Appointment - Chartered Accountants Australia & NZ Professional Conduct Committee

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I have been appointed to the Professional Conduct Committee of the Chartered Accountants Australia & New Zealand. The term of appointment is 3 years, from 1 August 2018 to 31 July 2021.

Chartered Accountants Australia and New Zealand is a professional body comprised of over 117,000 members. 

The CA ANZ Professional Conduct Committee is required to ensure that appropriate and timely investigations, decisions and referrals are made in relation to complaints made and information provided with respect to the standards of practice and professional conduct of CA ANZ members, non-member practice entities and registered graduates.

Recognition - Doyle's Guide's Leading Commercial Litigation & Dispute Resolution Senior Counsel, 2018

I have again been Recommended in Doyle's Guide to the Australian Legal Profession as a Leading Commercial Litigation & Dispute Resolution Senior Counsel in NSW.

The list details Queens/Senior Counsel practising in commercial litigation, dispute resolution and arbitration matters in the NSW legal market who have been identified by NSW's commercial litigation solicitors for their expertise and abilities in these areas.

See earlier: 2017 Rankings and the 2016 Rankings.

 
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Report - International Bar Leaders’ meetings in Oslo

The International Bar Association's Bar Issues Commission (BIC) supports the interests of the IBA’s member organisations, including arranging events to discuss issues that affect the legal profession globally, and working groups that develop resources and guidelines for bar associations. 

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I attended the recent IBA Bar Leaders’ mid-year meetings in Oslo as a member of the BIC's Regulation Committee. The meetings brought together delegates from around the globe to discuss the latest developments, and thorny issues, affecting the profession of law today.

Running alongside the various committee and taskforce meetings were informative sessions on the Rule of Law under attack: an analysis of the situation in Poland, Hungary, Zambia and Venezuela; the role of Bar Associations in promoting trade in legal services; trends in legal education and lawyer competence; and Brexit and the likely consequences for lawyers and legal practice.

 
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A particular highlight was the keynote address by BIC Officer, Berit Reiss-Andersen, Chair of the Norwegian Nobel Committee, which awards the Nobel Peace Prize. Berit addressed the terms of Alfred Nobel’s will and the intention of the Peace Prize, and explored the relationship between the Peace Prize and the other Nobel Prizes.

Delegates were later hosted to a reception at the Nobel Peace Centre and an exhibition honouring the 2017 winner International Campaign to Abolish Nuclear Weapons (ICAN), a global campaign launched in Melbourne in 2007.

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The meetings ended with an Open Forum, which included presentation of an interim report on the strategic review of the IBA (triggering a lively Q&A) and launch of the IBA’s Diversity Initiative, which will work to promote inclusivity and diversity within the legal profession on a global basis.

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Report - OECD Forum & G20 Business Dialogue in Paris

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With the future of international co-operation very much in question, I was delighted to be invited to join the 2018 OECD Week in Paris, for a series of high level meetings and discussion.  The G20's Business Dialogue held a Joint Task Force Meeting, which I joined as a member of the Integrity & Compliance Taskforce. Since this round of Task Force meetings was being held at the OECD, we also held a joint meeting with BIAC - Business & Industry Advisory Committee to the OECD. Finally, I joined the OECD Forum, which convened some of the leading voices in the global policy-shaping community, through the prism of three central and interconnected themes: Inclusive Growth, Digitalisation and International Co-operation. [For your interest, note that many of the hyperlinks below include webcasts of the particular event or session].

International co-operation: President Macron's address opened the OECD’s annual Ministerial Council Meeting with a call for countries to work harder to ensure that multilateral co-operation effectively addresses today’s global challenges. His speech was timely, although in some measures its message unheeded; shortly afterwards, the United States announced its unilateral decision to impose significant tariffs on European and Canadian trade.  

 

Other sessions on the theme of international co-operation explored new forms of global leadership (New Global Leadership,) and multi-stakeholder “coalitions of the willing” (Firms, Civil Society & Government with Purpose: The Global Deal). Other issues canvassed included those inherently global in nature, such as climate (Safeguarding Our Oceans), and trade (The Faces of Trade).

 

Speaking of trade, the G20 is a vital multilateral platform to address global challenges, including regulation of global value chains, and anti-corruption. Business 20, or B20, is the private sector's voice of the G20 community. It addresses the global challenges and priorities defined by the G20 countries, by building solid consensus amongst business leaders, international organizations and civil society regarding how they should be approached. 

B20’s trademark is the development of consensus based concrete policy proposals from the private sector with the objective of generating more and better jobs, sustained growth and development. The process involves the constitution of taskforces of around 100 business representatives of the entire G20 and invited countries. After a 7-month period of discussions the B20 is ready to submit its policy recommendations to the G20 leaders - which in 2018 will occur in October in Buenos Aires, Argentina. 

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Digitalisation:  the OECD Forum also explored the potential and realisations of companies, start-ups, and individuals (Start-Up Ecosystem), and examined the actions needed to promote quality jobs and well-being in a new world of work (The Future of Work: How?). As policy makers and shapers around the world look to develop the new cognitive and regulatory frameworks to accompany the shift from analogue to digital, the Forum considered the ethical ramifications, (Universal Digital Rights & Digital Inclusion), the implications for the security, society and the economy (Cybersecurity) and the importance of a civic debate on the rise of artificial intelligence.

During OECD Week, the French Data Protection Authority (CNIL) released a fascinating report on the ethical issues raised by the rapid development of digital technologies - how can humans keep the upper hand? This is an issue about which I first wrote for the Judicial Commission of NSW in 2017 (see “Computer Says ‘No’ - automation, algorithms and artificial intelligence in Government decision-making“ published in The Judicial Review). The CNIL report made 6 important policy recommendations intended for both public authorities and civil society:

  1. Fostering education of all players involved in “algorithmic chains” (designers, professionals, citizens) in the subject of ethics;
  2. Making algorithmic systems understandable by strengthening existing rights and organising mediation with users;
  3. Improving the design of algorithmic systems in the interests of human freedom;
  4. Setting up a national platform for auditing algorithms;
  5. Increasing incentives for research on ethical AI and launching a participatory general interest research project;
  6. Strengthening ethics within businesses.

Inclusive Growth: this included panels on seeking tangible ways to address inequalities, through the built environment, (Panel with lunch on Housing), through access to quality education and lifelong learning (Reskilling: How Difficult Is It?), and navigating employment in a disruptive digital environment (Recruiting in a Digital Age). The Forum ventured down less trodden paths, looking at the implications of loneliness for people’s health and the fabric of our societies (Loneliness), and what robots and humans can learn from each other in the age of ‘singularity’ (Singularity). 

The Forum also welcomed a host of authors who shared the insights of their work through a series of “Meet the Author” sessions. One of those was Colm Harmon, Professor of Economics and Head of the School of Economics at the University of Sydney, who led a discussion of what it will take for schools to be able to help students think for themselves, develop a sense of right and wrong, and be sensitive to others’ views as part of the World Class: How to Build a 21st-Century School System session.

The University of Sydney (my alma mater) is a long time knowledge partner with the OECD, so I was delighted to be invited by Professor Harmon to also join a University of Sydney/Sciences Po Roundtable, held in the Château de la Muette during OECD Week. It was wonderful to see these young university students meeting several Australians working at the OECD, including Australian Ambassador to the OECD, Brian Pontifex

 

Appointment - Economic Regulation Authority Arbitral Pool

The Economic Regulation Authority has appointed Dominique Hogan-Doran SC to the pool of arbitrators for disputes involving non-scheme pipelines in Western Australia under the National Gas Rules. Australia is on the cusp of becoming the world's largest liquefied natural gas exporter, having seen investment of more than $200 billion in the past decade. This appointment complements Dominique’s earlier appointment by the Australian Energy Regulator for the remaining States and Territories.

CPD - Banking Executive Accountability Regime

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I was delighted to join the Centre for Law, Markets & Regulation seminar on the new Banking Executive Accountability Regime regime, responding to APRA Chairman Mr Wayne Byres, former Barclays CEO of Mortgages, Mr Steve Weston, and Ms Cris Parker of the Banking & Finance Oath. 

The BEAR legislation passed the Australian Senate on 7 February 2018, and comes into effect on 1 July 2018. The legislation amends the Banking Act 1959 to impose accountability, remuneration, key personnel and notification obligations on authorised deposit-taking institutions. It is intended to make senior bankers more accountable for management decisions, and includes criminal liability amongst its sanctions.

You can download my slide deck presentation here and a transcript of my oral remarks.

Wayne Byre's speech, "Beyond the BEAR necessities" is available on the APRA website.

CPD - Royal Commissions: Strategic Considerations

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The papers for my presentation to the members of the South Australian Bar Association in Adelaide on 20 March 2018 are now available for download: 

Review - International Principles on Conduct for the Legal Profession

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The International Bar Association has launched a review of its International Principles on Conduct for the Legal Profession (2011), as a result of a number of developments in the delivery of legal services. 

Developed for practising lawyers across the globe, the 36-page publication provides lawyers with a framework to carry out their professional duties in a manner consistent with upholding the dignity and respect of the profession in relation to their clients.  The aim, through fostering a climate of understanding about the national and international rules that govern the conduct of lawyers, is that the ideals and integrity of the legal profession will be promoted worldwide.

The IBA International Principles is the 21st century version of a set of ethics for the legal profession first introduced more than 50 years ago, with the precursors to today’s edition as the ‘IBA International Code of Ethics’ (1956 and 1988). The gathering pace of globalisation and increase in cross-border transactions has led to the Code of Ethics being revisited and republished, resulting in the publication in 2011 of the new principles. A thorough process with input from representatives of the legal profession from all continents produced 10 core principles which should be common to all lawyers. 

The 10 core values constituting the IBA International Principles, are:

  1. Independence

    A lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation. A lawyer shall exercise independent, unbiased professional judgment in advising a client, including as to the likelihood of success of the client’s case.

  2. Honesty, integrity and fairness

    A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the lawyer’s clients, the court, colleagues and all those with whom the lawyer comes into professional contact. 

  3. Conflicts of interest

    A lawyer shall not assume a position in which a client’s interests conflict with those of the lawyer, another lawyer in the same firm, or another client, unless otherwise permitted by law, applicable rules of professional conduct, or, if permitted, by client’s authorisation.

  4. Confdentiality/professional secrecy

    A lawyer shall at all times maintain and be afforded protection of confidentiality regarding the affairs of present or former clients, unless otherwise allowed or required by law and/or applicable rules of professional conduct.

  5. Clients’ interest

    A lawyer shall treat client interests as paramount, subject always to there being no conflict with the lawyer’s duties to the court and the interests of justice, to observe the law, and to maintain ethical standards.

  6. Lawyers’ undertaking

    A lawyer shall honour any undertaking given in the course of the lawyer’s practice in a timely manner, until the undertaking is performed, released or excused.

  7. Clients’ freedom

    A lawyer shall respect the freedom of clients to be represented by the lawyer of their choice. Unless prevented by professional conduct rules or by law, a lawyer shall be free to take on or reject a case.

  8. Property of clients and third parties

    A lawyer shall account promptly and faithfully for and prudently hold any property of clients or third parties that comes into the lawyer’s trust, and shall keep it separate from the lawyer’s own property. 

  9. Competence

    A lawyer’s work shall be carried out in a competent and timely manner. A lawyer shall not take on work that the lawyer does not reasonably believe can be carried out in that manner.

  10. Fees

    Lawyers are entitled to a reasonable fee for their work, and shall not charge an unreasonable fee. A lawyer shall not generate unnecessary work. 

Each principle is clearly defined in the booklet and contains expanded commentary on how it could be used as a basis to establish codes of conduct for lawyers within different jurisdictions.

The 2018 review canvasses the following issues:

  1. the impact of growth of non-lawyer providers on the delivery of legal services, particularly through electronic platforms, since many of these are not currently regulated by those responsible for regulating the legal profession;
  2. lawyers' confidentiality (including whether it impedes the public interest (for instance, in money laundering, tax avoidance, lobbying registers)
  3. Diversity and equality in the legal profession
  4. Access to justice and access to legal services 
  5. Professionalism

To access the proposed changes to the IBA International Principles on Conduct for the Legal Profession, please follow this link: http://www.ibanet.org/Document/Default.aspx?DocumentUid=88486d3d-f357-4ca8-8460-494d09e4a438.

On behalf of the IBA's Regulation Committee, we ask that you please forward any comments you may have to becca.verhagen@int-bar.org by 28 February 2018.

New Chambers - Douglas Menzies Chambers, Melbourne

I have taken chambers in Douglas Menzies Chambers, Level 6, Room 601, 180 William Street, Melbourne (adjacent to the Supreme Court of Victoria).

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I first signed the Victorian Bar Roll in 2007 (see VicBar Profile). I accept briefs from Victorian solicitors, corporate and government counsel, and insurers, to advise and appear in my areas of expertise, in particular regulatory enforcement proceedings in the Victorian Registry of the Federal Court of Australia.

I also accept appointments as an Arbitrator and Mediator in Melbourne. The Victorian Bar Mediation Centre is located on Level 3 of Douglas Menzies Chambers.