIST NATHANAEL STARRENBURG Harmos Horton Lusk Limited
Starrenburg is a director of HHL, with over 13 years of experience as a corporate lawyer and advises on a wide range of corporate transactions, including trans-Tasman M&A and capital raisings. He has particular expertise in takeovers under the New Zealand Takeovers Code. Starrenburg also advises on corporate advisory matters, including secondary market compliance matters, corporate governance and foreign investment into New Zealand. He has been recognised as a leading lawyer by the major international legal rankings publications, including Chambers Global, Legal 500, IFLR 1000 and AsiaLaw Profiles.
JULIANA WARNER
Herbert Smith Freehills
A highly experienced and successful commercial disputes lawyer, Juliana Warner is breaking new ground for the legal profession in her role acting for Tabcorp and defending Australia’s first anti-money laundering (AML) prosecution. The high-profile case marks the first litigation proceedings commenced by AUSTRAC under the AML and Counter-Terrorism Financing Act 2006. With no existing case law on the interpretation of the act, or the application of penalty provisions, the historic case will set a precedent for AML regulation in Australia. Warner is also leading the way on diversity and is the inaugural chair of the NSW Law Society’s new diversity and inclusion committee. The passionate advocate for diversity and inclusion, who is also managing partner of HSF’s Sydney office, is using her leadership skills, energy and expertise to help drive positive changes for the profession. During her career, she has successfully mentored several female and male lawyers to achieve their goal of partnership.
TAL WILLIAMS Holman Webb
Williams is one of the few technology lawyers in Australia who truly understands the complexities this industry presents. When others thought the internet was a fad, Williams knew technology was the future. He was so convinced the future was technology driven, that he almost gave up his career in law in the early 1990s to pursue one at IBM. Although his firm represents some of the world’s largest global software companies, Williams also enjoys assisting start-ups and taking part in their innovative spirit. Having formed a corporate partnership with the global Entrepreneurs Organisation, he is at the forefront of our nation’s entrepreneurial appetite, often encouraging and educating our business leaders, many of whom are in the technology sector.
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LUKE WESTMORE Mills Oakley
With bipartisan support for a renewable energy target, lawyers in this space are finally having their time in the sun. Mills Oakley’s Luke Westmore has recently advised on several transformational deals, including the Barcaldine solar PV project in Queensland – the only large-scale solar project financed in 2015 – and the Waterloo Stage 2 wind farm in South Australia, the only wind project developed outside of the ACT wind auction process in 2015. He is also currently advising on numerous other projects, including advising power producer RATCH on the 170MW Mount Emerald wind farm, which will be Queenland’s largest renewable project.
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PROFILE
RABIA SIDDIQUE
A SQUARE PEG IN A ROUND HOLE Lawyer-turned-inspirational speaker Rabia Siddique’s experience as a hostage in Iraq was nothing compared to the slur campaign she endured after suing the British government. She tells Samantha Woodhill how she lived to tell the tale PAINTED AS a “money-grabbing Johnny foreigner” by the English tabloids, Rabia Siddique made headlines around the world when she sued the British government. Men were coming back from Iraq and Afghanistan without arms and legs and here
Two Special Forces soldiers had been illegally detained two-thirds of the way through Siddique’s Iraq tour, and the soldier sent by the British military to negotiate the release of the soldiers had been met with distrust by the Iraqis.
“All of those things that had served me well up until that point were now turned against me during the several hours where we were held hostage” was Siddique, trying to bleed the government dry of hundreds of thousands of pounds, the papers read. It was 2008 and Siddique, a decorated legal officer in the British army, had lodged a discrimination case against the British military on the grounds of sex, race and religion over her treatment after a delicate hostage incident in Iraq back in 2005.
“They said unless I was sent in, there was no way that they would even entertain the idea of releasing our two soldiers,” she says. “I found myself very quickly in a position where I was ordered to take over and lead the negotiations for the release of our two colleagues. And that was going well up until a point and then, literally within moments, everything changed.” Photography by: Denise Teo
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The place was stormed and, within seconds, Siddique and her colleague became hostages. “I was the only woman, the only Arabic speaker, and I was the only Muslim among us,” she says.
“I guess my dream was really to be able to represent and help people that had suffered the most appalling human rights abuses – that lived in parts of the world where they simply couldn’t get the help that they needed” “All of those things that had served me well up until that point were now turned against me during the several hours where we were held hostage. I, in particular, in front of my male colleagues, was subjected to some pretty degrading and humiliating things.” But it was the ordeal after the rescue that Siddique says was harder to overcome. The soldier sent initially to negotiate was given a hero’s welcome, in the shape of a military cross and an immediate debriefing. Meanwhile, Siddique was greeted by her commander with a cup of tea and a kiss on the cheek. “Don’t hurry back [to work] tomorrow,” he said. No debriefing, no military cross; instead an order to never speak of her participation in the incident.
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PROFILE
RABIA SIDDIQUE
“I guess because I was rather unusual, I was a bit of a square peg in a round hole when it came to serving officers in the military. You know, I was foreign; I was from Australia; I was a woman; I was Muslim, and I spoke Arabic” Hot political potato A victim of sexual abuse and the child of an immigrant who faced many challenges in Australia in the 1970s, Siddique had planned on a career in social justice from a young age. “I guess my dream was really to be able to represent and help people that had suffered the most appalling human rights abuses – that lived in parts of the world where they simply couldn’t get the help that they needed,” she says. “And for me, joining the British army was a means to an end, quite frankly. It was a way that I knew that I could go and work in The Hague at the international criminal tribunals and, more importantly, access and help the people that I wanted to – the victims of war crimes. “I guess because I was rather unusual, I was a bit of a square peg in a round hole when it came to serving officers in the military. You know I was foreign; I was from Australia; I was a woman; I was Muslim, and I spoke Arabic. “I guess it was for those reasons that the British army chose me, perhaps over people who were far more experienced than me – some of my colleagues – to go into Iraq when I did as the sole legal advisor.” At the time of the hostage situation, Tony Blair’s government was under a huge amount of scrutiny for the Iraq campaign, and the role of women on the front line was hotly contested. Islamophobia was growing. So Siddique was the embodiment of a number of very hot political potatoes at the
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time, and for that reason her involvement in the hostage incident was the subject of a political cover-up. “Tony Blair’s government had held an emergency meeting the day that this was all unfolding, the 19th of September, and they made a decision that if we were all to come out of it alive, that it must never come out that a female, Muslim lawyer was sent in to save the lives of those two men,” she says. But after two years, she had exhausted every available avenue to address the
RIPPLING CHANGE Siddique says that taking the terrifying step of actually taking legal action against the British military opened up the floodgates. It drew attention to discrimination in the armed forces, which had a significant flow-on effect. “Within the year of my case being heard, there was a huge investigation in the armed forces, which led to a change of policies and attitudes towards women and ethnic minorities,” she says. “The first woman was awarded a military cross for bravery, and the whole debate of women on the front line, and the fact that women could be equally capable of brave acts, was instigated.” While it was a hard road to travel, Siddique says it shows the power of the individual. “[It’s about having to be] willing to do something uncomfortable and stand up for the greater good. I guess that’s what I dedicate my life to now, having learned that,” she says.
CAREER TIMELINE 1995-1997 Legal aid commission 1997-1998 Commonwealth DPP End 1998 Leave for UK
“But I felt that I had to take that step [to sue the government] because not to have done so would have made everything I have stood for, in terms of justice and equality and fairness, it would have made it hypocrisy.” discrimination and the only option left was to mount a case against the British Ministry of Defence. “That was something I wrestled with, because that’s a pretty extreme step, as one individual, to take on the might of the British government,” she says. “I knew that it would be a hard battle and I knew that it would be the end of my military career. “But I felt that I had to take that step, because not to have done so would have made everything I have stood for – in terms of justice and equality and fairness – it would have made it hypocrisy.”
Every trick in the book During the 18 months it took to have the case heard in the employment tribunal, the government and the army tried to intimidate Siddique into dropping the case. They tried to have her medically discharged on the grounds of insanity, which was disproved by a
senior psychiatrist. In addition, a very public slur campaign was launched, questioning her honesty and integrity. “It was based on the fact that but for the fact that I was a female, a foreigner and a Muslim, I would have been treated completely differently and there was a very strong case and they knew that,” she says. But the slur campaign backfired when the world’s press showed up to court. “By trying to discredit me, they had exposed it and so there was all this interest in the case. I think it was on that day that it dawned on them that not only was I not going to be intimidated, not only were they up against a very strong case, but they now had international eyes on them,” she says. After winning the case, Siddique returned home with her family to Perth, where she penned her memoir, Equal Justice, in 2013. She continues to work as a humanitarian and speaker, still working in the law and lecturing at a Perth law school occasionally.
1999-2001 Working as a public liability and criminal defence lawyer in the UK 2001-2008 Legal officer in the British Army (specialising in international humanitarian law) 2008-2011 Crown advocate, counterterrorism division, UK (war crimes, terrorism, hate crimes and Official Secrets Act prosecutions) 2011-2012 Senior counsel, Corruption and Crime Commission, WA 2012-2014 Commissioner’s legal counsel, WA Police 2014-present Professional speaker, author, mentor and coach, casual law lecturer and tutor
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CITY REPORT
PERTH
THE NEXT BIG THING Perth lawyers can no longer rely on a once-in-a-generation mining boom to sustain future firm growth. Instead, as Ben Abbott finds, they are searching for – and finding – Perth’s version of the next big thing
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SQUIRE PATTON Boggs managing partner John Poulsen knows just how cyclical the Perth legal market can be. With a career that has seen him rise to the top of MinterEllison’s Perth office, before leading a group of partners to join incoming global law firm Squire Sanders, he has always needed to have his eyes firmly set on the horizon. “I never believed, as our premier once said, that the boom would last forever, because they never do,” he says. Jackson McDonald chairman Richard Sandover, likewise, has to hark back to the early 1990s to remember a market in Perth that looks in any way similar to the current one, when the 1987 sharemarket crash had driven money into the seeming safety of the property market, only to have that eventually crumble in 1992, too. “We are now bouncing around at about 1 to 1.3% growth, and the construction of major projects, which were a major area of work for a lot of the bigger law firms,
has come off and that’s had a big knock-on effect,” he says. However, the mood of Perth’s top lawyers is surprisingly upbeat. Either due to the wisdom of years that comes from the crucible of cycles endured and overcome, or what Sandover calls WA’s underlying entrepreneurial spirit, firms are proactively managing the downturn to take advantage of the opportunities to come. They are looking for the next big thing.
New normal Spending on major resources project construction has plummeted in recent years. While Poulsen says gold and lithium projects still remain active – the firm acted for General Mining in its recent merger with lithium miner Galaxy, for example – he says the more heady days of the resources boom are definitely long gone. “Having said that, there is a transition from construction to production, and there
INNOVATION STATE Law firms have often been accused of being slow moving when it comes to innovation, but Jackson McDonald is channeling the best of WA’s entrepreneurial spirit to change the way it positions its business for the future. Chairman of partners Richard Sandover says the firm, for example, is currently advising and working alongside established start-ups in co-working space Flux, designed for the next generation of WA-sourced disrupters. “It’s not news given the entrepreneurial flavour of this state that the ideas and risk-takers are here in Perth, but as one state government report recently showed, what’s missing at the moment is venture capital.” With the right policies – and some good legal advice – Sandover says that could change. He expects that, regardless of the government of the day, a focus on innovation and cultivating start-ups will remain. “I’m confident that we have already demonstrated here in WA that, in areas like medical, engineering and mining technology, we can innovate, from Rio Tinto introducing driverless trucks right through to the applications that Jackson McDonald are introducing to assist our clients drive efficiencies in their legal spend,” he says. And Jackson McDonald is taking tech-based innovation seriously. “We are more than looking at applying artificial intelligence systems, and at the moment we are focusing particularly on the construction law area.” It’s something Perth’s law firms need to do in the current market, or fall behind. “It’s not business as usual, and it hasn’t been in my view for at least a decade, and if you are in business – and I include law firms in that – and you are just waking up to that idea, you have probably missed the boat,” Sandover says.
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CITY REPORT
PERTH “We’ve observed a significant exodus of talent from top-tier firms, and large local based firms, as senior lawyers and partners reposition themselves into spaces more aligned with the future expectations of their clients” Craig Gough, MILLS OAKLEY LAWYERS is a significant amount of iron ore and LNG being exported. It’s not like it’s gone from complete boom to complete bust,” Poulsen says. The downturn has impacted upon many clients. “The downturn in the resources sector has had a continuous impact across the region, which has affected many clients of the firm and the economy generally,” Mills Oakley Lawyers’ Craig Gough says. The property sector is just one example. “There has been a noticeable impact on office leasing in the Perth CBD
and West Perth areas, investment in off-the-plan strata developments and greenfield land subdivision. Landlords have had to react and move quickly to secure tenants, including offering substantial incentives and increasing expenditure in redevelopment and refurbishment of older buildings,” he says. However, all firms remain quite positive. Not least because of a rise in counter-cyclical legal work. “The large construction projects are broadly drawing to a close or completed – but out of that we are seeing a range of
disputes up and down the contractual chain, and because capital is tight at the moment those disputes aren’t being settled as quickly as they were previously,” Sandover says. Poulsen agrees: “In the construction disputes area we are seeing quite a bit of work flow out of Darwin’s Ichthys LNG project, and we are handling a lot of that in Perth and Sydney, as well as in Darwin. It’s the same with the Roy Hill and Gorgon projects – there is a lot of activity at the moment in the subcontractor space.” Gough believes the wave of contentious work could last some time. “We are anticipating an increase in recovery-related work both in the regulated and non-regulated environments. The banks and other lending institutions have been working hard with customers for quite some time in relation to underperforming loans and we expect that this will lead to a higher amount of recovery work over the foreseeable short to medium term,” he says. Lawyers say current economic conditions are stimulating areas such as HR and industrial relations work, with employers forced to monitor employee costs and
THE BIG 4 IN CONSTRUCTION LAW
TAX
REFORMS TO THE STRATA TITLES ACT 1985 Expected to promote interest in higher density living, opening up opportunities in the tourism, entertainment and food and beverage industries.
CGT AMENDMENTS TO TAX ADMINISTRATION ACT 1953 New foreign resident CGT withholding provisions on acquisitions, disposals and leasing transactions over $2m will create process-driven changes for clients, with additional administrative steps to take during transactions.
THE CONSTRUCTION CONTRACTS REVIEW A review of the Construction Contracts Act by law professor Phil Evans is expected to lead to a more workable and less technical regime when released.
AN EXPANDED UNFAIR CONTRACTS REGIME An expanded unfair contracts regime is likely to result in corporate clients seeking more advice on reviewing and amending relevant contracts.
Source: Mills Oakley Lawyers
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CITY REPORT
PERTH restructure where appropriate. And, despite the downturn, there is still enough corporate work going around to keep firms engaged, particularly supporting other offices. “Corporate and M&A is reasonably strong,” Poulsen says. “Being part of a global firm, we do a lot of mid-market cross-border M&A, out of places as diverse as Leeds in the UK, and Cleveland and San Francisco in the US.” Sandover says the market has even seen some promising “green shoots” in capital
THE BAD NEWS
base,” Poulsen says. “There seems to be a lot of competition in the general finance space chasing a smaller amount of work.” Mills Oakley is one of the newer firms shaking up the market. With 39 lawyers in Perth as of June this year, the firm is managing to grow its market share. “Coming out of the resources boom, the two main drivers of work for the Mills Oakley team are service delivery and value. We are finding clients are more cost sensitive but
THE GOOD NEWS
with them on that. If there is a budget, then we want to know about it, so we can make sure we meet it and that the solutions we come up with are tailored to give them value for money in a cost-efficient manner,” he says. Mills Oakley’s Craig Gough also notes lawyers are willing to move. “We’ve observed a significant exodus of talent from top-tier firms, and large local based firms, as senior lawyers and partners reposition themselves into spaces more aligned with the future expectations of their clients. In addition, senior lawyers who had had their future promotions stymied by the lack of growth in the top tier are increasingly looking elsewhere.”
Finding next
State of the States report released in July showed that WA had slipped from top spot to seventh in two years, putting it just ahead of Tasmania. When compared with other states, WA was ranked poorly for unemployment, business investment, population growth and housing finance. markets practices. “Since February this year we’ve started to see capital being raised, with some backdoor listings and even some IPOs. That’s not just in the mining field, we are also seeing it in technology and medical engineering,” he says. Property, likewise, could be looking up. “The general view of those working in the property area is that Sydney and Melbourne’s strong markets have peaked, and the interest is now shifting to WA, where prices have come off, so we are seeing more switched-on investors from overseas or the eastern seaboard taking interest.”
Testing times As Perth’s exuberance has ebbed somewhat, firms have had to face tough legal market competition. “We don’t do bank panel work any more, but I was recently talking to a relationship manager with our banker, who was saying he’d never been visited by so many lawyers wanting to have coffee and touch
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An Oxford Economics report released early this year claimed that Perth could do more to boost global GDP than either Sydney or Melbourne by the year 2030, which would make the city one of the biggest 50 urban contributors to growth if it is able to shrug off the effects of the resources-based downturn. are demanding a higher level of service. Our model gives us the competitive advantage of providing top-tier service to our clients at a value point that the top-tier are unable to compete with,” Gough says. The result is downward pressure on fees. For example, Poulsen says the firm’s litigation funded disputes team in Sydney is probably the only part of its practice at the moment where the firm can command full rates. “Once upon a time hourly billing was the norm, but I think with dispute work today clients are seeking alternative pricing arrangements, and larger clients in particular are saying they want you to do a scoped fixed price, or they may be prepared to go with an hourly at a cap. We are being much more flexible than we used to be.” “Clients are price conscious, and beware the law firm that ignores it,” Jackson McDonald’s Sandover says. “You have to work with the client, and when times are tough, you need to understand that and work
Poulsen says Perth is currently going through “a bit of a rethink” about what its post-resources future will be. But with hope inherent in developments such as WA’s involvement in the Square Kilometre Array project – involving the local construction of the world’s largest computing centre – there are many areas that do look bright. “Once you get the world’s largest computer centre, many, many things can happen, because you get the tech people that are there to build, develop and support it, so that is one area that will grow,” Poulsen says. Poulsen also tips education and aged care as growth industries. And with his own Chinese name, which translates to the lucky “Rising Water”, perhaps he is well positioned to capitalise on some of that China-sourced growth. “Chinese families are looking for places to send their kids for a good international education but, interestingly, if you provide that, you also get three visits a year from family members, so tourism is another area of growth.” In the end, Poulsen says Perth is now big enough to sustain itself through the good – and the bad. “There has been vast population growth in Perth, and with close to two million people it’s become more of a self-sustaining city, which is very different to the last boom and bust cycle where it was reliant on resources,” he says.
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FEATURES
TMT
AGENTS OF CHANGE Lawyers in TMT practices are confronting some of the most challenging issues of our time, while navigating the fast-changing demands of clients in search of more value. Ben Abbott reports
THE NATURE of the full-service law firm business model is that all legal practice areas eventually have what Ashurst technology partner Tim Brookes calls a “turn in the sun”, as trends in society, the economy and the law combine to fortuitously push certain lawyers into the spotlight. It appears to be TMT’s turn – again. It is an area getting a lot of exposure, and is at the vanguard of developments that affect the economy, from the growing reach of cloud technology and the ongoing NBN rollout, to those affecting the legal industry, such as the threat of smart contracts.
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“Technology has had its turn in the sun a couple of times over the last 15 years,” Brookes says. “Now there is another burst, where the legal issues facing society generally driven by technology mean it is an area of interest for the business community and for lawyers practising in the area. What we are really seeing is another wave of change through the global economy that reminds me very much of the original rise of the internet through the 1990s, and we are very much at the start of this,” he says. So what are TMT lawyers working on? Australasian Lawyer asked three top TMT
lawyers to name the current drivers of their practices, the challenges they face and their future predictions.
THE DRIVERS
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Telecommunications
The National Broadband Network continues to drive work for TMT practices across Australia, with Webb Henderson calling NBN Co “a highly dynamic company” that is involving law firms in the launch of “new technologies and the introduction of new products”.
Brookes says Ashurst, likewise, is benefiting from NBN work. “We are doing ongoing work with them, particularly around the rollout of the NBN, and the associated infrastructure arrangements with Telstra.” Firms say that, due to changes in the industry structure locally for the telecommunications industry, there is also a high level of activity at the retail level, which is driving M&A advice for law firms. However, both Webb Henderson and Ashurst are also benefiting from global instructions. Henderson says regional transactional and project work has become increasingly important, with regulatory projects a key area of focus in Southeast Asia and the Middle East. “We’re currently advising on one of the most ambitious smart cities projects in the world. It brings together a major PPP transaction with elements of a complex ICT project, including a systems integration and network deployment dimension.” Ashurst, meanwhile, is advising as part of its global network on wholesale service contracts in Europe, led by London, as well as projects in Papua New Guinea.
“The rise of automation and cognitive computing is starting to produce some useful tools for legal analysis, which will enable both law firms and in-house teams to carry out complex legal analysis more efficiently” Bernadette Jew, GILBERT + TOBIN
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Media
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Technology
Ashurst partner Sophie Dawson says the wave of licence work that followed the introduction of additional subscription video-on-demand services has now given way to disputes and day-to-day advice work for lawyers with practices in the media sector. Key matters for the firm over the past year have included a copyright dispute over TV formats, defamation claims (including novel claims with regard to the internet), and being consulted for prepublication advice.
Blockchain technology is already creating work for some law firms at the cutting edge. “Blockchain technologies and smart contracts are gaining considerable interest as the next big disrupter, particularly in financial services,” says Gilbert + Tobin partner Bernadette Jew.
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FEATURES
TMT “I would say smart contracts are more opportunity than threat, because they open up a whole complex area that people have to wrestle with” Tim Brookes, ASHURST “We have been actively involved in the nascent developments around contract automation and blockchain.” There are other areas generating more ongoing legal work, such as the softwareas-a-service economy. “The software-as-aservice economy is leading to a new kind of outsourcing for the masses, enabling corporations to acquire services on demand as inputs for business operations,” Jew says. Brookes argues corporates are increasingly choosing their own version of the cloud – or the private cloud – which gives them flexibility, control and security while unlocking the cost benefits. “Corporates are now marching heavily into the private cloud, and are trying to take sensible advantage of the economies of the cloud through this slightly different cloud model,” he says. This also means cyber security is a concern. “There’s a growing recognition
that cyber security is a whole-of-business challenge, not just a technology issue,” Jew says, citing the security of corporate data and potential disruption to business processes and operations. Brookes says as more business is conducted virtually, organisations looking to start operations in Australia are often more likely to orient decisions around data protection rules than tax.
THE CHALLENGES
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Webb Henderson is one firm that thinks strong boutique credentials will help it grow its market share in future. “It remains a challenge for all law firms to keep moving up the value chain,” says partner Angus Henderson. “In our view, clients are looking to partner with law firms that offer something that complements their highly
INTO THE BREACH Lawyers are still closely watching the long-awaited Privacy Amendment (Notification of Serious Data Breaches) Bill, which is yet to be introduced into Parliament. Requiring all APP entities – or those subject to Australia’s Privacy Principles – to notify the Office of the Australian Information Commissioner and affected individuals in the event of a serious data breach, it is designed to ensure that unauthorised access or disclosure of personal information that presents a real risk of serious harm is brought to light. However, some corporations fear the mandatory disclosure of breaches could highlight deficiencies in their internal systems and controls, which could actually make them more vulnerable than ever. The bill has so far managed to achieve bipartisan support, but the new make-up of the Senate leads lawyers to question how easy its passage will be this year.
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Commoditisation and competition
skilled in-house teams, because sophisticated in-house counsel want meaningful access to deep expertise. People are less interested in buying a law firm brand or a one-stop shop and are interested in depth of expertise and global experience,” he says. Jew argues that firms need to stay on the front foot if they are to best competition from alternative legal service providers that are shaking up the way some TMT clients are now buying their legal services. “Alternative legal services providers can provide a viable, cost-effective option for our clients in relation to more commoditised legal services,” she says. “Our firm has an equity stake in LegalVision, an Australian law firm start-up that can bring lower-cost resources and technology to bear in delivering standardised legal services.”
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Keeping up with change
Technology is changing fast, and to thrive lawyers need to stay focused and keep up. For example, Jew says the rise of automation will have direct effects on legal practices. “The rise of automation and cognitive computing is starting to produce some useful tools for legal analysis, which will enable both law firms and in-house
teams to carry out complex legal analysis more efficiently.” Gilbert + Tobin has moved to build an in-house innovation unit that includes specialists in automation technologies, process improvement and smart contracts. Current projects of the unit include preparation of document review reports, creation of multiple documents
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Thinking differently
Ashurst’s Tim Brookes says new types of technology may require lawyers to come up with new ways of approaching legal problems, beyond what the globalisation of markets and the wave of disintermediation characterised by Uber have so far required. “Behind that is an AI and smart
“People are less interested in buying a law firm brand or a one-stop shop and are interested in depth of expertise and global experience” Angus Henderson, WEBB HENDERSON from a single set of inputs, and the creation of tools to aid the analysis and application of legislation. Jew says big data and the Internet of Things (IoT) is one big change reshaping the sector. “The number of connected IoT devices globally is growing at an incredible pace, notwithstanding lack of standards as to interoperability or effective government and industry collaboration,” she says. “These devices carry, exchange and enable remote analysis of data and can be embedded in traditional machinery or in new technology, like those found with commercial drones. There are significant opportunities through effective data management and analytics.” Lawyers also need to stay on top of dynamic change in both local and international legal regimes, according to Henderson. “In Australia, we’ve seen the data retention laws place new obligations on telcos, and spectrum reform is also on the horizon. New Zealand is undergoing a root and branch regulatory review, while Malaysia is witnessing a significant overhaul of its core sector legislation, the Communications and Media Act. Smaller city states in the Asia-Pacific and the Middle East are undertaking transformative smart city projects. There will be plenty more activity in this space.”
contracting wave, and the big challenges will not so much be about our profession being made redundant, but the impact on society and what we actually face collectively, like the impact on jobs, how driverless cars or drones will be controlled, and how much people will want what they are being marketed when controlled by organisations that can predict things like their interests or voting patterns.” This may involve some upheaval for the legal profession, Brookes says, as it comes to grips with understanding what technologies can do and whether it requires the application of entirely new legal principles.
THE PREDICTIONS
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Flexibility and flux
Agile contracting arrangements are likely to be an area of focus for technology lawyers in the year ahead, as companies seek more flexibility in the way they procure IT for larger, complex projects. “We are seeing a trend towards implementing agile contracting methodologies,” Jew says. “To meet this need, we are working with clients to develop rapid, agile procurement processes.” Likewise, financial technology, or fintech, will continue to challenge lawyers, with 2016 bringing new mobile, social and digital technologies that allow customers to access and use financial products on the go.
“Financial technology primarily involves the promotion of disruption in the financial services sector through the arrival of crowdfunding platforms, third-party wallet payment systems, and other new innovative products and services digitising money for consumers,” Jew says.
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Smart contracts
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Partner power
Digitised smart contract technologies pioneered by cryptocurrency Bitcoin will continue to develop, although Brookes says the technology is still in a very early stage of development: “There are some possibilities in new areas such as distributed ledgers, for example, which allow you to achieve significant cost savings for transactions if those ledgers are not confidential.” He doesn’t see smart contracts immediately replacing lawyers. “There are too many inherent limitations,” he says. “They are currently limited to a virtual environment, with the software acting as a processor to create efficiencies rather than replacing the legal structuring of a contract.” In fact, lawyers may benefit. “I would say smart contracts are more opportunity than threat, because they open up a whole complex area that people have to wrestle with,” Brookes says.
TMT clients are expected to continue to migrate away from one-stop-shop law firms, according to Henderson, a trend that is likely to see an increase in the power of key rainmaking partners, while others are potentially sidelined. “Clients are seeking out the best and brightest practitioners wherever they may sit. More of those conversations will focus on who can build strong teams with knowledge of the client’s core business and who can deliver outstanding results to the business,” Henderson says. “We think we’ll see the trend towards law firms defining themselves by their best practitioners, and shedding practices that can’t stand on their own two feet, because clients are less and less willing to pay a premium for underwriting underperforming practice areas,” he says.
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PEOPLE
OTHER LIFE
TELL US WHAT YOU GET UP TO! Email: Samantha.Woodhill@keymedia.com.au
RUNNING SO THEY CAN Her love of running combined with a desire to do good has had Heidi Nash-Smith covering hundreds of miles EVEN FOR Heidi Nash-Smith, pro bono partner at Sydney insurance law specialist firm Wotton + Kearney, this August is going to be a challenge. August is the month when Heidi, in company with seven other representatives of the firm, will be travelling to Kenya as part of Wotton + Kearney’s fundraising efforts for So They Can, a charity empowering women and children in East Africa through education, and this year’s beneficiary of the firm’s fundraising efforts. The $50,000 target will be enough to support the feeding and education of 80 children for a year at the Aberdare Ranges Primary School in Kenya – a school set up and run by So They Can. The trip culminates in the team running the Masai Mara marathon, which is routed through the famed Kenyan game reserve. Long-distance runs for charity are nothing new for Heidi, who calls her first experience of running for a worthy cause – the New York marathon in 2013 – “amazing”. “You’re no longer doing it for yourself, you’re doing it for all the people who are donating and supporting you and you feel that support as you’re running.” The challenges don’t stop for Heidi, as the day after the Masai Mara run she is scheduled to begin a five-day trek up Mount Kenya before undertaking a 29km trail run along the coast upon her return to Australia the following week – all to raise money for So They Can. You can support Heidi’s and Wotton + Kearney’s fundraising efforts at give.everydayhero.com/au/wottonkearney-s-masai-mara-marathon-effort-for-so-they-can. HEIDI’S CHARITY RUNS
2013
New York Marathon for the Heart Foundation
2014
Six half marathons, including the Australian Outback Half Marathon
2015
London Marathon for the Black Dog Institute
In 2012, the first year of Wotton + Kearney’s charitable program, Heidi travelled to Cambodia to assist in house construction for the Tabitha Foundation 46
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PEOPLE
GABRIELLE EMERY
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DESIGNING DISASTER LAWS Asia-Pacific disaster law coordinator Gabrielle Emery talks to Samantha Woodhill about her role managing international response to disasters in developing countries GABRIELLE EMERY is the Asia-Pacific disaster law coordinator for the International Federation of Red Cross and Red Crescent Societies. She advises governments on policies for disaster response, but with no international treaty, she certainly has her work cut out for her. She looks at contingency plans, any local legal obstacles and how international response to disasters can be improved. And she is truly inspired, she says. “Of course [it’s] difficult, but disasters in many ways bring about the best in people, too, and it is humbling to see just how resilient humans can be in some pretty dire circumstances,” she says.
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PEOPLE
GABRIELLE EMERY
LEGALLY TRAINED Despite admitting she’d originally wanted to study Japanese, but was convinced to study law in the hope of better job prospects, Emery says her law degree has led her to a career she never even knew existed. “I think law gives you a really good grounding to undertake a lot, to be able to understand government settings and government strategies and how policy and law developments are made in a country. So that has been, obviously, a really good base,” she says. “You don’t have to be too narrowly focused in your law degree. I think there are many different areas where you can use a law degree, and it might not be the most traditional things that you’ve ever thought about.”
In love with disaster law Emery first noticed an absence of an international legal framework for disaster response when she worked with the New Zealand government at the UN. Now, with two young children by her side, Emery lives in Kuala Lumpur, and travels through Asia working with the disaster law program for the Red Cross.
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“It was here that my interest in this area was first sparked,” she says. “I became involved in the multilateral discussions and negotiations on the international humanitarian system and on global disaster response mechanisms.
guidance for an international response to the cyclone, advised the Nepalese government and other humanitarian actors on international disaster policies following the Nepal earthquake in 2015, and worked with governments and Red
“The absence of an international legal framework guiding how to work together and coordinate in times of disaster can often lead to tensions and confusions in emergency situations” “The absence of an international legal framework guiding how to work together and coordinate in times of disaster can often lead to tensions and confusions in emergency situations.” With a master’s in international human rights law under her belt, Emery took up a job running the law and government relations for the New Zealand Red Cross, a job she stepped into right before the 2011 earthquakes in Christchurch. Since then, she has provided secondary support to victims of the 2015 Vanuatu cyclone, trained a government lawyer to support in developing legal and policy
Cross societies in Mongolia, Bangladesh, Malaysia, China and North Korea on laws for disaster management. “Strong laws and governance frameworks for disaster risk management are essential and provide the underlying framework on which to build an effective and wellcoordinated disaster management system,” she says. “Most countries in Asia-Pacific are not adequately prepared to manage these kinds of disasters – and it’s important to have clear and articulated domestic laws and policies in place, so that the international and domestic response systems can be complementary.”
LIFE IN KL “It’s an interesting place to live,” Emery says, of life in Kuala Lumpur. “Life is pretty easy and pretty comfortable, I suppose. Compared to other parts of Asia, it’s fairly welldeveloped. It’s very hot at the moment.” Although she’s based in KL, she’s rarely actually working there. “Very little of my work, personally, is done in Malaysia, because we cover
“For disaster laws, the ultimate goal is to increase safety of the people, save lives and reduce the vulnerability of society and infrastructure from disasters” She says that governments tend to focus on emergency response rather than realising the importance of better preparedness and minimising risk. Now, the International Federation of Red Cross and Red Crescent Societies’ disaster law program has been operating in the Asia-Pacific for over a decade.
A local comparison Following the Canterbury earthquakes, Emery says the interest in disaster law spiked dramatically.
“A lot of the law reforms actually happened in New Zealand following the earthquake experience,” she says. “[It’s] an interesting model for a lot of the things around some of the land and housing and forced displacement issues that happened in Christchurch, so I think it’s an interesting time to be working in this area in New Zealand as well.”
Establishing a program “How do you connect a big international
37 countries, so I do quite a lot of work in South Asia – Bangladesh and Nepal – and in East Asia – China and Mongolia,” she says. “It’s a good base to be able to operate from. “I have two young children who keep me and my husband on our toes, but we enjoying travelling around Asia and having lots of adventures.” humanitarian response system and the domestic system in times of a major disaster response?” she asks. The International Federation of Red Cross and Red Crescent Societies begins by looking at the legal preparedness of international disaster assistance. “We found that there were a lot of legal and regulatory issues that were really playing out and maybe stopping some of that lifesaving assistance coming into a country. So there were these issues around visas and customs – customs issues always seem to play out in these major disaster response settings. “For disaster laws, the ultimate goal is to always increase safety of the people, save lives and reduce the vulnerability of society and infrastructure from disasters,” Emery says.
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BUSINESS STRATEGY
PHILANTHROPY
THE POWER OF GIVING The act of giving is now expected of most businesses, explains John Sikkema, and you won’t just be helping people in need – your staff will feel great about it too
PHILANTHROPY WAS once considered a noble endeavour for the rich, but the social market has shifted. The new generation is expecting businesses and corporations to be socially responsible and engaged. Donating money is not enough – the expectations of businesses are now higher due to globalisation and access to social media platforms. There are now an increasing number of new enterprises with a sole purpose to make a difference in the world, and to do that in a profitable way, rather than purely exist for profit share. Businesses such as Who Gives A Crap, which sells toilet paper to fund developing world sewerage problems, is one example. They stepped into the consumer goods industry to gain market share from the corporate giants, with the goal of syphoning funds into the NFP sector, while increasing the profile of the cause. Thankyou Water has shown that by combining entrepreneurial flair with a noble cause and an existing product, you can persuade consumers and suppliers to switch from traditional brands. Its profits are being used to provide clean water in developing countries and fund other allied philanthropic and charitable causes, while traditional brands are solely focused on maximising shareholder investment returns. Often people place philanthropic activity in the to-do-later basket. They put it off until they have more money or time, or until they are retired. What opportunities are passing
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them by? Melinda Gates’ mother persuaded Bill and Melinda to be philanthropic 20 years earlier, saying, “To whom much is given, much is expected.” Imagine if they had not listened to her.
A life of significance As a success-driven business builder, I had a personal experience that shifted my focus. I realised I was focused on monetary success, and this was no longer satisfying. This, as outlined in my book Enriched: Re-defining Wealth, caused me to have a huge paradigm shift. I wanted to build a life of significance – one focused on others, not myself. I took this on as both a personal and corporate challenge.
we should be giving back to the community. As the CEO, I shared my thoughts and our team came up with the idea of building an orphanage in Thailand, to be run by a local NGO. In the space of an hour after launching our plan, we raised the funds to build the orphanage from our franchisees and staff. I was
Melinda Gates’ mother persuaded Bill and Melinda to be philanthropic 20 years earlier, saying, “To whom much is given, much is expected.” Imagine if they had not listened to her How could my company become actively engaged with philanthropic opportunities? While in Phuket for our company’s conference, our team was transported daily between the hotel and the conference venue. We saw great poverty, an extreme contrast to the luxury of our five-star resort. I was unsettled and felt a deep conviction that
surprised by the significant acts of generosity that came from several of the most hardheaded business people in our organisation. Over a decade later, whenever we meet, their leading question is: “How’s the orphanage going?” Rather than how we grew a small business in Tasmania into a very successful Australia-wide firm.
It begins with the heart of a leader to embrace the concept that to whom much is given much is expected. A good place to start is by following these three principles:
Three principles for giving Align your philanthropic activity to your Life Purpose or Life Mission Statement What are you passionate about? What needs do you see around you, locally or globally, that get you angry, which others are not tackling sufficiently? What organisations exist that do good that you could help make better? Virtually every business has a business plan but, sadly, I have found very few business owners or key leaders have a clear personal plan for their life. By establishing your Life Purpose, it then becomes clearer which opportunities to pursue.
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If you embrace the practical power of giving, the personal and corporate rewards will astound you. It will take the culture of your company to a level well beyond where boardroom planning or HR programs teaching theoretical corporate values can take you. Here are reasons why giving will take your company to another level: Corporately unifies employees Creates a culture of collaboration among the staff Creates a corporate and individual purpose in staff beyond themselves Broadens people’s horizons and experiences, creating excellent opportunities for personal growth Gives employees a conversation starter in varied social settings, which increases their connection with people around them Exposure to the difficulties that developing countries face creates a sense of gratitude and realisation of the power people have to change the world Engaging with philanthropic activities will give a business a leading edge
among its competitors to become an employer of choice. I see personal transformation as the most powerful catalyst to becoming a genuine, giving and generous person, which ultimately will flow into the DNA of the organisations that you lead. Unfortunately, in our western culture we have given away our personal responsibility to help those in need and expect the government to use our taxes to take on that responsibility. This means many people miss out – the task is simply too big! Thankfully the tide is turning and wealthy individuals such as the Warren Buffetts and Bill Gates are setting a great example. Andrew Forrest is leading the way in Australia. These business owners are pledging to give away 90% of their wealth to needy causes around the world prior to dying. There is now a healthy global movement where other wealthy individuals have been challenged to do likewise. This is cascading down to everyday small businesses and people.
You will need to lead Once you have a compelling vision in the philanthropic space others will follow, but initially you may get some opposition. Maybe you are the only person in your sphere of influence that is committed to making a positive impact in the world. Clarity, communication and passion for your cause are needed.
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Be prepared for change The bigger the philanthropic project or cause you embrace, potentially the bigger the changes you will need to make. Risk taking, uncertainty and adventure are all key things to embrace as you seek a life that is fulfilling and meaningful. As children we’re often encouraged to dream about how we can make the world a better place. It’s now time as adults to use our time, skills, personal and corporate resources, and a child-like attitude of sharing, to make a difference in the world. Why not start today?
John Sikkema is a philanthropist, thought leader and entrepreneur. He is executive chairman of Halftime Australia, inspiring leaders to live their life purpose now.
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BUSINESS STRATEGY
CORPORATE HEALTH
PSYCHOLOGICAL WELL-BEING: PROVIDING A HELPING HAND A psychologically healthy workplace makes good business sense, but what steps can employers take to ensure this tricky management responsibility is not neglected? RACHEL CLEMENTS, the director of psychological services at the Centre for Corporate Health and expert panellist on the R U OK? Day Conversation Think Tank, says a healthy employee, both physically and psychologically, is a more productive and engaged employee. It therefore goes without saying that it is in the best interest of Australian workplaces to invest in the wellbeing of their employees. A 2012 study by Safe Work Australia (Guide to the model Work Health and Safety Act) reported that for every $1 a workplace spends on the successful implementation of mental health initiatives, there is, on average, a $2.30 ROI. Psychologically aware organisations are moving into the prevention area of learning how to build and create a mentally healthy workplace, in order to improve the health and well-being of all employees.
Psychological health in focus Of course, knowing there is a problem – and having a reason to invest in preventative solutions – is very different to actually implementing those solutions.
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“Approaching mental health in the workplace is a sensitive issue, yet it is one that managers and HR professionals should not shy away from,” says Clements. However, despite initiatives such as R U OK? Day, the Centre for Corporate Health’s consultants reveal that many managers are anxious about having conversations with staff about their well-being. Often managers are not sure how to actually have a conversation with someone who is struggling, and fear that if they say the wrong thing it will make the situation worse. As a result, nothing is said and the situation is avoided. This then becomes risky and circumstances can escalate for the employee, and a small issue that could have been addressed early on can, in many cases, develop into a full-blown mental health condition.
HAVING A CHAT The Centre for Corporate Health uses a specific five-stage conversation model that assists HR professionals and managers in having sensitive conversations with staff effectively. Top tips for having this conversation include: ff Feedback to the employee that you have noticed a change in them and that you are there to support and assist them ff Listen without judgement ff Prompt the employee to come up with solutions for getting them back on track ff Link the employee in with support services that can assist, such as an employee assistance program, a GP or other health professional, an HR contact or relevant manager ff Summarise the action to be taken and schedule another catch-up to check on their progress Taking action Organisations need to take a holistic approach and partner with professionals so they have initiatives, training, assessments and advisory services covering prevention of, intervention in, and recovery from mental health issues. “Like all initiatives, they need to have solid
foundations in the organisation’s policies, be advocated by the organisation’s leadership teams, and be filtered down through the various staff levels of the organisation to become part of the organisational culture where well-being is firmly on the corporate radar and people walk the talk,” says Clements. The Centre for Corporate Health advocates a holistic approach to managing an organisation’s well-being, with prevention always the most preferable method, rather than sustaining the cost of treating a more severe mental health disorder when someone has clearly become unwell. However, certain types of work and an individual’s psychological predisposition mean that some people are more prone
embedded in an organisation’s mental health policy and procedure to ensure that if an employee starts to experience symptoms of poor mental health, managers, HR and other key members of staff know what signs to look for and are able to follow an evidence-based process to prevent the situation from escalating from low to high risk.
INTERVENE High-risk situations, whether they have occurred due to lack of prevention/management in the early stages of a mental health issue, or in spite of all preventative efforts, do occur in the workplace. Relevant training for HR, WHS managers and senior executives ensures that they are equipped with best practice intervention strategies to manage a range
For every $1 a workplace spends on the successful implementation of mental health initiatives, there is, on average, a $2.30 ROI to experiencing symptoms of poor mental health than others, and sometimes an intervention approach based on best practice principles is required. A best practice approach to a mentally healthy workplace includes the following:
of mental health situations spanning low to medium to high risk (this may be threats of self-harm, harm to others or suicide). It also provides key staff within an organisation with the knowledge and confidence to reduce the negative impact that high-risk mental health concerns can have on an organisation.
PREVENT
Providing training and coaching on emotional resilience gives managers and employees the necessary skills to anticipate events and access coping skills when changes occur, therefore enabling them to not be as susceptible to symptoms of poor mental health when faced with change, business or personal challenges, and increasing demands or pressures. It is important for managers to learn not only how to strengthen their own emotional resilience, but how to build and maintain resilience in their staff members through enhancing their supportive leadership capacity.
MANAGE Establish a customised best practice mental health intervention framework that can be
Building resilience An increasing trend in certain professions is the introduction of resilience training. A popular myth is that personal resilience is not a genetic or personality trait; however, it is, in fact, a practical and learnable skill that needs to be developed in order to maintain positive psychological well-being in today’s fastpaced, challenging and changing workplaces. In fact, many top-tier law firms have begun to recognise just how important building the resilience of their employees is, especially in their graduate population as they embark on careers within the legal profession. “Experience from the Centre for Corporate Health shows that, in some cases, lowered psychological and emotional well-being is a contributing factor to the submission
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BUSINESS STRATEGY
CORPORATE HEALTH THE DOMINO EFFECT Almost half of the healthcare costs in Australia are avoidable through lifestyle/behaviour-related changes. The main causes of associated illnesses are: ff Poor nutrition ff Physical inactivity ff Smoking ff Stress
THE LINK BETWEEN PHYSICAL AND PSYCHOLOGICAL WELLNESS Research shows that those who undertake regular exercise have better mental health and emotional well-being and lower rates of mental illness. In addition, studies tracking people over time show that taking up physical exercise appears to reduce the risk of developing mental disorders. For instance, a 2011 Dutch study of more than 7,000 adults found that doing exercise reduced the risk of developing a mood or anxiety disorder over the following three years, even when controlling for socio-economic factors and physical illnesses. However, the relationship between exercise and mental health is “complex and bidirectional” – in that inactivity can be both a cause and consequence of mental illness, according to a 2013 study, Exercise and Mental Health: An Exercise and Sports Science Australia Commissioned Review. “When people get a problem like depression or severe mental illness, it affects their motivation and enjoyment of life, and that can drive physical activity down. But there’s also probably a reciprocal effect, in that when they exercise less, that seems to make [their mental health] matters worse,” says Anthony F Jorm, one of the paper’s authors.
of psychological injury claims in the workplace,” says Clements. “Over the last 15 years, we have observed a significant decline in self-efficacy – a belief in one’s competence and confidence to cope with demands and pressures – and this is having a negative impact on a person’s capability to do their job. Moreover, in many cases we are seeing a
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While employers may be tempted to tackle each of these separately, Max Andreaus, general manager of CareTrac, suggests that addressing inactivity initially has many benefits that spill into other areas. For instance, it generally motivates people to take better care of their diet, and it immediately improves their capacity to handle stress, and so on. “In 2008, the economic cost to employers for lost productivity due to illnesses related to physical inactivity alone was estimated to be an amount equivalent to over $1,000 per employee in today’s terms,” says Andreaus. “Generally speaking, physical activity will improve our quality of life and our physical fitness.” Some benefits of regular exercise include: ff Improved sleep ff Increased endurance ff Stress relief ff Improved mood and morale ff Increased stamina and energy ff Increased mental alertness ff Weight control ff Reduced cholesterol ff Reduced risk of cardiovascular disease ff Reduced risk for type 2 diabetes and metabolic syndrome
reduction in an individual’s ability to return to functioning following a mental health setback, as their capability for overcoming obstacles and barriers is diminished.” Building and strengthening resilience is not a sprint; it takes time to bridge the gap between knowing what is good for your well-being and resilience, and actually embedding it into your everyday life and doing it. Any resilience initiative should be run over a series of sessions, with time for participants to put key skills and strategies into practice in-between sessions, which is how the Centre for Corporate Health’s resilience education program, The Resilience Box, is formulated. Pre- and postresilience measures are a good way to track the development of resilience capability.
A multifaceted approach Mens sana in corpe sano. This famous
phrase from Juvenal represents the basic belief of the Romans that a healthy mind and body are not mutually exclusive – and they weren’t entirely wrong. There is an ever-growing pool of evidence to indicate that a strong relation ship exists between physical activity and psychological health. Furthermore, it appears that physical inactivity may be the cause and/or consequence of poor mental health in some instances. Ideally, employers should take a multi faceted approach to employee well-being, rather than just concentrate on one area. “Physical health has a big impact on our psychological well-being and should be considered as part of any well-being program,” says Clements. “For example, it has been shown that physical exercise can be more effective than antidepressant medication for the treatment of mild to moderate depression.”
OPINION
THE ART OF COPYRIGHT While giving artists greater ownership over their works, the TPP, in New Zealand, also threatens to curtail their muse. Kari Schmidt reports THE 20TH century saw far-reaching shifts occurring in the fine arts, leading to the explicit appropriation of images and other artistic works. Such appropriation aimed to overthrow artistic convention and challenge the established capitalist, patriarchal and colonial narratives of modernism, as well as its emphasis on high and low art and the concept of originality. In contrast, copyright law asserts that an artist’s work is their property. However, copyright law is motivated by a desire to facilitate creativity; the idea being that enabling artists to profit from their work will encourage them to produce. Similarly, art is not an area entirely distinct from economics. In some cases artists can make millions from pieces based on overt appropriation, their studios more akin to factories than the traditional artist’s atelier. A line ought to be drawn as to when appropriation will and won’t be legitimate. This line can be found in the legal exceptions to copyright: fair use (in the US) and fair dealing (in Britain, Australia, Canada and New Zealand). The exceptions permit the use of copyrighted work for purposes such as criticism and review, research and private study, news reporting and parody and/or satire. Fair use is particularly flexible and adaptive with regard to the creative process: the transformative use criterion it employs requires the secondary work to add something new to the original in terms of purpose, message or character. Case law in the US reflects an increasingly liberal approach, recognising that almost always appropriating artists will comment on the
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original or recontextualise/transform it to some extent, and that transformative works will hardly ever compete with the market of the original. For example, in one case, appropriation artist Richard Prince utilised photographs taken by Patrick Cariou of Rastafarian culture. The judges compared the
satire, recognising that the line between parody and satire can be very fine. The limited nature of New Zealand’s fair-dealing provisions has resulted in much uncertainty within the arts, exacerbated by the lack of case law on the subject. For example, there’s Mark Rayner’s 2014 piece, Black Widow. The work, a rug, was based on a photo of Kiwi murderer Helen Milner in court during her trial. The artwork was challenged by the owner as a copyright infringement. While some parties considered copyright had been clearly infringed, others thought the work was a legitimate reinterpretation. The artist himself noted the transformative nature of the work, asserting that it had been changed significantly enough to make it a new work in its own right. Similarly divergent impressions occurred in 2005, when Peter Vink reproduced in paint a photograph by Richard Spranger. While Spranger believed copyright infringement had occurred, others
“Art is not an area entirely distinct from economics – in some cases artists can make millions from pieces based on overt appropriation, their studios more akin to factories than the traditional artist’s atelier” aesthetics of the two artists. Cariou’s Yes Rasta series comprised black-and-white, classical portraits, while Prince’s images were huge, colourful assemblages. Although elements of Yes Rasta have been used in Prince’s work, Cariou’s photos are virtually unidentifiable in most of them. Prince’s works are also different in meaning. Through his appropriation, Prince challenged the colonialism of Yes Rasta. Cariou’s images, as photographs, are authoritative and relate a narrative about the figures as natives, close to the earth. Prince disrupts this narrative by including technological objects in the photographs. The artists were also catering to two different markets: Cariou’s work wasn’t sold in the high-end art market to which Prince catered. While Australia, Canada, Britain and the US allow for parody, New Zealand does not. Australia, the US and Canada also permit
considered that painting from photographs is acceptable practice and a new interpretation. While New Zealand has increased its copyright durations in keeping with the other countries discussed here as a result of the TPP, it has failed to expand its fair-dealing provisions to account for the aesthetic and philosophical characteristics of modern artistic movements to provide for the flexibility and certainty in appropriation that artists require. A review of the NZ Copyright Act is set to take place upon the conclusion of the TPP – one that will hopefully address this discrepancy. Excerpts of this work are included in the New Zealand Intellectual Property Journal, published by LexisNexis – Appropriation Art: Fair Use, Fair Dealing and Copyright Law [2015].
Kari Schmidt is a law clerk working at Simpson Grierson with an interest in intellectual property, and the intersection between law and the arts.
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