2015 The Full Bench Ed 3

6. From the UTS LSS – President and Vice President (Education) 7. Editorial 8. Editors’ Question 10.

Near enough is not good enough – Giselle Capacchione 11. Adverse Costs: Community Legal Centres in crisis – James McGrath 12. Changes to the way the Legal Profession is Regulated: What you need to know Max Mikha 14. Are they insane? – Robert Size 17. A brief note on ADR and the Court system – Dr Nicky McWilliam and Tracey Yeung 19. The Modern Lawyer – Claudia Neal-Shaw 22. Retaining gains has never been so hard – Jason Corbett 23. Lea Armstrong inherits the Crown – Neeharika Mandula and Laura Bernhardt 25. Administrative Justice in a Digital Era – Dominic Smith 28. A mediated concern? – Chris Nowland 31.

A SLAPP in the face – Adriana Abu Abara 33. Why Lawyers keep entering Masterchef – Kate Sammut 34. China-Australia Free Trade Agreement 101: The Basics – Ashleigh Barnes 35. Stop. Hammer Time. – Bianca Newton and Kate Kemp 37. 10 Words or Less

New Directions: The Australian Legal Profession and Social Changes

TFB 2015 [Edition 03] the full bench Editor in Chief Nicola Colagiuri Editors Kieran Gair Adriana Abu Abara Neeharika Maddula Bianca Newton Designer Simon Blanckensee UTS Law Students’ Society ©

With Special Thanks to

This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society.

Enquiries are to be addressed to the publishers.

Vanessa Jiang, Vice President (Education), and Ashleigh Barnes, President of the UTS LSS, for their guidance, support and contribution to the third edition of The Full Bench in 2015.

Disclaimer

Daniel McKenzie, Susie McKenzie and Co. Kwik Kopy Neutral Bay 6/129-133 Military Rd, Neutral Bay, NSW 2089 Tel: (02) 9953 3077 Fax: (02) 9953 0530 www.kwikkopy.com.au

All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

Images and illustrations All images, unless provided to TFB personally for the purposes of this publication, were sourced from the photo sharing website ‘Flickr’, with attribution provided within the text to specific publishers.

With Further Thanks to

The Full Bench (tfb) is published in Sydney quarterly by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CM5A.01.08, City Markets Campus, Cnr of Quay Street & Ultimo Road Tel: (02) 9514 3448 Fax: (02) 9514 3427 www.utslss.com

The Full Bench 2015 Edition 03

New Directions: The Australian Legal Profession and Social Changes Spring 2015

6.

From the UTS LSS – President and Vice President (Education)

7.

Editorial

8.

Editors’ Question

10.

Near enough is not good enough – Giselle Capacchione

12.

Adverse Costs: Community Legal Centres in Crisis – James McGrath

14.

Changes to the way the Legal Profession is Regulated: What you need to know - Max Mikha

16.

A brief note on ADR and the Court system – Dr Nicky McWilliam and Tracey Yeung

18.

Lea Armstrong inherits the Crown – Neeharika Mandula

20.

The Modern Lawyer – Claudia Neal-Shaw

22.

Retaining gains has never been so hard – Jason Corbett and Laura Bernhardt

24.

A mediated concern? – Chris Nowland

26.

Administrative Justice in a Digital Era – Dominic Smith

28.

China-Australia Free Trade Agreement 101: The Basics – Ashleigh Barnes

30.

Why Lawyers keep entering Masterchef – Kate Sammut

32.

Stop. Hammer Time. – Bianca Newton and Kate Kemp

34.

10 Words or Less

From the UTS LSS

Editorial

From the UTS LSS President

‘If there is one thing that unites the legal profession, it is an attack on that sacred litmus of democracy: the rule of law’ – Gillian Triggs (President of the Australian Human Rights Commission)

From the UTS LSS Vice President (Education)

6

Welcome back to law school for the Spring semester and welcome to the third edition of The Full Bench for 2015, the quarterly academic journal proudly brought to you by the University of Technology, Sydney Law Students’ Society.

The Australian legal profession is certainly heading in New Directions, and it is important, as both law students and members of society, to be aware of where it is heading. This edition demonstrates that some changes are necessary.

Take the positive steps towards gender equality and the attempts to overcome the mental health problems faced by many members of the profession as examples. Conversely, other changes are unclear and it is crucial that as the profession transforms, we consider and critique where it is heading and the impact of these movements. While we cannot anticipate all consequences that will arise as the profession changes, it is important that we are cognisant of the potential difficulties that may ensue. An obvious example is the broad impact that budget cuts to Community Legal Centres will have on the broader society. However, the China Australia Free Trade Agreement is somewhat less

clear – as is explored on page 35. Who would have foreseen potential danger to the civil liberties of Australian lawyers working with our largest trade partner?

First and foremost, I would like to thank our exceptional Publications Director, Nicola Colagiuri.

I would also like to thank her support team, The Full Bench Subcommittee, comprising of Adriana, Kieran, Bianca and Neeharika for all their hard work in piecing this together. The guidance and efficiency from our Vice President (Education), Vanessa Jiang, was invaluable. Thank you also to our fantastic designer, Simon Blanckensee.

Last, I thank our sponsors for this edition of The Full Bench, Clayton Utz, and of course, our most valuable resource and the cornerstone of our academic publications, our contributors.

I hope you enjoy the publication and watching the profession progress and change in the coming years. May it do so for the better!

It is no doubt important for law students to keep an eye on the current and future trends of the Australian legal profession, as they decide whether it’s a career worth pursuing. Should they then choose a legal career, it becomes even more important to stay on top of the movements to be able to excel in the field.

The weight placed on mental health, for one, has undergone a serious reassessment in firms and legal centres alike, with a plethora of programs implemented over the past few years to combat the increasing rates of depression and anxiety in lawyers. As the industry transforms to counter this movement, we see concurrent advancements towards diversity, the appreciation of various means of identification, and gender quality, to name only a few. Technological booms and reforms in legal practice and procedure continually take the industry in new directions, and this edition seeks to address, comment and criticise these.

As we get back into the swing of semester, The Full Bench provides the perfect study break. I hope that you enjoy this edition.

Vanessa Jiang Vice President (Education) UTS Law Students’ Society

New Directions: The Australian Legal Profession and Social Changes

Ashleigh Barnes President UTS Law Students’ Society

Welcome to the third edition of The Full Bench for 2015!

Thus far, the 2015 TFB team and its contributors have sought to enlighten your views on issues relating to laws, old and new, and the ramifications of these legal practices across various topical contexts. As important as this kind of legal news is, what may be of greater importance, in a practical sense at least, are the issues surrounding the current state of the legal profession.

In our third edition, ‘New Directions: The Australian Legal Profession’, the TFB team and our contributors aim to shed light on current and future trends operating to alter the landscape of the Australian legal sphere. TFB believes that it is critical for UTS students, as lawyers in the making, to be aware of the state of the workforce we will inherit. Technology, market relations, mental health and legislative reforms have all contributed to the transformation of Australian legal practice in recent times.

Our contributors have written critically informative articles for the TFB readership. In our third edition, The Full Bench couldn’t be prouder to present to our readers an exclusive interview with LEA ARMSTRONG, the newly appointed first female Crown Solicitor in NSW! Check out this exclusive Question & Answer by TFB editor NEEHARIKA MANDULA and student LAURA BERNHARDT on pages 23-24.

On page 11, JAMES MCGRATH explores the impact of the funding cuts made to Community Legal Centres this year, and attests to the importance of these legal services. UTS:Law’s very own DR NICKY MCWILLIAM has joined forces with student TRACEY YEUNG to deliver an informative overview of ADR and the Australian Court System on pages 17-18.

TFB would not be possible without the motivation and dedication of our wonderful contributors – we thank you all for your hard work and hard-hitting words. We’d also like to thank the UTS LSS President, Ashleigh Barnes, and the Vice President (Education) Vanessa Jiang for all of their ongoing support and assistance. TFB has never looked better and that is all a credit to Simon Blanckensee, our scarily talented designer who has worked tirelessly to give TFB its new flair.

Be sure to ‘Like’ The Full Bench on Facebook to keep up-to-date with all TFB related news and ways to be involved with TFB this year and for the rest of your law degree!

In this edition, TFB team encourages you to be aware of the changes that are being made to the legal profession. But more than that, to critically question these changes, so that we, the next generation of lawyers, have a say in the direction that our profession takes.

Nicola, Neeharika, Adriana, Kieran and Bianca.

New Directions: The Australian Legal Profession and Social Changes

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Editors’ Question Few documents, if any, parallel the Magna Carta’s social, historical and legal importance - it is a symbol of liberty and justice. Earlier this year, we celebrated the 800th anniversary of the Magna Carta, a document many have heard of but may not be aware of its significance.

It is timely for the TFB editors to reflect on the origins of the Magna Carta and its subsequent impact on the legal profession. Arguably, many of the rules of laws today were based on the Magna Carta principles and in this way, its legacy lives on.

Kieran says: Neeharika says: Few monarchs have been less mourned than King John, the youngest of Henry II’s five sons. No King of England has ever taken his name and he suffers the embarrassment of apparently being named after his sister Joan.

History has not been kind to King John.

Yet, while his name and legacy was long ago tossed into the dustbin of history, England’s worst King is remembered for one thing: the day he affixed his seal to a charter that would be forever adored by democracies the world over, the Magna Carta.

The Magna Carta is often thought of as a bulwark against corruption, a protector of human rights and the great upholder of due process.

However, the story of the Magna Carta is just that: a story. The Magna Carta promised to protect church rights, protect a group of rebel barons from imprisonment and allow access to swift justice. Neither the unpopular King nor the barons stood behind their commitment and the Pope promptly annulled the charter.

Re-read, revised, appropriated and misappropriated, the Magna Carta’s power stems not from what is written upon it, but from how we have chosen to interpret it. Its legacy could never have been foreseen by its authors - a lesson today’s lawmakers could reflect on. Perhaps, that is how history turns out: not the way it was meant to.

Adriana says: Nicola says: For most of us, the Magna Carta is nothing more than a legal fiction constructed centuries ago by social elite, bearing no relevance on our day-to-day lives. However, the Magna Carta matters both for what it stated in 1215 and, perhaps more significantly now, for what it has come to symbolise, even though this was not envisaged or intended by those who drafted the Great Charter 800 years ago.

In March 2014, the inventor of the World Wide Web, Tim Berners-Lee, called for an Internet Magna Carta to ‘protect and expand the rights of users to an open, free and universal web’. And in Australia, in 1996, activist Albert Langer evoked Magna Carta in his appeal to the Federal Court against a prison sentence for violating an injunction by encouraging people to vote in such a way as not to distribute preferences to the major political parties. Disagreeing with Victorian Supreme Court Justice Beach, he argued that, ‘the rule of law is a pre-condition, not a “paramount feature” of democracy’ and that ‘resistance to usurped or tyrannical authority is an essential component of the rule of law formerly recognised as such since the Magna Carta’.

It is this spirit of the Magna Carta that makes it relevant 800 years later, both to those of us who live in democracies and to those who don’t. It was and continues to be the foundation of our legal liberties – its spirit and clauses have been absorbed into common law so that the Magna Carta remains alive in the legal profession, both in Australia and abroad.

Bianca says: Did you ride in on a horse to class today?

Perhaps you brandished a sword at that guy who picked apart your argument on the positives of attorney-client privilege? No? Like these, one might think the Magna Carta or the ‘Great Charter’ is an anachronism, an irrelevance situated in a modern day legal system. Despite its position in history, one could be tempted to argue that this centuries old document still contains significant relevance. This is supported by the fact that ‘it has been cited more often by litigants and judges in the last two decades than at any other time in the history of the common law in Australia and New Zealand’.

Firstly, evidence of the continued impact of this document on the legal profession is clearly seen by way of its place in Australian common law.

It embodies ‘the fundamental common law doctrine of legality and the right of access to justice.’ The symbolic nature of the Magna Carta is best demonstrated in Jago v District Court in which the court examined the issues of the right to a speedy trial and the abuse of process. Isaacs J summarised the Magna Carta’s contributions as ‘the groundwork of all our Constitutions.’ Furthermore, the argument in favour of the Magna Carta’s positive contributions highlights that even medieval statues have the ability to influence modern laws. For example, in enacting the Imperial Acts, the ACT, NSW, Queensland and Victoria, all saw the implementation of Chapter 29 of the Magna Carta. This chapter largely embodies the notion of liberties and freedoms, valued by Australians today.

Due to this importance placed on freedoms and liberties, it is evident that Australian litigants and law students alike are still reciting the sentiments of the Magna Carta. While the document itself was born out of a period built upon the inequality of a strict feudal system, Australia, as a democracy, continues to interpret this document as an expression of human rights.

First thing’s first: the law – and maybe democracy – would not exist as it is today without the Magna Carta. In the same way that say, iPhones wouldn’t have existed without the technology that invented the Motorola “brick” phone; it doesn’t mean the former is still relevant today, even though it was crucial to the formation of the latter. At its most effective, the Magna Carta established a rule of law, prohibited the imprisonment or persecution of a person without a fair trial, and to give credit where credit is due, those definitely stood the test of time.

But 800 years on, it’s important to ask the Magna Carta: “what have you done for me lately?” Well, perhaps surprisingly, an area where the Magna Carta has had a significantly understated impact is on the development of Human Rights. When the Universal Declaration of Human Rights was adopted in 1948, it drew upon Magna Carta. The same can be said of the 1689 Bill of Rights. The European Convention on Human Rights, drafted after the Second World War, followed soon after. Today, the small bundle of vital protections is incorporated into British law by Human Rights Act is seen as a modern day Magna Carta.

And what about Australia? While politicians and lawmakers discuss the Magna Carta with pride, not many will rally for human rights with the same reverence or excitement. As the celebration of the Magna Carta continues into its 800th year, the debate about a Bill of Rights emerges in waves but never quite seriously enough effect legislative change. So maybe it’s time to ask if we’ve warped the legacy of the Magna Carta to reflect the safest and most uncontentious values of democracy, but ignored the principles that aren’t reflected as clearly in our society.

Turn to a friend – a non-law student friend – and ask them what the Magna Carta means to them. Now tell them “No, I’m not talking about Jay-Z’s lacklustre follow-up to Watch the Throne.” Jokes aside, these kinds of responses are perhaps evidence of the ancient document’s waning relevance. After all, the Magna Carta was drafted in 1215 – let’s face it – it’s a glorified agreement about tax.

That’s right, tax.

The document is taken to be foundational in the journey from monarchy to principles of responsible government, the kind of checks and balances on power that preceded our own Constitution. But in reality, the framers of the document were largely concerned with protecting themselves, their rights and – most importantly – their money. And if you’re not already convinced that somehow everything has something to do with tax in this post-tax season, brace yourself. Before King John signed the Magna Carta, before he was even king, rebellion was brewing. Both King Richard (John’s older brother) and John had incurred huge expenses in war to secure Normandy and Anjou. And where do Kings get their pocket money? Tax. But it was under John that the Barons lost their nerve, rebelling. And when John couldn’t keep his Crown any longer without succumbing to their demands he ran to Runnymede and signed the damn thing (and then promptly ran to the Pope to try to have it declared invalid). Under the Charter, taxes couldn’t be levied without the kingdom’s general consent; the Crown and its officers couldn’t seize goods without payment.

In amongst all of this protection of assets and against arbitrary taxation, Clause 10 also offers protection against Jewish creditors. These were largely put in place to protect wealthy aristocratic widows with large estates. So while it would be unfair to say that the Magna Carta is entirely irrelevant, there are elements of it, which inform and remain in our current laws. But these are the few – very few – that we have kept and even they have formalised in the procedures of court.

1 Sam Warner, ‘800 years on and still guaranteeing our freedoms?’, The Guardian, 25 July 2015 <http://www.theguardian.com/uk-news/2015/jun/15/magna-carta-legal-significance>.2 Elizabeth Mathers, ‘The Magna Carta – How did it survive, is it relevant today?’, Museum of Australian Democracy, 27 July 2015, <http://moadoph.gov.au/blog/magna-carta-how-did-itsurvive-is-it-relevant-today/>. 3 David Clark, ‘The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law’ [2000] 24(3) Melbourne University Law Review <http://www5.austlii.edu.au.ezproxy.lib.uts.edu.au/au/journals/MelbULawRw/2000/34.html#fnB38> 4Commonwealth, The Legacy of Magna Carta: a Joint Commitment to the Rule of Law, Parl Paper No 39 (2002) <http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/pops/pop39/lairg>.5Jago v District Court of New South Wales [1989] HCA 46.

6Ex parte Walsh and Johnson (1925) 37 CLR 36, 79. 7 Commonwealth, above 2.

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New Directions: The Australian Legal Profession and Social Changes

New Directions: The Australian Legal Profession and Social Changes

9

No,

that’s not your subconscience talking. That’s just the title of this article. But it’s not unusual if ‘near enough is not good enough’ is your mentality when it comes to fulfilling your commitments, be they work, social or academic.

It is these elevated standards of excellence and the high stakes of the profession that render one in three legal students and professionals at risk of depression. This statistic reflects a scarily large number of peers who have or will experience symptoms ranging from a lack of concentration to withdrawal from family and friends, and most tragically, to suicidal thoughts.1 Justice Shane Marshall of the Federal Court recently became the first sitting judge to be interviewed about his experience with depression. The stigma surrounding the illness, his sense of pride and his upbringing were all reasons he used to put off seeking help. He contends that the pressures of the industry are only worsening: “One is almost tempted to go to law school and put up a sign up: ‘Beware: toxic profession’”.2 While the judiciary has been reluctant to speak out on the issue, the greater difficulty lies with reaching individuals employed at smaller firms or barristers who practise alone. The lack of resources and isolation puts these professionals at an extremely high risk of mental illness, particularly those working with traumatised clients such as seen in the criminal sphere.

The ramifications of the undiagnosed mental illness problem in the profession lie not only with the individual, but also with the client and the entire legal system. A lawyer who is not prepared for the degree of counselling required by their client throughout their legal journey may find their client less cooperative, unsatisfied and even unwilling to pay costs.3 In more severe cases, where a lawyer’s undiagnosed mental illness becomes mental infirmity, the ultimate outcome can be that the individual is struck off the roll. The principle consistently applied by the Legal Profession Complaints Committee has been as follows:

“The object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession rather than punishment of the practitioner, and that, therefore, the consequences for the practitioner may need to be more severe than they would be if the only object of the proceedings was one of punishment”.4

Near Enough is not Good Enough As prospective Law students, we all know what stress is. What you may not know is that those bouts of stress can turn into something worse and that something worse is following Law students into their Legal jobs. Giselle Capacchione, the 2015 UTS LSS Student Wellbeing Officer, examines why mental health follows Law students and practitioners and what can be done to lessen its impact.

Where the practitioner’s mental illness develops to a point considered to pose a risk to the public, the consequences for the practitioner are very severe. So, where do we go from here?

The spotlight is now on the legal industry to create systemic change that ensures the mental health of legal professionals is both regulated and supported. A push for greater awareness and improved education and support services is coming from not-for-profit organisations such as the Tristan Jepson Memorial Foundation. Other services available include the Lawyers Assistance Program Hotline, UTS Counselling Service and Beyond Blue to name a few.

It seems that emerging research amongst a vastly more open dialogue on mental health is demonstrating that there is a need among law schools to provide practical mental health training to students. This would prepare students for the challenges in providing support to their clients but also aid in recognising when they require support themselves. This is necessary in order to make a move from treatment to prevention.

The duty of the lawyer may arguably be to the court. But first and foremost there needs to be a duty to oneself. When it comes to taking care of one’s own mental health near enough is simply not good enough.

1 The Law Society of New South Wales Law, Mental Health Statistics and Seeking Help (2009) <https://www.lawsociety.com.au/about/YoungLawyers/MentalHealth/Statistics/index.htm>. 2 ABC Radio National, ‘Caught in the Stigma Trap: The Cost of Mental Illness in the Workplace’, Background Briefing, 22 February 2015 (Di Martin) <http://www.abc.net.au/radionational/programs/backgroundbriefing/toxic-law-judge-talks-openlyabout-depression/6130792>. 3 E S Schlesinger and G E Cohen, ‘Counsel for Counselors: How Mental Health Professionals Can Help Lawyers and Their Clients’ (1987) 14 Bar Leader 14 - 17, 31. 4 Re Maraj (a Legal Practitioner) (1995) 15 WAR 12.

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New Directions: The Australian Legal Profession and Social Changes

New Directions: The Australian Legal Profession and Social Changes

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Adverse Costs: Community Centres in Crisis

Money, money, money, and why 156,854 people were turned away from Community Legal Centres in one financial year.

The Australian government has gotten into the nasty habit of cutting funding of legal services for the underprivileged. James McGrath delves into the dastardly cuts to funding for Community Legal Centres and details what the practical consequences will be.

As the industry prepared for the coming of the Legal Profession Uniform Law, one could be excused for missing the release of the 2014 Census Report from the National Association of Community legal Centres (NACLC).1 Across Australia, 143 centres offered legal assistance to disadvantaged people, 25% with a disability and 13% identifying as indigenous.2 The lawyers and volunteers who keep these centres operating are at the forefront of promoting large-scale access to justice. And yet, as we celebrate new directions for the industry, the Census Report revealed a startling a truth about our investment into the future of these services.

Due to under-resourcing, conflicts of interest and prioritising clients, community legal centres report that up to 156,854 people were turned away in the 2013-14 financial year.3 156,854 people.

That’s enough to fill the Sydney Cricket Ground 3.5 times over, or nearly 60 times the number of law students at UTS.4 Background In a 19 May letter to George Brandis, Commonwealth Attorney-General, six of his state and territory counterparts expressed a fear of community services becoming another victim in the relentless drive for budgetary surplus:5 The forecast cuts represent an abrogation of the Commonwealth Government’s responsibilities to this important area of service delivery to some of the most vulnerable in our community.

The letter was penned just two months after an Abbott-Brandis spectacular – first cutting $25.5m in funding to legal aid commissions and centres over the next two years, then reversing the decision after intense public pressure.6 After restoring the $25.5m, the States and Territories claimed that the Commonwealth had ‘quarantined’ a large percentage of funds for particular centres.7 By guaranteeing these funds over the next two years, the Commonwealth has secured funding until the next election and left a black hole thereafter.

In effect, the decision has created disproportionate cash flow under a five-year agreement, and risks the viability of many legal services beyond 2017. Michael Smith, NACLC Chair, claims that national cuts may reach 30% of current levels.8 So where does that leave those people dependent on community centres for access to the law?

Time for change Many in the industry have rallied around a 2014 report from the Productivity Commission, Access to Justice Arrangements, recommending an injection of $200 million into community legal centres to address urgent needs.9 Liana Buchanan of the Federation of Community Legal Centres and Michael Smith of NCALC have both publicly supported proper funding for a system in crisis: These are not just statistics, but real people, often highly vulnerable, who cannot receive the help they need. It’s also very difficult for staff and volunteers to have to keep telling people we can’t assist them.10 Redfern Legal Centre, a case in point, provided assistance to 6700 people in the previous year.11 Since 1977 it has provided free legal assistance in terms of domestic violence, discrimination, police complaints, housing, employment and consumer credit. And yet, it has been forced to allocate resources for a new funding campaign as current government support covers only half of the legal team.12 Should the RFL face a further cut to the budget, one can only expect ‘turnaways’ to increase and the standard of legal assistance to fall.

If we are to study, teach or work with the law, we are both fortunate and privileged. As custodians of a specialized set of skills and knowledge, it is incumbent upon us to work with and empower others. The NCALC report indicated that volunteers contributed nearly 15,000 hours per week in 2013-14, with two-thirds of those being law students or PLT placements.

This is great news. Nevertheless, in light of the high rate of ‘turnaways’ and the Commonwealth funding cuts, community legal centres need volunteers more than ever.

Drop in your CV, spend a bit of time, try to help people help themselves.

In the words of George Brandis, “no additional funding is available”.13 NB: Visit http://www.naclc.org.au to volunteer at a community legal centre near you.

1 National Association of Community Legal Centres, National Census of Community Legal Centres (May 2015) <http://www.naclc.org.au/resources/NACLC_NationalCensusofCLCs_2014_COMBINED.pdf> 2 Ibid 11-12.

3 Ibid 36. 4 The University of Technology Sydney, Facts, figures and rankings (16 June 2015) <http://www.uts.edu.au/about/university/facts-figures-and-rankings> 5 Letter from the Hon John Rau MP, the Hon Martin Pakula MP, Simon Corbell, The Hon Gabrielle Upton, the Hon Yvette D’Ath and the Hon Dr Vanessa Goodwin to George Brandis, 19 May 2015 http://resources.news.com.au/files/2015/05/19/1227360/381257-ag-letter. pdf 6 Katie Walsh, George Brandis makes turn-around over legal aid cuts (26 March 2015) Australian Financial Review <http://www.afr.com/business/legal/george-brandis-makes-turnaround-over-legal-aid-cuts20150325-1m74bm> 7 Above n 4. 8 Michael Smith, ‘Over 150,000 people turned away from Community Legal Centres each year’ (media release, 15 June 2015). 9 Australian Government Productivity Commission, Access to Justice Arrangements (3 December 2014) <http://www.pc.gov.au/inquiries/completed/access-justice/report> 10 Above n 8. 11 Redfern Legal Centre, ‘Redfern Legal Centre Appeal’ (undated) <https://www. givenow.com.au/redfernlegalcentreappeal> 12 Ibid. 13 Lenore Taylor, ‘State attorney general fail to win additional federal legal aid funding’ (22 May 2015) The Guardian Australia <http://www.theguardian.com/ australia-news/2015/may/22/state-attorneys-general-fail-to-win-additional-federal-legal-aid-funding>

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New Directions: The Australian Legal Profession and Social Changes

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Changes to the Way the Legal Profession is Regulated

The Legal Profession Uniform Law (Uniform Law) and the Legal Profession Uniform Law Application Act 2014 introduced uniform regulation in the legal profession as of July this year. Max Mikha explores the effect of these changes and the implications for lawyers in NSW and Victoria.

From 1 July 2015, the Legal Profession Act 2004 (Vic) and the Legal Profession Regulations 2005 (Vic) as well as the Legal Profession Act 2004 (NSW) and the Legal Profession Regulations 2005 (NSW) will all be replaced by ‘the Legal Profession Uniform Law (Uniform Law)...[and] the Legal Profession Uniform Law Application Act 2014 together with subordinate legislation’.1 The change to a uniform regulatory regime in both New South Wales and Victoria will arguably change the way in which legal professionals in both these jurisdictions are regulated. While the actual effects of these changes remains to be seen, the ultimate goal of these changes is ‘to harmonise regulatory obligations while retaining local performance of regulatory bodies’.2 What is the Scope and Objectives of the Uniform Law? The Uniform Law will govern all matters relating to the regulation of the legal profession, ‘such as admission, practising certificates, continuing professional development requirements, costs and disclosure, trust accounting requirements, complaints and professional discipline issues’.3 The objectives of the Uniform Law are set out under section 3. They recognise that the Uniform Law has been enacted in order: “to promote the administration of justice and an efficient and effective Australian legal profession, by— (a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the

The Law Society of New South Wales, Practising in NSW Under the Uniform Law: Law Practises - Incorporated Legal Practise (ILP) (2015) <http://www.lawsociety.com.au/cs/groups/public/documents/ internetcontent/1021145.pdf>.The Law Society of New South Wales, A new framework for practising law in NSW (2015) <http://www.lawsociety.com.au/ForSolictors/professionalstandards/Ruleslegislation/ nationalreform/>.The Law Society of New South Wales, A new framework for practising law in NSW (2015) <http://www.lawsociety.com.au/ForSolictors/professionalstandards/Ruleslegislation/nationalreform/>. Legal Profession Uniform Law NSW, s 3. Laurel Terry, Steve Mark and Tahlia Gordon, ‘Adopting Regulatory Objectives for the Legal Profession’ (2012) 80(6) Fordham Law Review 2685, 2687.Legal Profession Uniform Law NSW, s 3(c). Legal Profession Uniform Law NSW, s3(d).Legal Profession Uniform Law NSW, s394(2).Legal Profession Uniform Law NSW, s398(2); Law Institute of Victoria, The Legal Profession Uniform Law (2015) <http:// www.liv.asn.au/For-Lawyers/Regulation/Legal-Profession-Uniform-Laws/Fact-Sheets/What-is-Legal-Profession-Uniform-Law>.Legal Services Council, Key Differences Between the Uniform Law and the New South Wales and Victorian Legal Profession Acts (2015) <http://www.legalservicescouncil.org.au/Documents/information-res/key-differences.pdf>. Legal Profession Uniform Law NSW, s172(1).Legal Services Council, Key Differences Between the Uniform Law and the New South Wales and Victorian Legal Profession Acts (2015) <http://www.legalservicescouncil.org.au/Documents/information-res/key-differences.pdf> ; Legal Profession

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New Directions: The Australian Legal Profession and Social Changes

protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and (f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained”.4 The addition of these regulatory objectives has been deemed as “necessary and jurisdictions that have not adopted regulatory objectives should seriously consider doing so”.5 Thus, by introducing the first regulatory objectives for the legal profession in Australia, there has been very little criticism of this aspect during the drafting process. Compared to other jurisdictions, certain aspects of the objectives remain similar while other parts of the Australian objectives are notably different. While the ‘protection of clients... and... the public’6 appears to be a common theme in Australia and other jurisdictions including the UK, the reference to ‘empowering clients of law practices to make informed choices about the services they access and the costs involved’ 7 seems to further emphasise the importance of transparency between lawyer and client. This has arguably been reflected in the changes made in the regulatory regime which will be looked at below.

Who are the Regulatory Bodies?

Under the Uniform Law, both the Legal Services Council and office of Commissioner for Uniform Legal Services Regulation have both been established. The objectives of the Council include: “(a) to monitor the implementation of the Legal Profession Uniform Law and ensure its consistent application across participating jurisdictions; (b) to ensure that the Legal Profession Uniform Framework remains efficient, targeted and effective, and promotes the maintenance of professional standards; (c) to ensure that the Legal Profession Uniform Framework appropriately accounts for the interests and protection of clients of law practices”.8 The Commissioner’s main objectives include overseeing the ‘implementation of the dispute resolution and professional discipline elements of the Uniform Law’9 as well as promoting all the requirements of the Uniform Law. What changes have occurred?

I Consumer Benefits The noteworthy changes that have been made in the legal profession regulatory regime include the introduction of new costs disclosure obligations, new obligations relating to billing as well as changes to dispute resolution and professional discipline which have now seen the implementation of a more structured complaint resolution process. The ultimate goal of all these changes is to improve protection for clients.

III Costs Assessment Under the new Uniform Law, ‘cost assessors can refer a matter to the NSW or Victorian Commissioner if they consider the costs were not fair and reasonable’.12 The old regulatory regime only allowed assessors to refer a matter if the costs were considered to have been ‘grossly excessive’13.

Furthermore, if an assessment made raises any issues that ‘may amount to unsatisfactory professional conduct or professional misconduct’,14 it is now mandatory that the matter be referred to the Commissioner. Prior to the introduction of the Uniform Law, there was only a discretionary duty to refer the matter in Victoria. These changes to costs assessment obligations places a further responsibility on legal practitioners and ultimately increases their accountability for any misconduct in comparison to the previous legislative scheme.

IV Client Consent The NSW Legal Services Commissioner John McKenzie believes that ‘perhaps the biggest day-to-day change that the legal profession is going to experience’15 through the Uniform Laws is the express requirement that legal practitioners ‘must make all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs’16 whether that be through a face-to-face meeting or a telephone conversation. McKenzie further recognises that this new principle will mean that if an earlier costs estimate for a matter ‘is no longer accurate but will be exceeded, then the lawyer has an ongoing responsibility to make sure they communicate that to the client... This means more than providing clients with huge, multipage, finely printed cost-disclosure forms’17.

Benefits for Legal Practitioners Ultimately, the Uniform Law is meant to simplify the legal profession through the fact that practitioners will be able to practise across multiple jurisdictions ‘under uniform regulatory standards with a single costs agreement and identical back office systems and precedents’.18 Smaller firms and sole practitioners will also ‘benefit from a short, standard-form of costs disclosure which may be provided as an alternative to full costs disclosure in matters where total costs are not likely to exceed $3,000’.19 While some have questioned whether the uniform scheme can actually be successful given that only New South Wales and Victoria have agreed to implement the Uniform Law, the two jurisdictions make up ‘almost three quarters of Australia’s lawyers’.20 There is the hope however that the other States and Territories will eventually embrace these changes once they have had a chance to observe the implementation and operation of the new scheme.

II Legal Costs Under the old statutory regime, ‘the question of whether the costs were fair and reasonable arose as a factor in costs assessments and reviews’.10 However, under section 172 of the Uniform Law, the requirement now recognises that ‘a law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are... proportionately and reasonably incurred; and... proportionate and reasonable in amount’.11 This consequently places the onus on lawyers from the outset whereby they now have a duty to charge legal costs that are fair, proportionate and reasonable.

Uniform Law NSW, s172(4). Legal Profession Act 2004 (NSW), s393. Legal Services Council, Key Differences Between the Uniform Law and the New South Wales and Victorian Legal Profession Acts (2015) <http:// www.legalservicescouncil.org.au/Documents/information-res/key-differences.pdf>; Legal Profession Uniform Law NSW, s202.Time Base, The Uniform Legal Profession Laws - Changes to Legal Practise (2015) <http:// www.timebase.com.au/news/2015/AT234-article.html>.Legal Profession Uniform Law NSW, s174(3).Time Base, The Uniform Legal Profession Laws - Changes to Legal Practise (2015) <http://www.timebase.com.au/ news/2015/AT234-article.html>.Legal Services Council, Overview of the Uniform Law (2015) <http://www.legalservicescouncil.org.au/Documents/information-res/Overview_of_Uniform_Law.pdf>. Attorney General, ‘NSW and Victoria sign up to uniform legal profession regulation’ (Joint Media Release, 6 December 2013) <http://www.justice.nsw.gov.au/Documents/Media%20Releases/2013/MR13_uniform_legal_profession_ regulation.pdf>. Attorney General, ‘NSW and Victoria sign up to uniform legal profession regulation’ (Joint Media Release, 6 December 2013) <http://www.justice.nsw.gov.au/Documents/Media%20Releases/2013/ MR13_uniform_legal_profession_regulation.pdf>.

New Directions: The Australian Legal Profession and Social Changes

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A Brief Note on ADR and the Court System

The modern conception of alternate dispute resolution (ADR) has its origins in criticism of the formal court system, of the characteristic delays, costs, technical procedures and formality.

As a dispute resolution mechanism, ADR has become institutionalised in the Australian court system with provisions permeating legislation and court practice rules through either mandating or requiring consideration for judicial referral to some form of ADR. These non-adversarial processes (in particular mediation) are integral to the daily practice and lexicon of adjudication processes in the court system affecting not only the obligations of judicial officers, but how legal and court processes are conceptualised.

Non-adversarial processes emanate from multiple and complementary areas. Some of these are well known as ADR processes and such examples are mediation, arbitration, negotiation, evaluation, expert referral and conciliation. Other lesser-known mechanisms are born from disciplines such as managerial justice, participatory justice and therapeutic jurisprudence.

They range from structures of circle sentencing (or forum sentencing),

As a means of resolving disputes between parties, the Australian legal system commonly relies on dispute resolution in the form of mediation, conciliation and expert referral for example. Dr Nicky William and Tracey Yeung combine forces to explore the purpose of alternate dispute resolution and the importance of it in finding justice.

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New Directions: The Australian Legal Profession and Social Changes

to diversion programs, to the restorative, problem-solving approach and similar problem-solving judicial processes. These processes may also include those which are used by the courts but may not involve a judicial determination, however may be an exercise of control, management or engagement by the court.

The fundamental motivation of the legislature in relation to ADR is for efficiency, expediency and cost saving in the court system.1 However, there is mainstream acknowledgement that these largely party-centred practices can also afford privacy in discussions for parties in the exchange of information for potential settlement, as well as enable solutions to be facilitated and considered which may not be available by a court.2 They can also support constructive interaction for ongoing relationships, benefit parties emotionally through bypassing the often stressful motions of litigation, encourage self-determination, promote access to justice and increase the capacity for the parties’ recognition and acceptance in the context of their situation.3 Although the positive aspects of ADR are now well recognised, these processes are not a panacea. Significant challenges, complexities and tensions exist with respect to the suitability of ADR in a given situation,4 the appropriate timing for ADR,5 the efficient use of court resources,6 issues around mandatory ADR,7 the availability of ADR and the type of service and service provider available,8 the importance and intricacies of the legal dispute9 and the potential for cost, delay and diversion from the real issues as a consequence of ADR.10

The court system is embracing ADR and in so doing is becoming increasingly flexible, when possible, in tailoring ADR processes to suit individual cases.11 However this must be balanced not only with delivering justice that is impartial and discharged with due process, but efficiently and cheaply. The statutory empowerment of judges to refer parties to ADR with or without their consent plays an important role to this end.12 However, much still turns on the jurisdiction, structure and location of the particular court concerned, the judicial officer’s familiarity and approach towards ADR, and the resources, needs and interests of the parties.

Dr Nicky McWilliam is a visiting research fellow in the faculty of law and is currently conducting a research study exploring attitudes and perspectives of members of the judiciary in relation to court-referred ADR. Tracey Yeung is a lead student research assistant on the study as part of the Brennan Justice and Leadership Program.

1 Justice James Spigelman, ‘Mediation and the Court’ (2011) 39(2) Law Society Journal 63, 63. 2 Justice Peter McClellan, ‘Some Benefits of Mediation’ [2008] New South Wales Judicial Scholarship 7. 3 Justice Patricia Bergin, ‘The Objectives, Scope and Focus of Mediation Legislation in Australia’ (Speech delivered at the Hong Kong International Arbitration Centre and The Hong Kong Mediation Council, Hong Kong, 11 May 2012) 2. 4 Kathy Mack, ‘Court referral to ADR: the legal framework in Australia’ (2004) 22(1) Alternative Dispute Resolution and the Courts 112-129; Tania Sourdin, ‘Introduction’ (2004) 22(1) Alternative Dispute Resolution and the Courts 1-7. 5 Justice Patricia Bergin, ‘Mediation in Hong Kong: The Way Forward, Perspectives from Australia’ (Speech delivered at the Hong Kong International Arbitration Centre, Hong Kong, 30 November 2007). 6 Chief Justice James Allsop, ‘Judicial case management and the problem of costs’ (FCA) [2014] Federal Judicial Scholarship 16 (An invitation to speak at the Lord Dyson lecture on “The Jackson Reforms to Civil Justice in the UK” hosted by University of New South Wales, Faculty of Law held at Herbert SmithFreehills, Sydney) <http://www.austlii.edu.au/au/journals/FedJSchol/2014/16.html>. 7 Chief Justice Robert French, ‘Perspectives on court annexed alternative dispute resolution’ (Speech delivered at the Law Council of Australia – Multi-Door Symposium, Canberra, 27 July 2009). 8 T F Bathurst, ‘The Role of The Courts In The Changing Dispute Resolution Landscape’ (2012) 35(2) UNSW Law Journal 870, 878. 9 Ibid 879. 10 Nadja Alexander, ‘Mediation on trial: ten verdicts on court-related ADR’ (2004) 22(1) Alternative Dispute Resolution and the Courts 8-24. 11 Chief Justice Robert French, ‘The future of litigation: Dispute resolution in Jurassic Park?’ (Speech delivered at the Bar Association of Queensland Annual Conference, Canberra, 7 March 2009). 12 Civil Procedure Act 2005 (NSW)

New Directions: The Australian Legal Profession and Social Changes

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Lea Armstrong Inherits the Crown Lea Armstrong speaks to Laura Bernhardt And Neeharika Maddula for The Full Bench about her new role as NSW Crown Solicitor and the future of the legal profession.

Right off the bat, degree in hand, Armstrong began work as an Associate to now retired Justice Michael McHugh at the High Court (you may have heard of him), hearing landmark decisions such as Mabo (no big deal, really).

“It was the time of ‘the Mason Court’ – Anthony Mason was Chief Justice, other Justices included Brennan, Deane and Gaudron. To be there to see so many landmark judgments handed down… was an amazing and inspirational experience for someone fresh from university,” said Ms Armstrong.

After having worked as McHugh’s Associate in Canberra, Armstrong began work as a graduate solicitor at Blake Dawson Waldron (BDW) in the early 1990s. “After 3 years at BDW, I moved to the NSW Crown Solicitor’s Office in 1995 when an opportunity arose for me to do a job ‘swap’ with an employee of the CSO who had expressed an interest in working in a private firm.”

The ‘swap’ rolled into a permanent position when the then Crown Solicitor, Ian Knight asked Armstrong to work for him directly in the newly formed Government Law team. From there, Lea progressed to more senior roles. She notes that mentoring and guiding solicitors was a very rewarding aspect of her many roles at the CSO. Prior to commencing her role as CS, Armstrong had moved from the CSO to work as General Counsel for the NSW Treasury where “the most legally challenging but definitely rewarding matters would have to be working on some large scale privatisations for the NSW Government”.

Armstrong cites the passing of the “Poles and Wires” legislation, i.e. authorising the partial lease of State-owned electricity networks, as particularly memorable.

“It was very satisfying to see the legislation to authorise the proposed transactions finally pass through both Houses of Parliament in June this year (after previous Governments, both ALP and Liberal, had been unsuccessful in their attempts to get previous Bills enacted by the State Parliament).”

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New Directions: The Australian Legal Profession and Social Changes

Armstrong’s career path, while impressive, is not conventional.

Going against the tide, Armstrong left the private sector’s oak-panelled boardrooms for the public sector.

“At that time, BDW had only a small government law practice. I was keen to do more public law than was possible at BDW, which meant moving to work for either the Commonwealth or State Government. The CSO opportunity came up, and I put my hand up,” she said.

Now, Armstrong’s vision for more quality legal services provided by the CSO will drive her leadership.

“My vision for the CSO is for the Office to continue to grow and survive in the commercial environment it operates in, it must continue to focus more than ever on the delivery of high quality client service at competitive prices,” said Armstrong.

What is clear is that she advocates the biggest points of difference between the Crown Solicitor’s Office and the private firms is in both pricing and service; “I would hope that during my time as Crown Solicitor the CSO will become the legal provider of choice over private firms for an even greater number of our clients, not just because of pricing, but because of the quality of service”. She also notes that the CSO needs to continue to embrace technology’s potential to efficiently deliver legal services.

Armstrong advises however that providing quality of legal services should not undermine work-life balance. “Lawyers tend to work pretty hard and I think finding a work-life balance is always difficult for lawyers, both men and women.”

“Clients don’t like to wait too long for the legal work you are doing for them, and that puts lots of pressures on lawyers to complete the work required in a short timeframe. That in turn means lawyers tend to stay back in the office late, or come in on weekends, to keep on top of things. Lawyers need to remember to look after their health so they don’t ‘burn out’.”

Armstrong also hopes that the decades will see the legal profession take a more co-operative approach.

“Law tends to attract many “Alpha” type personalities, which in turn can engender a fair bit of competition between lawyers. I would love to see a more co-operative approach between lawyers not only in litigious proceedings, but also in other areas of legal work such as the negotiation of commercial contracts.”

“A more co-operative approach could encompass not only greater use of mediation and other ADR techniques in many types of legal proceedings, but also more of a mindset that values ‘problem-solving’ to address legal issues - lawyers on ‘opposing sides’ putting their heads together to think of solutions to the issues.”

“ My vision for the CSO is for the Office to continue to grow and survive in the commercial environment it operates in, it must continue to focus more than ever on the delivery of high quality client service at competitive prices.”

She adds that this approach could also help to reduce unnecessary tensions between lawyers on opposing sides as well as the stress on clients as they go through the legal process.

As for the futures of law students aspiring to a career like hers, Armstrong encourages all students to dabble in legal work, no matter the scale or pay.

“It’s good to do volunteer work at community legal centres and similar – both help the community and gives law students valuable experience. It’s also good to look for work as a paralegal in a small, medium or large firm (including private firms and the CSO), and/ or working with a barrister. For the more able students, I would also recommend applying for judge’s associateships by sending in your resume, cover letter etc.”

And if putting the legal hat on seems too daunting a task at this stage of your degree, she adds that simply focussing on the foundational law subjects will help students later in their practice of law.

“I think it’s really good to focus on some of those basic law subjects that sometimes seem a bit boring when you are at law school.

I remember finding some of the first year subjects like contracts a bit dull, and perhaps didn’t concentrate on the subject matter as much I could have, but realised later on when I started work as a commercial lawyer that subjects such as contracts are actually really useful! I found I had to go back and teach myself the basics again in a few areas.”

From Armstrong’s insight into the CSO, it is clearly the “dark horse” firm for graduating

law students practising in far more areas of law than many would expect.

“The CSO consists of 11 practice groups each offering different types of legal work, for example, Administrative & Government, Commercial, Torts, Constitutional, Native Title, Criminal, Inquiries, to name a few. There are various roles in all these practice groups for law graduates.”

The fact remains, Lea Armstrong is the first Crown Solicitor of NSW that’s also a woman and much of the coverage of her appointment has focussed on this.

But if her career to date – working under the wing of Justice McHugh, practising government and commercial law for the past 23 years, 18 of which were at the CSO – and her vision for the CSO during her reign are anything to go by, it’s about time.

“Above all the most rewarding aspect would be the acknowledgement of my skills and ability as a lawyer which has enabled me to have such a diverse and interesting career and now culminating in my role as NSW Crown Solicitor.”

New Directions: The Australian Legal Profession and Social Changes

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The Modern Lawyer

Claudia Neal-Shaw delves into the recent trend which has seen new lawyers choosing to ditch the billables for social change.

“Law is a creatural society. Law is what gives our society shape, certainty and form”.1 There is no doubt that social change continues to battle against commercially driven goals of the legal industry. But what makes a modern lawyer and how do we define the law and the role it plays in our community?

Those studying and working within the law will often be asked ‘Why did you choose law?’ Whilst you quickly consult a few pre-prepared answers, amongst them, there is often a desire to help the greater community and provide segues to social change. This edition of The Full Bench offers a vehicle for discussion on where the legal industry has opportunities to prosper. It may be within pro-bono work on class action cases, reforming asylum seeker laws or at the epicenter in community legal centres.

The Australian and New Zealand Conference on Public and Private Lives held in Brisbane last December discussed the changing behaviour of top tier firms and their employees. Simon Rice suggested a typical week in a young graduate lawyer’s routine was ‘four days of mergers and acquisitions, and one day for social change.’2 This particular panel discussion between legal professionals and academics defined social change as ‘the use of one’s legal skills to effect systemic change’.3 Do many people study and then go on to practice law because they want to effect social change? Yes. Is this the reality? Sadly, no.4 - Sophie Walden, Clayton Utz

This piece explores the evolving nature of the legal industry and how our generation’s changing values inform those of a modern and socially responsible lawyer. Featuring in the article are two informed, practicing legal professionals sharing their opinions on social change: Terence Williams BA LLB (Witwatersrand) MICS (London) Director, Legal & Contracts for SAS Institute Australia Pty Ltd responsible for Australia and New Zealand since 2006. Admitted in New South Wales in 2000, and first admitted to practice in South Africa in 1991, with extensive private practice and in-house experience in litigation, commercial, maritime and IT fields.

Sophie Walden BA LLB (University of Sydney), second year lawyer at Clayton Utz Sydney.

Who’s accountable and who’s regulating?

Has it become essential for large commercial firms to contribute to the community through volunteer work? It can be difficult to distinguish which organisations are socially responsible and what mechanisms are being used to ensure this. A narrow measure is that the larger the firm and thus the larger resource pool should mandate who has greater social responsibility.

However, this can be seen as unequal with Williams suggesting that all legal practitioners should contribute in some way regardless of firm size: ‘Practitioners in small and large firms work hard enough to keep their practices viable… rather than specific corporate responsibility, the practice should be more closely monitored from an ethical and professional value perspective so that the practice of law in general is more “socially responsible”.5 Socially responsible practice is comprised of multiple factors. It stems from an individual’s own morals and ethics but must follow industry codes such as the Australian Solicitors Conduct Rules. The purpose of codes of conduct (regardless of industry) is to regulate and monitor the behaviour of its practitioners leading to a fair and prosperous industry. It is important to remember that volunteering and contributing to the community is a personal choice as Williams highlights: “Pro bono work is not some form of “credit” or “penance” that enables you to practise in a different way the rest of the time! The volunteer spirit is a great Australian contribution to society, and lawyers who volunteer for pro bono work enjoy personal satisfaction and reward as volunteers”.6 Integration within a legal setting University allows for law students to volunteer as part of social justice programs and many students actively contribute. This may create an expectation of firms to create similar opportunities for their employees and especially their new graduates. Walden proposes that all firms should have pro bono targets and organise initiatives where lawyers

are required to offer advice and guidance at community legal centres or similar projects. Clocking up a certain amount of hours per year in pro bono works allows for a rewarding experience essential for personal and professional development. Clayton Utz has one of the largest pro bono practices out of the top tier commercial law firms. Employees’ performance and salary review is dependent on meeting a minimum of 45 hours of pro bono work per year. Walden confesses ‘it is one of the few times in commercial law that you actually get to help people who really need it on a very personal level’.7 Some law firms can be purely financially guided leading to distrusting clients but also a detachment from socially active and responsible graduates. Horror stories in the media accuse some legal professionals of overcharging for poor work, no guarantees and extending billables to 24 + hours per day. Shining a poor light on an industry that offers essential specialist advice, many firms have responded proactively. Introducing fixed billing quotes as opposed to hefty hourly rates allows firms to forge trustworthy relationships with their clients. The client is ensured a job is well done without suffering ‘bill shock’ at the end of the matter. Some firms attach warranties and guarantees such as ‘no win and your money back’ to ensure their delivery of a quality service. Ethical practices and the importance of socially responsible lawyers must be the root of legal education transferrable to real life scenarios.

Educating law students about social change A student’s first years of law school focuses on implementing the foundations of the legal profession addressing ethical behaviour, law reform and legal analytical skills. Many of the essential communicational skills are developed allowing them to articulate complex legal concepts to those who require it. Walden agreed that students and legal professionals should be required to complete a quota of pro bono work to avoid working in a withdrawn commercial environment. Becoming a ‘well-rounded lawyer’8

is dependent upon one’s ability to expose themselves to situations where disadvantaged and vulnerable people seek those unique legal skills.

The concept of creating a minimum quota of particular pro bono work at set, lower fees was raised as a means to create fairness and equality amongst legal representation. Whilst there is a given right to legal representation for particular sectors, Williams emphasises that many on standard incomes do not satisfy the legal aid criteria, nor can they afford adequate representation.9 The funding needed to fuel such a project is vital to implementation however it highlights a systemic disadvantage for the ‘average person’. It is these intrinsic patterns being recognised and discussed within an educational setting that allows for young minds to approach legal problems differently.

Final thoughts and calls to action Our version of the modern lawyer may exhibit restlessness and a hunger to effect social change but is counteracted by traditional mechanisms of the legal industry. Some final thoughts from our interviewees encourage realism and personal fulfillment in practicing a profession you are passionate about.

Williams shares, ‘examine your heart and personal philosophy closely, because it is entirely possible to practise aligned with professional ethics and values in a fair and equitable way that is both commercially sensible and socially responsible.’10 Walden offers, ‘you need to balance your expectations with reality to avoid being disappointed and disillusioned in the legal profession.

Commercial law can be socially responsible but it is not the most satisfying vehicle if you want to 'change the world' and affect real social change.

You can do your small part, which is extremely rewarding, but that is the extent of it.’11 We wish to extend our thanks to the wonderful interviewees for taking the time to answer these (sometimes a little controversial) questions.

1 ABC Radio National, ‘Social Change Lawyering: What, Who and How’, Law and Society Association of Australia and New Zealand Conference, Public and/or Private Lives, 5th December 2014. 2 ABC Radio National, ‘Social Change Lawyering: What, Who and How’, Law and Society Association of Australia and New Zealand Conference, Public and/or Private Lives, 5th December 2014. 3 ABC Radio National, ‘Social Change Lawyering: What, Who and How’, Law and Society Association of Australia and New Zealand Conference, Public and/or Private Lives, 5th December 2014. 4 Interview with Sophie Walden, Clayton Utz Lawyer (online interview 28

July 2015) 5 Interview with Terrence Williams, SAS In House Legal (online interview, 28 July 2015) 6 Interview with Terrence Williams, SAS In House Legal (online interview, 28 July 2015) 7 Interview with Sophie Walden, Clayton Utz Lawyer (online interview 28 July 2015) 8 Interview with Sophie Walden, Clayton Utz Lawyer (online interview 28 July 2015) 9 Interview with Terrence Williams, SAS In House Legal (online interview, 28 July 2015) 10 Interview with Terrence Williams, SAS In House Legal (online interview, 28 July 2015) 11 Interview with Sophie Walden, Clayton Utz Lawyer (online interview 28 July 2015)

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New Directions: The Australian Legal Profession and Social Changes

New Directions: The Australian Legal Profession and Social Changes

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Retaining Gains has Never been so Hard Commercial law firms are competitive.

Just ask any law student. However, recent trends indicate that whilst big firms attract an abundance of graduates, they struggle to retain them for the long term.

Jason Corbett delves deep into the issue to provide answers below.

their contributions, and treat them as the individuals they are, provides the catalyst.7 Mark White, a senior lawyer who left CBP Lawyers to start his own firm, is particularly critical of culture: If there is this cultural misfit it causes practitioners to re-evaluate where they want to practice law and how they practice law.8

For junior lawyers, there is also a fundamental chasm between the expectation of what working in law is like, and what working in law is actually like.9 It is this chasm that must be overcome – the work culture must be equally as brilliant as the picture firms present to law students.

Whether this is possible for big law firms is another thing - on big law culture, James Ryan, formerly of Piper Alderman before starting Spiers Ryan, has frankly put that:

Firms have fantastic recruitment strategies that we are all familiar with – from the boisterous and frank presentations they do in our university lecture theatres to the very fancy and hospitable cocktail networking evenings they throw for our benefit. For many of us law students who would willingly bungie jump into the fires of Mount Doom for a clerkship (which still only may lead to further employment with the firm of our dreams), it Like many within our industry, I was particularly disengaged with would seem almost comical to believe that the same firms who become the way large law firms were operated – seemingly void of quality pinnacles of aspiration may in fact have a problem with retaining their management, commercial responsiveness and innovation.10 lawyers. But it’s a problem.

In recent years in particular, staff retention in law firms has become a So where does this leave firms in the future? priority. Many firms have appointed retention experts and implemented engagement policies in an effort to demonstrate their It is very possible that the Big Law model of commitment to retaining talent.2 Others have cut “I think that one of the primary managing firms will soon come to an end, they their billable hour targets or have moved entirely to causes of unhappiness and therefore are, after all, exceptionally rigid and consistently alternative billing methods to reduce stress.3 King & cited as the reason lawyers leave. The optimistic Wood Mallesons has even gone so far as implementing turnover is the disconnection will say that for all the retention strategies and a 100 per cent open-plan workplace in their new Perth between what a firm says about engagement policies currently being implemented, office (compared to their 60 per cent open-plan offices itself – in particular, what it says only time is needed before work cultures evolve for in Sydney) in an effort to retain talent,4 with firms like about how it treats its own employees the better. Wherever the future will take law firms, Gilbert + Tobin and Minter Ellison not far behind in – and reality.” – Michael Bradley, we can expect to see a tireless and holistic focus on following suit.5 workplace culture, owing to the fact that ultimately, All of this to retain their lawyers. But why are they Managing Partner of Marque it is the culture that lawyers pledge loyalty to.

Lawyers. 1 leaving, and where are they going?

Lawyers who leave firms tend to either join boutique practices or start their own. In some extreme cases, lawyers decide to leave the profession altogether. There is no one reason for why they do so, although it has a lot to do with the work culture of Big Law modelled firms. It is no secret the legal profession lacks flexibility, work/life balance, and adequate pay compensation for cripplingly long working hours.6 This, coupled with a culture that often times is slow to develop lawyers, recognise

1 Briana Everett, ‘Misguided Expectations’ (2012) Lawyers Weekly <http://www.lawyersweekly.com.au/features/10108-misguided-expectations>. 2 Ibid. 3 Misa Han, ‘Hourly Billing Causes Stress in Legal Firms’, Australian Financial Review (online), 2 July 2015 <http://www.afr.com/news/hourly-billing-causes-stress-in-legal-firms-20150629-gi0uuw>. 4 Mercedes Ruehl, ‘King & Wood Mallesons Takes a New Approach to Work Spaces’, Australian Financial Review (online), 18 February 2014 <http://www.afr.com/real-estate/king-wood-mallesons-takes-a-new-approach-to-work-spaces-20140217-ixro5>. 5 Ibid. 6 Everett, above n 1. 7 Justin Whealing, ‘Leaving Large Law’ (2014) Lawyers Weekly <http://www.lawyersweekly.com.au/opinion/15517-leaving-large-law>. 8 Ibid. 9 Everett, above n 1. 10 Whealing, above n 7.

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New Directions: The Australian Legal Profession and Social Changes

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A Mediated Concern?

Chris Nowland examines public confidence in the Australia Court system and evaluates whether the current court-officer mediation process poses a real risk to the integrity of the changing judicial system.

The performance of mediation by Australian court-officers is a hotly debated and controversial topic. As Sir Laurence Street, warns, ‘the role of the mediator is wholly inappropriate for a court officer…they place at risk public confidence in the integrity and impartiality of the judicial system.’1 Here, it will be argued that court-officer mediation poses little to no risk to judicial integrity, and even if it were created it is certainly not sufficient to justify a ‘whole’ opposition as Street contends.

First, I will outline what is meant by ‘courtofficer’ and ‘mediation.’ Next, it will be shown that two pillars of integrity, impartiality and transparency, are unaffected by court-officers conducting mediation. Finally, it will be made clear that the judicial role is changing to incorporate mediation. A trend favoured and embraced by the public.

The meaning of court officers ‘Court-officers’ refers to both registrars and judges. It could be argued that the distinction is largely immaterial. In a recent study on social attitudes towards the judiciary it was found that the vast majority of the public form their perspectives of the courts based on external sources and not from direct knowledge or experiences.2 It is therefore likely that the public would be unable to distinguish between registrars and judges - ‘the public sees a court as an integrated institution.’3 The role of the mediator Mediation is an inherently discretionary and flexible process that focuses on the personal interests, as opposed to rights, of parties in a dispute. No such universal mediation program or process exists in Australian jurisdictions.

This creates an analytical problem as the appropriateness of court-officers conducting mediation can largely depend on the role the mediator chooses to take. Yet this lack of

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consensus also means it is impossible to say court-officer mediation is ‘wholly’ inappropriate.

Where court-officer mediation is purely facilitative, as the bulk of opinion advocates, there will be little to no risk to integrity.

Judicial integrity and public confidence The legitimacy of public institutions in democratic states is dependent on the trust placed in them by the citizen body. This is particularly true for the judiciary where its de facto acceptance explains why the average citizen acts according to its authority. As French CJ made clear in Rafael Cezan v The Queen, ‘The courts…depend in a real sense upon public confidence in the judicial system to maintain their authority.’4 Yet perceptions of trust in isolation are insufficient when analysing the institutional integrity of the judiciary. The public’s views, while no doubt incredibly indicative, can be vague and inaccurate at the best of times. Trust must be annexed to the right institutional values, specifically judicial impartiality and transparency.

I Impartiality Impartiality is the highest judicial virtue, regarded as sacrosanct equally by the profession and the public. In a recent social survey, impartiality in judicial officers was held to be an essential or very important characteristic by 87% of the Australian public.5 While what the judge actually says or does is no doubt significant, the provision extends beyond actual bias towards whether his/her actions create a reasonable apprehension of bias. As Gaudron J illustrates, ‘for the maintenance of public confidence, courts must be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction.’6 Any risk that court-officer mediation may offend the rule against bias expresses itself both during and after the mediation.

New Directions: The Australian Legal Profession and Social Changes

II Transparency of justice It is indisputably accepted that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done.’7 To this end it is argued that judicial mediation is fundamentally at heads with the requirement of open and transparent justice. First, as shown in Scott v Scott, natural justice requires that the public should be able to see justice done in open court.8 There is fear that with the growth of ADR an unacceptable amount of proceedings will be conducted in secrecy. Second, given mediation is largely discretionary; there is potential that judges may act contrary to suggested guidelines by being too evaluative or determinative. The issue is in this situation the result would be completely unreviewable.

No reasons would be given and the mediator’s notes would likely be destroyed, as per other jurisdictions.

What these concerns fundamentally neglect however, is that the requirement of open justice does not apply to pre-hearing practices. Pretrial settlement conferences are frequently and routinely conducted in chambers where the public has no access. It is within this private setting that settlement is most likely to occur.

In fact, given the majority of settlement occurs without the involvement of the courts, at least court-officer mediation gives rise to a degree of judicial scrutiny. As such, it is hard to see how court-officers conducting mediation in a similar environment to normal pre-hearing procedures would negatively affect the publics perception of the integrity of the court.

In terms of the unreviewable nature of mediation, it is imperative to recognise that court-officer mediation in no way involves a decision. Where judges follow clear guidelines as to their facilitative nature this will not be an issue. The adoption of court-officer mediation should not be held hostage by the risk that one bad apple will spoil the bunch. The benefit of the doubt must rest with the judiciary to

conduct themselves in an appropriate fashion. Our system of justice depends on this.

It is next necessary to look at how the changing judicial role is providing fertile ground for the integration of court-officer mediation.

Mediation and the judicial role In a recent study on social attitudes towards the judiciary it was found that confidence in the system as a whole is low. The judiciary is perceived as ‘embedded in archaic traditions, resistant to change and disconnected from ordinary citizens and contemporary values.’9 Perhaps the incorporation of quasi-judicial functions into the judicial role is damaging to confidence in this system.

The shift towards judicial management in response to unacceptable delays and rising costs in civil litigation need be considered. Where judges traditionally did not have significant influence over how parties ran their case, they now take an ‘activist’ role in case management to ensure efficiency and affordability of justice. Litigation is conducted with reference to ‘just, quick and cheap’ objectives,10 and as such ‘judges are required to promote judicial settlement with the assistance of counsel.’11 Secondly, the increasing utilisation of private and court-annexed ADR services. This began in the 1980s with the establishment of community justice centres throughout Australia.12 Today, most state jurisdictions are empowered to order mandatory mediation and all Supreme Courts in Australia provide court-annexed mediation services.13 At the Commonwealth level, the Federal Court introduced a pilot ADR program into the NSW District Registry of the court in 1987.

This was expanded and solidified by legislative amendment14 and now 80 per cent of matters referred to mediation by the Federal Court are court-annexed and conducted by registrars.15 Parties are even required to take ‘genuine steps (including ADR) to resolve a dispute’16 prior to filing court proceedings, and many legislative schemes have been implemented necessitating parties undertake mediation as a precondition to court-action.17 This is clear evidence that the contemporary judicial role is an increasingly fluid concept that is evolving towards greater activism. In a recent

‘Declaration of Principles’, the Chief Justices of Australian and New Zealand superior courts held that ‘mediation is an integral part of the Courts adjudicative processes and the shadow of the court promotes resolution.’18 Furthermore recent civil procedure legislation has clearly outlined that court-officers have a duty to assist parties to resolve their disputes. They should not be restricted in the methods by which they achieve this aim, particularly where the public is asking for the inclusion of more facilitative options.

It would be hubris to claim that court-officer mediation does not place any risk on the ‘public confidence in the impartiality and integrity of the judiciary.’ Yet, the level of risk posed is insufficient to justify a ‘whole’ opposition. The judicial role is becoming more activist and the public demands greater access to facilitative justice. Where routine safeguards are incorporated mediation is fast becoming an integral part of courtannexed dispute resolution in Australia. As Lauer asserts, ‘it is the duty of the court to stop the fight before the fighters get seriously hurt.’19

It would be hubris to claim that court-officer mediation does not place any risk on the ‘public confidence in the impartiality and integrity of the judiciary.’ Yet, the level of risk posed is insufficient to justify a ‘whole’ opposition.

The judicial role is becoming more activist and the public demands greater access to facilitative justice.

1 Laurence Street, ‘Mediation and the Judicial Institution’ (1997) 71 The Australian Law Journal 794, 794. 2 Sharyn Roach and Kathy Mack, ‘The work of the Australian judiciary: Public and judicial attitudes’ (2010) 20 Journal of Judicial Administration 3, 3. 3 Street, above n 1, 796. 4 Rafael Cezan v The Queen (2008) 236 CLR 358, 308-81 [71]-[72]. 5 Kathy Mack and Sharyn Roach, ‘Performing Impartiality: Judicial Demeanor and Legitimacy’ (2010) 35(1) 137, 142. 6 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 361 [81]. 7 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259. 8 Scott v Scott [1913] AC 417. 9 Roach and Mack, above n 2, 5. 10 Civil Procedures Act 2005 (NSW) 56. 11 David Spencer, ‘Judicial mediators: Is the time right? - Part 1’ (2006) 17 Australian Dispute Resolution Journal 130, 133. 12 Community Justice Centres (Pilot Projects) Act 1980 (NSW). 13 Civil Procedures Act 2005 (NSW) s 26(1)-(2). 14 Federal Court of Australia Act 1976 (Cth) s 53A(1). 15 Jamie Wood, ‘Federal Court-annexed mediation seventeen years on’ (2004) 14 Journal of Judicial Administration 89, 97. 16 Civil Dispute Resolution Act 2011 (Cth) s 4(1)(d). 17 Retail Leases Act 1994 (NSW).;Personal Injury Proceedings Amendment Act 2002 (Qld). 18 Council of Chief Justices of Australia and New Zealand, ‘Position Paper and Declaration of Principle on Court-Annexed Mediation’ (1999). 19 Edgar Lauer, ‘Conciliation - A cure for the Law’s Delay’ (1928) 136 Annals 55.

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Administrative Justice in a Digital Era When studying, we often come across the issue of access to justice and its critical importance in the legal sphere.

In this day and age, the issue of administrative justice is evolving as a result of new technologies and advances in the digital era. Dominic Smith examines the impact changing technologies will have on the accessibility of justice.

1 Gavin Manes and Elizabeth Downing, ‘What Security Professionals need to know about Digital Evidence’ (2010) 19(3) Information Security Journal: A Global Perspective 124, 125.2 Australian Law Reform Commission, Classification - Content Regulation and Convergent Media, Report No 118 (2012). 3 Daniel Austin, Andrew Mowbray and Philip Chung, ‘Scalability of web resources for law: Austlii’s technical road map: past, present and future’ (2001) 2 UTS Law Review 178. 4 Interview with Professor Jill McKeough (Sydney, 30 July 2015).5John Fairbairn and Stuart Clark, ‘Intellectual Property Litigation in Australia’ (2008) 75(2) Defense Counsel Journal 142, 146. See also Judicial Commission of NSW, Discovery (27 May 2015) Civil Trials Bench Book, <http://www.judcom.nsw.gov.au/publications/benchbks/civil/discovery.html>.6 Manes, Above n 1 124.7 Sheryl Jackson, ‘New Challenges for Litigation in the Electronic Age’ (2007) 12(1) Deakin Law Review 81, 83. 8 Supreme Court of NSW, Practice Note No SC Gen 7 Supreme Court – Use of Technology, 15 August 2006, 127.9 Manes, Above

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New Directions: The Australian Legal Profession and Social Changes

The

primary aim of legal services in public and private law is to provide the community with efficient and equitable access to justice.

Although such areas of law are multifaceted and dynamic, both areas of law are influenced by trends in technology and changes in practice. With the growth of new technologies, the legal profession and government departments have been required to outsource information to digital information companies, to improve the accessibility and cost efficiency of data access and the process of discovery in litigation.1 Despite claims that the digitisation of legal information is beneficial to accessing justice, concerns remain regarding data privacy and copyright law. In conversation with Professor Jill McKeough, this article intends to examine the implications of e-discovery and government cloud on the provision of legal services in Australia.

The Impact of Technology on Legal Information and Services In December 2010, the Australian Law Reform Commission reported that there were ‘10.45 million active internet subscribers in Australia, of which…

2.3 million subscribers were business and government subscribers’.2 The convergence of media and communications has dramatically changed the way, in which industries operate and are regulated. Increasing demands for efficiency and cost effective services has forced the legal profession to reconsider how information is analysed and applied in litigation. Public access initiatives, such as AustLII, continue to facilitate community and professional access to relevant government and legal information.3 Whilst concerns remain as to the relevance of the legal profession in a digital era, lawyers continue to play a key role in interpreting evidence and relevant information to a specific case. Through the provision of legal education resources and data, the legal profession is able to access relevant legal information and consequently provide more efficient services to clients and the community.

The Process of Discovery and the Admissibility of Evidence The process of discovery is one of the main areas to be impacted by the use of data technology. In response to recent developments [in technology], firms are… digitizing all of the materials disclosed in litigation disputes.4 Discovery is a litigation procedure involving obtaining primarily documentary evidence from other parties involved in the dispute, in accordance with the Uniform Procedure Rules 2005 (NSW).5 With the growth of e-discovery technology, legal professionals have begun to outsource investigations to companies specialising in preserving and producing digital records of evidence.6 Furthermore courts and commission inquiries have encouraged the use of technology in pre-trial discovery and the documentation of evidence in large-scale civil actions.7 Consequently, laws, regulations and rules have been altered to incorporate the growing role of technology in litigation. In 2008, the Supreme Court of NSW released Practice Note No SC Gen 7 Supreme Court – Use of Technology,8 to outline the extent to which technology could be used in the courtroom and during the course of a litigation dispute.

In both international and national cases, the inclusion of e-discovery technology in litigation disputes has provided opportunities for litigants to bring actions against parties, who may have destroyed or withheld evidence. In the USA case Zubulake v Warburg,9 companies were held to have a duty to preserve information ‘that appears to likely to lead to the discovery of admissible evidence’.10 Furthermore US courts have developed laws to increase accountability of companies that are guilty of destroying evidence or failing to preserve information.11 In relation to the destruction of evidence in Australia, the Supreme Court of Victoria in McCabe v British American Tobacco Australia Services noted that the destruction of evidence was detrimental to a fair trial and prejudiced the plaintiff’s case.12 Although on appeal the decision in McCabe was overturned,13 later cases noted that actions could be initiated, if the opposing party was

aware ‘that it was a reasonable possibility that… the data may be required as evidence in those proceedings’.14 In response to this issue, Professor McKeough noted that e-discovery has successfully improved accessibility to relevant evidence for litigation and consequently has reduced the time required to discover admissible evidence.15 Legal Data on the Government Cloud Beyond the compelling cost economies that are expected to yield from the massive adoption of cloud services in the public sector, cloud technology is also a promising platform for open government, interagency cooperation and government innovation.16 Due to the increasing number of government information access applications, the public sector has begun to develop initiatives to provide information through cloud technology.17 By digitising state records, the Government intends to make public services more efficient and improve the transparency of political and legal processes.18 Although the digitisation of government information improves transparency, legal professionals will play a key role in interpreting the data to satisfy the legal interests of their clients.19 Through the publication of information, legal professionals will be able to access data, such as local council plans, interagency records.

Whilst the development of a government improves transparency, concerns remain about the confidentiality of private information, state sovereignty over restricted data and breaches to private intellectual property, such as architectural designs, planning records and company dealings.20 With the development of cloud technology for government information, copyright and intellectual property remains highly relevant. In the Australian Copyright Council’s submission on cloud technology, the Council expressed concerns about how the Government was going to regulate the integrity, accuracy and currency of material and how information could be assessed as pertaining ‘a public benefit’. Furthermore Government agencies would be restricted in providing information, excluded under copyright law and the Freedom of Information Act 1988 (Cth). Consequently, legal professionals would remain essential in providing legal services, regarding access to regulated or copyright material.

Future Directions in Access to Justice and the Legal Profession Despite increases in the outsourcing of legal data and information, the future of legal profession appears promising. Concerns that legal services will be outsourced to information companies and self-representation will increase appear unfounded, due to the complexity of litigation processes and legal principles. The development of cloud technology to digitise government archives and e-discovery rules has allowed legal professionals to reduce costs and time spent in acquiring admissible information and evidence. Although concerns remain about privacy and intellectual property, such issues can be addressed through data protection initiatives and adherence to the current legislative frameworks. Whilst the role of professionals is changing in acquiring evidence and information, the legal profession’s role in interpreting laws, regulations and policies is more important than ever.

n 1 127. 10 Ibid 128.11 Ibid 127.12 McCabe v British American Tobacco Australia Services (No 2) [2002] VSC 112.13 McCabe v British American Tobacco Australia Services [2003] VSCA 43.14 R v Selim [2007] NSWSC 362, [22].15 Interview with Professor Jill McKeough (Sydney, 30 July 2015).16 Kristina Irion, ‘Government Cloud Computing and National Data Sovereignty’ (2012) 4(3) Policy and Internet 40.17 Ibid.18 Ibid 41.19 Interview with Professor Jill McKeough (Sydney, 30 July 2015).20 Ibid.

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The Chinese Communist Party recently conducted unprecedented mass arrests of human rights lawyers, law firm staff and activists.

Ashleigh Barnes examines the impact of the increasing Asian influence on the Australian legal market, specifically in the context of the recent ChinaAustralia Free Trade Agreement.

What effect will this have on Australian firms, if any?

As a member of the global village, the Australian legal profession is now inevitably affected by the actions of government, regulators and clients, both nationally and abroad. In this context, lawyers must adapt and follow their clients into new markets. Asia is experiencing overwhelming economic growth and cannot be ignored by Australian lawyers.1

so, approval was required from the Shanghai Bureau of Justice.

Now, professional secondments and joint operations can occur beyond the SFTZ and are encouraged.4 In a tough job market, this will see more Australian lawyers taking job opportunities in China, be it secondments or permanent positions. There will also be increased outbound work from China.

To do so, would be to risk not being a part of what is shaping up to becoming the most dominant economic region in the world.

Indeed, China is Australia’s biggest trading partner. The most recent development in this space is the China-Australia Free Trade Agreement (‘ChAFTA’), signed on 17 June 2015, after 22 rounds of negotiation over the course of 10 years.2 The ChAFTA will now be tabled in parliament and is expected to come into force by the end of the year. Assuming everything goes according to plan, this article gives you a rundown of the basics – what direction will the ChAFTA lead our profession?

What is not included

Put simply, the ChAFTA provides more opportunity for trade and investment, relaxing regulatory burdens. The exact effect it will have on the Australian legal profession is determined by reference to both what is included and what has been omitted.

What is included •

• • •

Proposals by Chinese businesses that fall below the $1.078 billion threshold no longer require approval under Australia’s foreign investment rules; Tariffs on Australian beef, dairy, wine, fruit, pork, sheep meat, seafood and some grains are going to be phased out; Tariffs on coal, alumina and some base metals are going to be eliminated; and There is an express commitment to support the mobility of lawyers between the two countries found in chapter 8 (‘The Chapter 8 Agreement’)3

•

Rights of Australian lawyers working in China are not discussed.5 As it stands, foreign lawyers are prohibited from appearing in Chinese courts and from providing legal advice on Chinese laws and regulations.

Despite the commitment to the mobility of lawyers in the ChAFTA, the Australian legal fraternity awaits the liberalisation of China’s legal market. The Chapter 8 commitment remains a positive step and is an indication of China’s inclination to engage with a globalised world.

A cause for concern Nevertheless, lawyers should not rush to the region indiscriminately.

A recent crackdown on human rights lawyers means Australian commercial law firms operating in China have cause for concern.

The Chinese Communist Party recently conducted unprecedented mass arrests of human rights lawyers, law firm staff and activists.

Whilst the government campaign was not directed at the lawyers that engage in foreign-related commercial transactions, there is a general ‘chilling effect’. This is the case as the recent target of ‘human rights lawyers’ is an ill-defined group that is potentially quite large, including lawyers that defended migrants, labourers, religious practitioners and generally people who have a grievance against the government.6 The latter category could quite easily include foreign lawyers working on sensitive matters or disputes between businesses and state-owned enterprises.

It follows from this list that certain sectors are going to undergo a ‘boom’. M&A and property lawyers can expect increased inbound investment, whilst lawyers with clients in the agriculture and resources sector will also benefit. More broadly, the commitment to support the mobility of lawyers between the two countries goes beyond a single sector or industry, and will impact the profession as a whole. The status quo has only allowed joint Australian-Chinese legal operations in the Shanghai Free Trade Zone (‘SFTZ’). To do

1 Greg Bourne, ‘Australia is part of Asia – global law firms ignore both at their own peril’ Lawyers Weekly, 25 August 2015, <http://www.lawyersweekly.com.au/opinion/16235-australia-is-part-of-asia-global-law-firmsignore-both-at-their-peril>.2 Leanne Mezrani, ‘Australians ready to scale Chinese Walls’ Lawyers Weekly, 26 August 2015 <http://www.lawyersweekly.com.au/features/16858-australians-ready-to-scale-chinese-walls>.

3 Ibid. 4 Ibid. 5Ibid. 6 Felicity Nelson, ‘China mass arrests to have ‘chilling effect’ on Aus Firms’ Lawyers Weekly, 24 August 2015 <http://www.lawyersweekly.com.au/news/16893-china-mass-arrests-to-have-chillingeffect-on-aus-firms>.

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New Directions: The Australian Legal Profession and Social Changes

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In

2008, a study by the Brain and Mind Institute found that at least one third of the legal profession suffered from depression.1 This remained the figure in 2011, with 30% of students, barristers, and lawyers experienced a form of psychological distress (including stress, depression and anxiety).2 This rate is about double of the general community in Australia. There’s no doubt about it – there’s something about law when it comes to mental health.

When unpacking why there is such a prevalence of mental illness within the legal profession, experts point to the nature of legal work such as: • • • • •

Pressure from clients3 Competitive, isolating and hierarchal nature of firms4 ‘Professional pessimism’5 (lawyers having to ask “what can go wrong” at every stage of their work)6 The “dehumanised” nature of work due to commercialisation of the profession;7 and Long working hours.8

Aside from the nature of legal work, another contributing factor is that those drawn to professional services, like law, are often high performers and perfectionists and more prone to anxiety and depression.9 Importantly, many have noted that the problem starts in law school. The Brain and Mind institute found that 35% of law students report high or very high levels of distress, compared to 13% of the general university population.10

CAN’T WAIT TO CU!

Why Lawyers Keep Investigating work/ Entering Masterchef* life balance among legal practioners, Kate Sammut determines what this age-old conundrum really boils down to.

Sharon Cook, managing partner at Henry Davis York, believes this is in large part due to law schools being massively competitive environments, which ‘simply pits highly intelligent people against each other’.11 Preparing law students for life in the profession may be a key strategy in tackling the issue. This idea was raised by Katrina Johnson, director of legal affairs at eBay, stating ‘there is a real opportunity at the education stage to help set realistic expectations on what legal practice is really like’.12 Another way to better support lawyers is changing the nature of the workplace itself. In some ways this is already taking place; Resilience@law is a collaboration between The College of Law and the five major national law firms aimed at ‘raising awareness and understanding of the nature and impact of stress, depression and anxiety across the legal profession (from graduate lawyers through to partners)’.13 A participating firm, Herbert Smith Freehills, has created an intranet page, which gives staff access to information about how to detect and address mental illness.14 Even smaller firms are working to facilitate a more relaxed working environment. A good example of this is Wallmans Lawyers in South Australia, which has introduced a health and well-being program,15 where the firm is taking a proactive rather than reactive approach and asking staff the question ‘Are you alright?’ and regularly turning the boardroom into a space for yoga classes and encouraging staff to take time out of their demanding schedules by providing a “quiet room” and running team camps.16 Ultimately, both managing student expectations and changing the nature of the workplace is important for the mental health of legal professionals. And let’s be honest, improvement is seriously needed, what kind of society would we be if law students and practitioners would rather undergo the intense pressure of tackling a Heston Blumenthal dish on national television than face the stresses of The Law Life!? Madness. * In case you were wondering, lawyers/ law students in MasterChef really is a thing. Of seven seasons, 5.4% of contestants have been involved in the legal profession Now 5.4% may not sound like a lot, but that’s the second biggest group (students, not including law students, being the first with 9.2%). Of the seven seasons, only three have been lawyer-contestant free and in season two there was a whopping four contestants involved in the legal profession- that’s one sixth of the top 24!

Want the inside scoop on landing a role at Clayton Utz? Find it on Facebook! www.facebook.com/ClaytonUtzCareers

1 ‘The dissatisfaction epidemic: Why are lawyers unhappy?’, Lawyers Weekly (online), 26 May 2011, < http://www.lawyersweekly.com.au/features/8491-the-dissatisfaction-epidemic-why-are-lawyers-unhap> 2 ABC Radio National, ‘Lawyers and Depression’, The Law Rreport, 5 April 2011 (Kash Thompson) < http://www.abc.net.au/radionational/programs/lawreport/lawyers-and-depression/3008044#transcript> 3’The dissatisfaction epidemic: Why are lawyers unhappy?’, above n14ABC Radio National, above n 3, (Damien Carrick)5‘The dissatisfaction epidemic: Why are lawyers unhappy?’, above n16ABC Radio National, above n3, (Bruce Doyle)7 ‘The dissatisfaction epidemic: Why are lawyers unhappy?’, above n18ABC Radio National, above n3, (Kash Thompson)9 ‘The dissatisfaction epidemic: Why are lawyers unhappy?’, above n110 Ibid. 11 Ibid.

12 Ibid. 13 The College of Law, Resilience@law < https://www.collaw.edu.au/about-us/education-philosophy/resiliencelaw/> 14 ABC Radio National, above n 3, (Matthew Stutsel)15 Candice Marcus, ‘Lawyers’ alarming depression rates prompt efforts to boost mental health support’, ABC News (online), 21 November 2014 < http://www.abc.net.au/news/2014-11-21/lawyers-depression-rates-alarming/5903660> Ibid.

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New Directions: The Australian Legal Profession and Social Changes

31

Stop.

Hammer Time.

When you sit down and have a chat with your lawyer, you probably do so under the belief that your conversation is kept confidential. In most circumstances, you would be correct in your thinking. But does this age old principle of client legal privilege still have an important role to play in the contemporary legal profession?

Our very own editor BIANCA NEWTON and student KATE KEMP stepped up to the challenge to answer the controversial question: should the doctrine of attorneyclient privilege be abolished?

AFFIRMATIVE:

NEGATIVE:

The purpose of legal client privilege is to protect information between a client and their lawyer in order to allow for openness and candour.

This is deemed necessary for the attorney to fairly represent the client.

Essentially privilege is meant to ensure fair representation and assist with the process of securing justice. However, it is evident that in many cases privilege does not fulfil the aims it set out to achieve. Instead it results in the prevention of justice. It is for this reason that legal client privilege as it stands should be abolished.

Dr Sue Nichols argued that in order for privilege to be effective “it is important to ascertain whether there are worthwhile rationales behind each head of privilege such that each privilege can be defended against the valid competing claims of the proper administration of justice”. 1 The fundamental issue with privilege is that in many cases, particularly criminal and corporate cases, privilege has been exploited to protect the guilty and acquire a false judgement, thereby resulting in the prevention the proper administration of justice.

Logan v City of Chicago dealt with an innocent man being wrongly convicted of murder and imprisoned for 26 years as a result of legal client privilege. 2 Cases such as Logan illustrate the fallible nature of legal client privilege and illustrate the need for laws surrounding privilege to be re-assessed if not abolished on the grounds that it prevents the course of justice often in the most extreme way.

Following the Alton Logan Case the New York Bar Association considered the following amendments to client attorney privilege laws: This rule does not prohibit a lawyer from revealing or using confidential information, to the extent that the lawyer reasonably believes necessary, toprevent or rectify the conviction of another person for an offense that the lawyer reasonably believes the other person did not commit, where the client to whom the confidential information relates is deceased. 3 Such an amendment being made to the law would remove many of the moral and ethical concerns that arise from client attorney privilege and reduce the pressure on attorneys who are bound by law to uphold client privilege.

Administration is an inherent value of contemporary society so when justice is denied in the court system society finds it particularly repugnant.

It is clear the legal client privilege laws should be amended or abolished as they stand as such laws frequently undermine the ability of the courts to ensure the proper administration of justice.

Can you keep a secret? Because we sure need to (most of the time).

Putting aside important exceptions to the client privilege rule such as a lawyer’s obligation to disclose information that would prevent ‘imminent death or substantial bodily harm’,4 client legal privilege is a cornerstone of the Australian legal system. Over time, this privilege has accrued much criticism including the risk directed at public safety and ethical considerations targeting lawyers especially.

Justice Murphy said, ‘some kind of magic seems to prevent the law on aiding, abetting and counseling being applied to these professionals without whose assistance the crimes could hardly be carried out.5 This kind of comment can be linked to infamous cases such as the Lake Pleasant Bodies case involving a lawyer, Armani, unable to disclose information regarding the location of a body as a result of representing the guilty party.

As a result of cases like the above, both the public and some practitioners, have been led to believe, like Murphy, that client legal privilege has the potential to fail the justice system and expose the public to further risk.

I would disagree. The Lake Pleasant Bodies case was terrible but it is a reminder that while our justice system has flaws. The lawyer’s tool of client legal privilege does more to enhance this system than it does to inhibit it. It is a tool we still need in order to ensure the functioning of this system because without it, the exclusion of confidentiality between lawyer and client would deter people from confiding in their legal representation.

If applied to the above-mentioned case, this privilege was important in discovering the final location of the body and ensuring that the defendant was tried before the law in a just manner.

Feldman argued that the imposition of the legal professional privilege put Armani in a position where he could not ease the suffering of the victims’ families because he had to keep the information his client had confided in him confidential.6 However, it can be argued that this kind of war on the personal ethics must be put aside in order to ensure the functioning of proper process. Previous Federal Attorney-General Phillip Ruddock supported this by arguing that while lawyers must use these tools because ultimately it is ‘…the very essence of legal ethics to disregard the political incorrectness of the client’s case, on the basis that everybody is entitled to bona fide legal advice and representation’.7 Unless the legal profession can discover a solution to the dilemma faced by Armani and no doubt other lawyers, this tool is critical to the functioning of law as it forms and should continue to form the basis of the lawyer-client relationship.

1 Sue McNicol, ‘Implications of the Human Right Rationale for Legal Professional Privilege – The Demise of Implied Statutory Abrogation?’ in P Mirfield and R Smith, Essays for Colin Tapper (2003) 48, 1. 2 Logan v City of Chicago 891 F.Supp 2d ( ED, Ill, 2012). 3 Partrick Shilling, ‘Attorney Papers, History and Confidentiality: A Proposed Amendment to Model Rule 1.6’ (2001) 69:6, Fordham Law Review, 2741. 4 Australian Broadcasting System, Lawyer’s Debate Attorney-Client Privilege 7 August <http://abcnews.go.com/US/story?id=92697>. 5 Justice Lionel Murphy, ‘Address’ (Speech delivered at the First National Conference of Labor Lawyers, Adelaide, 29 June 1979) <http://www.justinian.com.au/archive/vintage-lionel-murphy.html>.r. 6 Robert Lane, ‘Introduction to Ethics’ (Speech delivered at the University of Western Georgia, Georgia, 18 August 2010) <http://www.westga.edu/~rlane/professional/lecture03_intro-to-legal2.html>. 7 Phillip Ruddock ‘A Return to Traditional Ethics - the Role of the Modern Lawyer’, Lawyers Weekly (online), 3 November 2006 <http://www.lawyersweekly.com.au/news/1338-a-return-to-traditional-ethics-the-role-of-the-mo>.

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10 Words or Less

Technology has had an enormous impact on Australia’s legal profession. It seems outrageous to think that it was only in the late 70s that computers were being rolled out. Mature lawyers will attest to the merit in having more time to reflect on a communication and consider a response. Now, in the era of email, people expect an immediate response and it is not always a change for the better.

A 2014 survey by the Australian Legal Practice Management Association (‘ALPMA’) has shown that emerging technology is responsible for positive and negative change at 73 per cent of firms, and that 97 per cent had made some kind of investment in technology. The Internet is putting firms under pressure to reduce costs and increase efficiency by offering a platform for competitors to use non-conventional law firm structures to deliver quality at a lower price.

According to the ALPMA, automating systems and moving previously manual tasks online is the key to delivering legal services at a lower cost. Technology makes it possible for firms to compete with people not only in their own town but also across the country and some of the providers that are crossing international borders.

Do you think today’s law students will inherit a better, more sophisticated and tech savvy workplace than our forbearers? Or will the erosion of traditional legal practice become a blight on the profession?

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New Directions: The Australian Legal Profession and Social Changes

‘Technology won’t be the demise of the legal profession’ – Imogen Bailey ‘Law firms see technology as a threat as well as a solution’ – Alexandra Donoghue ‘Technological changes need to be driven by firm leadership’ – Jake Bailey ‘Upgrading technology delivers cost benefits and is administratively easier’ – David Ma

‘Lamenting loss of tradition is counterproductive in a technologically driven workplace’ – Nicola Colagiuri ‘Technology makes lawyers lazy’ – Amy Watts ‘Lawyers shouldn’t fear technology, until technology becomes the lawyer’ – Chanelle Nader ‘No use fighting it’ – Adam Waverson

‘Technology is outpacing the law’ – Brian Do ‘Gen Y lawyers should show leadership in the workplace’ – Sarah Matherson ‘Fast. Efficient. Easy.

But not always reliable’ – Jackson Kang ‘It should enhance client contact, but not become the client contact’ – Stephanie Marr

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THE FULL BENCH 2015 Thank you to our contributors for Edition 3.

Thinking about writing for The Full Bench in 2015?

Keep an eye on our Facebook page or email the Publications Director, Nicola Colagiuri, at publications@utslss.com with your interest.