06 February 2017
PRESIDENT, LAW SOCIETY OF NSW
OPENING OF LAW TERM DINNER
WEDNESDAY 1 FEBRUARY 2017
Thank you ladies and gentlemen. Good evening.
I would like to begin by acknowledging the Gadigal people of the Eora nation on whose land we gather today, and to pay my respects to their elders, past and present, to the Aboriginal people here tonight, and to the Aboriginal youth in whose hands is held our nation's hope for a truly reconciled future.
I also acknowledge our special guests including Chief Justice Tom Bathurst, Attorney General Mark Speakman SC - congratulations on your appointment Attorney - members of the judiciary, parliamentarians, clergy, colleagues, distinguished guests.
It has become a tradition that the new President of the Law Society plays "show and tell" at this function. I tell you a little about myself and show you where the Society is up to and what is on our agenda for the coming year.
I was born in Brisbane, but my family - Mum and Dad and my sisters Meredith and Kathryn (here tonight with Dad, my niece Victoria and my beloved brother-in-law, Steve) - moved to Melbourne when I was not even two. Dad's work as a civil engineer brought us to Sydney when I was in first class and we settled on the North Shore, in Wahroonga. I went to PLC Ingleholme then Pymble for high school, followed by Macquarie University in 1980 as an arts-law student.
But it was only thwarted ambition that led me to the law. I was always going to be an artist. I had been accepted on my portfolio into the school run by the rather famous Ms Shillito in Grosvenor Street Sydney that specialised in fine arts and graphic design. But a few days before I was due to start in March 1980, I got a phone call: "Ms Shillito has died and we are closing the school."
I was devastated. What was I going to do? Graham Turnbull, now of Senior Counsel, was a good friend, just a few years older, and was studying law at the time. He may not be aware of this, but it was entirely his fault I became a lawyer! I'd always been inspired by our discussions about the law and how it interacted with social justice, so I decided that I may as well take advantage of my HSC marks and study law.
I still wasn't thinking about becoming a lawyer - I was doing the full quota of arts subjects at Macquarie Uni studying Mass Communications, making films, getting my cartoons published and doing some acting for a bit of pocket money - but the more I studied law the more I came to love it.
And by the time I finished my degree, the law had won. Mum and Dad were delighted: I'm pretty sure they were quietly terrified they'd be supporting an impoverished artist for the rest of their lives. Dad's survived to a healthy 91 years, although he said last night: "at my age, even buying green bananas is optimistic"! I'm only sorry my late mother is no longer with us, other than in our hearts.
After university, I tested the water with a three-week stint in a large Sydney law firm, but I really wanted to do criminal law, so I took up an opportunity for an interview with Marsdens.
The firm's managing partner, John Adam, noticed from my CV that I'd grown up on the North Shore and asked if I had any football allegiances. Unbeknownst to me, he'd been Captain of the North Sydney Bears. "I know I'm supposed to go for the Bears,'' I told him, "but they always lose." It could have been disastrous, but fortunately he thought I knew and was making a hilarious joke. I got the job anyway - becoming only the second female solicitor employed by the firm. But a lesson for new players: do your research before going to a job interview!
I stayed for three years and loved it. John Adam together with the Marsden brothers, John and Jim, gave me a broad grounding, but I gravitated to criminal law. Marsdens taught me some important basic lessons that have stayed with me: love your files, be frank and fearless in your fight for your clients, give away the files that make your gut churn - and be wary of new clients who arrive with big boxes of papers.
The senior partner was that mercurial ball of energy - and the Law Society's 1991-92 President - John Marsden. It was through him that I was introduced to the NSW Council for Civil Liberties in the late 1980s, and at his urging that I became involved with NSW Young Lawyers in about 1993. I was first elected to the Council of the Law Society of NSW in 1996 and have served on the Council almost continuously since then. Despite his very particular style, which drove me to distraction from time to time, I was very fond of him. I remain close to Jim Marsden and John Adam to this day and I'm delighted that they are here tonight.
After some time in a small suburban partnership and running my own practice, some 15 years into my career, I was working for Wilshire Webb in Kent Street Sydney - to whom I remain indebted for introducing me to my next professional love, Environmental Planning and Development law. Anthony Hudson, Kendall Webber and Lucy Motta are here tonight. I was living in Balmain at the time. But on a visit to the Central Coast, I noticed a little house for sale at Avoca Beach. I had holidayed there as a teenager and I thought "I love Avoca!" and I couldn't afford the Balmain prices. So. 5 weeks later, there I was working in Kent Street Sydney and living in Avoca Beach. Great. But soon after my move, l got an offer I couldn't refuse. I was serving on the Law Society Council with Rod Dawson, a fine solicitor who was at that time a partner in a well-regarded Central Coast firm, PJ Donnellan and Co. Rod pulled me aside one day and said: "You're living on the Central Coast now aren't you? Are you interested in working in Gosford?" Well. I'm still there after 16 years.
This seems like a good moment to thank a few people - the founder of PJ Donnellan & Co and a man for whom I have enormous regard, Patrick Donnellan; my clever and infinitely patient partner, Robert Byrd, and our exceptionally loyal and dedicated staff. We're a small and close-knit firm and I'm delighted to see that everyone's here tonight.
Someone else I must thank is my husband Jiri Kripac, as well as his kids for welcoming me into their family. His daughters Michaela and Lenka are here tonight with Lenka's husband James; his son Daniel is in London. Jiri is an artist, jazz musician and composer who plays cornet (and sometimes allows me to sit in as a vocalist in his band). You will have heard them playing earlier this evening. He supports me not only in my life as a lawyer, but also in my own artistic endeavours - as a director, actor and playwright and, until this year, Vice President of the 5 Lands Walk, a unique multicultural festival on the Central Coast which is now in its 11th year. Some of my co-founders are here tonight and I'm lucky to call them dear friends.
My current creative project is a play I'm writing about first contact between the British and Aboriginal people on the Central Coast. I became fascinated by a story told to me by Gavi Duncan, from whom you heard earlier, who is a descendant of the people of that country. A few weeks after landing in Port Jackson, Governor Phillip's men sailed up the coast looking for fresh water. His sailors happened upon two Aboriginal women in a canoe near Woy Woy "singing in the fish". Mesmerised by the music, the men rowed closer, but upon seeing the sailors with their pale skin and strange garb, the women were terrified, thinking they were ancestor spirits. They leapt overboard and swam straight to shore in a strange over-arm "freestyle" stroke. They swam so fast the men thought them mermaids - the first introduction to white people of the Australian Crawl. I'm fascinated that each thought the other to be supernatural beings. An interesting start!
I have always believed that it is important to "feed the muse" if you have one, and to keep a balance in your life. I have a passion for the arts and ocean sports. But I also love the law - and am honoured to have been given the opportunity to lead the solicitors' branch of the profession in 2017. It is a role that carries enormous responsibility - and one that I will embrace with all my heart.
The Law Society of NSW
With 30,000 members, the Law Society is the largest voluntary legal professional association in the world. It is crucial that the independence of the profession and the protection of the bedrock values and ethical standards, fundamental to the Rule of Law, are reflected and perpetuated through a strong and effective Law Society. We are in a strong position and this is to the benefit of the profession and the community. Carrying out our statutory and regulatory responsibilities, subject to the checks and balances afforded by our system of co-regulation, the Society delivers low cost and highly effective protection for the community. The effectiveness of this model is due in no small part to the professionalism and collaborative ethos of the Office of the Legal Services Commission.
We are proud that since the commencement of voluntary membership in 2004, some 92% of the private profession have chosen to be members. We now reach out to all segments of the profession: in-house lawyers, whether corporate or government, as well as private practitioners. We have formidable reach across regional and rural NSW, as well as in the CBD. Our legal policy output is highly regarded by parliamentarians, the business community, the media and other stakeholders.
We're also in great financial shape, thanks in no small measure to our COO, Kenny Tickle. And Lawcover has risen from the ashes of HIH. Its steady premiums and the payment of rebates have been a big plus for the solicitors of New South Wales.
The way forward
In the 30-plus years since I was admitted to practice, our profession has grown and changed. In 1985, there were about 8,300 solicitors in NSW - now there are 30,000. Women made up just 15% of the profession and it now looks like for the first time there will be more women solicitors than men by mid-year 2017.
With Susan Kiefel, the first female Chief Justice of the High Court being sworn in this week and a new female Premier of NSW, many women now feel that the law has finally recognised them as equal partners.
Much of the credit for the current health of the Law Society can be attributed to our current chief executive, Michael Tidball, who has now been in the job for over 10 years. I also acknowledge the advances and initiatives made by our immediate past president, Gary Ulman. Gary was a firm Collingwood supporter - and so I am I. If being a Collingwood supporter is a pre-requisite for Presidency of the Law Society - I am happy to perpetuate it!
Gary was a leader who looked to the past as well as the future. He commissioned a history of the Society that was published last year. It reminded us of the role the Society has played in the economic, social and cultural development of NSW and Australia. The Law Society is 175 years old this year - having first been formed in 1842 during a feud with Governor George Gipps - and we'll be celebrating that anniversary during the year.
Looking to the future, Gary established FLIP, the Future of Law and Innovation in the Profession project. Its report will be available soon, and there will be discussion with members, government and the wider community before implementation of key recommendations. On Gary's watch, the Society also furthered our Advancement of Women program, launched our Diversity and Inclusion committee and led the campaign on proposed changes to CTP green slip insurance in NSW.
I will be carrying on that important work. The year ahead also includes the commencement of a new three-year strategic plan to strengthen and expand our member services with a focus on continuing professional development. We'll also renew our focus on the Law Society's relationships with the regions and regional practitioners.
Priorities for 2017
There are also three major policy areas dear to me that I will address in the coming year. They are: addressing the erosion of the rule of law, finding a fairer way for the law to deal with people seeking asylum in Australia and closing the justice gap for Aboriginal and Torres Strait Islander peoples. All of these, as it happens, follow the theme of inclusivity the Chief Justice spoke of tonight.
Erosion of the rule of law
There has been a steady erosion of the rule of law and civil liberties since 9/11. Legislative responses to the new terrorist threat came with promises of sunset clauses and assurances that provisions at that time seen as draconian would be wound back with time. However, these laws remain in place and new ones have been introduced: laws allowing the right to question and detain without charge, to detain beyond sentence, laws which erode the right to silence and those which demand data retention.
In a pervasive climate of fear, our frog nation has quietly slipped into the pot and the temperature is bit by bit being turned up. Governments have taken steps no Australian politician in the past would have dreamt of - with barely a whimper of public protest.
As pointed out by the Chief Justice in his speech to this dinner last year, there has been a good number of legislative changes which limit the power and discretion of the judiciary. An example is mandatory sentencing. Our constitution is not designed to protect human rights. It was designed to divide power between the Commonwealth and the states. While the High Court has affirmed that mandatory sentencing is not beyond the limits of parliamentary power, allowing judges to actually do their job is not beyond the wisdom of parliament.
In the 1880s, the NSW Parliament had to repeal mandatory sentencing laws because the public objected. They didn't like the fact judges had been forced into passing unfair sentences because their discretion - to judge each case on its merits - had been removed. Here is a prediction: mandatory sentencing will prove counter-productive as juries will be reluctant - as they have been historically - to convict: purely because the punishment will not fit the crime.
The rule of law is fundamental to a free and prosperous nation and the fundamental liberties, rights sand principles it embodies are worth restoring and respecting.
Towards the fair treatment of asylum seekers
The rule of law has also been a casualty of the asylum seekers debate.
Australia must of course keep its borders safe. The public will not tolerate people dying at sea, but neither should it tolerate them dying in detention. Fear must not be allowed to make us turn a blind eye to human rights breaches in our offshore detention facilities. We have to find a fairer way. We are detaining people without charge against their will in a confined place. Certainly, progress has made by the current government, but it is evident that deals with other nations can be uncertain so it is important to keep agitating until we come up with a fairer system. The Society will establish an expert panel tasked with finding solutions to this complex human rights dilemma.
My perspective has been somewhat formed by personal experience. My husband, Jiri, came to Australia in 1969 as a refugee from Czechoslovakia. He had been the 1968 Czech national champion - in slot-car racing! This was the year Russian tanks rolled into his country. He and other youths nailed their Communist Party membership cards to the gates of the town hall in protest. Realising his danger, he staged an invitation to a slot-car tournament in Vienna and used the opportunity to gain "assisted passage" to Australia. He stayed in Villawood, then an open halfway house for immigrants - no locked gates, no guards, no razor wire. It's a very different place today.
The plight of people fleeing their homes because of so-called 'push factors' - ie war, civil war, natural disasters and persecution is something we cannot ignore. As lawyers, we are duty bound to call out injustice when we see it. We defend the rights of all. If not the legal profession, then who?
The Indigenous justice gap
But the most glaring failure of our justice system remains the over-representation of Aboriginal and Torres Strait Islander people in our gaols.
Indigenous people represent less than 3% of our nation yet about 30% of people in prison. The statistics are even worse for women and juveniles in detention.
Indigenous people are denied bail at higher rates than other people and tend to be gaoled for short periods for minor offences and fine default.
The problem is complicated, but my own experience tells there is bias at work, whether unconscious or conscious. I have seen behaviour by young Aboriginal people that is treated as criminal when if it was a bunch of blue-eyed boys in Bronte, it would be regarded as mere "larrikinism" or "skylarking".
These young Aboriginal people can get trapped in the system and never get out. They are part of a huge problem: across NSW recidivism rates are appalling - about 40% of all NSW inmates are back in gaol within two years of their release.
Gaol should not be normalised - it's almost seen as a rite of passage for young Indigenous people. I recently heard Stan Grant mention a statistic: an Indigenous child is more likely to be locked up in prison than they are to finish high school. We must work to reverse that.
As the Chief Justice pointed out earlier tonight, the justice gap isn't confined to criminal law either. Access to justice for Aboriginal and Torres Strait Islander people is difficult in civil and family law too. And I've seen how soft prejudice can play out in planning and development law.
To address this justice gap, we'll explore all the options: justice reinvestment, restorative justice in Indigenous communities and culturally appropriate legal advice and courts in rural, regional and remote areas. This will require close consultation, involvement and empowerment of Aboriginal communities.
We will also be working on the ALRC's inquiry into Indigenous incarceration.
The Law Society's policy committees are our engine-rooms and there are some significant reforms afoot.
2017 sees the establishment of our new Public Law Committee to address issues arising from constitutional and administrative law; agencies with inquisitorial and other coercive powers; the rule of law and separation of powers. Another new committee is the Privacy and Communications Committee which will look at policy and practice issues in that sphere, and will play an important role following publication of the FLIP report.
We have also made some changes to committee structures to better deal with Children's Legal Issues and added an emphasis on Capacity to the work of the Elder Law and Succession committee.
The work of our volunteer committees - supported by the Society's highly skilled policy lawyers - will be essential in framing the direction of the Law Society this year and into the future.
One immediate focus is the Government's latest tranche of proposed CTP reforms. The Law Society understands that CTP/Greenslip prices are an expensive item but our research makes it clear that the public wants a system of compensation that protects injured people and their families.
We will also be contributing to law reform reviews of the Guardianship Act and elder abuse, as well as the NSW government review of the planning system and a new Civil Justice Strategy.
Court delays and legal assistance funding will also be a priority, particularly for family law parenting issues. Presently, legal aid is not available to enforce parenting orders. This is of real concern, since disputes over children can have deadly outcomes.
The closure of country courts is also worrying. Access to justice demands proper resourcing of the courts. Sadly, we have seen too many of our courthouses disappear due to their perceived cost. But if parliament should not be seen as a service that has to pay for itself, neither should the judiciary and courts - after all the judicature is the third leg of government. Having a courthouse in a country town is as important as having an office for the local member. Court closures have a serious effect on local economies. In the long term, access to justice gives value for money.
One lesson from our 175 years of history together with the overseas experience, including in the US, is that lawyers can be a convenient punching bag. We'd do well to remind ourselves that when Shakespeare wrote "the first thing we do, let's sack the Attorney General": no, sorry, that was an "alternative fact. The truth is that Shakespeare wrote "the first thing we do, let's kill all the lawyers". He gave those words to a rebel, intent on assuming power. Shakespeare knew that lawyers are society's bulwark against despotism.
Lawyers should hold their heads high and be proud of this professional heritage. From later this month, we will be unveiling a series of six videos under the theme, "Choose law. Choose the Law Society". The primary video provides a glimpse into the professional lives of five members from diverse backgrounds, while the other five tell more in-depth stories of those same members. They will make any lawyer proud to be a part of the Society.
There is a lot more on the website about what we're doing with social media and e-communications, so get online and have a look!
Charity for 2017
It is a tradition that each year the new President has the opportunity to nominate a charity behind which the Society will put its weight. The Bara Barang Corporation Ltd is the charity I've chosen.
An initiative of the Darkinjung Local Aboriginal Land Council, Bara Barang has the aim of developing and executing key initiatives to improve the lives of Indigenous people on the Central Coast of NSW, an initiative has gained the attention of communities across the State. Bara Barang is located near the Frank Baxter Juvenile Detention Centre at Kariong and, among other things, works with kids in detention.
As well as providing training and employment skills for young people, Bara Barang is engaged in a form of justice reinvestment, seeking to engage with young people and engender pride in their heritage, culture and community. The aim is to prevent them coming into contact with law enforcement and to tackle recidivism. As Bara Barang says:
"We cherish and nurture our youth with knowledge and wisdom through life's future pathways"
To raise funds for Bara Barang I will be initiating two projects that I hope will appeal to the creative and artistic side of the profession.
Just Music will be a song-writing competition for lawyers and law students who are also musicians on the theme of justice, culminating in a fundraising concert for finalists, with funds going to Bara Barang.
Just Art will be an art exhibition on the same theme for visual artists who are lawyers or law students, culminating in an art exhibition with the commission on sales donated to Bara Barang.
It will be a great privilege to serve as President of the Law Society in 2017. I'm honoured to have been elected by my peers to this role. The motto of the Law Society of NSW is "defending the rights of all", and it is my intention that each initiative taken this year under my leadership will serve that goal to the benefit of this honourable profession and the community we serve.
Media Contact: Jacob O'Shaughnessy 02 9926 0288 or 0413 440 699
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