Lawyers Weekly, June 24, 2011

IN-DEPTH

EXPORT CRUELTYVoicelesslawyer speaks up for animals

www.lawyersweekly.com.au

THE WEB

LAWYER RETURNSCain back in Maurice Blackburn fl ock

IN-DEPTH

ONCE WERE REFUGEESTwo lawyers share their story

THIS WEEK

JUDGING THE BENCHMagistrate saves her career

539 Print Post Approved 255003/05160

Will regulatory reform free the third sector?

Friday 24 June 2011

CUTTING THE RED TAPE

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L AW Y E R S W E E K LY 2 4 J U N E 2 011 3

“When I could see that this lawyer was able to take his time and assess our case on the facts and merits on humanitarian grounds, I had a feeling that lawyers are people who want to help and who are there to help the underprivileged” Read why refugee Kot Monoah was inspired to pursue a career in law – Page 12

Contents

Regulars Features

16 COVER STORY: Australia’s expanding charitable sector is set to undergo major reform. But will these changes save an industry bound by bureaucracy? Briana Everett investigates

10IN-DEPTH: The temporary ban on the export of live cattle has strengthened calls for a permanent prohibition, writes Briana Everett, while also exposing cattle producers to potential claims for damages

14 OPINION: While changes in technology have aided the delivery of services to clients within the family law sphere, Marsdens Law Group partner Tom Reeve says this has changed the internal processes of law fi rms

6 THIS WEEK: A round-up of the latest legal news

12 IN-DEPTH: Two young refugees-turned-lawyers share their thoughts on humanity, opportunity and getting a fair go. Claire Chaffey writes

20 CAREER COUNSEL: Flexible work arrangements are hard to come by for those re-entering the legal profession or changing employers, resulting in a reluctance to leave their current fi rm or organisation. Briana Everett reports

22 FOLKLAW: The lighter side of the law

Lawyers Weekly online had a record high 163,691 page views in May 2011SOURCE: Google analytics

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high 163,691 page views in 2011

Google analytics



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“When I could see that this lawyer was able to take his time and assess our case on the facts and merits on humanitarian grounds, I had a feeling that lawyers are people who want to help and who are there to help the underprivileged” Read why refugee Kot Monoah was inspired to pursue a career in law – Page 12

Contents

Regulars Features

16 COVER STORY: Australia’s expanding charitable sector is set to undergo major reform. But will these changes save an industry bound by bureaucracy? Briana Everett investigates

10IN-DEPTH: The temporary ban on the export of live cattle has strengthened calls for a permanent prohibition, writes Briana Everett, while also exposing cattle producers to potential claims for damages

14 OPINION: While changes in technology have aided the delivery of services to clients within the family law sphere, Marsdens Law Group partner Tom Reeve says this has changed the internal processes of law fi rms

6 THIS WEEK: A round-up of the latest legal news

12 IN-DEPTH: Two young refugees-turned-lawyers share their thoughts on humanity, opportunity and getting a fair go. Claire Chaffey writes

20 CAREER COUNSEL: Flexible work arrangements are hard to come by for those re-entering the legal profession or changing employers, resulting in a reluctance to leave their current fi rm or organisation. Briana Everett reports

22 FOLKLAW: The lighter side of the law

Lawyers Weekly online had a record high 163,691 page views in May 2011SOURCE: Google analytics



high 163,691 page views in 2011

Google analytics



L W_ 5 3 9 . p g 0 0 3 . p d f P a g e 3 2 0 / 0 6 / 1 1 , 4 : 4 0 P M

4 L AW Y E R S W E E K LY 2 4 J U N E 2 011 www.lawyersweekly.com.au

Editor’sNoteTWO ISSUES that have put the legal profession under the spotlight in recent weeks have not shown it in a particularly good light.

Firstly, although it has been reported in legal circles for the best part of a year (including in Lawyers Weekly), the national media coverage given to the sexual harassment claim by Bridgette Styles against Clayton Utz has called into question the environment within big law fi rms.

While that case is continuing, what the commentary revealed is that many people from within and outside the profession believe that the culture within large law fi rms is one that provides fertile ground for such instances of harassment.

The long hours, pressure to meet billing targets, drinking culture and low proportion of female partners within leading Australian law fi rms – despite more than 50 per cent of law school graduates being female – were all cited as factors that make large law unfriendly to women.

These criticisms are all valid, and a more critical eye on the culture within law fi rms is needed from its most senior people.

The fi ght of New South Wales magistrates Jennifer Betts and Brian Maloney to save their careers has provoked much discussion on how the legal profession handles mental illness within its ranks.

Last week, Minter Ellison (see story on page 8) hosted the annual members forum for the Workplace Health Promotion Network. Blake Dawson and Mallesons Stephen Jaques are also members of this network, which includes 40 of Australia’s most well-known organisations.

While most law fi rms have a similar program in place to Minters’ “Resilient ME” program to detect symptoms of depression and stress in employees, it is the culture within private practice fi rms, not its training programs, which need an overhaul.

As long as billing targets remain in excess of 7.5 hours, practice groups get compared and judged against other practice groups, and the general philosophy of putting the clients interest above all else – including personal interests – prevails, the high level of mental illness within the legal profession will continue.

The fact that fi rms recognise this as a problem is a step in the right direction. But while the profession as a whole continues to celebrate and expect lawyers to work on through the night and on weekends to ensure a deal is done, or that a litigation case is watertight, we will continue to see high rates of depression, mental illness and turnover from within the ranks.

Tweet, tweet Get your 140 characters of must-know legal news via @lawyersweekly

Friendly facesFollow Lawyers Weekly on Facebook at www.facebook.com/lawyersweekly

Have your say Do you have something you’d like to share? Send an email to [email protected] or phone (02) 9422 2875. Alternatively, go to www.lawyersweekly.com.au and make a comment online.

TOP 10 STORIES ONLINE THIS WEEK

1 Four year old offers career advice 2 High court judge takes top honours 3 NSW magistrate with mental illness fi ghts for career 4 Clayton Utz takes team back from mid tier 5 Magistrate keeps job 6 Lawyers sleep out in cold for charity 7 Six fi rms act on major PPP 8 Angelina aids pro bono cause 9 Tax lawyer wows Presidential debate10 Preparation key for staying out of court

NEXT WEEK

Who has made it to the top this year? Lawyers Weekly gives you a comprehensive wrap-up of Australia’s partnership announce-ments, and delves into major trends, insights and analysis.

E D I T O R I A L B O A R D Lawyers Weekly is delighted to have the following

industry leaders on its editorial board

A B O U T U S Editor: Justin Whealing

Deputy Editor: Claire ChaffeySenior Journalist: Briana Everett

Journalist: Stephanie QuineContributors: Sarah O’Carroll, Ben NiceDesign Manager: Anthony Vandenberg

Senior Online Producer: Rebecca WhalenGroup Production Manager: Kirsten Wissel

Group Sales Manager Adrian Fellowes

SUBSCRIBE TODAYLawyers Weekly is published weekly and is

available by subscription. Please email [email protected]

All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067

ADVERTISING ENQUIRIES: Adrian Fellowes

[email protected](02) 9422 2134 (mob) 0407 489 060

Vic, SA, WA: Stephen Richards (02) 9422 2891

EDITORIAL ENQUIRIES: Justin Whealing

[email protected] (02) 9422 2832 All mail for the editorial department should be sent to:

Lawyers Weekly, Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067

CAB MEMBER SINCESEPTEMBER 2000

Copyright is reserved throughout. No part of this publication may be reproduced without the express written permission of the publisher. Contributions are invited, but copies of all work should be kept, as Lawyers Weekly can accept no responsibility for loss. Lawyers Weekly and LexisNexis are divisions of Reed International Books Australia Pty Limited, ACN 001 002 357 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 ISSN 1833-5209 Important Privacy Notice: You have both a right of access to the personal information we hold about you and to ask us to correct if it is inaccurate or out of date. Please direct any queries to: The Privacy Offi cer, LexisNexis Australia or email [email protected]. © 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.

Editor, Justin Whealing

Nick Abrahams Partner and

Sydney chairman, Norton Rose

Helen McKenzie Deputy

managing partner,

Blake Dawson

Sharon Cook Managing

partner, Henry Davis York

David CowlingPartner,

Clayton Utz

Ewen Crouch Chairman of

partners, Allens Arthur Robinson

Sue GilchristPartner and

practice leader (intellectual

property group), Freehills

Andrew GrechManaging director, Slater & Gordon

Will IrvingGroup general counsel, Telstra Corporation

Joe CatanzaritiPartner, Clayton Utz

Robert MillinerChief executive partner, Mallesons Stephen Jaques

Megan PittDirector, Australian Government Solicitor

Lucinda SmithPartner, Thomson Lawyers

JOIN THE CONVERSATION

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FOCUS ON AUSTRALIA

Our team maintains excellent networks across Australia to ensure that Marsdencandidates have the most comprehensive options Australia wide. Here is just aselection of roles that we are currently instructed on.

Jonathan Walmsley02 8014 9050

[email protected]

Samantha Cowling02 8014 9053

[email protected]

SYDNEY• Banking & Finance

Premier Firm – 2-7 years

• EmploymentTop Mid-Tier Firm – 3-5 years

• Corporate M&ATop Tier Firm – 3 years +

• IT /CommunicationsLeading Australian Firm – 3-6 years

MELBOURNE• Commercial Litigation


• Construction (Front & Back End) Top tier Firm – 2-7 years

• Insolvency & RestructuringTop National Practice – 3 years +

• ECM/M&AAustralasian Firm – 3 years +

PERTH• Energy (Oil & Gas)

Top Tier Firm – 5 years +• Energy (Mining)

Premier Firm – Senior Associate

BRISBANE• Energy & Resources

Top Tier Firm – 2-8 years• Projects

Leading Australian Firm – 3-7 years

Greg Plummer02 8014 9052

[email protected]

For a confidential discussion about these opportunities or other opportunities at home or overseas contact:

To search Australian and global job opportunities go to www.marsdengroup.com or download our free iPhone App(search iTunes – Marsden Job Search) - legal job searching just got easier.

L W_ 5 3 9 . p g 0 0 5 . p d f P a g e 5 2 0 / 0 6 / 1 1 , 1 2 : 1 1 P M


Editor’sNoteTWO ISSUES that have put the legal profession under the spotlight in recent weeks have not shown it in a particularly good light.

Firstly, although it has been reported in legal circles for the best part of a year (including in Lawyers Weekly), the national media coverage given to the sexual harassment claim by Bridgette Styles against Clayton Utz has called into question the environment within big law fi rms.

While that case is continuing, what the commentary revealed is that many people from within and outside the profession believe that the culture within large law fi rms is one that provides fertile ground for such instances of harassment.

The long hours, pressure to meet billing targets, drinking culture and low proportion of female partners within leading Australian law fi rms – despite more than 50 per cent of law school graduates being female – were all cited as factors that make large law unfriendly to women.

These criticisms are all valid, and a more critical eye on the culture within law fi rms is needed from its most senior people.

The fi ght of New South Wales magistrates Jennifer Betts and Brian Maloney to save their careers has provoked much discussion on how the legal profession handles mental illness within its ranks.

Last week, Minter Ellison (see story on page 8) hosted the annual members forum for the Workplace Health Promotion Network. Blake Dawson and Mallesons Stephen Jaques are also members of this network, which includes 40 of Australia’s most well-known organisations.

While most law fi rms have a similar program in place to Minters’ “Resilient ME” program to detect symptoms of depression and stress in employees, it is the culture within private practice fi rms, not its training programs, which need an overhaul.

As long as billing targets remain in excess of 7.5 hours, practice groups get compared and judged against other practice groups, and the general philosophy of putting the clients interest above all else – including personal interests – prevails, the high level of mental illness within the legal profession will continue.

The fact that fi rms recognise this as a problem is a step in the right direction. But while the profession as a whole continues to celebrate and expect lawyers to work on through the night and on weekends to ensure a deal is done, or that a litigation case is watertight, we will continue to see high rates of depression, mental illness and turnover from within the ranks.

Tweet, tweet Get your 140 characters of must-know legal news via @lawyersweekly

Friendly facesFollow Lawyers Weekly on Facebook at www.facebook.com/lawyersweekly

Have your say Do you have something you’d like to share? Send an email to [email protected] or phone (02) 9422 2875. Alternatively, go to www.lawyersweekly.com.au and make a comment online.

TOP 10 STORIES ONLINE THIS WEEK

1 Four year old offers career advice 2 High court judge takes top honours 3 NSW magistrate with mental illness fi ghts for career 4 Clayton Utz takes team back from mid tier 5 Magistrate keeps job 6 Lawyers sleep out in cold for charity 7 Six fi rms act on major PPP 8 Angelina aids pro bono cause 9 Tax lawyer wows Presidential debate10 Preparation key for staying out of court

NEXT WEEK

Who has made it to the top this year? Lawyers Weekly gives you a comprehensive wrap-up of Australia’s partnership announce-ments, and delves into major trends, insights and analysis.

E D I T O R I A L B O A R D Lawyers Weekly is delighted to have the following

industry leaders on its editorial board

A B O U T U S Editor: Justin Whealing

Deputy Editor: Claire ChaffeySenior Journalist: Briana Everett

Journalist: Stephanie QuineContributors: Sarah O’Carroll, Ben NiceDesign Manager: Anthony Vandenberg

Senior Online Producer: Rebecca WhalenGroup Production Manager: Kirsten Wissel

Group Sales Manager Adrian Fellowes

SUBSCRIBE TODAYLawyers Weekly is published weekly and is

available by subscription. Please email [email protected]

All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067

ADVERTISING ENQUIRIES: Adrian Fellowes

[email protected](02) 9422 2134 (mob) 0407 489 060

Vic, SA, WA: Stephen Richards (02) 9422 2891

EDITORIAL ENQUIRIES: Justin Whealing

[email protected] (02) 9422 2832 All mail for the editorial department should be sent to:

Lawyers Weekly, Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067

CAB MEMBER SINCESEPTEMBER 2000

Copyright is reserved throughout. No part of this publication may be reproduced without the express written permission of the publisher. Contributions are invited, but copies of all work should be kept, as Lawyers Weekly can accept no responsibility for loss. Lawyers Weekly and LexisNexis are divisions of Reed International Books Australia Pty Limited, ACN 001 002 357 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 ISSN 1833-5209 Important Privacy Notice: You have both a right of access to the personal information we hold about you and to ask us to correct if it is inaccurate or out of date. Please direct any queries to: The Privacy Offi cer, LexisNexis Australia or email [email protected]. © 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.

Editor, Justin Whealing

Nick Abrahams Partner and

Sydney chairman, Norton Rose

Helen McKenzie Deputy

managing partner,

Blake Dawson

Sharon Cook Managing

partner, Henry Davis York

David CowlingPartner,

Clayton Utz

Ewen Crouch Chairman of

partners, Allens Arthur Robinson

Sue GilchristPartner and

practice leader (intellectual

property group), Freehills

Andrew GrechManaging director, Slater & Gordon

Will IrvingGroup general counsel, Telstra Corporation

Joe CatanzaritiPartner, Clayton Utz

Robert MillinerChief executive partner, Mallesons Stephen Jaques

Megan PittDirector, Australian Government Solicitor

Lucinda SmithPartner, Thomson Lawyers

JOIN THE CONVERSATION

L W_ 5 3 9 . p g 0 0 4 . p d f P a g e 4 2 0 / 0 6 / 1 1 , 5 : 3 4 P M

FOCUS ON AUSTRALIA

Our team maintains excellent networks across Australia to ensure that Marsdencandidates have the most comprehensive options Australia wide. Here is just aselection of roles that we are currently instructed on.

Jonathan Walmsley02 8014 9050

[email protected]

Samantha Cowling02 8014 9053

[email protected]

SYDNEY• Banking & Finance


• EmploymentTop Mid-Tier Firm – 3-5 years

• Corporate M&ATop Tier Firm – 3 years +

• IT /CommunicationsLeading Australian Firm – 3-6 years

MELBOURNE• Commercial Litigation


• Construction (Front & Back End) Top tier Firm – 2-7 years

• Insolvency & RestructuringTop National Practice – 3 years +

• ECM/M&AAustralasian Firm – 3 years +

PERTH• Energy (Oil & Gas)

Top Tier Firm – 5 years +• Energy (Mining)

Premier Firm – Senior Associate

BRISBANE• Energy & Resources

Top Tier Firm – 2-8 years• Projects

Leading Australian Firm – 3-7 years

Greg Plummer02 8014 9052

[email protected]

For a confidential discussion about these opportunities or other opportunities at home or overseas contact:

To search Australian and global job opportunities go to www.marsdengroup.com or download our free iPhone App(search iTunes – Marsden Job Search) - legal job searching just got easier.

L W_ 5 3 9 . p g 0 0 5 . p d f P a g e 5 2 0 / 0 6 / 1 1 , 1 2 : 1 1 P M

thisweek

Lawyers launch tool to put donors in driver’s seatFormer Mallesons

Stephen Jaques lawyer and community lobbyist Alison Leemen and her husband Mark Leeman, a partner at US law fi rm Skadden, are challenging Australians to donate one per cent of their salary in accordance with personal income levels.

Launched this month, Giving One Percent provides free unlimited access to comparable, analytical information on nearly 100 tax-deductible charities working to save lives and eliminate poverty overseas.

Middletons is acting as a pro bono legal partner.

Ex Maurice Blackburn head returnsJohn Cain, the managing partner of

Maurice Blackburn for over 10 years until 2002, is rejoining the fi rm.

Cain, the son of the former Victorian premier John Cain Jr, was the Victorian Government Solicitor for fi ve years until March this year. In that role, he had approved the appointment of Diana Karamicov to associate crown prosecutor, which ultimately led to the resignation of the Victorian DPP, Jeremy Rapke QC.

Cain returns to Maurice Blackburn as the national special projects manager. The fi rm also announced the promotion of 17 plaintiff lawyers to senior roles.

High Court judge takes top honoursAustralian High Court judge Susan Kiefel

topped the 2011 Queen’s Birthday honours list after being named as a Companion of the Order of Australia. A Queenslander, Justice Kiefel left school at the age of 15 to work as a law fi rm receptionist before going on to complete her schooling and, in 1987, became Queensland’s fi rst-ever female Queen’s Counsel. In 1994, she was appointed as a Justice of the Federal Court and, in 2007, became only the third woman to be sworn in as a Justice of the High Court of Australia.

SLATER & GORDON is acting for a group of former child migrants in a class action seeking compensation for years of sexual, physical and psychological abuse while at the Fairbridge Farm School in Molong.

The action is being brought against the Fairbridge Foundation, the State of NSW and the Commonwealth of Australia, with the complainants alleging sexual assaults by members of staff and persons to whose care they were entrusted; a poor-quality education which left many illiterate; and general humiliation and a lack of care.

It is alleged that the foundation and both the state and federal governments allowed a system of institutional abuse to develop at the Molong Farm School over several decades. More than 65 former

The Web

RE W IND

Slaters launches child migrant action

The Gillard Government faced yet more pressure in relation to the carbon price, with a new report showing that wholesale electricity prices would rise by 121 per cent if a tax was introduced.

The Bank for International Settlement warned that a loss of confi dence in the US and Japanese governments to rein in their national debt could be disastrous for the global economy.

Left-leaning members of the Federal Labor Party said they would not back the Gillard Government’s plan to send asylum seekers to Malaysia unless the move had the approval of the United Nations.

Potential new laws which would have seen foreign companies wishing to buy more than fi ve hectares of Australian farming land seeking approval from the Treasurer were rejected.

The Queensland Labor Party threw its weight behind the legalisation of gay marriage, calling on the Federal Labor Party and other state parties to do the same.

residents are already supporting the class action.

Slater & Gordon lawyer Ken Fowlie said the class action was a “last resort” after years trying to reach an out-of-court settlement.

“It is very disappointing. Former residents of the Molong Farm, who have already endured so much, now have to go through a long and diffi cult legal fi ght to win justice,” Fowlie said.

“Despite recent Senate inquiries recommending the creation of an out-of-court scheme to compensate victims, our clients have been left with no choice but to go to court to seek justice.”

For much of the 1900s, the British-based Fairbridge Foundation sent children from the United Kingdom to Australia,

Canada and Rhodesia for resettlement, mostly without their parents.

Between 1938 and 1974, hundreds of children were sent from England to the Fairbridge Farm School in Molong. The Immigration (Guardianship of Children) Act placed legal guardianship for the children with the Federal Minister for Immigration, who in turn transferred custodial responsibility to the State of NSW Child Welfare Department.

The class action covers all residents at the Molong Fairbridge Farm School for any period between 1938 and 1974 who were physically or sexually assaulted and who have suffered a relevant injury, including post-traumatic stress disorder, anxiety or some other form of psychiatric or physical injury.

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thisweek

ALLENS ARTHUR Robinson is advising Plenary Group and its GoldLinQ Consortium partners – Bombardier, Downer EDI, McConnell Dowell and Keolis – on the $1 billion fi rst stage of the Gold Coast Rapid Transit project, one of Australia’s fi rst public transport public-private partnerships (PPPs).

The fi rst stage of the light rail project, which is expected to be completed in 2014, involves a 13km stretch between Broadbeach and the Gold Coast

Swaab takes Corrs property lawyer Cvetanka Trpeski has left Corrs Chambers

Westgarth to join Swaab Attorneys as a senior associate in Sydney. Her experience includes advising a range of property trusts and large corporations in property develop-ment joint ventures and other forms of contractual arrange-ments, as well as leasing advice.

Lamb joins ACLA boardThe Australian Corporate Lawyers Association has

appointed Adelaide Casino’s legal and corporate affairs manager, Andrew Lamb, to its board. Lamb will continue his role at Adelaide Casino – which he has held since 2005 – where he is responsible for the organisation’s legal matters as well as a number of corporate tasks including government relations.

Blakes partner joins tax advisory bodyBlake Dawson tax partner Teresa Dyson

has been appointed to the Board of Taxation. Dyson, who specialises in direct tax law in the resources, infrastructure and fi nance sectors, will join the non-statutory body, which advises on the design, operation and implementation of Australia’s taxation laws.

Barry.Nilsson appoints senior associateChristine Zarb (pictured) has been appointed a senior associate

at Barry.Nilsson Lawyers, while Bruce Ballment and Amber Quickenden have joined the fi rm as solicitors. Zarb, whose career spans more than 14 years, joins Barry.Nilsson’s family law team from Taussig Cherrie Fildes.

Deal namePlenary Group and GoldLinQ Consortium partners on fi rst stage of Gold Coast Rapid Transit projectKey playersAllens Arthur Robinson; Corrs Chambers Westgarth; Mallesons Stephen Jaques, Maddocks; DLA Piper; Minter Ellison

Movers &

Shakers

DE A L OF THE W EEK

DE A L M A K ERS

Grant Parker Nick Abrahams Michael Ziegelaar

Firm Sparke Helmore Norton Rose; Russell McVeigh

Freehills; Baker & McKenzie

Deal name Sydney Ports Corporation on construction contract for Bulk Liquids Berth 2 project at Port Botany

Infosys on an acquisition of Gen-I’s Software Solutions practice X

Growthpoint on takeover bid for Rabinov Property Trust

Area Building and construction Technology M&A Property M&A

Value $80 million Not disclosed $1.17 billion

Key players Sparkes’ Grant Parker and Darren Rankine

Norton Rose’s Nick Abrahams

Freehills’ Michael Ziegelaar

Six fi rms act on major PPP

University Hospital. The GoldLinQ Consortium announced fi nancial closure for the fi rst stage of the light rail project on 7 June. The fi nancing will include $365 million of debt and $65 million of equity.

Partner Emma Warren and senior associate David Donnelly led the Allens team that advised GoldLinQ on all aspects of its successful bid for the project.

“The Gold Coast Rapid Transit PPP is a signifi cant development for the Gold Coast,” said Warren. “For a technically, commercially and legally complex project like this to reach fi nancial close in such a short space of time, shows how well the PPP procurement process can be used for the effi cient delivery of signifi cant infrastructure projects.”

PPPs are playing an increasing role in fi nancing Australian infrastructure. Infrastructure Projects Australia has estimated that approximately $400 billion will be spent on Australian infrastructure in the next decade and that investment in PPPs will constitute between 10 and 15 per cent of that market, generating about $6 billion in value to the Australian public.

Corrs Chambers Westgarth is acting for the State Government; Mallesons Stephen Jaques for the fi nanciers; Maddocks for McConnell Dowell; DLA Piper for Keolis and Downer EDI; and Minter Ellison for Bombardier.

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thisweek

Lawyers launch tool to put donors in driver’s seatFormer Mallesons

Stephen Jaques lawyer and community lobbyist Alison Leemen and her husband Mark Leeman, a partner at US law fi rm Skadden, are challenging Australians to donate one per cent of their salary in accordance with personal income levels.

Launched this month, Giving One Percent provides free unlimited access to comparable, analytical information on nearly 100 tax-deductible charities working to save lives and eliminate poverty overseas.

Middletons is acting as a pro bono legal partner.

Ex Maurice Blackburn head returnsJohn Cain, the managing partner of

Maurice Blackburn for over 10 years until 2002, is rejoining the fi rm.

Cain, the son of the former Victorian premier John Cain Jr, was the Victorian Government Solicitor for fi ve years until March this year. In that role, he had approved the appointment of Diana Karamicov to associate crown prosecutor, which ultimately led to the resignation of the Victorian DPP, Jeremy Rapke QC.

Cain returns to Maurice Blackburn as the national special projects manager. The fi rm also announced the promotion of 17 plaintiff lawyers to senior roles.

High Court judge takes top honoursAustralian High Court judge Susan Kiefel

topped the 2011 Queen’s Birthday honours list after being named as a Companion of the Order of Australia. A Queenslander, Justice Kiefel left school at the age of 15 to work as a law fi rm receptionist before going on to complete her schooling and, in 1987, became Queensland’s fi rst-ever female Queen’s Counsel. In 1994, she was appointed as a Justice of the Federal Court and, in 2007, became only the third woman to be sworn in as a Justice of the High Court of Australia.

SLATER & GORDON is acting for a group of former child migrants in a class action seeking compensation for years of sexual, physical and psychological abuse while at the Fairbridge Farm School in Molong.

The action is being brought against the Fairbridge Foundation, the State of NSW and the Commonwealth of Australia, with the complainants alleging sexual assaults by members of staff and persons to whose care they were entrusted; a poor-quality education which left many illiterate; and general humiliation and a lack of care.

It is alleged that the foundation and both the state and federal governments allowed a system of institutional abuse to develop at the Molong Farm School over several decades. More than 65 former

The Web

RE W IND

Slaters launches child migrant action

The Gillard Government faced yet more pressure in relation to the carbon price, with a new report showing that wholesale electricity prices would rise by 121 per cent if a tax was introduced.

The Bank for International Settlement warned that a loss of confi dence in the US and Japanese governments to rein in their national debt could be disastrous for the global economy.

Left-leaning members of the Federal Labor Party said they would not back the Gillard Government’s plan to send asylum seekers to Malaysia unless the move had the approval of the United Nations.

Potential new laws which would have seen foreign companies wishing to buy more than fi ve hectares of Australian farming land seeking approval from the Treasurer were rejected.

The Queensland Labor Party threw its weight behind the legalisation of gay marriage, calling on the Federal Labor Party and other state parties to do the same.

residents are already supporting the class action.

Slater & Gordon lawyer Ken Fowlie said the class action was a “last resort” after years trying to reach an out-of-court settlement.

“It is very disappointing. Former residents of the Molong Farm, who have already endured so much, now have to go through a long and diffi cult legal fi ght to win justice,” Fowlie said.

“Despite recent Senate inquiries recommending the creation of an out-of-court scheme to compensate victims, our clients have been left with no choice but to go to court to seek justice.”

For much of the 1900s, the British-based Fairbridge Foundation sent children from the United Kingdom to Australia,

Canada and Rhodesia for resettlement, mostly without their parents.

Between 1938 and 1974, hundreds of children were sent from England to the Fairbridge Farm School in Molong. The Immigration (Guardianship of Children) Act placed legal guardianship for the children with the Federal Minister for Immigration, who in turn transferred custodial responsibility to the State of NSW Child Welfare Department.

The class action covers all residents at the Molong Fairbridge Farm School for any period between 1938 and 1974 who were physically or sexually assaulted and who have suffered a relevant injury, including post-traumatic stress disorder, anxiety or some other form of psychiatric or physical injury.

6 L AW Y E R S W E E K LY 2 4 J U N E 2 011 w w w.law yersweekly.com.au

L W_ 5 3 9 . p g 0 0 6 . p d f P a g e 6 2 0 / 0 6 / 1 1 , 3 : 3 5 P M


thisweek

ALLENS ARTHUR Robinson is advising Plenary Group and its GoldLinQ Consortium partners – Bombardier, Downer EDI, McConnell Dowell and Keolis – on the $1 billion fi rst stage of the Gold Coast Rapid Transit project, one of Australia’s fi rst public transport public-private partnerships (PPPs).

The fi rst stage of the light rail project, which is expected to be completed in 2014, involves a 13km stretch between Broadbeach and the Gold Coast

Swaab takes Corrs property lawyer Cvetanka Trpeski has left Corrs Chambers

Westgarth to join Swaab Attorneys as a senior associate in Sydney. Her experience includes advising a range of property trusts and large corporations in property develop-ment joint ventures and other forms of contractual arrange-ments, as well as leasing advice.

Lamb joins ACLA boardThe Australian Corporate Lawyers Association has

appointed Adelaide Casino’s legal and corporate affairs manager, Andrew Lamb, to its board. Lamb will continue his role at Adelaide Casino – which he has held since 2005 – where he is responsible for the organisation’s legal matters as well as a number of corporate tasks including government relations.

Blakes partner joins tax advisory bodyBlake Dawson tax partner Teresa Dyson

has been appointed to the Board of Taxation. Dyson, who specialises in direct tax law in the resources, infrastructure and fi nance sectors, will join the non-statutory body, which advises on the design, operation and implementation of Australia’s taxation laws.

Barry.Nilsson appoints senior associateChristine Zarb (pictured) has been appointed a senior associate

at Barry.Nilsson Lawyers, while Bruce Ballment and Amber Quickenden have joined the fi rm as solicitors. Zarb, whose career spans more than 14 years, joins Barry.Nilsson’s family law team from Taussig Cherrie Fildes.

Deal namePlenary Group and GoldLinQ Consortium partners on fi rst stage of Gold Coast Rapid Transit projectKey playersAllens Arthur Robinson; Corrs Chambers Westgarth; Mallesons Stephen Jaques, Maddocks; DLA Piper; Minter Ellison

Movers &

Shakers

DE A L OF THE W EEK

DE A L M A K ERS

Grant Parker Nick Abrahams Michael Ziegelaar

Firm Sparke Helmore Norton Rose; Russell McVeigh

Freehills; Baker & McKenzie

Deal name Sydney Ports Corporation on construction contract for Bulk Liquids Berth 2 project at Port Botany

Infosys on an acquisition of Gen-I’s Software Solutions practice X

Growthpoint on takeover bid for Rabinov Property Trust

Area Building and construction Technology M&A Property M&A

Value $80 million Not disclosed $1.17 billion

Key players Sparkes’ Grant Parker and Darren Rankine

Norton Rose’s Nick Abrahams

Freehills’ Michael Ziegelaar

Six fi rms act on major PPP

University Hospital. The GoldLinQ Consortium announced fi nancial closure for the fi rst stage of the light rail project on 7 June. The fi nancing will include $365 million of debt and $65 million of equity.

Partner Emma Warren and senior associate David Donnelly led the Allens team that advised GoldLinQ on all aspects of its successful bid for the project.

“The Gold Coast Rapid Transit PPP is a signifi cant development for the Gold Coast,” said Warren. “For a technically, commercially and legally complex project like this to reach fi nancial close in such a short space of time, shows how well the PPP procurement process can be used for the effi cient delivery of signifi cant infrastructure projects.”

PPPs are playing an increasing role in fi nancing Australian infrastructure. Infrastructure Projects Australia has estimated that approximately $400 billion will be spent on Australian infrastructure in the next decade and that investment in PPPs will constitute between 10 and 15 per cent of that market, generating about $6 billion in value to the Australian public.

Corrs Chambers Westgarth is acting for the State Government; Mallesons Stephen Jaques for the fi nanciers; Maddocks for McConnell Dowell; DLA Piper for Keolis and Downer EDI; and Minter Ellison for Bombardier.

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thisweek

Minters uses Beyond Blue to tackle mental illness

Minter ellison consulted with Beyond Blue to help the firm recognise signs of depression in its lawyers.

speaking to Lawyers Weekly ahead of a major forum on workplace health hosted by the firm on 16 June, Minters partner Kristy edser said the former Victorian Premier and Beyond Blue chairman, Jeff Kennett, was consulted in the formation of the firm’s “resilient Me program”, launched in 2010.

“the whole industry knows there’s an issue,” said edser. “People have always been scared to put their hands up and talk about it but this program is changing the mindset.”

edser added that the Minters program targeted prevention and awareness, with employees having access to “skills sessions” to help identify symptoms of depression and stress in themselves or others.

Minters also works with an “employee assistance partner”, an external counselling body, which comes in and runs sessions on a range of topics to promote resilient lifestyle habits and relationships.

Minters hosted more than 40 organisational members of the Workplace Health Promotion network for its annual member’s forum in sydney last week.

Blake Dawson and Mallesons stephen Jaques are also financial members of the organisation.

the event featured case studies from network members and a panel discussion on the appropriate role and focus of workplace wellbeing programs.

it is estimated that one in five Australian employees develop symptoms of mental illness each year.

The SouTh Australian Government’s decision to deny a defendant their costs, having successfully defended a police prosecution, has been condemned by legal groups.

“Introducing such a proposal through the budget

process without consultation with the legal profession is outrageous,” said Law Society president Ralph Bönig. “To deny a successful party their costs goes against all ordinary principles of justice.”

JennIfeR BeTTS will retain her status as a magistrate in nSW.

on 16 June MPs from the nSW Legislative Council voted not to dismiss the 17-year magistrate after four complaints made against her, concerning the period between 2003 and 2009, were upheld by the nSW Judicial Commission.

After a debate featuring speakers from both government and non-government MPs, the nSW upper house voted overwhelmingly to allow Betts to stay on the bench.

“In her 17 years on the bench, she has dealt with around 50,000 matters,” Labor MP Luke foley told the house, according to the ABC.

“There are four complaints that the Conduct Division addressed in its report. I don't want to sound trite, but I would suggest that all of us as members of Parliament would be complained about far more than four in 50,000 occasions.”

The day before (15 June), Betts became only the second magistrate to be asked to address the Parliament of nSW to show cause as to why she shouldn't be sacked.

In an emotional speech lasting nearly an hour, Betts cited her decision to stop taking medication for depression in late 2008 - a period encompassing two of the four complaints - as an explanation for her behaviour and to defend accusations that she had prejudged those cases.

“In reality, all judicial officers are at risk of succumbing to the stresses of judicial office, not just those who suffer from a medical condition such as depression,” Betts told Parliament, as reported by the ABC. “Those of us who have had such a condition should not be discriminated against because of it.”

Betts reiterated that her behaviour did not result in any miscarriage of justice and that she is now “fit for duty”.

At the time of going to press, magistrate Brian Maloney, who has bipolar disorder, was yet to address nSW parliament in a bid to show cause why he shouldn’t be sacked after the Supreme Court upheld a nSW Judicial Commission finding that he was “incapacitated” for the job.

Magistrate keeps job

SA to deny costs for defendants under current laws, a magistrate has the

discretion to award costs in favour of a successful party, resulting in an estimated $2.8 million being awarded this financial year.

According to the Law Society, the net effect of the bill will be to potentially deny parties the ability to defend police prosecutions and therefore to deny justice at the bottom end of the scale.

“If $2.8 million is the difference between South Australia Police and the Government in this state being able to manage its affairs, then this state is certainly on the brink of financial disaster,” said Bönig.

The South Australian president of the Australian Lawyers Alliance, Tony Kerin, said that if the Government’s amendments get up, it will be “a sorry day for the rights of the innocent in the state”.

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thisweek

Minters uses Beyond Blue to tackle mental illness

Minter ellison consulted with Beyond Blue to help the firm recognise signs of depression in its lawyers.

speaking to Lawyers Weekly ahead of a major forum on workplace health hosted by the firm on 16 June, Minters partner Kristy edser said the former Victorian Premier and Beyond Blue chairman, Jeff Kennett, was consulted in the formation of the firm’s “resilient Me program”, launched in 2010.

“the whole industry knows there’s an issue,” said edser. “People have always been scared to put their hands up and talk about it but this program is changing the mindset.”

edser added that the Minters program targeted prevention and awareness, with employees having access to “skills sessions” to help identify symptoms of depression and stress in themselves or others.

Minters also works with an “employee assistance partner”, an external counselling body, which comes in and runs sessions on a range of topics to promote resilient lifestyle habits and relationships.

Minters hosted more than 40 organisational members of the Workplace Health Promotion network for its annual member’s forum in sydney last week.

Blake Dawson and Mallesons stephen Jaques are also financial members of the organisation.

the event featured case studies from network members and a panel discussion on the appropriate role and focus of workplace wellbeing programs.

it is estimated that one in five Australian employees develop symptoms of mental illness each year.

The SouTh Australian Government’s decision to deny a defendant their costs, having successfully defended a police prosecution, has been condemned by legal groups.

“Introducing such a proposal through the budget

process without consultation with the legal profession is outrageous,” said Law Society president Ralph Bönig. “To deny a successful party their costs goes against all ordinary principles of justice.”

JennIfeR BeTTS will retain her status as a magistrate in nSW.

on 16 June MPs from the nSW Legislative Council voted not to dismiss the 17-year magistrate after four complaints made against her, concerning the period between 2003 and 2009, were upheld by the nSW Judicial Commission.

After a debate featuring speakers from both government and non-government MPs, the nSW upper house voted overwhelmingly to allow Betts to stay on the bench.

“In her 17 years on the bench, she has dealt with around 50,000 matters,” Labor MP Luke foley told the house, according to the ABC.

“There are four complaints that the Conduct Division addressed in its report. I don't want to sound trite, but I would suggest that all of us as members of Parliament would be complained about far more than four in 50,000 occasions.”

The day before (15 June), Betts became only the second magistrate to be asked to address the Parliament of nSW to show cause as to why she shouldn't be sacked.

In an emotional speech lasting nearly an hour, Betts cited her decision to stop taking medication for depression in late 2008 - a period encompassing two of the four complaints - as an explanation for her behaviour and to defend accusations that she had prejudged those cases.

“In reality, all judicial officers are at risk of succumbing to the stresses of judicial office, not just those who suffer from a medical condition such as depression,” Betts told Parliament, as reported by the ABC. “Those of us who have had such a condition should not be discriminated against because of it.”

Betts reiterated that her behaviour did not result in any miscarriage of justice and that she is now “fit for duty”.

At the time of going to press, magistrate Brian Maloney, who has bipolar disorder, was yet to address nSW parliament in a bid to show cause why he shouldn’t be sacked after the Supreme Court upheld a nSW Judicial Commission finding that he was “incapacitated” for the job.

Magistrate keeps job

SA to deny costs for defendants under current laws, a magistrate has the

discretion to award costs in favour of a successful party, resulting in an estimated $2.8 million being awarded this financial year.

According to the Law Society, the net effect of the bill will be to potentially deny parties the ability to defend police prosecutions and therefore to deny justice at the bottom end of the scale.

“If $2.8 million is the difference between South Australia Police and the Government in this state being able to manage its affairs, then this state is certainly on the brink of financial disaster,” said Bönig.

The South Australian president of the Australian Lawyers Alliance, Tony Kerin, said that if the Government’s amendments get up, it will be “a sorry day for the rights of the innocent in the state”.

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thisweek

Trowers head northUK firm Trowers & Hamlins will open a new office in Birmingham that will focus on providing low-cost legal services to the affordable housing

sector, reports The Lawyer. The new office will open on 4 July and builds on the firm’s existing network of offices in London, Exeter and Manchester and the Middle East. Senior partner Jonathan Adlington said: “We are broadening our national network so that we are better positioned to meet the wide-ranging needs of our clients across the UK.”

CC funds group takes a blow Clifford Chance UK is going to lose the majority of its city funds practice, reports Legal Week. A four-partner team will be exiting the firm to join Weil Gotshal

& Manges in London. The team comprises funds partners Ed Gander, Nigel Clark and Nick Benson, as well as tax partner Jonathan Kandel. The resignations will leave the firm with just one city funds partner, Nigel Hatfield, who will replace Gander in leading the remaining team.

Col hits out at competitorUK College of Law (CoL) chief executive Nigel Savage has criticised the UK’s newest private university, which plans to offer law degrees

costing £18,000 ($27,600) a year, reports The Lawyer. The New College of the Humanities, which is backed by 14 “celebrity” academics including philosopher A. C. Grayling and biologist Richard Dawkins, says it will teach “gifted” undergraduates and prepare them for degrees at the University of London.

Top firms fight health caseThree UK-based Magic Circle firms are acting on the high-profile restructure of Southern Cross as the troubled care-homes group tries

to strike a deal with landlords over unpaid rent, reports Legal Week. The negotiations have generated media attention amid fears the group may be forced to close some of its homes due to difficulties paying bills. Clifford Chance is advising Southern Cross, Linklaters is advising a committee of 80 landlords, and Freshfields Bruckhaus Deringer is acting for outsourcing firm Capita.

US/U

K U

pdate

A Full Federal Court ruling on 1 June will cause short-term uncertainty in the application of Australia’s transfer pricing rules, according to a tax expert.

Deloitte tax partner Fiona Craig said the dismissal of an appeal by the ATO against a Federal Court ruling last year, in a case it lost against SNF Australia, was a “game changer”.

“This decision has now cast significant doubt on the ATO’s long-held practice of using profitability, in isolation from other commercial factors, to determine the legitimacy of arm’s length pricing,” said Craig.

Transfer pricing is the price that is assumed to have been charged by one part of a company for products and services it provides to another part of the same company, in order to calculate each division’s profit and loss separately.

In June 2010, Justice John Middleton of the Federal Court ruled that SNF Australia, a domestic subsidiary distributor for the French chemicals group SNF Floerger, had failed to pay income tax between 1998 and 2004 because it was poorly run, rejecting an argument by the ATO that it was artificially inflating prices.

The ATO launched proceedings against SNF Australia after it failed to pay any income tax between 1998 and 2004 due to a series of trading losses. This was despite SNF Floerger boasting profits of around 7.5 per cent during that period.

SNF Australia argued that it incurred a trading loss during the review period due to a combination of intense competition, poor management, excessive stock levels and a series of bad debts.

The ATO countered that the company was

in fact “a successful and profitable entity during the relevant period”, enjoying strong annual sales growth in Australia. It also argued that despite a strong performance in the Australian market and the fact that SNF Australia received significant equity subscriptions and loans from its parent company, it failed to record any profit.

Justice Middleton rejected this argument, with the ATO appealing against this decision to a full-bench of the Federal Court. The full-bench unanimously rejected the ATO’s appeal.

“ultimately, the result in this case turned on the fact that SNF’s evidence was better than the ATO’s,” said Craig. “The company was able to show that its purchase prices were below those paid by independent companies because it had the evidence to show that independent distributors operating outside Australia were paying comparable prices.”

The ruling is a significant blow to the ATO.last year it was granted extra funding to

enforce transfer pricing laws on companies trading over $250 million worth of goods per annum. It also recruited around 60 extra staff to focus solely on transfer pricing issues.

Middletons successfully acted for SNF Australia on both Federal Court judgments.

“This is a commonsense outcome to a very protracted case,” said Middletons tax partner Philip Diviny. “It provides welcome relief to non-residents investing into Australia that the transfer pricing provisions will be interpreted commercially by Australian courts.”

A Federal Court ruling has tax lawyers salivating at the prospect of more work as the application of transfer pricing rules is now open to conjecture and uncertainty

Transfer pricing in flux

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indepth

10 l aw y e r s w e e k ly 2 4 j u n e 2 011 www.lawyersweekly.com.au

The Gillard Government’s temporary ban on the export of live cattle has strengthened calls for a permanent prohibition, writes Briana Everett, while also exposing cattle producers to potential claims for damages

The Federal Government’s decision this month to impose a temporary ban on the live export of cattle has received harsh criticism from members of the

livestock industry as well as animal rights groups.

When the Minister for Agriculture, Fisheries and Forestry, Senator Joe Ludwig, announced on 8 June that the Government had suspended the export of live cattle to Indonesia, animal rights groups labelled the move as a band-aid solution and called for the imposition of a permanent ban, given the inadequacy of existing regulations to ensure the humane treatment of animals.

However, while such groups claim the Government has not gone far enough, cattle producers and exporters maintain that the Government’s decision has and will continue to severely damage their business.

According to animal protection institute Voiceless, the Government’s temporary ban is “a stop-gap measure without any long term solution” and does not go far enough to compensate for the inadequacy of the current laws regulating animal welfare and the export of live cattle.

“Indonesia does have animal welfare laws but they’re not effective,” explained Voiceless general counsel Ruth Hatten. “As far as I am aware, an Animal Welfare Act has been drafted but there are no regulations. There is no capacity to enforce those laws and that’s one of the hurdles.”

Currently, both Australia and Indonesia are signatories to the World Organisation for Animal Health, which claims to be the “international reference organisation for animal health” providing guidelines concerning the slaughter of animals by signatory nations.

However, according to Voiceless chief executive officer Dana Campbell, until now, adherence to these welfare standards has been occurring on a voluntary basis between trading partners simply because its “good business for

Australia” and “good business for Indonesia” to comply.

“There is nothing legally enforceable about the arrangement at all,” said Campbell. “That’s the basis on which Australia has said they’re suspending exports – because Indonesia is not complying with those particular rules which we’ve all agreed to follow, even though they’re only guidelines.”

According to Campbell, Voiceless believes there is no humane way to transport and deal with the live export of animals anywhere and, as a result, it does not support live export in any form.

Voiceless also believes that the fact the livestock industry – Meat and Livestock Australia and LiveCorp – has known about the inhumane treatment of cattle in Indonesia for more than a decade is another good reason to implement a permanent ban.

“Meat and Livestock Australia and LiveCorp have known, from what I understand, as early as 2000 that cattle exported to Indonesia are being inhumanely slaughtered,” said Hatten. “Voiceless does not have faith in the industry’s recommendations – that the live export of cattle to Indonesia be restricted to accredited abattoirs – will work because it relies on industry improving the treatment of animals, which they have failed to do on a number of occasions.”

In contrast, Senator Ludwig’s statement that trade to Indonesia will recommence when the Government establishes “sufficient safeguards” has received strong support from cattle producers and exporters who are facing huge financial repercussions as a result of the ban and are calling for the resumption of trade to be fast-tracked.

In addition, according to McCullough Robertson partner David Downie, Australian cattle producers could face further financial pain

if claims for damages flowing from breaches of contract are made against them. He claims ramifications of the ban may include action against suppliers who are no longer able to meet the terms of some contracts.

“Cattle suppliers may find themselves the subject of damages claims from a number of interests along the supply chain, including customers, transport companies, shipping and even the abattoirs,” said Downie. “The scary thing for cattle producers is that damages claims are compensatory in nature and don’t necessarily relate to profit that would have been made.”

According to Downie, it is unlikely that any compensation currently being considered will take into account the ongoing impacts and potential for huge costs that may come from lawsuits - many of which may occur long after trade resumes.

“There will be many business operators who won’t know for some time how badly they have been exposed by this decision, as it could take them some time to go through contracts and determine a course of action,” warned Downie. LW

no winners with interim ban

“As far as I am aware, an Animal Welfare Act has been drafted but there are no regulations. There is no capacity to enforce those laws and that’s one of the hurdles.”

VoIceLess generAL counseL, ruTh hATTen

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indepth


Australia is no closer to resolving its policy crisis over asylum seekers. On the back of World Refugee Day celebrations, two refugees-turned-lawyers add some perspective to the debate. By Claire Chaffey

right to a fair go

When Jose Cruz was just eight years old, he thought the sound of gunfire and bombs exploding was normal. The fact his neighbours

were kidnapped and tortured, before being rescued and fleeing to Canada, was not particularly unusual for someone who had lived most of his life in the shadow of civil war.

But in 1987, seven years after the civil war in Central America’s El Salvador began, Cruz’s parents saw there was no future for them or their children in the war-torn country and made an offshore refugee application to come to Australia. Two years later, the Cruz family was on a plane bound for Brisbane.

Kot Monoah was also a young boy when civil war forced him and his family of eight to flee Southern Sudan for neighbouring Ethiopia. At just four years of age, Monoah had witnessed unimaginable atrocities such as people in his community being gunned down and dying in explosions as the National Islamic Front descended.

Escalating conflict in Ethiopia forced the family to walk to Kenya – a long and treacherous

journey that many did not survive, and one where hazards like lions and disease were a daily reality. Like thousands of other refugees, they eventually settled in Kakuma Refugee Camp, where they stayed for the next 12 years.

In 2003, Monoah’s life changed when he met an immigration lawyer at Kakuma who assessed his family’s application for refugee status. Not only did this lawyer find Monoah’s family eligible for resettlement in Australia, he also inspired Monoah to pursue a career in law.

“When I could see that this lawyer was able to take his time and assess our case on the facts and merits on humanitarian grounds, I had a feeling that lawyers are people who want to help and who are there to help the underprivileged,” he says. “I felt that if I ever got the opportunity, the law would be a career I would look into.”

In 2004, Monoah was given that chance and he and his family were resettled in Melbourne. Now, seven years later, he is a solicitor with Slater & Gordon.

Cruz, too, became a lawyer and now works as an associate at Brisbane firm Rostron Carlyle.

He says the drive to practise law is directly linked to his background.

“That push to always find justice was always in me, but it’s only now that I ask myself why I am driven to do that. I think it’s because I grew up in a society where justice wasn’t the norm,” he says.

“I felt I needed to do something with my life, because we moved from El Salvador. I was searching for something that would be a really good vehicle for me to be able to fight for good causes.”

Both Cruz and Monoah have made the most of the opportunities afforded them in Australia and, although they understand the difficult situation the Government faces in dealing with the issue of asylum seekers, they urge a more empathetic approach.

“The Government is entitled to have its position and policies, but whether a person is a refugee or an asylum seeker, all those people have a number of issues in their lives,” says Monoah.

“They are looking for opportunities to start afresh in life. We should look at it from the point of view that if we were in those shoes, how would we want to be treated? That is the message.”

Cruz has similar views and says that ordinary Australians can always do more to show the Government that society will not stand for discriminatory policies that, he says, do not reflect the wishes of the majority of Australians.

“There should be a human approach, not a legal approach. If you start from there, you might get better results. Why is it that a mother is willing to put their child into that situation? They’re asking for help. Let’s address it from a human point of view,” he says.

“Refugees are not going away. This is going to be a part of our world. If we want to be leaders in the international community, we have to deal with this issue accordingly, and in a positive way.” LW

Jose Cruz, far left, fled civil war in El Salvador when he was 10 years old. Kot Monoah, left, came to Australia in 2004 as a refugee.

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Recognising excellence, innovation and leadership

within the Australian legal profession

2011 categories include:

Life Achievement Award

Young Gun Award

In-house Lawyer or Team Award

Managing Partner of the Year Award

Deal Maker of the Year Award

The College of Law - Law Student of the Year Award

Practice Manager of the Year Award

Box Breaker Award

Talent Manager of the Year Award

w w w.lawawards .com . au

2011 Awards

KEY DATES:

Nominations open Friday 8 April 2011

Nominations closeFriday 17 June 2011

Winners announcedThursday 4 August 2011

ANNOUNCING

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technologyupdate

Technology is driving client service delivery and internal processes within family law practice.

According to Marsdens Law Group partner Tom Reeve, firms that utilise digital tools will

stay a step ahead of the competition

The efficiency revolution

Technological developments and trends in flexible working arrangements are significantly changing legal process, with lawyers within family law practice

having to cope with large-scale changes to how they operate on a day-to-day basis.

While senior lawyers are comfortable with the traditional loose-leaf resources, younger lawyers do a large proportion of their research work far more intuitively, utilising the online tools they used throughout their legal studies.

This deviation from traditional practice, driven by technology and environment, has forced change within legal firms – ours being no exception. These changes are motivated by a desire to stay one step ahead of the competition and address future challenges proactively.

Doing your research The world is in the throes of a dramatic change as the business environment becomes increasingly “digitised”, and by no means can

the legal industry excuse itself from this tech - nological revolution. The efficiency benefits of technology are well documented – the greatest advantage lies in reducing the time lawyers spend on research.

Finding the time to undertake the research component of the job is difficult, yet it is such an important part of providing clients with a quality service that entails surveying the topic area, getting to a selection of relevant material and then confidently identifying the salient information as quickly as possible in order to get on to the work of advising the client.

Striving towards a more efficient research process, while maintaining the utmost confi-dence in one’s position, is a constant balance of aspiration and prudence.

Prior to October last year, Marsdens’ research was primarily conducted across a number of hard-copy, loose-leaf and online sources. However, we could see the range of available resources and uses were resulting in an

inconsistent approach to research. There was also the logistical inconvenience of trying to master many varying research platforms and websites, keeping track of login details and finding what research had been done and saved where.

Although we had been using online research tools for many years, these earlier incarnations took too much time to become familiar with, and newer online practical guidance tools piqued our interest.

Digital tool kit Software such as LexisNexis* Practical Guidance – which we trialled – provides a simple bridge from paper-based to online databases for those too time-challenged or “set in their ways” to make the switch.

We found these tools useful as a first step in a lawyer’s research, by providing an initial top-level, “compass bearing” exercise to direct investigation. Then, additional structure and

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technologyupdate

We believe [technology adoption] is an important enabler in offering clients a more efficient yet affordable legal service”

The efficiency revolution

context can be provided through practice area overviews, authored guidance notes and checklists.

A telling example of the growing influence of technology in the industry is the ability to access online tools “on the go” via mobile devices such as the Apple iPad. If a case comes to mind in court requiring the quick recall of facts or arguments, the information can be located easily and quickly using the iPad.

The ability, if necessary, to react to developments in court in this way can offer a significant advantage to clients. While lawyers always strive to be well prepared, situations like this are a business reality and one where online

tools can offer a real benefit. Although this scenario may not occur regularly, if it offers a competitive edge in just one case every month, it’s worth it.

Blazing the techno trail Marsdens’ adoption of an online practical guidance tool and the move to an increasingly digital research function was needs-driven. We had to maintain our service commitment to clients and to adapt to the way our younger lawyers – the future of the firm – work most effectively.

Marsdens has always strived to be among the industry leaders in terms of technology adoption.

We believe it is an important enabler in offering clients a more efficient yet affordable legal service. However, collectively, the industry takes a more cautious approach than others and we’re still a long way behind where we should be.

While change is gradual, as the next generation of lawyers emerges, it is firms with the courage to blaze the trail in adopting new technologies that will be the industry’s leaders of tomorrow. LW

* Lawyers Weekly is published by LexisNexis. Tom Reeve is the partner in charge of family law and immigration at Marsdens Law Group. The firm has 130 staff across four offices in NSW.

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coverstory

Australia’s expanding charitable sector is set to undergo major reform. But will these changes save an industry bound by bureaucracy? Briana Everett investigates


Cutting the red tape

In the 2011/12 federal budget, the Gillard Government revealed it would introduce a number of reforms impacting the nation’s third sector – charities and not-for-profit (NFP) organisations – aimed at providing consistency amid a

regulatory maze and reducing the red tape that has had a stranglehold on the industry for decades.

With charities and not-for-profits becoming increasingly significant players in the Australian economy, the current regulatory framework is failing to meet the needs of this sector – one that received $25.5 billion in direct funding from the Federal Government in 2006-07 and $3.3 billion of total quantifiable Commonwealth taxation expenditures in 2010-11.

But while the Government has announced its grand plan to remove the complexity within the third sector, NFP lawyers aren’t getting excited just yet. Until they see the fine print, some lawyers are concerned that the proposed reforms will have the opposite effect and instead increase the red tape.

a national watchdogIn May, Minister for Human Services and Social Inclusion Tanya Plibersek and Minister for Financial Services and Superannuation Bill Shorten, announced the establishment of a new statutory body to serve as a one-stop-shop for the support and regulation of the NFP sector – a rapidly growing area comprising about 600,000 organisations.

The proposed Australian Charities and Not-for-profits Commission, to operate from 1 July 2012 and to be chaired by former productivity commissioner Robert Fitzgerald AM, will be responsible for determining the legal status of groups seeking charitable, public benevolent institution and other NFP benefits on behalf of Commonwealth agencies.

In its announcement, the Government revealed that the commission will also implement a “report once, use often” framework for charities, provide education and support the sector on technical matters, and establish a public information portal by 1 July 2013. And from 1 July this year, a newly established Implementation Taskforce will consult with the

public, the NFP sector and government agencies on the proposed reporting framework and public information portal.

“The NFP sector provides vital services to many of our most disadvantaged and vulnerable citizens, but the ability of the sector to undertake this work has been impaired by complex regulatory arrangements and unnecessary red tape for far too long,” said Shorten at the time of the announcement.

“We will continue our negotiations with the states and territories on national regulation for the charitable sector, recognising that the greatest reduction in red tape can only be achieved with national co-ordination.”

Much of the concern surrounding the sector’s policy and compliance burdens, and the need for an independent body, stems from the fact that the majority of NFPs operate outside the sector’s regulatory framework, resulting in a lack of supervision.

As a result, the Australian Taxation Office (ATO) has, by default, assumed the role of NFP regulator. However, its role as the sector’s watchdog has attracted criticism due to an alleged conflict of interest between determining charitable status and the role of administering tax concessions.

“Some tasks of the ATO will be transferred to the commission and I think that is a good idea. I think it looks better for some of those decisions to be made somewhere outside the ATO,” says Gilbert + Tobin lawyer Darren Fittler.

“Some tasks of the ATO will be transferred to the commission and

I think that is a good idea. I think it looks better for some of those decisions to be made somewhere outside the ATO”

DArren FITTler, GIlberT + TObIn lAwyerS

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coverstory


Cutting the red tape

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coverstory

“As far as I’m concerned, the jury is out as to whether the

commission is a good thing or not. The Government is committed to doing it, so it’s going to happen. We’ve just got to get ourselves ready for it”

BIll d’ApIce pArTner, MAkInson & d’ApIce lAWyers

In contrast, Makinson & d’Apice partner Bill d’Apice isn’t too concerned about the ATO’s involvement. “The ATO play the role of regulator at the moment and they do a pretty good job,” says d’Apice. “They’re pretty impartial about it. A lot of people might think the tax office is just about getting extra revenue, but they’re pretty good about it.”

In response to the perceived conflict of interest, the Government has revealed that the ATO will immediately begin structurally separating its role of determining charitable status from its role of administering tax concessions for the new commission.

According to a 2011 survey by Makinson & d’Apice Lawyers on the NFP legal landscape, Australian Not-for-Profits Speak, 58 per cent of respondents believe the creation of a national regulator is a positive step.

“I think it’s a fantastic idea. The sector has been crying out for something like this for some time,” says Fittler. “It appears to be a stand-alone body, which I think is important. But it’s being very ambitious… If you include all the unincorporated not-for-profits out there, we’re talking around 700,000 to 800,000 organisations. So it has its work cut out for it before it even starts.”

Although the proposed commission has received support from the sector, some industry members are not yet convinced it will provide the regulatory relief needed. D’Apice agrees that the sector has been looking for a unified approach from the Government for some time, but he is concerned that the commission will only add to the administrative burden of charities.

“As far as I’m concerned, the jury is out as to whether the commission is a good thing or not. The Government is committed to doing it, so it’s going to happen. We’ve just got to get ourselves ready for it,” he says.

The “report once, use often” model of reporting for charities, introduced as part of the Government’s move towards national co-ordination, has been welcomed by the sector, which struggles with duplication and arduous compliance requirements.

“There would be enormous benefit in all governments committing to a policy of ‘report once, use often’, especially in relation to organisational and compliance data requests,” said Uniting Care Australia in its submission to the 2010 Productivity Commission report Contribution of the Not-for-Profit Sector.

While sceptical of the commission’s ability to positively impact the sector, d’Apice is supportive of the suggested model. “I think I’d probably prefer there wasn’t a commission, but if everything the Government says about the commission, and the underlying

philosophy, comes to fruition, then it could be of benefit to the sector – particularly the proposed ‘report once, use often’ idea.”

The lack of information about the commission’s role is also a concern, according to Mills Oakley partner Vera Visevic. “We know very little about it,” says Visevic. “Most of us just don’t know what exactly it’s going to do from day one.”

The case for consistencyGillard’s reform agenda for the sector includes another attempt to introduce a statutory definition of “charity”, which is something the Federal Government failed to achieve in 2001. In the past decade, the Government has introduced five reviews in relation to the regulation and taxation of the NFP sector – including a 2001 inquiry into the definition of charities and related organisations, which was ultimately unsuccessful.

“The Government tried in 2001 and completely failed,” says Visevic. “They’re having another go, and I admire them for that, but it’s a case of ‘wait and see’ as to how it all works.”

Under the new reforms, the Government is proposing that the statutory definition of “charity” will apply across all Commonwealth agencies from 1 July 2013.

“The current definition of ‘charity’ is based on over 400 years of common law and is complex, inconsistent between Australian jurisdictions, outdated and creates considerable uncertainty for the sector,” said Shorten last month.

With widespread calls for a standardised approach to the sector’s laws and regulations, the case for a statutory definition has been put forward as a means of streamlining the laws and providing consistency across the country. With 182 pieces of legislation, the sector must deal with arduous reporting obligations. Despite this, however, industry members doubt whether a statutory definition is necessary.

“I do not think there is a need for a statutory definition,” says d’Apice. “I think it’s fair to say there have been a lot of cases that consider these issues over the years. There’s a relatively clear idea, in my mind anyway, as to what is or what is not a charity.”

Visevic concurs, saying that those who have practised in the area have a good understanding of what a charity is, based on common law. “How do you create a statutory definition that doesn’t erode what the common law says? How do they fit together?” she asks.

Fittler points out that while a statutory definition may be helpful, the concept of what is charitable and what is a charitable purpose changes as society changes, meaning arriving at a definition will be a challenge.

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coverstory

“How do you create a statutory definition

that doesn’t erode what the common law says? How do they fit together?”

Vera ViseVic, partner, Mills Oakley

“I think it will be a good baseline to have. Unifying the way in which all Commonwealth departments view charities is helpful. I would like to see state and local governments also do the same and adopt a standard approach,” he says.

“I’d like to see the Government make charitable fundraising uniform or maybe – which I don’t think will happen – the states giving up the power to the Commonwealth and letting it regulate fundraising. I’d like to see nationalisation.”

In addition to the establishment of a commission and a new definition of charity, the Government has also announced it will change the use of tax concessions by businesses run by NFP entities.

Under the reforms – which will only affect new unrelated commercial activities that commence after 10 May 2011 – NFP entities will pay income tax on profits from their unrelated commercial activities that are not directed back to their altruistic purpose and they will not be able to use input tax concessions, such as FBT and GST concessions, for their unrelated commercial activities.

“It is important that charities use their tax concessions only to assist disadvantaged people and not for unrelated commercial activities. The Government’s reforms will encourage charities to direct profits generated by unrelated commercial activities back to their charity’s altruistic purposes,” said Shorten.

room for improvementRegardless of whether these wide-ranging reforms bring the consistency and clarity the sector has been crying out for, the transformation will certainly lead to more work for lawyers as NFP organisations approach specialist third sector lawyers to help them decipher the new regulations and to ensure their organisation complies with the new framework.

“Because the ATO and this new entity are going to be a little more proactive in regulating, more organisations are now thinking, ‘OK, we’ve been coasting along and think we’re OK, but we might need to get someone to look at our activities, our constitution … see what we’re up to and give us an audit before the big audit’,” says Fittler.

“I am seeing an increased awareness in the NFP sector of the fact that it ought to be complying with various obligations. Even though I haven’t been asked explicitly yet to give a regulatory or legal impact assessment on anyone’s activities, it’s likely.”

According to d’Apice, whose firm has serviced the charities and NFP sector for about 150 years, the increased regulation of the charitable sector is leading to a greater need for specialist advice – something the legal industry still fails to adequately provide.

An area of improvement identified by the Makinson & d’Apice 2011 survey is the relationship between charitable and NFP organisations and law firms.

“I think the relationship is weak because of a lack of lawyers’ skills in the particular area. There is a lot to be gained by going to those who are skilled in that particular area, rather than just going to a lawyer who’s on the board,” says d’Apice.

“There are a number of larger law firms that might have made a commitment to pro bono work, which is very admirable. However, in the exercising of that pro bono advice, work is given to junior lawyers. Essentially, there’s a lack of empathy with NFP organisations. Firms are very generous in providing those services, but there may be an element of weakness in those relationships.” lW

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Flexible work opportunities are scarce for those re-entering theworkforce or changing jobs – but chances are better for existingemployees. Briana Everett reports


careercounsel

Bargaining position

of millenials (aged 21-35)

who volunteer are satisfi ed

with their career

progression, compared with

21% who rarely or never

volunteer

of millenials who frequently

participate in their company’s

volunteer activities rate

their corporate culture as

very positive, compared with

28% who rarely or never

volunteer

37 %

56 %

SOURCE: 2011 DELOITTE VOLUNTEER IMPACT SURVEY

AS MORE lawyers begin to demand a work/life balance and fl exible work structures, law fi rms and organisations have had to demonstrate their willingness to accommodate requests for part-time or work-from-home arrangements.

While it’s now more common for fi rms to allow fl exible work for existing employees, this fl exibility does not always apply to lawyers seeking work with a new employer or those attempting to re-enter the legal profession after an extended period of leave.

In many cases, a “part-time” arrangement for new employees will entail at least three to four days per week, with two-day part-time arrangements in short supply.

“I found it quite hard to fi nd a part-time role that suited me and my experience … some fi rms had a minimum four-day-per-week part-time work structure,” says Aussie Home Loans corporate counsel Jennie Cadman, who recently returned to work part-time after a two-year absence due to family commitments.

“If I had been prepared to do four days or even full-time, I don’t think it would have been as hard, even having had two years off… One recruiter said that if I could commit to four days it would be easier for me to fi nd somewhere.”

Cadman, who eventually took a part-time role with Aussie Home Loans after failing to fi nd a manageable role in private practice, notes that much of the “part-time” work on offer was fi ve days’ worth of work condensed into four days.

“I think that it is easier being at a fi rm or company and negotiating how many days a week you will work after coming back from maternity leave, rather than trying to fi nd a part-time job when your foot is not already in the door,” she says.

Taylor Root consultants Brian Rollo and Matt Harris agree, saying it is much easier for a lawyer to negotiate part-time work arrangements with their existing employer if they have been working there for some time.

“You have established a profi le, reputation and credibility through your full-time work and are more likely to be accommodated by the business as a result,” says Rollo.

“It can be interpreted as ‘earning’ the right to go part-time internally but, really, it’s simply a case of employers wanting to keep people happy if they have demonstrated they are worth it.”

Due to the need to accommodate existing staff, adds Rollo, businesses do not tend to recruit part-time lawyers externally.

“The more conditions you attach to your availability for work, the more diffi cult it becomes for new employers to accommodate those conditions and, therefore, the less attractive you become as a candidate,” he says.

“Most lawyers realise the diffi culties in moving to another part-time role with a new business and are usually content to work with the part-time arrangements they have with their current employer. The assumption seems to be that it’s better the part-time devil you know.”

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ANGELINA JOLIE is one busy lady.Now that she has helped to shape

boyfriend Brad Pitt’s makeover from a fresh-faced heart-throb to a hirsute intellectual with glasses that any self-serving academic would sever a tweed jacket arm-patch for, she has also found the time to assist an American pro bono program.

The New York Daily News reports that Jolie is funding a not-for-profit organisation called Kids in Need of Defense, which enlists pro bono lawyers to act for underage illegal immigrants in the United States who are facing deportation.

According to the Daily News, in New York alone, the program has helped more than 500 children access legal represen-tation when facing an immigration judge.

“I can’t imagine having to go through that process without someone there to help you understand what’s going on,” said Bridget Brown, a lawyer with Manhattan firm Boies, Schiller & Flexner.

While Folklaw will always remember Jolie fondly from

Hackers and Girl, Interrupted, shockers such as Mr & Mrs Smith means the actress

has fallen off our critical radar recently.

Her pro bono work, as well as her continued commitment

to humanitarian causes, means she has finally squared the ledger after the crime against cinematography that was Lara Croft Tomb Raider: The Cradle of Life in 2003.

folklaw

22 l aw y e r s w e e k ly 2 4 J u n e 2 011 www.lawyersweekly.com.au

Juror courts cute prosecutor

R E A D T H E L AT E S T F O L K L A W O N L I N E www.lawyersweekly.com.au/folklaw

SERVING ON a jury doesn’t have to be as boring as everyone says – a fact demonstrated by an American juror who tried to get the attention of one courtroom “cutie”.

As the ABA Journal reports, a juror serving on a manslaughter case in New York’s highest court wrote a note to the judge during jury deliberations, asking for the opportunity to thank both sides for the privilege of serving as a juror.

Included in the female juror’s note was mention of her marriage break-up and a request for the phone number of one of the male prosecutors she thought was a “cutie”.

In what would have been a fairly awkward moment, the judge of the New York Court of Appeals had to sit down in the presence of the lawyers and explain to the juror that the message was

inappropriate and to obtain her assurances that, as a juror, she would be fair to both sides.

It was then questioned whether the juror’s note provided grounds for overturning the defendant’s conviction for manslaughter.

Thankfully for the rest of the jury members, who were no doubt a little annoyed that their fellow juror’s love letter could completely waste their time, the conviction was upheld.

The judge’s opinion stated, “Defendant argues in substance that the juror’s note and her comments during the dialogue in chambers show that the juror had an eccentric personality, but eccentrics are not barred from serving juries”.

Folklaw thinks the juror should stick to eHarmony and hopes she’ll find someone to match her “eccentric personality”.

Ange’s pro bono cause comes to kids’ aid

Legal crusader turns law breakerAN AMERICAN lawyer has been accused of breaking into a house with his client.

The International Business Times reports that San Diego lawyer Michael Pines pleaded not guilty in early June to charges of vandalism and other misdemeanours after an incident in October 2010.

It is alleged that Pines and his 72-year-old client were caught by police while breaking a window and attempting to enter the client’s foreclosed home.

In January this year, Pines told the Chicago Tribune that he has broken into homes at least six times on behalf of clients, arguing that it is sometimes necessary to violate the law in order to force courts to examine how banks are doing business with distressed homeowners.

On his website for The Pines Foundation, which was set up to facilitate “prison dog programs and children”, Pines somewhat curiously claims that “his life and purpose of the foundation had to change”, and that he is now “attacked by many for standing up to the banks”.

He also lists a number of people he believes are involved in a criminal conspiracy against him.

While Folklaw is unsure whether Robin Hood had any legal training before bunking down in Sherwood Forest, we are sure he would like the cut of Pines’s jib.

At the very least he certainly takes the notion, espoused by lawyers the world over, of “putting the client first” to a whole new level.

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Documents

Lawyers Weekly, June 24, 2011