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In this issue we look at the complex problem of Indigenous imprisonment – and measures that could reverse the trends. We also look at new legislation to revoke citizenship of dual nationals considered to be engaged in terrorism activities and announce an MOU with India on legal practice.
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DECEMBER 2015
The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.
[email protected] www.lawcouncil.asn.au
JANUARY Doing Business Across Asia Date: 21-22 January 2016Host: Singapore Academy of LawLocation: Singapore W: www.legalconvergenceasia.com E: [email protected]
FEBRUARY Family Law IntensiveDate: 13 February 2016Host: LCA Family Law SectionLocation: SydneyE: [email protected]: www.familylawsection.org.au
Superannuation Lawyers’ ConferenceDate: 25-26 FebruaryHost: LCA Superannuation Committee Location: Melbourne E: [email protected] MARCH Immigration Law Conference(& Migration Law Committee AGM)Date: 4-5 March 2016Host: LCA Federal Litigation & Dispute Resolution SectionLocation: MelbourneE: [email protected] W: www.lawcouncil.asn.au
Mahla Pearlman OrationDate: 10 March 2016Host: LCA Legal Practice SectionLocation: SydneyE: [email protected]
Family Law IntensiveDate: 18-19 March 2016Host: LCA Family Law SectionLocation: PerthE: [email protected]: www.familylawsection.org.au
MAY Family Law IntensiveDate: 7 May 2016Host: LCA Family Law SectionLocation: MelbourneE: [email protected]: www.familylawsection.org.au
OCTOBER 17th National Family Law Conference Date: 18-21 October 2016Host: LCA Family Law Section Location: Melbourne W: www.familylawsection.org.au E: [email protected]
LIST YOUR NATIONAL EVENT HEREDo you have an event to add?
Contact the Editor: [email protected]
Law Council Review
• Issue 13 • Decem
ber 2015
SMARTER JU
STICE: SAFER COM
MU
NITIES
SMARTER JUSTICE: SAFER COMMUNITIES
COMING UP
CONTENTSNEWS 04
LEAD STORY 06 Smarter Justice: Safer Communities
FEATURE 12 When does a citizen become a non-citizen?
OPINION 14 How technology will transform the work of human experts
LEGAL PROFESSION 16 Commit to diversity and equality
Snapshot of legal profession
EDITORIAL ACKNOWLEDGEMENTS & CREDITS
Managing Editor: Anne WalkerEditorial Assistant: Krystal James Design: Felicia Gibson Design
Law Council ReviewISSN: 2206-0324Law Council of Australia 19 Torrens Street, Braddon, ACT, 2612 GPO Box 1989, Canberra, ACT, 2601 T: + 61 2 6246 3788 E: [email protected]
FOLLOW USwww.lawcouncil.asn.au
ISSUE 13DECEMBER 2015
COVERSmarter Justice: Safer Communities. See story page 6.
2 LAW COUNCIL REVIEW
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© The Law Council of Australia
No part of this publication may be reproduced without the specific written permission of the Law Council of Australia.
Opinions are not the official opinions of the Law Council of Australia unless expressly stated. The Law Council accepts no responsibility for the accuracy of any information contained in the Law Council Review and readers should rely upon their own enquiries in making decisions regarding their own interests.
06
CONTENTS LAW COUNCIL NEWS 18 New leadership elected
INTERNATIONAL 20 A new approach with India
Transnational practice at the Law Council
The South Pacific Lawyers’ Conference
EVENTS AND AWARDS 22 Tassie law students win mooting shield
President’s dinner
Access to Justice
Recognising new talent
Business and Human Rights
LAWASIA: cross border law and practice
COMING UP 28
DECEMBER 2015 3
In this final edition for 2015, we cover the alarming and still increasing rates of Indigenous imprisonment – and current efforts to reverse this trend. The Law Council of Australia considers this issue as one of the most pressing social and policy problems facing Australia and it has been a high priority for the outgoing President, Mr Duncan McConnel, during his term.
At the President’s Dinner in November, the Law Council acknowledged Mr McConnel’s contribution and welcomed President-elect Mr Stuart Clark AM. Read about our new leadership in this edition. We also take a look at the recent changes to the citizenship laws and the implications.
I hope you find relevant and interesting articles in this edition and I encourage you to share the Law Council Review with others who may not receive it.
As 2015 draws to a close, the directors and staff at the Law Council wish readers a happy and safe festive season.
Anne WalkerManaging EditorLaw Council Review
To give feedback or request copies:E: [email protected]: 02 6246 3788
A WORD FROM THE EDITOR12
14
23
24
4 LAW COUNCIL REVIEW
The Australian Citizenship Amendment (Allegiance to Australia) Bill passed the Senate in early December meaning that dual nationals will have their Australian citizenship revoked if they are deemed to be supportive of terrorism. The stated purpose of the Act is to deal with the threat caused by dual citizens who act in a manner contrary to their allegiance to Australia.
The Parliamentary Joint Committee on Intelligence and Security (Committee) recommended 27 changes – many of which were also reflected in the Law Council’s submission.
See analysis of this issue on page 12.
IN BRIEF
The historic shift to legal profession uniform law (LPUL) commenced in both New South Wales and Victoria on 1 July 2015, creating a common legal services market in the two states.
The LPUL governs matters such as practising certificate types and conditions, maintaining and auditing of trust accounts, continuing professional development requirements, complaints handling processes, billing arrangements, and professional discipline issues.
Introducing uniform law has been a goal of the Law Council of Australia for many years, and bringing the LPUL from concept to reality required the diligent efforts of government, regulators, and
representative bodies of the legal profession.
The Law Council is satisfied that the process has been appropriately led by the profession in setting its own standards.
The Law Council’s key objective from here will be ensuring legal practitioners from across the nation are well informed about the LPUL and what it means for them. Importantly, the new regulatory framework preserves the entitlements of practitioners from other states and territories to practise in New South Wales and Victoria.
The final LPUL Rules are available via the Law Council of Australia’s website along with a fact sheet designed for lawyers.
UNIFORM LAW IN ACTION
NEW CITIZENSHIP LAW
NEWS
The Australian Government recently introduced legislation to deliver efficiencies by merging corporate services functions of the Federal Court of Australia, Family Court of Australia and Federal Circuit Court of Australia. This is expected to save $9.4 million over six years to 2020–21, and $5.4 million annually after that.
The Attorney-General has committed to reinvesting the savings into the federal courts to support their core business of providing justice for Australian litigants.
The Federal Circuit Court, which handles the lion’s share of family court matters, is served by 65 judges. In October, the Attorney General announced the appointment of four Federal Circuit Court judges and is expected to announce a further two, bringing the court up to its full complement.
The Law Council has been in discussion with the Office of the Attorney-General and is pleased that a number of concerns of the legal profession have been addressed.
FEDERAL COURT REINVESTMENT
DECEMBER 2015 5
UN HUMAN RIGHTS COMMITTEE CONDEMNS AUSTRALIAAustralia’s human rights record performance was roundly criticised by the United Nations Human Rights Council during its review in Geneva during November.
Australia’s immigration policies, including the ongoing detention of children, were or particular concern. More than one hundred countries lined up to criticise Australia’s boat turnback and offshore processing policies.
Delegates also expressed concern about Australia’s treatment of its indigenous peoples and the high incarceration rates for young Aboriginal men.
The Human Rights Council is made up of 47 member states, which are elected directly and individually by secret ballot by the majority of the members of the General Assembly. The Council is responsible for the promotion and protection of all human rights around the globe. The Universal Periodic Rev (UPR) reviews the human rights records of all 192 United Nations Member States every four years.
FUNDING EXTENDED FOR CUSTODY NOTIFICATION SERVICE
The Law Council has welcomed the Senate’s decision to reject mandatory sentencing provisions for firearm offences.
Prior to the Senate vote, the Law Council had laid out its arguments against mandatory sentencing provisions before a Senate Committee into the Crimes Legislation Amendment (Powers, Offence and Other Measures) Bill 2015.
Law Council President Duncan McConnel told the committee that the hands of the judiciary should not be tied.
NO MANDATORY SENTENCING FOR FIREARM OFFENCES
He pointed out that mandatory sentencing did not eliminate the role of discretion, but rather placed it solely with law enforcement agencies and prosecutors, throwing out the balance of the overall system.
Mr McConnel argued that mandatory sentencing wrongly undermined the community’s confidence in the judiciary and the criminal justice system as a whole.
Research has demonstrated that while mandatory sentencing remains popular in principle, when members of the public are
fully informed about the particular circumstances of the case and the offender, 90 per cent view judges’ sentences as appropriate.
Mr McConnel also told the committee that mandatory sentencing typically increased the likelihood of recidivism, because prisoners are inappropriately placed in a learning environment for crime.
The Australian Government has committed funding to ensure the continuation of the Custody Notification Service (CNS), provided by the Aboriginal Legal Service (NSW/ACT), until 2019.
The CNS provides the mechanism for police to notify the ALS after the arrest of Aboriginal persons to ensure those people have access to legal assistance and advice and do not remain in custody longer than is necessary.
The CNS was established after the Royal Commission into Aboriginal Deaths in Custody in 1991. There have been no Aboriginal deaths in police custody while the service has been in operation.
The Law Council sees the continuation of this service as vital, given the ever-increasing numbers of Aboriginal people arrested in NSW and the ACT each year.
The Law Council is pleased that the Australian Government has moved beyond its dispute with the NSW Government over funding for the CNS.
It is important to provide certainty to Indigenous-led programs and encourage greater cooperation between the Commonwealth and states and territories, which would be assured by the adoption of a COAG ‘Closing the Gap’ justice target.
6 LAW COUNCIL REVIEW
LEAD STORY
SMARTER JUSTICE: SAFER COMMUNITIES
THE RATE OF INDIGENOUS IMPRISONMENT IS STILL INCREASING AT AN ALARMING RATE. TOP LEGAL MINDS, COMMUNITY LEADERS, AND EXPERTS GATHERED TO SHARE IDEAS AND PLAN WAYS TO REVERSE THE TREND.
DECEMBER 2015 7
T he Law Council considers Indigenous imprisonment to represent one of Australia’s most pressing national social
justice concerns. Although the crisis in Indigenous imprisonment is well known, the sheer numbers remain startling.
GRASPING THE NUMBERSAlthough just 2.5 per cent of the Australian population identify as Indigenous, Indigenous people make up 27 per cent of the prison population.
Indigenous youths comprise over 50 per cent of juveniles in detention and one in four deaths in custody is Indigenous.
Perhaps even more alarming is the trend. The raw numbers of Indigenous prisoners in Australia nearly doubled from 2004 to 2014, from 5048 to 9264. Since 2013, there has been a ten per cent surge in numbers.
Aboriginal and Torres Strait Islander women, meanwhile, are the fastest growing cohort of people who are both victimised and imprisoned for violent offences. Indigenous women make up around 2.2 per cent of the Australian female population, but around 34 per cent of women in prison. The imprisonment rate of Indigenous women has increased by 74 per cent since 2000.
Remarkably, these substantial increases in the rate of Indigenous imprisonment are occurring at a time when the overall crime rate is falling.
It is deeply troubling to consider that when the Royal Commission into Aboriginal Deaths in Custody shocked the nation in 1991, Indigenous peoples were being imprisoned at seven times the rate of the broader population. Today that rate is 14 times!
BROADER SOCIAL COMPLEXITYThe problems that are perpetuated by the catastrophic rate of incarceration are virtually limitless.
There are extreme socio-economic and human costs involved with imprisonment, which are known to compound disadvantage and associated propensity to commit crime.
And there is mounting evidence that deterrence theory is increasingly ineffective in achieving reductions in crime and improving community safety.
The Australian Medical Association has long been vocal about the devastating effects that imprisonment has on the lifelong health of Indigenous people who spend time in prison.
The AMA’s last Indigenous Health Report Card, released in November 2015, shows that overall, Aboriginal and Torres Strait Islander people continue to experience a life expectancy of around ten years less than non-Indigenous people.
The AMA report card recognises that shorter life expectancy and poorer overall health for Indigenous Australians is ‘most definitely’ linked to prison and incarceration.
The AMA argues that the high rates of imprisonment and the health gap cannot be neatly separated and that an integrated approach to both is required.
‘It’s possible to isolate particular health issues – notably mental health conditions, alcohol and other drug use, substance abuse disorders, and cognitive disabilities – as among the most significant drivers of the imprisonment of Aboriginal and Torres Strait Islander peoples,’ AMA President Professor Brian Owler noted in launching the report.
‘The high rates of imprisonment and resultant health problems among Aboriginal and Torres Strait Islander people should be a priority social justice and human rights issue – not just a health issue – in this country.’
THE MYTH OF DETERRENCEThe political and policy trend in Australia tends to frame the debate in terms of community safety and deterrence. This approach leads to regular changes to criminal laws, firmer sentencing, an increasing number of minor offences, and significantly enhanced law enforcement capability. Yet the evidence demonstrates that corrections policies that favour imprisonment have a disproportionate impact on the Indigenous population.
At the same time, there is scant evidence that such punitive measures are effective in reducing crime or keeping the community safe.
The highest proportion of people held in custody or corrections are those returning to prison. This fact alone demonstrates a clear disconnect between deterrence objectives and outcomes.
A reason for the ineffectiveness of measures to date to reduce the reoffending rate is the failure by governments to adequately resource programs that provide and promote alternatives to imprisonment. This is despite strong evidence in other national jurisdictions that adopting data-driven, alternative approaches can result in substantial reductions in both crime and imprisonment, with corresponding savings in corrections.
RISING TO THE CHALLENGEThe Law Council believes it is not a sufficient response by governments to highlight constitutional demarcation of legislative power between different levels of government as a reason to eschew a national approach, especially when national involvement features in the areas such as public health, education, housing, and the environment.
SMARTER JUSTICE: “THE EVIDENCE DEMONSTRATES THAT CORRECTIONS POLICIES THAT
FAVOUR IMPRISONMENT HAVE A DISPROPORTIONATE IMPACT ON THE
INDIGENOUS POPULATION.”
8 LAW COUNCIL REVIEW
There are some promising, worthy innovations to get behind.
Justice reinvestment trials, in which resources that would traditionally go toward incarceration are redeployed into alternative deterrence and preventative measures, have recently commenced in Bourke, NSW, with broad community support.
Trials are now also being proposed in South Australia and the Federal Labor Party has now committed to supporting an additional four justice reinvestment pilots, if elected.
‘Just Reinvest’ NSW and the ‘Sentenced to a Job’ program in the Northern Territory are compiling encouraging early results.
Meanwhile, Indigenous involvement in justice solutions – a relatively recent phenomenon – is also having positive impacts on community empowerment and a sense of ownership over justice solutions. A number of evaluations of the Koori Court, for example, have concluded that it reduces the perception of cultural alienation from sentencing and thereby increases its relevance and impact on offenders and victims.
The Koori Court model has also been expanded in Victoria, through the County Court and the Children’s Court, and has been more recently introduced in the Children’s Court of NSW.
The Nunga Courts in South Australia, Circle Sentencing in NSW and the ACT and Murri Court in Queensland present alternative models with local variations.
Sentencing Indigenous offenders in Indigenous Sentencing Courts, means notions of justice go beyond the need to simply punish and reform an offender’s behaviour.
Studies into the effectiveness of these courts on particular cohorts of offenders have found that for Indigenous offenders convicted of intimate partner violence, perceptions of justice were increased by the opportunity provided to be supported, understood and held accountable by respected members of their community for offences that caused offenders ‘shame’.
It has been found that a sentencing court can function as a culturally-hybrid domain, allowing for otherwise competing narratives and traditions to interrelate and work together in the pursuit of justice.
This structure allows a narrative to be provided of what justice within a sentencing framework (that sits within the existing legal structure and system that does not permit Indigenous sovereignty and self-determination) might look like for Indigenous Australians trying to maintain and restore agency and power.
Studies have also indicated that improving an offender’s experience of procedural justice created a greater sense of fairness and procedural legitimacy to the ultimate sentence.
GETTING TOP MINDS TOGETHEROn 26 November 2015, the Law Council gathered some of the top legal minds, community leaders, and experts in the field for the Indigenous Imprisonment Symposium at the Bangarra Dance Company studios, in Sydney.
Over the course of a scorching 38-degree day, panels of experts individually sifted through key aspects of the problem and potential solutions: examining the numbers; the drivers; short-term solutions; how to create buy-in; existing programs; and the prospect of constructive collaboration.
LEAD STORY
“… IMPROVING AN OFFENDER’S EXPERIENCE OF PROCEDURAL JUSTICE CREATED A GREATER SENSE OF FAIRNESS …”
CHANGE THE RECORD CAMPAIGNChange the Record is a campaign with two overarching goals:
• Close the gap in rates of imprisonment by 2040
• Cut the disproportionate rates of violence (to at least close the gap by 2040) with priority strategies for women and children.
‘To Change the Record, we need to work with Aboriginal and Torres Strait Islander communities to invest in holistic early intervention, prevention and diversion strategies. These are smarter, evidence-based and more cost-effective solutions that increase safety, address the root causes of violence against women and children, cut reoffending and imprisonment rates, and build stronger communities.’
Change the Record’s steering committee, made up of leading Aboriginal and Torres Strait Islander, human rights and community organisations, including the Law Council.
For more information: changetherecord.org.au
Change the Record Coalition
Changing the Record on the disproportionate imprisonment rates,
and rates of violence experienced by Aboriginal and Torres Strait Islander people.
BLUEPRINT FOR CHANGE
DECEMBER 2015 9
To define a justice target for a drop in youth custodial sentences of 50 per cent in five years:
• A one-off increase in funding of youth diversion/engagement programs to match urgent need;
• A commitment by government to fund the pursuit of these targets in five-year funding cycles;
• A review of Family and Community Services to reduce the number of children in care coming into the Juvenile Justice system and an increase in funding in the Northern Territory for FACS to meet demand on services;
• A ‘pride’ campaign directed at discouraging youth from delinquent behaviour;
• A ‘future’ campaign directed at showing Indigenous youth a pathway through self esteem, education and work.
To immediately look to implementing short-term measures aimed at stemming the destructive growth in Indigenous incarceration:
• Interpreters: Lack of interpreter resources can have a negative impact on Aboriginal people’s ability to fairly and efficiently negotiate the justice system. This issue can be addressed with better training to help police and court staff identify when an interpreter is needed, and more funding for interpreting services;
• Driving Offences: Traffic laws fashioned for the metropolitan area can operate unjustly in remote communities. Amendment to traffic laws or funding to assist Aboriginal people to obtain their licence may reduce incarcerations for driving without a licence;
• Fine default imprisonment: In 2013, 16 per cent of Aboriginal people taken to prison were there only for fine default; Consideration of more effective options for with this complex problem is required;
• Legal aid: The recent Productivity Commission report on Access to Justice Arrangements recommended the immediate injection of $200 million per year into legal aid. There is a direct connection between the provision of adequate legal assistance and the rate of over-incarceration of Aboriginal people;
• Mandatory sentencing: Mandatory sentencing laws almost certainly compound the problem of incarceration of Aboriginal people. Legislatures could remove existing mandatory minimum sentences and commit to not introducing new mandatory sentencing penalties.
CORE RESOLUTIONS OF SYMPOSIUM
10 LAW COUNCIL REVIEW
• Innovative justice practices: Employing innovative justice practices with ‘solution focused’ courts such as drug courts or Indigenous sentencing courts may better address the causes of, and offer more effective solutions to, offending behaviour.
• Re-entry programs: Providing re-entry programs to ensure that offenders successfully transition from in-custody to out-of-custody life can reduce recidivism, save money, and prevent crime. They can help redirect nonviolent offenders from a life of repeated crime and prison time to get their lives back on track.
A push to persuade COAG to place ‘reducing Indigenous imprisonment’ as a key item on its agenda:
• Reducing rates and length of imprisonment in real terms by 50 per cent within five years; implementing trials aimed at reducing imprisonment by effective diversionary programs within 12 months with a commitment to fund program for five-year terms; and a national review of programs within three years.
The convening of a taskforce to to identify a national data set for collection by all state and territory governments by 30 April 2016:
• The lack of reliable and coherent national data on the issue was identified as a key barrier to improvement. The Law Council will seek funding for a study and aim to address this issue urgently.
LEAD STORY
Law Council of Australia President Duncan McConnel, who chaired the symposium, noted that while there was clearly no silver bullet, the suite of measures identified, if introduced, would likely have a pronounced and relatively swift effect on the rates of Indigenous imprisonment.
‘Politicians could introduce all these measures, while simultaneously being assured this is not about going ‘soft on crime,’’ Mr McConnel stated.
‘It would be about creating effective responses to crime that keep the community safer and save the economy money. And it would be about fighting the national shame that is our Indigenous incarceration crisis,’ he concluded.
“THE SUITE OF MEASURES IDENTIFIED, IF INTRODUCED, WOULD LIKELY HAVE A PRONOUNCED AND RELATIVELY SWIFT EFFECT ON THE RATES OF INDIGENOUS IMPRISONMENT.”
DECEMBER 2015 11
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RRR Law is the first step towards an exciting legal career in rural, regional and remote (RRR) Australia. www.rrrlaw.com.au can link you to job opportunities and has everything practitioners need to know about legal careers in RRR Australia.
If you are looking for a career change or want to kick-start your career in a challenging, rewarding and supportive environment, then visit www.rrrlaw.com.au today.
Looking for a new legal career?
Advertising a legal job?
Is your practice looking to fill job opportunities in rural, regional or remote (RRR) Australia?
At www.rrrlaw.com.au we can help your practice connect with job seekers.
Simply register your details at www.rrrlaw.com.au/jobs to begin uploading your job opportunities.
The service is 100% free and is quick and easy to use.
www.rrrlaw.com.au
Are you looking for a career in rural, regional or remote (RRR) Australia?
RRR Law is the first step towards an exciting legal career in rural, regional and remote (RRR) Australia. www.rrrlaw.com.au can link you to job opportunities and has everything practitioners need to know about legal careers in RRR Australia.
If you are looking for a career change or want to kick-start your career in a challenging, rewarding and supportive environment, then visit www.rrrlaw.com.au today.
Looking for a new legal career?
Advertising a legal job?
Is your practice looking to fill job opportunities in rural, regional or remote (RRR) Australia?
At www.rrrlaw.com.au we can help your practice connect with job seekers.
Simply register your details at www.rrrlaw.com.au/jobs to begin uploading your job opportunities.
The service is 100% free and is quick and easy to use.
RRR Law is an initiative of the Law Council of Australia, funded by the Australian Government as part of a broader project on recruitment and retention of lawyers in RRR areas undertaken by the National Association of Community Legal Centres Inc.
www.rrrlaw.com.au
12 LAW COUNCIL REVIEW
FEATURE
WHEN DOES A CITIZEN BECOME A
NON-CITIZEN?UNDER NEW LEGISLATION, THE AUSTRALIAN GOVERNMENT CAN STRIP DUAL NATIONALS OF AUSTRALIAN CITIZENSHIP IF THEY ARE DEEMED TO HAVE ENGAGED IN TERRORISM – BUT THIS LEGISLATION FAILS THE RULE OF LAW TEST
T he Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) has been the subject of much debate
since its introduction into the Australian Parliament in June. The controversial Allegiance Act was passed by the Australian Parliament on 3 December 2015.
The Act will see dual nationals automatically renounce their Australian citizenship if they engage in terrorist acts; the training, recruiting or financing of terrorism; or engage in foreign incursions inside or outside Australia.
A new s 35 of the Citizenship Act will see Australian citizenship automatically cease if a
person fights for, or serves, a declared terrorist organisation overseas. The new s 35A would allow the Minister for Immigration and Border Protection to revoke citizenship where a person is considered guilty of offences including treason, espionage, terrorism and foreign incursions.In announcing the legislation, then-Prime Minister the Hon Tony Abbott said its purpose was to ‘stop terrorists from being loose on our streets.’
Concerns about the legislation were publicly raised by various parties, including by the Law Council, regarding the consistency of the proposed legislation with the presumption of
DECEMBER 2015 13
innocence, the right to a fair trial, and the rule of law.
Subsequently, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) was commissioned to commence inquiry hearings and to produce an advisory report on the Bill.
On 4 August 2015, the President of the Law Council appeared before the parliamentary inquiry.
The Law Council recommended the legislation be amended to better align with fundamental legal principles. The Law Council raised concerns in five key areas:
• The basis for and the scope of the Commonwealth’s power to enact the proposed citizenship legislation appears uncertain;
• The grounds of loss of citizenship capture conduct that may be unrelated to a lack of allegiance to Australia, or it may be minor conduct;
• The procedures for losing citizenship and subsequent administrative action do not provide sufficient safeguards to accord with the rule of law, the presumption of innocence, the right to a fair trial and the right of appeal;
• It does not provide adequate protections for children or to prevent indefinite detention and effective statelessness;
• The partial retrospectivity of the Bill is of concern.
The final PJCIS report was released 4 September 2015, making 27 recommendations, including that the Bill be passed following consideration of the recommendations in its report.
Many of the suggested amendments in the PJCIS report reflected the Law Council’s recommendations, including;
• limiting the operation of conduct-based cessation under s 33AA to individuals who have engaged in relevant conduct offshore or engaged in relevant conduct onshore and left Australia before being brought to trial in respect of that conduct;
• clarifying the intended fault elements that are to apply;
• amending the legislation to explicitly refer to the criteria that the Minister for Immigration must be satisfied of before declaring a terrorist organisation;
• excluding the provision of independent humanitarian assistance, and acts done unintentionally or under duress;
• removing property offences from s 35A;
• excluding offences that carry a term of imprisonment of less than 10 years from s 35A;
• permitting rules of natural justice to apply to some of the Minister’s decisions;
• requiring an ASIO security assessment before the Minister can take prescribed administrative action;
• the Minister must attempt to provide notice of loss of citizenship or revocation, reasons for the loss and an explanation of the person’s review rights;
• clarifying that if the Minister exempts a person from the operation of the legislation, the person is never taken to have lost their citizenship;
• limiting the application so that the main elements of the laws should not apply to children under 14 years of age, and a child would not be stripped of their citizenship as a result of a parent’s conduct.
The Government subsequently moved amendments consistent with these recommendations prior to the passage of the legislation.
Despite this, concern remains about the automatic loss of citizenship process, retrospective elements of the legislation, and the possibility for indefinite detention and effective statelessness of people.
“CONCERN REMAINS ABOUT THE AUTOMATIC LOSS OF CITIZENSHIP PROCESS, RETROSPECTIVE ELEMENTS OF THE LEGISLATION, AND THE POSSIBILITY FOR INDEFINITE DETENTION AND EFFECTIVE STATELESSNESS OF PEOPLE.”
14 LAW COUNCIL REVIEW
INCREASINGLY CAPABLE MACHINES WILL TRANSFORM THE WORK OF THE LEGAL PROFESSION WITHIN THE NEXT 20 YEARS, ACCORDING TO PROFESSOR RICHARD SUSSKIND OBE FRSE.
Speaking via video-link at a World Masters Special Event in Sydney on 23 November 2015, Professor Susskind predicted that
increasingly, legal services will be available online. This will improve access to justice and the lives of many, provided expertise is shared and maintained in a collaborative spirit.
He said that improving access to justice and the question, ‘How should society produce and distribute practical expertise?’ motivated the writing of the book; The Future of the Professions.
He warned that society faces significant and imminent moral questions about whether it will permit systems and machines to be tightly controlled by information providers, with professional services continuing to be unaffordable for many, or whether we will transform our internet-based society to make services more widely accessible at low cost.
HOW TECHNOLOGY WILL transform THE WORK OF HUMAN EXPERTS
OPINION
DECEMBER 2015 15
In his view, the professions are on the brink of a radical transformation, with much professional knowledge able to be made readily accessible and understandable online.
Professor Susskind summarised alternative models for the production and distribution of expertise as: the traditional, networked experts, para-professional, knowledge engineering, communities of experience, embedded knowledge and machine-generated.
Two dominant trends in the division of labour in the professions include a greater use of non-expert people, and a reallocation of services away from the professions to machines.
Professor Susskind identified four main developments in information technology (IT) over the last 50 years: an exponential growth in IT, increasingly capable machines, increasingly pervasive devices and increasingly connected humans.
He said that by 2020 there may be 40 to 50 billion devices connected to the Internet, and that by 2050 ‘the average laptop will have more processing power than all of humanity combined’. This means that in future many more people should be able to access practical expertise online.
‘Already more people are signing up for Harvard University’s on-line courses than have completed university since their establishment’, he said.
‘New jobs will be created by new technologies, but over time they will also be replaced by machines, and the need for lawyers will decline’, he said.
Already intelligent search systems can outperform junior lawyers in predicting litigation outcomes from patent disputes using the Lex Machina service, to machines predicting the outcome of US Supreme Court matters.
While machines assist with completing routine tasks efficiently, they are less capable in terms of judgment, empathy, intuition and creativity. But affective technology is improving, with a growing use of robots and humanoids and improved cognitive capacities.
New jobs will include moderators of online knowledge, legal risk managers, and new system providers.
Continuing the themes explored in his earlier book, Tomorrow’s Lawyers, Professor Susskind noted that the legal world will change in coming years more than it has over the last two centuries.
In Australia and England already lawyers have lost their monopoly over legal work. More paraprofessionals are being employed and new fields of specialisation are emerging. Banks have entered the legal services market, as have new providers like legal process outsourcers, Integreon and Novus Law, and legal publishers such as Thomson Reuters. Intermediaries like tax advisers are also being replaced by online tax preparation software.
Alternative business structures are emerging, like Axiom and other firms which offer legal services at lower fixed fees, and employ freelance lawyers on contract at lower cost. Flexible self-employment appeals to those seeking more autonomy and work-life balance, and who are willing to trade off permanent employment and a steady income.
Professor Susskind predicts that time-based billing will be replaced by fixed-fee services, and the traditional pyramidic structure of profitability will be replaced by a greater use of para-professionals and technology-based services.
Legal tasks are being disaggregated, and offshoring and outsourcing routine and repetitive legal tasks is becoming increasingly common, as is the use of on-line legal collaboration tools amongst firms.
Online communities of law firms and clients are also emerging, with problem-solving experiences being shared and the use of online dispute resolution services growing.
Online reputation systems have rated lawyers for more than a decade.
The Susskinds conducted 100 interviews with members of the legal and IT professions to inform the book. Professor Susskind’s son, Daniel Susskind, a Lecturer in Economics at Oxford University, was the other co-author.
The Australian-based and owned IT firm Vintek, sponsored the event. Copies of the book can be purchased from the Law Council. Contact Hanna Jaireth: [email protected]
* The views expressed in opion pieces are not necessarily those of the Law Council.
“PROFESSIONS ARE ON THE BRINK OF A RADICAL TRANSFORMATION, WITH MUCH PROFESSIONAL KNOWLEDGE ABLE TO BE MADE READILY ACCESSIBLE AND UNDERSTANDABLE ONLINE.”
PROFESSOR RICHARD SUSSKIND OBE FRSE
COMMIT TO DIVERSITY AND EQUALITY Express your commitment to diverse and inclusive legal workplaces by signing up to the Diversity and Equality Charter.
The Law Council invites legal practitioners, law societies, bar associations, law firms, chambers and other entities associated with the legal profession to sign up.
The charter promotes the respect and inclusion of all legal professionals, regardless of sex, sexuality, disability, age, race, ethnicity, religion and culture.
It was unanimously adopted by leaders in the legal profession at the Law Council’s National Attrition and Re-engagement Study Workshop earlier this year.
By signing up, you will be entitled to use the diversity logo to publicly demonstrate your commitment to its principles and to a strong and respected legal profession.
This can be done online or by contacting the Law Council.
THE DIVERSITY AND EQUALITY CHARTERThe Australian legal profession is committed to promoting diversity, equality, respect and inclusion consistent with the principles of justice, integrity, equity and the pursuit of excellence upon which the profession is founded.
We recognise that diversity benefits the legal profession and the community as a whole. Accordingly, the Australian legal profession and its members:
• treat all people with respect and dignity regardless of sex, sexuality, disability, age, race, ethnicity, religion, culture or other arbitrary feature
• create and foster equality through a supportive and understanding environment for all individuals to realise their maximum potential regardless of difference
• promote and support a strong and fair legal profession comprising, accommodating, encouraging and respecting a diverse range of individuals and views.
STUDY PROVIDES INSIGHTS TO THE LEGAL PROFESSION IN SOUTH AUSTRALIA
A recent report from the Law Society of South Australia (LSSA) throws light onto the professional lives and choices of legal practitioners in that state. The findings may have relevance to the legal profession more broadly.
The LSSA conducted a survey of 343 practitioners across South Australia and the results are published in their report; The Practising Certificate Survey 2014-15.
The report gives a detailed picture of income levels, areas of practice, pro-bono work, working hours, gender, age and experience with some interesting results.
The study revealed that 47 per cent of respondents performed pro-bono work in the past year, and of those, 65 per cent of respondents did more than 20 hours of pro-bono work in the past year, with 6 per cent providing more than 300 hours of voluntary work.
The study also indicated an income gap between female and male respondents. On average, males earned about $20,000 more than female practitioners with the same level of experience. Level of experience was defined as ‘years since admission’.
While it does not tell the whole story, the significant pay gap between men and women would be partly attributable to the fact that considerably more females work part-time. In fact, 41 per cent of female respondents worked part-time, compared to just 13 per cent of males.
The average income for all respondents was $106,985. The average income for respondents who work full time is $121,427 and $77,222 for part-time workers.
The report also breaks down average income by hours worked and area of practice.
The study revealed that men far outweigh women in senior roles, but it appears a gradual shift to more equal representation is likely, with more females in the younger ranks likely to progress to more senior roles.
Among the respondents, half of the equity partners have had more than 30 years’ experience in the law, and more than three quarters of equity partners have had at least 16 years’ experience. Of all the Legal Practitioner Directors, 63 per cent had more than 30 years’ experience. Broken down further, 29 per cent of male respondents had more than 30 years’ experience compared to just 6 per cent of women.
The next age category down however tells a different story – 22 per cent of female respondents who had 16-30 years of experience were female, compared with 19 per cent of male respondents.
About 8 per cent of respondents reported having a long-term illness or disability. This proportion is consistent with disability in Australia’s workforce overall. Of those in the legal profession vascular disease, anxiety or depression are common conditions.
Interestingly, females are more likely to work in immigration or environment law, whereas men are more likely to work in business and finance areas.
The report is publicly available on the LSSA website.
SNAPSHOT OF LEGAL PROFESSION
16 LAW COUNCIL REVIEW
LEGAL PROFESSION
“THE STUDY REVEALED THAT MEN FAR OUTWEIGH WOMEN IN SENIOR ROLES, BUT IT APPEARS A GRADUAL SHIFT TO MORE EQUAL REPRESENTATION IS LIKELY”
DECEMBER 2015 17
Bangladesh
Kiribati
Myanmar
Vietnam
Nauru
Papua New Guinea
Solomon IslandsCook Islands
Vanuatu Fiji
Niue
Samoa
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18 LAW COUNCIL REVIEW
LAW COUNCIL NEWS
F ollowing the Law Council’s AGM in November, the following directors were elected to the Executive to commence
2016.
PRESIDENT, STUART CLARK AM, Solicitor, New South WalesStuart Clark is a partner in Clayton Utz and based in its Sydney office. His practice focuses on class actions, investigations and inquires acting for clients in Australia, the US and Europe. He has been a director of the Law Council of Australia since 2011.
Mr Clark is a graduate of Macquarie University and practised at the New South Wales Bar prior to joining Clayton Utz. He has served in a range of leadership roles, including Chief Operating Officer and Managing Partner International of Clayton Utz, as a Director of the NSW Legal Aid Commission, Chair of the Large Law Firm Group (now known as Law Firms Australia) and Chair of the Australian Legal Sector Alliance Ltd.
Mr Clark has a strong academic interest in the law, publishing and speaking in Australia and overseas on class actions and complex litigation. He is an Adjunct Professor at Macquarie Law School and a Fellow of both the Australian Institute of Company Directors and the Australian Academy of Law.
Mr Clark was made a Member of the Order of Australia in 2015 for significant service to the law and the NSW Rural Fire Service and is still a member of the NSW Rural Fire Service after 42 years.
He is married to Narelle and has two sons, one a solicitor and the other a law student. He runs (slowly) in a desperate attempt to stay fit, and has a love of early European and Byzantine history
PRESIDENT-ELECT, FIONA MCLEOD SC, Barrister, VictoriaFiona McLeod SC practises at the Victorian Bar, appearing in trials and appeals in public law, human rights, commercial, constitutional and common law matters. She has practised at the Victorian Bar since 1991 and was appointed Senior Counsel in 2003.
Ms McLeod is currently the President of the Australian Bar Association and was the Chair of the Victorian Bar in 2013. She has been a Director of the Law Council since 2010 and was elected to the Executive in November 2012. She was the Chair of the Law Council Equalising Opportunities before the Law Committee, the Human Rights Committee, the Corporate Governance Committee, the Finance and Risk Committee and the Recruitment and Retention of Lawyers Working Group. She has previously been a President of Australian Women Lawyers.
Ms McLeod holds a number of appointments including as Chair of the Appeals Committee of the College of Surgeons and is a member of the advisory committees of the University of Melbourne and Sir Zelman Cowen Centre, Victoria University. She is a council member of the Commonwealth Lawyers Association and a fellow of the Australian Academy of Law and International Academy of Trial Lawyers.
Ms McLeod has been recognised with numerous awards for excellence and leadership, for her work in supporting diversity and equality and her work in pro bono and human rights matters including human trafficking.
Ms McLeod was inducted onto the Victorian Honour Roll for Women in 2014 and is a recipient of a prestigious inaugural Commonwealth Government Anti-Slavery Australia Freedom Award.
She likes to swim, dive and walk in wild places, especially with husband Livio and their two daughters, Lilly and Emily.
TREASURER, MORRY BAILES, Solicitor, South AustraliaMorry Bailes was the President of the Law Society of South Australia and Law Council of Australia Director in 2014 when he was elected onto the Law Council Executive in November the same year.
Mr Bailes graduated with a Bachelor of Laws from the University of Adelaide and began working at Tindall Gask Bentley in 1987 during his final year of studies. He has been Managing Partner at the firm for 14 years, overseeing its significant expansion into Western Australia and the Northern Territory.
Mr Bailes’ firm is the largest family law and plaintiff practice in South Australia, also practising in the areas of succession, workplace and criminal law. His clients include the Police Association of South Australia, the Western Australian Police Union, the Northern Territory Police Association as well
NEW LEADERSHIP ELECTEDINTRODUCING THE LAW COUNCIL’S NEW EXECUTIVE FOR 2016
DECEMBER 2015 19
as the Correctional Officers’ Legal Fund, the South Australian State School Leaders Association, Nunkuwarrin Yunti, the Aboriginal Sobriety Group and the CFS Volunteers Association.
Mr Bailes is a member of the Australian Institute of Company Directors and was the 2013 recipient of the Brian Withers award for services to the legal profession in South Australia.
He is married to Melanie and his spare time is spent attempting to catch up to his young sons Hugo and Charlie, reading whenever possible and writing whenever necessary, including publishing a regular column about law and law-related issues in South Australia.
MEMBER, ARTHUR MOSES SC, Barrister, New South WalesArthur Moses SC has been practising at the NSW Bar for more than 20 years and, in 2008, was appointed Senior Counsel in the State of NSW. He is currently the Senior Vice-President of the NSW Bar Association and has been a director of the Law Council since July 2014. He practises in a wide range of areas including administrative law, coronial inquests, corruption inquiries, work health and safety prosecutions, employment and industrial law, discrimination, restraints of trade, commercial and equity cases.
Mr Moses regularly appears before the Full Bench of the Industrial Relations Commission of NSW, Full Bench of the Fair Work Commission, Full Court of the Federal Court, the NSW Court of Appeal, Supreme Court of
NSW as well as appellate Courts in other States. He is a Squadron Leader in the Royal Australian Air Force Specialist Reserve.
MEMBER, KONRAD DE KERLOY, Solicitor, Western AustraliaKonrad de Kerloy was the President of the Law Society of Western Australia and a director of the Law Council of Australia in 2014. He is a senior disputes partner of Herbert Smith Freehills. He specialises in commercial litigation and corporate insolvency. His practice ranges from banking and contractual disputes, and contentious and non-contentious insolvency, to corporate restructuring, professional negligence, and reviews and disputes involving government departments and agencies. During a law career spanning three decades, Mr de Kerloy has worked on assignments in Chile, France, Germany, Indonesia, the United Kingdom and the United States, and has published numerous articles in legal journals.
MEMBER, MICHAEL FITZGERALD, Solicitor, QueenslandMichael was admitted in 1981 and is president of the Queensland Law Society (QLS). He has been a member of Council since 2010 and was deputy president in 2014. Michael is the Society’s nominee director to the Law Council of Australia. He is a member of the QLS Council Executive, Audit and Investment Committee and Committee of Management. Michael is also a consultant for Ashurst (formerly Blake Dawson) having been with the firm since 1982. His area of expertise is banking and finance law, advising banks, listed companies and statutory corporations. He is a member of the Law Council of Australia’s Financial Services Committee and the Banking and Financial Services Law Association.
Michael is a graduate of the Australian Institute of Company Directors. He holds membership of a number of community organisations including Rotary Club of Kenmore Inc (Past President 2005–06), Coeliac Queensland (currently Vice President having served for four years as President until September 2015) and Our Lady of the Rosary Parish Kenmore (member parish finance council).
THE LAW COUNCIL’S ANNUAL REPORT FOR 2014–15 WAS APPROVED AT THE AGM AND IS AVAILABLE ONLINE
NEW LEADERSHIP ELECTED
Available online (under media tab) at www.lawcouncil.asn.au
20 LAW COUNCIL REVIEW
On 26 September 2015, Law Council President Duncan McConnel met with the Chairman of the Bar Council of India
(BCI) in Goa, India to sign an MOU between the Law Council and the BCI on ‘Strengthening Legal Exchange, Transnational Legal Practice and Friendly Cooperation’.
This MOU signals a major shift in the BCI’s attitude towards foreign lawyers, with the peak body now in favour of the entry of foreign lawyers into the Indian legal services market. The MOU includes an agreement by the BCI to frame regulations to permit the practice of foreign law in India by Australian lawyers.
This is the first commitment of this kind made by the BCI and it has changed the landscape of Australia’s free trade agreement negotiations with India on legal services market access.
The MOU was agreed following positive roundtable discussions in Canberra on the two-way professional mobility of lawyers, facilitated by the new Transnational Practice Division of the Law Council with the BCI and from the Australian Attorney-General’s Department and the Department of Foreign Affairs and Trade. Leading up to the discussions the Law Council arranged, the Chairman of the BCI, Mr Manan Kumar Mishra, and his delegation with the Minister for Trade,
the Hon Andrew Robb MP and the Attorney-General, Senator the Hon George Brandis QC.
An important element of the MOU is the BCI’s acceptance that the Australian foreign lawyer regulatory system provides a good model to promote the transnational mobility of lawyers. The inclusion of a schedule in the MOU listing the essential features of Australia’s foreign lawyer regulatory framework adds further substance to the MOU and has the potential to shape the BCI’s approach on the type of foreign lawyer regulatory system they may adopt in India.
The Law Council’s effective engagement with India has been instrumental in sparking the interest of Attorney-General Brandis in legal services market access. For the first time since the Government’s decision to abolish the International Legal Services Advisory Council (ILSAC) in 2013 the Attorney-General has now indicated a strong interest in pursuing market access internationally for the Australian legal profession. This is welcomed by the Law Council.
In two speeches subsequent to meeting the BCI and engaging with the Law Council on transnational practice, the Attorney-General indicated that he would focus on market access for Australian lawyers and law firms, particularly in the Indian market.
The Law Council’s Transnational Practice Division has been working closely with the Attorney-General’s Department, providing detailed analysis and briefing on the legal profession’s interests and barriers to market access into India.
The Department of Foreign Affairs and Trade (DFAT) has also recognised the Law Council’s Transnational Practice Division’s capacity to move the conversation with India forward. DFAT’s services negotiators for the Australia-India Comprehensive Economic Cooperation Agreement have consulted the Transnational Practice Division to develop Australia’s negotiating position on legal services that is consistent with the commitments in the recent MOU with the BCI.
In 2016, the Law Council’s Transnational Practice Division will continue to engage with India and work collaboratively with the Australian Government to advance the market access objectives of the Australian legal profession in India and across the region. The Law Council’s activities will include holding a legal services symposium in India and developing a program of exchanges between the Australian and Indian legal professions.
To read an interview with the Director of the Transnational Division by Lawyers Weekly go to LCA aims to open foreign markets to Aus lawyers on www.lawyersweekly.com.au
A NEW APPROACH WITH INDIA
INTERNATIONAL
FRUITFUL NEGOTIATIONS AND ENGAGEMENT HAVE RESULTED IN NEW ACCESS TO INDIA’S LEGAL SERVICES MARKET
DECEMBER 2015 21
Mr Arjuna Nadaraja is the first director of the Law Council’s Transnational Practice Division that was established in mid-2015. Mr Nadaraja is charged with enhancing the international presence and participation of Australia’s legal services providers. He brings to the role extensive public policy and trade negotiations experience with over two decades in senior roles of the Australian Government. He has played a central role in developing and advancing Australia’s approach to the liberalisation of transnational trade in legal and related services. This work has improved opportunities internationally for Australia’s legal services providers.
In his previous role as Director of both the International Legal Services Advisory Council (ILSAC) and the International Legal Services Policy area of the Attorney-General’s Department, he was closely involved in international legal education and training, the recognition of Australian law degrees overseas and in advancing the international interests of Australia’s commercial dispute resolution service providers.
The South Pacific Lawyers’ Association (SPLA) aims to help South Pacific legal professionals practice, reform and grow. This was the theme of its second South Pacific Lawyers’ Conference in September 2015. The conference brought together more than 100 legal professionals from across the South Pacific region.
Leaders in their fields and communities covered important aspects of teaching and practising law in the South Pacific – as well as providing practical ways to work more effectively.
Topics included the regulation of the legal profession; intellectual property; adapting laws for effective reform and the future of the SPLA. Workshop topics included judicial review, case analysis and preparing for court and mediation skills.
The Conference was supported by the Law Council and the Commonwealth Government.
SOUTH PACIFIC
LAWYERS’ CONFERENCE
17-18 SEPTEMBER 2015. BRISBANE, QUEENSLAND
2NDLEGAL PRACTICE IN THE SOUTH PACIFIC
Delegates of the South Pacific Lawyers’ Conference
TRANSNATIONAL PRACTICE AT THE LAW COUNCIL
22 LAW COUNCIL REVIEW
EVENTS AND AWARDS
In a nail-biting grand final at the Administrative Appeals Tribunal (AAT) National Mooting Competition, two teams vigorously competed for the shield, mooting the merits of a Commonwealth taxation application. Ultimately it was the team from the University of Tasmania that persuaded the Tribunal. The Law Council congratulates the winning team members; Lauren Hargrave, Rochelle Hodge and Daniel Westbury.
The runner-up team from Bond University comprised Eoin Coffey, Brock Gunthorpe and William Waldron. The Best Orator for 2015 was awarded to Brock Gunthorpe.
This year is the eleventh anniversary of the annual competition, which aims to enhance law students’ understanding of the nature of administrative law practice.
The competition consisted of five rounds, running from July to October. Each round featured a unique fact scenario and documents created by AAT staff. The scenarios drew on current areas of development in the AAT’s broad jurisdiction with social security, migration, veterans’ affairs, taxation and compensation providing the inspiration for what proved to be some very tightly contested rounds.
The grand final was held at the Melbourne Registry before the Tribunal, which comprised of the Hon Justice Duncan Kerr Chev LH, Deputy President Philip Hack and Senior Member Egon Fice.
Building on last year’s interest, this year’s competition once again had a record number of registrations. The growing interest is a reflection of the quality of the competition, the committee members and the competitors.
TASSIE LAW STUDENTS WIN MOOTING SHIELD
A WORD FROM THE COORDINATORPrizes were generously donated by the Law Council and LexisNexis Australia and we thank them for longstanding and ongoing support.
While only two teams can be in the grand final, I would like to thank all competitors for their interest in the competition and the diligence with which each round was approached. Members consistently commented on the quality of the advocacy skills on display throughout the competition.
Our sincere thanks also go to the AAT members and registry staff who gave up their time to adjudicate moots, act as hearing attendants, take photographs, organise video conferences and organise catering.
These contributions provide an opportunity for future practitioners to develop their knowledge of AAT and practice their advocacy skills, both of which will be valuable throughout their careers.
Finally, I would like to thank the 2015 AAT National Mooting Competition Committee members, both past and present, for their efforts throughout the year and their hard work, support and insights. Feedback from competitors and adjudicators praised the quality of the scenarios developed by the committee and the professionalism exhibited in running the competition.
Shivanthi Herath, AAT 2015 National Mooting Competition Coordinator
“FEEDBACK FROM COMPETITORS AND ADJUDICATORS PRAISED THE QUALITY OF THE SCENARIOS DEVELOPED BY THE COMMITTEE AND THE PROFESSIONALISM EXHIBITED IN RUNNING THE COMPETITION.”
Left to right: Lauren Hargrave, Daniel Westbury, Rochelle Hodge and the Hon Justice Kerr Chev LH
DECEMBER 2015 23
PRESIDENT’S DINNERThe annual President’s dinner is an opportunity to acknowledge the outgoing President and welcome the President-elect. It is also the occasion for awarding the President’s Medal. This year’s President’s dinner was held in Canberra on 27 November 2015.
‘It has been a tremendous honour to serve as President and a genuine pleasure to work alongside Stuart, Fiona, and Morry this year. I’m extremely glad to see them continuing on the Executive alongside Arthur, Konrad and Michael. I am very much looking forward to seeing the contribution Stuart will make to the legal profession as President in 2016. We are in an exciting period of change for the profession and this is an excellent Executive team for the times.’
– Mr Duncan McConnel, outgoing President
‘Duncan has been an outstanding president. Working collaboratively, unselfishly and with enormous commitment, he has been a powerful advocate for the Australian legal profession and the rule of law. He has overseen the successful delivery of a range of initiatives across the whole spectrum of the Law Council’s responsibilities. He has taken a genuinely pragmatic and constructive mindset into his engagement in the public policy discussion and that’s an example I am sure the 2016 executive will follow.’
– Mr Stuart Clark AM, President-elect
2015 PRESIDENT’S MEDALThe Law Council President’s Medal was awarded to Mr Ian Kennedy AM for his personal and professional contribution to the Australian legal profession in a career spanning more than 40 years. In bestowing the medal, Law Council President Mr McConnel described Mr Kennedy’s extraordinary commitment and enormous contributions to the development of family law in Australia and how he improved its reputation and standing – and the professional standards of those who practice it – both in Australia and overseas.
Duncan McConnel and Ian Kennedy AM (Preisdent’s Medal winner)
Duncan McConnel, Stuart Clark AM and Chrissy McConnel
Fiona McLeod SC, Christopher Gunson, Arthur Moses SC and Jan Martin
Fiona McLeod SC, Duncan McConnel, Stuart Clark AM and Morry Bailes
24 LAW COUNCIL REVIEW
EVENTS AND AWARDS
ACCESS TO JUSTICEThe 2015 Access to Justice and Pro Bono Conference addressed the challenges and opportunities in enhancing access to legal services and pro bono work in Sydney earlier this year.
JUSTICE AND FREEDOM IN TIMES OF TERRORIn the wake of recent terrorism attacks, consideration of what we are prepared to give up in our efforts to prevent terrorist attacks at home is crucial. Ideas explored include: Why we defend freedom of expression while ceding other rights such as liberty, privacy, association, due process and movement; and how security measures affect our fundamental rights and perceptions of minorities.
PUTTING THE BRAKES ON INCARCERATIONIndigenous imprisonment rates were a focus including: the cost of incarceration in human and dollar terms; outcomes since the 1991 report into Aboriginal Deaths in Custody; the role of media; impact of punitive measures on vulnerable people; alternatives to imprisonment and why general deterrence does not work.
Also see the lead story on page 6.
THE MAGNA CARTA IN A CHANGED WORLDThe 800-year anniversary of the Magna Carta was an occasion to reflect on its relevance in modern constitutional democracies from English and Aboriginal perspectives.
HOW MUCH JUSTICE CAN WE AFFORD?In times of declining budgets, governments have been reducing expenditure on legal aid and other justice services. In light of the Productivity Commission report into access to justice arrangements, the focus was on how justice should be valued and funded and the cost of failing to adequately fund legal assistance.
The conference was presented by the Law Council and the National Pro Bono Resource Centre in conjunction with the Law Society of New South Wales. More information is available online: www.a2j15.com.au
Dr David Neal SC, Peter Greste, Senator the Hon Penny Wright and Mark Woods
Fiona McLeod SC, David Irvine AO and Professor Rosalind Croucher AM
The Hon Mr Justice Nicholas Mostyn
Duncan McConnel, John Eades, The Hon Gabrielle Upton MP, John Corker
DECEMBER 2015 25
YOUNG LAWYER OF THE YEAR The Law Council has conferred the 2015 Australian Young Lawyer Award on Kevin Kadirgamar for his outstanding pro bono work in the areas of migration and refugee law. Mr Kadirgamar, a full-time solicitor at Ward Keller in Darwin, has been tireless in his efforts to help some of the most vulnerable asylum seekers in Australia.
The award recognises Mr Kardirgamar’s efforts to give some of the community’s most vulnerable people the ability to access justice and legal help.
Forming a professional relationship with Julian Burnside QC, Mr Kardirgamar has been pivotal in a broad range of pro bono cases, including winning a Federal Court appeal in June for an asylum seeker who almost died after a 53-day hunger strike.
The Law Council is committed to upholding faith and confidence in the legal profession and sees that Mr Kardirgamar’s work demonstrates how a lawyer’s efforts can result in justice that can fundamentally change the course of a client’s life.
AUSTRALIAN YOUNG LAWYER ORGANISATION AWARDThe 2015 Australian Young Lawyer Organisation Award has been awarded to the NSW Young Lawyers International Law Committee for its outstanding contribution, primarily through its publication of The Practitioner’s Guide to International Law.
First published in 2010, the guide covers a diverse range of topics, including international dispute resolution, criminal law, environmental law, protection of cultural property, and international family law.
With international issues and the internationalisation of the legal profession becoming more significant, this publication provides a valuable practical resource for Australian legal practitioners addressing these issues in daily practice.
The award recognises the significant benefit to a range of legal professionals and the huge amount of work the NSW Young Lawyers International Law Committee puts into its production.
The 2015 National Golden Gavel and Australian Young Lawyers’ Conference will be presented by the Law Council of Australia’s Young Lawyers Committee in association with the LIV Young Lawyers Committee and supported by the Law Institute of Victoria.
Elias Yamine accepts the 2015 Australian Young Lawyer Organisation Award on behalf of the NSW Young Lawyers International Committee
AWARDS NIGHTThe Law Council’s CEO Michael Brett-Young presented awards to Australia’s young lawyers at the Law Council’s Golden Gavel event in Melbourne on Thursday 22 October 2015.
This annual event recognises the important contribution young lawyers make in the Australian community.
The Young Lawyer Award is granted to someone who has made a
RECOGNISING NEW TALENTTHE LAW COUNCIL RECOGNISES YOUNG LAWYERS WHO HAVE MADE A SIGNIFICANT CONTRIBUTION TO THE LEGAL PROFESSION AND COMMUNITY
continuous and outstanding contribution to the legal profession and the community. To be eligible, nominees must be under the age of 36 and admitted to legal practice in Australia.
The Young Lawyer Organisation Award is granted to an organisation that has initiated a program to address professional or community needs. In order to qualify, the projects must have been launched during the previous year.
Kevin Kadirgamar accepts 2015 Australian Young Lawyer Award from the Law Council’s CEO Mr Michael Brett-Young
26 LAW COUNCIL REVIEW
Business and human rights is emerging as emerging as a significant issue for Australia and the international community.
The Law Council sees a need for industry bodies in Australia to take a leadership role in raising awareness of and encouraging compliance with the United Nations Guiding Principles on Business and Human Rights. There are developments at the international level, which may result in aspects of the guiding principles becoming binding international law.
To assist with this emerging reality, the Law Council recently held a symposium for industry bodies in Australia.
The symposium, held in Sydney on 24 November 2015, was co-hosted by the Australian Human Rights Commission (AHRC) and featured an address from AHRC President Professor Gillian Triggs.
The Law Council will work with the AHRC to develop materials that enhance understanding about the impact of business and human rights on the legal profession.
The Law Council also established a Business and Human Rights Working Group and will continue to engage with the legal profession and business community on the implementation of the UN’s guiding principles.
Please contact the Law Council for more information on this work.
LAWASIA held its 28th Conference in Sydney 6-9 November 2015. On the theme of cross-border law and practice in the Asia Pacific region, the event drew on expertise from around the world. The conference explored the opportunities to increase legal knowledge and networks across this dynamic region, encompassing developments in black letter law and issues that arise in the intersects between the law, the legal profession and the wider community.
Seminars covered cross-border issues in international commerce;
LAWASIA: CROSS-BORDER LAW AND PRACTICE
EVENTS AND AWARDS
“THERE HAS BEEN AN EVOLUTION IN GLOBAL BUSINESS THINKING AND THE WIDELY ACCEPTED VIEW TODAY IS THAT RESPECT FOR HUMAN RIGHTS MUST GO BEYOND SIMPLE COMPLIANCE WITH LOCAL LAW. THERE IS A GROWING RECOGNITION THAT A STRONG BUSINESS CASE EXISTS FOR RESPECTING HUMAN RIGHTS. ADHERENCE TO HUMAN RIGHTS PRINCIPLES IS INCREASINGLY, AND IN OUR VIEW CORRECTLY, BEING VIEWED AS A PART OF CONDUCTING TRANSNATIONAL BUSINESS.”
– John Keeves, Chair of the Law Council’s Business and Human Rights Working Group.
BUSINESS AND HUMAN RIGHTS
the legal response to terrorism; lawyers, protests and politics; business, human rights and the legal profession; and other topical issues.
LAWASIA is an international organisation of lawyers’ associations, individual lawyers, judges, legal academics, and others who focus on the interests and concerns of the legal profession in the Asia Pacific region. Through its links to over 40 member organisations, LAWASIA has exposure to a collective membership of over a million lawyers worldwide.
4-5 March, Park Hyatt Melbourne
2016
CPD IMMIGRATION LAW CONFERENCE
Join Australia’s leading immigration lawyers for the
The Annual CPD Immigration Law Conference,
presented by the Migration Law Committee, will be held at
Park Hyatt Melbourne, Friday 4 and Saturday 5 March 2016.
A Welcome Cocktail Function will take place on Thursday, 3 March 2016
at the Immigration Museum, 400 Flinders Street, Melbourne.
The Conference Dinner will be held on Friday night at the National Gallery of Victoria
(NGV) with the winner of the John Gibson AM Young Lawyer Award announced for
2016. Prior to the Conference Dinner, the NGV will provide special tours of the
Andy Warhol Exhibition.
For more information or to discuss sponsorship opportunities,
please contact Victoria Marr ([email protected])
Proudly sponsored by:
TO REGISTER please contact the Law Council Secretariat on (02) 6246 3788 or email: [email protected]
DECEMBER 2015
The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.
[email protected] www.lawcouncil.asn.au
JANUARY Doing Business Across Asia Date: 21-22 January 2016Host: Singapore Academy of LawLocation: Singapore W: www.legalconvergenceasia.com E: [email protected]
FEBRUARY Family Law IntensiveDate: 13 February 2016Host: LCA Family Law SectionLocation: SydneyE: [email protected]: www.familylawsection.org.au
Superannuation Lawyers’ ConferenceDate: 25-26 FebruaryHost: LCA Superannuation Committee Location: Melbourne E: [email protected] MARCH Immigration Law Conference(& Migration Law Committee AGM)Date: 4-5 March 2016Host: LCA Federal Litigation & Dispute Resolution SectionLocation: MelbourneE: [email protected] W: www.lawcouncil.asn.au
Mahla Pearlman OrationDate: 10 March 2016Host: LCA Legal Practice SectionLocation: SydneyE: [email protected]
Family Law IntensiveDate: 18-19 March 2016Host: LCA Family Law SectionLocation: PerthE: [email protected]: www.familylawsection.org.au
MAY Family Law IntensiveDate: 7 May 2016Host: LCA Family Law SectionLocation: MelbourneE: [email protected]: www.familylawsection.org.au
OCTOBER 17th National Family Law Conference Date: 18-21 October 2016Host: LCA Family Law Section Location: Melbourne W: www.familylawsection.org.au E: [email protected]
LIST YOUR NATIONAL EVENT HEREDo you have an event to add?
Contact the Editor: [email protected]
Law Council Review
• Issue 13 • Decem
ber 2015
SMARTER JU
STICE: SAFER COM
MU
NITIES
SMARTER JUSTICE: SAFER COMMUNITIES
COMING UP
